Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/digestofdecisionOOIustrich DIGEST OF DECISIONS UNDER THE INTERSTATE COMMERCE ACT FROM 1908 BY HERBERT C. LUST AND RALPH MERRIAM OF THE CHICAGO BAR CHICAGO. ILL., 1913 X5LX COPYRIGHT A. D. 1913 By HERBERT C. LUST and RALPH MERRIAM • •::i V This book is dedicated to the memory oj EDWARD A. MOSELET, Secretary oj the Interstate Commerce Commission from its inception until his death in IQII, whose unfailing courtesy, devotion to duty, broad knowledge and sympathy won for him the esteem and affection of the traffic world. 261215 PREFACE In this book every point of fact and law in every case arising under the Interstate Commerce Act since 1908 has been digested in full, includ- ing all decisions of the Interstate Commerce Commission (reported and unreported), and of the various United States and state courts. The book is arranged alphabetically by such subjects as are the ordinary and accepted divisions into which the principles governing interstate traffic would naturally classify themselves. This can best be seen by referring to the Table of Contents, which immediately follows, and which is a reprint of the entire classification. It is earnestly suggested that readers of this book study the Table of Contents very carefully. As about ten thousand points of traffic law are classified, it can readily be understood that familiarity with the classi- fication is necessary to make the book of the quickest available use. It has been attempted to evolve a logical and careful analysis of the field of traffic law and a classification which affords a birdseye view of the entire subject. All the cases on any one point are grouped together and familiarity with the classification will enable the reader to turn immediately to all the decisions pertaining to the subject in which he is interested. Inasmuch as there are many points which may not be logically classified under a particular heading, but may nevertheless have some bearing on it, Cross-References are inserted, which redirect the reader to such points. Thus, suppose the reader is looking up Advanced Rates and wants all the decisions on the question of burden of proof. He runs his eye down the analysis of "ADVANCED RATES" and finds : "II. Justi- fication of Increase, §3, Burden of Proof." By turning, then, to §3, under ADVANCED RATES, he will find the cases which deal specifically with the question of "Burden of Proof" as related to Advanced Rates, and also cross-references directing him toi other parts of the book where other decisions on dififerent phases of "Burden of Proof" will be found. In all cases where it is possible to do so, a so-called Fact Point has been made. These fact-points show tersely, but completely, all the evi- dence on which the Interstate Commerce Commission or the court bases its decision in the particular case. The authors have attempted to sum- marize in easy, readable style ton mile revenues, distances, commodities, PREFACE rate comparisons and other evidence presented in the particular case. Not only, therefore, have all traffic principles been classified, but also the economic principles and facts governing each particular case. The decisions are arranged chronologically under each section, the most recent decision being placed first. If the decision of the Interstate Commerce Commission has been modified or reviewed by any court, rehearing denied, dissenting or concurring opinion filed, such fact is noted. At the back of the book will be found indexes to the cases, commodi- ties and localities involved. A reader interested in any particular case, by referring to the index, will find reference to every page of the book on which that case appears, and also a reference to the fact point on each case. Every point of law and of fact in this book has been rechecked at least seven times, with a view of avoiding inaccuracies of detail. If any are found, the authors will be more than pleased to be informed, so that such discrepancies may be corrected in future editions. The authors have contributed equally in the preparation of this book. It is proper to mention, however, that the classification is by Mr. Lust. We wish to express our appreciation of the courtesy of the Interstate Commerce Commission in giving us access to and permission to use its official records, and for its cooperation in other respects. Our thanks are also due to the West Publishing Company for courtesies extended. Herbert C. Lust. Ralph Merriam. (Chicago, 111., 1913.) TABLE OF CONTENTS. References are to pages. Page ABSORPTION OF CHARGES 1 I. APPLICATION OF ABSORBED RATE. §1. In generaL 1 II. DISCRIMINATION. §2. Absorption subsequent to shipment 1 §3. Refusal to absorb 2 III. CONTROL AND REVIEW. §4. In general 2 ACCOUNTING I. POWER TO REGULATE 2 ACT TO REGULATE COMMERCE 3 I. CONSTITUTIONALITY 3 II. INTERPRETATION IN GENERAL 8 III. TIME OF TAKING EFFECT 7 IV, ENFORCEMENTS 7 V. AMENDMENTS 8 ACTIONS AT LAW 8 Cross-references. ADDITIONAL CHARGES 8 ADJACENT FOREIGN COUNTRY 8 ADVANCED RATES 8 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 9 (1) Inquiry into reasonableness 9 (2) Power to require advance 10 (3) Prescribing minimum rate 10 (4) To suspend advance 10 (5) To suspend reduction 10 §2. Limitation on power 11 II. JUSTIFICATION OF INCREASE. §3. Burden of proof 11 §4. Effect 12 §5. Right to advance 12 (1) To avoid reducing other rates 14 (2) To equalize rates 14 (3) To preserve commodity relationship 16 (4) Unreasonably low prior rate 17 §6. Right to earn 17 (1) On bona fide investment 17 (2) On unearned increment 17 (3) On reproduction value 17 (4) On surplus 18 (5) For permanent improvements 19 (6) All traffic will bear 19 (7) Cost of insurance 20 vli vill TABLE OF CONTENTS m. EVIDENCE. Page §7. Change in conditions 20 (1) In general ? .'. . 20 (2) Increased operating expenses 23 (3) Impairment of credit 24 (4) Cessation of competition 24 §8. Presumptions 26 (1) Continuance of prior rate 26 (2) Temporary reduction 29 §9. Concerted action 30 §10. Economy of management 30 §11. Scientific management 31 §12. Branch lines 31 (1) Operation 31 (2) Purchase 31 §13. Detriment to shipper 31 §14. Benefit to industry 36 -| §15. Standard for judging advance 36 1 §16. Uniformity of advance 37 I\\ REASONABLENESS OF ADVANCED RATES. \ §17. In general 38 §18. Circumstances and conditions 41 (1) Low receipts per ton mile 41 (2) Water competition 42 (3) Heavy and uniform tonnage 42 (4) Low-grade commodity 43 (5) Ratio of rate to value 43 (6) To gain import duty 44 (7) Rates in like territory 44 (8) Circuitous route . . .^ 44 (9) Use of commodity .| 45 (10) Increased divisions ./ 45 V. DISCRIMINATION THROUGH ADVANCE. §19. In general 45 VI. REMEDIES AND PROCEDURE. §20. Injunctions 48 §21. Investigation 49 VII. REPARATION. §22. In general 50 ADVERTISING 51 I. OF EXCURSION TICKETS 51 II. AS REBATES 51 AGENCY 51 Cross-references. ALASKA 51 L REGULATION OF RATES 51 ALLOWANCES 52 I. CONTROL AND REGULATION. §1. Commission's right to investigate 52 '*^*-§2. Power to prescribe 53 §3. Effect of order 53 II. PUBLICATION AND TARIFFS. §4. Obligation to file 54 §5. Effect of publication 54 §6. Construction 64 TABLE OF CONTENTS Ix III. DISCRIMINATION. Page §7. Obligation to treat all alike 54 — - §8. Particular allowances 55 (1) Compressing cotton 55 (2) Cooperage and grain doors 66 (3) Elevation of grain 56 (4) Lighterage 58 (5) Spotting cars 59 (6) Staking 60 (7) Transfer 60 IV. LEGALITY OF ALLOWANCES. §9. In general 61 §10. Transportation service performed by shipper 61 §11. Transportation facility 62 ^^§12. What is not transportation service 63 (1) Accessorial or incidental service 63 (2) Operation of plant facility 64 V. REASONABLENESS OF ALLOWANCES. §13. In general 66 VI. DAMAGES AND REPARATION. §14. In general 66 VII. AS REBATES. §15. In general 67 VIII. CRIMINAL LIABILITY §16. In general 68 ALTERNATIVE RATES 69 I. ESTABLISHMENT AND REASONABLENESS 69 ANY-QUANTITY RATE 70 I. REASONABLENESS AND APPLICATION 70 ASSOCIATION 71 I, RIGHT TO SUE 71 ASSORTING PACKAGES 72 ATTORNEYS' FEES 73 AUCTION COMPANY 73 BACK HAUL 74 Cross-references. BAGGAGE TRANSFER 74 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 74 II. EXCLUSIVE CONTRACT TO SOLICIT 74 BASING POINTS AND LINES 74 Cross-references. BILLS OF LADING 74 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 75 §2. Recommendation of certain forms 75 TABLE OF CONTENTS II. DUTY OF CARRIER TO ISSUE. Page §3. Rail-and-water transportation 75 §4. At transit points 75 §5. One lading for several shipments 76 III. CONSTRUCTION. §6. In general 77 §7. Statement of weight 77 §8. Statement of shipping point 77 §9. Conflicting provisions 77 (1) Between rate and route 77 (2) With tariff 78 IV. LIMITATION OF LIABILITY 78 BLANKET RATES 78 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 78 II. LEGALITY OF GROUP RATES. §2. In general 79 §3. Justification 81 §4. Public benefit 81 §5. Custom 82 in. EXTENSION OF ZONE. §6. In general 82 §7. Equalizing advantage of location 83 §8, Proximity to established group 87 §9. Grading rates 90 §10. Differentials 92 IV. REASONABLENESS. §11. Of group 93 §12. Of individual rate 96 V. DISCRIMINATION. §13. In general 97 VI. REMEDY FOR UNLAWFUL GROUPING. §14. In general 99 §15. Scope of complaint 99 VII. EVIDENCE. §16, Burden of proof 99 §17. Extent of zone 100 §18. Comparisons 101 BRANCH LINES 101 I. REASONABLENESS OF RATES. §1. In general 101 §2. Compared with main lines 103 §3. As part of system 104 §4. In competition with main lines 105 IL DUTY TO ROUTE. §5. In general 106 BREAKING OF RATES 106 Cross-references. BRIDGE TOLLS 106 I. REASONABLENESS 106 BULK SHIPMENTS 107 Cross-references. TABLE OF CONTENTS Page BULKHEADS 107 Cross-references. BURDEN OF PROOF 107 Cross-references. BUSINESS SECRETS 107 I. DISCLOSURE FORBIDDEN 107 CARS AND CAR SUPPLY 108 I. CONTROL AND REGULATION, A. Jurisdiction of Commission. §1. Over car distribution 108 §2. Car regulations 109 §3. Fuel cars 109 §4. Private cars 109 §5. Intrastate cars 110 §6. To award damages 110 n. DUTY TO FURNISH CARS. §7. In general 110 §8. Size ordered by shipper 112 §9. Form of order 114 §10. Tank cars 114 §11. At transit point 114 III. ASSIGNMENT AND DISTRIBUTION, A. Counting of Cars. §12. In general 114 §13. Private cars 116 §14. Foreign cars 117 §15. Railway fuel cars 117 §16. Pooling by shipper 118 §17. Tank cars 118 §18. Detention of cars 118 §19. When counted for loading 119 §20. Car famine 119 §21. Reward for prompt release 119 §211^. Shippers on branch lines 120 B. Rating of Mines. §22, Coke-oven basis 120 §23. Commercial plus physical capacity 120 §24. Idle-hour system 121 §25. Mine capacity plus shipments 122 §26. Physical capacity less railway fuel 122 C. Removal of Discrimination. §27. Effect 122 IV. CONTRACTS FOR CAR SUPPLY. §28. In general 123 V. DUTY TO TRANSPORT CARS. §29. In general 123 §30. Interchange of cars 123 §31. Private cars 124 §32. Rates on private cars 124 VI. REMEDIES AND DAMAGES, §32i^.In general 125 §33. Action at law 125 §34. Defenses 125 §35. Res adjudicata 126 §36. Evidence 126 xil TABLE OF CONTENTS Page CARTAGE 126 CLAIMS 126 I. WHEN STATUTE OF LIMITATIONS RUNS. §1. In general 126 §2. Claims accruing before Aug. 28, 1906 127 §3. Date of delivery of shipment 127 §4. Date of payment of charges 128 §5. Date of amending claim 128 II. INFORMAL COMPLAINTS. §6. Effect of informal letter 128 §7, Necessity of formal complaint 130 §8. Requisites of informal complaint 130 III. PRESENTATION TO CARRIERS. §9. Advisability 131 §10. Regulations 131 CLASS RATES 132 CLASSIFICATION 132 I. RIGHT OF CARRIER TO ESTABLISH. §1. In general 132 §2. Jurisdiction of Commission 133 II. BASIS OF CLASSIFICATION. §3. In general 133 §4. Bulk or weight of commodity 134 §4%."Knocked-down" shipments 135 §5. C. L. and L. C. L. shipments 136 §6. Competition 137 §7. Mixed carloads 138 §8. Possibility of misbilling 140 §9. Risk 140 §10. Use of commodity 140 §11. Value 141 III. CLASSIFICATION REGULATIONS. §12. Bulk shipments and ownership 144 §13. Loading and unloading 145 §14. Marking and addressing 146 §15. Minimum charge 148 §16. Packing 150 IV. COMPARATIVE RATINGS. A. Analogous Articles. §17. In general 151 §18. Specific comparisons 153 (1) Bar and band iron 153 (2) Cocoa butter substitutes 153 (3) Coffee percolators 154 (4) Earthenware crucibles 154 (5) Iron and steel articles 154 (6) Motorcycles 154 (7) Multigraphs 155 (8) Picture postcards 155 (9) Plate glass 155 (10) Triplex cloth 155 (11) Wire coat hooks 155 §19. Evidence and procedure 156 TABLE OF CONTENTS xlll Page COMMERCE COURT 156 I. JURISDICTION. A. Review of Commission's Orders. §1. Car distribution 156 §2. Denying aflarmative relief 156 §3. Granting affirmative relief 157 §4. Fixing rates 157 §5. Reparation orders 157 §6. Questions of law and fact 158 II. PROCEDURE. §7. Examination of record 158 §8, Judicial notice 158 COMMODITY RATES 159 I. CREATION AND PURPOSE. §1. Nature in general 159 §2. Relation to class rates 159 II. APPLICATION AND CONSTRUCTION. §3. Specific commodity rating 159 §4. Creation subsequent to shipment 161 COMMODITIES CLAUSE 161 I. CONSTITUTIONALITY. §1. In general 161 II. CONSTRUCTION 162 COMMON CARRIER 163 I. TEST OF STATUS. §1. Incorporation 163 §2. Lease of line 163 §3. Public offer to carry 163 §4. Refusal to publish tariffs 166 §5. Stock ownership 166 §6. Transportation of private cars 166 II. DETERMINATION OF STATUS. §7. Question of fact 166 COMMUTATION FARES 166 COMPARATIVE RATES 167 Cross-references. COMPETITION 167 Cross-references. COMPRESS COMPANIES AND CHARGES 167 I. CONTROL AND REGULATION 167 II. REASONABLENESS OF CHARGES 167 CONCENTRATING RATES AND PRIVILEGES 169 CONCURRENCES 169 Cross-references. Xlv TABLE OF CONTENTS Page CONSTITUTIONAL LAW 170 Cross-references. CONSTRUCTION 170 Cross-references. CONTRACTS 170 Cross-references. CONTROL AND REGULATION 170 Cross-references. COUNTER CLAIM 170 Cross-references. COURTS 170 I. ACTIONS. §1. In general 170 §2. Defenses 171 §3. Mandamus 172 §4, New trial 172 §5. Suits against Commission 172 II. APPEAL. §6, In general 172 III. UNITED STATES COURT. §7. Concurrent jurisdiction 173 §8. Exclusive jurisdiction 174 §9. Original jurisdiction 174 IV. UNITED STATES SUPREME COURT. §10. In general 175 V. STATE COURTS. §11. In general 176 CREDIT ACCOUNT 179 I. EXTENSION OF CREDIT FOR CHARGES. §1. Right to extend credit 179 §2. Right to discriminate 179 §3. Criminal liability 180 CROSS-REFERENCES IN TARIFF 180 Cross-references. CUSTOM 180 Cross-references. CRIMES 180 I. THE ELKINS ACT, §1. Constitutionality 181 §2. Construction 182 II. DISCRIMINATION. §3, Credit account 182 III. FREE TRANSPORTATION. §4. In general 183 IV. MISBILLING. §5. In general 183 TABLE OF CONTENTS XV V. OVERCHARGES. Page §6. In general 184 VI. REBATING. A. Elements of Offense. §7. In general 185 §8. Intent and knowledge 186 §9. Payment 187 §10. Posting of tariff 187 §11. Route and "common arrangement" 188 §12. Transportation 189 B. Number of Offenses. §13. Payment 189 §14. Shipments 190 C. Liability. §15. Act of agent 190 §16. Connecting carrier 190 Vn, INDICTMENT. A. Charging Elements of Offense. §17. In general 190 §18. Concession or rebate 191 §19. Description of device 191 §20. Language of statute 191 §21. Payment 191 §22. Posting of tariff 191 §23. Route 192 B. Joinder of Defendants. §24. Principal and agents 192 C. Proof and Variance. §25. In general 192 D. Venue, §26. In general 192 VIII. DEFENSES. §27. Former jeopardy 193 §28. Statute of limitations 193 IX. PROCEDURE. §29. Province of court 193 §30. Province of jury 193 §31. Extent of verdict 194 X. PENALTIES. §32. Excessive fine 194 XI. STATE REGULATION. §33. In general 194 DAMAGES 194 Cross-references. DEMURRAGE 194 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 194 n. RIGHT TO ASSESS. §2. In general 195 §3. Discrimination 196 §4. Failure of consignee to accept 196 §5. Fault of shipper 197 §6. One shipment in two cars 198 §7. Order-notify shipments 198 §8. Pending dispute 198 §9. Prior to actual delivery 200 §10. Private cars 201 xvi TABLE OF CONTENTS III. PUBLICATION AND TARIFFS. Page §11. Obligation to file 202 IV, DEMURRAGE RULES. §12. Construction in general 203 §13. Average demurrage plan 203 §14. Bunching 203 §15. Free time 204 §16. Placement or arrival-notices 207 §17. Railroad errors or omissions 207 DEPOSITIONS 208 Cross-references. DEPOTS 208 Cross-references. DIFFERENTIALS 208 I. ESTABLISHMENT AND CONTROL. §1. In general 208 §2. Relation of classification 209 II. APPLICATION. §3. C. L. and L. C. L. shipments 209 §4. Through shipments 210 III. PURPOSE. §5. To equalize conditions 210 §6. To equalize consuming points 214 §7. To equalize producing points 216 DISCRIMINATION 221 L CONTROL AND REGULATION. §1. Construction of the Act 222 §2. Jurisdiction of Commission 223 II. DETERMINATION OF DISCRIMINATION. §3. In general 225 §4. Similar conditions 228 §5, Test of discrimination 240 III. JUSTIFICATION. §6. Carrier as shipper or consignee 241 §7. Carrier not serving prejudiced point 243 §8. Competition 246 (1) In general 246 (2) Artificial competition 247 (3) Railroads in general 248 (4) Short-line carriers 253 (5) Water carriers 254 §9. Disadvantage of location 259 §10. Encouragement of own territory 266 §11. Low state rate 267 IV. REMOVAL OF DISCRIMINATION. §12. Reduction of rates 269 §13. Disturbance of settled adjustment 269 V. PROCEDURE AND EVIDENCE. §14. Burden of proof 271 §15. Showing of damage 273 §16. Actions in state courts 274 §17, Reparation 275 DISTANCE TARIFF 275 Cross-references. TABLE OP CONTENTS XVll Page DIVISIONS 275 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 275 IL PUBLICATION AND TARIFFS. §2. Obligation to file 276 III. AGREEMENTS FOR DIVISIONS. §3. Computation 276 §4. Inability to agree 277 §5. Reductions 277 §6. Right to divisions 277 §7. As evidence 277 IV. LEGALITY 277 V. REASONABLENESS 277 DOMESTIC RATES 279 Cross-references. DRAYAGE CHARGES 279 ELECTRIC LINES 279 L CONTROL AND REGULATION 279 XL THROUGH ROUTES WITH STEAM ROADS 280 III. RIGHT TO FUEL RATE 281 IV. TRANSFERS AND RATES 282 ELEVATION 283 Cross-references. ELKINS ACT 283 Cross-references. EMBARGO 283 EMPLOYMENT 283 I. HOURS OF SERVICE ACT 283 EQUALIZATION OF RATES 284 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 286 XL CIRCUMSTANCES AND CONDITIONS. §2. In general 288 §3. Commercial advantages and disabilities 290 §4. Competition 297 (1) In general 297 (2) Railroad 298 (3) Rail-and-water 303 (4) Water 303 §5. Low state rate 305 §6. Preference of markets 306 §7. Size of community 310 III. EFFECT OF EQUALIZATION. §8. Adjustment of related rates 310 EQUIPMENT 313 Cross-references. TABLE OF CONTENTS Page ERIE CANAL 313 Cross-references. EVIDENCE 313 I. BURDEN OF PROOF. §1. In general 314 II. CIRCUMSTANCES AND CONDITIONS OF PROBATIVE VALUE. §2. Advantage of location 317 §3, Agreed facts, admissions and agreements 317 §4. Averages 317 §5. Basing point system 317 §6. Bona-fide investment 318 §7. Capitalization 318 §8. Car-mile or train-mile revenue 318 §9. Change in conditions or service 319 §10, Combinations to fix rates 319 §11. Comparison of classifications 319 §12. Comparisons of commodities 319 (1) In general 319 (2) Anthracite and bituminous coal 319 (3) Bicycles and vehicles 320 (4) Blacksmith coal and other coal S20 (5) Brick 320 (6) Cement and potatoes 320 (7) Copper and lumber 320 (8) Cottonseed meal and hulls 320 (9) Cross-ties and lumber 321 (10) Fertilizer 321 (10) Dairy products 321 (11) Flaxseed and grain 321 (12) Flour and grain 321 (13) Grain and products 321 (14) Ice 321 (15) Junk and scrap iron 321 (16) Lumber and products 321 (17) Malt and barley 321 (18) Motorcycles and bicycles 321 (19) Oil 322 (20) Pulpwood and lumber 322 (21) Letter copiers and presses 322 (22) Perishable produce and dairy products 322 (23) Posts and poles and sawed lumber , 322 (24) Sash doors and blinds and lumber 322 (25) Staves and headings, and hardwood lumber 322 (26) Sulphuric acid and fertilizer 322 (27) Wool, hops and oranges 322 (28) Wool and sheep 322 (29) Wheat and barley and corn, rye and oats 823 (30) "Wyandotte Cleanser" and soda ash 328 §13. Comparisons of rates 323 (1) In general 323 (2) Divisions and joint rates 325 (3) Divisions and local rates 326 (4) Import and domestic rates 327 (5) Proportional and local rates 827 (6) State and interstate rates 327 TABLE OF CONTENTS xix II. CIRCUMSTANCES AND CONDITIONS OF PROBATIVE VALUE— Cont'd Page §14. Competition 328 (1) In general , 328 (2) Potential 330 (3) Railroad 330 (4) Rail and water 330 (5) Water 331 §15. Contract relying on rate 333 §16. Cost of production 333 §17. Cost of operation 333 §18. Cost of service 335 §19. Credit 336 §19i^.Custom 336 §20. Distance of haul 336 §21. Dividends 338 §22. Equipment furnished 338 §22i^.Expert evidence 338 §23. Failure to serve prejudiced locality 338 §24. Fixed charges 339 §25. Governmental regulation 839 §26. Import duty 839 §27. Investment relying on rate 339 §28. Local rates and combinations 840 §29. Long continuance of voluntary rate 340 §30. Low rate in opposite direction 342 §31. Manufactured product 343 §32. Market competition 343 §33. Merger of terminals 343 §34. Mineral lands owned by carrier 844 §35. Municipal charter 344 §36. Need for revenue 344 §37. New lines 844 §38. New rates 345 §39. Notice 345 §40. Oral testimony 345 §41. Original cost of road 345 §42. Panama Canal 346 §42 H. Practical construction 346 §43. Past rates 846 §43 ^.Permanent Improvements 846 §44. Previous haul on raw material 346 §45. Profit of shipper 346 §46. Rate to carrier as shipper or consignee 347 §47. Rate via competing carrier 347 §48. Rebates 349 §49. Reproduction value of road 349 §50. Return on investment 349 §51. Revenue of road 349 §52, Risk of loss or damage 350 §53. Size of community 351 §54. Size of load 351 §55. Standard of lines 351 §56. Standard of rate 351 §57. Surplus 352 §58. Ton-mile revenue 352 §59. Two-line haul 353 §591^ .Unearned increment 354 §60. Unpublished rate 354 §61. Value of commodity 354 §62. Value of service 855 TABLE OF CONTENTS II. CIRCUMSTANCES AND CONDITIONS OF PROBATIVE VALUE— Cont'd Page §63. Volume of traffic 355 §64. Voluntary or subsequent reduction of rate 356 §64%.Wages 360 §65. Weight of shipment 360 §66. Widespread rate adjustment 361 III. JUDICIAL NOTICE, §67. In general 362 IV. PRESUMPTIONS. §68. In general 363 V. STARE DECISIS. §69. In general 363 EXAMINERS 364 Cross-references. EXCHANGE ORDERS 364 Cross-references. EXCLUSIVE CONTRACTS 364 EXCURSION RATES 364 Cross-references. EXPEDITED SERVICE 364 EXPENSE BILLS 365 Cross-references. EXPERIMENTAL RATE 365 Cross-references. EXPERT TESTIMONY 365 Cross-references. EXPLOSIVES 365 EXPORT RATES AND FACILITIES 365 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 365 II. BILLS OF LADING 366 in. DISCRIMINATION 366 IV. PUBLICATION AND TARIFFS 370 V. REASONABLENESS 371 EXPRESS COMPANIES 372 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 373 §l^.State regulation 374 II. FACILITIES. §2. Delivery and receipt 374 §3. C. O. D. shipments 374 §4, Export service 375 §5. Free transportation 375 §6. Money orders 375 §7. Prepaid and collect shipments 376 §8. Special contracts 376 TABLE OF CONTENTS xxi :il. DISCRIMINATION. Page §9. In general 377 v. RATES. §10. Reasonableness in general 378 §11. Specific rates 378 (1) Bread and cake 378 (2) Celery ; . 379 (3) Cream cans 379 (4) Drygoods 379 (5) Eggs 380 (6) Fish 380 (7) Guinea pigs, rabbits, rats 380 (8) Merchandise 380 (9) Milk and cream 380 (10) Raw furs 382 (11) Sample brick 382 V. ROUTE. §12. In general 382 71. TARIFFS. §13. Construction 383 §14. Double graduate charges 383 §15. Graduate scale system > 383 §16. Mixed shipments 384 ni. EVIDENCE. §17. In general 384 §18. Bulk 385 §19. Commercial advantages 385 §20. Comparisons 385 §21. Competition 385 §22. Long maintenance of rate 385 §23. Percentage of freight rate 385 §24, Profit and capitalization ; 385 §25. Surplus 386 §26. Value of express property 386 FACILITIES AND PRIVILEGES 386 I. JURISDICTION OF COMMISSION. §1. In general 386 II. CARRIER'S DUTY TO FURNISH OR PERMIT. §2. In general 388 §3. Compression • 389 §4. Concentration 390 §5. Cooperage and bailing 391 §6. Dumping and trimming 391 §7. Free back haul 391 §8. Free storage 392 §9. Grain doors 392 §10. Loading, unloading, bracing, etc 393 §11. Notifying shipper of rejection 395 §12. Scaleage deductions and shrinkage 395 §13. Staking and binding 396 §14. Storing, grading and resacking 396 §15. Transit 396 §16. Wharfage 401 II. PUBLICATION AND TARIFFS. §17. Obligation to publish 402 §18. Reshipping under through rate 403 §19. Retroactive application 405 §20. Substitution of tonnage 406 V. DISCRIMINATION. §21, In general 408 xxil TABLE OF CONTENTS Page FERRIES 412 FEEDING-IN-TRANSIT 412 Cross-references. FIRE 412 Cross-references. FLOATAGE 412 Cross-references. FOREIGN COMMERCE 412 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 412 FORWARDERS 413 I. STATUS 413 II. RIGHT TO COMBINE SHIPMENTS 414 FREE 415 STORAGE 415 TIME 415 TRANSPORTATION 415 Cross-references. GOVERNME1MT MATERIAL 415 Cross-references. GRADING RATES 415 Cross-references. GROUP RATES 415 Cross-references. IMPORT TRAFFIC 415 I. DETERMINATION OF STATUS 415 XL REASONABLENESS OF RATES 416 INJUNCTIONS 417 Cross-references. INSPECTION 417 Cross-references. INSURANCE 417 Cross-references. INTERCHANGE OF TRAFFIC 417 Cross-references. INTEREST ON FUNDED DEBT 417 Cross-references. TABLE OF CONTENTS xxili Page INTERMEDIATE CARRIER ; 417 Cross-references. INTERMEDIATE CLAUSE 417 Cross-references. INTERSTATE COMMERCE 417 I. DETERMINATION. §1. Beginning and end of transit 418 §2. State shipment through another state 419 §3. Participation in interstate movement 419 II. CONTROL AND REGULATION. §4, State 421 §5. United States 425 INTERSTATE COMMERCE COMMISSION 426 I. JURISDICTION. §1. In general 426 II. PRIMARY JURISDICTION. §2. In general 429 §3. Finality of findings 430 III. OVER PROCEDURE, §4. Examiners 431 §5. Orders 431 §6. Witnesses 431 IV. OVER RAILROADS. §7. Capitalization 431 §8. Physical valuation 431 V. OVER RATES. §9. Interstate 431 §10. Intrastate 435 §10%.Territorial 436 §11. Suspension 436 §12. Undercharges 436 §13. Unpublished rate 436 VI. TO AWARD DAMAGES. §14. In general 436 INTERVENERS 438 Cross-references. INTRASTATE COMMERCE 438 Cross-references. JOINT RATE 438 Cross-references. JUDICIAL NOTICE 438 Cross-references. JUSTIFICATION 439 Cross-references. KNOCKED-DOWN SHIPMENTS 439 Cross-references. xxiv TABLE OF CONTENTS Page LACHES 439 Cross-references. LAND GRANT RAILROADS 439 LEASE 439 Cross-references. LEGAL RATE 439 Cross-references. LEGALITY 439 Cross-references. LIGHTERAGE 439 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 439 II. CHARGES. §2. Reasonableness 439 §3. Discrimination 440 III. ALLOWANCES. §4. In general 441 LOADING AND UNLOADING 441 Cross-references. LOCAL RATES 441 Cross-references. k I ONG AND SHORT HAULS 442 i L CONTROL AND REGULATION. * §1. Constitutionality of section 4 442 §2. Jurisdiction of Commission 442 n. SECTION 4 AS AMENDED. §3. Constitutionality 443 §4. Exceptions 443 m. APPLICATION OF SECTION 4 TO RATES. §5. Intermediate points 448 §6. Intermediate points off line 457 IV. COMPETITION AS JUSTIFICATION. §7. In general 458 §8. Markets 459 §9. Railroad 460 §10. Water 466 V. PROCEDURE. §11. Complaints and orders 474 §12. Evidence 475 (1) Burden of proof 475 (2) Circumstances of probative force 475 LOSS AND DAMAGE 476 I. THE CARMACK AMENDMENT. §1. Constitutionality 476 §2. Construction in general 479 §3. Effect of state legislation 479 §4, Jurisdiction of Commission 480 §5. Jurisdiction of state courts 481 TABLE OF CONTENTS xxv II. CARRIERS' LIABILITY. Page §6. Initial carrier 482 §7. Intermediate carrier 487 §8. Delivering carrier 487 §9. Agreed or restricted valuation 487 §10. Common law liability 490 §11. Notice of loss 490 §12. Settlements and rights inter se 491 §13. Special damages 492 III. EVIDENCE. §14. Acts of connecting carrier 492 §15. Burden of proof 492 §16. Judicial notice 492 MARINE INSURANCE 492 MARKING AND ADDRESSING 493 Cross-references. MEETING RATES 493 Cross-references. MILEAGE SCALE 493 Cross-references. MINIMUMS 493 I. APPLICATION OF MINIMUM. §1. In general 493 §2. Effect of not publishing 495 §3. Furnishing car of minimum ordered 496 §4. Larger car furnished than ordered 497 §5. Minimum higher than car capacity 500 §6. Mixed carloads 501 §7. Reasonableness 501 §8. Two cars for one ordered 608 MISBILLING 511 Cross-references. MISROUTING 512 Cross-references. MISTAKE 512 Cross-references. MIXED CARLOADS 512 Cross-references. MOOT QUESTION 512 Cross-references, NARROW GAUGE RAILROADS 512 I. REASONABLENESS OF RATES 512 NEWS STAND 513 Cross-references. xxvi TABLE OF CONTENTS Page NOTICE 513 Cross-references. OVERCHARGES 513 I. ACTIONS FOR RECOVERY. §1. Definition of overcharge 513 §2. Jurisdiction of Commission 513 §3. Jurisdiction of state courts 513 §4. Jurisdiction of U. S. courts 514 §5. Proof and evidence 514 §6. Right to attorney's fees 515 §7. Statute of limitations 515 II. DUTY TO REFUND. §8. In general 515 §9. Necessity of order 516 III. CRIMINAL LIABILITY. §10. In general 517 PANAMA CANAL 517 Cross-references. PASSENGER FARES AND FACILITIES 518 I. CONTROL AND REGULATION. §1, Jurisdiction of Commission 518 II. REASONABLENESS. §2. In general 518 §3. Basing fares 519 §4. Certificate plan 520 §5. Commutation fares 520 §6. Mileage and excursion rates 522 §7. Party rates 523 §8. Validation 523 III. DISCRIMINATION IN FACILITIES. §9. In general 524 §10. Baggage 525 §11, Colored passengers 525 §12. Free transportation 526 §13. Stations 527 §14. Through routes and rates 528 IV. CLAIMS FOR DAMAGES. §15. Errors of ticket agents 530 §16. Lost tickets 631 PASSES 531 Cross-references. PAST RATES 532 Cross-references. PEDDLER CAR SERVICE 532 PERCENTAGE SYSTEM 532 Cross-references. PHYSICAL VALUATION 532 Cross-references. TABLE OF CONTENTS xxvll Page POTENTIAL COMPETITION 532 Cross-references. PRECOOLING 532 I. JURISDICTION OF COMMISSION 532 II. RIGHT OF SHIPPER 532 III. EFFICIENCY OF METHOD 533 IV. LIABILITY FOR DAMAGE 534 PREPAY STATIONS 534 Cross-references. PRESUMPTIONS 534 Cross-references. PROCEDURE BEFORE COMMISSION 534 L PRACTICE. §1. In general 534 II. COMPLAINT. §2» Form and issues tendered 535 §3. Notice of complaint 541 §4. Amendment 542 §5. Hearing 542 §6. Briefs 543 §7. Oral argument 543 §8. Rehearing 544 §9. Costs, attorneys' fees, etc 544 III. MOTIONS. §10. Dismissing complaint 544 (1) In general ,,[ 544 (2) Adjustment since filing 644 IV. ORDERS OF COMMISSION. §11. Modification, validity and effect 547 12. Review 549 V. PARTIES. §13. Necessary and proper parties 549 VI. SET-OFF. §14. In general 552 VII. EFFECT OF EVIDENCE. §15. Equities of cause 552 §16. Judicial notice [, 552 §17. Res adjudicata 553 §18. Requesting information of carrier 554 §19. Tests of revenue 554 PROPORTIONAL RATES 555 L APPLICATION 555 n. DISCRIMINATION 556 III. LEGALITY 558 IV. REASONABLENESS AND EVIDENCE 559 PULLMAN COMPANY 561 Cross-references. RATE VIA COMPETING LINE 562 Cross-references. xxviii TABLE OF CONTENTS Page RATE WARS 562 Cross-references. REASONABLE RATES 562 Cross-references. REASONABLENESS OF RATES 562 I. CONTROL AND REGULATION. §1. In general 563 II. ELEMENTS DETERMINING REASONABLENESS. §2. In general 566 §3. Actions of state commissions 572 §4. Attractiveness of traffic 573 §5. Capitalization 574 §6. Car-mile or train-mile revenue 574 §7. Changed circumstances 575 §8. Competition 576 (1) In general 576 (2) Railroad competition 581 (3) Rail-and-water 581 (4) Water competition 582 §9. Cost of service 584 §10. Distance 586 §1L Earnings 588 §12. Economical management 589 §12^.Equalizing of rates or markets 590 §13. Equipment furnished 591 §14. Investment relying on rate 591 §15. Investment of carrier 592 §16. Long-continued adjustment 592 §17. Manufactured product 595 §18. Mineral lands owned by carrier 595 §19. Natural advantages 595 §20. Need for revenue 596 §21. Obsolescence 597 §22, Origin of traffic 597 §23. Ownership or use of commodity 597 §24. Paper rate 598 §25. Past rates 599 §26. Permanent improvements 600 §27. Profits of shipper 601 §28. Relativity of the rate 602 §29. Reproduction value of road 605 §30. Revenues from facilities 605 §31. Special service 605 §32. Standard for carriers 605 §32*^. Subsequent reduction 606 §33. Surplus 607 §34. Terminal facilities 608 §35. Time of changing rate 608 §36. Ton-mile revenue 608 §37. Two-line haul 609 §38. Value of commodity 609 §39. Value of service 610 §40. Volume of traffic 611 §40%.Wages 612 §41, Weight 612 TABLE OP CONTENTS xxlx III. REASONABLE RATES. Page §42. Adding-machine paper 613 §43. Agricultural implements 613 §44. Antimony ware, baskets, brushes, camphor, earthenware, gums, rugs, sago, tea and tapioca 613 §45. Asphaltum 614 §46. Automobile parts 614 §47. Beer 614 §48. Beer bottles and packages 615 §49. Bottle caps 615 §50. Box shooks 616 §51. Brass and iron tubing 616 §52. Brick 616 §53. Broom corn 618 §54. Burlap bags 618 §55, Butter boxes 618 §56. Butter, eggs and poultry 618 §57. Canned goods 619 §58. Car wheels and axles 620 §59. Catsup 620 §60. Cement 620 §61. Chautauqua outfits 620 §62. Cheese 621 §63. Cheese boxes 621 §64. Cinders 621 §65. Clam shells 621 §66. Class rates 621 §67. Coal 624 §68, Coal-tar paving cement 630 §69. Coal-tar paving pitch 630 §70. Coke 630 §71. Condensed milk 630 §72. Corn shucks 631 §73. Cotton 631 §74. Cotton linters, cotton shoddy lining 632 §75. Cotton seed and products ' 632 §76. Cotton waste 634 §77. Doors 634 §78. Dried fruits 634 §79. Egg-case material 634 §80. Elm hub blocks 635 §81. Fertilizer 635 §82. Flaxseed and oats 636 §83. Flour 636 §84. Fruits and vegetables 637 §85. Fruit baskets 648 §86. Furniture 648 §87. Gas machinery 649 §88. Go-carts 649 §89. Grain and hay 649 §90. Grates 650 §91. Gunpowder 651 §92. Hay, straw and alfalfa [[ 651 §93. Hickory spokes 652 §94. Ice ; ; 653 §95. Iron and steel bars, plates, sheets and structural steel 655 §96. Iron ore, iron products and iron pyrites ,[ 656 §97. Iron roofing, pipe, nails, wire, iron 658 §98. Junk 658 §99. Kanite 658 §100. Lead ore 658 XXX TABLE OF CONTENTS III. REASONABLE RATES— Cont'd Page §101. Leather, shoe material 659 §102. Lime 659 §103. Live stock 659 §104. Locomotives 664 §105. Lumber and products 665 §106. Malt 672 §107. Manila paper folders 673 §108. Masurite 673 §109. Merchandise , 673 §110. Metal furniture knobs 673 §111. Milk and cream 673 §112. Mine-prop logs 676 §113. Mohair 677 §114. Motorcycles 677 §115. Mussel shells , 677 §116. Newspaper 677 §117. Oil 678 §118. Packing-house products, meat and poultry 678 §119. Paper and stock 682 §120. Passenger car 682 §121. Peas, beans and hominy 682 §122. Petroleum 683 §123. Petroleum skimmings 684 §124. Plaster board 684 §125. Poles, piling and posts 684 §126, Phosphate rock and acid phosphates 685 §127. Potatoes 685 §128. Pulp wood 685 §129. Pyrite cinder 685 §130. Roofing material 686 §131. Resin 686 §132. Sacked corn 686 §133. Safety fuse 686 §134. Salt 687 §135. Sash weights 687 §136. Sawdust 687 §137. Second-hand steel rails and logging equipment 688 §138. Sheet-iron roofing 688 §139. Shingles 688 §140. Snapped corn 688 §141. Stamped ware 689 §142. Staves 689 §143. Stucco 689 §144. Sugar 689 §145. Sulphuric acid 690 §146. Tanners' outfits 691 §147. Tent pins 691 §148. Ties 691 §149. Tin-plate scrap 692 §150. Vehicles, wagons and buggies 692 §151. Walnut veneer 693 §152. Watermelons 693 §153. Wheat, corn and rye 693 §154. Wire 695 §155. Wood pulp 695 §156. Wool 695 REBATES 696 Oross-references. TABLE OF CONTENTS xxxl Page REBILLING 696 Cross-references. RECIPROCAL SWITCHING 697 Cross-references. RECONSIGNMENT 697 I. LEGALITY, §1. Right to grant privilege 697 II. DISCRIMINATION. §2. In general 698 III. REASONABLENESS OF CHARGES. §3. In general 699 IV. TARIFFS AND PUBLICATION. §4. Necessity of publishing 702 §5, Construction in general 702 §6. Retroactive application 703 V. PROCEDURE AND REPARATION. §7. In general 704 §8. Parties to complaint 704 RECORDS 704 Cross-references. REDUCED RATES 704 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 704 §2. Power to suspend 704 II. LEGALITY OF REDUCED RATES, §3. Charitable institutions 704 §4. Government material 705 §5. Returned or old shipments 705 REFRIGERATION 707 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 707 II. DUTY TO FURNISH. §2. In general 707 §3. Incidental services and charges 707 III. REASONABLENESS OF CHARGES. §4, In general 708 IV. TARIFFS AND PUBLICATION. §5. Obligation to file 710 §6. Construction in general 710 V. WEIGHTS. §7. Minimums 710 REGROUPING OF TERRITORY 711 Cross-references. RELATIVE RATES 711 Cross-references. xxxii TABLE OF CONTENTS Page RELEASED RATES 711 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 711 II. CONSTRUCTION AND APPLICATION. §2. Duty to inform shipper, 711 §3. Intention to use 711 in. LEGALITY. §4. In general 712 rV. REASONABLENESS. §5. In general 713 REPARATION 713 L JURISDICTION OF COMMISSION. §1. Necessity of and primary action by Commission 713 §2. Necessity of, and effect of finding of unreasonableness 715 §3. Power to award tort damages 720 II. RIGHT TO RECOVER. §4, Necessity of protest 722 §5. Necessity of first paying tariff rate 722 §6. Parties entitled to recover 723 §7. Statute of limitations 727 in. CIRCUMSTANCES DETERMINING RIGHT. §8. Erroneous publication 730 §9. Failure to post tariff 732 §10. Laches 733 §11. Rate via competing line 733 §12. Readjustment of rates 733 §13. Res adjudicata 733 §14. Special rate 734 §15. Unpublished charges 734 §16. Voluntary or subsequent reduction 734 §17. Willingness of carrier to pay 741 IV. LIABILITY FOR REPARATION. §18. Measure of reparation 742 §19. Parties to make refund 743 §20. Release of liability 745 V. PROCEDURE. §21. Formal proceedings 745 §22. Informal proceedings 746 §23. Court pleadings 746 REPORTS 747 Cross-references. RES ADJUDICATA 747 Cross-references. RESTRICTED RATES 747 L LEGALITY 747 RETURNED SHIPMENTS 748 Cross-references. REVENUES , 748 Cross-references. I TABLE OF CONTENTS xxxiil Page ROUTING AND MISROUTING 748 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 749 I CARRIER'S DUTY TO TRANSPORT. §2. Accustomed or natural route 749 §3, Conflict in billing between rate and route 751 §4. Direct and reasonable route 753 §5. Lower rate via competing line 760 §6. Right of carrier to route 760 §7. Shipper's instructions 761 IIL LIABILITY FOR MISROUTING. §8. Burden of proof 769 §9. Measure of damages 769 §10. Parties to make refund 770 m ULES AND REGULATIONS 771 Cross-references. SCHEDULE 771 Cross-references. SPECIAL CONTRACTS 771 L CONTROL AND REGULATION. §1. Constitutionality of Act 771 II. LEGALITY AND EFFECT SINCE PASSAGE OF ACT. §2. In general 772 IIL LIABILITY. §3. Criminal liability 779 §4. Damages for breach 780 (1) Jurisdiction of Commission 780 §5. Discrimination through contract 781 IV. ACTIONS TO ENFORCE. §6. Defenses 782 V. AS EVIDENCE OF REASONABLE RATES. §7. In general 782 SPECIAL 783 DAMAGES 783 SERVICES 783 Cross-references. SPOTTING CARS 783 Cross-references. STATE RATES 783 Cross-references. STATE REGULATION 783 Cross-references. STOCK YARDS COMPANIES 783 L STATUS 783 STORAGE 783 xxxiv TABLE OF CONTENTS Page SUBSTITUTION OF TONNAGE 784 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 784 IL LEGALITY OF SUBSTITUTING. §2. In general 784 III. POLICING BY CARRIERS. §a. In general 786 SUSPENSION OF RATES 787 Cross-references. SWITCH TRACKS AND SWITCHING 787 L CONTROL AND REGULATION. §1. In general 787 §2. Jurisdiction of Commission 787 IL ABSORPTION OF SWITCHING. §3. In general 788 IIL DISCRIMINATION AND REASONABLENESS OF CHARGES. §4. In general 788 §5. Incidental services 791 §6. Reciprocal switching 793 §7. Right to connection 793 §8. Validity of regulations 795 §9. Reparation 796 §10, Tariffs and publication 796 TANK CARS 796 Cross-references. TAP LINES 796 L CONTROL AND REGULATION. §1. Definition of tap line 796 §2. Jurisdiction of Commission 796 §3. Test of status 796 (1) In general 796 (2) Effect of Incorporation 797 §4. When plant facility 797 §5. Scope of tap-line investigation 799 II. POWERS AND DUTIES. §6. As common carriers 799 §7. Legality of divisions or practices 799 §8. Passes to officers 800 §9. Right to allowances 800 TARIFFS 802 L CONTROL AND REGULATION. §1. Jurisdiction of Commission 802 §2. Power of Congress 803 II. PUBLICATION. §3. Effect in general 803 (1) Adherence to published rate 806 (2) Erroneous quotation by carrier 808 (3) Notice to shipper 810 §4. Necessity of publication 811 §5. Purpose of publication 812 ni. POSTING. §6. In general 813 TABLE OF CONTENTS XXXV IV. CONSTRUCTION. Page §7. In general 814 §8. Ambiguity 827 §9. Cancellation ; 829 §10. Concurrences 829 §11. Conflict 830 §12. Cross-references 831 §13. Index 831 §14. Legality 831 §15. Reasonableness 832 TELEGRAPH COMPANY 832 Cross-references. TELEPHONE COMPANIES 832 I. DISCRIMINATION IN SERVICE. §1. In general 832 TERMINAL FACILITIES 833 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 833 §l%.Juri8diction of courts 835 II. DUTY TO PERFORM TERMINAL SERVICE. §2. In general 836 §3. Duty to allow use 835 §4. Publication of terminal charges 837 §5. Reasonableness of charges 838 §6. What are public terminals 838 III. STATUS OF TERMINAL ROADS. §7. In general 838 I §8. Definition of "terminal charges" 839 THROUGH ROUTES AND JOINT RATES 840 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 840 §2. What Is through route or "common arrangement" 842 §3. What Is joint rate 844 §3J^.Participatlon In through trafBc 844 II. ESTABLISHMENT BY CARRIER. §4. In general 844 §5. Dispute over divisions 845 §6. Circuitous routes 846 §7. Obligation to carry 846 §8. Relation of similar points 846 §9. Right to favor own line 847 §10. Status of Intermediate carrier 848 §11. What Is satisfactory through route 848 (1) In general 848 (2) When through route ordered or denied 850 in. BILLS OF LADING. §12. Issuance In general 859 IV. REASONABLENESS OF THROUGH RATES. §13. In general 859 §14. Divisions 863 §15. Exceeding combinations of Intermediates 864 §16. Reparation 878 V. TARIFFS AND CONSTRUCTION. §17. In general 880 §18. Application of proportional rate 880 xxxvi TABLE OP CONTENTS V. TARIFFS AND CONSTRUCTION— Cont'd Page §19. Breaking transit 881 §20. Change in rate while shipment at transit point 882 §21. Intermediate clause 882 §22, What is legal rate 882 §23. Procedure 884 TICKETS 884 Cross-references. TRACING SHIPMENTS 884 Cross-references. TRACK STORAGE 884 I. CONTROL AND REGULATION 884 II. REASONABLENESS AND LEGALITY 885 TRAIN MILE REVENUE 887 Cross-references. TRANSIT 887 Cross-references. TRANSPORTATION 887 L WHAT IS TRANSPORTATION SERVICE. §1. In general 887 II. DUTY OF CARRIER TO TRANSPORT. §2. In general 888 §3. Company material 890 §4. Collection of charges 890 §5. Delivery 890 §6. Notifying consignor of rejection 891 §7. Prompt and safe carriage 891 §8. Special service 891 §9. State interference 891 §10. Unloading at terminal 891 §11. When transit ends 891 III. OPERATION OF RAILROAD. §12. Right of carrier to make regulations 892 §13, Economy of management 893 §14. What are operating expenses 893 TRANSHIPMENT 893 Cross-references. TRIMMING 893 Cross-references. TRUCKMEN 893 Cross-references. UNEARNED INCREMENT 893 Cross-references. UNDERCHARGES 893 I. CONTROL AND REGULATION. §1. Jurisdiction of Commission 893 §11^ .Jurisdiction of courts. 894 TABLE OF CONTENTS xxxvii II. DUTY OF CARRIER TO COLLECT. Page §2. In general 894 §3. Defences 894 III. EVIDENCE. §4. Admissibility of tariff copies 895 §5. Burden of proof 895 §6. Testimony as to rate 895 UNITED STATES COURTS 895 Cross-references. UNPUBLISHED RATES 895 Cross-references. VALIDATION 895 Cross-references. VENUE , 895 Cross-references. VERDICT 895 Cross-references. VOLUNTARY RATES 895 Cross-references. WAGES 895 Cross-references. WAREHOUSEMAN '. 895 Cross-references. WATER CARRIERS 895 I. CONTROL AND REGULATION. §1. In general 895 §2. Jurisdiction of Commission 896 IL DISCRIMINATION AND REBATES. §3. In general 899 III. TARIFFS AND PUBLICATION. §4. In general 900 §5, Reparation 900 WATER COMPETITION 900 Cross-references. WEIGHTS AND WEIGHING 900 I. CONTROL AND REGULATION. §1. In general 900 §2. Jurisdiction of Commission 900 II. METHODS OF COMPUTING CHARGES. §3. Actual weight 900 §4. Capacity weight 901 §5. Estimated weight 902 §6. Reweighing 903 §7, Scaleage and shrinkage 904 III. DISCRI-MINATION. §8. In general 904 xxxviii TABLE OF CONTENTS IV. EVIDENCE AND BURDEN OF PROOF. Page §9. In general 905 V. REPARATION. §10. In general 906 VI. TARIFFS AND PUBLICATION. §11. In general 906 WHARFAGE 906 Cross-references. WITNESSES 906 Cross-references. ZONE RATES 906 Cross-references. INDEX TO CASES 907 INDEX TO COMMODITIES 973 INDEX TO LOCALITIES 1033 ABSORPTION OP CHARGEt^rVi^^^^ft^) ABSORPTION OF CHARGES. I. APPLICATION OP ABSORBED RATE. §1. In general. II. DISCRIMINATION. §2. Absorption subsequent to shipment. §3. Refusal to absorb. III. CONTROL AND REVIEW. §4. In general. I. APPLICATION OP ABSORBED RATE. §1. In General. (a) The application of a through rate on coal from the mine and absorption of the switching charge to the mill of an industry in effect names a through rate from the mine to the mill. Utica Traffic Bureau v. N. Y. O. & W. Ry. Co., 18 I. C. C. 168. (b) Where a carrier absorbs switching charges on carload shipments of furni- ture, and for its own convenience, fur- nishes a shipper two cars in accordance with its rules in that regard, making the same rate as though one car had been furnished, the switching charges should be absorbed on both cars. Mil- waukee Falls Chair Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 217, 218. II. DISCRIMINATION. See Common Carrier, §3 (f). §2. Absorption Subsequent to Shipment, (a) Complainant alleged that unrea- sonable and discriminatory switching charges were assessed by defendants on shipments of packing-house products which moved from Kansas City, Kan., to the train yards of the defendant, M. P. R.v. Co., at Kansas City, Mo. At time of shipment the M. P. Ry. Co. published a rule which provided for the absorption of switching charges on cars containing less-than-carload freight, in lots of 6,000 lbs. or over, received from connecting carriers within the switching limits of Kansas City, when such cars were des- tined to' its freight houses or warehouses In that city, and forwarded over Its lines. A few months later this provi- sion was amended to cover movements to the train yards, as well as to freight stations and warehouses. The haul to the train yards was slightly shorter. Apparently the cars were handled through the train yards for convenience of the carrier. HELD, that the non- absorption of the switching charges con- stituted an unjust discrimination. Swift & Co. V. M. P. Ry. Co., 22 I. C. C. 385. (b) Complainants shipped lumber, in carloads, from Beaudette, Minn., to Chi- cago, 111., reconsigned in transit to Elsdon, 111. The Grand Trunk R. R. as- sessed a switching charge of $5 for switching the car from Chicago proper to Elsdon, which is within the Chicago Switching District. Nine months later the C. & N. W. R. R., the delivering carrier at Chicago, published a tariff absorbing the switching charges at Chi- cago. Complainant did not appear at the hearing. HELD, the fact that over Dine months after the shipment moved defendant provided for the absorption of such switching is not of itself sufficient reason for a finding that the charges collected were either unreasonable or excessive. Deeves Lumber Co. v. C. & N. W. Ry. Co., 19 I. C. C. 482, 483. (c) Where there is no through rate In effect, and the local rates of the Initial and delivering carrier, and the switching charge of the intermediate carrier are published separately, the Commission will not authorize thg initial carrier to refund the switching charge exacted by the intermediate carrier, by reason of the fact that the initial carrier subse- quent to the shipment provides by tariff for the absorption of such switching charges, no evidence being offered to show that the switching charges were unreasonable or that the Initial carrier owed a duty to perform the switching service, or to make compensation there- for to the intermediate carrier. Acme Cement Plaster Co. v. St. L. & S. P. R. R. Co., 18 L C. C. 376, 377. (d) On wood and coal from Gerster, Collins, Vista and Chester, Mo., to Kansas City, complainants are entitled to reparation for switching charges ex- acted after Dec. 24, 1906, the date at which defendant issued a tariff clearly providing for the absorption by itself of such charges. Wellington v. St. L. & S. P. R. R. Co., 13 I. C. C. 534, 535. (e) In order to compete with the rail lines it was the custom of the steamship lines to absorb the local rates from Atlantic seaboard territory to New York, Philadelphia and Baltimore on shipments destined to points in south- ern states. Port Smith Wholesale Gro- cery Co.. V. Pt. S. & W. R. R. Co., Uurep. Op. 509. ^-^ v>_ 6PO 2 : S5e§S€MRrif)iij|]^^%H,^iiGES, §2 (f)— accounting, i (def) (f) It is not incumbent upon a car- rier to equalize the disadvantage of location and a two-line haul by tht absorption of the foreign line's entir< rate to the junction. Great Westeri Portland Cement Co. v. A. T. & S. F Ry. Co., Unrep. Op. 454. §3. Refusal to Absorb. (a) Complainant operating a factor: for the manufacture of sash, doors an( blinds near Sisson, Cal., is connectet with the S. P. Co. by a spur track owne by the McCloud River Railroad Co. Fo several years prior to Oct. 5, 1910, the S. P. Co., which receives the line hau on traffic to and from complainants plant, performed free of charge th' switching service involved in handlin; cars over the spur track. On the dat( mentioned this privilege was withdraw! and the McCloud company established i charge of $3 p^r car for the switching service and entered upon the perform ance thereof. The S. P. Co. only ab sorbs switching' charges on competitive traffic. HELD, the complainant is not subjected to discrimination as compared with other shippers similarly situated. Curtis Bros. & Co. v. S. P. Co. 23 I. C. C. 372, (b) Carriers generally absorb switch- ing charges only upon competitive traf- fic. Curtis Bros. & Co. v. S. P Co., 23 I. C. C. 372 (373). III. CONTROL. AND REVIEW. §4. In General. See Courts, §11 (cc) ; Discrimination, §1 (q). (a) In determining the reasonable ness of a switching charge at point of destination which is absorbed in part b} the originating carrier, the Commission will consider only that portion of the charge which is not absorbed. Uticn Traffic Bureau v. N. Y. O. & W. Ry. Co., 18 I. C. C. 1G8. 170. ACCOUNTING. I. POWER TO REGULATE. (a) In passing Section 20 of the Act giving the Commission authority to pre scribe an accounting system and to re- quire reports of carriers covering both interstate and intrastate business, Con- gress did not exceed its power under the Commerce Clause of the Constitution. I. C. C. V. Goodrich Co., 224 U. S., 194, 214; 32 Sup. Ct. 436, 56 L. ed. 729. (b) Defendant water carriers on the Great Lakes were engaged in carrying goods from one port to another in the same state, from a port in one state to ports in another state, and also from ports in one state to destinations in an- other state in connection with rail car- riers. They were also interested in operating amusement parks. HELD, the Interstate Commerce Commission had power under section 20 of the Act as amended to order a universal system of bookkeeping and accounting and to require reports on all the business of defendants, whether interstate or intra- state, since the intrastate business was so inextricably bound up with the inter- state business that to limit the provi- sions of the Act to interstate business would defeat the purpose sought to be accomplished by reports and accounting systems. I. C. C. v. Goodrich Co., 224 U. S., 194, 213; 32 Sup. Ct. 436, 56 L. ed. 729. (c) The granting by Congress in sec- tion 20 of the Act to the Commission of power to prescribe for carriers a system of accounting and reports covering their interstate and intrastate business is not an unlawful delegation of legislative power, since having laid down the gen- eral rules under which the Commission should proceed, it may require of the Commission the application of such rules to particular situations and the investi- gation of facts, with a view to making orders in a particular matter within the rules laid down by Congress. I. C. C. v. Goodrich Co., 224 U. S., 194, 214; 32 Sup. Ct. 436, 56 L. ed. 729. (def) An order of the Interstate Com- merce Commission required statistical information of defendant water carriers covering the routes of the carriers and their mileage; the description of the equipment owned, leased, or chartered by the carrier; the amount of traffic, both passenger and freight, and mileage and revenue statistics, together with a sepa- ration of freight into the quantity of the various products transported, showing Whether originating on the carrier's line, or received from a connecting line; and a general description of any separate business carried on by the carrier. HELD, the Commission did not exceed its authority as to the form of the re- ports and the system of accounting pre- ACCOUNTING, I (g)— ACT TO REGULATE COMMERCE. II (a) scribed. I. C. C. v. Goodrich Co., 224 U. S., 194, 211; 32 Sup. Ct. 436, 56 L. ed. 729. (g) Under section 20 of the Inter state Commerce Act as amended Junr 29, 1906, Feb. 25, 1909, and June 18, 1910, the Commission is authorized to require reports from and to prescribe systems of bookkeeping and accounting for steamship companies operating oi the Great Lakes only with respect to in- terstate business carried on under a common arrangement with rail carrier? and cannot so do with respect to port to-port interstate or port-to-port intra state business of such carriers. Good- rich Transit Co. v. Interstate Commerce Commission, 190 Fed. 943, 958, 966. (h) The clause in the United States statute (Act Feb. 25, 1909, C. 193), de- claring it unlawful for carriers engaged in interstate commerce to keep any other accounts, records or memoranda than those prescribed by the Interstate Commerce Commission, refers to inter- state commerce and does not prevent the states from prescribing additions to the system of bookkeeping fixed by the Interstate Commerce Commission so as to complete the information neces- sary for the regulating of intrastate rates. Railroad Commission of Tex. v. T. & P. Ry. Co. (Tex. 1911), 140 S. W. 829, 835. (i) Congress, or the Interstate Com- merce Commission, cannot prevent a sovereign state from adopting and en- forcing against interstate carriers any just and reasonable system of bookkeep ing that it may see fit and which does not interfere with interstate commerce. Railroad Commission of Tex. v. T. & P. Ry. Co. (Tex. 1911), 140 S. W. 829, 835. (j) Where a conflict with the system of bookkeeping prescribed by the Inter- state Commerce Commission is found as to any particular item in a system of bookkeeping prescribed by a state com- mission against interstate carriers, such fact, if it be good cause for setting aside an order of the state commission pro tanto, does not justify setting aside the entire system. Railroad Commission of Tex. v. T. & P. Ry. Co. (Tex. 1911), 140 S. W. 829, 834. (k) The only material difference be tween the system of bookkeeping pre- scribed by a state commission and that prescribed by the Interstate Commerce Commission was that the former re- quired an apportionment of expenses between freight and passenger and be- tween state and interstate commerce, while the latter did not. HELD, the system of the state commission was not invalid as conflicting with that pre- scril>ed by the Interstate Commerce Commission, or as imposing too great a burden on interstate traffic. Rail- road Commission of Tex. v. T. & P. Ry. Co. (Tex. 1911), 140 S. W. 829, 833. ACT TO REGULATE COM- MERCE. I. CONSTITUTIONALITY II. INTERPRETATION IN GENERAL. III. TIME OP TAKING EFFECT. IV. ENFORCEMENT. V. AMENDMENTS. I. CONSTITUTIONALITY. See Constitutional Law. (a) The Act is not unconstitutional as Infringing the right of contract, or as taking property for public use with- out just compensation, or due process of law, by reason of the fact that it invalidates a contract entered into prior to its passage, between a person an^ a railroad, by which the latter, in consid- eration of the release of a cause of ac- tion for personal injuries, granted to such person and his family free trans- portation for life. L. & N. R. R. v. Mottley, 219 U. S. 467, 482, 484, 31 Sup. Ct. 265, 55 L. ed. 297. (b) The provision in the Interstate Commerce Act giving the Interstate Commerce Commission jurisdiction over commerce between a state and a terri- tory of the United States is constitu- tional. Galveston, H. & S. A. Ry. Co. v. Wood (Tex. 1912), 146 S. W. 538, 541. II. INTERPRETATION IN GENERAL. (a) The Interstate Commerce Act as amended does not attempt to equalize for- tune, opportunities or abilities. On the contrary it in turn contemplates that if a carrier receives services from an owner of property transported, or uses instru- mentalities furnished by the latter, he shall pay for them, the only restriction being that he shall pay no more than is reasonable, and the only permissive element being that the Commission de- ACT TO REGULATE COMMERCE, II (b) — (n) termine the maximum in case there is complaint or upon its own motion. I. C. C. V. Difeenbaugh, 222 U. S. 42, 46, 32 Sup. Ct. 22, 56 L. ed. 83. (b) The intention of Congress in passing the Act is to be gathered from the words of the Act, interpreted accord- ing to their ordinary acceptation, and, when it becomes necessary to do so, in the light of the circumstances as they existed when the statute was passed. L. & N. R. R. Co. V. Mottley, 219 U. S. 467, 474, 31 Sup. Ct. 265, 55 L. ed. 297. (c) The Act to Regulate Commerce was intended to be an effective means for redressing wrongs resulting from unjust discrimination and undue preference, and this must be so, whether persons or places suffer. I. C. C. v. C. R. I. & P. .Ry. Co., 218 U. S. 88, 110, 30 Sup. Ct. 651, 54 L. ed. 946. (d) A carrier under section 15 of the Act as amended June 29, 1906, is entitled to have a finding by the Commission that any particular charge is unreasonable and unjust before it is required to change such charge. I. C. C. v. Stickney, 215 U. S. 98, 105, 30 Sup. Ct. 66, 54 L. ed. 112. (e) The objects of the Act are to prevent favoritism and to secure equal rights to all in interstate transportation and one legal rate, to be published and posted and accessible to all alike. N. Y. Central v. U. S., 212 U. S. 481, 495, 29 Sup. Ct. 304, 53 L. ed. 613. (f) Under the proviso of section 1 cf the Act to the effect that its provisions shall not apply to the transportation of passengers or property, or to the receiv- ing, delivering, storage, or handling of property wholly within one state and not shipped to or from a foreign country from or to any state or territory, a car- rier participating in the movement of interstate commerce is not exempted from the Act by the fact that in handling its portion of the haul it operated wholly within one state. Denver & R. G. R. R. Co. V. I. C. C, 195 Fed. 968, 971. (g) While the Act in terms provides that the Commission may order the car- rier to pay damages, the word "pay" is not to be interpreted in the narrow sense of a money transaction. It is equally a payment, within the contempla- tion of the provision, to be relieved from an obligation which the law imposes; and an order to remit the excess above a reasonable charge which the Commission has fixed is in substance and effect an order for the "recovery of damages" within the meaning of the Act. Arkansas Fertilizer Co. v. U. S., 193 Fed. 667, 673. (h) A statute of the scope of the Interstate Commerce Act, designed to regulate the vast interstate transporta- tion business of the country, is not to be narrowly interpreted in accordance with the economic or physical conditions prevailing at the time of the adoption. Omaha & C. B. St. Ry. Co. v. I. C. C. 191 Fed. 40, 47. (i) The provisions and requirements of the Act are not all applicable to every kind of carrier coming within the juris- diction of the Act, but only such of them are applicable to a particular carrier as are capable of practical accomplishment with respect to said carrier, Omaha & C. B. St. Ry. Co. V. I. C. C, 191 Fed. 40, 48. (j) The fundamental principle of the Act is one of fair play. A railroad may not control the character of the indus- tries along its line by giving preferential rates as between commodities, nor dis- criminate as between one shipper and another, even though by following such procedure it can develop the greatest amount of traffic for itself. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 426. (k) Equality of opportunity in the use of transportation facilities is one of the purposes of the Act. In Re Wharfage Charges at Galveston, 23 I. C. C. 535 (544). (1) The Commission is not inclined to adopt any construction which renders the Act unconstitutional or absurd. Railroad Commission of Nevada v. S. P. Co., 21 I. C. C. 329, 334. (ra) A construction abhorrent to the theory of our institutions is not to be presumed as the one which Congress intended. Railroad Commission of Ne- vada V. S. P. Co., 21 I. C. C. 329. 335. (n) Because the words "undue" and "unreasonable" are used in the statute, it does not follow that Congress attempt- ed to lodge arbitrary power in the hands of the Commission. Railroad Commis- sion of Nevada v. S. P. Co., 21 I. C. C. 329, 336. ACT TO REGULATE COMMERCE II (o) — (dd) (o) The law itself practically forbids competition in rates. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 264. (p) The provisions of the Act were enacted with respect to the American method of stating rates. Associated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 315. (q) To and from terminals within the lighterage limits of New York Har- bor carriers are common carriers "whol- ly by railroad" within the meaning of section 1. Federal Sugar Refining Co. V. B. & O. R. R. Co., 17 I. C. C. 40. 46. (r) The Act deals only with the ob- ligations of carriers as carriers, and in no way attempts to regulate or inter- fere with matters not involving their duties to shippers or passengers or such. Merchants' Cotton Press & Storage Co. V. I. C. R. R. Co., 17 I. C. C. 98. (s) No matter how long a practice has been in effect, it may be challenged. Remedial statutes, such as the inter- state commerce law, are generally en- acted because of abuses of long stand- ing. Boise Commercial Club v. Adams Express Co., 17 I. C. C. 115, 119. (t) The words "railway" and "rail- road" are completely synonymous and no significance can be attached to the choice of either the name or the use of either word in a statute, decision, or discussion, and this rule is applicable in the interpretation of the Act to Regulate Commerce. West End Im- provement Clu'i v. O. & C. B. Ry. & B. Co., 17 I. C. C. 239, 244. (u) With general uniformity through- out the Act the use of the words "pas- sengers or property" clearly denotes that carriers of either the one or the other or both are subject to its pro- visions.. West End Improvement Club V. O. '/c C. B. R. & B. Co., 17 I. C. C. 239, 244. (v) The Commission must determine from the context, scope and intent of the Act whether or not its provisions are properly applicable to defendants' railways. West End Improvement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 244. (w) In every broad and general law there are provisions which necessarily and reasonably are not applicable to particular instances. Whether or not a particular provision of the law ap- plies to a particular common carrier subject to the law must be determined from the facts. West End Improvement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 245. (x) If the contention is correct that defendants are not subject to the Act to Regulate Commerce, the reasonable- ness of their fares could be determined only by the common law or by Con- gress. West End Improvement Club v. O. & C. B. R. & B. Co., 17 I. C. C. 239, 246. (y) The law does not favor a re- peal by implication. It is only where there is irreconcilable conflict or repug- nancy that the special or particular statute falls under the repealing clause of the general statute. West End Im- provement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 246. (z) The Act was clearly intended to prescribe the only rule as to the regu- lation of interstate rates and it should and does supersede different rules in prior statutes. West End Improvement Club V. O. ft C. B. R. & B. Co., 17 I. C. C. 239, 247. (aa) Where regulation of commerce requires a uniform rule the power of, Congress is exclusive, but where it re- quires different rules for different lo- calities the states may legislate, but only in the absence of congressional action. West End Improvement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 247. (bb) Section 15 is the dominating and controlling expression of the real object and meaning of the Act. It makes of the Commission a special ex- pert body to deal with rates, and not to supplant the courts. Joynes v. P. R. R. Co., 17 L C. C. 361, 369. (cc) The language of the Act being of doubtful interpretation, the Commis- sion ought not to take jurisdiction, but should resolve the doubt in favor of the courts where claims of this nature (loss and damage resulting from discrim- ination in use of facilities) ordinarily belong. Joynes v. P. R. R- Co., 17 I. C. C. 361, 369. (dd) The Commission must give to the law such interpretation as it thinks ACT TO REGULATE COMMERCE, IT (ee) — (rr) Congress would apply in each individ- ual case, taking its mind from the lan- guage it has used. Enterprise Fuel Co. V. Penn. R. R. Co., 16 I. C. C. 219, 223, (ee) The law does not deal with car- riers collectively as a single unit or system, but its demands are directed to each with respect of the service which it is required to perform. Chicago Lumber & Coal Co, v. Tioga Southeast- ern Ry. Co., 16 L C. C. 323, 332. (ff) The Act confers upon the Com- mission authority to investigate and condemn such charges as are found to have been unreasonable and to pre- scribe a reasonable charge for the fu- ture. Swift & Co. V. C. & A. R. R. Co., 16 L C. C. 426, 428. (gg) Unquestionably the affirmative and mandatory obligations of the law impose upon a carrier subject to its provisions the utmost diligence to ap- prise itself that the rates are lawfully applied. It must safeguard against so carelessly shutting its eyes to what it was put upon inquiry as to consti- tute criminal disregard of the law's requirement anent observance of the tariff rates and rules. California Com- mercial Ass'n V. Wells-Fargo & Co., 16 I. C. C. 458, 461. (hh) Prohibitions of law are not in- variably directed against illegal acts because they might be numerous; a statute may be considered equally nec- essary to prevent sporadic or isolated acts in contravention of public policy; and a practice or privilege which i>er- mits the movement of a single ship- ment at less than the rate lawfully applicable to such movement is one which the Commission has, under the law, no alternative but to condemn. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 599. (ii) The Act applies to common car- riers and provides no distinction be- tween those that are operated as indi- vidual properties, partnenships or cor- porations. American Bankers' Ass'n v. American Express Co., 15 I. C. C, 15, 21. (ji) The main purpose of the Act was to regulate transportation by rail- road; the regulation of water lines was merely incidental and collateral. In Re Jurisdiction Over Water Carriers, 15 I. C. C. 205, 207. (kk) In the case of doubtful or ambig- uous provisions, reference may be had to the history of the legislation, the evils sought to be corrected, and the remedy intended to be provided. In Re Jurisdiction Over Water Carriers, 15 T. C. C. 205, 206. (II) The underlying purpose of the interstate commerce legislation was to put shippers on a basis of absolute equality; to assure to them not only equal rates, but an impartial enjoyment of the facilities and services of inter- tate commerce. Rail ' and River Coal Co. V, B. & O, R. R. Co., 14 I. C, C. S6, 88. (mm) In administering the Act it is manifestly unwise to interfere with estab- lished usages unless they plainly offend its provisions and in a substantial manner abridge rights it was designed to pro- tect. National Wholesale Lumber Deal- ers' Ass'n V. A. C. L. R, R. Co., 14 I. a. C. 154, 163. (nn) The Act requires that the rates and regulations under which traffic is handled shall be just and reasonable, and it is the duty of the Commission upon a showing that such rates and regulations are not lawful to correct them, even though the complainant does not have a direct pecuniary interest in such an order. Glenn W. Traer v. C. B. & Q, R. R. Co., 14 I. C. C. 165, 168. (oo) The Act leaves carriers free to initiate their own rates, rules and regu- lations. Traer v. C. B. & Q. R. R. Co., 14 L C. C. 165, 169. (pp) The Act is to be read as a whole. California Commercial Ass'n v. Wells- Fargo & Co., 14 I. C. C. 422, 428. (qq) The provisions of "the Hepburn Act and the Elkins Act forbidding car- riers to evade the collection or payment of its fixed tariff rates are not intended to extend the jurisdiction of the carrier over matters outside of its province 5s a common carrier, nor are they in- tended to limit and prescribe the use which shall be made of the rates which the carrier puts into effect. California Commercial Ass'n v. Wells-Fargo & Co., 14 I. C. C. 422, 428. (rr) Section 3 of the Interstate Commerce Act requires common carriers by rail to offer all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, ACT TO REGULATE COMMERCE, II (ss)— IV (d) and for the receiving, forwarding and delivering of passengers and property to and from their several lines thus connected therewith, and provides: "But this shall not be construed as re- quiring any such common carrier to give the use of its track or terminal facilities to another carrier engaged in like business." HELD, this lan- guage could not be said to amount to a substantive enactment. It is a mere interpretation clause, which is designed to restrain, if necessary, the generality of the language which precedes it. Pittsburg, etc., R. Co. v. R. R. Comm., 171 Ind. 189, 210, 86 N. E. 328. (ss) The construction of the Hepburn Act, as amended by the Carmack amendment, and the scope of its oper- ation raise a Federal question, and as to such question the state courts will follow and are bound by the deci- sions of the United States courts. But contracts for reduced rates not being affected by such law, no Federal ques- tion arises and no Federal right is in- volved, and hence the state courts are free to apply their own rules to their construction. McElvain v. Railroad, 151 Mo. App 126, 146, 131 S. W. 736. (tt) An interstate common carrier is free to exercise all its rights under the common law to the full extent, unless such exercise has been made unlawful by the Interstate Commerce Act. McElvain v. Railroad, 151 Mo. App. 126, 151, 131 S. W. 736. (uu) Under the Interstate Commerce Act as amended June 29, 1906, it ap- pears that it was the purpose of Con- gress to assume jurisdiction over the entire subject-matter relative to inter- state shipments from the time of the origin of such shipment down to the point where the shipment is entirely at an end and its character as a trans- action of interstate commerce ceases. St. L. & S. F. R. R. Co. V. State, 26 Okla. 62, 72, 107 P. 929. (vv) Where the facts are such that it is not clear that the conditions are BO similar as to render the Act to Regu- late Commerce or the rate published thereunder inapplicable, such rate will be held, in a civil proceeding, to con- trol. Coeur d'Alene & S. Ry. Co. v. U. P. R. R. Co. (Wash., 1908), 95 P. 71. 77. IN. TIME OF TAKING EFFECT. (a) The law stands for what it means from the date when it takes effect and not from the date when it :s construed by the Commission. Ordi- narily the date of the announcement by the Commission of its interpretation of a l^articular provision is therefore of little real importance. Liberty Mills v. L. & N. R. R. Co., 23 I. C. C. 182, 185. (b) A statute passed to take effect at a future date must be understood as speaking from the time it goes into operation, and not from the time of its passage, and before the time of going into effect no rights may be acquired under it and no one is bound to regulate Ms conduct according to its terms. Nic- ola, .Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 206. (c) The legislative intent was to make August 28, 1906, the effective date of the Hepburn Act, which was approved June 29, 1906. Nicola, Stone & Myers Co. V. L. & N. R. R. Co., 14 I. C. C. 199, 206. !V. ENFORCEMENT. (a) A suit to enforce an order of eparation entered by the Interstate !!ommerce Commission brought under the Interstate Commerce Act as amend- ed June 29, 1906, is an action sounding in tort for damages. Nay lor & Co. v. Lehigh Valley R. Co., 188 Fed. 860, 861. (b) Section 8 of the Act does not have any relation to the jurisdiction of the Commission. It creates a substan- tive right of action to recover damages for the violation by a carrier of some provision of the Act, but leaves ihe right enforceable only in the courts. Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 369. (c) The decisions of the United States courts and the opinions of the Interstate Commerce Commission con- struing the Act to Regulate Commerce have no application to intrastate ship- ments. A. G. S. Ry. Co. v. McCleskey, 160 Ala. 630, 634, 49 So. 433. (d) The Interstate Commerce Act is \ part of the law of the state of Mis- rouri, and enforceable in its courts, when rights under it or given by it arise as incidents of a trial. McElvain v. ACT TO REGULATE COMMENCE, V (a)— ADVANCED RATES Railroad, 151 Mo. App. 126, 151, 131 S. W. 736. V. AMENDMENTS. (a) The general rule of construction is that a general statute will not re- peal the provisions of a former one which is special or particular unless there is something in the law, or in the course of legislation upon its sub- ject-matter, that makes it manifest that the legislature contemplated and in- tended a repeal. The law does not favor a repeal by implication, and where it is possible to so construe the statute as to maintain the integrity of both it must be done. West End Improve- ment Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 246. (b) The law does not favor a repeal by implication. It is only where there is irreconcilable conflict or repugnancy that the special or particular statute falls under the repealing clause of the general statute. West End Improvement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 246. (c) That Congress did not see fit to alter the third and fourth sections is highly persuasive that it was the intention of that body to leave the law and its practical working exactly as it has been. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 388. (d) The amendments to the Inter- state Commerce Act are to be treated, as to matters occurring after the enact- ment of the statute, as if they had been in the original Act. State v. Adams Ex- press Co., 171 Ind. 138, 141, 85 N. E. 337 and 966. ACTIONS AT LAW. See Cars and Car Supply, §33; Dis- crimination, §16; Courts, I; Special Contract, IV. ADDITIONAL CHARGES. See Allowances, §2 (e); Assorting Packages; Bridge Tolls, I (a); Cartage; Concentrating Rates and Privileges (aa). Facilities and Privileges, §10 (m); §21 (e); Im- port Traffic, M (b): Precooling, li (f); Refrigeration, §3 (f). (a) An additior.al charge may be made by a carrier when an additional service is given. After the shipper pays for team track delivery and does not re- ceive it, but asks instead and is given side track deliery which costs the car- rier no more, he may not be compelled to pay an additional charge upon the as- sumption that he has received a terminal team track service which has not been given. A carrier may not so construct its rates as to compel an extra charge for like service. Associated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 318. ADJACENT FOREIGN COUN- TRY. See Through Routes and Joint Rates, §1 (n). (a) Although mandamus will not lie so as to interfere with the exercise of its discretion by the Commission, it will lie to compel the Commission to take jurisdiction over carriers operating between Alaska and the United St.ites and between Alaska and adjacem: for- eign countries, where the Commission has refused to do so pursuant to its belief that the Interstate Commerce Act has conveyed upon it no authority over such carriers. I. C. C. v. H. S. Co., 224 U. S. 474, 484, 32 Sup. Ct. 556, 56 L. ed. 849. (b) Cuba is not an "adjacent foreign country." within the meaning of the Act. The word "adjacent," as ueed in the Act to modify the words "foreign country," would seem to mean adjacent in the sense of the possibility of substantial continuity of rails. Lykes Steamship Line Y- Commercial Union, 13 I. C. C 310, 315. ADVANCED RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. (1) Inquiry into reason- ableness. (2) Power to require ad- vance. (3) Prescribing minimum rate. (4) To suspend advance. (5) To suspend reduc- tion. §2. Limitation on power. II. JUSTIFICATION OF INCREASE. §3. Burden of proof. §4. Effect. ADVANCED RATES, §1 (1) (a) — (b) §5. Right to advance. (1) To avoid reducing other rates. (2) To equalize rates. (3) To preserve com- modity relation- ship. (4) Unreasonably low prior rate. §6. Right to earn. (1) On bona fide invest- ment. (2) On unearned incre- ment. (3) On reproduction value. (4) On surplus. (5) For permanent im- provements. (6) All traffic will bear. (7) Cost of insurance. III. EVIDENCE. §7. §8. §9. §10. §11. §12. §13. §14. §15. §16. Change in conditions. (1) In general. (2) Increased operating expenses. (3) Impairment of credit. (4) Cessation of compe- tition. Presumptions. (1) Continuance of prior rate, (2) Temporary reduction. Concerted action. Economy of management. Scientific management. Branch lines. (1) Operation. (2) Purchase. Detriment to shipper. Benefit to industry. Standard for judging ad- vance. Uniformity of advance. IV. REASONABLENESS OP AD- VANCED RATES. §17. In general. §18. Circumstances and condi- tions. (1) Low receipts per ton mile. (2) Water competition. (3) Heavy and uniform tonnage. (4) Low-grade commod- ity. (5) Ratio of rate to value. (6) To gain import duty. (7) VI, VII. Rates in like terri- tory. (8) Circuitous route. (9) Use of commodity. (10) Increased divisions. DISCRIMINATION THROUGH AD- VANCE. §19. In general. REMEDIES AND PROCEDURE. §20. Injunctions. §21. Investigation. REPARATION. §22. In general. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Interstate Commerce Commis- sion, §1 (ee), §9 (w). §1. (1) Inquiry into Reasonableness. (a) The final determination of the question of the reasonableness or just- ness of a proposed increase in interstate rates is one for the Interstate Commerce Commission and not for the courts. Ar- lington Heights Fruit Co. v. S, P, Co., 175 Fed. 141, 142. (aa) The Commission is not con- cerned with the motives of the carriers which lead to an increase in rates, provided the rates which it is proposed to establish are reasonable. It does not sit as a supreme traffic manager for the railroads of the country. Con- sideration of the policy which the railroads may pursue is not a matter delegated to it so long as such policy does not infringe upon the prohibitions of the law. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 612. (b) Defendants filed tariffs increasing all the class rates and about one-half of the commodity rates in Official Classifica- tion territory. Justification presented by the carriers was -the want of additional revenue, and the question presented to the Commission was whether defendants were justified in laying the additional transportation burden upon the public for the purpose of obtaining greater net revenue. HELD, strictly speaking, the Commission has no jurisdiction to hear and determine that question; that it has no authority as such to say what amount the defendants shall earn, nor to establish a schedule of rates which will permit them to earn that amount. 10 ADVANCED RATES, §1 (1) (c)— §1 (5) (a) The authority of the Commission is lim- ited to inquiring into the reasonable- ness of a particular rate or rates and establishing that rate or practice whict is found lawful in place of the one condemned as unlawful. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243 248. (c) While the authority of the Com mission only extends to the passing up on the reasonableness of the rate pre sented for its consideration it is not con fined to single rates. Any number ol rates may be embraced in the same com plaint and the duty of the Commissior Is to consider and pass upon all thosf so presented. When there is involvec the propriety of advances which affec (he entire rate fabric within OfFicia, Classification territory embracing one half the tonnage and one-half the freight revenues of the whole country, and wher that advance is justified mainly upon the ground, not of commercial conditions, bu'i by lack of adequate revenue upon the present rate basis, the Commission must determine the fundamental question. Ii Re Advances in Rates — Eastern Case. 2( I. C. C. 243, 248. (d) The restriction of the Commis- mission's order upon flexibility in rate, established by it is inhibitive only of ai advance within the prescribed period. Ii the carriers participating in a join! through rate desire to reduce or increase the separately established local rates vij: the same route, the order of the Commis sion requiring the maintenance of a joint through route is no bar to their so do ing. Michigan Buggy Co. v. G. R. & I Ry. Co., 15 I. C. C. 297, 299. §1. (2) Power to Re -Ire Advance. (a) The Commission has no author- ity to compel the advance of a rate for the purpose of removing discrimination. In Re Advances on Fresh Meats, 23 I. C. C. 652, 655. (b) The contention that there ex- ists no power anywhere to let a shipper into a market by advancing the rate to another shipper does not appear to be sound. Boileau v. P. & L. E. R. R Co., 22 I. C. C. 640, 654. (c) The Commission has no power to require the increase of a rate. Mer- chants' Dispatch Storage Co. v. I. C. R. R. Co.. 17 I. C. C. 98, 102. Kansas City Transportation Bureau v. A. T. & S. P. Ry. Co., 15 I. C. C. 491, 497. §1. (3) Prescribing Minimum Rate. (a) The Commission has no authority to prescribe a minimum rate. Percy Kent Co. V. N. Y. C. & H. R. R. R. Co., 15 I. C. C. 439, 442. §1. (4) To Suspend Advance. (a) The Commission is not empowered to suspend the operation of a schedule after it has gone into effect. Re-hearing denied. In Re Investigation of Rates on Lumber, 21 I. C. C. 16, 17. §1. (5) To Suspend Reduction. (a) The Commission was called upon to postpone the effectiveness of certain re- ductions in rates because discriminatory against complainant. They consisted of re- duced proportional rates on packing- house products and fresh meats from Ft. Worth, Tex., to St. Louis, Mo., on fresh meats from SS^^c to o5i/^c, and on pack- ing-house products from 33c to 32 %c. As these commodities from Ft. Worth moved largely to points beyond St. Louis and these proportional rates were used in combination to make up through rates to such points beyond, the effect was to reduce the existing rates from Ft. Worth to northern and eastern points generally. The contention was made that these rates discriminated against Oklahoma City, Okla. The present differential in favor of Oklahoma City of 7c per 100 lbs. on fresh meat and 4i/4c per 100 lbs. on pack- ing-house products on shipments to points in Central Freight Ass'n terri- tory appeared to- be an offhand adjust- ment of a trade and transportation dis- pute of which the Commission had no means of determining its fairness or cor- rectness on the present hearing, and com- plainants requested the reductions to •be postponed until the general investigation now before the Commission be finished HELD, the Commission decides that it has the power to suspend reductions of rate in any case where such suspension will operate to prevent an apparent dis- crimination. However, a prima facie case clearly and affirmatively persuasive should be presented before the power to suspend is exercised. This, not having been done, the complaint is dismissed. In Re Suspension of Rates on Packing- House Products, 21 I. C. C 68, 70. ADVANCED RATES, §2 (a)— §3 (aa) 11 §2. Limitation on Power. (a) The railroad rates of this country have not been constructed, as a rule, up- on any scientific basis, and this is es pecially true of the interstate rates. The traffic officials who have established these rates have generally done so with- out any special inquiry as to the total amount of revenue which ought to be produced, or as to the part of that burden which a particular commodity ought tc bear. This Commission is called upon to deal with rates as they exist, and in so doing it ordinarily considers them not from the revenue standpoint but rather from the commercial and traffic stand- point. At the same time it is now the settled law that there is a limit below which the revenue of railroads cannot be reduced by public authority, and if there were no such constitutional limitations: it would nevertheless behoove every reg ulating body to permit the existence ol such rate when possible, as would yield just earnings to the railway. The ques tion of revenue is therefore fundamental and ever present in all considerations as to the reasonableness of railroad rates, although it may not be, and seldom is where single rates are presented, the controlling question. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243. 248. II. JUSTIFICATION OF INCREASE. §3. Burden of Proof. See Evidence, I, §1 (a), (aa), (b), (k), §29 (f): Through Routes and Joint Rates, §4 (e). (a) By withdrawing its concurrence the St. L. & Hannibal Ry. put the Clover Leaf R. R. in such a position that it was compelled to cancel the joint through rates which it had theretofore published on coal of 82c per ton, from certain points on its line in Illinois, including more particularly the mines at Panama to Hannibal and other destina tions in Missouri on the line of the St. L. & Hannibal Ry. If this rate was withdrawn there would be available to shippers only the combination of local rates un- der which it is clear the traffic could not move. HELD, as the withdrawal of the through rates leaving in operation the lowest combination of local rates would increase the charges on coal moving over that route, the defendants were un der the burden of justifying their course and in showing that the resulting charges would be just and reasonable. No effort having made to do this and no tsubstan- tial reason given for the cancellation of the joint through rates, the present through routes and joint rates are or- dered maintained. In Re Advances in Rates on Soft Coal, 23 L C. C. 518. (aa) In Hood & SonS v. Delaware & Hudson Co., 17 I. C. C. 15, the Com- mission found that for the transporta- tion of fluid milk from Poultney and West Pawlett, Vt, and Cambridge, Gran- ville, Middle Granville, Salem and Sbu- shan, N. Y., to Jagle Bridge, N. Y., destined to Boston, Mass., a rate of $16 per car of 250 cans of 40 quarts each, and 61/^c per can for any excess over 250 cans, was a reasonable carload rate. The defendant sought to advance the rate to 9c per can of 40 quarts each based on a car minimum of 250 cans, excess at the same rate per can on Boston shipments of milk from the points mentioned to Eagle Bridge. From Poultney to Boston the distance is 213 miles. The distance from Eagle Bridge to New York via Albany is 290 miles. The carload rate to New York was 28.8c per can of 40 quarts. For the haul from Eagle Bridge to Albany, a distance of about 142 miles, defend- ant got 50 per cent of the through rate to New York, or 14.4c per can of 40 quarts, which is equivalent to 3.6 mills per quart. For the 45 miles from Eagle Bridge to Poultney it is equivalent to 1.13 mills per quart, and deducting the terminal charges on New York milk of 2c per 100 lbs. would leave a net rate of about 1.07. mills per quart. Under the proposed advance the rate on cf niplainant's milk would be equivalent to 2.25 mills per quart from Poultney and intermediate points to Eagle Bridge. Between Providence, R. I., and Boston, Mass., a distance of 45 miles over the N. Y. N. H. & H. R. R., the rate was $17.24 per car, the equiva- lent of 6.9c per can, or 1.7 mills per quart. Other instances in nearby terri- tory were similar. "The advanced rate proposed was $22.50 per car, or 2.25 mills per quart. HELD, that the proposed increased rate is unreasonable and un- just, but that there is probable justifi- cation for an advance in the present rate to $17.25 per car of 250 cans of 40 quarts each, and 7c per can for any excess over 250 cans. In Re Advances in Rate for the Transportation of Fluid Milk, 23 I. C. C. 500. 12 ADVANCED RATES, §3 (b)— §5 (a) (b) After January 1, 1910, under the 15th section of the Act, the burden of proof to show an increased rate just and reasonable rests with the carriers. Citi- zens of Somerset v. Wash. Ry. & Elec. Co., 22 I. C. C. 187, 188. Davis Sewing Machine Co. v. P. C. C. & St. L. Ry. Co., 22 I. C. C. 291. In Re Advances on Iron and Steel Articles, 22 I. C. C. 486. In Re Advances on Grain, 21 I. C. C. 22, 35. In Re Advances on Locomotives, 21 I. C. C. 103, 111. In Re Advances in Rates by Carriers Operating between the Missis- sippi and Missouri Rivers, 21 I. C. C 546, 555; Ohio Allied Milk Products v. Erie R. R. Co., 21 I. C. C. 522, 528; U. S. Leather Co. v. S. Ry. Co., 21 I. C. C. 323, 325; Victor Mfg. Co. v. S. Ry. Co., 21 I. C. C. 222, 226. (c) Where the cancellation of joint through rates increases the total rate from point of origin to destination the burden is on the carrier to prove the reasonableness of the increased rates. In Re Advances on Lumber and Forest Products, 21 I. C. C. 455, 456. (d) Carriers running west of Chicago increased some 200 commodity rates. It was urged that the Interstate Commerce Act as amended should be given the same construction as the English act and that the burden only rested on the carriers to prove the reasonableness of the in- crease in the rate, and not the increased rate as a whole, and that the purpose of Congress was to regard all rates in ef- fect on Jan. 1, 1910, as the maxima which could not be increased until it was shown that there was reason and necessity for the specific increase made. HELD, it is clear from the language of the statute as well as its history that the purpose of Congress differed from the purpose of Parliament; that Congress did not intend to prescribe that any existing rates were reasonable; and that it was the duty of the Commission to deal with the in- creased rate and not the increase in the rate; that the Commission may continue in effect the present lower rates; or may reduce the existing rates. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 311, 314. (e) The English statute of 1894 pro- vides that the carrier shall justify the "increa.se of the rate." The Interstate Commerce Act provides that the burden of proof shall be upon the carrier to show that the "increased rate" is just and reasonable. The English act creates a presumption that the rates in effect on Dec. 31, 1892, were reasonable rates, and the justice of any increase must be tried by that standard. The Interstate Com- merce Act does not intend to enact that all rates in effect on Jan. 1, 1910, are just and reasonable, upon the contrary it is open to any shipper to attack such a rate as unjust and unreasonable. The only effect of the Act is to cast in cer- tain cases the burden of proof upon the carrier. In Re Advances in Rates — East- ern Case, 20 I. C. C. 243, 255. (f) A rate which has been in force for a long period of years and with re- spect to which commercial condition- have been adjusted — which rate has pre- sumably afforded a reasonable return to the carriers — may not be materially ad- vanced without imposing upon the car- riers the burden of justifying the in- crease. Pacific Coast Lumber Mfrs. Ass'n V. N. P. Ry. Co., 14 L C. C. 23, 39. (g) When certain rates have been in force for a long period of time and busi- ness conditions have become well set- tled thereon and the carrier is earning a liberal income and paying liberal divi- dends while expending large sums in im- provements and renewals, a material in- crease in those rates unaccompanied by a corresponding decrease in other rates places upon the carrier the obligation of justifying the increase. Oregon & Wash- ington Lumber Mfrs. Ass'n v. U. P. R. R. Co., 14 L C. C. 1, 13. §4. Effect. (a) A group of carriers cannot cast the responsibility of maintaining the bur- den of establishing the reasonableness of certain advances upon a single carrier and claim the benefit of whatever the case made by that carrier may establish. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 611. §5. Right to Advance Rates. (a) Within certain limits it may be the right of the Commission to consider the question of advanced rates in Official Classification territory as one of public policy and not one of strict legal right. If the true interest of the whole com- munity requires it the railroads might perhaps be allowed fair earnings with which to aid their properties in addition to the payment of return to their stock- holders even though there is not strict requirement of law which commands it. ADVANCED RATES, §5 (b) — (d) 13 In R€ Advance in Rates — Eastern Case, 20 I. C. C. 243, 266. (b) It is not probable that increased rates will be necessary in the future to carriers in Official Classification territory. In Re Advance in Rates — Eastern Case, 20 I. C. C. 243, 305. (c) The ordinary considerations of justice require that money invested in railroads by invitation of the govern- ment should be allowed a fair return. This does not mean that the Commission should permit rates which will guarantee all railroad investment, nor which will guarantee any railroad investment at all times, but it should allow rates which will yield to this capital as large a re- turn as it could have obtained from other investments of the same grade. If rates formerly in effect have become insuffi- cient then higher rates should be per- mitted. Rates should be such as to ren- der possible a high class, not an extrava- gant, transportation service. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 262. (d) Complainants attacked the advances In rates effective Aug. 1, 1908, on articles included in classes B, C, D and F, fresh meats, C. L., grain and hay, grain products and packing house products from Ohio and Mississippi River crossings to cer- tain destinations in the territories em- braced by the Southeastern Freight As- sociation and the Southeastern Missis- sippi Valley Association. The advances to Atlanta and Birmingham alone from Louisville were considered, as the rates to other destinations mentioned are de- pendent upon them. Effective Sept. 1, 1891, the rates from Louisville, Ky., to Atlanta, Ga., were reduced from what they had been for three years thereto- fore (practically from the real basis es- tablished in 1884) to class B 35c, class C 28c, class D 24c. class F 48c. These rates to Atlanta as established Sept. 1, 1891, remained practically unchanged un- til Feb. 1, 1905, with the exception of some slight temporary changes. Effec- tive Feb. 1, 1905, the rates from Louis- ville to Atlanta were reduced to class B 33c; class C, 22c; class D, 22c; class F, 44c. From April 22, 1901, to July 31, 1908, the rates from Louisville to Bir- mingham were: Class B, 31c; class C, flour in sacks, 20c; class D, 20c; class F, 40c. The advances made equaled the re- ductions given in 1905 to Atlanta and actually increased the Birmingham ra'te. It was contended that the rates as advanced were not only unreasonable and excessive but also discriminated against Birming- ham and related points. The reductions given Atlanta in 1905 were made after exhaustive conferences between the car- riers, the shipping interests of Atlanta and the railroad commission of Georgia. The reductions were the result of an ad- justment or compromise of litigation with the railroad commission and controver- sies with the citizens of Atlanta concern- ing the granting of certain privileges for the construction of the Atlanta Terminal. HEIiD, that the rates in effect prior to Feb. 1, 1905, were presumptively reason- able and just with respect to the public and compensatory to the carriers; these rates while presumptively reasonable and just in and of themselves were discrim- inatory as between the various points of destination in that they unduly preferred Birmingham and related points to the prejudice and disadvantage of Atlanta and related points. This discrimination between Alabama and Georgia destina- tions having been corrected by the rate adjustment effective Feb. 1, 1905, the same having been reached by a reduc- tion in the rates to Atlanta and the ad- justment having been continued under the rates as advanced Aug. 1, 1908, which so far as Atlanta is concerned was a mere restoration of rates, it follows that the advances which are embraced in the rates effective Aug. 1, 1908, may be ex- amined with respect to whether they are just or unjust, reasonable or unreason- able to Atlanta or to Birmingham, with the assurance that whatever may be found to be true of the rates to either destination will also be true for the rest of the territories embraced in these com- plaints. Most of the articles embraced under these classes is freight that must be moved promptly in order to serve the public as well as to avoid claims for dam- age in transit. The condition of most of the railroads in this section of the coun- trv is not yet up to the highest standard and in order that their facilities may be improved and extended to the ultimate lasting advantage of the people of the South it is necessary that the carriers be permitted to charge rates that are fully compensatory to the services they per- form, so long as such rates have not been shown to be unjust, unreasonable, or ex- cessive with respect to the public. Look- ing at the matter with respect to its bearing upon the prosperity and develop- 14 ADVANCED RATES, §5 (1) (a)— §5 (2) (c) ment of the South and testing it by the rules laid down by the United States Su preme Court, it is held that the advanced rates effective have not been shown to be unjust, unreasonable or excessive. Complaints dismissed. (Lane, Clements, Comm'rs, Diss, op.) Morgan Grain Co. V. A. C. L. R. R. Co., 19 I. C. C. 460. §5. (1) To Avoid Reducing Other Rates. (a) Upon the facts the Commission finds that it must allow an advance from Buffalo of Ic per 100 lbs. on flour and wheat products to New Eng- land points and New York, or must in substance require a reduction from all territory west of Buffalo. In view of the whole situation it seems to the Commission that the wisest course is to permit the advance from Buffalo. Banner Milling Co. v. N. Y. C. & H. R. R. Co., 19 I. C. C. 128, 131. (b) Complainant attacked the carload rate of 26i^c on lumber and other forest products from Arkansas, Louisiana, Mississippi and Texas to Omaha and South Omaha, Neb., and Council Bluffs, la. Prior to December 15, 1899, the rate to Omaha was 22c. It was then advanced to and remained at 23c until •Tune 1, 1908, when, pursuant to the decision in Lincoln Commercial Club V. C. R. I. & P. Ry. Co., 13 L C. C. 319, holding that the -rate to Lincoln, Neb., should jiot exceed that to Oma- ha, defendants advanced the Omaha rate from 23c to 25c and the Lincoln rate from 24c to 25c. On August 25, 1908, pursuant to the decision in Great- er Des Moines Committee v. C. G. W. Ry. Co., 14 I. C. C. 294, holding that the rate to Des Moines should not ex- ceed the rate to Omaha, defendants again advanced the rates to Omaha and Lincoln to the 26^c rate com- plained of and reduced the rate of Des Moines from 27i/^c to 26i^c. In order to hold up through rates resulting from this advance, defendants had to in- crease the loc^l factors in the St. Louis combination so that the combi- nation would be as high as the through rate. The rate attacked applied from all points in the territory some 450 by GOO miles in extent. By reducing the same to 25c the per ton mile revenue based on an average distance would be only slightly affected. HELD, the rate at- tacked should be reduced to 25c; the Des Moines rate should not exceed the Omaha rate; and the relation estab- lished by the Commission in the cases mentioned should not be disturbed. Defendants were obviously satisfied vith the 23c rate to Omaha and Lin- coln and only -raised these rates in irder to escape reducing the rates to Des Moines and Lincoln. Commercial Olub of Omaha v. Anderson & Saline River Ry. Co., 18 I. C. C. 532, 536, 537. §5. (2) To Equalize Rates. See Equalization of Rates, §5 (a), §3 (kk); Reasonableness of Rates, §12>/2 (c). (a) The live stock rates prescribed 'o Kansas City in the original report, 22 I. C. C. 160, were approved as a whole, and there is no warrant for the assumption that in those cases where the mileage scale prescribed by the Commission might be higher than particular rates in force, such rates might be increased to equal the mile- age scale. In Re Alleged Unreasonable Rates on Meats, 23 I. C. C. 656, 660. (b) The rate on fresh meats and packing-house products from Wichita, kan., to southeastern territory ought not to be advanced unless that from Kansas City is also increased by a corresponding amount. In Re Alleged Unreasonable Rates on Meats, 23 I. C. C. 656, 666. (bb) The fact that rates are in- creased so as to effect a differential, or so as to more equitably equalize rates between competing coal fields, and that such increase is made without regard to the reasonableness of the re- sulting rates, may not be considered as conclusive or in anywise determinative as to the justness or reasonableness of the rates in themselves. The Commis- sion is not concerned with the increase in the rates but with the increased rate. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 612. (c) In considering an advance in •rates on leather the defendants in- sisted that because the advanced com- modity rates were less than the class rates between the points in question this showed the former rates were im- iiroper and justified the increase. HELD, upon this theory the advanced rates cannot be defended, for those rates are less than the class -rates, and it it be true that there is a fixed relation between commodities which ADVANCED RATES, §5 (2) (d) — (f) 15 must he the same in all cases and that the classification determines that relation, then it would be the duty of these defendants to advance these leather rates to the level of the class rates. It may b« further noted that upon this theory no commodity rate could be justified. While it is true that commodity rates are always in the nature of a preference, not neces- sarily undue, and while it may be true that the tendency should be to elimi- nate these special rates, and work more nearly to a class basis, still the rates of this country have been built up upon a different theory, and to apply that theory would be revolu- tionary and destructive of many legiti- mate business enterprises. United States Leather Co. v. Southern Ry. Co., 21 I. C. C. 323, 325. (d) The Commission investigated certain increased rates on cement plas- ter applied by the defendants from Alva,. Bickford, Ferguson, Marlow, Okarche, Cement, Eldarado, Okeene, Southard, Chambers, Roman Nose, Wa- tonga and McAlester, Okla., to Fort Worth and Dallas and intermediate stations in Texas. Fort Worth and Dallas are the largest consuming points for cement plaster in northern Texas and tha -rates in force were made in order to place the various points of production on substantial competitive equality at Fort Worth and Dallas. Producers of cement plas- ter in Oklahoma are in competition not only with one another but with com- petitors in the vicinity of Acme, Tex. The distance from Acme to Fort Worth is 19G.5 miles and to Dallas 230.3 miles via the Fort Worth & Denver City Ry., which road has maintained rates of 10c from Acme to Fort Worth and ll^/^c to Dallas. The Oklahoma points are further distant from Fort Worth or Dallas than is Acme and take a rate substantially the same. In many Instances, also, rates from Acme and from the points of origin in Oklahoma are higher to stations between Fort Worth-Dallas and the Texas-Oklahoma state line than to Fort Worth-Dallas. The Increase in the rates suspended appeared to have been made by the carriers in order to conform to the fourth section of the Act and at the same time to augment their revenues. The revenue per ton mile under a 13- cent rate would vary from 7.3 mills to 11.6 mills from points in Oklahoma, distant from 224 to 353 miles, and a rate of 10c would yield a ton mile revenue of from 9.4 mills to 12.2 mills from the nearest situated point, dis- tant from 164 to 212 miles. HELD, regarding the rates from the Oklahoma points of origin • to Fort Worth and Dallas the points of origin and at destination should be grouped for the purpose of p-rescribing maximum rates. In making such groups the established rate-making customs in the southwestern section of the country and the par- ticular action of the carriers in this case ire as follows: Two groups of points )f origin seem to be necessary in order o do justice to the -rights of shippers xnd carriers and these are made sub- stantially upon the ground of distance; he rate from Alva, Bickford, Ferguson, Okarche, Eldorado, Okeene, Southard, loman Nose and Watonga to Fort Worth and Dallas should not exceed 13c per 100 lbs., minimum 40,000 lbs.; the -rate from Cement, Marlow, Cham- bers and McAlester, the nearest group ■o Fort Worth and Dallas, should not axceed 10c per 100 lbs., minimum 40,- 000 lbs. In Re Advances on Cement Plaster, 21 I. C. C. 591, 595. (e) Complainant, a lumber manufac- turer at Oakdale, La., attacked the ad- vanced rate on export lumber of 9c (from 7c) per 100 lbs. from Oakdale to Port \rthur, Tex. The haul from Oakdale "0 Port Arthur, a two-line haul of 155 niles, yields .0116 cents per ton per mile md per car earnings of $45. HELD, :hat bearing in mind the fact that ates on lumber west of the river lave been raised quite generally in :*ecent years to the extent of 2c per '00 lbs. the Commission would not feel justified in reducing the rate as grayed. Complaint dismissed without irejudice. Industrial Lumber Co. v. St. U W. & G. Ry. Co., 19 I. C. C. 50, 52. (f) On fir lumber shipped in April, '908, from Oregon City, Ore., to Crip- i\e Creek, Colo., a through rate of 69c vas collected, made up of 50c to Colorado Springs and a local of 19c )eyond. From April 15, 1905, to Nov. ', 1907, the rate over the route in ques- ion was 40c to both Canon City and ^Jolorado Springs. On the latter date it idvanced to 50c in connection with gen- eral advances made at the time on lum- ber from the north Pacific coast, which idvances were subsequently condemned • 16 ADVANCED RATES, §5 (2) (g)— §5 (3) (b) by the Commission. After the order of the Commissiop defendants voluntarily restored the 40c rate to Canon City, but did not apply same to Colorado Springs. For a number of years defendants applied a proportional rate of 7c from Colorado Springs to Cripple Creek on lumber orig- inating in Colorado and New Mexico, and at the time of shipment a rate of 10c was in force on this particular lumber. The lumber to which this rate applied was of an inferior quality and used largely in connection with mining «op- erations in the Cripple Creek district, the lower rate being made to encour- age the mining industry. The grades involved in the haul from Colorado Springs to Cripple Creek exceeded 4 per cent at some points and on account of other physical conditions the road was very expensive to operate. The 7c and 10c rates mentioned were out of line with local rates generally in that locality. HELD, the 50c rate charged from point of origin to Col- orado Springs was excessive to the extent that it exceeded 40c in view of the former 40c rate, the condemnation of the advance by the Commission, and the subsequent voluntary restora- tion of the 40c rate to Canon City; but that the 19c local rate charged from Colorado Springs to Cripple Creek was not shown to be unreasonable, since it is not per se unlawful to make a proportional rate lower than the local rate, and limit its application to traf- fic coming from a specified territory. Serry v. S. P. Co., 18 I. C. C. 554, 555, 556. (g) An advance in rate in order to remove discrimination is justified. Lautz Bros. & Co. v. L. V. R. R. Co., 17 I. C. C. 167. (h) Defendants increased the third and fourth class rates 2.5c and the fifth class rate 2c on soap and wash- ing powder from Buffalo, N. Y., to points north of Whitehall, N. Y., on the line of the D. & H. Co. Prior to the advance the class rates from Bos- ton and New York to the points in question were practically equal to the rates from Buffalo, the distance to Whitehall from Boston being 280 miles, from New York 221 miles, and from Buffalo 420 miles. Such increases were made to prevent discrimination in fa- vor of Buffalo as against the points mentioned and other points. Com- plainant offered no evidence to show the rates unreasonable per se. HELD, the increases being made to prevent discrimination, no justification was es- tablished on the record for disrupting the group system of rates in effect. Lautz Bros. & Co. v. L. V. R. R. Co., 17 I. C. C. 167, 168. (i) Where through error a certain factor in a combination rate was lower than it should have been and this was subsequently corrected by an increase, it cannot be held unreasonable. Me- nasha Woodenn-are Co. v. C. & N. W. Ry. Co., Unrep. Op. 476. §5. (3) To Preserve Commodity Rela- tionship. See Comparative Rates, (a) Rates on flaxseed were advarced from Fort William and Port Arthur, Canada, to Buffalo, N. Y., and other eastern points of destination. A rate of 25c had originally been established by the Canadian Pacific Ry. from Fort William to New York City, with cor- responding rates to other eastern points of consumption to meet the rate of 23i^c from Duluth to New York. When the Duluth rate was advanced to 32i^c the suspended advanced rate from Fort William was put into effect. It appeared that rates from Fort Wil- liam and Duluth to eastern points on flaxseed should be approximately the same. These rates were compared to the lower rates on grain and grain products, but it appeared that the value of flaxseed for the past ten years has averaged twice that of corn and ma- terially more than that of wheat, and at the present time is over $2 per bushel. The advanced rate to New York was 32i/^c for a distance of ap- proximately 1,400 miles, yielding a ton mile revenue of about 5 mills, sub- stantially the same as the advanced rate of 22i/^c to Buffalo for a distance of 900 miles. HELD, there is no rea- lon why rates upon flaxseed should of necessity be the same as correspond- ing rates upon grain, but that they may somewhat exceed those rates; that the advanced rates published are not un- reasonable or unduly discriminatory and the order of suspension is vacated and the suspended tariff allowed to take effect. In Re Advances in Rates on Flaxseed, 23 I. C. C. 272. (b) Complainant attacked certain ad- vances on cypress and hardwood lum- ber from Gleason, Ark., to Kansas City, ADVANCED RATES, $5 (4) (a)— §6 (3) (a) 17 Mo., and other Missouri River crossings and points in the same territory, and to certain Mississippi and Ohio River cross- ings, taking St. Louis, Mo., Cairo and Thebes, 111., as representative. Complain- ant established its mills at Gleason in De- cember, 1904. A short time prior to this the rate from there to Kansas City, Mo., was raised from 15c to 16c per 100 lbs., and other Missouri River crossings pro- portionately. In 1909 the carriers made a general advance of practically 4c per 100 lbs. Prior to the advances com- plained of the rates on cypress lumber from Gleason to the west and north- west were the same as the rates on hardwood lumber, and generally speak- ing cypress lumb-er was for the pur- poses of rate making grouped with the hardwood at all points north of the Arkansas River. The increases in the cypress rates were caused by taking cypress out of the hardwood group and placing it with the group on yellow pine and then raising the yellow pine rate. HELD, that the rates on cypress lumber from Gleason to Kansas City and other Missouri River points and points west thereof should not be higher than the rates now applied by defendants from Group 2 points to Kansas City, or 18c per 100 lbs. C. L., minimum 30,000 lbs. The other rates complained of are proportionately re- duced except on hardwood from Glea- son to St. Louis, Cairo and Thebes, as the present adjustment of the hard- wood rates from Gleason to those points is practically the same as it was after the general advance in 1907 and not out of line with the adjustment at other points in general producing ter- ritory of which Gleason is a part. Freeman Lumber Co. v. St. L. I. M. & S. Ry. Co., 19 I. C. C. 348. §5. (4) Unreasonably Low Prior Rate. (a) Complainant attacked rate of 32c en cream in 10-gallon cans from Concor- dia, Kan., to Crete, Neb., in force from March 1 to Sept. 5, 1909. The rate from 190G to March 1, 1909, was a special rate of 20c, put in at the solicitation of complainant, and on its representation that a part of its business given to other carriers could be diverted over the de- fendant line. When the Beatrice scale (prescribed in 15 I. C. C. 109) was put in effect by the defendant, the 20c rate was withdrawn so that the application of the Beatrice rates might be uniform throughout the system. Then complain- ant withdrew its business from defend- ant and the 20c rate was restored. HELD, ordinarily the advance of a rate for a short period followed by a restoration of the lower rate raises a presumption of fact that the advanced rate was unrea- sonable, but to hold that defendant may not withdraw an unreasonably low rate, merely because that rate was voluntarily established in the first place, would amount to requiring unjust preference to complainant, and violate the funda- mental principle that rates must be uni- form under similar conditions, and under the circumstance the 32c rate could not be considered unreasonable. Fairmont Creamery Co. v. C. B. & Q. R. R. Co., 22 I. C. C. 252. §6. Right to Earn. See Evidence, §6. §6. (1) On Bona Fide Investment. (a) The trend of the highest judicial opinion would indicate that the Commis- sion should accept neither the cost of re- production nor the capitalization, nor the prices of stock and bonds in the market, nor yet the original investment alone, as the test of present value for purposes o* rate regulation. Perhaps the nearest ap- proximation to the fair standard is that of bona fide investment — the sacrifice made by the owners of the property — considering as part of the investment any shortage of returns that there may be in the early years of the enterprise. Upon thus taking the life history of the road through a number of years, its promoters are entitled to a reasonable return. This, however, manifestly is limited, for a re- turn should not be given upon wasteful- ness, mismanagement or poor judgment, and always there is present the restric- tion that no more than a reasonable rate shall be charged. In Re Advances in Rates— Western Case, 20 I. C. C. 307, 347. §6. (2) On Unearned Increment. (a) It is a conservative statement of the law to hold that a railroad may not increase the rate upon a number of com- modities solely because its real estate has risen in value. In Re Advances in Rates— Western Case, 20 L C. C. 307. 344. §6. (3) On Reproduction Value. (a) Carriers running west of Chicago advanced some 200 com.modity rates. It was contended that the Mann-Elkins Act made all rates in effect Jan. 1, 1910, rea- 18 ADVANCED RATES, §6 (3) (b)— §6 (4) (c) sonable; that the credit of the railroads was becoming impaired; that the roads were not earning an adequate return upon the reproduction value of their properties and had a legal right to earn a reasonable return upon the actual fair value of the railroad as it exists to-day as a going concern, and that the cost per unit of service was In- creasing. HELD, that the burden of proof under the Mann-Elkins Act compelled the railroad to justify as rea- sonable the increased rate as a whole; that the net earnings of railroads under governmental regulation when there was stability of rates and the extinction of rebates to have been greater than ever before, and that the credit of the rail- road was as high as it had ever been, and the dividends paid greater. That to allow a carrier to earn a reasonable re- turn upon the present value of its prop- erty rather than upon its bona fide In- vestment therein would mean to permit rates to increase as the value of the prop- erty increased and would be against pub- lic policy; and that the Commission could not sanction the idea that any rail- road had a legal right to do this. That the gross net earnings of the carriers were greater than ever before in their history, and that upon the record the ad- vanced commodity rates already paid their due share of the value of the service rendered by the carrier, many of them being twice as high for the haul imme- diately west of Chicago as corresponding rates for a similar rate Immediately east of Chicago. Carriers asked to cancel tariffs carrying the advanced rates and adhere to rates already in effect. In Re Advances in Rates — ^Western Case, 20 I. C. C. 307. (b) Carriers In Official Classification territory advanced all their class rates and about half of their commodity rates. No testimony was introduced tending to show the cost of reproducing the proper- ties of the defendants. HELD, the Com- mission was compelled to dispose of the case upon the evidence available; that It Is plain that a physical valuation would Introduce into the calculation a new ele- ment which might lead to a different con- clusion. The Commission has several times urged Congress to authorize a re- productive valuation of those railroads subject to federal jurisdiction. It Is re- ported that certain railroad companies are making such valuations themselves, and the results may at any time be urged upon the Commission and the courts as a justification for higher freight rates. The interest of the public ought not to depend upon a valuation made entirely by the owners of these properties, no matter how honestly the work may be prosecuted. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 305. §6. (4) Right To Earn Surplus. See Evidence, §57 (a); Reasonable- ness of Rates, §33. (a) Carriers in Official Classification territory increased all class rates and ibout half their commodity rates. They contended they should be allowed to invest in improvements and additions ■o the property an amount equal to that paid by way of dividends to stockholders. In the year 1910 rail- road dividends aggregated $450,131,650. HELD, that inasmuch as every dollar thus added to the value of the prop- arty justifies, according to the claim of the defendants, an added net return, ^he Commission cannot properly permit m advance in rates with the intent o produce an accumulation of surplus or this purpose until the status of he surplus is determined by legisla- ive action or judicial Interpretation, n Re Advances in Rates — Eastern Case, iO I. C. C. 243, 270. (b) Any new money put into railroad property whether derived from the sale of securities or from surplus, which might have been appropriated to divi- dends, represents new value — an addi- tion to the property — and on this addi- tion the stockholders interested are entitled to a reasonable return if that can be had for an additional service ?iven. But It Is not equitable that be- cause the directors of a corporation lee fit to distribute to the stockholders ess than the amount which the com- oany earns and may be appropriated to lividends, the shippers who made this 'arge dividend and surplus possible ihall be increasingly taxed In geomet- •ical progression to make return upon t. New improvements should bring lew revenue. The risk of the stock- lolders in Investing their money in these Improvements Is the same risk •hat they took when they invested ■heir original funds in the original property. In Re Advances In Rates — Western Case, 20 I. C. C. 307, 341: (c) A railroad is justified no doubt 'n maintaining a surplus which will in- jure dividends to its stockholders dur- ADVANCED RATES, §6 (5) (a)— §6 (6) (c) 19 ing lean years; and it may accumulat»3 through the years fui\ds to meet obso- lescence in plan*, unless this charge is taken care of in maintenance. The one other legitimate end for which a surplus may in reason be accumulated is to supply facilities in the r.ature of luxuries, which cannot be made to yield adequate return upon the capl ^1 invested. This would appear to be as broad a definition of a legitimate surplus as could be desired and when it is considered that the maintenance ac- counts of these carriers practically re- build the roads every ten years, it seems to be as broad a definition as necessity would require. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 336. §6. (5) For Permanent Improvements. See Reasonableness of Rates, §26, §27 (cc). (a) Both the Supreme Court and the Commission are committed to the proposition that in fixing a fair return upon railroad property for the purpose of determining whether a given ad- vance is reasonable the railway ought not to treat as a part of its operating expenses the cost of permanent im- p-rovements or extensions, and this must of necessity mean that the rates should not be sufficient to allow both the payment of dividends to stockhold- ers and interest to bondholders, and an additional sum for the purpose of Improving and increasing the value of the property. Each generation may well be required to bear its own bur- den, and the stockholder should not ob- tain both an adequate dividend upon his stock and an addition to the value of his property. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 266. (b) It remains for the Supreme Court yet to decide that a public agency such as a railroad created by public authority, vested with governmental au- thority, may continuously increase its rate in proportion to the increase in its value, either (1) because of better- ments which it has made out of in- come, or (2) because of the growth of the property in value due to increase in value of the land which the company owns. Advances in Rates — Western Case, 20 I. C. C. 307, 339, 340. (c) Public policy forbids the theory that a carrier is entitled to increase rates so as to earn a return upon bet- terments created out of income. Its return should come from increased traf- fic and operating economy. Advances in Rates— Western Case, 20 I. C. C. 307, 340. i^6. (6) All Traffic will Bear. See Evidence, §45 (c); Reasonable- ness of Rates, §6 (6). (a) Tlie Commission has never ac- :epted the doctrine that the best test ^f the reasonableness of the rate is whether the traffic will move freely under it, although it has alwayi deemed the state oT an industry a pertinent fact in- considering the rea- 3oiiableness of the rate. In Re Trans- portation of Wool, Hides, and Peits, 23 [. C. C. 151, 156. (b) The advance in rates on staves, hoops and heading from various sta- tions on the line of the St. L. I. M. & S. Ry. in Arkansas and southern Mis- souri to certain points on the Atcha- falaya River and Bayou Teche in Louisiana from 18c to 24c per 100 lbs. is not shown by defendants to have been justified and the increase is held o be unreasonable, it appearing that the 18c rate was necessary to enable this traffic to move and such rate not appearing to be unduly low. In Re .\dvances on Staves, 23 I. C. C. 382. (bb) It is manifest that when addi- tional revenues are desired and rates ire to be increased for that purpose I horizontal advance in all rates on I fixed percentage instead of yielding idditional revenues would not improb- ibly result in a reduced revenue. Com- )etitive and commercial conditions have 50 important a relation to the move- nent of particular kinds of traffic as o make such a readjustment of a rate schedule inadvisable if not altogether mpossible. To increase a rate on a ;iven commodity when it is already as ligh as competitive and commercial •onditions will allow means that it will ease to move, and such a rate will lecessarily result in a loss even of the evenue that has theretofore been en- oyed on that commodity. Railroad Commission of Texas v. A. T. & S. F. ly. Co., 20 I. C. C. 463, 482. (c) The Commission cannot accept he theory that rates may be increased )y progressive advances as long as th« iraffic moves freely and until the high- 20 ADVANCED RATES, §6 (6) (d)— §7 (1) (c) est point under which the traffic will move freely is reached. Some traffic must move, and reasonably freely, up to the point where the rate becomes pro- hibitive. Commercial Club of Omaha v. A. & S. R. Ry. Co., 19 I. C. C. 419, 421. (d) While the Commission accepts the theory that the mere fact of raising a rate carries with it no presumption that the increase was not rightfully made, it is not ready to accept the theory that rates may be lawfully and reasonably in- creased by progressive advances as long as the traffic moves freely and until the highest point under which the traffic will move freely is reached, since some traf- fic must move, and reasonably freely, up to the point where it becomes prohibi- tive. Commercial Club of Omaha v. An- derson & Saline River Ry. Co., 18 I. C. C. 532, 536. (e) Carriers are not justified in rais- ing rates on the ground that the indus- tries served have greatly prospered un- der the old rates and can bear the ad- vance, but the lawfulness of an advance in rates must be determined by their rea- sonableness. Oregon & Washington Lum- ber M'f'rs Ass'n v. U. P. R. R. Co., 14 I. C. C. 1, 15. §6. (7) Cost of Insurance. (a) Defendant rail and water carriers in their bills of lading exempted them- selves from all liability for losses except those due to their own negigence, and protected them_selves by taking out insur- ance on the shipments moving over rail and water routes. Shippers also provided themselves with insurance, not being able to rely on those effected by the car- riers, since on such insurance the names of the shippers were not specified, the value of the invoice was not known, nor had the shipper any information as to the company in which the insurance was placed, the nature of the policy taken out, or the conditions attaching to the policy. Defendants raised the class rates on rail and water transportation of mer- chandise from Atlantic ports to Minneap- olis and Chicago, the purpose of the in- crease being to cover the cost of insur- ance incurred by the carriers. HELD, since the shippers were not adequately protected by the insurance effected by the carriers, the increases were unreason- able and should be reduced to the former rates. Wyman, Partridge & Co. v. B. & M. R. R. Co., 13 L C. C. 258, 264. III. EVIDENCE. §7. Change in Conditions. See Evidence §9. §7. (1) In General. See Evidence, §9, §51 (b); Facilities and Privileges, §15 (i); Reasonable- ness of Rates, §7, §28 (q). (a) The fact that the cost of produc- ing wool has increased while its market price has fallen is no reason why less than a reasonable freight rate should be established for its transportation. In Re Transportation of Wool, Hides and Pelts. 23 L C. C. 151, 156. (aa) Carriers in Official Classifica- tion territory sought to increase the minimum charge on single packages and small lots of freight from 25c to 35c. Ever since the passage of the original Act to Regulate Commerce and the birth of the Official Classification, the minimum charge in nearly all Official Classification territory has been 25c. HELD, that the cost figures pro- duced being from but a few of the hundreds of stations in Official Classi- fication territory, are not sufficiently reliable and so representative of condi- tions of that territory as to overcome the presumption of the reasonableness and remunerative character of the pres- ent minimum charge, nor do they sus- tain the burden of proof which the statute places upon the carriers, and are not sufficient to justify the advance from 25c to 35c. In Re Advances in Rates on Freight in Single Packages and Small Lots, 22 I. C. C. 328. (b) A possible construction of a form- ed order of the Commission adopted by the carriers is not of itself sufficient to justify an advance. Chamber of Commerce of Houston V. G. H. & S. A. Ry. Co., 23 I. C. €. 214, 216. (bb) A changed method of operating, inaugurated of defendant's own motion and for its own convenience, is no justification for a proposed increase. In Re Advances on Milk, 23 I. C. C 500, 502. (c) The Commission investigated the propriety of advances in rates on wheat and coarse grain from North Dakota and South Dakota producing points to pri- mary grain markets such as Minneapolis, Duhith, IMilwaukee, Chicago, Omaha and points taking the same rates. It ap- peared that since 1900, while the wheat ADVANCED RATES, §7 (1) (cc) — (d) 21 has increased greatly in value, rates have materially decreased. The cost of opera- tion has materially increased, so that while the reduced rates and higher wages have come from the carrier's revenues, the money has gone to the farmer. It appears that the situation in South Da- kota is peculiar owing to Canadian com- petition, and the short-line distance from North Dakota reflected in rates from South Dakota. Claims for loss from leakage have Increased enormously, as well as from other causes, and the enormous increase in the value of the grain has largely in- creased the amount of the claims. The average rate per ton-mile on wheat in South Dakota is 8.38 mills and the aver- age for the four states of Iowa, Minne- sota, North Dakota and South Dakota is 8.48 mills. HELD, that the carriers have sustained the burden of proof which the statute imposes upon them and that the proposed advances are not unjust or un- reasonable. FURTHER HELD, that the former established and recognized rela- tions in rates as between Minneapolis. Duluth, Milwaukee and Chicago should be restored except in instances of bona fide errors or of elimination of violations of the fourth section of the Act. In Re Advances on Grain, 21 I. C. C. 22. (cc) It has never be«n the view of the Commission that the prosperity of a shipper, a locality or a state 'was a rea- sonable excuse for the imposition of rates conditioned on such prosperity, but when coincident with very substantial reductions in rates the price of a com- modity has nearly doubled in value and claims for loss and damage have mate- rially increased, two of the essential fac- tors of a reasonable rate, value and risk, have been changed in favor of the car- rier's contention that proposed advances in rates should be allowed. In Re Ad- vances on Grain, 21 L C. C. 22, 35. (d) In Burnham - Hanna - Munger Dry Goods Co. V. C. R. I. & P. Ry. Co., 14 I. C. C. 299, reductions were ordered in the portions of the through rates on the first five classes applying from the Mississippi River to the Missouri River on shipments from Atlantic seaboard territory to Mis- souri River cities. The order of the Com- mission was enjoined, but finally upheld by the United States Supreme Court in Interstate Commerce Commission v. C. R. I. & P. Ry. Co., 218 U. S. 8^. The rates prescribed were thereupon published, ef- fective Oct. 26, 1910. The two-year limit of the Commission's order expired Nov. 10, 1910, and thereupon defendants filed increases in those rates, restoring the rates which had been condemned. The proposed increases were suspended, and investigated in this proceeding. In Docket No. 3684, consolidated for hear- ing, it is alleged that prior to the estab- lishment of the rates prescribed in the Burnham-Hanna-Munger case defendants had for many years applied the same rates between the Mississippi River and the Missouri River upon all traffic mov- ing under the class rates involved from all territory east and southeast of the Indiana-Illinois state line to the Atlantic coast; that rates from all of said points excepting Atlantic seaboard territory have since Aug. 25, 1908, been excessive and unreasonable, at least to the extent that they exceed the rates prescribed by the Commission on traffic from the At- lantic seaboard, and pray that rates be established from Mississippi River cross- ings on traffic originating in Central Freight Association, southeastern and Carolina territories, not in excess of those prescribed in the Burnham-Hanna- Munger case on shipments from Atlantic seaboard territory. Reparation is prayed for on shipments moving subsequent to Aug. 25, 1908. It appeared that competi- tion has forced the making of the same rates from all of the Mississippi River crossings to the Missouri River cities, except Sioux City, where the rates apply only through the upper Mississippi River crossings. It appeared that the combina- tion of rates from Atlantic seaboard ter- ritories to the JMississippi River plus the rates prescribed in the Burnham-Hanna- Munger case make lower through rates than the present combinations from some intermediate points in Central Freight Association territory. It is the Commis- sion's view, expressed in former opinions, that higher differentials applying between the Mississippi and Missouri rivers might be maintained from Indianapolis than from the Atlantic seaboard aiid the re- duction in the Atlantic seaboard rate was therefore greater than would have been prescribed to apply to all of the territory east of the Indiana-Illinois state line. Since its former decision, the Commis- sion has carefully investigated the ques- tion of whether^r not there was justifi- cation for general advances in freight rates. Taking all of the records now available, the Commission finds that de- fendants have to a certain extent sus- tained the burden of proof cast upon them by the statute with regard to the 22 ADVANCED RATES, §7 (1) (e) — (f) advances in these rates on traffic from Atlantic seaboard territory, because it now has the question of those rates be fore it upon the traffic from all of the territory east of the Indiana-Illinois statt line. HELD, that defendants' througl rates upon the first five classes to the Missouri . River cities, Kansas City to Sioux City, both inclusive, and to points taking the same rates, from points ol origin east of the Indiana-Illinois statf line, commonly known in traffic circlet and described in tariffs as Trunk Line territory, Central Freight Association ter ritory, Southeastern territory and Caro lina territory, and exclusive of points in Atlantic seaboard territory, applying through the Mississippi River crossings St. Louis to East Dubuque, both inclu sive, are unjust and unreasonable, be cause those portions of the through ratet which apply from those Mississippi Rive, crossings to the Missouri River cities as applied to through shipments are unrea sonable. In both cases defendants shoulc be required to establish and maintain foi a period of not less than two years a^ parts of the through rates applying fror the Mississippi River crossings mentioned to the Missouri River cities mentioned and to points taking the same rates, except that to Sioux City and to points taking the same rates they shall apply from upper Mississippi River crossings East Burlington to East Dubuque, inclu sive, rates from all the said points o origin, east of the Indiana-Illinois stat( line, including Atlantic seaboard terri lory, which shall not exceed the follow ing: Class 1 2 3 4 5 Rate 55 41 32 24 2f That on the lettered classes correspond ing reduction should be made so as to make the rates as follows: Class A B C. D E Rate ........22 18 15 12 10 That considering the Commission is pre- scribing what may well be considered a new rate adjustment for a large terri tory and an enormous volume of traffic, reparation should be denied. In Re Ad vances in Rates, 21 I. C. C. 54G, 555, 557. (e) All the carriers m Official Classi- fication territory advanced all their class rates and about one-half their commodity rates. The Commission in stituted an inquiry whether the ad- vanced rates were reasonable and what was the justification for publishing the general advance. Voluminous testi- mony was introduced as to the ex- penses of the carriers. The Commis- sion examined the evidence as to the expenses the carriers were under, pres- ent and prospective, and compared them with the revenues for the year 1910. From a general review of the situation the Commission HELD: the cost of supplies were not much ad- vanced; wages were not much in- creased; the demands of the public will continue to grow; traffic will in- crease; but the same advantage may not accrue to carriers in this terri- tory in the future as in the past; something should be expected from the introduction of additional economy, but perhaps not to the same extent as in the past; the net revenues for the year 1910 were the greatest in the his- tory of the railroads; those revenues would still have been ample had the present rate scale been applied to the operations of that year; that during the last eleven years rates have ad- vanced and on all the facts on the record the carriers are ordered to can- cel their advanced tariffs on file and restore their former rates. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 285, 306. (ee) WJiile there doubtless has been spasmodic and demagogic effort in vari- ous sections of the country which made for the injury of the carriers, the trend of control and regulation as a whole has been conservative, wise and sympa- thetic towards the investors in such enterprises. The United States has placed far less restrictions upon the carriers than has England or Canada. Advances in Rates — Western Case, 20 L C. C. 307, 319. (f) The reasonableness of a rate must of necessity depend upon the condi- tions surrounding the traffic at the time it moves. The length of the haul, the comi)etition to be met. the cost of the service, the value of the service, the density or volume of the tonnage, as well as the general transportation conditions then existing are factors that have a more or less definite re- lation to the rate that a carrier may reasonably demand for a transportation service. And these factors^ except pos- sibly the length of the haul, the grades, and other transportation conditions are in their nature neither permanent nor ADVANCED RATES, §7 (1) (g)— §7 (2) (c) 23 fixed; but necessarily change with the general economic panorana. No pre- sumption of law, therefore, can arise against an advanced rate simply be- cause a lower rate previously existed. Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 318. (g) The fact that the defendants found it impracticable to maintain an increased rate did not demonstrate its Inherent unreasonableness. Pabst Brew- ing Co. V. C. M. & St. P. Ry. Co., 17 I. C. C. 359, 360. §7. (2) Increased Operating Expenses. See Reasonableness of Rates, §9, §20 (g). (a) Where a carrier voluntarily changes its method of gathering cer- tain milk shipments in order to expe- dite its service and save itself expense in handling other shipments of milk, it cannot contend that its changed meth- od of gathering has increased its cost of service to such an extent that the milk shipments first referred to should pay an increased rate. In Re Advance by the D. & H. Co. on Fluid Milk, 23 I. C. C. 500, 501, 502. (aa) In an investigation determining the reasonableness of an advanced rate concerning exhibits submitted by the carriers, it is held, if the mean of the minimum and maximum averages of the apportioned items, charged to the unallocated and unapportionable items of cost of service, are in excess of the minimum charge, that fact will go far to- ward establishing the burden of proof which the statute casts upon the carriers. In Re Advances on Freight in Single Packages and Small Lots, 22 I. C. C. 328, 331. (b) The Commission held in 13 I. C. V. 668 that an advance upon hard- v/ood lumber from 75c to 85c per 100 lbs., from Chicago territory and points west, to the Pacific coast, was unrea- sonable and ordered the establishment for two years of the 75c rate. Upon the expiration of that order the de- fendants filed tariffs advancing the rate to 85c, which is involved in this com- plaint. The testimony upon the pres- ent hearing showed but two particulars in which a change of condition had oc- curred since the promulgation of the former order. It appeared that the competition of foreign hardwoods was somewhat more forceful at the present time than formerly and that while the consumption of such lumber was con- tinually increasing upon the coast the amount shipped from the east was rather upon the decrease. Lumber manufacturers insisted that the effect of any substantial advance in the pres- ent rate would be to finally exclude eastern hardwoods from the market of the Pacific coast. The carriers showed a substantial increase in oper- ating expenses as compared with two years ago, due mainly to an advance in wages. HELD, the wage increases for the most part have not been long enough in force to determine their exact effect upon the cost of operation, but the net returns to these transcon- tinental lines under old conditions were exceedingly liberal and it is be- lieved will be ample under present conditions without any increased rate; that the proposed rate of 85c as ap- plied to hardwood lumber and staves and headings from Chicago territory and west, being that territory from which the present 75c rate is in ef- fect, would be unjust and unreason- able. Rate of 75c per 100 lbs. pre- scribed. In Re Rates on Hardwood Lumber, 21 I. C. C. 397. (bb) Cost figures indicate that under skillful management additional tonnage may be handled under higher wages without increasing the cost of the serv- ice. In Re Advances in Rates — Western Case, 20 L C. C. 307, 378. (c) It is well understood that in re- cent years there has been a continu- ous advance in the price of most ma- terials and supplies used in construct- ing and operating a railroad; that there has been a constant tendency to advance wages, and that all this has tended to increase the cost of opera- tion. Upon the other hand there has been a steady improvement in the method of handling freight. Trains are longer; cars are larger and more heavily loaded; grades are easier; the amount hauled by a given engine is greater; the density of traffic is much greater. All this tends to reduce the expense of transportation. These two sets of causes work in opposite di- rections and tend to balance one an- other. It is not certain what the net result has been at any time in the past or is to-day. It is not improb- able that at the outset the economies of operation more than outweighed the 24 ADVANCED RATES, §7 (2) (d)— §7 (4) (a) increased cost of labor and supplies, but that of late the reverse has been true. Commercial Club, Salt Lake City V. A. T. & S. F. Rv. Co., 19 I. C. C. 218, 222. (d) On ground iron ore from Iron Ridge Junction, Wis., to Denver, Colo., a rate of $9.52 per gross ton was col- lected, which represented an increase of 25 per cent over a rate in effect shortlj' before the shipment. Defendants sought to justify the increase by the increased cost of operation. The evidence showed that from 1899 to 1909, the operating ex- penses of all railroads had increased 1.3.5 per cent compared with gross earnings. The rates from Chicago, which took the same rate on ground iron ore as Iron Ridge junction, to Denver on analogous commodities were, on ground arsenic, 25c; paving cement, 35c; foundry facings, 361/^c; lime, 32c; ground limestone, 32c; crude magnesite, 32i^c, and whiting 34^c. HELD, the advance in operating expenses was not sufficient to justify the increased rate collected which was unreasonable to the extent it exceeded 371/20 per 100 lbs. Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 596, 598. (dd) A slight increase in the cost of operation does not justify an advance of 25 per cent on a low grade commodity. Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 596, 598. (e) Where the margin of profit to the carrier on a low grade commodity was small to begin with and the business itself is not so desirable now as formerly, the enhanced cost of operation may properly be offset by an increase of the rate. Mountain Ice Co. v. D. L. & W. R. R. Co., 15 I. C. C. 305, 320. (f) An increase in the cost of labor and in the price of railroad materials and supplies does not necessarily imply that there has been a decrease in the net earnings of the carrier during the same period. A material growth in its traffic and economies resulting from an alert and skillful management, may readily overcome the increase in the cost of labor and its materials and thus leave its net revenues unimpaired. Shippers' & Receivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. 264, 265. (g) Everything else remaining the same, an increase in cost of operation would justify an advance in rates. Other things remaining the same, in- crease in traffic requires a decrease in rates. It may, therefore, happen that the increase of traffic will more than offset the increase in operating ex- pense. Cattle Raisers' Ass'n of Texas V. M. K. & T. Ry. Co , 13 I. C. C. 418, 430. §7. (3) Impairment of Credit. (a) It was urged as a reason for per- mitting an advance in freight rates in Official Classification territory that the increase was necessary to maintain the credit of American railroads. It appeared that in 1895 the average rate of interest paid by all the railroads of the country was 4.69 per cent. In 1909 this figure had been reduced to 3.9 per cent and the saving computed upon the indebtedness of 1909 represented by this decrease in the rate of interest would have amounted to $77,000,000. HELD, the credit of American railroads has gained rather than lost in ten years, and if the credit of American railways is still sound either at home or in foreign money markets it is not because of, but in spite of the declarations of railroad operators. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 251, 252. (b) The credit of American railroads should be first class. They should be able to borrow money at rates as low as the most stable of the great indus- tries and the most solvent of municipal- ities. The railroad is interested in get- ting its money as cheaply as possible while the stock and bond buyer is inter- ested in securing as high a rate as possible for the money which he invests alone. So far as the bond buyer is con- cerned it is evident that no matter to what elevation rates might be raised it would not increase by the fraction of a cent the interest which he would receive. It is not to be imagined that an increase in railroad revenues would increase the rate of interest upon rail- road bonds. Advances in Rates — West- ern Case, 20 I. C. C. 307, 331. §7. (4) Cessation of Competition. See Competition. (a) Complainants shipped bananas in carloads, Charleston, S. C, to Augusta, Ga., under a rate of 20c per 100 lbs. These shipments moved between May 4, 1909, and Jan. 9, 1910. To May 3, 1909, and since Feb. 18, 1910, bananas moved ADVANCED RATES, §7 (4) (b) — (d) under a rate of 15c per 100 lbs., which with the above excel tion had been con tinuoiisly in effect for more than 9 years. The ]5-cent rate was established to meet competitive conditions on the haul from Augusta to Savannah, Ga., and territory intermediate to Augusta, Ga., and Co- lumbia, S. C. HELD, that the long ex- if^tence and use of a rate is an important fact tending to show that it is sufficiently high and properly requires the carriers to explain or justify an increase thereof; the evidential force of such a showing is weakened when the rate has been es- tablished on account of competitive con- ditions which the carrier in the exercise of its discretion might lawfully meet, but which it might not be required to meet. Complaint dismissed. Audley Hill & Co. v. S. Ry. Co., 20 I. C. C. 225. (b) Prior to Aug. 13, 1907, the through class rates of defendant from New Oi- lcans via Mobile to Montgomery, Selma and Prattville, Ala., were in excess of the combination of locals on Mobile and the same was true of the through rates from New Orleans to said points via Pensacola. On Aug. 13. 1907, defendant raised the local rates from New Orleans to Mobile and from Mobile to Pensacola so as to make the combinations of locals equal to the through rates from New Orleans to Montgomery, Selma and Prattville, but did not disturb the local rates from Mobile and Pensacola to such point or the through rates from New Orleans to them. Complainant shippers at New Or- leans attacked the increase and also the through rates to them from New Orleans via Mobile and via Pensacola. The local rates from New Orleans to JNIobile and Pensacola had been ini effect for many years prior to the increase and had been determined by water competition which had ceased to be practicably operative. New Orleans was engaged in shipping f^taple goods to Mobile and adjacent ter- ritory and was keenly affected by the rise in rates. The rates from New Or- leans to Mobile and Pensacola had been in effect for over twenty years and there was no evidence that they were not com- pensatory. They exceeded the rates from New Orleans to other transporta- tion points, e.g., Natchez, Vicksburg, Greenville, and Memphis, where the dis- tances were much greater and also ex- ceeded the rates from Nashville, INIem- phis, Cincinnati and Louisville to points where the distances were approximately the same. Prior to the advance the rates between New Orleans and Mobile and New Orleans and Pensacola were identi- cal in both directions. Under the ad- vance the rates were in many cases greater from New Orleans to Mobile and from New Orleans to Pensacola than the rates between such points in the opposite direction. Between New Orleans and Memphis, New Orleans and Greenville, New Orleans and Natchez, and New Or- leans and Vicksburg, the rates were the game in both directions. The rates from New Orleans to Montgomery, Selma and Prattville were higher on all classes than the rates to them from other points typi- cal of the situation in the southeast, from where the distances are greater, e.g., Brunswick, Ga., Savannah, Ga., Charleston, S. C, Wilmington, N. C, and Nashville, Tenn. From some of the Vir- rinia cities to Montgomery and Selma the rates were less than from New Or- leans to Montgomery and Selma, al- though more than twice the distance. The rates per ton mile were much greater from New Orleans to Montgomery, Sel- ma and Prattville than they were from Memphis, St. Louis and Louisville. HELD, the increase in the local rates from New Orleans to Mobile and from New Orleans to Pensacola was unreason- able, and should not exceed those in ef- fect prior to the advance; and that the through rates from New Orleans to Mont- gomery, Selma and Prattville were un- reasonable and should not exceed the combination of locals based on Mobile and Pensacola as such locals stood prior to the increase attacked. New Orleans Board of Trade v. L. & N. R. R. Co., 17 T. C. C. 231, 237; sustained, L. & N. R. R. Co. V. L C. C, 184 Fed. 118; enjoined, 195 Fed. 541 (Mack, J., dissenting). (c) Where former rates were forced down by competition, which competition has since ceased, and the advanced rate is not shown to be unreasonable per se, it will be sustained. Schoenhofen Brew- ing Co. V. A. T. & S. F. Ry. Co., 17 L C. C. 329. (d) While a carrier may establish a lower rate to meet competitive con- ditions, and the Commission takes into account such conditions in passing upon the reasonableness of ' the rate ad- justment, it does not follow that in a particular instance the Commission will condemn an advance of a rate which was formerly maintained to meet competition between different producing 26 ADVANCED RATES, §8 (1) (a) — (d) points. Florida Fruit & Vegetable Ass'n V. A. C. L. R. R. Co., 17 I. C. C. 552, 558. §8. Presumptions. See Evidence, IV. §8. (1) Continuance of Prior Rate. See Evidence, §68 (a), (c) ; Express Companies, §11 (5) (a), §22 (a); Reasonableness of Rates, §25 (h); Voluntary Rates. (a) Railways are authorized to es- tablish in the first instance their trans- portation charges and the presumption of right doing attaches to their acts in the establishment of those rates. No presumption of law against a particu- lar rate springs from the fact that the rate in question was an advance over some previous rate. The burden of proof is always upon the party who attacks an existing rate. The cir- cumstance that the railway has for a series of years maintained a lower rate or a different relation of rates is an evidentiary fact which may be intro- duced and considered like any other fact. I. C. C. V. Chicago G. W. Ry. Co., 209 U. S. 108, 119, 28 Sup. Ct. 493, 52 L. ed. 705. (aa) There is no presumption of wrong arising from the changing of a rate by a carrier and undoubtedly while rates are changed th'e carrier making the change must, wheoi. properly called upon, be able to give a good reason therefor; the mere fact that a rate has been raised carries with it no pre- sumption that it was not rightfully done. I. C. C. v. C. G. W. Ry. Co., 209 U. S. 108, 119, 28 Sup. Ct. 493, 52 L. ed. 705. (b) As the law stood November 26, 1909, the mere fact that rates were in- creased by a railroad over what they had been previously created no pre- sumption that they were not fair and reasonable. Louisville & N. R. R. Co. V. I. C. C, 195 Fed. 541, 557. (bb) Ordinarily the advance of a rate for a short period followed by the restoration and maintenance of a lower rate formerly in force, tends to raise a presumption of fact that the advanced rate was unreasonable. This rule may be modified where a special rate, not compensatory, is put in in order to "scalp" business on competitive traffic. Fairmont Creamery Co. v. C. B. & Q. R. R. Co., 22 I. C. C. 252, 254. (c) The circumstance that the de- fendants established and voluntarily maintained certain rates for twenty-five years is not conclusive evidence that they were reasonable, but it is in the nature of an admission upon their part to that effect, which requires, when these rates are advanced, some satisfactory explana- tion. When it further appears that a rate voluntarily maintained for a quarter of a century has within seven years been increased by one-fourth, the reason by which it is sought to justify a still fur- ther advance must be even more cogent. This does not conclusively show that the carriers ought not to be permitted to ad- vance such rate at the present time nor n the future, but it is evidence which bears strongly upon the propriety of a present increase. U. S. Leather Co. v. So. Ry. Co., 21 I. C. C. 323, 327. (cc) Complainants attacked an in- crease in the rates on leather from southern tanneries to various northern destinations. Taking New York as a typical market the average distance from all points in controversy was 806 miles, and the average ton mile rate 11.22 mills. Some time previous to 1887 defendant put in effect a rate of 30c per 100 lbs. from New York to Chatta- nooga on hides and the same rate from Chattanooga to New York on leather. On account of these low rates various tanneries were located in the South. In 1903 these rates on leather were ad- vanced 5c per 100 lbs. In 1907 a sec- ond advance of 3c was made. In the fall of 1910 another advance of 2c was made, which is involved in the present proceeding. HELD, that from a trans- portation standDoint leather is desir- able freight. That the burden rests upon the carriers of justifying the ad- vance, and while the fact they estab- lished and voluntarily maintained these rates for 25 years is not conclusive evi- dence that they were reasonable, it is in the nature of an admission which requires when those rates are advanced some satisfactory explanation. This not having been offered, the advanced rates are held unreasonaljle and defend- ants required to maintain in effect their former rates. Leave given complainant to file supplemental complaint for repa- ration. United States Leather Co. v. Southern Ry. Co., 21 I. C. C. 323. (d) The long continuance of a rate voluntarily established and not pub- ADVANCED RATES,>§8 (1) (dd) — (h) 27 lished under the compelling influence of competitive conditions is in itself evidence of no little weight of its rea- sonableness, but the long continuance of a rate largely loses its value as evidence in a case involving an ad- vanced rate for the same service, when it is shown that the prior and lower rate was the result of the influence of a strong movement by water. Com- mercial Club of Omaha v. S. P. Co., 20 I. C. C. 631, 636. (dd) An advance in a long-established •rate at once suggests the propriety of an inquiry of the carrier for a state- ment of its reasons for making the advance. But in making its explana- tion the carrier is not under the neces- sity of overcoming the technical weight and force of a presumption of law that the previously existing lower rate was a reasonable rate. The long continuance of a lower rate may be said to raise a pre- sumption of fact that the advanced rate is unreasonable. But this in a sense is no presumption at ftll, for it cannot carry be- yond the actual tendency of the fact itself to produce that belief in the mind of the investigator. The fact that the lower rate has long remained undisturbed has strong probative value. Consid- ered merely as evidence, such a rate history, in the absence of some ex- planation that satisfies the judgment of the propriety and need of an increase in rates, would ordinarily have great force. But in every case the Commis- sion must consider and weigh all the other facts of record before arriving at the conclusion that the increase in rates was unreasonable. Memphis Cot- ton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 318. (e Where carriers voluntarily main- tain a rate between certain points for a long period of time the presumption is that such rate is reasonable, and where a long established rate is raised for a short period and then voluntarily reduced to the former point the pre- sumption is that the advanced rate is un- reasonable, but this presumption may be overcome by proof to the contrary. Sun- derland Brothers Co. v. P. M. R. R. Co., 16 1. C. C. 450, 451. (ee) An advanced -rate in the absence of good showing by the carriers tend- ing to justify the advance will be pre- sumed to be unreasonable. Sunder- land Bros. Co. V. P. M. R. R. Co., 16 I. C. C. 450, 451. (f) Where a complainant in attacking 1 rate as unreasonable offers evidence show that other carriers in the same reneral territory are carrying the same commodity for longer distances at ower rates than defendant and that or many years defendant itself volun- arily accepted a substantially lower rate for the same service, the burden )f justifying the higher rate com- lained of devolves upon the defendant arrier. Shippers' & Receivers' Bu- •eau of Newark v. N. Y. O. & W. Ry. ::o., 15 I. C. C. 264, 265. (g) Complainant attacked the prac- ice of defendants in applying the 4th lass, C. L., and third class, L. C. L., ardware rate to castings, japanned, in )fflcial Classification territory, whereas castings took fifth class, C. L., and fourth lass, L. C. L. The process of japan- ling consists in dipping the casting into 1 black solution made from asphaltum, vhich gives an outside surface to pre- ent rusting, but does not enhance the value except to the extent of the actual ost of japanning, namely, l-5c per lb. Prior to the passage of the Amended Act in 1906, the defendants did not enforce the rates attacked but applied ^fth class rates on carloads and fourth class rates on less than carloads. Under Southern and Western Classi- fications, japanned castings took the same rates as castings. Defendants applied fifth c'ass rates to washing machine md sewing machine castings, japanned, n carloads. The rates complained of -esulted in increasing the cost of japan astings to various destinations from $9 to $10.80 per car. Defendants con- tended that they applied the. rate com- plained of on account of the imprac- ticability of distinguishing castings and 'lardware. HELD, the fifth and fourth 2lass rates having formerly been ap- plied during a long period and the in- crease having resulted from a rule nade merely for the convenience of he carriers and based on no sound transportation reason, the rates at- tacked were unreasonable to the ex- ent they exceeded fifth class, C. L., and 'ourth class, L. C. L.. Indianapolis ^'reight Bureau v. C, C, C. & St. L. Ry. Co., 15 I. C. C. 504, 529. (h) Where an advance is made in rates long maintained and the evidence shows that the trafllc affected is large, important and constantly increas- ing, the advance will be held unjust 28 ADVANCED RATES, §8 (1) (i) — (ii) unless it is satisfactorily explained. Pacific Coast Lumber Mfrs. Assn. v. N. P. Ry. Co., 14 I. C. C. 23, 38. (i) Complainants were manufacturers and shippers of common lumber, cedar, fir, hemlock, larch, pine, spruce and shingles from points in Washington, Ore- gon, Idaho, Montana and British Colum- bia, which points were grouped into thi "Coast," "Spokane" and "Montana-Ore- gon" rate groups, to points in -other states and territories. The increase in rates attacked went into effect Nov. 1, 1907. From 20,000 lbs. in 1904, the minimum on lumber had been gradually increased until it averaged 58,000 lbs. per car in 1906, and as a result the earnings per car under the latter minimum were consider- ably greater than in former years. Lum- ber from the points of origin in question was sold in competition with yellow pine originating in the south.' The rates on the commodities in question produced greater per ton mile revenue than those on yellow pine shipped from the south. The cost of construction and operation of defendants' lines, over which this western lumber moved, was, however, greater than that of the lines leading from the south to Chicago and other competitive points in that region. The rates in effect prior to the advance were established by the defendants when the empty car movement was predominat- ingly eastward, whereas, at the time of the advance, the movement had become predominatingly westward. This result was not, however, wholly due to the in- crease in the lumber traffic, but in part to the increase in the volume of other commodities shipped from the west. Aside from cedar there was but little difference in the selling prices of the forest products from the northwest and from the south. Under the rates pre- viously in effect, an enormous amount of capital was invested in lumber produc- ing plants at the points of origin in ques- tion, which were solely dependent upon transportation afforded by defendants. The increase in rates attacked contrib- uted toward the depression in the busi- ness which immediatedly followed. Un- der the old rates defendants prospered on their general earnings derived from all commodities and had expended large sums in permanent improvements, which sums were charged to operating expenses and deducted from their earnings to ar- rive at their net incomes. A large pro portion of their revenues had been de- rived from the lumber traffic, showing that under the old rates the transporta- tion of lumber was profitable. HELD, in connection with the decisions in Ore. & Wash. Lumber Mfrs. Assn. v. U. P. R. R. Co., 14 I. C. C. 1, the rates at- tacked from the points of origin in ques- tion to all points in the territory on and west of a line running through and in- cluding Pembina and Grand Forks, N. D.. Moorehead and Breckenridge. Minn., Sioux City and Council Bluffs, St. Joseph and Kansas City, and thence to Port Arthur, Tex., along the K. C. S. Ry., in- cluding all points that took the same rates as any of the points located on said line between and including Sioux City and Kansas City, were unreasonable to the extent that they exceeded the rates in effect prior to Nov. 1, 1907; that the rates attacked from said points of origia to points in territory east of the terri- tory above described and excluding all points that took the same rates as any of the points located on the line between nnd including Sioux City and Kansas City, were unreasonable and unjust to the extent that they exceeded 5c per 100 lbs. above the rates in effect prior to Nov. 1, 1907; that rates to points in Minnesota, east of the line mentioned, should be graded up from that line so as to reach the maximum increase at Minneapolis, St Paul, Minnesota Trans- fer and Duluth; that the rates from Missouri River crossings should be 2;raded up and the maximum increase of ^c be reached at the Mississippi River; that Chicago rates should apply to all points between the Mississippi River crossings. East Dubuque to East St. Louis, inclusive, and Chicago; and that the rates to St. Louis and points taking the ?ame rates should not exceed the rates to Chicago. Reparation awarded on the basis of the newly prescribed ates except where said rates were lower than those in effect prior to Nov. 1, 1907. (Knapp & Harlan, Comm'rs, dissenting.) Pacific Coast Lumber Mfrs. Assn. v. N. P. Ry. Co., 14 L C. C. 23, 39. Rehearing denied, 16 I. C. C. 465; decision sustained, L C. C. V. U. P. R. R., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed 308. (ii) Where a rate has been estab- lislied and maintained for a considerable period for the purpose of developing a particular industry and with full knowl- edge that the industry could not be de- veloped without it, and where, under the ADVANCED RATES, §8 (1) (j)— §8 (2) (b) 29 influence of such rate, large amounts of money have been invested in prop- erty the value of which must be seri- ously impaired by an advance of the rate, that fact is an important consider- I ation in passing upon the reasonable- ness of such advance. Western Oregon Lumber Mfrs. Assn. v. S. P. Co., 14 I. C. : • C. 61. (j) A past rate is no estoppel against an advance. Western Oregon I Lumber Mfrs. Assn. v. S. P. Co., 14 I. C. C. 61, 72. (jj) While no presumption of law j against a particular rate springs from I the fact that the rate in question is an ; advance over some previous rate, and the burden of proof is always upon the party attacking an existing rate, still the circumstance that a railway has for a series of years maintained a lower rate or a different relation of rates is an evidentiary fact and is in the nature of an admission upon the part of the rail- way that the rate maintained was at the time a just and reasonable one. Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 14 L C. C. 398, 408. (k) Even though a rate experimented with and kept in effect for a substantial period of time be held to establish the presumption that it is remunerative, it cannot be held to prevent the establish- ment of a different rate if it be found that a different rate is reasonable and proper. Hartville Celery Growers' Ass'n V. Pac. Ex. Co., 14 L C. C. 590, 593. (1) Where a railroad company makes and maintains for a long time a rate for the transportation of a certain com- modity, such rate is presumed to be re- munerative. If it is increased, the presumption is that the increase is un- reasonable. Detroit Chemical Works v. N. C. Ry. Co., 13 L C. C. 357, 362. (m) Complainant, manufacturer of sul- phuric acid at Detroit, attacked the rate of $2.72 per ton on iron pyrites from Baltimore to Detroit, as compared with the rates accorded to competitors at Chi- cago, St. Louis and Cincinnati, Prior to the date of advance, Jan. 1, 1907, the rate to Detroit had been $1.74 ex- cept for the years 1903 and 1906. when it was $1.56 and $2.68, respectively. Prior to the advance, the rate to Detroit averaged 44c a ton less than to Chicago, whereas, under the rate attacked, it av- eraged only lie less. Over the short-line distance from Baltimore to Detroit, the rate attacked yielded 4.19 mills per ton mile, and by the longer route over which the complainants' shipments moved, 3.84 mills. Since the date of the hearing, de- fendants established rates from Baltimore to Detroit, Cincinnati, St. Louis and Chi- cago of $2.21, $2.53, $2.86, and $3.00, respectively. HELD, that while the rate attacked yielded a low revenue, stilj the defendant having long maintained the rates previously in effect and com- plainant's sale contracts and competitive relations having been established on the basis of former rates, the rate attacked was unreasonable and unjust to the ex- tent that it exceeded $2.21. Reparation awarded. Detroit Chemical Works v. N. C. Ry. Co., 13 L C. C. 357, 362. (n) Where a rate is voluntarily estab- lished and maintained for a considerable period, this fact, although not conclu- sive, is strong evidence of the reason- ahleness of the rate. The force of this presumption is greatly weakened and may be altogether destroyed by the cir- cumstances under which the rate was established and maintained; but if no particular reason is shown for the putting in of the rate, if no commercial or com- petitive condition prevents the main- tenance of a higher rate, if the main- tenance of this rate has been voluntary upon the part of the carrier, the Jorce of the admission becomes exceedingly strong. Burgess v. Transcontinental Freight Bureau, 13 L C. C. 668, 677. §8. (2) Temporary Reduction. See Evidence, §64 (dd), (ee). (a) Ordinarily the advance of a rate for a short period followed by the restoration and maintenance of a lower rate formerly in force tends to raise a presumption of fact that the advanced rate was unreasonable. This rule may be modified where a special rate, not compensatory, is put in in order to "scalp" business on competitive traffic. Fairmont Creamery Co. v. C. B. & Q. R. R. Co., 22 L C. C. 252. (b) Complainants sought the suspen- sion of a new tariff of the Atlantic Coast Line providing increased rates on vehi- cles from Suffolk, Va., to North and South Carolina points. The proposed tariff restored class rates in effect prior to June, 1910, the present rate being about 10c lower,. One complainant was organized before 1910, and an- other since 1910. The former flourished 30 ADVANCED RATES, §9 (a)— §10 (c) under the higher rate. The latter chose a site on defendant's line because of the lower rate, and defendant was the only one of four carriers that reduced the former rate. Other roads yielded com petitive traffic to the defendant. Com peting points in North Carolina have rates equal to the class rates, and Frank- lin, Va., has the same class rates. Suffolk factories enjoy an advantage on inhounc 'rates on buggy parts. It appeared that the lower scale of rates was prepared under a mistake. HELD, the proposed tariff is justified considered solely fron^^ the point of view of the local situation but does not preclude the Commissioi from an investigation of vehicle rates in this section in general. In Re Advances on Vehicles, 22 I. C. C. 124, 127. §9. Concerted Action. See Infra, §16. (a) The Commission has uniformly held that it has no powers in the en- forcement of the Sherman Act, so that even if rates are advanced by agreement of carriers parties to a tariff association, that fact does not furnish a foundation upon which the Commission may base a finding that they are unlawful under the Interstate Commerce Act. Railroad Com- mission of Texas v. A. T. & S. F. Ry. Co.. 20 I.e. C. 463, 4G5. (aaj No presumption of unreasonable- ness arises from the theory that ad- vanced rates were established as a result of agreement between carriers. Railroad Commission of Tex. v. A. T. & S. F. Ry. Co., 20 I. C. C. 463, 465. (b) Although the primary considera- tion is the reasonableness of the rates involved, through whatever agency es- tablished, the practical unification of car riers in increasing their rates may and should properly be taken into account in determining whether an increase is in fact justified or is simply the result of a concerted effort to increase rates. Kiser Co. v. C. of Ga. Ry. Co., 17 I. C. C. 430, 440. (c) The fact that carriers conferred in making an advance of rates does not of itself necessarily establish the unrea- sonableness of the rates resulting in part from such conference. Chicago Lumbei & Coal Co. V. T. S. Ry. Co., IG I. C. C. 323, 332. §10. Economy of Management. See Reasonableness of Rates, §12. (a) No general advance in rates should be permitted until carriers have ex- hausted every reasonable effort toward economy in their business. The induce- ment to adopt methods of this kind which necessity creates in private occupations does not exist to the same extent in railroad operations. The Commission cannot escape the impression that rail- road operators have not given to this important subject the attention which it deserves. An examination of the statis- tics before the Commission in this case shows the widest divergence in the cost of doing the same thing upon different railroads. It appears, for example, that the cost of maintaining locomotives, per train mile for the year 1910, was 9.22 cents upon the B. & O. R. R., as com- pared with 6.15 cents upon the B. & M. R. R. It' is impossible to resist the con- viction that railroads have not in the past given suflScient attention to these details, and in the future they must be prepared to explain these apparent dif- ferences in their operating costs, and to show reasonable diligence. In Re Ad- vances in Rates — Eastern Case, 20 I. C, C. 243, 279. (b) Before any general advance in rates in OflEicial Classification territory can be permitted it must appear with reasonable 'certainty that carriers have exercised proper economy in tbe purchase of their supplies, in the ])ayment of their wages, and in the general conduct of their business. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 305. (c) A premium must be put upon eflaciency in the operation of American railroads. Rates cannot be increased with each new demand of labor or because of wasteful, corrupt or indif- ferent management. Nor should rates be reduced with each succeeding im- provement in method. Society should not take from the wisely managed rail- road the benefits which flow from the foresight, skill and planned co-operation of its working force. We may ruin our railroads by permitting them to im- pose each new burden of obligation upon the shipper. And we can make no less sure of their economic destruction by takings from them what is theirs by right of efficiency of operation — the elimination of false motion, of unneeded effort and the conservation of labor and ADVANCED RATES, §11 (a)— §13 (b) 31 material. The standard of rates must be so high that the needed carrier which serves its public with honest and reasonable effort may live. And yet rates should be still so much be- low the possible maximum as to give high and exceptional reward to the espe cially capable management, the well co ordinated force and plant. Advances ir. Rates— Western Case, 20 I. C. C. 307, 334. §11. Scientific IVIanagement. See Evidence, §17 (h). (a) In combating a general advance in rates in Official Classification territory th€ shippers contended that by the use of "scientific management" $300,000,000 annually could be saved by the proper application of these methods to the busi- ness of railroading in the United States The witness who testified to ^is stated that they were not in actual operation in over one-tenth of 1 per cent of all the manufacturing establishments in this country. HELD, the system is every where in an experimental stage and the Commission cannot find that the defend- ants could make good any part of their actual advances in wages by the intro duction of scientific management. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 279. §12. Branch Lines. §12. (1) Operation. (a) If the branch lines of a railroad are judiciously planned and constructed they should certainly be taken into ac- count in determining the value of the railroad, for, although they may not earn a large return upon the cost, considered as an independent proposition, they do add to the traffic and the earning power of the entire system; but it must be assumed that the new branches which have been constructed are good invest- ments, otherwise they would not have been built, and that they will add to the earnings of the property in propor- tion as they have added to its cost. No Increase in rate should be called for on this account. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 171. §12. (2) Purchase. See Evidence, §37; Reasonableness of Rates, §15. (a) If the New York Central Co. has exercised poor judgment in the taking on of subsidiary properties at the rentals which are paid, this ought not to per- manently impose upon the shipping pub- lic an extravagant rate if the leases are unprofitable. The Commission should indulge every reasonable presumption in favor of the good faith and the good judgment of* those who put together these properties, but certainly in the final analysis it cannot Impose upon the com- munity served by this system an unrea- sonable rate forever, simply because the managers of this property at some time in the past agreed to pay more for the use of a railroad than it was or is ac- tually worth. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 300. §13. Detriment to Shipper. (a) That advances made in rates would be severely felt by certain ship- pers is not sufficient reason for holding that such advances were not what they ought to be. L. & N. R. R. Co. v. I. C. C, 195 Fed. 541, 560. (aa) Defendants advanced the less- than-carload rate on candles from Helena, Mont., to points in the Coeur d'Alene dis- trict about 20c per 100 lbs., raising the former rates of about 55c. No evidence was offered to show that the cost of the service had increased or that the carriage of this particular article was not profit- able. These rates had been in effect for a period of years. Complainant estab- lished a business under them and has no means of reaching the market other than via defendants' line. HELD, defendants have not sustained the burden placed upon them by the statute to show that the new rates are just and reasonable; and they should establish for the future rates not in excess of those in effect previous to the advance in question. Reparation awarded. Perry & Co. v. N. P. Ry. Co., 23 I. C. C. 247. (b) Complainant contended that the rates on shipments of evaporated milk in less-than-carload lots in Central Freight Association territory was unreasonable. In 1909, on the showing that certain spe- cial rates on condensed milk were being made in trunk line territory, the defend- ants named a rate on less-than-carload shipments of 20 per cent less than third class. In June, 1911, upon the carriers in trunk line territory withdrawing their special rates, defendants restored the third class rates. The evidence disclosed that complainant's profit is small; that 32 ADVANCED RATES, §13 (c) — (e) its product is put up in cans, and is shipped in boxes that are strong, compact and easily handled; that canned peas which weigh more by the case and sell for less than evaporated milk, take 20 per cent less than third class rating. The advanced rates were more than on other similar articles. The Act of June 18, 1910, provides that "the burden of proof to show that the increased rate is just and reasonable shall be upon the common carrier." HELD, the present rates on evaporated milk in less-than- carloads are unreasonable, and rates should be established for the future not higher than those in effect prior to June 1, 1911. Whiteland Canning Co. v. P. C. C. & St. L. Ry. Co., 22 I. C. C. 261, 263; rehearing denied, 23 I. C. C. 92. (c) On Sept. 13, 1910, the S. P. Co. filed with the Commission its tariffs ad- vancing the rates on rough green fir lumber and lath from points in the Willamette Valley to San Francisco and bay points to $5 per ton. In a former proceeding, 14 I. C. C. 61, the Commis- sion had reduced these rates to $3.40 per ton from points upon the main line of the Southern Pacific, east of the Willa- mette River, and $3.65 per net ton on points upon its line west of the river, and it was upon the expiration of its order that the proposed advance was made. On the average haul from the points to which it applied the $3.40 rate produced a rate per ton mile of 5.48 mills. HELD, that the rough green lumber cannot move from the mills of complainants to market unless it receives a rate lower than $5 per ton, and that this rate in so far as it applies to rough green fir lumber and lath is unjust and unreasonable to the extent that it exceeds $3.50 per net ton of 2,000 lbs. from points upon the line of the defendant east of the Willamette River, except from the Wendling branch so-called, and that rates from the Wend ling branch and from stations upon the west bank of the Willamette River should not exceed $3.75 per net ton. This rate does not apply to Portland mills, which are further distant and where conditions are dissimilar. Oregon & Washington Lumber Mfrs. Ass'n v. S. P. Co., 21 L C. C. 389. (d) The Commission has never under- stood that it could dictate the policy of a carrier in the making of its rates in so far as there was just room for the exer- cise of a policy. It has several times ex- plicitly so declared. It has, however, be- lieved that it might consider what the policy of a carrier had been in deter- mining whether the rates resulting from a change in that policy were just and reasonable. It often happens that the very existence of an industry depends upon the rate accorded to it. If, now, a carrier has established a particular rate for the express purpose of enabling an industry to exist, and if upon the strength of that rate money has been Invested which must be destroyed if the rate is withdrawn, this fact might prop- erly be considered in passing upon the reasonableness of the proposed change in the rate. Such fact is not controlling but is one of the circumstances which may properly be kept in view. The Com- mission might in a proper case order the continued maintenance of a rate upon which the* investment of money had been induced, even though it would not in the first instance as an original proposition have directed the establishment of that rate. Oregon & Washington Lumber Mfrs. Ass'n v. S. P. Ry. Co., 21 I. C. C. 389. 394. (e) Defendants attempted to increase the rates on cream and condensed milk from points in Ohio and Indiana east to Pitts- burgh 50 per cent, making the rate 45c on ten-gallon cans for distances from 55 to 150 miles. Under the tariffs in force raw milk, cream and condensed milk were classified the same and took a rate of 30c on this sized can for this haul. The rate on raw milk was not advanced. The development of centralizers throughout Ohio and Indiana has taken place within the past five years. There was no special train service to Pittsburgh except that via the L. S. R. R. and P. & Lake Erie R.R. The latter carrier operated daily an emptj'- can special from Pittsburgh to Youngs- town, O., at which point a Lake Shore engine received the cars and continued to Dorset, O., and vicinity. Upon return of the loaded train to Youngstown the cars were placed in a regular passenger train of the P. & L. E. R. R. for Pittsburgh. The chief justification advanced by the car- riers is the greater value of cream and condensed milk compared with raw milk, and the development of the cream and condensed milk traffic. HELD, although general reference is made to the alleged increased cost of transportation of all commodities in recent years and to the gradual development of the cream and ADVANCED RATES, §13 (f) — (k) condensed milk business to a point where an advance is justified, aside from the special train service of the Ij. S. and P. & L. E. R. Rs. to Pittsburgh, the defend ant carriers have presented practically no specific evidence or data bearing upon the conditions surrounding the trans- portation of cream and condensed milk throughout the territory affected during the period of the present rates, and the operation of this train, considered both with reference to its character and earn- ings, does not justify in itself the pro- posed increase to Pittsburgh. As to the centralizers, the lack of supporting evi- dence is even more marked, the carriers in effect admitting that these tariffs, in- tended primarily for Pittsburgh, were not considered in their effect upon these shippers. The present relation of these rates has been maintained throughout this territory for nearly 30 years, busi- ness has adjusted itself accordingly, and ■I change therein should be sanctioned only upon a clear showing of transporta- tion conditions to justify it. Such evi- dence has not been presented by this record. In arriving at these conclusions it is not meant that carriers may not in any case charge higher rates upon cream and condensed milk than upon raw milk and other dairy products, depending upon the conditions necessary to be consid- ered from a transportation standpoint existing in the territory affected. The Commission merely holds that upon the facts presented in this specific case affect- ing these specific rates, the carriers have failed to sustain the burden of proof cast upon them by the statute, and the advance is denied. In Re Rates on Cream and Condensed Milk, 21 I. C. C. 522, 523. (f) Complainants asked the permanent suspension of proposed schedules of rates on lumber filed by the V. S. & P. R. R. tariff, I. C. C. No. 2679, which can- cels joint rates named in the tariff pre- ceding it from points on the C. R. I. & P. R. R. via Ruston, La., and the V. S. & P R. R, to points south of, on and north of the Ohio River. The Commis- sion found that the result of the existing rate adjustment was that the greater por- tion of the lumber traffic involved in the complaint moved over the Rock Island and not via Ruston. HELD, that the cancelation of the present joint rates via Ruston could not possibly have a detrimental effect on this large percent- age of complainant's business; that the effect of the cancelation of the rates via Ruston would tend to give the Rock Island transportation revenues which it was entitled to by reason of its mileage and geographical situation. Order of suspension vacated. In Re Proposed Rates on Lumber, 20 I. C. C. 575. (g) An advance in rates resulting from an increase in a minimum cannot be condemned merely because it affects a contract of sale based on the lower mini- mum in the absence of any evidence that the rate or minimum advanced is unrea- sonable. Barnum Iron Works v. C. C. C & St. L. Ry. Co., 18 I. C. C. 94, 95. (h) Where a plant has been established and money invested on the faith of cer- tain transportation rates and conditions, upon which the life of the plant depends, a carrier may not increase those rates and charges to the serious disadvantage of such investment without good cause or reason. Douglas & Co. v. C. R. I. & P. Ry. Co., 16 I. C. C. 232, 237. (i) Where a particular industry has grown up under rates voluntarily estab- lished and maintained by carriers, these rates cannot be advanced without con- sidering the effect upon that industry. Beatrice Creamery Co. v. I. C. R. R. Co., 15 I. C. C. 109, 128. (j) The Commission is bound to con- sider whether any contemplated read- justment of rates will result in serious impairment of business investments or undue depreciation in the revenues of the carrier. Black Mountain Coal Land Co. V. Southern Ry., 15 I. C. C. 286, 295. (k) Complainants, manufacturene and shippers of shingles, and forest ] rod- ucts consisting of cedar, fir, hemlock, spruce, etc., from points in Oregon, Washington. Idaho, Montana and British Columbia to St. Paul, Chicago, the Mis- sissippi River, Missouri River, southeast- ern Kansas, Denver, and to points taking rates in common with these cities and territories, attacked the increase in rates on those commodities, made effective Nov. 1, 1907. Under the old rates, many mills dependent upon rail transportation were constructed, and enormous capital was invested in connection with the lum- ber business at the points of origin in question. The old rates wer3 voluntarily 9Stablished by defendants. In recent years the cost of manufacturing lumber had greatly increased, the advance in both labor and material being 35 or 40 34 ADVANCED RATES, §13 (1) per cent. Prior to the increase attacked, the millmen's average profit per 1,000 ft. on all classes of lumber ranged from $1.60 to $2.80, and under the old sched- ule the lumbermen were very prosperous. The forest products of the Pacific Coast competed in all of the territory covered by the rates in controversy with yellow pine, cypress and white pine from other points of origin. The evidence indicated that complainants under the increase at- tacked would not be able to compete as formerly with other kinds of lumber from the other points of origin, and that they would not be able to dispose of their products in nearby markets without a fatal lowering of prices. Many of com- plainants' mills were obliged to close down shortly after the increase attacked went into effect, the apparent reason be- ing the change in rates. Defendant carriers were prospering on their general schedules of rates covering all commodi- ties. The expense of operating railways had increased greatly in the past few years, especially the cost of labor and materials. On a typical haul under the old rate the per ton mile revenue was 3.97 mills. For hauls of the same dis- tances, the defendants received a per ton mile revenue greatly in excess of that on shipments from yellow pine points of origin. Under the old rates, defendants received larger revenue per car than on shipments of canned goods, wool, hops and green hides. Defendants insisted that lumber did not bear its just propor- tion of the burden of rates in comparison with other commodities, but did not specify what other commodity was car- rying too high a rate. At the time the old rates were established, the empty car movement was eastbound and defend- ants testified that the rates were made low on that account. At the time of the increase in question the empty car move- ment was westbound. The predominat- ing westbound car movement could not. however, be charged entirely to the in- creased eastbound movement of lumber, but was largely due to the eastbound movement of ore and other products. HELD, the old rates from the points of origin in question to all points on and west of a line drawn from Pembina, N. D., southward through Grand Forks, N. D., Moorhead and Breckenridge, Minn., Sioux City and Council Bluffs, St. Joseph and Kansas City, and thence to Port Ar- thur, Tex., with certain exceptions, were reasonable and should be restored; that rates from the points of origin to points east of the line above mentioned might, with certain exceptions, be somewhat in- creased over the old rates, such increase not to exceed 5c; that the rates to points in Minnesota, east of the line mentioned, should be graded up from that line so as to reach the maximum increase at Minneapolis, St. Paul, Minnesota Trans- fer and Duluth; that the rates from the Missouri River crossings should be graded up and the maximum increase of 5c reached at the Mississippi River; that Chicago rates should apply to all points between the Mississippi River crossings. East Dubuque to East St. Louis, inclusive, and Chicago; and that the rates to St. Louis and common points should not exceed the rates to Chicago. Reparation awarded on the basis of the newly prescrib.ed rates except where such rates were lower than those in effect prior to the increase in question, (Knapp & Harlan, Comm'rs, dissenting,) Ore- gon & Washington Lumber Mfrs. Assn. V, U. P. R. R. Co., 14 I. C. C. 1, 19; re- hearing denied, 16 I. C. C. 465, 468; deci- sion of Commission sustained, S. P. Co. V. L C. C, 177 Fed. 963; I. C. C. v. U. P. R. R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308. (1) On April 18, 1907, the defendant. Southern Pacific Co., advanced the rate on rough green fir lumber and lath from points in the Willamette Valley to San Francisco from $3.10 to $5.00 per ton. Complainant shippers at these points at- tacked this advance. The former rate of $3.10 applied from all mills east of the Willamette River and all mills west of that river south of Corvallis. From mills north of Corvallis, upon the west bank, an additional charge of 25c per ton was imposed. This rate did not apply from Portland. Complainants demanded that the $3.10 rate be restored and be applied from all points on the east and west bank of the river and from Portland. Prior to 1908, and before the Southern Pacific combined with the Northern Pacific, lum- ber could not be shipped from the Willa- mette Valley to San Francisco on ac- count of the competition with lumber originating at Portland and shipped by a low water rate to San Francisco. In 1899, defendant Southern Pacific put in the $3.10 rate in order to develop the lum- ber industries in the Willamette Valley by affording a market at San Francisco. Under this rate a great number of mills were built and a large amount of capital invested in the Willamette Valley. In 1903. subsequent to the combination of ADVANCED RATES, §13 (m) 35 the Union Pacific and the Southern Pa- cific, the $3.10 rate which was at first applied from Portland was withdrawn from that point, and in 1904 it was with- drawn from the entire Willamette Valley, a rate of $5.00 being establishel instead. This increase in rates was greater than the profit which had been realized by lumbermen in the Willamette Valley upon shipments to San Francisco. At the time of the hearing, defendants indicated their willingness to extend to the Willamette Valley the same rates as applied from Portland on shipments to Colorado, Utah and other eastern destinations. While this ^•ould give complainants in the Willa- mette Valley an outlet for their higher grades of lumber, they would still be un- able to market their lower grades, being excluded from San Francisco by the $5.00 rate attacked. To continue the $5.00 rate would result in driving the smaller mill men among complainants out of busi- ness. Under the old rate the lumber from the Willamette Valley constituted a large percentage of the traflfic of the Southern Pacific, and in 1907 its net earnings were more than its gross earn- ings ten years before. The average dis- tance from mills in the Willamette Val- ley to San Francisco was 625 miles. Under the old $3.10 rate the yield was 5 mills per ton mile. For the entire haul the grade did not exceed one-haW of 1 per cent for 500 miles, and over a large portion of the line operating conditions were favorable, although for some 250 miles grades and curvatures were severe. Lumber originating north of Corvallis, upon the west bank, was formerly hauled by an independent line across the river to the Southern Pacific at a charge of 25c for a distance of some 15 miles. This independent line was absorbed by defend- ant. HELD, taking into account the de- velopment of complainants' lumber in- terests in reliance upon the former $3.10 rate, the increase to $5.00 was unreason- able; that a rate of $3.40 should be es- tablished from all mills in the Willamette Valley east of the river and from those west of the river, south of Corvallis, the increase over the $3.10 rate being per- missible in view of the fact that competi- tors at Portland would in time be com- pelled to pay higher prices for stumpage; that the $3.40 rate should not be ordered to apply to Portland since that point had a low rate by water, and that a rate 25c in excess of that applied to mills east of the river should continue to be applied to mills west of the river and north of Corvallis. (Knapp & Harlan, Comm'rs, dissenting.) Western Oregon Lumber Mfrs. Assn. v. S. P. Co., 14 L C. C. 61, 72; decision of Commission sustained, S. P. Co. v. L C. C, 177 Fed. 963; L C. C. v. U. P. R. R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308. (m) Complainant millers located at Buffalo attacked an increase by defend- ant carriers of one cent per 100 lbs. upon flour and other grain products from Buf- falo to New England points, and from Buffalo to New York City, and New York points. The differential from New York City to Boston points was two cents, and from New York City to Sherbrooke points in New England was one-half cent above the Boston differential. The Buffalo to New York rate before the advance was 10c per 100 lbs. Millers at Buffalo re- ceived their wheat from Duluth. In mak- ing the advance attacked, no change was made in the rates from Minneapolis and Duluth to Buffalo. Complainants at Buf- falo were in competition with millers at Minneapolis and Duluth. The 10c rate from Buffalo to New York had, before the advance, been in effeqt for many years. Complainants showed that defend- ants transported 'grain and its products for other persons for a much less rate per ton mile than would be yielded by the lie, or even the 10c, rate from Buf- falo to New York. The distance from Buffalo to New York is 400 miles, and the 10c rate would yield a revenue to de- fendants of 5 mills per ton mile. Under the export rate from Chicago to New York on wheat and flour, carriers were deriving.2.8 mills and 3 mills per ton mile, respectively. The domestic rate on ex-lake wheat, on corn and on oats from Buffalo to New York was 10c, 7 ll-12c and 6 2-3c per 100 lbs., respectively. Millers at Minneapolis objected to the restoration of the 10c rate from Buffalo to New York on the ground that the differential between Duluth and Minneapolis was 5c per 100 lbs., and that even under the advanced lie rate from Buffalo to New York, millers at Buffalo had an advantage of 4c per 100 lbs. over millers at Minneapolis. It appeared, however, that on account of the advan- tages of location, Minneapolis was, de- spite this differential, a better milling point than Duluth. HELD, following Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 L C. C 31, defendants in mak- ing an advance must consider the effect upon the business of Buffalo millers, and that the one cent advance was unjust and unreasonable, and the former 10c rate 36 ADVANCED RATES, §14 (a)— §15 (e) from Buffalo to New York should be re stored, and that the rates from Buffalo to Boston points and Sherbrooke points should correspondingly be reduced to 12c and 12i^c, respectively. Banner Milling Co. V. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 398, 401. §14. Benefit to Industry. (a) Carriers in Official Classification territory advanced all the class rates and about one-half the commodity rates. It was urged that to permit these ad- vances would induce larger expenditures in the maintenance of the roads, lead to extensions and improvements, which would in turn employ additional labor, put into circulation additional money and thereby improve general business con- ditions. It was also urged that the fa- cilities of railway supply houses could only be utilized to the most profitable extent in case additional railroads were constructed and additional equipment re- quired. HELD, the Commission must stand for the entire public, including the railways. It cannot accede to the mere wish of any class. It must recognize the just demand of all classes, and it must have in mind those who do not appear as well as those who are represented before it. The Commission ought not to impose upon the public rates otherwise unreasonable, for the mere purpose of temporarily providing business for the factories of railway supply houses, even though the effect might be to stimulate for the. time being other kinds of Indus tries. Just and reasonable rates should be allowed, but the Commission is not justified in permanently imposing rates unduly high in order that business con- ditions might be temporarily improved. In Re Advances in Rates — Eastern Case, -: > I. C. C. 243, 250, 251. §15. Standard for Judging Advance. See Relative Rates. (a) Since the present relation of rates must be maintained and since the same rate must be made by all lines, it follows that if any single route be required to maintain the present scale between New York and Chicago, no advance by any line can be made. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 272. (b) In determining the reasonableness of an advance in rates by all the railroads in Official Classification territory the Commission ought not to make the most opulent nor the poorest railroad the standard by which to measure the rea- sonableness of the rates. In this ter- ritory the Pennsylvania system, the New York Central lines and the Baltimore & Ohio may be taken as typical, and what- ever rate might reasonably be imposed upon these three systems must be held to be a reasonable charge for that serv- ice by all lines. Under rates reasonabU for these three systems there may be lines whose earnings will be extravagant, but that is their good fortune. There may be lines which cannot make suffi- cient earnings, but that is their mis- fortune. The Commission ought not to impose upon this territory, for the pur- pose of allowing defendants additional revenues, higher rates than are adequate to these three systems considered as a whole. In Re Advances in Rates — East- ern Case, 20 I. C. C. 243, 274. (c) In determining the reasonableness of rates advanced by the B. & O, R. R. the Commission holds that this road should be allowed to earn such an amount that the sum remaining after the pay- ment of fixed charges, including as a fixed charge the dividend upon the pre- ferred stock, should be equivalent to be- tween 7 and 8 per cent on the common stock. It should have sufficient earnings so that it may pay a dividend of 5 per cent upon its common stock and carry 2^ per cent to surplus, or pay 6 per cent upon its common stock and carry 1^^ per cent to surplus. This is upon the assumption that the capitalization does not exceed its actual value. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C 243, 289. (d) In determining whether railroads running west of Chicago should be per- mitted to increase some 200 commodity rates, the Commission bases its decision upon the profits of those roads which are typical and therefore considers the fig- ures of the Santa Fe, Burlington, C. & N. W., C. M. & St. P., Rock Island and C. & A. R. Rs. In Re Advances in Rates —Western Case, 20 I. C. C. 307, 324. (e) Defendants increased the class rates and many of the commodity rates from St. Louis to Texas common points. The Commission considers the M. K. & r. R. R., from a traffic standpoint, as the most typical for this territory, and analyzes its statistics put in evidence for additional revenue. It finds that for the purposes of computation it may be ADVANCED RATES, §16 (a) — (c) 37 conceded this carrier has a total appar- ent investment per mile of road of $38,- 993.16, and upon this valuation the net return is but 5.41 per cent. It also finds that, owing to legislation and various orders of the Commission, considerable of its future revenue is menaced. It finds that none of the defendants has been able to pay very much in the way of dividends, finding it difficult to even pay small dividends on their preferred stock. HELD, the commodity rates as a whole should not be ordered reduced, but that the present scale of class rates is unrea- sonable and discriminatory with the exception of the first class rate; the second class rate reduced 4c and de- fendants ordered to restore the prior rates in the other classes. Individual commodity rates may be attacked in the future, however. Reparation denied on present reduction. Railroad Commission of Texas v. A. T. & S. F. Ry. Co., 20 I. C. C. 463. §16. Uniformity of Advance. See Supra, §9. (a) Tariffs publishing a general ad- vance in rates may not be criticized in the absence of testimony showing that specific mistakes or blunders were made because all the rates were not advanced on a fixed percentage, or because car- riers in going over schedules selected particular commodities that seemed best able to stand a rate advance and others that seemed likely to move more freely under reduced rates and thus produce larger revenues. R. R. Commission of Texas v. A. T. & S. F. Ry. Co., 20 I. C. C. 463, 482, 483. (b) The Commission investigated pro- posed advances on coarse grain and wheat from southeastern South Dakota producing points to Omaha. HELD, a superficial examination of the rates dis- closes many inconsistencies which can- not be accounted for even on the basis of reflected competition as contended by the carriers. Rates from non-competitive points grade up too rapidly from junction and competitive points and non-com- petitive termini are not accorded equi- tably proportionate rates. The proposed advanced rates are unjust and unreason- able and the present rates are reduced to the basis of the rates prescribed by the Commission, the average reduction being about Ic per 100 lbs. In Re Ad- vances on Grain, 21 I. C. C. 22, 36, 38, 39. (c) Complainant attacked the reason- ableness of a change proposed to be made by the Southern Classification Commit- tee in the rating of locomotives and loco- motives and tenders, live or dead, on their own wheels. The proposed change substituted sixth class rates on live or dead locomotives for the previously exist- ing mileage rate of 35c a mile on loco- motives dead and 30 cents per mile on locomotives live. The same rate existed on locomotives live, except that an allow- ance of 50 per cent of the gross weight was made, and also provided that the locomotive must be accompanied by an attendant paying full passenger fare, and whose duty it is to keep all running parts well oiled and immediately report any trouble to the conductor of the train. HELD, that on account of the varying weights of locomotives it is not fair to tax the lighter locomotives at the same rate as the heavier equipment, for what would be a reasonable charge for a 200- ton locomotive manifestly would be un- reasonable for a locomotive weighing only 50 tons; that considering all the cir- cumstances connected with their trans- portation locomotives on their own wheels are much in the nature of an anomalous commodity particularly sus- ceptible to individual treatment; that both as a matter of equity and expedi- ency it is rare indeed that a flat ton mile rate can be prescribed. The great diversity in the characteristics of the objects transported as well as the kaleido- scopic succession of the conditions under which this transportation takes place combine to make such a rate when uni- versally applied both unreasonable and discriminatory. However, in so much as locomotives stand in a class by them- selves and present a rate problem in many respects different perhaps from any that has been heretofore brought to the at- tention of the Commission, under all the circumstances and accepting as a basis the per ton mile revenue of 5.83 mills arrived at by applying the present mile- age rate of 35c to the average gross weight of GO tons, a reasonable rate for the transportation of locomotives and locomotives and tenders dead on their own wheels in Southern Classification territory should not exceed the follow- ing rate per ton mile applied to the gross weight of locomotives and locomotives and tenders, distance not over 200 miles, rate per ton mile gross weight on loco- motives. 6 mills; over 200 and under 300 38 ADVANCED RATES, §17 (a) — (e) miles, miles, miles, 5.4 mills; miles, 5.2 mills; miles, 5.1 mills: 5.8 mills; over 300 and under 400 5.6 mills; over 400 and under 500 over 500 and under 600 over 600 and under 700 over 700 miles, 5 mills. In calculating the total charge the rate applicable to its respective zone should be applied for the distance in that zone only; the rate applicable to the final zone should not be applied to the entire haul. FURTHER HELD, no testimonv having From Phoenix to Wenden (A. & C.) Salome (A. & C.) Vicksburg (A. & C.) Prescott (S. F. P. & P.) Bouse (A. & C), these potatoes cannot be safely loaded to a greater weight. In Re Advances on Potatoes, 23 I. C. C. 69. (c) Defendants as of July 6, 1911, sought to increase the rates on barley, bran and wheat, from Phoenix, Ariz., to certain points on the Santa Fe, Pres- cott & Phoenix R. R. The increased rates were suspended. The following table shows the present and suspended rates : Present Suspended Rates. Rates. Distance. Miles. .. 103 .. 109 .. 119 .. 137 .. 138 Prescott & Eastern Junction (P. & E.) 143 Jerome Junction (S. F. P. & P.) 155 Cherry Creek (P. & E.) 157 Humboldt (P. & E.) 159 Huron (P. & E.) 163 Parket (A. & E.) 164 Rates in Oct., 1908. Cents. 30 30 31 20 31 20 22.5 26 27 29 31 Cents. 22.5 22.5 22.5 20 22.5 20 22.5 26 27 29 22.5 Cents. 25 25 26 28 28 29 30 30 30 31 31 been presented on the reasonableness of the advance over the present rate of 30c per mile on live locomotives, the burden of proof has not been met by the car- riers and the proposed change must be withdrawn. In Re Advances on Loco- motives and Tenders, 21 I. C. C. 103, 252. OF AD IV. REASONABLENESS VANCED RATES. See Proportional Rates, IV (g) ; Min- imums, §1 (aa); Reasonableness of Rates, §43 (a). §17. In General. (a) A railroad which has duly pub- lished ani advance in rates may charge a shipper the advanced rate despite a private agreement with him to carry goods at the rate in existence prior to the advance. First Trust & Savings Bank v. Southern Indiana Ry. Co., 195 Fed. 330, 334. (b) The proposed advanced minimum of 30,000 lbs. upon potatoes originating in Louisiana and Texas and applying from St. Louis, Mo., to points east of the Illinois-Indiana state line, is held unreasonable, • it appearing that the Texas and Louisiana potato is extremely perishable, possesses little keeping qual- ities and requires the exercise of great care in loading to insure the best possi- ble ventilation and the least possible pressure from the weight of one sack upon or against another. Minimum of 24,000 lbs. prescribed, it appearing that After a hearing and investigation the Commission finds all of the present and suspendede rates unreasonable and or- ders the establishment of the following as just and reasonable rates: Rates to be prescribed (carload Dis- minimum tance. 40,000 lbs.) Prom Phoenix to Miles. Cents. Wenden, Ariz 103 20 Salome, Ariz 109 20 Vicksburg, Ariz 119 20 Prescott, Ariz 137 22 Bouse, Ariz 138 22 Prescott and E. Jet.. Ariz.. 143 22 Jerome Junction, Ariz 155 24 Cherry Creek, Ariz 157 24 Humboldt, Ariz 159 24 Huron, Ariz 163 24 Parker, Ariz 164 24 Investigation and Suspension of Ad- vances in Rates for the Transportation of Barley, Bran and Wheat, 22 I. C. C. 216, 217. (d) A carrier having voluntarily put in a rate relatively low is not bound to maintain that rate indefinitely, but may withdraw a rate found by the Commis- sion to be unreasonably low. Fairmont Creamery Co. v. C. B. & Q. R. R. Co., 22 I. C. C. 252, 254. (e) Complainants attacked a pro- posed increase of rates upon lake coal originating in the West Virginia coal fields and destined to various ports on Lake Erie for transhipment by vessel beyond. In the West Virginia coal fields lie the Fairmont district in the north- ern portion of the state, the Kanawha ADVANCED RATES, §17 (e) 39 and Thacker districts farther south, and the New River and Pocahontas still farther south. The B. & O. R. R. serves the Fairmont district; the C. & O. Ry. with its connections, the Kanawha and New River districts; the Kanawha and Michigan Ry. with its connections, the Kanawha district; the N. & W. Ry. with its connections, the Pocahontas, Thacker and other districts lying be- tween Bliiefield and the Ohio River. The proposed increase was, from the Fairmont district (B. & O.), 96.75c to $1; from the Kanawha district (C. •& O. and K. & M.) and Thacker district (N. & W.), 97c to $1.0625; from the New River district (C. & O.) and Pocahontas district (N. & W.), $1.12 to $1.2175. The per ton mile earnings under the old rates of the N. & W. Ry. upon lake cargo coal originating between Bluefield and the Ohio River averaged 2.76 mills, the movement being from the mouth of the mine to the shipside. The proposed increase was attempted not because the old rates were unreasonably low in themselves, but because of a desire to increase the differential between the rates on lake coal from the West Vir- ginia fields, and those from the Ohio and Pennsylvania fields, and was made upon the complaint of shippers from the latter fields that the old rates were so low as to place the shippers from these lat- ter fields at a disadvantage. The N. & W. Ry., which took the lead in the proposed increase, was controlled through stock ownership by the Penn. R. R. Co., and there were indications that the latter railroad prompted the proposed incraese in order to prevent the cutting of its rate on traflBc from the Pennsylvania and Ohio fields. The C. & O. Ry. did nothing to justify the increase. The B. & O. R. R. merely pointed out that the proposed rate earned only 4.03 mills per ton for an average haul of 248 miles; and that it was less than that on commercial coal intended for commercial consump- tion at the lake ports. The K. & M. Ry. offered as a justification that the average proportional charge on coal destined beyond Toledo, its lake port, including all-rail and rail-and-lake routes, was $1.10 per ton. yielding 3.37 mills per ton mile, as compared with the proposed rate of $1.0625 yielding 3.2 mills; that the proposed rate was reasonable when compared with other "lake" rates from various com- petitive fields; that the rate to Toledo on commercial coal used in Toledo was $1.25, as compared with the proposed rate of $1.0625; and that said $1.10 and $1.25 rates had been in force for many years and had never been questioned. The serious burden of justification of the increased rate was left by the other carriers to the N. & W. Ry., which had the longest haul from the mines to the port and carried the lightest train loads and which was dominated by the railroad serving rival coal fields in Ohio and Pennsylvania. Defendant N. & W. Ry. sought to justify the proposed in- crease on the ground that under the old rates the coal trafl^c in question, while paying its transportation cost, full share of maintenance and overhead charges and practically its full share of interest upon bonded debt, did not meet its allottable share of dividend charges. The evidence indicated that 2.28 mills per ton mile was the average cost, in- cluding concentration, of all traflftc over the N. & W. Ry. and that the cost of mov- ing the lake coal in question approxi- mated 2 mills per ton mile between Bluefield and Columbus, O., where it was received from the N. & W. Ry. by connecting carriers. The cost of opera- tion and the earnings of the Bluefield- Columbus portion of the N. & W. Ry. were taken as a basis of estimate. As- suming that to this portion of the N. & W. Ry. a 48 per cent division of interest, taxes and dividends should, according to the testimony of some experts, be apportioned, one mill per ton mile of charges should be allowed in addition to the 2 mills required to cover cost. On the assumption that a 34 per cent division of interest, taxes and dividends should, according to the testimony of other experts, be charged to this por- tion of the N. & W. Ry., .75 mill in addition to the 2 mills required to cover cost should be allowed as charges. This estimate was based on the com- monly accepted rule that operating and maintenance expenses should amount to two-thirds of the earnings. Under the old rates defendant N. & W. Ry. re- ceived as a profit, over and above costs, 17.4 per cent on lake cargo coal, Blue- field to Columbus, while on all coal over the rest of its system it received under current rates only 16 per cent above cost. Defendant on coal shipped east- ward from Bluefield to Norfolk and des- tined beyond was receiving, under cur- rent rates, 3.187 mills with a cost of 40 ADVANCED RATES, §17 (f) 2.55 mills, so as to make the ratio of cost to revenue 82.6 per cent. The main line cost of all freight between Bluefield and Norfolk was 67.02 per cent of the revenue of 3.187 mills p^r ton mile received on coal from Blue- field to Norfolk, and for "beyond-the- capes," while the main line cost, Blue- field to Columbus, was 70 per cent of the lake cargo revenue of 2.76 mills per ton mile which was being earned by defendant under the old rates. While the rate per ton mile on the carriage of lake cargo coal under the old rates of the N. & W. Ry. appeared low, the real earnings of the car or train com- pared most favorably with the earnings upon the highest class of freight which the railroad carried. For example, on merchandise from Norfolk to Columbus, 707 miles, the revenue was per train, $1,237.70, per train mile, $1.75, per car mile, 5c; and from Norfolk to Bristol, 408 miles, the revenue was per train, $1,132.16, per train mile, $2.77, per car mile, $7.92. On lake cargo coal from Pocahontas to Columbus, under the old rates, the revenue was for a dis- tance of 330 miles, $1,222.76 per train, $3.02 per train mile, and 10.58c per car mile. Tested by per train mile and per train earnings, the old rates yielded on lake Sargo coal much larger revenues than were earned generally on the N. & W. Ry. and Penn. Co. systems and the roads of the United States taken as a whole. The summarized evidence indicated that the old rates, which were proposed to be increased, were lower than the local rates on coal to Sandusky (97c per Ion or $1.12 as against $1.25 or $1.45) ; were lower per ton mile than rates over the N. & W. Ry. to Hamp- ton Roads on "beyond-the-capes" coal (2.76 mills; 3.187 mills); were lower than the rates from the Ohio and Penn- sylvania fields to the Lakes on coal for transhipment (88c as against 97c or $1.12); were not as low per ton mile as the rates on "beyond-the-capes" coal made by the C. & O. Ry. (2.76 mills; 2.61 mills), nor as low as lake cargo coal via Cincinnati (2.17 mills); were not as low per ton mile as proportional rates of the I. C. R. R. and other carriers on coal going in'to the Northwest in competition with the West Virginia coal in question (2.6 mills) ; that the old rates yielded to the N. & W. Ry. substantial- ly as large a net revenue above cost as "beyond-the-capes" coal (17.47c as against 20c out of $1 in revenue) ; that they paid to the N. & W. Ry. as large a net revenue per ton above cost as did all coal on the system other than that carried over the Bluefield-Columbus line (17.47c as against 16c out of $1 in rev- enue) ; that under the old rates, since 1906, the traffic over the N. & W. Ry. had increased some 300 per cent and over all the carriers defendant about 170 per cent; and that the old rates paid the cost of transportation and maintenance, their full proportion of taxes and fixed charges, and made some contribution toward dividends. HELD, the defendants other than the N. & W. Ry. had presented no evidence to justify the proposed increase on their lines, and the advance should be prohibited; and that while a carrier was not entitled to increase its rates on a particular traffic simply because that traffic was not con- tributing its full share to dividends, and the N. & W. Ry. had not therefore justi- fied the increase on such ground, the N. & W. Ry., taking into view its right to a reasonable latitude of discretion in its rate-fixing policy, had met the bur- den of justifying the proposed increase, and the same should be allowed. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 624. (f) All the carriers in Official Classi- fication territory advanced all their class rates and about one-half their commod- ity rates. The Commission instituted an injiuiry whether the advanced rates were reasonable gind what was the justi- fication for publishing the general ad- vance. Voluminous testimony was in- troduced as to the expenses of the car- riers. The Commission examined the evidence as to the expenses the carriers were under, present and prospective, and compared them with the revenues for the year 1910. From a general review of the situation, the Commission HELD, the cost of supplies were not much ad- vanced; wages were not much in- creased; the demands of the public will continue to grow; traflfic will increase; but the same advantage may not accrue to carriers in this territory in the fu- ture as in the past; something should be expected from the introduction of additional economy, but perhaps not to the same extent as in the past; the net revenues for the year 1910 were the greatest in the history of the railroads; those revenues would still have been ample had the present rate scale been ADVANCED RATES, §17 (g)— §18 (1) (b) 41 applied to the operations of that year; that during the last 11 years rates have advanced, and that on all the facts on the record, the carriers are ordered to cancel their advanced tariffs on file and restore their former rates. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 285, 306. (g) While advances in rates may them- selves affect commodities of prime utility and daily necessity the rates themselves are the things for consideration, and the question for the Commission to deter- mine is whether such rates are in any respect in violation of the Act. The ques- tion in any case is not whether the rates under consideration are the result of a reduction or of an advance, but whether the rates themselves are unjust, unrea- sonable and unlawful. A rate that has been reduced may still be too high and one that has been advanced might con- ceivably be too low. Morgan Grain Co. V. A. C. L. R. R. Co., 19 I. C. C. 460, 467. (h) On carloads of anthracite coal from Chicago, 111., to Akron', Colo., a rate of $8 was assessed. Said rate yielded the defendant about 9 mills per mile, though defendants' rates to points in Nebraska and Wyoming, about the same distance from Chicago, yielded only from 5V2 to 8 mills per mile. The combination at time of shipment, through Haigler, Neb., was $7,189. The through rate from 1901 to 1907 was $6.70. De- fendant attempted to justify the in- creased rate on the ground that the rate from Chicago to Haigler, Neb., was established by the legislature of Ne- braska and was not sufficiently remuner- ative and was being contested. Defend- ant's combined rate through Haigler, prior to said legislation, was only $7.55. HELD, that the rate was unreasonable. Reparation awarded on basis of $7. Lan- ing-Harris Co. v. C. B. & Q. R. R. Co., 18 I. C. C. 11, 12. (i) Defendants raised the rates on cottonseed oil from Memphis to Louis- ville, Cincinnati and Chicago, from 12c to 14c, 15c to 17c and 18c to 20c, re- spectively. Complainant shippers at Memphis attacked the rates as unrea- sonable. The rates before the increase had been in force for many years. They were lower than rates from inland points, and originally had been made so on account of water competition, which had since disappeared. The advance at- tacked applied to all the territory east of the Mississippi River, but very few shippers joined in the complaint, appar- ently from the belief on their part that the advance was justified, or at least amounted to so little as to be unimpor- tant. The increase in rates attacked added to the cost per gallon of the oil only about 15-100 of a cent. Although cot- tonseed oil was not readily spoiled in tran- sit, still, because of arrangements be- tween the buyer aird the shipper, an ex- pedited service was required of the car- riers and furnished by them. Defend- ants paid the owners for the use of tank cars a rental of three-fourths of a cent per mile, which was assessed on the empty as well as on the loaded movements. The average value of the oil was about $2,500 per car. The in- creased rates yielded the carriers about $110 per car, or 7.5 mills per ton mile. The rate on a carload of cottonseed of the value of only $270 was practically as high as the increased rates on cotton- seed oil attacked. It appeared that Mem- phis had for many years enjoyed a lower rate than it was entitled to in comparison with other southern cities on account of the early water competi- tion. The increase in rates applied to those cities, so that Memphis was not placed thereby at a competitive disad- vantage. HELD, the rates attacked were not shown to be unreasonable. Mem- phis Cotton Oil Co. V. I. G. R. R. Co., 17 [. C. C. 313, 318-321. §18. Circumstances and Conditions. See Evidence, II. §18. (1) Low Receipts Per Ton IVIile. (a) The fact that a long established rate yields but small receipts per ton mile cannot justify its increase to such an extent or in such a manner as to be unjust to any shipper. Circumstances and conditions may be such that an in- crease in a particular rate may be un- reasonable, although after the increase the rate will yield low receipts per ton mile. Detroit Chemical Works v. N. C. Ry. Co., 13 I. C. C. 357, 362. (b) The reasonableness of a certain 'ncrease in rates on cement from Stroh, Ind., Toledo, Sandusky and Baybridge, O., to Detroit was in controversy. The car- riers sought to increase the rate from Stroh (which was considered the key to the adjustment throughout the cement- mills territory) from a 4c to a 5c rate per 100 lbs. basis. Th^ 5c rate would yield 42 ADVANCED RATES, §18 (1) (c)— §18 (8) (a) about 7 mills per ton per mile, incluuing an absorption of $3 per car switching service at Detroit. HELD, the advance not unreasonable and permitted to go into effect. In Re Advances on Cement Originating^ in Central Freight Associa- tion Territory, 22 I. C. C. 90, 92. (c) The complaints of several inter- related cases attack the reasonableness of a suspended advance of 3c per ton in interstate rates on bituminous coal from the Harrisburg field, in southern Illinois, to Chicago and points beyond, and of an advance of 7c per ton in the joint rate from said field to Milwaukee. The route of movement is through a portion of Indiana. The Harrisburg field has en- joyed a rate 3c lower than neighboring fields on account of a difference in the mining wage scale. A large portion of Harrisburg coal is consumed by various carriers, leaving slack and screinings as the major portion of the coal seeking market in Chicago and Milwaukee. The differential favoring Harrisburg has never been acquiesced in by the other coal fields and the suspended 3c advance was intended to remove it. The wage scale has now been equalized. Rates from Illi- nois fields to Chicago are adjusted with relation to one another, regard being had to distance, competitive conditions and the quality of the coal. The Illinois com- mission investigated and allowed a 7c advance on intrastate hauls. The Inter- state Commerce Commission declined > suspend its operation in so far as it ap- plied to the joint rate to Milwaukee. The general rule of the carriers is to make the proportional rate 10c lower than the local rate to Chicago. In 1910 the rates from Williamson and Franklin counties, neighboring fields, yielded 3.2 and 2.9 mills per ton mile for the local and pro- portional rates. At the same time the rates from Harrisburg district yielded 2.9 and 2.6 mills per ton mile. After the advance of 7c in 1910 the rates from the Williamson-Franklin districts yielded 3.4 and 3.1 mills per ton mile. The Har- risburg rates yielded ton-mile earnings of 3.2 and 2.8 mills. The suspended ad- vance on Harrisburg rates would yield ton-mile earnings of 3.3 and 2.9 mills. These ton-mile rates are figured, deduct- ing terminal charges or other expense to the carriers. Harrisburg coal competes at Chicago and Milwaukee with Appa- lachian coal, which moves by rail-and- lake transportation at a much lower total rate. This rate does not embrace the same services aj the Harrisburg all- rail rates, but the cost of unloading the vessel, loading the cars and switching at the dock must be advert to the total cost. Harrisburg is a superior Illinois coal, but is inferior to eastern coal. Illinois coal fields nearer Chicago have rates compara- tively higher than the Harrisburg rate. HELD, no reasons are shown why Ha^' risburg should be entitled to a lower rate than Williamson-Franklin fields, nor is the proposed rate unrrasonable itself. The defendants have sustained the bur- den of proving the propriety of the present and proposed increase. In Re Advances on Bituminous Coal, 22 I. C C. 341, 345. §18. (2) Water Competition. (a) Complainant attacked the rate of 6c per 100 lbs. on beer, C. L., Waukesha, Wis., to Chicago, 111., a distance of 102 miles. For 11 years or more prior to May 16, 1910, the rate on beer from Waukesha to Chicago was 5c per 100 lbs. On that date the rate was advanced to 6c per 100 lbs., and the rate from Mil- waukee, Wis., to Chicago to 4c per 100 lbs. Milwaukee is about the same dis- tance from Chicago as Waukesha, but is a lake port where water competition ex- ists. HELD, that a difference of 50 per cent in the rates from two producing and competing points located as are Mil- wauKee and Waukesha is somewhat ex- cessive, and that the rate from Waukesha should not exceed a rate of 5c per 100 lbs. Reparation awarded. Milwau :ee- Waukesha Brewing Co. v. C. & N. W. Ry. Co., 21 I. C. C. 472. §18. (3) Heavy and Uniform Tonnage. (a) Complainants, jobbers of boots and shoes at Atlanta, Ga., attacked the advanced rail and water rates from Bos- ton and New York to Atlanta, as result- ing in an adjustment unduly preferential to Lynchburg, Va., and St. Louis, Mo. Complainants sold their goods to dealers In Georgia, Florida, South Carolina, Ala- bama and Mississippi. The combination of the rates from Boston to Lynchburg, thence to points in said states, was less than that from Boston to Atlanta and thence to the same points. Complainants contended that this gave to Lynchburg jobbers an undue advantage. The per ton mile earnings from Boston to Atlanta via Savannah were 28.6 mills; via Nor- folk, 19 mills; from Boston to Lynch- burg, 18 mills. It appeared that the Lynchburg rates were influenced by the proximity of lines reaching Lynchburg ADVANCED RATES, §18 (4) (a)— §18 (5) (a) 43 to eastern trunk lines, which took gen- (srally lower rates than applied in the sjouth. The tonnage in boots and shoes from Boston and New York to Atlanta , )vas very heavy and evenly distributed Ihroughout the year. Prior to the es- tablishment of the rates attacked, the car- riers had voluntarily established lower carload and any-quantity rates than those in question. Carriers serving Chi- cago. St. Louis and other cities in that territory competed with eastern carriers in hauling boots and shoes to Atlanta. On account of this competition, the car- riers finally held a series of conferences resulting in the establishment of the rates attacked. HELD, the rate of $1.05 from Boston and New York to Atlanta should be reduced to 95c. Riser Co, v. C. of Ga, Ry, Co., 17 L C. C. 430, 441. §18. (4) Low-Grade Commodity. (a) The advance -in rates on staves, hoops and heading from various stations on the line of the St. L. L M. & S, Ry. in Arkansas and southern Missouri to certain points on the Atchafalaya River and Bayou Teche, in Louisiana, from 18c to 24c per 100 lbs, is not shown by defendants to have been justified, and the increase is held to be unreasonable, it appearing that the 18c rate was nec- essary to enable this traflftc to move and such rate not appearing to be un- duly low. In Re Advances on Staves and Other Articles, 23 I, C. C. 382. (aa) The Santa Fe, Frisco, U. P., D. R. & G., M. K. & T. and M. P. R. Rs. advanced the rates on cement from points in what is known as the gas belt, which lies south of Kansas City and embraces such points as lola and Cha- nute, and as far north as Sugar Creek, Mo., in the neighborhood of Kansas City, and as far south as Dewey, Okla., to Colorado common points, Denver to Trinidad, inclusive, and also from the gas belt to points in Nebraska, Kansas and Wyoming. The increases ranged from i/^c to 5c per 100 lbs. The average loading of cement from the gas belt is over 50,000 lbs. per car, average mini- mum weight 38,000 lbs. provided in the tariff. The average receipts of all freight per ton mile of the defendants were from ,789c to 1.054c. The earnings on cement under the present tariff ranged from 5.3 mills per ton mile to 13.1 mills, and under the proposed advances would be from 6 mills to 14 mills per ton mile. HELD, that cement is one of the lowest grade commodities, from a transporta- tion standpoint, there is, and from the evidence it appears that the movement from the gas belt to the territory in- volved in the present proceeding bears its proportion of the transportation bur- den of the carrier. Carriers ordered to withdraw tariffs carrying the proposed advances. In Re Investigation of Ad- vances in Rates on Cement, 20 I. C. C. 588. (b) An increase in rates of 25 per cent upon a low-grade commodity is not justified because of a slight increase in the ratio of expenses to earnings. Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 18 L C. C. 596, 598. §18. (5) Ratio of Rate to Value. See Classification, §11. (a) Defendants raised the rates on cottonseed oil from Memphis to Louis- ville, Cincinnati and Chicago from 12 to 14, 15 tX) 17 and 18 to 20c, respectively. Complainant shippers at Memphis at- tacked the rates as unreasonable. The rates before the increase had been in force for many years. They were lower than rates from inland points, and origi- nally had been made so on account of water competition, which had since dis- appeared. The advance attacked applied to all the territory east of the Mississippi River, but very few shippers joined in the complaint, apparently from the belief on their part that the advance was justified, or at least amounted to so little as to be unimportant. The increase in rates at- tacked added to the cost per gallon of the oil only about fifteen one-hundredths of a cent. Although cottonseed oil was not readily spoiled in transit, still, be- cause of arrangements between the buyer and the shipper, an expedited service was required of the carriers and fur- nished by them. Defendants paid the owners for the use of tank cars a rental of three-fourths of a cent per mile, which was assessed on the empty as well as the loaded movements. The average value of the oil was about $2,500 per car. The increased rates yielded the carriers about $110 per car or 7.5 mills per ton mile. The rate on a carload of cottonseed of the value of only $270 was practically as high as the increased rates on cotton- seed oil attacked. It appeared that Mem- phis had for many years enjoyed a lower rate than it was entitled to in comparison with other southern cities on account of the early water competition at Memphis. 44 ADVANCED RATES, §18 (6) (a)— §18 (8) (a) The increase in rates applied to these cities, so that Memphis was not placed thereby at a competitive disadvantage. HELD, the rates attacked were not shown to be unreasonable. Memphis Cotton Oil Co. V. I. C. R. R. Co., 17 I. C. C. 313, 318-321. §18. (6) To Gain Import Duty. See Evidence, §26. (a) Complainant attacked the ad- vanced rate on lemons, southern Cali- fornia to the east, of $1.15 per 100 lbs. Lemons are produced mainly in two lo- calities: Sicily, which in 1909 shipped 69,000 carloads, and southern California, which shipped 6,000 carloads. The United States consumed approximately 12,000 carloads, of which one-half were of foreign growth. A box of lemons weighs 84 lbs., and can be transported from Sicily to New York at from 30 to 35c, and from thence to Chicago for 33.6c more. Sicilian laborers get from 40 to 60 cents per day, while in California they get from $1.75 to $2.00 per day. Even with a protective duty of $1.00 per 100 lbs., the American grower cannot compete with the Sicilian. In 1901 the rate from California was $1.25 per 100 lbs. In the winter of 1902 a "relief" rate of $1.00 was made effective to permit the California grower to compete. This rate was renewed in the winter of 1903. The general freight agent of the Santa Fe lines wrote to his superior traffic officer to the effect that the $1.00 rate should be given the California grower. The last tariff act increased the duty on lemons from $1.00 to $1.50 per 100 lbs., and com- plainants asserted this was the reason for the increase in freight rates. HELD, that upon consideration of all the facts, the lemon rate should not exceed $l.uO per 100 lbs. from southern California to eastern destinations. Arlington Heights Fruit Exchange v. S. P. Co.. 19 I. C. C. 148, 153 ; order of Commission temporarily enjoined, A. T. & S. F. Ry. Co. v. I. C. C, 182 Fed. 189; decision of Commission re- versed, A. T. & S. F. Ry. Co. v. U. S., 190 Fed. 591. §18. (7) Rates In Like Territory. See Comparative Rates. (a) In Hood & Sons v. Delaware & Hudson Co., 17 I. C. C. 15, the Commis- sion found that for the transportation of fluid milk from Poultney, Rupert and West Pawlett, Vt., and Cambridge, Gran- ville, Middle Granville, Salem and Shus- han, N. Y., to Eagle Bridge, N. Y., des- tined to Boston, Mass., a rate of $16 per car of 250 cans of 40 quarts each, and QV2C per can for any excess over 250 cans, was a reasonable carload rate. The defendant sought to advance the rate to 9c per can of 40 quarts each based on a car minimum of 250 cans, excess at the same rate per can on Boston shipments of milk from the points mentioned to Eagle Bridge. From Poultney to Boston the distance is 213 miles. The distance from Eagle Bridge to New York via Al- bany is 290 miles. The carload rate to New York was 28.8c per can of 40 quarts. For the haul from Eagle Bridge to Al- bany, a distance of about 142 miles, de- fendant got 50 per cent of the through rate to New York, or 14.4c per can of 40 quarts, which is equivalent to 3.6 mills per quart. For the 45 miles from Eagle Bridge to Poultney it is equivalent to 1.13 mills per quart, and deducting the ter- minal charges on New York milk of 2c per 100 lbs. would leave a net rate of about 1.07 mills per quart. Under the proposed advance the rate on complain- ant's milk would be equivalent to 2.25 mills per quart from Poultney and inter- mediate points to Eagle Bridge. Be- tween Providence, R. I., and Boston, Mass., a distance of 45 miles over the N. Y. N. H. & H. R. R., the rate was $17.24 per car, the equivalent of 6.9c per can, or 1.7 mills per quart. Other instances in nearby territory were similar. The ad- vanced rate proposed was $22.50 per car, or 2.25 mills per quart. HELD, that the proposed increased rate is unreasonable and unjust but that there is probable justification for an advance in the pres- ent rate to $17.25 per car of 250 cans of 40 quarts each, and 7c per can for any excess over 250 cans. In Re Advances by the D. & H. Co. on Fluid Milk, 23 I. C. C. 500. (b) It not appearing that a proposed advanced rate from Portland, Colo., to Denver of TV2C per 100 lbs. on cement is too high when compared with a rate of a same amount from lola, Kan., to Kansas City, the former haul being the longer and more difficult, the proposed new rate is permitted to go into effect. In Re Advances on Cement, 20 I. C. C. 588, 597. §18. (8) Circuitous Route. See Througli Routes and Joint Rates, §6. (a) Complainant attacked the reason- ableness of an advance in rates on staves ADVANCED RATES, §18 (9) (a)— §19 (a) 45 and heading which move at the hardwood lumber rate from Arkansas producing points to Cairo and Thebes, 111., as af- fecting the total through charge to points beyond. Via the Frisco R. R. the typical rate from McNab, Ark., effective March 1, 1907, was 13c per 100 lbs.; effective Aug. 14, 1908, 14y2c; effective Dec. 10, 1908, 16c; effective Sept. 15, 1909,- 14c; effective July 5, 1910, 16c, where it has remained. The haul is 710 miles to Thebes, revenue per ton mile, 4.5 mills. Via the Iron Mountain R. R. the typical rate was from Fulton, Ark. This rate was 13c, effective March 1, 1907; UV2C, effect- ive July 28, 1908; 16c, effective Dec. 12, 1908; 14c, effective Aug. 19, 1909; 16c, effective Aug. 4, 1910, the current rate. The distance to Thebes is 383 miles, 'rev- enue per ton mile 8.3 mills. The ship- ments involved moved between Dec. 12, 1908, and the dates when the lower rates were restored from the respective points of origin. Reparation was asked on basis of the rates in effect to Thebes, immedi- ately previous and subsequent to the period referred to; i. e., on basis of 14c from Fulton and McNab. The Iron Moun- tain R. R. is the short line to Thebes, but the Frisco in order to retain the en- tire haul of the traffic carries it by a circuitous route making a haul almost twice as long as on the competitive line. HELD, it is obvious that the Frisco R. R. cannot subject McNab to the payment of unreasonable rates merely in order that traffic may be carried over its own lines by an unreasonably circuitous route, whereas another reasonable route and one about half as long could be had by a joint rate over the Frisco and Iron Moun- tain R. Rs. However, the rates charged are not so high on their face as to appear unreasonable. They are not shown to be out of line with rates from other Arkan- sas points and do not afford greater revenue than rates from Arkansas points prescribed by the Commission in other cases. Complaint dismissed. Winter- botham & Sons v. M. P. Ry. Co., 21 1. C. C. 266. §18. (9) Use of Commodity. See Classification, §10. (a) Complainants attacked an advance of 331/4 per cent in rates on stock cattle and sheep throughout western states to and beyond the Missouri River. For 25 years previously to the advance there had been a rate on stockers and feeders of 75 per cent of the rate on market cattle. HELD, that from the standpoint of value of stockers and feeders as compared with market cattle, the character and cost of the service of the two, the heavy claims to which railroads are subject for shrink- age and fall in price from delays in reach- ing markets, the fact that carriers are Insured a second haul to market on the fat cattle from the point where they are fed, and the value of the service to the shipper, the 75 per cent rate is reason- able compared with the service and rate on market cattle. It is not contrary to the Commission's rulings for defendants to make rates on the use to which cattle are put where there is a substantial dissimi- larity in the transportation service and of the value of the service to the shipper. In Re Advances on Stock Cattle and Sheep, 23 I. C. C. 7, 12. §18. (10) increased Divisions. See Divisions, (a) These proceedings involved proposed increased class rates from St. Paul and Duluth, Minn., to Buffalo, Pittsburgh and other points in Central Freight Associa- tion territory. Commodities chiefly af- fected were butter and eggs, less than carloads. Proposed increase of 10, 10, 10, 4, 1.5c on classes 1, 2, 3, 4, 5, respectively. Reason assigned by defendants was that western carriers were being deprived of revenue on shipments to New York, on account of billing locally to Buffalo and reconsigning. No joint rate existed from St. Paul to New York. Combination based on Chicago was $1.15; based on Buffalo it was $1.12. Western carriers made 10c more on combinations based on Chicago than on those based on Buffalo. Rate to Buffalo was lon^ standing. HELD, that since the advance in the Buffalo rate was proposed not because the Buffalo rate was too low, but be- cause on shipments going to New York City and rebilled at Buffalo, the western carriers lose revenue to which they would be entitled were the shipments billed through, the question was one of divisions and not of increase of rates, and the proposed increase was unreasonable. In Re Advances in Class Rates, 22 I. C. C. 338. V. DISCRIMINATION THROUGH AD- VANCE. §19. In General. (a) Rates on cotton from Texas pro- ducing points are, and for some time have been, the same to New Orleans and 46 ADVANCED RATES, §19 (b)— (d) to Texas ports. Upon complaint to tLe Texas commission that this traffic was being diverted from Texas ports to New Orleans, the Texas commission proposed to reduce the rates to the Texas ports if the alleged discrimination were not re- moved. The average haul on cotton from Texas points to Galveston is 225 miles; to New Orleans, 488 miles. On account of the contemplated action of the Texas commission, the carriers filed increased rates to New Orleans (63c), which, upon complaint, were suspended by the Inter- state Commerce Commission. In the year 1910-11, under the equr lity of rates to New Orleans and Galveston, New Or- leans received but 150,392 bales out of a production of 3,258,651 bales of cotton in Texas. HELD, the rates to Texas por i not being alleged to be unreasonable, defendants have sustained the burden cast upon them by the statute, and the proposed increased rates to New Orleans are not unreasonable. Further, the ex- port rates to Galveston being subject to the federal Act it is clearly within the right of the carriers in the absence of an order of the Interstate Commerce Com- mission to the contrary to continue the present parity of export rates from Texas points to New Orleans and Texas ports. In Re Advances on Cotton and Cotton Linters, 23 I. C. C. 404, 411. (b) Under an arrangement between defendants in force for a number of years prior to July 31, 1899, Newport News and Norfolk. Va., took equal freight rates to and from common points in Associated Railways territory and in Southeastern Freight Association territory. Because of a disagreement as to divisions of the joint rates, the southern lines withdrew from the arrangement, and since that time Newport News rates to and from such common points have been on a higher basis than Norfolk rates to and from the same points. As compared with Norfolk, Newport News is placed in a po- sition of material disadvantage. As to natural advantages, Newport News and Norfolk are practically on the same foot- ing. The southern lines do not extend to Newport News, but by means of their connection with other defendant lines they participate in Newport News traffic to and from the south, maintain through routes for the movement of such traffic, and in effect control the rates applicable thereto. HELD, that the present rate situation is unjustly discriminr^ory against and unduly prejudicial to New- port News; that the southern carriers cannot escape responsibility for such discrimination merely because their rails do not extend to Newport News; that Newport News is entitled to the same rates as Norfolk to and from com- mon points on defendant's lines in the territories referred to, not within 150 miles of Norfolk. Chamber of Commerce of Newport News v. S. Ry. Co., 23 I. C. C. 345. (c) In a prior decision (The Okla- homa case, 22 I. C. C. 160) the Commis- sion approved certain mileage rates on fresh meats and packing-house products from Wichita, Oklahoma City and Fort Worth, to various points, including points in Arkansas and that part of Louisiana west of the Mississippi River, and the carriers proceeded to file such schedules, but before they became effective, pack- ing-house interests at Wichita protested, and the schedules were suspended. It appeared that in many cases the mileage scale advanced the rates from Wichita, Oklahoma City and Fort Worth to points in Arkansas and Louisiana, and placed such cities at substantial disadvantage as compared with Kansas City and St. Louis and disturbed the competitive re- lationship existing between these various points. HELD, that discrimination can only be removed by applying from Kan- sas City and St. Louis into Louisiana and Arkansas the same mileage scale which has been found reasonable from Wichita, Oklahoma City and Fort Worth, which will result in advancing the rates from Kansas City and St. Louis to a proper relation with those from the other points. However, the Commission has no authority to compel the advance of a rate for the purpose of removing dis- crimination, and it is therefore recom- mended that the carriers adopt the mile- age scale prescribed in the Oklahoma case to points in Louisiana and Arkansas from St. Louis. Kansas City, Wichita, Oklahoma City and Fort Worth by proper tariffs. In Re Transportation of Fresh Meats, 23 I. C. C. 652, 655. (d) Certain milling points in central and eastern Wisconsin have been grouped with Chicago and Milwaukee in the pro- portional rates on grain and grain prod- ucts from Kansas City, Omaha and Coun- cil Bluffs. On May 15, 1911, the propor- tional rates to these Wisconsin points were withdrawn, which raised the rate from Omaha and Council Bluffs from 12c to the local rate of 15%c and to 14%c ADVANCED RATES, §19 (dd) — (e) 47 from Kansas City. The proportional rates were cancelled because complaint had been made that the application of a proportional rate of 12c from the Mis- souri River to Wisconsin points, a distance of 700 miles, while the rate to Duluth was 15c for a distance of 600 miles, was a discrimination against the millers of Duluth. The 12c proportional rate to Chi- cago and Milwaukee resulted to some ex- tent from the competition of the Mem- phis and St. Louis gateways, which did not apply to the Wisconsin territory in question. Chicago was not a competitor of complainants who were millers in cen- tral and eastern Wisconsin. While Chi- cago and Milwaukee millers might receive grain on the 12c proportional rate, it could be cleaned and milled only on the basis of the 15%c rate with the privilege of shipping the product to points beyond taking the same rate. Complainants ex- pressly admitted the reasonableness of the local rates to Wisconsin points, but com- plained of the discrimination against them by the lower proportional rates to Chi- cago and IMilwaukee. HELD, if the tran sit privilege is not abused at Chicago and Milwaukee there is no discrimination against the Wisconsin millers based on the proportional rates to these two points, because it will cost millers at these points the same to compete with the millers in central and eastern Wisconsin as those millers pay. The admission of complainants that they do not contend that the present charges a^e unreason- able relieves defendants of the burden of justifying them, and therefore, there be- ing no discrimination apparent, and no unreasonable rate involved, the complaint must be dismissed. Wisconsin Stater Millers' Ass'n v. C. M. & St. P. Ry. Co., 23 I. C. C. 494. (dd) Carriers had maintained for nearly 30 years the same rates on cream and condensed milk as on raw milk from Ohio and Indiana dairy points to Pittsburgh. They advanced the rates 50 per cent on only condensed milk and cream on the ground that upon the aver- age cream is five times more valuable than whole milk, and condensed milk three times more valuable. HELD, that the value of an article of freight is but one of many factors to be considered, and especially is this true where, as in the present case, there is no additional cost or extra service rendered in the transportation of the article of greater value. The record discloses that the claims for loss of cream and condensed milk are practically insignificant. It may also be suggested that regardless of whether for transportation purposes the classification of dairy products should be restricted to the primary one of whole milk and cream, the contention strongly urged by complainants that a correspondingly lower rate should ob- tain on skimmed milk, buttermilk and other dairy products of less value, suggests the importance of proceeding carefully in the disturbance of the existing basis. The present relation of these rates has been maintained throughout this territory for nearly 30 years. Busi- ness has adjusted itself accordingly and a change therein should be sanctioned only upon a clear showing of transporta- tion conditions to justify it. Such evi- dence has not been presented by this record. In arriving at these conclusions it is not meant that carriers may not in any case charge higher rates upon cream and condensed milk than upon raw milk and other dairy products, de- pending upon the conditions necessary to be considered from a transportation standpoint existing in the territory af- fected. Whether in a given case such difference in rate between the respective commodities, if justified, should be as much as 50 per cent is not now decided. The conclusions herein are based wholly upon the particular facts and conditions disclosed by the present record as affect- ing these specific rates, just as other cases of a similar nature rfiust be de- cided upon their individual facts and conditions. It is merely held that upon the facts presented in this case the carriers have failed to sustain the bur- den of proof cast upoi them by the statute. In Re Rates on Cream and Condensed Milk, 21 I. C. C. 522, 527, 528. (e) Davenport is on the west bank of the Mississippi River opposite Rock Island and Moline. Prior to Oct. 1, 1907, the rate on cypress lumber from Minot and Rome, Miss., to each of these cities was 21c per 100 lbs. On that date the rate to Davenport was increased to 23c, but to Rock Island and Moline was not advanced. HELD, that Davenport should be grouped with Rock Island and Moline for rate-making purposes; that the ad- vanced rate was unlawful to the extent that it was higher than the rate contem- poraneously enforced from the same points to Rock Island and Moline and 48 ADVANCED RATES, §19 (ee)— §20 (d) that reparation should • be awarded. Davenport Commercial Club v. Y. & M. V. R. R. Co., 20 I. C. C. 19. (ee) Complainant jobbers of boots and shoes at Atlanta, Ga., attacked the rail and water rates from Boston and New York to Atlanta, as resulting in an adjustment unduly preferential to Lynchburg, Va., and St. Louis, Mo. Com- plainants sold their goods to dealers in Georgia, Florida, South Carolina, Ala- bama and Mississippi. The combination of the rates from Boston to LyncLburp-, thence to points in said states, was less than +hat from Boston to Atlanta, and thence to the same points. Complainants cor tended that tais gave to Lynchburg jobbers an undue advantage. The per ton mile earnings from Boston to At- lanta via Savannah were 28.6 mills; via Norfolk, 19 mills; from Boston to Lynch- burg, 18 mills. It appeared that the Lynchburg rates were influenced by the proximity of lines reaching Lynchburg to eastern trunk lines which took gen- erally lower rates than applied in the South. The tonnage in boots and shoes from Boston and New York to Atlanta was very heavy and evenly distributed throughout the year. Prior to the estab- lishment of the rates attacked the car- riers had voluntarily established lower carload and any-quantity rates than those in question. Carriers serving Chi cago, St. Louis and other cities in that territory competed with eastern carriers in hauling boots and shoes to Atlanta On account of this competition thf. carriers finally held a series of confer ences resulting in the establishment o' the rates attacked. HELD, the rate o' $1.05 from Boston and New York to At lanta should be reduced to 95c. Kisei Co. V. Central of Georgia Ry. Co., 17 I C. C. 430, 441. (f) Where an industry has been re quired to pay for a long period of time rates of freight on raw material which bear certain relations to rates charged to competitors at other points, a marke«I change in such relations of rates in favor of competing industries cannot be made without an attendant presumption of un due discrimination. Detroit Chemical Works V. N. C. Ry. Co., 13 I. C. C. 357. 362. VI. REMEDIES AND PROCEDURE. §20. Injunctions. See Courts, §6 (i), (j), (k), §9 (k), (I), (n), §10 (a), §11 (y); Demur- rage, §1 (c). (a) Where the case in which a tem- porary writ of injunction is asked pre- sents questions of grave importance and difliculty, and it appears from the plead- ings and affidavits presented upon the hearing for the temporary writ that great damage will result to the complainant if the writ is not granted and he shall be finally successful in the litigation, and, on the other hand, that the granting of the writ will not cause serious damage to the defendant as compared with the damage which would result to the com- plainant if the same were not granted, a court of equity will unhesitatingly, in or- der to maintain the present status, issue a temporary writ of injunction. Nashville Grain Exch. v. U. S., 191 Fed. 37, 40. (b) Defendants filed with the Inter- state Commerce Commission tariffs con- taining an increase of rates a day or two prior to a bill filed by shippers to enjoin the putting into effect of the increase of rates. At the time of filing the bill for injunction the tariffs containing the in- crease had not been posted at the sta- tions of defendants. HELD, under Sec- tions 9, 13, 15, 16, 22 and 23 of the Act, the United States Circuit Court had no juris- diction to enjoin said increase in rates. Wickwire Steel Co. v. N. Y. C. & H. R. R. R. Co., 181 Fed. 316, 318. (c) The United States courts have no original jurisdiction to enjoin the putting into effect of a proposed schedule of rates alleged to be unreasonable, in advance of a determination of that question by the Interstate Commerce Commission, since under the Interstate Commerce Act as amended June 29, 1906, the question of the unreasonableness or discrimination of a rate is, in the first instance, vested solely in that Commission. Columbus Iron & Steel Co. v. Kanawha & M. Ry. Co., 178 Fed. 261, 263. (d) In determining whether it should temporarily enjoin a proposed increase of interstate rates the court must take Into account the balance of equity be- tween the shippers and the carriers. If the balance of detriment or inconven- ience in the event the temporary injunc- tion is refused is against the shippers, then the injunction will be granted. But, ADVANCED RATES, §20 (e)— §21 (a) 49 if on the other hand, the balance of detri- ment or inconvenience is against the car riers, in the event the temporary injunc- tion should be issued, then it should be refused. Arlington Heights Fruit Co. v. S. P. Co., 175 Fed. 141, 142. (e) For some years prior to 1904 a rate of $1.00 per 100 lbs. on lemons from California to New York markets was maintained as an emergency rate, and for five years after said date by negotia- tions between defendant carriers and complainant shippers was maintained as a permanent rate and plaintiffs enlarged their orchards and their business in re- liance upon this fact. Defendant pro- posed to increase the rate to $1.15. There was some evidence of an increase in the cost of labor as applied to railroad opera- tion, but the entire cost of transportation had not increased. If complainants were refused a temporary injunction, they would have to pay an increase in freight of about $250,000 a year, whereas if the injunction were granted the defend- ants would be protected by bond for the increase in rates if the same should be sustained by the Interstate Commerce Commission. The increased rates threat- ened to destroy complainant's industry on account of competition with lemons from Sicily, and it appeared that defend ants were attempting to raise the rate in order to share in the benefits of the pro tective tariff imposed against Sicily. HELD, complainants were entitled to a temporary injunction pending the deci- sion of the Interstate Commerce Commis sion. Arlington Heights Fruit Co. v. S P. Co., 175 Fed. 141, 143, 144. (f) Under the Interstate Commerce Act, as amended June 29, 1906, the courts* have no power to enjoin the filing, publi cation or enforcement of a schedule of rates under a bill brought prior to the date of filing the rates of the tariffs, since the Interstate Commerce Commission has exclusive jurisdiction of determining questions of reasonableness and discrimi nation with respect to interstate rates. Columbus Iron & Steel Co. v. Kanawha & M. Ry. Co., 171 Fed. 713, 719. (g) Under the Interstate Commerce Act, as amended June 29, 1906, the corrts have no jurisdiction to enjoin the filing and posting of a rate or to enjoin the enforcement of a rate after it has been filed and posted, but before it has ever been enforced. Houston Coal & Coke Co. v. N. & W. Ry. Co., 171 Fed. 723, 724, 725. (h) Under the Interstate Commerce Act, as amended by the act of June 29, 1906, the courts have no jurisdiction to entertain a suit in equity to prevent a filing of a schedule of rates or a change to unjust or unreasonable rates, since said acts lodge the question of reason- ableness of rates exclusively with the Interstate Commerce Commission. (Shelby, J., dissenting.) A. C. L. R. R. Co. V. Macon Grocery Co., 166 Fed. 206, 218. (i) Under the Interstate Commerce Act, as amended, the courts have juris- diction to entertain a bill in equity to enjoin the enforcement of a threatened ruinous schedule of interstate rates which is proposed to be adopted in the future without any previous action thereupon by the Interstate Commerce Commission. N. P. Ry. Co. v. Pacific Coast Lumber Mfrs. Assn., 165 Fed. 1, 8. (j) Under the Interstate Commerce Act, as amended, the courts have no juris- diction to enjoin the enforcement of interstate rates after the schedule has been filed and put into effect, since the authority to determine the reasonablenesi of rates is vested by the act exclusively In the Interstate Commerce Commission., G. N. Ry. Co. V. Kalispell Lumber Co., 165 Fed. 25, 28. (k) Under the Act, as amended in 1906, a United States Circuit Court may enjoin a carrier from putting a proposed advance into effect, and, restrain such advance, until the Commission shall have an opportunity to pass on the rea- sonableness of the rates involved. Kiser Co. V. Central of Ga. Ry. Elec, 158 Fed. 193, 198. (1) A state equity court has no juris- diction to enjoin the filing of a schedule of increased interstate rates with the Interstate Commerce Commission, as by the Act the Commission has exclusive original jurisdiction to determine the reasonableness of such rates. Thacker Coal & Coke Co. v. N. & W. Ry. Co.. 67 W. Va. 448, 454, 68 S. E. 107. §21. Investigation. (a) Where the advance of an individ- ual rate has been attacked in a general inquiry before the Commission, it is not necessary or proper to inquire into it, pending the general investigation. Hy- draulic Press Brick Co. v. Vandalia R. R. Co., 15 I. C. C. 175, 176. 50 ADVANCED RATES, §22 (a) — (f) VII. REPARATION. See Reparation. §2 (k), (I), (kk), §9 (a), (b), (c), §16 (fff), (ggg), (nnn), (qqq), (vvv), §20 (a). ^22. In General, See Claims. (a) When a rate is advanced and the increased rate is condemned by the amount of the advance a much more sat- isfactory basis for an award of repara- tion is afforded than in the present case, where so far as changes have occurred they have been at least for the most part reductions in a territory where changes in conditions have taken place which contribute in greater or less degree to a present showing of unreasonableness in existing rates. Anadarko Cotton Oil Co. v. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 50. (b) Complainant, a large lumber cor- poration, operated a lumber road con- necting its timber tract with the Cen- tral of Ga. Ry. under a contract whereby it received a division of 2c per 100 lbs. upon all traffic delivered to the trunk line. It also carried freight for small competitors located on the tap line. Eventually an advance was made in the lumber rate of 2c per 100 lbs. by the trunk line and the division to the tap line was increased to 5c per 100 lbs. It is found that the reasonable cost of hauling the lumber of the tap line is 2c per 100 lbs., and that the advance in rate by the trunk line was unreasonable. HELD, that the tap line so far as it was oper- ated in the interests of the complainant was a plant facility and not a common carrier. That on account of the increase in the division of rates with the tap line it is apparent complainant did not pay the increased rate. Reparation denied. Kaul Lumber Co. v. C. of Ga. Ry. Co., 20 I. C. C. 450. (c) Complainant shipped snap corn, Calvin, Okla., to DeQueen and Wilton, Ark., under a joint rate of 23c. Prior to date of shipment the rate had been 19c, but was advanced at time of shipment, but the tariff not posted at Calvin. Had this been done the increased rate would have been included in the price of the corn, which was sold f. o. b. destination. HELD, reparation should be awarded on account of the failure of the carrier to post the tariff changing the rate. Ca- nadian Valley Grain Co. v. C. R. I. & P. Ry. Co., 19 I. C. C. 108. (d) Defendants advanced the rate on lemons from Southern California to east- ern destinations from $1 to $1.15 per 100 lbs. Before the advanced rates became effective an injunction was issued by the Circuit Court of the U. S. for the District of Southern California in favor of cer- tain of the complainants in this proceed- ing against the collection of the advanced rate. HELD, if in any case the advanced rate has been paid, reparation will be allowed on the basis of the $1 rate upon proper proceedings. Arlington Heights Fruit Exch. v. S. P. Co., 19 I. C. C. 148, 155. (e) Defendants advanced in 1907 rail and lake rates from the Atlantic seaboard and other eastern points of origin to Chicago and other western destinations. The advances were to cover the cost of marine insurance, which for the first time was furnished as part of the rate. The Commission, in 13 I. C. C. 258, 15 I. C. C. 577 (rehearing), held the rates were un- reasonable unless shippers were ade- quately protected by insurance. For two years great uncertainty prevailed as to the extent of protection given by the carriers, but ultimately the tariffs were adjusted in conformity with its sugges- tions. During this period complainants insured their shipments themselves and also paid the increased rate. The orig- inal petition filed by complainants con- tested the advances and prayed repara- tion, and this supplemental petition ask- ing reparation to the amount of the in- surance paid during the period of uncer- tainty was filed soon after final decision in the original case. HELD, complain- ants have acted with due diligence; that the exact measure of the difference be- tween the rate which was exacted and the rate found to be reasonable by the Commission in the original proceeding was the amount paid to secure the in- surance; that by th6 payment of the un- reasonable rate the complainants had been damaged in precisely that amount. Reparation awarded. Wyman, Partridge & Co. V. B. & M. R. R., 19 L C. C. 551. (f ) Carriers who concur in establishing an unlawful advance in rates are not thereby rendered jointly and severally liable for damages resulting therefrom, where they did not participate in the particular rate or receive any part of the overcharge in question. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 209. ADVANCED RATES, §22 (g)— ALASKA, I (a) 51 (g) A rate on lumber was in 1904 raised from 75 to 85c and in 1908 was found to be unreasonable to the extent of 10c. The shippers paying said excess were probably not themselves damaged jjince they simply added same to the selling price and cast the burden upon the public. HELD, the shippers should not be permitted to slumber upon their rights and to accumulate damages against the carriers and should be awarded reparation only for shipments plaint. Burgess v. Transcontinental made since the date of filing the corn- Freight Bureau, 13 I. C. C. 668, 680. (h) Rates on lumber were increased in 1908. The complaint was filed in 1907. Although the rates attacked were proved to be unreasonable at the time of the bearing, no evidence was offered to show them unreasonable prior to 1903. HELD, on account of the laches of complainant and the lack of proof, reparation could not be awarded on shipments made prior to the date of filing the complaint. Thomp- son Lumber Co. v. I. C. R. R. Co., 13 I. C. C. 657, 667. ADVERTISING. I. OF EXCURSION TICKETS. II. AS REBATES. See Facilities and Privileges, §1 (I), §21 (n). I. OF EXCURSION TICKETS. (a) Good faith to the public requires carriers to state in their advertisements of their excursions the total, amount which will be exacted for the trans- portation privilege, of which validation is a part and for which a fee of 50 cents is charged, but it is difficult to see how it can be held to be a violation of the Act to exact a part of the tariff rate at the ticket office when the ticket is sold, and the balance of that rate at the vali- dating agency when the ticket is vali- dated. Riter v. O. S. L. R. R. Co., 19 I. C. C. 443, 444. II. AS REBATES. See Crimes, §7 (b), (bb), (c). (a) The fact that a state statute under which a railroad is organized per- mits it to issue transportation to pub- lishers in exchange for advertising does not prevent such an arrangement be- tween the carrier and publishers from being in violation of the provisions of the Act forbidding tbf carrier to accept rates "less than and different" from the rates exacted from the general public. Chi. Ind. & L. Ry. Co. v. U. S., 219 U. S. 486. 494; 31 Sup. Ct. 272, 55 L. ed. 305. (b) Under the Act a passenger has no right to buy tickets with services, adver- ising, releases or property, nor can the railroad company buy services, advertis- ing, releases or property with transpor- tation. The statute manifestly means that the purchase of a transportation ticket by a passenger and its sale by the company shall be consummated only by the former paying cash and by the latter receiving cash of the amount specified in the published tariffs. L. & N. R. R. V. Mottley, 219 U. S. 467, 477; 31 Sup. Ct. 265, 55 L. ed. 297. (c) A contract by which a carrier agrees to furnish transportation to a publisher and his employes in exchange for advertising space at the regular ad- vertising rates of the publisher, violates he provisions of the Act forbidding the furnishing of transportation at rates "less than and different" from those ex- acted from the general public. Chi. Ind. & L. Ry. Co. V. U. S., 2:9 U. S. 486, 494, 31 Sup. Ct. 272, 55 L. ed. 305. (d) A contract between a magazine publisher and a railroad by which the 'after is to furnish transportation to be paid for by advertising space supplied by the former is in violation of the Elkins Act of Feb. 19, 1903, as amended by the Hepburn Law of June 29, 1906, in that a different compensation is pro- vided for than that specified in the law- fully published tariffs. U. S. v. C. I. & L. Ry. Co., 163 Fed. 114, 115. AGENCY. See Crimes. §15; Facilities and Priv- ileges, §21 (a); Foreign Commerce, §1 (f); Passenger Fares and Facil- ities, §8 (d), §15; Routing and Mis- routing, §7 (uu), (vv), (XX); Special Contract, §2 (dd), (mm); Tariffs, §3 (g)r (r), §3 (2): Through Routes and Joint Rates, §15 (vv) ; Trans- portation, §2 (e); Undercharges, §2 (d), (e), (f). ALASKA. See Courts, §3 (a), (b); Foreign Commerce. I. REGULATION OF RATES. See Interstate Commerce Commis- sion, I. (a) Under the amendment of June 29, 1906, the Commission has jurisdiction 52 ALASKA, I (b)— ALLOWANCES, §1 (a) over a complaint demanding a filing with the Commission and publishing of rates for transportation of passengers and property between points in Alaska and points in the Dominion of Canada and other places, and the establishment of through routes and joint rates between points in Alaska and points in the State of Washington, said amendment having superseded the authority conferred upon the Secretary of the Interior by section 2 of the Act of May 14, 1898. I. C. C. v. H. S. S. Co., 224 U. S. 474, 483; 32 Sup. Ct. 556, 56 L. ed. 849. (b) Although mandamus will not lie so as to interfere with the exer- cise of its discretion by the Commis- sion, it will lie to compel the Commis- sion to take jurisdiction over carriers operating between Alaska and the States and between Alaska and adja cent foreign countries, where the Com- mission has refused to do so pursuant to its belief that the Interstate Com- merce Act has conferred upon it no authority over such carriers. I. C. C. V. H. S. S. Co., 224 U. S., 474, 484; 82 Sup. Ct 556, 56 L. ed. 849. (c) Under the Act as amended, June 29, 1906, Alaska is a territory to which the provisions governing rates apply. Humboldt S. S. Co. v. I. C. C, 37 App. Cas., D. C, 266, 274. (d) The Supreme Court of the Dis- trict of Columbia will issue a writ of mandamus to compel the Interstate Commerce Commission to entertain a petition by a steamship company to compel the filing with the Commission of rates and the establishment of through routes and joint rates on traffic moving between Alaska and ad- jacent foreign countries and Alaska and the State of Washington. Hum- boldt S. S. Co. V. I. C. C, 37 App. Cas., D. C, 267, 275. (e) Alaska is not a territory of the United States regularly organized either in the traditional or in the •ense in which the phrase is used in the Act to Regulate Commerce, and the Interstate Commerce Commission therefore has no jurisdiction in the District of Alaska. In re Jurisdiction in Alaska, 19 I. C. C. 81, 92, 94; Hum boldt S. S. Co. V. White Pass & Yukon Route, 19 I. C. C. 105. joint rates from Seattle, Wash., to Skagway, Alaska. Humboldt S. S. Co. V. White Pass & Yukon Route, 19 I. C. C. 105. (g) The Commission has no jurisdic- tion over an alleged discrimination in wharf facilities in Alaska. Humboldt S. S. Co. V. W. P. & Y. Route, 19 I. C. C. 105. ALLOWANCES. I. CONTROL AND REGULATION. §1. Commission's right to investi- gate. §2. Power to prescribe. §3. Effect of order. II. PUBLICATION AND TARIFFS. §4. Obligation to file. §5. Effect of publication. §6. Construction. III. DISCRIMINATION. §7. Obligation to treat all alike. §8. Particular allowances. (1) Compressing cotton. (2) Cooperage. (3) Elevation of grain. (4) Lighterage. (5) Spotting cars. (6) Staking. (7) Transfer. IV. LEGALITY OF ALLOWANCES. §9. In general. §10. Transportation service per- formed by shipper. §11. Transportation facility. §12. What is not transportation service. (1) Accessorial or inci- dental service, (2) Operation of plant facility. V. REASONABLENESS OF AI^ LOWANCES. §13. In general. VI. DAMAGES AND REPARATION. §14. In general. VII. AS REBATES. §15. In general. VIII. CRIMINAL LIABILITY. §16. In general. CROSS-REFERENCES. See Divisions; Lighterage, §3: Tap Lines, §9. I. CONTROL AND REGULATION. §1. Commission's Right to Investigate. (f) The Commission has no juris- (a) The Commission has jurisdiction diction to establish through routes and | under section 13 of the Act to inquire ALLOWANCES, §2 (a)— §3 (b) 53 Into the lawfulness of allowances made by carriers to shippers for the alleged transfer by the latter froni their refin- eries or warehouses to the cars of de- fendants under a proceeding instituted by the Commission and without the fil- ing of any complaint by the shipper, where the defendants have been duly brought in and granted a hearing. In Re Allowances for Transfer of Sugar, 14 I. C. C. 619, 625, 627. §2. Power to Prescribe. See Commerce Court, §3 (c); Courts, §10 (a); Facilities and Privileges, §1 (d); Special Contract, §4 (1), (h), (k), (m); Tap Lines, §2 (a), (b), (c), (d). (a) Under the Act as amended June 29, 1906, elevation is made such a part of transportation as to bring it within the jurisdiction of the Interstate Com- merce Commission, which is authorized to determine what is a reasonable al- lowance to the shipper for elevation services. U. P. R. R. Co. v. Updike Grain Co., 222 U. S., 215, 218; 32 Sup. Ct. 39, 56 L. ed. 171. (b) In a suit for damages by a coal shipper against a railroad for unjust discrimination contrary to the Act to Regulate Commerce in making allow- ances for services rendered by the lo- comotives of the plaintiff's competitors in hauling cars over private tracks, the U. S. Circuit Court holds it has juris- diction without a prior application to the Interstate Commerce Commission, pending the decision of such question of jurisdiction on a pending appeal in another case. Mitchell Coal & Coke Co. V. Pennsylvania R. R. Co., 181 Fed. 403, 410. (c) Treatment of grain in the ele- vators, the cleaning, clipping, mixing, inspecting, and grading of it, is a trade service; it is no part of transportation and is not a transportation service. No power has ever been granted to the Interstate Commerce Commission to regulate, to prohibit, to separate by miles from the service of elevation and transfer in transit or from any other transportation service, or to interfere with this trade service. Peavey & Co. V. U. P. R. Co., 176 Fed. 409, 419. (d) The Interstate Commerce Com- mission has no power to forbid carriers from paying or allowing for the elevation and transfer of grain in transit reason- able compensation, because there is a possibility of a future violation of the law arising out of such allowances. Peavey & Co. V. U. P. R. Co., 176 Fed. 409, 419. (e) By section 15 of the Amended Act the Commission has power to limit and prescribe the amount that a carrier may pay a shipper for the performance of a part of the carrier's duty and service in connection with the transportation of his freight. Sterling & Son v. M. C. R. R. Co., 21 I. C. C. 451. 454. (f) Each case involving an allowance nust be determined upon the special facts and circumstances presented. Mer- chants Dispatch Storage Co. v. I. C. R. R. Co., 17 I. C. C. 98, 106. (ff) Where a defendant railroad has agreed with a shipper to allow it a cer- tain sum for services performed by the shipper in moving cars over switch- ing tracks connecting the storage tracks with the shipper's buildings and fac- tories, the Commission has no authority to enforce the specific performance of such a contract, or to award damages for the breach thereof. General Electric Co. V. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. (g) Free elevation of grain may be pro- hibited by the Commission since there is no difference in principle between the giv- ing of the service and the giving of the money with which to buy the service. TraflSc Bureau, Merchants' Exchange v. C. B. & Q. R. R. Co., 14 I. C. C. 317, 330. §3. Effect of Order. See Interstate Commerce Commis- sion, §5. (a) Where the principle of a decision prohibiting elevator allowances applies everywhere, the Commission expects that all interests, though not parties to the proceeding, will conform to the ruling of the Commission. Traffic Bureau, Mer- chants' Exchange v. C. B. & Q. R. R. Co., 14 1. C. C. 510. (b) Where upon a petition to reopen a former decision of the Commission prohibiting elevator allowances, no new fact or argument is presented, and while petitioners were not parties to said for- mer decisions, the interests which they represent were fully considered, the petition will be denied. Traffic Bureau, Merchants' Exchange v, C. B. & Q. R. R. Co., 14 I. C. C. 510. 54 ALLOWANCES, §4 (a)— §7 (d) II. PUBLICATION AND TARIFFS. See Tariffs, II. §4. Obligation to File. (a) Whatever charges are made, what- ever services are performed, and w^hat- ever privileges are allowed by carriers, must be stated separately in the schedules filed with the Commission. Anderson, Clayton & Co. v. C. R. I. & P. Ry. Co., 18 L C. C. 340, 350. (b) Carriers should not publish rates in one tariff and discounts or allowances from such rates in another tariff, or even in another passage of the same tariff, but wherever possible should file a net rate as such. In re Allowances for the Trans- fer of Sugar, 14 I. C. C. 619, 630. §5. Effect of Publication. (a) On a shipment of cheese defend- ant was directed by the complainant con- signee to deliver same to a warehouse at the point of destination. Defendant's tar- iff provided for the absorption of a switching charge to this warehouse. De- fendant's agent at point of destination, misconstruing the obligation, refused to so switch the car and unloaded the car at the freight house. Complainant accepted the shipment at the freight house and hauled the same to the warehouse with teams. He sought to recover the cost of drayage. HELD, complainant should have insisted on the switching services and re- fused to accept the car at the freight house, and having failed so to do, could not recover. Crosby & Meyers v. Good- rich Transit Co., 17 I. C. C. 175, 176. (b) Defendants quoted a rate on ex- lake grain from Ogdensburg, N. Y., to Boston of 31/^c and relying on this quo- tation, complainant concluded a sale and arranged for ocean transportation of the grain. It was the uniform custom to in- clude elevation charges in the rate under which ex-lake grain moved from the lake port. Defendants' tariff, however, simply provided a rate of 3i/^c between the points in question, making no mention of elevation charges. Complainant was as- sessed i/^c per bushel for elevation, in addition to the 3^c rate. HELD, the mis- quotation of the rate did not relieve the defendants from their obligation to col- lect the published rate. Ames, Brooks Co. V. Rutland R. R. Co., 16 I. C. C. 479, 480, 481. (c) A common carrier by contract may not impose upon itself any burden or grant any privilege, or perform any service, or make any allowance with re- spect to the traffic of a particular shipper except under the authority of its pub- lished tariffs, and then only when the burden is assumed or the privilege grant- ed or allowance made to all shippers un- der like circumstances and similar con- ditions. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. §6. Construction. (a) Prior to Oct. 29, 1907, defendant's tariffs provided that 25c per car would be paid to coal shippers in box and stock cars in the Rocky Mountain region when car door boards were furnished by them. On Aug. 18, 1907, defendant consented to increase its allowance to 50c and agreed that as to complainant the increased al- lowance should date back to July 1, 1907. The tariff announcing said increase was filed and became effective Oct. 29, 1907. HELD, defendant could not lawfully al- low complainant the increased rate for the period from July 1 to Oct. 29 under section 6 of the Act. Victor Fuel Co. v. A. T. & S. F. Ry. Co., 14 L C. C. 119, 120. III. DISCRIMINATION. §7. Obligation to Treat All Alike. See Common Carrier, §3 (f) ; Pro- cedure Before Commission, §11 (t). (a) Whatever allowances are made must be just, reasonable and non-discrim- inatory. Suffern Grain Co. v. I. C. R. R. Co., 22 I. C. C. 178, 183. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200, 212. Anderson, Clayton & Co. v. C. R. L & P. Ry. Co., 18 I. C. C. 340, 350. Brook-Rauch Mill & Elevator Co. v. M. P. Ry. Co., 17 I. C. C. 158, 161-163. (b) To pay an elevation allowance to one shipper or at one place while declin- ing to pay it elsewhere is undue discrim- ination unless justified by circumstances. Suffern Grain Co. v. L C. R. R. Co., 22 I. C. C. 178, 183. (c) A carrier is not warranted under section 15 of the Act in making an al- lowance to a shipper who provides a fa- cility and performs a service in the trans- portation of his own property while re- fusing a similar allowance to another shipper competing in the same markets in the same line of business who provides a similar facility and performs the same service in the transportation of his prop- erty. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200, 212. (d) No violation of the Act can be predicated solely upon the fact that a ALLOWANCES, §8 (1) (a) — (d) 55 carrier makes with one independent com- pany a contract more favorable than with another for a service which that carrier is bound or undertakes to perform. The Act deals only with the obligation of car- riers as carriers and in no way attempts to regulate or interfere with matters in involving their duties to shippers or pas- sengers as such. Compression of cotton is a service which the carrier procures for its own convenience, and when that service is performed in such a manner as not to prejudice or prefer a particular shipper or community, the Act does not limit the freedom of the carrier to mak- ing contracts in respect thereto. Mer- chants' Cotton Press & Storage Co. v. I. C. R. R. Co, 17 I. C. C. 98, 104. §8. Particular Allowances. §8. (1) Compressing Cotton. See Compress Companies and Charges, §1 (e) ; Facilities and Privileges, §3. (a) Carriers have the right to com- press cotton in transit. They also have the right to grant or allow to shippers or owners of cotton the privilege to con- centrate uncompressed cotton at desig- nated compresses on their lines for such treatment as the shippers or owners may desire to give it with the right of the shippers or owners to deliver the cotton back to the carriers for transportation to interstate or foreign destination at the through rates from point of origin. What- ever charges are made must, however, be just, reasonable and non-discriminatory. They may not pay to compress companies any unjust or reasonable charge. Ander- son, Clayton & Co. v. C. R. 1. & P. Ry. Co., 18 L C. C. 340, 350. (b) An allowance made at South Mem- phis for handliug cotton from inter- change tracks to compresses and ware- houses in order to place South Memphis dealers on a parity with Memphis deal- ers, where there is a free store delivery is not objectionable. Merchants' Storage Co. V. I. C. R. R. Co., 17 I. C. C. 98, 103. (c) Cotton shipped into Memphis was drayed back and forth by defendant car- riers to compressing plants located in that city to be compresed, and then carried from Memphis to destination points at the through rate. Defendants paid the expense of drayage and com- pression to private companies allowing 171/^c and 50c per bale for drayage and compression respectively. Complainant was a compressor of cotton at Memphis, but not a shipper thereof. Defendant warehouse company established a com- pressing plant at South Memphis, some two miles from the municipal line. The stock in the company was principally owned by dealers and shippers of cotton. The company connected its plant with the lines of defendants by a system of switch tracks. On cotton compressed by the defendant warehouse the defendant carriers allowed 10c per bale for switch- ing the same to and from its warehouse, and 50c per bale for compression. De- fendant carriers charged a rate of 20c a bale for hauling cotton from warehouse in Memphis to South Memphis. Com- plainant alleged that the stockholders of defendant warehouse company at South Memphis being themselves shippers, obtained lower rates through the divi- dends derived by them from the profits of their warehouse company. Complain- ant introduced no evidence to show that the defendant warehouse company made any profit on cotton compressed by it at the 10c switching charge and 50c com- pressing charge. HELD, complainants, not being themselves shippers of. cotton, and failing to show that defendant ware: house company was making any profits at the 10c and 50c charges failed to es- tablish a case of unjust discrimination between shippers, as it was perfectly law- ful for carriers to make special contracts with private companies which were not shippers on their lines. (Clements & Lane, Comm'rs, dissenting.) Merchants Cotton Press & Storage Co. v. I. C. R. R. Co., 17 L C. C. 98, 104, 106. (d) Defendant railroads expended some $106,000 in erecting on their right of way at Argenta, across the river from Little Rock, Ark., an elevator and milling plant. It was leased to one. Bunch, a grain dealer, competing with complain- ant dealer at Little Rock, for his natural life upon a rental of $1 per year. Bunch gave to defendants promissory notes for some $37,000 which was the sum in ex- cess of the anticipated cost of the plant. Bunch as lessee agreed to pay taxes, as- sessments and insurance premiums and to keep the buildings and machinery in repair. By the lease Bunch agreed to receive and handle without cost and without discrimination all grain tendered to him by other shippers for elevation or storage. As a matter of practice he did not do so, and it was never in good faith intended that he should so do. The de- 56 ALLOWANCES, §8 (2) (a)— §8 (3) (b) fendants refused to extend similar privi- leges to complainant. As a result of the transaction in question Bunch was able practically to monopolize the situation at the points in question. HEILD, the prac- tices complained of were unlawful and discriminatory and must be stopped. Brook-Rauch Mill & Elevator Co. v. M. P. Ry. Co., 17 I. C. C. 158, 161-163. §8. (2) Cooperage and Grain Doors. (a) Complainants asked that the de- fendant be required to provide by pub- lished rule that shippers of grain may when occasion makes it necessary, cooper the car that is furnished, and recover therefor an allowance not to exceed $5, including an allowance for grain doors. It appeared that shippers of grain from Washington and Oregon are furnished cracked and old box cars by defendant for the carrying of grain, which they repair themselves in order to save delay. HELD, that it is the primary duty of a railroad to furnish equipment that is usable, and in the event that the car furnished is unfit the shipper should reject it and call for another. Allowances of the kind re- quested are of a dangerous character. The carrier cannot tell what the actual amount of material and labor used by the shipper was. The car is loaded immediately upon being repaired and is sent to some far distant point. There are no means of adequately checking the expenditure of the shipper so that it becomes extremely easy to turn such allowances into real rebates. It is a safer and more reasonable practice to curtail such allowances than to extend them, since the Commission cannot in any way police such repairs and it is a far wiser policy for the carriers to repair their own equipment than to farm it out to shippers. A rule of this char- acter could not be limited to the repair of cars for a shipment in bulk of grain without establishing a precedent as to allowances for other commodities. Com- plaint dismissed. Balfour, Guthrie & Co. V. O. W. R. R. & N. Co., 21 I. C. C. 539, 540. §8. (3) Elevation of Grain. (a) Complainant sought to compel the I. C. R. R. to accord to grain dealers at Decatur, 111., the same transit privileges and elevation allowances as those per- mitted at Cairo, 111. Decatur is situated in central Illinois, Cairo at the extreme south. The I. C. R. R. runs through De- catur to Cairo. Tariffs of the I. C. R. R. permit grain to be unloaded and treated at Cairo and reshipped at the balance of the through rate. The I. C. R. R. also pays a %c elevation allowance. Reasons were shown why Decatur should be a grain-handling point for the interests of the public, such as nearness to origin, central location, etc. The cause of these rates at Cairo is alleged to be competi- tion. Cairo is on the Ohio River where grain rates break. In some instances Cairo is not the breaking point but a through rate is established to compete with the breaking point and stoppage also granted. Other Illinois towns will de- mand similar privileges, if complainant is successful. Additional expense will be required to police such regulations. Peoria, 75 miles north of Decatur, already enjoys these privileges. HELD, defend^ ant is guilty of discrimination in accord- ing transit privileges to Cairo which are denied Decatur. The question of advan- tage on account of the rate breaking at the Ohio River was not decided. Suf- fern Grain Co. v. I. C. R. R. Co., 22 L C. C. 178, 182. (aa) A carrier has no right, under the pretext of a transfer which it does not require, to furnish a grain dealer commercial elevation, or what amounts to the same thing, to pay through an elevation allowance for the commercial elevation of his grain, and if it does so, it must accord the same privilege or make the same payment at another point. Traffic Bureau. Merchants' Ex- change V. C. B. & Q. R. R. Co., 22 I. C. C. 496, 503. (b) In the decisions by the Supreme Court of the United States in the Diffen- baugh case, 222 U. S. 42, and the Up- dike case, 222 U. S. 215, relating to the legality of the allowances paid for the j elevation of grain by the Union Pacific I at Council Bluffs, ia., it was the in- : tention of the court to hold that, what- , ever might be the case if a railroad ; saw fit to confine its payment to eleva- tion actually required in the conduct of its business, it must, when it makes an allowance to one elevator under such I circumstances as to give that elevator i payment for commercial elevation, ex- I tend the same privilege to all other ele- , vators similarly situated at that point. I Defendant carriers ordered not to ex- I ceed %c in the payment of elevation. ALLOWANCES, §8 (3) (bb) — (e) 57 or transfer allowances on grain at the Missouri River and to confine that pay- ment to grain actually passing through the elevators in ten days. Traffic Bu- reau, M-erchants' Exchange v. C. B. & Q. R. R. Co., 22 L C. C. 496, 505, 506. (bb) Complainant's competitor owning an elevator at Nebraska City, Neb., sbipped grain from country elevators to Nebraska City on local bills of lading and at intrastate rates fixed by the Ne- braska Commision. It was allowed %c per 100 lbs. as an elevation charge for cleaning, grading and mixing grain at Nebraska City. It was then permitted to ship out the grain or an equal amount of other grain to points east at the balance of the through rate. In this way it se- cured a rate lower than the through rate, which was open to complainant which, owning elevators at Rosemont, Upland and other Nebraska points cleaned and mixed its grain at those elevators and shipped the same on through rates to eastern points. The purpose of the ele- vation allowance in question was to foster grain markets on the Missouri River for the benefit of carriers from the west, whose lines terminated at the Missouri River, without the necessity on their part of losing the benefit of joint through rates. HELD, despite the decis- ion in Peavey & Co. v. Union Pacific R. R. Co., 176 Fed. 409, upholding such allowances, it was in the opinion of the Commission unlawful, since it was not a payment for a transportation service, but for a merchandising operation and rep- aration based on such allowance would be withheld from complainant pending final decision in the matter by the United States Supreme Court. Gund & Co. v. C. B. & Q. R. R. Co., 18 I. C. C. 364, 366. (c) On shipments of grain products and hay from Ohio and Mississippi River crossings and beyond to southeastern destinations, dealers at Nashville under the guise of "elevation allowances" were paid by defendants allowances where the grain was unloaded or sacked at their stores or warehouses, irrespective of whether there was any elevation in- volved, or whether the sacking was done by hand or by machinery, when the ship- ments moved out of Nashville to south- eastern points. These allowances were not made to dealers located at Atlanta and other Georgia points. HELD, fol- lowing Nebraska-Iowa Grain Co. v. U. P. R. R. Co., 15 I. C. C. 90, such allowances were unduly discriminatory and should be stopped. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 592. (d) Defendant in its rule, making an elevation allowance of 1^/4 c per 100 lbs., provided that said allowance would not be granted except where shippers re- turned to defendant the unloaded cars within 48 hours. Complainants' elevators at Omaha and Council Bluffs were lo- cated off the rails of defendant and were reached by an independent switching line. Under the rules adopted by the carriers, loaded cars received by switch- ing lines must be returned to the rail- road owning same when unloaded, if said owner has a direct connection with said switching line; otherwise the switching line has the option of returning the empty car to the carrier presenting same or of loading out such car in such a way that the road owning it will participate in the haul. Said switching road has the power therefore to determine whether a car shall be returned to the line from which it was received and the elevator cannot direct the disposition of the same. Under the rule complainants' competitors having elevators located on defendant's rails were able to comply with it and gain the allowance, whereas complainants were not able to control the disposition of empty cars so as to return same to defendant within the 48- hour period. HELD, such limitation as to time was unjustly discriminatory and illegal and the failure to comply with same did not prevent complainants from recovering such allowance. Nebraska- Iowa Grain Co. v. U. P. R. R. Co., 15 L C. C. 90, 100, 101. Affirmed with the modification that reparation should not be awarded where the cars were actually returned to the defendant by the ship- pers, but were- not returned within the 48 hours specified in the rules. U. P. R. R. V. Updike Grain Co., 178 Fed. 223; affirmed 222 U. S. 215, 32 Sup. Ct. 39, 56 L. ed. 171. (e) Defendant withdrew all elevation allowances from complainant at Atchison, Kan., but performed free services for complainant's competitors at Coffeyville, Leavenworth and Kansas City in the way of elevation, cleaning, mixing and clip- ping grain. During the period this was done, elevation allowances were being paid under the authority of the Commis- sion. The value of the services rendered to complainant's competitors was %c per 58 ALLOWANCES, §8 (3) (ee)— §8 (4) (a) 100 lbs. HELD, said discrimination was unreasonable and complainant was en- titled to reparation of %c per 100 lbs. on all grain shipped and elevated during the period in question. Washer Grain Co. V. M. P. Ry. Co., 15 I. C. C. 147, 158. (ee) Defendant carrier allowed to a grain company %c per 100 lbs. for grain which remained stored in the elevator beyond the elevation period of 10 days. Said grain was mixed, treated, stored, weighed and inspected in the elevators in such a manner as to enhance its value. HELD, the allowance amounted to an undue preference and in effect an unlawful rebate, and should be forbid- den. In the Matter of Allowances to Elevators by the Union Pacific R. R. Co., 14 I. C. C. 315, 316. (f) Defendant carriers allowed %c pei 100 lbs. to dealers in grain in Missouri River cities as an elevation allowance. They extended no such allowances to dealers located in Mississippi River cities. As a result it cost the latter deal- ers %c per 100 lbs. more to move grain from points of purchase through their elevators and beyond to points of sale, than the same transportation cost deal- ers in 'Missouri River cities. It appeared that the weighing of grain to determine the amount due the original seller thereof could only be practically accomplished through the process of elevation. De- fendants were subjected at Missouri River points to competition with a carrier entering from the northwest, which they did not meet with at Mississippi River points. HELD, distinguishing In the Matter of Allowances to Elevators by the Union Pacific R. R. Co., 12 I. C. C. 85, that the elevator allowances constituted an undue and unlawful discrimination. Traffic Bureau, Merchants' Exchange v. C. B. & Q. R. R. Co., 14 I. C. C. 317, 328- 331. (ff) The payment of an elevator allowance of %c per 100 lbs. to elevators located upon the Missouri River is an undue and unlawful discrimination. In Re Allowances to Elevators by the Union Pacific R. R. Co., 14 I. C. C. 315; Traffic Bureau of St. Louis v. C. B. & Q. R. R. Co., 14 I. C. C. 317, 510; Traffic Bureau of St. Louis v. C. B. & Q. R. R. Co., 14 I. C. C. 551. (g) Defendant carrier allowed to a grain company (Peavey & Co.) %c per 100 lbs. for grain which remained stored in the elevator beyond the elevation period of 10 days. Said grain was mixed, treated, stored, weighed and inspected in the elevators in such a manner as to enhance its value. HELD, the allow- ances amounted to an undue preference and was in effect an unlawful rebate. In the Matter of Allowances to Elevators by the U. P. R. R. Co., 14 I. C. C. 315, 31G. Rehearing denied. Traffic Bureau, Mer- chants' Exchange v. C. B. & Q. R. R. Co., 14 I. C. C. 510. Orders enjoined, Peavey & Co. V. U. P. R. R. Co., 176 Fed. 409, 419. The injunction sustained with the modification that the Commission's order of 1907, diminishing the elevator allowances to %c, and so much of the Peavey order of 1908 as confined allow- ances to grain reshipped within 10 days be allowed to stand. (McKenna & Hughes, JJ., dissenting.) I. C. C. v. Diffenbaugh, 222 U. S. 42, 45, 32 Sup. Ct. 22, 56 L. ed. 83. §8. (4) Lighterage. See Lighterage, §4. (a) Arbuckle Bros, operate their ware- house and property at the foot of Bridge St., Brooklyn, as the Jay St. terminal of defendants. For the use of the dock and for their services in conducting it as a freight station and in floating and light- ering shipments between the dock and the regular terminals of the defendants in Jersey City, Arbuckle Bros, received from defendants allowances ranging from 3 to 4 l-5c per 100 lbs. on all mer- chandise passing through the terminal whether inbound or outbound. The floats and barges used in this service are owned by Arbuckle Bros., and all persons em- ployed in the handling of freight on the water as well as on the dock are on the payrolls of that firm. Immediately adjoining the dock property, Arbuckle Bros, have erected a large sugar refining plant of their own. One-third of the total tonnage handled through the dock, inbound or outbound, is sugar received or shipped by them. The other two- thirds is merchandise received or shipped by the public generally. Complainant is a competitor of Arbuckle Bros., with its refinery located in Yonkers. It ships its sugar by a private transportation agency to Pier 24 and from thence to the New Jersey terminals of defendants, the same terminals to which Arbuckle Bros, deliver. It has to pay 3c per 100 lbs. for this service to the private agency it employs, and receives no allowance ALLOWANCES, §8 (4) (b)— §8 (5) (a) 59 from defendants. HELD, that when a carrier undertakes to have a terminal operated for it by the owner of the prop- erty and the owner happens also to be a large shipper over its line, the law reads into the agreement between the carrier and the owner the peremptory requirement that the arrangment shall not result in any undue and unjust dis- criminatiou against other shippers com- peting with the owner in the same line of business, and that the terms under which the defendant carriers accept the sugar of Arbuckle Bros, at their regular stations west of the river result in in- equalities, preferences and discrimination, and are unduly and unjustly prejudicial to the rights of the complainant ag a shipper of sugar over the lines of the de- fendants in competition with Arbuckle Bros, in the same markets. Reparation awarded. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200, 214. (b) When a shipper tenders'its sugar to the defendants on lighters at their regular receiving stations on the Jersey shore, it must be received and carried thence to destination on rates, ten s and conditions that are no less favorable to the complainants in any particular than the rates, terms and conditions gov- erning and surrounding the sugar traffic of a competitor, brought by them on floats and lighters to the same station for carriage to the same destination. Federal Sugar Refining Co. v. B. & O. R. R. Co.. 20 I. C. C. 200, 217. (c) Complainant, operating a sugar refinery at Yonkers, N. Y., was located about 10 miles north of the free lighter- age limits prescribed by defendants. Under the free lighterage practices, de- fendants carried traffic from points in the harbor and from the east side of the river back and forth to the ends of their lines located on the Jersey side. Competitors of complainant were located within the free lighterage limits, and on shipments from their plants located across the river from defendants' terminals, were allowed regular through rates without the ex- pense of lighterage. Complainant was compelled to pay from 3 to 4 l-5c per 100 lbs, for such service in addition to the through rates. Complainant could reach defendants' terminals over the line of another carrier, but such course was im- practicable, on account of the congested traffic of said line. One of complainant's competitors owned one of the terminals and lighterage systems located across the river, and used same in lightering its sugar, being allowed by defendants the same compensation as it derived from other freight lightered by it. Nothing in the evidence indicated this competitor was making a profit from the lighterage of its sugar in excess of the lighterage charges paid by the complainant. HELD, defendants had in fact extended their lines and made the terminals thereof the east side instead of the Jersey side of the river, and inasmuch as carriers could not be compelled to extend their lines to new localities, complainant was not entitled to compel defendants to extend their lines to Yonkers, a point outside of New York City; that complainant's proper remedy was an application for joint routes over defendants' and the lines of carriers reaching Yonkers; and that, although the ownership of the tei- minal system by complainant's competi- tor created a suspicious situation, undue discrimination could not be held to arise therefrom in the absence of evidence that said competitor was making a profit m the lightering of its own sugar. (Lane, Clements & Harlan, Comm'rs, dissent- ing.) Federal Sugar Refining Co. v. B, & O. R, R., 17 I. C, C, 40, 45, 47. §8. (5) Spotting Cars. See Allowances, §12 (2) (e), (f); Spe- cial Contract, §4 (1) (e) ; Switch Tracks and Switching, §5 (c), §8 (a); Terminal Facilities, §3 (d), (f), (g). (a) Complainant sought the removal of discrimination in that defendants did not "spot" cars at loading and unloading points within its plant, the receipt and delivery taking place at so-called inter- change tracks. The plant in question is a modern steel plant at Ivy Rock. Pa., 14.9 miles from Philadelphia, situated on Pa, R. R, and on the P. & R. R. R. An inter- mill road engaged principally in hauling materials between the steel plant and a subsidiary blast furnace across the Schuykill River has performed the serv- ice of "spotting." Some of the trucks are on complainant's land, some on de- fendants', and some on both. Some of the interplant tracks are standard gauge and some are narrow gauge. Complain- ant's track arrangement is very good an^i was designed with the intention of c mi- plainant doing its own switching. Negotia- tions for connections were completed with the P. & R, R. R, with this understand- ing, the defendant building interchange (racks at its own expense. Practically the same understanding was had with the 60 ALLOWANCES, §8 (5) (b)— §8 (7) (a) Pa. R. R., except that the cost of con- struction was divided. These agreements were subject to termination by eitlier party on specified notice being given. Later, complainant avers it found out that the switching services were per- formed for other plants. Such service had been performed at complainant's other plant for a long period. From lOOG to 1910, complainant has sought to have defendants agree to perform this serv- ice or make a switching allowance. Dc fendants have construed this as simply a demand for an allowance for switciiin.-^;. Defendants do perform switching fov some other plants which compete with complainant. They do not perform such service for others. In some Instances one road "spots" cars for a plant, while the other does not. In some instances some cars are "spotted," while others are not. Defendants tried to make their duties in this matter rest upon whether or not there was an interchange track or tracks. They also sought to distinguish between old plants where the original switching has gradually increased and modern plants. Such service by both railroads may be inconvenient, but it is not imprac- ticable. Complainant wanted the serv- ice or an allowance for the service. Neither defendant made any switching allowance in the Schuylkill Valley. HELD, the failure to perform the switch- ing service or tax an allowance there- for is discriminatory, but complainant cannot complain inasmuch as the par- ties have an agreement terminable at the option of either party on specified notice whereby complainant is to do its own switching, and as they have not ter- minated this agreement, and there being no allowance for switching paid in the Schuylkill Valley, the complainant is not subjected to undue discrimination. Wood Iron & Steel Co. v. Penn. R. R. Co., 22 L C. C. 540, 545. (b) At Cleveland, O., and Buffalo. N. Y., various terminal railroads were al- lowed by defendants $2.50 per car when the freight rate is 50c per ton or more, for spotting cars at certain blast fur- ^naces. No allowance for this service is made by defendants to the Buffalo Union Terminal Railroad, a terminal railway serving the Buffalo Union Furnace Co. at Buffalo, N. Y. HELD, that while at common law no obligation rested upon defendant carriers to do or pay for the spotting of cars at any of the furnaces mentioned, yet a different question is presented if the carriers voluntarily undertake to perform for some and re- fuse to perform for others the same service under substantially similar cir- cumstances and conditions; that the Buf- falo Union Furnace Co. should be placed on an equality with other furnaces. Reparation awarded. Buffalo Union Fur- nace Co. V. L. S. & M. S. Ry. Co., 21 I. C. C. 620, 627, 630. §8. (6) Staking. See Infra, §13 (b'*, (c) ; Facilities and Privileges, §10 (q), §13. (a) On a carload of poles from La- porte, Minn., to Poplar Bluff, Mo., no allowance was made for the weight of stakes in collecting charges. Subse- quent to the shipment a provision for such an allowance was inserted in defendants' tariff. Defendants admitted such a provision to be a reasonable one, and that it should have been inserted in their tariffs at the time shipment moved. HELD, reparation should be awarded to cover an allowance for stakes fur- nished by complainant. Duluth Log Co. V. M. & I. Ry. Co., 15 I. C. C. 627, 629. §8. (7) Transfer. (a) Defendant railroads and steam- ship lines made a "transfer allowance" of 2c per 100 lbs. on shipments of sugar from New York, the rail carriers restricting it to shipments from refiner- ies and the water carriers restricting it to shippers coming from certain desig- nated territory to their wharves. On account of this condition the refineries were the only shippers of sugar from New York. The allowance purported to cover the cost of cartage to the terminals of the carriers. It was in fact paid where no cartage at all was involved and where the carriers, by means of floats and switch tracks, re- ceived the sugar from the store doors of the shippers. None of the carriers furnished cartage to shippers of sugar but pretended to undertake to pay shippers for furnishing cartage for themselves. The allowances appeareO to be simply a continuance of a former rebate before rebates were made illegal and of an allowance made to sugar re- fining interests for routing the ship- ments over the lines of carriers, accord- ing, to a -percentage agreed upom by the latter. HELD, the allowance amounted to a rebate, was unlawful, and should he withdrawn. In Re Allowances for ALLOWANCES, §9 (a)— §10 (c) 61 Transfer of Sugar, 14 I. C. C. 619, 626, 630. IV. LEGALITY OF ALLOWANCES. §9. In General. (a) Allowances and divisions to tap lines recognized by the Commission, as common carriers must have a proper re- lation to the service performed and be such in amount as not to effect a rebate to the industry. The Tap-line Case, 23 I. C. C. 277, 295. (aa) Wherever an abnormal division is allowed to a railroad which is tied up wittt an industry, there results an indirect and hidden rebate to the ship- per, because of his ownership of the railroad. In Re Divisions of Joint Rates on Coal, 22 L C. C. 51, 55. (b) The 15th section of the Act as amended clearly implies that a just and reasonable allowance may be made to the owner of property transported when such owner renders a service connected with or furnishes an instrumentality used in the transportation. Federal Sugar Re- fining Co. V. B. & O. R. R. Co., 17 I. C. C. 40, 48. (bb) The provision in the tariffs re- quiring a return to defendant of the car within forty-eight hours as a condition precedent to the payment of an allcw- ance is unjust, unreasonable and unduly discriminatory. Nebraska-Iowa Grain Co. V. U. P. R. R. Co., 15 L C. C. 90. (c) The ownership by a shipper of a rail line which serves that shipper calls for the closest scrutiny to ascertain whether, through divisions or allow- ances, rebates are made to the shipping- owner. Crane R. R. Co. v. P. & R. Rv Co, 15 I. C. C. 248, 253. (cc) The delivery of goods to a carrier and the receiving of goods from a car- rier are duties devolving upon the shipper, for which the carrier cannot be compelled to pay, and for them to make allowances based upon the performance by shippers of services which shippers are legally bound to render for them- selves is a violation of the Act to Regu- late Commerce. In the Matter of Allow- ances for the Transfer of Sugar, 14 I. C. C. 619, 627. (d) In determining- whether a shipper is entitled to an allowance from a rail- road for services performed by the ship- per in moving cars between the storage tracks and the shipper's buildings and factories, no special weight is to be given to the fact that for a number of years the railroad actually paid the complainant for such service, since the question is one of general application and must be de- termined not by the practice of particular shippers, but by considerations applicable to all carriers. General Electric Co. v. N. Y. C. & H. R. R. R., 14 I. C. C. 237, 242. (dd) Reparation awarded because of failure to pay elevator allowances for loading out grain prior to August 28, 1906, in accord with rules and practices then in vogue, but not on file with the Commission. Rosjenbaum Grain Co. v. C. & E. I. R. R. Co., Unrep. Op. 298. §10. Transportation Service Performed by Shipper. See Tap Lines, §3 (1); Transporta- tion, §1. (a) Whether a company or person claiming to be a common carrier is a common carrier at all and for all pur-, poses is a question of fact, and whether the service performed for a particular person is a service of transportation or an industrial service is also a question of fact. The Tap-line Case, 23 I. C. C, 277. 292. (b) The fact that the rails, locomo- tives and cars of an industry have been turned over to an incorporated railroad company, owned and operated by the in- dustry or in its interest, does not divest those appliances of their character as a plant facility if such in fact is the case. If the rails were laid and the equipment acquired for the use of the industry as a facility in the process of manufacture and production, and are so used, the fact that some outside traflfic may be carried over the same rails does not modify the character of what is done over them for the industry. If in such a case the tracks and equipment are a facility of the plant and are so used in the process of manufacture, what is thus done for the controlling industry cannot be regarded as a service of transportation. It is clear that a division allowed by a public carrier out of the rate under such circumstances is a rebate to the industry. The test is, what is the real relation to the industry of the tap line. The Tap-line Case, 23 I. C. C. 277, 292. (c) The common ownership of an in- dustry and a short line serving it is not in itself sufficient to divest the railroad of its status as a common carrier. On 62 ALLOWANCES, §10 (d)— §11 (c) the other hand, the fact that the rails, locomotives and cars of an industry have been turned over to an incorporated raH- road company owned and operated by the industry or in its interest does not divest those appliances of their character as a plant facility if such in fact is the case. A line must be drawn at some point be- tween what is transportation and what is industry and between a facility of transportation and a plant facility or tool of the industry. Each case, however, must stand on its own facts. On the facts shown of record the service performed for the proprietary lumber companies by the following tap lines is not a service of transportation by a common carrier: Malvern & Freeo Valley Railway, Wilmar & Saline Valley Railroad, Arkansas & Gulf Railroad, Little Rock, Maumelle & Western Railroad, Beirne & Clear Lake Railroad, Mississippi, Arkansas & West- ern Railway, Bearden & Ouachita River Railroad, Arkansas Eastern Railroad, Blytheville, Burdette & Mississippi River Railway, Brookings & Peach Or- chard Railroad, Crossett Railway, For- dyce & Princeton Railroad, Roman & Southeastern Railway, Little Rock, Sheri- dan & Saline River Railway, L'Anguille River Railway, Ouachita Valley Railway, Southern Pine System, Black Bayou Rail- road, Bodcaw Valley Railway, Mill Creek & Little River Railway, Red River & Rocky Mount Railway, Woodworth & Louisiana Central Railway, Freeo Valley Railroad, Natchez, "Urania & Ruston Railway, Bernice & Northwestern Rail- way, Dorcheat Valley Railroad, Mangham & Northeastern Railway, Peach River Lines, Jefferson & Northwestern Railway, Beaumont & Saratoga, Angelina & Neches River Railroad. The Tap-line Case, 23 L C. C. 277. (d) What is a plant facility cannot also be a common carrier for the plant, and what is an industrial service cannot also be a service of transportation. The Tap-line Case, 23 I. C. C. 277, 298. §11. Transportation Facility. See Tap Lines, §3 (1); Transporta- tion, §1. (a) The lumber rate west of the Mis- sissippi River applies from the mill. In those cases where the mill is situated a reasonable distance of not less than 1,000 feet from the trunk line, that carrier may arrange with the lumber company to per- form the service for it of transportating the loaded cars from the mill to the trunk line, and may make a reasonable allowance to the . lumber company for such service under section 15. The Tap Line Case, 23 I. C. C. 549, 552, 553, 559. 568, 596, 599, 603, 605, 607, 608, 611. (b) Where a mill is distant more than three miles from a trunk line, and Is connected with the latter by a tap line not recognized by the Commission as a common carrier, no allowance or division may lawfully be made by a trunk line either to the lumber company or to its tap line. Such a lumber company, al- though using rails, stands in no better position under the law with resiiect to its lumber than does a lumber company that uses other means of delivering its lumber to a public carrier. Where a mill is more than three miles distant from a trunk line and is connected with it by a tap line organized as a common carrier and so recognized by the Commission, the mill is to be regarded as a shipping point equally with all other mill points in its rate group; and the lumber rate is to be regarded as in effect from the mill, the tap line being entitled to a division thereof, according to the extent of its participation in the through serv- ice under the through rate. The Tap Line Case, 23 L C. C. 277, 295. (c) Under their tariffs the public car- riers interpret the lumber rate as apply- ing from mills west of the Mississippi River, as far as three miles from their own lines. If a lumber company having a mill within that distance of a trunk line undertakes by arrangement with the trunk line to use its own power to set the empty car at the mill and to deliver it when loaded to the trunk line, it is doing for itself what the trunk line under its tariffs offers to do under the rate. In such a case the lumber company may therefore fairly be said to furnish a facility of transportation for which it may reasonably be compensated under section 15, whether its tap line is in- corporated or unincorporated. But an allowance under such circumstances is lawful only when the trunk line prefers for reasons of its own and without dis- crimination to have the lumber company perform the service. It is not lawful when the lumber company refuses to permit the trunk line to do the work. No allowance, however, ought to be made by a trunk line to a lumber company where the mill is within 1,000 feet of the trunk line. An allowance under such ALLOWANCES, §11 (d)— §12 (1) (a) 63 circumstances would be a mere device to effect an unlawful payment to the lumber company. The same rule would apply where a short switch track to the mill has been torn out or is still available, but not used, in order to give the ap- pearance of a longer haul to the mill over a spur or switch track constructed by the lumber company or by its tap line, to secure an allowance. The Tap Line Case, 23 I. C. C. 277, 294. (d) In the cases of the following tap lines it is held that they may receive as maximum allowances the divisions men- tioned and the switching charges pre- scribed: Saline River Railway, 2c per 100 lbs.; Warren & Ouachita Valley Rail- way, a switching rate of $2.50 per car from the Iron Mountain R. R. and 2c per 100 lbs. from the Rock Island R. R.; El Dorado & Wesson Railway, 2c per 100 lbs.; Thornton & Alexandria Railway, Ic per 100 lbs.; Doniphan, Kensett & Searcy Railway, a switching charge of $2.50 per car from the Iron Mountain R. R. and Ic per 100 lbs. from the Rock Island R. R.; Fourche River Valley & Indian Territory Railway, a switching charge of $1,50 per car; Prescott & Northwestern Railroad, $1.50 per car; Caddo & Choctaw Railroad, $1.50 per car; Memphis, Dallas & Gulf Railroad, over the Nashville Division only, the Iron Mountain may allow it a switching charge of $2 per car, the con- necting carriers at Ashdown may allow it 2c per 100 lbs.; Crittenden Railroad, 2c per 100 lbs. from the Rock Island and $3 per car switching from the Iron Mountain R. R.; De Queen & Eastern Railroad, $1.50 per car; Central Railway of Arkan- sas, I1/2C per 100 lbs.; Gulf & Sabine River Railroad, Ic per 100 lbs.; Sibley, Lake Bisteneau & Southern Railway, Ic per 100 lbs.; North Louisiana & Gulf Railroad, 2c per 100 lbs. on the products of the hardwood mill only, except when again milled or planed at Hodge, La.; Arkansas Southeastern Railroad, 2c per 100 lbs. from the Iron Mountain R. R. only; Red River & Gulf Railroad, $2 per car for switching from the Iron Mountain and 2c per 100 lbs. from the Rock Island and other trunk lines on the product of the mill at Long Leaf, La.; Tremont & Gulf Railway, from the Iron Mountain R. R. and the products of the Rochelle mill a switching charge of $1.50 per car, and on the product of various mills divisions of li^c to 2c per 100 lbs.; Nacogdoches & Southeastern Railroad, $1.50 per car for switching only from the Houston East & West Texas; Texas Southeastern Rail- road, $2 per car for switching, from tlie Houston East & West Texas and 2c per 100 lbs. from other trunk lines; Timpson & Henderson Railway, 2c per 100 lbs.; Shreveport, Houston & Gulf Railroad, li/^c per 100 lbs.; Groveton, Lufkin & Northern Railway, from the Missouri, Kansas & Texas Railway only, a switch- ing charge of $2 per car, and from other trunk lines 2c per 100 lbs.; Moscow, Camden & San Augustine Railway, l^^c per 100 lbs.; Trinity Valley & Northern Railway, Ic per 100 lbs.; Trinity Valley Southern Railroad, Ic per 100 lbs.; Caro Northern Railway, $2 per car; Butler County Railroad, $1.50 per car; Deering Southwestern Railway, l^^c per 100 lbs.; Mississippi Valley Railway, l^^c per 100 lbs.; Paragould & Memphis Railway, switching charges of from $2 to $3 per car; Salem, Winona & Southern Railroad, li/^c per 100 lbs.; Fernwood & Gulf Rail- road, a switching charge of $2.50 a car from the Illinois Central only and 2c per 100 lbs. from the New Orleans Great Northern R. R.; New Orleans, Natalbany & Natchez Railway, $1.50 per car for switching from two mills only; Alabama Central Railroad, l^/^c per 100 lbs.; Washington & Choctaw Railway, $1.50 per car. The Tap Line Case, 23 I. C. C. 549-650. §12. What Is not Transportation Serv- ice. §12. (1) Accessorial or Incidental Service. (a) Arbuckle Bros, operate their own property under a contract for the de- fendant carriers, as the carriers' Jay St. terminal in Brooklyn. Under their con- tract, Arbuckle Bros, carry their sugar to this terminal in their own lighters, re- ceiving an allowance therefor. Defend- ants are under no liability until the ton- nage is delivered to them in New Jersey. Two-thirds of the traffic handled through the Jay St. terminal by Arbuckle Bros, as agent for the defendant carriers is for the public generally. HELD, that in lightering their sugar to the Jersey shore and there delivering it to the defendants, Arbuckle Bros, perform a purely acces- sorial service towards their own ship- ments and merely incident thereto and do not perform a transportation service as agents of the carriers. It therefore may not be paid for by the defendants under section 15 of the Act, while refus- 64 ALLOWANCES, §12 (1) (b)— §12 (2) (cc) ing a similar allowance to another shipper providing a similar facility and performing the same service in the trans- portation of his property. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200, 209, 212. (b) The merchandising of grain is no part of the duty of a carrier and for car- riers to pay shippers for any of the op- erations of the merchandising is to make reductions from published rates by sub- terfuge. Gund & Co. V. C. B. & Q. R. R. Co., 18 I. C. C. 364, 367. (c) Defendant carrier's terminals "are located at Jersey City and all shipments made over its lines from across New York harbor must be lightered to its docks at that point. This service is per- formed by the defendant without cost to shippers. Complainant found it neces- sary to fill all the orders of its customers on the day on which they were received and defendant was unable to furnish barges and boats promptly enough to ac- complish this purpose, sometimes com- pelling complainant to wait three or four days. Complainant took the matter of lighterage into its own hands and per- formed the service on its own boats. It sought to recover 3c per 100 lbs. for this service. Some years after the shipments in question the defendant provided in its tariffs for the payment of 3c for this lighterage service when performed for the convenience of defendant, but at the time of shipment no tariff was in effect authorizing defendant to pay for light- erage performed by the shipper. HELD, under the facts disclosed, the complain- ant having performed such lighterage service for its own convenience and to meet the special requiremehts of its busi- ness, was not entitled to compensation. Barrett Mfg. Co. v. C. R. R., etc., Co., 17 I. C. C. 464, 466. (d) The storage of grain beyond the elevation period of 10 days and the mix- ing, weighing and inspection of the same are commercial services and are in no sense a part of elevation, as defined in the Act. In the Matter of Allowances to Elevators by the U. P. R. R. Co., 14 I. C. C. 315, 316. §12. (2) Operation of Plant Facility. (a) The lumber rate west of the Mis- sissippi River applies from the mill. In those cases where the mill is situated less than 1,000 feet from the trunk line that carrier may not lawfully make any allowance to the lumber company for hauling the loaded cars from the mill to the trunk line. The Tap Line Case, 2-3 I. C. C. 549, 552, 569, 576, 594, 597. 599, 601, 606, 608, 611, 618, 632, 641, 645, 646. (b) In the cases of the following tap lines it is held that they are mere plant facilities and not entitled to allowances, either as divisions or switching charges: Missouri & Louisiana Railroad, Saginaw & Ouachita River Railroad, Warren, Johns- /ille & Saline River Railway, Blytheville, Leachville & Arkansas Southern Rail- road, Gould Southwestern Railway, Memphis, Dallas & Gulf Railroad, as to the switch movement from Graysonia, Ark., only; Louisiana & Pine Bluff Rail- way, Mansfield Railway, Louisiana & Pacific Railway, Roosevelt & Western liailroad, Louisiana Central Railroad, Morth Louisiana & Gulf Railroad, as to all yellow pine mills only; Monroe & South- western Railway, Victoria, Fisher & Western Railroad, Ouachita & North- western Railroad, Lake Charles Railway, Louisiana Railway, Zwolle & Eastern Railway, Sabine & Northern Railroad, Nacogdoches & Southeastern Railroad, as to allowances from the Texas & New Orleans R. R. only; Gideon & North Island Railroad, Poplar Bluff & Dan River Railway, Kentwood & Eastern Rail- way, Kentwood, Greensburg & South- western Railroad, Liberty-White Rail- road, Natchez, Columbia & Mobile Rail- road. The Tap Line Case, 23 I. C. C. 549-650. (bb) The payment of allowances or divisions to a boat line, which is a mere plant facility of a salt company, is held to be an unlawful rebate. Co- lonial Salt Co. V. M. I. & I. L, 23 I. C. C. 358. (c) Where a tap line is merely a plant facility hauling logs to the mill, and the mill itself is situated on a trunk line, any allowance or division of rates made by the trunk line to the I'lmber company or the tap line is an unlawful rebate. 23 I. C. C. 552, 555, 587, 597, 599, 602, 606, 613, 632, 635, 641, 642, 645, 646, 649. (cc) Complainant, a large lumber corporation, operated a lumber road connecting its timber tract with the Central of Ga. Ry. under a contract whereby it received a division of 2c per 100 lbs. upon all traffic delivered to ALLOWANCES, §12 (2) (d) — (e) 65 the trunk line. It also carried freight for small competitors located on the tap line. Eventually an advance was made in the lumber rate of 2c per 100 lbs. by the trunk line and the divi- sion to the tap line was increased to 5c per 100 lbs. It is found that the reasonable cost of hauling the lumber of the tap line is 2c per 100 lbs., and that the advance in rate by the trunk line was unreasonable, HELD, that the tap line, so far as it was operated in the interests of the complainant, was a plant facility and not a common carrier. That oil account of the increase in the division of rates with the tap line it is apparent complainant did not pay the increased rate. Reparation denied. Kaul Lumber Co. v. C. of Ga. Ry. Co., 20 L C. C. 450. (d) Tap lines connecting lumber mills with the Cotton Belt were being allowed from 2 to 6c for hauls varying from practically nothing to 150 miles, leaving the Cotton Belt's net earnings as low as 4 to 8c for its haul to Fort Worth. It appeared that these tap lines were for- merly owned by the mill owners, but were subsequently incorporated and given the form of common carriers; that for the most part they reached only the forests owned by their stockholders; that while they held themselves out to serve the public as common carriers, there was in fact no public reached by them except a negligible amount of incidental traffic; that they did not publish and file tariffs as required by law, join in through rates with the railroads, file schedules of di- visions of rates, or keep accounts in ac- cordance with the system of accounts, prescribed by the commission for car- riers participating in interstate com- merce. These conditions were true with respect to tap lines generally over the country. HELD, that any allowance or division made to or with a tap line that is owned or controlled, directly or indi- rectly, by the lumber mill or by its offi- cers or proprietors and that has no traflic beyond the logs that it hauls to the mill, except such as it may pick up as a mere incident to its efforts to serve the mill as an adjunct or plant facility, is an un- lawful departure from the published rates. Readjustment of rates suggested, calculated to eliminate unlawful prac- tices and give shippers reasonable rates. (Separate opinion by Prouty, Comm'r.) Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 338, 345. (dd) Formerly defendant delivered loaded cars to complainant's exchange tracks at Catasauqua. Complainant con- structed tracks leading from the ex- change tracks into its yards, and sup- plied locomotives to draw the loaded cars into its yards, and return loaded cars of its own products. Later other indus- tries grew up beyond complainant's plant, and complainant extended its tracks to such industries and charged them a stipulated price per car for moving cars to and from defendants' terminal. Said other industries were allowed compensa- tion for this service which they secured from complainant. Subsequently com- plainant incorporated its private railroad and demanded that defendants make it an allowance for hauling cars back and forth between complainant's yards and its team tracks. HELD, the service was not one which the defendants owed com- plainant a duty to perform; that de- fendants might properly allow to other industries compensation for the hauling of cars to their plants, since such serv- ice was merely the equivalent of the service rendered by defendants in plac- ing cars on complainant's exchange tracks; and that complainant was not entitled to compensation for the services rendered by its railroad, such service be- ing in the nature of a plant facility. Crane Iron Works v. Central R, R. Co., 17 I. C, C. 514, 518-520. (e) Complainant, General Electric Com- pany of Schenectady, N. Y., filed a com- plaint to determine its right to receive an allowance from defendant railroads for services performed by complainant in moving empty and loaded cars between the storage tracks and complainant's fac- tories and shops. Its factory and shop yard occupied some 180 acres of land, and there were about 140 buildings. It had constructed three miles of storage tracks, together with connecting switch tracks of standard gauge, aggregating 12 miles in length and occupying some 23 acres of land; and in addition thereto constructed seven miles of narrow gauge electric tracks crossing and recrossing the standard gauge system. The switch tracks leading to complainant's industries were from 400 to 500 feet long. Defend- ants had no right, and under the cir- cumstances it was impossible for them to make use of complainant's network of tracks, which were under the exclusive control of complainant. Complainant used its own locomotives and electric 66 ALLOWANCES, §12 (2) (f)— §14 (b) motors in moving loaded and unloaded cars in its yard, and performed about 112,000 carload movements a year. De- fendants had been long accustomed to move cars free of charge between their tracks and factories of other shippers at Schenectady. For some 12 years defend- ants, under an agreement, had been al- lowing compensation for the services per- formed by complainant. HELD, defend- ants owed no duty to move the cars over complainant's network of tracks and complainant was not entitled and could not be permitted to receive compensa- tion therefor. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242, 243, 244. (f) Complainant, manufacturer of soda products, constructed an elaborate sys- tem of tracks leading from defendant's tracks to complainant's various factories and buildings. Complainant's equipment consisted of 11.8 miles of track within its plant, six locomotives and 175 cars, and handled over its system of tracks some 850,000 tons of its products yearly. This track system was entirely in control of complainant and it was wholly imprac- ticable for defendant to perform the service of switching cars thereon without serious interference to the conduct of complainant's business. HELD, follow- ing General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 1. C. C. 237, that defend- ant owed no duty to move cars about complainant's yard, and that complainant was not entitled to recover for the serv- ices performed and the instrumentalities furnished by it in connection with the movement of cars in its said yard. Sol- vay Process Co. v. D. L. & W. R. R. Co., 14 L C. C. 246, 249. V. REASONABLENESS OF ALLOW- ANCES. §13. In General. (a) An allowance of 50c per bale for compression of cotton is not excessive or discriminatory. Merchants' Storage Co. V. 1. C. R. R. Co., 17 I. C. C. 98, 102. (b) On a shipment of poles from La- porte, Minn., to Louisville, Ky., the tariff of one of the carriers contained no pro- vision for allowance for the weight of the stakes. The other carriers involved and carriers generally in said territories made such allowance. Defendants ad- mitted it should have been made. HELD, reparation should be awarded. Duluth Log Co. V. M. & I. Ry. Co., 15 L C. C. 192, 195. (c) On shipments of lumber from Hines, Minn., to Inwood, la., Parkston, S. D., Charles City, la., and Chillicothe, Mo., on flat or gondola cars, defendants' tariffs made no allowance for stakes fur- nished by complainant. Subsequent to the shipments in question a tariff was filed making such allowance. Defendant admitted the unreasonableness of the rates charged to the extent of such al- lowance. HELD, reparation should be awarded on the basis of the allowance made for stakes in the subsequently pub- lished tariff. Kaye & Carter Lumber Co. V. C. M. & St. P. Ry. Co., 14 L C. C. 604, 605. VI. DAMAGES AND REPARATION. See Advanced Rates, §22 (b) ; Claims; Reparation. §14. In General. (a) Where in a suit for damages by a shipper against a railroad for unjust dis- crimination contrary to the Act to Regu- late Commerce in making allowances for services to competing shippers the plain- tiff, in its statement of claim, alleges the loss of a stipulated sum per ton on the coal shipped by it, it is error to award damages on the basis of the amount of the allowance made to the favored com- petitor. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed. 403, 410. (b) Complainants asked that the de- fendant be required to provide by pub- lished rule that shippers of grain may, when occasion makes it necessary, cooper the car that is furnished and re- cover therefor an allowance not to ex- ceed $5, including the allowance for grain doors. It appears that shippers of grain from Washington and Oregon are fur- nished cracked and old box cars by de- fendant for the carrying of grain, which they repair themselves in order to save time. HELD, that it is the primary duty of a railroad to furnish equipment that is usable and in the event that the car furnished is unfit the shipper should re- ject it and call for another. Allowances of the kind requested are of a dangerous character. The carrier cannot tell what the actual amount of material and labor used by the shipper was. The car is loaded immediately upon being repaired and is sent to some far distant point. There is no means of adequately check- ing the expenditure of the shipper, so ALLOWANCES, §14 (d)— §15 (a) 67 that it becomes extremely easy to turn such allowances into real rebates. It is a safer and more reasonable practice to curtail such allowances than to extend them, since the Commission cannot in any way police such repairs, and it is a far wiser policy for the carriers to repair their own equipment than to farm it out to shippers. A rule of this character could not be limited to the repair of cars for a shipment in bulk of grain without establishing a precedent as to allowances for other commodities. Bal- four, Guthrie & Co. v. O. W. R. R. & Nav. Co., 21 L C. C. 539, 540. (d) For unloading grain shipped to them at Omaha and Council Bluffs from points on defendant's line in Nebraska, complainants are entitled to recover ele- vator allowances at the tariff allowance then in force, l^c, the case being gov- erned by Nebraska-Iowa Grain Co. v. U. P. Ry. Co., 15 I. C. C. 90. Merriam & Homquist v. U. P. R. R. Co., 16 I. C. C. 337. (e) Complainants at Omaha and Coun- cil Bluffs sought to recover reparation of li/4c per 100 lbs. for unloading grain into elevators from defendant's cars. Prior to June 29, 1908, the Commission held that the practice of granting said allow- ance had become illegal. All the cars in question were unloaded prior to June 29, 1908. The effective date of the order of June 29, 1908, had been postponed and the allowance was still legal at the time of the hearing. HELD, complainants were not barred from recovering by the decision of June 29, 1908. Reparation awarded. Nebraska-Iowa Grain Co. v. U. P. Ry. Co., 15 I. C. C. 90, 94. Modified in other respects, U. P. R. R. v. Updike Grain Co., 222 U. S. 215; 32 Sup. Ct. 39, 56, L. ed. 171. (f) Defendant withdrew all elevation allowances from complainant at Atchison, but extended free services to complain- ant's competitors at Coffeyville, Leaven- worth and Kansas City in elevating, cleaning, mixing and clipping grain. As a result, complainant was compelled to suspend business for about a year. It sought to recover damages for interest and depreciation of its elevator plant, insurance, operating expenses, salary of president and secretary, loss of business, and loss of prestige and good-will. HELD, the Commission had no jurisdic- tion to award such damages. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 157. (g) Where a defendant railroad has agreed with a shipper to allow it a cer- tain sum for services performed by the shipper in moving cars over switching tracks connecting the storage tracks with the shipper's buildings and factories, the Commission has no authority to enforce a specific performance of such a contract, or to award damages for the breach thereof. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. (h) During a shortage of cars suitable for the shipment of hay, defendant offered to furnish complainant cattle cars for that purpose upon the agreement of complainant to clean the same and line them with paper. Complainant did so and sought to recover the expense in- curred thereby. HELD, reparation should be denied. Laning-Harris Coal & Grain Co. V. St. L. & S. F. R. R. Co., 13 L C. C. 148, 151. (i) Complainant, a short line railroad, carried traffic between La Salle, 111., and La Salle Junction, 111., 6i/^ miles; making connections at the latter point with de- fendant. November 1, 1906, defendant informed complainant that it would not pay complainant the allowances pre- viously in effect, except on traffic on which complainant named through rates to or from La Salle. No provision for allowances to complainant was made in defendant's tariffs. Complainant asked an order compelling defendant to pay it for traffic hauled between such points, upon which no joint through rates were established and asked that allowances be made to it on the basis of the agreed compensation in effect prior to Novem- ber 1, 1906. HELD, the power of the Commission to award reparation does not extend to the division of rates between connecting carriers. Claims ex contractu are not recognized by the Commission; it cannot order the payment of money for services performed, nor for a debt due one carrier from another on account of joint rates for a joint service. Repara- tion denied. La Salle & Bureau County R. R. Co. V. C. & N. W. R. R. Co., 13 I'. C. C. 610, 612. VII. AS REBATES. §15. In General. (a) If there is a holding out as a com- mon carrier for hire, and if there is an 6S ALLOWANCES, §15 (b)— §16 (b) ostensible and actual movement of traffic for the public for hire, the status of a common carrier exists, whether the hold- ing out is by a company or by an indi- vidual. But such a holding out and the existence of an actual traffic is not con- clusive in all cases. Where the holding out is in furtherance of a plan to secure unlawful advantages and the alleged car- rier is able to pick up some traffic that is incidental to that purpose, it must be re- garded simply as a cloak or device to effect unlawful results. The Tap Line Case, 23 I. C. C. 277, 292. (b) The lumber rate west of the Mis- sissippi River applies from the mill. In those cases where a short switch track to the mill from a trunk line has been torn out or is still available but not used in order to give the appearance of a longer haul to the mill over a spur or switch track constructed by the lumber company or by its tap line to secure an allowance, any compensation allowed for such service by the trunk line to the lumber company or its tap line is unlaw- ful. The Tap Line Case, 23 L C. C. 549, 586, 589, 632, 646. (c) Wherever an abnormal division is allowed to a railroad which is tied up with an industry, there results an indi- rect and hidden rebate to shippers, be- cause of their ownership of the railroad In Re Divisions of Joint Rates on Coal, 22 L C. C. 51, 55. (d) The mere fact that a railroad is owned by a corporation which also owns the stock of the largest shipper over it, and that it was originally organized and built for the purpose of doing the work of that shipper, is not controlling against its being held a common carrier, al- though such a situation calls for the closest scrutiny of all charges and prac- tices to ascertain whether there is undue discrimination through divisions or al- lowances which are the equivalent of re- bates to the shipping owner. Crane Rail- road Co. V. P. & R. Ry. Co., 15 L C. C. 248, 252. (e) Defendant railroads and steamship lines made a "transfer allowance" of 2c per 100 lbs. on shipments of sugar from New York. The rail carriers restricting it to shipments from refineries and the water carriers restricting it to shippers coming from certain designated terri- tory to their wharves. On account of this condition the refineries were the only shippers of sugar from New York. The allowance purported to cover the cost of cartage to the terminals of the carriers. It was in fact paid where no cartage at all was involved, and where the carriers by means of floats and switch tracks received the sugar from the store doors of the shippers. None of the carriers furnished cartage to ship- pers of sugar, but pretended to undertake to pay shippers for furnishing cartage for themselves. The allowances appeared to be simply a continuance of a former re- bate before rebates were made illegal, and of an allowance made to sugar re- fining interests for routing the shipments over the lines of carriers, according to a percentage agreed upon by the latter. HELD, the allowance amounted to a re- bate, was unlawful and should be with- drawn. In Re Allowances for Transfer of Sugar, 14 L C. C. 619, 627, 630. (f) Defendant carrier allowed to a grain company %c per 100 lbs. for grain which remained stored in the elevator beyond the elevation period of 10 days. Said grain was mixed, treated, stored, weighed and inspected in the elevators In such a manner as to enhance its value. HELD, the allowances amounted to an undue preference and in effect an unlawful rebate, and should be forbidden. In the Matter of Allowances to Elevators by the U. P. R. R. Co., 14 I. C. C. 315, 316. VIM. CRIMINAL LIABILITY. §16. In General. See Special Contracts, §3 (b). (a) Plaintiff coal operator and its competitors had their private track con- necting with defendant's line. Defendant used its locomotive in hauling cars to and from plaintiff's mine over plaintiff's private track, while the competitors fur- nished their own motive power, for which defendant allowed them from 10 to 15c per ton. In a suit for unjust discrimina- tion, defendant offered no evidence to show the money value of the services rendered by the locomotives of the fa- vored shippers. HELD, defendant was liable in damages for giving a rebate in violation of the Act to Regulate Com- merce. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed. 403, 410. (b) A grain company shipped grain from Minneapolis to Milwaukee con- signed to its agents at Milwaukee, who ALLOWANCES, §16 (c)— ALTERNATIVE RATES, I (b) 69 paid the lawfully published rate. De- fendant railroad paid to the grain com- pany an allowance not published in its tariffs of i/^c per bushel for elevation services at Minneapolis. Papers were presented to the defendant by the grain company as vouchers to secure the re- funding of the elevation charge which contained the receipted freight bills paid by the consignees in Milwaukee. There was evidence of a pre-existing agreement between the railway company and the grain company for the refund of eleva- tion charges. HELD, in a criminal prose- cution iinder the Elkins Act, there was sufficient evidence to go to the jury to show that the railway company knew that the payment of freight bills by the consignees was made in behalf of the grain company. Wisconsin Central Ry. Co. V. U. S., 169 Fed. 76, 78. (c) Defendant railroad on grain ship- ped from Minneapolis charged the legal rate of 7i/^c per 100 lbs. and refunded to the shipper l^c per bushel for elevation services, performed by the shipper at the beginning of transportation. Defendant's published tariff contained no such allow- ance. Defendant knew that the freight charges had been paid by the consignee before it made payment of the allowance. HELD, defendant was criminally liable under the Elkins Law. Wisconsin Cen- tral Ry. Co. V. U. S., 169 Fed. 76, 78. (d) Defendant carrier on interstate shipments of grain from Minneapolis through Wisconsin to Duluth, when such grain was destined to lake points such as Buffalo, granted to all Minneapolis shippers without discrimination an allow- ance of i/^c per bushel for elevation at Duluth, thereby reducing the lawfully published rate of 5c in effect between those cities. Other competing carriers did the same thing and defendant took this course to secure its share of the business. The published tariffs did not provide for such allowances. The de- fendant's duty as a carrier terminated upon the delivery of the grain at Duluth, and it owed no duty as a carrier to ele- vate the same at that point. Defendant, however, acted in good faith in the belief that it was not violating the statute. HELD, defendant was criminally liable under the Elkins Act for granting a rebate. C. St. P. M. & O. Rv. Co. v U. S., 162 Fed. 835, 839. (e) Under the Elkins Act which re- quires that the act of rebating must be wilful in order to constitute a criminal offense, it is not sufficient to support a contention against a carrier that it know- ingly granted a rate by means of an ele- vation allowance lower than the pub- lished rate without proof that the de- fendant acted in bad faith. C. St. P. M. & O. Ry. Co. V. U. S., 162 Fed. 835, 842. ALTERNATIVE RATES. I. ESTABLISHMENT AND REASON- ABLENESS. See Commodity Rates, §3 (c), (d); Tariffs, §7 (i). (a) Complainant sought, in connection with a mixed carload shipment of iron beds and wire mattresses from Marion, Ind. (where its factory is located), to Oakland, Cal., to have defendants embody in their tariffs an alternative clause, in connection with their rates on mixed car- load shipments, to the effect that if the aggregate charge upon the entire ship- ment is less on the basis of the carload rate and weight for one or more of the articles, and the actual weight at the less- than-carload rate for the other articles, than at the mixed carload rates, such rates should be applied in the place of the mixed carload rate. HELD, no evi- dence having been offered to show that the rate upon the mixed shipment or the rates upon the articles when shipped separately were unreasonable, upon the record as presented, the Commission is not convinced that the defendants should be required to establish the alternative rule. Marion Iron & Brass Bed Co. v. T. St. L. & W. R. R. Co., 22 I. C. C. 272. (b) Complainant attacked the specific commodity rate of 15.5c per 100 lbs., minimum 30.000 lbs., on machinery C. L., Chicago to Collinsville, 111. At the time of movement there was in effect a sixth class rate of 16.6c per 100 lbs., minimum 24,000 lbs. No evidence was adduced by complainant tending to prove the com- modity rate and higher minimum to be unreasonable. At the hearing it rested its case on the ground that defendant should have provided for the alternative use of the two rates with their different minima so that the shipper might have been charged whichever rate, at its cor- responding minimum, would have made the lower charge. HELD, carriers may, if they chose, publish both class and commodity rates in the same tariff and under Rule 7b of tariff circular 18-A, 70 ALTERNATIVE RATES, I (c)— ANY-QUANTITY RATES, I (f) subject to certain conditions specifically set forth in the rule, they may provide for the alternative use of such rates by including in different sections of one and the same tariff such class and com- modity rates. The fact that the two rates so published take different mini- ma does not modify this rule. The rule referred to was adopted by the Commis- sion at the request of many shippers and carriers and it frequently contributes to simplicity and clearness in tariff con- struction. Its use is permissive. No re- quirement is upon the carriers to so con struct their tariffs and the failure to do so in this case raised no presumption that the charge assessed under the com- modity rate and minimum was unreason- able because in excess of the charge, which would have accrued under the class rate. Complaint dismissed. Good- man Mfg. Co. V. P. C. C. & St. L. Ry. Co., 21 I. C. C. 95. (c) The method of stating rates by an alternative clause giving the shipper the right to elect a combination rate when that one is cheaper than the class rate, is an indefinite method of stating rates that the Commission condemns. Rail- road Commission of Nevada v. S. P. Co., 19 I. C. C. 238, 240. (d) On a carload of hand agricul- tural implements weighing 25,000 lbs. shipped from Omaha, Neb., to Denver, Colo., complainant was assessed a through commodity rate of 80c on a minimum weight of 30,000 lbs. At the time of shipment there was in force a third-class rate of 80c on a minimum of 20,000 lbs., under which such implements had formerly moved between said points, but which, on account of the commodity rate, was not then available to shippers. Later the Western Classification was amended and the minimum was in- creased to 24,000 lbs. At present, by a proper rule in defendant's tariff namimg the commodity and the class rate, the alternative use of the two rates is provided for, thus making available the minimum weight of 24,000 lbs. applying in connection with the class rate. HELD, that the charges were unreasonable. Reparation awarded on the basis of actual weight of the shipment. George Tritch Hardware Co. v. C. R. I. & P. Ry. Co., 18 I. C. C. .71, 72. (e) A provision in a tariff that where the combination of locals makes lower than the established through rate it may be used, is not permissible. Phil- lips Co. V. G. T. W. Ry. Co., Unrep. Op. 590. ANY-QUANTITY RATES. I. REASONABLENESS AND APPLICA- TION. See Evidence, §54 (d); Narrow Gauge Railroads, I (c) ; Reason- ableness of Rates, §40 (n). §56 (a), §84 (a); Reparation, §8 (t). (a) It is manifestly unjust to apply for the last thousand miles of through business, loading to approximately 27,- 000 pounds, a local rate intended to cover any-quantity movement with an actual average loading of less than one- third that amount. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 163. (b) When a carrier instead of pro- viding a carload and less-than-carload rate provides only an any-quantity rate, the presumption is that it is higher than a carload rate and lower than a less-than-carload rate would be. Mutual Rice Trade & Devel. Ass'n, Houston, v. I. & G. R. R., 23 I. C. C. 219, 224. (c) A througjj carload rate should not be based on an any-quantity rate. Mutual iace Trade & Development Ass'n V. I. & G. N. R. R. Co., 23 I. C. C. 219 224. (d) While an any-quantity rate con- sidered by itself may be reasonable, a through carload rate may not always be fairly based upon it. Mutual Rice Trade & Development Ass'n v. I, & G. N. R. R. Co., 23 L C. C. 219, 224. (e) Replacing an any quantity rat? by a carload and L. C. L. rate is not unlawful. Jouannet v. A. C. L. R. R. Co., 23 L C. C. 392. (f) On cotton moving by rail and ocean from points in Georgia and Ala- bama to New York City, the defendants made joint any-quantity rates subject to a rule providing that on shipments of less than 24,000 lbs. a lighterage charge of 8c per 100 lbs. with a minimum charge of $6 should be assessed when the light- erage service was performed by the steam- ship company; on shipments of 24,000 lbs. or more, the rate named included light- erage service. Complainants contended that the material factor in determining the lighterage charge should be the quan- ANY-QUANTITY RATES, I (g)— ASSOCIATION, I (c) 71 tity delivered on one lighter or in one lighterage service, and that a charge made for lighterage of smaller quantities than 24,000 lbs. is unreasonable, if sev- eral shipments aggregating more than 24,000 lbs. arrive on one steamer. HELD, that individual shipments by dif- ferent shippers cannot lose their identity simply because they are shipped on one steamer; that the lighterage charge im- posed is on the principle of a lower rate on carload than on less-than-carload quantities and therefore must be consid- ered reasonable. Weld & Co. v. Ocean S. S. Co., 21 I. C. C. 581. (g) The any-quantity rate rests upon sound public policy. It enables the small shipper to compete on fairly equal terms with his powerful competitor, thereby counteracting in a measure the prevalent tendency toward monopoly. While the Commission has consistently sustained the legality of a differential between car- load and less-than-carload rates upon the ground that the difference in the cost of service justifies a reasonable difference in charge, it is highly significant that no order has ever been issued requiring that an any-quantity basis be superseded. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 401. (h) The Commission is not justified in ordering a reduction of an any-quan- tity rate to 39c per 100 lbs. upon a commodity worth from 15 to 30c per lb. Schmidt & Sons v. M. C. R. R. Co., 19 I. C. C. 535, 538. (i) On boots and shoes between Bos- ton and D^s Moines there were no car- load rates, all traflfic moving under the any-quantity rate. HELD, the question of the unit of transportation is one for the carriers, and so long as they publish a reasonable any-quantity rate, the mere fact that they publish a lower rate in car- loads on other commodities does not jus- tify the Commission in ordering a carload rate upon the articles in question. Ap- plication for joint rates denied, following Greater Des Moines Committee v. C. R. I. & P. Ry. Co., 17 I. C. C. 54. Bentley & Olmsted Co. v. L. S. & M. S. Ry. Co.. 17 L C. C. 56. (j) Where carriers have in effect a uniform rate per 100 pounds for any quantity, which rate applies uniformly to all shippers, a different rate applied to carloads than that applied to less-than- carloads will not be ordered when such differential will have a tendency to in- crease the rate on less-than-carloads, and permit the large dealers to drive the smaller dealers out of the market and cut off the consumers and small dealers from purchasing at distant markets in less- than-carload lots. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 595. (k) One of the benefits, if not one of the objects, of an "any-quantity rate" is that it leaves the carrier with some free- dom in the use of its equipment. Such a tariff gives the shipper no right to de- mand a car of a given size. Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 272. (1) Under a local any-quantity rato the carrier may use any available equip- ment, notwithstanding the fact that the tariffs of a connecting lice provide a minimum weight under a carload rate. Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 272. ASSOCIATION. I. RIGHT TO SUE. See Long and Short Hauls, §11 (a). (a) Under section 5 of the Act of June 18, 1910, c. 309 (36 Stat. 543), creating the Commerce Court, an association of grain dealers of Nashville and the Nash- ville Board of Trade, the leading com- mercial organizations of the city, are competent parties to intervene by peti- tion to the Commerce Court to enjoin the enforcement of an order entered by the Interstate Commerce Commission requir- ing defendant carriers from granting to Nashville rebilling or reshipping priv- ileges so long as they deny said privilege to Atlanta, Columbus, and other cities. Nashville Grain Exch. v. U. S., 191 Fed. 37, 89. (b) The Interstate Commerce Act au- thorizes incorporated boards of trade of cities and associations of like character to apply to the Interstate Commerce Com- mission for relief, and such corporations and members representing such associa- tions may likewise apply to the court for relief from injuries unlawfully infiicted by the Interstate Commerce Commission. Peavey & Co. v. U. P. R. R. Co., 176 Fed. 409, 415. (c) A voluntary improvement associa- tion consisting of business men of Coun- cil Bluffs, la., is a competent party com- 72 ASSOCIATION, I (d)— ASSORTING PACKAGES, (c) plainant to assail as unreasonable and discriminatory the fare charged passen- gers for a haul between Omaha and Coun- cil Bluffs, by an interurban railway con- necting said cities over a toll bridge crossing the Missouri River. West End Improvement Club v. O. & C. B. Ry. & Bridge Co., 17 I. C. C. 239, 240. (d) A commercial association is a proper party to maintain a petition for relief from the exaction of an illegal or unreasonable charge or for any violation of the law's requirements. California Commercial Ass'n v. Wells, Fargo & Co., 16 I. C. C. 458, 463. (dd) An unincorporated association has a sufficient legal status to be entitled to demand service of an express com- pany and under section 13 of the Act to file a coiaplaint for the latter's failure to furrash the same. California Com- mercial Ass'n V. Wells, Fargo & Co., 14 I. C. C. 422, 425. (e) Complainant Bureau was organ- ized as follows: An office was maintained by its manager. Members became such by entering into written contracts with the Bureau by which they paid a stipu- lated annual fee. The Bureau undertook to perform certain services in the ad- justment of disputes with railroads and in the prosecution of necessary proceed- ings. HELD, such Bureau was a volun- tary association within the meaning of section 13 of the Act and capable of in- stituting proceedings as to rates before the Commission. Forest City Freight Bu- reau V. Ann Arbor R. R. Co., 13 I. C. C. 118, 121. ASSORTING PACKAGES. See Additional Services. (a) Services rendered by the defend- ant in providing a place where consign- ments of perishable produce can be han- dled and in assorting into lots the pack- ages marked with the names of the sin- gle dealers to whom they are consigned is a thing of value to the shipper for which he may properly be required to pay. Davies v. I. C. R. R. Co., 17 I. C. C. 186, 188. (b) In Wholesale Fruit & Produce Ass'n V. A. T. & S. F. Ry. Co., 14 I. C. C. 410, the Commission held that on con- solidated carloads of fruit consigned to Chicago the carriers should remove same from the cars to the station platforms and distribute the fruit in lots to the va- rious owners and might charge one cent per hundred pounds for this service. HELD, under this order the carrier dis- charged its obligation by removing the- fruit to the platform and assorting the packages in piles for the various owners, and that it was not bound to deliver the same to the owners by checking off the packages as called for. Davies v. I. C. R. R. Co., 17 I. C. C. 186, 188. (c) Complainants, relying on the de- cision in Wholesale Fruit & Produce Ass'n V. A. T. & S. F. Ry. Co., 14 I. C. C. 410, asked that the order in said case requiring railroads at Chicago to bring packages of fruit and vegetables to the car door for unloading be extended to package freight of all kinds, and fur- ther asked that the order with respect to the unloading of fruit and vegetables be applied to St. Paul and Minneapolis. It appeared that at Chicago the fruit and vegetable traffic was very con- gested; these products being shipped in packages of estimated weight, it was necessary for the carriers to count said packages upon unloading; and that the men stationed to do this could per- form the service of carrying the pack- ages to the car door without additional expense to the carrier. At IMinneapolis and St. Paul different conditions pre- vailed. Fruit and vegetables were al- lowed to be kept in the cars for a longer free time than at Chicago and were unloaded at no definite time, but at whatever time the shipper desired. To compel the carriers at those points to bring the packages to the car doors for unloading would impose a hardship on them in compelling them to have men ready at all times to perform such service. At said cities no custom as fixed and definite had grown up for the performance of said service as at Chicago. Dealers in fruit and vegeta- bles at St. Paul and Minneapolis were not in competition with those at Chi- cago. HELD, the rule applying to Chi- cago requiring the carrier to assist in urloading fruit and vegetables should not be applied to other package freight; that on account of different conditions at INIinneapolis and St. Paul, carriers at those points should not be required to perform such service with respect to fruit and vegetables. Wholesale Fruit and Produce Ass'n v. A. T. & S. F. Ry. Co., 17 L C. C. 596, 600-602. ASSORTING PACKAGES (d)— AUCTION COMPANY (a) 73 (d) Where the owners of packages of fruit and vegetables shipped to Chicago conEolldate same in carloads in so-called granger cars, the carrier discharges its full duty by placing the carload upon its team tracks and bringing the pack- ages to the car door for delivery; it is under no obligation to furnish any place for the sorting of these packages and making delivery to the different individuals to whom they are addressed, and in Chicago, where the conditions of the business require such assortment, a carrier may charge Ic per 100 lbs. for said additional service. Wholesale Fruit & Produce Ass'n v. A. T. & S. F. Ry. Co., 14 I. C. C. 410, 420. ATTORNEYS' FEES. See Courts, §11 (j); Overcharges, §6; Procedure Before Commission, §9. (a) In a suit against the initial car- rier to recover for loss of goods, no au- thority is given to tax attorneys' fees by section 8 of the Act to Regulate Com- merce of February 4, 1887. A. C. L. R. R. Co. V. Riverside Mills, 219 U. S. 186, 208, 31 Sup. Ct. 164, 55 L. ed. 167. (aa) The provision in section 16 of the Act allowing the recovery of an attorney's fee in a suit in the courts to enforce an order of reparation of the Commission is rot unconstitutional as being class legislation. Chicago, Burl- ington & Quincy R. R. Co. v. Feintuch, 191 Fed. 482, 489. (b) In a suit to enforce an order of the Commission awarding reparation for diverting a shipment from the speci- fied route, plaintiff is entitled to an allowance for an attorney's fee on ac- count of the appellate proceedings, in addition to the allowance made by the Circuit Court. Louisville & Nashville R. R. Co. V. Dickerson, 191 Fed. 705, 712. (bb) The provision in' section 8 of the Act allowing attorneys' fees to a shipper in a suit against the initial carrier for loss of goods is valid. Riverside Mills V. A. C. L. R. R. Co., 168 Fed. 990, 992. (c) Under section 8 of the Act the damages therein contemplated and the attorney's fee provided for can only be recovered in a suit brought in a court. Washer Grain Co. v. M. P. Ry. Co., 15 T. C. C. 147, 152. (d) The Commission has no authority to assess costs or to allow attorneys' fees. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 154. (e) In an action in a state court to recover the excess exacted by a car- rier over and above the published inter- state rate, plaintiff is not entitled to re- cover an attorney's fee under any provi- sion of the Interstate Commerce Act, granting in certain cases the right to shippers to recover such fee, since the suit is not to recover a penalty from the carrier for violation of the Inter- state Commerce Act, but is in the nature of an action for money had and received by a carrier collecting a greater amount of charges than it was entitled to receive. Kansas City S. Ry. Co. v. Tonn (Ark., 1912), 143 S. W. 577, 581. (f) The provisions of the Act, as amended June 29, 1906, and April 13, 1908, relating to attorney's fees do not give the right to recover such fees in a state court in a suit for loss or dam- age in transit. Blair & Jackson v. Wells. Fargo Co. (la., 1912), 135 N. W. 615, 620. AUCTION COMPANY. See Exclusive Contracts (c) ; Termi- nal Facilities, §3 (j). (a) Defendant granted the exclusive right to a company to conduct its busi- ness as an auctioneer of fruit and vege- tables on its terminal premises at St. Louis. Complainant, a rival company, asked for the same facilities. HELD, that the granting of the exclusive right to maintain a fruit auction company was somewhat analogous to the station res- taurant, news stand, barber shop, and other conveniences which travelers arriving at a station may make use of if they so de- sire. They are enterprises that outsiders are frequently permitted to engage in at railroad terminals, not as a part of the service that the carrier renders to the public, but as something that adds to the general convenience of the public. The telegraph, telephone, transfer and cab offices ordinarily found in passenger stations rest upon the same basis. They add to the convenience of the passenger before the transportation by the carrier has commenced or after it has been com- pleted without adding to the service un- dertaken by the carrier for the traveler under its published rates. It is a matter that is wholly outside and apart from the service of transportation performed by 74 BACK HAUL— BILLS OF LADING defendant, and is a reasonable use for the defendant to make of its property. Southwestern Produce Distributers v. Wabash R. R. Co., 20 I. C. C. 458, 460, 462. BACK HAUL. See Facilities and Privileges, §7; Long and Sliort Haul, §1 (xy), §5 (f), (II), (00), §7 (i), §10 (b), (I); Reconsignment, §3 (I); Routing and iVIisrouting, §7 (rrr). BAGGAGE TRANSFER. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. EXCLUSIVE CONTRACT TO SO- LICIT. I. CONTROL AND REGULATION. See Exclusive Contract, (a); Spe- cial Contract, §2 (h). §1. Jurisdiction of Commission. (a) The Commission has no jurisdic- tion over local baggage transfer agen- cies. Cosby V. Richmond Transfer Co., 23 I. C. C. 72, 74. (b) If a carrier undertook to make delivery of passenger baggage, and to issue baggage checks at residences for the rate of fare stated in its tariffs, this would be a service over which the Com- mission would have jurisdiction, and which must in all regards become sub- ject to the mandates and prohibitions of the Act, even though the service in whole or in part was not performed by the carrier itself but was rendered by some agency under contract or other wise. But in merely granting the ex- clusive privilege of soliciting on its trains, and issuing baggage checks at residences, to one baggage transfer com- pany, a carrier does not undertake an additional service to the public. The carrier's duty to the public as to baggage begins and ends in the baggage room pro- vided by it. Baggage transfer is prior or subsequent to the transportation serv- ice, as to which the carrier owes a duty to the public, and is therefore outside the jurisdiction of the Commission. Cosby V. Richmond Transfer Co., 23 I. C. C. 72, 75. (bb) The Commission has no juris- diction over alleged unreasonable charges of a transfer company where the railroad carrier does not undertake to make delivery of passenger baggage at residences for a rate of fare stated in a tariff. Cosby v. Richmond Trans- fer Co., 23 L C. C. 72, 74. (c) The Commission has no jurisdic- tion to order a railroad to give a local baggage transfer company an opportunity to bid against another one for the privi- lege of soliciting on trains, any more than it would have power to compel a railroad to place its fruit venders' privi- lege up at auction, for neither one is transportation under the Act, and over neither one has the Commission juris- diction. Cosby V. Richmond Transfer Co., 23 I. C. C. 72, 77. (d) The soliciting of baggage on trains by a transfer company is no part of the transportation service. Cosby v. Richmond Transfer Co., 23 I. C. C. 72, 74. (e) Unless the railroad carrier under- takes to make delivery at residences a transfer company is the agent of the passenger in transporting the latter's baggage. Cosby v. Richmond Transfer Co., 23 I. C. C. 72, 76. II. EXCLUSIVE CONTRACT TO SO- LICIT, (a) Although defendant carriers give to one transfer company, which is controlled by their ofRceis, the exclusive privilege of soliciting baggage transfer On their trains without any monetary con- sideration, there is no undue discrimina- tion against a competitive company which is willing to pay for such privi- lege, because defendants owe no duty to provide such service either under statute, common law or custom, and have performed what is required of them when they accept baggage at their depot, transport it and make delivery at desti- nation upon their own terminals. Cosby V. Richmond Transfer Co., 23 L C. C. 72. BASING POINTS AND LINES. See Evidence, §5; Discrimination, §3 (L); Equaiization of Rates, §4 (4) (li); Passenger Fares and Facilities, §3; Proportional Rates, I (c) ; Rea- sonableness of Rates, §2 (1), §28 (p), (q); Routing and IVIisrouting, §4 (mm). BILLS OF LADING. I. CONTROL AND REGULATION. §1, Jurisdiction of commission. §2. Recommendation of certain forms. II. DUTY OF CARRIER TO ISSUE. §3. Rail-and-water transportation. §4. At transit points. §5. One lading for several ship- ments. BILLS OF LADING, §1 (a)— §4 (a) 75 III. CONSTRUCTION. §6. In general. §7. Statement of weight. §8. Statement of shipping point. §9. Conflicting provisions. (1) Between rate and route. (2) With tariff. IV. LIMITATION OF LIABILITY. See Export Rates and Facilities, II; Routing and Misrouting, §3; Through Routes and Joint Rates, I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Interstate Commerce, §3 (a). (a) The Commission has authority to consider and determine the reasonable- ness of regulations and practices in re- spect of issuance, form and substance of bills of lading, and to determine and pre- scribe what regulations and practices are just and reasonable. Shaffer & Co. v, C. R. L & P. Ry. Co., 21 I. C. C. 8, 10. (b) The Commission in submitting standard bills of lading does not order their adoption, since such an order would exceed its authority. In the Matter of Bills of Lading, 14 L C. C. 346, 349. §2. Recommendation of Certain Forms. (a) The standard forms of bills of lad- ing (copies of which are set out in 14 I. C. C. 351-355), recommended by the Commission, are designed for use with respect to miscellaneous freight and gen- eral merchandise, and as a substitute for the bills now in use in the carriage of such property, but are not intended to supplant special bills of lading issued on particular commodities requiring ex- ceptional provisions, such as live stock, for example, and perhaps perishable property. In the Matter of Bills of Lad- ing, 14 I. C. C. 346, 349. (b) The Commission, in submitting standard bills of lading, does not attempt to indicate just what commodities are to be excepted from their operation, nor to determine ths special provisions suited to any excepted commodity. In the Mat- ter of Bills of Lading, 14 I. C. C. 346, 349. (c) The Commission, in submitting standard bills of lading for Official Clas- sification territory, expects carriers sub-, ject to the Act outside such territory to adopt the same to the fullest extent pos- i sible. In the Matter of Bills of Lading, 14 L C. C. 346, 349. (d) The approval of the standard bills of lading by the Commission does not im- ply aceptance by it of any construction of the Carmack amendment at variance with its apparent purpose and intent, nor does such approval preclude it from pass- ing independent judgment upon any pro- vision in these bills of lading, which may be drawn in question in future proceed- ings. In the Matter of Bills of Lading, 14 I. C. C. 346, 350. II. DUTY OF CARRIER TO ISSUE. See Through Routes and Joint Rates, §12. §3. Rail-and-Water Transportation. See Export Rates, II; Foreign Com- merce, §1 (f). (a) There is no legal obligation on a rail carrier to give a through bill of lad- ing covering movement by water beyond its line. Such practice is, however, of great advantage to shippers, and if given in the name of one boat line, should be given in the name of others who are similarly circumstanced. A railroad may entirely destroy the export trafllc of a port by refusing to issue two bills of lad- ing; and to say that it may exercise this great power wantonly and arbitrarily is contrary to the spirit and letter of the Act. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 L C. C. 417, 424, 425. (b) If a rail carrier makes a rate and issues a bill of lading for ship-side de- livery at a port, that rate, and a similar bill of lading, should be open to all who conform to the reasonable conditions of the carriers. A railroad cannot adopt a policy or practice which will put its fa- cilities and its rates at the exclusive service of one line of steamships, or of one set of shippers patronizing that line. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 428, 427. §4. At Transit Points. (a) When carriers are parties to a milling-in-transit privilege, it is proper for the inbound carrier to issue and sign the bills of lading for the outbound move- ments, because, the records of the in- bound shipments being in its possession, in no other way could the transit privi- lege be protected against abuse. Brook- Rauch Mill & Elevator Co. v. St. L., L M. & S. Ry. Co., 21 L C. C. 651, 652. 76 BILLS OF LADING, §5 (a) — (e) §5. One Lading for Several Shipments. See Allowances, §14 (h); Cars and Car Supply, §7; Demurrage, §6; Minimums, $8 (b), (d), (e) ; Re- frigeration, §3 (h); Tariffs, §7 (ee), (ggg)- (a) Complainant shipped 169 barrels of sugar from New Orleans, La., to Sioux City, la.; 104 barrels were loaded into one car and 65 into another, and one bill of lading was taken for each car. Freight charges were calculated uron a weignr of 38,361 lbs. for the car containing 104 barrels, and upon the minimum carload weight of 33,000 lbs. for the car contain- ing 65 barrels, the actual weight of which was 24,205 lbs. Complainant contended that the charge upon the second car should have been based upon the actual weight. Rule 8 of the Western Classifi- cation applied: "When the minimum car- load weight or more of one article is shipped in one day by one consigner to one consignee covered by one bill of lad- ing the established rate for a carloa':! shall apply on the entire lot, although it may be less than two or more full car- load lots ." HELD, the rule was in- applicable because of complainant's action in securing a bill of lading for each car. Scudder v. T. & P. Ry. Co., 22 L C. C. 60, 61. (b) Complainant shipped sugar, New Orleans, La., to Sioux City, la. He had a sufficient number of barrels to make mo-re than one carload and less than two carloads. He took two bills of lading for the shipments and was assessed a carload rate on one and the less-than-car- load rate on the other. Western Classifi- cation contained a rule as follows: "When the minimum carload weight or more of one article is shipped in one day, by one consigner to one consignee, cov- ered by one bill of lading, the established rate for a carload shall apply on the en- tire lot, although it may be less than two or more full carload lots." HELD, under the classification, to obtain the applica- tion of the carload rate at the actual weight of the part carload, the entire consignment must move upon one bill of lading. Complainant's action in secur- ing a bill of lading for each car rendered the rule inapplicable and each carload became a separate shipment subject tJ the prescribed minimum rate per car. Reparation denied. Scudder v. T. & P. Ry. Co., 22 I. C. C. 60. (c) Two separate bills of lading were taken out by complainant covering two cars of machinery shipped on the same day to the same consignee. Under rule 8 of the Western Classification, defend- ants assessed charges thereon on the basis of the minimum carload weight for each, HELD, that under the rule the established rate for a carload can only apply on the entire lot when the ship- ments are covered by one bill of lading, that this rule having been considered and approved in prior cases cannot be held unreasonable, and the charges were properly assessed. Goodman Mfg. Co. v. C, B. & Q. R. R. Co., 21 I. C. C. 583. (d) Complainant had shipped to it two carloads of news printing paper, Los Angeles, Cal., to Grand Rapids, Wis., under a rate of 75c per 100 lbs. The first car weighed 51,000 lbs., the second car 23,000 lbs., shipped different days under separate bills of lading. The minimum weight for each car was 30,000 lbs. Rule 8 of Transcontinental Freight Bureau tar- iff I. C. C. 889, in force when shipments were made, provided that when minimum carload weight or more is shipped in one day by one consignor to one consignee covered by one bill of lading, the estab- lished rate, for a carload shall apply on the entire lot, although it may be less than two or more full carload lots. The consignor was notified of this rule, but loaded the cars in the manner he did in- stead of loading two cars to the full minimum, or shipping them on the same day under one bill of lading. HELD, complainant not entitled to reparation on second car on difference between actual weight and minimum weight. Consoli- dated Water Power Co. v. S. P., L. A. & S. L. R. R. Co., 20 L C. C. 169. (e) Complainant shipped a steam shovel from Coffeyville, Kan., to Toledo, O., under two bills of lading, one cover- ing the steam shovel on its own trucks, and the other the crane, dipper and other parts. The shovel on its own trucks, weighing 66,200 lbs., was assessed the class rates of 33c per 100 lbs., and the parts, weighing 21,900 lbs., were assessed 60c per 100 lbs. on a minimum of 30,000 lbs. The two bills of lading were is- sued at the insistence of the carrier's agent. The class E rates, under West- ern Classification, was applicable to loco- motives, extension pile drivers, log-load- ing machines, portable steel-rail saws, snowplows, steam wrecking cranes, der- ricks, etc., hauled in train or on trucks furnished by shippers, but the parts when shipped separately take a higher rate. HELD, the shipment should have BILLS OF LADING, §6 (a)— §9 (1) (c) 77 moved under one bill of lading, and a shipper cannot be required to pay higher charges on account of the issu- ance of the two bills of lading because he yielded to the demand of the car- rier's agent. The initial carrier, the M. P. Ry., should establish for the trans- portation of parts of steam shovels nec- essary to make a complete article, when loaded in a car furnished by the carrier accompanying the steam shovel hauled on its own wheels or on trucks furnished by shipper when shipped on one bill of lading from one consignor to one con- signee, a rate not higher than the rate on steam shovels hauled on their own wheels. The rates on steam shovel parts should have been assessed on actual weight and on that part of the shipment reparation is awarded. Vulcan Steam Shovel Co. v. M. P. Ry. Co., 18 I. C. C. 265. III. CONSTRUCTION. §6. In General. See Demurrage, §5 (b); Export Rates and Facilities, III (b); Re- leased Rates, §4 (b) ; Routing and Misrouting, §2 (c), (d), (i). (a) The bill of lading became, upon passage of the Act, little more than a receipt for goods to be transported, into which could be incorporated nothing ob- noxious to the law. Blinn Lumber Co. v. S. P. Co., 18 I. C. C, 430, 432. (b) The bill of lading should plainly state the liability assumed. Any other course of business will inevitably result in giving the shipper in many cases a de- fective contract. Wyman, Partridge & Co. V. B. & M. R. R., 15 I. C. C, 577, 582. §7. Statement of Weight. See Switch Tracks and Switching, §8 (c); Weights and Weighing. (a) When a car is weighed at origin and the weight stated in the bill of lad- ing, the shipper has a right to rely on that weight, subject to correction only by proof of the correct weight. Duluth Log Co. V. C, St. P. M. & O. Ry. Co., 16 I. C. C. 38, 39. §8. Statement of Shipping Point. (a) Where no evidence is submitted by defendant carrier to shov.' thai the point of origin stated in the bill of lad- ing was not the actual point of origin, the charge must be assessed according to the rate from the point of origin therein stated. Duluth Log Co. v. C, St. P., M. & O. Ry. Co., 16 I. C. C. 38, 39. §9. Conflicting Provisions. §9. (1) Between Rate and Route. See Routing and IVIisrouting, §3. (a) Complainant shipped a carload of apples from Sioux City, la., to Chicago, from thence reconsigned to New Drleans, La., which was assessed a combinarion rate of 62c. Contemporaneously there was in effect via the C. & N. W. Ry,, the initial carrier, and the C. & E. I. R. R.. conflicting joint through rates of 42c and 39c. The reconsignment order Ir. part read: "Route via Illinois Central. Protect through rate of 42c cwt." HELD, the obligation rests upon the carrier's agent to refrain from executing d bill of lading which contains provisions that are contradictory or impossible of exe- cution. When, therefore, the rJite and route are both given by the shipper in the shipping instructions and the rate given does not apply via the route desig- nated, it is the duty of the carrier's agent to ascertain from the shipper whether the rate on the route given in the ship- ping instructions shall be followed. This not having been done, reparation is awarded, on the basis of 39c. Gibson Fruit Co., V. C. & N. W. Ry. Co., 21 I. C. C. 644, 645. (b) It is the affirmative duty of a car- rier to apply the rate named in the bill of lading when a route carrying such a rate is available, and in case there is an inconsistency between a rate and a route when both are named in the bill of lading furnished by the shipper, the carrier should request of the shipper which one is to be followed, and if the initial carrier fails to inquire of the shipper and routes the freight over a route which carries a higher rate than shown in the bill of lad- ing, it is responsible for misrouting. Block-Pollak Iron Co. v. H. E. & W. T. Ry. Co., 19 I. C. C. 505. (c) A rate inserted by the consignor in the bill of lading was not applicable over the route named by him, but was applicable over another route. HELD, that the initial carrier, instead of for- warding the shipment over the route specified, which carried a higher rate, should have forwarded it over the route by which the specified rate applied. Is- bell-Brown Co. v. G. T. W. Ry. Co., Un- rep. Op. 226. 78 BILLS OF LADING, §9 (2) (a)— BLANKET RATES, §1 (a) §9. (2) With Tariff. See Tariffs, §11. (a) A provision in a bill of lading be ing outside the tariff announcement, was in no sense a limitation upon the right of the shipper to have his commodity transported in the manner, and at the rate, specified in the rate schedule. Woodward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 172; decision of Com- mission sustained, 187 Fed. 874; 191 Fed. 705. IV. LIMITATION OF LIABILITY. See Released Rates, §2 (b), §3 (a), (b). (a) A printed bill of lading provided that the carrier should not be liable for any loss or damage, except that -result- ing from the fraud or gross negligence of the company or its servants, and should not in any event be held liable beyond the sum of $50, "at not to exceed which sum the said property is hereby valued, unless a different value is herein- above stated." This bill of lading was delivered to plaintiff to cover a shipment of automobiles valued at $15,000. Plain- tiff was familiar with the contents of the bill of lading, was asked by the defend- ant's agent whether he wished to put a valuation on the goods, and declined to do so. He knew that if he did so. the amount of freight payable would be in- creased. HELD, the fixing of the value lower than the real value was not in violation of section 10 of the Interh:aie Commerce Act. Pierce Co. v. Wells, Fargo & Co., 189 Fed. 561, 565. (b) The provision in the uniform bill of lading that "the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the I ona fide invoice price, if any, to the con- signee, including the freight charges, if prepaid) at the place and time of ship- ment under this bill of lading, unless a lower value has been rep-resented in writ- ing by the shipper or has been agreed upon or is determined by the classifica- tion or tariffs upon which the rate is based, in any of which events sucli lower value shall be the maximum amount to govern such computation, whether o"- not such loss or damage occurs from negli gence," makes no attempt to exempt the carrier from liability for the full value of the commodity transported nor does it in any way limit the carrier's liability to a sum less than the value of the com- modity. It is merely a contract betu-een the parties fixing the time, place and' manner of arriving at the value of the property, and is reasonable in its na ture. Shaffer & Co. v. C, R. I. & P. Ry. Co., 21 I. C. C. 8. BLANKET RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. LEGALITY OF GROUP RATES. §2. In general. §3. Justification. §4. Public benefit §5. Custom. IIL EXTENSION OF ZONE, §6. In general. §7. Equalizing advantage of lo- cation. §8. Proximity to established group. §9. Grading rates. §10. Differentials. IV. REASONABLENESS. §11. Of group. §12. Of individual rate. V. DISCRIMINATION. §13. In general, VI. REMEDY FOR UNLAWFUL GROUPING. §14. In general. §15. Scope of complaint. VII. EVIDENCE. §16. Burden of proof. §17. Extent of zone. §18. Comparisons. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. (a) While under the Act, as amended by the Hepburn Act of June 29, 1906, the Interstate Commerce Commission may have power to enter upon a plan looking toward a system of rates wherein the rates, for longer and shorter hauls, will taper downward according to dis- tance, provided such tapering is both comprehensive and symmetrically ap- plied, it has no power, by the use of differentials, to artificially divide up the country into trade zones, tributary to given trade and manufacturing centers so as to give the Commission power to pre- determine what the trade and manufac- turing centers shall be. Orders of the Interstate Commerce Commission in 14 I. C. C. 299 and 15 I. C C. 555, enjoined. (Baker, J., dissenting.) C, R. I. & P. Ry. Co. V. I. C. C, 171 Fed. 680, 683. etANkEf RAtEg, §i (b)— 12 (j) 79 Reversed 218 U. S. 88, 36 SuJ). Ct. 651. 54 L. ed. ^46. (b) Tlie Cdmrnissioii doubts whether it has authority to preserifee a blanket rate from the Pacific to the Atlantic coast. Arlington Heights Fruit Ex- change V. S. P. Co., 22 I. C. C. 149, 155. (c) If the court should rule that the Commission has no authority to estab- lish a blanket rate in a broad territory, it would seem to follow that the carriers are without such authority. Lawrence- Wardenburg Co. v. S. P. Co., 20 I. C. C 6^8, 63§< (d) The Commissioii has not the aut^ioi-ity to make rates tipOn shch a fcasis as to make the ratfe tb Rfeno from Denver the same as fr6m B6stoh. With- out doubt the commodity rStes made to the coast terminals are reasonable from a great portion of eastern defined terri- tory, but a governmental authority may not exercise the latitude in fixing a rate blanket which the carriers themselves have exercised. Railroad Commission of Nevada v, S, P, Co., 19 I, C. C. 238, 255. II. LEGALITY OF GROUP RATES. §2. In General. (a) Group rates frequently are more just and promote healthy competition. It is the almost universal custom to create groups of mines, giving to all these mines the same rate, even though the distance may be different. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 164. (b) Blanket system under which Texas points take same rate as New Orleans to Pacific coast not found unlawful. All rates to the Pacific coast are blanketed. Mutual Rice Trade &• Development Ass'n v. I. & G. N. R. R. Co., 23 I. C. C. 219, 223, 224. (c) Considered solely as a group, the area covered by the rate here com- plained of (grouped points ranging from 316 miles to 432 miles distant from typical producing point) is not too ex- tensive, nor is the rate unlawful as applied to complaining points, the dis- tance to which is only 25 or 35 miles less than, the average to all points in group to which commodity involved ac- tually moved. Thropp v. P. R. R. Co., 23 I. C. C. 497, 499. (d) Slight differerKV3S in distance are 'Often and propei^j^ dis^,,;^garded in nam.- ing tates, and the Conimissioii hag ©ftea approved blanket rates coverlflg wid« ar^as, hUt always with the feservaticwi either that ilo oh6 wats objecting 0r thai a Substantial reasofl lot that rate ad- justment tad been shoWfl. Transporta- tioh Bureau of Wichita t. Si L. & S. F, R. R. Ccy., 23 1 C. G. 679, 680\ (e) No competitive conditions reauir^ maintenance of a 50c rate on wool front Chicago to the East. TraUgott Schmidt & Song y. M. C. R. R. Co., 23 h C. C 684, 687. (f) The voluntary #»teBsion of rea^ BOnable rates to points mttcli more dis^ tant in not of itself unlawful. Jfoniiwest- ern Leather Co. v. O. R. R. & .% Co., 21 I. C. C. 66, 67. (g) The Commission has often ap- proved blanket rates. It undoubtedly should, in so far as it consistently can, approve suc& a rate upon citrus and de- ciduous frUlt»' fr6m California. That fea- ture of tlie rate is highly satisfactory to the grower, and bfihg^s^ this article into more general use at remote points than would otherwise be. possible. In passing: upon the reasonableness of the blanket rate the Commibr«i6h must undoubtedly ofl'set the rate to the ti^afer. point agam&t that to the more distant t^^Hif, but whem the application of such a *|^2^f^^^^^^ results in imposing uiijust auvt flftreason- able transportation charges at l^^ *^^^f^ point this fact cannot be ignored y'^^f. cused simply because a rate less thax? ^^' just is granted at the more distant points. Commercial Club of Salt Lake City v. A. T. & S. P. Ry. Co., 19 L C. C. 218, 226. (h) A blanket adjustment that ig- nores the geographical location of pro- duction cannot be maintained. Fergu- son Saw Mill Co. V. St. L. I. M. & S. Ry. Co., 18 I. C. C. 396, 399. (i) Blanket rates are largely made with respect to business as distinguished from transportation conditions, and is done with a reasonable disregard of dis- tance and with close attention to com- mercial conditions; Avery Manufactur- ing Co. v. A. T. & S. F. Ry. Co.,, 16) I. C. C. 20, 24. (j) Complainant, at Hattiesburg;. Miss., attacked the rates generally, andl especially those on grain, grain prod'r- ucts and packing-house products, from: all directions to Hattiesburg, Miss., as compared with those to New Orleans, La., Mobile^ Ala., Gulfpor^t, Natchez,^ 80 BLANKET RATES, §2 (j) Vicksburg, Jackson and Meridian, Miss. Jackson and Meridian lie on an east and west line 96 miles apart. Hatties- burg lies southeast of Jackson and southwest of Meridian, 90 miles from the former and 85 miles from the latter. From Hattiesburg to Gulfport is about 70 miles. The N. O. & N. E. R. R. with its connections made a lower rate from Cincinnati to New Orleans than to Hattiesburg, the traffic to New Orleans being hauled through Hatties- burg. The I. C. R. R. with its con- nections made a lower rate from St. Louis to Gulfport than to Hattiesburg, the traffic being hauled through Hatties- burg. The N. O. & N. E. and the A. & V. R. Rs. hauled traffic from New Or- leans to Meridian and to Jackson at lower rates than from New Orleans to Hattiesburg, this traffic also being hauled through Hattiesburg. The rail- roads leading to the gulf ports when built were obliged to compete with the rates via the Mississippi River and. following the precedent set by the steamboat lines, established from north- ern points the same rates to Vicksburg and important landings between Vicks- burg and New Orleans as to New Or- leans. The rates from such points to New Orleans and Mobile were for the same reason made the same. The rates to Gulfport from such points were the same as to New Orleans and Mobile in order to enable Gunport to compete with those cities. The M. & O. R. R. in connection with the A. &, V. R. R. hauled traffic from St. Louis through Meridian to Jackson at the same rate that the M. & O. R. R. charged to Me- ridian. The A. G. S. Ry. and connec- tions and the A. & V. R. R. hauled traffic from Cincinnati through Meridian to Jackson at the same rate as to Meridian. The I. C. and the A. & V. R. Rs. hauled traffic from St. Louis or Cairo through Jackson to Meridian at the same rate as to Jackson. The rates from these northern points to INIeridian and to Jackson were lower than to Hat- tiesburg, although the distance to Jack- son through Meridian was substantially the same as to Hattiesburg through Meridian, and the distance to Meridian through Jackson was substantially the same as to Hattiesburg through Jack- son. Furthermore, the A. & V. R. R., between Jackson and Meridian, was owned by the N. O. & N. E. Ry., the line running from Meridian to Hatties- burg. The G. & S. L R. R. from Jack- son to Hattiesburg was controlled by the I. C. R. R. The relationship of rates at Jackson and Meridian was of long standing. It appeared that the M. & O. R. R. would maintain from the gulf and from St. Louis to Meridian as low rates as the L C. R. R. maintained to Jackson; and for the same reason the L C. R. R. would maintain at Jackson as favorable rates as the M. & O. R. R. maintained at Meridian. The rates of the A. G. S. Ry. and its connections from Cincinnati to Meridian had to be made with relation to the rates from St. Louis to Meridian; and if this line was to participate in any traffic from Cincinnati to Jackson it was compelled to haul it to Jackson at the same rate as it received to Meridian. The M. & O. R. R. making the rate from St. Louis to Me- ridian equal to the I. C. R. R. rate from St. Louis to Jackson, the I. C. R. R. and its connection, the A. & V. R. R., were compelled to make the same rate to Me- ridian as to Jackson. Hattiesburg was of as much commercial importance as Meri- lian and Jackson, although its growth was comparatively recent. On grain from St. Louis to Vicksburg, New Or- leans or ^Mobile the rate was 12c, which, added to the rate of 7c from Vicksburg to Hattiesburg, made a rate of 19c to the latter point. The rate from St. Louis to either Meridian or Jackson was the Vicksburg rate of 12c, plus 21/^c, or 14i^c, to which was added the N. O. & N. E. R. R. differential of 5c. making a total of 19i^c to Hattiesburg. On packing-house products the rate was 35i^c to Meridian or Jackson, to which was added oc, making 'a rate of 40i/4c to Hattiesburg. The rates from the East to Hattiesburg were made by add- ing the N. O. & N. E. R. R. differentials to the rates from the East to Meridian. Complainant demanded that Hatties- burg be grouped with Meridian and Jackson. HELD, the grouping of Vicks- burg, Natchez, New Orleans, Gulfport and Mobile was a proper one; that the grouping of Shreveport, Alexandria and Monroe, located west of Vicksburg, was also a proper and well established one; that Jackson and Meridian, as a group, might be defended for the same reason applying to the other groups; and that while defendants might voluntarily add Hattiesbrug to the Jackson-Meridian group, the Commission could not find as a matter of law that Hattiesburg BLANKET RATES, §3 (a)— §4 (bb) 81 must b€ so grouped with Jackson and Meridian in view of the peculiar com- petitive conditions long existing between Jackson and Meridian. Commercial Club of Hattiesburg v. A. G. S. R. R. Co., 16 I. C. C. 534, 545-546. §3. Justification. (a) It may be questioned whether car- riers should ordinarily be permitted by the mere form in which they elect to publish their tariffs to ordain that any business shall be transacted at a particu- lar point, as by constructing their tariffs so that the rates on corn break at the Ohio River. Suffern Grain Co. v. I. C. R. R. Co., 22 I. C. C. 178, 181. (b) When carriers carry a blanket rate extending several hundred miles in breadth almost up to the doors of an important consuming point, they can with difficulty establish the lawfulness thereof. Sawyer & Austin Lumber Co. V. St. L. I. M. & S. Ry. Co.. 21 I. C. C. 464, 466. (c) Chief justification for a blanket rate is that it places all producers on the same footing at a market. Ferguson Saw Mill Co. V. St. L. I. M. & S. Rv Co., 18 I. C. C. 396, 398. §4. Public Benefit. See Classification, §3 (b) ; Evidence, §64'/2 (a); Reasonableness of Rates, §2 (bb), (dd), §10 (m), §401/2. (a) It frequently happens that group rates are the most just and promote in the highest degree healthy competition. In Re Transportation of wool, hides and pelts, 23 I. C. C. 151, 164. (b) It is by no means certain that postage-stamp rates, as applied to the distribution of the products of the Pa- cific Coast states, are not upon the whole for the general public good. Arlington Heights Fruit Exchange v. S. P. Co., 22 I. C. C. 149, 156. (bb) In 19 L C. C. 148, the Commis- sion held that the rate on lemons from southern California to territory east of the Rocky Mountairs should not ex- ceed $1. The Commerce Court in A. T. & S. F. Ry. Co. v. U. S., 190 Fed. 591, enjoined this order on the ground that the Commission in fixing this rate was not attempting to determine a reasonable rate, but was endeavoring to protect California lemon growers against Sicilian competition. The Commission now points out as the evidence upon which it based its former decision, that the carriers for parts of two years prior to the rendition of the former opinion and for the entire preceding six years had voluntarily maintained a rate of $1 on lemons; that the car- riers had for the better part of eight years voluntarily maintained a rate on lemons, at first 25c, and subse- quently 15c, lower than that contem- poraneously in effect on oranges; that in its former decision it stated at con- siderable length the various elements in the evidence entering into a deter- mination of the reasonableness of the rate on oranges; that it intended the evidence relating to oranges to apply to the question of rates on lemons; that the carriers in the former case attempted to explain the lower rate in the past as being established for the purpose of meeting competition from Sicily; that the average haul on lemons was some 500 miles less than on oranges; that a much smaller percent- age of lemons than of oranges moved under the expense of refrigeration. The Commission in addition points out that it deems the orange rate of $1.15 an extremely liberal one; and that on ac- count of the shipment of lemons under ventilation instead of under refrigera- tion, the cars may be loaded to a mini- mum of 34,000 lbs. instead of to the former minimum of 26,200 lbs., thereby making the per car earnings at a rate of $1 amount to $340, as against earn- ings of $301.30 per car at the $1.15 rate under the former minimum. With re- spect to the holding of the Commerce Court that the Commission had no authority to prescribe a blanket rate extending from the Rocky Mountains east, the Commission points out that the carriers themselves requested the rate to be fixed on the blanket plan. Under the blanket system the producers are given the widest possible market; the carriers obtain a certain amount of long distance business at remunerative rates which they would not otherwise have; and the freight does not so far enter into the cost of the articles to the consumer, as to impose any notice- able burden upon any section of the country. To establish graded rates at this time would be to break up the blanket rate system which is highly satisfactory to all parties concerned. HELD, the former $1.15 rate was un- reasonable and should not exceed $1. BLANKET RATES, §4 (c)— §6 (b) Reparation awarded. (Clark, Comm'r, concurring in part.) Arlington Heights Fruit Fxchange v. S. P. Co., 22 t. C. C. 149, 154. (c) Group rates, particularly on such a commodity as coal, are advantageous to the public, the carriers, and the mine owners alike. American Coal Co. v. B. & O. R. R. Co., 17 I. C. C, 149, 155. (d) Blanket or group rates in many cases are of great advantage to the pub- lic without serious injustice to any in- terest, though there is of necessity more or less disregard of distance and varying degrees of inequality. Chicago Lumber «^ Coal Co. V. Tioga Southeastern Ry. Co., 16 L C. C. 323, 334. §5. Custom. (a) In the past Spokane rates from St. Paul have applied on the Great Northern Ry. as far west as Avery, 111 miles from Spokane, ard upon the Northern Pacific R. R. as far west as Ken- newick, 149 miles. The Northern Pacific R. R. has a branch line to Pendleton and has maintained at Pendleton the Spokane rate from St. Paul. HELD, that the rates established by the Com- mission to Spokane should be applied by the Great Northern Ry. and Northern Pacific R. R. to those points at which the Spokane rate has been maintained In the past. City of Spokane v. N P. Ry. Co., 19 I. C. C. 162, 177. (aa) In transportation of low-grade commodities that move in large quanti- ties it is a long-established custom to group or blanket a number of stations or a large expanse of territory. Kansas Citv Transportation Bureau v A T & S. F. Ry. Co., 16 I. C. C. 195. 204. ' (b) It is not uncommon to make large groups of distant points. Moise Bros. 5'?0,^556^''-'-^^-^^-^-'^^^-C-C- in. EXTENSION OF ZONE, §6. In general. (a) All grouping for rate piirposes is necessarily more or less arbitrary"^ Grou. n1n.Hf."r'"^ "^^"^ '^^ appearance of fpe Vpf ?i,'T^ P^^^t ^"st acro.s the ime. Yet the Ime nnist be drawn some- JliZI' Z'l^^ grouping abandoned oZ% established, groups should not be lightlv or unnecessarily disturbed. Clyde Coal Co. V. P. R. a Co.. 23 I. C. C. 135, 138 (^a) The Extension of trunk lihe rat^s to p<3ints where such conditions do not exist, is disapproved. Corpora- tion Commission of N. C. v. N. & W. Ry. Co., 19 I. C. C. 303, 309. (b) The Moundiville cOal district liis pear Wheding. W. Va., just east of th© Ohio River. The eastern Ohio dlstriet lies near Wheelihg webt of thfe fiver. The differential in favor of the eastertt Ohio district and againfet the MoundSville district Wai §e Per tbn on vessel cai-gO shipmfelits to Lorain and Sandusky, 3c on vessel fuel to Sandusky, ahd 8e Oii vfe§- sel fuel to Lorain. To ail other poiijt^ west and hofthwest, the eastern Ohio district fehjoyed a differential of 25c p§r ton lower than the rates from the Moundsville district. The Moundsville district enjoyed lower rates to points east than the eastern Ohio district, but its coal was not suitable for eastern markets. Complainant asked that the Moundsville district be included in the eastern Ohio district and en- joy the same rates, the former to give up its advantages in rates to eastern points. It appeared that to grant com- plainants' demand would also requir© f n extension of the Ohio district to include the Fairmount, Pittsburgh and other mines lying north, east and south of the Moundsville district. The distance from the Moundsville district to the points in question was greater than from the Ohio district. The expense of maintaining a bridge over the Ohio River was involved. The Ohio River had been the boundary line for rate-making for many years, and' the mines, including those in the; Moundsville district, were developed while this, as a boundary, was in exist- ence. Complainant entered the field' knowing of the existence of the differ- ential. To grant complainant's demand' would involve all the rate adjustments; from the bituminous coal fields of Ohio;, Pennsylvania and West Virginia. HEI^D, the system of rate making by joining various points into a given group, and establishing the same rate from each point in the group to any given destina-. tion has long been followed, and haS' contributed to the development of the^ natural resources of the country. It has. served to put various producers of a given product in the same territory on an equality as to products destined to. any common point of consumption. Nec- e^'sarily a group territory must have definite boundary lines, and when once they have been established, their exten-. BLANKET RATES, §7 (a) — (aa) 83 sion should not be forced unless clearly warranted by the facts and circumstances in each case presented. Complaint dis- missed. Hitchman Coal & Coke Co. v. B. & O. R. R. Co., 16 I. C. C. 512, 520, 521. §7. Equalizing Advantage of Location. See Equalization of Rates, §1 (e), §3, §4 (4) (aa), §6 (h), (v), (dd); Evidence, §2 (b), (c) ; Long and Short Haul, §10 (b); Through Routes and Joint Rates, §8 (b). (a) The bulk of the rice crop of the United States is produced in Texas, Louisiana and Arkansas, and New Or- leans has been the leading milling and marketing point. The milling interests for Houston and Texas mill cities attacked the rates on clean rice from Texas mill- ing points to the Southeast, to Central Freight Association territory, to Illinois territory, and to the Pacific Coast terri- tory, as discriminatory against them when compared with the corresponding rates from New Orleans. To the South- east the through rates were combinations made of a local carload rate of 15c from Houston, and Texas points east thereof, or 19c from Texas points west thereof, to New Orleans, and in most instances a local any-quantity rate from New Or- leans. To Central Freight Association territory (east of the Illinois-Indiana state line) there were joint rates applying from Houston, which were 10c on carloads, and 20c on less-than-carloads. higher than the corresponding rates to New Orleans. To Illinois territory the rates from Houston were 5c on carloads, and 10c on less-than-carloads, higher than from New Orleans. To the Pacific Coast the rates from Houston were the same as from New Orleans. New Orleans is on the average about 150 miles nearer to Illinois points, and about 200 miles nearer Central Freight Association territory points than are the Texas milling centers. Houston is 350 miles nearer the Pacific Coast than New Orleans, but the rice rates, like all other rates to the Pacific Coast, are blanketed, so that all Louisiana and Texas points have the same rate to' all coast markets. In hauls to the Pacific Coast only one carrier is involved, while in hauls from Houston to the Southeast at least two carriers participate. The average haul from the rice belt to the Coast approximates 2,000 miles. The rates from Texas points to the Southeast were combination rates ba&ed on New Or- leans or other Mississippi gateways. It appeared that each of the local rates in- cluded in the through rates had been lowered by competition either of markets or of other carriers. The local rates from New Orleans were in most instances any-quantity rates. The shipments from Texas points to the Southeast were made only in carload lots. Generally speak- ing, the carload rates that apply from the river to southeastern points were relatively lower than the any-quantity rates. On Texas shipments no terminal service was performed at New Orleans, while on a local shipment, in and out, such service would be substantial. HELD, as to the rates applying to Illinois and Central Freight Association terri- tory. New Orleans possesses natural ad- vantages entitling it to lower rates than Texas points; that while the Texas points are nearer Pacific Coast points than New Orleans, they are not entitled to lower rates becauss the rates are blanketed over a large territory, and, hence, can be justified, which they might not be were the haul shorter, as is the case to Central Freight Association territory; that the through carload rates of which any-quantity rates are factors from Texas points to the South- east are unreasonable and discrimi- natory because the New Orleans shipper in less-than-carload lots gets the same rate as the Texas shipper of carloads, and in addition has a substantial ter- minal service performed for him, and that joint carload rates from Texas mill- ing points to this territory shoald be at least 5c less than the lowest combination of locals contemporaneously in effect to and fiom Mississippi River points. Mu- tual Pice Trade & Devel. Ass'n. Houston, V. I. & G. N. R. R., 23 L C. C. 219. (aa) Complainant is a grain dealer operating an elevator located on Erie Street, west of Main Street, Buffalo, N. Y. He attacked defendant's rate of $1.30 per net ton for the transportation of coal during the period from July 7, 1909, to March 20, 1910, from Chalfant Mines, Braznell and Newell Scales, Pa., for delivery at his elevator to the ex- tent this rate exceeded the rate appli- cable from said points of origin to other points of delivery in Buffalo. Prior to May 1, 1909, the rate On coal from the points mentioned for delivery to points east of Main Street was $1.25 per net ton, while to points west of Main Street it was $1.30. Effective on that date the $1.25 rate was extended to Bl^ck Rock, a point west of Main 84 BLANKET RATES, §7 (b) — (bb) Street, but no reduction was made in the rate to Erie Street. On April 1, 1910, the rate for all deliveries in Buffalo was made the same, $1.25 per net ton. Complainant did not attack the present rate, but merely sought reparation on shipments which moved during the period when the rate to Erie Street was higher than the rate to Black Rock and points east of Main Street. Deliveries to points east of Main Street are jnade by a direct haul. In making deliveries to Erie Street, however, because of restrictions imposed by the city council, it is nec- essary to haul the traffic entirely around the city of Buffalo on the belt line through Black Rock, a distance of about 11 miles. On account of the switching charge (which they absorbed) the rev- enue derived by the line carriers was less on shipments to Erie Street than to Black Rock. The rate to Erie Street had been reduced because that rate was always grouped with the rate to Tona- wanda, N. Y., via Black Rock, and the Tonawanda rate having been reduced, owing to the great industrial develop- ment of the territory between Buffalo and Tonawanda, which is about 11 miles distant, the rate to Erie Street was similarly reduced to preserve the relationship between those two points. HELD, the voluntary reduction of a rate by a carrier does not in itself, without proof that the former rate was unreasonable, furnish a sufficient basis for reparation, acd that on the record it cannot be found that the rate charged was unreasonable or unduly 'discrimina- tory. Complaint dismissed. Pierce v. P. & L. E. R. R. Co., 23 L C. C. 89, 91. (b) When general rate adjustments, in and between large territories, which contemplate substantial justice between all shippers generally, result in indi- vidual instances of disproportionate in- equality, they fail in their purpose, and their strict observance in such cases upon no other ground than the arbitrary theory of their existence should yield to the extent necessary to prevent in- justice. Alpha Portland Cement Co. v. B. & O. R. R. Co., 22 I. C. C. 446, 449. (bb) The Commission investigated cer- tain increased rates on cement plaster applied by the defendants from Alva, Bickford, Ferguson, Marlbw. Okarche, Cement, Eldorado, Okeene, Southard, Chambers, Roman Nose, Watonga -and McAlester, Okla., to Fort Worth and Dal- las, and intermediate stations in Texas. Fort Worth and Dallas are the largest consuming points for cement plaster in northern Texas, and the rates in force were made in order to place the various points of production on^ substantial com- petitive equality at Fort Worth and Dal- las. Producers of cement plaster in Okla- homa are in competition not only with one another but with competitors in the vicinity of Acme, Tex., distant from Fort Worth 196.5 miles, and from Dallas 230.3 miles, via the Fort Worth & Denver City Ry., which road has maintained rates of 10c from Acme to Fort Worth and lli/^c to Dallas. The Oklahoma points are further distant from Fort Worth or Dallas than is Acme and took a rate sub- stantially the same. In many instances also rates from Acme and from the points of origin in Oklahoma were higher to sta- tions between Fort Worth-Dallas and the Texas-Oklahoma state line than to Fort Worth-Dallas. The increase in the rates suspended appeared to have been made by the carriers in order to conform to the fourth section of the Act and at the same time to augment their revenues. The revenue per ton mile under a 13c rate would vary from 7.3 mills to 11.6 mills from the further situated points in Okla- homa, distant from 224 to 353 miles, and a rate of 10c would yield a ton mile reve- nue of from 9.4 mills to 12.2 mills from the nearest situated points distant from 164 to 212 miles. HELD, regarding the rates from the Oklahoma points of origin to Fort Worth and Dallas, the points of origin and destination should be grouped for the purpose of prescribing maximum rates. In making such groups the estab- lished rate-making customs in the south- western section of the country, and the particular action of the carriers in this case, are followed: two groups of points of origin seem to be necessary in order to do justice to the rights of shippers and carriers and these are made substantially upon the ground of distance; the rate from Alva; Bickford, Ferguson, Okarche, Eldo- rado, Okeene, Southard, Roman Nose and Watonga to Fort Worth and Dallas should not exceed 13c per 100 lbs., minimum 40.000 lbs.; the rate from Cement, Mar- low, Chambers and McAlester, the near- est group to Fort Worth and Dallas, should not exceed 10c per 100 lbs., mini- mum 40,000 lbs. In Re Advances in Rates by Carriers on Cement Plaster. 21 I. C. C. 591, 595. BLANKET RATES, §7 (c) — (e) 85 (c) The highest main line rates to be found in the United States are those from eastern points to stations in Nevada. For carrying a carload of first-class traffic containing 20,000 lbs. from Omaha to Reno, the U. P. and S. P. lines charge $858. If a like carload is carried 154 miles further to Sacramento the charge is but $600. The first-class rate to the more distant point, Sacramento, is $3 per 100 lbs., and to the nearer point, Reno, $4.29 per 100 lbs. If a light carload of freight originates at Denver, 500 miles w^est of Omaha, the same rates to Reno and Sacramento apply, and if the freight originates at Boston, 1,700 miles east of Omaha, the rates are the same. This arises because the whole of the United States from Colorado common points to the Atlantic seaboard, barring a few of the southeastern states, is one wide group or zone from which practically uniform rates to Pacific coast water points are made, and the rates to Reno are based upon these blanket rates to coast cities and amount to the sum of the rates to the coast, 'plus the local rates back to point of destination. There was a time doubtless when Nevada traffic, save to the mines on its westernmost border, was but trifling. At present, however, it has a traffic, both freight and passenger, v/hich is far too considerable to be over- looked under the rule de minimis. Upon freight shipped from Boston, or New York, or Chicago, or St. Louis, or Omaha to Sacramento, or to Reno, the carriers east of Ogden receive precisely the same earn- ings on both shipments, but the S. P. Co. west of Ogden receives far more upon the Reno shipment than on the Sacramento shipment. HELD, the time has come when the carriers west of the Rocky Mountains must treat the intermountain country upon a different basis from that which has hitherto obtained. Nevada can- not to the fullest extent be given rates as low as those given to Sacramento, be- cause in making rates to Reno from a territory as large as that of the east con- sideration must necessarily be given to existing rates, to other intermediate points, and to points upon the Pacific coast. The class rates to Reno and points east thereof, through but not including Winnemucca, from groups of eastern de- fined territory are unreasonable first-class (other classes reduced proportionately) to the extent they exceed the following: From Denver and other points in Group J, $2.10; Grand Island and other points in Group G, $2.30; Omaha and Group F, $2.50; Clinton and Group E, $2.80; Chi- cago and Group D, $2.90; Cincinnati-De- troit common points, $3.05; Pittsburgh- Buffalo common points, $3.20; New York common points, $3.50; rates to Winne- mucca and points east thereof to the Nevada-Utah state line reduced about 5 per cent less than the foregoing. Com- modity rates reserved for further consid- eration. Railroad Commission of Nevada v. S. P. Co., 19 I. C. C. 238. (d) Because carriers have constructed a system of rates on a zone or blanket system, is not sufficient reason to justify the collection of unreasonable charges to any point. Every city is entitled to the advantage of its location, and may not lawfully be subjected to high freight charges, merely because carriers for rea- sons of convenience, or otherwise, in- clude it with a number of other points in surrounding territory, which latter points are not similarly situated. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 309. (dd) It is improper to place a par- ticular commodity in a given zone with- out due regard to geographical boun- daries of production. Ferguson Saw Mill Co. V. St. L. I. M. & S. Ry. Co., 18 I. C. C. 391, 394. (e) Complainant attacked the rates on cypress lumber from Little Rock and Woodson, Ark., a point 17 miles southeast of Little Rock, to points on the Iron Mountain's lines in Oklahoma, Kansas and Missouri. For over 20 years cypress had been classed as a hardwood. The cypress producing territory extends from southeastern Missouri to the Arkansas River, and to some distance south of that river, paralleling it to the Mississippi River. The yellow pine region sets in at the Arkansas River and extends south to the Gulf of Mexico. The two regions do not therefore at all correspond in geo- graphical location. The rates attacked were the result of applying to cypress the blanket rate governing yellow pine. The cypress rates to the destinations in ques- tion were blanketed over a territory from Memphis, Tenn., and ranged from 16c to 18c over distances ranging from 309 to 477 miles, and yielded from 6.9 mills to 1.1c per ton mile. The rate from Little Rock ranged from 18c to 24c for distances of from 179 to 355 miles, and yielded from 1.35c to 2c per ton mile. The rates from Woodson ranged from 18c 86 BLANKET RATES, §7 (f) to 24c for distances of from 197 to 373 miles and yielded from 1.29c to 1.83c per ton mile. The rates attacked were from 21/^0 to 8c higher than those previously in effect from Woodson and Little Rock, and a typical result was to give a 24c rate from Woodson and Little Rock to points in eastern Kansas as compared with an 18c rate from Memphis and other more dis- tantly located points. HELD, defendant was not justified in ignoring geographical location of production, and placing Wood- son and Little Rock so as to take the yellow pine blanket rate, and that rates from Woodson and Little Rock should not exceed those from Memphis. Rates at- tacked ordered reduced according to a schedule set out in the opinion. Fer- guson Saw Mill Co. V. St. L. I. M. & S. Ry. Co., 18 I. C. C. 396, 399. (f) Complainants attacked the rates on all classes of freight and commodities between Atlantic Coast territory and the cities of Saginaw, Flint and other points within the counties of Saginaw and Genesee, Mich., making up the Saginaw Valley territory, not as unreasonable per se but as unjustly discriminatory in com- parison with the Detroit-Toledo groups, and other groups. The rates in Central Freight Association or percentage terri- tory are made up upon percentages of the Chicago-New York rate. From the assumed rate of 25c from Chicago to New York there is first deducted the sum of Gc to represent the fixed terminal ex- penses, at the points of origin, and des- tination. The remaining 19c represents the assumed charge for the rail haul ex- clusive of service at either terminal. This rate being divided by 920, the short line mileage from the Chicago to New York, yields a rate per mile of 0.0206c. This rate per mile is used as the factor for establishing an assumed rate from any particular junction or competitive point on the basis of its mileage to New York. This factor or rate per mile multiplied by the number of miles from the partic- ular point to New York gives an assumed rate from that point exclusive of any terminal service at either end of the movement. To this assumed rate the 6c is again added to cover the terminal ex- penses. The result gives an assumed rate from the particular point to New York, including terminal charges. The per- centage which this assumed rate bears to the assumed rate of 25c from Chicago to New York is the percentage of the Chi- cago rate which the particular point takes on any given class of merchandise. This percentage system was at first ap- plied only to junction and competitive points, but later the rates were extended to nearby non-competitive points, thus es- tablishing zones or groups. This per- centage system has in the course of time been somewhat modified by the building of new lines, by water competition, and other influences. Under the percentage system Flint and Saginaw took 92 per cent of the Chicago rates. This percent- age was figured on the haul to New York through Toledo, a distance of 828 miles. Since the establishment of this rate the Grand Trunk R. R. by the acquirement of Canadian roads reduced the haul from Saginaw to New York to 731 miles through the Port Huron gateway. Com- plainants contended that the rates from Saginaw and Flint should be figured on this 731-mile haul, making the percentage rate to New York 84 per cent instead of 92 per cent of the Chicago to New York rate. Toledo and Detroit took 78 per cent of the Chicago to New 'York rate, this percentage being arrived at by ignor- ing terminal charges in consideration of the enormous traffic passing through Toledo and Detroit and in view of water competition, such rate being therefore lower than it would have been had the percentage formula been strictly fol- lowed. At the time of filing the com- plaint Detroit and Toledo were able to ship to points in northern and western Michigan at a less rate than jobbers in the Saginaw Valley. Since the filing of the complaint the local rates from this territory and from Detroit were so ad- justed as to put jobbers in the Saginaw Valley on an equality with Toledo and Detroit with respect to shipments to Michigan territory. To grant the reduc- tion demanded would have the effect of compelling a readjustment of the rates in many zones and territories about which no complaint had been offered. Toledo and Detroit have natural advantages on account of the immense tonnage passing through them and on account of their proximity to water transportation. HELD, the proximity of Detroit and Toledo to the great channels of through transportation, and their location on di- rect through routes where the density of traffic is very great and the general op- erating and traffic conditions are favor- able, are advantages which cannot be ignored. The disadvantages in location BLANKET RATES, §7 (ff)— §8 (aa) 87 of the Saginaw Valley in not being favor- ably situated for lake navigation, and in other respects, cannot be equalized by an order of the Commission. Complaint dis- missed. Saginaw Board of Trade v. G. T. Ry. Co., 17 I. C. C. 128, 132-138. (fC) Where three towns are strong competitors, it is important to have a common rate if the conditions justify it. Railroad Commissioners of Florida v. S. A. L. Ry., 16 I. C. C. 1, 2. (g) Relief cannot be denied to a typi- cal point in a group for the reason that other points in like situation may be en- titled to a similar order. Indianapolis Freight Bureau v. C. C, C. & St. L. Ry. Co., 16 1. C. C. 56, 71. (h) To impose upon any point in the territory around St. Louis a blanket rate higher than could be obtained by using the combination on St. Louis would be denying to that point the just benefit of its location. Hydraulic Press Brick Co. v. Vandalia R. R. Co., 15 I. C. C. 175, 176. (i) On pressed brick in carloads from Collinsville, 111., to Galveston, T^x., via St. Louis, a joint through rate of 27c was collected. This joint rate was applicable from a large section of territory north of the Ohio River. The combination of local rates based on East St. Louis, however, was only 23c, consisting of Ic to East St. Louis and 22c from East St Louis to des- tinations. HELD, the rate charged was unreasonable to the extent it exceeded 23c. While defendants might establish a blanket rate, such rate must be subject to the limitation that from no part of the group could a lower rate be constructed on the combination of locals. Hydraulic Press Brick Co. v. Vandalia R. R. Co., 15 I. C. C. 175-176. §8. Proximity to Established Groups. See Discrimination, §7 (e); Througli Routes and Joint Rates, §11 (1) (a), §15 (II). (a) Clyde siding, Fredericktown, Pa., is just outside the Pittsburgh coal district as established by defendants, but is only about 30 miles from Pittsburgh proper, while the boundary line drawn by defend- ants takes in mines as far as 35 miles dis- tant. The Clyde mine is west of the Monongahela River and separated from the Connellsville-Fairmont district on the other side of the river, with which, how- ever, it does not compete. In forming the Pittsburgh district the carriers followed no hard and fast rule, and the fact that the boundary line of that district makes a sudden dip so as to avoid taking in complaint's mine at Clyde, suggests an unusual arbitrariness. In Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, the Com- mission established a rate of 78c per net ton on coal from the Pittsburgh district to Ashtabula Harbor, O., when for trans- shipment by vessel on the great lakes to points beyond, and complainant requested this rate. HELD, the accessibility of com- plainant's mine to one of defendant's as- sembling points for lake-cargo coal and the other facts combined to show that it properly belongs within the Pittsburgh district and is entitled to the rate of 78c ordered by the Commission to become effective from such district, and which is established for the future from the Clyde mine. Clyde Coal Co. v. P. R. R. Co., 23 L C. C. 135. (aa) The rates on cement shipped mainly on the B. & O. Ry. from Man- heim, W. Va., to territory between Cum- berland and Baltimore and Virginia cities in the East and the Central Freight Association territory in the West were attacked as unreasonable and discriminatory to the advantage of the Universal Portland Cement Company at Universal, Pa. Manneim is situated 77 miles west of Cumberland on a branch road. Universal is within the switching limits of Pittsburg. A general revision was requested in 1909. Some realignment was made but definite ac- tion was delayed on most demands until the present complaint was filed, when the most pronounced discriminations were relieved. The present rates from Manheim ranged from $1.75 to $2.80 per net ton; the distance from 331 to 739 miles. A contemplated increase in Universal rates was given as the rea- son for the delay, but the tariffs of 1910 intensified the discrimination. The- oretically there is no difference in the basis from Manheim and Universal, but Manheim rates are constructed on west- ern termini basis while Universal rates are based on actual distance with refer- ence to Central Freight Association ter- ritory. Universal is considered a Cen- tral Freight Association point, while Alanheim is regarded as a Trunk Line point, and its rates are the same as those of Baltimore. 2G9 miles further east. There was no claim of different transportation conditions other than this. At the time the complaint was 88 BLANKET RATES, §8 (b) — (c) filed the differential per ton over Uni- versal ranged from 5c to 86c on dis- tances from 331 miles to 739 miles. The differentials, however, appeared arbi- trary and not based on distance. HELD, carload rates on cement from Man- heim to points shown in the labia an- nexed to the opinion are unjustly discrim- inatory to the advantage of Universal, Pa., said undue advantage being meas- ured by the difference between the pres- ent differential and the one prescribed in the table, which ranged from 5c to 45c per net ton. Reparation awarded for this difference on all shipments for two years prior to the filing of the com- plaint. Alpha Portland Cement Co. v. B. & O. R. R. Co., 22 I. C. C. 446, 451, 455. (b) Complainant shipped carloads jf citrus fruits from various California points to Miles City, Mont., under a rate of $1.79 per 100 lbs. on the first car, $1,755 on the next three cars, and $1.35 on the other 16 cars. At the time the first four shipments moved no joint rate applied and combinations of intermediate rates were charged. Subsequently a through rate of $1.35 was established. Later a joint commodity rate of $1.15 was pro- vided. For a number of years a blanket rate of $1.15 has been maintained from California points to eastern and inter- mediate points. HELD, that no reason appears why that rate should not have been given to Miles City. Reparation awarded. Gamble-Robinson Fruit Co. v. N. P. Ry. Co., 20 L C. C 421. (bb) Davenport is on the west bank of the Mississippi River opposite Rock Island and Moline. Prior to October 1, 1908, the rate on cypress lumber from Minot and Rome, Miss., to each of these cities was 21c per 100 lbs. On that date the rate to Davenport was increased to 23c, but to Rock Island and Moline was not advanced. HELD, that Davenport should be grouped with Rock Island and Moline for rate mak- ing purposes; that the advanced rate was unlawful to the extent that it was higher than the rate contemporaneously enforced from the same points to Rock Island and Moline. Reparation awarded. Davenport Commercial Club v. Y. & M. V. R. R. Co., 20 I. C. C. 19. (c) Complainant manufacturers and merchants of Red Wing. Minn., attacked the class rates from Trunk Line ter- ritory to Red Wing, which were higher than those to St. Paul, La Crosse, Winona, Eau Claire and Stillwater by arbitraries of 15, 12. 10, 7, 4 and 4c for classes 1, 2, 3, 4, 5 and 6, respectively. Red Wing is intermedi- ate on the C. M. & St. P. Ry. to the points in question and St. Paul and lies 40 miles south of St. Paul, 60 miles west of Eau Claire, 60 miles north of Winona, and 90 miles north of La Crosse. It is served by branch lines of the Chicago Great Western R. R. On traflac to and from Central Freight Association territory, Red Wing was given the St. Paul rates and only from the Trunk Line points was it accepted in the general adjustment of rates ap- plicable to competitive points, north, east and south. For many years prior to May 20, 1908, Red Wing took the St. Paul rate on shipments from Trunk Line points via lake-and-rail routes. On that date the arbitraries attacked were ap- plied to Red Wing, Eau Claire, Chip- pewa Falls, La Crosse and Winona. In August, 1908, all these cities except Red Wing were restored to the St. Paul rate. In October, 1908, Red Wing was given the same rates, but in June, 1909, the arbitraries attacked were re- established as applicable to Red Wing only. Transportation conditions beyond Chicago are precisely the same whether the traffic originated in Trunk Line or Central Freight Ass'n territory. No points of any importance south of St. Paul took as high rates as Red Wing. The lake-and-rail competition through Duluth urged by defendants as justify- ing the higher rate to Red Wing was only effective during the open season, about seven months of the year, and no freight was shown to move from Trunk Line points to Red Wing through the Duluth gateway. The application of the St. Paul rates to Red Wing would not, as urged by defendant, re- quire the extension of the St. Paul rate to points west of Red Wing, since no point west of Red Wing was similarly surrounded by competing cities taking lower rates. -HELD, Red Wing, being intermediate on the main line of the C. M. & St. P. Ry. should, on account of its relative distance from Duluth and Milwaukee and its proximity to competing points in the same region, take St. Paul rates; but that the order to cancel the arbitrary attacked would apply only to the Chicago, Milwaukee & St. Paul Ry., leaving the carriers reach- BLANKET RATES, §8 (cc) — (e) 89 ing Red Wing by branch lines to adopt the lower rate ordered if they desired so to do in order to meet competition. Reparation denied. Frederich & Kempe Co. V. N. Y. N. H. & H. R. R. Co., 18 I. C. C. 481, 484. (cc) The proximity of one city to competing points in the same region makes higher rates thereto .unlawful. Frederich & Kempe Co. v. N. Y. N. H. & H. R. R. Co., 18 I. C. C. 481, 484. (d) Prior to the decision in Georges Creek Basin Coal Co. v. B. & O., 14 I. C. C. 127, the rates on big-vein and small- vein coal from Georges Creek, Md., was 10c higher when water-borne to competi- tive points inside the Chesapeake and Delaware capes, and 15c higher when destined to points outside than small-vein coal shipped from Pennsylvania and West Virginia fields to the same points. In that case the Commission ordered defend ants to reduce the rates on small-vein coal from Georges Creek to such points so as to be on a parity with small-vein coal from West Virginia and Pennsyl- vania fields, but left open the question of ordering a like reduction on big-vein coal from Georges Creek. In the present case it appeared that on account of the higher expense of mining big-vein coal at Georges Creek, complainants were unable to ship the same to the Cape points at the higher rates on big-vein coal left in effect by the former decision. Since that de- cision one of the defendants voluntarily removed the 10c difeerential obtaining against big-vein coal, but left in effect the 15c differential relating to coal water- borne to points outside the Capes. The mines at Georges Creek were from 50 to 100 miles nearer the Cape points than those in the Pennsylvania fields, and from 60 to 85 miles nearer than the mines in the West Virginia fields. These three fields had for many years been grouped together in the fixing of rates and a dis- ruption of them would lead to a wide- spread confusion in coal rates. While Georges Creek was not exactly on the lines of defendants, being reached by a short lateral line, it was practically so located and was for practical purposes to be treated as intermediate to the other two fields with respect to shipments to the Cape i)oints and to points in New .Jersey, New York, Connecticut, Massachusetts, Rhode Island and Pennsylvania. Com- plainants demanded that on both small- vein and big-vein coal they be accorded lower rates than from the other two fields on account of the shorter hauls in- volved. HELD, first, pursuant to the in- timation made by the Commission in its former decision the rates on big-vein coal from Georges Creek to Cape points should be reduced to equal those on small-vein coal from the Pennsylvania and West Virginia districts mentioned; second, that the grouping of such three fields should not be disturbed and that Georges Creek should not be accorded lower rates On coal than the other two fields on ac- count of the shorter hauls involved; third, that the rates charged from Georges Creek to points in the states above mentioned being higher than from the other two fields should be reduced to the same rates. American Coal Co. v. B, & O. R. R. Co., 17 I. C. C. 149, 154-157; decision of Commission sustained, Phila. & R. Ry. Co. V. I. C. C, 174 Fed. 687. (dd) Montchanin, Del., is situated be- tween Wilmington, Del., and Chadds Ford Junction. Pa., eight miles from the former and seven miles from the latter. All three points are in Philadelphia Rate Basis territory, from and to which rates are the same. The Penn. R. R. extended to Wilmington and Chadds Ford Junction, but did not reach Montchanin. On traffic from Montchanin to points on its line in Pennsylvania and Ohio it would have been obliged to divide the Philadelphia basis rate with the initial carrier, had it applied said rate to Montchanin. On ship- ments of powder from said point it re- fused to join in through routes and joint rates to Pennsylvania and Ohio points and complainant was obliged to pay the local rate from Montchanin to Chadds Ford Junction and the Philadelphia basis rate beyond. The Penn. R. R. contended that it could not profitably join in rates from Montchanin since it did not get the benefit of hauling the raw material for the powder to said points. HELD, such practice was unjustly discriminatory and Montchanin being in Philadelphia Rate Basis territory was entitled to the same rates as other competitors of complainant located in that territory. Du Pont De Ne- mours Powder Co. v. Penn. R. R. Co., 17 I. C. C. 544, 546. (e) From a geographical standpoint, Kalispell and Missoula groups are corre- sponding lumber-producing sections and for that reason should take same rates. B'g Blackfoot Milling Co. v. N. P. Ry. Co., 16 I. C. C. 173. 175. 90 BLANKET RATES, §8 (f)— §9 (aa) (f) LInndale, because of its proximity to Cleveland, ought to take the Cleveland rate. American Agricultural Chemical Co. V. Erie R. R. Co., 16 I. C. C. 320, 322. (ff) On shipments of empty oil bar- rels from various points in New Mexico to El Paso, Tex., complainant was as- sessed fourth-class rates. At the time shipments moved, defendant had in effect rates from the i>oints of shipment into Santa Fe, Albuquerque, and other stations, one-half of fourth-class rates with a minimum charge of 25c per bar- rel. Complainant was in competition with dealers located at New Mexico points enjoying one-half fourth-class rates, and shipped oil into the same gen- eral territory. HELD, El Paso should be granted the same basis of rates as that accorded to competing points in that locality, and defendant should es- tablish and maintain classification of and minimum charges from points in New Mexico to El Paso not to exceed those from the same points to Albu- querque. Reparation awarded. Great Western Oil Co. v A T. & S. F. Ry. Co.. 16 I. C. C. 505, 506. (g) Defendants charged on 19 car- loads of range cattle shipned from Mid- land. Tex., to Kennebeck. S. D.. 15c from Midland to Fort Worth: $95 per car from Fort Worth to Chamberlain, S. D.. and a rate of 914c thence to destination. Kennebeck is located 30 miles west of Chamberlain. HELD, the $95 per car rates should have been extended to Kenne- beck, and complainant was entitled to renaration for the 9'^c excess paid. Philin V. C. M. & St. P. Ry. Co., 16 L C. C. 418, 419. (gg) Waben*^, Wis., where complain- ant had a saw mill, was placed in the Rhinelander group for the purpose of fixing rates on lumber and lumber nrod- ucts to points in Illinois and Towa. The Wausau .'-roun adjoined the Rhine- lander group on the southwest and the rates from the latter were Ic higher to Chicago and other points in northern and western Illinois and V'>c to 1c higher to lo^a points than those from the Wausau group. Wabeno was in the apex of the angle which formed the southerly extension of the Rhinelander group; was only a short distance from the boundary line between the two groups: and was nearer to Chicago and said points in Illinois and Iowa than many points in the Wausau group. HELD, Wabena was entitled to the same rates as points in the Wausau group on account of its geographical location. Jones Lumber Co. v. C. & N. W. Ry. Co., 15 L C. C. 427, 428. (h) Since Seattle and Tacoma have long been grouped with Portland with re- spect to rates on lumber and coal on shipments from those points to eastern and southeastern destinations, this group system should not be disturbed by at- tempting to give a lower rate from the two former cities than from Portland. Ore- gon & Washington Lumber Mfrs. Ass'n V. U. P. R. R. Co., 14 I. C. C. 1, 18. (i) Certain points omitted from terri- tory, subsequently inserted. Reparation awarded. Clemons Horst Co. v. S. P. Co., Unrep. Op. 291. (j) For rate-making purposes, except to nearby points, the cement-producing territory in Kansas gas belt is treated as a group, and the same rates apply from all of these manufacturing centers. Great Western Portland Cement Co. v. M. K. & T. Ry. Co., Unrep. Op. 559. §9. Grading Rates. See Differentials, §1 (a), (a) The blanket system of making rates on wool from the West to eastern points should be broken up and graded rates established. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 165. (aa) Covington, Brownsville and Jacki son, Tenn., are situated upon a line drawn east from the Mississippi River, Covington 116 miles from the river, Brownsville 20 miles east of Covington, and Jackson 25 miles east of Brownsville. Covington Is 38 miles north of Memphis. The rate on cotton from Memphis to New England points was 4714c; from Covington, 60i/^c; from Brownsville, eoi/^c, and from Jackson, 70c. The 60y2C rate from Covi igton was forced by the rate from Memphis, since under a higher rate from Covington cot- ton would move from the surround- ing country to Memphis* to be com- pressed and shipped. The 60i/^c rate at Brownsville was for the same reason forced by the rate at Covington. In the same way Jackson felt the competition with Brownsville. The derendants re- fused to cut the Jackson rate, and as a result the cotton grown about Jackson moved to Brownsville for shipment. De- fendants contended that the rates at BLANKET RATES, §9 (b) 91 Covington and Browr.sville being estab- lished by the initial carriers reaching those points, the Commission had no authority to change the rate at Jackson. HELD, the rate from Jackson was a joint rate which could not exist but for the act of the connecti' j carriers, and for which they must stand responsible; that the fair way to meet a competitive situation of this kind was to gradually grade up the rate as the river became more dis- tant, and that the rate from Jackson should be adjusted so as not to exceed that from Brownsville by more than 5c. (Knapp and Harlan, comm'rs, dissenting.) R. R. Com. of Tenn. v. Ann . :bor R. R., 17 I. C. C. 418, 420, 421. (b) Complainant lumbermen with mills in the "Kalispell District," Mont., located between Leonia, Idaho, and Kali- spell, Mont., attacked the rale on lumber to points in North Dakota located on defendant Gt. N. R. R., including all lo- calities between the "Buford-Edgemont" and the "Pembina-Port Arthur" lines. Abcut 1893, defendant, Gt. N. R. R., established a late of 40c from the Pacific Coist to St. Paul. Minn., and points intermediate. As new lumber- producing sections sprang up between the Pacific Coast and the Rocky Moun- tains, or new points of destination sprang up in the states of North Dakota and Minnesota, this 40c rate was applied, irrespective of the length of the haul. In 1906 the rates from the Calispell district, and other points in the eastern or Montana-Oregon group, were reduced and the city of Kalispell and places ap- proximate thereto were accorded on an average a 10c differential lower than Spokane to points in North Dakota. The mills between Kalispell and the city ef Spokane were given a rate graded up- ward in amount toward the city of Spo- kane, where it remained 40c. On No- vember 1, 1907, the defendant advanced its rates generally from the Coast, Spo- kane and Montana-Oregon groups. This advance was attacked in Pacific Coast L. M. A. V. N. P. Ry. Co., 14 I. C. C. 23, and in Potlatch L. Co. v. N. P. Ry. Co., 14 I. C. C. 41. By the decisions in these cases the old rates were restored, except that the differential existing between the Kalispell district in the Montana-Oregon group and the Spokane group was de- stroyed. Complainants in the present case demanded a differential under the Spokane group of 5c per 100 lbs. at the Pembina-Port Arthur line graded upward westwardly to 7c at Buford, N. D. The history of the rates from these groups as affected by these decisions shows that on October 31, 1907, the coast rate and the Spokane rate to points in North Da- kota was 40c, constituting a blanket rate over the entire state. Kalispell had a differential under these rates of 5c at the Pembina-Port Arthur line, graded up- ward to 14c at Buford, N. D. By the advance in rates on November 1, 1907, Spokane was given a substantial differ- ential under the coast rates and the differential existing between ^^pokane and Kalispell was reduced, but this favor granted to the Spokane group was brought about by raising the rates from both the coast group and Kalispell. On October 15, 1908. as a result of the de- cisions referred to, the coast rate was reduced to 40c through North Dakota, and the Spokane rate was made a differ- ential under the coast rate 3c at the Pem- bina-Port Arthur line, graded upward to 7c at Buford. The differential between Kalispell and Spokane was practically eliminated. Complainants demanded a dif- ferential under the Spokane rate on ac- count of (1) geographical and transporta- tion reasons, (2) commercial reasons. They contended that on account of the inferior quality of the lumber produced in the Kalispell district, as compared with that produced in the Spokane dis- trict, competitive considerations de- manded that they be accorded a lower rate. Ti^oy further demanded a low^r rate than from the Spokane group on account of the shorter haul from the Kalispell district, and on account of the fact that in the past defendants had -voluntarily recognized the right to such a differential. The average distance from the Spokane group to the Kalispell district was about 309 miles. The dis- tance of a typical haul from the Kalispell district to the destinations in question was about 71 per cent of a typical haul from the Spokane group. The Spokane group is separated from the coast by the Cascade Mountains and a wide strip of treeless country, 200 miles in length. There is no un timbered country between Spokane and the Kalispell district, nor is there any natural boundary between the two. HELD, in view of transportation conditions and the differential formerly established by defendant in favor of the Kalispell district, a differential from Leonia. Idaho, and points on defendant Gt. N. R. R. east thereof to and including Rexford, Mont., to points on the Pembina- Port Arthur line should be established 92 BLANKET RATES, §9 (bb)— §10 (a) 2c under the Spokane group rates graded up westwardly to 4c under the Spokane group rates at Buford, N. D., and from points on the Gt, N. R. R. in Montana east of Rexford to points on the Pembina- Port Arthur line 3c under the Spokane group rates graded up westwardly to 5c under the Spokane group rates to Buford, N. D. Kalispell Lumber Co. v. G. N. Ry. Co., 16 L C. C. 164, 171. (bb) Differences in rates from two points of origin disappear as the most distant common market is approached. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 L C. C. 254, 264. (c) Complainant stockmen of Iowa at- tacked defendants' average live-stock rate of 22c per 100 lbs. from Iowa points to Chicago on an average haul of 300 miles as excessive. In support of their contention they established zones of 10 miles, beginning with 150 miles from Chi- cago. The distance to each station upon defendants' lines within these zones, and the rates in effect at those stations were taken, and the average rate for each zone in this way secured, which rate complainants proved greatly in ex- cess of the Illinois and Iowa state rates, the Missouri to St. Louis, the Missouri to Kansas City, the Nebraska to Kansas City and the Nebraska to Omaha rates. Defendants, to prove such comparison un- fair, showed that such averages were based on stations where no traffic actu- ally moved; and that points lying south of Iowa points on the same meridian, but at greater distances from Chicago, were able to secure the same rates on account of the ability of shippers to drive cattle to the station offering the lowest rates. The differential between Missouri and Mississippi River cities upon live stock was 8%c per 100 lbs., and this, when sub- tracted from the 23i^c-rate from Mis- souri River cities to Chicago, left a rate of 14y2C St. Louis to Chicago. The state rate from Illinois points to Chicago was very low. These facts tended to show that the system of comparisons offered by complainants was unfair. The rates from points in Missouri to St. Louis and Kan- sas City and from points west of the Missouri River to Kansas City and Omaha were lower than the Iowa-Chi- cago rates on account of the rates es- tablished by the state commissions of Missouri and Nebraska in connection with competitive conditions which did not obtain in Iowa, whose sole market for practical purposes was Chicago. The rates involved in complainants' compari- sons from points east of Chicago to Chi- cago were low on account of the normal movement of live stock being toward the East rather than toward the West. The Wisconsin-Chicago rates were lower than the Iowa-Chicago rates on account of competition with the Milwaukee market. Defendants, to show the Iowa-Chicago rates not unreasonable, pointed out the special items of expense to carriers con- nected with shipments of live stock in- cluding the cost of carrying attendants in charge of stock, expense of placing cars at the chutes for loading, of bedding and cleaning the cars, the charge for unloading at the stock yards at Chicago, the damages which carriers were re- quired to pay for injuries to the stock in transit, and the cost of moving such stock at high rates of speed. The total of this extra expense appeared to amount to from $2 to $3.50 per car. Defendants were shown to receive a larger per ton mile revenue on live stock than that made by other carriers on other commodi- ties. HELD, while the Iowa to Chicago rates attacked were higher than the state rates of Iowa, Illinois and Wiscon- sin, they could not on this evidence be held to be unreasonable, so as to warrant a general reduction; but that the 23i/^c Omaha to Chicago rate which was carried 150 miles east before the process of grading down to the Mississippi River was begun should be altered, and the grading down should be commenced at a point 50 to 75 miles east of the Missouri River. Corn Belt Meat Producers' Ass'n V. C. B. & Q. Ry. Co., 14 I. C. C. 376, 393, 394. §10. Differentials. See Differentials, (a) Complainants are lumber com- panies operating sawmills and wood- working establishments in South Port- land, a part of Portland, Ore. They complained that defendants imposed up- on their traffic to certain destinations higher rates than were exacted from their competitors also located in Port- land. Owing to the location and boun- daries of the switching limits in Port- land such arrangements have been made for the absorption of switching charges within certain defined switching limits that as a practicable matter what is known as the Portland rate is applied to lumber traffic to eastern destina- tions from all mills within the city limits of Portland, excepting only those BLANKET RATES, §10 (b)— §11 (a) 93 of the complainants. In the price of labor, the hours of service, the cost of construction and supplies, the cost of logs, and in all the advantages and disadvantages which are peculiar to other city mills, and in which there is often an essential difference from country mills, there is no distinction be- tween the mills of tne complainants and their competitors. HELD, that from the mills of complainants to Utah common points the Portland rate snould be applied instead of the differential of 2i^c per 100 lbs. now imposed against it, while to the other points complained of the differential now existing against them of 4c should be reduced to Ic per 100 lbs., a sligntly higher charge than the Portland rate being justified on account of the peculiar location of complainant's mills. Reparation award- ed; certain through routes and joint rates established. Portland Lumber Co. V. O. W. R. R. & N. Co., 21 L C. C. 292. (b) With particular force as applied to grouped points of origin and grouped points of destination, differentials either above or below rates from any given point become less and less important as distance of ultimate destination in- creases. Williams Co. v. V. S. & P. Ry. Co., 16 I. C. C. 482, 487. IV. REASONABLENESS. §11. Of Group. See Advanced Rates, §5 (2) (d), §8 (1) (i); Evidence, §20 (h); Long and Short Haul, §10 (aa); Reason- ableness of Rates, §28 (J), §84 (c). (a) In an investigation dealing with the rates, regulations and practices touching the transportation of wool between points of origin in territory west of the Mississippi River and points of destination upon or east of that river the Commission finds that the cost of producing wool in the western terri- tory has increased and is rapidly in- creasing, and tnat the increasing cost of land is one of the most serious fac- tors contributing thereto; that since 1896 the present rates have been in effect with but some slight variations, altnough during that period the wool clip has nearly doubled and the busi- ness and earnings of the transconti- nental lines enormously developed to such an extent that any general level of rates that was just and reasonable in 1896 would be extravagant in 1910; that from Colorado common points the rate on sheep in double-deck cars to Chicago is 51c, the wool rate $1,225; from Idaho the wool rate is $1,655, the sheep rate 80c; sheep in double-deck cars load approximately 22,000 lbs., the wool loading is 24,000 lbs.; the stock car returns empty, the wool car may be availed of for a return load of almost any kind, and therefore the cost of the service is in every sense greater in case of sheep than in case of wool; that it is difficult to justify any such dif- ference in these rates as now exists, and it is therefore from the whole record found that these rates are unjustifiable and should be revised and reduced, as follows: The rates prescribed are in all cases in carloads with a minimum for sacked wool of 24,000 lbs. in the standard 36-foot car and with a corre- sponding increase in minimum if the car- ders elect of cars of larger size. In case of wool compressed to a density of 19 lbs. to the cubic foot the minimum is 32,000 lbs. for a 36-foot car with a correspond- ing increase for larger sizes. On the Northern Pacific R. R. the rate from Mandan, N. D., to St. Paul and Duluth when for movement beyond ought not to exceed 50c. Beyond Mandan the rate should increase 2c for every 25 miles. On the Great Northern Railway the rate from Mondak, Mont., to Du- luth, 633 miles, ought not to exceed 63c per 100 lbs. in sacks. Beyond this point the rate should increase not ex- ceeding 2c for every 25 miles. From St. Paul to New York, practically 1,400 miles, the present rates should not be lower upon either sacked or baled wool from St. Paul and Duluth to Boston and New York. The average distance from Colorado common points to St. Louis or the Mississippi River by the short line is about 900 miles. The present rates on wool from Colorado common points to fcjt. Louis ought not to exceed in sacks 80c per 100 lbs. Beginning at Chey- enne upon the Union Pacific R. R. and going west these rates should increase 2c for each 25 miles. Beginning at Trini- dad upon the Santa Fe lines and going west the same measure of increase should be applied. Upon the Denver & Rio Grande R. R. a rate of 90c may be ap- plied at the first station west of Pueblo, beyond which the rate should increase at stations upon its main line not ex- ceeding 2c for each 25 miles. Upon the line of the Burlington railroad between 94 BLANKET RATES, §11 (aa) — (b) Omaha and Billings the rate from Al- liance, Neb., to St. Louis should not exceed 71c, and beyond Alliance should increase by not to exceed 2c for every 25 miles. Rates should be constructed in this manner upon both brarch and main lines of the G. N., N. P., Burling- ton, I . P. R. Rs., and in connection with the latter upon the Oregon Short Line, Oregon- Washington R. & N. Co., and upon the Santa Fe. Upon the D. & R. G. R. R. these rates should apply only at stations upon its main line. The above rates are in all cases upon sacked wool. Rates upon baled wool of the density and with the minimum hereinbefore indicated should be less by 15 per cent than the maximum rates named for sacked wool. In computing these rates fractions of less than one- half cent should be disregarded. Those of one-half cent or more should be treated as one cent. A reasonable through rate from western points of origin to Boston and New York would be constructed by adding to the rates which have been prescribed up to St. Louis in case of sacked wool 52c from there to Boston and 48c to New York; in case of baled wool 47c to Boston and 43c to New York. The rate so estab- lished may be named by the carriers either as joint through rates or as pro- portional rates up to and from the Mis- sissippi River or any other point se- lected as the equivalent; but they should be applied only to an actual through movement and should not be applied when the traffic has been unloaded, taken possession of by the shipper and rebilled from the intermediate point. Transit should be allowed at intermediate points on a direct line upon payment of 2.5c per 100 lbs. and upon the condition that it applies only to wool originating west of the Mis- sissippi River, which must be kept separate from wool originating at points east of the river. So far as applications for relief from the operation of the icurth section are concerned rates to in- termediate territory shall be constructed upon the mileage scale prescribed in this opinion, increasing with distance until they meet the effect of water competition, and so long as the water competitive rates are themselves made by combination upon the terminal rates, uniformly ard without discrimination, the rate on sacked wool not exceeding that on baled wool by more than 25c per 100 lbs. from such water-controlled territory, the entire fabric of rates is a just and reasonable one and the in- termediate rate with respect to any more distant competitive rate is just and reasonable. Carriers given until May 1, 1912, to check in rates in sub- stantial accord with the opinion. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151. (aa) Wool dealers at Detroit, Mich., attacked the lawfulness of the blanket rate of 50c per 100 lbs. from Chicago east on wool. Wool is classified under Official Classification as first class L. C. L., second class C. L., with a minimum of 10,000 lbs. In Western Classification the Commission held (Wool Case, 23 I. C. C. 151) it shouU be classified as second class L. C. L. and fourth class C. L., but conditions west of the Mississippi River are ma- terially different from those prevailing east, and western wool, on account of the dirt and grease it contains * is not as valuable as eastern wool until it is scoured. Detroit in the Official Classi- fication takes 78 per cent of the Chi- cago rate. The present first class rate from Chicago to Boston is 82c, from Detroit 65c; the present third-class rate is 55c from Chicago and 44c from De- troit. In the original investigation the carriers had contended and the Com- mission had assumed it as a fact that the 50c any-quantity rate from Chicago was due to competition, but the testi- mony in this proceeding indicates that such is not at all the fact. HELD, that even if wool might well be classified in the Official Classification as third class it would still appear that the 50c blanket rate was reasonable from De- troit, but that since no competitive con- ditions require the maintenance of this blanket rate nor do the conditions under which eastern wool is transported require the establishment of a blanket late, wool rates should be adiusted east of the Mississippi River in accordance with the general scheme of rates ap- plied between Central Freight Associa- tion territory and the Atlantic seaboard, and that the rate from Detroit should not exceed 78 per cent of that contem- poraneously in effect from Chicago. Schmidt & Sons v. M. C. R. R. Co., 23 I. C. C. 684, 688. (b) In considering the reasonableness of a blanket rate extending over a large BLANKET RATES, §11 (bb) — (ee) 95 irea, the Commission must consider the )lanket as a whole, taking the average laul. Arlington Heights Fruit Exchange r. S. P. Co., 22 I. C. C. 149, 152. (bb) Florida railroads up to the Flor- da base points were originally con- tructed and operated as independent ines. The rates on citrus fruits, pine- Lpples and vegetables were fixed from )roducing points to Jacksonville and in- reased with the distance. Later the 'lorida lines were merged with lines north f the base points and extensive markets vere opened up in the middle West. Citrus fruits came to the market at -bout the same time from both the lorthern and southern sections of Flor- da, and the higher charge from the Qore southern section was a disad- vantage to the south as compared with he north, but on the other hand, cli- aatic conditions rendered productions in he south less hazardous than in the Lorth. In case of vegetables the higher ransportation rate from the south was ompensated for by the fact that vege- ables grown in southern Florida came Qto bearing earlier than those from he north and had an exclusive and bet- er market. Industries were developed ,nd the land values became fixed upon he basis of distance rates from the loints of origin to base points. JIELD, hat in consideration of the history of he development of the industries and n fairness to the growers in the north, ilanket rates, which would increase the iharges to these growers, should not >e established. Florida Fruit & Veg. Ihippers v. A. C. L. R. R. Co., 22 I. X C. 11, 17. % (c) Any grouping, whether of rates, ocalities or commodities, must not be mreasonable. Sun Co. v. I. S. R. R. Co., !2, I. C. C. 194, 197. (cc) Complainant attacked rates for the ransportation of dry hides, $1.30 C. L, md green hides $1 C. L., Los Angeles and jan Francisco, Cal., to Manistique and 5ault Ste. Marie, Mich. The rates of which iomplaint was made were blanketed )ver a considerable portion of the coun- ty east of the Missouri River and com- )lainant's argument was based on the ;heory that it ought not to be required ;o pay the same rate for the shorter haul ;o the destinations named than for the onger haul to points such as New York md Boston. The distances from San F'rancisco and Los Angeles to Sault Ste. INIarie are 2,652 and 2,853 miles, re- spectively, producing a ton-mile revenue of 7.5 mills and 7.3 mills. HELD, the rates complained of are not unreasonable or otherwise unlawful. Northwestern Leather Co. v. O. R. R. & N. Co., 21 I. C. C. 66. (d) In fixing group rates, differences in rates based upon distance should 'de- crease as the distance to points of desti- nation increases; and as between points embraced within the same rate group the percentage of distance over or under the average distance of the group to point of destination should not be ex- cessive. In Re Advances in Rates on Cement Plaster, 21 I. C. C. 591, 594. (dd) It is something less than 800 miles by the S. P. L. A. & S. L. R. R. from southern California to Utah; via the S. P. R. R. to Sacramento and east it would be some 350 miles farther. From most deciduous fruit producing points in California and from the orange groves in Central California the dis- tance to Salt Lake City does not ex- ceed from 700 to 800 miles. A blanket rate of $1.15 is applied from southern California to all points east of Colorado points. HELD, upon no theory can the Commission sanction a rate of $1.15 per 100 lbs. to Salt Lake and that the rates upon •citrus and deciduous fruits from producing points in California to Utah common points should not exceed $1 per 100 lbs., the minimum to be that contemporaneously applied to eastern destinations. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 226. (e) In every zone rate, the nearby point pays a proportionally higher rate than a more distant point. Schmidt & Sons V. M. C. R. R. Co., 19 I. C. C. 535, 538. (ee) Complainant attacked the rates on walnut logs in carloads from Weiner and St. Francis, Ark., and intermediate points to East St. Louis, 111. The rate from Weiner was 17^c; from St. Fran- cis, 16i^c. The defendant, St. L. S. W. Ry., extended from the Texas state line, crossing the Mississippi River at Thebes, 111., and running thence to East St. Louis, the distance from St. Francis to East St. Louis being 214 miles and from Weiner 273 miles. In East St. Louis Walnut Log Co. v. M. P. Ry., 14 I. C. C. 553, the rate on walnut logs in excess of ll^/^c from 96 BLANKET RATES, §11 (f)— §12 (a) Newport, Ark., to East St. Louis was found unreasonable. In East St. Louis Walnut Log Co. v. C. R. L & P. Ry. Co., 14 I. C. C. 575, the rate on walnut logs in excess of 14i^c from Newport via the C. R. L & P. Ry. and the St. L. & S. F. R. R. to East St. Louis was found unreasonable to the extent that it exceeded 13c. The rate in effect at the ■ time of hearing from Newport via both routes was 11 ^/^c. Newport is a short distance east of Weiner. Nothing indicated that the conditions of trans- portation from Weiner and St. Francis to East St. Louis were different from those of traffic from Newport. Defend- ants exacted a rate of l^c higher on shipments to East St. Louis than to St. Louis. Shipments from Newport must cross the Mississippi River at St. Louis and the bridge arbitrary was absorbed in the rate. No reason was offered for the said l^/^c higher charge. No evi- dence was submitted as to the reason- ableness of rates from the Missouri state line to Thebes, which complainant attacked. HELD, the rates from Weiner, St. Francis and intermediate points were excessive to the extent that they ex- ceeded lli/^c per 100 lbs. Reparation awarded. No order entered with respect to rates from Missouri state line to Thebes, except an intimation that they should be adjusted. No ord^r entered with respect to the said li/^c higher rate to East St. Louis, except an intimation that no good reason existed therefor. East St. Louis Walnut Co. v. St. L. S. W. Ry. Co. of Texas, 17 I. C. C. 582, 583, 584. (f) In all cases of blanket or group rates there is of necessity more or less disregard of distance and varying de- grees of inequality, but such inequalities are not of necessity unreasonable or un- just when the situation is viewed from every standpoint, taking into account all interests. Reasonable approximation is the most that can be expected ordinarily. Chicago Lumber «& Coal Co. v. T. S. Ry. Co., 16 L C. C. 323, 334. (g) Complainants attacked the blanket rates on coal from the Walsenburg fields In southern Colorado to points in Kansas, Nebraska, Oklahoma, Texas and New Mexico. They presented comparisons of the rates attacked with those from other producing fields in Kansas, Iowa, Mis- souri, Wyoming, Illinois, Oklahoma and Arkansas, showing that the rates at- tacked yielded a higher revenue per ton mile. The rates from Walsenburg blanketed an extensive territory, and pro- duced a greater revenue per ton mile to the less distant points in the respective groups than to the more distant. The per ton mile revenue ranged from 15 mills for a haul of 216 miles to 4.9 mills for a haul of 761 miles. Some of the groups were 235 miles in extent. Com- plainants demanded that the size of the groups be reduced so as to produce lower rates to the nearer points therein. The Walsenburg fields had little competition, except at Canyon City, Colo. The mining conditions were very favorable for eco- nomic operation. The production under the rates attacked had been gradually in- creasing for a number of years. The* dis- trict was getting its full share of the busi- ness. The mines in the district were reached by spur tracks which were ex- pensive to build; the grades were ex- tremely heavy, requiring exceptional in- spection of cars and the employment of extra crews; the revenue derived had to be divided among several connecting car- riers. HELD, the rates attacked were not shown to be unreasonable. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co. 16 I. C. C. 387, 393. Colorado Coal Traf fie Assn. V. C. & S. Rv. Co.. 19 I. C. C 478. (h) The adjustment of a group ol rates as a whole might be just and rea sonable, even though each rate might not of itself be just and reasonable. Monroe Progressive League v. St. L. I. M. & S Ry. Co., 15 I. C. C. 534, 538. (i) Rates on oranges from Florida base points to territory north of the Ohio River ought not to be higher or the average than from California; bul the establishment of a blanket rate ap plicable to that territory is not justi fied. Florida Fruit & Vegetable Ship pers', etc., v. A. C. L. R. R. Co., 14 I C. C. 476. (j) Shipment moved soon after line had been opened for traffic and before rates were established. HELD, charges assessed were unreasonable to the ex tent that they exceeded what would have been collectable under a rate sub sequently established. Kennedy & Co V. V. Ry. Co., Unrep. Op. 530. §12. Reasonableness of Individual Rate, (a) Extravagant rates ought not to be imposed upon 90 per cent of the traffic BLANKET RATES, §12 (b)— §13 (bb) 97 in a group upon the pretext that a more favorable rate is granted to the other 10 per cent. Southwestern Missouri Millers' Club V. M. K. & T. Ry. Co., 22 I. C. C. 422, 425. (b) In making a blanket adjustment, the burden rests on the carrier to provide rates that shall not be unreasonable from any point of origin. Sawyer & Austin Lumber Co. v. St. L. L M. & S. Ry. Co., 21 I. C. C. 464, 46G. (c) Where the application of a blanket rate clearly results in imposing unjust and unreasonable transportation charges at the nearer point, this fact cannot be ignored or exceeded simply because a rate less than just is granted at the more dis- tant points. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 L C. C. 218, 226. (d) Complainant attacked the carload rate of 14c on cypress and yellow pine lumber from Woodson and Little Rock, Ark., to Memphis, Tenn. For many years Little Rock and Woodson were on the southern edge of a zone taking a rate of 8c to Memphis. They were subsequently transferred to the northerly edge of a zone extending from the Arkansas River to the Gulf of Mexico, and at approxi- mately the same time the rate from this southern zone was increased. The net result was to make two material in- creases in rates in rapid succession from Little Rocu and Woodson to Memphis, the rise being from 8c to 14c. Under the rates attacked, the per ton mile reve- nue from Little Rock and Woodson, 148 and 165 miles distant, respectively, to Memphis, was 19 and 17 mills, respec- tively, as compared with 5 and 8.9 mills, respectively, earned on lumber from New Orleans and Fort Smith to Memphis on distances of 559 and 314 miles, respec- tive. Under the rates to Memphis from points in Arkansas, located about the same distance from Memphis as Wood- son and Little Rock, the per ton mile earnings ranged from 11.4 to 14.4 mills. Lumber is low-class traffic, requires no special equipment, does not require ra- pidity of movement, loads heavily, and incurs little damage in transit. HELD, the rates attacked were unreasonable to the extent that they exceeded 10c. Fer- guson Saw Mill Co. V. St. L. L M. & S. Ry. Co., 18 I. C. C. 391, 393. (e) A blanket rate must not be such as to make an unreasonable rate from any given point. Ferguson Si Mill Co. V. St. L. I. M. & S. Ry. Co., 18 I. C. C. 391, 393. V. DISCRIMINATION. See Advanced Rates, §5 (2) (h); Dis- crimination, §9 (g), (H. §13. In General. (a) Complainant, a blast-furnace op- erator at Mount Dallas and Saxton, Pa., attacked the reasonableness of the rate of $1.45 per gross ton on ore han- dled direct from vessels to cars from Buffalo, N. Y., as compared with the same rate to competitive points further distant, namely, Pottstown, 405 miles from Buffalo; Swedeland, 422 miles, and Chester, 432 miles, and asked the same per-ton-per-mile rate to Mount Dallas and Saxton, distant 316 and 296 miles, re- spectively, from Buffalo, as the other points take. All these points are in the so-called eastern Pennsylvania group of which the average distance from Buffalo to all points taking the $1.45 rate is about 340 miles. This rate amounts to 4.6 mills per ton mile to Mount Dallas, 4.9 mills to Saxton and about 3.45 mills to Pottstown, Swedeland and Chester. HELD, while complainant pays a higher per ton mile rate than do the furnaces at the extreme limits, this is always so when a group point somewhat under the average distance is compared with the point farthest removed, and that, consid- ered solely as a group, the area covered by the $1.45 rate is not so extensive as to require condemnation. Thropp v. P. R. R. Co., 23 L C. C. 497, 498, 499. (aa) Blanket system on wool from Detroit to Boston, New York and Phila- delphia not found unreasonable, but present rates unduly discriminate against Detroit, whose rates on wool should not exceed 78 per cent of rate from Chicago. Traugott Schmidt & Sons V. M. C. R. R. Co., 23 L C. C. 684. (b) A group rate which imposes upon any part of the group an unreasonable or discriminatory transportation charge will not be upheld. Soutnwestern ]\Iis- Eouri Millers' Club v. M. K. & T. Ry. Co., 22 L C. C. 422, 425. (bb) Complainant alleged that the defendant's rate of 14c per 100 lbs. ^or the transportation of crossties on its line between Houston and Louis- ville, Miss., to Cairo, 111., was unrea- sonable and discriminatory in that it exceeded the rate of 12i^c to Cairo on like traffic from points on the same road 98 BLANKET RATES, §13 (c) — (g) north of Houston to New Albany, a distance of 43 miles, A 14c rate ap- plied to Cairo from all points between Mobile, Ala., and Houston, a distance of 282 miles. Formerly the rate had been 16c from all points on the line. A 121/^0 rate from points between Houston and New Albany was due to the following conditions: Defendant establishsd a 10c rate from New Albany to Cairo to meet the rate put into effect by a com- peting line. It made the rate from points between Houston and New Al- bany 121^0 in order that it might obtain its division of the through rate which was greater from these stations than the mileage rates established by the Mississippi Railroad Commission. From points south of Houston, combination rates up to New Albany and a 10c rate from that point were equal to or greater than the 14c rate, so that to them this condition did not apply. While the rates of some competing lines were somewhat lower than rates from points in question on the defendant's line, the zones from which they applied were more extensive and included stations which corresponded as to distance with the defendant's 12i^c zone. De fendant's line is new, poorly equipped and lacks the density and variety of traffic enjoyed by older lines. HELD, that the rate was not unreasonable. The fact that the defendant in the division of joint rates receives a larger amount than some competitors for a shorter haul does not make it neces- sarily unreasonable. The proportions received by carriers in the division of joint rates ordinarily affords little basis on which to determine the reasonable- ness of joint rates. The Commission will not disturb grouping of points within reasonable limits for the purpose of making rates in the absence of proof that as to particular points in a zone the adjustment results in unreasonable rates or undue prejudice and disad- vantage. Stiritz v. N. O. M. & C. R. R. Co., 22 L C. C. 578, 581. (c) In application of group rates a discrimination of necessity arises be- tween near and far edge of group; but in most cases this discrimination is not undue. Southwestern Missouri Millers' Club V. M. K. & T. Ry. Co., 22 I. C. C. 422, 424. (cc) The Commission has never ap- proved of a group rate which imposed upon any part of the group an unjust and unreasonable or unduly discrimina- tory transportation charge. Southwest- ern Missouri Millers' Club v. M. K. & T. Ry. Co., 22 I. C. C. 422, 425. (d) In all group systems there is an inequality of rates when distance alone is considered, as between points on one side of a group and those on the other side. Saginaw Board of irade v. Grand Trunk Ry. Co., 17 I. C. C. 128, 136. (e) Whether or not the grouping of points of origin or points of destination constitutes undue or unjust discrimina- tion must be determined from the facts in each case. Muskogee Traffic Bureau V. A. T. & S. F. Ry. Co., 17 L *C. C. 169, 173. (f) A carrier cannot lawfully so group its mines with respect to rates as to unduly discriminate against any locality. The duty imposed by law is to give equal treatment to all shippers who are in po- sition to demand it, and this includes the right to reach competitive markets on relatively equal terms. Where the same carrier serves two districts which, by their location, the character of their output and distance from markets, are in substantially similar circumstances and conditions, it cannot lawfully prefer one to the other in any manner what^ soever. Black Mountain Coal Land Co. V. S. Ry. Co., 15 I. C. C. 286, 292. (ff) Because the revenue per ton per mile yielded by rates from farther dis- tant points is less than that yielded by rates from a shorter distant point, it does not necessarily follow that the latter is subjected to unjust discrimina- tion. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 513. (g) Complainant attacked the rates on lump coal of $4.50 and $3.50 per ton from Rock Springs and Hannah, Wyo., re- spectively, applying to all points be- tween the Nebraska-Wyoming line and Omaha on the main line of defendant, and from Kearney, Neb., to Callaway, Neb., on its branch line. The distance from Rock Springs to Smeed, the most west- ern Nebraska point, was 341 miles and to Omaha 809 miles; from Hannah to Smeed, 182 miles; from Hannah to Omaha, 650 miles. Defendant's rate from Rock Springs to Cheyenne, Wyo., 293 miles, and Denver, Colo., 400 miles, and points between these two cities was a blanket one of $2.30, voluntarily estab- BLANKET RATES, §13 (h)— §16 (a) 99 lished. The distance from Cheyenne to Smeed, Neb., is only 48 miles, yet the rate from Rock Springs to Smeed was $2.20 higher than to Cheyenne, the rate to Smeed yielding 4i/^c per ton mile and to Cheyenne 7.8 mills per ton mile. The Hannah to Cheyenne rate yielded 1.2c per ton mile, and the Hannah to Smeed rate 3.9c. From Rock Springs and Han- nah to points in Kansas the average yield was something over 5 mills per ton mile. The yield from Rock Springs and Han- nah to Omaha was 5.6 and 5.4 mills per ton mile, respectively. Defendant met the competition of other roads at Omaha, Sidney, Kearney and Grand Island, Neb., but had no competition at any other point on the entire haul through Nebraska. In the purchase of the coal in question, Nebraska communities competed with those in Wyoming and Utah, and defend- ant used this situation to enforce the rates attacked to points in Nebraska. HELD, the rates to Omaha were not un- reasonable; that the rates to points in western Nebraska were unreason- able; that a blanket rate to all points in Nebraska was unjustifiable, and that said territory should be broken up into zones and the lower rates speci- fied in the opinion applied. Nebraska State Railway Comm. v. U. P. R. R. Co., 13 I. C. C. 349, 355. (h) Complainant, operating a paper mill at Rhinelander, Wis., attacked the rates upon pulpwood C. L., Duluth, Minn., to Rhinelander, and the rates upon paper C. L., Rhinelander to points east of the Mississippi River. Its competitors were located in the Fox River District, Wis,, the points there being 100 to 150 miles farther from Duluth and nearer to Chi- cago than Rhinelander. The rate on pulp wood from Duluth to Rhinelander and to Fox River points was 8c; on paper, the rates from Rhinelander to points east of the Mississippi River were 2c above those from Fox River points. Since the hearing, defendants established the rate of 6.95c On pulp wood from Duluth to Rhinelander, leaving the rate of 8c to Fox River points in effect. The only evi- dence offered of the unreasonableness of the 6.95c rate was that the long distance carrier from Duluth to Rhinelander made the same rate. Wisconsin was divided into three groups for rate-making pur- poses, on paper, destined to points east of the Mississippi River. The Fox River group took a 10c rate to Chicago, the Rhinelander a 12c, the group north of Rhinelander a 13c. To show the Rhine- lander rate on paper unreasonable, com- plainant offered comparisons of ton-mile rates in other parts of the country. Rhinelander was only 40 miles further from Chicago than Brokaw, a point in the Fox River group, but the great bulk of the Fox River traffic moved from points from 100 to 150 miles nearer to Chicago than was Rhinelander. HELD, the said 6.95c rate on pulp wood from Duluth to Rhinelander was not shown lo be unrea- sonable; that a comparison with the rates in other parts of the country, where dif- ferent physical, competitive and traffic conditions e;^isted, was insufficient to es- tablish th0 unreasonableness of rates; and, therefore, since inequalities must necessarily exist in any group system, the rates on paper from Rhinelander to points east of the Mississippi River were not saown to be unreasonable, or unduly discriminatory. Rhinelander Paper Co. V. N. P. R. R. Co., 13 I. C. C. 633, 634-637. VI. REMEDY FOR UNLAWFUL GROUP- ING. §14. In General. (a) The Commission has repeatedly recognized and approved the grouping of points, within reasonable limits, for the purpose of making rates, and it will not disturb such groupings in the absence of proof that as to particular points in the zone the adjustment results in unreason- able rates or undue prejudice and dis- advantage. Stiritz V. N. O. & C. R. R. Co., 22 I. C. C. 578, 581. §15. Scope of Complaint. (a) Where a graded distance tariff is asked for in a complaint, but the general question of groupings is little discussed upon the hearing, the Commission will only recommend the grading asked for with leave to the complainant to raise the point at a later time. Corn Belt Meat Producers' Ass'n v. C. B. & Q. Ry. Co., 14 L C. C. 376, 396. VII. EVIDENCE. §16. Burden of Proof. See Evidence, I. (a) Complainant attacked the reason- ableness of a rate of 85c per 100 lbs. on lima beans in carloads moving from cer- tain points in California to Omaha. For nine years (January 18, 1900, to January 1, 1909) defendants had maintained with some variations in the carload minimum 100 BLANKET RATES, §16 (b)— §17 (c) weight a blanket rate of 75c per 100 lbs. on lima beans from certain California points to Colorado and Texas, and all points East in practically the whole of the United States except southeastern territory. The rate was then advanced to 85c for six months and then re- duced to 75c again (June 5, 1909). Nine months later the rate was again ad- vanced to 85c (March 22, 1910). Foreign lima beans were imported through Gal- veston, Tex., as follows: One ton in 1907, 129 tons in 1908, 900 tons in 1909. In 1908, 9,671 tons of California beans moved to Texas and 11,136 tons in 1909. In 1906, 1,145 tons moved from Califor- nia to the eastern seaboard by water, 758 tons in 1907, 653 tons in 1908, 2,990 tons in 1909. A carload of lima beans, minimum 40,000 lbs., is worth from $1,500 to $2,000, and the carload earnings on the 85c rate, $340. Oranges load to an average weight of 27,648 lbs. Average value, $576; earnings under the blanket orange rate of $1.15 per 100 lbs. to any point in the same territory, about $320. HELD, beyond the general ground that the earnings of the defendants were al- ready yielding an ample return on the investment and the long continuance of the prior rate of 75c, there was prac- tically no endeavo-r of record to show that the present rate of 85c is an un- reasonable rate; and that on the record before the Commission no i^round is properly presented on which it may base a finding that this rate on lima beans in carloads from California points to points in the extensive territory to which it is applicable is an excessive rate when considered as a blanket rate; and that there are no grounds upon the record for taking Omaha out of a blanket territory with which it has long been associated, in this and other traffic, without protest from any quarter, as would be the case on a finding that the 85c rate applicable throughout the territory is an excessive rate to that particular point. Such a holding would require a readjustment of the whole rate structure on California products moving to the East and would not be to the real interest of either the producer, consumer or carriers. As an average rate applicable to Omaha and to all points east of Omaha, including the Atlantic seaboard, the 85c rate is not con- sidered excessive. Commercial Club of Omaha v. Southern Pacific Co., 20 I. C. C. 631; Pueblo Commerce Club v. A. T. & S. F. Ry. Co., Unrep. Op. 427. (b) It may be generally true that a system of blanket rates from a produc- ing section is fair and just to all parties concerned, although it necessarily in- volves rates that are somewhat high for the distance from points on the edge of the blanket nearest the points of desti- nation, but in making such an adjustment the burden rests upon the carrier to pro- vide rates that shall not be unreasonable from any point of origin. Ferguson Saw Mill Co. V. St. L. I. M. & S. Ry. Co., 18 I. C. C. 391, 393. (c) A group rate will not be disturbed or be held to constitute an undue' prefer- ence against a point lying a short dis- tance outside the group without proof of tangible injury resulting to the com- plainant. Bovaird Supply Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 66. §17. Extent of Zone. (a) Large blanket rates may be justi- fied for long distances which would not be for shorter distances. Mutual Rice Trade & Devel. Ass'n. Houston, v. I. & G. N. R. R. Co., 23 I. C. C. 219, 224. (aa) Where rates in question are blanket rates, applying from producing points in California to all territory east of the Rocky Mountains, except the southeast, the Commission, in passing upon the reasonableness of a rate to this wide territory, must consider the average haul, Arlington Heights Fruit Exchange v. S. P. Co., 22 I. C. C. 149, 152. (b) In instituting comparison with, or in passing upon the reasonableness of, a blanket rate neither extreme of the group should be considered, but rather a fair average. Oregon & Washington Lumber Mfrs. Co. v. S. P. Co., 21 L C. C. 389, 392. (bb) Transcontinental railroads have made a near approximation to postage- stamp system of rate making. R. R. Com- mission of Nev. V. S. P. Co., 19 t. C C. 238, 239. (c) Complainant shippers of salt at Muskogee, Okla., attacked the rate of 22%c on salt from Kansas producing points to Muskogee as compared with the rate of 15c to Ft. Smith, Ark. Fort Smith was 84 miles farther distant than Muskogee from said points of origin. Complainant demanded on this ground that the rate to Muskogee be made 3c less than to Fort Smith. Subsequent BLANKET RATES, §17 (cc)— BRANCH LINES 101 to the filing of the complaint defendants established a rate of 19c from the points in question to both Muskogee and Fort Smith. Kansas salt came into keen competition with Michigan salt and under the rates attacked could not com- pete with such salt at Muskogee. Under the new rates the charge from Michigan points to Fort Smith was 29%c and to Muskogee 31c. It appeared that rates on salt in the Kansas and Arkansas ter- ritory in question had been blanketed over a territory of 234 miles for the puri>ose of placing producers on an equal competitive footing. HELD, dis- tance and ton mile comparisons, al- though often helpful in reaching a con- clusion in respect to the reasonableness of rates, could not be made the sole test so as to deny consideration to many other potent and controlling forces, and taking into consideration the established grouping of points in the territory in question, the newly estab- lished rates should not be disturbed. Muskogee Traffic Bureau v. A. T. & S. F. Ry. Co., 17 I. C. C. 169, 172, 173. (cc) Rates made with respect to vast groups, and adjustments with respect to crossings, such as the Mississippi River crossings, extending more than 700 miles, cannot be considered solely from the standpoint of mileage from nearest air- line gateway to a particular section of the group. Williams Co. v. V. S. & P. 1 y. Co., 16 I. C. C. 482, 484. §18. Comparisons. See Comparative Rates. (a) In a comparison with blanket rates, neither extreme of the group should be considered, but rather a fair average. Oregon & Washington Lumber Mfrs. Ass'n v. S. P. Co., 21 1. C. C 389. 392. (b) Terminal rates, such as a blanket ■rate from the Mississippi River to the Atlantic seaboard to all Pacific terminals, are low and not a fair measure of rates generally. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 I. C. C. 05, 67. (c) Because in a blanket adjustment the same rate is made to branch-line as to main-line points does not justify unrea- sonable rate to any point. Idaho Com- mercial Clubs V. O. S. L. R. R. Co., 18 I. C. C. 562, 564. (d) On potatoes in carloads from Kempton, and adjacent points comprising the Harrisburg group, Pennsylvania, to points in the Hartford groups lying in New York and New England, complainant was assessed $3.40 per ton. The rate from points in the New Jersey groups lying east of the Harrisburg groups was $2.80. The rate on cement from mills in both the Harrisburg and New Jersey groups to water points in the Hartford group was $1.45, and to inland points, ^i.25. Potatoes moved only about three months during the fall of the year. Ce- ment moves in steady volume throughout the entire year, and is a low-grade prod- uct usually movinj under commodity rates. Potatoes for 20 years have usu- ally taken fifth-class rates along with other coarse food products. Cement in the territory in question took a mini- mum of 50,000 lbs.; potatoes, 30,000 lbs. A carload of cement is worth $125., and potatoes $300. Many other differences respecting the difficulty in cost of car- riage existed between the two commodi- ties. HELD, since points lying just across the line dividing adjacent groups must necessarily take different rates, and since the rates compared by complainant were on commodities utterly dissimilar, the rate attacked was not shown to be unreasonable or discriminatory. An- thony v. Philadelphia & Reading Ry. Co., 14 L C. C. 581, 583. (e) A comparison of a blanket rate with rates in other parts of the country where different physical, competitive and traffic conditions exist is insufficient to establish the unreasonableness of the < blanket rate. Rhinelander Paper Co. v. N. P. R. R. Co., 13 I. C. C. 633, 634, 637. BRANCH LINES. I. REASONABLENESS OF RATES. §1. In general. §2. Compared with main I'nes. §3. As part of system. §4. In competition with main lines. II. DUTY TO ROUTE. §5. In general. CROSS REFERENCES. See Advanced Rates, §12; Cars and Car Supply, §21; Evidence, §37, §51 (J); Reparation, §12 (f). I. REASONABLENESS OF RATES. §1. In General. See Differentials, §6 (b); Discrim- ination, §4 (e); Long and Short Haul, §7 (gg); Reasonableness of Rates. §11 (e), §20 (d). (e). (f), (g); Switch Tracks c-nd Svy^itchlng, §7 (b), (c), (1). (m). ,<»<.> ^C<^»f«t 102 BRANCH LINES, §1 (a) — (f) (a) Complainant alleged that there was undue discrimination against Reno in that the rates charged from Reno to the several points on defendant's lines were higher than the division of the joint rate from San Francisco and from Sacramento received by defendants for the same hauls. The bulk of the northbound traffic of the defendant is through traflSc orig- inating in San Francisco and destined to a competitive territory served by the Southern Pacific and Western Pacific railroads as well as defendant. The great part of defendant's business is traffic given it by the Southern Pacific, and it is, therefore, compelled to receive from the Southern Pacific whatever pro- portional rates that road will give it, as otherwise the Southern Pacific could de- prive it of the haul. The Western Pa- cific, recently built, is also a very serious competitor to defendant. HELD, that good reasons exist why the through rate may be less than the combination rate via Reno and that the proportional rate therefore affords no criterion as to the reasonableness of the' local rate, and, therefore, no discrimination is shown to exist. On account of the severe competi- tion of the Western Pacific, recently com- pleted, and the fact that defendant has from time to time appeared to reduce its rates to suit new conditions, any further reduction by the Commission at present seems unwarranted, especially as local rates in Nevada on other small roads are on an exceptionally high scale. There- fore, the rates cannot be held to be un- reasonable. Railroad Commission of Nevada v. N. C. O. Ry. & S. V. Ry. Co., 22 L C. C. 205. (b) It is too speculative in determining reasonableness of present rates to con- sider as a factor the fact that such part of a railroad as is devoted to the carriage of coal will lose its earning capacity through exhaustion of that commodity. Meeker & Co. v. L. V. R. R. Co., 21 I. C. C. 129, 153. (c) Complainant alleged unjust, un- reasonable and discriminatory rates on cabbage, potatoes and other vegetables from the so-called Charleston, S. C, "truck-growing district" to Buffalo, N. Y., and Pittsburgh, Pa. Reparation asked on shipments that moved April 21 to June 10, 1911. On April 1, 1910, just prior to the opening of the season for shipments from the Charleston district, rates on potatoes and cabbages were advanced ap- proximately lie, and on vegetables n. o. s. approximately 20c per 100 lbs. At the close of the season about October 1, 1910, the rates were reduced again to about where they were before except on vege- tables n. o. s., on which about half of the advance was canceled. The reduced rates were somewhat lower than the com- binations on Baltimore. The complaint suggested the Baltimore combination as a measure of what would be reasonable. HELD, the carload rates from Charleston to Buffalo and Pittsburgh were unreason- able and unjust to the extent they ex- ceeded the combinations on Baltimore, but that on account of the additional ex- pense incident to traffic from branch lines the following differentials over Charleston might be charged, from Meggetts. Wad- malaw River and Yonges Island, potatoes, 2c; cabbages, 214c; vegetables n. o. s., 8c ; from St. Andrews, potatoes, 2c; cabbages, 2i^c; vegetables n. o. s., 4c; but that the rate from Charleston to Buffalo or Pitts- burgh should not in any case exceed the combinations on Baltimore. Reparation awarded. League of Commission Mer- chants V. A. C. L. R. R. Co., 20 I. C. C. 132, 135. (d) Complainant shipped a carload of empty beer bottles, Capitan, N. M., to El Paso, Tex., under a rate of 94c per 100 lbs. for the haul, 165 miles. Defendants' rate on iron, scrap and junk between the points mentioned was 10c, and their rate on lumber for the same distance was 21c, on wheat 22%c; on hay and grain, ex- cept wheat, 18^/4 c. Defendants asserted Capitan was on a branch line and the volume of traffic was light. HELD, a rate of 15c per 100 lbs. on a minimum weight of 20,000 is reasonable. Repara- tion awarded. Gumm v. E. P. & R. I. Ry. Co., 20 I. C. C. 237. (e) It is necessary that carriers be permitted to charge rates on branch lines that are fully compensatory for the serv- ices they perform so long as they are not unreasonable. Morgan Grain Co. v. A. C. L. R. R. Co., 19 L C. C. 460, 471. (f) W^here a city has constructed a railroad in order to reach a certain mar- ket and leases the same to another rail- road, questions of reasonableness of rates stand exactly as if the road had been built by private capital. Receivers' & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 464. BRANCH LINES, §1 (g)— §2 (a) 103 (g) Circumstances and conditions are different at main-line points than at branch-line points. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C, 12, 18. (h) Complainant miners located in western Colorado at Cameo and South Canon attacked the rates on coal from those points to points in Utah, Nevada, California, Oregon, Washington, Idaho and Montana as unreasonable compared with rates from other producing fields served by defendants in Wyoming and Utah, especially Rock Springs, Wyo., and asked for the establishment of joint through rates. Comparison of the per ton mile revenue from the points in question showed that complainants were charged higher rates than their conf^Detitors. Spe- cial operating difficulties were encount- ered by defendants in hauling coal from Cameo and Canon City, not met with at other producing points, such as high grades and sharp curves, which resulted in defendants being forced to carry a much lower tonnage per train than from other producing fields. The traffic from Cameo and South Canon moved from points of origin from 264 to 324 miles through desert country, before reaching a junction at which it might be delivered to a line reaching Nevada or California. Rock Springs was most favorably located with respect to the markets complainants desired to reach, being a local point on the U. P. R. R. The carriers connecting with the lines at Cameo and South Canon were in poor financial condition and in- sufficiently equipped with cars to engage in joint traffic. The rates attacked were subsequent to the hearing substantially reduced, although not to the point 6^- manded by complainants. HELD, on ac count of the difficulties of transportation encountered at Cameo and Canon City, the rates attacked were not shown to be unreasonable. Request for the establish- ment of joint rates and routes denied. Grand Junction Mining & Fuel Co. v. C. M. Ry. Co., 16 I. C. C. 452, 457. (i) Talmage and Brock, Neb., located on a branch line of defendants, are nearer to St. Louis than Lorton and Dunbar, located on the same branch line. Paul and Julian, Neb., are located on the main line of defendant, a short distance east from Dunbar, south. Rates from Tal- mage and Brock, on coi-n and wheat in carloads, to St. Louis were higher than for the longer haul from Lo-rton and Dun- bar to St. Louis. They were also higher than rates from Paul and Julian to St. Louis. The lower rate from Dunbar was due to the competition of another carrier, which was subject to the low rates pre- scribed by the Nebraska legislature. Tal- mage and Brock were not subject to this competition. Paul and Julian were the same distance as Brock and Talmage from Auburn, on defendant's line, at which point all shipments to St. Louis were concentrated. HELD, the lower rates from Lorton and Dunbar were justi- fied by competitive conditions, but the Talmage and Brock rates should be re- duced, so not to exceed those from Paul and Julian. Bartling Grain Co. v. M. P. Ry. Co., 16 I. C. C. 494, 496. (j) There is a material difference be- tween a reasonable amount to be added for additional mileage on a straightaway long haul and a reasonable allowance to be added for an out-of-line haul which involves two and probably three terminal services. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 15 I. C. C. 491, 495. (k) Complainant attacked the rates on groceries from southern points to An- thony, Kan., as compared with those to Wichita, Winfield, Hutchinson and Ar- kansas City, which points were more dis- tant from gulf ports than Anthony and took on rice and sugar a rate of some 6c lower than the rate to Anthony. From points in the East, Anthony was more distant than such other competitive points and the lower rates to them were established by eastern carriers. Later the carriers from th ) South became com- petitors in hauling the goods to these cities. HELD, these new conditions, coupled with the fact that Anthony was entitled to the benefit of its proximity to gulf ports, required a reduction in differentials from about 6c to about 3c on shipments from southern points, the latter differential to be left in effect in view of the fact that Anthony was reached only by branch lines, while most of the other points were reached by main lines. Anthony Wholesale Grocery Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 605, 608, 609. §2. Compared with Main Lines. See Comparative Rates, (a) A tap line carrier charged 3l^c per 100 lbs. for a haul of 20 miles. HELD, the per ton mile earnings of a small car- rier having only short hauls and light 104 BRANCH LINES, §2 (b)— §3 (c) business may properly exceed the per ton mile earnings of stronger lines partici- pating in heavier traffic which moves for considerable distances. Burton v. U. V. R. R. Co., 20 I. C. C. 75. (b) The tariffs in effect prior to April 1 and those of April 1, 1910. named the same rates on vegetables from branch line points as from Charlestown to Buf- falo and Pittsburgh, but the subsequent tariffs named through rates from the branch line points higher than the rates from Charlestown. Rates from branch line points to the Ohio River are higher than rates from Charlestown to the Ohio River, but the same relative differences have not been observed in the construc- tion of the through rates to Buffalo and to Pittsburgh. HELD, in consideration of the extra service performed and the addi- tional expense incident to traffic from branch lines, the Commission does not here regard it as improper to charge reasonably haore from such points than from main line points. It sees no reason, however, for any higher differentials on shipments to Buffalo and Pittsburgh than on like shipments to Baltimore. League of Commission Merchants v. A. C. L. R. R. Co., 20 L C. C. 132, 134. (c) Rates on a branch line may law- fully be higher than on main lines serv- ing the well-developed territory where the density of traffic is much greater. Com- mercial Club of Omaha v. C. & N. W. Ry. Co., 19 1. C. C. 156. (d) The Commission does not feel justified in requiring a newly constructed line with a comparatively meager traffic to join in the establishment of rates on cotton linters as low as those applying from points located on the rails of car- riers more firmly established. Du Mee. Son & Co. V. A. T. & N. R. R. Co., 19 L C. C. 575, 576. (e) A new line is not required to es- tablish as low a rate as a more firmly established road. Du Mee, Son & Co. v. A. T. & N. R. R. Co., 19 L C. C. 575, 576. (f) Rates on a branch line, on traffic coming in over another line, may be higher than on the main line. Acme Cement Plaster Co. v. C. & N. W. Ry. Co., 18 L C. C. 105, 106. (g) Higher rates may be made to points on a branch line, with proper limitations, than to main-line points. Idaho Commercial Clubs v. O. S. L. R. R. Co., 18 I. C. C. 562, 564. (h) When the co^t of transporting matter to and from a point on a branch line increases, rates ought to be some- what higher for that reason. Maricopa County Commercial Club v. Wells, Fargo & Co., 16 I. C. C. 182, 184. \ (i) Not all branch lines having switch' connections with a main line are enti- tled to joint rates. Rahway Valley R. R. Co. V. D. L. & W. R. R. Co., 14 I. C. C. 191. §3. As Part of System. (a) Complainant attacked rates from Billings, Mont., to points in Wyoming on branch lines of defendant. HELD, that these branch lines traverse a new coun- try, where transportation conditions are difficult and Uie volume of business com- paratively small. These lines, however, are operated as part of a great and pros- perous system; they are feeders to the main line and help to swell the revenue of that line. A part of any great railroad system might be selected, and counting cost of operation and fixed charges such part be shown to be unprofitable. This, however, would not truly indicate its value and profitableness as an integral part of the whole property. The fact that these branch lines considered by themselves fail to show large earnings does not justify the charging of unrea- sonable rates. Billings Chamber of Commerce v. C. B. «S: Q. R. R. Co., 19 1. C. C. 71, 75. (b) If the branch lines of a railroad are judiciously planned and constructed they should certainly be taken into ac- count in determining the value of the railroad, for although they may not earn a large return upon the cost considered as an independent proposition, they do add to the traffic and the earning power of the entire system; but it must be as- sumed that the new branches which have been constructed are good investments, otherwise they would not have been built, and that they will add to the earnings of the property in proportion as they have added to its cost. No increase in rate should be called for on this account. City of Spokane v. N. P. Ry. Co., 19 L C. C. 162, 171. (c) On carloads of cement plaster from Laramie, Wyo., via the U. P. R. R. to Norfolk, Neb., thence via the Niobrara branch of the C. & N. W. Ry., the rate to Norfolk was 10c, minimum 60,000 lbs., and 15c, minimum 30,000 lbs., on ship- BRANCH LINES, §3 (d)— §4 (b) 105 ments destined beyond, which rates yielded 3.8 and 5.G per ton mile respect- ively. From Norfolk to points on said Niobrara branch, the rates were from 9c to 221/^c. No joint rates were in effect from Laramie to said points, but the traffic moved under through billing. Complain- ant attacked the rates from Norfolk and demanded a blanket rate of 7i^c. The construction of the Niobrara branch was expensive, the grades severe, traflSc light, and cost of operation heavy. Cement plaster was shipped from points in Iowa and South Dakota in competition with Laramie and from one of these points, Rapid City, the C & N. W. Ry. had the entire haul. Although, the rates at- tacked were established by the Nebraska Commission, it had never passed upon the reasonableness of the same. The rates attacked were higher than those upon cattle, a trifle lower than those upon hogs, and higher than lumber and grain rates. Cement plaster loads readily to the marked capacity of the car with little risk of loss or damage in transit. Its value per ton at the mill is some $2 for white piaster and $3 for brown plaster. The minimum published on the Niobrara branch was 24,000 lbs. upon grain, 22,000 lbs. on cattle and hogs, and 30,000 lbs. on lumber. HELD, the complainant's con- tention that in constructing the rates in question upon said branch it should be considered as a part of the C. & N. W. Ry. Co.'s system and such rates applied as would be reasonable for the average railroad in that section was untenable, but that the rates attacked were unrea- sonable and should be reduced. Repara- tion denied. (Harlan, commissioner, dis- senting.) Acme Cement Plaster Com- pany V. C. & N. W. Ry. Co., 18 I. C. C. 105, 106, 107. (d) Commission rates are usually the same for all lines, both main lines and branches. It is fair that the main line should in a degree contribute to the sup- port of the branch line, for the branch- line business when it reaches the main line is surplus traffic from which a larger profit is made. It is in the public inter- est that rates shall be so adjusted that population and industries may freely diffuse themselves. In determining the reasonableness of rates upon a main line based upon earnings, reference must be made to the earnings of branch lines which contribute to it. Receivers & Shippers Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 465. (e) While carriers are justified within proper limitations in making somewhat higher rates to branch-line points than to main-line points, where the same rate is applied to all points both on the main and branch lines, it is to be tested as a whole. Idaho Commercial Clubs v. O. S. L. R. R. Co., 18 I. C. C. 562, 564. (f) The fact that a rate is made ap- plicable to certain destinations irrespect- ive of whether most of them are located on branch lines does not justify an un- reasonable rate to any of the destinations involved, but the reasonableness of the rate is to be tested as a whole. League of Southern Idaho Commercial Clubs v. O. S. L. R. R. Co., 18. L C. C. 562, 564. (g) The fact that rates on other parts of the carrier's system are forced down by competition to a very low point, does not justify a higher rate to a point lo- cated on a branch line, since such point is entitled to the reasonable rate which its location and other advantages dictate without taking into account conditions which bring about lower rates to other points. Board of Trade of Winston- Salem V. N. & W. Ry. Co., 16 I. C. C. 12, 16. (h) What might perhaps have been proper as between companies operating separate and distinct short lines may be- come unreasonable and unjust when both are absorbed by a large system which serves an extensive territory. Black Mountain Coal Land Co. v. Sou. Ry. Co., 15 L C. C. 286. §4. In Competition With IVIan Lines. (a) It is almost axiomatic that rates cannot be made so as to give high earn- ings to a poorly placed, indifferently of>- erated, or an isolated road, without mak- ing rates extortionate. In Re Advances in Rates— Western Case, 20 I. C. C. 307, 377. (b) Complainants attacked class rates in both directions between Chicago, the Mississippi River and the Missouri River upon the one hand, and Utah common points upon the other; westbound com- modity rates from the above-named east- ern points of origin to Utah common points; eastbound rates on certain prod- ucts of Utah to the Missouri River, Mis- sissippi River and Chicago; rates on de- ciduous and citrus fruits from points of 106 BRANCH LINES, §4 (c)— BRIDGE TOLLS, I (a) production in California to Utah common points; import rates upon certain com- modities through Pacific Coast ports to Salt Lake City; passenger fares in both directions between Utah common points upon the one hand and Denver, Omaha, Los Angeles, San Francisco and Portland upon the other. The two lines mainly involved in the case are the U. P. and D. & R. G. R. R's. The per cent of re- turn upon the cost of the property of the U. P. R. R., according to its own state- ment, from 1899 to 1909 has averaged between 6 and 7, and for the last four years from 7.41 to 8.66. In 1909 its ton mile earnings were 1.004c and its per cent of operating expenses to gross in- come, 48.52c. Its earnings exceed those of any group in the United States except group No. 2, which it nearly equals. The financial showing of the D. & R. G. R. R. is nothing like as favorable as that of the Union Pacific. It is situated for the most part among the mountains. Its cost of construction was high, and the expense of operation was much greater than that of the U. P. R. R. It is the claim of this company that the Commission should de- termine the reasonableness of these rates with reference to the cost of handling the traffic by its line, and with reference to its financial necessities, and not with reference to the U. P. R. R. The D. & R. G. R. R. was built for the purpose of hand- ling the local business tributary to its line. No railroad would ever have been built where this one is for the main purpose of handling through business like that under consideration. Its branch lines aggregate 2i^ times the mileage of its main line over which this traffic passes. The great bulk of its tonnage to-day is from local business. Its line is longer than that of the Union Pacific between all points. HELD, that in determining a freight rate which must of necessity be charged by competing lines, the Com- mission would not look exclusively to that line which could handle the busi- ness the cheapest, or which was the strongest financially, but would consider as well the weaker rival. But that on the other hand it would not permit the maintenance of unreasonable rates sim- ply to give revenue to the weakest car- rier; that from a consideration of all the facts the class rates are unreasonable and should be reduced as stated in the attached schedule; similarly with respect to the commodity rate. The eastbound rates upon catsup are reduced to 85c to the Mississippi River and Chicago, and the other eastbound rates reserved for future consideration; the citrus and de- ciduous fruit rate reduced to $1 per 100 lbs.; the proportional import rates at- tacked are reduced to those contempo- raneously in force to the Missouri River. The passenger rates reduced, as stated in the schedule. A formal order will not be issued until an actual test has been made. Commercial Club, Salt Lake City, v. A. T. & S. F. Ry. Co., 19 L C. C. 218. (c) In establishing a reasonable rate the strongest line should not alone be considered; the necessities of the weaker line must also be taken into account. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 394. II. DUTY TO ROUTE. §5. In General. (a) Small initial lines should be par- tially relieved of responsibility for cor- rect routing. Duluth & Iron Range R. R. Co. V. C. St. P. M. & O. Ry. O., 18 L C. C. 485, 489. BREAKING OF RATES. See Facilities and Privileges, §21 (bb); Reasonableness of Rates, §28 (a). BRIDGE TOLLS. I. REASONABLENESS. See Evidence, §51 (aa); Reasonable- ness of Rates, §11 (b), §30 (a). (a) The argument that a bridge a mile long ought to be regarded as sim- ply a mile of the carrier's track and ought not to be the foundation of any separate or higher charge is not the generally accepted view. By reason of the great cost of such structures a bridge has been regarded more or less gen- erally as adding a constructive mileage to the carrier's line, for which an addi- tional charge may be exacted. More- over, bridges are ordinarily built and operated by separate companies, although not infrequently the bridge companies are owned by the carrier or carriers that use the bridge. As a rule, the accounts of the bridge company are kept sepa- rately, and the rights of the owning car- rier or carriers to use the bridge and the compensation therefor are estab- lished and controlled by formal contract. The compensation is ordinarily fixed in the form of a definite toll per passenger, and sometimes a more or less definite BRIDGE TOLLS, I (b)— BUSINESS SECRETS, I (a) 107 charge is assessed on freight. The car- riers usually lay the burden upon the traveling and shipping public by adding the tolls to their regular fares and rates, and these additional charges have been recognized as valid by the Commission. Railroad Commissioners of Iowa v. I. C. R. R. Co., 20 I. C. C. 181, 188. (b) The I. C. R. R., one of the defend- ants, for all practical purposes owns the Dubuque bridge over the INIississippi, con- necting East Dubuque, 111., with Dubuque, Iowa, a distance of approximately 1.6 miles. The total value of the property as assessed is $1,864,048. The evidence in- dicates that approximately this sum has been spent on the bridge, including re- placements and betterments, and the original cost, $589,989.92, but exclusive of ordinary maintenance and repairs. The net income of the bridge company from the carriers which are its tenants is ap proximately $181,000 a year. The actuaf gross revenue, however, to the I. C. R. R. is from $70,000 to $80,000 annupUy, out of which it pays its proportion with the other tenants according to wheeJage of the cost of maintenance, repairs and taxes. The defendants charge an arbi- trary of 25c per passenger and mileage, on all passengers traveling between Il- linois points west of Chicago and all sta- tions in Iowa, including Dubuque. The Commission finds from an investigation of other bridge tolls that they range up to 50c, the more usual toll being 25c. To reduce the Dubuque toll would cause an extensive disturbance of the passenger schedule in effect in this region. HELD, the arbitrary exacted to be reasonable. Complaint dismissed. Railroad Commis- sioners of la. V. I. C. R. R. Co., 20 I. C. C. 181. (c) The fact that the net revenues of a carrier from its ownership of a bridge on which an arbitrary is charged for pas- sengers and freight carried across the same may be greater than the returns on ordinary business enterprises is not suf- ficient in itself to justify a holding that the bridge tolls are excessive. Bridges are and have been regarded as precarious property. They may be damaged or en- tirely swept away by floods and erection of other bridges nearby may draw away their tenants, and thus seriously affect their earning capacity. The net revenues have an undoubted and also an impor- tant bearing upon the question of the reasonableness of rates, but the value of the service to the shipper and the other elements iso often referred to as entering into the reasonableness of rates must also be taken into consideration. A railroad company may be operated with a less return than it ought to en- joy or even at a loss, but neither condi- tion of affairs would justify ^he exaction by it of rates that are higher than they reasonably should be for service per- formed, all things being considered. So also the fact that the net earnings of a carrier may be large does not of itself justify the Commission fixing a rate at less than is reasonable for the service, all other things being considered. Rail- road Commissioners of la. v. I. C. R. R. Co., 20 I. C. C 181, 186. (cc) The reservation by Congress of the right to fix charges over bridges is exercised by a delegation of authority to the Commission. West End Improve- ment Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 247. (d) A bridge tariff on local business between Louisville, Ky., and New Al- bany, Ind., will not be held unreasonable where no evidence is introduced > > show its unreasonableness, and where it com- pares favorably with the rates at other Ohio River crossings. Railroad Commis- sion of Ind. V. K. & I. B. & R. R. Co., 14 I. C. C. 563, 564. BULK SHIPMENTS. See Forwarders, II. BULKHEADS. See Courts, §11 (r); Facilities and Privileges, §10 (w) ; Loss and Dam- age, §4 (i). BURDEN OF PROOF. See Advanced Rates, §3, §5 (2) (bb), §6 (3) (a); Blanket Rates, §16; Crimes, §25; Discrimination, §14; Evidence, I, §68 (a); Express Com- panies, §11 (5) (a). §11 (9) (a), §23 (a); Long and Short Hauls, §12 (1); Loss and Damage, §15; Pro- portional Rates, II (a); Routing and IVIisrouting, §8; Through Routes and Joint Rates, §11 (2) (c), §15, §16 (I); Undercharges, §5. BUSINESS SECRETS. I. DISCLOSURE FORBIDDEN. See Reasonableness of Rates, 111 (a); Tariffs, §14 (c). (a) A shipper of salt does not have to deliver his shipments to a boat line con- trolled by a competitor, and such boat 108 BUSINESS SECRETS, I (b)— CARS AND CAR SUPPLY, §1 (b) line, although it publishes rates on salt in cargo lots, cannot be considered a common carrier, but a private facility of the salt company by which it is owned. Colonial Salt Co. v. M. I. & I. Line, 23 I. C. C. 358, 366. (b) The tariff of a carrier provided that per-can shippers of milk in case they wished refrigeration should deliver their cans to competitors operating leased cars, who would charge certain prescribed rates. HELD, the new provi- sion of the Act clearly indicates an intant upon the part of Congress to secure to every shipper immunity from a disclosure of his business at the hands of a common carrier, and the rule referred to was un- lawful. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 321. (bb) A tariff is unlawful, under the 15th section of the Act, which compels a shipper to load his milk into a car leased by another shipper in such a way as to disclose the secrets of his business and which compels him to pay the transportation rate to such other shipper. Albree v. B. & M. R. R. Co., 22 L C. C. 303, 321. (c) Arbuckle Bros, operate their own property as the Jay Street terminal of defendants. Complainant is a compet- itor of Arbuckle Bros. To meet its complaint of unjust discrimination de- fendants offered to receive the sugar of complainant at the Jay Street terminal. HELD, to offer the complainant a re ceiving station on the dock of powerful competitors where its shipments would be handled and billed out by its com- petitors, thus exposing to them the names of complainants' customers, its markets and the course of its business, is a suggestion that overlooks the duty of impartial service by the defendants to all their shipping public, and violates the Act as amended, which makes it un- lawful for an interstate carrier to "dis close his 1 usiness transactions to com- petitors." Federal Sugar Refining Co. v. B. & O. R. R. Co., 2C L C. C. 200, :il. CARS AND CAR SUPPLY. I. CONTROL AND REGULATION. A. Jurisdiction of Commission. §1. Over car distribution. §2. Car regulations. §3. Fuel cars. §4. Private cars. §5. Intrastate cars. §6. To award damages. II. DUTY TO FURNISH CARS. §7. In general. §8. Size ordered by shipper. §9. Form of order. §10. Tank cars. §11. At transit point. III. ASSIGNMENT AND DISTRIBU- TION. A. Counting of Cars. §12. In general. §13. Private cars. §14. Foreign cars. §15. Railway fuel cars. §16. Pooling by shipper. §17. Tank cars. §18. Detention of cars. §19. When counted for loading. §20. Car famine. §21. Reward for prompt release. §21 1/^. Shippers on branch lines. B. Rating of Mines. §22. Coke-oven basis. §23. Commercial plus physical capacity. §24. Idle-hour system. §25. Mine capacity plus ship- ments. §26. Physical capacity less rail- way fuel. C. Removal of Discrimination. §27. Effect. IV. CONTRACTS FOR CAR SUPPLY. §28. In general. V. DUTY TO TRANSPORT CARS. §29. In general. §30. Interchange of cars. §31. Private cars, §32. Rates on private cars. VI. REMEDIES AND DAMAGES. §32/2- In general. §33. Action at law. §34. Defenses. §35. Res adjudicata. §36. Evidence. I. CONTROL AND REGULATION. A. Jurisdiction of Commission. §1. Over Car Distribution. (a) The Commission under section 15 of the Act as amended June 29, 1906, has authority to prohibit unjust discrimina- tion in the distribution of cars for a period of two years. I. C. C. v. 111. Cent. R. R., 215 U. S., 452, 475, 30 Sup. Ct. 155, 54 L. ed., 280. (b) The equipment of a railroad com- pany engaged in interstate commerce, in- cluded in which are its coal cars, is an Instrument of such commerce and such CARS AND CAR SUPPLY, §1 (c)— §4 (b) 109 coal cars are embraced within the gov- ernmental power of regulation which ex- tends, in time of car shortage, to compel a just and equal distribution and the pre- vention of an unjust and discriminatory one. I. C. C. V. I. C. R. R., 215 U. S., 452, 474, 30 Sup. Ct. 155. 54 L. ed. 280. (c) Under section 15 of the amended act of June 29, 1906, the Commission has jurisdiction to regulate the distribution of coal cars, to the end that various coal districts may receive their just propor- tion of available cars, and in this way to prevent the undue preference and un- lawful discrimination prohibited under sections 2 and 3. Rail and River Coal Co. V. B. & O. R. R. Co., 14 I. C. C. 86 91. (d) The Commission has jurisdiction Df complaints involving the practices and regulations of interstate carriers in re- spect to the distribution of coal cars. Section 15 of the Act is to be read in the widest possible sense; it brings within the jurisdiction of the Commission all the regulations and practices of carriers under which they offer their services to the shipping public, and conduct their transportation. Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86. (e) Where it appears with reasonable clearness that discrimination in the dis- tribution of coal cars is likely to result unless some system of rating and car distribution is put into effect, it is in- cumbent upon the Commission to require of the carrier the establishment of such a system. Traer v. C. B. & Q. R. R. Co., 14 I. C. C. 165, 169. (f) A railroad company is not re- quired to establish a system of mine ratings and car distribution, unless such course is necessary to avoid discrimina- tion among the different patrons of its line, and the Commission is not called upon to make an order for the establish- ment of such a system until it fairly ap- pears that without it discrimination will result. Traer v. C. B. & Q. R. R. Co., 14 I. C. C. 165, 168. §2. Cap Regulations. (a) It is doubtful, if the Commission would, in the first instance, prescribe a set of rules and regulations governing car distribution in a coal district. This Is peculiarly a matter for action in the first instance on the part of the Inter- ested carriers and operators. Col,9rg,dQ Coal Traffic Ass'n. v. D. & R. G. R. R. Co., 23 I. C. C. 458, 404. (aa) The Commission's jurisdiction over car-distribution rules is absolute. Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 I. C. C. 356, 359. (b) A basis of car distribution is a regulation affecting rates within the meaning of section 15. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 I. C. C. 356, 358. (c) Rules or regulations prescribing who shall load and unload cars of freight are rules or regulations affecting rates, and are therefore subject to the control of the Commission under the fifteenth section. Wholesale Fruit & Product As- sociation V. A. T. & S. F. Ry. Co., 14 I. C. C. 410, 421. §3. Fuel Cars. (a) The Act delegates to the Commis- sion authority to regulate the distribu- tion of coal fuel cars in times of car shortage as a means of prohibiting un- just preferences or undue discrimination. I. C. C. V. I. C. R. R., 215 U. S., 452, 474, 30 Sup. Ct, 155, 54 L. ed., 280. (b) The Commission has jurisdiction to compel a railroad to count against the shipper the company's fuel cars, in the daily distribution in times of car short- age, under section 3 of the Act prohib- iting preferences and discriminations, I C. C. T. I. C. R. R., 215 U. S., 452, 475, 30 Sup. Ct., 155, 54 L. ed., 280. (c) Fuel cars for the carrier's own use are embraced within the governmen- tal power of regulation. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 I. C. C. 356. 358. §4. Private Cars. See Infra, §31, §32; Common Carrier, §6. (a) The Commission has power to regulate the rates imposed by carriers upon the movement of private equipment, such as cars owned by theatrical com- panies. Chappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 59. (b) While the right to use private cars may doubtless be denied f^o , Rip- pers by appropriate legisla,;tion, ;iq -thfiial^ sence of a specific enactment tptl^aitoeifr feet their use is not ; in itse]f . unjlfty^^f #. VV^hetjhef; uind^p a givea.^jjetj.^fi.ijir^si^r stances their us^.reswitsjp ^n.iuij^wg^ 110 CARS AND CAR SUPPLY, §5 (a)— §7 (b) advantage to their owners, and in an un- lawful disadvantage to others, is a ques- tion which under existing legislation is clearly under the control of the Com- mission, and may be made the basis of such relief as the facts in any particular case may justify. Ruttle v. P. M. R. R. Co., 13 I. C. C. 179, 185. §5. Intrastate Cars. (a) Where a large part of the busi- ness of shippers is interstate, but is con- ducted in its entirety by shipper and car- rier alike as a unit of operation, with lit- tle or no regard to the boundaries of the state in which the traffic originates, the Commission has power to prescribe rules for car distribution even though its or- der in terms affects cars used wholly in intrastate shipments. Pennsylvania R. R. Co. V. I. C. C, 193 Fed. 81, 83. §6. To Award Damages. (a) Whether after the Interstate Commerce Commission has found a rule of car distribution to be discriminatory, it has jurisdiction to assess the damages sustained by the complaining party, or whether they are to be recovered by an action in some court, without any pre- liminary assessment by the Commission, quaere. Morrisdale Coal Co. v. Pennsyl- vania R. Co., 183 Fed. 929, 938. (b) Where a shipper seeks damages arising from an alleged improper and dis- criminatory system of car distribution ap- plying to a certain coal mining region, and affecting the interests of many ship- pers, he cannot institute an original suit for the same in a United States court un- der section 9 of the Act, but must first file complaint with the Interstate Com- merce Commission, even though at the time of beginning the suit the system complained of may have been replaced by another. Morrisdale Coal Co. v. Penn- sylvania R. Co., 176 Fed. 748, 761. II. DUTY TO FURNISH CARS. §7. In General. See Allowances, §14 (h); Bills of Lading, §5; Demurrage, §6; Refrig- eration, §3 (h); Routing and Mis- routing, §2 (a). (a) It is the plain duty of carriers to distribute cars equitably; and carriers should hire a sufficient number of men to facilitate the distribution. Colorado Coal Traffic Ass'n v. D. & R. G R. R. Co., 23 I. C. C. 458, 463. (aa) Out of a total of 969,965 box cars in the United States, 944,832 are 40 feet and under in length. Bruns- wick-Balke-Collender Co. v. A. T. & S. F. Ry. Co., 23 I. C. C. 395, 397. (b) Complainant attacked the New England or leased-car-system rate as applied to transportation of milk to Boston, Mass. Defendant carrier had in effect (1) a per can rate based on dis- tance under which the milk was carried in baggage and no icing furnished; (2) a carload rate of $125 per mile per year from one to 75 miles, with an addition of $112.50 per mile beyond 75 miles and up to 125 miles, and a further addition of $75 per mile for over 125 miles, the maximum load being 1,050 cans with an additional charge for those in. excess of that number; (3) carload rates for service in refrigerator cars upon its freight trains, the rate being 75 per cent of that for passenger service when in ordinary refrigeration cars, and G5 per cent in tank cars, with the right upon the part of the shipper to receive milk or cream at certain designated points. Under these rates there was no provision for the movement of milk by the can under ice furnished by defendant car- rier, but the tariff permitted any ship- per to transport cans on the leased cars by paying directly to the operator the rate of transportation and i^c per can in addition for icing facilities. The leased cars were used by operators who purchased the milk of the farmers in a given section and assembled it into carloads for shipment. On account of the small output of the average dairy, this assembling of the milk was neces- sary in order to secure the carload rate. As a single car would serve a given section, only one operator purchased in that section and gained a monopoly of the business, and the entire Boston milk supply was practically controlled by two or three large concerns. The leased cars could be handled more eco- nomically and the rate was lower than the per can rate. The service under the latter rate was unavailable on account of lack of icing facilities. The leased- car system was defended on the fol- lowing grounds: (1) Benefits derived from the caretaker provided by the operator. This caretaker came into daily contact with the farmers and received suggestions as to the improvement of the service. He saw that the milk was CARS AND CAR SUPPLY, §7 (bb) — (e) 111 properly marked, thereby preventing friction between the farmer and the contractor or operator. He rejected unfit milk, and saw that the milk was loaded in. such a way as ,to insure the most convenient removal of cans from the car. (2) Heavier loading obtained under its leased-car system. The cost of icing and operating of a car being the same whether it contained 100 or 1,000 cans, the handling of milk by the operators in full carloads made for econ- omy. (3) The terminal situation. The large operators had provided in Boston facilities for receiving and handling the milk. The cars were hauled directly to the plants of the operators, whereas if each dealer received his milk at the passenger station a wagon haul of sev- eral miles would be involved, increasing the risk of exposing the milk to im- proper temperature, (4) The disposi- tion of surplus milk. Since the con- sumption of milk at Boston varied from day to day, it was necessary to provide for the disposition of the surplus. This was done advantageously by maintaining a creamery along the way and intercept- ing large portions on its way to market at some country point where it was manufactured into butter or condensed milk. (5) The leased system had been in effect for some fifty years and the operators had expended large sums in extensive facilities. (6) The regula- tions adopted by the state of Massa- chusetts and the city of Boston "were such as would virtually prohibit the handling of milk in small quantities on account of the strict requirements as to cleanliness, temperature, delivery in sealed packages, etc. The tendency of the leased-car system was toward mo- nopoly, and under it there was probably no competition except in the quality of milk supplied. The evidence indicated that to destroy the system and to es- tablish an exclusive i>er can rate would increase the cost to the consumer some 20 per cent and would result in, poorer sanitary conditions. Under the system attacked the price paid the farmer for the milk had been distinctly higher than that paid to the farmer for supply- ing any other city. The price charged the consumer in Boston had been about the average of that charged in cities. In quality the Boston supply equaled or exceeded that of any great city. The evidence indicated that even if a per can system was established bo as to enable the farmer to ship directly to independent dealers in Boston, the mo- nopolistic tendency would not thereby be checked. HELD, that the shipper was entitled to a per can rate with icing facilities, but that the defendant should not be required to furnish cars with such facilities unless it was rea- sonably assured of shipments of at least 600 cans of milk; that the per can rate might be higher than the leased car rate, but must not be unreasonably so; and that the leased-car system was not unlawful in itself except in so far as the carrier failed to furnish a per can rate with icing facilities with the result that the shipper was compelled to pay transportation to the operator instead of to the carrier and to disclose the secrets of his business to the oper- ator by the shipment of his caijs in the leased cars. Albree v. B. & M. R. R. Co., 22 L C. C. 303, 327. (bb) It is the primary duty of a rail- road to furnish equipment that is usable, and in the event the car is unfit the ship- per should reject it and call for another. A shipper is not to be put to the alter- native of either not shipping at all or of recovering from the railroad for loss of the commodity in transit. It is not a compliance with the requirements of the law that a car shall be put at the ship- per's disposal; the car provided must be one that will convey the commodity safe- ly to its destination under ordinary cir- cumstances. Balfour, Guthrie & Co. v. O. W. R. R. & Nav. Co., 21 L C. C. 539, 540. (c) Car furnishing is part of the transportation. Arlington Heights Fruit Exchange v. S. P. Co., 20 L C. C. 106, 117. (cc) Equipment sufficient to meet ac- tual shipments is all the law requires of carrier. Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 1. C. C. 356, 361. (d) No difference to the shipper whether the car furnished him is for- eign, leased or used under mileage or per diem arrangement. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 34. (e) It is the duty of the carrier to accommodate the needs and necessities of shippers in regard to supplying cars; as a practical matter it is not possible for carriers to furnish all shippers with just such cars as they would like and in such numbers and at such days and hours 112 CARS AND CAR SUPPLY, §8 (a) — (e) as would best serve their interests. Am- erican Creosoting Works v. 111. Cent. R, R. Co., 15 I. C. C. 160, 164. §8. Size Ordered by Shipper. See Minimums, §3, §4; Tariffs, §3 (1) (b). (a) So long as rates are provided for double-deck cars, tariffs should pro- vide definitely that, where a double- deck car is ordered and two single-deck cars are furnished, charges will be as- sessed upon basis of double-deck cars ordered. Carstens Packing Co. v. S. P. Co., 23 I. C. C. 236, 237. (aa) Carriers should amend their tar- iffs so as to contain a rule providing that when unable to furnish a car of large di- mensions ordered by shipper, two smaller cars may be furnished and used on the basis of the minimum fixed for the car ordered. Lindsay Bros. v. L. S. & M. S. Ry. Co., 22 L C. C. 516, 518. (b) Complainant ordered one 50-ft. flat car for the transportation of a ship- ment of threshing machinery weighing 19,770 lbs., from Hopkins, Minn., to Pay- son, Utah. Defendant being unable to furnish a car of the size ordered, for- warded the shipment in two shorter flat cars. The delivering line collected total charges of $500, b^sed on the minimum weight of 20,000 lbs. for each car. Had a 50-ft. car been furnished, the charges would have been $250, based upon a rate of $1.25 per 100 lbs., and a minimum weight of 20,000 lbs. for the one car. It is stated that the originating carrier had but ten 50-ft. flat cars in an equipment of something over 100,000; also that Bome of the larger manufacturers of threshing machinery furnish their own cars and are able to avail themselves of the carload rate on the entire sbipment The originating carrier is a. party to tar- iffs providing a minimum of'2iQfb00 ]bs. on agricultural, machinery applicable to 50- ft. flat cat^V HFT.D. it is therefore un- d^^ thfe Wii<^ ^f furnishing cars of. suflfi- aWtf' siS(§ "ib ■ a'ccommodate the shipments d^ otb^'stiftab!^ equipment on the same b'dsi^ of ' charge. To' hold otherwise would result in gross discrimination against the ^naaUi shipper who isj unable tp.r furnish' l^Lss aWin cars,r which^.-undjer th©4aw, he is -njpt require^ to; do, in favor olrthjese larger shippers who have their qwPf. eijiUpment^^ ^ Minneaj)olis-.^bf ashing machwe,:^p^,-y-,:;^. v^.^j^gS|,^'. j^ye Co., (c) Complainant demanded reparation on a shipment of coiled elm hoops from Creston, Ohio, to Windsor Shades, Va. Shipment moved on June 18, 1909. June 12, a 34-foot car was ordered of the rail- road agent at Creston and, if furnished, the shipment, which weighed 20,100 lbs., would have moved subject to a minimum of 24,000 lbs. Shipper could not secure the car ordered, and on June 18th was compelled to use a 36-foot car to which was applicable a 30,000-lb. minimum, A 34-foot car was received at Creston, June 19th. Creston is a small local station and defendants contended that reasonable no- tice for this kind of a car would be a week or ten days. HELD, that under Rule 66 of Tariff Circular 17-A it is the duty of carriers to promptly furnish cars on order, which was not the fact in this case; that where carriers cannot prompt- ly furnish equipment of the capacity or- dered tariff should provide that if a car of a different capacity is furnished such car might be used upon the basis of the minimum fixed for the car which was ordered. Reparation awarded. Noble v. B. & O. R. R. Co., 20 I. C. C. 72. (d) On carloads of sheep from points in California to Tacoma, Wash., com- plainant ordered double-deck cars and was furnished single-deck cars. Defend- ant's tariff provided that on double- deck cars a charge of 170% of the rate on single-deck cars would be charged, and that 'if the company could not furnish the double-deck equipment the single-deck car rates would be charged. Defendant, at the time of the shipments in question, had no double-deck cars available and the evidence indicated that on account of curves, tunnels and grades on its line the use of double-deck cars was not practicable. Complainant also attacked the rates charged as unreasonable and offered in evidence comparative rates on shipments of sheep westbound into' Tacoma, and of cattle northbound into Tacoma. HELD, the provision in the tariff relating to single-deck charges was not unreasonable, and the evidence of comparative rates was not sufficient to establish the unreasonableness of defend- ants' rates. Carsten Packing Co. v. S. P. Co., 17 I. C. C. 6. (e) When a shipper orders a car of a certain capacity the Commission will not sanction the imposition of additional charges on the shipment, that could have been loaded into such car, when the car- CARS AND CAR SUPPLY, §8 (f) — (k) 113 ier for its own convenience furnishes a irger car. Kays & Carter Lumber Co. . M. & I. Ry. Co., 17 L C. C. 209, 211. (f) On shipments of lumber, com- lainant ordered two 33-foot cars. De- ?ndants furnished one 33i/^ and one 34- )ot car. The actual weight of each ship- lent exceeded the minimum of the mailer car ordered, but was less than le minimum for the larger car furnished, omplainant was assessed on the basis f the minimum for the larger car. Only ne of defendants had a published tariff ermitting it, when supplying a shipper nth a larger car than ordered, to assess tie charges on the basis of the minimum or the smaller car. HELD, a carload ate and a minimum weight for a car of lefinite dimensions when lawfully pub- ished in the tari^^s of a carrier constitute n open offer to the shipping public to love their merchandise on those terms; nd it would be wholly unsound in prin- iple to permit the carrier to impose ad- itional transportation charges on the hipper who orders a car of a capacity, Bngth or dimension specified in its tar- ffs, simply because it was not provided .'ith cars of the dimensions ordered. The bligation to carry the merchandise of hippers on the basis of the published ates and minimum weights, and to use i'hatever cars are available for that pur- »ose, ought to have been covered in the lublished tariffs of the defendants by >roper rule to that effect; which were inreasonable and unlawful in not con- aining such a provision at the time the shipments in nuestion were made. Rep- iration awarded on the basis of actual veight. Kaye & Carter Lumber Co. v. \l. & L Ry. Co., 16 I. C. C. 285, 287. (g) On shipments of cattle from South 3t. Paul to Hammond, Ind., complainants )rdered ten 36-ft. stock cars. Defendant carriers at South St. Paul, for their con- ''enience, furnished seven 33-ft. cars, two 44 ft. cars, and one 36-ft. car. The ship- nents were received by complainants* representative at Blue Island, 111., and :he cattle were there unloaded by him ind reloaded into the same cars for shipment from Hammond, Ind., to Phila- ielphia. Complainants made out bills of ladins^ at South St. Paul for the reship- ment of the cattle from Hammond to Philadelphia, mailed the same to their representative at Blue Island, who gave the billing instructions to a representa- tive of the Indiana Harbor Belt Ry. at that point, who in turn ^ave them to the agent of the Indiana Harbor Belt Ry. at Hammond, who rebilled the shipments to Philadelphia. Complainants' representa- tive at Blue Island did not inform the Pennsylvania Company receiving the shipments at Hammond that they re- quired ten cars of certain dimensions, and that road assessed charges on the basis of 260,000 lbs., the minimum for thirteen cars, instead of 200,000 lbs., the minimum for ten cars. HELD, complainants hav- ing failed to notify the Pennsylvania Company the shipment required ten cars were not entitled to reparation. Slim- mer & Thomas Co. v. Pennsylvania Co., 16 L C. C. 531, 533. (h) Where neither the bill of lading nor the waybill bears any notation indi- cating that a car of a particular size was ordered by the shipper, and neither the complainant nor any other witness states definitely that the order given for the shipment required the defendant car- rier to furnish a car of small capacity, and where no other evidence that such requirement was made is offered, repara- tion will not be granted for charges as- sessed on the minimum of a larger car than the one complainant alleges he or- dered. Wheeler Lumber, Bridge & Sup- ply Co. V. S. P. Co., 16 I. C. C. 547, 548. (i) When the carrier is unable, to furnish a car of the capacity ordered, charges should be assessed in accord- ance with the carload minimum appli- cable to the size of the car ordered. Reparation awarded, because the rates were charged on larger cars than were ordered. Bentley v. C. & N. W. Ry. Co., Unrep. Op. 181. (j) Tariffs of defendants should have provided that when cars of dimensions ordered by the shipper could not be furnished and cars of larger dimensions were furnished for convenience of car- riers, such cars might be used upon the basis of the minimum fixed for the cars which were ordered. Reparation awarded. Lininger Implement Co. v. C. & N. W. Ry. Co., Unrep. Op. 414. (k) Where the shipper ordered one large car and the carrier furnished two smaller cars, the charges should have been assessed on the basis of the actual weight of the shipment. Reparation awarded. Pate y. C. & N. W. Ry. Co.j, Unrep. Op. 417, 'i 114 CARS AND CAR SUPPLY, §8 (1)— §12 (a) (1) A larger car was furnished than the one ordered and the rates exacted were based on the minimum of the larger car. HELD, the rates should have been based on the actual weight of the ship- ment, which was more than the minimum of the car ordered, but less than that of the car furnished. Reparation awarded, Torrey Cedar Co. v. C. & N. W. Ry. Co., Unrep. Op. 420. (m) Two cars were used for the shipment of a flagpole when the car- rier had available equipment for load- ing on one. Reparation awarded against the initial line without contribution from connections. Calvi.v. C. M. & St. P. Ry. Co., Unrep. Op. 461. (n) Defendant's tariffs should pro- vide that when a car of a particular size is ordered and for the convenience of the carrier two smaller cars are fur- nished, the two cars so furnished shall be used upon the basis of the minimum weight fixed for the car ordered. Repa- ration awarded. Bradford-Kennedy Co. V. N. P. Ry. Co., Unrep. Op. 455. (o) A closed car was ordered for the shipment of cedar fence posts. An open car was furnished which carried a higher minimum. Subsequently the tariff was amended so that the open car could take the same rate as the closed. Reparation awarded. Northern Mercantile Co., Ltd., v. N. P. Ry. Co., Unrep. Op. 581. §9. Form of Order. See Infra, §36; Evidence, §39. (a) When shippers order cars for par- ticular movements, in which dimensions are important because of the graded minimum weights usually applicable to cars of different lengths, the order should be in writing, or if not actually given in writing, should be promptly and definitely confirmed in writing. Pope Manufactur- ing Co. V. B. & O. R. R. Co.. 17 I. C. C. 400, 403. (b) A request by a shipper for a car in which to load a particular shipment should specify the size of car desired. Kaye & Carter Lumber Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 159. §10. Tank Cars. (a) Whatever the facts may have been which have led up to the present private ownership of tank cars, the fact remains that it is the duty of the car- riers to furnish such cars, and sound public policy demands that this duty should be performed in order that all shippers may be served equally well. In the Matter of Demurrage Charges on Privately Owned Tank Cars, 13 L C. C. 378, 381. (b) Carriers do not undertake to fur- nish tank cars for shippers; when such equipment is required, it is obtained upon an order or at the special request of the shipper. American Milling Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 384. §11. At Transit Point. (a) The refusal to furnish cars for the outbound movement of grain milled in transit amounts to a failure to fur- nish transportation in violation of sec- tion 1. Brook-Rauch Mill & Elevator Co. V. St. L. L M. & S. Ry. Co., 21 L C. C. 651, 654. (b) Complainant shipped a carload of corn from Omaha, Neb., to Little Rock, Ark., over the St. L. I. M. & S. R. R., to be there milled and reshipped to Fordyce, Ark., over the Cotton Belt R. R. The shipment moved under a tariff naming a through rate from Omaha to Fordyce via Argenta, Ark, to which the inbound and outbound carriers were parties. In connection with a later tariff granting transit privileges at Little Rock, a point not on the Cotton Belt's line, its junc- tion with the St. L. I. M. & S. R. R. being at Argenta. To this later tariff the Cot- ton Belt was not a party. Both carriers re- fused to furnish transportation equip- ment for the outbound movement from Little Rock, each claiming it was the duty of the other to do so. HELD, that the Cotton Belt's obligation under the tariff to which it was a party does not accrue until delivery to its own rails, and the duty to furnish equipment for outbound movements from complainant's mill rests upon the inbound carrier, the St. L. I. M. & S. R. R. Brook-Rauch Mill & Elevator Co. v. St. L., I. M. & S. Ry. Co., 21 L C C. 651, 656. III. ASSIGNMENT AND DISTRIBU- TION. A. Counting of Cars. §12. In General. (a) Where the shipper has shown in a mandamus suit to compel equitable car distribution, that the carrier has not supplied the facilities demanded, the bur- CARS AND CAR SUPPLY, §12 (aa) — (f) 115 den is upon the carrier, in order to ex- onerate itself from the charge of undue preference, to show that it is prorating its cars fairly and equally among all th^ operators who are similarly situated and engaged in transporting freight over its lines. (McDowell, J., dissenting.) U. S. V. B. & O. R. R. Co.. 165 Fed. 113, 125. (aa) The double ordering of cars and multiple ordering of coal militate against the mpst equitable distribution of coal cars. Colorado Coal Traffic Ass'n V. D. & R. G. R. R. Co., 23 I. C. C. 458, 464. (b) The L. & N. R. R. delivers empty cars on a branch line to St. Charles mines in the Black Mountain district of Virginia and returns loaded cars to its own line without charge for service either way, and in addition pays the Va. & S. W. R. R. for trackage rights by means of which it reaches St. Charles. This service it formerly performed for mines situated on the line of the Inter- state R. R. Co., which serves competing mines in the same general district, where the conditions of transportation are sub- stantially similar. HELD, its failure to continue such service was undue dis- crimination. Stonega Coke & Coal Co. V. L. & N. R. R. Co., 23 I. C. C. 17, 26. (bb) No discrimination or preference in the matter of furnishing cars can be permitted in. favor of Illinois coal buy- ers as against Missouri buyers although one may be local to an Illinois carrier and the other may be on the line of a connecting carrier. Missouri & Illinois Coal Co. V. I. C. R. R. Co., 22 I. C. C. 39, 48. (c) A shipper is entitled not only to receive a fair proportion and use of a carrier's tequipment, but may protest against a competitor being given a sup- ply of cars in excess of his just propor- tion. Bulah Coal Co. v. P. R. R. Co., 20 I. C. C. 52, 54. (d) Complainant asked reparation for damages sustained through discrimina- tion in distributing coal car equipment to it. HELD, that under the law a ship- per has the right not only to receive its fair and full proportion and use of a carrier's equipment and facilities, but may protest against the giving to a' com- petitor of a supply of cars in excess of its fair and just proportion, because the mine that has a larger and more con- stant supply of cars may not only be operated at less cost, but can attract miners from other mines because of a more constant opportunity to earn wages. Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 I. C. C. 356; Jacoby & Co. v. P. R. R. Co.^, 19 1. C. C. 392 ; land other cases therein referred to, reaffirmed. Bulah Coal Co. V. Pa. R. R. Co., 20 I. C. C. 52, 54. (e) The defendant carrier contended that so long as the complainant received all the cars it was entitled to it had no right to complain that some other coal shipper, as the result of a high mine rating or otherwise, secured an excess- ive proportion of the available cars, if this preference was not at the expense of the complainant. HELD, that the Commission must reject that view. The Act as amended not only gives a shipper a right to an equal or a justly ratable use of the facilities of an interstate car- rier, but gives him the assurance also that no one else shall fare ratably bet- ter than he does at the hands of the carrier. It may be true that a court would not allow the complainant dam- ages for losses due to the defendant's failure to furnish it cars that it was not entitled to receive, but the Commission may surely require an interstate carrier to cease and desist from giving a ship- per's competitor more cars than he is entitled to receive. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 I. C. C. 356, 369. (f) The rules for coal car distribu- tion by the defendant having been found unreasonable, the complainant requested the Commission to make such a ruling as will enable it to obtain redress for the past discrimination, because under the condemned ruling the mines in whose favor the discrimination was had en- larged their commercial capacity. HELD, that the Commission could not grant to complainant a temporary preference to even up for the past. Exact justice is ordinarily not obtainable. It is difficult no less for the Commission than far a court to deal with such a situation with mathematical accuracy. The most that either may hope to accomplish in such a state of facts is to do substantial jus- tice, and this is done as far as possible when the defendant is required to adjust its rules on a proper basis for the fu- ture, and the complainants are given an opportunity to have their injuries re- dressed in the form of damages. Hills- dale Coal & Coke Co. v. P. R. R, Co., 19 I. C. C. 356, 366. 116 CARS AND CAR SUPPLY, §12 (g)— §13 (h) (g) While the mine capacity of a given shipper of coal may be greater than his allotment of cars, yet where this is also the case as to other shippers sim- ilarly situated in the same coal field it , is the duty of the carrier when the car supply is inadequate to fairly distribute the available number among all oper- ators. Powhatan Coal & Coke Co. v. N. & W. Ry. Co., 13 I. C. C. G9, 81. (h) It is the duty of railroad com- panies to provide suitable vehicles of transportation and to offer their use im- partially to all shippers, and unjust dis- crimination through car distribution is prohibited by the Act. Powhatan Coal & Coke Co. V. N. & W. Ry. Co., 13 I. C. C. 69, 81. §13. Private Cars. See Supra, §4; Infra, §31; Demur- rage, §10; Tariffs, §7 (jj); Trans- portation, §2 (h). (a) In times of coal car shortage it is the duty of the carrier making car dis- tribution, to charge against the percent- age of a particular shipper the individual or privately owned cars of said shipper, and it is an unjust discrimination under the Act as amended June 29, 1906, for a carrier to assign to a shipper his indi- vidual cars, and in addition his full pro rata of system cars. (McDowell, J., dis- senting.) U. S. V. B. & O. R. Co., 165 Fed. 113, 126. (b) Under the Act a carrier engaged in interstate commerce, in determining the distributive share of cars due to a particular shipper, must count against the shipper the private and foreign fuel cars supplied to him, although such cars are used only in intrastate commerce. Majestic -Coal & Coke Co. v. I. C R. R. Co., 162 Fed. 810, 811. (c) It is discrimination to fail to count private cars and assigned cars against distributive share of mine receiv- ing them. Jacoby & Co. v. P. R. R. Co., 19 I. C. C. 392. (d) Although the coal mine owning private cars to which company or foreign railway fuel cars are consigned is en- titled to receive them, even though in excess of its ratable proportion of all available coal car equipment, nevertheless the defendant will be required in the future to count all such cars against the distributive share of the mine so receiv- ing them. Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 I. C. C. 356, 365. (e) The practice of a railroad in not charging private individual cars and foreign railway fuel cars against the per- centage of the coal operators receiving them is unlawful, and such operators are not entitled in the general dietribution of available cars to receive their respective proportions of the system cars in addition to private and foreign railway fuel cars. Rail and River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 91. (f) While a carrier during percentage periods may not assign private cars to operators other than their owners, and may not assign foreign railway fuel cars to any mines except those to which they have been manifested by the foreign line, it must nevertheless count all such cars against the distributive s^hare of the respective mines to which the private cars belong, or the foreign railway fuel cars have been consigned, and in case the private cars or foreign railway fuel cars so delivered to a mine do not fill out its distributive share of available cars, enough system cars are to be added to make up its share according to its rating. Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 92. (g) The mere ownership of a private car, or the possession of a foreign rail- way fuel car, gives to the owner or pos- sessor no superior right to use the fa- cilities of the carrier in transporting it, or to have it attached to a -locomotive in preference to a system car loaded by an- other shipper, or to have it occupy a car- rier's siding, or other tracks as against a system car. Rail and River Coal Co. V. B. & O. R. R. Co., 14 I. C. C. 86, 92. (h) Complainants, dealers in hay at various points in the "Thumb" district of Michigan between Saginaw Bay and Lake St. Clair, attacked the practice of the P. M. R. R. in failing to furnish a sufficient supply of empty cars for trans- porting hay from those points. Com- petitors of complainant located at those points owned private cars, which we-re old and worn out, unfitted for interstate movements, and which, they used to ship hay over the short distances to Port Huron, Toledo and Saginaw, at which points the hay was transferred to cars of defendant and connecting carriers, to be carried to destination. These private cars were thereupon immediately re- turned for the use of their owners. De- fendants supplied an utterly inadequate number of cars to complainants at the original shipping points. As a result CARS AND CAR SUPPLY, §14 (a)— §15 (c) 117 complainants' competitors owning private cars were able to move their hay promptly, and by being thus enabled to pay the farmers promptly were able to buy hay at lower prices than complain- ants. Defendants made a practice of supplying cars at the junction points, Port Huron, Saginaw and Toledo, instead of sending same, as it might have done, to the shipping points where complain- ants were located. HELD, such practice was unduly discriminatory and defend- ant should make an equitable arrange- ment for the supplying of empty cars. Ruttle V. P. M. R. R. Co., 13 L C. C. 179, 185. §14. Foreign Cars. (a) Where defendant carrier fur- nished a shipper his full quota of avail- able cars, the latter cannot complain of unjust discrimination by reason of the fact that the cars furnished were se- cured from other carriers, while those supplied to competitors belonged to the defendant itself. Peale, Peacock & Kerr V. C. R. R. Co. of N. J., 18 I. C. C. 25, 34. (b) All cars tendered by the Union Pacific R. R. for the movement of grain must be counted as cars of the Union Pacific Company. Nebraska-Iowa Grain Co. V. U. P. R. R. Co., 15 I. C. C. 90, 96. §15. Railway Fuel Cars. (a) A carrier in times of coal car shortage in making car distribution must charge against the percentage of a par- ticular shipper its fuel cars, and the for- eign fuel cars assigned to such shipper, and a failure so to do constitutes undue discrimination under the Act as amended June 29, 1906. (McDowell, J., dissent- ing.) U. S. V. B. & O. R R. Co., 165 Fed. 113, 126. (aa) Private coal cars, belonging to shippers and used by carriers in the transportation of commodities, and the fuel cars of foreign railoads must be treated as a part of the total equipment of the carriers in determining the per- centage of cars due each shipper in the matter of car distribution. Fuel cars of the carriers, used only by themselves in transporting coal for their own use, are not, however, to be treated as a part of their available car supply for purposes of distribution to shippers. Such fuel cars are, however, to be taken irto account in determining the produc- ing capacity of a particular coal mine and the coal sold to a carrier by a mine and shipped to it in the carriers' fuel cars is not to be counted in arriving at the mine's producing capacity, for the purpose of determining the percentage of cars to which it is entitled. The order of the Interstate Commerce Com- mission, in 13 I. C. C. 451, is modified in so far as it counted the fuel cars of carriers in arriving at the total avail- able car supply. C. & A. R. R. Co. v. I. C. C, 173 Fed. 930, 933, reversed, I. C. C. V. 111. Cent. R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. ed. 280. (b) An arbitrary allowance of system cars to an operator for another reason than encouraging development is unlaw- ful discrimination unless justified by special conditions. Rail & River Coal Co. V. B. & O. R. R. Co., 14 L C. C. 86, 93. (bbj On Jan. 1, 1906, the defendant divided all coal cars into two classes, which it designated as "assigned" and "unassigned" cars. In the former class were its own fuel cars, foreign railway fuel cars and individual or private cars loaded by their owners or assigned by their owners to particular mines. The rule then made effective and still in force provides that the capacity in tons of any "assigned" cars shall be deducted from the rated capacity in tons of the partic- ular mine receiving such cars, and that the remainder is to be regarded as a rated capacity of the mine in the distri- bution of all "unassigned" or system cars. HELD, that a mine owning individual cars would be able to ship out more coal than its competitor, while under the rule approved by the Commission (which treats all cars, whether individual cars or owned by the carrier or assigned by other carriers for fuel, as available car equipment as a whole, distributable pro rata to shippers desiring their use), no shipper is discriminated against; and, therefore, that the rule of the defendant is unlawful and discriminatory. Hills- dale Coal & Coke Co. v. P. R. R. Co., 19 I. C. C. 356, 364. (c) Complainant, operator of coal mines on the lines of the defendants in Illinois, attacked defendants' system of car distribution. Under this system each mine was entitled to such percentage of cars as its tonnage rating t)ore to the total number of coal cars available for distri- bution for commercial purposes. Defend- ants' fuel cars, foreign railway fuel cars and private cars were not charged 118 CARS AND CAR SUPPLY, §16 (a)— §18 (a) against the distributive shares of the mines to which they were assigned. After the assignment of such cars each mine receiving them was given the same percentage of the remaining cars avail- able for distribution as if it Lad received no cars at all. This practice permitted mines having fuel contracts with de- fendants to ship a greater portion of their daily output than mines having the same tonnage rating, or not having fuel contracts with defendants or the use of private or foreign railway fuel cars. One of the defendants had 360 hopper-bot- tomed gondola cars, which were used solely for its own fuel and which, be- cause no shipper on its line had trestles from which to unload them, were im- practicable for commercial use. When a mine having a fuel contract with de- fendant was furnished cars under it with- out having its distributive share of cars for commercial shipments reduced there- by, such mine was given an advantage over its competitor having no fuel con- tract, because it was enabled to work its mine more regularly, to keep its prop- erty in a more efficient condition, to re- tain its employes and thus to operate more economically and to sell its output more advantageously in the commercial market. HELD, such system of dis- tributing cars was unjustly discrimi- natory. The defendant had a right to con- fine its hopper-bottomed carj to the haul- ing of its fuel supply, but such cars, with all others, must be used by the de- fendants upon their own lines for trans- portation of their own fuel supply and should be counted against the distribu- tive share of the mines to which given, except in cases where defendant owned or purchased the entire output of a mine for its fuel supply. Fuel and foreign railway cars must be counted against a mine in determining its distributive share. Traer v. C. & A. R. R. Co., 13 L C. C. 451, 456-459. Sustained in L C. C. V. 111. Cent. R. R. Co., 215 U. S. 452, 477, 30 Sup. Ct. 155, 54 L. ed. 280, reversing 173 Fed. 930, enjoining the Commission's order. §16. Pooling by Shipper. (a) Where a coal company owns and operates several openings, and is en- titled in the daily distribution to a cer- tain number of cars for each mine, it will not be prohibited from grouping or pooling all these cars, or any portion of them, at one mine, instead of using them at each mine in accordance with their respective percentages, in the absence of definite evidence to show that such prac- tice results in fact in undue and unlawful discrimination. Rail and River Coal Co. V. B. & O. R. R. Co., 14 L C. C. 86, 97. §17. Tank Cars. See Supra, §10. (a) W^here a connecting carrier re- ceives carloads of oil consisting of tank cars and carloads made up of barrel packages from the initial carrier, and merely joins with the initial carrier in a joint rate in itself reasonable, it is not liable for the alleged discriminatory acts of the initial carrier in charging for the weight of the barrel package used in shipments made by one class of shippers while at the same time making no charge for the weight of the tank cars against a competing class of shippers using such method of shipment. Penn. Refining Co. V. W. N. Y. & P. R. R. Co., 208 U. S. 208, 222, 28 Sup Ct. 268, 52 L. ed. 456. (b) Circumstances existed which pre- vented the economical use by plaintiffs of tank cars for the hauling of oil and they, therefore, made no demand of de- fendant carriers for the use of such cars. Their competitors used the tank cars. The defendants did not refuse to furnish them to plaintiffs. Plaintiffs shipped oil in barrels and defendants made a charge, which was not unreasonable, for the weight of the barrel package. They made no such charge for the weight of the tank cars. HELD, since plaintiffs made no demand for the tank cars, there was no unjust discrimination against them in favor of their competitors. (Moody and Harlan, JJ., dissenting.) Penn Refining Co. v. W. N. Y. & P. R. R. Co., 208 U. S. 208, 221, 28 Sup. Ct. 268, 52 L. ed. 456. §18. Detention of Cars. (a) Under a complaint charging shortage of coal cars, it appeared that during the period complained of there were at the mine of the complainant from day to day from one to twenty-five unbilled cars; that complainant handled lump coal and small coal; that it found a ready market for the lump coal, but not for the small coal, and was obliged to keep the latter on hand for a longer time; and that unbilled cars were used for the storage of small coal. HELD, complainant failed to make out a case of shortage of cars, since it had no right to require defendant to furnish cars for CARS AND CAR SUPPLY, §19 (a)— §21 (a) 119 lie storage of its small coal, and but for hat purpose defendant was supplying n abundance of cars. Traer v. C., B. b Q. R. R. Co., 14 I. C. C. 165, 168. 19. When Counted for Loading. (a) A rule that a car placed too late or loading will not be counted as avail- ble for loading until the following day, 3 not unlawful. Hillsdale Coal & Coke ^o. V. P. R. R. Co., 19 I. C. C. 356, 367. 20. Car Famine. (a) Shortage of cars does not mean iminution in number, but volume of raffic exceeds capacity of equipment, tail & River Coal Co. v. B. & O. R. R. :o., 14 I. C. C. 86, 92. (b) It may well happen that if a car- ier can supply during the major part if the year all the cars required by the oal mines located on its line, the most atisfactory basis for distribution during hort and infrequent periods of car short- ,ge would be furnished by the actual re- ults of operation during the time of full upply. Traer v. C. B. & Q. R. R. Co., 4 I. C. C. 165, 169. (c) Complainant, shipper of hay from Lfton, Okla., to St. Louis and other Mis- ouri points and to Arkansas points, al- eged that defendant unduly discrimi- lated against them in failing to furnish L supply of cars for hay during October, 906, to April, 1907, while at the same ime supplying cars for shippers of corn ■t Afton and for hay to shippers at •ther nearby points. The evidence m- [icated that defendant did supply a arger proportion to certain other ship- pers than to complainants, but did not how the destination of the shipments so aade. At St. Louis during the period in [uestion there was greater congestion of lay cars on account of the unwillingness •f connecting carriers to exchange cars vith defendant there, so as to permit he carrying of the hay to destinations lastward. This difficulty did not arise v'ith respect to grain, since the same ould be immediately unloaded into ele- ators at St. Louis for storage and sale, rhroughout the country there was a gen- iral car shortage during the period in [uestion. Defendant's traffic in the vi- inity of Afton was suddenly increased luring the period in question by the de- velopment of oil fields, which fact re- ulted in overcrowding the railroad yards -t Afton. HELD, the evidence submitted lid not show undue discrimination in dis- tribution of the car supply. Cox Bros. V. St. L. & S. F. R. R. Co., 14 I. C. C. 464, 466. (d) Complainant charged unjust dis- crimination in defendant's failure to fur- nish sufficient cars for carrying ice from Tobico, Mich., to Sandusky, O., between Sept. 15, 1906, and Dec. 31, 1906. For the portion of the year 1906 preceding September 15, complainant was abun- dantly supplied with cars. After this date there was a general car famine through- out the country. Complainant was ap- parently supplied as liberally as its com- petitors, located at Tawas, Mich., nearby, and at the end of the famine had about the same amount of unshipped ice on hand as competitors. Prior to Septem- ber 15, defendant had made sufficient ef- forts to keep its road supplied with cars and used all reasonable effort after that date to secure its cars from connections, but was unable to do so. During the fam- ine period it was not able to supply cars for its other traffic. HELD, no unjust dis- crimination was shown. Wagner, Zagel- meyer & Co. v. D. & M. Co., 13 I. C. C. 160, 164. (e) Complainant on an average shipped 10 per cent of all the grain shipped from Wood River, Neb. During the year 1906, prior to the months of November and December, he shipped about 5 per cent. In those months there was a shortage of cars. Complainant was furnished seven cars and his com- petitors the balance out of the total available supply of eighty-nine cars. Complainant had no elevator facilities, but loaded the cars by wagons of grain hauled from his warehouses, located from 80 to 200 feet from defendant's tracks. Defendant's agent stated that he dis- tributed cars as impartially as possible with a view of securing the promptest possible loading. HELD, no undue dis- crimination was shown. MacMurray v. U. P. R. R. Co., 13 I. C. C. 531, 533. §21. Reward for Prompt Release. (a) Defendant carrier, to encourage a prompt discharge and return of coal cars, put in force a rule, by which all coal shippers who during the month av- eraged not more than five days' deten- tion of the cars assigned to them were granted a premium of 50 per cent ad- ditional to their car supply for the next month. HELD, such rule constituted an unjust discrimination in the matter of car distribution under the Act as 120 CARS AND CAR SUPPLY, §211/2 (a)— §23 (c) amended June 29, 1906, the proper method being to assess demurrage charges for delay in unloading. (Mc- Dowell, J., dissenting.) U. S. v. B. & O. R. R. Co., 165 Fed. 113, 128. §21!/2. Shippers on Branch Lines. See Advanced Rates, §12; Branch Lines; Evidence, §37. (a) Under section 1 of the Act, coal shippers located on branch or lateral lines are entitled to the same kind of treatment as is accorded to those whose mines are located on the main line of the carrier, and in the matter of car distri- bution the allotment should be made to such branch o-r lateral lines on the same basis as to shippers on the main lines. (McDowell, J., dissenting.) U. S. v. B. & O. R. R. Co., 165 Fed. 113, 131. in. ASSIGNMENT AND DISTRIBU- TION. B. Rating of Mines. §22. Coke-oven Basis. (a) Complainant, coal operator in the Pocahontas Flat Top coal district in West Virginia, attacked the "coke oven basis" method of car distribution ap- plied by defendant and asked for the in- stitution of the "capacity basis." In the early days in this district the land own- ers were desirous of having the coal screened and the slack manufactured into coke, under the belief that they would thereby increase the products of the district and enhance the value of their holdings. It was, therefore, ar- ranged with defendant that the operators should construct a certain minimum num- ber of coke ovens on their holdings, and that the available supply of cars should be distributed according to the propor- tion which the number of ovens erected by each operator bore to the entire number of ovens in the field. In the course of time the number of ovens erected far exceeded the number actu- ally needed, and new ovens were built at an expense of some $500 each for the sole purpose of increasing the propor- tion of cars to the operator building same. After the field developed, certain portions thereof had no practical use for coke ovens, and were assigned cars on the basis of imaginary use for coke ovens, with the idea of giving said por- tions a supply of cars according to the capacity of their mines. Under the sys- tem attacked some of the operators were getting more cars than they needed, to move their coal, and others were getting less. During a certain period, when t) e defendant was able to supply all the cars needed by anyone, operators, who under the basis attacked were entitled to a smaller number of cars, actually made larger shipments of coal than operators entitled to a larger number. HELD, the coke oven basis should be discon- tinued and defendant should arrange for car distribution on a basis which would not result in unlawful discrimination be- tween the various operators in the field. Powhatan Coal & Coke Co. v. N. & W. Ry. Co., 13 I. C. C. 69, 83-80. §23. Commercial Plus Physical Capacity. (a) A mine rating system of car dis- tribution which combines commercial with physical capacity is not unlawful. Hillsdale Coal & Coke Co. v. P. R. R. Cj., 19 I. C. C. 356, 360; Jacoby & Co. v. P. R. R. Co., 19 I. C. C. 392, 394. (b) At this time and upon the present state of the Commission's information and experience it cannot accept the conten- tion that physical capacity alone is the fair and sound basis for rating mines for car distribution. Speaking in precise terms, it is ot no real concern to a car- rier how large a particular mine may be, and what are its possibilities in the way of daily output, except that those fac- tors may afford some measure of what its actual shipments will be. The utmost obligation that the law lays upon the car- rier is to equip itself with sufficient cars, not to meet the hopes and expecta- tions of the owner of a mine as expressed in its physical development, but to meet his actual shipment. A mine rating that is adjusted to the expectation of the operator, and altogether ignores his ac- tual requirements, might . isily result in a period of car shortage in giving him cars for every ton of coal that he can actually dispose of, while an adjoining mine with a small development, but a larger demand for its output, would get but a fraction of the equipment that it needs to meet its actual contracts. Hills- dale Coal & Coke Co. v. P. R. R. Co., 19 I. C. C. 356, 361. (c) In apportioning its coal car equip- ment the defendant adopts the following plan: to the physical capacity of the mine it adds its commercial capacity for one year only and divides the sum by two. The commercial capacity, however, is not based upon shipments made from a mine during a substantial period of CARS AND CAR SUPPLY, §23 (d)— §24 (b) 121 free car supply, but upon the entire vol- ume of shipments made from the mines throughout the preceding twelve months. The ratings are revised quarterly on Feb- ruary 1, May 1, August 1 and Novem- ber 1, The rating of any particular operation will also be revised by the de- fendant upon request, regardless of the quarterly tests; thus the commercial ca- pacity of each mine is brought up to iate at each quarterly rating period by taking into consideration its new ton- nage for three months and adding to it the tonnage of the preceding nine months previously used in the preceding rating. In this manner the defendant endeavors to follow up as closely as pos- sible the fluctuations in the market, la- bor conditions and car supplies. By [combining the commercial capacity of a mine thus ascertained and constantly brought up to date with its physical ca- pacity the rating of the mine and the iistribution of coal car equipment is ietermined. HELD, if this system of ^ating is equitably applied to all mines served by the defendant, the Commission s unable so far as its investigations to :he present time have informed it on the luestion clearly to see upon what grounds it may be said to result in an unequal, unfair or discriminatory dis- Tibution of equipment. Hillsdale Coal S: Coke Co. V. P. R. R. Co., 19 L C. C. 556, 360. (d) Defendant established a percent- ige basis of car distribution resting on he physical and commercial capacity of he mine. The physical capacity was ietermined by the thickness of the coal ;eam, the number of rooms or working places, the capacity of the underground ram-tracks, and the facilities for getting he coal out of the mine into the tipple, ind from the tipple into cars. A fixed jer diem value was assigned to a man's abor, taking into consideration the char- icter of the seam; and the number of places in which a man could work was :aken into account, regardless of the lumber of men actually employed. The ictual requirements of the mine for cars vere tested by shipments made by the nine, which factor was arrived at by aking the volume of shipments made 3y the mine during a period of free car jupply, usually from April 1 to August 1, n each of two preceding years. In fig iring the actual shipments, all shipments vere included except shipments of fuel ioal to defendant carrier. The physical capacity, the commercial capacity for the first year, and the commercial capacity for the second year were added together and divided by three. The result ob- tained was the capacity basis for de- termining the percentage a particular mine was entitled to. HELD, this system was not shown to be unreasonable. Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 95. §24. Idle-hour System. (a) In what is known as the "idle- hour" system of rating coal mines, the number of days and hours a mine has been in actual operation is used in es- timating its commercial capacity, instead of using the number of calendar days. Colorado Coal Traffic Ass'n. v. D. & R. G. R. R. Co., 23 I. C. C. 458, 462. (b) Complainant alleged that defend- ant's method of distributing cars for the transportation of coal from mines in Huerfano and Las Animas Counties, Colorado, to interstate points was unlaw- ful, and asked for the establishment of the idle-hour system. The testimony showed that no definite plan which might have served as guide and authority alike for shippers and operators had been in ex- istence in this coal district. It appeared that when the operator was particularly anxious for cars he would employ what is known as a "car rustler." The "car rustler" is a ubiquitous individual who, by means of good fellowship, free cigars and lunch money, prevails upon the car- riers' employes to promptly move equip- ment for the rustler's employer. In the case of congestion the rustler helps the engine crew distribute the cars. It ap- peared that the chief dispatcher and con- ductor of each particular train is sup- posed to know the necessities of each mine and pro rate the cars accordingly. The record fairly established that some unjust discrimination had been practiced in the past. HELD, that a "plan" which rests in the minds of two men, dispatcher and conductor, cannot be a plan which can possibly satisfy many operators in rivalry with one another, no matter how conscientious and faithful those two men may be. It is the duty of the carrier to hire sufficient men to facilitate the dis- tribution of cars, and not the operator. It is imperative that rules and regula- tions be formulated and published by the carriers at the earliest practicable date after proper conference with the operators, and sixty days is deemed a reasonable time in which to do this. If after such rules and regulations have 122 CARS AND CAR SUPPLY, §25 (a)— §27 (a) been published and given a fair trial, they do not meet the situation and the carriers are unwilling to meet the views of the operators, the matter may be brought to the attention of the Com- mission. Colorado Coal Traffic Ass'n v. D. & R. G. R. R. Co., 23 I. C. C. 458, 463, 464. §25. Mine Capacity Plus Sliipments. (a) In determining the number of cars to which various competing coal companies upon its line were entitled, defendant based the percentage on the capacity of the mine and on previous shipments, the capacity being allowed to count as 1, and the shipments as 2, in ascertaining the percentages. HELD, such system was improper and unfair to the shipper opening up new mines and that percentages should be based solely on physical capacity of the mine. (McDowell, J., dissenting.) U. S. v. B. & O. R. R. Co., 165 Fed. 113, 130. (b) A carrier may make arbitrary al- lotment of cars for the purpose of en- abling the owner of a mine reasonably to develop it, so as to put it in a con- dition to operate and make shipment. Rail & River Coal Co. v. B. & O. R R. Co., 14 L C. C. 86, 93. §26. Physical Capacity Less Railway Fuel. (a) Complainant attacked defendant's method of car distribution in the Coal Creek district of Tennessee on shipments into the Carolinas and Georgia. Under the method in force the tonnage of the cars for defendant's railway fuel sup- plied to the fuel contract mines was de- ducted from the rated capacity of such mines, and the remainder was considered the rating of these mines on which they shared with purely commercial mines in the pro rata distribution of cars avail- able for commercial shipments. As a re- sult complainant's competitors, being fuel contract mines, obtained more than their percentage of cars on the basis of mine capacity as compared with com- plainant and other purely commercial operators. Defendant was thereby en- abled to secure lower prices for coal used by it in consideration of furnishing a larger supply of cars to fuel mines. HELD, this method resulted in unjust discrimination, and that where there was an inadequate supply of coal cars the only regulation or practice in respect to the transportation of coal from the mines that was just, fair and reasonable, was to allot to each mine its fair and just proportion of the coal cars estimated upon its justly ascertained capacity and without regard to whether the mine fur- nished partly fuel coal and partly com- mercial coal, or commercial coal only. Railroads are entitled and required by law to take all proper and just measures to assure the regularity and certainty of their fuel supply; but in securing such supply they are not justified in beating dow^n the price of coal by means of plans of car distribution or in penalizing mines that refuse to sell fuel coal by lowered mine ratings or lessened car supply. Royal Coal &, Coke Co. v. r :)uthern Ry. Co., 13 L C. C. 440, 444, 448. (b) A carrier must be free to contract for the total output of a mine if it so desires; or it may contract for any part of a mine's output less than the whole, and it is entitled to get its fuel coal first, for without fuel it cannot haul even commercial coal to its destination, to say nothing of complying with its obli- gations to the public at large; but in all its acts it must deal even-handed justice in the matter of car distribution. If a mine contracts to furnish only a part of its output to the railroad for fuel, and if the filling of its contract with the rail- road calls for its full pro rata of cars, or more, then it should not receive other cars for commercial shipments. If such a mine, in filling its contract to supply fuel coal to the railroad, does not ex- haust its equitable pro rata of cars, then cars should be given it for commercial shipments sufficient to complete its full pro rata share of all available cars. Royal Coal & Coke Co. v. Suthern Ry. Co., 13 I. C. C. 440, 448. III. ASSIGNMENT AND DISCRIMINA- TION. C. Removal of Discrimination. §27. Effect. (a) Under the complaint of a mine o.wne-r at Virden, 111., it appeared that defendant supplied sufficient cars and that any apparent shortage was due to the practice by complainant of storing small coal in unbilled cars. Defendant served mines producing varying qualities of coal in five different states. It never established any rating for distribution of the different mines upon any part of its system. The evidence showed that, with the exception of the inquiry in ques- tion, no complaint had ever been filed CARS AND CAR SUPPLY, §28 (a)— §30 123 ly any of its coal operators on the round of discrimination and but few omplaints on the ground of insufii- ient supply of cars. HELD, in view f the fact that to establish mine atings and a system of car dis- ribution for all the different collieries erved by it would be a complex and dif- icult task, defendant was not required to do in the absence of a probable uture discrimination. Traer v. C. B. & 1 R. R. Co., 14 I. C. C. 165, 168. V. CONTRACTS FOR CAR SUPPLY. 28. n General. (a) A contract with the shipper by i^hich a carrier binds itself to furnish , specific number of cars, at specific imes and places, is not contrary to public olicy so long as its provisions do not equire the supply of cars to the shipper n such a way as to discriminate against ither shippers. Oregon R. R. & Navi- gation Co. V. Dumas, 181 Fed. 781, 785. (b) The Commission recognizes the ight of a railroad company to contract I'ith a particular operator for its fuel upply; it recognizes the rights of a con- lecting line also to do this; and each aay send its cars to those mines to the sxclusion of other mines. It also insists hat the owner of private cars is entitled o their exclusive use. But in each case t holds that all such cars must be :ounted against the distributive share of he mine receiving them. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 L C. C. 156, 3G4. (c) Defendant applied its system of ar distribution and ratings thereunder o three mines not located on its lines, )ut which it reached through switching connections with other railroads, and vith which it had no fuel contracts, and it a time when it was unable to supply he full demand for cars upon its own ines. HELD, such practice was unlaw- ul. The carrier owes a special duty to shippers who are entirely dependent ipon it for transportation facilities. It nay send its equipment from its line for he things that are necessary and es- sential for its own operation, such right arising from considerations of public 30licy, which recognizes the duty of a carrier to operate its line, and being 3redicated on necessity and not on the carrier's right of private contract. Traer ■i. C. & A. R. R. Co., 13 I. C. C. 451, 456. (d) If a carrier and a mine owner make a contract for the fuel supply of the carrier which does violence to the Act to Regulate Commerce or to the de- cisions of the courts, or is opposed to public policy, they are in no better po- sition than the parties to any other con- tract which violates the legal principles relating thereto. Traer v. C. & A. R. R. Co., 13 L C. C. 451, 457. V. DUTY TO TRANSPORT CARS. §29. In General. See Tariffs, §7 (jj). (a) Cars, as well as other property, may be the matter of carriage by a com- mon carrier. U. S. v. Union S. & T. Co., 192 Fed., 330, 337. (b) Martinsburg, W. Va., is located on the B. & O. R. R. and Bakerton and In- gle are located short distances east of Martinsburg on said line. The C. V. R. R. extends north and south through Mar- tinsburg, and Bunker Hill, W. Va., is lo- cated on it 10 miles south of Martinsburg. Complainant owned lime quarries at Mar- tinsburg, Bakerton, and Ingle. Its com- petitors owned similar quarries at Bun- ker Hill. For some years the C. V. R. R. and its connections had extended the same rates to Martinsburg as to Bunker Hill on lime and limestone shipped from said points to points in New Jersey, New York, Pennsylvania and West Virginia. It continued said rates from Bunker Hill but canceled same from Martinsburg, re- fusing to receive at Martinsburg com- plainant's cars loaded at that point and those coming to Martinsburg by the B, & O. R. R. from Bakerton and Ingle. The C. V. R. R. sought to justify such course on the ground that Martinsburg was am- ply served by the B. & O. R. R. and its connections, which reached the points of destination in question, and that defend- ant C. V. R. R. wished to develop the in- dustry at Bunker Hill. HELD, the C. V. R. R. and its connections must receive complainant's cars loaded at Martins- burg, and those loaded at Bakerton and Ingle tendered to the C. V. R. R. at Martinsburg, and transport them at the same rates accorded to Bunker Hill. Standard Lime & Stone Co. v. C. V. R. R. Co., 15 I. C. C. 620, 626. §30. Interchange of Cars. See Facilities and Privileges, §2 (c) ; Interstate Commerce, §4 (I), (m), (n); Switch Tracks and Switching. §7 (d), (o); Terminal Facilities, §3 (a); Through Routes and Joint Rates, §1 (e), §11 (1) (s). 124 CARS AND CAR SUPPLY, S30 (a)— §32 (c) (a) A carrier generally has no right to send empty cars off its line until it has furnished sufficient cars to mines on its lines, Colorado Coal Traffic Ass'n v. D. & R. G. R. R. Co., 23 I. C. C. 458, 460. (aa) Carriers are required to make reasonable rules and regulations with respect to the exchange, interchange, and return of cars used upon through routes and for the operation of such through routes, and where they have failed in this respect the Commission is empowered to determine the individual or joint regulation or practice that is just, fair, and reasonable. Missouri & Illinois Coal Co. V. I. C. R. R. Co., 22 I. C. C 39, 49. (b) Railroads are required under the Act to serve the through routes which they have established with other carriers without respect to the fact that in ren- dering such service their equipment may be carried beyond their own lines. Mis- souri & Illinois Coal Co. v. I. C. R. R. Co., 22 I. C. C. 39, 44. (c) The duty of the initial carrier to furnish equipment for a shipment which moves on to other lines is universally recognized, and in cases where that is impracticable or deemed unwise, the carrier is assumed to bear the burden of the transfer from the equipment of one line to that of another. Missouri & Illinois Coal Co. v. I. C. R. R. Co., 22 I. C. C. 39, 46. (d) Defendant ca 'ier had suffered from the acts of connecting carriers, which seized defendarVs coal cars in time of shortage and refused to return them. Defendant established an em- bargo and refused to supply cars for shipments from points on its own to points on connecting lines to which de- fendant had established through routes and joint rates. Defendant took this course for the purpose of protecting lo- cal traffic on its own line. HELD, that the embargo was unlawful, as the rt*il- roads under the Act were united into a national system, were required to estab- lish ard keep open through routes and furnish the necessary facilities there- for, and it was the duty of defendant to establish such rules and regulations with other carriers as would result in the prompt return of cars to its own line. Missouri & Illinois Coal Co. v. I. C. R. R. Co., 22 L C. C. 39, 47. §31. Private Cars. See Supra, §4; Infra, §32; Common Carrier, §6. (a) A carrier may no doubt lawfully refuse to carry certain classes of private equipment, but it may not distinguish between private cars that are owned by negroes and private cars that are owneii by whites, nor may it discriminate be- tween private cars that are owned by Armour & Co. and private cars of the same class that are owned by any other concern. Rehearing denied. Chappelle V. L. & N. R. R. Co., 19 I. C. C. 456, 457. §32. Rates on Private Cars. (a) A rate on a "combination car" is inapplicable to a private baggage car con- taining a stove. Chappelle v. L. & N. R. R. Co., 19 L C. C. 56, 58. (b) Minimum rates fixed by the L. & N., C. of G., I. C. and A. C. L. R. Rs. of $25 for each passenger or combination car, and $10 for a baggage car accom- panying a passenger car of theatrical troupes, appears to be reasonable so far as it applies to transportation in the South where rates appear to be gener- ally for this service on a higher basis than in other sections of the country. Chappelle v. L. & N. R. R. Co., 19 I. G. C. 56, 59. (c) Complainant, owner of a theatri- cal troupe which gives its performance under a tent, carries the same with him with the necessary poles and seats. He also provides two cars, one a Pullman sleeper and the other a baggage car, in- to which he places his equipment. Tariffs of defendants provided that tent, poles, etc., used by circuses and performances out-of-doors shall be treated as freight, while the tariffs permitted the parapher- nalia of other theatrical troupes to be carried as baggage. HELD, there ap- pears to be no difficulty whatever in loading these articles into an ordinary baggage car and there is no transporta- tion reason for a classification of theat- rical equipment which is so intense that it turns upon the question whether it is to be used in an out-of door performance or an indoor performance, and that if the paraphernalia can be loaded into an ordinary baggage car it shall be moved as part of the baggage under the rules governing the movement of private bag- gage and passenger cars. Chappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 58. CARS AND CAR SUPPLY, §32y2— §34 (b) 125 . REMEDIES AND DAMAGES. 12/2- In General. See Reparation, §3 (a), §19 (t), (u), §21 (d), V. 13. Action at Law. See Actions at Court, §1 (a). Law: Commerce (a) A party claiming to be injured by discriminatory rule for the distribu- )n of coal cars cannot maintain in a urt of law an action for the recovery damages before the Interstate Com- 3rce Commission has investigated the se and determined by its report that e rule is or was discriminatory, and is is true even though the action at ^ is not begun until after the rule has >en canceled by the carrier. Morris- le Coal Co. v. Pennsylvania R. R. Co., 3 Fed. 929, 934, 938. (b) A carrier is liable in an action at w for refusing to furnish cars for the ipment of cross-ties while at the same ne furnishing cars to others for the terstate shipment of other freight, nerican Tie & Timber Co. v. K. C. S. r. Co., 175 Fed. 28, 31. (c) It appeared that at an expense of 000 complainant had constructed a tip- i at its mine No. 2 and also a siding nnecting it with what is known as the uller Run tracks," a road about 1 mile ig extending from the defendant's line mines from which shipments had been ide for a number of years, but which the time seemed to have been closed, om its mine No. 2 the complainant was idy to make shipments in April, 1903, t the siding, as it asserts, was spiked wn by the defendant and kept in that idition for about 19 months. Requests re made by the complainant from ne 28 to July 31, 1903, for cars enough ship 100 tons of coal per day from It mine, but no cars were furnished by 3 defendants until Jan. 17, 1905, and m only after mandamus proceedings d been instituted in the court. The tendant's failure to supply cars for It mine while supplying cars for other nes in the district was one of the dis- minations alleged in the complaint, hat reason it had for refusing or fail- ; to set cars there was not satisfactorily plained of record, but for some reason o not explained the complainant al- ved the matter to rest in that condi- n for many months without taking Y steps against the defendant and without even renewing its demand for cars so far as the record discloses. HELD, it is not clear that the alleged closing of that*siding by the defendant can fairly be regarded as a basis for a charge of discrimination; it has more the character of a tort or a wrongful viola- tion of the defendant's general duty to the complainant as a common carrier, for which an appropriate action in the courts would doubtless lie to recover any damages thus sustained. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 I. C. C. 35G, 3G7. (d) In an action against a carrier for failing to furnish cars, founded upon the carrier's common law duty, the suit is not one to enforce the Interstate Com- merce Act, and although the damages arise by the act of a carrier engaged in interstate commerce with respect to ship- ments intended to be interstate, a state court has jurisdiction. Pittsburgh C. C. & St. L. Ry. Co. V. Wood (Ind., 1908), 84 N. E. 1009, 1012. §34. Defenses. See Courts, §2. (a) In a suit for damages by a shipper for the refusal of defendant carriers to furnish cars and transport cross-ties, de- fendants set up that they had on file with the Interstate Commerce Commission no published rates on cross-ties. Defend- ants' tariffs so on file did, however, con- tain interstate rates on "lumber, all kinds," of 24c. No specific rate on cross- ties was included in these tariffs. HELD, the published rates on lumber were ap- plicable to cross-ties and the defense set up was not valid. American Tie & Tim- ber Co. V. K. C. S. Ry. Co., 175 Fed. 28, 32. (b) A carrier cannot give a shipper a preference in car distribution in order that it may profit thereby; neither can it give the shipper a preference in order that the shipper may profit thereby, and, when called upon by an individual ship- per for full car service, the only defense which the carrier can interpose is that the supply which it has furnished is suf- ficient for normal demands, and that in times of stress it has fairly and impartial- ly prorated all of its car equipment. (Mc- Dowell, J., dissenting.) U. S. v. B. & O. R. Co., 165 Fed. 113, 126. 126 CARS AND CAR SUPPLY, §35 (a)— CLAIMS, §1 (a) §35. Res Adjudicata. See Evidence, V. (a) A suit to determine a question of car distribution brougWl between one shipper and a carrier, does not render the question res adjudicata with respect to other shippers who were not parties to the proceedings, and had no oppor- tunity to be heard therein, and such shippers may raise the same questions in a mandamus suit against the same car- rier. (McDowell, J., dissenting.) U. S. V. B. & O. R. Co., 165 Fed. 113, 124. (b) A certain coal company instituted, under section 23 of the Act, proceedings in a United States Circuit Court for the purpose of determining whether the B. &. O. R. R. was according a fair and equal distribution of car service upon the Monongahela division. Appellant coal company appeared at the hearing with counsel, but was not a party relator to the suit, and did not agree with the B. & O. R. R. to make the suit a test as to questions of car distribution generally in effect in the territory involved. The Circuit Court denied the mandamus, and the case was appealed to and pending in the Circuit Court of Appeals. Appellant filed a complaint with the Interstate Com- merce Commission, as to car distribution on the Pittsburg divisions of the B. & O. R. R., covering not only the question of distribution involved in the mandamus suit, but also complaining that the car supply of the B. & O. R. R. w)as inadequate, and that there was an unequal distri- bution of car service between the Mo- nongahela division and the Pittsburg di- vision. HELD, the appellant was not precluded from prosecuting its complaint before the Commission on the ground of res adjudicata, since the questions in- volved were not identical, and since the remedy of mandamus afforded by section 23 of the Act was cumulative and not exclusive. Merchants' Coal Co. v. Fair- mont Coal Co., 160 Fed. 769, 778. §36. Evidence. See Supra, §9; Evidence, §39, §63 (a), (e) ; Procedure Before Commission, §17 (d). (a) Where a defendant carrier was shown to have failed to supply complain- ant coal operators their just proportion of cars, complainants attempted to show that if they had been properly supplied, had had sufficient laborers, had sold all the coal so mined and shipped it at about, the average mine price for the period in question, they would have made a pro on a certain number of supposed ton^ coal equal to the difference between tl said average price per ton and the es mated cost of producing the coal. C this evidence complainants sought re aration. HELD, the evidence was t vague and indefinite. Reparation denie Royal Coal & Coke Co. v. Southern R Co., 13 I. C. C. 440, 448. CARTAGE. See Drayage Charges; Demurrage, (e); Tariffs, §4 (i); Track Storat I (b). (a) Cartage may, of course, be fi nished as an accessorial service by tl delivering carrier, and it may char therefor as a distinct and separate t( minal service, but such cartage presu poses delivery upon the team tracks the carrier and is supplementary therel Associated Jobbers of Los Angeles v. T. & S. F. Ry. Co., 18 I. C. C. 310, 316. CLAIMS. I. WHEN STATUTE OF LIMIT TIONS RUNS. §1. In general. §2. Claims accruing before Av 28, 1906. §3. Date of delivery of shipmei §4. Date of payment of charge §5. Date of amending claim. II. INFORMAL COMPLAINTS. §6. Effect of informal letter. §7. Necessity of formal coi plaint. §8. Requisites of informal coi plaint. III. PRESENTATION TO CARRIER § 9. Advisability. §10. Regulations. See Advanced Rates, VII; Allc ances, VI ; Cars and Car Supp VI; Passenger Fares and Faciiitii IV; Reparation. I. WHEN STATUTE OF LIMITATIO> RUNS. CROSS REFERENCES. See Allowances, §14 (e) ; Crimes, §i Overcharges, §7; Reparation, §7. §1. In General. See Allowances, §14 (e). (a) The limitation of time upon claiE prescribed in section 16 of the Act op€ ates without the aid of pleading. Arka CLAIMS, §1 (aa)— §3 (b) 127 sas Fertilizer Co. v. U. S., 193 Fed. 667, 673. (aa) Claims filed with the Commis- sion since August 28, 1907, must have accrued within two years prior to the date when they are filed; otherwise they are barred by the statute. Claims filed on or before Aug. 28, 1907, are not affected by the two years' limita- tion. Rule 10, Conf. Rulings Bulle- tin, No. 5, adhered to. Fels & Co. v. P. R. R. Co., 23 I. C. C. 483, 487. (b) The Commission has no juris- diction over claims barred by section 16. Anaconda Copper Mining Co. v. C. & E. R. R. Co., 19 I. C. C. 592, 594. (bb) Under the clause in the Act pre- scribing the limitation period, the word "damages" refers to the money value of any loss caused by any violation of the Act. In re Accrual of Cause of Action, 15 I. C. C. 201. (c) The duty of the carrier is to charge and collect the lawful rate, and when more is collected, the excess should be refunded, and when less, the deficiency should be collected. In re Accrual of Cause of Action, 15 I. C. C. 201, 204. §2. Claims Accruing before Aug. 28, 1906. (a) Any claim accruing before or af- ter August 28, 1906, may be presented within two years from the time it ac- crued, and claims accruing before Aug. 28, 1906, may be presented within one year from that date, even though accru- ing more than two years previous to the date named. L. & N. R. R. Co. v. Dick- erson, 191 Fed. 705, 711. (aa) Where a complaint is filed within one year from the passage of the Act of 1906, recovery of damages is not limited to causes of action that accrued within two years prior to filing of complaint; but if complaint is filed more than one year subsequent to the passage of that law, it is subject to the two-year limitation. Meeker & Co. V. L. V. R. R. Co., 23 I. C. C. 480, 482. (b) As to a claim filed within one year after the passage of the law of June 29, 1906, the claim is not limited to causes of action which accrue within two years prior to filing the complaint, but the statute of limitations of the state where the cause of action accrued, con- trols. Sondheimer Co. v. I. C. R. R. Co., 20 I. C. C. 606. 610. (c) Where shipments are made in No- vember and December, 1905, freight charges paid December 26, 1905, and com- plaint filed September 5, 1907, the claim is not barred by the statute of limita- tions under the amendment to the Act approved June 29, 1906. Woodward & Dickerson v. L. & N. R. R. Co., 17 I. C. C. 9, 10. (d) Congress intended to give one year within which there might be pre- sented to the Commission claims valid prior to the approval of the law, but which would thereupon have been barred without notice. Woodward & Dickerson V. L. & N. R. R. Co., 17 I. C. C. 9, 10. (e) Claims in which the cause of ac- tion accrued prior to August 28, 1906, are not deprived of the two years' privi- lege in the statute where filed prior to August 29, 1907. Nollenberger v. M. P. Ry. Co., 15 I. C. C. 595, 598. (f) Under section 16 of the Hepburn Act any claim, whether the cause of ac- tion upon which it is based accrued prior or subsequent to the effective date of the Act may be presented to the Commission within two years from the date of the accrual thereof; and as to causes of ac- tion that accrued prior to August 28, 1906, the claim may be presented at any time prior to midnight of August 28, 1907, although such cause of action may have accrued more than two years prior thereto, the intent of the proviso being to prevent such a construction of the preceding part of the section as to cut off claims upon previously accrued causes of action as to which the two years had already run, or so nearly so, that it would be impracticable for the claimants to present their claims within such period. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 206. §3. Date of Delivery of Shipment. (a) The limitation period prescribed In section 16 of the Act begins to run at the time of the delivery of the shipment, since the shipper's cause of action arises from the existence of the unreasonable rate, not from the payment of the ex- cessive charge. (Carland and Hunt, JJ., dissenting.) Arkansas Fertilizer Co. V. U. S., 193 Fed. 667, 670. (b) The statute of limitations runs against a claim for reparation on dis- criminatory freight charges, on shipments delivered to complainant more than two 128 CLAIMS, §3 (c)— §6 (a) years prior to the filing of the formal complaint for reparation. St. Louis Blast Furnace Co. v. V. Ry. Co., 21 I. C. C. 215, 216. (c) Complainant made shipments of petroleum in October, 1905, and at inter- vals thereafter to December, 1907. The charges originally assessed were paid either in advance or promptly upon de- livery. Subsequently undercharges were discovered and the additional charges were collected in July and August, 1908. The complaint asking reparation for un- reasonable charges was filed May 9, 1910, within two years from tlie time the addi- tional charges were collected but more than two years after delivery of the ship- ments were made. Complainant contended that the cause of action did not accrae until the additional charges were collected and therefore that its petition was filed in due time. HELD, that the period of two years within which the Commission has jurisdiction to entertain claims for dam- ages runs from the time when it becomes the legal duty of the carrier to collect and of the shipper to pay the lawful charges, and that the obligation rests upon the carrier to collect and upon the shipper to pay such lawful charges from the time of delivery of the shipment. Complaint dismissed. Standard Oil Co. v. C. T. T. R. R. Co., 21 L C. C. 460, 461. (d) The fact that additional charges were later collected did not prevent the running of the statute from the time when payment should have been required. Shoecraft & Son v. L C. R. R. Co., 19 L C. C. 492. (e) A reparation claim for a straight overcharge is barred by section 16, though part of the charges have been paid within two years. Shoecraft & Son V. I. C. R. R. Co., 19 I. C. C. 492. (f) On shipments delivered by the shipper to the carrier on January 29, 1906, and April 11, 1906, a complaint for reparation was not made until January 6, 1909. The freight charges were paid January 30, 1907. HELD, the claim was barred under section 16 of the Act, since the two-year limitation period began to run at the time when the shipment was delivered. Blinn Lumber Co. v. S. P. Co., 18 I. C. C. 430, 435. (g) Where delivery of the shipment occurred more than two years before the complaint for reparation was filed, it was barred by statute. South West Smelting & Refining Co. v. E. P. & 1 E. Ry. Co., Unrep. Op. 280. §4. Date of Payment of Charges. (a) Where shipments are made, D cember, 1906, and the expense bills pai on January 12th and 24th, 1907, the tw year limitation period begins to run fro] the latter dates. Marshall & Michi Grain Co. v. St. L. & S. F. R. R. Co., 1 I. C. C. 385. (b) A cause of action accrues und( the Act on the date the freight charge are paid. Marshall and Michel Grai Co. V. St. L. &. S. F. R. R. Co., 16 I. C. < 385; Kile & Morgan Co. v. Deepwat( Ry. Co., 15 L C. C. 235; Pleasant Hi Luniber Co. v. St. L. S. W. Ry. Co., 15 C. C. 532, 533; West Texas Fuel Co. T. & P. Ry Co., 15 I. C. C. 443. (c) In complaints for the recovery ( damages caused by charges of rates u: just or unreasonable or unjustly di criminatory or unduly preferential or pre udicial, the cause of action accrues whe the payment is made. In any other cor plaints for the recovery of damages f( alleged violation of the interstate cor merce laws of which the Commissic has jurisdiction, the cause of action a crues when the carrier does the unlawfi act or fails to do what the law require on, account of which damages ai claimed. In Re Accrual of Cause i Action, 15 I. C. C. 201, 204. §5. Date of Amending Claim. (a) Where the statute of limitatior is involved, the date of filing of tt amended claim is controlling. Virgini Carolina Chemical Co. v. St. L. I. M. & I Ry. Co., 18 L C. C. 1, 2. (b) Where a claim of reparation is n( filed with the original complaint but filed at a later date by amendment, a plication of the statute of limitations to be determined as of the date of filir such amendment. East St. Louis Walm Co. V. St. L. S. W. Ry. Co. of Texas, 17 C. C. 582, 584. II. INFORMAL COMPLAINTS. See Reparation, §22. §6. Effect of Informal Letter. (a) An informal complaint, containin sufficient information, when presented 1 the Commission within the two years pr scribed by the statute, stops the runnir of the statute of limitations. Beekma CLAIMS, §6 (aa) — (f) 129 Lumber Co. v. M. C. R. R. Co., 21 I. C. C. 27G; Beekman Lumber Co. v. St. L. & S. F. R. R. Co., 21 L C. C. 270, 272; Young- blood V. T. & P. Ry. Co., 21 L C. C. 5G9, 570; Memphis Freight Bureau v. St. L. S. W. Ry. Co., 18 I. C. C. 67; Fathauer Co. V. St. L. L M. & S. Ry. Co., 18 L C. C. 517, 520; Otis Elevator Co. v. C. G. W. Ry. Co., 16 L C. C. 502, 503; Hartman Furniture & Carpet Co. v. W. C. Ry Co.. L5 L C. C. 530, 531; Duluth Log. Co. v. M. & I. Ry. Co., 15 L C. C 627, 630. (aa) Within the limitation period complaints were tiled with the Commis- sion, which were returned to complain- ant because of defects in form and sub- stance. After two years had elapsed complaint was again made. HELD, that the case is within the ruling of the Commission; that an informal complaint stops the running of the statute and that the act of the secretary of the Commission in returning the papers with the suggestion that the matter was one for amicable adjustment ought not to operate against the complainant. Liberty Mills v. L. & N. R. R. Co., 23 L C. C. 182, 183. (b) Within two years from the date of delivery of shipments of cattle a firm of commission merchants who were the consignees filed with the Commission an informal claim for reparation, on ac- count of the collection by defendants of a rate alleged to have been unreasonable. The claim was stated with sufficient par- ticularity to avoid the operation of the limitation provided by law, showing the consignor, consignee and the railroad bill- ing. Upon further investigation of the matter it was found that the freight charges were actually paid by the con- signor, complainant in this proceeding, whose petition was not filed within two years from the time the cause of action accrued. HELD, the action taken by the consignees put defendants upon notice that they were charged with the collec- tion of an unreasonable rate and that the informal presentation of the claim by the consignee was sufficient to arrest the running of the statute and the consignor is entitled to consideration of his com- plaint upon the merits. Youngblood v. T. & P. Ry. Co., 21 L C. C. 569, 570. (c) On a carload of cottonseed meal and hulls and one of cottonseed hulls, shipped to Memphis, Tenn., from Little Rock and Pine Bluff, Ark., respectively, complainant was assessed a rate of 10c. Though formal complaint was not filed until after the running of the statute of limitations provided in section 16 of the Act, a complaint, informal only in the sense that, considered as a pleading, it was altogether inartificial, and showing date of shipment, actual weight, and the rate collected, coupled with a claim of a 4c overcharge, was filed before said statute of limitations had run. HELD, following Kaye & Carter Lumber Com- pany V. M. & L Co., 16 L C. C. 285, that the informal complaint was a "complaint for the recovery of damages" within the meaning of section 16 of the Act, suffi- cient to stop the running of the statute of limitations. Memphis Freight Bureau V. St. L. S. W. Ry. Co., 18 L C C 67, 69. (d) On a shipment made Oct. 2, 1906. upon which charges were paid Oct. 18, 1906, complaint was filed Jan. 19, 1909, but the claim was presented informally to the Commission on Sept. 24, 1908. HELD, the claim was not barred by the statute of limitations. Kaye & Carter Lumber Co. v. M. & L Rv. Co., 16 L C. C. 285, 286. (e) On shipments made in November and December, 1905, payment of freight charges was made in December, 1905. September 5, 1907, complainant wrote to the Commission complaining of the exac- tion of an unlawful rate and stated that it had demanded reparation from defend- ant and its demands had been ignored. HELD, the letter was sufficient to save the claim from the limitation provision of section 16 of the Act. Woodward & Dickerson v. L. & N. R. R. Co.. 15 L C. C. 170, 172, sustained, 187 Fed. 874, 878, 191 Fed. 705. (f) On Jan. 23, 1906, complainant shipped clothing from New York City to Janesville, Wis., via the Erie, the Chica- go & Erie, and the C. & N. W. Rys. No complaint, formal or informal, was filed against the Erie and the Erie & Chicago Rys. until Sept. 24, 1909. May 1, 1907, complainant filed an intended for mal complaint against the C. & N. W. Ry. alone. The Commission advised that the complaint was faulty and suggested that it make informal complaint to the C. & N. W. Ry.. which was immediately done. March 12, 1908, complainant called the Commission's attention to the fact that no reply had been received from the C. &. N. W. Ry. and it was then discov- ered that the original file of papers had been lost. May 15, 1908, complainant furnished duplicate of original complaint, 130 CLAIMS, §7 (a)— §8 (b) which was brought to the attention of the C. & N. W. Ry. On May 27, 1908, the C. & N. W. Ry. responded denying liability. Complainant was advised of this and filed complaint Sept. 24, 1909. HELD, with respect to the Brie and the Chicago & Erie Rys. the statute of limitations had run, but not so with respect to the C. & N. W. Ry. Amos Rehberg & Co. v. Erie R. R. Co., 17 I. C. C. 508, 510. §7. Necessity of Formal Complaint. See Reparation, §21. (a) A complaint stating a good cause of action is sufficient to stop the running of the statute, though the amount of damages claimed is not set forth. Fels & Co. V. P. R. R. Co., 23 L C. C. 483, 487. (aa) Where a claim has been filed with the Commission informally within the statutory period, it is not barred by reason of the fact that the formal com- plaint is filed after the expiration of said period. Southern Bitulithic Co. v. I. C. R. R. Co., 17 L C. C. 300. (b) Claims for reparation are not barred by the fact that the formal com- plaints are filed after the expiration of the limitation period where informal com- plaints are filed prior to the. expiration of said period. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. 548, 551. (c) On a shipment moving Feb. 10, 190G, the freight charges were paid Feb. 28, 1906; an informal complaint presented to the Commission, Jan. 20, 1908; and a formal complaint filed Aug. 26, 1908. HELD, said informal presenta- tion was sufficient to stop the running of the statute and the claim was not barred. Beekman Lumber Co. v. St. L. I. M. & S. Ry. Co., 15 L C. C. 274, 275. (d) Freight charges were paid July 19, 1904. The claim was presented in writing to the Commission June 13, 1907. Upon advice of the Commission formal petition was filed April 4, 1908. HELD, said claim was not barred under the limitation period prescribed by section 16 of the Act. Venus v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 136^137. (e) Formal complaint not necessary to bar running of statute of limitations. Venus V. St. L. I. M. & S. Ry. Co., 15 I. C. C. 136, 137. (f) The Act does not specify the man- ner of presentation of complaints and it is therefore not essential that claims i writing made to the Commission shoul be by a formal petition, as prescribed b the Commission's Rules of Practice, t prevent the operation of the statute c limitations. Venus v. St. L. I. M. & £ Ry. Co., 15 I. C. C. 136, 137. (g) Where the complaint was file informally May 21, 1908, and formal! April 22, 1909, it was not barred. Pi( neer Pole «& Shaft Co. v. C. H. & I Ry. Co., Unrep. Op. 123. (h) The complaint was filed wit the Commission within two years aft( the cause of action accrued, but tt papers were returned to the complai] ant and the claim was not again pr sented to the Commission for over or year. Following Youngblood v. T. & 1 Ry. Co., 21 I. C. C. 569, HELD, th£ the complaint was not barred. Arizoi] Ry. Comm. v. E. P. & So. W. Co., Unre] Op. 526. §8. Requisites of Informal Complaint. (a) A letter addressed by a shipper 1 the Commission setting forth in sul stance all that a formal complaint won] contain and which, while not asking fc a judgment for a specified sum, does a& for relief by way of damages for tt wrongdoing alleged in it, is a sufficier petition to stop the running of the statui of limitations. Dickerson v. L. & N. R; Co., 187 Fed. 874, 878. (b) On July 23, 1910, complainant file two formal petitions for reparation o charges assessed on certain shipments ( grain products milled in transit. The p titions failed to set out either the poim of origin or destination and contained n description of the shipments by date c otherwise, but the original inbound e: pense bills and copies of the outbouu bills of lading were attached to the cor plaints, and the amount of reparatio fully set forth. The secretary of tt Commission under a misapprehension r turned the complaints with informatio that the carriers could make reparatio without any order of the Commissio] Subsequently the complaints were file March 6, 1911, and the statute of limit tions was pleaded, the shipments havir moved from August to December, 190 HELD, the original filing of the petitioi should be considered such an inform; presentation of the claims as stoppe the running of the statute of limitation CLAIMS, §8 (c)— §10 (a) 131 Liberty Mills v. L. & N. R. R. Co., 23 L C. C. 182, 183. (c) Although the Commission has announced that ordinarily it will not award reparation upon informal proceed- ings unless the complaint is filed or the rate complained of is reduced within six months after the traffic moves, that rule is only an expression of the administra- tive discretion of the Commission and is confined to informal matters. It does not in any way modify the rule heretofore made that informal complaints showing the date of shipment, its weight, and the rate charged and collected, coupled with an allegation that the rate assessed is unreasonable, is a sufficient presentation of a claim to come within the provisions of section 16 of the Act. Riverside Mills V. Georgia R. R., 20 I. C. C. 423, 424. (d) A letter received by the Commis- sion which sets forth the precise nature of the claim and has attached to it ex- pense bills showing the shipments and the amount paid stops the running of the statute of limitations. Gamble-Rob- inson Commission Co. v. St. L. & S. F. R. R. Co., 19 L C. C. 114. (e) While the Commission holds that it is not necessary that a formal petition be filed in order to stop the running of the statute of limitations, an informal letter or other communication to accom- plish this result must contain all the elements of the claim. Fisk & Sons v. B. & M. R. R., 19 I. C. C. 299, 300. (f) Where there is no joint rate in effect and charges are exacted in accord- ance with the separately published tariffs of the initial and intermediate and deliv- ering carrier and the shipper fails to file claim for reparation within the statutory period, an informal request filed by the intermediate carrier for permission to refund to the shipper the switching charge exacted by it will not serve to prevent the claim for excessive charges by the initial and delivering carriers from being barred by the statute of lim- itations. Acme Cement Plaster Co. v. St. L. & S. F. R. R. Co., 18 L C. C. 376, 377. (g) An informal complaint directed against a switching charge does not operate to stop the running of the statute against a claim of unreasonableness of the through rate, to which such switching charge was incidental. Acme Cement Plaster Co. v. St. L. & S. F. R. R. Co., 18 I. C. C. 376. (h) A letter from a shipper to the Commission, making inquiry as to whether the shipment made by him was interstate or intrastate, and containing no complaint as to charges is not suf' ficient to stop the running of the statute of limitations. George Henley v. C. M. & St. P. Ry. Co., 18 L C. C. 382, 384. (i) Proof for reparation should con- sist of a verified statement by complain- ant showing date and weight of the shipments, date of payment and the reparation claimed. Robertson Bros. v. M. P. Ry. Co., Unrep. Op. 126. (j) Proof is necessary to establish an informal claim for reparation. Sun- derland Bros. Co. V. C. & N. W. Ry. Co., Unrep. Op. 148; Robertson Bros. v. M. P. Ry. Co., Unrep. Op. 126. III. PRESENTATION TO CARRIERS §9. Advisability. (a) In cases involving no principle and only small amounts, the shipper should first make his claim upon the carrier for reparation, and thereafter place his case, if necessary, upon the in- formal docket. Lindsay Bros. v. L. S. & M. S. Ry. Co., 15 I. C. C. 284, 285. §10. Regulations. (a) Complainant is unincorporated and is merely the business name adopted by A. H. Bewsher, its sole proprietor. Defendant tendered to complainant a voucher in the nature of a sight draft in settlement of a claim. Complainant signed the voucher, "The Bewsher Co., by Bewsher," but payment was refused because the signature did not comply with the rules of the defendant, in that the signature being in the style of a cor- poration, the party signing had not af- fixed his initials or designated his title in the company. Complainant later added the initials, but refused to append any title, and defendant continued to refuse payment. Complainant alleged that the defendant's rule is unjust and unreason- able. HELD, the Commission would have power to prohibit the regulation adopted by the defendant if it considered it un- reasonable, but on the record it does not so appear. Complaint dismissed. Bew- sher Co. V. U. P. R. R. Co., 22 I. C C. 146, 147. 132 CLASS RATES (a)— CLASSIFICATION, §1 (b) CLASS RATES. See Alternative Rates, I (b); Classi- fication, §18 (10) (a), §19 (9) (a); Commerce Court, §4 (c); Commod- ity Rates, §2, §3 (c) ; Procedure Be- fore Commission, §2 (bb); Reason- ableness of Rates, §47 (a), §66. (a) There is no standard by which class rates can be exactly measured, and in determining what is reasonable or unreasonable a considerable latitude must of necessity be allowed to the carrier, Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 L C. C. 519, 528. (aa) While it may be true that the tendency should be to eliminate com- modity rates and work more nearly to a class basis, still the rates of this country have been built up upon a different theory, and to apply that theory would be revolutionary and destructive of many legitimate business enterprises. United States Leather Co. v. S. Ry. Co., 21 I. C. C. 323, 325. (b) Eastbound distributing rates from Portland, Seattle and Tacoma, con- structed on a mileage basis, will result in a more satisfactory adjustment than the establishment of particular rates to representative destinations. Portland Chamber of Commerce v. O. R. R & N. Co., 21 I. C. C. 640, 643. (c) The Commission is disposed to encourage the making of class rates wherever practicable, because of their tendency to uniformity and stability. It is only in cases where it clearly appears that the inclusion of a given article in a class results in unreasonable charges and a lower classification will not meet the demands of justice that commodity rates are required to be established. Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 35. (d) It is generally recognized that class rates on heavy commodities are made to move the more or less limited shipments from place to place, and com- modity rates to move large, steady ship- ments. James & Abbot Co. v. B. & M. R. R., 17 I. C. C. 273, 275. CLASSIFICATION. I. RIGHT OF CARRIER TO ESTAB- LISH. §1. In general §2. Jurisdiction of Commission. II. BASIS OF CLASSIFICATION. §3. In general. §4. Bulk or weight of com- modity. §4|/2- "Knocked down" ship- ments. §5. C. L. and L. C. L. shipments. §6. Competition. §7. Mixed carloads, §8. Possibility of misbilling. §9. Risk. §10. Use of commodity. §11. Value, in. CLASSIFICATION REGULATIONS. §12. Bulk shipments and owner- ship. §13. Loading and unloading. §14. Marking and addressing. §15. Minimum charges. §16. Packing. IV. COMPARATIVE RATINGS. A. Analogous articles. §17. In general. §18. Specific comparisons. (1) Bar and band iron. (2) Cocoa butter substi- tutes. (3) Coffee percolators. (4) Earthenware cruci- bles. (5) Iron and steel articles. (6) Motorcycles. (7) Multigraphs. (8) Picture postcards. (9) Plate glass. (10) Triplex cloth. (11) Wire coat hooks. §19. Evidence and procedure. I. RIGHT OF CARRIER TO ESTAB- LISH. §1. In General. See Express Companies, §13 (d). (a) In the absence of statutory inter- position and regulation, a carrier is en- titled to establish and promulgate rea- sonable rules and regulations governing the manner and form in which it will re- ceive such articles of commerce as it is bound to carry, as well as the manner in which they shall be packed and pre- pared for shipment so that they may be delivered with convenience, safety and dispatch; and it has also the power to alter or modify such rules from time to time, as it may deem proper and expedi- ent, upon reasonable notice to the public. U. S. V. Oregon R. R. & Navigation Co., 159 Fed. 975, 979. (b) It is well settled that carriers have the right to transport certain commodi- CLASSIFICATION, §2 (a)— §3 (d) 133 ties under reasonable rules and regula- tions respecting their receipt, carriage and delivery. National Petroleum Ass'n V. L. & N. R. R. Co., 15 I. C. C. 473, 476. §2. Jurisdiction of Commission. See Courts, §9 (m); Facilities and Privileges, §1 (i). (a) The Commission, under section 1 of the Act as amended in 1910, giving it control of freight classification, has power to determine the reasonableness of differences made between the rates on various kinds of commodities. In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 604, 624. (aa) The Commission cannot say that a rate shall be fixed so as to meet the requirements or needs of any body of shippers in their efforts to reach a given market nor can it establish rates upon any articles so low that they will not return out-of-pocket cost. Neither can it fix an entire schedule of rates which will yield an inadequate return upon the fair value of the prop- erty used in the service given. There is, however, a zone within which it may properly exercise "the flexible limit of judgment which belongs to the power to fix rates." In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 623. (b) A classification will not be changed by the Commission in the ab sence of evidence that the rate is unlaw- ful unless it fairly appears that a par- ticular article is not rated with other articles similar in value, weight and other essential transportation qualities. W. E. Caldwell Co. v. C. I. & L. Ry. Co., 20 I. C. C. 412, 415. (c) The Commission will not approve the imposition by carriers of conditions which would benefit one or a few ship- pers, and which might, and perhaps would, correspondingly injure many others. McClung & Co. v. S. Ry. Co., 22 L C. C. 582, 584. (d) "Where the classification primarily affects and controls the rates or charges demanded, charged or collected by any common carrier or carriers sibject to the provisions of the Act, loi' the trans- portation of property as defined in tlio first section of the Act, or publishes the regulations or practices of such carriei or carriers affecting such lates. the Commission is authorized and empowered to pass upon such rates, or charges, or such regulations or practices. National Hay Ass'n v. M. C. R. K. Co., 19 1. C. C. 34, 38. (e) Any regulation or practice that withdraws from a shipper the equal op- portunity of taking advantage of the rates offered by a carrier, is a regulation or practice, "affecting rates," within the meaning of that phrase as used in section 15. Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 88. (f) A carrier should not make, and the Commission will not approve, a rule which the carrier cannot enforce. Cali- fornia Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422, 433. II. BASIS OF CLASSIFICATION. §3. In General. See Reasonableness of Rates, §2 (hh), §84 (aa). (a) Rules, regulations and charges af.- fecting the ultimate cost of transporta- tion must be made with a reasonable re gard for the nature of the con- modify transported, and without undue discrimi- nation as between localities or shippers. Sunderland Bros. Co. v. S. L. & S. F. R. \l. Co., 23 I. C. C. 259, 262. (aa) The fact that certain traffic is hauled in train load lots while complain- ant's traffic moves in carloads cannot be made the basis of a difference in rates. Rickards v. A. C. L. R. R. Co., 23 I. C. C. 239, 240. (b) In all classifications, consideration must be given to what may be termed public policy, the advantage to the com- munity of having some kinds of freight carried at a less rate than other kinds. This is the true meaning of the phrase, "What the traffic will bear." In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 604, 623. (c) While every effort conducive to uniformity of classificatio i is to be co'n- mended, its does not follow that that result should be attained oy accepting? as a standard a classification prescribing a rate, which, when applied to a given commodity or territory, becomes unrea- sonable. In Re Advancers in Rates on Locomotives and Tenders, 21 I. C. C. • 103, 107. (d) In framing classifications and rates, no one consideration is controlling. Bulk, value, liability to waste or injury in transit, weight, form in .which ten- dered, etc., must be taken into considera- 134 CLASSIFICATION, §3 (e)— §4 (c) tion. Ford Co. v. M. C R. R. Co., 19 I. C. C. 507, 509. (e) Classification is not an exact science, nor may the rating accorded a particular article be determined alone by the yardstick, the scales and the dol- lar. The volume and desirability of the traffic, the hazard of carriage, and the possibility or probability of misrepresen- tation of the article are considerations of prime importance in classification. At best it is but a grouping, and when the approximation resulting from it is not found to cause the exaction of an un- reasonable or a discriminatory charge it will not be disturbed. Forest City Freight Bureau v. Ann Arbor R. R. Co., 18 I. C. C. 205, 206. (f) Owing to differences in bulk and weight, there must of necessity be marked variations in revenue per car produced by articles in the same and other classes, and a disparity either way is not conclusive of the propriety of an adjustment. Kiser Co. v. C. of G. Ry. Co., 17 I. C. C. 430, 439. (g) Certain conditions govern classi- fication of freight, including weight per cubic foot, value per cubic foot, risk of breakage and volume of traffic. Yawman & Erbe Mfg. Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 260, 262. (h) Defendants operating north of the Ohio River adopted proportional rates published in the Southern Classification on traffic originating at points north of the Ohio River and destined to south- eastern territory. From this they ex- cepted certain articles upon which they established a commodity proportional rate for the haul to Ohio River crossings, from points of origin north of said river, which were higher than the class pro- portional rates published in the South- ern Classification. Complainant at In- dianapolis contended that such com- modity proportionals were unreasonable on the ground that they exceeded the class proportionals. HELD, no other evi- dence of the unreasonableness of the rates being offered, complainant's conten- tion was not well founded, since a par- tial adoption of a classification for the construction of certain rates in a terri- tory where ordinarily a different classifi- cation obtains is not improper, and all commodities need not necessarily be in- cluded under such general basis. In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 L C. C. 367, 369. (i) Conditions may make di^erent regulations reasonable. Wholesale Fruit & Produce Ass'n v. A. T. & S. F. Ry. Co., 14 L C. C. 410. (j) Because articles are in the same class, it does not follow that commodity rates should be alike on both, when they are wholly dissimilar. Goodman Mfg. Co. V. P. B. & W. R. R. Co., Unrep. Op. 362. §4. Bulk or Weight of Commodity. See Weights and Weighing, §9 (c). (a) Complainant in March, 1909, shipped a carload of brimstone barrels from New York, N. Y., to Minneapolis, and was charged at the rate of 35c per 100 lbs. At the time of the shipment, defendants published a commodity rate on brimstone, carloads, in mats or in bulk, of 28c per 100 lbs., but the tariff contained a proviso that brimstone in bulk would not be handled from New York City. HELD, the rate of 35c per 100 lbs. is not unreasonable. Shipments in barrels are not shipments in bulk, but shipments in packages. Package ship- ments are generally rated higher than bulk shipments of the same commodity. McLaughlin, Gormley, King Co. v. Maine Steamship Co., 22 I. C. C. 108, 109. (b) Long and bulky articles should be transported in box cars in every case where it is possible to do so, and when so transported they should be charged regular rates for less-than-carload ship- ments. When shipment, solely because of its length or bulk, is actually trans- ported on an open car, the rule applying a higher rate and minimum may be enforced. Merchants' & Mfrs.' Ass'n of Baltimore v. A. C L. R. R. Co., 22 I. C. C. 467, 470. (c) Complainant attacked the classi- fication on rowboats n. o. s. of four times first-class rates as unreasonable, and ad- vanced the low value of a rowboat and referred to rates on similar articles in support of his complaint. HELD, the question of value is one of the elements that is considered in fixing rates; how important it is and how much infiuence it has depend upon the circumstances of the particular case. A rowboat occupies a large amount of space in the car in comparison with articles of similar value and weight. Assuming that the rate on boats has been adjusted in accordance with all the various elements involved, none plays so important and controlling a part as the bulk. The testimony is that CLASSIFICATION, §4 (d)— §4^2 (c) 135 rowboats not only take up considerable space themselves, but nothing can be placed on top of them and nothing can be leaned against them when loaded in the car. While electric and gasoline launches and metallic life rafts take double first-class rates, steam yachts and racing shells four times first-class rates, and rowboats are lower in value than any of these articles, yet they also weigh much less in proportion to size. In the Oflicial, Western and Southern classifica- tions, rowboats take four times first-class rates, and no such showing has been made which would justify an order changing this classification which has been in force many years, and against which little dissatisfaction has been ex- pressed, except in the present case. Complaint dismissed. Keller v. St. L. S. W. Ry. Co., 21 I. C. C. 488, 489. (d) In making a classification of ar- ticles, bulk and similar elements affect- ing the desirability of the traffic should be considered. Metropolitan Paving Brick Co. V. Ann Arbor R. R. Co., 17 I. C. C. 197, 203. (e) A change in the size of articles should naturally be followed by a change in the rules which were made because of smaller equipment in use at the time such rules were established. Bennett v. M. St. P. & S. Ste. Marie Ry. Co., 15 I. C. C. 301, 303. (f) On camera and camera stands from St. Louis to Denver, complainants were assessed the double first-class rate of $3.70. In Official Classification, cameras were rated first class when less than 50c per lb. in value; otherwise, as three times first class. The great bulk exceeded the 50c limit. Such articles are bulky and liable to injury in trans- portation. Camera stands under first- class classification took double first-class when shipped set up; one and one-half times first class when knocked-down and tied in bundles; and first class when knocked down and boxed or crated, HELD, the rates attacked were not shown to be unreasonable. Merchants' Traffic Association v. A. T. & S. F. Ry. Co., 13 I. C. C. 283, 284. §4'/2- "Knocked-down" Shipnnents. (a) The Western Classification pro- vided carload ratings on incubators and brooders at second class, crated or boxed, minimum weight 12,000 lbs. per carload; and when "knocked-down, flat, boxed," fifth-class rating, subject to a minimum of 30,000 lbs. Exceptions to the classifi- cation made such articles as furniture, including desks, sectional bookcases, etc., hand churns, sewing machines, washing machines, in carloads, take a minimum from 12,000 to 16,000 lbs. Many of these articles are of considerably higher value yet load no more compactly or economi- cally than incubators, and take a lower classification. The incubator is a box- like affair enclosed in which are various coils for conducting hot air; these coils are securely fixed to, and are a part of, the body of the machine, which rests on legs. On the outside is a lamp attached to the end; on the top a regulating ap- paratus. When shipped, the outside fix- tures are removed and placed within the body of the incubator proper. The legs are removed and enclosed within the crate containing the body. HELD, that it is clearly shown that compliance with the conditions upon which the lower rat- ing is based is impracticable, and that the carload rating upon straight or mixed shipments of brooders and incubators crated or boxed ought not to exceed fourth class, subject to a minimum weight of 24,000 lbs. for a 36-foot car. Reparation awarded. Texas Seed & Floral Co. v. N. Y. C. & St. L. R. R. Co., 23 L C. C. 504. (b) The term "knocked down" has a definite and well-understood meaning in railroad terminology; it involves taking apart the article shipped in such a man- ner as to reduce materially the space occupied. Merely separating the article into parts and crating them without re- ducing the bulk would not constitute knocking down in such a manner as to justify a reduction in the rate. Fond du Lac Church Furnishing Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 481, 482. (c) Complainant shipped a church altar, Fond du Lac, Wis., to Olathe, Colo. The Western Classification made no dis- tinction between altars set up and knocked down, double first-class rate ap- plying to either. In it, however, pulpits and confessional boxes are rated double first-class when set up, and one and one- half times first class when knocked down. Furniture knocked down, boxed or crated is rated first class. It appeared that in certain cases wooden altars may be knocked down and crated in such manner as to occupy materially less space than when set up. HELD, that altars knocked down, boxed or crated ought not 136 CLASSIFICATION, §4i/2 (d)— §5 (d) to be rated higher than first class. Fond du Lac Church Furnishing Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 481. (d) Compainant attacked the charges of four times the first-class rate on a rowboat shipped from Clarendon, Ark., to Willow Springs, 111. The boat was crated and the only parts separated were the seats and oar locks, the oars packed separate from the boat. The tariff pro- vided for first-class rates on rowboats knocked down flat. HELD; the expres- sion "knocked down" has a definite and well-understood meaning; it involves tak- ing apart the article shipped in such manner that the several parts may be packed more compactly and that less space may be occupied. The lower rate is applied in consideration of the saving of space. It cannot be contended under the most liberal construction that the removal of the seats and oar locks from a boat reduces the space it occupies in any such sense as that contemplated in the tariff. Nor can the fact that this rowboat was crated be accepted as justifying a lower rate, there being no separate rate applicable to rowboats crated. Keller v. St. L. S. W. Ry. Co., 21 L C. C. 488. (e) Complainant shipped three types of peanut roasters, Peoria, 111., to Port- land, Ore., and Seattle, Wash. The first is constructed entirely of metal. The other two are constructed principally of metal, but each has a glass case in a wood frame. From one type the glass case is readily detachable, but from the other it cannot be removed without danger of injury except by a skilled mechanic. As shipped, the wheels, axles, springs and other detachable parts, in- cluding the glass case of the one type, in so far as would conduce to economy of space, were removed from the bodies of the machines and the parts packed and boxed or crated separately from the body. The tariff provided for the first- class rate when completely k. d. (knocked down); and, if s. u. (set up), one and one-half times the first-class rate on the first shipment, and by a supplement double the first-class rate on subse- quent shipments. HELD, that the classi- fication is ambiguous in not defining what is set up or knocked down, but that the shipment as made should have taken the first-class rate, and that the amounts collected in excess of the first- class rate are overcharges which should be refunded. Pacific Coast Biscuit Cc V. S. P. & S. R. R. Co., 20 I. C. C. 546 (f) On a mixed carload of iron hoops staves, headings and one keg of staves weighing 38,458 lbs., from St. Louis Mo., to Denver, Colo., charges were as sessed on 30,000 lbs. and a rate of 32.5* for the staves and headings, and 108 lbs and a rate of 92c for the keg of staples The shipment consisted of beer kegs anc hogsheads knocked down with necessary parts. The rate on beer kegs or barrel! set up was 48i^c. HELD, the rule pre scribing a higher rate on the articles ii question when knocked down than whei set up was unreasonable. Reparatioi awarded on the basis of actual weight and a rate of 48i/^c. Zang Brewing Co V. C. B. & Q. R. R. Co., 18 I. C. C. 337 339. §5. C. L. and L. C. L. Shipments. See Evidence, §52 (d); Differentials §3: Reasonableness of Rates, §5( (a). (a) The facts may not warrant tht fixing of a carload rate solely on the basis of any given percentage of the less than-carload rate. In Re Advances or Milk, 23 I. C. C 500, 503. (aa) The fact that only one or a few shippers can avail themselves of a car load rate is no objection to its validity Albree v. B. & M. R. R. Co., 22 I. C C 303, 319. (b) Carload shipper is entitled to bettei rate than he who can only present for shipment a less than carload, since the cost of the service is less, but that differ ence must not be greater than circum- stances warrant. Albree v. B. & M. R. R, Co., 22 I. C. C. 303, 327. (c) Where the carrier makes a car load rate for the transportation of milk, its rates per can must bear a reasonable relation to the carload rate, taking into consideration the fact that the cost of service to the carrier is less per car as a unit than when the milk is offered in small quantities in cans from numerous stations. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 327. (d) No decision is rendered on the propriety of a lower 10-carload rate than Dn a single carload rate, but the Commis- sion intimates that the lawfulness of wholesale rates is doubtful. Carstens Packing Co. v. O. S. L. R. R. Co., 17 I. C. C. 324, 328. CLASSIFICATION, §5 (e)— §6 (d) 137 (e) Because of the long-continued practice of the carriers to which the com- merce of the country had adjusted itself, the Commission early in its history ac cepted as valid and justified a carload ratj that was less proportionately than a rate on a less than carload shipment of the same commodity. Carstens Packing Co. V. O. S. L. R. R. Co., 17 I. C. C. 324, 328. (f) It is a false theory of transporta tion which seeks to force a shipper to avail himself of a less-than-carload serv- ice, which is more expensive to render for the purpose of increasing the gross revenues of the carrier. The true object should be to perform the service in the most economical manner and to charge for the service a reasonable compensa tion. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 564. (g) Shipments offered in carload quantities entitled to carload rate. Voorhees v. A. C. L. R. R. Co., 16 I. C. C. 42, 43. (h) Differentiation by the carriers of carloads from less than carloads in the application of rates may be warranted under certain conditions. Duncan & Co V. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 593. (i) The fact that shippers load and consignees unload carload freight justi fies in part the differences in rates be tween carload and less-than-carload ship nients. National Wholesale Lumber Dealers' Ass'n v. A. C. L. R. R. Co., 14 I. C. C. 154, 162. (j) The only discrimination which can legally be made between a large ship- ment and a small one must be based upon the difference in the cost of service. California Commercial Ass'n v. Wells, Fargo & Co., 14 1. C. C. 422, 431. (k) Bulk freight, as the. term is used in classifications providing that bulk freight will not be received in less than carload lots, means freight which is loose and not put up or contained in any pack- age. Wholesale Fruit & Produce Ass'n V. A. T. & S. F. Ry. Co., 14 1. C. C. 410, 418. §6. Competition. See Competition; Long and Sliort Hauls, §10 (m). (a) In an advance in the rates on locomotives in Southern Classification territory, it was admitted that locomo- tives on their own wheels cannot be affected by water competition, but it was argued that that was no reason why they should not be included within class rates, which are partly the result of water competition, for the reason that the same argument might be directed against many other articles in the classification which, likewise, were not influenced by water competition. HELD, that this line of argument is not meritorious. It is hardly conclusive to argue that simply because there are many other articles in the classification not subject to water competition, it is not objectionable to place locomotives, which are admittedly not subject to water competition, into one of these classes. Courts and com- missions have long recognized the valid- ity of water competition. Whatever may be the effect of water competition, it can- not be extended theoretically or prac- tically to articles to which such competi- tion does not apply by merely classing them with other things to which it does apply; that this argument with respect to the absence of water competition on certain articles in the Southern Classifi- cation merely points out the necessity of segregating those which are affected by water competition and those which are not so affected. It cannot force loco- motives into an unnatural class. In Re Advances in Rates on Locomotives and Tenders, 21 L C. C. 103, 109. (b) Carriers, within proper limita- tions, may take competition into con- sideration in classifying freight. Com- petition that may be considered in proper cases not only includes that between car- riers, but also that of the commodity produced in one section of the country with the same commodity produced in another section, and sometimes competi- tion of one kind of traffic with another kind. Metropolitan Paving Brick Co. v. Ann Arbor R. R. Co., 17 L C. C. 197, 203. (c) Water competition may justify a difference in the right of combining dif- ferent commodities at the carload rate. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 389. (d) Complainant purchased chinaware used for premiums in connection with its tea business from importers in New York, repacked same at its warehouse, and shipped same to various interior points. Defendants charged on crockery 20 per cent less than third class in less than carloads, whatever the form of package; on chinaware they charged first class in boxes and second class in casks. 138 CLASSIFICATION, §7 (a) — (c) The chinaware shipped by complainants was of little greater value than crockery. Both commodities involved about the same risk and trouble in transit. They were competitive articles. The import rate which defendants applied to china and crockery from the port to the interior destinations was the same irrespective of the form of the package. HELD, the two articles ought to bear somewhat the same transportation charges and china- ware should therefore be placed in sec- ond class. Union Pacific Tea Co. v. Penn. R. R. Co., 14 L C. C. 545, 547. §7. Mixed Carloads. See Express Companies, §16; Long and Short Hauls, §10 (u); Mini- mums, §6; Reasonableness of Rates, §84 (q); Substitution of Tonnage, §2 (h), (i), (j), (k); Tariffs §7 (bbb). (a) Shipments of wine and brandy moving in the same car, but under sepa- rate bills of lading, cannot be treated as mixed-carload shipments under the Western Classification, even though the shipper was told by the initial carrier's agent to take out separate bills of lading, as the shipper was charged with knowl- edge of the lawful rate, and therefore was bound to know that the mixed-car- load rating only applied to shipments received under one bill of lading, and delivered under one expense bill, to one consignee. Reno Wholesale Liquor Store V. S. P. Co., 23 I. C. C. 516. (aa) Complainant sought in connec- tion with a mixed carload shipment of iron beds and wire mattresses from Marion, where its factory is located, to Oakland, Cal., to have defendants embody in their tariffs an alternative clause in connection with the rates on mixed carload shipments to the effect that if the aggregate charge upon the entire shipment on the basis of the mixed carload rate exceeded the aggre- gate of the charge upon the shipment on the basis of a carload rate for one or more of the articles and the actual weight of the less-than-carload rate for the other articles, the shipper might have the benefit of the lower charge, HELD, no evidence having been offered to show that the rate upon mixed ship- ments or the rates upon articles when shipped separately were unreasonable upon the record as presented, the Com- mission is not convinced that the de- fendants should be required to establish the alternative rule. Marion Iron & Brass Bed Co. v. T. St. L. & W. R. I Co., 22 I. C. C. 272. (b) On less-than-carload shipments c boat spikes, shipped with carloads c railroad spikes from Richmond, Va., t Knoxville, Tenn., complainant, engage in the hardware business, complained c a rate of 37c per 100 lbs. There was commodity rate of 33c on railroad spikej which was embraced in the list of article taking railway-track material rates. Con plainant sought the application to boa spikes of the carload rate applicable t railroad spikes, and the privilege o shipping boat spikes in mixed carload with railroad spikes and other railway track material, and claimed that the -rat was conditioned upon the use to whic^ the articles were put. Defendant showe that the two kinds of spikes were neve used interchangeably, and no compet tion existed between them, and that th mixing of the articles would work a detr ment to the other shippers who handl l^oat (spikes only in less-than-carloac quantities, and that there was no conn mercial demand for such mixing. HELI that the Commission could not approv of the imposition by carriers of cond: tions which would benefit few shippers and which might injure many others Complaint dismissed. McClung & Co. "v S. Ry. Co., 22 L C. C. 582. (bb) Complainant shipped from F1 Dodge, la., to Butte, Mont., in one ca a consignment which consisted of thre( different commodities, dry-earth paint 32,635 lbs., paint in oil, 165 lbs.,- ani lampblack, 140 lbs. At the time o shipment there was a commodit; rate in effect of 87.6c per 100 lbs on dry-earth paint, minimum 30,00i lbs., but did not permit the inclusion o paint in oil under the carload rating. Th( same tariff contained a commodity rat< of $1,215 per 100 lbs. applicable on mixec paints, which was assessed by the car riers. HELD, that the charges assessec were unreasonable to the extent the: exceeded the charges which would have accrued had the dry-earth paint beer charged the carload rate of 87.6c, and th( paint in oil and lampblack the L. C. L rate applicable to each commodity Reparation to be awarded. Iowa Pain Mfg. Co. V. M. & St. L. R. R. Co., 21 I C. C. 477. (c) Reparation was asked on a rat( of 70c per 100 lbs. on a mixed carloac of building paper, deadening felt, dry fell and tar felt. The rate was assessed CLASSIFICATION, §7 (cc) — (e) 139 under a tariff wliicli provided for a rate on paper, building and roofing and felt other than wool felt, minimum 30,000 lbs., in straight or mixed carloads. The tar- iff also carried a mixed carload rate of 63c on paper, building and roofing, and saturated felt, minimum 40,000 lbs. Sub- sequent to the shipment, the tariff was amended to carry a rate of 60c per 100 lbs., minimum 40,000 lbs., which would have been applicable to the entire ship- ment had it been in force when the shipment moved. It appeared that neither dry nor deadening felt is in a proper sense a wool felt, although containing about 5 per cent woolen rags, and prob- ably 99 per cent of all dry felt is used for roofing purposes. It appeared that building and roofing paper and building and roofing felt are practically the same thing in the trade. HELD, the tariff in effect was such as to lead to confusion and discrimination in the application of different rates to similar mixed carloads, and that building and roofing paper and building and roofing felt other than wool felt are so nearly related that a tariff pro- viding more advantageous rates and com- binations with other similar articles in mixed carloads for the former than for the latter is unreasonable. Rate of 70c per 100 lbs., minimum 30,000 lbs., unrea- sonable to the extent it exceeded 63c per 100 lbs., minimum 40,000 lbs. Barrett Mfg. Co. v. C. M. & St. P. R. R. Co., 20 I. C. C. 79. (cc) The almost universal rule is that where a package contains articles taking different rates the entire package goes at the rate applicable to the high- est rated article. Oak Grove Farm Creamery v. Adams Express Co., 19 I. C. C. 454, 455. (d) Complainant in shipping pack- ages of coffee from Louisville, Ky., to points in Kentucky, Indiana, Tennessee, Virginia, West Virginia and Pennsyl- vania enclosed in the packages small toys such as thimbles, glass bead neck- laces, whistles, card games, paper flow- ers, tricks, etc., which if shipped separately would take the first-class rate under Official and Southern Classi- fication. These toys cost i/^c to %c apiece and 100 of them weigh about 2 lbs. Official Classification tariffs granted the privilege of enclosing "ad- vertising premiums, i. e., articles placed in packages with other commodities for advertising purposes," and provided that the advertising articles should be charged at the rates applicable to them and the coffee at the rate applicable to it. The Southern Classification con- tained a similar provision except the same did not apply from Louisville. Defendants allowed the privilege in question in other tariffs to which they were parties. HELD, the provisions of the Official Classification were broad enough to include the articles shipped by complainant since it was immaterial whether the articles be an advertise- ment, advertising premiums, gifts or prizes so long as their purpose was to in- duce trade; and the Southern Classifi- cation should be amended to include shipments from Louisville, since to ex- clude Louisville constituted unjust dis- crimination. Ouerbacker Coffee Co. v. Southern Ry. Co., 18 I. C. C. 566, 571. (dd) Complainant manufactured a cheap laundry soap selling at six bars for 25c. On each bar of the soap, while it was still soft and before it was wrapped, a safety pin was impressed, weighing five ounces to the hundred and costing 9c per 100. Complainant was assessed first-class rates. Defendants' tariffs provided that packages contain- ing articles of more than one class should be charged at the less-than-car- load tariff rate for the highest classed article contained therein. Safety pins were subject to first-class rates. The tariffs further provided that articles and packages containing premiums should be charged 110 per cent of the regular rates. The purpose of the pin was to enable ignorant persons to iden- tify complainant's soap. The pin was not a marketable one. To apply the first-class rate to the soap in question would drive it from the market on ac- count of high competition. HELD, the pin was in the nature of a trademark similar to the tags attached to plug tobacco and the soap should not be subject to the first-class rates applied to safety pins or to the rates applied to articles with premiums, but should take the fourth-class rates applicable to soap. Iowa Soap Co. v. C. B. & Q. Ry. Co., 16 I. C. C. 444,. 445, 446. (e) Mixing carloads or whatever privi- lege of this sort is accorded to one lo- cality should be accorded to another served under the same circumstances. Water competition, however, may justify differences. City of Spokane v. N. P. Ry. Co., 15 L C. C. 376, 389. 140 CLASSIFICATION, §7 (ee)— §10 (b) (ee) Whether shipments of petroleum oils shall be transported in the same car with general merchandise or in cars set aside for this particular traffic, the car- rier must determine for itself. National Petroleum Ass'n v. L. & N. R. R. Co., 15 I. C. C. 473, 476. (f) Under the rules of the Western Classification, complainant, shipper of beer and mineral water from Waukesha, Wis., to points in Minnesota, Iowa and North and South Dakota, was not per- mitted to mix mineral water in cases and bottles with beer and beer products in cases and bottles in order to secure the fifth-class carload rate on the combined shipment. Under the classification, beer and beer products, and mineral water in cases and bottles, each take the fifth-class rate on shipments in carloads and the third-class rate on shipments in less-than- carload lots. In Official Classification territory such mingling of commodities was permissible in order to secure the carload rate, and through an exception to the Western Classification, made to place the Milwaukee gateway on a parity with Chicago, complainant was able to ship mixed carloads of beer and mineral water at the carload rate into Illinois. Complainant attacked the rule forbidding the mixing of beer and mineral water to make up carloads. HELD, following Pa- per Mills Co. V. Penn. R. R. Co., 12 I. C. C 510, the rules attacked were not unlawful (Clements and Lane, comm'rs, dissent ing.) Milwaukee-Waukesha Brewing Co. V. C. M. & St. P. Ry. Co., 13 I. C. C. 28, 30. §8. Possibility of Misbilling. See Crimes, IV; Procedure Before Commission, §15 (b) ; Transporta- tion, §3 (b). (a) Possibility or probability of mis- representation (.f article is one of the numerous considerations of prime im- portance in classification. Forest City Freight Bureau v. A. A, R. R. Co., 18 I. C. C. 205, 206. §9. Risk. See Evidence, §52. (a) Rates on explosives should vary according to the risk attending the trans- portation of each particular kind. Blu- menstein v. P. & R. Ry. Co., 21 I. C. C. 90, 92. (b) Liability to waste or injury in transit must be considered in framing classifications and rates. Ford Co. v. M. C. R. R. Co., 19 L C. C. 507, 509. (c) A charge of third class rates on raw tallow in barrels or other packages with cloth covers is not shown to be un- reasonable, although the charge for such commodity in barrels or casks with wooden covers is fourth class, in view of the fact that the barrels when covered with cloth can be placed by the carriers in one position only during transit and also because of the fact that on account of its disgusting character it endangers other traffic when reshipped. Green Bay Soap Co. V. C. M. & St. P. Ry. Co., 14 I. C. C. 609, 610. §10. Use of Commodity. See Advanced Rates, §18 (9); Cars and Car Supply, §32 (c) ; Classification, §12; Discrimination, §3 (g) (gg), (i), §6; Forwarders, II; Restricted Rates; Tariffs, §3 (j), §7 (c), §14 (d), (f). (a) A classification rests upon an im- proper basis, which makes the rate de- penaent upon the use to which the article shipped is to be devoted. Jones Bros. Co. V. M. & W. R. R. R. Co., 21 I. C. C. 577, 579. (b) Complainant shipped granite in- tended for the construction of mauso- leums from Barre, Vt, to Paducah, Ky., and Birmingham, Ala., and was assessed the rate applicable to monumental stone, and not the lesser rate on building stone. The stone was hammered to a horizonal plane for the purpose of forming a joint on the outer edges and at either end; on the sides the stone was rough. The roof stones, gables and frieze were ham- mered or machined to a smooth surface on one side; certain columns were turned in a lathe and finished by a pneumatic tool, and the bowls of two urns were polished. HELD, it is the kind and value of the stone entering into a monument that justifies the distinction found in the classification. A monument is primarily ornamental and the stone that enters into its construction is usually exposed to view on its four sides and any fiaw or blemish that shows on any side would result in its rejection. In handling, the risk of damage is increased fourfold by the four surfaces that must be protected. On the other hand, building stone when in place is exposed on but one surface. Defects on the other surfaces may be ignored, and the finishing is on but one face; the others may be as uneven as is compatible with a proper joining. De- CLASSIFICATION, §10 (c)— §11 (b) 141 spite its memorial character, a mauso- leum is in reality a small building that differs only in size from the buildings for which building stone is ordinarily in- tended. The stone used in its construc- tion in quality and in price is substan- tially the same as building stone. There is no transportation reason why it should be charged a higher rate, and the ship- ments in question should have taken the rate applicable to building stone. Reparation awarded. Jones Bros. Co. v. M. & W. R. R. R. Co., 21 I. C. C. 577. (c) Complainant, owner of a theat- rical troupe which gives its perform- ances under a tent, carries the same with him with the necessary poles and seats. He also provides two cars, one a Pull- man sleeper and the other a baggage car. Into which he places his equipment. Tar- iffs of defendant provide that tent, poles, etc., used by circuses and performances out of doors shall be treated as freight, while the tariffs permit the paraphernalia of other theatrical troupes to be carried as baggage. HELD, there appears to be no diflaculty whatever in loading these articles into an ordinary baggage car, and there is no transportation reason for a classification of theatrical equipment which is so intense that it turns upon the question whether it is to be used in an out-of-door performance or an indoor performance, and that the tariffs should be amended substantially to provide that if the paraphernalia can be loaded into an ordinary baggage car it shall be moved as part of the baggage under the rules governing the movement of pri- ,vate baggage and passenger cars. Chap- pelle V. L. & N. R. R. Co., 19 L C. C. 56, 58. (cc) A carrier has no right to dic- tate the use to which a commodity shall be put. American Creosote Works V. I. C. R. R. Co., 18 I. C. C. 212, 215. (d) The Commission will refuse to sanction a classification resting upon the use to which a commodity is put. Metropolitan Paving Brick Co. v. A. A. R. R. Co., 17 I. C. C. 197, 204. (dd) The use to which a commodity is put affords no basis for a difference in rates. Sligo Iron Store Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 139, 142. (e) On metal furniture, knobs or trimmings from Grand Haven, Mich., to Waterbury, Conn., and Rome, N. Y., to San Francisco, complainant was charged the first-class rate of $3.00, and in a few instances the second-class rate of $2.60. At the time of shipment a commodity -rate of $2.00 was in effect on "brass shelves and canopies for gas and electric lig^^t fixtures, boxed." After the shinments in question, defendants established a T'^te of $2.00 on "brass curtain-pole trim- mings and brass furniture trimmings, n. o. s." The articles shipped were made of the same materials as brass shelves and canopies for lighting fixtures, the only difference being the use to which they were put. HELD, the rate charged was unreasonable, to the extent '*■ ex- ceeded $2.00. Reparation awarded. Merle Co. V. A. T. & S. F. Ry. Co . 17 I. C. C. 471, 472. (f) A carrier has no right to at- tempt to dictate the uses to which com- modities transported by it shall be put. Its duty is to transport them at its tariff rates and on equal conditions for all. Tariffs naming different rates on nitrate of soda when, destined for the manufacture of fertilizer and of powder are unlawful. Fort Smith Traffic Bu- reau V. St. L. & S. F. R. R. Co., 13 I. C. C. 651, 655. §11. Value. See Advanced Rates, §18 (5); Evi- dence, §52 (a), §61; Reasonableness of Rates, §38; Tariffs, §7 (gg); Track Storage, II (g). (a) From a transportation standpoint; leather is desirable freight. TI e loading from southern tanneries averages about 35,000 lbs. per car. The liability ^^ dam- age is extremely slight. No special ex pedition in its movement is required. The movement itself is uniform through- out the year. The average cost of han- dling leather is probably below that of freight in general. Leather is, however, a valuable article. The invoice price of a carload like those shipped from the tanneries of the complainants ranges from $7,000 to $10,000 per car. In Offi- cial, Western and Southern Classifica- tions, leather is rated fourth class in carloads, second class in less than car- loads, and, considering its value, it can hardly be said that this classification is too high. United States Leatl.er Co. v. Southern Ry. Co., 21 L C. C 323, 325. (b) Ordinarily, the same rate is ap- plied to all lumber without reference to its value or condition, and this rate fre- quently includes not only manufactured lumber, but articles made from it, like doors, sash, blinds, etc. To this general rule, exceptions are sometimes made by 142 CLASSIFICATION, §11 (c) — (g) the carriers themselves whenever tne exigencies of a particular case require it, and without suggesting that any gen- eral departure from the present rule would be desirable or reasonable there is no reason why in particular cases lumber may not properly be subjected to a further classification. In the present case, it appearing that rough green fir lumber, which is the cheapest lumber manufactured and the value of a carload of which would not exceed one-half that of a carload of the better grades of dry and dressed lumber at the mill, cannot move from the mills of complainants in the Willamette Valley to San Francisco and bay points unless it receives a rate lower than $5 a ton, while the higher grades of lumber can be disposed of on the San Francisco markets and other markets upon the existing rate, that there is, therefore, acco-rding to every canon of rate making substantial reason why this lumber should be classified, and a lower rate applied to the heavier and cheaper variety than applies to the higher grades and the finished product. Oregon and Washington Lumber M'f's' Ass'n v. S. P. Co., 21 I. C. C. 389, 395, 396. (c) Reparation is asked on a shipment of glue stock, Boston, Mass., to Chicago, 111., on which charges were collected based on the fifth-class import rate of 27c per 100 lbs. HELD, glue stock is a commodity of very low grade, con- sisting mainly of the waste of hides, the selling price not exceeding from one to three cents per pound; that the fifth- class rating which applies to glue stock under the Official Classification also cov- ers commodities of much higher grade, such as hides, which have a value rang- ing from 16c to 20c per pound, and glue, the finished product of glue stock, which only contains 10 to 15 per cent glue; that the rate applied was unjust and un- reasonable to the extent that it ex- ceeded the sixth-class domestic rate of 24c per 100 lbs., and that the rate for the future should not exceed the rate simultaneously in effect on "fleshings, tanners' slaughter-house offal and wet hide trimmings carload" between the same points. Reparation awarded. Barr Chemical Works v. P. & R. R. R. Co., 20 I. C. C. 77, 78. (d) Value must be taken into con- sideration in framing classification and rates. Ford Co. v. M. C. R. R. Co., 19 I. C. C. 507, 509. (e) Complainant shipped pressed brick, in carloads, from Cheltenham, Mo., to Tuscaloosa, Ala., under a rate of 15c per 100 lbs. Contemporaneously there was in effect a rate of 12c per 100 lbs. on fire brick, a more valuable kind of brick than pressed brick. HELD, car- riers can make no difference in classifi- cation between fire brick and pressed brick, but must accord to all brick the same rate; that brick is a desirable traffic to handle, moving in large quanti- ties, and the cars can be loaded to their full capacity, and is not subject to loss and damage, and all these elements should be considered in the making of a rate, and call for a low rate. If the carriers have seen fit to voluntarily establish the rate of 12c on fire brick, it does not seem unreasonable to hold that it is a just rate to be applied to the transporta- tion of brick in general. P iparation awarded. Hydraulic-Press Brick Co. v. M. & O. R. R. Co., 19 I. C. C. 530. (f) Complainant at Cleveland de- manded that the classification of horse blankets in carloads and less than car- loads should be reduced from lirst class to fifth class, and from first class to third class, respectively. The blankets were subject to very little damage in transit. Their value ranged from $1 to $7 each. A given bale often contained blankets of many different styles and prices. Complainant's contention was that while the rate on high-priced blankets was not excessive, it was un- reasonable, taking into view the average value of the bales. Complainant was prospering under the rates attacked, and. felt little competition. Under the classi- fication attacked, horse blankets were in- cluded under "dry goods," and took the same -rates as bed blankets, to which they bore a great resemblance in quality and price. HELD, a classification could not be based on value, since the number of classes would be too large, and the re- finement too subtle for practical opera- tion, and on the evidence presented the Commission was not justified in with- drawing a particular commodity varying in value, density and dimensions with each bale, from the general class to which it belonged. Forest City Freight Bureau v. Ann Arbor R. R. Co., 18 I. C. C 205. 206. (g) On less-than-carload shipments from St. Louis to Denver, Colo., of wooden bungs in barrels, the through second-class rate under the Western Classification of $1.45 was collected. CLASSIFICATION, §11 (h) — (m) 143 Wooden ax or mop handles, wooden mop or broom handles (with or without heads) in boxes or crates; wood turned, in boxes; wooden wedges in boxes and crates, were classified fourth class in Western Classification. These commodi- ties were of greater value than wooden bungs. The latter took third-class rates in the Official Classification and fourth class in the Southern Classification. HELD, the rate exacted was unreason- able, as was shown by comparison with other classifications, and wooden bungs should take the fourth-class rate of 92c. Reparation awarded. Zang Brewing Co. V. C. B. & Q. Ry. Co. et al., 18 L C. C 337, 338. (h) The average value of theliighest grade of fire brick was about $18 per 1,000. The average value of other grades of brick was about $10 per 1,000. The highest grade of fire brick will move freely under a higher rate than will per- mit the free movement of lower grades. The average price of high-grade fire brick at the factory, reduced to tons, was about $5.00, building brick about $4.00, and pav- ing brick about $3.00. The evidence in- dicated that no possible description of high-grade fire brick could be made which would reasonably insure that only that grade would be included in assessing rates. No phraseology had been found for defining first grade fire brick of high value which would not also describe and include brick of lower grade and value. The placing of high-grade fire brick in one class to take a higher rate would therefore leave too much to manipulation by shippers and carriers to insure that equality of rates between strictly competitive articles and articles of the same class which it is the purpose of classification to secure. HELD, the conclusion reached in the Stowe-Fuller Case, 12 L C. C. 215, to the effect that one rate should be applied to fire, build- ing and paving brick should be sustained. Metropolitan Paving Brick Co. v. Ann Arbor R. R. Co., 17 L C. C. 197, 205. (i) Brick is a very desirable traffic. It moves in large volume, can be loaded to full capacity of cars, and is not sub- ject to loss and damage. Paving and low- grade fire brick move in any sort of freight equipment and are a low-grade commodity. These elements seem to call for the making of low rates. Metropolitan Paving Brick Co. v. A. A. R. R. Co., 17 L C. C. 197, 207. (j) Boots and shoes are high-grade traffic and should accordingly bear their proportionate share of general transpor- tation expense. Kiser Co. v. C. of G. Ry. Co., 17 I. C. C. 430, 441. (k) On a carload of gum timbers from Fenter, Ark., to Woodruff, Mo., complain- ant was assessed a charge in excess of the rate on lumber, which was 19c, ex- cept for yellow pine and woods of value. HELD, rates on ties should not exceed rates upon lumber of the classes and de- scription of wood of which the ties were made. Reparation awarded on the basis of the 19c rate. Beekman Lumber Co. V. C. R. I. & P. Ry. Co., 16 L C. C. 528, 529. (1) Complainant attacked rates on ground iron ore from Iron Ridge, Wis., to various points in other states. The cost of production of this commodity was from $6.00 to $6.50 per ton, and the aver- age selling price, f. o. b. mills, $9.50 per ton. The market value was somewhat lower than that of pig iron, which was rated sixth class in Official Classification, and Class D in Western Classification, whereas, ground iron ore took fifth class and Class C rates in these classifications, respectively. HELD, while the Commis- sion does not consider value as the sole test of the reasonableness of classification ratings, it does appear that ground iron ore is such a low-grade commodity that it cannot move unless accorded compara- tively low rates, and should be accorded rates from Iron Ridge to points in Cen- tral Freight Association and Trunk Line territories not exceeding the regular sixth-class rates applied under the Offi- cial Classification between the same points, and that this commodity was en- titled to Class D rates under the West- ern Classification from Iron Ridge to points in Western Trunk Line Associa- tion territory. Winters Metallic Paint Co. V. C. M. & St. P. Ry. Co. et al., 16 I. C. C. 587, 588. (m) On an uncrated automobile from Beatrice, Neb., to Kenosha, Wis., com- plainant was assessed the published first- class rate of 92c on a minimum of 5,000 lbs., the automobile weighing, in fact, 725 lbs. He was mistakenly assured *y defendant's agent at the point of origin that it would go at $1.84 on the actual weight. No evidence was offered that the first class rate was unreasonable. The machine was an old one, of small value. Complainant contended that a difference in rates should be applied to 144 CLASSIFICATION, §11 (n)— §12 (b) new and second-hand machines. Automo- biles are dangerous to handle, and the carrier is likely to incur heavy damages from slight accidents thereto in transit. The ca-r in question had to be transferred with great care from one car to another on three different occasions. HELD, where carriers have applied one rate to all automobiles, it is not possible for them to differentiate between machines of different values, and whether old or new, as there would be no place where a definite line could be drawn. Under the circumstances, it cannot be said that the placing of old and new automobiles in the same class is unreasonable. Neither is the record sufficient for a finding that the class rate of 92c was unreasonable. Whitcomb v. C. & N. W. Ry. Co., 15 I. C. C. 27. (n) On a shipment of old canvas from Worcester to Chicago the first-class rate of 75c was exacted. Said canvas was of cotton and of the kind used in making sales, was worn out so as to be of no further use as canvas, and was worth as junk about 3c per lb. HELD, it should have been assessed the junk rate of 35c. The rate exacted found to be unreason- able, and reparation awarded. Channon Co. v. L. S. & M. S. Ry. Co., 15 I. C. C. 551, 552. (o) Lumber moves in large quanti- ties, is loaded by shipper and unloaded by consignee, is shipped in both closed and open cars, is loaded to a high mini- mum carload weight, does not require especial or expedited movement, is not easily injured in transit, causes few dam- age claims, is, so far as transportation is concerned, a low-grade commodity, and it should move at low rates, especially when the haul is long, as it is in this case. Oregon & Washington Lumber Co. v. U. P. R. R. Co., 14 1. C. C. 1. (p) The Commission declines at the present time to establish a rating upon basis of value, but commends the idea to the consideration of the carriers. Union Pacific Tea Co. v. Pa. R. R. Co., 14 I. C. C. 545, 546. (q) Differences of commodities ordi- narily result in a substantial difference im rates. Anthony v. P. & R. Ry. Co., 14 I. C. C. 581, 583. (r) Complainant attacked the classi- fication first class on wire brooms and brushes as unreasonable, compared with toilet brushes taking the same rates. Wire brushes are not intended for toilet use, and are a rough, heavy, low-priced product, made for the most part of un- finished hardwood blocks, brush wire and common wire nails and used for scrub- bing and cleaning rough surfaces. These brushes and brooms are immune from damage in transit, and, packed for ship- ment, weigh 38 lbs. per cubic foot; aver- age value per cubic foot, $6.i5. Toilet brushes have an average value of about $27.00 per cubic foot. HELD, wire brooms and brushes should take a lower rate than the finer class of brushes and brooms, and should be rated as third class. Forest City Freight Bureau v. Ann Arbor R. R. Co., 13 I. C. C. 109, 114. (s) Classification provision for valua- tion charges of 10 per cent on declared valuation of jacks in excess of $75 for each animal found to be unreasonable to the extent that it exceeded li^ per cent of the declared valuation. Repara- tion awarded. Overly v. Adams Express Co., Unrep. Op. 360. ill. CLASSIFICATION REGULATIONS. §12. "Bulk Shipments" and Ownership. See Forwarders, II. (a) Where the tariff provides that during certain seasons of the year refrig- erator cars will not be furnished indi- vidual shippers unless loaded to 10,000 lbs. minimum, and contains another rule that an unloading charge will be assessed against separate shippers using a car for a consolidated shipment, it is unrea- sonable to assess an unloading charge against that shipper who orders a car and loads it to the minimum, even though other shippers subsequently from the same shipping point also load into the car, which then moves as a consolidated shipment. Davies v. I. C. R. R. Co., 19 I. C. C. 3. (aa) Personality of consignee affords no basis for a difference in rates. Sligo Iron Store Co. v. A. T. & S. F. Ry. Co., 17 L C. C. 139, 142. (b) The only shipper whom the car- rier knows is the one offering the ship- ment, and the rate which this shipper pays is the lawful rate. The law con- demns the use of a device to evade the payment of a lawful rate; it does not forbid the use of the rate. And so long as the carrier offers to transport a cer- tain weight of goods at a fixed rate, the shipper of these goods is certainly not evading the law by paying this rate. Cal- CLASSIFICATION, §12 (c)— §13 (c) 145 ifornia Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422, 428. (c) The cost of carrying a "bulked shipment" is not greater than the cost of carrying the same amount of freight at the instance of an individual owner. The charge must therefore be the same in each case. California Commercial Ass'n V. Wells, Fargo & Co., 14 I. C. C. 422, 432. (d) In gathering several packages of goods together and shipping them under the carrier's rates on large shipments, a shipper is not by a device evading the law, but is legally availing himself of the rates which the carrier offers. California Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422. (e) A number of packages of mer- chandise, aggregating 16,000 lbs. in weight, were assembled in New York by the complainant's agent and offered to defendant at one time and one place, con- signed under one bill of lading to the complainant, a voluntary association of San Francisco merchants. Defendant's tariff provided a rate of $8 per 100 lbs. for shipments of 10,000 lbs. and less than 20,000 lbs. Applying its rule as to "bulked shipments intended to be distributed to the consignee," defendant charged its parcel rate against each separate pack- age. HELD, that the rule against "bulked" shipments is illegal. Reparation awarded. California Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422. (f) The law does not justify the clas- sification of shippers with regard to their interest in property shipped. California Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422, 426. (g) A railroad or express company has no fair concern with the proper profit of the shipper or his inter- est in the property transported. It may ask that the shipment shall be what it purports to be in character and in weight, for that affects the rate; it may make reasonable rules to protect itself against a multiplicity of claims for loss or damage, for such ultimately affect the rate at which the carrier can afford to carry; it may refuse to accept the ship- ment except upon payment of the charges, but it cannot justify a classifi- cation of freight according to ownership. California Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422, 426. (h) The provisions of the Act prohib- it a classification of traffic upon the basis of the nature or character of consignees or consignors, and while a different rate may be given to the larger shipment, it must be justified upon transportation conditions, and such rate is made as ap- plying to the shipment, not to the ship- per. California Commercial Ass'n v. Wells, Fargo & Co., 14 I. C. C. 422, 428. (i) A carrier may not properly look beyond the transportation to the owner- ship of the shipment as a basis for de- termining the applicability of its rates. Export Shipping Co. v. Wabash R. R. Co., 14 L C. C. 437, 440. §13. Loading and Unloading. See Facilities and Privileges, §10. (a) In these days it is in the interest of both railroad and shipper to secure the heaviest possible loading and thereby the most economical movement of the commodity. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 167. (b) On steel girders shipped from Baltimore to points in North Carolina and South Carolina, charges were as- sessed in accordance with Rule 26-B of the Southern Classification, which pro- vided that articles too long to be loaded in a 36-ft. box car, through a side door of the ordinary size, should be charged for at the actual weight and class rate for each article. Part of the girders were put through windows in a box car, and some shorter ones were put on flat cars. Complainant attacked the reason- ableness of the rule. The revenue re- ceived under the rule on each of the shipments was $31.20. The same com- modity in carload quantities between the same points would yield $84. HELD, the car revenue is an important element in determining the reasoiiableness of a rate. Here, the girders could not be reason- ably put in box cars. Rule, as later amended, not limiting the size of the car to 36-ft., held reasonable. Reparation denied. Merchants & Mfrs. Ass'n v. A. C. L. R. R. Co., 22 L C. C. 467. (c) Complainant attacked defendant's practice of requiring perishable produce to move from point of origin at "ship- per's load and count." HELD, perishable articles such as complainant shipped must be handled by the carrier with all nossible dispatch in order to be proper- ly marketed. To require the carrier in a traffic of this description to count the packages tendered for transportation would in many instances retard the ship- 146 Classification, §13 (d)— §14 (a) ment, and impose an additional burden upon already overburdened station agents without resulting in a compensat- ing advantage to the shipper. Where the shipments are in straight or mixed carloads which constitute a large major- ity of complainant's shipments, the cars are sealed at points of origin, and should go to destination with seals unbroken. Upon the record the Co-mmission cannot say this practice is unreasonable, or that it results in defeating the published rates. Ponchatoula Farmers' Ass'n v. I. C. R. R. Co., 19 I. C. C. 513, 521. (d) A rule is not unreasonable which compels shippers to count packages of perishable freight. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 521. (e) In a specific complaint for repa- ration against only the carriers involved in the transportation, the Commission cannot order a change of rules in the Western Classification respecting charges on articles too large to be loaded in box cars, and will only enter an order award- ing reparation, and requiring defendants to desist from assessing the charge com- plained of. Brunswick-Balke-Collender Co. V. C. M. & St. P. Ry. Co., 18 I. C. C. 165, 166. (f) It is impracticable in shipping cans of milk from different destinations to require an exact number of cans to be placed upon a car short of the absolute limit of the capacity, and while a num- ber of cans may be specified as an ap- proximate load for the purpose of apply- ing, a certain rate to that number, pro- vision, however, must be made for a variable number. Hood & Sons v. Del. & Hud. Co., 17 I. C. C. 15, 19. (g) It is in the interest of economical transportation that cars containing light and bulky articles should be loaded as heavily as possible, and it is equally plain that a carrier can afford, to an extent, to decrease its rates in proportion as the loading increases. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 75. (h) The Oflicial Classification pro- vided that articles too long to be loaded in a 36-ft. box car through the side door should be charged at not less than for 4,000 lbs. at first-class rates. Western and Southern Classifications permitted loading through end doors and the as- sessment of charges on actual weight. On a less-than-carload shipment of 900 lbs. of ladders the Official Classification rule made rates that were prohibitive and were many times higher than would result under Southern and Western Clas- sifications. The permitting of loading through end doors and the assessing of rates at actual weight resulted in dis-- crimination on account of non-availabili- ty of end-door cars, and the impossibility of loading through end doors under cer- tain circumstances. HELD, the Official Classification rule wa& unreasonable in that it restricted the free movement of traffic, and the minimum should be fixed at 1,800 lbs. to meet the requirements of the usual less-than-carload shipments of ladders. A rate or rule cannot be main- tained for the purpose of restricting the movement of a certain class of traffic because it is unattractive to carriers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 L C. C. 370, 373. (i) Rules or regulations prescribing who shall load and unload cars of freight are rules or regulations affecting rates, and are therefore subject to the control of the Commission under section 15 of the Act. Wholesale Fruit & Produce Ass'n V. A. T. & S. F. Ry. Co., 14 I. C. C 410. (j) Loading by the consignor is a long-recognized rule of carload trans- portation. National Wholesale Lumber Co. V. A. C. L. R. R. Co., 14 1. C. C. 154, 160. (k) It cannot be stated as a matter of law that it is the absolute duty of car- riers to unload carloads of package freight, nor that this duty rests upon the shipper, as there is no hard and fast rule of law upon the subject. It is rather a question with respect to each commodity of what, under the circum- stances, is just and reasonable, and per- haps also what has been the practice") Wholesale Fruit & Produce Ass'n v. A. T. & S. F. Ry. Co., 14 I. C. C. 410, 416. (1) Reparation awarded because of exaction of unreasonable charge on an article too long to be loaded in a standard 36-foot box car through the side door thereof. Brunswick-Balke-Collen- der Co. V. G. T. W. Ry. Co., Unrep. Op. 334. §14. Marking and Addressing. See Evidence, §12 (30), (a); Repara- tion, §2 (jj). (a) A commodity rate on cotton piece goods was applicable only when a cer- tificate signed by the shipper was sten- CLASSIFICATION, §14 (b)— (g) 147 ciled on the packages to the effect that the packages contained "only cotton piece goods as per commodity descrip- tion." A shipment of cotton duck enti- tled to the commodity rate was made in packages which were not so marked, but which were examined by the carrier afld found to contain only goods entitled to the commodity rate. On account of non- compliance with the rule the shipment was charged the higher first class rate. HELD, reasonable and pertinent rules are as essentially a part of the tariff as the rates which are governed or limited by their pplication. The rule described was an unjust and unreasonable require- ment, and the charges assessed were un- reasonable to the extent they exceeded the commodity rate. Reparation awarded. Colorado Tent & Awning Co. v. B. & M. R. R., 21 I. C. C. 565, 566. (b) All questions as to marking pack- ages ought to be settled before the car- rier accepts the -goods, reasonable rules as to marking and packing being proper, C. H. Algert Co. v. D. & R. G. R. R. Co.. 20 I. C. C. 93, 94. (c) Complainant shipped from Farm- ington, N. M., to Chicago, three less-than- carload shipments of goat and sheep skins consigned to "Diamond A (letter A surrounded by a rectangle), Chicago, 111. Notify John Miller & Co.. Chicago, 111." The Western Classification at the time of shipment contained a rule pro- viding that less-than-carload shipments consisting of separate packages should be rated one class higher when each bundle, package or piece was not plainly and indelibly marked with the name of consignee and the name of the station, town or city and the state to which des- tined. HELD, the Commission can find no lawful authority for a tariff provision the effect of which is to establish two rates for the same transportation service and the same liability in connection therewith. The higher rate of defend- ants on packages not properly marked was in the nature of a penalty, and would result in discrimination, in that the higher rate would be applied in some cases and the lower in others, due to the fact that there could be no uniformity in the determination by the various agents of the question of fact whether or not particular packages were properly marked. Reparation awarded. C. H. Al- gert Co. V. D. & R. G. R. R. Co., 20 I. C. C. 93, 94. . (d) Complainant had shipped to it cotton fabrics from Memphis, Tenn., to Junction City, Ark., under a rate of $1.02 per 100 lbs. A tariff in effect provided for a commodity rate of 58c per 100 lbs. on cotton factory products when specific names of articles are plainly marked on packages and stated in shipping receipt of the bill of lading (marking packages as containing "cotton factory products" not sufllcient). This commodity -rate, however, was intended only to apply to coarser and cheaper cotton factory prod- ucts. HELD, the requirement that the package should show on the outside the specific contents, by naming the article under the general designation named in the tariff, was proper for the protection of the carrier, and was not unreasonable. Complaint dismissed. Muse Bros. Co. v. C. R. I. & P. Ry. Co., 20 I. C. C. 235. (e) A rule is neither unreasonable nor discriminatory which requires low- priced cotton factory products to be plainly marked on outside of package and stated in bill of lading in order to secure lower rate dependent upon value. Muse Bros. Co. v. C. R. I. & P. Ry. Co., 20 I. C. C. 235, 236. (f) On two bundles of axles and four bundles of vehicle wheels, less-than-car- loads, on which ordinary durable tags were used to indicate the name of the consignee and the point of destination, defendants assessed charges of li/^ times the first class rate, whereas the first class rate would have been applicable if the shipment had been marked as re- quired by defendants' tariffs, that pasted labels or securely fastened cloth-lined, metal, or leather tags must be used, or the freight plainly and indelibly marked. Subsequent to the shipment defendants amended the tariff so as to permit the use of the tags employed by complain- ant. HELD, the tariff regulations in force at time of shipment were unreason- able. Reparation awarded. Racine-Satt- ley Co. V. C. M. & St. P. Ry. Co., 18 I. C. C. 142. (g) Cases of eggs, consigned to the Henningsen Produce Company, Butte, Mont., were marked "H. Prod. Co. Butte, Montana." Defendants' rule provided that each bundle or piece must be plainly and indelibly marked, showing the name of the consignee, the station, town or city, and the state, and that if not so marked the shipment should take a rate one class higher than the published rate. Subsequent to the shipment the rule was 148 CLASSIFICATION, §14 (h)— §15 (b) modified and provided that unless pack- ages were plainly and indelibly marked so as to show the name of the consignee and the details of destination, they would not be received for transportation. HELD, it is the undoubted right of a carrier to decline to receive for trans portation any merchandise not plainly marked, but the rule under which the shipments moved was of doubtful validi- ty; the rule as modified was a proper one; and that even under the rule in effect at the time of shipments the mark- ing in question was sufficient. Repara- tion awarded. Ellsworth Produce Co, v. U. P. R. R. Co., 17 L C. C. 182, 183. (h) Reparation ordered for an excess charge made because of unreasonable requirements as to marking shipments. Kessler & Co. v. So. Ry. Co., Unrep. Op. 12. (i) The rule that higher rate should be assessed when less-than-carload ship- ments consisting of separate packages are not plainly and indelibly marked with the name of the consignee, etc., found unreasonable and reparation awarded. Algert Co. v. C. B. & Q. R. R. Co., Unrep, Op. 379. §15. Minimum Charges. See Interstate Commerce Commis- sion, §9 (aa). (a) The Western Classification rule providing for a minimum charge on 5,000 lbs. at the first class rate upon an article too large to be loaded through the side door, or too long to be loaded through the end window of a 36-foot box or stock car, is unreasonable, and unjustly dis- criminatory. A rule prescribed similar (except as to minimum weight) to that in effect in Official Classification terri- tory providing that when articles are loaded on open cars on account of being too large or too long to be loaded through the side door of a closed car they shall be charged a minimum of 5,000 lbs, at the first-class rate. Brunswick-Balke- Collender Co. v. A. T. & S. F. Ry. Co., 23 L C. C. 395. (aa) Complainant challenged the rea- sonableness of Rule 15 of the Official Classification, which provided that "no single shipment or small lot of freight of one class will be taken at less than 100 lbs. at first-class rate; and in no case will the charge for a single con- signment be less than 25c." Issue arose upon the shipment of canned okra from New Orleans, La., to Pittsburgh, Pa., shipment weighing 45 lbs. The defend- ant's tariff named a through rate of 60c on canned goods in less than car- loads. Under the authority of the rule the charge was increased to $1.10. HELD, that as the record did not afford an adequate basis upon which to deal with the matter as one of classification, and there was no evidence as to the inherent reasonableness of the rate charged, complaint should be dismissed. Kleibacker v. L. & N, R. R. Co., 22 I. C. C. 420. (b) Complainant shipped iron bridge material, Clinton, la., to St. Marys, la., at a rate of 56.5c under rule 17-A of Western Classification that shipments loaded on open cars are subject to a min- imum charge equal to that for 5,000 lbs. at first class rate for each car used. Complainant contended that fourth class rates should have been assessed upon actual weight, upon the theory that the first class rate exacted applies in case the articles are too large to be loaded through the side door of the 36-foot box car or too long to be loaded through the end window thereof. The shipment could have been loaded into the side door of a 40-foot car or the end window of a 36-foot car, had the shipments been de- livered to defendants for loading. De- fendant presented its daily order book of its local agent at Clinton which showed complainant had ordered a 34-foot flat car. Complainant presented affidavits by its secretary that he believed he did not order a flat car and that to the best of his knowledge and belief neither did any other employe or officer of complainant. It did not appear it was his duty to do this or that he customarily had knowl- edge of such orders when made. The witness for complainant was not one of its employes and had only hearsay knov.iedge of the facts. HELD, the testi- mony of the secretary was not of much value as evidence of what was actually done, and the hearsay evidence of its only witness unpersuasive, approving Lambros v. C. M. & St. P. Ry. Co. un- reported opinion No, 315; that on the evidence it stands admitted complainant ordered a flat car and considering the equipment and the route traversed, 305 miles, the charge was not in itself un- reasonable. Clinton Bridge & Iron Works V. C. B. & Q. R. R. Co., 20 I. C. C. 416. CLASSIFICATION, §15 (c) — (g) 149 (c) Where the tariff provides that (luring certain seasons of the year re- frigerator cars will not be furnished individual shippers unless loaded to 10,000 lbs. minimum, and contains anoth- er rule that an unloading charge will be assessed against separate shippers using a car for a consolidated shipment, it is unreasonable to assess an unloading charge against that shipper who orders a car and loads it to the minimum, even though other shippers subsequently from the same shipping point also load into the car which then moves as a consoli- dated shipment. Davies v. I. C. R R. Co., 19, I. C. C. 3. (d) On a less-than-carload shipment consisting of two pieces of smokestack, each piece 25 ft. long and 22 in. in di- ameter, transported from Chattanooga, Tenn., to Huntsville, Ala., charges were assessed upon the basis of 4,000 lbs. weight, at a 44c rate, the actual weight of shipment being 1,016 lbs. Defendant's rule provided that articles too long or too bulky to be loaded in a 36-foot box car through a side door of the ordinary size should be charged at the actual weight and class rate for each article except that the minimum should be 4,000 lbs. at the first class rate. The shipment in question could not have been loaded through the side door of a box car less than about 50 feet in length, and was in fact loaded upon an open car. HELD, the rule was unreasonable inasmuch as articles too long to be loaded in a 36-foot box car might in fact be loaded into a box car of greater length than 36 feet, thereby excluding the necessity of using an open car; that the Official Classifica- tion rule providing for the assessment of extra charges only when the shipment is necessarily transported on an open car is the more reasonable rule; and that defendant should change its rule so as to make it apply when the articles are too long to be loaded in a box car of not less than 40 feet 6 inches. Reparation denied, since the shipment in question was too long to be loaded through the side door of an ordinary or available box car. Jones v. Southern Ry./Co., 18 I. C. C. 150, 153. (e) On crates of partitions, a crated refrigerator, and two boxes of glass from Chicago to Chisholm, Minn., and return, the actual weight of shipment being 1,986 lbs., charges were assessed on the minimum of 5,000 lbs. in accordance with Rule 17 of Western Classification which provided that an article too large to be loaded through the side door of a 36-foot box car or stock car or too long to be loaded through the end window should be charged the actual weight and class rate except that the minimum should be for 5,000 lbs. first class rate. The ship- ment in question could not be loaded into a 36-foot box car but was loaded into a 41-foot car. HELD, following Bennett v. M. St. P. & S. Ste. M. Ry. Co., 15 I. C C. 301, the said rule was unreasonable. Reparation awarded on the basis of ac- tual weight. On shipments of partitions, marble slabs, and plate glass from Chi- cago to Marquette, Mich., the same hold- ing was made. Brunswick-Balke-Collen- der Co. v. C, M. & St. P. Ry. Co., 18 I. C. C. 165, 166. (f) A signboard shipped from Chicago to Wabash, Ind., was too large to go in the side door of a 36-foot car but was in fact loaded in a 40-foot box car. Under Rule 7-C, Official Classification, charges were exacted on a basis of a minimum of 4,000 lbs. at first class rates, the actual weight being 400 lbs. Later, the rule was amended applying said minimum and rate only where the article was in fact loaded on a flat car or a gondola car on account of being too long to be loaded in a box car. HELD, the original rule was unreasonable. Reparation awarded on the basis of actual weight. Knox V. Wabash R. R. Co., 18 I. C. C. 185, 186. (g) On 6 pieces of structural steel, 41 feet 3^^ inches long, weighing 1,301 lbs., from Chicago to Houston, Tex., complain- ant was -charged the first class rate of $1.67 per 100 lbs. on a minimum of 5,000 lbs., under a rule applying this rate and minimum on articles too large to be loaded through the side door of a 36-foot car, or too long to be loaded through the end window. The articles were in fact too large and too long for a 36-foot car but were loaded in a 45-foot furniture car. HELD, the rule attacked was unreason- able, and defendants should desist from the maintenance of the same, but in the future might provide that when articles are actually carried upon open cars, be- cause too bulky or too long to be loaded through the side door of a box car not less than 40 ft. 6 inches in length, the first class rate upon a minimum of 4,000 lbs. might be imposed. Reparation awarded on the actual weight. Houston Structural Steel Co. v. Wabash R. R. Co., 18 1. C. C. 208, 209. 150 CLASSIFICATION, §15 (h)— §16 (g) (h) Defendant's less-than-carload rate on gunpowder in quantities of less than 10,000 pounds was twice the first class rate, while on shipments exceeding 10,000 pounds the single first class rate applied. HELD, that a charge on com- plainant's shipments of less than 6,000 lbs. that exceeds the charges assessable on a less-than-carload shipment of the same commodity of 10,000 lbs. is unrea- sonable. Aetna Powder Co. v. C. M. & St. P. Ry. Co., 17 L C. C. 165. (i) Rule providing for the assess- ment of freight charges on the basis of a minimum weight of 5,000 lbs. on packages of plate glass loaded into box cars found unreasonable. Reparation awarded. Bamble Bros. v. C. M. & St. P. Ry. Co., Unrep. Op. 173. §16. Packing. See Reasonableness of Rates, §2 (a) Charges may properly be made somewhat higher for transportation of showcases in crates than in boxes. Wa- dell Show Case & Cabinet Co. v. M. C. R. R. Co., 22 L C. C. 106, 107. (b) The Official Express Classifica- tion contains certain specifications con- cerning shipments of liquor and provides that they shall be packed into certain kinds of corrugated paper cartons. HELD, that on account of the percentage of breakage in the transportation of liq- uor the present paper cartons in use are altogether too light and have placed an unnecessary burden upon both ship- pers and express companies, and that the proposed new rule be adopted as rea- sonable. In Re Advances in Rates for Transportation of Liquor, 21 L C. C. 199. (c) Complainant attacked the rate of 44c per 100 lbs. on manila wrapping pa- per, C. L. Bellows Falls, Vt., to Chatta- nooga, Tenn. The tariff provided that paper folded flat could take the sixth class rate of 36c. The paper shipped was flat but not folded. HELD, that no dis- tinction could properly be made between wrapping paper shipped flat and wrapping paper when folded; that the shipment in question consisted of a paper known as railroad manila which is used for the manufacture of bills of lading, waybills and similar articles, and was entitled to the sixth class rate. Reparation award- ed. Robertson Paper Co. v. B. & M. R. R., 21 L C. C. 254. (d) Complainant shipped one two- horse freight wagon without sides, hav- ing in their place fixed stakes about 3 feet 6 inches high attached permanently to the body, and which, including the seat, together with the pole, was packed in one crate, the gears packed in another crate and the wheels shipped loose un- crated, under Western Classification, New Orleans, La., to San Antonio, Tex., rate assessed 3i/^ times first class. The classification provided that a wagon boxed or crated, except as to shafts or poles, is subject to a rate of one and one- half times first class, while a wagon with fixed stakes or standing tops crated takes double first class, but in the case of a wagon not crated, three and one-half times first class. This latter rate was assessed evidently because the wheels were not crated. HELD, the rate was unreasonable in so far as it exceeded double first class. Reparation awarded. Oster Bros. v. M. L. & T. R. R. & S. S. Co., 21 1. C. C. 511, 512. (e) Complainant had shipped from Brackenridge, Pa., to Chattanooga, Tenn., a less-than-carload shipment of loose steel sheets, less than one-sixteenth of an inch in thickness, under the joint sec- ond class rate of $1 per 100 lbs. Had the sheets been shipped in crates or bundles the joint sixth class rate of 42c per 100 lbs. would have applied. The edges of these sheets are very sharp and the handling thereof is difficult and dan- gerous, and only light articles may be placed on top of them, thus curtailing the possible loading space. HELD, these facts justify a higher charge on th^ sheets when shipped loose than when shipped in bundles or crates, but that the difference of four classes between the ratings on sheet steel when loose and when in bundles is excessive. The rate was unreasonable so far as it exceeded the joint fourth class rate of 65c; pre- scribed for the future. Reparation awarded. Southern Queen Range Co. v. C. N. O. & T. P. Ry. Co., 21 1. C. C. 608, 609. (f) It is clearly within the power and authority of carriers to establish reason- able and just regulations requiring prop- er packing and marking of consignment, before acceptance by them for trans- portation, which will amply protect them from negligence by shippers in this re- spect. C. H. Algert Co. v. D. & R. G. R. R. Co., 20 L C. C. 93, 94. (g) A carrier may refuse to accept shipments in improper containers; it is reasonable to discourage unsafe shipping CLASSIFICATION, §16 (h)— §17 (b) ISI methods and unsafe cases. Millinery Jobbers' Ass'n v. American Express Co., 20 I. C. C. 498, 502. (h) Defendant established certain classification regulations concerning the carriage of millinery when shipped in pulp Or corrugated paper cartons ex- ceeding certain dimensions, or when shipped in strawboard or pasteboard boxes and enclosed in crates exceeding certain dimensions. Shipments in the ordinary pasteboard and strawboard boxes are peculiarly liable to damage in transit. The testimony offered by defend- ants indicated that the risk involved in the carriage of millinery traffic relates chiefiy to shipments in pasteboard or strawboard boxes. The Commission finds, however, that pulp cartons or co-r- rugated paper are excellent containers for ordinary shipments of merchandise without the protection of a crate. HELD, that as damage claims increase the ex- pense of carriage and thus affect the rates, it is reasonable in the interests of the general shipping public, as well as in the interest of the carriers themselves, to discourage by reasonable rules in the classification the use of shipping methods and shipping cases that are lacking in safety; that, therefore, defendants' rules applying nainimum weights to millinery shipments in pasteboard and strawboard boxes are reasonable; but that their rules requiring corrugated paper or pulp cartons to be crated is unreasonable; and that shipments inclosed in such a container should move under actual weight. Millinery Jobbers' Ass'n v. Am- erican Express Co., 20 I. C. C. 498. (i) Form in which goods are pre- sented for shipment must be considered in framing classifications and rates. Ford Co. V. C. M. R. R. Co., 19 I. C. C. 507, 509. (j) Classification is sometimes made with respect to the manner of packing of articles. Metropolitan Paving Brick Co. V. A. A. R. R. Co., 17 I. C. C. 197, 201. (k) There is no good reason why package freight, which is loaded and un- loaded upon the team track or at private siding, should not be handled into and out of the car by the shipper in the same manner that bulk freight is. Wholesale Fruit & Produce Ass'n v. A. T. & S. F. Ry. Co., 17 I. C. C. 596, 600. (1) Charges assessed for the trans- portation of a soda water fountain based upon a rate applicable to the shipment when crated, instead of basing rate upon shipment when boxed. Overcharge to be refunded. Imperial Candy Co. v. C. B. & Q. R. R. Co., Unrep. Op. 412. (m) There is no apparent reason why the same rating on pine cones should not be applied when shipped in barrels and sacks. Hill Nursery Co. v. M. C. R. R. Co., Unrep. Op. 524. (n) Lower rate applied to baskets nested with handles removed by rea- son of space saved. Wells-Higman Co. V. T. & P. Ry. Co.," Unrep. Op. 527. (o) Rule of bundling and tagging empty malt sacks in order to obtain lower rates not found unreasonable. Kruth & Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 539. IV. COMPARATIVE RATINGS. See Comparative Rates. A. Analogous Articles. See Commodity Rates, II; Courts, §11 (t); Reasonableness of Rates, §2 (nnn). §17. In General. See Reasonableness of Rates, §47 (g), §50 (a), §105. (a) Articles which are food com- pounds should not be classified higher than other articles with which they com- pete, and for which they may be substi- tuted in use, regardless of the value of the base from which such food com- pounds are manufactured. Nucoa But- ter Co. v. E. R. R. Co., 20 I. C. C. 174. (b) Complainants shipped wooden tank material, Louisville, Ky., to Elkhorn, W. Va., and also carloads to Potsdam, N. Y. Rate collected was on the basis of fifth class. Reparation asked on the basis of the sixth class rates contempo- raneously in effect. Complainant com- pared commodity shipped with others in sixth class, such as lumber in the rough, whisky barrel staves, and beer kegs. Wooden tank material consists of staves planed and grooved with neces- sary iron hoops so that the only labor necessary to erect the tank was to fit the staves together and attach the iron bands. HELD, so long as the thousands of articles offered for transportation are divided into a comparatively small num- ber of classes for rate-making purposes, it is obvious that minute variations in value of different articles or dissimilar values of the same article cannot be pre- cisely reflected in the classification. In 152 CLASSIFICATION, §17 (c) — (h) the absence of evidence that the rate resulting from the classification is un- reasonable, or otherwise unlawful, it must fairly appear that a particular ar- ticle is ^ot rated with other articles, similar in value, weight, and other es- sential transportation qualities before the Commission will require a change of classification. Upon the facts presented the application of fifth class rates to wooden tank material in Official Classi- fication territory is not unreasonable. Caldwell Co. v. C. I. & L. Ry. Co., 20 I. C. C. 412, 415. (c) If a simple commodity is given a trade name which does not disclose its real nature, and is shipped and sold in connection with other compounds in- tended for and put to the same uses, it should be rated the same as those other compounds, but in order to be entitled to a lower rating it should be shipped openly as the simple commodity which it in fact is. Ford Co. v. M. C. R. R. Co., 19 I. C. C. 507, 510. (d) In making a classification, bulk, value, liability to loss and damage, and similar elements affecting the desirability of the trafllc should be considered, and articles which are analogous in charac- ter should ordinarily be placed in the same class. Metropolitan Paving Brick Co. V. A. A. R. R. Co., 17 I. C. C. 197, 203. (e) Competition between the different grades of brick is of such a character that no scheme of classification is pos sible which will not permit, if it does not encourage, the misbilling of the product in order to secure lower rates Under these circumstances, as well as the other facts of record, fire, building, and paving brick should be similarly classi fied. Metropolitan Paving Brick Co. v A. A. R. R. Co., 17 I. C. C. 197, 204. (f) Complainants were manufacturers- of cheap cotton garments like overalls, jackets, shirts of low grades, play suits for children, etc., such garments being made from denims and ginghams. The garments were shipped in boxes and bales weighing 17 lbs. per cubic foot. The raw material was shipped in like manner and weighed 19 lbs. per cubic foot. The value of the raw material was $27.00 per hundred lbs.; of the manu- factured product, 75 per cent more. The garments were classified as first class. Cotton pie<;e goods were rated in Official Classification as 15 per cent less than second class; in Western Classification, as first class, but generally moved un- der commodity rates equivalent to third class; in Southern Classification they were rated from first to fourth class. Woolen cloths and woolen garments manu- factured therefrom were rated as first class. The average value of woolen gar- ments is much greater than that of cot- ton garments. On account of their larger bulk, it was conceded, cotton garments should be rated somewhat higher than cotton piece goods. The price of complain- ant's garments ranged from 50c to $2, be- ing designed to be worn by the poorer classes. It appeared that under the classification attacked, the poor laborer was charged the same freight rate upon cheap clothing as his wealthy employer was upon higher priced woolen clothing. To rate complainants' garments second class would involve a general revision of classification on all cotton garments, which were sold at great variations in price and a division of these garments, to enable those producing a low price to be classified as second class, appeared to be impracticable. It appeared im- practicable to assess rates on the basis of value, on account of the practical dif- ficulty experienced by carriers in deter- mining values. It appeared that com- plainants did not need relief in rates in order to meet competitive conditions, and that the only effect of reduction would be to enable complainants to make a larger profit. On the other hand de- fendant carriers had been compelled to rate cotton materials as second class, to meet competitive conditions, and had, therefore, reduced their revenues to a low point. HELD, since complainant did not labor under any form of discrimina- tion which was apparent, and the rates were not so high as to unduly burden the traflac, but it moved with the greatest freedom, and the only result of the ac- tion asked would be to somewhat reduce the rate, the Commission cannot feel justified in changing the classification so as to effect such a reduction in rates. Union Made Garment Mfrs. Assn. v. C. & N. W. Ry. Co., 16 L C. C. 405, 407-409. (g) Rate on windmill towers should not exceed that on windmills. Stover Mfg. Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 114. (h) Rate on empty mineral-water bottles, returned, should not exceed the rate applicable on empty beer bottles, returned. Reparation awarded. Sheboy- CLASSIFICATION, §17 (i)— §18 (2) (a) 153 gaa Mineral Water Co. v. N. P. Ry. Co., Unrep. Op. 116. (i) Rates on gum olibanum from New York City to Minneapolis, Minn., should not exceed that applicable on third-class traffic. Schulz Chemical Co. V. M. & St. L. R. R. Co., Unrep. Op. 137. (j) Rate charged on shipment of tank blocks from Steubenville, O., to I^s Angeles, Cal., found unreasonable and the subsequently established lower rate prescribed for the future. Repara- tion awarded. Quartz Glass & Mfg. Co. V. P. C. C. & St. L. Ry. Co., Unrep. Op. 140. (k) No greater charge should be exacted for the transportation of kraut and kraut brine than is exacted for the carriage of kraut in straight carloads. Reparation awarded. Heinz Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 170. (1) Rate on wild mustard seed should not exceed that in effect on grain and its products. Kulm Mill Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 305. (m) Fibroid hand trucks should take no higher rate than warehouse trucks, n. o. s. Bollman Co. v. B. & O. R. R. Co., Unrep. Op. 318. (n) Glass tobacco jars should not take higher rates than glass jars, n. o. s., in packages. Federal Cigar Co. V. I. T. R. R. Co., Unrep. Op. 322. (o) News printing paper and blank wall paper are not competitive articles, and the existence of a lower rate on the former commodity did not prej- udice complainants in the sale of blank wall paper. Complaint dismissed. St. Regis Paper Co. v. N. Y. C. & H. R. R. R. Co., Unrep. Op. 368. (p) Common cotton towels should take no higher rate than cotton factory products, such as calico, cambric shirt- ing, gingham and ticking. Reparation awarded. Cannon Mfg. Co. v. S. Ry. Co., Unrep. Op. 387. (q) No specific rating on cobalt- nickel hydrate in carloads and less than carloads. Rates applicable to supposed analogous articles assessed. Subse- quently commodity given specific rating lower than that assessed and reparation awarded. Orford Copper Co. v. P. & R. Ry. Co., Unrep. Op. 468. (r) Complainant's contention that the term "laboratory supplies, n. o. s.," should be stricken from the Western Classification not sustained. The classi- fication should, however, be amended so as to show specifically what articles are included thereunder. Heil Chemical Co. V. U. P. R. R. Co., Unrep. Op. 471. (s) Double first-class rate applied under the Western Classification to less- than-carload shipment of autocycle lamps from Chicago, 111., to Denver, Colo., found unreasonable in so far as it ex- ceeded the first-class rate. Reparation awarded. Mead Auto Cycle Co. v. C. B. & Q. R. R. Co., Unrep. Op. 474. (t) There is no apparent reason why the same rating on pine cones should not be applied when shipped in barrels or sacks. Hill Nursery Co. v. M. C. R. R. Co., Unrep. Op. 524. (u) Manheads for use on boilers not entitled to rating applicable to iron manhole covers. Walsh & Weidner Boiler Co. v, P. & R. Ry. Co., Unrep. Op. 560. (v) Near beer is an article that is said to resemble beer, yet contains an averred percentage of alcohol low enough not to come within the prohibition laws. Portner Brewing Co. v. S. Ry. Co., Unrep. Op. 361. 18. Specific Comparisons. See Comparative Rates. §18. (1) Bar and Band Iron. (a) Pieces of new iron ZV2 to 12 inches wide, one-eighth of an inch thick, and 6 to 10 feet long, that could be used in the manufacture of wrought-iron wash- ers, stove scrapers, stove appliances, and novelties, is correctly classified as "bar and band iron" and not as "scraps and pieces of iron and steel which have value for remelting purposes only." American Mfg. Co. V. L. & N. R. R. Co., 21 I. C. C. 483. §18. (2) Cocoa Butter Substitutes. (a) Complainant refines vegetable oil. Its chief products made from crude co- coanut oil are a pure cocoanut oleine, known as Nucoline and a pure cocoanut stearin known as Nucoa butter. The 5lfect of the evidence is clearly to show hat Nucoline is used as a substitute for 'ard. Its price is almost substantially the same. Nucoa butter in value varies 154 CLASSIFICATION, §18 (3) (a)— §18 (6) (a) from 170 to over 200 per cent, the price of cocoanut oil. HELD, that Nucoline and similar products should not be clas- sified higher than lard and lard com- pounds, and that Nucoa butter is correct- ly classified as "cocoa butter substi- tutes," and not entitled to have a lower rating than the cocoa butter with which it competes. Nucoa Butter Co. v. E. R. R. Co., 20 I. C. C. 174. §18. (3) Coffee Percolators. (a) Percolaters manufactured by complainant were coffeepots with the percolator apparatus placed inside, which consisted of the receptacle for the coffee, the glass dome and the tube, and was made of aluminum, with the exception of the glass top. They had the appear- ance of ordinary coffeepots and were used upon the kitchen stove like the everyday coffeepot. The retail price to the consumer was from $3 to $5. The additional cost of applying the percolator apparatus did not exceed 50 cents. Six of them could be packed in a wooden box of from 3 to 4 cubic feet in capacity, and 24,000 lbs. in weight could be loaded in a standard car of 36 feet. The cost and selling price of said percolators did not greatly exceed that of coffeepots of the same material. HELD, the charge of double first class rates on said article was unreasonable and should not exceed the first class merchandise rates under Western Classification in shipments from New Britain, Conn., to Chicago, Omaha, and other western points. Landers, Frary & Clark v. A. T. & S. F. Ry. Co., 17 I. C. C. 511, 512, 513. §18. (4) Earthenware Crucibles. (a) Complainant attacked the classifi- cation of earthenware crucibles under the Official Classification at third class in less than carloads, and fourth class in carloads, as unreasonable. It appeared that this commodity is worth from $3 to $6.50 per 100 lbs. Official Classification places earthenware fiower pots 1. c. 1. at 20 per cent less than third class, but not lower than fourth class, and c. 1. at fifth class. And the same classifica- tion is given to crockery and earthen- ware, not otherwise specified. HELD, that the present classification of earthen- ware crucibles is unjust and unreason- able in so far as it exceeds 20 per cent less than third class, but not less than fourth class 1. c. 1. and fifth class c. 1. Heil Chemical Co. v. Wabash R. R. Co., 21 I. C. C. 518. §18. (5) Iron and Steel Articles. (a) The petition attacked a rate of 45c per 100 lbs. on a carload of sheet iron shipped from Youngstown, O., to Monroe, N. C, and a rate of 48c per 100 lbs. on less-than-carload lots of iron wire fenc- ing shipped from Monessen, Pa., to Lawrenceville, Va. It was contended that the Southern Classification ratings should apply to the shipments in ques- tion and that rates on sheet iron in excess of 41c from Youngstown to Mon- roe, and on iron wire fencing in excess of 40c from Monessen to Lawrenceville were unreasonable. It was also con- tended that the rates charged exceeded the commodity rates applicable to iron and steel articles specifically enumerated in defendant's tariff. HELD, the rates charged were not unreasonable, dis- criminatory or prejudicial. Through rates on iron and steel articles have never been based upon the Southern Classification, and there is not sufficient analogy between the specifically enumer- ated iron and steel articles and the articles in complainant's shipments to warrant grouping the latter with the former. Heath Hardware Co. v. Penn. R. R. Co., 22 I. C. C. 223, 225. (b) Ironworking machine parts should take no higher rate than the ironwork- ing machine. Gisholt Machine Co. v. C. C. C. & St. L. Ry. Co., Unrep. Op. 290. §18. (6) Motorcycles. (a) A -rate was assessed on bicycles of one and one-half times first class on a shipment from St. Louis to Denver. Motorcycles took three and one-half times the first-class rate, or $6.47 1/^. Motorcycles occupy, when crated, a space 8 ft. long by 3 ft. high and about 10 in. wide, weigh from 175 to 200 lbs., and are valued at about $150.00. Bicycles occupy about the same space except as to width, weigh from 40 to 50 lbs., and are worth about $30.00. Motorcycles load much more heavily than bicycles and are more desirable freight. HELD, the rate on motorcycles was excessive and should not exceed that imposed upon bicycles, one and one-half times first class in less than carloads, and first class in carloads. Merchants' Traffic Ass'n v. A. T. & S. F. Ry. Co., 13 1. C. C. 283, 285. CLASSIFICATION, §18 (7) (a)— §18 (11) (a) 155 18. (7) Multigraphs. (a) The multigraph is a miniature rinting press, printing from a cylinder nd not from a bed. It is ordinarily perated by hand, but may be run by lectric motor. It is used in connection ^ith any business in striking off compara- ively small numbers of cards, circular itters, etc. It sells for $250.00 to the iistomer and $150.00 to the dealer from le manufacturer. The outside measure- lents of the shipping package contain bout 314 cubic feet, and the weight is )0 lbs. When properly packed it is ot liable to damage. It was classed ith the mimeograph, and the neostyle, 3 double first class. HELD, the rate as unreasonable. It should be classed ot with printing presses, but with '■pewriters, cash registers and adding lachines, and with them be assessed le and one-half times first class in the /"estern Classification. Forest City reight Bureau v. A. T. & S. F. Ry. Co., I L C. C. 295, 297. 18. (8) Picture Postcards. (a) A shipment of paper postcards on hich are printed colored views repro- uced from photographs, takes the tar- f reading, "holiday cards (including hristmas and Easter cards) and other irds of similar character, also art cal- ndars and valentines boxed," and not le tariff reading, "paper, photographic irds and cardboards," under testimony lowing that the term "photographio ird" is employed to describe pasteboard ird mounts to which photographs are to B attached, and that it does not include hotographs. Crocker Co. v. A. T. & S. . Ry. Co., 14 L C. C. 588, 589. 18. (9) Plate Glass. (a) Complainants, situated at Mem- lis, attacked the rate on plate glass C. L. : 45c from St. Louis, Mo., and neigh- H'ing points and the rate on rough bbed glass C. L. of 30c. In the South- •n Classification plate glass C. L. is ited third class, while rough ribbed ass is rated fifth class. In the West- •n Classification and in the Official lassification plate glass is rated fourth ass C. L. and rough and ribbed glass :th class. HELD, the class rates in the jveral territories are assumed to be Ijusted according to the transportation )nditions of the country through which le roads operate, the general scale of ass rates in Southern and Western Classification territories being relatively higher than Official Classification terri- tory; that rates are relatively higher in Southern than in Ofl!icial Classification territory and, assuming that the fifth class rate affords defendants fair re- muneration for the carriage of window glass and similar kinds of glass, there is no such difference in transportation conditions as would warrant a rate 50 per cent higher on plate glass. The lat- ter commodity loads heavily, the average weight of complainant's shipments be- ing 54,000 lbs. It is seldom damaged in transit and it is therefore found that defendants' rates for the carriage of plate glass C. L. from St. Louis, Valley Park and Crystal City, Mo., to Mem- phis, Tenn., are unreasonable so far as they exceed defendants' fourth class rate. Reparation denied. Memphis Freight Bureau v. St. L. & S. F. R. R. Co., 21 L C. C. 113. §18. (10) Triplex Cloth. (a) Complainant shipped a carload of triplex cloth. Ft. Wayne, Ind., to Beloit, Wis., billed as "cotton piece goods," under the through first class rate of 76c per 100 lbs. applicable under the Official Classification on dry goods n. o. s. Triplex cloth is frequently made up of woolen or silk material, or partly of wool and partly of cotton. This partic- ular cloth consisted of a fabric made up of a layer of cotton goods and a layer of cotton shoddy lining held firmly to- gether by means of an intermediate layer of reclaimed rubber. The through rate exacted was greater than the sum of the intermediate rates. HELD, that triplex cloth, generally speaking, need not take the same rate as applied on cotton piece goods, but may properly take the rate applied to other dry goods n. o. s. Reparation awarded to the ex- tent that the charges exacted exceeded the combination of the intermediate rates. The Commission again suggests that the through class rates of the de- fendant in this general territory stand in need of revision, because in many instances they exceed the Chicago com- bination. Rosenblatt & Sons v. C. & N. W. Ry. Co., 20 L C. C. 447. §18. (11) Wire Coat Hooks. (a) Complainant demanded that wire coat hooks packed in cases when shipped in less than carload lots should take fourth class rates instead of being in- 156 CLASSIFICATION, §19— COMMERCE COURT, §2 (b) eluded as hardware specialties and rated third class. The hooks were made of wire and were the ordinary wardrobe coat hooks of commerce. Some were unfinished and others received a ja- panned, copper, brass or nickel finish. The wire from which the coat hooks were manufactured took fourth class rates. Cast-iron coat hooks performing the same function as the wire coat hooks were somewhat heavier and took third class rates. Other articles of less value than the wire hooks, such as bush- ing, bungs, cast-iron clamps, iron corners for trunks, stove cover lifters, can open- ers, stove plates, clock weights, etc., took third class rates. HELD, the hooks in question were properly rated third class. Complaint dismissed. Forest City Freight Bureau v. Ann Arbor R. R. Co., 13 L C. C. 118, 121. §19. Evidence and Procedure. See Evidence, §40 (c) ; Overcharges, §5 (d), (e) ; Procedure Before Commission, §13 (a), (e), (p) ; Rea- sonableness of Rates, §16 (q), §33 (a). COMMERCE COURT. I. JURISDICTION. A. Review of Commission's Orders. §1. Car distribution, §2. Denying affirmative relief. §3. Granting affirmative relief. §4. Fixing rates. §5. Reparation orders. §6. Questions of law and fact. IL PROCEDURE. §7. Examination of record. §8. Judicial notice. I. JURISDICTION. A. Review of Commission's Orders. §1. Car Distribution. (a) Defendant L. & N. R. R. Co. owned a short line of railway, known as the Middlesboro R. R., extending from Middlesboro, Ky., some 10 or 11 miles to the coal mines of the petitioners. De- fendant Southern Ry. Co. had the right by contract to use this short line. The defendants published joint rates and through routes from petitioners' mines, over the Middlesboro Ry., to Middles- boro, and thence via the Southern Ry., to points in southeastern territory. The L. & N. R. R. refused to supply cars for the petitioner's coal on the ground that it was merely performing a switch- ing service. The Southern Ry. refused to supply same on the ground that it was not the initial carrier. At the same time defendants supplied cars to other shippers in the same district. HELD, while the Commerce Court had no juris- diction to consider the question of car distribution in advance of some action by the Interstate Commerce Commis- sion, or to determine how many cars the Southern Ry. should furnish or how many the L. & N. R. R. should furnish for the transportation of the coal, the Court did have jurisdiction under the Act that created it and under section 23 of the Act as amended by section 10 of the Act of March 2, 1889, to issue a writ of mandamus commanding defend- ants that, so long as they established and maintained through routes and joint rates to southeastern territory, they should move and transport the coal of the petitioners when tendered in such reasonable quantities as might be deter- mined either by an agreement with the carriers or by the Interstate Commerce Commission. (Archbald and Mack, J. J., dissenting). U. S. v. L. & N. R. R. Co., 195 Fed. 88, 92. §2. Denying Affirmative Relief. (a) Under the Act of June 18, 1910, creating the Commerce Court, such court has jurisdiction only to relieve from affirmative orders of the Commission, and has no authority, where that body has dismissed a complaint attacking the demurrage rules of a carrier, to reverse such decision and grant relief to the complainant shipner. Proctor & Gamble Co. V. U. S., 225 U. S. 282, 292, 32 Sup. Ct. 761, 765, 56 L. ed. 1091, reversing 188 Fed. 221, 226, 227. (b) The petitioner filed a complaint before the Commission attacking that part of the "Uniform Demurrage Code" which permitted railroads to make a de- murrage charge against the private cars of a shipper after they had been deliv- ered to him and were standing on his own private tracks. The Commission considered the complaint on its merits and dismissed it. HELD, the Commerce Court had jurisdiction to entertain a pe- tition of complainant to set aside the order of the Commission, and asking the annulment of the demurrage rule. Proc- tor & Gamble Co. v. U. S., 188 Fed. 221, 226, 227. Reversed 225 U. S. 282, 32 Sup. Ct. 761, 56 L. ed. 1091. COMMERCE COURT, §3 (a)— §5 (b) 15.7 . Granting Affirnnative Relief. (a) Where the Commission orders rriers to desist from according differ- it rates to coal intended fom the use railroads as fuel, than to commercial >al, and the facts, circumstances and mditions upon which it bases its orders e undisputed, and the question involved the construction of sections 2 and 3 of e Act, to determine whether the differ- it charges constitute violations of those ctions, the order is not merely adminis- ative and is open to review by the Dmmerce Court. I. C. C. v. B. & O. R. R. )., 225 U. S. 326, 340, 32 Sup. Ct. 742, 6, 56 L. ed. 1107. (b) The provision of the section of e Act creating the Commerce Court the effect that, in allowing a tempo- ry stay or suspension of an order the Interstate Commerce Commission, e court shall make a specific finding Lsed upon evidence identified by ref- ence thereto, applies only to a tem- >rary restraining order staying the der of the Commission not more than days, and in the granting of a pre- ninary injunction pendente lite, it is )t necessary that the court state the idence on which it bases its order. . S. V. B. & O. R. R. Co., 225 U. S. 6, 56 L. ed. 1100, 32 Sup. Ct. 817, 820. (c) Under section 3 of the Act creat- g the Commerce Court, such court has )wer to allow a preliminary injunction jainst an order of the Commission for- dding carriers to pay certain alleged lowances to sugar refiners for floatage, ;hterage and terminal services. U. S. B. & O. R. R. Co., 225 U. S. 306, 320, : Sup. Ct. 817, 819, 56 L. ed. 1100. k Fixing Rates. (a) The Commerce Court cannot dis- irb the order of the Commission on the leory that it fixed rates so high as to 5 violative of the 5th amendment to le Constitution, unless it shall clearly 3pear that the constitutional rights of le shippers were invaded thereby. The sing of a schedule of rates by the Com- ission is a legislative act. Hooker v. C. C, 188 Fed. 242, 252; Eagle White ead Co. v. I. C. C, 188 Fed. 256. (b) All rates established in accord- ice with law are presumed to be ist and reasonable. It is for this reason lat the rates for the transportation of eight of other carriers in the same terri- )ry may be looked into as evidence of what should be a just and reasonable rate, providing conditions are similar. The Commerce Court, not being vested with the power to fix rates, cannot say, beyond question, that such elements, taken into consideration by the Commis- sion in fixing rates, are improper for the Commission to consider, (Archbald and Mack, JJ.. dissenting.) Hooker v. I. C. C, 188 Fed. 242, 252; Eagle White Lead Co. v. I. C. C, 188 Fed. 256. (c)' Where the Commission has en- tered an order to the effect that carriers shall not establish class rates exceeding certain amounts and a shipper brings the matter before the Commerce Court, the court in case it finds the maximum rates prescribed and adopted by the car- riers to be confiscatory, can only set aside the order of the Commission thereby restoring the rates in effect be- fore the entering of the order by the Commission. The court cannot order the establishment of lower rates. Hooker v. I. C. C, 188 Fed. 242, 247; Eagle White Lead Co. v. I. C. C, 188 Fed. 256. (d) The power to establish reason- able and just rates for the transportation of freight by a common carrier is vested by law in the Commission, and no part thereof is vested in the Commerce Court, and that court may not disturb an order of the Commission fixing rates unless it can be clearly found that it conflicts with the provisions of the 5th amend- ment to the Constitution of the United States, provided the power conferred has been regularly exercised. Hooker v. I. C. C, 188 Fed. 242, 246; Eagle White Lead Co. v. I. C. C, 188 Fed. 256. §5. Reparation Orders. (a) The Commerce Court, having jurisdiction to set aside an order of the Commission awarding reparation, has also jurisdiction to set aside an order denying reparation. Arkansas Fertilizer Co. V. U. S., 193 Fed. 667, 669. (b) The Commerce Court has juris- diction to enjoin, annul or suspend an or- der against a carrier to pay reparation, entered by the Commission in a case where, prior to the passage of the Act creating such court, the carrier might have repaired to the Circuit Court for relief, since the clause in such Act with- holding power from the Commerce Court to review orders for the payment of money applies only to cases where the right to a jury trial cannot be denied. Southern Ry. Co. v. U. S., 193 Fed. 664, 158 COMMERCE COURT, §6 (a)— §8 (a) 666; Arkansas Fertilizer Co. v. U. S., 193 Fed. 667, 669. §6. Questions of Law and Fact. See Interstate Commerce Commis- sion, §3 (d). (a) Whether or not there Is at the close of a hearing as to rates before the Commission any evidence to sustain a finding of fact by it as to the reason- ableness of the rates! in question, is a question of law, which the Commerce Court has jurisdiction to pass upon. A. C. L. R. R. Co. V. I. C. C, 194 Fed. 449, 458. (b) The word "discretion," used in section 3 of the Act creating the Com- merce Court means a legal discretion, discretion controlled and limited by sound principles of law applied to the facts in each particular case. Nashville Grain Exch. v. U. S., 191 Fed. 37, 39. (c) An order of the Commission that the charge of $2.50 per car exacted by the petitioning railroads for delivering and receiving carload freight to ^^nd from in- dustries located upon spurs and side- tracks within their respective limits at Los Angeles, Cal., when such carload freight is moving in interstate commerce incidentally to a system-line haul, is in violation of the Act, and is a conclusion of law open to inquiry in the Commerce Court. A. T. & S. F. Ry. Co. v. I. C. C, 188 Fed. 229, 237; S. P. Co. v. I. C. C, 188 Fed. 241. (d) In 18 I. C. C. 310, the Commission prohibited a charge of $2.50 for switch- ing cars to industries located on indus trial tracks and based its decisions upon two findings: first, that the industrial track upon which the service was ren- dered was a terminal facility of the rail- road and not a plant facility of the in- dustry to which it led; and, second, that the service for which the charge was made was the same service as that which was performed by the carrier in deliver- ing freight at its depot or team tracks. Defendant in that suit filed a petition before the Commerce Court to enjoin said order. HELD, the finding of +^« Commission that the industrial track service was the same as the team track or depot service was not one precluding the Commerce Court from coming to a different conclusion. In cases where there is substantial conflict in the evi- dence or testimony upon which a finding of the Commission is based, the Comerce Court is bound by the finding unless clearly and palpably against the weight of the testimony; but it is not concluded by a finding of the Commission based upon admitted facts, which in no wise tend to sustain the conclusion reached. The Commission cannot, by an ultimate finding, based upon the undisputed facts, preclude the Commerce Court from reaching a conclusion of its own on such undisputed and^ admitted facts. Where the facts are undisputed there is no occasion for facts to be found, and the ultimate conclusion of the Commis- sion is a mixed question of law and fact which is not conclusive upon the Com- merce Court. (Mack, J., dissenting.) A. T. & S. F. Ry. Co. v. I. C. C, 188 Fed. 229, 239; S. P. Co. v. L C. C, 188 Fed. 241. II. PROCEDURE. §7. Examination of Record. (a) Where an order of the Commis- sion condemns a switching charge as in violation of the Act, but does not specify the particular section violated, and the report of the Commission is made a part of the order, which order is included in the petition of the railroad to the Commerce Court, that court is at liberty to examine the report to ascer- tain the views of the Commission as to what particular provision of the Act the practice or charge of petitioner violates. A. T. & S. F. Ry. Co. v. L C C, 188 Fed. 229, 237; S. P. Co. v. L C. C, 188 Fed. 241. (b) The Commerce Court, in a peti- tion including the report or opinion of the Commission, is limited to examining the report or opinion of the majority ol the Commission, and the views of the minority are not open to consideration. A. T. & S. F. Ry. Co. v. L C. C, 188 Fed. 229, 237; S. P. Co. v. I. C. C, 188 Fed. 241. §8. Judicial Notice. See Evidence, III. (a) The Commerce Court may take judicial notice of the fact that the inter- state rates prescribed for the transporta- tion of freight by a common carrier must necessarily be more or less interdepend- ent or at least be so related to each other that the rate-making power will not, sim- ply because it has the power, fix a rate upon a single line of railroads which will necessarily disorganize established and reasonable rates on other railroads in the same territory. Hooker v. I. C. C, 188 Fed. 242, 251; Eagle White Lead Co. V. L C. C, 188 Fed. 256. COMMODITY RATES, §1 (a)— §3 (c) 159 COMMODITY RATES. I. CREATION AND PURPOSE. §1. Nature in general, §2. Relation to class rates. [I. APPLICATION AND CONSTRUC- TION. §3. Specific commodity rating. §4. Creation subsequent to ship- ment. CROSS REFERENCES. See Class Rates, Special Rates, Tar- iffs. I. CREATION AND PURPOSE. 5I. Nature in General. (a) The differences in transportation 3onditions may justify a lower commod- ty rate, mile for mile, east than west of he Mississippi River. R. R. Commis- sioners of Kansas v. A. T. & S. F. Ry. ::'o., 22 I. C. C. 407, 415. (aa) Commodity rates are ordinarily issued to provide for the movement of LrafRc believed to require a lower rate han is provided by classification, joerres Cooperage Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 5, 6. (b) Commodity rates are always in ;he nature of preference. United States Leather Co. v. S. Ry. Co., 21 I. C. C. }23, 325. (c) Commodity rates are in essence exceptions to the classification based ipon a belief in the economic expediency )f such course. R. R. Commission of STev. V. S. P. Co., 21 I. C. C. 329, 332. (d) Eastbound distributing rates from Portland, Seattle and Tacoma, con- structed on a mileage basis, will result n a more satisfactory adjustment than he establishment of particular rates to •epresentative destinations. Portland :^hamber of Commerce v. O. R. R. & N. :o., 21 I. C. C. 640, 643. }2. Relation to Class Rates. See Class Rates. (a) There is no reason why a rate should be relatively higher in the case )f an article generally given the com- nodity rate than in the case of articles carried at class rates. Scheuing v. L. & N. R. R. Co., 20 I. C. C. 550, 552. (b) General policy is to make lower :han class rates the rates on commodities :he movement of which is deemed neces- sary to development of mercantile inter- ests and industries. R. R. Commission of Nev. v. S. P. Co., 19 I. C. C. 238, 255. (c) A commodity rate higher than the class rate is not of itself unlawful. Wheeling Corrugating Co. v. B. & O. R. R. Co., 18 I. C. C. 125, 126. (d) While a commodity rate may be a different rate from a class rate, it does not necessarily follow that it must be a lower rate, nor is it obligato-ry upon the carrier to thereby establish a lower rate. Wheeling corrugating Co. v. B. & O. R. R. Co., 18 I. C. C. 125, 126. (e) Class rates on heavy commodities are made to move the mo-re or less limited shipments from place to place, and commodity rates to move large, steady shipments. James & Abbot Co. v. B. & M. R. R., 17 I. C. C. 273, 275. (f) Commodity rates are almost in- variably lower than class rates, being special rates presumably established on account of peculiar circumstances and conditions. Indianapolis Freight Bureau V. C. C. C. & St. L. Ry. Co., 15 I. C. C. 367, 369. II. APPLICATION AND CONSTRUC- TION. See Tariffs, §7. §3. Specific Commodity Rating. See Tariffs, §7 (000). (a) Complainant shipped new beer kegs C. L. Milwaukee, Wis., to Sacra- mento, Cal., under a specific commodity rate of $1.35 per 100 lbs. At the same time there was a class rate applicable of $1.00 per 100 lbs. HELD, that where a commodity rate is named in a tariff for movement of an article between spec- ified points, such commodity rate is the lawful rate and the only one that may be used with relation to that traffic between those points, even though a class rate or some combination may make lower. However, upon authority of R. R. Comm. v. S. P. Co., 19 I. C. C. 238, rate held un- reasonable to the extent it exceeded $1.00 per 100 lbs. Reparation awarded. Goerres Cooperage Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 5. (b) A shipment moving under a com- modity tariff is not subject to any regu- lation not contained in that specific car- riage. Wheeler Lumber Bridge & Sup- ply Co. V. Astoria & Columbia River R. R. Co., 20 I. C. C. 10. (c) The Commission's tariff regula- tions have continuously contained a rule 160 COMMODITY RATES, §3 (d) — (i) that the naming of a commodity rate on any article takes that article out of the class rates between the same points. This rule, however, does not prevent the alternative offering and use of class and commodity rates contained in the same tarilT. Wheeler & Motter Mercantile Co. V. C. B. & Q. R. R. Co., 20 I. C. C. 141, 145. (d) In the Burnham, Hanna, Munger case, 14 I. C. C. 299, the Commission found the through class rates from At- lantic Seaboard territory to the Missouri River, made in combination on the Mis- sissippi River, applicable on the first five classes to be unreasonable, because the portions applicable west of the Missis- sippi were unreasonable, and those portions were reduced. The issue tried, determined and covered by the Commis- sion's order was the application of the class rates on the first five classes to the traffic subject thereto. The Commission's order reducing the rates was entered to become effective Nov. 10, 1908, but was enjoined and did not become effective until Oct. 26, 1910. At the time of the entry of the original order of the Com- mission, and continuously since then, an exception sheet took cotton piece goods from the first class and rated them as third class, and there was also in effect contemporaneously a commodity rate on cotton piece goods the same as the third- class rate. The tariff contained an alter- native rule for the application of class or commodity rates, as shown in the tar- iff, whichever resulted in a lower charge. Under the Commission's final order the proportional class rates were put into effect without being made subject to the alternative use of class or commodity rates. It was not suggested that leav- ing this rule out was not a compliance with the order. The complaint, in the Burnham, Hanna, Munger case, did not include the commodity rate on cotton piece goods. HELD, that the rates es- tablished by defendants under the de- cision of the Commission in the Burnham, Hanna, Munger case did not apply to cotton piece goods, as this commodity took, and does still take, a specific com- n odity rate. Wheeler & Motter Mer- cantile Co. V. C. B. & Q. R. R. Co.. 20 I. C. C. 141, 147. (e) Complainant shipped a carload of plows, Evansville, Ind., to Huntsville, Ala. Freight charges based on the sixth- class rate of 30c per 100 lbs. was as- sessed. The shipment contained 1,600 lbs. of plow handles and 33,400 lbs. of steel beam plows set up, except that the handles and braces were removed. The tariff provided rates on agricultural im- plements, sixth class, C. L. 30c; plow han- dles, L. C. L., fourth class, 47c; "special iron," special rate 23c, C. L. minimum 24,000 lbs.; plow bases defined as special iron. The tariff also provided that when parts constituting complete articles are shipped they will be rated as provided for the complete article, except when rated separately in the classification. Subsequent to shipment the classifica- tion has been amended to provide that plow bases with beams attached, L. C. L., will take fourth-class rates, while plow bases will take the special iron rate. No evidence was offered concerning the unreasonableness per se of the charges assessed. HELD, had the beams been detached the fourth-class 47c L. C. L. rate could have been assessed on the han- dles and beams and the sp-eciai iron rate C. L. to the bases, but inasmuch as there was no separate rating for bases with beams attached, the agricul- tural implement rate was properly ap- plicable, and the rate assessed 'v«s not unreasonable. Reparation denied. Thomp- son V. L. & N. R. R. Co., 20 I. C. C. 161, 163. (f) Where a specific rate is estab- lished on wax paper, such rate must be applied to all grades and qualities of wax paper regardless of the use to which it is put. Pacific Coast Biscuit Co. v. O. R. R. & N. Co., 20 L C. C. 178, 180. (g) Publication of commodity rate takes commodity out of classification. In- dianapolis Freight Bureau v. C, C, C. & St. L. Ry. Co., 16 L C. C. 50, 70. (h) Commodity rates established by the Transcontinental Freight Bureau are not to be construed by the Western Clas- sification in the absence of proper tariff nrovision. Newton Gum Co. v. C. B. & Q. Ry. Co., 16 I. C. C. 341, 347. (i) In every instance where a com- modity rate is named in a tariff upon a commodity and between specified points, such commodity rate is the lawful rate and the only rate that can be used with relation to that traffic be- tween those points even though a class rate or some combination may make lower. The naming of a commodity rate on any article or character of traffic takes such articles or traffic entirely out of the classification and out of the class COMMODITY RATES, §4 (a)— COMMODITIES CLAUSE, §1 (f) 161 ites between the points to wlxich such Dmmodity rate applies. Porter v. St. . & S. F. R. R. Co., 15 I. C. C. 1, 5. 4-. Creation Subsequent to Shipment. (a) Complainant attacked the second- lass rate of $2.60 per 100 lbs. L. C. L. Q rubber-covered iron or steel paper mill )lls from Boston to Portland and Albina, re., as part of the total through-rate of 2.70 to Oregon City Locks, Ore. At the me of shipment a special commodity ite of $1.75 applied on "iron and steel )lls for flour, paper and rubber mills, 3xed." Subsequently, after the ship- lents in question, the commodity rate as amended so as to specifically apply > rubber-covered rolls. HELD, that the ibber-covered iron paper mill rolls on hich freight had been paid were paper ill rolls within the meaning and intent of le commodity rate, although technically 3t within its description. The coating : rubber does not make them any the ss paper mill rolls. The long-continued 36 of the commodity rate, and the im- ediate amendment of the tariff by the irriers when their attention was di- jcted to it, so as to specifically include ibber-covered rolls, fairly indicate the itended application of that rate. Rep- -ation awarded. Willamette Pulp & Pa- 3r Co. V. B. & A. R. R. Co., 21 I. C. C. JS. (b) On carloads of hay from Amster- im and Merwin, Mo., to Memphis over le K. C. S. R. R. via Howe Okla., and lence over the Rock Island, complain- it was assessed the through class rate ' 33c. At the time of shipment, a spe- al commodity rate of 20c was in effect a the same route. This special com- odity rate was not canceled until after le shipment in question, through some advertence on the part of defendant. ELD, the rate charged was unreason- 3le. Reparation awarded. Jones v. K. , S. Ry. Co., 17 L C. C. 468, 469. COMMODITIES CLAUSE. . CONSTITUTIONALITY. §1. In general. . CONSTRUCTION. CONSTITUTIONALITY. I. In General. (a) The commodities clause of the epbum Act is not void because of the [ception contained therein as to timber and the manufactured products thereof, since no constitutional limitation requires that such a regulation when adopted should be applied to all commodities alike. U. S. v. Del. & Hudson Co., 213 U. S. 366, 416, 29 Sup Ct. 527, 53 L. ed 836. (b) The commodities clause of the Hepburn Act is not unconstitutional as depriving railroads of property without due process of law, contrary to the fifth amendment, since the contentions to the contrary proceed upon the mistaken con- ception that inconvenience, not power, is the criterion by which to test the con- stitutionality of legislation. U. S. v. D. & H. Co., 213 U. S. 366, 416, 29 Sup. Ct. 527, 53 L. ed. 836. (c) The commodities clause of the Hepburn Act is not void as resulting in discrimination between carriers. U. S. V. D. & H. Co., 213 U. S. 366, 417, 29 Sup. Ct. 527, 53 L. ed. 836. (d) The commodities clause of the Hepburn Act is not void because of the nature and character of the penalties which it imposes for violations of its provisions, since the question of the constitutionality of the clause relating to penalties is wholly separable from the remainder of the clause. U. S. v. D. & H. Co., 213 U. S. 366, 417, 29 Sup. Ct., 527, 53 L. €d. 836. (e) The commodities clause in the Hepburn Act is inherently within the power of Congress to enact as a regula- tion of commerce, and constituted a regu- lation to which all pre-existing rates of the railroad companies were subordi- nated. U. S. V. D. & H. Co., 213 U. S. 366, 415, 29 Sup. Ct. 527, 53 L. ed. 836. (f) The provisions of section 1 of the Act, as amended June 29, 1906, making it unlawful for a railroad to transport in interstate commerce any article or commodity, other than timber and the manufactured products thereof, manufac- tured, mined or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier, is in violation of the fifth amend- ment of the Constitution of the United States, forbidding the deprivation of pri- vate property without due process of law, since the provision is not a com- petent and efficient regulation of com- 162 COMMODITIES CLAUSE, II (a) — (h) merce, directly dealing with the evil of the situation, but is destructive of prop- erty interests, which only indirectly affect interstate commerce, and a bill by the United States to enjoin carriers who have owned coal lands for many years from violating the provision should be denied. (Buffington, J., dissenting.) U. S. v. D. & H. Co., 164 Fed. 215, 245, reversed, 213 U. S. 366, 29 Sup. Ct. 527, 53 L. ed. 836. N. CONSTRUCTION. • (a) While under the commodities clause of the Hepburn Act the right of a railroad campany as a stockholder in a coal company to use its stock ownership for the purpose of a bona fide separate administration of the affairs of the coal corporation may not be denied, the use of such stock ownership for the purpose of destroying the entity of the producing corporation and of commingling its affairs in administration with the affairs of the railroad company, so as to make the two corporations virtually one, brings the railroad company within the prohibition of the commodities clause. U. S. v. L. V. R. R. Co., 220 U. S. 257, 274, 31 Sup. Ct. 387, 55 L. ed. 458. (b) By the operation and effect of the commodities clause of the Hepburn Act, a duty is cast upon a railroad company proposing to carry in interstate commerce the products of a producing corporation in which it has a stock interest, not to abuse such power so as virtuallv to do by indirection that which the commodity clause prohibits, a duty which plainly would be violated by the unnecessary commingling of the affairs of the produc- ing company with its own so as to cause them to be one and inseparable. U. S. v. L. V. R. R. Co., 220 U. S. 257, 274, 31 Sup. Ct. 387, 55 L. -ed. 458. (c) The commodities clause in the Hepburn Act prohibits a railroad com- pany engaged in interstate commerce from transporting in such commerce ar- ticles or commodities: (a) when the arti- cle or commodity has been manufactured, mined, or produced by a carrier or under its authority, and at the time, of trans- portation the carrier has not in good faith before the act of transportation dis- associated itself from such article or commodity; (b) when the carrier owns the article or commodity to be trans- ported in whole or in part; (c) when the carrier at the time of transportation has an interest, direct or indirect, in a legal or equitable sense in the article or com- modity, not including, therefore, articles or commodities manufactured, mined, produced or owned, etc., by a bona fide corporation in which the railroad com- pany is a stockholder. U. S. v. D. & H. Co., 213 U. S. 366, 415, 29 Sup. Ct. 527, 53 L. ed. 836. (d) Under the commodities clause of the Hepburn Act forbidding a railroad to transport articles or commodities "in which it may have any interest direct cr Indirect," the prohibition does not apply to commodities owned by separate cor- porations in which the carrier owns stock. (Harlan, J., dissenting.) U. >. v. D. & H. Co., 213 U. S. 366, 414 29 Sup. Ct. 527, 53 L. ed. 836. (e) Under the commodities clause of the Hepburn Act, making it unlawful for any railroad company to transport any article or commodity, other than timber and the manufactured products thereof, manufactured, mined or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, etc., the prohibition applies only to arti- cles manufactured, mined or produced by the railroad which are at the time of transportation owned by it and does not apply to such articles when the same have become, prior to the time of transporta- tion, the property of someone else. U. S. V. D. & H. Co., 213 U. S. 366, 412, 29 Sup. Ct. 527, 53 L. ed. 836. ' (f) Identity of ownership of terminal and adjoining refinery is a relationship which should be subjected to the closest scrutiny. Federal Sugar Refining Co. v. B. & O. R. R. Co., 17 I. C. C. 40, 47. (g) So long as there is identity of ownership, in the agency of transporta- tion and the thing transported, it is ex- tremely difficult, if not impossible, to prevent discrimination between shippers. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 15 I. C. C, 73, 78. (h) The ownership of a rail line by a shipper which serves that shipper calls for closest scrutiny to ascertain whether, through divisions or allowances, rebates are made to the shipping owner. Crane R. R. V. P. & R. Ry. Co., 15 I. C. C. 248, 253. COMMON CARRIER, §1 (a)— §3 (a) 163 COMMON CARRIER. I. TEST OF STATUS. §1. Incorporation. §2. Lease of line. §3. Public offer to carry. §4. Refusal to publish tariffs. §5. Stock ownership. §6. Transportation of private cars. [I. DETERMINATION OF STATUS. §7. Question of fact. CROSS REFERENCES. See Divisions, §1 (d); Forwarders, I (h); Tap Lines, §3 (2), (a), (b), §4, §6; Terminal Facilities. §7 (c) ; Transportation, I (a), (b). I. TEST OF STATUS. See Tap Lines. §3, §3 (2). 5I. Incorporation. (a) The Act specifically applies "to my corporation or any person or per- sons" engaged in the transportation of passengers or property by rail from a point in one state to a point in another state. So far as interstate transportation s concerned incorporation is not a con- lition precedent to the right to be a common carrier by rail. The Tap-line :ase, 23 I. C. C. 277, 291. (aa) Common ownership of an in- lustry and of a railroad that is held )ut as a common carrier and has some ictual traffic for the public for hire s not in itself sufficient to divest the •ailroad of its status as a common car- ■ier. Nor does the fact that the rails, ocomotives and cars of an industry lave been turned over to an incorpo- ated railroad company, owned and tperated by the industry or in its in- erest, divest those appliances of their iharacter as a plant facility if such in act is the case. Tap-line Case, 23 I. ^. C. 277, 292. (b) The purpose of the Act can- lot be nullified by the creation of a cor- lorate entity that is disassociated in orm but nevertheless responsive to the ame general policy, and subserves the ame general investment as its proprie- ary comi any. In Re Wharfage Charges ,t Galveston, 23 I. C. C. 535, 544. (bb) The Higgins Oil & Fuel Co., a rexas oil corporation, organized the Gulf 'oast Navigation Co., whose entire capi- al stock it owned and transferred for he stock to the navigation company its tow boat and barges. The navigation company sought to compel defendants to join with it in the establishment of through routes and joint rates on crude petroleum oil from producing points in the Caddo oil field of northern Louisiana to various landings on the Neches and Sabine rivers in Texas and from the same points to Morgan City, La. The navigation company carries very little public traffic, its principal business being transportation for the oil company, and it runs no regular schedule for the ac- commodation of the public. HELD, the mere fact that the tow boat and barges of the oil company have been turned over to a corporation owned by it, and pur- porting to be a common carrier, and which is able to pick up some actual transportation for other interests, over other waters, is not conclusive of its right to compel defendants to contribute to the expense of distributing its oil, and similar products, at private landings, and thus to impair their own earnings. Complaint dismissed. Gulf Coast Navi- gation Co. V. K. C. S. Ry. Co., 19 I. C. C. 544. §2. Lease of Line. (a) Although a stock yards company by charter has the power to operate a railroad, and for a period of time does do so, it ceases to be a common carrier subject to the Act after it has leased its tracks to an independent railroad cor- poration, discontinues operating the same, and retains a mere reversionary interest in the railroad property, and this despite the fact that an investment com- pany through stock ownership controls both the stock yards and the lessee rail- road corporation. U. S. v. Union S. & T. Co., 192 Fed. 330, 341. §3. Public Offer to Carry. See Act to Regulate Commerce, II (q). (a) Defendant stock yards company was a corporation engaged solely in maintaining a stock yards at Chicago. It was not a dealer in live i.tock but sim- ply maintained a public market for buy- ing and selling. It leased its railway tracks, extending from the stock yards a distance of some two miles to the lake front, to defendant junction company, an independent corporation, and except as lessor was not engaged in the railroad business. Defendant investment com- pany through stock ownership controlled both the stock yards company and the 164 COMMON CARRIER, §3 (b) — (dd) junction company. The junction com- pany was engaged solely in transporting carloads of live stock between the termi- nals of various railroads and the stock yards. It published tariffs offering to perform this service to anyone tendering carloads of stock. It charged a distinct switching charge for this service re- gardless of the commodity or character of the freight in the car, its origin, des- tination, or the through freight charge of the trunk line carriers. It in fact served only the railroads and the stock yards company. It performed this ser- vice as a part of a continuous carriage and without the intervention of the ship- per or consignee. It was organized un- der the railroad law of Illinois. HELD, the junction company was a common car- rier, since it offered its services to all the public who were in a position to avail themselves thereof, and the fact that the class actually using it was lim- ited did not render it any the less a common carrier. U. S. v. Union S. & T. Co., 192 Fed. 330, 336. (b) Defendant junction company op- erated a line of railroad some two miles in length, extending from the lake front at Chicago to the stock yards. It re- ceived carloads of live stock from the terminals of the railroads entering Chi- cago and transported the same to the stock yards, there to be unloaded or to be turned over to other railroads. The junction company, while holding itself out in its tariffs as ready to serve all the public, in fact received carloads of live stock only from railroads and made its shipments without the intervention of the shipper or consignee. HELD, on ship- ments moving from one state into anoth- er which the junction company partici- pated in, it was a common carrier, en- gaged in interstate commerce, within section 1 of the Act, and as such sub- ject to the requirements of sections 6 and 20 requiring the filing of tariffs with the Commission and the making of reports. U. S. v. Union S. & T. Co., 192 Fed. 330, 340. (c) Complainants are engaged in mining coal and manufacturing coke in Wise and Lee counties, Va., at points on the lines of the Interstate R. R. Co. and the Va. S. W. R. Co. Complainants' coal and coke are shipped to Appalachia and there delivered to the L. & N. R. R. Co. for destination points. For transporta- tion service to Appalachia originating carriers are paid a local rate of 10c per ton and the L. & N. R. R. is paid Appalachia rates thence to destination. Complainants are charged 10c per ton more to reach same markets than are their competitors at Appalachia, Norton and St. Charles, and asked that through routes and joint rates be established from their mines and coking plants to points in Kentucky and Ohio. Defend- ants contended that the Interstate R. R. Co., a small originating carrier, was not a common carrier but merely a plant facility. It files tariffs with and makes re- ports to the Commission, as required by the Act, and is engaged in carrying in- terstate traffic, both passenger and freight. It maintains through routes and joint rates with various other carriers, and, except on coal and coke, with the L. & N. R. R. It was originally organ- ized to enable persons interested in the Virginia Coal & Iron Co. to develop their properties, but since 1903 gives general freight and passenger service, and serves industries not connected with the Vir- ginia Coal & Iron Co. HELD, the fact that most of the freight it carries is for complainant does not determine its character to be that of plant facility. It is immaterial by whom a road is owned or for what purpose organized. Since it holds itself out to be, on the facts of record it must be deemed a common car- rier. Stonega Coke & Coal Co. v. L. & N. R. R. Co., 23 I. C. C. 17, 23. (cc) A railroad which holds itself out as a common carrier, files tariffs, makes reports and engages in interstate transportation, is a common carrier sub- ject to the Act. Stonega Coke & Coal Co. V. L. & N. R. R. Co., 23 L C. C. 17, 22. (d) The character of service which a railroad renders or holds itself out as willing to render is controlling in determining whether it is a common carrier. Stonega Coke & Coal Co. v. L. & N. R. R. Co., 23 I. C. C. 17. (dd) If there is a holding out as a common carrier for hire, and if there is an ostensible and actual movement of traffic for the public for hire, the status of a common carrier exists, whether the holding out is by a company or by an in- dividual. But such a holding out and the existence of an actual traffic is not conclusive in all cases. Where the hold- ing out is in furtherance of a plan to se- cure unlawful advantages and the alleged carrier is able to pick up some traffic that is incidental to that purpose, it COMMON CARRIER, §3 (e) — (f) 165 must be regarded simply as a cloak or device to effect unlawful results. The Tap-line Case, 23 I. C. C. 277, 292. (e) The Act, limiting its application as it does to common carriers, was passed in full view and recognition of the common law under which the attitude and actions of the person whether natu- ral or artificial determine whether or not he or it is in law a common carrier. Speaking in general terms, a carrier could become a common carrier by offer- ing its services as such to the public up- on first complying with the statutory or police requirement demanded of it by charter or otherwise. The test to be ap- plied in determining whether a person is a common carrier, really is whether he holds out either expressly or by a course of conduct that he will as long as he has room carry for hire the goods of every person indifferently who will bring goods to him to be carried. Mfrs. Ry. Co. V. St. L. I. M. & S. Ry. Co., 21 I. C. C. 304, 312. (f) The Manufacturers Railway Com- pany of St. Louis, Mo., and a number of shippers located on its lines, asked that through routes be established to and from points on its lines of railway in St. Louis, Mo., from and to points on the lines of each of the defendant railway companies and points beyond; also for the fixing of reasonable divisions or ab- sorptions out of the St. Louis rates to be paid to the Manufacturers Railway Company for terminal services rendered by it and for reparation. This company was incorporated in 1887 to furnish ter- minal facilities for the southern section of industrial St. Louis, which, owing to the physical conditions existing there, seem both reasonable and necessary. The Terminal Railroad Association domi- nates entirely the terminal facilities of St. Louis and the stock of this company is owned equally by the fourteen car- riers running into that city. The only terminal facilities in the southern section were furnished by the Manufacturers Railway and by the lines of the St. L. I. M. & S. R. R. The latter's tracks, how- ever, follow the bank of the Mississippi river and reach such industries as are adjacent thereto. For a considerable dis- tance along the river there is a steep grade to be overcome in reaching indus- tries back from the river and it was to afford service to these that the Manu- facturers Railway was constructed. The Manufacturers Railway leased its tracks to the St. L. L M. & S. R. R. until 1908, since when it was operated independent- ly. The majority of its stock is owned by the Anheuser-Busch Brewing Ass'n. For the year ending April 30, 1910, it handled 42,970 cars, of which 37,546 cars were handled for the brewing association, and 5,424 cars were handled for some 87 other industries or patrons, of which 35 shipped or received 10 cars or more. The traffic of the brewing association constitutes one-thirtieth of the total traf- fic of St. Louis. The complainant oper- ates about 20 miles of track, of which 21^: miles are classed as main track, and the remainder as side track, switches and yard track. Of this total six miles are leased from the brewing association, and are used in part both for the services of the brewery and the public. The only physical connection other than that with the St. L. L M. ^ S. R. R. is with the St. Louis Transfer Co., one of the con- stituent properties of the Terminal Rail- road Association. Two-thirds of the tracks of the Manufacturers Railway has been constructed solely for the purpose of serving the public, while the remain- ing one-third is used in serving both the brewery and the public. Prior to March 1, 1910, there existed through routes and joint rates over the lines of defendant carriers and complainant carriers to and from points on the line of the complain- ant company. Since that date the de- fendants declined to absorb the charges for the services of the Manufacturers Railway. While the Manufacturers Rail- way was operated by the St. L. L M. & S. R. R. during 23 years and also when operated under the tariffs which permit- ted an allowance to the Manufacturers Railway itself in 1909 until March 1, 1910, delivery was made to the public served by it at the St. Louis rates. HELD, in view of all the facts, circum- stances and conditions bearing upon the question there is no doubt that the Manufacturers Railway Company is in fact a common carrier at common law, notwithstanding any modification there- of, and therefore within the provisions of the first section of the Act to regulate commerce, and that the payment to it of a reasonable and just portion of the St. Louis rates for the terminal services rendered by it is not unlawful, and that it is not a mere plant facility. FUR- THER HELD, that the action of defend- ants in cancelling the division and ab- sorptions with the Manufacturers Rail- way which have been for many years 166 COMMON CARRIER, §3 (ff)— COMMUTATION FARES (c) Included in the St. Louis rates, has sub- jected complainant shippers and a con- siderable portion of the public of south St. Louis to the payment of unjust and unreasonable transportation charges, and to undue discriminations and disad- vantage. Question of what are reason- able divisions and the reparation to be awarded reserved for further investiga- tion. (Lane, Comm'r, filed a concurring opinion, Harlan, Comm'r, a dissenting one.) M'f'rs Ry. Co. v. St. L. I. M. & S. Ry. Co., 21 I. C. C. 304. (ff) Defendant truckman received goods in New York City to be carried to the wharf and thence to be transported by ocean carrier to Boston. Defendant's duty was simply to cart same from the store to the dock as an independent employment. HELD, he was not a common carrier engaged in the trans- portation of property "ivholly by railroad (or partly by railroad and partly by water under a common control, man- agement, or arrangement)" within the meaning of section 1 of the Interstate Commerce Act, so as to make him liable under the Carmack amendment for loss caused by the ocean carrier. Hirsch v. New England Nav. Co., 129 App. Div. 178, 181, 113 N. Y. Supp. 395. §4. Refusal to Publish Tariffs. See Tariffs, §1. (a) Commission cannot recognize as common carriers lines that do not pub- lish tariffs in lawful form or concur prop- erly in lawful tariffs of other lines or that do not in all other respects comply with the law. Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 17 L C. C. 338, 343. §5. Stock Ownership. See Allowances, §10 (c), (d). (a) An investment company control- ling through stock ownership a stock- yards company not engaged in railroad- ing except as a lessor and an independ- ent railroad operating a junction line is not a common carrier within section 1 of the Interstate Commerce Act, or section 3 of the Elkins Act. U. S. v. Union S. & T. Co., 192 Fed. 330, 342. (b) The mere fact that complainant's road is owned by a corporation which also owns the stock of the largest ship- per over it, and that it was originally organized and built for the purpose of doing the work of that shipper, is not controlling against its being held a com- mon carrier. Crane R. R. Co. v. P. & R. Ry. Co., 15 I. C. C. 248, 252. §6. Transportation of Private Cars. See Cars and Car Supply, §4, §31, §32; Transportation, §2. (a) No railroad transporting private cars of theatrical companies has been held a private carrier since the Act took effect. Chappelle v. L. & N. R. R. Co., 19 L C. C. 456. II. DETERMINATION OF STATUS. §7. Question of Fact. See Act to Regulate Commerce, II (w). (a) • Whether a company or person claiming to be a common carrier is a common carrier at all and for all pur- poses is a question of fact, and whether the service performed for a particular person is a service of transportation or an industrial service is also a question of fact. The Tap-line Case, 23 I. C. C. 277, 292. COMMUTATION FARES. See Electric Lines, IV (d) ; Passen- ger Fares and Facilities, §1 (b), §3 (a), §5; Through Routes and Joint Rates, §22 (I). (a) In order that unjust discrimina- tion may be avoided it is necessary, to the end that excursion, commutation, or mileage* tickets may be made available for the purposes specified and in the manner indicated, that definite and speci- fic provision therefor be contained in established tariff schedules which are filed with the Commission, and also in the tariff schedules that contain the fares that are to be so used. When tariffs contain such provisions the combination so authorized may be used in lieu of the regular joint or local fares between the points covered by the combination. In Re Mileage, Excursion and Commutation Tickets, 23 L C. C. 95. 97. (b) Carriers are permitted but not .compelled by the Act to establish ex- cursion, commutation and mileage tick- ets, the latter usually being designated mileage books. In Re Mileage, Excur- sion and Commutation Tickets, 23 I. C. C. 95, 90. (c) It is lawful for a carrier or car- riers, having duly established in the man- ner required or authorized by law any form of excursion, commutation or mile- COMPARATIVE RATES— COMPRESS COMPANIES, II (a) 167 ige fares, to provide in their schedules 'or the use of any of said fares as basing 'ares, thus enabling other carriers to ise the same, in connection with their Dwn duly established fares, for the hrough transportation of passengers, on iny physical line of connecting carriers, jpon a combination of tickets over all of he component parts of such through line, md for the carriers composing or operat- ng such through line to afford through Jleeping car, baggage checking, and )ther through accommodations in the >ame manner as in case of through tick- its over the entire line, provided the )assenger demanding such through trans- portation and through accommodation jhall present to the initial carrier at the )oint of starting the lawfully authorized ickets covering the lines necessary for he entire through journey. It, however, s not deemed lawful for a carrier to ;heck a passenger's baggage beyond the )oint to which he presents tickets at the )oint of starting, upon the mere declara- ion of intention to go farther upon mother ticket to be thereafter pur- ;hased or otherwise. In Re Mileage, Excursion and Commutation Tickets, 23 . C. C. 95, 96. COMPARATIVE RATES. See Advanced Rates, §8 (1) (f), §18 (7); Branch Lines, §2; Blanket Rates, §13 (h), §17 (b), §18; Com- merce Court, §4 (b); Classification, §3 (h) IV, §18; Equalization of Rates, §2 (kk) ; Evidence. §11. §12, §13, §14 (1) (o). (D), §14 (5), (c), (h), (n), (q). (r), §29 (n), §30, §47, §58, §59, §63 (n), §66 (p); Ex- press Companies, §7 (c), §11, §20, §23; Import Traffic, II (c), (d); Minimum, §7 (f ) ; Long and Short Haul, §7 (aa), §12 (2) (e) ; Pas- senger Fares and Facilities, §2 (J); Precooling, III (c) ; Proportional Rates, IV (c), (h); Rates via Com- peting Line; Reasonableness of Rates, §2 (jj), (qq), §3 (c), (g), (q), (r), (t), §6 (g), §8 (p), (q), (r), §8 (4) (d), (g), §28 (j), (o), (t), (dd), §37 (e). (f), §40 (h), §56 (a), §66 (c), §75 (c). §84 (q). §117 (c). §141 (a); Relative Rates; Through Routes and Joint Rates, §13 (b), (m), §14 (e), §15. COMPETITION. See Act to Regulate Commerce, II (a); Advanced Rates, §7 (4); Class- ification, §6, §7 (e); Demurrage, §15 (f); Differentials, §1 (d); Dis- crimination, §3 (f), §8, §8 (2), §8 (4), §9 (e); Equalization of Rates, §4; Evidence. §14, §20 (a), §29 (a), §64 (f ) ; Express Companies, §20 (b), (c), §21; Interstate Com- merce Commission, §1 (dd); Long and Short Haul, §4 (b), IV, §12 (2) (a); Proportional Rates, IV (e); Reasonableness of Rates, §2 (ii), §8, §8 (1) (o), §10 (d), §16 (b), (h), §63 (a), §75 (c), §76 (a), §118 (e); Reparation, §6 (x), §16 (Mi), (kkk), (mmm), (zzz), (rrr); Special Contract, §2 (k); Through Routes and Joint Rates, §15 (ii), (mmmm), (oo) ; Track Storage, 11 (i). COMPRESS COMPANIES AND CHARGES. I. CONTROL AND REGULATION. II. REASONABLENESS OF CHARGES. CROSS REFERENCES. See Allowances, §8 (1); Facilities and Privileges, §3. I. CONTROL AND REGULATION. See Allowances, §7 (d): Facilities and Privileges, §2 (ee). (a) Compress companies engaged in compressing cotton at a concentration point and compensated therefor by the carriers are amenable to control by the laws of the land. Anderson, Clayton & Co. V. C. R. I. & P. Ry. Co., 18 I. C. C. 340, 350. (b) Compression is a service which the carrier procures for its own con- venience, and when that service is per- formed in such manner as not to prej- udice, or prefer, a particular shipper, or community, the Act does not limit tne freedom of the carrier to make contracts in respect thereto. Merchants Cotton Press & Storage Co. v. I. C R. R. Co., 17 L C. C. 98, 104. (c) Section 15 in regard to allow- ances is not applicable where an allow- ance is made to a compress company not the owner of the cotton. If a violation of the Act results from more favorable contracts with the warehouse company than to complainants, it must be be- cause of discrimination under section 3. Merchants Cotton Press & Storage Co. V. I. C. R. R. Co., 17 I. C. C. 98, 105. (d) No violation of the statute results from a preference, though found to exist, to a corporation engaged solely in the compression of cotton in- which it has no interest. Merchants Cotton Press & Storage Co. v. I. C. R. R. Co., 17 I. C. C. 98, 104. II. REASONABLENESS OF CHARGES. See Allowances, §13 (a); Substitu- tion of Tonnage, §2 (b). (a) Complainant shippers of cotton, with offices at Oklahoma City, Okla., and 168 COMPRESS COMPANIES, II (b) — (c) Shreveport, La., attacked a storage charge of Ic per bale per day, for the first 15 days after the expiration of fif- teen days' free time, on cotton allowed by shippers to remain at the compress, at the concentration point, and a charge of 3c per bale for putting patches on the/ cotton. These charges were imposed by the compress companies designated by defendant carriers. Under defendant's rules and tariffs, a shipper was allowed to ship cotton under a Jocal bill of lad- ing, from a point of origin to the desig- nated point of cencentration and com- pression. Upon arrival at the compres- sion point, the carrier delivered the cot- ton to the compression company, and re- ceived therefor a receipt which it turned over to the shipper. When the shipper had determined the destination, he ob- tained the binder from the compress company, took it to the carrier and re- ceived a new bill of lading. The cotton was then compressed and shipped out, the shipper receiving the benefit of the through rate from point of origin to des- tination. The storage charge attacked applied only for the interval between the time when the compression com- pany's receipt was turned over by the carrier to the shipper, and the time when the shipper delivered the compression company's binder to the carrier. During that interval the cotton was under the complete control of the shipper, and he could order the compressing company to weigh, sample, grade, assort and per- form other services without interference from the carrier, and had the right to determine the sale and destination of the cotton. The carrier paid the com- pression charge of 10c per bale by in- cluding the same in its through rate. Nothing in the evidence indicated that the carriers had anything to do with im- posing the charges in question, but that the same were exacted solely by the ac- tion of the compress companies. The complainants contended that these charges could not be exacted without be- ing published in the tariffs of the car- riers. The complainant did not specify the exact relief sought. HELD, the evi- dence did not justify the Commission in making any order against the defendants. While, however, the carriers had a right to provide for the concentration and compression of cotton in the manner stated, the charges of the compress com- panies and the carriers must be just and reasonable, since they were per- forming a public service. Anderson, Clayton & Co. v. C. R. I. & P. Ry. Co., 18 L C. C. 340, 350. (b) Cotton shipped into Memphis was drayed back and forth by defendant carriers to compressing plants located in that city, to be compressed, and then carried from Memphis to destination points at the through rate. Defendants paid the expense of drayage and com- pression to private companies, allowing llMiC and 50c per bale for drayage and compression respectively. Complainant was a compressor of cotton at Memphis but not a shipper thereof. Defendant warehouse company established a com- pressing plant at South Memphis, some two miles from the municipal line. The stock in the company was principally owned by dealers and shippers of cotton. The company connected its plant with the lines of defendants by a system of switching tracks. On cotton compressed by the defendant warehouse the defend- ant carriers allowed 10c per bale for switching the same to and from its ware- house and 50c per bale for compression. Defendant carriers charged a rate of 20c a bale for hauling cotton from Memphis to South Memphis. Complain- ant alleged that the stockholders of defendant warehouse company at South Memphis being themselves shippers obtained lower rates through the divi- dends derived by them from the profits of their warehouse company. Complain- ant introduced no evidence to show that the defendant warehouse company made any profit on cotton compressed by it at the 10c switching charge and 50c compressing charge. HELD, complain- ants, not being themselves shippers of cotton, and failing to show that defend- ant warehouse company was making any profits at the 10c and 50c charges, failed to establish a case of unjust dis- crimination between shippers, as it was perfectly lawful for carriers to make special contracts with private companies which were not shippers on their lines. (Clements and Lane, Comm'rs, dissent- ing.) Merchants Cotton Press & Stor- age Co. V. I. C. R. R. Co., 17 I. C. C. 98, 104, 106. (c) If there is a recognized custom or usage with reference to the payment by a railway company of the charges for compressing cotton, such charges being covered or included by the rate for transporting by the carrier of the com- pressed cotton, there being a question as to the particular meaning of the COMPRESS COMPANIES, II (d)— CONCURRENCES 169 voids "uncompressed cotton, any qiian- ity," and "compressed cotton, any quan- ity," such custom is permissible to be )roved as a matter of explanation of he meaning of these words as such in he tariff sheet. C. R. I. & P. Ry. Co. r. Dodson & Williams, 25 Okla. 822, 832, 14 P. 673, 107 P. 921. (d) Where the terms "compressed lOtton, any quantity," and "uncompressed ;otton, any quantity," are used in a tar- ff sheet without further amplifying v^ords, the contemporaneous, practical ;onstruction placed on said terms by the ailroad company, through its agents in ;harge and the shippers, as to baled otton, delivered to the railroad com- pany, in an uncompressed state with he understanding that it was to be ompressed, and then from the place of nitial delivery transported to the place if original consignment, when there k^as no other promulgated tariff rate •etween the designated points concern- ng cotton shipments, is competent for onsideration in determining the mean- ng of such terms. C. R. I. & P. Ry. Co. . Dodson & Williams, 25 Okla. 822, 829, 4 P. 673, 107 P. 921. :ONCENTRATING RATES AND PRIVILEGES. See Compress Companies and Charges, §2 (a); Evidence, §13 (6) (i), §47 (g); Export Rates and Fa- cilities, III (d); Facilities and Priv- ileges, §4, §17 (k), §20 (e), §21 (d); Proportional Rates, IV (f ) ; Reason- ableness of Rates, §3 (i); Repara- tion, §8 (e), (dd); Substitution of Tonnage, §2 (b); Tariffs, §4 (g). (a) It is unjustly discriminatory for arriers to assess on interstate or ex- port traffic concentration charges at ompetitive points different from or reater than those which they contem- oraneously assess at noncompetitive oints. Red River Oil Co. v. T. & P. Ry. :o., 23 I. C. C. 438, 447. (aa) Manufacturers of cottonseed roducts at Alexandria and Natchito- hes. La., attacked the concentration harges exacted on shipments of cotton- eed from Louisiana points to Alex- ndria and Natchitoches of 3c per 100 3S. added to the local rates governing tie cottonseed from points of origin to le mill. When the outbound shipments re not tendered to the same carrier aat hauled the raw product in, the con- centration charge of 3c is forfeited, but if the product is reshipped over the line of the originating carrier the concentration charge is refunded. Many points at which there is market for products are located on lines from which no seed is obtained. The con- centration charge is not assessed at points where there is absence of compe- tition between carriers. HELD, the Commission does not condemn reason- able, nondiscriminatory and properly ap- plied transit rates and privileges, or a reasonable and nondiscriminatory charge for the additional service performed in connection with a transit privilege, but it is unreasonable for defendants to add to their reasonable local rates any sum as a penalty to be forfeited if the out- bound shipment does not move over the same line which hauled the inbound shipment, and it is also unjustly dis- criminatory to assess on interstate or export traffic concentration charges at points where there is competition be- tween carriers different from or greater than those which they contemporane- ously assess at noncompetitive points. Red River Oil Co. v. T. & P. Ry. Co., 23 L C. C. 438, 447. (b) It is unjustly discriminatory to exact of southern Illinois shippers a transit penalty, while competitors at St. Louis are charged nothing. Reason- able penalty suggested for both points. Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 673, 677. (bb) Carriers may grant the privilege of concentration and protect through rates. Anderson, Clayton & Co. v. C. R. I. & P. Ry Co., 18 I. C. C. 340, 350. (c) Concentration of less-than-carload shipments of boots and shoes at the ports is not feasible in the legal sense that rates must be free from conditions and burdens in their application. Kiser Co. V. C. of K. Ry. Co., 17 I. C. C. 430, 439. (d) Concentrating rates by increasing the size and regularity of shipments seems to be of advantage to carriers as well as shippers. Railroad Commission of Wisconsin v. C. &. N. W. Ry. Co., 16 I. C. C. 85, 90. CONCURRENCES. See Through Rates, §2. Routes and Joint 170 CONSTITUTIONAL LAW— COURTS, §1 (d) CONSTITUTIONAL LAW. See Act to Regulate Commerce, I; Commodities Clause, I; Crimes, §1, §33 (a); Employment, §1 (b); Equalization of Rates, §1 (p); Express Companies, §6 (b); Inter- state Commerce, §4, §5; Long and Short Haul, §1, §3, §4 (k) ; Loss and Damage, §1; Reasonableness of Rates, §1 (d) (j) ; Special Con- tract, §1; Tariffs, §2 (a); Track Storage, §1 (b). CONSTRUCTION. Of Bill of Lading: See Bill of Lad- ing, III. Of Carmack Amendment: See Loss and Damage, §2. Of Demurrage Rules: See Demurrage, §12. Of Elkins Act; See Crimes, §2. Of Released Rates: See Re- leased Rates, II. Of Tariff: See Al- lowances, §6; Express Companies, §13; Reconsignment, §5; Tariffs, IV. CONTRACTS. See Exclusive Contracts; Cars and Car Supply, IV; Special Contracts. CONTROL AND REGULATION. See Absorption of Charges, 111; Ad- vanced Rates, I; Allowances, 1; Baggage Transfer, I; Bills of Lad- ing, J; Blanket Rates, I; Cars and Car Supply, I; Compress Compa- nies and Charges, I; Demurrage, I; Discrimination, I; Divisions, I; Electric Lines, 1; Equalization of Rates, I; Export Rates and Facili- ties, I; Express Companies, I; For- eign Commerce, I; Interstate Com- merce, §3 (i), II; Lighterage, I; Long and Short Hauls, I; Over- charges, I; Passenger Fares and Facilities, I; Reasonableness of Rates, I; Reduced Rates, I; Re- frigeration, I; Released Rates, I; Routing and Misrouting, I; Spe- cial Contracts, I; Substitution of Tonnage, I; Switch Tracks and Switching, I; Tap Lines, 1; Tariffs, I; Terminal Facilities, I; Through Routes and Joint Rates, I; Track Storage, I; Transportation, III; Undercharges, I; Water Carriers, I; Weights and Weighing, I. COUNTER CLAIM. See Through Routes and Joint Rates, §16 (I) (m). COURTS. L ACTIONS. §1. In general. §2. Defenses. §3. Mandamus. §4. New trial. §5. Suits against Commission. II. APPEAL. §6. In general. III. UNITED STATES COURTS. §7. Concurrent jurisdiction. 88. Exclusive jurisdiction. §9. Original jurisdiction. IV. UNITED STATES SUPREME COURT. §10. In general. V. STATE COURTS. §11. In general. CROSS REFERENCES. See Cars and Car Supply, §33; Com- merce Court. I. ACTIONS. §1. In General. See Actions at Law; Weights and Weighing, §1 (b). (a) Where carriers are not made party defendants to a complaint before the Commission, but the order of the Commission reducing rates will inev- itably require reductions by such car- riers in large amounts from the fact that they are largely engaged in the transportation affected by such order, they have a sufficient interest to entitle them to join in a petition to the Com- merce Court to enjoin said order. A. C. L. V. I. C. C, 194 Fed. 449, 451. (b) While it is entirely proper for parties, against whom an order of the Commission has been made reducing rates, to apply to the Commission for a rehearing, such application is not a condition precedent to the bringing of a suit in the Commerce Court for the purpose of setting aside such an order. A. C. L. V. I. C. C, 194 Fed. 449, 452. (c) A petition to the Commerce Court to enjoin an order of the Commis- sion reducing rates is not an appeal or writ of error requiring all parties against whom the order of the Commis- sion was rendered to join, but is a plenary suit in equity and may be brought by one carrier without joining the other i>arties to the order. A. C. L. V. L C. C, 194 Fed. 449, 452. (d) A paragraph of a bill by car- riers to enjoin an order of the Com- mission reducing rates, on the ground that the lower rates prescribed are con- fiscatory, is bad on demurrer, where it fails to show the amount of revenue necessary and sufficient for the mainte- nance of the petitioners as common carriers, in the discharge of their du- ties to the public, and to what extent such revenue would be affected by the COURTS, §1 (e)— §2 (a) 171 •ates prescribed in the order complained )f. A. C. L. V. I. C. C, 194 Fed. 449, [53. (e) Railroads may complain of rates )rescribed by the Commission as to :heir effect upon their revenue, but not is to their effect upon shippers and )laces. A. C. L. v. I. C. C, 194 Fed. t49, 453. (f) In a petition by carriers to en- oin an order of the Commission reducing ■ates on the ground that it is confis- :atory, a demurrer will be sustained vhere the bill merely charges in gen- !ral terms that the rates prescribed are lot reasonably compensatory and do lot yield a reasonable profit, as it is he duty of the carriers, having, as they lo, largely in their possession the means »f information, to set out the revenue lerived, the cost of service, and other acts showing confiscation. A. C. L. v. . C. C, 194 Fed. 449, 455. (g) Defendant received coal from the :ompetitors of plaintiffs at the Clear- ield region and transported the same sntirely over its own line to New York larbor. Plaintiff's coal originated on an ndependent connecting line, by which t was carried some 30 miles to de- endant's line. Defendant then hauled ilaintiff's coal to New York harbor loints. Defendant had filed a tariff or the shipment of coal and had in- luded the plaintiffs and their compet- tors in the same group. The tariff ncluded the haul over the connecting ine. It published the same charges rom points in this group to similar estinations, and the initial points were 11 placed together in the tariff as one nitial point covering the Clearfield re- ion. The plaintiffs had nothing to do /ith the connecting line so far as he contract of carriage or the pay- aent of the freight rate was concerned. lELD, the finding of the jury that the ransportation service was under sub- tantiaily similar circumstances and con- itions so as to make defendant liable n a suit in the courts for damages for ranting secret allowances to plaintiffs' ompetitors was sustainable as a mat- er of law. Langdon v. Penn. R. R. ^o., 194 Fed. 486, 494. (h) The liability under section. 9 of he Act for unjust discrimination in laking secret allowances to favored hippers is not strictly a penalty in a suit in the court for damages, but Is a cause of action which survives and may. be prosecuted by executors. Langdon v. Penn. R. R. Co., 194 Fed. 486, 495. (i) Under section 8 of the Act mak- ing a carrier liable for damages result- ing to a shipper from the carrier's violation of the Act, a shipper may, for the carrier's failure to post and keep open for inspection its established rates, whereby the shipper is compelled to pay a higher rate than that in effect over a competing line, recover the dif- ference between the rate paid and the competitive rate, and this despite the fact that the shipper would thereby be charged less than the defendant's pub- lished charge. St. L. S. W. Ry. Co. v. Lewellen Bros., 192 Fed. 540, 542. (j) In a suit in a United States court to recover damages for the ex- action of excessive and unreasonable rates, the declaration must allege spe- cifically that the rates complained of have been declared excessive or unrea- sonable by the Interstate Commerce Commission, since under the Act as amended June 29, 1906, recovery cannot be had in the courts until the Commis- sion has passed upon, the rates, and an allegation merely that "plaintiffs have been obliged to pay excessive and unrea- sonable rates" is not sufficient. Meeker v. Lehigh Valley Co., 162 Fed. 354, 362. (k) Where the Commission orders carriers to desist from according dif- ferent rates to coal intended for the use of railroads as fuel than to com- mercial coal, and the facts, circum- stances and conditions upon which it bases its orders are undisputed, and the question involved is the construction, of sections 2 and 3 of the Act to deter- mine whether the different charges con- stitute violations of those sections, the order is not merely administrative and is open to review by the Commerce Court. I. C. C. v. B. & O. R. R. Co., 225 U. S. 326, 32 Sup. Ct. 742, 746, 56 L. ed. 1107. §2. Defenses. See Cars and Car Supply, §34; Crimes, VIII; Interstate Commerce Commission, §3; Special Contracts, §6; Undercharges, §3. (a) In determining the validity of a decision of the Commission its order cannot be considered by itself alone, but must be read in the light of the 172 COURTS, §2 (b)— §6 (c) entire record. I. C. C. v. U. P. R. R., 222 U. S. 541, 551, 32 Sup. Ct. 108, 56 L. ed. 308. (b) In determining the mixed ques- tions of law and facts involved in the decisions of the Commission, the court confines itself to the ultimate question as to whether the Commission, acts within its powers, and it will not con- sider the expediency or the wisdom of the order, or whether, on like testi- mony, it would have made a similar ruling. I. C. C. v. U. P. R. R., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. ed. 308. (c) Where the complaint in a suit by a shipper to recover the excess exacted above the quoted rate does not reveal on its face that the quoted rate was less than the schedule rate filed with the Interstate Commerce Commission, the defendant carrier cannot prove such fact as a defense under a plea of the general issue. Baldwin Land Co. v. Columbia Ry. Co., 58 Or. 285, 291, 114 P. 469. §3. Mandamus. See Reports, I (c). (a) Although mandamus will not lie so as to interfere with the exercise of its discretion by the Commission, it will lie to compel the Commission to take jurisdiction over carriers operating between Alaska and the States and be- tween Alaska and adjacent foreign countries, where the Commission has refused to do so pursuant to its belief that the Interstate Commerce Act has conveyed upon it no authority over such carriers. I. C. C. v. H. S. S. Co., 224 U. S. 474, 484, 32 Sup. Ct. 556, 56 L. ed. 849. (b) The Supreme Court of the Dis- trict of Columbia will issue a writ of mandamus to compel the Interstate Commerce Commission to entertain a petition by a steamship company to compel the filing with the Commission of rates and the establishment of through routes and joint rates on traffic mov- ing between Alaska and adjacent for- eign countries, and Alaska and the state of Washington. Humboldt S. S. Co. v. I. C. C, 37 App. Cas. D. C. 266, 275. §4. New Trial. (a) Where the defendant carrier in a suit by a shipper for unlawful dis- 1 crimination produces all the books re- quired to enable plaintiff to prove his case as to payment of rebates to com- petitors, plaintiff is not entitled to a new trial by reason of defendant's fail- ure to produce the whole list of docu- ments called for by him at the trial. In- ternational Coal Mining Co. v. Penn. R. R; Co., 162 Fed. 996, 997. §5. Suits against Commission. See Procedure Before Commission, §12; Reasonableness of Rates, §1 (g), (I). (a) Under the Interstate Commerce Act the parties who may maintain suits in the courts to enjoin, set aside, an- nul or suspend an order of the Inter- state Commerce Commission are not limited to those who were parties to the proceeding before it upon which the order was based. The proceeding in the. courts is not an appeal; it is a plenary suit in equity. The determina- tion of the question as to what parties may maintain such suits is left by the Interstate Commerce Act to the general rules and practices in equity, and under them any party whose rights of property are in danger of irreparable injury from an unauthorized order of the Commis- sion may appeal to a Federal Court of equity for relief. Peavey & Co. v. U. P. R. R. Co., 176 Fed. 409, 417. II. APPEAL. §6. In General. (a) The primary jurisdiction over unjust discrimination by carriers is with the Commission, the power of the courts being that of review and is confined in that review to questions of constitu- tional power and all pertinent questions as to whether the action of the Commis- sion is within the scope of the delegated authority under which it purports to have been taken. I. C. C. v. C. R. I. & P. Ry., 218 U. S. 88, 110, 30 Sup. Ct. 651, 54 L. ed. 946. (b) A railroad cannot complain of an order of the Commission where the grievance is one not against it but against the shipper. I. C. C. v. C. R. L & P. Ry., 218 U. S. 88, 109, 30 Sup. Ct. 651, 54 L. ed. 946. (c) The Supreme Court may not, under the guise of exerting judical power, usurp merely administrative func- tions by setting aside a lawful order upon its conception as to whether the COURTS, §6 (d)— §7 (a) 173 idministrative power has been wisely exercised. I. C. C. v. I. C. R. R., 215 J. S. 452, 470, 30 Sup. Ct. 155, 54 L. 3d. 280. I. C. C. V. C. & A. R. R. Co., !15 U. S. 479, 30 Sup. Ct. 163, 54 L. ed. 191. (d) In determining whether an order )f the Commission shall be suspended )r set aside, the Supreme Court must ;onsider (a) all relevant questions of !onstitutional power or right; (b) all )ertinent questions as to whether the idministrative order is within the scope )f the delegated authority under which t purports to have been made; and c) whether, even although the order )e in form within the delegated power, levertheless, it must be treated as lot embraced therein because its au- hority has been manifested in such an inreasonable manner as to cause it to )e within the elementary rule that the jubstance, and not the shadow, deter- nines the validity of the exercise of he power. I. C. C. v. I. C. R. R., 215 J. S. 452, 470, 30 Sup. Ct. 155, 54 L. ed. !80. I. C. C. V. C. & A. R. R. Co., 215 J. S. 479, 30 Sup. Ct. 163, 54 L. ed. 191. (e) In a petition to a Circuit Court, inder section 16 of the Act, to enforce m order of reparation it is not neces- sary that the order of the Commission )ffered as evidence state the cause of iction involved where the petition and he record show that the cause of ac- ion before the Circuit Court is the same as that before the Commission. Chicago, B. & Q. R. R. Co. v. Feintuch, L91 Fed. 482, 486. (f) In a petition to the Circuit Court ;o enforce an order of the Commission )efore the judge sitting without a jury, he full report of the Commission, con- aining a commingled statement of opin- on drawn from the facts and of con- clusions of law, as well as of the facts :hemselves, was admitted in. evidence, complainant stating to the court the lature of said report and offering it in evidence in. so far as the facts therein contained were material or competent. tlELD, the admission of said report was not prejudicial on the ground that t included the extraneous opinions and conclusions of the Commission. Chi- cago, B. & Q. R. R. Co. V. Feintuch, L91 Fed. 482, 487. (g) Where it is not contended that the Commission acted unlawfully or other- wise improperly in fixing rates, except that it failed to give weight, or not sufficient weight to this or that con- sideration, which the carrier thinks ought to have been weighed, and, if weighed, should have produced a aif- ferent opinion, the United States Cir- cuit Court cannot review the discretion of the Commission so acting in its legislative capacity. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 124. (h) The courts will not review the discretion of the Commission in selecting the element to be considered in fixing reasonable rates or in determining the weight to be given to particular ele- ments. L. & N. R. R. Co., V. I. C. C, 184 Fed. 118, 124. (i) Where the Interstate Commerce Commission exceeds the authority con- ferred upon it by the statute, the courts may review and enjoin its deci- sion. C. R. I. & P. Ry. Co. V. I. C. C, 171 Fed. 680, 688. (j) Under the Act as amended June 29, 1906, a suit in the courts to enjoin an order of the Commission fixing ter- minal charges is not confined to an ascertainment of what was determined by the Commission and to a considera-. tion of the sufficiency of the facts as determined by it to sustain the order, but on the contrary the hearing may be de novo and may include the taking and consideration of evidence other than that before the Commission. M. K. & T. Ry. Co. V. I. C. C, 164 Fed. 645, 649. (k) In a suit in equity to enjoin an order of the Interstate Commerce Com- mission fixing terminal charges the court should start with the presumption that the order is valid, and the burden of showing that the facts are such as to render the order invalid rests upon the carrier assailing it, and unless the case made on behalf of the carrier is a clear one the order ought to be upheld. M. K. & T. Ry. Co. v. I. C. C, 164 Fed. 645, 650. III. UNITED STATES COURTS. See Overcharges, §4. §7. Concurrent Jurisdiction. See Interstate Commerce Commis- sion, §2. (a) In cases of the exaction of a rate higher than that in the published tariff, the shipper may go into court 174 COURTS, §8 (a)— §9 (f) In the first instance, but the Act also appears to give the Commission and courts concurrent jurisdiction in this respect. Laning-Harris Coal & Grain Co. V. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 39. §8. Exclusive Jurisdiction. (a) The jurisdiction of all actions brought under the remedial sections of the Interstate Commerce Act to en- force its provisions, lies exclusively in the United States Courts. Pittsburgh, C. C. & St. L. Ry. Co. v. Wood (Ind., 1908), 84 N. E. 1009, 1012. (b) The United States courts and the Interstate Commerce Commission have exclusive jurisdiction of actions based upon the Interstate Commerce Act, or brought to enforce a right cre- ated by the Act. Hardaway v. South- ern Ry. Co. (S. C, 1912), 73 S. E. 1020, 1023. (c) The exclusive jurisdiction con- ferred upon the United States courts in all actions for violation of the inter- state commerce law does not apply to an action to recover overcharges paid upon shipments made under a contract which was not made in violation of that Act. K. C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 60, 99 P. 819. §9. Original Jurisdiction. See Allowances, §2 (b). (a) The conclusion of the Commis- sion is subject to review, but when supported by evidence is accepted as final; not that its decision, involving as it does so many and such vast pub- lic interests, can be supported by a mere scintilla of proof, but the court will not examine the facts further than to determine whether there was sub- stantial evidence to sustain the order. I. C. C. V. U. P. R. R. Co., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. ed. 308. (b) On February 22, 1911, plaintiff sued in a state court of Tennessee to recover the excess exacted above the lawfully published rate on lumber. The suit was removed to a United States Circuit Court on the ground of diversity of citizenship. The claim was never presented to the Interstate Commerce Commission. HELD, under sections 9 and 16 of the Act as amended June 18, 1910, the state court had no jurisdic- tion to entertain the suit and therefore the federal court could not acquire jurisdiction by the removal proceedings. Darnell v. I. C. R. R. Co., 190 Fed. 656, 658. (c) By the amendments of 1906 the original jurisdiction of a United States court under section 9 of the Act has not been entirely destroyed, but it still may redress "such wrongs as can, consistently with the context of the Act, be redressed by courts without previous action by the Commission," and, when- ever a complainant comes into the courts to redress a wrong which he al- leges has resulted from some discrim- inatory act of a common carrier, it will always be necessary in the first instance to determine whether or not it is a wrong which can be redressed by the courts. Langdon v. Pennsylvania R. R. Co., 186 Fed. 237, 240. (d) Upon the question whether a suit by a shipper charging discrimina- tory practices and payments should first be brought before the Commission, the court, upon motion of defendant to dismiss on the ground that a United States Circuit Court had no jurisdiction, denied the motion and refused to pass upon the question of jurisdiction until the jury should determine whether the payments and practices involved were made generally to all owners of lateral roads or were made simply to partic- ular shippers. Langdon v. Penn. R. R. Co., 186 Fed. 237, 241. (e) Where the Commission has pri- mary jurisdiction over a practice affect- ing rates, original jurisdiction cannot be conferred on a United States Circuit Court to hear the case by stipulation of the parties. Mitchell Coal & Coke Co. V. Penn. R. R. Co., 183 Fed. 908, 909. (f) The Interstate Commerce Com- mission is an administrative tribunal and the wisdom and expediency of the lawful exercise of the discretion dele- gated to it under the Constitution and the statutes is not reviewable by the courts. But the power is vested in and the duty is imposed upon the United States Circuit Courts to relieve from orders of the Commission which deprive complain- ants of their property without due proc- ess of law or take it without just com- pensation, in violation of the fifth amendment to the Constitution, from orders which are beyond the limits of the power delegated to the Commission COURTS, §9 (g)— §10 (a) 175 ind from orders which, though in form vithin its delegated power, evidence so mreasonable an exercise of it that they ire in substance beyond it. Peavey & :o. V. U. P. R. R. Co., 176 Fed. 409, 418. (g) Where the reasonableness or un- easonableness of demurrage rules is lot involved and the question is one )f interpretation as to what the sched- jle of rates in regard to the charges 'or demurrage actually is, a United States Circuit Court has original juris- iiction without prior application to the [nterstate Commerce Commission. Hite V. Central R. of N. J., 171 Fed. 370, 372. (h) Under section 9 of the Act the courts have jurisdiction to entertain an original suit at law by a shipper against a carrier where the latter has extended free time to plaintiff's competitors for peddling goods from its cars after the expiration of the free time period al- lowed in its published tariffs and has denied the same privilege to plaintiff, and it is not necessary first to resort to the Interstate Commerce Commission since no question of the reasonableness of the published regulation is involved. Lyne v. D. L. & W. R. R. Co., 170 Fed. 847, 849. (i) United States courts may, in their discretion, permit the parties to any complaint in the matter involved before the Interstate Commerce Com- mission to intervene as defendants in a suit to enjoin the order of the Com- mission, where such intervention does not delay the progress of the suit. D. 894^ ^* ^' ^' ^''' ^- ^' ^' ^•' ^^^ ^^^^ I. C. C, 164 Fed. PirPnit n '/^^ ^^* ^ ^°^t«^ States Circuit Court has original jurisdiction m a suit by a carrier for demurrage charges, where the reasonableness of such charges is not involved and where the question in dispute is the meaning of rules filed with the Interstate Com merce Commission, and a prior proceed- ing before the Commission is not nec- essary. Central R. R. Co. of N J v Hite, 166 Fed. 976, 978. 9q^^iQn?'''lt'' ^^^ ^""^ ""^ amended June ^», 1906, the courts have jurisdiction to enjoin an order of the Interstate commerce Commission reducing ter- minal charges where the order results from a misconception and misapplication or the law to conceded or undisputed facts. Stickney v. 638, 644. (1) Under the Act as amended June 29, 1906, United States courts have juris- diction to enjoin the putting into effect of interstate rates, made by an unlawful combination of carriers in restraint of commerce, prior to the institution of a proceeding before the Interstate Com- merce Commission to test the reason- ableness of such rates where the evi- dence indicates that the same are un- reasonable and confiscatory. Macon Grocery »jo. v. A. C. L. R. R. Co., 163 Fed. 738, 753. (m) United States courts under the Act as amended June 29, 1906, have no jurisdiction to award damages for freight charges collected on cross-ties under duly published tariffs prior to the testing of the reasonableness of such rates by a complaint before the Interstate Commerce Commission, al- though the question involved is one of the relative reasonableness of rates and the Commission has passed upon the same relative classification in a pro- ceeding between other parties, and has held that the rates on cross-ties should not, as in the case in question, ex- ceed the rate on lumber. Howard Supply Co. V. C. & O. Ry. Co., 162 Fed. 188, 191. (n) A United States Circuit Court has no jurisdiction to enjoin the putting into effect of a schedule of interstate rates without prior application to the Interstate Commerce Commission, \yhich body is vested with exclusive jurisdic- tion over questions of the reasonable- ness of interstate rates under the Inter- state Commerce Act as amended June 1906. A. T. & S. F. Ry. " " 29 Co. V. FosterLumber Co. (Okla., 1911). 122 P. 139. ,V. UNITED STATES SUPREME COURT. §10. In General. (a) The Supreme Court of the United States will not on appeal reverse an order of preliminary injunction granted by the Commerce Court to restrain an nrdei of the Interstate Commerce Com- mtslon'forbidding carriers to make ce. tain allowances, except where there Has been anibuse of discretion by the Com- merce Court, and where it plainly ap- ^ars tbat the preliminary order was m 176 COURTS, §10 (b)— §11 (e) effect a decision by the Commerce Court of the whole controversy on its merits or where it is demonstrable that grave detriment to the public interests will result from a failure of the Su- preme Court finally to dispose of the controversy without remanding the case. U. S. V. B. & O. R. R. Co., 225 U. S. 306, 32 Sup. Ct. 817, 821, 56 L. ed. 1100. (b) Where in a suit in a state court to recover an overcharge the interpre- tation of the Act is involved to deter- mine what were the legally applicable rates on the shipments in question, the Supreme Court of the United States has jurisdiction to review the decision of the state courts. Kansas City So. Ry. V. Albers Comm. Co., 223 U. S. 573, 591, 32 Sup-. Ct. 316, 56 L. ed. 516. (c) The question of the legality of an order of the Commission reducing rates does not become moot on appeal to the United States Supreme Court merely because the period to which the order applied the new rates prescribed has expired, in view of the public in- terests involved and in view of possible claims for reparation. S. P. Co. v. I. C. C, 219 U. S. 433, 452, 31 Sup. Ct. 288, 55 L. ed. 283. (d) The Commission ordered defend- ant carrier to desist for a period of two years from Nov. 15, 1908, from grant- ing to a shipper a certain unduly pref- erential wharfage privilege. The bill in equity to enjoin the order was argued Dec. 9, 1910, in the Supreme Court of the United States. HELD, in view of the public character of the questions involved and the fact that orders of the Commission are continuing, the appeal should not be dismissed on the ground that, the order of the Commission hav- ing expired, the case had thereby be- come moot. So. Pac. Terminal Co. v. I. C. C, 219 U. S. 498, 515, 31 Sup. Ct. 279, 55 L. ed. 310. V. STATE COURTS. See Discrimination, §1 (q), §16; In- terstate Commerce Commission, §2; Loss and Damage, §5; Over- charges, §3; Tariffs, §6 (m), (n). §11. In General. (a) An action cannot be maintained against a carrier in a state court under sections 9 and 22 of the Act to recover reparation for unjust discrimination in charging a published rate of 50c higher per ton for coal loaded from wagons than the published rate when the coal is loaded from tipples, where no prior application has been made to the Com- mission for relief. Robinson v. B. & O. R. R. Co., 222 U. S. 506, 509, 32 Sup. Ct. 774, 56 L. ed. 288. (b) In a suit in a state court to recover reparation for unjust discrim- ination, the court is not required by sec- tion 14 of the Act, in order to make the reports of the Commission comi>etent evi- dence, to take judicial notice of the de- cisions of the Commission where they are not mentioned in the pleadings or in the agreed statement of facts. This provision makes the decisions of the Commission as published admissible in evidence without other proof of their genuineness, but does not relieve liti- gants from the necessity of offering them in evidence. Robinson v. B. & O. R. R. Co., 222 U. S. 506, 512, 32 Sup. Ct. 114, 56 L. ed. 288. (c) A state court has jurisdiction to compel by mandamus an interstate car- rier to switch a car from a shipper's mill located on a spur track to its main track, thence a short distance on its main track, thence by a connecting switch to an intersecting interstate car- rier, although the car is destined to another state, the purpose of such order being to prevent discrimination among shippers in local switching service. Mis- souri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 623, 29 Sup. Ct. 214, 53 L. ed. 352. (d) Where a carrier of an interstate shipment erroneously collects a sum in excess of the published charge, a state court has jurisdiction to entertain a suit to recover the excess, since the case is not one involving the reason- ableness of rates, and, therefore, it is not necessary for the shipper first to resort to the Interstate Commerce Com- mission for relief. Kansas City S. Ry. Co. V. Tonn (Ark., 1912), 143 S. W. 577, 580. (e) Where a carrier has by mis- take collected charges in excess of its published interstate rates, a state court is not deprived by the Interstate Com- merce Act of jurisdiction over an ac- tion by the shipper to recover the ex- cess. C. R. I. & P. Ry. Co, V. Lena Lumber Co. (Ark., 1911), 137 S. W. 562, 562. COURTS, §11 (f) — (n) 177 (f) Under the Carmack amendment to th« Hepburn Act making the initial carrier liable for loss or damage caused by connecting carriers, a state court has jurisdiction to entertain an action against an initial carrier for damages caused by a connecting carrier in fail- ing to carry an interstate shipment of peaches with reasonable dispatch and to keep the same properly iced. St. L. & S. F. R. R. Co. V. Heyser (Ark., 1910), 130 S. W. 562, 564. (g) A state court has jurisdiction to entertain a suit by a carrier to recover the balance of its published interstate rate, since the indebtedness sued on grows out of a contract which is only an incident of an interstate shipment, and is not a liability created by the Interstate Commerce Act; nor does the right to collect arise from sections 8 and 9 of such Act, which declare a liability only against the carrier for violation of the Act. St. L. S. W. Ry. Co. V. Gramling, 97 Ark. 353, 357, 133 S. W. 1129. (h) The Interstate Commerce Com- mission is not vested with jurisdiction over suits to recover damages for de- lay in the delivery of an interstate ship- ment, so as to prevent the state courts from entertaining such actions. Pitts- burgh, C. C. & St. L. Ry. Co. V. Knox (Ind., 1912), 98 N. E. 295, 299. (i) Under the Act as amended in 1906, a state court has no jurisdiction to determine whether an express com- pany shall, as to interstate shipments, deliver packages to the residences and places of business of consignees, since there has been an assumption of exclu- sive jurisdiction by Congress over such shipments down to the point where the transit is entirely at an end. State v. Adams Express Co., 171 Ind. 138, 144, 85 N. E. 337, 966. (j) The provision of the Act as amended June 29, 1906, and April 13, 1908, relating to attorney's fees do not give the right to recover such fees in a state court in a suit for loss or damage in transit. Blair & Jackson v. Wells- Fargo Co. (la., 1912), 135 N. W. 615, 620. (k) A state court has jurisdiction to enforce the Carmack amendment to the Hepburn law, making the initial carrier liable for loss occurring on the lines of connecting carriers. L. & N. R. R. Co. V. Warfield, 6 Ga. App. 550, 551, 65 S. B. 308. (1) A carrier filed an interstate rate with the Interstate Commerce Commis- sion, but failed to post the same in the depot at the point of origin in question, as required by section 6 of the Inter- state Commerce Act as amended June 29, 1906. Plaintiff shipper and the car- rier's agent searched the tariff files of the depot for a possible increase in rates, and the agent made further inquiries of the officers of the carriers. Plaintiff pur- chased grain in reliance on a 10c rate posted at the depot. A 13i^c rate had, in fact, been previously filed with the Commission and gone into effect, and plaintiff was compelled to pay same. HELD, plaintiff could recover in an action In a state court for damages for the failure of the carrier to post its rates at the depot, and his right so to recover was not defeated by the contention that to permit recovery would render nuga- tory the provisions of the Interstate Com- merce Act requiring carriers to charge the schedule rates. I. C. R, R. Co. v. Henderson Elevator Co., 138 Ky. 220, 227, 127 S. W. 779. (m) Where the plaintiff, in a suit for excessive charges, resulting in unjust discrimination, does not rely upon the Interstate Commerce Act, but bases his claim on common law principles, an action for such recovery may be brought in a state court, although the shipments involved were made across state lines. Missouri, K. & T. Ry. Co. v. The New Era Milling Co., 79 Kans. 435, 448, 100 P. 273. (n) A carrier failed to post an inter- state rate in the depot at the point of origin, as required by section 6 of the Interstate Commerce Act as amended June 29, 1906. A shipper purchased grain and relied on the lower rate previously in effect and on file at the depot. He was compelled to pay the higher rate, un- posted, but filed with the Interstate Com- merce Commission. HELD, a state court had jurisdiction to entertain an action for damages for a failure to post the rate, under section 22 of the Interstate Commerce Act, providing that "nothing in this Act contained shall in any way abridge or alter the remedies now exist- ing at common law or by statute, but the provisions of this Act are in addition to such remedies." I. C. R. R. Co. v. Henderson Elevator Co., 138 Ky. 220, 229, 127 S. W. 779. 178 COURTS, §11 (o) — (x) (o) Since an action against an initial carrier to recover for damage to an inter- state shipment caused by connecting car- rier, though brought under the Carmack amendment to the Hepburn law, is not an action based on a violation of the Interstate Commerce Act, but is an action based on the injury to the prop- erty, the state courts have jurisdiction, especially in view of the provision "that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." L. & N. R. R. Co. V. Scott, 133 Ky. 724, 729, 118 S. W. 990. (p) Under the Interstate Commerce Act as amended a shipper cannot sue in a state court to recover excessive demurrage charges exacted of him on an interstate shipment, but must first resort to the Interstate Commerce Commission, which has exclusive original jurisdiction over such shipment. Starks Co. v. Grand Rapids & I. Ry. Co. (Mich., 1911), 131 N. W. 143, 145. (q) The construction of the Hepburn Act as amended by the Carmack amend- ment, and the scope of its operation, raise a federal question, and as to such question the state courts will follow and are bound by the decisions of the Fed- eral courts. But contracts for reduced rates not being affected ' by such law, no federal question arises and no federal right is involved, and hence the state courts are free to apply their own rules to their construction. McElvain v. Rail- road, 151 Mo. App. 126, 146, 131 S. W. 736. (r) An interstate carrier owes a com- mon law duty to furnish bulkheads with its cars for the transportation of grain, and for a failure so to do a shipper may recover the expense incurred in supply- ing such bulkheads in an action in the state court, and since the duty of the carrier does not arise by force of the Interstate Commerce Act, the shipper is not precluded from suing in such court by section 9 of the Act, which provides that any person claiming to be damaged by a carrier subject to the Act may sue in the district or circuit court of the United States or make complaint to the Interstate Commerce Commission, (Kruse and Spring. JJ., dissenting.) Loomis v. Lehigh Valley R. R. Co. (N. Y., 1910), 132 N. Y. Sup. 138, 140. (s) Although the Interstate Commerce Commission mistakenly calculates the number of miles between points in differ- ent states and thereby approves an er- roneous passenger rate filed with it, a state court has no jurisdiction to alter the rate adopted. Lipman v. A. C. L. R. Co. (S. C, 1912), 73 S. E. 1026, 1027. (t) In a suit in a state court lo re- cover an excess collected on interstate shipments over and above the published rates, evidence that the carrier in the past carried the material in question as lumber is admissible on the question as to what classification applies, where the jury is instructed that no device or agreement or custom of dealing can avail to make the shipment other than what it really is, and that they must determine its real character. Hardaway v. Southern Ry. Co. (S. C, 1912), 73 S. E. 1020, 1025. (u) A state court has jurisdiction under section 22 of the Act, providing that nothing therein shall abridge or alter existing remedies at common law, to entertain a suit to recover the excess collected by a carrier over and above the interstate rates published and filed with the Commission, since the cause of action arises at common law. Hardaway V. Southern Ry. Co. (S. C, 1912), 73 S. E. 1020, 1022. (v) A state court has jurisdiction, in a suit by a carrier to collect a greater charge for a shorter than for a longer haul, to entertain a defense by the ship- per that the carrier had no permission from the Interstate Commerce Commis- sion to make such charge and was not authorized to do it on account of dis- similar circumstances and conditions. (Haney, J., dissenting.) Great North- ern Ry. Co. V. Loonan Lumber Co. (S. D., 1910), 125 N. W. 644, 646. (w) A suit brought against an initial carrier to recover for loss or damage to an interstate shipment caused by a con- necting carrier, under the provision of the Carmack amendment, is not a suit for the violation of the Interstate Com- merce Act and one required by section 8 of such Act to be brought in the Fed- eral courts or before the Interstate Com- merce Commission, but is a suit for the value of property, and the state courts have jurisdiction, therefore, to entertain the same. Galveston, H. & S. A. Ry. Co. V. Piper Co., 52 Tex. Civ. App. 568, 572, 115 S. W. 107. (x) A state court has jurisdiction of an action brought under the Carmack amendment against an initial carrier for COURTS, §11 (y)— CREDIT ACCOUNT, §2 (a) 179 nondelivery of interstate freight by the connecting carriers. Galveston, H. & S. A, Ry. Co. V. Crow (Tex., 1909), 117 S. W. 170, 170. (y) A state equity court has no juris- diction to enjoin the filing of a schedule of increased interstate rates with the Interstate Commerce Commission, as by the Act the Commission has exclusive original jurisdiction to determine the reasonableness of such rates. Thacker Coal & Coke Co. v. N. & W. Ry. Co., 67 W. Va. 448, 454, 68 S. E. 107. (z) Where the Interstate Commerce Commission has held a published rate to be excessive, a state court has juris- diction under section 22 of the Act to entertain an action by a shipper to re- cover the excess exacted over and above the reasonable rate prescribed. Robinson v. B. & O. R. R. Co., 64 W. Va. 406, 411, 63 S. E. 323. (aa) In an action in a state court for unjust discrimination, the complaint does not state a cause of action where it neither alleges that the carrier has not complied with the requirements of the Interstate Commerce Act with reference to filing of rates nor alleges that by the rate charged it exceeded the rate shown in the schedule. Lilly Co. v. Northern Pac. Ry. Co. (Wash., 1911), 117 P. 401, 402. (bb) The common law gives a shipper a right of action against a common car- rier for a discrimination in freight rates between the shipper and another simi- larly situated whenever the effect of the discrimination is to injure the shipper in his trade or business. Lilly Co. v. Northern Pac. Ry. Co. (Wash., 1911), 117 P. 401, 402. (cc) Where a carrier represents that it is collecting of all shippers switch- ing charges on interstate shipments levied by a connecting carrier and is, in fact, absorbing such charges for favored shippers, a state court has jurisdiction in an action for damages for discrimina- tion, since, under sections 9 and 22 of the Act, the state courts are not deprived of jurisdiction over actions for breaches of duty by the carriers which would give rise to causes of action at common law or under a state statute. Lilly Co. v. Northern Pac. Ry. Co. (Wash., 1911), 117 P. 401. 402. CREDIT ACCOUNT. I. EXTENSION OF CREDIT FOR CHARGES. §1. Right to extend credit. §2. Right to discriminate. §3. Criminal liability. CROSS REFERENCES. See Evidence, §19. I. EXTENSION OF CREDIT FOR CHARGES. §1. Right to Extend Credit. (a) If there is any risk in carrying a shipment without payment of charges the carrier must in fulfillment of its own duty under the law resolve that risk against the consignor and collect in ad- vance. Boise Commercial Club v. Adams Express Co., 17 I. C. C. 115, 121. (b) It is a carrier's right to demand prepayment on all shipments, and it may not distinguish between persons who pay in advance and those who do not. Boise Commercial Club v. Adams Ex- press Co., 17 L C. C. 115, 121. (c) To accept shipment without pre- payment is no more than to extend credit to the consignor, and this within reason- able and nondiscriminatory limits the carrier may do. Boise Commercial Club V. Adams Express Co., 17 I. C. C. 115, 121. (d) Carriers may not lawfully make a difference in rates based upon the time of payment of charges. Boise Com- mercial Club V. Adams Express Co., 17 I. C. C. 115, 121. §2. Right to Discriminate. (a) The requirement of the prepay- ment of charges from one shipper by a carrier for the transportation of freight, while no requirement is made of other shippers similarly situated, at a time when there existed a custom or usage for the carrier to advance the charges of connecting carriers, to deliver the freight to the consignees, to hold bills for freight until claims arising out of errors in transporting were adjusted, and then to collect them, does not subject the shipper denied such credit to undue prej- udice or discrimination within the mean- ing of section 3 of the Act. (Hook, J., dissenting.) Gamble-Robinson Commis- sion Co. V. C. & N. W. Ry. Co., 168 Fed. 161, 17L 180 CREDIT ACCOUNT, §2 (b)— CRIMES (b) Where a new tariff requiring prepayment of charges has become ef- fective prior to a shipment, the carrier is not bound to reconsign without pre- payment of charges a car belonging to a shipper to whom it has been accus- tomed to extend credit. Sage & Co. v. I. C. R. R. Co., 18 I. C. C. 195, 196. (c) A shipment of lumber consigned to East St Louis, 111., arrived at Bixby, 111., 1:45 P. M., Aug. 31, 1907. On the night of Aug. 31 complainant mailed a written order from Kansas City direct- ing delivery to G-ranite City, 111. This order was not received until Monday, Sept. 2. Under the published tariff the free time allowed for reconsignment was 24 hours from the first 7 A. M. interven- ing after arrival of the shipment, Sun- days and legal holidays excluded. Sept. 2 was Labor Day. Delivery was not effected at Granite City until 8:30 A. M., Sept. 5, and delay in reconsigning the car after receipt of order was due to the fact that the consignee was not on the credit list of the defendant carrier, and it was necessary to take up with consignee the question of payment of freight charges. Defendant company assessed a car service charge of $1 per day for Sept. 4 and 5. HELD, such car service charge was improperly collected and should be refunded. Beekman Lum- ber Co. V. St. L. S. W. Ry. Co., 14 L C. C. 532, 534, 535. §3. Criminal Liability. See Crimes, §3. (a) Defendant railroad in a certain coal district was accustomed to collect at the end of the month for shipments of coal made during the month. In pursuance of a previous arrangement it accepted promissory notes from one shipper in part payment of the freight charges for the month on shipments sent as pre- paid, while at the same time exacting, cash payments from other competing shippers in the same district. The notes given by the favored coal company were later merged into bonds of that com- pany. HELD, defendant was criminally liable under the Elkins Act as amended June 29, 190G, for a "discrimination in respect to transportation." U. S. v. Sunday Creek Co., 194 Fed. 252, 254. (b) A carrier, under the Act as amended in 1906, practices a discrimina- tion in respect to transportation in favor of one shipper and against others of the same class, shipping the same commodi- ty, from the same points and under sub- stantially the same conditions, by the device of extending credit to such fa- vored shipper for the freight charges on such shipments by it while exacting and collecting cash compensation for sub- stantially similar shipments from the other shippers in question. U. S. v. Hocking Valley Ry. Co., 194 Fed. 234, 246. (c) Where an indictment for violation of section 6 of the Act as amended in 1906 charges that defendant carrier col- lected a portion of the freight charges from a favored shipper and extended credit for the balance, it is not insuffi- cient by reason of the failure specifically to rebutt the possibility that the portion collected represented the full amount due the carrier under its published rates for its part of the haul. U. S. v. Hocking Valley Ry. Co., 194 Fed. 234, 246. (d) Defendant railroad in a given coal district was accustomed to collect at the end of the month for shipments of coal made during the month. In pursuance of a previous arrangement it accepted promissory notes from one shipper in part payment of the freight charges for the month on shipments sent as prepaid while at the same time exacting cash payments from other competing shippers in the same district. The notes given by the favored coal company were later merged into bonds of that company. HELD, defendant was criminally liable under section 6 of the Act, as amended in 1906, for a wilful failure to observe its tariffs on the ground of both accept- ing a "less or different compensation" and of extending "privileges or facili- ties" not specified in its tariffs. U. S. V. Hocking Valley Ry. Co., 194 Fed. 234. 241. CROSS REFERENCES IN TARIFF. See Reconsignment, §4 (e). CUSTOM. See Blanket Rates, §5. CRIMES. I. THE ELKINS ACT. §1. Constitutionality. §2. Construction. II. DISCRIMINATION. §3. Credit account, in. FREE TRANSPORTATION. §4. In general. CRIMES, §1 (a) — (d) 181 ly. MISBILLING. §5. In general. V. OVERCHARGES. §6. In general. VI. REBATING. A. Elements of offense. §7. In general. §8. Intent and knowledge. §9. Payment. §10. Posting of tariff. §11. Route and "common ar- rangement." §12. Transportation. B. Number of offenses, §13. Payment. §14. Shipments. C. Liability. §15. Act of agent. §16. Connecting carrier. VII. INDICTMENT. A. Charging elements of offense. §17. In general. §18. Concession or rebate. §19. Description of device. §20. Language of statute. §21. Payment. §22. Posting of tariff. §23. Route. B. Joinder of defendants. §24. Principal and agents. C. Proof and variance. §25. In general. D. Venue. §26. In general. /III. DEFENSES. §27. Former jeopardy. §28. Statute of limitations. IX. PROCEDURE. §29. Province of court. §30. Province of jury. §31. Extent of verdict. X. PENALTIES. §32. Excessive fine. XI. STATE REGULATION. §33. In general. CROSS REFERENCES. See Advertising, II; Allowances, iV, VII, VIM, §8 (7): Credit Account, §3; Demurrage, §11 (a), (b); Divi- sions, IV; Overciiarges, III; Spe- cial Contract, §3; Through Routes and Joint Rates, §2 (b); Transpor- tation, §3 (b); Undercharges, §2 (d). . THE ELKINS ACT. 1. Consltitutionality. See Constitutional Law. (a) The clause in the Elkins Act to lie effect that in construing and enforc- ig the criminal provisions against re- bating, the act, the omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or fail- ure of such carrier, as well as of that person, is not unconstitutional as imput- ing to an individual engaged as a carrier criminal acts of his agent or as imputing to a corporation the commission of crim- inal offenses, or as punishing its inno- cent stockholders without due process of law. N. Y. C. & H. R. R. R. v. U. S., 212 U. S. 481, 495, 496, 29 Sup. Ct. 304, 53 L. ed. 613; N. Y. C. & H. R. R. R. V. U. S., 212 U. S. 500, 29 Sup. Ct. 309, 53 L. ed. 624. (b) The provision of the Elkins Act making it a crime for a shipper to re- ceive a rebate whereby property is trans- ported at less than the published rates, which provision applies to a shipment under a through bill of lading from an interior port of the United States via rail and an ocean carrier to a European port, is not in violation of Article I, Sec. tion 9, Paragraph 5, of the Constitution of the United States forbidding the lay- ing of a tax or duty on exports, or as the giving of preference by a regulation of commerce or revenue to the ports of one state over those of another. Armour Packing Co. v. U. S., 209 U. S. 56, 79, 80, 28 S. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 S. Ct. 439, 52 L. ed. 698. (c) The provision of the Elkins Act authorizing the prosecution against a shipper for receiving a rebate or con- cession in any district through which the transportation may have been continuous is not in violation of the sixth amendment of the Constitution of the United States, requiring crimes to be prosecuted and punished in the. state or district where the same are committed, since this con- stitutional provision does not require the prosecution of the defendant in the district where he resides at the time of the commission of the offense, or where he may happen to be at that time, but only requires that he be prosecuted where the offense is committed. Armour Packing Co. v. U. S., 209 U. S. 56, 76, 28 S. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 S. Ct. 439, 52 L. ed. 698. (d) The Elkins Act, which provides that a shipper guilty of receiving a con- 1S2 CRIMES, §1 (e)— §3 (b) cession from a rate published and filed, as required by the Act, is guilty of a mis- demeanor, is not unconstitutional, upon the ground that it does not permit the shipper, when prosecuted, to prove the unreasonableness of the established rate, and the reasonableness of the rate paid. U. S. V. Vacuum Oil Co., 158 Fed. 536, 539. (e) The Elkins Act is not unconsti- tutional as an ex post facto law on the ground that it makes criminal the pay- ment of rebates at a date after the date of its passage, in pursuance of an agree- ment to pay such rebates entered into prior to the date of its passage. U. S. V. G. N. R. Co., 157 Fed. 288, 290. (f) The Act as amended by the El- kins Act is not unconstitutional on the ground that inasmuch as the common law right to enforce a reasonable rate of carriage, by a legal proceeding, is taken away, so that not only the regulation of carriers but of shippers is vested in the Interstate Commerce Commission, the statutes constitute a deprivation of property rights without due process of law. U. S. V. G. N. R. R. Co., 157 Fed. 288, 291. §2. Construction. (a) The Elkins Act proceeded upon broad lines and was evidently intended to effectuate the purpose of Congress to require that all shippers should be treat- ed alike, and that the only rate charged to any shipper for the same service under the same conditions should be the one established, published and posted as required by law. It is not so much the particular form by which, or the motive for which, this purpose was ac- complished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive con- cessions and rebates. Armour Packing Co. V. U. S., 209 U. S. 56, 72, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (b) The Elkins Act is not only to be read in the light of previous legislation, but the purpose which Congress evi- dently had in mind in the passage of the law is also to be considered. Ar- mour Packing Co. v. U. S., 209 U. S. 56, 72, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (c) A criminal charge under the El- kins Act against a shipper for receiving a rebate whereby property is transported from Kansas City to New York City at less than the published rates involves a single continuous offense, not a series 1 of offenses, although it is continuously! committed in each district through which the transportation is received at the pro- hibited rate. Armour Packing Co. v. U. S., 209 U. S. 56, 77, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. v. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (d) The provision of the Elkins Act making it criminal for a shipper to re- ceive any rebate whereby property is transported at less than the published rate applies to a shipment on a through bill of lading from Kansas City, Kan., via New York City, and thence by ocean carrier to a European port. Armour Packing Co. v. U. S., 209 U. S. 56, 78, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (e) Under the Elkins Act of Feb. 19, 1903, three distinct offenses are created; first, the soliciting of a rebate, conces- sion or discrimination in respect of the transportation of property in interstate or foreign commerce; second, the ac- ceptance of any such rebate, concession or discrimination; third, the receipt of any such rebate, concession or discrim- ination. U. S. V. Bunch, 165 Fed. 736, 739. II. DISCRIMINATION. §3. Credit Account. (a) A carrier, under the Act as amended in 1906, practices a discrimina- tion in respect to transportation in favor of one shipper and against others of the same class, shipping the same commod- ity from the same points and under sub- stantially the same conditions, by the de- vice of extending credit to such favored shipper for the freight charges on such shipments by it, while exacting and col- lecting cash compensation for substan- tially similar shipments from the other shippers in question. U. S. v. Hocking Valley Ry. Co., 194 Fed. 234, 246. (b) Defendant railroad in a certain coal district was accustomed to collect at the end of the month for shipments of coal made during the month. In pur- suance of a previous arrangement it ac- cepted promissory notes from one ship- CRIMES, §3 (c)— §5 (a) 183 er in part payment of the freight harges for the month on shipments ent as prepaid, while at the same time xacting cash payments from other com- >eting shippers in the same district, ^he notes given by the favored coal ompany were later merged into bonds f that company. HELD, defendant was riminally liable under section 6 of the k.ct, as amended in 1906, for a wilful allure to observe its tariffs on the Tound of both accepting a "less or dif- erent compensation" and of extending privileges or facilities" not specified in ts tariffs. U. S. v. Hocking Valley Ry. :;o., 194 Fed. 234, 241. (c) The word "discrimination" as ised in the Elkins Act is employed in ts common sense, as well as with what- ever enlarged or more definite meaning he context of the amendment of 1906 fives to it. Thus a shipper who is per- mitted to settle his charges by paying a 'less or different compensation" to the carrier is accepting or receiving a "dis- Timination." U. S. v. Sunday Creek Co., .94 Fed. 252, 254. (d) Defendant railroad in a given coal listrict was accustomed to collect at the 3nd of the month for shipments of coal made during the month. In pursuance 3f a previous arrangement it accepted promissory notes from one shipper in part payment of the freight charges for the month on shipments sent as pre- paid, while at the same time exacting cash payments from other competing shippers in the same district. The notes given by the favored coal company were later merged into bonds of that com- pany. HELD, defendant was criminally liable under the Elkins Act as amended June 29, 1906, for a "discrimination in respect to transportation." U. S. v. Sun- day Creek Co., 194 Fed. 252, 254. (e) The Lehigh Valley R. R. Co. car- ries among its assets $10,537,000 non-in- terest bearing certificates of indebted- ness of the Lehigh Valley Coal Co. At 5 per cent per annum the interest on these certificates would be $526,850. HELD, the latter sum is in all substantial respects a rebate to the Lehigh Valley Coal Co., giv- ing it to that extent an unlawful advan- tage over independent dealers. Me.eker 6 Co. V. Lehigh Valley R. R. Co., 21 J. C. C. 129, 161. III. FREE TRANSPORTATION. See Express Companies, §5; Special Contract, §1 (a), §2 (a), (zz), (aaa), (bbb); Tap Lines, §8. §4. In General. (a) Where a defendant obtains a free ticket from the person to whom it is rightfully issued by the carrier, transfers it to one who he knows has no lawful right to use it, for the purpose of violat- ing the law, and such person actually uses the same, defendant is guilty of violating section 1 of the Act as amend- ed June 26, 1909, and April 13, 1908, mak- ing any person not within the list of ex- ceptions liable to a penalty who "uses any such free ticket." U. S. v. Martin, 176 Fed. 110, 113. (b) Defendant, an employe of a rail- road company, and entitled to receive a pass, delivered his pass to one Pounds, who was not an employe and not en- titled to use or receive the same, but did use it in an interstate journey. De- fendant was prosecuted under section 1 of the Act of June 29, 1906, prohibiting the use of free transportation by any- one except certain persons enumerated in the Act. HELD, under this section, the statute intended • that all persons making use of any interstate free pass should be liable to the penalty prescribed by the statute, unless they are excepted by the terms thereof, and that Pounds not being so excepted, defendant was liable for aiding and abetting an act in violation of the statute. U. S. v. Wil- liams, 159 Fed., 310, 313. IV. MISBILLING. See Classification, §8. §5. In General. (a) Defendant railroad extended from Montpelier, Vt., to Wells River, Vt., 39 miles. The carriers connecting Echo, Pa., with Montpelier established a joint tariff on coal to that point of $3.55, and to Wells River, and intermediate stations on defendant's line, of $3.80. The tariff provided that to any point of destination named, the rate would be the same as to the next more distant point that was named. Defendant's division of the through rate of $3.80 was 75c. Defend- ant had its coal billed to Wells River. It was transported only to Montpelier and was unloaded at defendant's coal pocket, which were some 6-10 of a mile from the point in Montpelier at which defendant received the coal from the 184 CRIMES, §5 (b)— VI delivering carrier and were within the limits of Montpelier. East Montpelier was the "next more distant" point named in the tariff. Defendant by this process subtracted its share of 75c from the $3.80 charge to Wells River and thus secured a rate to Montpelier of $3.50. HELD, defendant was not criminally liable un- der the Elkins Act for obtaining trans- portation at less than the legal rate by means of false billing. Montpelier & W. R. R. R. V. U. S., 187 Fed. 271, 272. (b) The fact that the testimony in a reparation case showed complainant had knowingly misbilled a shipment of junk as scrap iron will form the subject of further inquiry under the criminal pro- visions of the Act Radinsky v. O. S. L. R. R. Co., 21 I. C. C. 243, 245. (c) The local haul to a junction joint is a different service from that performed to the same point as part of a through haul to a destination beyond, and the fact that fictitious billing may be resort- ed to to secure the unlawful application of the division of a joint rate for that service is no reason for condemning the lawful practice of billing bona fide through shipments to ultimate destina- tion at the through rate. False or ficti- tious billing of company material with intent tq defeat the application of the lawful rate for the service actually per- formed, like other fraudulent practices with like intent, would subject the guilty party to the penalties of the law for of- fenses of this sort in general. Beekman Lumber Co. v. L. Ry. & N. Co., 21 I. C. C. 280, 282. (d) Incorrect dating of bills of lading by a carrier is unlawful. Ford Co. v. M. R. R. Co., 19 L C. C. 507, 510. (e) Dealers in grain and packing house products at Richmond, Va., to- gether with defendant railroad company, and its agents, are found to have par- ticipated in an unlawful practice of is- suing transfer slips which falsely con- veyed to connecting lines the statement that shipments had originated at points beyond Richmond and were entitled to move from Richmond to destination in the Carolinas at a division of a through rate, and these matters being criminal in their nature are referred to the United States District Attorney at Rich- mond with the request that prosecution be instituted against the parties involved. In Re Rates, Practices, Accounts and Revenues of Carriers, 13 I. C. C. 212. (f) The law places the same obliga- tion upon the shipper as upon the car- rier to observe lawful tariff provisions. Any wilfully false representation of the contents of a package on the part of the ■ shipper is prohibited by the law, denomi- i nated as a fraud, and declared to be a ■ misdemeanor by the Act, and the ship- per convicted thereof is subject to fine or imprisonment, or both, in the discre- tion of the court. Bannon v. Southern Express Co., 13 1. C. C. 516, 519. V. OVERCHARGES. §6. In General. (a) The Act provides: "nor shall any carrier charge, or demand, or collect, or receive a greater or less or different compensation for such transportation of passengers or property, or for any ser- vice in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are speci- fied in the tariff filed and in effect at the time." HELD, a railroad is crimi- nally liable for merely demanding stor- age charges in excess of those lawfully applicable. U. S. v. T. & P. R. R. Co., 185 Fed. 820, 822, 824. (b) Within the meaning of the pro- vision in the Act to Regulate Commerce making a carrier criminally liable for exacting greater or less compensation than the legally published rates, the car- rier is only entitled to collect storage charges when its duty as a carrier ceases and it becomes a warehouseman, and that means (where it is its duty to unload the shipment) when it unloads the freight into a freight warehouse and it remains there after the owner has given the consignee reasonable time to remove the goods. United States v. Texas & P. R. R. Co., 185 Fed. 820, 823. (c) Where a carrier willfully and knowingly demands and receives storage charges against a shipper for cars de- tained at a point other than the cus- tomary and usual place of delivery or point of destination, it is criminally liable under the Act to Regulate Commerce, although notice of the arrival of the car at point of detention was given by the carrier to the shipper. United States v. Texas & P. R. R. Co., 185 Fed. 820, 824. VI. REBATING. . See Advertising, M; Allowances, VM; Crimes, §18; Courts, §4 (a); Dis- crimination, §2 (e), §15 (a); Divi- sions, §1 (b), §4 (b), (c), (d); Evi- CRIMES, §7 (a) — (e) 185 dence, §25 (b), (d), §48; Export Rates and Facilities, V (d); Facili- ties and Privileges, §19 (h); Over- charges, §10 (a); Reparation, §4 (a); Special Contract, §2 (f ) ; Tap Lines, §3 (2) (b), §9 (j); Through Routes and Joint Rates, §2 (b); §14 (c) ; Water Carriers, II. A. Elements of Offense. §7. In General. (a) A carrier cannot depart to any extent from its published schedules of rates for interstate transportation on file without incurring the penalties of the statutes. L. & N. R. R. ,v. Mottley, 219 U. S. 467, 477, 31 Sup. Ct. Rep. 265, 55 L. ed. 297. (b) The fact that a state statute under which a railroad is organized per- mits it to issue transportation to pub- lishers in exchange for advertising does not prevent such an arrangement be- tween the carrier and publishers from being in violation of the provisions of the Act forbidding the carrier to accept rates "less than and different" from the rates exacted from the general public. Chi. Ind. & L. Ry. Co. v. U. S. 219 V. S. 486, 497, 31 Sup. Ct. 272, 55 L. ed. 305. (bb) A contract by which a carrier agrees to furnish transportation to a pub- lisher and his employes in exchange for advertising space at the regular adver- tising rates of the publisher violates the provisions of the Act forbidding the fur- Qishing of transportation at rates "less than and different" from those exacted from the general public. Chi. Ind. & L. Ry. Co. v. U. S., 219 U. S. 486, 494, 31 Sup. Ct. 272, 55 L. ed. 305. (c) Under the Act a passenger has no right to buy tickets with services, adver- tising, releases or property, nor can the railroad company buy services, adver- tising, releases or property with trans- portation. The statute manifestly means that the purchase of a transportation ticket by a passenger and its sale by the company shall be consummated only by the former paying cash and by the latter receiving cash of the amount specified in the published tariffs. L. & N. R. R. V. Mottley, 219 U. S. 467, 477, 31 Sup. Ct. 265, 55 L. ed. 297. (cc) Under the Elkins Act as amended by the Hepburn Law, the intention of Congress was, in the absence of express exceptions, to prevent a departure from the published schedules in all manner of carriages, whether gratuitous or other- wise. American Express Co. v. U. S., 212 U. S. 522, 532, 29 Sup. Ct. 315, 53 L. ed. 635. (d) The Elkins Act relating to crime committed by shippers in receiving re- bates is read into contracts for rates made between shippers and carriers and be- comes a part of such contracts. Armour Packing Co. v. U. S., 209 U. S. 56, 82, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry. Co. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (dd) Defendant shipper made a con- tract with a carrier for the transporta- tion of goods for export from Kansas City to New York City at the published rate. Shortly thereafter the carrier raised its rates, and subsequent to this raise the shipper transported the goods to New York City and at .the rate con- tracted for. HELD, the' shipper was guilty, under the Elkins Act, of the crime of receiving a rebate whereby property was transported at less than the pub- lished rate. If the shipper sees fit to make a contract covering a definite period for a rate in force at the time, he must be taken to have done so sub- ject to the possible change of the pub- lished rate in the manner fixed by the statute, to which he must conform or suffer the penalty fixed by law. (Brew- er, J., dissenting.) Armour Packing Co. V. U. S., 209 U. S. 56, 82, 28 S. Ct. 428, V. U. S., 209 U. S. 56, 82, 28 Sup. Ct. 428, S., 209. U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (e) The Standard Oil Co. of Ken- tucky purchased oil of defendant Stan- dard Oil Co. of Indiana. Defendant In- diana company, at the direction of the Kentucky company, shipped the oil from Whiting, Ind., via Evansville, Ind., via Grand Junction, Tenn., to Birmingham, Ala. The lawful rate from Evansville. Ind., to Birmingham was 33c, and the lawful division of this rate for the haul from Grand Junction to Birmingham was 16^^c, which division defendant paid to the delivering carrier. The lawful rate from Whiting to Grand Junction, for beyond, was 13c and the lawful divi- sion for the haul from Evansville to Grand Junction was 7c, which division defendant paid. In this way defendant secured the haul from Evansville to Birmingham, Ala., for 23i^c as compared with the published rate of 33c between those points. HELD, the defendant In- diana Co. was not guilty under the El- kins Act of securing transportation at 186 CRIMES, §7 (f)— §8 (c) less than the published rates, since the charges paid by it for the portions of the haul between E'vansville and Grand Junction and G-rand Junction to destina- tion were the lawfully published divisions of the legal rate from Whiting to Bir- mingham. U. S. V. Standard Oil Co. of Indiana, 183 Fed. 223, 226. (f) It is not essential to the commis- sion of the offense under the Elkins Act of giving a, concession from a through rate over connecting lines of a railroad that the rate be a joint one established by all the carriers and published and filed with the Commission. If the initial carrier accepts traffic for transporta- tion and issues its bill of lading over a route made up of connecting roads for which no joint through rate has been published and filed with the Commission, the lawful rate to be charged is the sum of the established local rates published and filed by the individual roads; or if there is a local rate over one road and a joint rate over the others for the re- mainder of the route, all published and filed with the Commission, the lawful through rate to be charged is the sum of the local and joint rates. C. B. & Q. Ry. Co. V. U. S., 157 Fed. 830, 833. (g) A tap-line allowance may be a concession. Tap-line Case 23 I. C. C. 277, 281. (h) A subsidy paid by terminal line to ocean carriers to enable them to offer shippers a lower ocean rate from Texas City than from Galveston is an unlaw- ful rebate. In Re Wharfage Charges at Galveston, 23 I. C. C. 535, 545. (i) A rebate may be affected by what is equivalent to cash just as successfully as when paid in cash. In either form it is unlawful. In Re Wharfage Charges at Galveston, 23 I. C. C. 535, 545. (j) Commissions paid by a terminal line to a broker for routing cotton for export through Texas City is an unlawful concession from the rate. In Re Wharf- age Charges at Galveston, 23 I. C. C. 535, 542. (k) Where a purely local concession is made, even though it may be beyond jurisdiction of Commission, it may be punishable as a rebate under the Act when made to secure interstate traffic. Tap-line Case, 23 I. C. C. 549, 550. (1) Where a carrier agrees to make a lower rate, lowers the rate after the movement begins and then cancels it after the movement discontinues, the lower rate established is on its face in the form of a rebate giving special privi- leges to a certain shipper who has special knowledge of the lowering of the rate. Alphons Custodis Chimney Con- struction Co. V. S. Ry. Co., IG I^ C. C. 584, 58G. (m) It makes no difference whether the unlawful result is accomplished by pref- erential rates on port-to-port traffic, on intrastate traffic, by a free pass or by actual payment of money; in either case there is a violation of law for which a penalty is provided. In Re Jurisdiction Over Water Carriers, 15 I. C. C. 205, 210. (n) Where a private contract with the carrier provides for refund to the ship- per of a portion of a published interstate rate, the contract is in violation of sec- tion 6 of the Interstate Commerce Act as amended June 29, 1906, forbidding the acceptance by the carrier of a greater or less or different compensation than that provided in the published schedules and prohibiting refunds, and such contract cannot be enforced, even though the ship- per may not have known that he was violating the law. Louisville & N. R. R. Co. V. Coquillard Wagon Works, As- signees (Ky., 1912), 144 S W. 1080, 1082. §8. Intent and Knowledge. (a) Under the Elkins Act making it criminal for a shipper by any device whatever to secure the transportation of property at a less rate than that named in the tariffs published and filed by the carrier, it is not necessary to support a conviction that the preference be ob- tained by fraudulent schemes or devices, or by dishonest, underhanded methods, since the term "device" includes any- thing which works a plan or contrivance. Armour Packing Co. v. U. S., 209 U. S. 56, 71, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. R. R. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (b) Where a shipper knowingly trans- ports goods at less than the published rate he is liable to conviction under the Elkins Act, despite the fact that his con- duct does not involve turpitude or moral wrong. Armour Packing Co. v. U. S., 209 U. S. 56, 85, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. R. R. v. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (c) A carrier in a criminal prosecu- tion under the Act as amended June 29, CRIMES, §8 (d)— §10 (b) 187 906, cannot be heard to deny that it lid not know of a rate which it itself had tstablished in accordance with the law, iS a justification for its departure there- rom, where the evidence indicates that t charged the lower rate at the insistent [emand of the shipper. U. S. v. Mer- hants' & Miners' Transp. Co., 187 Fed. 63, 366. (d) To make a carrier criminally li- ble under section 10 of the Act the mission or act complained of must be I'illful; an accidental mistake is not le basis of prosecution; but willful oes not mean with malice or bad pur- ose but simply with knowledge. U. S. . T. & P. R. Co., 185 Fed. 820, 821, 824. (e) Defendant carrier was indicted nder the Elkins Act for making a con- ession under its published rates on ime. The published rate was $3.50 per on in carload lots of not less than 40,- 00 lbs. and when the shipment exceeded 0,000 lbs. the charge was to he $3.50 at he actual weight. The evidence indi- ated that defendant received less than his published rate on the weight of lime ctually delivered by the shipper to de- endant at the point of origin. Defend- nt offered to show that the shipper had 1 all cases delivered at least 40,000 t)s. for each car, but that at destination : was found the weight was less than [),000 lbs.; that the shipper claimed a art of the lime had been lost in transit; hat the defendant and shipper reached n agreement whereby the former was ) charge only for the actual weight at he rate of $3.50 and the latter was to elinquish his claim for loss of the lime, he value of the lime at point of origin eing $3.50 per ton. HELD, to make efendant guilty, the concession granted lust have been made willfully and it was rror to exclude the evidence offered as earing upon the intention of the de- Bndant. A. T. & S. F. Ry. Co. v. U. S., 70 Fed. 250, 255, 256. (f) Whether defendant shipper in a rosecution under the Elkins Act for ac- epting a concession regarded the pub- shed rate as applicable to the route ver which the shipment, with its knowl- dge, was made and knowingly accepted concession from such rate, or whether : did not so regard the published rate, f the filing of the rate and the entire ourse of dealing between the defendant arriers amounted merely to a device to ircumvent the law, to mislead other hippers and to discriminate in favor of the defendant, the published rate was nevertheless the lawful rate and the con- cession therefrom a concession in viola- tion of the statute. Standard Oil Co. of N. Y. v. United States, 179 Fed. 614, 625. (g) In an indictment against a ship- per under the Elkins Act for accepting and receiving a concession, it is error to exclude evidence offered on the part of defendant to show that it had no knowledge of the lawfully published rate, especially where the tariffs setting out such rate were involved and some- what ambiguous. Standard Oil Co. of Indiana v. U. S., 164 Fed, 376, 382. §9. Payment. (a) To warrant a conviction under the Elkins Act of Feb. 19, 1903, on a charge of accepting a rebate, concession, or re- bate, it is unnecessary to charge or prove the payment or receipt thereof. It is suflficient if it is shown that the conces- sion was offered by the carrier, or his agent, and by the shipper accepted. The fact that the carrier, after the offer had been made by it and accepted by the shipper refused to make payment of the rebates, did not prevent a conviction under an indictment charging the ship- per with the acceptance of such an of- fer, the acceptance of the offer being the gist of the offense. U. S. v. Bunch, 165 Fed. 736, 738. §10. Posting of Tariff. (a) To a criminal prosecution under the Act as amended June 29, 1906, against railroads for accepting from a shipper less than the published rate filed with the Interstate Commerce Commis- sion, it is no defense that defendants had spread broadcast among the ship- pers of the country an announcement of the lower rate accepted, when in fact such rate had not been filed and pub- lished as required by the Act, and the higher rate was the only one lawfully in effect. U- S. V. Merchants' & Miners' Transp. Co., 187 Fed. 363, 365. (b) In an indictment under the El- kins Act against a shipper for accepting concessions, it is sufficient for the gov- ernment to prove posting and publishing of the tariff at the station where the freight is received for transportation, and it is not required to prove that the carrier had posted and published the same at every station on its line. U. S. V. Standard Oil Co., 170 Fed. 988, 1002. 188 CRIMES, §10 (c)— §11 (b) (c) In an indictment against a ship- per under the Elkins Act for accepting concessions on shipments from Whiting, 111., to St. Louis, Mo., it is not sufficient proof of posting to show that the estab- lished rates were posted at Chicago and not at Whiting. U. S. v. Standard Oil Co., 170 Fed. 988, 1007. (d) A terminal railroad extended from East St. Louis, 111., a distance of sixteen miles, but was engaged in the transportation of property moving wholly by railroad from one state to another, and joined in the transportation of a shipment from a point in Indiana to Alton, 111., without first filing a schedule of rates applicable to the shipment with the Commission. HELD, under the In- terstate Commerce Act as amended by the Elkins Act and the Hepburn Act de- fendant was criminally liable. U. S. v. I. T. R. R. Co., 168 Fed. 546, 549. (e) Section 1. of the Elkins Act pro- viding that whenever an offense is be- gun in one jurisdiction and completed in another it may be punished in either ju- risdiction, does not apply to the failure of a carrier to file tariff schedules with the Interstate Commerce Commis^on. N. Y. C. & H. R. R. R. Co. v. U. S., 166 Fed. 267, 270. (f) Defendant shipper made a con- tract with a steamship company operat- ing on the Great Lakes from Buffalo and Fairport to West Superior for the car- riage of property from points in New Jersey and Pennsylvania to Winnipeg, Canada, at a rate of 45c. The property was transported by railroads from the points of origin to Fairport and Buffalo, thence by the steamship line to West Superior and thence by railroads to Winnipeg. The rate published by the initial carrier of the railroads was 49i^c and this was paid to them by defendant, which was re- imbursed for the excess over 45c by the steamship line. The shipment moved on a through bill of lading. The steam- ship line did not, however, file or pub- lish the 49i^c rate. HELD, in an in- dictment under the Elkins Act for ac- cepting less than the published rates de- fendant was not liable since the steam- ship line from which defendant accepted the rebate had not in fact published the 491/^c rate. Camden Iron Works v. U. S., 158 Fed. 561. 564. (g) It is unlawful to be engaged In Interstate commerce by carriage of traf- fic in respect of which no rate has been published and filed. Maxwell v. W. F. & N. W. Ry. Co., 20 I. C. C. 197, 198. (h) It is unlawful not to file a tariff stating storage charges and privileges. Goldenberg v. Clyde S. S. Co., 20 I. C. C. 527, 529. §11. Route and "Common Arrangement." See Through Routes and Joint Rates, §2. (a) A tariff filed with the Interstate Commerce Commission by the Penn. R. R. and concurred in by the N. Y. C. & H. R. R. R. fixed the rate on petroleum and its products from Olean, N. Y., to Norwood, N. Y., at 26i^c, and stated that "the route should be in accordance with agreed percentages and as designated within." It did not, however, designate the route, and no percentage sheets were filed with the Commission. HELD, that the route to which the tariff applied was the natural and direct route from Olean to Norwood by way of Rochester, and not the roundabout route by Buffalo, and that the tariff was therefore suffi- ciently definite to establish the rate spec- ified over the former route, in a criminal prosecution under the Elkins Act for ac- cepting a concession. Standard Oil Co. of N. Y. V. U. S., 179 Fed. 614, 623. (b) On carloads of petroleum con- signed to defendant and shipped from Olean, N. Y., to Rutland, Vt., the bill of lading acknowledged the receipt of the oil by the initial carrier at Olean and contained its agreement to deliver to the connecting carrier. It provided that to each carrier on the route the service was to be performed in accord- ance with the conditions stated therein. The route was by the Pennsylvania to Rochester, by the New York Central to Norwood and by the Rutland road to destination. The oil was hauled in the condition in which it was when delivered to the initial carrier to the point of destination continuously and without any unnecessary delay. The shipments were "blind-billed," no rate being designated by the Penn. R. R. from Olean to Roch- ester. The charges of the New York Central were marked "prepaid" when they were not in fact prepaid. In this way the freight charges were marked for settlement through the general offices of the railroad. The Rutland rate on oil was a commodity rate and the shipments of the consignor in question were the CRIMES, §12 (a)— §13 (g) 189 •nly ones likely to take it. Other evi- ence was presented of concerted action n the part of the carriers. HELD, in criminal prosecution under the Elkins Lct against a shipper for accepting less ban the published rates, the evideace ^as sufficient to show a "common ar- a.ngement" between the carriers in ques- on within the meaning of the Act. tandard Oil Co. of New York v. U S 79 Fed. 614, 622. ' ' 12. Transportation. (a) In a prosecution .under the Elkins ct for receiving a rebate whereby prop- ^ty is transported at a less than the Liblished rate, the transportation is an ssential element of the offense and lually takes place over any and all of le route traveled and during transpor- tion the crime is being continuously )mmitted. Armour Packing Co. v. U. S., )9 U. S. 56. 76, 28 Sup. Ct. 428, 52 L. ed. II; C. B. & Q. R. R. V. U. S., 209 U. S. I, 28 Sup. Ct. 439, 52 L. ed. 698. (b) Where a shipper secures a rebate om the lawfully published rates for the ansportation of property, the trans- •rtation is of the essence of the offense id the crime is committed in each dis- ict, for the purposes of prosecution, rough which the shipment passes. Ar- our Packing Co. v. U. S., 209 U. S. 56, , 28 Sup. Ct. 428, 52 L. ed. 681; C. B & R. R. V. U. S., 209 U. S. 90, 28 Sup. Ct. 9, 52 L. ed. «98. (c) The provision of section 15 of e Act, to the effect that shippers may made an allowance by carriers for rvices rendered by them in connection th the transportation, relates only to rvices which the carrier has scheduled its tariff rates, and published in ac- rdance with section 6 of the Act, and 3h section affords no defense to a car- r under criminal indictment for paying ivet allowances to favored shippers, ngdon v. Penn. R. R. Co., 194 Fed ;, 496. REBATING. Number of Offenses. t. Payments. a) Where a shipper makes a number shipments and pays the full legal rate each, and the carrier remits by vari- 5 checks a portion of this rate, the 3nse is complete when the carrier lits a single check, and each remit- tance constitutes a separate offense. N Y. C. & H. R. R. R. V. U. S., 212 U. S. 481, 498, 29 Sup. Ct. 304, 53 L. ed. 613. (b) In an indictment under the Elkins Act against a shipper for receiving con- cessions, the settlement between the car- rier and the shipper of the difference between the concession and the legal rate is an essential part of the offense, and the number of offenses cannot there- fore exceed the number of payments made by the carrier. U. S. v. Standard Oil Co., 170 Fed. 988, 997. (c) An indictment for accepting re- bates alleged that the lawful rate was lie and that defendant shipper knew it; that the lawful rate of lie was charged to and collected . from the consignee in the form of a freight rate of 7c plus a fictitious advance charge of 4c; that later, and at the end of the month, the fictitious charge of 4c was returned to defendant as a rebate, and that thereby defendant accepted and received, at the date of the payment of said rebate, a concession, rebate, and discrimination of 4c. There were twenty shipments in number, but only six payments. HELD, under the indictments framed and the admitted facts, defendant was guilty of only six, and not of twenty, violations of the Act. U. S. V. Stearns Salt & Lum- ber Co., 165 Fed. 735, 736. (d) Under the Elkins Act of Feb. 19, 1903, for a shipper to ask for a conces- sion or rebate, although it may not be granted by the carrier, constitutes the offense of soliciting. U. S. v. Bunch, 165 Fed. 736, 738. (e) Under the Elkins Act of Feb. 19, 1903, with respect to the offense of re- ceiving a rebate or concession, it is wholly imm'aterial whether the rebate was paid in pursuance of a former agree- ment or without such understanding. The offense is completed when the ship- per receives a rebate or concession from the published rates. U. S. v. Bunch, 165 Fed. 736, 739. (f) Where an indictment under the Elkins Act of Feb. 19, 1903, charges the acceptance and receipt of money paid as a rebate, and not the acceptance of a concession, there can be no violation of the Act until it is shown that the money intended as a rebate was actually paid. U. S. V. Bunch, 165 Fed. 736, 740. (g) Where an indictment under the Elkins Act charges the acceptance and 190 CRIMES, §13 (h)— §17 (a) receipt of money paid as a rebate, and the defendant is shown to have received only two rebate checks from the carrier, only two offenses are committed under the indictment as framed. U. S. v. Bunch, 165 Fed. 736, 741. (h) In an indictment against a ship- per under the Elkins Act for accepting and receiving a concession, proof that a shipper has agreed to accept a conces- sion — stopping there — whether the proof be embodied in waybills, or book entries, or formal contracts, will not support an indictment for accepting a concession until the intended wrong becomes an accepted fact by the actual payment of the lower rate, or by some book transac- tion resulting in the offsetting of mutual accounts. Standard Oil Co. of Indiana v. U. S., 164 Fed. 376, 386. (i) Under the Elkins Act of Feb. 19, 1903, the acceptance by a carrier of a less sum of money than that named in its tariff for the transportation of prop- erty is a departure from the legal rate, and it is no defense against a criminal prosecution that the carrier does so in compromise of claims for loss of property in transit. U. S. v. A. T. & S. F. Ry. Co., 163 Fed. Ill, 113. (j) Where in a prosecution under the Elkins Act the payment and acceptance of rebates is the substantial offense set out in the indictment, each substantial payment is properly the subject of a sep- arate indictment or count, despite the fact that all shipments and payments were made pursuant to one agreement for rebates entered into with respect to the entire property transported. U. S. v. Gt. N. Ry. Co., 157 Fed. 288, 290. (k) In an indictment under the Elkins Act for giving rebates, where there has been but one payment in settlement of many different shipments, only one of- fense has been committed. U. S. v. Central Vt. Ry., 157 Fed. 291, 293. §14. Shipments. (a) Defendant was indicted under the Elkins Act for accepting and receiving a concession. The shipments in question were carried in 1,462 carloads and were settled for, and the charges thereon paid, upon 36 distinct days within the period in question. In the regular course of business, whenever an order came to de- fendant from a buyer (the order being in gallons or barrels, not cars), the order was translated by defendant's clerks into carloads according to the capacity of the cars, running all the way from 30,000 to 80,000 lbs. The oil was then loaded upon the cars, some single orders filling six or eight cars. The trial court, in imposing a fine, counted each single carload as a separate offense. HELD, such a method of computation of offenses was erroneous, since the offense charged was not committed until payment was made and the number of offenses should correspond with the number of settle- ments made. Standard Oil Co. of Indiana V. U. S., 164 Fed.' 376, 386. (b) Where an indictment, under the Elkins Act, charges as separate and dis- tinct offenses, the acceptance of conces- sions, by a shipper on different days, each shipment constitutes a separate offense. U. S. v. Vacuum Oil Co. 158 Fed. 536, 539. VI. REBATING. C. Liability. §15. Act of Agent. (a) The corporation which profits by the transaction of rebating, may be held punishable by fine, because of the knowl- edge and intent of its agents to whom it has intrusted authority to act in the subject matter of making and fixing rates of transportation, and whose knowledge and purposes may well be attributed to the corporation for which the agents act. N. Y. Central v. U. S., 212 U. S. 481, 495, 29 Sup. Ct. 304, 53 L. ed. 613. §16. Connecting Carrier. (a) The concluding part of section 1 of the Elkins Act brings all the carriers who have participated in any rate filed or published within the terms of the Act, as much so as if the tariff had been actually published and filed by such par- ticipating carrier, so that a connecting carrier may be convicted of rebating for accepting a lower rate than the one filed with the Commission by the initial car- rier. U. S. V. N. Y. C. & H. R. R. R. Co., 212 U. S. 509, 515, 29 Sup. Ct. 313, 53 L ed. 629. VII. INDICTMENT. A. Charging Elements of Offense. §17. In General. (a) An indictment for rebating, under the Elkins Act, describes the offense with CRIMES, §18 (a)— §22 (b) 191 sufficient particularity where it specific- ally states the elements of the offense so as to fully advise the defendant of the crime charged and to enable a convic- tion, if had, to be pleaded in bar of any subsequent prosecution for the same offense. N. Y. C. & H. R. R. R. v. U. S., 212 U. S. 481, 497; 29 Sup. Ct. 304, 53 L. ed. 613. §18. Concession or Rebate. (a) An indictment under the Elkins Act which alleges the lawful rate to be $70 per car, and that defendant carrier charged and received only $64.75 a car, sufficiently charges a "concession," al- though the word "concession" is not men- tioned in the count. A. T. & S. F. Ry. Co. V. U. S., 170 Fed. 250, 256. §19. Description of Device. (a) An indictment under the Elkins Act for granting or giving of a rebate is sufficient which alleges such granting or giving from the published and filed rates for the transportation of property by a carrier engaged in interstate commerce, and which points out the kind of prop- erty transpo'rted, the time and place /vhen shipped, the consignee to whom shipped, the existing legal tariff or rate tor such shipment, the payment thereof ].y the shipper to the carrier, the sub- sequent payment of the rebate or con- cession by the carrier to the shipper, the time when it was paid, and the amount tnereof, and it is not necessary that the indictment particularly describe the de- vice resorted to by the carrier to accept the unlawful transportation. C. St. P. M. & O. Ry. Co. V. U. S., 162 Fed. 835, 838. (b) An indictment against a shipper, under the Elkins Act, for receiving a re- bate, whereby property is transported at less than the published rate, is not in- sufficient on the ground of failing to set out the kind of device by which traffic was obtained, and of what the concession consisted, and how it was granted, where it distinctly and clearly charges each and every element of the offense, advises the defendant of what he is to meet at the trial, and where no objection is made to the indictment until after verdict by a motion in arrest of judgment. Armour Packing Co. v. U. S., 209 U. S. 56, 83. 84; 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. R. R. V. U. S., 209 U. S. 90, 28 Sup. Ct. 439. 52 L. ed. 698. §20. Language of Statute. (a) While in pleading a criminal of- fense under the Elkins Act, as amei-de.l June 29, 1906, it is safe to employ the words of the statute, such action is not obligatory, and any language which is seen to be capable of apprising one of ordinary intelligence of the several es- sential ingredients of the crime meets every requirement. U. S. v. Sunday Creek Co., 194 Fed. 252, 254. §21. Payment. (a) In an indictment under section 1 of the Elkins Act against a shipper charg- ing the acceptance of a concession, it is not necessary to aver that payment of the unlawful rate was made, since the charge being an acceptance of a con- cession, proof of payment is evidence not necessary to be pleaded. Standard Oil Co. of N. Y. v. U. S., 179 Fed. 614, 619. (b) An indictment against a shipper for accepting a concession below the pub- lished rate under the Elkins Act is not bad on demurrer for failure to allege the payment by the defendant to the car- rier of the alleged unlawful rate. U. S. V. Vacuum Oil Co., 158 Fed. 536, 538. (c) In a prosecution against a carrier for giving rebates under the Elkins Act, an indictment is not bad on demurrer for alleging for greater ease of proof as many payments as there were separate shipments, although the evidence may show that all the shipments were rebated for in one payment by the carrier, and that therefore only one offense was com- mitted. U. S. V. Central Vt. Ry., 157 Fed.. 291, 293. §22. Posting of Tariff. (a) Where an indictment against a shipper for obtaining rates lower than the lawfully published rate fails to allege that the published rates were posted for public inspection, as required by the In- terstate Commerce Act as amended June 29, 1906, a demurrer to such indictment must be sustained. U. S. v. Miller, 187 Fed. 375, 377. (b) An indictment under the Elkins Act for granting a rebate is demurrable which alleges that the initial carrier published the rate departed from, but fails to allege that the defendant deliver- ing carrier published or joined in the publication of such rate, since, under the language in section 1 making it a crime for the carrier to transport the shipment 192 CRIMES, §22 (c)— §26 (a) "at a less rate than that named in the tariffs published and filed by such car- rier," the words "such carrier" refer to the carrier criminally proceeded against. U. S. V. N. Y. C. & H. R. R. R. Co., 157 Fed. 293, 294. (c) An indictment against a carrier for giving a rebate contrary to the El- kins Act is not defective in failing to show upon its face the tariff rate alleged to be violated, where the various car- rying- lines over which the shipment passed accepted and acted upon the through bill of lading to point of destina- tion, openly charging the aggregate of the published tariffs as charged in the indict- ment, since they thereby created a through route and accepted the published aggregates as the lawful and only through charge. U. S. v. Gt. N. Ry. Co., 157 Fed. 288, 290. §23. Route. (a) An indictment against a shipper, under the Elkins Act, for accepting a con- cession below the published rate is not bad on the ground that the con- cession related merely to intrastate ship- ments, where it alleges that the trans- portation was pursuant to a common arrangement, for a continuous shipment from Clean, N. Y., to Burlington, Vt., and that the concession complained of was over that portion of the route from Glean to Norwood, N. Y., and not from the ag- gregate rate for the interstate trans- portation, since it is not necessary to the offense that all connecting carriers should join in giving the concession. U. S. vs. Vacuum Oil Co., 158 Fed. 536, 538. (b) An indictment charging a shipper with accepting a concession below the published rates under the Elkins Act is not bad on demurrer for failure to specify the route on which the established rate applied, and that over which the freight was transported, despite the existence of another possible route, where such lat- ter route was not Ihe natural and usual one for the shipment to take. U. S. v. Vacuum Oil Co., 158 Fed. 536, 537. (c) An indictment against a carrier under the Elkins Act specifically charged that a concession was given whereby a shipper secured a transportation of its property from Kansas City to New York at a rate 12c less than the lawful rate, and definitely pointed out that the con- cession was given and received in respect to that part of the through route lying east of the Mississippi River, the lawful rate therefor being specified and also the amount of the concession. HELD, the indictment was sufficiently definite de- spite its failure to specify the through rate from Kansas City to New York. C. B. &. Q. Ry. Co. V. U. S., 157 Fed. 830, 834. VII. INDICTMENT. B. Joinder of Defendants. §24. Principal and Agents. (a) In indictments for rebating under the Elkins Act, a corporation and its agents may be legally joined as defend- ants in one indictment. N. Y. C. & H. R. R. R. Co. V. U S., 212 U. S. 481, 497, 29 Sup. Ct. 304, 53 L. ed. 613. VII. INDICTMENT. C. Proof and Variance. See Evidence, I. §25. In General. (a) Where in a prosecution under the Elkins Act the indictment avers that the defendant carrier over whose line the shipment was made had established and published rate over its line of 19i/^c, and the proof shows that the tariffs and schedules filed specify 18c over the de- fendant's route, and show that the 19^/^0 rate is made up by adding to the 18c rate the 11/^ c rate of another independent car- rier, there is a fatal, variance between the allegations and the proof. U. S. v. Standard Oil Co., 170 Fed. 988, 1002. (b) Where an indictment alleges that the published rate on lime is $70 a car- load, the allegation is not sustained by a showing from the published tariffs that the rate was $3.50 per ton in carloads of at least 40,000 lbs., the charges to be assessed at $3.50 per ton on actual weight on shipments exceeding 40,000 lbs. A. T. & S. F. Ry. Co. V. U. S., 170 Fed. 250, 254. VII. INDICTMENT. D. Venue. §26. In General. (a) Where a shipper in sending prod- ucts from Kansas City, Kan., to New York City, N. Y., the course of trans- portation being through the Western Dis- trict of Missouri, secures concessions from the lawfully published rate, it may be prosecuted in the Western District of CRIMES, §26 (b)— §30 (c) 193 Missouri under the provision of the El- kins Act conferring jurisdiction to prose- cute in any criminal court in the United States in the district through which the transportation may have been conducted. Armour Packing Co. v. U. S., 209 U. S. 56, 74, 28 Sup. Ct. 428, 52 L. ed. 681; C. B. & Q. R. R. v. U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52 L. ed. 698. (b) Under the Elkins Act, standing alone, a prosecution for failure to file tariff schedules with the Interstate Com- merce Commission could be instituted only in the District of Columbia, but since the passage of the Hepburn Act such prosecution may be instituted in any district through which the trans- portation passes. U. S. v. 111. Term. R. R. Co., 108 Fed. 546, 548. (c) Under the Elkins Act, and before the passage of the Hepburn Act, a crim- inal prosecution for failure to file tariff schedules with the Interstate Commerce Commission could be instituted only in the District of Columbia. N. Y. C. & H. R. R. R. Co. V. U. S., 160 Fed. 267, 269. VIII. DEFENSES. See Courts, §2. §27. Former Jeopardy. (a) Defendant shipper was formerly indicted and convicted for accepting con- cessions on shipments of petroleum from Glean, N. Y., to Bellows Falls, and to Rutland, Vt. Defendant was again in- dicted for accepting concessions on ship- ments transported under separate bills cf lading and shipping orders from Glean, N. Y., to Burlington, Vt., upon different days, over three railroads involved in the haul of the shipments covered by the former indictment, and also over another carrier. The same tariff rate on the shipment specified in both indictments was paid by the defendant monthly, upon bills rendered by the carrier covering all the transportations of petroleum dur- ing the preceding month, and such pay- ments and settlements included, not only the transportations contained in the in- dictment upon which the defendant was formerly convicted, but also the specific transportations included in the second indictment. HELD, the second indict- ment covered offenses separate and dis- tinct from those included in the first in- dictment, and defendant's plea of a for- mer conviction should be denied, since, although the payment of charges by the shipper was essential to the completion of the offense, the separate shipments, nevertheless, constituted separate of- fenses. U. S. v. Standard Gil Co. of New York, 192 Fed. 438, 440. §28. Statute of Limitations. (a) Section 1044, Rev. St. U. S., fixing the period of limitation for crimes, ap- plies to misdemeanors for rebating, un- der the Elkins Act, and the period of limitation is not governed by section 721 of the Rev. St. U. S., making the period of limitation fixed by the laws of the states determinative in certain instances. U. S. V. Central Vt. Ry., 157 Fed. 291, 292. (b) Defendant carrier in 1902 agreed with a shipper to transport sugar at less than the published rate. The transporta- tion was made and the rebates were paid by defendant in May, 1904. The indict- ment was found in February, 1907, charg- ing defendant with the acceptance of rebates in violation of the Elkins Act. HELD, the rebate was not given or ac- cepted until the amount thereof was paid, and defendant was liable under the Elkins Act, despite the fact that the indictment was found after the effective date of the Hepburn Act of June 29, 1906. U. S. v. Gt. N. Ry. Co., 157 Fed. 288, 289. IX. PRGCEDURE. §29. Province of Court. (a) In a prosecution under the Elkins Act against a shipper for the acceptance of a concession, it is for the court, and not for the jury, to determine whether documents filed with the Interstate Com- merce Commission are sufficiently defi- nite to establish the rate in question between the points in question. Standard Oil Co. of New York v. U. S., 179 Fed. 614, 624. §30. Province of Jury. (abc) In a prosecution under the Elkins Act against a railroad company for grant- ing concessions, it is for the jury to ae- termine upon the evidence whether a settlement of demurrage charges was made during the period covered In the indictment, and whether a cancelation of demurrage charges by defendant was a valid settlement of a disputed claim or was a cancellation made for the purpose of extending a concession to a favored shipper. U. S. v. P. & R. Ry. Co., 184 Fed. 543, 545; U. S. v. Bethlehem Steel Co., 184 Fed. 546; U. S. v. Lehigh Valley Ry. Co., 184 Fed. 546. 194 CRIMES, §31 (a)_DAMAGES, §1 (c) §31. Extent of Verdict. (a) In a prosecution under the Elkins Act against a carrier for making con- cessions to a shipper, each count of an indictment consisting of many counts charged that defendant had made a con- cession as to the carload shipment men- tioned in the count. The evidence indi- cated that the concession had been made on all the shipments during the period In question by one settlement, made by defendant, in which it simply canceled all the demurrage charges standing against the shipper, and that the amount of charges so canceled was large enough to cover the sum total of all the con- cessions alleged to have been made on all of the cars mentioned in the different counts. HELD, a verdict finding defend- ant guilty on all the counts should be sustained. U. S. v. Phil. & R. Ry. Co., 184 Fed. 543, 545; U. S. v. Bethlehem Steel Co., 184 Fed. 546; U. S. v. Lehigh Valley Ry. Co., 184 Fed. 546. X. PENALTIES. §32. Excessive Fine. (a) In an indictment under the Elkins Act against the Standard Oil Co. of Indi- ana for accepting and receiving a con- cession, a fine of $29,240,000, imposed by the trial court on the basis of one offense for every carload shipped, is excessive, where the defendant had not before been convicted of the same offense, where its assets were not in excess of $1,000,000, and where the trial court considered the Standard Oil Co. of New Jersey the real offender in imposing the sentence. Standard Oil Co. of Indiana v. U. S., 164 Fed. 376, 386. XI. STATE REGULATION. See Interstate Commerce, §4. §33. In general. (a) A state statute, practically iden- tical in language with the provision of the Interstate Commerce Act, making it a crime for a person to knowingly and wilfully secure transportation at less than the published rates by false repre- sentation of the contents of the package, false weights, etc., is not unconstitu- tional as coming into conflict with the Federal Act. Adams Express Co. v. Char- lottesville Woolen Mills (Va., 1908), 63 S. E. 8, 9. DAMAGES. , See Reparation. See Tariffs, §12. DEMURRAGE. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. RIGHT TO ASSESS. §2. In general. §3. Discrimination. §4. Failure of consignee to ac- cept. §5. Fault of shipper. §6. One shipment in two cars. §7. Order-notify shipments. §8. Pending dispute. §9. Prior to actual delivery. §10. Private cars. IIL PUBLICATION AND TARIFFS. §11. Obligation to file. IV. DEMURRAGE RULES. §12. Construction in general. §13. Average demurrage plan. §14. Bunching. §15. Free time. §16. Placement or arrival-notices. §17. Railroad errors or omis- sions. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Commerce Court, §2 (a), (b) ; Courts, §9 (g), (h), (j). §11 (p); In- terstate Commerce,' §4 (s), (t), (m); Interstate Commerce Com- mission, §2 (h); Procedure Before Commission, §2 (bb), §13 (s) ; Rep- aration, §21 (e) ; Tracl< Storage, 1 (b). (a) On the question of reasonableness of demurrage rules the Commission must first be applied to, before the power of a United States circuit court may be invoked. C. R. R. Co. of N. J. v. Hite, 166 Fed. 976, 979. (b) It is not the duty of the carrier to furnish storage beyond a reasonable time necessary to unload, and the Com- mission has no authority by the Act, where a carrier has not held itself out as granting storage, to order it furnished, but if it is furnished and charged for, storage becomes an incident in connec- tion with transportation, and the legality of the rule becomes a proper matter for consideration by the Commission. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. (c) The Commission has no power to enjoin pendente lite the collection of pub- DAMAGES, §1 (d)— §2 (j) 195 lished demurrage charges. Peale, Pea- cock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 33. (d) The duty of regulating demurrage Is lodged with the Commission. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 33. (e) Since cartage charges may be re- garded as a proper subject for national regulation, federal authority over de- murrage and track storage charges in connection with interstate commerce can- not be challenged and is exclusive. Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C. 170, 174. (f) In an action in a state court by a carrier to recover demurrage based on a schedule of demurrage charges duly published and filed with the Interstate Commerce Commission, the court has no jurisdiction to determine the reasonable- ness of the charges, as original jurisdic- tion with respect thereto is vested in the Interstate Commerce Commission. Erie R. R. Co. V. Wanaque Lumber Co., 75 N. J. L. 878, 881, 69 A. 168. II. RIGHT OF CARRIER TO CHARGE. §2. In General. See Credit Account. §2 (c) ; Crimes, §30 (a), §31 (a); Narrow Gauge Railroad, I (c); Reparation, §3 (p); Special Contracts, §2 (p); Track Storage, II (a). (a) There is no legal right in a con- signee of freight to use a car as a ware- house, and no right to use a car or track as a trading place to the embarassment of the carrier. Vllson Produce Co. v. Penn. R. R. Co., 16 I. C. C. 116, 121. (b) It is in the interest of both ship- per and carrier to promptly release cars. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. (c) The business of a railroad is transportation, not storage. The service of a railroad cannot be efficient unless Its cars are promptly released. If a car is detained by a particular shipper for a longer period than is necessary for loading, or unloading, the efficiency of a railroad is to that extent diminished, and every other shipper is to the sama extent prejudiced. The shippers of New England should make an effort to operate under the uniform demurrage code. In Re Demurrage Investigation, 19 I. C. C. 496, 498. (d) Notwithstanding the fact that one of the primary reasons for demurrage is to release equipment, and again place It in transportation service, an equally im- portant end sought is the use of the carrier's tracks and terminals for all of its patrons. Lynah & Read v. B. & O. R. R. Co., 18 I. C. C, 38, 44. (e) A shipper is not relieved from published demurrage charges on coal by reason of the fact that he is not engaged in speculative dealing in that commodity. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C, 25, 33. (f) A carrier may assess reasonable demurrage charge; if coercive measures are necessary, they will be viewed with favor. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. (g) After allowing reasonable time to unload, carriers may impose such charges for further detention as will lead to speedy release of its equipment. Wil- son Produce Co. v. Penn. R. R. Co., 16 I. C. C. 116, 122. (h) It is desirable that demurrage charges shall be the same at all places and upon all commodities, but it is con- ceivable that there may be cases where a particular commodity or a particular locality should be made an exception to the general rule, and in such cases there Is no reason why every locality and every commodity should bear the added burden. N. Y. Hay Exchange Ass'n v. Penn. R. R. Co., 14 I. C. C. 178, 187. (i) Demurrage charges and charges of a kindred nature are imposed as com- pensation to a carrier for an additional service. The rate of freight includes a delivery of the property; it does not in- clude the storage of the property after a reasonable opportunity has been afforded the consignee to receive it. When, there- fore, the carrier through failure of the consignee to promptly remove the prop- erty is obliged to store the same either in its cars or its warehouses, it performs a service not embraced in the rate and for which additional compensation may properly be exacted. N. Y. Hay Ex- change V. Penn. R. R., 14 I. C. C. 178, 184. (j) Shipment forwarded to lake port with instruction to forward all rail if navigation closed. No demurrage should accrue for detention at lake port be- fore forwarding via all rail line, because during the time the car was held at such port it was in the custody of the car- riers awaiting acceptance by the water line. Follmer & Co. v. N. P. Ry. Co., Unrep. Op. 458. 196 DAMAGES, §2 (k)— §4 (c) (k) A carrier of interstate shipments is entitled to collect demurrage charges according to the free time and conditions contained in the schedules filed with and approved by the Interstate Commerce Commission. Nebraska Transfer Co. v. C. B. & Q. R. R. Co. (Neb., 1912), 134 N. W. 163, 166. §3. Discrimination. (a) The circumstances and conditions surrounding transportation at one port may be, and necessarily are, essentially dissimilar from those obtaining at an- other, and the promptness with which a Bhipp€r releases equipment at one yard, where the facilities are ample, cannot reasonably be taken as conclusive in de- termining what would constitute prompt- ness at another port. Lynah & Read v. B. & O. R. R. Co., 18 I. C. C. 38, 44. (b) Carriers, including defendant, in the state of Ohio, determined to combat the right of the Railroad Commission of Ohio to prescribe demurrage rules on in- terstate traffic and to act in unison in the matter. Defendant by oversight eliminated the average plan of demur- rage prescribed ' y the state commission before the other carriers took action, the result being that during the period of time in question the other carriers were according to competitors of complainant, located on their lines, the average sys- tem of demurrage charges, while defend- ant was exacting the straight plan of de- murrage from complainant. Defendant's line did not. however, reach complainant's competitors. HELD, the defendant was not guilty of unjust discrimination aeainst complainant and in favor of . om- plainant's competitors, since a carrier cannot be charged with giving preference or advantage to points which it does not serve. Friend Paper Co. v. C. C. C. & St. L. Ry. Co., 18 I. C. C. 178, 179. §4. Failure of Consignee to Accept. (a) Complainant asked reparation of demurrage charges assessed on carloads of coal sold by it to the C. & N. W. Ry. at Chicago, and which that carrier re- fused to accept because it was at that time elevating its tracks in Chicago and had placed an embara:o against traffic from connections. HELD, th? charges did not accrue because of any act or de- fault of the carrying road or its inability to perform service from point of ship- ment to point of delivery. A railroad stands like any other shipper, and it is therefore unlawful to apply one rule when a shipment is for a railroad, and a different rule when for a private indi- vidual, if the traffic is like in kind and the circumstances and conditions of transportation are substantiully similar. The consignee having been in fault and not having participated in the transporta- tion, reparation must be denied. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 23 I. C. C. 81. (aa) Demurrage on coal consigned to a railroad consignee, which accrued on account of that carrier's embargo, is not necessarily unlawful. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 23 I. C. C. 81. (b) Complainant is a manufacturer and seller of cotton waste, with its fac- tory at Augusta, Ga. Aug. 25 to Sept. 29, 1908, Augusta was visited by a flool of such proportion that for a time all in- dustries along the water front were paralyzed. Complainant's side track was partially destroyed. The track was re- paired about Sept. 2. From the time de- fendants were able to make delivery, they assessed demurrage against complainant of $1.00 per day a car after the expiration of the free time. Complain^^nt could not take delivery on account of the condition in which the flood left its mill and be- cause labor to make repairs was scarce. The demurrage rule in effect provided that no charge should be collected when the condition of the weather during the time prescribed for unlo^ ling was such as to render it impossible to remove freight without serious damage. Defend- ant had to pay a per diem charge of 25c a car to the foreign lines owning the equipment. HELD, that the reason com- plainant could not take delivery was ow- ing to conditions inside the mill itself, and had complainant unloaded the cars it would have had to pay storage room to =!omeone else; under the Circumstances the use of defendant's equipment was ad- vantageous to it. Reparation denied. Riverside Mills v. C. & W. C. Ry. Co., 20 L C. C. 153, 155. (c) Complainants are railroad con- tractors and having finished some con- struction work for the Penn. R. R. near Mexico, Pa., were awarded a contract for the construction of section 6 of a cut-off on the D. L. & W. R. R. near Vails, N. J. They started shipping their extensive equipment from Pennsylvania to Vails, but did not notify the defendant until about the day they commenced shipping. DAMAGES, §4 (d)— §5 (b) 197 The defendant's unloading facilities at Vails consisted of a team track which had always been ample for the needs of that community, but were not suf- ficient to meet the demands of the complainants. They needed two private tracks which they proposed to extend to the place where their new work was to be done. Within thirty days from the time defendant was notified it examined the site, prepared blue prints, etc., and constructed the desired facilities. In the meantime complainant's equipment had arrived and demurrage to the extent of $1,067 accrued. HELD, that the proposi- tion that an interstate carrier is required by law to enlarge its facilities in order to meet the special needs of a single shipper on a given occasion is one that is obviously untenable; and that on the record it does not appear that there was any such undue delay on the part of the defendant in furnishing additional fa- cilities as to make it legally responsible in damages to the complainants. Com- plaint dismissed. Reiter, Curtis & Hild v. N. Y., S. & W. R. R. Co., 19 I. C. C. 29J, 292. (d) Complainant shipped coal in large quantities each month from the Fairmont district, West Virginia, to St. George, Staten Island, N. Y., complainant's ven- dee being the N. Y., N. H. & H. R. R. Co. Under defendant's tariffs it was the duty of complainant to furnish barges at St. George and the duty of defendants to load the coal into them there. Under the tariffs complainant was entitled to an average of five free days on all cars shipped before demurrage charges should begin. The demurrage charges com- plained of were assessed on shipments made in February, in extremely cold weather, when it was doubtful whether the defendant carriers could operate their unloading plant at St. George on account of the extreme cold. Complainant's vendee failed to furnish barges to receive the coal at St. George, and the demurrage charges in question thereby accrued. Under the rules the charges 'vould not have accrued had barges been tendered to defendants to receive the coal, irre- spective of whether defendants would have been able to operate their unload- ing plant at St. George. It appeared that complainant's vendee failed to furnish such barges on account of the congested condition of traffic at its terminals in New York. HELD, the peculiar condi- tions recited did not relieve complainant from the obligation to pay demurrage charges. Reparation denied. Hutchison- McCandlish Coal Co. v. B. & O. R. R. Co. 16 I. C. C. 360, 362. (e) Reparation denied for the accrual of demurrage because consignees refused to accept the shipment. Caddell & Sons v. C. & S. Ry. Co., Unrep. Op. 177. §5. Fault of Shipper. (a) Complainant operates a logging railroad nine miles long, connecting with the line of defendant near Drummond, Wis. In April, 1909. defendant deliv- ered to complainant twenty cars to be loaded with logs by the Tozer Lumber Co. at points on complainant's railroad. Contemporaneous with the completion of the loading of the cars heavy rains be- ^an to fall and the ground to thaw, the two combining to make it impossible to haul the loaded cars over the line of complainant, whose road "is not con- structed as and for a permanent road- bed," and is not used for general rail- road purposes, being laid with light rails and in the main on the surface of the ground. The tracks continued in an un- safe condition until July, 1909, when the cars were moved to the junction with defendant's line and tendered for for- warding. Thereupon defendant demand- ed and complainant paid demurrage at the rate of $1 per day, amounting to $2,136. The tariff under which the charges were assessed provided that the free time for loading cars shall be forty- eight hours, except that when cars are interchanged with minor railroads or in- dustrial plants an additional twenty-four hours will be allowed for switching, after that the charges of $1 per day to be assessed. HELD, the charges complained of were collected in accordance with tariff authority and, therefore, were law- ful, and there is no justification under the circumstances for granting the relief prayed for. Complaint dismissed. Drum- mond & S. W. Ry. Co. V. C, St. h. M. & O. Ry. Co., 21 L C. C. 567, 568. (b) Nov. 12, 1907, a carload of coal was consigned via the Southern Indiana R. R. from Linton, Ind., to complainant at Chicago. November 13 complainant gave a reconsigning order to the South- ern Indiana R. R., directing the car to be forwarded to a fictitious person at Bur- lington, 111., via the I. C. R. R. On the same day complainant wrote a letter to the I. C. R. R. at Chicago, directing a change of billing and consignment from Chicago to Charles City, la. The I. C. Ids DAMAGES, §5 (c)— §8 (b) R. R. did not receive the order. Novem- ber 25 complainant traced the car to Bur- lington and gave instructions to defend- ant to forward it to Charles City. De- fendant exacted $2 reconsigning charge and $5 demurrage charge. HELD, the I. C. R. R., having failed to receive the reconsigning order of November 13, had acted v^rith due diligence and the demur- rage charges were rightfully collected. Sage & Co. V. I. C. R. R. Co., 18 I. C. C. 195, 196. (c) There should be no demurrage assessed on a shipment held in transit because consigned to a prepay station on a connecting line on which charges were not prepaid. Tioga Coal Co. v. C, R. I. & P. Ry. Co., 18 I. C. C. 414, 415. §6. One Shipment in Two Cars. See AHowances, §14 (h); Bill of Lading, §5; Cars and Car Supply, §7; Refrigeration, §3 (h). (a) Complainant attacked demurrage and switching charges on a carload of wheat, Ogden to Durango, Colo., for services at Durango. At Montrose, Colo., the shipment was transferred into two cars, the D. & R. G. R. R. being a nar- row-gauge line from that point. De- fendant's tariffs of class rates from Grand Junction to Durango made specific pro- vision for the application of minimum weights through to destination, notwith- standing the fact that a carload shipment is transferred into two narrow-gauge cars en route, and it appeared that in connec- tion with this particular shipment these rules were applied. HELD, that the de- murrage and switching charges assessed on this shipment were unreasonable to the extent they exceeded the charges ap- plicable upon it as a one car shipment at destination. Reparation awarded. Kay Co. V. D. & R. G. R. R. Co., 21 I. C. C. 239. (b) Under a tariff rule which pro- vides for the carload rate on any ship- ment which is more than one carload and less than two, under certain condi- tions, if the shipment is sent forward in two cars under a single bill of lading and it should happen that one car should be delayed so that it might be held for some time at destination awaiting the ar- rival of the other, demurrage charges will not accrue until the entire shipment covered by the bill of lading is delivered. Scudder v. T. & P. Ry. Co., 21 L C. C. 60, 61, 62. (c) A larger consignment shipped on one day to one consignee than could be loaded in one car; balance, if loaded in box car, carried at the carload rate on the actual weight. HELD, complainant not entitled to reparation by failure to load balance in box car as tariff rule re- quired. Hartford Canning Co. v. C, M. & St. P. Ry. Co., Unrep. Op. 288. §7. Order-notify Shipments. (a) The placing of a car containing an order-notify shipment on a team track and the giving of notice to the consignee amounts to a discharge of the carrier's obligation in the matter of delivery, at least until the bill of lading is sur- rendered. Roden Grocery Co. v. A. G. S. R. R. Co., 21 I. C. C. 469, 471. (b) Complainant had shipped to it canned tomatoes in carloads from Trout- ville, Va., to Birmingham, Ala., under an "order-notify" bill of lading containing the provision that "the surrender of this original order bill of lading, properly in- dorsed, shall be required before the de- livery of the property." Upon arrival at destination consignee was given no- tice, but did not surrender the bill of lading for four days. Demurrage tariffs contained a provision that forty-eight hours' free time "when cars are held for loading or unloading, and but twenty-four hours free time "when cars are held for reconsignment or switching orders." HELD, demurrage was collectible after the expiration of twenty-four hours, be- cause the free time for unloading was still allowable after the car had been placed in position for unloading at com- plainant's warehouse. Roden Grocery Co. V. A. G. S. R. R. Co., 21 I C. C. 469. §8. Pending Dispute. See Reparation, §15 (a). (a) Pending a dispute as to the law- ful charges to apply to a shipment to which there was no lawfully applicable rate and on which the carrier eventually exacted a rate subsequently found un- reasonable by the Commission, demur- rage charges accrued and were collected by the carrier. HELD, the demurrage charges should be refunded. Wheeler- Holden Co. v. L. & N. R. R. Co., 21 L C. C. 237, 238. (b) Reparation will be awarded for demurrage charges assessed and col- lected by a carrier which accrued during a dispute concerning an unreasonable freight rate exacted by it. Jones Bros. Co. V. M. & W. R. R. R. Co., 21 L C. C. 577, 580. DAMAGES, §8 (c)— (h) 199 (c) Complainants ship.-e: chip board, Milwaukee, Wis., to Spokane, Wash. Tariff provided for binders' board, wood pulp board, box board and various similar kinds of board, including wood pulp cartons, but did not specifically mention chip board. At destination delivering carrier reclassified shipment and collect- ed rate on the so-called chip board under tariffs providing for rates on boxes, paper or paste board, foldinp: egg cartons, etc., and printed chip board cut and shaped for shirt fronts. Chip board is a product similar to wood pulp board, but of less value, and in nowise similar to those articles which took the higher rate which the delivering carrier exacted before it would deliver the shipment. Consignee had unloaded part of the ship- ment and was compelled to cart it back to the car. During the controversy about the additional freight charges demurrage charges accrued, which consignee was finally obliged to pay. HELD, the in- creased rate exacted was unreasonable, as the shipment was correctly classified in the first place; that the, demurrage was exacted through the fault of the car- rier, and the expenditure due to remov- ing and restoring a part of the carload the direct consequence of t'le unlawful act of the delivering carriers in declining to deliver the carload until the increased charges due to reclassification were paid. Reparation awarded for the Increased rate, demurrage and cartage. Schulz Co. V. C, M. & St. P. Ry. Co., 20 I. C. C. 403. (d) Defendant assessed demurrage under lawful tariff authority pending a controversy concerning the payment of freight charges owing to cancelation of complainant's credit account. HELD, re- gardless of the carrier's reasons for can- celing a credit account it is undoubted that it may demand its legal charges before delivering freight, and demurrage accruing during a controversy as to such payment cannot be refunded on that ground alone, but it must be shown that the charges are unreasonable or unjustly discriminatory. Fisk & Sons v. B. & M. R. R., 19 I. C. C. 299. 300. (e) Demurrage and storage charges collected as the result of carriers de- manding rates in excess of those in their legally filed tariffs must be refunded, and this principle applies to cases in which charges are demanded on ship- ments as to which no rates are pub- lished, but on which the carrier attempts to exact an unreasonable rate, precipi- tating a controversy during which de- murrage accrues. Northern Lumber Mfg. Co. v. T. & P. Ry. Co., 19 L C. C. 54, 55. (f) The consignee is released from obligation to pay demurrage accruing during pendency of a dispute when the delivering carrier demands more than the lawful rate. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 5. (ff) On a shipment of an emigrant's outfit from Fletcher, Okla., to Bovina, Tex., the delivering carrier demanded a charge of 68c, the lawful rate being 62c. The shipper refused to pay more than 37c, which rate was quoted to him by the initial carrier. On account of this refusal, demurrage charges accrued and the property was sold to pay the freight. HELD, the shipper was not subject to the demurrage charges. When the de- livering carrier demands more than the lawful rate, the consignee is released from the obligation to pay demurrage charges accruing during the pendency of the dispute as to the lawful rate. Porter V. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 5. (g) Where a carrier demands its reg- gularly published charge and the shipper delays unloading, on the ground that the same is unreasonable, the shipper is liable for demurrage charges and cannot recover the charges, although the Com- mission holds the rate exacted to be un- reasonable and awards reparation for the excess charged. Coomes v. C, M. & St. P. Ry. Co., 13 I. C. C. 192, 195. (h) A shipment of lumber consigned to East St. Louis, 111., arrived at Bixby at 1:45 p. m. Aug. 31, 1907. On the night of August 31 complainant mailed a written order from Kansas City, direct- ing delivery to Granite City, 111. This order was not received until Monday, September 2. Under the published tariff the free time allowed for reconsignment was twenty-four hours from the first 7 a. m. intervening after arrival of the shipment, Sundays and legal holidays ex- cluded. September 2 was Labor day. Delivery was not effected at Granite City until 8:30 a. m. September 5, and delay in reconsigning the car after receipt of order was due to the fact that the con- signee was not on the credit list of the defendant carrier, and it was necessary to take up with consignee the question of payment of freight charges. Defend- ant company assessed a car service charge of $1 per day for September 4 and 5. HELD, such car service charge 200 DAMAGES, §8 (i)— §9 (d) was improperly collected and should be refunded. Beekman Lumber Co. v. St. L. S. W. Ry. Co., 14 I. C. C. 532, 584-535. (1) Where a carrier provides in its tariff for reconsignment, without any re- quirement for prepayment of freight or guaranty of the same, it may not law- fully charge demurrage for time during which it holds the shipment while parley- ing with its connections as to advance ment of its freight charges. Beekman Lumber Co. v. St. L. S. W. Ry. Co., 14 L C. C. 532, 534. (j) Consignee refused to accept ship- ment pending dispute over rates; car- rier willing to deliver. Charges cannot be waived. Dodds Lumber Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 14. §9. Prior to Actual Delivery. (a) Under a rule providing that de- murrage on cars of coal destined for transshipment by water shall be com- puted between the date of arrival of each car and the date released, the "date of arrival" means the day the car reaches the yards, and not the day the shipper receives notice from the carrier of such arrival, and the "date released" means the day upon which the car again be- comes available for transportation by be- ing -relieved from one service and free to enter upon another, and not the day a vessel is tendered for loading by the shipper, where no evidence is introduced to show that by custom the terms have come to have another meaning. Central R. R. Co. of N. J. V. Hite, 166 Fed. 976, 978, 979. (b) Complainant refused to accept from defendant bales of cotton shipped from Vicksburg, Miss., to complainant at New Bedford, Miss., for upon inspection it appeared that the marks of identifica- tion had been, by rough handling, so obliterated and removed that it was im- possible to tell whether the cotton was for complainant or not. Complainant sought reparation for payment of storage charges on the shipment. HELD, stor- age charges cannot begin to accrue until freight has been tendered under such circumstances that consignee is legally obliged to receive the same. If marks on shipment are so obliterated through negligence of carrier that property could not be identified, the shipper is under no obligation to take what might not be his property. Reparation awarded. Kil- burn Mills v. N. Y. N. H. & H. R. R. Co., 22 I. C. C. 21, 22. (c) Defendant B. & O. R. R. and C. M. & St. P. R. R. were parties to a tariff which provided that coal billed flat to Chicago could be reconsigned free within 24 hours to points in the Chicago switch- ing district and that the switching charges would be absorbed by the line carrier. The C. M. & St. P. R. R. issued a so- called regulating embargo under which it refused to accept cars of the com- plainant, who was located on its line, at various intervals owing to congestion of its terminals. Complainant reconsigned its cars according to the tariff, but was compelled to pay demurrage to the B. &. O. R. R. owing to the refusal of the C. M. & S. P. R. R. to receive cars from the B. & O. R. R. under the regulating embargo. HELD, that demurrage may not be assessed except for, or because of, failure on part of shipper or consignee to comply with his obligations and that where a switching service is yet to be performed delivery has not been effect- ed; that consignee having done every- thing it could and being able to receive its cars was not required to pay demur- rage simply because it was located on the C. M. & St P. R. R. and that carrier refused to accept its cars; and that the B. & O. R. R. not being a party to the tariff could not lawfully assess the de- murrage. Reparation awarded. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 20 L C. C. 559. (d) A carload of ashes from Bay City, Mich., consigned to Williamson's siding, Norfolk, Va., on its arrival at Norfolk was not turned over immediate- ly by the N. & W. R. R. to the N. & S. R. R. to be delivered at said siding, for the reason that Williamson's siding was a prepaid point and the charges to Nor- folk had to be paid before delivery could be made to such siding, which was just outside the switching district of Norfolk. Complainant was assessed demurrage charges for the time the car was delayed at Norfolk. HELD, such charges were improper. Demurrage as a general rule is assessable against a carload shipment only at point of origin or destination, or at the reconsigning or transit point, ex- cept where the tariffs clearly specify that they may be assessed otherwise. Rep- aration awarded. Munroe & Sons v. M. C. R. R. Co., 17 L C. C. 27, 28. DAMAGES, §9 (e)— §10 (e) 201 (e) Where a rate on coal to tide-water ports destined for transshipment is not a part of a through rate, and 95 per cent of the coal is either for vessel bunker use or is consumed in the immediate neighborhood of such ports, the coal upon arrival at the piers is at destination so as to allow the imposition of demurrage charges for delays in unloading into ves- sels. Peale, Peacock & Kerr v. Central R. R. Co. of N. J., 18 I. C. C. 25, 30. (f) Where a carrier attempts to place cars moving in interstate commerce for unloading on a team track immediately upon arrival, and is prevented from do- ing so by the fact that the track is full of other cars waiting to be unloaded by the consignee, and thereafter places the cars on the team track as rapidly as the consignee is able to take care of them, it cannot be defeated in its right to recover demurrage charges by the fact that it did not at once place all the cars on the team track. Nebraska Transfer Co. V. C. B. & Q. R. R. Co. (Neb., 1912), 134 N. W. 163, 166. (g) A railroad provided no public track for the unloading of freight cars at plain- tiff consignee's station and was ac- customed to switch same to plaintiff's private siding for unloading. In the in- stance in question it failed to switch the cars to such siding, but left them on a side storage track between plaintiff's station and another station and some 3,000 or 4,000 feet from plaintiff's plant. On such storage track the cars had never, therefore, reached their final destination and still required the intervention of a switching engine and crew. HELD, there was no constructive delivery of the cars, such as to entitle defendant carrier to collect demurrage charges filed with the Interstate Commerce Commission and as- sessable for failure of a shipper to un- load the cars after notice and while the same were standing on storage tracks. Carrizzo v. N. Y. S. & W. R. R. Co., 66 Misc. 243, 248, 123 N. Y. Sup. 173. §10. Private Cars. (a) The provision in the "Uniform Demurrage Code" permitting a railroad to make a demurrage charge against the private cars of the shipper after they have been delivered to him and are standing on his private tracks, is sustainable as a reasonable regulation to prevent a shipper from withdrawing such cars from service and thereby disturbing the car supply of the carriers, which have relied upon the private cars as a part of their equipment. Proctor & Gamble Co. v U. S., 188 Fed. 221, 228, sustaining 19 I. C. C. 556; reversed on other grounds, 225 U. S. 282, 32 Sup. Ct. 761, 56 L. ed. 1091. Hooker Knapp, 225 U. S. 302, 32 Sup. A. 769, 56 L. ed. 1099. (b) Empty privately owned cars, while remaining on privately owned tracks, and not "placed for loading" by the carrier, are not subject to demurrage charges under tariffs of defendants. Rep- aration awarded for demurrage charges collected under such circumstances. Central Commercial Co. v. G. & S. I. R. R. Co., 23 I. C. C. 532. (c) The rule of defendants providing for the assessment of demurrage on pri- vate cars while standing on private tracks, and that if private cars are re- turned under load railroad service is not at an end until the lading is removed, held to be reasonable, as the law does not impose upon defendants the obli- gation of hauling complainant's private cars, and if used it must be under an ar rangement subscribed to by both and stated definitely in defendant's tariffs; and defendants are within their lawful rights in imposing the foregoing condi- tion. Proctor & Gamble v. C. H. & D. Ry. Co., 19 I. C. C. 556; sustained, 188 Fed. 221, 228; reversed on other grounds, 225 U. S. 282, 32 Sup. Ct. 761, 56 L. ed. 1091. (d) Following the ruling of June 2, 1908. to the effect that the decision in In The Matter of Demurrage Charges on Privately Owned Tank Cars, 13 I. C. C. 378, would not be given retroactive effect with respect to reparation for de- murrage charges, reparation Is denied for such charges paid under protest sub- sequent to said decision for the delay of cars owned by private lines on complain- ants' private tracks occurring prior to said decision. Cambria Steel Co. v. B. & O. R. R. Co., 15 I. C. C. 484, 485. (e) Private cars owned by shippers and hired to carriers upon a mileage ba- sis are subject to demurrage when such cars stand upon the tracks of the car- rier, either at the point of origin or des- ^ination of shipment, but arc not so sub- ject when upon either the private tracks of the owner of the car or the private tracks of the consignee. The carrier must charge demurrage In all cases 202 DAMAGES, §11 (a)— (k) where such demurrage is imposed by tariff provision upon its own equipment, except when a privately owned car is upon a privately owned siding or track, and the carrier is paying, or is responsi- ble for no rental or other charge upon such car; and a privately owned car in the sense in which that expression is here used, is a car owned and used by an individual, firm or corporation for the transportation of the commodities which they produce or in which they deal. In Re Demurrage Charges on Privately Owned Tank Cars, 13 I. C. C. 378, 381. III. PUBLICATION AND TARIFF. See Tariffs. §11. Obligation to File. (a) Where demurrage charges have been duly filed and published with the Interstate Commerce Commission, the carrier and the shipper can not by agree- ment between themselves cancel such charges on the ground that the carriers' tracks were torn up and the shippers' tracks were in bad condition, thereby causing delays, or on the ground that such charges were discriminatory be- tween competing shippers, and where the carrier and shipper knowing the publish- ed demurrage charges cancel the same, they are criminally liable under the In- terstate Commerce Act as amended by the Elkins Act of February 19, 1903, and the Hepburn Act of June 29, 1906. Le- high Valley R. R. Co. v. U. S., 188 Fed. 879, 887. (b) Terminal charges being part of transportation and demurrage charges being included in the term "terminal charges," the failure by a carrier to ob- served demurrage tariffs filed and pub- ished by it and the soliciting and receiv- ing of concessions with respect to demur- rage charges are misdemeanors for which a prosecution will lie under the Elkins Act of February 19, 1903, and the Hepburn Act of June 29, 1906. Lehigh Valley R. R. Co. v. U. S., 188 Fed. 879, 886. (c) Demurrage is a terminal charge for transportation within the meaning of section 6 of the Act of 1887, as amended by the Act of 1889, and of the Act of 1906, which requires the filing with the Inter- state Commerce Commission and print- ing and keeping open for public inspec- tion of schedules showing all the rates, fares, and charges for transportation. Lehigh Valley R. R. Co. v. U. S., 188 Fed. 879, 885. (d) It has been uniformly held by the Commission that a shipper or con- signee may not be required to pay a de- murrage charge, unless the carrier's tar- iffs provide for the same in clear and specific form and manner. Crescent Coal & Mining Co, v. B. & O. R. R. Co., 20 I. C. C. 559, 569. (e) A carrier which has no tariff provision authorizing a demurrage charge under the circumstances of the particular case should refund demurrage which has been collected. Beekman Lumber Co. v. Louisiana Ry. & N. Co., 19 I. C. C. 343, 347. (fg) Where the tariffs of a carrier do not contain any provisions authorizing the collection of demurrage, on a car- load shipment held in transit because consigned to a prepay station on a con- necting line on which freight charges are not prepaid by the shipper, the exaction of demurrage is unlawful. Tioga Coal Co. V. G. R. I. & P. Ry. Co., 18 I. C. C. 414, 415. (h) The fact that a shipper is not given personal notice of the promulga- tion of a carrier's demurrage regulations neither vitiates the latter's right nor lessens its duty to impose demurrage charge incurred under the rules contain- ed in its lawful tariff. Peale, Peacock & Kerr v. Central R. R. Co. of New Jersey, 18 I. C. C. 25, 33. (i) The requirements of the Act with respect to the publication, posting, and filing of " all terminal charges, storage charges, icing charges, and all other charges which the Commission may re- quire," remove from the carrier and from the shipper the right which existed under the common law to contract in re- ference to demurrage charges, on any ba- sis other than that specifically set forth in the carrier's published tariffs, Peale, Peacock & Kerr v. Central R. R. Co. of New Jersey, 18 I. C. C. 25, 33, (j) Where demurrage charges are im- posed for detention of cars at a point other than that specified in the bill of lading, there must be definite tariff authority therefor. U. S. v. D. & R. G. R. R. Co., 18 I. C. C. 7, 9. (k) On cars of cement billed from Independence, Kan., to complainant at "Mile Post 679," a switch built at ex- DAMAGES, §11 (D— §14 (d) 203 pense of complainant and defendant, the sole property of defendant, near This- tle Junction, Utah, and retained at This- tle Junction, there accrued demurrage of $440. Defendant's tariff provided for demurrage on such cars as were not de- livered for reasons beyond control of the carrier. At no time was the switch filled with cars consigned to complainant, but at the request of complainant the defend- ent delivered only a limited number of cars per day. HELD, that the act of de- fendant in retaining cars at Thistle Junc- tion at request of complainant was not Induced by a reason beyond its control, and as demurrage charges were not as- sessed in accordance with any provision In defendant's tariff they did not consti- tute a valid claim against complainant. (Prouty, Comm'r, dissenting.) U. S. v. D. & R. G. R. R. Co., 18 I. C. C. 7, 9. (1) Demurrage assessed without tar- iff authority on car detained at interme- diate point through no fault of shipper, wrongfully imposed. Germain Co. v. N. 0. & N. E. R. R. Co., 17 I. C. C. 22; Mon- roe & Sons V. Mich. Cent. R. R. Co., 17 I. C. C. 27. (m) Where a "carrier provides in its tariff for reconsigment without any re- quirement for prepayment of freight or guaranty of the same, it may not lawful- ly charge demurrage for time during which it holds the shipment while parley- ing with its connections as to advance- ment of its freight charges. Beekman Lumber Co. v. St. L. S. W. Ry. Co., 14 1. C. C. 532, 534. IV. DEMURRAGE RULES. §12. Construction In General. (a) In the framing of demurrage reg- ulations the object sought is the prompt release of cars. It is not intended that they should be so liberal as to defeat the end sought to be attained, but their pur- pose is to stimulate a shipper to aid the carrier in serving all shippers. Peale, Peacock & Kerr v. C. R. R. Co. of N J., 18 I. C. C. 25, 36. (b) The primary object of demurrage regulations is to release cars after a cer- tain period, not to reward a shipper for releasing them in less than that period. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 L C. C. 25, 32. §13. Average Demurrage Plan. (a) Complainant engaged in milling grain in Louisville, Ky., complained of demurrage charges collected by defend- ant in the sum of $145, and claimed they should have been assessed upon the aver- age demurrage plan in the sum of $73. Defendant allowed shippers the average demurrage plan upon the receipt of a bond of a specified form signed by the shipper and a surety, which bond waived notice by surety of default. Complain- ant's surety at first refused to sign such a bond. Meantime, charges were made that are attacked. HELD, that the rule prescribed by the defendant was not un- reasonable. Complaint dismissed. Wash- burn-Crosby Milling Co. v. Sou. Ry. Co., 22 I. C. C. 465. §14. Bunching. (a) The fact that two carloads are shipped on one day and one the next from the same point of shipment to the same destination, and one car arrives on one day and two on a subsequent day, does not constitute bunching within the meaning of the demurrage rules. North- ern Wisconsin Produce Co. v. M. St. P. & St. Ste. M. Ry. Co., 21 L C. C. 197, 198. (b) Complainant, shipper of creosoted lumber at New Orleans, ordered 200 cars of defendant to be delivered at the rate of four a day. Defendant sometimes sup- plied more and sometimes less than this number. On certain days it furnished as many as 21 cars. Complainant made no protest when said large numbers were supplied, and one time informed defendant it was ready to load 50 cars if it could get them. Demurrage charges accumu- lated on the cars irrespective of the num- ber per day furnished, said charges often being the fewest when the largest num- ber of cars was being furnished. Com- plainant also loaded the cars without at- tention to the order in which they were received. HELD, complainant was not entitled to escape demurrage charges on account of the manner in which the cars were supplied to it. American Creosot- ing Works v. I. C. R. R. Co., 15 L C. C. 160, 163. (c) If it were shown that complainant protested against the setting in of too many cars at one time, and its voice and protest had been ignored, there might be room to find that the demurrage charges resulting were unreasonable. American Creosoting Works v. I. C. R. R. Co., 15 I. C. C. 160. (d) There is nothing unreasonable or unlawful about a tariff rule which pro- 204 DAMAGES, §14 (e)— §15 (f) vides that in the event of the carrier's bunching a shipper's cars and delivering them in excess of the shipper's facilities and ability to load or unload, demurrage will not accrue. American Creosoting Works V. I. C. R. R. Co., 15 I. C. C. 160, 164. (e) Unreasonable delays in transpor- tation should not cause demurrage to ac- crue. Lynah & Read v. B. & O. R. R. Co., 18 I. C. C. 38, 46. (f) Large number of cars held outside private sidetrack awaiting delivery, due to complainant having more business than facilities to handle it, does not con- stitute a "bunching in transit" by the delivering line. Brooklyn Cooperage Co. v. I. C. R. R. Co., 22 I. C. C. 358. (g) Complainant, manufacturer of bar- rels at New Orleans, La., alleged that cer- tain demurrage charges collected by de- fendants were unreasonable. It has a plant reached by a sWitig able to accom- modate eight cars. The I. C. R. R. re- fused to accept cars to deliver to this sid- ing from the connecting carriers, at times, because of inability to get on the siding, for which delays the carriers ex- acted demurrage charges. Complainant claimed the I. C. R. R. was negligent in placing cars on the switch. HELD, that delay was due to lack of switch capacity. Reparation denied. Brooklyn Cooperage Co. v. L C. R. R. Co., 22 L C. C. 358. (h) Unreasonable delays incident to the railroad transportation of coal to tide- water are within the power of the car- rier to prevent, and they should not be permitted to be the cause of demurrage against consignees. Lynah & Read v. B. & O. R. R. Co., 18 L C. C. 38, 46. (i) The tariff may provide for a waiver of demurrage charges when cars are bunched in transit. American Creo- soting Works V. I. C. R. R. Co., 15 I. C. C. 160, 164. §15. Free Time. (a) The public is entitled to a reason- able time in which to load or unload, which should not be shortened because of adverse weather conditions. Murphy Bros. V. N. Y. C. & H. R. R. Co., 21 I. C. C. 176, 177. (b) The application of the uniform demurrage code in such manner as not to exclude Saturday afternoon in the com- putation of free time allowance does not operate in an unreasonable or unlawful manner in Philadelphia territory, and ought not to be modified, so as to allow it to apply in that territory in any dif- ferent manner from that in which it ap- plies elsewhere. Commercial Exchange of Philadelphia v. P. R. R. Co., 21 I. C. C. 1, 4. (c) No objections exist to providing in a tariff that when a consignee has neg- lected to unload a carload shipment within the free time provided in the car- rier's demurrage rule, the carrier may unload it, and that when this is done a charge will be assessed therefor. If, however, the demurrage charge per day should be more than the charge for un- loading a car, it would be necessary to provide that such shipments must be un- loaded by the carrier, as otherwise favoritism might be practiced. Schultz- Hansen Co. v. S. P. Co., 18 I. C. C 234. 237. (d) Consignee's delay in furnishing vessel should not be included in free time allowed. Lynah & Read v. B. & O. R. R. Co., 18 I. C. C. 38. (e) Free time allowance does not fol- low car on sold or reconsigned shipments if original consignee is operating under average plan; not so when under straight demurrage. Lynah & Read v. B. & O. R. R. Co., 18 I. C. C. 38, 45. (f) Complainant attacked the demur- rage regulations of defendant, B. & O. R. R. Co. and its subsidiary, in allowing at Locust Point and at Curtis Bay, Md., five days' free time on tide-water coal for transshipment, computing on the average monthly and 12 days' straight time, and alleged the same to be unreasonable per se and discriminatory, as compared with the seven days' average time and the 15 days' straight time allowed by defendant at Jackson street, Philadelphia, and at St. George. The tariffs of other carriers pro- vided at Wilmington, Del., Philadelphia, Pa., and Port Reading, N. J., seven days' average and 15 days' straight free time; at South Amboy, N. J., Harsimus Cove (Jersey City), N. J., and Baltimore, Md., five and 12 days; at Norfolk and Lambert Point, Va., seven days' average, no straight time, and at Newport News, even days' average, no straight time. The average net detention for a period of two years was in the vast majority of cases at Locust Point, Curtis Bay, Jackson St. and St. George, less than the free time DAMAGES, §15 (g) 205 allowed. The average for the whole pe- riod at Locust Point and Curtis Bay was 3.1 and 3.30 days, respectively. The aver- age time used month by month at all of these ports was, generally speaking, con- siderably less than the free time ac- corded. Some of the largest shippers, however, furnished their own boats and this served to make the average delivery at the low figures given. The rate on which the coal moved to tide-water in- cluded the service by defendant of dump- ing into the vessels. The line or local shipper furnished his own storage facili- ties and was accorded only 48 hours' free time, whereas complainant and others transhipping coal used defendant's cars for storage facilities. Although defend- ant was at Philadelphia and New York subjected to the competition of other car- riers, the competition was not sufficiently open to require defendant's competitor to grant Philadelphia, Baltimore or Jer- sey City more than five days' average and 12 days' straight free time. Defendant's contention that it was compelled to allow longer free time at Philadelphia in order to prevent the diversion of coal from its line at Martinsburg or Cherry Run, Va., with a consequent loss of revenue to an- other carrier, which would dump same over its piers, was not sustained, since defendant must necessarily be a volun- tary party to any arrangement leading to such diversion. Coal moving over the piers at Locust Point and Curtis Bay was actively in competition with tide-water coal transported by defendant and mov- ing over the piers at Jackson street, Philadelphia. The regulations attacked provided that free time should begin to run at the date of arrival of the car at the yards. Complainant further demanded that free time should follow a car when the consignee or destination of the same was changed. HELD, that the regulci- tions as to free time attacked were not shown to be unreasonable per se; that on account of competitive conditions at St. George the circumstances were not Bo similar as to make it unjustly dis- criminatory to grant longer free time at St. George than at Locust Point and Curtis Bay; that the conditions at Jack- son street, Philadelphia, were, however, 30 similar to those at Locust Point and Curtis Bay that complainant was sub- jected to undue prejudice in not being accorded the same free time at Locust Point and Curtis Bay as at Jackson street, and reparation should be awarded; that following Peale, Peacock & Kerr v. C. R. R. of N. J., 18 I. C. C. 25, complain- ant's demand that demurrage should be computed on the average plan yearly, instead of monthly, should be denied, but that free time should begin to run at 7 a. m. of the day following the day of ar- rival at the yards and the sending of notice by defendant; that complainant's demand to have the average computed on the average delay at all of defendant's tide-water points should be denied, since so to do would result in congestion of terminal facilities at particular ports; and that where a car was transferred be- fore the expiration of free time, the transferee should have the benefit of the unexpired straight free time, but should not be accorded this privilege where the original consignee was operating under the average monthly plan. Lynah & Read v. B. & O. R. R. Co., 18 L C. C. 38, 44-47. (g) Complainants attacked the demur- rage regulations of defendant on coal and coke for transshipment at the tide-water ports of Elizabeth, Port Johnson, Port Liberty, Communipaw Pier and Communi- paw Dump, as unreasonable per se and discriminatory in favor of large shippers, of lake ports, where no demurrage regu- lations were in effect, of southern ports and New York harbor points where the free time was greater and rules more liberal, and in favor of competitors in bituminous coal markets shipping over railroads operating under embargo and under unenforced demurrage regulations. The rule attacked provided that after five days, upon the average computed for the calendar month, demurrage at the rate of $1 per car per day should be charged; and that monthly statements should in- clude only cars released during the month. Complainants demanded that average demurrage time be computed by the year instead of monthly. Under the rates attacked defendant furnished the service of unloading the cars into vessels at the piers. These piers were amply able to deliver the traffic offered and the delays resulting in demurrage charges arose from the chartering of vessels and bringing them to the piers for loading. Defendant had no control over these ves- sels. The evidence failed to show that the large shippers escaped demurrage, but rather showed the reverse. On local shipments to New York the rate was higher, with 48 hours' free time or 24 206 DAMAGES, §15 (h)— (k) hours on the average plan for unloading. The local shipper provided storage facili- ties at the ports, whereas complainants furnished none. The coal market was active from October 1 to March 15, and dull the remainder of the season. Dur- ing the active market the cars could be promptly unloaded and the purpose of complainants' demand for demurrage computed on a yearly average was to en- able them to retain the coal in defend- ant's cars during the dull season without Incurring demurrage charges. Under the rules attacked complainants' cars in- curred demurrage only in 11 months out of a period of 27 months. While more liberal demurrage rules obtained at other tide-water points such as Norfolk, Lam- bert Point, Newport News, Sewall's Point, St. George and Port Reading, these points were some distance from the cen- ter of distribution in Manhattan, were less desirable as piers, and the competi- tion with them was negligible. HELD, the rules attacked were not unreasonable per se, since it was the duty of defendant to expedite the release of its cars and since the delays in unloading resulting in demurrage arose from the uncertainties of water craft over which defendant had no control; that since the rules applied to all of defendant's ports and were uni- form, they were not unduly discrimina- tory in favor of other ports served by other carriers; that an extension to a year of the computation period would be an unjust nullification of defendant's de- murrage regulations; and that in compu<^- ing free time the day of arrival should be excluded and the first day counted from 7 a. m. on the day succeeding the day of arrival, although the day of re- lease should be included in such compu- tation. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 36. (h) A carrier should grant a reason- able time for unloading. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. (i) Fact that free time might be easily extended, no reason that it must be. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. (j) Unlimited free time at New Or- leans on through export shipments of forest products, no discrimination against local shipments "for export" on which free time is limited. New Orleans Board of Trade v. I. C. R. R. Co., 17 I. C. C. 496, 502. M, (k) Shippers of forest products to New Orleans on local bills of lading for export were assessed after the expiration of 10 days' free time, demurrage charges of $1 per day and storage charges of Ic per 100 lbs. for the first 10 days or frac- tion thereof, after the free time, and for each additional 10 days or fraction there- of, %c per 100 lbs., with the provision, however, that the storage charge should not exceed the demurrage charge for the same time. Shippers on through export bills of lading were assessed no demur- rage or storage charges at New Orleans. Complainant attacked said charges and demanded that on local bills of lading for export the shipper should have five days at New Orleans within which to name vessel and ship line and 15 days thereafter free time. Shippers on local bills for export enjoyed certain advan- tages over shippers on through bills for export. The former were able to control the shipment at New Orleans and often able to secure steamer space at reduced rates, where the steamer took on their products in order to make up a cargo. On a through export bill forest products might be inspected at New Orleans, but not rejected. On a local bill for export they might be both inspected and re- jected. On a through export bill the mill was informed of the destination and ulti- mate purchaser in Europe and such pur- chaser learned the name of the seller and the point of origin. Traffic under through bills was under the control of the car- riers and was often delayed in transport to New Orleans when the carriers knew it would meet with congestion at that point, whereas, under local bills for ex- port, the carrier was obliged to move the shipment promptly to New Orleans, be- ing unaware of what steamship arrange- ments the shipper might have made. As a result, shipments on local bills for ex- port moved in times of congestion more quickly than those on through export bills. Formerly the carriers allowed 20 days' free time on shipments under local bills for export. The reducing of said time to 10 days resulted in materially lessening the time cars were detained for unloading at New Orleans, and the ex- perience under the new rule indicated that, on an average, shippers did not de- tain cars but little over 10 days. The new rule materially reduced congestion at New Orleans. The 10 days' free time allowed was greater than at any other port south of Norfolk. The domestic DAMAGES, §15 (1)— §17 (b) 207 shipper to New Orleans was allowed only 48 hours' free time and paid the same rate as the export shipper. The rule attacked applied to all commodities. HELD, the rule attacked was not unreasonable, but designed to prevent congestion and to re- lease the cars of the carriers so as to en- able them properly to serve the public. New Orleans Board of Trade v. I. C. R. R. Co., 17 I. C. C. 496. 502. - (1) Defendant's rules provided that 48 hours' free time should be allowed ship- pers for unloading cars, computing from the first 7 a. m. after the same were placed for unloading, and prompt notice should be given to consignees. HELD, on cars at Melrose Station, New York City, and Yonkers, N. Y., the 48 hours of free time should begin to run from the first 7 a. m. after the time notices of the arrival of cars were sent to the consignees and not from the first 7 a. m. after notices were received, such construction being in accord with the rules framed by the Na- tional Association of Railway Commis- sioners, of which a member of the Inter- state Commerce Commission was chair- man. Murphy Bros. v. N. Y. C. & H. R. R. R. Co., 17 L C. C. 457, 460. §16. Placement or Arrival Notices. (a) Notice of arrival does not consti- tute constructive placement where the car is not held by the carrier on account of the consignee's inability to receive it. Northern Wisconsin Produce Co. v. M. St. P. & St. Ste. M. Ry. Co., 21 L C. C. 197, 198. (b) Complainant's sidetrack can ac- commodate two cars, but it can unload into its warehouse but one car at a time. While there was but one car on the side- track defendant issued notice of construc- tive placement on a newly arrived car, but refused to place the same until the other one was unloaded. HELD, that de- murrage was wrongfully assessed. North- ern Wisconsin Produce Co. v. M. St. P. & St. Ste. M. Ry. Co., 21 L C. C. 197. (c) In claims for reparation for de- murrage charges alleged to be wrongfully assessed and involving the question as to the expiration of free time for unloading, and the giving of due notice by the car- riers, the claimant must offer exact proof as to the time notices of the arrival of cars were sent to him by carriers. Mur- phy Bros. v. N. Y. C. & H. R. R. R. Co., 17 L C. C. 457. 459. (d) Complainant operated an iron mine about one mile north of Keene's, N. Y., from which it was reached by a spur track. Coal used by the complainant was unloaded upon a trestle, and cars were treated as placed for unloading when put by the defendant upon this trestle. Upon the arrival at Keene's, of the cars of coal in question consigned to complain- ant, complainant was not notified by de- fendant and was assessed demurrage charges. HELD, defendant having failed to give notice must refund the demurrage charges exacted. Rossie Iron Ore Co. v. N. Y. C. & H. R. R. R. Co., 17 I. C. C. 392. (e) Demurrage charges on coal held to have been unlawfully assessed, under the tariff, for the reason that defendant failed to notify consignee of arrival of cars. Rossie Iron Ore Co. v. N. Y. C. & H. R. R. R. Co., 17 L C. C. 392. (f) Complainant shipped lumber con- signed to itself from Salem, S. C, to Washington, D. C, notifying defendant carrier at Washington to deliver the cars upon payment of freight charges to one, Riley, a lumber dealer at that place. Riley delayed unloading the cars, and after they had stood for some three weeks defendant notified complainant of the situation. Some two weeks later complainant sent a personal representa- tive to Washington who unloaded same and paid the demurrage charges. HELD, complainant was not entitled to have said charges refunded on the ground that de- fendant should have notified it within a reasonable time of the failure of Riley to unload the cars, the practice of defend- ant being to notify the consignor when the consignee refuses absolutely to ac- cept a shipment, but not to do so when the consignee merely delays the unload- ing, because of the objections that con- signees have to the latter practice. Ger- main Co. V. P. B. & W. R. R. Co., 18 I. C. C. 96, 97.. §17. Railroad Errors or Omissions. See Reconsignment, §3 (s). (a) Demurrage is improperly assessed on a car which the carrier refuses to place, although the consignee is prepared to accept delivery on its private side- track. Northern Wisconsin Produce Co. V. M. St. P. & St. Ste. M. Ry. Co., 21 I. C. C. 197, 198. (b) Whether tariff authority or not, it is unreasonable to assess demurrage 208 DAMAGES, §17 (c)— DIFFERENTIALS, §1 (b) against the shipper because of delivering line's refusal to accept the shipment. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 20 I. C. C. 559, 570. (c) Reparation was awarded, demur- rage having accrued as a result of a con- necting carrier's refusal to accept ship- ment within free time allowed for recon- signment. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 20 I. C. C. 559, 570. (d) Reparation awarded where demur- rage accrued as result of defendant's fail- ure to reconsign according to instruc- tions. Hanley Milling Co. v. P. Co., 19 I. C. C. 475. (e) Complainant at Pittsburgh ship- ped a carload of lumber from Ellisville, Miss., and received a bill of lading pro- viding for its carriage to Greenville, Pa., and delivery there to complainant on the tracks of the B. & L. E. R. R. The car was received at Cincinnati by the Erie R. R. and hauled thence to Shenango, Pa., a junction point of the Erie and the B. & L. E. R. Rs., about two miles from Greenville. There was no physical con- nection between these carriers at Green- ville. Upon arrival of the car at Shenan- go, the local Erie agent notified the local B. & L. E. agent. Complainant had sold the lumber to the B. & L. E. R. R. and had undertaken to make delivery at Greenville and to pay all charges to that point. Two days after the shipments moved from Ellisville, complainant for- warded to the B. & L. E. agent at Green- ville an order authorizing delivery to the chief engineer of that road. The car remained at Shenango some forty days and was finally turned over to the B. & L. E. R. R. at the direction of complain- ant, whom the carriers had been attempt- ing to reach by correspondence. After the car had been at Shenango about 30 days, the Erie R. R. transferred the lum- ber to one of its own cars and complain- ant was assessed $9.00 for the cost of the transfer. He was assessed $31.00 for car service by the Erie, for the deten- tion of the car on its tracks at Shenango. In addition he was assessed $13.86 as the charge from Shenango to Greenville. The joint through rate of the carriers participating in the movement from El- lisville to Greenville was 32c, but they had agreed on no division of that rate. Complainant gave no routing instructions and the car might have been moved over several lines from Cincinnati to junction points of the B. & L. E. R. R. HELD, complainant was entitled to the joint through rate of 32c; that the B. & L. E. R. R. was at fault in not accepting the car at Shenango; and the extra charges of $13.86 were unlawful. Germain Co. v. N. O. & N. E. R. R. Co., 17 L C. C. 22, 25. DEPOSITIONS. See Procedure Before Commission, §5 (o). DEPOTS. See Terminal Facilities, §1 (c), §6 (a). DIFFERENTIALS. I. ESTABLISHMENT AND CONTROL. §1. In general. §2. Relation of classification. II. APPLICATION. §3. C. L. and L. C. L. shipments. §4. Through shipments. III. PURPOSE. §5. To equalize conditions. §6. To equalize consuming points. §7. To equalize producing points. CROSS-REFERENCES. See Advanced Rates, §10; Rates. Relative I. ESTABLISHMENT AND CONTROL. See Interstate Commerce Commis- sion, §9 (mm). §1. In General. See Evidence, §31 (b); Reasonable- ness of Rates, §17 (a). (a) The principle of graded rates may be applied to differentials. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 198. (aa) Rate construction on a ton mile basis would give to distance an exagger- ated influence, resulting in relatively pro- hibitive rates beyond certain distances, and the elimination of competition. Dif- ferentials cannot be computed at a fixed rate per mile. Alabama Coal Operators Ass'n V. S. Ry. Co., 21 I. C. C. 230, 233, 234. (b) Where differentials from different competing coal fields have been estab- lished as the outgrowth of years of ex- periment, they ought not to be disturbed by the Commission unless it is certain DIFFERENTIALS, §1 (c)— §3 (a) 209 that justice requires it. Andy's Ridge Coal Co. V. S. Ry. Co.. 18 I. C. C. 405, 410. (c) In determining the proper differ- entials to be established on the rates from competing coal fields to a common consuming point, the interest of the con- sumer must be considered, as well as how the rates should be adjusted so as to permit the widest possible competi- tion. The consumer should be given the privilege of buying at all of the compet- ing fields if that can fairly be done. An- dy's Ridge Coal Co. v. S. Ry. Co., 18 I. C. C. 405, 410. (de) Differentials between competing coal mines to various markets of con- sumption cannot be established upon dis- tance alone; nor can one case be safely made the precedent for another. Much depends upon competitive conditions, and each situation must be considered and disposed of by itself. Andy's Ridge Co. V. S. Ry. Co., 18 I. C. C. 405, 407. (f) Discrimination, though found to exist, not removed because it would in- volve establishment of differential state rate under interstate rate, the Commis- sion having no jurisdiction over state rates. Andy's Ridge Coal Co. v. So. Ry. Co., 18 I. C. C. 405, 407. (g) Nothing is more certain concern- ing transportation in this country, either as to cost of service to the carrier, or value of service to the shipper, than that as the mileage increases the total cost increases, but the cost per ton per mile decreases. It follows, and with particu- lar force as applied to grouped points of origin and grouped points of destina- tion, that differentials either above or below the rates from any given point become less and less important as dis- tance of ultimate destination increases. Stated in other words, differentials di- minish with increasing distance and vanish when the mileage on which the differential is based becomes inconsid- erable in proportion to the total mileage from basing point to destination. Wil- liams Co. V. V. S. & P. Ry. Co., 16 I. C. C. 482, 487. (h) It is a rule of well nigh universal application that as distance increases difference in distance becomes relatively less important. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 296. §2. Relation of Classification. See Relative Rates. (a) It would not be possible to estab- lish differentials from Indianapolis to the Mississippi river which would equalize the charges under the differentials from Chicago unless both lines of differentials were governed by the same classification. Indianapolis Freight Bureau v. C. C. C & St. L. Ry. Co., 23 L C. C. 195, 202. (b) Complainants contend that dif- ferentials should be established from In- dianapolis to the Mississippi river, which, added to the differentials west of that river, would make rates from Indianapolis to the Missouri river not more than 5c per 100 lbs. higher on first class than from Chicago. The Commission in In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, and in In- vestigation and Suspension Docket No. 24, and Warnock Co. v. C. & N. W. Ry., 21 I. C. C. 546, decided the issues present- ed and prescribed a schedule of rates. To give the relief prayed the Western Classification would have to be brought over to Indianapolis or the OflBcial Clas- sification carried through to the Missouri river. To do this would involve wide- spread reductions and adjustments of rates. HELD, the rate adjustment in ef- fect is one under which the territory has been built up and to disturb it as prayed might compel an equalization of rates from all the territory between Buffalo and Chicago to the Mississippi river. Furthermore, the issues presented have been carefully and exhaustively ' consid- ered in the prior proceedings. Defend- ants have complied with the previous or- ders of the Commission and its recom- mendations in those proceedings, and have established an adjustment some- what more favorable to Indianapolis than that which, in the original Indianapolis case, was found to be reasonable, and on further full consideration of the situa- tion it is evident that substantial justice has been done, and that the former con- clusions should be adhered to. Com- plaints dismissed. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195. II. APPLICATION. §3. C. L. and L. C. L. Shipments. See Classification, §5; Reasonable- ness of Rates, §56 (a). (a) Complainant jobbers at Atlanta and other Georgia cities attacked the 210 DIFFERENTIALS, §4 (a)— §5 (b) rates on grain products and hay on ship- ments from Ohio a«d Mississippi river crossings and beyond to points in south- eastern territory, on the ground that the practice of extending the same rates to less-than-carload as to carload shipments was unreasonable in view of the larger expense to the carrier of delivering the less-than-carload traffic. Under the rates attacked the consumers and small deal- ers at Georgia and surrounding points were able to procure these commodities from Ohio and Mississippi river crossings and from Nashville, as cheaply as the larger jobbers who brought in carload shipments. To establish less-than-car- load rates higher than carload rates would have the effect of compelling con- sumers and small dealers at Georgia and southeastern points to purchase from, and pay middle men's profits to the large Georgia and southeastern jobbers, instead of obtaining directly their supplies at lower rates from Mississippi and Ohio river crossings and from Nashville. HELD, that a railroad could not be per- mitted to adopt a system of rate making which enabled a large dealer to drive a email dealer out of the market; that the Commission could not act on the theory that the trade of a particular communi- ty was a vested right belonging to any particular class in that community, especially when so to do would result in the enjoyment of a privilege by that class at the expense of the community at large; and that since the effect of an order prescribing differentials on less- than-carload quantities would be to place a tax on retailers and consumers in order that jobbers in southeastern territory might realize a profit in competition with Nashville jobbers and at the expense of the community, such an order should be refused. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 595. §4. Through Shipments. (a) Defendants' tariffs provided that from points north, west and south of De- troit 2c should be added to the Detroit rate to make the through rate to Wind- sor, Canada. HELD, such arbitrary was available, not only in constructing joint through tariffs, but also in making the rates on through shipments where no joint through rate applied. Windsor Turned Goods Co. v. C. &. O. Ry. Co., 18 I. C. C. 162, 163. III. PURPOSE. , §5. To Equalize Conditions. I See Advanced Rates, §5 (2), (bb), §7 (1), (d); Equalization of Rates, §2. (a) Complainant attacked the rate of J 80c per 100 lbs. for the transportation I of cartridges from Bridgeport, Conn., to Alexandria, La., via New Orleans, as compared with a rate to Lake Charles of 60c, and to Baton Rouge of 41c. Alex- andria is 184 miles from New Orleans; Baton Rouge 80 miles, and Lake Charles | 218 miles. A comparison with the rates i on groceries to these points from eastern seaboard territory disclosed a smaller differential than on ammunition. HELD, the rate exacted was unreasonable to the extent it exceeded 65c. Reparation awarded. Neilson Co. v. La. Ry. & Nav. Co., 23 I. C. C. 254. (b) Complainant is engaged in ship- ping of live stock and packing house products at Tacoma and Seattle, Wash. It purchases live stock at Portland and ships them to Tacoma for slaughter. In 1903, the rate on fresh meat in carloads i was 30c per 100 lbs., Portland to Ta- j coma, and 23c, Tacoma to Portland. On ' live stock the rate was $40.60 from Port- land to Tacoma. In 1907 this rate was reduced to $35 per car, and the rate on fresh meat from Tacoma to Portland raised to 30c per 100 lbs. Later the rate on fresh meat from Portland to Tacoma was reduced to 15c per 100 lbs., with a minimum weight of 30,000 lbs. The in- trinsic reasonableness of the rates was not attacked ; but they were only attacked in their relation to the rate on the fin- ished product in the same direction. Tes- timony was offered to show that in order for complainant to secure as much fresh meat from the live animals at Tacoma as a shipper at Portland would ship in one car to Tacoma it would have to ship two cars of live stock at a cost of $70, while shippers of dressed meat from Portland to Tacoma would have to pay only $50 for the same quantity. When the live stock rate from Portland to Tacoma was $40 per car and the fresh meat rate $60, the difference per car was 32.3 per cent and there was no complaint. At the rates of $35 for live stock and $50 for fresh meats the difference per car was 30 per cent. It was shown that live stock was cheap- er in Portland than in Tacoma; the con- suming territory tributary to Tacoma was larger than in the neighborhood of Port- land and Portland was compelled to pay DIFFERENTIALS, §5 (c)— (d) 211 more than Tacoma for transportation of cattle from points on the Northern Pa- cific and the Great Northern R. Rs. HELD that from the whole record it appears that complainant is seeking to have the Commission equalize Tacoma with Port- land as a slaughtering center. Port- land has advantages as a live stock market due to natural conditions. As they are not shown to be due to un- just arrangement of rates, the Commis- sion cannot equalize conditions. In fix- ing rates on competitive articles, the re- lation between rates on live stock and on fresh meat should be the difference in cost of transportation of such articles. Cost of transportation of live stock and ,its products is approximately the same. The present rates for 100 lbs. on live stock from Portland to Tacoma are lower at the per car rate than the rates on fresh meat. Carstens Packing Co. v. O. & W. R. R. Co., 22 I. C. C. 77, 81. (c) Complainant attacked the rates on coal from points in Missouri (west of the Missouri river), Kansas, Arkansas and Oklahoma, referred to as the southern field, and the rates on lump coal from certain Wyoming and Colorado mines, known as the western field, to Fremont, Neb., as unreasonable and unduly pref- erential to Omaha and Lincoln, Neb. From the southern field the rates on lump coal to Fremont from certain points were $1.89 1/^ as against a rate of $1.30 to Omaha, and from other points $2.19 ^^ as against $1.60 to Omaha, while the rates on nut, pea or slack were $1.60 from al- most all of the points as against a rate to Omaha of from $1.06 to $1.35. It ap- peared that from the southern field the Lincoln differential over Omaha is 15c on all coal, while the Fremont differen- tial is 59 1/2 c on lump and from 25 to 59i/^c on nut, pea and slack. The rates on nut, pea and slack were joint through rates, while the lump rates were combinations on Omaha, but in this proceeding are treated as joint rates. The Fremont dif- ferential on lump coal from the western fields is 35c over Lincoln and Omaha, which take the same rate. Fremont is 37 miles west of Omaha, with a population of 10,000 to 12,000 inhabitants, and for the year ended June 30, 1910, consumed about 35,500 tons of coal. Complainant contended that the Lincoln differential shall be applied on all coal to Fremont from the southern field, and that Fremont should have the same rate as Lincoln and Omaha from the west. HELD, that by reason of competitive and natural ad* vantages, Lincoln and Omaha are en- titled to a reasonable differential against Fremont, but that there is no justification for variations in the Fremont differential on different coals, when a uniform dif- ferential on all coal applies to Lincoln; and that the present differentials are un- reasonable and unduly prejudicial to Fre- mont in so far as they are more than 10c per net ton in excess of the rates to Lin- coln from the. southern field. FURTHER HELD, that the rates from the western field to Fremont, which make the Fre- mont rate 35c over Omaha and Lincoln, cannot be justified and should be reduced so as not to exceed the rates to Lincoln by more than 10c per net ton. Repara- tion denied. Fremont Commercial Club V. C. B. & Q. R. R. Co., 21 I. C C. 74. (d) The joint rail and ocean rates prior to Dec. 27, 1909, on rice from Orange, Beaumont an*d Houston, Tex., to the North Atlantic seaboard were attacked. Rice from the localities where complain- ants are located is taken by rail to Gal- veston and thence by water to the point of consumption. The New York rate was considered as the vital one. The rates from Houston to New York have been 28c L. C. L., 23c C. L., and from Beaumont and Orange 41c L. C. L., and 30c C. L. Houston is 53 miles from Galveston, Beaumont 76 miles and Orange 97 miles. On Feb. 7, 1911, the rates C. L. were changed, making them from Houston 23c, and from Beaumont and Orange 28c. From' Dec. 27, 1909, to the last change in 1911 several changes took place in the tariff, the principal one of which created a discrimination of 4c in favor of Beau- mont against Orange. It seemed the rates from the east were the same from Beau- mont as from Orange and both the local rates to Galveston and the rail and ocean rates from North Atlantic ports to Gal- veston have generally been the same. On account of the fact that these towns draw their rice from the same territory the freight rate is of great importance. Upon the present adjustment of rates the rice miller at Houston can and does go almost to the doors of Beaumont in the purchase of rough rice. Under the 23c rate from Houston the rail carrier receives as its division 4.6c or 1.73c per ton mile, and under the 26c rate from Beaumont the rail line receives 8.7c or 2.29c per ton mile. Of the proposed 28c 212 DIFFERENTIALS, §5 (e)— (g) rate the rail division would be 9.3c or 2.44c per ton mile. HELD, that the rates from Orange and Beaumont via Galveston to North Atlantic ports should be iden- tical both on carloads and less than car loads. That on account of certain com- petitive conditions existing at Houston it should attain a slight advantage over Beaumont and Orange, but that the dif- ference ought not to exceed 3c. There is no good reason why rates from Hous- ton to markets of consumption should be BO adjusted as to prevent the milling of rice at Beaumont when the distance over which the transportation is conducted and the cost of the transportation itself is in favor of Beaumont. The tendency of such a rate adjustment is to artificially increase the advantages of larger com- munities at the expense of smaller towns, thus concentrating instead of diffusing business operations, and therefore the rates on rice and rice products from Orange and Beaumont via Galveston by rail and ocean to I^orth Atlantic ports, C. L., should not exceed the correspond- ing rates from Houston by more than 3c per 100 lbs., and the difference on traffic, L. C. L., ought not to exceed 10c. In Re Transportation of Rice and Rice Prod- ucts, 21 L C. C. 124. (e) The Lexington division of the C. & O. R. R. extends from the main line at Ashland, Ky., to Lexington, Ky. Morehead, Farmer and Salt Lick are stations on this division, located, re- spectively, 57, 62 and 71 miles from Ashland. The Big Sandy Division of the C. & O. R. R. extends from Ashland south to Elkhorn City, and Meek is a station upon that division, 60 miles from Ashland. Up to Oct. 1, 1909, the rate from these points had been based upon the rate from Ashland, on the Lexington division, 5c per 100 lbs. above that rate, and on the Big Sandy divi- sion 6c above it. Complainants shipped lumber from these points to various places in Central Freight Association territory and other parts of the U. S., their shipments moving through Ash- land. In the spring and summer of 1909 a large lumber mill was con- structed at Meek by a competitor, and on Oct. 1, 1909, the rate from Meek was reduced to 3c per 100 lbs. over the Ashland rate. After objections by com- plainant, the principal defendant re- duced its rates by applying a 3c arbi- trary above Ashland at Morehead, a 4c arbitrary at Farmer and Salt Lick, and 5c for the balance of the Lexington ton division. Upon the Big Sandy divi- sion the 3c arbitrary applied to and including Meek, while beyond there was a gradual advance corresponding roughly with the rates established upon the Lexington division. These rates took effect April 10, 1911, and com- plainants prayed reparation with respect to all shipments from Morehead, Farmer and Salt Lick subsequent to Oct. 1, 1909, when the reduced rate became effective at Meek. They did not attack the rates established in 1910. The lower rate from Meek seemed to have been established pursuant to some un- derstanding between complainant's com- petitor and the C. & O. R. R. HELD, the action of the defendant in having readjusted its rates so as to make the arbitrary the same in case of More- head and Meek is a practical admis- sion upon its part that this relation is a fair one. If the defendant had not voluntarily established the relation in rates which is now in effect the Com- mission must, upon a consideration of this complaint, have done so. Repara- tion awarded. Clearfield Lumber Co. v. C. & O. Ry. Co., 21 1. C. C. 211. (f) Where rates from various fields in a coal belt are so correlated that to change one may disturb the entire ad- justment, the Commission cannot under- take to pass upon the reasonableness of one of the rates involved without considering its relation to the rates from the other coal fields. Victor Mfg. Co. V. S. Ry. Co., 21 L C. C. 222, 226. (g) Complainant is an association of coal operators in what is known as the Birmingham district, Ala. They ship to coal markets located in Georgia, South Carolina and Florida. Mines in the Coal Creek district, Tenn., whose cost of pro- duction is 5 cents a ton greater, ship to these markets, taking differentials vary- ing from 15c to 70c per ton over the Ala- bama mines. Complainant sought to have these differentials increased, alleging that the present adjustment discrimi- nates against it in favor of Coal Creek, and that it is losing a vast volume of business. Complainant admitted that the 70c differential was more than was neces- sary to enable it successfully to compete in that territory with the Coal Creek mines. It also admitted that the adjust- ment obtaining under the 45c differential was reasonable, and the complaint was DIFFERENTIALS, §5 (h)— (J) 21S therefore narrowed to an attack upon the adjustment existing in the 15c and 25c differential zones. In other proceedings it had been shown that the mines in Vir- ginia competed strongly in South Caro- lina and Georgia, and had virtually taken the former market from Tennessee, while to Atlanta and other Georgia points they shipped two tons of coal to every ton shipped by Tennessee, although to Atlanta the differential against them is 35c, as compared with Coal Creek, and 50c as compared with Birmingham. On the whole record, it did not appear that the Alabama oper- ators have suffered any damage on ac- count of the present differential ad- justment. They admitted that they can practically monopolize the market in the 70c and 45c differential territories, but to those points their shipments have decreased in about the same propor- tion a-s their shipments to points in Georgia in the 15c and 25c zones. De- spite the alleged loss of Georgia terri- tory, the entire output of the Alabama mines is finding a ready market, one company stating that its supply had been sold, and it was now purchasing coal with which to fill its contract. * The concentrated movement of coal into Georgia from not only Birmingham and Coal Creek, but also from the mines in Tennessee, on the C. N. O. & T. P., N. C. & St. L. and Tenn. Central railroads, results in intense competition and the diminution of profits in min- ing. In this situation it was apparent that other markets may be consider- ably more desirable to Birmingham, and that Georgia markets are sought only when other channels are ob- structed. HELD, under all the circum- stances, the differential adjustment com- plained of is not shown to be unrea- sonable or unjustly discriminatory. Complaint dismissed. Alabama Coal Operators' Ass'n v. S. Ry. Co., 21 I. C. C. 230, 235, 236. (h) Lumbermen of one territory asked for differential rates over those of an- other, on the ground that their lumber was inferior to that produced by their competitors; that the standing timber was smaller, more knotty and required greater care and cost to mill and mar- ket than that of their competitors, and that their finished product being 93 per cent common lumber, they were unable for said reasons to meet com- petition. HELD, while these economic considerations might justify the car- riers in granting to complainants lower rates than to their competitors, they did not afford sufficient ground for compelling the carriers so to do. Pot- latch Lumber Co. v. N. P. Ry. Co., 14 I. C. C. 41, 46; rehearing denied, 16 I. C. C. 465, 468. (i) The quality of small vein coal from the George's Creek, Md., the Pennsylvania and the West Virginia coal fields was substantially of the same quality. The rate on coal from these fields over defendants' lines to tidewater points was the same, but when coal was carried by water bevond those points it was found necessary to shrink the rate in order to meet the water-borne coal carried by roads from other districts. In such case there was a differential against the George's Creek coal of 10c a ton to competitive points inside the Chesapeake and Dela- ware Capes, as compared with the rates from the Pennsylvania and West Vir- ginia fields, and a differential of 15c a ton when destined to points outside of the Capes. When rates were estab- lished, some years back, the George's Creek district was producing only big vein coal, and this coal found no diffi- culty in taking a higher rate. The big vein coal being exhausted, and it becoming necessary to mine at George's Creek small vein coal, it was found impossible to ship the small vein coal at the aforesaid differential. HELD, the rates on water-borne coal from George's Creek should be so readjusted as to enable the small vein coal to move on a parity with the coals from the Pennsylvania and West Virginia districts. George's Creek Basin Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 127, 131. (j) The rate on coal, in carloads, from mines on the Clinch Valley divi- sion of the N. & W. Ry. was $1.60 per ton to eastern markets, and from the Pocahontas and Tug River fields, on the Pocahontas division of the line, $1.50. Complainant operators at Upper Clinch Valley attacked the rates as unduly discriminatory in favor of mines in the Pocahontas and Tug River fields. These two divisions of defendant joined at Graham, W. Va.. the Clinch Valley branch extending from Graham in a southwesterly direction and the Poca- hontas branch in a northwesterly direc- tion from Graham. From Graham to 214 DIFFERENTIALS, §6 (a)— (c) the most westerly point of the Poca- hontas group was 54 miles; from these points to Williamson, the most westerly point in the next group, the Thacker district, was 48 miles. The Thacker group took a rate of $1.60. On the Clinch Valley division the distance from Graham to Norton, the most west- erly point in the Clinch Valley group, was 100 miles. In the Upper Clinch Valley, the more easterly field, the nearest mine was 35 miles west of Graham and the farthest was Raven, 43 miles from Graham. Complainant contended that the 8-mile field in the Upper Clinch Valley group should be separated from the most westerly, or Lower Clinch Valley, group and should take the same rate, $1.50, as the Poca- hontas group, since in the distance of 100 miles from Graham, on the Poca- hontas line, the defendant divided the territory into two fields, making a rate of 10c less to the nearer, or Poca- hontas, groups than to the farther, or Thacker, group. The difference in qual- ity in the coal mined in the Upper and the Lower Clinch Valley was about the same as the difference between that mined in the Pocahontas and the Thacker groups. Allowing a proper credit to the Clinch Valley division and its earnings in the way of originat- ing traffic, it appeared that the cost of operation was not substantially greater on said line than on the Poca- hontas division. The Commission re- jected defendant's contention that coal, being a special commodity of large tonnage, should bear the alleged in- creased cost of operation on the Clinch Valley line, on the ground that such a principle was not applied in making rates on the Pocahontas division. From 1894 to 1897 the charge from both competing fields in question on said divisions was the same. Later the defendant Norfolk & Western Ry. pur- chased the stock of the corporation owning the coal fields in the Poca- hontas field and put into effect the rates attacked, for the apparent pur- pose of favoring the Pocahontas over the Clinch Valley group. HELD, the Clinch Valley group should be divided into two groups in a manner similar to the division into groups of the ter- ritory on the Pocahontas division, the first group to extend from Graham to a point 17 miles west of Raven, and to take a $1.50 rate, and the second to extend from that point to Norton and take a $1.60 rate. Reparation denied. Raven Red Ash Coal Co. v. N. & W. Ry. Co., 13 I. C. C. 230, 231, 237. §6. To Equalize Consuming Points. See Blanket Rates, §8 (c) ; Branch Lines, §1 (k); Equalization of Rates, §3. (a) Prior to 1903 defendants' cotton- seed rates from various points in Mis- souri, Arkansas and Louisiana gave Memphis a differential over East St. Louis of about 5c per 100 lbs. Subse- quently the rates to East St. Louis were reduced lower than those to Memphis. Other lines maintain a substantial dif- ferential in favor of Memphis as against St. Louis. On other commodities hauled by defendants Memphis is given a differ- ential. Defendants contended the haul to Memphis was a two-line haul, whereas it has a one-line movement into East St. Louis. HELD, the rates to East St. Louis were discriminatory as against Mem- phis. Rates to Memphis found unreason- able and reasonable rates prescribed for the future. Memphis Freight Bureau v. St. L. S. W. R. R. Co., 20 I. C. C. 33. (b^ The tariffs in effect prior to April 1, and those of April 1, 1910, named the same rates on vegetables from branch line points as from Charlestown to Buf- falo and Pittsburgh, but the subsequent tariffs named through rates from the branch line points higher than the rates from Charlestown. Rates from branch line points to the Ohio River are higher than rates from Charlestown to the Ohio River, but the same relative differences have not been observed in the construc- tion of the through rates to Buffalo and to Pittsburgh. HELD, in considera- tion of the extra service performed and the additional expense incident to traffic from branch lines the Commission does not here regard it as improper to charge reasonably more from such points than from main line points. It sees no reason, however, for any higher differentials on shipments to puffalo and Pittsburgh than on like shipments to Baltimore. League of Commission Merchants v. A. C. L. R. R. Co., 20 I. C. C. 132, 134. (c) On cottonseed hulls from Fayette- ville, N. C, to Cartersville, Ga., shipped Jan. 18, 1908, complainant was charged the sixth class rate of $7.60 per ton. A combination of rates of $3.30 per ton based on Atlanta was in effect. Defend- ants admitted reparation should be DIFFERENTIALS, §6 (d)— (f) 215 awarded on that basis. After shipments moved, a blanket rate of $2.50 was estab- lished over other lines than those of de- fendants from Fayetteville and North Carolina territory to Atlanta, Cartersville and other Georgia points, which remained in effect until October, 1909, and which took a longer route than the shipment in question. For many years the rates on cottonseed hulls from North Carolina points had been grouped, the charge be- ing $2.50 to Atlanta. Defendants con- tended this rate was low and was put into effect to induce traffic. In 1909 the Atlanta rate was made $3 and the Car- tersville $3.40. The $3.40 rate to Carters- ville produced a higher rate per ton mile ■return for the longer haul to Cartersville than to Atlanta. Complainant contended that the $2.50 rate in effect over other lines was reasonable. HELD, that a rate of $3.20 should be established, making the differential of 20c to Cartersville over the Atlanta rate in line with the differential formerly applicable, but that complainant failed to show $2.50 to be a reasonable rate, since lower rates via another route are not necessarily reasonable rates via the route taken by shipments in a partic- ular case. Reparation awarded on the basis of $3.20. Southern Cotton Oil Co. V. A. C. L. R. R. Co., 18 I. C. C. 275 276. (d) Astoria, Ore., with 15,000 popula- tion, is located near the mouth of the Columbia River, about 10 miles from the ocean, and is about 100 miles west of Portland, which also lies on the same river. On commodities generally shipped from points lying east of a line drawn from Winnipeg to Denver, Astoria was granted the same rates as applied to Portland, Seattle and Tacoma. On wheat from Washington, Oregon and Idaho, As- toria was charged a local rate of 10c per 100 lbs. from Portland to Astoria in addi- tion to the rate from the wheat fields to Portland. Astoria was reached from Portland by the Astoria & Columbia River Railroad, which was controlled by defend- ants, N. P. and Gt. Nor. railroads. Com- plainant farmers and grain dealers at Astoria attacked the rates on wheat from such fields to Astoria as unreasonable per se and as compared with the rates to Portland, claiming that they should be the same as to Portland. No railroad reached Astoria except the A. & C. R. R., and no grain could reach that point all- rail, except by passing through Portland. Portland was built up by the defendants as an important grain exporting port be- fore any railroad reached Astoria. Facili- ties such as tracks, warehouses and wharves which existed at Portland were not available at Astoria, and if the de- fendants were to arrange to haul large quantities of export grain to Astoria it would be necessary to construct such facilities for handling it. The grain rates to Portland, Seattle and Tacoma from the points in question were the same on account of competition between those cities. The city of Portland had spent great sums of money in improving the conditions of navigation between Portland and Astoria. The rates on grain to Bellingham, Wash., were only 2^^c higher than to Seattle, Tacoma and Port- land. The local rate of 10c per 100 lbs. from Portland to Astoria yielded 2c per ton mile. HELD, defendants were under no obligation to establish at Astoria the same facilities for handling grain as they had established at Portland, Seattle and Tacoma and were not obliged, therefore, to give to Astoria as a port the same rates on grain from the points in question as they gave to these other cities; but the local rate of 10c from Portland to Astoria was unreasonable and should be so re- duced as to make the rates from the grain fields in question to Astoria not to exceed the rates to Portland by more than 4i^c. Farmers' Co-operative & Edu- cational Union v. G. N. Ry. Co., 17 I. C. C. 406, 410-412. (e) Following Toledo Produce Ex- change V. L. S. & M. S. Ry. Co., 5 I. C. C. 166, 3 I. C. C. 830, the arbitrary rate of 2c on grain and grain products which is added to the New York rate in deter- mining the New England rate is sus- tained. Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 L C. C. 31, 33. (f) Minneapolis and Buffalo are strongly competitive points in the milling of spring wheat, the products from which are destined to points east of Buffalo. The rates on flour from Buffalo to Phila- delphia and Baltimore were i/^c lower than to New York; from Minneapolis to Philadelphia and Baltimore they were 2c and 3o lower than to New York. The milling business was conducted on a profit of some 3c per barrel. The advan- tage in rates from Minneapolis was 4c a barrel to Philadelphia and 6c a barrel to Baltimore. This advantage was pro- hibitive against complainant at Buffalo in selling flour to those cities. These dif- ferentials had, however, been long in ef- 216 DIFFERENTIALS, §6 (g)— §7 (aa) feet, and the milling business had grown up under them. Defendant, Penn. R. R., had lower rates from Minneapolis and Baltimore, but these were compelled by competition of other carriers, although the shipments might have passed through Buffalo. HELD, these differentials were not unjustly discriminatory against Buf- falo. Washburn-Crosby Co. v. P. R. R. Co., 13 L C. C. 40, 42. (g) Upon a petition for rehearing, the former order lowering the rates on grain and its products between St. Louis and Little Rock is altered so as to make the differential between Kansas City and St. Louis into said' territory Ic less than the former order contemplated, namely, so as to establish proportional rates, 12c on coarse grains and their products and 14c on wheat and its products, this change being made with due precaution against a possible cut in ratri by the K. C. S. Ry. to Texarkana, Ark., and correspond- ing points, which would result in a wide- spread reduction of grain rates into the South and the Southwest. The Traffic Bureau of St. Louis v. M. P. Ry. Co., 13 I. C. C. 105, 108. (h) The diiferential bases from Chi- cago, Indianapolis and Cincinnati were the same to pomts in Louisiana along the T. & P. Ry. and the L. R. & N. Co. from Shreveport to Alexandria, thence east to the Mississippi River and south as far as Cheneyville, and along the K. C. S. Ry. from Shreveport to Lake Charles, and the L. & A. Ry. running north and south and crossing the V. S. & P. R. R. To other points located in the same part of Louisi- ana, but not along said lines, and also to points on the T. & P. Ry. and S. P. R. R. to the south and east of the territory above described, lower differentials ap- plied from Cincinnati than from Indian- apolis. To the latter points the dis- tances are much less from Indianapolis than from Chicago and Cincinnati. To ter- ritory lying on three sides of this Louisi- ana territory taking lower differentials from Cincinnati than from Indianapolis and to many interior points in Louisiana, the same rates applied from Indianapolis and Cincinnati. Basic rates for the en- tire territory embraced in Texas, Okla- homa, Arkansas and Louisiana were made primarily from St. Louis to Texas com- mon points. The Chicago rates were then made fixed differentials over the rates from St. Louis, and these differ- entials applied generally from the Chicago-Cincinnati-Indianapolis territory. The lower rates from Cincinnati to the interior Louisiana points in question could not be ascribed to Mississippi River water competition, since for many years the same rates were voluntarily applied from Indianapolis and Cincinnati to Memphis, Vicksburg, Natchez, Baton Rouge and New Orleans, located directly on the Mississippi. HELD, the rates from Indianapolis to the points in Louisiana in question should not exceed those in effect from Cincinnati. Indian- apolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 254, 274-275. §7. To Equalize Producing Points. See Advanced Rates, §13 (m). §17 (e), §18 (1), (c); Blanket Rates. §6 (b), §8 (d); Eaualization of Rates. §3; Through Routes and Joint Rates, §11 (2), (j). (a) The advanced differential of 5c over Galveston on through rail and water rates on rice and rice products from Hous- ton, Tex., to New York, Boston, Balti- more, Philadelphia and Providence, via Galveston, is not discriminatory when compared with corresponding rates from New Orleans, Galveston or other Texas points, or as compared with correspond- ing rates on other commodities from Houston, the Commission finding that this differential is a low rate made in an effort to comply with an order of the Commission, and with the bona fide pur- pose of correcting a dis3rimination in the manner best calculated to put the rates from all Texas milling cities in fair rela- tion to each other. Chamber of Com- merce of Houston, Tex., v. G. H. & S. A. Ry. Co., 23 L C. C. 214. (aa) Complainant attacked the rate of 88c per net ton on bituminous coal in carloads from the Pittsburgh, Pa., district to Ashtabula Harbor, Ohio, for trans- shipment by vessel on the Great Lakes to points beyond. The coal moving over the New York Central lines from the Pittsburgh district to Ashtabula was car- ried in solid trains averaging 65 cars each of 42 to 44 tons per car. That moving via the Pennsylvania lines moved in trainloads of 40 cars, averaging from 40 to 44 tons each. The weighted aver- age distance from Pittsburgh district to Ashtabula is 148 miles. From 1901 to 1911 the rate was increased from 73c to 88c. From 1887 to 1900 the rate fluc- tuated from 70c to $1. Defendant car- rier in transporting the coal in question received the benefit of using the empty cars engaged in hauling iron ore from DIFFERENTIALS, §7 (b)— (c) 217 ake points east, thereby removing the sxpense of any back haul of empty cars. Complainants contended that the rates ittacked were unjust as compared with hose from the West Virginia coal fields, rhe distance from the Pittsburgh district md from West Virginia districts of Po- ahontas, Kanawa and Fairmont to Ash- abula were 160, 434, 400 and 248 miles, espectively, yielding ton-mile revenues of 1.5, 2.6, 2.4 aand 3.9 mills, respectively, n fixing the rates from these competing Qining districts defendants had practi- ally disregarded distance as well as the act that the rail competition from the Pittsburgh district to Lake Erie was much ;reater than that from any of the West Virginia fields. For ten years prior to larch 1, 1912, the differentials between hese competing fields were unchanged, ,nd under this relation of rates the coal onnage from the West Virginia mines to he lake ports increased some 885 per ent, while that from the Pittsburgh dis- rict increased only 277 per cent. The ost of mining coal in the Pittsburgh dis- rict was more than in the competing Vest Virginia districts, being from 80c o $1 per ton in the former and from Oc to 60c in the latter. Defendants did lot equalize this advantage in rates in ts charges on coal shipped to the At- antic seaboard for transshipment, but on uch coal accorded an average in rates the West Virginia mines. The rate f 88c complained of afforded a ton- Qile revenue of 5.94 mills under the weighted average distance of 148 miles, ,nd approximately 5.87 mills, straight verage mile. The larger and more pros- lerous carriers engaged in transporting he coal under the rates in question were ;ranted dividends between the years 1907 ,nd 1911 ranging from 6 per cent to 18 ler cent. The operating expenses of trans- lorting Pittsburgh coal to Ashtabula was irobably less than one-half of the rate f 88c. The evidence indicated that the ate complained of was raised, step by tep, not to bring it up to a level which he carriers might have regarded and [efended as reasonable, but in order to et certain competing coal fields into he trade. HELD, that the rate com- plained of was unreasonable and unjust ,nd should not exceed 78c. Boileau v. '. & L. E. R. R. Co., 22 I. C. C. 640. (b) Complainant attacked the carload ate of 26^c on lumber and forest prod- icts, from Arkansas, Louisiana, Missis- ;ippi and Texas to Omaha and South Omaha, Neb., and Council Bluffs, la. Prior to Dec. 15, 1899, the rate to Omaha was 22c. It was then advanced to, and remained at, 23c until June 1, 1908. when, pursuant to the decision in Lincoln Com- mercial Club V. C. R. I. & P. Ry. Co., 13 I. C. C. 319, holding that the rate to Lincoln, Neb., should not exceed that to Omaha, defendants advanced the OmaLa rate from 23c to 25c, and the Lincoln ra'e from 24c to 25c. On Aug. 25, 1908, pur- suant to the decision in Greater Des Moines Committee v. C. G. W. Ry. Co., 14 I. C. C. 294, holding that the rate to Des Moines should not exceed the rate to Omaha, defendants again advanced the rates to Omaha and Lincoln to the 26 %c rate complained of and reduced the rate to Des Moines from 27*^0 to 26^0. In order to hold up through rates resulting from this advance, de- fendants had to increase the local fac- tors in the St. Louis combination, so that the combination would be as high as the through rate. The rate at- tacked applied from all points in the territory, some 450 by 600 miles in extent. By reducing the same to 25c, the per ton mile, based on an average distance, would be only slightly affected. HELD, the rate attacked should be re- duced to 25c; the Des Moines rate should not exceed the Omaha rate, and the relation established by the Com- mission in the cases mentioned should not be disturbed. Defendants were obvi- ously satisfied with the 23c rate to Omaha and Lincoln, and only raised these rates in order to escape reducing the rates to Des Moines and Lincoln. Commercial Club of Omaha v. Ander- son & Saline River Ry. Co., 18 I. C. C. 532, 536, 537. (c) Complainant attacked the rela- tive rates from the Coal Creek field, Tennessee, against the Apalachia field, Virginia, via Morristown to Carolina ter- ritory. The distance from the Apa- lachia field to Morristown is 171 miles, from the Coal Creek field 78 miles. In Black Mountain Coal & Land Co. v. Southern Ry. Co., 15 I. C. C. R. 286, the Commission established the differ- ential to this territory in favor of Coal Creek field of 25c per ton. Since that decision certain transportation charges have occurred which materially modified the situation. One of the carriers from Apalachia has constructed a cut-off which shortens the haul to Morristown 60 miles and avoids some of the sever- 218 DIFFERENTIALS, §7 (d)— (e) est grades and curves, so that Apalachia is only now 33 miles further from Carolina territory than Coal Creek. A competing carrier has been constructed from the Dante field, which is adjacent to the Apalachia field, which, with its connections into Carolina territory, make a haul from Dante less than from Coal Creek. The coal in the Dante region is, if anything, somewhat superior to that of the Apalachia field, which is of about the same quality as that in Coal Creek. The competing carrier, the Carolina, Clinchfield & Ohio R. R., was extremely modern in con- struction and of a most substantial character. Complainants showed that the sales in the Carolina territory have largely diminished, and asked for an Increase in the differential through Mor- ristown. HELD, that it is evident the Apalachia must have the same rate Into Carolina territory as the Dante field, although that territory is not to be occupied by. the latter field on account of the changes in transportation condi- tions. The Commission cannot, by rea- son of distance or cost of service, in- crease the differential which was estab- lished in the Black Mountain case, and therefore the prayer in that respect for an increase must be denied. Andy's Ridge Coal Co. v. S. Ry. Co., 18 I. C. C. 405. (d) Complainant coal operators at- tacked the relative rates on coal from Coal Creek field, Tennessee, as com- pared with the Apalachia field, Vir- ginia, to Georgia and Florida territory, via Knoxville. The present distance from the Apalachia field is 213 miles; on a proposed cut-off in operation this will be reduced to 155 miles. The rate is $1.40. The distance from Coal Creek to Atlanta, a typical point, is 259 miles, with a rate of $1.35; from the Apa- lachia, 378 miles, the rate is $1.60, or a differential of 25c. A competing car- rier maintains from the Dante field, a competing coal field adjacent to the Apalachia field, a rate of $1.60, distance being 461 miles. HELD, the present differential between Coal Creek and the Apalachia is somewhat too small; and that the difference between the rate from the Apalachia field and the Coal Creek field ought not to be less than 35c, but it cannot be assumed that the carrier serving the Dante field will reduce its rate of $1.60 to defeat the Commission's order; that the advent of this carrier, which has been recently built, changes the distance from some points in Georgia and Florida, and may require a regrouping of that territory. The order, therefore, will be confined to Atlanta, relying upon the defendants to make such adjustments, if any are required, in the Georgia and Florida territory. Andy's Ridge Coal Co. v. S. Ry. Co., 18 I. C. C. 405, 411. (e) Complainant coal miners in the Walsenburg district in southern Colorado, located on the line of the Colorado & Southern, asked for the establishment of through routes and joint rates via the Fort Worth & Denver City Railway to points in the Panhandle of Texas and eastern New Mexico, along the lines of the Southern Kansas Railway of Texas, Pecos & Northern Texas Railway, East- ern Railway Company of New Mexico and the Pecos River R. R., these lines being known as the Pecos Lines and owned by the Santa Fe. Dealers located on the Pecos Lines in Texas could only get Wal- senburg coal by maintaining an agent at Amarillo, Tex., to receive the coal and rebill same to Texas points. Dealers on the Pecos Lines in New Mexico were entirely cut off from Walsenburg coal on account of the prohibitive interstate dis- tance tariffs purposely put into effect by the Santa Fe to prevent such movements. Complainants also sought through routes and joint rates via Pueblo to points on the Santa Fe in Kansas, and via Trinidad to points on the line of the Santa Fe and on the Eastern Railway of New Mexico, in New Mexico and Texas. The only way traffic could move was by billing locally to Trinidad and rebilling at the local rate from Trinidad to point of destination. Through routes and joint rates were for- merly in effect from the Walsenburg dis- tricts to such Texas and New Mexico points, but were withdrawn by the Santa Fe to enable that line to supply this ter- ritory with coal from Trinidad and Canon City, Colo., and Gallup, New Mexico, from which points the Santa Fe was able to se- cure a longer haul and thereby enhance its revenues. Traffic from the Walsen- burg mines actually moved into the Texas territory via Amarillo, from which point it took the low Texas commission rates, and the total charge by this arrangement to any point on the lines in Texas was ex- actly the same as that from Canon City, plus the rebilling charge at Amarillo to shipper's agent. This movement was not DIFFERENTIALS, %1 (f) 219 possible to points in New Mexico, because the Texas commission rates did not ap- ply, and the rates which did apply were prohibitive. Complainants asked for rates to points on the Pecos Lines, south of Amarillo, equal to the rates in effect to those points from the Gallup mines; and for rates to points on the Southern Kansas Railway, north of Amarillo, equal to the rates in effect from the southern Kansas mines to such points, on the ground that the Walsenburg mines being nearer than the other districts, the rate re- quested would be reasonable. The rates asked for were lower than those from the Canon City district and were de- manded on the ground that the traffic from Canon City moved by way of Hutch- inson, Kan., over a route twice as long as the haul from the Walsenburg district via Amarillo. Walsenburg and Canon City coals were about on a par in quality and for competitive reasons it was nec- essary that they take the same rates. The long haul from Canon City via Hutch inson was voluntarily established by the carrier in order to enable it to participate in the traffic. The initial carriers in the Walsenburg district encountered great difficulties in handling the traffic from the mines in said district. The lower rate on coal from Gallup to the points in question was influenced by the movement of empty cars eastward from California and by the fact that a down-grade existed from Gallup. HELD, joint through routes should be established from the Walsen- burg district to the points as requested; that joint rates should be accorded on coal from the Walsenburg district to points on the Santa Fe lines in Kansas; and those points in Texas, east of but not including Joel, which should not ex- ceed the rates in effect between Canon City, Colo., and those points; that to points in Texas and New Mexico, north of and including Joel, Tex., but not in- cluding points in New Mexico on the line running north of Belen, the rates should not exceed the rates in effect from Trini- dad, plus a differential of 30c per ton; and that to points north of Belen the •rates should not exceed the rates in effect to such points from Trinidad, plus a dif- ferential of 25c per ton. Request for a differential on slack from the Walsenburg mines refused for lack of sufficient data in the record. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 17 I. C. C. 479, 481, 485. (f) Complainant lumber miller in the Missoula District, Mont., attacked the rates on lumber to North Dakota and Missouri River territory. Up to Oct. 15, 1908, the Missoula District, being located in the Montana-Oregon group territory, had always been granted a differential rate on lumber under both Spokane and coast groups to points in North Dakota and the Missouri River territory. These differentials were voluntarily established by the carriers and ranged in amounts from 3c to 9c under the Spokane rates in the North Dakota territory and from 5c to 10c in the Missouri River territory. To points in North Dakota, however, timber- producing sections east of the city of Spokane to the end of the timber belt did not take the same rate but there existed a graded differential increasing in amount eastwardly. In compliance with the order of the commission in Pot- latch Lumber Co. v. N. P. Ry. Co., 14 I. C. C. 41, consolidating the Spokane and the Montana-Oregon groups, the rates complained of were established, resulting in the destruction of the differential there- tofore in effect in favor of the Montana- Oregon group. The lumber-producing sections involved in the Kalispell Case, 16 I. C. C. 164, located on the Great Northern Ry., and the Missoula District, located on the N. P. Ry., are both east of the city of Spokane, the latter district lying directly south of the former. HELD, that from lumber-producing points on the N. P. Ry. between Evaro and Huson on the west, and Garrison on the east, including those points and also in- cluding points on branch lines intersect- ing the main line at points intermediate Huson to Garrison, there should be dif- ferential rates on lumber and other forest products to points on the Pembina-Port Arthur line as defined in the Potlatch case and points west thereof to and in- cluding Medora, N. D., on the N. P. Ry., and Edgemont, S. D., on the C. B. & Q. R. R., at least 2c per 100 lbs. under Spokane group rates, as defined in the Potlatch case, to points on said Pembina- Port Arthur line, and graded up west- wardly to at least 4c per 100 lbs. under Spokane group rates at Medora, N. D., on the N. P. Ry., and at Edgemont, S. D., on the C. B. & Q. R. R.; that from points on the N. P. in Montana east of Garrison, including branch lines, the differentials should be 3c per 100 lbs. under Spokane group rates to points on said Pembina- Port Arthur line, and graded up west- 220 DIFFERENTIALS, §7 (ff) wardly to 5c per 100 lbs., under Spokane group rates at Medora, N. D., on the N. P. Ry., and at Edgemont, S. D., on the C. B. & Q. R. R., and that from points on the C. M. & P. S. Ry. in the Missoula District like differentials of not less than 2c and 3c respectively, under Spokane rate groups, should be established to points on said Pembina-Port Arthur line and be graded up westwardly to not less than 4c and 5c, respectively, under Spokane group rates at Marmarth, N. D. Big Blackfoot Milling Co. v. N. P. Ry. Co., 16 I. C. C. 173, 175. (ff) Complainant coal miners in the Black Mountain district, in Southwestern Virginia, attacked the rates on coal to Carolina territory, by which the rate from Black Mountain was 10c higher than that from the adjoining Appalachia districts, and also attacked the adjustment of rates from the Jellico and Coal Creek districts in Tennessee to Carolina territory as un- justly discriminatory in favor of these Tennessee fields. The Appalachia and Black Mountain districts are situated near the Virginia-Kentucky line and are about 20 and 17 miles in extent, respect- ively. The Black Mountain district ad- joins the Appalachia district on the west. Coal from the Black Mountain district was carried over the Black Mountain, the Va. & S. W., the L. & N. R. Rs. and the S. Ry. through Interment, a point lying near the south end of the Appalachia district, via Morristown, Tenn., to the Carolina territory in ques- tion. These railroads were controlled by defendant S. Ry. Co. From Intermont defendant S. Ry. carried coal produced in the Appalachia fields over the same route to the Carolina territory. Over its lines north from Knoxville, Tenn., the S. Ry. reached the Jellico and Coal Creek districts and carried coal from these fields to the Carolina points in question via Morristown. The rates to Morris- town were, from Jellico, 90c; Coal Creek, 90c; Black Mountain, $1.30; Appalachia, $1.20 per ton; and the per ton mile rev- enue 8, 12, 7.6 and 7.5 mills respectively. The rates from Black Mountoin and Coal Creek to a typical Carolina point were $2.15 and $1.85, respectively, yielding 6.39 and 8 mills, respectively. To one group of Carolina points the rates were from the Coal Creek district, $2.35 to $2.50; from the Appalachia district, $2.65; from the Black Mountain district, $2.75. To another group the rates from Coal Creek were some 35c per ton lower than from Appalachia and Black Mountain. To a third group of Carolina points, the Ap- palachia rate was some 25c over the Coal Creek rate. When the differential of 10c from Black Mountain above the rate from Appalachia was instituted the Black Mountain district was reached by different independent carriers, which afterwards were merged in the system of defendant S. Ry. The Black Moun- tain R. R., leading from the Black Moun- tain district to Intermont, was only about 25 miles long. When these railroads were separate and independent, the differential of 10c against Black Mountain applied to the haul of only 170 miles to Morristown, whereas after the acquisition of these roads by the S. Ry. the 10c differential was being exacted on a haul of from 250 to 500 miles, made entirely over the sys- tem of the S. Ry. The Black Mountain and Appalachia coal was of practically the same character and must find a sale at the same points at about the same rates. The coal from the mines of the Appalachia district was delivered at Intermont by the Interstate R. R., a sep- arate corporation, for which service 10c per ton was paid by the S. Rys., and the Appalachia operator paid the Intermont rate for all shipments to the destina- tions in question. With respect to the relative rates from Black Mountain and the Appalachia, on the one hand, and the Jellico and Coal reek fields on the other, it appeared that after the coal from either of the groups in question reached Morristown, the transportation conditions from that point to destination were exactly similar. The coal from these competing Virginia and Tennessee fields was of the same general character, of practically the same value, used for the same purpose and sold at the same mar- kets. The average distance from Appa- lachia and Black Mountain to Morristown was 164 miles, which was about 90 miles greater than from Coal Creek. Under the adjustment attacked, the rate from Appalachia to INIorristown was 30c per ton more than from Coal Creek. The distance from Intermont to Bristol, Tenn., on the line to Morristown, is about 70 miles. An engine had to make about 10 miles to cover the distance, three trips being necessary to take the train over Walker Mountain. The maximum grade was 170 feet to the mile, with numerous sharp and reverse curves. The maximum grade from Coal Creek to Mor- ristown was 114 feet to the mile. The expense of assembling coal at Intermont DIFFERENTIALS. §7 (g)— DISCRIMINATION 221 was very great, and similar expense was not shown to exist at Coal Creek. HELD, that in view of the fact that the same carrier served both the Black Mountain and Appalachia districts, which, by their location, the character of their output and the distance from markets, were in sub- stantially similar circumstances and con- ditions, the differential of 10c in favor of Appalachia was unjustly discrimi- natory against Black Mountain; and that taking into account the greater average distance from the Appalachia and Black Mountain mines to Morristown, as com- pared with the distance from Coal Creek to the same point, and the higher oper- ating expenses in originating the traffic than those involved in the haul from Intermont to Morristown, together with the relation that the Appalachia and Black Mountain districts bore to Coal Creek and other districts competing in the same consuming markets, the rate from Appalachia and Black Mountain to the destination ppints in question might be materially higher than from Coal Creek, but that the differential should be reduced 5c, so that the rate at Appalachia and Black Mountain should not exceed by more than 25c the rate from Coal Creek. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286. (g) Bunker Hill and Martinsburg, W. Va., were rivals in the production of furnace limestone. On shipments to points in Pennsylvania and Ohio, de- fendants charged much higher rates from Bunker Hill than from Martinsburg, and the rate to Canton, for example, from Martinsburg, a distance of 375 miles, was 80c a ton more than from Bunker Hill, a distance of 385 miles. It appeared that one concern controlled substantially all the crude limestone in this territory, with the exception of the quarries at Bunker Hill. HELD, the rates charged from Bunker Hill were excessive and should be reduced so as not to exceed by five cents per ton the rates from Mar- tinsburg. Baker v. Cumberland Valley R. R. Co., 14 I. C. C. 568, 569, 570. (h) Complainant, manufacturers and shippers of lumber and forest products in Washington, Oregon and Idaho east of the Cascade Mountains, attacked the gen- eral increase in lumber rates put into effect Nov. 1, 1907, demanded that the former rates be restored and that they be given a differential of at least 10c over the former rates, as against ship- ments from coast group points. Spokane was distant from the Pacific Coast some 400 miles. The haul from the coast in most instances necessitated the crossing of the Cascade range. For some 200 miles east of the Cascades, the country was a treeless farming region until the immediate vicinity of Spokane was reached. Defendants, prior to the filing of the complaint, had established differ- entials in favor of points in the territory occupied by complainants to various destinations eastward against the rates from coast points to these destinations, and had thereby admitted that complain- ants were entitled to lower rates than the shippers from coast points. HELD, in connection with the decisions in Ore. and Wash. L. M. A. v. N. P. R. R. Co., and P. C. L. M. A. v. N. P. Ry. Co., 14 I. C. C. 1 and 23, rates from the terri- tory occupied by complainants should be lower than the newly prescribed rates in these opinions applying from coast group points; that the differential should be as per schedule specified in the opinion from points in the territory extending from the summit of the Cascade Moun- tains eastward to a designated boundary marking off said territory from the Spo- kane-Sand Point district; and that the Spokane-Sand Point district should enjoy a greater differential over the rates from coast group points than the above-men- tioned Cascade groups, the new rate to be to various destinations as prescribed in the opinion. (Knapp and Harlan, Comm'rs, dissenting.) Potlatch Lumber Co. v. N. P. Ry. Co., 14 L C. C. 41, 48; rehearing denied, 16 I. C. C. 465, 468. DISCRIMINATION. I. CONTROL AND REGULATION. §1. Construction of the Act. §2. Jurisdiction of Commission. IL DETERMINATION OF DISCRIMI- NATION. §3. In general. §4. Similar conditions. §5. Test of discrimination. III. JUSTIFICATION. §6. Carrier as shipper or con- signee. §7. Carrier not serving preju diced point. §8. Competition. (1) In general. (2) Artificial competition. (3) Railroads in general. (4) Short-line carriers. (5) Water carriers. §9. Disadvantage of location. 222 DISCRIMINATION, §1 (a)— (ff) §10. Encouragement of own terri- tory. §11. Low state rate. IV. REMOVAL OF DISCRIMINATION. §12. Reduction of rates. §13. Disturbance of settled ad- justment. V. PROCEDURE AND EVIDENCE. §14. Burden of proof. §15. Showing of damage. §16. Actions in state courts. §17. Reparation. CROSS-REFERENCES. See Absorption of Charges, 11; Ad- vanced Rates, V; Allowances, III, §7, §8 (1) (d), §8 (3) (a), (aa); §8 (4) (a), (b), §8 (a) (a); Blanket Rates, V; Cars and Car Supply, III §12 (c), (d), (e). (f). (h), §13 (a), (c). (h), §17 (a), (b), §21 (a), §26 (a), §28 (a); Classification, §3 (a), §7 (d), §14 (c) ; Commutation Fares, (a); Credit Account, §1 (c), (d), §2; Crimes, II; Demurrage, §3, §15 (g), (j); Differentials, §5 (c), (g), §6 (f), §7 (a); Equalization of Rates, §3 (nn); Export Rates and Facilities, III; Express Com- panies, III; Facilities and Privi- leges, §4 (a), §10 (b), §19 (]). §20 (h), IV; Import Traffic, II; Lighter- age, §3; Passenger Fares and Fa- cilities, II, §6 (a), (g), §10; Pre- cooling, II (h); Proportional Rates, II; Reconsignment, II, §6 (d) ; Re- stricted Rates, I (d), (j), (n). Special Contracts, §2 (h), (m), §5 (Switch Tracks and Switch- ing, III; Tap Lines, §7; Tele- phone Companies, I; Terminal Facilities, §7 (c) ; Through Routes and Joint Rates, §4 (b), §12 (a), §19 (f); Track Storage, II (k) ; Wa- ter Carriers, II; Weights and Weighing, III. I. CONTROL AND REGULATION. §1. Construction of the Act. See Act to Regulate Commerce, II, (j). (cc), (II); Compress Comoanies and Charges, §1 (b), (c), (d) ; In- terstate Commerce Commission, §14 (j); Passenger Fares and Facil- ities, §6 (L); Tariffs, §3 (cc), §4 (b), §5 (a), §14 (d); Through Routes and Joint Rates, §1 (q). (a) The Act was intended to be an ef- fective means for redressing wrongs re- sulting from unjust discrimination and un- due preference, and this must be so, whether persons or places suffer. I. C. C. V. C. R. 1. & P. Ry.. 218 U. S. 88 110, 80 Sup. Ct. 651, 54 L. ed. 946. (b) Under section 2 of the Act provid- ing for the recovery of damages by a shipper against whom a carrier has dis- criminated in rates for shipments made during a "contemporaneous service," the word "contemporaneous" means "at the same time with the offending rates," and as long as these rates remain in force the services rendered to a complaining and to a favored shipper are "contempo- raneous" within the meaning of the stat- ute. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed. 403, 411. (c) LTnder section 2 of the Act forbid- ding carriers to discriminate between shippers in compensation for transporta- tion "under substantially similar circum- stances and conditions," a carrier may not grant to one shipper a lower rate by reason of the fact that he contracted to sell coal, while former and lower rates were in effect, while the complaining shipper in the same district is not so obligated, since the "circumstances and conditions" intended do not include in- dividual elements affecting individual shippers. Penn. R. R. Co. v. International Coal Mining Co., 173 Fed. 1, 4. (d) The use in section 1 of the Elkins Act of the word "discrimination," with the qualifying adjective "unjust," was not intended to broaden the prohibitions of the original Act to Regulate Commerce in that respect. U. S. v. Wells, Fargo Express Co., 161 Fed. 606, 610. (e) The duty of a carrier under the Act to refrain from giving preference or advantages to one shipper over an- other is applicable only where the same or similar conditions are prevalent. U. S. V. O. R. & Nav. Co.. 159 Fed. 975, 978. (ee) Section 3 prohibits undue dis- crimination against interstate traffic in favqr of state traffic; and the carrier is not relieved by the fact that the state rates were established by a state com- mission. R. R. Com. of La. v. St. L. S. W. Ry. Co., 23 L C. C. 31, 41. (f) The fundamental principle of the Act is one of fair play. A railroad may not control the character of the indus- tries along its line by giving preferential rates as between commodities, nor dis- criminate as between one shipper and another, even though by following such procedure it can develop the greatest amount of traffic for itself. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 426. (ff) The proviso in section 1 that the Act shall not apply to commerce wholly within a state, construed, and HELD, that it does not authorize an in- terstate carrier in discriminating between state and interstate commerce. R. R. DISCRIMINATION, §1 (g)— §2 (a) 223 :om. of La. v. St. L. S. W. Ry. Co., 23 . C. C. 31, 42. (g) Competition which compels lower ates to one city than to another city imilarly situated may justify such rate idjustment, but the mere fact of compe- ition, regardless of its character, does lot relieve carriers from the limitations if section 3. Chamber of Commerce of ^^ewport News v. S. Ry. Co., 23 I. C. C. 45, 353. (gg) Natural or acquired advantages re to be considered In determining i^hether a rate adjustment between ocalities is in violation of section 3. 'hamber of Commerce of Newport News . S. Ry. Co., 23 I. C. C. 345, 352. (h) The prohibition of the law is Lgalnst charging differently for a like and ontemporaneous service in the trans- lortation of a like kind of traffic under ubstantially similar circumstances and onditions. In Re Carriers Operating Jetween the Mississippi and Missouri livers, 21 I. C. C. 546, 552. (hh) The prohibition of inequalities mong shippers is, perhaps, more funda- nental and vital than any other feature f the Act. Federal Sugar Refining Co. . B. & O. R. R. Co., 20 I. C. C. 200, 214. (i) The difference in transportation onditions must be substantial in order remove the application of section 2. n Re Restricted Rates, 20 I. C. C. 426, 35. (j) Section 2 of the Act prohibits re- eiving directly or indirectly by any device /^hatsoever a greater or less compensa- ion for transportation for one person' ban for another person for "a like and ontemporaneous service in the trans- ortation of a like kind of traffic under ubstantially similar circumstances and onditions." The courts have repeatedly eld that the words "substantially simi- ir circumstances and conditions" relate olely to questions of transportation or aulage. In Re Restricted Rates, 20 I. !. C. 426, 433. (k) The Act does not prohibit all dis- rimination, but only that which is un- ue. Herbeck-Demer Co. v. B. & O. R. R. )o., 17 I. C. C. 88: Loch Lynn Construc- lon Co. v. B. & O. R. R. Co., 17 I. C. C. 96. (1) One purpose of the Act is to pre- erve competitive conditions between ommon carriers, but it is another pur- pose to prevent undue discrimination. Railroad Commission of Tennessee v. A. A. R. R. Co.. 17 I. C. C. 418, 421. (m) The Act was intended to prohibit undue discrimination against localities as well as persons. Railroad Commissioners of Florida v. S. A. L. Ry., 16 I. C. C. 1, 2. (n) The statute requires carriers to publish their tariffs and to adhere to those tariffs. In no other way could dis- criminations which have existed be pre- vented. In enforcement of that statute the Commission has no discretion. Ames Brooks Co. v. Rutland R. R. Co., 16 I. C. C. 479, 481. (o) The fundamental principle of the Act is like treatment to all alike under the circumstances. Cambria Steel Co. v. B. & O. R. R. Co., 15 I. C. C. 484, 486. (p) Equal treatment is nowhere more clearly intended by the Act than in sec- tions 2 and 3. Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 86, 88. (q) Where a carrier represents that it is collecting of all shippers switching charges on interstate shipments levied by a connecting carrier, and is, in fact, absorbing such charges for favored ship- pers, a state court has jurisdiction in an action for damages for discrimination, since, under sections 9 and 22 of the Act, the state courts are not deprived of jur- isdiction over actions for breaches of duty by the carriers which would give rise to causes of action at common law or under a state statute. Lilly Co. v. Northern Pac. Ry. (Wash., 1911), 117 P. 401, 402. §2. Jurisdiction of Commission. See Act to Regulate Commerce, II (c); Advanced Rates, §1 (2) (a); Claims, §3 (b), §4 (c); Commerce Court, §3 (a); Courts, §9 (d); Dif- ferentials, §1 (f); Divisions, §1 (b); Facilities and Privileges, §1 (e), (f), (h), (o), §19 (b); Interstate Commerce Commission. §9 (j); Rea- sonableness of Rates, §28 (r). (a) The primary jurisdiction over un- just discrimination by carriers is with the Commission, the power of the courts being that of review, and is confined in that review to questions of constitutional power, and all pertinent questions as to whether the action of the Commission is within the scope of the delegated authority under which it purports to have been made. I. C. C. v. C. R. I. & P. Ry., 218 U. S. 88, 110, 30 Sup. Ct. 651, 54 L. ed. 946. 224 DISCRIMINATION, §2 (b)— (i) (b) Defendant railroad secretly and in violation of its published rate to New York and Nev^ England points made certain allowances to plaintiffs' competi- tor in the shipment of coal. In shipments to New York harbor, one favored shipper was selected, and a pier built for it 20 miles nearer t'^e market, to which point it was permitted to ship its coal, and at the same time it received an allowance of from 7c to 15c for an alleged service of unloading coal, whereas plaintiffs were compelled to go to South Amboy, 20 miles further south. Defendant also made se- cret allowances to certain competing shippers on short lateral roads, HELD, notwithstanding the powers conferred on the Commission by section 15 of the Act, as amended June 26, 190G, the federal courts had jurisdiction und^r section 9 over the subject matter in a suit for damages for unjust discrimination, and it was not necessary first to resort to the Interstate Commerce Commission. Lang- don v. Penn. R. R. Co., 194 Fed. 486, 491. * (bb) On cattle from Texas points, Fort Worth, Tex., paid Texas state commission rates, while Oklahoma City paid higher interstate mileage rates. The state rates were not made with the intent to discriminate in favor of Texas industry, but were part of a general rate schedule. Oklahoma City, however, suf- fered a disadvantage. HELD, that the discrimination is not undue and that the Commission cannot deal with the situ- ation. In Re Advances on Meats and Packing-house Products, 23 I. C. C. 656, 664. (c) If rates complained of are shown by the record to be unreasonable or dis- criminatory, it is the duty of Comm's- sion to so find, even though such finding may not give relief to the full extent de- sired by complainants. Chatlanooga Feed Co. V. A. G. S. R. R. Co., 22 1. C. C. 480, 485. (d) Wherever a like kind ff traffic i& transported from two difeerent points by different railroads and the commodity may be delivered without the interven- tion of the other road, the Commission is powerless to declare an unequal rate discriminatory, and fix the reasonable charge. Ashland Fire Brick Co. v. S. Ry. Co., 22 I. C. C. 115, 120. (e) A carrier may doubtless wrong- fully give a great shipper substantial ad- vantage by buying or renting his ware- house adjoining his factory and making it a public receiving station, and possi- bly, under the present Act, the Commis- sion would be powerless to redress the wrong, if the public made actual use of the station, unless the price paid or the rent reserved was excessive and the transaction was therefore intended as an unlawful rebate. Federal Sugar Refining Co. V. B. & O. R. R. Co., 20 I. C. C. 200, 208. (f) The courts look upon the Commis- sion as qualified by experience and from the nature of its duties to speak as ex- perts with respect to the rates and prac- tices of carriers and ascribe to its find- ings the weight and conclusiveness that are ordinarily attached to expert opinion. Shippers may resort to the Commission for the redress of injuries arising out of the exaction by carriers of unlawful rates, for the correction of unlawful and discriminatory regulations and practices affecting rates. But the Commission was not created for the purpose of taking the place of the courts in the disposition of the vast number of litigated cases in which shippers demand of carriers dam- ages of a general nature arising from unlawful practices. Joynes v. Penn. R. R. Co., 17 1. C. C. 361, 364, 365. (g) The Commission cannot indulge n speculation as to the motives which ctuated carriers in fixing an adjustment of freight rates as between various points if origin, but can only determine upon :he facts and conditions wh'^ther or not the rates in question are unreasonable or unjustly discriminatory. Grand Junc- tion Mining & Fuel Co. v. C. M. Ry. Co., 16 L C. C. 452, 456. (h) Any regulation or practice that withdraws from a shipper the equal op- portunity of using and taking advantage of the rates offered by a carrier to the public is clearly a regulation or practice affecting rates in the sense in which that phrase is used in the amended Act of Tune 29, 1906, section 15. Rail and River Coal Co. v. B. & O. R. II. Co., 14 I. C. C. 86, 89. (i) In any case where the published rate is unjustly discriminatory, the Com- mission has jurisdiction to order repara- tion to shippers injured thereby. Minne- apolis Threshing Machine Co. v. C. R. I- & P. Ry. Co., 13 I. C. C. 128, 130. DISCRIMINATION, §3 (a)— (dd) 225 II. DETERMINATION OF DISCRIMI- NATION. §3. In General. See Evidence, §53 (a); Reasonable- ness of Rates, §2 (kkk); Through Routes and Joint Rates, §17 (b) ; Transportation, §12 (b). (a) Manufacturers of sash, doors and blinds in Southeastern and Mississippi Valley Freight Association territories at- tacked the reasonableness of the rate charged them on window glass in car- loads shipped from Pittsburgh, and sought to have applied thereon the rate appli- cable on glazed sash from Chicago to the same destinations, Atlanta and Chicago were taken as representative southeast- ern and western points, respectively; both obtain their glass from Pittsburgh, Chi- cago paying 18c for a haul of 4C8 miles and Atlanta TGc for 783 miles. Glazed sash takes a rate of 38c from Chicago to Atlanta. The southern manufacturer uses yellow pine in the manufacture of sash, doors and blinds, and the western manufacturer uses white pine, neither wood having any trade suf^eriority over the other. WlJle the western manu- facturer formerly used to dominate the southern markets, for the past ten years his sales have not increased, while the southern manufacturer's have grown enormously. The western manufacturer in Chicago has to buy his lumber on the Pacific coast, and this constitutes 40 per cent of the weight of the sash. The south- ern manufacturer gets yellow pine at the door of the factory at a negligible ex- pense, and this lumber constitutes 55 per cent of his sash. Taking into con- sideration the cost of the raw material, the southern manufacturer has an ad- vantage of not less than 41c iu the cost of his glazed sash on the Atlanta mar- ket. So far as the rate on glass per se is concerned, it is lower than many articles taking the fifth-class rate — iron and steel, marble and granite, paint, steam radiators, asbestos, stoves and ranges, glass battery jars, etc. The 18c rate on glass from Pittsburgh to Chicago Is the fifth-class rate between those points. HELD, in determining whether or not one section has an advantage over another in marketing its products in a common territory, if more than the transportation cost of the finished article be considered, the assembling cost of only one of the raw materials cannot be taken and that of another equally as im- portant be ignored, that so far as the aggregate relative transportation costs are concerned, the southern manufac- turer is at . no disadvantage compared with his western competitor and no dis- crimination can be found to result from the present rate adjustment; neither can it be said that the rate on window glass from Pittsburg is unreasonable. Com- print d-smissed. Massee & Felton Lum- ber Co. V. S. Ry. Co., 23 L C. C. 110. (aa) A railroad stands like every other shipper, and it is unlawful to ap- ply one rule when a shipment is for a carrier and a different rule when for a private individual. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 23 I. C. C. 81, 83. (b) Denying at Sioux City a back- haul privilege permitted at Omaha does not subject Sioux City to undue preju- dice, transportation conditions not being similar. Sioux City Terminal Elevator Co. V. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 109. (bb) Only a difference in transporta- tion conditions can justify granting one locality an advantage over another. R. R. Com. of La. v. St. L. S. W. Ry. Co., 23 L C. C. 31, 41. (c) Because a given town can do a comparatively small amount of business is no justification for excluding it from the opportunity to get what it can. Chamber of Commerce of Ashburn v. G. S. & F. Ry. Co., 23 I. C. C. 140, 147. (cc) All rules, regulations and charges affecting the ultimate cost of transportation must be made with reason- able regard for the nature of the com- modity transported and without undue discrimination as between localities or shippers, though it has been held that the minimum cannot be fixed with re- gard to the needs and desires of pur- chasers of products. Sunderland Bros. Co. V. St. L. & S. F. R. R. Co., 23 I. C. C. 259, 262. (d) Cases of alleged undue prefer- ence or prejudice must be adjudged upon their respective merits, and seldom, if ever, may such cases be controlled by results of other controversies supposed to be of like nature. Chamber of Com- merce of Newport News v. S. Ry. Co., 23 L C. C. 345, 356. (dd) The Commission has no power to compel an advance in rates in order to remove discrimination. In Re Ad- 226 DISCRIMINATION, §3 (e)_(il) vances on Fresh Meats and Packing- house Products, 23 I. C. C. 652, 655. (e) Under specific rates in force, grain from some quarters pays a less charge than it should, while grain from other quarters pays more than it should. On the whole, no material hardship re- sults, and in view of the greater general good, these incidental discriminations are not undue. Southern Illinois Millers' Ass'n V. L. & N. R. R. Co., 23 I. C. C. 672, 676. (ee) The fact that defendant operates a circuitous route is no defense to a charge of undue prejudice against mills on its line, when defendant is party to through transportation from another point where a milling-in-transit privilege is" accorded free of charge. Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 678. (f) Carriers may not select certain points of production on their lines and give to them the benef/. of rates that permit meeting competition of producers located upon other lines, and deny similar treatment to other producing points upon their lines that are similarly situated and as to which the same and long-estab- lished general basis of rates applies. Mil- burn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (ff) To hold that a carrier may not withdraw a rate found by the Commis- sion in another case to be unreasonably low, merely because that rate was volun- tarily established in the first place, would amount to requiring unjust preference, and to setting aside the fundamental principle that rates must be uniform un- der similar conditions. Fairmont Cream- ery Co. V. C. B. &"Q. R. R. Co., 22 I. C. C. 252, 254. (g) It is unjust discrimination to base a rate upon the use to which the com- modity transported is to be devoted. Vir- ginia-Carolina Chemical Co. v. A. C. L. R. R. Co., 22 I. C. C. 394, 397. (gg) A rate cannot be confined in its terms or application to an individual or a class, Virginia-Carolina Chemical Co. V. A. C. L. R. R. Co., 22 I. C. C. 394, 397. (h) A preference or advantage which Is bestowed upon a city by the mere policy of the carrier and not by reason of actual difference in condition is undue. In Re Application of S. P. Co., 22 I. C. C. 366, 376. (hh) A railroad is justified, under the law, in discriminating in favor of one city as against another, if they are so differently circumstanced that at one point transportation forces are brought into play which are not or cannot be ex- ercised at another point; but a carrier is not justified in deliberately adopting a policy of preference toward one city as against another. Only the preference or advantage that is due is justifiable, and that advantage which is bestowed upon a city by the mere policy of the carrier and not by reason of actual differ- ence in conditions is undue. In Re Ap- plication of S. P. Co., 22 I. C. C. 366, 375. (i) Complainant operates white lead factories at Omaha, Neb., and West Pull- man, 111., and alleged unjust discrimination in rates upon coke from the Pocahontas district, W. Va., to Chicago rate points, of $2.35 per ton "when for use in blast furnaces for smelting iron from the ores," and $2.65 per ton when for other uses. No allegation was made that the rate of $2.35 per ton was unreasonable per se, and it was admitted that methods used in manufacturing white lead and in smelting iron from the ores were entirely different, that there was no competition between manufacturers of white lead and manufacturers of pig iron, and that the real complaint was the defendants per- form identically the same transportation service in bringing to Chicago a carload of coke whether it be used in making white lead or in smelting iron ores. HELD, that it is unlawful for defendants to maintain different rates on coke, the application of which depends upon the use to which the coke is put. No show- ing being made that the $2.65 rate is un- reasonable per se, reparation is denied, but the defendants required to desist from maintaining rates on coke based or dependent upon the uses to which the coke is put. Carter White Lead Co. v. N. & W. Ry. Co., 21 L C. C. 41. (ii) The Lehigh Valley R. R. Co. paid to coal operators who had sold their out- put to the Lehigh Valley Coal Co., which it owned, large sums of money on ship- ments which such operators had made between Nov. 1, 1900, and Aug. 1, 1901, on account of a readjustment of freight rates pending during that period and finally consummated at the end of that year. Such refunds were not made to complainants who were shippers of coal from the same district. HEnLt as Omaha. HELD, the rates should be the same to the two points. (6) Glass. Glass orig- inally came from the east, taking a rate 3c higher to Lincoln than to Omaha. At present its source was in the Gas Belt of Kansas. HELD, the rates to Lincoln and Omaha should be the same. (7) Salt. Salt originally came from Michigan. At present it came from Hutchinson and other Kansas points, the 240 DISCRIMINATION, §4 (s)_§5 (d) element of distance being in favor of Lincoln. HELD, the rates should be the same. (8) Egg-case Fillers. Egg-case fillers shipped into Omaha and Lincoln for concentration were then shipped out in various directions, the fillers being ob- tained in the Gas Belt of Kansas. The rate to Lincoln was 3c higher than to Omaha and on shipments of eggs east Omaha obtained a rate 3c less than Lin- coln. HELD, the rates on fillers should be the same to the two points. (9) Sugar. The rates on sugar from west- ern points were the same to Lincoln and Omaha. Sugar was produced at points in Louisiana west of the Mississippi River. HELD, the rates to Lincoln and Omaha from these points should be the same. Lincoln Commercial Club v. C. R. I. & P. R. R. Co., 13 L C. C. 319, 322-328. (s) Grain originating on the Illinois River was carried via packet lines to Pekin, 111., then forwarded to Indianap- olis, where milled under through rate to the East. One of the packet lines omitted the privilege from the tariff through error, HELD, discrimination, and reparation awarded on shipments moving via such packet line. Evans Milling Co. v. C. C. C. & St. L. Ry. Co., Unrep. Op. 351. §5. Test of Discrimination. See Cars and Car Supply, §14 (a), §15 (a), §27 (a). (a) When one shipping center through an adjustment of rates is placed at a disadvantage to another the question to be determined is whether such dis- advantage is the result of unjust dis- crimination or undue or unreasonable prejudice, due to the rate adjustment. Chamber of Commerce of Newport News V. S. Ry. Co., 23 L C. C. 345, 351. (b) When general rate adjustments in and between large territories, which contemplate substantial justice between all shippers generally, result in individ- ual instances of disproportionate in- equality, they fail in their purpose to that extent, and their strict observance in such cases upon no other ground than the arbitrary theory of their existence should yield to the extent necessary to prevent gross injustice, just as many other general rules are necessarily sub- ject to exceptions. Alpha Portland Ce- ment Co. V. B. & O. R. R. Co., 22 I. C. 0. 446, 449. (c) Mills of complainants are situ- ated at an average distance of 150 miles from Detroit. Complainants alleged that freight rates on carload shipments of cement from manufacturing points lo- cated in the Lehigh Valley district are so low when compared with rates from the plants of the complainants to con- suming points in Central Freight Asso- ciation territory as to constitute undue preference. Complainants cannot ship to most points of Central Freight Asso- ciation territory, nor to the east for any great distance, without meeting compe- tition from Lehigh Valley shippers. HELD, that merely because a greater distance point has lower rate per ton mile than a shorter distance point, dis- crimination does not necessarily result. But rates must not only be reasonable in and of themselves, but also relatively reasonable. The rates complained of are on a lower basis than those from Detroit and vicinity to competitive points, dis- tance considered. The fact that the ag- gregate charges from the Lehigh Valley district are higher in every instance is immaterial. Elk Cement and Lime Co. V. B. & O. R. R. Co., 22 I. C. C. 84, 88. (d) Complainant attacked the ex-lake rate on grain from Buffalo to Boston of 13.3c per 100 lbs., as compared with the all-rail rate from Chicago to Boston of 18c per 100 lbs. The ton mile revenue was from 5 mills to 6^^ mills. Complainant contended that the ex-lake rate from Buf- falo was part of a through transportation from Chicago, and that the line east from Buffalo had no right to impose upon the through traffic which came by water a higher rate than was imposed upon similar traffic which came to Buffalo by rail; and that the ex-lake rate, Buffalo to Boston, ought not to exceed the pro- portional rate of 7.9c on the Chicago to Boston haul. HELD, that the all-rail rate from Chicago east competes with the lake-and-rail rate, and that the di- vision of the line east of Buffalo cannot be made the standard by which to fix a reasonable rate from Buffalo; that the division of a through rate was not a mat- ter of concern to the public, and that while it might be looked to for certain purposes it should not ordinarily be made the standard of reasonableness or the measure of discrimination; that the ex- lake rate from Buffalo east was reason- able of itself. Complaint dismissed. Board of Trade of Chicago v. A. C. R. R. Co., 20 I. C. C. 504. DISCRIMINATION, §5 (e)— §6 (b) 241 (e) Complainant, merchants and man- ufacturers of Des Moines, attacked rates generally from Des Moines to the west- ern portion of Minnesota and the states of North and South Dakota and the ter- ritory west thereof as unduly discrim- inatory, compared with rates from Chi- cago, 111., St. Louis, Mo., and Dubuque, Davenport, Clinton, Muscatine and Bur- lington, la. The complaint attacked the whole rate structure and demanded that the rates from Des Moines should bear the same relation to distances in- volved as those from Chicago. Under the rate structure attacked the rates from Chicago and St. Louis were rela- tively lower than those from Des Moines on account of the competition of the car- riers serving the points of destination in question through the gateways of Duluth, Chicago and St. Louis. The rates from Chicago to these points were generally the same as those from St. Paul and Minneapolis. The low rate from St. Louis to St. Paul influenced th« rates from all points on the Mississippi River as far north as Dubuque, la. HELD, that while distance was a factor in the determination of rates, the Commission was not justified in adopting it as the sole basis, in ignoring the difference in circumstances and conditions between Des Moines and the other points of origin in question, and in destroying the present rate adjustment. Complaint dismissed. (Lane, Comm'r, dissenting.) Greater Des Moines Committee v. C. M. & St. P. Ry. Co., 18 L C. C. 73, 79. (f) Any discrimination which exists must not exceed that which is warranted by the differences in circumstances and conditions. Sondheimer Co. v. I. C. R. R. Co., 17 I. C. C. 60, 64. (g) Whether or not a discrimination shall be removed is not measured by its amount, whether large or small, but by a determination of whether or not it is undue. Fort Dodge Commercial Club v. I. C. R. R. Co., 16 I. C. C. 572, 581. (h) The freight is so small an item In the cost to the retail dealer or the consumer of both woolen and cotton gar- ments that this does not seem to pro- duce any practicable effect. While in fact the discrimination exists, it is not sufficient to become obvious. Associa- tion of Union-Made Garment Manufac- turers V. C. & N. W. Ry. Co., 16 I. C. C. 405, 408. (i) Lower proportionals from points served by foreign carriers afford no basis for charge of discrimination against com- plaining point served by other carriers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 L C. C. 56, 66. (J) Not all discriminations are un- lawful, but only such as are undue or unreasonable; if based on reason and good cause, discriminations cannot be condemned as unreasonable. The evi- dence and effectiveness of competition between carriers, whether by rail or water, whether subject to the Act or not, and competitions of markets, or the ab- sence of such competition, are, among other things, pertinent to the question of similarity of circumstances and con- ditions involved in the ultimate ques- tion of fact under sections 3 and 4, and as to whether the discrimination com- plained of is or is not undue or unreason- able. Discriminations in sections 3 and 4 of the Act, in so far as they result from the bona fide action of a carrier in meeting circumstances and conditions not of its own creation, and which are reasonably necessary, do not of neces- sity fall under the condemnation of the law. Pittsburgh Plate Glass Co. v. P. C. C. & St. L. Ry. Co., 13 L C. C. 87, 99. III. JUSTIFICATION. See Advanced Rates, §5 (2) (g), (h). §6. Carrier as Shipper or Consignee. See Evidence, §46; Forwarders, II; Reasonableness of Rates, §23; Re- stricted Rates. (a) The fact that a railroad in fuel coal does not come into competition with commercial coal and is in competition with coals coming upon the line of the consuming railroad, at other points, does not constitute such a difference in cir- cumstances as to warrant the carriers under sections 2 and 3 of the Act in ac- cording a different rate to fuel coal than to commercial coal, and the practice of extending such a difference in -rates amounts to unjust discrimination under said sections of the Act. I. C. C. v. B. & O. R. R. Co., 225 U. S. 326, 32 Sup Ct. 742, 747; 56 L. ed. 1107. (b) A carrier as a shipper over the lines of another carrier may not have any preference in the application of transportation rates and charges. Con- versely, it may have the same privileges under the tariffs as any other shipper. In Re Transportation of Company Ma- terial, 22 L C. C. 439. 440. 242 DISCRIMINATION, §6 (c)— (h) (c) Carriers buying what will ulti- mately become company material con- tract with shippers located off their lines, and agree that if the vendor will bill the shipment beyond a designated junc- tion point, at which their own lines and the lines of the initial carriers meet, the purchasing carrier will absorb its own division of the joint through rate and the shipper assume only that portion of the joint through rate which accrues to the initial carriers 'as their division of the rate up to the junction point designated in the billing. HELD, this practice re- sults in the application of a portion of a joint rate from the point of origin to the junction point for the benefit of a par- ticular shipper, which is not published for the public at large nor filed with the Commission under section 6 of the Act. Nor is it material whether the contractor for a carrier, or the purchasing carrier itself, is the consignor. In either case the shipment should be billed and con- tinuously transported from point of ori- gin through the junction point of the purchasing carrier and to the point of final destination on the purchasing car- rier's line. The purchasing carrier is there clearly entitled to its division of the joint» rate and the charge which it must pay on its shipment of material to the junction point is the division of the rate accruing to the initial carrier and connections, if any, up to the junction point in question. If the shipment is billed, or is actually carried, only to the junction point of the purchasing carrier, whether the carrier or its contractor or other private party acts as consignor, the division of a joint rate cannot apply un- less this division has been lawfully pub- lished as applicable to movements to such junction point for shipment beyond. The Act gives no indication that either carriers or contractors who furnish com- pany materials and supplies are to bo preferred over other individuals so far as rates are concerned. The published rate is the only lawful rate and is ap- plicable to all alike without distinction. If one shipper is to have the advantage of such a division of a through rate then all other shippers should have the same advantage, and the only way to secure this advantage to one is to publish it available for all. A carrier acting in the capacity of shipper or consignor stands, upon a footing of absolute equality with every other shipper with respect to the application of published rates to such shipments, except in regard to that part of a joint rate which accrues upon the purchasing carrier's own line. Practice condemned and complaint dismissed. Beekman Lumber Co. v. St. L. & S. P. R. R. Co., 21 L C. C. 270. 272, 273, 275. (d) If a railroad is entitled to a low rate because of its facilities, any ship- per providing like facilities must be awarded the same rate. In Re Restricted Rates, 20 I. C. C. 426, 435. (e) On shipments of coal for railway use from the district near Wheeling, W. Va., defendant carriers extended much lower rates than when the coal was to be used for other purposes. HELD, such prac- tices on the part of the carriers ought to be stopped as resulting in unjust dis- crimination in favor of producers hav- ing contracts for the sale of coal to car- I riers. There is no warrant in the com- 1 mon law or the Act for the theory that a carrier as a shipper over the lines of other carriers may be given a preferred rate. The practice cannot be upheld without removing the very cornerstone of the Act designed to prevent unjust dis- crimination and practices. If carriers in- sist upon making or maintaining such preferential rates they may confidently expect that such voluntary action on their part will be accepted in any fur- ther proceedings in this or any similar cases as evidence of the unreasonable- ness of higher rates which they may un- dertake to enforce against other ship- pers. Hitchman Coal & Coke Co. v. B. & O. R. R. Co., 16 L C. C. 512, 517, 518. (f) A carrier as shipper over lines of another carrier may not lawfully be given any preference in application of tariff rates on interstate shipments. Hitchman Coal & Coke Co. v. B. & O. R. R. Co., 16 L C. C. 512, 517. (g) Character of the consignee or the use made of the coal is not a proper or lawful basis for a difference in rates on coal of the same kind. Board of Mayor and Aldermen v. V. & S. W. Ry. Co., 15 L C. C. 453, 456. (h) So long as there is identity of ownership in the agency of transporta- tion and the thing transported, it is ex- tremely difllcult, if not impossible, to prevent discrimination between shippers. Cedar Hill Coal & Coke Co. v, A. T. & S. F. Ry. Co., 15 I. C. C. 73. 78. DISCRIMINATION, §7 (a)— (d) 243 §7. Carrier Not Serving Prejudiced Point. See Evidence, §23; Facilities and Privileges, §21 (kk) ; Procedure Be- fore Commission, §2 (rr); Through Routes and Joint Rates, §2 (k). (a) The fact that carriers serving a certain milling center but not serving a competitive center establish transit privi- leges at the former and thus compel a carrier serving both milling centers to similarly establish such privilege at the one, but not at the other, where no com- petition between carriers exist, does not in law render the carriers not serving the competitive milling center guilty of subjecting it to undue prejudice or dis- advantage. Blodgett Milling Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 448, 449. (aa) A railroad cannot be said to dis- criminate against a town which it does not reach and in whose carrying trade it does not participate. Blodgett Milling Co. V. C. M. & St. P. Ry. Co., 23 I. C. C. 448, 449; Chamber of Commerce of Ash- burn V. G. S. & F. Ry. Co., 23 I. C. C. 140, 149; Chamber of Commerce of New- port News V. G. S. & F. Ry. Co., 23 I. C. C. 345, 352. (b) Complainant mills rye and buck- wheat into flour at Janesville, Wis., and alleged that defendants' tariffs, which provided that rough grains might be milled or otherwise treated in transit at Minneapolis, St. Paul and Minnesota Transfer, gave undue preference and ad- vantage to those points, and subjected Janesville, Wis., to undue prejudice and disadvantage. Janesville is served by only one of the defendants, the C. M. & St. P. Ry., and the other defendants serve the Twin Cities, but do not reach Janesville. On shipments to the Pacific coast and re- lated points there were privileges accord- ed by all the defendants at the Twin Cities, but which the C. M. & St. P. Ry. had not extended to Janesville. The C. M. & St. P. Ry. was forced to extend this privilege at the Twin Cities because the other defendants who did not serve Janesville had done so. HELD, the roads named as defendants which serve the Twin Cities but do not reach Janesville cannot in law be guilty of subjecting the complainant or the city of Janesville to undue prejudice or disadvantage; that the action of the C. M. & St. P. Ry. was clearly forced upon it by competition be- tween carriers, and the conditions sur- rounding the transportation of grain products from the Twin Cities to Pacific coast points and from Janesville to the same destinations are not so nearly alike as to constrain the Commission to order the C. M. & St. P. Ry. either to cease and desist from acco-rding the present transit privileges at the Twin Cities or to establish similar privileges at Janes- ville. Complaint dismissed. Blodgett Milling Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 448, 449, 453. (c) The fact that the rails of certain carriers do not actually extend to a ship- ping center which is discriminated against cannot relieve such carriers from responsibility for the effect of rates, which create such discrimination, which they control and in which they partici- pate. Chamber of Commerce of New- port News v. S. Ry. Co., 23 I. C. C. 346, 353. (d) Under an arrangement between defendants in force for a number of years prior to July 31, 1899, Newport News and Norfolk, Va., took equal freight rates to and from common points in As- sociated Railways territory and in South- eastern Freight Association territory. Because of a disagreement as to divisions of the joint rates the southern lines with- drew from the arrangement, and since that time Newport News rates to and from such common points have been on a higher basis than Norfolk rates to and from the same points. As compared with Norfolk, Newport News was placed in a position of material disadvantage. As to natural advantages, Newport News and Norfolk are practically on the same footing. The southern lines do not ex- tend to Newport News; but by means of their connection with other defendant lines, they participate in Newpart News traffic to and from the south, maintain through routes for the movement of such traffic, and in effect control the rates ap- plicable thereto. HELD, that the present rate situation is unjustly discriminatory against and unduly prejudicial to New- port News; that the southern carriers cannot escape responsibility for such dis- crimination merely because their rails do not extend to Newport News; that Newport News is entitled to the same rates as Norfolk to and from common points on defendants' lines in the terri- tories referred to, not within 150 miles of Norfolk. Chamber of Commerce of Newport News v. S. Ry. Co., 23 I. C. C. 345. 244 DISCRIMINATION, §7 (e)— (j) (e) In the application of rates on coal from the Walsenburg district in Colorado to numerous points in Nebraska, defend- ants provide a rate of $3.50 per net ton to one group of stations and a rate of $3.75 to a second group. The complain- ant in substance asked that certain points not taking the $3.75 rate be included within the $3.50 rate group and that cer- tain points taking the $3.50 rate be divided into two new groups to which shall apply rates of $3 and $3.25, respec- tively. A point known as Minden on the main line of the Burlington took the $3.50 rate, while a station known as Min- den "K" on a subsidiary line of the Bur- lington system, which also passes through Minden, took the $3.75 rate, al- though it is only a few blocks from Min- den; but there is no physical connection between these two lines. The rates in» volved have been considered in the Cedar Hill Coal Case, 16 I. C. C. 387, the Colo- rado Coal Traffic Ass'n Case, 19 I. C. C. 478, and Nebraska State Comm. Case, 13 I. C. C. 349. HELD, the lack of switch connection between the lines of the Bur- lington system at Minden and Minden "K" should not be allowed to prejudice the latter station, and that Minden "K" should take the same rate as Minden, and under the readjustment required by this finding the r^te to Minden "K" should not be exceeded at the inter- mediate stations of Keene, Wilcox, Ra- gan, Huntley, Alma, Orleans, Carter and Sacramento, Neb. Nebraska State Ry. Commission v. C. B. & Q. R. R. Co., 23 I. C. C. 121. (f) A line not serving a particular point cannot be said to discriminate against such point in any rate adjust- ment where such adjustment is created by circumstances beyond the carrier's control, though it, as a connecting line, may participate in the rates imposed. R. R. Com. of Kans. v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 416. (g) If the same carrier serving both Kansas and Detroit salt fields names a lower rate to St. Louis for substantially the same distance from Detroit than from Kansas, it must be prepared to justify that discrimination, but if carrier A serves St. Louis from the Kansas field, while carrier B serves that market from the Detroit field, then carrier A is not guilty of discrimination because it de- clines to meet the rate established by carrier B. R. R, Commissioners of Kan- sas V. A. T. & S. F. Ry. Co., 22 T. C. C. 407, 413. (h) Carrier cannot be said to dis- criminate against a point served by It because other carriers give lower rates to the same character of traffic from points on their own lines to the common destination. Sunflower Glass Co. v. M. P. Ry. Co., 22 L C C. 391, 392. (i) To find a carrier guilty of dis- crimination as between competing points of origin, it must appear that such car- rier participates at least in each of the movements between the two points of origin and the destination. Maricopa County Commercial Club v. P. & E. R. R. Co., 22 I. C. C. 218, 220. (j) Fire brick manufacturers attacked the rates of 14 1^ to 16c per 100 lbs. .on fire brick from the Ashland-Olive Hill district, Kentucky, and Portsmouth-Oak Hill district, Ohio, to Birmingham, Atlan- ta, and other southern i>oints, as unrea- sonable and discriminatory in favor of St. Louis, Mo. The rate from St. Louis to Birmingham was 14c, 3c of which was absorbed as switching and bridge charges, thus giving a lower ton mile rate to St. Louis. Fire brick is one of the cheapest commodities transported. Shipments are often made in trainloads, and a car of brick is only wo-rth $150. The St. Louis rate was not made by any of the defendant carriers, and they have repeatedly tried to get it raised. The per cent of brick furnished by St. Louis has increased from 1 6-10 per cent to 9V2 per cent of all brick furnished in the past year. Com- plainants were satisfied with the rate when the St. Louis rate was the same, although they first sought to have that rate raised. The object of the St. Louis rate is to foster the industry in St. Louis and benefit the St. Louis carriers. The Cincinnati-Birmingham rate was 12c. Cincinnati is the basing point of the traf- fic. Two-thirds of the brick shipped to Birmingham comes from south of the Ohio river with no bridge charge. Cin- cinnati is 484 miles from Birmingham. Ashland is 523 miles. Three of the largest plants, producing 64 per cent of the brick sent to Birmingham, are on the Chesapeake & Ohio, 75 miles from Lex- ington. Lexington is 84 miles south of Cincinnati, but takes the Cincinnati rate. HELD, the rate cannot be held discriminatory as the same carriers do not serve the complainants and St. DISCRIMINATION, §7 (k)— (n) 246 Louis, nor is the traffic necessarily transported over part of the way by the same carriers. However, dealing with the Ashland rate from the standpoint of the Cincinnati rate on brick as contrast- ed with the rates on other commodities, is a misconception, as the commodity does not originate in Cincinnati, and the greater part does not pass through that point. The rates from the main produc- ing points, 75 miles from Lexington, are unreasonable and should be fixed at Ic less per 100 lbs. The Ashland and Tay- lor rate is also unreasonable to the same extent. Ashland Fire Brick Co. v. So. Ry. Co., 22 L C. C. 115, 121. (k) Where certain carriers from a producing point and serving a consum- ing point are also parties to joint through rates to the consuming locality, but from other producing points, they may be held liable for undue preference, though their lines do not directly reach such other producing points. Elk Cement & Lime Co. v. B. & O. R. R. Co., 22 L C. C. 84, 89. (1) A carrier cannot be charged with giving preference or advantage to a community which it does not serve, nor be charged with subjecting such com- munity to prejudice or disadvantage. Johnson & Co. v. A. T. & S. F. Ry. Co., 21 L C. C. 637, 639; Roberts Cotton Oil Co. V. I. C. R. R. Co., 21 I. C. C. 248, 250. (m) Complainant alleged that de- fendants' rate of 15c per 100 lbs. on cot- tonseed oil, carload, from Cairo to Chi- cago, 111., was discriminatory because of a rate of 8i^c from East St. Louis, 111., to Chicago. It further alleged that de- fendants' rate of 14c from Cairo to Louisville, Ky., and Cincinnati, O., was unreasonable and discriminatory to the extent of 2c per 100 lbs. by reason of a rate of 10c from East St. Louis to the same destinations. The short line dis- tance from Cairo to Chicago is 365 miles via the I. C. R. R. and from East St. Louis to Chicago is 282 miles, and the earnings under the 8^-cent rate amount to 6.03 mills per ton mile as compared with 7.71 mills under the 15-cent rate from Cairo. It appeared that the low rate from East St. Louis to Chicago is made by carriers which do not reach Cairo, and that the circumstances and conditions affecting the transportation from Cairo to Chicago and from East St. Louis to Chicago are substantially dissimilar. Complainants specifically admitted that the 15-cent rate is reasonable and the only question involved was that of dis- crimination against Cairo. From the record it appeared that much the same situation is disclosed with respect to the adjustment of rates from Cairo and East St. Louis to Louisville and Cincinnati. HELD, that if the rates from Cairo were reduced the carriers which reach that point would be required to accept less than a reasonable compensation by reason of conditions for which they are not re- sponsible and which they cannot con- trol; that the lines between St. Louis and Chicago which do not reach Cairo are not bound to consider the interests of that point; that by reason of the dissim- ilarity of circumstances and conditions respecting the transportation of cotton- seed oil from East St. Louis to Chicago and from Cairo to Chicago, and from East St. Louis to Louisville and Cincin- nati, and from Cairo to the same points, the defendants are not guilty of undue prejudice against Cairo within the mean- ing of section 3 of the Act. Complaint dismissed. Roberts Cotton Oil v. L C. R. R. Co., 21 L C. C. 248. (n) Complainant, engaged in the pro- duction of pig iron, has a blast furnace at Carondelet, Mo., and used coke in car- loads from Page, W. Va. Contempo- raneous with the rates which were paid, carriers not parties to the complaint maintained dual rates on coke to various lake ports. These dual rates to Chica- go, for instance, were an open rate of $2.65 per net ton, and a rate of $2.35 per net ton "for use in blast furnaces, for smelting iron from the ores." Only one defendant, the C. & O. R. R., participated in coke traffic to the lake ports and could be held to have the burden of justifying the maintenance of the dual rates at the lake ports concurrently with the main- tenance of the single rates at St. Louis. This carrier has no line north of the Ohio river, and while it did publish the dual rates for the lake ports, and the single rate to St. Louis, it did so only with the concurrence of other lines not parties to the complaint. HELD, had the complainant been located at Chi- cago, or any other lake port where dual rates were maintained it would have been entitled to the lower or furnace rate on coke. This not being the case, complainant could not obtain reparation on the ground of discrimination, but was entitled to reparation to the extent that 246 DISCRIMINATION. §7 (o)— §8 (1) (b) the joint rates exacted exceeded the Bum of the intermediate rates. St. Louis Blast Furnace Co. v. V. Ry. Co., 21 I, C. C. 215. (o) It is no violation of the Act to maintain joint rail-lake-and-rail rates higher than rail-and-lake rates to farther- distance point, where lake boats did not stop at the complaining point. City of Ashland v. N. Y. C. & H. R. R. R. Co., 20 I. C. C. 3. (p) Where carriers granted a transit privilege at Omahaand denied such privi- lege at Detroit, but the carriers that served Omaha were not the same that served Detroit, petition asking establish- ment of privilege at Detroit was dis- missed. Schmidt & Sons v. M. C. R. R. Co., 19 I. C. C. 535, 537. (q) Where two carriers serve same destination from two different points of origin, neither can be held to discrimi- nate against mills at that destination be- cause it sees fit to make or refuse a rate lower than is inherently reasonable. Saginaw & Manistee Lumber Co. v. A. T. & S. F. Ry. Co., 19 I. C. C. 119, 125. (rs) Coffeyville, Kan., is not unjustly discriminated against by rates on petro- leum to Memphis, higher than those from Whiting, Ind., and Illinois points to Memphis, where the carriers serving Coffeyville are not those serving Whit- ing and the Illinois points. National Petroleum Ass'n v. M. P. Ry. Co., 18 I. C C. 593, 594. (t) No discrimination can be found in favor of a point to which commodity involved never moved. Consumers' Ice Co. V. A. T. & S. F. Ry. Co., 18 L C. C 277. (u) A carrier cannot be guilty of dis- crimination against a locality which It does not serve. Utica Traffic Bureau v. N. Y. C. & H. R. R. R. Co., 18 L C. C. 271. 272. (v) A carrier cannot discriminate against a point not located on its own line. Friend Paper Co. v. C. C. C. & St. L. Ry. Co., 18 I. C. C. 178. (w) A carrier serving one point may be guilty of discrimination against another point not on its own line, where the separate carriers unite in joint through rates with common connecting lines to destination. Indiana-Steel & Wire Case, 16 L C. C 155, followed. Railroad Commission of Tennessee v. A. A. R. R. Co., 17 I. C. C. 418, 421. (xy) A carrier cannot discriminate within the meaning of the statute except as between those whom it serves or whom it may lawfully be required to serve. It is not guilty of discrimination merely be- cause it does not afford as favorable rates as others served in different ter- ritory, though the products carried by each are brought to the same market. The law does not deal in these matters with all carriers collectively as a single unit or system, but its commands are directed to each with respect to the ser- vice which it is required to perform. Chicago Lumber & Coal Co. v. T. S. Ry. Co., 16 L C. C. 323, 332. (z) If a particular line alone delivers at a point, participating in through routes and joint rates thereto from two points of production not directly served by its own lines, it may not be a party to a preferential joint or proportional rate from either point of production. The test of the discrimination is the ability of one of the carriers participat- ing in the two through routes from the two points of origin to the same point of destination to put an end to the dis- crimination by its own act. Ashland Fire Brick Co. v. S. Ry. Co., 22 I. C. C. 115, 120. §8. Competition. §8. (1) In General. See Competition; Concentrating Rates and Privileges, (a), (aa), (b); Evidence, §13 (1) (h), §14 (1) (a), (b), (c), (d), (g), (m), (n); Long and Short Haul, §7 (h), §9 (h). (a) Competition of controlling force cannot be ignored by the Commission in determining whether an advantage in rate at the competitive point is undue, or is one not chargeable to the carriers defendant because involuntarily made. Sioux City Terminal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 107. (aa) Competition which compels lower rates to one city than to another city similarly situated may justify such rate adjustment, but the mere fact of competition, regardless of its character, does not relieve carriers from the limita- tions of section 3. Chamber of Commerce of Newport News v. S. Ry. Co., 23 I. C C. 345. 353. (b) The public interest may demand that a carrier shall not avail itself of DISCRIMINATION, §8 (1) (bb)— §8 (2) (b) 247 competitive conditions to produce dis- crimination. Chamber of Commerce, Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140, 150. (bb) The fact that a carrier may voluntarily accept lower rates than it can be required to accept, and that whether or not a carrier will meet com- petitive conditions at a particular point rests primarily with the carrier, does not relieve the carrier by meeting competitive conditions at one point and refusing to meet them at a neighboring point. Chamber of Commerce of Newport News V. G. S. & F. Ry. Co., 23 I. C. C. 140, 149. (c) It is well settled that distance is always a factor to be taken into con- sideration in determining either the rea-^ sonableness of a rate by itself or In con- sidering its relation to rates to other points, but it is equally well settled that distance alone Is not controlling. Com- petition is an important element and there are various other considerations, all of which must be taken into account In determining the fact whether a par- ticular rate or a system is entitled as a matter of law to rates that are reason- able and that do not operate to unduly discriminate against them. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 309. (d) The suggestion that actual com- petition is necessary in order to produce undue discrimination in rates overlooks the requirements of section 1 that all rates shall be reasonable. Penn Tobacco Co. V. Old Dominion S. S. Co., 18 I. C. C 197, 200. (e) A charge of undue discrimination may not be predicated on lower rates on different commodities which are not com- petitive. Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 36. (f) If a particular point Is discrimi- nated against the fact that the removal of discrimination would disturb rates at other points is of little weight; but when a change would be followed by changes at competitive points which would restore the same relationship, and exist- ing rates are not shown excessive, a jus- tification for a change is not found. Montgomery Freight Bureau v. L. & N. R. R. Co., 17 I. C. C. 521, 529. (g) While competition at a given point may render the circumstances sub- stantially dissimilar, and justify a dis- crimination against points where such competition is not controlling, such dis- similarity of circumstances does not re- lieve the carrier altogether from the re- straint of section 3 of the Act, and the amount of discrimination must not be greater than the dissimilarity of circum- stances demands. Planters' Gin & Com- press Co. V. Y. & M. V. R. R. Co., 16 I. C. C. 131, 133. (h) The carrier cannot be permitted to compete at one point and decline to compete at another, where all conditions are the same. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 87. (i) The fact that there is competition between communities for the purchase of a commodity does not justify the car- rier transporting .the same to levy an un- reasonable rate on one community. Nebraska State Railway Commission v. U. P. R. R. Co., 13 I. C. C. 349, 355. §8. (2) Artificial Competition. (a) Where carriers through discrim- inatory rates produce competitive con- ditions at one point they cannot set up such conditions as a reason for maintain- ing discriminatory rates at a neighboring point. Chamber of Commerce, Ashburn, Ga., V. G. S. & F. Ry. Co., 23 I. C. C. 140, 150. (b) Complainant alleged that the rates to and from eastern cities, Ohio and Mississippi river crossings, and the west, on both classes and commodities, were unreasonable and unjustly discrim- inatory against Ashburn, Ga., In favor of Cordele, TIfton, Fitzgerald, Albany and other south Georgia points. Ash- burn is located about the center of an Irregular square, the corners of which are occupied by Cordele, Albany, TIfton and Fitzgerald. Ashburn is twenty miles north of TIfton, thirty-six miles west of Fitzgerald, twenty miles south of Cor- dele and thirty-seven miles east of Al- bany by rail. It is but six miles more distant from Savannah than is Cordele or TIfton and not more than twenty miles farther than those cities from such Im- portant points and gateways as Atlanta, Birmingham, Montgomery, Savannah, Brunswick and Jacksonville (from the latter It Is 177 miles northwest). The class rates from New York to Cordele, Albany, Fitzgerald and TIfton range from $1.17 first class to 88c for class F, while the rates to Ashburn range from $1.42 to 74c. The class rates from the DISCRIMINATION, §8 (3) (a)— (c) Ohio river crossings to Cordele and Al- bany range from $1.23 first class to 58c class F; to Fitzgerald and Tifton, from $1.43 to 62c, but to Ashburn from $1.48 to 72c. From the Mississippi river cross- ing, St. Louis, the class rates to Cordele and Albany range from $1.46 for first class to 72c class F; to Fitzgerald and Tifton, from $1.66 to 76c, and to Ashburn from $1.71 to 86c. From the eastern cities the ratps to Cordele and Tifton are the same and are lower than to Ashburn, as a result of which traffic moves through Tifton and Ashburn to Cordele, or through Cordele and Ashburn to Tifton at lower rates than apply at Ashburn. In the application of rates from the Ohio and Mississippi river crossings the so- called basing points in southern Georgia are divided into two groups. Cordele, Albany, Americus and Dawson are in- cluded in group A and take the same rates; Tifton, Fitzgerald, Moultrie, Val- dosta, Thomasville and Bainbridge are In group B and take the same rate. Ash- burn is a thriving place with a popula- tion of something over 2,200, practically the same as Tifton. It has no wholesale or jobbing business because under ex- isting rate adjustments dealers at Cor- dele can bring in goods from the east or west and pay the local rates to Ashburn at the same freight cost that the Ash- burn merchant would have to pay on through shipments. A similar discrim- ination existed against Ashburn and In favor of Cordele and Tifton as to the state rates and that discrimination was found to be undue, and the same rates were aocorded to Ashburn as to Cordele and Tifton in an order of the Georgia Railroad Commission of Sept. 1, 1911. On outbound shipments of commodities whioh that territory produces, such as lumber, cotton and cottonseed, defend- ants and their connections give to Ash- burn rates to Charleston and Jackson- ville substantially the same as to Tifton, Cordele and Albany, and on cottonseed products Ashburn has the same rates to the south Atlantic ports as have Cor- dele, Albany and Fitzsrerald. The higher rates at Ashburn than at Cordele or Tifton to which Ashburn Is dlrectlv inter- mediate contribute to the discrimination of which Ashburn complains. More In- terstate railroads serve Cordele than Ashburn, and hence certain competitive conditions exist there. The present rates to Cordele and Tifton have been in effect since 1905, except that during that period the rates on grain and grain prod- ucts and hay from the west have been increased. HELD, the competitive con- ditions existing at Cordele and Tifton are the direct result of the act of the carriers in preferring those points by such rates as have produced this result. It is not so much a question of whether or not railroads compete at one point and decline to compete at another point, but is whether or not by so doing they create or maintain unjust discrimination or undue preference. The fact that if Ashburn had an equitable rate adjust- ment it would be enabled to do but a comparatively small business on account of the competition at the other points so near to it is no reason why Ashburn may be wholly excluded from opportunity to get what it can. The present rate ad- justment is unjustly discriminatory against Ashburn and unduly preferential to Tifton and defendants are required to include Ashburn in the same class with Tifton under class and commodity rates from and to the points and territories complained of. Chamber of Commerce of Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140. §8. (3) Railroads in General. (a) The making of higher rates on dressed meats and packing house prod- ucts from Missouri river points to Chi- cago than upon live stock between the same points is found not to be unjustly discriminatory, where the rate results from genuine competition between car- riers and where the result of the rate complained of has not been to change the volume of traffic going to Chicago or ma- terially affect the business of the com- plainant. I. C. C. V. C. G. W. Ry. Co., 209 U. S. 108, 122, 28 Sup. Ct. 493, 52 L. ed. 705; affirming 141 Fed. 1003. (b) No unjust discrimination resulted from the maintenance of a lower com- modity rate from a neighboring point be- cause of competition. American Cigar Co. V. P. & R. Ry. Co., 20 I. C. C. 81, 82. (c) The rate on wrought iron pipe, Youngstown, O., to Liberal, Kan., as compared to Texola, Okla., the distance being substantially the same and the physical cost of handling the traffic about the same, is not unreasonable, nor In violation of section 3 of the Act, It ap- pearing that competition at certain Texas points reflects itself to these Oklahoma points, and that to sustain the position of the complainant would subvert the entire structure in that section. Blake DISCRIMINATION, §8 (3) (d)— (f) 249 & Son Hardware & Mfg. Co. v. B. & O. R. R. Co., 20 I. C. C, 139. (d) Complainants attacked the first six class rates in the Southern Classification and commodity rates on grain and grain products, hay and packing house prod- ucts, carload, from Chicago, 111., East St. Louis, 111., Louisville, Ky., Columbus and Cincinnati, O., to Durham and Winston- Salem, N. C. (known as the Carolina Cities), and on lumber west, as unrea- sonable compared with rates on the same class of shipments from the same points to the "Virginia Cities." The first class rate from Cincinnati to Roanoke, Lynch- burg, Richmond and Norfolk, Va., was 62c, the short line distances being 456, 472, 580 and 667 miles, respectively; rates on flour being 13^c, grain 13^c, hay 23c and packing house products 23c. Cin- cinnati, Louisville, East St. Louis and Chicago are 588, 5G5, 836 and 863 miles, respectively, from Winston-Salem, and 578, 640, 971 and 873 miles, respectively, from Durham. The first class rates to these points were from Cincinnati and Louisville, 93c; East St. Louis, $1.26; Chicago, $1.28. On flour, carload, 29i^c, 381^0 and 35c, respectively; grain 28i^c, Z5y2C and 34c, respectively; hay, 29c, 36c and 44c, respectively; packing house products, 37c, 49c and 49c, respectively. The Carolina Cities have each a popula- tion of about 25,000. They are nearer Cincinnati and all points west thereof than most of the cities taking the Vir- ginia Cities rates. It appeared that de- fendant's rates to the Virginia Cities were made under competitive conditions which did not exist at the Carolina Cities. These cities are less than 125 miles from the nearest of Virginia Cities on the line of the N. & W. Ry. which reaches Cincinnati. HELD, while it is true that transporta- tion conditions are to some extent dif- ferent on the lines extending south from Roanoke and Lynchburg than obtain on the main line from Roanoke and Norfolk, yet the difference by no means warrant rates to Winston-Salem and Durham on through traflSc that are so much higher than are maintained to main line points. Competition has, no doubt, affected rates to points on the main line of the N. & W. Ry., but this competition has to no con- siderable extent been reflected to points south. There is no justification to be found for the charges made on shipments to Winston-Salem and Durham on through traflic from the western points involved. First class rates from Cincin- nati were reduced to 84c, with other class rates proportionately, and carriers left to adjust the class rates from the other western points. Commodity rates on flour, grain, hay and packing house prod- ucts eastbound in carloads and on lumber westbound in carloads not found unrea- sonable. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303; decision of Commission sustained, N, & W. Ry. Co. v. U. S., 195 Fed. 953. (e) Complainant alleged that defend- ant's rates, carload, on wall plaster from Syracuse, N. Y., to Boston, Mass., 350 miles, of $2 per net ton, minimum 40,000 lbs., and $1.75 from Syracuse to New York, N. Y., 290 miles, were unreasonable and discriminatory, compared with a rate of $2 to Boston from Oakfield, N. Y., 455 miles, and from Garbutt and Wheat- land, N. Y., a distance of 445 and iM miles, respectively, and the rate of $2 to New York City from Garbutt, Wheat- land and Oakfield, distances of 375, 377 and 395 miles, respectively. Wall plaster is made of raw material, substantially 65 per cent sand and 35 per cent plaster, the latter being purchased at points other than Syracuse, including Oakfield and Garbutt, where it is shipped to com- plainant in Syracuse. Complainant in- sisted it ought to have a lower rate from Syracuse on wall plaster because the car- riers have a haul on the raw material in. The rate from Syracuse to New Yofk yields about 6 mills per ton mile; from Oakfield and Garbutt, 5.3 mills; the rate from Syracuse to Boston yields 5.7 mills, whereas the rate from Oakfield or Gar- butt and Wheatland to Boston yields about 4.4 mills; but defendants insisted that the rate from the latter named point was due to the competition of other car- riers having a shorter line mileage in connection with the B. R. & P. R. R. HELD, the facts appearing fail to con- vince the Commission that the rates complained of are, under all the circum- stances, unreasonably high or unduly dis- criminatory. Complaint dismissed. Par- agon Plaster Co. v. N. Y. C. & H. R. R. R. Co., 19 I. C. C. 480. (f) Complainant attacked the rates on coal from the Walsenburg mines in south- ern Colorado to points on the line of the C. & N. W. Ry. in Nebraska between Chadron and Stuart, Neb., and to Belle Fourche, S. D. Rock Springs is located in southwestern Wyoming, Crawford and Dakota Junction in northwestern Ne- m DISCRIMINATION, §8 (3) (g) braska, Lead and Deadwood in the Black Hills region, north of Crawford and in western South Dakota, and Belle Fourche east of Lead and Deadwood. Rock Springs and Walsenburg are equally dis- tant from Crawford; Hannah, Wyo., lies some 159 miles east of Rock Springs. The C, B. & Q. R. R. applied from the Wyoming mines served by it to Crawford and to Lead and Deadwood the same rate as that applied by its competitor, the C. & N. W. Ry., and its connections from Hannah to Crawford, The C, B. & Q. K. R. and its connections then applied from Walsenburg to Crawford the rate made by the C. & N. W. Ry. from Han- nah to Crawford. The C, B. & Q. R. R. and the C. & N. W. were not in com- petition with respect to the rate from Rock Springs to Crawford, the latter line controlling the coal produced at Rock Springs. As a result Walsenburg had a rate of 75c less per ton to Craw- ford and Dakota Junction than Rock Springs, although the distances were the same. Ghadron and Stuart lie east of Crawford on the line of the C. & N. W. Ry. and are not reached by the C. B. & Q. R. R., nor are the rates of the C. & N. W. Ry, to these points influenced by the competition of that carrier. Consequently the rates from Rock Springs and Walsen- burg to these points, being based on equal distances, were the same, and Wal- senburg did not enjoy, as it did to Craw- ford, a lower rate than Rock Springs, The rates to Belle Fourche were also uninfluenced by the competition of the C. B. & Q. R. R. and, therefore, Walsen- burg enjoyed no advantage over Rock Springs. No evidence of the unreason- ableness per se of the rates attacked was given, except comparisons with the rates in territory lying east of the Mis- souri and Mississippi rivers and nothing was offered to show the conditions to be similar. The rates complained of were not out of line generally with those found by the Commission heretofore to be unreasonable in the territory in ques- tion. The territory surrounding the des- tinations in question was unproductive. The rates attacked yielded little over 7 mills per ton 1 mile. HELD, defendants did not unjustly discriminate.against Wal- senburg in favor of Rock Springs in fail- ing to give a lower rate from Walsenburg to points in Nebraska and South Dakota east and north of Crawford and Dakota Junction, since the lower rate accorded Walsenburg to Dakota Junction was compelled by competition; and that the evidence was not sufficient to show the rates attacked to be unreasonable per se. Colorado Coal Traffic Ass'n v, C, & S. Ry. Co,, 18 I. C. C, 572, 576. (g) Prior to Aug. 13, 1907, the through class rates of defendant from New Or- leans via Mobile to Montgomery, Selma and Prattville, Ala., were in excess of the combination of locals on Mobile and the same was true of the through rates from New Orleans to said points via Pensacola. On Aug. 13, 1907, defendant raised the local rates from New Orleans to Mobile and from Mobile to Pensacola so as to make the combinations of lo- cals equal to the through rates from New Orleans to Montgomery, Selma and Prattville, but did not disturb the local rates from Mobile and Pensacola to such points or the through rates from New Orleans to them. Complainant shippers at New Orleans attacked the increase and also the through rates to them from New Orleans via Mobile and via Pensa- cola. The local rates from New Orleans to Mobile and Pensacola had been in effect for many years prior to the in- crease and had been determined by water competition which had ceased to be practicably operative. New Orleans was engaged in shipping staple goods to Mo- bile and adjacent territory and was keen- ly affected by the rise in rates. The rates from New Orleans to Mobile and Pensacola had been in effect for over twenty years and there was no evidence that they were not compensatory. They exceeded the rates from New Orleans to other transportation points, e. g„ Natchez, Vicksburg, Greenville and Mem- phis, where the distances were much greater, and also exceeded the rates from Nashville, Memphis, Cincinnati and Louisville to points where the distances were approximately the same. Prior to the advance the rates between New Or- leans and Mobile and New Orleans and Pensacola were identical in both direc- tions. Under the advance the rates were in many cases greater from New Orleans to Mobile and from New Orleans to Pen- sacola than the rates between such points in the opposite direction. Be- tween New Orleans and Memphis, New Orleans and Greenville, New Orleans and Natchez and New Orleans and Vicks- burg, the rates were the same in both directions. Ihe rates from New Orleans to Montgomery, Selma and Prattville were higher on all classes than the rates DISCRIMINATION, §8 (3) (h)_(j) 251 to them from other points typical of the situation in the southeast, from where the distances are greater, e. g., Bruns- wick, Ga., Savannah, Ga., Charleston, S. C, Wilmington, N. C, and Nashville, Tenn. From some of 'the Virginia cities to Montgomery and Selma the rates were less than from New Orleans to Mont- gomery and Selma, although more than twice the distance. The rates per ton mile were much greater from New Or- leans to Montgomery, Selma and Pratt- ville than they were from Memphis, St. Louis and Louisville. HELD, the in- crease in the local rates from New Or- leans to Mobile and from New Orleans to Pensacola was unreasonable, and should not exceed those in effect prior to the advance; and that the through rates from New Orleans to Montgomery, Sel- ma and Prattville were unreasonable and should not exceed the combination of locals based on Mobile and Pensacola as such locals stood prior to the increase attacked. New Orleans Board of Trade V. L. & N. R. R. Co., 17 I. C. C. 231, 237; decision of Commission sustained, 184 Fed. 118, but order subsequently enjoined, Mack, J., dissenting, 195 Fed. 541. (h) The rates on grain and grain products from Kansas City or Omaha to points east of the Mississippi river and north of the Ohio river are the same via all lines and crossings. These rates were established in order to provide an equality in competitive conditions be- tween grain dealers and carriers at the various Missouri river crossings. The rates on grain originating west of the Missouri river and passing through Omaha or Kansas City to St. Louis, thence to Cairo, Carolina territories, Memphis, New Orleans, Galveston, and other Gulf ports for export, are one cent higher from Omaha than from Kansas City, the proportionals from Kansas City and Omaha to St. Louis being equal. Complainant grain dealers at Kansas City attacked the rates as unduly discrimi- natory in favor of Omaha, in view of the fact that Kansas City is 137 miles nearer to St. Louis and 194 miles nearer to Memphis, New Orleans and Galves- ton than is Omaha. Complainants asked for the establishment of differentials from Omaha to St. Louis 2i^c above Kansas City to St. Louis, and from Oma- ha to Cairo and other southern points of SV^c above Kansas City. It appeared that the adoption of these differentials would result in a clear division of the producing territory between Kansas City and Omaha and would be destructive of competition in most of that territory, destroying the long established adjust- ment which placed Missouri river cross- ings substantially on a parity on both inbound and outbound rates on traffic generally. Kansas City would thereby gain a monopoly of territory in which Omaha now freely competed, and the ap- plication of the same rule to Omaha would give it exclusive purchasing pow- er in territory in which Kansas City now competed with Omaha on equal terms. To grant complainants' demand would also upset the delicate adjustment of grain rates on shipments from Missouri river crossings to points in eastern ter- ritory. HELD, following Traffic Bureau, Merchants' Exchange of St. Louis v. M. P. Ry., 13 L C. C. 11, in view of these competitive conditions the element of distance should not be made controlling in fixing rates from Omaha and Kansas City to the southern territory in ques- tion. Complaint dismissed. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 16 I. C. C. 195, 203-7. (i) Complainant, the City of Bristol, attacked the rate of $1.20 per ton on coal from Middlesboro, Ky., to Bristol, Tenn., 200 miles, as compared with the rate of 80c from Middlesboro to Chattanooga, 180 miles. Bristol was supplied from the Appalachia coal fields, which were only 70- miles distant from Bristol. Produc- ers at Middlesboro found this competition prohibitive and did not attempt to reach Bristol with their product. Mines served by other roads were located from 5 to 21 miles away from Chattanooga and defendant established the said Middles- boro to Chattanooga rate in competition with the rates from said mines. No evi- dence of the unreasonableness per se of the rate attacked was offered. HELD, on account of dissimilarity in conditions, the rate to Bristol was not unjustly dis- criminatory against complainant as com- pared with the rate to Chattanooga. Board of City of Bristol, Tenn., v. So. Ry. Co., 15 L C. C. 487, 490. (j) Complainant attacked the rates from Indianapolis to St. Louis on Iron beds of 24c, furniture of 32i^c, iron and steel of 13.5c, ladders of 24c, chairs of 32%c, castings of 13.5c, and bags of 16.5c, as compared with the rates on these commodities respectively of 16.6c, 22c, 252 DISCRIMINATION, §8 (3) (k)— (m) 9c, 16.6c, 22c, lie and 10c respectively from Chicago to East St. Louis. On ac- count of the disparity in rates on iron and steel, Indianapolis was unable to compete with Chicago in the St. Louis market. Under the Indianapolis mini- mum of 18,000 lbs. on furniture for a 50-foot car, as compared with the Chi- cago 10,000 lbs. minimum for any length of car, the Indianapolis shipper on a fully loaded car suffered disadvantage in rates of $32.10. The rates from Chicago to Mississippi river crossings were made low by western lines and the same rates applied irrespective of the difference in distances to various crossings, upon the theory that the line hauling the traffic to the Mississippi river would probably •receive the outbound haul and also with the idea of building up the river cross- ings located upon their rails. HELD, despite the existence of competitive con- ditions at Chicago making it necessary for the lines serving both Indianapolis and Chicago to make lower rates from Chicago, the disparities in the rates from Indianapolis and Chicago were too great, and the rates on iron and steel articles, including castings, and on bur- lap and gunny bags from Indianapolis should not exceed rates from Chicago by more than 2i^c; on furniture and chairs by more than 7c; on iron beds and wooden ladders by more than 4c. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 516. (k) On grain originating west of the Missouri river and destined to Little Rock and Arkansas points via St. Louis, local rates were charged up to the Mis- souri river; proportional rates of 9c on wheat and 8c on coarse grains from the Missouri river to St. Louis; and local rates of 18c on wheat and 15c on coarse grains from St. Louis to Little Rock. On grain from the points of origin in ques- tion, via Kansas City to the points of destination in question, the rates were the locals to Kansas City plus propor- tional rates to Little Rock, equal to the local rates from St. Louis to Little Rock. The average distances from Kansas City and St. Louis to the Arkansas destina- tions in question were 480 and 277 miles respectively. Under the rates attacked St. Louis dealers were unable to sell grain from the points of origin to the points of destination in question. HELD, both on account of the difference in dis- tance and of competitive conditions, St. Louis dealers were entitled to a lower rate from St. Louis to said Arkansas points than the rate from Kansas City; that the 18c wheat and the 15c coarse grains rates from St. Louis to said points of destination were unreasonable per se and unduly discriminatory in favor of Kansas City, and that proportional rates from St. Louis of 13c on wheat and lie on coarse grains should be established. The Traffic Bureau, St. Louis, v. M. P. Ry. 13 I. C. C. 11, 13, 14. (1) Defendants charged 26i/4c on wal- nut lumber from Oklahoma City to Gal- veston, a distance of 552 miles, destined for export, and 18c from Kansas City to that port, a distance of 962 miles. Com- plainant attacked this rate as unduly discriminatory in favor of its competitors at Kansas City. Complainant obtained its logs to the east and northeast of Oklahoma City, to which they were brought by rail, and the lumber there manufactured from them. When the lumber was manufactured at Kansas City the logs were hauled north and east and then the lumber going by the lines of defendants was hauled back over sub- stantially the same route, whereas when manufactured at Oklahoma City the logs moved southerly and the lumber con- tinued in the same course to Galveston. There were more competing carriers^ from Kansas City to Galveston than from Oklahoma City to that port. Since the hearing defendants filed a tariff of 21 %c from Kansas City. HELD, the rates from Oklahoma City were unrea- sonable and should not exceed 21 %c. Miller Walnut Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. 43, 45. (m) Prior to 1906 complainant, furni- ture manufacturer at New Albany, Miss., shipped most of its products to Missis- sippi and Texas. It operated in com- petition with factories at Greenwood, Miss., and High Point, Mount Airy and Winston-Salem, N. C. The latter three cities shipped furniture to the eastern and New England trade. The rate from North Carolina points was 49c to New York, and from New Albany to New York $1.09. Complainant, after long negotiations, secured from defendants rates from New Albany of 55, 58, 58 and 56c respectively to Baltimore, Boston, New York and Philadelphia, which left a differential in favor of the North Caro- lina points of 10, 5, 9 and 7c to those cities respectively. In reliance on the DISCRIMINATION, §8 (4) (a)— (b) 253 new rates complainant abandoned Its southwestern business, changed its pat- terns, and began to sell to eastern and New England markets. After a short period defendants raised the rates from New Albany to 63, 71, 66 and 64c to said cities respectively. Complainant at- tacked the increase as unreasonable. The increased rates were the same as those applying from Memphis and Green- wood, New Albany being located some 80 miles southeast of the former. The advance practically absorbed complain- ant's entire profit. The Memphis rates were not fixed by water competition, since it was impracticable to ship the kinds of furniture involved by water. Un- der the canceled rates the per ton mile revenue was 11, 10, 9 and 9 mills re- spectively to Baltimore, Philadelphia, New York and Boston. From said North Carolina points under the former rates therefrom, which were not disturbed, the per ton mile earnings were materi- ally higher to eastern destinations than those under the' canceled New Albany rates. The differential of the canceled New Albany to New York rate over the Winston-Salem to New York rate was the same as the differential of the Win- ston-Salem rate to points the same dis- tance in western territory over the New Albany rate to such western points. De- fendants put into effect the increase attacked upon the threat by other car- riers to reduce the rates from Green- wood, although defendants did not reach Greenwood. The distance from New Albany to the eastern markets in ques- tion was much greater than from said North Carolina points. HELD, the rates attacked were unreasonable and should be reduced on a carload minimum of 12,000 lbs. to 58, 59, 61 and 63c to Bal- timore, Philadelphia, New York and Bos- ton, respectively. New Albany Furni ture Co. V. M. J. & K. C. R. R. Co., 13 I. C. C. 594, 599. §8. (4) Short-Line Carrier. (a) Point Pleasant, N. J., is 2i^ miles south of Seagirt, N. J. Manasquan lies between Seagirt and Point Pleasant. Bay Head lies one mile south of Point Pleasant. The Penn. R. R. approaching from the south reaches all these towns. On coal from Pennsylvania mines it charged $2.05 to Bay Head and Point Pleasant and only $1.90 to Manasquan and Seagirt. The lower rate to Seagirt and Manasquan was compelled by the competition of the Central R. R. of N. J., which was the short line route reach- ing Seagirt and Manasquan, but which did not reach Point Pleasant. To lower the Point Pleasant rate would have the effect of disturbing the rate to points in the south grouped by the Penn. R. R. with Point Pleasant. No evidence was offered of the unreasonableness per se of the Point Pleasant rate. HELD, such rate was not unduly discriminatory against coal dealers at Point Pleasant. Ocean County Coal Co. v. Central R. R. of N. J., 17 I. C. C. 383, 384. (b) Complainant attacked the com- modity rates on various articles from Chicago to Ft. Dodge, la., as compared with similar rates from Chicago to Des Moines and Albert Lea, Minn., these rates being about lo lower to Des Moines, and from i^c to 6i/^c lower to Albert Lea than to Fort Dodge. These three cities were substantially the same distance from Chicago. In a great por- tion of northwestern Iowa Ft. Dodge could successfully compete in manufac- turing and jobbing with the other cities. The per car mile rates from Chicago to Ft. Dodge were somewhat higher than those from Milwaukee to East St. Louis, Chicago to Kansas City, and Duluth to Des Moines. The low rates to Des Moines were forced by the rates estab- lished by the Rock Island, the short line from Chicago, and Chicago roads had to meet St. Louis competition. The lower rates to Albert Lea were influenced by the Chicago to St. Paul rates on account pf the supposed application of the long and short haul clause of the Act. Ft. Dodge jobbers were able successfully to sell drygoods in Nebraska, North Da- kota, South Dakota, Iowa and Minnesota, and clay products were successfully sold from Ft. Dodge into northern, southwest- ern and southeastern Minnesota, Wiscon- sin, Michigan, Illinois and North Dako- ta. The class rates from St. Louis to Des Moines were materially less than from Chicago to Des Moines, while the class rates to Ft. Dodge from both St. Louis and Chicago were the same, show- ing that the competition of St. Louis was more potent at Des Moines than at Ft. Dodge. HELD, on account of the difference in conditions at Ft. Dodge and Albert Lea, the higher commodity rates to Ft. Dodge were not unduly discrimina- tory. Fort Dodge Commercial Club v. 254 DISCRIMINATION, §8 (4) (c)— §8 (5) (c) I. C. R. R. Co., 16 I. C. C. 572, 578, 579, 581, 583. (c) Petersburg and Richmond, Va., lying 20 miles apart, are connected by the A. C. L. R. R. and the S. A. L. Ry. The rates on lumber to Columbus and defined Ohio territory were 16c. Ches- ter, Va., is reached by both lines and lies intermediate between Petersburg and Richmond. The rates from Chester to the same destinations were 18.3c. The N. & W. Ry., extending from Petersburg to Columbus, published a rate of 16c. The C. & O. R. R., extending from Rich- mond to Columbus, had in effect a rate of 16c from Richmond. To meet the competition of the N. & W. Ry., the S. A. L. Ry. was obliged to make a 16c rate from Petersburg. HELD, the rate from Chester might properly exceed that from Richmond and Petersburg, but should not exceed said rates, as under the rate complained of, by the full local from Chester to Richmond of 2.3c, since It cost the S. A. L. Ry. and C. & O, R. R. less to transport lumber on a through haul from Chester than on a local haul into and local haul out from Richmond, and that the proper rate from Chester would be IT^c. Randolph Lumber Co. V. Seaboard Air Line Ry., 13 I. C. C. 601, 603. §8. (5) Water Carriers. See Evidence, §14 (5) (b), (z) ; Long and Short Haul, §10 (i), (dd). (a) Wholesale fruit and produce mer- chants of Columbia, S. C, alleged they were unjustly discriminated against in favor of Augusta, Ga., in the carload rates on apples, potatoes, cabbages and onions from Rochester, Albion and Ap- pleton, New York. To Columbia the 6th class rate of 42c applied, while to Augus- ta a commodity rate of 34c was effective. Augusta is situated on the Savannah river and Columbia on the Santee river and cargoes are transported on both rivers. The brief of defendants an- nounced their intention to place Augusta and Columbia substantially on a parity. HELD, no dissimilarity of conditions exist which justifies a higher rate to Columbia than to Augusta on the com- modities and from the points of origin involved, and that the rates for the fu- ture to Columbia should not exceed those contemporaneously applied to Augusta. Reparation awarded on shipments move- ment since the filing of the complaint. DuPre Co. v. B. R. & P. Ry. Co., 23 I. C. C. 226. (b) Complainant admitted the reason- ableness of the carload rate of 10c per 100 lbs. on coarse salt in bulk to Chicago from Retsof, Cuylerville, N. Y., and other salt producing points in that vicinity, and asked that the rate be scaled to other destinations in Central Freight Associa- tion territory in accordance with the per- centage system of rates. The dock facili- ties for handling and storing water borne salt at Chicago are entirely controlled by complainants and the boat line that handles practically all the salt from Buf- falo to Chicago is likewise owned by complainant. About one-half of com- plainant's tonnage to Chicago moves by water. HELD, that the rate to Chica- go is a compelled rate by water com- petition and that such competitive com- petition does not exist at intermediate points. Complaint dismissed. Interna- tional Salt Co. V. G. & W. R. R. Co., 20 I. C. C. 530. (c) Complainant jobber at Columbia, Tenn., attacked the rate of 31c on sugar in carloads from New Orleans and Col- umbia as unreasonable per se and as discriminatory as compared with the rate to Nashville of 15c, Decatur, Ala., 24c, and Clarksville, Tenn., 15c. Colum- bia is located 76 miles north of Decatur, 45 miles south of Nashville, on the main line of the L. & N. R. R. It is not on or near any navigable water course. The rate attacked was made by combina- tion on Nashville. The aggregate on the in-and-out rates made less from Nash- ville and Decatur than from Columbia, and dealers could ship into and beyond Columbia, down to within a few miles of Decatur, and Decatur dealers could ship to a point near Columbia on a par- ity with Columbia dealers; so that under the adjustment of rates attacked, Col- umbia was on a parity with Nashville only in a restricted area in its immediate vicinity and had no advantage even In Columbia. Decatur is located on the Tennessee river and is reached by another carrier beside defendant. Clarksville is on the Cumberland river and 'is reached by another carrier beside defendant. No evidence was offered to show the rate attacked unreasonable per se and it was lower than other rates in the same territory for similar distances based on the local distance scale, HELD, the rates at Nashville, DISCRIMINATION, §8 (5) (d) 255 Decatur and Clarksville being controlled or influenced by water competition, those towns were entitled to their nat- ural advantage and the charging of a higher rate to Columbia, a point inter- mediate to New Orleans and Nashville, did not constitute unjust discrimination. Columbia Grocery Co. v. L. & N. R. R. Co., 18 I. C. C. 502, 506. (d) Complainant shippers at Cincin- nati and Chicago attacked as unreason- able per se the numbered rates from these cities to Chattanooga and as com- pared with those from Baltimore, New York, and other eastern cities to Chat- tanooga. The defendants were the C. N. O. & T. P. Ry. Co. and the Southern Ry. Co., which controls the former railroad. These two railroads as a system reached both the points north of the Ohio river in question and the eastern points in question, although the rates specifically attacked were from Chicago and Cincin- nati to Chattanooga. Those considered by the Commission involved the rates from Cincinnati to southern cities gen- erally. The rates attacked from Cincin- nati to Chattanooga were 76c, 65c, 57c, 47c, 40c and 30c, and from Chicago to Chattanooga, $1.11, 95c, 79c, 62c, 53c and 40c, as compared with those from New York to Chattanooga of $1.05, 93c, 83c, 68c, 56c and 44c, and from Baltimore to Chattanooga of 98c, 87c, 78c, 63c, 52c and 41c for classes 1, 2, 3, 4, 5 and 6, re- specively. • In 6 I. C. C. 195 (1894) the Commission ordered the reduction of the rates then in effect from Cincinnati to Chattanooga on the assumption that the carriers serving the eastern points, and those serving points north of the Ohio River, in dividing up the territory by the Toronto - Buffalo - Pittsburgh - Huntington Line and in fixing rates so that all traffic moving into the south from northern points west of that line should be carried by lines running via the Ohio River cross- ings, and that all traffic originating east of this line should be carried by eastern carriers, arbitrarily arranged that the eastern cities should enjoy lower rates on the numbered classes covering manu- factured products than the cities north of the Ohio River. In the present case tho Commission found as a fact that no such arbitrary division was made and that the carriers intended no discrimination cal- culated to give eastern cities the ascend- ency in manufactured products shipped Into the south. Under the rates attacked the distance from Chicago to Chattanooga was 70 per cent of that from New York to Chattanooga, while the first class rate was 106 per cent. The distance from Cincinnati was but 40 per cent, while the first class rate was 72 per cent. The lower eastern rates were, however, forced by water competition, and although the distance from New York to Chattanooga Is greater from the northern points in question, the low divisions which the ocean carriers accepted offset this division, the traffic moving from New York to Savannah as typical points and thence by rail to Chattanooga. The ocean carriers, for ex- ample, on traffic from New York to Sa- vannah en route for Atlanta, moving about 750 miles by water, accepted their division of the through rate on the basis of a carriage of 250 miles. Constructing distances from New York to typical southern points on the basis of the mile- age charged for by the ocean carriers the average distance from Cincinnati was 507 miles, average rate 69.6c, the average rate per ton mile, .0274c. The average distance from Chicago was 765 miles, the average rate 91.4c, the average rate per ton mile, .0239c. Chattanooga and other points were first reached and served by the eastern rail and ocean carriers and were developed mainly by eastern com- petition. Upon the advent of the western railroads into the south the eastern car- riers adopted a fixed policy of keeping rates lower than those from points north of the Ohio, over western lines. From the fact that the various eastern carriers served exclusively certain cities in the south, the rates from the east were low- ered by competition between these east- ern carriers in developing the particular southern cities served by them. The Nor- folk & Western Ry., for example, served Chattanooga but not Atlanta, and insisted on maintaining the same rate from the east to Chattanooga as was established by other carriers to Atlanta. Under the rates attacked neither the east nor the west had obtained in actual experience any abnormal advantage in the amount of traffic actually moving thereunder from either section. On the point of the rea- sonableness per se of the rates attacked it appeared that the C. S. R. R. was built by the city of Cincinnati and leased to the defendant, C. N. O. & T. P. Ry. Co., on a rental yielding on the original lease some 6 per cent upon the cost of con- struction and under the present leas^ DISCRIMINATION, §8 (5) (e)— (f) some 5 per cent. Since 1899 defendant lessee had -paid the stipulated rental and made handsome profits, the gross earn- ings per mile of the C. S. R. R. connect- ing Cincinnati and Chattanooga for a typical year being $26,000, which was more than the average gross earnings of the railroads in any group in the United States, and despite heavy grades and high cost of operation the net earnings were some $7,000 per mile. Taking, however, the railroad system to which the C. S. R. R. belonged, as a whole, the gross earnings per mile would not he more than those of other carriers in the same terri- tory. The rates from Cincinnati in all directions, except to points south of the Ohio River, for distances similar to the distance from Cincinnati to Chattanooga in no case exceeded 60c first class and were often as low as 40c. The rates from Cincinnati to Chattanooga could not be reduced without disturbing the rates from Louisville and Memphis to Chattanooga. The lowering of the rate from Memphis to Chattanooga would result in the lower- ing of the rate to Birmingham, and this in turn would compel a reduction of the rates from northern points to Atlanta, End would upset an adjustment of rates from northern points in 1905 between Birmingham, Montgomery and Atlanta and re-open that contest. The rates at- tacked were lower than similar rates pre- scribed by the railroad commissions of most states in the south, and were as low and usually lower than the interstate rates made by southern railroads for simi- lar distances. The rates attacked were higher than those from Cincinnati to Nashville, but the latter rates were in- fluenced by water competition. They were higher per ton mile than the rates from Virginia cities to Atlanta, but the latter were exacted by water competition and the distances involved greater. The rates from Virginia cities south for dis- tances of from 300 to 350 miles equaled or exceeded the rates from Cincinnati to Chattanooga. The increase in defend- ants, traffc was offset by increased cost of operation. HELD, the rates attacked were not unduly discriminatory against the territory north of the Ohio River, and I in favor of the east, on account of the difference in conditions mentioned; that the rates were not so clearly excessive as to require a widespread and far-reaching reduction; but that they were neverthe- less unreasonable and should be reduced to 70c, 60c, 53c, 44c, 38c and 29c from Cincinnati to Chattanooga on the num- bered classes respectively, with no reduc- tion in rates from Chicago. (Clements, Commissioner, concurring, but holding the reductions ordered in the majority report not sufficient.) Receivers' and Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 466; decision sus- tained, Hooker v. I. C. C, 188 Fed. 242. (e) Defendant's rate on hemp from Pacific coast terminals to Bismarck, N. D., was 50c; to Stillwater, Minn., and Chicago, 55c. From Seattle to Bismarck was 1,468 miles; to Chicago, through Bismarck, 2,375 miles. When defendant handled hemp from Seattle to Chicago it hauled same to Minnesota Transfer and there made delivery to its connection, receiving less than 50c per 100 lbs. for the haul to Minnesota Transfer. Hemp from the Philippines was brought both to Atlantic and Gulf coast ports and to Pacific ports, the cost to Atlantic and Pacific ports being substantially the same. The distance to Chicago from Gulf and Atlantic ports was about 1,000 miles. The evidence did not indicate that the haul to Chicago from the Pacific coast was unremunerative. HELD, in view of these competitive conditions the rate to Bismarck was not unduly discrimina- tory as compared with the rates to Still- water and Chicago. Hellstrom v. N. P. Ry. Co., 17 I. C. C. 580. (f) Complainant attacked the rates from Ohio and Mississippi river crossings and points north and west thereof to Montgomery, Ala., as compared with rates from said points to Birmingham, Ala.. Mobile, Ala., and Pensacola. Fla. Montgomery is located on the Alabama River, ninety-five miles farther than Bir- mingham from the points of origin in question. It is nearer to said points than Mobile and Pensacola. The rates at New Orleans were determined by water com- Detition via the gulf and the Mississippi river, and rates at that point from the points of origin in question were general- ly lower than to cities located some dis- tances north of New Orleans and not subject to such competition. For this reason the rates from the points of origin in question were less to Mobile and Pen- sacola than to Montgomery. The rates to Pensacola and Mobile were governed by the rates to New Orleans on account of competition between said cities. The Alabama river was navigable to Mont- gomery. While the rates from the points IDISCRIMINATION, §8 (5) (g)— (k) 257 in question to Birmingham were lower than to Montgomery, the rates from At- lantic seaboard points to Birmingham wer€ higher than to Montgomery. Fur- thermore, the rates to Birmingham from St. Louis were controlled by the Frisco R. R., which reached Birmingham, but did not reach Montgomery. " It appeared that to make the rates to Montgomery equal to those at Birmingham would disturb the whole rate adjustment in the southeast. HELD, Pensacola and Mo- bile were entitled to lower rates than Montgomery on account of their location as gulf ports and the adjustment of water competition, but that the rates to Mont- gomery must not exceed the combination rates from the points of origin in ques- tion to Mobile thence to Montgomery; and that on account of the greater dis- tance to Montgomery the influence of the Frisco R. R. in determining rates to Birmingham, the advantage of Mont- gomery over Birmingham in shipments from the east, and the fact that a change of the Montgomery rates would result in a general readjustment leaving Mont- gomery in the same relative position with Birmingham as before, the demand that the rates to Montgomery be made equal to those to Birmingham should be denied. Montgomery Freight Bureau v. L. & N. R. R. Co., 17 L C. C. 521, 530, 531. (g) Water competition at given point may render circumstances and conditions dissimilar and justify discrimination against points where such competition is not controlling. Planters Gin and Com- press Co. v. Y. 6c M. V. L. R. Co., 16 I. C. C. 131, 133. (h) Possibility of actual competition developing on a river justifies a slight difference in rates between a river point and one not so situated. Planters Gin and Compress Co. v. Y. & M. V. R. R. Co., 16 L C. C. 131, 133. (i) It is not unduly discriminatory to haul traffic to and from Gulf ports at lower rates than to and from Hatties- burg, Miss. The controlling effect of th^ Mississippi river and Gulf justify that adjustment. Commercial Club of Hat- tiesburg v. A. G. S. R. R. Co., 16 I. C. C. 534, 545. (j) Green Bay, Wis., took 107 per cent of the New York to Chicago rate. Com- plainant demanded that it be accorded 100 per cent of sa'd New York-Chicago rate, and complained that it was unduly discriminated against as compared with Milwaukee, Sheboygan, Manitowoc, Ke- waunee and Menomonie, Wis., all of which took 100 per cent. Green Bay could be reached by lake steamers only by going to the outlet of Green Bay, some 100 miles north of Kewaunee. Carloads were brought by rail to Muskegon and Luding- ton, 100 per cent points on the eastern shore of Lake Michigan, and the cars were then floated across to Milwaukee, Manitowoc and Kewaunee and also through a canal connecting Green Bay and Lake Michigan to Menomonie, which is situted some fifty miles Korth of tie city of Green Bay, on the west shore of Green Bay. On account of this ferry serv- ice said four cities were given the 100 per cent rate. Sheboygan, although not reached by ferry, was accorded said 100 per cent rate on account of its inter- mediate position to Milwaukee and Manitowoc, ijuring the season of open navigation, some seven months. Green Bay enjoyed lower watjr rates than said other four competing cities. For some twelve years preceding 1902^ some of de- fendant rail carriers had extended the 100 per cent rate to Green Bay on account of competition with the Can. Pac. R. R., which first applied said rate through Pembine, Wis., in connection with the C. M. & St. P. Ry. It did not appear, however, that complainants had founded their industries at Green Bay in reliance upon the 100 per cent rate or that said industries were imperiled by its with- drawal. HELD, the 100 per cent rate to said cities competing with Green Bay be- ing applied as the result of conditions not applicable at Green Bay, complainants were not entitled to the relief prayed for. Green Bay Busness Men's Ass'n v. B. & O. Ry. Co., 15 I. C. C. 59, 62-64. (k) Carriers may, for the purpose of meeting water competition, make rates lower than would otherwise be justifiable, even to the extent of charging a less rate to the more distant point. The carrier may determine for itself whether it will or will not meet such water competition. While, however, the carrier may in the first instance settle its policy in this re- spect, it must act under certain limita- tions. It cannot be permitted to compete at one point and decline to compete at another, where all conditions are the same; nor should it, ordinarily, be al- lowed to compete one day and decline to compete the next. The public has the right to require equal and uniform treat- ment within the bounds of reason. Cases 268 DISCRIMINATION, §8 (5) (D— (m) might therefore arise where the Com- mission would require the continuance of a rate established to meet such competi- tion. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 87. (1) Bainbridge lies on the Flint River in southwestern Georgia, a short distance northeast of the junctions of the Flint and the Chattahoochee rivers. Eufaula, Ala., lies on the Chattahoochee River about 135 miles northwest of the junc- tions of said rivers and approximately the same distance northwest of Bain- bridge. Albany, Ga., lies on the Flint River some 80 miles northeast of Bain- bridge. The class rates, taking the first six classes as typical, from St. Louis to Bainbridge and Eufaula were as follows: Class 1 2 3 4 5 6 Bainbridge ....155 131 115 94 78 G3 Eufaula 126 109 98 77 64 51 The through class rates from St. Louis to Bainbridge were less than the com- bination on Montgomery by 37c,'36c, 33c, 29c, 25c and 23c for the first six classes respectively. The rates from St. Louis to Albany were 146c, 126c, 113c, 90c, 75c and 60c for the first six classes, re- spectively. Complainant wholesalers at Bainbridge attacked this adjustment, and a like adjustment of commodity rates, as unreasonable per se and unjustly dis- criminatory against Bainbridge and in favor of Eufaula. At the present time Bainbridge is reached from St. Louis by two routes: (1) the L. & N. Ry. to Mont- gomery and the A. C. L. R. R. from Mont- gomery to Bainbridge; (2) the L. & N. Ry. to Montgomery, the C. of Ga. Ry. tc Cuthbert, Ga., and the G. F. & A. Ry. tc Montgomery. Eufaula is reached from St. Louis by the L. & N. Ry. to Mont- gomery and the C. of Ga. Ry. from that point to Eufaula. The rates to Albany from the West were adjusted witli respect to Atlanta, Augusta and Macon, Ga. The rates to Augusta and Macon were made differentials higher than the rates to At- lanta based on a distance of 90 miles to Macon. Just south of that group was the Albany and Dawson group, which took another set of differential rates higher than those to Macon. The basis for mak- ing rates from the west to Albany was established long before the construction of the A. C. L. R. R. from Montgomery to Bainbridge, and long before there was an all-rail route from St. Louis direct to Bainbridge. Prior to the establishment of this direct route from St. Louis to Bainbridge, shipments were made to Al- bany and thence by back haul to Bain- bridge. When the direct route from St. Louis to Bainbridge was completed by the construction of the A. C. L. R. R. from Montgomery to Bainbridge, the A. C. L. R. R., on shipments to Albany via Bainbridge, simply met the rate in effect from St. Louis to Albany via the L. & N. Ry. and the C. of Ga. Ry. The rates to Eufaula were established on the basis of the rates to Macon, as a result of com- plaints that the Eufaula rates were too high, as compared with those to Macon on the east and to Montgomery on the west. They were also the result of the competition of boat lines on the Chat- tachoochee River. When the Macon basis of rates was established at Eufaula, there was a direct line of railway from St. Louis to Eufaula, but there was no way to reach Bainbridge except through Albany or from other eastern junction points. Both Eufaula and Bainbridge were served by river steamers, which charged package rates irrespective of distance. On ac- count of this blanket rate, Eufaula was able to ship goods by rail from St. Louis to Eufaula and thence by river to Bain- bridge at lower rates than Bainbridge merchants could make the shipments all- rail. Defendant carriers had no connec- tion with these river boat lines and could exercise no control over them. Under the adjustment attacked, it appeared that the territory between Eufaula was fairly and equitably divided between these two points as jobbing centers, Bainbridge be- ing able to reach at lower rates the re- tailers at points located half way up to- ward Eufaula. HELD, that the rates at- tacked were not shown to be unreason- able per se; and that in view of the fact that the lines reaching Eufaula and Bain- bridge were not the same, and the lines at Bainbridge were not responsible for the rate adjustment at Eufaula, and no line reaching either place was responsible Tor the water rates from Eufaula to Bain- bridge, and in view of the further rule that rail carriers were not obliged to meet water competition, the adjustment attacked was not unjustly discriminatory against Bainbridge in favor of Eufaula. Bainbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 593. (m) A rule that whenever all-rail car- riers establish rates to a given point they must take notice of the independent water rates from that point and of the territory that can be reached thereunder, DISCRIMINATION, §9 (a)— (c) 259 and must make such adjustment as will prevent the use of the water rates from that point to another point resulting in discrimination against that other point by- reason of its all-rail rate adjustment, has no support in law, in public policy, or in sound transportation principles. Bain- bridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 590. §9. Disadvantage of Location. See Blanket Rates, §7 (f ) ; Equaliza- tion of Rates, §3. (a) Complainant, a manufacturer of sugar mill and sawmill machinery at New Orleans, La., attacked the rate of $3 per gross ton on pig iron from Bir- mingham, Ala., to New Orleans, Com- plainant appeared to be at a disadvan- tage in marketing that part of its fin- ished products, which it sells east of the Mississippi River, but its disadvan- tage in this respect appeared to be one of location. HELD, comparing the rate to New Orleans with rates from Bir- mingham to cities similarly situated, with respect to basing lines, such as Memphis, St. Louis, Louisville and Cin- cinnati, to the last three of which cer- tain of the defendants make or influence the rate, the Commission cannot find that the New Orleans rate is unreason- ably high. Complaint dismissed. New Orleans Board of Trade v. L. & N. R. R. Co., 23 I. C. C. 429, 431. (aa) Advantages of location are to be considered in determining whether a rate adjustment between localities is in violation of section 3. Chamber of Com- merce of Newport News v. S. Ry. Co., 23 L C. C. 345, 352. (b) The petition sought to have ac corded to Laredo, Tex., the same rates as applied to Texas common points on traffic principally originating in "de- fined territories," alleging the differ- entials to be prejudicial to Laredo in its competition with San Antonio and Corpus Christi. The defined territories extended from the eastern seaboard to the Colorado-Kansas line. From points between this line and the Pa- cific coast territory the rate adjustment was the same. The extreme point on the I. & G. N. R. R. to which com- mon point rates applied was Devine, Tex., 32 miles southwest of San An- tonio, 120 miles northeast of Laredo. Laredo is 161 miles west of Corpus Christi, and is the southern terminus of I. & G. N. R. R. and the northern terminus of the National Ry. of Mex- ico. It is also reached by the Texas- Mexican Ry. and Rio Grande & Eagle Pass Ry. Its population was 14,855. Some 10 per cent of the area surround- ing it was under cultivation. The chief crop was onions, upon which no differ- ential applied. The tonnage from and to Taylor-Devine common point terri- tory was, respectively, 31 and 570 per cent greater on interstate and 186 and 440 per cent greater on intrastate traf- fic than in the Devine-Laredo territory. The Taylor-Devine territory had com- petition. The Devine-Laredo territory had not. Laredo was a common point in the application of rail-and-water rates from the eastern seaboard via Galveston, and of rates from Pacific coast points and from defined territory as to grain. The benefit of common point rates was extended to Laredo for one month in 1905. An admission of a former officer of I. & G. N. R. R. that Laredo should be on equal foot- ing with Corpus Christi was in evi- dence. Texas common point rates via Galveston were lower on account of severe competition between Chicago, St. Louis and Texas railways and owing to ocean-and-rail competition. The cir- cumstances and conditions of traffic at Laredo, Corpus Christi and San An- tonio were not the same as to area of cultivation, tonnage and revenue. The population of San Antonio was 100,000. There was water competition at Corpus Christi, but no competition existed between these cities. The vol- ume of business affected by the differ- ential was very small. HELD, the ad- justment complained of did not unduly prejudice complainant. Complaint dis- missed. Board of Trade of Laredo, Tex., V. I. &. G. N. R. R. Co., 22 I. C. C. 28. (c) The rates for transportation of merchandise from Sioux City, la., to southwestern Minnesota were attacked as discriminatory against Sioux City in favor of Minneapolis and St. Paul. The class rates from the Twin Cities were lower than the class rates from Sioux City to stations equidistant from the respective points of origin. The greater portion of traffic involved moved under fourth-class rates, and inbound rates thereon to Sioux City were materially higher than rates to the Twin Cities. There exists keen competition between jobbers of these cities. Defendants con- 260 DISCRIMINATION, §9 (cc)— (d) tended that Sioux City has advantage in other territory; that transportation north from Sioux City is a back haul; that tonnage southward from Twin Cities is much greater, and that any change will necessitate adjustment else- where. HELD, that the advantages in other territory will not justify a preju- dicial rate; that the theory of back haul is equally applicable to the Twin Cities; that the shipments might be considered as originating in both points; that the greater tonnage will not justify the lesser rate here; that no sufficient reason exists for the difference in rates, and that the rates from Sioux City are unreasonable and discrimina- tory, in so far as they exceed the rates from the Twin Cities. Sioux City Com- mercial Club V. C. & N. W. Ry. Co., 22 I. C. C. 110. (cc) Where the location of a slaugh- ter plant is such that the haul upon the live animals is longer than to a compet- ing place, while the haul upon the manu- factured product is the same, the former packing-house rests under a natural dis- ability which ought not to be equalized in the rate. Each packing-house is entitled to a reasonable rate upon its product to various markets of consumption, and these rates should be fairly adjusted with reference to one another. Any locality which remains at a disadvantage after this has been done must sustain that burden which is due to its location. In- vestigation of Alleged Unreasonable Rates on Meats, 22 I. C. C. 160, 163. (d) Complainant, engaged in the pack- ing-house business at Cedar Rapids, la., alleged that it was subjected to unjust and undue discrimination in favor of its competitors in the adjustment of the through rates on live hogs from Iowa points to Boston and New York, as com- pared with the rates on hogs from Iowa points to Cedar Rapids, plus the rates on products from Cedar Rapids to Boston and New York. It was alleged that pack- ers at Chicago and the East can get their live hogs under such a low freight rate that, although complainant is situated right in the producing section, the rates on its finished product to eastern destina- tions are so high it is placed at a disad- vantage with its eastern competitors. Cedar Rapids was subject to an average rate on live hogs from Iowa points of lie, while the rates on its products to Boston were: fresh meats, 57c; cured meats, boxed, 42c; cured meats, in bulk, 49c; total rate of 68c, 5.3c and 60c, respectively, while the rates to New York were: fresh meats, 57c; cured meats, boxed, 39c; cured meats, in bulk, 45c; to- tal rate, 68c, 50c and 56c, respectively. The average live-hog rate from K "a points to Boston and New York was 50c. made up of l^c to the east bank of the Missis- sippi River and 35c beyond. The Chicago packers had rates to New York of 35c on packing-house products and 45c on fresh meats; to Boston, 39c on packing- house products, and 45c on fresh meats. Rates on live hogs west of the river and west of Chicago were, as a rule, the same as, or higher than, the product rates. Prom Cedar Rapids to Chicago, hogs took 18.5c, while the products moved under a 13.5c rate. From St. Paul, Minn., to Chi- cago the rate on live hogs was 27c, an'l on fresh meat and packinghouse products 20c. The defense of the rates east of the Mississippi River and east of Chicago was that the present adjustment main- ta ned commercial equality between com- plainants and the New York and Boston packers. From the record it appeared that for the Missouri River packer the rates to Boston on cured meats in bulk and on cured meats in bags or crates were 6c higher than the rate on cured meat., in boxes, and that the rate on fresh meat-^ was 12c higher than the rate on cured meats in boxes; that for the Chicago packer the differences were also 6c and, 12c, respectively, to Boston, and that for the Cedar Rapids packer the differences were 7c and 15c, respectively, to Boston. For the Missouri River and the Chicago packers the rates on cured meats in bulk or in bags or crates and on fresh meats to New York exceeded the rates on cured meats boxed, respectively, by 5c and 15c, and for the Cedar Rapids packer the differences to New York were 6c and 18c, respectively. HELD, that in the pur- chase of live animals, as well as in mar- keting the several products, there is active, actual and keen competition be- tween the packers at the Missouri River points and those at Chicago, and com- plainant. That it is unjustly and unduly discriminatory against complainant for defendants to maintain a greater spread between the rates on cured meats in boxes and cured meats in bulk, bags or crates, or between cured meats in boxes and fresh meats from Cedar Rapids to New York and New York rate points, or from Cedar Rapids to Boston and Bos- ton rate points than they contempo- raneously maintain in the rates from DISCRIMINATION, §9 (e)— (i) 261 Missouri River points, or from Chicago to New York and New York rate points or to Boston and Boston rate points. It is not expected that the present spreads in the Cedar Rapids rates will be narrowed by increasing the rates on cured meats or other products boxed, Sinclair & Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 490, 492, 498, 505, 506, 509, 510. (e) Complainant questioned the rea- sonableness of rates on cottonseed in carloads from points of origin in Okla- homa, Arkansas, Mississippi, Tennessee and Missouri to East St. Louis, 111., and also alleged unjust discrimination in the relationship of such rates as com- pared with rates on cottonseed products from points in the same cotton-producing territory at which cottonseed oil mills are located to East St. Louis and to points beyond, principally in Illinois. In- diana, Ohio, Michigan and Wisconsin; that the present rate adjustment discrimi- nated against the cottonseed oil mill at East St. Louis in favor of those mills near to points of origin. HELD, it is not the duty of the Commission to equalize the profit and loss results of competing operations in different localities by over- coming natural and commercial condi- tions with rate adjustments, and that charges on cottonseed products do not afford a strict measure for the reason- ableness of the rate on cottonseed. Com- plaint dismissed. E. St. Louis Cotton Oil Co. V. St. L. & S. F. R. R. Co., 20 f. C. C. 37. (f) Truck growers in the Charleston district, S. C, complained that the rates exacted by defendants on cabbage, po- tatoes, beans, peas and cucumbers from shipping points in that district to points in Virginia, Maryland, Pennsylvania, New Jersey, New York, Massachusetts and the District of Columbia were discriminatory, compared to rates from shipping points in Florida and from Norfolk, Va. The ev- idence showed that the rate per ton mile for the longer Florida haul was higher than for the shorter Charleston haul. The rate per ton mile from the shorter Norfolk haul was less than the rate per ton mile from the Charleston haul, owing, however, to the extremely keen water competition, which controls the rail rates from Norfolk. The profits per acre to the truck growers of Charleston seem to vary from $3 to |52, while the freight paid on the produce appears to average about $60 an acre. HELD, that while the risk and hard- ship of the grower are matters worthy of consideration, they are by no means controlling; that the Florida growers have natural advantages in climatic and other conditions; the Norfolk growers possess such conditions and also extremely satisfactory water serv- ice, which the Charleston growers do not have, and under the circumstances the rates attacked appear to be rea- sonable. Truck Growers' Ass'n v. A. C. L. R. R. Co., 20 I. C. C. 190. (g) Because carriers have con- structed a system of rates on a zone or blanket system is not sufficient rea- son to justify the collection of unrea- sonable charges to any point. Every city is entitled to the advantage of its location, and may not lawfully be sub- jected to high freight charges merely because carriers for reasons of con- venience or otherwise include it with a number of other points in surrounding territory, which latter points are not similarly situated. Corporation Com- mission of North Carolina v. N. & W. Ry. Co., 19 L C. C. 303, 309; decision of Commission sustained, N. & W. Ry. Co. V. U. S., 195 Fed. 953. (h) Complainants, refiners at New Orleans, La., attacked the rate on crude petroleum, in tank cars, of 17 ^c per 100 lbs., Muskogee, Okla., to New Or- leans, La., 634 miles, via the shortest route. Standard Oil Co., a competitor, has a refinery at Baton Rouge, La., which takes a rate of 15 cents from Muskogee and a rate from thence of 3c on the refined oil to New Orleans. The rate per ton mile to New Orleans at the nV2C rate is 5.52 mills, and under the 15c rate to Baton Rouge, 5.41 mills. HELD, that on the record it did not appear complainants are subject to any undue disadvantage. Record Oil Re- fining Co. V. M. V. R. R. Co., 19 I. C. C. 132. (i) The all-rail rates from the East to San Pedro, Cal., are based upon the through rates to Los Angeles plus the local rates from thence to San Pedro. Complainant prayed that San Pedro might be designated a Pacific coast terminal and accorded the same rates in effect to Los Angeles, San Diego, San Fran- cisco and other Pacific coast terminals. San Pedro Bay is about 125 miles north of San Diego and 500 miles south of San Francisco. T^s Angeles is 22 miles inland from the bay. A portion of the 262 DISCRIMINATION, §9 (j)— (n) harbor at San Pedro is commonly re- ferred to as the inner, and another part as the outer, harbor. The city of San Pedro, with a population of 6,000 or 7,000 inhabitants, lies partly on the outer harbor and partly on the inner harbor. Ad- jacent to it is East San Pedro, with a small population, but rather extensive lumber interests, and close to it is the village of Wilmington. These three towns now form a part of the city of Los Angeles. The physical connection between the several communities has been accom- plished by including within the enlarged municipal limit a string of land about one-half a mile wide and locally known as "the shOQ string," that extends from Los Angeles proper to San Pedro bay and harbor. Many millions of dollars are being spent in harbor development to take care of the commerce that is expected to flow through the Panama Canal. General merchandise originating at the Atlantic seaboard moves through the harbor at San Pedro to Los An- geles, and this tonnage, which is at times considerable, reaches destination in competition with the all-rail rates. HELD, that the Commission sees no explanation for the failure of the de- fendants to make San Pedro a ter- minal rate point, unless it be that Los Angeles is a place of large and growing commercial importance, while San Pedro itself, as a commercial commu- nity, is as yet practically undeveloped and therefore of small importance. The difference, however, in the importance of the two communities cannot in law be accepted as a justification for an undue discrimination in rates, and that San Pedro should be designated as a Pacific coast terminal and take the ter- minal rates. Harbor City Wholesale Co. V. S. P. Co., 19 I. C. C. 323, 331. (j) The mere fact that a sugar fac- tory has the better of its competitors by reason of its proximity to the beet fields, and low rates which it consequently en- joys for the transportation of its raw material do not affect its rights to reason- able and undiscriminatory rates and proper routing arrangements for the movement of its finished product. Cali- fornia Sugar Co. v. S. P. L. /.. & S. L. R. R.*, 19 I. C. C. 6, 9. (k) Complainant attacked the rate of lie on rock salt from Cuylerville, N. Y., to Detroit, Mich. The rate from Cuyler- ville to Chicago was 10c. Detroit ordi- narily takes 78 per cent of the New York to Chicago rate, and the rate on evapo- rated salt to Detroit was adjusted on that basis. For a period of one year the rate on rock salt to Detroit was made on such basis, and was afterwards with- drawn, leaving in effect the vate at- tacked. Defendant alleged greater com- petition at Chicago as justifying the lower rate to Chicago. HELD, in view of the well-established method of making rates in Central Freight Association terri- tory, Detroit was entitled to 78 per cent of the Chicago rate, or 7.8c. Reparation awarded. Delray Salt Co. v. Penn. R. R. Co., 18 I. C. C. 259, ?o0. (1) The fact th-tt goods could have been purchased at a different point from which a lower rate applied is no reason for the maintenf.nce of an unreasonable rate from that particular point. Willa- mette Pulp & Paper Co. v. M. P. Ry. Co., 18 I. C. C. 388. (m) On r.pples in carloads from Farm- ington, Pullman and Zumwalt, Wash., to Kenmave, N. D., and from Pullman, Wash., to Valley City, N. D., a rate of 75c was exacted. Some months prior to the shipments, the defendants agreed on a 60c rate between the points in question, but, o'a account of lining up the rates, the GOc rate was not made effective before the shipments in question moved. De- fen'iants admitted the exaction of the rate charged constituted unlawful dis- crimination, and offered to make repara- tion on the basis of GOc. The GOc rate was in effect at the time of the shipments from other points in the apple section in question to similar destinations in North Dakota. No evidence was offered of the unreasonableness per se of the rate exacted. HELD, without holding the rate unreasonable, the Commission found the same unjustly discriminatory. Reparation awarded. Stacy Mercantile Co. v. M. St. P. & S. Ste. M. Ry. Co., 18 I. C. C. 550, 551. (n) Complainant, miller at Detroit, Mich., attacked the rate on flour from Detroit to New York and New York points of 16c, and from Detroit to New England points of 18c, in view of the ex- lake rate on wheat from Detroit, Port Huron and similar points of 12i^c. Com- plainant's competitors were able to bring in wheat from Duluth to Detroit and ship the same at the 12i^c rate from De- troit to the East with a milling-in-transit privilege requiring the payment of VzC penalty, and could secure the transporta- tion of their product for 3c per 100 lbs. DISCRIMINATION, §9 (o)— (p) 263 less than complainant to New York points and for 5c less to New England points. About one-half of complainant's supply was winter wheat obtained from Michigan, Ohio, Indiana and points west of Chicago, and reaching his mill by rail. The other half was spring wheat brought by water from Duluth. He sold one-third of his flour locally at Detroit, one-third to southern destinations, and the remain- ing one-third to New York and New Eng- land points. The rate on flour from Chi- cago to New England points was 18.7c and complainant availed himself of this rate by paying a milling-in-transit penalty at Detroit. The local rate fro.u Chicago to Detroit was Cc, and on flour made from Chicago wheat complainant therefore ob- tained from Detroit to New England points a rate of 12.7c. Complainant was able also to substitute at Detroit the flour made from water-borne wheat from Ddluth, and to send the same forward from Detroit to New England at the rate of 12.7c. Out of 348 cars of flour shipped by complainant, some 263 were forwarded at the rate of 12.7c under transit billing. The ex-lake rate on wheat of 12.56 in question was the same as that from Buf- falo to New York on ex-lake grain, the latter being established by competition between the rail and water carriers on shipments from Buffalo to New York This 12.5c rate was applied by the car- riers from Detroit in order to induce the unloading of grain at Detroit instead of Buffalo. The rates on flour and grain from Buffalo to New York were identical and to withdraw this 12.5 rate would simply result in eastern millers getting their wheat by way of Buffalo. Ordi- narily, Detroit takes a rate 78 per cent of that from Chicago. Under the specific in-and-out rates in effect on wheat milled at Chicago, the flour rate to New England was 18.7c, and the wheat rate 18c. Com- plainant demanded that Detroit be ac- corded a rate equal to 78 per cent of this Chicago rate. In view of the substitution privileges enjoyed by complainant at De- troit, however, the granting of this de- mand by complainant would not have substantially lowered the Detroit to New England rate actually enjoyed by him. HELD, complainant was not unduly dis- criminated against under the adjustment attacked, in view of the privileges of mingl'ng water-borne and rail-borne wheat, and of substituting flour made from water-borne wheat i id shipping same out at the balance of the Chicago to New England through rate. David Stott V. M. C. R. R. Co., 18 I. C. C. 582, 587. (o) Complainant attacked the rates on bar, boiler, band and rod iron and steel from Terre Haute, Ind., to Louis- ville, Ky., and to Cincinnati and Day- ton, O., as unreasonable per se and as compared with the rates from Pitts- burgh, Cleveland, Chicago and St. Louis, Knoxville, Tenn., and New Albany, Ind. In 1901 iron and steel products took the sixth-class rate from Pittsburgh, Cleveland, Youngstown and Chicago. In 1903 the rate from these cities was advanced 10 per cent above sixth class, [n 1907 they were given a fifth-class rate. Up to 1907 Terre Haute enjoyed the same rates as these competing cities, but in that year the rates from Terre Haute were advanced to fifth class for a short period and then re- stored to 10 per cent above sixth class. Thus, from June 1, 1907, to August, 1909, Terre Haute enjoyed an advan- tage in rates to the points in question as compared with the other competing cities, the rates being from Terre Haute to Louisville 9^c, to Cincinnati 9c and to Dayton 10c. In August, 1909, the rate from Terre Haute to Louisville was advanced to 12i^c, to Cincinnati lli^c and to Dayton 12c. In March, 1910, these rates were voluntarily re- duced to the fifth-class scale uniformly in effect from all points of production, and were from Terre Haute to Louis- ville lie, and to Cincinnati and Day- ton lli/^c. HELD, the present rates were not discriminatory against Terre Haute, and while the maintenance of lower rates out of Terre Haute for some years raised a presumption of the unreasonableness of the rates attacked, in view of the fact that "^uch lower rates did not benefit the Terre Haute industries until the complainant had an advantage over its competitors in 1907, in reaching the markets in question, they were not shown to be unreason- able. Highland Iron & Steel Co. v. Vandalia R. R. Co., 18 I. C. C. 601, 603. (p) The distances from Alachua, Gainesville and Hawthorne, Fla., to Savannah, over the S. A. L. Ry., are, respectively, 207.9, 207.3 and 207.9 miles. Over the A. C. L. R. R. these distances are 234, 249 and 238 miles, respectively. The rates charged by both defendants on sea island cotton from these points to Savannah were, respectively, 39c, 40c and 45c. HELD, the rates over the 264 DISCRIMINATION, §9 (q) — (s) Seaboard Air Line were unjustly dis- criminatory against Gainesville and Hawthorne, and these points should take the Alachua rate of 39c, which is declared to be a reasonable rate for the future; that with respect to ship- ments over the Atlantic Coast Line the 40c rate from Gainesville, as com- pared with the 39c rate from Alachua, was justifiable on account of the longer haul, but that shipments from Haw- thorne should apparently not take a higher rate than those from Gaines- ville, no order being entered, however, with respect to that rate. Railroad Commissioners of Florida v. S. A, L. Ry., 16 I. C. C. 1, 4, 5. (q) Complainants, manufacturers of wire nails, woven wire fences and other wire products at Muncie and Kokomo, Ind., attacked the rates on these prod- ucts from there to Arkansas common points. Prior to 1907 defendants had established the Chicago-Cincinnati ter- ritory, and from there, including INIun- cie and Kokomo, for many years had maintained the same rate to Arkansas common points. Complainants estab- lished their plant while such rates were in effect and in reliance upon them. In 1907 defendants split their territory and charged 4c more from points east of the Illinois-Indiana line than from points west of it. Defendants also al- lowed in the territory west carload rates on less-than-carloads, in excess of car- loads. This privilege was denied to complainants. Complainants' competi- tors located at Joliet, De Kalb, Lock- port and Waukegan, 111., were thereby given an advantage. The initial roads from the Indiana points in question were not the same as the initial roads from the Chicago points in question, but both groups of roads united with the lines leading from St. Louis in mak- ing rates to Arkansas points from all the points in question. Defendants contended that there could be no un- just discrimination, because the same roads did not serve the same points. HELD, the rates and practices com- plained of were unduly discriminatory and should be corrected, and that un- just discrimination would arise despite the fact that the same initial carriers did not serve the same competing points, in view of the agreements made between all these carriers prior and subsequent to 1907. (Knapp, Comm'r, (Jissenting.) Indiana Steel & Wire Co. V. C. R. I. & P. Ry. Co., 16 I. C. C. 155, 160, 161. (r) Galva, .Canton, Springfield and Peoria, 111., formerly all took the Peoria group rate on agricultural implements to Missouri River points, the average distances of these cities from those points being approximately the same. The first three cities were later placed in the Mississippi River group, which took a rate of 3%c less than the Peoria rate. Complainants, manufacturers at Peoria, attacked that adjustment as un- duly discriminatory against Peoria. It appeared that Peoria enjoyed a rate on steel and iron of 2c and on lumber of Ic less than the other three points were obliged to pay, when shipped in to be used in the manufacture of agri- cultural implements, and that Peoria had a general advantage in rates on raw material, and also on shipments of agricultural implements to points east. HELD, the rates complained of were not unduly discriminatory. Avery Mfg. Co. V. A. T. & S. F. Ry. Co., 16 1. C. C. 20, 24. (s) Complainants, Indianapolis ship- pers, attacked the class and commodity rates from Indianapolis to St. Paul and Winona, Minn., group points as excessive when compared with rates from St. Louis to these points and as being unreason- able per se. The class rates from In- dianapolis to St. Paul were 81c, 69c, 51c. 35c and 29c, respectively, for classes 1, 2, 3, 4 and 5, and from Indianapolis to Winona were 76c, 65c, 48c, 32c and 26c for those classes, respectively. The class rates from St. Louis to St. Paul were 63c, 52i^c, 42c, 26c and 21c for said classes, respectively, and from St. Louis to Win- ona, 50c, 42c, 33c, 23c and 18c, respect- ively. St. Louis took 105 per cent of the Chicago-St. Paul rates. From St. Louis and Chicago to Winona the same rates applied. Complainants claimed that In- dianapolis should take 115 per cent of the Chicago rates to St. Paul and Winona, making the first class rate from Indiana- polis to St. Paul 69c, as against the Chi- cago rate of 60c, and the St. Louis rate of 63c, and from Indianapolis to Winona, 5714c, as against 50c from both Chicago and St. Louis. From Chicago to St. Paul is 409 miles, from St. Louis 584 miles, and from Indianapolis to St. Paul 592 miles. Under the first class rate attacked the per ton mile revenue from Indianapolis to St. Paul was 2.74c, from Chicago to DISCRIMINATION. §9 (t)— §10 (d) 265 St. Paul 2.93c, and from St. Louis 2.16c. To enable carriers running from Illinois points into Chicago to secure traffic des- tined to St. Paul and Winona in competi- tion with the direct St. Louis to St. Paul and Winona roads, it was necessary for the former carriers to meet the St. Louis rate on shipments originating at many- southern and eastern Illinois points. If the St. Louis-St. Paul rates were raised, traffic would be diverted to the Missis- sippi River route and to the steamer lines operating on the lakes from Chicago. 3n account of competition afforded by the lake lines from Chicago, it was necessary to protect St. Paul and Minneapolis as jobbing centers, that they be placed on ii parity of rates with Duluth. Rates from St. Louis to St. Paul were also subject to competition from the Atlantic seaboard by rail-and-water and all-rail routes. No lines ran from Indianapolis to Chicago and beyond via their own rails to St. Paul and Winona. Several through lines op- erated via their own rails from Chicago and St. Louis, respectively, to St. Paul and Winona. While the class rates from Indianapolis to St. Paul exceeded those from St. Louis by about 30 per cent, the rates on many commodities greatly ex- ceeded that percentage. HELD, the class rates attacked should not be disturbed, but defendants should make a general reduction on commodity rates from In- dianapolis to the points in question so they would not exceed by more than about 30 per cent the commodity rates from St. Louis. Indianapolis Freight Bu- reau V. C. C. C. & St. L. Ry. Co., IG I. C. C. 276, 280, 281, 282, 284. (t) For some 10 years prior to 1907, the rate on the products of wheat milled at Buffalo from Buffalo to New York did not exceed 10c, except during the sum- mer of 1903, when it was lOi/^c. During four of the seasons of this period it was 9c. In 1907 the rate was advanced to lie. Boston and New England points took a rate of 2c in excess of the Buffalo to New York rate, making the advanced rate from Buffalo to these points 13c. At the time of said advance the rate from Minne- apolis to New York of 25c was not dis- turbed. Minneapolis and Buffalo are strong competitors in the milling of spring wheat. Milling operations were at times conducted upon a margin of profit not exceeding 3c per barrel. Mills were established at Buffalo in reliance on the comparative rates from Buffalo and Minneapolis in effect before the ad- vance. HELD, the advance unduly dis- criminated against Buffalo in favor of Minneapolis and the Buffalo to New York rate should not exceed 10c, and the rate to Boston and New England points 12c. Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 I. C. C. 31, 34. §10. Encouragement of Own Territory. See Act to Regulate Commerce, II (j); Cars and Car Supply, §12 (bb). §29 (b), §30 (d); Discrimination, §4 (d); Equalization of Rates, §6 (j) ; Facilities and Privileges, §4 (b), (d), §21 (b), (d); Reasonable- ness of Rates, §2 (rr), §16 (L); Routing and Misrouting, §4 (ggg), §6 (b); Through Routes and Joint Rates, §7 (a), §9, §11 (a) (n), (x) ; Transportation, §2 (d), §12 (a). (a) No undue preference results from the fact that a carrier maintains lower rates from points on its own line than other carriers maintain on the same traffic from nearby points on their lines. Stonega Coke & Coal Co. v. L. & N. R. R. Co., 23 I. C. C. 17, 24. (aa) Market competition is a euphem- ism for railroad policy. The desire of a number of shippers to reach a market is a force to which the carrier may not yield unless it can establish clearly that the adoption of such a policy will not un- fairly discriminate against one commun- ity in favor of another, and will not pro- duce those results which the law was in- tended to destroy. Railroad Commission of Nevada v. S. P. Co., 21 I. C. C. 329, 367. (b) Within certain limits a railroad company is bound to protect its territory, and within those limits the Commission may consider rates and their effect upon movement of traffic. Receivers' and Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 458. (c) A carrier may not by reason of conducting a market place in Pittsburgh use its power as a common carrier to dis- criminate against or in favor of Pitts- burgh or any other community which it serves. Wilson Produce Co. v. Pa. R. R. Co., 16 L C. C. 116, 122. (d) Complainants, jobbers at Atlanta and other Georgia cities, attacked the rates on grain products and hay on ship- ments from Ohio and Mississippi River crossings and beyond to points in south- eastern territory, on the ground that the practice of extending the same rates to 266 DISCRIMINATION, §10 (e)— (k) less-than-carload as to carload shipments was unreasonable in view of the larger expense to the carrier of delivering the less-than-carload traffic. Under the rates attacked, the consumers and small deal- ers at Georgia and surrounding points were able to procure these commodities from Ohio and Mississippi River cross- ings and from Nashville as cheaply as the larger jobbers who brought in car- load shipments. To establish less-than- carload rates higher than carload rates would have the effect of compelling con- sumers and small dealers at Georgia and southeastern points to purchase from and pay the middlemen's profits to the large Georgia and southeastern jobbers, instead of obtaining directly their sup- plies at lower rates from Mississippi and Ohio River crossings and from Nashville. HKLD, that a railroad could not be per- mitted to adopt a system of rate making which enabled a large dealer to drive a small dealer out of the market; that the Commission could not act on the theory that the trade of a particular community was a vested right belonging to any par- ticular class in that community, espe- cially when so to do would result in the enjoyment of a privilege by that class at the expense of the community at large, and that since the effect of an order pre- scribing differentials on less-than-carload quantities would be to place a tax on re- tailers and consumers in order that job- bers in southeastern territory might realize a profit in competition with Nash- ville jobbers and at the expense of that community, such an order should be re- fused. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 595. (e) Formerly a through rate on salt was in effect from Washburn. Ws., to points on the Soo Line, west of Minne- sota Transfer, which placed Washburn and Duluth on an equal footing in com- peting for business. The Soo Line can- celed the through rate from Washburn, while maintaining the same rates from Duluth, and admitted that it did so be- cause it was unwilling to participate in traffic from Washburn, in competition with traffic which- it might originate on its own line, the purpose of the cancela- tion of the joint rate from Washburn being to encourage traffic from Duluth. The reasonableness of the former rate was not disputed. Complainant ex- pended large sums in establishing his salt plant at Washburn, at the time when the joint rate from there was in effect. HELD, the Soo Line was unduly discrimi- nating against Washburn and should re- establish the former rates. Delray Salt Co. V. C. St. P. M. & O. Ry. Co., 16 L C. C. 507, 511. (f) Railroads should not be allowed to so divide and diversify themselves by contract and traffic agreements as to work a practical discrimination. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 15 L C. C. 73, 77. (g) A common carrier in order to build up and foster industries on its own lines cannot lawfully refuse to carry the products of like industries located on connecting lines. Standard Lime & Stone Co. V. Cumberland Valley R. R. Co., 15 L C. C. 620, 625. (h) A higher rate on lumber shipped from southern territory to Des Moines over that shipped to Omaha and Council Bluffs cannot be justified on the ground that Omaha is "an important dumping ground" for lumber, where it appears that such dumping ground results from the difference in rates complained of. Greater Des Moines Committee v. C. Gt. W. Ry. Co., 14 I. C. C. 294, 297. (i) A carrier has no right to prefer one locality over another without some justifying reason. Corn Belt Meat Pro- ducers' Ass'n V. C. B. & Q. Ry. Co., 14 I. C. C. 376, 386. (j) Defendant's tariff provided a local rate on cottonseed into Fort Smith, Ark., with a provision that in case the ship- per employed defendant's road in haul- ing the manufactured product out, he should be entitled to a refund of a part of the rate into Fort Smith. HELD, such provision was unlawfully discriminatory. Memphis Freight Bureau v. Ft. S. & W. R. R. Co., 13 I. C. C. 1, 4. (k) Most mills in South Carolina, Georgia and Alabama wove cotton cloth from undyed yarns. The cloths were subsequently treated at dye works. Com- plainant's dye works were located at Covington, Ky., but for the purpose of the decision treated as located at Cin- cinnati. Its competitors were located at Clearwater, S. C, and Lanette, Ala. The rate on cotton piece goods from all Georgia and Alabama points to Chi- cago was 55c, to Cincinnati 49c. From South Carolina mills the rate to Chi- cago was 65c, to Cincinnati 59c. The local rate from Cincinnati to Chicago was 25c. Clearwater, located near the Georgia line, took the Georgia rate to DISCRIMINATION. §10 (I)— §11 (b) 267 Chicago. The rate from South Caro- lina mill points to Clearwater was 17c, and from milling points to Lanette, Ala., 8c, which rates, added to the rates to Chicago from these dyeing points, gave complainant's competitors at Clear- water an advantage of 12c and at Lanette of lie over the rates from mill- ing points to Cincinnati, plus the local from Cincinnati to Chicago. Complain- ant attacked this adjustment of rates as unjustly discriminatory in favor of Clearwater and Lanette. The rates to Chicago attacked were established upon a base rate to the Ohio River of 35c from Georgia and Alabama and 45c from South Carolina. The rate from the Ohio River was shrunk 5c, being 25c when the shipment was local, 20c when it was through. The lines leading up to the Ohio River received 35c for their through haul, and the lines from the Ohio River 20c, while on local busi- ness the lines to the river received 49c and those from the river 25c. The through rates to Chicago from southern mills were forced by competition with New England mills. The rates to Cin- cinnati were somewhat determined also by competition with New England mills. The lower rates to Chicago from points in question resulted in part from the lower rates prescribed from milling points to Clearwater and Lanette. De fendants, to encourage the establish- ment of dyeing works in the South, and to prevent the cloth from going to New England to be dyed, made rates from the mills to Clearwater and Lanette lower than the ordinary class rates. Despite the advantage in rates, com- plainant's competitors at Clearwater and Lanette did not appear to be espe- cially prosperous. HELD, defendants had the right to make rates so as to foster enterprises upon their own sys- tems, even though the result was to discriminate against other enterprises of a similar nature elsewhere, provided such discrimination was on the whole, as in the present case, not undue. Com- plaint dismissed. Reliance Textile & Dye Works v. S. Ry. Co., 13 I. C. C. 48, 54. (1) Tobico was constructed by com- plainant as an icing station some 690 ft. from the line of the Detroit & Mackinac Ry. Co., and was reached by a switch specially constructed for the purpose by that company, cars being sent out for the use of complainant a distance of 7 miles from Bay City by switch engines from there. Tawas was some 54 miles north of Tobico on this line. The rate on ice from Bay City to Toledo o/er the arand Trunk R. R. and the Michigan Central R. R. was 80c C. L., and $1.10 per ton from Bay City to Cleveland. The dis- tance from Bay City to Toledo was 148 miles and to Cleveland 261. From Tawas and Tobico to Toledo the rate was $1.10 and to Cleveland $1.50. Complainant's competitors were located at Tawas and it a point three miles south of Tobico. On shipments from the latter competing point, complainant's competitor was charged 80c to Toledo, provided the ship- ment moved from Bay City over the Grand Trunk R. R., otherwise a switching charge of $5 per car was assessed. No switching charge was made for service at Tobico. Complainant attacked this ad- justment of rates as unduly discrimi- natory in favor of its competitors. Com- plainant's industry at Tobico was the only one located at that point, whereas Tawas was a community of some importance. HELD, the rates complained of were not shown to be unduly discriminatory. Wag- ner, Zagelmeyer & Co. v. Detroit & Mac- kinac Co., 13 I. C. C. 160, 165. §11. Low State Rate. See Equalization of Rates, §5. (a) Section 3 of the act forbidding undue discrimination in favor of or against any person or locality applies to discrimination against interstate traffic, and the fact that a carrier's rates on interstate shipments are estab- lished by a state commission does not relieve that carrier of the duty to so adjust its rates that, as to interstate traffic, justice will be done between communities, regardless of state lines. Meredith v. St. L. S. W. Ry. Co., 23 I. C. C. 31, 41, 45. (b) The present relation of rates gives an undue preference to Texas cities, and effects an unlawful dis- crimination against Shreveport, and the carriers should cease and desist from charging higher rates on any commod- ity from Shreveport to Dallas or Hous- ton or points intermediate thereto than are contemporaneously charged by them for the carriage of such commod- ity to equidistant points from Houston or Dallas toward Shreveport. Meredith V. St. L. S. W. Ry. Co., 23 L C. C. 31, 47. 268 DISCRIMINATION, §11 (bb)— (k) (bb) The fact that the Texas State Commission has established such low rates on live stock from Texas points of origin to Fort Worth, Tex., that Fort Worth thereby gains an advantage as against the rates established from the same points of origin to Oklahoma City, Okla., by the Interstate Commerce Com- mission, which rates are higher than the low mileage scale prescribed by the Texas Commission, is not such undue discrimini- tion nor such a situation with which the Interstate Commerce Commission can properly deal. In Re Investigation of Un- reasonable Rates on Meats, 23 I. C. C. 656, 664. (c) On cattle from Texas points, Fort Worth, Tex., pays the Texas State Com- mission rates, while Oklahoma City, Okla., pays higher interstate mileage rates. The state rates were not made with intent to discriminate in favor of the Texas industry, but are part of a gen- eral schedule. Oklahoma City, however, suffers a disadvantage. HELD, that the discrimination is not undue and that the Interstate Commerce Commission has no power to deal with the situation, though it would be desirable if the same scale applied to both points. In Re Advances on Meats and Packinghouse Products, 23 I. C. C. 656, 664. (cc) Shippers from Atlantic seaboard territory are entitled to reasonable rates, and if the establishment of such reasonable rates by the Commission de- velops unjust discrimination or unreason- able rates from intermediate or related points, the law casts upon the carriers the obligation of providing reasonable and non-discriminatory rates from such intermediate or related points. In Re Advances by Carriers Operating Be- tween the Mississippi and Missouri Rivers, 21 I. C. C. 546, 549. (d) In a proceeding attacking a rate adjustment between various cod- petitive coal fields to a large number of consuming centers, if a purely state rate is involved to such centers, it is proper for the Commission to note tlmt discrimination exists, but it has no jurisdiction to enter an affirmative order. Andy's Ridge Coal Co. v. Soutn- ern Ry. Co., 18 I. C. C. 405, 407. (e) Complainants attacked the rela- tive rates on coal from the Coal Creek field, Tennessee, as against the Appala- chia fields, Virginia, to Nashville, Tenn. From the Appalachia field to Nashville the distance was 431 miles, and the rate $1.45. On coal from Coal Creek to Nash- ville — distance, 208 miles — the rate was $1.25. The rate used by complainants is a state rate with a movement from Coal Creek to Nashville, being entirely within the state of Tennessee. HELD, the pres- ent adjustment of rates is discriminatory, an'd that no rate should be maintained from Coal Creek to Nashville which is not at least 45c less than the rate main- tained from the Appalachia, but that while it is proper to note the discrimina- tion that exists, the Commission has no jurisdiction to require its removal in- asmuch as an intrastate rate is involved. Andy's Ridge Coal Co. v. S. Ry. Co., 18 I. C. C. 405, 407. (f) The Commission cannot remove discrimination by reducing state rates, Andy's Ridge Coal Co. v. S. Ry. Co., 18 I. C. C. 405, 407. (g) There is no discrimination where a lower state rate is forced by a state commission and appears to be unrea- sonably low. Saunders & Co. v. South- ern Express Co., 18 I. C. C. 415, 422. (h) Whether legislation should be en- acted to prevent discrimination through the undue lowering of rates by state com- missions is a question for the legislature and not for the Interstate Commerce Commission. E. E. Saunders & Co. v. Southern Express Co., 18 I. C. C. 415, 424. (i) Where a carrier serves two com- munities, similarly situated, by hauling the same traffic under similar conditions from a point of origin to destinations in the same state and also to the same destinations from an interstate point of origin it is not altogether clear that exist- ing legislation affords redress against a discrimination, as between the two points, when resulting from an order by a state commission. Saunders & Co. V. S. P. Co., 18 I. C. C. 415, 422. (j) The Commission should exercise care to prevent undue discrimination as the result of any conclusion reached with respect of rates to any particular point. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 18. (k) Defendants' rate on bituminous coal from the Appalachia district, Vir- ginia, to Bristol, Tenn., was 85c when destined either for steam or domestic use for a haul of G9l^ miles. Defendant's rate from Middlesboro to Knoxville was 50c and 70c, respectively, on steam and DISCRBIINATION, §12 (a)— §13 (a) 269 domestic coal. The rate from Middles- boro to Knoxville was controlled by the competition of coal mines at Coal Creek, 31 miles distant from Knoxville, from which the state commission had fixed rates to Knoxville of 40c and 60c, re- spectively, on steam and domestic coal. HELD, said facts did not show un- just discrimination against Middlesboro. Board of Bristol, Tenn., v. V. & S. W. Rv. Co., 15 I. C. C. 453, 455. IV. REMOVAL OF DISCRIMINATION. See Cars and Car Supply, III C; Switch Tracks and Switching, §3 (d). §12. Reduction of Rates. See Equalization of Rates, §8 (d), (dd); Evidence, §66 (b); Long and Short Hauls, §5 (ff ) ; Reasonable- ness of Rates. §2 (zz), §16 (dd), §25 (a); Tap Lines, §9 (k); Through Routes and Joint Rates, §15 (nnn). (a) Relief against discrimination due to a rate adjustment cannot be denied on the ground that other points simi- larly situated might thereby le induced to ask for like relief. Chamber of Com- merce of Newport News v. S. Ry. Co., 23 I. C. C. 345, 356. (b) The Commission would not hesi- tate to reduce rates because of the threat of a reduction from carriers serving com- peting localities if unreasonableness and discrimination were established. Bitumi- nous Coal Operators v. Penn. R. R. Co., 23 I. C. C. 385, 391. (c) The fact that reduction of an unreasonable rate or the correction of an unjust discrimination will require reduc- tions or corrections at other points can- not be accepted as a valid defense of an unreasonable rate or an unjust dis- crimination. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 101. (d) Interveners insisted that to make order prayed for would make a discrimi- nation against them. The matter of ad- justing rates relatively to meet conditions that will arise after the reduction herein- ordered is made rests primarily with the defendants. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. 225, 229. » (e) If in this case the complainant labored under some form of discrimina- tion, the effect of which v.as apparent, or if these rates were so high as to un- duly burden the movement of this traffic, it would be the Commission's duty to in- terfere, even though that did involve a reduction of rates, but where, as in this proceeding, the effect of no discrimina- tion is pointed out, where the traffic moves with the greatest freedom, where the only result of the acticn asked for would be to somewhat reduce the rate paid by the complainant, the application must be denied. Union-Made Garment Mfrs'. Ass'n v. C. & N. W. Ry. Co., IG l. C. C. 405, 409. (f) It is not within the authority or power of the Commission to remove dis- crimination except through a reduction in rates, which necessarily operates to reduce revenues. Kindel v. N. Y. N. H. & H. R. R. R. Co., 15 I. C. C. 555, 560. (g) Where the Commission orders a reduction of the rate on petroleum from Chicago to Omaha, it will order no re- ductions to points in the neighborhooi of Omaha, no evidence being submitted as to those points, but the Comm'ssion will indicate that defendants should ad- just their rates to those points in ac- cordance with the new Chicago to Omaha rate, and upon their failure so to do, complainant may file a new complaint. National Petroleum Ass'n v. C. M. & St. P. Ry. Co., 14 I. C. C. 287, 290. §13. Disturbance of Settled Adjustment. See Equalization of Rates, §8 (d), (dd) ; Reasonableness of Rates, §106 (c). (a) Complainant asked that the present rates on rough rice from Texas points to New Orleans be reduced so that they would be lower than the clean rice rates, to enable New Orleans millers to com- pete with Texas millers in the purchase of rough rice from Texas producers. It was alleged that discrimination exists as against the New Orleans millers by mak- ing the rough rice rates to New Orleans as high as the clean rice rates. It ap- peared that rough rice was only about two-thirds as valuable as clean rice; that there is little loss of damage in trans- portation, and that as to all rates from Louisiana points to Louisiana mills and from almost all Louisiana points to Texas mills, and Arkansas points to Louisiana and Texas mills, the rough rice rates are lower than those on clean rice. On the other hand, defendant showed that the rough rice rates are reasonable per se in that these rates are generally higher than on sugar. Yet the rates in question are actually lower than the correspond- ing rates on sugar. Furthermore, it was shown that whereas the clean rice rate from Houston and Texas points east 270 DISCRIMINATION, §13 (b)— (d) thereof to New Orleans (from 257 to 359 miles) is 15c, the rate on clean rice fixed by the Louisiana commission for points over 125 miles to New Orleans (as are practically all Louisiana points) is 14c. Thus Houston, Tex., 359 miles from New Orleans, paid a 15c rate or 8.3 mills per ton mile, while Crowley, La., 167 miles from New Orleans paid a 14c rate or 16.7 mills per ton mile. It appeared that in 1910 there were shipped from Texas points to New Orleans 176,874 bags of rough rice and 128,976 bags of clean rice, and that about 180,000 bags of rough rice are shipped annually from Arkansas to New Orleans, although the rate is 20c. HELD, the rates complained of are part of a rate adjustment which has been ar- rived at after years of competition be- tween markets, and that any change in the present rate would disturb the whole rate situation; that in view of all the facts and circumstances the rates complained of are not unduly discriminatory. Com- plaint dismissed. New Orleans Board of Trade Ltd. v. G. H. & S. A. Ry. Co., 23 L C. C. 210. (b) Complainant attacked all rates from Vickburg, Miss., to points in north- eastern Texas, as being unduly dis- criminatory compared with rates to such points from St. Louis, Memphis, New Orleans and Galveston. Interveners at Memphis asked that the rates from Mem- phis be lowered. Complainant was prin- cipally interested, as a Vicksburg jobber, in the sale of bagging and cottonbale ties to Texas points. Cotton bagging came from the Atlantic seaboard via St. Louis, or from foreign ports via New Orleans and Galveston, and the rates to Missis- sippi River crossings and beyond were influenced by this water competition. Cottonbale ties came mostly from Pitts- burgh and the selling price was the Pitts- burgh price, plus the through rate to the point of consumption. Complainant wished to obtain rates out of Vicksburg that would enable it to compete in north- eastern Texas after stopping the ties in Vicksburg. The rates from Vicksburg v/ere materially higher per ton mile than from St. Louis, Memphis or Galveston. The rates to Texas points generally were adjusted with respect to Mississippi River crossings extending north and south more than 700 miles, and could not be consid- ered solely from the standpoint of mile- age. New Orleans, Memphis and St. Louis each had several competing direct lines to Texas, whereas Vicksburg had only one line extending in that direction. The interveners at Memphis sought a re- duction of rates on the same general theory as complainant. HELD, to grant the demands of the complainant or the interveners would be to disrupt the group- ing of Texas common points, or to re- arrange the whole fabric of rates from the Mississippi River. Complaint dis- missed. Williams Co. v. V. S. & P. Ry. Co., 16 I. C. C. 482, 485, 487. (bb) While it is proper to consider the effect of a decision upon the general rate adjustment applying over a wide scope of territory, rates which discrimi- nate against one locality on a particular road cannot be justified on the ground that they are part of a general scir3me adopted by several roads entering the same territory and supplying coal from different and unassociated districts. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 294. (c) Unreasonable rates or undue and unjust discrimination should be corrected even if long-standing adjustments must be disturbed, but where no rate is alleged to be unreasonable, and the discrimina- tion alleged and complained of is between an intermediate or primary market which naturally wishes to handle grain and for- ward it for export or to the consuming territory, and direct shipment of the grain from points where it is grown to export points and consuming territory under lower transportation charges, undue or unjust discrimination cannot be held to arise. Kansas City Transportation Bu- reau V. A. T. & S. F. Ry. Co., 15 I. C C. 491, 498. (d) Complainant attacked the class rates of 25c, 22c, 19i^c, 12y2C, 9i^c and 8c, from Indianapolis to Cincinnati, Jeffer- sonville and other Ohio River points and those of 311^0, 27c, 2iy2C, 14c, llVgC and 9c from Indianapolis to Chicago on classes 1, 2, 3, 4, 5 and 6, respectively. The class rates between Chicago and the Ohio River points in question were 40c, 34c, 25c, 17c. 15c and 12c, respectively. The distance between Indianapolis and Ohio River points is approximately 40 per cent, and between Indianapolis and Chi- cago 60 per cent of the average distance of 300 miles between Chicago apd the Ohio River points. Complainant de- manded that the rates from Indianapolis to Ohio River points be made 50 per cent, DISCRIMINATION, §13 (e)— §14 (a) 271 and from Indianapolis to Chicago 70 per cent of the Chicago to Ohio River points rates, 10 per cent being added in each case to the percentage which the Indiana- polis mileage in either direction is of the total distance between the termini. Un- der the rates attacked the percentage in the differences between the Chicago and the Indianapolis to Ohio River rates varied with the different classes, whereas the rates on all classes from a point in- termediate to Chicago and New York to Chicago on New York bore a uniform per- centage to the Chicago and* New York rate. The class rates between Chicago and New York, 912 miles, yielded a per ton mile revenue of 1.64c, 1.42c, 1.1c and 7.7, 6.6 and 5.5 mills; between Pittsburgh and New York, 444 miles, 2c, 1.76c, 1.35c and 9.5, 8.1 and 6.8 mills; between Buf- falo and New York, 410 miles, 1.9c, 1.6c, 1.36c and 9.2, 7.8 and 6.3 mills for the first six classes respectively. The rates attacked between Indianapolis and Cin- cinnati- Jeffersonville, 110 miles, yielded 4.54c, 4c, 3.54c, 2.27c, 1.72c and 1.45c; be- tween Indianapolis and Chicago, 180 miles, 3.5c, 3c, 2.4c, 1.55c, 1.28c, and Ic, and between Chicago and Cincin- nati-Jeffersonville, 300 miles, 2.66c, 2.26c, 1.67c, 1.13c, Ic and 8 mills for the six classes respectively. The rates attacked were constructed as nearly in accordance with the Central Freight Association dis- tance scale as possible, giving considera- tion to the fact that on the small lines of which defendants were composed it was necessary to recognize to some extent the influences of the rates formerly exist- ing on these lines. HELD, while an align- ment on a universal percentage basis be- tween the classes might bring about more logical and consistent adjustment, the adjustment attacked being the outgrowth of actual conditions and the result of a gradual development was not unjustly discriminatory, nor was it shown to yield unreasonable earnings. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 509. (e) Pauls Valley and Ardmore, Okla., and Gainesville, Tex., are on defend- ant's line, Gainesville lying south of the others. Defendant permitted col- ton originating north of Pauls Valley and Ardmore to pass through these cities to Gainesville for compression, but did not permit cotton, originating south of Gainesville to move through it to Pauls Valley and Ardmore for compression. Complainant compressors at Pauls Val- lay and Ardmore attacked this rule as unjustly discriminatory in favor of Gainesville. Practically all the cotton produced in the territory in question moved to the gulf ports. For the Com- mission to correct the rule complained of would not assist complainants unless it ordered that cotton originating at points south of Gainesville and com- pressed at Pauls Valley and Ardmore should be allowed to take the rate in effect from said points of origin to the gulf points, instead of the rate from Pauls Valley and Ardmore to these ports. To allow this would result in violating the almost invariable rule of carriers that, where there is a back haul to the compression point from which there is a higher rate to final destination than from point of origin, the higher rate should apply. On ship- ments to gulf ports, Ardmore and Pauls Valley took higher rates from Gaines- ville and points south thereof. HELD, no unjust discrimination was shown. Chickasaw Compress Co. v. G. C. & S. F. R. R. Co., 13 I. C. C. 187, 190. (f) Where an industry has been re- quired to pay for a long period of time rates of freight on raw material which bear certain relations to rates charged to competitors at other points, a marked change in such relations of rates in favor of competing industries cannot be made without an attendant presump- tion of undue discrimination. Detroit Chemical Works v. N. C. Ry. Co., 13 I. C. C. 357, 362. V. PROCEDURE AND EVIDENCE. See Procedure Before Commission, §2 (m), §11 (t), §13 (m); Repara- tion, §23 (a), (d). §14. Burden of Proof. See Commodities Clause, II (g); Evi- dence. I; Ligliterage, §4 (a); Long and Short Haul, §12 (2) (g). (a) In the purchase of grain in the states of South Dakota, Nebraska, Min- nesota and Iowa, Sioux City comes in direct competition with Omaha, Kansas City and Minneapolis, but principally with Omaha. These competitive mar- kets pay the local rate inbound from point of production, and proportional rate out to the various markets of dis- tribution, including priacipslly Minne- apolis on wheat and Chicago and south- eastern territory on coarse grains. Sioux City, however, has no proportional rate south bound to the same destinations. 272 DISCRIMINATION, §14 (b) and because of the high level of its local rates in and out is restricted to the use of joint rates from points of production to ultimate destination, with the privilege of stopping the grain at Sioux City for the purpose of cleaning, milling or otherwise treating. Omaha has a back haul privilege to the extent that it can reach out in competition with Sioux City and other markets in the direct line of flow of the grain from point of production to ultimate destination. This privilege, however, applies to but a small tonnage. The rates at Kansas City and Omaha have been established through competition, which has not been asserted at Sioux City. Complainants asked the establish- ment of reasonable local rates from the states named to Sioux City, and of proportional rates out with reason- able relation to the proportional from Omaha to the markets named. The suggested local rates and proportionals out would in many instances aggregate higher through charges on South Da- kota grain than the present joint rates with Sioux City transit. Sioux City desires the proportional rate in order to become a primary grain market, i. e., the privilege of accumulating grain in large quantities from nearby territory in advance of actual sales and knowl- edge of ultimate destination. The joint rates for transit were not complained of as such, the proportional rates being asked for in aridlrion. HE.LD, it should clearly appear that Sioux City labors under an unreasonable rate disadvan- tage in comparison with Omaha, as well as that the conditions of trans- portation are substantially similar at the respective markets, before rate con- ditions over a large territory can be seriously disturbed, as would be the case if the prayer of the petition were granted. Competition of controlling force cannot be ignored by the Com- mission in determining whether an ad- vantage in rate at the competitive point is undue or is one not chargeable to the carrier because involuntarily made. Omaha's natural advantage of location, with respect to the Southeast, cannot be controlled by any lawful order of the Commission, any more than Sioux City's similar advantage with respect to South Dakota grain can be equalized with Omaha. The only substantial ad- vantage to Omaha established by the record is the back haul privilege, but this applies to such a small tonnage that it cannot be made the basis for relief. Sioux City by transfer of tran- sit balances has the same choice of markets as Omaha on all grain that does not involve a back haul, and this does not subject Sioux City to such general disadvantage as to warrant an order in disturbance of the whole west- ern fabric of rates on grain, with sub- stantial loss of revenue to the carriers, for the purpose, not of correcting any present substantial injustice on the great bulk of contiguous Sioux City grain, but of upbuilding the Sioux City market, to the extent that proportional rates might accomplish that result; however, the local rates in issue to Sioux City are unreasonable and un- justly discriminatory. Certain of the carriers admit that these rates are too high and should be readjusted. The respective parties should promptly sub- mit a proposed schedule to the Com- mission for its consideration and ap- proval by June 15, 1912. Sioux City Terminal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 107, 109. (b) Complainant attacked the rate on bituminous coal from the Clearfield district of Pennsylvania to South Am- boy, N. J., of $1.55 per gross ton. The Latrobe district, which adjoins the Clear- field district on the west, was given the same rate, and the Greensburg district, which lies immediately west of the Latrobe district, took a rate 10c higher ,than the Clearfield district. From the tonnage center of the Clearfield district to South Amboy is 345 miles; from the Greensburg district 395 miles. The La- trobe district is from 339 to 374 miles from South Amboy. The complainant (Associa- tion of Clearfield Operators) demanded that the territory designated as the "La- trobe subdistrict" be incorporated in the Greensburg rate zone, and that the Clearfield district be given a rate per ton mile to South Amboy not higher than that now extended from the Greensburg district. This would result in a reduction in the Clearfield rate, complainant contended, of lie per ton. No evidence was given as to the rea- sonableness per se of any rates except- ing by way of comparison, the defend- ant contending that a reduction would not benefit Clearfield, while the com- plainant alleged that it could not oper- ate at a profit under the present rates because of the low cost of production of coal in Maryland and West Virginia DISCRIMINATION, §14 (c)— §15 (b) 273 fields, with which it competed, and that Its freight rate must be such that it could sell its coal in the available mar- kets in competition with other coals reaching such markets. It appeared that competition with Latrobe and Greens- burg is almost negligible, owing to the great dissimilarity between these coals and that of Clearfield, and the small output from those districts. It appeared that if the rates to tidewater from the Clearfield district were reduced carriers serving southern districts would reduce their rates to the same destinations, and that the result of this adjustment would be that the Clearfield operators would not be benefited, but th^t the Latrobe and Greensburg operators would be driven from the eastern markets by competition from the South. HELD, it is not the function of the Commission nor that of the carrier to equalize economic conditions. It fairly appears that the profits made by the Clearfield operators upon tidewater coal are flight, and if rate- should be made so as to sustain an industry which, because of intense competition within itself, or becajse of local disadvantages, yields but slight profit, the present rate should bo re- duced, but the law does not permit the Commission to fix a reasonable rate solely upon this ground. The Commis- sion would not hesitate to reduce Uiese rates because of the threat of a reduc- tion from competing fields by other car- riers if unreasonableness were estab- lished and if the case had been pre- sented upon the ground of a discrimina- tion between competing fields upon the line of the carrier defendant. But no showing has been made as to the rea- sonableness of the rates themselves, and the Commission cannot take from the defendant lie a ton and give it to the operators as a profit upon their coal without a showing that the railroad whose rates they attack is responsible either for the adjustment which exists between the Clearfield rates and the rates from competing localities in West Virginia, or that it is imposing an un- reasonable charge for the Clearfield service, • Complaint dismissed. Bitu- minous Coal Operators v. P. R. R. Co., 23 L C. C. 385, 391, 392. (c) Complainant merchants and manufacturers of Des Moines, la., at- tacked the rates from Des Moines to points to the south &nd west lying in territory on the east and west of the Missouri River as unreasonable and dis- criminatory, as compared with the rates accorded to St. Paul and St, Louis and cities lying intermediate on the Missis- sippi River, and as compared with rates from St. Joseph and Kansas City, taken as typical competing points. The sta- tistics submitted by complainants were not set out in full in the opinion. Com- plainants took the tariffs of most of the carriers whose lines run east and west and north and south through the territory between St. Paul and Chicago on the north and St. Louis and St. Joseph on the south. Regard- less of any direct connection of the lines with Des Moines, they selected rates and distances between certain points, and made comparisons with the rates attacked. In making their com- parisons they assumed that the trans- portation was made under substantially similar circumstances and conditions, and ignored the existence of competi- tion of rail and water carriers and of water transportation. They demanded that the rates from Des Moines to the Missouri River, used in making up the rates to the destinations in question, be about 60 per cent of the rates from the Mississippi to the Missouri River. HELD, the evidence submitted was in- definite and not sufficient to warrant the Commission in ordering a reduc- tion. The complainant must prove by competent evidence that the rates at- tacked are unjust, unreasonable or dis- criminatory, or present to the Commis- sion facts sufficiently clear and strong to justify the Commission in making an investigation of its own motion in the public interest. Greater Des Moines Committee v. C. G. W. Ry. Co., 18 I. C. C. 98, 104. §15. Showing of Damage. (a) Where the payment of rebates to a competing shipper in another terri- tory does in fact do plaintiff no harm, he cannot recover damages based on such payments in a suit for unjust dis- crimination against the carrier. Mit- chell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed. 403, 411. (b) Discrimination can only injure a complaining shipper if his rival has been given an unfair advantage in the same market, although different points of destination may belong to the same market. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed. 403, 411, 412. 274 DISCRIMINATION. §15 (c)— §16 (c) (c) Where a shipper has himself enjoyed an unlawful rate, he cannot re- cover for unjust discrimination against a carrier for giving a competitor on like shipments a lower rate. Penn. R. R. Co. V. International Coal Mining Co., 173 Fed. 1, 9. (cc) Damages may be awarded for the difference between the rate paid by com- plainant and the lower rate charged a favored shipper. Meeker & Co. v. L. V. R. R. Co., 23 I. C. C. 480, 481. (d) Complainant asked reparation on a rate of lie per 100 lbs. for coarse salt in bulk in carloads from Retsof, N. Y., to Detroit, Mich., to the extent that it exceeded the present rate of 7.8c per 100 lbs. Complainant rested its case on the decision of the Commis- sion in Delray Salt Co. v. P. R. R. Co., 18 I. C. C. 259, where the Commission held that the rate on coarse salt in bulk from this district to Chicago should be scaled to Detroit on the 78 per cent basis, which defendants did, establish- ing the present rate. In the Delray case the complainant there complained of the 10c rate to Chicago granted to this complainant, which kept it from competition in markets beyond Chicago. Complainant in this case only competed in Detroit with salt moving from Cuy- lerville, N. Y., which takes the same rate as complainant's salt from Retsof, N. Y. HELD, that complainant was not injured under the circumstances by the Detroit rate, as its competitors were paying the same. No opinion expressed as to the reasonableness of the rate to Detroit per se. Complaint dis- missed. International Salt Co. v. Penn. R. R. Co., 20 I. C. C. 539. (e) Complainant, manufacturer of threshing machines and engines, was lo- cated at Hopkins, Minn., a point three miles south of the city limits of Minne- apolis and about eight or nine miles from the Minneapolis yards of the defendant carriers. For some five years defendants extended to complainant the Minne- apolis rate on shipments from Hop- kins, thereby absorbing the switching charge from Hopkins to Minneapolis. Defendants canceled this arrangement with respect to shipments on their lines to non-competitive points. Com- plainant asked that defendants be com- pelled to restore the arrangement for- merly in effect. Other competitors of complainant located in Minneapolis were assessed switching charges of from $1.50 to $3, according to the dis- tance of their plants from the yards of defendants. The switching ehar'.?e of $5 assessed against complainant cov- ered a haul of two cars to and from Hopkins and appeared to be a reason- able charge, judged by switching charges generally. HELD, complainant's demand should be denied, since to grant the same would result in discrimina- tion against complainants' said competi- tors. Minneapolis Threshing Machine Co. v. C. St. P. M. & O. Ry. Co.. 17 I. C. C. 189, 190. (f) In cases of damages for decay and other loss resulting from discrimination, for delaying fruit in transit, the Com- mission may ascertain whether the dis- crimination alleged actually occurred. Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 367. 5I6. Actions in State Courts. See Supra, §1 (q); Cars and Car Supply, §16 (a); Courts, §1 (h), V, §11 (a), (m), (aa), (bb). (a) Where the plaintiff, in a suit for excessive charges resulting in unjust dis- crimination, does not rely upon the In- terstate Commerce Act, but bases his claim on common law principles, an ac- tion for such recovery may be brought in a state court, although the shipments in- volved were made across state lines. M. K. & T. Ry. Co. v. The New Era Milling Co., 79 Kan. 435, 448, 100 P. 273. (b) In an action in a state court for unjust discrimination, a complaint alleg- ing that the carrier under like circum- stances and conditions hauled freight for certain other persons at its scheduled rate and falsely and fraudulently repre- sented the contrary to plaintiff does not state a cause of action either at common law or under the Interstate Commerce Act, for in both cases it must be shown t^hat the unjust discrimination injured the shipper in his trade or business. Lilly Co. V. N. P. Ry. Co. (Wash., 1911), 117 P. 401, 403. (c) In an action in a state court for unjust discrimination, the complaint does not state a cause of action where it neither alleges that the carrier has not 'complied with the requirements of the fnterstate Commerce Act with reference to filing of rates nor alleges that by the rate charged it exceeded the rate shown In the schedule. Lilly Co. v. N. P. Ry. Co. (Wash., 1911), 117 P. 401. 402. DISCRIMINATION, §16 (d)— DIVISIONS, §1 (rt) 275 (d) The common law gives a shipper a right of action against a common car- rier for a discrimination in freight rates between the shipper and another simi- larly situated, whenever the effect of th-c discrimination is to injure the shipper in his trade or business. Lilly Co. v. N. P. Ry. Co. (Wash., 1911), 117 P. 401, 402. §17. Reparation. See Reparation. §2 (f), (m), (n), (00), (w), (bb), §12 (a), §14 (b), §16 (eee), §18 (c). (d). DISTANCE TARIFF. See Tariffs, §7 (bbbb), §14 (k). DIVISIONS. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. PUBLICATION AND TARIFFS. §2. Obligation to file. in. AGREEMENTS FOR DIVISIONS. §3. Computation. §4. Inability to agree. §5. Reductions. §6. Right to divisions. §7. As evidence. IV. LEGALITY. V. REASONABLENESS. CROSS-REFERENCES. See Advanced Rates, §18 (10): Allow- ances, §12 (2) (cc) ; Through Routes and Joint Rates. §14. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Allowances, §14 (i); Special Contract, §4 (1) (m); Tap Lines, §2. (a) Complainant shipped a carload of syrup from St. Paul, Minn., to Reno, Nev., and alleged that the division re- ceived by the defendant of the joint rate was unjust and unreasonable. Other carriers than defendant participated in the movement, and were not made par- ties defendant. HELD, the division of a joint rate is a matter for agreement among the participating carriers, and is not subject to review by the Commission upon complaint of the shipper. It may, under the discretion of the Commission. be considered as evidence bearing upon the reasonableness of the rate. If the joint rate is attacked, there is a non- joinder of the proper parties defendant. If the division itself is attacked, the issue raised is not within the jurisdiction of the Commission. Complaint dismissed. Reno Grocery Co. v. S. P. Co., 23 1. C. C. 400. (aa) It is not clear that the Commis- sion has jurisdiction to deal with divi- sions under a rate not fixed by the Commission, but that question is not decided. In Re Wharfage Charges at Galveston, 23 I. C. C. 535, 546. (b) It has often been said by the Commission that the law has no con- cern with division of rates which carriers make by agreement with each other, but this principle has very decided limita- tions. If a railroad is a shipper, or is owned by a shipper, or is so linked up with a shipper that a division of a rate means a rebate or a discrimination in favor of or an advantage to shipper, the Commission may properly look into the nature of the service which the carrier gives and the division which it receives. In Re Divisions of Joint Rates on Coal, 22 L C. C. 51, 53. (c) The practice of carriers allow- ng to shippers furnishing them with com- pany material their unpublished and un- filed divisions of joint rates beyond a given junction point is condemned. Beekman Lumber Co. v. M. C. R. R. Co., 21 L C. C. 276, 278. (d) With respect to the transporta- tion of persons and property by ra'l, the Act has not undertaken to specify in terms what shall for the purpose of that statute be considered to be a common carrier, but has proceeded upon the foundation of the common law as to pub- lic callings. It is not therefore within the authority of the Commission to pro- nounce any carrier by rail not to be in fact or in law a common carrier, if by the tests and principles of the common law, coupled with such requirements as may have been imposed by constitutional or legislative authority, it would be held to be such. The right of such a carrier to participate in through routes and joint rates and share in the earnings of such rates with others is a wholly different question, and one clearly within the pur- view of the statute and under the juris- diction and control of the Commission as expressly provided in the Act. The pur- pose of the Act in this respect must be fulfilled by action appropriate to the end n view and at the same time effective to prevent unjust discrimination in any form, enforcing reasonable requirements and limitations in respect to the estab- lishment of through routes and joint rates and the sharing of the earnings thereunder consistently with all other provisions of the statute in such man- 276 DIVISIONS, §1 (e)— §3 (e) ner as will result in substantial justice to all the parties in interest and the observance of the standards of the law in the public interest. Mfrs.' Ry. Co. v. St. L. I. M. & S. Ry. Co., 21 I. C. C. 304, 312, 313. (e) The Commission will determine amount of divisions in case of failure of defendants to agree among themselves. Germain Co. v. N. O. & N. E. R. R. Co., 17 I. C. C. 22, 25. (f) If defendants are unable to agree upon the manner of constructing the rates herein ordered, or upon the divi- sions of such rates, the Commission will enter such supplementary order as may be necessary. Farmers' Co-operative and Educational Union v. G. N. Ry. Co., 17 I. C. C. 406, 412. (g) The fact that the Rock Island system reaches other primary grain markets may fairly be said to give it cer- tain equities in the adjustment of the divisions of any through rates that it may establish under an order of the Com- mission. Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co., 15 I. C. C. 460, 467. II. PUBLICATION AND TARIFFS. §2. Obligation to File. (a) Where a division of a rate is to be imposed upon an incoming transit shipment, and the balance of the rate is to be imposed upon a different outgoing weight, the divisions should be plainly published in the tariff containing such transit application. Beeknmn Lumber Co. V. M. C. R. R. Co., 21 I. C. C. 270, 279. (b) Divisions of a joint rate are sub- ject of agreement between the parties thereto, but each is bound by law to col- lect and retain neither more nor less nor different compensation than its estab- lished divisions. In Re Restricted Rates, 20 L C. C. 426, 429. (c) Divisions of joint rates are ordi- narily not published and are subject to change by the mutual agreement of car- riers. In Re Restricted Rates, 20 I. C. C. 426, 429. (d) The Commission can always re- quire the tiling of divisions, and a joint rate under agreed divisions definitely fixes the lawful earnings of parties to that rate. In Re Restricted Rates, 20 I. C. C. 426, 432. III. AGREEMENTS FOR DIVISIONS. §3. Computation. See Passenger Fares and Facilities, §14 (h); Reparation, §19 (f), (h); Routing and Misrouting, §10 (n). (a) In the adjustment of interline accounts between carriers an expen- sive bridge is ordinarily considered as constructive mileage, and the division of joint rates made upon that basis. Norman Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 239, 247. (b) Upon a dispute between carriers as to the proper divisions of joint through rates. HELD, a mileage pro rata basis of divisions would divide the earnings according to the service actu- ally performed by each carrier. This method inferentially approved, rather than an arbitrary basis of division which would ignore differences in the length of the haul. Stacy & Sons v. O. S. L. R. R. Co.. 20 I. C. C. 136, 139. (c) In fixing a division between car- riers of joint rates ordered to be estab- lished, section 15 of the Act implies that it is the duty of the Commission to take into consideration all the cir- cumstances and equities fairly affecting their several interests, and precludes the idea that the divisions must be ad- justed on a mileage or any other fixed basis. Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. 364. (d) Where a carrier not only fur- nishes local markets reached by no other road, but also serves a produc- ing territory ample to supply the needs of those markets, no division can in justice be made that does not fully protect its revenues so far as that can be done reasonably and without alto- gether overlooking the earnings of its connections, or withdrawing from pro- ducing shippers or consumers their right to the transportation service at reasonable rates. Star Grain & Lumber Co. V. A. T. & S. F. Ry. Co., 14 I. C. C. 364. (e) Complainant, a short line rail- road, carried traffic between La Salle, 111., and La Salle Junction, 111., &V2 miles, making connections at the lat- ter point with defendant. Nov. 1, 1906, defendant informed complainant that it would not pay complainant the al- lowances previously in effect, except on traffic on which complainant named through rates to or from La Salle. No DIVISIONS, §4 (a)— IV (b) 277 provision for allowances to complainant was made in defendant's tariffs. Com- plainant asked an order compelling de- fendant to pay it for traffic hauled be- tween such points upon which no joint through rates were established, and asked that allowances be made to it on the basis of the agreed compensation in effect prior to Nov. 1, 1906. HELD, the power of the Commission to award reparation does not extend to the divi- sion of rates between connecting car- riers. Claims ex contractu are not rec- ognized by the Commission; it cannot order the payment of money for serv- ices performed, nor for a debt due one carrier from another on account of joint rates for a joint service. Repara- tion denied. La Salle and Bureau County R. R. Co. v. C. & N. W. R. R. Co., 13 I. C. C. 610, 612. §4. Inability to Agree. See Reasonableness of Rates, §2 (ii); Routing and Misrouting, §4 (dd) ; Through Routes and Joint Rates, §5, §15 (ff). (a) Shippers may not be compelled to wait indefinitely for reasonable rates which are withheld because of the in- ability of carriers to agree as to how they will divide the earnings. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (aa) A carrier is not entitled to withhold reasonable rates from a city on the ground that it is unable to agree upon divisions with connecting carriers. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (b) Before shipping print paper from Sartells, Minn., to Los Angeles, Oakland and San Francisco, Cal., complainant was assured by defendant's agent that the rate of 75c applying from points surroundirg Sartells applied to Sartells. The legal rate was, in fact, 80c. Subse- quent to the shipment the 75c rate was put into effect from Sartells, and de- fendants did not at the hearing ques- tion its reasonableness. HELD, com- plainant should not suffer because of delay on the part of defendants in agreeing on proper divisions, and in publishing the lower rate. The rate at- tacked was found to be unreasonable. Reparation awarded on the basis of 75c. Williamette Pulp & Paper Co. v. N. P. Ry. Co., 18 I. C. C. 388, 388. (c) The fact that carriers, by whom a rate has been lawfully published and advertised to the shipping world as the cost between two given points over all reasonably available routes, have neg- lected or failed to agree upon divi- sions of the rate over one of the routes, cannot be accepted by the Commission as equivalent to a nullification of the published through rate over that route. Divisions are matters of private agree- ment, and for that reason, generally speaking, are of no special concern to shippers, nor are they essential to legal- ize a published through rate. Germain Co. V. N. O. & N. E. R. R. Co., 17 I. C. C. 22, 24. §5. Reductions. (a) No reason to say that joint race to Buffalo, long effective and practically admitted to be reasonable, should now be increased because of loss of revenue to one of the carriers not on traffic to that point, but by reason of interline division of a joint rate when used as a factor in constructing a combination to New York. In Re Advance in Class Rates, 22 I. C. C. 338, 340. §6. Right to Divisions. See Common Carrier, §3 (f ) ; Tap Lines, §9. §7. As Evidence. See Evidence, §13 (2), §13 (3); Long and Short Haul, §12 (2) (a); Through Routes and Joint Rates, §4 (k), §13 (c). IV. LEGALITY. See Allowances, §10 (b) ; Tap Lines, §7. (a) Allowances and divisions to tap lines recognized by the Commission as common carriers must have a proper re- lation to the service performed and be such in amount as not to effect a rebate to the industry. The Tap-line Case, 23 L C. C. 277, 295. (b) A boat line incorporated as a com- mon carrier obtained its facilities from a salt company by which it is owned and in whose interest it is operated; it published no rates except upon sail in cargo lots; rates were manipulated for the benefit of the salt company, and it used as terminal facilities the docks and warehouses of the salt company by whose agents and employes all shipments must be handled. HELD, that the boat line was a mere device to defraud the law, and payments made to it by con- necting rail carriers in the guise of divi- 278 DIVISIONS, IV (c)— V (b) sions are rebates. Colonial Salt Co. v. M. I. & I. Line, 23 I. C. C. 358. (c) Whenever an abnormal division is allowed to a railroad which is tied up with an industry, there results an indirect and hidden rebate to a shipper because of his ownership of the rail- road. In Re Divisions of Joint Rates on Coal, 22 I. C. C. 51, 55. (d) On complaint of coal dealers at Durham, N. C, that one Mason was sell- ing coal at $5 per ton, while the others were compelled to sell it at $G to make a profit, the Commission instituted this investigation sua sponte. Mason's coal was delivered at East Durham, one mile east of Durham, on the D. & S. C. R. R. This road was owned by a lumber com- pany which owned the stock in another lumber company having yards at East Durham. Mason had his yard on the premises of this lumber company. The coal was hauled from the mines, 221 miles, over the C. & O. R. R., for 81c, 116 miles over the N. & W. Ry. for 77c, one mile over the D. & S. C. R. R. for 62c. The rate was the same to Durham as to East Durham. No evidence was found of a departure from published rates or of refund to Mason. Mason ad- mitted that he had gone into the coal business at the solicitation of the D. & S. C. R. R. He paid the same price for coal, the same freight, and 50c per ton for team delivery in Durham, making a profit of about 50c per ton. His office force and other help was much less. No identity of interest was found between Mason and the D. & S. C. R. R. or the lumber company. The tonnage of the D. & S. C. R. R. was largely increased by the enterprise of Mason at East Durham. The D. & S. C. R. R. owned no track in Durham. It used the track of the S. A. L. Ry. to East Durham and the D. & S. R. R.'s line from East Durham, li/^ miles, to its own line, running from thence through a forest and terminating at Bon- sal on the S. A. L. Ry. The D. & S. R. R. also used the S. A. D. Ry. from Durham to East Durham. The D. & S. C. R. R. connects with the N. & W. Ry. at Durham. HELD, the matter does not smack of good faith. The D. & S. C. R. R., being owned by a corporation which owns the main industry on that line, makes this division of rate in effect a rebate. An order will issue against the N. & W. Ry. to show cause why its rates on coal into Durham should not be re- duced. In Re Divisions of Joint Rates on Coal, 22 I. C. C. 51, 57. (e) What the public is primarily in- terested in is the charge for the trans- portation service rendered, irrespective of the divisions of the rate, and if the rate itself is reasonable and just, the fact that it is unequally divided between the participating lines is not a basis for re- duction. There may be many reasons why a particular carrier would be willing to accept a very small proportion of a joint rate in order to secure business, and it is within its rights in bargaining with its connections for tonnage so long as it does not undertake to haul one class of freight at rates so low as to thereby burden other traffic. Florida Mercantile Agency v. Penn. R. R. Co., 21 I. C. C. 85, 87. V. REASONABLENESS. See Advanced Rates, §18 (10). (a) What is a fair division between carriers is to be determined in each case upon the merits of that particular case. In Re Investigation of Alleged Unreasonable Rates on Meats, 23 I. C. C. 656, 662. (b) The A. T. & S. F. Ry. connects at Fort Worth, Tex., with the Cotton Belt Line, which latter road extends to yellow pine mills in southern Arkansas, northern Louisiana and eastern Texas. The average haul on the Cotton Belt Line from the mills to Fort Worth is 310 miles. Lumber received from the Cotton Belt Line by the A. T. & S. F. Ry. was carried to points in Oklahoma, Missouri, Kansas and Colorado, varying in distance from 87 to 772 miles. The A. T. & S. F. Ry. at great expense had extended its line into eastern Texas and western Louisiara for the purpose of reaching yellow pine forests in that section, and this extension tapped terri- tory close to the district reached by the Cotton Belt Line. Lumber received by the A. T. & S. F. Ry. i^rom the Cot- ton Belt Line at Fort Worth was carried by the former to points not reached b.V' the latter road. The joint rates in- volved varied from 23c to 34c per 100 lbs. on hauls to certral Missouri points and to Denver, Pueblo and Trinidad, ■ Colo. An allowance of 10c per 100 lbs. to the Cotton Belt Line of the joint rate would enable it to earn 6.6 mills per ton mile, which exce3ded its revenue on lumber from various other hauls. DOMESTIC RATES— ELECTRIC LINES, I (a) 279 HELD, on account of the extension of its line, the A. T. & S. F. Ry. had strong natural equities in its favor, and a rate of 10c to the Cotton Belt Line represented the latter's fair proportion of the joint rate. Star Grain & Lumber Co. V. A. T. & S. F. Ry. Co., 14 I. C. C. 364, 370, 371. DOMESTIC RATES. See Import Traffic, II (a), (c), (e), (g). DRAYAGE CHARGES. »e Cartage; Demurrage, §1 Reparation, §19 (c). (e); (a) Initial carrier misrouted the ship- ment and in order to obtain possession of the same, consignee had to pay dray- age for carrying the shipment to its plant. HELD, that recognizing the injustice and inevitable hardship to innocent shippers, if in proper cases they may not recover for actual damages sustained, as well as the opportunity for discrimination in the adjustment of damage claims of this na- ture, the Commission upon further con- sideration has reached the conclusion that the ends of justice require modifica- tion of its prior rulings in respect of claims of this character, to the extent that where, as in this case, by default or misconduct of a carrier in failing or refusing to take appropriate routing steps to secure a specific delivery, lawful under the established tariffs and specified by the shipper in writing at the proper time, and without collusion or connivance on the part of the shipper, the consignee is put under the necessity of transferring his freight at the point of destination in completion of the delivery to which he is lawfully entitled under the tariffs and routing instructions, the shipper or con- signee is entitled to recover of the car- rier in fault damages in the sum of actual cost to him of such transfer, but not in excess of reasonable rates of charge therefor. Under the provisions of sec- tion 15 of the amended Act, the Commis- sion is directed to limit and prescribe the amount that a carrier may pay a shipper for the performance by him of a part of the carrier's duty of service in connect'on with the transportation of his freight. As above indicated, the Com- mission does not sanction the adjustment of claims of the kind here under con- sideration without reference of the same to it. Carriers admitting the justice of claims of this sort may hereafter make application to the Commission for au- thority to pay the same, each applica- tion to admit responsibility for the mis- routing and be supported by affidavit of the agent of the carrier cognizant of the^ facts relied upon to justify the payment,' as well as of a responsible accounting officer of the carrier. Shippers may present such claims in the usual manner of presenting formal complaints. All claims of this kind now pending before, or that have been refused by, the Com- mission will be considered, or reconsid- ered, in accordance with this modified ruling. Sterling & Son Co. v. M. C. R. R. Co., 21 I. C. C. 451, 454. (b) A consignee taking delivery of a shipment at freight house which should have been delivered at the warehouse is not entitled to a refund of drayage charges. Crosby & Meyers v. Goodrich Transit Co., 17 I. C. C. 175. (c) The Commission has no right to authorize a carrier to pay consignees cost of drayage on shipments accepted at points other than regular delivery points because of congestion. Crosby & Meyers v. Goodrich Transit Co., 17 L C. C. 175. 177. ELECTRIC LINES. I. CONTROL AND REGULATION. II. THROUGH ROUTES WITH STEAM ROADS. III. RIGHT TO FUEL RATE. IV. TRANSFERS AND RATES. I. CONTROL AND REGULATION. CROSS-REFERENCES. See Association, I (c); Evidence, §1 (dd); Tlirough Routes and Joint Rates, §1 (h), (s). (a) A bridge company, an Iowa cor- poration, constructed under authority of an act of Congress a bridge over the Missouri River at Omaha, Neb., and Council Bluffs, la., and owned a railway beginning at the west end of the bridge in Omaha and extending across same to Council Bluffs. It owned, also, the stocks and bonds of a railway line in Council Bluffs and leased for a period of years a street railway in Omaha. All of these Mnes were operated as one system. The street railway in Omaha was created nnder the street railway act of Nebraska. It did not, and was not empowered to, carry freight, and had no right of emi- nent domain. It carried mail and served two cities and several towns, villages 280 ELECTRIC LINES, I (aa)— II (a) and resorts. HELD, the Interstate Com- merce Commission had jurisdiction over said system of railways to determine the reasonableness of fares exacted be- tween Omaha and Council Bluffs. (17 I. 'C. C. 239, sustained.) O. & C. B. St. Ry. Co. V. I. C. C, 191 Fed. 40, 43. (aa) Complainant assailed as unjust the fare charged by defendants for the transportation of passengers between Somerset, Md., and points in the Dis- trict of Columbia. Two of the rail- ways operate cars only in the District, while the third operates a line from the state to the District. No railway station nor interruption of tracks existed at the District line. Passengers were carried from the District to points in Maryland and vice versa over lines of each of the railroads operating only in the Dis- trict, without change of cars at the Dis- trict line, and the cars of each are oper- ated over lines of each of the others. Though operated as separate and dis- tinct corporations, they have the same general officers and boards of directors composed almost entirely of the same persons. In a contract between two of the defendants it is recited that they are and have been engaged in jointly operating a through electric railway service between points in Maryland and points in the District. HELD, that elec- tric street railways are common car- riers by railroad, and when engaged In the interstate transportation of pas- sengers or property are amenable to provisions regulating interstate com- merce. Citizens of Somerset v. Wash- ington Ry. & Elec. Co., 22 I. C. C. 187, 189. (b) Electric railways are common carriers by railroad within the mean- ing of the Act, and when engaged in Interstate commerce are subject to the Jurisdiction of the Commission. Citi- zens of Somerset v. Washington Ry. & Elec. Co., 22 L C. C. 187, 189. (c) An electric line operating be- tween Washington, D. C, and Virginia points is subject to Act. Beall v. W. A. & M. V. Ry. Co., 20 I. C. C. 406, 409. (d) Street railroads when engaged in interstate commerce are subject to the Act. West End Improvement Club V. O. & C. B. Ry. & B. Co., 17 1. C. C. 239. (e) Defendant street railway leased the bridge over the Missouri River con- necting Omaha and Council Bluffs and operated its cars over it between those cities. Defendant railway operated 136 single-track miles of road; the rails were not all laid on public streets and highways, but for some distance ran over a private right of way, and be- sides operating over the bridge oper- ated through sparsely settled sections, over expensive culverts not conforming to the level of the streets or roads, and carried the United States mails and served the needs of two cities and sev- eral towns, villages and resorts. Under the charter of defendant bridge com- pany, Congress reserved the right to regulate by appropriate legislation the charges for freight and passengers over the bridge. HELD, defendant street railway was in fact an interurban rail- way and the rate charged by it for the haul between Omaha and Council Bluffs over said bridge was subject to the jurisdiction and regulation of the Commission. West End Improvement Club V. O. & C. B. Ry. & B. Co., 17 I. C. C. 239, 244-247; order of Commission sustained. Omaha & C. B. St. Ry. Co. v. L C. C, 191 Fed. 40, reversing 179 Fed. 243, where the Commission's order was temporarily enjoined. II. THROUGH ROUTES WITH STEAM ROADS. See Switch Tracks and Switching, §7 (f), (g); Through Routes and Joint Rates, §1 (h), §11 (2) (f), (u). (a) Complainant, an electric inter- urban railroad, extending from Norwood, a suburb of Cincinnati, to Hillsboro, entirely within the state of Ohio, a dis- tance of 53 miles, prayed for an order requiring the defendants to establish connections and joint rates for the in- terchange of interstate traffic. Under the local law it could not have com- pelled this connection. Subsequent to the hearing the petitioner filed with the Commission two letters addressed to the complainant from shippers on its line giving it authority to use their names as co-plaintiffs. The line of complainant parallels the lines of de- fendants at several points, and many of the towns served by complainant are within a short and reasonably con- venient distance of stations on one or the other of defendant lines. Defendants claimed that complainant's equipment was old and that it could not handle the modern cars of defendants. HELD, that the local law could not bar com- ELECTRIC LINES, II (b)— III (a) 281 plainant's right to a connection under the Interstate Commerce Act; that the general practice of the Commission is not to take a technical view of the record, but to get at the substance of things when possible, and that there- fore the proper parties were before it; that defendants would not be required to make a connection with complain- ant at points served reasonably by the defendants, but that defendants be re- quired to join with the complainant in opening through routes and establish- ing Joint rates between interstate points and certain towns on line of complain- ant that are from 5 to 10 miles, by the country roads, from any station on the defendants' lines, and that the Com- mission finds that complainant will be able to handle the equipment of the defendants, and assumes it will make improvements should any be found nec- essary. C. & C. Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486; order of commission enjoined, 195 Fed. 962. (b) Complainant located its sugar factory at New Delhi, Cal., on the line of the Pacific Electric R. R., owing to lo- cal interests subscribing to its stock, giving it land for a factory site, and cer- tain natural advantages of location which existed. The S. P. R. R. and the Santa Fe run within a short distance of the factory. These roads do not connect with the tracks of the electric railroad at that point. Both roads have offered to run spurs to the factory, and the S. P. Co. has offered to construct an interchange track with the electric railway. Complainant's sugar is carried by the electric railroad to Los Angeles and there delivered for shipment. The establishment of through routes and joint rates with the electric railroad is prayed. HELD, the power of the Commission to establish through routes cannot be invoked unless it ap- pears that the transportation point at which the complainant is located is not reasonably served by through rates now existing. The statute does not contem- plate that a shipiTer who enjoys spur track service from one carrier shall be entitled to say that the service ac- corded him by other lines in the immediate vicinity is inadequate. There Is no escape from the conclusion that the S. P. R. R. and its connections form what is in contemplation of the law a satis- factory through route for the transporta- tion of sugar from New Delhi. Complaint dismissed. California Sugar Co. v. S. P. L. A. & S. L. R. R. Co., 19 I. C. C. 6. (c) Complainant, Cedar Rapids and Iowa City Railway and Light Co., is an electric line of standard gage and suffi- ciently substantial construction for car- rying freight, running from Cedar Rapids, la., southward to Iowa City, la., a dis- tance of 27^ miles. It had six freight cars with standard couplers and automatic air brakes, and one electric motor of suffi- cient power to haul from 6 to 10 loaded freight cars. It demanded the establish- ment of through routes and joint rates from points on its line over the C. & N. W. Ry. It duly published its local rate, making the same applicable to interstate movements. At points on complainant's line were located important cities main- taining grain elevators and coal, lumber and live stock yards, and general stores. The area reached by complainant was ca- pable of originating and consuming some 5,000 carloads of freight yearly, of which some 75 per cent would involve interstate movement, and complainant had actually hauled during one year some 423 car- loads of live stock, of which 170 were con- signed to points outside the state, and had moved during one year a total of some 930 carloads of freight of all kinds. Complainant served a section of the coun- try of considerable area lying between the tracks of the C. R. I. & P. Ry., the C. M. & St. P. Ry., and the defendant, C. & N. Ry. The points on its line were several miles from the lines of the other carriers, in some cases being as far as seven miles away. These distances made a long drive for live stock and a long wagon haul for grain and other farm products. Complainant did not parallel any of the other lines. HELD, that ship- pers did not enjoy the benefit of any reasonable or satisfactory through routes from and to Chicago and other points served by defendant; that there was suffi- cient trade offered for through movement to justify the ordering of through routes and joint rates, and that such routes and rates should be established from and to Coralville and the intermediate points to the north on the line of complainant to and from Chicago and other points on the line of the defendant via the junc- tion points of the complainant and de- fendant, C. & N. Ry. at Cedar Rapids. Cedar Rapids and Iowa City Ry. & Light Co. V. C. & N. W. Ry. Co., 13 I. C. C. 250, 254. III. RIGHT TO FUEL RATE. (a) Discrimination cannot well be avoided if competing electric line is n'^t 282 ELECTRIC LINES. IV (a)— (d) given the same fuel rate as is accorded to a steam^ railroad. In Re Restricted Rates, 20 I. C. C. 426, 431. IV. TRANSFERS AND RATES. (a) A complaint before the Commis- sion stated that the street railways in Omaha, Neb., and Council Bluffs, la., and the bridge road connecting said cities were controlled by defendant railway and bridge company and were operated as one system; that from all points in Coun- cil Bluffs, except Cortland Beach, across said bridge to all points in Omaha, a single fare of 10c was charged, and from points in the loop district in Omaha across the bridge to all points in Coun- cil Bluffs the same fare was charged; and that from points outside the loop in Omaha across the bridge to Council Bluffs an additional fare of 5c was exacted. The complaint attacked the 10c fare as unreasonable and prayed that defendant be required to establish a fare from Council Bluffs to Omaha, and reverse, which should not exceed 5c per passenger, or such charge as the Com- mission should find reasonable, and prayed that no extra charge be made when in the course of interstate trans- portation passengers were carried over the said bridge. HELD, the Commis- sion did not go beyond the issues raised in the complaint by eliminating the loop boundary for the 10c fare and making the same apply from all points in Omaha across the bridge to Council Bluffs. (17 I. C. C. 239, sustained.) Omaha & C. B. St. Ry. Co. v. I. C. C, 191 Fed. 40, 43. (b) Defendant interurban railway con- nected Council Bluffs and Omaha across the Missouri River, the bridge used being leased from a bridge company. The toll for foot passengers over the bridge was 5c. The fare charged by defendant be- tween the two cities over the bridge was 10c, which included the bridge toll. For this 10c fare a passenger could ride only from a point in a small loop made in Omaha by defendant's line to points in Council Bluffs; he could not by means of a transfer ride from a point outside of the loop in Omaha across the bridge to points in Council Bluffs for 10c, but must pay extra fare. The same situation ex- isted on a trip from points in Council Bluffs across the bridge into Omaha, the end of the trip on the lOc fare being at points within the loop. Defendant sold commutation tickets for this haul, 30 rides for $1.50. The profits under the 10c rate were large, but there was evi- dence that the haul in question could not be made profitably for 5c. HELD, the demand for reduction of the rate to 5c should be denied, but defendant should institute a transfer system under which the fare from Council Bluffs, not including Cortland Beach, to any point in Omaha, or from any point in Omaha to Council Bluffs, not including Cortland Beach, should not exceed 10c. West End Improvement Club v. O. & C. B. Ry. & Bridge Co., 17 I. C. C. 239, 248, 249; arder temporarily enjoined on ground the Act does not apply to street railways, O. & C. B. St. Ry. Co. v. I. C. C, 179 Fed. 243, 240; order of Commission sustained, however, in O. & C. B. St. Ry. Co. v. I. C. C, 191 Fed. 40. (c) The street railway lines in Omaha, Neb., and Council Bluffs, la., and the line across the bridge were controlled and operated as one system by defend- ants. The fare from the loop district In Omaha across the bridge to Council Bluffs was 10c, with an additional fare of 5c from points outside said loop district. In the latter case, however, the pas- senger paid but a single fare within the city of Omaha, receiving the necessary transfers at junction points to and from the loop. HELD, the reasonableness of said charges were questions of interstate rates within the jurisdiction of the Com- mission. (17 I. C. C. 239 sustained.) Omaha & C. B. St. Ry. Co. v. I. C. C, 191 Fed. 40, 43. (d) Defendants' electric lines run continuously from Washington, D. C, to Laurel, Md., a total of 18.9 miles. Peti- tioners prayed for a lengthening of the fare zones in Maryland, a reduction in commutation fares, and an increase in the number of trips allowed on commuta- tion tickets within a month. The line of the defendants beyond the city limits is parallel to the tracks of ihe B. & O. R. R. between Hyattsville and Laurel, Md. For single or round trips the electric line charged less than the steam road, and the monthly commutation tickets of the electric line were likewise cheaper. The steam road lands its passengers within a short distance of the government build- ings in Washington, whereas the electric line takes its passengers by transfer to nearly every portion of the District of Columbia. HELD, the fares on the elec- ELECTRIC LINES, IV (e)— EMPLOYMENT, I fa) 283 trie line are not unreasonable or unjust. Silvester v. City & Suburban Ry. of Wash., 22 I. C. C. 201, 204. (e) The passenger fare of 15c, Wash- ington, D. C, to Four Mile Run, St. Elmo, St. Asaph. Mt. Ida and Del Ray, Va., an average distance of 5 miles, was attacked as discriminatory in favor of Alexandria, about seven miles from Washington. Other suburban lines entering Washing- ton charged generally 10c for a trip of about five miles and sometimes even more. The Virginia points, it was con- tended by defendant, gave it only a small traffic. HELD, it ought not to be ex- pected that communities should bear an undue portion of the cost of a transpor- tation service designed and for the most part used to meet the requirements of other and larger communities, nor doe? the fact that defendants in order to fur- nish adequate service to the large cities at its termini operate to these towns many more trains than are necessary to their needs warrant the exaction of a charge in proportion to the frequency of the service incidentally furnished. Any additional traffic secured from the inter- mediate points is in the nature of a net gain to the carrier. Rate reduced to 10c. Beall v. W. A. & M. V. Ry. Co., 20 I. C. C. 406. 408. ELEVATION. — See Allowances, §2 (a), §8 (3). §12 (1) (d); Tariffs, §4 (TT, (k); Transit; Transportation, §11 (c); Weights and Weighing, §1 (b). ELKINS ACT. See Crimes, I. EMBARGO. See Cars and Car Supply, §30 (d); Demurrage, §4 (a). (a) An embargo may be justifiable be- cause of the physical inability of the car- rier for some reason to deal with traffic which overwhelms it, but an embargo placed against connecting carriers be- cause of their failure to promptly return cars is not consonant with the service which carreers constituting through routes are required by law to give. Mo. & 111. Coal Co. V. I. C. R. R. Co., 22 I. C. C. 39, 47. i (aa) Defendant carrier had suffered i from the acts of connecting carriers which seized defendant's coal cars in time of shortage and refused to return them. Defendant established an embargo and refused to supply cars for shipments from points on its own to points on con- nfcting lines to which defendant had established through routes and joint rates. Defendant took inis course for the purpose of protecting local traffic on its own line. HELD, that the em- bargo was unlawful, as railroads under the Act were united into a national system, were required to establish and keep open through routes and to fur- nish the necessary facilities therefor, and it was the duty of defendant to establish such rules and regulations with other carriers as would result in the prompt return of cars to its own line. Mo. & 111. Coal Co. v. I. C. R. R. Co., 22 I. C. C. 39, 47. (b) Temporary confiscation by car- riers of cars belonging to other railroads and the placing of embargoes against cars being sent off the lines of the car- riers who own them are alike unlawful. Mo. & 111. Coal Co. V. I. C. R. R. Co., 22 L C. C. 39. (c) It is not wthin the power of the Commission to order a carrier to inter- dict a particular shipper from engaging in interstate transportation. The only ground upon which the Commission can give consideration to the quest'on of em- bargoes would be on an allegation that an embargo or series of embargoes re- suited in undue discrimination. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 34. (d) An embargo is a war measure or extraordinary remedy. Primarily, it is not intended as an incentive to promptly release equipment, but to prevent further movement until such time as measures can be taken to remove accumulation of cars. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 34. employment! I. HOURS OF SERVICE ACT. (a) The restrictions in section 2 of the Act relating to the hours of serv- ice of eranloyes are not invalid by reason of the fact that in applying to employes engaged in interstate com- merce they also incidentally apply to the same employes with respect to their duties in handling intrastate traffic. B. & O. R. R. Co. V. I. C. C, 221 U. S. 612, 619, 31 Sup. Ct. Rep. 621, 55 L. ed. 878. 284 EMPLOYMENT, I (b)— EQUALIZATION OF RATES (b) The provisions in section 2 of the Act limiting the hours of service "except in case of emergency" are not Invalid on the ground of uncertainty by reason of the use of generic description, "except in case of emergency." B. & O. R. R. Co. V. L C. C. 221 U. S. 612, 620, 31 Sup. Ct. Rep. 621, 55 L. ed. 878. (c) Complainant railroad applied to the Commission to be relieved from the operation of the Act of March 4, 1907, with respect to the provision that em- ployes of railroads handling train or- ders by telegraph or telephone should not be permitted to be on duty more than nine hours in offices operated day and night, or more than 13 hours at offices operated only during the day- time. Complainant asked that the agents at certain stations after hand- ling train orders for nine hours or less might be required to work a sufficient number of hours as clerks or other- wise to complete 12 hours of service, and that agents at certain stations who handled very few train orders or mes- sages might be required to remain on duty from 13 to 15 hours. Complainant simply alleged that the work was very light, easily performed without the em- ployment of additional men, and alleged the needless expense of increasing the number. There was no allegation that the company was unable to obtain an additional force of telegraphers or that it made any effort to do so, or that the company had insufficient funds to pay such an increased force as might be necessary to keep the offices open and comply with the limitation upon hours of labor imposed by the Act. HELD, that the authority of the Com- mission to grant relief from the Act was limited to instances of special and unforeseen conditions, and it was not contemplated that conditions which are common and well known and are fre- quently found in every railway should be regarded as a sufficient basis for the relief prayed. Petition denied. In Re the Application of the Georgia South- ern & Florida Ry. Co., 13 I. C. C. 134, 136. (d) Complainant carriers after Feb. 7, 1908, filed petitions asking the Com- mission to extend the time of the go- ing into effect of the Act of March 4, 1907, relating to the hours of employ- ment of railroad agents engaged in duties connected with the movement of trains, which by its terms was to go into effect March 4, 1908. The principal purpose of petitioners was to gain relief from the provision limiting the hours of service of employes to nine hours in stations operating con- tinuously day and night. The petitions were directed to particular stations oper- ating under peculiar conditions, but in effect asked that two-thirds of all day and night stations on the lines of peti- tioners should be exempted from the operation of the Act for a period to be extended by the Commission. The grounds alleged were the impossibility of securing the additional employes, the existence of which ground was not established as a fact, and the financial hardship. At the time of the hearing the railroads generally were in consid- erable financial distress. HELD, under the proviso of the second paragraph of the Act, the Commission had authority to extend the period of operation of the Act only to particular stations oper- ating under peculiar circumstances, and could not apply such extension to sta- tions generally, so as practically to nullify the statute. Petitions denied. In Re Petitions for Extension Under Hours of Service Law, 13 I. C. C. 140, 146. (e) The Act of March 4, 1907, limit- ing the hours of service of railroad agents connected in their duties with the moving of trains, was passed in the interest of the public and intended to lessen the hazard of railway opera- tions by preventing mistakes in the giv- ing of orders and of sending of dis- patches occasioned by the fatigue and overwork of employes. In Re Petitions for Extension Under Hours of Service Law, 13 I. C. C. 140, 142. EQUALIZATION OF RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. CIRCUMSTANCES AND CONDI- TIONS. §2. In general. §3. Commercial advantages and disabilities. §4. Competition. (1) In general. (2) Railroad. (3) Rail-and-water. (4) Water.- §5. Low state rate. §6. Preference of markets, §7. Size of community. EQUALIZATION OF RATES, §1 (a)— (h) 285 III. EFFECT OF EQUALIZATION. §8. Adjustment of related rates. CROSS-REFERENCES. See Advanced Rates, §5 (2); Rela- tive Rates. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Discrimination, §14 (b). (a) In 19 I. C. C. 148, involving the rates on oranges and lemons from south- ern California points to the East, the Commission refused to disturb the $1.15 rate on oranges, but ordered that the rate on lemons should not exceed $1 per 100 lbs. The only transportation con- sideration stated by the Commission jus- tifying their orders was that the average length of haul, and, therefore, the aver- age cost, was less for lemons than for oranges, and that lemons were ordinarily carried under ventilation, while or- anges were ordinarily carried under the more expensive refrigeration. The minimum carload weight prescribed for oranges was higher than for lemons. An additional cost for oranges due to refrigeration was the subject of a special refrigeration charge. While the average haul for lemons -was 500 miles less than for oranges, the report of the Commission indicated that this was but a small factor in the case, especially as the increase of 50 per cent in the protective tariff on lemons was ex- pected to widen the market for the California lemon growers and thus to in- crease the average length of the lemon haul. The principal ground on which the Commission based its order was the need in the lemon industry of a high protective tariff against Sicily, and the order was entered to compensate for the insuffi- ciency of the protective tariff in effect. HELD, the order should be permanently enjoined. Whatever the rights of carriers may be to give reduced rates for the pur- pose of fosteriHg a new or an established industry or for granting to it a higher measure of protection against foreign competition than Congress through the revenue laws has given it, no such power can lawfully be exercised by the Com- mission. A. T. & S. F. Ry. Co. v. 1. C. C, 190 Fed. 591, 594, 596. (b) It is no part of the Commission's duty or right to equalize the markets, except as that result may be incident to the correction of a substantial injustice in rates, in whatever form published at the respective competitive points. Sioux City Terminal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 109. (bb) The Commission has no juris- diction to reduce rates for purpose of increasing profits of shipper or to equal- ize economic conditions. Bituminous Coal Operators v. P. R. R. Co., 23 I. C. C. 385, 391. (c) The Commission cannot under- take to establish freight rates which will insure production at a profit. Florida Fruit & Vegetable Shippers' Protective Ass'n V. A. C. L. R. R. Co. 22 L C. C. 11, 14. (d) The Commission is not empow- ered to remedy commercial disadvan- tages under the law. In so far only as any undue discrimination in the freight rate adjustment may have aided to bring about the condition complained of has the Commission any regulating authority. Elk Cement & Lime Co. v. B. & O. R. R. Co., 22 I. C. C.*84, 86. Vz (e) The principle that where joint or proportional rates were made by all carriers leading to certain points of des- tination, it was within the Commission's power to end discrimination as between points of origin by a reduction in the rate from the point discriminated against, only has application where the traffic from both groups of origin is nec- essarily transported to destination by the same connecting carrier or carriers, and where it is possible for the deliver- ing carriers to put an end to the dis- crimination b/ the exercise of their power to refuse to enter into preferential joint or proportional rates. Ashland Fire Brick Co. v. S. Ry. Co., 22 L C. C. 115, 120. (f) Power has not been lodged with the Commission to equalize economic ad- vantages, to place one market in com- petition with another, or to treat all rail- roads as a part of one great whole, ap- portion to each a certain territory, or re- quire all to meet upon a common basis at all points. Ashland Fire Brick Co. v. S. Ry. Co., 22 L C. C. 115, 121. (g) The Commission has no jurisdic- tion to correct tariff insufiiciencies by the freight rate, nor to protect in that way American against foreign producers. Arlington Heights Fruit Exchange v. . P. Co., 22 I. C. C. 149, 151. (h) The Commission cannot equalize actual commercial disparities or advan- tages by an adjustment of freight rates. 286 EQUALIZATION OF RATES, §1 (i)— (s) In Re Investigation of Rates on Meats, 22 I. C. C. 160, 163; Carstens Packing Co. V. O. & W. R. R. Co., 22 I. C. C. 77, 81. (i) The additional cost of operation of a factory situated in one part of the country over its competitors situated in another part, in addition to its high-^ r cost of construction, and other commercial conditions, are questions which, under the statute, the Commission has no authority to consider. Empson Packing Co. v. C. M. Ry. Co., 22 I. C. C. 268, 270. (J) Upon an application that the Sac- ramento gateway be reopened to traffic from eastern states to Oregon, the follow- ing facts developed: Prior to 1902 the U. P. R. R. and the O. S. Line were in competition with the S. P. Co., via Sacra- mento, the route of the S. P. Co. being 476 miles longer between Ogden and Portland. The transcontinental rates via Sacramento were withdrawn by Har- riman. The O. S. Line traflEic follows a more direct line to Portland than that via the Willamette Valley. The line from Ogden via Sacramento to Port- land was chartered to be operated as a continuous line, and the Willamette Val- ley was built up under this understand- ing. Reasonable rates and prompt serv- ice are now obtained over the O. S. Line. HELD, the Commission's power is limited to establishing reasonable rates and eliminating discrimination. It does not have the power to make the rate over a line 476 miles longer the same as over the shorter route, nor can it sever the 0. S. Line from the S. P. Co. Complaint dismissed. Gile & Co. v. S. P. Co., 22 L C. C. 298. (k) In adjusting interstate rates on milk, the Commission has no jurisdiction to say what shall be done as a matter of public policy, except in so far as the public weal must always be considered in exercising authority under the Act. The duty of the Commission is only to ascertain whether rates are in accordance with the Act. Albree v. B. & M. R. R., 22 1. C. C. 303, 319. (1) Where a carrier extends a low rate in favor of one locality it may be required to accord similar treatment to another locality. Railroad Commission of Kansas v. A. T. & S. F. Ry. Co.. 22 L C. C. 407, 411. (m) While carriers have in the past often adopted the policy of giving great consideration to commercial conditions, and the Commission might under the same circumstances require those rates to be maintained when once voluntarily established, it will not Initiate rates upon this theory. International Agricultural Corporation v. L. & N. R. R. Co., 22 I. C. C. 488, 494. (n) It is not within the power of the Commission to equalize economic condi- tions, or to place one market in a posi- tion to compete on equal terms with an- other as against natural advantages. Nor has it power to require railroads, in the face of varying trade conditions, to ad- just their rates in such a manner as to insure to a market the continuance of a trade it has once enjoyed. Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 L C. C. 596, 603. (o) It is not the function of the Com mission to equalize commercial condi- tions or to establish zones of trade or bring markets into competition with eacli other. In Re Advances on Coal to Lake Ports, 22 L C. C. 604, 613. (p) Congress could itself have under- taken to make rates, and to establish re- lationships between communities and commodities. Railroad Commission of Nevada v> S. P. Co., 21 I. C. C. 329, 336. (q) The Commission is not invested with authority to make the commercial needs of the shipper the foundation of a finding that any rate is unreasonable. Douglas & Co. V. C. R. L & P. Ry. Co., 21 L C. C. 541, 543. (r) The Commission cannot overcome by an adjustment of freight rates natural advantages, such as water competition and climatic conditions, which one com- peting locality has over another. Truck Gkowers' Ass'n v. A. C. L. R. R. Co., 20 L C. C. 190. (s) The Commission cannot lawfully base rates upon the profits derived in a particular business. It might be that in a favorable season the truck farmers ot Ponchatoula would receive large and gen- erous returns from their labors, but this fact would not justify the carriers in charging for transporting the vegetables for market more than a reasonable rate for the service performed. In another season the market prices might be such that there would be little or no profit in the business, yet such fact would not justify the Commission in requiring car- riers to transport the produce at a less rate than would be reasonable for the EQUALIZATION OP RATES, §1 (t)— (bb) 287 service performed. The law does npt re- quire the carriers to regulate the price of transportation upon the basis of profits to the shipper, and in authorizing the Commission to fix reasonable rates the law presumes that the measure of reason- ableness will be based upon all the many elements of the particular traflSc involved. Ponchatoula Farmers' Ass'n v. I. C. R. R. Co., 19 I. C. C. 513, 515, 516. (t) It is improper for the Commission to equalize disadvantages of location and other conditions. Saginaw Board of Trade v. Grand Trunk Ry. Co., 17 I. C. C. 128, 137. (u) The Commission cannot order a reduction in rates to enable certain fac- tories to overcome natural advantages en- joyed by competitive producing points. Virginia-Carolina Chemical Co. v. St. L. S. W. Ry. Co., 16 I, C. C. 49, 52. (v) Complainant, manufacturer of fertilizer at Shreveport, La., attacked the rates from there to Arkansas desti- nations on the line of the St. Louis Southwestern R. R. as unreasonable per se and unduly discriminatory in favor of Memphis. Factories at Memphis, New Orleans and other cities, located nearer the Atlantic or Gulf ports than Shreve- port, had an advantage over it in the manufacture of fertilizer, on account of the nearness to the supply of pyrites and phosphate rock, the cost of manufacture at Memphis being 87c per ton less than at Shreveport. In shipments from Mem- phis to the points in question an arbi- trary of 30c per ton was paid by defend- ant for the use of a bridge over the Mis- sissippi River and 60c per ton was paid by it to carriers reaching Memphis. For several years prior to 1906, defendant had established rates lower than the rates attacked from Shreveport to the points in question in order to build up a demand for fertilizer among the farm- ers along its line. Defendant's rates per ton mile were higher than those of other carriers reaching Arkansas points equal- ly distant from Shreveport. HELD, the Commission could not reduce defendant's rates from Sheveport on the basis of the rentals paid by ifc on its shipments from Memphis; nor could it reduce those rates to enable Shreveport to overcome the natural advantages enjoyed by competi- tive producing points; but that defend- ant's rates were unreasonable and should be reduced to a point lower than the rates attacked, but not so low as those in effect from Shreveport to the points in ques- tion prior to 1906. Reparation awarded. Virginia-Carolina Chemical Co. v. St. L. S. W. Ry. Co., 16 I. C. C. 49, 52-54. (w) The Commission will not take from a locality advantages which on ac- count of its location naturally belong to it. Valley Flour Mills v. A. T. & S. P. Ry. Co., 16 I. C. C. 73, 76. (x) It is one thing for a carrier to voluntarily reduce rates not excessive, for the service performed, solely to meet competitive and commercial conditions, but it is a different thing for the Com- mission to compel such reductions re- gardless of transportation conditions. Chicago Lumber & Coal Co. v. Tioga Southeastern Ry. Co., 16 I. C. C. 323, 334. (y) The Commission cannot permit itself to be made an agency through which the rates of competing carriers are equalized by adjustments made sub- sequent to the performance of the ser- vice, simply because the rates of one or the other were at the time "out of line" with those of its competitors. The ship- per should give his shipment to the car- rier that has at that time the lowest law- fully published applicable rate, and fail- ing to do this, he should not expect the Commission later to authorize refund for the purpose of equalizing the rate of the line to which he gave his business with the lower lawful rate of a competing line which he might have used. Swift & Co. V. C. & A. R. R. Co., 16 I. C. C. 426, 429. (z) It seems plain that the duty of this Commission is to establish just and fair transportation charges in so far as it can be done and allow rival creamery methods to operate under those charges. The Commission should not establish a scale of rates with a view and for the purpose of fostering or discouraging either form of this industry. Beatrice Creamery Co. v. 111. Cent. R. R. Co., 15 I. C. C. 109. (aa) In determining the reasonable- ness of rates on chinaware, the Commis- sion cannot decline to reduce the rates on imported china on the ground that to do so would give an advantage to foreign manufacturers on account of inadequate tariff duties. Union Pacific Tea Co. v. Penn. R. R. Co., 14 L C. C. 545, 548. (bb) In determining the justification for a different rate on the same commodi- 288 EQUALIZATION OF RATES, §1 (cc)— §2 (b) ty to nearby consuming points, the Com- mission has nothing to do with the prices paid for said commodity by dealers in or consumers of it. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 66. (cc) Complainant attacked as unjust- ly discriminatory the rates on domestic plate glass as compared with those on plate glass imported from foreign coun- tries, in that third class rates applied on domestic shipments, and fourth and fifth class rates on shipments from Ant- werp and other foreign producing points via ocean steamship lines to ports of entry and thence by rail to ultimate in- terior points of destination in this country. Since the hearing defendants increased the rates on imported glass so as to materially diminish the disparity, still leaving the rate for the entire haul from foreign points less than those upon traffic originating in this country. It appeared that defendants were forced to compete with one another for the traf- fic coming to Canadian, Atlantic and Gulf ports by steamship from foreign ports and each carrier was compelled by the steamship lines to name low rates for the haul from these ports in order to participate in the traffic. Each railroad sought to encourage the bringing of ships to its piers that there might be facili- ties for handling the exports of this country. The ocean carriers demanded the carriage of a share of the imports and would land at piers where they could unload and load the greatest quantity The railroads were forced to make cheap carriage of imports to inland distances in order to sustain the movement of traffic from abroad and incidentally to main- tain their own export and import trans- portation. On account of the lower rates on imported glass, foreign producers were able to produce and sell at points in the United States at a smaller price than were domestic manufacturers. The import and domestic traffic did not take the same routes in the same direction. The domestic rates were for carriage from inland distributing points to other Inland points and to the seaboard, while the import rate was exclusively from seaboard to inland points. Rail trans- portation was preferable to water on ac- count of better facilities for handling and stowing away and because of less break- age. Domestic glass was loaded and un- loaded by the consignor and consignee, while the railroads were at the expense of loading the import glass at the sea- board. The carriers reaching the gulf ports were glad to accept foreign traffic at low rates in order to fill their empty cars returning from these ports. No evidence other than the difference in rates complained of was offered to show the domestic rates unreasonable per se. HELD, the rates complained of were not shown to be unreasonable or discrimina- tory under sections 1, 2, 3 and 4 of the Act. It is the duty of the Commiss'on to look to the circumstances and conditions affecting the rates involved, not only in this country, but in the entire field of commerce here and abroad. Whatever would be regarded by common carriers, apart from the operation of the statute, as matters which warranted differences in charges ought to be considered in forming a judgment whether differences in import and domestic rates are just or unjust, and the circumstance of com- petition by ocean carriers at the differ* ent ports is a fact meriting consideration in passing upon the reasonableness of an inland rate applicable from the sea- board on domestic traffic when the rea- sonableness of such rate is called in question by comparison with a lower rate applying from the port of entry on traf- fic shipped from a foreign country. Com- plaint dismissed without prejudice. Pittsburg Plate Glass Co. v. P. C. C. & St. L. Ry. Co., 13 I. C. C. 87, 99-102. II. CIRCUMSTANCES AND CONDI- DITIONS. §2. In General. See Differentials, §2 (a), §5. (a) It does not so follow as a matter of law that rates should be the same for the same distance over two different roads. I. C. C. v. U. P. R. R., 222 U. S. 541, 549, 32 Sup. Ct. 108, 56 L. ed. 308. (aa) It would not be possible to estab- lish differentials from Indianapolis to the Mississippi River which would equal- ize the charges under the differentials fiom Chicago unless both lines of differ- entials were governed by the same classi- fication. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 202. (b) Complete equalization of rates be- tween localities cannot be effected except by a full consideration of the length of haul and the rates on raw materials and manufactured products respectively. In- EQUALIZATION OF RATES, §2 (c)— (p) 289 dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 205. (c) It is not the function of the Com- mission nor that of the carrier to equal- ize economic conditions. The law does not permit a reasonable rate to be fixed solely upon that ground. Bituminous Coal Operators v. Penn. R. R. Co., 23 I. C. C. 385, 391. (d) Neither the carriers nor the Com- mission can lawfully so adjust rates as to equalize commercial advantages and disabilities. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 442. (dd) It is not enough to show that in miles the distance is less from a producing center via one gateway to a consuming center in order to equalize the rate between the same points via another gateway. It must be shown that the cost of transportation is less, or rather that the combination of rates is less as estimated by the general level of rates in the territory through which' the transportation is conducted. In Re In- vestigation of Unreasonable Rates on. Meats, 23 I. C. C. 656, 669. (e) Carriers may not haul a particular class of traffic or trafllc for a particular community at less than the cost of the service and recoup themselves from the charges levied against other charges. In Re Rates for Single Packages, etc., 22 I. C. C. 328, 335. (f) Carriers are not required to estab- lish rates that will guarantee a profit to shippers. R. R. Com. of Kans, v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 410. (g) Rates should be so adjusted as to permit widest possible market com- petition. Andy's Ridge Coal Co. v. So. Ry. Co., 18 I. C. C. 405, 410. (h) The interest of the consumer must be considered, as well as that of the producer. Andy's Ridge Coal Co. v. So. Ry. Co., 18 I. C. C. 405, 510. (i) It does not follow that if a joint through rate is effective via one route It must necessarily be made effective via another. Males Co. v. L. & H. R. Ry. Co., 17 I. C. C. 280, 282. (j) A rate is not unreasonable simply because a lo^wer rate is in effect via lines of other carriers. South Canon Coal Co. V. C. & S. Ry. Co., 17 I. C. C. 286. (k) The Commission cannot permit a refund applicable to a particular ship- ment for the sole purpose of enabling carriers to make good a rate not in ef- fect when the shipment moved, but which they had agreed to protect. Such a prac- tice would do away with the published tariff altogether if generally applied. Crowell & Spencer Lumber Co. v. T. & P. Ry. Co., 17 L C. C. 333. (kk) Before the Commission can con- clude that a rate on a given commodity is too high, because it is higher than some other rate named, it must know that the rate selected as the standard for a comparison is a reasonable and a fair one. Darling & Co. v. B. & O. R. R. Co., 15 L C. C. 79, 83. (1) In determining what is the "pub- lic interest" the Commission should have regard to the carrier as well as the ship- per, and should not permit the whim of one to offset the substantial advantage the other. Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co., 15 L C. C. 460, 467. (m) It is not possible to have a rate adjustment which places all towns and cities upon an exact equality. Kindel v. N. Y. N. H. & H. R. R. Co., 15 L C C. 555, 561. (n) The opportunity to buy in a wide- ly extended market is a valuable one to merchants in that it presents a larger field for competition and ordinarily offers the best quality at the lowest price; and a carrier has no right, by refusing through routes and reasonable joint rates, to restrict or circumscribe this opportunity. It is the duty of common carriers to haul the traffic that is offered and to make the necessary arrangements and furnish facilities and establish rea- sonable rates therefor; and a carrier is not justified in refusing traffic from points on other lines on the ground that such traffic would displace in the mar- kets traffic from points on its own lines and thus adversely affect its revenues. Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 14 L C. C. 364, 367. (o) Higher rate in effect to Powers- ville. Mo., than to other points taking Missouri River rate; tariff corrected. Reparation awarded. Val Blatz Brewing Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 184. (p) The rate on apples from Belling- ham. Wash., to Denver, Colo., was dis- 2% EQUALIZATION OF RATES, §2 (q)— §3 (bb) criminatory in favor of Missouri River points. Reparation awarded. Lawrence- Hensley Fruit Co. v. U. P. R. R. Co., Unrep. Op. 189. (q) Discriminatory rates were charged to Brokaw and Tomahawk, Wis., against Merrill, Wis. Reparation awarded. Lin- dauer Pulp & Mfg. Co. v. D. R. L. & W. Ry. Co., Unrep. Op. 251. (r) The rate to Rock Island, 111., should not exceed that in effect to Daven- port, la., from Hartford, Mich. Repara- tion awarded. Lagomarcini-Grupe Co. v. C. B. & Q. R. R. Co., Unrep. Op. 269. (s) Rates on lubricating oil from Fay- ette, Ky., to Superior, Wis., should not exceed those in effect to Duluth, Minn. Reparation awarded. Buffalo Oil Co. v. C. N. O. & T. P. Ry. Co., Unrep. Op. 289. (t) Allegation that the rating of live and dressed poultry alike results in pref- erence in favor of live poultry dealers, not sustained by the facts. Rosebrough V. P. Exp. Co., Unrep. Op. 438. (u) No reason why the rate to Minne- apolis should have been higher from Arkansas points than from points in Texas from which the distance is greater. Gamble-Robinson Commission Co. v. St, L. & S. F. R. R. Co., Unrep. Op. 506. (v) South Hammond, Ind., is not en- titled to the same rate as Hammond, Ind. Anguish v. C. I. & L. Ry. Co., Un- rep. Op. 580. (w) The rate on corn from Fairview, Mo., to Terrell, Tex., was unreasonable to the extent that it exceeded the con- temporaneous rate from from Pittsburg, Kan. Reinhardt Grain Co. v. M. & N. A. R. R. Co., Unrep. Op. 591. §3. Commercial Advantages and Dis- abilities. See Absorption of Charges, §2 (f ) ; Act to Regulate Commerce, II (a); Blanket Rates, §7; Differentials, §5 (h), §6, §7; Discrimination, §9 (e), (f), (J): Evidence, §2, §14 (5) (v); Express Companies, §19. (a) The Interstate Commerce Act as amended does not attempt to equalize fortune, opportunities or abilities. On the contrary, it in turn contemplates that if a carrier receives services from an owner of property transported or uses instrumentalities furnished by the latter, he shall pay for them, the only restriction being that he shall pay no more than is reasonable, and the only permissive element being that the Com- mission determine the maximum in case there is complaint or upon its own mo- tion. I. C. C. V. Diffenbaugh, 222 U. S. 42, 46, 32 Sup. Ct. 22, 56 I., ed. 83. (aa) In Western Oregon L. M. A. v. S. P. Co., 14 I. C. C. 61, the Commission ordered a reduction of the rate of $5 per ton upon rough green fir lumber and laths from points in the Willamette Val- ley to San Francisco to $3.40. The opin- ion of the Commission indicates that the carriers formerly maintained a lower rate; that the lumber industry had been built up upon those rates, and that it was inequitable to the shippers for car- riers, in view of these facts, to raise the rate to $5, It did not find, however, that the rate was unreasonable, but bas6d Its decisions on the above-mentioned con- siderations. HELD, the Commission ex- ceeded its jurisdiction in assuming that it had power to substitute a new rate for a just and reasonable rate on the ground that it was a wise policy to do so or that the railroad had so conducted itself as to be estopped in the future from being entitled to receive a just and rea- sonable compensation for the service rendered. S. P. Co. v. Int. Com. Comm., 219 U. S. 433, 443, 31 Sup. Ct. 288, 55 L. ed. 283. (b) Where a shipper is located in a district to which a uniform rate has been applied, he is entitled to the same rates as any other shipper in the district, al- though his shipments may be originated by a different railroad than that serving the other shippers. Penn. R. R. Co. v. International Coal Mining Co., 173 Fed. 1, 6. (bb) Complainant charged that defend- ant made rates out of Dallas and other Texas points into eastern Texas which were much lower than those which they extended into Texas from Shreveport, La., in the ?ame line of business, for the same distances. Shreveport enjoyed lower carload rates from northern and eastern points than Texas jobbing points. This gave Shreveport an advantage over Texas jobbers and to offset this the Texas Commission reduced rates on in- trastate shipments of less than carload lots for the purpose of protecting its job- bers and manufacturers. HELD, that car- riers cannot impose an unreasonably high local rate out of a city because of advantage it properly enjoys for secur- ing low inbound rates by reason of its EQUALIZATION OP RATES, §S (c)— (h) 291 location. Meredith v. St. T.. S. W. Ry. Co., 23 I. C. C. 31, 34. (c) Complainant is a manufacturer of glucose syrup at St. Joseph, Mo., and demanded a rate to the Pacific coast which would enable it to compete with competitors situated at Chicago. It was not contended that the rate of 75c per 100 lbs. from St. Joseph to California terminals was unreasonable per se, but the contention was made that because the complainant had to pay 23^c per 100 lbs. more for its glucose, which is Its raw material, than Chicago manufactur- ers, it is discriminated against. This discrimination arose because its compet- itors located in Chicago buy their raw material at that point, whereas complain- ant must pay the Chicago price plus the freight rate to St. Joseph. HELD, com- plainant's trouble did not arise out of the freight, but grew out of the price that it was required to pay for its raw ma- terial. Complaint dismissed. National Mfg. Co. V. A. T. & S. F. Ry. Co., 23 L C. C. 86. (cc) Competition between widely sep- arated factories in common markets is to be encouraged so long as rates are not unlawful. A manufacturer is en- titled to a reasonable rate regardless of any material advantage he may enjoy. Massee & Felton Lumber Co. v. S. Ry. Co., 23 L C. C. 110, 111, 113. (d) No reason why a city should not be accorded the benefit of market com- petition obtaining at nearby points. Chamber of Commerce of Ashburn v. G. S. & F. Ry. Co., 23 I. C. C. 140, 145. (dd) The fact that one set of railroads terminates at the Mississippi River, while a new set begins there, is sometimes said to be a "natural" advantage pos- sessed by towns located along that so- called basing line; but that argument cannot be invoked as against Omaha. The Union Pacific System, which orig- inates more wool than any trans-conti- nental line, terminates at the Missouri River, Omaha and Kansas City. If that system named a rate simply to the end of its line, Missouri River cities would enjoy the same transit privileges with St. Louis and Chicago; but because it sees fit to construct a joint rate to the Mississippi River and Chicago, the towns served by it upon the Missouri River are excluded from the wool business by being deprived of the transit privileges. The mere statement of the fact shows that this form of discrimination is with- out justification and should not be per- mitted. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 170. (e) The Commission cannot reduce a ra-te for purpose of increasing profits of shippers. Equalization of economic con- ditions is no function of the Commission. Bituminous Coal Operators v. P. R. R. Co., 23 L C. C. 385, 391. (ee) Neither carriers nor the Com- mission can lawfully adjust rates to equalize commercial advantages. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 442. (f) It is not the province of the Com- mission to take away advantages due to location. Blodgett Milling Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 448, 451. (ff) Live stock rates inio Oklahoma City and from that point to Kansas City generally are and generally should be higher than live stock rates to Kansas City, since the direct line from point of origin to Kansas City seldom is through the Oklahoma market. In Re Advances on Meats and Packing-house Products, 23 L C. C. 65G, 664. (g) A city is entitled to the advan- tages of its location. Sioux City Term. El. Co. V. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 107. Carstens Packing Co. v. O. & W. R. R. Co., 22 L C. C. 77, 81. (gg) Carriers are not required by law, and could not in justice be required to equalize natural disadvantages, such as location, cost of production and the like, but they may not in any manner what- soever unduly prefer one set of shippers entitled to equal treatment over an- other, or one locality over another. Elk Cement and Lime Co. v. B. & O. R. R. Co., 22 L C. C. 84, 88. (h) Rates from Chicago on vehicles to a considerable part of the South and Southeast were made and largely con- trolled by the direct line, the I. C. R. R., the short line carrier. Defendants elected to meet, via their lines and the various Ohio River and Virginia cities gateways, the rates so made from Chicago and to accord somewhat similarly favorable rate adjustments to other points east of Chi- cago. They refused to accord these rates to traflSc from Toledo to Ohio River crossings and to Virginia cities destined beyond these basing points to the South and Southeast. HELD, that carriers may not select certain points of production 292 EQUALIZATION OF RATES, §3 (hh)— (k) on their own lines and give to them the benefit of rates to permit meeting com- petition of producers located on other lines, and deny similar treatment to other producing centers on their lines that are similarly situated, and to which the same long-established basis of rates applies, and that the practice indulged in resulted in unjust discrimination. Mil- burn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100, 101. (hh) Each community is entitled to a reasonable rate, wh ch should in addition be fairly adjusted with reference to one another. Any locality which remains at a disadvantage after this must sustain that burden, which is due to its location with respect to the business. In Re In- vestigation of Rates on Meats, 22 I. C. C. IGO, 1G3. (i) Complainants attacked the rates upon hard wood lumber from pomts in southern territory to Louisville, Ky., on the grounds that the rates to Mem- phis discriminated against Louisville. It appeared that at Memphis the dealers could take an advantage of the transit privilege by paying the full local rate from point of origin to Memphis and upon reshipment of the lumber to a point north of the Ohio River could pay Ic per 100 lbs. less than the rate from Memphis to point of ultimate destina- tion. Louisville being an Ohio River crossing, pays the full rate up to the river and the rate from the river to the point of destination, because the rates break at the river. Complainants' con- tention was really upon three grounds. First, that from points on the defend- ant's lines the rates to Cairo and to Louisville ought to be the same where the distance is substantially the same. Second, the present rate from Memphis to Louisville is 12c per 100 lbs., and the rate to Cairo 10c per 100 lbs. From certain points south of Memphis on the I. C. and the Y. & M. V. R. R. Co. the differential between Cairo and Louisville is greater than 2c, and complainants contended that from all such points the differential in favor of Cairo ought not to exceed 2c. Third, complainants were subjected to undue disadvantage because a bridge toll of Ic per 100 lbs. is added to the rate from the north bank of the Ohio River to make the rate from Louis- ville, while the other Ohio River cross- ings, Cairo, Evansville and Cincinnati, being on the north bank of the Ohio River, pay no bridge toll on outbound shipments, and on inbound shipment no bridge toll is added to their rates by the southern lines. HELD, that from points on defendant's lines which are equidistant, or substantially so, from Cairo and Louisville, the rates to Louis- ville ought not to exceed the rates to Cairo, and that from other points of origin the difference in rates to Cairo and Louisville should be proportionate with the difference in distance; and that the present relation of rates from points south of Memphis on the I. G. R. R. and on the Y. & M. V. R. R. was not shown to be discriminatory. Norman Lumber Co. V. L. & N. R. R. Co., 22 I. C. C. 239. (ii) Carriers may not haul a partic- ular class of traffic or traffic for a par- ticular community at less than the rates of the service, and recoup themselves from the charges levied against other traffic. In Re Advances in Rates for the Transportation of Freight in Single Packages and Small Lots, 22 I. C. C. 328, 335. (j) It is not the function of the Com- mission to equalize commercial condi- tions or to establish zones of trade or bring markets into competition one with another. If a coal miner in a particular field needs to rely upon the sympathy of his serving carrier or upon its policy with respect to the wisdom of making a low rate in order to secure his traffic or develop his mines or serve a distant territory, his appeal must be to such carrier and not to the Commission. The Commission has no jurisdiction to sub- stitute its judgment as to the wisdom of a certain policy of rate-making for that of traffic officials of railroads. In Re Advances on Coal to Lake Ports, 22 L C. C. 604, 613. (jj) The fact that lack of prosperity among shippers is due to excessive com- petition among them does not justify the imposition of excessive charges, and they are entitled to a reasonable rate, whether it brings the expected result or not, and irrespective of the specific channels into which the amount of the reduction will flow. Boileau v P. & L. E. R. R. Co., 22 I. C. C. 640, 654. (k) Complainant attacked the rate of 88c per net ton on bituminous coal in carloads from the Pittsburgh, Pa., district to Ashtabula Harbor, O., for transship- ment by vessel on the Great Lakes to points beyond. The coal moving over the New York Central lines from the Pitts- EQUALIZATION OF RATES, §3 (kk)— (mm) 293 burgh district to Ashtabula was carried in solid trains averaging G5 cars each of 42 to 44 tons per car. That moving via the Pennsylvania lines moved in train loads of 40 cars, averaging from 40 to 4 4 tons each. The weighted average dis- tance from Pittsburgh district to Ash- tabula is 148 miles. From 1901 to 1911 the rate was increased from 73c to 88c. From 1887 to 1900 the rate fluctuated from 70c to $1. Defendant carrier in transporting the coal in question received the benefit of using the empty cars en- gaged in hauling iron ore from lake points east, thereby removing tTie ex- pense of any back haul of empty cars. Complainant contended that the rates attacked were unjust, as compared with those from the West Virginia coal fields. The distance from the Pittsburgh district and from West Virginia districts of Poca- hontas, Kanawa and Fairmont to Ash- tabula were 160, 434. 400 and 248 miles, respectively, yielding ton-mile revenues of 5.5, 2.G, 2.4 and 3.9 mills respectively. In fixing the rates from these competing mining districts, defendants had prac- tically disregarded distance as well as the fact that the rail competition from the Pittsburgh district to Lake Erie was much greater than that from any of the West Virginia fields. For ten years prior to March 1, 1912, the differentials be- tween these competing field§ were un- changed and under this relation of rates the coal tonnage from the West Virginia mines to the lake ports increased some 885 per cent, while that from the Pitts- burgh district increased only 277 per cent. The cost of mining coal in the Pittsburgh district was more than in the competing West Virginia districts, being from 80c to $1 per ton in the former and from 50c to 60c in the latter. Defendants did not equalize this advantage in rates in its charges on coal shipped to the At- lantic seaboard for transshipment, but on such coal accorded an advantage in rates to the West Virginia mines. The rate of 88c complained of afforded a ton-mile revenue of 5.94 mills under the weighted average distance of 148 miles and ap- proximately 5.87 mills under straight average mileage. The larger and more prosperous carriers engaged in transport- ing the coal under the rates in question were granted dividends between the years 1907 and 1911, ranging from 6 to 18 per cent. The operating expense of trans- porting Pittsburgh coal to Ashtabula was probably less than one-half of the rate of 88c. The evidence indicated that the rate complained of was raised, step by step, not to bring it up to a level which the carriers might have regarded and defended as reasonable, but in order to let certain competing coal fields into the trade. HELD, that the rate complained of was unreasonable and unjust and should not exceed 78c. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640. (kk) The confer tion that there exists no power anywhere to let a shipper into a market by advancing the rate to an- other shipper does not appear to be sound. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 654. (I) Complainant, packing company located at Cedar Rapids, la., at the pro- ducing points for live hogs, contended that the live hog rates to eastern desti- nations were made so as to give eastern packers not located at the producing points commercial equality with com- plainant, tbus depriving it of its natural advantages in location. HELD, a shipper is entitled to a fair, reasonable and non- discriminatory rate on any commodity to any point to which he des'res to ship that commodity, and that there should be a definite relationship between rates based upon transportation considerations and not upon commercial equality. Sin- clair & Co. V. C. M. & St. P. Ry. Co., 21 1. C. C. 490, 507, 508. (II) ^ Commercial conditions are not to be overcome by rate adjustments. East St. F.ouis Cotton 1 Co. v. St. L. & S. F. R. R. Co., 20 I. C. C. 37, 41. (m) The assertion that the Baltimore combinations of rates on vegetables from the Charleston, S. C, truck-growing dis- trict are too high, as they are approxi- mately the same as the rates from Jack- sonville, Fla., on traffic from beyond, while Charleston is about 250 miles nearer the points of destination, is not correct, as the rates from Jacksonville from beyond are substantially the same as or greater than the Baltimore com- binations from Charleston, the Jack- sonville rate being the basing point and simply a haulage charge, the gathering charge being included in the rates up to the base point. League of Commis- sion Merchants v. A. C. L. R. R. Co., 20 I. C. C. 132, 133. (mm) Truck growers in the Charleston district, S. C, complained that the rates exacted by defendants on cabbages, po- tatoes, beans, peas and cucumbers from shipping points in that district to points 294 EQUALIZATION OP RATES, §3 (n)— (x) in Virginia, Maryland, Pennsylvania, New Jersey, New York, Massachusetts and the District of Columbia were dis- criminatory, compared to rates from shipping points in Florida and from Nor- folk, Va. The evidence showed that the rate per ton mile for the longer Florida haul was higher than for the shorter Charleston haul. The rate per ton mile from the shorter Norfolk haul was less than the rate per ton mile from the Charleston haul, owing, how- ever, to the extremely keen water com- petition, which controls the rail rates from Norfolk. The profits per acre to the truck growers of Charleston seem to vary from $3 to $52, while the freight paid on the produce appears to average about $G0 an acre. HELD, that while the risk and hardship of the grower are matters worthy of consideration, they are by no means controlling; that the Florida growers have natural advantages in climatic and other conditions; the Norfolk growers possess such conditions and also extremely satisfactory water service, which the Charleston growers do not have, and under the circum- stances the rates attacked appear to be reasonable. Truck Growers' Ass'n v. A. C. L. R. R. Co., 20 I. C. C. 190. (n) The exhaustion of the supply of raw material near at hand, compelling a manufacturer to go farther afield for his supply, imposes no legal obligation upon the carrier to counteract this re- sult of natural conditions by a reduction of its freight rates. National Refining Co. V. C. C. C. & St. L. Ry. Co.. 20 I. C. C. 649. (o) The mere fact that a sugar fac- tory has the better of its competitors by reason of its proximity to the beet fields and low rates, which it consequently en- joys for the transportation of its raw ma- terial, does not affect its rights to rea- sonable and non-discriminatory rates and proper routing arrangements for the movement of its finished product. Cali- forn'a Sugar Co. v. S. P. L. A. & S. L. R. R. Co., 19 L C. C. G, 9. (p) The Commission is of opinion that justice cannot be done to Nevada unless Nevada points are put on a prac- tical parity with points in eastern Wash- ington and eastern Oregon. Railroad Commission of Nevada v. S. P. Co., 19 I. C. C. 238, 256. (q) The carriers should extend to Phoenix and other points in Arizona commodity rates adapted to the needs of that territory, and in substantial con- formity with the rates made on the same commodities to other intermountain points on lines to the north. Maricopa County Commercial Club v. S. F. P, & P. Ry. Co., 19 I. C. C. 257, 258. (r) Because carriers have constructed a system of rates on a zone or blanket system is not sufficient reason to justify the collection of unreasonable charges to any point. Every city is entitled to the advantage of its location and may not lawfully be subjected to high freight charges merely because carriers for rea- sons of convenience or otherwise in- clude it with a number of other points in surrounding territory, which latter points are not similiarly situated. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 309. (s) The cities of San Pedro and Wil- mington, situated on the harbor of San Pedro, are about twenty-two miles dis- tant from Los Angeles, which is inland. These communities were merged into the city of Los Angeles and connected therewith by a narrow strip of land half a mile in width, locally known as "the shoestring." HELD, while these com- munities have been merged into one mu- nicipality for the purposes of civil gov- ernment and. administration, this does not necessarily merge the two into one community from a transportation point of view. Harbor City Wholesale Co. v. S. P. Co., 19 I. C. C. 323, 331. (t) To adjust rates to correspond- ingly fluctuate with values of products and resultant fluctuations of carrier's risk is impossible. Ponchatoula Farm- ers' Ass'n V. I. X. R. R. Co., 19 I. C. C. 513, 516. (u) Vicissitudes of competition among shippers cannot be compensated for in the freight rate. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 516. (vw) Carriers are not required to equalize by rate adjustments the ad- vantages enjoyed by one coal producing point over another in the matter of cost of production and salability of products. Colorado Coal Traffic Ass'n v. C. & S. Ry. Co., 18 L C. C 572, 576. (x) Geographical disadvantages can- not well be overcome by any proper ad- justment of transportation charges. Acme Cement Plaster Co v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 33. EQUALIZATION OF RATES, §3 (y)— (gg) 295 (y) Proximity of Detroit and Toledo to the great channels of through trans- portation and their location on direct through routes, where density of traffic is very great and general operating and traffic conditions are favorable, are ele- ments that cannot be ignored by the rate maker, and must necessarily tend to lower rates than can be accorded to communities that are removed from these great streams of traffic. Saginaw Board of Trade v. Grand Trunk Ry. Co., 17 I. C. C. 128, 135. (z) A carrier in establishing rates is not bound to make good to the shipper the result of his own folly or misfortune in producing a supply in excess of the demand. Florida Fruit and Vegetable Ass'n V. A. C. L. R. R., 17 I. C. C. 552, 5C1. (aa) A point is entitled to the rate which its location and other advantages dictate, without taking into account con- ditions which bring about lower rates to other points. Board of Trade of Winston- Salem V. N. & W. Ry. Co., 16 I. C. C. 12. 16. (aaa) A basing point is established that all roads might share in the business and all shippers be given opportunity to compete in common markets. Avery Manufacturing Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 20, 23. (bb) Carriers should keep in close touch with commercial conditions per- taining to sales of commodities and the needs of communities, and adjust their charges, when practicable, within rea- sonable limitations to meet those con- ditions and encourage sales and the movement of freight; yet it cannot be held to be a duty of the carrier, in ad- justing charges, to equalize the value of commodities in their final distribution. Chicago Lumber & Coal Co. v. T. S. Hy. Co., 16 L C. C. 323, 331. (cc) When a carrier has established a reasonable rate for transportation of a given commodity it cannot be required to change that rate to accord with the differing values of the same commodity produced by different shippers; in other words, to equalize natural business con- ditions. Hafey v. St. L. & S. F. R. R. Co., 15 I. C. C. 245, 246. (dd) Carriers are not required by law and could not in justice be required to equalize natural disadvantages, such as location, cost of production and the like. Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. 286, 293. (ddd) A carrier cannot lawfully so group its mines with respect of rates as to unduly discriminate against any lo- cality. The duty imposed by law is to give equal treatment to all shippers who are in a position to demand it, and this includes the right to reach competitive markets on relatively equal terms. Where the same carrier serves two districts, which, by their location, the character of their output and distance from mar- kets, are in substantially similar cir- cumstances and conditions, it cannot lawfully prefer one to the other in any manner whatsoever. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C 286, 292. (ee) The manufactured product com- monly takes a higher rate than the raw material. But the maintenance of a parity of rates on wheat and flour tends to equalize conditions at all points at vvh'ch flour-milling industries exist, and seems to be a sound rate policy. Bulte Milling Co. v. C. & A. R. R. Co., 15 I. C. C. 351, 364. (ff) Seattle can command a better rate from eastern territory than Spo- kane. This is a disadvantage of loca- tion under which the city of Spokane rests, and of which it cannot justly com- plain. City of Spokane v. N. P. Ry. Co., 15 L C. C. 376, 419. (gg) In Farmers, Merchants and Shippers' Club of Kansas v. A. T. & S. F. Ry. Co. et al., 12 I. C. C. 351, the Commission held that rates on grain from points in southern Kansas should by a direct route to Galveston and other gulf ports take lower rates than the combination based on Kansas City. De- fendants established such lower rates and applied them as well to points in northern Kansas. The distance from all said Kansas points by the direct line was considerably shorter than via Kansas City. In order for the Santa Fe to take grain over its own lines to Texas or the gulf via Kansas City it would have to haul it nearly 300 miles out of line. The Rock Island, in order to do the same thing, would have to haul out of line about 200 miles. Complainant grain dealers at Kansas City complained of said adjustments as unduly discrimi- natory against them and demanded that the rates via Kansas City and via the direct route should be the same. No evidence of the unreasonableness of the rates into and out of Kansas City was offered. HELD, the direct route was 296 EQUALIZATION OF RATES, §3 (hh)— (mm) more economical and naturally resulted in lower rates; Kansas shippers were entitled to the benefit of their proximity (o the gulf, and the decision in said former case should not be disturbed. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 15 I. C. C. 491, 498. (hh) Consideration must be given to advantages of natural location and de- velopment in readjusting rates. Kindel V. N. Y. N. H. & H. R. R. Co., 15 I. C. C. 555, 561. (ii) Until recent years only big vein coal was mined in the George's Creek Maryland district. This coal becoming exhausted, an attempt was made to mine small vein coal found in the district, and a readjustment of rates was required and asked by complainant, located at George's Creek, in order to enable it to compete with small vein coal from the Pennsylvania and West Virginia dis- tricts. Complainant asked for no adjust- ment of the rating on big vein coal. HELD, that for experimental purposes defendants should segregate the small vein mines from the big vein mines, and that different rates should be allowed for the big and the small vein coal com- ing from the George's Creek district, the big vein rate to remain the same, the small vein rate to be so adjusted as to place small vein coal on a parity with that coming from the Pennsylvania and West Virginia districts, rates to be later revised if actual experience should prove that fraud resulted over the segregation of the small vein from the big vein coal. (Prouty and Lane, Comm'rs, dissenting.) George's Creek Basin Coal Co. v. B. & O. R. R. Co., 14 L C. C. 127, 133. (jj) A rate of 27.5c on yellow pine lumber was charged by defendant car- riers from Little Rock, Fordyce, Rob Roy and Texarkana, Ark., and other points in Arkansas, Louisiana and Texas to Des Moines, la., as against a rate of 23c from that territory to Council Bluffs, la., and Omaha, Neb. For twenty years prior to 1900 defendants charged a rate of 22c from that territory to Des Moines. During the last ten years there was heavy competition at Des Moines be- tween lumber from southern territory and the northwest, making on the whole the competition at Des Moines as great as that at Omaha and Council Bluffs. Omaha and Council Bluffs are both a greater distance from southern territory than Des Moines. Both Omaha and Des Moines have the rails of one carrier ex- tending directly into the southern terri- tory in question. The competition be> tween western and southern lumber had resulted in raising the rate on southern lumber to Omaha only Ic, whereas de- fendants had advanced the rate to Des Moines 5.5c. HELD, the rates in question to Des Moines should be reduced to cor- respond with those to Omaha and Coun- cil Bluffs. Greater Des Moines Commit- tee V. C. G. W. Ry. Co., 14 I, C. C. 294. 297, 298. (kk) It is not possible to place all commercial centers on equality in the cost of transportation, and certain cen- ters must have certain natural advan- tages in this respect if the cost of the service and the distance which goods are transported are to be given any con- sideration in determining transportation rates. Burnham, Hanna, Munger Co. v. C. R. I. & P. Ry. Co., 14 L C C. 299, 303. (11) Where a New York milling com- pany enjoys from the existence of the Erie Canal a natural advantage in water rates inherent in the location of its mill such fact does not militate against its right to demand equal rail rates with western millers on grain shipped by it from the west to be ground in New York and exported. Hecker- Jones- Jewell Mill- ing Co. V. B. & O. R. R. Co., 14 1. C. C. 356, 359. (mm) Defendants allowed on corn shipped from the middle western states to Lewiston and Bangor, Me., milling in transit, under which the millers might ship the manufactured product to points in Washington County, Maine, at the through rate. Complainant millers in Washington County, which lay on the eastern border of Maine, adjoining New Brunswick, had no market to the east for their products. They were com- pelled to pay the through rate from points of origin to their mills plus the local rate from their mills back to con- sumption points west thereof. As a re- sult their market was limited to the im- mediate vicinity of their mills. They at- tacked the milling-in-transit privilege as unduly preferential to competitors at Bangor and Lewiston. HELD, the dis- advantage under which complainants rested was due to their unfavorable lo- cation and the Commission would not overcome that by an adjustment of rates. Complaint dismissed. Quimby v. Maine Central R. R. Co., 13 I. C. C 246, 248. EQUALIZATION OF RATES, §3 (nn)— §4 (1) (d) 297 (nn) The rate on rope from San Francisco to Independence, Mo., was 75c. From San Francisco to Missouri River points, including Kansas City, Carthage and Joplin, Mo., and Fort Smith, Ark., and to Mississippi River common points, Chicago and common points, the rate was 60c.* Independence is located in southeastern Kansas, and is 2,041 miles from San Francisco; Kan- sas City is 2.012 miles; Joplin, 2,12G miles; Fort Scott, 2,111 miles, and Fort Smith, 2,298 miles. The only shipments that might move from San Francisco through Independence were those to Jop- lin and Fort Smith, but no rope was in fact shipped to these points. The 60c rate was established to place San Francisco as a producing point on an equality with New York in the sale of rope in the ter- ritory to which the 60c rate applied. Prior to the establishment of the 60c rate from San Francisco the rate from the east to the selling territory was lower than from the coast. Independence ^ as not included in Missouri River common points territory. In like manner, prior to the establishment of the 75c rate at- tacked at Independence the rate from east- ern producing points to Independence was lower than that from the coast and the 75c rate was established to enable San Francisco, as a producing point, to com- pete with eastern producing points in the sale of rope at Independence. This 60c rate, plus the local rates from points to which it applied to Independence, was in excess of the 75c rate, so that com- plainant dealer at Independence suffered no competition in his territory from points taking the 60c rate. The per ton mile revenue on the rate attacked was 7.34 mills, which was lower than the average earnings of the leading western lines. HELD, that the rate attacked was not shown to be unreasonable per se; that it was not in violation of the long and short haul clause of section 4; and that it was not unduly discriminatory against Independence. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 L C. C. 56, 64. (oo) Complainant shipped lumber via an indirect route with class rate. This rate was subsequently reduced to meet a commodity rate in effect via direct route. Reparation cannot be predicated upon reduction of the rate via the in- direct route to meet the rate via the short line. Willson Bros. Lumber Co. v P. S. & N. R. R. Co., Unrep. Op. 375. (pp) It is not incumbent upon carrier to equalize the disadvantage of location and two-line haul by the absorption of the foreign line's entire rate to the junc- tion. Great Western Portland Cement Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 454. §4. Competition. See Competition. §4. (1) In General. (a) A carrier may voluntarily accept lower rates than it can be required to accept, and whether or not a carrier will meet competitive conditions at a particular point rests primarily with it. But this principle does not relieve the carrier from the obligation to remove un- lust discrimination created by meeting competitive conditions at one point and refus'ng to meet them at a neighboring noint. Chamber of Commerce, Ashburn. Ga., V. G. S. & F. Ry. Co., 23 L C. C. 140, 149. (b) Competitive influences may bring about an equalization of rates on traffic to a certain defined territory which is not accorded as to any other territory; ^nd unless unjust discrimination results the carriers are w'thin their rights in maintaining such an adjustment. In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 1. C. C. 195, 207. (c) Strictly speaking there is no such thing as market competition which is iistinct from compet'tion between the lines of transportation serving the mar- ket. A market can only compete through the agency which transports for it. The carrier makes a rate from a given mar- ket not out of favor to that locality, but because it desires to obtain traffic which will not otherwise come to it. There would seem, therefore, to be little distinc- tion between the competition of markets and the competition of rival railroads. City of Spokane v. N. P. Ry. Co., 21 T. C. C. 400, 414. (cc) It is unjust to fix rates so as to destroy the business of one concern and create a monopoly in favor of other con- cerns, though it be merely incidental to meeting competitive rate. Spiegle & Co. V. S. Ry. Co., 19 I. C. C. 522, 525. (d) A carrier may for competitive reasons establish a rate lower than it could justly be compelled by the Com- mission to establish. Breese-Trenton Mining Co. v. W. R. R. Co., 19 I. C. C. 398, 600. 298 EQUALIZATION OF RATES, §4 (1) (e)— §4 (2) (b) (e) The principle that there should be substantial parity between rates on wheat and on flour all-rail should be ap- plied to lake-and-rail rates as well. Jen- nison Co. v. G. N. Ry. Co., 18 I. C. C. 113, 124. (f) What a carrier may do to meet competition is one thing and what it ought to be compelled to do is another thing. Frederich & Kempe Co. v. N. Y. N. H. & H. R. R. Co., 18 I. C. C. 481, 484. (g) Because on account of competi- tion the same rates are accorded com- peting localities to particular points no reason exists why they should have the same rates to other points where compe- tition is not a factor. Colorado Coal Traffic Ass'n v. C. & S. Ry. Co., 18 I. C. C. 572. (h) The Commission cannot order rates from Coffeyville, Kan., to Memphis to meet those voluntarily established by other carriers from points east of the Mississippi to Memphis, National Pe- troleum Ass'n V. M. P. Ry. Co., 18 I. C. C. 593, 595. (1) Competition that may be consid- ered in proper cases not only includes competition of carriers, but also that of the commodity produced in another sec- tion and sometimes competition of one kind of traffic with another kind. Met- ropolitan Paving Brick Co. v. A. A. R. R. Co., 17 I. C. C. 197, 203. (j) It is the duty of railroads to es- tablish reasonable transportation charges and in so doing competitive conditions must be considered, but it is not their duty to make good to the producer the result of his own folly or misfortune. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 561. (k) The Commission should not be understood as holding that a railroad must under all circumstances meet the rate of it^ competitor. North Bros. v. C. M. & St. P. Ry. Co., 15 I. C. C. 70, 71. (kk) A carrier may voluntarily make, under the force of controlling competi- tion, rates which it might not be required to make. Indianapolis Freight Bureau v. P. R. R. Co., 15 I. C. C. 567, 576. (1) Competition in commodities alone is not a circumstance that will entitle a selling point to have an already low rate made still lower to equal one at a more distant point, which was made to meet competition of carriers and of rates as well as of markets and products. Bo- vaird Supply Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 64. §4. (2) Railroad Competition. See Evidence, §47; Rate via Compet- ing Line; Reasonableness of Rates, §2 (a). ^ (a) Complainants shipped carloads of scrap iron from Walcottville, Ind., via Montpelier, O., to Ft. Wayne, Ind., a distance of 89 miles, under a rate of $1.25 per gross ton. At the same time, via an equally available route by a competing line which had a haul of only 35 miles, a ratio of 85c per gross ton was in effect, which defendant subsequently reduced its rate to meet. No evidence was submitted of the unreasonableness of the rate per se. Complainants submitted testimony tend- ing to show that before shipments were made defendant quoted to complainants the same rate as that of the competing line. HELD, if the shipper desires the benefit of a rate published by a partic- ular carrier it is incumbent upon him to tender his traffic to such carrier, and failing to do so he cannot expect the Commission to award reparation merely for the purpose of equalizing the rate he was compelled to pay with the lower rate of the competing line, which he might have used. The fact complainant was quoted an equalized rate can afford no relief inasmuch as the rate shown by the tariff in force at the time was the only rate that coujd be lawfully applied. The fact that there was at the time the shipment moved a lower rate via a com- peting line is not of itself proof that the rate charged was unreasonable, nor can the fact that after the shipments were made the defendant reduced its rates to the level of the rate via the competing line be accepted as sufficient ground for an award of reparation. The mere re- duction of a rate by a carrier, especially when induced by competition, as seems to have been the case here, is not of itself evidence that the former rate was un- reasonable. Complaint dismissed. Simon Cook V. Wabash R. R. Co., 21 I. C. C. 503, 564. (b) Complainant shipped cement from Tola. Tex., to Comanche, Hasse, Brady and Stephensville, Tex. Shipments moved over the M. K. & T. R. R. and F. W. & R. G. R. R. Lawful combinations were assessed. At the same time there was a through route via; the Santa Fe and the F. W. & R. G. R. Rs., with a joint rate less than the combination charged. EQUALIZATION OF RATES, §4 (2) (c)— (h) 299 The joint rate was known to complainant. No evidence was offered that the rate assessed was unreasonable and the only- reason suggested for giving the traflBc to the M. K. & T. R. R. was an alleged as- sumption that the latter road would be able to "protect" the rate published over another route. HELD, it to be obvious that such a state of facts cannot be made the basis of an award of reparation under the Act, as such a result would be in substance an entire perversion of the fundamental provision of the statute In. respect to the publication of rates and adherence thereto. lola Portland Cement Co. V. M. K. & T. R. R. Co., 20 I. C. C. 91. (c) Complainants shipped three car- loads of brick, Augusta, Ga., to Calhoun Falls, S. C, which had to move via Southern R. R. to Greenwood, S. C, tnence Seaboard Air Line to Calhoun Falls, a total haul of 195 miles, under a rate of $2.40 per 1,000 brick. Subse- quently this rate was reduced to $1.40. At time of shipment a rate of $1.40 was in effect between the same points via the Charleston & Western Carolina R. R., a distance of sixty-eight miles. Rep- aration is asked of $1.00 per 1,000 brick. HELD, that a carrier with a long route is not obliged, as a matter of law, to meet the rate of its short line com- petitors, and the reduction of a rate ap- plicable via a long route to meet the rate in effect via a shorter and more direct one is not of itself conclusive evidence of the unreasonableness of the higher rate. Reparation denied. Georgia-Carolina Brick Co. v. S. Ry. Co., 20 I. C. C. 148, 149. (d) Complainant attacked as unjust and unreasonable of themselves defend- ant's rates on grain from certain points on their respective lines in South Da- kota, Minnesota and Iowa to Omaha and South Omaha, Neb., and Council Bluffs, la., as compared with rates from the same points of origin to other grain mar- kets of which Minneapolis was the most important. The real and important question was whether or not defendants should be required to establish rates in the territory in question to Omaha on a basis of like rates to like distances as compared with their rates from same points to Minneapolis. The desire of Omaha dealers was to have grain shipped to Omaha, not particularly for milling or consumption at that point, but for re- shipment to eastern and southern points. HELD, that the rates to Minneipolis are strongly influenced or controlled by com- petitive conditions, which do not like- wise affect the rates to Omaha. The in- terests of the Minneapolis lines which do not also reach Omaha, as well as the demands of the milling interests at Min- neapolis, create conditions which as to the rates and transportation to Min- neapolis are substantially dissimiliar from those which apply to the rates and the transportation to Omaha. Omaha Grain Exchange v. C. & N. W. Ry. Co., 19 I. C. C. 424, 433. (e) The rate on agricultural implements from Springfield, HI., via Peoria to Mis- souri River points may be lower than from Peoria to those points where the Peoria carriers meet the Springfield rate established by the short line carrier from Springfield in order to secure a share of the business. Avery Mfg. Co. V. A. T. & S. F. Ry. Co., 16 I. C. C. 20, 2=^. (f) Because the delivering carrier sees fit to state that it will protect a rate made by its competitor, but fails to do so, the Commission cannot hold such lower rate is necessarily reason- able. DeCamp Bros. v. So. Ry. Co., 16 I. C. C. 144, 145. (g) The Commission cannot order a reduction of rates on paper stock in order to enable defendant carrier to meet competition, as railroads are au- thorized to meet or not to meet com- petition as to them seems to their in- terest. La Salle Paper Co. v. M. C. R. R. Co., 16 I. C. C. 149, 150. (h) On two shipments of cotton, 100 bales each, from Marshall, Tex., to Bid- deford. Me., complainant was assessed the combination class rate of $1.72, made up of $1.37 from Marshall to East St. Louis, and 35c thence to Biddeford. The bills of lading issued by the initial car- rier specified a rate of 95c and were marked "Rates guaranteed." Commodity rates were at the time of shipments in effect via another route. Subsequent to the time of movement, defendant, initial carrier, joined in tariffs, fixing rates be- tween the points in question at 97c, all- rail, and 95c via the gulf ports. HELD, the rate charged was unreasonable with respect to the haul from East St. Louis to Biddeford, and the rate for this por- tion of the entire haul should not have exceeded 60c. Reparation awarded on the basis of 95c. Pepperell Mfg. Co. v. T. S. Ry. Co., 16 I. C. C. 353, 355. 300 EQUALIZATION OF RATES, §4 (2) (i)— (n) (i) On a shipment of pickles in car- loads from Ottumwa, la., to Kansas City, Mo., defendant assessed its lawfully ap- plicable fifth class rate of 22c. At the same time a commodity rate of 14i^c was In effect over another line. Shortly after the shipment in question defendants met this 14i^c commodity rate. HELD, the rate charged was unreasonable. Repara- tion awarded on the basis of 14i^c. Ot- tumwa Pickle Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 3G8. (j) The Commission cannot accept the theory that one carrier's rate is un- reasonable simply and solely because another carrier had at the time a lower rate. What is reasonable for one carrier may not be reasonable for another. Swift & Co. V. C. & A. R. R. Co., 16 I. C. C. 426, 429. (k) The carrier whose lawful tariff rate is higher than that of a competing line has no right to solicit or accept ship- ment with the understanding or expecta- tion that an order of reparation will be sought at the hands of the Commission for the purpose of equalizing to the ship- per a rate which he could have se- cured by giving his shipment to another carrier. Swift •.. Co. v. C. & A. R. R. Co., 16 I. C. C. 426, 430. (1) On ground iron o-re in carloads from Iron Ridge, Wis., to Michigan City, Ind., and from Iron Ridge to Louisville, Ky., the rate via C. M. & St. P. R. R. from Iron Ridge to Milwaukee was 5c and from Milwaukee to Michigan City via the P. M. R. R. 8l^c and from Mil- waukee to Louisville 15c, making the Milwaukee combination to Michigan City 13l^c and to Louisville 20c. The joint through rate from Iron Ridge to Michigan City via Mil- waukee and the P. M. R. R. was 21i/^c, and to Louisville 25 1/4 c. The rate from Iron Ridge to Michigan City via Chicago by the C. M. & St. P. R. R. and the Mo- non Ry. was the same as via Milwaukee, 211/^c, but the combination via Chicago was 18c. Complainant delivered a ship- ment to the C. M. & St. P. R. R. without routing instructions except verbal direc tions to forward by the cheapest route. The agent forwarded same via Chicago and the Monon. At the time of hearing the only rate in effect to Michigan City was the combination rate of iSi^c via Milwaukee, and IGV2C via Chicago, HELD, since the lowest rate lawfully applicable from Iron Ridge to Michigan City was that via the route over which the shipments actually moved, repara- tion must be awarded upon the rate deemed by the Commission reasonable via that route, and the carriers should not be forced to meet the lower rate cov- ering the shorter haul via the P. M. R. R. Reparation awarded on the basis of the 161/^0 rate in effect at the time of the hearing, via Chicago. On the ship- ment to Louisville reparation awarded on the rate in effect at the time of the hearing made on Milwaukee combination, viz., 14.82c. Winters Metallic Paint Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 562, 563. (m) Complainants delivered to the M. K. & T. Ry. Co. at Tupelo, Okla., one carload of corn without routing instruc- j tions, destined to Forest City. Ark. There was via the O. C. Ry. in connec- I tion with the C. R. I. & P. Ry. a joint rate of 17i/^c between these points that would have applied if the shipment had been delivered to the O. C. Ry. at Tupe- lo. The M. K. & T. Ry. routed the ship- ment via McAlester instead of via Le- high, a nearer point on its line from the point of origin, and subjected the ship- ment thereby to a higher rate than via Lehigh. HELD, complainants were not entitled to reparation on the basis of the nVzC rate, since where there are two o-r more lines with different rates between two points a shipper is not entitled to secure the application of the lowest rate by either of such lines regardless of which one he uses, but the law requires each carrier to adhere to its own estab- lished rate. Reparation awarded on the basis of the rate via Lehigh. Hill & Webb V. M. K. & T. Ry. Co., 16 I. C. C 569. (n) On bituminous coal in carloads ihipped in Nov^ember, 1906. from Grafton, W. Va., to Kalamazoo, Mich., via the B. & O. and the M. C. R. Rs., a rate of $1.90 per net ton was collected. For several years prior to June 25, 1906, the rate from Grafton to Krlamazoo on all routes in connection with the B. & O. R. R. was $1.90. The distance via Wil- low Creek, Ind., the route over which the shipments in question moved, was 640 miles. Over other routes in con- nection with the B. & O. R. R. the dis- tance varied from 500 to 550 miles. In June and July, 1906, the $1.90 rate was reduced to $1.85 via all of the routes except those via Willow Creek, Ind., and EQUALIZATION OF RATES, §4 (2) (o)— (s) 301 Sherwood, O. On Jan. 11, 1907, the $1.85 rate was applied to these two routes. The above reductions were made to meet the competition of ex-river coal brought down the Ohio River. The $1.90 rate a£tacked produced over the 640 miles route less than 3 mills per ton mile. No other evidence of the unreasonableness of the charge collected was offered. HELD, the $1.90 rate collected was not shown to be unreasonable. The volun- tary reduction of a rate does not carry with it a conclusive presumption that the prior rate was unjust or unreasonable. A carrier with a long route is not obUged as a matter of law to meet the rate 'of a shorter competitor. Neither is a carrier via a long route obliged as a matter of law to reduce its rate because its short line competitor reduces a rate which has been the same via both routes. Com- mercial Coal Co. V. B. & O. R. R. Co., 15 I. C. C. 11, 14. (o) Whatever may have been the practice in the past of "meeting the rate," tariffs must now be adhered to. Menefee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. 49, 51. (p) Defendant exacted on carloads of canned peaches from Atlanta, Tex., to Chicago and Kansa:: City the class rates of 82c and 75c, respectively. Prior to the shipment complainant intended to ship via another initial carrier and another route taking rates of 61c and 58c, respectively. Upon representation of defendant's agent that his road would extend the same rate, complainant ship- ped over said road. Shortly after t}\e shipment moved defendant established commodity rates on the articles in ques- tion of 58c and 51c to Chicago and Kan- sas City. Complainant attacked said re- duced rates as unreasonable and demand- ed reparation on the basis of 54c and 50c. No proof was offered except a ref- erence to rates on canned goods in other quarters of the country where the traf fie conditions were not the same and to rates in other territories on potatoes, lumber, salt, molasses, soap, paint and other products. Ignoring the group sys- tem of rates from Texas common points, complainant pointed out that said 58c and 51c rates were applied from points in Texas 400 miles more distant than Atlanta to the destinations in question. HELD, said 58c and 51c rates were not shown to be unreasonable; that the rates exacted were unreasonable; and that reparation should be awarded on the basis of 58c and 51c. Godfrey & Son v. T. A. & L. Ry. Co., 15 I. C. C. 65, 67. (q) Complainants' elevator at Celina. Ohio, was situated on the C. & N. R. R. and corn was usually routed via that line and its connections from Celina to Johns- town, Pa. The shipment in question was tendered to the L. E. & W. R. R. at Ce- lina and carried at the legally published rate of 14c. The rate over the other two lines serving Celina was 12c. No evi- dence of the unreasonableness of the 14c rate was offered except this fact and the fact that at various other dates the L. E. & W. R. R. had lower rates in effect than 14c, but it appeared that except in emergencies little grain was shipped be- tween the points in question over the L. E. & W. R. R. HELD, the rate charged was not shown to be unreasonable. Palmer & Miller v. L. E. & W. R. R. Co., 15 I. C. C. 107, 108. (r) For seven years defendant bad maintained a rate of 12c per 100 lbs. on uncompressed cotton from Vincent, Ark., 15 miles from Memphis, to Memphis, out of which rate it paid a bridge arbitrary of 2c and drayed the cotton from its Memphis terminals to its sheds at an expense of 3c. Defendant increased the rate to 25c and continued to absorb the bridge arbitrary but not the cost of dray- age. Other carriers for similar distances were maintaining rates to Memphis about as low as the old 12c rate from Vincent, but said rates were the result of wagon competition which did not ap- ply at Vincent. Defendant was obliged to carry insurance on the cotton; was subjected to large claims for damages; and carried a risk of injury to the cot- ton by dampness. Defendant received only a small portion of the outbound haul of said cotton. HELD, said 25c rate was unreasonable and should be reduced to 15c to correspond with rates from other points of origin similar distances from Memphis west of the river. Reparation awarded. Barton, Reisinger, Davis Co. v St. L. L M. & S. Ry. Co., 15 I. C. C. 222, 225. (s) Complainant attacked the rate on stone in carloads of $1.60 from East Branch, N. Y., to Weehawken, N. J., a distance of 150 miles. For ten years prior to Oct. 22, 1907, defendant N. Y. O. & W. Ry. maintained a rate of $1.40, which was raised on that date to $1.60. 302 EQUALIZATION OF RATES, §4 (2) (t)— (v) The L. V. R. R. at the time of the hear- ing maintained a rate of $1.35 on stone to Jersey City terminals from points on its line 250 or more miles distant, and the D. L. & W. R. R. maintained a rate ot from $1.25 to $1.35 to the same desti- nations from points on its line from 166 to 179 miles distant. The Erie R. R. maintained rates of $1.40 from points on its line from 141 to 154 miles distant. The quarries reached by these different lines were in the same general territory and were in competition with complain- ant. The only defense for the increased rate in question offered by defendant was the increased cost of labor and material, but defendant failed to show that such increase was not offset by other econo- mies, better management, and larger traffic. The rate complained of yielded over Ic per ton mile, whereas the former rate yielded 9.33 mills. HELD, in view of the fact that defendant voluntarily maintained the $1.40 rate for a number of years and that lines in the same gen- eral district voluntarily maintained at the time of the hearing lower rates for longer hauls, the $1.60 rate complained of was unreasonable to the extent that it exceeded $1.40. Shippers' & Receivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. 264, 268. (t) Defendants' rate from Montgom- ery to Meridian on fertilizer was $1.40 per ton, and to this was added an arbi trary of $1.00 from Meridian to stations located on the line leading to Vicksburg and New Orleans. A blanket rate was thus established for the first sixty miles from Meridian. The local rates estab- lished by the Mississippi Railroad Com- mission from Meridian to points on the line leading from Meridian to Vicksburg and New Orleans added to the $1.40 rate from Montgomery to Meridian were less than the through rate of $2.40 from Mont- gomery. HELD, the through rate of $2.40 was unreasonable as exceeding the combination of local rates, and through rates from each fertilizer plant should be established to various points which should be inherently reasonable without special reference to competitive condi- tions. Montgomery Freight Bureau v. W. Ry. of Ala., 14 L C. C. 150, 152. (u) The owners of mines in com- plainant association operate in a field ex- tending from Fort Smith, Ark., to Coal- gate, Okla., and ship coal from that field to various points in Texas and Louisiana over the four defendant railroads inter- secting the coal field. With few excep- tions, the rate complained of to each of 78 destinations in Texas and Louisiana was the same from all points in the field without respect to the route or distance covered by each of defendant carriers. The rate to Denison, Tex., was, for ex- ample, $1.50 per ton over all roads, though the distance varied from 87 to 254 miles. The average earnings to said points vere six mills per ton on lump coal and 5.77 mills on slack coal. A lower rate per ton mile was charged by some of defendants from said Okla- homa-Arkansas coal field to points in Kansas, Nebraska and other states, and from Kansas and Iowa coal fields to points in Kansas, Nebraska and Okla- homa. Some of the defendants partici- pated in the carriage of coal from Illinois fields to pomts in Iowa, Il- linois, Minnesota and Missouri, and from Alabama fields to points in many states. On such shipments the average rate per ton mile was lower than the rate to the Texas and Louisiana points in question. It appeared, however, that the rates to all north- ern coal fields were the result of sharp competition. Said Oklahoma-Ar- kansas coal mines had a practical mo- nopoly of the Texas coal trade and de- fendants a virtual monopoly of the transportation. After the filing of the complaint defendants voluntarily reduced their rates so as to reduce the average rate per ton of coal from $2.82 to $2.44. The revenue derived by defendants from coal under the rates attacked exceeded that derived by them on cotton in the same territory. HELD, the rates at- tacked were too high and should be re- duced to a schedule based by the Com- mission on the rates charged by the de- fendant railroads having the shortest hauls between given points. Okla. & Ark. Coal Traffic Bureau v. C. R. I. & P. Ry. Co., 14 I. C. C. 216, 220, 221. (v) The distance from Jacksonport, Ark., to East St. Louis, 111., is some 425 miles over the Rock Island line, and some 265 miles ove/ the Iron Mountain line. A former rate over both lines on walnut logs in carloads was lli/^c. Later the rate was raised to 17i^c. In another proceeding against the Iron Mountain thi« rate was held unreasonable and the lli/^c rate prescribed. When complain- ant established its business at Jackson- port the former lll^c rate was in force. EQUALIZATION OF RATES, §4 (2) (w)— §4 (4) (h) 303 HELD, defendant Rock Island line would not be ordered to maintain the lli/^crate of the Iron Mountain on account of the longer haul, but should be ordered to maintain a I4i/^c rate to East St. Louis. East St. Louis Walnut Co. v. C. R. I. & P. Ry Co., 14 L C. C. 575, 576. (w) It does not follow that because one railroad, as a matter of policy, ex- tends a low rate for a special service, all its connections must be held to an extension of the same policy and rate. Topeka Banana Dealers' Ass'n v. St. L. & S. F. R. R. Co., 13 L C. C. 620, 631. §4. (3) Rall-and-Water Competition. (a) The Commission is hardly pre- pared to find that discrimination neces- sarily results from the fact that an all- rail carrier meets the rate of a compet- ing lake-and-rail rate. Board of Trade of Chicago v. A. C. R. R. Co., 20 I. C. C. 504, 509. (b) Water and rail competition may justify lower charges to one point than to another. Columbia Grocery Co. v. L. & N. R. R. Co., 18 L C. C. 502, 507. §4. (4) Water Competition. See Competition; Evidence, §14 (5). (a) A shipper cannot compel a rail carrier to meet the rate of a competing water line. Cohen & Co. v. Mallory Steamship Co., 23 I. C. C. 374, 377. (aa) If one city is on the water and can operate boats to another city, it has an advantage which the rail carriers be- tween the same points may recognize without violating the prohibition against undue preference against intermediate cities. So if the water points at one end of the line are grouped, the water points at the other end of the line should be likewise grouped or the influence of the water recognized. In Re Application of the Southern Pacific Co., 22 I. C. C. 366, 375. (b) That carriers are at liberty to meet water competition in whatever way and at whatever point and to whatever extent they see fit cannot be admitted. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 168. (c) Carriers need not wait until ac- tual water competition becomes formid- able before they may safely adjust their rates to meet it. Kentucky Wagon M'f'g Co. v. I. C. R. R. Co., 18 I. C. C. 360, 363. (d) Rail carriers from Grand Rapids ought not to be required to make rates to meet water competition or to equal- ize for complainant advantages of a business rival which moves its products to Chicago by its own water line. Ac- me Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30. (e) The location of a water point does not entitle it to lower rates by rail, although such preference may lawfully be accorded by a carrier in the protec- tion of its own interests. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 87. (f) A water port is entitled to what- ever advantage it can obtain through transportation by water, but its location does not entitle it to lower rates by rail. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 87. (ff) Carriers may, for the purpose of meeting water competition, make rates lower than would otherwise be justifiable, even to the extent of charging a less rate to the more distant point. The car- rier may determine for itself whether it will or will not meet such water competi- tion. While, however, the carrier may in the first instance settle its policy in this respect, it must act under certain limitations. It cannot be permitted to compete at one point and decline to compete at another, where all conditions are the same; nor should it, ordinarily, be allowed to compete one day and de- cline to compete the next. The public has the right to require equal and uni- form treatment within the bounds of reason. Cases might therefore arise where the Commission would require the continuance of a rate established to meet such competition. Darling & Co. v. B. & O. R. R. Co., 15 L C. C. 79, 87. (g) Railroad cannot set up any imagi- nary water competition. But where a water competition exists that could readily take all the tonnage offered, no reason why rail line may not meet the competition. Bulte Milling Co. v. C. & A. R. R. Co., 15 L C. C. 351, 359. (h) The first class rate per hundred pounds from Atlantic seaboard territory over defendants' lines to Missouri River cities was $1.47, while the first class rate to the Twin Cities (St. Paul and Minne- apolis), via Chicago, was $1.15. The other class rates were in proportion. The distances from the seaboard to the Twin Cities and to Missouri River cross- 304 EQUALIZATION OF RATES §4 (4) (i)— (k) iiigs were substantially the same. Com- plainants, jobbers principally in drygoods In Missouri River cities, claimed these rates were unjustly discriminatory against themselves and in favor of Twin City jobbers. The rates from the sea- board to Missouri River cities were made up by taking the Mississippi River as a basing line, adding to the through rate to Mississippi River cities the local rate from Mississippi River crossings to the Missouri River crossings. For example, the first class rate to Missouri River cities was made up by adding the 87c rate to Mississippi River cities to the local 60c rate from thence to Mis- souri River cities. The 87c first class rate from the seaboard to Mississippi River cities was proportioned as follows: From New York to Chicago 72.3c, from Chicago to Mississippi River cities 14.7c. The local rate from New York to Chicago was 75c. The $1.15 rate from New York to the Twin Cities was made up by adding the 75c local rate from New York to Chicago to a 40c ratfe from Chicago to the Twin Cities. The local rate from Chicago to the Twin Cities was 60c. The traffic from New York via Chicago to Twin Cities was subject to the severe competition of Canadian railways and of water trans- portation, and experience showed that the carriers were unable to maintain a higher proportional rate from Chicago to Twin Cities than 40c. In traffic from Chicago to Texas points the carriers be- tween Chicago and Kansas City received 47.1c out of the total charge of $1.57. On traffic from the Atlantic seaboard to Pa cific Coast terminals the carriers west of Chicago received as their division of the class rates for the haul between Chi- cago and Missouri River crossings 33c. It appeared that the Twin Cities had a natural competitive advantage with re- spect to freight rates in Minnesota, North Dakota, northeastern South Dakota and Canadian territory, while the Missouri River cities had similar advantage in Complainants insisted that the Mississip- territory to the west and southwest, pi River should no longer be used as a basing line in fixing rates, and that the territory between the Mississippi and Missouri rivers had so developed as to •require it to be treated in the matter of rates in the same manner as that lying east of the Mississippi River. They fur- ther asked that the rates from the sea- board to Missouri River crossings be lowered to equal the rates to the Twin Cities. HELD, the seaboard rates to Missouri River crossings should not be lowered to equal the rates to the Twin Cities on account of water competition at the latter point; that on account of the difference in development in popula- tion between territory east of the Missis- sippi River and west of the same, the Mississippi basing line should be preserved; but that the local rates from the Mississippi River Jo the Missouri River were excessive, when added to the rate from the seaboard to the Mississip- pi River, in fixing the joint rate from the seaboard to Missouri River towns, and these rates should be reduced with respect to first class from 60c to 51c. and other class rates in proportion. Burn ham, Hanna, Munger Dry Goods Co. v. C. R. I. & P. Ry. Co., 14 I. C. C. 299, 311- 313; sustained, L C. C. v. C. R. L & P. Ry., 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946, holding the Commission's order not invalid, as alleged, as being confis- catory, as attempting to create artificial zones tributary to certain trade centers, or as destroying the system of rates long sxisting, overturning the equality of op- r»ortunity in competition, and substitut- ing an artificial system resulting in special advantages in rates to special sections, reversing 171 Fed. 680, 683, en- joining the Commission's order. (i) Carriers cannot be compelled, as a matter of law, to meet water competi- tion; they do it of their own volition, or whenever the same is potent enough to compel them to do so in order to secure the traffic. In each instance the car- rier determines for itself whether such water competition has sufficient influence on the traffic to make it reduce its rates. Bainbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. (j) There may be water competition at each of two points, and yet a differ- ence in rates to those points may be justified. Bainbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. (k) Complainant jobbers at Gallatin, Tenn., attacked the rate of 31c on sugar in carloads, New Orleans, La., to Galla- tin, as compared with the rate of 15c to Nashville, Tenn., 20c to Bowling Green, Ky., and 17c to Louisville. All four points are located on the main line of the L. & N. R. R. Gallatin is 31/2 mile3 from the Cumberland River; Nashville EQUALIZATION OP RATES, §5 (a)— (c) 305 being on it; Bowling Green is one mile from the Barren River, which reaches the Ohio River via the Green River; Louisville is on the Ohio River. The popu- lation of Gallatin is 2,500; Bowling Green, 8,500; Nashville, 85,000; and Louisville, 250,000. From New Orleans, Nashville is 626 miles; Gallatin, 052 miles; Bowling Green, 697 miles; Louisville, 811 miles. Shortly before the hearing the rate to Bowling Green was reduced from 25c to 20c to meet water competition. The rates at Louisville were controlled by competition with St. Louis and sugar producing points on the ' Atlantic sea- board. The water competition at Nash- ville was potential rather than actual, and the 15c rate was much lower than that at which sugar could be carried by water at a profit. The rates from Gal- latin to points on the L. & N. R. R. be- tween Nashville and Bowling Green were the same for similar distances as from Nashville, but the combination rates based on Nashville from New Orleans to points which were naturally tribu- tary to Gallatin, on account of their closer proximity to that place, were ma- terially less than the combination rates from New Orleans to the same points based on Gallatin. Under the rate at- tacked Bowling Green jobbers could suc- cessfully compete in territory contigu- ous and naturally tributary to Gallatin. The rate of 16c from Nashville to Gal latin was available to Nashville jobbers on less-than-carloads, so that the Nash- ville dealer could retail sugar in Galla- tin at the same freight rates at which the Gallatin dealer received his supply in carload quantities. HELD, the former 25c rate to Bowling Green, not being forced by water competition, should be applied to Gallatin so as to enable the wholesale dealer at Gallatin to reach ad- jacent towns on an approximate basis of equality. Reparation awarded. Payne- Gardner Co. V. L. & N. R. R. Co., 13 I. C. C. 638, 643. §5. Low State Rate. See Discrimination, §1 (ee), §11; Evi- dence, §13 (6) (a), (c); Express Companies, §1 (g); Long and Short Haul. §9 (m); Procedure Be- fore Commission, §11 (h); Reason- ableness of Rates, §3 (a), (e>. (i); Througin Routes and Joint Rates, §15 (aaaa). (a) Where state rates have been fixed at an unduly or unreasonably low figure, there is a forum in wjiicli to test that question, and until such test has been in- voked, it cannot be recognized as proper to "neutralize" the reduction in state rates by increases in interstate rates. Commercial Club of Omaha v. Anderson & Saline River Ry. Co., 18 I. C. C. 532, 536. (b) On a carload of cedar insulator pins from Marble Falls, Tex., via McNeil and Denison, Tex., to St. Louis, a rate of 46c was assessed. Had the shipment moved to McNeil, Tex., and thence over another line than the one employed, the through rate would have been the same, but by said latter route the intrastate rate from the point of origin to McNeil was 12c, fixed by the Texas Railroad Commission, and the interstate rate from McNeil to St. Louis was 23c, mak- ing a total of 35c. No routing instruc- tions were given. The carriers by the latter route had not entered into any joint route and had agreed on no division of rates. No other evidence of the un- reasonableness of the rate attacked was offered. HELD, said rate of 46c was not shown to be unreasonable. Marble Falls Insulator Pin Co. v. H. & T. C. R. R. Co., 15 L C. C. 167, 169. (c) Complainant asked for a reduc- tion of rates on petroleum and its prod- uts from Mason City, la., to Worthing- ton. Wells and Taopi, Minn., and to Led- yard, la. (shipments to the last men- tioned point traversing Iowa and Minne- sota). Such reduction was asked on the ground that the state commissions of Iowa, Minnesota and Nebraska had pre- scribed fourth class rates to apply on less-than-carload shipments of oil be- tween intrastate points, whereas defend- ants were charging on intrastate ship- ments the third class rate. It appeared these state commissions established the fourth class rate for the purpose of meet- ing competition with the Standard Oil Company and did not declare the third class rate unreasonable; and that the third class rate was in force in the terri- tory covered by the Official and Southern classifications. About 25 per cent of the oil out of Mason City went north and most of it was unloaded before reaching the Minnesota line. Complainant offered no evidence to show that the third class rates on petroleum and its products in Western Classification territory generally were unreasonable and none to show the peculiar conditions respecting shipments between the points in question. HELD, 306 EQUALIZATION OF RATES, §6 (a)— (i) the complaint should be dismissed. Mar- shall Oil Co. V. C. & N. W. Ry. Co., 14 I. C. C. 210, 213-214. §6. Preference of Markets. See Reasonableness of Rates, §12'/2. (a) A carrier has no right to deprive the shipper of any market that other- wise would be open to him. Van Natta Bros. V. C. C. C. & St. L. Ry. Co., 23 I. C. C, 1, 5. (aa) Complainant may not be ex- cluded from selling in a particular mar- ket because some other carrier has a through line to that market from another and competing point of produc- tion. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (b) While commercial and industrial considerations often enter into the de- termination of a reasonable transporta- tion charge, it is no part of the Commis- sion's duty to so adjust rates that busi- ness will or will not be done at a par- ticular point, and that is especially true where no natural advantages are pos- sessed by any locality. In Re Investiga- tion of Rates on Meats, 22 I. C. C. 160, 163. (c) Neither carriers nor the Commis- sion is to dictate where business is to be transacted. Suffern Grain Co. v. I. C. R. R. Co., 22 I. C. C. 178, 181. (cc) It is not the duty of a carrier to place all of its shippers in a position to meet the markets which they may desire to supply. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (d) Mileages cannot be computed by airlines, nor can consuming territory be apportioned by straight lines. That Bir- mingham is entitled to compete in the widest markets cannot be questioned, and a theory cannot be accepted which limits the realms of commercial activity of a producing point to a definite radius, and excludes from that territory all other producers. Alabama Coal Opera- tors' Ass'n V. S. Ry. Co., 21 I. C. C. 230, 232. (e) All markets cannot be opened to every producing point. In Re Advances in Rates— Western Case, 20 I. C. C. 307. 354. (f) Each market has a right to insist upon a rate adjustment that is fair. Board of Trade of Chicago v. A. C. R. R. Co., 20 I. C. C. 504, 507. (g) No jobbing point is entitled be- cause of unfair adjustment of rates to exclusive possession of, or complete su- premacy in, a particular consuming terri- tory. A carrier may not by the estab- lishment and maintenance of unreason- able rates give possession of a consum- ing territory to the jobbers at a point selected or favored by the carriers. Job- bers are shippers and every shipper is entitled to reasonable rates. Every lo- cality is entitled to reasonable and non- discriminatory rates, and the dealers at any point are entitled to trade wherever and as far as reasonable rates v/ill per- mit. Billings Chamber of Commerce v. C. B. & Q. R. R. Co., 19 I. C. C. 71, 75. (h) There is no good reason why de- fendant's rates on lumber from Omaha to certain points in Colorado, Kansas, South Dakota and Wyoming should be so adjusted that the Omaha dealers may merchandise, sort and mix lumber at Omaha and dispose of it in all this tierri- tory on combination rates that are no higher than joint through rates from points of production to the same points of consumption. If Omaha is entitled to such a rate adjustment it follows that other places would have the same right, and such a general adjustment would apparently be possible only on the appli- cation of the postage stamp theory of rates. Commercial Club of Omaha v. C. & N. W. Ry. Co.. 19 I. C. C. 156, 159. (i) The present rates from the east to Spokane are the result of a deliberate attempt to carve out a certain territory in which the jobber of Spokane should have the advantage in rates over his competitors upon the coast or elsewhere. While it is of great importance to Spo- kane as a commercial center that it shall control the wholesaling business into surrounding territory, and while there is great force in its claim that no schedule of rates can be right which permits mer- chandise to be hauled from the east over the Cascade Mountains to Seattle and back again to the consumer upon the east of that mountain range, the right of Spokane to control this territory should depend upon a reasonable adjustment of rates, which is open to Spokane and to all corresponding territory, and not upon a special arrangement peculiar to that locality. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 167. EQUALIZATION OF RATES, §6 (j)— (m) 307 (j) It is doubtful whether rates may be constructed for the express purpose of compelling the manufacture or mer- chandising of a commodity at particular points. City of Spqkane v. N. P. Ry. Co., 19 I. C. C. 162, 168. (k) While general commercial condi- tions should be considered, and while de- fendants might properly decline to ap- ply the same rate to the longer haul from New York to Spokane which they apply to the shorter haul from Chicago, It may be doubted whether they should be permitted to construct a tariff for the express purpose of compelling the manu- facture or the merchandising of a given commodity at Chicago or upon the Mis- souri River or at the Atlantic seaboard. Some system of rates which on the whole seem just and reasonable should be established, and these different com- munities should be permitted to do what- ever business they can under that rate system. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 168. (1) Complainant manufactured cement plaster at Laramie, Wyo., and at Gypsum, la., being in competition at the latter point with other manufacturers, and also with manufacturers at Rapid City, S. D. Complainant attacked the reasonableness of the rates from Gypsum to destina- tions upon the C. M. & St. P. Ry. in South Dakota and North Dakota and of the, rates from Council Bluffs, la., to the sania points, and alleged discrimination in favoT of Gypsum as against Council Bluffs, and in favor of Rapid City as compared with both Council Bluffs and Gypsum. Cement plaster manufactured at Gypsum sold f. o. b. that point at $3 per ton. It loads easily to the marked capacity and suf- fers no damage in transit. It is in uni- versal use for building purposes. The per ton mile yield on the rates from Gyp- sum attacked ranged from 10 to 15 mills over distances ranging from 150 to 550 miles. Charges from Gypsum were ma- terially less than those applying to lum- ber, somewhat less than those on wheat, but little in excess of rates on brick, and about one-half the rate on cattle. While higher than the rates on the same commodity in other territory, the rates from Gy])sum were not, with some ex- ceptions, in excess of the general level of rates in the territory involved. The rate to Council Bluffs on the plaster manufactured at Laramie was not com- plained of. No joint rates were in effec* to the destinations in question from Laramie via Council Bluffs. Defendant C. M. & St. P. Ry. claimed the right to protect the mills which it served at Gypsum and Rapid City, upon its own line, by imposing higher charges than would otherwise be proper, from Council Bluffs. The rates attacked from Council Bluffs exceeded the rates on lum- ber, were materially higher than those upon wheat and brick, and were only slightly lower than those upon cattle. While cement plaster loads easily to a minimum of 50,000 or 60,000 lbs., the white plaster manufactured at Gypsum and Rapid City would deteriorate in the hands of the dealer before carloads with such a minimum could be disposed of, 'hereas the brown plaster made at Lara- mie improved with age. The states of Iowa, Minnesota and South Dakota estab- lished a minimum of 30,000 lbs. on cement plaster. The minimum of defendants on lumber was 30,000 lbs., on cattle 22,000 lbs., on brick and wheat 40,000 lbs. To certain of the destinations in question a lower rate was accorded to Gypsum up- on condition that a 60,000-lb. minimum be loaded, while no similar concession was made to Council Bluffs. HELD, the rates attacked from Gypsum were not greatly out of line with the rates gener- ally prevailing in the territo-ry in ques- tion and were not unreasonable except in certain instances. Schedules of lower rates prescribed in these instances. De- fendant had no right to impose unreason- able rates from Council Bluffs in order to protect the mills served by it at Gyp- sum and Rapid City. Schedules of lower rates from Council Bluffs prescribed to correspond with the general level of rates in the territory involved. A mini- mum of 30,000 lbs. should be put into effect from all the points of origin In question, and wherever a lower rate was accorded to Gypsum on a minimum of 60,000 lbs., the same reduction should be given to Council Bluffs. Reparation de- nied, since it was not made to appear that the rates attacked were unreason- able at the time shipments were made. Acme Cement Plaster Co. v. C G. W Ry Co., 18 I. C. C. 19, 20-24. (m) A carrier, may not, in order to protect mills located on its line, exact unreasonable rates on traffic originating at mills located upon other lines. Acme Cement Plaster Co. v. C. G. W. Ry. Co.. 18 L C. C. 19, 20-24. 308 EQUALIZATION OF RATES, §6 (n)— (r) (n) Complainant, flour millers in Minnesota, North Dakota, South Dakota and Wisconsin, attacked the rail-lake-and- rail rate on flour of 23c from Minneapolis as a typical point to New York via Du- luth as discriminatory in favor of millers at Buffalo, as compared with the rate of about 10c on wheat from Minneapolis to Buffalo, and of 10c on flour from Buffalo to New York, and as compared with the rate of 20.83c on wheat from Minneapolis to New York, under the existing ex-lake rate from Buffalo of 10.83c, which in- cluded cost of elevation. From Minne- apolis to Duluth the rates on wheat, 5c, and on flour, 5.8c, were substantially on a parity and likewise from Buffalo to New York the local rate on flour was 10c, the local rate on wheat, 10.83c. From Duluth to Buffalo, however, the rates on flour and wheat were not on a parity, that on flour being 7.6c and on wheat 3.5c. The Buffalo miller was, therefore, given an advantage over the Minneapolis miller of some 3c per lOOf lbs. For a number of years prior to 1898 the regular or package lines of boats on the lakes were independent of the railroads and a differential of 5c under the all-rail rate existed via rail-lake-and-rail. The rail- roads gradually absorbed the lake lines and in 1898 increased the rail-lake-and- rail rate on flour 2c per 100 lbs., and in 1902 increased it another Ic. At some seasons of the year the rate on wheat was made by the tramp boats and at other seasons by the regular line boats controlled by defendants. The 3.5c rate on wheat by water from Duluth to Buf- falo was admitted to be profitable. It cost 2c less to carry wheat than to carry flour on the lake. The independent boats were unable to secure the flour business because defendants controlled the ter- minals and wharves and refused to per- mit them to load or unload thereat and refused to receive packages from inde- pendent boats. Subsequent to the in- crease in rail-lake-and-rail rates in 1898 and in 1902, and prior to Aug. 28, 1906, the actual rate paid on flour from Minne- apolis to New York rail-lake-and-rail did not exceed 20c per 100 lbs. The addi- tional costs to the Buffalo miller for handling wheat at Buffalo were offset by similar costs to the Minneapolis miller. Under the schedule of rates at- tacked the Buffalo millers were steadily gaining in the output and the Minne- apolis millers steadily losing. HELD, the rates on wheat and flour should be on a parity along a given line of trans- portation, so as to enable millers to dis- tribute their mills at points along the line and still remain on equal terms with respect to competition; that the rate on flour should be fixed above that on wheat only to the extent of the additional cost of transportation; and that the rail-lake- and-rail rate on flour from Minneapolis, as a typical point, to New York should not exceed 21i/^c. Jennison Co. v. G. N. Ry. Co., 18 I. C. C. 113, 123. (o) The difference in profits and ability to sell in common markets as be- tween Buffalo and Minneapolis millers is a purely commercial question in so far as it goes beyond the question of trans- portation costs and cannot enter into the determination of rates. Jennison Co. v. G. N. Ry. Co., 18 L C. C. 113, 123. (p) The Commission, in determining whether a carrier and its connections unduly discriminate in their transporta- tion charges from competing coal mines to a common market cannot undertake to equalize differences in the cost of production, whether natural or artificial. Andy's Ridge Coal Co. v. So. Ry. Co., 18 I. C. C. 405, 409. (q) Neither the east nor the west has any vested right to sell a certain amount of goods in southern territory. Each section is entitled to a reasonable rate and to do what business it can under that rate. Receivers and Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 459. (r) Complainant attacked the rate of 23c on petroleum and its products from Coffeyville, Kan., to Memphis, Tenn., 469 miles, and of 22c from Coffeyville, Kan., to Omaha, Neb., 362 miles. The rate from Coffeyville to St. Louis, 418 miles, was 17c. The Memphis rate of 23c was based upon the rate to St. Louis plus a 6c rate down the river, although the traf- fic from Coffeyville to Memphis moved by direct route and not by St. Louis. The rate from Coffeyville to Omaha was based upon Kansas City, the differential over the Kansas City rate being 9c. The Standard Oil Co. of Sugar Creek, near Kansas City, was given to Omaha a rate of 13c, distance 205 miles. HELD, since Sugar Creek was given the advantage of her proximity to the markets of Omaha on the north, Coffeyville should be given the advantage of her proximity to the markets of Memphis in the south, and the rate to Memphis should not exceed 19c and to Omaha 17c. National Pe- EQUALIZATION OP RATES, §6 (s)— (bb) 309 troleum Ass'n v. M. P. Ry. Co., 18 I. C. C. 593, 595. (s) Complainant was charged $1.85 per gross ton on crushed stone from Cedar Bluff, Ky., to Baton Rouge, La., said rate yielding 2.84 mills per ton. The rate from Cedar Bluff to New Orleans was $1.50. Cedar Blufe was 580 miles from Baton Rouge and 599 miles from New Orleans. The rate to New Orleans was established to permit the sale of stone from Cedar Bluff in competition with stone quarried in Alabama. HELD, the rate attacked was not unreasonable per se, or unduly discriminatory, as com- pared with that to New Orleans. South- prn Bitulithic Co. v. I. C. R. R. Co., 17 I. C. C. 300. (t) The Commission cannot compel rail carriers from Florida to markets for pineapples to reduce their rates to meet the lower and cheaper water charges from Cuba. Florida Fruit & Vegetable Ass'n V. A. C. L. R. R. Co., 17 I. C. C. 552, 562. (u) Complainant jobbers at Atlanta and other Georgia cities attacked the rates on grain products and hay on ship- ments from Ohio and Mississippi River crossings and beyond to points in south- eastern territory, on the ground that the practice of extending the same rates to less-than-carload as to carload shipments was unreasonable, in view of the larger expense to the carrier of delivering the less-than-carload traffic. Under the rates attacked the consumers and small deal- ers at Georgia and surrounding points were able to procure these commodities from Ohio and Mississippi River cross- ings and from Nashville as cheaply as the larger jobbers who brought in car- load shipments. To establish less-than- carload rates higher than carload rates would have the effect of compelling con- sumers and small dealers at Georgia and southeastern points to purchase from and pay middlemen's profits to the large Georgia and southeastern jobbers, in- stead of obtaining directly their supplies at lower rates from Mississippi and Ohio River crossings and from Nashville. HELD, that a railroad could not be per- mitted to adopt a system of rate making which enabled a large dealer to drive a small dealer out of the market; that the Commission could not act on the theory that the trade of a particular com- munity was a vested right, belonging to any particular class in that community, especially when so to do would result in the enjoyment of a privilege by that class at the expense of the community at large; and that since the effect of an order prescribing differentials on less- than-carload quantities would be to place a tax on retailers and consumers in order that jobbers in southeastern territory might realize a profit in competition with Nashville jobbers and at the expense of the community, such an order should be refused. Duncan & Co. v. N. C. & St. L. Ry. Co., IG I. C. C. 590, 595. (v) While a carrier ought not and should not be required to equalize ac- cess to markets for all engaged in a com- mon business, if the shippers are differ- ently situated and are not entitled to the same rates, it may be perfectly lawful for it to give equal access to markets to localities of dissimilar distances, where such distances involve no material in- crease in the transportation expense. Avery Mfg. Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 20, 24. (w) No locality, manufacturer or shipper has an exclusive right to supply a market. Avery Mfg. Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 20, 24. (x) Carriers may not by arbitrary adjustment of rates dictate or determine where wheat shall be milled or fiour '^hall be marketed. Valley Flour Mills V. A. T. & S. F. Ry. Co.. 16 I. C. C. 73, 78. (y) Under no law, common or statute, is a jobber entitled to distribute cora- modit'es under as low or lower total freight rates as the through rates from point of origin to point of consumption. Williams Co. v. V. S. & P. Ry. Co., 16 T. C. C. 482, 486. (z) Every locality competing in a common market is entitled to rates which are relatively reasonable and just in compar'son with rates from other local- ities served by the same carrier. Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. 286, 294. (aa) The duty imposed by law is to ?ive equal treatment to all shippers who are in a position to demand it, and this includes the right to reach competitive markets on relat'vely equal terms. Black M untain Coal Land Co. v. So. Ry. Co., 15 L C. C. 286, 292. (bb) The Commission has no author- ity to order the same rates on flour for export as on wheat for export for the purpose of placing the American miller 310 EQUALIZATION OF RATES, §6 (cc)— §8 (a) on competitive equality with the foreign miller, in the absence of legislation by Congress adopting such a national policy. Bulte Milling Co. v. C. & A. R. R. Co., 15 I. C. C. 351, 364. (cc) In claiming that as Chicago af- fords as good a market for grain as does Milwaukee, the defendant may, therefore, lawfully so adjust its rates to force the grain to Chicago, it overlooks the right of the shipper to choose his own market and to do business where he prefers. Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co. 15 I. C. C. 460, 464. (dd) Where plants producing fertil- izer and located at different points in one state are shipping to different points on a line in another state, a 1 ^anket rate from such producing points to the selling points should not be adopted with a view to equalize rates between competing plants, but the fair way is to establish from each plant r..tes to selling points which are inherently rea- sonable, without special reference to competitive conditions, and to allow plants to sell in whatever territory their location and a reasonable rate will per- mit. Montgomery Fre'ght Bureau v. Western Ry. of Ala, 14 I. C. C. 150, 151. (ee) No shipper is obliged to confine himself to the nearest markets, but the markets of the country are and should be open to anyone who can reach thr \ under just and reasonable rates. It is not possible to adjust rates so that every town may be a jobbing and distributing point and be on an equality with all job- bers or manufacturers at other points. Certain natural advantages of location must be recognized, and often they are, of necessity, controlling. Competitive conditions between carriers, between producing points, and in common mar- kets, must be given due weight. Dis- tance, while in no sense controlling, must be taken into consideration. New Albany Furniture Co. v. M. J. & K. C. R. R. Co., 13 I. C. C. 594, 600. §7. Size of Community. See Evidence, §33, §53, (a) A community is not entitled to advantages in the adjustment of freight rates simply because it is larger than some neighboring community. If a lo- cality has natural advantages, it should be allowed to enjoy them, but it ought not to be given the additional artificial advantage which arises from a discrimi- nating railway tariff. Suffern Grain Co. V. I. C. R. R. Co., 22 I. C. C. 178, 182; Harbor City Wholesale Co. v. S. P. Co., 19 I. C. C. 323, 331. (b) Function of carrier not to pro- mote growth of large shippers at ex- pense of small. California Commercial Ass'n V. Wells, Fargo & Co., 14 1. C C. 422, 432. (c) Advantages of location, such as proximity to a navigable stream or strong competition between carriers, naturally result in lower rates to a town so situated, and it is not the province of the Commission to disturb the result- ing rate relations unless the discrepancy is so great as to effect an unjust dis- crimination against the non-competitive points. But the mere fact that a given town has been recognized as a trade center and is enabled by its more favor- able rate adjustment to distribute in a certain territory, cannot, justify the con- tinuance of relative rates which result in undue preference. The law contem- plates relatively fair rates as between different places, and the dealer located In a small town is entitled to a reason- able adjustment which will enable him to compete on an equitable basis with dealers at trade centers enjoying the benefit of competitive rates. Payne- Gardner Co. v. L. & N. R. R. Co., 13 I. C. C. 638, 643 III. EFFECT OF EQUALIZATION. §8. Adjustment of Related Rates. See Relative Rates, (a) Ordinarily, rates not involved in an inquiry before the Commission will adjust themselves to the conditions brought about by the order of the Com- mission, but even though the assumption that they will adjust themselves is er- roneous, and the basis for the assump- tion involves a mistaken factor as to such other rates, still it does not neces- sarily lead to the conclusion that the regulation of the rate directly involved in the order is invalid, or that the order fixing such a rate should be annulled by judicial authority, provided always the rate so directly involved is reasonable and just for shippers and carriers, with relation to the particular destinations concerned. N. & W. Ry. Co. v. U. S. 195 B^ed. 953, 959. EQUALIZATION OF RATES, §8 (b)— (h) 311 (b) The Commission is not prevented from reducing an unreasonably high rate between certain points by the fact that through competitive conditions some other rate will have to be made unrea- sonably low. N. & W. Ry. Co. v. U. S., 195 Fed. 953, 960. (c) "Where it appears obvious that to ^rmt the prayer of a complaint to re- duce the rates from Indianapolis to the Mississippi River would involve the equalization of rates in all the territory between Chicago and Buffalo, it must be assumed that the effect of such wide- spread reductions would be not only great but injurious and perhaps confis- catory upon the revenues of the carriers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 208. (d) Relief against discrimination due to a rate adjustment cannot be denied on the ground that other points similarly situated might thereby be induced to ask for like relief. Chamber of Commerce of Newport News v. S. Ry. Co., 23 I. C. C. 345, 356. (dd) The fact that a reduction of an unreasonable rate or the correction of an unjust discrimination will require reduc- tions or corrections at other points can- not be accepted as a valid defense of an unreasonable rate or* an unjust dis- crimination. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 101. (e) A change in one of a series of related rates changes the relation among all of them. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 654. (ee) Shippers from Atlantic seaboard territory are entitled to reasonable rates, and if the establishment of such reason- able rates by the Commission develops unjust discrimination or unreasonable rates from intermediate or related points, the law casts upon the carriers the obli- gation of providing reasonable and non- discriminatory rates from such inter- mediate or related points. In Re Ad- vances in Rates by Carriers Operating Between the Mississippi and Missouri Rivers, 21 I. C. C. 546, 549. (f) North, S. C, is located on defend- ant S. A. L. Ry., 247 1^ miles from Wil- mington, N. C; while Olar, S. C, is 2781/2 miles. From Sept. 12, 1900, to Oct. 15, 1908, defendant's rate on cotton from North was 36c and from Olar 32c. On Oct. 15, 1908, defendant raised the rates to 45c from North and 51c from Olar, in order that its through rates might not exceed the sum of its local rates. Dec. 4, 1908, the old rates were restored. In the interval complainant shipped cotton from North and Olar and was charged the increased rates of 45c and 51c, respectively. The old rates, re- stored Dec. 4, 1908, remained in effect until Sept. 17, 1909, at which time the rate ^rom North was advanced to 40c and from Olar to 37c. These rates, how- ever, included compression and yielded the net rate from North of 32i^c and from Olar of 29i/^c. A lower rate from the more distant point, Olar, had been accorded in the past on account of compe- tition with the Atlantic Coast Line, which had ceased to be potent. Interposition of the higher rates during the short pe- riod during which the shipments moved was admitted to be a mistake by the de- fendant, the rates being experimental and quickly withdrawn. Defendant ad- mitted that reparation on the shipments from North should be on the basis of the old rate of 36c, but contended that Olar should ta,ke a higher rate than North and that, therefore, reparation on the ship- ments from Olar should not be accorded on the 32c basis. HELD, in view of the fact that the relation of rates between North and Olar had existed for seven or eight years and was promptly restored after it had been briefly disturbed and remained in effect for nearly a year, complainants were entitled to reparation on the shipments from North on the basis of 36c and from Olar on tne basis of 32c, but no order should be entered requiring defendant for the future to maintain a lower rate from Olar than from North. Alexander Sprunt & Son v. S. A. L. Ry. Co., 18 I. C. C. 251, 254. (g) Where a rate is unreasonable or unjustly discriminatory the Commission will not refuse to order the same changed on the ground that the rate adjustment in the surrounding territory will be dis- turbed. Columbia Grocery Co. v. L. & N. R. R. Co., 18 I. C. C. 502, 505. (h) Complainant attacked the carU.aa rates on gypsum rock products from Grand Rapids, Mich., to all points in Offi- cial and Southern Classification territory, the state of Wisconsin, and that part of Illinois lying in Western Classification territory. The Grand Rapids rate to Trunk Line territory was 96 per cent of the Chicago-New York basing rate, which was 25c at the time of the filing of the complaint, such 25c rate being 312 EQUALIZATION OF RATES, §8 (i)— (j) 21/^c higher than that previously in ef- fect for a long period. Since the filing of the complaint the basing 25c rate was reduced to 22i/^c. Complainant con- tended that the rate from Grand Rapids to New York should not exceed 18c in order to enable Grand Rapids to compete at eastern consuming points with New York and Ohio products. The rates from Grand Rapids to Trunk Line points and Virginia cities conformed to the mileage scale which had long been applied to practically all commodities from Central Freight Association territory. Complain- ant urged that the deposits of gypsum in Official Classification territory were few in number and so located that commodity rates made to meet the conditions exist- ing at each manufacturing point would result in justice to each and permit from each a reasonably wide distribution. It appeared that a reduction of the Grand Rapids rate would be followed by corre- sponding reductions from other compet- ing points. The ton mile revenue on the Grand Rapids rate to Trunk Line and Virginia cities was higher than the ton- mile revenue under western rates. No disclosure of the circumstances was of- fered under which the western rates were made or the reasons which induced the western carriers to accord them. The defendants accepted 15c for the haul from St. Louis to Baltimore as their proportion of the through rate on traffic originating west of the Mississippi. This amount scaled to Grand Rapids would give that point a 12i^c rate to New York, The rate in effect at the time of the hearing, 22i^c, yielded 5.2 mills per ton mile, which was less than the average ton-mile rate on all traffic between Central Freight Association points and Trunk Line points. With respect to the rate on wall plaster from Grand Rapids to Central Freight Association territory, it appeared that said rates were 83 1-3 per cent of sixth class. Prior to 1904, they had been 73 1-3 per cent of sixth class. Complainant contended that it should be accorded special commodity rates, which would enable complainant to meet com- petition from Fort Dodge, la. Wall plaster had been produced at and shipp^ i from Grand Rapids for fifty years, and had always been carried under sixth- class rates or under commodity rates which were a uniform percentage of that class, and the business had become ad- Justed on said basis of rates. The rates In the territory in question on cement were 73 1-3 per cent of sixth class. Wall plaster and cement were not, however, competitive commodities. The volume of traffic in cement was very much larger than in wall plaster, and the inbound shipments of coal and other commodities to cement mills were much greater than to wall plaster plants. The rate from Fort Dodge to Chicago, a distance of 374 miles, was 8c, as compared with the rate of TY2C from Grand Rapids to Chicago, a distance of 175 miles. Said 8c rate, however, applied on a 60,000-lb. minimum; a 12i^c rate applied on a lower mini- mum. The Grand Rapids minimum was 40,000 lbs. One of complainant's com- petitors, located at Alabaster, Mich., shipped its products upon its own line of boats to Chicago, and this fact appeared to account for the failure of complainant to make sales at Chicago. Under the existing rates, complainant's business was steadily increasing. The Grand Rapids to Chicago rate yielded 8.4 mills per ton mile, which was greater than the average revenue received from all freight in the territory in question for about the same haul. At the minimum loading, the earnings per car under the rate in question were only $30.00. To disturb the wall-plaster rate between Grand Rap- ids and Chicago would result in con- demning the rates on all commodities in the sixth class. HELD, first, with re- spect to the rates from Grand Rapids to Trunk Line territory and Virginia cities, the Chicago to New York basing rate of 25c in effect at the time of filing the complaint was unduly high, but the said basing rate of 22i^c put into effect since the filing of the compla'nt was not unreasonable, and that reparation should be awarded on shipments made under the 25c basing rate; second, with respect to the rates from Grand Rapids to Cen- tral Freight Association territory, the rates attacked were not shown to be unreasonable. Acme Cement Plaster Co. V. L. S. & M. S. Ry. Co., 17 I. C. C. 80, 34, 39. (i) The matter of adjusting rates rela- tively to meet conditions that will arise after the reduction herein ordered is made rests primarily with the defend- ants. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. 225, 229. (j) Justice cannot be done by pre- scribing an adjustment which might serve to satisfy complainant in this case if effect of it Is to impose upon some other person or localities the burden that is lifted from the complainant EQUALIZATION OF RATES, §8 (k)— EVIDENCE 313 herein. Kindel v. N. Y. N. H <& H. R. R. Co., 15 I. C. C. 555, 560. (k) It is the duty of the Commission to determine a question of relative rates on coal as between competing producing districts upon a basis which will permit them to compete in common markets and under circumstances to which their lo- cation and conditions of production fairly entitle them, with respect of their rela- tion one to another. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 295. (1) Every locality competing in a common market is entitled to rates which are relatively reasonable and just in com- parison with rates from other localities served by the same carrier. Black Mountain Coal Land Co. v. S. Ry. Co., 15 1. C. C. 286, 294. EQUIPMENT. See Cars and Car Supply; Evidence, §22, §51 (d); Facilities and Privi- leges, §21 (a); Reasonableness of Rates, §13. ERIE CANAL. See Export Rates and Facilitiec, V (d). EVIDENCE. I. BURDEN OF PROOF. §1. In general. II. CIRCUMSTANCES AND CONDI- TIONS OF PROBATIVE VALUE. §2. Advantage of location. §3. Agreed facts, admissions and agreements. §4. Averages. §5. Basing point system. §6. Bona-fide investment. §7. Capitalization, §8. Car-mile or train-mile reve- nue. §9. Change in conditions or service. §10. Combinations to fix rates. §11. Comparison of classifica- tions. §12. Comparisons of commodi- ties. (1) In general. (2) Anthracite and bitu- minous coal. (3) Bicycles and vehi cles. (4) Blacksmith coal and other coal. (5) Brick, (6) Cement and pota- toes. (7) Copper and lumber. (8) Cottonseed meal and hulls. (9) Cross-ties and lum- ber. (10) Fertilizer. (11) Flaxseed and grain. (12) Flour and grain. (13) Grain and products. (14) Ice. (15) Junk and scrap iron. (16) Lumber and prod- ucts. (17) Malt and barley. (18) Motorcycles and bi- cycles. (19) Oil. (20) Pulpwood and lum- ber. (21) Letter copiers and presses. (22) Perishable produce and dairy products. (23) Posts and poles and sawed lumber. (24) Sash, doors and blinds, and lumber. (25) Staves and head- ings, and hardwood lumber. (26) Sulphuric acid, and fertilizer. (27) Wool and hops. (28) Wool and sheep. (29) Wheat and barley, and corn, rye and oats. (30) "Wyandotte Clean- ser," and soda ash. §13. Comparisons of rates. (1) In general. (2) Divisions and joint rates. (3) Divisio.ns and local rates. (4) Import and domestic rate. (5) Proportional and lo- cal rates. (6) State and interstate rates. §14. Competition. (1) In general. (2) Potential. (3) Railroad. (4) Rail and water. (5) Water. §15. Contract relying on rate. 314 EVIDENCE, §1 (a)_(aa) §16. Cost of production. §17. Cost of operation. §18. Cost of service. §19. Credit. §19/2- Custom. §20. Distance of haul. §21. Dividends. §22. Equipment furnished. §22^. Expert evidence. §23. Failure to serve prejudiced locality. §24. Fixed charges. §25. Governmental regulation. §26. Import duty. §27. Investment relying on rate. §28. Local rates and combina- tions. §29. Long continuance of vol- untary rates. §30. Low rate in opposite direc- tion. §31. Manufactured product. §32. Market competition. §33. Merger of terminals. §34. Mineral lands owned by carrier. §35. Municipal charter. §36. Need for revenue. §37. New lines. §38. New rates. §39. Notice. §40. Oral testimony. §41. Original cost of road. §42. Panama canal. §42^. Practical construction. §43. Past rates. §431/2- Permanent improvements. §44. Previous haul on raw ma- terial. §45. Profit of shipper. §46. Rate to carrier as shipper. §47. Rate via competing carrier. §48. Rebates. §49. Reproduction value of road. §50. Return on investment in road. §51. Revenue of railroad. §52. Risk of loss or damage. §53. Size of community. §54. Size of road. §55. Standard of lines. §56. Standard of rates. §57. Surplus. §58. Ton-mile revenue. §59. Two-line haul. §59^. Unearned increment. §60. Unpublished rate. §61. Value of commodity. §62. Value of service. §63. Volume of traffic. §64. Voluntary or subsequent re- duction of rate. §64!/2. Wages. §65. Weight of shipment. §66. Widespread rate adjust- ment. III. JUDICIAL NOTICE. §67. In general. IV. PRESUMPTIONS. §68. In general. V. STARE DECISIS. §69. In general. CROSS REFERENCES. See Advanced Rates, III; Blanket Rates, VII; Cars and Car Supply, III, §36; Equalization of Rates, II; Express Companies, VII; Long and Short Hauls, §12; Loss and Dam- age, III; Overcharges, §5; Pas- senger Fares and Facilities, II; Procedure Before Commission, VIII; Undercharges, III. I. BURDEN OF PROOF. See Absorption of Charges, §4 (a); Advanced Rates, §3, §5 (2) (bb), §6 (3) (a); Blanket Rates, §16; Classi- fication, §15 (b): Courts. §6 (e); Crimes, §25; Discrimination, §14; Evidence, I. §68 (a); Express Com- panies, §11 (5) (a), §11 (9) (a), §23 (a); Long and Short Hauls, §12 (1); Loss and Damage, §15; Propor- tional Rates, II (a); Routing and Misrouting, §8; Through Routes and Joint Rates, §11 (2) (c), (u), §15, §16 (I): Undercharges, §5. §1. In General. (a) Defendants advanced the rate on candles from Helena, Mont., to points in the Coeur d'Alene district about 20c per 100 lbs., raising the former rates of about 55c. No evidence was offered to show that the cost of the service had increased or that the carriage of this particular article was not profitable to the defendants. These rates had been in effect for a period of years. Com- plainant established a business under them and has no means of reaching the market other than via defendants' line. HELD, defendants have not sustained the burden placed upon them by the statute to show that the new rates are just and reasonable; and they should establish for the future rates not in ex- cess of those in effect previous to the advance in question. Reparation award- ed. Perry & Co. v. N. P. Ry. Co., 23 I. C. C. 247. (aa) A carrier cannot be permitted to advance its rate to the level of rates on the same article on other lines, where the proposed restored rate is pro- EVIDENCE, §1 (b)— (gg) 315 hibitive and the carrier fails to sustain the burden of proof. In Re Advances on Staves, 23 I. C. C. 382. (b) An admission of reasonableness relieves the carrier of the burden of justifying the advance. Wisconsin State Millers' Ass'n v. C. M. & St. P. Ry. Co., 23 I. C. C. 494, 495. (bb) The withdrawal of through rates, leaving higher combination in effect, casts burden upon carriers. In Re Advances on Coal, 23 I. C. C. 518, 519. (c) The withdrawal of proportional rates, leaving higher local rates in ef- fect, casts the burden of justifying upon the carriers. Wisconsin State Millers' Ass'n V. C. M. & St. P. Ry. Co., 23 I. C. C. 494, 495. (cc) That the sheep industry should be treated as a whole and the rates accorded to that industry passed upon as a whole; that the unreasonably low live-stock rate should be offset against the wool rate should that appear some- what high, is a doctrine that should be applied with extreme caution. In Re Tracsportation of Wool, Hides and Pelts, 23 I. C. C. 151, 159. (d) Complainants sought to reduce rates on live stock, carloads, from Ida- ho and eastern Oregon points through Wallula, Wash., to Tacoma, Wash., to the same basis as in effect from the above points through Portland, Ore., to Tacoma. The Wallula route is 43 miles shorter than the Portland route. The difference in rates ranges from nothing to $15 per car. HELD, in the absence of any showing as to the unreasonable- ness of the rates via Wallula, the mere fact a lower rate existed via a longer route was no measure of the reasonable- ness of the rate attacked. Complaint dismissed. Carstens Packing Co. v. IT. P. R. R. Co., 22 I. C. C. 8, 10. (dd) After Jan. 1, 1910, under the fif- teenth section of the Act, the burden of proof to show that the increased fare is just and reasonable rests with the car- rier. Citizens of Somerset v. Washing- ton Ry. & Elec. Co., 22 I. C. C. 187, 188. (e) An allegation that a rate is un- reasonable puts the burden of showing such unreasonableness on the complain- ant. Chamber of Commerce of Augusta, Ga., V. Southern Ry. Co., 22 I. C. C. 233, 234. (e€) The Commission does not hold that rates beyond a common junction point from different points of origin must in every case increase in equal ratio, regardless of relative distances and other possible material considerations, but a substantial disparity in this regard im- poses upon carriers the burden of justi- fication by showing a dissimilarity of conditions from the favored section. Alpha Portland Cement Co. v. B. & O. R. R. Co., 22 I. C. C. 446, 450. (f) A group of carriers cannot be permitted to cast the responsibility of justifying a proposed increase in rates upon a single carrier and claim the benefit of the case made by such car- rier, where several roads lead between two points, since the carriers might place the burden of upholding the burden of increase upon that railroad which could make the best showing, having the longest route, most incom- petent management, the lowest volume of traffic and the greatest need of addi- tional revenue. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 611. (ff) If, contrary to general impres- sion and logical expectation, a more highly developed and better equipped railway cannot do business on as low a basis per unit of traffic as a railway less developed and with poorer equip- ment, that conclusion should be clearly and unmistakably demonstrated and proven, and should not be accepted on vague impressions or general allegations before consequential action iS taken based upon it. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 651. (g) Under the Act of 1910 the burden is on the carrier to prove the reason- ableness of advanced rates. In Re Advances on Cattle and Sheep, 23 I. C. C. 7, 12; In Re Advances on Lemons, 23 I. C. C. 27, 28; In Re Investi- gation of Advances in Rates on Grain, 21 I. C. C. 22, 35; In Re Ad- vances in Rates on Locomotives and Tenders, 21 I. C. C. 103, 111; In Re In- vestigation and Suspension Docket 14, 21 L C. C. 546, 555; Ohio Allied Milk Product Shippers v. E. R. R. Co., 21 I. C. C. 522, 528; United States Leather Co. V. S. Ry. Co., 21 I. C. C. 323, 325; Victor Mfg. Co. v. S. Ry. Co., 21 L C. C. 222, 226. (gg) Where the cancellation of joint through rates increases the total rate from point of origin to destination the 316 EVIDENCE, §1 (h)— (n) burden is on the carrier to prove the reasonableness of the increased rates. In Re Advances on Lumber and Other Forest Products, 21 I. C. C. 455, 456. (h) An award of the Commission in reparation of damages resulting from a violation of the Act is not enforceable as such, but in a suit in court, for such damages, the findings and order of the Commission are prima facie evidence in support thereof. It follows that the Commission is not justified in awarding damages in any case except on a basis as certain and definite in law and in fact as is essential to the support of a final judgment or decree requiring the pay- ment of a definite sum of money by one party to another. Anadarko Cotton Oil Co. V. A. T. & S. P. R. R. Co., 20 I. C C. 43, 49. (i) The burden of proof of the unrea- sonableness of a rate is on the complain- ant. Loftus V. Pullman Co., 19 I. C. C. 102, 103. (j) Complainant shipped compo-board and at the hearing produced no evidence in support of his complaint that the rate was unreasonable, except producing the expense bills and a sample of the compo- board. HELD, such evidence is not the presentation of facts, circumstances and conditions necessary to an intelligent and proper determination of the matters in question. While it is the duty and practice of the Commission to exhaust its activities in developing the pertinent facts necessary to the full investigation and hearing of complaints before it, it is but reasonable that a party com- plainant should also take such action as may be within his power to aid the Commission by presenting such evidence as will show the pertinent facts, circum- stances and conditions bearing upon the questions involved. Quammen & Austad Lumber Co. v. C. M. & St. P. Ry. Co., 19 L C. C. 110, 111. (k) On carloads of empty beer pack- ages from Omaha, Neb., to Milwaukee, Wis., and from Kansas City, Mo., to Milwaukee, complainant was assessed 16c, or one-half of the fourth class rate. Shortly prior to the shipment a rate of lie was in effect. Shortly after the ship- ment it was restored. Defendants ad- mitted the rate charged to be unreason- able and joined in asking reparation on the basis of lie. Under the lie rate the earnings per carload ranged from $16.50 to $33.00. Under the 16c rate it ranged from $24.00 to $48.00. The dis- tance was 500 miles. HELD, that an award of reparation can be predicated only upon an affirmative finding that the rate exacted was in fact excessive, and not merely upon a showing that the carrier is willing to honor the claim; that the fact that the defendants found it impracticable to maintain the increased charge did not demonstrate its inherent unreasonableness; and the IGc charge could not be held to be excessive. Rep- aration denied. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 359, 360. (1) Where there is a conflict in tes- timony as to the date of a movement, the rate that was lawfully in effect, the route taken, the size of the car actually used, or the weight of the shipment, of- ficial records of the carrier may be re- sorted to in arriving at a correct con- clusion; but where a shipper claims that he ordered a car of a certain size for a particular shipment and this is denied by the carrier, and it is not pretended that the order was in writing, the con- flict can be resolved only by considering all the evidence and ascertaining on which side the preponderance of the tes- timony may lie. Wheeler Lumber, Bridge & Supply Co. v. S. P. Co., 16 I. C. C. 547, 548. (m) Where the complainant sought to disturb a rate adjustment of long stand- ing he should take upon himself the burden of establishing clearly the ne- cessity for an investigation and the rea- sonableness of its demand. Taylor v. M. P. Ry. Co., 15 L C. C. 165, 166. (n) Among the considerations to be weighed in determining what is a rea- sonable and just rate are included the general financial and physical conditions of the carrier, the character of the com- modity in question, whether it constitutes a large or small part of the business of the carrier, whether it is economical or expensive to handle, how it compares with other commodities hauled, and, as evidencing the railroad's own judgment, whether a different rate has been in effect on this commodity at some time or other. Thompson Lumber Co. v. I. C. R. R. Co., 13 I. C. C. 657, 664. II. CIRCUMSTANCES AND CONDI- TIONS OF PROBATIVE VALUE. See Advanced Rates, §18; Equaliza- tion of Rates, II; Long and Sliort Hauls, §12 (2); Reasonableness of Rates, II; Reparation, III. EVIDENCE, §2 (a)— §5 (a) ^17 §2. Advantage of Location. See Equalization of Rates, §3; Tar- iffs, §7 (fff). (a) Every city is entitled to the com- mercial advantages of its location. Mere- dith V. St. L. S. W. Ry. Co., 23 I. C. C. 31, 34; Massee & Felton Lumber Co. v. S. Ry. Co., 23 I. C. C. 110, 111, 113; Chamber of Commerce of Ashburn v. G. S. & F. Ry. Co., 23 I. C. C. 140, 145; Bituminous Coal Operators v. P. R. R. Co., 23 I. C. C. 385, 391; Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 442; Blodgett Milling Co. V. C. M. & St. P. Ry. Co., 23 I. C. C. 448, 451; Sioux City Term. El. Co. v. C M. & St. P. Ry. Co., 23 I. C. C. 98, 107; Carstens Packing Co. v. O. & W. R. R. Co., 22 I. C. C. 77, 81; Elk Cement and Lime Co. v. B. & O. R. R. Co., 22 I. C. C. 84, 88; In Re Investigation of Rates on Meats, 22 I. C. C. 160, 163; In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 604, 613; Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 654; Sinclair & Co. V. C. M. & St. P. Ry. Co., 21 I. C. C. 490, 507, 508; East St. Louis Cotton Oil Co. V. St. L. & S. F. R. R. Co., 20 I. C. C. 37, 41; Truck Growers' Assn. v. A. C. L. R. R. Co., 20 I. C. C. 190; National Refining Co. V. C. C. C. & St. L. Ry. Co., 20 I. C. C. 649; Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 309; Ponchatoula Farmers' Assn. v. I. C. R. R. Co.. 19 L C. C. 513, 516; Col- orado Coal Traffic Assn. v. C. & S. Ry. Co., 18 I. C. C. 572, 576; Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 33; Saginaw Board of Trade V. Grand Trunk Ry. Co., 17 I. C. C. 128, 135; Florida Fruit & Vegetable Assn. v. A. C. L. R. R. Co., 17 I. C. C. 552, 561; Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 16; Chicago Lumber & Coal Co. v. T. S. Ry. Co., 16 I. C. C. 323, 331; Hafey v. St. L & S. F. R. R. Co., 15 I. C. C. 245, 246; Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. 286, 293; City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 419; Kan- sas City Transportation Bureau v. A. T. S. F. Ry. Co., 15 I. C. C. 491, 498; Kin- del V. N. Y. N. H. & H. R. R. Co., 15 I. C. C. 555, 561; Burnham, Hanna, Munger Co. V. C. R. I. & P. Ry. Co., 14 I. C. C. 299, 303; Quimby v. Maine Central R. R. Co., 13 I. C. C. 246, 248. (aa) Commercial conditions should be considered in fixing rates. City of Spo- kane V. N. P. Ry. Co., 19 I. C. C. 162, 168. (b) Because carriers have con- structed a system of rates on a zone or blanket system is not sufficient reason to justify the collection of unreason- able charges to any point. Every city is entitled to the advantage of its location and may not lawfully be subjected to high freight charges merely because car- riers for reasons of convenience or other- wise include it with a number of other points in surrounding territory, which latter points are not similarly situated. Corporation Commission of North Caro- line V. N. & W. Ry. Co., 19 I. C. C. 303. 309. (c) Where, from a geographical standpoint, two rate groups are corre- sponding timber producing sections they should take the same rates. Big Black- foot Milling Co. v. N. P. Ry. Co., 16 I. C. C. 173, 175. (d) Every locality competing in a common market is entitled to rates which are relatively reasocable and just in comparison with rates from other lo- calities served by the same carrier. Black Mountain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 294. (e) Carriers are not required by law to equalize natural , advantages, such as location, cost of production and the like. Black Mountain Coal I>and Co. v. S. Ry. Co., 15 I. C. C. 286, 293. I §3. Agreed Facts, Admissions and Agreements, See Facilities and Privileges, §19 (f ) ; Overcharges, §4 (b); Reparation, §17; Special Contract, §4 (1) (fg), (a) While a stipulation is ordinarily accepted by the Commission as con- clusive, inasmuch as the Commission is charged with the enforcement of lawful rates, it cannot at all times accept the views of the parties as to what in fact is the lawful rate between given points on a specified commodity. Germain Co v. N. O. & N. E. R. R. Co., 17 I.- C C. 22, 24. §4. Averages. See Infra, §12 (14) (a); §20 (ff). (a) Averages are often helpful in de- termining the proper relationship of rates or the proper basis for their con- struction, but dissimilarity of conditions may affect the force of these factors. Victor Mfg. Co. V. S. Ry. Co., 21 L C. C. 222, 229. §5. Basing Point System. (a) A rapid increase of rates as the point of production is removed from !18 EVIDENCE, §5 (b)— §8 (d) base points presents an anomaly in rate making which calls for explanation. Florida Fruit & Vegetable Shippers' Protective Ass'n v. A. C. L. R. R. Co., 22 I. C. C. 11, 17. (b) Where a rate adjustment is built and maintained upon the bas'ng-point system it should be applied alike to all places where dissimilarity of circum- stances or controlling competition does not exist. Columbia Grocery Co. v. L. & N. R. R. Co., 18 I. C. C. 502, 505. §6. Bona-fide Investment. See Infra, §41 (a), §49 (aa); Ad- vanced Rates, §6, §6 (4) (b). (a) Were it possible to determine the exact amount of money which has been put into the railroad properties in Official Classification territory, the amount of return which has been paid to the pres- ent time, the degree of prudence with which the property has been constructed and operated, investment would furni h a very satisfactory basis in arriving at an equitable return. Advances in Rates —Eastern Case, 20 I. ^. C. 243, 258. (b) The nearest approximation to the fair standard of rate regulation is that of bona-fide investment — the sacrifice made by the owners of the property — considering as part of the investment any shortage of return that there may be in the early years of the enterprise. Upon this, taking a life history of the road through a number of years, its pro- moters are entitled to a reasonable re- turn. This, however, is limited; for a return should not be given upon waste- fulness, mismanagement, or poor judg- ment, and always there is present the restriction that no more than a reason- able rate shall be charged. Advances in Rates— Western Case, 20 I. C. C. 307, 347. §7. Capitalization. See Express Companies, §24; Inter- state Commerce Commission, §7; Reasonableness of Rates, §5. (a) The market value of stock should be considered in fixing rates, but such rates cannot be allowed as will guarantee the prices at which the stock was bought. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 260. (b) It is almost axiomatic that the investment in an American railroad is not represented by its capitalization. The Commission cannot accept capitalization as representing either investment or value. Advances in Rates — Western Case, 20 I. C. C. 307, 320. (c) There is no relation between cap- ital and value and there is no relation between stocks representing value and bonds representing value. In Re Ad- vances in Rates — Western Case, 20 I. C. C. 307, 335. (d) The Great Northern Railway Company has in the past distributed its stock issues among its stockholders at pa-r from time to time, although the mar- ket value of the stock was often much above par. Without expressing any opin- ion upon the legality or propriety of this practice, it is held that this fact, at this time, can have no bearing upon the earn- ings to which that company is entitled. City of Spokane v. N. P. Ry. Co., 15 I. C. C 376. (e) The fact that a carrier has issued watered stock cannot be urged on a ques- tion of reasonableness of rates to deny the right of present holders of said stock to receive reasonable dividends thereon. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 410. (f) The fact that a carrier's stock originally sold at less than par cannot be urged on a question of reasonableness of rates to deny the present holders thereof fair dividends therefrom. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 411. §8. Car-mile or Train-mile Revenue. See Minlmums, $1 (bb) ; Reasonable- ness of Rates, §6. (a) There are greater car earnings under a lower rate with a higher mini- mum than under a higher rate with a lower minimum. In Re Transportation of Wool, Hides ard Pelts, 23 I. C. C. 151, 167. (aa) Car revenue is an important ele- ment in determining the reasonableness of a rate. Merchants & Mfrs.' Ass'n v. A. C. L. R. R. Co., 22 I. C. C. 467, 469. (b) The fairest test of the reasonable- ness of rates is earnings per car-mile and per train-mile. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 620. (c) The rate per car per mile en- titled to be considered as a relative test in rate making. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 47. (d) Car earnings of $44 on a 40-ton car for a one-line haul of 113 miles and EVIDENCE, §8 (e)— §12 (2) (a) 319 for a 50-ton car of $55 seems excessive for a commodity like coal, which can move in almost any kind of a car. Rainey & Rodgers v. St. L. & S. F. R. R Co., 18 I. C. C. 88, 90. (e) It is difficult to see how earnings of from $24 to $48 per car for a haul of some 500, miles can be held an ex- cessive return for the service rendered. Pabst Brewing Co. v. C. M. & St. P Ry. Co., 17 I. C. C. 359, 360. (f) The most satisfactory comparison to ascertain whether relative injustice is being done one section against an- other is through the earnings per car. Ozark Fruit Growers' Ass'n v. St. L & S. F. R. R. Co., 16 I. C. C. 106, 114. §9. Change In Conditions or Service. See Advanced Rates, §7; Facilities and Privileges, §15 (I); Reasonable- ness of Rates, §7, §28 (q). (a) Where a carrier voluntarily changes its method of gathering certain milk shipments in order to expedite its service and save itself expense in hand- ling other shipments of milk, it cannot contend that its changed method of gath- ering has increased its cost of service to such an extent that the milk shipments first referred to should pay an increased rate. In Re Advances in Rates for the Transportation of Fluid Milk, 23 I. C C 500, 501, 502. §10. Combination to Fix Rates. See Advanced Rates, §9, §16. (a) Complainant attacked the cement rate from Martins Creek, Pa., in the Le- high district to Philadelphia. The de- fendant offered evidence to show that the producers of cement in the Lehigh district adjusted their prices in the va- rious markets to meet competition from other points, and argued that any reduc- tion of the rate to Philadelphia would mure to the benefit of the producers of cement at Martins Creek, not to the ad- vantage of the purchasers at Philadel- phia. HELD, whatever the fact may be in this respect the duty of the Commis- sion is to deal with the rates themselves. If there is a combination in restraint of trade which controls the price of this commodity without regard to the ordi- nary laws of production and distribution that fact does not constitute an excuse for the maintenance of an unreasonable rate. Maritime Exchange v P R R Co., 21 I. C. C. 81, 84. ... (b) While evidence of an unlawful combination of carriers in fixing rates is admissible as a part of the history of the rate of which complaint is made and may often throw light upon the question of its reasonableness, the un- lawful combination, standing by itself without proof also of the unreasonable- ness of the rate, is not a sufficient ground for an order to reduce the rate. Board of Bristol, Tenn., v. V & S W Ry. Co., 15 L C. C. 453, 454. (c) While the action of carriers in fixmg rates by agreement leads the L^ommission to scrutinize more carefully such rates, with a view to ascertaining whether or not such action has resulted in the maintenance of unreasonable transportation charges, and evidence thereof is admissible for that purpose, that fact alone is not conclusive of the unreasonableness of said rates. Rail- road Commission of Kentucky v L & N R. R. Co., 13 L C. C. 300, 309. " §11. Comparison of Classification. See Comparative Rates, (a) A comparison of the ratings in the different classifications is not a guide to the relative transportation charges thereunder, unless the class rates under the several classifications are also considered. Milburn Wagon Co. v L. S. & M. S. Ry. Co., 22 1. C. C. 93, 102. §12. Comparisons of Commodities. See Comparative Rates. §12. (1) In General. (a) The contention that the rate on one commodity should not exceed the rate on an analogous one may have force, but in the absence of a showing of the unreasonableness of the rates on the analogous one the Commission would not be justified in requiring a reduction of the rates on the other. By merely showing that the articles are similar the order would be limited to prescribe rates on one commodity not in excess of rates on the other, which might be obeyed by increasing the lower rate. Paducah Cooperage Co. v. N. C. & St. L. Ry. Co , 22 I. C. C. 226, 232. §12. (2) Anthracite and Bituminous Coal. (a) The conditions relating to the transportation of anthracite and bitumi- nous coal have not been shown to be sim- ilar to such a degree that the existence of a lower rate on bituminous would war- rant a conclusion that a higher rate on anthracite on a different road is unrea- 320 EVIDENCE, §12 (2) (b)— §12 (8) (a) sonable. Meeker & Co. v. Lehigh Val- ley R. R. Co., 21 I. C. C. 129, 150. (b) Coal is a low-grade freight, mov- ing in vast quantities; it is a natural product and the commercial conditions surrounding its production, the competi- tive conditions under which it moves and its varying cost in different fields must be taken into consideration in fixing •rates. Fort Dodge Commercial Club v. I. C. R. R. Co., 16 I. C. C. 572, 582. §12. (3) Bicycles and Vehicles. (a) On carloads of bicycles from Day- ton, O., to Chicago, 111., complainant was charged in 1910 first class rates, whereas before July 1 of that year it had paid second class rates, the rates being re- spectively 38i^c and 33c. Other vehicles were rated less than second class. The minimum carload weight on other ve- hicles was 11,000 lbs.; on bicycles, 10,000. Defendant did not present any evidence to justify the increase of the rate, except that car earnings were small compared with articles of iron and steel. HELD, that the proper comparison for the pur- poses of testing the reasonableness of the rate was with other vehicles, and that rate charged was unreasonable, and that the original second class rate should stand. Reparation granted. Davis Sew- ing Machine Co. v. P. C. C. & St. L. Ry. Co., 22 I. C. C. 291. §12. (4) Blacksmith Coal and Other Coal. (a) While the use to which a com modify is put affords no basis for a dif- ference in rates, such a substantial dif- ference exists between blacksmith coal and ordinary bituminous coal as to war- rant a special smithing-coal rate. Sligo Iron Store Co. v. A. T. & S. F. Ry. Co., 17 L C. C. 139, 142. (b) Blacksmith coal is superior to ordinary coal and it is lawful for car- riers to collect a higher rate thereon. Sligo Iron Store Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 139, 142. §12. (5) Brick. (a) There is no transportation rea- son for making different rates on differ- ent grades of fire, building, and paving brick. Metropolitan Paving Brick Co. V. A. A. R. R. Co., 17 I. C. C. 197, 205. .(b) Brick is a very desirable traffic possessing elements which seem to call for the making of low rates. Metropoli- tan Paving Brick Co. v. A. A. R. R. Co., 17 L C. C. 197, 207. (c) Common brick are made in al- most every section of the country, and a rate made to move such a low-priced commodity as this should not be taken as the basis for fixing the rate on other classes of brick. James & Abbot Co. v. B. & M. R. R., 17 I. C. C. 273, 274. §12. (6) Cement and Potatoes. (a) The difference in the value of two commodities, in the volume of the traffic, in the conditions under which they move, and in the risk and cost of handling them ordinarily results in a substantial difference in the rates under which they are carried, and therefore a comparison of the rates on cement with the rates on potatoes is of little value in support of an allegation that there is a discrimination in rates in favor of cement as against potatoes, the two commodities being wholly non-competi- tive. Anthony v. P. & R. Ry. Co., 14 I C. C. 581. (b) Potatoes, being in the fifth class, take a 17c rate from one Pennsylvania rate group and a 14c rate from an ad- joining New Jersey group to certain New England points. Cement moves to the same points under a blanket com- modity rate from all mills within the radius of the two groups. HELD, that complainant's contention that potatoes ought, for that reason, to enjoy one rate, viz., the 14c rate, from all points within the same radius is without merit, and the complaint is therefore dis- missed. Anthony v. P. & R. Ry. Co., 14 I. C. C. 581. §12. (7) Copper and Lumber. (a) A copper rate based on a limited risk is no guide to lumber rates. Ore- gon & Washington Lumber v. U. P. R. R. Co., 14 I. C. C. 1, 13. §12. (8) Cottonseed Meal and Hulls. (a) On cottonseed meal and cotton- seed hulls defendants published joint rates to Jacksonville, Fla., from local mill points on the line of the Central of Georgia R. R. that were on a level with the rates on those commodities from com- petitive points in the same territory. Coming into competition with other feed- ing materials as well as with the meal and hulls of other mills the defendants EVIDENCE, §12 (9) (a)— §12 (18) (a) 321 asserted that competitive rates are essen- tial to insure their free movement. HELD, these considerations are entitled to proper weight in considering any rela- tion of rates on cottonseed and cotton- seed products. Florida Cotton Oil Co. V. C. of Ga. Ry. Co., 19 I. C. C. 336, 339. §12. (9) Cross-ties and Lumber. (a) The rates on cross-ties should not exceed the rates on rough lumber of the same description, Switzer Lumber Co. V. A. & M. R. R. Co., 22 L C. C. 471, 475. (b) The rates on ties should not ex- ceed the rates upon lumber of the class and description of wood of which the ties are made. Continental Lumber & Tie Co. V. T. & P. Ry. Co., 18 I. C. C. 129, 131. §12. (10) Dairy Products. (a) Dairy products rate may proper- ly be compared with rates on such prod- ucts throughout the country, especially where circumstances are similar. Com- mercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 402. §12. (10) Fertilizer. (a) Fertilizer is a low-grade traffic, subject to no great risk in transit and requiring no special service for its trans- portation. Its free movement and use is an auxiliary tending to produce and furnish a larger volume of traffic and thus promote the prosperity of carriers and their patrons, so that considering both commercial and transportation con- ditions it is entitled to comparatively low rates. Virginia-Carolina Chemical Co. V. St. L. S. W. Ry. Co., 16 I. C. C. 49, 52. (b) Fertilizer is a commodity which should ordinarily be accorded a low rate of transportation. Montgomery Freight Bureau v. W. Ry. of Ala., 14 I. C. C. 150, 152. §12. (11) Flaxseed and Grain. (a) There is no good reason why rates upon flaxseed should of necessity be the same as corresponding rates upon grain, but they may somewhat exceed those rates. There is no commercial connection between flaxseed and othei kinds of grain and there is, therefore, no commercial reason why carriers should be required to transport this ar- ticle for an abnormally low rate such as that upon grain and grain products from the point of its production in Canada to the Atlantic seaboard. In Re Ad- vances in Rates for the Transportation of Flaxseed in Carloads, 23 I. C. C. 272, 275, 276. §12. (12) Flour and Grain. (a) It is difficult -to see how the Commission would permit a rate upon grain from Buffalo materially lower than the rate upon flour manufactured from that grain. Board of Trade of Chicago V. A. C. R. R. Co., 20 I. C. C. 504, 510. §12. (13) Grain and Products. (a) Grain products are transported at grain rates, or certain close relation- ships are observed. Douglas & Co. v. C. R. I. & P. Ry. Co., 16 I. C. C. 232, 243. §12. (14) Ice. (a) Other conditions being equal, the rate per ton-mile from ice trafllic ought not to equal the average from all sources. Mountain Ice Co. v. D. L. & W. R. R. Co., 15 I. C. C. 305, 320. §12. (15) Junk and Scrap Iron. (a) Junk rates are ordinarily higher than rates on scrap iron. Radinsky v. O. S. L. R. R. Co., 21 I. C. C. 243, 244. §12. (16) Lumber and Products. (a) While products of lumber logic- ally might take somewhat higher rates than lumber, carriers treat the matter differently aiDd it is fair to assume that the result reached is justified by con- sideration of all the elements entering into the adjustment of rate^ on such articles. Lovelace Lumber Co. v. L. & N. R. R. Co., 21 I. C. C. 585, 586. (b) Comparisons of lumber rates are not conclusive nor greatly profitable, since operating conditions are seldom the same, much less traffic and commer- cial conditions. Western Oregon Lum- ber, etc., V. S. P. Co., 14 L C. C. 61. §12. (17) Malt and Barley. (a) The rate on malt may properly be higher thin the raT:e on 'die barley from which it is manufactured. Texas Brewing Co. v. A. T & S. F. Co., 21 I. C. C. 171, 174. §12. (18) Motorcycles and Bicycles. (a) There is no transportation rea- son for maintaining a less than-carload 322 EVIDENCE, §12 (19) (a)— §12 (28) (a) rate on motorcycles in excess of that on bicycles. Rose v. B. & A. R. R. Co., 18 I. C. C. 427, 429. §12. (19) Oil. (a) Oil in less than carload ship- ments is not a desirable class of traffic; there is more or * less leakage, giving rise to damage claims on account of other commodities shipped in the same car which may be injured both by direct contact with the oil and by the odor therefrom; and it is, therefore, neces- sary to handle small, less than carload lots, in separate cars, and on account of its inflammable nature extreme care must be exercised in its movement. Marshall Oil Co. v. C. & N W. Ry. Co., 14 I. C. C. 210, 212. §12. (20) Pulp Wood and Lumber. (a) A low-grade traffic such as pulp wood should ordinarily take a lower rate than lumber, but where a lumber rate is competitive, the rate on pulp wood may be the same. Wisconsin Pulp Wood Co. V. G. N. Ry. Co., 22 I. C. C. 594, 595. §12. (21) Letter Copiers and Presses. (a) Complainant attacked the charge of one and one-half times first class rates on rapid roller letter copiers from Roch- ester, N. Y., to Western Classification territory, as unduly discriminatory in favor of ordinary letter presses which took 2d class rates. The rapid roller let- ter copier, though put to the same use as the ordinary letter press, was com- posed of 29 parts and was much more complicated, was more liable to breakage, occupied nearly twice as much space as th€ old style press of the same weight, and was worth nearly four times as much. The volume of traffic to the des- tinations in question was small. HELD, the rate attacked was not unjustly dis- criminatory or unreasonable. Yawman & Erbe Mfg. Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 260. §12. (22) Perishable Produce and Dairy Products, (a) Perishable products afford no proper comparison with dairy products. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 402. §12. (23) Posts and Poles, and Sawed Lumber. (a) The rule that a transportation charge for posts and poles shall not ex- ceed that applied to sawed lumber seems to grow out of the character of the com- modities themselves. But there is no competitive reason why rate upon the two commodities should be the same. Partridge Lumber Co. v. G. N. Ry. Co., 17 I. C. C. 276, 278. §12. (24) Sash, Doors and Blinds, and Lumber. (a) Ordinarily the same rate is ap- plied to all lumber without reference to its value or condition, and this rate fre- quently includes not only manufactured lumber, but articles made from it, like doors, sash, blinds, etc. Oregon & Wash- ington Lumber Mfrs. Assn. v. S. P Co., 21 L C. C. 389, 395. §12. (25) Staves and Headings, and Hardwood Lumber. (a) Whatever may be true when staves are compared with lumber of a lower grade there is no reason why staves and headings should not be ac- corded as low a rate as is applied to the hardwood lumber involved in this pro- ceeding. In Re Rates on Hardwood Lum- ber, 21 I. C. C. 397, 399. §12. (26) Sulphuric Acid, and Fertilizer. (a) Sulphuric acid is strictly a raw material in the manufacture of fertilizer, and distinctly lower rates should be ap- plied to its transportation than upon the manufactured fertilizer. International Agricultural Corporation v. L. & N. R. R. Co., 22 L. C. C. 488, 493. §12. (27) Wool, Hops and Oranges. (a) If no competitive conditions inter- vene it would be difficult to sustain a higher rate upon wool than upon hops. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 160. (b) While the rate on wool prob- ably ought to be higher than the rate on oranges, it is difficult to sustain a rate on wool which is almost twice as high for a shorter haul. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 161. §12. (28) Wool and Sheep. (a) The fact that rates on sheep may be unreasonably low while rates on wool are high cannot justify the higher rate on wool, because different persons, -and localities are interested in them. In Re EVIDENCE, §12 (28) (b)— §13 (1) (g) 323 Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 159. (b) Lower rates on wool in bales than on wool in sacks should be es- tablished from far western points to the east. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 168. (bb) The fact that the value of wool is much greater than that of sheep and the rate is a thing of less relative con- sequence to the producer might justify a somewhat higher rate on the wool than on the live animal. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 159. §12. (29) Wheat and Barley, and Corn, Rye and Oats. (a) Having voluntarily made a com- mon rate on wheat and barley to Milwau- kee and Chicago, the Commission cannot disregard the force of that action as evi- dence by which to measure the justice of the complainant's proposal that com- mon rates should also be made to those points on corn, rye, and oats. Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co., 15 I. C. C. 460. §12. (30) "Wyandotte Cleanser," and Soda Ash. (a) Complainant manufactured "Wy- andotte Cleaner and Cleanser," a house- hold washing and cleansing compound. Defendants rated this commodity in the Official Classification as fifth class. De- fendant contended that it is mainly com- posed of particular standard grades of soda ash, of low alkali test, and that it should be rated the same as soda ash. Complainant objected to placing on its packages "soda ash (trade name Wyan- dotte Cleaner and Cleanser)," although willing to have the same appear on the bill of lading. HELD, that unless com- plainant marked its package as soda ash, it would not be entitled to the soda ash rating, as complainant may not demand or be accorded the soda ash rate except upon shipments of soda ash designated as such when tendered for shipment and so marked if marked at all; that there would be no objection to adding the trade name to the description of the commodity and marking packages ten- dered for shipment, such as "soda ash (trade name, Wyandotte Cleaner and Cleanser)" or "Wyandotte soda ash," and there would be no reason for increasing the transportation charges because of such marking. Ford Co. v. M. C. R. R. Co., 19 I. C. C. 507, 511. §13. Comparisons of Rates. See Branch Lines, §2; Comparative Rates; Proportional Rates, IV (h); Reasonableness of Rates, §2 (jj), §3 (h); Relative Rates. §13. (1) In General. (a) Rate comparisons to be persua- sive should show that conditions are similar. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 L C. C. 195, 201. (aa) All the fa"Cts and circumstances which bear upon the relation of rates are to be considered. Chamber of Com- merce of Newport News v. S. Ry. Co., 23 L C. C. 345, 352. (b) When rate comparisons are used as evidence it should appear that operat- ing conditions are similar. Thropp v. P. R. R. Co., 23 L C. C. 497, 499. (c) When reference is made to rate comparisons it must be shown that trans- portation conditions are similar to those involved in the proceeding in which they are to be used as evidence. Otherwise they are not of material consequence. Rates in nearby territory furnish a more reliable basis of comparison. In Re Advances in Rates for the Transporta- tion of Fluid Milk, 23 L C. C. 500, 502, 503. (d) When it appears that a carrier gives to one point substantially lower rates for substantially the same service than it accords to a competing point, those comparisons are forceful, and in the absence of modifying conditions might well be considered conclusive. Memphis Freight Bureau v. St. L. I. M. Ry. Co., 22 L C. C. 548, 555. (e) Comparisons of different kinds of rates are not proper in determining con- troversies under section 4 of the Act. Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C. 596, 601. (f) Comparisons of different kinds of rates are not controlling in determining the reasonableness of rates under section 1 of the Act. Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C. 596, 602. (g) Comparisons with rates over other lines and between other points for similar distances and under similar con- ditions are persuasive in determining the 324 EVIDENCE, §13 (1) (h)— (u) reasonableness of the rate. Victor Mfg. Co. V. S. Ry. Co., 21 I. C. C. 222, 228. (h) Where comparative statements of mileage and per ton mile earnings are submitted by complainants as evidence of alleged discrimination in favor of com- petitive points the exhibits are a more potent argument if the defendants were the only ones serving the competitive points. Anadarko Cotton Oil Co. v. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 45. (i) Traffic demanding special service in point of train speed cannot justly be compared with traffic which is not given such consideration Waco Freight Bu- reau V. H. & T. C. R. R. Co., 19 I. C. C. 22, 26. (j) No reason why rates should great- ly exceed similar rates upon other roads in other portions of the country where density of traffic and conditions of op- eration are analogous. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 223. (k) Rates to competitive pointrf are not fair standards of reasonableness of rates to non-competitive points. Corpora- tion Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 308. (1) Dissimilarity of location and com- petitive conditions at two points prevent the proper measuring of the rate at one by that at the other. Florida Cotton Oil Co. V. C. of G. Ry. Co., 19 I. C. C. 836, 339. (m) Comparison with rates through- out the country on the commodity in- volved is proper, especially where simi- lar traffic conditions obtain. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 402. (n) Combination via one line cannot be applied to shipment moving via an- other. Webster Grocer Co. v. C. & N. W. Ry. Co., 19 I. C. C. 493, 495. (o) It is not possible to compare the ton-mile charge in the territory com- plained of with the charge in other terri- tory where traffic is more dense and the cost of operation is less. Acme Cement Plaster Co. v. C. G. W. Ry. Co., 18 I. C. C. 19, 20. (p) It is not sufficient to prove the rate via New Orleans or New York from Pennsylvania to California unreasonable by merely showing the rate via Chicago and the rates from other coke producing points to Los Angeles. Spreckels Broth- ers Commercial Co. v. Monongahela R. R. Co., 18 L C. C. 190, 191. (q) The unreasonableness of a rate cannot be established by comparing it with the rate to a point situated at the farther edge of territory taking a blan- ket rate, when the purpose of the com- parison is to show the rates charged with respect to distances involved. Bash Fer- tilizer Co. V. Wabash R. R. Co., 18 I. C. C. 522, 523. (qq) Freight rates are controlled by various and varying conditions, and therefore rates in one section furnish no reliable standard by which to meas- ure the reasonableness of rates in an- other section where dissimilar conditions prevail. Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co.. 17 I. C. C. 30, 34. (r) Comparison of rates with those in other sections fail when defendant operates at extremely high cost. Sunny- side Coal Mining Co. v. D. & R. G. R. R. Co., 17 I. C. C. 540. (rr) Before the Commission can con- clude that a rate on a given commodity is too high, because it is higher than some other rate named, it must know that the rate selected as the standard of comparison is a reasonable and a fair one. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 83. (s) One of the most satisfactory tests of the reasonableness of the rates of one carrier is a comparison with the rates of other carriers operating in the same territory under the same general con- ditions. Chamber of Commerce of Mil- cvaukee v. C. R. T. & P. Ry. Co., 15 I. C. C. 460, 466. (ss) Where a rate on some other commodity is quoted to prove that the rate complained of is unreasonable, the mere fact that such other rate is in effect or has been for a long time in effect does not indicate that it is a reasonably high rate and a proper rate to be used as a standard of com- parison. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 83. (t) The courts and the Commission have said one of the most certain means of measuring rates is by comparison. Kansas City Cotton Mills Co. v. C. R. I. & P. Ry. Co., 14 I. C. C. 468, 473. (u) The unreasonableness of a rate cannot be established by comparison EVIDENCE, §13 (1) (v)_§13 (2) (i) 325 with rates on other lines operating in different territory, where no evidence is offered to explain the conditions under which such rates were established, or to compare the circumstances of carriage in such other territory with the move- ment between the points in question. Crutchfield & Woolfolk v. L. & N. R. R. Co., 14 I. C. C. 558, 559. (v) The erroneous application of a rate lower than the lawfully published rate to a given point is not evidence that a higher lawful rate to the same point is unjust or unreasonable. Bovaird Sup- ply Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 61. (w) A comparison with rates in other parts of the country where physical, com- petitive and traffic conditions exist is insufficient to establish the unreasonable- ness of rates. Rhinelander Paper Co. v. Northern Pacific Railroad Co., 13 I. C. C. 633, 634-637. §13. (2) Divisions and Joint Rates. See Divisions, §7; Througln Routes and Joint Rates, §14. (a) The division of a joint rate is a matter for agreement among the par- ticipating carriers, and is not subject to review by the Commission upon complaint by a shipper. It may be con- sidered as evidence bearing upon the reasonableness of a rate, however. Reno Grocery Co. v. S. P. Co., 23 I. C. C. 400, 401. (aa) Comparisons of divisions re- ceived by carriers may be considered in connection with other evidence in deter- mining the reasonableness of a par- ticular rate. Lindsay Bros. v. L. S. & M. S. Ry. Co., 22 1. C. C. 516, 517. (b) The proportions received by car- riers in the division of joint rates ordi- narily affords little basis upon which to determine the reasonableness- of the joint rates. Stiritz v. N. O. M. & C. R. R. Co., 22 I. C. C. 578, 581. (c) The Commission investigated the advance in the rates on cattle from Kan- sas City to the Mississippi River from 14%c to 17c per 100 lbs., on hogs from 161/^c to 181/^c and on sheep from 17i/^c to 20c. It was contended by defendants that one of the chief reasons for the ad- vance was for the purpose of equalizing conditions between markets by advanc- ing Kansas City rates while making no advance from Omaha. HELD, the pro- portion of a through rate that a carrier receives is not necessarily the measure of reasonableness for a rate between two specific points. In Re Advance of Rates on Live Stock, 21 I. C. C. 119, 122. (d) The mere fact that one road is willing to accept a given division is not suflacient reason for establishing a given rate. Bott Bros. Mfg. Co. v. C. B. & Q. R, R. Co., 19 I. C. C. 136, 137. (e) The Commission does not regard the divisions of rates as in anywise con- clusive as to the reasonableness of rates between certain points, but such divi- sions are sometimes of significance. Railroad Commission of Nevada v. S. P. Co., 19 L C. C. 238, 252. (f) The reasonableness of a rate can- not solely be tested by comparison with the division of a joint rate which the car- rier sees fit to accept, unless upon a showing that the division of the joint rate is less than the cost of the service. Jennison Co. v. G. N. Ry. Co., 18 I. C. C. 113, 121. (g) Although proportional rates and divisions of rates are not taken as con- clusive in determining the reasonable- ness of either local or joint through rates, they may be highly illustrative and em- phasize the conclusion reached by other tests. Jennison Co. v. G. N. Ry. Co., 18 I. C. C. 113, 124. (h) Divisions may be considered in determining legality of total joint through rate complained of. Copper Queen Consolidated Mining Co. v. B. & O. R. R. Co., 18 I. C. C. 154, 157. (i) Defendants' rate on bituminous coal in carloads from Duluth and Su- perior to St. Paul and Minneapolis was 90c per ton and on anthracite coal was $1.25 per ton, the haul being 155 miles. Such rates compared favorably with those for similar hauls prescribed by the State Commissions of other states. Com- plainant sought to prove the rates un- reasonable by showing the compensation received by defendants as their propor- tion on through hauls. HELD, the evi- dence was insufficient to show the rates attacked unreasonable. The division of through rates which a carrier accepts as its proportion is not the measure of the reasonableness of its separately es- tablished rates. Manahan v. N. P. Ry. Co., 17 I. C. C. 95, 97. 326 EVIDENCE, §13 (2) (jk)— §13 (3) (e) (jk) While a division of a tlirough rate long accepted by a carrier may often be pertinent evidence, it is not a sound final test of the reasonableness of the through rate itself. Nor is the rate per ton mile the generally accepted basis in this country for making up interstate rates. Bulte Milling Co. v. C. & A R. R Co., 15 I. C. C. 351, 362. (1) For the purpose of showing that the divisions received by carriers on do- mestic and export flour from Missouri River points to New York for the haul from the points of origin to the Missis- sippi River and to Chicago were unrea- sonable per se, complainants took the per ton mile revenue received by the carriers for the portion of the haul be- tween St. Louis and Chicago and showed that the divisions complained of were higher than they would be if based on mileage and on the per ton mile revenue received for the St. Louis to Chicago haul. HELD, while a division of a through rate long accepted by a carrier may often be pertinent as evidence, it is n-t a sound final test of the reason- ableness of the through rate itself Bulte Milling Co. v. C. & A. R. R. Co., 15 I C C. 351, 362. (m) An admission that a division of a through rate for a longer distance yields a profit raises a presumption that a high- er local rate for a less distance would yield a reasonable pront. Board of Mayor & Aldermen v. V. & S. W. Ry. Co., 15 I. C. C. 453, 458. (n) A carrier by electing to accept a low division of a through rate for a long haul rather than to stay out of the busi- ness cannot be held to have thereby committed itself to that division as a measure of the reasonableness of its other rates for transportation between the same points, on business from or to different distances, or of a different char- acter. Burnham, Hanna, Munger Co v C. R. I. & P. Ry. Co., 14 I. C. C. 299, 310.' (o) Ordinarily, in considering the rea- sonableness of a through rate the divi- sions received by different lines are not considered, but where the question is upon the inherent reasonablenes of the charge and where a considerable portion of the whole service is in a territory not affected by competitive conditions, the Commission may properly inquire what division each line receives and whether these divisions can properly be reduced. Florida Fruit & Vegetable Shippers' Pro- tective Ass'n V. A. C. L. R. R. Co., 14 I C C. 476, 487. (p) The reasonableness or the unrea- sonableness of a through rate is not to be determined by the divisions thereof. New Albany Furniture Co. v. M J & K C. R. R. Co., 13 L C. C. 594, 599. §13. (3) Divisions and Local Rates. See Divisions, §7. (a) Millers in southern Illinois attacked the rates on flour and other grain prod- ucts of 24.7c per 100 lbs. from their mills to Boston as violating the fourth section when compared with the rates of 21.7 mills from St. Louis, a more distant point. The rates from St. Louis apply on grain or grain products originating west of that market and often west of the Missouri River. The grain in its progress from the field where it grows to the point of final consumption mav pass through several grain markets like Kan- sas City, St. Louis, Chicago and others. Rates are so adjusted that the grain can move at the same charge through several of these markets, the rate from market to market being a stated amount. HELD, following Baltimore Chamber of Com- merce V. B. & O. R. R. Co., 22 I. C. C. 596, that the specific rates from St. Louis are really divisions of a through rate and, therefore, cannot be compared with the local rates paid by complainants, and from this it follows that the fourth section is not violated. Southern Illinois Millers' Ass'n V. L. & N. R. R. Co., 23 I. C. C. 672, 674. (b) The division of a joint rate which a carrier accepts is not a fair measure of its local rate. Jennison Co. v G. N. Ry. Co., 18 I. C. C. 113, 119. (c) The divisions of a joint through rate accepted by a carrier cannot be taken as the measure of the reasonable- ness of its separately established rates. Acme Cement Plaster Co. v. L. S. & M S Ry. Co., 17 I. C. C. 30, 34; Manahan v. N. P. Ry. Co., 17 I. C. C. 95, 97. (d) Divisions of through rate fur- nish no just or fair criterion by which to measure intermediate local rates on the same line of transportation. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 16. (e) A local rate is not necessarily the measure of a division. In Re Through Passenger Routes, 16 I. C. C 300, 310. EVIDENCE, §13 (3) (f)— §13 (6) (f) 327 (f) The Commission is unwilling or- dinarily to accept a division of a through rate as a basis upon which to test the reasonableness of a local rate. Moise Bros. Co. V. C. R. I. & P. Ry. Co., 16 r. C. C. 550, 554. §13. (4) Import and Domestic Rates. (a.) Comparisons are of little value when the rate on one article is com- pared with articles of a much lower grade and the rates on which latter articles are generally import rates made under the stress of acute competi- tion. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 161. (aa) Complainant attacked the rate on spruce lath and lumber from Boston, Mass., to Toledo, O., under the domestic class rate of 19c, as compared with the 14c import rate on mahogany logs from and to the same points. HELD, that there is a fundamental dissimilarity of conditions under which import and do- mestic rates are constructed, and one affords no just criterion for the other; that on the evidence the rate is not shown to be unreasonable. Com- plaint dismissed. Furnace Run Saw Mill & Lumber Co. v. B. & M. R. R., 20 I. C. C. 586. §13. (5) Proportional and Local Rates. See Proportional Rates, IV. (a) While local and proportional rates are not ordinarily comparable, comparis- ons of such rates may be considered in connection with other evidence in deter- mining the reasonableness of a particular rate. Lindsay Bros. v. L. S. & M S Ry. Co., 22 L C. C. 516, 517. (b) The Commission investigated an advance in rates on cattle from Kansas City to the Mississippi River from 14%c to 17c per 100 lbs., on hogs from 16i^c to ISi/^c and on sheep from 17i^c to 20c. It was contended by defendants that one of the chief reasons for the advance was for the purpose of equaliz- ing conditions between markets by ad- vancing Kansas City rates while making no advance from Omaha. HELD, the proportion of a through rate that a car- rier receives is not necessarily tne measure of reasonableness for a rate between two specific points. In Re Ad- vance of Rates on Live Stock, 21 I. C. C. 119, 122. (bb) A proportional rate cannot be ac- cepted as the standard of comparison with local rates. Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 L C. C. 596, 602. §13. (6) State and Interstate Rates. See Reasonableness of Rates, §3 (c). (a) In fixing the interstate rate for Oklahoma City the Commission cannot be governed by the state tariff unless, in its opinion, it is just and reasonable. In Re Investigation of Rates on Meats, 22 I. C. C. 160, 164. (b) State rates afford standards of comparison of greater or less value, ac- cording as they appear reasonable, espe- cially so when acquiesced in by the car- riers; but when a state rate is under protest and being contested, and appears unreasonably low, it is not valuable as a comparison. Willman & Co. v. St. L. I. M. & S. Ry. Co., 22 L C. C. 405. (c) In attacking rates on cross-ties from southeastern Georgia points to Jacksonville, Fla., attention was called to the fact that the interstate rates to Jacksonville are in excess of the Georgia intrastate rates on cross-ties orginating in the same territory; but defendant showed it had several times protested to the Georgia Commission and sought permission to raise its intrastate rates to correspond with the interstate rates, but that Commission withheld its consent. HELD, while state rates are valuable for comparative purposes in fixing a reason- able charge for a transportation service, the assumption of complainant that the action of the defendant in maintaining higher transportation rates on interstate than upon intrastate traffic amounts to unlawful discrimination, is not sound, for it is shown that the condition is one over which the carrier has no control. Baxter & Co. v. G. S. & F. Ry. Co., 21 I. C. C. 647, 648. (d) A state policy is not respected where it interferes with the application of reasonable rates for interstate service. Cobb V. N. P. Ry. Co., 20 L C. C. 100, 103. (e) A rate established by a State Commission affords little value for com- parative purposes. Waco Freight Bu- reau V. H. & T. C. R. R. Co., 19 I. C. C. 22, 26. (f) While upon general principles of comity the action of a State Commission in fixing a rate on state traffic must be treated with all due respect, the Inter- state Commerce Commission has never felt itself bound to accept a state-made 328 EVIDENCE, §13 (6) (g)— §14 (1) (b) rate as a necessary measure of an inter- state rate. Saunders & Co. v. S. P. Co., 18 I. C. C. 415, 421. (g) The Commission is not controlled by the rates established by State Com- missions, unless they seem to be reason- able when applied to interstate move- ments. Bartles Oil Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 146, 148. (h) The Commission will always give all due and respectful consideration to decisions of state commissions. Railroad Commission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 89. (i) A low state concentration rate not being competitive with an interstate rate complained of, it cannot be said that the one compels the other. Railroad Commission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 91. (j) A low state rate is no reason for exacting unreasonable interstate rates. Fort Dodge Commercial Club v. I. C. R. R. Co., 16 I. C. C. 572, 579. (k) No greater sanctity can be P're- sumed in respect of rates established by a state railroad commission than those voluntarily established by carriers. Paola Refining Co. v. M. K. & T. Ry. Co., 15 I. C. C. 29, 31. (1) The rates established by a state commission cannot be taken as conclu- sive of the unreasonableness of higher interstate rates between the same points, since the rates voluntarily established by a carrier are entitled to the same pre- sumption of reasonableness as that at- taching to rates prescribed by a state commission. Paola Refining Co. v. M. K. & T. Ry. Co., 15 I. C. C. 29, 31, 32. (m) The reasonableness of a through rate cannot be determined by a compari- son with a local intrastate rate, plus an independent interstate rate. Marble Falls Insulator Pin Co. v. H. & T. C. R. R. Co., 15 I. C. C. 167. (n) Although rates established by state authority may be valuable for the purpose of comparison, they are not con- clusive of the unreasonableness of a rel- atively higher interstate rate. Hafey v. St. L. & S. F. R. R. Co., 15 I. C. C. 245, 246. (o) The fact that a rate does not cross a state line is no reason why it may not be considered when an inter- state rate over the same line and for substantially the same distance is under examination. Board of Mayor and Alder- men V. V. & S. W. Ry. Co., 15 I. C. C. 453, 459. (p) In determining the reasonable- ness of an interstate rate, the decisions of the several state railroad commissions are worthy of consideration, but the Commission is not justified in accepting a comparison of lower intrastate rates prescribed by the state authorities with those applying on interstate traffic as conclusive of the unreasonableness of the interstate rates. Marshall Oil Co. v. C. & N. W. Ry. Co., 14 I. C. C. 210, 213. (q) There are many reasons why state and interstate rates should be es- tablished in harmony with one another. When the Commission is asked to ex- amine the reasonableness of an inter- state rate, similar rates established by state authority in that territory must have great influence, especially where they have been long acquiesced in by the carriers. Still, these state rates have no binding force upon the Commission. They are standards of comparison of greater or less value, according as they appear to be just and reasonable. Corn Belt Meat Producers^ Ass'n v. C. B. & Q. Ry. Co., 14 I. C. C. 376, 385. (r) While in determining interstate rates similar rates established by state authority must have great influence, espe- cially where they have been long ac- quiesced in by the carriers; still sucn rates have no binding force upon the Commission, and where the Commission finds state rates unreasonable, a through interstate rate may be established by it higher than the sum of the state locals. Corn Belt Meat Producers' Ass'n v. C. B. & Q. Ry. Co., 14 I. C. C. 376, 385. §14. Competition. See Competition. §14. (1) In General. (a) Competition of controlling force cannot be ignored by the Commission in determining whether an advantage in rate at the competitive point is undue or is one not chargeable to the carriers defendant becaiise involuntarily made. Sioux City Terminal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 107. (b) A carrier may voluntarily accept rates lower than it can be required to accept and whether or not a carrier will meet competitive conditions at a partic- ular point rests primarily with it. But this principle does not relieve the cu,r- EVIDENCE, §14 (1) (c) — (pp) 329 rier from the oblit?ation to remove unjust discrimination created by n.eeting com- petitive conditions at one point and re- fusing to meet them at a neighboring point. Chamber of Commerce, Ashbu:n, Ga., V. G. S. & F. Ry. Co., 23 I. C. C. 140, 149. (c) Where carriers, through discrimi- natory rates, produce competitive con- ditions at one point they cannot set up such conditions as a reason for main- taining discriminatory rates at a neigh- boring point. Chamber of Commerce, Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140, 150. (d) The public interest may demand that a carrier shall not avail itself of competitive con.itions to produce dis- crimination. Chamber of Commerce, Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140, 150. (e) If no competitive conditions in- tervene it would be difficult to sustain a higher rate upon wool than upon hops. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 160. (f) In establishing reasonable rates distance is a factor always to be consid- ered, and is sometimes controlling, but established commercial conditions, com- petition of water carriers and competi- tion between railroads with termini at different points may make it impracticable to consider a situation from the stand- point of distance alone. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 205. (ff) Rates governing movement of grain and grain products from the Mis- souri Kiver to the Atlantic seaboard are of a competitive nature. Wisconsin State Millers' Ass'n v. C. M. & St. P. Ry. Co., 23 I. C. C. 494, 495. (g) When competitive conditions are sufficiently potent to compel lower rates to one locality than are maintained by the same carriers to another locality similarly situated such competition may be accepted in justification of a resulting preference to the favored locality, which, but for such competition, might be con- demned as undue or unreasonable. But the mere fact of competition, regardless of its character, will not relieve car- riers from the limitations of section 3. Chamber of Commerce of Newport News V. S. Ry. Co., 23 I. C. C. 345, 353. (gg) A shipper is not privileged to demand a less than the normal rates because of the existence of competition which the carrier does not choose to meet. Cohen & Co. v. Mallory S. S. Co., 23 I. C. C. 374, 377. (h) A competitive rate to one point is not a measure of the rate to a non- competitive point. Georgetown Ry. & Light Co. V. N. & W. Ry. Co., 22 I. C. C. 144. (i) If carriers attempt to rely upon competition as a justification for a dis- criminatory adjustment of rates they must show not only the fact but the rea- son for it. If there is no reason outside the mere whim of their traffic managers then the roads must bear the burden of the poor company in which they find themselves at competitive points. Suf- fern Grain Co. v. I. C. R. R. Co., 22 I. C. C. 178, 181. (j) Where a railroad relies on com- petition to justify a rate it must show that such competition is justified by cir- cumstances other than the mere whim of a traffic manager. Suffern Grain Co. V. I. C. R. R. Co., 22 I. C. C. 17G, 181. (k) A less-distant junction point served by an additional carrier seems entitled to a lower rate. Gamble-Robin- son Commission Co. v. St. L & S. F. R. R. Co., 19 I. C. C. 114, 115. (1) Competition is an important ele- ment in determining reasonableness of rate. Corpo-ration Commission of N. C. V. N. & W. Ry. Co., 19 I. C. C. 303, 309.- (m) An apparent discrimination may not be unjust, because of competitive conditions. Corporation Commission of N. C. V. N. & W. Ry. Co., 19 I. C. C. 303, 309. (n) Carriers substantially at their pleasure may or may not adjust their rates to competitive conditions so long as no undue discrimination or unlawful preference results. Harbor City Whole- sale Co. V. S. P. Co., 19 I. C. C. 323, 329. (o) The reasonableness of a rate from a non-competitive point is not measured by a rate from competitive points. Flor- ida Cotton Oil Co. V. C. of G. Ry. Co., 19 I. C. C. 336, 339. (p) Rates to local points must be de- termined independent of comparisons with competitive point3. Rainey & Rog- ers V. St. L. & S. F. R. R. Co., 18 I. C. C. 88, 89. (pp) Interests of competing lines must be considered in fixing rates, and 330 EVIDENCE, §14 (1) (q)— §14 (4) (a) not merely that line which could handle the business the cheapest. Receivers' & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 464. (q) Competition has a more or less definite relation to the rate that carrier may reasonably demand. Memphis Cft- ton Oil Co. V. I. C. R. R. Co., 17 I. C. C. 313, 318. (r) While a carrier may establish a lower rate to meet competitive conditions and the Commission takes into account such conditions in passing upon the rea- sonableness of the rate adjustment, it does not follow that in a particular in- stance the Commission will condemn an advance of a rate which was fo-rmerly maintained to meet competition between different producing points. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 558. (rr) A carrier may voluntarily make, under the force of controlling competi- tion, rates which it might not be re- quired to make. Indianapolis Freight Bureau v. Penn R. R. Co., 15 I. C. C. 567, 576. (s) The rate to Nashville is forc""' by competitive conditions not existing at Gallatin, and cannot be taken as star '- ard by which to measure the Gallatin rate. Flint & Walling Mfg. Co. v. G. R. & I. Ry. Co., 14 I. C. C. 520. (t) Where, owing to competition, a rate is unnecessarily low it affords no basis for comparison. Flint & Walling Mfg. Co. V. G. R. & I. Ry. Co., 14 I. C. C. 520. (u) A reduction due to competitive conditions precludes a finding that the rate actually charged was unrea- sonable. Reparation denied. Advance Thresher Co. v. M. C. R. R. Co., TJnrep. Op. 283; Western States Portland Ce- ment Co. V. M. P. Ry. Co., Unrep. Op. 363. (v) Lower rate is in effect from Al- toona. Pa., than from Burnham, Pa., due to competitive conditions. Goodman Mfg. Co. V. P. R. R. Co., Unrep. Op. 570. §14. (2) Potential Competition. (a) Without a ship upon it the ocean has the power to restrain the upward tendency of rail rates. Railroad Com- mission of Nevada v. S. P. Co., 21 I. C. C. 329, 352. (b) It is not the amount of the move- ment by water, but the ever-present pos- sibility of that movement, that is sig- nificant. City of Spokane v. N. P. Rv. Co., 21 I. C. C. 400, 418. (c) Potential competition is consid- ered in fixing rates. Audley Hill & Co. V. S. Ry. Co., 20 I. C. C. 225, 226. (d) The competitive influence of the Erie Canal has to a considerable extent disappeared, but it still produces pro- found effect upon grain rates from Chi- cago to the Atlantic seaboard. Board of Trade of Chicago v. A. C. R. R. Co., 20 I. C. C. 504, 507. (e) The potential competition through the Tehuantepec route justifies low rates to the Pacific coast. Kentucky Wagon Mfg. Co. V. I. C. R. R. Co., 18 I. C. C. 360, 362. (f) So long as there was actual or potential competition, Memphis could properly have an advantage, but when that competition disappeared no reason existed to continue such advantage. Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 320. §14. (3) Railroad Competition. See Discrimination, §8 (3); Equaliza- tion of Rates, §4 (2); Facilities and Privileges, §21 (ee) ; Long and Short Hauls, §9; Reasonableness of Rates, §8 (2). (a) Most of the great systems in Of- ficial Classification territory have existed in substantially their present form for the past twenty-five years. Originally there was the most active competition in the rate of transportation by rail, and the tariffs in Official Classification terri- tory are largely the product of that com- petition. There is a strong presumption that rates so arrived at are reasonable rates. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 259. (b) Rate wars were unreasonable and their results cannot be used as meas- ure of reasonableness. Morgan Grain Co. V. A. C. L. R. R. Co., 19 I. C. C. 460, 463. §14. (4) Rall-and-Water Competition. See Equalization of Rates, §4 (3); Reasonableness of Rates, §8 (3). (a) Where at one point water and rail competition exists to an extent not present at another point the conditions are so dissimilar that the rates to the former are not necessarily a measure of a reasonable rate to the latter. George- EVIDENCE, §14 (4) (b)— §14 (5) (j) 331 town Railway & Light Co. v. N. & W. Ry. Co., 22 I. C. C. 144. (b) The rates upon grain and grain products between points of production in the west and the Atlantic seaboard are low in proportion to other commodities. A rate of 16c per 100 lbs. from Chicago to New York yields a ton mile revenue of about 3.5 mills. These low rates are due partly to water competition and partly to severe rail competition in the past which has produced a low level of rates. In Re Advances in Rates for the Transportation of Flaxseed in Carloads, 23, I. C. C. 27h, 275. §14. (5) Water Competition. See Equalization of Rates, §4 (4); Export Rates and Facilities, 111 (eee) ; Long and Short Hauls, §10; Reasonableness of Rates, §8 (4). (a) The fact that there is a water route from a given point to a certain destination, affording a low and reason- able rate, does not justify the Commis- sion in permitting the ■ il carriers to charge a high and unreasonable rate on traffic between these points, S, P. Co. V. I. C. C, 219 U. S. 433, 451, 31 Sup. Ct. 288, 55 L. ed. 283. (aa) Water competition has an effect upon transcontinental rates from west to the east. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 160. (b) Ocean competition, as well as circumstances and conditions beyond the seaboard, are to be considered in determining whether differences in rates as between foreign and domestic traffic are unreasonable or unduly discrimina- tory. Chamber of Commerce of New- port News V. S. Ry. Co., 23 I. C. C. 345, 355. (c) A rate forced by water com- petition cannot be used as a standard of reasonableness. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 163. (cc) While water competition may be availed of by a carrier as a justifica- tion for rates that are lower than would otherwise be lawful, the existence of such competition is not in itself ground upon which shippers may de- mand a lower rate. Cohen & Co. v. Mal- lory. S. S. Co., 13 I. C. C. 374, 376. (d) A carrier may in its own interest meet water competition, but it is not the privilege of a shipper to demand less than normal rates because of the exist- ence of a competition which the carrier in its own behalf does not ch ose to meet. Cohen & Co. v. Mallory S. S. Co , 23 I. C. C. 374, 377. (dd) A water compelled rate is not a measure of a normal all-rail rate. Cohen & Co. v. Mallory S. S. Co., 23 I. C. C. 374, 377; In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 163. (e) Lower rates which are forced by water competition cannot be accepted as a measure of reasonableness of rates from points where such competition does not exist. South Atlantic Waste Co. v. S. Ry. Co., 22 I. C. C. 293, 296. (f) It is fairly established that the in- fluence of water competition does not cease at the Pittsburg-Buffalo line, but extends westward as to certain partic- ular commodities, and doubtless for some distance west of Pittsburg the car- riers may properly make rates which will prevent the movement eastward to the seaboard, instead of westward over their line, but the records of the Commission for twenty years fail to disclose any but the most fragmentary evidence that sea competition extends to Chicago. Rail- road Commission of Nevada v. S. P. Co., 21 L C. C. 329, 355. (g) It is well known that rates in the territory adjacent to the Mississippi River are influenced by water competi- tion, and as the distance from the river increases the influence of the competi- tion diminishes. Anadarko Cotton Oil Co. V. A. T. & S. F. R. R. Co., 20 1. 0. C. 43, 45. (h) Rates are not properly compar- able where water competition controls. Truck Growers' Ass'n v. A. C. L. R, R. Co., 20 I. C. C. 190, 194. (i) Terminal rates such as a blanket rate from the Mississippi River to the Atlantic seaboard to all Pacific terminals are low and not a fair measure of rates generally. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (j) There is great force in Spokane's claim that no schedule can be right which permits merchandise to be hauled from the east over the Cascade Moun- tains to Seattle and back again to con- sumer upon east side of that mountain range. City of Spokane v. N. P. Ry., 19 L C. C. 162, 167. EVIDENCE, §14 (5) (k)— (v) (k) That carriers may meet water competition at whatever point and to whatever extent they see fit cannot be admitted. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 168. (1) Under the Supreme Court deci- sions, the Seattle rate cannot he used as a standard by which to measure the Spo- kane rate. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 174. (m) There has been little difficulty experienced from time to time by the rail carriers in raising rates to the Pa- cific coast; the only live water competi- tor on the Pacific to-day is a line which bases its rates on the rail tariffs, and the rates of both the rail and the wnter lines change simultaneously. Ways can be found, and have been found, by which the presence of the ocean as a control- ling or even greatly meddlesome factor in the fixing of railroad rates can be nullified. There is no doubt but that rail rates have been influenced at times to all the Pacific ports by water carriers, and of course there is a possibility that at any time this water competition may become seriously aggressive and potent. The United States is not a maritime na tion at present and her great coast line on the Pacific side is served in great part by such water carriers as the railroads permit to live. Railroad Commission of Nevada v. S. P. Co., 19 I. 0. C. 238, 250. (n) The mere fact of water competi- tion is not proof that rail rates are so low as to deprive a carrier of a reasonable return. R. R. Commission of Nev. v. S. P. Co., 19 I. C. C. 238, 250. (o) Competitive conditions, when shown to exist, may justify the fixing of rates which are not in line with the rates to points where such compatltion does not obtain. Rainey & Rogers v. St. b. & S. F. R. R. Co., 18 T. C. C. 88, 89. (p) Pacific coast terminal rates are compelled by water competition. Ken tucky Wagon Mnfg. Co. v. I. C. R. R. Co., 18 I. C. C. 360, 363. (q) Rates from the Atlantic coast to southern points are fixed by the water routes, and no comparison can be made with all-rail rates from interior points to the same destinations. Recoivers & Ship- pers' Asso. of Cincinnati v. C. N. O. oc T. P. Ry. Co., 18 I. C. C. 440, 453. (r) For many years prior to Jan. 1, 1909, the rate on oil in barrels from New York, Cleveland and Minneapolis to San Francisco and Seattle was 90 cents per 100 lbs. From Jan. 1 to June 1, 1909, when the shipments in question moved, defendants had in effect a rate of $1.00. After June 1, 1909, the 90c rate was restored. The evidence indicat- ed that the 90c rate was forced by water competition. HELD, that a compelled rate could not be taken as the standard by which to measure the reasonableness of a voluntary rate and that therefore the maintenance of the 90c rate did not prove the unreasonableness of the $1 rate. Reparation denied. Fuller & Co., v. P. C. & Y. Ry. Co., 17 I. C. C. 594, 595. (s) While water competition may be availed of by a carrier as its justification and excuse for rates that are lower than would otherwise be lawful, the existence of such competition is not in itself a ground upon which a shipper may de- mand a lower rate. Lindsay Brothers v. B. & O. S. W. R. R. Co., 16 L C. C. 6, 8. (t) A factor to be considered in mak- ing rates from Chicago and St. Louis to St, Paul is the competition of lake lines from Chicago. Indianapolis Freight Bu- reau V. C. C. C. & St. L. Ry. Co., 16 I. C. C. 276, 281. (u) Carriers may, for the purpose of meeting water competition, make rates lower than would otherwise be justi- fiable, even to the extent of charging a less rate to the more distant point. The carrier may determine for itself whether it will or will not meet such water competition. While, however, the carrier may in the first instance settle its policy in this respect, it must act under certain limitations. It cannot be permitted to compete at one point and decline to compete at another, where all conditions are the same; nor should it, ordinarily, be allowed to compete one day and decline to compete the next. The public has the right to require equal and uniform treatment within the bounds of reason. Cases might there- fore arise where the Commission would require the continuance of a rate es- tablished to meet such competition. Darling & Co, v, B, & O. R. R. Co., 15 I. C. C. 79, 87. (v) A water port is entitled to what- ever advantage it can obtain through transportation by water, but its location does not entitle it to lower rates by rail, and although such preference may EVIDENCE, §14 (5) (w)— §17 (d) 333 lawfully be accorded by a carrier in the protection of its own interests, it should not be required; except in cases where manifest wrong would otherwise result. Darling & Co. v. B. & O. xt. R. Co., 15 I. C. C. 79, 87. (w) The Commission does not favor the existence of lower rates at ports put into effect by rail carriers to meet water competition. Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, 87. (x) Carriers cannot be compelled, as a matter of law, to meet water competition; they do it of their own volition, or whenever the same is potent enough to compel them to do so in order to secure the traffic. In each instance the carrier determines for itself whether such water competi- tion has sufficient influence on the traffic to make it reduce its rates. Baicbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. (y) There may be water competition at each of two points, and yet a differ- ence in rates to those points may be justified. Bainbridge Board of Trade V. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. (z) A rule that whenever all-rail car- riers establish rates to a given point they must take notice of the independ- ent water rates from that point and of the territory that can be reached there- under and must make such adjustment as will prevent the use of the water rates from that point to another point, resulting in discrimination against that other point by reason of its all-rail rate adjustment, has no support in law, in public policy or in sound transportation principles. Bainbridge Board of Trade V. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 590. §15. Contract Relying on Rate. See Infra, §27 (a); Branch Lines, §1 (J); Minimums, §7 (i); Through Routes and Joint Rates, §22 (c). (a) A contract based on a lower rate existing before an advance is no ground alone for condemning such advance. Bar- num Iron Works v. C. C. C. & St. L. Ry. Co., 18 I. C. C. 94; American Creosote Works V. I. C. R. R. Co., 18 I. C. C. 212. §16. Cost of Production. (a) The fact that the cost of produc- ing wool has increased while its market price has fallen is no reason why le^s than a reasonable freight rate should be established for its transportation. In Re Transportation of Wool, Hides and Pelts, 2o I. C. C. 151, U)G §17. Cost of Operation. See Advanced Rates, §7 (2), §11; Transportation, §14. (a) A definite and universal allot- ment of funds from the charge imposed for the movement of each character of traffic to provide for interest, dividends and surplus is not proper or justifiable, for the plain reason that it entirely abrogates all classification. In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 604, 625. (aa) It is unfair to take from the carrier whatever of profit it may secure by reason of improvement in its plant and adoption of the most modern meth- ods. If our railroad systems are to remain in private hands, stimulus must be given to the initiative and imagina- tion of railroad operators. The com- munity may not take with justice what- ever comes by the labor or time saving devices adopted by those who serve the public, nor may the carriers absorb the profits of the shipper resulting from similar efforts. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (b) Certain portions of a system of railroad cannot be segregated from the whole and the expenses and earnings charged and credited to such portions on a mileage pro rata basis. In Re Investi- gation of Advances in Rates on Grain, 21 I. C. C. 22, 25. (bb) Lack of through tonnage in South Dakota affects the volume of traffic, de- creases the average trainload, Increases operating expenses and is therefore re- flected in net earnings. In Re Investiga- tion of Advances in Rates on Grain, 21 I. C. C. 22, 34. (c) A consideration which makes against a comparison of rates from South Dakota with those from other s*^tes is Ihe fact that fuel for locomotive use in South Dakota must be hauled 'ong dis- tances, thus increasing its cost. In Re Investigation of Advances in Rates on Grain, 21 I. C. C. 22, 35. (d) Where a rate of $1.35 per ton on cement from Martin's Creek, Pa., to Philadelphia, Pa., 90 miles, is defended as against a rate from Martins Creek to 334 EVIDENCE, §17 (e) — (1) Jersey City, 114 miles, of $1.10 per ton, on the ground that at Jersey City the defend- ant has two public team tracks where car- load freight is delivered, while at Phila^ delphia it has about 60 team tracks, dis- tributed about the city within a track mileage of about 400 miles. HELD, ter- minal facilities such as these are entitled to weigh in the consideration of the rea- sonableness of the rate, and where the commoiiiy is of the T^<'ii:hi and bulk of cement such facilities broadly distributed are of value to the consignees, in that the amount of cartage is not nearly so great as if deliveries were confined to one or two points. Rate to Philadelphia is un- reasonable to the extent it exceeds $1.10 per ton. Maritime Exchange v. P. R. R. Co., 21 I. C. C. 81, 84. (e) Increased density of traffic, ma- terial decrease of the ratio of operating expenses to income, elimination of grades, increased trainloads, and car capacity are factors that ought to make fo" lower rates. Meeker & Co. v. L. V. R. R. Co., 21 I. C. C. 129, 162. (f) In determining reasonable rates to be charged by the carrier, the fact that the cost of operation has increased and will increase in proportion to gross op- erating revenue is not important, because even though the percentage of net to gross is less, still the total net may be more, and the percentag-^ of net to value may also be more. The quDsUon to be determined is whether the net return upon the value of the property devoted to the public service i.-? sufficient. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 275. (g) The public is demanding a better and safer railroad. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 276. (h) In combating a general advance in rates in Official Classification terri- tory the shippers contended that by the use of "scientific management" $300,000,- 000 annually could be saved by the prop- er application of these methods to the business of railroading in the United States. The witness who testified to this stated that such methods were not in actual operation in over 1-lOth of 1 per cent of all the manufacturing estab- lishments in this country. HELD, the system is everywhere in an experimental stage and the Commission cannot find that the defendants could make good any part of their actual advances in wages by the introduction of scientific manage- ment. In Re Advances in Rates — East- ern Case, 20 I. C. C. 243, 279. (i) Railroad material and supplies, with the exception of fuel and ties, cost les^, on the average than in any of the past ten years. In Re Advances in Rates —Western Case, 20 I. C. C. 307, 368. (j) The cost of operation is somewhat more, and corresponding rates may prop- erly be somewhat higher in intermoun- tain territory than east of the Missouri River. City of Spokane v. N. P. Ry. Co., 19 L C. C. 162, 173. (k) The Commission does not recog- nize the right of a carrier to single out a piece of expensive road and make the local traffic thereon bear an undue por- tion of the expense of its maintenance or of its construction. A road is built and operated as a whole and local rates are not to be made with respect to the difficulties of each particular portion charging the cost of a bridge to the traf- fic of one section or the cost of a tunnel to traffic between its two mouths. Upon the S. P. Co. millions of dollars have been expended in building the Lucin cut- off just west of Ogden, a monumental bit of construction which traverses the Great Salt Lake. If rates from one side of the lake to the other were based upon the cost of this cut-off they would be unconscionable. If the position of the defendant were followed by the carriers generally (which it is not, nor even by itself) it would result in rates that would vary from mile to mile as the cost of road per mile varies. Traffic Bureau of Merchants Exchange v. S. P. Co., 19 I. C. C. 259, 261. (1) The operating officials of the Cen- tral Pacific Railroad testified that the road was now doing the maximum busi- ness which could be done economically. In other words that an increase in busi- ness would add to the expense per unit of operation. Not being in a position to urge that a reduction in rates was un- justifiable because of the lightness of its traffic, the defendant here contends that the Commission would not be justi- fied in reducing the rate because business would increase and the expense of per- forming the service would increase. The contention seems to be that the Commis- sion must not reduce the rate when the traffic is light, and when the traffic is heavy it must not reduce the rate be- EVIDENCE, §17 (m)— §18 (f) 335 cause it will increase the cost of operation. Traffic Bureau of Merchants Exchange v. S. P. Co., 19 I. C. C. 259, 263. (m) The difficult operation of roads should be passed upon in considering the reasonableness of the rates involved. Ce- dar Hill Coal & Coke Co. v. Colo. & So. Ry. Co., 16 I. C. C. 387, 391. (n) There is no standard by which either the cost of the service or the rea- sonableness of creamery rates can be fixed with ar^y certainty. Beatrice Creamery Co. V. I. C. R. R. Co., 15 I. C. C. 109, 132. (o) It cannot be doubted that ter- minal expenses in a great center like Kansas City are greater than in a small- er place where terminal work can be done more expeditiously and economic- ally. Kansas City Transp. Bureau v. A. T. & S. F. Ry. Co., 15 I. C. C. 491, 493. (p) Everything else remaining the same, an increase in cost of operation would justify an advance in rates. Other things remaining the same, increase in traffic requires a decrease in rates. It may, therefore, happen that the increase of traffic will more than offset the in- crease in operating expense. Cattle Raisers' Ass'n of Texas v. M. K. & T. Ry. Co., 13 I. C. C. 418, 430. (q) The expense incident to the maintenance of through service may not be justified by the amount of traffic secured. Hamilton v. American Express Co., Unrep. Op. 355. §18. Cost of Service. See Express Companies, §24 (a), (b); Minimums. §1 (b); Reasonableness of Rates, §9. (a) The revenue per-ton-mile in itself Is not a sufficient basis for a judgment regarding the reasonableness of the rate which yields that revenue. Inquiry must be made regarding the expense incurred In doing the business. Nebraska State Ry. Commission v. C. B. & Q. R R. Co , 23 I. C. C. 121, 125. (aa) There must finally be an inti- mate relation between the actual cost of transportation and the rate paid by the public. The cost of carriage is de- creased in proportion as the car load- ing can be increased. In Re Transpor- tation of Wool, Hides and Pelts, 23 I. C. C. 151, 166. (b) Cost of service is not to be ig- nored in determining the reasonable- ness of a rate. In Re Advances on Cotton, 23 I. C. C. 404, 408. (bb) In fixing rates on competitive ar- ticles relation should be determined on the basis of the difference in the cost of the service, and many of the other con- siderations entering into the establish- ment of rates upon independent or iso- lated articles should be in a large part eliminated. Carstens Packing Co. v. O. & W. R. R. Co., 22 I. C. C. 77, 81. (c) In the end there must be some relation between the cost of service and the rate. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 316. (cc) Cost is generally an important element in arriving at a judgment with respect to a rate. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 652. (d) It is not beyond the range of pos- sibility to approximate the cost of carry- ing freight as distinguished from passen- gers over a certain division or even the carrying of a certain kind of freight when this constitutes a large portion of a car- rier's traffic over such division. Certain- 1>, for purposes of comparison, such cost figures could be ascertained upon any road by the settling of a few questions by this Commission, or between the car- riers themselves. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 615. (dd) Cost of service is ascertainable with much more precision and capable of more tangible expression than the value of the service. Nevertheless both cost and value must be considered as well as all other elements entering into a rate. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 652. (e) A definite and uniform allotment of funds from the charge imposed for the movement of each character of traffic to provide for interest, dividends and surplus is not proper or justifiable, for the plain reason that it entirely abro- gates all classification. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (ee) The rate made by the carrier must be just and reasonable for the service which it gives and should have relation to the cost of that service and the character of the commodity trans- ported. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (f) What weight is to be given to costs is to be determined in each case. 336 EVIDENCE, §18 (g)— §20 (b) It is generally an important element. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 652. (g) Rates are not fixed solely with reference to a weaker competing line; but the cost of handling traffic over a short and easy line must largely influence the rate. Commercial Club of Salt Lake City V. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 222. (h) It is more expensive to handle less-than-carload freight. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397. 401. (i) To divide a railroad system into its constituent elements and to require that each shall show a surplus commen- surate with that yielded by the business of the system as a whole in justification of a particular rate on one commodity, is not the proper basis upon which to measure the justness of such rate. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 17. (j) The comparative cost of service to carriers cannot be made the sole basis of rate making. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 593. (k) To show the cost of moving a loaded freight car one mile, defendants took the total mileage of loaded freight cars and divided the total operating ex- penses and taxes by same. There was nothing to show the cost of the passen- ger service, nor how much for mainte- nance and equipment was embraced in the total expense. HELD, such a basis of estimating was unreliable. Oregon & Washington Lumber Mfrs.' Ass'n v U. P. R. R. Co., 14 L C. C. 1, 9. (1) The cost of moving a ton of freight one mile arrived at by assuming that said cost is equal to that of moving a passenger one mile is unreliable, since such assumption is based largely on guesswork. Oregon & Washington Lum- ber Mfrs.' Ass'n v. U P. R. R. Co. 14 I. C. C. 1, 10. (m) It is seldom proper to measure the reasonableness of a freight charge by what it would cost the shipper to j>er- form the service himself by other means; for railroads have become a part of a commercial and industrial haul and must be recognized as such in considering what may be properly charged for their services. American Asphalt Ass'n v. Uintah Ry. Co., 13 L C. C. 196, 204. §19. Credit. See Advanced Rates, §7 (3); Credit Account. (a) It was urged as a reason for per- mitting an advance in freight rates in Ofllcial Classification territory that the increase was necessary to maintain the credit of American railroads. It ap- peared that in 1895 the average rate paid by all the railroads of the country was 4.69 per cent. In 1909 this figure had been reduced to 3.9 per cent and the sav- ing computed upon the indebtedness of 1909, represented by this decrease in the rate of interest, would have amounted to $7/,000,000. HELD, the credit of Ameri- can railroads has gained rather than lost in ten years, and if the credit of Ameri- can railways is still sound either at home or in foreign money markets it is not because of, but in spite of, the declara- tions of railroad operators. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 251, 252. %^9%. Custom. See Compress Companies and Cliarges, il (c); Courts, §11 (t). §20. Distance of Haul. See BIanl- plicable at Johnson City. For some time the milling-in-transit rate at both New- port and Johnson City had been 2c per 100 lbs. On March 27, 1908, the minimum charge at Newport was raised from $5 to $6 per car; in April the Johnson City rate was also raised to $6. On Jan. 15, 1909, Johnson City was given a flat rate of $2 per car, the Newport rate remain- ing unchanged. On May 16, 1910, the rate at Johnson City was made Ic per 100 lbs. HELD,, on the cars which moved into Newport between Jan. 15, 1909, and May 16, 1910, the amount of reparation should be computed by deducting $2 (the rate at Johnson City) from the transit charge collected from complainant. On shipments from May 16, 1910, to Nov. 28, 1910, the amount of reparation should be awarded on the basis of dividing the transit charge by two. Spiegle & Co. V. Southern Ry. Co., 22 1. C. C. 82, 83. (g) Transit privileges to give to ship- pers the right to try various markets are 398 FACILITIES AND PRIVILEGES, §15 (h)— (k) of great benefit and as these markets multiply it becomes evident that carriers may with propriety impose a reason-^.ble charge for the service. In Re Advance on Live Stock and Packing House Prod- ucts, 22 L C. C. 160, 174. (h) The rates charged by the Nashville, Chattanooga & St. Louis Ry. on stave and heading bolts from Tennessee points to Paducah, Ky., were attacked as unrea- sonable and discriminatory. Stave bolts are logs cut up into 3o-inch lengths. Heading bolts are shorter, and about two-thirds of the bolt is lost in process of manufacture. The rates between local points were less than the rates to junc- tion points, such as Paducah. The rates had been maintained for many years. The rates on stave bolts were higher than on logs. Transit rates were in ef- fect allowing a refund for the outbound haul of the manufactured product, and the drawback averaged 1.6c per 100 lbs., or 17.2 per cent of the inbound rate. In 1908 all transit rates were withdrawn and flat rates established slightly higher than the transit rates. The average of the old net rate was 7.48c for a distance of from 9 to 203 miles, while for the present scale it was 7.94c. The I. C. R. R. maintained transit rates somewhat lower than defendant. It received the outbound shipments for long hauls over its lines. The rates on lumber between Omaha and Kansas points were shown to be lower, and that defendants' lines traverse a mountainous country unfit for agricultural purposes, and that timber once cut is not replaced by products of the field. Defendant showed that from stave-bolt originating points situated equi- distant from local stave-bolt manufac- turing points and from Paducah the ag- gregate cost of the raw material into the local point and the finished product out was higher than in and out of Paducah. HELD, no reason appeared requiring defendant to establish transit rates or rates as low as those of the I. C. R. R., but the rates to Paducah are unreason- able in so far as they exceed the rates to local points. Paducah Cooperage Co. V. N. C. & St. L. Ry., 22 L C. C. 226, 231. (i) Complainant in a supplf^mental proceeding attacked the withdrawal of certain milling-in-transit rates at Cedar Rapids, la., under which corn was manu- factured into starch and the starch for- warded to destinations at the corn rates. In the original proceeding, under the con- ditions then existent, it was found that the withdrawal of the transit privileges created unjust discrimination against complainant. No order was issued be- cause defendants restored the transit privileges, but subsequently withdrew them. It appeared that the conditions which obtained at the time of the pre- vious hearing had been materially changed, inasmuch as there is now no transit on starch at Pekin, 111., and there will be none at Keokuk, la., and other competitive points. HELD, the question of whether or not conditions and circum- stances have changed is of primary if not of controlling importance. That in- asmuch as through transit rates on starch from point of origin of the corn to the destination of the starch and the pro- posed corn rates to Cedar Rapids or to the basing points plus the starch rates from Cedar Rapids or from the basing points result in earnings as low as 5.20 mills per ton mile, while the maximum is 8.7 mills per ton mile, the earnings are in the majority of instances lower for corresponding destinations than the rates on corn from Omaha, Neb., and western Iowa points to Chicago, and the proposed rates to Cedar Rapids will in no instance be higher than those to other points at which starch is manu- factured, and in some instances will be lower. Under the circumstances the supplemental petition must be dismissed. Douglas & Co. V. C. R. I. & P. Ry. Co., 21 L C. C. 97. (j) A privilege, savoring as it does of a gratuity, however valuable and beneficial, and however difficult of relin- quishment, cannot as a matter of law be continued by the Commission unless the original granting of the privilege rested on some legal obligation, which under the law affords ground on which the Commission could as an original proposition require that it be granted, or if discontinued order it restored. Douglas & Co. V. C. R. L & P. Ry. Co., 21 I. C. C. 97, 102. (k) Complainant, a corporation en- gaged in buying, grading and selling hay in New York City and vicinity, attacked the charge of $2 per car imposed on all hay stopped at Townley, N. J., for in- spection, grading and reconsignment, where it had an extensive warehouse. The stopping of cars at Townley was a transit privilege of great value to the complainant, in that it was enabled to grade and assort hay so that in the out- going shipments to its customers there FACILITIES AND PRIVILEGES, §15 (1)— (o) 399 were only about two cars rejected in the hundred, whereas the percentage of re- jections was much higher when hay went through to destination without having been carefully assorted. The charge im- posed was that exacted at other points, except that for a few months a com- petitive plant at Sayre, Pa., could hold a car for twenty-four hours and divert without any charge being made, if the diversion was accomplished within the twenty-four hours, but this privilege was also extended to Towiiley after a few months. HELD, that on the record tne reconsignment charge at Townley can- not be held unreasonable, but that rep- aration should be awarded for cars re- consigned by complainant within twenty- four hours after arrival during the period for which the twenty-four-hour reconsign- ment privilege was extended to Sayre and not at Townley. American Hay Co. V. L. V. R. R. Co., 21 L C. C. 166. (1) Transit privileges are susceptible of defense only upon the theory that the inbound and outbound movements are parts of a single continuous transaction. In Re Reduced Rates on Returned Ship- ments, 19 I. C. C. 409, 417. (m) The mliling-iu-transit rates on lumber of the Southern Ry. at Bristol and Johnson City, Tenn., competitive points, were lower than at Newport, Tenn., a non-competitive point. When complainant's business at Newport was inaugurated in 1897 the charge for the stop-over privilege on lumber at . New- port was $5 per car. This was gradually raised until on Jan.' 1, 1905, from certain points it was a minimum of $15 per car with a limit on reshipment of one year. In May, 1910, the privilege at both Bristol and Johnson City was made a minimum of $3 per car, with a right of reshipment in twelve months. Bristol is the terminus of the line of the Southern Ry., running northeast- ward from Chattanooga through Knox- ville, Morristown and Johnson City. Morristown is 89 miles from Bristol and Johnson City is between the two, 64 miles from Morristown and 25 miles from Bristol. At Morristown a branch diverges to the south and east, connect- ing with the main line at Asheville, 87 miles distant. On this branch 22 miles from Morristown is Newport. The mill- ing-in-transit rates on grain are the same at Bristol, Johnson City and New- port. The situation created enabled jobbers and finishers of lumber at Bris- tol and Johnson City to monopolize the trade and practically forced complainant to go out of business. HELD, it is often necessary on account of competi- tive conditions to recognize the justice of charging more for a service at one point where all the conditions except that of competition is similar, than for a like service at another place where no competition exists, but it cannot be held to be just to so fix rates or charges as to destroy the business of one con- cern and create a monopoly in favor of other concerns even though it be merely incidental to meeting competi- tive rates. Defendants are ordered to charge no more for the milling-in-transit privilege extended at Newport on lum- ber shipments than is contemporaneously imposed at Johnson City. Reparation awarded. Spiegle & Co. v. S. Ry. Co., 19 I. C. C. 522. (n) Defendant railroads expended some $106,000 in erecting on their right of way at Argenta, across the river from Little Rock, Ark., an elevator and mill- ing plant. It was leased to one Bunch, a grain dealer competing with complain- ant dealer at Little Rock, for his natural life upon a rental of $1 per year. Bunch gave to defendants promissory notes for some $37,000, which was a sum in ex- cess of the anticipated cost of the plant. Bunch as lessee agreed to pay taxes, assessments and insurance premiums and to keep the buildings and machinery in repair. By the lease Bunch agreed to receive and handle without cost and without discrimination all grain tendered to him by other shippers for elevation or storage. As a matter of practice he did not do so and it was never in good faith intended that he should do so. The defendants refused to extend similar privileges to complainant. As a result of the transaction in question Bunch was able practically to monopolize the situation at the points in question. HELD, the practices complained of were unlawful and discriminatory. Brook- Rauch Mill & Elevator Co. v. M. P. Ry. Co., 17 I. C. C. 158, 161, 163. (o) On shipments of grain products and hay from Ohio and Mississippi River crossings and beyond to south- eastern destinations, dealers at Nash- ville under the guise of "elevation al- lowances" were paid by defendants al- lowances where the grain was unloaded or sacked at their stores or warehouses, irrespective of whether there was any 400 FACILITIES AND PRIVILEGES, §15 (p)— (u) elevation involved, or whether the sack- ing was done by hand or by machinery, when the shipments moved out of Nashville to southeastern points. These allowances were not made to dealers located at Atlanta and other Georgia points. HELD, following Nebraska-Iowa Grain Co. v. U. R. R. R. Co., 15 I. C. C. 90, such allowances were unduly dis- criminatory. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 592. Order of Commission temporarily enjoined by Commerce Court, Nashville Grain, etc., V. I. C. C, 191 Fed. 37, 40. (p) Whenever elevation in the tran- portation sense of the term is afforded by railroads, it must be without any commercial advantages to the shipper, either in the way of mixing, grading, cleaning, clipping, or of storage be- yond the period of ten days. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 151. (q) On imported brewers' rice in sacks, complainant was assessed a stor- age charge after the expiration of 48 hours' free time of Ic per 100 lbs, for the first 10 days and for every additionil 10 days or fraction thereof, %c at defend- ants' wharf in New Orleans. A part of the rice was loaded into cars and switched to a warehouse about 3,000 feet away at the lower end of the dock, and there unloaded and held to await shipping orders. It was handled by hand labor with the use of trucks and was stored in a fireproof, brick ware- house with cement floor- and concrete roof. Another part of the rice was carried a distance of about 300 feet and similarly disposed of. When the rice was shipped out it was handled by hand, put upon trucks, loaded into cars, piled and checked. The storage charge cov- ered all this service. Complainant was permitted to ship out the rice at his convenience and received the low im- port proportional rates. The charges exacted were not in excess of those at other landing places. HELD, the storage charges imposed were not un- reasonable. Gough & Co. V. I. C. R. R. Co., 15 L C. C. 280, 282. (r) Complainant demanded a stop- page-in-transit privilege at Indianapolis on structural iron and steel originating at Buffalo, N. Y., Pittsburg and Johns- town, Pa., en route to points west of In- dianapolis, the purpose being to permit punching and riveting at Indianapolis, with an additional charge of $3 per car therefor. Under the privilege in ques- tion the material shipped in is sawed to lengths, riveted, punched and put into more compact form, but the identical material is shipped out. Chicago and St. Louis, the principal competitors of Indianapolis, were accorded this privi- lege. The rates to St. Louis and Chicago from the Pittsburg-Buffalo district were 221/^0 and 18c respectively, while the rate to these points via Indianapolis were 30i/^c and 281/^c, respectively. The rate via In- dianapolis on steel from Pittsburg to Missouri River points was 7i/^c in excess of the rate via Chicago. The rates via Chicago to St. Paul and Minneapolis and points in Minnesota and Wisconsin were 30i^c. Via St. Louis the rate from Pitts- burg to St. Paul was 36c, via Indianap- olis 41c. Des Moines was accorded the privilege in question on shipments from the Pittsburg-Buffalo district to Missouri River points and secured the through rate of 45c to Chicago and St. Louis. HELD, defendants having granted since the hearing the privilege in question to Indianapolis at an additional charge of li/^c per 100 lbs., the complaint should be dismissed without prejudice. Indian- apolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 1. C. C. 370, 375. (s) The storage of grain beyond the elevation period of 10 days and the mix- ing, weighing and inspection of the same, are commercial services and are in no sense a part of elevation, as defined in the Act. In the Matter of Allowances to Elevators by the U. P. R. R. Co., 14 I. C. C. 315, 316. (t) Elevators are essential to the proper handling of grain. Traffic Bureau of St. Louis V. M. P. Ry. Co., 14 I. C. C. 317, 318. (u) Defendants allowed live-stock men in territory west of the Missouri River to bring in cattle from the ranges in the southwest, fatten them, and ship them on to the market under a feeding-in-transit privilege, by which they secured the through rate from the range to the mar- ket, plus the additional charge for the privilege, and plus the local rate from the feeding point for the additional weight which the cattle took on in the process of fattening. They denied this privilege to complainant stockmen in Iowa territory. Under this condition complainants brought in very few cattle from the ranges, and confined themselves FACILITIES AND PRIVILEGES, §15 (v)— §16 (e) 401 to fattening feeders purchased at points on the Missouri River. The evidence in- dicated that if extended the privilege they would bring, in cattle from the ranges for fattening purposes. HELD, the denial of the privilege constituted an unjust pref- erence. Corn Belt Meat Producers' Ass'n v. C. B. & Q. Ry. Co., 14 I. C. C. 376, 378. (v) A tariff providing a milling-in- transit privilege stated that the same would be extended only by special ar- rangement. HELD, such tariff was open to criticism, since the transit privilege should be open to all shippers similarly situated upon like terms, and those terms should be so clearly and definitely stated that knowledge thereof might be acquired from examination of the carrier's tariff. Quimby v. Maine Central R. R. Co., 13 I. C. C. 246, 249. §16. Wharfage. See Courts, §10 (d); Export Rates and Facilities, III (b); Facilities and Privileges, §16, §21 (w) ; Repa- ration, §21 (j); Special Contract, §2 (z); Terminal Facilities, §1 (a), (g), (li); Water Carriers, §3 (e). (a) One Young obtained the lease of a wharf at Galveston from the S. P. Ter- minal Co., which company was controlled through stock ownership by the Southern Pacific Railroad and Steamship Systems. The cake and meal purchased by Young were bought by him in various states, but chiefly in Texas and shipped to him on bills of lading and waybills, showing the point of origin in those states and the destination at Galveston. The purchases were made for export. His sales to for- eign countries were sometimes for im- mediate and sometimes for future de- livery, irrespective of whether he had the product on hand at Galveston. At times therefore orders must be filled on cake to be purchased in the interior or shipped in transit to him. When the cake reached Galveston it was ground into meal and sacked by Young, and new shippers' bills of lading were made out to his order for foreign parts. HELD, the manufacture or concentration on the wharves of the terminal company were but incidents in the shipment of the product in export trade, and the regula- tions of the terminal company in the handling of its wharves was within the power of the Interstate Commerce Com- mission. S. P. Terminal Co. v. I. C. C, 219 U. S. 498, 526, 31 Sup. Ct. Rep. 279, 55 L. ed. 310, sustaining 14 L C. C. 250. (b) Where a railroad has a wharf at which its tariffs offer delivery and at which part of the shipping public is served, but to which it does not give all access, it must make delivery at the same rate at some other wharf. Mobile Cham- ber of Commerce v. M. & O. R. R. Co., 23 L C. C. 417, 419. (c) Where carriers publish ship-side rates on export trafllc to certain wharves owned by them, they make such wharves public terminals, and the necessary im- plication arising from the publication of such rates is that access must be given to such wharves by whatever ship the shipper chooses to have his freight car- ried from the wharf by, so long as such access may be safely and properly given. A railroad may not have a preferred line of steamships to the exclusion of other ships. It may prefer one line and have more intimate relationship with such line than with others, but its duty as a com- mon carrier by rail cannot be neglected because of such arrangement. It may set aside one or more docks for the use of such allied lines so long as such practice does not conflict with its duty to give de- livery at its docks to whomsoever may apply for the freight properly deliverable at that point. If it chooses to give up its entire dock facilities to some particular line it may do so, but it must make de- livery upon equal terms to other ships, at that port, for it has undertaken to deliver the freight it transports at the ship's side. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 1. C. C. 417, 423. (d) A railroad line has the right to reserve for certain boat lines certain of its water terminals, provided such reser- vations do not effect discrimination against traffic destined to such waterside terminals and to be carried therefrom^by other boat lines. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 427. (e) The Southern Railway and the Mobile & Ohio Railroad own docks at Mobile to which they make ship-side de- livery on export traffic. The export rate includes not only transportation to Mo- bile but switching to the wharves, use of the docks and the unloading of the cars. No separate charges are published for these terminal services, they being in- cluded in the export rate. Each of these carriers makes ship-side delivery at the docks of the other without additional charge. Neither will make delivery at 402 FACILITIES AND PRIVILEGES, §16 (f)— §17 (i) any other wharf without a charge for the terminal services. Neither carrier will issue through bills of lading except for certain preferred steamship lines. The result of this is to limit the export traffic of Mobile to the ships favored by defend- ants. HELD, that the defendant carriers must not discriminate in extending de- livery at ship-side rates at the port of Mo- bile on traffic moving over their wharves when destined to one water line or an- other. Where a railroad has a wharf at which its tariffs offer delivery and at which part of the shipping public is served, but to which it does not give all access, it must make delivery at the same rate at some other wharf. "The Mobile docks of defendants are public terminals and if the carriers desire to extend their use to a favored few equal facilities for the others must be provided elsewhere. The defendants must also cease to dis- criminate in the issuance of through bills of lading on export traffic. The same service they give to the shipper in the Interior who uses one line of ships from the port should be given to another ship- per who wishes to use a different line of ships, provided both lines of ships submit to the same reasonable conditions im- posed by the rail carrier. Mobile Cham- ber of Commerce v. M. & O. R. R. Co., 23 L C. C. 417, 427. (f) If a shipper is so situated that he cannot conveniently remove goods from a dock within a reasonable time, and therefore requires dock insurance, there is no hardship in compelling him to pay for such protection, according to the length of time for which it is needed. Wyman, Partridge & Co. v. B. & M. R. R. Co., 15 I. C. C. 577, 579. 111. PUBLICATION AND TARIFFS. See Tariffs, §3 (d). §17. Obligation to Publish. See Tariffs, §4 (L), §9 (d). (a) Transit is a privilege that may be accorded by carriers to shippers only when properly provided for in their tariffs. Liberty Mills v. L. & N. R. R. Co., 23 L C. C. 182, 185. (b) Facilities or privileges granted or allowed in connection with rates should be stated in tariffs. In Re Mileage, Excursion and Commutation Tickets, 23 L C. C. 95. (c) Transit privileges and charges thereunder on interstate or export ship- ments must be clearly and definitely shown in tariffs published and filed in conformity with the requirements of sec- tion 6 of the Act. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 447, 448. (d) There must be proper tariff pro- visions connecting the inbound with the outbound movements, thus fixing the through charge from the producing point. St. Paul Board of Trade v. M. St. P. & S. S. M. Ry. Co., 19 I. C. C. 285, 288. (e) Under section 6 of the Act re- quiring the filing of tariffs with the Com- mission showing all charges and facilities granted, it is not enough to state the amount of the charge unless the services and privileges covered by it are also stated. Whenever any service is ren- dered beyond the ordinary receiving, transporting and delivering of freight, the precise character of that service should appear in the printed schedule, and this applies to charges made for loading and unloading carload freight. Schultz-Han- sen Company v. S. P. R. R. Co., 18 L C. C. 234, 237. (f) The holding, storing, unloading and reloading of Pacific coast shipments of shingles at Menasha, Wis., subject to rebilling and reconsignment under the proportional rate from Minnesota Trans- fer to Chicago, is a privilege and service that requires publication in a tariff in order to be lawful. Folmer & Co. v. G. N. Ry. Co., 15 I. C. C. 33, 36. (g) The privilege embodied in a sep- arate storage and reconsignment tariff of one carrier cannot be availed of un- der a joint tariff to which that carrier is a party, unless the tariff by express ref- erence to the former so provides. Wash- ington Broom & Woodenware Co. v. C. R. L & P. Ry. Co., 15 L C. C. 218, 219. (h) A shipper cannot be deprived through a carrier's negligence of any lawful privilege offered by another car- rier, but such privilege must itself be not only one which the carrier may lawfully allow, but it must also be duly estab- lished and filed with the Commission. Kile & Morgan Co. v. Deepwater Ry. Co., 15 I. C. C. 235, 238. (i) Reparation will not be awarded on the basis of a reconsignment priv- ilege customarily extended by the car- rier, but not duly published in its tariff. Sunderland Bros. Co. v. B. & O. S. W. R. R. Co., Unrep. Op. 267. FACILITIES AND PRIVILEGES, §17 (j)— §18 (oc) 403 (j) In absence of tariff authority privilege of milling in transit cannot be granted. Neosho Milling Co. v. K, C. S. Ry. Co., Unrep. Op. 433. (k) Through a defect in its tariff defendant failed to properly provide for a concentration privilege in connection with shipments of cotton. Subsequently corrected. Reparation awarded. Rennert- Millette Co. v. G. H. & S. A. Ry. Co., Unrep. Op. 525. §18. Reshipping Under Through Rate. See Reparation, §2 (f ) ; Tariffs, §14 (e) ; Through Routes and Joint Rates, §20. (a) As provided in the tariff, charges were assessed on grain products at rates in effect when shipment moved from milling point and not at rates in effect when grain moved from point of origin. Damages denied. Liberty Mills v. L. & N. R. R. Co., 23 L C. C. 182. (aa) If inbound and outbound move- ments are separate and distinct it is improper to apply any rates other than the regularly established local rates. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 446. (b) Complainants claimed that defend- ants through the adjustment of rates, rules and practices granted to dealers at Nashville, Tenn., undue preferences and advantage in the handling of grain, grain products and hay moving from the Ohio and Mississippi River cross- ings and from points north and west thereof through Nashville to southeast- ern destinations. The particular prac- tice attacked was that of rebilling or reshipping which was permitted on grain, grain products and hay at Nashville, but which was not accorded at any other point in the southeastern territory. Under this privilege grain moving through Nashville could be unloaded and held not longer than six months and then reshipped at the through rate from origin to destination instead of at the sum of the rates into and out of Nashville. HELD, considering particularly the traffic involved, viz., the transportation of grain, grain prod- ucts and hay from the grain-growing region lying to the north and west, by taking out the privilege at Nashville, benefits would be derived by all parties and interests concerned, by a due ob- servance of the statute, which would in and of itself justify the action, and the results on the business at Nashville would not be as dire and chaotic as represented by the defendants. Duncan & Co. V. N. C. & St. L. Ry., 21 I. C. C. 186. (bb) Reshipment is the right of a shipper to reship goods received by him, without removal from the car, upon pay- ment of the freight charges to that point, the goods going forward under a new transportation contract. It is an incident to the transportation facilities offered. Any consignee has the right to reship. Detroit Traffic Ass'n v. L. S; & M. S. Ry. Co., 21 I. C. C. 257, 258. (c) Complainant shipped crude cot- tonseed oil into Savannah, Ga., on the ocal rates from the various points of origin, and after refining at that place it was reshipped on the balance of the through rate from points of origin to iltimate destinations, but between the times of inbound and outbound move- ments the rates had been advanced 2c per 100 lbs., and under the provisions of the tariffs as interpreted by defend- ants they applied the higher through rate in effect at the time of reshipment. The refining-in-transit rules provided that the through rates to be applied should be those in effect at the time of reship- ment. HELD, that this provision in the tariff was clearly contrary to law and that the rate applicable to all through ship- ments is the rate in effect at the tim.e of the initial movement. Southern Cot- ton Oil Co. v. A. C. L. R. R. Co., 19 [. C. C. 434, 435, 436. (cc) Complainant shipped 125 bales of cotton from Lawton, Okla., to Chick- asha, Okla., for concentration, charges being collected at the local rate of $1.50 per bale. Defendant's tariffs pro- vided that on reshipment to final des- tination the through rate from the point of origin would be protected. The consignment was destroyed by fire while standing on the platform of the compress at Chickasha. Complainant sought to recover the charges paid for the movement from Lawton to Chick- asha. HELD, transit privileges are allowed upon the theory that the in- bound shipment may be stopped and the identical freight, or its product, or its exact equivalent of the same com- modity moving into the transit point under the same privilege, may be shipped to ultimate destination under the through rate from point of origin. 404 FACILITIES AND PRIVILEGES, §18 (d)— (g) If for any reason reshipment becomes Impossible the carrier is under no obli- gation to refund the charges collected for the movement to the transit point. Complaint dismissed. Anderson, Clay- ton & Co. V. St. L. & S. F. R. R. Co., 17 L C. C. 12. (d) Complainant lumber dealers at Cairo attacked the reshipping privileges allowed by defendants to lumber dealers at Memphis and denied to complainants on shipments of lumber from Mississippi points to points north and east of the Ohio and Mississippi rivers. Under such privilege the Memphis dealer was per- mitted to ship lumber from the Missis- sippi mills to Memphis, and unload the same, assort and dry it, covering a pe- riod of 90 days, and then reship same to the north and east at the through rate. Memphis dealers i ecured their lumber from mills located in Mississippi com- paratively short distances from Memphis. The millmen supplying the same had small capital and were financed by the Memphis dealers. The timber was cleared by the millmen without regard to the kinds of lumber cut. The mill- men had neither the means nor the prac- tical facilities for assorting and drying the lumber, and it was therefore neces- sary that these processes be carried on at Memphis. The greater portion of the lumber shipped into Memphis was green. Nine railroads led into Memphis, result- ing in keen competition. The reconsign- ment privilege at Memphis was estab- lished to enable Memphis to compete with Cairo and St. Louis for Arkansas lumber. At Cairo lumber was received from millmen located much farther from that city than the millmen supplying Memphis were distant from Memphis. The greater portion of lumber coming to Cairo was already graded and dried. Competition between the five railroads running into Cairo was less keen than at Memphis. HELD, the difference in conditions at Memphis justified the de- fendants in granting the reshipping priv- ilege at that point and denying the same to Cairo. Sondheimer Co. v. L C. R. R. Co., 17 I. C. C. 60, 67, 68. (dd) Whenever by any transit arrange- ment through rates are applied such rates must be as of the date of first movement from point of origin under such through rates. In Re Milling-in- Transit Rates, 17 I. C. C. 113. (e) Complainant shipped a carload of cement containing 60,000 lbs. from Acme, Tex., to East St. Louis and there placed the same in its warehouse, paying the 18c rate in effect between said points. Com- plainant then removed one-half of the carload, leaving 30,000 lbs., and rebilled the car to Braidwood, 111., and was as- sessed the local rate to Braidwood of 9c. The rate from Acme to Braidwood via East St. Louis, minimum 30,000 lbs., was 23c. The tariff at the time of ship- ment provided for a reconsignment at East St. Louis. It had beten the custom of defendant to apply in cases like the one in question the balance of the through rate of 5c for the haul from St. Louis to Braidwood, and at the time of the hearing defendant had in effect a proportional rate from East St. Louis upon shipments of this character. HELD, assuming there ought to have been In effect such a reconsignment privilege, still complainant was not entitled to rep- aration, since such privilege could not be held to permit the removal of a por- tion of a carload in transit and the send- ing forward of the balance at the through rate. Acme Cement Plaster Co. v. C. & A. R. R. Co., 17 L C. C. 220, 222. (f) A condition that the ultimate des- tination must be shown on the original bill of lading, to obtain the through rate, is unreasonable. Roper Lumber-Cedar Co. V. C. & N. W. Ry. Co., 16 I. C. C. 382. (g) Defendant's tariff provided that shipments of lumber, shingles, posts and poles might be dressed, sawed or con- centrated in transit, and carried at through rates from point of shipment to the concentration point, thence to point of ultimate destination. Prior to Oct. 2, 1907, the tariff provided that a shipper could avail himself of this transit privilege only by showing in the original shipping bill the ultimate destination of the shipment. Enforcement of this pro- vision was impracticable, the shipper not usually knowing the ultimate destina- tion of a shipment until after it reached the concentration point, and therefore this provision in the tariff was generally ignored. On shipments by complainant between 1906 and 1907, however, the con- dition was strictly enforced, resulting in a denial of the transit privilege to com- plainant. Oct. 2, 1907, however, it was cancelled. HELD, the condition was un- reasonable. Reparation awarded on the basis of the through rate on the 190'o- 1907 shipments. Roper Lumber-Cedar Co. V. C. & N. W. Ry. Co., 16 L C. C. 382. FACILITIES AND PRIVILEGES, §18 (h)— §19 (e) 405 (h) If there is offered to a shipper under the tariff a right of stopping in transit, reconsignment, storage, or return of freight, he is entitled to the use of such privilege, even though it may later be canceled out of the tariff before the time allowed for the exercise of such right has expired. Interstate Remedy Co. V. American Express Co., 16 I. C. C. 436, 439. §19. Retroactive Application. See Infra, §20 (e); Long and Short Hauls, §5 (J); Reconsignment, §6. (a) In April and May, 1909, there were shipped from McKenzie, Tenn., to complainants at Evansville, Ind., eight carloads of logs, the rate charged being 12c per 100 lbs. Between February and May, 1909, there were shipped from Hum- boldt, Tenn., to complainants twelve cars under a rate of lie per 100 lbs. During the same period defendant main- tained a rate of 7c from certain stations immediately north and south of McKen- zie and Humboldt, applicable on logs shipped into Evansville, there manufac- tured into lumber and shipped out in manufactured form. In December, 1909, the 7c rate was made applicable from McKenzie and in February, 1910, from Humboldt. In November, 1910, com- plainants filed claim against defendant to have the subsequently es.tablished milling-in-transit rate applied to the ship- ments. The outbound shipments upon which this claim was based were made about eighteen months after receipt of the inbound shipments at Evansville. It did not appear affirmatively whether the inbound shipments were manufactured into lumber at Evansville and the prod- uct reshipped, or whether they were dis- posed of locally. HELD, there was no obligation on the carrier to make the milling-in-transit privilege retroactive, and the period which intervened between the inbound and outbound shipments was unreasonably long. Young & Cutsinger V. L. & N. R. R. Co., 22 I. C. C. 1, 3. (b) Defendant charged 7.7c per 100 lbs. on logs from McLean's Spur, Ky , to Louisville, Ky. Complainant claimed to have an understanding that a refund would be made on the basis of 5c upon proof that the manufactured product had been reshipped via defendant's line. The carrier failed to establish the rate con- tended for until after the inbound ship- ment had moved. The rate was alleged to have been unreasonable in so far as it exceeded 5c. HELD, the Commission would not order the establishment in the first instance of a transit privilege, or permit the retroactive application of one voluntarily established by a carrier, except for the purpose of removing a discrimination. Complaint dismissed. Wood-Mosaic Flooring & Lumber Co. v. L. & N. R. R. Co., 22 L C. C. 458. (c) Reparation was awarded on the basis of a transit privilege made ap- plicable after the date of movement; not viewed as the retroactive application of a transit privilege, the privilege being held applicable to a station not specific- ally mentioned in the tariff. Henry v. E. Ry. Co., 20 1. C. C. 171. (d) Complainant shipped five double- deck carloads of sheep, Vaughn, N. M., to Kansas City, Mo., fed in transit at Pampa, Tex., under a rate of 25c to Pampa and 36i/^c beyond. Defendants admitted the rate to be unreasonable to (he extent that it exceeded a rate of 41c plus a feeding-in-transit charge of 7c, but refused to apply such rate, on the ground that the feeding-in-transit charge was not applicable to a shipment from Vaughn until a date subsequent to that of the shipment. The tariff under which the shipment moved was lawfully on file prior to May 1, 1907. At the time shipment moved there was in force to Kansas City from points south of Vaughn a joint rate of 40 ^c plus a feeding-in- transit charge of 7c. A large majority of these points are farther distant from Kansas City than Vaughn. HELD, that the tariff, being lawfully on file prior to May 1, 1907, was not strictly subject to rules of interpretation subsequently promulgated, and that under the cir- cumstances this case did not involve the retroactive application of a transit priv- ilege; that the ra^e was unreasonable to the extent that it exceeded a rate of 48c per 100 lbs. Reparation awarded. Henry v. Eastern Ry. Co.. 20 I. C. C. 171. (e) Complainant shipped from Eddy, Ala., to Columbus, O., a carload of yel- low pine lumber milled in transit at Meridian, Miss., under a combination rate of 41c per 100 lbs. Reparation was asked to the basis of a joint rate of 28c with a transit privilege. Prior to the shipment the 28c rate had been effect- ive, but a month before, due to a mis- understanding between the carriers, this transit privilege was withdrawn, but was restored about six weeks subse- quent to the shipment. With this ex- ception the rate of 28c with the transit 406 FACILITIES AND PRIVILEGES, §19 (f)— §20 (c) privilege had been continuously in force for about f/e years. HELD, a transH privilege which was effective for eigh- teen months, and through misunder- sJtanding between the carriers was with- drawn for a period of two and one-half months, and then restored and continued in effect, cannot be regarded in the same light as a newly established transit privilege, and does not come within th€ Commission's rule against awarding rep- aration which amounts to the retroactive application of a transit privilege. Rep aration awarded. Crescent Lumber Co. V. M. & O. R. R. Co.. 20 I. C. C. 230. (f) Complainant shipped between April 18, 1904, and May 9, 190G, carloads of lumber from Cady Switch and Le Compt, La., to Omaha, Neb., and various other points, dressed in transit at Alex- andria, La., under a local rate of 5c per 100 lbs, to Alexandria and a through rate of 23c per 100 lbs. from Alexandria to destination. After the lumber was dressed at Alexandria and forwarded the local rate was usually returned, but not on these particular shipments. The tariff carried no milling-in-transit privileges until May 9, 1906. Carriers agreed to refund the 5c if permission to do so was obtained. HELD, the Commission will not sanction the application retroactively of a milling-in-transit privilege, even though it had long been the custom of the carrier to permit it without tariff authority, and that though the defend- ants express willingness to make refund on the ground of discrimination, the fact that the carriers agreed to pay the amount does not form any basis upon which the Commission could make its findings, or apply retroactively the tran- sit privileges in question. Cady Lumber Co. V. M. P. Ry. Co., 19 L C. C. 12. (g) Transit privileges cannot be given a retroactive effect. National Lumber Co. v. S. P. L. A. & S. L. R. R. Co., 15 I. C. C. 434. (h) Prior to the enactment of the Hepburn Act defendant accorded a yard- ing-in-transit privilege on lumber shipped from San Pedro to Los Angeles and re- shipped to other destinations, by which on shipments so retained at Los Angeles through rates were granted. Such priv- ilege was not published, and upon the enactment of the Hepburn Act was with- drawn. Later it was restored and legally published. In the interval complainant made the shipments in question and was denied such privilege and reship- ment under the through rate. HELD, the practice before the enactment of the Hepburn Act amounted to an illegal rebate and could not be made the basis of an award of damages. Reparation denied. National Lumber Co. v. S. P. L. A. & S. L. R. R. Co., 15 I. C. C. 434, 435. (i) Reconsignment privileges cannot be given retroactive effect. Miller & Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 60. (j) Reconsignment privileges will not be given retroactive effect unless that is necessary to correct an unjust discrim- ination. Menefee Bros. v. R. & W. R. R. . Co., Unrep. Op. 359. §20. Substitution of Tonnage. (a) Defendants maintained propor- tional or milling-in-transit tariff rates under which large volumes of grain moved from originating points in the west and middle west to Dyersburg, Tenn. The inbound grain moved to Dy- ersburg, where after elevation or milling it was reshipped to points in the Mis- sissippi valley at the local rates from Dyersburg, having paid a proportional rate to Dyersburg. Upon surrender of the inbound expense bills the charges were corrected to equal the through rates from points of origin to points of des- tination. Complainant maintained a mill at Dyersburg, which became bankrupt and was leased to the president of com- plainant as- an individual, and after the termination of the bankruptcy complain- ant again took possession under a cor- porate name slightly different from its original one. At the time of the bank- ruptcy there was in the mill only a nominal amount of tonnage on which old expense bills could have been ap- plied, and there had accumulated in the hands of complainants a vast number of old expense bills which it desired to use subsequent to the bankruptcy. HELD, there is no justification for any such use for the old expense bills as is contended for by complainant. Klyce Co. v. I. C. R. R. Co., 19 I. C. C. 567. (b) The fact that general laxity and irregularity formerly prevailed in tne matter of transit privileges and cancel- lation of inbound expense bills affords no warrant for now approving or con- tinuing such practice. Klyce Co. v. I. C R. R. Co., 19 L C. C. 567, 570. (c) The change of ownership of a milling-in-transit plant would not neces- FACILITIES AND PRIVILEGES, §20 (d)— (h) 407 sarily deprive such product as was actu- ally in transit of the privilege of re- shipment under the through rate. Klyce Co. V. I. C. R. R. Co., 19 L C. C. 567, 571. (d) Transit rules and regulations and railroad billings which do not distin- guish between such different commod- ities as hard wheat and soft wheat, or as yellow corn and white corn, or as lumber and maple lumber, or as rock salt and fine salt, leave wide open the oppor- tunity for practices which defeat rates and discriminate against honest ship- pers, in that substitution at transit priv- ilege points is easily effected. In Re Substitution of Tonnage at Transit Points, 18 L C. C. 280, 287. (e) Defendant had no agent at Po- mona, Tenn., located on the switch of defendant's line two miles from Hum- boldt, Tenn., where traffic originating at Pomona was billed. The same carload rates to St. Louis applied from both places. A car of strawberries partly filled was transported to Humboldt and there loaded with additional crates, thence it was moved to St. Louis. The freight rate of 23c (any quantity) from Pomona to Humboldt and 39c (carload) from Humboldt to St. Louis was collected. Complainant demanded reparation to the basis of the 23c rate collected, less a $5 charge for concentration. Defendant al- lowed such a concentration privilege on other parts of its lines, the rate applying in such case being the rate from the con- centration point. HELD, since the 39c carload rate applied from both Pomona and Humboldt, and complainant under the facts was entitled to the concentra- tion privilege, reparation should be awarded as soon as defendant published the same in its tariff, and this despite the fact that the rates charged were the legal rates and that concentration or transit privileges cannot be given retro- active effect for the purpose of granting reparation. A. S. Block & Co. v. L. & N. R. R. Co., 18 I. C. C. 372, 373. (f) Where a shipment of uncom- pressed cotton was destroyed at the transit point, the Commission will not order full reparation on the inbound charges or an extension of time to sub- stitute another shipment for the out- bound movement. Henderson & Barkdull V. St. L. L M. & S. Ry. Co., 18 I. C. C. 514. (g) Complainant b^oug^t phosphate rock and acid phosphate from various points to Prairie Switch, Ind., and there mingled it with humus and then shipped the same out to various destinations to be used as fertilizer. Of the outgoing tonnage more than half consisted of the humus originated at Prairie. HELD, in view of the material added at Prairie Switch complainant was not entitled to a transit privilege at that point. Bash Fertilizer Co. v. Wabash R. R. Co., 18 I. C. C. 522, 523. (h) Under the rebilling or reshipping privilege accorded at Nashville on ship- ments of grain, grain products and hay from Ohio and Mississippi River cross- ings to points in the southeast, the through rates from the crossings to ulti- mate destinations were applied. Ship- ments moved into Nashville, where they were unloaded, elevated or sacked and at any time within six months might be •eshipped on to points in the southeast, vvith the benefit of the through rate from Doint of origin to destination. When a shipper desired to reship at Nashville ae took the expense bill covering the nbound movement to the agent of the jarrier, and the outbound shipments were charged against that expense bill. He thereupon secured a bill of lading show- ing the original shipping point. Under this practice the Nashville dealer might, for example, buy two cars of grain, one at Memphis and one at Louisville. He paid up to Nashville on the Memphis car lie, and on the Louisville car 10c, which were the local rates. Should the Memphis car burn after being put in the warehouse, or be sold at Nashville, he would ,>iifrve two expense bills and one car of grain. Should he sell a car at At- lanta he might use the Memphis bill, showing a payment of lie, paying the balance of the through rate from Mem- phis to Atlanta of 9c. In this way he might secure on a car from Louisville to Atlanta a total rate of 19c, whereas the through rate from Louisville to Atlanta was 24c, and the combmation of locals 27c. These reshipping and re- billing privileges were accorded to Nashville in order to meet water com- petition via the Cumberland River. Georgia and other southeastern ship- pers were denied such privileges. HELD, that while the conditions at Nashville tended to justify the practice in question, it must nevertheless be pro- hibited in view of the possibility of discrimination between shippers in rates through the manipulation of ex- 408 FACILITIES AND PRIVILEGES, §20 (i)— §21 (c) pense bills. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 598, 599. (i) Prohibitions of law are not invari- ably directed against illegal acts because they might be numerous; a statute may be considered equally necessary to pre- vent sporadic or isolated acts in con- travention of public policy; and a prac- tice or privilege which permits the move- ment of a single shipment at less than the rate lawfully applicable to such move- ment is one which the Commission has, under the law, no alternative but to con- demn. Duncan & Co. v, N. C. & St. L. Ry. Co., 16 I. C. C. 599. (j) A tariff providing that under a milling-in-transit privilege on corn, other grains, and their products, may be forwarded from the milling point, is open to criticism as departing from the underlying idea of milling in transit and forwarding the products of the grain brought to and stopped at the milling point. Quimby v. Maine Cen- tral R. R. Co., 13 I. C. C. 246, 249. IV. DISCRIMINATION. §21. In General. See Discrimination, §6 (d). (a) Defendant railroad made ar- rangements with warehousemen having their warehouses and elevators located along its tracks to use the same as fa- cilities in storing grain brought in by the shippers and in elevating and unload- ing the grain into defendant's cars. While the warehousemen were strictly engaged in a private business, they did in fact serve all shippers and their plants were open practically to the gen- eral public. Defendant promulgated a rule requiring that all orders for empty cars should be made through these ware- housemen, and that it would not regard orders made to it directly by the ship- pers. As a result the warehousemen gained control of the empty cars and in times of shortage supplied their own needs from cars ordered through them by shippers. HELD, on mandamus, the ware- housemen were the agents of the rail- road, and the latter under the Act for- bidding unjust discrimination must either compel the former to desist from such practices or else cancel the rule in question. U. S. v. Oregon R. R. & Navigation Co., 159 Fed. 975, 984. (b) Complainants were owners of grain elevators at Templeton, Ind., and neighboring points on the line of the C. C. C. & St. L. Ry. Under tariffs of the C. & E. I. and C. I. & S. R. Rs. grain originating at competing points on these lines could be unloaded into elevators at Chicago and there treated, and if with- in twelve months shipped out to east- ern destinations the inbound rate would be reduced to 4i^c per 100 lbs., whereas the rates of the C C. C & St. L. Ry. were 6c and 7c. The C. C. C. & St. L. Ry. as a party to the tariffs referred to, partici- pated in rates out of Chicago to eastern destinations, but tariffs expressly pro- vided that these proportional rates should not apply on grain moving into Chicago from points on its own line. Chicago was their nearest market and nearest point at which complainants could secure proper and efficient service for treatment of their grain. No joint rates were in force from complainants' elevators to New York via Chicago. In justification of its refusal to grant com- plainants proportional shipping rates and transit privileges the C. <^. C & St. L. Ry. contended that it had a right to hold complainants' grain to its own line in order to get the long haul to the mar- kets of the east. HELD, that it is the right of a shipper to reach at reasonable transportation rates all markets within the sphere of his commercial activity. This right cannot be denied by means of rate schedules intended to hold traffic to any particular line or with a view to com- pelling favor to one market or another. So long as the C C. C. & St. L. Ry. par- ticipates in transportation of grain to eastern points which has moved into Chicago under tariffs that provide propor- tional rates from originating points, with transit privileges at Chicago, it must accord like rates and privileges on grain from complainants' elevators. Van Natta Bros. v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 1. (bb) To deny at Omaha certain tran- sit privileges on the ground that rates do not "break" there, because a carrier sees fit to construct a joint rate beyond the end of its line to the Mississippi River, and to grant such privileges at the Mississippi River cities on the theory that the "breaking" of rates there is a "natural" advantage, is unjust discrimi- nation and should not be permitted. In Re Transportation of Wool, Hides and Pelts, 23 L C. C. 151, 170. (c) The Commission has never held that transit was to be condemned in so far as it was beneficial and could properly FACILITIES AND PRIVILEGES, §21 (cc)— (j) 409 be applied. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 171. (cc) In so far as transit lends itself to the defeating of the published rate, or to the preference of one individual or locality over another, the Commission condemns it. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 171. (d) It is unlawful for a carrier to add to its reasonable rate a penalty by way of a concentration charge, to be forfeited if the outbound movement is not over the same line as the in- bound movement. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 447. (e) The Commission does not con- demn a reasonable or non-discriminatory charge for additional service performed by a carrier in connection with a tran- sit privilege. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C 438, 447. (ee) Railroad competition may justify the granting of a milling-in-transit priv- ilege at the Twin Cities and denying it at Janesville, Wis. Blodgett Milling Co. V. C. M. & St. P. Ry. Co., 23 I. C. C. 448. (f) Under specific rates in force, grain from some quarters pays a less charge than it should, while grain from other quarters pays more than it should. On the whole, no material hardship, results, and in view of the greater general good these incidental discriminations are not undue. Southern Illinois Millers' Ass'n V. L. & N. R. R. Co., 23 L C. C. 672, 67G. (ff) It is unjustly discriminatory to exact of Southern Illinois shippers a transit penalty while competitors at St. Louis are charged nothing. Reasonable penalty suggested for both points. South- ern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 677. (g) Milling-in-transit is a privilege which may be granted or withheld by a carrier in its discretion so long as no unlawful discrimination results there- from. Young & Cutsinger v. L. & N. R. R. Co., 22 I. C. C. 1, 3. (gg) The privilege of trying the mar- ket is of great benefit to the producer of live stock and ought to be continued under reasonable terms and conditions, but as these markets multiply it becomes more and more evident that carriers may with propriety impose a reasonable charge for the performance of the serv- ice granted in connection with transit privileges. Investigation of Alleged Un- reasonable Rates on Meats, 22 I. C. C. 160, 174. (h) Because a transit privilege is al- lowed at a particular point by one line is no reason why it should be ordered in on another line, where the circumstances of inbound and outbound shipments over the two roads are dissimilar. Paducah Cooperage Co. v. N. C. & St. L. Ry. Co., 22 1. C: C. 226, 231. (hh) Complainant, a miller of wheat and corn at Piano, Tex., complained be- cause of a denial of the transit priv- ilege of milling under through rates from St. Louis to destinations on the I. & G. N. Ry. The St. L. S. W. Ry. Co. had allowed such privileges to Fort Worth, but withdrew them, when the suit was started. Other railroads, however, con- tinued such a privilege to Fort Worth. The complaint charged a discrimina- tion in favor of the competing mills at Fort Worth, in violation of the third section of the Act. HELD, that ship- pers are not entitled as a matter of right to mill their grain in transit and forward the product under the though rates, and defendants were not guilty of undue dis- crimination. Piano Milling Co. v. St. L. S. W. Ry. Co., 22 I. C. C. 360. (i) The inability of complainant to reach a market on other lines owing to the failure of defendant to grant it a milling-in-transit privilege on traflac des- tined to such other lines is not an undue discrimination for which the defendant is liable. Piano Milling Co. v. St. L. S. W. Ry. Co., 22 I. C. C. 3o0, 362. (j) In the decisions by the Supreme Court of the United States in the Diffen- baugh case, 222 U. S. 42, and the Updike case, 222 U. S. 215, relating to the legality of the allowances paid for the elevation of grain by the Union Pacific at Council Bluffs, la., it was the inten- tion of the court to hold that whatever might be the case if a railroad saw fit to confine its payment to elevation actually required in the conduct of its business, it must, when it makes an al- lowance to one elevator under such cir- cumstances as to give that elevator pay- ment for commercial elevation, extend the same privilege to all other elevators similarly situated at that point. Defend- ant carriers ordered not to exceed ^c in the payment of elevation or transfer 410 FACILITIES AND PRIVILEGES, §21 (jj)— (p) allowances on grain at the Missouri River and to confine that payment to grain actually passing through the ele- vators in ten days. Traffic Bureau, Merchants' Exchange v. C. B, & Q. R. R. Co., 22 L C. C. 496, 505, 506. (jj) A railroad has no right under the pretext of a transfer which it does not require, to furnish a grain dealer commercial elevation, or, what amounts to the same thing, to pay through an elevation allowance for the commercial elevation of his grain, and if it does so it must accord the same privilege or make the same payment to other persons and at other points. Traffic Bureau, etc., of St. Louis V. C. B. & Q. R. R. Co., 22 I. C. C. 496. (k) As between shippers, carriers should pursue a policy of uniformity concerning the extension of privileges, and thus avoid the charge of undue dis- crimination in connection therewith. Scudder v. T. & P. Ry. Co., 21 L C. C. 60, 61, 62. (kk) The defendant permitted milling- in-transit at St. Joseph and Kansas City, Mo., of corn originating at points on the St. Joseph & Grand Island Ry., the product of which was shipped to Pacific coast terminals at the through rate from point of origin to destination, and under this arrangement millers at St. Joseph and Kansas City could buy their corn at points west thereof on the St. Joseph & Grand Island Ry., while complainants, whose mills were at Milford and Firth, Neb., on the C. B. & Q. R. R. (not a de- fendant) were restricted in Che purchase of corn to be milled by them in transit and forwarded to Pacific coast points to territory east of their mills. Defendant did not serve either of the towns where complainants were located. HELD, the adjustment of which complaint is made does not result in uhdu ; prejudice to complainants within the meaning of the Act, as defendant cannot be charged with subjecting communities to disadvantage which it does not serve. Complaint dis- missed. Johnson & Co. v. A. T. & S. F. Ry. Co., 21 I. C. C. 637. (I) The Commission does not en- deavor to establish or extend transit privileges in the absence of discrimina- tion. Anadarko Cotton Oil Co. v. A. T. & S. F. R. R. Co., 20 1. C. C. 43, 47. (II) Complainant, a lumber dealer lo- cated at Cairo, 111., was discriminated against in favor of dealers at Memphis with respect to certain privileges in re- spect of yarding, grading and sorting in transit of lumber from certain producing territory. HELD, that complainant was entitled to reparation to the extent of the unreasonable rate paid by him as evidenced by the difference between the old tariffs condemned in the first report of this case in 17 I. C. C. 60, and the new tariffs; that as complainant sold his lumber delivered, this difference in the rate was the extent of his injury. Sondheimer Co. v. I. C. R. R. Co., 20 I. C. C. 606. (m) A carrier may not so construct its rates as to compel an extra charge for a like service. Associated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 L C. C. 310, 318. (n) It is discriminatory to grant to other shippers the privilege of including advertising matter and articles in pack- ages of merchandise and to refuse the same or a similar privilege to complain- ant. Ouerbacker Coffee Co. v. So. Ry. Co., 18 I. C. C. 566, 571. (o) Where a carrier grants one ship- per over its line a lawful privilege and by a construction of its tariff rule de- nies the same concession to another shipper over its line under similar cir- cumstances and conditions the latter is subjected to undue discrimination. Ouer- backer Coffee Co. v. So. Ry. Co., 18 I. C. C. 566, 570. (p) Complainant, lumber dealers at Cairo, attacked the rates on lumber from Mississippi points via Cairo to points north and east of the Ohio and Missis- sippi rivers, as compared with rates be- tween the same points via Memphis. The rates via Cairo were for the most part constructed by adding the local rate to Cairo to the local rate from Cairo, the through rate thus obtained being reasonably low on account of competi- tion. At Memphis the local rate was charged from the point of origin to Mem- phis, and to this was added the local rate from Memphis to point of destina- tion. This combination, however, was reduced by allowing a reconsignment privilege at Memphis, under which the lumber might be unloaded and dried for a period of ninety days, after which time it was shipped out on the local rate, which was shrunk from 2c to 4c, ac- cording to destination. Since the filing of the complaint the defendants pub- FACILITIES AND PRIVILEGES, §21 (q)— (w) 411 lished a new tariff, making the Memphis through rates between the points in question about Ic lower than the com- bination of locals into and out of Mem- phis. Said new rates appeared to be satisfactory to Memphis shippers. Un- der the rates attacked Memphis be- tween typical points had lower rates than Cairo in 138 instances. Under the new tariff it had lower rates in forty- seven instances. The old rates favored Memphis in many instances more than 5c per 100 lbs. and differences in rates ranging from i/4c to more than 5c prevailed from points of production within short distances from Memphis. HELD, the rates attacked were unrea- sonable to the extent that they exceeded the new rates published since the hear- ing. The question of reparation held open for further evidence. Sondheimer Co. V. L C. R. R. Co., 17 L C. C. 6^ 70, 71. (q) Where discontinuance of a cer- tain privilege with respect of one com- modity would not benefit those shipping another commodity to whom it is denied, and where the denial to them does not benefit those to whom it is granted, the discrimination is not undue. Wholesale Fruit & Produce Ass'n v. A. T. & S F Ry. Co., 17 I. C. C. 596, 601. (r) While it might be reasonable to withhold milling-in-transit privileges from a product that is essentially different from the raw material and from the other products of the same raw material which are accorded transit rates, as, for ex- ample, a liquid product of grain, it is clearly discriminatory to single out one or more of several milled products of grain and withhold from it or them a transit privilege which is granted at that or some other competitive point to other milled products of grain of substantially similar character, value and packing, and which are transported under substan- tially the same conditions, attended by substantially equal risks, where there is competition between the millers of the grain, either in marketing their product or in securing their material for milling. Douglas & Co. V. C. R. I. & P Ry. Co. 16 I. C. C. 232, 244. (s) In 1903 complainant established a starch manufacturing plant at Cedar Rapids, la., and in 1908 had $500,000 in- vested in it and $150,000 working cap- ital. For many years a large cereal mill had been located in Cedar Rapids and enjoyed milling-in-transit privileges on grain. Before establishing its plant com- plainant consulted with defendant car- riers and was assured that it would be granted as liberal transit privileges as were allowed to other manufacturers of grain products at Cedar Rapids. In 1908 defendants withdrew from complainant the milling-in-transit privileges on grain manufactured into starch and established starch rates, resulting in increases of from 25 to 100 per cent. Milling-in- transit privileges were not withdrawn from other manufacturers located at Cedar Rapids who made products other than starch from corn. Complainant had no competitors in the manufacture of starch located at Cedar Rapids, but on account of the withdrawal of the priv- ileges complainant was at a serious dis- advantage in the purchase of corn at various points on defendants' lines. HELD, complainant was unduly discrim- inated against by the withdrawal of such privileges and defendants should adjust their rates so as to remove it. Douglas & Co. V. C. R. L & P. Ry. Co., 16 I. C. C. 232, 236-245. (t) It is discrimination to grant com- mercial elevation at one locality and deny it at another. Washer Grain Co. v. M. P. Ry. Co., 15 L C. C. 147, 158. (u) Defendant's rules limited less- than-carload shipments of petroleum to one day a week. Complainants' com- petitor constructed tank stations at points along defendant's line, from which it supplied tank wagons, distributing said product in the surrounding territory. Said competitor was thus enabled to furnish oil every day of the week, while com- plainants could supply the same only one day. To permit shipments on more than one day a week would require additional equipment. HELD, the rule attacked, resulting in unjust discrimination be- tween shippers, should be changed so as to permit the shipments on two days each week and that said days should be separated by at least two intervening days. National Petroleum Ass'n v. L. & N. R. R. Co., 15 L C. C. 473, 476. (v) Any regulation or practice that unlawfully discriminates against one shipper and affords undue preference to another shipper is a regulation or prac- tice affecting rates within the meaning of section 15 of the amended Act of Jan. 29, 1900. Rail & River Coal Co. v. B. & O. R. R. Co., 14 L C. C. 86, 89. (w) The giving of an unjust prefer- ence in wharfage privileges to an ex- 412 FACILITIES AND PRIVILEGES, §21 (x)— FOREIGN COMMERCE, §1 (b) porter of cotton seed products cannot be justified on the ground that such course has proved beneficial to cotton seed interests generally; that better prices have prevailed, and that more economic methods of doing business have resulted therefrom. Carl Eichenberg v. Southern Pacific Co., 14 I. C. C. 250, 269. (x) A railroad company by granting a privilege v^hich, although ostensibly open to the whole public, can, in the nature of things, only be taken ad- vantage of by certain shippers, creates thereby a discrimination which may or may not be undue, according to the cir- cumstances in each case. Traffic Bureau of St. Louis V. C. B. & Q. R. R. Co., 14 r. C. C. 317. (y) Defendant carriers allowed %c per 100 lbs. to dealers in grain in Mis- Bouri River cities as an elevation allow- ance. They extended no such allow- ance to dealers located in Mississippi River cities. As a result it cost the lat- ter dealers %c per 100 lbs. more to move grain from points of purchase through their elevators and beyond to points of sale than the same transporta- tion cost dealers in Missouri River cities. It appeared that the weighing of grain to determine the amount due the original seller thereof could only be practically accomplished through the process of ele- vation. Defendants were subjected at Missouri River points to competition with a carrier entering from the northwest, which they did not meet with at Missis- sippi River points. HELD, distinguish- ing In the Matter of Allowances to Ele- vators by the Union Pacific R. R. Co., 12 I. C. C. 85, that the elevator allowance constituted an undue and unlawful dis- crimination. Traffic Bu. Merchants' Ex- change v. C. B. & Q. R. R. Co., 14 I. C. C. 317, 328-331. (z) A railroad company by extending a privilege of value to one member of the shipping public, when that privilege, In the nature of things, is not desired and cannot be used by other members of the public, is thereby guilty of a dis- crimination in favor of the one who can and does use the privilege. Traffic Bu. Merchants' Exchange v. C. B. & Q. R. R. Co., 14 L C. C. 317, 331. (aa) The Commission will neither ap- prove nor permit the application of tran- sit privileges under circumstances that would impair the integrity of the through rate. Blackwell Milling & Elevator Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 483. (bb) Transit privileges withheld from complainant, which had been extended to it in common with others without tariff authority, and which later had been extended to its competitors under au- thority of a lawful tariff and which in- advertently was not made applicable from the complainant's shipping station. HELD, unjust discrimination. Stras- burg Steam Flouring Mills v. S. Ry. Co., Unrep. Op. 531. FERRIES. Prior to the amendment of June 29, 1906, to the Act it had no application to ferries except where a railroad used and operated a ferry as a part of its road. (Gummere, C. J., dissenting.) N. Y. C. & H. R. R. R. Co. V. Freeholders of Hudson, 76 N. J. L. -664, 681, 74 A. 954. FEEDING-IN-TRANSIT. See Facilities and Privileges, §15 (u). FIRE. See Facilities and PriviJeges, §18 (cc), §20 (f); Loss and Damage, §6 (11); Through Routes and Joint Rates, §20 (c) ; Substitution of Ton- nage, §2 (b); Switch Tracks and Switching, §5 (c), §8 (a), (b). FLOATAGE. See Lighterage, §3 (i). FOREIGN COMMERCE. CROSS REFERENCES. See Alasl. Div. 696, 701, li5 N. Y. Supp. 311. (k) In a suit by a carrier to recover the published interstate rate .the defend- ant cannot set up as a valid plea the unreasonableness of such rate, since original jurisdiction over the question of reasonableness in establishing inter- state rat€s is vested with the Interstate Commerce Commission. B. & O. R. R. Co. V. La Due, 128 App. Div. 594, 596, 112 N. Y. Supp. 964. (I) A United States circuit court has no jurisdiction to enjoin the putting into effect of a schedule of interstate rates without prior application to the Interstate Commerce Commission, which body is vested with exclusive jurisdiction over questions of the reasonableness of inter- state rates under the Interstate Com- merce Act as amended June 29, 190'6. A. T. & S. F. Ry. Co. v. Foster Lumber Co. (Okla., 1911), 122 P. 139. (mn) The question of the reasonable- ness of an interstate rate, lawfully p^-^h- lished, can be heard, in the first instance at least, only before the Interstate Com- merce Commission. Oregon R. & Nav. Co.v. Coolidge (Ore., 1911), 116 P. 03, 95. (o) The United States courts and the Interstate Commerce Commission have exclusive jurisdiction of actions based upon the Interstate Commerce Act, or brought to enforce a right created by tbe Act. Hardaway v. Southern Ry. Co. (S. C, 1912), 73 S. E. 1020, 1023. (p) Under the provisions of the Interstate Commerce Act no court has any power, in the first instance, to in- quire into the reasonableness of any rate that has been regularly established by a railway company and filed with the Interstate Commerce Commission and published by posting; and the question of whether or not a rate is reasonable and just is one to be determined, in the first instance, in a proper proceeding be- fore the Commission. Great Northern Ry. Co. V. Loonan Lumber Co. (S. D., 1910), 125 N. W. 644, 645. (q) Where the published interstate rate is collected and an action is brought in a state court to recover for the ex- cess exacted above a sum alleged to be a reasonable charge, the only evidence that will justify the action is a prior judgment of the Interstate Commerce Commission holding the rate complained of to be unreasonable. Robinson v. B. & O. R. R. Co., 64 W. Va. 406, 410, 63 S. E. 323. - (r) Where an interstate rate has been duly published and filed and the Inter- state Commerce Commission has made no ruling holding the same to be un- reasonable, a shipper cannot, upon the exaction of such rate, sue in a state court to recover the excess collected above the sum claimed to be a reason- able charge. Robinson v. B. & O. R. R. Co., 64 W. Va. 406, 409, 63 S. E. 323. §3. Finality of Findings. See Allowances, §3; Courts, §2, §9 (a); Forwarders, I (b) (c), (d); Proced- ure Before Commission, §11; Rea- sonableness of Rates, §1 (f), (I). (a) The orders of the Commission are final unless (1) beyond the power which it can constitutionally exercise; -or (2) beyond its statutory power; or (3) based upon a mistake of law. I. C. C. v. U. P. R. R. Co., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. ed. 308. (b) In decisions of the Commission questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory and in vio- lation of the constitutional prohibition against taking property without due process of law; or if the Commission acts so arbitrarily and unjustly as to fix rates contrary to evidence or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, de- termines the validity of the exercise of txie power. I. C. C. v. U. P. R. R., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. ed. 308. (c) The Supreme Court cannot as- sume that an order of the Commission reducing rates was based upon the power conferred upon it to prescribe reasonable rates rather than upon a basis beyond the scope of its authority, where so to assume would make the order entered repugnant to the statute as being un- justly discriminatory against a certain locality. S. P. Co. v. I. C. C, 219 U. S. 433, 450, 31 Sup. Ct. 288, 55 L. ed. 283. INTERSTATE COMMERCE COMMISSION, §3 (d)— §9 (a) 431 (d) It is not for the Commerce Court to say whether the Commission has prop- erly attached great or little weight to evidence adduced upon a given point or whether the conclusion reached by the Commission upon testimony as to facts alone shows a mistake as to some partic- ular fact not essential or vital to the proceeding, or an inadvertency, or is not such a conclusion as the Commerce Court might have reached. If the particular matter in issue and inquired into was one of fact and a full hearing was af- forded and the conclusion reached is supported by substantial evidence, it will not be nullified by the courts. N. & W. Ry. Co. V. U. S., 195 Fed. 953, 959. (e) By the Hepburn amendment the rate-making power was conferred to a certain extent upon the Commission. To- day its conclusions of fact in administer- ing the first, third and apparently the second sections are conclusive. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 412. (f) Within broad lines of discretion the courts regard the Commission's con- clusions on questions of fact as final. In Re Advances of Rates — Western Case, 20 I. C. C. 307, 317. (g) The courts are not competent to determine questions of fact within the jurisdiction of the Commission as against the Commission after the latter, upon complaint and answer, has investigated such questions and found thereon. Gund & Co. V. C. B. & Q. R. R. Co., 18 I. C. C. 364, 366. III. OVER PROCEDURE. §4. Examiners. (a) Under sections 12 and 14, of the Interstate Commerce Act, the Com- mission through examiners may make Investigations where the report of the carrier is not accurate or truthful, or the Information furnished is not suffi- ciently complete to enable the Commis- sion to perform its duty, and may in- quire into the intrastate business of the carriers where such inquiry is essential to know the true condition of inter- etate business. Goodrich Transit Co. v. I. C. C, 190 Fed. 943, 965. §5. Orders. See Allowances, §3. (a) The Commission has complete power to suspend or modify its orders. Loftus V. Pullman Co., 19 I. C. C. 102, 104. (b) Orders with respect to rates are not conclusive beyond a period of two years. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 37. §6. Witnesses. (a) The Commission has no author- ity under the Act as amended to re- quire witnesses to answer any question it chooses to ask in an investigation Instituted by it for the purpose of dis- covering any facts tending to defeat the purposes of the Act, or for the purpose of recommending additional leg- islation relating to the regulation of commerce that it may conceive to be within the power of Congress to enact; but the purposes for which it may exact evidence embrace only complaints for violations of the Act and investiga- tions by it upon matters that might have been made the object of com- plaint. (Day, Harlan and McKenna, J J., dissenting.) Harriman v. I. C. C, 211 U. S. 407, 419, 29 Sup. Ct. 115, 53 L. ed. 253. IV. OVER RAILROADS. §7. Capitalization. See Evidence, §7; Express Compa- nies, §24; Reasonableness of Rates, §5. (a) The Commission is without con- trol over capitalization. It cannot place limitations upon the purposes for which stocks or bonds may be issued, nor designate what property they shall rep- resent. Advances in Rates — Western Case, 20 I. C. C. 307, 334. • (b) The Commission has no juris- diction over stock and ,bond issues of corporations engaged in interstate com- merce. Morgan Grain Co. v. A. C. L. R. R. Co., 19 I. C. C. 460, 471. §8. Physical Valuation. See Evidence, §49 (aa). (a) The Interstate Commerce Com- mission has no authority to make ^ physical valuation of a carrier. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 256. V. OVER RATES. §9. Interstate. See Commerce Court, §4. (a) In Western Oregon L. M. A. v. S. P. Co., 14 I. C. C. 61, the Com- 432 INTERSTATE COMMERCE COMMISSION, §9 (b)— (j) mission ordered a reduction of the rate of $5 per ton upon rougli green fir lumber and laths from points in the Willamette Valley to San Francisco to $3.40. Its opinion indicated that the car- riers formerly maintained a lower rate; that the lumber industry had been built up upon those rates; and that it was inequitable to the shippers for carriers in view of these facts to raise the rate to $5. It did not find, however, that the rate was unreasonable but based its decisions on the foregoing consid- erations. HELD, the Commission ex- ceeded its jurisdiction in assuming that it had power to substitute a new rate for a just and reasonable rate on the ground that it was a wise policy to do so, or that the railroad had so conducted itself as to be estopped in the future from being entitled to re- ceive a just and reasonable compensa- tion for the service rendered. S. P. Co. V. I. C. C, 219 U. S. 433, 443, 31 Sup. Co. 288, 55 L. ed. 283. (b) A decision as to reasonableness of rates is peculiarly within the prov- ince of the Commission to make, and its findings are fortified by presump- tions of truth. I. C. C. V. Chi. R. I. & P. Ry., 218 U. S. 88, 110, 30 Sup. Ct. 651, 54 L. ed., 946. (c) Not only is the Commission vested with a discretion in determin- ing the reasonableness of rates which cannot be disturbed but it is entitled to select the testimony which it will believe and rely upon according as it addresses itself to the discriminating judgment of the Commission. L. & N. R. R. Co. V. I. C. C, 195 Fed. 541, 564. (d) The Commission may not con- demn an existing rate whenever it is of the opinion that the same is un- just and unreasonable merely upon the expert knowledge and accumulated ex- perience of its members, but may do so only upon a full hearing giving an opportunity to the carrier to be heard and upon investigation by the Com- mission itself of the lawfulness of the rate in question. A. C, L. R. R, Co. V. I. C. C, 194 Fed. 449, 457. (e) The Commission, in an investi- gation of rates, may bring to the solu- tion of the question the accumulated experience and expert knowledge of its members, and it is its duty to do so, but before an existing rate may be condemned there must be a finding of some sort that it is unjust and unrea- sonable, and this finding must be based upon evidence of which the carrier is apprised so that it may meet the case brought against it if it so desires. A. C. L. R. R. Co. V. I. C. C, 194 Fed. 449, 457. (f) The courts will not interfere with the action of the Commission in fixing rates unless it clearly appears that the Commission went beyond its authority and the rates established in- juriously affected some substantial right of the carrier — are confiscatory, to use that term in its broad sense. Whether the rates are so or not is the test of their reasonableness. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 125. (g) Congress did not in the Act and its amendments intend to vest admin- istrative authority in the courts in the matter of fixing rates but on the con- trary committed the power to and imposed the duty to ascertain facts and determine what is reasonable in regard to rates and charges in view of such facts on the Commission. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 124. (h) The fixing of the rates to be charged by public service corporations is • a legislative function, and when Congress in the Act as amended June 29, 1906, confers upon the Interstate Commerce Commission the power to determine what are and should be reasonable rates to be charged by the carriers of interstate commerce, its action in the premises is conclusive on the courts, subject to the inhibition of the Constitution of the United States, which protects such companies against confiscatory rates. S. P. Co. v. I. C. C, 177 Fed. 963, 964. (i) The courts have no power to fix railroad rates, such power being vested in the Interstate Commerce Commis- sion, and where the Commission acting in its administrative capacity establishes certain rates the courts will not inter- fere unless some legal, constitutional or natural right has been violated. Phila. & R. Ry. Co. V. I. C. C, 174 Fed. 687, 688. (j) Under sections 12 and 15 of the Act as amended by the Hepburn Act of June 29, 1906, the Commission has au- thority to order a railroad to so adjust its rates as to prevent discrimination INTERSTATE COMMERCE COMMISSION, §9 (k)— (q) 433 against a shipper without prescribing th€ new rates to be applied or specifying how the cliarges should be equalized. N. Y. C. & H. R. R. Co. V. I. C. C, 168 Fed. 131, 136. (k) The rates on live stock to the terminal of defendant carriers at Chi- cago was published separately from the terminal charges for the haul from the terminal to the Union Stock Yards. The terminal railroad owned by the Union Stock Yards & Transit Co. charged defendants for the haul over its tracks. The Interstate Commerce Com- mission, in 12 I. C. C 507, found the ter- minal charge of $2 excessive and or- dered it reduced to $1, but based its order on the finding, not that the ter- minal charge was unreasonable in itself, but that when combined with the gen- eral transportation rate, produced on the whole an unreasonable charge for the entire haul. HELD, not having found the terminal charge unreasonable, the Commission had no authority to order it reduced in order to correct the total transportation charges. Stickney v. I. C. C, 164 Fed. 638, 644. (I) Power to determine and pre- scribe what are just and reasonable maximum rates to be charged in inter- state commerce is, in a limited way, con- ferred upon the Interstate Commerce Commission by existing statute laws; and as the Commision acts only as a legislative or administrative board, and not judicially, its determination or ac- tion does not, and cannot preclude judicial inquiry into the justness and reasonableness of the rates, within the meaning of the constitutional guaranty, for that is a judicial question. M. K. & T. R. Co. V. I. C. C, 164 Fed. 645, 648. (II) The Commission, under section 15, has full authority over interstate rates and whatever regulations or practices enter into these rates and determine their value and availability. In Re Trans- portation of Wool, Hides and Pelts, 23 I. C. C. 151, 173. (m) The Commission is expressly empowered to determine the reasonable- ness of any part or the aggregate of charges for interstate transportation and to establish joint rates. Sunderland Bros. Co. V. St. L. & S. F. R. R. Co., 23 I. C. C. 259, 261. (mm) The Commission has power to determine the reasonableness of differ- ences in rates on various commodities. In Re Advances of Coal to Lake Ports, 22 I. C. C. 604, 623. (n) Defendants filed tariffs increas- ing all the class rates and about half of the commodity rates in Official Classifi- cation territory. Justification presented by the carriers was the want of addi- tional revenue, and the question pre- sented to the Commission was whether defendants were justified in laying the additional transportation burden upon the public for the purpose of obtaining greater net revenue. HELD, strictly speaking the Commission has no juris- diction to hear and determine that ques- tion; that it has no authority as such to say what amount the defendants shall earn, nor to establish a schedule of rates which will permit them to earn that amount. The authority of the Com- mission is limited to inquiring into the reasonableness of a particular rate or rates and establishing that rate or prac- tice which is found lawful, in place of the one condemned as unlawful. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 248. (o) The Commission alone has the power to determine the reasonableness of a rate. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 314. (p) The Commission is not a court of law. Its function is to apply the man- datory and restrictive provisions of the Act to stated conditions of fact. It must regard the problems presented from as many standpoints as there are pub-' lie interests involved. The making of a rate is in ultimate analysis, the exercise of a taxing power on commerce. The reasonableness of a rate is to be deter- mined by no mere mathematical calcu- lation, though figures of cost and reve- nue must play a not inconsiderable part in arriving at a final judgment. The unrestricted power to make rates, how- ever, should not rest in the hands of those whose tendency must be by reason of human nature to exact to the limit the highest return that can be procured. In Re Advances in Rates — Western Case, 20 L C. C. 307, 315. (q) It is doubtless true that in its con- trol over the charges which railroads may make, the Commission exercises a power so extensive as to justify the broadest consideration of the economic and financial effects of its orders. By 434 INTERSTATE COMMERCE COMMISSION, §9 (r)— (ee) its decisions in the Abilene Cotton Oil case, 204 U. S. 426, and in the Illinois Central case, 215 U. S. 452, the Supreme Court has erected the Commission into what has been termed "an economic court," or to give it a more common- place definition, but one of stricter legal analogy, a select jury to pass upon the reasonableness and justness of railroad rates, rules and practices. Within broad lines of discretion the courts regard the conclusions of the Commission on ques- tions of fact as final. There is an appeal upon questions of law by the carriers to the courts, but unless a constitutional guaranty is violated the order of the Commission is final, provided, of course, the Commission does not overstep the jurisdictional limits placed upon it by the statute. And as to the shipper this tribunal is his one and only resort against injustice. In Re Advances in Rates — ^Western Case, 20 I. C. C. 307, 317. (r) The Commission has jurisdiction to determine the reasonableness of an unpublished rate and award reparation. Goldenberg v. Clyde S. S. Co., 20 I. C. C. 527, 528; Maxwell v. W. F. & N. W. Ry. Co., 20 I. C. C. 197, 198; Memphis Freight Bureau v. K. C. S. Ry. Co., 17 I. C. C. 90. (s) Since the effective date of the Hepburn Act, the Commission has had authority to fix rates for the future. Na- tional Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 37; Receivers' & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 443. (t) The Commission may prescribe rates for the future. Williams v. Wells, Fargo & Co., 18 I. C. C. 17, 18. (u) The Commission has no authority to initiate rates. Williams v. Wells, Fargo & Co., 18 I. C. C. 17, 18. (v) The Interstate Commerce Com- mission has exclusive jurisdiction over interstate rates, and is necessarily not bound to follow decisions of state com- missions. Railroad Commission of Wis- consin V. C. & N. W. Ry. Co., 16 I. C. C. 85, 89. (w) The Commission has no power to require the increase of a rate. Merchants' Cotton Press and Storage Co. v. I. C. R. R. Co., 17 I. C. C. 98, 102; Kansas City Transportation Bureau v. A. T. & S F. Ry. Co., 15 I. C. C. 491, 497. (x) The Act provides that the Com- mission may prescribe rates for a future period not exceeding two years. Pacific Coast Lumber Mfrs.' Ass'n y. N. P. Ry. Co., 16 I. C. C. 465, 468. (y) The Commission has jurisdiction whenever the unreasonableness of the rate is in issue. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 5. (z) The power of the Commission Is ample to declare rates and rules set forth in a tariff schedule unjust or unreason- able .... and when a rate has been found unreasonable, and a reason- able rate has been established, to award reparation. Morse Produce Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 334, 337. (aa) The Commission has no au- thority to prescribe a minimum rate. Kent & Co. v. N. Y. C. & H. R. R. R. Co., 15 I. C. C. 439, 442. (bb) The Commission is authorized to reduce a rate, or to modify a rule or practice which affects a rate, only after full hearing upon complaint, and no or- der can be entered by the Commission affecting a carrier's rates or regulations except after such carrier has been given a full and fair opportunity to be heard. Kindel v. N. Y. N. H. & H. R. R. Co.. 15 I. C. C. 555, 557. (cc) The Commission is authorized under the law to condemn an existing rate and prescribe a reasonable maximum rate to be charged in the future only when, upon consideration of all the facts, circumstances and conditions appearing, it is of the opinion that the rate com- plained of is unreasonable or unjust. Mar- shall Oil Co. V. C. & N. W. Ry. Co., 14 I. C. C. 210, 213. (dd) The Commission has no au- thority to fix rates to be charged by a carrier in the future operating solely within the limits of the present state of Oklahoma, and it is doubtful whether it has jurisdiction to award reparation for shipments made between points in In- dian Territory to points in Oklahoma Territory prior to its formation as a state. Haines v. C. R. I. & P. Ry. Co., 13 I. C. C. 214. (ee) Complainant shipped cross ties between April 25 and August 12, 1907, from Barnett to McAlester, both located in what was then known as Indian Terri- tory. The proclamation announcing the admission of Oklahoma as a state was is- sued November 16, 1907, and Barnett and McAlester are now located in the state of INTERSTATE COMMERCE COMMISSION, §9 (ff)— §10 (f) 435 Oklahoma, Under section 1 of the Act, the Commission has jurisdiction over transportation from one place in a terri- tory to another place in the same terri- tory. HELD, the admission of the state of Oklahoma revoked the jurisdiction of the Commission over Barnett and Mc- Alester, the Enabling Act not undertaking to save causes pending before the Com- mission. Complaint dismissed for want of jurisdiction. (Harlan, comm'r, dissent- ing.) Hussey v. C. R. I. & P. Ry. Co., 13 I. C. C. 366, 368. (ff) The Act creates a special admini- strative tribunal clothed with power to hear and determine causes of action in- v^olving a right which has long existed at common law, viz., the right to re- cover for an unreasonable transportation charge. The Act did not abrogate this common law right, and by the express language of section 22 the remedies al- ready existing for its enforcement are saved. Where the special remedy is lost by a subsequent act ousting the jurisdic- tion of the Commission, this does not af- fect the right of claimant to pursue his common law remedy. Hussey v. C. R. I. & P. Ry. Co., 13 I. C. C. 366, 368. (gg) The complaint concerned ship- ments of cotton seed from Prague, Okla., to Warwick, Okla. At the time shipments moved Oklahoma was a territory, and the transportation between such points was wholly within that territory. Later it was admitted as a state. HELD, the Commission had no jurisdiction to enter- tain the complaint, since the provision of the amended Act relating to the trans- portation of property "from one place in a territory to another place in the same territory" expired so far as the territory of Oklahoma was concerned at the date of its admission into the Union. Chandler Cotton Oil Co. v. Ft. Smith. & Western R. R. Co., 13 L C. C. 473, 474. (hh) If there is a lack of jurisdiction, whether from absence of essential facts or through want of power in the statute, it is the duty of the Commission, of its own motion, to deny jurisdiction, even when such a question is not otherwise suggested and without respect to the re- lation of the parties. Chandler Cotton Oil Co. V. Ft. Smith & Western R. R. Co., 13 L C. C. 473, 474. (ii) Under the Hepburn amendment the (Commission has jurisdiction over car- riers engaged in the transportation wholly by railroad from one state to an- other, irrespective of "common control, management or arrangement," and the test of jurisdiction is not the arrangement under which the freight is delivered, but rather the character of the transportation itself, Leonard v. K. C. S. Ry. Co., 13 L C. C. 573, 578. §10. Intrastate Rates. See Interstate Commerce, §1 (d), §3 (d), §5 (f); Transportation, §11 (a), (b). (a) A local state rate that is part of a combination interstate rate when ap- plied to interstate commerce is within the jurisdiction of the Commission. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 I. C. C. 115, 120. (b) The Commission cannot order a reduction of intrastate rates. Roberts Cotton Oil Co. v. L C. R. R. Co., 21 I. C. C. 248, 249. (c) The Commission has no jurisdic- tion over a shipment moving from one point to another in the same state, though it was intended for, and subsequently was ri billed, beyond the state. Big Canon Ranch Co. v. G. H. & S. A. Ry. Co., 20 I. C. C. 523, 526. (d) The Commission has no jurisdic- tion over an intrastate shipment. Wells- Higman Co. v. G. R. & 1. Ry. Co.. 19 I. C. C. 487, 490; Pierce Co. v. N. Y. C. & H. R. R. R. Co., 19 L C. C. 579, 580. (e) Where cars in a movement from Traverse City, Mich., to Horatio, Ark., are billed to Memphis, rebilled to Wynne, Ark., and there received by the shippers' agent and rebilled to Horatio, the Com- mission has no jurisdiction over the rate from Wynne to Horatio, the movement being intrastate. Wells-Higman Co. v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 175, 176. (f) Complainant shipped cars of canned peaches from Oakhurst, Ga., to himself at Marietta, Ga., paid the freight thereon at Marietta and rebilled the cars to Cincinnati, O., and Lexington, Ky. The rate from Marietta to the points of destination was 27c. Oakhurst was only 4 miles from Marietta and complain- ant contended that it should take the same rate. He did not attack as unrea- sonable the rates from Marietta to points of destination. HELD, complainant hav- ing voluntarily adopted an intrastate movement in Georgia, could not complain of the 6c charge from Oakhurst to Mari- 436 INTERSTATE COMMERCE COMMISSION, §10 (g)— §14 (b) etta, since the rate being intrastate the Commission had no jurisdiction over it. Dobbs V. L. & N. R. R. Co., 18 I. C. C. 210, 211. (g) Complainant was informed by de- fendant's agent that there was no rate in effect from Armour, S. D., to Hettinger, N. D., and that the farthest point to be reached by defendant's line was Lem- mon, S. D. Complainant billed the car to Lemmon and upon arriving there found he could ship to Hettinger. He thereupon took possession of the car and removed a part of its contents and car- ried the same by wagon to Hettinger. He then took out a new bill of lading and sent the car with the remainder of its contents on to Hettinger. HELD, the movement from Armour to Lemmon was intrastate and outside the Commission's jurisdiction. Henley v. C. M. & St. P. Ry. Co., 18 I. C. C. 382, 384. (h) Complainant at Cincinnati, en- gaged in the dyeing of cotton fabrics from southern mills, was in competition with dyeing establishments at Clear- water, S. C, and Lanette, Ala. The rates from milling points in the state in which each of the southern dyeing enterprises was located were very low from those establishments to Chicago, the result be- ing that the total rate to Chicago from said southern milling point was lower than the rates from that point to Cin- cinnati plus the local rates from Cin- cinnati to Chicago. HELD, in determin- ing the question whether this adjustment of rates unjustly discriminated against complainant, the Commission had juris- diction over the rates from a milling point in a southern state to the dyeing point in said state, irrespective of the fact whether the state rate was estab- lished voluntarily by the carriers or by the state commission. Reliance Textile & Dye Works v. Sou. Ry. Co., 13 I. C. C. 48, 54. §10^2- "territorial Rates. See Supra, §9 (dd), (ee). (a) The Interstate Commerce Com- mission, prior to the amendment on August 29, 1906, of the Act under which it operated, had no jurisdiction to fix or adjust charges or rates on shipments. the carriage of which was wholly with- in a territory. Ft. Smith & W. R. Co. V. Chandler Cotton Oil Co., 25 Okla. 82, 83, 106 P. 10. §11. Suspension. See Advanced Rates, §1 (4) (a). (a) The Commission is not empowered to suspend the operation of a schedule after it has gone into effect. Rehearing denied. In Re Investigation of Proposed Rates on Lumber, 21 I. C. C. 16, 17. (b) Section 15, as amended in 1910, confers upon the Commission authority to postpone the effectiveness or to sus- pend the operation of any tariff filed by an interstate carrier in which any new- rate, fare, charge or regulation is stated. Commutation Rate Case, 21 I. C. C. 428, 429. §12. Undercharges. See Undercharges, §1. (a) The Commission is without au- thority to enter an order requiring a shipper to make good an undercharge. Falls & Co. V. C. R. I. & P. Ry. Co., 15 L C. C. 269, 273. §13. Unpublished Rate. See Evidence, §60. (a) Where a transportation service has been rendered for which no tariff authority whatever exists, and the ship- per has paid the sum claimed by the car- rier for that service, the Commission has jurisdiction to determine the reasonable charge for the service, and to order re- payment of the amount in excess thereof collected by the carrier. Maxwell v. W. F. & N. W. Ry. Co., 20 I. C. C. 197, 198; Goldenberg v. Clyde S. S. Co., 20 I. C. C. 527, 528; Memphis Freight Bureau v K. C. S. Ry. Co., 17 L C. C. 90, 91, 92. VI. TO AWARD DAMAGES. See Reparation. §14. In General. See Supra, §1 (m); Allowances, §14 (f), (g); Claims, §1 (aa). (a) Depreciation of real estate values and loss of tenants are damages over which the Commission has no jurisdic- tion. Mattison v. P. Co., 23 I. C. C. 233, 235. (aa) The Commission has no jurisdic- tion to enforce the specific performance • of a contract relating to switch connec- tions nor to award damages for its breach. Ralston Townsite Co. v. M P. Ry. Co., 22 L C. C. 354, 355. (b) The Commission has no author- ity to administer a remedy in applica- INTERSTATE COMMERCE COMMISSION, §14 (c)— (m) 437 tions for relief based solely upon a con- tractual relationship between the parties. Wood-Mosaic Flooring & Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 458, 459. (c) Complainant had a carload of wheat refused that was an "order-notify" shipment. It asserted that had the usual course been followed of placing "order- notify" shipments on defendant's "hold" track instead of consignee's private sid- ing, the likelihood of an unwarranted in- spection and refusal of shipment would have been considerably lessened. HELD, responsibility for that action would have to be determined by another tribunal, as the Commission is not authorized under the statute to regulate such matters. Kay Co. V. D. & R. G. R. R. Co., 21 I. C. C. 239, 240. (d) Complainant shipped by barge from Brevoort, Miss., to Cincinnati, O., a cargo of rough oak, gum and cypress lum- ber. Upon arrival at Cincinnati, it was transferred into 21 cars and charges based on a weight of 1,053,200 lbs. were assessed. Complainant alleged that ow- ing to negligent handling at Cincinnati the lumber when loaded into the cars was allowed to get wet and absorbed water to the extent of 148,723 lbs. At destination complainant weighed dry 1,000 feet of each kind of lumber shipped, applied such weights to the respective aggregate num- ber of feet in the cars and obtained an estimated dry weight of 904,477 lbs. It asks reparation for the difference be- tween such estimated dry weight and the billed weight. HELD, the Commission is without authority under the Act to award damages for negligence of the kind here alleged, such matters being within the jurisdiction of the courts. Buffalo Hard- wood Lumber Co. v. B. & O. S. W. R. R. Co., 21 I. C. C. 536, 538. (e) Damages may be awarded for a loss sustained through the failure of the carrier to comply with reconsignment or- ders; but the decline in the market price of a commodity and commissions for its sale are not within the Commission's jurisdiction. Hanley Milling Co. v. P. Co., 19 I. C. C. 475, 476. (f) The Commission assumes no juris- diction over such subjects as jolting, prompt settlement of damages, and polite treatment. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 515. (g) A finding of general damages by the Commission would be mere opinion. not enforceable by the Commission nor conclusive upon the courts, to which, in any event, resort must be had. Hillsdale Coal & Coke Co. v. Penn. R. R. Co., 19 I. C. C. 356, 371. (h) It is in the nature of a tort for a carrier to close a shipper's switch and re- fuse to place cars thereon. Hillsdale Coal & Coke Co. V. Penn. R. R. Co., 19 I. C. C 356, 308. (i) The petitioner, a Pittsburgh com- mission merchant, charged the defend- ant with having persistently delayed his carloads of fruit at yards where they were not accessible to teams and could not be unloaded, while at the same time according to other shippers prompt service in placing cars at the unloading platform. Complainant asked damages in the sum of $30,497.70 for loss entailed upon him through demur- rage, storage, the employment of addi- tional help and loss of trade, fruit hav- ing reached him in a heated, withered, shrunken and rotten condition. HELD, the Commission had no jurisdiction to award the damages asked, the case be- ing one for the courts. (Lane, Comm'r, dissenting.) Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 369. (j) The language of the Act being of doubtful interpretation, the Commis- sion, which is a special tribunal of limited powers, ought not to take juris- diction, but should resolve the doubt in favor of the court, where claims of loss and damage resulting from discrimina- tion in use of facilities ordinarily be- long, Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 369. (k) The Commission has no power to award damages for loss and damage re- sulting from decay of fruit arising from delay and discrimination in furnishing unloading facilities. Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 368. (1) The Commission is not vested with the powers of a court of equity to relieve from the hardships resulting from improvident arrangements between the parties. Werner Saw Mill Co. v. I. C. R. R. Co., 17 L C. C. 388y*396. (m) The Commission has no com- mon-law or equity jurisdiction, but only such authority as is prescribed in the Act. Laning-Harris Coal & Grain Co. V. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 38. 438 INTERSTATE COMMERCE COMMISSION, §14 (n)— JUDICIAL NOTICE (n) Breaches of duty by a carrier, such as loss of or damage to property in transit and the failure to make de- livery safely and with reasonable des- patch, in accordance with the contract, expressed or implied, which a carrier enters into when accepting a shipment for carriage, are matters solely within the jurisdiction of the courts. Blume & Co. V. Wells, Fargo & Co., 15 I. C. C. 53, 55. (o) Defendant express company, on a carload of a perishable commodity (not specifically described) from Rocky Ford, Colo., to Pittsburgh, Pa., was specifically instructed to deliver the same at a certain produce station in Pittsburgh. It turned the shipment over to another express company at the wrong junction point, and the car was delivered at the wrong station in Pitts- burgh. Before it could be switched to the right station the market price for the commodity had gone off so materi- ally that complainant sold it at a large loss. HELD, the Commission had no jurisdiction to award reparation for the damage so sustained. Blume & Co. V. Wells, Fargo & Co., 15 I. C. C. 53, 55. (p) With respect to the performance by carriers for the shipping public of their general duties as common car- riers other than those covered by the Act, the Commission is wholly without authority. Breaches of duty in that re- spect, such as the loss of or damage to property in transit, the failure to make delivery safely and with reason- able despatch, in accordance with the contract, expressed or implied, which a carrier enters into when accepting a shipment for carriage, are matters that are solely within the jurisdiction of the courts. Blume & Co. v. Wells, Fargo & Co., 15 I. C. C. 53, 55. (q) The Act confers upon the Com- mission power and authority to enter orders only with respect to the rates and practices of carriers; as to all claims that may arise out of failure of carriers to carry out their contracts of transportation promptly, and safely and properly perform their duties as common <;arriers, the Commission is without authority to afford redress. Blume & Co. v. Wells, Fargo & Co., 15 I. C. C. 53. (r) The Commission has no authority to award damages due to loss and dam- age resulting from wrong terminal de- livery of shipment of perishable fruit. Damages may be awarded by the Com- mission only for a violation of some provision of the Act. Blume & Co. v. Wells, Fargo & Co., 15 I. C. C. 53. (s) The Commission is without au- thority to enforce compliance by car- riers with any duties except those pre- scribed by the Act; for the enforce- ment of duties not so prescribed, the appropriate remedy must be sought in the courts. Royal Brewing Co. v. Adams Express Co., 15 I. C. C. 255, 256. (t) The Commission has no juris- diction to determine whether the rights of a minority stockholder in one rail- road absorbed by another have been in- fringed, where the purpose of the pro- ceeding before the Commission is to obtain information for the complainant to determine whether, as a stockholder, it would be advisable to bring a suit in equity for an accounting against the railroads involved. Manning v. C. & A. R. R. Co., 13 I. C. C. 125, 127. (u) The Interstate Commerce Com- mission is not vested with jurisdiction over suits to recover damages for de- lay in the delivery of an interstate ship- ment, so as to prevent the state courts from entertaining such actions. Pitts- burgh C. C. & St. L. Ry. Co. v. Knox (Ind., 1912), 98 N. E. 295, 299. (v) The Commission has no jurisdic- tion over loss and damage claims. Ful- lerton Lumber Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 150. (w) The Commission is without jurisdiction to award damages for de- lay and deterioration of shipments in transit. Rivers Bros. Co. v. Wells, Fargo & Co., Unrep. Op. 496. INTERVENERS. See Courts, §9 (i). INTRASTATE COMMERCE. See Cars and Car Supply, §5; Inter- state Commerce, §3; Interstate Commerce Commission, §10. JOINT RATE. See Through Routes and Joint Rates, §3. JUDICIAL NOTICE. See Evidence, III. JUSTIFICATION— LIGHTERAGE, §2 (a) 439 JUSTIFICATION. Of Blanket Rate — See Blanket Rates, §3. Of Discrimination — See Dis- crimination, lit. Of Increased Rates — See Advanced Rates, 11. KNOCKED DOWN SHIP- MENTS. See Classification, §5. LACHES. See Reparation, §10. LAND GRANT RAILROADS. See Reduced Rates, §4 (a); Tariffs, §7 (cc). (a) Complainant shipped 11 carloads of anthracite coal from Chicago, 111., to Sturgis, S. D., for use of the United States government at Fort Meade, S. D., purchased by the United States at a price which included delivery of the coal at Sturgis. Defendant operated between Chicago and Sturgis 248 miles of land- grant aided railroad, over which the gov- ernment was required to pay only 50 per cent of the commercial rate. The ship- ments, however, were assessed the pub- lished rate of $6.80 per ton. The car- rier, through error, quoted to complain- ant a rate of $5.9915 per ton, the land- grant rate. This rate was established subsequent to the shipment to coal con- signed to the government at Sturgis. The reasonableness of the $6.80 rate was not questioned, the propriety of the applica- tion of the land-grant rate to the ship- ment being involved. HELD, that it is improper to permit the benefit of special rates on government material to accrue to anyone other than the government it- self. Reparation denied. Havens & Co. V. C. & N. W. Ry. Co., 20 I. C. C. 156, 158. (b) Congress, in granting rights of way to defendants in Indian Territory, provided that the rates in that territory should not be higher than those charged in Kansas, Arkansas and Te.:as. HELD, the Commission had no jurisdiction to enforce such provision, and even if it had, the provision was too indefinite to be capable of enforcement. Haines v. C. R. I. & P. Ry. Co., 13 I. C. C. 214, 21o. LEASE. See Common Carrier, §2; Facilities and Privileges, §2 (f) ; Reports, I (d); Restricted Rates, I (d); Spe- cial Contracts, §2 (aa), §5 (h). LEGAL RATE. See Tiirough Routes and Joint Rates, §22. LEGALITY. See Reconslgnment, I; Released Rates, ill; Restricted Rates, i; Track Storage, 11. Of Allowances — See Allowances, IV. Of Divi- sions — See Divisions, IV. Of Group Rates — See Blanket Rates, §2. Of Proportional Rates — See Propor- tional Rates, III. Of Reduced Rates — See Reduced Rates, II. Of Special Contract Since Passage of Act — See Special Contract, II. Of Substitution of Damages — See Sub- stitution of Tonnage, II: Of Tariffs —See Tariffs, §14. LIGHTERAGE. I. CON'^ROL AND REGULATION. §1. Jurisdiction of Commission. II. CHARGES. §2. Reasonableness. §3. Discrmination. III. ALLOWANCES. §4. In general. I. CONTROL AND REGULATION. See Commerce Court, §3 (c). §1. Jurisdiction of Commission. (a) It must not be inferred that the Commission disclaims jurisdiction over lighterage service. On the contrary, that service must be conducted in accordance with requirements and prohibitions of the Act. Federal Sugar Refining Co. v. B. & O. R. R. Co., 17 I. C. C. 40, 45. II. CHARGES. §2. Reasonableness. See Any Quantity Rates, I (f); Ter- minal Facilities, §3 (k). (a) On cotton moving by rail and ocean from points in Georgia and Ala- bama to New YorK City, th, defendants made joint any-quantity rates subject to a rule providing that on shipments of less than 24,000 lbs. a lighterage charfre of 3c per 100 lbs., with a minimum charge of $6, should be assessed when the light- erage service was performed by the steamship company; on shipments of 24,- 000 lbs. or more, the rate named included lighterage service. Complainants con- tended that the material factor in deter- mining the lighterage charge should be the quantity delivered on one lighter or in one lighterage service, and that a charge made for lighterage of smaller quantities than 24,000 lbs. was unreason- 440 LIGHTERAGE, §3 (a)— (h) able, if several shipments agp;regatin5 more than 24,u00 lbs. arrived on one steamer. HELD, that, individual ship- ments by different shippers cannot lose their identity simply because tl- y are shipped on one steamer; that the lighter- age charge imposed is on the principle f a lower rate on carload than on less-ihan- carload quantities and therefore must be considered reasonable. Weld & Co. v. Ocean S. S. Co., 21 I. C. C. 58L §3. Discrimination. See Allowances, §12 (1) (a). (a) Unjust discrimination results from paying lighterage allowance to one shipper and refusing such allowance to another shipper performing a similar service. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200. (b) There is little ground for denying a lighterage privilege and allowance to complainant where its sugar crosses the lighterage limits, while according such privilege and allowance to another ship- per within the lighterage limits. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 L C. C. 200, 215. (c) When a shipper tenders its sugar to the defendants on lighters at tl-eir regular receiving stations on the Jersey shore, it must be received and carried thence to destination on rates, terms and conditions that are no less favorable to the complainants in any particular than the rates, terms and conditions governing and surrounding the sugar traffic of a competitor, brought by them on floats and lighters to the same station for carriage to the same destination. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 I. C. C. 200, 217. (d) A carrier must lighter sugar it- self or allow each shipper to do it in his own way, and if an allowance is paid to one shipper it should be paid to another performing the same service. Federal Sugar Refining Co. v. B. & O. R. R. Co., 20 l. C. C. 200, 215. (e) Defendants carried a rule in their tariffs that shipments of lurber to Npw York could be consigned "New York lighterage free," and upon arrival of cars the consignee should specify a particular lighterage destination, and upon the arrival of the lighter at such destination provide a dock berth for such lighter. Complainant, who had lumber delivered at Wallabout Basin, N. Y., was assessed demurrage charges whenever the pier he designated for delivery was occupied, thus compelling the lighter to tie up to another boat and wait until a berth was made. The public berths within the free lighterage limits of New York are 329 in number, and about 3,600 boats, excluding steamers and sch-oners, are engaged in making deliv2ries withia the harbor. HELD, if the obligation were imposed upon the carrier to find a berih before the free time began to run against the consignee it would be possible for consignees who desired s^or .ge of their shipment to regularly designate the more congested piers and thereby obtain the use of the carrier's equipment. The present practice of consigning lumber "New York lighterage free" is of value to the consignee in that it enables him to find a purchaF3r while the car is en route or before ultimate delivery. On account of the natural congestion of the New York harbor and the extent of the free delivery limits, the regulations of the de- fendant must be held reasonable, and de- fendants not required, when a designated pier is occupied, to deliver to an adjacent wharf. Mosson Co. v. Penn. R. R. Co., 19 I. C. C. 30. (f) Even if the lighterage service supplied by railroads entering New York in carrying traffic across the river be regarded as a species of cartage, it would not necessarily follow that such service must be extended to Yonkers, because it is provided in Greater New York. The peculiarities of the New York situation might justify the car- riers in affording to shippers in that city a facility of this kind which they would not be bound to furnish else- where. Federal Sugar Refining Co. v. B. & O. R. R. Co.,. 17 I. C. C. 40, 46. (g) By extension of their lines to New York by lighterage regulations, from the exercise of business discretion and not from compliance -with require- ments of the Act, defendants incur no liability, under the Act, to extend their lines to Yonkers or other near-by com- munities. Federal Sugar Refining Co. V. B. & O. R. R. Co., 17 I. C. C. 40, 45. (h) Terminals within the lighterage limits of New York Harbor are railroad terminals, none the less so because they are reached by ferries instead of bridges. To and from these places the defendants are common carriers "wholly by railroad," within the meaning of LIGHTERAGE, §3 (i)— LOCAL RATES 441 section 1, Federal Sugar Refining Co. V. B. & O. R. R. Co., 17 L C. C. 40, 46. (i) Floatage includes delivery of car and lading, while lighterage includes delivery only of the lading. Harlow Lumber Co. v. A. C. L. R. R. Co., 15 L C. C. 501, 503. III. ALLOWANCES. §4. In General. See Allowances, §8 (4). (a) Complainant, operating a sugar refinery at Yonkers, N. Y., was located about 10 miles north of the free light- erage limits prescribed by defendants. Under the free lighterage practices, de- fendants carried traffic from points in the harbor and from the east side of the river back and forth to the ends of their lines, located on the Jersey side. Competitors of complainant were located within the free lighterage lim- its, and on shipments from their plants located across the river from defend- ants' terminals were allowed regular through rates without the expense of lighterage. Complainant was compelled to pay from 3c to 4 l-5c per hundred lbs. for such service, in addition to the through rates. Complainant could reach defendants' terminals over the line of another carrier, but such course was impracticable on account of the con- gested traffic of said line. One of com- plainant's competitors owned one of the terminals and lighterage systems located across the river and used same in lightering its sugar, being allowed by defendants the same compensation as it derived from other freight light- ered by it. Nothing in the evidence indicated this competitor was making a profit from the lighterage of its sugar in excess of the lighterage charges paid by the complainant. HELD, de- fendants had in fact extended their lines and made the terminals thereof the east side instead of the Jersey side of the river, and inasmuch as carriers could not be compelled to extend their lines to new localities, complainant was not entitled to compel defendants to extend their lines to Yonkers, a point outside of New York City; that com- plainant's proper remedy -ivas an appli- cation for joint routes over defendants' and the lines of carriers reaching Yonk- ers; and that although the ownership of the terminal system by complain- ant's competitor created a suspicious situation, undue discrimination could not be held to arise therefrom in the absence of evidence that said competitor was making a profit on the lightering of its own sugar. (Lane, Clements and Harlan, Comm'rs, dissenting.) Federal Sugar Refining Co. v. B. & O. R. R. Co., 17 I. C. C. 40, 45, 47. (b) Defendant carrier's terminals are located at Jersey City and all shipments made over its lines from across New York Harbor must be lightered to its docks at that point. This service la performed by the defendant without cost to shippers. Complainant found it necessary to fill all the orders of its customers on the day on which they were received, and defendant was un- able to furnish barges and boats prompt- ly enough to accomplish this purpose, sometimes compelling complainant to wait three or four days. Complainant took the matter of lighterage into its own hands and performed the service on its own boats. It sought to recover 3 cents per 100 lbs. for this service. Some years after the shipments in question the defendant provided in its tariffs for the payment of 3 cents for this lighterage service, when performed for the convenience of defendant, but at the time of shipment no tariff was in effect authorizing defendant to pay for lighterage performed by the shipper. HELD, under the facts disclosed, the complainant having performed such lighterage service for its own conven- ience and to meet the special require- ments of its business, was not entitled to compensation. Barrett Mfg. Co. v. Central R. R. of New Jersey, 17 I. C. C. 464, 466. (c) Because defendant may not be able to lighter complainant's shipments as promptly as desired, complainant had no right to lighter its shipments and then claim reparation, since there was no tariff permitting such allowance. Barrett Mfg. Co. v. Central R. R. Co. of New Jersey, 17 I. C. C. 464, 465. LOADING AND UNLOADING. See Classification, §13; Facilities and Privileges, §10. LOCAL RATES. See Through Rates. §15. Routes and Joint 442 LONG AND SHORT HAULS, §1 (a)— §2 (e) LONG AND SHORT HAULS. I. CONTROL AND REGULATION. §1. Constitutionality of section 4. §2. Jurisdiction of Commission. IL SECTION 4 AS AMENDED. §3. Constitutionality. §4. Exceptions. III. APPLICATION OF SECTION 4 TO RATES. §5. Intermediate points. §6. Intermediate points off line. IV. COMPETITION AS JUSTIFICA- TION. §7. In general. §8. Markets. §9. Railroad. §10. Water. V. PROCEDURE. §11. Complaints and orders. §12. Evidence. (1) Burden of proof. (2) Circumstances of pro- bative force. f. CONTROL AND REGULATION. §1. Constitutionality of Section 4. See Constitutional Law. (a) Section 4 of the Act to regulate commerce, as amended June 18, 1910, is constitutional. A. T. & S. F. Ry. Co. v. U. S., 191 Fed. 856, 860. (b) The Government may properly de- termine what policy railroads shall pur- sue so long as the guarantees of the Con- stitution are safeguarded. If it is injuri- ous to the interstate commerce of the country and inimical to the public welfare to permit its railroad highways to be used so as to unduly promote the growth and prosperity of one city as against another, by charging more to the nearer point, it is within the proper sphere of Congress to prohibit, absolutely and completely, the pursuance of such policy by the railroads. In Re Application of the S. P. Co. for Relief under the Provision of the Fourth Section, 22 I. C. C. 366, 374. (c) The fourth section, as amended, provides that no carrier shall charge more for the short than for the long haul unless upon application to the Commis- sion permission to do so is granted by It. If this section were read by itself, and were taken at its literal face mean- ing, the Commission would possess unre- stricted power to grant or deny such ap- plication. It could permit in one case and refuse in another, according as its fancy might dictate. So construed, the proviso would probably be void as a dele- gation of legislative authority. The mak- ing of rates is a legislative function. To say whether a carrier shall or shall not be allowed to charge more for the short than for the long haul is virtually the making of rates, and therefore an attri- bute of the legislature. To invest an ad- ministrative body like this Commission with that unrestricted and unguided au- thority would be to give it legislative power, which cannot be done under our federal constitution. It is one thing to authorize such a body to administer the law in accordance with certain rules and standards prescribed by the legislature, and an entirely different thing to turn over to it the exercise of the legislative discretion itself. City of Spokane v. N. P. Ry. Co., 21 L C. C. 400, 411. §2. Jurisdiction of Commission. (a) Congress has said to carriers of interstate commerce by rail that they must not charge more for the short than for the long haul, unless they can show to the satisfaction of the Commis- sion that in so doing their rates do not violate the inhibition of the Act as ex- pressed in both the first and third sec- tions. BluelSeld Shippers' Ass'n v. N. & W. Ry. Co., 22 L C. C. 519, 530. (b) In passing upon an application for relief, the Commission must inquire whether rates to intermediate points are reasonable. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 529. (c) While the existence of a wrong cannot, of itself, justify its continuance, still, in determining what, under all the circumstances, is just and reasonable, in pursuance of the authority delegated to the Commission by the amended fourth section, it must certainly be to some ex- tent guided by conditions as it finds them. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 525. (d) Under the fourth section, as amended in 1910, the Commission may fix a rate at the more distant point below which the carrier must not go. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 415. (e) Under the fourth section, as amended in 1910, the Commission may prescribe the maximum difference In rates which may be made against the in- termediate point, or may fix a rate at the more distant point below which the car- rier must not go, or may define the terri- LONG AND SHORT HAULS, §2 (f)— §4 (c) 443 tory from which a higher intermediate charge may be made. City of Spokane v. N. P. Ry. Co., 21 L C. C. 400, 415. (f) The whole situation must be con- sidered by the Commission in passing upon an application for relief from the fourth section. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 414. II. SECTION 4 AS AMENDED. See Passenger Fares and Facilities, §6 (bb). §3. Constitutionality. See Constitutional Law. (a) The proviso in the fourth section, as amended in 1910, permitting the Com- mission in particular instances to author- ize the charging of a higher rate at the intermediate point is not void as a dele- gation of legislative authority. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 411. (b) If section 4, as amended, were read by itself and were taken at its literal face meaning, the Commission would possess unrestricted i>ower to grant or deny applications under it, and, thus construed, would probably be void as a delegation of legislative au- thority. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 411. (c) Where a proviso which is uncon- stitutional can be separated from the body of the statute the unconstitutional provision will be disregarded and the statute enforced as though it contained no such proviso, but where the proviso Is so far an essential part of the statute that it is evident that the legislature would not have enacted the statute itself without the proviso, then the entire stat- ute falls if the proviso is held invalid. It is the rule, however, that where a stat- ute is susceptible of two interpretations under one of which it is constitutional and under the other unconstitutional, that interpretation must be adopted which will save the validity of the Act. Under that view, the fourth section, as amended, must be held constitutional. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 411, 412. §4. Exceptions. (a) The guide to the exercise of th-e Commission's discretion in exempting carriers from the operation of the long and short haul provision in section 4 of the Act as amended June 18, 1910, is to be found in the other sections of the Act, thereby making the discretion to exempt carriers from the prohibition in fact not unlimited and imposing upon the Com- mission, not merely the right, but also the duty to grant such exemptions when- ever on investigation it shall find that no violation of any section of the Act would thereby be involved. A. T. & S. F. Ry. Co. V. U. S., 191 Fed. 856, 860. (aa) Fourth section application for permission to charge lower rates from the Missouri River and other territories to Salt Lake City than to intermediate points, denied. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 I. C. C. 115. (b) Relief from the rule of section 4 granted where water competition forced below what would be otherwise reasonable the rate on wool between the Pacific coast terminals and the Atlantic seaboard, the higher rates at intermediate points being reasonable, and no undue preference being given one locality over another. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 178. (bb) So long as every point of pro- duction is given a rate which the Commis- sion holds to be reasonable, and so long as the effect of water competition is ap- plied uniformly and without preference to western points of origin the Commission is inclined to grant transcontinental lines relief under the fourth section. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 179. (c) The Commission, in granting ex- emption to carriers from the provisions of the long and short haul clause of sec- tion 4 of the Act, may accomplish the re- sult (1) by fixing a geographical limit within which there can be no discrimina- tion, and permitting higher rates from other territory, having regard to the ex- tent of the competition which justifies the discrimination; or (2) it may fix the limit of the rail rate at the more distant point with reference to the rate. to inter- mediate points, thereby prescribing a zone of rate discrimination which may be lawful and justified; or (3) where either of these methods does not seem to be practicable, it may permit the carrier to continue the rates to the more distant point, and, dealing with intermediate points alone, prescribe the reasonable rate which the carrier, as an outgrowth of its policies or its methods of making 444 LONG AND SHORT HAULS, §4 (cc) — (ff) rates, may not exceed. In Re Application of the S. P. Co., 22 I. C. C. 366, 373. (cc) In point of law the Commission has before it, on every application by car- riers for deviation from the long and short haul clause of section 4 of the Act, the reasonableness of the rates which are involved in the carrier's application. It was not the intention of Congress to per- mit a carrier to discriminate in favor of a more distant point to such an extent as to effect not only an undue discrimination against the nearest point, but the imposi- tion of an excessive charge. In Re Appli- cation of the S. P. Co., 22 I. C. C. 366, 373. (d) The relieving power of the Com- mission is not to be exercised arbitrarily, but it is its duty to permit a higher in- termediate charge whenever the resulting rates will not contravene the Act in that they are unjust and unreasonable or un- duly discriminatory. This embraces both the preference against the intermediate point and the rate which that point is re- quired to pay. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 530. (dd) If the applicant for relief controls the long-distance rate and can determine what effect shall be given to competitive conditions which are supposed to justify the reduction at the farther point, then the Commission may also determine whether the carrier is justified in giving to those competitive conditions the effect which it does; may determine the effect which such conditions might properly have, and may fix the extent to which those conditions shall be given effect. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 L C. C. 519, 531. (e) It is possible that cases might arise where even though the long-distance rate were beyond the control of the appli- cant for relief, nevertheless some relation ought to be established between the rate to the more distant and those to the intermediate points. The intermediate rate should not exceed the long-distance rate plus a reasonable local charge from the more remote back to the intermediate point, and should perhaps in some cases be even less. Bluefield Shippers' Ass'n V. N. & W. Ry. Co., 22 I. C. C. 519, 531. (ee) "While the e^tistence of a wrong cannot, of itself, justify its continuance, and while the very purpose of the original fourth section of the Act and of the last amendment of June, 1910, was to prevent discrimination by charging a higher rate to intermediate points, still, in determin- ing what, under all the circumstances, is just and reasonable, in pursuance of the authority delegated to the Commission by the amended section, it must certainly be to some extent guided by conditions as it finds them. Bluefield Shippers' Ass'n V. N. & W. Ry. Co., 22 I. C. C. 519, 525. (f) Where a carrier, applying for re- lief from the fourth section to enable it to charge a higher rate to an intermediate point, is shown to control the rate at the farther distant point and where it can determine the effect to be given to the competitive conditions at the farther point, the Commission may also deter- mine whether the carrier is justified in giving to those competitive conditions the effect which it does give, may determine the effect which such conditions may properly have, and fix the extent to which those conditions shall be given effect. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 531. (ff) The Commission has not been left without a proper test to apply under sec- tion 4 as amended: the test of justness, of reasonableness, of discrimination, of preference and advantage; the test of fair play as between communities. "With this construction of the statute, which is historically supported, as well as by those more or less variable measures known as the canons of statutory con- struction, the statute becomes both prac- ticable and constitutional. The Commis- sion is neither forced to disregard it as a whole nor to eliminate any of its provi- sions; the section does not become an absolute long-and-short-haul section, be- cause the proviso permitting of excep- tions remains; the provisional clause does not relegate the entire section to the limbo of unconstitutionality, because it may be administered in thorough harmony with the whole Act. part of which it is; and the tests and standards to be applied are not matters of fancy, but are the express and positive words in the law itself. In short. Congress has undertaken to specify distinctly one practice which it wishes especially to destroy and charges the Commission not to permit it to obtain unless such discrimination, such preference, such practice may be shown not to be a dis- crimination that is unjust, a preference that is undue, or a practice that is unreasonable because of peculiar LONG AND SHORT HAULS, §4 (g)— (i) 445 facts and conditions. All the burdens of establishing these justifying condi- tions are cast upon the carriers; the doubts are to be resolved against them; the wish of Congress is expressed and clear. The carrier may no longer float along as under the old section, needing no other justification for its policy than its own conscience, but must set forth clearly what it is doing and convince those constituted to judge that this exceptional policy in a special case is in harmony with the intent of Congress that communities shall be treated fairly, one with relation to the other. The more distant community shall not be preferred over the nearer one because it may please the carrier to develop the one and retard the other. As ■ it costs more to carry traffic a longer distance, so the rate to the farther point shall not be made less than the rate to the nearer point merely because of railroad policy. So far the section establishes a shipper's principle and is in sympathy with and expressive of the most primary prin- ciple of equality. The proviso, how- ever, is primarily for the carrier's benefit; it recognizes that the railroad may engage in competition for traffic to more distant points at lower rates than may be charged to intermediate points without doing injury or injustice to such intermediate points. But to this policy a limit may be, indeed must be, put. Railroad Commission of Ne- vada V. S. P. Co., 21 L C. C. 329, 339. * (g) The test which the Commission must now apply to determine whether the carrier may be given the advan- tage of an exception to the general rule of section 4 as amended, is the same test that it may apply with respect to any other discrimination or inequality. There is incorporated in section 4 every standard set up by Congress as a guide to this Commission which is to be found in any section of the Act. And the leeway or discretion which may properly be exercised by the Commis- sion under any other section may prop- erly be exercised under this section. For instance it is for it acting within the limitations of the law to deter- mine what is a reasonable practice for a common carrier to pursue. This calls for the widest exercise of discretion. And if its judgment is arbitrary or it transcends those limitations properly binding such a tribunal its act may be set aside. But in every decision of the Commission under any section f^hatsoever there enters the element of personal judgment, just as in every verdict of a jury the result is colored necessarily by the mental attitude and experience of the juror. R. R. Com- mission of Nevada v. S. P. Co., 21 L C. C. 329, 338, 339. (gg) The more difficult labor of the Commission latterly has been to ad- just difficulties as between communities, and it has as one guide in this respect the fourth section of the Act. Congress felt the old section to be inadequate; it substituted another; it cast the burden upon the carrier of establishing its right to an exception from the general rule which it lays down and to which it expects adherence — the shorter haul shall not be charged the higher rate. R. R. Commission of Ne- vada V. S. P. Co., 21 I. C. C. 329, 337. (h) The Congress intended to say by the new fourth section that as a general rule there should be no lesser charge to the more distant points, but it was not willing to say that there should not be some exceptions to this rule. The railroads, however, were not to make these exceptions themselves. Such exceptions were to be made only upon petition to the Commission upon public justification being shown. R. R. Commission of Nevada v. S. P. Co., 21 L C. C. 329, 335. (i) There comes before the Com- mission upon application for permission to deviate from the prohibitive clause of the fourth section the inclusive ques- tion whether by such deviation any provision of the Act will be violated, and the burden rests upon the carrier to satisfy the Commission that no such result would be effected by the grant- ing of such permission — that no injus- tice will be done to the intermediate points with relation to the more dis- tant point. The purpose of the statute succinctly stated is to preserve har- mony between communities, individuals and carriers, to allay discord and prevent so far as may be oppression and in- justice. The unhampered exercise of a railroad policy may make for the material benefit of the carrier — at least for its immediate profit — but work a wrong with which the public must con- cern itself. To be concrete it may be (although this fact has not been 446 LONG AND SHORT HAULS. §4 (.i) — fk) established) that it is to the iBnancial interest of the transcontinental car- riers to make the same rates from the Missouri River as from Chicago, Pitts- burg and New York to the coast cities which lie on or near the ocean's edge, and comi>el the intermediate points to base their rates upon these coast terminals; but this decision on their part is certainly subject to review, and when Congress says that the Commis- sion "may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section," it means to lodge with the Commission, if it means anything at all, the power to pass in judgment upon the effect of a railroad policy which departs from the intendment of the law. A community is entitled to something more than a reasonable rate; it is entitled to a non- discriminatory rate. A carrier may not say, "We will give to this community a reasonable rate" and meet the full requirement of the law; it must view its rates as a whole and see to it that they effect no advantage or preference to one community over another which does not arise necessarily out of the transportation advantages which the one has over the other. Railroad Com- mission of Nevada v. S. P. Co., 21 L C. C. 329, 366. (j) The Commission must regard the proviso in the fourth section ("That upon application to the Interstate Com- merce Commission such common carrier may in special cases, after investigation, be authorized by the Commission to charge less for longer than for shorter distances for the transportation of pas- sengers or property; and the Commis- sion may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section: . . .") as subordinate to the preceding clause prohibiting the higher rate for the shorter haul, and to carry out this in- tent of the law a carrier must es- tablish before the Commission in order to secure an order of exception there- under more than merely its own desire to haul a great volume of traffic be- tween two distant points; it must prove that by such policy it will not impose unreasonable rates upon any intermediate point, and that its policy will not work an injustice of which such intermediate point may fairly com- plain. Unless it does make such proof the Commission is not justified unaer the law in excusing it from adopting its rates to the more distant point as the basis for rates to the nearer points. Railroad Commission of Nevada v. S. P. Co., 21 L C. C. 329, 368. (k) In dealing with the Reno Inter- mountain case the Commission will re- gard these propositions as established: (1) That the fourth section as amended in 1910 is as a whole constitutional, a provision of law within the proper scope of Congressional jurisdiction. (2) That the proviso authorizing the Com- mission to permit exceptions to the general prohibition of the section is not a grant of arbitrary or absolute power, but its exercise must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such exceptions legU and proper and in nowise an- tagonistic to other provisions of the Act. (3) That it must be affirmatively shown by the carriers seeking such ex- ception that injustice will not be done to intermediate points by allowing lower rates at the more distant points. (4) That the intendment of the law is to make its prohibition of the higher rate for the shorter haul a rule of well- nigh universal application from whicii the Commission may deviate only in special cases, and then to meet trans- portation circumstances which are be- yond the carriers' control; that is to say, a carrier shall not prefer the more distant point by giving it the lower rate because of any policy of its own initiation, but if at the more distant point it finds a condition to which it must conform under the imperious law of competition if it would partici- pate in traffic to that point, it may discriminate against the intermediate point without violating the law, pro- vided it establishes such necessity be- fore the Commission. But to this discrimination there may be a limit set by the Commission. The discrim- ination may not be such as to offend the reasonable standards of the law, for it is said that the Commission may from time to time prescribe the extent to which such designated common ca* rier may be relieved from the operation of this section. In what, then, does the new section 4 differ from its prede- cessor? It is not, perhaps, necessary to answer this question in all possible LONG AND SHORT HAULS, §4 (1)— (n) 447 detail. Two things are obvious: In- stead of the burden being upon the complaining shipper to show the injus- tice done and to parallel step by step the circumstances and conditions at the two contrasted points, the burden now rests clearly upon the shoulders of the carrier to make good its own title to an order of exception; and, further, this important modification, that by the elimination of the words "under sub- stantially similar circumstances and conditions" Congress has taken from the law an embarrassing modification of the prohibition against the higher charge to the intermediate point. Con- gress cut these words from the Act for the same reason that it cast the burden upon the carriers to prove their need for the exception; it wished to reduce the discrimination in rates be- tween points to a minimum and to make the pathway to the exception difficult, and not easy. Railroad Com- mission of Nevada v. S. P. Co., 21 I. C. C. 329, 341. (1) Under the decisions of the courts construing the fourth section of the Act before it was amended, it was the law that if circumstances and conditions at the more distant point were dis- similar carriers might, without re- straint, depart from the long-and-short haul rule. This virtually repealed that section for the reason that it is al- ways possible to show in the inter- lacing network of railways in this coun- try, and in view of the intricate com- mercial conditions, that circumstances are different at one point from another. To hold that carriers may, wherever the dissimilarity exists, meet that com- petition or decline to meet it. partially meet it here and fully meet it there, is to hold that they may without practical restraint discriminate between different localities. The Commission was forced to and did dismiss complaint after com- plaint upon the ground that there was a substantial dissimilarity of conditions at the more distant point without in- quiring whether in point of fact under the circumstances the discrimination against the intermediate point should have been permitted. That provision of the section authorizing the Commission to prescribe the instances in which carriers might depart from the rule of the section and the extent of that departure could be given no practical effect. This situation has been changed by the section as amended. The effect of the present section is certainly to require carriers to first obtain from the Commission leave to depart from the rule of that section, and that of itself is a most significant and im- portant thing. There is certainly a wide difference between the situation formerly when some complainant must attack the existing rate and make good by evidence his complaint and now, when the railroad must assume the burden of its justification. It is a matter of consequence tfiat every dis- crimination of this sort must be brought directly to the attention of the Com- mission and passed upon by that body, but something beyond this was within the legislative mind. Bearing in mind the authority which the Commission now administers in prescribing a rea- sonable rate and in declaring and cor- recting an undue preference it seems evident that the purpose of Congress was to commit to this body the duty of determining whether, if the carrier was permitted to charge a higher rate at the intermediate point, that would result in a violation of the provisions of the Act. But in so doing the Com- mission cannot act arbitrarily. It must investigate each case and if after such investigation it is of the opinion that a departure from the rule of the fourth section would not result in unreason- able rates or undue discrimination it must permit that departure. If, upon the other hand, it is of the contrary opinion, it must refuse the permission. Such is the only possible construction which can be put upon this section in connection with the entire Act, and if any doubt as to the real purpose of Congress could exist it must be ef- fectively put at rest by an examination of the history of the passage of this measure. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 409, 410, 412, 413. (m) Under the fourth section as amended the Commission is not to con- sider merely whether circumstances at the two points are dissimilar but whether on the whole that dissimilar- ity justifies a departure from the rule of the section. City of Spokane v. N. P. Ry. Co., 21 L C. C. 400, 414. (n) Under the amended fourth- sec- tion it is the duty of the Commission to investigate each application made by a common carrier for leave to depart 446 LONG AND SHORT HAULS. §4 (.1) — fk) established) that it is to the financial interest of the transcontinental car- riers to make the same rates from the Missouri River as from Chicago, Pitts- burg and New York to the coast cities which lie on or near the ocean's edge, and compel the intermediate points to base their rates upon these coast terminals; but this decision on their part is certainly subject to review, and when Congress says that the Commis- sion "may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section," it means to lodge with the Commission, if it means anything at all, the power to pass in judgment upon the effect of a railroad policy which departs from the intendment of the law. A community is entitled to something more than a reasonable rate; it is entitled to a non- discriminatory rate. A carrier may not say, "We will give to this community a reasonable rate" and meet the full requirement of the law; it must view its rates as a whole and see to it that they effect no advantage or preference to one community over another which does not arise necessarily out of the transportation advantages which the one has over the other. Railroad Com- mission of Nevada v. S. P. Co., 21 L C. C. 329, 366. (j) The Commission must regard the proviso in the fourth section ("That upon application to the Interstate Com- merce Commission such common carrier may in special cases, after investigation, be authorized by the Commission to charge less for longer than for shorter distances for the transportation of pas- sengers or property; and the Commis- sion may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section: . . .") as subordinate to the preceding clause prohibiting the higher rate for the shorter haul, and to carry out this in- tent of the law a carrier must es- tablish before the Commission in order to secure an order of exception there- under more than merely its own desire to haul a great volume of traffic be- tween two distant points; it must prove that by such policy it will not impose unreasonable rates upon any intermediate point, and that its policy will not work an injustice of which such intermediate point may fairly com- plain. Unless it does make such proof the Commission is not justified unaer the law in excusing it from adopting its rates to the more distant point as the basis for rates to the nearer points. Railroad Commission of Nevada v. S. P. Co., 21 L C. C. 329, 368. (k) In dealing with the Reno Inter- mountain case the Commission will re- gard these propositions as established: (1) That the fourth section as amended in 1910 is as a whole constitutional, a provision of law within the proper scope of Congressional jurisdiction. (2) That the proviso authorizing the Com- mission to permit exceptions to the general prohibition of the section is not a grant of arbitrary or absolute power, but its exercise must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such exceptions legU and proper and in nowise an- tagonistic to other provisions of the Act. (3) That it must be affirmatively shown by the carriers seeking such ex- ception that injustice will not be done to intermediate points by allowing lower rates at the more distant points. (4) That the intendment of the law is to make its prohibition of the higher rate for the shorter haul a rule of well- nigh universal application from whicli the Commission may deviate only in special cases, and then to meet trans- portation circumstances which are be- yond the carriers' control; that is to say, a carrier shall not prefer the more distant point by giving it the lower rate because of any policy of its own initiation, but if at the more distant point it finds a condition to which it must conform under the imperious law of competition if it would partici- pate in traffic to that point, it may discriminate against the intermediate point without violating the law, pro- vided it establishes such necessity be- fore the Commission. But to this discrimination there may be a limit set by the Commission. The discrim- ination may not be such as to offend the reasonable standards of the law, for it is said that the Commission may from time to time prescribe the extent to which such designated common car- rier may be relieved from the operation of this section. In what, then, does the new section 4 differ from its prede- cessor? It is not, perhaps, necessary to answer this question in all possible I LONG AND SHORT HAULS, §4 (1)— (n) 447 detail. Two things are obvious: In- stead of the burden being upon the complaining shipper to show the injus- tice done and to parallel step by step the circumstances and conditions at the two contrasted points, the burden now rests clearly upon the shoulders of the carrier to make good its own title to an order of exception; and, further, this important modification, that by the elimination of the words "under sub- stantially similar circumstances and conditions" Congress has taken from the law an embarrassing modification of the prohibition against the higher charge to the intermediate point. Con- gress cut these words from the Act for the same reason that it cast the burden upon the carriers to prove their need for the exception; it wished to reduce the discrimination in rates be- tween points to a minimum and to make the pathway to the exception difficult, and not easy. Railroad Com- mission of Nevada v. S. P. Co., 21 I. C. C. 329, 341. (1) Under the decisions of the courts construing the fourth section of the Act before it was amended, it was the law that if circumstances and conditions at the more distant point were dis- similar carriers might, without re- straint, depart from the long-and-short haul rule. This virtually repealed that section for the reason that it is al- ways possible to show in the inter- lacing network of railways in this coun- try, and in view of the intricate com- mercial conditions, that circumstances are different at one point from another. To hold that carriers may, wherever the dissimilarity exists, meet that com- petition or decline to meet it, partially meet it here and fully meet it there, is to hold that they may without practical restraint discriminate between different localities. The Commission was forced to and did dismiss complaint after com- plaint upon the ground that there was a substantial dissimilarity of conditions at the more distant point without in- quiring whether in point of fact under the circumstances the discrimination against the intermediate point should have been permitted. That provision of the section authorizing the Commission to prescribe the instances in which carriers might depart from the rule of the section and the extent of that departure could be given no practical effect. This situation has been changed by the section as amended. The effect of the present section is certainly to require carriers to first obtain from the Commission leave to depart from the rule of that section, and that of itself is a most significant and im- portant thing. There is certainly a wide difference between the situation formerly when some complainant must attack the existing rate and make good by evidence his complaint and now, when the railroad must assume the burden of its justification. It is a matter of consequence tfiat every dis- crimination of this sort must be brought directly to the attention of the Com- mission and passed upon by that body, but something beyond this was within the legislative mind. Bearing in mind the authority which the Commission now administers in prescribing a rea- sonable rate and in declaring and cor- recting an undue preference it seems evident that the purpose of Congress was to commit to this body the duty of determining whether, if the carrier was permitted to charge a higher rate at the intermediate point, that would result in a violation of the provisions of the Act. But in so doing the Com- mission cannot act arbitrarily. It must investigate each case and if after such investigation it is of the opinion that a departure from the rule of the fourth section would not result in unreason- able rates or undue discrimination it must permit that departure. If, upon the other hand, it is of the contrary opinion, it must refuse the permission. Such is the only possible construction which can be put upon this section in connection with the entire Act, and if any doubt as to the real purpose of Congress could exist it must be ef- fectively put at rest by an examination of the history of the passage of this measure. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 409, 410, 412, 413. (m) Under the fourth section as amended the Commission is not to con- sider merely whether circumstances at the two points are dissimilar but whether on the whole that dissimilar- ity justifies a departure from the rule of the section. City of Spokane v. N. P. Ry. Co., 21 L C. C. 400, 414. (n) Under the amended fourth sec- tion it is the duty of the Commission to investigate each application made by a common carrier for leave to depart 448 LONG AND SHORT HAULS, §4 (o)— §5 Oc) from the rule of the section. If it is of opinion upon a view of the entire situation that to grant the application will not result in unjust or discrimina- tory rates and practices, then it should b€ granted; otherwise it should be de- nied, and the Commission may, if in its opinion an unlimited departure from the rule of the section ought not to he granted but that a limited departure should be, prescribe in any way that is definite and certain the extent to which the departure may be made. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 415. (o) The amended fourth section pro- vides as did the original section that the Commission may from time to time prescribe the "extent to which such designated common carrier may be re- lieved from the operation of this sec- tion." Congress has evidently "had it in mind at all times that cases might arise where carriers should properly be permitted to charge a lower rate at the more distant point, and has in- tended to arm the Commission with authority to do justice in such in- stances by permitting a deviation from the rule of the section and prescrib- ing the amount of that deviation. This authority can be exercised by prescrib- ing the maximum difference which may be made against the intermediate point, or by fixing a rate at the more distant point below which the carrier must not go, or by defining the territory from which the higher intermediate charge may be made. City of Spokane v. N. P. Ry. Co., 21 I C. C. 400, 415. III. APPLICATION OF SECTION 4 TO RATES. §5. Intermediate Points. (a) Grand Junction, Colo., is located near the western boundary of that state upon the main line of the D. & R. G. R. R. 4C0., 330 miles west of Pueblo and 291 miles east of Salt Lake City. TraflBc from the east over the D. & R. G. R. R. passes through Pueblo on its way west. Traffic between the •ast and Salt Lake City via the Colo- rado Midland R. R. passes through Grand Junction en route. The car- riers sought to be relieved from the operation of the fourth section and permitted to charge higher rates to Grand Junction than to Salt Lake City. The average mileage from the Missouri River to Salt Lake City via the Union Pacific lines is 1,150 miles, while from the same points to Grand Junction the average distance is 942 miles. It was urged that the cost of handling business upon the D. & R. G. R. R. is so much greater than upon the Union Pacific that the higher charge may properly be imposed. HELD, that upon the score of distance alone the carriers cannot justify the higher rate at Grand Junction; that while the cost of service is higher upon the D. & R. G. R. R. than upon the Union Pacific the distance from Pueblo to Grand Junction via that carrier is 331 miles as compared with 546 miles from Cheyenne to Salt Lake City via the lines of the Union Pacific, and that the additional cost of service over the shorter distance is not such as to justify a higher rate than is im- posed for the longer haul; and there- fore the application of the D. & R. G. R. R. and the Colorado Midland R. R. for permission to charge higher rates at intermediate points than are con- temporaneously in effect to more dis- tant points will be denied as to all west-bound traffic originating at the Missouri River, the Mississippi River and Chicago and similar rate territory. Grand Junction Chamber of Commerce V. D. & R. G. R. R. Co., 23 I. C. C. 115. (aa) The cost of service is not suffi- cient justification for greater charge to intermediate point. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 1. C. C. 115, 119. (b) A higher rate for a shorter than for the longer haul is unduly prejudicial to the intermediate point. Huntingdon Lumber Co. v. I. C. R. R. Co., 23 I. C. C. 507, 509. (bb) Rates on flour and other grain products from southern Illinois to At- lantic seaboard not found to be in viola- tion of section 4, the lower rates to longer distance points being really divisions of a through rate. Southern Illinois Millers' Ass'n V. L. & N. R. R. Co., 23 L C. C. 672, 074. (c) A complaint that because through rates are much lower than a combina- tion on an intermediate point such in- termediate poi'^t cannot compete with points from which the through rate ap- plies cannot be settled by a reduction LONG AND SHORT HAULS, §5 (cc) — (dd) 449 of local rates from such intermediate point. R. R. Comm. of Nev. v. N. C. O. Ry. Co.. 22 I. C. C. 205, 215. (cc) The S. P. Co. petitioned for au- thority to continue a schedule of rates in force under which the charges from San Francisco to points intermediate to San Francisco and Portland were higher than from San Francisco to Portland and un- der which the charges from Portland to intermediate points were higher than those from Portland to San Francisco. Under the schedule in question the first class rate from San Francisco to Port- land by rail, 746 miles, was 51c; from San Francisco to Talent, Ore., 409 miles, $1.66; from Sacramento, a point 90 miles north of San Francisco and connecting with San Francisco by water, to Port- land, 51c, while the same rate to Talent, 346 miles, was $1.57; from Marysville, a point near the Sacramento river 52 miles north of Sacramento, to Portland, 630 miles, 70c, while the first class rate from Marysville to Talent, 294 miles, was $1.46. Other first class rates were, from San Francisco to Ashland, Ore., 404 miles, $1.63; Sacramento to Ashland, 340 miles, $1.54; Marysville to Ashland, 288 miles, $1.43; San Francisco to Medford, Ore., 416 miles, $1.63; Sacramento to Medford, 353 miles, $1.59; Marysville to Medford, 301 miles, $1.48. As typical of this sched- ule, for the long haul from San Francisco to Portland, the petitioner charged less than one-third of the rate which it im- posed upon an interior city for a distance little more than half of that from San Francisco to Portland. From Sacramento, the rate to Portland was less than one- third of the rate from Sacramento to a point just one-half as far. The rail rates between San Francisco and Portland in cither direction were influenced by water comp-etition, but were not extremely low for water rates. The petitioner received the back haul into southern Oregon by rail on much of this water traffic and was benefited thereby. The rail class rates between San Francisco and Portland made an average of 34.2c, which corre- sponded with a normal scale of rates be- ginning with 65c for first class. The petitioner extended the San Francisco- Portland rates to bay and river points in the vicinity of San Francisco. It made no showing that there was direct water competition between said points and Portland. While extending San Francisco- Portland rates to points on the south of San Francisco, it did not extend San Francisco-Portland rates to points on the Williamette river on the north and of- fered no explanation for this discrimina- tion. Sacramento had the same rate to Portland that San Francisco had and had the same first class rate to Oregon City, Salem, Albany, Eugene, and Roseburg, Ore., but to Medford, Ore., Sacramento had a lower rate than San Francisco. No explanation of this adjustment was of- fered. While the rates from Sacramento to Portland and Albany, a point 80 miles south of Portland, were the same as those from San Francisco to Portland and Al- bany, the rate from Albany to San Fran- cisco was 15c less than the rate from Albany to Sacramento. No reason was given for this adjustment. While the peti- tioner made no differential between Sac- ramento and San Francisco on traffic moving to Portland, it did make a differ- ential on traffic moving to San Francisco from Oregon City and Portland. HELD, the petitioner had failed to justify the violation of the long and short haul clause of section 4 of the Act in the ap- plication of (1) the same rates from other points upon San Francisco bay and points inland to Portland as were ex- tended from San Francisco; (2) higher rates southbound from Portland to points inland than to San Francisco; (3) higher rates to points on the Wiiiiamette river on traffic northbound from Sai Francisco than were applied on traffic southbound from Portland to points on the Sacra- mento river; (4) rates from San Fran- cisco that were higher to points between San Francisco and Portland than the combination of locals on Portland; (5) unreasonably higher rates at intermediate points. In Re Application of the S. P. Co. for Relief under the Provisions of the 4th Section, 22 I. C. C. 366, 376. (d) Wherever rates to intermediate points are made upon rates to more dis- tant points, the Commission should not only call upon the carrier to establish the nature of the competition between the basing points, but may properly require the carrier to convince the Commission that the rates so made do not result in unreasonable rates to intermediate points. In Re Application of the S. P. Co., 22 I. C. C. 366, 374. (dd) In making rates to intermediate points based on a more distant point, the carrier should give to the intermediate point the benefit of the rate to the farther 452 LONG AND SHORT HAULS, §5 (kk)— (n) until an actual test has been made. Com- mercial Club, Salt Lake City, v. A. T. & S. F. Ry. Co., 19 L C. C. 218. (kk) The present commodity rates charged by the Great Northern and the Northern Pacific R. Rs., from eastern ter- ritory to Spokane, are unreasonable, and just and reasonable rates which ought not to be exceeded for the future would be those which are set forth in schedule A attached. In fixing these rates the Commission has proceeded upon the view that under the present decisions of the Supreme Court of the United States it could not use the rate to Seattle as a standard by which to measure that to Spokane. If this were otherwise, if it were free to take into account all the competitive conditions existing both east and west, and to determine what in the light of all these conditions would be a just and reasonable relation between the rates of Seattle and Spokane, a somewhat different question would be presented. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 174. (1) Baker City and LaGrand, Ore., are located upon the main line of the Ore. R. & N. Co., and are distant from Omaha, 1,442 and 1,494 miles respectively. Walla Walla is upon a branch of the same com- pany leading from Pendleton to Spokane, and is 1,615 miles from Spokane. In the past the U. P. R. R. has maintained rates at LaGrand and Baker City which were somewhat higher than those to Pendleton from both St. Paul and Omaha. The dis- tance from St. Paul to Spokane is 1,500 miles, from Omaha to Baker City and LaGrand, 1,442 and 1,494 miles respect- ively. HELD, it is difficult to see how the Commission can with any consistency allow higher rates to these points from Omaha than are established from St. Paul to Spokane. There is no condition of con- struction or operation or financial result that would justify the Union Pacific lines in maintaining a higher rate for 1,500 miles from Omaha west toward Portland than is maintained by the N. P. and G. N. R. Rs. for a corresponding distance from St. Paul towards Seattle; and that the class and commodity rates specified in the Commission's schedule A would be just and reasonable rates to be ap- plied by the Union Pacific lines and their eastern connections from the defined ter- ritories therein named to Baker City, La Grand and Pendleton, Ore., and Walla Walla, Wash. City of Spokane v. N. P. Ry. Co., 19 L C. C. 162, 177. (11) A movement of traffic may be affected by water competition at a more distant point and yet a rate made up of the combination of the rate by water plus the rate back be unreason- able and unjust. Nevada, Utah, Arizona and Idaho are nearer to the Pacific coast than to the Atlantic, but this does not of itself justify charging them overland rail rates which will give them none of the advantages arising out of their shorter distance to an eastern base of supplies, nor does it follow that a rate to a point on the seaboard is lower than would be justi- fied if that point were not so situated. In short it is not sufficient to state that the terminal points are situated on the water to excuse the imposition of higher rates at intermediate points. Railroad Commission of Nevada v. S. P. Co., 19 I. C. C. 238, 250. (m) The mere fact that a rate to an intermediate point is as high as that to a more distant point on the same line in the same direction does not constitute a violation of the fourth section of the Act. Wheeling Corru- gating Co. V. B. & O. R. R. Co., 18 I. C. C. 125, 126. (mm) The application of the same rate to an intermediate point for a shorter distance as that to the more dis- tant point is not in violation of the long- and-short-haul clause of section 4 of the Act. League of Southern Idano Commercial Clubs v. Oregon Short Line R. R. Co., 18 I. C. C. 562, 565. (n) Complainants attacked the rate of 85c on hard wood lumber in car- loads from various points along and west of the Mississippi River to San Francisco and other Pacific terminals. In Burgess v. Transcontinental Freight Bureau, 13 I. C. C. 668, the Commis- sion found that the rate of 85c per 100 lbs. on hard wood lumber in carloads from Chicago and Chicago points and from Mississippi River points, including Memphis, Tenn., to Pacific terminals was excessive and should not ex- ceed 75c, and complainants in that case were awarded reparation on the basis of 75c on shipments made subsequent to the filing of the petition. For many years carriers had maintained the same rate to Pacific terminals on hard wood lumber from Chicago and Chicago-rate LONG AND SHORT^ HAULS, §5 (nn) — (q) 453 territory, Mississippi River common points and Missouri River common points, as well as from points in Ar- kansas, Oklahoma, Missouri and Ne- braska. When the order in the Burgess case was entered the carriers subse- quently put into effect from the points in question the 75c rate, making it applicable to all the territory to which the 85c rate had applied. The points in question west of the Mississippi River are intermediate to the points involved in the Burgess case and the Pacific coast. Most of the shipments involved in the present case moved from points of origin farther west and were therefore hauled shorter distances. Defendants submitted no evidence show- ing the rates attacked to be reasonable. HELD, the 85c rate was unreasonable. Reparation awarded on the basis of 75c on shipments made subsequent to the date of the filing of the complaint in the Burgess case but not upon ship- ments made prior to that date. Kinde- lon V. S. P. Co., 17 L C. C. 251, 253. (nn) The southern route of the Ore- gon Short Line extends from Granger, Wyo., through Pocatello, Idaho, to Huntington, Ore., at which point it joins the Oregon Railroad & Naviga- tion Co., which in turn connects at Wallula Junction, Wash., with the N. P. Ry., on whose rails the city of Ta- coma is situated. The northern route of the Oregon Short Line runs from Pocatello, north through Blackfoot, Ida- ho Falls and Dubois, Idaho, thence to Red Rock and beyond to Silver Bow, Mont., making a junction at Silver Bow with the N. P. Ry. Glenn's Ferry and Mountain Home are on the southern route in Idaho and intermediate to Pocatello and Huntington. On 12 car- loads of cattle shipped from Glenn's Ferry and 17 carloads shipped from Mountain Home to Tacoma over the southern route, complainant was as- sessed $145 per car. A 10-car rate of $129.80 to Tacoma was in effect at the same time over the southern route from Blackfoot, Idaho Falls and Red Rock to Tacoma, which points are lo- cated on the northern route and at considerably greater distances from Ta- coma than Mountain Home and Glenn's Ferry. Defendant attempted to justify this apparent violation of section 4 by showing that the northern and south- ern routes were in competition for busi- ness and the lower rates over the southern route from Blackfoot, Idaho Falls and Red Rock resulted from this fact. It appeared, however, that at the time of shipment no lO-carload rate was in effect from Red Rock over the north- ern route and that the single-car rate was $138. Shortly after the shipments in question the 10-carload rate of $129.80 from Blackfoot and Idaho Falls over the southern route to Tacoma was can- celed, and defendant also voluntarily withdrew the 10-car rate of $145 from Glenn's Ferry and Mountain Home and substituted a single car rate of $132 and $131.80 respectively. HELD, the rates charged were unreasonable, but since the violation of section 4 was not spe- cifically alleged in the complaint, rep- aration should be awarded on the basis of the then newly established rates of $132 and $131.80. Carstens Packing Co. V. O. S. L. R. R. Co., 17 I. C. C. 324, 327. (o) The rate on laths in carloads from Pembine, Wis., to Chicago is 10c; a charge of 22i^c from Beecher Lake, Wis., lying intermediate, is excessive, in view of the fact that defendant shortly after the shipment in question applied the Pembine rate to Beecher Lake and the circumstances and condi- tions affecting the two points appear similar. Reparation awarded. Neufeld V. C. M. & St. P. Ry. Co., 16 I. C. C. 26, 27. (oo) A high rate to an intermediate point cannot reasonably exceed the rate to a competitive point plus the local back. Valley Flour Mills v. A. T. & S. F. Ry. Co., 16 I. C. C. 73, 78. (p) A rate from an intermediate point should not exceed that from a farther distant point. Davenport Com- mercial Club V. Y. & M. V. R. R. Co., 16 I. C. C. 209. (q) Baden, Miss., is intermediate to Tutwiler, Miss., and Davenport, la, Kirkpatrick, Miss., is intermediate to Drew, Miss., and Davenport, la. De- fendants charged higher rates on ship- ments of cypress lumber from Baden and Kirkpatrick to Davenport than from Tutwiler and Drew, respectively, to Davenport. They also charged one cent higher than the lawful rate on shipments from Tutwiler to Davenport. HELD, that although the rates were not proved unreasonable per se, the charges from Baden and Kirkpatrick were in violation of section 4 of the Act, and 454 LONG AND SHORT HAULS, §5 (r)— (w) complainant was entitled to reparation on shipments from these points on the basis of tne legal rates from Tutwiler and Drew, and was also entitled to reparation for the one cent overcharge on shipments from Tutwiler to Daven- port. Davenport Commercial Club v. Y. & M. V. R. R. Co., 16 L C. C. 209 210. (r) Prior to January 3, 1908, the rate on chairs in carloads from Ply- mouth, Wis., to Chicago, and from Grafton, Wis., an intermediate point, to Chicago, was 15c per 100 lbs. under a long-and-short-haul tariff provision. January 3, 1908, defendant canceled this provision and charged 17i/^c from Grafton to Chicago, while charging only 15c from Plymouth. Sept. 1, 1908, defendant extended the Plymouth rate to Grafton. HELD, that on shipments made between January 3 and Septem- ber 1, 1908, from Grafton, complainant was entitled to reparation on the basis of the 15c rate. Milwaukee Falls Chair Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 217, 217. (s) Rates from Chicago and Cincin- nati territory, including Indianapolis, to Arkansas common points are ordinarily constructed on differentials above the rates from East St. Louis. These differ- entials apply on all traffic from Chicago and Cincinnati, but on furniture, chairs, barrels, ladders, etc., they do not apply from Indianapolis, the local class rates to East St. Louis being charged on such shipments. The rates at the time of hearing on furniture, chairs, wooden- ware and vehicles were, from Chicago and Cincinnati to East St. Louis, 9, 9, 10 and 9c, respectively, while from Indianapolis they were 32^, 321/^, 16% and 161/^c, respectively. While accord- ing to Indianapolis on traffic generally the same rates to Arkansas as from Chicago, defendants testified that they had excepted the articles complained of from the application of the Chicago rates because the rates on these articles from Indianapolis shipped in other di- rections, similar distances to those be- tween Indianapolis and Arkansas points, were much higher than the Chicago to Arkansas rate. The carriers contended that any change in Indianapolis rates would bring down the entire Central Freight Association territory adjust- ment or else disturb the parity existing between Indianapolis and other points in that territory. HELD, that being a shorter average distance from Arkansas points than Cincinnati, and traffic from the latter place in many cases passing through it, Indianapolis was entitled to the same rates on the commodities com- plained of as charged from Cincinnati. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 254, 271, 272. (t) Defendants exacted a rate of 97c on a carload of beet sugar from Las Animas, Colo., to Romero, Tex., no through rate being in force, the charge being the sum of the locals. At the time of shipment a through rate of 49c from other points, to which Las Animas is intermediate, was in force, which de- fendants later applied to Las Animas. HELD, the rate attacked was unrea- sonable and complainant was entitled to reparation on the basis of 49c. Ameri- can Beet Sugar Co. v. C. R. I. & P. R. R. Co., 16 I. C. C. 288. (u) Where at an intermediate point and longer-distance point circumstances and conditions are substantially similar, a higher rate to the former must be condemned. Heileman Brewing Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 396, 397. (v) On beer in carloads from La Crosse, Wis., to Granite Falls, Minn., the rate was 15c, but was not applicable to Glencoe, an intermediate point in Minnesota. On shipments to Glencoe, complainant was assessed a rate of 19.3c. HELD, the charge was unrea- sonable. Reparation awarded on the basis of 15c. Heileman Brewing Co. V. C. M. & St. P. Ry. Co., 16 L C. C. 396. (w) The Col. & S. E. Ry. was owned by a coal company competing with com- plainants. Joint rates were in effect between the C. & S. E. Ry. and the Santa. Fe Ry. from points upon the C. & S. E. Ry. to points upon the Santa Fe east and south of Trinidad, which took the same rate as to Trinidad. Complainant's competitor had a track- age contract with the C. & S. R. R. under which its coal moved from Lud- low to Trinidad. Complainant was lo- cated at Ludlow. No joint rates were in effect between the C. & S. R. R. and the Santa Fe and the local rate from Ludlow to Trinidad for shipment beyond was such as to give the compet- ing company an advantage of 40c per ton over complainants upon shipments LONG AND SHORT HAULS, §5 (x)_(ff) 455 to points on the Santa Fe, although the competing coal moved by the mines of complainants. HELD, the rates were unduly discriminatory. Defendants or- dered to desist from according to coal originating upon the C. & S. E. Ry. for points upon the Santa Fe lower rates than was given to complainants at Ludlow and that defendants should state the division of the joint rate al- lowed to the C. & S. E. Ry. in order that the competing coal company should not gain an advantage in that respect. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 402, 403, 404. (x) A lower rate to a more distant point on the same line is in violation of the fourth section of the Act, and is therefore unlawful. It might also be declared unlawful because discrimi- natory. Sunderland Bros. Co v. C. & N. W. Ry. Co., 16 I. C. C. 433, 434. (y) Defendant ordered to establish and maintain for a period of not less than two years a rate from Superior, Neb., to Lusk, Wyo., that shall not exceed the rate contemporaneously maintained from Superior to Douglas, Wyo., a farther distant point. Sunder- land Bros. Co. V. C. & N. W. Ry. Co., 16 I. C. C. 433, 434. (z) Low short-line rate to a longer- distance point justifies lower rates than to intermediate points on a longer line. Fort Dodge Commercial Club v. 111. Cent. R. R. Co., 16 I. C. C. 572, 575. (aa) Where a through rate from Chicago, St. Louis and similar points to Tucumcari, N. M., a point on the Rock Island system 59 miles east of Santa Rosa, N. M., plus the local rate from Tucumcari to Santa Rosa, w^as made less than the through rate to Santa Rosa, such adjustments of rates is to be condemned and should be revised so that the through rate should not exceed the sum of the locals. Moise Brothers Co. V. C. R. I. & P. Ry. Co., 16 I. C. C. 550, 557. (bb) On a carload of poles from Laporte, Minn., to Louisville, Ky., via Peoria, 111., complainant was assessed- 31c. The rate from Bemidji to Peoria was 16c and from Peoria to Louisville, lie, a total of 27c. Laporte was inter- mediate to Bemidji and Peoria. The tariff containirg the Bemidji rate did not specifically apply same to Laporte, but said rate was customarily so ap- plied and defendants admitted its ap- plicability. Subsequent to the ship- ment in question said 16c rate was ap- plied from Laporte to Peoria. HELD, the 31c rate was unreasonable. Repa- ration awarded on the basis of 27c. Du- luth Log Co. V. M. & I. Ry. Co., 15 I. C. C. 192, 194. (cc) Because the revenue per ton mile yielded by rates from farther dis- tant points is less than that yielded by rates from a shorter distant point, it does not necessarily follow that the latter is subjected to unjust discrimina- tion. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504. (dd) The Commission views with dis- favor the maintenance of a lower rate for a longer haul than for a shorter haul included within the longer, and the circumstances and conditions obtaining at the more distant point which are relied upon to justify it must not only be clearly shown to be substantially dissimilar from those prevailing at the nearer point, but also to clearly exer- cise a potent or controlling influence in making the lower rate. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 64. (ee) Dissimilar circumstances which justify a greater charge for a shorter than for a longer haul under section 4 will also prevent such rate from consti- tuting an illegal preference or advan- tage under section 3. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 I. c. c. 56, ee. (ff) A less charge for a longer haul than for a shorter one, where the latter is included within the former, is not unlawful under section 4 of the Act, if there is substantial dissimilarity of circumstances and conditions. Compe- tition between carriers at the more dis- tant point may create substantial dis- similarity of circumstances. A com- modity may be produced at two points widely distant from each other and different carriers may serve the differ- ent points. The commodity from one point of production may meet that from the other in competition in a common territory between the two points. If the carriers serving the one point of production make a reasonable and re- munerative rate therefrom to the com- mon field of consumption, the other producing point may be given equality 456 LONG AND SHORT HAULS, §5 (gg)— (ww) of rates to the common competing ter- ritory by the carriers serving such point of production, if such equalizing in rates is reasonable and remunerative. Bovaird Supply Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 62. (gg) The long-and-short-haul clause of the Act prohibits the charging of a higher rate to a less distant point only where the carrier responsible for both rates occupies a like relation to the more distant point to which the lower rate applies. Railroad Commission of Kentucky v. L. & N. Ry. Co., 13 I. C. C. 300, 309. (hh) Rate on wall plaster in carloads from Marlow, Okla., to Amsterdam, N. Y., found unreasonable to the extent that it exceeded the rate from Marlow to New York City, Amsterdam being intermedi- ate. Acme Cement Plaster Co. v. C. R. I. & P Ry. Co., Unrep. Op. 4. (ii) Combination rate applied on ship- ment of cement from Marlow, Okla., to Amsterdam, N. Y. Joint through rate in effect from Marlow, Okla., to New York City. Rate to Amsterdam held unreason- able to the extent of rate to Amsterdam, Amsterdam being intermediate. Acme Plaster Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 4. (jj) Rate on corn from Bingham, la., to St. Charles, Mo., found unreasonable to the extent that it exceeded the rate from Bingham, la., to St. Louis, Mo., St. Charles being intermediate. Langenberg Bros. V. Wabash R. R. Co., Unrep. Op. 6. (kk) Rate on pig iron, 9c per 100 lbs. from Mayville, Wis., to West Chicago, 111., $1 per gross ton to Joliet, which is inter- mediate to West Chicago. HELD, un- reasonable. Northwestern Iron Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 9. (11) Rate on lumber from West Lake, La., to Towner, Colo., found unreasonable to extent of exceeding rate contempo- raneously in effect between West Lake and Colorado common points, Towner being an intermediate point. Foster Lumber Co. v. K. C. S. Ry. Co., Unrep. Op. 68. (mm) A through joint rate of 39c per 100 lbs. on a carload of watermelons from Vincennes, Ind., to Owatonna, Minn., when there was a joint through rate of 23c per 100 lbs. over the same lines from Vincennes to Faribault, Minn., 15 miles beyond Owatonna, found unreasonable to the extent it exceeded 23c. Stacy & Sons V. E. & T. H. R. R. Co., Unrep. Op. 69. (nn) Reparation awarded on shipment of charcoal pig iron from Elk Rapids, Mich., to Hamilton and Brantford, Can- ada, on basis of lower rate in effect to a farther distant point. Superior Charcoal Iron Co. V. P. M. R. R. Co., Unrep. Op. 8G. (oo) Rates on common building brick from Mound Valley, Kan., to Bellevue, Neb., should not exceed rates to Omaha, Neb. Sunderland Bros. Co. v. M. K. & T. Ry. Co., Unrep. Op. 128. (pp) Rate on lumber from Tony, Wis., to Zumbrota, Minn., should not ex- ceed that in effect from Ingram, Wis. Partridge Lumber Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 138. (qq) Rate applicable to point 46 miles beyond, but not to point of destination. HELD, unreasonable, and reparation awarded. Holverscheid & Co. v. L. & N. R. R. Co., Unrep. Op. 158. (rr) Reparation claimed on basis of higher rate in effect to an intermediate point. Commission does not find that Merrill, Wis., is intermediate to Grand Rapids, Wis. Dismissed. Wisconsin Pulp & Paper Mfrs. v. D. & I. R. R. R. Co., Unrep. Op. 225. (ss) Rate canceled to prevent an ap- parent discrimination in favor of an in- termediate point. Isbell-Brown Co. v. L. S. & M. S. Ry. Co., Unrep. Op. 231. (tt) Rates applicable to intermediate points canceled through error. Subse- quently restored. Reparation awarded. Mason City Brick & Tile Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 287. (uu) Rate on crude oil from Stoy, 111., to points in Indiana should not exceed those in effect to Muncie, Ind., a farther distant point on the same line. Repara- tion awarded. Standard Oil Co, v. I. S. R. R. Co., Unrep. Op. 319. (vv) Higher rate in effect to inter- mediate point than to farther distant point on the same line. Reparation iwarded. Fort Scott Sorghum Syrup Co. V. St. L. & S. F. R. R. Co., Unrep. Op. 339. (ww) Rate lower from Missouri River to Eads, Colo., than from intermediate point voluntarily reduced. Reparation awarded and reduced rate ordered to be maintained for two years. Burno v. M. K. T. Ry. Co., Unrep. Op. 488. LONG AND SHORT HAULS, §5 (xx)— §6 (f) 457 (xx) Reparation awarded in connec- tion with shipments of beer and beer packages to and from points intermediate to Colorado common-point territory be- cause of exaction of rates higher than common-point rates. Anheuser-Busch Brewing Ass'n v. M. P. Ry. Co., TJnrep. Op. 497. (yy) Lower rates in effect to more distant point on same line. Subsequently reduced; reparation awarded. Standard Oil Co. V. C. C. C. & St. L. Ry. Co., Unrep. Op. 513. (zz) Rate from intermediate point higher than from farther distant point. HELD, unreasonable, and reparation awarded. Greer-Wilkinson Lumber Co. v. St. L. & S, F. R. R. Co., Unrep. Op. 541. (aaa) Rate to point more distant lower than to intermediate point. Rep- aration awarded and lower rate estab- lished. Burlington Lumber Co. v. C. & A. R. R. Co., Unrep. Op. 577. §6. Intermediate Points off Line. (a) The fact that Little Rock and Van Buren, Ark., are intermediate to Coffeyville, Kan., and Memphis, Tenn., on the line of one carrier does not render another carrier running between Coffeyville and Memphis, transporting petroleum between said points which it does not carry through either Van Buren or Little Rock, liable for vio- lating the fourth section of the Act for maintaining higher rates to such points from Coffeyville than to Memphis. Mer- chants' Freight Bureau v. M. P. Ry. Co., 21 L C. C. 573, 576. (b) While George's Creek mines are on lateral roads tliey must be regarded as intermediate for all practical rate- making purposes. Violation of the 4th section found. American Coal Co. v. B. & O. R. R. Co., 17 I. C. C. 149, 156. (c) Port Gibson, Miss., is located on the main line of the Y. & M. V. R. R. Co., about 10 miles west of Hermanville and seven miles from the east bank of the Mississippi River. Hermanville is located on a branch of that railroad, and both cities are substantially the same distance from New Orleans. De- fendant's rate on compressed cotton was from Port Gibson to New Orleans 22i^c and from Hermanville 27c. The lower rate from Port Gibson had orig- inally arisen on account of water com- petition, which had ceased. The Port Gibson rate on uncompressed cotton was only 2c less than that from Her- manville. HELD, the 4i^c difference on. compressed cotton was unreasonable and the Hermanville rate should not exceed the Port Gibson rate by more than two cents. Reparation denied. Planters' Gin & Compress Co. v. Y. & M. V. R. R. Co., 16 L C. C. 131, 132, 133. (d) Upon a carload of dried fruit in boxes from Fresno, Cal., to Bozeman, Mont., complainant was assessed a rate of $1.32, made up of the joint through rate of $1 from Fresno to Hel- ena, Mont., plus the local rate of 32c from Helena to Bozeman. On a similar shipment from Fresno to Bill- ings, Mont., complainant was assessed $1,371/^, made up of the local rate of 371/^c from Fresno to Lathrop, Cal., plus the joint through rate of $1 from Lathrop to Billings. Bozeman is lo- cated on defendant's line 140 miles west of Billings. Helena and Butte, Mont., are 98 and 96 miles respectively west of Bozeman. The joint through rate from Fresno to Helena and Butte is $1. At the time of shipment there was a joint through rate from Fresno of $1.10 to Fargo and Wahpeton, N. D., to Crookston and Fergus Falls, Minn., and to other points in both states more distant from Fresno than Bozeman and Billings by a substantial mileage. The $1.10 rate to these points applied not through Billings, but via Omaha. HELD, the rates charged were unreasonable, and $1.10 was a reasonable rate to both Bozeman and Billings. Reparation award- ed. Stone-Ordean-Wells Co. v. N. P. Ry. Co., 16 L C. C. 313, 314. (e) On carloads of clay conduit from Brazil, Ind., to Racine, Wis., a class rate of lie was exacted. At the same time a rate was in effect of 6%c to Milwaukee. Racine is only 20 miles from Milwaukee and is intermedi- ate to Brazil and Milwaukee on one line but not on defendant's line, which reaches Racine by a branch. HELD, the exaction of such rate did not vio- late the long-and-short-haul provision of section 4 of the Act. Milwaukee Electric Ry. etc., Co. v. C. M. & St. P. Ry. Co., 15 L C. C. 468, 468. (f) On carloads of clay conduit from Brazil, Ind., to Racine, Wis., a class rate of lie was assessed. At the time a rate of 6%c was in effect from Brazil to Milwaukee. Racine is 458 LONG AND SHORT HAULS, §6 (g)— §7 (aa) only 20 miles south of Milwaukee, but is not intermediate on defendant's line. Subsequent to the shipment a rate of 6c to Racine was established. Defend- ants admitted the rate exacted to be unreasonable. HELD, the lie rate was excessive. Reparation awarded. Milwaukee Electric Ry. etc., Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 468, 469. (g) The George's Creek coal district was connected with defendants' lines by two short lateral lines. The dis- trict is from 50 to 100 miles nearer tidewater points than the Pennsylvania small vein coal fields, and some 60 to 85 miles nearer than the like fields in West Virginia, The rates from the Pennsylvania and West Virginia fields were less than from the George's Creek field. HELD, the rates were in prac- tical violation of section 4 of the Act relating to long and short hauls despite the fact that the George's Creek district is not strictly intermediate between the Pennsylvania and West Virginia fields and tidewater. George's Creek Basin Goal Co. V. B. & O. R. R. Co., 14 L C. C. 127, 130. (h) On carloads of beer from St. Louis to Leadville, Colo., via the M. P. and D. & R. G. R. Rs. complainant was assessed for a part of the period 90c and for the remainder 95c, the charge for the portion of the haul from Pueblo to Leadville over the D. & R. G. R. R. being 45c. Complainant attacked this por- tion of the charge exacted. The joint rate via said carriers on beer from St. Louis to Salt Lake City was 70c, the route being from St. Louis to Pueblo and from Pueblo to Salt Lake City via Malta Junction, near Leadville. For- merly the main line of the D. & R. G. R. R. ran through Leadville. During the period in question, however, it ran through Malta Junction, a point about four and one-half miles from Leadville. Leadville was some 700 feet higher than Malta Junction and was reached by a branch line. Complainant contended that Leadville should be treated as an inter- mediate point and, therefore, the higher charge to Leadville than to Salt Lake City was in violation of the long and short haul clause in section 4 of the Act. The distance from Pueblo to Leadville was about 160 miles. The density of traffic upon the D. & R. G. R. R. main line was about the average for the whole United States. Its net earnings were some $3,000.00 per mile, and its funded indebtedness some $3,500.00 per mile, with a stock issue of some $38,000 per mile. For the past six years it had paid a 5 per cent dividend upon its preferred stock and had shown an annual surplus. Its receipts per ton mile upon all busi- ness were 1.346c and its cost of opera- tion 63.71 per cent of its earnings. The rate on beer from Missouri River to Den- ver, 538 miles, was 30c; from Denver to Salt Lake City over the D. & R. G. R. R., 742 miles, the rate was 50c. The rate attacked yielded for the haul from Pu- eblo to Leadville over 5c per ton mile. HELD, the 45c charge from Pueblo to Leadville was unreasonable to the ex- tent that it exceeded 30c, and reparation should be awarded; but the rate could not be attacked on the ground of viola- tion of the long and short haul provi- sion of section 4, since Leadville could not be held to be a point intermediate to St. Louis and Salt Lake City so as to be entitled to a rate not higher than the 70c rate between these points. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 13 L C. C. 329, 336, 337, 340. (i) On bananas from Gulf ports through Kansas City to Burlington, la., the rate was lower than to Kansas City. The rate was, however, a mere paper one, the shipments to Burlington moving through St. Louis. HELD, section 4 of the Act was not violated. Topeka Ba- nana Dealers' Ass'n v. St. L. & S. F. R. R. Co., 13 L C. C. 620, 627. IV. COMPETITION AS JUSTIFICA- TION. See Competition. §7. In General. (a) Where the charge to the more dis- tant point has not been forced down by competitive conditions below what would be a reasonable charge to the intermedi- ate point, then there is no justification for failure to observe the rule of the fourth section. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 L C. C. 115, 119. (aa) In determining questions under section 4, rates of the same class should be compared with one another. Trans- shipment and proportional rates should not be compared with local rates. South- ern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 673. LONG AND SHORT HAULS, §7 (b)— §8 (a) 459 (b) The policy of the Commission is that where a circuitous route desires to compete with water or rail transporta- tion at a given point it may do so with- out reducing its intermediate rates. Gile & Co. V. S. P. Co., 22 I. C. C. 298, 302. (bb) When competitive conditions make it imperative that some one must suffer it is pertinent to inquire how the least injury may be inflicted. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 536. (c) After determining the existence of competitive influence at a farther dis- tant point, the next question is, have those influences reduced rates to that point below what would be reasonable? For if the rates to the farther distant point are sufficiently high these ought not to be exceeded at a point with about a 100 miles shorter haul. Bluefield Ship- pers' Ass'n V. N. & W. Ry. Co., 22 I. C. C. 519, 526. (cc) The purpose of Congress seems to have been to keep alive competition between carriers at competitive points upon the theory, probably, that while in- justice might in some instances result, the general effect would be for the public good. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 1. C. C. 519, 536. (d) While market competition must be considered as one of the circumstances affecting a rate situation, to allow mar- ket competition as a sole and controlling factor under section 4 would render it nugatory. Railroad Commission of Ne- vada V. S. P. Co. 21 L C. C. 329, 367. (e) Irrespective of the fourth section there is no unjust discrimination because of a lower rate to a more distant point on the same line if such rate is forced through competition. Nebraska Mate- rial Co. V. C. B. & Q. R. R. Co., 20 I. C. C. 89. (f) Greater charge to intermediate stations will, upon expiration of six months from Aug. 17, 1910, become un- lawful, unless application is made to deviate from the prescribed rule. Colo- rado Coal Trafl^c Ass'n v. C. & S. Ry. Co., 19 I. C. C. 478, 479. (g) A higher rate to a shorter-distance point is justified by proving competition. Paragon Plaster Co. v. N. Y. C. & H. R. R. R. Co., 19 L C. C. 480. (gg) The rates referred to by defend- ant as being competitive are rates estab- lished by itself over one of its own branch lines, and are not rates established by a competing line; hence, they cannot be relied on for justification. Keich Mfg. Co. V. St. L. & S. F. R. R. Co., 15 I. C. C. 230, 231. (h) Where competition exists at the more distant point which controls the rate at that point the charging of a higher rate at an intermediate point is not necessarily in violation of tne third or fourth section of the Act. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 387. (i) No rate to an intermediate point can reasonably be higher than the sum of the terminal rate plus the local rate back. Monroe Progressive League v. St. L. I. M. & S. Ry. Co., 15 L C. C. 534, 536. (j) Whenever competition has com- pelled carriers to establish a lower rate to a more distant point than is given a non-competitive point intermediate it is practically the universal custom of car- riers to give the non-competitive point a rate equivalent to the combination upon the point to which competition is con- trolling. Hardenberg, Dolson & Gray v. N. P. Ry. Co., 14 L C. C. 579, 580. §8. Market Competition. See Equalization of Rates, §3 (mm); Evidence, §32. (a) Ocean competition, say the car- riers, brings about the lower rates from coast to coast; market competition pro- duces the lower rates from the interior to the coast. "Market competition" is a phrase with which the railroad traffic manager too often conjures. When no other force can be found which brihgs about a discrimination market competi- tion is advanced. It is both a sword and a shield; it is used to protect the car- rier against attack because of undue dis- crimination as between communities; and it is a weapon of offense as well, by which one carrier invades the territory of another upon a different basis from that wbich it grants to its own immedi- ately dependent community and forces concession from its rival carriers. Mar- ket competition is a euphemism for rail- road policy. The history of the fourth section makes clear that it was born out of a desire and has been amended out of the purpose to restrict the force and effect of market competition. The ex- amples cited before Congress by those who have advocated an absolute long- and-short-haul section have largely been 460 LONG AND SHORT HAULS, §9 (a)— (d) such as arose out of railroad policy, not such as were developed by transporta- tion competition. Congress, however, has not seen fit to say (and perhaps most wisely so) that this economic force shall not be allowed to have its play in the making of rates. Market competition must be considered as one of those cir- cumstances affecting a rate situation with which the Commission is called upon to deal. But may it not be said that while the language of the statute does not say that market competition shall not be al- lowed to justify the charging of the higher rate to the nearer point, the very spirit of the section makes against the free application of any such justifying principle? A national policy may veto a railroad policy, just as a public need may overcome and set aside a private desire. Experience* has demonstrated to the national legislature that it is not safe to leave to the carriers the determina- tion of the question what markets should be brought into competition with one an- other. The policy of Congress seems to be that a railroad may be compelled by transportation competition to make its rates lower than it otherwise would be- tween two competitive points, and that this will justify a breach of the prohibi- tion of the fourth section; but the desire of a number of snippers to reach a mar- ket is a force to which the carrier may not yield unless it can establish clearly that the adoption of such policy will not unfairly discriminate against one com munity and in favor of another, and will not produce those results which the law was intended to destroy. Clearly to al- low for market competition as a sole and controlling factor under the fourth sec- tion is to render it nugatory, for this would be tantamount to saying that a railroad could justify every discrimina- tion as between communities by the as- sertion of nothing more than its own de- termination of policy. Railroad Commis- sion of Nevada v. S. P. Co., 21 I. C. C. 329, 367. §9. Railroad Competition. * (a) Complainant shipped iron and steel rods, carload, Struthers, O., to Worcester and Palmer, Mass., under a rate of $3.40 per ton. The rate from Monessen, Pa., to the same points, a longer haul over the same line in the same direction, was $3 per ton. For rate- making purposes Monessen is in what is known as the Pittsburg, Pa., group, while Struthers is in the Youngstown, O., group. From the Pittsburg group the Pennsylvania R. R., which is the direct line, makes the rate to New York and Boston rate points and competing car- riers must meet its rate if they desire to participate in the business. The same situation does not exist at Youngstown. HELD, the conditions surrounding the ransportation of traffic from the Youngs- town district via the lines of defendants are substantially dissimilar from the con- ditions which pertain to the movement 3f traffic from the Pittsburg district, and the maintenance of a rate from Struthers higher than that from Monessen did not constitute a violation of the fourth sec- tion of the Act as it existed prior to June 18, 1910. Wright Wire Co. v. P. & L. E. R. R. Co., 21 I. C. C. 64. (b) Competition with the short line may justify a departure from the long- and-short-haul clause. Wright Wire Co. V. P. & L. E. R. R. Co., 21 I. C. C. 64. (c) Competition of carriers subject to the Act is a factor to be considered in passing upon an application for relief from the fourth section as amended in 1910. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 414. (d) Complainant alleged that a rate of 12c per 100 lbs. exacted for the trans- portation of four carloads of brick, Mouud Valley, Kan., to Tecumseh, Neb., was unreasonable so far as it exceeded a rate of 8c contemporaneously maintained from Mound Valley to Lincoln, Neb. Tecum- seh is 330 miles from Mound Valley and Lincoln 378 miles. The rate to Lincoln was subsequently canceled and a com- bination rate of lie put in. Attention was called to defendant's rate of IV2C to Omaha, Nebraska City and Platts- mouth. Neb. — all longer hauls than to Tecumseh — which rate was subsequently canceled, however, and the lie rate put in. The revenue per ton mile to Te- cumseh was 7.27 mills per ton mile, whereas the revenue per ton mile to the other points ranged as low as 3.85 mills per ton mile. It appeared competitive conditions with the M. P. Ry. existed at the other points. HELD, the main- tenance of a higher rate to Tecumseh was not a violation of the fourth section of the Act aS" interpreted by the courts previous to its recent amendment, and on the record the rate to Tecumseh could not be deemed unreasonable. Nebraska Material Co. v. C. B. & Q. R. R. Co., 20 I. C. C. 89, 90. LONG AND SHORT HAULS, §9 (e) — (k) 461 (e) A less distant junction point served by an additional road seems en- titled to a lower rate. Gamble-Robinson Commission Co. v. St. L. & S. F. R R. Co., 19 L C. C. 114, 115. (f) Complainant shipped anthracite coal from Pennsylvania fields to Holyoke, Mass. Damages were asked because of alleged violation of the long-and-short- haul clause in that the rate to Springfield, Mass., was 5c per 100 lbs. less than to Holyoke and intermediate points. Spring- field is serv?d by the B. & M.. N. Y. C, N. Y. N. H. & H. R. Rs., while Holyoke is reached by the B. <& M. and N. Y. C. R. Rs. The N. Y. N. H. & H. R. R. and connections reach ths Pennsylvania coal fields direct and make a joint rate to Springfield. The B. & M. R. R. reaches Springfield only through Troy and Rot- terdam Junction in connection with lines terminating at those points and this route is much longer than the direct line of the N. Y. N. H. & H. R. R. and con- nections. The B. & M. R. R. contended that if it is to participate in Springfield business it must meet this competition. HELD, the dissimilarity of conditions af- fecting this traffic at Springfield and Holyoke, respectively, which the Com- mission finds exists and which was ad- mitted by complainant's counsel at the oral argument, negatives the presump- tion of unreasonableness as to charges on Holyoke shipments by the B. & M. R. R. Fisk & Sons v. B. & M. R. R., 19 I. C. C. 299, 301. (g) Complainant attacked the rate of 20.5c per 100 lbs. on oak cross-ties, car- load, from Rockhouse, Ky., to Brockway- ville, Pa. Contention was made that this rate was unjustly discriminatory and in violation of section 4 of the Act, because of a rate of 19c from Roc'ihouse to Buf- falo and Salamanca. N. Y. The attacked rate was made up of a charge of 2c per 100 lbs. to Marrowbone, four miles; 6c Marrowbone to Huntington, 3 30 miles, and 12.5c Huntington to Brockwayville, 419 miles, a revenue for the entire haul of approximately 7 mills per ton mile. Buffalo and Salamanca are terminal rate points between Central Freight As- sociation and Trmk Line territory. HELD, that the maintenance of a higher rate from Rockhouse to Brockwayville than is contemporaneously maintained from Rockhouse to Buffalo and Salaman- ca was not at the time these shipments moved in violation of the fourth section of the Act, although I^rockwayville was an intermediate point, nor is either the rate of Gc per 100 lbs. from Marrowbone to Huntington, the rate of 2c per 100 lbs. from Rockhouse to Marrowbone, or the rate of 20.5c per 100 lbs. charged un- reasonable. Preston v. C. & O. Ry. Co., 19 I. C. C. 406. (h) Complainant attacked the rate of 19c on rice from Houston, Tex., to New Orleans, La., as compared with a rate of 15c from Clinton, Tex., to New Orleans. Clinton is about eight miles south of Houston and the traffic from Clinton passed through Houston to New Orleans. The 15c rate was extended only to rice coming by water to Clinton Irom certain plantations. The 15c rate from Clinton was made to meet the competition of a rail carrier making a 15c rate to New Orleans from a point near Clinton and to meet water competition, traffic being about to move from Clinton to New Or- leans entirely by water. HELD, the rate attacked was apparently not in violation of section 4 of the Act, on account of the dissimilarity of circumstances at Clinton and Houston; but that it was unlawful to extend the 15c rate from Clinton to rice coming from certain plantations and to deny this rate to other shippers. 3ayou City Rice Mills v. T. & N. O. R. R. Co., 18 I. C. C. 490, 492, 493. (i) While it is permissible to meet competition at a longer distant point, the intermediate rate should not be prej- udiced by an unreasonably low rate to the farther distant point. Kimberly v. C. & O. Ry. Co., 17 I. C. C. 335, 336. (j) The claim that the fourth section of the Act was violated in these ship- ments was not sustained, as the short line made the rate to the competitive point and defendants had to meet that condition. Foster Lumber Co. v. G. C. & S. F. Ry. Co., 17 I. C. C. 385, 386. (k) The rate on potatoes from East Virginia points to Charleston and Hunt- ington, W. Va., was 26c; to Hinton, W. Va., 321/^c. Hinton lay intermediate to said Virginia points and Charleston and Huntington, being 97 miles east of Charleston and 147 miles east of Hunt- ington. The only competition at Charles- ton and Huntington not applying to Hin- ton was over a long and circuitous route by the way of Pittsburgh. HELD, the 32i^c Hinton rate was unreasonable. Reparation awarded on the basis of 26c. Hinton Fruit & Produce Co. v. C. & O. Ry. Co., 17 L C. C. 578. 462 LONG AND SHORT HAULS, §9 (1)— (o) (1) Complainant attacked the rates of the Rock Island system from Chicago, Kansas City, St. Louis and Memphis to Santa Rosa, N. M., when compared with rates to El Paso and to Dog Canon and other points lying between Santa Rosa and El Paso. Santa Rosa lay interme- diate on defendants' system 272 miles northeast of El Paso. The rates to El Paso were lower than to Santa Rosa, the class rates from St. Louis, for ex- ample, exceeding the class rates from that point to El Paso by 36c, 27c, 17c, 12c and 14c for Classes 1, 2, 3, 4 and 5, re- spectively. The combination of the through rate to El Paso and the lower rate back to many intermediate points, including Vaughn, was less than the sum of the through rate to Santa Rosa and the local rate out to said points, thus giving El Paso jobbers an advantage at such points over complainant, who was a jobber at Santa Rosa. Defendants' rates to El Paso were made in compe- tition with several other carriers. El Paso being the gateway for traffic des- tined to Mexico. Santa Rosa was a non-competitive point. The Rock Island retained 75 per cent of the through rate to El Paso for its haul to Santa Rosa of traffic destined to El Paso, the other 25 per cent going to the connecting car- rier for its haul from Santa Rosa, and complainant contended that if 75 per cent of the lower through rates to El Paso yielded a profit to the defendant lines for hauling the through traffic as far as Santa Rosa, their higher through rates on traffic destined to Santa Rosa must of necessity yield them more than a reasonable profit. Santa Rosa is sit- uated in a sparsely settled and unpro- ductive country, and local traffic was very slight compared with the through traffic to El Paso. The rates from the points in question to points between Dog Canon, located on the Rock Island some 72 miles from El Paso, and El Paso were adjusted on a descending scale, all points taking rates lower than the Santa Rosa rates, but higher than the El Paso rates. HELD, that in view of the difference of competitive condi- tions at El Paso and Santa Rosa, the lower rates to El Paso were not in vio- lation of the long-and-short-haul section of the Act; and tnat the rates to Dog Canon and points lying intermediate to that city and El Paso were not unduly discriminatory against Santa Rosa, these points being properly grouped with El Paso. Moise Bros. Co. v C R I & P Ry. Co., 16 I. C. C. 550, 552, 553, 555. (m) Complainant, refining companv at Paola, Kan., attacked the rates of the M. K. & T. Ry. on petroleum oil from Paola, Kan., to Boonville, Mo., 138 miles and to Holden, Mo., 54 mile^, of 17c and 15c, respectively. This railway's line from Kansas City, Mo., to these desti- nations lies partly in Kansas and passes through Paola. Its rates from Kansas City to Boonville, 182 miles, and to Hol- den, 97 miles, through Paola, were re- spectively, 9.85c and 7c. The Standard Oil Co.'s refinery at Sugar Creek, Mo., was within the switching limits of Kan- sas City and took these rates of 9.85c and 7c with an additional switching charge of $4 per car. The M. P. Ry., in carrying traffic from Kansas City to Boonville and Holden, is wholly within the state of Missouri, and established these rates of 9.85c and 7c pursuant to the order of the Missouri Railroad Com- mission. The M. K. & T. Ry. was obliged, for competitive conditions, to meet these rates. The 17c and 15c rates from Paola complained of were in line with the rates from Coffeyville, Hum- boldt, Chanute, Erie and other refining points in the Southern Kansas oil fields. Under the adjustment of rates in ques- tion, the Standard Oil Co. had a monop- oly on the business at Boonville and Holden. The only evidence offered of the unreasonableness per se of the rates ^racked was the lower rates from Kan- sas City. HELD, on account of com- petition between defendant M. K. & T. Ry. and other carriers at Kansas City, the rates attacked were not in violation of the long-and-short-haul clause of sec- tion 4 of the Act, nor did they consti- tute undue discrimination under section 3; and that the rates attacked were not shown to be unreasonable per se, since the rates established by the state of Missouri could not be taken as con- clusive of the unreasonableness of the Interstate rates in question. Paola Re- fining Co. V. M. K. & T. Ry. Co., 15 I. C C. 29, 31, 32. (n) Competition with other carriers at a longer distance point may justify lower freight rates to that point than to neighboring shorter distance points not having the same competition Pilant v A. T. & S. F. Ry. Co., 15 L C. C. 178, 179." (o) On beer the rate from Milwau- kee. Wis., to Roswell, N. M., was 72c: LONG AND SHORT HAULS, §9 (p)— (r) 4«3 to El Paso, 60c. Defendant Santa Fe reached El Paso by two routes, only one of which ran through Roswell. Ship- ments from the point of origin in ques- tion to El Paso did not pass through Roswell. Roswell was a local point, whereas EI Paso was reached by sev- eral competing lines and was one of the three competing gateways for transpor- tation into Mexico to which carriers ex- tended the same rates. HELD, the rate to Roswell was not in violation of section 4 of the Act on account of the different conditions existing at El Paso. Pilant y. A. T. & S. F. Ry. Co., 15 I. C. C. 178, 179. (p) Bristol lies on the northeastern boundary of Tennessee, Johnson City lies southwest of Bristol and Morristown southwest of Johnson City in said state. Johnson City lies intermediate on de- fendant's line to the former two cities. Traffic from New York, Philadelphia, Baltimore and other eastern cities moved under defendant's rates through Johnson City and thence northeastward to Bris- tol, and through Johnson City, thence southwest to Morristown, at lower rates to Bristol and Morristown than to John- son City. Defendant's lower rates to Mor- ristown than to Johnson City on traffic passing through the latter city to the former were established at a time when defendant did not control the lines of railway running into Morristown, and were made to meet the competition of other carriers reaching Morristown from the points of origin in question, but the rates to Johnson City had all along been under the control of defendant. After acquiring the lines running into Morris- town, defendant left standing the old rate, which was lower than the rate to Johnson City. The rates on the haul from points of origin in question via Johnson City to Bristol were established by defendant and kept up by it to meet the competition of the short line road from points of origin to Bristol. HELD, the lower rate to Morristown than to Johnson City was no longer justified, competitive conditions having vanished; but that the lower rate to Bristol than to Johnson City for traffic hauled through Johnson City was justified on account of continuing competitive conditions at Bris- tol. Defendants ordered to adjust their rates on canned goods, cement, cotton, piece goods and their class rates accord- ingly. Gump V. B. & O. R. R. Co., 14 L C. C. 98, 104-106. (q) Complainant attacked the class rates from Chicago, St. Louis, Omaha and Denver to Pecos, Tex., as compared with rates to El Paso. Pecos is located 215 miles east of El Paso, at a junction of the Texas & Pacific and Pecos River railroads, the latter being subsidiary to the Santa Fe. The rates to Pecos from the points in question were considerably higher than to El Paso, although the Santa Fe reached both points. El Paso was reached by four railroads competing for business from the points of origin in question. El Paso rates had to he maintained with reference to competing Mexican gateways at Laredo and Eagle Pass. The higher rates to Pecos had been in effect for many years, and it was generally true that points inter- mediate to El Paso and the points of origin in question, and located from El Paso even greater distances than Pecos, took higher rates than El Paso. No evi- dence was offered to show the rates at- tacked unreasonable per se. HELD, that competition with other carriers at a longer distance point may justify lower rates to that point than the neighbor- ing shorter distance points not having the same competition, and that the rates attacked were not unduly discriminatory against Pecos. Pecos Mercantile Co. v. A. T. & S. F. Ry. Co., 13 1. C. C. 173, 177. (r) The class rates from Evansville, Ind., to New York were 78l^c, 68c, 52i^c, 361^0, nVzc and 26c on the first six classes, respectively, and from New York to Evansville 83c, 72c, 55c, 39c, 33c and 28c. From Owensboro and Henderson, Ky., to New York the rates were 86c, 74i^c, 57i^c, 41i^c, 341/^c and 29c. Complainant attacked the rates to and from Owensboro and Henderson as unreasonable per se and unjustly discriminatory in favor of Evansville. Complainant also attacked the adjustment of rates to points gen- erally in Central Freight Association and Trunk Line territory. Evansville is situated on the north branch of the Ohio River, 11 miles northwest of Hen- derson and 40 miles from Owensboro, the last mentioned two points being south of the river. The rates between Henderson and Central Freight Associ- ation territory were made by adding arbitraries to the Evansville rates. The rates charged for the 11-mile haul be- tween Henderson and Evansville were generally lower than the minimum rates 464 LONG AND SHORT HAULS, §9 (s) for similar distances in Central Freight Association territory, notwithstanding the movement between Henderson and Evansville necessitated crossing the Ohio River bridge. The same arbitraries applying between Evansville and Hen- derson were used in constructing rates between Owensboro and points in that territory. A large part of the traffic from New York and other eastern points to Owensboro and Henderson moved by rail and water via Norfolk, thence over de- fendant's line, running along the south bank of the Ohio River. Some 95 per cent of the traffic to Evansville was de- livered by carriers operating north of the Ohio River. The ton mile earnings on New York to Evansville, first-class rate, by the short line distance were 1.68c; on the New York to Owensboro, first-class rate, 1.84c; on the New York to Henderson, first-class rate, 1.8c. The first-class rate. New York to Atlanta, Ga., yielded 2.7c; the New York to Chatta- nooga, 2.48c; New York to Nashville, 1.82c; New York to Memphis, 1.7c. The ton mile revenue under the rates at- tacked was generally lower, also, than revenue on the rates in effect from Chi- cago to eastern points. The carriers more directly interested in the Evans- ville rates for the most part served the territory north of the river, where there was greater density of population and of traffic than in the territory south of the river. The carriers more directly interested in the rates to Owensboro and Henderson served the territory south of the river. For this reason the ad- justment of rates north of the river was lower than that south of the same, and the lower rates at Evansville were in part the result of this situation. On ac- count of denser traffic, and the greater number of carriers operating in north- ern territory, the competition for busi- ness at Evansville was keener than at other cities. The carriers in northern territory also built up a market compe- tition, under which each was compelled to establish such rates to points which it served as would enable them to com- pete with other points. Defendants serving Owensboro and Henderson passed through these cities in delivering trafllc from New York to Evansville. The lower rate which they made to Evansville was established to meet the competition of northern carriers directly serving Evansville. Owensboro and Hen- derson enjoyed advantages in rates, by reason of their proximity to Evansville, which were not enjoyed by other points along the lines of the carriers serving said former two cities. HELD, the rates attacked were not shown to be unreason- able per se, unjustly discriminatory be- tween the cities in question, or in viola- tion of the long-and-short-haul provision of section 4 of the Act. Railroad Com- mission of Kentucky v. L. & N. R. R. Co.. 13 I. C. C. 300, 307, 309. (s) Complainant jobbers in cotton- piece goods and knit goods at Wichita, Kan., were in competition with jobbers at Kansas City and attacked the rates of $1.36 and 93c from New York and eastern territory to W'chita and Kansas City, respectively, on cotton goods and the rate of $1.64i/2 and $1.38 to said points, respectively, on knit goods. Rates by tne all-rail route were made to these points by combination upon the Missis- sippi and Missouri rivers. The rate ou cotton-piece goods from New York to St. Louis was G5c, from St. Louis to Kan- sas City 35c, making a through rate of $1. Over the short-line distance from St. Louis to Wichita, south of Kansas City, a rate of 9Gc was in effect, which would make the rate $1.01 from New York to Wichita. The rate was, in fact, $1.5G. Over the ocean-rail route the transportation was by ocean from New York to some southern part, such as Norfolk or Savannah, and thence by rail to destination. The ocean and rail rate to St. Louis was 7c less than the all- rail, or 58c. To this was added 35c for the Kansas City rate, making the New York to Kansas City rate over such route 93c. By adding the St. Louis to Wichita rate of 96c to the 58c rate the ocean-and-rail rate from New York to Wichita would be $1.54. This was, in fact, $1.36, due to another route known as the "Gulf" route. Such route involved a carriage by water to Galveston, whence the traffic was carried to destination by rail. The Gulf route was the last to be established. Two of the defendants operating from Galveston through Wich- ita to Kansas City charged 93c on cot- ton-piece goods from New York to Kan- sas City and $1.36 to Wichita, although the added distance from Wichita to Kan- sas City was 225 miles. Complainant contended that this violated the long- and-short-haul provision of section 4 of the Act. If the rates from New York to St. Louis were reduced the complain- LONG AND SHORT HAULS, §9 (t) 465 ants would not be benefited, since that reduction would apply equally at Kan- sas City and Wichita, and the same was true of a reduction between St. Louis and Kansas City. A reduction from Kansas City to Wichita would not benefit complainants, since the Kansas City job- ber would be able to distribute his goods to retailers upon a rate proportionally less than before. The distance from New York to Wichita via Galveston is 3,000 miles, twice as great as thai to Kansas City, but of this 3,000 mles 2 300 is water. The actual cost of transporting cotton-piece goods from New York to Wichita via Galveston did not exceed that of carrying them from New York to Kansas City via the cheapest route. The all-rail haul to the latter point is 1,300 miles. The ocean- and-rail movement involved a rail car- riage of from 1,100 to 1,300 miles. Through the gulf port there was a rail carriage of about 850 miles. The rail carriers from Galveston to Wichita re- ceived 73c for the haul of 700 miles. The first-class rate on cotton-piece goods from Galveston to Wichita was $1.37. The Texas Commission first-class rate from Galveston to Fort Worth, 350 miles, was 80c. The first-class through rate from New York to Wichita was $1.97i/^. HELD, that the 93c rate on cotton-piece goods from New York to Kansas City via Wichita and Galveston was not in violation of section 4, as compared with the rate of $1.3G to Wichita, since the defendants involved in the haul were compelled to meet the 93c rate to Kansas City, established by other carriers, in order to participate in the business; that Wichita was, however, entitled to some recognition on account of her proximity to the Gulf ports, and the rates on cot- ton-piece goods should be reduced from $1.36 to $1.25 from New York to Wichita; but that the rates on knit goods should not be disturbed. Johnston & Larimer Dry Goods Co. v. A. T. & S. F. Ry. Co., 13 L C. C. 388, 396-400. (t) Complainant, wholesale grocer at Nashville, Tenn., attacked the rates from Pacific coast terminals to Nashville of 89c on canned goods, $1.16 on dried fruit in boxes and $1.36 on dried fruit in sacks, as compared with rates of 75c, $1.00 and $1.20, respectively, accorded to Milan, Humboldt and Jackson, in west- ern Tennessee, Cincinnati, O., Louisville, Owensboro, Elizabethtown, Henderson, Paducah and Hopkinsville, Ky., and Evansville, Ind. Said last-named rates applied alike to Missouri River and Mis- sissippi River common points and Cincin- nati-Detroit common points. This group rate was not applied generally to terri- tory east of the Mississippi River and south of the Ohio River because the car- riers serving this southeastern territory did not originate traffic destined to the Pacific coast and were unable, therefore, 'o make reciprocal arrangements on west- bound business. The rates from Pacific coast terminals to these southeastern common points were made up of the rates to th3 Mississippi River plus the locals from the crossing of the river nearest the point of destination, or of rates to the Cincinnati-Detroit territory plus the locals from the Ohio River crossing near- est the destination. Milan, Humboldt, Jackson, Elizabethtown, Hopkinsville and Nashville were not in the' Mississippi River territory or the Cincinnati-Detroit territory. The through cafload rate from the points of origin in question to any of the points takings a lower rate than Nash- ville plus the local carload rate from that point permitted a dealer thereat to get within thirty miles of Nashville, from either the north or the west, on an equality of rates with Nashville. On a combination of through carload rates in, and less-than-carload rates out, the rates from such points and from Nashville equalized at something over fifty miles either north or west from Nashville. Under the rates attacked, however, Nash- ville had an advantage in distributing goods to points much nearer to Decatur, Birmingham, Chattanooga and Atlanta than those points can get to Nashville. The traffic in question moved by the Texas Pacific and the Southern Pacific' R. Rs. via New Orleans. Defendants were compelled to meet in the haul to the Ohio River the rates fixed by the short line roads through St. Louis, Mo., and Cairo, 111., to the river. In making the haul de- fendant I. C. R. R. carried the traffic through Milan, Humboldt, Jackson, Nor- tonville and Elizabethtown, but not through Nashville. It adopted a policy In literal compliance with the fourth section of the Act and applied to inter- mediate points no higher rates than to farther distant basing points. When this traffic was carried to the Ohio River through Nashville it was hauled by tue L. & N. R. R., which had not adopted a policy similar to that of the I. C. R. R. The rate at Hopkinsville was ffxed by the I. C. R. R. and met by the L. & N. R. 466 LONG AND SHORT HAULS, §10 (a)— (aa) R., but they did not so compete at Nash- ville. HELD, Nashville not being entitled by its location to be included in the Mis- sissippi River or other groups, and com- petitive conditions applicable at the other points taking lower rates than Nashville not being influential at Nashville, that city was not unduly discriminated against and defendants were not violating the long-and-short-haul provision of sec- tion 4. Phillips-Trawick-James Co. v. S. P. Co., 13 I. C. C. 644, 647, 648. §10. Water Competition. See Discrimination, §8 (5) (k); Equalization of Rates, §4 (4) (aa); Evidence, §14 (5) (u). (a) Where a higher rate to an inter- mediate point is justified upon the ground of water competition, the Commission has certain rules for its guidance: 1. Is it true that the long-distance rate is forced by water competition? 2. Is the long-dis- tance rate which has been established in view of water competition less than would otherwise be reasonable? 3. Are the rates at the intermediate points rea- sonable? 4. Do the rates unduly prefer one locality to another? And relief from the fourth section may be granted be- cause of water competition. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 178. (aa) For the purpose of disposing of the Spokane case under the fourth sec- tion the Commission has divided the United States into five territorial zones, as follows: (The transcontinental groups hereinafter described are as specified in R. H. Countiss' (agent) transcontinental tariff I. C. C. No. 929.) Zone No. 1 com- prises all that portion of the United States lying west of a line called line No. 1, which extends in a general south- erly direction from a point immediately east of Grand Portage, Minn.; thence southwesterly along the northwestern shore of Lake Superior to a point im- mediately east of Superior, Wis.; thence southerly along the eastern boundary of transcontinental group F to the inter- section of the Arkansas and Oklahoma state line; thence along the west side of the Kansas City Southern Ry. to the Gulf of Mexico. Zone No. 2 embraces all territory in the United States lying east of line No. 1 and west of a line called line No. 2, which begins at the interna- tional boundary between the United States and Canada immediately west of Cockburn Island in Lake Huron, passes westerly through the Straits of Mack- inaw, southerly through Lake Michigan to its southern boundary; follows the west boundary of transcontinental group C to Paducah, Ky.; thence follows the east side of the Illinois Central R, R. to the southern boundary of transconti- nental group C; thence follows the east boundary of group C to the Gulf of Mex- ico. Zone No. 3 embraces all territory in the United States lying east of line No. 2 and north of the south boundary of transcontinental group C and west of line No. 3, which is the Buffalo-Pittsburg line from Buffalo, N. Y., to Wheeling, W. Va.; thence follows the Ohio River to Hunt- ington, W. Va. Zone No. 4 embraces all territory in the United States east of line No. 3 and north of the south boundary of transcontinental group C. Zone No. 5 embraces all territory south and east of transcontinental group C. From Zone No. 1 no higher charge can justly be made at any intermediate point than to a more distant point, and there is no justification for a system of rates which maintains from this territory a higher charge to any interior point than is made to the coast. From Zone No. 2 the rates to intermediate points may properly ex- ceed by not more than 7 per cent rates from the same points of origin to Pacific coast terminals. In Zone No. 3 the rates from points of origin to intermediate points may properly exceed those to terminal points by not more than 15 per cent. In Zone No. 4 rates from points of origin to intermediate points may properly exceed those to terminal points by not more than 25 per cent. In Zone No. 5 no opinion is expressed at this time, since rates from that territory are not involved in these proceedings. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 425, 426; order enjoined, in A. T. 6 S. F. Ry. Co. V. U. S., 191 Fed. 856, holding that the Commission by its or- ders respecting the relation of rates from eastern points to Spokane, Reno and other intermountain cities as compared with the rates to Pacific coast terminals estab- lished certain zones and entered orders which did not establish absolute rates for either the long or short haul, or pre- scribe the extent, in dollars and cents, that the short-haul rate might exceed the present or some definitely fixed long- haul rate, but established a relation be- tween any long-haul rate that the car- rier might put into effect and the short- haul rate by determining that from Zone 1 the western short-haul rate should not LONG AND SHORT HAULS, §10 (b)— (d) 467 exceed the long-haul rate, and from Zones 2, 3 and 4 the short-haul rate should not exceed the long-haul rate by more than 7 per cent, 15 per cent and 25 per cent, respectively, and, therefore, the Commis- sion exceeded its authority, since it has no power to say that any given percent- age of an unknown less than reasonable rate to the coast is necessarily a maxi- mum reasonable and non-discriminatory rate from the same point of origin to an interior point. (b) Spokane is a great distributing center and aims to be a greater one. It demands the right to rates which will enable it to bring from the east and dis- tribute into territory lying east of the Cascade range. Such traffic, when dis- tributed from Spokane, is hauled a less distance by 400 miles than when dis- tributed from Seattle, and the distribu- tion haul itself is also much less ex- pensive. It is a manifest economic waste to haul traffic over the Cascade Moun- tains and back again. The interest of the carrier and the public as much re- quire that this business should stop at Spokane, instead of going on to Seattle, as that it should originate in the middle west instead of upon the Atlantic sea- board. Spokane insists that if these de- fendants give to Seattle the right to buy in both New York and Chicago, when its location entitles it to buy in New York alone, they should give to Spokane, which is nearer by 400 miles, the right to buy in both New York and Chicago. New York urges that if Chicago is given an opportunity to sell in Seattle then New York shall be given the opportunity to sell in Spokane. In other words, the same blanket rate which is applied on the east should be applied upon the west. The carriers insist that they may determine as a matter of policy whether they will meet this water competition and in what manner and at what points; and this is true so far as that is a mat- ter of policy. To a disinterested ob- server it would seem to be in the true interest of these transcontinental lines, which begin at the Missouri River, to make rates which would build up interior points as against the coast. The haul to these points is shorter and less ex- pensive. The distribution from these points is easier, but, above all, the traf- fic which is created at such a point be- longs to the rail line which creates it, while the traffic which is fostered upon the coast is the prey of every vessel which sails the sea. Carriers in the future will doubtless adopt this method and will voluntarily make rates to inte- rior points like Spokane which will en- able those localities to compete with coast cities. Admitting, however, that it is for those defendants to say to what extent, if at all, they will meet these competitive conditions, they are not at liberty in meeting them to adopt such a policy, nor to execute the policy adopted in such a manner as to unjustly discrim- inate between different localities. They may, perhaps, determine whether they will apply the coast rate which is fixed by water competition at the interior point, but if they apply it at one point they must apply it at others which are sim- ilarly situated; they cannot, in the ab- sence of some sufficient reason, give Chicago that rate and refuse it to St. Louis and Kansas City. They cannot so adjust their whole tariff scheme, upon the plea of water competition, as to con- centrate in these coast cities commercial and transportation advantages to which their mere location does not entitle them, and that in substance is the ef- fect of the present rate adjustment. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 423, 424. (c) Considering the question broadly with reference to the situation in the Spokane case in all its aspects, it cannot be said that the legitimate effect of water competition upon the Atlantic sea- board may not be to reduce the rail rate from interior points. City of Spokane v. N. P. Ry. Co., 21 I. C. C. 400, 423. (d) In the Reno case the carriers in- volved have not shown that undue dis- crimination was not effected by their rate adjustment between points in Ne- vada and points in California, nor have they established that the rates to the coast cities if extended by them from eastern points outside the zone of water Infiuence are not fully compensatory. The Commission, however, desires to be extremely conservative in this, the first application of the new law, and to require an adjustment of rates that will be safely within the zone of its discretion. For this reason it has decided that the transcontinental carriers serving Reno and other points upon the main line of the Central Pacific R. R. shall make no higher charge upon any article carrying a commodity rate than is contempora- neously in effect from Missouri River points, such as Omaha and Kansas City, LONG AND SHORT HAULS, §10 (e) — (f) to coast terminal points. This principle should also be applied on commodity rates to all main-line intermediate points in Nevada and California. Traffic originat- ing at Chicago and in Chicago territory moving under commodity rates may have a rate 7 per cent higher than that imposed on freight originating in Chi- cago and Chicago territory, and destined to the coast terminals. From Buffalo- Pittsburg territory the rates to intermedi- ate points may rise above those de- manded and charged from the same points and territory to the coast termin- als to the extent of 15 per cent, while from New York and trunk line territory the rates charged shall not exceed 25 per cent over and above terminal rates. This means that Suisun, Auburn, Truckee. Reno and Elko, for instance, points inter- mediate to San Francisco from the east, shall have at least the benefit of the commodity rates extended from the Mis- souri River to Sacramento and San Fran- cisco, and shall pay no more than 7 per cent above the Chicago-coast terminal rates, and corresponding increases of 15 and 25 per cent, respectively, from Pitts- burg and New York territories. Some of the petitions under the fourth section which have been considered are made by carriers reaching California terminals through the southern gateways, southern Nevada and Arizona. These applications are also denied in so far as they in- volve the imposition of higher rates upon intermediate points than are applied on commodities from the Missouri River to Los Angeles, San Francisco or other coast terminals. To all such intermedi- ate points (Ash Fork, Maricopa, San Bernardino, Bakersfield, Fresno and Ven- tura, for instance) terminal rates shall not be exceeded as from Missouri River points, with the same proportionate ad- vances east of the Missouri River as heretofore specified. Railroad Commis- sion of Nevada v. S. P. Co., 21 I. C. C. 329, 369; order enjoined, in A. T. & S. F. Ry. Co. V. U. S., 191 Fed. 856, holding that the Commission by its orders re- specting the relation of rates from east- ern points to Spokane, Reno and other in- termountain cities as compared with the rates to Pacific coast terminals estab- lished certain zones and entered orders which did not establish absolute rates for either the long or short haul, or pre- scribe the extent, in dollars and cents, that the short-haul rate might exceed the present or some definitely fixed long- haul rate, but established a relation be- tween any long-haul rate that the car- rier might put into effect and the short- haul rate by determining that from Zone 1 the western short-haul rate should not exceed the long-haul rate, and from Zones 2, 3 and 4 the short-haul rate should not exceed the long-haul rate by more than 7 per cent, 15 per cent and 25 per cent, respectively, and, therefore, the Commission exceeded its authority, since it has no power to say that any given percentage of an unknown less than rea- sonable rate to the coast is necessarily a maximum reasonable and non-discrim- inatory rate from the same point of origin to an interior point. (e) It is no reflection upon the traf- fic manager of a railroad to say that he bases his rates upon some line of policy. He deals directly and in most cases ex- clusively with the producer or the jobber. His concern is to keep these patrons satisfied and at the same time bring to his railroad the greatest possible rev- enue. This is what he means by saying that he charges what the trafl^c will bear. He regards as reasonable what- 3ver rate will make for the best interest for his road, and in determining this he adopts a line of policy which affects either favorably or unfavorably the in- dustrial growth of the communities which the carrier serves. The restric- tions of the Act are governmental limita- tions placed upon the unlimited and ar- bitrary discretion of traffic officials. While the latter may adopt policies which they regard as most favorable to their roads, such policies must be restricted by the inhibitions of the law which this Commission must enforce. The policy of making Reno rates base upon those extended to the more distant Pacific terminal points may not be justified upon the ground that Reno traffic will bear that imposition, but may be justified by conditions obtaining at the more distant point, which the carrier may meet with- out offense to any provision of the Act. It is not sufficient to state that the ter- minal points are situated on the water to excuse the imposition of high rates at intermediate points. Railroad Com- mission of Nevada v. S. P. Co., 19 I. C. C. 238, 249, 250. (f) The present commodity rates charged by the Great Northern and the Northern Pacific R. Rs. from eastern ter- ritory to Spokane are unreasonable, and just and reasonable rates which ought not to be exceeded for the future would LONG AND SHORT HAULS, §10 (g)_(m) 469 be those which are set forth in Schedule A, attached. In fixing these rates the Commission has proceeded upon the view that under the present decisions cf the Supreme Court of the United States it could not use the rate to Seattle r.s a standard by which to measure that to Spokane. If this were otherwise, if it were free to take into account all the competitive conditions existing both east and west, and to determine what, in the light of all these conditions, would be a just and reasonable relation between the rates of Seattle and Spokane, a some- what different question would be pre- sented. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 174. (g) Where an inherently reasonable rata is established by the Commission to Srokane, a higher rate to an intermedi- ste point cannot be permitted. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 169. (h) The mere statement that terminal roints are situated on the water is not sufficient to excuse higher rates at in- trrmediate points. R. R. Commission of Nev. V. S. P. Co., 19 I. C. C. 238, 250. (i) The city of San Pedro is situated en San Pedro Bay about twenty two miles distant from Los Angeles, which is inland. Los Angeles takes Pacific coast terminal rates, as does San Diego, which is about 125 miles south of San Pedro bay on the coast. Tonnage mov- ing by water that could not be unloaded at San Diego for any reason could move through the harbor at San Pedro, and this creates a potential competition at San Pedro. Through shipments from the east to San Pedro pay the terminal rates to Los Angeles plus the local rates to San Pedro. HELD, that a rate adjust- ment that deprives San Pedro of the benefit of its own geographical situation, while according the benefit of it to Los Angeles, constitutes a discrimination aeainst San Pedro that i^ undue and un- just, and, therefore, unlawful. To recog nize to any extent in the rates to Los Angeles cither the actual or the potential competition through San Pedro, without riving recognition to such competition in the rates to San Pedro itself, is a dis- criminatory and unlawful adjustment. If such competition is recognized in the Los Angeles rates there is no justice in obscuring it in the San Pedro rates. When one community leans upon an- other for its competitive rates, the benefit Df such rates ought not to be denied to :he point that creates the competitive ondition. Harbor City Wholesale Co. V. S. P. Co., 19 I. C. C. 323, 331. (j) The existence cf competition at I farther distant point does not excuse che unreasonableness per se of the higher rate. Southern Timber & Land Co. V. S. P. Co., 18 I. C. C. 232. (k) Water competition creates prima acie dissimilarity of conditions justifying 1 violation of the fourth section. Bayou City Rice Mills v. T. & N. O. R. R. Co., 18 i. C. C. 490, 492. (1) A carrier may make low rates to points for the purpose of meeting water competition at those points, and may make somewhat higher rates to inter- mediate points at which the same com- petition does not exist, but obviously its higher rate to such intermediate point cannot reasonably exceed its rate to the competitive point plus its local rate back from that point to the intermediate ooint. Valley Flour Mills v. A. T. & S. F. Ry. Co • 16 I. C. C. 73, 78. (m) The Commission established class and commodity rates from St. Paul and Chicago to Spokane, the order being directed against the U. P., the N. P. and G. N. R. Rs. The U. P. R. R. filed a peti- tion asking to be relieved from the order, first, on the ground it had no direct line leading from St. Paul to Omaha and, second, the distance from St. Paul and Chicago via its line was much greater than via the N. P. R. R. and G. N. R. R. and, therefore, while the rates fixed might be just and reasonable for the shorter distance over the Hill lines, they were unjust over the U. P. R, R. In establishing the rates in question the Commission took into consideration, as an important factor, the difference in dis- tances to Seattle and to Spokane, and the difference in distances from Chicago and St. Paul to those points. Via the U. P. R. R. the distance from Chicago to Spokane was 2,300 miles; via the other lines, 1,900 miles. HELD, the order should be modified, excepting the U. P. R. R., as to St. Paul traffic, and that the effective date of the order should be postponed until a readjustment of rates might be made by the carriers, under which the carriers must take care to protect the cities of Pendleton, Baker City, Walla Walla, etc., which were far- ther than Spokane on the N. P. R. R. and 470 LONG AND SHORT HAULS, §10 (n)— (s) nearer to Spokane on the U. P. R. R., and might suffer if the U. P. R. R. should be relieved from establishing the rate ordered to Spokane. Spokane v. N. P. Ry. Co., 16 I. C. C. 179. (n) The rate to San Francisco is made under circumstances of water com- petition, and therefore may be lower than to intermediate points where such competition does not exist. Rogers v. O. R. R. & N. Co., 16 L C. C. 424, 425. (o) On a carload of household goods from Spokane to Medford, Ore., com- plainant was charged $1.11 per 100 lbs., made up of 55c from Spokane to Port- land and 56c from Portland to Medford. Medford lay intermediate to Spokane and San Francisco, and the rate between the two latter points was 71c, resulting from water competition. HELD, the rate at- tacked was not unreasonable. Repara- tion denied. Rogers v. Ore. R. R. & N. Co., 16 I. C. C. 424, 425. (p) Carriers may, for the purpose of meeting water competition, make rates lower than would otherwise • be justifi- able, even to the extent of charging a less rate to the more distant point. Darling & Co. v. B. & O. R. R. Co., 15 L C. C. 79, 87. (q) A through rate on cross-ties to a longer distance point, less than the combination to an intermediate point, may be justified by water competition. MacGillis & Gibbs Co. v. C. M. & St. P. Ry. Co., 15 L C. C. 329. (r) On a carload of cross-ties from Sault Ste. Marie, Mich., to Thiensville, Wis., a rate of 20c was exacted, made up of 9c to Champion and lie from Cham- pion to destination. A joint through rate of 13c was in effect over defend- ants' lines from the point of origin to Milwaukee, Chicago and points inter- mediate to said latter two cities. Thiens- ville is 17 miles north of Milwaukee and intermediate to said city and Sault Ste. Marie. The rate to Milwaukee was in- fluenced by water competition. The local rate from Milwaukee to Thiensville was 3c, making the combination on Milwau- kee 16c. HELD, the rate exacted was excessive to the extent that it exceeded 16c, but Thiensville was not entitled to the 13c Milwaukee rate, nor was the exaction of the higher rate in violation of section 4 of the Act. Reparation awarded. MacGillis & Gibbs Co. v. C. M. & St. P. Ry. Co., 15 L C. C. 329, 330. (s) Complainant interests at Spokane attacked the rates from Chicago and St Paul, as typical points, to Spokane as unjustly discriminatory in favor of Seat- tle, as a typical coast point, compared with the rates from Chicago and St. Paul to Seattle. The traffic to Seattle over defendants, G. N. and N. P. R. Rs., passed through Spokane, which is some 400 miles east of Seattle. The class rates from St. Paul to Seattle and Spokane were practically the same; from Chicago to Spokane the rates were materially higher than to Seattle. The commodity rates under which most of the traffic moved were usually higher to Spokane from St. Paul than to Seattle, the Spo- kane rate being, in a majority of cases, higher than that to Seattle by about 70 per cent of the local rate from Seattle to Spokane. From all shipping points east of the Missouri River the rates to Seattle were the same, whereas the rates from said points to Spokane were in- creased according to the distance of the point of origin eastward; i. e., the com- modity rates were higher to Spokane from Chicago than from St. Paul, and higher from New York than from Chi- cago, thereby restricting Spokane job- bers to the eastern markets from which they could purchase. Water competition existed between eastern ports and Seat- tle via ocean steamships, and the Pana- ma Railroad by means of ocean tramp vessels, of ocean steamships plying via Cape Horn and via the Straits of Magel- lan, and by means of ocean steamships from New York to Mexico, and thence across to the Pacific Ocean, by rail and thence by vessel to destination. By some ocean lines the per annum tonnage amounted to as high as 250,000 tons, and the carriage from the Atlantic to the Pa- cific coast was accomplished in from 25 to 40 days. Water competition influenced the rates from eastern interior points, the goods being shipped from said points to New York and thence by water to the Pacific coast. The rates to Seattle from Chicago were made the same as from New York in order to enable the Chicago manufacturer to compete with New York and also to develop Chicago as a manufacturing center in order to give the carriers, which must meet the New York to Seattle water rate, the ben- efit of the shorter distance haul from Chicago to Seattle as compared with that from New York to Seattle. HELD, on account of water competition, the higher LONG AND SHORT HAULS, §10 (t)— (v) 471 rates to Spokane than those on traffic to Seattle, hauled through Spokane, were not in violation of section 4 of the Act. Spokane v. N. P. Ry. Co., 15 L C. C. 376, 388. (t) Water competition at the Pacific coast on transcontinental traflSc creates a dissimilarity of circumstances and con- ditions between the interior and the coast. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376. (u) On shipments of various com- modities to Seattle from eastern points of origin better minima were accorded than upon similar shipments to Spokane and, as to cotton fabrics, the right to mix carloads was accorded to Seattle and denied to Spokane. HELD, the existence of water competition justified said dif- ference in minima and in the privilege of mixing carloads exactly, as it jus- tified a lower rate to Seattle. Spokane V. N. P. Ry. Co., 15 I. C. C. 376, 389. (v) The class rates from St. Paul and Chicago to Seattle were substan- tially the same, first class being $3; from St. Paul and Chicago to Spokane they were higher from Chicago, the rat-e from St. Paul being $3 and from Chi- cago $3.60. From New York, class rates were the same to Seattle as from Chi- cago and St. Paul, but were materially higher to Spokane than the St. Paul and Chicago to Spokane rates. The commodity rates from said points of origin were generally higher to Spokane than to Seattle by about 70 per cent of the local rate from Seattle to Spokane. As a re- sult of such rates the Spokane jobber was obliged to pay a higher rate upon practically everything from the Missouri River, or east, and was restricted in the markets in which he could buy, for while Seattle could purchase at all points of origin east of the Missouri River at th»3 sames rates, Spokane was unable to do so, since the rates increased to Spokane according to the distance from the east- ern point of origin. Over a territory of about 100 miles to the east and to the south, however, Spokane was given lower rates than any other jobbing center and was able to dominate the sales to deal- ers in said territory. The N. P. and the G. N. R. Rs. were the carriers chiefly concerned in the controversy. The cost of reproduction of the N. P. R. R. was some $325,000,000 for a mileage of some 5,810 miles, or about $56,000 per mile. As to its original cost of construction, no reliable figures were presented. Its cap- italization was about $342,000,000, or $57,- 800 per mile. From 1898 to 1907 said defendant earned over and above all fixed charges, taxes and other expenses, in addition to the payment of a dividend for every year except the first, some $55,- 000,000. During the last six years of that period it earned, in addition to the payment of its taxes and fixed charges, from 10 to 15 per cent upon its capital- stock of $155,000,000. No accurate esti- mate of the cost of reproduction of the G. N. R. R. was submitted, but the same ranged somewhere between $335,000,000 and $415,000,000. No reliable statement was furnished of its original cost of construction. Its capitalization was some •^ 000,000. From 1891 to 1907 said de- fendant accumulated, in addition to fixed charges, taxes and a dividend of 7 per cent paid upon many millions of stock issued without any money consideration, some $61,000,000. During the last six years of said period it earned upon the par value of its capital stock from 10 to 15 per cent. The coal lands owned by defendant N. P. R. R. were leased to an independent company, which oper- ated the same at a handsome profit, and their value, therefore, was not included by the Commission in determining the amount upon which an income might be properly demanded by said carrier. The ore properties of the defendant G. N. R. R. were transferred to an outside com- pany and an ore certificate was given free to each holder of a share of stock, which certificate entitled him to a propor- tionate share of the income derived from said ore leases. New issues of stock were at various times distributed by the G. N. R. R. to stockholders at par when the market value of such stock ranged from $140 to $264 per share. Some $30,- 000,000 of its stock was issued without any money consideration. The stock of the N. P. R. R. was originally sold at from $10 to $15 per share. In arriving at the cost of reproduction of the N. P. R. R. the value of the land was placed at $107,000,000, or about one-third of said cost. Most of the right-of-way was orig- inally acquired by gift. To apply to Spokane the rates to Seattle would taken in connection with the losses incident to the consequent adjustment of rates in intermediate territory, result in a loss of some $645,000 a year to the G. N. R. R. and some $1,197,000 to the 472 LONG AND SHORT HAULS, §10 (w)— (cc) N. P. R. R. In recent years the density of traffic and prosperity of these carriers were as great as that of the most pros- perous road connecting Chicago and New York, Complainant urged that commod- ity rates, which paid the cost of the movement from New York to Seattle, a distance of 3,200 miles, through St. Paul and Spokane, must yield a reasonable profit when applied as a local rate for the 1,500 miles of that haul between St. Paul and Spokane. In applying the Chi- cago to Seattle rates as locals between St. Paul and Spokane the per ton mile revenue would equal or exceed that under the rates which defendants had volun- tarily established upon fruits, vegetables and other products from the Pacific coast to the Bast and would be fairly in line with that derived upon similar commod- ities for corresponding distances in vari- ous parts of the United States. HELD, that the class rates attacked from St. Paul to Spokane were unreasonable and should be reduced so as to be 16 2-3 per cent below the Seattle rate; that Chi- cago to Spokane class rates might prop- erly be higher than those from St. Paul by arbitraries of 50c, 42c, 33c, 21c and 17c for the first five classes, respectively; that the Chicago to Seattle commodity rates should, with certain exceptions, be applied from St. Paul to Spokane, and that commodity rates from Chicago to Spokane should be made by adding 16 2-3 per cent to the new St. Paul to Spokane commodity rates. Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 421, 425. (w) Transcontinental rates are lower from the Missouri River and east to Pa- cific coast than to intermediate interior points. HELD, that this has been forced by water competition between the At- lantic and Pacific coasts. Spokane v. N. P. Ry. Co., 15 I. C. C. 376. (xy) Where rates are fixed at certain terminal points by water competition a general custom has obtained of making rates to intermediate points upon the combination of the competitive rates to the terminal rate plus the local rate back. The reasonableness of a rate so con- structed necessarily depends largely upon the reasonableness of the local rate, which is added to the terminal rate, and, obviously, no rate to an intermediate point constructed under those conditions, and on that principle, can reasonably be higher than the sum of the terminal rate plus the local rate back. Monroe Pro- gressive League v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 534, 536. (z) Competition may be eliminated by low rail rates, but any increase in rail rates sufficient to induce the establish- ment of additional lines would transform the diminished, but strongly potential, steamer lines into active water compe- tition, which, once established, must continue. Monroe Progressive League v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 534, 539. (aa) Controlling competition, espe- cially water carriers, such as exists at New Orleans, Natchez and Vicksburg, justifies lower rates to those points than to intermediate points where the same competition does not exist and control. Monroe Progressive League v. St. L. 1. M. & S. Ry. Co., 15 I. C. C. 534, 536. (bb) Rates from St. Louis to New Orleans and other Mississippi River points are controlled by water compe- tition, and therefore the fact that such rates are lower than from said points of origin to Monroe, La., does not unjustly discriminate against Monroe. Monroe Progressive League v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 534. (cc) Monroe, La., is located at the crossing of the Iron Mountain's line and the Vicksburg, Shreveport & Pa- cific line running in connection with the Alabama & Vicksburg Ry., from Vicksburg to Shreveport, and lies upon the Ouachita River, 75, 120 and 216 miles west of Vicksburg, Jackson and Meridian, respectively; 96 miles east of Shreveport, 292 miles northwesterly from New Orleans, 98 miles north of Alexandria, 95 miles northwest of Nat- chez and 152 miles south of Pine Bluff. Complainant attacked, as unreasonable and discriminatory, all rates in general from St. Louis to Monroe on traffic coming from defined territories north, northwest and north of St. Louis. Com- plainant attacked the rate adjustment under which traffic moved from St. Louis to New Orleans at lower rates than from St. Louis to Monroe and under which the rates from St. Louis to Jackson and Meridian, Miss., were lower than from St. Louis to Monroe. The class rates from Vicksburg to Monroe were attacked as discriminatory and unreasonable per se. Complainant also alleged discrimination in that Monroe was governed by the Western Classi- LONG AND SHORT HAULS, §11 (dd) 473 fication, while traffic from St. Louis and other points to New Orleans, Vicks- burg, Meridian and Natchez was gov- erned by the Southern Classification. The rate from St. Louis to New Orleans was originally established by river car- riers and the same rate was extended by the river carriers to Vicksburg and Natchez. The railroads were compelled by competition to establish the same rates to these points. As a result of this water competition, the rates to these points were low. In many in- stances the rates to Monroe from St. Louis were in excess of the sums of the terminal rates to Vicksburg and the local rates from Vicksburg to Mon- roe. The Iron Mountain R. R. joined in the transportation of traffic from St. Louis to Vicksburg via Monroe in com- petition with rail lines reaching Vicks- burg from the east side of the INIissis- sippi River. The class rates complained of from Vicksburg to Monroe were 60, 50, 40, 30 and 22c for the first five classes, respectively. Vicksburg is 75 miles from Monroe, Shreveport 96 miles west of Monroe and Alexandria 98 miles south of Monro-e, but for many years Monroe, Alexandria and Shreve- port had been grouped together and had taken the same rates. The 60c scale applied from New Orleans to Alex- andria, 194 miles; New Orleans to Shreveport, 335 miles; New Orleans to Monroe, 292 miles; Vicksburg to Shreve- port, 171 miles, and Vicksburg to Alex- andria, 173 miles, so that these places were put on an equal footing as to rates from New Orleans and Vicksburg. The direct rate from St. Louis to Mon- roe was $1.17, first class, whereas the combination on Vicksburg was $1.50. Consequently, if complainant's request that the Vicksburg-Monroe rates be re- duced one-half were granted, the com- bination on Vicksburg would be $1.20 and Monroe would suffer since Vicks- burg could sell in Monroe itself at a disadvantage of only 3c. The rates in Question to Monroe were first fixed by the river carriers and met by the rail- roads, and Monroe was enjoying, there- fore, the benefit due it from water com- petition. Complainant contended that Monroe, being less distant from St. Louis, New Orleans or Vicksburg than was Shreveport, was entitled to lower rates than Shreveport. Monroe is near- er to Vicksburg than these other places are, but aside from that the difference in distance is insignificant in view of the 500-mile haul involved. Water com- petition at Vicksburg, though not active, was potential. Jackson was given a low rate from St. Louis on account of its proximity to Vicksburg. Meridian was given the Jackson rate by a carrier not reaching Jackson and in competition with the carrier serving Jackson. The rates from St. Louis to Jackson and Meridian were, for these reasons, lower than to Monroe, being 90c, first class, to Vicksburg; 98c to Jackson and Meridian, and $1.17 to Monroe. To divorce Monroe from the Shreveport group, would es- tablish discrimination against Shreve- port and Alexandria. The rates to Monroe and the Shreveport group were as low, on the whole, as the rates to any other jobbing point in Louisiana, except the Mississippi River points. HELD, the rates attacked were not shown to be unreasonable or unduly discriminatory as compared with the rates from St. Louis to Vicksburg, Natchez, Jackson, Meridian and New Orleans in view of the difference in competitive conditions; that the class rates from Vicksburg to Monroe were not shown to be discriminatory or un- reasonable per se; that there was no occasion for excepting Monroe from the Western Classification or from the Shreve- port group; but that the defendants should not maintain from St. Louis to Monroe a rate in excess of the rate from St. Louis to Vicksburg or New Orleans, plus the local rate from Vicks- burg or New Orleans to Monroe. Mon- roe Progressive League v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 534, 537, 538, 541, 542. (dd) The rate on coal from Jellico mines, Tenn., to Augusta, Ga., was $2.20 and to Charleston, S. C, $1.90. Complainant dealer at Augusta attacked the rate as unreasonable and unjustly discriminatory in favor of Charleston. The Jellico coal passed through Au- gusta to Charleston in some instances but for the most part was carried via the Southern Railway to Charleston without passing to Augusta. The Jel- lico coal, being a high-grade domes- tic, competed at Charleston with anthra- cite, water-borne from Virginia points, and the lower rate to Charleston was in part due to competition. The rates from Alabama coal fields to Charleston were on an average about $1.95; from Alabama fields to Charleston and Au- 474 LONG AND SHORT HAULS, §10 (ee)— §11 (e) gusta they were generally the same. The distances from the Alabama fields and from the Jellico district to Augusta are approximately the same. The Ala- bama product being a steam coal d.d not compete with the Jellico. The transportation frrn the Jellico fields to Augusta involved heavy grades, whereas such physical conditions did not exist from the Alabama fields to Augusta. The rates from the Alabama fields into Augusta were the result of keen competiti( n between carriers serv- ing different districts. No coal from any of these districts competed in the Augusta market to the disadvantage of any dealer in Je-'ico coal. The rate attacked yielded 5.5 mills per ton mile. The average rate per ton mile from various Southern Railway groups to Augusta was 5.4 mills; from all dis- tricts served by the different carriers to Augusta, 5 mills. The average rate per ton mile on coal on the entire system of the Southern Railway was 4.37 mills. HELD, the rate attacked was not unjustly discriminatory in favor of Charleston or in violation of section 4 of the Act; and that the rate was not unreasonable per se. Rice v. Georgia R. R. Co., 14 I. C. C. 75, 77, 78. (ee) On a carload of tanks and sub- structures from Kendallville, Ind., to Gallatin, Tenn., complainant was as- sessed 46c, made up of the 16c rate from Kendallville to Louisville and the local rate from Louisville to Gallatin of 30c. The rate from Louisville to Nashville was 15c. Gallatin is an in- termediate point between Louisville and Nashville. The 15c rate from Louisville to Nashville was forced by water com- petition which was not operative with respect to Gallatin. HELD, in view of the competition the rate charged could not be held to be in violation of sec- tion 4 of the Act. Flint & Walling Mfg. Co. V. G. R. & I. Ry. Co., 14 1. C. C. 520, 521. V. PROCEDURE. See Courts, §11 (v) ; Undercharges, §3 (d). §11. Complaints and Orders. See Procedure Before Commission, M, §2 (c). (a) The Chamber of Commerce of a city Is a proper party to be heard upon the application of carriers to be re- lieved from the operation of the fourth section in fixing rates to such city. Grand Junction Chamber of Commerce V. D. & R. G. R. R. Co., 23 L C. C. 115, 117. (b) The statute does not in terms define the proceeding in which the Com- mission may inquire into alleged vio- lations of the fourth section of the Act and grant the relief as specified in the proviso, but it is clear that any order which the Commission makes in that respect must be at all times sub- ject to modification by it, and it seems equally clear that when complaint is made of a violation of the fourth sec- tion the Commission may. by order in that proceeding, grant appropriate re- lief against any violation of the Act which is found to exist, including a viola- tion of the fourth section, nor is it signifl- jant that the complaint was pending at the time of the amendment of the section. It should also be noted that this is not a new and additional authority, but is simply the exercise of the jurisdiction provided for in the fifteenth section for the correction of unjust discrimination. There is no essential difference be- tween this order and an order which the Commission might make under the third section. City of Spokane v. N. P. Ry. Co., 21 L C. C. 400, 426. (c) Where the rates of carriers are not in unlawful violation of the pro- visions of section 4 of the Act, it is not the practice of the Commission to enter an order fixing an absolute rate for the shorter haul, but only to re- quire the carriers guilty of the violation to cease and desist from charging a higher rate for the shorter than for the longer haul, and it is, therefore, neces- sary that connecting carriers joining in the rates attacked should be made parties. Moise Brothers Co. v. C. R. L & P. Ry. Co., 16 L C. C. 550, 55L (d) A carrier which is party to a through rate to a longer distance point should be made a party to a complaint alleging a violation of section 4. Moise Bros. Co. V. C. R. L & P. Co., 16 I. C C. 550, 552. (e) Ordinarily orders are intended only to correct the unlawful relation of rates and give the carriers concerned the option either of increasing the rates for the longer haul or reducing the rate for the shorter haul. Moise Bros. Co. v. C. R. L & P. Ry. Co., 16 L C. C. 550, 552. LONG AND SHORT HAULS, §12 (1) (a)— §12 (2) (e) 475 §12. Evidence. See Reasonableness of Rates, §2 (d), §28 (e). §12. (1) Burden of Proof. See Evidence, I. (a) Defendants serving the Kansas salt field sought permission from the Commission to enable them to charge higher rates from there to some points west of the Mississippi than to the river crossings. Defendants practically failed to submit any evidence. HELD, the Com- mission could not on the record find that the rates to the river crossings were un- reasonably low or that the rates to inter- mediate points were reasonable and de- fendants had failed to justify the de- parture from the mandate of section 4 of the Act; but that defendants might re- open the question for further investiga- tion. R. R. Commissioners of Kansas v. A. T. & S. F. Ry. Co., 22 L C. C. 407, 419. (aa) Under section 4 of the Act the burden rests upon the carrier to justify a rate from an intermediate point that is higher than the rate from a more dis- tant point when the shipments move over the same rails and in the same direc- tion. Carstens Packing Co. v. O. S. L. R. R. Co., 17 L C. C. 324, 326. (b) Where a carrier in defending a rate to El Paso lower than that to Santa Rosa, an intermediate point nearer the point of origin of the shipment proves that the lower rates at El Paso are due to competitive conditions not existing at Santa Rosa, it does not then have the burden of proof of justifying the Santa Rosa rates, but such burden is on the person attacking such rates. Moise Bros. Co. V. C. R. I. & P. Ry. Co., 16 L C. C. 550, 553. (c) Having explained and excused a violation of section 4, the issue as to the reasonableness of the intermediate rate must take same course as any other issue involving reasonableness of rates. Moise Bros. Co. v. C. R. I. & P. Ry. Co., 16 I. C. C. r50, 553. §12. (2) Circumstances of Probative Force. See Evidence, II, §13 (3) (a), §20 (b); (a) Millers in southern Illinois, in- termediate to Boston and St. Louis, at- tacked the rates on flour and other grain products of 24.7c per 100 lbs. from their mills to Boston as violating the fourth section, when compared with the rates of 21.7c from St, Louis, a more dis- tant point. The rates from St. Louis apply on grain or grain products orig- inating west of that market and often west of the Missouri River. The grain in its progress from the field where it grows to the point of final consumption may pass through several grain markets, like Kansas City, St. Louis, Chicago and others. Rates are so adjusted that the grain can move at the same charge through several of these markets, the rate from market to market being a stated amount. HELD, following Balti- more Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C. 596, that the spe- cific rates from St. Louis are really di- visions of a through rate and, therefore, cannot be compared with the local rates paid by complainants, and from this it follows that the fourth section is not violated. Southern Illinois Millers' Ass'n V. L. & N. R. R. Co., 23 I. C. C. 672, 674. (b) On plain wire from Waukegan, III., to Carthage, Mo., complainant was charged the fifth-class rate of 33c per 100 lbs. The rate to Kansas City was 27c, a point 150 miles nearer north, and the rate to Springfield, Mo., seventy-five miles east of Carthage, 27c, a commodity rate. The rate on spring beds ^the prod- uct) to Springfield, a distributing point, was 30c. Defendants attempted to justify rates largely upon state rates determined by statute. HELD, existing rates were discriminatory against the manufacturer in Carthage in favor of the jobber in Springfield, and that for the future the rate should be at least 3c per 100 lbs. less than the rate contemporaneously applied by defendant to the transporta- tion of spring beds. Reparation denied. Leggett & Piatt Spring Bed & Mfg. Co. V. M. P. Ry. Co., 22 I. C. C. 513. (c) Rates over,, for the most part, identical routes and for almost exactly the same distance, which differ by one- eighth, require explanation. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 528. (d) In deciding questions under the fourth section, each case must stand upon its own facts, and no situation can furnish an exact precedent for another. Bluefield Shippers' Ass*n v. N. & W. Ry. Co., 22 I. C. C. 519, 526. (e) In determining questions under section 4, rates of the same kind must be compared with one another. In other words, transshipment rates must be com- 476 LONG AND SHORT HAULS, §12 (2) (f)— LOSS AND DAMAGE, §1 (c) pared with transshipment rates, propor- tional rates with proportional rates, and so on. Baltimore Chamber of Commerce V. B. & O. R. R. Co., 22 I. C. C. 59G, 601. (f) Complainants shipped numerous carloads of ice from ice plants in the Pocono jMountains upon the line of the D. L. & W. R. R. to various points of consumption upon the D. L. & W. R. R. in New Jersey. In previous proceedings the Commission found the rate to the terminal points unreasonable (15 I. C. C. 305; 17 L C. C. 447). Carriers reduced the rates to the terminal points, but did not reduce the rates to intermediate points, although the Commission found the rate to be unreasonable to the ter- minal points. HELD, there is no reason why the Commission must not also have found the same rate unreasonable to the intermediate point upon the direct line of transportation, since it found the rate to be unreasonable to the terminal point. Rates to the terminal points reduced and reparation awarded. Mountain Ice Co. v. D. L. & W. R. R. Co., 21 I. C. C. 45. (g) Complainant attacked the local rates from Indianapolis to East St. Louis of 38c, 321/20, 24c, 16y2C, I31/2C and lOi^c, as compared with the rates from Cin- cinnati, Jeffersonville, New Albany and other Ohio River points to East St. Louis of 41c, 34i^c, 251/20, I71/2C, 15c and 12c for the six numbered classes, respect- ively. The Indianapolis distance is ap- proximately 78.5 per cent of the average short line distance from the Ohio River crossings in question to Fast St. Louis and complainant demanded that the rates from Indianapolis be made 80 per cent of those from the Ohio River points. Under the rates attacked the per ton mile revenue was 3.2, 2.74, 2.03, 1.39. 1.14c and 8.9 mills for the first six classes, respectively. Under, the rates from Cincinnati to East St. Louis the per ton mile revenue was 2.43, 2.04, 1.51, 1.0 xC and 8.9 mills and 7.1 mills, and under the rates from Jeffersonville to East St. Louis, 3.03, 2.55, 1.88. 1.29, 1.11c and 8.8 mills for the first six classes, respectively. HELD, the rates attacked being constructed in accordance with the Central Freight Association distance scale and no hurtful discrimination be- ing shown, the change demanded must be denied, since to grant them would disturb every other rate established un- der that scale. Because the revenue per ton per mile yielded by rates from fp-- ther distant points is less than that yielded by rates from a shorter distant roint, it does not necessarily follow that the latter is subjected to unjust discrim- ination. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 513. LOSS AND DAMAGE. I. THE CARMACK AMENDMEINT. §1. Constitutionality. §2. Construction in general. §3. Effect of state legislation. §4. Jurisdiction of Commission. §5. Jurisdiction of state courts. II. CARRIERS' LIABILITY. §6. Initial carrier. §7. Intermediate carrier. §8. Delivering carrier. §9. Agreed or restricted valua- tion. §10. Common law liability. §11. Notice of loss. §12. Settlements and rights inter se. §13. Special damages. III. EVIDENCE. §14. Acts of connecting carrier. §15. Burden of proof. §16. Judicial notice. I. THE CARMACK AMENDMENT. §1. Constitutionality. See Constitutional Law. (a) The Carmack amendment of the Hepburn Act of 1906 (Sec. 20 of the Interstate Commerce Act) is constitu- tional. Galveston H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 491, 32 Sup. Ct. 205, 56 L. ed. 516. (b) The Carmack amendment requir- ing carriers in interstate commerce as a condition of continuing in that traffic to obligate themselves to carry to the point of destination, using the lines of the connecting carriers as their own agencies, is not beyond the scope of the power of regulation. A. C. L. R. R. Co. V. Riverside Mills, 219 U. S. 186, 203, 31 Sup. Ct. 164, 55 L. ed. 167. (c) The Carmack amendment, mak- ing the initial carrier liable for the loss of goods occurring on the lines of con- necting carriers, is not unconstitutional as denying the right of contract, since the right to freedom of contract is not unlimited and the regulation imposed is not an unwarranted abridgment thereof but is merely a denial of such LOSS AND DAMAGE, §1 (d)— (m) 477 right to the extent of forbidding or regulating every contract which is rea- sonably calculated to injuriously affect the public interest. A. C. L.. R. R. Co. V. Riverside Mills, 219 U. S. 186, 202, 31 Sup. Ct. 164, 55 L. ed. 167. (d) The Carmack amendment is not in violation of the third amendment of the constitution in taking the prop- erty of the initial carrier to pay the debt of an independent connecting car- rier whose negligence may have been the sole cause of the loss, since the resulting liability of the initial carrier is that of a principal for the negligence of its own agent. A. C. L. R. R. Co. v. Riverside Mills. 219 U. S. 186, 206, 31 8up. Ct. 164, 55 L. ed. 167. (e) Section 7 of the Hepburn Act of June 29, 1900, making the initial carrier liable for any loss, damage, or injury caused to the property by connecting car- riers, is not unconstitutional as violating the fifth amendment of the constitution of the United States in depriving the car- rier of property without due process of law. Riverside Mills v. A. C. L. R. R. Co., 168 Fed. 987, 989. (f) Section 7 of the Act of June 29, 1906, making the initial carrier of in- terstate commerce liable for any loss of or damage to goods in transit caused by a connecting carrier despite any pro- vision in its bills of lading to the con- trary, is not unconstitutional on the ground that the right of the initial car- rier to contract is infringed, or on the ground that it is deprived of prop- erty without due process of law. Smelt- zer V. St. L. & S. F. R. R. Co., 158 Fed. 649, 655, 659. (g) The portion of the Carmack amendment providing that the carriers issuing the receipt or bill of lading shall be entitled to recover from the carrier on whose line the loss or dam- age occurs, "the amount of such loss, damage, or injury as it may be re- quired to pay to the owners of such property, as may be evidenced by any receipt, judgment ry transcript thereof," is not unconstitutional, since it makes the receipt, judgment or transcript only prima facie or presumptive, and not conclusive, evidence. Central of Ga. Ry. Co. V. Sims, 169 Ala. 295, 301, 53 So. 826. (h) The Carmack amendment making the initial carrier liable for loss or dam- age occurring on the lines of connect- ing carriers is constitutional. Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 301, 53 So. 826. (i) The Carmack amendment to the Hepburn Act, making the init':al carrier liable for loss or damage to an inter- state shipment caused by connecting carriers, is not unconstitutional as de- priving the carrier of the right of the liberty of contract. St. L. & S. F. R. R. Co. v. Heyser (Ark. 1910), 130 S. W. 562, 566. (j) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to an inter- state shipment caused by connecting car- riers, is not beyond the legislative power of Congress to enact under the commerce clause of the constitution. St. L. & S. F. R. R. Co. V. Heyser (Ark. 1910), 130 S. W. 562, 566. (k) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to an inter- state shipment caused by connecting car- riers, is not unconstitutional as depriv- ing the initial carrier of its property without due process of law. St. L. & S. F. R. R. Co. -V. Heyser (Ark. 1910), 130 S. W. 562, 566. (1) Section 20 of the Act as amended June 29, 1906, making the initial car- rier liable for loss occurring on the lines of connecting carriers, is not unconsti- tutional on the ground that such provi- sion is not a regulation of commerce, since the Act, as a whole, does control interstate shipments in niany respects. Pittsburgh, etc., Ry. Co. v. Mitchell (Ind. 1910), 91 N. E. 735, 740. (m) The provision of section 20 of the Act as amended June 29, 1906, mak- ng the initial carrier liable for loss oc- curring on the line of connecting car- riers, is not unconstitutional as taking private property without due process, or as requiring one carrier to answer for the default of another, irrespective of solvency or insolvency in the latter, with whom it has no contract relations and over which it has no control, with the right in the shipper to route the ship- ment as he pleases, or as failing to pro- vide an adequate indemnity or means of enforcing the demands of the initial car- rier against the delinquent carrier. Pittsburgh, etc., Ry. Co. v. Mitchell (Ind. 1910), 91 N. E. 735, 740. 478 LOSS AND DAMAGE, §1 (n) — (z) (n) The Carmack amendment, mak- ing the initial carrier liable for loss oc- curring on the lines of connecting car- riers and forbidding exemption from such liability, is constituMonal. . Sturges v. D. G. H. & M. Ry. Co. (Mich. 1911), 131 N. W. 706, 708. (o) The provision of the amendment to the Act of June 29, 1906, making the initial carrier liable for damage occur- ring on the line of connecting carriers and providing that no contract should exempt it from such liability, is consti- tutional. Dodge V. C. St. P. M. & O. Ry. Co. (Minn. 1910), 126 N. W. 627, 629. (p) The Carmack amendment, mak- ing the initial . carrier of an interstate shipment liable for the loss or damage by connecting carriers and forbidding exemption from such liability, is not un- constitutional as abridging the right of contract. Greenwald v. Weir, 59 Misc. 431, 434, 111 N. Y. Sup. 235. (q) The Carmack amendment, mak- ing the initial carrier liable for loss, damage or injury caused by itself or a connecting carrier and forbidding ex- emption from such liability, is not un- constitutional, as taking .private prop- erty without compensation and without due process of law, or as denying the initial carrier the equal protection of the law. Galveston H. & S. A. Ry. Co. v. Johnson (Tex. 1911), 133 S. W. 725, 731. (r) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to an interstate Shipment caused by connecting carriers, is not unconstitutional as taking private property for public purposes without due process. Houston & T. C. R. R. Co. v. Lewis (Tex. 1910), 129 S. W. 594, 595. (s) The Carmack amendment, making the initial carrier of an interstate ship- ment liable for loss or damage caused by it or connecting carriers and forbidding exemption by contract from such liabil- ity, is not unconstitutional as taking pri- vate property without due process. L. & N. R. R. Co. V. Scott, 133 Ky. 724, 730, 118 S. W. 990. (t) The Carmack amendment of June 29, 1906, making the initial carrier liable for loss or damage to an interstate ship- ment caused by the connecting carrier, and forbidding exemption from such lia- bility, is not unconstitutional as invading the sovereignty of states or as violating the fourteenth amendment of the Fed- eral Constitution. Galveston H. & S. A. Ry. Co. V. Crow (Tex. 1909), 117 S. W. 170, 170. vu) The CarmacK amendment of June 29, 1906, making the initial carrier of an i interstate shipment liable for loss or 1 damage caused by it or connecting car- riers and forbidding exemption by con- tract from such liability, is not uncon- stitutional as invading the sovereignty ^f the states. Galveston H. & S. A. Ry. Co. V. Wallace (Tex. 1909), 117 S. W. 1C9. (v) The Carmack amendment of June 29, 1906, making the initial carrier of an interstate shipment liable for loss or damage caused by it or connecting car- riers and forbidding exemption by con- tract from such liability, is not uncon- stitutional as taking the carrier's prop- erty without due process of law. Gal- veston H. & S. A. Ry. Co. v. Wallace (Tex. 1909), 117 S. W. 169. (w) The Carmack amendment of June 29, 1906, making the initial carrier of an interstate shipment liable for loss or damage caused by it or connecting car- riers and forbidding exemption by con- tract from such liability, is not unconstitu- tional as depriving the carrier of equal protection of the law. Galveston, H. & S. A. Ry. Co. V. Wallace (Tex. 1909), 117 S. W. 169, 169. (x) The Carmack amendment, provid- ing that the initial carrier shall be liable for loss or damage to an interstate ship- ment caused by itself or by connecting carriers and prohibiting the initial car- rier from limiting its liability by receipt or by bill of lading, is not unconstitutional as interfering with the rights of the states. Galveston H. & S. A. Ry. Co, v. Piper Co., 52 Tex. Civ. App. 568, 573, 115 S. W. 107. (y) The Carmack amendment making the initial carrier liable for loss, damage or injury caused to an interstate ship- ment by connecting carriers is not un- constitutional as depriving such carrier of its property without due process of law. Galveston H. & S. A. Ry. Co. v. Piper Co., 52 Tex. Civ. App. 568, 573, 115 S. W. 107. (z) The Carmack amendment to the Act, making the initial carrier liable for loss and injury occurring on the lines of connecting carriers, is constitutional. Old Dominion S. S. Co. v. Flanary & Co. (Va. 1911), 69 S. E. 1107, 1108. LOSS AND DAMAGE, §2 (a)— §3 (d) 479 §2. Construction in General. (a) The Carmack amendment, making the initial carrier liable for loss, damage or injury caused on its own or the line of a connecting carrier, imposes the ordi- nary common-law liability and denies the common-law right to contract for special exemptions therefrom, and the word "caused" implies not only active miscon- duct and deeds of commission, but also passive neglect, deeds of omission and failures to exercise duties faithfully. L. & N. R. R. Co. V. Warfield, 6 Ga. App. 550, 553, G5 S. E. 308. (b) The clause in the Carmack amend- ment to the Hepburn Act, making the initial carrier liable for loss or damage to goods on its own line or the line of connecting carriers, is declaratary of the common law; the clause forbidding it by receipt, contract, rule or regulation to exempt itself from the liability imposed is in derogation of the common law. S. P. Co. V. Crenshaw, 5 Ga. App. 675, 685, 63 S. E. 865. (c) The Carmack amendment created only one new liability — that of the initial carrier for loss or damage caused by the connecting carrier. It did not create or alter the liability of the initial carrier for loss or damage on its own line. Mc- Elvain v. Railroad, 151 Mo. App. 126, 153, 131 S. W. 736. (d) Defendant truckman received goods in New York City to be carried to the wharf and thence to be transported by ocean carrier to Boston. Defendant's duty was simply to cart same from the store to the dock as an independent em- ployment. HELD, he was not a common carrier engaged in the transportation of property "wholly by railroad (or partly by railroad, and partly by water under a common control, management or arrange- ment)" within the meaning of section 1 of the Interstate Commerce Act so as to make him liable under the Carmack amendment for loss caused by the ocean carrier. Hirsch v. New England Nav. Co., 129 App. Div. 178, 181, 113 N. Y. Sup. 395. (e) Under the Carmack amendment, making the initial carrier liable for loss or damage caused Ly its own or the line of a connecting carrier, as to shipments "from a point in one state to a point in another state," and forbidding exemption from such liability, the word "state" re- fers to a state of the Union and not to a foreign country, and the amendment has therefore no application to a shipment received in Texas to be carried via Gal- veston to Bremen, Germany. Houston E. & W. Tex. Ry. Co. v. Inman (Tex. 1911), 134 S. W. 275, 277. (f) The Carmack amendment to the Hepburn Act, passed June 29, 1906, and approved by the President of the United States, June 30, 1906, making the initial carrier of an interstate shipment liable for loss or damage caused by connecting carriers, was in force on July 3 and 4, 1906, despite a resolution of Congress passed June 30, 1906, providing that said amendment should take effect and be in force sixty days after its approval by the President. S. P. Co. v. Meadors & Co. (Tex. 1910), 129 S. W. 170, 173. §3. Effect of State Legislation. See Interstate Commerce, §4 (o). (a) The Carmack amendment does not prevent the shipper from enforcing the liability created by the law of his state against a carrier for loss of goods in an interstate shipment. Latta v. C. St. P. M. & O. Ry. Co., 172 Fed. 850, 855. (b) The Hepburn Act makes the ini- tial carrier liable for loss or damage to an interstate shipment caused by a con- necting carrier. Defendant initial carrier received goods under a shipping contract made prior to the passage of this Act, and nothing was stated therein as to defendant's liability beyond its own line. HELD, under the law of California, de- fendant was liable for damage caused by the connecting carrier's negligence. Schwartz v. Panama R. R, Co., 155 Cal. 742, 748, 103 P. 196. (c) In Georgia, prior to the enact- ment of the Carmack amendment mak- ing the initial carrier liable for loss and injury occurring on the lines of connect- ing carriers, and forbidding exemption by contract from, such liability, a provi- sion in a shipping contract making an arbitrary preadjustment of damages was invalid, and nothing in said amendment changes this rule. L. & N. R. R. Co. v. Warfield, 6 Ga. App. 550, 552, 65 S. E. 308. (d) The regulations of Congress mak- ing the initial carrier liable for loss or damage to interstate shipments, whether occurring on its own or the line of a connecting carrier, are paramount and supersede all state laws, and a state court in a case to which the provisions of the federal statute are applicable will follow such statute, any state laws to the con- 480 LOSS AND DAMAGE, §3 (e)— §4 (a) trary notwithstanding. S. P. Co. v. Cren- shaw, 5 Ga. App. 675, 689, eS S. E. 865. (e) Where a state statute forbids a carrier by contract to make its liability for loss or damage other than that im- posed at common law, the shipper may recover damages based on the full value of the goods despite a shipping contract limiting the liability to an unreasonably low sum, and this irrespective of the fact that the carrier regularly filed the form of shipping contract involved with the Interstate Commerce Commission. Blair & Jackson v. Wells, Fargo Co. (la. 1912), 135 N. W. 615, 620. (f) A state statute forbade carriers from in any way limiting their liability for losses and injuries. Defendant car- rier filed with the Interstate Commerce Commission two rates on hogs, extend- ing the lower one of same only when the shipper agreed upon an arbitrary valua- tion of $10 per head. HELD, the Inter- state Commerce Act as amended by the Carmack amendment and as it stood prior to the amendment of June 18, 1910, did not supplant the state statute so as to prevent the shipper in an interstate shipment from recovering in the state court, damages based on the full value of the hogs. Cramer v. C. R. I. & P. Ry. Co. (la. 1911), 133 N. W. 387, 390. (g) Where a state statute forbids the carrier in any way to limit its liability, nothing in the Carmack amendment of June 29, 1906, prevents a shipper from re- covering the full value for the loss of live stock, despite the limitation of lia- bility to a specified sum in the shipping contract. Betus v. C. B. & Q. R. R. Co. (la. 1911), 129 N. W. 962, 963. (h) The right of a state to legislate as to the validity of provisions in ship- ping contracts, limiting the liability of the carrier, is recognized by the Car- mack amendment to the Hepburn Act. McElvain v. Railroad, 151 Mo. App. 126, 155, 131 S. W. 736. (i) The provision of the Act of Con- gress of June 29, 1906, known as the "Hepburn Act," does not displace a pre- viously existing state statute restricting the right of a common carrier to limit liability upon interstate shipments. A. T. & S. F. Ry. Co. v. Rodgers (N. M. 1911), 113 P. 805, 809. (j) Unless and until there is some valid regulation by Congress or the Inter- state Commerce Commission directly affecting the matter, a state has the right to establish a policy of forbidding car- riers to limit liability for loss and injury to goods arising from their negligence, and the right to enforce such policy in reference to interstate shipments. Kis- singer V. Fitzgerald, 152 N. C. 247, 253, 67 S. E. 588. (k) The Pennsylvania law forbids a carrier from limiting its liability for negligence, and does not prevent such exemption even to the extent of allowing the shipper and the carrier to make binding an agreed valuation. HELD, in a suit in a Pennsylvania court to recover lor the loss of property shipped from Pennsylvania to New York, the Carmack amendment to the Act did not result in the application of the rule of the federal court permitting a limitation of liability to an agreed valuation, nor did it sup- plant the Pennsylvania rule, and the shipper was free to recover the true value of the property. Wright v. Adams Express Co., 230 Pa. 635, 639, 79 A. 760. (1) A state statute prescribed a penalty for the failure of a carrier to trace and inform the shipper as to lost packages. The Carmack amendment makes the initial carrier liable for loss or damage to interstate shipments caused by it or by connecting carriers. HELD, that such state statute, with respect to interstate shipments, must yield to the federal statute; that the Carmack amendment prescribed no liability for failure to trace and inform, and therefore the shipper could not recover of the initial carrier. Meetze v. Southern Express Co. (S. C. 1912), 74 S. E. 823, 824. §4. Jurisdiction of Commission. See Discrimination, §15 (f ) ; Inter- state Commerce Commission, §1 (k). (a) The Commission is without juris- diction to award tort damages. Mattison V. P. Co., 23 I. C. C. 233. 235; Ralston Townsite Co. v. M. P. Ry. Co., 22 I. C. C. 354, 355; Wood-Mosaic Flooring & Lumber Co. v. L. «fe N. R. R Co., 22 I. C. C. 458, 459; Kay Co. v. D. & R. G. R. R. Co., 21 L C. C. 239, 240; Buffalo Hard- wood Lumber Co. v. B. & O. S. W. R. R. Co., 21 L C. C. 536, 538; Hanley Milling Co. V. P. Co., 19 I. C. C. 475, 476; Poncha- toula Farmers' Ass'n v. I. C. R. R. Co., 19 I. C. C. 513, 515; Hillsdale Coal & Coke Co. V. Penn. R. R. Co., 19 I. C. C. 356, LOSS AND DAMAGE, §4 (b)— §5 (g) 481 371; Joynes v. Penn. R. R. Co., 17 I. C. C. 361, 369; Werner Saw Mill Co. v. I. C. R. R. Co., 17 I. C. C. 388, 391; Lan- ing-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 38; Blume & Co. V. Wells, Fargo & Co., 15 I. C. C. 53, 55; Royal Brewing Co. v. Adams Ex- press Co., 15 I. C. C. 255, 256; Manning V. C. & A. R. R. Co., 13 I. C. C. 125, 1-27; Pittsburgh C. C. & St. L. Ry. Co. v. Knox (Ind., 1912), 98 N. E. 295, 299; Fuller- ton Lumber Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 150; Rivers Bros. Co. v. Wells, Fargo & Co., Unrep. Op. 496. (b) The Commission is without juris- diction to award damages for delay and deterioration of shipments in transit. Rivers Bros. Co. v. Wells, Fargo & Co., Unrep. Op. 496. (c) The Interstate Commerce Com- mission is not a court and cannot, there- fore, under the Carmack amendment, try an action by a shipper against an initial carrier for damage to an interstate ship- ment caused by the connecting carrier. L. & N. R. R. Co. V. Scott, 133 Ky 724, 729, 118 S. W. 990. §5. Jurisdiction of State Courts. See Courts, §11 (f), (h), (k), (o), (w), (X). (a) In a suit against an initial carrier under the Carmack amendment to the Hepburn Act of 1906, for a failure to de- liver goods at destination, a state court has jurisdiction since the Act complained of is not a violation of the original Act of 1887, and the Interstate Commerce Commission does not have, therefore, the exclusive jurisdiction under section 9 of the Act. Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 489; 32 Sup. Ct. 205, 56 L. ed. 516. (b) The Carmack amendment making the initial carrier liable for loss or dam- age occurring on its own or on the line of a connecting carrier will be recognized and enforced by the state courts. Central of Ga. Ry. v. Sims, 169 Ala. 295, 300, 53 So. 826. (c) A state court has jurisdiction un- der the Carmack amendment to the Hep- burn Act, making the initial carrier liable for loss or damage caused by connecting carriers, to entertain an action against an initial carrier for damages caused by a connecting carrier in failing to carry an interstate shipment of peaches with reasonable dispatch, and to keep the same properly iced. St. L. & S. F. R. R. Co. V. Heyser (Ark. 1910), 130 S. W. 562, 564. (d) Sections 8 and 9 of the Interstate Commerce Act declare a liability for dam- ages which result where the common carrier "shall do, cause to be done, or permit to be done, any act, matter or thing in this Act prohibited or declared to be unlawful or shall omit to do any act, matter or thing in this Act required." HELD, the liability created by the Car- mack amendment to the Hepburn law, making the initial carrier of an interstate shipment responsible for loss or damage occurring on the line of a connecting car- rier, is not governed by said sections 8 and 9 so as to give the Interstate Com- merce Commission and the federal courts exclusive jurisdiction, but since the liability under the Carmack amend- ment was not created by the Interstate Commerce Act, state courts have at least concurrent jurisdiction with the Inter- state Commerce Commission and the federal courts. St. L. & S. F. R. R. Co. v. Heyser (Ark. 1910), 130 S. W. 562, 565. (e) A state court has jurisdiction to enforce the Carmack amendment to the Hepburn Act, making the initial carrier liable for loss occurring on the lines of connecting carriers. L. & N. R. R. Co. v. Warfield, 6 Ga. App. 550, 551, 65 S. E. 308. (f) Neither the federal courts nor the Interstate Commerce Commission is given jurisdiction, under sections 8 and 9 of the Interstate Commerce Act, over actions to recover against the initial carrier for loss of or injury to goods occurring on its line or that of con- necting carriers, in pursuance of the liability imposed by the Carmack amend- ment; and even if the contrary be true, the state courts have at least concur- rent jurisdiction over such actions. S. P. Co. V. Crenshaw, 5 Ga. App. 675, 686, 687, 63 S. E. 865. (g) Under section 20 of the Act, as amended June 20, 1906, making an in- itial carrier liable for loss, damage or injury to property occurring on the line of a connecting carrier, and providing that nothing in the amendment should deprive a shipper of any remedy or right of action under ' existing laws, and under section 22 of the Act, as amended in 1889, providing that nothing therein should in any way abridge or alter the remedies now existing at common law 482 LOSS AND DAMAGE, §5 (h)_§6 (c) or by statute, but the provisions of the Act should be in addition to such rem- edies, a state court has jurisdiction over a suit in assumpsit to recover damages for delay of an interstate shipment. Pittsburgh, etc., Ry. Co. v. Mitchell (Ind. 1910), 91 N. E. 735, 738. (h) Since an action against an in- itial carrier to recover for damage to an interstate shipment caused by a connecting carrier, though brought un- der the Carmack amendment to the Hepburn Act, is not an action based on a violation of the Interstate Commerce Act, but is an action based on the in- jury to the property, the state courts have jurisdiction, especially in view of the provision "that nothing in this sec- tion shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." L. & N. R. R. Co. v. Scott, 133 Ky. 724, 729, 118 S. W. 990. (i) The furnishing by an interstate carrier of bulkheads with cars for the transportation of grain does not con- stitute the granting of the "privileges or facilities" which are required to be published with the Interstate Commerce Commission by section 6 of the Inter- state Commerce Act; and a shipper, where the carrier fails to furnish bulk- heads, may therefore recover in an action at law in a state court for the expense of supplying same, although the published schedules make no allowance for furnishing same. (Kruse and Spring, J. J., diss.) Loomis v. Lehigh Valley R. R. Co., 132 N. Y. Supp. 138, 141. (j) Under the Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to an Interstate shipment caused by cc-nnect- ing carriers, a state court has juris- diction by virture of its own law and of the Interstate Commerce Act to en- tertain a suit for damages to enforce such liability. Houston & T. C. R. R. Co. v. Lewis (Tex. 1910), 129 S. W. 594, 594. (k) A state court has jurisdiction of an action brought under the Carmack amendment against an initial carrier for non-delivery of interstate freight by the connecting carriers. Galveston, H. & S. A. Ry. Co.. V. Crow (Tex. 1909), 117 S. W. 170, 170. (1) A suit brought against an Initial carrier to recover for loss or damage to an interstate shipment caused by a connecting carrier, under the provision of the Carmack amendment, is not a suit for the violation of the Interstate Commerce Act and one required- by sec- tion 8 of such Act to be brought in the federal courts or before the Interstate Commerce Commission, but Is a suit for the value of property, and the state courts have jurisdiction, therefore, to entertain the same. Galveston, H. & S. A. Ry. Co. V. Piper Co., 52 Tex. Civ. App. 568, 572, 115 S. W. 107. (m) While paragraph 3, section 10, of the Act as amended by the Act of March 2, 1889, prohibits a shipper from obtaining the transportation of property at less than the regular rates by fraud- ulent representations as to the value, and makes such fraud a misdemeanor and imposes a penalty therefor, the ship- per is not prevented from recovering, if the goods are lost, their apparent value according to the representation made. Adams Express Co. v. Green (Va. 1911), 72 S. E. 102, 105. II. CARRIERS' LIABILITY. See Facilities and Privileges, §18 (cc), §20 (f). §6. Initial Carrier. (a) Under the Carmack amendment (section 20 of the Interstate Commerce Act), wherever the carrier voluntarily accepts goods for shipment to a point on another line in another state, it is conclusively treated as having made a through contract and as though the points of destination were on its own line, and is liable for any loss or damage occurring on its own line, or that of a connecting carrier. Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S., 481, 491; 32 Sup. Ct. 205, 56 L. ed. 516. (b) Under the Carmack amendment an initial carrier is liable for the loss of goods by the connecting carrier de- spite a provision in the bill of lading to the contrary. A. C. L. R. R. Co. v. Riverside Mills, 219 U. S. 186, 201; 31 Sup. Ct. 164, 55 L. ed. 167. (c) The effect of the Carmack amendment in respect to carriers receiv- ing packages in one state for points in another and beyond their own lines. Is to deny to the initial carrier the former right to make a contract limiting lia- bility to its own line. A. C. L. R. R. Co. V. Riverside Mills, 219 U. S. 186, 201; 31 Sup. Ct. 164, 55 L. ed. 167. ♦ . LOSS AND DAMAGE, §6 (d)— (n) 483 (d) All provisions and bills of lading for interstate commerce, contrary to sec- tion 7 of the Hepburn Act of June 29, 1906, which makes the initial carrier liable for loss of or dam.age to goods in transit caused by a connecting carrier, are void. Smeltzer v. St. L. & S. F. R. R. Co., 158 Fed. 649, 654. (e) The initial carrier of an interstate shipment cannot validly stipulate against Its liability for any loss or damage not occurring on its own line. Robertson v. S. Ry. Co. (Ala. 1912), 59 So. 232, 232. (f) Under the Carmack amendment, the initial carrier of an interstate ship- ment cannot limit its liability to loss or damage occurring on its own line. A. C. L. R. R. Co. v. Ward (Ala. 1912), 58 So. 677, 678. (g) The fact that a bill of lading con- tains an exemption of liability void under the Carmack amendment, making the Initial carrier liable for loss occurring on the lines of connecting carriers and forbidding the exemption from such lia- bility, does not vitiate the entire contract of shipment so as to preclude the holder from recovery for a failure safely to transport goods. Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 301, 53 So. 826. ih^ A provision in the bil of lading of an interstate shipment limiting the lia- bility of the initial carrier to loss or damage occurring on its own line is In- valid under the Carmack amendment to section 20 of the Act, making the initial carrier liable for loss damage or injury occurring on its own line or on the lines of connecting carriers. Central of Ga. Ry. Co. V. Sims, 169 Ala. 295, 299, 53 So. 826. (i) Where an initial carrier is sued under the Carmack amendment to re- cover for loss occurring on the lines of a connecting carrier, defendant cannot question the constitutionality of that por- tion of the amendment which gives the initial carrier a right to recover of the connecting carrier the amount which the 'nitial carrier was required to pay to the wner of the property, since defendant fs not within the class affected by such provision. Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 301, 5^ So. 82G. (j) The rule in Alabama, making each carrier responsible only for the loss or Injury occurring on its own line, was changed by state statute and by the Car- mack amendment of June 29, 1906, so as to make the initial carrier responsible for any loss, damage or injury caused by it or the connecting carriers. Central of Ga. Ry. Co. V. Chicago Varnish Co., 169 Ala. 287, 290, 53 So. 832. (k) The Carmack amendment to the i^epburn Act, making the receiving car- rier of an interstate shipment liable for loss or damage caused by its own or ti-e lines of connecting carriers, does not ren- der such carrier liable for loss or injury to cattle occurring before the same were unloaded and resulting from their. escape from the stock pen of the carrier at the point of origin. St. L. I. M. & S. Ry. Co. V, Jones (Ark. 1910), 125 S. W. 1025, 1029. (1) A stipulation in an oral or written contract of an interstate shipment, limit- ng the liability of the initir.l carrier to losses occurring on its own line, stating :hat it did not agree to transport the cat- tle at any specifisd time, or deliver them it any particular hour, or in season for iny particular market, and limiting the 'lability in case of loss to a specified sum, s void under the Carmack amendment to the Hepburn Act making the receiving carrier liable for loss or damage caused by it or by connecting carriers and forbid- ding exemption from such liability. C. R. I. & P. Ry. Co. V. Miles, 92 Ark. 573, 5./, 123 S. W. 775. (m) In an action against an initial carrier for loss or damage to an inter- state shipment caused by a connecting carrier, an instruction limiting defend- ant's liability to the damage to stock oc- curring while the stock were in its pos- session is contrary to the Carmack amendment to the Hepburn Act. St. L. I. M. & S. Ry. Co. V. Furlow, 89 Ark. 104, 412, 117 S. W. 517. (n) By the schedules filed with the Interstate Commerce Commission, the rate on horses was lower when they were shipped under the "uniform bill of lading conditions" than when shipped not sub- ject to such conditions. Plaintiff ship- per, in ignorance of the provisions of the schedule, made a special contract for ex- pedited service in the shipment of horses at the rates specified in t-ie sched- ule for shipment under the "uniform bill of lading conditions." HELD, he was not precluded from recovering in a suit against the carrier for delay on tie ground that his contract attempted to secure a preference in violation of the Interstate Commerce Act. Kirby v. C. & A. R. R. Co., 242 111. 418, 432, 90 N. E. 4S4 LOSS AND DAMAGE, §6 (o) — (y). 252; reversed on other grounds, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. ed. 1033. (o) The initial carrier is expressly made liable by the Interstate Commerce Act for a continuous carriage, and a contract to the contrary is iiA^alid. Pitts- burgh C. C. & St. L. Ry. Co. v. Knox (xnd. 1912), 98 N. E. 295, 300. (p) Where an initial carrier in the bill of lading contracts to carry to a point beyond its own line and receives pay for the whole distance, a provision in the bill of lading, limiting its liability to loss oc- curring on its own line, is void, as being in conflict with section 20 of the Act as amended June 29, 1906, making the initial carrier liable for loss occurring on the line of connecting carriers. Pittsburgh, etc., Ry. Co. V. Mitchell (Ind. 1910), 91 N. B. 735, 739. (q) A provision in a bill of lading of an interstate shipment exempting the ini- tial carrier from all liability for damage occurring on the lines of connecting car- riers is void as being in contravention of the Carmack amendmet of June 29, 190'o. Dodge v. C. St. P. M. & O. Ry. Co. (Minn. 1910), 126 N. W. 627, 629. (r) Under the Carmack amendment, making the initial carrier liable for loss occurring on the lines of connecting car- riers and forbidding exemption by con- tract from such liability, a stipulation in the bill of lading of an interstate ship- ment limiting the liability of the initial carrier to loss occurring on its own line is invalid. S. P. Co. v. Lyon & Co. (Miss. 1911), 54 So. 784. (s) An initial carrier cannot escape the liability imposed upon it by the Car- mack amendment for loss of goods on the line of the connecting carrier by rea- son of the fact that it fails to issue a re- ceipt or bill of lading therefor. Interna- tional Watch Co. V. D. L. & W. R. R. Co., 80 N. J. L. 553, 556, 78 A. 49. (t) Under the Carmack amendment, a carrier receiving property in New Jersey for transportation to New York becomes liable to the shipper for any loss caused by any connecting carrier to which the initial carrier deliv-ers the goods to be transported to the desig- nated point in New York. Florman v. Dodd & Childs Express Co., 79 N. J. L. 63, 65, 74 A. 446. (u) Defendant initial carrier issued a bill of lading for the transportation of eggs from a point in Texas to New York at the published through rate. The bill provided that other cases of eggs might be loaded at points on the line of the connecting carrier. HELD, under the Carmack amendment, the in- itial carrier was liable for loss or dam- age caused by the connecting carrier to the eggs received at points on the line of connecting carriers. (Ingraham, P. J., dissenting.) DeWinter & Co. v. Tex. Cent. R. Co. (N. Y. 1912), 135 N. Y. Supp. 893, 896. (v) Where the bill of lading issued by the initial carrier of an interstate shipment provides that additional goods may be loaded into the cars at points on the connecting lines, the stopping of the cars at such line to receive the goods does not amount to a delivery to the shipper, so as to deprive him of his remedy under the Carmack amendment against the initial carrier for loss or damage caused by the connecting car- rier. De Winter & Co. v. Tex. Cent. R. Co. (N. Y. 1912), 135 N. Y. Supp. 893, 897. (w) The effect of the Carmack amendment as to interstate shipments is to make the connecting carriers the agents of the initial carrier, the same as if it had contracted for through carriage to the point of destination. Earnest v. D. L. & W. R. R. Co. (N. Y. 1912), 134 N. Y. Supp. 323, 325. (x) The provision in the uniform bill of lading approved by the Commission, which forbids inspection except with the shipper's permission, does not en- large the liability of the initial carrier for acts of the connecting carrier cre- ated by the Carmack amendment. Ear- nest V. D. L. & W. R. R. Co. (N.Y. 1912), 134 N. Y. Supp. 323, 326. (y) An interstate shipment of apples was sent under a uniform bill of lad- ing approved by the Commission, which provided that inspection would not be permitted without the consignor's con- sent. Plaintiff consignor gave no con- sent and sent the bill of lading, with draft attached, to a Chicago bank for collection. The connecting carrier at Chicago, while retaining possession, al- lowed the consignee to inspect the ap- ples in the car, and the consignee re- jected the same, being under no legal contract to purchase them. Plaintiff did not prove the apples were damaged by the inspection or that the fact of LOSS AND DAMAGE, §6 (z)— (jj) 485 inspection caused the consignee to re- ject them. HELD, the violation of the provision in the bill of lading against inspection by the connecting carrier did not, under the Carmack amendment making the initial carrier responsible for loss, damage or injury caused by the connecting carrier, render the in- itial carrier liable for conversion of the apples. Earnest v. D. L. & W. R. R. Co. (N. Y. 1912), 134 N. Y. Supp. 323, 326. (z) Under the Carmack amendment the initial carrier is liable for damage to an interstate shipment caused by the negligence of the connecting carrier, despite a clause in the bill of lading limiting its liability to loss or damage occurring on its own line. Shultz v. Skaneateles R. Co., 66 Misc. 9, 12, 122 N. Y. Supp. 445. (aa) Where defendant initial carrier accepts in New York goods destined to another state, it is liable under the Carmack amendment for damage to the goods resulting from the negligence of the connecting carrier in loading same into an unsuitable car, although defend- ant's line lies wholly in the state of New York. Shultz v. Skaneateles R. Co., 66 Misc. 9, 18, 122 N. Y. Supp. 445. (bb) Under the Carmack amendment, making the initial carrier liable for loss or damage caused by connecting car- riers, and forbidding exemption by con- tract from such liability, an exemption clause in the bill of lading is void. Shidlovsky v. Mallory S, S. Co., 60 Misc. 67, 68, 111 N. Y. Supp. 778. (cc) Where an interstate shipment is specifically routed over the lines of connecting carriers by the shipper, and the connecting carrier in conjunction with the initial carrier, alters the rout- ing and diverts the shipment in such a way as to result in the loss of the same, the initial carrier is liable, under the Carmack amendment. Drake v. Nashville, C. & St. L. R. R. Co. (Tenn. 1911), 148 S. W. 214, 218. (dd) Under the Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage caused by it or connecting carriers, a shipper is not prevented from recovering the entire loss from the initial carrier by reason of the fact that he joins the con- necting carriers as defendants to the suit. Missouri, K. & T. Ry. Co. v. Demere (Tex. Civ. App 1912), 145 S. W. 623, 626. (ee) The Carmack amendment, mak- ing the initial carrier liable in inter- state shipments, does not apply where the damage claimed arises from delay in transit, and is not in reference to the property itself, which is the subject of transportation. Gulf, C. & S. F. Ry. Co. V. Nelson (Tex. 1911), 139 S. W. 81, 85. (ff) Where damage to live stock is caused on the line of several connect- ing carriers, between whom no partner- ship relation exists, each is liable only for the portion of the damage caused by it, as the initial carrier is the only car- rier made liable by the Carmack amend- ment to the Hepburn Act for all dam- age, irrespective of the line on which it takes place. Eastern Ry. Co. v. Montgomery (Tex. 1911), 139 S. W. 885, 886. (gg) Under the Carmack amendment, a clause in a shipping contract limiting liability for loss or damage to an inter- state shipment to that occurring on the initial carrier's line is void. Pecos & N. T. Ry. Co. V. Crews (Tex. 1911), 139 S. W. 1049, 1051. (hh) Where defendant initial carrier has entered into no agreement to make diversion of an interstate shipment, it is not liable, under the Carmack amend- ment making it responsible for loss or damage caused by the connecting car- rier, for the failure of the connecting carrier, after receiving the shipment, to divert same, such failure being the re- sult of defendant's omission to notify the connecting carrier of the wishes of the shipper in this respect. Patton v. Texas & P. Ry. Co. (Tex. 1911), 137 S. W. 721, 723. (ii) Under the Carmack amendment, making the initial carrier liable for loss or damage caused by itself or connect- ing carriers and forbidding exemption from such liability, a stipulation in a bill of lading of an interstate shipment for exemption from liability for loss or damage to the goods occasioned by fire, is without effect, if the fire is due to the negligence of any carrier handling the goods. Southern P. Co. v. Weather- ford Cotton Mills (Tex. 1911), 134 S. W. 778, 779. (jj) Under the Carmack amendment, making the initial carrier liable for loss 486 LOSS AND DAMAGE, §6 (kk)— (ss) or damage caused by the connecting carrier, the initial carrier's liability is the same whether by its shipping con- tract it states that it undertakes to transport to destination or only to the end of its own line, where the contract provides for and contemplates delivery to the connecting carrier and the car- rying of the goods to the destination on the line of the connecting carrier. Gal- veston, H. & S. A. Ry. Co. v. Johnson (Tex. 1911), 133 S. W. 725, 730. (kk) Where an initial carrier issues a bill of lading for a shipment from New Orleans, La., to Waco, Tex., and names the connecting carriers therein, the shipment is interstate, so as to bring it under the Carmack amendment and make void a provision in the bill of lading limiting the initial carrier's liability to loss or damage occurring on its own Une. Kemendo v. Fruit Dis- patch Co. (Tex. 1910), 131 S. W. 73, 78. (11) Where a connecting carrier causes damage to an interstate shipment by wrongful diversion of the same, the shipper may, under the Carmack amend- ment of June 29, 1906, recover for such damage of the initial carrier. Kemendo V. Fruit Dispatch Co. (Tex. 1910), 131 S. W. 73, 79. (mm) Whatever presumption may have existed, prior to the enactment of the Carmack amendment of 1906, that damages occurred on the line of the finals carrier, can have no place in con- struing the liability of the carrier, on whose line the damages occurred, to the initial carrier, because the right of the initial carrier to recover against a connecting carrier is made to rest alone on proof that the damages occurred on that line. Presumptions indulged in by courts, prior to the enactment of the amendment, in regard to the final carrier, have no bearing or effect upon cases arising under the amendment. These presumptions have been effectu- ally destroyed by the declaration that the initial carrier in interstate ship- ments is liable, no matter on what line the damages occurred. Carlton Produce Co. V. Velasco, B. & N. Ry. Co. (Tex. 1910), 131 S. W. 1187, 1188. (nn) A "shipping order contract and bill of lading," stating the number and de- scribing the horses shipped, the name of the consignee and the destination in an- other state, and containing stipulations governing the entire transportation from the initial point in one state to the dfea- tination in another state, and undertak- ing to specify the rights, duti^a and limi- tations of the parties and also of those of subsequent carrjpra, is a "receipt or bill of lading:" ^vilhin the meaning of the Carmack amendment, which requires the issuance of such a receipt for an inter- state shipment and makes the initial car- rier liable for loss or damage caused by connecting carriers. S. P. Co. v. Meadors & Co. (Tex. 1910), 129 S. W. 170, 172. (oo) A provision in a shipping con- tract limiting the liability of the initial carrier of an interstate shipment to loss or damage occurring on its own line is invalid under the Carmack amendment to the Hepburn Act, making such carrier responsible for loss or damage caused by connecting carriers. S. P. Co. v. Meadors & Co. (Tex. 1910), 129 S. W. 170, 172. (pp) An initial carrier, with its line entirely within the state of Texas, issued a through bill of lading and guarantee of a through rate for the carriage of goods from a point in Texas to a point in Ala- bama. The shipping contract stated that the initial carrier agreed only to carry the goods to the end of its line and de- liver same to the connecting carrier. HELD, the shipment was interstate, so as to make the initial carrier liable for loss or damage caused by the connecting car- riers. Houston & T. C. R. R. Co. v. Lewis (Tex. 1910), 129 S. W. 594, 595. (qq) The Carmack amendment to the Hepburn Act makes "any carrier receiv- ing property for transportation from a point in one state to a point in another state" liable for loss caused by itself or by connecting carriers, and the shipper may, therefore, sue an intermediate car- rier receiving the goods, and is not obliged to institute action against the initial carrier. St. L. S. W. Ry. Co. of Tex. V. Ray (Tex. 1910), 127 S. W. 281, 282. (rr) Under the provisions of the Inter- state Commerce Act as amended June 29, 1906, a carrier who receives property for transportation from one state into an- other is made liable for any loss, damage or injury to such property caused by a connecting carrier, and cannot restrict its liability to its own line. INI. K. & T. Ry. Co. of Tex. v. Carpenter, 52 Tex. Civ. App. 585, 587, 114 S. W. 900. (ss) The Carmack amendment to the Act, making the initial carrier liable for loss and injury occurring on the lines LOSS AND DAMAGE, §6 (tt)— §9 (b) 487 of connecting carriers and forbidding the exemption by contract from such liability, makes void a limitation in the bill of lading limiting the liability of the initial ocean carrier to losses occurring on its own line, in an interstate shipment by ocean and rail. Old Dominion S. S. Co. V. Flanary & Co. (Va. 1911), 69 S. E. 1107, 1108. (tt) The initial carrier is not liable, under the Carmack amendment, making It answerable for loss of any interstate shipment occurring on the line of the con- necting carrier, where the loss com- plained of arises from the sale of the goods by the latter carrier to satisfy freight charges after the consignee has negligently failed to call for them and the connecting carrier has placed them in its warehouse. Norfolk & W. R. R. Co. v. Stuart Draft Co., 109 Va. 184, 188, 63 S. E. 415. (uu) Defendant initial carrier re- ceived a shipment of shingles at Sisco, Wash., to be carried to Kankakee, 111. Defendant transported the same to Min- nesota Transfer in an ordinary box car and delivered the shingles to the connect- ing carrier, which road, without the knowledge of defendant initial carrier, transferred the shingles to open gondola cars and forwarded the cars to Kanka- kee. Thereafter, and before the arrival of the cars at Kankakee, plaintiff sold the shingles and, without notice to defend- ant, instructed the delivering carrier to divert the shipment to a point in New Jersey. HELD, the initial carrier was not liable for any damage to the shingles occurring while they were en route from Kankakee to the New Jersey point, for while the initial carrier by the Carmack amendment is liable for loss or damage caused by connecting carriers, that liabil- ity cannot be extended to lines beyond the destination fixed in the bill of lading. Parker-Bell Lumber Co. v. Great North- ern Ry. Co. (Wash. 1912), 124 P. 389, 390. §7. Intermediate Carrier. (a) Although the Carmack amend- ment to the Hepburn Act renders the ini- tial carrier liable for loss or damage to interstate shipments caused by its own or a connecting line, the connecting carrier Is also liable for the damage resulting from its negligence. Gibson & Draughn V. Little Rock & H. S. W. Ry. Co. (Ark. 1910), 124 S. W. 1033, 1034. (b) Under the Carmack amendment, making the initial carrier liable for loss or damage caused by its own or connect- ing carriers, the connectmg carrier is still liable if the damage results from its negligence, and there is still a presump- tion that the last carrier caused the in- jury. Gibson & Draughn v. Little Rock & H. S. W. Ry. Co. (Ark. 1910), 124 S. W. 1033, 1034. (c) Under the Carmack amendment, making the initial carrier liable for loss or damage caused by it or by a connect- ing carrier, both carriers are jointly liable for loss or damage occurring on the line of the connecting carrier, but no re- covery can be had of the connecting car- rier for loss or damage taking place, with- out its negligence, on the initial carrier's line. Otrich v. St. L. L M. & S. F. Ry. Co. (Mo. App.' 1911), 134 S. W. 665, 669. (d) Under the Carmack amendment of June 29, 1906, the initial carrier is lia- ble for damage to an interstate shipment arising from delay on its own line, but the intermediate carrier is not liable for this delay of the initial carrier, in the ab- sence of partnership relations between such carriers. Missouri, K. & T. Ry. Co. of Texas v. Stark Grain Co., 103 Tex. 542, 546, 131 S. W. 410. §8. Delivering Carrier. See Supra, §7 (b). (a) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to an interstate shipment caused by the connecting car- rier, does not prevent the shipper from recovering from the last carrier. Trade* well V. C. & N. W. Ry. Co. (Wis. 1912), 136 N. W. 794, 796. §9. Agreed or Restricted Valuation. See Advanced Rates, §6 (7); Re- leased Rates. (a) A carrier cannot escape the effect of the Carmack amendment, making the initial carrier liable for loss or damage occurring on the lines of connecting car- riers and forbidding exemption from such liability, by the fact that its contract of shipment was based upon a particular rate granted in consideration of such ex- emption. Central of Ga. Ry. Co. v. Sims, 169 Ala. 295, 302, 53 So. 826. (b) Under the Interstate Commerce Act as amended by the Hepburn Act, any contract limiting the liability of the car- rier for loss of property transported in in* 488 LOSS AND DAMAGE, §9 (c)— (1) terstate commerce to a specified maxi- mum amount is void. St. L. I. M. & S. Ry. Co. V. Pape (Ark. 1911), 140 S. W. 265, 267. (c) Under the Carmack amendment to the Hepburn Act, making the initial car- rier liable for loss or damage caused by it or connecting carriers and forbidding exemption from such liability, a provision in the shipping contract restricting liabil- ity in case of loss through negligence to a specified value is void and cannot be availed of as a defense in a suit against the connecting carrier. K. C. S. Ry. Co. V. Carl, 91 Ark. 97, 100, 121 S. W. 932. (d) Under the Carmack amendment, a limitation in the shipping contract of lia- bility for damage in transit arising from negligence will not be held to prevent the shipper from recovering damages based on the true value of the goods. S. P. Co. v. Crenshaw, 5 Ga. App. 675, 689, 63 S. E. 865. (e) The common law right to contract with respect to the value of an article to be transported upon the character and value of which a rate may depend, and the right to contract against loss beyond the carrier's control, are unaffected by the Interstate Commerce Act, though the contract must be fairly made upon a sufli- clent consideration, after the shipper has been given an opportunity to choose be- tween the common law right and rate and the limited liability, Pittsburgh, etc. Ry. Co. V. Mitchell (Ind. 1910), 91 N. E. 735, 740. (f) Where a state law provides that the carrier shall not in any way limit its liability for loss and damage, nothing in the Carmack amendment, making the ini- tial carrier liable for loss and damage on the lines of connecting carriers and for- bidding the exemption from such liability, supplants said state law so as to prevent the shipper from recovering the full value of the goods lost despite a limita- tion of liability to a specified sum in the bill of lading. Winn v. American Express Co. 149 la. 259, 271, 128 N. W. 663. (g) Where a carrier has filed sched- ules of interstate rates based on an arbi- trary limitation of value, the enforcement of a state statute forbidding all limitation of liability for loss or damage, so as to permit the shipper to recover on the basis of the full value of the goods, is not for- bidden on the ground that to permit such recovery would result in a departure from the published rates and would open the way for rebates. Cramer v. C. R. I. & P. Ry. Co. (la. 1911), 133 N. W. 387, 392. (h) Section 20 of the Act as amended June 29, 1906, making the initial carrier liable for loss occurring on the lines of connecting carriers, does not prevent the initial carrier from entering into an agreement with the shipper to limit the value of the goods transported, where the rates are graduated according to the value of the goods. Bernard v. Adams Express Co., 205 Mass. 254, 258, 91 N. E. 325. (i) Under the Carmack amendment, forbidding the initial carrier from ex- empting itself from liability for loss or damage caused by the connecting car- rier, the shipper may recover the full value of goods lost despite an agreed value in the shipping contract, unless the agreement as to value is fairly entered into and is just and reasonable. O'Con- nor V. G. N. Ry. Co. (Minn. 1912), 136 N. W. 743, 745. (j) Under the Carmack amendment to the Hepburn Act, making the initial carrier liable for loss caused by itself or by the connecting carrier and forbidding exemption from such liability, the car- rier is not prevented from limiting its liability for loss occurring on its own line to an agreed valuation made in good faith in consideration of the extension of a lower rate. McElvain v. Railroad, 151 Mo. App. 126, 153, 131 S. W. 736. (k) Where an interstate shipment was made prior to the passage of the Carmack amendment to the Hepburn law, the initial carrier might restrict its common law liability, as insurer, for a consideration such as a reduced rate of freight. Blackmer & Post Pipe Co. v. M. & O. R. R. Co. (Mo. App. 1909), 119 S. W. 1, 10. (1) Nothing in the Interstate Com- merce Act as amended June 29, 1906, pro- viding that the initial carrier shall be lia- ble for the losses occurring upon the lines of connecting carriers and that no contract shall exempt such a carrier, pre- vents a shipper from recovering the full value of the article injured despite a con- tract limiting liability to a specified value, where the state constitution and statutes prohibit such limitation. Miller v. C. B. & Q. R. R. Co., 85 Neb. 458, 466, 123 N. W. 449. LOSS AND DAMAGE, §9 (m)— (u) 489 (m) Where the law of a state forbids a carrier from limiting its liability for loss or injury to goods, due to its negli- gence, a shipper who secures the lower interstate rate published to apply to ship- ments under limited liability is not pre- vented from recovering for injury to goods on the basis of their true value on the ground that to permit such recovery would amount to allowing the prefer- ences forbidden by the Interstate Com- merce Act. Kissenger v. Fitzgerald, 152 N. C. 247, 252, 67 S. E. 588. (n' Upon delivery of an interstate shipment to defendant initial carrier, de- fendant issued a shipping receipt which stated that the company's charge was based upon the value of the property and the value must be declared by the ship- per, and that it should be taken to be not more than $50, unless the shipper stated a greater value. The shipper made no declaration of the value. The ship- ment was lost by the connecting carrier. HELD, under the Carmack amendment, making the initial carrier liable for loss occurring on the line of a connecting carrier and forbidding exemption from such liability, the shipper was entitled to recover only on the basis of the $50 value limited in the bill of lading. Flor- man v. Dodd & Childs Exp/ess Co. 79 N. J. L. 63, 66, 74 A. 446. (o) Under the Carmack amendment, making the initial carrier of an inter- state shipment liable for loss or dam- age caused by it or by connecting car- riers, and forbidding exemption by con- tract or otherwise from the liability im- posed, an initial carrier is not prevented from limiting the liability as to loss or damage on its own line, since the clause forbidding exemption refers only to ex- emption from loss or damage caused by the connecting carrier. Travis v. Wells, Fargo & Co., 79 N. J. L. 83, 86, 74 A. 444. (p) The purpose of the amendment of June 29, 1906, to section 20 of the Act was to render the initial carrier, in tue case of interstate transportation over connecting lines, liable to the lawful holders of its receipt or bill of ladii.g for any loss or injury to the property shipped, whether such loss or injury occurred after the goods had passed out of the hands of the initial carrier or not, and, furthermore, to prevent inter- state carriers from exempting th'-:- selves from liability for the loss of property or damage thereto when it had passed into the hands of another carrier to be trans- ported to its destination. The language of the enactment does not disclose any intent to abrogate the right of common carriers to regulate the cost of trans- portation for the carriage of goods or to agree with the shipper upon a valuation of the property carried. Greenwald v. Barrett, 199 N. Y. 170, 175, 92 N. E. 218. (q) While the Carmack amendment abrogates the common law rule, making each carrier liable only for damage oc- curring on its own line, and renders the initial carrier responsible for loss or damage caused by the connecting carrier, it does not prevent the initial carrier from limiting its liability to an agreed sura specified in the shipping receipt. Greenwald v. Weir, 130 App. Div. 696, 700, 115 N. Y. Supp. 311, reversing 59 Misc. 431, 111 N. Y. Supp. 235. (r) Under the Carmack amendment, making the initial • carrier of an inter- state shipment liable for loss or injury caused by the connecting carrier, and for- bidding exemption from such liability, a provision in a shipping receipt limit- ing the amount of liability to an agreed sum in the manner allowed at common law is invalid. Vigouroux v. Piatt, 62 Misc. 364, 3-69, 115 N. Y. Supp. 880. (s) Under the Carmack amendment, making the initial carrier of an inter- state shipment liable for loss or dam- age caused by connecting carriers, and forbidding exemption by contract from such liability, a provision in a shipping receipt limiting liability to the sum spec- ified therein to be an agreed amount between the parties is void. Schutte v. Weir, 59 Misc. 438, 440, 111 N. Y. Supp. 240. (t) Where a shipper merely keeps silent as to the value of goods tendered to a carrier and receives a shipping re- ceipt limiting the carrier's liability to a stated sum and reciting that the rate granted is based on the limited value specified, he is not guilty under section 10 of the Interstate Commerce Act of fraudulently securing transportation at less than regular rates so as to preclude his recovering for loss of the goods on the basis of their true value. Schutte v. Weir, 59 Misc. 438, 441, 111 N. Y. Supp. 240. (u) The servant of a shipper delivered a package for interstate shipment and upon being asked the value by the agent of the carrier stated that he did not know. The agent then stamped on the 490 LOSS AND DAMAGE, §9 (v)— §11 (a) shipping receipt, "Value asked and not given." The sliipping receipt limited the value to $50. A higher rate was in effect where the value exceeded that sum. The shipper proved at the trial that the true value of the goods was $350. HELD, in a suit under the Carmack amendment to recover for the loss of the goods, the shipper could not be denied recovery on the ground that he had been guilty of se- curing transportation by undervaluing the goods at less than the published rate. Wright v. Adams Express Co., 230 Pa. 635, G45, 79 A. 760. (v) Under the Carmack amendment, making the initial carrier liable for loss or damage to an interstate shipment caused by itself or connecting carriers, and forbidding exemption by contract from such liability, a stipulation in the bill of lading of a shipment of fruit trees limiting the liability of the initial car- rier to an agreed valuation of 3c a pound, is invalid. Drake v. Nashville C. & St. L. R. R. Co. (Tenn. 1911), 148 S. W. 214, 218. (w) The Carmack amendment, mak- ing the initial carrier liable for loss or damage caused by it or by connecting carriers, and forbidding exemption from such liability, does not make invalid a provision in a shipping receipt limiting liability to a stipulated, reasonable sum in view of the lower rate accorded. Lar- sen V. Oregon Short Line R. Co. (Utah 1910), 110 P. 983, 986. (x) The Interstate Commerce Act, as amended June 29, 1906, does not pro- hibit an interstate carrier from limiting the amount of its liability for loss, dam- age or injuries to property intrusted to it for shipment by an agreement with the shipper as to the value thereof, en- tered into in good faith, or procured by a misrepresentation on the part of the shipper as to the value thereof. Fielder & Turley v. Adams Express Co. (W. Va. 1911), 71 S. E. 99. §10. Common Law Liability. (a) In the absence of legislation a carrier, unless there be a special con- tract, is only bound to carry over its own line and then deliver to a connect- ing carrier. A. C. L. R. R. Co. v. River- side Mills, 219 U. S. 186, 197, 31 Sup. Ct. 164, 55 L. ed. 167. (b) Where an initial carrier contracts to carry over the whole route its com- mon-law carrier liability extends over its entire route. A. C. L. R. R. Co. v. River- side Mills, 219 U. S. 186, 197, 31 S. Ct. 164, 55 L. ed. 167. (c) Where goods have been appro- priated by the initial carrier, the liabil- ities are the same under the general law as they would be under the Carmack amendment to the Hepburn Act. Central of Ga. Ry. Co. v. Dowe, 6 Ga. App. 858, 65 S. E. 1091. (d) In a suit against an express com- pany for the death of a hog in transit the plaintiff cannot further found his claim on the theory that he had a special contract by which the defendant agreed to haul the animal to the cars in a single covered wagon. Where such spe- cial services are not provided for in the published tariffs the carrier is forbid- den by the Interstate Commerce Act to extend to any shipper privileges or fa- cilities not specified in the tariffs. Winn V. American Express Co., 149 la. 259, 269, 128 N. W. 663. (e) Under the Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage caused by it or by connecting carriers, and for- bidding exemption from such liability, the scope of the word "caused" is co- extensive with the full measure of a car- rier's common law liability, and the in- itial carrier cannot, by stipulation in a shipping contract, release itself from any part of its common law liability. Holland V. C. R. I. & P. Ry. Co., 139 Mo. App. 702, 722, 123 S. W. 987. (f) Leaving out of account the pro- vision of the Act making the initial car- rier liable for the default of connecting carriers, the mere designation of the destination of the goods in the contract with the first carrier will not make it a contract for through transportation where the other terms indicate a limitation of liability to the end of the first carrier's line. Reid v. Southern Ry. Co., 153 N. C. 490, 496, 69 S. E. '618. §11. 'Notice of Loss. (a) Under the Carmack amendment, making the initial carrier of an inter- state shipment liable for loss or dam- age caused by itself or connecting car- riers, a provision in the shipping con- tract requiring the shipper to present a claim in writing for loss or damage to the carrier at the point of shipment or delivery within four months after deliv- LOSS AND DAMAGE, §11 (b)_§12 (c) 491 ery is not invalid. A. C. L. R. R, Co. v. Ward (Ala. 1912), 58 So. 677, 678. (b) A stipulation in a shipping con- tract requiring the shipper to make claim at the point of delivery or at the point of origin for loss, damage or delay within four months after delivery of the prop- erty is not invalidated by the Carmack amendment, making the initial carrier liable for loss or damage caused by it- self or connecting carriers and forbid- ding exemption by contract from such liability. C. R. I. & P. Ry. Co. v. Wil- liams (Ark. 1912), 142 S. W. 826, 827. (c) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage caused by con- necting carriers, and forbidding exemp- tion from such liability, does not invali- date a stipulation in the bill of lading for a shipment of peaches that the shlp- .per shall give notice of loss or damage to the delivering carrier within thirty hours after delivery. St. L. & S. F. R. R. Co. v. Keller, 90 Ark. 308, 316, 119 S. W. 254. (d) The Carmack amendment to the Hepburn Act, forbidding the initial car- rier to exempt itself from liability for loss or damage to an interstate shipment caused by itself or a connecting carrier, does not render invalid a stipulation in the bill of lading that as a condition precedent to recovery the shipper must give notice of the claim within a reason- able time. St. L. I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404, 411, 117 S. W. 517. (e) A shipping receipt for an inter- state shipment of horses provided V : t, as a condition precedent to recovery, the shipper must give notice of any injury be- fore removing the horses to some general officer, claim agent or station agent, and should serve same within one day after arrival at destination. HELD, the pro- vision was void, as conflicting with the Carmack amendment, making the initial carrier liable for loss caused by its own or a connecting line, and forbidding ex- emption from such liability. McKinstry V. C. R. L & P. Ry. Co. (Mo. 1911), 134 S. W. 1061, 1063. (f) The Carmack amendment, making the initial carrier liable for loss or in- jury caused by the connecting carrier and forbidding exemption from such liability, does not prevent the initial carrier from enforcing the reasonable rule in its ship- ping receipt, requiring notice of loss or damage to be given by the shipper within sixty days after date of shipment. Vig- ouroux V. Piatt, 62 Misc. 364, 371, 115 N. Y. Supp. 880. (g) Under the Carmack amendment, forbidding the initial carrier from ex- empting itself from liability for loss or damage occurring on lines of its con- necting carriers, a clause in the shipping contract which requires the shipper, as a condition precedent to recovery, to no- tify some general officer, claim agent or station agent of the loss or injury to stock en route when discovered and be- fore the cattle are mingled with other stock, and, in any event, within one day after delivery of the stock at destina- tion, is not invalid as being in conflict with the amendment mentioned, where said rule of notice is deemed reasonable and is authorized by the laws of the state governing the shipping contract. C. R. I. & P. Ry. Co. V. Rich (Tex. 1911), 138 S. W. 223. §12. Settlements and Rights Inter Se. (a) Where in a suit against the initial and the connecting carrier of an inter- state shipment for delay and damage to goods the complaint is dismissed with plaintiff's consent as to the latter car- rier the initial carrier may still be prose- cuted and recovery had against it under the Carmack amendment, making such carrier liable for loss, damage or in- jury caused by subsequent carriers. Shid- lovsky V. Mallory S. S. Co., 60 Misc. 67, 68, 111 N. Y. Supp. 778. (b) Under the Carmack amendment of June 29, 1906, making the initial car- rier liable for damage caused by the con- necting carrier and allowing the former to recover of the latter for the amount of the judgment secured by the shipper, the initial carrier cannot so recover when it delivers cattle in an injured condition to the connecting carrier and thero is no evidence to show that the damage sus- tained by the shipper was caused by the connecting carrier. M. K. & T. Ry. Co. V. Jarmon (Tex. Civ. App. 1911), 141 S. W. 155, 156. (c) An interstate shipment passed over the lines of five connecting carriers. Plaintiff sued the initial carrier for dam- age to the goods. After the institution of the action it entered into an agree- ment with the last two connecting car- riers that it would not further prosecute its suit against them and would protect them against the suit of anyone else, in 492 LOSS AND DAMAGE, §12 (d)— MARINE INSURANCE (a) consideration of the payment of $275. HELD, under the Carmack amendment of June 29, 1906, the initial carrier could not be deprived by this indemnity agree- ment of its right to recover the amount of any judgment paid by it against the two indemnified carriers, in case such carriers caused the damage. Carlton Produce Co. v. Velasco B. & N. Ry. Co. (Tex. Civ. App. 1910), 131 S. W. 1187, 1188. (d) An interstate shipment passed over the lines of five carriers. Plaintiff sued the initial carrier for damage to the goods. After the institution of the action it entered into an agreement with the last two connecting carriers that it would not further prosecute its suit against them and would protect them against the suit of anyone else, in con- sideration of the payment of $275. HELD, in case the damage was caused by the two indemnified carriers the plaintiff could not recover of defendant initial carrier, since the defendant could then recover of the two indemnified carriers and the latter could in turn obtain judg- ment on the indemnifying contract against the plaintiff; but it was not so estopped if the damages occurred on other lines than on those of the two in- demnified carriers. Carlton Produce Co. V. Velasco B. & N. Ry. Co. (Tex. 1910), 131 S. W. 1187, 1188. §13. Special Damages. (a) Although under the Carmack amendment, making the initial carrier of an interstate shipment liable for loss or damage caused by it or connecting car- riers and forbidding exemption by con- tract from such liability, the initial car- rier cannot refuse to accept a shipment or exact a special charge for the extra risk, and is liable for special damages for delay, where it is notified at the time of tender of the shipment that such damages are likely to arise if the ship ment is not promptly carried. C. R. I. & P. Ry. Co. V. Planters' G. & O. Co., 88 Ark. 77, 85, 113 S. W. 352. III. EVIDENCE. §14. Acts of Connecting Carrier. (a) Inasmuch as the initial carrier is liable under the Carmack amendment for Injuries caused to cattle by its con- necting carriers, evidence of injuries done them by such carriers is admissible to prove the extent of such liability. Pecos & N. T. Ry. Co. V. Crews (Tex. 1911), 139 S. W. 1049, 1051. §15. Burden of Proof. See Evidence, I. (a) Under the Carmack amendment, when the holders of the bills of lading prove the goods have not been delivered to the consignee, the presumption arises that they have been lost by reason of the neglect of the carrier or its agents, and the burden of proof that the loss resulted from some other cause for which the initial carrier is not responsible in law or by contract is then cast upon the carrier. Galveston, H. & S. A. Ry. Co. V. Wallace, 223 U. S. 481, 492, 32 Sup. Ct. 205, 56 L. ed. 516. §16. Judicial Notice. See Evidence, III. (a) The Carmack amendment to the Hepburn Act, making the initial carrier liable for loss or damage to goods on its own line or the lines of connecting car- riers, and forbidding exemption by con- tract from such liability, is a law of gen- eral operation in Georgia and is to be given effect as such by the courts of the state. S. P. Co. v. Crenshaw, 5 Ga. App. 675, 680, 63 S. E. 865. (b) A state statute provided that "neither the evidence relied on by a party nor presumptions of law, nor facts of which judicial notice is taken, except- ing private statutes, shall be stated in the pleadings." HELD, in a suit against an initial carrier to recover for damage to an interstate shipment caused by the connecting carrier it was not necessary for the plaintiff to plead the Carmack amendment in order to avail himself of the benefit thereof. L. & N. R. R. Co. v. Scott, 133 Ky. 724, 727, 118 S. W. 990. MARINE INSURANCE. (a) In 13 L C. C. 258, defendants were directed to either restore former rates On lake traffic or to incorporate in their tariffs the following provision: "While shipments carried under this tariff are water borne between lake ports on the vessels of a lake-line party hereto the lake carrier and the rail carrier deliv- ering the property to the lake carrier jointly assume liability for loss or damage to said shipments caused by marine per- ils, to-wit: Of the seas and lakes, fire, collision, stranding, jettisons, pirates, as- sailing thieves and barratry of the mas* MARKING AND ADDRESSING— MINIMUMS, §1 (b) 493 ter or mariners, excluding risks of riots, war or insurrection; any loss from said marine perils for which the lake line and the rail line delivering to the lake line are liable hereunder to be paid in sixty days after proof of loss and proof of interest in said property are furnished said company." Defendants were also directed to incorporate said provisions in their bills of lading. Complainants attacked the provisions of said tariffs upon petitions for rehearing as follows: (a) The tariff provision only covered perils of the sea while traffic was being borne from port to port upon the Great Lakes and the liability of the carrier should be extended to all water trans- portation, including canals and rivers. (b) The tariff provision should specify as one of the perils of the sea "general average charges and expenses for which the owner may under the maritime law be chargeable." (c) Loss should be pay- able in thirty instead of sixty days, (d) The phrase "between lake ports" did not give the shipper indemnity while the vessel was lying at the port, and the words "at and between'' should be used instead of "between." (e) Said tariff contained no provision protecting goods after they were loaded upon the dock, (f) Tariff should contain the provision found in marine policies, to the effect that in case of loss settlement should be upon the basis of the invoice price plus 10 per cent, (g) Liability should be joint and several, instead of joint, (h) If the shipper sees fit to place insurance on his own account the fact that the carrier has also placed insurance uppn this same property would, in the event of loss, either avoid the insurance of the shipper altogether or require him to accept a proportionate share of the amount in- sured, (i) The tariff should contain in- demnity against "and all other perils or misfortunes that have or shall come to the hurt or damage of said property or any part thereof," instead of containing merely the words "perils of the sea." HELD, complainants' demands under (a), (c), (e), (f) and (h) should be de- nied. With respect to (e) the shipper would be protected as to goods upon the dock until a reasonable opportunity was afforded him to remove his property. As to (h) the shipper would be suf- ficiently protected by said tariff provision without the aid of this insurance. De- mands (b), (d), (g) and (i) should be granted. Defendants ordered to incor- porate the provisions of said tariff in their bills of lading. Wyman, Partridge & Co. V. B. & M. R. R., 15 L C. C. 577, 578-583. MARKING AND ADDRESSING. See Classification, §14. MEETING RATES. See Equalization of Rates, §4 (2) (o). MILEAGE SCALE. See Evidence, §20 (p), §58, §59; Pas- senger Fares and Facilities, §6, §32 (a); Reasonableness of Rates, §10 (g), §25 (c), §28 (c), §37 (a), §41 (a), §104 (a), §118 (b); Tariffs, §7 (ss), §14 (b). MINIMUMS. I. APPLICATION OF MINIMUM. §1. In general. §2. Effect of not publishing. §3. Furnishing car of minimum or- dered. §4. Larger car furnished than or- dered. §5. Minimum higher than car ca- pacity. §6. Mixed carloads. §7. Reasonableness. §8. Two cars for one ordered. CROSS REFERENCES. See Cars; Loading and Unloading; Refrigeration, §6; Weights and Weighing. I. APPLICATION OF MINIMUM. §1. In General. See Reparation, §8 (f) ; Tariffs, §3 (2) (I), §7 (ggg). (a) If collapsible bunker cars are presented for loading with the bunkers thrown up, carriers may by their tariffs fix such minima as will require the loading of these cars to their full ca- pacity, not, however, exceeding two tiers in height. In Re Advances on Lemons, 23 I. C. C. 27, 30. (aa) A mere increase in a minimum formerly 15,000 lbs. to 20,000 lbs. can- not be said to be an advance in the rate where no additional burden is placed on the shipper. In Re Trans- portation of Wool, Hides and Pelts, 23 1. C. C. 151, 158. (b) The actual cost of transportation is much less with a loading of 28,000 lbs. than with a loading of 15,000 to 494 MINIMUMS, §1 (bb)— (jj) 20,000 lbs. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 158. (bb) There are greater car earnings under a lower rate with a higher mini- mum than under a higher rate with a lower minimum. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 167. (c) No practical hardship would be imposed upon shippers of wool by re- quiring a loading of at least 24,000 lbs. of sacked wool into a standard car 36 feet long, and the minimum might prop- erly be increased with the increase of the size of the car. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 165. (cc) The minimum on wool in sacks might properly be increased with the increase of the size of the car. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 165. (d) At the present time on the transcontinental lines it is in the inter- est of both shipper and carrier to se- cure the heaviest possible loading. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 167. (dd) An increased loading, which re- sults in decreased cost of transporta- tion, may well justify a lower rate for a higher minimum. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 167. (e) Market conditions frequently dic- tate the quantity of a given commodity a jobber may handle, but it is often to the shipper's interest to have a high minimum with a low rate. Du Pre Co. v. B. R. & P. Ry. Co., 23 I. C. C. 226, 228. (ee) Since the loading and unload- ing are done by shippers in both in- stances, the dilTerence in the length of mine-prop logs and saw logs becomes of minor importance as a transporta- tion consideration. Rickards v. A. C. L. R. R. Co., 23 I. C. C. 239, 240. (f) The minimum weight and the rate are united. Sunderland Bros. Co. V. St. L. & S. F. R. R. Co., 23 I. C. C. 259, 261. (ff) The question of minimum weights on light and bulky articles is a vexed one, because of wide differences in cu- bical capacities of cars. Much attention has been given to it by carriers and much has been done toward harmonizing the difficulties. The minimum weight upon the basis of which charges are assessed is nearly, if not quite, as im- portant as the classification rating of the commodity. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 104. (g) Minimum weights on all carload shipments are to be considered as part of the rate. Lull Carriage Co. v. C. K. & S. Ry. Co., 19 I. C. C. 15, 16. (gg) The minimum carload weight is a factor in the carload rate, and in con- nection with the rate per 100 lbs. de- termines the carload earnings. Any re- duction in the minimum weight without an increase in the rate per 100 lbs. would, therefore, reduce the carload earnings of the carrier and would be equivalent to a reduction in the rate itself. Georgia Fruit Exchange v. S. Ry. Co., 20 I. C. C. 623, 630. (h) A minimum as high as the prod- uct can be carried under the most ad- vantageous circumstances, with a com- paratively low rate is, it seems, best for the shipper. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 517. (hh) It is in the interest of economical transportation that cars containing light and bulky articles should be loaded as heavily as possible, and it is equally plain that a carrier can afford, to an extent, to decrease its rates in proportion as the loading increases. Montague & Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 75. (ii) It is not possible to fairly adjust a rate without a proper adjustment of the minimum. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 75. (j) A tariff prescribing the same mini- mum for cars of different capacities is not per se unlawful, since when loaded with certain kinds of commodities the minimum may easily be loaded in a car of any length. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 76. (jj) A minimum may be established which shall protect the carrier against being required to haul its car for less than a fair compensation, and so long as the combination of rate and minimum in a particular case does not yield to the railway more than a just sum for the transportation of the car the minimum is not unlawful. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 75. MINIMUMS, §1 (k)— §2 (a) 495 (k) It is not practical to eistablish a minimum for each kind of furniture; uor could such minimums, if established, be made available, sinc8 the consignee fre- quently, and perhaps usually, desires to put different sorts of furniture into the same car. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, \ .. (kk) There should be a relation be- tween the minimum and the physical ca- pacity of the car, which means that the minimum might properly increase as the size of the car increases. Pease Bros. Furniture Co. v. S. P. L. A. & S. L. R. R. Co., 17 I. C. C. 223, 224. (I) Lower rates should be applied on higher carload minimum. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 70. (II) A high minimum and low rate automatically adjust themselves to the needs of the shipper, while returning to the carrier the same revenue per car. Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 109. (m) Complainant attacked the mini- mum of 24,000 lbs. on refrigerator cars of apples from the Ozark fruit region. It admitted that 24,000 lbs. could be safely loaded, but that such quantity could not be advantageously marketed. HELD, the carrier has the right to es- tablish a minimum on carload shipments as high as will permit the commodity to be safely carried without injury. No duty rests upon it to establish this mini- mum at such an amount as the consignee decides is advantageous for him, but it should be established with relation to the capacity of the car. Ozark Fruit Grow- ers' Ass'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 134, 136. (mm) Where earnings per car at a less rate on a high minimum is nearly the same as earnings at a higher rate on a less minimum, the Commission is not justified in reducing the higher rate. La Salle Paper Co. v. Mich. Cent. R. R. Co., 16 L C. C. 149, 150. (n) Water competition may justify a difference in carload minimums and in the right to combine different commodi- ties at the carload rate. City of Spokane V. N. P. Ry. Co., 15 I. C. C. 376, 389. (o) The maximum or minimum weight of a carload is not something affecting the rate, but is in fact a part of the rgte; a factor which is just as essential to a correct statement of the rate as is the rate per 100 lbs. itself. Rail & River Coal Co. V. B. & O. R. R. Co., 14 I. C. C. 86, 90. (p) While uniformity in the matter of car minima on the same commodity is highly desirable, and while the con- clusion reached by the Commission in one case touching the reasonableness of a rule or regulation affecting rates ought ordinarily to afford a guide in another case in which the same rule or regula- tion is involved, nevertheless reasonable- ness is ordinarily a question of fact to be decided upon the record in the pro- ceeding in question and upon such inde- pendent investigation as the Commission may make. Conclusions of fact arrived at in one case between one set of liti- gants need not necessarily be accepted by the Commission as constituting a prec- edent to be followed as a binding au- thority in a subsequent proceeding be- tween another group of litigants without regard to the record in the subsequent case and the facts that it may establish. Kansas City Hay Dealers' Ass'n v. M. P. Ry. Co., 14 I. C. C. 597, '600. (q) Where a rate itself is not attacked and the evidence indicates that it is low and the traffic involved is not desirable to the carriers, a shipper will not be per- mitted to gain a reduction therein in- directly by securing a lower car mini- mum. Kansas City Hay Dealers' Ass'n v; M. P. Ry. Co., 14 I. C. C. 597, 603. (r) Carriers are under obligation to establish and maintain reasonable mini- mum weights for carload shipments, and, when lawfully published, the pre scribed minimum is as much an integral part of the tariff as is the rate; both must be strictly observed by carriers and shippers alike, and the Commission can set aside neither except upon satis- factory proof of the unreasonableness thereof. Kaye & Carter Lumber Co. v. N. P. Ry. Co., Unrep. Op. 392. §2. Effect of Not Publishing. (a) On sacks of Portland cement weighing 38,000 lbs. from Chanute, Kan., to Denison, la., a joint rate of 10c to Council Bluffs and a local rata of 4.9c thence to destination were collected, no through rate being in effect. Defendant initial carrier's tariff failed to provide a carload minimum for the 10c rate to Council Bluffs. The delivering carrier established, by a tariff published subse- 496 MINIMUMS, §3 (a)— (g) quently to that of the initial line fixing the 10c rate, a minimum of 40,000 lbs. HELD, the 10c rate to Council Bluffs should be assessed on the actual weight of shipment. When a car is demanded and loaded by the shipper and is tendered and otherwise delivered as a carload, and no minimum carload weight is le- gally provided, the carload rate, if it makes less than the less-than-carload rate, must be applied on the actual weight, whether the actual weight of shipment be more or less than an ordi- nary carload quantity. Sunderland Bros. Co. V. M. K. & T. Ry. Co., 18 I. C. C. 425, 426. §3. Furnishing Car of Minimum Ordered. See Cars and Car Supply, §8. (a) Where a carrier by its tariffs es- tablishes particular minima as appli- cable to cars of given dimensions, it must furnish a car of the size provided for in its tariff and ordered by the shipper; or, in case of its inability to do this, it must provide other equipment under such conditions as to fairly protect the mini- mum of the car ordered, and its tariffs should contain a provision to that ef- fect. Noble v. B. & O. R. R. Co., 22 I. C. C. 432, 438. (b) It is not unreasonable for car- riers to provide that the minimum ap- plicable to a special car would not be protected unless carrier had failed for six days, excluding the day of notice, to furnish a car of the size ordered; but this is not intended to relieve carriers from duty of furnishing equipment with- in reasonable time. It simply fixes a definite period beyond which the duty to furnish other equipment in lieu of that ordered shall attach. Noble v. B. & O. R. R. Co., 22 I. C. C. 432, 438. (c) Shippers desiring to use equip- ment of unusual size may be required to give a considerable notice of such desire, and it would be reasonable to provide that a minimum should not be protected unless the carrier has failed for six days, excluding the day of notice, to furnish the car ordered. Noble v. B. & O. R. R. Co., 22 I. C. C. 432, 438. (d) On a shipment of 66,000 lbs. of dried pease, known as garbanzo, packed in 300 sacks and shipped in two cars of minimum capacity of 40,000 lbs, each, which were furnished by the initial car- rier for its convenience, instead of one car of minimum capacity of 60,000 lbs. and carrying under the rules of the de- fendants 66,000 lbs., and which were in the possession of the initial carrier and expressly ordered for said shipment by the complainant, the defendants collected 75c on a basis of 80,000 lbs. Though not in force at the time of shipment a rule of the tariffs in effect at the time of the hearing provided in substance that under circumstances such as the foregoing the carrier might furnish two smaller cars on the basis of the minimum weight fixed for the car ordered. HELD, that the total charges should have been collected on the basis of 66,000 lbs. Reparation awarded. Maldonado & Co. v. Ferrocar- ril de Sonora, 18 I. C. C. 65, 67. (e) Although a box car fifty feet in length is not an ordinary car within the meaning of rules, still if one of that length happens to be available and in use for less-than-carload shipments, and such a shipment is actually loaded into it, it is unreasonable to assess charges on the basis of a minimum weight in ex- cess of the actual weight, under a rule providing that such minimum shall be assessed when the articles are too long to be loaded into the side door of a thirty-six-foot box car. Jones v. South- ern Ry. Co., 18 L C. C. 150, 153. (f) Defendants' tariff prescribed a minimum of 16,000 lbs. on carloads of wood mantels without making any dis- tinction as to the size of cars. Com- plainant was furnished a fifty-foot car and the actual weight of the shipment was 14,580 lbs. It did not appear that he needed a fifty-foot car, nor that the car was filled to its capacity, nor that he ordered or could use a car of that length. Since the shipment the Com- mission in Montague & Co. v. A. T. & S. F. Ry. Co.. 17 I. C. C. 72, prescribed a 14,000-lb. minimum for a forty-foot car. Complainant was assessed on a minimum of 16,000 lbs. It might have adopted a sliding scale by which the minimum ap- plicable to the car furnished complainant would have exceeded the minimum for which charges were imposed, but they had not elected to do so and were fur- nishing to shippers cars of different sizes. HELD, the charges were unrea- sonable. Reparation awarded on the basis of actual weight. (Clark, Clements and Lane, Comm'rs, dissenting.) Peer- less Agencies Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 218. (g) While a long course of dealing between the shipper and the carrier, in- MINIMUMS, §3 (h)— §4 (a) 497 volving daily or frequent shipments of automobiles from a definite station, might so familiarize the carrier's agents at that point with the requirements of the ship- per in the way of equipment as to justify a holding that an order for a car for three automobiles was sufficient to charge the carrier with notice that a thirty-six foot car was wanted, such a relationship between shipper and carrier must be clearly made out before reparation can be awarded on that basis for the exac- tion by the carrier of the minimum for a larger car than the one alleged to be ordered. Pope Mfg. Co. v. B. & O. R. R. Co., 17 I. C. C. 400, 403. (h) When shippers order cars for-par- ticular movements in which dimensions are important because of the graded minimum weights usually applicable to cars of different lengths, the order should be in writing, or if not actually given in writing should be promptly and definitely confirmed in writing. Pope Mfg. Co. v. B. & O. R. R. Co., 17 I. C. C. 400, 403. (i) On shipments of cattle from South St. Paul to Hammond, Ind., complainants ordered ten thirty-six-foot stock cars. De- fendant carriers at South St. Paul, for their convenience, furnished seven thirty- three-foot cars, two forty-four-foot cars and one thirty-six-foot car. The shipments were received by complainants' repre- sentative at Blue Island, 111., and the cattle were there unloaded by him and reloaded into the same cars for ship- ment from Hammond, Ind., to Philadel- phia. Complainants made out bills of lading at South St. Paul for the reship- ment of the cattle from Hammond to Philadelphia, mailed the same to their representative at Blue Island, who gave the billing instructions to a representa- tive of the Indiana Harbor Belt Ry. at that point, who in turn gave them to the agent of the Indiana Harbor Belt at Hammond, who rebilled the shipments to Philadelphia. Complainants' repre- sentative at Blue Island did not inform the Pennsylvania Co. receiving the ship- ments at Hammond that they required ten cars of certain dimensions, and that road assessed charges on the basis of 260,000 lbs., the minimum for thirteen cars, instead of 200,000 lbs., the mini- mum for ten cars. HELD, complainants having failed to notify the Pennsylvania Co. the shipment required ten cars, were not entitled to reparation. Slimmer & Thomas Co. v. Penn. Co., 16 I. C. C. 531, 533. (j) Where neither the bill of lading nor the waybill bears any notation indi- cating that a car of a particular size was ordered by the shipper, and neither the complainant nor any other witness states definitely that the order given for the shipment required the defendant carrier to furnish a car of small capacity, and where no other evidence that such equip- ment was made is offered, rep- aration will not be granted for charges assessed on the minimum of a larger car than the one complainant alleges he ordered. Wheeler Lumber, Bridge & Supply Co. V. S. P. Co., 16 I. C. C. 547, 548. §4. Larger Car Furnished Than Ordered. See Weights and Weighing, §3 (k), §10 (e). (a) A supplement to a tariff of the B. & O. R. R. Co. provided that certain lumber and forest products should take a minimum of 30,000 lbs. for cars over thirty-six feet and 24,000 lbs. for cars under thirty-six feet. Complainant ap- plied for a thirty-three-foot car in which to ship elm hoops. After six days he accepted a thirty-six foot car. His ship- ment weighed 20,100 lbs., but he was charged on a minimum of 30,000 lbs. The Commission held in 20 L C. C. 172 that complainant was entitled to a thirty- three-foot car; that defendant having furnished the larger car for its own con- venience, the minimum of the smaller car should be applied, and that the tariff was unreasonable in not containing that provision, and awarded reparation to the complainant and ordered the incorpora- tion of a proper rule in the tariff. The defendant filed a petition for rehearing, based upon the fact that the B. & O. R. R. operating in Official Classification ter- ritory is subject to a provision that the minimum shall be protected in such in- stances, except where a car more than forty feet six inches in length is fur- nished, in which case the minimum of the car furnished must be applied, and that if it should be compelled to abro- gate this rule it would necessitate similar action by all its . competitors. HELD, that in all cases where the carrier by its tariff established particular minima as ap- plicable to cars of given dimensions, it must furnish a car of the size provided for and ordered by the shipper, or pro- vide other equipment under such condi- tions as to fairly protect the minimum of the car ordered. Prior report modi- 498 MINIMUMS, §4 (b)— (f) fled. Noble v. B. & O. R. R. Co., 22 I. C. C. 432, 438. (b) On carloads of farm and freight wagons from Toledo, O., to Smith ville, Tex., the initial carrier supplied a forty- five-foot car, when the complainant or- dered a thirty-six-foot car. Complainant was charged the minimum weight ap- plicable to the car furnished. Defendant stated that a car of the size ordered was unavailable, and that a forty-foot car was ordered, but by mistake a forty-f /e-foot car was used, and offered to refund upon the basis of a forty-foot car. HELD, that the initial carrier should establish for the future a rule to the effect that when a car of the capacity or dimensions or- dered cannot be furnished after six full days' notice, and a larger car is furnished, such larger car shall be used on the basis of the minimum weight fixed in the tariff for the car which was ordered, provided the shipment could have been loaded upon the cars ordered. Reparation granted. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 511. (c) Complainant ordered cars of 40,000 lbs. capacity for shipments of brick, but cars of 60,000 lbs. capacity were furnished for the convenience of the carrier. The shipments weighed less than 50,000 lbs. to the car, but were assessed on a minimum of 50,000 lbs., as specified in the tariff. A reference mark annexed to the Item in the tariff specifying the minimum weight referred to a foot-note which read, "except when the marked capacity of the car is less, in which event the marked capacity of the car will govern." HELD, the pre- cise meaning of this rule in relation to the prescribed minimum weight of 50,000 lbs. is ambiguous and uncertain. It does not indicate under what circumstances a smaller car may be used, whether upon order from the shipper for a car of less capacity, or whether at the will and for the convenience of the carrier. If the latter, it is obviously improper, since under such a rule it might happen that one shipper would always be furnished with cars of 50,000 lbs. capacity or greater, and be obliged to pay freight on that minimum when his shipments, as in this case, might run several thousands under the minimum. On the other hand, it might happen that another shipper would for the convenience of the car- rier or otherwise be always furnished with cars of less capacity and accordingly be required to pay on the lower minimum, or only on actual weight if greater than such lower minimum. Manifestly it can- not be claimed that the rule fixed an in- variable or even a definitely ascertain- able minimum weight relative to the rates named. The tariff does not con- tain elscAvhere within itself an absolute rule, nor does it refer to any other tariff wherein an absolute rule is published. In both cases the fact that the shipper had ordered a smaller car was noted on the bill of lading. Reparation awarded for excess of rate above actual weight of shipment. Hull & Co. v. M. P. Ry. Co., 21 I. C. C. 486. (d) Complainant demanded repara- tion on a shipment of coiled elm hoops from Creston, O., to Windsor Shades, Va. The shipment moved on June 18, 1909. June 12, a thirty-four-foot car was or- dered of the railroad agent at Creston and if furnished the shipment, which weighed 20,100 lbs., would have moved subject to a minimum of 24,000 lbs. Shipper could not secure the car ordered and on June 18 was compelled to use a thirty-six-foot car to which was ap- plicable a 30,000-lb. minimum. A thirty- four-foot car was received at Creston June 19. Creston is a small local sta- tion and defendants contended that rea- sonable notice for this kind of a car would be a week or ten days. HELD, that under Rule 66 of Tariff Circular 1/-8A it is the duty of carriers to prompt- ly furnish cars on order, which was not the fact in this case; that where car- riers cannot promptly furnish equipment of the capacity ordered tariff should pro- vide that if a car of a different capacity is furnished such car might be used upon the basis of the minimum fixed for the car which was ordered. Reparation awarded on 6,000 lbs., the difference be- tween the minimum of a thirty-four-foot car and the car furnished. Noble v, B. & O. R. R. Co., 20 L C. C. 72. (e) Where the carrier furnishes a larger car than what the shipper orders and the traffic contains no provision as- sessing charges upon the basis of a mini- mum for the car ordered, reparation should be awarded for such failure. Noble V. B. & M. R. R. Co.. 20 I. C. C. 72. (f) Where a shipper orders a car of specified length and the carrier supplies one of larger dimensions, the shipper is entitled to charges assessed on the actual weight of the shipment where the weight exceeds the minimum of the kind of car ordered, but is less than that of the one MINIMUMS, §4 (g)— (p) 499 furnished, despite the fact that at the time of the shipment the carrier had no published rule to that effect where the shipment actually moved could have been loaded into the car ordered. Rep- aration awarded on shipment of cedar posts from Hines, Minn., to Benton, Neb., where the shipper ordered a thirty-three- foot car, was furnished a thirty-four-foot car and assessed on the thirty-four-foot car minimum. Kaye & Carter Lumber Co. V. M. & I. Ry. Co., 17 I. C. C. 209, 211. (g) A fifty-foot car was furnished, with a mimimum of 16,000 lbs.; actual weight of shipment was 14,580 lbs., and charges were based on 16,000 lbs. mini- mum; car was not loaded to full capacity and forty-foot car could have held ship- ment. HELD, as applied to this shipment (wood mantels) 14,000 would have been a reasonable minimum. (Clark, Comm'r, dissenting.) Peerless Agencies Co. v. A. T. & S. F. Ry. Co., 17 1. C. C. 218. (h) The tariffs of a defendant are un- reasonable and unlawful in failing to pro- vide that, when a larger capacity car is furnished instead if the smaller, yca- pacity demanded, the minimum appli- cable to the smaller capacity car should be observed. Beggs v. Wabash R. R. Co., 16 L C. C. 208. (i) Complainant, for carload ship- ments of anthracite coal from Superior, Wis., to points in North and South Da- kota, ordered cars of 40 000 lbs. capacity. Defendants, for their own convenience, furnished cars of 60,000 lbs. capacity and charged on the basis of the minimum for such 60,000-lb. cars, instead of upon the actual weight of the shipments, which exceeded the minimum required for the 40,000-lb. capacity cars. HELD, com- plainant was entitled to reparation on the basis of actual weight. Hanna Coal Co. V. N. P. Ry. Co., 16 L C. C. 289. (j) Defendant, for its own conven- ience, having furnished an 80.000-lb. car when complainant had ordered one of GO 000 lbs., the latter is entitled to have charges on sulphide of iron from Pu- laski. Va., to Edgewater, N. J., assessed on the basis of the smallar minimum. General Chemical Co. v. N. & W. Ry. Co., 15 L C. C. 349, 350. (k) If, upon reasonable demand, a carrier cannot supply a car of the size ordered it is its duty to accept shipment and move it in any available car, ap- plying a rate on the basis of the marked capacity of the car ordered. General Chemical Co. v. N. & W. Ry. Co., 15 I. C. C. 349. (1) Where, under a tariff naming a rate with the minimum to be the marked capacity of the car, a car of a particular capacity is not available upon the reason- able demand of the shipper, the carrier must nevertheless accept and carry the shipment in any car or cars available, assessing the charges on the basis of the marked capacity of the car de- manded. General Chemical Co. v. N, & W. Ry. Co., 15 I. C. C. 349, 350. (m) On a shipment of lumber weigh- ing 39,500 lbs. from Paper Mills, Ore., to Queen Junction, Pa., complainant ordered a car of 40,000 lbs. capacity and was furnished one of 80,000 lbs. capacity. He protested at the time of loading and was advised by the de- fendants' representative to go ahead and take up the matter of the charge later. He was assessed on the basis of the minimum of 60,000 lbs. for a car of 80,000 lbs. capacity. Under their published tariff defendants offered cars of 40,000 lbs. capacity, but were unable to furnish one at the time in question. Defendants west of Chicago by their tariffs provided that the rate should be applied on a minimum of 40,000 lbs. when a car of 40,000 lbs. capacity was furnished. Defendants east of Chicago provided a minimum of 34,000 lbs. on lumber in cars of any capacity. HELD, reparation should be awarded based on 40,000 lbs. between. Paper Mills and Chicago, and 39,500 lbs. between Chicago and destination. American Lumber & Mfg. Co v. S. P. Co., 14 I. C. C. 561, 562. (n) Reparation awarded because rates were charged on larger cars than those ordered. Bentley v. C. & N. W. Ry. Co., Unrep. Op. 181. (o) Tariffs of defendants should have provided that when cars of dimensions ordered by the shipper could not be furnished and cars of larger dimensions were furnished for convenience of car- riers, such cars might be used upon the basis of the minimum fixed for the cars which were ordered. Reparation ordered. Lininger Implement Co. v. C. & N. W. Ry. Co., Unrep. Op. 414. (p) Larger car furnished than one ordered and rates based on minimum of larger car. HELD, rates should 500 MINIMUMS, §5 (a)— (d) have been based on actual weight of shipment, which was more than mini- mum of car ordered, but less than car furnished. Reparation awarded. Torrey Cedar Co. v. C. & N. W. Ry. Co., Un- rep. Op. 420. §5. Minimum Higher Than Car Ca- pacity. (a) Complainant asked reparation on a carload of hay shipped from Brainerd, Minn., to Tampa, Fla., because charges were assessed upon a minimum weight of 20,000 lbs., although the car was loaded to its utmost capacity and con- tained but 16,500 lbs. Complainant did not appear at the hearing. No witnesses testified in his behalf, and he presented no documentary evidence to prove the averment of his petition, the exact amount of the freight charges paid or that the car was properly load- ed. Defendants denied that the minimum was unreasonable, and their witness testified that complainant ordered a car of the size which was tendered to him for this shipment. HELD, upon con- sideration of all the facts of record the minimum carload weight under which the shipments moved was not unrea- sonable. Complaint dismissed. Rich- ards V. N. P. Ry. Co., 21 I. C. C. 468. (b) Where the carrier's regulations restrict the loading capacity of a car to less than its rated minimum, it is unreasonable to assess charges on such minimum, but it should be on the actual weight. Oregon Lumber Co. v. O. R. R. & N. Co., 19 L C. C. 582. (c) A carload minimum for light and bulky articles like furniture should be such that the minimum can ordinarily be loaded, but the minimum is not necessarily unreasonable because it oc- casionally happens that cars, although loaded to their full physical capacity, will not contain it. Montague & Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 76. (d) Complainant shippers attacked the various minima on furniture from eastern points of origin to Pacific coast terminals. The minima attacked and the rates were as follows: Wooden man- tels, 16,000 lbs., $1.50; steel bath tubs, 10,000 lbs., $2.40; furniture, new, all kinds, 12,000 lbs., $2.20; bedroom fur- niture, 20,000 lbs. $1.50; iron and brass beds, 30,000 lbs., $1.10; folding beds, 20,000 1^^,^ $1.50; mattresses and springs, 20,000 lbs., $1.10; chairs and chair stock, 20,000 lbs., $1.50; tables 24,000 lbs., $1.50. Furniture is light and bulky as compared with most other kinds of freight. The weight of furni- ture possible to load into a car varies with the kind and grade, cheap furni- ture weighing less than that of higher grade. The weight capable of being loaded into a car depends on the form of the article and whether or not pre- sented for shipment in knocked down form. It also varies with the skill of the loader. The expense of transporting a car containing 20,000 lbs. of furniture was not much greater than that of car- rying the same car containing but 10,000 lbs. It was, therefore, to the interest of the carrier that cars be loaded as heavily as possible. No dis- tinction was made in the tariffs estab- lishing the minima attacked between cars of different lengths, whereas in point of fact the cars actually used varied greatly in loading capacity. The great majority of all cars used were 40 ft. in length. Complainant contended that any minimum which could not be invariably loaded into the car furnished with proper care upon the part of the shipper, was unlawful. HELD, the true rule was that the minimum should not exceed what could ordinarily be loaded with proper care and skill; that apply- ing this principle the minima on wood mantels and iron and brass beds of 16,- 000 and 30,000 lbs., respectively, were un- reasonable and should be reduced to 14,000 and 24,000 lbs., respectively, but that the minima on steel bath tubs, bed- room furniture, folding beds, mattresses and springs, chairs and chair stock and tables should not be disturbed, said ruling to be applicable to cars of 40 feet in length. Carriers authorized to establish a sliding scale of minima for cars of other lengths. Reparation awarded on shipments of wood mantels between the points in question in 40-ft. cars on the basis of a 14,000 lbs. mini- mum, charges being assessed on a 16,- 000 lbs. minimum, and on shipments in 50-ft. cars on the basis of a 17,500 lbs. minimum, the charges being assessed on a 20,000 lbs. minimum; reparation also awarded on shipments of brass beds between the points in question on the basis of a 24,000 lbs. minimum, the charges being assessed on a 30,000 lbs. minimum. Montague & Co. v. A. T. & S. F. Ry. Co., 17 L C. C. 72, 76, 78-84. MINIMUMS, §5 (e)— §7 (c) 501 (e) The minimum should never ex- ceed the capacity of the car. Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 109. (f) It is improper for carriers to regulate the amount of freight charges by prescribing minima which manifestly cannot be loaded. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 527. (g) Where a tariff provides that the minimum weight shall be the marked capacity of the car, a shipper of a car- load weighing less than such marked capacity cannot demand reparation on the basis of the actual weight of the shipment. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 14 I. C. C. 606, 608. (h) Reparation denied on shipment of baled straw, as car could have been loaded to the prescribed minimum. Richmond Co. v. G. T. Rv. Co. of Can., Unrep. Op. 161. (i) Minimum weight on washing- machine tubs should not exceed actual weight. Reparation awarded. Thistle Mfg. Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 299. §6. Mixed Carloads. See Classification, §7. (a) Complainant attacked the mixed carload rule of the defendant which provided that the deficit in minimum should be added to the weight of the highest rated article in the shipment. HELD, that the rule is unreasonable in the requirement that "when the ag- gregate weight of a mixed carload ship- ment does not amount to 20,000 lbs. add to the weight of the highest rated article in the shipment sufficient to make minimum weight of 20,000 lbs." and that in lieu of this requirement the rule should provide that when the aggregate weight of a mixed carload shipment does not amount to 20,000 lbs., there should be added to the weight of the heaviest loaded article in the ship- ment sufficient to make minimum weight of 20,000 lbs., except that when the ship- ment consists of two or more articles of equal weight, the weight sufficient to make the minimum weight of 20,000 lbs. should be added to the weight of the low- est rated article. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513 520 (b) A minimum was assessed on each of two kinds of grain in one car separated by a bulkhead, the tariff pro- viding for the mixed carload rate only when all but one of the grains were sacked. Rule amended and reparation ordered on shipment made. Hewitt & Connor v. C. & N. W. Ry. Co., 16 I. C. C. 431. §7. Reasonableness. See Evidence, §63 (a), (e) ; Long and Short Hauls, §10 (u); Reasonable- ness of Rates, §84 (aa); Repara- tion, §16 (uuuu); Through Routes and Joint Rates, §15 (m); Weights and Weighing, §10 (b), (c), (f). (a) Proposed minimum of 30,000 lbs. upon potatoes originating in Louisi- ana and Texas and applying from St. Louis, Mo., to points east of the Illinois- Indiana state line, held unreasonable, it appearing that the Texas and Louisiana potato is extremely perishable, possesses little keeping qualities, and requires the exercise of great care in loading to insure the best possible ventilation and the least possible pressure from the weight of one sack upon or against another. Minimum* of 24,000 lbs. pre- scribed, it appearing that these po- tatoes cannot be safely loaded to a greater weight. In Re Rates for Trans- portation of Potatoes, 23 I. C. C^ 69. (b) Complainants attacked the rea- sonableness of the minimum weight on grapes in baskets of 24,000 lbs. from Rochester, Albion and Appleton, N. Y., to Columbia, S. C. Under the rate of 79c the per car revenue was $189.60. No evidence was introduced bearing upon the reasonableness of the rate or the per car charge. HELD, the con- tinuous increase in the volume of traffic has necessitated the construc- tion of cars of greater capacity and the Commission is reluctant to reduce a minimum weight unless it may be done with substantial justice to all parties, and as the question of the rate is not involved, it does not seem expedient to reduce the existing mini- mum upon the record presented. Du- Pre Co. V. B. R. & P. Ry. Co., 23 I. C. C. 226, 228. (c) Complainant alleged that the rates charged by defendants for the transportation of sheep and cattle from California points to Tacoma and Seattle, Wash., and the rules pertain- ing to the shipment of sheep in double- deck cars were unjust, unreasonable. 502 MINIMUMS, §7 (cc) — (g) and unduly discriminatory. A general rule in the tariff provided that where double-deck cars are ordered and single cars are furnished instead, the rate provided for the cars used is charged. Under a special rule it was provided that where two single-deck cars are furnished the charge therefor would be on the basis of a double-deck car or 170 per cent of the single-deck car rate. Tingle-deck stock cars are available for shipments of lumber, coal, and other commodities, while double- deck cars cannot be so used to good advantage, and are therefore not of such general utility. On a 36-foot car from San Francisco to Portland the rate on cattle would be $120.95; on sheep double-deck cars $155.46, single-deck cars $91.45, and fresh meat, 25,000 pounds at 41c plus $50 refrigeration, $152.50. An exhibit filed by defendant shows that the rates are generally lower to Portland on both cattle and sheep than from similar distances into San Francisco, although the oper- ating conditions are more favorable to the San Francisco movement than over the Shasta route to Portland. HELD, the tariff provisions are conflicting, but that so long as defendants have provisions in their tariffs for the use of double-deck cars, the tariffs should provide that where a double-deck car is ordered and two single-deck cars are furnished charges will be assessed on the basis of the rate provided for the double-deck car ordered, and that the rates per se are not unjust or un- duly discriminatory. Carstens Packing Co. V. S. P. Co., 23 I. C. C. 236, 237, 238. (cc) The rule providing for a mini- mum charge of 5,000 lbs. on first-class rate upon an article too large to be loaded through the side door or too long to be loaded through the end win- dow of a 36-ft. box car or stock car found to be unreasonable and unjustly discriminatory. Rule, providing that when articles are loaded on open cars on account of being too large or too long to be loaded through the side door of a closed car shall be charged a mini- mum of 5,000 lbs. at the first-class rate, prescribed. Brunswick-Balke-Col- lender Co. v. A. T. & S. F. Ry. Co., 23 I. C. C. 395. (d) Defendant maintained a mini- mum carload weight on lumber from eoutheastern Georgia points to Jackson- ville, Fla., of 24,000 lbs. and on cross- ties of 32,000 lbs. HELD, the mainte- nance of a higher mimimum on cross- ties than contemporaneously maintained on lumber is unreasonable. Reparation awarded. Baxter & Co. v. G. S. & F. Ry. Co., 21 I. C. C. 647, 649. (e) Where apples are given a lower rate than other deciduous fruits they are subject to high minimum weights. Stacy & Sons v. O. S. L. R. R. Co., 20 I. C. C. 136, 137. (f) Complainants attacked the mini- mum weight on peaches from Georgia to markets east of the Mississippi and north of the Ohio and Potomac rivers in refrigerator cars of 22,500 lbs., which compelled complainants to load peach crates five tiers high. HELD, that the ordinary refrigeration method will not perfectly cool the two top tiers because Georgia peaches are picked and packed in very hot weather and moved through hot regions of the country; that the proper method of shipping these peaches would be to pre-cool the crates before loading into the car; that comparisons cannot be made with the transportation of Cali- fornia peaches (these peaches being cooled by exposure to the cool night air or in pre-cooling stations, and sub- ject to a cool mountain haul shortly after moving), nor in the northern states where there is a short haul. Complaint dismissed. Georgia Fruit Exchange v. S. Ry. Co., 20 L C. C. 623. (g) Complainant made a shipment of wooden buggy bodies in the white, weighing less than 18,000 lbs., Moline, 111., to Kalamazoo, Mich., via C. M. & St. P. and L. S. & M. S. R. Rs. under the joint through class rate of 43c per 100 lbs., minimum 18,000 lbs. Contem- poraneously there was a rate of 10c per 100 lbs. via the C. M. & St. P. R. R. to Chicago, 20,000 lbs. minimum, and 22c via the L. S. & M. S. R. R. to Kalamazoo, 18,000 lbs. minimum. HELD, the minimum weights on all carload shipments are to be consid- ered as part of the rates and the mere fact that a minimum applicable to parts of a combination of rates may be higher or lower than the minimum ap- plicable to the joint through rates does not overcome the presumption of unreasonableness in a joint rate and minimum in excess of the sum of the MINIMUMS, §7 (h) — (o) 503 local and resulting from the respective minima applicable thereto. Were the contrary to be held carriers by simply making different minima on local and through shipments could carry all through traffic via gateways they might select on higher charges than would result from combinations of locals through the same gateway. Repara- tion awarded. Lull Carriage Co. v. C. K. & S. Ry. Co., 19 I. C. C. 15. (h) A 20,000-lb. minimum is excess- ive as applied to consignments of empty beer kegs in refrigerator cars, but the same conclusion cannot be reached with respect to empty kegs and bottles mixed or to straight shipments of empty bottles. Miller Brewing Co. v. C. M. & St. P. Ry. Co., 19 I. C. C. 590. (i) Prior to November 1, 1908, the minimum on iron fences in carloads from Brighton, O., to Tombstone, Ariz., was 30,000 lbs., which upon said date was raised to 36,000 lbs., the rate re- maining $1.94. Complainant made a bid to furnish an iron fence in Tombstone in June, 1908, which bid was not ac- cepted until September, the shipment being made in November. The bid was made after taking into considera- tion the existing freight rate. No evi- dence of the unreasonableness of the increased minimum was offered except the fact of said increase. HELD, the increased minimum was not shown to be unreasonable. Barnum Iron Works V. C. C. C. & St. L. Ry. Co., 18 I. C. C. 94, 95. (j) An increased minimum cannot be condemned merely because a contract is made by a shipper based on the lower minimum. Barnum Iron Works V. C. C. C. & St. L. Ry. Co., 18 I. C. C. 94. (k) A carload minimum of 30,000 lbs. on lime from Ash Grove, Mo,, to Pine Bluff and Laramie is unreasonable to the extent that it exceeds 24,000 lbs. in view of the necessity for a low minimum due to the perishable nature of the commodity and of the fact that said lower minimum is applied by de- fendant to practically all points to which through rates are provided and of the further fact that the 24,000 lbs. minimum is accorded to complainants' competitors located at Quincy and Hannibal, Mo. Sunderland Bros. Co. v. St. L. & S. F. R. R. Co., 18 I. C. C. 545, 546. (1) On carloads of sheep from points in California to Tacoma, Wash., com- plainant ordered double-deck cars and was furnished single-deck cars. Defend- ant's tariff provided that on double- deck cars a charge of 170 per cent of the rate on single-deck cars would be charged, and that if the company could not furnish the double-deck equipment the single-deck car rates would be charged. Defendant, at the time of the shipments in question, had no double-deck cars available and the evi- dence indicated that on account of curves, tunnels and grades on its line the use of double-deck cars was not practicable. Complainant also attacked the rates charged as unreasonable and offered in evidence comparative rates on shipments of sheep westbound into Tacoma, and of cattle northbound into Tacoma. HELD, the provision in the tariff relating to single-deck charges was not unreasonable, and the evidence of comparative rates was not sufficient to establish the unreasonableness of defendant's rates. Carstens Packing Co. V. S. P. Ry. Co., 17 L C. C. 6. (m) Following the decision in Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, defendants are held properly to have instituted a sliding scale of minima for shipments of fur- niture from eastern points of origin to the Pacific Coast above the minima prescribed in said decision for cars 40 feet in length. Sliding scale held to be reasonable; complaint dismissed. Pease Bros. Furniture Co. v. S. P. L. A. & S. L. R. R. Co., 17 I. C. C. 223, 224. (n) Tariffs in effect at time of move- ment provided for a minimum of 24,000 lbs., while complaint alleged such minimum to have been 30,000 lbs. and that charges were based on the latter minimum. Based upon 24,000-pound minimum there has been an overcharge, for which reparation will be awarded. James & Abbot Co. v. B. & M. R. R. Co., 17 I. C. C. 273. (o) On a carload of hand agricul- tural implements, weighing 24,617 lbs., from Wallingford, Vt., to Denver, Colo., complainant was assessed 31c, minimum 24,000 lbs., to the Mississippi River, and $1.07, minimum 30,000 lbs., from the river to Denver. A commodity rate of 504 MINIMUMS, §7 (p)— (u) 27c, minimuin 30,000 lbs., was in effect from the Mississippi River to the Mis- souri River; a commodity rate of 80c, minimum 30,000 lbs., from the Mis- souri River to Denver. The class rate, minimum 24,000 lbs., from the Missis- sippi River to the Missouri River was 35c; from the Missouri River to Denver 80c. The commodity rate with a min- imum of 30,000 lbs. would produce a less charge between the rivers than the class rate, but from the Missouri River to Denver the commodity rate and the class rate were the same, al- though the minima were different. HELD, the minimum applied from the Missouri River to Denver should not have exceeded the 24,000-lb. minimum prescribed for the class rate between said points. Reparation awarded. George Tritch Hardware Co. v. Rutland R. R. Co., 17 I. C. C. 542. (p) On shipments of carloads of to- bacco from Kentucky to Laredo, thence over the line of the Mexican National railroad to Monterey, Mex., complain- ant was assessed on the basis of a minimum of 33,069 lbs., the actual weight of shipments being less than said minimum. From 1900 to 1903, the minimum over the lines in question was 20,000 lbs.; from 1903 to .1907, 22,046 lbs.; from October 5, 1907, to June 5, 1908, 33,069 lbs., and after June 5, 1908, 27,558 lbs. The shipments in question moved between October 8 and Decem- ber 6, 1907. It was impossible to load into cars not exceeding 40 feet in length 33,069 lbs. of tobacco in hogs- heads, and lower minima prevailed in other territory. HELD, the 33,069-lb. minimum was unreasonable and the minimum should not have exceeded 27,558 lbs. Reparation awarded on the basis of said lower minimum. Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, 589. (q) In determining a reasonable car- load minimum for strawberries and peaches, the interest of the shipper demands that the minimum should be fixed as high as the product may be carried under the most advantageous circumstances, and that the rate should be made as low as possible, based on this high minimum, since if the shipper deems it advantageous to ship fewer crates in a car the only penalty upon him is that he will have to pay a somewhat higher rate per crate de- pending upon how much below the minimum he loads. Ozark Fruit Grow- ers' Ass'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 109. (r) The carload minimum for re- frigeration on strawberries and peaches must be the same as that for trans- portation. Ozark Fruit Growers' Ass'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 108. (s) Complainant attacked the mini- ma of 17,000 and 20,000' lbs. on straw- berries and peaches respectively on shipments from points in the Ozark country, in southwestern Missouri and northwestern Arkansas, to various points east and west. A refrigerator car is physically capable of carrying 1,523 crates of strawberries, while the 17,000-lb. minimum amounts to only 567 crates. It appeared that shippers of strawberries in nearly all cases load- ed up to the minimum, finding it to their advantage to take the chance of imperfect refrigeration rather than pay the extra charge which would follow from - loading below the mini- mum. With proper refrigeration it ap- peared the 17,000-lb. minimum might be safely carried. This minimum on strawberries compared favorably with that in force on shipments from points in Tennessee and Mississippi. HELD, the minima on strawberries and peaches were reasonable and should not be re- duced. Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 109, 110. (t) Complainant on a carload of coiled elm hoops weighing 24,000 lbs., shipped from Cardington, O., via Coster, 111., to Green Bay, Wis., was charged 24i^c. The rate from Cardington, O., to Coster, 111., on a minimum of 24,000 lbs. was lli/^c; from Coster to Green Bay on a minimum of 30,000 lbs., SVzC. Under these rates and minima the charge would have been $53.10. The charges under the 24i^c rate assessed were $58.80. HELD, complainant was entitled to $5.70 reparation, being the difference. Coster, 111., to Green Bay minimum of 30,000 lbs., held to be rea- sonable following Oshkosh Logging Tool Co. V. C. & N. W. Ry. Co., 14 I. C C. 109. W. Noble v. C. M. & St. P. Ry. Co., 16 I. C. C. 420, 421. (u) On a package of plate glass 8 feet square and weighing 900 lbs., from St. Paul, Minn., to Douglas, N. D., complainant was assessed the first class MINIMUMS, §7 (v)— (bb) 505 rate of $1.11 on a minimum of 5,000 lbs. The value of the glass was $46 and freight charges collected were $55.50. Defendant's rules provided that said rate exacted should apply to plate glass exceeding 7^/^ ft. in length. Said rule was adopted when with the size of the cars then in use an article of said length would have to be loaded on a flat car. On account of the increase in the size of the cars, it was easily loaded in a furniture box car. HELD, the minimum was unreasonable. Repa- ration awarded on the basis of actual weight. Bennett v. M. St. P. & S. Ste. M. Ry. Co., 15 I. C. C. 301, 303. (v) Defendants' tariff provided a carload minimum of 60,000 lbs. on wheat from Kansas City to Galveston for export. Complainant loaded into a 50,000 lbs. capacity car its maximum capacity of 55,000 lbs. and was assessed the minimum of 60,000. Defendants had over 1,200 cars of 40,000 lbs. capac- ity, 663 of 50,000 lbs., and 125 of 28,- 000 lbs. Other carriers of wheat for export from Kansas City to New Or- leans at the same rate charged com- plainant made the marked capacity of the car the minimum. HELD, said minimum was unreasonable. Repara- tion awarded on the basis of actual weight. Rosenbaum Grain Co. v. M. K. & T. Ry. Co., 15 L C C. 499, 500. (w) Defendants advanced the mini- mum on building stone from 30,000 lbs. to 40,000 lbs. Complainant, in shipping 104 cars of the commodity from Barre, Vt., was unable to load to this minimum on 24 of the cars on account of the fact that the stones could not be placed one upon another. The cars furnished by the initial carrier were less than standard length and width. The experience of other quarries was that no difficulty was experienced in loading to a minimum of 40,000 lbs. upon standard cars. HELD, a mini- mum of 40,000 lbs. was unreasonable and unjust; that a minimum of 36,000 lbs; should be established upon cars 36 ft. in length and over, and of 30,- 000 lbs. upon cars of less than 36 ft., and that reparation should be awarded for the excess paid over and above what would ha^'e been paid upon the minimum ordered to be established. Tayntor Granite Co. v. Montpelier & Wells River R. R. Co., 14 L C. C 136, 137. (x) Where on four carloads of gran- ite shipped from Barre, Vt., to Lester- shire, N. Y., 17c per 100 lbs. was col- lected upon a minimum of 40,000 lbs., the cars being less than 36 feet in length, the charges should have been assessed upon a minimum of 30,000 lbs., and the consignee is entitled to recover the excess with interest. Tayn- tor Granite Co. v. Montpelier & Wells River R. R. Co., 14 I. C. C. 136, 138. (y) One carload of building granite shipped from Barre, Vt., to Chesaning, Mich., was assessed at the 1. c. 1. rate of 29c per 100 lbs. The car weighed 26,100 lbs. and was less than 36 ft. in length. HELD, it should have been assessed at the carload rate of 21c upon a 30,000-lb. minimum and com- plainant was entitled to recover the overcharge with interest. Jones Bros. Co. v. Montpelier & Wells River R. R. Co., 14 L C. C. 139. (z) Three carloads of building gran- ite shipped from Barre, Vt., to Troy, N. Y., were assessed at 15c per 100 lbs. upon a minimum carload weight of 40,000 lbs. The cars were less than 36 ft. in length and each carried a load exceeding 30,000 lbs. HELD, the assessment should have been based upon the actual weights, and complain- ant was entitled to recover the over- charge with interest. Jones Bros. Co. V. Montpelier & Wells River R. R., 14 I. C. C. 140. (aa) One carload of building gran- ite shipped from Barre, Vt, to Bush- wick Junction, L. L, N. Y., was assessed at 20c per 100 lbs. upon a minimum of 40,000 lbs. The car was less than 36 ft. in length and the actual weight carried 32,900 lbs. HELD, it should have been assessed at the actual weight and the complainant was enti- tled to recover the overcharge with interest. Jones Bros. Co. v. Central Vermont Ry. Co., 14 L C. C. 141. (bb) One carload of building gran- ite was shipped from Barre, Vt., to Bushwick Junction, L. L, N. Y., and was assessed at 20c per 100 lbs. on a minimum of 40,000 lbs. The car was less than 36 ft. in length and carried an actual weight of 30,600 lbs. HELD, It should have been assessed at actual weight, and complainant was entitled to recover the overcharge with interest. Jones Bros, Co. v. Central Vermont Ry. Co., 14 I. C. C. 142. 506 MINIMUMS, §7 (cc)— (ii) (cc) One carload of building granite was shipped from Barre, Vt., to Scran- ton, Pa., and assessed at 17c per 100 lbs. on a minimum of 40,000 lbs. The car was less than 36 ft. in length and carried 39,400 lbs. HELD, it should have been assessed at actual weight, and complainant was entitled to re- cover the overcharge with interest. Jones Bros. Co. v. Central Vermont Ry. Co., 14 I. C. C. 143. (dd) One carload of building granite shipped from Barre, Vt, to Chesaning, Mich., carrying an actual weight of 31,- 900 lbs., was assessed at 20c per 100 lbs. upon a minimum of 40,000 lbs., the car being less than 36 ft. in length. HELD, it should have been assessed at actual weight, but at the rate of 21c, and complainant was entitled to recover the overcharge with interest. Jones Bros. Co. V. Montpelier & Wells River R. R., 14 L C. C. 144. (ee) Two carloads of building gran- ite shipped from Barre, Vt., to Spring- field, Mass., in cars less than 36 ft. in length and containing each an actual weight of less tha.i 30,000 lbs., were as- sessed at 15c per 100 lbs. upon a mini- mum of 40,000 lbs. HELD, they should have been assessed at a minimum of 30,000 lbs. and complainant was entitled to recover the excess with interest. Jones Bros. Co. v. Montpelier & Wells River R. R., 14 I. C. C. 145. (ff) Five carloads of building gran- ite shipped from Barre, Vt., to Wood- lawn, N. Y., in cars less than 36 ft. in length, each carrying more than 30,000 lbs. actual weight, were assessed at 15c per 100 lbs. upon a minimum of 40,000 lbs. HELD, they should have been assessed at actual weights and complainant was entitled to collect the excess with interest. Lazarri & Barton Co. v. Montpelier & Wells River R. R., 14 L C. C. 146. (gg) Complainant, wholesale and re- tail hay merchants of Kansas City and vicinity, attacked the 19,000 and 22,000 lbs. minima applicable respectively on 34 and 36 ft. cars. The so-called 34-ft. car of defendants varied in length from 32 ft. 11 in. to 34 ft.; in width from 7 ft. 8 in. to 8 ft. 10 in.; and in height from 6 ft. 1 in. to 8 ft. The 36-ft. cars ranged from 36 ft. to 36 ft. 8 in. in length; from 8 ft. 3 in. to 8 ft. 6 in. in width, and from 6 ft. 9 in. to 8 ft. in height. Of the hay cars coming into Kansas City and consigned to com- plainants, some 65 to 70 per cent were loaded to or in excess of the minima attacked, and some 90 per cent of the cars outbound were likewise so loaded. Of some 2,000 cars loaded under the minimum required, some 1,299 of the 34-ft. cars contained loads actually weighing on an average 17,505 lbs. and some 654 36-ft, cars contained loads actually weighing on an average 20,358 lbs. The density of the bales of hay handled by complainants was consid- erably less than that of other shippers throughout the country generally, re- sulting in inability on their part to load as heavily as other shippers. Com- plainants did not attack the hay rate itself as unreasonable. HELD, the min- ima attacked with respect to the so- called 34 and 36 ft. cars should not be disturbed except as to cars having a height of 6 ft. 9 in. and less; for a 34-ft car of such height or less a mini- mum of 17,500 lbs. should be estab- lished, and for a 36-ft. car of such length or less, a minimum of 20,000 lbs. Kansas City Hay Dealers' Ass'n v. M. P. Ry. Co., 14 I. C. C. 597, 603. (hh) On a carload of corrugated iron from Newport, Ky., to Globe, Ariz., complainant was assessed a through rate of $2.08 per 100 lbs., minimum 30,000 lbs. The combination of locals was $1.68, minimum 30,000 lbs. Subsequent to the shipment in question defendants established a joint through rate of $1.68, minimum 36,000 lbs. Complainant of- fered no evidence that 36,000 lbs. mini- mum was unreasonable. Defendants admitted the $2.08 rate to be unreason- able, but did not admit the same with respect to the 36,000-lb. minimum. HELD, (the $2.08 rate was excessive, but repa- ration on the basis of the $1.68 rate must be computed on the 36,000 and not on the 30,000 lb. minimum. Gus Momsen & Co. V. Gila Valley, Globe & Northern Ry. Co., 14 I. C. C. 614, 615. (ii) Defendants prescribed a mini- mum of 24,000 lbs. on 36 14 -ft. cars of cattle originating west of a line drawn from Mandan, N. D., to Velva, Canada. This minimum had been in force for many years without complaint from shippers. East of this line a lower minimum was prescribed. The reason for such discrimination was that the bulk of cattle originating west of the line was fattened and would load easily MINIMUMS. §7 (jj) — (XX) 507 in excess of the minimum required. No evidence was offered to show that the rates as practically applied under the minimum were unreasonable. HELD, the demand for a lower minimum and for reparation should be denied. Reed V. C. M. & St. P. Ry. Co., 14 I. C. C. 616, 618. (jj) Complainant attacked the less- than-carload rate of $1.79 on cotton piece goods from New England produc- ing points to Denver and asked for the establishment of carload rates. The less-than-carload rate to Pacific coast terminals was $1.50 and the carload rate $1 on cotton piece goods and 90c upon coarser grades. It is 2,000 miles to Denver and 1,400 miles from Den- ver to San Francisco. Water competi- tion determined the rail rates between the Atlantic seaboard and the Pacific Coast. HELD, it must be presumed that the Pacific coast rates, though established by water competition, were compensatory to defendants and that the less-than-carload rates to Denver should not exceed $1.50; but that car- load rates should not be established, the almost universal practice being against the establishment of such rates. Merchants' Traffic Ass'n v. N. Y. N. H. & H. R. R. Co., 13 I. C. C. 225, 228. (kk) Minimum fixed by defendants condemned as too high. Peerless Agen- cies Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 33, 34, 35. (11) Greater minimum, inserted in tariff through error, subsequently cor- rected; reparation awarded on basis of lower minimum. Acme Cement Plaster Co. V. C. R. I. & P. Ry. Co., Unrep. Op. 56. (mm) Reparation awarded on ac- count of unreasonable minimum. Mil- waukee Beer Co. v. T. & P. Ry. Co., Unrep. Op. 61. (nn) Reparation awarded on ship- ment of cast-iron pipe from Cleveland, O., and Bessemer, Ala., to Wessington Springs, S. D., the weight of which was less than the carload minimum of 30,000. United States Cast Iron Pipe & Foun- dry Co. V. L. S. & M. S. Ry. Co., Unrep. Op. 67. (oo) Reparation awarded on basis of lower minimum voluntarily established on beer. Pabst Brewing Co. v. E. P. & S. W. R. R. Co., Unrep. Op. 109, 110. (pp) Reparation awarded on ship- ment of cement from Chanute, Kan., to Whitewood, S. D., on account of unrea- sonable minimum. Sunderland Bros. Co. V. C. & N. W. Ry. Co., Unrep. Op. 148. (qq) Minimum applied to shipments of pulp wood from points in Minnesota to Appleton, Wis., found excessive and reparation awarded. Wisconsin Pulp & Paper Mfrs. v. C. M. & St. P. Ry. Co., Unrep. Op. 224. (rr) Minimum weight applied to shipments of pulp wood found excessive and reparation awarded. Wisconsin Pulp- & Paper Mfrs. v. D. & R. I. R. R. Co., Unrep. Op. 225. (ss) The minimum weight of 30,000 lbs. on potatoes from Cane Brake, Tex., to St. Louis, when destined to points east of the Indiana-Illinois state line, found unreasonable, when compared with the minimum of 24,000 lbs. on such shipments to St. Louis proper. Repara- tion awarded. Miller & Co. v. G. H. & S. A. Ry. Co., Unrep. Op. 249. (tt) A minimum weight on carload shipments, exceeding that granted to complainant's competitors in the same territory by tariff in which defendant joined. HELD, to be discriminatory, and reparation awarded. American Ce- ment Plaster Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 285. (uu) Minimum applied to shipments of empty beer packages instead of ap- plying any-quantity basis. Reparation awarded. Milwaukee-Waukesha Brewing Co. V. C. & N. W. Ry. Co., Unrep. Op. 294. (vv) Carload minimum weight on washing-machine tubs should not exceed actual weight. Reparation awarded. Thistle Mfg. Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 299. (ww) Joint rate which exceeds com- bination of intermediates, with varying minima, held unreasonable and repara- tion awarded. Stacy & Sons v. C. B. & Q. R. R. Co., Unrep. Op. 343. (xx) Reparation awarded on ship- ments of brass bedsteads from Cleve- land, O., to San Francisco, Cal., on basis of minimums established in Mon- tague & Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 72. Walter & Co. v. L. S. & M. S. Ry. Co., Unrep. Op. 350. 508 MINIMUMS, §7 (yy)— §8 (f) (yy) Actual weight of shipment lower than prescribed minimum not found un- reasonable. Kaye & Carter Lumber Co. V. N. P. Ry. Co., Unrep. Op. 392. (zz) Minimums on two carloads of fleshings and glue stock from New York to Chicago not found unreasonable. Barr Chemical Works v. P. & R. Ry. Co., Unrep. Op. 473. (aaa) Minimum applied to the trans- portation of burlap bags found unreason- able; reduction ordered and reparation awarded. Sallisaw Cotton Oil Co. v. St. L. I. M. & S. Ry. Co., Unrep. Op. 484. (bbb) Minimums reduced shortly after movement. HELD, higher minimum un- reasonable and reparation awarded. Wis- consin Bridge & Iron Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 582. §8. Two Cars for One. See Bills of Lading, §5. (a) Where carriers by their tariffs specify minima for large size cars they should further provide that when such cars are not available two smaller cars may be used under such circumstances as will fairly protect the minimum spec- ified for the larger car. Noble v. B. & O. R. R. Co., 22 L C. C. 432, 437. (b) Complainant shipped sugar from New Orleans, La., to Sioux City, la. He had a sufficient number of barrels to make more than one carload and less than two carloads. He took bills of lading for the shipments and was as- sessed a carload rate on one and the less-than-carload rate on the other. Western Classification contained a rule as follows: "When the minimum car- load weight or more of one article is shipped in one day, by one consignor to one consignee, covered by one bill of lading, the established rate for a car- load shall apply on the entire lot although it may be less than two or more full carload lots." HELD, under the classification, to obtain the appli- cation of the carload rate at the actual weight of the part carload, the entire consignment must move upon one bill of lading. Complainant's action in se- curing a bill of lading for each car rendered the rule inapplicable and each carload became a separate shipment subject to the prescribed minimum rate per car. Reparation denied. Scud- der V. T. & P. Ry. Co., 21 I. C. C. 60. (c) A carrier furnishing two short cars in lieu of the larger car ordered should assess charges on the basis of the rate and minimum applicable to the car ordered. Minneapolis Threbh- ing Machine Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 181. (d) Two separate bills of lading were taken out by complainant cover- ing two cars of machinery shipped on the same day to the same consignee. Under Rule 8 of the Western Classi- fication defendants assessed charges thereon on the basis of the minimum carload weight for each. HELD, that under the rule the established rate for a carload can only apply on the entire lot when the shipments are covered by one bill of lading, and that this rule having been considered and approved in prior cases cannot be held unreasonable, and the charges were properly assessed. Goodman Mfg. Co. V. C. B. & Q. R. R. Co., 21 L C. C 583. (e) Complainant had shipped to it two carloads of news printing paper, Los Angeles, Cal., to Grand Rapids, Wis., under a rate of 75c per 100 lbs. The first car weighed 51,000 lbs., the second car 23,000 lbs., shipped different days under separate bills of lading. The minimum weight for each car was 30,000 lbs. Rule 8 of Transcontinental Freight Bureau Tariff, I. C. C. 889, in force when the shipments were made, provided that when minimum carload weight or more is shipped in one day by one consignor to one consignee cov- ered by one bill of lading the estab- lished rate for a carload shall apply on the entire lot, although it may be less than two or more full carload lots. The consignor was notified of this rule but loaded the cars in the manner he did instead of loading two cars to the full minimum or shipping them on the same day under one bill of lading. HELD, complainant was not entitled to reparation on second car on difference between actual weight and minimum weight. Consolidated Water Power Co. v. S. P. L. A. & S. L. R. R. Co., 20 I. C. C. 169. (f) On a shipment of furniture from Chicago complainant ordered a 50-foot car, into which his shipment could have been loaded. Defendants, for their con- venience, furnished one 40-foot car and one car of smaller dimensions, and as- MINIMUMS, §8 (g)— (j) 509 sessed charges on the basis of the combined minima of the cars furnished. HELD, a carload rate and a minimum weight for a car of definite dimensions, when lawfully published in the tariffs of the carrier, constitute an open offer to the shipping public to move merchan- dise on those terms; and there should he SL rule in the tariffs to the effect that when a carrier is unable to furnish the car of size ordered and for its own convenience furnishes two cars in lieu thereof, it should do so on the basis of the rate and minimum weight pub- lished in the tariffs and applicable to the car of the size ordered by the ship- per. Reparation awarded on the basis of the minimum weight of the 50-foot car. Springer v. E. P. & S. W. R. R. Co., 17 I. C. C. 322, 323. (g) On a carload of persulphate of iron, complainant ordered a 60,000-lb. car and was furnished two 40,000-lb. cars, into one of which complainant loaded 44,013 lbs. and into t^^e other 15,696 lbs. He was assessed on the basis of the minimum for the two cars furnished. HELD, defendants' tariffs were unreasonable in failing to provide a rule allowing the shipper the benefit of the minimum of the car ordered where, for the convenience of the car- rier, cars of different dimensions are furnished. Reparation awarded. Job- bins V. C. & N. W. Ry. Co., 17 I. C. C. 297, 299. (h) On shipments of furniture and chairs from Chicago to Missouri River points, the minimum rule permitted the use of two cars on the basis of the minimum applicable on one where the shipper was unable to load the minimum in the first car. This "two- for-one" privilege was denied on ship- ments from Indianapolis to Missouri River points. HELD, this discrimina- tion was unlawful and should be cor- rected. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 68. (i) Defendant's tariff provided that where it could not furnish one car large enough to accommodate the minimum weight, it might supply two cars and assess its charge on the basis of the lowest rate and the highest minimum weight for the one car ordered. HELD, complainant, having ordered one car and defendant, for its own convenience, having supplied two and charged for the minimum on each of the two cars, was entitled to reparation on the basis of the actual weight. Milwaukee Falls Chair Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 217, 218. (j) Complainant, shippers at Indian- apolis, Ind., attacked the rules and prac- tices of defendant carriers which, on shipments of furniture, chairs, ladders and vehicles from Cincinnati, O., Louis- ville, Ky., New Albany and Evansville, Ind., and Chicago, allowed shippers from these cities carload rates on part car lots in excess of full carloads and per- mitted them to use two cars and ob- tain thereon the rate, on the basis of actual weight, published to apply to the minimum weight of one car, under the "two-for-one" rule; which privileges were denied to Indianapolis dealers on shii>- ments to such points. The effect oil these rules and practices were, for example, to enable shippers at the privileged points to load the minimum prescribed for a 50-ft. car into any equipment which might be available and have the carload rate applied on the entire shipment and have the benefit of the carload rate on any excess loaded in a second car. To obtain the benefit of this it was not necessary that the shipper request and the carrier fail to furnish a 50-ft. car. At Indian- apolis the less-than-carload rate was charged on such excess under the rules in question; for example, if an Indian- apolis shipper ordered a 40-ft. car and the carrier was not able to furnish that, but did furnish a 50-ft. car, he was re- quired to pay charges on the minimum weight prescribed for the 50-ft. car, and where he ordered a 50-ft. car and the carrier was only able to furnish a 40-ft. car, he had to pay the higher rate on the lower minimum prescribed for the smaller equipment and the less- than-carload rate on any excess. The minimum on vehicles in 50-ft. cars was 22,720 lbs. It was impossible to load in excess of 20,000 lbs. A Cin- cinnati shipper, for example, with 22,720 lbs. of vehicles destined to an Arkansas point might obtain the carload rating on the whole consignment by using two cars, the combined measure- ment of which did not exceed 72 ft To obtain this privilege it was not nec- essary for him to order a 50-ft. car; with one 50-ft. and two 36-ft. cars avail- able he could select the two smaller cars and have it. The Indianapolis 510 MINIMUMS, §8 (kl)— (n) shipper was denied this right. The minimum on vehicles from Indianapolis was 14,000 lbs. for each 36-ft. car used, irrespective of the fact that an entire consignment moved forward as a single shipment in two such cars billed out at the same time; whereas, from Cincin- nati, under the "two-for-one" rule, two 36-ft. cars combined would be subject to the minimum of 22,720 lbs. prescribed for a 50-ft. car, or 11,^60 lbs. each. Defendants contended that the roads operating from Cincinnati were forced by the competition of western lines to accord the "two-for-one" rule at that place, and that this competition did not exist at Indianapolis, HELD, that either the "two-for-one" rule in modi- fied form should be extended to Indian- apolis, or else there should be a re- adjustment of the minimum weights so as to make them conform approxi- mately to the actual loading capacity of cars, in order to eliminate unjust discrimination against Indianapolis. In- dianapolis Freight Bureau v. C, C. C. & St. L. Ry. Co., 16 I. C. C, 254, 258- 260. (kl) On shipments of lumber com- plainant ordered two 33-ft, cars. De- fendants furnished one 33 ^^ and one 34 ft. cars. The actual weight of each shipment exceeded the minimum of the smaller car ordered, but was less than the minimum for the larger car fur- nished. Complainant was assessed on the basis of the minimum for the larger car. Only one of the defendants had a published tariff permitting it, when supplying a shipper with a larger car than ordered, to assess the charges on the basis of the minimum for the small- er car. HELD, the carload rate and a minimum rate for a car of definite dimensions when lawfully published in the tariffs of a carrier constitute an open offer to the shipping public to move their merchandise on those terms; and it would be wholly unsound in principle to permit the carrier to im- pose additional transportation charges on the shipper who orders a car of a capacity, length or dimension speci- fied in its tariffs, simply because it was not provided with cars of the di- mensions ordered. The obligation to carry merchandise of shippers on the basis of the published rates and mini- mum weights, and to use whatever cars are available for that purpose, ought to have been covered in the pub- lished tariffs of the defendants by proper rule to that effect; and their tariffs were unreasonable and unlawful in not containing such a provision at the time the shipments in question were made. Reparation awarded on the basis of actual weight. Kaye & Carter Lumber Co. v. M. & I. Ry. Co., 16 I. C. C. 285, 287. (m) On a shipment of 31 farm wag- ons weighing 36,200 lbs. from Racine, Wis., to Abilene, Tex., complainant or- dered a 50-ft. box car which would easily hold the 31 farm wagons, and which kind of car was named in defend- ants' tariff. Defendants for their own convenience supplied two 36-ft. cars, and assessed charges on 48,000 lbs., the minimum of the 36-ft. cars being 24,000 lbs. HELD, the charges were unreasonable. Reparation awarded on the basis of actual weight. Racine-Sat- tley Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 488, 489. (n) For the purpose of shipping 50 bales of uncompressed cotton linters weighing 22,471 lbs. from Maiden, Mo., to Minneapolis, Minn., via the Frisco lines from Maiden to St. Louis and thence via the C. B, & Q, and the Rock Island lines to destination, complainant requested the Frisco to furnish a car large enough to carry the entire 50 bales. Instead it supplied a 40-ft. car into which 30 of the bales were loaded and a 36-ft. car into which the remain- ing 20 bales were loaded. No joint through rate over these lines existed from Maiden to Minneapolis. The 25c rate of the Frisco from Maiden to St. Louis was an "any-quantity rate." The joint through carload rate of the ot?ier two lines from St. Louis to Minneapolis was 26c. The shipment moved on. these local rates but under through billing. For the St. Louis to Minneap- olis haul, the Rock Island assessed the 26c rate on the 40-ft. car on the basis of a minimum of 24,000 lbs., and also the same rate on the basis of the 36-ft. car, which contained only 8,988 lbs. Complainant demanded reparation on the theory that if the Frisco had fur- nished a car large enough to take the 50 bales, complainant would have es- caped the high charges imposed on a 36-ft. car by the Rock Island. HELD, reparation should be denied. While a carrier in accepting a shipment ought to consider the convenience and inter- ests of the shipper, nevertheless, as a MINIMUMS, §8 (o)— MISBILLING 511 matter of law, it is under an obli- gation only of satisfying the require- ments of its own tariffs. It can be called upon to do for shippers only what it offers to do in its tariffs or in any joint tariffs to which it is properly named as a party. It cannot be com- pelled to meet the requirements of the separate tariffs of its connections. Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 272. (o) Shippers at Indianapolis, Ind., complained of the unjust discrknina- tion arising from the application of the "two-for-one" rule on shipments of light and bulky articles such as furniture, chairs, ladders and vehicles from Chi- cago and its non-application on similar shipments from Indianapolis to West- ern Trunk Line territory and the Mis- sissippi River crossings. Under this rule, which was applicable on ship- ments from Chicago to the west, by exceptions to Western Classification, a shipper upon the failure of the carrier to furnish the size of car ordered could obtain the carload rates at the minimum weight and the rate provided for one car, although the second car might contain less than a carload. Under the operation of this rule the rates on the articles in question to western points from Indianapolis were .greatly in ex- cess of those from Chicago, in some instances the total charges under the minima prescribed being twice as high. Articles in question varied greatly in weight and bulk and the minima pre- scribed could not in many instances be actually loaded. Defendant con- tended that under the regular classi- fication ratings it was necessary to prescribe varying minima on the vari- ous articles in order to make the charges compensatory in view of the varying bulk and weight. On extremely light and bulky articles charges must be assessed on higher minima than could be loaded into the cars. The only other method of fixing charges would to be abandon the use of the classification ratings and publish nu- merous special rates varying with the bulk and loading possibilities of each class of freight. To apply the "two- for-one" rule to Indianapolis would re- sult in sending the equipment of car- riers off their rails into other terri- tories and in restricting the car supply. Dishonest shippers were able to order a large car with the knowledge that it could not be furnished and thus se- cure the application of the rule when it was not proper or necessary. On account of the fact that the western lines handled the larger part of their freight eastward, the operations of the two-for-one rule in Western Classifica- tion territory did not result in the same restriction of car supply as would result from its application to Official Classification territory. HELD, the ap- plication of the two-for-one rule to Chicago and i*:s non-application from Indianapolis worked an unjust dis- crimination against the latter city; and the carriers should meet the situation either by the adoption of the rule at Indianapolis with such restrictions or modifications as would prevent improper manipulation or else should readjust the minimum weights on the various arti- cles referred to so that they would conform approximately to the actual loading capacity of cars. The Com- mission would not, unconditionally, or- der the extension of the rule, how- ever, in view of the abuses connected with it. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 526. (p) Shipper ordered one large car; two smaller cars furnished. Charges should have been assessed on basis of actual weight of shipment. Reparation awarded. Pate v. C. & N. W. Ry. Co., Unrep. Op. 417. (q) Reparation awarded against in- itial line where shipment moves on joint rate when such initial line for its own convenience furnishes two smaller cars in lieu of a larger car ordered, even though the tariff carrying the joint rate fails to contain such a provision. Mo- line Plow Co. V. C. M. & St, P. Ry. Co., Unrep, Op. 419. (r) Defendants' tariffs should provide that when a car of a particular size is ordered, and for the convenience of the carrier two smaller cars are furnished, the two cars so furnished shall be used upon the basis of the minimum weight fixed for the car ordered. Reparation awarded. Bradford-Kennedy Co. v. N. P. R.v. Co., Unrep. Op. 455. MISBILLING. See Classification, §8. 512 MISROUTING— NARROW-GAUGE RAILROADS, I (d) MISROUTING. See Routing and Misrouting. MISTAKE. See Crimes, §8 (d). MIXED CARLOADS. See Classification, §7. MOOT QUESTION. See Courts, §10 (c) ; Facilities and Privileges, §1 (d); Interstate Com- merce Commission, §1 (g). NARROW-GAUGE RAILROADS I. REASONABLENESS OF RATES. See Demurrage, §6 (a), (a) Somewhat higher rates may exist on narrow-gauge lines than on the stand- ard trunk lines. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 176. (aa) On mixed carloads of potatoes and onions in sacks and packages from Reno, Nev., to Alturas, Cal., a rate was exacted of 80c per 100 lbs. Defendant was a narrow-gauge railroad extending from Reno to Alturas, a distance of 184 miles. The rate in the opposite direction between these points was $G per ton. One of the carloads moved while a com- bination rate of $12 per ton was in ef- fect between the points in question. The rate charged yielded 8.7c per ton mile. HELD, the rate exacted was unreason- able to the extent that it exceeded $12 per to'n. Reparation awarded. E. Lauer & Son V. Nevada-California-Oregon Ry., 17 I. C. C. 488, 489. (b) On 300 boxes of apples from Reno, Nev., to Alturas, Cal., complainant was assessed $1.70 per 100 lbs. De- fendant had in effect at the time a rate of $7 per ton on apples in carloads, and $13 per ton on less than carload lots from Alturas to Reno. Defendant oper- ated a narrow-gauge railroad 184 miles long. The rate attacked yielded more than 18c per ton mile and was much higher than that charged over narrow- gauge railroads in the same territory for similar distances. HELD, the rate charged was unreasonable to the extent that it exceeded $1. Reparation awarded. The question whether the $1 rate was still an excessive one left open for the future. Bunch & Tussey v. Nevada-Cali- fornia-Oregon Ry., 17 I. C. C. 506. (c) Defendant, Big Sandy & Cumber- land R. R., which is but seventeen miles long, is a narrow-gauge road, with the exception of two and one-half miles, and extends from Devon, W. Va., to Blackey, Va. It serves some 3,000 peo- ple engaged in the lumber industry. On total earnings of $48,710.99 it made a profit of some $12,000 per year. HELD, its rates should be reduced so as not to exceed for a distance of ten miles a rate of 20c for less than carloads and 15c for carloads, and for distances over ten miles 25c for less than carloads and 20c on carloads; that its demurrage rate upon cars held over forty-eight hours should be fixed at $1 per car; that the rate on malt and alcoholic liquors should be one and one-half times the merchan- dise rate, and on explosives, any quan- tity, one and one-half times the merchan- dise rate. Order establishing joint rates with the N. & W. Ry. denied, but the for- mation of a through route with said road ordered, with the privilege of publishing and using the local interstate rates pre- scribed as proportionals. Blankenship V. Big Sandy & Cumberland R. R. Co., 17 I. C. C. 569, 571. (d) The Uintah R. R. is the only railroad extending from Dragon, Utah, and surrounding territory to Mack, Colo., where it connects with the D. & R. G. R. R. This railroad was constructed and its stock owned by complainant's competitor, complainant being engaged in the mining of gilsonite in the vicinity of Dragon. Its competitor constructed this line from Mack to Dragon for the sole purpose of developing its gilsonite mines at the latter point and only did so after failing in its attempts to induce other railroads to construct a line. To increase the traffic of this road complain- ant's competitor built wagon roads from Vernal and Fort Du Chesne, points to the north producing live stock and wool, es- tablished a stage line to those points and constructed hotels at Dragon for the accommodation of passengers and cot- tages for the housing of employes. The distance from Mack to Dragon was fifty- four miles, the highest elevation being 3,500 feet above Mack. The average grade was 5 per cent, the heaviest grade 7^/^ per cent, and the curvature in some instances 75 degrees. The road was nar- row gauge, the country through which it ran was unproductive, the road required numerous culverts, and was subject to snow blockades, washouts and rock slides. Defendant assessed a rate of NEWS STAND— OVERCHARGES, §3 (b) 513 $10.00 per ton on gilsonite from Dragon to Mack. Gilsonite was a low grade commodity and under ordinary transpor- tation conditions would have taken a rate similar to lumber and coal. On mer- chandise defendant assessed for its part of the service 40c for traffic from the west and 30c for that from the east. On this traffic there was no competition with wagon transportation. The cost of the road with legitimate accessories, exclud- ing the wagon road and stage line to Vernal and Fort Du Chesne, was some $700,000. The net earnings for 1905 were $35,000, for 1906 some $47,000 and for eight months of 1907 some $91,000. Had complainant's competitor not constructed defendant road the expense of wagon haul to complainant between the points In question would have exceeded the $10.00 rate by from $2.00 to $3.00 per ton. HELD, that a just rate should be arrived at principally by comparing the cost of defendant railroad with appur- tenances, excluding the wagon road and appurtenances, with the net income de- rived, and that on such basis the rate charged was excessive to the extent that it exceeded $8.00 per ton. Reparation denied. American Asphalt Ass'n v. Uintah Ry. Co., 13 I. C. C. 196, 209, 211. NEWS STAND. See Auction Company; Terminal Fa- cilities, §3 (j); Transportation, §1 (m). NOTICE. Of Arrival — See Demurrage, §16. Of Cars — See Evidence, §39; Mini- mums, §3 (1), (j). Of Complaint — See Procedure Before Commission, §3. Of Loss — See Loss and Dam- age, §11. Of Commission's Orders — See Allowances, §3 (a). Of Un- loading Service — See Routing and Misrouting, §2 (e). To Shipper — See Facilities and Privileges, §11; Tariffs, §3 (3) ; Transportation, §6. OVERCHARGES. I. ACTIONS FOR RECOVERY. §1. Definition of overcharge. §2. Jurisdiction of Commission. §3. Jurisdiction of state courts. §4. Jurisdiction of U. S. courts. §5. Proof and evidence. §6. Right to attorney's fees. §7. Statute of limitations. II. DUTY TO REFUND. §8. In general. §9. Necessity of order. III. CRIMINAL LIABILITY. §10. In general. I. CONTROL AND REGULATION. §1. Definition of Overcharge. (a) The phrase "overcharge" as used by the Commission embraces only cases where carriers have demanded and re- ceived a rate in excess of the published rate. Tyson & Jones Buggy Co. v. Aber- deen & Asheboro Ry. Co., 17 I. C. C. 330, 332. (b) An overcharge is a charge col- lected above the lawful tariff rate. Copper Queen Consolidated Mining Co. V. L. & N. R. R. Co., Unrep. Op. 279. (c) Overcharges are charges collected in excess of those which should have been assessed under the published tariffs. Hendrie & Bolthoff Mfg. Co. v. S. Ry. Co., Unrep. Op. 380; Morris & Co. v. N. & W. Ry. Co., Unrep. Op. 411. §2. Jurisdiction of Commission. See Reparation, §6 (dd); Weights and Weighing, §2 (a). (a) On carloads of hay from Quapaw, I. T., to Kansas City, Mo., com- plainant was assessed at Kansas City a switching charge in excess of that lawfully published. The reasonable- ness of the published charge was not in question. HELD, the Commission had authority to award reparation in a case merely involving collection of a rate higher than that named in the published tariff. While the shipper might bring his suit in a court in the first instance, the Act also gave the Commission jurisdic- tion concurrent with that of the courts. Laning-Harris Coal & Grain Co. v. St L. & S. F. R. R. Co., 15 L C. C. 37, 39. §3. Jurisdiction of State Courts. See Courts, §11 (d), (e), (p), (z). (a) Where a carrier of an interstate shipment erroneously collects a sum in excess of the published charge a state court has jurisdiction to entertain a suit to recover the excess, since the case is not one involving the reasonableness of rates, and, therefore, it is not necessary for the shipper first to resort to the In- terstate Commerce Commission for re- lief. Kansas City S. Ry. Co. v. Tonn (Ark. 1912), 143 S. W. 577, 580. (b) Where a carrier has by mistake collected charges in excess of its pub- lished interstate rates a state court is 514 OVERCHARGES, §3 (c)— §5 (d) not deprived by the Interstate Commerce Act of jurisdiction over an action by the shipper to recover the excess. C. R. I. & P. Ry. Co. V. Lena Lumber Co. (Ark. 1911), 137 S. W. 562. (c) Where a carrier charges more than the interstate rate set out in the published schedule, an action will lie in the state court for the difference between the schedule rate and the rate exacted. Brantley Co. v. Ocean S. S. Co., 5 Ga. App. 844, 845, 63 S. E. 1129. (d) A shipper may recover the ex- cess collected over and above the rate filed with the Commission. Hardaway v. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1021. (e) A state court has jurisdiction un- der section 22 of the Act, providing that nothing therein shall abridge or alter existing remedies at common law, to en- tertain a suit to recover the excess col- lected by a carrier over and above the interstate rates published and filed with the Commission, since the cause of ac- tion arises at common law. Hardaway V. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1022. (f) Where the Interstate Commerce Commission has held a published rate to be excessive, a state court has jurisdic- tion under section 22 of the Act to en- tertain an action by a shipper to recover the excess exacted over and above the reasonable rate prescribed. Robinson v. B. & O. R. R. Co., 64 W. Va. 406, 411, 63 S. E. 323. §4. Jurisdiction of U. S. Courts. See Courts, §8 (c), §9 (b), §10 (b). (a) Where in a suit in a state court to recover an overcharge the interpreta- tion of the Act is involved to determine what were the legally applicable rates on the shipments in question, the Supreme Court of the United States has jurisdic- tion to review the decision of the state courts. Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573, 591, 32 Sup. Ct. 316, 56 L. ed. 556. (b) Where a suit to recover the ex- cess exacted over a lawfully published rate is started in a state court and re- moved on the ground of diversity of cit- izenship to a federal district court, juris- diction cannot be conferred on the latter court by agreement of the parties. Dar- nell V. L C. R. R. Co., 190 Fed. 656, 658. (c) The exclusive jurisdiction con- ferred upon United States courts in all actions for violation of the Interstate Commerce Act does not apply to an ac- tion to recover overcharges paid upon shipments made under a contract which was not made in violation of that Act. K. C. S. Ry. Co. V. Albers Com. Co., 79 Kan. 59, 60, 99 P. 819. §5. Proof and Evidence. See Reparation, §4 (g), §6 (n); Spe- cial Contracts, §2 (ff), (jj). (a) In September, 1901, certain con- necting railroads entered into a contract with a grain dealer, whereby they agreed to transport grain for him from Omaha, Neb., to Texarkana, Tex., through Kan- sas City, Mo., at a stipulated joint rate. No legally established joint rate was then in force on these roads between the points named. The contract specified the proportion of the stipulated rate each road was to receive. A large amount of grain was shipped over these roads at this rate. The rate was not established as required by law. Afterward the shipper commenced an action against one of the roads to recover overcharges paid to it upon its proportion of such rate for such shipment. HELD, that the failure to establish the rate as required by law could not be interposed as a bar to the action. K. C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 60, 99 P. 819. (b) Where the complaint in a suit by a shipper to recover the excess exacted above the quoted rate does not reveal on its face that the quoted rate was less than the schedule rate filed with the In- terstate Commerce Commission, the de- fendant carrier cannot prove such fact as a defense under a plea of the general issue. Baldwin Land Co. v. Columbia Ry. Co., 58 Or. 285, 291, 114 P. 469. (c) In a suit in a state court to re- cover an excess collected on interstate shipments over and above the rate filed with the Commission, the Commission will be presumed to have done its duty and directed the time and place and man- ner of publication, and the burden is on the carrier to show compliance there- with. Hardaway v. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1024. (d) In a suit in a state court to re- cover an excess collected on interstate shipments over and above the published rates, evidence that the carrier in the past carried the material in question as lumber is admissible on the question as to OVERCHARGES, §5 (e)— §8 (e) 515 what classification applies, where the jury is instructed that no device or agreement or custom of dealing can avail to make the shipment other than what it really is, and that they must determine its real character. Hardaway V. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1025. (e) In a suit in a state court to re- cover an excess collected over the pub- lished interstate rate it is proper for the court, on the question of the proper classification to be given the material in question, to instruct the jury that where a house has been torn down, the classification governing lumber might apply. Hardaway v. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1025. (f) In an action in a state court by a shipper to recover an overcharge a good defense is not made out by proof that the rate exacted was filed with the In- terstate Commerce Commission, but it is necessary, under section 6 of the Interstate Commerce Act relating to pub- lication of charges, that the rate set up be proved to have been filed at the sta- tion with the agent of the initial car- rier. Pecos River R. Co. v. Reynolds Cattle Co. (Tex. 1911), 135 S. W. 162, 163. (g) In an action in a state court to recover the excess exacted above a charge alleged to be a reasonable inter- state rate, the court will not take ju- dicial notice of a judgment of the Inter- state Commerce Commission holding the rate charged to be unreasonable, but the same must be proved. Robinson v. B. & O. R. R. Co., 64 W. Va. 406, 411, 63 S. E. 323. §6. Right to Attorney's Fees. (a) In an action in a state court to recover the excess exacted by a carrier over and above the published interstate rate, plaintiff is not entitled to recover an attorney's fee under any provision of the Interstate Commerce Act, granting in certain cases the right to shippers to recover such fee, since the suit is not to recover a penalty from the carrier for violation of the Interstate Commerce Act, but is in the nature of an action for money had and received by a carrier col- lecting a greater amount of charges than it was entitled to receive. Kansas City S. Ry. Co. V. Tonn (Ark. 1912), 143 S. W. 577, 581. §7. Statute of Limitations. See Claims, I. (a) In an action in a state court to recover the excess collected by a carrier over and above the published interstate rate, the two-year limitation period pre- scribed by the Interstate Commerce Act does not apply, and the period fixed by the state law is controlling. C. R. I. & P. Ry. Co. V. Lena Lumber Co. (Ark. 1911), 137 S. W. 562, 553. II. DUTY TO REFUND. §8. In General. See Reparation, §19 (p). (a) It is suggested that the shipper should not be deprived of his money as straight overcharges by any disagree- ment among the carriers as to which one was guilty of the overcharges, and should make the refund, as the Commission ought not to be troubled with suits growing out of differences of this kind. Edison Portland Cement Co. v. D. L. & W. R. R. Co., 20 I. C. C. 95, 96. (b) All carriers participating in the overcharge should share in its refund. Platten Produce Co. v. K. L. S. & C. Ry. Co., 18 L C. C. 249. (bb) It is not proper practice for the delivering carrier to make delay in refunding a clear overcharge until it can ascertain which carrier participating in the movement is responsible. The shipper is entitled to repayment from the carrier that has collected the freight charges as soon as it appears that an overcharge has in fact been made. Ty- son & Jones Buggy Co. v. A. & A. Ry. Co., 17 I. C. C. 330, 332. (c) A claim presented against the de- livering line, but not against connecting lines, is not barred as to the delivering line, though the complaint has no stand- ing as against the other lines, and the fact that the delivering line, who has collected an overcharge, has paid it to another carrier, does not excuse it from repayment of the same. Rehberg & Co. V. Erie R. R. Co., 17 1. C. C. 503, 510. (d) Where higher than the published charges are assessed in error, it is in- cumbent upon the carrier to make refund, irrespective of any other consideration. Forster Bros. Co. v. D. S. S. & A. Ry. Co., 14 L C. C. 232, 234. (e) Where the tariff on lumber from Ridge, Mich., to South Chicago is 12c 516 OVERCHARGES, §9 (a)— (1) per 100 lbs., and defendant carrier, by mistake, charges 13c on shipments of cedar cross-ties, it is the duty of the latter to refund the excess to the ship- per despite complainant's refusal to abandon a proceeding instituted to have the 12c rate declared unreasonable. For- ster Bros. Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. 232, 234. §9. Necessity of Order. (a) Straight overcharges should be and can be refunded without an order of the Commission. Priesmeyer Shoe Co. V. C. & A. R. R. Co., 23 I. C. C. 78, 80; Cohen & Co. v. Mallory S. S. Co., 23 I. C. C. '6li, 375; Casey-Hedges Co. v. A. G. S. R. R. Co., 23 I. C. C, 249, 250; American Cigar Co. v. P. & R. Ry. Co., 20 I. C. C. 81; Georgia-Carolina Brick Co. V. S. Ry. Co., 20 I. C. C. 148, 149; Na- tional Refrigerator & Butcher Supply Co. V. I. C. R. R. Co., 20 I. C. C. 64, 65; Pacific Coast Biscuit Co. v. S. P. & S. Ry. Co., 20 I. C. C. 546, 549; Riverside Mills V. G. R. R., 20 I. C. C. 423, 424; Isbell-Brown Co. v. M. C. R. R. Co., 15 I. C. C. 616, 617 (b) On a shipment of iron wagon axles from Wilkes-Barre, Pa., to Carth- age, N. C., an overcharge resulted from the inadvertent collection at destination of the fourth class, instead of the fifth class rate, as required under the pub- lished tariffs. Reparation awarded. Ty- son & Jones Buggy Co. v. A. & A. Ry. Co., 17 I. C. C. 330, 331. (c) The lack of practice among car- riers of failing to refund overcharges promptly is open to severe criticism. The retention of an overcharge by a carrier is not only an unjust discrimina- tion, but is a violation of the Interstate Commerce Act and the Elkins Act. When an overcharge has been discovered it should immediately be repaid by the car- rier that collected the charges, whether a demand has been presented by the shipper or not. The claims officers of carriers should be so organized as to enable them to dispose of all over- charge claims within thirty days, except those of unusual or special character, and such claims ought to be disposed of within sixty days at the utmost. Tyson & Jones Buggy Co. v. A. & A. Ry. Co., 17 I. C. C. 330, 331, 332. (cc) The carrier in the cases indi- cated in Administrative Ruling No. 70 of Tariff Circular 15-A may without any order of the Commission refund all ex- cess charges due to misrouting by its agent. The duty of the carrier is to charge and collect the lawful rate, no more and no less, and when more is collected the excess shonld be refunded, and when less the deficiency should be collected. Accrual of cause of action, 15 I. C. C. 201, 204. (d) Where an overcharge has resulted from the misrouting of cars it should be refunded by the carrier making the error without contribution by the other con- necting carriers. C. L. Flaccus Glass Co. V. C. C. C. & St. L. Ry. Co., 14 I. C. C. 333, 335. (e) Where a carrier has collected in excess of its published tariff it is its duty to refund such excess without spe- cific authority from the Commission. Gus Momsen & Co. v. Gila Valley, Globe & Northern Ry. Co., 14 I. C. C. 614. (f) Carriers should refund over- charges on stone paving blocks from Lithonia, Ga,, to Chicago. Georgia Rough & Cut Stone Co. v. Georgia R. R. Co., 13 I. C. C. 401, 404. (g) An overcharge resulted from the misapplication of the rate on a shipment of fiaxseed from Minneapolis, Minn., to Petaluma, Cal. Dickinson Co. v. C. St. P. M. & O. Ry. Co., Unrep. Op. 82. (h) The excess charge collected by C. P. R. R. and Soo Line, these carriers being parties to Pac. Coast Lumber Mfrs. Ass'n v. N. P. Ry. Co., 14 L C. C. 23, may be refunded under general orders issued in that case. Arrow Lum- ber & Shingle Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 145. (i) No order made for refund of an overcharge, carriers agreeing voluntarily to make refund. American Lumber Mfg. Co. V. C. of Ga. Ry. Co., Unrep. Op. 153. (j) Reparation awarded on a ship- ment of oats from Elk City, Okla., to Columbus, Ga., on account of a charge for overweight. Joseph Co. v. C. of Ga. Ry. Co., Unrep. Op. 166. (k) Charges assessed in excess of legal rate. Refund made. Complaint dismissed. Robinson Clay Product Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 276. (1) Reparation awarded on carload of lumber, as according to the tariffs a OVERCHARGES, §9 (m)— PANAMA CANAL 517 lower rate was properly applicable to the shipment. Germain Co. v. A. B. & A. R. R. Co., Unrep. Op. 277. (m) Charges collected above lawful tariff rate. Refund to be made. No order entered. Copper Queen Consoli- dated Mining Co. v. L. & N. R. R. Co., Unrep. Op. 279. (n) An overcharge resulting from er- roneous application of rate should be refunded without order of the Commis- sion. Emery, Bird, Thayer Dry Goods Co. V. C. & N. W. Ry. Co., Unrep. Op. 310. (o) Charges collected in excess of rate lawfully applicable, resulting over- charge may be refunded without an order of the Commission. Clover Leaf Lumber Co. v. L. Ry. & Nav. Co., Unrep. Op. 311. (p) Reparation awarded on ship- ments of grapes from Douville, Ga., to New York and Milwaukee, Wis., for charges collected in excess of published tariff. Douville v. G. F. & A. Ry. Co., Unrep. Op. 342. (q) Carriers assessed the higher of two possible combination rates. HELD, that an overcharge resulted, which should be refunded without an order from the Commission. Ottumwa Box Car Loader Co. v. W. R. R. Co., Unrep. Op. 382; Neosho Milling Co. v. K. C. S. Ry. Co., Unrep. Op. 450. (r) Certain rates applicable on coal when passing through screens of given dimensions. Rates charged in excess of those established. Reparation award- ed. Huerfano Coal Co. v. D. & R. G. R. R. Co., Unrep. Op. 390. (s) Charges assessed in excess of actual weight. Reparation awarded. Sonneland v. M. P. Ry. Co., Unrep. Op. 399. (t) Charges assessed for the trans- portation of soda water fountain based upon a rate applicable to the shipment when crated, instead of basing rate upon shipment when boxed. Overcharge to be refunded. Imperial Candy Co. v. C. B. & Q. R. R. Co., Unrep. Op. 412. (u) Combination based on point tak- ing higher rate. Should be refunded. Alabama Lumber & Export Co. v. C. of Ga. Ry. Co., Unrep. Op. 442. (v) No joint through rate in effect; highest combination charged. Should be refunded without order of Commission. Browne Grain Co. v. M. L. & T. R. R. Co., Unrep. Op. 499. (w) A shipment of advertising mat- ter (printed cards) was erroneously charged by defendants at rate applicable on "Christmas, Easter and Souvenir" cards. Refund of overcharge directed. Haas & Sons v. P. R. R. Co., Unrep. Op. 578. III. CRIMINAL LIABILITY. See Crimes, V. §10. In General. (a) It is as unlawful for a carrier to overcharge the shipper as to give re- bates. Criminal prosecutions will follow if overcharges are not promptly refunded when admittedly due. Interstate Grain Co. V. C. & N. W. Ry. Co., 22 I. C. C. 34, 35. (b) There should be no necessity for appealing to governmental authority to award damages for plain overcharges. It is the plain duty of the carriers to col- lect no more than the published rate. To do otherwise is a crime, for which indictment would lie, and for which there is serious punishment provided in the law against both the carrier and its agent. When there is a contest between the shipper and the carrier as to the lawful rate applicable arising out of an obscure tariff there may properly be an appeal to the Commission to give con- struction to the schedule. The law ex- pressly makes it illegal for a carrier to exact more than the lawful rate, and the Commission will regard it as its duty henceforward to enforce this pro- vision by indictment in cases where the carrier appears wilfully to have required payment of an illegal amount or refuses to make restitution immediately upon Its attention being called to its improper and unlawful action. National Refrig- erator and Butcher Supply Co. v. I. C. R. R. Co., 20 L C. C. 64, 65. (c) The retention of an overcharge by a carrier is not only an unjust dis- crimination, but is a violation of the Interstate Commerce Act and the El- kins Act. Tyson & Jones Buggy Co. v. A. & A. Ry. Co., 17 I. C. C. 330, 332. PANAMA CANAL. §ee Evidence, §42. 518 PASSENGER FARES AND FACILITIES, §1 (a)— §2 (d) PASSENGER FARES AND FACILITIES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. REASONABLENESS. §2. In general. §3. Basing fares. §4. Certificate plan. §5. Commutation fares. §6. Mileage and excursion rates. §7. Party rates. §8. Validation. III. DISCRIMINATION IN FACILITIES. §9. In general. §10. Baggage. §11. Colored passengers. §12. Free transportation. §13. Stations. §14. Through routes and rates. IV. CLAIMS FOR DAMAGES. §15. Errors of ticket agents. §16. Lost tickets. I. CONTROL AND REGULATION. See Crimes, §7 (c); Evidence, §1 (dd); Tlirough Routes and Joint Rates, §2 (f). §1. Jurisdiction of Commission. See Act to Regulate Commerce, II (u); Courts, §11 (s) ; Special Con- tracts, §4 (1) (L); Tariffs, §1 (a). (a) The frequent repetition in the Act of the phrase "passenger or freight" clearly indicates that a carrier of pas- sengers only is as subject to regulation by the Commission as is a carrier of both freight and passengers. O. & C. B. St. Ry. Co. V. I. C. C, 191 Fed. 40, 48. (aa) The Commission has no juris- diction over alleged unreasonable charges of a transfer company where the railroad carrier does not undertake to make delivery of passenger baggage at residences for rate of fare stated in tariffs. Unless the railroad carrier un- dertakes to make delivery at residences for the rate of fare in the tariff, the carrier's duty to the public begins and ends in the baggage room. Cosby v. Richmond Transfer Co., 23 I. C. C. 72. (b) The Interstate Commerce Com- mission has jurisdiction over commu- tation fares and charges. Commuta- tion Rate Case, 21 I. C. C. 428, 443. (c) Passenger traffic is comprehend- ed in the Act, although owing to the relative importance of freight and pas- senger transportation necessarily in- creased attention is given to the for- mer and minimized discussion to the latter. West End Improvement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 244. (d) The Act applies to both passenger and freight business. West End Im- £ provement Co. v. O. & C. B. R. & B. f Co., 17 I. C. C. 239, 244. (e) The Act empowers the Commis- sion to establish a through passenger route and joint rate, provided no satis- factory through route already exists. In Re Through Passenger Routes, 16 I. C. C. 300, 301. (f) The Commission has no authority to order carriers to re-establish special party rates accorded in the past by them to theatrical companies and other special organizations engaged in giving public exhibitions. Field v. Southern Ry. Co., 13 L C. C. 298, 298. II. REASONABLENESS. §2. In General. (a) The great cost of elevating tracks, increase in taxes, increase in payroll and cost of the use of a tun- nek may be taken into consideration by a carrier in readjusting its rates, but in doing so the carrier cannot de- mand more than a reasonable charge for the service. Commutation Rate Case, 21 L C. C. 428, 449. (b) Through passenger business can be carried at lower rates than strictly local business. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 228. (c) Where passenger rates are found unreasonable and reduced rates prescribed, the sparcity of population is hardly a controlling inquiry; the ques- tion is rather how much passenger business the lines handle and under what circumstances. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 L C. C. 218, 227. (d) Complainant attacked the first- class one-way passenger fares in both directions between Salt Lake City, Og- den and Provo, Utah, to Denver and Omaha. The present rate from these points is obtained by applying a 3c mileage scale to the actual distance via the U. P. R. R. from Ogden, that being the short line distance. The fare to Portland from Salt Lake City, 945 PASSENGER FARES AND FACILITIES, §2 (e)— §3 (b) 519 miles, is $27, about 2.86c per mile being also attacked. HELD, that while the present 3c fare upon the Union Pacific lines might be somewhat re- duced, upon the present investigation the Commission is inclined to hold that the complaint is not sustained. Com- mercial Club of Salt Lake City v. A. T. & S. P. Ry. Co., 19 I. C. C. 218, 229. (e) Complainants attacked the pas- senger fares both ways from Ogden, Salt Lake City and Provo, Utah, to San Francisco, Cal, From Ogden the distance being 70. miles and the fare $30, about 3%c per mile. HELD, that the fare from Ogden should not exceed $23.68, from Salt Lake City $24.69, from Provo $26.04. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 229. (f) Complainants attacked the pas- senger rates in both directions from Salt Lake City, Provo and Ogden, Utah, to Los Angeles, Cal. From Salt Lake the distance is 781 miles, the fare $30, being 3%c per mile. HELD, the rate between Salt Lake and Provo to Los Angeles should not exceed $25 and from Ogden $26.10. Commercial Club Salt Lake City v. A. T. & S. F. Ry. Co., 19 L C. C. 218, 229. (g) Complainant charged ' a passen- ger fare of $15.95 from Waco, Tex., to Cairo, 111., and shortly thereafter a fare of $19.85 on the return journey. The difference in charges was due to the fact that the carriers on account of the complicated state of their tariffs had been unable to restore the north-bound fare of $19.85 after the injunction of the 2c fare laws in Arkansas and Mis- eouri; although they had promptly re- stored the $19.85 south-bound fare on account of the simplicity of the sched- ules involved. Complainant offered no evidence as to the unreasonableness of the south-bound fare exacted except the fact of the lower north-bound fare paid by him. HELD, the south-bound fare exacted was not shown to be un- reasonable. The mere fact that a rate or fare in one direction exceeds the rate or fare between the same points In the opposite direction is not a con- trolling test of the unreasonableness of the higher fare, nor does it in itself necessarily constitute an unreasonable discrimination. Littell v. St. L. S. W. Ry. Co., 18 I. C. C. 187, 189. (h) Volume of passenger traffic would be stimulated by suggested reduc- tions, thus compensating for loss of revenue. Weber Club & Intermoun- tain Fair Ass'n v. O. S. L. R. R. Co., 17 I. C. C. 212, 217. (i) The general rule as to passen- ger fares must be the same as to freight rates. Kurtz v. Penn R. R. Co., 16 J. C. C. 410, 415. (j) There appears to be no differ- ence in principle between passengers and freight, so far as comparisons be- tween combinations of local rates and through rates are concerned. U. S. v. B. & O. R. R. Co., 15 L C. C. 470, 471. §3. Basing Fares. (a) It is lawful for a carrier or carriers having duly established in the Tianner required or authorized by law any form of excursion, commutation, or mileage fares, to provide in their sched- ules for the use of any of said fares as basing fares, thus enabling other car- riers to use the same, in connection with their own duly established fares, for the through transportation of passengers on any physical line of connecting carriers, upon a combination of tickets over all of the component parts of such through lines, and for the carriers composing or operating such through line to afford through sleeping car, baggage, checking and other through accommodations in the same manner as in case of through tickets over the entire line, provided the passenger demanding such through trans- portation and through accommodation shall present to the initial carrier at the point of starting the lawfully authorized tickets covering the lines necessary for the entire through journey. It, how- ever, is not deemed lawful for a carrier to check a passenger's baggage beyond the point to which he presents tickets at the point of starting, upon the mere declaration of intention to go farther upon another ticket, to be thereafter purchased or otherwise. In Re Mileage, Excursion and Commutation Tickets, 23 I. C. C. 95, 96. (b) Upon duly established tariff au- thority therefor the initial carrier may issue to a passenger a through ticket for the sum of two or more duly es- tablished fares applicable over the several connecting roads composing the through physical line from the starting point to destination, or may issue ad- 520 PASSENGER FARES AND FACILITIES, §4 (a)— §5 (e) ditional or separate ticket or tickets at lawful tariff fares therefor, which, in connection with the ticket or tickets already held by the passenger, will cover the entire journey that the pas- senger desires to take. In Re Mileage, Excursion and Commutation Tickets, 23 I. C. C. 95, 97. §4. Certificate Plan. (a) Defendant carriers published tar- iffs for the letter carriers' convention at St. Paul, Minn., 1909, which carried the provision that a rate of a fare and a half on the certificate plan would apply to this occasion from points east of the Missouri River, on condition that a thousand or more persons be in at- tendance by rail, holding certificates which show the purchase of one-way tickets at a dollar or more. It was also provided that passengers must pur- chase one-way tickets at place of meet- ing or normal (not special or reduced) one-way fare and obtain a certificate receipt. The receipt, when signed by the secretary of the meeting and stamped by the joint agent, to be hon- ored for "delegate" return ticket at re- duced fare. Attendance at the conven- tion was over 1,400, but there were only 888 certificates. The St. Louis delega- tion purchased 106 summer tourist's round-trip tickets, St. Louis to St. Paul and return, and the Kansas City dele- gation 391/4 round-trip tickets, Kansas City to St. Paul and return. The agent refused to validate any certificates un- less there were 1,000 or more present, and would not allow the tickets from St. Louis to Kansas City to be counted. HELD, that the certificate plan be ap- proved; that the tariffs must control, and that reparation would not be al- lowed to those certificate holders who had been compelled to pay the full fare on the return. National Ass'n of Let- ter Carriers v. A. T. & S. F. Ry. Co., 20 I. C. C. 6. §5. Commutation Fares. See Supra, §1 (b), §3 (a); Commuta- tion Fares; Through Routes and Joint Rates, §22 (I). (a) Complainants attacked the pro- posed new commutation fares between New York City and points in the state of New Jersey as unjust, extortionate and unreasonable. HELD, that the car- riage of a commuter differs in many respects from other passenger traffic, and is an independent and a special service and a special kind of traflac. This being the case, the reasonableness of the fares demanded for the service may be looked into by the Commission under section 1 of the Act. The new commutation rate of the Central of New Jersey R. R., which ranges from $5.95 for ten miles up to $10.35 for 40 miles, is held reasonable, and these rates are taken as a standard, and under that view the new fares of the Erie, Lackawanna and West Shore railways, being approximately the same, are not unreasonable. The new rates of the Pennsylvania Co., which range from $6.25 for 10 miles to $16 for 40 miles, are unreasonable and should not exceed more than $10 for the commuta- tion tickets from New Brunswick to New York, 31.3 miles, rates for other distances being adjusted relatively. Commutation Rate Case, 21 I. C. C. 428. (b) Commutation fares are entirely different from mileage books. Commu- tation Rate Case, 21 I. C. C. 428, 434. (c) A carrier that has not under- taken a commutation service may pos- Bibly not be compelled to do so under the present law, but whether, having done so, it can withdraw such service, is another question. Commutation Rate Case, 21 I. C. C. 428; 437. (d) As applied to passenger traffic, commutation seems to signify the pay- ment in a single sum of the cost to the traveler for transportation, limited in point of time or in the number of trips, between two designated points. Appar- ently it implies also a fare per trip that is less than the normal fare for a one-way journey. Commutation Rate Case, 21 I. C. C. 428, 438. (e) The prosperity and growth of many communities throughout the coun- try depend upon an efficient and reason- able commutation service. Many such communities have not only been encour- aged by the carriers, but were, in fact, originally established largely on their ini-. tiative. Suburban property has been bought, homes have been established, business relations made, and the entire course of life of many families adjusted to the conditions created by a commuta- tion service. This may not have been done on the theory that the fares in ef- fect at any particular time would always be maintained as maximum fares, but countless homes have been established in suburban communities in the belief that PASSENGER FARES AND FACILITIES, §5 (f)— (i) 521 there would be a reasonable continuity in the fares, and that the carriers in any event would perform the service at all times for a reasonable compensation. S burban communities have grown into existence on the theory, voluntarily ac- cepted by the carriers as well as by the public, that one who makes daily use of an agency of transportation between his place of business and his home must necessarily be accorded a special and a low rate. This theory is firmly fixed in the history and traditions of transporta- tion by rail and must, therefore, be re- garded as embraced in the law under which such transportation is regulated. Commutation Rate Case, 21 I. C. C. 428, 437, 442. (f) Commutation traffic stands by it- self as a special and distinct kind of service, for which the carrier may de- mand no more than a reasonable compen- sation. Excursion traffic is sporadic and occasional, and altogether exceptional. Unlike excursion traffic, commutation traffic is neither occasional nor sporadic, but, on the contrary, is characterized by an unusual regularity in volume; it may be accurately measured and provided for more readily than in the case of any other kind of passenger traffic. It is ordi- narily constant, except as it may gradu- ally grow in volume. Its stability is established by the juxtaposition of a community of homes and a community of workshops; and this separation of the place of residence from the place of work is in many cases the direct result of the efforts of the carrier. It has been encouraged, developed and fostered by the carriers, and large and numerous sub- urban communities have grown up in the belief, not that some fare less than the normal full passenger fare would be de- manded in the future, but in the belief that no more than a just and reasonable fare w^ould at any time be exacted, con- sidering the special character of the traffic and of the service and the condi- tions that differentiate both the traffic and the service so completely and abso- lutely from all other kinds of passenger traffic and service. That it has been re- garded as a different class of traffic con- ducted under entirely different conditions and a different kind of service is shown, not only by the origin of commutation and the subsequent traditions that have accu- mulated with its growth, but by the gen- eral recognition of it by the carriers themselves as an indepen lent and a spe- cial service. This being so, there is no reason why the reasonableness of the fares demanded for the service may not be looked into by the Commission under section 1. It is conceded on behalf of the principal complainant that a carrier mi. 7 not be compelled under the present law to undertake a commutation service and to establish commutation rates. That is probably true. But having undertaken a definite and regular commutation service, such as is shown of record on the part of each of the defendants in this pro- ceeding, the power as well as the duty of the Commission under section 1 to ex- amine into the reasonableness of the charges exacted when complaint has b3en made seems to be beyond question. Read- ing section 22 (which provides "that nothing in this Act shall prevent . . . the issuance of mileage, excursion or commutation passenger tickets") in the light of the special nature and character of commutation traffic and service, the utmost that reasonably may be said of it as applied to commutation tickets is that it constitutes a statutory recogni- tion of the fact that commutation is a different kind of traffic. Commuta- tion Rate Case, 21 I. C. C. 428, 441, 442, 443. (g) Improvements which required ex- penditures of large sums of money, which have added to the efficiency- of the serv- ice, and therefore to its value to the commuters, are entitled to some recog- nition in determining the reasonableness of the increased commutation rates. Commutation Rate Case, 21 I. C. C. 428, 444. (h) The administrative ruling of the Commission adopted October 12, 1908, holding it unjustly discriminatory for a carrier to offer special rates on monthly commutation tickets to school children, and to deny such rates to other children of the same age, is upheld, but under the ruling the carrier may offer special rates to children between certain ages, pro- vided same is open to all persons within the age limits prescribed. In Re Com- mutation Tickets to School Children, 17 I. C. C. 144. (i) A carrier may determine for itself whether it will sell commutation tickets; but if it elects to sell them, it must do so subject to the provisions of the Act. Weber Club & Intermountain Fair Ass'n V. O. S. L. R. R. Co., 17 I. C. C. 212, 216. 522 PASSENGER FARES AND FACILITIES, §« (a)— (1) §6. Mileage and Excursion Rates. See Advertising, I; Mileage Scale. (a) Carriers are permitted but not compelled to establish excursion, commu- tation and mileage tickets; but are not at liberty to discriminate with respect thereto. In Re Mileage, Excursion and Commutation Tickets, 23 I. C. C. 95, 96. 96. (aa) The volume of traffic, competi- tion and other conditions may justify lower excursion fares to Atlantic City from New York than from Baltimore. Merchants & Mfrs.' Ass'n of Baltimore V. A. C. R. R. Co., 23 I. C. C. 129. (b) Though exceptional cases may re- quire a different conclusion, ordinarily a carrier may refuse to continue to issue excursion tickets lower than its normal fares. Commutation Rate Case, 21 I. C. C. 428, 437. (bb) With respect to some kind of ex- cursion traffic, section 4 has been applied by the Commission. Commutation Rate Case, 21 I. C. C. 428, 442. (c) Unusual conditions may require the enforcement of sections 2 and 3, as regards excursion tickets, though the Commission has not yet done so. Com- mutation Rate Case, 21 I. C. C. 428, 442. (d) Section 1, requiring that all rates must be reasonable, has, it seems, no real application to mileage books, and though an exceptional case might require a dif- ferent conclusion, a carrier ordinarily may refuse to continue to issue mileage tickets lower than its normal fares. Commutation Rate Case, 21 I. C. C. 428, 437, 442. (e) Exchange orders are issued volun- tarily, and carriers may therefore attach reasonable and non-discriminatory regu- lations to their use. Eschner v. Penn. R. R. Co., 18 I. C. C. 60, 64. (f) Mileage books carriers issue vol- untarily, and therefore may attach thereto reasonable and non-discrimina- tory regulations. Eschner v. Penn. R. R. Co., 18 I. C. C. 60, "64. (g) Defendant joined in the sale of a book known as an exchange order and good only west of Pittsburgh, by which the purchaser obtained a reduction of the regular fare. It issued a similar book called a mileage book, good only east of Pittsburgh. Complainant presented to defendant's ticket agent at Cleveland, O., both an exchange order and a mileage book and demanded the through checking of his baggage and a through Pullman ticket from Cleveland to Philadelphia. His request was refused, and he was com- pelled to recheck his baggage at Pitts- burgh and buy a new Pullman ticket at Pittsburgh for Philadelphia. HELD, de- fendant's practice in this respect was not unreasonable or unduly discriminatory, since defendant was entitled to refuse certain accommodations accorded to pur- chasers of tickets in view of the lower rate granted complainant by the mileage books, and since complainant was free to purchase regular tickets for himself. Eschner v. Penn. R. R. Co., 18 I. C. C. 60, 63. (h) The language of section 22 of the Act, to the effect that nothing in the Act shall prevent the issuance of mileage, ex- cursion or commutation passenger tick- ets, is permissive and does not give the Commission any authority to require in- terstate carriers to sell interstate trans- portation in that form. Eschner v. Penn. R. R. Co., 18 L C. C. 60, '63. (i) The right to use exchange order and mileage books is in the nature of a privilege, and must be accepted with all the lawful limitations that may be at- tached. Eschner v. Penn. R. r' Co., 18 I. C. C. 60, 64. (j) In extending the privilege of mile- age, excursion and commutation tickets, a carrier may attach to them conditions as to the checking of baggage, purchase of Pullman accommodations, etc., so long as the conditions result in no violation of any provision of the Act. Eschner v. Penn. R. R. Co., 18 I. C. C. 60, 64. (k) Mileage, commutation or excur- sion tickets, when published for sale, must be open impartially to all. Weber Club & Intermountain Fair Ass'n v. O. S. L. R. R. Co., 17 L C. C. 212, 216. (1) The Mormon Church held two con- ferences each year at Salt Lake City — in April and October. Defendants at such times granted round-trip tickets for the price of one fare. During the October conference, the state fair was also held at Salt Lake. Ogden' held its fair dur- ing the fall, and defendants refused to grant round-trip tickets for less than a fare and a third. From many points north, east and west of Ogden, passengers might make the trip through Ogden to Salt Lake and back for less than the round trip at one and one-third fare to PASSENGER FARES AND FACILITIES, §6 (m)— §8 (a) 523 Ogden. The statistics relating to the movement of passengers through Ogden to attend the fall conference at Salt Lake as compared with the movement to <^''- den for attendance upon the latter's fair did not indicate that any great prejudice was being worked against Ogden. HELD, defendants were not shown to have un- duly discriminated against Ogden. U must ordinarily be left with the carrier to determine the place, the time and amount of an excursion rate, but it is conceivable that by the granting of re- duced transportation under the guise of excursion rates the most serious and unjustifiable discrimination might be worked. The Commission is not pre- pared to admit that under no circum- stances could it inquire whether undue discrimination had arisen from the issu- ing of mileage commutation or excur- sion tickets, but the statute itself author- izes discrimination in permitting the is- suance of excursion tickets, and it is only in cases where this privilege has been plainly abused that the Commission would be justified in interfering. Weber Club (fe Intermountain Fair Ass'n v. O. S. L. R. R. Co., 17 L C. C. 212, 216. iich a ticket is presented upon a mere declaration of intention to go farther. In Re Mileage. Excursion and Commuta- tion Tickets, 23 I. C. C. 95, 96. (e) The caprice, or even a proper de- sire, of an occasional passenger should not govern, but if any considerable part of the traveling public reasonably prefer to use some other route rather than the one existing, then the existing route can- not be called a reasonable and satisfac- tory through route. In the Matter of Through Passenger Routes via Portland, Ore., 16 I. C. C. 300, 303. (f) In freight it is possible to dis- tinguish between different commodities and to establish a through route as to one and not as to another; with passengers whatever joint rate is ordered must be kept open to the general public. In Re Through Passenger Routes, 16 I. C C 300, 303. (g) The Commission instituted pro- ceedings to compel the N. P. Ry. Co. to join in the sale of through passenger tickets between Seattle and other points in the northwest and eastern destinations via Portland, Ore., and to accord through facilities over that route. Portland may be reached via Omaha, Kansas City and other Missouri River points over the U. P. R. R., in which case the passenger is carried over the N. P. Ry. only from Port-'i land to Seattle. The N. P. Ry. refused: to establish a through rate with the U. P. R. R., since such rate tended to give it only a small part of the through haul and to divert passenger traffic to the U. P. R. R., from the route via St. Paul over the N. P. Ry. On the route via St. Paul over the N. P. Ry. to Tacoma and Se- attle, the passenger received as low rates and as good service as over the U. P. R. R., but the evidence disclosed that many travelers preferred to go by the U. P. R. R. on account of climate, scenery, the desire to see the western country around Omaha, Ogden and other points, to use stopover privileges and visit friends at those points, etc. It also ap- peared that the lack of through transpor- tation through Portland, and the conse- quent necessity for purchasing tickets and rechecking baggage from Portland to Seattle caused great inconvenience to the traveling public and resulted in r larger cost for the trip to Tacoma and Seattle.- At the time of the hearing a passenger at Chicago might travel on a through ticket via St. Paul on the Canadian Pacific lines to Sumas, thence over the N. P. Ry. to- Tacoma, the distance between Sumas and Tacoma being 160 miles, or he might go via St. Paul on the Gt. N. Ry., the N. P. Ry. securing the transportation from Seattle to Tacoma, a distance of 41 miles. V'hen the passenger traveled via Port- land, the N. P. Ry. obtained a haul of 14^ miles. HELD, the demand of the traveling public for a through route via Portland was a reasonable one and such route should be established on passenger traffic. (Knapp, Comm'r, dissenting.) In the Matter of Through Passenger Routes via Portland. Ore., 16 L C. C. 300, SOS-'^'^P; reversed, I. C. C. v. N. P. Ry. Co., 216 U. S. 538, 544, 30 Sup. Ct. 417, 5^ L. ed. 608, on the ground that the evidence indi- cr.ted that a reasonable and satisfactory route already existed via the N. P. R^„; and the order of the Commission was^ 530 PASSENGER FARES AND FACILITIES, §14 '(h)— §15 (b) based not on the absence of such a route, but on the desirability of a new route in order to enable passengers to ^isit ci'^ies not reached by the northern lines for the purpose of searching for homesteads and enjo: ing natural beauties. (h) The through passenger rates from eastern points via Portland to Tacoma and Seattle should be the same as those in effect via the N. P. Ry. and its present connections. No opinion is expressed touching the division of these rates. The local fare, however, upon the line of the Northern Pacific is not of necessity the measure of its division. In the Matter of Through Passenger Routes via Port- land, Ore., 16 I. C. C. 300, 310. (i) The through fare from New Castle, Pa., to New York via Pittsburg was $11.75, the route being over the Penn. Co. to Pittsburg, thence over the Penn. R. R. Co. to New York, said carriers being separate and distinct. The regular fare from Pittsburg to New York was $10.50 and from New Castle to Pittsburg $1, making a combination of $11.50. The New Castle to Pittsburg rate was formerly $1.25, the $1 rate hav- ing been put in force upon the passage of the 2c rate law by the Pennsylvania legislature, but not published, and avail- able, for the construction of an inter- state rate. The complainant purchased a ticket for $1 from New Castle to Pitts- burg and presented it, together with his mileage book over the Penn. R. R., to the Pullman Co., demanding a through berth from New Castle to New York. The tariff of the Pullman Co. provided that accommodations in its cars should be sold only to passengers holding trans- portation required by the railroad con- cerned. HELD, the Pullman Co. prop- erly refused to sell a berth to complain- ant upon the transportation offered by him, but that defendant carrier should revise its through rate from Pittsburg to New York so that it should not ex- ceed the combination of locals. Kurtz v. Penn. Co., 16 I. C. C. 410, 414, 415. (j) A passenger may properly pay a fare to the state line and again from the state line to destination, though he thereby obtains through transportation for less than published through rate, and though deliberately seeking this means of obtaining transportation at less than the through rate. Kurtz v. Penn. Co., 16 I. C. C. 410, 413. (k) While in some cases a higher through passenger fare may be main- tained than the sum of the local fares, such fare can only be so maintained under peculiar circumstances and for special reasons. Kurtz v. Penn. Co., 16 I. C. C. 410, 415. (1) If carriers maintain through pas- senger fares made up of the sums of locals they should use the lowest scale available, especially when the higher lo- cal includes privileges not directly per- taining to the transportation and of which the through passenger does not care to avail himself. U. S. v. B. & O. R. R. Co., 15 I. C. C. 470, 472. (m) Circumstances can rarely exist which would justify charging a passen- ger more for a through ride between two points than the combination of locals between the same points, where the lo- cals have been voluntarily established. U. S. V. B. & O. R. R. Co., 15 L C. C. 470, 471. (n) On the transportation of passen- gers from Pittsburg, Pa., to Newport, R. I., defendant assessed a through rate via New York of $12.50. Defendant's lo- cal fare from Pittsburg to New York, in- eluding stop-over privileges, was $10.50, and without said privileges $9.00. The $12.50 rate complained of was $1.50 in excess of said $9.00 local plus the local from New York to Newport. Defend- ant put in said $9.00 local in competition with another carrier. HELD, since the higher local included privileges not di- rectly pertaining to transportation and of which the through passenger did not care to avail himself, the through rate should have been based on a combination of the lower locals, and is unreasonable, Reparation awarded. U. S. v. B. & O. R. R. Co., 15 1. C. C. 470, 472. IV. CLAIMS FOR DAMAGES. See Association, I (c). §15. Errors of Ticket Agents. See Supra, §14 (d); Tariffs, §3 (2). (a) Damages may be awarded where additional charges accrue as a result of •■he error of the carrier's agent in in- dorsing an excursion ticket. Gorman v. C. & O. Ry. Co., 21 L C. C. 613. (b) Complainant bought a round-trip ticket from Norfolk, Va., to San Fran- cisco, Cal., for $105.30. By a note in the tariff the ticket was not good on the Overland Limited from Chicago west. PASSENGER FARES AND FACILITIES, §15 (c)— PASSES 531 For $136.80 a round-trip ticket from Nor- folk could have been obtained that was good on any train. Complainant, when he bought the ticket, was not told of the restriction in the tariff and, in fact, the agent of the defendant had reserved a berth for him on the Overland Limited. At the advice of the agent of the C. & N. W. R. R., not a party to this proceed- ing, but over whose line complainant traveled in the Overland Limited, com- plainant purchased another ticket from Chicago to San Francisco and return to St. Louis, Mo., for which he paid $105.75. In this way complainant paid for his transportation from Norfolk to San Fran- cisco and return $211.05. HELD, repara- tion should be awarded for the difference between the amount complainant paid and the sum of $136.80, for which he could have obtained the same transporta- tion but for the error of defendant's agent. Gorman v. C. & O. Ry. Co., 21 I. C. C. 613. (c) Complainant desired to go from Elko, Nev., to San Francisco and re- turn, and applied to the agent of the S. P. Co. at Elko for a return ticket. The agent had no such ticket and in- formed him to get a round-trip ticket from Elko to Reno and from Reno to San Francisco. Complainant attempted to do this, and purchased a return ticket from Elko to Reno, but the train upon which he was riding did not stop long enough at Reno to permit him to pur- chase a round-trip ticket, and he was compelled to pay his fare to San Fran- cisco and purchase tickets at San Fran- cisco back to Reno. HELD, the only way in which complainant could obtain passage from Elko to San Francisco and back was to buy a one-way ticket each way and the ticket agent at Elko had no authority to bind the company by any suggestion of thei sort which he 'made, and that complainant cannot recover the difference between the amount paid by him and what he would have been com- pelled to pay had he been able to pur- chase the round-trip ticket at Reno. Bal- lin V. S. P. Co., 19 I. C. C. 503. (d) Complainants purchased round- trip tickets from Bloomfield, la., to Og- den, Utah, of which only the going cou- pons were given to complainants, with an exchange coupon attached to be pre- sented by them to the agent at Ogden in exchange for return coupons, which the selling agent was supposed to mail to the Ogden agent immediately after the purchase of the tickets. The tickets gave stop-over privileges at any point on the going or the return journey. The selling agent failed to mail the coupons to the Ogden agent, and the latter gave to the complainants return tickets with- out the stop-over privilege. Complain- ants made the journey for the purpose of getting employment as fruit pickers and claimed that on account of their inability to stop off at a certain point on the re- turn journey they failed to secure em- ployment at that point and suffered a loss of $200 wages. HELD, the proof of damages was too speculative to entitle complainants to recover. Allender v. C. B. & Q. R. R. Co., 16 I. C. C. 103, 105. (e) Where a carrier by mistake issues an interstate passenger ticket expiring before the date called for by the terms of the oral sale to the passenger- it does not violate the Interstate Commerce Act so as to subject itself to criminal prose- cution, if it permits the passenger to ride on the ticket after the expiration date. I. C. R. R. Co., v. Fleming (Ky. 1912), 146 S. W. 1110, nil. (f) Where an agent inadvertently sells a passenger ticket at less than the lawfully published rate, the carrier is not liable for failure to honor such ticket, since every person dealing with an in- terstate carrier is as effectually bound by the law and the orders of the Com- mission as is the carrier himself, and neither party may be estopped from as- serting the illegality and validity of a contract made in violation of the inter- state commerce law and the orders of the Commission. Melody v. G. N. Ry. Co., 25 S. D. 606, 610, 127 N. W. 543. §16. Lost Tickets. (a) Complainant lost a commutation ticket issued under a tariff that provided refund would be made only when the lost ticket was found and returned to the proper officer of the issuing company. The ticket was never used apparently by the finder and defendant refused to make refund on account of the tariff. HELD, that the condition in the tariff is unreasonable and discriminatory, be- cause many cases exist in which recov- ery of a lost ticket is impossible. Repara- tion awarded. Moore v. N. Y. & L. B. R. R. Co.. 20 I. C. C. 557. PASSES. See Crimes, III. 532 PAST RATES, PRECOOLING, II (d) PAST RATES. See Evidence, §29. PEDDLER CAR SERVICE. See Refrigeration, §3 (c). (a) The operation of the peddler car is as follows: The car is iced, for the service must in all cases be under re- frigeration, and loaded by the packer with fresh meats and packing house prod- ucts, in whatever quantity and proportion may be desired. The car is then trans- ported to the first unloading point, where it is opened and a portion of the con- tents removed. From thence it goes to the next unloading point, and so on to its final destination. The work of unloading is performed by the employes of the car- rier in the same manner that local freight is unloaded at the various stations, no special or additional storage facilities being provided. The initial icing is by the packer and if any subsequent icing is needed the packer pays for the ice actually used. In Re Investigation of Unreasonable Rates on Meats, 23 I. C. C. 65o, 670. (b) Carriers should publish tariffs according peddler car service on packing house products and fresh meats from Oklahoma City and Wichita to various points in Oklahoma, Texas and New Mex- ico; the rate upon packing house prod- ucts should be 130 per cent and upon fresh meats 150 per cent of the carload rate; and a minimum may be required equivalent to the earnings upon 10,000 lbs. of fresh meat to the most distant point. Refrigeration should be provided or paid for by the shipper in addition to the above rates. In Re Investigation of Unreasonable Rates on Meats, 23 I. C. C. 656, 670. PERCENTAGE SYSTEM. See Reasonableness of Rates, §16 (cc). PHYSICAL VALUATION. See Interstate Commerce Commission, §8; Evidence, §49 (aa). POTENTIAL COMPETITION. See Discrimination, §8 (5) (h); Long and Short Haul, §10 (I), (z) ; Rea- sonableness of Rates, §8 (h), (n), (o). PRECOOLING. I. JURISDICTION OF COMMISSION II. RIGHT OF SHIPPER. III. EFFICIENCY OF METHOD. IV. LIABILITY FOR DAMAGE. CROSS-REFERENCE. See Refrigeration. I. JURISDICTION OF COMMISSION. (a) Shippers, being entitled to pre- cool upon a reasonable charge, the Com- mission has authority to determine that reasonable charge and require carriers to file tariffs establishing it. In Re Reg- ulations and Practices With Regard to Precooling and Preicing, 23 I. C. C. 267. 268, 271. II. RIGHT OF SHIPPER. See Refrigeration, §3 (a), (b), (d). (a) Carriers involved herein, comply- ing with an order of the Commission in Arlington Heights Fruit Exchange v. So, Pac. Co., 20 I. C. C. 106, filed tariffs es- tablishing the rate of $7.50 per car for precooling oranges shipped from points in southern California to the east, and immediately thereafter filed other tariffs canceling these tariffs and withdrawing the privilege of precooling altogether. Upon protests from interested shippers the Commission suspended the tariffs can- celing the precooling privilege. HELD, that shippers have the right to precool; that $7.50 per car is a reasonable charge to be made by the carriers for their serv- ice in that connection; that the tariffs withdrawing this charge are unlawful; and that the present tariffs or their equivalent, granting this privilege, should be continued in effect. In Re Regulations and Practices with Regard to Precooling and Preicing, 23 L C. C. 267, 271. (b) A carrier may decline to use an equipment, needed for precooling, fur- nished by the shippers, but it cannot re- fuse to furnish proper equipment upon fair terms. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 118. (c) A carrier may insist upon fur- nishing all equipment needed for move- ment of precooled shipments and might decline to use equipment furnished by shippers. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 118. (d) A shipper is not obliged to sub- mit fruit to the hazard of a system of precooling by the carrier which the car- rier declines to guarantee, but a shipper PRECOOLING, II (e)— III (b) 533 has the right himself to r^ecool and pre- ice his shipment. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 119, 120. (e) Precooling is of two kinds: that furnished by the carriers and that which is furnished by the shippers. That fur- nished by the shippers is performed im- mediately after the fruit is picked; that furnished by the carriers can only be done after the cars are loaded and hauled to the precooling stations at San Ber- nardino or at Colton, when whole train loads and carloads are precooled at once, whereas the shippers precool each box separately. After being precooled by the carriers the shipments must be reiced before reaching destination, which does not appear to be the case when pre- cooled by the shippers. HELD, that the precooling system of the shippers is su- perior to that used by the carriers and that the shippers have a right to precool and preice their shipments. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 120. (f) The car used for the shipment of oranges and lemons from California is exactly the same whether the move- ment is under ventilation or refrigera- tion, or is precooled and preiced. The use of this special car is taken account of in the rate. Carriers are not, there- fore, in case of shipments precooled by the shipper, entitled to additional com- pensation by reason of the fact that a car of this type is necessary and fur- nished. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 120. (g) The public is not required to make good a carrier's blunders in erect- ing facilities. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 122. (h) Discrimination, it seems, will not result in favor of the larger shipper from allowing shippers to precool their own shipments. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 121. III. EFFICIENCY OF METHOD. See Minimums, §7 (f). (a) Precooled shipments, without ad- ditional compensation, are more desirable traffic than either the ventilated or re- frigerated movement. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 121. (b) The system of refrigeration known as precooling is essentially differ- ent from the standard form of refrigera- tion. In actual practice it takes two forms. Precooling by the shipper and precooling by the railroad. In precool- ing by the shipper the basic idea is to bring the fruit under the influence of a low temperature at the earliest possible moment. The oranges are brought from the tree to the packing house, packed in a box, which is immediately deposited in a cold room. At the end of twenty- four to forty-eight hours all parts of the fruit and all parts of the box have been reduced to a uniform temperature of from 33 degrees to 35 degrees F. The box remains in the cold room until it is loaded. The box is taken directly to the car and packed solid and not with air spaces between, as in case of ordinary refrigeration or ventilation. The bunk- ers of the car are filled with large blocks of ice, especially intended for that pur- pose, and the bunkers and vents sealed up so as to make the car as nearly air- tight as possible. This is all done by the shipper, and the car is then delivered to the railroad with instructions to trans- port to destination without reicing and without breaking the seal. By this method an additional tier of boxes can be loaded, thereby increasing the paying load of the car one-sixth. Under this system the fruit is in cold storage from the beginning and can be held without danger, and thereby minimizes the effect of car shortage. The cost of precooling and preicing a car in this manner, in- cluding interest on the investment and depreciation of the plant on a fair aver- age, is about $32.50. There is an expense in repairing the ice bunkers of about $5.00 per car per trip. The average weight of the ice- during the entire jour- ney is about 5,000 lbs. The extra tier which can be loaded when precooled by the shipper adds a revenue in the case of the Santa Fe lines of $53, and in case of the S. P. Co., $55 on a haul from California points to Chicago, while the actual additional cost of moving the car does not exceed half these sums. HELD, that the shippers who have devised and perfected this system of precooling should not be compelled to pay for the privilege of using it more than the fair cost to the carrier of providing the ad- ditional facilities which are not included in the ventilated rate, with a fair profit, and that the precooling charge of $30.00 per car charged by defendants when car is precooled by the shipper is unreason- able to the amount that it exceeds $7.50 534 PRECOOLING, III (c)— PROCEDURE BEFORE COMMISSION, §1 (aa) per car. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 121. (c) Complainants attacked the mini- mum weight on peaches from Georgia to markets east of the Mississippi and north of the Ohio and Potomac rivers in refrigerator cars, of 22,500 lbs., which compels complainants to load peach crates five tiers high. HELD, that the ordinary refrigeration metnod will not perfectly cool the two top tiers, because Georgia peaches are picked and packed in very hot weather and moved through hot regions of the country; that the prop- er method of shipping these peaches would be to precool the crates before loading into the car; that comparisons cannot be made with the transportation of California peaches (these peaches be- ing cooled by exposure to the cool night air or in precooling stations, and subject to a cool mountain haul shortly after moving), nor in the northern states, where there is a short haul. Complaint dismissed. Georgia Fruit Exchange v. S. Ry. Co., 20 I. C. C. 623. (d) Fruit may be safely transported under the precooling method. Arling- ton Heights Fruit Exchange v. S P. Co., 20 I. C. C. 106, 113; Georgia Fruit Ex- change V. S. Ry. Co., 20 I. C. C 623, 626. IV. LIABILITY FOR DAMAGE. (a) A carrier's entire duty is dis- charged when it places the precooled car on its train and hauls it to destination. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 116. (b) When shipments are precooled by the shipper at the packing houses the car is delivered sealed to the carrier with instructions not to open nor reice until destination is reached. HELD, that the carrier under such circumstances as- sumes no liability for defective refrig- eration, and if it handles the precooled car with due diligence it is not liable for any damage due to deterioration of the shipment. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 117. PREPAY STATIONS. See Demurrage, §5 (c), §9 (d), §11 (fg). PRESUMPTIONS. See Evidence, IV. PROCEDURE BEFORE COM- MISSION. I. PRACTICE. §1. In general. II. COMPLAINT. §2. Form and issues tendered. §3. Notice of complaint. §4. Amendment. §5. Hearing. §6. Briefs. §7. Oral argument. §8. Rehearing. §9. Costs, attorneys' fees, etc. III. MOTIONS. §10. Dismissing complaint. (1) In general. (2) Adjustment since fil- ing. IV. ORDERS OF COMMISSION. §11. Modification, validity and ef- fect. §12. Review. V. PARTIES. §13. Necessary and proper par- ties. VI. SET-OFF. §14. In general. VII. EFFECT OF EVIDENCE. §15. Equities of cause. §16. Judicial notice. §17. Res judicata. §18. Requesting information of carrier. §19. Tests of revenue. CROSS REFERENCES. See Advanced Rates, VI; Allowances, I; Claims; Commerce Court, II; Crimes, IX; Discrimination, V; In- terstate Commerce Commission, III; Long and Sliort Hauls, V; Re- consignment, V; Reparation, V. I. PRACTICE. §1. In General. See Absorption of Charges, §4 (a); Cars and Car Supply, §6 (a); Elec- tric Lines, II (a). (a) Liberal rules of pleading are ap- plied by the Commission. Stonega Coke & Coal Co. V. L. & N. R. R. Co., 23 I. C. C. 17, 25. (aa) Where a complaint was filed after the filing of a fourth section ap- plication involving the same rates, whether a hearing can properly be had upon the complaint before the applica- tion is disposed of is of no practical im- portance. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 I. C. C. 115, 117. PROCEDURE BEFORE COMIMISSION, §1 (b)— §2 (d) 535 (b) The Commission has endeavored to simplify its practice and procedure, without permitting technical matters to interfere with substantial results. Cin- cinnati & Columbus Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 489. (bb) The practice rules of the Com- mission, while not overlooking the def- inite requirements of the law in respect to filing complaints, were intended to re- lieve complainants, so far as possible, from observance of the technical rules of pleading, in order that shippers un- skilled in such matters might bring their troubles to the Commission in their own proper persons. Memphis Freight Bu- reau V. St. L. S. W. Ry. Co., 18 I. C. C. 67, 69. (c) It is improper practice for a car- rier to decline to make application for the informal adjustment of an unreason- able charge, thereby compelling the ship- per to file formal complaint, and then, by answer and stipulation, admit the allega- tions of the complaint and agree to sub- mission of the case on the pleadings. Davenport Pearl Button Co. v. C. B. & Q. R. R. Co., 17 I. C. C. 193, 194. (d) The Commission is given a rea- sonable discretion in entertaining and refusing to entertain complaints that are presented to it. Even if it had the power to entertain a complaint seeking general damages, that discretion is rea- sonably exercised when it declines in the general public interest and in deference to the other important work before it to deal with matters about which it can know but little, and which thei courts, where such matters properly belong, can deal with much more efficiently. Joynes V. Penn. R. R. Co., 17 I. C. C. 361, 367. (e) However strongly the Commis- sion might feel inclined to relieve condi- tions complained of, its actions must be within the provisions of law and with due and proper regard for the rights of every affected interest. Commercial Club of Hattiesburg v. Alabama Great Southern R. R. Co., 16 I. C. C. 534, 545. (f) The conclusion of the provision, "any reasonable ground," leaves the ques- tion whether investigation shall result to the legal discretion of the Commis- sion. Taylor v. M. P. Ry. Co., 15 I C. C. 165. (g) The Commission is an administra- tive body, created to effect substantial justice in the matters under its control, and is not bound or limited by the strict rules of pleading. Nollenberger v. M. P. Ry. Co., 15 I. C. C. 595, 598. (h) It is not the proper course of procedure for complainants to file com- plaint and proceed no further. Some obligation rests upon a complainant who seeks reparation to prosecute his case witl> due diligence. Advance Thresher Co. V. Orange & N. W. R. R. Co., 15 I. C. C. 599, 600. II. COMPLAINT. See Long and Short Hauls, §11. §2. Form and Issues Tendered. (a) Complaint filed in Corporation Commission v. N. & W. Ry. Co., 19 I. C. C. 303, examined, and, HELD, to be suf- ficient to bring in issue the local rates of the N. & W. from Roanoke and Lynchburg to Winston-Salem and Dur- ham. N. & W. Ry. Co. V. U. S., 195 Fed. 953, 958. (aa) The joint rate under which this shipment moved not having been at- tacked, and the proper parties defendant not having been joined, the complaint must be dismissed. Reno Grocery Co. v. S. P. Co., 23 1. C. C. 400. (b) Commission refrains from pass- ing upon an import rate which was not attacked in the complaint, though re- ferred to at hearing and argument. Case held open to permit readjustment or fil- ing of amended petition. Thropp v. P. R. R. Co., 23 L C. C. 497, 499. (bb) In dealing with certain class rates applicable to specific kinds of a commodity from a particular locality, the Commission cannot determine what rates are reasonable for the transportation of other commodities from the same point, or of the same commodity from other points, but such questions must be de- termined in other proceedings. Milbum Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 101. (c) Where there is no issue tendered in the complaint or any evidence sub- mitted in regard to a violation of the long-and-short-haul clause, such matter cannot be considered in a petition attack- ing reasonableness, relatively and per se, of the rates. Chamber of Commerce of Augusta V. S. Ry. Co., 22 1. C. C. 233, 238. (d) Where no issue under section 4 is raised by the petition and the matter is not the subject of inquiry on the hear- 536 PROCEDURE BEFORE COMMISSION, §2 (e)— (h) ing, the question will not be determined. Chamber of Commerce of Augusta, Ga., V. Southern Ry. Co., 22 I. C. C. 233, 238. (e) With only one carrier as a party defendant, the issue cannot be broadened to embrace matters which were brought into existence by other carriers, and for which defendant alone is in no sense re- sponsible. Chattanooga Feed Co. v. A. G. S. R. R. Co., 22 I. C. C. 480, 485. (f) The fact that the issue raised by a petition is not as broad as it might have been if other carriers had been made parties can furnish no warrant for a refusal to pass upon matters clearly embraced within it. Chattanooga Feed Co, V. A. G. S. R. R. Co., 22 I. C. C. 480, 485. (g) Complainant filed a petition con- taining the following averments: "This petition is presented upon behalf of the complainants and such other persons, firms or corporations as may hereafter by proper petition become parties in in- terest to this suit, and the complainants reserve the right to show damages and to demand reparation at any time there- after, to which any of them, or interve- ners in this action may be entitled under the law." The prayer contained no alle- gation whatever to the subject of repara- tion or damages. Subsequently, supple- mental petitions were filed which fur- ther stated that complainants had shipped large quantities of ice over the lines of the defendant, for which an un- reasonable charge had been made. The points of origin were definitely named, the points of destination stated to be upon the lines of the defendant in va- rious states, and that the freight had been paid by the complainants. HELD, the averment quoted from the original complaints cannot be construed as the filing of a claim for reparation. It is true that the complainants stated they had shipped ice and had been compelled to pay excessive rates for that service, but the reference to the subject of rep- aration contained no statement whatever that reparation would be demanded nor was there any prayer in the complaints that reparation be awarded. However, the supplemental petition, when taken in connection with the original petition, is a sufficient filing of a claim for reparation within the sixteenth section of the Act, which will interrupt the running of the two-year period. It contains a clear statement that the complainants have made shipments of ice over the lines of the defendants; that the defendants have charged and complainants paid an ex- cessive rate and that complainants will seek to recover as reparation the amount of the excessive charges. There is no statement of any definite number of ship- ments, nor of any definite amount claimed, nor is there any statement of the period within which these shipments have been made, but the original peti- tion refers definitely to the rates which are in controversy, setting forth in great detail the points between which the rates apply, the history of the rates themselves and the contention of the complainants as to the reasonableness of these rates. Both the Commission and the defendants were fully advised of exactly what the complainants claimed by way of repara- tion, and to have gone into greater de- tail at that time would have been a work of great expense without profit to any- one. Until the final decision of the Commission establishing the rates was made, neither the defendants nor the complainants could know the amount of reparation to which the complainants were entitled or the points with respect to which reparation would be allowed. To have required the complainants to set forth in detail their claim for damages would simply have been to require them to file a statement of every shipment of a carload of ice during the period cov- ered. The defendants had in their pos- session all this information and have not been in any way prejudiced or inconven- ienced by the fact that detailed state- ments were not sooner filed. Admitting that at some time the complainants should present to the defendants a specifica- tion showing the several shipments upon which claim for damages was based, still that statement stands like a bill of par- ticulars in a suit at law, which may or may not be required, according as the due administration of justice requires. There is a wide distinction between this case involving rates to numerous destina- tions which have been attacked, but is still in effect, and an instance where rep- aration is claimed on account of some one or more specific transactions in the past. A general description which would be entirely adequate in this case to definitely show the extent of the dam- ages claimed would be entirely insuf- ficient for that purpose in the other. Mountain Ice Co. v. D. L. & W. R. R. Co., 21 I. C. C. 45, 47, 48, 49. (h) It is due both to the Commission and to the defendant carrier that a com- PROCEDURE BEFORE COMMISSION, §2 (i)— (q) 537 plaint should state seasonably whether he will claim reparation, and that he should state this with suflacient definite- ness so that both the Commission and the carrier may be advised of the nature of his claim, but every rule of conven- ience and of justice requires that where a large number of existing rates are at- tacked, which are still in effect, a state- ment should be made in general terms that reparation will be claimed when a decision finally reducing the rates is made, so that the matter may be held in abeyance until the main question has been decided and the parties know whether any reparation will be awarded, and if so, upon what basis. Mountain Ice Co. V. D. L. & W. R. R. Co., 21 I. C. C. 45, 49. (i) The reasonableness of rates can- not be considered except under a pro- ceeding which properly puts them in is- sue. Douglas & Co. V. C. R. I. & P. Ry. Co., 21 I. C. C. 97, 102; 21 I. C. C. 541, 545. (J) Upon a complaint alleging undue preference, it was held that the question of the reasonableness per se of rates is automatically imported into a case through the suspension of the tariffs. Douglas & Co. V. C. R. I. & P. Ry. Co., 21 I. C. C. 97, 102. (k) The Commission expressed no opinion as to the reasonableness of any of the rates in controversy where the question present was upon the relation of such rates. In Re Advances in Rates on Locomotives and Tenders, 21 I. C. C. 103, 112. (1) A complaint does not raise the is- sue that rates are discriminatory when it simply contains a general allegation that the rates of the defendant violate sections 1, 2 and 3 of the Act, and there is no attempt to point out in any par- ticular the character of the discrimina- tion, nor the locality against which or in favor of which the discrimination oc- curs, nor any prayer for the correction of any discrimination. United States Leather Co. v. So. Ry. Co., 21 I. C. C. 323, 324. (m) If a question of discrimination in rates is not specifically alleged in the complaint, but is actually tried upon the hearing, the Commission may allow an amendment upon such terms as would properly protect the defendants, but can- not decide that question when raised for the first time in the briefs. The remedy of complainants is to file a separate com- plaint to that specific end. United States Leather Co. v. S. Ry. Co., 21 L C. C. 323, 324. (n) While the Commission is ex- tremely liberal in construing the plead- ings before it, the statute requires that carriers shall be notified of the com- plaint which they are required to answer, and though no particular form is insisted upon, there must be a statement of the thing which is claimed to be wrong, suf- ficiently plain to put the carrier upon its defense. United States Leather Co. V. S. Ry. Co., 21 L C. C. 323, 324. (o) The Commission can take judicial cognizance of and make findings upon only such issues as are clearly raised by the complaint, while fully weighing all of the pertinent facts and testimony ad- duced. Sinclair & Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 490, 494. (p) An examination into the specific provisions of the Act, especially into those of section 13, will make clear to the candid mind that a complaint be- fore the Commission was not intended to be regarded in the same strict and hard light as a complaint in an action at law, but was to be regarded as an appeal to the government against oppressive, un- just and illegal action. A shipper may not dismiss his complaint without con- sent. T\ie fact that he has no interest in the traffic concerned in his complaint does not put him out of court. These and similar provisions indicate that the purpose of Congress in enacting the Act was to establish a body whose function should be to protect the public interest, and not merely regard the technical rights of an individual shipper, and in this view of the law the Act has been administered by the Commission. Ad- vances in Rates — Western Case, 20 I. C. C. 307, 315. (q) Complainant by a complaint filed July 12, 1909, attacked certain lumber rates as unreasonable, which the Com- mission reduced. On April '6, 1911, the same complainant prayed for reparation on shipments of lumber based upon the findings of the Commission in the orig- inal case. HELD, in order to avoid multiplicity of actions and consequent unnecessary labor and expense, and in order that defendants as" well as the Commission might have due notice of the full extent of the complaint, and the ef- fect of an order thereunder, it adopted a 538 PROCEDURE BEFORE COMMISSION, §2 (r)— (x) rule that reparation will not ordinarily be awarded in a formal case attacking a rate as unreasonable or otherwise in violation of law, unless intent to claim reparation is specifically indicated there- in, or in an amendment thereof filed before the submission of the case. It is obvious fairness that complainants be required to dispose of their whole case, and the demands upon the time of the Commission are so many and pressing that unnecessary multiplicity of pro- ceedings cannot be encouraged or even tolerated. Freeman Lumber Co. v. St. L. I. M. & S. Ry. Co., 20 I. C. C. 612, 613. (r) A general allegation that all rates from St. Paul and Chicago to Spokane were unreasonable, could not lay the foundation for an order reducing all the commodity rates, but there must be a specific attack upon each specific rate which would put the defendant upon no- tice of the exact thing complained of. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 170. (s) A complaint against all rates be- tween two points is not sufficient; there must be a specific attack upon specific rates. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 170. (t) The Commission is not disposed to try complaints piecemeal. If a com- plainant desires to secure reparation upon trafllc, in respect of which 4ie also seeks reduction of the rate for the fu- ture, he may reasonably be required to present his whole case at once. The Commission enforces in its investigation only the most elementary rules of pro- cedure, requiring merely that the com- plainant shall set forth concisely an al- leged violation of the Act. It is aimed to avoid technical rules which might im- pede the way to substantial justice, and to determine each case upon the merits alone. Obviously, however, it is in the interest of good administration, that an entire case should be presented to the Commission and to the defendants. Cases are ordinarily assigned for hear- ing at some point convenient to the com- plainant, but each hearing involves at- tendance by a member of the Commis- sion or an examiner, and of the defend- ant's counsel and witnesses at the place assigned. If after an order for the fu- ture is secured, complainant may in- stitute another proceeding for reparation on past shipments, a second hearing be- comes necessary which may involve an expenditure of public funds and a hard- ship upon defendants quite out of propor- tion to the amount sought to be recov- ered. Moreover, it does not follow be- cause the Commission has found a rate unreasonable, and established a lower rate for the future, that the former rate was unreasonable at all times in the past, and, therefore, in such a proceed- ing as this a second and independent in- vestigation would be unavoidable. Ull- raan v. American Express Co., 19 I. C. C. 354, 355. (u) By complaint filed Dec. 6, 1907, and amended May 26, 1908, complainants attacked defendant's rate for transporta- tion of raw furs from St, Paul to New York. No reparation was asked. The Commission reduced the rate. Subse- quently this complaint was filed, asking reparation on shipments which moved prior to the effective date of the Com- mission's order in the original case. HELD, if complainant desired an award of reparation he should have given no- tice to that effect in his original com- plaint, and having failed to do so should now be estopped from claiming damages upon shipments which moved prior to the filing of such complaint. The Commis- sion will, of course, reserve the right to deal as may be deemed just with a claim for reparation disclosing unusual cir- cumstances, where application of the general rule might be unjust or inequi- table, UUman v. American Express Co., 19 L C. C. 354, 355. (v) In a complaint by Minneapolis fiour millers against the rates on flour from Minneapolis to New York, as com- pared with those accorded to Buffalo millers on wheat from Minneapolis to New York milled-in-transit at Buffalo, Chicago millers intervening in the pro- ceeding are not entitled to have raised the question whether Minneapolis by its milling-in-transit privileges has an ad- vantage over Chicago, in laying down flour in Chicago, as compared with the rate at which Chicago millers can lay wheat down, since such question is not germane to the issues raised by the com- plaint. Jennison Co. v. G. N. Ry. Co.. 18 I. C. C. 113, 120. (w) Questions of reasonableness of rate and reparation should be brought in one complaint. Delray Salt Co. v. M. C, R. R. Co., 18 L C. C. 247, 248. (x) A complainant attacking the rate exacted as unreasonable and seeking rep- aration should not multiply the com- PROCEDURE BEFORE COMMISSION, §2 (y)— (hh) 539 plaints filed, but all damages should be heard and determined in one proceed- ing. Delray Salt Co. v. M. C. R. R. Co., 18 I. C. C. 247, 248. (y) Under a complaint which chal- lenged the reasonableness of charges by a carrier for loading, stripping and brac- ing carloads of fruit and vegetables, but which did not challenge the reasonable- ness of the carload or less-than-carload rates, except to claim that the total re- sulting charges were excessive, no find- ing can be made by the Commission as to the reasonableness of the carload or less-than-carload rates. Davies v. L. & N. R. R. Co., 18 I. C. C. 540, 544. (z) Under a petition asking for the reduction of rates from Boston, New York and "eastern ports," a reduction can be ordered only from Boston and New York, the term "eastern ports" be- ing too indefinite to warrant an order with respect to any other than the cities specifically referred to. Kiser Co. v. Central of Georgia Ry. Co., 17 I. C. C. 430, 441. (aa) Greneral designations cannot be accepted as the basis for an order which, to be enforceable under the law, must be specific and definite either in enu- merating particular points or indicat- ing a specifically defined group or terri- tory. Kiser Co. v. C. of Ga. Ry. Co., 17 I. C. C. 430, 442. (bb) In claim for reparation for al- leged unlawful exaction of demurrage charges based upon the construction of a tariff provision and dependent upon a question of fact in each instance, in the absence of specific proof as to each car, the Commission could not make an award. Murphy Bros. v. N. Y. C. & H. R. R. R. Co., 17 I. C. C. 457, 459. (cc) Where the original complaint seeking a reduction of rates makes no claim for reparation and a reduction Is granted, complainants cannot later by a separate proceeding ask for reparation on the shipments involved in the orig- inal complaint on the basis of the newly established rate. West Texas Fuel Co. V. T. & P. Ry. Co., 17 I. C. C. 491, 492. (dd) While complainant may put in issue an entire schedule of rates upon a single commodity to and from all points, in some way the rates to be dealt with must be definitely stated in the complaint. The thing found fault with must definitely appear. Flor- ida Fruit & Vegetable Ass'n v. A. C. U R. R. Co., 17 I. C. C. 552, 554. (ee) The Commission has little doubt that where the defendants are before it upon notice of the matter which will be examined into, where a full hearing is had and a conclusion reached, it may in its sound discretion establish rates to points not referred to by any intend- ed complaint, Florida Fruit & Vege- table Ass'n V. A. C. L. R. R. Co., 17 I. C. C. 552, 556. (eee) Where reparation is awarded for an excessive charge upon marble shipped from Long Island City, N. Y., to Shipman, Va., but the record is not sufficient to enable the Commission to undertake a revision of the classification of marble, nor to enable it to express an intelligent criticism of the new regu- lations suggested, no order will be made governing future rates. Cohen & Co. v. S. Ry. Co., 16 I. C. C. 177, 178. (ff) It is always best, in all proceed- ings before the Commission, for the complainant to state his whole case clearly and fully, and if he claims to have suffered damages, to state them. Morse Produce Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 334 (338). (gg) The Commission can only act upon those rates specifically called to its attention, although it must have in mind the effect upon the revenues of these companies of resulting reductions upon other commodities and at other points. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 389. (hh) Complaints charged that the through rates shown in a certain tariff to various Wisconsin points were unrea- sonable compared with combinations of local rates to the same points. In the lists with respect to each shipment appeared the number of the waybill and the date it was issued, the point from which the commodity was billed, the point of origin, the name of the con- signee, the rate charged, and the amount of the claimed overcharge. The plead- ings and evidence showed that the larger part of the claims included in the schedules was duly presented to the defendants and payment thereof refused. HELD, the complaints and the informa- tion contained in the schedules were sufficient to put defendants on notice and demurrers thereto should be over- 540 PROCEDURE BEFORE COMMISSION, §2 (ii)— (oo) ruled and motions to dismiss denied. Oshkosti Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109, 110. (ii) In a complaint against through rates as being unji.st and discriminatory for exceeding combinations of local rates, lists submitted are open to criti- cism where the items are not grouped as to routes and neither the commodity transported, nor weight thereof, is given, but such objection is not fatal whereby nn agreement reached at the hearing said matters are to be set out in new lists thereafter to be submitted. Osh- kosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109, 111. (jj) Where by agreement of the par- ties further schedules showing dates and other facts with respect to various shipments on which reparation is asked, are to be filed by complainants, the Commission will enter no order until such schedules are presented. Osh- kosh Logging Tool Co. v. C. & N W Ry. Co., 14 I. C. C. 109, 113. (kk) Complaint challenged rates of 51 defendants for the transportation of pe- troleum and its products between points generally in Official Classification terri- tory because of unreasonableness and undue preference; but the record did not indicate which of the 51 defendants the order should run against, even if there were a proper foundation upon which to base it. No showing was made indicating that the present classi- fication of such articles was unduly dis- criminatory, but the Commission was asked to reduce by one sweeping order thousands of rates concerning which no specific complaint had been made and no evidence offered. HELD, that no omnibus complaint of this nature should be dismissed without prejudice, but if any of the alleged specific dis- criminations are in violation of law they should be brought to the atten- tion of the Commission in a proceeding directed against the carrier responsible therefor. National Petroleum Ass'n v. Ann Arbor R. R. Co., 14 I. C. C. 272. (11) Complainant association, com- posed of firms engaged in the petroleum business, filed a complaint against 51 defendant carriers to compel the reduc- tion of oil rates in force throughout Official Classification territory. Said rates, as published, provided that oil in carloads should take 90 per cent of fifth class rates, and in less than carloads third class rates. Complainant submitted only vague evidence and gen- eral comparisons as to the unreasonable- ness of the rates complained of; and where particular shipping points were mentioned as being subjected to unjust rates, no evidence was submitted to s show that the many thousands of other i rates involved in such territory were ■ unreasonable or unjust. Complainant asks for general blanket order reducing rates throughout this territory without specifying the particular localities or particular defendants. HELD, the Com- mission could not on such a general complaint, and on such indefinite evi- dence, reduce by one sweeping order hundreds of thousands of rates, and the complaint should be dismissed with- out prejudice. National Petroleum Ass'n V. Ann Arbor R. R. Co., 14 I. C. C. 272, 282. (mm) Complainant attacked defend- ants' carload rate of 20c per 100 lbs. on petroleum and its products from Chicago, Peoria, 111., and Milwaukee, Wis., to St. Paul, Minneapolis and Du- Juth, Minn. It appeared that complain- ant's members shipped oil only from Ohio territory and on a joint rate to those points in Minnesota of 33l^c, made up of a rate of 13i/^c from Cleve- land to Chicago, and one of 20c from Chicago to Minnesota points. After the filing of the complaint the joint rate was reduced to 30c by defendants. The carriers from Cleveland to Chicago were not made parties defendant. Com- plainant did not pretend to carry oil under the 20c rate attacked, but brought its complaint for the sole purpose of reducing that rate in order that -it might later on compel a reduction of the joint rate on the theory that the joint rate could not exceed the combination of locals. HELD, complain- ant should attack the joint rate directly in order to secure the relief desired, and its complaint should be dismissed without prejudice. National Petroleum Ass'n V. C. M. & St. P. Ry. Co., 14 I. C. C. 284, 286. (nn) Where in a suit for reparation based on former rates, no issue is made by the pleadings to the reasonableness of a present rate, it will not be passed upon by the Commission. Gamble- Robinson Commission Co. v. N. P. Ry. Co., 14 I. C. C. 523, 524. (oo) Where an excessive charge of the same amount has been made on PROCEDURE BEFORE COMMISSION, §2 (pp)— §3 (d) 541 different shipments "of lumber, the same parties and the same shipping points being involved, the cases should be com- bined and presented to the Commission in one proceeding. Hayden & West- cott Lumber Co. v. G. & S. I. R. R. C, 14 I. C. C. 540. (pp) Where the reasonableness of a rate on grapes in carloads from Pewee Valley, Ky., to Pittsburg, Pa., over the line of defendant and connecting car- riers is attacked; where the combina- tions of rates between such points is not shown on any legal tariff, and where complainant does not include the connecting carriers as parties de- fendant, the Commission will render no decision but will give complainant leave to amend its complaint for a later hearing. Crutchfield & Woolfolk v. L. & N. R. R. Co., 14 I. C. C. 558, 560. (qq) The Commission will not modify its previous order upon petition so as to extend the relief granted in its order "from points intermediate between Memphis and New Orleans," because no evidence is submitted and the Com- mission is not advised as to what points are referred to or what would be a reasonable rate from such points to New Orleans. Thompson Lumber Co. V. I. C. R. R. Co., 14 I. C. C. 566, 566. (rr) Where a point to which rates are sought to he reduced as excessive is not situated on defendants' lines, the complaint, unless amended, must b« dis- missed as to that point. Baker v. Cum- berland Valley R. R. Co., 14 I. C. C. 568, 570. (ss) On carloads of sash and doors from Chicago to Williamson, W. Va., a rate of 33c was exacted. The rate to Roanoke and Norfolk, Va., was 27c. Williamson was intermediate to Chicago and Roanoke, the distance from Chicago to Williamson being 528 miles, to Roan- oke 700 miles, and to Norfolk 908 miles. Competitive conditions existed at Roan- oke which did not exist at Williamson. If the rates on sash and doors to Wil- liamson were reduced, every other class rate would be open to the same objection. Complainant's evidence was so meager as not to warrant a general readjustment of the rates to the terri- tory in question. HELD, the complaint should be dismissed without prejudice and with no approval of the rates at- tacked precluding further inquiry by the Commission. Chicago Sash and Door Ass'n v. N. & W. Ry. Co., 14 I. C. C. 594, 595. (tt) Complainant stated that it only prayed for reparation and did not ask the establishment of a rate for the fu- ture, but cases cannot be disposed of with respect to a single shipper or a single transaction. Acme Cement Plaster Co. V. U. P. R. R. Co., Unrep. Op. 41. §3. Notice of Complaint. (a) Section 13 of the Act requiring the Commission, when a complaint stat- ing the facts is filed, to forward the same "to such common carrier, who shall be called upon to satisfy the com- plaint or to answer the same in writing within a reasonable time to be specified by the Commission," requires that notice should be given to the party immedi- ately interested and not to those re- motely concerned. L. & N. R. R. Co. v. I. C. C, 184 Fed. 118, 127. (aa) Section 13 requires that any car- rier complained of shall be supplied by the Commission with a copy of the charges and be given an opportunity to answer. Fels & Co. v. P. R. R. Co., 23 I. C. C. 483, 486. • (b) Full publicity attends every step of all proceedings before the Commis- sion and it must be assumed that par- ties interested will take notice of what is going on. Lum v. G. N. Ry. Co., 21 I. C. C. 558, 561. (c) The decision in the present case was based on a decision as to hard wood lumber rates made in a former case. Some of the defendants in the pres- ent case were not defendants in the former case, but were duly notified of the hearing in that cas€ and full oppor- tunity was given them to make a show- ing why reparation should not be award- ed against them, but none of them ap- peared. HELD, they had had their day and could not be heard to say that reparation based on the decision of the former case could not be awarded against them in the present case. Kindelon v. S. P. Co., 17 I. C. C. 251, 255. (d) Proceedings before Commission given wide publicity, and any interested carriers are given opportunity to de- fend the rate or provision in a classi- fication, either by intervention or by request of original defendant that such carriers may be made defendants. Ben- 542 PROCEDURE BEFORE COMMISSION, §4 (a)— §5 (h) nett V. M. St. P. & S. Ste. M. Ry. Co., 15 I. C. C. 301, 303. §4. Amendment. (a) Where an amended petition ask- ing for reparation is filed the statute of limitation runs from the date of amend- ment. Virginia-Carolina Chemical Co. v. St. L. I. M. & S. Ry. Co., 18 1. C. C. 1, 2; Same v. C. R. I. & P. Ry. Co., 18 I. C. C. 3, 4; Same v. St. L. & S. F. R. R. Co., 18 I. C. C. 5, 6. (b) Where a complaint seeking repa- ration for certain claims is filed be- fore the expiration of the limitation period applicable to said claims, and upon motion of complainant is dismissed without prejudice, the Commission may in its discretion reinstate said original petition by a nunc pro tunc order as of date of the filing of the complaint in the first place, but it cannot reinstate such a complaint when the same has been amended to include claims not in- cluded in the original complaint, and which are at the time of the motion for reinstatement barred by the statute of limitations. The Commission cannot sanction a practice permitting the re- vival of claims barred by the statute, by subsequently attaching them to» other claims, presented within the prescribed period, despite any promises on the part of defendant carriers that they will not take advantage of the statute of limitations. The Commission has no jurisdiction to deal with complaints for reparation in any way unless filed with or presented to it within the period spec- ified by the statute. It is not vested with the powers of a court of equity to relieve from hardships resulting from improvident arrangements or agreements between the parties. Werner Sawmill Co. V. I. C. R R. Co., 17 I. C. C. 388, 389-391. (c) Where a claim of reparation is not filed with the original complaint but is filed at a later date by amend- ment, application of the statute of limi- tations is to be determined as of the date of filing such amendment. East St. Louis Walnut Co. v. St. L. S. W. Ry. Co. of Tex., 17 I. C. C. 582, 584. (d) Where under a complaint asking merely for reparation the facts are stipulated by the parties, the complaint cannot be amended at the hearing so as to include an application for through routes and joint rates. La Salle and Bu- reau County Railro'ad Co. v. C. &, N. W. R. R. Co., 13 I. C. C. 610, 613. §5. Hearing. (a) The Commission is not invested with authority to find any rate unrea- sonable except after full hearing. Doug- JH las & Co. V. C. R. I. & P. Ry. Co., 21 I I. C. C. 541, 543. (b) Rates established by carriers can- not be condemned except upon full hear- ing. Anadarko Cotton Oil Co. v. A. T. & S. F. Ry. Co., 20 I. C. C. 43, 50. (c) The Commission will suspend the operation of its orders reducing rates on Pullman berths to permit other carriers than those defendants in the original case to present additional evi- dence, if convinced that such evidence would show the pertinent circumstances and conditions to be materially different from those indicated by the evidence which was considered when the orders were made. Loftus v. Pullman Co., 19 I. C. C. 102, 104.. (d) An order condemning an existing rate, awarding reparation, and estab- lishing a rate for the future cannot be made on mere complaint, without appearance or evidence. Quammen & Austad Lumber Co. v. C. M. & St. P. Ry. Co., 19 I. C. C. 110, 111. (e) The Commission cannot be ex- pected to supervise the conduct of cases before it to the extent of remind- ing the parties of the necessity of fol- lowing up their complaint, and may fairly dismiss a complaint for lack of diligent prosecution. Ocheltree Grain Co. V. T. & P. Ry. Co., 18 I. C: C. 412, 413. (f) Carriers notified of hearing and failing to appear have had their day in court and cannot now be heard to say that no order can be made against them to share in the reparation awarded. Kindelon v. S. P. Co., 17 I. C. C. 251, 255. (g) Complainant, discovering at the close of the hearing that he did not have the expense bills or any other memoranda showing the shipments in question or the moneys paid, moved to dismiss the case. Complaint dismissed. Roper Lumber-Cedar Co. v. C. & N. W. Ry. Co., 16 I. C. C. 397. (h) On a shipment of household goods from El Reno, Okla., to Cabin PROCEDURE BEFORE COMMISSION, §5 (i)— §7 (b) 543 Creek, Ark., complaint against rate charged dismissed for failure of com- plainant to appear at hearing. Guthrie V. C. R. I. & P. Ry. Co., 16 I. C. C i25. (i) This being primarily an appli- cation for reparation. Commission could make no order awarding damages in the absence of proof on the part of complainant of the extent of his injury, raylor v. M. P. Ry. Co., 15 I. C. C.^ 165. (j) While the Act does not presume to cast the burden of proof upon the complainant to establish the unreason- ibleness of a rate complained of, as would be the case in a court of law, aevertheless a complainant is not re- lieved of all responsibility as to his case upon the mere filing of a complaint, md where after due notification he ap- pears neither in person nor by counsel at the hearing and his application is [)rimarily one for reparation, his com- plaint must be dismissed. Taylor v. M. P. Ry. Co., 15 I. C. C. 165. (k) No question being involved ex- cept one of reparation and the com- plainant not appearing and submitting 10 evidence, the complaint for alleged nisrouting is dismissed. Wakita Coal & Lumber Co. v. A. T. & S. F. Ry. Co., L5 I. C. C. 533. (1) Complaint attacking the double 'ate assessed upon typewriters when lot properly boxed is dismissed upon ippearance of defendant, which justified said rule, and upon complainant's failure :o appear and prosecute. Maxwell v. A.dams Express Co., 15 I. C. C. 609. (m) Complaint attacking the rate on Deans in carloads from Lansing, Mich., :o Cedar Rapids, la., is dismissed, the complainant not appearing and no evi- ience being presented as to the al- leged unreasonableness of the rate ex- icted. Isbell-Brown Co. v. M. C. R. R. Co., 15 L C. C. 616, 617. (n) Where a case is set for hearing md the parties notified by mail and :elegraph, and complainant fails to ap- pear by reason of his absence in another state and failure to receive notice until 1 few days before the date set, his com- plaint will not be dismissed for want 3f prosecution and opportunity will be given him to present, in the form of a svritten communication, evidence bear- ing upon the unreasonableness of the rate in question. William Patten v. Wisconsin Central Ry. Co., 14 L C. C. 189, 189. (o) The question of the admissibility of depositions taken by complainant with respect to rates allowed another shipper by defendants, becomes imma- terial where the defendants admit the fact sought to be established by such depositions. Forster Brothers Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. 232, 234. §6. Briefs. (a) If briefs are not filed within the time fixed by the Commission, no failure to accord the defendants a full hearing, as required by the fifteenth section, results from disposing of the case be- fore briefs are received. Ullman v. Adams Express Co., 14 I. C. C. 585. (b) Under the order of the Commis- sion at the close of testimony complain- ant had until June 11 to file its brief and defendants until June 21. Com- plainant filed its brief June 13 and con- sented that defendants might have ad- ditional time. HELD, complainant had no authority to extend the time for filing defendants' briet, and such brief not being filed at the time ordered by the Commission, the case was properly decided without receiving defendants' briefs. Ullman v. Adams Express Co., 14 I. C. C. 585, 586. (c) Cases before the Commission are not like private lawsuits; parties do not stand like litigants before courts, and the Commission cannot upon the agreement of parties grant applications for continuances and extensions of time to accommodate parties and their counsel. Ullman v. Adams Express Co., 14 1. C. C. 585, 586. §7. Oral Argument. (a) Under ordinary circumstances oral argument will be permitted in pro- ceedings before the Commission in which an order reducing a rate or changing a regulation or practice is prayed for, but requests for such argu- ment should be made not later than at the close of the taking of the testi- mony. Ullman v. Adams Express Co., 14 I. C. C. 585, 58«. (b) Although it is probable the Com- mission may, in its discretion, require the submission of a case upon the testi- mony taken by a single Commissioner, 544 PROCEDURE BEFORE COMMISSION, §8 (a)— §10 (2) (a) or an examiner, and upon written briefs, the application of a party to be heard orally will not be refused except under peculiar and unusual circumstances, but such application for oral argument must be made when the testimony is con- cluded and not after the expiration of the time for filing briefs. Ullman v. Adams Express Co., 14 I. C. C. 585, 586. §8. Rehearing. See Allowances, §3 (b). (a) When full opportunity for hear- ing has been accorded, carriers must show as ground for a rehearing that the evidence which they now offer either could not or ought not to have been introduced upon the first hearing, and also that this evidence, if introduced, would probably lead to a reversal of the previous conclusion. It is no hardship to require carriers in the trial of their cases before the Commission to observe to a very moderate degree the same rules which would obtain in a trial at law. Whenever the Commission is con- vinced that its order works substantial injustice it will unhesitatingly set aside that order, but cannot continually retry cases upon the mere statement of the carrier that it desires to introduce some further testimony and believes that the decision of the Commission is wrong. Whiteland Canning Co. v. P. C. C. & St. L. Ry. Co., 23 I. C. C. 92, 94. (aa) The fact that a carrier is indi- rectly interested in the result and has no notice of the pendency of proceed- ings in which an order was made ordi- narily is no valid ground for a rehearing. Whiteland Canning Co. v. P. C. C. & St. L. Ry. Co., 23 1. C. C. 92, 93. (b) The original complaint being con- fined at the hearing to the question whether the Moundsville, W. Va., dis- trict was unduly discriminated against in the rates on coal to various points as compared with the rates from the Ohio district west of Wheeling, and the evidence being confined to that issue, a petition for rehearing will not be granted to determine whether unjust discrimination exists between shippers in the Moundsville district, or whether the rates from the Moundsville district were unreasonable per se. Hitchman Coal & Coke Co. v. B. & O. R. R. Co., 17 I. C. C. 473, 474. - (c) Where, upon a motion for the reopening of a case, -complainant's brief presents no questions of law or fact no fully considered by the Commission i] its previous disposition of the complaini and the motion rests entirely upon th contention that the conclusions of \si^ of the Commission leading it to dismis the complaint were erroneous, the mc tion will be denied. Hussey v, C. R. 1 & P. Ry. Co., 14 I. C. C. 215, 215. §9. Costs, Attorneys' Fees, Etc. See Attorneys' Fees. (a) The Commission does not asses costs; nor does it allow attorney's fees Washer Grain Co. v. M. P. Ry. Co., 1 I. C. C. 147, 154. III. MOTIONS. §10. Dismissing Cormplalnt. §10. (1) In General. (a) The Spokane case cannot be dii continued until matters in issue hav been finally disposed of. City of Sp( kane v. N. P. Ry. Co., 23 I. C. C. 45^ 455. (b) The Commission must deal wit the question from the standpoint c the lawful tariff rates. The Act pn hibits the dismissal of any complair because it is not shown that the con plainant was damaged. Indianapoli Freight Bureau v. P. R. R. Co., 15 I. ( C. 567, 571. (c) Complainant did not appear £ hearing; dismissed for want of proseci tion. Weis Mfg. Co. v. L. S. & M. S. R: Co., Unrep. Op. 142; Arrow Lumbe & Shingle Co. v. M. St. P. & S. Ste. 'h Ry. Co., Unrep. Op. 145. §10. (2) Adjustment Since Filing. (a) The Commission in the origins proceeding in this matter, 19 I. C. ( 162, held that the class and commodit rates in effect from eastern defined te ritories to Spokane and Spokane ten tory were unreasonable, and prescribe certain rates. The class rates name were established, but the commodit rates were postponed, to determine the: effect upon the revenues of the carrier Before the result of this investigatio was known the fourth section wa amended and the city of Spokane coi tended it was entitled to more favo able rates than originally prescribe by the Commission. A hearing wa had and as a result a fourth sectio order was issued. 21 I, C. C 40i PROCEDURE BEFORE COMMISSION, §10 (2) (b)— (f) 54f An appeal was taken which reached the Supreme Court of the United States and that court, after once hearing argu- ment, reassigned the cases for argu- ment in October, 1912. The Commerce Court had restrained the order of the Commission and when it was evident that a considerable time must elapse before the complaining communities could get relief, the Commission was pe- titioned to take immediate steps to secure some relief from the present unreasonable rates. The Commission set the case down for further consideration on May 8, 1912. At this hearing the defendant carriers presented a sched- ule of carload commodity rates from eastern defined territories to Spokane and Spokane territory. The rates named by this schedule were on the average some 4 per cent higher than those found reasonable by the Commission from the Missouri River, 7 per cent from Chicago, 10 per cent from Detroit and Pittsburgh, while from the Atlantic seaboard they were practically the same. The schedule of the Commission had named both carload and less-than-car- load commodity rates, but the schedule of the carriers embraced no less-than- carload rates. It was stated by repre- sentatives of the defendant carriers and by the attorney of the city of Spokane that an agreement had been reached whereby this schedule was to be forth- with established by the carriers and this proceeding discontinued by the complain- ant. The approval of the Commission to this agreement was requested. Upon this proposition the Commission re- marks: First. The Spokane case can- not be discontinued. Other parties in- volving other communities have inter- vened and are parties to that proceed- ing. After the time and effort expend- ed in perfecting that record the Commis- sion would not feel warranted in allow- ing the proceeding to be discontinued until the matters in issue had been finally disposed of. Second. The rea- sonableness of the proposed schedule has not been considered by the Com- mission and no opinion whatever is ex- pressed thereon. Third. No opinion is expressed whether less-than-carload commodity rates should be finally pre- scribed. Fourth. The Commission ad- heres to the position which it has taken under the fourth section and will feel entirely free to dispose of this whole question as may seem just when it is determined by the Supreme Court what action can be taken under that section. If the carriers understanding the po- sition of the Commission to be as above stated see fit to make the proposed rates effective by June 1 next, the Commission will take no further action until the final decision of the court upon the fourth section proceeding. If the carriers do not on or before May 25, 1912, notify the Commission of their intention to establish this schedule the matter will be at once otherwise pro- ceeded with as may seem just and proper in the premises. City of Spo- kane v. N. P. Ry. Co., 23 I. C. C. 454. (b) The cause of complaint having been removed since these cases were submitted the complaints are dismissed without prejudice. Gay Coal & Coke Co. V. C. & O. Ry. Co., 23 I. C. C. 471. (c) Where defendants agree with complainant to establish rates on build- ing and roofing paper from Erie, Pa., to various points in Central Freight Association territory not to exceed 83 1-3 per cent of the 6th class rates, and complainant expresses its willing- ness to rely on the promises of defend- ants to establish such rates, complain- ant's motion to dismiss its complaint demanding such rates will be granted. Watson Co. v. L. S. & M. S. Ry. Co., 16 I. C. C. 124, 125. (d) Where on a shipment of paper pails from Chicago to San Francisco complainant challenges the reasonable- ness of a carload minimum of 20,000 pounds and later by formal pleadings admits the reasonableness of such mini- mum, the complaint will be dismissed. Zellerbach Paper Co. ,v. A. T. & S. F. Ry. Co., 16 I. C. C. 128. (e) Where upon a complaint asking a reduction of rates on various com- modities from Audianapolis to various points in the southern states, it appears that since the filing of the complaint the defendant carriers involved have substantially complied with the adjust- ment demanded, complainant's nntion to dismiss will be granted. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 142, 143. (f) Complaint demanding the estab- lishment of joint rates on masurite from Sharon, Pa., to Wilcoe, W. Va., is. dis- missed, the joint rates being already in effect. Masurite Explosive Co. v. N. & W. Ry. Co., 16 I. C. C. 530. 546 PROCEDURE BEFORE COMMISSION, §10 (2) (g)— (q) (g) The complaint asking for rea- sonable rates on bullion and jewelers' sweepings from points in Minnesota to points in Rhode Island is dismissed, defendants having granted the rates de- manded. Rentz Brothers v. C. B. & Q. R. R. Co., 15 I. C. C. 7. (h) Complaint attacking rates on fertilizer in carloads from Montgomery, Ala., to stations on the Mobile, Jackson & Kansas City R. R. in Mississippi is dismissed, an agreement having been reached by the parties under which de- fendant was to reduce the rates to certain of the destinations in question. Montgomery Freight Bureau v. W. Ry. of Ala., 15 I. C. C. 199. (i) Defendant carriers and complain- ants in 113 cases involving the causes and facts covered in Nicola, Stone & Myers Company v. Louisville & Nash- ville Railroad Company et al., 14 I. C. C. 199, having entered into a stipulation by which defendants are to pay an agreed sum as reparation and it ap- pearing that none of the provisions of said stipulation in so far as they relate to matters within the jurisdiction of the Commission are inconsistent with any provision of the Act, said stipulation is approved and defendants authorized to pay to complainants the agreed sum in satisfaction of such complaints. Joice & Co. V. I. C. R. R. Co., 15 I. C. C. 239, 243. (j) Complaint attacking rates on wheat from Oklahoma points to Kansas City is dismissed, complainant having secured prior to the hearing the relief sought therein. Southern Kansas Mill- ers' Commercial Club v. A. T. & S. F. Ry. Co., 15 I. C. C. 604. (k) Complaint attacking the rates on grain and grain products from Kan- sas points to Memphis and Little Rock is dismissed upon complainant's motion and representation that actual experi- ence under the rates attacked showed them to be reasonable. Kansas Millers' Commercial Club v. C. R. I. & P. Ry. Co., 15 I. C. C. 605. (1) Complaint attacking the rates on grain and grain products from Kansas points to Oklahoma points, especially those on corn and wheat, between points within Oklahoma, is dismissed upon the motion of complainant and its repre- sentation that actual experience under the rates attacked has proved them not to prejudicial and that necessary relief has already been received. Kansas Millers' Commercial Club v. A. T. & S. F. Ry. Co., 15 I. C. C. 607. (m) Where after a hearing a general outline of rates is agreed upon between complainant and defendant, the com- plaint will, at the request of the com- plainant, be dismissed without prejudice. Oklahoma v. A. T. & S. F. Ry. Co., 14 1. C. C. 147, 149. (n) Complaint having been filed ask- ing that defendant be ordered to re-es- tablish a station at Fanshawe, Okla., and the parties since the hearing hav- ing reached an agreement for stopping trains at said point satisfactory to the public, the complaint is dismissed with- out prejudice. Lewis v. C. R. I. & P. Ry. Co., 13 I. C. C. 138. (o) Complaint dismissed, defendants having withdrawn the rate complained of and re-established the rate previously in force. Bunch Co. v. C. R. I. & P. Ry. Co., 13 I. C. C. 377. (p) On lumber from Boardman, N. C, to Pottsville, Pa., and Schuylkill Haven, Pa., a charge of 25c was exacted. At the time shipments moved a local rate of 13c was in effect from Board- man to Richmond and lie from Rich- mond to Pottsville and Schuylkill Haven, and a local rate from Boardman to Nor- folk of 13c, and from Norfolk to Potts- ville and Schuylkill Haven of 13c. It appeared that it was the uniform rule to extend the same rates between North Carolina and Pennsylvania points wheth- er the shipment moved via Norfolk or via Richmond; that the lie local from Richmond to the Pennsylvania points in question in effect at the time of the shipment was a mistake; and that short- ly thereafter a 13c rate was extended. No evidence was offered of the unrea- sonableness of the rate attacked. HELD, that by agreement of both sides confin- ing the record to the present case, and establishing no precedent for similar complaints, an order might be entered permitting defendc^nts to make repara- tion of Ic per 100 lbs. Butters Lumber Co. V. A. C. L. R. R. Co., 13 I. C. C. 521, 522. (q) Cause of complaint having been apparently removed, and complainant not appearing at the hearing, complaint was dismissed. Learned-Haynes Co. v. St. L. & S. F. Ry. Co., Unrep. Op. 152. PROCEDURE BEFORE COMMISSION, §11 (a)— (j) 547 IV. ORDERS OF COMMISSION. §11. Modification, Validity, and Effect. (a) An order of the Interstate Com- merce Commission is not invalid be- cause it fails to correct the more serious discrimination found to exist by the Commission. If it removes one discrim- ination it is not inoperative because it fails to remove others. N. Y. C. & H. R. R. R. Co. V. I. C. C, 168 Fed. 131, 137. (b) An order of the Interstate Com- merce Commission is not invalid from the fact that it goes beyond the issues technically presented by the pleadings where the parties in interest appear and the situation is fully considered so as to cover the ground involved in the order entered. N. Y. C. & H. R. R. R. Co. V. I. C. C, 168 Fed. 131, 139. (bb) No order establishing rates covering a wide expanse of territory made at the present time, carriers be- ing given a certain time within which to comply with the Commission's find- ings. City of Spokane v. N. P. Ry. Co., 23 I. C. C. 454, 456. (c) Only carriers that are before the Commission are bound by findings of the Commission in a particular case. Fels & Co. V. P. R. R. Co., 23 I. C. C 483, 486. (cc) Commission can at any time re- call and amend its order, and it ought to do so whenever it appears that an order is erroneous, but it must also be assumed that judgment of Commission was correct upon facts as presented. Traugott Schmidt & Sons v. M. C. R. R. Co., 23 I. C. C. 684, 685. (d) In view of the fact that the rates attacked prior to the filing of the complaint and that the present rate has been maintained for more than two years, no requirement as to a rate for the future will be made. Acme Cement Plaster Co. v. St. L. & S. F. R. R. Co., 22 I. C. C. 283, 285; Switzer Lum- ber Co. V. A. & M. R. R Co., 22 I. C. C. 471, 474. (dd) Where an unreasonable joint rate has been collected, the liability of the parties to such action is joint and several, and the Commission may award reparation against one of the roads which participated in the traffic, even though other roads which performed a part of the service are not made par- ties defendant to the formal complaint asking reparation. Webster Grocer Co. v. C. & N. W. Ry. Co., 21 I. C. C. 20, 21. (e) Orders of the Commission, other than for the payment of money, may continue in force for a period not ex- ceeding two years. Douglas & Co. v. C. R. I. & P. Ry. Co., 21 I. C. C. 97, 98. (f) Where part of a joint through rate is found unreasonable and the carriers for the part of transportation for which the rate is found unreason- able are parties defendant, reparation may be awarded against such carriers, although the delivering carrier whose local rate formed part of the through joint rate, which local rate is not at- tacked, is not a party defendant. Wil- lamette Pulp & Paper Co. v. B. & A. R. R. Co., 21 I. C. C. 178, 180. (g) The law permits the Commission to make an order effective for a maxi- mum period of two years. If an order is issued it does not necessarily follow that it would be for the maximum period. Any decision made or order entered by the Commission may be re- opened by the Commission at any time. Douglas & Co. V. C. R. I. & P. Ry. Co., 21 I. C. C. 541, 544. (h) While it has great respect for the official actions of state commissions the Interstate Commerce Commission cannot withhold proper action in an in- terstate situation because it is antici- pated that some opposing or retaliatory action will be taken by a state body. In Re Advances in Rates by Carriers Operating Between the Mississippi and Missouri Rivers, 21 I. C. C. 546, 552. (i) The Commission has complete power to suspend or modify its orders. Loftus V. Pullman Co., 19 1. C. C. 102, 104. (j) Where a carrier has voluntarily reduced a rate shortly after charging the higher rate attacked, 15 months prior to the filing of a complaint, and the claim was never presented to de- fendant for informal adjustment and the latter stood willing to adjust it, the Commission will order defendant to maintain the rate only for two years from the date defendant voluntarily put the same in force. Tully Grain Co. v. F. S. & W. R. R. Co., 16 I. C. C. 28, 29. 148 PROCEDURE BEFORE COMMISSION, §11 (k)— (u) (k) Where one of defendant carriers by its pleadings denies the unreason- ableness of a rate charged, making a formal complaint and hearing necessary, and another defendant, being the only defendant appearing at the hearing, ad- mits the unreasonableness of the rate and the justness of the rate claimed by complainant, the Commission will not treat the complaint as an informal one and prescribe that the rate demanded be kept in force for only one year, but will treat the complaint and hearing as formal and prescribe a rate to be kept in force for a period of not less than two years. Stone-Ordean-Wells Co. v. C. B. & Q. R. R. Co., 16 I. C. C. 30, 31. (1) Where rates generally are at- tacked, all parties should have an op- portunity to be put on notice of the charges which must be met. Where specific rates are attacked the Commis- sion cannot legitimately go beyond these rates in its decision. Sanford v. West- ern Express Co., 16 I. C. C. 32, 36. (m) Any order must be limited to the situation under the petition filed. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 71. (n) The Commission can only act in making its orders upon the case presented. City of Spokane v. N. P. Ry. Co., 16 I. C. C. 179, 181. (o) The Commission is an adminis- trative body. The rates, regulations, and practices which it establishes with- in its jurisdiction become rules of ac- tion which may and must enter into the business dealings of the court. It may be necessary to change from time to time these rulings as varying con- ditions require, but they should never be changed except upon due notice to the public, which is affected by them, and it would be altogether intol^able if the change could be made retro- active. Nebraska-Iowa Grain Co. v. U. P. R. R. Co., 15 I. C. C. 90, 93. (p) An order of the Commission for the payment of money does not have the effect of an order, decree or judgment of a court, nor is it enforceable by process, nor does it become a lien upon the property of the defendant. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 155. (q) While ordinarily in awarding reparation the Commission will order the rate found to be reasonable to be established for the future, it is not nec- essary for it to inquire into this indi- vidual rate pending the general in- quiry. Hydraulic Press Brick Co. v. Vandalia R. R. Co., 15 I. C. C. 175, 176. (r) Where the Commission has in its opinion indicated that through rates are unreasonable, but enters no order, shippers may later call attention of the Commission to the matter and secure such order if defendants do not within a reasonable time adjust their rates as suggested by the Commission. Oshkosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109, 113. (s) Where points of shipment are not involved in a proceeding for the reduction of rates and for reparation but would have been entitled to such reduction and reparation had they been included in the complaint, the Commis- sion, though it will not enter an order with respect to such points, will inti- mate to the railroad that it should make for them a like reduction. For- ster Brothers Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. 232, 236. (t) Where a suit has been begun to vacate an order of the Commission pro- hibiting the payment of elevation charges and certain interests are about to institute injunction proceedings, and it is evident that if the payment of such allowances were stopped at cer- tain points and to certain persons, while continuing at other points and to other persons, a condition of discrimination and confusion might result, the Commis- sion will postpone the effective date of its order and recommend to carriers to defer suits until the opinion of the courts may be obtained. Traffic Bureau Merchants' Exchange v. C. B. & Q. R. R. Co., 14 I. C. C. 551, 552. (u) Where complainant is charged a rate of IIV2C on walnut logs from New- port, Ark., to East St. Louis, 111., where defendants agree to establish a rate between those points of ll%c and to make reparation on that basis, and where complainant concurs upon the condition that the Commission will fix the rate for a period of one year, the Commission will hold the 171^0 rate un- reasonable, establish the 11 ^/^c rate and award reparation on that basis. East St. Louis Walnut Co. v. M. P. Ry. Co., 14 L C. C. 553, 554. PROCEDURE BEFORE COMMISSION, §11 (v)— §13 (f) 549 (v) Defendant having voluntarily re- duced its rate on snapped corn and made reparation for the shipment under its former rate is ordered to keep the re- duced rate in effect for a period of two years. Ocheltree Grain Co. v. C. R. I. & P. Ry. Co., 13 I. C. C. 238, 239. §12. Review. See Courts, §5; Commerce Court, I, A; Forwarders, I (d); Reason- ableness of Rates, §1 (g), (I). By amendments to Act of 1906, orders of Commission, if resisted by carriers, may be reviewed before jury in courts of common law. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 154. Under the Act to Regulate Commerce complainants have no recourse to the courts in order to test the soundness of the rulings of the Commission. Field V. Southern Ry. Co., 13 I. C. C. 298, 299. V. PARTIES. See Association; Courts, §1 (a); Crimes, §24; Procedure Before Commission, V; Througii Routes and Joint Rates, §11 (2) (f), §16; Transportation, §11 (b); Recon- signment, §7; Reparation, §6, §18 (b). §13. Necessary and Proper Parties. See Association. (a) It would seem to be the com- monest prudence on the part of car- riers to require every complaint affect- ing the Official Classification to be forth- with submitted to the Official Classifi- cation Committee, which should be au- thorized to make a full presentation of the matter to the Commission. But while this is true the Official Classifica- tion Committee is not a body against which the orders of the Commission can run, and it is no part of the Com- mission's duty to bring to the atten- tion of this committee proceedings which affect that classification. White- land Canning Co. v. P. C. C. & St. L. Ry. Co., 23 I. C. C. 92, 93. (aa) No decision can be made by the Commission where carriers inter- ested are not parties to a proceeding. Byrnes v. A. C. L. R. R. Co., 23 I. C. C. 251, 252. (b) The Chamber of Commerce of a city is a proper party to he heard upon the application of carriers to be relieved from the operation of the fourth sec- tion in fixing rates to such city. Grand Junction Chamber of Commerce v. D. & R. G. R. R. Co., 23 I. C. C. 115, 117. (bb) Only carriers that are before the Commission are bound by findings of Commission in a particular case. Fels & Co. V. P. R. R. Co., 23 I. C. C. 483, 486. (c) All participating carriers should be joined as parties in an attack upon a joint rate. Reno Grocery Co. v. S. P. Co., 23 I. C. C. 400. 401. (d) A complaint for damages named one road as defendant. HELD, that two 'connecting lines were necessary parties, such roads being operated as independ- ent properties, though controlled, through stock ownership, by the road named as defendant. Mountain Ice Co. V. D. L. & W. R. R. Co., 21 I. C. C. 45, 51. (dd) Where an objection as to the sufficiency of the parties defendant was raised for the first time on the final ar- Tument. HELD, that where the neces- sary parties were omitted in the original petition and leave was granted to bring them in by amendment, and such car- riers understood that they had been made parties and filed answers and the case proceeded as though they were parties the Commission regarded the carriers as properly before it; but, if not, then the necessary amendment should be treated as filed nunc pro tunc. Mountain Ice Co. v. D. L. & W. R. R. Co., 21 L C. C. 45, 51, 52. (e) Where the Commission has sus- pended rates in Southern Classification territory upon hearing, it cannot pass upon the reasonableness of rates in Official Classification territory, none of the carriers in the latter territory hav- ing been made parties. In Re Ad- RHces in Rates on Locomotives and Tenders, 21 L C. C. 103, 112. (f) Complainant attacked the publica- tion of an unreasonable rate for the transportation of iron ore from Grand Rapids, Minn., to Allouez Bay in the city of Superior, Wis. Complainant and his associates had spent about $50,- 000 in work preliminary to the opening of ore mines owned by them at Grand Rapids. The actual opening and opera- tion of them would require an expendi- ture of hundreds of thousands of dollars. Defendants published a distance-tariff rate of 8.1c per 100 lbs., which com- plainant alleged depressed the value of 550 PROCEDURE BEFORE COMMISSION, §13 (g)— (i) his lands so that it was impossible for him and his associates to sell, lease or develop the same. Defendant moved to dismiss the complaint at the close of complainant's case, principally because it contended it could not be required to publish a rate until ore should actually be offered it for shipment, and also be- cause complainant had ulterior motives in the filing of the complaint and could not be in a position to ship ore within the maximum order the Commission could enter, namely, two years. De- fendant claimed it would publish a suit- able rate when ore was offered it for shipment. HELD, a difference in the rate of transportation may determine whether certain ore lands have com- mercial value or not; whether they shall be developed or lie idle. Without in the least questioning the good faith of the statement, the promise of the defendant to publish a rate in line with the then established rate from common territory, when complainant's mine shall have actually been opened and ore offered for shipment, can scarcely be regarded as sufficiently definite and certain to warrant hnudreds of thou- sands of dollars being invested upon th€ strength of it. If it is necessary under the Act to have the freight actually upon the ground before the Commission can assume jurisdiction and prescribe a just and reasonable rate, what is there to prevent a railway company, if its agents should see fit, to resort to such perversity, from refraining to publish a rate on potatoes, for instance, until the potatoes are actually within sight, and from refusing to publish such a rate before the potatoes are planted, or while they are being cultivated and growing, and after they have been dug, but not yet brought to the station. Any man who is situated as is the complainant has a right to know what the lawful published rate on his pro- posed product is and will be for a reasonable period of time in the future. The fact that complainant could not pos- sibly ship within two years of the effective period of an order of the Commission is not a material point. If the Commission prescribes a reasonable rate to-day for the movement of traffic which possibly may not move within two years, and the railway company refuses voluntarily to continue that rate for a period longer than two years, it becomes the plain duty of the Commis- sion to institute a new investigation at the proper time, and prescribe a rate which shall be just and reasonable, under the circumstances and conditions prevailing at such time. The fact that all the carriers operating in the Mesaba district, and all of the carriers and par- ties interested in the ore rates are not made parties to this proceeding is im-3j material, in its bearing upon the legality J of this complaint. A complainant can- not be expected to search public and private records, with the view of discov- ering all parties that may be interested in a certain proceeding. Full publicity attends every step of all proceedings before the Commission, and it must be assumed that parties interested will take notice of what is going on. The complainant in the present proceeding was clearly within his legal rights when he filed his complaint, and it is the duty of the Commission after full hear- ing and investigation to render a deci- sion with reference to the reasonable- ness of the rate under attack. If the complainant has ulterior motives or hopes for indirect benefits not directly arising out of the rate in controversy, that is a matter which should not re- strain this Commission from performing its plain duty under the law. Motion overruled. Lum v. G. N. Ry. Co., 21 I. C. C. 558, 560, 561, 562. (g) The rate of a carrier not made a party defendant cannot be held to be in issue. Memphis Freight Bureau v. St. L. S. W. Ry. Co., 20 I. C. C. 33, 36. (h) The Commission declines to ex- press an opinion whether the assignee of a claim for reparation can maintain proceedings in his own' name before the Commission. O'Brien Commercial Co. V. C. & N. W. R. R. Co., 20 I. C. C. 68. (i) Complainant asked reparation on a shipment of glue stock shipped from Philadelphia, Pa., to Gowanda, N. Y. The complaint alleged that the ship- ment moved via the lines of the Phil- adelphia & Reading R. R. Co. and the Erie R. R. Co. HELD, that in as much as the carriers named are not connect- ing lines it is apparent there is a de- fect of parties defendant, and on ac- count of the non-joinder of certain of the carriers participating no finding will be made with respect to the rate applying between those points. Com- plaint dismissed without prejudice. Barr Chemical Works v. P. & R. R. R. Co., 20 I. C. C. 77, 78. PROCEDURE BEFORE COMMISSION, §13 (j)— (v) 551 (j) A complaint mistakenly alleged that shipments moved from Manchester, N. Y., via Milwaukee, to Waterloo, Wis., when they moved from Manchester, Vt. and all the carriers between the point of origin and Milwaukee were not made de- fendants on account of this mistake. HELD, such error was not material with respect to the power of the Commission to determine the reasonableness of the portion of the through rate, from Mil- waukee to Waterloo, and did not pre- vent it from awarding reparation against the delivering carrier. Roach & Seeber Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 172, 172. (k) The fact tnat one of the car- riers participating in a movement is not made a party and at the time of the hearing, when the statute of limi- tations has run, does not constitute a fatal defect in the record so as to pre- vent the awaraing of reparation for the exaction of an unreasonable rate. Och- eltree Grain Co. v. T. & P. Ry. Co., 18 I. C. C. 412, 413. (1) Where a carrier involved in rates attacked is not made a party, the Com- mission can only deal with the rates themselves; if an order is desired di- recting the carrier to desist from un- lawful practices, it must be made a party defendant. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 402, 403. (m) The Commission will not enter an order against a carrier to desist from an arrangement resulting in unjust dis- crimination where the carrier is not a I arty to the proceeding. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 73, 77. (n) Complaints may be filed even where there is no direct damage to the complainant. Washer Grain Co. v. M P. Ry., 15 I. C. C. 147. (o) Where charges are paid by the consignee, but billed back against" the consignor, the consignor is properly the moving party in a reparation proceed- ing. Beekman Lumber Co. v. St. L I M. & S. Ry. Co., 15 L C. C. 274. (p) A change cannot be ordered in a classification rule, except as it applies • e defendant. Bennett v. M. St. P. & S. Ste. M. Ry. Co., 15 I. C. C. 301, 303. (q) Where the connections of a de- fendant railroad have not been made parties in a proceeding to compel a rate revision, no order will be entered governing rates for shipments over such connecting carriers, but defendant will be admonished to arrange with its connections for the application of the new rates decreed. George's Creek Basin Coal Co. v. B. & O. R. R. Co., 14 I. C. C. 127, 134. (r) No order will be entered against lines not parties to the record. National Petroleum Ass'n v. C. M. & St. P. Ry. Co., 14 L C. C. 284, 285. (s) Where the delivering carrier as- sesses a demurrage charge and is not made a party to a proceeding against the initial carrier, no order can be entered for reparation with respect to sucn chargfe. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 14 I. C C. 606, 608. (t) A freight bureau which is main- tained by a manager and whose mem- bers become such by entering into writ- ten contracts with the bureau, by which each pays a stipulated annual fee and by which the bureau undertakes to adjust rate disputes, is a competent party complainant in a proceeding be- fore the Commission for the reduction of rates. Forest City Freight Bureau V. Ann Arbor R. R. Co., 13 I. C. C. 109, 114. (u) Where an interstate rate at- tacked and found to be unreasonable is made up of several locals, and is not a joint through rate, the proper method before a formal order is entered is to cite before the Commission the proper defendants, praying the establishment of a through route and joint rate, upon which the Commission can do justice to all parties, as upon a complaint asking an order to compel defendants to desist from maintaining the attacked rates, the Commission can enter no order, as Its power to reduce a through rate composed of several locals, by reducing each local, is doubtful. Merchants Traffic Ass'n v. N. Y. N. H. & H. R. R. Co., 13 I. C. C. 225, 228. (v) Joint class rate exceeded cer- tain combination of commodity rates. Upon examination of tariffs carrying the commodity rates, it is found that the lines on whose rails the traffic orig- inated are not parties hereto. Complaint dismissed. Carpenter v. St. L. I. M. & S. Ry. Co., Unrep. Op. 529. 552 PROCEDURE BEFORE COMMISSION, §14 (a)— §16 (g) VI. SET-OFF. §14. In General. (a) The Commission has no authority In a proceeding by a shipper to recover reparation to award a set-off to the car- rier for unpaid freight bills due from the shipper, since to award set-off amounts to the same thing as adjudicating the claim of a railroad company against a shipper, whereas, the only authority of the Commission is to adjudicate a claim of a shipper against a railroad company for violation of the interstate commerce law. Laning-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 38. VII. EFFECT OF EVIDENCE. §15. Equities of Cause. See Reasonableness of Rates, §24 (b). (a) There are cases in which "tainted hands" unquestionably compel a per- emptory dismissal; but the Commission does not inquire into equities not con- nected with the issue before it. Lum V. G. N. Ry. Co., 21 I. C. C. 558, 562. (b) The through rate, $9.75 per ton, on blacksmith coal from Chicago to Portales, N. M., was higher than the combination of locals, $8.25 per ton, on bituminous coal via Pittsburg, Kan., from Chicago to Portales. In order to secure such lower rate complainant at Chicago, with full knowledge of the rate situation, connived with defendant's agent at Chicago to have the shipment of blacksmith coal billed to Pittsburg as bituminous coal. The agent at Pittsburg refused to rebill the coal to Portales as bituminous coal and demanded the local rate on blacksmiths' coal from Pittsburg to Portales, $13.20 per ton. Complainant refused to pay, and the coal was seized and sold by defendant for freight charges. HELD, complainant having fraudulently attempted to obtain the benefit of a rate not applicable to its shipment, and de- fendant having concurred therein, neither party came before the Commission with clean hands, and a relieving order with respect to the proceeds of the sale of the coal should be denied. Sligo Iron Store Co. v. A. T. & S. F. Co., 17 I. C. C. 139, 142. §16. Judicial Notice. See Evidence, III. (a) While the rates from certain east- ern and southern points are not involved in this proceeding, the Commission never- theless considers the entire situation. Merchants' Freight Bureau v. M. P. Ry. Co., 21 I. C. C. 573, 575. (b) The Commission should exhaust its activities in developing pertinent facts necessary to full investigation and hearing of complaint. Quammen & Au- stad Lumber Co. v. C. M. & St. P. Ry. Co., 19 I. C. C. 110, 111. (c) The Commission is bound to con- sider the whole field when a general rate adjustment is demanded, and must carefully consider the probable effects upon other points not involved in the specific complaint under consideration. •Greater Des Moines Committee v. C. M. & St. P. Ry. Co., 18 I. C. C. 73, 79. (d) No reason exists why the Com- mission cannot take judicial notice of the lawful rate established by another sovereign p-ower applicable to shipments in its own domain, Awbrey & Semple v. G. H. & S. A. Ry. Co., 17 I. C. C. 267, 271. (e) In the general adjustment of rates, individual instances of seeming discrepancy are noticed, which are inex- plainable from a cursory examination, but often when such instances are made the subject of specific complaint, cir- cumstances and conditions before un- known are brought out tending to justify the apparently unreasonable relation. The Commission consequently moves with great caution in condemning a rate or practice, and does so only when the facts before it amply warrant such ac- tion. Sanford v. Western Express Co., 16 L C. C. 32, 36. (f) The Commission's conclusions must be reached with due consideration for conclusions which it has already an- nounced on the same subject and from knowledge which it has gathered with relation thereto in other cases and inves- tigations. Swift & Co. v. C. & A. R. R. Co., 16 L C. C. 426, 429. (g) The only duty of the Commission In this case is to establish reasonable rates from eastern points of origin to Spokane, and in so doing it can only act upon those rates specifically called to Its attention, although it must have in mind the effect upon the revenues of the carriers of resulting reductions upon other commodities and at other points from Spokane. City of Spokane v. N. P. Ry. Co.. 15 L C. C. 376, 419. PROCEDURE BEFORE COMMISSION, §17 (a) — (1) 55^ §17. Res Adjudlcata. See Evidence, V. (a) In cases before this Commission involving rates, neither the plea of res adjudicata nor stare decisis, as used at common law, has any standing as affect- ing shipments moving subsequent to the decision of the Commission relied on. Waco Freight Bureau v. H. & T. C. R. R. Co., 19 I. C. C. 22, 24. (b) A plea of res adjudicata is con- clusive as to all that preceded the ef- fective date of the Hepburn Act. Na- tional Hay Ass'n v, M. C. R. R. Co., 19 I. C. C. 34, 37. (c) Rates reasonable at the present time may within the period of two years become very unreasonable by reason of changes in circumstances and conditions, economic, transportation, or the like. It should be just as apparent that a rate more ago may become reasonable by which was unreasonable two years or reason of such changes in conditions. A plea of estoppel by reason of former adjudication is not good in so far as an investigation of present rates is con- cerned, although in a former proceeding a decree of a court was a general find- ing for the defendants on all the is- sues of fact. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 37. (d) While an order of the Commis- sion in a particular case must necessarily fix the rights of a party to the proceed- ing so far as past shipments are con- cerned, and must necessarily restrain un- til further order the continuance of a rate or practice condemned, and compel the carrier to observe the rate or prac- tice prescribed for the future, these great questions of transportation are not fore- closed of further discussion and consid- eration upon further complaint. Addi- tional experience with the actual opera- tion of rules that combine commercial with physical capacity in the rating of coal mines for car distribution, may throw new light upon a matter that has vexed the Commission, as well as many carriers that have endeavored to do equity as between different mines on their lines, and if so the Commission shall not hesitate to modify what has been said in this and in other cases be- fore it on that question. The principle of stare decisis has little application in proceedings involving questions of this nature. Hillsdale Coal & Coke Co v. P. R. R. Co., 19 I. C. C. 356, 361. (e) The doctrine of stare decisis has little application in proceedings before the Commission involving economic ques- tions of transportation. Hillsdale Coal & Coke Co. V. P. R. R. Co., 19 I. C. C. 356, 361. (f) Although the Commission in a prior case has held that a general ad- justment of rates in a large territory is not shown to be unreasonable, shippers are not precluded from bringing subse- quent complaints against particular rates in the territory alleged to be unreason- able. Ferguson Saw Mill Co, v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 391, 393. (g) Plainly there can be no such thing as judicial estoppel in the proceedings of the Commission, since its orders are not judgments, nor is it a judicial body, and this is especially true where the parties are not the same. Receivers & Shippers Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 444. (h) When a given rate situation has been fully considered and deliberately passed upon by the Commission, the de- cision ought to be, if not binding upon it, certainly of very great weight with it in considering the same situation in a later proceeding between different par- ties, but this rule applies only where the same state of facts is involved in the latter as in the former proceeding. Re- ceivers & Shippers' Ass'n of Cincinnati V. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 445. (ij) Where reparation has been awarded for an excessive charge on hay. the Commission will not enter an order establishing for the future the lower rate upon which such reparation is based where the rate situation between the points in question has been determined by a previous decision. Arkansas Fuel Co. V, C. M. & St. P. Ry. Co., 16 I. C. C 95, 99. (k) A decision in another case against other carriers operating in dif- ferent territory under essentially dis- similar circumstances and conditions af- fords no controlling precedent. Chicago Lumber & Coal Co. v. Tioga Southeast- ern Ry. Co., 16 I, C. C. 323, 328. (1) While there is in the nature of things no estoppel of record in proceed- ings before the Commission it must of necessity, when it reaches a conclusion upon a given state of facts, adhere to that conclusion in subsequent proceed- 554 PROCEDURE BEFORE COMMISSION, §17 (m)— §19 (c) ings unless some new facts or changed conditions are brought to its attention, or unless it proceeded upon some mis- conception in reaching the original de- cision. Banner Milling Co. v. N. Y. C. «& H. R. R. R. Co., 14 I. C. C. 398, 400. (m) Where the rate question as raised in a complaint is the same as that determined in a former proceeding before the Commission, between the same parties, the Commission may, in its discretion, treat such complaint as a new and independent proceeding where it is claimed the former decision was made under a misapprehension of fact or of law. Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 398, 401. (n) While the action of the Com- mission in one case touching the reason- ableness of a rule or regulation affect- ing rates ought ordinarily to afford a guide for its action in another case in- volving the same rule or regulation, even though between other litigants, nevertheless the question of reasonable- ness is always one of fact, and each case must stand upon its own record. The ruling on a question of reasonable- ness in a previous case between other parties is not controlling where different facts are involved. Kansas City Hay Dealers' Ass'n v. M. P. Ry. Co., 14 I. C. C. 597, 600. §18. Requesting Information of Carrier. (a) In a complaint charging an ex- press company with unjust discrimina- tion in transporting money, a subpoena duces tecum will not issue to compel defendant to furnish voluminous infor- mation with respect to its financial and business transactions where it does not appear necessary so to do and the information sought is not pertinent to the questions involved. American Bank- ers' Ass'n V. American Express Co., 15 I. C. C. 15, 24. §19. Tests of Revenue. (a) Proposed commodity rates in in- termountain cases to be put into effect pending decision by the Supreme Court. City of Spokane v. N. P. Ry. Co., 23 I. C. C. 454, 456. (aa) Commodity rates proposed by carriers permitted to go into effect pending decision of long-and-short-haul question. R. R. Com. of Nev. v. S. P. Co., 23 I. C. C. 456, 457. (b) The Commission reduced com- modity rates from the east to Spokane. HELD, that before making the final order it will be advisable to learn the result of an actual test, and that car- riers will be required for the months of July, August and September, 1910, or for such other representative months as may be determined upon by the Commission, after conference with the carriers, to furnish an accurate and de- tailed account, showing the revenue which accrued upon business actually handled under present rates, and the revenue which would have accrued upon the same business had the rates here prescribed been in effect. This ac- count should be confined to traffic cov- ered by the rates named, but the car- riers may, if they elect, indicate what other changes will be required which are not covered by the rates prescribed in this" and other cases, and may keep separate accounts showing the loss as applied to actual transactions. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 178. (bb) Before reducing the class and commodity rate between eastern terri- tory and Utah common points by a formal order, the Commission will re- quire the defendant to furnish an ac- curate account for representative months, showing the difference between the re- ceipts upon traffic actually moved under present rates and what those receipts would have been on the same traffic had the proposed reduced rates been in effect. Carriers may also indicate any changes in other rates which would in their opinion be necessitated by the putting in of the rates proposed and may show tne reduction in revenue so occasioned, but the changes should be definitely indicated, and the loss of revenue due to other reductions should be kept entirely distinct from that due to the rates here specified. Commercial Club, Salt Lake City, v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 230. (c) Before making a formal order re- ducing the commodity rates from east- ern territory into Nevada, the Com- mission will require from the carriers for such representative months as may be agreed upon statements showing the following facts with reference to ship- ments into Nevada: The commodity; the weight, C. L. or L. C. L.; point of origin, and the transcontinental terri- torial group in which the same is sit- PROCEDURE BEFORE COMMISSION, §19 (d)— PROPORTIONAL RATES, I (b) 555 uated; rates that would be applied under the tariffs in effect July 1, 1910; the gross charges thereunder; the rate applicable under the order made in this case; the gross charges thereunder; the rate that would be applied were the movement to Sacramento; the gross charges thereunder. The complainant will be ordered in this case on or be- fore Oct. 1, 1910, to furnish to the Com- mission and to the defendant S. P. Co. a list of commodities upon which com- modity rates are desired, together with an outline of the various terri- tories or groups from which commodity rates should apply. Railroad Commis- sion of Nevada v. S. P. Co., 19 I. C. C. 238, 256. (d) Before reducing the commodity rates to Phoenix from eastern territory to a basis of those enjoyed by Los An- geles, the Commission will require a statement for such representative months as may be agreed upon, showing the commodity, the weight, carload or less- than-carload, point of origin, and the transcontinental territorial group in which the same is situated, rate appli- cable under the tariffs in effect July 1, 1910, the gross charges thereunder, the rate applicable under the order made in this case, if extended to all points in Arizona east of and intermediate to Phoenix, the gross charges thereunder, the rate that would be applied were the movement to Los Angeles, and the gross charges thereunder. The complainant will be required to furnish to the Com- mission on or before Oct. J., 1910, and to the delivering carriers a list of commod- ities upon which commodity rates are de- sired, together with an outline of the various territories or groups from which rates should apply. Maricopa County Commercial Club v. S. F. P. & P. Ry. Co., 19 I. C. C. 257, 258. (e) Before reducing the class rates from Tacoma, Seattle and Portland to points in Washington, Idaho, Montana and Oregon, the Commission will require an accurate statement for such repre- sentative months as may be agreed upon, showing the revenue which actually ac- crued under the class rates in issue and the revenue which would have accrued on the same volume of business under a 20 per cent reduction in those rates. The account must, of course, be limited to the rates and traffic mentioned, but the car- riers may keep and present to the Com- mission separate accounts, showing the loss and revenue resulting from other reductions, which they would feel obliged to make, as a consequence of the Com- mission's finding in this case. Portland Chamber of Commerce v. O. R. R. & Nav. Co., 19 I. C. C. 265, 284. (f) Where the Commission has al- lowed defendant railroads to assess cer- tain track storage charges, it may limit the order to a certain date and require defendants to file at the expiration of the period a statement showing the amount of track storage charges assessed, the contents of each car against which they are assessed, and the reason, if known, why the car was not more promptly un- loaded. Such information to serve as a guide to the Commission in fixing said charges for the future. N. Y. Hay Ex- change Ass'n V. Penn. R. R. Co., 14 I. C. C. 178, 188. PROPORTIONAL RATES. I. APPLICATION. II. DISCRIMINATION. III. LEGALITY. IV. REASONABLENESS AND EVI- DENCE. I. APPLICATION. See Facilities and Privileges, §4 (f ) ; Through Routes and Joint Rates, §18. (a) The fact that a published sched- ule contains a heading indicating that the proportional rates contained therein are adopted in connection with certain other designated roads, does not limit the application of these rates to ship- ments received by the carrier publish- ing the rates from those roads where the body of the tariff indicates that the proportional rates named therein are to be applied on traffic received by it from roads other than those designated in the heading. K. C. S. Ry. v. Albers Comm. Co., 223 U. S. 573, 595, 32 Sup. Ct. 316, 56 L. ed. 556. (b) Defendant carrier extended from Kansas City, to Texarkana a propor- tional rate of 10c from Kansas City to Texarkana on grain coming to Kan- sas City by another line from Omaha. The tariff also applied this proportional from certain common points such as St. Joseph, Atchison, and Leavenworth to Texarkana on grain coming froni beyond to these points and carried by roads other than defendant from these common points to Kansas City. HELD, 556 PROPORTIONAL RATES, I (c)— II (a) in order to make the 10c proportional the legally established rate on grain coming from Omaha to Kansas City xnd shipped thence over defendant's line to Texarkana it was not necessary that the carriers from these common points of St. Joseph, Atchison, 'and Leaven- worth should concur therein, since they had no interest in the shipmeni. K. C. S. Ry. Co. V. Albers Comm. Co., 223 U. S. 573, 594, 32 Sup. Ct. 316, 56 L. ed. 556. (c) When a carrier publishes a pro- portional rate from a basing pomt to a certain destination, it thereby makes itself a link in the through transporta- tion, and whatever privileges it accords to millers at the basing point it should accord to millers on its line intermedi- ate thereto. Southern Illinois cViillers' Ass'n V. L. & N. R. R. Co., 23 I. C. C. 672, 678. (d) There is no substantial differ- ence between a "reshipping" rate and what is known as a "proporuonal" rate. The Commission has held that proportional rates are not per se un- lawful, and there is no reason to con- demn "reshipping" rates, as such, upon the present record. Baltimore Chamber of Commerce v. B. & O. R. R. Co.. 22 L C. C. 596, 600. (e) Complainants shipped a carload of gum lumber from Brilliant, Ala., to Thebes, 111., and thence forwarded it to Clinton, la. The tariff under which the shipment moved carried a i'l'opor- tional rate of lie per 100 lbs. from Winfield to Thebes when "for beyond." HELD, the fact that the shipment was intended to be reconsigned at Thebes for Clinton did not entitle complainant to the proportional rate under a proper construction of the tariff. Beekman Lumber Co. v. I. C. R. R. Co., 20 I. C. C. 98, 99. (f) Where a shipment to a local point is unloaded, and later reshipped at the local rates, it is not entitled to the benefit of a lower proportional established more than a year thereafter. Central Lumber Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 495, 496. (g) A proportional rate should not be limited to traffic from particular places. Bayou City Rice Mills v. T. & N. O. R. R. Co., 18 I. C. C. 490, 493. (h) A proportional rate was pub- lished, but this did not make it a legal rate in view of the existence of a pub- lished through rate. Lindsay Bi'os. v. B. & O. S. W. R. R. Co., 16 L C. C. (i) A proportional rate means a part of or a remainder of the through rate, or it means nothing at all. Kansas City Transportation Bureau v. A. f. & S. F. Ry. Co., 16 L C. C. 195, 201. (j) There is no uniform percentage relationship between local and propor- tional rates, the proportional rates from one point being made with re- lation to those from a compcititive point to the same markets. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 511. II. DISCRIMINATION. See Discrimination, §5 (i), §7 (z) ; Express Companies, §4 (a); Facil- ities and Privileges, §2 (d), §21 (b). (a) Certain milling points in central and eastern Wisconsin have been grouped with Chicago and Milwaukee in the proportional rates on grain ani grain products from Kansas City, Oma- ha and Council Bluffs. On May 15, 1911, the proportional rates of these Wiscon- sin points were withdrawn, which raised the rate from Omaha and Coun- cil Bluffs from 12c to the local rate of 15 %c and to 14 %c from Kansas City. The proportional rates were can- celed because complaint had been made that the application of a proportional rate of 12c from the Missouri River to Wisconsin points, a distance of 700 miles, while • the rate to Duluth was 15c for a distance of 600 miles, was a discrimination against the millers of Duluth. The 12c proportional rate to Chicago and Milwaukee resulted to some extent from the competition of the Memphis and St. Louis gateways, which does not apply to the Wisconsin terri- tory in question. Chicago is not a competitor of complainants who are millers in central and eastern Wis- consin. While Chicago and Milwaukee millers may receive grain on the 12c proportional rate it may be cleaned and milled only on the basis of the 15%c rate with the privilege of ship- ping the . product to points beyond tak- ing the same rate. Complainants ex- pressly admitted the reasonableness of the local rates to Wisconsin points, but •complained of the discrimination against them by the lower proportional rates to Chicago and Milwaukee. HELD, if PROPORTIONAL RATES, II (aa) — (h) 557 the transit privilege is not abused at Chicago and Milwaukee there is no dis- crimination against the Wisconsin mill- ers based on the proportional rates to these two points, because it will cost millers at these points the same to compete with the millers in central and eastern Wisconsin as those millers pay. The admission of complainants that they do not contend that the present charges are unreasonable relieves defend- ants of the burden of justifying them, and therefore, there being no discrim- ination apparent, and no unreasonable rate involved, the complaint must be dismissed. Wisconsin State Millers' Ass'n V. C. M. & St. P. Ry. Co., 23 I. C. C. 494. (aa) Competition may justify the maintenance of proportional rates on grain at Omaha while denying such rates at Sioux City. Sioux City Ter- minal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 109. (b) There can be no discrimination against one manufacturer who does not ship over the defendant's line because it maintains a low inland proportional rate on a commodity, raw material des- tined to a competitor. In Re Rates, etc., of the Louisiana Ry. & Nav. Co., 22 I. C. C. 558, 564. (c) A proportional rate, like any other rate, should be open to all ship- pers. In Re Restricted Rates, 20 I. C. C. 426, 436. (d) On carloads of ear corn orig- inating at points on connecting lines beyond Enfield, 111., and shipped from Enfield to Henderson, Ky., and des- tined to southeastern territory, a rate of 7.08c was collected by the defendant L. & N. R. R. At the time of ship- ment it published for transportation to Henderson from all junction points on its St. Louis division other than Enfield of grain originating beyond said junction points and reshipped to east- ern points, a proportional rate of 3c. Such proportional rate was formerly applicable from Enfield but was omitted by mistake and was established sub- sequent to the shipments in question. HELD, the rate exacted was unduly discriminatory and unreasonable and should not have exceeded 3c. Repara- tion awarded. Henderson Elevator Co. v. L. & N. R. R. Co., 18 I. C. C. 538, 539. (e) A proportional rate is nothing more or less than a separately es- tablished rate, as that phrase is used in section 6 of the amended Act, ap- plicable to through transportation. And it has not been understood that a sepa- rately established rate can be other than an open rate available to all. Bascom Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 354, 356. (f) The rate on sugar-beet pulp from Waukesha, Wis., to eastern points is the same as from Chicago on ship- ments originating from Janesville, Wis. The C. & N. W. Ry. has a direct route from Janesville to Chicago which is shorter than its indirect route via Waukesha. The rate from Janesville to Chicago via the direct route is 6.09c; the rate from Janesville to Waukesha is 3c. HELD, following Larrowe Milling Co. V. C. & N. W. Ry. Co., 17 I. C. C. 443, on shipments from Janesville to eastern points, complainant was entitled to the combination on Waukesha, the proportional of said combination from Waukesha to said eastern point to be the same as the proportional from Chi- cago to said points, although the ship- ments in question actually moved by the direct route from Janesville to Chicago. Reparation awarded. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. 548, 549. (g) The application of proportional rates on grain from Omaha and Council Bluffs through Ohio River crossings and not through Henderson, Ky., is discriminatory. Henderson Elevator Co. V. I. C. R. R. Co., 17 I. C. C. 573, 575. (h) Complainants were engaged in the grain business at Henderson, Ky. On carloads of corn and oats from Omaha, Neb., and Council Bluffs, la., through Henderson to points in the southeast, complainant was assessed 4c higher than the rate in effect at the time of shipments on grain from said points to other Ohio River crossings destined to southeastern points, on account of a failure of defendant to provide in its tariffs for the same re- shipping privileges at Henderson as it provided in its tariffs at other Ohio River crossings. Subsequently, such transit privileges were extended to Henderson. HELD, the rate charged was excessive to the extent of 4c. Reparation awarded. Henderson Ele- vator Co. V. I. C. R. R. Co., 17 I. C. C. 573, 575. 558 PROPORTIONAL RATES, II (i)— III (aa) (i) Lower proportionals from points served by foreign carriers afford no basis for a charge of discrimination against a complaining point served by other carriers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 66. (j) On a shipment of elm hoops from Prairie Grove, Ark., to Nashville, 111., without routing instructions from the complainant, defendant charged a rate of 28i/^c per 100 lbs. made up, 221^0 Prairie Grove to Bast St. Louis, 111., and 6c East St. Louis to Nashville. Prairie Grove was 13 miles west of Fayetteville, Ark., from which station defendant's rate to East St. Louis was 15c. Defendant might have routed the shipment so as to gain a 5c rate from East St. Louis to Nashville. HELD, the proportional rate from Prairie Grove to East St. Louis should not have ex- ceeded the 15c rate from Fayetteville, and complainant was entitled to repa- ration against defendant initial carrier alone on the basis of 15c and also of Ic per 100 lbs. additional for mis- routing. Noble V. St. L. & S. F. R. R. Co., 16 I. C. C. 186, 187. (k) Defendants charged on 19 car- loads of range cattle shipped from Midland, Tex., to Kennebeck, S. D., 15c from Midland to Fort Worth; $95 per car from Fort Worth to Chamberlain, S. D., and a rate of 9i/^c thence to des- tination. Kennebeck is located 30 miles west of Chamberlain. HELD, the $95 per car rate should have been extended to Kennebeck, and complainant was en- titled to reparation for the 9i^c excess paid. Philip v. C. M. & St. P. Ry. Co., 16 I. C. C. 418, 419. (1) Complainant attacked the propor- tional rates from Indianapolis, Ind., to Cincinnati, O., and Jeffersonville, Ind., 110 miles, on through traffic destined to southeastern territory of 22, 19.5, 17.5, 11, 8.5, and 7c and yielding a per ton mile revenue of 4, 3.5, 3.2, 2, 1.5, and 1.27c for the first six numbered classes respectively as compared with the pro- portional rates from Chicago and Ohio river crossings, 300 miles, on traffic destined to southeastern territory of 35, 30, 22, 15, 13, and 10c, yielding a per ton mile revenue of 2.33, 2, 1.46, Ic, and 8.6 and 6.7 mills for the first six num- bered classes, respectively. The pro- portional rates from East St. Louis to Cincinnati- Jelfersonville, 304 miles, were 23, 19, 17, 12, 10, and 8c, and yielded a per ton mile revenue of 1.53, 1.26, 1.13c and 7.9, 6.7 and 5.3 mills for the first six classes, respectively, which rates were the basis in constructing rates to southeastern territory. Pro- portional rates were not applied from other intermediate points between In- dianapolis and Cincinnati and Louisville, such as Columbus, O., which paid the full local on through traffic to south- eastern territory. The proportionals from Indianapolis ranged from 12 to 15 per cent below the local rates to Ohio River points substantially increas- ing with relationship between the local and proportional rates from Chicago. To grant Indianapolis lower proportion- als would disturb the parity existing between the rates from Indianapolis to Ohio River points on traffic destined beyond and the rates from intermedi- ate points lying between Indianapolis and the Ohio River. HELD, since the rates from Indianapolis were not shown to be unreasonable per se and were lower by reason of its proximity than those from Chicago, giving Indianapolis an advantage in reaching southeastern territory and resulting in . no unjust discrimination against Indianapolis, the Commission would not grant the demand of complainant that the Indianapolis proportionals be determined strictly according to distances and be made 50 per cent of the Chicago proportionals, since so to do would result in an undue advantage to Indianapolis over Chicago. Indianapolis Freight Bureau v. C. C. C. & St, Louis Ry. Co.. 15 I. C. C. 504, 512. III. LEGALITY. See Advanced Rates, §5 (2) (f ) ; Evi- dence, §1 (c); Tariffs, §14. (a) A proportional rate limited in application to traffic from defined terri- tory is not of itself unlawful per se. Serry v. S. P. Co., 18 I. C. C. 554, 556. (aa) On carloads of salt from De- troit to Memphis complainant was charged a rate of 16c, which was the published joint rate from Detroit to Memphis. At the same time a propor- tional rate of 5%c was in effect from Detroit to St. Louis, for shipments be- yond, which, with the local rate of the connecting carrier, produced a through rate of 13 %c. The proportional rate could be used in constructing the rate to any point beyond St. Louis, but no PROPORTIONAL RATES, III (b)— IV (d) 559 particular point was designated. HELD, the 16c rate was the lawful rate for the shipment under the general rule that the specific rate must govern. Del- ray Salt Co. V. Detroit, Toledo & Iron- ton Ry. Co., 18 I. C. C. 245, 246. (b) A proportional rate is nothing more or l€ss than a separately estab- lished rate, as that phrase is used in section 6 of the amended Act, applica- ble to through transportation. A sepa- rately established rate cannot be other than an open rate available to all. A proportional rate is simply one way of making up the through charges between two points; but while no criticism can be directed against proportional rates applicable only to through movements from a defined territory or group of points, the Commission cannot recognize as valid a proportional rate limited to shipments that come into the propor- tional rate point over the lines of a particular carrier, since such a rate dis- criminates against shippers over other lines. Bascom Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 354, 356. (c) There exists no ground for a criticism of proportional rates applica- ble only to through movements from a defined territory or group of points. Bascom v. A. T. & S. F. Ry. Co., 17 I. C. C. 354, 356. (d) The A. T. & S. F. Ry. Co. al- lowed a rate of 10c on barbed wire, wire nails, wire staples, and wire fenc- ing, in carloads, from El Paso, Tex., to Las Cruces, N. M., when brought into El Paso over its lines, but charged a rate of 30c when brought into El Paso over the lines of other carriers. To take advantage of the 10c rate the shipper might keep the goods at El Paso as long as he desired and the rate would be accorded to him upon shipment of the same to Las Cruces, provided only the goods were originally shipped into El Paso over defendant's lines. HELD, such a rate was not in any sense a proportional rate, could not be sanctioned as a transit, reconsign- ment, or diversion privilege, and was unlawful, being merely a device to com- pel shippers to send their goods into El Paso over defendant's road. Bas- com Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 354, 357. (e) Proportional rates from more dis- tant points must be less per mile to permit such points to compete in the common market, and the Commission is not warranted in condemning a sys- tem of rate making whereby wholesome competition between producing centers is preserved. Indianapolis Freight Bu- reau V. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 512. IV. REASONABLENESS AND EVI- DENCE. See Classification, §3 (h); Discrim- ination, §4 (00): Evidence, §13 (5); Long and Short Hauls, §7 (aa). §12 (2) (e). (a) A carrier cannot maintain a pro- portional rate on traffic reaching its line via one or more specified routes and at the same time maintain a higher proportional rate on the same traffic from the same point of origin and des- tined to the same point of consumption that comes to it at the same point via the same connecting carrier but over another route formed by different inter- mediate connecting carriers. Rosen- baum Bros. v. L. & N. R.'R. Co., 22 L C. C. 62, 65. (b) Proportional rates applying to through traffic might well be lower than corresponding local rates. R. R. Comm. of Kan. v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 415. (c) While local and proportional rates are not ordinarily comparable, comparisons of such rates may be con- sidered in connection with other evi- dence in determining the reasonable- ness of a particular rate. Lindsay Bros. V. L. S. & M. S. Ry. Co.. 22 L C. C. 516, 517. (d) Complainants attacked the local rate of $1.35 per net ton and the pro- portional rate of 80c per net ton on cement, from Martin's Creek, Pa., to Philadelphia, Pa. The proportional rate of 80c applied on cement from Martin's Creek to Philadelphia, Pa., only when carried from the latter point by water to Wilmington, N. C, and points south thereof, and was alleged to subject Phila- delphia to undue prejudice by reason of the fact that a similar rate from Martin's Creek to Jersey City, N. J., was unrestricted as to points of ultimate destination. Martin's Creek as a point of origin for cement is a part of what Is known as the Lehigh cement dis- trict. All shipments of cement via de- fendant's line from Martin's Creek to Jersey City and Philadelphia move through Trenton, N. J., making a total 560 PROPORTIONAL RATES, IV (e)— (j) distance of 114 miles to Jersey City, and 90 miles to Philadelphia. The rate to Jersey City was $1.10 per ton. At Jersey City the defendant has two pub- lic team tracks where carload freight is delivered. At Philadelphia it has about 60 team tracks distributed about the city within a track mileage of about 400 miles. HELD, there is nothing un- reasonable or unjust in the restriction of the proportional rate of 80c to ce- ment carried by water to Wilmington, N, C, and points south thereof, as neither the cement mills nor the des- tination points north of Wilmington have complained of the restriction upon this rate, and in the absence of any in- dication that the rates charged to coast points south of Philadelphia are unrea- sonable or otherwise unlawful an order ought not to be made which will require defendant to hand over at Philadel- phia to water carriers traffic which it now hauls to destination over its own rails. FURTHER HELD, cement is a commodity which under every consid- eration is entitled to a low rate, and giving due weight to the terminal ad- vantages offered by defendant at Phil- adelphia and other matters urged in its behalf the cement rate from Martin's Creek, Pa., to Philadelphia, Pa., is reduced to $1.10 per ton. Maritime Exchange v. P. R. R. Co., 21 L C. C. 81. (e) The idea of differing propor- tional rates for the same service depend- ing upon the origin or destination of the traffic did not originate with the Com- mission. It originated with and has been used by carriers to a greater or less extent, and is now and for a long time has been in effect on the lines of some of these defendants. The Com- mission is not insensible to the force of competitive conditions and is not dis- posed in these premises to insist upon the application of that theory in the face of the combined and harmonious judgment of complainants and defend- ants that it is undesirable and imprac- ticable to apply it to traffic originating in Atlantic seaboard territory or in terri- tory east of the Indiana-Illinois state line and moving to the Missouri River through Mississippi River crossings. In Re Advances in Rates by Carriers Operating Between the Mississippi and Missouri Rivers, 21 I. C. C. 546, 551. (f) A proportional rate, which is different when a carrier has the haul into a concentration point, can be es- tablished under the proper tariff author- ity connecting the inbound and out- bound movements. St. Paul Board of Trade v. M. St. P. & S. Ste. M. Ry. Co., 19. L C. C. 285, 288. (g) On carloads of salt shipped from Hartford and Mason City, W. Va., either over the B. & O. R. R. and the N. & W. Ry., via Kenova, W. Va., to Roan- oke, W. Va., or over the B. & O. R. R. and the C. & O. Ry. via Huntington, W. Va., to Lynchburg, Va., for points beyond in the South Atlantic country, the defendants increased the propor- tional rate from 8c to 12c from said points of origin to Roanoke and Lynch- burg. This advance in the rate mate- rially reduced the sales of salt produc- ers at said points of origin. HELD, that the proportional rate was unrea- sonable and that in the future the rate should not exceed 10c. Liverpool Salt & Coal Co. v. B. & O. R. R. Co., 18 L C. C. 51, 52. (h) Ex-lake rates from Buffalo lower than the locals afford no measure of the local rates. Jennison Co. v. G. N. Ry. Co., 18 L C. C. 113, 124. (i) Freight originating east of the Indiana-Illinois line was carried to Des Moines, la., over the Rock Island lines on a combination of rates, consisting of a joint proportional rate to the Mis- sissippi River added to an individual proportional made by the Rock Island lines from the river to Des Moines. Rates examined and, HELD, that the combination through rates were unrea- sonable on account of the unreasonable proportionals applied by the Rock Is- land lines from Rock Island, 111., to Des Moines. Reductions ordered. Ap- plication for joint through rates denied. Greater Des Moines Committee v. C. R. I. & P. Ry. Co., 17 L C. C. 54, 55. (j) Complainants were charged on carloads of grapes from Pewee Valley, Ky., to Pittsburg, Pa., 45c. Pewee Val- ley lies 17 miles east of Louisville on a branch line of defendant. The legally assessable rate was 42c, made up of the local rate of 12c per 100 lbs. to Louisville, plus a proportional rate of 30c applying from Louisville to Pitts- burg. The flat rate from Louisville to Pittsburg was 39c. The proportional from Louisville on shipments originat- ing beyond was 30c, this proportional being in a large measure forced upon the defendant by competitive conditions. PROPORTIONAL RATES, IV (k)— PULLMAN COMPANY oGl HELD, the Commission was not justi- fied in fixing this 30c proportional as the rate from Pewee Valley to Pitts- burg, but that the rate assessed was unreasonable; and that 39c would be a reasonable rate. Reparation awarded on the basis of 39c. Crutchfield & Woolfolk V. L. & N. R. R. Co., 17 I. C. C. 302. (k) Following the decision in Greater Des Moines Committee v. C. R. L & P. Ry. Co., 17 I. C. C. 54 and 57, the combination of class through rates from points east of the Indiana-Illinois state line to Ottumwa, la., are found to be unreasonable, arising from the proportional rates applying on the pro- portion of the haul west of the Mis- sissippi River, and lower proportional rates are prescribed. The prayer for the establishment of joint through rates to Ottumwa denied. Ottumwa Commer- cial Ass'n V. C. B. & Q. R. R. Co., 17 I. C. C. 413, 414. (1) Low proportional rates on through shipments do not justify unreasonable lo- cals. Board of Trade of Winston-Sa- lem V. N. & W. Ry. Co., 16 I. C. C. 12, 16. (m) Complainants shipped carloads of hay originating at various points west of the Missouri River and recon- signed from Kansas City to Peoria and LaSalle, 111., to Des Moines, la., and to Stillwater, Minn. Shortly before the shipments the proportional commodity rates from Kansas City to these points were canceled, and shortly after the shipments the proportional rates were restored. Complainants were charged the Class C rate in effect during the interval. HELD, following North Bros, v. C. M. & St. P. Ry. Co., 15 I. C. C. 70, complainants were entitled to repa- ration on the basis of the prior propor- tional rates and that such proportional rates should be maintained in the fu- ture. Kansas City Hay Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 100, 102. (n) After long maintenance of a pro- portional rate, which was advanced and subsequently reduced to the former basis, on shipments made under the higher rate, reparation should be award- ed. Sunderland Bros. Co. v. P. M. xl. R. Co., 16 I. C. C. 450. (o) On a shipment, July 18, 1907, of baled hay in carloads from Batesville, Kan., via Kansas City, to Clinton, la.. complainant was assessed the class rate of 17c on the haul from Kansas City to Clinton. For a long period prior to June 30, 1907, defendant's proportional commodity rates on carloads of hay originating at points beyond Kansas City were 12i^c from Kansas City to Mississippi River points, including Clinton. On that date these rates were canceled, but were restored September 9, 1907. HELD, the 17c rate was un- reasonable. Reparation awarded on the basis of 121/^0. Tyler Commission Co. V. C. M. & St. P. R. R. Co., 16 I. C. C. 490, 491. (p) The circumstances and condi- tions surrounding the transportation of flour through Chicago from Minneapolis to the seaboard for export or domestic consumption are substantially dissimilar to those surrounding the traffic through Chicago from Missouri River points, in that the lower proportional rates from Minneapolis to Chicago are the direct result of the competition of lake and rail routes. Bulte Milling Co. v C. & A. R. R. Co., 15 I. C. C. 351. (q) The Commission cannot hold that because the proportionals from Chicago to Cincinnati on traffic destined to southeastern territory are not higher than the proportionals from Indianap- olis by the same percentages as the Chicago mileage is in excess of the Indianapolis mileage, such an adjust- ment ipso facto gives undue preference and advantage to the Chicago shipper and subjects the Indianapolis shipper to unjust discrimination. Proportional rates from a more distant point must be less per mile to permit that place to compete In the common market. In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 504, 512. (r) Rail carriers' proportional rate from Carthage to New York on paper transported by water from latter point to coastwise points was higher than the rate applicable to paper carried to New York for export or for local de- livery at New York lighterage points. HELD, unreasonable and reparation awarded. St. Regis Paper Co. v. N. Y. C. & H. R. R. R. Co., Unrep. Op. 403. PULLMAN COMPANY. See Evidence, §1 (i); Passenger Fares and Facilities, §6 (m), §14 (dd); Procedure Before Commis- sion, §5 (c). 562 RATE VIA COMPETING LINE—REASONABLENESS OF RATES RATE VIA COMPETING LINE. See Differentials, §6 (c) ; Equaliza- tion of Rates, §1 (y), §2 (j), §4 (2); Evidence, §1 (d), §13 (1) (n), §20 (e), §28 (e), §47; Long and Short Haul, §6 (a); Reasonableness of Rates, §37 (g), (h). §63 (a), §84 (I); Reparation, §11, §16 (vvv), (xxx) ; Routing and IVIisrouting, §5; Spe- cial Contract, §2 (k); Through Routes and Joint Rates, §16 (c). RATE WARS. See Evidence, §14 (3) (b). REASONABLE RATES. See Advanced Rates, IV; Allowances, V: Alternative Rates; Any-Quan- tity Rates; Blanket Rates, II, IV, §12; Branch Lines, I; Class Rates; Classification, §5; Compress Com- panies and Charges, §2; Divisions, V; Export Rates and Facilities, V; Import Traffic, II; Lighterage, §2; IVIinimums, §7; Narrow Gauge Railroads, I; Passenger Fares and Facilities, §2; Proportional Rates, IV; Reasonableness of Rates; Re- consignment, III; Refrigeration, III; Released Rates, IV; Restricted Rates; Switch Tracks and Switch- ing, III; Terminal Facilities, §5; Through Routes and Joint Rates, REASONABLENESS OF RATES. I. CONTROL AND REGULATION. §1. In general. II. ELEMENTS DETERMINING REA- SONABLENESS. §2. In general. §3. Actions of state commis sions. §4. Attractiveness of traffic. §5. Capitalization. §6. Car-mile or train-mile rev- enue. §7. Changed circumstances. §8. Competition. (1) In general. (2) Railroad competition. (3) Rail-and-water. (4) Water competition. §9. Cost of service. §10. Distance. §11. Earnings. §12. Economical management. §1214. Equalizing of rates or markets. §13. Equipment furnished. §14. Investment relying on rate. §15. Investment of carrier. §16. Long-continued adjustment. §17. Manufactured product. §18. Mineral lands owned carriers. by III. §19. Natural advantages. §20. Need for revenues. §21. Obsolescence. §22. Origin of traffic. §23. Ownership or use of com modity. §24. Paper rate. §25. Past rates. §26. Permanent improvements. §27. Profits of shipper. §28. Relativity of the rate. §29. Reproduction value of road. §30. Revenues from facilities. §31. Special service. §32. Standard for carriers. §32/2. Subsequent reduction. §33. Surplus. §34. Terminal facilities. §35. Time of changing rate. §36. Ton-mile revenue. §37. Two-line haul. §38. Value of commodity. §39. Value of service. §40. Volume of traffic. §401/2- Wages. §41. Weight. REASONABLE RATES. §42. Adding-machine paper. §43. Agricultural implements. §44. Antimony ware, baskets, brushes, camphor, earthen- ware, gums, rugs, sago, tea and tapioca. §45. Asphaltum. §46. Automobile parts. §47. Beer. §48. Beer bottles. §49. Bottle caps. §50. Box shooks. §51. Brass and iron tubing. §52. Brick. §53. Broom corn. §54. Burlap bags. §55. Butter boxes. §56. Butter, eggs and poultry. §57. Canned goods. §58. Car wheels and axles. §59. Catsup. §60. Cement. §61. Chautauqua outfits. §62. Cheese. §63. Cheese boxes. §64. Cinders. §65. Clam shells. §66. Class rates. §67. Coal. §68. Coal-tar paving cement. §69. Coal-tar paving pitch. §70. Coke. REASONABLENESS OF RATES, §1 (a) — (b) 563 §71. Condensed milk. §126. Phosphate rock and acid §72. Corn shucks. phosphates. §73. Cotton. §127. Potatoes. §74. Cotton linters, cotton shod- §128. Pulp wood. dy lining. §129. Pyrite cinder. §75. Cotton seed and products. §130. Roofing material. §76. Cotton waste. §131. Rosin. §77. §78. Doors. Dried fruits. §132. §133. §134. Sacked corn. Safety fuse. Salt. §79. Egg-case material. §135. Sash windows. §80. Elm hub blocks. §136. Sawdust. §81. Fertilizer. §137. Second-hand steel rails and 182. Flaxseed and oats. logging equipment. §83. Flour. §138. Sheet-iron roofing. §84. Fruits and vegetables. §139. Shingles. §85. Fruit baskets. §140. Snapped corn. §86. Furniture. §141. Stamped ware. §87. Gas machinery. §142. Staves. §88. Go-carts. §143. Stucco. §89. Grain and hay. §144. Sugar. §90. §91. Grates. Gunpowder. §145. Sulphuric acid. §146. §147. Tanners' outfits. Tent pins. Ties. §92. Hay, straw and alfalfa. §148. §149. §93. Hickory spokes. Tin-plate scrap. §94. §95. Ice. Iron and steel bars, plates §150. Vehicles, wagons and bug- gies. Walnut veneer. and sheets and structural §151. steel. §152. Watermelons. §96. Iron, iron pyrites. §153. Wheat, corn and rye. §97. Iron roofing. §154. Wire. §98. Junk. §155. Wood pulp. §99. Kanite. §156. Wool. §100. Lead ore. §101. Leather and other materi- 1. CONTROL AND REGULATION. §102. als. Lime. §1. In General. §103. Live stock. See Act to Regulate Commerce, II §104. Locomotives. (d) (d) , (x); Commerce Court, §4 (a), ; Crimes, §1 (d) ; Undercharges, §105. Lumber and products. §2 (h). §106. Malt. (a) The Commission has no power to §107. §108. §109. Manila paper folders. Masurite. Merchandise. substitute a new rate for a just and reasonable rate on the ground that it §110. Metal furniture knobs. was a wise policy to do so, or that the §111. Milk. railroad had so conducted itself as §112. Mine-prop logs. to be estopped in the future from being §113. Mohair. entitled to receive a just and reason- §114. Motorcycles. able compensation for the service ren- §115. Mussel shells. dered. S. P. Co. V. I. C. C, 219 U. S. §116. Newspaper. 433, 443, 31 Sup. Ct. Rep. 288, 55 L. §117. Oil. ed. 283. §118. Packing-house products, meat and poultry. (b) It is not within the authority §119. Paper and stock. of the Commission to reduce rates not §120. Passenger car. merely against the weight of the evi- §121. Peas, beans and hominy. dence produced to sustain them, but §122. Petroleum. without anything substantial to warrant §123. Petroleum skimmings. the conclusion reached or the reasons §124. Plaster board. assigned therefor. L. & N. R. R. Co. §125. Poles, piling and posts. V. I. C. C, 195 Fed. 541, 564. 564 REASONABLENESS OF RATES, §1 (c)— (j) (c) The authority granted the Inter- state Commerce Commission under sec- tion 15 of the Act to prescribe reason- able rates does not confer absolute or arbitrary power to act on any con- siderations which the Commission may deem best for the public, the shipper, and the carrier. Its order must be based on transportation considerations. While it may give weight to all factors bear- ing either on the cost or. the value of the transportation services, it must disregard as well the demand of the shipper for protection from legitimate competition, domestic or foreign, for unlimited markets, or for the enforce- ment of equitable estoppels arising from a justifiable expectation that past rates will be maintained, and the demand of the carrier for the maximum rate under which the traffic will move freely. A. T. & S. F. Ry. Co. v. I. C. C, 190 Fed. 591, 594. (d) When the legislative power con- cerns the administrative affairs of the Commission, it may be delegated to an officer, or a board already existing or created for the purpose, and, when so delegated, the power may be as fully exercised as the legislature might have exercised it subject to any limita- tions imposed by the legislature itseii. Under this rule the power vested in the Interstate Commerce Commission to fix rates for the future is constitutional. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 122. (e) Congress did not in the Act and its amendments intend to vest admin- istrative authority in the courts in the matter of fixing rates, but on the con- trary committed the power to and imposed the duty to ascertain facts and determine what is reasonable in regard to rates and charges in view of such facts on the Commission. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 124. (f) What rates, involved in a com- plaint before the Commission, should be, whether they should remain as fixed by the railroad company or whether there should be other rates, is a mat- ter committed by the statute to the Commission to be settled by its opinion as to what is just and reasonable, and when so settled, its determination is binding, and is not subject to judicial review, unless it is made to appear that the Commission in making it has not merely erred in the exercise of its power, or has proceeded upon grounds and reasons which to a court might seem unsatisfactory, but has violated some distinct paramount right secured by tne Constitution or otherwise vested in the carrier, or in the public. L. & N. R. R. Co. V. I. C. C, 184 Fed. 118, 128. (g) The courts have no power to fix railroad rates, such power being vested in the Interstate Commerce Commis- sion, and where the Commission acting in its administrative capacity establishes certain rates the courts will not inter- fere unless some legal constitutional or natural right has been violated. Phila. & R. Ry. Co. V. I. C. C, 174 Fed. 687, 688. (h) To be just and reasonable, within the meaning of the constitutional guar- anty, the rates must be prescribed by the Interstate Commerce Commission with reasonable regard for the cost to the carrier, of the service rendered, and for the value of the property em- ployed therein; but this does not mean that regard is to be had only for the interests of the carrier, or that the rates must necessarily be such as to render its business profitable, for rea- sonable regard must also be had for the value of the service to the public. And where the cost to the carrier is not kept within a reasonable limit, or where for any reason its business cannot rea- sonably be so conducted, as to render it profitable, the misfortune must fall upon the carrier. M. K. & T. R. R. Co. V. I. C. C, 164 Fed. 645, 648. (i) Powers to determine and pre- scribe what are just and reasonable maximum rates to be charged in inter- state commerce is, in a limited way, con- ferred upon the Interstate Commerce Commission by existing statute laws; and as the Commission acts only as a legislative or administrative board, and not judicially, its determination or ac- tion does not, and cannot, preclude judicial inquiry into the justness and reasonableness of the rates, within the meaning of the constitutional guaranty, for that is a judicial question. M. K. & T. R. R. Co. V. I. C. C, 164 Fed. 645, 648. (j) Neither Congress, nor any legis- lative or administrative board acting by its authorization, can competently establish rates for the transportation of property in interstate commerce that REASONABLENESS OF RATES, §1 (k)— (u) 565 will not admit of the carrier earning such compensation for the services ren- dered as, under all the circumstances, is just and reasonable to it and to the public, for that would be depriving the carrier of its property, without due process of law, and would be taking its property for public use without just compensation, in violation of the 5th amendment to the Constitution. M. K. & T. R. R. Co. V. I. C. C, 164 Fed. 645, 647. (k) The Commission has power to determine the reasonableness of differ- ences in rates on various commodities. In Re Advances of Coal to I^ke Ports, 22 I. C. C. 604, 623. (1) It is doubtless true that in its control over the charges which railroads may make, the Commission exercises a power so extensive as to justify the broadest consideration of the economic and financial effects of its orders. By its decisions in the Abilene Cotton Oil case, 204 U. S. 426, and in the Illinois Central case, 215 U. S. 452, the Supreme Court has erected the Commission into what has been termed "an economic court," or to give it a more common- place definition, but one of stricter legal analogy, a select jury to pass upon the reasonableness and justness of railroad rates, rules and practices. Within broad lines of discretion the courts regard the conclusions of the Commission on ques- tions of fact as final. There is an ap- peal upon questions of law by the car- riers to the courts, but unless a con- stitutional guaranty is violated the order of the Commission is final, provided, of course, the Commission does not over- step the jurisdictional limits placed upon it by the statute. And as to the shipper this tribunal is his one and only resort against injustice. In Re Advances in Rates— Western Case, 20 I. C. C. 307, 317. (m) The Commission is not a court of law. Its function is to apply the man- datory and restrictive provisions of the Act to stated conditions of fact. It must regard the problems presented from as many standpoints as there are public interests involved. The making of a rate is in ultimate analysis, the exercise of a taxing power on com- merce. The reasonableness of a rate is to be determined by no mere mathe- matical calculation, though figures of cost and revenue must play a not in- considerable part in arriving at a final judgment. The unrestricted power to make rates, however, should not rest in the hands of those whose tendency must be by reason of human nature to exact to the limit the highest return that can be procured. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 315. (n) The Commission alone has the power to determine the reasonableness of a rate. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 317. (o) The Interstate Commerce Com- mission has exclusive jurisdiction over interstate rates, and is necessarily not bound to follow decisions of state' com- missions. Railroad Commission of Wis- consin V. C. & N. W. Ry. Co., 16 I. C. C. 85, 89. (p) The Commission has jurisdiction whenever the unreasonableness of the rate is in issue. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 5. (q) The jurisdiction of the Com- mission to establish reasonable rates is settled by the Abilene case, 206 U. S. 26. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 156. (r) The power of the Commission is ample to declare rates and rules set forth in a tariff schedule unjust or unreasonable .... and when a rate has been found unreasonable, and a reasonable rate has been established, to make reparation. Morse Produce Co. V. C. M. & St. P. Ry. Co., 15 I. C. C. 334, 337. (s) If, being authorized to impose for its services a reasonable rate, a rail- road in fact imposes one that is excess- ive, it is answerable to the Govern- ment. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 414. (t) If any government tribunal is to do justice between the railway and the public, its supervisions must be con- tinuous and not spasmodic. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 416. (u) Before the Commission makes an order for reparation or establishes a rate for the future it must have some opinion of its own upon the reasonable- ness of the rate involved. Holley Mat- thews Mfg. Co. V. Y. & M. V. R. R. Co., 15 I. C. C. 436, 437. 566 REASONABLENESS OF RATES, §1 (v)— §2 (h) (v) The Act creates a special admin- istrative tribunal clothed with power to hear and determine causes of action in- volving a right which has long existed at common law, viz., the right to re- cover for an unreasonable transportation charge. The Act did not abrogate this common law right, and by the express language of section 22 the remedies al- ready existing for its enforcement are saved. Where the special remedy is lost by a subsequent act ousting the jurisdiction of the Commission, this does not affect the right of claimant to pursue his common law remedy. Hussey v. C. R. I. & P. Ry. Co., 13 I. C. C. 366, 368. (w) Under the Hepburn amendment the Commission has jurisdiction over carriers engaged in the transportation wholly by railroad from one state to an- other, irrespective of "common control, management or arrangement," and the test of jurisdiction is not the arrange- ment under which the 'freight is deliv- ered, but rather the character of the transportation itself. Leonard v. K. C. S. Ry. Co., 13 I. C. C. 573, 578. II. ELEMENTS DETERMINING REA- SONABLENESS. See Evidence, III. §2. In General. (a) It does not follow as a matter of law that rates should be the same for the same distance over two different roads. I. C. C. v. U. P. R. R. Co., 222 U. S. 541, 549, 32 Sup. Ct. Rep. 108, 56 L. ed. 308. (b) A carrier under section 15 of the Act as amended June 29, 1906, is entitled to have a finding by the Com- mission that any particular charge is unreasonable and unjust before it is required to change such charge. I. C. C. V. Stickney, 215 U. S. 98, 105, 30 Sup. Ct. 6Q, 54 L. ed. 112. (c) Railroads are the private property of their owners and while from the pub- lic character of the work in which they are engaged the public has 'the power to prescribe rules for securing faithful and efficient service and equal- ity between shippers and communities, yet in no proper sense is the public a general manager. I. C. C. v. C. G. W. Ry. Co., 209 U. S. 108, 118, 28 Sup. Ct. 493, 52 L. ed. 705. (d) In order to sustain reasonable rates to intermediate points, unrea- sonable rates between more distant points cannot be sustained. N, & W. Ry. Co. V. U. S., 195 Fed. 953, 959. (e) Where the rates ordered by the Interstate Commerce Commission to be put in force by one carrier are unrea- sonable, the courts cannot say that be- cause other roads have not met the reduced rates and are losing traffic as a consequence, the order of the Commis- sion should be interfered with. N. & W. Ry. Co. V. U. S., 195 Fed. 953, 962. (f) A shipper is not prevented from invoking the provisions of the 5th amendment to the Constitution of the United States against confiscatory rates established by a carrier, on the theory that he is not obliged to ship under such rates and may utilize them or not as he sees fit. Hooker v. I. C. C, 188 Fed. 242, 248. (ff) Whether a coal mine can sell in a particular market usually depends upon its rate of freight. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 164. (g) Proper rate making secures to every shipper the performance of the transportation service for no more than a reasonable charge and requires of every shipper the payment for every service performed of what is reason- able. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 174. (gg) The Northern Pacific railroad, be- ing the only line having rails extending to South Tacoma, Wash., a point just out- side the Tacoma switching district, is en- titled, in the protection of its investment, to conduct traffic between South Tacoma and other points on its line on a preferred basis, and shippers who desire to use competing lines ought not to object to paying in addition to the Tacoma rate a reasonable charge to the Northern Pacific for its local haul between Tacoma and South Tacoma. Public Service Commis- sion, Wash., V. N. P. Ry. Co., 23 I. C. C. 256. (h) An unreasonable rate may not be permitted to stand merely because if reduced other rate readjustments might follow. Whatever the carriers might do in this respect the Commission's duty in each case is to inquire into the reasonableness and justness of the rate I under immediate consideration. New REASONABLEENESS OF RATES, §2 (hh)— (s) 567 Orleans Board of Trade v. L. & N. R. R. Co., 23 I. C. C. 429, 431. (hh) All rules, regulations and charges affecting ultimate cost of transportation must be made with a reasonable regard for the nature of the commodity trans- ported. Sunderland Bros. Co. v. St. L. & S. F. R. R. Co., 23 I. C. C. 259, 262. (i) State lines do not in themselves furnish any reasonable excuse for their use as basing points. Medford Traffic Bureau v. S. P. Co., 23 I. C. C. 701, 706. (ii) A carrier is not entitled to with- hold reasonable rates from a city on the ground that it is unable to agree upon divisions with connecting carriers. Mil- burn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (j) What is a reasonable freight rate cannot, strictly speaking, be the sub- ject of agreement between carriers and shippers, nor between carriers and the Commission. If in a given case, after hearing all that is to be said by the parties, the Commission is clearly of the conviction that the rates in effect are wrong, it is its duty to substitute for those rates others which it believes to be right. But it is not required to interfere unless clearly convinced that the schedule in effect is unlawful. Ar- lington Heights Fruit Exchange v. S. P. Co., 22 I. C. C. 149, 156. (jj) A just and reasonable rate must be one which respects alike the car- rier's deserts and the character of the traffic. The words "just and reason- able" imply the application of good faith and fairness, of common sense and a sense of justice to a given condition of facts. They are not fixed, unalter- able, mathematical terms. Their mean- ing implies the exercise of judgment. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 624. (k) The Commission is conscious that there is a considerable zone within which a rate may be held to be just and reasonable. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (1) A carrier may properly with- draw from a field if it is compelled to maintain rates lower than those which are just and reasonable to itself. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (m) The rate made by the carrier must be just and reasonable for the service which it gives and should have relation to the cost of that service and the character of the commodity trans- ported. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (n) What the public is primarily in- terested in is the charge for the trans- portation service rendered, irrespective of the divisions of the rate, and if the rate itself is reasonable and just the fact that it is unequally divided be- tween the participating lines is not a basis for reduction. There may be many reasons why a particular carrier would be willing to accept a very small proportion of a joint rate in order to secure business, and it is within its rights in bargaining with its connec- tions for tonnage so long as it does not undertake to haul one class of freight at rates so low as to thereby burden' other traffic. Florida Mercantile Agency V. Penn. R. R. Co., 21 I. C. C 85, 87. (o) The exaction of an unreasonable rate upon a considerable volume of traf- fic is a manifest injustice, and a com- plainant cannot be deprived of the rate to which it is entitled because all others similarly situated have not joined in its petition. Texas Brewing Co. v. A. T. & S. F. Ry. Co., 21 I. C. C. 171, 175. (p) A shipper is entitled to demand transportation at a reasonable rate, and that requirement cannot be denied because of the carrier's preference as to the form in which the traffic shall be carried. Auto Vehicle Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 286, 288. (q) As to the value of a rate com- parison, everything depends upon the cir- cumstances under which the rate is made and the transportation conducted. Ore- gon & Washington Lumber Mfrs. Ass'n V. S. P. Co., 21 I. C. C. 389, 392. (r) It is for the interest of the con- sumer and producer that the cost of carriage should be reasonable. Board of Trade of Chicago v. A. C. R. R. Co., 20 I. C. C. 504, 507. (s) The prohibition of the law is against charging differently for a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circum- stances and conditions. In Re Advances 568 REASONABLENESS OF RATES, §2 (t) — (dd) in Rates by Carriers Operating Between the Mississippi and Missouri Rivers, 21 I. C. C. 546, 552. (t) The standard of the law by which the validity of any rate as affected by its amount is determined is not more definite than that it must be reasonable and just. The test of reasonableness can be applied only by reference to and upon consideration of all pertinent facts, circumstances and conditions affecting the rate in effect at any particular time. In the nature of the case there can be no rule or process whereby the definite absolute maximum limit of reasonable- ness in the amount of a rate can be fixed with the certainty of a demonstra- tion. Anadarko Cotton Oil Co. v. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 49. (u) Carriers are presumed to act in good faith in initiating rates, and their rates cannot be condemned except upon investigation and full hearing. A rate reasonable in view of the circum- stances and conditions when it is es- tablished may in course of time become unreasonable by virtue of changed cir- cumstances and conditions. It is mani- festly impracticable for the carriers or the Commission in such a case to de- termine at what exact time in the gradual process of changes the rate becomes unreasonable. Anadarko Cot- ton Oil Co. V. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 50. (uu) There is no objection to package rates. National League of Commission Merchants v. A. C. L. R. R. Co., 20 L C. C. 132, 135. (v) The railroad rates of this coun- try have not been constructed, as a rule, upon any scientific basis, and this is especially true of the interstate rates. The traffic officials who have estab- lished these rates have generally done so without any special inquiry as to the total amount of revenue which ought to be produced, or as to the part of that burden which a particular com- modity ought to bear. This Commis- sion is called upon to deal with rates as they exist, and in so doing it ordi- narily considers them not from the rev- enue standpoint but rather from the commercial and trafiic standpoint. At the same time it is now the settled law that there is a limit below which the revenue of railroads cannot be re- duced by public authority, and if there were no such constitutional limitations it would, nevertheless, behoove every regulating body to permit the existence of such rate, when possible, as would yield just earnings to the railway. The question of revenue is therefore fundamental and ever present in all con- siderations as to the reasonableness of railroad rates, although it may not be, and seldom is, where single rates are presented, the controlling question. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 248. (w) Railroads should be kept in a high state of efficiency and rates should be sufficient to permit this. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 250. (x) The risk is less in a railroad than in most industrial operations. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 263. (y) A rate is a tax laid upon nearly every species of property and upon al- most every sort of activity. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 263. (z) It would be much better for Government to guarantee railroad bonds than to permit people to bear burden of unreasonable rates. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 253. (aa) A railroad is a monopoly; its rates are not made under the infiuence of competition. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 280. (bb) Every rate question is a public question. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 315. (cc) Railroad management should be most progressive. In Re Advances In Rates— Western Case, 20 I. C. C. 307, 317. (dd) The Commission must be con- scious in its consideration of rate ques- tions of their effect upon the policy of the railroads and ultimately upon the welfare of the state. This country cannot afford to have poor railroads, in- sufficiently equipped, unsubstantially built and carelessly operated. We need the best of service. Our railroad man- agement should be the most progressive. It should have wide latitude for ex- periment. It should have such encour- agement as would attract the imagina- tion of both the engineer and the in- REASONABLENESS OF RATES, §2 (ee)— (pp) 569 vestor. Nevertheless it is likewise to be remembered that the government has not undertaken to become the directing mind in railroad managment. The Com- mission is not the manager of the rail- roads. And no matter what the revenue they may receive there can be no con- trol placed by the Commission upon its expenditure, no improvements directed, no economy enforced. Advances in Rates— Western Case, 20 I. C. S. 307, 317. (ee) The legislature may not make rates so as to confiscate the carrier's property. The carrier on the other hand may not make rates which are unjust to those who by economic neces- sity are compelled to employ its services. Advances in Rates — Western Case, 20 I. C. C. 307, 347. (ff) It may not answer public needs to always measure rates by any fixed standard, but deviations from standard should be made primarily with regard to public advantage, rather than to the volume of freight which the carrier may secure. In Re Advances in Rates —Western Case, 20 I. C. C. 307, 355. (gg) Under regulation a reasonable rate is one which the shipper should pay in justice to the carrier which renders the service. In Re Advances in Rates— Western Case, 20 I. C. C. 307, 356. (hh) Once the comparative cost for various services is learned a sched- ule of rates may be made which will approach justice as between services. Supplement cost with scientific classi- fication of freight giving their due to all the various factors such as value, bulk and hazard — especially to value — adding return for use of plant, and force is given to every factor which the Supreme Court has said should be con- sidered in the fixing of rates for public utilities. Advances in Rates — W^estern Case, 20 I. C. C. 307, 362. (ii) It is the ultimate charge to which Commission's rule is directed. Lull Carriage Co. v. C. K. & S. Ry. Co., 19 I. C. C. 15, 16. (jj) Freight rates cannot be made solely with reference to the value of the article transported, or with refer- ence alone to the loss and damage claims arising from transportation. The carrier is entitled to take into consid- eration the occupancy of its equipment I and facilities, or in other terms, to charge for the service rendered. This charge for the service rendered may be tested relatively by means of the rate per ton mile, which is most helpful in connection with dense and heavy articles, or the value of the service and the reasonableness of the rate may be tested by means of the rate per car per mile, where articles of the same relative weight, density, direction and volume of movement are in question; but gen- erally the ultimate test with the carrier itself must be the return for the occu- pation and use of its equipment and facilities. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 47. (kk) The Commission hesitates to reduce a rate unless clearly excessive. Chappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 59. (11) Jobbers are shippers, and every shipper is entitled to reasonable rates. Billings Chamber of Commerce v. C. B. & Q. R. R. Co., 19 I. C. C. 71, 75. (mm) Compensation, through the ex- action of a reasonable rate, implies the payment of the cost of the service, interest on bonds, and then some divi- dend. Morgan Grain Co. v. A. C. L. R. R. Co., 19 I. C. C. 460, 470. (nn) The sole duty of a carrier is to provide a rate that is reasonable for the service performed. Ponchatoula Farmers' Ass'n v. I. C. R. R., 19 I. C. C. 513, 515. (oo) The American railroad rate has always been recognized as covering the full service which the carrier gives — in furnishing the car, a proper place at which to load it, the conveyance of that loaded car, and its terminal de- livery. The charge for these various services is not in America broken up into its component parts and a charge imposed for each, as in England. The rate, which it requires shall be pub- lished, is a complete rate which in- cludes not only the charge for haul, but the charge for the use of the ter- minals at both ends of the line. As- sociated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 L C. C. 310, 314. (pp) Where one ships from a certain point on the assurance of the carrier that a certain rate applied, a higher rate being in fact in force, it is imma- terial on the question of reparation 570 REASONABLENESS OF RATES, §2 (qq) — (yyy) whether the shipper would have se- cured the material and made the ship- ment from other points taking the lower rate had he not been misinformed, since the only question at issue is the rea- sonableness of the rate exacted. Wil- lamette Pulp & Paper Co. v. N. P. Ry. Co., 18 I. C. C. 388, 388. (qq) Rates should be so adjusted as to permit the widest possible competi- tion. Andy's Ridge Coal Co. v. So. Ry. Co., 18 I. C. C. 405, 410. (rr) It is a maximum of rate mak- ing that the rate should be such, if possible, as to move the traffic. Within certain limits a railroad is bound to protect its territory, and within those limits the Commission may consider the rates and their effects upon the movement of traffic. Receivers and Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 458. (ss) If rates are reasonable it makes no difference as to the motives of the carriers in fixing the same. Receivers & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 447. (sss) Where rates on a particular commodity bear a uniform relation to rates of a certain class, any inequalities in those rates as between different places are those peculiar to that class. Acme Cement Plaster Co. v, L. S. & M. S. Ry. Co., 17 I. C. C. 30, 35. (tt) Complainant's chief witness testi- fied that he had closed his eyes to every condition and all circumstances except those relating to the situation as between Fort Smith and Muskogee. The Commission's vision, however, must not be so restricted. The whole ad- justment from points of production to points of dest'nation must be viewed. Muskogee Traffic Bureau v. A. T. & S. F. Ry. Co., 17 I. C. C. 169, 172. (ttt) Where two rates are in effect, the shipper is justified in demanding the lower, and the carrier may not lawfully collect more. The Commission likewise is justified in holding the lower rate rea- sonable, or at least not unreasonably low, because it is the voluntary rate of the carrier. Boise Commercial Club v. Adams Express Co., 17 I. C. C. 115, 121. (uu) The reasonableness of a rate depends upon the conditions surround- ing traffic at the time it moves. And these factors are in their nature neither permanent nor fixed, but necessarily change with the general economic pan- orama. Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 318. (uuu) The law plainly provides for but one method of getting rid of the un- reasonableness or injustice of duly estab- lished rates, and that is by their con- demnation upon complaint and investi- gation. Old Dominion Copper & Smelt- ing Co. V. P. R. R. Co., 17 I. C. C. 309, 312. (vv) A complainant is not deprived of his. right to a reasonable rate by the fact that the defendants, through neg- lect of the rules of this Commission as to publication of their tariffs, had failed to establish that rate in legal form. Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, 592. (ww) Interstate rates must be rea- sonable in themselves. Railroad Com- mission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 91. (xx) In publishing a rate or a sched- ule of rates the carrier must act under section 1 of the Act requiring rates to be reasonable and just. If it establishes a rate which is excessive, such rate is not lawful when its reasonableness is subsequently questioned upon complaint filed. While it is the legal rate — the rate that must be paid by the shipper and collected by the carrier because it is the published rate — the mere publica- tion cannot make a rate lawful that Is unreasonable and excessive. No rate can be lawful in the sense of being immune from attack with respect to past or future shipments if it be excess- ive and unreasonable in amount. Ar- kansas Fuel Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 95, 97. (yy) The determination of a reason- able rate rests in the service performed, the risk involved, the value of the arti- cle and the degree of care required to be exercised. Davis v. West Jersey Express Co., 16 I. C. C. 214, 216. (yyy) While the Penn. R. R. Co. owns most of the stock and therefore controls the Pennsylvania Company, the opera- tions of the two are kept entirely distinct, and this particular case must be dis- posed of as though there were no com- mon interest in the management of the two. Kurtz V. Penn. Co., 16 I. C. C. 410. REASONABLENESS OF RATES, §2 (zz)— (111) 571 (zz) The Commission is justified in reducing a rate only when, upon consid- eration of all the facts and circum- stances, it is of opinion that the rate in question is unreasonable, unduly dis- criminatory, or otherwise in violation of the Act. Paola Refining Co. v. M. K. & T. Ry. Co., 15 I. C. C 29, 31. (aaa) Under the law carriers must initiate rates, and so long as they do not abuse the right conferred upon them by the statute, the Commission is not justified in penalizing them. Foster Lumber Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 56, 58. (bbb) It is well established that rates are not made with respect to distance alone. Differences in cost of service to the carrier, value of service to the shipper and questions of competition in the selling market should be taken into consideration. Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. 286, 295. (ccc) There is no absolute test of a reasonable rate, and the Government has supplied none. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 416. (ddd) The rate might be reduced, but it would be unjust to compel de- fendants to receive less than a reason- able charge for the transportation. Kent Co. V. N. Y. C. & H. R. R. R. Co., 15 I. C. C. 439, 441. (eee) A shipper is entitled to rates that are reasonable, not when tested by the fact that the carrier may earn larger revenues by hauling to a point that he does not desire to reach, but in accordance with the usual and ordi- nary tests, that are applied to rates. Chamber of Commerce of Milwaukee v. C. R. L & P. Ry. Co., 15 1. C. C. 460. (fff) The rate must be reasonable with respect to the service actually performed and not with respect to the service that could be performed and the revenue that could be earned if the shipper permitted the carrier to . select a market for him. Chamber of Com- merce of Milwaukee v. C. R. L & P. Ry. Co., 15 I. C. C. ^x60, 466. (ffff) A shipper is entitled to the transportation that he desires on rates that are reasonable, not when tested by the fact that the carrier may earn larger revenues by hauling his wares to a point that he does not desire to reach, but on rates that are reasonable in a'Ccordance with the usual and ordinary tests that are applied to rates. Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co., 15 L C. C. 460, 465. (ggg) The public interest is the first consideration in determining the rea- sonableness of a rate. Pacific Coast Lumber Co. v. N. P. Ry. Co., 14 I. C. C. 51, 58. (hhh) The Commission is authorized to condemn an existing rate and pre- scribe a reasonable maximum rate to be charged in the future, only when upon consideration of all the facts, circum- stances and conditions appearing, it is of the opinion that the rate complained of is unreasonable or unjust. Marshall Oil Co. V. C. & N. W. Ry. Co., 14 I. C. C. 210, 213. (iii) In the absence of actual and effective competition compelling the carriers to make rates upon traffic upon a competitive basis, the Commission is called upon to fix reasonable rates which shall be used as maxima and which the carriers may reduce to meet competition with other carriers and be- tween themselves as they may deem advisable. Okla. & Ark, Coal Traffic Bu. V. C. R. I. & P. Ry. Co., 14 I. C. C. 216, 221. (iiii) The Commission must base its opinion as to rates upon facts and cir- cumstances disclosed at the hearing, or otherwise entitled to consideration, of suflicient weight and force to appeal to the understanding and conscience of in- telligent men, and the experience of the Commission, as well as the numerous decisions of the court, have established precedence and standards by which the Commission should be guided and aided in reaching a just and reasonable con- clusion. National Petroleum Assn. v. Ann Arbor R. R. Co., 14 I. C. C. 272, 281. (jjj) The question of the reasonable- ness of a rate is always one of fact. Kansas City Ass'n v. M. P. Co., 14 I. C. C. 597, 600. (kkk) The rate attacked must be so out of proportion as to be unreason- able or must so discriminate as to be undue or must be unlawful for some other special reason. Corn Belt Meat Producers' Ass'n v. C. B. & Q. Ry. Co., 14 i. C. C. 376, 394. (Ill) Every shipper is entitled to reasonable rates. Corn Belt Meat Pro- 572 REASONABLENESS OF RATES, §2 (111)— §3 (h) ducers' Ass'n v. C. B. & Q. Ry. Co., 14 I. C. C. 376, 395. (Ill) The interstate rates of the coun- try, having grown up under the operation of various forces and conditions and not on any consistent theory, must be dealt with by the Commission as it finds them; the Commission has no authority to estab- lish general rate schedules; and unless, therefore, the general result of all rates is to yield an undue revenue to the car- rier, the Commission will not reduce a particular rate simply because it may think, in establishing the rate de novo as part of the general scheme, that it ought to be somewhat lower or higher in pro- portion to others; the rate attacked must be so out of proportion as to be un- reasonable, or must so discriminate as to be undue, or must be unlawful for some other special reason. Corn Belt Meat Producers' Assn. v. C. B. & Q. R R. Co., 14 I. C. C. 376, 394. (mmm) Rates cannot be established to shut out foreign products. Florida Fruit & Vegetable Shippers v. A. C. L. R. R. Co., 14 I. C. C. 476, 502. (nnn) Because articles are in the same class it does not follow that com- modity rates should be alike on both, when they are wholly dissimilar. Good- man Mfg. Co. V. P. B. & W. R. R. Co.. Unrep. Op. 362. §3. Actions of State Commissions. (a) The fact that the Texas state Commission has established such low rates on live stock from Texas points of origin to Fort Worth, Tex., that Fort Worth thereby gains an advantage as against the rates established from the same points of origin to Oklahoma City, Okla., by the Interstate Commerce Com- mission, which rates are higher than the low mileage scale prescribed by the Texas Commission, is not such undue discrimination nor such a situation with which the Interstate Commerce Com- mission can properly deal. In Re In- vestigation of Unreasonable Rates on Meats, 23 I. C. C. 656, 664. (b) In fixing interstate rates, the Commission cannot be governed by a state tariff unless in its opinion such tariff is just and reasonable. Investiga- tion of Alleged Unreasonable Rates on Meats, 22 I. C. C. 160, 164. (c) State rates afford standards of comparison of greater or less value, ac- cording as they appear reasonable, espe- cially so when acquiesced in by the car- riers; but when a state rate is under protest and being contested, and appears unreasonably low, it is not valuable as a comparison. Willman & Co. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 405. (d) While it has great respect for the official actions of state commissions, the Interstate Commerce Commission cannot withhold proper action in an interstate situation because it is antici- pated that some opposing or retaliatory action will be taken by a state body. In Re Advances in Rates by Carriers Oper- ating Between the Mississippi and Mis- souri Rivers, 21 I. C. C. 546, 552. (e) In attacking rates on cross-ties from southeastern (Georgia points to Jacksonville, Fla., attention was called to the fact that the interstate rates to Jacksonville are in excess of the Georgia intrastate rates on cross-ties originating in the same territory; but defendant showed it had several times protested to the Georgia Commission and sought permission to raise its intrastate rates to correspond with the interstate rates, but that Commission withheld its con- sent. HELD, while state rates are valu- able for comparative purposes in fix- ing a reasonable charge for a transpor- tation service, the assumption of com- plainant that the action of the defend- ant in maintaining higher transporta- tion rates on interstate than upon Intra- state traffic amounts to unlawful dis- crimination is not sound, for It is shown that the condition is one over which the carrier has no control. Bax- ter & Co V. G. S. & F. Ry. Co., 21 I. C. C. 647, 648. (f) There ought always to be har- mony between state and interstate rates, but the Commission has no right to respect any state policy which inter- feres with the application of a just and reasonable interstate rate. Cobb v. N. P. Ry. Co., 20 I. C. C. 100, 103. (g) .A rate established by a state commission affords little value for com- parative purposes. Waco Freight Bu- reau V. H. & T. C. R. R. Co., 19 I. C. C. 22, 26. (h) While upon general principles of comity the action of a state commission in fixing a rate on state traffic must be treated with all due respect, the Inter- state Commerce Commission has never REASONABLENESS OF RATES, §3 (i)~§4 (a) 57: felt itself bound to accept a state-made rate as a necessary measure of an inter- state rate. Saunders & Co. v. Southern Exp-ress Co., 18 I. C. C. 415, 421. (i) Low state rates cannot be neu- tralized by increases in interstate rates. Commercial Club of Omaha v. Anderson & Saline River Ry. Co., 18 I. C. C. 532, 536. (j) The Commission is not controlled by the rates established by state com- missions, unless they seem to be reason- able when applied to interstate move- ments. Bartles Oil Co. v. C. :\L & St. P. Ry. Co., 17 I. C. C. 146, 148. (k) The Commission will always give all due and respectful consideration to lecisions of state commissions. Railroad Commission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 89. (1) A low state concentration rate not being competitive with an interstate rate complained of, it cannot be said that the one compels the other. Railroad Commission of Wisconsin v. C. & N. W. Ry. Co., 16 L C. C. 85, 91. (m) A low state rate is no reason for exacting unreasonable interstate rates. Fort Dodge Commercial Club v. 1. C. R. R. Co., 16 L C. C. 572, 579. (n) The rates established by a state ::iommission cannot be taken as conclu- sive of the unreasonableness of higher interstate rates between the same points, since the rates voluntarily established by =L carrier are entitled to the same pre- sumption of reasonableness as that at- taching to rates prescribed by a state commission. Paola Refining Co. v. M. K. & T. Ry. Co., 15 L C. C. 29, 31, 32. (o) No greater sanctity can be pre- sumed in respect of rates established by I state railroad commission than those v^oluntarily established by carriers. Paola Refining Co. v. M. K. & T. Ry. Co., 15 [. C. C. 29. (p) The fact that a rate does not cross a state line is no reason why it may not be considered when an inter- state rate over the same line and for substantially the same distance is under examination. Board of Mayor and Alder- men V. V. & S. W. Ry. Co., 15 I. C. 3. 453, 459. (q) The reasonableness of a through rate cannot be determined by a compari- son with a local intrastate rate, plus an Independent interstate rate. Marble Falls Insulator Pin Co. v. H. & T. C. R. R. Co., 15 L C. C. 167, 169. (r) Although rates established by state authority may be valuable for the purpose of comparison, they are not con- clusive of the unreasonableness of a rel- atively higher interstate rate. Hafey v. St. L. & S. F. R. R. Co., 15 I. C. C. 245, 246. (s) In determining the reasonable- ness of an interstate rate, the decisions of the several state railroad commissions are worthy of consideration, but the Commission is not justified in accepting a comparison of lower intrastate rates prescribed by the state authorities with those applying on interstate traffic as conclusive of the unreasonableness of the interstate rates. Marshall Oil Co. v. C. & N. W. Ry. Co., 14 I. C. C. 210, 213. (t) There are many reasons why state and interstate rates should be es- tablished in harmony with one another. When the Commission is asked to ex- amine the reasonableness of an inter- state rate, similar rates established by state authority in that territory must have great influence, especially where they have been long acquiesced in by the carriers. Still, these state rates have no binding force upon the Com- mission. They are standards of compari- son of greater or less value, according as they appear to be just and reason- able. Corn Belt Meat Producers' Ass'n V. C. B. & Q. Ry. Co., H I. C. C. 376, 385. (u) While in determining interstate rates similar rates established by state authority must have great influence, especially where they have been long acquiesced in by the carriers; still such rates have no binding force upon the Commission, and where the Commission finds state rates unreasonable, a through interstate rate may be established by it higher than the sum of the state lo- cals. Corn Belt Meat Producers' Ass'n v. C. B. & Q. Ry. Co., 14 L C. C. 376, 385. §4. Attractiveness of Traffic. (a) There is no warrant in law for the maintenance of a rate for the pur- pose of restricting the movement of a certain class of traffic because it is unattractive to carriers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 L C. C. 370, 373. 574 REASONABLENESS OP RATES, §5 (a)— §6 (c) §5. Capitalization. See Evidence, §7; Express Compa- nies, §24; Interstate Commerce Commission, §7. (a) The market value of stock should be considered in fixing rates, but such rates cannot be allowed as- will guaran- tee the prices at which the stock was bought. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 260. (b) In determining the reasonable- ness of rates advanced by the B. & O. R. R. the Commission holds that this road should be allowed to earn such an amount that the sum remaining after the payment of fixed charges, in- cluding as a fixed charge the dividend upon the preferred stock, should be equivalent to between 7 and 8 per cent on the common stock. It should have sufficient earnings so that it may pay a dividend of 5 per cent upon its com- mon stock and carry 2^^ per cent to surplus, or pay 6 per cent upon its common stock and carry l^/^ per cent to surplus. This is upon the assump- tion that the capitalization does not exceed its actual value. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 289. (c) It is almost axiomatic that the investment in an American railroad is not represented by its capitalization. The Commission cannot accept capitali- zation as representing either investment or value. Advances in Rates — ^Western Case, 20 I. C. C. 307, 320. (d) There is no relation between capital and value and there is no rela- tion between stocks representing value and bonds representing value. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 335. (e) The fact that a carrier has issued watered stock cannot be urged on a question of reasonableness of rates to deny the right of present holders of said stock to receive reasonable dividends thereon. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 410. (f) Defendant issued to its old share holders new shares of stock at par, when such stock was worth from $140 to $264 per share in the market. HELD, this fact could not be urged upon a question of reasonableness of rates to deny the right of the present holders of such stock to receive reasonable divi- dends thereon. Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 409. (g) Neither can the capital stock of the Great Northern Ry. Co. be re- duced for the purpose of determining what its fair earnings should be by the amount of that stock which was orig- inally issued without money considera- tion. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 408. (h) The fact that a carrier's stock originally sold at less than par cannot be urged on a question of reasonable- ness of rates to deny the present hold- ers thereof fair dividends therefrom. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 411. (i) The Great Northern Railway Co. has in the past distributed its stock issues among its stockholders at par from time to time, although the market value of the stock was often much above par. Without expressing any opinion upon the legality or propriety of this practice, it is held that this fact, at this time, can have no bearing upon the earnings to which that company is entitled. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 409. §6. Car-mile or Train-mile Revenue. See Evidence, §8. (a) Car revenue is an important ele- ment in determining the reasonableness of a rate. Merchants & Mfrs.' Ass'n v. A. C. L. R. R. Co., 22 1. C. C. 467, 469. (b) The earnings per car mile and per train mile of a carrier constitute a much fairer basis for determining the reasonableness of a rate than the earn- ings per ton mile. On account of the volume of traffic, the heavy load per car and the regularity of movement, most of the freight which pays the car- rier the best is that which yields the lowest rate per ton mile. In Re Ad- vances on Coal to Lake Ports, 22 I. C C. 604, 620. (c) A just and reasonable rate must be one which respects alike the carriers' deserts and the character of the traffic. It cannot be a rate which takes from the carrier profit and thus favors the shipper at the carrier's expense, nor Is it one which compels the shipper to yield for the transportation given a sum disproportionate either to the serv- ice given by the carrier or to the service rendered to the shipper. In REASONABLENESS OF RATES, §6 (d)— §7 (a) 575 Re Advances on Coal to Lake Ports, 22 L C. C. 604, 624. (d) The rate per car per mile is en- titled to be considered as a relative test in rate making. National Hay Ass'n V. M. C. R. R. Co., 19 L C. C. 34, 47. (e) Car earnings of $44 on a 40-ton car for a one-line haul of 113 miles and for a 50-ton car of $55 seem excessive for a commodity like coal, which can move in almost any kind of a car, Rainey & Rodgers v. St. L. & S. F. R. R. Co., 18 L C. C. 88, 90. (f) It is difficult to see how earn- ings of from $24 to $48 per car for a haul of some 500 miles can be held an excessive return for the service ren- dered. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 359, 360. (g) The most satisfactory comparison to ascertain whether relative injustice is being done one section against an- other is through the earnings per car. Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., 16 L C. C. 106, 114. §7. Changed Circumstances. See Infra, §28 (q); Advanced Rates, §7; Evidence, §9; Facilities and Privileges, §15 (i). (a) In Burnham-Hanna-Munger Dry- goods Co. V. C. R. I. & P. Ry. Co., 14 I. C. C. 299, reductions were ordered in the portions of the through rates on the first five classes applying from the Mis- sissippi River to the Missouri River on shipments from Atlantic seaboard territory to Missouri River cities. The order of the Commission was enjoined but finally upheld by the United States Supreme Court in Interstate Commerce Commission v. C. R. I. & P. Ry., 218 U, S. 88. The rates prescribed were thereupon published, effective Oct. 26, 1910. The two-year limit of the Com- mission's order expired Nov. 10, 1910, and thereupon defendants filed increases in those rates restoring the rates which had been condemned. .The proposed in- creases were suspended, and are in- vestigated in this proceeding. In Docket No. 3684 (consolidated for hearing) it is alleged that prior to the establish- ment of the rates prescribed in the Burnham-Hanna-Munger case defendants had for many years applied the same rates between the Mississippi River and the Missouri River upon all traffic mov- ing under the class rates involved from all territory east and southeast of the Indiana-Illinois state line to the Atlantic coast; that rates from all of said points excepting Atlantic seaboard territory have since Aug. 25, 1908, been excessive and unreasonable, at least to the extent that they exceed the rates prescribeo by the Commission on trafiic from the Atlantic seaboard territory, and that rates be established from Mississippi River crossings on traffic originating in Cen- tral Freight Association, southeastern and Carolina territories, not in excess of those prescribed in the Burnham- Hanna-Munger case on shipments from Atlantic seaboard territory. Reparaivjii is prayed for on shipments moving subse- quent to Aug. 25, 1908. It appeared that competition forced the making of the same rates from all of the Missis- sippi River crossings to the Missouri River cities, except Sioux City, where the rates apply only through the upper Mississippi River crossings. It appeared that the combination of rates from At- lantic seaboard territories to the Missis- sippi River plus the rates prescribed in the Burnham-Hanna-Munger case make lower through rates than the present combinations from some inter- mediate points in Central Freight Asso- ciation territory. It is the Commis- sion's view expressed in former opinions that higher differentials applying be- tween the Mississippi and Missouri riv- ers might be maintained from Indianap- olis than from the Atlantic seaboard and the reduction in the Atlantic sea- board rate was therefore greater than would have been prescribed to apply to all of the territory east of the Indi- ana-Illinois state line. Since its former decision the Commission has carefully investigated the question of whether or not there was justification for general advances in freight rates. Taking all of the records now available the Commis- sion finds that defendants have to a certain extent sustained the burden of proof cast upon them by the statute with regard to the advances in these rates on traffic from Atlantic seaboard territory, because it now has the ques- tion of those rates before it upon the traffic from all of the territory east of the Indiana-Illinois state line. HELD, that defendants' through rates upon the first five classes to the Missouri River cities, Kansas City to Sioux City, both inclusive, and to points taking the same rates, from points of origin east of the 576 REASONABLENESS OF RATES, §7 (b)— §8 (1) (bb) Indiana-Illinois state line, commonly known in traffic circles and described in tariffs as trunk line territory, Central Freight Association territory, southeast- ern territory and Carolina territory, and exclusive of points in Atlantic seaboard territory, applying through the Missis- sippi River crossings, St. Louis to East Dubuque, both inclusive, are unjust and unreasonable, because those portions of the through rates which apply from those Mississippi River crossings to the Missouri River cities as applied to through shipments are unreasonable. In both cases defendants should be required to establish and maintain for a period of not less than two years as parts of the through rates applying from the Mississippi River crossings mentioned, to the Missouri River cities mentioned, and to points taking the same rates, except that to Sioux City and to points taking the same rates they shall apply from upper Mississippi River crossings. East Burlington to East Dubuque, in- clusive, rates from all the said points of origin, east of the Indiana-Illinois state line, including Atlantic seaboard territory, which shall not exceed the fol- lowing: Class 1 2 3 4 5 Rate 55 41 32 24 20 That on the lettered classes correspond- ing reduction should be made as follows: Class A B C D E Rate 22 18 15 12 10 That considering the Commission is pre- scribing what may well be considered a new rate adjustment for a large terri- tory and an enormous volume of traffic, reparation should be denied. In Re Ad- vances in Rates by Carriers Operating Between the Mississippi and Missouri Rivers, 21 L C. C. 546, 555, 557. (b) A rate reasonable as of to-day may have been unreasonable in the past or may become unreasonable in the fu- ture. It is not necessarily required by the law that the rate found to be un- reasonable at the time of complaint shall be prescribed for the future, or that a rate for the future must as a pre- requisite to reparation be prescribed. Steinfeld & Co. v. I. C. R. R. Co., 20 I. C. C. 12, 14. (c) A rate may be reasonable when established but may become unreason- able by virtue of changed circumstances. Anadarko Cotton Oil Co. v. A. T. & S. F. Ry. Co., 20 L C. C. 43, 50; Riverside Mills V. G. R. R., 20 I. C. C. 423, 425. (d) Rates reasonable at the present time may within the period of two years become very unreasonable by reason of changes in circumstances and con- ditions, economic transportation or the like. It should be just as apparent that a rate which was unreasonable two years or more ago may become reason- able by reason of such changes in con- ditions. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 37. (e) Where present transportation conditions are likejy to change, the Com- mission may take this fact into con- sideration in adjusting rates. Florida Fruit & Vegetable Shippers' Protective Ass'n V. A. C. L. R. R. Co., 14 L C. C. 476, 488. §8. Competition. See Competition. §8. (1) In General. (a) Competition of controlling force cannot be ignored by the Commission In determining whether an advantage In rate at the competitive points is undue or is one not chargeable to the carriers defendant because involuntarily made. Sioux City Terminal Elevator Co. v. C. M. & St. P. Ry. Co., 23 I. C. C. 98, 107. (b) In establishing reasonable rates distance is a factor always to be consid- ered, and is sometimes controlling, but established commercial conditions, com- petition of water carriers and competi- tion between railroads with termini at different points may make it imprac- ticable to consider a situation from the standpoint of distance alone. Indian- apolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 205. (bb) Complainant attacked the rates on salt from the Kansas salt field, of which Hutchinson is the center, of 13^/^0 to St. Louis as a typical point and of 15c from this field to Keokuk and Fort Madison, Mississippi River points north of St. Louis, and of 18c to Burling- ton, Davenport, Clinton and Dubuque, also Mississippi River points north of St. Louis, as unreasonable per se and unjustly discriminatory in favor of the Michigan salt field, from which, taking Detroit as a typical point, the rates to St. Louis were ll^/^c on package salt with a 10c proportional on salt destined beyond, and 9c upon bulk salt. The Michigan field covers the entire lower peninsula of the state of Michigan. As REASONABLENESS OF RATES, §S (1) (bb) 577 to these competing fields the debatable ground lay between the Mississippi and the Missouri rivers. The cost of produc- ing salt in the two fields was substan- tially the same, as was also the quality. Whether, therefore, this debatable terri- tory should be supplied from Kansas or Michigan depended mainly upon the rate of transportation. Salt loads heavily, is not liable to loss or damage in transit, can be handled at the convenience of the carrier, affords a uniform business, and is therefore desirable from a trans- portation standpoint. The 13l^c rate from the Kansas field to St. Louis yielded only 5 mills per ton mile. The salt rate established by the Missouri and Kansas state commissions for a distance of 400 miles was 15i^c. The distance from Hutchinson to Dubuque is 610 miles as compared with 500 miles to St. Louis. The Michigan salt producing points in question are located mainly upon water. The distance from a typical Michigan point to Milwaukee is 100 miles, and to Chicago 150 miles. About eighty or ninety per cent of the salt from the Mich- igan field moved by water and took a rate of 2 l-3c to Milwaukee and Chicago. The Wabash R. R. transported salt from Detroit to St. Louis and from Kansas City to St. Louis, but does not extend to the Kansas salt field. It was obliged to meet this 2 l-3c rate for the haul from Detroit to Chicago. Competition on traf- fic from Chicago to St. Louis, 278 miles, is very keen, and the rate on salt to East St. Louis from Chicago was for a long time 6 2-3c per 100 lbs., and at the time of the hearing was 9c beyond in pack- age and in bulk. It was, therefore, im- possible for the Wabash R. R. to main- tain a rate lower than 11 l-3c from Chi- cago and Detroit to St. Louis. While the rate from Detroit to St. Louis was less than from Hutchinson, although the dis- tance is the same, the general level of rates in the territory east of St. Louis is much lower than that in the territory of the west; the first-class rate from Hutch- inson to St. Louis is $1,191/4, while that from Detroit is 4Gc. Defendant Wabash R. R. could only engage in the transpor- tations from the Kansas fields in con- nection with some line operating to Kan- sas City from such field. It could reduce the rate from the Kansas field to St. Louis only by sacrificing its own revenue from Kansas City to St. Louis. The rate in effect to the Missouri River from the Kansas field was 10c. and the Wabash R. R., in order to make a rate of ll^c to St. Louis, would be compelled to accept its haul from Kansas City to St. Louis at a compensation of l^/^c per 100 lbs. The distance from Kansas City and Chicago to St. Louis, respectively, is the same. To bring about the result demanded the Wabash R. R. would be compelled to name a rate from Kansas City, 7 2-3c lower than that from Chicago, although upon every consideration the Chicago rate should be the lower. From Hutchin- son to Dubuque, the most northerly of the Mississippi crossings in controversy, is 610 miles, while the distance from Chi- cago to that crossing is but 172 miles. The rates from the Kansas fields in ques- tion increased from 13i^c at St. Louis to 18i/4c at Dubuque, while those from the Michigan fields were 13i^c to all Mississippi River crossings north of St. Louis. Under the adjustment attacked the rates from Michigan in all cases were less from the Mississippi River than from Kansas. Soon after crossing that river a point is reached where the rate from the two fields became the same. And this relation was continued west, producing a blanket of considerable ex- tent, beyond which the rate was in favor of Kansas. HELD, that the 13i^c rate from the Kansas field to St. Louis and the rates complained of to the upper Miss- issippi River crossings from the Kansas fields were not unreasonable per se; that the disparity in rates complained of be- tween the Michigan and Kansas fields was not improper; and that the Wabash R. R., in view of the water competition met with in shipments from Detroit, was not obliged to reduce the small compen- sation derived by it for the haul from Kan- sas City to St. Louis in order to overcome the disadvantage suffered by the Kan- sas field; that the 9c rate upon bulk salt from Detroit to St. Louis, not being forced by legitimate competition, resulted in un- due discrimination and the Wabash R. R. should either join in establishing a corre- sponding rate from the Kansas field or should advance its rate from Detroit; and that in view of the longer distances from Hutchinson to the more northerly of the Mississippi River crossings as compared with the distances from De- troit to these crossings, the higher rates "rom the Kansas fields were not unjustly iiscriminatory against it. R. R. Commis- sioners of Kansas v. A. T. & S. F. Ry. Co., 22 I. C. C. 407. 578 REASONABLENESS OF RATES, §8 (1) (c)— (cc) (c) A competitive rate to one point Is not a measure of the rate to a non- competitive point. Georgetown Ry. & Light Co. V. N. & W. Ry. Co., 22 I. C. C. 144. (cc) Complainant attacked the rates from New York, Philadelphia and Balti- more to Bluefield, W. Va., as unreason- able per se, and those from Cincinnati, Columbus, Chicago and Pittsburgh to Bluefield as unreasonable per se, and also in violation of the fourth section. Defendant N. & W. Ry. Co. runs from Cincinnati and Columbus to Portsmouth, O., where it unites and proceeds easterly, crossing the Ohio River at Kenova and extending through Roanoke and Lynch- burg to Norfolk. The distance from Columbus or Cincinnati to Norfolk is about 700 miles. Bluefield is upon the main line, 205 miles east of Kenova, and 105 miles west of Roanoke. Rates from Cincinnati, Columbus, Chicago and Pitts- burgh to Roanoke and all i>oints upon the N. & W. Ry. east of Roanoke were the same. Selecting the first-class rates as typical, the relative rates from the points of origin in question to Bluefield and Roanoke were as follows: From Colum- bus to Bluefield and Roanoke, 66i/^c and 54^c, respectively; from Cincinnati to these points, 68c and 62c, respectively; from Chicago, 84c and 72c; from Pitts- burgh, 86^^c and 54l^c. The rates on grain and grain products from Columbus were, to Bluefield, nV2C and 18c, respectively; to Roanoke, 12i/^c and 13c, respectively; from Cincinnati to Bluefield, 19c and 19V^c, respectively; from Cincinnati to Roanoke, 14c and 14 ^/^c; from Chicago to Bluefield they were 18c and 18.7c, respect- ively; and from Chicago to Roanoke, 13c and 13.7c, respectively. Although Blue- field is 105 miles nearer these points of origin, and the traflic in all cases passed through Bluefield, the rates to Bluefield were uniformly higher than to Roanoke. Defendant N. & W. Ry. attempted to jus- tify the higher rate to Bluefield by show- ing that the rate to Roanoke was com- pelled by competitive conditions, and was lower than would otherwise be reason- able; and the higher rate to Bluefield was reasonable per se. The rates from the points of origin in question to Roanoke were influenced by the active competition between carriers hauling traflic to seaboard points. Richmond, Lynchburg, Norfolk and other Virginia cities wholesaled into surrounding terri- tory in competition with Baltimore. The B. & O. R. R. serving Baltimore as a jobbing center was in competition with the C. & O. R. R. serving these Virginia cities as competing jobbing centers. As a result of this competition the rates to these Virginia cities were lower than they might otherwise have been. De- fendant N. & W. Ry. Co. upon entering into the field was obliged to meet the rates in effect to these Virginia cities from the points of origin in question. Prior to its acquisition by the N. & W. Ry. Co., the Shenandoah Valley R. R., extending from Hagerstown to Roanoke, formed a connection with the C. & O. R. R., and named a rate to Roanoke which would enable that city to compete as a jobbing center with Baltimore. When, in 1890, the N. & W. Ry. obtained control of the Shenandoah Valley R. R., and thereby eliminated all competition by rail at Roanoke, it did not advance the rates to Roanoke, but left them the same as those established by competition from the points of origin in question to the Virginia cities east of Roanoke. The N. & W. Ry. continued to maintain the low rates to Roanoke for the further reason that it was to its interest, since it exclusively served that city, to build it up as a jobbing center in competition with Lynchburg, which latter city it served only in rivalry with the C. & O. R. R. In 1909 the N. & W. Ry. met com- petition at Roanoke with the Virginian Ry. running from Deepwater to Norfolk, and making a connection with the C. & O. R. R. at Deepwater. On the question as to whether the competitive influences at Roanoke reduced the rates to that point below what would otherwise be rea- sonable, it appeared that the distance from Kenova to Roanoke was 310 miles; that the class rates from Kenova to Roanoke for the flrst six classes, respect- ively, were 54i^c, 47c, SBVzC, 24c, 20c and 16c, and the rates on grain and grain products, 12i^c and 13c, respectively. The same rates were in effect from Columbus to Roanoke. If it should be held proper to construct these rates by combination upon the Ohio River, and if the mileage scale of the N. & W. Ry., which was lower than that in effect upon most southern lines, should be applied, the rates mentioned to Roanoke were lower than would otherwise be proper. It appeared, however, that taking into view the immense tonnage of the N. & W. Ry., the average miles operated, the freight density, passenger density and REASONABLENESS OF RATES, §8 (1) (cc) 579 other traffic and financial elements, the N. & W. Ry. was fully as strong as the C. & O. R. R. or the B. & O. R. R., stronger than the average of railroads in the middle west, and was very much above the railroads in West Virginia, Virginia and the Carolinas. The heavy tonnage per mile and the satisfactory earnings of the N. & W. Ry. as compared with the other groups of railroads men- tioned were computed, not upon its main line mileage, but upon the entire mileage of the whole system. The N. & W. Ry. largely originated the enormous tonnage which it handled, and while its course was in a large part through southern territory, the road itself as a system was rather to be compared with those in Trunk Line and Central Freight Associa- tion territory. That part of its business moving under class rates, however, was rather small as compared with other roads which made a traffic and financial showing comparable with the N. & W. Ry., since a large part of its traffic was coal and coke and other low-grade freight. The distance from Columbus to Roanoke is 449 miles, and from Cincin- nati, 456 miles. The rates from Colum- bus and Cincinnati, respectively, to Roanoke were 54i/^c and 62c. Ftom Chi- cago to Kenova, the distance is 431 miles, the first-class rate, 45c, and the grain rate, 10c, the class rates being estab- lished upon the regular Central Freight Association territory mileage scale. From New York to Pittsburgh, 440 miles, the first-class rate was 45c, and the rate on grain and grain products, 15c. The rates mentioned from Cincinnati to Roanoke were therefore distinctly too high when tested by those prevailing in territory where operating conditions, earnings, etc., were substantially the same as upon the N. & W. Ry. The dis- tance from Chicago to Roanoke is 741 miles. The first-class rate from Chicago to Cincinnati was 40c, the grain rate, 10c, In this opinion the Commission found the rates attacked 'from both Cin- cinnati and Columbus to Bluefield un- reasonable and prescribed lower rates. With respect to the first-class rate from Chicago to Bluefield, which was 84c, it appeared that this rate was about 10c less than the contbination rate from Chi- cago to Bluefield made up of the 40c charge from Chicago to Cincinnati plus the 541/^c rate from Cincinnati to Blue- field prescribed in the opinion as a fu- ture rate. It further appeared that the first-class rate attacked from Chicago to Bluefield, 84c, was a blanket rate cover- ing some five or six hundred stations on the N. & W. Ry. between Kenova and Roanoke, and that this rate was higher than that to the Virginia cities by an arbitrary of 12c. The first-class rates from New York, Philadelphia and Balti- more to Bluefield were 99i/^c, 91^/^0 and 861/^c, respectively, and from these cities to Roanoke were 68c, 63c and 58c, re- spectively. The rates from New York to Bluefield exceeded those from New York to Roanoke by differentials of 31^c, 25c, 14l^c, 14c, 12c and 7c for the first six classes, respectively, and the differentials in case of Philadelphia and Baltimore were substantially the same, whereas in the rates from Hagerstown to Bluefield and Roanoke, the differentials of Blue- field over Roanoke were only 13V^c, 9c, 6^^c, 8c, 7c and 6c for the first six classes respectively. The rates from Hagers- town to Roanoke and Bluefield were not influenced by any competitive conditions. For the distance from Hagerstown to Roanoke, 240 miles, the rates in effect were normal. Defendant N. & W. Ry. was unable to explain why the first-class rate from New York to Bluefield ex- ceeded that to Roanoke by Sli/^c, whereas, in case of Hagerstown, the difference was but 131/^c. The distances from New York, Philadelphia and Baltimore to Bluefield were, respectively, 613, 523 and 408 miles. HELD, that competitive conditions ex- isted at Roanoke which did not obtain at Bluefield, and which compelled the maintenance to Roanoke of the rates at- tacked from the western points of origin; that the rates in effect from both Cin- cinnati and Columbus to Roanoke were lower than they might reasonably be, were it not for the competition which induced them; that the class rates in effect, beginning with 72c, first class, and the grain and grain-product rates, 13c and 13.7c, respectively, from Chicago to Roanoke were lower than they might properly be, and that the same conclu- sion must follow as to the rates from Pittsburgh on traffic moving to Roanoke via Columbus and Kenova; that the rates from both Cincinnati and Columbus to Bluefield were unjust and unreasonable and should not exceed 54i/^c, 47c, 35i/^c, 24c, 20c and 16c, for the first six classes respectively, and the rates on grain and grain products, respectively, should not exceed 12^ c and 13c; that the first-class rate from Chicago to Bluefield, 84c, was 583 REASONABLENESS OF RATES, §8 (1) (d) — (p) not excessive; that the class rates from Pittsburgh to Bluefield were excessive and should not exceed 79c, 68c, 53c, 35c, 29c and 22c for the first six classes respect- ively; and that the rates upon iron ar- ticles, classified as fourth, fifth and sixth class, of 31c, 26c and 21c, respectively, from Pittsburgh to Bluefield were not ex- cessive; that higher rates might be charged at intermediate points than to Roanoke and points east, from Pittsburgh, Columbus, Cincinnati, Chicago and kin- dred points, so long as the present rates from those points to Roanoke and points beyond did not exceed those in effect at the time of the hearing, and provided that no higher rates were charged at Bluefield and points to the west than those found to be reasonable from Cin- cinnati, Columbus and Pittsburgh; and that the rates attacked from New York, Philadelphia and Baltimore, via Hagers- town, to Bluefield, were unjust and un- reasonable, and should not exceed 81i/^c, 76^c and Tl^/^c, respectively, for first class, the other classes to be reduced in proportion. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519. (d) The fact that rail carriers are able to participate under their estab- lished rates in competition with a line of steamers, tends to prove that the rail rates are reasonable. Florida Mer- cantile Agency v. P. R. R. Co., 21 I. C. C. 85. (dd) A less-distant junction point served by an additional carrier seems entitled to a lower rate. Gamble-Robin- son Commission Co. v. St. L. & S. F. R. R. Co., 19 I. C. C. 114, 115. (e) Competition is an important ele- ment in determining reasonableness of rate. Corporation Commission of N. C. V. N. & W. Ry. Co., 19 I. C. C. 303, 309. (f) The reasonableness of a rate from a non-competitive point is not measured by a rate from competitive points. Florida Cotton Oil Co. v. C. of G. Ry. Co., 19 I. C. C. 336, 339. (g) Rates to local points must be de- termined independent of comparisons with competitive points. Rainey & Rog- ers V. St. L. & S. F. R. R. Co., 18 I. C. C. 88, 89. (h) Competition has a more or less definite relation to the rate that carrier may reasonably demand. Memphis Cot- ton Oil Co. V. I. C. R. R. Co., 17 I. C. C. 313, 318. (i) While a carrier may establish a lower rate to meet competitive condi- tions and the Commission takes into account such conditions in passing upon the reasonableness of the rate adjust- ment, it does not follow that in a par- ticular instance the Commission will condemn an advance of a rate which was formerly maintained to meet com- petition between different producing points. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 558. (j) A carrier may, for competitive reasons, voluntarily do things which it may not lawfully be compelled to do. Swift & Co. V. C. & A. R. R. Co., 16 I. C. C. 426, 428. (k) There is no principle of law that requires a carrier to be content with half the traffic or that forbids it to adjust its rates so as to fight for the whole the moment it feels the effect of its competi- tors' rates. Bulte Milling Co. v. C. & A. R. R. Co., 15 I. C. C. 351, 359. (1) A carrier may voluntarily make, under the force of controlling competi- tion, rates which it might not be re- quired to make. Indianapolis Freight Bureau v. P. R. R. Co., 15 I. C. C. 507, 576. (m) While the law permits carriers to make and maintain a low rate under stress of competition, there is no law re- quiring the carriers to make such a rate. Oregon & Washington Lumber Mfrs. Ass'n V. U. P. R. R. Co., 14 I. C. C. 1, 14. (n) The rate to Nashville is forced by competitive conditions not existing at Gallatin, and cannot be taken as stand- ard by which to measure the Gallatin rate. Flint & Walling Mfg. Co. v. G. R. & I. Ry. Co., 14 L C. C. 520. (o) Where,, owing to competition, a rate is unnecessarily low it affords no basis for comparison. Flint & Walling Mfg. Co. V. G. R. & L Ry. Co., 14 I. C. C. 520. (p) A carrier may in its own interest, if it so desires, carry for a longer dis- tance over its own line than would be necessary if carried between the same points over the line of its competitors, in order to obtain a portion of the compet- itive business upon terms that will af- REASONABLENESS OF RATES, §8 (2) (a)— §8 (3) (c) 581 ford some profit. It does not necessa- rily follow, however, that a carrier not competing for trafl!ic in this way thereby subjects itself to an order compelling it to do so. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347. §8. (2) Railroad Competition. (a) Carriers in fixing their own rates may take into account competition with other carriers, provided only that the competition is genuine and not a pre- tense. I. C. C. V. C. G. W. Ry. Co., 209 U. S. 108, 119. 28 Sup. Ct. 493, 52 L. ed. 705. (b) Most of the great systems in Of- ficial Classification territory have ex- isted in substantially their present form for the past twenty-five years. Orig- inally there was the most active com- petition in the rate of transportation by rail, and the tariffs in Oflicial Classi- fication territory are largely the product of that competition. There is a strong presumption that rates so arrived at are reasonable rates. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 259. (c) Rate wars were unreasonable and their results cannot be used as measure of reasonableness. Morgan Grain Co. v. A. C. L. R. R. Co., 19 I. C. C. 460, 463. (d) Between Feb. 1, 1909, and June 2, 1909, complainant shipped less-than- carloads of harness leather, in boxes, rolls and bundles, from San Francisco and other California points to Denver, and was charged $1.25 per 100 lbs. For a number of years prior to Jan. 1, 1909, the rate was $1.05, and on June 6, 1909, it was reduced from $1.25 to $1.15. De- fendant showed that the reduction was made in order to enable producers In Kentucky, Michigan, Ohio and other states to compete. The $1.25 rate at- tacked was as low or lower than rates generally on the same traffic for less distances and over routes involving greater transportation difficulties. HELD, the rate attacked having been decreased in order to meet competition, it was not shown to be unreasonable. Wilson Sad- dlery Co. V. C. & S. Ry. Co., 18 I. C. C 220. 221. (e) Existence of competition at a farther distant point does not excuse the unreasonableness per se of a higher rate. Southern Timber & Land Co. v. S. P. Co., 18 I. C. C. 232. (f) On a carload of empty beer kegs from Frontenac, Kan., to Chicago, a rate of 17i^c was imposed. Prior to shipment a rate of lie had been in effect, caused by severe competition of carriers and markets. At the time of the movement rates upon empty kegs had been generally advanced, and no competitive reason existed requiring a rate lower than 17i^c. HELD, the rate charged was not unreasonable. Com- plaint dismissed. Schoenliofen Brev-int^ Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 329. (g) A carrier may voluntarily make, mder the force of controlling competi- tion, rates which it might not be required .0 make. Indianapolis Freight Bureau v. P. R. R. Co., 15 I. C. C. 567, 576. §8. (3) Rail-and-Water Competition. (a) The rates upon grain and grain products between points of production in the West and the Atlantic seaboard are low in proportion to other commodities. A rate of 16c per 100 lbs. from Chicago to New York yields a ton-mile revenue of about 3.5 mills. These low rates are due partly to water competition and partly to severe rail competition in th3 past, which has produced a low level of rates. In Re Advances in Rates for the Transportation of Flaxseed in Carloads, 23 I. C. C. 272, 275. (b) Where at one point water and rail competition exists to an • extent not present at another point the conditions are so dissimilar that the rates to the former are not necessarily a measure of a reasonable rate to the latter. George- town Railway & Light Co. v. N & W. Ry. Co., 22 I. C. C. 144. (c) Complainant alleged that the rate for the transportation of coal from the Pocahontas district, in West Vir- ginia, to Georgetown, S. C. ($2.40), as against the rate to points further frora the Pocahontas district (to Charlcsion, S. C, $2.15; to Port Royal, S. C, and to Savannah, Ga., $2.40, and to Jackson- ville, Fla., $2.75), subjected it to undue prejudice. The evidence disclosed that the defendant had to meet water and rail competition at Charleston. HELD, on account of water and rail competi- tion at Charleston the circumstances and conditions surrounding the carriage 582 REASONABLENESS OF RATES, §8 (4) (a)— (j) of traffic to the two points are so (lis- similar that the rate to Charleston is not necessarily the measure of a rea- sonable rate to Georgetown, and the existence of a higher rate to Goorge- town than to Charleston is not of itself proof of undue preference at the latter point. Complaint dismissed. George- town Ry. & Light Co. v. N. & W. Ry. Co., 22 L C. C. 144, 146. §8. (4) Water Competition. See Evidence, §14 (5). (a) The fact that there is a water route from a given point to a certain destination affording a low and reason- able rate does not justify the Commis- sion in permitting the rail carriers to charge a high and unreasonable rate on traffic between these points. S. P. Co. V. I. C. C, 219 U. S. 433, 451, 31 Sup. Ct. 288, 55 L. ed. 283. (b) Ocean competition, as well as circumstances and conditions beyond the seaboard, are to be considered in determining whether differences in rates as between foreign and domestic trattiv. are unreasonable or unduly discrimina- tory. Chamber of Commerce of New- port News V. S. Ry. Co., 23 L C. C. 345, 355. (c) A water-compelled rate is not the measure of a normal all-rail rate. Cohen & Co. v. Mallory Steamship Co., 23 L C. C. 374, 377. (d) Complainant shipped rough mar- ble, in carloads, from New York City to San Francisco, Cal., via Galveston, Tex.. a distance of 4,349 miles, under a rate of 95c per 100 lbs. Between the same points a rate of 55c per 100 lbs. applied on rough stone, which is, however, a much cheaper commodity. The stone rate was put in to meet the water com- petition via Cape Horn, but the car- riers, on account of the greater value of marble, did not care to meet the competitive rates by the water carriers on that commodity. HELD, the exist- ence of competition by water carriers is not of itself a ground upon which a shipper may demand a lower rate by rail. It is the privilege of a carrier in its own interest to meet such competi- tion, but it is not the privilege of a shipper to demand less than normal rates because of the existence of a competition which the carrier in its own behalf does not choose to meet. It is also a well-settled principle that a water-compelled rate is not a measure of a normal all-rail rate; the 95c is not unreasonable, and the complaint must be dismissed. Cohen v. Mallory Steamship Co., 23 I. C. C. 374, 377. (e) Lower rates which are forced by water competition cannot be accepted as a measure of reasonableness of rates from points where such competition does not exist. South Atlantic Waste Co. v. S. Ry. Co., 22 I. C. C. 293, 296. (ee) Complainants shipped a carload of soap from St. Louis, Mo., to Nogales, Ariz. Defendants at the time shipment moved recognized water competition. A combination which was used aggregated $1.10. The rate before and after the shipment was $1.10 and defendants at- tempted to establish $1.10 as the legal rate at the time of the shipment, but the rate was not effective for failure to give statutory notice; $1.22 per hun- dred pounds was exacted, which was the legal rate in effect at that time. HELD, carriers may meet water competition in their own interest, and when they choose to regard it a shipper should receive the benefit of its recognition; that the rate was unreasonable to the extent it ex- ceeded $1.10 per 100 lbs. Reparation awarded. Steinfeld & Co. v. I. C. R. R. Co., 20 L C. C. 12. (f) The Commission cannot overcome by an adjustment of freight rates natu- ral advantages, such as water competi- tion and climatic conditions, which one competing locality has over another. Truck Growers' Ass'n v. A. C. L. R. R. Co., 20 I. C. C. 190, 193. (g) Rates are not properly compar- able where water competition controls. Truck Growers' Ass'n v. A. C. L. R. R. Co., 20 1. C. C. 190, 194. (h) Potential water competition is considered in fixing rates. Audley Hill & Co. V. S. Ry. Co., 20 I. C. C. 225, 226. (i) Terminal rates, such as a blanket rate from the Mississippi River to the Atlantic seaboard, to all Pacific ter- minals are low and not a fair measure of rates generally. Ohio Foundry Co. V. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (j) Under the Supreme Court deci- sions, the Seattle rate cannot be used as a standard by which to measure the Spokane rate. City of Spokane v. N. P. Ry. Co., 19 L C. C. 162, 174. REASONABLENESS OF RATES, §8 (4) (k) — (u) 583 (k) Complainants attacked the pro- posed adjustment of commodity rates, Chicago, 111., and St, Paul, Minn., to Spokane, Wash. Defendants proposed to readjust the Spokane rates by taking 75 per cent of the terminal rate from eastern territory and adding thereto a rate which is 16 2-3 per cent less than the present local rates from Seattle to Spokane. Water competition exists at the terminal points and eastern terri- tory to these points takes a blanket rate. HELD, the scheme of the defend- ants assumes that water competition ex- ists at Spokane which must be met, and is therefore founded upon facts which do not exist, and as the Commission is asked to establish rates to Spokane which are inherently reasonable, the scheme of defendants is of no assist- ance in solving the general problem be- fore the Commission, and cannot there- fore be approved. Spokane v, N. P. Ry. Co., 19 I. C. C. 162, 169. (1) The mere fact of water competi- tion is not proof that rail rates are so low as to deprive a carrier of a rea- sonable return. R. R. Commission of Nev. v. S. P. Co., 19 L C. C. 238, 250. (m) Competitive conditions, when shown to exist, may justify the fixing of rates which are not in line with the rates to points where such competition does not obtain. Rainey & Rogers v. St. L. & S. F. R. R. Co., 18 I. C. C. 88, 89. (n) The potential competition through the Tehuantepec route justifies low rates to the Pacific coast. Kentucky Wagon Mfg. Co. V. I. C. R. R. Co., 18 L C. C. 360, 362. (o) Potential competition, as well as actual, justifies low rates. Kentucky Wagon Mfg. Co. v. I. C. R. R. Co., 18 L C. C. 360, 363. (p) On farm wagons from Louisville, Ky., to Sacramento, Cal., and from To- ledo, O., to Portland and Eugene, Ore., and Seattle, Wash., a rate of $1.35 was collected. Shortly before shipments moved a rate of $1.25 was in effect, and had been so for five years, and prior to that period the rate had been for some time $1.15. These lower prior rates had been compelled by potential water competition. Shortly after the shipments in question the $1.25 rate was restored, a small amount of actual traffic having moved meanwhile by water via the American-Hawaiian Steam- ship Co. and the Tehuantepec Ry. HELD, the lower rates in effect prior and subsequent to the shipment in question being forced by actual or po- tential water competition, proof of the existence of such lower rates was not sufficient to establish the unreasonable- ness of the higher rate complained of. Kentucky Wagon Mfg. Co. v. I. C. R. R. Co., 18 I. C. C. 360, 363. (q) Rates from the Atlantic coast to southern points are fixed by the water routes, and no comparison can be made with all-rail rates from interior points to the same destinations. Receivers & Shippers' Asso. of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 L C. C. 440, 453. (r) For many years prior to Jan. 1, 1909, the ra,te on oil in barrels from New York, Cleveland and Minneapolis to San Francisco and Seattle was 90 cents per 100 lbs. From Jan. 1 to June 1, 1909, when the shipments in question moved, defendants had in effect a rate of $1. After June 1, 1909, the 90c rate was restored. The evidence indicated that the 90c rate was forced by water competition. HELD, that a compelled rate could not be taken as the standard by which to measure the reasonableness of a voluntary rate and that therefore the maintenance of the 90c rate did not prove the unreasonableness of the $1 rate. Reparation denied. Fuller & Co. V. P. C. & Y. Ry. Co., 17 I. C. C. 594, 595. (s) While water competition may be availed of by a carrier as its justifica- tion and excuse for rates that are lower than would otherwise be lawful, the existence of such competition is not in itself a ground upon which a shipper may demand a lower rate. Lindsay Brothers v. B. & O. S. W. R. R. Co., 16 I. C. C. 6, 8. (t) A factor to be considered in mak- ing rates from Chicago and St. Louis to St. Paul is the competition of lake lines from Chicago. Indianapolis Freight Bu- reau V. C. C. C. & St. L. Ry. Co., 16 I. C. C. 276, 281. (u) Market competition afforded by jobbing: centers, such as Duluth, which have the benefit of low lake rates, must be considered in establishing rates from St. Louis and Chicago to St. Paul. In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C 276, 281. 584 REASONABLENESS OF RATES, §8 (4) (v)— §9 (aa) (v) Carriers can not be compelled to meet water competition; they do it of their own volition, or whenever the same is potent enough to compel them to do so in order to secure the traffic. In each instance the carrier determines for itself whether such water competition has suffi- cient influence on the traffic to make it reduce its rates. Bainbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. (w) There may be water competition at each of two points, and yet a differ- ence in rates to those points may be jus- tified. Bainbridge Board of Trade v. L. H. & St. L. Ry. Co., 15 I. C. C. 586, 594. §9. Cost of Service. See Advanced Rates, §7 (2); Evi- dence, §18. (a) The cost of the transportation service is an element to be considered in determining the reasonableness of the rate. Nebraska State Ry. Commission V. C. B. & Q. R. R. Co., 23 I. C. C. 121, 126. Carstens Packing Co. v. O. & W. R. R. Co., 22 I. C. C. 77, 81. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 316. In Re Advances in Rates on Packages, 22 I. C. C. 328, 335. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 615, 625. Boileau v. P. & L. E. R. R. Co., 22 L C. C. 640, 646, 652. In Re Advances on Grain, 21 I. C. C. 22, 28. Maritime Exchange v. P. R. R. Co., 21 I. C. C. 81, 84. Meeker v. L. V. R. R. Co., 21 L C. C. 129. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 275. Si)iiliaiie...v^NJ._^£^o., 19 L- C a_162^ 173. ComlnercialCTub of Salt CakeCtt3r^. A. T. & S. F. Ry. Co., 19 L C. C. 218, 222. Commercial Club of Omaha v. B. & O. R. R. Co., 19 L C. C. 397, 401. Board of Trade of Winston- Salem V. N. & W. Ry. Co., 16 I. C. C. 12, 17. Cedar Hill Coal & Coke Co. v. Colo. & So. Ry. Co., 16 L C. C 387, 391. Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. 590, 593. Shippers' and Re- ceivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. 264. Kindel V. N. Y. N. H. & H. R. R. Co , 15 I. C. C. 555, 558. Oregon & Washington Lum- ber Mfrs.' Ass'n v. U. P. R. R. Co., 14 I. C. C. 1, 9, 10. Burnham, Hanna, Munger Co. v. C. R. I. & P. Ry. Co., 14 I. C. C. 299, 310. American Asphalt Ass'n V. Uintah Ry. Co., 13 I. C. C. 196, 204. Cattle Raisers' A*'n of Texas v. ! M. K. & T. Ry. Co., 13 I. C. C. 418, 430. ' (aa) Complainant attacked the rates of defendant S. P. Co., on classes 1 to 4, inclusive, from Medford, Ore., as a jobbing center, to Hornbrook, Klamathon, Ager, Montague, Gazelle, Edgewood, Weed, Sisson and Dunsmuir, Cal., as unreason- able and discriminatory. The rates to these points for distances ranging from 47 to 120 miles ranged from 40c to 75c, first class; 35c to 60c, second class; 32c to 59c, third class, and 27c to 51c, fourth class. The rates were combinations of local rates from Medford to the Oregon- California state line, and from the state line to these destination points. From Medford to the state line the class rates were 32c, 28c, 25c and 21c for the first four classes. From the state line to the destinations in question for distances ranging from 9 to 82 miles the rates ranged from 8c to 43c, first class; 7c to 38c, second class; 7c to 34c, third class; 6c to 30c, fourth class. The defendant on shipments south from Portland, Ore., and north from Sacramento, Cal., to points approximately the same distances as the destinations in question from Med- ford, was applying from Portland rates ranging from 24c to 45c, first class; 21c to 41c, second class; 18c to 38c, third class, and 16c to 34c, fourth class; and from Sacramento, 21c to 45c, first class; I9c to 40c, second class; 17c to 34i^c, third class, and 15c to 31i/^c, fourth class. Defendants' .rates in the state of Oregon were on a higher basis than its rates for substantially the same dis- tances in the state of California. From Ashland, Ore., to the -Oregon-California line, 25 miles, the class rates, first to fourth, were 27c, 24c, 20c and 17c, whereas from the state line to Montague, Cal., 28 miles, they were 17c, 16c, 15c and 14c. From Medford to the state line, 38 miles, they were 32c, 28c, 25c and 21c, whereas from the state line to Gazelle, Cal., taken as a typical point, 43 miles, they were 24c, 22c, 20c and 18c. De- fendants rates from Suisun, Cal., to Cal- istoga, Cal., 47 miles, where there was no water competition, were 25c, 18c, 15c and 13c, first to fourth class; and from Napa Junction, Cal., to Santa Rosa, Cal., 37 miles, they were, in the absence of water competition, 25c, 18c, 15c and 13c for the first to fourth classes. These com- parisons were typical as showing the higher charge of defendants for similar hauls of like distances in Oregon than in California. The rates attacked were higher than those out of Spokane via REASONABLENESS OF RATES, §9 (b)— (i) 585 Boise over the G. T. N., N. P., O. R. R. & N. and O. S. L. Rys., the rates over these latter carriers for first class, taken as typical, for distances ranging from 51 to 79 miles, being from 25c to 38c. De- fendants' rates from Portland to the Cali- fornia destinations in question for dis- tances ranging from 376 to 449 miles were from $1.41 to $1.59 for first class, taken as typical. The class rates estab- lished by the state commissions of Illi- nois, Iowa and Minnesota for distances ranging from 50 to 120 miles ranged from 20c to 34.54c; first class taken as typical. The transportation conditions were prac- tically the same on both sides of the Cali- fornia-Oregon state line. Defendant at- tempted to justify the rates attacked on account of the heavy grades and sharp curves incident to the part of the haul lying in Oregon. It appeared, however, that similar grades and curves were en- countered in moving northbound traffic over the mountains; yet from Zuleka, Cal., to the state line, a distance of 8 miles of ascending grade, the rates, first to fourth class, were 6c, 6c, 6c and 5c, while from the state line to Siskiyou, Cal., a distance of 8 miles of the same degree of ascending grade, the rates were 16c, 14c, lie and 10c. Complainant contended that the rates in question should be adjusted to a scale of through mileage, and that there was no justifica- tion in basing them on combinations to and from the state line. HELD, that the transportation conditions being practi- cally the same on both sides of the line, the difference in the rates for hauls in Oregon and for those in California for similar distances was not justified; and that, on the whole, the rates attacked were unreasonable. Rates to the destina- tions in question, taken in the order named in the beginning of this para- graph, were prescribed ranging from 28c to 59c first class; 23c to 49c, second class, 21c to 44c, third class; and 17c to 35c, fourth class. Medford Trafl^c Bureau v. S. P. Co., 23 L C. C. 701. (b) In the end there must be a rela- tion between the cost of service and the charge to the public for that serv- ice. If the character of service per- formed is changed by public mandate so as to increase the expense of per- forming the service, then the public must pay for its performance. It is therefore in the public interest that every transportation service should be performed by the most economical meth- od. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 316. (c) Carriers may not haul a particu- lar class of traffic or trafllc for a par- ticular community at less than the cost of the service, and recoup themselves from the charges levied against other traflic. In Re Advances in Rates by Carriers for the Transportation of Sin- gle Package Lots, 22 I. C. C. 328, 335. (d) There is no flexible limit of judgment if all rates must be upon a level of cost, and out of every dollar paid to the carrier must come a fixed amount of return for the capital in- vested. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 624. (e) Costs do not determine rates; yet most rates have within them as a constituent the element of cost. Cost is generally an important element in arriving at a judgment with respect to a rate. What weight shall be given to that element as compared with all the other elements entering into a particu- lar rate is a matter to be decided in each individual case. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 652. (f) Certain portions of a system of railroad cannot be segregated from the whole and the expenses and earnings charged and credited to such portions on a mileage pro rata basis. In Re In- vestigation of Advances on Grain, 21 I. C. C. 22, 25. (g) In fixing rates on competitive articles the relation should be determined on the basis of a difference in the cost of service, and many of the other con- siderations entering into the establish- ment of rates upon independent or iso- lated articles should be in a large part eliminated. Carstens Packing Co. v. O. & W. R. R. Co., 22 L C. C. 77. 81. (h) An increase in the cost of labor and in the price of railway materials and supplies does not necessarily imply a de- crease in the net earnings of a carrier or preclude the possibility of an increase in its net earnings, due to an increase in the volume of traflfic. Shippers & Receivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 L C. C. 264, 265. (i) In determining the cost of hauling ice from New Jersey and Pennsylvania points to Jersey City, Hoboken and other points the defendant obtained indirect line expense by assuming that the cost in 586 REASONABLENESS OF RATES, §9 (j)— §10 (bb) the case of ice equaled the average cost of moving a ton of freight upon its line without presenting the slightest evidence to bear out the assumption. The indi- rect terminal expense was obtained by taking an average obtained by dividing the total terminal cost, including a pro- portion of the fixed charges, by the total number of cars of traffic of all kinds shipped on the railroad. Nearly one-third of the total amount which was used for the purpose of determining the ton-mile cost of hauling ice in case of indirect line expenses and of terminal cost was styled "fixed charges," which consisted mainly of rent and to a small extent of interest and taxes. HELD, this method of computing the cost of transportation of the ice was unreliable. The indirect line expense might be greater or less, according to the nature of the entire traf- fic handled over the system. Some of the items which were included in the indirect line expense were due in part to the movement of the ice trains and others were not, and to assume that every ton of the ice should bear a proportionate share of all the expenses of the railroad of all kinds was to beg the whole ques- tion. It was erroneous to assume that ice should pay in proportion to the num- ber of tons exactly the same contribution to fixed charges that all other traflUc paid. Mountain Ice Co. v. D. L. & W. R. R. Co., 15 I. C. C. 305, 316, 318, 319. (j) Rates over the same lines, be- tween the same points but under dif- fering conditions, must be made with some consideration for the difference in the cost of service. Kindel v. N. Y. N. H. & H. R. R. Co., 15 I. C. C. 555, 558. (k) A carrier may not properly or lawfully engage in transportation at a rate less than the cost of the service, since to do so would place an improper and unlawful burden upon other traffic. Burnham, Hanna, Munger Co, v. C. R. I. & P. Ry. Co.. 14 I. C. C. 299, 310. §10. Distance. See Evidence, §58. (a) Distance is always a factor to be taken into consideration in determin- ing the reasonableness of a rate. Dis- tance alone, however, is not controlling. I. C. C. V. U. P. R. R. Co., 222 U. S. 541, 549, a2 Sup. Ct. 108, 56 L, ed. 308; In- dianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 205; In Re Advances in Rates *or the Transportation of Cotton and Cotton Linters, 23 I. C. C. 404, 408; In Re Investigation of Unreason- able Rates on Meats, 23 I. C. C. 656, 669; Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 673; Florida Fruit & Vegetable Shippers' Protective Ass'n v. A. C. L. R. R. Co., 22 I. C. C. 11, 17; Arlington Heights Fruit : ^change v. S. P. Co., 22 I. C. C. 149, ±52; Sioux City Commercial Club v. C. & N. W. Ry. Co., 22 I. C. C. 110, 114; Maricopa County Commercial Club V. Maricopa & Phoenix R. R. Co., 22 I. C. C. 279; Sunflower Glass Co. v. M. P. Ry. Co., 22 I. C. C. 391; In Re Inves- tigation of Advances in Rates on Grain, 21 I. C. C. 22, 34; Meridian Fertilizer Factory v. V. S. & P. Ry. Co., 20 I. C. C. 554; Commercial Club of Salt Lake City V. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 226; Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303, 309; Florida Cotton Oil Co. v. C. of G. Ry. Co., 19 L C. C. 336, C 9; Omaha Grain Exchange v. C. & N. W. Ry. Co., 19 I. C. C. 424, 431; Andy's Ridge Coal Co. v. Southern Ry. Co., 18 I. C. C. 405, 410; Receivers & Ship- pers' Ass'n of Cincinnati v. C. N. O. & ^. P. Ry. Co., 18 I. C. C. 440, 455; Muskogee Trafliic Bureau v. A. T. & S. F. Ry. Co., 17 I. C. C 169, 172; Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 318; Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 16 I. C. C. 195, 203, 204; Phillip V. C. M. & St. P. Ry. Co., 16 I. C. C 418. 419; Fort Dodp^e Commercial Club V. L C. R. R. Co., 16 I. C. C. 572, 581. (b) When long distances are under consideration, it often, and perhaps usu- ally, happens that a considerable differ- ence in mileage may be disregarded in fixing the total through charge, but where different packing-houses pay freight upon the animals which they slaughter in proportion to distance, the element of distance ought to be con- sidered in fixing the proper relation in rates upon the product out. [nvestiga tion of Alleged Unreasonable Rates on Meats, 22 I. C. C. 160, 168. (bb) Defendants' tariffs named a pro- portional rate of 18c per 100 lbs. from Omaha, Neb., to Little Rock, Ark., on grain and grain products destined to Con- way and Morrilton, points lying between Little Rock and Memphis, Tenn., with a milling-in-transit privilege at Little Rock. The tariffs provided for an additional charge for out-of-line hauls of Ic per 100 REASONABLENESS OP RATES, §10 (c)— (1) 587 lbs. for 40 and over 5 miles; l^c for 60 and over 40 miles. The distance from Little Rock to Conway is 30 miles, and to Morrilton, 50 miles. Defendants under this tariff exacted extra charges of ll^c to Conway and 2i/^c to Morrilton. Under a provision in the tariffs, in assess- ing these extra charges the difference between the mileage a shipment actually traveled via a transit point and the mile- age via the shortest route from point ot origin to destination should be consid- ered the mileage of the out-of-line haul. The short line distance from Omaha to Conway is 695 miles via Coffeyville, Kan., while the distance via Little Rock is 738 miles, a difference of 43 miles, for which the out-of-line charge was l^/^c, according to the tariff. By a similar test the out- of-line haul from Omaha to Morrilton is 83 miles, for which the out-of-line charge according to the tariff would be 2l^c. HELD, that the charges exacted were in accordance with the tariff and were not shown to be unreasonable. Brook-Rauch Mill & Elevator Co. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 249. (c) Carriers are ordinarily entitled to charge a slightly higher per mile rate for shorter hauls than are proper to be charged for longer distances. Met- ropolitan Paving Brick Co. v. A. A. R. R. Co., 17 I. C. C. 197, 207. (d) It is well settled that distance is always a factor to be taken into consid- eration in determining either the rea- sonableness of a rate by itself or in oon- sid-ering its relation to rates to other points, but it is equally well settled that distance alone is not controlling. Com- petition is an important element and there are various other considerations, all of which must be taken into account in determining the fact whether a partic- ular rate or a system is entitled as a matter of law to rates that are reason- able and that do not operate to unduly discriminate against them. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 L C. C. 303, 309. (e) The fact that the commodity does not ordinarily move to any great dis- tance from the mill is entitled to proper weight. Florida Cotton Oil Co. v. C. of G. Ry. Co., 19 I. C. C. 336, 339. (f) Distance is an element in rate adjustment, and, all other things being equal, it perhaps is a controlling ele- ment, but can hardly control where other substantial considerations are ma- terially different. Omaha Grain Ex- change V. C. & N. W. Ry. Co., 19 L C. C. 424, 431. (g) A fair profit in the mining of coal is said to be 10c per ton. Perma- nent advantage in the freight rate of 15c per ton, other conditions being equal, gives to the favored mine the market. An attempt, therefore, to apply a strictly mileage scale to relative rates from different mines would practically eliminate all competition. Andy's Ridge Coal Co. V. Southern Ry. Co., 18 1. C. C. 405, 410. (gg) The same rate for a short as for a long haul goes to the question of the reasonableness of the rate, and not a violation of the fourth section. Idaho Commercial Clubs v. O. S. L. R. R. Co., 18 L C. C. 562, 565. (h) Distance is an important, but not necessarily a controlling, factor in rate questions. Whether or not it is conclu- sive depends upon the facts in the case. Muskogee Traffic Bureau v. A. T. & S. F. Ry. Co., 17 I. C. C. 169, 172. (i) Length of haul and other trans- portation factors have a more or less definite relation to the rate that a car- rier may reasonably demand for a trans- portation service. Memphis Cotton Oil Co. V. L C. R. R. Co., 17 I. C. C 313, 318. (j) If strictly distance rates were ap- plied to grain moving from points of origin it is apparent that at a certain distance the rate would be prohibitive. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 16 L C. C. 195, 204. (k) While the Commission is not to be understood as intimating that sub- stantial differences in distance are not to be given consideration, it is not will- ing to accept the theory of rate con- struction based purely on distances. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 16 L C. C 195, 203. (kk) It is a rule of well nigh uni- versal application that, as distance in- creases, difference in distance becomes relatively less important. Black Moun- tain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 29-6. (1) In view of the length of the haul, it is unreasonable to add 9i/^c for a haul of only 30 miles farther. Philip 588 REASONABLENESS OF RATES, §10 (11)— §11 (e) V. C. M. & St P. Ry. Co., 16 I. C. C. 418, 419. (11) Rates are not made with respect of distance alone. Differences in cost of service to the carrier, the value of service to the shipper, and questions of competi- tion in the selling market should also be taken into consideration. Black Moun- tain Coal Land Co. v. S. Ry. Co., 15 I. C. C. 286, 295. (m) Unquestionably mileage is a fac- tor in the determination of the reason- ableness of rates, but how important, or what effect it should have in judging the fairness of a challenged rate is a question which must be answered in the light of all the facts surrounding the exaction of the rate. The Commission will not compel the establishment of rates solely according to mileage; the public benefits, the greater volume of business of carriers warranting lower rates to all, the force of competition and many otTier potent considerations may far outweigh a claim of right founded only on geographic location. Fort Dodge Commercial Club v. L C. R. R. Co., 16 I. C- C. 572, 581. (n) A route may be so circuitous that what would be a reasonable charge for its short-line competitor is not reasonable for it. Olive-Sternenberg Lumber Co. v. T. & N. O. R. R. Co., Unrep. Op. 2. §11. Earnings. See Infra. §30 (a), §36; Evidence, §51. (a) While earnings may be consid- ered in the fixing of a reasonable rate to be charged by a carrier for the trans portation of freight, rates necessarily cannot be based upon earnings alone. This is made clearly to appear when it Is considered that a just and reasonable rate is one which is just to the carrier and to the shipper. It is a rate which yields to tne carrier a fair return upon the value of the property employed in the public service, and it is a rate which is fair to the shipper for the services rendered; and when this rate is estab- lished, if it results in large profits to the carrier, the carrier is fortunate in its business, and if it results in a loss of earning power, so that the business of the carrier is unprofitable, the car- rier is unfortunate. But the rate may not be lowered or raised merely upon the ground that the carrier is either making or losing money, providing al- ways the rate is a reasonable and just rate. Hooker v. 1. C. C, 188 Fed. 242, 253. (b) The fact that the net revenues of a carrier from its ownership of a bridge on which an arbitrary is charged for passengers and freight carried across the same may be greater than the re- turns on ordinary business enterprises is not sufficient in itself to justify a holding that the bridge tolls are ex- cessive. Bridges are and have been regarded as precarious property. They may be damaged or entirely swept away by fioods, and erection of other bridges nearby may draw away their tenants, and thus seriously affect their earning capacity. The net revenues have an undoubted and also an important bear- ing upon the question of the reasonable- ness of rates, but the value of the service to the shipper and the other elements so often referred to as enter- ing into the reasonableness of rates must also be taken into consideration. A railroad company may be operated with a less return than it ought to en- joy, or even at a loss, but neither con- dition of affairs would justify the ex- action by it of rates that are higher than they reasonably should be for service performed, all things being con- sidered. So also the fact that the net earnings of a carrier may be large does not of itself justify the Commission fix- ing a rate at less than is reasonable for the service, all other things being considered. Railroad Commissioners of Iowa V. I. C. R. R. Co., 20 L C. C. 181, 186. (c) The question of revenue must play a not inconsiderable part in deter- mining reasonableness of rates. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 315. (d) The ultimate test of reasonable- ness of rates with the carrier itself is the return for the use of its equipment and facilities. National Hay Ass'n v. M. C. R. R. Co., 19 1. C. C. 34, 48. (e) Complainant attacked rates from Billings, Mont., to points in Wyoming on branch lines of defendant. HELD, that these branch lines traverse a new country, where transportation conditions are difficult and the volume of business comparatively small. These lines, how- ever, are operated as part of a great and prosperous system; they are feed- ers to the main line and help to swell the revenue of that line. A part of any great railroad system might be se- REASONABLENESS OF RATES, §11 (f)— §12 (c) 589 lected, and, counting cost of operation and fixed charges, such part be shown to be unprofitable. This, however, would not truly indicate its value and profit- ableness as an integral part of the whole property. The fact that these branch lines, considered by themselves, fail to show large earnings does not justify the charging of unreasonable rates. Billings Chamber of Commerce v. C. B. & Q. R. R. Co., 19 I. C. C. 71, 75. (f) Whether the result of a proposed rate adjustment will deprive carriers of a fair return on their property must be considered before making any reduction. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 173. (g) Unreasonable rates cannot be permitted simply because the entire re- sult of the railroad's operations might not be as favorable as would otherwise be proper. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 222. (h) The fact that the rate on a par- ticular commodity could he reduced without impairing seriously the revenues of the carrier, standing alone, has little value and forms no basis upon which to determine reasonableness of rates. Min- neapolis Threshing Machine Co. v. C. St. P. M. & O. Ry. Co., 17 I. C. C. 189, 192. (i) Because the revenues of a carrier are high during a period of general pros- perity, rates should not be reduced; the periods when it operated almost at a loss should be considered. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 564. (j) The unfavorable financial condi- tion of defendant cannot lawfully be remedied by imposing unreasonable rates. Railroad Commissioners of Florida v. S. A. L. Ry., 16 L C. C. 1, 5. (k) Where particular rates on a par- ticular commodity between particular points are challenged, the question of net earnings on the particular lines in- volved is not important, unless it be shown that the margin of profit is so small on the system's business, as a whole, that a reduction in the particular rates would reduce the whole income below the reasonable profit point. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 17. (1) An increase in the cost of labor and materials, accompanied by a de- crease in the net revenues of the car- rier, is not necessarily inconsistent with the possibility that its net earnings may still suffice to afford it a fair return on the investment without an increase in its rate schedules. Shippers' & Receiv- ers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. 264, 265. (m) The Commission is bound to consider whether any contemplated re- adjustment will result in serious im- pairment of business investments or undue depreciation in the revenues of the carrier. Black Mountain Land Co. v. So. Ry. Co., 15 I. C. C. 286, 295. (n) If the present system of private ownership of railways is to be con- tinued, sufficient inducement must be extended to private investors. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 417. (o) As the rates of defendants ought not to be fixed altogether with respect to the recent years of prosperity, so neither should they be established upon the basis of this year of adverse condi- tions. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 418. §12. Economical Management. See Advanced Rates, §7 (2) (f), §10; Transportation, §13. (a) It is for the public interest that every transportation service should be performed by the most economical method, since that must ultimately re- sult in the lowest transportation charge. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 316. (b) It is unfair to take from the carrier whatever of profit it may secure by reason of improvement in its plant and adoption of the most modern meth- ods. If our railroad systems are to re- main in private hands, stimulus must be given to the initiative and imagina- tion of railroad operators. The commu- nity may not take with justice what- ever comes by the labor or time saving devices adopted by those who serve the public, nor may the carriers absorb the profits of the shipper resulting from similar efforts. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 625. (c) Something should be expected from the introduction of additional economies. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 285, 590 REASONABLENESS OF RATES, §121/2 (a)— (c) §12J/2' Equalizing of Rates or Markets. See Equalization of Rates, §6. (a) Complainant attacked the rate of 88c per net ton on bituminous coal in carloads from the Pittsburgh, Pa., district to Ashtabula Harbor, O., for transship- ment by vessel on the Great Lakes to points beyond. The coal moving over the New York Central lines from the Pittsburgh district to Ashtabula was car- ried in solid trains averaging 65 cars each of 42 to 44 tons per car. That mov- ing via the Pennsylvania lines moved in trainloads of 40 cars, averaging from 40 to 44 tons each. The weighted average distance from Pittsburgh district to Ash- tabula is 148 miles. From 1901 to 1911 the rate was increased from 73c to 88c. From 1887 to 1900, the rate fluctuated from 70c to $1. Defendant carrier in transporting the coal in question re- ceived the benefit of using the empty cars engaged in hauling iron ore from lake points east, thereby removing the expense of any back haul of empty cars. Complainants contended that the rates attacked were unjust as compared with those from the West Virginia coal fields. The distances from the Pittsburgh district and from West Virginia districts of Poca- hontas, Kanawha and Fairmont to Ashta- bula were 160, 434, 400 and 248 miles, re- spectively, yielding ton mile revenues of 5.5, 2.6, 2.4 and 3.9 mills, respectively. In fixing the rates from these competing mining districts, defendants had practi- cally disregarded distance as well as the fact that the rail competition from the Pittsburgh district to Lake Erie was much greater than that from any of the West Virginia fields. For ten years prior to March 1st, 1912, the differentials between these competing fields were unchanged and under this relation of rates the coal tonnage from the West Virginia mines to the lake ports increased some 885 per cent, while that from the Pittsburgh dis- trict increased only 277 per cent. The cost of mining coal in the Pittsburgh dis- trict was more than in the competing West Virginia districts, being from 80c to $1 per ton in the former and from 50c to 60c in the latter. Defendants did not equalize this advantage in rates in its charges on coal shipped to the Atlantic seaboard for transshipment, but on such coal accorded an advantage in rates to the West Virginia mines. The rate of 88c complained of afforded a ton mile rev- enue of 5.94 mills under the weighted average distance of 148 miles and approx- imately 5.87 mills under straight average mileage. The larger and more prosperous carriers engaged in transporting the coal under the rates in question were paying dividends between the years 1907 and 1911 ranging from 6 to 18 per cent. The operating expenses of transporting Pitts- burgh coal to Ashtabula was probably less than one-half of the rate of 88c. The evi- dence indicated that the rate complained of was raised, step by step, not to bring it up to a level which the carriers might have regarded and defended as reason- able, but in order to let certain compet- ing coal fields into the trade. HELD, that the rate complained of was unrea- sonable and unjust and should not ex- ceed 78c. Boileau v. P. & L. E. R. R. Co., 22 L C. C. 640. (b) Complainant manufacturer of window glass in Coffeyville, Kan., com- plained of rates to the upper Mississippi River crossings, like Fort Madison. The rate was 27c per 100 lbs., as compared with a rate of 19c from competing terri- tory in Indiana and Ohio. Distance from the two centers differed by about 50 miles. Rates from the east had been reduced from 23c to 19c, because 18c had been the rate to St. Louis and the higher rate was discriminatory. Defendants did not carry goods from the east. The general level of rates in the Central Freight As- sociation territory east of the Mississippi River was very much lower than that prevailing in territory west of that river. HELD, that defendants should maintain from the Kansas fields a rate which was fairly in line with the general level of rates, and that had been done. The rea^ sons which induced the reduction of rates from the east did not apply here, as the distance to these northern points was considerably more than to St. Louis, which was not true of shipments from the east. Complaint dismissed. Sun- fiower Glass Co. v. M. P. Ry. Co., 22 1. C. C. 391. (c) Complainant millers located at Buffalo attacked an increase by defend- ant carriers of Ic per 100 lbs. upon fiour and other grain products from Buffalo to New England points, and from Buffalo to New York City and New York points. The differential from New York City to Boston points was two cents, and from New York City to Sherbrooke points in New England was one-half cent above the Boston differential. The Buffalo to REASONABLENESS OF RATES, §13 (a)— §14 (d) 591 New York rate before the advance was 10c per 100 lbs. Millers at Buffalo re- ceived their wheat from Duluth. In mak- ing the advance attacked no change was made in the rates from Minneapolis and Duluth to Buffalo. Complainants at Buf- falo were in competition with millers at Minneapolis and Duluth. The 10-cent rate from Buffalo to New York had, be- fore the advance, been in effect for many years. Complainants showed that de- fendants transported grain and its prod- ucts for other persons for a much less rate per ton mile than would be yielded by the lie or even the 10-cent rate from Buffalo to New York. The distance from Buffalo to New York is 400 miles, and the 10-cent rate would yield a revenue to defendants of 5c per ton mile. Under the export rate from Chicago to New York on wheat and flour, carriers were deriving 2.8 mills and 3 mills per ton mile, respectively. Under the domestic rate on ex-lake wheat, on corn, and on oats from Buffalo to New York, the rev- enue was 10c, 7 11-120 and 6 2-3c per 100 lbs., respectively. Millers at Minneapolis objected to the restoration of the 10-cent rate from Buffalo to New York on the ground that the differential between Du- luth and Minneapolis was 5 cents per hundred pounds, and that even under the advanced 11-cent rate from Buffalo to New York millers at Buffalo had an ad- vantage of 4c per hundred pounds over millers at Minneapolis. It appeared, however, that on account of the advan- tages of location, Minneapolis was, de- spite this differential, a better milling point than Duluth. HELD, following Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 I. C. C. 31, defendants in making an advance must consider the effect upon the business of Buffalo mill- ers, and that the one cent advance was unjust and unreasonable, and the former 10c rate from Buffalo to New York should be restored, and that the rates from Buffalo to Boston points and Sher- brooke points should correspondingly be reduced to 12c and 12i^c, respectively. Banner Milling Co. v. N. Y. C. & H. R. R, R. Co., 14 I. C. C. 398, 401. §13. Equipment Furnished. (a) The Commission frequently con- siders, in determining the reasonable- ness of rates, the equipment furnished. Bash Fertilizer Co. v. Wabash R. R Co., 18 I. C. C. 522, 524. (b) The character of equipment used is in the discretion and for the conve- nience of the carrier, and the conditions surrounding the transportation of mine props are not so dissimilar as to justify a higher charge therefrom. Rickards v. A. C. L. R. R. Co., 23 L C. C. 239. §14. Investment Relying on Rate. (a) The Commission has never un- derstood that it could dictate the policy of a carrier in the making of its rates in so far as there was just room for the exercise of a policy. It has several times explicitly so declared. It has, however, believed that it might consider what the policy of a carrier had been in determining whether the rates result- ing from a change in that policy were just and reasonable. It often happens that the very existence of an industry depends upon the rate accorded to it. If, now, a carrier has established a par- ticular rate for the express purpose of enabling an industry to exist, and if upon the strength of that rate money has been invested which must be de- stroyed if the rate is withdrawn, this fact might properly be considered in passing upon the reasonableness of the proposed change in the rate. Such fact is not controlling, but is one of the cir- cumstances which may properly be kept in view. The Commission might in a proper case order the continued main- tenance of a rate upon which the in- vestment of money had been induced, even though it would not in the first instance as an original proposition have directed the establishment of that rate. Oregon & Washington Lumber Mfrs.' Ass'n V. S. P. Co., 21 L C. C. 389, 394. (b) Under the particular facts in this case, where a business has been built up and maintained under a certain rate, that rate should not be disturbed. Corporation Commission of N. C. v. N. & W. Ry. Co., 19 L C. C. 303, 308. (c) Where a plant has been estab- lished and money invested on the faith of certain rates and conditions, the car- rier may not increase those rates to the serious disadvantage of such invest- ment without good cause or reason. Douglas & Co. V. C. R. L & P. Ry. Co., 16 L C. C. 232, 237. (d) The fact that the business of complainants has been built up under much lower rates would be no reason for requiring the defendants to perform transportation service for a sum which 592 REASOJ^ABLENESS OF RATES, §15 (a)— §16 (a) would not fairly compensate them. Mountain Ice Co. v. D. L. & W. R. R^. Co., 15 I. C. C. 305, 316. §15. Investment of Carrier. See Advanced Rates, §12 (2). (a) Rates should be sufficient to guarantee a fair annual return on the investment and to provide reasonably for keeping the property up to the im- proved modern methods. Meeker & Co. V. L. V. R. R.- Co., 21 I. C. C. 129, 161. (b) Were it possible to determine the exact amount of money which has been put into the railroad properties in Offi cial Classification territory, the amount of return which has been paid to the present time, the degree of prudence with which the property has been con- structed and operated, the investment would furnish a very satisfactory basis in arriving at an equitable return. Advances in Rates — Eastern Case, 20 I. C. C 243, 258. (c) The ordinary considerations of Justice require that money invested in railroads by invitation of the govern ment should be allowed a fair return. This does not mean that the Commis- sion should permit rates which will guarantee all railroad investment, nor which will guarantee any railroad in- vestment at all times, but it should allow rates which will yield to this capital as large a return as it could have obtained from other investments of the same grade. If rates formerly in effect have become insufficient, then higher rates should be permitted. Rates should be such as to render possible a high-class, not an extravagant, trans- portation service. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 262. (d) The nearest approximation to the fair standard of rate regulation is that of bona-fide investment — the sacrifice made by the owners of the property — considering as part of the investment any shortage of return that there may be in the early years of the enterprise. Upon this, taking a life history of the road through a number of years, its pro- moters are entitled to a reasonable re- turn. This, however, is limited; for a return should not be given upon waste- fulness, mismanagement, or poor judg- ment, and always there is present the restriction that no more than a reason- able rate shall be charged. Advances in Rates— Western Case, 20 I. C. C. 307, 347. (e) The original cost of a carrier's property devoted to the public use is an element to be considered in deter- mining the reasonableness of rates. Portland Chamber of Commerce v. O. R. R. & N. Co., 19 I. C. C. 265, 280. (f) A carrier is entitled to ask a fair return upon the value of its prop- erty devoted to the public use, and the public is entitled to demand rates not higher than the services are reasonably worth. Morgan Grain Co. v. A. C. L. R. R. Co., 19 I. C. C. 460, 471. (g) A railroad is entitled to a fair return upon the value of the property devoted by it to the public use, but it is not entitled to have that property paid for by the public, and cannot there- fore demand unreasonably high rates on the ground that one of the railroads leased by it will request permanent im- provements before the expiration of the lease, the money for which must come from the income from operation. Re- ceivers' & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C 440, 462. (h) Any outlay which is not required to keep a railroad's property up to its present standards, but which is neces- sary to provide for the handling of in- creased business, and which, therefore, adds to the permanent earning capacity of the property, should, as between the railway and the public, when the rail- way demands the right to increase a rate for the mere sake of additional revenue, be made, not out of the earn- ings, but out of the capital or surplus. Cattle Raisers' Ass'n of Texas v. M. K. & T. Ry. Co., 13 I. C. C. 418, 432. §16. Long-Continued Adjustment. See Evidence, §29; Voluntary Rates, (a) The long and voluntary mainte- nance of a rate, is a strong admission that a higher rate would be unreason- able, unless satisfactorily explained. A^rlington Heights Fruit Exchange V. S. P. Co., 22 I. C. C. 149, 151. Chatta- nooga Feed Co. v. A. G. S. R. R. Co., 22 I. C. C. 480, 484. Audley Hill & Co. 7. S. Ry. Co.. 20 I. C. C. 225, 226. Com- mercial Club of Omaha v. S. P. Co., 20 T. C. C. 631, 636. Millar v. N. Y. C. & H. R. R. R. Co., 19 I. C. C. 78. Gamble- Robinson Commission Co. v. St. L. & S. F. R. R. Co., 19 I. C, C. 114, 116. Mor, REASONABLENESS OF RATES,- §16 (b)— (h) 593 gan Grain Co. v. A. C. L. R. R. Co., 19 I. C. C. 460, 468. Clark Co. v. Buffalo & Susquehanna Ry. Co., 18 I. C. C. 380, 381. Bartles Oil Co. v. C. M, & St. P. Ry. Co., 17 I. C. C. 146, 148. Memphis Cotton Oil Co. V. I. C. R. R. Co., 17 I. C. C. 313, 318. Riser Co. v. C. of G. Ry. Co., 17 I. C. C. 430, 440. Sunder- land Bros. Co. V. P. M. R. R. Co., 16 I. C. C. 450, 451. Green Bay Business Men's Ass'n v. B. & O. R. R. Co., 15 I. C. C. 59, G3. Darling- & Co. v. B. & 0. R. R. Co., 15 I. C. C. 79, 80. Burgess V. Transcontinental Freight Bureau, 13 1. C. C. 668, 677. (b) Carriers may, to meet competi- tion, establish lower rates than they could justly be compelled to make. Hence, a voluntary rate, established to meet competition, is not to be taken as the measure of what is reasonable. L. & N. R. R. Co. V. I. C. C, 195 Fed. 541, 558. Chamber of Commerce, Ash- burn, Ga., V. G. S. & F. Ry. Co., 23 I. C. C. 140, 149. Simon Cook v. Wabash R. R. Co., 21 I. C. C. 563, 564. Georgia- Carolina Brick Co. v. S. Ry. Co., 20 I. C. C. 148, 149. Audley Hill & Co. v. S. Kv. Co., 20 I. C. C. 225 226. Pabst Brew- ing Co. V. C. M. & St. P. Ry. Co., 19 I. C. C. 584, 586, 587. Breese-Trenton Mining Co. v. Wabash R. R. Co., 19 I. C. C. 598, 600. Frederich & Kempe Co. V. N. Y. N. H. & H. R. R. Co., 18 I. C. C. 481, 484. Commercial Club of Omaha v. Anderson & Saline River Ry. Co., 18 I. C. C. 532, 536. La Salle Paper Co. v. M. C. R. R. Co., 16 I. C. C. 149, 150. Burgess v. Transcon- tinental Freight Bureau, 13 I. C. C. 668, 677. (bb) The fact that rates were not complained of in past is not decisive that they are reasonable. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151, 157. (c) The Commission must be largely influenced in many instances in passing upon the reasonableness of a given rate by the adjustment which has grown up in the particular locality under con- sideration. In Re Advances for the Transportation of Fresh Meats, 23 I. C C. 652, 655. (cc) With very few exceptions, rates from Detroit to Boston, New York and Philadelphia are 78 per cent of corre- sponding rates from Chicago. This per- centage adjustment between Central Freight Association territory and the east has been long in effect, and has given general satisfaction. Commission has uniformly sustained carriers' con- tention that this system of rate making ought not to be disturbed nor even broken in upon in special cases without strong reason for so doing. Traugott Schmidt & Sons v. M. C. R. R. Co., 23 L C. C. 684, 686. (d) To hold that a carrier may not withdraw a rate found by the Commis- sion in another case to be unreasonably low merely because that rate was vol- untarily established .in the first place, would amount to requiring unjust pref- erence, and to setting aside the funda- mental principle that rates must be uni- form under similar conditions. Fair- mont Creamery Co. v. C. B. & Q. R. R. Co., 22 L C. C. 252, 254. (dd) The fact that a reduction of an unreasonable rate or the correction of an unjust discrimination will require re- ductions or corrections at other points ' cannot be accepted as a valid defense of an unreasonable rate or an unjust dis- crimination. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 L C. C. 93, 101. (e) Neither a carrier nor the Com- mission should disturb a long-standing system of rates without considering the effect on property interests; but when a rate is unlawful it should be cor- rected though it destroys property rights. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 315. (ee) Within proper limitations car- riers are justified in making low rates for a particular traffic to induce a move- ment which would not otherwise occur. Consumers Ice Co. v. A. T. & S. F. Ry. Co., 18 L C. C. 277, 278. (f) The voluntary act of carriers in keeping rates in effect for a long period of time raises a presumption that such rates are reasonable. This presumption is rendered stronger if subsequently the rates are reduced. Gamble-Robinson Commission Co. v. St. L. & S. F. R. R. Co., 19 L C. C. 114. (g) The long maintenance of a com- petitive rate was not, upon advance of the rate, an admission that the former rate was reasonable. Breese-Trenton Mining Co. v. W. R. R. Co., 19 I. C. C. 598, 600. (h) In attacking the carload rate of $2 per ton on soft coal originating in Illinois from East St. Louis, 111., to 594 REASONABLENESS OF RATES, §16 (i)— (q) Omaha, Neb., complainants relied on the long maintenance of a rate of $1.80 per net ton as proof that the newly established rate of $2 was excessive. HELD, that the rate from East St. Louis to Omaha on Illinois coal has at all times had reference to competitive con- ditions, including those affecting rates to East St. Louis, and since it has often been held that a carrier may establish rates of this kind for competitive rea- sons lower than it could justly be com- pelled to establish, it does not seem that the long existence of a rate estab- lished and maintained under former and different conditions (not altered by any illegal act of its own) than those now existing should have the same weight and force as proof in the nature of an admission of reasonableness of the former rate, as would ordinarily at- tach to the long continuance of a rate voluntarily established and maintained .under other conditions. Breese-Trenton Mining Co. v. Wabash R. R. Co., 19 I. C. C. 598, 600. (i) Rates long in effect as the result of experimenting ought not to be dis- turbed unless the Commission is certain justice requires it. Andy's Ridge Coal Co. V. So. Ry. Co., 18 I. C. C. 405, 410. (j) It is plainly undesirable to dis- turb a method of rate making long established and generally satisfactory without convincing proof of its injus- tice. Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 L C. C. 30, 35. (k) For a period of at least 14 years prior to Jan. 1, 1909, the rate on beer in carloads to San Francisco was $1 per 100 lbs. from points on the Missis- sippi River and points east thereof to the Atlantic seaboard. Jan. 1, 1909, the rate was raised to $1.10, and on June 5, 1909, the rate of $1 was restored, the minimum of 24,000 lbs. being, however, raised to 30,000 lbs., at the time of said restoration. The rate of $1 on beer wad blanketed from the Atlantic coast to a.) points as far west as the Missis- sippi iliver In shipments to San Fran- cisco. Peer, on shipments generally throughou: the country, took the fifth- class rate of $1.65. HELD, the case was clearly distinguishable from that class of cases where a rate long in force Is advanced, maintained at the higher figure for a short time, and then volun- tarily reduced to the former basis, with- out satisfactory explanation of the ad- vpnce, since in the case in question the restoration of the old rate was accom- panied with an increase of the carload minimum. Reparation denied. Liebold V. D. L. & W. R. R. Co., 17 I. C. C. 503, 505. (1) In the interest of the shipping and consuming public, a carrier has the undoubted right to consider, within proper limitations, the conditions under which industries on its lines in the same general territory with other in- dustries are compelled to conduct their business, and one of these conditions may be a handicap of higher rates on raw material. Avery Mfg. Co. v. A. T. & S. F. Ry. Co., 16 L C. C. 20, 24. (m) The fact that an order reducing Indianapolis to Missouri River rates on furniture will result in a general read- justment of the rates from other points in Central Freight Association territory, will not lead the Commission to deny such order, and the Commission cannot deny such relief, for the sole reason that other points in like situation may be able to show that they are entitled to a similar order. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 71. (n) Where a rate is found to be un- reasonable, the mere fact that a change will require a new alignment of rates will not deter the Commission for or- dering a reduction. Fort Dodge Com- mercial Club V. I. C. R. R. Co.. 16 I. C. C. 572, 582. (o) While the Commission has held that, where upon the strength of a given rate capital has been invested and industrial conditions have become established, this rate cannot be discon- tinued without taking into account its effect upon these commercial and indus- trial conditions, there is no absolute rule requiring for any reason the indefi- nite continuance of such a rate, for the question is also one as to what, under all the circumstances, is just and rea- sonable. Green Bay Business Men's Ass'n V. B. & O. Ry. Co., 15 I. C. C. 59, 64. (p) Where a particular industry has grown up under rates voluntarily estab- lished by carriers, these rates cannot be advanced without considering the effect upon that industry. Beatrice Creamery Co. v. I. C. R. R. Co., 15 L C. C. 109. 128. (q) The Commission will not reduce rates as between certain points in a REASONABLENESS OF RATES, §16 (r)— §19 (a) 595 given classification territory where no evidence is offered that such reduction would be proper as applying to such territory generally. Marshall Oil Co. v. C. & N. W. Ry. Co., 14 I. C. C. 210, 214. (r) When an individual or a com- munity claiming to suffer from an im- proper adjustment of rates makes com- plaint, the situation must be viewed as it exists at the time of complaint, and present conditions and circumstancefi must be given due force and effect in establishing the just relation of rates to the places involved. Anthony Whole- sale Grocery Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. 605, 608. (s) Where a rate is voluntarily estab- lished and maintained for a consider- able period, this fact, although not con- clusive, is strong evidence of the rea- sonableness of the rate. The .force of this presumption is greatly weakened, and may be altogether destroyed by the circumstances under which the rate was established and maintained, but if no particular reason is shown for the put- ting in of the rate, if no commercial or competitive condition prevents the main- tenance of a higher rate, if the main- tenance of this rate has been voluntary upon the part of the carrier, the force of the admission becomes exceedingly strong. Burgess v. Transcontinental Freight Bureau, 13 I. C. C. 668, 677. §17. Manufactured Product. See Evidence, §31. (a) Carriers may make a reasonable differential between the rates on raw material and the article manufactured therefrom. Electric Malting Co. v. A. T. & S. F. Ry. Co., 23 I. C. C. 378, 380. (b) As a general rule there is no objection to a reasonable differential be- tween the rates on material and the manufactured product thereof. McClung & Co. V. L. & N. R. R. Co., 23 I. C. C. 414, 416. (c) The general rule is that manufac- tured products bear higher rates of transportation than does raw material, and is founded in reason, because ordi- narily there is a substantial difference between the value of the one and thai of the other, and frequently there is a greater degree of risk incident to the transportation and care of the manufac- tured product than of the raw material. The practice, however, is not universal, and is departed from in some instances because the reasons for the distinction are lacking, and in other cases because of countervailing commercial and market conditions and considerations. Within the last main class of exceptions would fall the case of grain and grain prod- ucts, which are generally carried at the same rate. The rule, however, more nearly universally applies with respect to the primary or principal product or products than to the secondary products or by-products from the same raw ma- terial. East St. Louis Cotton Oil Co. v. St. L. & S. F. R. R. Co., 20 I. C. C. 37, 40. (d) Rates on manufactured products ought generally to be higher than the rates on the raw materials from which they are made. Bulte Milling Co. v. C. & A. R. R. Co., 15 I. C. C. 351, 364. (e) Beet final molasses took higher rate than finished product for which it was used. Reparation awarded. Ameri- can Milling Co. v. P. M. R. R. Co., Unrep. Op. 328. §18. Mineral Lands Owned by Carrier. See Evidence, §34. (a) Where the coal lands owned by a carrier are leased to an independent company, which makes a profit out of their operation, the carrier should not be permitted to use the value of such property for the purpose of swelling the amount upon which it may demand an income from rates to be paid by the public. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 407. (b) Ore properties belonging to de- fendant carrier were transferred to an independent company in exchange for certificates entitling the holders thereof to participate in the profits of said com- pany. These certificates were turned over gratis to the shareholders of de- fendant. HELD, upon a question of reasonableness of rates said fact could not be urged to deny the right of said shareholders to receive a reasonable in- come on their stock. City of Spokane V. N. P. Ry. Co., 15 I. C. C. 376, 408. §19. Natural Advantages. (a) A point is entitled to the rate which its location and other advantages dictate, without taking into account con- ditions which bring about different rates to other points. Commercial conditions cannot be equalized by an adjustment of freight rates. Penn R. R. Co. v. Inter- 596 REASONABLENESS OF RATES, §19 (b)— §20 (a) national Coal Mining Co., 173 Fed. 1, 6. Meredith v. St. L. S. W. Ry. Co., 23 I. C. C. 31, 34. National Mfg. Co. v. A. T. & S. F. Ry. Co., 23 I. C. C. 86, 87. Elk Cement & Lime Co. v. B. & O. R. R, Co., 22 L C. C. 84, 88. In Re Advances of Rates on Meats, 22 I. C. C 160, 163. Nor- man Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 239. Sinclair & Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 490, 507, 508. East St. Louis Cotton Oil Co. v. St. L. & S. F. R. R. Co., 20 L C. C. 37, 41. Truck Growers' Ass'n v. A. C. L. R. R. Co., 20 I. C. C. 190. 193. National Refining Co. V. C. C. C. & St. L. Ry. Co., 20 L C. C. 649. California Sugar Co. v. S. P. L. A. & S. L. R. R. Co., 19 I. C. C. 6, 9 Railroad Commission of Nevada v. S. P. Co., 19 1. C. C. 238, 256. Maricopa County Commercial Club v. S. F. P. & P. Ry. Co., 19 I. C. C. 257, 258. Cor- poration Commission of N. C. v. N. & W. Ry. Co., 19 L C. C. 303, 309. Harbor City Wholesale Co. v. S. P. Co., 19 L C. C. 323, 331. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 516. Colorado Coal Traffic Ass'n v. C. & S. Ry. Co., 18 1. C. C 572, 576 Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 33. Sagi- naw Board of Trade v. Grand Trunk Ry. Co., 17 I. C. C. 128. Florida Fruit and Vegetable Ass'n v. A. C. L. R. R., 17 I. C. C. 552, 561. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 16. Chicago Lumber & Coal Co. V. T. S. Ry. Co., 16 L C. C. 323, 331. Hafey v. St. L. & S. F. R. R. Co., 15 L C. C. 245, 246. Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. 286. Bulte Milling Co. v. C. & A. R. R. Co., 15 I. C. C. 351. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 419. Kansas City Transportation Bureau v. A. T. & S. F. Ry. Co., 15 I. C. C. 491, 498. Ken- del V. N. Y. N. H. & H. R. R. Co., 15 I. C. C. 555. George's Creek Basin Coal Co. v. B. & O. R. R. Co., 14 I. C. C 127, 133. Greater Des Moines Com mittee v. C. G. W. Ry. Co., 14 L C. C. 294, 297, 298. Burnham, Hanna, Munger Co. V. C. R. L & P. Ry. Co., 14 L C. C. 299, 303. Hecker- Jones- Jewel Milling Co. V. B. & O. R. R. Co., 14 L C. C. 356, 359. Quimby v. Maine Central R. R. Co., 13 I. C. C. 246, 248. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 56, 64. (b) While commercial and Industrial conditions often enter into the reason- ableness of a transportation charge, it is no part of the Commission's duty to so adjust rates that business will or will not be done at a particular point, and this is especially true where no natural advantage is possessed by any locality. Investigation of Alleged Un- reasonable Rates on Meats, 22 I. C. C. 160, 163. (c) Th« Commission cannot overcome by an adjustment of freight rates natu- ral advantages which one competing locality has over another. Truck Grow- ers' Ass'n V. A. C. L. R. R. Co., 20 I. C. C. 190, 193. (d) Every city is entitled to the ad- vantage of its location, and may not lawfully be subjected to high freight charges merely because carriers, for rea- sons of convenience or otherwise, in- clude it with a number of other points in surrounding territory, which latter points are not similarly situated. Cor- poration Commission North Carolina v. N. W. Ry. Co., 19 I. C. C. 303, 309. (e) While it is within the power of the Commission to guard the public against unreasonable charges or unduly discriminatory practices on the part of a particular carrier, the vicissitudes of competition among shippers cannot be compensated for in the freight rate. Ponchatoula Farmers' Ass'n v. I. C. R. R. Co., 19 I. C. C. 513, 516. (f) Proximity of Detroit and Toledo to the great channels of through trans- portation and their location on direct through routes and other circumstances cannot be ignored, and tend to lower rates than can be accorded communities removed from these streams of traffic. Saginaw Board of Trade v. G. T. Ry. Co., 17 I. C. C. 128. (g) Where competitive conditions among shippers are leading considera- tions that induce complaint, the Com- mission must have due regard to. trans-* portation conditions and rights of car- riers, as well as shippers. Chicago Lum- ber & Coal Co. V. Tioga Southeastern Ry. Co., 16 I. C. C. 323, 331. §20. Need for Revenue. See Infra, §30, §36; Evidence, §36, (a) In considering the reasonableness of a whole schedule of rates the Com- mission may well at the outset make in- quiry as to the general financial con- dition of the defendant railroad. R. R. Com. of Nev. v. N. C. O. Ry, Co., 22 I. C. C. 205, 210. REASONABLENESS OF RATES, §20 (b)— §23 (a) 597 (b) The necessitous circumstances in which defendant finds itself as a result of events not connected with the Pitts- burgh lake coal traffic cannot be ac- cepted as the measure of reasonableness of a rate to be imposed upon that traffxc. Boileau v. P. & L. E. R. R Co., 22 I. C. C. 640, 655. (bb) If, contrary to general impres- sion and logical expectation, a more highly developed and better equipped railway cannot do business on as low a basis per unit of traffic as a railway less developed and with poorer equipment, that conclusion should be clearly and un- mistakably demonstrated and proven, and not be accepted on vague impres- sions or general allegations before con- sequential action is taken based upon it in fixing rates. Boileau v, P. & L. E. R. R. Co., 22 I. C. C. 640, 651. (c) The fact that a road may be operated at a loss does not justify rates unreasonably high for the service per- formed. Railroad Commissioners of Iowa V. I. C. R. R. Co., 20 I. C. C. 181, 186. (d) Complainant attacked rates from Fillings, Mont., to points in Wyoming on branch lines of defendant. HELD, that these branch lines traverse a new coun- try, where transportation conditions are difficult and the volume of business com- paratively small. These lines, however, are operated as part of a great and pros- perous system; they are feeders to the main line and help to swell the revenue of that line. A part of any great railroad system might be selected and counting cost of operation and fixed charges such part be shown to be unprofitable. This, however, would not truly indicate its value and profitableness as an integral part of the whole property. The fact that these branch lines considered by themselves fail to show large earnings does not justify the charging of unrea- sonable rates. Billings Chamber of Commerce v. C. B. & Q. R. R. Co., 19 I. C. C. 71, 75. (e) Rates on a branch line may la^v fully be higher than on main lines through well-developed territory where the density of traffic is much greater Commercial Club of Omaha v. C & N W. Ry. Co., 19 L C. C. 156, 159. (f) A new line ought to be wortr what it cost and ought to earn a return upon that amount. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 171. (g) If the branch lines of a railroad are judiciously planned and constructed they should certainly be taken into ac- count in determining the value of the railroad, for although they may not earn a large return upon the cost considered as an independent proposition, they do add to the traffic and the earning power of the entire system; but it must be as- sumed that the new branches which have been constructed are good invest- ments, otherwise they would not have been built, and that they will add to the earnings of the property in proportion as they have added to its cost. No in- crease in rate should be called for on this account. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 171. (h) The unfavorable financial condi- tion of defendant (in the hands of a re- ceiver) cannot lawfully be remedied by imposing unreasonable rates. Railroad Commissioners of Florida v. S. A. L. Ry., 16 L C. C. 1, 5. §21. Obsolescence. (a) The cost of construction should contain no factor of obsolescence; when a thing goes out of service, its value should be written off. In Re Advances in Rates— Eastern Case, 20 I. C. C. 243, 271. §22. Origin of Traffic. (a) It makes no difference so far as the rate is concerned whether traffic originates at one point or at numerous local stations. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 228. (b) A common carrier cannot impose an unreasonable rate because of the origin of the traffic. Acme Cement Plas- ter Co. v. C. G. W. Ry. Co., 18 I. C. C. 19. (c) Emigrants' movables do not enter mto commerce and a railroad company may be justified in moving them on a ess than normal rate as a means of in- '^reasing its general traffic by building up the country. Patten v. Wis. C. Ry. Co., 14 I. C. C. 189. }23. Ownership or Use of Commodity. See Discrimination, §6. (a) A carrier cannot, when goods are tendered to it for transportation, make 'he mere ownership of the goods the test ^f the duty to carry, or discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or 598 REASONABLENESS OF RATES, §23 (b)— §24 (b) in the cost of the service rendered in transporting them, but upon the mere circumstance that the shipper is or is not the real owner of the goods. I. C. C. v. D. L. & W. R. R. Co., 220 U. S. 235, 252, 31 Sup. Ct., 392, 55 L. ed. 448. (b) The rule is well established that a rate cannot be based upon the use to which the commodity is to be devoted; neither can a rate be confined in its terms to an individual or to a class; it must be open to all shippers alike. Vir- ginia-Carolina Chemical Co. v. A. C. L. R. R. Co., 22 I. C. C. 394, 397. (c) It is improper for carriers to base their charges for transportation upon the use to which a commodity may be put. Anaconda Copper Mining Co. v. C. & E. R. R. Co., 19 I. C. C. 592, 596. (d) Subsidiary corporations of the Amalgamated Copper Company, located at Anaconda and Black Eagle, Mont., at- tacked the rate of $2.G5 per net ton for the transportation of coke when used for other purposes than the smelting of iron from the ores from West Virginia and Pennsylvania ovens to Chicago and certain Chicago points. Between these points defendants maintained a rate of $2.35 per net ton on coke when used for smelting iron from the ores. Complain- ants contended that it was illegal to charge a different or greater rate for transporting coke based upon its use and that the $2.65 rate was unjust, unreason- able and discriminatory. They offered no evidence whatever to show or prove that the $2.65 rate was in and of itself unjust, unreasonable or discriminatory, save what appeared on the face of the tariffs, and left the unjustness, the un reasonableness or the discrimination to be deduced or inferred as a matter of law. The freight traffic managers of the de- fendants testified that the $2.35 rate was very low and that $2.65 was just and reasonable. The average distance from the ovens to Chicago by the lines of de- fendants is about 575 miles, and the $2.65 yields an average revenue of 4.6 mills per ton mile. HELD, in view of all the facts and circumstances, it is not established that the rate of $2.65 per net ton is either unjust or unreasonable. Complaint dismissed. Anaconda Copper Mining Co. v. C. & E. R. R. Co., 19 I. C. C. 592, rehearing denied, 21 I. C. C. 40. (e) The determination of a reason- able rate rests in the service performed, the risk involved, the value of the ar- ticle, and the degree of care required to be exercised, but the use to which articles are put, without any difference between them and dissimilarity in con- ditions under which the transportation is performed, may not lawfully be made the basis for a difference in charge. Davis V. West Jersey Express Co., 16 L C. C. 214, 216. (f) In the imposition of freight rates the man who has little with which to pay should not be charged in excess of his more fortunate neighbor. Associa- tion of Union Made Garment Manufac- turers V. C. & N. W. Ry. Co., 16 I. C. C. 405, 406. (g) A lower rate was in effect on steam than commercial coal. Subse- quently changed in accordance with Commission's ruling. No reparation in absence of showing of special damage on basis of steam-coal rate, but awarded on basis of rate established regardless of use. Tennessee Lumber Mfg. Co. v. N. & W. Ry. Co., Unrep. Op. 371. §24. Paper Rate. (a) A proposed industry has the right to ascertain in advance what rates will be established relative to its business. Suffern Grain Co. v. I. C. R. R. Co., 22 L C. C. 178, 184. (b) Complainant attacked the pub- lication of an unreasonable rate for the transportation of iron ore from Grand Rapids, Minn., to Allouez Bay, in the city of Superior, Wis. Complainant and his associates had spent about $50,000 in work preliminary to the opening of ore mines owned by them at Grand Rapids. The actual opening and opera- tion of them would require an expendi- ture of hundreds of thousands of dol- lars. Defendants published a distance- tariff rate of 8.1c per 100 lbs., which complainant alleged depressed the value of his lands so that it was impos- sible for him and his associates to sell, lease or develop the same. De- fendant moved to dismiss the complaint at the close of complainant's case, prin- cipally because it contended it could not be required to publish a rate until ore should actually be offered it for shipment, and also because complainant had ul- terior motives in the filing of the com- plaint and could not be in a posi- tion to ship ore within the maximum effective period of any order the Com- mission could enter, namely, two years. REASONABLENESS OF RATES, §24 (c)— §25 (aa) 599 Defendant claimed it would publish a suitable rate when ore was offered it for shipment. HEuD, a difference in the rate of transportation may determine whether certain ore lands have com- mercial value or not; whether they shall be developed or lie idle. Without in the least questioning the good faith of the statement, the promise of the defendant to publish a rate in line with the then established rate from common territory when complainant's mine shall have actually been opened and ore offered for shipment, can scarcely be regarded as sufficiently defi- nite and certain to warrant hundreds of thousands of dollars being invested upon the strength of it. If it is neces- sary under the Act to have the freight actually upon the ground before the Interstate Commerce Commission can assume jurisdiction and prescribe a just and reasonable rate, what is there to prevent a railway company, if its agents should see fit to resort to such perversity, from refraining to publish a rate on potatoes, for instance, until the potatoes are actually within sight, and from refusing to publish such a rate before the potatoes are planted, or while they are being cultivated and growing, and after they have been dug but not yet brought to the station? Any man who is situated as is the complain- ant has a right to know what the law- ful published rate on his proposed prod- uct is and will be for a reasonable period of time in the future. The fact that complainant could not possibly ship within two years of the effective period of an order of the Commission is not a material point. If the Commission prescribes a reasonable rate to-day for the movement of traffic which possibly may not move within two years, and the railway company refuses volun- tarily to continue that rate for a period longer than two years, it becomes the plain duty of the Commission to insti- tute a new investigation at the proper time and prescribe a rate which shall be just and reasonable under the cir- cumstances and conditions prevailing at such time. The fact that all the car- riers operating in the Mesaba district and all of the carriers and parties in- terested in the ore rates are not made parties to tnis proceeding is immaterial in its bearing upon the legality of this complaint. A complainant cannot be ex- pected to search public and private rec- ords with the view of discovering all parties that may be interested in a cer- tain proceeding. Full publicity attends every step of all proceedings before the Commission, and it must be assumed that parties interested will take notice of what is going on. The complainant in the present proceeding was clearly within his legal rights when he filed his complaint, and it is the duty of the Commission, after full hearing and in- vestigation, to render a decision with reference to the reasonableness of the rate under attack. If the complainant has ulterior motives or hopes for indi- rect benefits not directly arising out of the rate in controversy, that is a matter which should not restrain this Com- mission from performing its plain duty under the law. Motion overruled. Lum V. G. N. Ry. Co., 21 I. C. C 558, 560, 561, 562. (c) A shipper is entitled to have his interstate freight moved at reasonable rates. The fact that for a long time there hftd been no movement of a par- ticular commodity is no justification for the maintenance of an unreasonable rate. Neither is the -probable effect of state prohibitory laws upon the tonnage material, such as beer. Scheuing v. L. & N. R. R. Co., 20 I. C. C. 550, 552. (d) Where blacksmith coal is mined only in the eastern states and can reach Portales, N. M., only from the mines or from some distributing point lika Chicago and reasonable through rates are in ef- fect from mines and distributing points, a rate from Pittsburg, Kan., where such coal is not mined, to Portales is a mere paper rate, and the Commission will not consider the question of its ^ asonable- ness. Sligo Iron Store Co. v. A. T, & S. F. Ry. Co., 17 I. C. C. 139, 142. §25. Past Rates. See Advanced Rates, §5 (4) (a); Evi- dence, §29. (a) Where it appears obvious that to grant the prayer of a complaint to re- duce the rates from Indianapolis to the Mississippi River would involve the equalization of rates in all the territory between Chicago and Buffalo, it must be assumed that the effect of such wide- spread reductions would be not only great, but injurious, and perhaps con- fiscatory upon the revenues of the car- riers. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 208. (aa) Many of the western rates, both class and commodity, were established 600 REASONABLENESS OF RATES, §25 (b)— §26 (a) long ago, when conditions were entirely different from what they are to-day. Whenever those rates have been exam- ined by the Commission, they have al- most without exception been found to be extravagant, and have been reduced. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 162. (b) The Commission must be largely Influenced in many instances in passing upon the reasonableness of a given rate by the adjustment which has grown up in the particular locality under consid- eration. In Re Advances in Rates for the Transportation of Fresh Meats, 23 I. C. C, 652, 655. (c) While the Commission ought to consider the general effect upon the revenues of carriers by the establish- ment of a uniform-distance scale, the mere fact that some particular rate would be somewhat advanced or reduced in comparison with other rates isi no valid objection to that course. Florida Fruit & Vegetable Shippers' Protective Ass'n V. A. C. L. R. R. Co., 22 I. C. C. 11, 16. (d) Justice should not be denied com- plainant because to grant it will necessi- tate a change elsewhere. Equality can- not be withheld because it is or will be objected to by other carriers or shippers. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 93, 100. (e) While the existence of a wrong cannot, of itself, justify its continuance, still, in determining what under all the circumstances is just and reasonable, in pursuance of the authority delegated to the Commission, it must be to some ex- tent guided by conditions as it finds them. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 525. (f) Class rates, long in erect, form- ing the basis of a rate fabric, to which business has adjusted itself, are not dis- turbed upon the mere suggestion that a better scheme might have been originally devised. In Re Advances in Rates — East- ern Case, 20 I. C. C. 243, 306. (g) It is the duty of the Commission to consider rates applied over the en- tire territory likely to be affected by a change in rates to particular points. Cor- poration Commission of North Carolina v. N. & W. Ry. Co., 19 I. C. C. 303. 309, 310. (h) The reasonableness of a rate must of necessity depend upon the con- ditions surrounding the traffic at the time it moves. The length of the haul, the competition to be met, the cost of the service, the value of the service, the density or volume of the tonnage, as well as the general transportation conditions then existing, are factors that have a more or less definite relation to the rate that a carrier may reasonably demand for a transportation service. And these fac- tors, except, possibly, the length of the haul, the grades and other transportation conditions, are in their nature neither permanent nor fixed, but necessarily change with the general economic pano- rama. No presumption of law, there- fore, can arise against an advanced rate simply because a lower rate previously existed. Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 313, 318. (i) While it is always persuasive, yet it is not conclusive that because rates were lower at one time the present rates are unreasonable. Lagomarcino-Grupe Co. V. I. C. R. R. Co., 16 I. C. C. 151. 152. (j) Past rates voluntarily established many years ago are presumed to have been remunerative. Board of Mayor and Aldermen v. V. & S. W. Ry. Co., 15 I. C. C. 453. (458). (k) Development of new territory is not conclusive as to the justness at the present time of a rate adjustment in ef- fect in the past. Burnham, Hanna, Mun- ger Dry Goods Co. v. C. R. I. & P. Ry. Co., 14 I. C. C. 299. §26. Permanent Improvements. See Advanced Rates, §6 (5). (a) Both the Supreme Court and the Commission are committed to the propo- sition that in fixing a fair return upon railroad property, for the purpose of de- termining whether a given advance is reasonable, the railway ought not to treat as a part of its operating expenses the cost of permanent improvements or extensions, and this must of necessity mean that the rates should not be suffi- cient to allow both the payment of divi- dends to stockholders and interest to bondholders, and an additional sum for the purpose of improving and increasing the value of the property. Each genera- tion may well be required to bear its own burden, and the stockholder should not obtain both an adequate dividend upon his stock and an addition to the value of his property. In Re Advances in Rates —Eastern Case, 20 I. C. C. 243, 266. REASONABLENESS OF RATES, §27 (a)— (h) 601 §27. Profits of Shipper. See Advanced Rates, §6 (6); Evi- dence, §45, §62. (a) The Commission has never ac- cepted the theory that if traffic moves freely under a given rate, that is the best test of the reasonableness of the rate; still the Commission has always deemed the state of an industry a pertinent fact in considering the reasonableness of a rate. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 156. (aa) A railway may not impose un- reasonable rates merely because the busi- ness of the shipper is so profitable he can pay it. R. R. Com. of Kan. v. A. T. & S. F. Ry. Co.. 22 I. C. C. 407, 410. (b) The effect of a rate upon com- mercial conditions, whether an industry can exist under particular rates or par- ticular adjustment of rates, are matters of consequence, and facts tending to show these circumstances and conditions are always pertinent. But they are only a single factor in determining the funda- mental questions. A narrowing market, increased cost of production, overpro- duction and many other considerations may render an industry unprofitable without showing the freight rate to be unreasonable. R. R. Com of Kans. v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 410. (bb) A railroad may not impose an unreasonable transportation charge merely because the business of the shipper is so profitable that he can pay it; nor, conversely, can the shipper de- mand that an unreasonable low charge shall be accorded him simply because the profits of his business have shrunk to a point where they are no longer sufficient. R. R. Commissioners of Kansas v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 410. (c) The Commission cannot require of carriers the establishment of rates which will guarantee to a shipper the profitable conduct of his business. R. R. Commissioners of Kansas v. A. T. & S. F. Ry. Co., 22 I. C. C. 407, 410. (cc) It has never been the view of the Commission that the prosperity of a shipper, a locality or a state was a rea- sonable excuse for the imposition of rates conditioned on such prosperity, t)ut when coincident with very substantial reductions in rates the price of a com- modity has nearly doubled in value and claims for loss and damage have ma- terially increased, two of the essential factors of a reasonable rate, value and risk, have been changed in favor of the carrier's contention that proposed ad- vances in rates should be allowed. In Re Investigation of Advances in Rates on Grain, 21 I. C. C. 22, 35. (d) If the principle that a railroad should charge what the traffic will bear is the criterion of railroad rates, no ex- ception can be taken to the transcon- tinental situation, for it is masterfully designed to secure a maximum of rev- enue and yet develop such industries and benefit such communities as the railroad in its wisdom may wish to thrive, for the growth of the Pacific coast certainly is in no small part to be accredited to the discretion lodged in and exercised by the transcontinental traffic manager. Railroad Commission of Nevada v. S. P. Co., 21 I. C. C. 329, 368. (e) For a carrier to make rates for transportation based solely upon the ability of the shipper to pay those rates is to make the charge for transporta- tion depend upon the cost of production, rather than upon the cost of carriage — to measure a public service by the econ- omy practiced by the private shipper. This necessarily gives to the carrier the right to measure the amount of profit which the shipper may make and fix its rate upon a traffic manager's judgment as to what profit he will be permitted. This theory entitles the railroad to enter the books of every enterprise which it serves and raise the lower rates without respect to its own earnings, but solely with respect to the earnings of those whose traffic it carries. This is not regulation of the railroads by the nation, but regulation of the in- dustries and commerce of the country by its railroads. Advances in Rates — Western Case, 20 I. C. C. 307, 350. (f) The cost of production may be considered in determining the reason- ableness of A rate. City of Spokane v. N. P. Ry. Co., 19 I. C. C. 162, 170; Port- land Chamber of Commerce v. O. R. R. & N. Co., 19 I. C. C. 265, 280. (g) The theory is rejected that rates may be increased by progressive advances as long as traffic moves freely. Commercial Club of Omaha v. A. & S. R. R. Co., 19 I. C. C. 419, 421. (h) In comparing the transportation charges on wheat and on fiour from Minneapolis to New York in a contro- 602 REASONABLENESS OF RATES, §27 (i)— §28 (e) versy between Minneapolis and Buffalo millers the commercial profits of the parties are neither controlling nor im- portant. Jennison Co. v. G. N. Ry. Co., 18 I. C. C. 113, 121. (i) The rates necessary to permit growers to market their product at a reasonable profit are not the test of the justness of a transportation charge. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 560. (j) The fact that complainant has been prosperous, although a matter to be considered, does not conclusively show that rates are not discriminatory. Hitchman Coal & Coke Co. v. B. & O. R. R. Co., 16 I. C. C. 512, 519. (k) A controversy over rates .cannot be determined wholly upon the ground that the shippers have enjoyed the low rate for many years and that interests were built up thereunder, and that loss of business, investments, profits and markets will result under the increased rates, since such controversy must be determined on the justness or reason- ableness of the rates in question. Ore- gon & Washington Lumber ]\Ifrs.' Ass'n V. U. P. R. R. Co., 14 L C. C. 1, 14. §28. Relativity of the Rate. See Discrimination, §3 (a); Equali- zation of Rates, §8 (dd); Relative Rates. (a) Breaking rates is an artificial cir- cumstance. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 170. (aa) There would certainly be as much reason for equalizing the combina- tions as between Chicago and St. Louis as between Indianapolis and Chicago. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 195, 204. (b) In absence of an order of Com- mission to the contrarv, carriers have a right to maintain a parity of .rates on ex- port cotton from Texas producing points to New Orleans and to Texas ports if they choose to do so. " In Re Advances on Cotton, 23 I. C. C. 404, 411. (bb) On cases of liquor in glass from Galveston, Tex., to New Orleans, La., complainant was charged the first-class Tate of 80c. Galveston and New Orleans competed in the importation of the class of liquors in question. Defendants' rate from New Orleans to Galveston was 46c. They signfied their willingness to put , into effect the 46c rate from Galveston to New Orleans and made no effort to jus- tify the great disparity between the rates in the opposite direction. HELD, the rate exacted was unreasonable to the extent it exceeded 46c. Reparation awarded. Galveston Commercial Assn. v. G. H. & S. A. Ry. Co., 23 I. C. C. 512. (ba) Rate on pig iron from Birming- ham, Ala., to New Orleans, La., not found to be unreasonable, as compared with other cities similarly situated. New Or- leans Board of Trade v. L. & N. R. R. Co.. 23 L C. C. 429, 431. (c) The Commission's authority with respect to relative adjustments upon a mileage or other basis is more t roperly to be exercised where transportation to common destination is performed by same carriers or set of carriers from re- spective points of origin. Ashgrove Ce- ment Co. V. A. T. & S. F. Ry. Co., 23 I. C. C. 519, 525. (cc) Unless some substantial reason to the contrary is shown, rates from De- troit should bear the ordinary relation to those from Chicago. Traugott Schmidt & Sons V. M. C. R. R. Co., 23 L C. C. 684, 687. (d) Rates can seldom be tested, even as to their reasonableness, strictly by themselves, but must be considered, to an extent, in reference to their environ- ment. Southwestern Missouri Millers' Club V. M. K. & T. Ry. Co., 22 I. C. C. 422, 427. (dd) When it appears that a carrier gives to one point substantially lower rates for substantially the same service that it accords to a competing point, those comparisons are forceful, and in the absence of modifying conditions might well be considered conclusive. Memphis Freight Bureau v. St. L. I. M. & S. Ry. Co., 22 L C. C. 548, 555. (e) Complainants shipped numerous carloads of ice from ice plants in the Pocono Mountains upon the line of the D. L. & W. R. R. to various points of consumption upon the D. L. & W. R. R. in New Jersey. In previous proceed- ings the Commission found the rate to the terminal points unreasonable (15 1. C. C. 305; 17 I. C. C. 447). Carriers reduced the rates to the terminal points but did not reduce the rates to inter- mediate points, although the Commis- sion found the rate to be unreasonable to the terminal points. HELD, there REASONABLENESS OF RATES, §28 (ee) — (p) 603 Is no reason why the Commission must not also have found the same rate un- reasonable to the intermediate point upon the direct line of transportation since it found the rate to be unreason- able to the terminal point. Rates to the terminal points reduced, and repa- ration awarded. Mountain Ice Co. v. D. L. & W. R. R. Co., 21 I. C. C. 45; reparation orders modified, and state- ment of facts concerning reparation, re- written, 21 I. C. C. 596. (ee) The rates applicable to each kind of traffic necessarily must be made with reference to the facts, cir- cumstances and conditions governing the production, transportation and mar- keting of the respective products. With the exception, perhaps, of the long-and- short-haul clause the law has not under- taken to prescribe for the guidance of the Commission any measure of reason- ableness and justness of rates, and it is therefore left to judge from the facts, circumstances and conditions affecting the particular traffic. East St. Louis Cot- ton Oil Co. V. St. L. & S. F. R. R. Co., 20 I. C. C. 37, 42. (f) Both class and commodity rates to Spokane should be slightly lower from Mississippi River points than from Chicago points. City of Spokane v. N. P. Ry. Co., 19 L C. C. 162, 176. (ff) It is self-evident that the car- riage of through traffic is less expensive than the movement of local business, and this fact has served in part as a basis for lowering through rates, which were made up of the combination upon intermediate points. In no case, how- ever, has this been the sole ground for action, and the Commission has ex- pressly recognized the possibility that the factors comprising a through rate may be so low in themselves as to yield a reasonable through charge. This ele- ment alone, without support of any sub- stantial character, would not afford suf- ficient reason for a reduction in rates. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 402. (g) It is unjust to fix rates so as to destroy the business of one concern and create a monopoly in favor of other concerns, even though it be merely in- cidental to meeting competitive rates. Spiegle & Co. v. S. Ry. Co., 19 I. C. C. 522, 525. (h) Rates to local points must be determined independent of comparisons with competitive points. Rainey & Rogers v. St. L. & S. F. R. R. Co., 18 I. C. C. 88, 89. (i) There is no ground for charging a higher rate than the lowest combina- tion. Noble V. V. S. & P. Ry. Co., 18 I. C. C. 224, 225. (j) The unreasonableness of a rate cannot be established by comparing it with the rate to a point situated at the farther edge of territory taking a blanket rate, when the purpose of the comparison is to show the rates charged with respect to distance involved. Bash Fertilizer Co. v. Wabash R. R. Co., 18 I. C. C. 522, 523. (k) Where rates on a particular com- modity bear a uniform relation to rates of a certain class, any inequalities in those rates, as between different places, are those peculiar to that class. A find- ing, therefore, that rates on such com- modities made to conform to a class are relatively unjust would inferentially con- fiemn the adjustment with respect of the entire class, and this is also true of the reasonableness of the rates. Acme Ce- ment Plaster Co. v. L. S. & M. S. Ry. Co., 17 L C. C. 30, 35. (1) The question of whether or not the rate to an interior point, made up of a competitive water or terminal rate plus a local rate, is reasonable, must of neces- sity depend largely upon the reasonable- ness of the local rate. Commercial Clab of Hattiesburg v. Ala. Gt. So. R. R. Co., 17 I. C. C. 534, 543. (mn) The Commission is bound to con- sider the relation that rates involved in any case bear to rates at other point?;, and to take into account the probable result of a change in that relation. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 I. C. C. 12, 18. (o) One of the most satisfactory tests of the reasonableness of the rates of one carrier is a comparison with the rates of other carriers operating in the same territopy under the same general condi- tions. Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co., 15 I. C. C. 460, 466. (p) Rates made up on the combina- tion of a closely adhered to basing line must be made with regard to the cost of the terminal service, which is neces- sarily high. Kindel v. N. Y. N. H. & H R. R. Co., 15 I. C. C. 555. 558. 604 REASONABLENESS OF RATES, §28 (q)— (cc) (q) A system of making rates on cer- tain basing lines should not be abolished, since no system of rate making has been devised successfully as a substitute for it; but it must not be assumed that a basing line for rates may be established, and be made an impassable barrier for through rates, or that cities or markets located at or upon such basing line havp any inviolable possession of, or hold upon, the right to distribute traffic in or from the territory lying beyond, and development of .natural resources, in- crease of population, growth of manufao turing or producing facilities and in- creased traffic on railroads may create changed conditions, warranting changes in rates, in order to afford .iust and rea sonable opportunity for interchan.'^'^ of traffic between points of production anr^ points of consumption. Burnham, Hanna. Hunger Co. v. C. R. I. & P. Ry. Co., 14 I. C. C. 299, 312. (r) The Commission has no authority to establish general rate schedules but must deal with the interstate rates ^' this country, which have not been estab- lished upon any consistent theory, as it finds them. What the Commission takes off in one place it cannot add in another. Unless, therefore, the general result of all rates is to yield an undue revenue to the carrier, the Commission should not reduce a particular rate sim- ply because ft might think, if establish- ing that rate de novo as part of the gen- eral scheme, that it ought to be some- what lower Or somewhat higher in pro- portion to others. The rate attacked must be so out of proportion as to be unreasonable, or must so discriminate as to be undue, or must be unlawful for some other special reason. Corn Belt Meat Producers' Ass'n v. C. B. & Q Ry Co., 14 I. C. C. 376, 394. (s) A most important consideration in determining the reasonableness of a rate is its relation to other rates. This is especially so where the rate attacked is highly competitive. Banner Millins: Co. V. N. Y. C. & H. R. R. R. Co., 13 I. C. C. 31, 34. (t) It is not sufficient for a carrier when called upon to justify a rate, the reasonableness of which is questioned, to assert that its rates generally are fair and just, and that no change may prop- erly be made in any particular rate be- cause it would disturb the integrity of the system as a whole and produce inconsist- encies. This proposition is too general and theoretical for acceptance in th'U application of the requirements of the law to a practical situation. In dealing with a particular rate it is the purpo^-e of the Commission to consider such other rates, as affording a basis for compari- son, but where a given rate is found to be unreasonable, it will not hesitate to order such rate reduced, although the reduction might disarrange the relative adjustment existing between that rate and other rates. Reynolds v. South- ern Express Co., 13 I. C. C. 536, 540. (u) Rates on corn and wheat from Cook, Neb., to St. Louis, Mo., via Auburn, should not exceed that ma'ntaiT^ed via Nebraska City, Neb. Robertson Bros. v. M. P. Ry. Co., Unrep. Op. 126. (v) Rates on common buildino: brick from Mound Valley, Kan., to Bellevue, Neb., should not exceed the rates to Omaha, Neb. Sunderland Bros. Co. v. M. K. & T. Ry. Co., Unrep. Op. 128. (w) Rates on apples from Atchison and Leavenworth, Kan., and Savannah, Mo., to La Crosse, Wis., should not ex- ceed that in effect to St. Paul, Minn. Reparation awarded. Lamb Co. v. C. & N. W. Ry. Co., Unrep. Op. 133. (x) Rate on lumber from Tony, Wis., to Zumbrota, Minn., should not exceed that in effect from Ingram, Wis. Part- ridge Lumber Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 138. (y) Rate on cement from lola, Kan., 'o Tekamah, Neb., should not exceed that n effect to Sioux City over the same route. Sunderland Bros. Co. v. C. & N. W. Ry. Co., Unrep. Op. 148. (z) Rates on sugar from Sterling and Windsor, Colo., to La Crosse, Wis., should not exceed those in effect to St. Paul. Reparation awarded. Great Western Sugar Co. v. U. P. R. R. Co., Unrep. Op. 157. (aa) Rate from La Junta, Colo., to Milwaukee, Wis., out of line with other rates from Colorado common points. Rep- aration awarded. Pabst Brewing Co. v. 0. M. & St. P. Ry. Co., Unrep. Op. 259. (bb) Rate to Rock Island, 111., should lot exceed that in effect to Davenport, a., from Hartford, Mich. Reparation awarded. Lagomarcino-Grupe Co. v. C. B. & Q. R. R. Co., Unrep. Op. 269. (cc) Rate on ground phosphate rock to Newport, Del., from Mount Pleasant, REASONABLENESS OF RATES, §28 (dd)— §32 (a) 605 Tenn., should not exceed that contempo- raneously in effect to Wilminpton, Del., and Philadelphia, Pa. Central Phosphate Co. V. L. & N. R. R. Co., Unrep. Op. 440. (dd) Rate on windmill towers shoull not exceed the rate on windmills. Stover Mfg. Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 114. (ee) Rate on empty mineral-water bot- tles, returned, should not exceed rate on empty beer bottles, returned. Sheboygan Mineral Water Co. v. N. P. Ry. Co., Un- rep. Op. 116. (ff) Rate on empty beer p-ackages from Atchison, Kan., to Milwaukee, Wis., not found unreasonable. Complaint dis- missed. Pabst Brewing Co. v. M. P. Ry. Co., Unrep. Op. 125. (gg) Rates on petroleum and prod- ucts from Chanute and Erie, Kan., to Omaha, Neb., should not exceed those in effect from Coffeyville, Kan. Rates re- duced and reparation awarded. Chanute Refining Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 348. (hh) Rates on brewers' refuse, wet, should not exceed that in effect on brew- ers' refuse, dry. Degentesh Bros. v. C. M. & St. P. Ry. Co., Unrep. Op. 365. (ii) Rates on sugar butter should not exceed rates contemporaneously in effect on maple sugar. Reparation awarded. Post Co. V. D. L. & W. Ry. Co., Unrep. Op. 425. (jj) Locomotive tires and iron axles and wire articles are dissimilar. Not en- titled to same rates. Goodman Mfg. Co. V. P. R. R. Co., Unrep. Op. 570. (kk) Double first-class rate on sodium peroxide found unreasonable to the ex- tent of first-class rate. Goldfield Con- solidated Mines Co. v. S. P. Co., Unrep Op. 593. §29. Reproduction Value of Road. See Evidence, §49. (a) The Commission has for many years felt the necessity of having infor- mation regarding the value of the physi- cal properties of the carriers in the United States as an elament in the valu- ation of their entire properties. Boileau V. P. & L. E. R. R. Co., 22 I C. C. 640. 652. (aa) If any importance whatever is to be attached to the cost of reproduction in the establishment of railway rate-;, the valuation must be undertaken by tlie Government itself. City of Spokane v. N. P. Ry. Co., 15 I. C. C 376, 403. (b) In passing upon a question of rea- sonableness of rates the present value of the carrier's right of way is to be con- sidered, despite the fact that its original cost may have been slight and its jires- ent value be great. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 415. §30. Revenues From Facilities. See Evidence, §36. (a) The fact that the net revenues of a carrier from its ownership of a bridge, on which an arbitrary is charged for passengers and freight carried across the same, may be greater than the re- turns on ordinary business enterprises is not sufficient in itself to justify a holding that the bridge tolls are ex- cessive. Bridges are and have been regarded as precarious property. They may be damaged or entirely swept away by floods and erection of other bridges nearby may draw away their tenants, and thus seriously affect their earning capacity. The net revenues have an undoubted and .also an important bear- ing upon the question of the reason- ableness of rates, but the value of the service to the shipper and the other ele- ments so often referred to as entering into the reasonableness of rates must also be taken into consideration. A railroad company may be operated with a less return than it ought to enjoy, or even at a loss, but neither condition of affairs world justify the exaction by it of rates that are higher than they reasonably should be for service per- formed, all things being considered. So also the fact that the net earnings of a carrier may be large does not of it- self justify the Commission fixing a rate at less than is reasonable for the serv- ice, all other things being considered. Railroad Commissioners of la. v. I. C. R. R. Co., 20 L C. C. 181, 186. §31. Special Service. See Special Services. (a) A commodity transported in special cars should be charged a higher rate than when transported in ordinary box cars. Mountain Ice Co. v. D. L. & W. R. R. Co., 17 I. C. C. 447. §32. Standard for Carriers. (a) In determining the reasonable- ness of an advance in rates by all the 606 REASONABLENESS OF RATES. §32 (b)— §821/2 (a) railroads in Official Classification terri- tory, the Commission ought not to make the most opulent nor the poorest rail- road the standard by which to measure the reasonableness of the rates. In this territory the Pennsylvania system, the New York Central lines and the Baltimore & Ohio Railroad may be taken as typical, and whatever rate might reasonably be imposed upon the&e three systems must be held to be a reasonable charge for that service by all lines. Under rates reasonable for these three systems there may be lines whose earn- ings will be extravagant, but that is their good fortune. There may be lines which cannot make sufficient earnings, but that is their misfortune. The Com- mission ought not to impose upon this territory, for the purpose of allowing defendants additional revenues, higher rates than are adequate to these three systems, considered as a whole. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 274. (b) In determining a freight rate which must of necessity be charged by competing lines the Commission would not look exclusively to that line which could handle the business the cheapest, or which was the strongest financially, but would consider as well the weaker rival. It has never intimated that the rate should be fixed solely with refer- ence to the weakest line, and it would certainly be most unjust to the public in establishing rates to Utah common points to consider merely the expensive and circuitous route via the D. & R. G. R. R. The D. & R. G. R. R. handles about 40 per cent of the Utah business from the East at the present time. It will continue to handle a considerable part of it, and must accept a rate estab- lished by the Commission. This the Commission must and does take into account in the fixing of that rate, but it must be largely influenced by the cost of handling that business over the short and easy line, the U. P. R. R. While this traffic is important to the D. & R. G. R. R., its revenue from this source is but a small part of its entire income, and the Commission could not permit the maintenance of unreasonable rates simply because the entire result of the operations of this company might not be as favorable as would otherwise be proper. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 222. (c) In determining the reasonable- ness of rates from the West to southern territory, the interests of all competing lines must be considered, and not merely that line which can handle the business cheapest. Receivers' & Shippers' Ass'n of Cincinnati v. C. N. O. & T. P. Ry. Co., 18 I. C. C. 440, 464. (d) In determining rates between two points, neither that railroad which can afford to handle traffic at the lowest rate nor that whose necessities might justify the highest rate should be exclu- sively considered. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 392. (e) What may be a proper rate as be- tween separate railroads may become un- reasonable and unjust when these rail- roads are absorbed by a large system serving an extensive territory. Black Mountain Coal Land Co. v. S. Ry. Co , 15 I. C. C. 286, 292. (f) Before the Commission can con- clude that a rate on a given commodity is too high, because it is higher than some other rate named, it must know that the rate selected as the standard for a comparison is a reasonable and a fair one. Darling & Co. v. B. & O, R. R. Co., 15 I. C. C. 79, 83. §32"/2- Subsequent Reduction. See Absorption of Charges, §2 (b); Through Routes and Joint Rates, §13 (j). (a) The voluntary reduction of a rate is not necessarily of itself proof of the fact that the prior rate was unreasonable. Chamber of Commerce v. G. H. & S. A. Ry. Co., 23 I. C. C. 214, 217; National Refining Co. v. M. K. & T. Ry. Co., 23 I. C. C. 527, 530; Pierce v. P. & L. E. R R., 23 I. C. C. 89, 91; Portsmouth Steel Co. V. B. & O. R. R. Co., 23 I. C. C. 510, 511; Fairmont Creamery Co. v. C. B. & Q. R. R. Co., 22 I. C. C. 252, 253; Carter White Lead Co. v. N. & W. Ry. Co., 21 I. C. C. 41, 44; Victor Mfg. Co. v. S. Ry. Co., 21 I. C. C. 222, 226; Roberts Cotton Oil Co. V. I. C. R. R. Co., 21 I C. C. 248, 251; Steinfeld & Co. v. I. C. R. R. Co., 20 I. C. C. 12, 14; Anadarko Cotton Oil Co. v. A. T. & S. F. Ry. Co., 20 I. C. C. 43, 50; Riverside Mills v. G. R. R., 20 I. C. C. 423, 425; Indepenaent Supply Co. v. C. & P. R. R. Co., 20 I. C. C. 66, 67; American Cigar Co. V. P. & R. Ry. Co., 20 I. C. C. 81, 82; Carstens Packing Co. v. S. P. Co., 20 L C. C. 165, 166; Maxwell v. W. T. & N. W. Ry. Co., 20 1. C. C. 197, 198; UUman V. American Express Co., 19 I. C. C. 354, REASONABLENESS OP RATES, §32i/o (aa)— §33 (c) 607 355; Pabst Brewing Co. v. C. M. & St. P Ry. Co., 19 I. C. C. 584, 586; Wabash Coat- ing Mills V. Wabash R. R. Co., 18 I. C. C. 91; Penn. Tobacco Co. v. Old Dominion S. S. Co., 18 I. C. C. 197, 199; Lamb Co. V. M. C. R. R. Co., 18 I. C. C. 279; Ken- tucky Wagon Mfg. Co. v. L C. R. R. Co., 18 L C. C. 360, 363; Stock Yards Cotton & Linseed Meal Co. v. M. K. & T. Ry. Co., 17 I. C. C. 295, 296; Foster Lumber Co. V. G. C. & S. F. Ry. Co., 17 I. C. C. 385, 386; Armour Car Lines v. S. P. Co., 17 I. C. C. 461; Diehl v. C. M. & St. P. Ry. Co., 16 I. C. C. 190, 192; Alphons Custodis Chimney Construction Co. v. S. Ry. Co., 10 L C. C. 584, 586; Com- mercial Coal Co. V. B. & O. R. R. Co., 15 I. C. C. 11, 14; Harlow Lumber Co. v. A. C. L. R. R. Co., 15 I. C. C. 501, 508; Ottumwa Bridge Co. v. C. M. & St. P. Ry. Co., 14 L C. C. 121, 125; Hammond Packing Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 120; Pabst Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 259; Carstens Packing Co. v. M. K. & T. Ry. Co. of Tex., Unrep. Op. 323; Godfrey & Sons V. N. Y. C. & H. R. R. R. Co., Unrep. Op. 503; Edison Portland Cement Co. v. D. L. & W. R. R. Co., Unrep. Op. 538; Alaska Lumber Co. v. G. N. Ry. Co., Unrep Op. 564. (aa) On ground iron ore in carloads from Iron Ridge Junction, Wis., to Spo- kane, Wash., complainant was assessed $1.04, 60c to Portland, Ore., and 44c back to Spokane. One day after shipment moved defendants in pursuance of an or- der of the Commission reduced the rate in question to 00c to make it equal to the Portland rate. Defendants admitted the rate collected to be unreasonable. HELD, reparation should be awarded on the basis of 60c. Winters Metallic Paint Co. V. C. M. & St. P. Ry. Co., 18 L C. C. 596, 597. (b) Through class rate in excess of through commodity rate formerly in ef- fect and subsequently restored found to be unreasonable. Western Lime & Ce- ment Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 20. (c) Cotton-seed meal, Sumter, S. C, to Tampa, Fla., found unreasonable on basis of lower rate subsequently estab- lished. Reparation awarded. Southern Cotton Oil Co. V. A. C. L. R. R. Co., Unrep. Op. 119. (d) Commission held motorcycles should not exceed first-class rate in car- loads and one and one-half times the first class in less than carloads. Car- rier put in effect commodity rates equal to such reduction and subse- quently Commission reduced class rates. Reparation awarded on basis of subse- quent reduction. Mead Auto Cycle Co. V. W. R. R. Co., Unrep. Op. 435; Whiting V. C. B. & Q. R. R. Co., Unrep. Op. 436. (e) Rate voluntarily reduced, ordered maintained for two years. Paonia Pack- ing Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 487; Burno v. M. K. & T. Ry. Co., Unrep. Op. 488. (f) Class rate held unreasonable as compared with lower commodity rate subsequently established. Reparation awarded and reduced rate to be main- tained for two years. Platte Bros. v. C. M. & St. P. Ry. Co., Unrep. Op. 493; Moore v. S. Ry. Co., Unrep. Op. 574. §33. Surplus. See Advanced Rates, §6 (4). (a) A definite and uniform allotment of funds from the charge imposed for the movement of each character of traflSc to provide for interest, dividends and surplus is not proper or justifiable, for the plain reason that it entirely abrogates all classification. In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 604, 625. (b) Carriers in Oflicial Classification territory increased all class rates and about half their commodity rates. They contended they should be allowed to in- vest in improvements and additions to the property an amount equal to that paid by way of dividends to stockhold- ers. In the year 1910 railroad dividends aggregated $405,131,650. HELD, that in- asmuch as every dollar thus added to the value of the property justifies, ac- cording to the claim of the defendants, an added net return, the Commission cannot properly permit an advance in rates with the intent to produce an ac- cumulation of surplus for this purpose, until the status of the surplus is deter- mined by legislative actions or judicial interpretation. In Re Advances in Rates —Eastern Case, 20 I. C. C. 243, 270. (c) A railroad in ordinary years should be permitted to show a substan- tial surplus over and above the payment of a reasonable dividend. This is nec- essary to provide for interest on capital invested in improvements which will not yield an immediate return, to take 608 REASONABLENESS OF RATES, §33 (d)— §3G (g) care of the element of obsolescence and to tide over years of depression, the amount of this surplus, if estimated in comparison with the dividend of stock- holders, must depend upon the relation between stocks and bonds and between value and capitalization. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 271, 272. (d) It seems proper that the accu- mulation of a surplus should be allowed a carrier to provide for the deprecia- tion of way and structures. In Re Ad- vances in Rates — Eastern Case, 20 I. C C. 243, 271. (e) The Commission in fixing rates cannot assume that the surplus accumu- lated by a railroad has been derived from unreasonable exactions, and establish low rates with a view of returning it to the public. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 416. (f) In determining what will be rea- sonable rates for the future, the Commis- sion may properly consider that under the rates in effect a large surplus has been accumulated in the past, but it should not make rates for the purpose of distributing that surplus to the public- City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 416. (g) It is impossible to restore what has been improperly taken in the way of excessive rates to those persons fron: whom it has been received. The Gov ernment, under those circumstances, can not lay hold of this surplus as a fund in trust for the public. City of Spokane v. N. P. Ry. Co., 15 I. C. C. 376, 416. §34. Terminal Facilities. See Terminal Facilities, (a) Terminal facilities, such as team tracks located on an extensive switching system, are entitled to weight in the con- sideration of the reasonableness of a rate. Maritime Exchange v. Penn. R. R. Co., 21 I. C. C. 81, 84. §35. Time of Changing Rate. (a) The public is entitled to depend within bounds upon the continuance of rates when they are once established. Western Oregon Lumber v. S. P. Co.. 14 L C. C. 61, 72. (b) Carriers in changing rates, mini- ma, or other rules which affect the trans- portation charges on a commodity mov- ing only at a particular season, should give consideration to the shipping and selling seasons for that commodity, and arrange for such changes to become ef- fective at a time when they will not seriously disarrange or unfavorably af- fect the movement or sale of the sea- son's output. Hartville Celery Growers' Ass'n V, Pacific Express Co., 14 I. C. C. 590, 593. §35. Ton-IVIile Revenue. See Supra, §11; Evidence, §36. (a) The revenue per ton-mile in it- self is not a sufficient basis for a judg- ment regarding the reasonableness of the rate which yields that revenue. In- quiry must be made regarding the ex- pense incurred in doing the business. Nebraska State Ry. Commission v. C. B. & Q. R. R. Co., 23 1. C. C. 121, 125. (aa) The rate per ton-mile is but one of many influences in rate adjustments; and in the present case its value as a comparison is somewhat impaired. Ash- grove Cement Co. v. A. T. & S. F. Ry. Co., 23 L C. C. 519, 524. (b) It is fallacious to place reliance upon ton-mile earnings as a basis of rate- raking. Much profitable freight is car- ried which yields the lowest rates per ton per mile. In Re Advances on Coal to Lake Ports, 22 I. C. C. 604, 620. (c) On no traffic, except it be lum- ber, are per ton-mile earnings more help- rul in the determination of a reasonable rate than on grain. In Re Investigation of Advances in Rates on Grain, 21 I. C. C. 22, 33. (d) Ton-per-mile revenue is far from conclusive evidence of the reasonable- ness of a rate. Danville Brick Co. v. C. & N. W. Ry. Co., 20 I. C. C. 239, 241. (e) The rate per ton per mile is en- titled to be considered as a relative test in rate-making. National Hay Ass'n v. M. C. R. R. Co., 19 L C. C. 34, 47. (f) Per-ton-per-mile comparisons are often helpful in reaching a conclusion in respect to the reasonablenes of rates, but to take that as the sole test would be a scrutiny from the narrowest view- point, which would deny consideration to many other potent and frequently con- trolling forces which must be given due weight in a proper determination. Mus- kogee Trafl^c Bureau v. A. T. & S. F. R/. Co., 17 I. C. C. 169, 173. (g) The rate per ton-mile rule brings rates down to the narrowest point of REASONABLENESS OF RATES, §36 (li)— §38 (c) 60d scrutiny, and for that purpose is valu- able; but it excludes consideration of other circumstances and conditions which enter into the making of rates, no matter how compulsory or imperious they may be, and it cannot, therefore, be accepted as controlling in determin- ing the reasonableness of rates. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 16 I. C. C. 387, 393. (h) The rate per ton-mile is not the generally accepted basis for making up rates, so far at least as interstate move- ments are concerned, Bulte Milling Co. V. C. & A. R. R. Co., 15 I. C. C. 351, 362. §37. Two-Line Haul. See Evidence, §59. (a) A mileage scale of rates ordina- rily yields a much higher rate in propor- tion for a short haul than for the long one; and when two short hauls are com- bined it is usually unjust to require the two carriers to accept compensation at the rate per mile applied for the entire long haul. To a degree they are entitled to a higher rate in consideration of the fact that their individual hauls are short. In Re Investigation of Alleged Unreason- able Rates on Meats, 23 I. C. C. 656, 661. (b) A rate for a two-line haul from producing points of live stock to packing houses may properly be 2i/^c per 100 lbs. higher than for a one-line haul. In Re Investigation of Rates on Meats, 22 I. C. C. 160, 165. (c) The Commission has often recog- nized that rates over a two-line haul may properly exceed what would be reason- able rates for same distance and under same conditions over a one-line haul. Maricopa County Commercial Club v. S. P. Co., 22 I. C. C. 429, 431. (d) The fact that transportation in volves a two-line haul is of itself a rea- son for a somewhat higher charge than if the service were entirely over a sin- gle line. Ontario Iron Ore Co. v. N. Y. C. & H. R. R. R. Co., 21 I. C. C. 204, 206. (e) A commodity rate to one point over one line affords no basis of com- parison with a higher class rate to a longer distance point over two lines. Wells-Higman Co. v. St. L. I. M. & S. Ry. Co., 18 L C. C. 175, 176. (f) A one-line haul rate is no meas- ure of reasonableness, standing alone, of a higher rate over the route taken consisting of two lines. Snyder-Malone- Donahue Co. v. C. B. & Q. R. R. Co., 18 L C. C. 498. (g) On carloads of stock cattle from South Omaha, Neb., to Cushman, Mont., a rate of 43c was exacted by the C. B. & Q. R. R. Co. and the G. N. R. R. The C. M. & St. P. R. R. had in effect a rate of 30 %c from South Omaha to Lavina, Mont., a point six miles from Cushman, and not reached by the C. B. & Q. R. R. or the G. N. R. R. The lower rate to Lavina was a one-line rate for a one- line haul, whereas the rate attacked was divided between two carriers. No other evidence was offered to show the rate complained of to be unreasonable. HELD, evidence that there is a lower rate to a nearby point via another line is not sufficient to establish the unrea- sonableness of the rate in question. Snyder-Malone-Donahue Co. v. C. B. & Q. R. R. Co., 18 I. C. C. 498, 499. (h) If one carrier voluntarily gives a very low rate per ton per mile over a long and circuitous route in order to handle traffic entirely over its own lines this affords no standard of the reason- ableness of a rate on other traffic which passes over two or more separately owned lines of railroad. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 17 I. C. C. 479, 485. §38. Value of Commodity. See Classification, §11. (a) The fact that the value of wool is much greater than that of sheep and the rate is a thing of less relative con- sequence to the producer might justify a somewhat higher rate on the wool than on the live animal. In Re Trans- portation of Wool, Hides and Pelts, 23 I. C. C. 151, 159. (b) The fact that a commodity is v-ery desirable traffic from a transporta- tion standpoint, loading heavily, and not being liable to loss or damage in transit, can be handled at the convenience of the carrier, and affords a uniform business, and has a very low value at its point of production, are considerations which call for a low rate of transportation. R. R. Com. of Kan. v. A. T. & S. F. Ry. Co., 22 L C. C. 407, 410. (c) Value is an essential factor of a reasonable rate. In Re Investigation of Advances in Rates on Grain, 21 I. C. C. 22, 35. Maritime Exchange v. P. R. R. Co., 21 I. C. C. 81, 85. Commercial Clubs V. O. S. L. R. R. Co., 18 L C. C. 610 REASONABLENESS OF RATES, §38 (d)— §39 (d) 562, 564. James & Abbot Co. v. B. & M. R. R. Co., 17 I. C. C. 273, 274. Moun- tain Ice Co. V. D. L. & W. R. R. Co., 15 I. C. C. 305, 320. (d) In fixing a rate a fair allowance should be made for the value of the commodity handled. Auto Vehicle Co. V. C. M. & St. P. Ry. Co., 21 I. C. C. 286, 288. (e) The ad valorem principle of rate- making can never be departed from. In Re Advances in Rates — Western Case, 20 I. C. C. 307, 355. (f) It is a well-established theory of rate-making, and generally approved by the Commission, that raw materia] should be carried at a lower rate than its finished product, but there are ex- ceptions to it, such as tne rate on wheat and flour, which, because of commercial conditions, are ordinarily carried at the same rate. For many years in Official Classification territory petroleum and its products have been given the same rates; although refined oil is more valuable than crude petro- leum there are a number of by-products of petroleum which are of small value, and the Commission is not prepared to say in this case that on the whole the practice of charging the same rate on petroleum and its products is improper. National Refining Co. v. C. C. C. & St. L. Ry. Co., 20 I. C. C. 649, 650. (g) Rates cannot be made solely with reference to the value of the article transported. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 47. (h) It is axiomatic that rates depend largely upon value, and hence, there is no objection to a special rate for dam- aged or defective goods, based upon the low value of the freight. In Re Reduced Rates on Returned Shipments, 19 I. C. C. 409, 418. (i) The increase in value of the com modity transported is a circumstance which should be considered in determin- ing fhe reasonableness of the rate. Dar- ling & Co. V. B. & O. R. R. Co., 15 I. C. C. 79, 81. (j) An element of importance in the fixing of rates is the value of the article shipped, since it affects the value of the service to the shipper. When, however, the carrier has established a reasonable rate on a given commodity, it cannot be required to change that rate to accord with the differing values of said com- modity produced by defendant shippers, riafey V. St. L. & S. F. R. R. Co., 15 I. C. C. 245, 246. (k) A rate that nearly approaches the value of the shipment is suggestive of error or inadvertence in the adjust- ment of such. Beekman Lumber Co. v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 274, 275. (1) On a demand that the rates on chinaware be graded according to value, the Commission, while declining to do so in the present instance, suggests that there are many reasons for adopting such a basis of rates and suggests the con- sideration of such plan by the carriers. Union Pacific Tea Co. v. Penn. R. R. Co., 14 L C. C. 545, 546. (m) Freight rates, as a whole, should not vary with the price of the commodity carried, nor with general business condi- tions. The railroad shares in the gen- eral adversity or general prosperity by loss or gain in the amount of its traffic, without change in the rate itself. Cattle Raisers' Ass'n of Tex. v. M. K. & T. Ry. Co., 13 I. C. C. 418, 429. (n) No impropriety exists in a gradu- ation of rates in accordance with the actual values of specified commodities. Tn the Matter of Released Rates, 13 I. C. C. 550, 564. (o) Window glass is a desirable traf- fic, because it loads heavily and there is little risk of damage under the present methods of packing. Abeles & Co. v. St. L. S. W. Ry. Co., Unrep. Op. 326. §39. Value of Service. (a) The discharge by the Commission of its duty of control over rates, regu- lations and practices of carriers, neces- sarily involves consideration of the value of the service given to the shipper, as well as the cost and value of the service furnished by the carrier. In Re Ad- vances on Coal to Lake Ports, 22 I. C. C. 60^4, 613. (b) The value of the service is en- titled to be considered in rate making. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C, 34, 47. (c) The value of the service has a more or less definite relation to the rate. Memphis Cotton Oil Co. v. I. C. R. R. Co., 17 I. C. C. 318. 318. (d) The value of the service to the shipper is not conclusive as to the rea- REASONABLENESS OF RATES, §40 (a)— (j) 611 sonableness of the rate exacted, Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C. 170, 175. §40. Volume of Traffic. See Evidence, §63. (a) Rates charged for the transporta tion of mine-prop logs from points Id North Carolina to Norfolk, Va., of 3 and Zy2 cents per 100 lbs. were attacked to the extent they exceeded the rates on saw logs between the same points ol $2.50 per 1,000 board feet. The logs in tended for mine props are similar tc those intended for conversion into lum- ber, except that they are longer; how- ever, the loading and unloading are done by the shippers in both cases. Logs in- tended for mine props are handled on single cars that must be switched out of a train at the loading point, switched into another train when loaded and switched to the track of a connecting carrier at destination, and are moved on logging cars, while sawmill logs generally move in solid trains. The only serv- ice of the carrier in addition to the road haul is the coupling and uncoupling of the engine at the two ends of the run. HELD, the fact that certain traffic is hauled in trainload lots, while com- plainant's traffic moves in carloads, can- not be made the basis of a difference in rates. The character of the equipment used is in the discretion and for the con- venience of the carrier, and the condi- tions surrounding the transportation of mine props are not so dissimilar as tc justify a higher charge thereon. Defend- ant's rates for the transportation of saw logs in this territory having proven to be reasonable and compensatory, it is ordered to maintain the same rate on mine-prop logs as is contemporaneously applied on saw logs. Reparation awarded. Rickards v. A. C. L. R. R. Co., 23 I. C. C. 239. (b) Where an article is shipped both in carload and less-than-carload lots, the carrier must .provide a less-than-carload rate, and cannot confine the movement to carloads. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 320. (c) A rate should decrease as the density of traffic increases. In Re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 275. (d) Rates are usually lowest in those sections where traffic is most dense. In Re Advances in Rates — Eastern Case, 20 I. C. C. 243, 275. (e) The volume of traffic is an ele- ment of rate making. National Hay Ass'n V. M. C. R. R. Co., 19 L C. C 34, 47. (fg) If a rate remains the same nd the cost of service continues the same, an increase in tonnage must produce in- creased revenue. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 L C. C. 218, 223. (h) In attempting to establish its contention that the rates on butter, eggs and poultry from Omaha to points in Cen- tral Freight Association territory and the Atlantic seaboard were discriminatory, complainant compared these rates with those in effect on packing-house products and fruits and vegetables. HELD, that fresh meats move from the Missouri River in enormous volume, thus in 1909, 29,000 carloads, as against 790 of dairy prod- ucts; that in view of the history of the rate, as well as the tonnage, the Com- mission is not persuaded that the rate on fresh meats can be fairly used as a standard of reasonableness; that such perishable products as fruits and vege- tables likewise afford no proper com- parison with the traffic under considera- tion, for they differ from dairy products so materially in character and value, as well as in the conditions under which they are transported. A comparison, however, between rates on butter, eggs and poultry throughout the country gen- erally, especially in sections where the traffic conditions are essentially similar, is of recognized evidentiary value. Com- mercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397, 402. (i) The fact that brick moves in large quantities should be considered in making the rate. Hydraulic-Press Brick Co. V. M. & O. R. R. Co., 19 I. C. C. 530, 531. (j) Whatever difference there may be in the cost to the carrier between traffic in trainloads and traffic in car- loads, it appears from the general course of legislation, with respect to con;merce between the states, from the debates and reports of the various com- mittees in Congress when the Act was under consideration, from the better- considered court opinions and from the reports and opinions of the Commis- sion, that to give greater consideration to trainload traffic than to carload traf- 612 REASONABLENESS OP RATES, §40 (k)— §41 (a) fiQ would create preference iu favor of large shippers and he to the prejudice of small shippers and the public. Ana- conda Copper Mining Co. v. C. & E. R. R. Co., 19 I. C. C. 592, 596. (k) Fertilizer is a commodity which ought to move in carloads at a low rate, and in sections where its use has not become extensive and there is consid- erable movement in less-than-carload lots the difference in rates between car- load and less-than-carload shipments should not be too wide. Virginia-Caro- lina Chemical Co. v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 1. (1) In regard to a less-than-carload can rate on milk, that rate should be somewhat higher than the rate per can when transported in carloads, but such less-than-carload rate per can should bear a reasonable and proper relation to the carload rate. Hood & Sons v. Del. & Hud. Co., 17 I. C. C. 15, 20. (m) While the amount shipped by a concern has little or no bearing on the question of the reasonableness of the rates, it is of some significance where the shipments reach substantial propor- tions. Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 30, 38. (n) So long as carriers publish a rea- sonable any-quantity rate the mere fact that they publish a lower rate in car- loads on other commodities does not jus- tify the Commission in ordering a car- load rate on the article in question. Bentley & Olmstead Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 56. (nn) Propriety of trainload rates doubted. Carstens Packing Co. v. O. S. L. R. R. Co., 17 I. C. C. 324, 328. (o) Cheese tonnage from southwest- ern Wisconsin is extraordinarily dense, which, all other elements being equal, should cause the rates to be lower. Rail- road Commission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 90. (p) Since traflfic into Oklahoma and Texas is increasing at a rate not ex- ceeded in any other section of the coun- try, some reduction should be made in the rates. Ozark Fruit Growers' Aes'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 134, 139. (q) The greater density of popula- tion is on the east side of the Missis- sippi River and the development is such that the volume of traffic exceeds that on the west side. This fact greatly contributes to the ability of the lines to handle business with greater advan- tage and profit. Chicago Lumber & Coal Co. V. Tioga Southeastern Ry. Co., 16 L C. C. 323. 328. (r) A larger volume of tonnage tends to lower rates. Moise Bros. Co. V. C. R. L & P. Ry. Co., 16 L C. C. 550, 555. (s) A road in accepting on a com- paratively small volume of traffic mov- ing to a given point exceptionally low comparative rates, which it must estab- lish in order to secure any part of the traffic, is not thereby estopped from charging reasonably remunerative rates to other points to which it hauls the volume of the traffic from which it must derive the principal part of its revenues. Railroad Commission of Ken- tucky V. L. & N. R. R. Co., 13 I. C. C. 300, 308. (t) Volume of traffic may excuse a lower rate, partly because freight can be handled more cheaply in large quan- tities than in small, and partly because a railroad is justified in making a lower rate to induce a large volume of traffic, where the circumstances are such that the rate will have this effect. Bur- gess V. Transcontinental Freight Bu- reau, 13 I. C. C. 668, 675. §405^. Wages. See Blanket Rates, §4; Evidence, §64/2. it would seem their standard view and that should not be bringing their of conscious- E. R. R. Co., (a) In fixing coal rates that wages of miners and of living should be kept in great issues affecting them decided without at least interests into the horizon ness. Boileau v. P. & L, 22 I. C. C. 640, 647. (b) From the point of view of public policy and humanity, considerations such as the profits of the operators and the carriers, the wages and standard of liv- ing of the miners and the railway em- ployees should not be ignored in the fix- ing of rates on coal. Boileau v. P. & L. E. R. R. Co., 22 I. C. C. 640, 647. §41. Weight. (a) The total disregard of weight existing under the mileage basis of making rates is manifestly unfair to the carrier and discriminatory as be- REASONABLENESS OF RATES, §41 (b)— §44 (b) <)13 tween shippers. The cost of transpor- tation is likely to vary with some de- gree of directness with tho weight of the object to be transported, and in so far as cost is a factor in rate making, weight must likewise be a factor. This disregard of weight existing under the mileage basis was and is fundamentally wrong and should be corrected. In Re Advances on Locomotives and Tenders, 21 L C. C. 103, 105. (b) Weight and distance are two universally recognized fundamental fac- tors in rate making. In Re Advances in Rates on Locomotives and Tenders, 21 I. C. C. 103, 109. (c) Weight is an almost immaterial factor in the transportation of live loco- motives. In Re Advances in Rates on Locomotives and Tenders, 21 I. C. C 103, 111. (d) The minimum carload weight is a factor in the carload rate, and in con- nection with the rate per 100 lbs., de- termines the carload earnings. Any re- duction in the minimum weight without an increase in the rate per 100 'lbs. would therefore reduce the carload earnings of the carrier, and would be equivalent to a reduction in the rate Itself. Georgia Fruit Exchange v. S. Ry. Co., 20 I. C. C. G23, 630. (e) The cost of the movement to the carrier depends upon the weight loaded into the car. The weight of the car must be hauled whether the contents weigh much or little. The expense of transporting a car containing 20,000 lbs. is not much greater than the expense of carrying the same car if it contains but 10,000 lbs. Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 72, 74. ill. REASONABLE RATES. §42. Adding-Machine Paper. (a) On adding-machine paper in less than carloads from Chicago to Portland, a rate of .$2.20 per 100 lbs. was charged. Check paper for cash registers was charged at the rate of $1.75 in less than carloads. The two articles were similar in character and value. HELD, the rate charged on roll paper was discriminatory to the extent that it exceeded $1.75. Reparation awarded. Gill Co. v. O. R. R. & N. Co., 22 I. C. C. 442. §43. Agricultural Implements. (a) On carloads of agricultural Im- plements from Horicon Junction, Wis., to points beyond Minnesota Transfer, a rate of 20c was assessed on the haul to Minnesota Transfer. For several years prior to a date shortly before the movement in question, the rate to the Transfer was 17c, and shortly after shipment it was restored. Defendant did not admit on the pleadings the un- reasonableness of the rate, but waived hearing, filing of briefs and argument, and suggested no condition justifying the advance in rate in effect for a short period of time at the time of shipment. HELD, the rate assessed was unreason- able. Reparation awarded. Van Brunt Mfg. Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 195, 196. (b) On a carload of agricultural ma- chinery from Bancroft, Tex., via Orange, Tex., to Crowley, La., a rate of 59c was exacted. The local rate from Ban- croft to Orange, a distance of 5 miles, was 7c, and from Orange to Crowley, 91 miles, 25c. This local rate from Bancroft to Orange was not filed with the Commission, and was fixed by the Texas commission. Subsequent to the shipment a rate of 35c was established by defendants between the points in question. HELD, the rate exacted was unreasonable to the extent it exceeded 35c. Reparation awarded. Advance Thresher Co. v. O. & N. W. R. R. Co., 15 I. C. C. 599, 601. §44. Antimony Ware, Baskets, Prushes, Camphor, Eartlienware, Gum-:;, Rugs, Sago. (a) The Commission holds that de- fendants should establish to Utah com- mon points import rates on antimony ware, baskets, brushes, camphor, earthen- ware, gums, rugs, sago, tea, tapioca and tea dust, which do not exceed those con- temporaneously in force to the Missouri River. Commercial Club of Salt Lake City v.'A. T. & S. F. Ry. Co., 19 I. C. C. 218, 226. (b) Carloads of bushel baskets from Traverse City, Mich., to Horatio, Ark., were rebilled by complainant shipper's agent at Memphis to Wynne, Ark., where another agent of complainant received them, paid the freight to that point, and rpbilled them via Texarkana to Horatio, the movement passing through Texas. Had the shipments been billed through from Memphis to destination, very much 614 REASONABLENESS OF RATES, §45 (a)— §47 (c) lower charges would have applied. Com- plainant attacked the rate from Memphis to Wynne and from Wynne via Texarkana to Horatio, but offered no evidence as to their reasonableness, except to quote a commodity ra:te of 30c on baskets from Memphis to Clarksville, Arli. The rates exacted were class rates, while the rate quoted was a commodity rate. The dis- tance to Clarksville from Memphis wc.s only 250 miles and to Horatio via Tex- arkana 338 miles. The total charges on four cars were $660.35, based upon mini- mum weights aggregating 81,560 lbs. and a through rate of 83c. HELD, the fac's presented did not show the i-xte assessed to be unreasonable, except in so far as the minima applied exceeded those law- fully published. Wells-Higman Co. v. St. L. I. M. & S. Ry. Co., 18 I C. C. 175, 176. §45. Asphaltum. (a) On liquid asphaltum from Canr-, Kan., to Minneapolis, complainant was assessed 38c. A^ the time of shipment there was in effect from Coffeyvilie. Cha- nute, Erie ind other points near Caney a rate of 19i/^c, which lower rate was shortly after the shipment in questior made effective from Caney. Defendar^^ admitted the rate charged to be unrea- sonable. HELD, the rate attacked wa? excessive. Reparation awarded. Central Commercial Co. v. A. T. & S. F. Ry. Co.,' 17 I. C. C. 166. §46. Automobile Parts. (a) Complainant alleged that unreason- able charges were exacted on metal auto- mobile parts, in* carloads, Milwaukee, Wis., to. Los Angeles Cal., via the C. M. & St. P. R. R. and Santa Fe lines, viz., the first-class rate of $3 per 100 lbs., and between the same points via the C. & N. W., U. P., O. S. L. R. Rs., and S. P., Los A. & S. L. R. R., the same charge. The rate of $3 was a less-than-carload rate as- sessed under the Western Classification, which did not provide any carload rate. Many kinds of machines, such as dyna- mos in parts, freight conveyors, cotton ginning machinery, laundry machinery, and the like, took first-class rates in less than carloads, and the Class A rate in carloads, and these rates applied whether the machine was shipped entire or knocked down. HELD, the tariffs of the defend- ants are unreasonable in not providing for a carload rating on metal automo- bile parts, and the rates exacted are un- reasonable to the extent that they ex- ceed tha fourth-class rate of $1.90 per 100 lbs., minimum 24,000 lbs. Reparation awarded. Auto Vehicle Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 286. §47. Beer. (a) Complainant shipped bottled beer in carloads, St. Louis, Mo., to Cullman, Ala., under a class rate of 56i/^c per 100 lbs.; distance, 478 miles. Defendant maintained a commodity rate of SO^/^c to Birmingham, 54 miles south of Cullman, and to Decatur. 32 miles north. Decatur is a junction of defendant's road and the Southern Ry. Cullman is located only On the line of defendant, while Birming- ham is the point of convergence of many lines. The class rates to Decatur and Birmingham from St. Louis, Mo., were 42c and 47c, respectively. HELD, the rate to Cullman should not be relatively higher in the case of an article which is generally given a commodity rate than in the case of articles which are carried at class rates, and that the rate to Cull- man was unreasonable to the extent it exceeded 37c per 100 lbs. Reparation awarded. Scheuing v. L. & N. R. R. Co., 20 I. C. C. 550. (b) Complainant shipped beer, St. Louis, Mo., to Leadville, Colo., via the D. & R. G. R. R., under a rate of 45c per 100 lbs. HELD, that under the au- thority of Baer Bros. INTercantile Co. v. Ry., 17 I. C. C. 225, the charges exacted were unreasonable to the extent they ex- ceeded 30c per 100 lbs. Reparation awarded. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 19 I. C. C. 18. (c) Complainant shipped beer in car- loads Milwaukee, Wis., to Escanaba and Gladstone, Mich., at 22c per 100 lbs. At time of shipment there was in effect a rate of ]9c per 100 lbs. from such points qs Springfield, Kankakee and Peoria, 111., and Fort Madison, Dubuque and Clinton, la., to Escanaba, and this rate extended to such northerly points as Ashland, Wis., and Duluth, Minn. Much of the traffic originating in this territory must pass through Milwaukee en route to Escanaba, while the length of haul is materially greater than the distance from Milwau- kee to either Escanaba or Gladstone. HELD, the rate exacted was unreason- able to the extent it exceeded 19c per 100 lbs. Reparation awarded. Cleary Bros. Co. v. C. & N. W. Ry. Co., 19 I. C. C. 588. REASONABLENESS OF RATES, §47 (d)— §49 (a) 615 (d) On carloads of beer from St. Louis, Mo., via Pueblo, to Leadville, Colo., complainant was assessed 92c, made up of 47c to Pueblo and 45c from Pueblo to Leadville. HELD, following Baer Bros. Mercantile Co. v. M. P. Ry. Co., 13 I. C. C. 329. and Nollenberger v. M. P. Ry. Co., 15 L C. C. 595, the 45c portion of the charge from Pueblo to Leadville was excessive to the extent that it exceeded 30c. Reparation awarded. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 L C. C. 225, 227; sustained, D. & R. G. R. R. Co. V. I. C. C, 195 Fed. 968. (e) Subsequent to the decision in Roswell Commercial Club v. A. T. & S. F. Ry. Co., 12 I. C. C. 339, defendants reduced the rate on beer from Mil- waukee to Roswell, N. M., from 78 to 72c. HELD, this reduction was a sufla- cient compliance with the general scale of reductions ordered in said case. Pilant V. A. T. & S. F. Ry. Co., 15 L C. C. 178, 180. (f) Following Baer Brothers Mercan- tile Co. V. M. P. Ry. Co., 13 L C. C. 329, the rate of 45c on beer in car- loads from Pueblo to Leadville, Colo., as applied on shipments from St. Louis, Mo., to Leadville, is held to be unrea- sonable to the extent that it exceeds 30c. Reparation awarded. Nollenberger V. M. P. Ry. Co., 15 I. C. C. 595, 597. (g) Near beer, so far as transporta- tion is concerned, differs in no particu- lar from beer, and is entitled to similar rates. Portner Brewing Co. v. S. Ry. Co , TJnrep. Op. 361. (h) Rate on beer from La Crosse, Wis., to Tyndall, S. Dak., found un- reasonable; ordered reduced and repara- tion awarded. Gund Brewing Co. v. C. I^t. & St. P. Ry. Co., Unrep. Op. 501. §48. Beer Bottles and Packages. (a) Complainant shipped a carload of second-hand beer bottles, St. Louis, Mo., to San Antonio, Tex., under a rate of 62c. Contemporaneously there was in effect a rate on junk, including junk bottles, of 33c. Also a rate on empty bottles returned from Texas points to breweries in St. Louis of 21l^c. HELD, the rate exacted was unreasonable to the extent it exceeded 33c, minimum 30,000 lbs. Newding v. M. K. & T. Ry. Co., 19 I. C. C. 29. (b) On carloads of empty beer packages from Omaha, Neb., to Milwau- kee, Wis., and from Kansas City, Mo^, to Milwaukee, complainant was assessed 16c, or one-half the fourth-class rate. Shortly prior to the shipment a rate of lie was in effect. Shortly after the ship- ment this lie rate was restored. De- fendants admitted the rate charged to be unreasonable and joined in asking reparation on the basis of lie. Under the lie rate the earnings per carload ranged from $16.50 to $33. Under the 16c rate it ranged from $24 to $48. The distance was 500 miles. HELD, that an award of reparation can be predicated only upon an affirmative finding that the rate exacted was in fact excessive, and not merely upon a showing that the carrier is willing to honor the claim; that the fact that the defend- ants found it impracticable to main- tain the increased charge did not demonstrate its inherent unreasonable- ness, and the 16c charge could not be held to be excessive. Reparation de- nied. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 359, 360. §49. Bottle Caps. (a) On a carload of bottle caps from Baltimore, Md., to Denver, Colo., mov- ing to New York by rail, thence to Galveston, Tex., by water, and thence to destination by rail, a rate of $1.87 was charged. The Western Classifi- cation gave to tin discs used to make caps for covering tops of beer bottles and to can caps in packages the fourth class rate of $1.16. Complain- ant showed that stamped tinware and can tops took lower rates than the rate complained of in Western and Official Classifications, but submitted no evidence as to the conditions of trans- portation and volume of traffic. The articles in question were circular pieces of tin stamped by machinery into caps to cover beer bottles and fitted inside with a thin cork or fibered disc. The plain tin disc taking the fourth class rate was the raw ma- terial used to make the bottle cap in question. No competition was shown with articles taking a lower rate. Some two years after the shipments in ques- tion a third class rate of $1.48 was established on the commodity, and be- nveen the points in question. HELD, the rate complained of was not shown to be unreasonable. The voluntary re- duction of a rate does not of itself establish that the pre-existing rate was unreasonable or otherwise unlawful. 616 REASONABLENESS OF RATES. §50 (a)— §52 (c) Coors V. S. P. Co., 18 I. C. C. 352, 353. §50. Box Shooks. (a) Complainant attacked the rate of 22%c per 100 lbs. on box shooks, from Pine Bluff, Ark., to Fort Worth, Tex. Lumber, lath, sash and doors took a rate of 18 %c between these points, and were double the value of the shooks, which were worth from $5 to $7.50 per 1,000 ft. The shooks are in the nature of a by-product of saw-mills, and are cut from inferior lumber and sawed to the required length, in order to make boxes of given dimensions. Shooks load to 50,000 lbs., carloads, while lumber loads on the average to about 44,000 lbs. HELD, that as sash and doors, shingles, lath, molding and cooperage stock enjoy the benefit of the lumber rate, box shooks should not take a higher rate, and the rate for the future between the same points should not exceed the cur- rent rate on yellow pine. Sawyer & Austin Lumber Co. v. St. L. I. M. & S. Ry. Co., 19 I. C. C. 141. §51. Brass and Iron Tubing. (a) Defendants' rate from Rome, N. Y., to San Francisco on "brass goods not silver plated, pipe, tubes and flues (copper or brass)" was $1.35 per 100 lbs., in carloads, and $1.85 in less than carloads. On "iron and steel, articles of, tubing cut and bent in shape for bed ends" the rate was $1 on carloads and $1.25 on less than carloads. The tubing shipped by complainant was % iron with an outside covering of Vs brass. HELD, such tubing should take neither the rate on brass tubing nor the rate on iron tubing; that a reasonable rate on the same was $1.25 in carloads and $1.75 on less than carloads. The charges being assessed at $1.35 for car- loads and $1.85 for less than carloads, reparation was awarded on the basis of $1.25 and $1.75, respectively. Merle Co. V. N. Y. C. & H. R. R. R. Co., 17 I. C. C. 475, 477. §52. Brick. (a) Complainant, a manufacturer of low-grade fire brick, attacked the rea- sonableness of the rates on fire brick from Perla, Ark., to certain points in Louisiana. The rate on fire brick from Perla to Ruston, La., per 100 lbs., was 12c, to Monroe, La., 17c, to Tallulah, La, 13y2C. to Winnfield, La., 17c, to Alexandria, La., 17c, and to Shreveport, La., 17c, whereas the corresponding rates on common brick were 7, 6, 7, 12, 7, and 8c, respectively. HELD, the rates on fire brick are unreasonable. Reasonable rates for transportation of fire brick from Perla, Ark., to Ruston should not exceed 12c; to Monroe, 7c; to Tallulah, 7i^c; to Winnfield, lie; to Alexandria, 10c, and to Shrevepor't, 7c. Atchinson v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 131, 134. (b) Complainant was charged rates varying from lie to 13.1c per 100 lbs. for the transportation of carloads of brick shipped in 190y from Coffeyville, Buff City and Tyro, Kan., to Lewis, Marne, Oakland and Shelby on the lines of the C. R. L & P. Ry. Co. in Iowa. These rates were alleged to be unreasonable to the extent that they exceeded a rate of 10c from the same points of origin to more distant points on the Rock Island in the Mississippi River territory. HELD, the conditions surrounding the transportation of brick from the Kansas gas belt to above- named destinations are not so dissimilar to those involved in the transportation of the same commodity to the towns taking the Mississippi River rate as to justify higher rates. The rates are unreasonable in so far as they exceed lOc. Reparation awarded and reason- able rate fixed. Sunderland Bros. Co. v. M. P. Ry. Co., 22 I. C. C. 141, 143. (c) Complainant shipped paving bricks in carloads, Danville, 111., to Cedar Rapids, la., under a rate of 9c per 100 lbs. Prior to the shipment de- fendant was asked to quote a rate and stated that the rate was 7c. Prior to the shipment the rate on com- mon brick had been 7c, and on other brick 9c. After the decision of the Commission in Metropolitan Paving Brick Co. v. Ann Arbor R. R. Co., 17 I. C. C. 197, in which the opinion was expressed that there was no transporta- tion reason for making different rates on different grades of fire, building and paving brick, the 7c rate was canceled, thus making all kinds of brick take the 9c rate. Complainant asserted the 9c rate should have been reduced to 7c. The rate via the short line distance to Cedar Rapids yielded a per ton mile revenue of 6.2 mills, while over the routes actually taken the revenue was as low in some instances as 4.5 mills. The average revenue per ton mile for REASONABLENESS OF RATES, §52 (d) — (i) 617 all the defendants upon all traffic was 6.8 mills. Paving brick is about double the value of common brick. The prin- cipal points with which complainant had to compete had rates of lO^/^c per 100 lbs., except one point where the rate was e^^c, but the revenue to Cedar Rapids was 9.2 mills per ton mile. The 9c rate was 81 per cent of the class rate to Cedar Rapids and in the Metro- politan case the rate fixed by the Com- mission was 84 per cent of the class rate. HELD, the rate charged was reasonable, and not discriminatory. Complaint dismissed. Danville Brick Co. V. C. & N. W. Ry. Co., 20 I. C. C. 239, 241. (d) Rate of 16c per 100 lbs. on brick in carloads from St. Louis, Mo., to Ft. Smith, Ark., found reasonable. Repara- tion awarded. Hydraulic-Press Brick Co. V. St. L. & S. F. R. R. Co., 19 I. C. C. 532. (e) The rate on enameled brick in carloads, Cheltenham, Mo., to Chicago, 111., is unreasonable and unduly dis- criminatory to the extent that it ex- ceeds the rate of 8c per 100 lbs., one cent more than the rate on pressed brick and the same rate as subsequently established by defendants after the shipment moved. Hydraulic-Press Brick Co. V. St. L. & S. F. R. R. Co., 19 L C. C. 554. (f) For many years prior to the de- cision in the Stowe-Fuller case, 12 I. C. C. 215, defendants carried brick from points in Central Freight Association, especially from Ohio and contiguous Kentucky and West Virginia territory, to Trunk Line territory at rates scaled on the basis of a 25c Chicago to New York rate on fire brick and a 20c Chi- cago to New York rate on building and paving brick, these rates being volun- tarily established by the carriers. Under the decision referred to defendants established a Chicago to New York basing rate of 22i/^c on all three classes of brick. Under the former rates it appeared that most of the brick moved under the 20c basing rate, the evidence indicating that fire brick was usually billed under that rate. The movement of brick had recently increased enormously. It was moved in large volume, could be loaded to the full capacity of cars, and it was not subject to loss and damage. It was a very desirable traffic, calling for low rates, HELD, the evidence indicat- ing that prior to the former decision the carriers did not receive on an average above a basic rate of 21c on all three classes of brick, this rate should be established as a Chicago to New York basing rate for the future, rates to intermediate points to be scaled on it at established percentages. Metro- politan Paving Brick Co. v. Ann Arbor R. R. Co., 17 I. C. C. 197, 206-208. (g) On carloads of face brick valued at from $18 to $24 per thousand pounds, from Boston to Lewiston, Me., 139 miles, complainant was assessed the sixth-class rate of 12c. The rate on common brick was much lower and com- plainant contended that the brick shipped should have taken the com- modity rate on common brick, the value of which was from $6 to $8 per thousand pounds. The rate per ton mile charged was 17 mills, or 50 per cent greater than the average earnings on all classes of freight over defend- ants' lines. This rate was applied on this kind of brick generally throughout the country. There was water competi- tion between Boston and Portland, which would tend to keep class rates within reasonable bounds. The traffic in brick between the points in ques- tion was small. HELD, the rates charged were not unreasonable. James & Abbot Co. V. B. & M. R. R., 17 I. C. C. 273, 275. (h) On carloads of fire brick from Joliet, 111., to Milwaukee, Wis., a rate of 5c was charged. Defendants ad- mitted the same to be unreasonable to the extent that it exceeded 4c. The distance is 124 miles. Prior to the shipment, another carrier had in effect a 4c rate and subsequent to the ship- ment defendants published a 4c rate. HELD, the rate exacted was excessive to the extent that it exceeded 4c. Reparation awarded. American Refrac- tories Co. V. E. J. & E. R. R. Co., 16 L C. C. 480, 481. (i) The rate on enameled brick in carloads from Cheltenham, Mo., to New Iberia, La., via the St. L. & S. F. R. R. to Houston, Tex., and thence by the M. L. & T. R. R. & S. Co. was 48c, minimum 40,000 lbs. At the time of movement the rate on enameled brick from Cheltenham via the I. C. R. R. to New Orleans was 15c and from New Orleans to New Iberia via the M. L. & T. R. R. & S. Co. 18c. The rate from Cheltenham to Texas common 618 REASONABLENESS OF RATES, §53 (a)— §56 (a) points, also Galveston and Houston, was 22c. The rates between these points were generally the same on pressed brick and enameled brick. The average value of the former was about $18 and of the latter about $55, per thou- sand. On account of the care required in loading enameled brick, less damage is done in transit than to pressed brick. The short line distance from Cheltenham to New Iberia via New Orleans was 835 miles; the distance by which the shipments moved was 1,208 miles. HELD, the 48c rate was excessive to the extent that it exceeded 30c. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 348. §53. Broom Corn. (a) Complainant attacked the rate of 90c per 100 lbs. on broom corn in carloads, Higgins, Tex., to Des Moines, la., a distance of 603 miles. From Shattuck, Okla., 15 miles nearer Des Moines than Higgins, a rate of 54c was in force, and shortly after the shipment was made, a rate of 60c was put into effect from Higgins. HELD, that since a rate of 55c from Higgins^ to Des Moines would yield 1.82c per ton mile, substantially the same as the rate from Shattuck, such rate would be reason- able. Reparation awarded. Harrah & Stewart Mfg. Co. v. A. T. & S. F. Ry. Co., 21 L C. C. 484. §54. Burlap Bags. (a) The rate on burlap bags ought to be somewhat higher than upon the burlaps, but there is no theory upon which the carriers could justly establish and this Commission approve a rate upon burlap bags twice as great as that upon the raw product. Kent Co. v. N. Y. C. & H. R. R. R. Co., 15 I. C. C. 439, 441. §55. Butter Boxes. (a) On wooden butter boxes in car- loads from Manchester, Vt., to Waterloo, Wis., via Milwaukee, shipped under through billing, a rate of 46c was ex- acted consisting of 31c to Milwaukee and 15c from Milwaukee to Waterloo, the minimum being 20,000 lbs. by one carrier and 16,000 by another. Com- plainant contended that the articles in question should be classified with wooden pails, tubs, kits, barrels, kegs, well buckets, or wooden drums, which took the class D rate of 6c, minimum 24,000 lbs. The boxes shipped held from 3 to 5 lbs. of butter, were made of thin wood and fitted with a tightly coopered lid, had to be shipped in crates, and could not, like the other articles named, be nested. They could not load to a minimum to exceed 16,000 lbs. and were not analogous in weight to the other articles mentioned. HELD, the 15c portion of the rate from Milwaukee to Waterloo was excessive and should not exceed 9c, minimum 16,- 000 lbs. Reparation awarded. Roach & Seeber Co. v. C. M. & St. P. Ry. Co., 18 L C. C. 172, 173. §56. Butter, Eggs and Poultry. (a) Complainant attacked rates on butter, eggs and poultry in carloads from Omaha, Neb., to points in Indi- ana, Michigan, Ohio, West Virginia, Pennsylvania, New York, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, Delaware, Virginia and the District of Columbia. There were no joint rates in effect from Omaha to the destinations named, the rates being made by combination either upon the Mississippi River or Chicago. The rates from Omaha to the Missis- sippi River were commodity rates and varied to some extent with the ulti- mate destination of the traffic. The rates from Omaha to Chicago were class rates applying on both locals and through traflac. Under the Western Classification butter and eggs L. C. L. took second-class rates, while dressed poultry was placed in the first class. All three commodities in straight or mixed carloads took third-class rates. The rates from Mississippi River cross- ings and Chicago to eastern points were any-quantity class rates effective on both through and local business. The Official Classification provided the second class rating for butter and eggs, while dressed poultry moved under first-class rates. The any-quantity rates in Official Classification territory in- cluded the expense of icing, whereas the carload rates from Omaha to the IMississippi River and Chicago were ex- clusive of icing. On shipments L. C. L. the western carriers bear the cost of T-efrigeration. As representative of the rates in issue those applying on butter and eggs from Omaha to New York were $1.10 per 100 lbs. C. L. and $1.21 per 100 lbs. L. C. L. Com- REASONABLENESS OF RATES, §56 (b)— §57 Oc) 619 plainant contended that if the L. C. L. rates were remunerative, the C. L. rates should he reduced and also that the pres- ent rates, being made up of the combina- tion of the intermediate ideal rates, were unreasonable by virtue of that fact; and that the rates on the commodities men- tioned were materially higher than the rates on other perishable products, such as fresh meats, fruits and vegetables. HELD, that it must be conceded car- riers are under a greater expense in taking care of L. C. L. freight than in moving C. L. traffic. However, the ad- mitted difference in the cost of service is entirely consistent with the con- clusion that the existing rates are lib- eral as far as L. C. L. freight jls con- cerned and no more than a reason- able charge upon C. L. traffic; that the Commission cannot condemn the existing any-quantity rates and reduce the C. L. rate, thus giving the car-lot shipper a greater advantage than he at present possesses; and that the through rates cannot be lowered on account of the mere fact alone that they are made up of the combination on intermediate points; that the com- parison with packing-house products cannot be used as a criterion by which to determine the reasonableness of rates on other perishable products on ac- count of the enormous difference in tonnage, and the difference from dairy products in character and value; that a comparison between rates on butter, eggs and poultry throughout the coun- try generally, especially in sections where the traffic conditions are es- sentially similar, is of recognized evi- dentiary value, and that if such a com- parison is undertaken it will appear that nowhere in the United States are there lower rates on dairy products than now in effect from Omaha to points in Central Freight Association territory. The fact that these rates have been maintained at their present level for over 20 years while the volume of traffic has greatly increased, rising from approximately 126 carloads in 1900 to 790 carloads in 1909 does not show the rates to be excessive. Com- plaint dismissed. Commercial Club of Omaha v. B. & O. R. R. Co., 19 I. C. C. 397. (b) On carloads of eggs from Leslie, Ark., to Chicago, defendants assessed the only published rate, $1.10 per 100 lbs. Shortly thereafter they established a special commodity rate of 77 ^c. They signified their willingness to the Com- mission to continue this commodity rate and to make reparation. For similar distances from Arkansas points to Chi- cago, defendants' rates ranged from 57c to 67c. HELD, the rate exacted was unreasonable. Reparation awarded on the basis of 77 %c. Smith & Co. v. M. & N. A. R. R. Co., 15 I. C. C. 449, 450. §57. Canned Goods. (a) On a carload of canned goods, weight 43,300 lbs., from San Jos§, Cal., to Roundup, Mont., complainant was assessed a commodity rate of $1.10 from San Jos6 to Harlowton, Mont., plus the local fifth-class rate of 24c from Harlowton to Roundup. Canned goods for transportation is a commodity of lower grade than dried fruit, taking under Western Classification the fifth- class rate. The commodity rate on dried fruit in boxes at the time of said shipment from San Jos6 to Harlow- ton was $1.10. HELD, that the rate complained of from San Jos6 to Har- lowton, when to a point beyond, was unreasonable. Reparation awarded on basis of $1.10 from San Jos6 to Har- lowton. Stone-Ordean-Wells Co. v. S. P. Co., 18 L C. C. 13, 14. (b) On three carloads and one less- than-carload lot of canned peaches from Martindale, Ga., to Chattanooga, Tenn., complainant was assessed the fifth- class rate or 19c upon carload lots and the third-class rate or 26c upon less-than- carload lots. Shortly thereafter, defendant established carload and less-than-car- load rates of 18 and 24c, respectively. Such rates correspond to the rates from other points in the vicinity of Martin- dale. Rates between points within the the state of Georgia were considerably lower, as established by the Georgia Railroad Commission, but there was no evidence that the 18c and 24c rates were unreasonable. HELD, the charges exacted were unreasonable. Reparation awarded on the basis of the 18c and 24c rates. Hutcheson & Co. V. Central of Georgia Ry, Co., 16 I. C. C. 523, 524. (c) The application of the Cleveland to Boston fifth-class rate on canned goods to shipments of same from Ir- ving, N. Y., to Burlington, Vt, is un- reasonable to the extent of 4c per 100 lbs. Reparation awarded. Erie Pre- 620 REASONABLENESS OF RATES, §58 (a)— §61 (a) serving Co. v. L. S. & M. S. Ry. Co., 14 I. C. C. 118. §58. Car Wheels and Axles. (a) In January, 1908, complainant shipped a carload of car wheels on axles from Wilmington, Del., to Dia- mondville, Wyo. Complainant asked rep- aration of the difference between the amount charged west of the Mississippi River upon the wheels, and the amount that would be charged at the commodity rate of 97%c per 100 lbs. on mining- car skips. HELD, since the wheels are an integral part of the skips, and are no more liable to damage in transit than the completed skips, the rate assessed west of the Mississippi on the wheels was unreasonable to the extent that it exceeded 97*^0. Repara- tion awarded. Diamond Coal & Coke Co. V. B. & O. R. R. Co., 22 L C. C. 129, 130. (b) On a carload of car wheels and axles from Marshall, Tex., to Holdup, La., the legally applicable fifth-class rate of 69c on a minimum of 24,000 lbs. was assessed. A rate of 24c ap- plied between the same points in the opposite direction. Defendants assured complainant that if he would let his shipment go forward at that rate they would join with him in an application to the Commission for reparation on the basis of 24c. The distance was 178 miles. No unusual difficulties were connected with the construction or operation of defendants' lines. HELD, reparation should be awarded on the basis of 24c, minimum 36,000 lbs. Cro- well & Spencer Lumber Co. v. T. & P. Ry. Co., 17 I. C. C. 333, 334. §59. Catsup. (a) The rate on catsup in tin, glass or earthenware, boxed, under a mini- mum of 40,000 lbs., was 85c from coast terminals to the Missouri River and east; from Salt Lake City the rate was $1.28 to the Mississippi River and $1.33 to Chicago, minimum 36,000 lbs. HELD, that the present rates to the Mississippi River and Chicago are unreasonable to the extent they exceed 85c, minimum 40,000 lbs. Commercial Club of Salt Lake City v. A. T. & S. F. Ry. Co., 19 I. C. C. 218, 225. §60. Cement. (a) A rate of $1.35 per ton on cement, Martin's Creek, Pa., to Phila- delphia, Pa., 90 miles, was defended as against a rate to Jersey City, 114 miles, of $1.10 per ton, on the ground that at Jersey City the defendant had two public team tracks where carload freight was delivered, while at Philadel- phia it had about 60 team tracks dis- tributed about the city within a "track mileage of about 400 miles. HELD, terminal facilities such as these are entitled to weight in the consideration of the reasonableness of the rate, and where the commodity is of the weight and bulk of cement, such facilities broadly distributed are of value to the consignees in that the amount of cartage is not nearly so great as if deliveries were confined to one or two points. Cement is a commodity which under every consideration is entitled to a low rate. It loads easily to the marked capacity of the car and is liable to but little loss by damage in transit. The rate to Phila- delphia is unreasonable to the extent it exceeds $1.10 per ton. Maritime Ex- change V. Penn R. R. Co., 21 I. C. C. 81, 84. (b) Complainants shipped carloads o'f cement from Fordwick, Va., to Hope Mills, N. C, and were assessed a rate of 22i/4c per 100 lbs. The shipment could have been carried to Wilmington and then reshipped to Hope Mills, involving an out-of-line haul of 272 miles under rates aggregating 19i^c per 100 lbs. HELD, that although the facts do not present a situation where a joint through rate exceeds the combi- nation of intermediate rates between the same points, substantially the same principle is involved, and as a rate of 19V^c would yield a revenue per ton mile of 9.1 mills, it should be consid- ered a reasonable rate. Reparation awarded. Carolina Portland Cement Co. v. C. & O. Ry. Co., 21 I. C. C. 533, 535. (c) Cement is sold on a small margin of profit and a very slight difference in rate deflects the tonnage. Great Western Portland Cement Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 454. §61. Chautauqua Outfits. (a) Complainant sought the establish- ment of a carload classification and minimum weight on shipments of "Chau- tauqua outfits," consisting of tents, poles, camp-chairs, etc. Prior to the filing of this petition it had been pay- ing the less-than-carload rate. Each REASONABLENESS OF RATES, §62 (a)— §66 (a) 621 outfit was shipped in one car, weighing about 18,000 lbs., loaded and unloaded by the shipper. HELD, a carload rating on Chautauqua outfits should be estab- lished, not higher than fifth class, mini- mum 20,000 lbs. Redpath-Vawter Chau- tauqua System v. A. T. & S. F. Ry. Co., 22 I. C. C. 135, 137. §62. Cheese. (a) Complainant attacked the rates on cheese from points in southwestern Wisconsin on the C. & N. W. and C. M. & St. P. R. Rs. to Chicago. By adjustments in 1899 and 1902, the cheese rates had been raised from these Wisconsin points to Chicago from about 20c on carload and less-than-carload shipments to 22i^c on carload and 28c on less-than-carloads. The special ex- penses attached to the transportation of cheese were: That about 75 per cent of the cheese shipments moved in less- than-carload lots; these were delivered in special refrigerator cars and iced at the carriers' expense, and special cars were required on account of the contaminating odor. The rates in ques- tion to Chicago were from 11 to 61 per cent higher than from Indiana points to Chicago, equally distant; from 7 to 56 per cent higher than from Michigan, points to Chicago, equally distant; and higher than the rates for hauls of equal length between points In Ohio and Indiana, Ohio and Michi- gan, New York and Pennsylvania, and eastern Wisconsin and Chicago. The rates attacked were by these compari- sons excessive by from 6 to 80 per cent. The cheese tonnage from south- western Wisconsin was extraordinarily dense. Concentration in transit privi- leges were allowed only on intrastate shipments in Wisconsin, and these privileges did not account for the higher rates attacked. HELD, the rates com- plained of were unreasonable and should be reduced. Railroad Commission of Wisconsin v. C. & N. W. Ry. Co., 16 I. C. C. 85, 88, 90, 91. 863. Cheese Boxes. (a) Complainants shipped cheese boxes, Richland Center, Wis., to Dodge- vllle. Wis., under a combination rate of 341^0 via the C. M. & St. P. R. R. and the I. C. R. R. Subsequently a Joint commodity rate of 17l^c was es- tablished which equalized an intrastate rate via the C. M. & St. P. and C. & N. W. R. Rs. The distance by the Intrastate route is 104 miles, by the interstate route, 168 miles. The intra- state rate was ordered by the Wiscon- Bin R. R. Commission. HELD, that de- fendants should not be required to ac- cept for the transportation performed the rate of 17i/^c deemed reasonable over a much shorter route, but that the rate was unreasonable to the ex- tent that it exceeded 28 ^^c. Repa- ration awarded. Parfrey v. C. M. & St. P. Ry. Co., 20 L C. C. 104. §64. Cinders. (a) On carloads of mill cinders from Chicago to Omaha, complainant was as- sessed $2 per net ton through an error In the tariff, the intention being for the rate to apply per gross ton, which correction was made soon after the shipment in question. HELD, the rate charged was unreasonable. Reparation awarded on the basis of the per gross ton rate. American Trust & Savings Bank v. C. M. & St. P. Ry. Co., 17 I. C. C. 11. §65. Clam Shells. (a) On a shipment of a carload of clam shells from Mendota, Minn., to LaCrosse, Wis., complainant was charged 20c a 100 lbs. Mendota was six miles from St. Paul. Shortly after this shipment one of defendants es- tablished a commodity rate of 8c from St. Paul to LaCrosse, and of 6c from LaCrosse to St. Paul. The combination of local rates between Mendota and LaCrosse based on St. Paul through Elroy was 9.9c. For a short time after the shipment in question another car- rier published a commodity rate of 8c from Mendota to LaCrosse. HELD, the rate charged was unlawful and com- plainant was entitled to reparation on the basis of the 8c rate. Wisconsin Pearl Button Co. v. C. St. P. M. & O. Ry. Co., 16 L C. C. 80, 81. §66. Class Rates. (a) The complainant alleged that the class rates from Minneapolis, Minn., to Denver, Colo., were unjust and discrimi- natory as compared with class rates from St. Ix)uis, Mo., and Chicago, 111. The class rates attacked taking the first five classes as typical, were to Chicago and common points and to Minneapolis, 180, 145, 110, 85 and 67c and to St. Louis and common points, 162, 127, 101, 80 1/^ and 63c for 622 REASONABLENESS OF RATES, §66 (b)— (dd) the first five classes respectively. At the time of the complaint the rates from Minneapolis and Chicago were the same, being higher than the rates from St. Louis, although for 12 years there existed practically the same rates from Minneapolis as from St. Louis. The distance from Minneapolis is less than from either Chicago or St. Louis. The testimony of Minneapolis manufacturers indicated that they could not compete at the existing rates with similar en- terprises in St. Louis. HELD, the rates applicable to the first ten classes as published from Minneapolis to Den- ver are excessive and unreasonable and should not exceed 162, 127, 101, 80i^ and 63c for the first five classes taken as typical. The class rates from Minneapolis should not exceed those from St. Louis. Minneapolis Traffic Ass'n V. C. B. & Q. R. R. Co., 22 L C. C. 259, 260. (b) Complainant attacked the class rates irom El Paso, Tex., to Phoenix, Ariz., as unreasonable. The rates for the distance of 433 miles were 216, 189, 172, 160, 132c, on classes 1, 2, 3, 4, 5, respectively. After the filing of the complaint the defendants reduced the rates as follows: 192, 164, 153, 133. 112c. HELD, rates complained of and those at present effective were unrea- sonable, and the following rates, based on the Western Classification, were just and reasonable: 165, 137, 122, 99, 83c. Maricopa County Commercial Club v. Maricopa & Phoenix R. R. Co., 22 I. C. C. 279. (bb) Complainant shipped two car- loads of leaf tobacco in bales, Ephrata Pa., to Richmond, Va. The lawfully published rate was 24c per 100 lbs. Subsequently a rate of 21c per 100 lbs, was published between these points by a different route to which defendants were parties. HELD, that on the rec- ord the class rate under which the shipment moved could not be declared unreasonable from the mere fact that a lower commodity rate was subsequently published. American Cigar Co, v. P. & R. R. R. Co., 20 I. C. 0. 81, 82. (c) A rate should not be relatively higher In the case of an article which Is generally given a commodity rate than In the case of articles which are carried at class rates. Scheuing v. U ^ JsT. JR, R, Co., 20 I. C. C. 550, 552. (d) Complainant attstcked the C. L. and L. C. L. class rates, Billings, Mont., to points in Wyoming on defendant's main line as far as, and including, New- castle, Wyo., 321 miles distant, and to all points on defendant's branch lines extending from Toluca, Mont., to Cody, Wyo., 174 miles distant, and from Frannie, Wyo., 131 miles distant, to Kirby, Wyo, 242 miles distant from Billings. The L. C. L. first-class rate, Billings to Newcastle, was $1.55 per 100 lbs.; to Dakoming, 20 miles farther distant on the same line, $1.61; to Edgemont, 24 miles still farther dis- tant, $1.38. Rates on the C. B. & Q. R. R. from Cheyenne, Wyo., for approx- imately equal distances were materially less, as were rates on the O. S. L. R. R. from Boise, Ida., and on the N. P. Ry. from Fargo, N. D. The defendant's rates from Billings to Sheridan and from Sheridan to Billings in opposite directions over the same track, and not on long and heavy mountain grades, differed in that the rate from Sheridan to Billings on first class was 66c, and from Billings to Sheridan, 91c, the other '•ates being proportionately higher. HELD, that since defendant's rates from Billings to the Wyoming points 'n question are higher than rates from and to any other points for similar distances on defendant's system, and are much higher than are applied gen- erally from and to points on lines of other carriers in the same general ter- ritory, they should be reduced accord- ing to the schedule made out by the Commission, making the first-class rate ^o Frannie 66c; to Newcastle, $1.21; Cody, 80c; to Kirby, $1, and the other rates In proportion. On L. C. L. ship- ments from Sheridan to points on the branch line south of Toluca they should not exceed those from Billings by a differential of more than 8c for first class and others in proportion. Reparation denied. Billings Chamber of Commerce v. C. B. & Q. R. R. Co., 19 I. C. C. 71. (dd) Complainant attacked the class rate from Sacramento, Cal., eastward to all points upon the main line of the S. P. Co. in the states of Nevada and Utah up to but not including Ogden. The first-class rate from Sac- ramento to Reno, 154 miles, was $1.29 and gradually increased from Reno eastward, until at Moline, Nev., the first-class rate was $1,725, which ratQ REASONABLENESS OP- RATES, §6« (e)— (f) 623 obtained as a maximum up to Cecil Junction, Utati, 1 mile west of Ogden. The Sacramento-Ogden rates were on a lower scale, the first-class rate be- ing $1.54. The rates between Sacra- mento and Reno were higher than on any other main line in the United States. HELD, the class rates east- bound out of Sacramento are practi- cally without precedent or parallel. The class rates to Reno and all stations east thereof up to and including Love- lock from Sacramento are unreason- able to the extent they exceed 85 cents first class; to points east of Love- lock to and including Elko, $1.15 first class; points east of Elko, including Cecil Junction, Utah, ^1.54 first class (other classes reduced proportionately), the rates prescribed to be governed by the Western Classification. Traffic Bu- reau of Merchants Exchange v. S. P. Co., 19 I. C. C. 259. (e) Complainants attacked the class rates in both directions between Chi- cago, Mississippi River and Missouri River rate territories upon the one hand, and Utah common points upon the other, and also the westbound com- modity rates. The westbound class rates from Chicago ranged from first class $2.85 to 58c class E; from the Mississippi River, $2.65 first class to 53c class E; from the Missouri River, $2.05 first class to 42c class E. HELD, that the rates attacked were abnormal and unreasonable to the extent that they exceeded first class from Chicago, Mississippi River and Missouri River, $2.45, $2.27 and $1.90, respectively; other classes reduced proportionately to class E, which is reduced to 52c, 48c and 42c, respectively. Commercial Club of Salt Lake City v. A. T. & S. F.Ry. Co., 19 I. C. C. 218, 223, 224. (ee) Complainants attacked the class rates from Portland east to points in Washington, Idaho and Montana, and from Seattle and Tacoma to points in Oregon, Idaho and Montana. It appeared that jobbers and wholesale merchants in the three cities could sell goods to points about 100 miles west of Spokane and east en the O. R. & N. and O. T. Line as far as Arcadia, which is midway between Portland and Salt Lake City. The rates from Seattle and Tacoma to various repre- sentative points east on the N. P. R. R. earned about 6Hc per ton mile first class to about 1^/4 c class E. From Seattle, Wash., to representative points on the Great Northern Ry. the earn- ings per ton mile first class ranged from 5.69c to 7.32c, 1.42c to 1.14c, class E; from Portland to representative points on the O. R. & N. Co. and O. S. L. R. R. Co., from 5.72c to 8.99c first class, and from 1.20c to 1.82c, class E. These rates were considerably higher than the class rates westbound for similar dis- tances from the eastern terminals of the N. P., Gt. N. and U. P. R. Rs. Other things being equal, the coast cities could sell on the several lines to the points where the c. 1. rate to the coast plus the 1. c. 1. rate back equaled the 1. c. 1. rate from the middle western jobbing center with which jobbers at the coast competed. HELD, upon con- sideration of the whole record, as well as the facts stated in the opinion, the present interstate class rates exacted by defendants for transportation from Seattle, Tacoma and Portland to points in Washington, Oregon, Idaho and Mon- tana are unreasonable and that sub- stantial justice can be accomplished only by a horizontal reduction of the class rates of not less than 20 per cent. Portland Chamber of Commerce V. O. R. R. & Nav. Co., 19 I. C. C. 265. (f) The highest main-line rates to be found in the United States were those from eastern points to stations in Ne- vada. For carrying a carload of first- class traffic containing 20,000 lbs. from Omaha to Reno, the U. P.-S. P. line charged $858. If a like carload was car- ried 154 miles further to Sacramento, the charge was but $600. The first-class rate to the more distant point, Sacra- mento, was $3 per 100 lbs., and to the nearer point, Reno, $4.29 per 100 lbs. If a light carload of freight originated at Denver, 500 miles west of Omaha, the same rates to Reno and Sacramento applied, and if the freight originated at Boston, 1,700 miles east of Omaha, the rates were the same. This arose be- cause the whole of the United States from Colorauo common points to the Atlantic seaboard, barring a few of tlie southeastern states, was one wide group or zone from which practically uniform rates to Pacific coast water points were made, and the rates to Reno were based upon these blanket rates to coast cities and amounted to the sum of the rates to the coast plus the local rates back to point of destination. Formerly 624 REASONABLENESS OF RATES, §6G (ff)— §67 (b) Nevada traffic, save to the mines on its westernmost border, was but trifling. At present, however, Nevada had a traffic, both freight and passenger, which was far too considerable to be overlooked under the rule de minimis. Upon freight shipped from Boston, New York, Chicago, St. Louis or Omaha to Sacramento or to Reno, the carriers east of Ogden received precisely the same earnings on both shipments, but the S. P. Co. west of Ogden received far more upon the Reno shipment than on the Sacramento shipment. HELD, the time has come when the carriers west of the Rocky Mountains must treat the intermountain country upon a different basis from that which has hitherto obtained. Nevada cannot to the fullest extent be given rates as low as those given to Sacramento, be- cause in making rates to Reno from a territory as large as that of the east, consideration must necessarily be given to existing rates to other intermediate points and to points upon the Pacific. The class rates to Reno and points east thereof, through but not including Winnemucca, from groups of eastern defined territory are unreasonable first class (other classes reduced proportion- ately) to the extent they exceed the following from Denver and other points in group J, $2.10; Grand Island and other points in group G, $2.30; Omaha and group F, $2.50; Clinton and group E, $2.80; Chicago and group D, $2.90; Cincinnati-Detroit common points, $3.05; Pittsburgh-Buffalo common points, $3.20; New York common points, $3.50. Rates to Winnemucca and points east thereof to the Nevada-Utah state line reduced about 5 per cent less than the forego- ing. Commodity rates reserved for fur- ther consideration. Railroad Commis- sion of Nevada v. S. P. Co., 19 I. C. C 238. (ff) Complainant attacked the local rates from Roanoke to Lynchburg, Va., and to Winston-Salem and Durham, N. C. The local rate from Cincinnati to Roanoke, a distance of 456 miles, was G2c per 100 lbs. first class, and for the haul of 122 miles from Roanoke to Winston- Salem 61c was charged. It was admitted by the N. & W. R. R. at the hearing that to no point on its line were as high rates made, mileage alone considered, as applied to Winston-Salem and Durham from Roanoke and Lynchburg, respect- ively. HELD, that the first-class rate should not exceed 52c. Other classes proportionately reduced. Corporation Commission of North Carolina v. N. & W. Ry. Co., 19 L C. C. 303, 311, 312. (g) Phoenix, Ariz., asked for the es- tablishment of class rates to that city from points within eastern defined ter- ritory lying between the Missouri River and the Pittsburgh-Buffalo line. The first-class rates were as follows: From Kansas City and St. Louis, $3.41; from Chicago and Cincinnati, $3.61; from Pittsburgh, $3.91. HELD, that the first- class rates are unreasonable to the extent they exceed, from Kansas City, $2.50; St. Louis, $2.80; Chicago, $2.90; Cincinnati, $3.05; Pittsburg, $3.20; other classes reduced proportionately. Mari- copa County Commercial Club v. S. F. P. & P. Ry. Co., 19 I. C. C. 257, 258. (gg) The through class rates from Chicago to Ottumwa, la., are found to be unreasonable as compared with the pres- ent class rates from Chicago to Burling- ton, and as compared with the rates pre- viously in effect to Ottumwa, and the first and second class rates of 61c and 50c, respectively, are ordered reduced to 56c and 46c respectively. Ottumwa Com- mercial Ass'n V. C. B. & Q, R. R. Co., 17 I. C. C. 413, 415. (h) Rates from Dow, Lowe, Gowan, Alderson, Holdenville, Wilburton and Haileyville, Okla., on coal to Goltry, Okla., are not shown to be unreasonable. Haines v. C. R. I. & P. Ry. Co., 13 I. C. C. 214, 219. §67. Coal. (a) The petition attacked a through rate of $4.15 on coal from Gallup, N. ^I., to Tempe and Mesa, Ariz. HELD, the rate of $4.15 is excessive. Rate of $3.60 per ton is prescribed as a maximum for the future. Maricopa County Commercial Club v. Phoenix & Eastern R. R. Co., 22 I. C. C. 221. (b) The rate of $2.10 per ton on coal from Coal Creek, Tenn., to Au- gusta, Ga., was attacked as unreasonable and prejudicial as compared with rates to Macon, Athens, and Atlanta, Ga. Augusta is a manufacturing center com- '>eting with Macon, Athens and Atlanta. \ugusta used 76,000 tons of coal, of which 45,000 tons came from Coal Creek and 30,000 tons from Pocahontas, Va. Prior to 1907, the rate was $2.05 per ton. The evidence did not show the cost of service, the amount of the in- REASONABLENESS OF RATES, §67 (c) — (g) 625 vestment or the amount of earnings necessary to insure a reasonable in- come. The rates to Augusta and Ath- ens were shown to be higher per ton mile; the rate to Macon was one-tenth of a mill lower. The Coal Creek-Au- gusta rate and other rates were the result of the' competition between car- riers serving various coal fields. The service from Coal Creek involved ex- pensive mountainous transportation. The rate from the Jellico mines in Tennes- see on shipments through Coal Creek to Augusta produced a revenue of 5.5 mills per ton mile. The rate from Coal Creek produced a revenue of 5.7 mills. The rate from Pocahontas to Winston-Salem of 8.2 mills per ton mile was established by the Commis- sion. A rate from Coal Creek to Spar- tanburg, S. C, of 7.8 mills per ton mile was established by the Commission. IMacon, Athens and Atlanta got a con- siderable portion of their supply from other points. Coal Creek rates were based on Birmingham, Ala., rates with an added differential of 15c per ton. The reasonableness of this differential bad been adjudged by the Commission. A reduction in Coal Creek-Augusta rates would necessitate reductions from nu- merous other points in Tennessee, Vir- ginia and Kentucky. HELD, that com- plainants' allegations of unreasonable- ness and prejudice are not sustained. Chamber of • Commerce of Augusta, Ga., V. S. Ry. Co., 22 I. C. C. 233, 238. (c) Defendant's present rates for the transportation of anthracite coal in carloads from the mines of complain- ants in the Wyoming region in Penn- sylvania to Perth Amboy, N. J., an average distance of about 165 miles, of $1.55 per gross ton on prepared sizes, $1.40 on pea coal and $1.20 on buck- wheat coal are unreasonable to the extent they exceed $1.40 on prepared sizes, $1.30 on pea coal and $1.15 on buckwheat coal, which latter rates are established as maxima for the future. Reparation awarded. Meeker & Co. v. L. V. R. R. Co., 21 I. C. C. 129, 162. (d) Complainants attacked an advance of 15c per ton, making a rate of $1.95, on coal from the Coal Creek fields in Ten- nessee to Spartanburg, S. C, effective Aug. 15, 1910. For 17 years this rate was $1.85. In 1909, to comply with the order of the Commission in the Black Mountain Coal Co. case, 15 I. C. C. 286, establish- ing certain differentials from coal fields correlated to the Coal Creek fields, the defendants reduced the rate to $1.80. The average distance from Coal Creek to Spartanburg was 235 miles, and to the group taking the Spartanburg rate, 250 miles. At the rate of $1.80 the revenue per ton mile to Spartanburg was 7.6 mills, and to Spartanburg group 7.2 mills. At the rate of $1.85 the respective ton mile revenues were 7.87 and 7.4 mills, while at the rate of $1.95 they were 8.29 and 7.8 mills. HELD, the rate in question should not exceed $1.85 per ton. Carriers permit- ted to work out proper differentials be- tween the various districts. Reparation awarded. Victor Mfg. Co. v. S. Ry. Co., 21 I. C. C. 222. (e) Complainant, on shipments of coal from the Walsenburg District, Colo., to Salina, Kan., and thence to the Mis- souri River, asked reparation to the extent the charges exacted exceeded $3.50 a ton to Salina and $3.75 thence to the Missouri River. The same record was presented in the case of Cedar Hill C. & C. Co. V. C. & S. Ry. Co., 16 I. C. C. 387. HELD, for the reasons stated in that case, complaint dis- missed. Sunnyside Coal Mining Co. v. D. & R. G. R. R. Co., 19 I. C. C. 20. (f) The B. & M. R. R. made a pro- portional rate of 95c from Rotterdam Junction, Pa., to Holyoke, Mass., via the circuitous route of Greenfield and down the Connecticut Valley, on coal originating on the C. of N. J., Erie and the L. V. R. Rs. This proportional rate formed part of the joint rate of $2.80 charged by these carriers. On coal originating on the D. L. & W., the B. & M. charged its full local rate of $1.15 from Rotterdam Junction, the coal paying $2.45 to the D. L. & W. or a full through charge of $3.60 per ton. HELD, in the absence of other evidence as to the reasonableness of the $1.15 local rate, it could not be held unrea- sonable. Fisk & Sons v. B. & M. R. R., 19 1. C. C. 299, 301, 302. (g) Complainant shipped soft coal, C. L., Thomas, W. Va., to Tonopah, Nev., under a combination rate of $20.60 per ton, of which it attacked the rate of $7.30 for the movement from Omaha to Ogden. Defendant being willing to make refund on this basis, it was held that this particular part of the rate was unreasonable to the extent it exceeded 626 REASONABLENESS OF RATES, §67 (h)— (1) $5.25 per ton. Sligo Iron Store Co. v. U. P. R. R. Co., 19 I. C. C. 527, 528. (h) Complainant shipped blacksmith coal, C. L., Lilly, Pa., to Texarkana, Ark., under a rate of $2.50 per ton from Lilly to Cairo, 111., and $4.25 from Cairo to Texarkana. The latter rate is alleged to be unreasonable because there was in force at the same time a rate of $2.40 a ton on soft coal between those points. The distance between Cairo and Texarkana via the Iron Mountain R. R. was 399 miles, and the rate on soft coal referred to applied only from the Illinois mine, having been put in to meet competition of the Illinois Central and its connections. A few months after the shipment moved the soft coal rate was canceled so that at the present time the only rate in effect between these points on soft coal was $4.25. HELD, that smithing coal was of great- er value than ordinary bituminous coal, and that a higher rate might properly be applied to its transportation, and that the rate charged was not unrea- sonable, Sligo Iron Store Co. v. U. P. R. R. Co., 19 L C. C. 527, 529. (ij Complainant attacked the reason- ableness of defendant's separately es- tablished rate of 75c per gross ton for the transportation from Waverly, N. Y., to Binghamton, N. Y., of C. L. ship- ments of semi-anthracite coal originat- ing at Bernice, Pa., a distance of 39 miles. The bulk of the shipments was pea and buckwheat coal and screenings. HELD, the rate is unreasonable to the extent that it exceeds 65c per gross ton on the larger sizes and 55c on pea, buckwheat and screenings. Northern Anthracite Coal Co. v. D. L. & W. R. R. Co., 19 L C. C. 549. (j) Complainants attacked the rate of $2 per ton from East St. Louis, 111., to Omaha and South Omaha, Neb., on soft coal originating in Illinois. De- fendants had a rate of $1.80 in effect for a number of years. Owing to keen competition the rate had been subject to some severe fluctuations. Via the Wabash R. R., with a short-line mileage of 413 miles to Omaha, the revenue per ton mile was 4.84 mills, out of which must be paid a bridge charge of 20c per ton across the Mississippi and $4 per car across the Missouri. Via the M. P. Ry. the mileage was 487, revenue per ton mile 4.1 mills, out of which a bridge charge o^ 20c per ton must be deducted. The C. B. & Q. R. R. had two routes, its west side line having a mileage of 466.5 and its east side line 507.2, yielding revenue of 4.28 and 3.94 mills respect- ively. Via the west side line there was a bridge charge of 20c per ton. All of the defendants absorbed switching charges at Omaha and South Omaha, when coal was consigned to parties located on other roads. HELD, the rate complained of is not unreasonable. Complaint dis- missed. Breese-Trenton Mining Co. v. Wabash R. R. Co., 19 L C. C. 598. (k) The carload rate assessed by defendant on coal shipped from the Carbon Hill mines in Alabama to New Albany, Miss., was $1.10, yielding a per ton mile revenue of 9.7 mills, or an earning of at least $44 on a 40-ton car and $55 on a 50-ton car. The average revenue per ton mile for the entire coal movement of the six principal carriers in the southern coal field varied from 4.98 mills to 6.84 mills, that of defendant being 5.7 mills; and the revenue from all freight, for the same carriers, varied from 8.21 mills to 1.079c, that of the defendant being 9.79 mills. HELD, that the rate was unreasonable and that a rate of 95c, yielding a per ton mile revenue of over 8 mills and per car earnings of $38 for 40-ton cars and $47.50 for 50-ton cars, should be established for the future. Rainey & Rogers v. St. L. & S. F. R. R. Co., 18 I. C. C. 88, 90. (1) Complainants attacked the rate of $2.60 on slack coal in carloads from Gallup, N. M., to El Paso, Tex. At the time of shipment a $2.15 rate was in effect to Courchesne, a point 2^ miles from El Paso and intermediate to Gallup and El Paso, but no iraffic moved under this rate and it was in effect by a mistake of defendant. The $2.60 rate attacked yielded some 7 mills per ton mile. The $2 rate put into effect subsequent to the shipment in question by defendant yielded 4.5 mills. Defendant put the $2 rate in as an experiment for the purpose of inducing the use of slack by the electric rail- way and gas company at El Paso. The rate on lump slack was $2.60, which compared favorably with the rates generally pre- vailing in the region for similar distances and conditions. HELD, the $2.60 rate was not shown to be unreasonable. Within proper limitations carriers are justified in making low rates for traffic of this character, to induce movement which REASONABLENESS OF RATES, §67 (m)— (r) 627 would not otherwise occur and, gener- ally speaking, rates on lump and slack coal are the same in tro territory in- volved. Consumers' Ice Co. v. A. T. & S. F. Ry. Co., 18 I. C. C 277, 278. (m) On soft coal in carloads from Christopher, 111., to Ainsworth and Val- entine, Neb., a combinaticn rate of $4.45 per ton was collected based on the Bur- lington rate of 70c, Christopher to Pe- oria, and the C. & N. W. Ry. Co.'s rate of $3.75, Peoria to destination. The $3.75 portion of the clvar^e was at- tacked as excessive. Valentino and Ainsworth are 781 and 735 miles, re- spectively, from Peoria and 791 and 924 miles, respectively, from Christopher. The rate charged yielded 4.8 mills on the shipments to Valentine and 5.1 mills on those to Ainswortu. One year and one-half after the shipments moved defendants published latcs from Chris- topher to Ainsworth and Valentino of $4.10 and $4.25, respeoi.ively. No other evidence was offered except rate com- parisons, the bearing of which was not shown. HELD, the rate attacked was not shown to be unreasonabhi, and a yield of 5 mills per ton mile was not excessive in the territory involved. Sunderland Bros. Co. v. C. B. & Q. R. R. Co., 18 I. C. C. 512, 513. (n) Complainant attacked the car- load rate of $4 per ton on coal from Rock Springs, Kemmerer and Diamond- ville, Wyo., to Boise, Buhl, Filer, Hailey, Twin Falls, Gooding, Mt Home, Nampa, Caldwell and Wiser, Ida., and of $3.75 to Burley and Ruppert, Ida. The Kem- merer and Diamondville mines are on the Oregon Short Line in Wyoming. The Rock Springs mines are on the Union Pacific line in Wyoming, and 85 miles east of Kemmerer. Buite, Mont., is 437 miles from Kemmerer and 522 miles from Rock Springs; Anaconda is about 26 miles from Butte. Fjom the points of origin in questio.i to Butte and Anaconda the rates were $3.25 on lump coal and $3 on slack. Portland, Ore., is 906 miles from Kemmerer and 991 miles from Rock Springs. The rate to Portland was $4 per ton All coal transported to the Idaho destina- tions in question or to Butte and Ana- conda passed through Pocatello, and the conditions of transportation from the mines to Pocatello weri therefore precisely the same irrespective of the destination of the coal. Butte is 263 miles north of Pocatello, and the Idaho destinations in question are an average distance of 173 miles from Pocatello. The rates to Butte and Anaconda are carried back to all points intermediate from Butte to Pocatello as far as Idaho Falls, a distance of 213 railes. The average distance from the mines to the Idaho points in question is 389 miles and the average distance to Butte and Anaconda is 485 miles. The grades are steeper and of greater frequency on the line from Pocatello to Butte than from Pocatello to the Idaho points. Coal moved in solid trains and in greater volume to Butte and Anaconda than to the Idaho points. The average per ton mile on coal to the Idaho points under the rate attacked was 9.35 mills. The average revenue on all traffic on the defendant Oregon Short Line for a typical year was 9.51 mills. HELD, the rates attacked were excessive to the extent that they ex- ceeded $3.50 per ton. League of South- ern Idaho Commercial Clubs v. O. S. L. R. R. Co., 18 I. C. C. 562, 565. (o) Where blacksmith coal is mined only in the eastern states and can reach Portales, N. M., only from the mines or from distributing points like Chicago and reasonable through rates are in effect from the mines and distributing points, a rate from Pittsburgh, Kan., where such coal is not mined, to Portales is a mere paper rate and the Commission will not consider the question of its reasonableness. Sligo Iron Store Co. V. A. T. & S. F. Ry. Co., 17 L C. C. 139, 142. (p) The rate of $9.75 per ton on blacksmith coal from Chicago to Port- ales, N. M., is held not to be excessive on the basis of a comparison of rates to California, Arizona and other New Mexico Points. Sligo Iron Store Co. V. A. T. & S. F. Co., 17 I. C. C. 139, 143. (q) The rates on cannel coal from Mill Creek-Elk, W. Va., to points in Ohio, Illinois, Michigan and other states, having been satisfactorily adjusted by the application of commodity rates, and a reduction of some 10 or 15c per ton from former rates, on motion of complainant complaint is dismissed. Mill Creek Cannel Coal Co. v. Coal & Coke Ry. Co., 17 I. C. C. 306. (r) On shipments of steam and do- mestic coal from the Pocahontas, Va., fields to Winpton-galem and Durham, N. 628 REASONABLENESS OF RATES, §67 (s) — (v) C, at the published rate of $2.30 per ton, the ton mile revenue was respectively 9 and 1V2 mills. These North Carolina points were reached by branch lines of defendant. These rates were higher than to other points on defendant's sys- tem for similar distances and higher than most rates over other carriers serving the same section and yielded a higher per ton mile revenue than the average rate on all traffic on defendant's system. These rates were also much higher than to points located on defendant's main line, which were subject to competition. Defend- ant's system, as a whole, was earn- ing fair returns. The cost of hand- ling traffic over the Winston-Salem and Durham branches was higher than on other parts of the system on account of the prevalence of grades and sharp curves, and on account of the comparative lightness of traffic. HELD, that while the rates should not be reduced to equal those to points on or near the main line, they should not exceed $2.10 to Winston-Salem and $2.20 to Durham. Reparation denied. Board of Trade of Winston-Salem v. N. & W. Ry. Co., 16 L C. C. 12, 16. (s) On a shipment of soft coal in carloads from Christopher, 111., to Wausa, Neb., via Sterling, 111., $5.20 per net ton was charged on the haul from Sterling to Wausa. HELD, such rate was unreasonable to the extent it exceeded a rate of $2.70 per net ton. Reparation awarded. Sunderland Bros. Co. V. C. & N. W. Ry. Co., 16 I. C. C 212, 213. (t) On carloads of soft coal from Wellston, O., to Manitowoc, Wis., des- tined to points beyond, charges were as- sessed at the rate of $1.85 and $1.80 per ton. The rate from Wellston to ultimate destination was made up of the through proportional rate to Mani- towoc plus the charges of the connect- ing carrier beyond. Shortly before the shipments in question moved a rate of $1.65 was in effect which was re- stored shortly afterwards. The ship- ments might have moved via Milwau- kee at the cheaper rate, but a supply of coal had been purchased by complain- ant and ordered sent via Manitowoc when the $1.65 rate was in effect via that route, and the billing could not readily be changed. HELD, the rate charged was unreasonable. Reparation awarded on the basis of the $1.65 rate. Sunderland Brothers Co. v. Pere Mar- quette R. R. Co., 16 I. C. C. 450, 451. (u) Complainant miners, located in western Colorado at Cameo and South Canon, attacked the rates on coal from these -points to points in Utah, Nevada, California, Oregon, Washington, Idaho and Montana as unreasonable compared with rates from other producing fields served by defendants in Wyoming and Utah, especially Rock Springs, Wyo., and asked for the establishment of joint through rates. Comparison of the per ton mile revenue from the points in question showed that complainants were charged higher rates than their competitors. Special operating difficulti- ies were encountered by defendants in hauling coal from Cameo and Canon City, not met with at other producing points, such as high grades and sharp curves, which resulted in defendants being forced to carry a much lower tonnage per train than from other pro- ducing fields. The traffic from Cameo and South Canon moved from points of origin from 264 to 324 miles through desert country before reaching a junc- tion at which it might be delivered to a line reaching Nevada or California. Rock Springs was most favorably lo- cated with respect to the markets com- plainants desired to reach, being a local point on the Union Pacific. The car- riers connecting with the lines at Cameo* and South Canon were in poor financial condition and insufficiently equipped with cars to engage in joint trafiic. The rates attacked were, subsequently to the hearing, substantially reduced, al- though not to the point demanded by complainants. HELD, on account of the difficulties of transportation encoun- tered at Cameo and Canon City the rates attacked were not shown to be un- reasonable. Request for the establish- ment of joint rates and routes denied. Grand Junction Mining & Fuel Co. v. C. M. Ry. Co., 16 I. C. C. 452, 457. (v) Complainant attacked the rates on splint coal from Chicago and other Illinois points to Fort Dodge, la., as being unreasonable per se, and as com- pared with rates to Des Moines, la., and Albert Lea, Minn. Fort Dodge is lo- cated 50 miles northwest of the center of Iowa, 86 miles from Des Moines, and 375 miles from Chicago. Des Moines is 358 miles from Chicago, and 340 from St. Louis. Albert Lea is 119 miles from St. Paul, 100 northeast of REASONABLENESS OF RATES, §67 (w)— (aa) 629 Ft. Dodge, and 382 miles from Chicago. The coal in question was used in the manufacture of clay products at Ft. Dodge. The Chicago to Ft. Dodge rate was $1.85 per ton; from Chicago to Des Moines the rate was $1.60; from Chicago to Albert Lea, $1.40. The Chi- cago to Albert Lea $1.40 rate was made on the basis of the $1.40 rate from Chi- cago to St. Paul, the St. Paul rate being forced by the low rates to Duluth. The St. Louis to Des Moines rate on coal was $1.60 per ton, established by the Wabash, and this carrier also applied that rate from Springfield, 111., to Des Moines. The Wabash terminates at Des Moines. Other carriers, including defendant, were compelled to meet this $1.60 rate in shipments to Des Moines from Chicago and Illinois points. Indi- ana and Iowa keenly felt the competi- tion of Illinois in the production of coal. The lowering of the rate to Fort Dodge would compel a cutting of rates from Iowa and Indiana to prevent Illinois from monopolizing the Ft. Dodge trade, and a substantial reduction of rates to Ft. Dodge would drive many Iowa coal fields out of business. HELD, the conditions at Des Moines and Albert Lea were essentially different from those obtaining at Ft. Dodge, and the rates to the latter point should not be reduced. Fort Dodge Commercial Club T. L C. R. R. Co., 16 I. C. C. 572, 575, 577, 582. (w) Complainant, the city of Bristol, Tenn., attacked the rate of 85c on bi- tuminous coal from the Appalachia coal field in Virginia. For the past ten years defendants had fluctuated their charges greatly, but for a period of one year had maintained voluntarily a rate as low as 70c. This 70c rate was put into effect after a 75c rate had been main- tained for many years. The coal ton- nage was very heavy and had steadily increased. One of defendants for many years hauled coal from the Appalachia field through Bristol to Bluff City, a point 11 miles beyond Bristol, and ac- cepted as its division of the through rate from 50 to 60c a ton, which rate was admitted to yield a profit. It also hauled coke at 35c between the points in question, although this commodity ordinarily moves at a higher rate than coal. During the past ten years the principal defendant, a new^ line, had greatly prospered so as to make its shares of stock given as a bonus for bonds worth $200 per share. HELD, the 85c rate attacked was unreasonable and should be reduced to 75c. Board of Bristol, Tenn., v. V. & S. W. Ry. Co., 15 I. C. C. 453, 458. (x) Complainant attacked the rates on slack and on nut and soft coal from Pittsburg, Kan., to points in Oklahoma. A comparison of the rates in question with those prescribed by the Commis- sion in recent decisions respecting the territory west of the Mississippi failed to show that the rates attacked were excessive, nor were they unreasonable as compared with rates prescribed by the Oklahoma commission for similar distances from Oklahoma coal mines to points of destination in that state. Should the rates requested by com- plainant be granted, Pittsburg coal, on account of its inferiority as compared with Oklahoma coal, would not be able to compete seriously at Oklahoma points. HELD, the complaint should be dismissed. State of Oklahoma v. A. T. & S. F. Ry. Co., 14 I. C. C. 516, 519. (y) Rates on slack coal from Weir and Midway, Kan., to Goltry, Okla., should be somewhat lower than that on lump and should not exceed $1.50 per ton. Haines v. C. R. I. & P. Ry. Co., 13 J. C. C. 214, 219. (z) Following Johnston v. St. L. & S. F. R. R. Co., 12 I. C. C. 73, rates on coal from Hartford and Huntington, Ark., and Dow, Haileyville, Wilburton, Alderson, South McAlester, Prairie Creek, Craig, Howe, Bonanza, Hackett and Henryetta, Okla., to Kingfisher, Okla., are held not to be shown un- reasonable. Haines v. C. R. I. & P. Ry. Co., 13 I. C. C. 214, 217, 218, 220; Gentry v. C. R. I. & P. Ry. Co., 13 I. C. C. 257. (aa) Cannel coal, a variety of bitu- minous coal, is adapted for use only in grates. It costs $1 per ton to mine as against 53c on ordinary bituminous coal and sells at the mine for $2.75 as against $1.25 for other coal. It can be sold in many localities for a consider- ably higher price than other coals on account of its superior quality for use In grates and this gives it a much wider distribution than attaches to or- dinary soft coal. It does not move in large quantities to particular places. The loading is less both for physical and commercial reasons than obtains with bituminous coal. Defendant had in the past generally transported cannel 630 REASONABLENESS OF RATES, §68 (a)— §71 (a) coal at the ordinary bituminous coal rate. Complainant's mine had been de- veloped under that system of rates and its competitors were enjoying the soft coal rate. Nothing in the physical at- tributes of cannel coal served to dis- tinguish it from bituminous coal proper. HELD, the ordinary bituminous coal rate should be extended to cannel coal except to markets which the bitu minous coal proper could not be ex- pected to reach, in such case a higher chsirge being permissible. Goff-Kirby Coal Company v. B. & L. E. R. R. Co., 13 L C. C. 383, 385. §68. Coal-tar Paving Cement. (a) On coal-tar paving cement from Ensley, Ala., to La Grange, Ga., de- fendants assessed a class rate of 30c. This product is exactly the same as coal-tar pitch except for a slight differ- ence in consistency. It is liquefied by heat and poured into interstices be- tween stone blocks used for paving, and is also used for roofing purposes. HELD, it should take the same rate, 16.5c, as coal-tar pitch. Reparation awarded. Barrett Mfg. Co. v. L. & N. R. R. Co., 15 I. C. C. 196, 198. §69. Coal-tar Paving Pitch. (a) Complainant attacked the rate of 24c per 100 lbs. for the transportation of two carloads of coal-tar paving pitch from Carthage, O., to Birmingham, Ala. At the time of shipment defendants main- tained a rate of 19c from Cincinnati to Birmingham on asphalt in carloads and the same rate on tar and pitch classed as "naval stores." Under the same tariff the rate on tar and pitch or tar (coal) "paving or roofing" was 24c. Carthage is within the switching limits of Cincinnati and takes Cincinnati rates. Asphalt and pitch or tar are both ex- tensively used for paving and roofing purposes and are therefore competitive commodities. The cost of their trans- portation is practically the same and they are equally desirable as freight tonnage. HELD, the rate complained of was unreasonable and unjustly dis- criminatory to the extent that it ex- ceeded the rate of 19c contemporaneous- ly in force on asphalt via the same lines, and should not exceed such rate for the future. Reparation awarded. Southern Bitulithic Co. v. C. C. C. & St. L. Ry. Co., 21 I. C. C. 588, 590. §70. Coke. (a) On coke in carloads from Trini- dad, Colo., to Amarillo, Tex., a distance of 255 miles, complainant was assessed $3.35 per ton. The rate from Trinidad via Amarillo to Fort Worth, a distance of 591 miles, was $3 per ton. On soft coal the rate from Trinidad to Amarillo was $2.90 and to Fort Worth .$3 per ton. Shortly prior to the time ship- ments moved the rates on both coal and coke from Trinidad to Amarillo were the same, $3.35 per ton, but a re- duction to $2.90 was made in the coal rate. The rates generally in the terri- tory in question on coke were about equal to or slightly in excess of those on coal. No special equipment was re- quired for shipments of coke from Trini- dad to Amarillo, box or stock cars being employed. The rate of $3.35 attacked yielded 1.45c per ton mile. The aver- age rate received by one defendant on all business was 1.033c per ton mile and by another 9.11 mills. The average rate on all commodities in the entire country was 7.66 mills per ton mile. HELD, coke being a low-grade com- modity, the rate should not exceed be- tween the points in question the soft- coal rate of $2.90. Amarillo Gas Co. v. A. T. & S. F Ry. Co., 13 I. C. C. 240, 242. §71. Condensed Milk. (a) The petitioner attacked the rates on condensed milk from Creamery, Ariz., to various points in Arizona, New Mexico, Nevada and California. The following table gives the condensed milk rates complained of: Rates Com- plained of. Rates from Cream- Distance. C.L. L.C.L. ery, Ariz., to — Miles. Cents. Cents. Wickenburg, Ariz 63 35 43 Prescott, Ariz 146 77 89 Jerome Junction, Ariz.. 164 79 98 Parker, Ariz 174 82 98 Ash Fork, Ariz 203 88 102 Williams, Ariz 226 100 115 Flagstaff, Ariz 260 106 134 Kingman, Ariz 318 106 167 Needles, Cal 380 106 200 Gallup, N. M 446 106 214 Searchlight, Nev 463 134 238 Ludlow, Cal 495 106 215 Albuquerque, N. M 604 106 214 Complaint was also made of the con- densed milk rate from Creamery to Los Angeles, Cal. This complaint was based REASONABLENESS OF RATES, §72 (a)— §73 (b) 631 on the fact that the carload rate from Creamery to Los Angeles, a distance of 441 miles, was 65c, whereas the rate from Richmond, Utah, to Los Angeles, 896 miles, was 55c; from Portland, Ore., to Los Angeles, 1,197 miles, 47.5c, and from Kent, Wash,, to San Francisco, 94U miles, 38c. Since the filing of the com- plaint, however, the Richmond to Los Angeles rate had been increased to 97c, while the Creamery to Los Angeles rate had been reduced to 55c. HELD, the rates from Creamery to points named in the table above are unreasonable. The following rates are held to be rea- sonable : ■♦-' i^ *"• ^•^ 5 .2 to ® . Rates From Creamery, g S 3 tf 3 Ariz., to — Cents. Cents. Wickenburg, Ariz 24 31 Prescott, Ariz 40 52 Jerome Junction, Ariz 44 58 Parker, Ariz 46 60 Ash Fork, Ariz 50 65 Williams, Ariz 51 66 Flagstaff, Ariz 53 68 Ludlow, Cal 57 74 Kingman, Ariz 58 76 Needles, Cal 59 77 Searchlight, Nev 61 78 Gallup, N. M 66 84 Albuquerque 75 93 The rate from Creamery, Ariz., to Los Angeles is held to be reasonable. Maricopa County Commercial Club v. P. & E. R. R. Co., 22 I. C. C. 218, 220. §72. Corn Shucks. (a) Complainant shipped a carload of baled corn shucks, Alexandria, La., to Brownwood, Tex., under a rate of 56c per 100 lbs., a distance of 911 miles. A rate of 20c was in effect via shorter routes of 494 to 722 miles. At the time of shipment a rate of 20 cents was applicable on hay, an article analogous to corn shucks, via the shorter routes. HELD, the rate charged was not unrea- sonable. Browne Grain Co. v. F. W. & R. G. Ry. Co., 20 L C. C. 410. §73. Cotton. (a) Complainant attacked the less- than-carload rate of $1.67 on cotton from St. Louis, Mo., to Pueblo, Colo., to the extent that it exceeded 70c. De- fendant admitted the rate to be unrea- sonable to the extent that it exceeded $1.15. A rate of 70c was in effect from Helena, Ark., to Pueblo. Nothing in the tariff prevented it from applying from Helena via St. Louis. Such a route, nowever, was not a practical and reasonable one, since the initial carrier at Helena, the St. L. I. M. & S. Ry., had a direct haul from Helena to Pueblo in connection with the M. P. Ry., which haul did not pass through St. Louis. Subsequent to the shipment in question a 70c rate was established by defend- ants from St. Louis to Pueblo in order to enable St. Louis to compete with Helena. HELD, a 70c rate was not shown to be reasonable, but on defend- ant's admission the rate attacked was unreasonable to the extent that it ex- ceeded $1.15. Reparation awarded. Colorado Bedding Co. v. C. B. & Q. R. R. Co., 18 L C. C. 401, 402. (b) The rate on cotton from Okla- homa points to Kansas City was 55c to 571/^c; from Texas to Kansas City, 70c. The rate on cotton fabrics from Guthrie, Okla., to Kansas City was 55c; from Texas, 65c, on fabrics, any quantity, and 55c on duck, carload. Complainant, manufacturer of cotton goods at Kan- sas City, attacked such rates as unrea- sonable per se, and as giving Texa^s mills an advantage over complainant's mills at Kansas City in that there was a differ- ential of 5c in favor of the manufactured products from Texas to Kansas City over the raw cotton from Texas to Kansas City. The price of raw cotton in Okla- homa and Texas was fixed by the price at Liverpool, England, being the Liver- pool price less the cost of transportation from Texas and Oklahoma to Liverpool. The freight rate being 15c less to Liver- pool than from Oklahoma, the price of cotton was 15c higher in Texas than in Oklahoma. Consequently, complainant did not, in fact, purchase cotton in Texas. The 55c rate attacked from Oklahoma points to Kansas City yielded a per- on-mile revenue of 2.51c as against 2.35c md 2.56c yielded by the rates on "otton from Oklahoma points to St. '^ouis and Galveston, respectively, the haul to the latter cities being, however, longer. The rate attacked was higher than that on cattle, corn, wheat, or pe- troleum moving into Kansas City. The lower rates on these products were, how- ever, in part the result of competition 632 REASONABLENESS OF RATES, §74 (a)— §75 (a) between various cities for them, which competition did not exist with respect to cotton, the natural trend of which was to the East and to the South through the gulf ports. Under the 55c rate at- tacked, defendants were obliged to pay 10c for compression and for the charges for the haul to and from the compress. However, the rate attacked compared favorably with other rates on cot- ton throughout the country. HELD, since the rate on cotton from Texas to Kansas City was merely a paper one, no Texas cotton being in fact bought by complainant, no consideration should be given to the reasonableness of the differential of 5c in favor of manufac- tured products from Texas mills moving to Kansas, City, and that the 55c rate attacked on cotton from Oklahoma points to Kansas City was not unreasonable. Kansas City Cotton Mills Co. v. C. R. L & P. Ry. Co., 14 I. C. C. 468, 471-475. §74. Cotton LInters, Cotton-Shoddy Lin- ing. (a) Complainant shipped cotton-shod- dy lining from Philadelphia, Pa., to Chicago, 111., under a rate of 61c per 100 lbs., which was the rate applicable to dry goods in bales or boxes. Cotton- shoddy lining is used foi* the lining of horse blankets and is made of cotton of a v§ry low grade, including sweepings and linters. One of the defendants ad- mitted that this traffic should have taken the cotton piece goods rate, which was 45c. HELD, the rate was unreasonable to the extent it exceeded 45c. Repara- tion awarded. Johnson Co. v. Clyde S. S. Co., 19 L C. C. 512. (b) The rate on compressed cotton linters via lines of defendants from Alice- ville, Ala., to Philadelphia, Pa., carload, released to a valuation of 2c per lb., is unreasonable to the extent that it ex- ceeds 82c per 100 lbs. Du Mee, Son & Co. V. A. T. & N. R. R. Co., 19 I. C. C. 575. §75. Cotton Seed and Products. (a) The rates on cotton seed from va- rious points on defendants' lines in Mis- souri, Oklahoma and Louisiana to Mem- phis, Tenn., were attacked as unreason- able per se, and as discriminatory in fa- vor of St. Louis, Mo., and East St. Louis, 111., and various mill points in Arkansas, Louisiana and Oklahoma. Complainants, dealers in cotton seed at Memphis, con- tended that these rates should be estab- lished on a distance basis, using the rates of the "Arkansas court tariff." Several years previously the Arkansas intrastate rates were fixed in accordance with a suggestion of the Federal Court as a compromise rate. All of the roads ex- cept the St. L. I. M. & S. Ry. and the St. L. S. W. R. R. agreed to try these rates for one year. At the expiration of the year the carriers asked for a rein- statement of their former cases, and re- newed the litigation. The Merchants' Freight Bureau of Arkansas and the Ar- kansas Cotton Seed Association inter- vened, resisting especially the petition to have the Arkansas court tariff taken as a basis for interstate rates. More cot- ton seed was crushed at Memphis than any other point, due to its central loca- tion. The strongest competition com- plainants met in the purchase of cotton seed was that of the St. Louis and East St. Louis mills, especially those on the Frisco line. Competition at stations on the Iron Mountain Railway was principally from local mills. Shipments on the Iron Mountain were made on commodity rates lower than the class rates in effect to Memphis. The Iron Moun- tain Ry. explained this by saying that Memphis was provided with a full line of commodity rates from Arkansas, Louisiana and Oklahoma points. Its main supply was obtained at low rates from Arkansas, whereas St. Louis was limited to southeastern Missouri and northern Arkansas. Rates to Arkansas local points were fixed by the court tariff, while rates to Memphis were those higher rates voluntarily established under interstate tariffs. Rates to St. Louis were much lower per mile than to Memphis. Defendants admitted that St. Louis rates were "ab- surdly" low. The Iron Mountain Ry. de- clared it was prevented from raising St. Louis rates by complaints from St. Louis. The St. L. & S. F. Ry. defended its rates on the ground that they were fixed when it came into that territory, and it met the conditions as it found them. No cotton seed moved to Kansas City now via the St. L. & S. F. Ry. Co. Mills located at Kansas City or St. Louis were so far from cotton territory that they could not survive on reasonable rates. St. Louis mills were established when the in- dustry was young and not strongly com- petitive. A statement of the movement of cars of cotton seed on the Frisco from Missouri points for the year 1910-1911 showed 41 to Memphis, 121 to East St. Louis and 61 to St. Louis, at an average REASONABLENESS OF RATES, §75 (b) — (c) 633 distance of 112, 213 and 214 miles, re- spectively. Many of the rates com- plained of were established for the pur- pose of protecting local mills. The St. L. & S. F. Ry. alleged that the rates were not higher than tlie Texas commission rates, or the interstate Oklahoma, Arkansas, Missouri rates. Rates were shown to be higher to Memphis than those on lines east of Memphis. The average rate per ton mile east of Memphis is 8.15 mills, while on the St. L. & S. F. Ry. it was 9.79 mills; the average density of traffic in tons on the east side was 817,839, while that of the St. L. & S. F. Ry. was 513,085 tons. Similarly, group five, embracing the east side, showed an 8.24 mill rate and a 629,050 tonnage density, as compared with group eight, embracing the west Bide roads, showing a rate of 9.81 miPs and a density of 508,557 tons. Prior to 1900 the voluntary rate to Mei..phis was lower. Milling points and points to which the seed and its products should go were largely controlled by the ownership of the gins and mills, irrespective of slightly higher freight rates. The ca- pacity of mills greatly exceeded the sup- ply. They operated only five months of the year. Other mills were being erected by manufacturers who used the products. A bridge arbitrary of li/^c per 100 lbs. was imposed on defendants. The rates from southeastern Missouri to St. Louis were state rates. They were not fixed by state authorities. HELD, in view of the fact the Arkansas rate is still in litigation and the St. Louis mills must necessarily go further for their supply, neither the Ar- kansas nor Missouri rates should apply. The rates to Memphis now In force on the Iron Mountain are unreasonable In so far as they exceed the rates In the table incorporated in the opinion. The rates on the Iron Mountain to Memphis points from points on its Oklahoma divi- sion. Greenwood Junction to Seminole, in- clusive, are discriminatory In favor of St. Louis, and those on the Frisco to Mem- phis are unreasonable and discriminatory In so far as they exceed the rates pre- scrlled In the opinion. :^eparatIon denied. Memphis Freight Bureau v. St. L. L M. & S. Ry. Co., 22 I. C. C 548, 555. (b) Complainants attacked defend- ants' rates on cottonseed roducts, in- cluding oil, meal, cake, hulls and linters, from various Oklahoma points to prac- tically all consuming territory. HELD, the rates to Galveston, Tex., should not exceed 27i/^c from points where the rate now charged Is 31i/4c; the rate from Ard- more, Durant, Madill and Tishomingo, Okla., to Galveston, Tex., should not ex- ceed 22*^ c. The rates from other Okla- homa points are unreasonable and dis- criminatory, but no formal order is cHr tered, and carriers are given 90 days within which to submit a scheme of rate adjustment. Anadarko Cotton Oil Co. v. A. T. & S. F. R. R. Co., 20 I. C. C. 43. (c) Complainant attacked the rates on cotton seed from Georgia producing points and one point in Alabama to Jack- sonville, Fla. From competitive points on the line of the Central of Georgia R. R., the defendants published joint rates which were approximately the same to both Savannah and to Jacksonville. From non-competitive points the lawful through charge was the combination of the local base point rate of the Central of Georgia R. R. to Savannah or other junction point plus the rate of its connec- tions beyond to Jacksonville. The com- plainant contended that the defendants ought t^ have established the same joint rates from the local stations to Jackson- ville as were applicable from the contigu- ous competitive points. In support of this view of what it regarded as a proper relation of rates, the complainant of- fered certain exhibits, one showing a comparison of the rates to Jacksonville with the rates to Savannah and Chat- tanooga, and another presenting a com- parison between rates on cotton seed and rates on cottonseed meal and hulls. HELD, that the rates of the Central of Georgia R. R. for a haul over its own rails from these prints of origin to Sa- vannah do not constitute a particularly helpful test of the reasonableness of the rates for a two-line haul to a point so dissimilarly located as Jacksonville. Nor can the reasonableness of the 'atrs from these non-competitive points of origin to Jacksonville, be tested by rates to the same destination from competitive points in this territory. Because of the differences In the conditions sur- rounding the traffic the rates to Chat- tanooga are also of doubtful usefulness as a measure of the reasonableness of (he rates to Jacksonville. Certainly none of the comparisons offered by the com- plainant sufficed to justify reductions in rates that are not otherwise shown to be unreasonable. FURTHER HELD, how- ever, that certain of the rates from va- rious points were unreasonable and should be reduced to such a basis that /he rate per 100 lbs. would run from 13c 634 REASONABLENESS OF RATES, §75 (d)— §79 (a) to 15i^c. Florida Cotton Oil Co. v. C. of Ga. Ry. Co., 19 I. C. C. 336, 339, 342. (d) Complainant shipped cottonseed oil, C. L., Orangeburg and Sumter, S. C. to Jacksonville, Fla., via the A. C. L. R. R., under a rate of 32c. The com- bination of local rates between Orange- burg and Jacksonville was 21i/4c, and be- tween Sumter and Jacksonville 22i/4c. At the same time the S. A. L. maintainel a rate of 17^c from Orangeburg and 1814 c from Sumter. The A. C. L. R. R. admitted that the charges exacted were unreasonable and all of the defendant carriers have since published a rate of 18c from Orangeburg and 18 14 c from Sumter. HELD, the rates were unrea- sonable to the extent that they exceeded the present rates. Reparation awar led. Florida Cotton Oil Co. v. C. of Ga. Ry. Co., 19 L C. C. 336, 342. (e) On a carload of cottonseed meal and hulls and one of cottonseed hull? shipped to Memphis, Tenn., from Little Rock and Pine Bluff, Ark., respectively, complainant was assessed a rate of lOo. At the time of the shipments the St, L. I. M. & S. Ry. maintained a rate of 6c between the same points, and four months after said shipments were made t^e Arkansas Freight, Committee filed a tariff naming a rate' of 8c on cotton- seed meal and cake, straight or mixed v!th hulls, to Memphis from the same points of origin. Over the St. L. L M. & S. Ry. this same tariff continued in effect a rate of 6c on cottonseed hulls and established a rate of 8c for the de- fendant. HELD, that the rate exacted was excessive to the extent that it ex- ceeded 8c. Memphis Freight Bureau v. St. L. S. W. Ry. Co., 18 L C. C. 67, 70. §76. Cotton Waste. (a) On carloads of cotton waste from Charlotte, N. C., to New York, N. v., complainant objected to a rate of 46c per 100 lbs. At the time the petition was filed, the rate had been reduced to 41c. A rail-and-water rate of 35c per 100 lbs. was charged from Augusta Ga., to New York, a longer distance. The same rate had been charged for cotton waste as for cotton goods, although it was much less valuable and required less care in handling it. HELD, that as the Augusta rate was determined by water competi- tion, it would not influence the decision of this case, but it was unreasonable to make the same charge for cotton waste as for cotton goods, and the rate should be reduced to 40c per 100 lbs. Repara- tion awarded. Southern At:antic Waste Co. V. S. Ry. Co., 22 I. C. C. 293. §77. Doors. (a) A rate of 19c was charged on carloads of doors from Dubuque, la., to Sioux Falls, S. D. At the time ship- ment moved a rate of 10c was in effect over a competing line, and shortly thereafter said 10c rate was established by defendant. Defendant admitted the rate exacted to be unreasonable. HELD, the rate charged was excessive. Repa- ration awarded on the basis of 10c. Far- ley & Loetscher Mfg. Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 602, 603. §78. Dried Fruit. (a) On a carload of dried fruit from Fresno, Cal., to Roundup, Mont., weight 38,100 lbs., complainant was assessed a rate of $1.66i/^ based on the following combination: From. Fresno to Lathrop, Cal., the local fourth-class rate of STVzc; Lathrop to Harlowton, Mont., $1; from Harlowton to Roundup, the local fourth- class rate of 29c. Complaint is made of the unreasonableness of the combina- tion rate of $1.37 1^ from Fresno to Har- lowton. HELD, following 16 I. C. C. ! 313, where the distance from Fresno to Billings, Mont., was 1,911 miles, as compared with 1,922 miles, the distance from Fresno, to Harlowton, and where a rate of $l.io yielded a return of 1.14c per ton mile, that the rate from Fresno to Harlowton, when the shipment was for a point beyond Harlowton, was un- reasonable. Reparation awarded on the basis of $1.10 from Fresno to Harlow- ton. Stone-Ordean-Wells Co. v. S. P. Co., 18 I. C. C. 15, 16. §79. Egg Case Material. (a) On a carload of material tied in bundles and not manufactured further than to be cut to length for egg cases, billed by the shipper as "box lumber," and rebilled by an inspector for one of the defendants as "egg case material," shipped over defendants' lines from Memphis, Tenn., to Woodward, Okla., via Oklahoma City, charges on the basis of the lawful through rate of 60c for "egg case material," including "egg boxes," were collected. Under the West- ern Classification, "egg box material" cut to length takes "box lumber" rates. When the shipment moved defendants had on box lumber, via route of move- REASONABLENESS OF RATES, §80 (a)— §81 (e) 635 ment, a combination rate of 44c; also a combination local rate via Alva, Okla., of 39c, Subsequently, the rate on "box lumber" from Memphis to Woodward via defendants' lines was 29c, but this rate to Woodward was later canceled, though box lumber rates still applied to egg case material. , The St. L. & S. P. R. R. Co.'s tariff in force at the time of the shipment from Memphis to points in Kansas, in the same section of the country as Woodward, Okla., produced a per ton mile revenue of from 8 to 8.62 mills. A rate of 29c from Memphis to Woodward would produce a revenue per ton per mile of 8 1-3 mills. HELD, that the rate was unreasonable and that for the future the rate should be 29c. Reparation awarded. Anderson- Tully Co. v. C. R. L & P. Ry. Co., 18 I. C. C. 48, 50. §80. Elm Hub Blocks. (a) On a carload of elm hub blocks in the rough from Will's Point, Tex., to Stockton, Cal., a rate of $1.25 was col- lected. The rate from Texarkana to Stockton was at the time of shipment 85c, and the movement from Texarkana was through Will's Point. In 13 I. C. C. 668, the Commission held that the rate on hardwood lumber from Chicago points and points farther west to Pa- cific coast terminals should not exceed 75c. The commodity in question Avas somewhat more valuable than hardwood lumber. The distance from Will's Point is considerably less than that from Chi- cago and Chicago points. Subsequent to the shipment the rate from Will's Point was reduced to 85c. HELD, the rate charged was unreasonable. Repara- tion awarded on the basis of 85c. South- ern Timber & Land Co. v. S. P. Co., 18 L C. C. 232, 233. §81. Fertilizer. (a) On carloads of fertilizer ma- terials from Ruston, La., to El Dorado, Ark., a rate of 7i/^c per 100 lbs. was charged. About a year later complain- ant showed that the through rate from New Orleans, La., to El Dorado, Ark., was reduced from 17i/^c to 12i/^c, but no corresponding reduction was made for part of the distance, Ruston to El Dorado, 56 of the 331 miles. Complain- ant sought reparation and the establish- ment of equal combination and through routes. HELD, that the charge was un- reasonable to the extent that it ex- ceeded 5c per 100 lbs., and that repara- tion be granted, but that the contention that the combination and through rates should be equal was without merit. El Dorado Oil Mills & Fertilizer Co. v. C. R. L & P. Ry. Co., 22 L C. C. 286. (b) On tankage, a fertilizer material, from Ottumwa, la., to destinations in southeastern states, the defendant line extending from Ottumwa to the Ohio River maintained a proportional rate of $2.80 per net ton, applicable on through shipments from Kansas City to Ohio River crossings. The proportional rate from Kan- sas City was $2.20 per net ton. After some years the Ottumwa rate was reduced to the same as the Kansas City rate. The haul from Ottumwa was a two-line movement, and the revenue under the reduced rate was 5.27 mills. HELD, the voluntarily reduced rate was a low one and no ground for reparation appears. Morrell & Co. v. C. B. & Q. R. R. Co., 20 L C. C. 400. (c) Complainant attacked the rate on commercial fertilizer, Shreveport, La., to Hamburg and Crossett, Ark., which took rates of 12i/^c and 16c, respectively, and are distant 152 and 149 miles. The St. L. I. M. & S. R. R. published a rate of 13c from Memphis to these points, 218 and 230 miles distant. HELD, that while mileage is not the only fac- tor to be considered in rate adjustment, commercial fertilizer is a lowrgrade traffic, and the rates to the points at- tacked are unreasonable to the extent they exceed lie per 100 lbs., C. L. Meridian Fertilizer Factory v. V. S. & P. Ry. Co., 20 L C. C. 554. (d) Defendants, carriers of fertilizer out of Memphis, Tenn., to points in Arkansas, established certain joint rates for carload and less-than-carload ship- ments. HELD, following V.-C. C. Co. v. St. L. S. W. Ry. Co., 16 L C. C. 49, that the rates were unreasonable to the ex- tent to which they exceeded certain reasonable rates established for the fu- ture on a mileage basis and ranging from 5c, C. L. minimum 30,000 lbs., for a haul under five miles, to 15c for a haul over 350 and less than 400 miles, the L. C. L. rates being double the C. L. rates. Reparation awarded. Virginia- Carolina Chemical Co v. St. L I. M. & S. Ry. Co., 18 I. C. C. 1, 2. (e) On carloads of manure from Chi- cago to Toledo, O., the sixth-class rate, 10c, was assessed. At the same time a 636 REASONABLENESS OF RATES, §81 (f)— §83 (c) commodity rate was in effect via an- other carrier of $1 per 2,000 lbs. About a year after the shipment this lower rate was made effective via the lines of defendants. HELD, the rate charged was unreasonable. Reparation awarded on the basis of the $1 rate. Crane Brothers v. C. H. & D. Ry. Co., 16 I. C C. 57L (f) On a carload of stable manure a charge of 55c p-er ton was assessed on the haul from Washington, D. C, to Glenndale, Md., 13 miles. Shortly prior to the shipment a rate of not to ex- ceed 45c was in effect between the points in question, and shortly after the shipment a rate of 40c was established by defendants. HELD, manure being a low-grade product, the 55c rate was unreasonable. Reparation awarded on the basis of 40c. White Water Farms Co. V. P. B. & W. Ry. Co., 13 L C. C. 526, 527. §82. Flaxseed and Oats. (a) On a mixed carload of flaxseed screenings in bulk and oats in bulk, the screenings weighing 40,650 lbs. and the oats 20,950 lbs., defendant exacted 7c on the flaxseed and 3c on the oats, minimum 30,000 lbs. Reparation was demanded to the extent that the charge on the flaxseed exceeded 3c and the charge on the oats exceeded the actual weight. Some two years after the ship- ment moved defendant put into effect the rates alleged by complainant to be reasonable, and at the hearing admitted the charges exacted to be unreasonable. HELD, reparation should be awarded en the basis claimed by complainant. Rot- sted Co. V. C. & N. W. R. R. Co., 18 L C. C. 257, 258. (b) On carloads of flaxseed from Britton, S. D., to Red Wing, Minn., com- plainant was assessed 26.5c. Shortly thereafter defendant put into effect a rate of 15.5c, and by its pleadings ad- mitted the rate exacted to be unrea- sonable. HELD, the rate charged was excessive. Reparation awarded on the basis of 15.5c. Red Wing Linseed Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 47. §83. Flour. (a) Millers in southern Illinois at- tacked the rates on flour and other grain products of 24.7c per 100 lbs. from their mills to Boston, an average distance of 1,000 miles, yielding a ton mile rev- enue somewhat less than 5 mills. HELD, the rates cannot be deemed excessive and are no higher, distance considered, than many approved by the Commission in Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C. 596. Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 L C. C. 672, 673. (b) On two carloads of flour from Turon, Kan., to Lake Charles, La., routed via Fort Worth, Tex., the fifth- class rate of 70c was charged, being the only rate applicable, the route be- ing specified by complainant. At the time shipments moved there was a rate of 421/^c over one route, and approxi- mately the same rate over other routes. Since the shipment a rate of 43c was put into effect over all routes. HELD, the charges were unreasonable. Repa- ration awarded on the basis of 43c. Monarch Milling Co. v. C. R. I. & P. Ry. Co., 17 I. C. C. 1. (c) On shipments of carloads of flour in February, 1908, from Windsor, Colo., to Eunice, La., and from Windsor to Opelousas, La., charges were collected to Eunice of the 77c class rate from Windsor to Midland, plus 5c beyond, and to Opelousas the class rate of 77c. Eunice is located on a branch line con- necting at Midland with the main line running between Windsor and New Or- leans. Opelousas is located on another branch of the main line, leaving the main line at LaPayette. Prior to Oct. 26, 1907, the rate from Windsor to New Orleans was 42 %c, this rate being ap- plicable at intermediate points. Ship- ments to Eunice and Opelousas took the 4234c rate, plus the locals from Midland and LaFayette, respectively. Oct. 26, 1907, the rate to Nejv Orleans was increased to 45c, but through a clerical error the tariff did not make that rate applicable at intermediate points. Effective March 20, 1908, this error was corrected, giving Eunice a rate of 50c, made up of the 45c rate, plus the arbitrary from Midland. The rate to Opelousas was thereby 59c by combination on LaFayette. Sept. 15, 1908, a new tariff established a rate of 57i^c to both Eunice and Opelousas. HELD, the charges assessed were un- reasonable. Reparation awarded on the basis of 50c and 59c on shipments to Eunice and Opelousas, respectively. Windsor Milling & Elevator Co. v. C. & S. Ry. Co., 16 L C. C. 349. REASONABLENESS OF RATES, §83 (d)— §84 (b) 637 (d) Prior to the shipment of rye flour in carloads from Janesville, Wis., to Kansas City, Mo., a rate of 13^c was in effect, and shortly subsequent to said shipment said 13i^c rate was restored. HELD, a rate in excess of said rate was unreasonable. Reparation awarded. Bowman-Kranz Lumber Co. V. C. M. & St. P. Ry. Co., 15 I. C. C. 277, 278. (e) Following Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 I. C. C. 31, the rate of 13c on flour from Buffalo to Providence is unreasonable to the extent it exceeds 12c. Thornton & Chester Milling Co. v. D. L. & W. R. R. Co., 13 1. C. C. 37. (f) Following Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 13 L C. C. 31, the rate of 13c on flour from Buffalo to Unionville, Conn., is declared unreason- able to the extent that it exceeds 12c. Washburn-Crosby Co. v. Erie R. R. Co., 13 L C. C. 38. (g) Following Banner Milling Co v. N. Y. C. & H. R. R. R. Co., 13 I. C. C. 31, the rate of lie on flour from Buffalo, N. Y., to Irvington, N. J., is declared unreasonable to the extent that it ex- ceeds 10c, that point taking the New York rate. Washburn-Crosby Co. v. L. V. R. R. Co., 13 L C. C. 39. §84. Fruits and Vegetables. (a) The carload rate of 42c and less- than-carload rate of 46c on vegetables N. O. S. from Charleston, S. C, to New York City, in place of the any-quantity rate of 45c in effect when the complaint was filed for packages holding :'/^ bushels, are not found to be unreasonable. It appearing there has been no change In conditions since prior decisions of the Commission on various phases of the rate adjustment between these points, and the new rates on the whole being lower than the any-quantity lates heretofore prescribed by the Commission from this district. Jouannet v. A. C. L. R. R. Co., 23 L C. C. 392. (b) In Florida F. & V. S. P. A. v. A. C. L. R. R. Co., 14 1. C. C. 476, the Commission held that the rates on fruits and vegetables from Florida base points to northern destinations were ex- cessive, but approved as reasonable the rates from Florida points of origin up to the base points. The gathering rates approved by the Commission were "any- quantity rates," In a supplementary proceeding, 17 I. C. C. 552, the Com- mission held that in the case of pine- apples distinction should be made be- tween C. L. and L. C. L. rates, and established a distance tariff upon the Florida East Coast Ry. for the trans- portation of pineapples in C. L. and L. C. L. from the various points of origin to Jacksonville when for points beyond. The present proceeding de- mands the establishment of C. L. rates upon fruits and vegetables from points of origin to basing points. Since the former decision the volume of business transacted increased, but such increase was offset by enlarged expenses of operation. Formerly, however, citrus fruits,^ to some extent, and vegetables to a m'uch greater extent, were shipped in small lots to Jacksonville, and there re- loaded for movement beyond. In mak- ing the former decisions the Commis- sion acted upon the expectation thai the commodities in question would move in small lots up to the base points; that consolidation would take place at that point, and the carload movement would, in fact, be mainly beyond the base point. This result was not brought about, and the shipper was compelled, in order to obtain the C. L. rate beyond the basing point, to present a full car- load at the point of origin, and the loading was being done mainly by the shipper instead of the carrier. The loading of the cars from the point of origin was much heavier in 1910 than at the time of the previous decisions. Complainants demanded that the dis- tance scale established for pineapples upon the Florida East Coast Ry. in the former decision should be applied to vegetables, and that the standard box of oranges weighing 80 lbs. and the standard box of vegetables weighing 50 lbs., five-eighths of the rate per box of citrus fruits should be applied per crate of vegetables. Vegetables are usually a more perishable commodity than cit- rus fruits and pineapples and require greater expedition and care in handling them. The loading of vegetables is also lighter. HELD, that the distance scale established for pineapples upon the Florida East Coast Ry. in the former opinion should be applied to the trans- portation of citrus fruits and pineapples to the base points upon the A. C. L. and the Seaboard Air Line railways; that the vegetable rate in carloads 638 REASONABLENESS OF RATES, §84 (c) — (e) should be, in crates, approximately 70 per cent of the orange rate per box when under ventilation, and 80 per cent under refrigeration; that the L. C. L. rate might exceed the ventilation rate 2c per standard crate up to dis tances of 100 miles, beyond that, by 3c, and that the carriers might at their option accomplish this result by estab- lishing C. L. rates up to base points or by establishing through C. L. rates from points of origin to points of des- tination in the North. Florida Fruit & Veg. Shippers' v. A. C. L. R. R. Co., 22 I. C. C. 11, 18. (c) In 19 I. C. C. 148, the Commis- sion held that the rate on lemons from southern California to territory east of the Rocky Mountains should not exceed $1. The Commerce Court in A. T. & S. F. Ry. Co. V. U. S., 190 Fed. 591, en- joined this order on the ground that the Commission in fixing this rate was not attempting to determine a reason- able rate, but was endeavoring to pro- tect California lemon growers against Sicilian competition. The Commission now points out, as the evidence upon which it based its former decision, that the carriers for parts of two years prior to the rendition of the former opinion, and for the entire preceding six years, had voluntarily maintained a rate ot $1 on lemons; that the carriers had for the better part of eight years volun- tarily maintained a rate on lemons, at first 25c, and subsequently 15c, lower than that contemporaneously in effect on oranges; that in its former decision it stated at considerable length the vari- ous elements in the evidence entering into a determination of the reasonable- ness of the rate on oranges; t-hat it in- tended the evidence relating to oranges to apply to the question of rates on lemons; that the carriers in the former case attempted to explain the lower rate in the past as being established for the purpose of meeting competition from Sicily; that the average haul on lemons was some 500 miles less than on oranges, and that a much smaller percentage of lemons than of oranges moved under the expense of refrigera- tion. The Commission, in addition, points out that it deems the orange rate of $1.15 an extremely liberal one, and that on account of the shipment of lemons under ventilation instead of under re- frigeration, the cars may be loaded to a minimum of 34,000 lbs. instead of to the former minimum of 26,200 lbs., thereby making the per car earnings at a rate of $1 amount to $340 as against earnings of $301.30 per car at the $1.15 rate under former minimum. With re- spect to the holding of the Commerce Court that the Commission had no au- thority to prescribe a blanket rate ex- tending from the Rocky Mountains east, the Commission points out that the car- riers themselves requested the rate to be fixed on the blanket plan. Under the blanket system the producers are given the widest possible market; the carriers obtain a certain amount of long distance business at remunerative rates which they would not otherwise have; and the freight does not so far enter into the cost of the articles to the consumer as to impose any notice- able burden upon any section of the country. To establish graded rates at this time would be to break up the blanket rate system, which is highly satisfactory to all parties concerned. HELD, the former $1.15 rate was un- reasonable and should not exceed $1. Reparation awarded. (Clark, Com'r, con- curring in part.) Arlington Heights Fruit Exchange v. S. P. Co., 22 I. C. C 149, 154. (d) Distance, while an important fac- tor in rate adjustment, cannot be ac- cepted as the sole or necessarily con- trolling factor. In the shipment of fruit, distance, time in transit and dispatch are prime considerations and of more than ordinary importance. These com- modities must be moved at the proper season. They are easily injured by ex- tremes in temperature. They must move promptly and expeditiously in order to reach points of consumption in desir- able and proper condition, and the best facilities and widest opportunities for their movement via available lines should be provided, within the limits of reasonable compensation for the service performed. Stacy & Sons v. O. S. L. R. R. Co., 20 I. C. C. 136, 138. (e) Rates on deciduous fruit in car- loads to points on the Northern Pacific R. R. in Montana may, and probably ought to, be given rates via Butte, Mont., or Silver Bow, Mont., from Logan, Brig- ham and Hot Springs, Utah, which in no case exceed either the rate to any North Dakota point or the combination of in- termediate rates on Silver Bow or Butte. Stacy & Sons v. O. S. L. R. R, Co., 20 I. C. C. 136, 138. REASONABLENESS OF RATES, §84 (f)— (g) 639 (f) Complainant alleged the short and expeditious route for transportation of apples and other deciduous fruits from Logan, Brigham and Hot Springs, Utah, to points on the Northern Pacific R. R. in North Dakota was via Silver Bow, Mont., and complained that defend- ants' present rates upon such shipments via Silver Bow, made in full combina- tion on that point, were unreasonable and discriminatory. Violations of sec- tions 1 and 3 of the Act were alleged in that defendants had failed or refused to establish reasonable through rates via Silver Bow. Defendants were parties to a rate of $1.25 per 100 lbs., carloads, on these commodities from Brigham, Logan and Willard, Utah, to certain North Dakota points, including Fargo and Bismarck, via Omaha and St. Paul, or Minnesota Transfer. The distance via this route from Brigham, the most representative shipping point, to Fargo, a representative destination, is 1,660 miles. The distance from Brigham to Fargo via Silver Bow is 1,250 miles, and the $1.25 rate was made up, 60c, Brigham to Silver Bow, and 65c, Silver Bow to Fargo. The rate on other deciduous fruits was $1.82^^, made up 70c to Silver Bow, and $1.12 J^, Silver Bow to Fargo. The N. P. R. R. rate on apples, North Yakima, Wash., to Fargo, was 75c; on other deciduous fruit $1.12 1/^; distance, 1,520 miles. The Great Northern R. R. rate, Wenatchee, Wash., to Fargo, on apples was 75c; on other deciduous fruits $1,121^; distance, 1,405 miles. The joint rate of the O. R. & N. Co. and the N. P. R. R. from Hood River, Ore., to Fargo, was on apples, 80c; on other de- ciduous fruits $1.25; distance, 1,65€ miles. Transcontinental lines, including defendants, carried a rate on deciduous fruits from California shipping points to Fargo and Grand Forks, N. D., via Omaha and the -Twin Cities, of $1.35. Defendants were willing to establish lower rates via the Silver Bow gate- way, but were unable to agree upon the division of the same, or the North Da- kota points to be included as destina- tions. Ordinarily defendants had lower rates on apples than on other deciduous fruits, but apples, where they carried a lower rate, had a higher minimum. Apples had a minimum of 30,000 lbs.; other deciduous fruits and mixed car- loads, from 20,000 to 24,000 lbs. HELD, complainant is entitled to the relief prayed for and defendants are required to establish a joint rate on deciduous fruits in carloads, including apples, from Hot Springs, Utah, via Silver Bow or Butte, Mont., to Grand Forks, N. D., not in excess of $1.25 per 100 lbs., and from Willard, Brigham and Logan, Utah, to Grand Forks, N. D., via Silver Bow or Butte, Mont., not exceeding $1.25 per 100 lbs., and from Hot Springs, Willard, Brigham and Logan, Utah, via Silver Bow or Butte, Mont., to Fargo, Wahpe- ton. Valley City, Jamestown, Bismarck and other intermediate points on the N. P. R. R. in North Dakota, not ex- ceeding in any case the rate prescribed from Hot Springs, Utah, to Grand Forks, N. D., and not exceeding in any case the combination of intermediate rates on Butte or Silver Bow. Minima in connection with foregoing rates not to exceed 30,000 lbs. on straight carloads of apples and 24,000 lbs. on other ship- ments. Stacy & Sons v. O. S. L. R. R. Co., 20 L C. C. 136. (g) Defendant's tariffs provided for class and commodity rates on import traffic from New Orleans, La., and Gal- veston, Tex., to certain Texas points, and applied only to commodities from "shipside." Bananas upon arrival passed into the possession of a terminal hand- ling company, which forwarded them by rail under bills of lading. Bananas took a commodity rate of 72c per 100 lbs. from New Orleans to Texas common points, a distance of nearly 600 miles, revenue per ton per mile 2.4c. This commodity is extremely perishable and did not move in solid trainloads to the points in question. From Galveston the same points are from 200 to 350 miles nearer than to New Orleans, and the rates were about 23c lower. The average revenue per ton per mile on bananas from New Orleans to points in Illinois, Iowa, Missouri and Kansas was 1.5c. The Class A rate from New Or- leans to Texas common points was 78c. HELD, that bananas are not moved by the rail carriers "from shipside" and hence not entitled to the import rate; that this commodity requires an ex- pedited service, with messengers in charge, who are returned free on regu- lar passenger trains, and hence this rate cannot properly be compared with rates on peaches, plums, apples, cab- bages, etc.; that as the traffic to the North moves in solid trainloads those rates cannot be compared with the Texas rate, and that the rates charged 640 REASONABLENESS OF RATES, §84 (h) — (1) by defendants were reasonable. Com- plaint dismissed. Waco Freight Bureau V. H. & T. C. R. R. Co., 19 I. C. C. 22. (h) Complainant shipped two car- loads of cabbage, Lewiston, N. Y., to Houston, Tex., on a rate of 74c west of Suspension Bridge, plus a local rate of 4V^c from Lewiston to that point. Prior to the shipments for several years a rate of 49c from Suspension Bridge to destination existed. A month after the shipments the 49c rate was re-estab- lished, and subsequently raised to 53c, at which it remained. HELD, the fact that defendants had for some time main- tained a rate of 49c and soon after these shipments moved reduced the rate from 74c back to 49c is in the na- ture of an admission that this rate was a fair one under the circumstances. Rep- aration awarded. Millar v. N. Y, C. & H. R. R. R. Co., 19 I. C. C. 78. (i) Complainant shipped apples, C. L., Seymour and Cedar Gap, Mo., to Minneapolis and St. Paul, Minn., a dis- tance of about 840 miles. Prior to Sept. 6, 1906, the rate from Seymour was 34c and from Cedar Gap 34i/^c. On that date and to Aug. 6, 1909, the rates were 41c and .42c, respectively, and on Aug. 6, 1909, were reduced to 31c. HELD, a presumption that 34c and 34 ^c were reasonable arose from the volun- tary act of the carriers in keeping them in effect for a long period of time, rendered stronger by the fact that these rates were voluntarily reduced to 31c. Reparation awarded for charges exacted in excess of 34c and 34i/^c. Gamble- Robinson Commission Co. v. St. L. & S. F. R. R. Co., 19 L C. C. 114; reparation awarded, Unrep. Op. 211. (j) Complainants attacked the orange rate from southern California to the East of $1.15 per 100 lbs. In the year 1908 to 1909 33,947 cars of oranges moved. One-sixteenth of the entire freight revenues of the Santa Fe sys- tem was from the handling of California citrus fruit. The movement to Chicago was equivalent to a solid train movement. The average number of loaded cars in •astbound trains for the first week of March, 1909, when the Commission made a test, was 30. Under the orange rate, had these cars been loaded with that fruit, the earnings per train mile would have been $4.25, against an average train mile earning upon the Santa Fe system for 1909 of $3.09. The equip- ment in which the traffic was handled was more expensive than the ordinary box car and the loading was lighter in comparison with the weight of the car. The schedule under which the traffic moved was between 10 and 11 miles per hour, including stops at divisonal points, which was nothing more than a fair merchan- dise schedule. Shippers were accorded the "diversion" privilege, which gives the right to change the point to which the car was consigned while in transit without additional expense. HELD, that while the Commission regards this traf- fic as highly profitable at the existing rate, yet on the whole at the present time it ought not to be disturbed. Ar- lington Heights Fruit Exchange v. S. P. Co., 19 I. C. C. 148. (k) Complainants attacked the rates, minima, and rules of transportation governing the movement of produce from the truck-farming district of Pon- chatoula. La., to Chicago, 111. In the season of 1909 2,260,949 lbs. of straw- berries, beans, lettuce, cabbage (these commodities being 90.34 per cent of the total produce tonnage) and other fruits and vegetables, moved from this district to Chicago. The rate on strawberries, C. L., was 61c per 100 lbs., minimum 18,000 lbs., but the record showed that this commodity cannot be safely loaded to this weight. The rate on beans was 52c, lettuce 58.5c and cabbage 44c. The minimum on vegetables and fruits gen- erally, except strawberries, was 20,000 lbs. HELD, that the rate on strawberries should not exceed 61c, minimum 17,000 lbs., and that the rate on lettuce should not exceed 55c. Reparation denied. Ponchatoula Farmers' Ass'n v. I. C. R. R. Co., 19 I. C. C. 513. (1) On apples in carloads from Mount Ross and Elizaville, N. Yi., to Birmingham, Ala., via the Seaboard De- spatch, operating thr(3ugh Portsmouth or Richmond, a combination rate of 51c was exacted, defendant Central New England Co. being the initial, and the Seaboard Air Line the delivering, car- rier. At the time of shipment a rate of 42c was in effect via the Southern Despatch, operating through Hagers- town and Bristol, with the Alabama Great Southern as the delivering car- rier, and defendant Central New Eng- land as the initial carrier. The Sea- board Air Line did not participate in the Southern Despatch route. The Sea- board Despatch route was 104 miles REASONABLENESS OF RATES, §84 (m) — (p) 641 shorter. HELD, the only evidence of- fered of the uhreasonableness of the rate attacked being a comparison with a different route, the rate attacked could not be found excessive on the record. Pankey & Holmes v. Central New Eng- land Ry. Co., 18 L C. C. 578, 579. (m) On a carload of peaches from Horatio, Ark., to Memphis, Teun., com- plainant was charged 89c per 100 lbs., and for refrigeration $70.50. Subsequent to the shipment the initial carrier joined in a rate of 39c between said points and a refrigeration charge of 5c per crate of four-basket carriers. The delivering carrier refused to join in such new rates. The shipment weighed 21,120 lbs. HELD, the 89c rate and refrigera- tion charge were excessive. Reparation awarded on the basis of 43c, held to be a just and reasonable rate, and of $48 for refrigeration. (Cockrell, Com'r, dissenting as to refrigeration and icing charges.) Memphis Freight Bureau v. K. C. S. Ry. Co., 17 I. C. C. 90, 91. (n) Complainants attacked the rates on barrel or malaga grapes from New York, Philadelphia, Baltimore and Wash- ington to Pittsburgh, and asked that rates be established on carloads equal to those applicable to fresh vegetables, and on less than carloads lower than less-than-carload rates on fresh vege- tables. Grapes were usually not classi- fied with fresh vegetables, but with cherries, apricots and plums. The aver- age value of malaga grapes exceeded the average value of fresh vegetables by about one-third. Under the rates attacked the total cost of transportation from the vineyards in Spain to Pitts- burgh was higher than (exclusive of duty) the rates from California on To- kay grapes to Pittsburgh, which com- peted with the malaga grapes. Malaga grapes, while not requiring refrigeration, did require special care in transporta- tion to protect against low tempera- tures. HELD, the rates assessed were not shown to be unreasonable. Com- plaint dismissed. Connolly-Fanning Co. V. P. R. R. Co., 17 L C. C. 283, 285. (o) On a shipment of a mixed car- load of potatoes and onions in packages from Reno, Nev., to Alturas, Cal., a charge of 80c per 100 lbs. was exacted. Reparation awarded on the basis of $12 a ton, following E. Lauer & Son v. N. C. & O. Ry., 17 L C. C. 488. Bunch & Tussey v. Nevada, C. & O. Ry., 17 L C. C. 490i (p) Complainant asparagus growers in the Charleston district, S. C, at- tacked the rate of 90c per crate of 24 bunches, weighing 65 lbs., to Boston, and of 65c per crate to Washington, Balti- more, Philadelphia and New York. The refrigeration charges were 21c per crate on a minimum carload of 230 crates and 15c on a minimum of 325 crates to New York and the other cities named except Boston, and to Boston were 24i/4c and 171/^c per crate, respectively, for the same minimum carloads. Complain- ants alleged unjust discrimination against small shippers in that defend- ants refused to furnish refrigeration for less-than-carload lots. The average net return to growers on asparagus for 1908 and 1909 was about $4.50 per crate, exclusive of transportation and refrigeration charges and commissions. Conflicting evidence indicated that the gross selling price at New York ranged from about $6 to $8 per crate. The asparagus grown around Charleston was transported by boats to the vegetable wharves, in Charleston, of defendants Southern Ry. and A. C. L. R. R. It comprised one-third of all vegetable traffic moving over the wharves. De- fendants unloaded the vegetables from the boats to the wharves. The re- frigerating company loaded them into the cars. The traffic was forwarded in expedited trains of light tonnage that were given preference over all other trains except passenger trains. While defendants formerly granted refrigera- tion on less-than-carload shipments, the evidence indicated that to do so under the rates attacked would result in loss to both the railroads and the refrigera- tion companies. The practice at other producing points was to consolidate small shipments in carloads. The mini- ma under the rates complained of could be easily loaded. The cost of refrigera- tion from Charleston to New York was over $48 per car of 21,125 lbs. when 325 crates were loaded. In 1907 on business over the A. C. L. R. R. the profit from refrigeration was $4.06, and in 1908 $3.36, a car, which profit ac- crued entirely to the refrigeration com- pany and not to the carriers. In Flor- ida Fruit, etc., v. A. C. L. R. R. Co., 14 I. C. C. 476, the Commission found that refrigeration charges of $70 per car of 21,400 lbs. on fruit and vege- 642 REASONABLENESS OF RATES, §84 (q) tables from Florida and northern points were not unreasonable. The 65c rate complained of to New York had been in effect since 1903. From 1894 to 1899 the rate was 85c, and from 1900 to 1902, 80c. Some 7,000 cars of vegetables per year were shipped from the Charleston district. On account of the absence of refrigeration by water lines and the longer time required to get to market, the rates complained of were but slightly influenced by water competition. On asparagus, under the rates attacked, the earnings via the A. C. L. R. R. for the year 1908 averaged about $198. De- fendants' earnings on lettuce from Charleston to New York were about $156 per car. In the Florida Fruit case, supra, a rate on vegetables of 43c per crate of 50 lbs. from Florida base points to New York was held to be reasonable, tvhich rate did not, however, include the gathering charge or the rates up to the base points. The average loading of vegetables was found in that case to be 17,600 lbs. and the per car earnings $150. Jacksonville is 1,000 miles and Charleston 740 miles from New York. A rate of 60c per crate from Charleston via the A. C. L. R. R. to New York would yield per car earnings of $180, and one of 55c, $165. The losses to the carriers from damage and deterioration of asparagus were heavy. HELD, that in view of the cost of the service, com- parisons with rates in other localities and former decisions of the Commis- sion, the refrigeration charges com- plained of were not shown to be unrea- sonable or to discriminate unjustly against the shippers of less-than-carload lots; but that the rates attacked were unreasonable to the extent that they exceeded 60c per crate, Charleston to New York, 58c to Philadelphia, 56c to Baltimore and Washington and 70c to Boston. Reparation denied. Asparagus Growers Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 423, 427, 429. (q) In Florida Fruit and Vegetable Ass'n V. A. C. L. R. R., 14 I. C. C. 476, the Commission considered the rates upon fruits and vegetables from pro- ducing points in Florida to eastern des- tinations north of the Potomac and Ohio rivers and east of the Missouri River, and established rates on citrus fruits and pineapples to eastern destina- tions north of the Potomac and east of the Buffalo-Pittsburgh line, and approved existing rates to the Ohio River. It stated in the opinion that the rates to points north of the Ohio and east of the Missouri River were excessive, but entered no order, the proper car- riers not being made parties. Existing carload rates on oranges to the Ohio River were approved, as were also ex- isting any-quantity rates to eastern points north of the Potomac. The rail- and-water rates from points of produc- tion to North Atlantic ports were re- duced in case of vegetables, and it was suggested that carload rates should be established to eastern territory. The carriers complied with the order, but not with the suggestions, made in that case. The present proceeding involves the rates on citrus fruits and pine- apples to territory north of the Ohio River, west of the Buffalo-Pittsburgh line and east of the Missouri River; the carload rate upon vegetables from Florida base points to points north of the Potomac and east of Buffalo and Pittsburgh, and the approval of advances in vegetable rates from base points to the Ohio River. In the former opinion the Commission held that the rates upon citrus fruits and pineapples should be the same, and that the rates from points of production upon the Florida East Joast Ry. to Jacksonville, when for beyond, were reasonable. In this pro- ceeding, however, the reasonableness of these rates is again considered. The local rate from Florida base points, as compared with the proportional rate, was also brought in question, as was the rule as to mixed fruits and vege- tables in carloads; also the question as to any change to be made in the rates for refrigeration. RATES ON CITRUS FRUITS AND PINEAPPLES FROM BASE POINTS TO POINTS NORTH OF THE OHIO RIVER AND EAST OF THE MISSOURI RIVER. In the former opinion it was held that carload rates from base points to the Ohio River might properly be the same as those to New York, the distance being substantially the same. HELD, rates to points north of the Ohio River should not much dif- fer, distance considered, from those to various eastern destinations north of the Potomac; and on the record of the former case the rates upon citrus fruits and pineapples of 59.6c, 5Gc, 58.8c, 62c, 54c, 56c, 77.6c, 77.6c, 71.6c, 79.6c and 72.8c per box, in carloads, minimum 300 boxes, are unreasonable to the extent they exceed 53c, 50c, 53c, 55c, 50c, 50c, 66c, REASONABLENESS OF RATES, §84 (q) 64S 6Gc, 62c, 66c and 62c, respectively, to Chi- cago, Indianapolis, Cleveland, Milwaukee, St. Louis, Columbus, Minneapolis, St. Paul, Kansas City, Omaha and Cedar Rapids, respectively. VEGETABLES FROM FLORIDA BASE POINTS TO POINTS NORTH OF THE POTOMAC AND EAST OF BUFFALO AND PITTS- BURGH. In the former opinion the Commission suggested rates of 33c, 34c, 36c and 42c to Baltimore, Philadelphia, New York and Boston, respectively, minimum 20,000 lbs. Defendants estab- lished rates 3c higher than these, mini- mum 20,000 lbs. Complainants demand a rate of 30c to New York, minimum 24,000 lbs., to make the carload earnings equal those on oranges. The mini- mum from southern points does not usually exceed 20,000 lbs. Under re- frigeration not over 17,500 lbs. can be properly loaded. HELD, the rates under ventilation, minimum 420 crates, 21,000 lbs., should not exceed 30c, 31c, 33c and 39c to Baltimore, Philadelphia, New York and Boston, respectively, and un- der refrigeration, minimum 350 crates, 17,500 lbs.., 36c, 37c, 39c and 45c to these points, respectively. VEGETABLE RATES FROM BASE POINTS TO THE OHIO RIVER. At the time of the de- cision of the former case the rates on vegetables from base points to the Ohio River were and for many years had been 25c per crate, minimum 20,000 lbs. Rates to points north of the Ohio River were made by adding certain specifics. Since that decision, defend- ants advanced the rates to 30c, with the same minimum, leaving in effect the same specifics as before. This rate of 30c to the Ohio River was still 6c lower than the rate suggested by the Commission to apply to New York when it found in a former case that the or- ange rate might properly be the same from base points to New York and the Ohio River. The 25c rate was estab- lished to meet competition from pro- ducing points in southern Alabama and Mississippi, the haul being longer from l^'lorida than from these points. In the past the cabbage rate, from Florida base points to the Ohio River had been 42c, minimum 20,000 lbs. Under the new rates this charge was left in effect, but the minimum was advanced to 24,000 lbs., which could be safely loaded. The former rate on potatoes was 27c, mini- mum 37,000 lbs.; the advanced rate was 32c, minimum 30,000 lbs., which latter minimum was the largest that could properly be loaded. HELD, that the 25c rate having been established to meet competition, the Commission could not order it to be restored; that the 30c rate was not unreasonable; that the 24,000 lbs. minimum on cabbage was not unreasonable, and that the 32c rate on potatoes, yielding only $96 per car, was not unreasonable. RATES ON PINE- APPLES FROM FLORIDA COMING IN- TO COMPETITION WITH THOSE PROM CUBA. The cost of production in Cuba is some 15c per crate less than in Florida. On account of better quality Florida pineapples bring from 25c to 50c per crate more. The cost of hand- ling Cuban pines from the country to the dock in Cuba, including the dock expense, was 7c per crate. The rate from the Cuban dock to Chicago via che Florfda East Coast Ry. and its con- nections was 66^/^0, making a total transportation cost from Cuban produc- ing points to Chicago of 73^c. Cuban pines move to Chicago via New York, Mobile and New Orleans, the total charge being the same, 73i/^Cu The aver- age rate from Florida producing points to Jacksonville was "5c. With a rate of 53c from Jacksonville to Chicago the total charge to Florida producing points would be 78c, 4i/^c higher than the Cuban rate. The evidence in the former case and in the present proceeding in- dicated that the Florida East Coast Ry. had never earned a dividend of over 6 per cent, and that during much of the time its net earnings were little above its operating expenses. Its main line was 477 miles in length, with 106 miles of branches. About 60 per cent of the pineapples moved from Florida points of origin in carloads, 40 per cent in less than carloads. Carload shipments were stripped and loaded by the shipper and were not unloaded at Jacksonville, the carrier being thereby saved about 2c per box. The less-than-carload ship- ments were loaded by the railway, and usually unloaded at the station at Jack- sonville or South Jacksonville. HELD, th a rates from Florida basing points should not on pineapples to Chicago exceed 53c per crate; that the local rate from Florida producing points to base points, average 25c, was not excessive, in view of the net earnings of the carrier, but that the rates were uneven and should be revised, being too high from the more distant points, as compared with the G44 REASONABLENESS OF RATES, §84 (r) — (t) rates from nearby ppints; that carload rates should be established less than the present any-quantity rates by 3c per box. Tabl« of rates from Florida pro- ducing points to basing points, mini- mum carload 300 crates, prescribed for various distances in the opinion. LO- CAL RATE FROM FLORIDA BASE POINTS, AS COMPARED WITH THE PROPORTIONAL RATE. Dealers at the Florida base points shipped fruits and vegetables from the Florida pro- ducing points at the any-quantity local rate and consolidated them into car- loads at the base points. HELD, a some- what higher rate might be applied to the base points than the proportional rates to the base points when the car- load simply passed through these points; the local rates might exceed the pro- portional rates by 2c per crate in case of vegetables, 3c per box in case of citrus fruits and pines, and 4c*per 100 lbs. where the rate was named in that manner. MIXING OF FRUITS AND VEGETABLES. Under the rates at- tacked, citrus fruits and vegetables could be mixed, the combined carload taking the same rate and minimum as would either commodity. Vegetables could be mixed, the rate being that of the article taking the highest rate, and the minimum that of the article tak- ing the highest minimum. HELD, that the mixture of fruits and vegetables from Florida points should bo allowed, both the rate and the minimum to be that of the article taking the highest rate. REFRIGERATION. In the former opinion a refrigeration rate of $67.50 per car was approved from Florida points of production, the icing supply being at the base points, which are less distant than the producing points. HELD, the charge from base points should properly be less than from the point of production. No order entered, however, on account of the state of the pleadings. Florida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 556, 557, 558, 563, 564, 565, 566, 568. (r) The published tariffs on cabbages in carload lots with a minimum of 200 crates from St, Andrew's Parish, S. C. to New York was 60c. Shippers cus- tomarily performed the service of load- ing. The published tariffs mad^* no pro- vision for charges where the carrier did the loading. Defendants loaded the cars in question and collected the less-than- crload rate, 63c. HELD, such charge was unlawful, and complainant was en- titled to reparation on the basis of the carload rate. Vcorhees v. A. C. L. R. R. Co., 16 I. C. C. 42, 43. (s) At the time of shipments of car- loads of lettuce by complainant from St. Andrews, S. C, to New York City, the published rate was 32c per bushel, box, basket or crate of standard size, and on crates above the standard size the bar- rel or double-crate rate of 63c applied. The baskets shipped by complainant con- tained one and one-half bushels and were, therefore, in excess of the standard bas- ket. Defendants charged the 63c rate. Shortly thereafter, defendants estab- lished a 48c rate on half-barrel pack- ages. This rate yielded about the same revenue as the rate on lumber between Charleston and New York. Shipments of vegetables required great expedition in handling, and a high rate of speed, and it was necessary to sidetrack other traffic to give them preference. Defend- ants had constructed branch lines into the St. Andrews district to develop the vegetable traffic, which was not large from that point. HELD, complainant's request for a reduction of the rate on half-barrel packages to 32c was not justi- fied, but that the 48c rate on such pack- ages was reasonable, and coTnplainant was entitled to reparation on the basis of that rate. Voorhees v. A. C. L. R. R. Co., 16 I. C. C. 45, 48. (t) The rates on strawberries and peaches shipped from the Ozark country to many points east, west and north were considerably higher than the rates on these commodities shipped from Ten- nessee, Alabama, Mississippi, South Carolina and Georgia points, the com- parison being based on per car and per ton mile earnings. It was true generally that all traffic west of the Mississippi River took somewhat higher rates than that east of the river. It did not appear that the relation of rates between east and west of the river on the commodities in question was out of proportion in com- parison with those on other commodities. The transportation of strawberries and peaches requires high speed, special re- frigeration and special expense in the accumulation of empty cars in the dis- trict in question. A cut of 20 per cent in the rates attacked would have re- duced the selling price only l-6c a quart. HELD, the rates in question, as a whole, were not unreasonable, but the finding did not preclude a future attack on rates REASONABLENESS OF RATES, §84 (u) — (x) 645 between particular points. Ozark Fruit Growlers' Ass'n v. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 114. (u) Complainant attacked rates on apples from the Ozark fruit country to (a) St. Louis, Kansas City and Memphis; (b) Louisiana points; (c) points in Mis- sissippi, Alabama, Georgia, South Caro- lina and Florida; (d) Oklahoma, and (e) Texas. The rates to group (a) were much lower than to groups (d) and (e) on ac- count of competition from producing ter- ritory to the north and east, and there was no evidence that rates to group (a) were unreasonably high. The same was true of rates to group (b), which were made to meet water competition. The rates to group (c) were made by add- ing the rate to Memphis and the rate from Memphis to points beyond. The rates beyond Memphis on all commodi- ties bore a fixed relation to rates from Louisville and other Ohio River cross- ings to the same destination, being 4c less in the case of apples. To reduce the rates to group (c) would result in a readjustment of rates from Ohio River crossings. With respect to groups (d) and (e), the per-ton-mile rate from the Ozark country to these group poinds ranged from 16.8 mills' to 38.1 mills, whereas the per-ton-mile rates on ship- ments from Chicago, Richmond, Va.^ Huntington, Ore., and Rochester. N. Y., to various points ranged from 6.2 to 22.1 mills. The apple industry in the Ozark country was of large proportions and on the increase, and the volume of traffic into Oklahoma and Texas was rapidly increasing. HELD, the rates to groups (a), (b) and (c) were not unreasonable; that the rates to groups (d) and (e) should be generally reduced, so as to make the defendants' rates on apples practically equivalent to its rates on strawberries and peaches shipped from the Ozark country to various destina- tions; such new rates to be as follows: from Missouri and Arkansas into Okla- homa for distances in excess of 220 miles and less than 320 miles, 40c and for 320 miles and over, 45c per 100 lbs.; from Missouri producing points to Texas com- mon points, 55c, instead of the present rate of 62c, and from Arkansas, 45c, in- stead of the present rate of 53c, the new rates being designed to produce a reve- nue of 16.6 mills per ton mile for a haul of 600 miles into Texas from Missouri, 20 mills from Arkansas, and from 36.4 to 18 mills to Oklahoma destinations, 220 to 450 miles from points of origin. Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., 16 L C. C. 134, 137-141. (v) Carload rates on bananas from Mobile and New Orleans to Bur- lington, Cedar Rapids, Davenport, Ot- tumwa, Des IMoines, Fort Dodge and Waterloo, la., of 52c, 60c, 5'6c, 60c, 64c, 66c and 62c per 100 lbs., respectively, are noi unreasonable, following the decision in Topeka Banana Dealers' Ass'n v. St. L. & S. F. R. R. Co.. 13 L C. C. 620, estab- lishing rates from these southern points to Kansas City and other points. La- gomarcino-Grupe Co. v. L C. R. H. Co., 115 I. C. C. 151, 152. (w) On bananas originating in Cen- tral America, but shipped locally in car- loads from New Orleans to El Paso, a rate of 82c from New Orleans was ex- acted. The Galveston to El Paso rate found reasonable by the Commission was 64c. The terminal expenses at New Or- leans were higher. Bananas are perish- able and require expedited service. They moved from New Orleans in cars fur- nished by third parties, the rate charge of the carriers being $10.92 per car. The carriers expended on each car $1.25 for equipping and slatting, $2 for bulkhead- Ing, $6 for false flooring, $1 for weighing, $1 for clerical supervision, a switching charge of $2 at New Orleans, and a load- ing charge at New Orleans of $6. Much of the country bet\^een New Orleans and El Paso is sparsely settled, and pro- ductive of little traffic. HELD, the 82c rate was not unreasonable. Payne v. M. L. & T. R. R. & S. S. Co., 15 I. C. C. 185, 191. (x) Complainant association, shippers of oranges, grapefruit and lemons from Florida to New York, B(5ston and sur- rounding territory, and to territory north of Ohio River crossings, attacked the rail-and-water and all-rail rates to the former territory and the all-rail rates to the latter territory as being unreasonable in themselves " and unjustly discrimi- natory in comparison with rates on such products shipped from California to the same territory. Considerations affecting rates on oranges applied equally to grapefruit and lemons. The average dis- tance from California to points in New York territory was 2,500 miles, and the average distance from Florida points to that territory was 1,250 miles; whereas the rates from California were some- what lower, despite the greater distance. The rail-and-water rate from base points in Florida to Baltimore, Philadelphia and 646 REASONABLENESS OF RATES, §84 (x) New York was 35c per box on oranges; to Boston, 40c per box. The all-rail rate to Baltimore was 47.5c; Philadelphia, 48.5c; New York, 50.5c; Boston, 58.5c. The average local rate from Florida base points to producing points in Florida was 25c per box, making the joint all-rail rates from Florida producing points 75.5c to New York, 83.5c to Bos- ton, 84.6c to Chicago, 85.4c to Pittsburgh, and 85.8c to Buffalo. The joint rail-and- water rates from basing points in Florida to the aforesaid territory were increased by tha 25c Florida local rate. The rate from producing points to Chicago was made up of the 25c Florida local rate, plus a 46c base rate to Ohio River cross- ings, plus a 13.6c rate from the Ohio River to Chicago. By the rail-and-water and all-rail rates to New York territory, the charge was the same for carload as for less-than-carload lots; to Chicago ter- ritory the charge on carload lots was considerably less. By the all-rail route the traffic was carried from Florida bas- ing points over the Atlantic Coast Line and the Seaboard Air Line to northern lines at Richmond. Of the 58.5c rate from Florida base lines to Boston, the road south of Richmond received 37.5c, and those north of Richmond 21c. The 50.5c New York rate was divided 37.5c to car- riers south and 13c to carriers north of Richmond, and the Buffalo rate. 33.6c south and 27.2c north of Richmond. The carriers north of Richmond received from Florida oranges a much larger allow- ance than for equal distance hauls of Cali- fornia oranges. The Florida local rates from producing points to basing points were established by the state commis- sion and were reasonable on account of the sparsely -settled country and light traffic. No evidence was offered to show that the rail and water rate froii Florida basing points to said northern prints was excessive. As to the all-rail rafes from basing points to northern points it ap- peared that the Seaboard Line was in the hands of receivers; that it w-is not paying dividends on its stock; ani that its earnings scarcely enabled it to pay interest on its funded indebtedness; that the Atlantic Coast Line was in better condition, due largely to valuable traffic originating north of Florida, and that said roads on the orange rate attacked were earning about 1.38c per ton mile, a iigure only slightly above their average per-ton-mile earnings on other products. Complainants asked a reduction of 10c per box on the all-rail rate in question. Such reduction meant a reduction of less than Ic per dozen in the cost of oranges at the market, and would not materially help complainants to compete with Cali- fornia oranges. HELD, the rail-and- water rates in question were reasonable, and complainants' request for rail-and- water carload rates lower than any quan- tity rates should be denied; that the all- rail rates south of Richmond were reasonable; that the rates north of Rich- mond were excessive, and should be re- duced; that all-rail carload rates upon a minimum of 300 boxes should be es- tablished, 46c from Florida base points to New York, 43c to Baltimore, 44c to Philadelphia, 51c to Boston, and that the less-than-carload rates might be 10c per box higher than the carload rates to all points, so long as the present any-quan- tity rate was not exceeded, and that the Florida to Chicago rate, being made up of the base rate to Ohio River crossings, plus the local third-class rate from said crossings to Chicago, should be reduced to equalize the California to Chicago rate, but no order should be entered, the car- riers north of Ohio River territory not being made parties. VEGETABLES: The rail-and-water rates upon vegetables were considerably higher from Florida points to Baltimore, Philadelphia, New York and Boston than those upon or- anges. The vegetables moving by water were of the coarser, cheaper grades, did not require an expedited service; were not more bulky than oranges, and did not exceed oranges in value. The rail rates on the higher class of vegetables from Florida points to said cities were much higher than upon oranges. But sucti vegetables, for example, celery, lettuce and tomatoes, required an especially ex- pedited service to avoid the expense of refrigeration; loaded more lightly than oranges, and were subject to minima with respect to refrigeration charges. The rate to Boston on the same was 20c per 100 lbs. higher than to New York. Vegetables shipped all-rail from Florida to said cities took only any-quantity rates. It was impracticable for small operators to ship in carloads, since vege- tables had to be shipped out immediately. Defendants operated an expensive system of themselves assembling the packages in the carloads at different points in transit. The larger operators might, how- ever, ship in carloads. The rate on to- matoes from Mississippi was much less to New York than from Florida to that point over a shorter haul, but such low REASONABLENESS OF RATES, §84 (y)— (bb) 647 rate was made by the Illinois Central and the Pennsylvania lines in order to gain a share of the traffic. HELD, the rail-and-water rates on coarser vege- tables, including cabbages and potatoes, should be reduced so as not greatly to exceed the rates on oranges; that the all- rail rates on the better class of vege- tables, though higher than those upon oranges, were justified on account of the more expensive service, except that the rate to Boston should not exceed the rate on vegetables to New York by more than 6c per crate of 50 lbs. Defendants recommended to establish carload all-rail rates on vegetables. Pineapples: On ac- count of the cheapness of water transpor- tation, the fertility of the soil and the low cost of labor, Cuba was able to sell pineapples at the Atlantic ports more cheaply than Florida producers under the duties in force. The carriers making the haul from Florida growing points to the basing line had developed the pineapple business and expended large sums for special sidings and were largely depend- ent upon the traffic for their revenue. HELD, that the rail-and-water and all- rail rates attacked were reasonable and that carload rates as specified in the opinion should be established. Straw- berries: The rate on strawberries from Starke and Lawtey, Fla., to New York was $1.80 per crate, carload minimum 200 crates, including refrigeration. In cars loaded to such minimum, the straw- berries near the door were frequently damaged. The per car revenue derived upon a 300-crate minimum from vege- tables, including refrigeration, was $209, as against $360 derived from strawber- ries under the 200-crate minimum at- tacked. HELD, the minimum should be reduced to 175 crates. Refrigeration: The refrigeration charges on oranges and vegetables from a typical Florida point to New York were about the same as those from California points to New York, the charge upon vegetables being some $70 per car. The cost of icing and re-icing was from $45 to $55 per car. The ex- pense of loading and stripping performed by the carrier ranged from $3 to $5 per car. Defendants were subjected at times to heavy damages for failure to furnish cars. The actual cost of refrigeration to defendants was not much greater on shipments from California than on those from Florida. Defendants were sub- jected to an additional expense on ac- count of the additional weight in the case of refrigeration shipments. HELD, the rate attacked was not unreasonable. Florida Fruit and Vegetable Shippers' Protective Ass'n v. A. C. L. R. R. Co., 14 I. C. C. 4iu, 493, 495, 498-501, 503, 505, 508. (y) Complainant was charged 34i/^c per 100 lbs. on a mixed carload of cab- bages, potatoes and onions from Gre^n Bay, Wis., to Poplar Bluff, Mo. Prior to the time of shipment, complainant had made a number of similar shipments be- tween the same points via another car- rier at a rate of 27c. This 27c rate was assessed by mistake of the carrier and the published rate was 35i4c. Complain- ant introduced no evidence to show the published rate unreasonable. HELD, on this showing complainant was not en- titled to reparation on the basis of the 27c rate. Platten Produce Co. v. C. M. & St. P. Ry. Co., 14 L C. C. 512, 513. (z) Defendant charged complainant on carload shipments of apples from Nooksack, Wash., to Minneapolis, $1.00 per 100 lbs. At the time of the ship- ment the rate from other Washington points was 80c a 100 lbs., and defendant conceded that Nooksack should take no higher rate than such other points, but contended that the 80c rate was unrea- sonably low. HELD, under such admis- sion complainant was entitled to repara- tion of 20c per 100 lbs. Gamble-Robinson Commission Co. v. N. P. Ry. Co., 14 I. C. C. 523, 524. (aa) Carriers in changing rates, mini- ma or other rules which affect the trans- nortation charges on a commodity mov- ing only at a particular season, should eive consideration to the shipping and celling seasons for that commodity and arrange for such changes to become ef- fective at a time when they will not seriously disarrange or unfavorably af- fect the movement or sale of the sea- son's output. Hartville Celery Growers' Ass'n V. Pacific Express Co., 14 I. C. C. 590, 593. (bb) Bananas from Cuba, Jamaica and the West Indies coming through Baltimore are lighter than those from Central America, coming through the gulf ports. The carriers from Baltimore established an 18,000-lb. minimum. De- fendants, on shipments from New Or- leans and INIobile to points east of the Mississippi River, adopted the same minimum to meet said 18,000-lb. mini- mum. On shipments to Kansas City and adjacent points defendants pre- 648 REASONABLENESS OF RATES, §84 (cc)— §86 (a) scribed a 20,000-lb. minimum. No diffi- culty was experienced in loading above both minima. HELD, Kansas City and adjacent points were not unjustly dis- criminated against. Topeka Banana Dealers' Ass'n v. St. L. & S. F. R. R. Co., 13 L C. C. 620, 626. (cc) Complainant dealers attacked the rates on bananas, C. L., from New Orleans, La., and Mobile, Ala., to Kan- sas City, lola. Parsons, Topeka and Hutchinson, Kan. The rate to Kansas City was 63c; distance, 879 miles; the ton mile revenue, 1.43c. The rate to Chicago was 46c; distance, 922 miles; the ton mile revenue, Ic. The low Chi- cago rate was established by the I. C R. R., especially for the purpose of building up an enormous traffic in ba- nanas on account of its strategic posi- tion in directly connecting the source of supply with a large source of con- sumption. Bananas from gulf ports were loaded on special trains, which awaited the arrival of ships and hurried at an average speed of 21 miles an hour to points of consumption. Special wharfs were set aside at gulf ports for this traffic and special unloading facilities provided. The cars used re- quired special cleaning and drying, and false floors were erected therein. Stand- ard ventilator refrigerator cars were used, and by careful ventilation the cost of icing was saved. The expedited service was maintained at an embar- rassment to other traffic. Some 80 per cent of the cars returned from Kansas City empty. The rates attacked were higher than those on peaches and to- matoes carried equal distances by rail roads moving west of the Mississippi River, but the latter commodities did not require expedited service and the shipper was obliged to pay thereon the cost of refrigeration. HELD, the rates attacked were not shown to be unduly discriminatory or unreasonable per se. Topeka Banana Dealers' Ass'n v. St. L. & S. F. R. R. Co., 13 I. C. C. 620. 630. (dd) Reasonable rates on citrus fruits from Jacksonville, Fla., and other Flor- ida base points to points not enumerated in the former order established for the future. Florida Fruit and Vegetable Ship- pers' Protective Ass'n v. A. C. L. R. R. Co., Unrep. Op. 418. §85. Fruit Baskets and Tops. (a) On carloads of fruit baskets, nested in bundles, from Wynne, Ark., to Horatio, Ark., via Texarkana, Tex., a distance of 294 miles, complainant ob- jected to the unreasonableness of a charge of 94c per 100 lbs. At the time of the charge a commodity rate of 30c for the haul of 250 miles from Mem- phis to Clarksville, Ark., was charged by the defendant, and in Western Trunk Line territory, about a year after ship- ment moved, these baskets were given double the lumber rate. The lumber rate at time of shipment was 22i^c. HELD, that the charge exacted was un- reasonable, and that 50c per 100 lbs. was a fair rate. Reparation granted. Wells-Higman Co.. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 288. (b) Complainant attacked the combi- nation rates of 36c and 37l^c on wooden covers for fruit baskets from Brewton, Ala., to points in the fruit growing section of southern Michigan to the esient that they exceeded the lumber rate of 28c be- tween the same points. Wooden covers for fruit baskets are a by-product of the saw- mills, which utilize the smaller and de- fective parts of the logs that cannot profitably be converted into other ar- ticles. They are comparatively cheap in price, are compact and easily handled, and owing to the size of the bundles in which they are packed they fill in the door space of a car and load to a greater weight than is usually possible with lumber. The ratio of weight to space occupied is high for this class of commodity and the risk of damage is slight. The lumber rate applied on nu- merous articles manufactured from lum- ber or the refuse of sawmills, such as hoops, shingles, box shooks, picture backing, cooperage stock, etc. HELD, that the rates are unjust and unreason- able in so far as they exceed the rates contemporaneously applied to the trans- portation of lumber of the kind from which the basket tops are manufac- tured. Lovelace Lumber Co. v. L. & N. R. R. Co., 21 I. C. C. 585. §86. Furniture. (a) The carload rate on furniture and chairs from Indianapolis to Missouri River points was 55c, made up of the econd-class rate of 32i/4c, minimum 10,- 000 lbs., to East St. Louis, 111., plus a commodity rate of 22y2C on a 20.000-lb. REASONABLENESS OF RATES, §87 (a)— §89 (b) ■649 minimum beyond. The rate from Louis- ville to East St. Louis was 12i^c, which, added to the rate of 22i^c beyond, made a through rate to Missouri River points of 35c, minimum 20,000 lbs. The rate from Evansville to East St. Louis was 10c, which, added to the rate of 22i^c beyond, resulted in a through rate of 32i^c to Missouri River points. Com- modity rates of 126 per cent of the fourth-class rate of 14c were in effect from Grand Rapids to Chicago. The rates from Chicago to Missouri River points were 32c on a 12.000-lb. minimum and 30c on a 20,000-lb. minimum. The rate from Indianapolis via Chicago to Mis- souri River points was 47i/^c on a mini- mum of 20,000 lbs. and 53i^c on a mini- mum of 12,000 lbs. Similar rates were in force from Indianapolis via Peoria to Missouri River points. The local rates from Indianapolis to East St. Louis were lower than those from Grand Rapids to Chicago, but such lower rates had not resulted in forcing a reduction in the rates from Grand Rapids. Indianapolis, in the sale of furniture, was in competi- tion with Chicago, St. Louis, Evansville and Louisville. The lowest combination rate from Indianapolis to Missouri River points was 47i^c via Chicago. HELD, the rate of 32^/^0 from Indianapolis to East St. Louis, added to the 22i^c rate from there to Missouri River points to make the through rate, was unrea- sonably high and should be reduced to 126 per cent of the fourth-class rate of 16i^c to East St. Louis, or 21c, plus the rate of 22i^c west of there, making 431^0 to the Missouri River, this rate to apply on a minimum of 20,000 lbs., and that on a minimum of 12,000 lbs. the Indianapolis to East St. Louis rate should be 27c, which, plus the 22V^c rate west, would make a rate of 491/^c from Indianapolis to Mis- souri River points. Burnham, Hanna, Munger case, 14 I. C. C. 299, followed, but no order entered pending the review of that case in the courts (Prouty, Comm'r, dissenting as to class rates). Indianapolis Freight Bureau v. O. C. C. &. St. L. Ry. Co., 16 I. C. C. 56, 69, 70, 71. §87. Gas Machinery. (a) The distance from Warren, Pa., to Cadillac, Mich., over defendant's line and connecting carriers is 650 miles, which is 80 miles shorter than by an- other line. Over defendant's line the rate was 30c on gas machinery, as fifth class, yielding a revenue of 9.02 mills per ton mile. On the other line the joint rate was 20.5c; on, de- fendant's line, 30c. Defendant's rate from Warren over a different con- necting carrier was 20.5c for practically the same haul made under similar cir- cumstances and conditions. Since the filing of the complaint defendant volun- tarily reduced the 30c rate attacked to 201/^c. HELD, the rate charged was excessive in so far as it exceeded 20%c. Reparation awarded. Struthers-Wells Co. V. Penn. R. R. Co., 14 I. C. C. 291, 293. §88. Go-Carts. (a) On carloads of go-carts from Elkhart, Ind., to Tacoma, Wash., com- plainant was assessed a rate of $2.60. By tariffs effective Dec. 6, 1909, defend- ants established a commodity rate of $1.75, minimum 20,000 lbs., which was in effect at the date of hearing. The evidence indicated that until a recent period shipments of go-carts in full car- loads were of rare occurrence, and that they were at the time of hearing made of metal so as to load readily to the minimum of 20,000 lbs., whereas formerly, being made of wood, they could not load to it. HELD, the $1.75 rate was a reasonable one and should be established for the future. Repara- tion denied under the peculiar facts of the case. Harmon & Co. v. L. S. & M. S. Ry. Co., 17 I. C. C. 394. §89. Grain and Hay. (a) Complainant was assessed 24c per 100 lbs. for the transportation of wheat in carloads from Clinton, Ky., to Huntingdon, Ky., a distance of 61 miles. Clinton is 36 miles southeast of Cairo, III., which had a rate of 16c to Hunt- ingdon. Traffic from Cairo to Hunting- don passed through Clinton. Cairo was subject to competitive influences, and east Tennessee and the Carolinas took an arbitrary of 3c over Cairo. HELD, that the rate was unreasonable to the extent it exceeded the 19c rate prescribed for the future, without prejudice to any investigation which may be taken under the amended fourth section. Reparation awarded. Huntingdon Lumber Co. v. I. C. R. R. Co., 23 L C. C. 507. (b) Rates on grain in any quantity and hay in carloads and less than car- loads from Chattanooga, Tenn., to Fort 650 REASONABLENESS OF RATES. (c)— §90 (a) Payne, Collinsville and other Alabama points were attacked as unreasonable and discriminatory. By the Southern Classi- fication grain in any quantity and hay in carloads were rated class D. The rates on the same are lOi/^c per 100 lbs. for 34 miles to Batelle, UVzC for 51 miles to Fort Payne, 15c for 66 miles to Collinsville and lie for 87 miles to Attalla. The rates on hay in less than carloads were 18, 24, 27 and 27c to the above points, respectively. Chattanooga, 336 miles south of Cincinnati, O., and 316 miles south of Louisville, Ky., is a junction point between several roads. The distance from Nashville is 151 miles. Th€ joint rates on grain and hay in carloads from Cincinnati, Louis- ville and Nashville to Collinsville were 24, 24 and 17c, respectively. The rates to Chattanooga were 21, 21 and 16c, re- spectively. On hay in less than carloads the rates were 52. 52 and 34c to Col- linsville and 38, 38, and 24c to Chatta- nooga. The rate to Collinsville might be taken as fairly representative of the rate to all of the above towns. Attalla is a junction point between three rail- roads. Chattanooga's proximity to con- suming points makes it a natural sup- ply center. The evidence showed Chatta- nooga merchants were unable to com- pete at the above points because of prohibitive rates. Shipments of grain and hay in carloads from Cincinnati, Louisville and Nashville generally moved via Chattanooga. Rates out of Chatta- nooga on the same commodities to similar points on other roads were con- siderably lower. Chattanooga merchants did a large business in territories served by these lines. The rates complained of had been in effect many years and were adjusted with reference to the rates to other points on defendant's line. The less-than-carload rate on hay and not on grain was explained by the fact that hay weighed less and occupied more space. The evidence showed that the defendant's share of the joint rate to above points was often more than its local rates from Chattanooga to the same points. Rebilling privileges at Nashville made it impossible to place Chattanooga on an equal footing with Nashville and these privileges were not properly before the Commission. A prior adjudication existed in which the reshipping privilege at Nashville was declared discriminatory and the order entered therein was pending before the Commerce Court. HELD, while it is not apparent from the record that the rates on defendant's line should be in the same proportion as the rates on other lines out of Chattanooga, yet under all circumstances the rates are unrea- sonable and should not exceed 8i/^c to Batelle, lO^^c to Fort Payne and lie to Collinsville on grain and on hay in carloads, and 15, 20, 23 and 25c to Batelle, Fort Payne, Collinsville and Attalla on hay in less than carloads. Chattanooga Feed Co. v. A. G. S. R. R. Co., 22 L C. C. 480, 485. (c) On snapped corn, C. L., Laverty, Okla., to Millican, Tex., and from Lav- erty, Okla., to Navasota, Tex., complain- ant was assessed 36i/4c. Prior to the shipment the rate jad been 29c and sub- sequent to it the 29c rate was restored. The only explanation offered by defend- ant was that the rate on snapped and shelled corn had been the same and it thought it was entitled to a higher rate on snapped corn than on shelled corn. HELD, the explanation was not satis- factory, and the presumption being that the former rate subsequently re stored was a reasonable one, the rate ipsessed was unreasonable. Repara- tion awarded on the basis of 29c. Ocheltree Grain Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 46, 47. (d) Rate on bulk corn from Sioux City, la., to Lismore, Minn., found un- reasonable to the extent that it exceeded that in effect on corn in sacks. Repa- ration awarded. Minnesota & Iowa Ele- vator Co. V. C. R. I. & P. Ry. Co., Unrep. Op. 169. (e) Higher rates assessed on corn in the shuck than on shelled corn. Repa- ration awarded. Hill & Webb v. L & V. R. R. Co., Unrep. Op. 333. (f) Rates on timothy seed from Mc- Veigh, la., to St. Louis, Mo., should not exceed rates in effect from Stockport, la. Reparation awarded. Graham & Co. v. C. B. & Q. R. R. Co., Unrep. Op. 344. §30. Grates. (a) Complainant shipped mixed car- oRds of gas and coal fire-places and grates, Steubenville, O., to San Fran- isco, Cal. On seven shipments which oved prior to Jan. 1, 1909, charges were collected on a rate of $1.45 per 100 lbs., while a rate of $1.50 was ex- acted on the remaining four shipments. REASONABLENESS OF RATES, §91 (a)— §92 (c) 651 which moved subsequent to that date. Shipments were invoiced as gas grates, but by stipulation the real facts were admitted to be as above stated, gas gratos, coal grates, i.re-places. The tariff showed two rates, one of $1.35 and one of $1.45, on "iron fire-places and grates for same, N. O. S., made of wrought or cast iron." HELD, that wiit'ie the tariff carries two rates for the same article, the shipper should not be charged the higher rate; that the charges exacted were unreasonable to the extent they exceeded $1.35 per 100 lbs. on shipments moving prior to . an. 1, ly09, and to the extent they exceeded $1.40 per 100 lbs. on sub- sequent shipments. Reparation awarded. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 L C. C. 65, 67. §91. Gunpowder. (a) On carloads of gunpowder from Chicago to Green Bay, Shullsburg and Platteville, Wis., complainant was as- sessed twice the first-class rate upon the actual weight of each shipment, each car weighing something less than 6,000 lbs. Had the shipments weighed more than 10,000 lbs. but less than 20,000 lbs., the single first-class rate would have been charged, and com- plainant was therefore compelled to pay on less than 6,000 lbs. more than it would have been required to pay under the tariffs in effect, had each ship- ment weighed 10,000 lbs. About two years after the shipment defendant put into effect a tariff providing that ship- ments weighing less than 10,000 lbs. should be charged twice the first-class rate on the actual weight, the aggregate charges not to exceed the charges on 10,000 lbs. HELD, the charges assessed were unreasonable. Reparation awarded on the basis of the new tariff. Aetna Powder Co. v. C. M. & St. P. Ry. Co., 17 L C. C. 165. (b) On ball cartridges and saluting powder from Norfolk, Va., to Annapolis, Md., rates of 57c and $1.30 were ex- acted, respectively. Subsequent to the filing of complaint said rates were reduced to 36 and 74c, respectively. Defendants admitted the former rates to be excessive. HELD, the rates ex- acted were unreasonable. Reparation awarded. U. S. v. N. Y. P. & N. R. R. Co., 15 L C. C. 233. §92. Hay, Straw and Alfalfa. (a) Complainants attacked the classification of hay and straw as fifth class in the Official Classification. Hay and straw took the sixth-class rate until KuO, when it was raised to the fifth class. The Commission ordered it re- duced again to the sixth class, which order was disobeyed by defendants. The Commission filed a bill in the Circuit Court to enforce its order, but the Circuit Court found against the Commis- sion, which finding was finally affirmed by the Supreme Court, so that the fifth- class rate had been exacted since 1900. During this period of time hay per acre, as compared with wheat, corn, oats and rye, with the exception of three years was, on the average, the more valuable crop. During this period the acreage in the United States increased over six million acres; in the middle states it increased almost five million acres. Hay loads to a capacity of 22,000 lbs. to a car. The value of the hay per car ranged from $100 to $200. HELD, that in Ohio, Indiana, Illinois and Michigan, during the period from 1900 to date, the value of hay on the farm has not been destroyed by unrea- sonable freight rates nor has hay as a commodity been so discriminated against in comparison with the grains as to render it unprofitable as a farm prod- uct; that on account of the fact that only about one-third of the capacity of the car can be loaded with hay the Commission finds that the fifth-class rates on hay yield smaller returns to carriers than the comparatively low commodity rates on grain, and are therefore not unreasonable or unjust. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 38. (b) Complainant shipped a carload of hay, Henderson, Colo., to Breaux Bridge, La., under the class rate of 67c. For five years previous to the time of this ship- ment a commodity rate of 45c had been maintained. At the time of shipment the rate had been omitted from the tariff, and two months after the ship- ment moved a combination rate of 54^c was made effective. HELD, the rate charged was unjust and unreasonable in so far as it exceeded 45c. Repara- tion awarded, and the rate limited to 491/^0 for the future. Felton Grain Co. V. U. P. R. R. Co., 19 I. C. C. 63. .^c) On a carload of hay from Kan- sas City, Mo., to Seymour, la., complain- 652 REASONABLENESS OF RATES, §92 (d)— §93 (a) ant was charged the class rate of 13i/^c per 100 lbs. This was Ic higher than a proportional commodity rate of 12i^c per 100 lbs. which had been in effect between the points in question until a short time prior to the date of the shipment and was restored within about 60 days thereafter by an amendment to the defendants' tariffs. Said carload originated at Tates Center, Ark. De- fendants admitted that the rate collected was unreasonable. HELD, following North Bros. v. C. M. & St. P. Ry. Co., 16 L C. C. 70, complainant was entitled to reparation based on the 12V^c rate. Arkansas Fuel Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 95, 99. (d) Defendant was assessed $6 per net ton on alfalfa hay in carloads from Deming, N. M., to Bisbee, Ariz., and from El Paso, Tex., to Douglas and Bisbee, Ariz. The distance from Deming to Bisbee is 187 miles; El Paso to Douglas, 217 miles, and El Paso to Bisbee, 247 miles. HELD, these rates were unreasonable, and from Deming to Bisbee should not exceed $3.80, and from El Paso to Douglas and Bisbee, respectively, should not exceed $4.50. Reparation awarded. Darbyshire & Evans v. El Paso & S. W. R. R. Co., 16 I. C. C. 435. (e) On carloads of hay from Kansas City complainant was assessed the class rates of 17c to Mississippi River points, 191/^c to Peoria rate points and 22c to Chicago rate points. Shortly prior to the shipments, commodity rates were in effect over defendant's lines of 12i/^c, 15c and 17^/^0, respectively. Shortly after the shipments moved these com- modity rates were restored by all ex- cept one of defendants, which put into effect rates lower than the class rates but higher than the commodity rates. One of defendants admitted the rate exacted to be unreasonable. The cost of service upon the line of the defend- ant refusing to restore the former commodity rates was apparently no greater than upon the lines of tne other defendants. HELD, the rate? ex- acted were unreasonable. Reraration awarded on the basis of the former commodity rates. North Brothers v. C. M. & St. P. Ry. Co., 15 I. C. C. 70, 71. (f) Complainant was assessed 20c on hay, C. L., Kansas City to Cape JGri- rardeau, the hay having been shipped into Kansas City from Deerfield, Mo. For a number of years prior to the time the shipments moved, the defendant had in effect between Kansas City and Cape Girardeau (the route passing through a part of the state of Kansas) a pro- portional rate of 15c per 100 lbs., which applied to shipments brought into Kan- sas City and from there consigned East. Shortly after the shipments in question, the defendant again published a pro- portional rate of 15c between the points in question. At the time the shipments moved, however, the legal rate was 20c. While the 20c rate applied from Kansas City to Cape Girardeau, the defendant applied the proportional rate of 15c from Kansas City to a number of points in the immediate vicinity of Cape Girar- deau. HELD, the 20c rate was excessive. Reparation awarded on the basis of 15c. North Bros. v. St. L. & S. F. R. R. Co., 13 L C. C. 152. (g) Rate of 39c charged on baled hay from Raynsford, Mont., to Spokane, Wash., 25c rate in effect from surround- ing points, 30c subsequently established. Reparation awarded on basis of 25c rate. Whittaker v. G. N. Ry. Co., Unrep. Op. 113. (h) Rates on hay from Kansas City, Mo., to Dubuque, la., originating beyond, should not exceed those in effect from Kansas City, Mo., to Davenport, la.; Savanna, 111.; Rock Island, 111.: Moline, 111., and Clinton, la., on hay which orig- inates beyond Kansas City, Mo. Arkan- sas Fuel Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 246. §93. Hickory Spokes. (a) Complainant shipped hickory spokes from Ft. Payne, Ala., and Chat- tanooga, Tenn., to Ionia, Mich., under a rate of 28c from Ft. Payne to Cin- cinnati, and 23c from Chattanooga to Cincinnati, the rate from the river to Ionia not being attacked. The rate on hardwood lumber was 17c from Ft. Payne, and 13c from Chattanooga, and the original contention of the com- plainant was that spokes should be car- ried for the same transportation charge. The spokes in question were manufac- tured ready for use. Their value was from two to three times the value of the hardwood lumber out of which they were made. At the hearing defendants stated they were willing to establish a rate on spokes, from the points at- REASONABLENESS OF RATES, §94 (a) — (c) 653 tacked to the river, 3c per 100 lbs. above the lumber rate. HELD, that the rates exacted ought not to have ex- ce€d€d rates 3c per 100 lbs. higher than those contemporaneously in force upon hardwood lumber between these points. Reparation awarded. Ionia Wagon Co. V. A. G. S. R. R. Co., 19 I. C. C. 458, 459. §94. Ice. (a) The complaint filed in this case was supplemental to the complaint filed in Mountain Ice Co. v. D. L. & W. R. R. Co., 15 L C. C. 305, and the orders entered in this case were founded on the findings and holdings in that one relat- ing to rates on ice from New Jersey lakes and the Pocono Mountains to various destinations. HELD, (1) The rates from the Pocono Mountains and the New Jersey lakes to Brooklyn ter- minals and the Harlem station of the D. L. & W. R. R. are unreasonable and should be reduced to th-e schedule set forth in the report. (2) The rates from Pocono Mountains to Changewater, Del., and various points upon the Morris & Essex division of the defendant and upon branch lines are unreasonable and should b-e reduced as specified. (3) The rates from Pocono Mountains to Philadelphia, via Phillipsburg, requiring Philadelphia & Reading deliveries, and to points in Maryland, Delaware and New Jersey are unreasonable and should be reduced as specified. (4) The rates from Sterling Forest, N. Y., to various points in New York and New Jersey are unreasonable and should be reduced as specified. (5) The rate from Pocono Mountains to West Newark, N. J., and to various other New York and New Jersey points are unreasonable and should be reduced as specified. Repara- tion denied in instances where, although the rates were ordered reduced, they were not found to have been excessive in the past. Other claims for repara- tion left open for the taking of testi- mony before an examiner. Mountain Ice Co. V. D. L. & W. R. R. Co., 17 T. C. C. 447, 449-456. (b) Between April 1 and August 4, 1907, complainant shipped carloads of ice from Los Angeles, Cal., to Yuma, Ariz., upon which a rate of $3 was as- sessed. Complainant attacked this rate as unreasonable to the extent that it exceeded $1.90. In March, 1907, com- plainant protested against the $3 rate and was assured by the defendant that the same would be reduced promptly to $1.90. April 4, 1907, defendant's agents in California were instructed to protect a rate of $1.25 on ice shipped from producing points to icing points in said state. April 8, 1907, the $1.25 rate was applied to Yuma under the mistaken idea that Yuma was a Cali- fornia point. November 27, 1907, the $1.25 rate was for the first time law- fully published and put into effect. It was kept in effect until May 25, 1909, when the $3 per ton rate was re- stored. Complainant contended that It made its contract to supply the ice in question to defendant in view of the $1.90 rate promised it. The rate asked by defendant on most shipments moved prior to July 25, 1907, was $1.25 per ton. Whenever bills were rendered at $3 per ton, payment was not made until Nov. 14, 1907, and on that date these bills, together with the balance of the $3 rate on bills first rated at $1.25, were paid. Complainant testified that there was no other producer of ice in California that could have entered into a contract such as the one made by complainant, because no other company was in possession of cars and other facilities for the transportation of ice as needed by defendant. HELD, no evidence being introduced to show the $1.90 rate to be reasonable, reparation should be denied, since to sanction as a just basis for reparation the private understanding prior to the shipments, the rate remaining unchanged until the shipments were made, would be to establish a precedent for the grossest discrimination and favoritism. Armour Car Lines v. S. P. Co., 17 I. C. C. 461, 462. (c) Complainant attacked the rates on natural ice of defendants, the Erie and D. L. & W. R. Rs., from Green- wood Lake, N. Y., which took the same rates as that from Jersey points, of 60c per net ton, to Hoboken and Jersey City, N. J.; from points in the Pocono Mts., Pa., hereinafter desig- nated as mountain points, of 85c to Hoboken and Jersey City; from moun- tain points to Philadelphia of $1.40; and rates to points on the Long Island R. R. hereinafter specifically stated. In 1891 the Erie R. R. established a rate from Greenwood Lake to Jersey City of 40c. At the same time the D. L. & W. R. R. established rates from Jersey 654 REASONABLENESS OF RATES, §94 (c) points of 31c and from mountain points of 41c to Hoboken, and from mountain points to Philadelphia of $1.20. Upon this $1.20 rate an allowance of 10 per cent was made for shrinkage, there- by reducing the rate to $1.08 net. In 1899 the D. L. & W. R. R. raised the rate to 40c from Jersey points and to 55c from mountain points to Hoboken, In 1900 it increased the rates to 65c from mountain points and 50c from Jersey points to Hoboken, and in 1903 further increased the rate from moun- tain points to Hoboken to 75c. In the meanwhile it had increased the Philadelphia rate to $1.25 and with- drawn the shrinkage allowance. In 1906 it increased the rate from Jersey points to 60c and from mountain points to 85c in shipments to Jersey City and Hoboken, and increased the rate to Philadelphia from mountain points to $1.40. The original rates from Jersey points of 31c and from mountain points of 41c to Hoboken were unusually low from the fact that the officials of the railroad were interested in the ice busi- ness, but the original 40c rate of the Erie R. R. from Greenwood Lake to Jersey City appeared to be a normal one. Complainant's ice from the Jersey and mountain points in question came into competition with natural ice gath- ered fr6m the Hudson River. The cost of housing and gathering this Hudson River ice was practically the same as that involved at Jersey and mountain points. The water freight from the ice- house to the dock was about 30c per ton with an additional cost of 10c for handling the ice from the barge over the dock into the ice wagons. To com- pete upon favorable terms, the com- plainants, other things being equal, needed a rate of about 40c, but this did not apply to points which the Hudson River ice could not reach wholly by water. Complainant had an advan- tage in that the supply in the Pocono mountain never failed, whereas during many seasons no ice was frozen upon the Hudson. The profit to complainant on its ice was only a few cents per ton and a continuance of the rate com- plained of would finally result in the extinguishment of complainant's busi- ness, by reason of the Hudson River competition. Complainant also met seri- ous competition with artificial ice manu- factured at New York, Brooklyn and Philadelphia, and it was impossible on account of the low cost of manufacture to sell in competition with this artificial ice, which, however, could not be suc- cessfully stored and was unequal to the demand. Complainant received at its various houses at Jersey mountain points, f. o. b. the cars, an average price of 64c per ton. The price f. o. b. the car at the Pocono Mountains was about 75c per ton. In warm weather ice transported in an ordinary box car shrunk in weight during a period of from 24 to 36 hours about 20 per cent, and when carried in ice or refrigerator cars, about 10 per cent. The character of the equipment employed by defend- ants was not as good as formerly and they were making no efforts to improve same for the purpose of lessening this shrinkage. Ice moving from Jersey points to Hoboken and Jersey City was usually loaded during the day and de- livered for unloading the next morning. As to ice moving from mountain points, both to Philadelphia and Hudson River, the cars were loaded one day, taken from the icehouse the following morning and delivered for unloading the next morn- ing. The time occupied in transporting to Brooklyn and points on the Long Island R. R. was even longer. From Jersey points to the Hudson River and corre- sponding destinations ice could there- fore be handled to a very good advan- tage in box cars, but when the move- ment was from mountain points, special equipment was needed. The icehouses at mountain points were usually situated a mile or more from the main line and connected therewith by switching lines. The ice from mountain points on the Erie R. R. was collected from the icehouses and brought Into Strouds- burg, where it was made up into trains for Jersey City. The grades between Stroudsburg and the icehouses were severe, often requiring more than a single engine. About 32 empty cars could be handled out of Stroudsburg to the icehouses and about 35 loaded cars from the icehouses into Stroudsburg. The ice was made up into trains of 30 cars and hauled to Jersey City, 96 miles, two engines being required from Stroudsburg to Paterson. From the mountain points on the D, L. & W. R. R. the ice was carried from the houses to Gouldsboro over switch lines, whence it was carried to Hoboken, a distance of 127 miles, in trains of from 35 to 40 cars made up of various kinds of freight REASONABLENESS OF RATES, §95 (a) 655 and requiring two engines most of the way. Ice from mountain points on the D. L. & W. R. R. moved principally via Manunka Chunk. The average distance from points of origin to Manunka Chunk is 40 miles. One engine handles a train of 40 cars to this point and handles a train of 35 cars from Manunka Chunk to Philadelphia, 100 miles, with slight assistance at one point. The trains were handled as solid ice trains from Manunka Chunk to Trenton, where cars intended for other points than Philadel- phia were set out, the balance being carried on to Philadelphia. The serv- ice rendered by defendants was a spe- cial service, but not an expedited or expensive service. Ice from Greenwood Lake was moved by the Erie R. R. with a single engine and one train crew, the trains averaging 14 to 18 cars and handling no other business. The reve- nue derived on this ice from Greenwood Lake to Jersey City amounted annually to some $20,000, the cost of maintenance of way, of equipment and of transpor- tation being some $15,000 annually. The actual expense of moving ice from Gouldsboro to Secaucus, a point a short distance west of Hoboken, and moving the empty cars back, was only $2.29 per car, while the revenue at the 85c per ton rate complained of was $22.95. No reliable data were furnished as to the proportionate share of indirect line expenses attributable to this traffic, but the general impression of the Commis- sion was that the average cost of hand- ling a ton of ice from Gouldsboro to Se- caucus, upon an average load of 27 tons to the car in solid trains was much less than the average cost of handling all business, carload and less-than-carload, upon the D. L. & W. R. R. The average haul from mountain points to Hoboken and New Jersey was about 110 miles and the revenue at the 85c rate at- tacked was approximately 7.7 mills. The average ton mile revenue of the D. L. & W. R. R. was 7.21 mills and of the Erie R. R., 6.28 mills. The average haul on all traffic upon the D. L. & W. R. R. was 182 miles; upon the Erie R. R., 150 miles. On shipments to points on the Long Island R. R., from both Jersey points and mountain points, the rates were made by taking the local rate of the D. L. & W. R. R. to Hoboken and adding 25c per ton for lighterage and the local rate of the Long Island R. R. The Brie R. R. in connection with the Long Island R. R. maintained joint rates from Cooper, Ringwood, Sterling Forest and Char- lottesburg, Jersey points, which were 10c per ton higher than those main- tained by the D. L. & W. R. R. HELD, in view of the fact that the value of ice when taken up for transportation is almost nothing, and that the cars readily load to their physical capacity, and of the fact that the business of the complainant was built up under much lower rates, voluntarily estab- lished and long maintained by the de- fendant, and of the fact that the in- vestment so indufGd must be largely destroyed if the present rate should be maintained, and taking into considera- tion the other conditions stated, the rates attacked were unreasonable, when the ice was carried in ordinary box cars, to the extent that they exceeded 50c from Greenwood LaI.e to Jersey City, and of 65c from mountain points to Hoboken and Jersey City, and to the extent that the rates from mountain points to Philadelphia exceeded $1.20; that the rates of the D. L. & W. R. R. to points on the Long Island R. R. should be reduced, from Jersey points 2Cc per ton, and from moun- tain points 30c per ton; that the rates complained of from Cooper, Ringwood, Sterling Forest and Charlottesburg, should be reduced 20c p^r ton; but that the carriers might add to these rates above established 5c per ton from Jersey points to Jersey City and Ho- boken, 10c per ton from mountain points to Jersey City and Hoboken, and 15c per ton to Philadelphia and Brooklyn and points on the Long Island R. R., when special cars were provided. Repa- ration awarded. Mountain Ice Co. v. D. L. & W. R. R. Co., 15 I. C. C. 305, 316, 320, 322. §95. Iron and Steel Bars, Plates, Sheets and Structural Steel. (a) On shipments of iron bars, steel bars, steel plates, steel sheets and structural steel (not fabricated), in car- loads from Pittsburg to Denver, com- plainant objected to the fifth-class rate of 63c per 100 lbs. from St. Louis to Denver, applicable to through shipments from the East. Defendant's rate from the Mississippi River to Salt Lake City on iron and steel bars was 82 per cent of the fifth-class rate, and on steel plates, steel sheets and structural steel 656 REASONABLENESS OF RATES, §95 (b)— §96 (g) (not fabricated), 68 per cent of the fifth- class rate. A higher rate was charged upon the material from which prod- ucts were made, than upon the products themselves: wrought iron or steel pipe a rate of 45c per 100, railway material, 37c, etc. HELD, the rates for the future should not exceed 52c on iron and steel bars, and 43c on steel plates, steel sheets and structural steel (not fabri- cated). Vulcan Iron Works Co. v. A. T. & S. F. Ry. Co., 22 L C. C. 477. (b) Fifth-class rate 33c, class B rate 29c. Cast iron pipe carried fifth-class rate until, by exceptions subsequently adopted, class B rate applied. Fifth-class rate held unreasonable. Clow & Sons V. Penn. Co., Unrep, Op. 3. (c) Reparation awarded on account of unreasonable charges on an iron-work- ing machine and parts from Detroit, Mich., to Madison, Wis. Gisholt Machine Co. V. C. C. C. & St. L. Ry. Co., Unrep. Op. 290. §96. Iron Ore, Iron Products, Iron Py- rites. (a) In December, 1907, the rate on iron castings, C. L., Milwaukee, Wis., to Springfield, 111., should not via lines of defendants exceed 8c per 100 lbs. Ra- cine-Sattley Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 164. (b) Complainant attacked the rate of $1.90 per gross ton on hematite iron ore. Lakeside, N. Y., to Earlston, Pa., a distance of 328 miles. The principal defendant carried ore from Buffalo to Earlston, a longer haul, for $1.45. HELD, the rate is unreasonable to the extent that it exceeds $1.60 per ton. Repara- tion awarded. Ontario Iron Ore Co. v. N. Y. C. & H. R. R. R. Co., 21 I. C. C. 204. (c) On defendant's admission, the rate of $1 per gross ton on pig iron from Chicago, 111., to Evansville, Wis., is found unreasonable to the extent that it exceeds 85c, which rate is pre- scribed for the future. Baker Mfg. Co. v. C. & N. W. Ry. Co., 21 I. C. C. 605, 607. (d) Complainant, manufacturer of windmills, gasoline engines, etc., at Evansville, Wis., attacked the rate of $2 per gross ton on pig iron from Duluth, Minn., to Evansville, Wis., as unreason- able compared with the rates of from $1.50 to $1.75 per gross ton on the same com- modity from Duluth to other points such as Jefferson, Johnson's Creek, Watertown, Lake Mills and Fort At- kinson, Wis. Evansville is 363 miles from Duluth and is a shorter distance from there by from 3 to 21 miles than is any of the points mentioned. Janea- ville and Beloit are still farther from Duluth than is Evansville and take the same rate. These latter points are the only ones which really compete with Evansville. The rate to Evansville yielded 5.5 mills per ton mile, and since the hearing, defendants published a tariff naming a uniform rate of $2 per gross ton to all the points mentioned except Watertown, which rate has been increased from $1.50 to $1.75 per gross ton. It was alleged that the rate to this latter point was affected by its prox- imity to the lake. HELD, that the rate of $2 per gross ton on pig iron from Duluth to Evansville is not unreason- able or unlawful. .Complaint dismissed. Baker Mfg. Co. v. C. & N. W. Ry. Co., 21 I. C. C. 605, 606. (e) Following Highland Steel & Iron Co. V. Vandalia R. R. Co., 18 I. C. C. 601, fixing a rate of lie on bar iron in carloads from Terre Haute, Ind., to Louisville, Ky., a rate of 10c from Vin- cennes, Ind., to Louisville, Ky., is found not to be unreasonable. National Rolling Mill Co. V. B. & O. S. W. R. R. Co., 18 I. C. C. 604, 605. (f) The published rate on pig iron in carloads from Sheffield, Ala., to Hutchinson, Kan., over the Santa Fe lines and its connections was $7.84 per ton. The rate between these points over the lines of competing carriers was $6.39. Defendant informed com- plainant shipper that it would meet the $6.39 rate and made this statement without consulting its connections. At the time of the hearing, the rate by both routes had been raised to $8.09. HELD, such facts did not show the $7.84 rate charged by the Santa Fe lines and its connections to be unrea- sonable, and complainant should be de- nied the reparation sought on the basis of the $6.39 rate, especially since to allow reparation would result in a re- duction of the rates throughout the region involved without a proper hear- ing thereon. DeCamp Bros. v. S. Ry. Co., 16 L C. C. 144, 145. (g) On shipments in carloads of iron pyrites from Communipaw, N. J., to REASONABLENESS OF RATES, §96 (h)— §97 (a) 657 Linndale, O., and from Weehawken, in New York Harbor, to Linndale, a rate of $3.23 per gross ton was assessed. On carloads of the same commodity from Communipaw to Cleveland, O., a rate of $3.02 per gross ton was assessed. Linn- dale was a suburb of, and within the switching limits of, Cleveland. Subse- quently defendants reduced the rates from New York and Baltimore to De- troit on this commodity to $2.81, and from these points to Cleveland to $2.56. At about the same time the Commis- sion, in Detroit Chemical Works v. Erie R. R., 13 I. C. C. 363, established $2.81 as a reasonable rate to Detroit, but entered no order with respect to Cleveland or Linndale. HELD, the charges were unreasonable. Reparation awarded on shipments to both Linndale and Cleveland on the $2.56 rate. De- fendants ordered to maintain such lower rate only two years from the date of the Commission's order with respect to Detroit entered in the former case on account of the relation of the Cleveland and Linndale rates to Detroit. American Agricultural Chemical Co. v. E. R. R. Co., 16 I. C. C. 320, 321. (h) A rate of 6c was assessed on iron bars in carloads from East Chi- cago, Ind., to MoHne, 111. Defendant at the time had in effect two tariffs, one naming the 6c rate and another nam- ing a 5c rate, and was in doubt as to which one was legally applicable. Later it amended its tariff by making the 5c rate apply. HELD, the rate exacted was unreasonable. Reparation awarded. Bowman-Kranz Lumber Co. v. C. M. & St. P. Ry. Co., 15 I. C. C. 277, 278. (i) On scrap iron in carloads from Doug- las, Ariz., to El Paso, Tex., the only lawfully published rate, 63c per 100 lbs., was exacted. None of this commodity had moved prior to the shipment and for that reason no commodity rate was in effect. The distance was 217 miles. Defendant admitted the rate to be ex- cessive to the extent that it exceeded $3.50 per ton. HELD, the rate charged was unreasonable. Reparation awarded. Darbyshire-Harvie Iron & Machine Co. v. El Paso & S. W. R. R. Co., 15 1. C. C. 451, 452. (j) On shipments of bar iron from Fort Wayne, Ind., to Joliet, 111., the through rate of 9c per 100 lbs. to Peoria, 111., was applied to Joliet as an inter- mediate point. Defendants admitted that Joliet ought properly to be a Chi- cago rate point, and that the failure of defendants to include it in the Chi- cago group in the tariffs naming a through rate of 8c to Chicago was due to an inadvertence. One year after the shipment in question, a Chicago rate of 7c was put into effect by de- fendants. HELD, complainant was en- titled to recover as reparation the differ- ence between the 9c rate and 8c rate, and an order should be entered requir- ing that Joliet be maintained as a Chicago rate point for a period of two years from the date of the effect of the 7c rate. Fort Wayne Rolling Mill Co. V. N. Y. C. & St. L. R. R. Co., 14 L C. C. 514, 515. (k) On iron pyrites in carloads mov- ing during 1907 from New York City to Detroit, Mich., complainant was assessed $3.32 per ton. From 1902 to 1906 the rate had not exceeded $2.34, except for a short period in 1906, when it was $3.28, which rate was reduced in 1906 to $2.34. Shortly after the shipments In question moved, defendants voluntarily established a rate of $2.81. HELD, the rate assessed was unreasonable. Repa- ration awarded. Detroit Chemical Works V. Erie R. R. Co., 13 I. C. C. 363, 365. (1) On ground iron ore from Chicago and Chicago points, including Iron Ridge, Wis., to Pacific Coast terminals, complainant was assessed a rate of 90c. Defendants stated at the hearing they would immediately put into effect a rate of 60c. HELD, the rate charged was unreasonable, and a rate of 60c should be established. Winter's Metallic Paint Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. 409. §97. Iron Roofing, Pipe, Nalfs, Wire. Iron. (a) On pipe, nails, iron and wire in carloads from Stockton, Cal., to Alturas, Cal., a rate of $33.50 per ton was as- sessed ($29 to Likely, $2 to the forward- ing company at Likely, and $2.50 local rate from Likely to Alturas). Com- plainant demanded the return of the $2 charge for the forwarding service, but did not attack the reasonableness of the other rates. No joint rate was in effect from Stockton to Alturas. Without the forwarding service complainant would have been compelled to pay $31.40 to Likely and $2.50 from Likely to Alturas, 658 REASONABLENESS OF RATES, §97 (b)— §100 (a) and it therefore saved 40c by reason of said service. HELD, the charge ex- acted was not shown to be unreason- able. Reparation denied (Clements, Prouty and Lane, Comm'rs, dissenting). Lauer & Son v. S. P. Co., 18 L C. C. 109, 110. (b) On a carload of iron roofing from Wheeling, W. Va., to Nowata, Okla., complainant was assessed 67i/^c, being the fifth-class rate of 22i^c from Wheel- ing to the Mississippi River, plus a commodity rate of -45c thence to destina- tion. The fifth-class rate from the Mis- sissippi River to Nowata, in effect at the time of the shipments, was 43c. Other than Nowata, there were but few points in Oklahoma to which the com- modity rate from the Mississippi River on iron roofing exceeded the fifth-class rate. Some 14 months subsequent to the shipments in question the 67i/^c rate from Wheeling to Nowata was re- duced to 54c. HELD, the portion of the rate from the Mississippi River to Nowata exacted was unreasonable to the extent that it exceeded 43c. Repa- ration awarded. Wheeling Corrugating Co. V. B. & O. R. R. Co., 18 L C. C. 125, 126. §98. Junk. (a) Complainant attacked the rate of $9.60 per ton on junk, C. L., Hanna, Wyo., to Salt Lake City, Utah, equiva- lent to a rate of 48c per 100 lbs. At the time of movement, there was no specific commodity rate on junk, but the Western Classification provided Class C rating on junk in carloads of not less than 30,000 lbs. Subsequent to the time of movement a commodity rate of 30c per 100 lbs. C. L.' was made effective and specifically applicable to junk as described and limited under Class C of the Western Classification. HELD, that the rate exacted was unreasonable to the extent it exceeded $6 per ton. Reparation awarded. Radinskv v. O. j. L. R. R. Co., 21 L C. C. 243* (b) Rate on shipments of rags from Chicago, 111., to Menasha, Wis., and to Appleton, Wis., found unreasonable and subsequently established lower rate pre- scribed for the future. Reparation awarded. Lowenthal & Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 155. (c) Rates on rags from Denver, Colo., to St. Johns. Ore., a suburb of Portland, held unreasonq,bly, reduced and repa- j ration awarded. Radinsky v. C. & S. Ry. Co., Unrep. Op. 492. (d) Rates on shoddy dust should not exceed those in effect on rags. Rapa- ration awarded and lower rates estab- lished. Ford Mfg. Co. v. C. St. P. M. & O. Ry. Co., Unrep. Op. 576. §99. Kanite. (a) Complainant maniifactured a high explosive called kanite, the essential ingredients of which were nitrate of am- monia and some organic materials. Complainant contended that this com- modity was safe for transportation; that it was invariably incased in cartridges or rigid paper tubes, which were water- proof and hermetically sealed for ship- ment; that the rates imposed by de- fendants on the commodity were the same in all cases as those imposed for the transportation of dynamite, viz., first class C. L., double first class L. C. L.; and that kanite should take the same rate as masurite, viz., not in ex- cess of the second class C. L. and li/^ times the first class L. C. L. Defend- ants maintained rates equivalent to third-class rates on common black blast- ing powder C. L. HELD, masurite and kanite are proprietary names for high explosive powders composed essentially of nitrate of ammonia and some organic substance akin to oxidized oil, the exact composition of each being trade secrets. Whatever difference there may be be- tween these explosives in other re- spects, there is none between them from a transportation standpoint, it being conceded that kanite is no more dangerous to carry than masurite. Or- der entered reducing the kanite rate to the basis of the masurite rate. Blumen- stein V. P. & R. Ry. Co., 21 L C. C. 90. §100. Lead Ore. (a) Complainant attacked the rate of $12 per net ton on lead ore and concentrates from the Coeur d'Alene district, Idaho, to Carnegie, Pa., and to Atlantic coast points, though the haul to Carnegie was about 440 miles less than the haul to the coast points, Carnegie being intermediate thereto. From other points in the United States the rates on metalliferous properties were 60c per ton less to Carnegie than to New York. Complainant had a com- petitor located at Perth Amboy, N. J., which COL trolled smokers at East Helena, REASONABLENESS OF RATES, §101 (a)— §103 (b) 659 Mont., and other places. HELD, that the rate to Carnegie is unreasonable to the extent that it exceeds $11.40 per ton or 95 per cent of the rate contem- poraneously charged to Perth Amboy, N. J., and other eastern points now tak- ing the $12 rate. Reparation awarded. Pennsylvania Smelting Co. v. N. P. Ry. Co., 19 L C. C. 60. §101. Leather, Shoe Material. (a) Complainant had shipped to it L. C. L. leather and other materials used in the manufacture of shoes, from points in the New England states and in New York, New Jersey, Pennsylvania, Dela- ware, Ohio and Wisconsin to Jefferson City, Mo. The charges were collected on the basis of the second-class rate to East St. Louis, 111., plus a rate of 191/^c from East St. Louis to destina- tion, made by adding a bridge toll of 2c to the rate from St. Louis, Mo. The rates from point of origin to either East St. Louis or St. Louis were the same, and complainant contended that charges should have been assessed on the St. Louis instead of the East St. Louis combination. At the time ship- ment moved, however, the rates from points of origin to St. Louis included delivery only at the depots of eastern lines, and the rates from St. Louis to Jeffer- son City applied only from the depots of the western lines in St. Louis; there- fore had the St. Louis combination been used, a drayage charge of 3c per 100 lbs. would have had to be paid. Sub- sequently a tariff was filed under which the eastern line absorbed these drayage charges. No evidence was offered to show that the rates were unreasonable in themselves. HELD, upon the record the rates charged were not unreason- able. Complaint dismissed. Priesmeyer Shoe Co. V. C. & A. R. R. Co., 23 I. C. C. 78. §102. Lime. (a) On a carload of agricultural lime shipped Sept. 12, 1908, from Fred- erick Road, Md., to Englishtown, N. J., a class rate of 17c per 100 lbs. was as- sessed. From Jan. 2, 1906. to April 1, 1908, a commodity rate of $1.60 per net ton was in force over the lines of defendants for a distance of 172 miles. Nov. 28, 1908, defendants established a commodity rate of $1.65 per net ton between Baltimore and Englishtown and made this rate applicable from Frederick Road. For several years prior to the shipment in question, Baltimore rates would have been applied to Frederick Road but for an oversight in the tar- iff. Defendants admitted the unreason- ableness of the charge exacted. HELD, said 17c rate was excessive. Repara- tion awarded on the basis of $1.65 per net ton. Okerson v. Penn R. R. Co., 18 I. C. C. 127. §103. Live Stock Rates. (a) The transportation of live stock demands, above almost any other kind of freight, expedition in service. Cattle or other live animals should be gotten to the market at the earliest possible moment and with the least possible rail- road haul. Considering, therefore, the nature of the transportation, almost any additional length of haul will render the route unduly circuitous, and will justify the Commission in establishing a joint rate over the direct line even when a two-line haul is involved. In Re Investigation of Alleged Unreason- able Rates on Meats, 23 I. C. C. 656, 662. (b) Upon various applications for modification of the conclusions of the original report in 22 I. C. C. 160, it is held that (1) the Commission declines to modify the mileage scale originally prescribed for the movement of live stock from various southwestern points to packing houses; (2) it declines to change its ruling to the effect that 2i^c should be added for an additional line haul so far as shorter distances are concerned, but its conclusion is modified as to longer distances to the effect that no addition on account of the two-line haul should be made where the distance exceeds 500 miles, and in no case for a shorter distance should more than one addition be made, and there should be no addition where the two lines are part of the same system; (3) the former rate of 38c to Oklahoma City from El Paso should be continued as a proportional rate on movements of live stock coming into El Paso by rail, and the mileage scale should be confined exclusively to the local move- ment from El Paso; (4) in the great majority of instances carriers should establish through routes and joint rates via all reasonably available direct lines; if in any case they fail to do so, the attention of the Commission may be called to the matter by an intervening 660 REASONABLENESS OF RATES, §103 (c) — (d) petition filed in this proceeding, where- upon investigation will be made; (5) rates on stock cattle ought not to ex- ceed 75 per cent of the rates prescribed by the Commission for the movement of beef cattle; (6) live-stock rates into Oklahoma City and from Oklahoma City to Kansas City, are, in most in- stances, higher than the rate to Kansas City and ought to be so, since it seldom happens that the direct line from the point of origin to Kansas City is through the Oklahoma market; (7) the live- stock rates prescribed to Oklahoma City do not discriminate against it in com- parison with rates from the same points of origin to Kansas City, because for the shorter distances Oklahoma City pays somewhat less and for the longer distances pays slightly more mile for mile than does Kansas City, but on the average rates are substantially the same; (8) while it would be desirable If the same scale of live-stock rates applied both to Fort Worth and to Oklahoma City from points in Texas, Btill the discrimination resulting from the difference between the Texas scale prescribed by the Texas commission and that prescribed by this Commission Is not such as can be pronounced undue, and neither is the situation thus created one with which the Commission can properly deal; (9) the southeastern territory to which the 3c differential on fresh meats and packing house products from Fort Worth applies is as follows: The territory entitled to this differential Is bounded upon the north by a line beginning at Greenville, Miss., and ex- tending east along the line of the South- em Railway to Birmingham, thence via the Southern Railway to Atlanta, thence via the Georgia Railroad to Augusta, and thence via the Southern Railway to Charleston; to all points on and south of this line the 3c differential from Fort Worth should apply, but to points north of this line rates should be the same up to the Memphis and Vicksburg gateways from both Okla- homa City and Fort Worth; (10) while still of the opinion that rates from both Kansas City and Wichita to Memphis for these respective territories ought to exceed that from Oklahoma City by 25^c per 100 lbs,, the Commission will not at this time require carriers from Wichita to Increase the differential to that amount, but will leave the present adjustment in effect; (11) rates of 12c on packing-house products and 18i/^c on fresh meats from Wichita to Kansas City, 17c from Oklahoma City and 21c from Fort Worth upon packing-house products, and 26c from Oklahoma City and 32l^c from Fort Worth on fresh meats, would be just and reasonable rates and are prescribed for the future; (12) southern carriers may very prop- erly meet from both Oklahoma City and Fort Worth via Memphis and Vicksburg the rates established via St. Louis to New York and other eastern territory; although the Commission has recently granted its dispensation under the fourth section, permitting them to meet these rates and to maintain at the same time higher rates to intermediate territory, it cannot recognize the force of the contention that the rate itself should be established through these gateways; (13) carriers should publish tariffs according peddler-car serv- ice under a rate upon packing-house prod- ucts of 130 per cent of the carload rate and upon fresh meats of 50 per cent of the carload rate, and a minimum may be required equivalent to the earnings upon 10,000 lbs, of fresh meats to the most distant point, but refrigeration should be provided or paid for by the shipper In addition to the above rates; (14) other modifications suggested the Com- mission denies or reserves for future consideration, or suggests they be taken up by separate complaint. In those re- spects in which this supplemental re- port modifies, adds to, or interprets the original report, the Commission relies upon the carriers to observe the sug- gestions made. In Re Investigation of Alleged Unreasonable Rates on Meats, 23 L C. C. 656. (c) The live-stock rates prescribed to Kansas City in the original report, 22 I. C. C. 160, were approved as a whole, and there is no warrant for the assumption that in those cases where the mileage scale prescribed by the Commission might be higher than particular rates in force, such rates might be increased to equal the mile- age scale. In Re Investigation of Al- leged Unreasonable Rates on Meats, 23 I. C. C. 656, 660. (d) Rates on cattle and sheep in carloads from Phoenix, Ariz., to Los Angeles, Cal., via Maricopa and via Parker were: Cattle, $126.85 per 36-foot car; sheep, single deck, $88.50; sheep, double deck, 170 per cent of the single- REASONABLENESS OF RATES, §103 (e)— (h) 661 deck rate. The rate from El Paso to Los Angeles was $105 for cattle and $84 for sheep, single deck, the distance be- ing 814 miles, as compared with 441 miles from Phoenix. The rates had in- creased from 1895 to 1905 from Phoenix $20.15 on cattle, and $20.30 on sheep. Defendants justified comparative high rates on the ground that the haul from Phoenix was in part over a branch line on which the cost of operation was high and the tonnage carried light. HELD, the rates complained of were un- reasonable, and the following rates were prescribed: Cattle, $95; sheep, single deck, $65; sheep, double deck, $110.50. Maricopa County Commercial Club v. S. P. Co., 22 L C. C. 429. (e) In 1904 the T. & P. Ry. Co. can- celed all joint interstate rates on live stock from points on its line, including a rate of 44c from Midland, Tex., to Kansas City, Mo., via the T. & P. and M. K. & T. railways. In May, 1907, this joint rate of 44c was republished, but it was canceled on June 11, 1907, on account of disagreement between these carriers, respecting the divisions of the rate. In December, 1907, when com- plainant's shipments moved, the rates assessed were the combination of inter- mediate rates upon Ft. Worth, Tex., which exceeded the 44c rate formerly in force. A few months after the move- ment of these shipments defendants agreed upon divisions of the former rate of 44c, which was again published and is still in force. HELD, that the rates assessed upon the shipments in question were unreasonable in so far as they exceeded 44c per 100 lbs. Repa- ration awarded. Opinion expressed that defendants should join in the payment of this reparation upon the basis of the present division of the 44c rate. Young- blood V. T. & P. Ry. Co., 21 1. C. C. 569, 572. (f) Complainants shipped eight car- loads of cattle, Klamath Falls, Ore., to Tacoma, Wash., via Weed, Cal. Repara- tion was asked on the basis of the rate in force, Klamath Falls' to San Fran- cisco, Cal., when the traffic moved. The proportional rate, Klamath Falls to Port- laud, was also attacked. Shortly prior to this shipment class rates from Klamath Falls to Portland were reduced to sub- stantially the San Francisco basis, and about seven months thereafter Portland was given the same commodity rate as San Francisco on live stock from Kla- math Falls. This reduction was made on solicitation of commercial interests at Portland and not because the former rates were considered unreasonable. The haul from Klamath Falls to San Fran- cisco was over a lo"W-grade, downhill route, while to Portland it was over a mountainous route of steep grades and sharp curves, more expensive to op- erate. Klamath Falls is 436 miles from San Francisco and 508 miles from Port- land. The average gross car-mile earn- ings, Klamath Falls to Portland, were about 27c, and to San Francisco 25c. HELD, the voluntary reduction of rates to Portland* does not of itself constitute proof that the former rates were exces- sive, and on the showing made respect- ing the difference in operating condi- tions the Commission is not justified in finding that the rate to San Francisco was properly a measure of reasonable- ness of the rate to Portland. Carstens Packing Co. v. S. P. Co., 20 L C. C. 165, 166. (g) Complainant attacked defendant's rate for carriage of horses in carloads between El Paso, Tex., and Phoenix, Ariz., 433 miles, rate per car $500; be- tween Phoenix, Ariz., and Los Angeles, Cal., 451 miles, rate per car $400, and between Phoenix and San Francisco, Cal., 920 miles, rate per car $575. The Commission found that reasonable mer- chandise rates between El Paso and Phoenix and between Phoenix and Los Angeles were $3,75 and $4 per 100 lbs., respectively. HELD, that the rate on horses should be somewhat less than the rate on an equivalent weight of merchandise, and that the rates com- plained of were excessive to the extent that they exceeded $300 a car between El Paso and Phoenix, $320 between Phoenix and Los Angeles and $470 be- tween Phoenix and San Francisco. Ari- zona Ry. Commission v. Wells, Fargo & Co., 20 I. C. C. 571. (h) On a carload of horses from Cbambersburg, Pa., to Warwick, N. Y., 228 miles, complainant was assessed 42c, the shipment moving via Shippensburg, Allentown and Easton. Two of defend- ant carriers admitted the rate charged to be unreasonable, and 33c to be a reasonable rate. Other defendants de- nied the unreasonableness of the rate. HELD, the rate charged was unreason- able. Reparation awarded on the basis 662 REASONABLENESS OF RATES, §103 (i) — (o) of 33c. Vanness v. L. & H. R. Ry. Co., 17 I. C. C. 307. (i) Complainant attacked the rates upon sheep from Iowa points to Chicago, and asked for the establishment of rates in double-deck cars. Sheep in single-deck cars only load from 12,000 to 14,000 lbs., and for that reason the rates are higher when so shipped than those upon hogs or cattle. In double- deck cars, sheep can be readily loaded to 22,000 lbs., and when so handled the cost of transportation does not exceed that of cattle. Defendants made rates in double-deck cars in states adjoining Iowa. It appeared that no substantial burden would be imposed upon them to provide such facilities for Iowa. HELD, the rates attacked were unreasonable; rates in double-deck cars should be established; and where defendants failed to provide double-deck cars upon reason- able notice, double-deck rates should apply on all shipments in single-deck cars. Corn Belt Meat Producers' Ass'n v. C. B. & Q. R. R. Co., 17 I. C. C. 533, 535. (j) In Corn Belt Meat Producers' Ass'n v. C. B. & Q., 14 I. C. C. 376, the Commission held that the 231^0 rate on live stock, which applied from the Mis- souri River and points 150 miles east thereof, to Chicago, was excessive, and the strip taking said rate should not ex- ceed from 50 to 75 miles in width from the Missouri River. Since the decision defendants lowered the rates on cattle and raised the same on hogs as an al- leged compliance with the order in said case, the result being that on the whole the charges by defendants appeared to be increased, rather than reduced. HELD, that the alleged compliance with the order was unsatisfactory; that de- fendants should take Denison, la., as the most easterly station in the 23^/^0 group, and Lisbon as the most easterly station in the 19c group, and should divide the intervening territory of about 225 miles into ^^c groups, making the westerly groups somewhat larger than the easterly, but that this adjust- ment should not apply to territory in the northwestern portion of the state, which should be divided into two groups, taking rates of 24c and 24i^c; and that rates on hogs attacked in the former case should be restored; but that the present decision should not be construed as having any reference to terminal charges at Chicago. Corn Belt Meat Producers' Ass'n v. C. B. & Q. R. R. Co., 17 I. C. C. 533, 537, 539. (k) Defendants' tariff, fixing rates on cattle in carloads from Anaconda, Mont., to Tacoma, Wash., provided that for every additional foot in length of the car over 36 ft. 6 in., ZYz per cent should be added to the rate, but made no pro- vision when cars were shorter than 36 ft. 6 in. The car furnished complainant was 34 ft. and he was charged for the 36 ft. and 6 in. rate. Subsequently de- fendants inserted a rule making a like reduction per foot for cars under 36 ft. 6 in. HELD, the rate exacted was unreasonable. Reparation awarded. Car- stens Packing Co. v. N. P. Ry. Co., 15 I. C. C. 431. (1) Where upon carload shipments of stock cattle from South St. Paul, Minn., complainant is charged the beef cattle rate, and it is the universal prac- tice among railroads in the Northwest to haul stock cattle at a rate 75 per cent of the beef cattle rate, and defend- ant admits such customary rate is rea- sonable, and by a later tariff puts it into effect, complainant is entitled to reparation on the basis of 75 per cent of the beef cattle rate. Slimmer & Thomas v. C. St. P. M. & O. Ry. Co., 14 L C. C. 525, 526. (m) The reasons for a lower rate upon stock cattle than beef cattle are: First, the less value of the freight; sec- ond, the heavy loading of the car, and, third, the fact that the carrier obtains a second haul from the traffic after its weight has been increased by feeding. Slimmer & Thomas v. C. St. P. M. & O. Ry. Co., 14 I. C. C. 525, 525. (n) On shipments of carloads of cat- tle from Anaconda, Mont., to Tacoma, Wash., defendants' published rate was $110 per 36-foot 0-inch car. Complainant ordered 36-foot cars and was furnished 34-foot cars. At the time of the shipment the tariff made no provision for a reduc- tion in the rate for cars less than 36 feet, 6 in., but later a reduction of 3i/^c per foot was permitted. Complainant was charged at the 36-foot-car rate and suf- fered a loss of $15.40. HELD, he was entitled to reparation to the amount of this loss. Carstens Packing Co. v. N. P. Ry. Co., 14 I. C. C. 577, 578. (o) Defendants prescribed a* mini- mum of 24,000 lbs. on 36i^-foot cars of cattle originating west of a line drawn REASONABLENESS OF RATES, §103 (p) 663 from Mandan, N. D., to Velva, Canada. This minimum had been in force for many years without complaint from shippers. East of this line a lower minimum was prescribed. The reason for such discrimination was that the bulk of cattle originating west of the line was fatted and would load easily in excess of the minimum required. No evidence was offered to show that the rates, as practically applied under the minimum, were unreasonable. HELD, the demand for a lower minimum and for reparation should he denied. Reed V. C. M. & St. P. Ry. Co., 14 I. C. C. 616, 618. (p) Since the filing of the decision in Cattle Raisers' Association of Texas v. M. K. & T. Ry. Co., 11 I. C. C. 296, Aug. 16, 1905, comdemning an advance on rates upon live stock from breeding pastures of the Southwest to northern ranges, and from various maturing points west of the Missouri River to the principal markets of consumption, the amendment to the Act was adopted in June, 1906, and a further hearing in the present case was extended to the questions involved in the former deci- sion. In the present case the Commis- sion affirmed its findings of fact in the former case that live stock from the points in question moved with regu- larity and uniformity, and that the rela- tive amount of damages paid by de- fendants for injuries to live stock in transit, in proportion to the gross re- ceipts derived from the business, was as found in the former decision. De- fendants' expert witness at the former hearing took the operating divisions of the Santa Fe System, over which the traffic in question mostly moved, and determined the total amount of money expended in the maintenance and opera- tion of each of these divisions for a given year. He apportioned the total amount between passenger and freight and divided the amount applicable to freight by the total number of tons hauled over the division during the year, including the weight of the car, and determined in this way the cost of hauling a gross ton. He then started with a carload of cattle and determined the cost of hauling the car over the various divisions by multiplying tht number of gross tons by the gross ton cost upon each division, obtaining in this way the "operating cost" of moving the car from its point of origin to des- tination. To this he added interest and taxes, distributed upon a car mileage basis, thus obtaining what he termed the "total cost of moving a carload of cattle." In arriving at this cost he as- sumed that 90 per cent of stock cars were returned empty, and charged upon the same gross ton basis for this empty haul. He then inquired what revenue the company received for the handling of the car. If this was more than the total cost, he denominated the differ- ence a profit, and, if less, a deficit. In this way he deduced the results of trans- porting live stock from some 20 or 30 different points, mostly from Texas to Kansas City, Chicago and St. Louis. He added together the profits and the def- icits, subtracted the sum of the profits from the sum of the deficits, divided the remainder by the total number of points, and deduced the conclusion that there was a deficit on the haul of some $5 per car. In reaching its decision at the former hearing, the Commission ignored the testimony of this witness m the ground that, by selecting the proper points, he could show any results he desired, and that such a basis of calculation was worthless, since it was based on the average expense of all kinds of traffic and irrespective of the length of haul and other conditions. The condition of the cattle industry, while somewhat improved since the former hearing, was not in a generally pros- perous condition. The Texas lines in- volved showed an increase of net earn- ings since the former hearing. It appeared these Texas lines must be virtually reconstructed in the immedi- ate future, that process to include re- grading, ballasting and the laying of heavier rails, and that the only money available for that purpose must come from increased revenues. HELD, that the decision of the Commission at the former hearing, condemning the advance of rates on live stock, should be re- affirmed. Decision reducing from $2 to $1 the terminal charges at the Union Stock Yards, Chicago, reaffirmed, and ter- ritory defined to which the decision should apply. (Knapp, Comm'r, dissenting.) Cattle Raisers' Ass'n of Texas v. M. K. & T. Ry. Co., 13 I. C. C. 418, 433-435; Preliminary injunction to restrain the order of the Commission denied, M. K. & T. R. R. Co. V. L C. C, 164 Fed. 645, 650. 664 REASONABLENESS OF RATES, §103 (q)— §104 (a) (q) Complainant packers at Seattle attacked the rate of $170 on hogs in 36- foot single-deck cars from St. Paul, Mis- souri River points and points lying from 150 to 200 miles west of the river, to Seattle. Under the rate attacked ship- ments of hogs to complainants' plant from the points in question increased and their business greatly prospered. Except for a few brief periods defend- ants had maintained no rates during many years preceding lower than the rate attacked, and such rate was on the average more favorable. Complainants admitted that a rate of $261 for a 36- foot double-deck car was reasonable, which rate was equivalent to the $170 rate for a single-deck car. Complain- ants sought to show they were entitled to a rate of $148.37 by proof that through illegal rebates they had for many years secured that rate. Com- parison of rates from points in Ne- braska, Texas, Kansas and Oklahoma to Seattle and other coast points in- dicated that such rates practically cor- responded with the rate attacked. The rate on packing-house products from the Missouri River to Seattle gave com- plainants an advantage over the pack- ers at such point of origin, and while complainants' shipments of hogs to Se- attle had steadily increased, the ship- ments of packing-house products from Missouri River points to Seattle had not done so. HELD, the rate attacked was not shown to be unreasonable. Frye & Bruhn v. N. P. Ry. Co., 13 I. C. C. 501, 510. (r) Complainant demanded the estab- lishment of double-deck car rates on hogs from Missouri River points to Se- attle. Except for a few short periods no such rates had been in effect for many years. No evidence was offered to show that on shipments in double- deck cars the hogs could go through without unloading for feeding and rest- ing so as to avoid delay and shrinkage in a way that could not be accom- plished in single-deck cars. A reason- able rate was in effect on single-deck cars. HELD, the evidence was not suf- ficient to warrant the ruling demanded. Frye & Bruhn v. N. P. Ry. Co., 13 I. C. C. 501, 511. (s) On carloads of hogs from Ans- ley, Aurora, Broken Bow and Central City, Neb., complainants were assessed a rate of $200 for a 30-foot single-deck car, which rate was equivalent to a rate of $240 for a 36-foot single-deck car. Shortly after shipment moved, a rate of $170 for a 36-foot single-deck car was made effective. HELD, the rate charged was unreasonable. Reparation awarded on the basis of the new rate. Frye & Bruhn v. N. P. Ry. Co., 13 I. C. C. 501, 512. (t) On carloads of cattle from Leon, Kan., to Chicago, complainant was in- duced to route via the C. M. & St. P. Ry. and the St. L. & S. F. Ry., and a rate of 34c was charged. There was in force over the St. L. & S. F. and the C. R. I. & P. a rate of 31.5c. The C. M. & St. P. agent assured complainant that he would be charged the 31.5c rate. Defendant admitted a rate of 34c to be unreasonable with respect to the particular shipments in question. A 31.5c rate yielded 8.25 mills per ton mile. Subsequent to the shipments and prior to the filing of the complaint, de- fendant put into effect the 31.5c rate over the route shipments moved. HELD, the rate assessed was unreasonable. Reparation awarded. Morti v. C. M. & St. P. Ry. Co., 13 L C. C. 513, 515. §104. Locomotives. (a) Complainant attacked the rea- sonableness of a change proposed to be made by the Southern Classification Committee in the rating of locomotives and locomotives and tenders, live or dead, on their own wheels. The pro- posed change substituted sixth-class rates on live or dead locomotives for the previously existing mileage rate of 35c a mile on locomotives, dead, and 30c per mile on locomotives, live. The same rate existed on locomotives, live, except that an allowance of 50 per cent of the gross weight was made and the locomotive must be accompanied by an attendant, who paid full passenger fare, and whose duty it was to keep all running parts well oiled and immediately report any trouble to the conductor of the train. HELD, that on account of the varying weights of locomotives it is not fair to tax the lighter locomotives at the same rate as the heavier equip- ment, for what would be a reasonable charge for a 200-ton locomotive mani- festly would be unreasonable for a locomotive weighing only 50 tons; that considering all the circumstances con- nected with their transportation loco- motives on their own wheels were much in the nature of an anomalous REASONABLENESS OF RATES, §105 (a)— (d) G65 commodity, particularly susceptible to Individual treatment; that both as a matter of equity and expediency it is rare indeed that a flat ton mile rate can be prescribed. The great diversity in the characteristics of the objects transported, as well as the kaleidoscopic succession of the conditions under which this transportation takes place, combine to make such a rate when universally applied both unreasonable and discrimi- natory. However, insomuch as loco- motives stand in a class by themselves and present a rate problem in many respects different, perhaps, from any that has been heretofore brought to the attention of the Commission, under all the circumstances, and accepting as a basis the per ton mile revenue of 5.83 mills arrived at by applying the present mileage rate of 35c to the aver- age gross weight of 60 tons, a reason- able rate for the transportation of loco- motives and locomotives and tenders, dead, on their own wheels, in Southern Classification territory should not exceed the following rate per ton mile applied to the gross weight of locomotives and locomotives and tenders: distance not over 200 miles, rate per ton mile gross weight on locomotives 6 mills; over 200 and under 300 miles, 5.8 mills; over 300 and under 400 miles, 5.6 mills; over 400 and under 500 miles, 5.4 mills; over 500 and under 600 miles, 5.2 mills; over 600 and under 700 miles, 5.1 mills; over 700 miles, 5 mills. In calculating the total charge the rate applicable to Its respective zone should be applied for the distance in that zone only; the rate applicable to the final zone should not be applied to the entire haul. FUR- THER HELD, no testimony having been presented on the reasonableness of the advance over the present rate of 30c per mile on live locomotives, the bur- den of proof has not been met by the carriers and the proposed change must be withdrawn. In Re Advances in Rates the Transportation of Locomo- tives and Tenders, 21 I. C. C. 103. Ord"er modified to prescribe the mini- mum charge to be based on a minimum haul of 75 miles. 21 I. C. C. 252. §105. Lumber and Products. See Cars and Car Supply, §34 (a); Classification. §17; Facilities and Privileges, §21 (p), (a) In Ferguson Saw Mill Co. v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 396, the Commission found the rates on cy- press lumber from Little Rock and Woodson, Ark., to points in Oklahoma, Kansas and Missouri to be unreason- able. The present proceeding involved a supplemental complaint assailing the rates from the same points of origin to a large number of destination points to the northwest of Kansas on the lines of various carriers. HELD, under the decision of the Commission re- ferred to, the rates complained of are unjust and unreasonable and that the rate from Little Rock and Woodson to Kansas City, Mo., which is now 24c, should not exceed 18c per 100 lbs. and the other rates to points other than Kansas City should be adjusted upon the basis of the differentials now in force over or under the rate fixed for Kansas City. Reparation awarded. Fer- guson Sawmill Co. v. St. L. I. M. & S. Ry. Co., 23 I. C. C. 229. (b) A rate of ll^c per 100 lbs. for the transportation of oak plank in carloads from Kansas City, Mo., to Des Moines, la., held to be unreason- able to the extent that it exceeded the rate from St. Louis to Des Moines of 91/^c, the adjustment between the lat- ter points being admitted to be the proper adjustment between Kansas City and Des Moines. Reparation awarded. Wheeler Lumber Bridge & Supply Co. V. St. L. I. M. & S. Ry. Co., 23 I. C. C. 514. (c) The transcontinental lines ap- plied a rate of 75c per 100 lbs. to trans- portation of hard lumber from all points on the Missouri River and east to Pa- cific coast terminals. This rate was raised to 85c and ordered restored as to Chicago and Chicago points and Mississippi River points. The railroads then applied the 85c rate to points in southern Michigan, immediately east of the 75c territory. Complainants alleged that they competed directly with mills in 75c territory; that 10c per 100 lbs. amounted to $4 per 1,000 ft. on rough hardwood lumber or from $2 to $2.50 on dressed hardwood lumber and under this handicap they could not sell on the Pacific coast in competition with mills in 75c zone. HELD, that the 85c rate was unreasonable. A maximum rate of 80c prescribed. Mich. Hardwood Mfrs.' Ass'n v Trans. Freight Bureau, 22 L C. C. 387. (d) Complainant attacked a rate of 43c per 100 lbs. charged by defendant"? 666 REASONABLENESS OF RATES, §105 (e) — (k) for the transportation of cross ties, C. L., Yaden, Ky., to Cincinnati, O. It appeared there was no rate at all law- fully applicable to these shipments. At the time of shipment a commodity rate of lie was in effect from Dal and Verne, Ky., to Cincinnati points situ- ated near Yaden, and one of which is further distant. Subsequently the com- modity rate was applied to Yaden. HELD, that the charges exacted were unreason- able to the extent they exceeded lie per 100 lbs. Reparation awarded, Wheeler- Holden Co. v. L. & N. R. R. Co., 21 L C. C. 237. (e) On Sept. 13, 1910, the Southern Pacific Co. filed with the Commission Its tariffs advancing the rates on rough green fir lumber and lath from points in the Willamette Valley to San Fran- cisco and bay points to $5 per ton. In a former proceeding, 14 I. C. C. 61, the Commission had reduced these rates to $3.40 per ton from points upon the main line of the Southern Pacific east of the Willamette River, and $3.65 per net ton from points upon its line west of the river, and it was upon the ex- piration of its order that the proposed advance is made. On the average haul from the points to which it applied the $3.40 rate produced a rate per ton mile of 5.48 mills. HELD, that the rough green lumber cannot move from the mills of complainants to market unless it receives a rate lower than $5 per ton and that this rate in so far as it applies to rough green fir lumber and lath is unjust and unreasonable to the extent that it exceeds $3.50 per net ton of 2,000 lbs. from points upon the line of the defendant east of the Wil- lamette River except from the Wend- llng branch so called, and that rates from the Wendling branch and from stations upon the west bank of the Willamette River should not exceed $3.75 per net ton. This rate does not apply to Portland mills which are far- ther distant and where conditions are dissimilar. Oregon & Washington Lum- ber Mfrs.' Ass'n v. S. P. Co., 21 I C C. 389. (f) Ordinarily the same rate is applied to all lumber without reference to its value or conditions; but to this general rule exceptions are sometimes made. Oregon & Washington Lumber Mfrs.' Ass'n v. S. P. Co., 21 I. C. C. 389, 395. (g) Complainant attacked the rate on yellow pine lumber and the products thereof which took yellow pine lumber rates from Pine Bluff, Ark., to Memphis, Tenn., of 14c per 100 lbs., a distance of 191 miles, yielding a revenue of 14.7 mills per ton mile. HELD, that a rate of lie per 100 Ids. from Pine Bluff to Memphis affording earnings via the route of the defendants of ll^/^ mills per ton mile and via the short line route should it see fit to publish the rate of 14 mills per ton mile would afford ample compensation for the serv- ice rendered. Sawyer & Austin Lum- ber Co. V. St. L. I. M. & S. Ry. Co., 21 I. C. C. 464. (h) Rates on cross ties of 5c per 100 lbs. from points iu southeastern Georgia to Jacksonville, Fla., not found to be unreasonable. Baxter & Co. v. G. S. & F. Ry. Co., 21 I. C. C. 647, 649. (i) A carload of gum lumber was shipped from Brilliant, Ala., to Thebes, 111., under a rate of 23^c. At time of shipment the rate in effect was 16 ^/^c, Brilliant to Cairo, 111., Thebes being only 29 miles farther. Subsequent to shipment rates from Cairo to Thebes were" re- duced from 7c to 4c. HELD, that al- though Thebes is commercially less im- portant than Cairo and its rates less subject to competitive forces the jate was unreasonable to the extent that it exceeded 20l^c. Beekman Lumber Co. V. I. C. R. R. Co , 20 I. C. C. 98, 99. (j) Complainants shipped a carload of rough fence posts, Devol, Okla., to Olney, Tex., on which a rate of lie per 100 lbs. was collected, a distance of 65 miles. This same shipment moved from Tushka, Okla., to Devol, 312 miles, under a rate of llV4,r,. Contemporane- ously defendants maintained a rate of 31/^0, Frederick, Okla., to Burburnett, Tex., a distance of 37 miles. IIKLD, the rate from Devol to Olney should not exceed 7c. R-^paiation awarded. Max- well V. W. F. & N. W. Ry. Co., 20 I. C. C. 197, 199. (k) Complainants operated saw mills at Williams, Flagstaff and Cliffs, Ariz., •^nd attacked the rates on lumber and tim- ber from these points to Red Rock, 306 miles; Tucson, 339 miles; Benson, 387 miles; Tombstone, 416 miles; Bis- bee, 451 miles; Naco, 440 miles; Doug- las, 466 miles; Globe, 577 miles; IMesa, 232 miles; Kelvin, 298 miles, Winkel- man, 313 miles. Complainants met REASONABLENESS OP RATES, §105 (1)— (n) 667 competition in selling their products at these points with lumber and timber which moved from the Northwest by water to San Pedro and from thence by rail. The haul from San Pedro to any of these points was about 200 miles longer than from complainant's mills, but San Pedro took a lower rate. HELD, that the rates from the mills of complainant to the following destina- tions, via through routes and under joint rates, should not exceed: Red Rock and Tucson, 28c; Benson, 30c; Tomb- stone, 33c; Bisbee, 36c; Naco, 36c; Douglas, 38c; Globe, 44c (timber being given a rate of from 9 to 14c lower) ; Mesa, 26c; Kelvin, 27c; Winkelman, 28c (timber 8c less); the rates pre- scribed being about 7c less than from San Pedro, and a reduction to about 66 2-3 per cent of the former rates. Saginaw & Manistee Lumber Co. V. A. T. & S. F. Ry. Co., 19 I. C. C. 119. (1) Complainant shipped lumber in carloads, Victoria, Va., to Alliance, O., under the combination rate of 24c, the cheapest route in effect at the time. It did not appear at the hear- ing. Subsequently defendant established a rate of 19i^c. HELD, the local rate exacted was on the basis of locals along the lines of defendants through this territory. Complaint dismissed. Craig Lumber Co. v. Virginian Ry. Co., 19 L C. C. 144. (m) Complainant attacked the rate on lumber in carloads from Omaha, Neb., and Council Bluffs, la., to points in South Dakota on the Niobrara branch (a branch line) of the C & N. W. R. R., points in Wyoming on a branch line of the C. B. & Q. R. R., Torrington to Guernsey and Ironton, inclusive, po'nts on the U. P. R. R. from .Jule?burg, Colo., to LaSalle, Colo., and from Tracy, Wyo., to Cheyenne, Wyo., and to points on the C. R. I. & P. R. R. from Mahaska, Kan., to Roswell, Colo. The rates attacked on the C. & N. W. appeared to be about Ic per 100 lbs. higher than for similar hauls from Omaha to points in Nebraska on the same branch; on the C. R. I. & P. the rates attacked appear to be about li^c higher than for similar hauls in Ne- braska on the same line; the same romparison on the U. P. showed that the Wyoming points paid a little over 3c per 100 lbs. higher than for similar hauls in Nebraska and the rate to the Colorado points showed almost the same comparison. On the C. B. & Q. R. R. the rates to Wyoming points were about 2c higher than for hauls in Nebraska. It appeared that defendants' rates were consistently graded out from Omaha to the Nebraska state line and that with the exception of the C. & N. W.'s they increased abruptly as soon as the state line was reached. HELD, that the rates exacted are unreasonable and the rates attacked on the C. R. I. & P. R. R. should be reduced from Ic to 2c; the rate to Mahaska, Kan., 130 miles, reduced to 9c; and to Goodland, Kan., 384 miles, to 19c, and other hauls proportionately. Rates on the U. P. attacked are reduced by approximately the same amount; thus the rate to Julesburg, Colo., 371 miles, reduced to IS^^c; to Tracy, Wyo., 477 miles, to 21i/^c, and to other points complained of on the same line pro- portionately; on the C. B. & Q. the rates reduced somewhat* over Ic per 100 lbs.; to Vaughan, Wyo., 519 miles, to 31c; to Guernsey, Wyo., 549 miles, to 33c; and other points proportionately. These points being on a branch line, therefore the rates could be higher than on main lines in well-developed terri- tory where the density of traffic is much greater. Commercial Club of Omaha v. C. & N. W. Ry. Co., 19 L C. C. 156. (n) Prior to June 1, 1908, the de- fendant carriers had in effect joint rates on yellow pine lumber and its products from producing territory in Louisiana, Texas, Arkansas and Mis- souri to Lincoln and Omaha, Neb., of 24c and 23c, respectively. These rates were subsequently raised to make cer- tain rate adjustments on account of various orders of the Commission to 261/^c. The Nebraska legislature passed an Act which compelled these rates again to be lowered. There remained, however, an area in western Nebraska intermediate to points reached by the defendant's lines in Colorado and Wyom- ing, to which through rates made up of the Omaha and Lincoln combination would exceed the Colorado common point and Cheyenne rates. HELD, the rate to Colorado common points should be observed as maximum to points in western Nebraska east of the Colorado line, while the Cheyenne rate should be observed as a maximum to points on the line of the U. P. R. R. from Ral- ton to Smeed, Neb., inclusive. Defend- ants required to establish rates from 668 REASONABLENESS OF RATES, §105 (o) — (t) the various producing points named in the complaint to western Nebraska points reached by the lines of the C. B. & Q. and the U. P. R. Rs., not to exceed: On the U. P., Joselyn to Bar- ton, Neb., 37c per 100 lbs.; Ralton to Smeed, Neb., 40c; on the C. B. & Q., Smithfield to Venango, Neb., and from Oxford Junction to Sanborn, Neb., 37c. Reparation awarded. Louisiana Central Lumber Co. v. C. B. & Q. R. R. Co., 19 L C. C. 333. (o) On carloads of oak ties from points in Texas billed through via El Paso to Douglas, Ariz., complainants were assessed 25c for the haul to El Paso over the T. & P. R. R. No joint through rates were in effect from the points of origin in question to Douglas. The average distance to El Paso from said points of origin is 820 miles. For many years a rate of 34c was exacted on lumber agd ties to El Paso. The 25c rate attacked was prescribed by the Railroad Commission of Texas and yielded 6 mills per ton mile. A pro- portional rate on pine ties of 18c was In effect at the time of shipment to El Paso on cars destined to points In Arizona and New Mexico. HELD, the rate exacted was not shown to be unreasonable. Reparation denied. Con- tinental Lumber & Tie Co. v. T. & P. Ry. Co., 18 L C. C. 129, 131. (p) Following Kindelon v. Southern Pacific Co., 17 I. C. C. 251, the rate of 85c on hardwood lumber in carloads from points on and west of the Mis- sissippi River to San Francisco, Cal., and other Pacific terminals is held to be unreasonable to the extent that it exceeds 75c. Reparation awarded in cases involving pertain points of origin and denied following White Bros. v. A. T. & S. F. Ry. Co., 17 L C. C. 288. in cases involving Glidden, Wis., and points beyond Memphis, Tenn., as points of origin. Maris v. S. P. Co., 18 I. C C. 301, 302, 306, 307. (q) On carloads of hardwood lumber from Black Rock, Ark., to San Fran- cisco, Cal., a rate of 85c was charged. HELD, following Kindelon v. S. P. Co., 17 L C. C. 251, the rate charged was unreasonable. Reparation awarded on the basis of 75c. White Bros. v. A. T. & S. F. Ry. Co., 17 I. C. C. 416. (r) On shipments of logs in carloads to Louisville, Ky., from Dyersburg, Hen- ecks, Menglewood, Richwood and Troy, Tenn., complainant was assessed on some of the carloads a rate of 10c. The published rate was 12c. Later de- fendants established and acknowledged as reasonable a rate of 8c and of S^/^c. HELD, the 10c charge exacted was un- reasonable. Reparation awarded. New Albany Box Co. v. I. C. R. R. Co., 16 I. C. C. 315, 317. (s) On a carload of split-oak fence posts from Asher, Okla., via Amarillo, Tex., to St. Vrain, N. M., complainant was assessed a rate of 52c; 18c, Asher to Amarillo, and 34c thence to destina- tion. Upon admission of defendants that the 34c rate was unreasonable, and that 16c would be a fair rate. HELD, 16c should be established in the future as the rate from Amarillo to St. Vrain, and rates on a basis corresponding with the 16c rate should be established by lines west of Amarillo to points west of St. Vrain, to and including Vaughan, N. M., from Amarillo to Ros- well, N. M., and intermediate points, and from Amarillo to Plain View, Tex., and intermediate points. Reparation awarded on basis of 16c. Snook & Janes v. A. T. & S. F. Ry. Co., 16 I. C. C. 356, 357. (t) Complainant, millmen located at points in Arkansas and northern Louisi- ana, west of the Mississippi River, at- tacked the rates on yellow pine lumber from that region to Cairo, 111., and St. Louis. In 1903 the rates were raised from 14c to 16c to Cairo, 111., destined beyond and from 16c to 18c to St. Louis and points basing thereon. Com- plainants attacked this advance. At the time of the advance blanket rates were put into effect in all the territory west of the Mississippi River south of Little Rock, Ark., extending to the Gulf of Mexico and including the yel- low pine districts of Texas and Okla- homa. The institution of the^e blanket rates resulted in the advanced rates attacked, but did not result in raised rates generally throughout the territory to which these blanket rates applied. In Tift and the Central Yellow Pine Association cases, 10 I. C. C. 548, 505, a raising of rates on lumber in terri- tory east of the Mississippi River was condemned and complainants contended that they should be accorded the same ruling with respect to territory west of the Mississippi. Transportation con- ditions in the territories east and west of the Mississippi River were very dif- REASONABLENESS OF RATES, §105 (u)— (x) 669 ferent. Some of the lines on the east side were among the older roads of the country and had ' the advantage of permanent construction, easier grades, better station, yard and siding facilities and more valuable terminals. The denseness of population and the volume of traffic were greater on the east than on the west side of the river. On the east side the roads had terminals at the ports on the Gulf, and handled the interior export and import trade on lumber, and their lines extended directly through the timber districts to Cairo and St. Louis. The roads on the west side operated long distances through low, swampy territory, subject to floods and frequent overflow and for considerable* distances over trestles, and also did not have the benefit of the export and import traflftc, receiving as compensation only the rate to Cairo or to St. Louis, whereas the east side roads received a portion of the charge for the haul beyond St. Louis and Cairo. Complainants did not attack the rates in question as unreasonable per se, but only as discriminating in favor of competitors east of the Mississippi River. It appeared the carriers had co-operated with the lumbermen and were important aids in opening up permanent markets for yellow pine from the region in question in compe- tition with woods from the North and Northwest.. During 1907 and 1908 there were larger percentages of increase in the movement of lumber from the west side of the river than from the east side. Complainants admitted the de- sirability of blanket rates and it ap- peared the blanket system could not be maintained if the rates in question were reduced. HELD, the complaint should be dismissed. Chicago Lumber ft Coal Co. V. T. S. Ry. Co., 16 I. C. C. 323, 331-334; Winn Parish Lumber Co. V. A. S. Ry. Co., 16 L C. C. 335. (u) On a carload of yellow pine lumber from Lake Charles, La., to El Paso, Tex., complainant was assessed 32i^c. The shipment moved from Lake Charles to Alexandria via the St. Louis, Watkins & Gulf R. R. and thence via the T. & P. R. R. to El Paso, a dis- tance of 1,067 miles. The distance via the Southern Pacific was 972 miles, and at the time the shipments moved a rate of 25c was in effect between the points in question over that line. Said S. P.'s tariff, however, provided that in connection with the St. L. W. & G. Ry., its rate should be 32i^c. About one year after shipment moved defend- ants St. L. W. & G. and T. & P. R. Rs. reduced their rate to 25c. No other evi- dence was submitted as to the reason- ableness per se of the rate exacted. HELD, the rate exacted was not shown to be unreasonable. Menefee Lumber Co. V. T. & P. Ry. Co., 15 L C. C. 49, 51. (v) On a carload of lumber from Fostoria, Tex., to Melrose, N. M., a rate of 41c was exacted, made up of the 33c rate from Fostoria to Texico and of the 8c rate from Texico to Melrose. Some four months after the shipment moved defendants voluntarily established a joint through rate of 33c. Complainant did not file its pe- tition until after said reduction was made. No other evidence of the un- reasonableness of said 41c rate was offered. HELD, said rate was not shown to be unreasonable. Foster Lumber Co. v. A. T. & S. F. Ry. Co., 15 L C. C. 56, 57. (w) On a carload of lumber from Omaha, Neb., to Canton, S. D., com- plainant was charged 20c per 100 lbs. At the time a rate was in effect from Council Bluffs to Canton of 9.03c plus $5 per car bridge charge. Subsequent to the shipment defendant named said rate and bridge charge to apply at Omaha. HELD, the rate exacted was unreason- able. Reparation awarded. Bowman- Kranz Lumber Co. v. C. M. & St. Ry. Co., 15 I. C. C. 277, 278. (x) Complainant was charged on a carload of lumber shipped from Boyd, Wis., to Palermo, N. D., 48^c per 100 lbs., based on the combination of locals, no through rate being in force between these points. He was also charged 28c per 100 lbs. on a shipment of immigrants' movables made at the same time and between the same points. The rate on lumber from Se- attle, Wash., eastbound to Palermo, a distance of 1,255 miles, was 48c per 100 lbs., the distance from Boyd to Palermo being 703 miles. Since the fil- ing of the petition another railway re- duced its local rate from Minnesota Transfer to Palermo, which reduction was made to meet competition. HELD, the charge of 48i/^c was not unreasonable. Reparation denied. William Patten V. Wisconsin Central Ry. Co., 14 I. C. C. 189, 190. 670 REASONABLENESS OP RATES, §105 (y) — (ee) (y) Complainant sought to recover reparation on shipments of cedar cross ties made between February 23 and March 12, 1906, from Wilcox and Ridge, Mich., to South Chicago, 111., upon which charges were assessed at 13c per 100 lbs. By mistake defendants had al- lowed to another shipper a rate of 10c per cross tie in carloads shipped from Wilcox to Chicago in March and April, 1905. For some time prior to Feb. 28, 1906, a rate of 10c per tie was allowed by defendants on shipments from Au Train, Underwood, White Fish, Rock River and Ellison, Mich., to Chicago, which rate was cai celed, effective March 14, 1906. After that date a uniform rate of 13c per 100 lbs. was applied from all stations east of Mar- quette. Another carrier, not involved in this proceeding, was charging 10c per tie on shipments from points about the same distance from Chicago as Wil- cox and Ridge, which rate, however, was forced by water competition. Prior to March 14, 1906, and thereafter, the rate on lumber from above mentioned towns, including Ridge and Wilcox, to Chicago was 12c per 100 lbs. HELD, the rate of 13c per 100 lbs. on cross ties from Ridge and Wilcox, Mich., to South Chicago, was unreasonable; that in the future it should not exceed the 12c charge for lumber, and complainant was entitled to reparation for the ex- cess with interest on shipments made between Feb. 23 and March 12, 1906. Forster Bros. Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. 232, 234, 235, 246. (z) A rate of 27i^c per 100 lbs., C. L., on yellow pine lumber was charged, Ashdown, Ark., Lake Charles, La., and Port Arthur, Tex., to Des Moines, la., as against a rate of 26c from these points over tne same route to Chicago. Other carriers not passing through Des Moines were in competition with defendants in shipments from these points to Chicago, all of which charged the rate of 26c. HELD, such facts did not of themselves show the 27i^c rate to Des Moines to be unreasonable. Greater Des Moines Committee, Inc., v. C. G. W. Ry. Co., 14 I. C C. 294, 295. (aa) The 26c rate on lumber from Jackson, Miss., to Chicago, 111., having been held in Central Yellow Pine Co. V. Illinois Central R. R. Co., 10 I. C. C. 505, to be excessive, to the extent of 2c, complainant, shipper of lumber between said points since that decision having been charged the 26c rate, is entitled to a reparation of 2c. Hayden ^ Westcott Lumber Co. v. G. & S. I. R. R. Co., 14 L C. C. 537, 537. (bb) A charge of 26c per 100 lbs. on a carload of lumber shipped from Jackson, Miss., to Chicago, 111., having been paid by complainant's consignee and debited against complainant, is ex- cessive under Hayden & Westcott Lum- ber Co. V. G. & S. I. R. R. Co., 14 I. C. C. 537, and complainant is entitled to reparation for the excess above 24c. Hayden & Westcott Lumber Co. v. G. & S. I. R. R. Co., 14 I. C. C. 539. (cc) A charge of 26c on a shipment of lumber from Jackson, Miss., to Chi- cago, 111., is excessive, and under Hay- den & Westcott Lumber Co. v. G. & S. L R. R. Co., 14 I. C. C. 537, complain- ant is entitled to recover the excess above 24c. Hayden & Westcott Lumber Co. V. G. & S. I. R. R. Co., 14 I. C. C. 540. (dd) On cross ties in carloads from points on the Nashville division of the Southern Ry. to Pawnee Junction and Paxton, 111., rates were charged of 37.9 and 35.58c per tie, respectively. Shortly after shipments moved defendants put into effect a rate of 19i^c on said movements. Defendant admitted that the rates charged were unreasonable and that 19i^c was a reasonable charge. HELD, the rates charged were unrea- sonable. Reparation awarded on the basis of 19i^c. Holcomb-Hayes Co. v. I. C. R. R. Co., 13 L C. C. 16, 19. (ee) For 15 years prior to 1903, de- fendants maintained a rate of 10c on hardwood lumber from Memphis to New Orleans. In 1903 they raised it to 12c and complainant attacked it. Defend- ants, owing to increased capacity of cars and engines, were able, since 1903, to haul from 20 to 25 per cent more in a car and a much greater tonnage per train than formerly. Practically all the hardwood lumber from Mem- phis shipped to New Orleans was for export. The same was delayed for a long period at New Orleans and no demurrage charge was exacted of ship- pers. Delay was caused by the failure of defendants to provide wharfage and dockage facilities at New Orleans. Lumber constituted the largest tonnage of all the commodities transported by de- fendants between the points in ques- tion; was less liable to damage; moved in any kind of car, and moved with REASONABLENESS OF RATES, §105 (ff) — (jj) 671 greater regularity throughout the year than any other commodity. Although operating expenses had increased in recent years the gross receipts and net revenues had correspondingly increased and the cost of handling a ton of freight had not increased. The rate on gum lumber was not raised at the time of the advance attacked and con- tinued to move under the 10c rate. While oak lumber weighed 30 per cent more than gum lumber, it yet paid a rate of 2c higher and produced a gross revenue per car under the rates at- tacked 70 per cent greater. Cotton was five times as valuable as oak and subject to damage by fire, yet, oak, under the rates attacked, earned 50 per cent more revenue per car. The same disparity in earnings existed with re- spect to molasses, sugar and cotton- seed meal and cake as compared with oak lumber. The 12c rate complained of yielded 6.07 mills per ton mile as compared with 5.7 mills, the average on all trafiic. HELD, following the decisions condemning the advanced rates on yellow pine from southern points to destinations beyond the Ohio River in Central Yellow Pine Ass'n v. I. C. R. R. Co., and Tift v. S. R. Co., 10 I. C. C. 505 and 548, the rate at- tacked was unreasonable and should not exceed 10c. Thompson Co. v. I. C. R. R. Co., 13 I. C. C. 657, 664. (ff) Complainants attacked the rate of 85c on hardwood lumber, consist- ing of fir and oak, from Chicago points and Mississippi River points, including Memphis, to the Pacific coast. For ten years prior to 1904, the rate had been 75c. Complainants contended the rate should not be higher than the 60c rate on soft wood lumber from the Pacific coast to Chicago. In actual practice west bound fir and oak was not loaded more heavily than east bound soft wood lumber, although it might have been so loaded had the minima regulations of defendants so required. The empty car movement was predom- inating eastward from San Francisco and Los Angeles and points south there- of, the principal markets for complain- ants' products. Complainants' hard wood lumber was worth more than the soft wood lumber eastward bound from the Pacific coast. Pacific coast lumber moving eastward came into competition with the products from southern forests which tended to reduce the eastbound rates on same. Complainants' lumber shipped to the Pacific coast came into competition with foreign products. The price at which it was " S0I4 was high and the nature of the use to which it was put was such that in many cases a slight difference in price did not determine the sale. A rate of 10c higher did, however, considerably in- fluence sales on the Pacific coast to the disadvantage of complainants. While the lower east bound rates on soft wood lumber from the Pacific coast were justified in part by the greater volume than west bound shipments of hard wood, this was offset somewhat by the fact that the hard wood ship- Tients could be moved at the con- venience of the carriers and single carloads might be retained at junction points until consolidated into trains. The 75c rate from the points in ques- tion to the Pacific coast in effect for ten years prior to 1904 were voluntarily established and maintained and were not the result of water competition. HELD, complainants' demand that the rate attacked be reduced to 60c was '^ot justified, but the rate should be lowered to 75c. Burgess v. Transcon- tinental Freight Bureau, 13 1. C. C. 668, 675, 678. (gg) Rates on mixed carloads of glazed sash, door and window screens, door and window frames, columns and gable ornaments, from Sioux City, la., to Lemmon, S. D., should not exceed rate in effect from St. Paul and Minneapolis, Minn., to Lemmon, S. D. Back v. C. M. & St. P. Ry. Co., Unrep. Op. 292. (hh) Rates on lumber from River Falls, Ala., to Waynetown, Ind:, should not exceed rates in effect to other points in Indiana. Greer-Houghton Lumber Co. V. L. & N. R. R. Co., Unrep. Op. 303. (ii) Rates on cordwood from Maiden Rock, Wis., to Minneapolis, Minn., found unreasonable and reparation awarded. Minneapolis Bedding Co. v. C. B. & Q. R. R. Co., Unrep.' Op. 329. (jj) Following Burgess v. Transconti- nental Freight Bureau, 13 I. C. C. 668, reparation awarded on account of un- reasonable rates charged for transpor- tation of various shipments of hardwood lumber from eastern points to Los Angeles, Cal. Western Hardwood Lum- ber Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 463. 672 REASONABLENESS OF RATES, §105 (kk)— §106 (d) (kk) Rates on cedar poles should not exceed the rates on lumber between the same points. Reparation awarded. Na- tional Pole Co. V. C. & N. W. Ry. Co., Unrep. Op. 465. (11) Rates on yellow pine box shooks should not exceed current rate on yellow pine lumber. Reparation awarded. Saw- yer & Austin Lumber Co. v. St. L. I. M. & S. Ry. Co., Unrep. Op. 478. (mm) Reparation awarded on ship- ments of hardwood lumber from Glidden, Wis., to San Francisco, Cal., following Burgess and Kindelon cases. Howard & Co. V. W. C. Ry. Co., Unrep. Op. 569. (nn) Rates on wooden bungs in bar- rels found unreasonable; lower rate established and reparation awarded. Koch Butchers Supply Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 572. (oo) Rate on hickory logs found un- reasonable. Lower rates established and reparation awarded. French Broad Mfg. Co. V. L. & N. R. R. Co., Unrep. Op. 586. §106. Malt. (a) Defendant's rates for transpor- tation of barley and malt in carloads from Minneapolis, Minn., to California terminals were 55c and 65c per 100 lbs., respectively. Malt is manufactured by allowing barley to germinate and then drying it in kilns. It is worth on the average 50 per cent more than barley. HELD, that carriers may make a rea- sonable differential between the rates on raw material and the -article manu- factured therefrom, but that the differ- ential between the rates on malt and barley should not exceed 7c per 100 lbs. Reparation denied. Electric Malt- ing Co. V. A. T. & S. F. Ry. Co., 23 I. C. C. 378. (b) Complainant, a brewery at Fort Worth, Tex., attacked defendant's rates on malt, C. L., from points in Illinois, Wisconsin and Minnesota to Fort Worth. The contention of the com- plainant was that although defendants and other carriers throughout the coun- try ordinarily applied to the movement Of malt, rates which were the same as the rates established for the movement of corn, barley and other grains, de- fendant's Class E rates, materially higher than the commodity rates men- tioned, were applied to the movement of malt to Texas common points. The Class E rates were 48c per 100 lbs. from Chicago and Milwaukee, and 53c from Minneapolis. The rates from Chi- cago to Forth Worth were 33c on wheat, and 38c on flour, 29i/^c on corn and 32%c on cornmeal, and 29%c on barley. Substantially the same adjustment ap- plied from Milwaukee and Minneapolis from which the barley rates were 30i/^c and 33c, respectively. Throughout sub- stantially the entire country the car- riers applied to the transportation of malt, rates which were the same as those for the transportation of barley, and defendants applied the barley rate on malt, up to the very door of Texas common point territory. HELD, this creates at least a strong impression, if not a presumption of fact, that the rates so generally applied by defend- ants to the transportation of malt and which must be assumed to be compen- satory, would afford fair remuneration for the carriage of that commodity to Texas common points. That the rates on malt to Fort Worth ought not to exceed 34i/^c from Chicago, 35i^c from Milwaukee and 38c from Minneapolis. FURTHER HELD, that although the rates mentioned will be reasonable for the future, substantial justice does not call for reparation and it is therefore denied. Texas Brewing Co. v. A. T. & S. F. Ry. Co., 21 1. C. C. 171. (c) In an attack by a brewery in Fort Worth upon the malt rate, C. L., from Illinois, Wisconsin and Minnesota to Fort Worth, Tex., it was contended by defendants that to grant the prayer of the petition would be to disrupt rates to a large expanse of territory, which should never be done upon the prayer of a single complainant ex- cept in a case of most manifest injus- tice. HELD, that it is obvious that the exaction of an unreasonable rate upon a considerable volume of traffic is a manifest injustice, and the com- plainant cannot be deprived of the rate to which it is entitled, because all the brewing interests in Texas have not joined in the petition. Texas Brewing Co. v. A. T. & S. F. Ry. Co., 21 I. C. C. 171, 175. (d) Defendant's rate on carloads of malt from Chilton, Wis., to Kansas City was 10c at the time complainant contracted to make shipments between those points. Shortly thereafter de- fendant raised the rate to 13 %c and a few months after complainant completed shipments at that higher rate restored REAS0NABLENP:SS of rates, §106 (e)— §111 (a) 673 the 10c rate. HELD, the rate exacted was unreasonable to the extent it ex- ceeded 10c. Reparation awarded. Chil- ton Malting Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 10, 11. (e) Reduction in rate on malt and in- crease in proportional rate on barley to equal local rate on malt do not of them- selves constitute grounds for reparation. Electric Malting Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 504. §107. Manila Paper Folders. (a) On manila paper filing folders In less than carloads from Chicago, 111., to Portland, Ore., a rate of $3 per 100 lbs. was charged. The tariff on manila tag board was $1:10 per 100 lbs.; on stationery, $3 per 100 lbs. There was no specific rate for manila paper filing folders. Uncertainty had existed as to what rate should be applied. HELD, the rate was discriminatory to the ex- tent that it exceeded $1.75 per 100 lbs. Upon proof of shipments, reparation will be ordered. Gill Co. v. O. R. R. & N. Co., 22 I. C. C. 442. (b) Rate on manila wrapping paper, flat in bundles, should not exceed the rate on manila wrapping paper folded. Robertson Paper Co. v. B. & M. R. R. Co., Unrep. Op. 206. §108. Masurite. (a) Masurite and kanite are propri- etary names for high explosive powders, composed essentially of nitrate of am- monia and some organic substance akin to oxidized oil, the exact composition of each being trade secrets. Whatever dif- ference there may be between these ex- plosives in other respects, there is none between them from a transportation standpoint, it being conceded that kanite is no more dangerous to carry than masurite. Blumenstein v. P. & R. Ry. Co., 21 I. C. C. 90, 92. (b) Masurite is exploded by means of a detonating cap imbedded in the material. It will not explode from con- cussion or burning, and practically the only danger in its transportation is from an explosion of dynamite carried on the same train. Dynamite, as an explosive, is preferable to masurite ex- cept for the element of safety in the handling of the latter. Masurite sells at gi^c per lb. f. o. b. factory and dynamite from 9 to 14c. HELD, that defendants' double first-class L. C. L. and first-class C. L. rate being the same as those applied to dynamite, were unreasonable and that second- class rates for carloads should be ap- plied. Masurite Explosive Co. v. Pitts- burg & Lake Erie R. R. Co., 13 I. C. C. 405, 408. §109. Merchandise. (a) Complainant paid for the trans- portation of general merchandise from certain eastern points to Yuma, Ariz., a rate in excess of the rate from those points to Los Angeles, Cal., plus the local rates from Los Angeles to Yuma. HELD, the rates charged complainant were unreasonable to the extent that they exceeded the rates from the sev- eral points of origin to Los Angeles, plus the rates from Los Angeles to Yuma. Reparation awarded. Sanguin- etti v. I. C. R. R. Co., 22 I. C. C. 185, 186. §110. Metal Furniture Knobs. (a) On less-than-carload shipments of metal furniture knobs or trimmings from Grand Haven, Mich., Rome, N. Y., and Waterbury, Conn., to San Fran- cisco, Cal., complainant was assessed $3 per 100 lbs. Shortly after ship- ments moved defendants established a commodity rate of $2. The $3 rate applied was the first-class rate on fur- niture and trimmings. Some of de- fendants admitted the unreasonable- ness of the charge exacted. Nothing was introduced in evidence to show that metal furniture knobs or trim- mings were not the same material as brass shelves and canopies for lighting fixtures which took a rate of $2. HELD, following Merle Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 471, the charge ex- acted was unreasonable. Reparation awarded on the basis of $2. Merle Co. v. N. Y. N. H. & H. R. R. Co., 17 I. C. C. 585, 586. §111. Milk and Cream. (a) Complainant attacked the New England or leased-car system as applied to transportation of milk to Boston, Mass. Defendant carrier had in effect (1) a per can rate based on distance under which the milk was carried in baggage cars and no icing furnished; (2) a rate for a milk car of $125 per mile per year from one to 75 miles, with an addition of $112.50 per mile beyond 75 miles and up to 125 miles, 674 REASONABLENESS OP RATES, §111 (a) and a further addition of $75 per mile for over 125 miles, the maximum load being 1,050 cans, with an additional charge for those in excess of that number; (3) carload rates for service in refrigerator cars upon its freight trains, the rate being 75 per cent of that for passenger service when in ordinary refrigeration cars, and 65 per cent in tank cars, with the right upon the part of the shipper to receive milk or creain at certain designated points. Under these rates there was no provision for the movement of milk by the can under ice furnished by de- fendant carrier, but the tariff permitted any shipper to transport cans on the leased cars by paying directly to the operator the rate of transportation and %c per car in addition for icing facili- ties. The leased cars were used by operators who purchased the milk of the farmers in a given section and as- sembled it into carloads for shipment. On account of the small output of the average . dairy, this assembling of the milk was necessary in order to secure the carload rate. As a single car would serve a given section, only one operator purchased in that section and gained a monopoly of the business, and the entire Boston milk supply was prac- tically controlled by two or three large concerns. The leased cars could be handled more economically and the rate was lower than the per can rate. The service under the latter rate was unavailable on account of lack of icing facilities. The leased-car system was defended on the following grounds: (1) Benefits derived from the caretaker provided by the operator. This care- taker came into daily contact with the farmers and received suggestions as to the improvement of the service. He saw that the milk was properly marked, thereby preventing friction between the farmer and the contractor or operator. He rejected unfit milk, and saw that the milk was loaded in such a way as to insure the most convenient removal of cans from the car. (2) Heavier loading obtained under the leased-car system. The cost of icing and operat- ing of a car being the same, whether it contained 100 or 1,000 cans, the han- dling of milk by the operators in full carloads made for economy. (3) The terminal situation. The large operators had provided in Boston facilities for re- ceiving and handling the milk. The cars were hauled directly to the plants of the operators, whereas, if each dealer received his milk at the passenger sta- tion, a wagon haul of several miles would be involved, increasing the ex- pense of exposing the milk to improper temperatures. (4) The disposition of surplus milk. Since the consumption of milk at Boston varied from day to day it was necessary to provide for the disposition of the surplus. This was done advantageously by maintain- ing a creamery along the way and intercepting large portions on its way to market at some country point, where it was manufactured into butter or condensed milk. (5) The leased sys- tem had been in effect for some fifteen years and the operators had expended large sums in extensive facilities. (6) The regulations adopted by the state of Massachusetts and the city of Boston were such as would virtually prohibit the handling of milk in small quanti- ties on account of the strict require- ments as to cleanliness, temperature, delivery in sealed packages, etc. The tendency of the leased-car system was toward monopoly and under it there was probably no competition except in the quality of milk supplied. The evi- dence indicated that to destroy uio system and to establish an exclusive per can rate would increase the cost to the consumer some 20 per cent and would result in poorer sanitary con- ditions. Under the system attacked the price paid the farmer for the milk had been distinctly higher than that paid to the farmer for supplying any other city. The price charged the consumer in Boston had been about the average of that charged in other cities. In quality the Boston supply equaled or exceeded that of any great city. The evidence indicated that even if a per can system was established so as to enable the farmer to ship directly to independent dealers in Boston, the monopolistic tendency would not there- by be checked. HELD, that the ship- Mcr was entitled to a per can rate with icing facilities, but that the defendant should not be required to furnish cars with such facilities unless it was rea- sonably assured of shipments of at •east 600 cans of milk; that the per can rate might be higher than the leased-car rate but must not be un- reasonably so; and that the leased-car system was not unlawful in itself ex- cept in so far as the carrier failed to furnish a per can rate with icing REASONABLENESS OP RATES, §111 (b)— (d) 675 facilities, with the result that the ship- per was compelled to pay the transpor- tation charge to the operator instead of to the carrier and to disclose the secrets of his business to the operator by the shipment of his cans in the leased cars. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 327. (b) Complainants, who operated creameries, conducting their business in Minneapolis and St. Paul, drew their supplies of cream from Minnesota and neighboring states, and attempted to have established the scale of rates applicable to the transportation of cream in cans by the defendants as established by the Commission in Beatrice Cream- ery Co. V. I. C. R. R. Co., 15 I. C. C. 109. Some years before the complaint the railroad commission of Minnesota established a scale of rates of which the rates of the defendant were almost a reproduction. These rates were put into effect to foster the local creameries at the expense of the centralizer. The state of Minnesota on application re- fused to revise its rates holding that the local creameries should be assisted. North Dakota objected to the putting in of the Beatrice rates- for the same rea- son. HELD, that it would be the incli- nation of the Commission to leave the rates as they are if it could properly do so, because there ought always to be harmony between state and inter- state rates, but that the complainants are engaged in interstate commerce and the very purpose of the Commission is to see that persons requiring inter- state transportation shall be afforded just and reasonable charges for their service, and the Commission has no right to respect any policy of the state of Minnesota nor North Dakota which interferes with the application of a just and reasonable charge for an inter- state transportation service, and the rates were unreasonable for a distance of 510 miles from St. Paul to practically the extent which they exceeded the rates prescribed in the Beatrice case. Cobb V. N. P. Ry. Co., 20 1. C. C. 100, 103. (c) Defendants' rates from Poultney and West Pawlett, Vt., to Eagle Bridge, N. Y., on milk destined thence to Boston was $16 per car of 250 cans or less and for the excess over 250 cans, 6^c per can. The less-than-car- load rate was 16c per can of 40 quarts. The distances from Poultney and from West Pawlett, respectively, to Eagle Bridge were 45 miles and 33 miles. The rate charged for the haul between said points was in the nature of a proportional of the longer haul to Boston, the milk being unloaded and inspected in transit at Eagle Bridge. HELD, the $16 per car rate and the 6^/^c per can rate for the excess over 250 cans in the same car were reasonable; but that the less-than-carload rate of 16c was excessive and should be re- duced to 10c. Hood & Sons v. Dela- ware & Hudson Co., 17 L C. C. 15, 20. (d) Local creameries are those to which the milk and cream are brought by wagon. Centralizers receive their supply of cream by railroad. Complain- ant centralizers attacked the rates on cream throughout the country, espe- cially in the territory within a radius of some 500 miles from Chicago and within a similar distance from St. Joseph, Mo., and Sioux City, la. For many years prior to 1907 defendants maintained a rate of 33c, known as the 33c scale, on a 10-gallon can of cream for a distance of 300 miles in terri- tory west of the Missouri River in hauls to points on said river. Prior to 1906 a rate of 60c, or 60c scale, was charged on a 10-gallon can of cream for a dis- tance of 300 miles in shipments to Chicago. Complainants invested large sums in establishing creameries at Chi- cago in reliance upon a 38c scale prom- ised by some of defendants. In 1907 the 38c rate was withdrawn and the 60c rate to Chicago restored. Shortly thereafter all the carriers transporting cream by rail to Chicago on the east and the Rocky Mountains on the west agreed to establish in all the territory in question a 70c scale. Complainants attacked the new scale and demanded the restoration of the 33c scale and its application in all the territory under consideration. Local creameries cafl operate successfully only where they are able to produce an annual output of at least 100,000 lbs. of butter. It is impracticable for them to gather cream from the farmers living over 6 or 7 miles from their plants. The central- izers gather supplies over a radius of ■ from 60 to 600 miles. Where the cow population is sparse, the local cream- eries cannot exist. This is the condi- tion in the states of Kansas and Ne- braska, in much of Missouri, and con- siderable of the territory of Iowa, and 676 REASONABLENESS OP RATES, §112 (a) in a part of Minnesota and South Da- kota. It is impracticable for farmers in these states to make and sell butter after the old-fashioned methods and but for the existence of centralizers the dairy interests in these sections would be destroyed. Where the cow popu- lation is sufficiently dense, the local creameries can prosper in competition with the centralizers and produce a somewhat better grade of butter and are entitled to protection from the standpoint of the consuming public. Transportation charges on the cream to the centralizers plus those on the but- ter to the points of consumption are larger than those on the cream and butter used and manufactured by the local creameries. This advantage in favor of local creameries is, however, offset by the cheaper cost of manufac ture to the centralizer. The profit on butter made by the centralizer was Bald to be only i^c per lb. The in- crease in rates attacked was greater than this profit. It appeared, however, that the farmers were receiving from 20c to 28c per lb. for butter fat and that the increase would be borne by the farmers and not by the centralizers. The 33c scale in effect prior to 1907 west of the Missouri River was estab- lished by the carriers after repeated crop failures and for the purpose of developing dairy interests in order to prevent the people from leaving the country. The cream is carried by local passenger trains and in baggage cars. As a rule no special cream cars are employed. The shipper places the can of cream upon the station platform, from which it is loaded into the car by the carrier. The carrier at the place of delivery unloads the cans and places them upon the platform. It returns the empty cans without extra charge. While in the past the carrying of cream has been in the nature of sur- plus transportation, requiring no addi- tional employes or equipment, the busi- ness has so developed as to make prob- able the requirement of special equip- ment in the future. Under the 33c rate applying west of the Missouri River the Burlington earned about 14c per car mile as compared with about 19c per car mile paid to it under its mail contracts with the Federal Gov- ernment. Express rates are materially higher than the rates under the 70c scale attacked. Freight rates are lower for shorter distances and somewhat higher for long distances than the 33c scale. They are lower for all distances than the 70c scale. The service for which these freight rates are charged, however, is much less expensive than the transportation of cream. HELD, that rates must not be established so low as to give the centralizers an un- natural advantage over the local cream- eries in territory suited to the latter; that the 70c scale was unreasonable; that a rate of 20c per 10-gallon can for all distances up to and including 25 miles should be established; that be- yond 25 miles the rates should increase Ic for every 5 miles, up to and includ- ■ng 50 miles; that for the next 50 miles it should increase Ic for every 10 miles, and Ic for every 15 miles thereafter; that on account of the greater labor and smaller economy in handling the 5 and 8 gallon cans, the rates for 5 and 8 gallon cans should be approximately 7-10 and 9-10, re- spectively, of the rates for 10-gallon cans. Beatrice Creamery Co. v. I. C. R. R. Co., 15 I. C. C. 109, 124, 132. §112. Mine-Prop Logs. (a) Rates charged for the trans- portation of mine-prop logs from points in North Carolina to Norfolk, Va., of '-^c and 31/^c per 100 lbs. were attacked to the extent they exceeded the rates on saw logs between the same points of $2.50 per 1,000 board feet, minimum carload 3,500 feet. The logs intended for mine props are similar to those intended for conversion into lumber except that they are longer, but the loading and unloading are done by the shippers in both cases. Logs intended for mine props are handled on single cars that must be switched out of a train at the loading point, switched into another train when loaded and switched to the track of a connecting carrier at destination, and are moved on logging cars, while sawmill logs generally move in solid trains, the only service of the carrier in addition to the road haul being the coupling and uncoupling of the engine at the two ends of the run. HELD, the fact that certain trafllc is hauled in trainload lots while complainant's traffic moves in carloads cannot be made the basis of a difference in rates. The char- acter of the equipment used is in the discretion and for the convenience of the carrier, and the conditions surround- REASONABLENESS OF RATES, §113 (a)— §116 (a) 677 ing the transportation of mine props are not so dissimilar as to justify a higher charge thereon. Defendant's rates for the transportation of sav logs in this territory having proven to be reasonable and compensatory, it is ordered to maintain the same rate on mine props as is contemporaneously applied on saw logs. Reparation award- ed. Rickards v. A. C. L. R. R. Co., 23 I. C. C. 239. §113. Mohair. (a) Mohair is prepared for shipment like wool in both sacks and bales. It loads somewhat heavier than wool. The physical incidents of its trans- portation are almost exactly the same as with wool. Its value is somewhat greater than that of wool in the grease, in those regions where mohair is produced, although the lower grades of mohair do not sell for as much as the higher grades of wool. HELD, there is no reason why mohair should be re- quired to pay a higher rate of trans- portation than wool. The rates pre- scribed in the Wool case, 23 I. C. C. 151, for the transportation of wool from western territory to eastern destinations should not be exceeded for the trans- portation of mohair, which should be classified as second class in less than carloads, and as fourth class in car- loads, with a minimum of 24,000 lbs. for a standard 36-foot car and an in- crease for larger cars. National I\Io- hair Growers' Ass'n v. A. T. & S. F. Ry. Co., 23 I. C. C. 180, 181. §114. Motorcycles. (a) Complainants attacked the less- than-carload rate of $6 per 100 lbs. on motorcycles, crated, from Springfield, Mass., Hammondsport and Angola, N. Y., Reading, Pa., Geneseo, Chicago and Aurora, 111., Milwaukee, Wis., Minnea]> oils, Minn., and San Francisco and other Pacific coast terminals. Motorcy- cles crated weigh from 225 to 250 lbs. and bicycles 40 to 50 lbs. Motorcycles occupy a space 7 feet long, 3 feet high, 9 inches wide; bicycles, a space 6 feet long, 3 feet high, and 7 inches wide. INTotorcycles varv in price from $150 to $225; bicycles from $30 to $50. The profit on motorcycles ranges from $10 to $50; that on bicycles from $5 to $10. Formerly the movement of bi- cycles was in excess of that of motor- cycles, but recently the movement of motorcycles has equaled or exceeded that of bicycles. The less-than-carload rate on bicycles, crated, was $4.50; completely boxed, $3.60. Subsequent to the shipment in question the car- load rate on motorcycles was made $4; that on bicycles was at the time of the shipment and at the time of the hearing $2.50. The contention of de- fendants that the rates on motorcycles and bicycles were both induced by water competition was not sustained by evidence. HELD, while it was not necessary that there should be an un- varying relation between rates on mo- torcycles and bicycles packed in the same manner, under the evidence pre- sented the rate attacked was unreason- able to the extent it exceeded one and one-half times the first-class rate on motorcycles, less-than-carload, boxed or crated, between the points in question. Reparation denied. Rose v. Boston & Albany R. R. Co., 18 I. C. C. 427, 429. (b) Commission held motorcycle rates should not exceed first-class rate on car- loads and one and a half times the first class on less than carloads. Carrier put in effect commodity rates equal to such reduction, and subsequently Commission reduced class rates. Reparation awarded on basis of subsequent reduction. Mead Auto Cycle Co. v. W. R. R. Co., Unrep. Op. 435; Whiting v. C. B. & Q. R. R. Co., Unrep. Op. 436. §115. Mussel Shells. (a) Complainant was assessed a rate of 17c on carloads of mussel shells rrom Terre Haute, Ind., to Davenport. la., such rate being the sixth-class rate law- fully applicable. Shortly after the ship- ment defendants established a joint through commodity rate of 15c and ad- mitted the 17c rate to be unreasonable. HELD, the rate assessed was excess- ive. Reparation awarded. Davenport Pearl Button Co. v. C. B. & Q. R. R. Co., 17 L C. C. 193, 194. §116. Newspaper. (a) On carloads of newspaper shipped in the summer of 1907 from Grand Mere, Quebec, to San Francisco, Cal., complainant was assessed 90c, the rate applicable by the route of move- ment. The shipments, with one excep- tion, were routed by the shipper via the C. P. Ry., Wabash R. R., C. B. & Q. R. R. and lines beyond. One car- load was routed via C. P. Ry., Wabasb 678 REASONABLENESS OF RATES, §117 (a)— §118 (a) R. R., C & N. W. Ry. and lines beyond. At the time of movement a rate of 75c was in effect from Grand Mere to San Francisco, through Chicago. The Wa- bash R. R. carried the shipments from Detroit via its East Hannibal gateway and delivered the same to the C. B. & Q. R. R. at Kansas City, except one carload, which was delivered to the M. P. Ry. at Kansas City. Effective Jan. 28, 1908, a 75c rate was made ap- plicable via all routes. Such rate was canceled Jan. 1, 1909, but re-established June 5, 1909. Had the Wabash R. R. routed the same by the Chicago gate- way, the rate would have been 75c. HELD, the charges assessed were un- reasonable. Reparation awarded on the basis of 75c, declared to be a reason- able rate for the future. Williar v C. N. Q. Ry. Co., 17 L C. C. 304. §117. on. (a) On carloads of fuel oil from Sapulpa, Okla., to Acme, Tex., rates of 19c and 22i^c per 100 lbs., prior to July 26, 1909, were charged, at which time they were reduced to 15c. Com- plainant sought reparation, on the basis that the rates charged on shipments were unreasonable to the extent that they exceeded 15c. The record indi- cated that the establishment of the 15c rate resulted from competition condi- tions due to the oil fields in Texas. HELD, that complainant be granted rep- aration for the charges over 15c, and that the present rate be continued. Acme Cement Plaster Co. v. St. L. & S. F. R. R. Co., 22 I. C. C. 283. (b) On crude petroleum oil shipped from Sapulpa, Okla., to Humboldt, Kan., in carload lots, complainant was charged a rate of 36c per 100 lbs., the routing being "Frisco & M. K. & T., Vinita." The rate from Sapulpa to Kansas City through Vinita was only 13c. Within two months after the shipment the rate was reduced to 16c. HELD, the rat«i of 36c was unreasonable to the extent that it exceeded the present interme- diate rate of IGc. Reparation awarded. Humboldt Refining Co. v. M. K. & T. Ry. Co., 22 I. C. C. 363. (c) On carloads of petroleum oil from Stanards, N. Y., to Struthers, Pa., a rate of 10c was collected, the dis- tance being 180 miles. At the time of shipments a rate of 8*/^c was in effect from Stanards to Warren, Pa., and to other points in Pennsylvania and Ohio distant from Stanards from 119 to 247 miles. Warren is li^ miles from Struthers. The shipments moved via Keating Summit, Pa., while the 8^c rate to Warren was applicable via Buf- falo and Wellsville, N. Y. Shortly after shipments moved the 8^c rate was made applicable from Stanards to Struthers via Keating Summit, and at the time of the hearing had been vol- untarily maintained for more than four months. HELD, that testing the rate attacked by the rate on the same or adjacent lines in the immediate terri- tory, under the same conditions, the rate complained of was unreasonable to the extent that it exceeded 8i/4c. Clark Co. V. Buffalo & Susquehanna Ry. Co., 18 I. C. C. 380, 381. (d) On carloads of redistilled press oil from Edgewater, N. J., to Struthers, Pa., a local rate of 4c, Edgewater to Bergen Junction, and a joint rate of 18c therce to destination was exacted, no through rate being in effect. The Struthers to Edgewater rate was 16i^c. There was no regular movement of oil from coast points to the West, the movement in question being accidental on account of fire. Some two years after the movement defendants volun- tarily established the 16i^c rate from Edgewater to Struthers. HELD, the rate charged was not shown to be ex- cessive. The fact that the eastbound rate was lower than the westbound did not prove the latter to be unreasonable. Wilburine O'l Worlds, T>td., v. Penn. R. R. Co., 18 I. C. C. 548, 549. (e) Since the Commission in Mar- shall Oil Co. V. C. «fe N. W. Ry. Co.. 14 L C. C. 210, refusing to apply fourth- class rates on oil in less than carloads, it appeared that almost all the lines on shipments from Minneapolis and St. Paul to stations in South Dakota vol- untarily applied the fourth-class rates, such rates being apparently compensa- tory. HELD, the third-class rates on illuminating oils and gasoline were unreasonable and the fourth-class rates should be applied. Parties Oil Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 146, 148. §118. Packing-House Products, Meats. (a) The rate on fresh meats and packing-house products from Wichita, Kan., to southeastern territory oughf REASONABLENESS OF RATES. §118 (b) 679 not to be advanced unless that from Kansas City is also increased by a corresponding amount. In Re Investi- gation of Unreasonable Rates on Meats, 23 I. C. C. 656, 666. (b) The rates involved in this pro- ceeding were those, both relative and ab- solute, upon live stock into, out of, and through Ft. Worth, Tex., Oklahoma City, Okla., and Wichita, Kan., as compared with rates to Kansas City and to other packing houses upon the Missouri River and east; those on fresh meats and packing-house products from Ft. Worth, Oklahoma City and Wichita to all points of consumption, and the rate on salt from the Kansas field to Oklahoma City. The raw material for the rival slaughtering houses in these three cities was drawn to a large extent from the same section in the Southwest, and where the rate upon the live animal to the point of slaughter, added to the rate upon the product to the consuming market, was less in case of one city than another, the one en- joying the more favorable rate had an advantage. Ft Worth drew the bulk of its beef cattle from Texas upon rates fixed by the Texas commission. Okla- homa City and Wichita drew their sup- plies largely from the same source in the Southwest as Kansas City. It was gen- erally agreed that rates from the more distant points to Oklahoma City and Wichita should be made less than cor- responding rates to Kansas City, by a fixed arbitrary. Live stock originating in the eastern part of Texas reached Kansas City largely through Ft. Worth or through some junction east of Ft. Worth. With respect to all such traffic, Okla- homa City and Wichita both involved an out-of-line haul, the distance from Ft. Worth to Kansas City, via Wichita, be- ing nearly one-fifth greater than that by the short line. With respect to western Texas, the completion of the Orient sys- tem would make the short route, with re- spect to all points upon it and many points west of it, to Kansas City, through Wichita. In case of considerable live- stock territory, the short line to St. Louis was through Oklahoma City. HELD, the rates attacked from the live-stock pro- ducing territory in New Mexico, Texas and Cklahoma to Wichita, Oklahoma City and Ft. Worth were unreasonable, and new rates should be established on a mileage basis; that with respect to joint rates to these markets, the rate for live stock for a two-line haul might properly exceed, that prescribed for a one-line haul by 21/^c. New rates prescribed as speci- fied by table in the opinion, LOCAL RATES FOR THE HOME MARKET. It was generally agreed that local rates on tresh meats and packing-house products from the slaughtering pof^ts in question should be established on a mileage scale. On account of the moving of live stock In very large quantities, rates upon live stock to these slaughtering points had been maintained at a somewhat lower level than the rates obtaining in other sections of the country where the move- ment of live stock was much less, and the general density of traffic much greater. Upon the other hand, the tend- ency had been to maintain somewhat higher relative rates upon fresh meat and packing-house products in this section than in other portions of the country where traffic was heavier and the general level of rates lower. HELD, the local rates attacked were unreasonable, and a mileage scale should be applied as to such rates for the home market between all points in New Mexico, Texas, Okla- homa, Arkansas, Missouri south of the Missouri River, and Louisiana west of the Mississippi River, but that on ac- count of the danger of throwing the slaughtering points in question out of line with other competing localities, no attempt would be made to readjust the relation between the rates upon live ani- mals and those upon the products. PRO- PORTIONAL RATES TO DISTANT MARKETS FROM FT. WORTH, WICHI- TA AND OKLAHOMA CITY. The rates involved were to (1) the Southeast, em- bracing Alabama, Georgia and Florida; (2) Carolina territory, including the two Carolinas and the southern portion of Virginia; (3) trunk line territory north of the Potomac and Ohio rivers and east of the Indiana-Illinois state line, includ- ing the Virginia cities; (4) territory be- tween the Illinois-Indiana state line and the Mississippi River, designated as Illi- nois territory. The rates to the first three territories were constructed upon St. Louis and the lower Mississippi cross- ings by adding a proportional rate from the packing house to the Mississippi River and another rate from the Missis- sippi River to destination. The rate from the Mississippi River crossing to a given destination was the same, irrespective of the point at which the traffic origi- nated, so that the only charges involved were the proportional rates from the 680 REASONABLENESS OF RATES, §118 (b) packing house to the Mississippi River crossings. It was generally agreed that the differences in distances up to the Mississippi River should be considered as fairly indicating proper differences in the rates to be established. The dis- tances from Wichita, Oklahoma City and Ft. Worth to St. Louis and Memphis were, from Wichita, 479 miles and 543 miles, respectively; from Oklahoma City, 543 and 486 miles, respectively, and from Ft. Worth, 720 and 539 miles, respectively. The distance from Ft. Worth to Vicks- burg was 393 miles. From Ft. Worth business was handled for the Southeast and for Carolina territory through Mem- phis, Vicksburg and New Orleans, and the rate appeared to be based sometimes upon one crossing and sometimes upon another. From Oklahoma City, traffic moved mainly through Memphis to both Carolina territory and the Southeast. From Wichita, Carolina territory was also reached through Memphis. While busi- ness to trunk line territory was worked by southern lines through Memphis, and perhaps through Vicksburg, the rate made in all cases was made through St. Louis. The distance from Ft. Worth and from Oklahoma City to Carolina terri- tory was substantially the same, and it was agreed that rates from both these points should be identical. With respect to Southeast territory. Ft. Worth had an advantage over Oklahoma City in dis- tance to the extent that its mileage to Vicksburg was less than from Oklahoma City to Memphis. The rates attacked from Wichita to both Carolina territory and the Southeast were l^/^c higher the those from Oklahoma City. While the short-line distance from Ft. Worth was through Vicksburg and that from Okla- homa City through Memphis, the tariffs attacked indicated that lines leading from these two points of production de- sired to handle business through those gateways, and also through New Orleans, with the result that the long line would simply be meeting the short-line rate. The rates attacked upon both fresh meat and packing-house products from Wichita to St. Louis were 24i^c. From Oklahoma City to St. Louis the proportional rates were, upon packing-house products 28 %c, upon dressed meat 31i/^c, equivalent to a differential above Wichita of iMc upon packing-house products and 7c upon fresh meat. Rates from Ft. Worth to St. Louis were 32?4c on packing-house products and ZS^c upon fresh meat, a differential of 4c upon both packing-house products and fresh meat in favor of Oklahoma City. While, therefore, the distance from Oklahoma City to St. Louis was but 64 miles greater than from Wichita to St. Louis, its rate increased by 414c and 7c, while for an increase in distance amounting to 177 miles from Ft. Worth to St. Louis, as compared with Oklahoma City to St. Louis, the rate increased but 4c in case of both fresh meats and pack- ing-house products. Wichita contended that, while 24i/^c might be a reasonable local rate to St. Louis, it was excessive as a proportional rate applied to busi- ness for beyond. The mileage scale adopted in the opinion would justify a rate of 44c upon packing-house products and 53c upon fresh meats, and, excluding competitive conditions, nothing war- ranted the imposing of as low a rate as 24i^c from Wichita to St. Louis. With respect to the rate to Illinois territory, including the rate to Kansas City, it ap- peared that the rate attacked from Okla- homa City to St. Louis and Chicago upon fresh meat and packing-house products was 53c; from Ft. Worth, 57c; from Wichita to Chicago, 29i/^c. Oklahoma interests insisted that this adjustment constituted a gross discrimination against Oklahoma City. The Chicago rate from Wichita was constructed by adding 5c to the St. Louis rate, and this was done to allow lines leading from Kansas City through St. Louis to Chicago to com- pete for the business. The short-line distance from Oklahoma City to Chicago is 791 miles, and from Ft. Worth, 945 miles. Under the mileage scale adopted in the opinion, the rates from Oklahoma City would be 62c upon packing-house products and 74c upon fresh meat. The live-stock rate attacked from Oklahoma City to Chicago was 44 %c, and from Ft. Worth, 49 %c. The rate attacked from Wichita to Kansas City was I2c upon packing-house products, and 16i/^c upon fresh meat; that from Oklahoma Citv to Kansas City was 53c upon both fresh meat and packing-house products, and from Ft. Worth, 60c. The distances from Wichita, Oklahoma City and Ft. Worth to Kansas City are 208, 243 and 508 miles, respectively. HELD, adopting the mileage scale, Fort Worth was en- titled to a proportional rate upon busi- ness for the Southeast 3c lower upon both packing-house products and fresh meats than the rate in effect from Okla- homa City; that for a like reason the REASONABLENESS OF RATES, §118.(c)— (e) 681 rates from Wichita to both Carolina terri- tory and the Southeast, which under the adjustment attacked were l^^c higher than those from Oklahoma City, should be made 2i^c higher on both packing- house products and fresh meat; that pro- portional rates from Oklahoma City, when for the Southeast, should be 3c higher through the gateways of Vicks- burg, Memphis and New Orleans than corresponding rates from Ft. Worth; that the rate to St. Louis for beyond should be 3c higher from Oklahoma City than from Wichita upon packing-house prod- ucts and 4c upon fresh meats, and the rate upon packing-house products from Ft. Worth should exceed that from Okla- homa City by 5i/4c, and upon fresh meats by 7c; that the rate of 24i^c from Wichita to St. Louis for beyond was not excess- ive; that, while a rate of 53c upon both packing-house products and fresh meat from Oklahoma City to St. Louis and Chicago was not excessive in itself, it was unduly discriminatory, as compared with the 29i^c rate in effect from Wichita; that the rate from Wichita to Kansas City of 12c upon packing-house products and l"6i/^c upon fresh meats, the rate from Oklahoma City to Kansas City of 53c, and the rate from Ft. Worth to Kansas City of 60c resulted in undue discrimination in favor of Wichita, and the rate from Oklahoma City ought not to exceed by more than 40 per cent that from Wichita, and the rate from Ft. Worth ought not to exceed that from Wichita by more than 75 per cent; that the rates to Illinois territory should be constructed by adding to the trunk line proportional to St. Louis the local rate from St. Louis to destination; that the rates from Oklahoma City and Ft. Worth to St. Paul, Omaha and Duluth, as com- pared with similar rates from Wichita, unduly discriminated in favor of Wichita and should be readjusted so as to bring them in accord with the rates prescribed for Kansas City and Chicago, and that whatever transit privileges were ac- corded to one of the slaughtering points In question should be extended to the others, where the circumstances and con- ditions were the same. RATES ON SALT FROM THE KANSAS FIELDS TO OKLAHOMA CITY. The average dis- tance involved was 200 miles; the rate attacked, 15c in carloads. The same carriers leading from the Kansas field to the Missouri River established rates of 10c on salt for distances of from 200 to 275 miles, but these latter rates were made to meet the competition of salt produced in the Michigan field. HELD, the 15c rate attacked was unreasonable, and a rate not exceeding 12c, carload minimum 40,000 lbs., should be estab- lished on bulk salt from the Kansas field to Oklahoma City. In Re Unreasonable Rates on Meats, 22 I. C. C. 160, 165, 166, 168-174, 175. (c) On packing-house products and fresh meats in carloads from Houston, Tex., to Lake Charles, La., a charge of 32c and 35c, respectively, was exacted. On the same products from Ft. Worth, Tex., to Lake Charles, a distance of 405 miles, as compared with 144 miles from Houston to Lake Charles, rates of 42c and 40c, respectively, were charged. HELD, upon the basis of a former consid- eration of the rates upon the commodi- ties in question, In the same general territory. In 22 I. C. C. 160, the defend- ants' rates from Houston to St. Charles were unreasonable, so far as they ex- ceeded 20c on packing-house products, and 25c on fresh meats In carloads. Houston Packing Co. v. T. & N. O. R. R. Co., 22 I. C. C. 456. (d) On packing-house products and fresh meats from Houston, Tex., to New Orleans, La., charges of 36c and 40c in carloads for the respective ccmmoditle* were exacted. On the same products from Ft. Worth, Tex., to New Orleans, a distance of 547 miles, as compared with 359 miles from Houston to New Orleans, charges of 40c and 48c were made. HELD, that defendants' rates from Hous- ton to New Orleans were not unreason- able. Houston Packing Co. v. T. & N. O. R. R. Co., 22 I. C. C. 456. (e) Complainant attacked the rate of 601/^c per 100 lbs. for the transportation of fresh meat and poultry C. L. from Jer- sey City, N. J., to Jacksonville. Fla. The fourth-class rate of 51 ^^c applied on this traffic for a number of years prior to 1909, when the commodity rate was estab- lished. The * all-water rate by the Clyd.3 Line was 33c, and the water movement was entirely feasible. The Seaboard Air Line carried nearly all shipments of fresh meats and fresh poultry moving to Jack- sonville by rail. Yet there was no move- ment via that line until 1906. and the total movement for the years 1906, 1907 and 1908 amounted to but 86 cars. The advance in the rate did not check the movement, as was shown by the fact that 682 REASONABLENESS OF RATES, §118 (f)— §121 (a) the Seaboard Air Line carried in 1909, 46 cars, and in 1910, 56 cars. The reve- nue per ton mile upon the entire move- ment from Jersey City to Jacksonville was 12.3 mills. HELD, the fact that the rail carriers were able to participate in this business in competition with the Clyde Line to even an inconsiderable extent tends to prove that the rail rate is rea- sonable. From the entire record, the rates found not unreasonable. Complaint dismissed. Florida Mercantile Agency v. P. R. R. Co., 21 L C. C. 85. (f) Defendant's tariff fixed a 15,000- pound carload minimum on dairy prod- ucts, poultry, fresh meats, etc., for which the carrier would, at its own expense, furnish icing. Complainant contended such a minimum should not exceed 10,- 000 lbs. At the time shipment moved from East St. Louis destined to points east of the Indiana-Illinois line, other car- riers leading east from East St. Louis had in effect a 10,000-pound minimum. About one year after the movement of one of the shipments in question, and simultaneously with the movement of the other, defendant entered into a joint tariff with other carriers establishing the 10,000-pound minimum. Complainant offered no testimony to show the 15,000- pound minimum unreasonable, and de- fendant made no admission to that effect. Complainant's case rested entirely upon the facts that the shipment were made, and that other carriers, competing for the same business during the same pe- riod, furnished icing for such shipments on a minimum carload weight of 10,000 lbs. HELD, under the evidence sub- mitted, the minimum attacked could not b« found to be unreasonable. Reparation denied. Swift & Co. v. C. & A. R. R. Co., 1-6 I. C. C 426, 429. (g) On shiphients of carloads of fresh meat and packing-house products from Ft. Worth, Tex., to Rocky Mount, N. C, via Shreveport, Vicksburg, Meridian, Birmingham and Selma, complainant was assessed $1.07 on the fresh -meat and 66c on the packing-house products. At the time shipment moved, the combination rates of 77c on fresh meat and 58c on packing-house products were available via Memphis, and these lower rates were subsequently applied to the route over which shipment moved. HELD, com- plainant was entitled to reparation on the basis of such lower rates. Swift & Co. v. T. & P. Ry. Co., 16 L C. C. 4:2, 443. (h) Allegation that dressed poultry should take lower rating than live poul- try not sustained by the facts. Rose- brough V. P. Exp. Co., Unrep. Op. 438. §119. Paper Stock. (a) Defendants' rate on paper stock from Chicago to South Bend, Ind., a dis- tance of 86 miles, was 8c per 100 lbs. on a carload minimum of 20.000 lbs. On manufactured paper from South Bend to Chicago the rate was 6c on a carload minimum of 24,000 lbs. But this rate was established to meet competition of manufactured paper shipped by water from St. Joseph, Mich., to Chicago. The rate on paper stock from Chicago to Be- loit. Wis., a distance of 91 miles, was 5c on a carload minimum of 3^,000 lbs. HELD, under this evidence the 8c rate from Chicago to South Bend could not be held unreasonable. La Salle Paper Co. V. Michigan Central R. R. Co., 16 L C. C. 149, 150. (b) News printing paper and blank wall paper are not competitive articles, and the existence of a lower rate on the former commodity did not prejudice com- plainants in the sale of blank wall paper. Complaint dismissed. St. Regis Paper Co. V. N. Y. C. & H. R. R. R. Co., Un- rep. Op. 368. §120. Passenger Car. (a) Minimum rates fixed by the L. & N., C. of Ga., I. C. and A. C. L. R. Rs. of $25 for each passenger or combination car, and $10 for a baggage car accom- panying a passenger car of theatrical troupes, appears to he reasonable so far as it applies to transportation in the South, where rates appear to be gener- ally for this service on a higher basis than in other sections of the country. Chappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 59. §121. Peas, Beans, Hominy. (a) Complainant attacked the reason- ableness of a rate of 85c per 100 lbs. on canned peas, beans, homipy, pork and beans, etc.. from Longmont, Loveland and Greeley, Colo., to California ter- minals and a rate of 80c to north Pacific coast terminals. It was contended that a rate of 68c should be established, being 75 per cent of the rate from Chicago to the coast, and 80 per cent of the rate from the Missouri River. HELD, any rate in excess of 80c per 100 lbs. upon REASONABLENESS OF RATES, §121 (b)— §122 (f) 683 canned goods from Colorado points to the California terminals is unreasonable. The rate to the north Pacific coast ter- minals is not found to be unreasonable. Empson Packing Co. v. Colorado Midland Ry. Co., 22 I. C. C. 268, 270-271. (b) On carloads of lima beans from Montalvo. Somis and Saticoy, Cal., to Omaha, Neb., defendants collected charges at the rate of 85c during February, March and April, 1909. Prior to Jan. 1, 1909, the rate to Omaha and all eastern territory was 75c, but subsequent to 1900, changes from time to time in the mini- mum weight had resulted in an increase of earnings per car on shipments to Omaha, from $180 to $300. The increased rate of 85c yielded earnings of $340 per car. On June 5, 1909, the rate of 75c was restored to Omaha, and points in Texas, but in practically all the territory east of Omaha the 85c rate remained in effect. HELD, that the rate was unreasonable, and for the future should not exceed 75c. Reparation awarded. Commercial Club of Omaha v. S. P. Co., 18 I. C. C. 53, 56. §122. Petroleum. (a) Complainant attacked the rates on petroleum and its products in carloads from Coffeyville, Kan., to Ft. Smith and Van Buren, Ark., 1€3 and 165 miles, re- spectively, of 23c per 100 lbs. Also to Little Rock and Pine Bluff, Ark., 323 and 365 miles, respectively, of 27c per 100 lbs. The Commission had prescribed a rate via the lines of defendants of 19c per 100 lbs. as reasonable for the haul from Coffeyville to Memphis, Tenn., a distance of 469 miles by the shorter route and 475 miles by the longer route. The rates complained of produced revenue of about 27.8 mills per ton per mile to Ft. Smith, 27.2 mills to Van Buren, 16.4 mills to Little Rock and 14.5 mills to Pine Bluff, or an average of about 21.5 mills per ton per mile. The 19c rate to Memphis is the equivalent of about 8.1 mills per ton per mile. The rates into Memphis from eastern and southern points produced in earnings a general average of less than 8 mills per ton per mile. HELD, the rates are unreasonable, and should not exceed 19c from Coffeyville to Ft. Smith and Van Buren, and 23c to Little Rock and Pine Bluff. Merchants Freight Bu- reau V. M. P. Ry. Co., 21 I. C. C. 573. (b) Complainant refined oil at Find- lay, O., and attacked the rate of 13i/^c per 100 lbs. on crude petroleum C. L. from Fla^ Rock, 111., to Findlay, a distance of 357 miles, rate per ton mile 7.56 mills. HELD, from an examination of the rec- ord, the revenue per ton mile is less than under rates to other points in com- parisons furnished by complainant. Com- plaint dismissed. National Refining Co. V. C, C. C. & St. L. Ry. Co., 20 L C. C. 649. (c) The rate on petroleum and its products of 33c from Coffeyville, Kan., to Enid, Okla., was found unreasonable to the extent that it exceeded 25c. and reparation awarded following Oklahoma V. C. R. I. & P. Ry. Co., 15 L C. C. 42. National Refining Co. v. A. T. & S. F. Ry. Co., 18 L C. C. 389, 390. (d) Complainant attacked the rates on petroleum from Kansas City, Mo., and Independence, Coffeyville, Caney, Cha- nute, Erie and other Kansas refining points to Guthrie, Oklahoma City, Med- ford, Enid and other points in Oklahoma. The rates attacked ranged from typical points from 27c to 38c on distances rang- ing from 137 to 318 miles, as compared with rates ranging from 20c to 24c to Arkansas points ranging from 154 to 283 miles, and as compared with rates of from 15c to 20c to Missouri points, ranging from 132 miles to 291 miles. The rates attacked exceeded generally the rates charged for like hauls in any other part of the country. HELD, the 'rates complained of were unreasonable. Re- ductions .ordered, ranging from about 8c to about 12c. Oklahoma v. C. R. I. & P. Ry. Co., 15 I. C. C. 42, 43. (e) On carloads of crude petroleum from Paola, Kan., to Kansas City, Kan., a distance of 43 miles, the traffic pass- ing en route through a portion of Mis- souri, complainant was assessed a rate of 8c. On the basis of the intrastate rates prescribed by the Kansas commis- sion, the charge would have been 5'^^c. The rate from Nowata, Okla., to Kansas City, 221 miles, was 10c; from Red Fork, Okla., to Kansas City, 270 miles, I7c. Complainant's petroleum conipeted in the market at Kansas City with that from Nowata. HELD, the 8c rate attacked was unreasonable to the extent that it exceeded 7c. Hafey v. St. L. & S. F. R. R. Co., 15 I. C. C. 245, 246. (f) Rates on lubricating oil from Fayette, Ky., to Superior, Wis., should not exceed those in effect to Duluth, Minn. Reparation awarded. Buffalo Oil 684 REASONABLENESS OF RATES, §122 (g)— §125 (b) Co. V. C. N. O. & T. P. Ry. Co., Unrep. Op. 289. (g) Rates on petroleum and products from Chanute and Erie, Kan., to Omaha, Neb., should not exceed those in effect from Coffeyville, Kan. Reparation awarded. Chanute Refining Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 348. §123. Petroleum Skimmings. (a) Complainant shipped from Musko- gee, Okla., to Coffeyville, Kan., carloads of the so-called lighter ends of petro- leum oil, which had been separated from the crude oil by a process of skimming, but was useless for commercial purposes until a further process of refinement had been undergone. Defendants assessed the rates applicable to refined oil. This product, known as the light-end distillate, was worth at Muskogee about S^^c per gallon, materially lower than the prices of the articles into which it was ulti- mately separated. One of the roads over which some of the shipments moved es- tablished a rate on fuel oil 2c in excess of the rate' on crude oil. Fuel oil was produced from the Muskogee crude oil by the identical process which extricated this light-end distillate. There was some difference in price, but the gap between them was not so great as that which sepa- rated them from their commercially re- fined-products. HELD, that a reasonable rate on the commodity shipped would not have exceeded by more than 2c per 100 lbs. the rates contemporaneously appli- cable to crude oil, which relationship should be established for the future. Reparation awarded. National Refining Co. V. M., K. & T. Ry. Co., 23 I. C. C 527, 531. §124. Plaster Boards. (a) Compainant, manufacturer of plas- ter board at Garbutt, N. Y., attacked the carload rate of $2.60 on plaster boards from Garbutt to New York City as un- justly discriminatory, as compared with the $2 rate on plaster, and as unrea- sonable per se. Prior to June 1, 1907, a commodity rate of $2 per ton applied to both wail plaster and plaster board. Defendants justified the rate attacked on the ground that plaster board was a more valuable commodity than wall plaster. HELD, the rate attacked was discrimi- natory and unreasonable, and should not exceed $2.35. Defendants ordered to ad- just their rates to other Pennsylvania and New England points on this basis. Sackett Plaster Board Co. v. B. R. & P. Ry. Co., 18 I. C. C. 874, 375. (b) No commodity rate on wall plaster; class rate of ll%c applied. Shortly afterward commodity rate of G^/^c made applicable, which was subsequently advanced to 7c. HELD, rate should not exceed 7c, and that it be maintained for a period of two years. Acme Cement Plaster Co. v. I. C. R. R. Co., Unrep. Op. 30. (c) Rate on wall plaster from Mar- low, Okla., to Perth Amboy, N. J., shall not exceed the rate to New York City. Reparation awarded. Acme Cement Plaster Co. v. C. R. I. & P. Ry. Co., Un- rep. Op. 58. §125. Poles, Piling, Posts. See Supra, §105. (a) On poles and piling from various points in Oregon to stations on defend- ant's line in California, complainants were charged $1 per ton more than they would have been charged on lumber. The rates on poles from the points of origin specified to points in Arizona, New Mexico and Utah were the same as the rates on lumber. Defendants claimed that the rates were different because of watef competition from Portland, which was greater on lumber than on poles, but no evidence was introduced of any substantial difference in the water rates of the two articles. The cost of ship- ment was about the same, and poles were less valuable. HELD, that the rates on poles and pilings were unreason- able to the extent that they exceeded the lumber rates. Reparation awarded. California Pole & Piling Co. v. S. P. Co., 22 L C. C. 507. (b) On poles and fence posts moving from Beaudette and Warroad, Minn., via the Can. N. and Gt. N. Rys. to Grand Forks and other points on the latter line, the rates were higher than on lumber from the same points. The rates on lum- ber appeared to be sufficiently high, yield- ing a per-ton-mile revenue of 1.3c. The distance from Beaudette to Grand Forks was 196 miles and from Warroad to Grand Forks 37 miles less. HELD, the rates on such poles and posts should be reduced so as to practically equal the rates on lumber, following the general rule in that respect, and that joint rates should be established from Beaudette to the points in question. Partridge Lum- REASONABLENESS OF RATES, §125 (c)— §129 (a) 685 ber Co. v. Gt. N. Ry. Co., 17 I. C C. 276, 279. (c) On a shipment of cedar poles from Chicago to Brady, Tex., complain- ant is entitled to the rate upon lumber between these points, and may recover the excess charged above such rate, and defendants are ordered in the future to maintain a rate upon poles not exceeding that upon lumber. MacGillis & Gibbs Co. V. C. & E. I. Ry. Co., 16 I. C. C. 40, 41. (d) Rates on poles should not exceed rates on lumber. National Pole Co. v. C. St. P. M. & O. Ry. Co., Unrep. Op. 124. §126. Phosphate Rock and Acid Phos- phate. (a) Complainant attacked the rates on phosphate rock and acid phosphate from Baltimore, Md., Buffalo, N. Y., and Tennessee phosphate fields and Washing- ton Court House, O., to Prairie Switch, Ind., and demanded lower rates and the application of single rates to phos- phate rock, ground or crude, and acid phosphate. The rates attacked were, on both phosphate rock and acid phosphate, from Baltimore, 18c; Buf- falo, 131/^c; Washington Court House, lOo; Nashville, 17i^c; Mt. Pleasant, 29c on acid phosphate and $3.45 on phosphate rock. The crude phosphate rock may be transported in open cars without injur/, whereas acid phosphate must be pro- tected from the weather. The 18c rate from Baltimore, 656 miles, yielded 5.48 mills per ton mile. The 10c rate from Washington Court House to Prairie Switch. 200 miles, if reduced to 9c, would yield more than 8 mills per ton mile. HELD, the Commission was not justified in ordering the application of the same rate to acid phosphate as to phosphate rock; that the rate from Washington Court House should be reduced from 10c to 9c on acid phosphate and the rate of 131/^c from Buffalo should be reduced to 12c, and that the 17i/^c rate from Nash- ville should be adjusted to bring it into line with the other rates from Tennessee fields. Other rates involved not found to be unreasonable or discriminatory. Reparation denied on shipments from Buffalo in view of the fact that the rate exacted was the class rate applying to Prairie Switch, and all other places simi- larly situated, and in view of the hold- ings of the Commission that a reduction of rates does not necessarily carry with it the right to reparation. Bash Fer- tilizer Co. V. Wabash R. R. Co., 18 I. C. C. 522, 526. §127. Potatoes. (a) From May 13, 1903, to Oct. 12, 1908, the joint rate on potatoes in car- loads from Pound, Wausaukee and Beaver, Wis., was 15c to Painesdale, Mich. This rate was canceled Oct. 12, 1908, leaving in force a 21c rate until Nov. 10, 1908, when the 15c rate was restored. The shipments in question moved between Oct. 12 and Nov. 10, 1908, HELD, the rate charged was un- reasonable. Reparation awarded. Thomas v. C. M. & St. P. Ry. Co., 16 I, C. C, 364, (b) Potatoes are liable to greater damage from heating than from any other cause. In Re Advances on Pota- toes, 23 I. C. C. 69, 70. §128. Pulp Wood. (a) Complainant charges that rates on pulp wood of 41/^c per 100 lbs. from Casco, Minn., to Superior, Wis., 5c from other points in Mesaba territory, and 7.3c from Deer River and Ericson's Spur were unreasonable. From Casco to Su- perior is 84 miles; from points covered by the blanket rate of 5c, the average distance is 93 miles; from Dser River and Ericson's Spur the distance is 122 and 125 miles, respectively. The rates on lumber from the territory involved to Superior were less than the rates on pulp wood. Defendant asserted these lumber rates were abnormally low on account of another road. Lumber is much more valuable than pulp wood. HELD, that, admitting defendant's contention on such a low grade of traffic as pulp wood, rates should not exceed the rates charged for lumber. Reparation awarded. Wisconsin Pulp Wood Co. V. Gt. N. Ry. Co., 22 L C. C. 594, 595. §129. Pyrites Cinder. (a) The rate on pyrites cinder from Buffalo, N. Y., to points in Pennsylvania and New Jersey was $2, Under this rate {be commodity was valued at $1 per gross ton at Buffalo and was unable to move. At Bayonne, N. J., this commodity was valued at $2 per ton on account of the difference in freight rates, as com- pared with Buffalo, to points in New Jer- sey and Pennsylvania, The rate on iron pyrites, of which pyrites cinder is the product, was but $1.40 from New York, 686 REASONABLENESS OF RATES, §129 (b)— §133 (a) Philadelphia and Baltimore to Buffalo, while the pyrites cinder for a haul of but a part of the distance was assessed the $2 rate, the cheaper commodity thereby being charged a greater amount for a shorter haul. The rate on iron orp was $1.45 to points carrying the $2 rate on pyrites cinder. HELD, the rate at- tacked was unreasonable and should not exceed the rate on iron ore from Buffalo. Naylor & Co. v. Lehigh Valley R. R. Co., 15 I. C. C. 9. (b) The rate on pyrites cinder should not exceed the rate on iron ore. Naylor & Co. V. L. V. R. R. Co., Unrep. Op. 168. §130. Roofing Material. (a) Complainant manufacturer at- tacked the rate from Carthage, O., to Nashville, Tenn., of 19c on mixed car- loads of roofing material, consisting of roofing paper of tarred felt, composition roofing made of saturated felt with a preparation of asphalt and other ingredi- ents, sheath paper ingredients, and sheath paper made of straw pulp and laid underneath the roofing. These prod- ucts were wound in rolls and placed on end in the car. Inside of each roll of composition roofing was placed a can of nails weighing 1 lb. and a pint can of roofing cement. Prior to 1895 a com- modity rate of 20c applied on roofing pa- per and on printing and wrapping paper. On that date this rate was reduced to 16c and then shortly afterwatrds ad- vanced to 16*^0, which rate obtained until 1907, when it was canceled, as to complainant's commodity, and a rate of 25c put into effect. In 1909 a rate of 19c was established. The 16^/^0 rate still ap- plied on printing and wrapping paper. Wrapping paper was worth from $30 to $180 per ton, and printing paper from $50 to $140 per ton. Complainant's products were incombustible and impervious to water. The rate from Cincinnati, which took the same rate as Carthage, to Nash- ville was, on iron roofing, 15c; roof- ing slate and tile, 13c; shingles, 16c. The rate on complainant's products from Cincinnati to New Orleans, 925 miles, was 22c; from St. Louis to Nashville, 350 miles, 20c. The distance from Carthage to Nashville is 310 miles. The value of complainant's products va- ried from $20 to $50 per ton. HELD, on this evidence the 19c rate was not un- reasonable, but that defendants should extend the privilege of carrying the ce- ment and nails included within the rolls at the 19c rate. Chatfield Mfg. Co. v. L & N. R. R. Co., 18 I. C. C. 385, 387. §131. Rosin. (a) From Louin, Miss., to Peoria, 111., a rate of 61c was exacted on a carload of rosin. At the time of shipment a rate of 27c was in effect from Laurel, Miss., a point three miles from Louin, to groups of points near Peoria and Chi- cago. Defendants admitted that the rate from Louin should not be higher than from Laurel and that the rate exacted was unreasonable. HELD, the 61c rate was excessive to the extent that it ex- ceeded 27c. Reparation awarded. Cen- tral Commercial Co. v. M., J. & K. C. R. R. Co., 15 L C. C. 25, 26. §132. Sacked Corn. (a) Complainants shipped from Elk- point, S, D., to Anaconda, Mont., one car- load of sacked corn half cracked and half whole, on which freight charges were col- lected of 75c per 100 lbs. At time of shipment, defendants had a rate of 55c per 100 lbs. on brewers' meal, brewers' grits, brewers' fiakes, bran, middlings, shorts, cracked or chopped corn, corn- meal, hominy, in straight or mixed car- loads and a rate of 50c per 100 lbs. on whole corn in straight carloads. HELD, that a 55c mixed carload rate could not be allowed upon the commodities men- tioned and denied upon craclied corn and whole corn; that the charge exacted was unreasonable; rate of 55c per 100 lbs. established for mixed carloads of cracked corn or whole corn between points men- tioned, and reparation awarded. Mc- Caull-Dinsmore v. C. M. & St. P. Ry. Co., 20 L C. C. 15. §133. Safety Fuse. (a) On a carload of safety fuse from Avon, Conn., to Pleasant Prairie, Wis., via rail to New York, thence via water to Norfolk, thence via rail to destination, complainant was assessed 69c. The tariffs actually provided for this rate, but were in an incomplete and uncertain condition, and did not provide what was intended by the carriers. Later a rate of 44c was established via the route in question. HELD, the charge was un- reasonable. Reparation awarded on the basis of 44c. Du Pont De Nemours Powder Co. v. N. Y. N. H. & H. R. R. Co., 16 I. C. C. 351, 352. REASONABLENESS OF RATES, §134 (a)— §136 (a) 687 §134. Salt. (a) On carloads of salt from Detroit, Mich., to Memphis, Tenn., a rate of 16c was charged. The only evidence of un- reasonableness offered by complainant was that for a period of two years shortly prior to the shipment, a rate of 13 2-3c had been maintained. The 16c rate at- tacked yielded 4 mills per ton mile. HELD, the evidence was not sufficient to show the rate attacked to be unreason- able. Delray Salt Co. v. Detroit, Toledo & Ironton Ry. Co., 18 I. C. C. 245, 246. (b) On a carload of salt from Detroit, Mich., to Patricksburg, Ind., a rate of 12 l-3c was charged. At time of ship- ment a rate was in effect via another route of 8 l-3c. Shortly after the ship- ment moved, defendants published and maintained a rate of 8 l-3c for several months, when it was advanced to lOi/^c. the present rate. Defendants conceded the 121/^c rate to be unreasonable to the ex- tent it exceeded lOi^c. Complainant in attacking the IQi^c rate offered no evi- dence except the lower rate of 8 l-3c via another route. HELD, the 12 l-3c late was unreasonable, but the lOi/^c rate was not shown to be excessive. Reparation awarded on the basis of IQi^c. Delra^ Salt Co. v. M. C. R. R. Co., 18 T. -:. C. 247, 247. (c) Complainant attacks the rates on salt in carloads from Detroit, Mich., to Buffalo, N. Y., of 8c per 100 lbs., to New York City of IIV2C per 100 lbs., and to other seaport cities basing on the latter point and taking the usual arbitraries over or under that rate. Detroit salt competed with that produced in other lo- calities, and particularly in the East with Ohio and New York salt, as well as with the imported article. The selling price of bulk salt on the warehouse floor at Detroit was about $1.50 per ton, or 7^c per 100 lbs., and in packages loaded in a railroad car, about 10c per 100 lbs. or $2 per ton. From June 1, 1903, to Nov. 1, 1907, the rate from Detroit to Buffalo was 10c per 100 lbs. Between the lat- ter date and March, 1909, salt in bulk took a rate of 5c, and in packages of 6%c. On March 1, 1909, the rate was made 8c in packages or in bulk. Buffalo is 251 miles east of Detroit. The former rate on bulk salt was 5c, or nearly 4 mills per ton per mile, and the rate of 6 2-3c on salt in packages yielded 5.31 mills, whereas the present rate of 8c yielded 6.4 mills. Since January 15, 1906, defendant had maintained a rate from Syracuse to Buffalo of 4c per 100 lbs., yielding a ton-mile revenue of 5.2 mills for a much shorter haul. Since Dec. 14, 1906, defendants voluntarily have maintained a rate from Detroit to Albany of 13c per 100 lbs., yielding 4.71 mills per ton mile. HELD, the rates on salt from Detroit to New York City and points tak- ing the New York rptes should not ex- ceed 15c per 100 lbs. Delray Salt Co. v. M. C. R. R. Co., 18 I. C. C. 268, 269. (d) On a shipment of rock salt from Lyons, Kan., to Lusk, Wyo., via Superior, Neb., defendant connecting carrier charged 44c from Superior to Lusk. The rate from Superior to Orin Junction, Wyo., to which Lusk is intermediate, was 28c. Defendant's practice was to apply the longer distance rat-^ to points inter- mediate, although shortly before the shipment its tariff canceled such pro- vision. HELD, the 44c charge was un- reasonable. Reparation awarded on the basis of the 28c rate, but on stipulation of complainant a 35c rate from Superior to Lusk was established for the future. Sunderland Bros. Co. v. C. «& N. W Ry. Co., 16 I. C. C. 433, 434. §135. Sash Weights. (a) Complainant attacked the unrea- sonableness of the rate of 23c per 100 lbs. on sash weights from Shreveport. La., to Marshall, Tex., a distance of 42 miles. Between the same points, defendant had in effect a commodity rate of 6i/^c per 100 lbs. upon car wheels, axles and castings, articles substantially similar in trans- portation requirements, but of greater commercial value than sash weights. From Terrell, Tex., to Shreveport, 158 miles, defendant maintained a commodity rate of 17%c on sash weights. HELD, the rate of 23c on sash weights from Shreveport to Marshall is unlawful and unreasonable, and defendant ordered to establish for the future a rate not to exceed 6i^c per 100 lbs. Henderson Iron Works & Supply Co. v. T. & P. Ry. Co., 20 I. C. C. 159. §136. Sawdust. See §105, Supra. (a) On sawdust in carloads from East Grand Forks, Minn., to Minnewaukan, N. D., a commodity rate of 20c was ex- acted. HELD, sawdust being a low- grade commodity and valued at about ?1.50 per ton, the rate should not exceed 688 REASONABLENESS OF RATES, §137 (a)— §140 (b) 8c per 100 lbs., minimum 24,000 lbs., so as to correspond with the rate on fuel wood and that on sawdust on the lines of other carriers in the territory in ques- tion. William Plummer Co. v. N. P. Ry. Co., 18 I. C. C. 530, 531. §137. Second-Hand Steel Rails and Log- ging Equipment. (a) Complainant shipped second-hand steel rails, old logging cars, steam Bkidders and other equipment, Onalaska, Ark., to Batchelor, La., under a combi- nation rate of from 86c to 94c, distance of about 454 miles. St. Louis is 926.5 miles from Batchelor via the lines of defendant, and shipments from St. Louis passed through Onalaska. HELD, the charges exacted should not exceed the St. Louis rate and were unreasonable to the extent they exceeded $3.77 per ton on the steel rails and 35c per 100 lbs. on the other equipment. Repara- tion awarded. Northern Lumber Mfg. Co. V. T. & P. Ry. Co., 19 I. C. C. 54. §138. Sheet-Iron Roofing. (a) Complainants attacked the rate of 23c per 100 lbs. on carload shipments of sheet-iron roofing from Newport, Ky., and Cincinnati, O., to Knoxville, Tenn. Contemporaneously a rate of 20c ap- plied on sheet iron, and both sheet-iron and iron roofing were rated sixth class in the classification. The two articles are very similar in that the material is identical and the price practically the same. There is a difference in that sheet iron would require painting or other preparation to satisfactorily adapt it for use as roofing. In trade there is no competition between the two, and roofing is to a very slight extent a manufactured product of sheet iron. The lower rate on the sheet iron was due to competitive influences absent on the roofing. North of the Ohio River and in other sections of the country sheet- iron and iron roofing took the same rate. HELD, as a general rule there is no objection to a reasonable differential between the rates on material and the manufactured product thereof. The commodities involved bear to a degree the relation of raw material and prod- ucts, and the difterence in the rates is not found to be undue. Complaint dis- missed. McClung & Co. V. L. & N R, R. Co., 23 L C. C. 414, 416. §139. Shingles. (a) Complainant shipped shingles, C. L., from Monroe, La., to Crowell, Tex,, under a joint through class rate of 44c. Five days after this shipment moved a commodity rate of 26%c be- came effective. But a month later this rate was canceled and there was estab- lished between the same points but via a different route a 26i/^c rate. A part only of the defendants appeared at the hearing and admitted the justness of the claim for reparation. HELD, the charges exacted were unreasonable to the extent they exceeded 26 %c. Menefee Bros. V. V. S. & P. Ry. Co., 19 L C. C. 117. §140. Snapped Corn. (a) Complainants shipped a carload of snapped corn, or corn in the shuck, Erath, La., to Miles, Tex., under the lawful combination rate of 52i/^c. Sub- sequently the rate was reduced to 31c. The rate on corn, Miles to Erath, at time of hearing, was 25c. One defend- ant was willing to apply a rate of 31i/4c if its connections would join in such action. An oflficer of one defendant ex- pressed the opinion that a reasonable rate would have been 35c. HELD, 31c was a reasonable rate on the shipment. Reparation awarded. Browne Grain Co. V. G. C. & S. F. Ry. Co., 20 I. C. C. 163. (b) On one carload of snapped corn from Ninnekah, Okla., to Clarksville, Tex., and on another from Addington, Okla., to Clarksville, Tenn., rates of 28%c and 2134c, respectively, were col- lected, being 125 per cent of the shelled corn rates of 23c and 17c, respectively. Shortly prior and shortly subsequent to the shipments in question the rates on snapped corn and shelled corn were the same. Defendants stated that the rate was raised on snapped corn on ac- count of shortage of equipment and for the purpose of inducing shippers to ship their corn shelled. The cars in question weighed 35,030 and 37,170 lbs., respectively, a fact showing that snapped corn weighed as heavily as shelled corn. The minimum for snapped corn was the actual weight when loaded to visible capacity, but not less than 24,000 lbs. Complainant offered no other evidence except to rely on Ochel- tree Grain Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 46. HELD, the rates exacted were unreasonable to the ex- REASONABLENESS OF RATES, §140 (c)— §144 (a) 689 tent that they exceeded the rates on shelled corn. Texas Grain & Elevator Co. V. C. R. I. & P. Ry. Co., 18 I. C. C. 580, 581. (c) A charge of 29.38c on snapped corn in carloads from Okemah, Okla., to Terrell, Tex., is excessive, where the shelled corn rate is 23i/^c, and defend- ant shortly after the shipment in ques- tion applies that lower rate to snapped corn. Reparation awarded. Tully Grain Co. V. F. S. & W. R. R. Co., 16 I. C. C. 28, 29. §141. Stamped Ware. (a) The carload rate of $1.80 on stamped ware in corrugated strawboard boxes shipped from Buffalo to Califor- nia and North Pacific terminals was at- tacked as unreasonable and discrimina- tory. The tariffs expressly provided a rate of $1.20 on stamped ware in boxes, barrels and crates. The pack- ages here involved were neither boxes, barrels nor crates, within the meaning of the tariff. The rule further provided for a 50 per cent higher rate if the articles were shipped in bales, bags or bundles. HELD, the shipment was governed by no published rate, and inasmuch as other classifications in force at that time placed such packages in the same class as wooden boxes, and the trans- continental tariffs succeeding the tariff in effect at the time of shipment makes no distinction, and considering the character of the commodity and of the package, the rate is unreasonable to the amount of its excess over $1.20 per 100 lbs. Republic Metalware Co. v. E. R. R. Co., 22 L C. C. 565, 567. §142. Staves. (a) Complainant attacked the rates on staves from Harrisburg, Paragouid. Jonesboro, Brinkley, Clarendon, Little Rock, Pine Bluff, Fordyce, Stephens, Camden, Texarkana, Ark., and Maiden, Mo., to Alexandria, Mo., and Keokuk. la. For 15 years prior to September, 1908, the defendants maintained a joint through rate of 17c per 100 lbs. between Harrisburg and Alexandria, under which the complainant transported this traffic. The joint rate was then canceled, rnd the combination local rate of 19c ex- acted. The distance is 422 miles, which under a rate of 17c yielded a ton-mile revenue of 8 mills. The M. P. R. R., a defendant, maintained from Alexandria to Kansas City, a distance of 539 miles, a rate of 16c; to St. Joe, a dis- tance of 607 miles, a rate of 17c. The rates from the other points had been variously advanced, ranging from 2c to 5c over what they" had been for some seven years prior to the date of the advance. HELD, that ordinarily a through rate for a long haul should be less than the sum of the locals, snd that a ton-mile revenue of 8 mills for this commodity, which is substantially lumber, cannot be pronounced low; that a through route and joint rate should be established from Harrisburg to Alex- ; andria under a rate not exceeding 17c f per 100 lbs., and that the rates from Maiden, Mo., Paragouid, Ark., and Jonesboro, Ark., to Alexandria, Mo., are unreasonable to the extent they ex- ceed 15c, 17c and 17c per 100 lbs., respect- ively. Reparation awarded. Bon Bros. Mfg. Co. V. C. B. & Q. R. R. Co., 19 I. C. C. 136. §143. Stucco. (a) A rate of 41c on stucco in car- loads from Gypsum, la., to Lemmon, S. D., is not shown to be unreasonable, the only evidence presented being the mere fact that a lower rar.e was sub- sequently established by defendants, Quammen & Austad Lumber Co. v. C. G. W. R. R. Co., 18 L C. C. 599, 600. §144. Sugar. (a) Since 1901 the rate on raw sugar from New York via water to Nor- folk aitd thence by rail to Martinsville and Winston-Salem, N. C, was 29i^c. \ During that period the rate to Reids- yille, N. C, was 40c. At the request of complainant tobacco manufacturers at Reidsville, the rate was on May 15, 1909, reduced through an error to 26i^c, the intention of the defendants being to reduce the same to 29 ^/^c, so as to correspond with the Martinsville and Winston-Salem rate. Reidsville is 233 miles, Martinsville 248 miles and Win- ston-Salem 282 miles from Norfolk. De fendants admitted that they put the new rate to Reidsville in effect because the old rate was relatively "out of line" and "wrong." No other evidence of the unreasonableness of the old -'Oc rate to Reidsville was offered. Com- plainants' nominal competitors at Mar- tinsville and Winston-Salem were con- trolled by the American Tobacco Co., 690 REASONABLENESS OF RATES, §144 (b)— §145 (a) and there was, in fact, no real competi- tion. HELD, while the mere voluntary reduction by a carrier of a rate is not of itself sufficient to prove the old rate unreasonable so as to entitle a shipper to reparation, still the evidenje of unreasonableness is sufficient where the defendant admits that the old rate was excessive. Ordered that the rates to Reidsville should not exceed that to Martinsville and Winston-Salem. Reparation awarded on the basis of 294c and not on the basis of 26i^c. Penn Tobacco Co. v. Old Dominion S. S. Co., 18 I. C. C. 197, 199. (b) On a shipment of sugar in car- loads from Eaton, Colo., to Decatur, 111., complainant was assessed a joint through rate of 74i^c, the only joint through rate to which one of the de- fendants was a party. At the time of shipment a joint through rate of 32 ^c was in effect between said points, such rate not being applicable over the line of defendant. Subsequent to the ship- ment defendant joined in a joint rate between said points of 32i^c. HELD, the rate charged was unreasonable Reparation awarded on the basis of 32^0. Havemeyer & Co. v. U. P. R. R. Co., 17 L C. C. 13. §145. Sulphuric Acid. (a) Complainant attacked the rates on sulphuric acid in carloads from Cop- perhill, Tenn., of $2.60 to Athens, Ga., 258 miles; of $3 to Augusta, Ga., 356 miles; of $4 to Columbia, S. C., 409 miles; of $3 to Dublin, Ga., 327 miles, as tjrpical points. Sulphuric acid was used by the complainant in large quan- tities in the manufacture of fertilizer. The principal ingredients of fertilizer are phosphate rock and sulphuric acid. The process of acidulation can be car- ried on wherever the rock and the acid can be most cheaply brought together. The rock is found throughout the south- eastern states. Other ingredients are usually added by the local dealer. The sulphuric acid used in this industry had until recently been produced mainly from iron pyrites, the bulk of which was Imported from Spain. The cost of pro- ducing 50-degree sulphuric acid from pyrites was about $4.50 per ton. Re- cently the copper smelters of Tennessee had manufactured large quantities of sulphuric acid as a by-product. The com- plainant corporation was organized as a result of a contract with the smelters to purchase the entire outfit of sul- phuric acid at 60 degrees of strength at about $5 per ton. This represented a cost of about $4 per ton for the acid reduced to the 50 degrees basis. The cost of sulphuric acid to the complain- ant's competitors was the cost of pyrites, plus the amount of freight on the py- rites to the interior, plus the cost of mg,nufacture. One ton of pyrites makes two tons of acid. Complainant's rates on acid were higher than the rates on pyrites. The cost per ton mile on sul- phuric acid ranged from 7 to 8 mills to points of present or prospective ship- ment. The low rates on pyrites were due to the fact that the rock situated in the interior could not compete with the rock on the coast, although the cost of distribution of the fertilizer was less In the interior. The Railway Commis- sion of Georgia established low rates on pyrites in order to stimulate the production in the interior. Fertilizer tonnage was important to many southern railroads. Rates were reduced to meet the Georgia rates. The pyrites rates were the result of competition. Sul- phuric acid was transported in tank cars with a capacity of 50 tons. The cars were owned by complainant. The car- riers paid %c per mile both ways for their use. The cars were always re- turned empty. The traffic did not re- quire expedited service. The movement was uniform. The liability to loss and damage was small. The volume of traf- fic was comparatively large, 250,000 tons per year, with considerable prospective increase. Considerable negotiations had taken place relative to the rates. The carriers maintained that sulphuric acid should take the same rate as fertilizer. Fertilizer did not compete with the acid. The value of fertilizer was $15 to $20 per ton. Acid is distinctly a raw material. The value of acid was about the same as that of phosphate rock in Tennessee and Florida. The loading of acid was heavier than rock, but the tank car returns empty, while the rock cars took a return load. The rates on phos- phate rock had been highly competi- tive. HELD, that the rate on pyrites should not be used as a standard to fix the rate on acid; that the rate on acid may well be somewhat higher than the rate on rock, and that the rates to Athens, Augusta, Columbia and Dublin as typical points should not exceed REASONABLENESS OF RATES, §145 (b)— §148 (c) 691 $2.20, $2.80, $3.15 and $2.65, respectively. Reparation awarded for rates charged in excess of these rates. International Agricultural Corporation v. L. & N. R. R. Co., 22 I. C. C. 488, 493, 494. (b) On carloads of sulphuric acid shipped from Howe, 111,, to Aetna, Ind., the class rate of 13c is, upon admission of defendants, held unreasonable, and reparation is awarded on the basis of 10c, the rate established by defendant subsequent to the shipment and prior to the filing of the complaint. Mineral r Point Zinc Co. v. Wabash R. R. Co., 16 I I. C. C. 440, 441. (c) Complainant manufacturer of sul- phuric acid at Detroit attacked the rate of $2.72 per ton on iron pyrites from Baltimore to Detroit, as compared with the rates accorded to competitors at Chicago, St. Louis and Cincinnati. Prior to the date of advance, Jan. 1, 1907, the rate to Detroit had been $1.74, except for the years 1903 and 19o6, when it was $1.56 and $2.68, respect- ively. Prior to the advance the rate to Detroit averaged 44c a ton less than to Chicago, whereas under the rate at- tacked it was only lie less. Over the short line distance from Baltimore to Detroit the rate attacked yielded 4.19 mills per ton mile and by the longer route over which the complainant's shipments moved, 3.84 mills. Since the date of the hearing defendants estab- lished rates from Baltimore to Detroit, Cincinnati, St. Louis and Chicago of $2.21. $2.53. $2.86 and $3, respectively. HELD, that while the rate attacked , yielded a low revenue, still the defend- ant having long maintained the rates previously in effect and complainant's sale contracts and competitive relations having been established on the basis of the former rates, the rate attacked was unreasonable and unjust to the ex- tent that it exceeded $2.21. Reparation awarded. Detroit Chemical Works v. Northern Central Ry. Co., 13 I. C. C. 857, 362. §146. Tanners' Outfits. (a) Carloads containing a second- hand tanner's outfit shipped from Mil- waukee to Tacoma, Wash., was classi- fied as machinery, and complainant was assessed $1.40 per 100 lbs., 24,000 lbs. minimum. HELD, this freight could not be classified either as cooperage or machinery; and that the $1.40 rate was unreasonable. Reparation awarded on $1.35 basis, which was declared to be a reasonable rate. Carstens Packing Co. V. C. M. & St. P. R. R. Co., 16 I. C. C. 469, 470. §147. Tent Pins. (a) Upon a carload of rough sod tent pins from Gleason, Ark., to Dallas, Tex., the class rate of 60c was assessed. At the time shipment moved a rate of 20c was in effect on lumber. The value of the shipment was $194.36 and the freight exacted $180. Defendant ad- mitted the unreasonableness of the charge. Shortly after the shipment a rate was established on tent pins of 21c. HELD, the rate exacted was un- reasonable. Reparation awarded on the basis of 21c. Beekman Lumber Co. v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 274, 275. §148. Ties. See Supra, §105. (a) The exception by defendants of hewn oak cross ties from the applica- tion of the rates on oak lumber from points in Arkansas west of Pine Bluff on the St. L. S. W. Ry. to points in Texas on the I. & G. N, R. R. is un- reasonable and unjustly discriminatory, and defendants will be required to apply to hewn oak cross ties the joint rates contemporaneously applicable to oak lumber. Signor lie Co. v. I. & G. N, R. R. Co., 21 L C, C. 615, 617. (b) Complainants shipped a carload of switch ties, Harvey, Va., to Mus- kegon, Mich. Consignee refused to ac- cept the shipment on account of mis- routing. The delivering line used the ties itself and credited the shipper, who had paid no charges, with the market price at destination, which was less than the accrued freight charges. HELD, the rate on the ties should not exceed the rate on lumber. The delivering line authorized to refund to the shipper the difference between the market value of the ties and the freight rate on lum- ber, and to adjust the account with connecting carriers. Fullerton Powell Hardwood Lumber Co. v. V. & S. W. Ry. Co., 20 I. C. C. 86. (c) The rate for the transportation of ties, C. L., Tennessee Ridge, Tenn., to Louisville, Ky., should not exceed the rate contemporaneously in effect for carriage between the same points for 692 REASONABLENESS OF RATES, §148 (d)— §150 (c) lumber similar in quality to that from which the ties are made. Chicago Car Lumber Co. v. L. & N. R. R. Co., 19 L C. C. 438. (d) Rate on crossties should not ex- ceed the rate applicable on lumber of the same kind. Reparation awarded. Preston v. R. F. & P. R. R. Co., Unrep. Op. 203. (e) Rates on cedar ties exceeded those in effect on lumber. Reparation awarded. MacGillis & Gibbs Co. v. C. & N. W. Ry. Co., Unrep. Op. 271. (f) Rates on crossties found to be unreasonable to the extent that they exceed the rates contemporaneously charged for the transportation of lumber. Wheeler-Holden Co. v. L. & N. R. R. Co., Unrep. Op. 402. (g) Rates on crossties found to have been unreasonable to the extent that they exceeded the rates contemporan- eously in effect on lumber manufactured from the same kind of wood. Reparation awarded, Stricklin & Co. v. L. &. N. R. R. Co., Unrep. Op. 533; Gooch Lumber Co. V. L. & N. R. R. Co., Unrep. Op. 535; Harmount v. L. & N. R. R. Co., Unrep. Op. 545; Ohio Valley Tie Co. v. L. H. & St. L. Ry. Co., Unrep. Op. 567. §149. Tin Plate Scrap. (a) Complainant attacked the rate of 52%c per 100 lbs. on "scrap tin plate," C. L., Denver, Colo., to Streeter, 111. Prior to the movement defendants maintained a specific commodity rate of 30c per 100 lbs. on scrap tin, but, owing to cancelation, the commodity rate of 525^c on junk applied, which was collected. Subsequently a specific commodity rate of 31 %c on tin plate scrap was published. HELD, scrap tin plate is refuse of little intrinsic value. The invoice price of the consignment in question was only $5 per ton. It is apparent that it can move only under a rate relatively low as compared with other articles usually classed as junk. Tiiis fact was recagnized by the car- riers when, after the junk rate had been applicable for a few months, they re-established a specific commodity rate substantially as low as the one that had been in effect for several years. Rate exacted was unreasonable to the ex- tent it exceeded 31 %c. Vulcan Detin- ning Co. v. U. P. R. R. Co., 21 I. C. C. 93. §150. Vehicles, Wagons, Buggies. (a) On vehicles in carloads from Elkhart, Ind., to Milwaukee, Wis., com- plainant was charged a joint rate of 23i^c per 100 lbs. The proportional rate to Milwaukee on shipments going through to points beyond where com- plainant's competition exists is IS^/^c. The rate had been advanced twice within the six past years. The evidence indicated that the rate from Elkhart was considerably higher than from any other point in Central Freight Association territory to Milwaukee, although trans- portation was under similar conditions. HELD, the rate was unreasonable to the extent that it exceeded 18v2C per 100 lbs. Reparation awarded. Lindsay Brothers v. L. S. & M. S. Ry. Co., 22 I. C. C. 516. (b) Complainant shipped one carload of wagons from Wagon Works station, Toledo, O., to Tonopah, Nev., under a rate of $3.28 per 100 lbs. On the date of shipment a rate on farm wagons in carloads from Toledo to Pacific coast terminals was $1.25 per 100 lbs., in- cluding Sacramento and Los Angeles. The rate from Sacramento, Cal., to Tono- pah, Nev., was $1.46 per 100 lbs. Two days after the shipment moved the rate from Sacramento to Tonopah was reduced to $1.46 per 100 lbs. HELD, that the rate of $2.03 per 100 lbs. from Sacramento to Tonopah, when used as one of the factors in determining the rate from Toledo to Tonopah, was un- just and unreasonable to the extent that it exceeded the rate of $1.46 from Los Angeles to Tonopah on the date shipment moved. Reparation awarded. Mllburn Wagon Co. v. L. S. & M. S. Ry. Co., 18 I. C. C. 144, 145, 146. (c) Complainant was assessed 73c on a mixed carload of buggies and wagons from East St. Louis to Beebe, Ark. Shortly before shipment moved a rate of 30c had been in effect, and shortly thereafter said rate of 30c was restored and maintained for four years, whereupon the 73c rate was restored. Defendant at the hearing indicated its intention of establishing a 39c rate in the near future, but did not admit the 73c rate to be unreasonable. Com- plainant offered no further proof of the unreasonableness of the rate ex- acted. HELD, the 73c rate was unrea- sonable. Reparation awarded on the basis of 39c. Parlin «& Qrendorff Co. v. REASONABLENESS OF RATES, §151 (a)— §153 (b) 693 St. L. I. M. & S. Ry. Co., 15 I, C. C. 145, 146. §151. Walnut Veneer. (a) On walnut veneer from Kansas City to Chicago and Chicago points, complainant was assessed 65c in any quantity. Shortly before the hearing the rates were reduced to 27c, carloads, and 45c, less-than-carloads. The better grade of veneer sells at the mill for $5 and $6 per thousand; it readily loads from 30,000 to 40,000 lbs. The rate attacked was high as compared with that applying on the same commodity in other localities. It was higher than the rate on lumber, but did not com- pete with same. Its value was such that a few cents difference did not con- trol the point of manufacture. HELD, the said 65c rate exacted was unreason- able, but the later rates of 27c in car- loads and 45c in less-than-carloads were not unreasonable. Reparation awarded. Penrod Walnut & Veneer Co. v. C. B. & Q. R. R. Co., 15 I. C. C. 326, 327. §152. Watermelons. (a) Complainants in 1908 and 1909 shipped over defendants' lines from Holcomb and Blodgett, Mo., and other points, a number of carloads of water- melons, consigned to Minneapolis and St. Paul and other points, at a rate of 29c per 100 lbs., based on a minimum of 25,000 lbs. This rate was a combina- tion made up of lie from producing points to St. Louis and balance to points beyond. It was alleged that the rate was unreasonable in so far as lie exceeded the sum of 7.2c, being the in- trastate rate to St. Louis fixed by a Missouri statute, and that this rate dis- criminated in favor of St. Louis deal- ers over dealers in other states. Repa- ration was asked. Complainants and defendants each cited numerous other rates on melons to support their re- spective contentions. The evidence dis- closed that the state rate of 7.2c yielded lower earnings than the rate on any other commodity moving between the same points, and in order for a St. Louis dealer to obtain the state rate into St. Louis he would have to load and unload the shipments and pay switching and possible demurrage charges; that the lie rate to St. Louis returned ton-mile earnings of about 12 1/^ mills, but the originating carrier of melons had an extra expense of $1.10 | for slatting cars and a per diem charge of $5 per car for "parking" cars to in- sure prompt forwarding. Petition dis- missed. HELD, the rate paid by com- plainants was not unreasonable or un- duly discriminatory. Gamble-Robinson Commission Co. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 138, 140. §153. Wheat, Corn and Rye. See Supra, §89, §92. (a) Complainant attacked the carload rate of 46c per 100 lbs. for the trans- portation of bulk corn from Sioux City, la., to Hinsdale, Mont., a distance of 950 miles, yielding a ton-mile revenue of 9.68 mills. In the reverse direction the rate was 30c, or 6.31 mills per ton mile. Using an average haul of 244 miles, the average rate per ton per mile of the defendant, including both carload and less-than-carload rate, for the year ended June 30, 1910, was 8.22 mills. On this ton-mile basis the rate charged would have been 38c. HELD, the rate assessed was unreasonable to the extent it exceeded 38c. Reparation awarded. Black v. G. N. Ry. Co., 23 I. C. C. 402. (b) The rates on wheat and corn and their products from the Joplin, Mo., group to Little Rock and Alexandria territories were attacked as unreason- able and discriminatory in favor of other points in Kansas City territory, of which the Joplin group was a part, and in favor of southern Illinois points, and the rates from Joplin territory to Fort Smith, Ark., were alleged to be un- reasonable. . The Kansas City group ex- tended from the Missouri-Arkansas line north 250 miles, lying mostly in Mis- souri, but partly in eastern Kansas and northeastern Oklahoma. The Joplin group was a part of this territory. Joplin mills obtained 90 per cent of their wheat in Joplin territory. This wheat was known as "soft wheat," and the flour made therefrom was in particular demand in Little Rock and Alexandria territories. The average distance from complain- ants' mills to these territories was 350 miles. The average distance from the entire Kansas City group was 450 miles. Southern Illinois produces the same kind of wheat and the flour therefrom competed with complainants' flour. Rates now in effect from Kansas City group to Little Rock, Ark., were: (a) local rate from all Kansas City territory to Little Rock territory of 23c per 100 lbs., wheat or flour, from point of origin; 694 REASONABLENESS OF RATES, §153 (c)— (e) (b) proportional rates of 18c per 100 lbs. on wheat and wheat products which had moved by rail into the point of shipment; (c) milling-in-transit was per- mitted on a direct line haul without extra charge at a total rate of 23c. This rate, it is alleged, should be 18c. The principal grain shipping points, Kansas City, St. Joseph and Leavenworth, are situated in the northern part of Kansas City group. Practically the entire sup- ply of wheat for complainants' mills was drawn from Joplin territory. The average rate established by state authority in wheat-producing states was shown by a table in the opinion to be 17.45c per 100 lbs. for 350 miles. The short line from Kansas City to Fort Smith was 328 miles, and this would form a part of the through line from Kansas City and points in Joplin territory to Little Rock. The rate voluntarily fixed for this haul was 19c. The rates in some instances from some points in this and neighbor- ing territory to Texas points was higher, but such rates were controlled by the export rate through Texas points. The rate from Illinois points to Little Rock and Alexandria was 18c for an average distance of 312 miles. The former Illinois rate had been 16c and the Jop- lin rate 18c. Milling-in-transit privi- leges were shown to exist at Illinois points. HELD, the present rates on wheat from Joplin territory are too high, both of themselves and in com- parison with southern Illinois and north- ern Kansas City group points, and such rates should not exceed 20i/^c. The present rate on corn, 19c, a differential of 4c, is not justified by conditions and should not exceed IT^^c. The present Kansas City rate of 30c on wheat and 26c on corn should not exceed 27i/^c and 24i^c for Joplin points. The 23c rate from the Kansas City group to Fort Smith should be revised in view of the rates on shipments from Illinois through Little Rock. The method of establishing rates in accordance with this opinion is left to the railroads. The present rates are not unlawful, and reparation will be denied. Southwestern Missouri Millers' Club v. M. K. & T. Ry. Co., 22 L C. C. 422, 427. (c) On a carload of corn from Glid- den, la., to Chetek, Wis., a rate of 25c was collected. At the time of shipment a rate of 20.1c from Nebraska points to Duluth, Minn., was in effect, and under this rate traffic might move through Glidden. The haul under this rate would be from a rep"*esentative Nebraska point anywhere from 548 to 980 miles to Duluth. The distance from Glidden to Chetek was about 656 miles. Shortly after shipment moved, defendant established a rate of 19i/4c between the points in question. HELD, viewed from the standpoint of distance and as evi- denced by defendant's subsequent action, the rate exacted was unreasonable. Repa- ration awarded on the basis of 19i/ic. Glavin Grain Co. v. C. & N. ^V. Ry. Co., 18 I. C. C. 241, 241. (d) On a carload of corn from Ninne- kah, Okla., to Lettsworth, La., a com- bination rate of 45c was charged, no through rate being in effect. Lettsworth is less distant than New Orleans, and at the time of shipment the rate to New Orleans was 29i/^c. Defendants' tariffs provided generally on traffic to Letts- worth a differential of 2c over New Or- leans. Before the shipment reached des- tination, a through rate of 29c was made applicable from Ninnekah to Lettsworth, which was subsequently increased to 30c. the 30c rate being in effect the date of the hearing. HELD, the rate exacted was excessive to the extent of 13i/^c, a reasonable rate being 31i/^c. Reparation awarded. Ocheltree Grain Co. v. T. & P. Ry. Co., 18 I. C. C. 412, 413. (e) Prior to the decision in Howard Mills Co. V. M. P. Ry. Co. et al., 12 I. C C. 258, the rate on wheat from Belpre, Pawnee Rock and Hutchinson, Kan., to Phoenix, Ariz., was 86c for wheat and $1.35 for flour. At the hearing of that case. Phoenix was not represented. Under the influe'^ce of that decision, de- fendants raised the rate on wheat be- tween the points mentioned to $1.18 and lowered the rate on flour to $1.25. Disre- garding the sale of offal, bran or shorts, on which a Kansas miller paid no freight nnder the raised rates, it c<^^t the coax plainant millers at Phoenix $1.77 to bring from Kansas to Phoenix 150 lbs. of wheat, which would produce 100 lbs. of flour, whereas 100 lbs. of flour could be shipped to Phoenix by the Kansas miller for $1.25. On account of the soft condition of wheat raised for the Phoenix market in the Salt River Valley, it was necessary for Phoenix millers to import Kansas hard wheat to mix therewith, in order to produce satisfactory flour. Phoenix sought to compete with Kansas and California millers only in a limited REASONABLENESS OF RATES, §153 (f)— §156 (a) 695 local area. Under the higher rates, the Kansas millers would drive the Phoenix millers out of business. The rate on wheat from Kansas to California plus the local rate hack to Phoenix was less than the rate frcm Kansas t • Phoenix attacked. Complainant demanded that the rate on wheat should be two-thirds of that on flour. To grant this demand would give Phoenix millers a monopoly of the trade in their local territory. The rate on flour from the Kansas points in question to Los .'.ngeles was 65c, and on wheat 58c. The rates from the Kansas points in question on wheat and flour to points in Arizona and California ranged from 80c to $1.13 and from $1.12 to $1.20, respectively. HELD, the decision in the Howard Mills case ordering a differential of 7c in the rates between flour and wheat was made without due consideration to the conditions at Phoenix; that the rates attacked were unreasonable and should not exceed $1.00 on wheat and $1.12 on flour, but that no ground for reparation was afforded. Valley Flour Mills v. A. T. & S. F. Ry. Co., 16 I. C. C. 73, 77, 79. (f) Complainant shipped a mixed car of wheat and rye from Arlington, S. D., to Milwaukee, the grains being separated by bulkhead; weight of wheat, 32,900 lbs.; of rye, 29,220 lbs. The rate on wheat was 19c; on rye, 18c. Charges were assessed on the basis of 19c on 54,000 lbs., and 18c on the same amount of rye. Defendant admitting the charge to be unreasonable, reparation was awarded on the basis of the actual weight and the 19c rate. Hewit & Con- nor V. C. & N. W. Ry. Co., 16 L C. C. 431. (g) On carloads of corn from Hum- boldt, Neb., to St. Francis, Kan., from Pawnee, Neb., to St. Francis, and from Humboldt to Atwood, Kan., rates of 19c, 18c and 18c, respectively, were assessed. The rate from St. Francis and Atwood to Kansas City and from Kansas City to these points m the reverse direction was 13.6c. Humboldt and Pawnee were intermediate to St. Francis and Kansas City. T:ic rates in Kansas and Ne- braska for distances similar to those in- volved in the hauls in question were be- tween 12c and 13c. The corn in question was shipped to be used for feeding pur- poses, so that defendant obtained the haul of the stock fattened from said grain. HELD, the rates exacted were un- reasonable. Reparation awarded on the basis of 13.6c. Cooper & Son v. C. B. & Q. R. R. Co., 15 L C. C. 324, 325. §154. Wire. . (a) The rate on plain wire which en- tered into the manufacture of spring beds should take a rate under that applicable to spring beds. Legget & Piatt Spring Bed Co. V. M. P. Ry., 22 I. C. C. 513, 515. §155. Wood-Pulp. (a) On carloads of wood-pulp board from Wabash, Ind., to St. Louis, Mo„ complainant was assessed the rate of lli/^c, in force for a considerable period. Fourteen months later, defendants re- duced the rate to 9c. HELD, no evidence being offered to show the ll^c rate un- reasonable at the time the shipments were made, complaint should be dismissed. Wabash Coating Mills v. Wabash R. R. Co., 18 L C. C. 91. §156. Wool. (a) In an investigation dealing with the rates, regulations and practices touch- ing the transportation of wool between points of origin in territory west of the Mississippi River and points of destina- tion upon or east of that river, the Com- mission finds that the cost of producing wool in the western territory has in- creased and is rapidly increasing, and that the increasing cost of land is one of the most serious factors contributing thereto; that since 1896 the present rates have been in effect with but some slight variations, although during that period the wool clip has nearly doubled and the business and earnings of the transcon- tinental lines enormously developed to such an extent that any general level of rates that was just and reasonable in 1896 would be extravagant in 1910; that from Colorado common points the rats on sheep in double-deck cars to Chicago is 51c, the wool rate $1,225; from Idaho the wool rate is $1,655, the sheep rate 80c; sheep in double-deck cars load approximately 22,000 lbs., the wool load- ing jfi 24,000 lbs.; the stock car returns emp'.y, the wool car may be availed of for a return load of almost any kind, and therefore the cost of the service is in every sense greater in case of sheep than in case of wool; that it is difllcult to justify any such difference in these rates as now exists, and it is therefore from the whole record found that these rates are unjustifiable and should be re- 696 REBATES— REBILLING vised and reduced, as follows: The rates prescribed are in all cases in carloads with a minimum for sacked wool of 24,- 000 lbs. in the standard 36-foot car and with a corresponding increase in mini- mum if the carriers elect of cars of larger size. In case of wool compressed to a density of 19 lbs. to the cubic foot, the minimum is 32,000 lbs. for a 36-foot car with a corresponding increase for larger sizes. On the Northern Pacific R. R., the rate from Mandan, N. C, to St. Paul and Duluth, when for movement beyond, ought not to exceed 50c. Be- yond Mandan the rate should increase 2c for every 25 miles. On the Great Northern Ry., the rate from Mondak, Mont, to Duluth, 633 miles, ought not to exceed 63c per 100 lbs. in sacks. Be- yond this point the rate should increase not exceeding two cents for every 25 miles. From St. Paul to New York, prac- tically 1,400 miles, the present ' rates should not be lowered upon either sacked or baled wool from St. Paul and Duluth to Boston and New York. The average distance from Colorado common points to St. Louis or the Mississippi River by the short line is about 900 miles. The present rates on wool from Colorado common points to St. Louis ought not to exceed in sacks 80c per 100 lbs. Beginning at Cheyenne, upon the Union Pacific lines, and going west, these rates should increase two cents for each 25 miles. Beginning at Trinidad, upon the Santa Fe lines, and going west, the same measure of increase should be applied. Upon the Denver & Rio Grande R. R. a rate of 90c may be applied at the first station west of Pueblo, beyond which the rate should increase at stations upon its main line not ex- ceeding two cents for each 25 miles. Upon the line of the Burlington R. R., between Omaha and Billings, the rate from Alliance, Neb., to St. Louis should not exceed 71c, and beyond Alliance should increase by not to exceed two cents for every 25 miles. Rates should be constructed in this manner upon both branch and main lines of the Great North- ern, Northern Pacific, Burlington, Union Pacific R. Rs., and in connection with the latter upon the Oregon Short Line, Ore- gon-Washington R. & N. Co., and upon the Santa Fe lines. Upon the Denver & Rio Grande R. R. these ratss should ap- ply only at stations upon its main line. The above rates are in all cases upon sacked wool. Rates upon baled wool of the density and with the minimum here- inbefore indicated should be less by 15 per cent than the maximum rates named for sacked wool. In computing these rates, fractions of less than one-half cent should be disregarded. Those of one- half cent or more should be treated as one cent. A reasonable through rate from western points of origin to Boston and New York would be constructed by adding to the rates which have been pre- scribed up to St. Louis in case of sacked wool 52c from there to Boston and 48c to New York; in case of baled wool, 47c to Boston and 43c to New York. The rate so established may be named by the car- riers either as joint through rates or as proportional rates up to and from the Mississippi River, or any other point se- lected as the equivalent, but they should be applied only to an actual through movement and should not be applied when the trafllc has been unloaded, taken possession of by the shipper, and re- billed from the intermediate point. Transit should be allowed at intermediate points on a direct line upon payment of 2.5c per 100 lbs. and upon the condition that it applies only to wool originating west of the Mississippi River, which must be kept separate from wool originating at points east of the river. So far as ap- plications for relief from the operation of the fourth section are concerned, rates to intermediate territory shall be con- structed upon the mileage scale pre- scribed in this opinion, increasing with distance until they meet the effect of water competition, and so long as the water competitive rates are themselves made by combination upon the terminal rates, uniformly and without discrimina- tion, the rate on sacked wool not exceed- ing that on baled wool by more than 25c per 100 lbs. from such water-controlled territory, the entire fabric of rates is a just and reasonable one and the inter- mediate rate with respect to any more distant competitive rate is just and rea- sonable. Carriers given until May 1, 1912, to check in rates in substantial ac- cord with the opinion. In Re Transporta- tion of Wool, Hides and Pelts, 23 I. C. C. 151. REBATES. See Crimes, VI. REBILLING. See Transportation, §2 (e). RECIPROCAL SWITCHING— RECONSIGNMENT, §1 (d) 697 RECIPROCAL SWITCHING. See Switch Tracks and Switching, §6. RECONSIGNMENT. I. LEGALITY. §1. Right to grant privilege. II. DISCRIMINATION. §2. In general. III. REASONABLENESS OF CHARGES. §3. In general. IV. TARIFFS AND PUBLICATION. §4. Necessity of publishing. §5. Construction in general. §6. Retroactive application. V. PROCEDURE AND REPARATION. §7. In general. §8. Parties to complaint. I. LEGALITY. ♦ §1. Right to Grant Privilege. (a) The reconsignment privilege has grown up in response to changes that have taken place in commercial adjust- ments in comparatively recent years. Formerly the large distributive centers of the country were the depots in which supplies were stored by jobbers prepara- tory to being shipped out in smaller lots through the adjacent territory. As, with the spread of population, this adjacent territory has developed smaller distrib- utive centers of its own, and as the transportation facilities have reached more and more intimately over its area, shipments from the factory have come more directly to the consumer. In many lines the jobber of the city has become largely a broker who directs distribution without directly handling the goods dis- tributed. In a sense, this distributive development is analogous to the earlier transportation development that came with the consolidation into railway sys- tems and the establishment of through routes in place of the separate operation of local lines. In both cases an economic saving is secured through the elimina- tion of unnecessary handlings of com- modities. The through route has justi fied itself in experience, and has become firmly fixed as an essential function of the transportation system. Whether re- consignment shall ultimately win such recognition is for the future to prove; at present it is on probation and is gen- erally regarded with limited favor save by those who profit from its extension. Detroit Traffic Ass'n v. L. S & M. S. Ry. Co., 21 I, C. C. 257, 258. (b) Reconsignment is allowed under Mie tariffs of the several carriers in two distinct classes of cases. A shipment while in transit to a given point may be diverted to another market, provided the order is received before the car has passed the proper junction point. A modification of this privilege is seen where the final destination of a shipment Is not announced by the shipper until the car has arrived at a designated junc- tion. Reconsignment in transit is usu- ally allowed by the carrier without any additional charge being made. Recon- signment at terminal on the other hand usually involves a special charge. In most cases cars for reconsignment are so designated at the time of shipment, and upon arrival at the original des- tination, they are placed on storage or "hold" tracks awaiting the reconsignment order. When the terminal tracks are con- gested, the carrier often, as a matter of convenience, holds them at some point short of destination, and provided this involves no disadvantage to the con- signee, such holding is constructively equivalent to holding at destination. De- troit TraflSc Ass'n v. L. S. & M. S. Ry. Co., 21 L C. C. 257, 259. (c) The primary economic advantage of reconsignment is found in the increase in the fluidity and regularity of the movement of commodities; there is an important elimination of economic waste in the reduction of the handling of goods between the producer and the consumer, celerity of movement is increased, the direction of commodities to the point of most active demand is facilitated. In other words, reconsignment increases the efficiency of transportation facilities in performing their most important function of bringing together supply and demand. The shipper of perishable products is enabled to divert his shipment from a market already overstocked, thus often converting a prospective loss into a gain; he is enabled to take advantage of his latest possible information as to market conditions. Similar advantages are seen in the movement of lumber and grain and other commodities of universal necessity. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257, 259. (d) It is the privilege of reconsign- ment that enables the jobber of coal to anticipate the orders of his customers, and to direct the flow of traffic to the points where it will do the most good. ■698 RECONSIGNMENT, §1 (e)— §2 (c) Were this privilege withdrawn, he would be obliged either to place his orders with the mines after instead of before receipt of orders from his customers, or to pro- vide storage facilities at the points where such facilities are necessarily most ex- pensive. The added expense of such service would be reflected in the price he would be compelled to make to his customer. Were the privilege of recon- signment withdrawn, it would probably mean the elimination or at least the mini- mizing of the broker as a factor in eco- nomic distribution. The expense of storage in a large city would be so much greater than the cost of storage at the point of consumption that the small dealer in the isolated community and the manufacturer would be compelled to draw their supplies direct from the mine. The greater the distance from which supplies are drawn, the greater the uncertainty as to the time of delivery. The proper use of reconsignment has the effect of substituting nearby supplies for the dis- tant supplies at the mines. Were De- troit eliminated as a distributive factor, the coal purchasers in Michigan would be obliged to order their supplies five or six weeks earlier, which in many cases would be a material hardship. Manufac- turing development has been very active throughout the state of Michigan, and any such disturbance of the fuel supply would be a serious blow to those inter- ests. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257, 260. (e) The dealer in a small community, who handles but a limited number of cars of coal each year, usually has a small capital, and is unprepared to tie up any part of that capital in holding coal to insure meeting a prospective de- mand. It is to his interest to postpone such investment to the last possible mo- ment. The irregularity of seasonal changes, the uncertainty of transporta- tion on account of weather conditions, the congestion of orders at the mines and of demands upon the carriers at the season of active demand, the vastly in- creased distance from which supplies must be drawn— all of these are factors working to extend the time during which coal must be held by the dealer if he is to be denied the privilege of reconsign- ment. To the consumer, who is, after all, the person most vitally interested, recon- signment means not merely regularity and timeliness of supply, but economy in securing that supply. Whatever increased expense in handling coal the dealer is put to, whatever additional cost is im- posed upon the broker who supplies his dealer, is transferred to the consumers' shoulders, with some slight additions in the way of insurance and interest for the use of capital. Nor is the practice without its advantages to the carrier in the increased regularity of movement, in the greater efficiency in direction of sup- ply, both in quantity and in kind, in the opportunity to relieve congestion at ter- minals by holding at points short of the terminal, and in the economy of handling that results in the consolidation of ship- ments to the distributing point, which usually means over by far the greater part of the haul. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257, 260. (f) A carrier can limit the number of free reconsignments permitted on any car. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 20 I. C. C. 559, 570. (g) A petition for the establishment of reconsigning privileges at New Or- leans, La., on rice shipped from New Or- leans to Houston, Tex., cannot be Tranted where there is no evidence to ■ndicate any considerable movement of rice between these points in the direction named, nor to show that the establish- ment of the privilege requested would stimulate increased shipments. Bayou City Rice Mills v. Texas & New Orleans R. R. Co., 18 I. C. C. 490, 491. il. DISCRIMINATION. §2. In General. (a) A reconsignment privilege whereby the application of the joint rate is secured is not one to be demanded by the public as a matter of right, but is a concession voluntarily granted by the carriers, but its application must be uniform. Dietz Lumber Co. v. A. T. & S. F. Ry. Co., 22 L C. C. 75, 76. (b) Granting a free reconsignment privilege to competitors at another sta- tion constituted undue prejudice against complainant. American Hay Co. v. L. V. R. R. Co., 21 I. C. C. 166, 169. (c) The granting of a reconsignment privilege on live hogs at Valley Junction while no such privilege is accorded at Cedar Rapids, la., does not subject com- plainant to an undue prejudice, inasmuch as he suffers no loss thereby. Sinclair & Co. V. C. M. & St. P. Ry. Co., 21 L C. C. 490. 502. RECONSIGNMENT, §2 (d)— §3 (b) G99 (d) Reconsignment is a privilege — not a right to be demanded by shippers — and can only be required where neces- sary to correct unjust discrimination. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 17 I. C. C. 479, 487. - (e) The Commission has always re- garded reconsignment as a privilege, not a right to be demanded by shippers, and has consistently refused to extend the same except to correct unjust discrimina- tion. Cedar Hill Coal & Coke Co. v. Colo. & So. Ry. Co., 16 I. C. C. 387, 393. (f) Complainant shippers of coal from the Walsenburg district, southern Colo- rado, attacked the reconsignment rule of defendants which placed a 72-hour limit, and asked that reconsignment be per- mitted at any time at the uniform charge of $2, plus demurrage, and that a car might be reconsigned where through rates were in effect out of the direct route at the through rate, plus i/^c per ton mile for the back haul, subject to a minimum of $5 per car. The evidence indicated that the reconsignment privilege imposed very burdensome services on the car- riers in the way of extra clerical work, switching service, etc. HELD, the de- mand should be refused. The Commis- sion has always regarded reconsignment as a privilege — not a right to be de- manded by shippers — and has consistently refused extending the same, except to correct unjust discrimination. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 16 I. C. C. 387, 393. Colorado Coal Trafnc Ass'n v. C. & S. Ry. Co., 19 I. C. C. 478. (g) The Commission does not feel justified in initiating or extending the application of reconsignment privileges unless deemed necessary to correct un- just discrimination. Sunnyside Coal Min- ing Co. V. D. & R. G. R. R. Co., 16 I. C. C. 558. III. REASONABLENESS OF CHARGES. §3. In General. See Facilities and Privileges, §15 (k); Tariffs, §3 (e). (a) The privilege of trying the mar- ket is of great benefit to the producer of live stock, and ought to be continued under reasonable terms and conditions, but as these marltets multiply it becomes more and more evident that carriers may with propriety impose a reasonable charge for the performance of the serv- ice granted in connection with transit privileges. Investigation of Alleged Un- reasonable Rates on Meats, 22 I. C. C. ICO, 174. (b) Complainant attacked the reason- ableness of the charge of $3 per car ex- acted by defendants at Detroit, Mich.. for the reconsignment of bituminous coal originating at points in Ohio and elsewhere and forwarded to various Michigan points. More specifically the defendant, P. M. R. R., was alleged to be guilty of unjustly discriminating against Detroit by permitting recon- signment of coal without charge at Ply- mouth and Ludington, Mich., as well as at stations along its line at Indiana, Illinois and Wisconsin. Similarly the L. S. & M. S. R. R. was alleged to per- mit free reconsignment at points on its line south and east of Toledo, O., while it declined to extend the privilege to Detroit. The privilege of reconsign- ment with regard to coal shipments was quite generally granted in the ter- ritory east of the Mississippi and north of the Ohio rivers. Reconsignment in transit was quite generally allowed without any charge for the privilege being made. As to reconsignment at terminals, however, a distinction had grown up recently, and the state of Michigan, with a narrow fringe of ad- joining territory on the south, been placed at a disadvantage as compared with the rest of this section of the country. The line of the B. & O. R. R. extending from Chicago Junction south of Sandusky, in Ohio, to Chicago, di- vided the two sections, and apparently the higher charge did not apply east or west of these points. It appeared that the charge for terminal reconsignment at all points south, east and west of this division line was $2, while north of It the charge had been made $3, the change going into effect early in the year 1910. It appeared that reconsign- ment at Detroit cost the carriers about $1.75 per car. HELD, that the fact of $2 being fixed upon as a charge through- out the greater part of the country raises at least a presumption that this rate covers not only the cost of the service, but a reasonable profit as well. This being so, there is a stronger pre- sumption that the charge of $3 at De- troit is unreasonable unless the local conditions are such as to justify a higher rate mere than at other places. This not appearing to be the case, no greater charge than $2 a car should be 700 RECONSIGNMENT, §3 (cd) — (n) imposed for the reconsignment of cars of bituminous coal at Detroit. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257. (cd) The reconsignment privilege in- volves extra labor in handling and in clerical work on the part of the carrier, and it is an established principle that the carrier is entitled to repayment of the cost of the service, together with a reasonable profit on that cost. On the other hand, while reconsignment may be granted or withheld at the option of the carrier, when the privilege is vol- untarily granted it must be on terms that are reasonable and that do not result in undue discrimination. The first question to be considered in this proceeding is whether the reconsign- ment charge imposed at Detroit is un- reasonable. It may be remarked that the fact of $2 being fixed upon as the charge throughout the greater part of the country raises at least a presump- tion that this rate covers not only the cost of the service, but a reasonable profit as well. This being so, there is a stronger presumption that the charge of $3 at Detroit is unreasonable, unless the local conditions are such as to justify a higher rate there than at other places. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257, 262. (e) In fixing a reconsignment charge each car Is to be charged only with its proportion of the expense of the move- ment. Detroit Traffic Ass'n v. I^. S. & M. S. Ry. Co., 21 I. C. C. 257, 263. (f) Diversion is costly to the carrier and advantageous to the shipper. Ar- lington Heights Fruit Exchange v. S. P. Co., 19 I. C. C. 148, 152. (g) Upon stipulation of the inter- ested parties, it is found that defend- ant's reconsignment charge at East St. Louis, 111., on shipments of hay orig- inating at points north, west and east thereof and subsequently reconsigned to southeastern destinations should not exceed ll^c per 100 lbs. Reparation awarded. St. Louis Hay & Grain Co. v. M. & O. R. R. Co., 19 L C. C. 533, 535. (h) Carriers are entitled to reason- able profits on reconsignment service. St. Louis Hay & Grain Co. v. M. & O. R. R. Co., 19 L C. C. 533, 534. (1) After the arrival of a car at point of destination the shipper ordered the carrier to deliver the same to a person other than the consignee. No additional expense was involved. De- fendant assessed a reconsignment charge of $5. HELD, such charge was unrea- sonable and should not exceed $1. While ordinarily a reconsignment re- fers to a change in destination rather than to a mere change in the name of the consignee, the latter change is rec- ognized by Conference Ruling No. 72 as a reconsignment. The privilege of reconsignment is a thing of value to the shipper and of expense to the car- rier; therefore, a charge may be made, but the value and extent of that service vary, and the charge should be in pro- portion to the service. Reparation awarded. Beekman Lumber Co. v. K. C. S. Ry. Co., 17 I. C. C. 86. (j) A reconsignment charge of $5 is excessive where only the name of the consignee is changed. One dolla;' per car is a reasonable charge. Beek- man Lumber Co. v. K. C. S. Ry. Co., 17 I. C. C. 86. (k) The reconsignment privilege is a thing of value to the shipper and of expense to the carrier; therefore a charge may be made, but the value and extent of that service vary, and the charge should be in proportion to the service. Beekman Lumber Co. v. K. C. S. Ry. Co., 17 L C. C. 86, 87. (1) Two carloads of coal shipped from Rugby, Colo., to luka, Kan., under a rate of $3 per net ton, were refused by the consignee, and were reshipped upon complainant's order back to Pres- ton, Kan., charges for the reshipment being assessed at 3c per 100 lbs. for the haul of 9.6 miles. Complainant con- tended that a rate based on i/^c per ton mile, with a minimum charge of $5 per car, should be prescribed to cover reconsignment involving a back haul. HELD, ignoring the question of jurisdiction, no facts were presented justifying the order . requested by the complainant. Reparation awarded. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 16 I. C. C. 560. (m) The reasonableness of a recon- signment charge is dependent upon the cost of that service. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 15 I. C. C. 546, 549. (n) For some time prior to shipment of carloads of coal by complainant from Greenville Mine, near Ludlow, Colo., to RECONSIGNMENT, §3 (o)— (s) 701 destinations in Oklahoma, the tariff of defendant, C. & S. Ry. Co., provided for a charge of $2 per car for the privilege of changing the destination of ship- ment, when the change was ordered before the arrival of the car at desti- nation or within 24 hours thereafter. A few days before the shipments moved by complainants, defendant changed the charge to $5 per car. Within a year defendant restored the former $2 charge. Defendant offered no specific evidence to show the actual cost of making these reconsignments. HELD, the former ex- istence of the $2 rate and its restora- tion by defendant created a presumption that the $5 charge was unreasonable, and defendant having offered no evi- dence to rebut this presumption, the $5 rate should be held excessive to the extent that it exceeded $2. Reparation awarded. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 15 I. C. C. 546, 549. (o) A published switching tariff pro- vided for the absorption of switching charges on carload freight at St. Louis, Mo., and East St. Louis, 111. Granite City was not a corporate part of either of the cities, being located three or four miles north of East St. Louis. Granite City took the East St. Louis rate on lumber from Thornton, Ark., consigned direct to that place. Com- plainants reconsigned to Granite City carloads of lumber consigned to East St. Louis and were charged $5 per car as a reconsignment charge. Complain- ant offered no evidence to show that it was unreasonable to exclude Granite City from the free switching limits of East St. Louis and did not attack the reasonableness of the charges exacted. HELD, complainants were not entitled to reparation. Beekman Lumber Co. v. St. L. S. W. Ry. Co., 14 L C. C. 532, 534. (p) Where under the facts the Com- mission refuses to forbid the re-estab- lishment of a reconsignment charge, which has been canceled voluntarily by the carrier, it will not order reparation for such charge assessed upon ship- ments made before the cancelation. Kehoe & Co. v. L C. R. R. Co., 14 L C. C. 541, 544. (q) The through rate from points north of the Ohio River via Cairo, 111., was equal to the sum of the locals into and out of Cairo. On local shipments into Cairo and local out, the two rates were equal to the through rate with a maximum free time of 48 hours for un- loading the shipment in, and 48 hours for loading the shipment out. On ship- ments into Cairo and there reconsigned, the rates were equal to the sum of the locals, with an additional charge of $3 for the privilege of reconsignment, and with a maximum free time of 24 hours, at Cairo. This reconsignment charge was voluntarily canceled by defendant carrier, but complainant asked that it be forbidden to re-establish same with- in a period of two years. On local ship- ments into Cairo and local out, the additional service consisted in placing the car for unloading and in making out a new waybill. If the car was placed on the private siding of the con- signee, it had to be handled by the car- rier only when placed for unloading, re- quiring the carrier to take out the empty, place a new car for loading and take out the loaded car. If there were several cars on the team track, and it was necessary to move any of those cars before the 48 hours' free time had expired, switching such cars back and forth was required. In case of recon- signment defendant carrier was required to obtain instructions, retag the car, or, in the absence of instructions, to place same on the "hold" track. In case of holding, , considerable correspondence was required, and waybills had to be changed and new bills of lading issued. The undisputed cost of such service was $3 per car. While on the "hold" track for reconsignment defendant was respon- sible for the freight. When delivered locally, however, it was not so respon- sible, and its cars might be kept on 'ts own rails instead of being sent to for- eign roads. HELD, the request for an order forbidding the re-establishment of such reconsignment charge should be denied. Kehoe & Co. v. I. C. C. R. R. Co., 14 L C. C. 541, 544. (r) Carriers permit reconsignment in transit at through rate to new destina- tion only when it is shown that the change was made necessary by insol- vency of the consignee or bona fide re- fusal of the original consignee to accept the shipment. Follmer & Co. v. G. N. Ry. Co., Unrep. Op. 510. (s) A carrier negligently failed to com- ply with instructions for reconsignment. HELD, that the carrier is responsible for additional freight charges incurred as a 702 RECONSIGNMENT, §4 (a)— §5 (ab) result of its negligence. Reparation awarded. Hathway Lumber Co. v. L. & N. R. R. Co., Unrep. Op. 544. IV. TARIFFS AND PUBLICATION. §4. Necessity of Publishing. See Tariffs, §4 (p), (q). (a) A reconsignment privilege not filed with the Commission cannot afford a basis for reparation. Kile & Morgan Co. V. Deepwater Ry. Co., 15 I. C. C. 235, 238. (b) Reconsigning rules required to be signed by shipper and subject to can- celation at the option of the carrier are inconsistent with the law governing the establishment and modification of tariff schedules. Kile & Morgan Co. v. Deep- water Ry. Co., 15 I. C. C. 235, 238. (c) A carload of lumber from Harper, W. Va., consigned to New Haven, Conn., was routed via the Harlem River with a view of permitting complainant to reconsign same at New York to any New England point taking the same rate as New Haven. Defendant initial carrier routed the shipment via Cin- cinnati, thereby causing same to reach New Haven without going by way of Harlem River. Complainant was sub- jected to the additional charge of the local rate from New Haven to Nashua, N. H., to which destination he intended to reconsign said shipment at New York. No tariff allowing said reconsignment privilege was filed with the Commis- sion, and the only authority therefor was a circular issued by one of defend- ants, which was not filed with the Com- mission, provided for the cancelation o? said privilege at the option of the car- rier, and required the signature of the shipper to entitle the latter to avail himself of said privilege. HELD, while complainant would have been entitled to reparation for such extra charge caused by the misrouting, had the re- consignment privilege been duly pab- lished, he was not entitled to it by force of the circular, which failed legally to establish the same. Kile & Morgan Co. V. Deepwater Ry. Co., 15 I. C. C. 235, 237. (d) A circular purporting to author- ize reconsignment is not a lawful tariff, but is more in the nature of a private contract between the carrier and shipper. Kile & Morgan Co. v. Deep- water Ry. Co., 15 I. C. C. 235, 237. (e) A special tariff relating to a charge for reconsignment of hay at Kansas City was duly filed by defend- ant, but in its tariff naming the local rates into Kansas City there was no specific reference to or mention of the reconsignment tariff. Complainant was assessed $2 a car for this privilege at Kansas City on hay shipped into Kan- sas City and thence reconsigned to va- rious destinations. Such shipments took place prior to the promulgation on April 15, 1908, of Rule 10, Tariff Circular 15-A, requiring the initial carrier's tariffs con- taining the published rates to show the charge for reconsignment privileges or to state that shipments thereunder are subject to charge for such privileges according to the tariffs of the carriers granting same. HELD, the charge exacted was not unlawful by reason of defend- ant initial carrier's failure to make cross reference to the special reconsignment tariff in its tariff naming the local rates into Kansas City. Kansas City Hay Co. V. St. L. & S. F. R. R. Co., 14 I. C. C. 631, 633. (f) Reparation will not be awarded on the basis of a reconsignment priv- ilege customarily extended by the car- rier, but not duly published in its tariff. Sunderland Bros. Co. v. B. & O. S. W. R. R. Co., Unrep. Op. 267. §5. Construction in General. See Facilities and Privileges, §17 (g), (i): Tariffs, §3 (1) (aa), §7 (WW), (zz), (aaa), §9 (d), §12 (a). (ab) There is an ever-present tempta- tion before the shipper to convert the reconsignment privilege into a means of indefinite storage. So long as the demurrage fees are paid, the consignee regards it as his right to delay recon- signment as long as he pleases. The privilege of reconsignment properly car- ries no such right. Not a little con- sideration has been given to this ques- tion of unnecessary detention and its relation to the shortage of cars that work such a hardship upon the ship- ping community generally, and it is not among dealers in coal alone that prac- tices have grown up that do absolute injustice to other shippers. This ques- tion of detention, however, is one that must be worked out by itself, and it is not well that the advantages of recon- signment should be thrown away In order to avoid abuses that can be rem- edied in other ways. If the demurrage RECONSIGNMENT, §5 (c)— §6 (b) 703 charge of $1 a day is not sufficient to eliminate the abuse of excessive and un- reasonable detention the remedy lies in increasing the fee to an effective amount, not in the denial of a privilege that has elements of extreme value. Detroit Traffic Ass'n v. L. S. & M. S. Ry. Co., 21 I. C. C. 257, 261. (c) Under construction of tariff G, O. I. C. C, No. 639, a carload of water- melons from Lowell, Fla., to Pittsburgh, Pa., could be diverted before the car left Potomac Yard, Va., and could be reconsigned once after leaving Potomac Yard without extra charge. Wilson Produce Co. v. Penn. R. R. Co., 19 I. C. C. 1. (d) Complainant shipped hay, C. L., Warsaw Junction, O., to Allentown, Pa. From Allentown it was sent to Perth Amboy, and there refused by the con- signee. The car was reconsigned to Hackensack, N. J., and owing to an argument with the carrier as to whether complainant had the right to reconsign under the tariff demurrage charges accrued. HELD, that under a prop- er construction of the tariff complainant had the right to reconsign the shipment and that the demurrage accrued as a result of the unlawful act of the car- rier. Reparation awarded. Hanley Mill- ing Co. V. Penn. Co., 19 I. C. C. 475. (e) A reconsigning privilege permit- ting diversion cannot be construed to include a back haul of 48 miles without a reasonable charge therefor being im- posed. Lull & Co. v. M. St. P. & S. Ste. M. Ry. Co., 18 I. C. C. 355. (f) The right of reconsignment in transit does not carry with it the right to remove a portion of carload at recon- signing point. Acme Cement Plaster Co. V. C. & A. R. R. Co., 17 I. C. C. 220, 222. (g) Two carloads of butter were shipped by complainant from Wellington, O., and consigned to itself at Chicago. The local rate from Wellington to Chi- cago was 35c, and from C- icago to Evans- ville, Wis., 30.8c; the through rate from Wellington to Eyansville, 71c. Upon the arrival of the first car at Chicago, com- plainant sent a check for the freight at 35c, Wellington to Chicago. It was in- formed by defendant of an icing charge and was told that the entire charges might be paid at Evansville, to which ar- rangement complainant agreed, and re- consigned the car to Evansville. Upon the arrival of the second car at Chicago, complainant merely reconsigned it to Evansville. The through rate of 71c was assessed on both cars. Reparation was claimed on the basis of 65.8c, the com- bination rate, HELD, while a shipper has the right to consign a shipment to a given point, pay charges upon it, as- sume custody and take possesbion of the property, r.nd later reship it to another point under rates lawfully applicable to such shipment, complainant was not en- titled to reparation on the basis of the combination rate, since it did not reduce the property to its possession at Chicago. Wood Butter Co. v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 374, 375. (h) An intent to take possession of shipments at an intermediate point and to reconsign to avoid the payment of higher through rate cannot be allowed to control. What was actually done must govern. Wood Butter Co. v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 374, 375, §6. Retroactive Application. See Facilities and Privileges, §18 (I), (a) The retroactive application of a reconsignment privilege cannot be sanc- tioned, even though the carrier's custom was to permit reconsignment without tariff authority. Cady Lumber Co. v. M. P. Ry. Co., 19 1. C. C. 12, 13. (b) Complainant shipped a carload of lump coal from Strong, Colo., to Milford, Neb., shipment arriving at Milford 1:30 p. m., September 30, and notice of ar- rival being given consignee 7 a. m., Oc- tober 1. The shipment was refused by consignee on the morning of October 2. and consignor was immediately notified of such refusal. Complainant recon- signed same to Lincoln, Neb., on October 7. The tariff permitted reconsignment to a new destination in the same general direction as to the point to which the traffic was originally consigned if made within 72 hours after arrival at first destination. Consignor received no notice of the refust.! of consignee to ac- cept same until after the expiration of said 72 hours. Complainant claimed the 72-hour limitation was unreasonable, and that limitation had, in fact, been abol- ished at the time -of hearing. HELD, the Commission could not make a reconsign- ment provision retroactive by ordering reparation on shipments made at a time when the same was not available, and '704 RECONSIGNMENT, §6 (c)— REDUCED RATES. §3 (a) since complainant had not complied with the 72-hour limitation he was not en- titled to reparation, nor were defendants subject to a penalty for failure to notify the consignor of refusal of the shipmem in time to admit of the reconsignment within the limitation period. Sunny Sid€ Coal Mining Co. v. D. & R. G. R. R. Co. 16 I. C. C. r58, 559. (c) A reconsignment privilege cannot be given retroactive effect. Miller & Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 60. (d) A reconsignment privilege will not be given retroactive effect unless necessary to correct an unjust discrimi- nation. Menefee Bros. v. R. & W. R. R. Co., Unrep. Op. 359. V. PROCEDURE AND REPARATION. §7. In General. See Interstate Commerce Commis- sion, §14 (e); Reparation, §8 (e), §16 (b); Routing and Misrouting, §4 (m), §7 (s), (ttt). (a) Reparation awarded for damages caused by failure of defendant to cancel reconsigning instructions. Pomeroy & Co. V. Wabash R. R. Co., Unrep. Op. 8. §8. Parties to Complaint. (a) The Commission cannot enter ar order respecting privileges at New Or- leans on rice shipped from New Orleans to Houston, where the initial carriers on whose lines the reconsigning privileges are asked are not made parties. Bayou City Rice Mills v. Texas & New Orleans R. R. Co., 18 I. C. C. 490, 491. RECORDS. Of Carrier— See Evidence, §1 (I). REDUCED RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. §2. Power to suspend. n. LEGALITY OP REDUCED RATES. §3. Charitable institutions. §4. Government material. §5. Returned or old shipments. I. CONTROL AI:D REGULATION. See Courts, §11 (q). §1. Jurisdiction of Commission. (a) It is one thing for a carrier to voluntarily reduce rates not excessive for the service performed solely to meet competitive and commercial conditions, but a different thing for the Commission to compel such reductions regardless of tiansportation conditions. Chicago Lum- ber & Coal Co. V. Tioga Southwestern Ry. Co., 16 I. C. C. 323, 334. §2. Power to Suspend. (a) The Commission was called upon to postpone the effectiveness of certain reductions in rates because discrimina- tory against complainant, located at Okla- homa City, Okla. They consisted of re- duced proportional rates on packing- house products and fresh meats from Ft. Worth, Tex., to St. Louis, Mo., on fresh meats from 38^/^0 to 35i/^c, and on pack- ing-house products from 33c to 32^c. As these commodities from Ft. Worth moved largely to points beyond St. Louis, and ihese proportional rates were used in combination to make up through rates to such points beyond, the effect was to reduce the existing rates from Ft. Worth to northern and eastern points generally. The present differential in favor of Okla- homa City of 7c per 100 lbs. on fresh meat and 4i;4c per 100 lbs. on packing-house products on shipments to points in Cen- tral Freight Association territory ap- peared to le an off-hand adjustment of a trade and transportation dispute of which the Commission had no means of deter- mining its fairness or correctness on the present hearing, and complainants re- quested the reductions to be postponed until tbe general investigation now before the Commission be finished. HELD, the Commission decides that it has the power to suspend reductions of rates in any case where such suspension will oper- ate to prevent an apparent discrimina- tion. However, a prima facie case clearly and affirmatively persuasive should be presented before the power to suspend is exercised. This, not having been done, the complaint is dismissed. In Re Sus- pension of Rates on Packing-House Prod- ucts, 21 I. C. C. 68, 70. II. LEGALITY OF REDUCED RATES. §3. Charitable Institutions. (a) A charitable institution, as the term bears upon the right of carriers to Issue free transportation, is one which is administered ii. the public interest, and in which the element of private gain is wanting, and the definition includes hos- pitals, almshouses, orphanages, asylums and missionary societies. Such an in- REDUCED RATES, §3 (b)— §5 (b) 705 stitution does not necessarily lose its charitable character from the fact that it is under the management of a par- ticular denomination or sect, or because a charge is collected from some or all of those who enjoy its privileges. It is only necessary that it be conducted in the public interest and not for private gain. In Re Passes to Clergymen and Others, 15 I. C. C. 45, 46. (b) Clergymen acting as editors of officially recognized church papers, as college presidents or professors; as finan- cial agents for a church, or other religious or charitable institutions, including edu- cational institutions under church govern- ment; as workers in Christian Temper- ance or Y. M. C. A. work, and as brothers of religious orders, and sisters of charity devoting their entire time to religious work, who habitually wear a garb distinc- tive of their order, are not excluded from the privilege of receiving reduced-rate transportation. A clergyman does not lose his ministerial standing by reason of the fact that he leaves the pastorate for some other field of religious activity. Passes to Clergymen and Others, 15 I. C. C. 45, 46. §4. Government Material. (a) Complainant shipped eleven car- loads of anthracite coal from Chicago, 111., to Sturgis, S. D., for use of the United States government at Fort Meade, S. D., purchased by the United States at a price which included delivery of the coal at Sturgis. Defendant operates be tween Chicago and Sturgis 248 miles of land-grant-aided railroad, over which the government is required to pay only 50 per cent of the commercial rate. The shipments, however, were assessed the published rate of $6.80 per ton. The carrier through error quoted to complain- ant a rate of $5.9915 per ton, the land- grant rate. This rate was established subsequent to the shipment of coal con- signed to the government at Sturgis. The reasonableness of the $6.80 rate was not questioned, the propriety of the applica- tion of the land-grant rate to the ship- ment being involved. HELD, that is im- proper to permit the benefit of special rates on government material to accrue to anyone other than the government itself. Reparation denied. Havens & Co. v. C. & N. W. Ry. Co., 20 I. C. C. 156, 158. (b) There exists no reason why lower rates should be made for contractors of brick paving than should be made in favor of any other party who may have contracts for other work for public au- thorities. Metropolitan Paving Brick Co. V. A. A. R. R. Co., 17 I. C. C. 197, 204. (c) The Commission has no power under the law to require reduced rates for the United States, state or municipal governments. Metropolitan Paving Brick Co. V. A. A. R. R. Co., 17 I. C. C. 197, 204. (d) Section 22 of the Act gives car- riers the right to transport traffic for the use of the United States, state or municipal governments at reduced rates if they see fit to do so. Metropolitan Paving Brick Co. v. Ann Arbor R. R. Co., 17 I. C. C. 197, 204. §5. Returned or Old Shipments. See Classification, §11 (m); Evidence, §44 (a), §61 (g). (a) In the proceeding In the Matter of Reduced Rates on Return Shipments, 19 I. C. C. 409, the Commission directed the cancelation of half or reduced rates based upon the return character of the shipments to which applied. The pres- ent complainants seek the re-establish- ment of these rates upon the ground that the shipments are inherently of low value. HELD, to grant the prayers of these complainants would be to com- mit the Commission to the doctrine that rates on all commodities should be made with reference to value as the controlling element, and the Commis- sion must refuse to announce any such principle. Neither is it prepared to lay down the principle that old or second- hand articles must be treated differently from new. Such of these articles or parts as are in fact scrap are entitled to the scrap rate, but if they have any value as the articles which they orig- inally purported to be, the Commission does not feel that it can require the carriers to transport them at other than the regular tariff rates applicable to the new or originally transported article. Complaint dismissed. Minneapolis Traf- fic Ass'n V. C. & N. W. Ry. Co., 23 L C. C. 432, 436, 437. (b) The Commission is not prepared to lay down the principle that old or second-hand articles must be treated differently from new articles. Minne- apolis Traffic Ass'n v. C. & N. W. Ry. Co., 23 I. C. C. 432, 437. 706 REDUCED RATES, §5 (c) — (i) (c) The ruling of the Commission condemning the tariff rules of the car- riers in permitting "returned shipments" to be made at reduced rates at various periods up to four years after the orig- inal shipment was made does not pre- vent the carriers from establishing spe- cial ratings for the movement of de- fective or damaged goods, as rates de- pend largely upon value. If this course is adopted, however, the rating should be predicated entirely upon the low value of the freight. In Re Reduced Rates on Returned Shipments, 19 I. C. C. 409, 418. (d) There can be no justification for special rates on unsalable goods. In Re Reduced Rates on Returned Ship- ments, 19 I. C. C. 409, 418. (e) A reduced rate for the return of goods refused by a consignee at desti- nation is justified. In Re Reduced Rates on Returned Shipments, 19 I. C. C. 409, 417. (f) The Commission instituted an in- quiry into the legality of tariff rules providing for the application of reduced rates to returned shipments of agricul- tural implements, vehicles and other commodities. Under some of the tariffs these reduced rates applied during any time up to four years. HELD, that returned shipme t rates in general should be disapproved, but reduced rates for the return of freight which has been refused by the consignee at des- tination may properly be made. In the latter case the return movement is prac- tically a continuation of the going move- ment, and may for that reason be ac- corded lower than standard rates. Goods in closed packages may lawfully enjoy return shipment rates if tendered to the carrier within ten days following delivery. And while this concession xS a slight departure from legal theory it is doubtless essential if the rule is to be thoroughly workable. In Re Reduced ii.ates on Returned Shipments, 19 I. C. C. 409, 417. (g) The fact that freight has been shipped once and paid one way cannot be taken into consideration in fixing charges for a subsequent transaction. The principle underlying the ordinary transit privilege cannot be relied upon in support of the return shipment rule. Transit arrangements in their most com- mon form at least are susceptible of defense only upon the theory that the inbound and outbound movements are, in fact, parts of a single continuous transaction. While the freight is de- layed at the transit point the shipment is merely suspended temporarily, the present intention of the shipper being to forward the goods to their ultimate destination. Once let it be conceded that the inbound and outbound movements are separate and distinct and the im- propriety of applying any rates other than the regularly established locals would be self evident. It is clear that there is no real connection between an outbound shipment to-day and a "re- turned shipment" one year hence. There is no room whatever for the argument that the shipment is suspended during the period intervening between the two transactions, for there is no present in- tent to accomplish the return move- ment. It is therefore impossible to re- late the two services and urge the one as a reason for granting special terms to the other. In Re Reduced Rates on Retiwned Shipments, 19 I. C. C. 409, 417. (h) Complainant shipped over de- fendant's line agricultural implements from Hopkins, Minn., to its branch house at Dallas, Tex. These imple- ments were reshipped over defendant's line from Dallas to Kansas City to be repaired. Defendant's tariff provided that shipments which had paid full standard rates might be returned to the shipper at point of origin at one- half the authorized rate in direction of first movement. One-half the authorized rate from Dallas to Hopkins was 43l^c. Had the shipment in question been re- turned from Dallas to Hopkins it would have passed through Kansas City, a distance of 625 miles from Dallas, to HopkiLs, a distance of 1,240 miles from Dallas. Complainant was assessed the full rate of 72c from Dallas to Kansas City. Subsequent to the shipment an amended tariff would have permitted tnis return shipment from Dallas to Kansas City at 36c. HELD, the rate charged was unreasonable. Reparation awarded on the basis of 36c. Minne- apolis xiireshing Machine Co. v. C. R. I. & r. Ry. Co., 13 1. C. C. 128, 130. (i) Rule permitting return of ship- ments of agricultural implements at half rates within four years, while half rates were applicable upon other traffic only REFRIGERATION, §1 (a)— §3 (f) 707 if returned within one year, not found to have resulted in damage to complain- ants. Port Huron Engine & Thresher Co. V. G. C. & S. F. Ry. Co., Unrep. Op. 352. REFRIGERATION. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. DUTY TO FURNISH. §2. In general. §3. Incidental services and charges. III. REASONABLENESS OF CHARGES. §4. In general. IV. TARIFFS AND PUBLICATION. §5. Obligation to file. §6. Construction in general. V. WEIGHTS. §7. Minimums. CROSS REFERENCES. See Precooling. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. (a) The fact that refrigeration serv- ices are furnished by a company inde- pendent of the carrier, but which while independent in theory is in fact the property of the railroad upon which it operates, does not prevent the Commis- sion from determining the reasonable- ness of the refrigeration charge exacted by the railroad, but it should be deter- mined exactly as though the service were rendered by the railroad company itself. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 109. (b) Excessive icing charges exacted because of misrouting are not within the jurisdiction of the Commission. Interna- tional Salt Co. V. P. R. R. Co., 20 I. C. C. 543, 545. (c) Where there is no provision in a tariff for assessment of icing charge, and the shipper paid the sum demanded, the Commission has jurisdiction to in- quire what was a reasonable charge and to order repayment of whatever the carrier has collected over and above such reasonable charge. Memphis Freight Bureau v. K. C. S. Ry. Co., 17 I. C. C. 90, 92. M. DUTY TO FURNISH. §2. In General. %\s'^'"or"«"'J' ^Ki"V' Reasonable- r^ii^^ T^^ ^"^^ ^^ th« carrier to fur- nish refrigeration "upon reasonable re- quest" contemplates that it shall be paid for its service, and that sufficient traffic be offered to justify the furnish- ng of refrigaration. Albree v. B. & M. R. R., 22 I. C. C. 303, 322. (b) A carrier s duty, under the cir- cumstances, is to furnish refrigeration, and the carrier may insist upon fur- nishing that service exclusively. Arling- ton Heights Fruit Exchange v. S. P. Co., 20 1. C. C. 106, 116. (c) A shipper is entitled to icing of shipment which actually weighed less than the minimum fixed, provided trans- portation charges are paid upon full amount of prescribed minimum. Swift & Co. V. C. & A. R. R. Co., 16 I. C. C. 426, 430. §3. Incidental Services and Charges. See Switch Tracks and Switching, §5; Transportation. (a) Refrigeration and pre-cooling are different. Refrigeration is part of the transportation service. In Re Pre-cool- ing and Pre-icing, 23 I. C. C. 267, 269. (b) Refrigeration is, and pre-cooling is not, a part of the transportation service. In Re Pre-cooling and Pre- icing, 23 I. C. C. 267, 269. (c) Refrigeration should be provided or paid for by the shipper in addition to peddler-car service rates. In Re Ad- vances on Meats and Packing-House Products, 23 L C. C. 656, 671. (d) When a car of lemons or oranges is pre-cooled by the shipper, and for any reason during transportation the carrier becomes negligent so that the shipment is delayed, it has the right to protect itself against the consequences of its negligence by opening the bunkers and filling them with ice in the same man- ner as in case of a ventilated shipment, the expense being borne by the carrier. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 117. (e) The filling of the bunkers of a refrigerator car with ice is a part of the preparation of the car for shipment, and is not a part of the transportation service which is rendered by the rail- road. Arlington Heights Fruit Exchange V. S. P. Co., 20 I. C. C. 106, 118. (f) Carriers are entitled to additional compensation for keeping ice bunkers in repair. Arlington Heights Fruit Ex- change V. S. P. Co., 20 L C. C. 106, 120. 708 REFRIGERATION, §3 (g)— §4 (e) (g) Where a tariff provides that dur- ing certain seasons of the year re- frigerator cars will not be furnished individual shippers unless loaded to 10,- 000 lbs. minimum and contains another rule that an unloading charge will be assessed against separate shippers using a car for a consolidated shipment, it is unreasonable to assess an unloading charge against that shipper who orders a car and loads it to the minimum, even though other shippers subsequently from the same shipping point also load into the car, which then moves as a consolidated shipment. Davies v. I. C. R. R. Co., 19 I. C. C. 3, 5. (h) On shipments of beer from Olympia and Seattle to California, Ne- vada and Arizona points, defendants failed to provide refrigerator cars, and complainant was compelled to make ar- rangements for the same with a private company. Defendants collected $5 per car per trip for the cars, and paid the same over to the private company. De- fendants did not make a like rental charge on such cars against companies not located at Puget Sound points, for the reason that the owners of the cars did not require payment of such rental charges on them when loaded from points other than Puget Sound points. Defendant, N. P. Ry. Co., contended that the rates on beer were so low that it was not justified in permitting its own cars for such traffic to go off its line. HELD, the rental charge as- sessed was unlawful and discriminatory. Reparation awarded. Olympia Brewing Co. V. N. P. Ry. Co., 17 I. C. C. 178, 181. (i) Defendants' tariffs provided that where empty cars were ordered to load- ing points under ice an additional charge of $15 a car would be added to the regular refrigeration charges. Upon shipments of fruit from California the cars were loaded with pre-cooled fruit and were then placed under ice at the icing station and immediately forwarded without additional refrigeration service. The tariff was intended to apply on cars placed for loading at "outside load- ing stations," for such cars had not only to be iced before loading, but after loading was completed had to be hauled to an icing station and re-iced before the eastward movement began. Com- plainant was assessed the additional charge of $15 for icing. HELD, such additional charges were unreasonable. Reparation awarded. California Fruit Growers' Exchange v. Santa Fe Re- frigerator Despatch Co., 17 I. C. C. 404. ill. REASONABLENESS OF CHARGES. §4. In General. See Minimums, §7 (f), (r), (s) ; Rea- sonableness of Rates, §84 (b), (m), (P), (q), (X). (a) In determining the reasonable- ness of a rate on lemons from California to the East, moving under ventilation instead of refrigeration, the Commission cannot consider in favor of the carriers the additional cost of the haul of ice involved in the movement of oranges, but such expense must be charged only against that part of the movement un- der refrigeration. Arlington Heights Fruit Exchange v. S. P. Co., 22 I. C. C. 149, 153. (b) No ground exists upon which a shipper who ships under ventilation could be required to help pay the trans- portation charge of the shipper who requires refrigeration. Arlington Heights Fruit Exchange v. S. P. Co., 22 I. C. C. 149, 153. (c) While a carrier is required to furnish refrigeration, it may exact fair compensation for that service, and what is fair must be determined with respect to its service as a whole. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 322. (d) In determining the reasonable- ness of a refrigeration charge which the shipper who has the benefit of re- frigeration should pay, nothing should be added by reason of the fact that a regular refrigerator car is used which is more expensive than the ordinary box car, because this fact has been taken into consideration in determining the rate. Arlington Heights Fruit Ex- change V. S. P. Co., 20 I. C. C. 106, 108. (e) Oranges and lemons picked early in the season can be sent through under ventilation in an ordinary box car, while those picked later must be shipped under ice. HELD, that in de- termining the additional charge which the shipper who requires the refrigera- tion should pay in addition to the amount exacted from the shipper who does not receive refrigeration, the cost of the additional haul on the ice should be charged against the refrigerated shipment, otherwise the grower who REFRIGERATION, §4 (f) — (i) 709 ft picks his oranges early in the season, when they can be sent through under ventilation, will be compelled to con- tribute to th€ expense of transporting the fruit of his neighbor who does not market his crop until later. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 109. (f) Complainant shipped oranges and lemons from California east. After loading the car is taken to some gath- ering point, either San Bernardino, on the Santa Fe R. R., or Colton, on the Southern Pacific R. R. The refrigera- tion charges were $60 to the Missouri River, $62.50 to Chicago and similar points, $72.50 to Buffalo and Pittsburgh, $75 to New York and $77.50 to Boston. The Chicago rate was considered as a test of the others. HELD, that in fix- ing the refrigeration charge the elements to be considered are the cost of the ice, cost of repairs to bunkers, expense of hauling the ice, the element of risk assumed in the rendering of the service, and a fair profit on the transaction. Ad- judged by these considerations, the re- frigeration charges are not excessive. Ar- lington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 111. (g) Complainant attacked refrigeration rates on strawberries shipped from Nor- folk and Olny, Va., and Marion and Pittsville, Md., to Boston. From Vir- ginia points the carload rate on 32-quart crates, minimum 800 crates, was 18c per crate, yielding a per car revenue of $54; on 48-quart crates, minimum 200 crates, rate per crate 27c, revenue per car $54; 64-quart crates, minimum 160 crates, rate per crate 34c, revenue per car $54.40. The rates from Maryland points, a haul a hundred miles less yielded a revenue of approximately $6 a car less, the same minimum being ap- plied and the rate per crate for the 32- quart crates being 2c less; for the 48- quart crate 3c less; and for the 60-quart crate. 4c less, than from the Virginia points. Since 1905 the rates from these points had been gradually reduced. HELD, that the rate from Norfolk on the first type of crate should not exceed 16c, on the second type 24c, and on the third 30c; the rates from the other points be- ing made from Ic to 2c lower respectively; and in view of the gradual and material concessions the defendants have made in the rates from time to time they must be presumed to have acted in good faith in the exercise of their judgment. Repara- tion denied. Sweeney, Lynes & Co. v. N. Y. P. & N. R. R. Co., 20 I. C. C. 600. (h) Moving citrus fruits under refrig- eration is more expensive than under ventilation. Arlington Heights Fruit Ex- change V. S. P. Co., 19 I. C. C. 148, 154. (i) Complainant asparagus growers in the Charleston district, S. C, attacked the rate of 90c per crate of 24 bunches, weigh- ing 65 lbs., to Boston and of 65c per crate to Washington, Baltimore, Philadel- phia and New York. The refrigeration charges were 21c per crate on a mini- mum carload of 230 crates and 15c on a minimum of 325 crates to New York and the other cities named except Boston, and to Boston were 24i^c and IIV2C per crate, respectively, for the same mini- mum carloads. Complainants alleged un- just discrimination against small shippers in that defendants refused to furnish re- frigeration for less-than-carload lots. The average net return to growers of aspara- gus for 1908 and 1909 was about $4.50 per crate, exclusive of transportation and refrigeration charges and commissions. Conflicting evidence indicated that the gross selling price at New York ranged from about $6 to $8 per crate. The as- paragus grown around Charleston was transported by boats to the vegetable wharves in Charleston of defendants Southern Ry. and Atlantic Coast Line. It comprised one-third of all vegetable traffic moving over the wharves. De- fendants unloaded the vegetables from the boats to the wharves. The refriger- ating company loaded them into the car.^. The traffic was forwarded in expedited trains of light tonnage that were given preference over all other trains except passenger trains. While defendants formerly granted refrigeration on less- than-carload shipments, the evidence in- dicated that to do so under the rates at- tacked would result in loss to both the railroads and the refrigeration companies. The practice at other producing points was to consolidate small shipments In carloads. The minima under the rates com- plained of could be easily loaded. The charge for refrigeration from Charleston to New York was over $48 per car of 21,- 125 lbs., when 325 crates were loaded. In 1907 on business over the A. C. L., the profit from refrigeration was $4.06 and in 1906, $3.36 a car, which profit accrued entirely to the refrigeration company and not to the carriers. In Florida Fruit, 710 REFRIGERATION, §4 (j)— §7 (a) etc., Ass'n v. A. C. L. R. R. Co., 14 I. C. C. 467, the Commission found that re- frigeration charges of $70 per car of 21,- 400 lbs, on fruit and vegetables from Florida and northern points were not un- reasonable. The 65c rate complained of to New York had been in effect since 1903. From 1894 to 1899 the rate was 85c, and from 1900 to 1902, 80c. Some 7,000 cars of vegetables per year were shipped from the Charleston district. On account of the absence of refrigeration by water lines and the longer time re- quired to get to market, the rates com- plained of were but slightly influenced by water competition. On asparagus un- der the rates attacked the earnings via the Atlantic Coast Line for the year 1908 averaged about $198 per car. Defendants' earnings on lettuce from Charleston to New York were about $156 per car. In the Florida Fruit, etc., Ass'n case, 14 I, C. C. 467, a rate on vegetables of 43c per crate of 50 lbs. from Florida base points to New York was held to be reasonable, which rate did not, however, include the gathering charge or the rates up to the base points. The average loading of vegetables was found in that case to be 17,600 lbs. and the per car earnings, $150. Jacksonville is 1,000 miles and Charles- ton 740 miles from New York. A rate of 60c per crate from Charleston via the Atlantic Coast Line to New York would yield per car earnings of $180 and one of 55c, $165. The losses to the carriers from damage and deterioration of as- paragus were heavy. HELD, that in view of the cost of the service, comparisons with rates in other localities, and former decisions of the Commission, the refrig- eration charges complained of were not shown to be unreasonable or to discrim- inate unjustly against the shippers of less-than-carload lots; but that the rates attacked were unreasonable to the extent that they exceeded 60c, Charleston to New York, 58c to Philadelphia, 56c to Baltimore and Washington, and 70c to Boston. No reparation to be awarded on past shipments. Asparagus Growers Ass'n V. A. C. L. R. R. Co., 17 I. C. C. 423, 427, 429. (j) Non-refrigerated freight should be hauled at something less than refriger- ated products. Ozark Fruit Growers' Ass'n V. St. L. S. F. R. R. Co., 16 I. C. C. 106, 115. (k) Refrigeration charges on ship- ments of strawberries and peaches from the Ozark fruit country to Denver, Kan- sas City, Omaha, St. Louis and Chicago as representative points, are considered, and, in view of the cost of ice placed in bunkers and the service of icing and re- Icing and charge for like service in other sections, are held not to be unreasonable. Similar questions involved in Ozark Fruit Growers' Ass'n v. St. L. & S. F. R. R. Co., IG I. C. C. 106. Ozark Fruit Growers' Ass'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 153. (1) On carloads of oranges from St. Petersburg, Fla., to Atlanta, Ga., refrig eration charges of $45.00 per car were collected. Defendants had no charge in their tariffs between these points but shortly after shipments moved published a rate of $35.00, and offered to make rep- aration on that basis. HELD, the rate charged was unreasonable. Reparation awarded on the basis of $35.00. Fain & Stamps V. A. C. L. R. R. Co., 13 I. C. C. 529, 530. IV. TARIFFS AND PUBLICATION. §5. Obligation to File. (a) Where a carrier's tariff makes no provision for refrigeration charges and the defendant collects an excessive charge, the Commission has no authority to authorize the return of the whole pay- ment but only of the excess above a rea- sonable charge. (Cockrell, Comm'r, dis- senting.) Memphis Freight Bureau v. K. C. S. Ry. Co., 17 I. C. C. 90, 92. (b) The practice of a carrier in charg- 'ng for re-icing fish in transit where there is no tariff provision therefor is unlawful. Bannon v. Southern Express Co., 13 I. C. C. 516, 520. §6. Construction in General. See Classification, §12 (a), §15 (c). V. WEIGHT. §7. Minimums. (a) Complainants attacked the mini- mum weight on peaches from Georgia to markets east of the Mississippi and north of the Ohio and Potomac rivers in refrig- erator cars, of 22,500 lbs., which com- pelled complainants to load peach crates five tiers high. HELD, that the ordinary refrigeration method will not perfectly cool the two top tiers, because Georgia peaches are picked and packed in very hot weather and moved through hot regions of the country; that the proper REFRIGERATION, §7 (b)— RELEASED RATES, §3 (a) 711 method of shipping these peaches would be to precool the crates before loading into the car; that comparisons cannot be made with the transportation of Califor- nia peaches (these peaches being cooled bj exposure to the cool night air or in precooling stations, and subject to a cool mountain haul shortly after moving), nor in the northern states where there is a short haul. Complaint dismissed. Georgia Fruit Exchange v. S. Ry. Co., 20 I. C. C. 623. (b) The minimum weight should b« the same for refrigeration and transpor- tation charges. Ozark Fruit Growers' Ass'n V. St. L. & S. F. R. R. Co., 16 I. C. C. 106, 108. REGROUPING OF TERRITORY. See Differentials, §7 (d). RELATIVE RATES. See Advanced Rates, §15; Compara*- tive Rates; Differentials, §2; Equal- ization of Rates, §2 (o), (p), (q), (r), (s), (t), (u), (V),' (w), §8 (k). (I), III; Evidence, §4 (a), §13. §20 (g), §28. §31, §65: Interstate Com- merce Commission, §1 (qq) ; Lono and Short HsuK. sin (sg\- p-^nr.f' lire Before Commission, §2 (k), §16 (e); Reasonableness of Rates, §2 (sss), (tt). §10 (b), §16 (r), §28, §47 (a), §66 (c), §76 (a), §105: Repara- tion, §16 (ssss), (wwww); Through Routes and Joint Rates, §8, §15 (oooo). RELEASED RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. CONSTRUCTION AND APPLICA- TION. §2. Duty to inform shipper. §3. Intention to use. III. LEGALITY. §4. In general. IV. REASONABLENESS. §5. In general. CROSS REFERENCES. See Loss and Damage, §9; Bills of Lading, IV. I. CONTROL AND REGULATION. See Interstate Commerce, §4 (o), (w). §1. Jurisdiction of Commission. (a) It is doubtful whether the Com- mission has power to require carriers to publish a rate on burnt cotton released to a valuation of 5c a lb., such rate to be lower than on other cotton. Lesser v. Ga. R. R., 18 L C. C 478, 480. 11. CONSTRUCTION AND APPLICA- TION. See Tariffs, §7 (ff). §2. Duty to Inform Shipper. See Routing and IVIisrouting, §3 (g) ; Tariffs, §7 (hhhh). (a) The quotation of a released rate should be accompanied with notice of its nature. Southern Cotton Oil Co. v. L. & N. R. R. Co., 18 I. C. C. 180. (b) On cotton linters in carloads from Montgomery, Ala., to Minneapolis, charges were collected at a combination rate of 81c, made up of 48c, Montgom- ery to Evansville, plus 33c thence to destination. Defendant quoted a rate of 74c to complainant, which was the combination rate through Evansville when released to a valuation of 2c a lb. The defendant omitted to advise complainant that the rate was so lim- ited and the bills of lading tendered by complainant therefore contained no release clause signed by complainant. HELD, under Administrative Ruling of November 9, 1909, defendant owed the duty of informing complainant and secur- ing its endorsement on the bills of lading of the released valuation clause. Repara- tion awarded on the basis of 74c. The case was not one where the shipper was obliged to pay the legal rate even though an erroneous rate was quoted. Southern Cotton Oil Co. v. L. & N. R. R., 18 L C. C. 180, 181. (c) Defendants' rates on cotton lint- ers from Meridian, Miss., to New Or- leans was 30c per 100 lbs., value lim- ited to 2c per lb., when not so limited the rate was 46c, said rate being ap- plicable to cotton. Complainant asked defendant's agent for the lowest rate and was informed that it was 46c. The value of the linters shipped was about 2c per lb. It was not intended that linters should be shipped at the 46c rate applying to cotton but said rate was instituted to prevent the shipment of cotton as cotton linters. Complainant in ignorance of the lower rate shipped at the 46c rate. HELD, he was entitled to damages on the basis of the lower rate. Salomon Bros. Co. V. N. O. & N. E. R. R. Co., 15 L C. C. 332, 333. §3. Intention to Use. (a) One I^ng shipped from El Paso, Tex., to Bakersfleld, Cal., 692 712 RELEASED RATES, §3 (b)— §4 (c) head of cattle. At the time of execu- tion of the live stock contract the ship- per and the agent of the initial line intended that the live stock should be shipped at a released valuation of $10 per head, but through inadvertance on the part of the agent and shipper the released valuation of $10 per head was not specified in the contract. The cattle were shipped under valuation of $30 per head on account of this over- sight. Complainant paid the excess in the rate. In the live stock contract the correct lower rate of $107 per car was inserted but the printed liability of $30 for each cow was not changed. HELD, in view of the fact it was the intention to write the released valua- tion of $10 per head on the printed contract in place of the value of $30 printed thereon as shown by the in- sertion in the printed contract of the rate applicable only on such released valua- tion, the inadvertence of the car- rier and the shipper should not oper- ate to deprive complainant of the speci- fied tariff rate. Reparation awarded. Miller & Lux v. S. P. Co., 20 I. C. C 129. (b) Complainant did not sign bill of lading as required by tariff, although lower rate was inserted by carrier's agent. Reparation awarded. Robinson Clay Product Co. v. B. & O. R. R. Co., Unrep. Op. 250. (c) Where rates were based upon de- clared valuation and the shipper failed to so declare, reparation declined on basis of invoice presented by consignee. Dueber Watch Case Mfg. Co. v. St. L. & S. F. R. R. Co., Unrep. Op. 396. Mi. LEGALITY. §4. In General. (a) Section 20 of the Hepburn Act provides that the carrier shall be liable "for any loss, damage or injury to such property caused by it . . . and no contract, receipt, rule or regulation shall exempt such common carrier, rail- road or transportation company from the liability hereby imposed." HELD, 1. If a rate is conditioned upon the shipper's assuming the risk of loss due to causes beyond the carrier's con- trol, the condition is valid. 2. If a rate is conditioned upon the shipper's assuming the entire risk of loss, the condition is void as against loss due to the carrier's negligence or other misconduct. 3. If a rate is conditioned upon the shipper's agreeing that the carrier's liability shall not exceed a certain specified value a. The stipulation is valid when loss occurs through causes beyond the car- rier's control. b. The stipulation is valid, even when the loss is due to the carrier's negligence, if the shipper has himself declared the value, expressly or by implication, the carrier accepting the same in good faith as the real value, and the rate of freight being fixed in accordance therewith. c. The stipulation is void as against loss due to the carrier's negligence or other misconduct if the specified amount does not purport to be an agreed valuation, but has been fixed arbitrarily by the carrier without refer- ence to the real value. d. The stipulation is void as against loss due to the carrier's negligence or other misconduct if the specified amount, while purporting ■ to be an agreed valuation, is in fact purely fic- titious and represents an attempt to limit the carrier's liability to an arbi- trary amount. In Re Released Rates, 13 I. C. C. 550, 561. (b) It cannot be expected that ship- pers will always be familiar with the terms of the carrier's rate schedule and bills of lading or that they will invariably know their legal rights. Practically they often have no choice but to accept the terms that are offered them. This being so, it is essential that the carrier's dealing with the shipper should be free from the sus- picion of unfairness or imposition of any description. The provisions of tar- iffs and bills of lading should be fair and unambiguous and free from sus- picion of illegality. The shipper should be allowed his choice of rates which leave the carrier's liability unlimited as at common law, or lower rates based upon such limited liability as the law sanctions. In Re Released Rates, 13 I. C. C. 550, 562. (c) In tariffs concerning the fixing of rates on the basis of limited liability the words "value limited to " are misleading. The phrase, "Agreed to RELEASED RATES, §4 (d)— REPARATION, §1 (b) 713 be of the value of ," is less ob- jectionable. It is fixed with ref- erence to the real value of the property, and because of an agreement that the amount of recovery shall be limited to an arbitrary specified amount. In Re Released Rates, 13 I. C. C. 560, 564. (d) A tariff rule stipulating that the carrier shall incur no liability for losses "from any cause on property carried on open cars," is improper, such a stip- ulation being legally unenforceable. In Re Released Rates, 13 I. C. C. 560, 565. (e) A tariff providing that where shipments are not made under an agree- ment for limited liability they shall be subject to an additional charge of 20 per cent, is unlawful, said increase being unreasonable and out of all pro- portion to the larger risk involved. In Re Released Rates, 13 I. C. C. 560, 565. IV. REASONABLENESS. §5. In General. See Evidence, §12 (7) (a). (a) Defendants' published rates on marble from Long Island City, N. Y., to Shipman, Va., were 18c per 100 lbs. when released to a value of 20c per cubic foot, and 22c per 100 lbs. when released to a value of 40c per cu- bic foot. Unless released the first class rate of 54c was, as in the ship- ment in question, applied. It appeared that the fair average value of cut marble to be used for building pur- poses was from $3 to $5 per cubic foot. HELD, the classification requiring a release to 40c per cubic foot in order to entitle complainant to a better than the first-class rate was unreason- able and complainant was entitled to reparation on the basis of the 22c rate. Cohen & Co. v. S. Ry. Co., 16 I. C. C. 177, 178. REPARATION. I. JURISDICTION OF COMMISSION. §1. Necessity of primary action by Commission. §2. Necessity and effect of find- ing of unreasonableness. §3. Power to award tort dam- ages. II. RIGHT TO RECOVER. §4. Necessity of protest. §5. Necessity of first paying tariff rate, §6. Parties entitled to recover. §7. Statute of limitations. III. CIRCUMSTANCES DETERMINING RIGHT. §8. Erroneous publication. §9. Failure to post tariff. §10. Laches. §11. Rate via competing line. §12. Readjustment of rates. §13. Res judicata. §14. Special rate. §15. Unpublished charges. §16. Voluntary or subsequent re- duction. §17. Willingness of carrier to pay. IV. LIABILITY FOR REPARATION. §18. Measure of reparation. §19. Parties to make refund. §20. Release of liability. V. PROCEDURE. §21. Foroial proceedings. §22. Informal proceedings. §23. Court pleadings. CROSS REFERENCES. See Advanced Rates, VII; Allow- ances, VI; Claims; Interstate Com- merce Commission, VI ; Passenger Fares and Facilities, IV; Precool- ing, IV; Special Contracts, §4; Weights and Weighing, V. I. JURISDICTION OF COMMISSION. See Interstate Commerce Commis- sion; Reasonableness of Rates, §1 (r), (u), (V). §1. Necessity of Primary Action by Com- mission. See Cars and Car Supply, §6 (a); Courts, §11 (a). (a) An action cannot be maintained against a carrier in a state court under sections 9 and 22 of the Act to recover reparation for unjust discrimination in charging a published rate of 50c higher per ton for coal loaded from wagons than the published rate when the coal is loaded from tipples, where no prior ap- plication has been made to the Commis- sion for relief. Robinson v. B. & O. R. R. Co., 222 U. S. 506, 509; 32 Sup. Ct. 114; 5-Q L. ed. 114. (b) Where the Commission has found that a particular rate is unreasonable, a shipper seeking reparation, who was not a party to the complaint before the Com- mission, cannot bring suit in a United States Circuit Court under section 9 of 714 REPARATION, §1 (c) — (q) the Act, but must apply to the Commis- Bion for reparation, the remedy provided in section 16 of the Act being exclusive% Phillips Co. V. G. T. W. Ry. Co., 195 Fed. 12, 18. (c) The Interstate Commerce Commis- sion has power to determine the reason- ableness of rates and likewise is author- ized to award reparation, and in both re- spects, where the reparation arises from a readjustment of rates, its conclusions, being administrative, are final and con elusive, unless the Commission has in some particular matter in the contro- versy exceeded its prescribed functions. Fidelity Lumber Co. v. G. N. Ry. Co., 193 Fed. 924, 928. (d) A shipper cannot maintain an action at law in the courts for excessive and unreasonable freight charges ex- acted on interstate shipments, where the rates charged were those which had been duly fixed by the carrier according to the Act and had not been found to be un- reasonable by the Intel^state Commerce Commission. American Union Coal Co. V. Penn. R. R. Co., 159 Fed. 278, 280. (e) The Commission can award dam- ages only for a violation of the Act. Buf- falo Hardwood Lumber Co. v. B. & O. S. W. R. R. Co., 21 I. C. C. 536, 538; Good- man Mfg. Co. V. C. B. & Q. R. R Co, 21 I. C. C. 583, 584. (f) Damages directly resulting from a violation of the Act and measurable by a difference in rates may be awarded by the Commission. Bowles & McCandless V. L. & N. R, R. Co., 19 I. C. C. 563, 664. (g) The Act affords the shipper a means of recovering excessive charges on shipments made by him in the past under rates that were unjust and un- reasonable. Arkansas Fuel Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 95. (h) The Commission may award damages on past shipments if proof shows the rates under which shipments moved were excessive. Arkansas Fuel Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 95, 98. (i) Where the Commission finds the rate exacted to have been unreasonable it may award as reparation the differ- ence between that rate and that which is reasonable, notwithstanding the for- mer was the rate duly established by the carrier for the time being. Allen & Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 293, 295. (j) The Act confers authority on the Commission to investigate complaints alleging unreasonable charges, and, after full hearing on formal complaint, to condemn such charges as are found to have been unreasonable and to award reparation thereunder. Swift & Co. V. C. & A. R. R. Co., 16 I. C. C. 426, 428. (k) The Commission is authorized to award reparation to any person or persons found to be damaged by any common carrier subject to the provi- sions of the Act, for a violation thereof. Laning-Harris Coal & Grain Co. v. St. L. & S. F. Ry. Co., 15 I. C. C. 37, 39. (1) Section 15 of the Act clearly con- templates awards of money damages to be made by the Commission. Washer Grain Co. v. M. P. Ry. Co., 15 I. C. C. 147, 153. (m) Where the Commission finds the published rate exacted to have been unreasonable, it has jurisdiction to award reparation by the difference between what was exacted and what should have been reasonably paid. American Refractories Co. v. E. J. & E. R. R. Co., 15 I. C. C. 480, 480. (n) Where the Commission has found the rate exacted to be unreasonable, it has jurisdiction to award reparation. Farlev & Loetscher Mfg. Co. v. C. M. & St.^ P. Ry. Co., 15 I. C. C. 602, 603. (o) The jurisdiction and authority of the Commission is well settled in respect to its power to award dam- ages where the published rate has been observed by the carrier, but such rate has been declared unreasonable. To hold that the publication of rates is conclusive of their reasonableness would go far toward defeating one of the leading purposes of the Act. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 204. (p) Jurisdiction has been given this Commission by the Act to award as reparation the difference between a published rate and what is found would have been a reasonable rate, Flint cc Walling I\Ifg. Co. v. L. S. & M. S. Ry. Co., 14 L C. C. 336, 337. (q) Defendant following an informal ruling of the Commission in a similar case made reparation to complainant REPARATION, §1 (r)— §2 (g) 715 for a rate charged on snapped corn of 125 per cent of the shelled-corn rate and did so without applying to the Commission. HELD, the Commission disapproves of the assumption of the defendant in applying to the adjustment of the case in question the authority granted it in an informal case, which authority was in terms limited to that particular case. Ocheltree Grain Co. V. C. R. I. & P. Ry. Co., 13 I. C. C. 238, 239. (r) A complainant is not precluded from seeking reparation before the Commission by reason of the fact that he instituted suit before a court not having jurisdiction and dismissed suit without prejudice before the filing of his complaint with the Commission. Baer Brothers Mercantile Co. v. M. P. Ry. Co., 13 I. C. C. 329, 340. (s) Where the Commission has no jurisdiction over the subject matter of a complaint, jurisdiction to award repa- ration under the same cannot be con- ferred by stipulation of the parties. La Salle Bureau County R. R. Co. v. C. & N. W. R. R. Co., 13 1. C. C. 610, 613. §2. Necessity of and Effect of Finding of Unreasonableness. See Evidence, §1 (h), (k), §64 (a); Reasonableness of Rates, §2 (pp), §7 (b). (a) The question whether rates are unreasonable or discriminatory is vitally related to all questions of reparation for their exaction, Phillips Co. v. G. T. W. Ry. Co., 195 Fed. 12, 18. (b) Where the Commission has found a rate unreasonable, it cannot deny reparation on shipments made prior to the filing of the complaint but within the limitation period on the ground that the shipper was guilty of laches in bringing the complaint while at the same time granting reparation on ship- ments made subsequent to the filing of the complaint. Russe & Burgess v. I, C. C, 193 Fed. 678, 680; Thompson Lumber Co. v. I. C. C, 193 Fed. 682, 683. (c) The Commission has no right to demand of the shipper, as a prerequi- site to an order of reparation, "con- clusive proof" of the unreasonableness in the past of the rate complained of, a preponderance of the credible evi- dence being sufficient. Thompson Lum- ber Co. V. L C. C, 193 Fed. 682, 683. (d) The Commission has authority to award reparation to a shipper from whom has been exacted a rate in ex- cess of the lawfully published schedule rate, and this without a determination on its part that the rate exacted is un- reasonable. Chicago, B. & Q. R. R. Co. V. Feintuch, 191 Fed. 482, 486. (e) Plaintiff sued at law in a United States Court and offered in evidence the report of the Interstate Commerce Commission in 19 I. C. C. 611. Said report found the rate on hardwood lumber excessive and ordered a reduc- tion but did not specifically find that plaintiff paid the excessive rate. HELD, a demurrer to the declaration should be sustained on the ground that it failed to state a cause of action. Dar- nell-Taenzer Lumber Co. v. S. P. Co., 190 Fed. 659, 664. (f) As provided in the tariffs of the defendants charges on certain shipments of grain products were assessed at the rates in effect when the shipments moved from the milling point and not at the rates in effect when the grain moved from the point of origin. Com- plainant paid on its shipments precisely the same basis of rates as did its competitors. HELD, that an award of reparation in its favor would put it on a preferred basis as compared with its competitors and in its result work a discrimination against them. Repara- tion denied. Liberty Mills v. L. & N. R. R. Co., 23 L C. C. 182, 186. (g) In Florida Fruit & Vegetable Shippers' Protective Ass'n v. A. C. L. R. R. Co., 14 I. C. C. 476, decided June 25, 1908, the Commission reduced the rates for the transportation of oranges, grape fruit, pineapples, etc., from producing points in Florida to northeastern cities. In the discussion of this case the Commission expressed the' opinion that the rate from Florida itself to the Ohio River ought to be somewhat reduced, but because the proper carriers were not parties, and the complaint contained no such prayer, did not enter a formal order to that effect. In a subsequent proceeding by the same complainant, 17 I. C. C. 552, the rates from Florida producing points to destinations in Central Freight Asso- ciation territory were reduced. Com- plainant, not a party to the original 716 REPARATION, §2 (h)— (m) proceedings, filed a petition August 28, 1911, seeking reparation for shipments made prior to the effective date of the Commission's order in the second case. HELD, a reduction of the rates pf the carriers does not necessarily imply that reparation will be awarded in all such cases; under conference ruling 206 (d) reparation is denied. Byrnes v. A. C. L. R. R. Co., 23 I. C C. 251. (h) Complainant attacked the rate of $2.53 per ton on limestone shipped between Nov. 3 and Dec. 22, 1910, from Martinsburg, W. Va., to Portsmouth, O., a distance of 407 miles. At the request of complainant defendants filed a tariff effective Dec. 23, 1910, naming a rate of $1.85 per gross ton, which rate is still effective. The B. & O. R. R. maintained a rate of 65c per gross ton from Martinsburg to Munhall, Pa., a point near Pittsburg, a distance of 221 miles, and $1.40 per gross ton to Cleveland, 389 miles. But these rates, it appeared, were put in to meet com- petition with the Penn. R. R. on lime- stone from the Tyrone district, 130 miles east of Pittsburg. It appeared that the cost of the stone at Martins- burg was only 65c per ton. The rate of $2.53 produced a revenue of 6.2 mills per ton mile and that of $1.85, 4 mills per gross ton, and 4.5 mills per net ton. HELD, the reduction in the rate from Martinsburg to Portsmouth was voluntarily made by defendants for the sole purpose of stimulating movement. Complainant now has the benefit of the lower rate, and reparation could not be awarded on shipments that moved •prior to the date when the lower rate became effective in the absence of a showing that the rate charged was ex- cessive or unjustly discriminatory, of which fact no showing has been made. Complaint dismissed. Portsmouth Steel Co. V. B. & O. R. R. Co., 23 I. C. C. 510. (i) The fact that a rate is volun- tarily reduced by a carrier or is reduced by order of the Commission does not of itself entitle shippers to reparation. Carter White Lead Co. v. N. & W. Ry. Co., 21 I. C. C. 41, 44. (j) The Commission reduced the rates on plate glass, C. L. Reparation was asked in connection with all ship- ments which moved within the period of limitation. HELD, the Commission is not impressed by the argument that substantial justice requires an award of damages. An award of damages in connection with past shipments does not follow as a matter of course on finding that an existing rate is unrea- sonable and a corresponding reduction of the rate for the future. Memphis Freight Bureau v. St. L. & S. F. R. R. Co., 21 I. C. C. 113, 118. (k) Complainants asked for repara- tion for rates on cotton seed products from points in Oklahoma to practically all consuming territories. It appeared that some of the rates between many of the points involved were formerly higher than at present, but were re- duced from time to time as the density of traffic increased with that of popula- tion and business development in a new and growing community. HELD, it would be a hard rule to assume a rate now condemned as unreasonable to have been so for a period of two years as a basis for the payment of money; that the awarding of reparation by no means necessarily follows the re- duction of the rate whether by action of the carriers or by order of the Commis- sion; that when a rate is advanced and the increased rate is condemned by the amount of the advance a more satis- factory basis for an award of reparation is afforded than in a case where such changes as have been made, have been in the nature of reductions. Repara- tion denied. Anadarko Cotton Oil Co. v. A. T. & S. F. Ry. Co., 20 I. C. C. 43, 50. (1) When a rate is advanced and the increased rate is condemned by the amount of the advance a much more satisfactory basis for an award of repa- ration is afforded than in the present case, where so far as changes have occurred they have been at least for the most part reductions in a territory where changes in conditions have taken place which contribute in greater or less degree to a present showing of unreasonableness in existing rates. Ana- darko Cotton Oil Co. V. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 50. (m) It would be a manifestly harsh rule that would assume a rate now condemned as unreasonable to have been so for a period of two years, or that of the statute of limitations in the past as a basis for the payment of money by the carriers on past ship- REPARATION, §2 (n)— (oo) 717 ments, especially when no complaint had been made against them in that period. The law establishes no such presumption nor is it a necessary sequence that the rate has been un- reasonable for any period in the past. Neither does it seem that the bona fide action of the carriers in the neces- sary exercise of their judgment within reasonable limits should always be at their peril, of liability for reparation for the difference between rates initiated upon their judgment and later changed upon the judgment of the Commission. The awarding of reparation by no means necessarily follows the reduction of a rate whether by the voluntary ac- tion of the carriers or by order of the Commission. Whatever may be the nature of the facts, circumstances and conditions appearing in a particular case where reparation is involved, whether on account of excessive rates or unjust discrimination, there must be that degree of certainty and satisfac- tory conviction in the mind and judg- ment of the Commission as would be deemed necessary under the well established principles of law as a basis for a judgment in court. Anadarko Cotton Oil Co. V. A. T. & S. F. R. R. Co., 20 I. C. C. 43, 50, 51. (n) Complainants shipped a carload of coiled elm hoops from Mt. Clemens, Mich., to Rip'plemead, Va., 26c per 100 lbs. being charged. Shipment moved via the Grand Trunk Western R. R. and connect- ing carriers. The N. & W. R. R. was the delivering carrier. The tariff pro- vided to Ripplemead an arbitrary of 5c over Norfolk, contingent upon ship- ments to Norfolk being made under joint through rates. A specific rate from Mt. Clemens to Norfolk was not published until about three months after the shipment when a rate of 161/^c was made effective. Reparation was demanded on the basis of the resulting Ripplemead rate of 21i^c. No evidence was put in as to the reason- ableness of the rate. HELD, the arbi- trary of 5c could not be applied until the specific rate was put in even though the carriers intended it to apply to this shipment. The rate charged having been the correct tariff rate the Commission cannot issue an order for reparation unless based upon affirmative evidence that the rate complained of is unreasonable or unjustly discrimina- tory of which there is no evidence in this case. Reparation denied. Noble V. G. T. W. R. R. Co., 20 I. C. C. 70. (o) Complainants shipped from De- pue, 111., to Hopatcong, N. J., sulphuric acid upon which the fifth-class rate of 33c per 100 lbs. was charged. It also shipped from the same point of origin to Em- porium, Pa., the same commodity on which was charged the fifth-class rate of 25c per 100 lbs. Shortly before the shipment the carriers other than the C. M. & St. P. Ry. Co., a defendant, established rates of 29i/^c to Hopatcong and 221/^c to Emporium and' the C. M. & St. P. R. R. stated that the failure on its part to establish similar rates was due to a clerical error. Immedi- ately after the shipment the C. M. & St. P. R. R. equalized its rates to the lower basis, kept them in effect one month and then restored the fifth- class rate. Complainant did not at- tack the unreasonableness of the rate and especially disclaimed any intention of attacking the reasonableness of the present rates (which were the same as the shipment moved under). HELD, an award of reparation could be based only on a finding that the rates charged were unreasonable for a very brief period prior to and immediately after which the carriers maintained the class rate, and the Commission is not justified under the statute in basing a finding of unreasonableness merely on a temporary adjustment of the char- acter involved in this proceeding. Rep- aration denied. Dupont De Nemours Powder Co. v. D. & N. R. R. Co., 20 L C. C. 83. (oo) Complainant shipped April 7, 1908, from Orange, Tex., to Eunice, La., mixed groceries, C. L. On this shipment it was quoted and paid a rate of 10c per 100 lbs. But this rate did not be- come effective until April 14, and sub- sequently the full legal rate of 55c per 100 lbs. was paid by complainant. De- fendants joined with complainants in a stipulation to make reparation on the basis of 10c. It appeared that the rate before the shipment moved and about a month subsequent was 55c. The present rate by one line is 55c and by the other line 70c. The distance is 105 miles. HELD, it is apparent that the rate of 10c was abnormal and made for some special purpose. It cannot be found upon the record that a rate of 10c was at that time, or is now, a just and reasonable 718 REPARATION, §2 (p) — (xy) rate to be charged for this service. The Commission cannot award reparation un- less it is prepared to find that the rate upon the basis of which reparation is given was a just and reasonable rate to be applied at the time the shipment moved. To award reparation in favor of complainant might amount to a gross discrimination against other shippers. Reparation denied. Orange Grocery Co. V. M. L. & T. R. R. & S. S. Co., 19 I. C. C. 502. (p) If the rate exacted is unrea- sonable, carriers had no right to charge It and have no right to proceeds of such charges above reasonable rate. Commercial Club of Omaha v. A. T. & S. Ry. Co., 19 I. C. C. 419, 421. (q) Pursuant to the decision in 13 I. C. C. 657, holding the rate of 12c on hardwood lumber from Memphis, Tenn., to New Orleans, La., unreasonable to the extent it exceeded 10c, reparation Is awarded on various shipments made subsequent to the filing of the original complaint, but no reparation is awarded for shipments prior to that date, in the absence of proof that the 12c rate was unreasonable prior to such date. Thomp- son Lumber Co. v. I. C. R. R. Co., 18 I. C. C. 83, 84. Disapproved, 193 Fed. 682, on the ground that the shipper, to be entitled to reparation, was not re- quired to prove the rate prior to the date of the complaint unreasonable by con- clusive proof, but only by a preponder- ance of the evidence. (r) With respect to claims of repa- ration the fact that rates are found unreasonable today does not of itself prove that they have been unreasonable in the past, especially where the road runs through a region with a develop- ing traffic and changing conditions. Acme Cement- Plaster Co. v. C. & N. W. Ry. Co., 18 I. C. C. 105, 107. (s) Reparation in this case awarded only from the date of filing of complaint in another case, in which case repara- tion was awarded only from filing of the complaint. Kindelon v. S. P. Co., 17 I. C. C. 251, 254. (t) An order for reparation for an unreasonable rate can be predicated only upon an affirmative finding that the rate exacted was in fact excessive. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 359. (u) The Commission will not award reparation on the basis of a rate that is lower than that which it would pre- scribe as reasonable. Pacific Elevator Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 373. (v) Complainant shipped four car- loads of hay from Hepler, Kan., to St. Louis, Mo., over defendant's line and was charged 19c. Defendant's tar- iff provided that upon reconsignment of shipments from St. Louis territory east of the Mississippi River and south of the Ohio River, the shipper would be entitled to a refund on the basis of a 131/^c rate. The complainant al- leged that his four cars were so re- shipped by a purchaser at St. Louis from the complainant's consignee. De- fendant's answer alleged that the four cars so shipped to the southeast from St. Louis referred to by complainant, did not originate on its line but were shipped to St. Louis over the lines of other carriers from points in Illinois, Iowa and Missouri. Complainant was asked by the Commission to reply to this answer, and by letter stated that he did not deem the facts set forth by de- fendant sufficient to constitute a de- fense. The Commission then by letter asked for a more specific reply and received an answer from complainant expressing his willingness that the case be decided upon the pleadings. HELD, under the pleadings complainant was not entitled to reparation. Rode- haver v. M. K. & T. Ry. Co., 16 I. C. C. 146, 1^7. (w) Where a rate exacted is found to be unreasonable, the Commission will not hesitate to grant reparation on the shipment in question on the ground that the carrier in order to pre- vent unjust discrimination will be com- pelled to make reparation to other shippers. Menefee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. 49, 51. (xy) When the Commission reduces a rate, it does not necessarily follow that it will awari reparation on the basis of the new rate. There is no conclusive presumption that a rate reasonable to-day was reasonable a year before or a day before, since reason- able rates vary from time to time, and some point of division must be found. Where, therefore, rates have been es- tablished and maintained by the car- riers in good faith, especially whcr^ REPARATION, §2 (z)— (hh) 719 they have been long in eff-ect and acquiesced in by shippers without pro- test, the Commission will not award reparation even though the rate is re- duced, unless it clearly appears that the rates paid in the past have been excessive. Penrod Walnut & Veneer Co. V. C. B. & Q. R. R. Co., 15 I. C. C. 826, 328. (z) Under its original complaint, the Commission found the rates on butter and eggs from Granite Falls, Minn., to Chicago unreasonable to the extent that they exceeded those from Pipestone, Minn., a more distant point on the same line. Complainant in the original complaint did not ask for reparation. It filed a petition later demanding repa- ration The evidence indicated that de- fendant's rates to Sioux Falls and other points on the Missouri River were the same and Pipestone was given the Sioux Falls rate, the two points being com- petitive. HELD, complainant should have presented his claim for reparation in the original complaint and reparation should be denied, since a holding that rates are unreasonable at the time of hearing is not equal to a holding that they were thus unreasonable at the time shipments moved. Morse Produce Co. V. C. M. & St. P. Ry. Co., 15 I. C. C. 334, 338. (aa) When the Commission reduces a rate and prescribes what will be the just and reasonable rate or rates to be thereafter observed -in such a case as the maxima to be charged, it does not necessarily follow that for any length of time prior to the date of the opinion reparation will be awarded upon the basis of the rate prescribed to be ob- served thereafter. Morse Produce Co. V. C. M. & St. P. Ry. Co., 15 I. C. C. 334, 338. (bb) The Commission will not award reparation unless the rate exacted is found to be unreasonable, since so to do would result in unjust preferences. American Refractories Co. v. E. J. & E R. R. Co., 15 I. C. C. 480, 481. (cc) The Act authorizes the Com- mission to condemn an unreasonable rate, to prescribe a rate to be applied in lieu thereof, and to award damages under the rate so condemned; but in all proceedings before the Commission both formal and informal the essential prerequisite to any award of damages is the condemnation of a rate, rule or procedure that is made the basis of such award. Pueblo Transportation Ass'n v. S. P. Co., 14 I. C. C. 82, 84. (dd) While the Act requires car- riers to establish, file and publish their rates and commands their strict ob- servance, such publication of rates is not conclusive of their reasonableness, and it is the duty of the Commission to award reparation for duly proven damages to the parties injured by the exaction from them of unreasonable and unjust charges, notwithstanding such charges may be in accordance with the oublished rates. Nicola, Stone & Myers lo. V. L. & N. R. R. Co., 14 I. C. C. 199, 204. (ee) The Commission has no juris- diction to make orders for reparation on account of any alleged excessive rate except when, upon complaint, no- tice to the defendants, and full hear- ing, such rate lias been challenged and found to be unreasonable. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 206. (ff) No orders for reparation will be entered on account of the alleged exaction of excessive charges on ship- ments from points of origin to destina- tions not involved in the former pro- ceedings until the question of the rea- sonableness of the rates shall be de- termined. Nicola, Stone & Myers Co. V. L. & N. R. R. Co., 14 I. C. C. 199, 206. (gg) Complainant was charged 34i^c per 100 lbs. on a mixed carload of cab- bages, potatoes and onions from Green Bay, Wis., to Poplar Bluff, Mo. Prior to the time of shipment complainant had made a number of similar ship- ments between the same points via another carrier at a rate of 27c. This 27c rate was assessed by mistake of the carrier and the published rate was 35 1/2 c. Complainant introduced no evi- dence to show the published rate was unreasonable. HELD, on this showing complainant was not entitled to repara- tion on the basis of the 27c rate. Plat- ten Produce Co. v. C. M. & St. P. Ry. Co., 14 I. C. C. 512, 513. (hh) It does not follow that because a rate is reduced for the future, dam- ages will be allowed in all cases where that rate has been exceeded in the past. Goff-Kirby Coal Co. v. Bessemer & Lake Erie R. R. Co., 13 L C. C. 383, 386. 720 REPARATION, §2 (ii)— §3 (f) (ii) Carriers are not entitled to re- sist an award of reparation for exac- tions made under a rate found to be un- reasonable on the ground that the ship- pers were not themselves damaged, but simply added the excess to the selling price, thereby casting the damage upon the public. Wherever an unlawful and unreasonable rate is exacted the ship- per is entitled to reparation without inquiring beyond the fact itself of the unreasonable exaction. Burgess v. Transcontinental Freight Bureau, 13 I. C. C. 668, 679, '680. (jj) Reparation ordered for an excess charge made because of unreasonable requirements as to marking shipments. Kessler & Co. v. So. Ry. Co., Unrep. Op. 12. (kk) No justification being shown, ad- vances held unreasonable and reparation awarded. Swift & Co. v. C. B. & Q. R. R. Co., Unrep. Op. 516. . §3. Power to Award Tort Damages. See Allowances, §14 (f), (1); Special Contracts, §4 (1) (m). (a) In Hillsdale Coal & Iron Co. v. P. R. R. Co., 19 I. C. C. 356; Jacoby & Co. V. P. R. R. Co., 19 I. C. C. 392, and Bulah Coal Co. v. P. R. R. Co., 20 I. C. C. 52, the Commission found that the defendant had discriminated against the complainants in the distribution of coal cars. Subsequently the United States Circuit Court for the Eastern District of Pennsylvania in Morrisdale Coal Co. V. Penn R. R. Co., 176 Fed. 748, 183 Fed. 929, held that the Com- mission could alone entertain a com- plaint for damages based on such dis- crimination. In order to prevent a mis- carriage of justice and afford an oppor- tunity to secure a final ruling by the courts the Commission awards repara- tion to each complainant based on the difference between the average selling price for the coal at the mine for inter- state markets and the cost of produc- tion during the same period, upon the difference in the number of tons of coal it would have mined and shipped had its proper proportion of cars been furnished, and the tonnage it actually did ship. Hillsdale Coal & Coke Co. v. P. R. R. Co., 23 I. C. C. 186. (b) Depreciation of real estate values and loss of tenants on account of the dis- continuance of a passenger station and train service thereat, are not such dam- ages as are cognizable by the Com- mission. Mattison v. Penn. R. R. Co., 23 I. C. C. 233, 235. (c) On account of unreasonable and discriminatory rates charged for the transportation of anthracite coal from the Wyoming region in Pennsylvania to Perth Amboy, N. J., and in accordance with the conclusions announced in the original proceedings in 21 I. C. C. 129, complain- ant is awarded reparation in the sum of $11,009.33 with interest from Aug. 1, 1901; to additional reparation in the sum of $58,236.45 with interest amounting to $27,750.65 on the individual charges com- prising said sum from the dates of pay- ment thereof to Sept. 1, 1911, together with interest on said sum of $58,236.45 from Sept. 1, 1911; and to additional rep- aration in the sum of $10,813.60 with in- terest amounting to $1,526.53, upon the individual charges comprising said sum from the dates of payment thereof to Sept. 1, 1911, together with interest ou said sum of $10,813.60, from the 1st day of September, 1911. Meeker & Co. v. Le- high Valley R. R. Co., 23 I. C. C. 480.' (d) Complainant shipped by- barge from Brevoort, Miss., to Cincinnati^ O., a cargo of rough oak, gum and cypress lumber. Upon arrival at Cincinnati, it was transferred into 37 cars and charges based on a weight of 1,053,200 lbs. were assessed. Complainant alleged that owing to negligent handling at Cincin- nati the lumber when loaded into the cars was allowed to get wet and absorbed water to the extent of 148,723 lbs. At destination complainant weighed dry 1,000 feet of each kind of lumber shipped, applied such weights to the respective aggregate number of feet in the cars and obtained an estimated dry weight of 904,477 lbs. Its asked reparation for the difference between such estimated dry weight and the billed weight. HELD, the Commission is without authority under the Act to award damages for negligence of the kind here alleged, such matters being within the jurisdiction of the courts. Buffalo Hardwood Lumber Co. V. B. & O. R. R. Co., 21 I. C. C. 536, 538. (e) He who suffers damage by his own fault is not held to suffer damage. National Ass'n of Letter Carriers v. A. T. & S. F. Ry. Co., 20 1. C. C 6, 9. (f) While it might possibly be the right of parties in the exercise of good judgment to resort to the telegraph as a REPARATION, §3 (g)— (p) 721 means of correspondence in a dispute over excessive freight rates, such ex- pense is not justified where the result does not justify the outlay. Schulz Co. V. C. M. & St. P. R. R. Co., 20 I. C. C. 403, 405. (g) Damages due to inability to com- pete in common market can not become the subject of reparation. Sondheimer Co. V. I. C. R. R. Co., 20 I. C. C. 606, 609. (h) Damages such as decline in the market price of a commodity and lost commissions for sale of such commodity due to the negligence of a carrier in not obeying reconsignment instructions are not matters within the jurisdiction of the Commission. Hanley Milling Co. v. Penn- sylvania Co., 19 I. C. C. 475, 476. (i) Reparation awarded for failure to comply with reconsignment instructions; but the decline in the market price of a commodity and commissions for its sale are not within the Commission's juris- diction. Hanley Milling Co. v. P. Co., 19 I. C. C. 475, 476. (j) No reparation can be awarded by the Commission for damages in a matter of car supply caused by the cancellation of a rate on the strength of which a con- tract was made. American Creosote Works v. I. C. R. R. Co., 18 I. C. C. 212, 214, 215. (k) The Commission has no jurisdic- tion to award damages to a shipper for loss of business and the cancellation of contracts of sale resulting from the granting by a carrier of an unjustly dis- criminatory rate to the shippers compe- titor, and resort must be had to the courts. American Creosote Works v. T. C. R. R. Co., 18 I. C. C. 212, 215, 216. (1) Complainant shipper of wall plas- ter charged its customers 10c each for the sacks in which the plaster was shipped and upon return of the sacks re- funded this 10c charge. Defendants' tar- iffs provided for a rate of one-half fourth class on bags tied up in bundles and properly tagged so as to show the con- signor and consignee. The rate on bags shipped otherwise was fourth class. In practice many bags without identifica- tion tags were returned to complainant and it was unable to determine to which customer credit should be given. Com- plainant sought to recover reparation for the amount of $8 allowed to a customer on 80 bags, which it alleged were prop- erly packed and tagged by the customer and delivered to defendant on the ground that defendants had failed to preserve intact the tags and marks so as to en- able complainant to know to what cus- tomer a particular package of bags was received. HELD, since the claim was for general damages and not for damages measurable by a rate the Commission had no jurisdiction to award the repara- tion asked. Acme Cement Plaster Co. v, Wabash R. R. Co., 18 I. C. C. 557, 558. (m) Reparation is refused for the shrinkage in cattle due to delay in ship- ment caused by washouts on defendant's lines, since the Commission has no jur- isdiction over loss and damage claims not arising from any duty imposed on the carriers by the Act, such as destruc- tion of property from accident, loss by stealing or fire, etc. Carstens Packing Co. v. O. R. R. & Nav. Co., 17 I. C. C. 125, 126, 127. (n) An act of negligence which de- prives the shipper of the enjoyment of an unlawful rate can not be made the basis of a claim for reparation. Folmer & Co. V. G. N. Ry. Co., 15 I. C. C. 33, 36. (o) The Commission has no power either to enforce the specific perform- ance of contractural obligations or to award damages for the breach of such agreements between carriers and ship- pers. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. (p) During February, 1907, complain- ant shipped seven carloads of coal from Marion, 111., consigned to itself at Minne- apolis, the cars reaching there on vari- ous days between March 4th and 18th, 1907. On April 6th, 1907, complainant advised defendant the coal had been sold to the N. P. R. R. and requested delivery to that company. Defendant was In- formed by the N. P. R. R. that it would accept delivery only upon condition that all transportation, switching and demur- rage charges were paid by complainant. Defendant thereupon informed complain- ant of the amount of the freight charges and of the demurrage charges of $1 per day up to April 17th. Complainant paid freight charges but refused to pay any demurrage charges accruing after April 6th. The cars remained on defendant's tracks until May 11th, when they were sold for demurrage charges. Complain- ant sued for damages. HELD, if com- plainant's contention was that demurrage 722 REPARATION, §4 (a)— §5 (b) charges did not .constitute a lawful lien upon the property and defendant's act amounted to an unlawful conversion, ac- tion should have been brought before a court and not before the Commission. Complaint dismissed. MacBride Coal & Coke Co. V. C. St. P. M. & R. Co., 13 I. C. C. 571, 572. II. RIGHT TO RECOVER. §4. Necessity of Protest. See Infra, §16 (g). (a) In a suit in the courts for dam- ages against a carrier for unjust discrim- ination in granting rebates to a compet- ing shipper, protest by plaintiff against the payment of charges assessed on his shipments is not prerequisite to recov- ery. Mitchell Coal & Coke Co. v. Penn. R. R. Co., 181 Fed., 403, 410. (b) In a suit at law for damages against a railroad for discriminating in rates in favor of a competitor, the fail- ure of plaintiff to make payment under protest is not fatal to recovery. Penn. R. R. Co. V. International Coal Mining Co., 173 Fed., 1, 7. (c) To maintain a petition before the Commission for the recovery of excessive freight charges 'it is not necessary that the payment of freight should have been made under protest. National Refining Co. v. A. T. & S. F. Ry. Co., 18 I. C. C. 389, 390. (d) It is not necessary that freight charges shall have been paid under pro- test in order to maintain a petition be- fore the Commission for the recovery of excessive charges. Nollenberger v. M. P. Ry. Co., 15 I. C. C. 595, 596. (e) In view of the necessary relations between the carrier and shipper, the de- pendence in modern business life of the latter upon the former, the right and duty of the carrier in the first instance to fix its charges, its obligation to adhere to the same until altered in the manner prescribed by law, and its right to en- force such charges by retaining posses- sion of the freight transported, or to de- mand payment of the freight charges as a prerequisite to the transportation, places the parties upon an unequal foot- ing so as to relieve the shipper from the necessity of protest against the paj'- ment of an unlawful rate. Southern Pine Lumber v. Southern Ry. Co., 14 I. C. C. 195. 197. (f) Proceedings for reparation before the Commission for indemnitory dam- ages are purely statutory and correspond to actions at law sounding in tort; the violation of the law produces the injury and completes the offense and the per- son injured does not have to perform any conditions to entitle him to recover for the damage sustained. For this rea- son protest upon payment of the unlaw- ful rate is unnecessary. Southern Pine Lumber Co. v. Southern R. Co., 14 I. C. C. 195, 197. (g) Complainant sought to recover an overcharge on a carload of lumber, Columbus, Miss., to Moline, 111., of 2c per 100 lbs. In a previous case before the Commission the rate charged by de- fendants covering the points in question was condemned and the rate claimed by complainant ordered, and defendant was a party in that case. Complainant paid the excess charge in the present case without making protest to defendant. HELD, such protest was not necessary, and complainant was entitled to recover the excess with interest. Southern Pine Lumber Co. v. Southern R. Co., 14 I. C. C. 195, 197. (h) Protest against the payment of unreasonable and excessive freight rates Is not a necessary prerequisite to the recovery of damages on account of the exaction of unjust, unreasonable ?nd unlawful charges. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 205. (i) A protest made at the time of the payment of freight money is not a necessary prerequisite to maintain- ing a complaint for reparation of un- reasonable charges. Baer Brothers Mer- cantile Co. V. M. P. Ry. Co., 13 L C. C 329, 338. §5. Necessity of First Paying Tariff Rate. See Infra, §6 (bb). (a) It is not the policy of the Com- mission to award reparation where law- ful charges have not been paid. Peale, Peacock & Kerr v. Central R. R. Co. of N. J., 18 I. C. C. 25, 33. (b) Where a shipper is entitled to recover reparation and it appears that the charge complained of was only paid to defendants in part, no account will be taken of this fact in the order of the Commission, but the matter will REPARATION, §6 (a)— (ij) 723 be left to l>e adjusted between the par- ties when payment is made under the order. Wilson v. C. M. & St. P. Ry. Co., 14 I. C. C. 549, 550. §6. Parties Entitled to Recover. See Procedure Before Commission, V, §13 (h). (a) In a suit for damages against a carrier for unlawful discrimination, plaintiff is not entitled to recover for the period during which he was him- self seeking and obtaining unlawful rebates. International Coal Mining Co. V. Penn. R. R. Co., 162 Fed. 996, 997. (b) As provided in the tariffs of the defendants, charges on certain shipments of grain products were assessed at the rates in effect when the shipments moved from the milling point and not at the rates in effect when the grain moved from point of origin. Complainant paid on its shipments precisely the same basis of rates as did its competitors. HELD, that an award of reparation in its favor would put it on a preferred basis as com- pared with its competitors and in its result work a discrimination against them. Reparation denied. Liberty Mills V. L. & N. R. R. Co., 23 L C. C. 182, 186. (c) Claims for reparation based upon a decision of the Commission filed by complainants not parties to the case in which such decision was rendered will not ordinarily be allowed unless repa- ration was claimed in the complaint upon which such decision was based, or was awarded by the Commission. The Commission may, however, in the ex- ercise of its discretion, upon good cause shown, and under unusual circum- stances, specially consider a particular claim for reparation of this class. No unusual circumstance being presented in this case, such a claim must be dis- allowed. Byrnes v. A. C. L. R. R. Co., 23 I. C. C. 251, 253. (d) On a mixed carload shipment of wheat and flaxseed from Esmond, S. D., to Minneapolis, Minn., complain- ant was charged the carload rate on a minimum weight for each of the com- modities. Regulations of western trunk line tariff did not allow the bulkheading of wheat and flaxseed unless one was sacked. HELD, that there was no au- thority for the exaction of rates on the flaxseed on basis of a carload minimum. Reparation denied, as complainant, en- gaged in grain commission business. had not paid the charges. Lamb, Mc- Gregor & Co. V. C. & N. W. Ry. Co., 22 I. C. C. 346. (e) The law contemplates that an award of reparation shall be made to the party actually injured. Lamb, Mc- Gregor & Co. V. C. & N. W. Ry. Co., 22 I. C. C. 346, 348. (f) The law contemplates that an award of damages shall be made to the person actually damaged. Where the complainant does not appear to have suffered any injury, and has no legal in- terest in an overcharge, the Commission can make no award of reparation. Lamb, McGregor & Co. v. C. & N. W. Ry. Co., 22 I. C. C. 346. (g) The commission merchant who has paid the freight and charged the same back to his consignor is not entitled to damages for an overcharge. Lamb, McGregor & Co. v. C. & N. W. Ry. Co., 22 I. C. C. 346. (h) In cases involving claims for reparation in connection with ship- ments of property of, or intended for the use of, a carrier subject to the Act, and which was transported by one or more other carriers, against which damages had been claimed, due to misrouting, misunderstandings as to ex- pressions of the Commission had arisen. HELD, carriers may have the same privi- leges as any other shippers. As the proportions in which the transportation charges will be borne by the vendor and the consignee carrier are reflected in the contract purchase price, it is suggested that property of a carrier should be consigned to that carrier, at the designated point of delivery. Also suggested that the contract of purchase and sale provide that the vendor bear a certain specified part of the trans- portation charges, provided the prop- erty is transported by a designated route, but if it is not so transported the entire transportation charge be borne by the vendor. In Re Transpor- tation of Company Material, 22 I. C. C. 439. (ij) Firms and individuals have an undoubted right to enter into contracts of purchase and sale under which the consignor pays an agreed portion of those charges. A carrier as a shipper has the same right. In Re Transporta- ttion of Company Material, 22 I. C. C. 439, 440. 724 REPARATION, §6 (k)— (s) (k) Ice was sold for a delivered price and by the terms of the contract of sale the freight money was to be paid by the ice company (the con- signor). Under an arrangement be- tween that company and the con- signee the latter in fact paid the money to the carrier and was reimbursed by the ice company; that is, the con- signee was the agent of the ice com- pany in the making of this payment and the payment upon every rule of law was a payment by the principal. The ice company, therefore, and not the consignee, is entitled to repara- tion. Mountain Ice Co. v. D. L. & W. R. R. Co., 21 I. C. C. 45, 51; modified, 596. (1) Where a consignee carrier de- ducted from the invoice price of goods a greater sum than would have been deducted had the shipment moved in accordance with routing instructions pursuant to a contract with the con- signee carrier, damages were awarded for the loss thus sustained. Beekman Lumber Co. v. L. Ry. & N. Co., 21 I. C. C 280. (m) When by the terms of sale the transportation charges were to be paid by the purchaser and were in fact so paid, the seller who was the shipper is not entitled to reparation for the exaction of an unreasonable rate. Fond du Lac Church Furnishing Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 481. (n) Where freight charges are actu- ally paid by the consignee but deducted by him from the invoice price of the shipment, the consignor is the proper person to bring reparation proceedings for an overcharge in the rate. Carolina Carolina Portland Cement Co. v. C. & O. Ry. Co., 21 L C. C. 533. (o) The consignor is entitled to damages for an unreasonable rate, where a consignee commission merchant actually paid the freight charges, but billed them back on the consignor, who ultimately paid them. Young- blood V. T. & P. Ry. Co., 21 I. C. C. 569, 570. (p) The consignee who pays the freight is the proper person to receive reparation for an excessive rate ex- acted and not the consignor. Mountain Ice Co. V. D. L. & W. R. R. Co., 21 I. C. C. 596, 597. (q) Complainant, manufacturer of gasoline engines, windmills, etc., at Evansville, Wis., bought pig iron "f. o. b. cars, Evansville, Wis., based on pres- ent freight rate" at a certain price per ton. Complainant paid the freight charges and deducted the amount of the same from the invoice price, returning the expense bills to the consignor. The contract of sale governing the shipments contained the following clause: "This price is based on present tariff freight rate of $1 per ton. In case the tariff freight rate declines, the buyer is to have the benefit of such decline. In case the tariff freight rate advances, the buyer is to pay the advance." While admitting that the freight charges were really paid by the consignor, complainant contended that in view of the foregoing provision in the contract it has paid a greater price for the iron than it would have paid under a lower freight rate, and that therefore it is entitled to any differenco between the rate existing at the dates of shipment and the lower rate which it contends would have been reason- able. HELD, although the rate ex- acted was unreasonable and is reduced, the complainant is not the party en- titled to reparation, because the pro- vision in the contract in regard to the selling price of the iron, being based on the freight rate, amounts to no more than an agreement between the parties as to changes which might occur in the rate. Baker Mfg. Co. v. C. & N. W. Ry. Co., 21 I. C. C. 605, 607. (r) A carload of apples In transit was purchased by complainant from another firm, and the freight charges up to Chicago deducted from the amount paid by the complainant to the ' vendor. In a similar manner the consignee f the shipment at destination deducted the freight charges to that point from Chicago from the invoice of complain- ant. Complainant secured from Its vendor an assignment of whatever in- terest that firm might have in the re- covery of reparation. HELD, reparation might properly be awarded to complain- ant. Gibson Fruit Co. v. C. & N. W. Ry. Co., 21 I. C. C. 644, 646. (s) Where the rate complained of was not paid by complainant no order for reparation will be entered. Fuller- ton. Powell, Harwood Lumber Co. v. V. & S. W. Ry. Co., 20 I. C. C. 86, 88; Kaul Lumber Co. v. C. of G. Ry. Co., 20 I. C. C. 450. 454. REPARATION, §6 (t)— (gg) 725 (t) The court cases holding that either the consignor or consignee may sue in case of loss or damage or breach of the contract of affreightment mean that each has a beneficial interest to the extent of making either of them a proper party plaintiff in such a pro- ceeding. These cases do not in any way controvert the principle announced by the Commission that the party paying the excessive charge is the one entitled to an award of reparation on finding that the rate charged is unrea- sonable and therefore unlawful. Sunny- side Coal Mining Co. v. D. & R. G. R. R. Co., 19 I. C. C. 20, 21. (u) So far as the Commission is aware, it has never knowingly de- parted from the rule that reparation is due the owner of property paying ex- cessive charges or on whose account it was paid. Sunnyside Coal Mining Co. V. D. & R. G. R. R. Co., 19 I. C. C. 20, 21. (v) Reparation is due the owner of property paying excessive charge or on whose behalf it was paid. Gamble- Robinson Commission Co. v. St. L. & S. F. R. R. Co., 19 I. C. C. 114, 116. (w) The well-settled rule of the Commission is that the party who has been required to pay an unlawful rate is the party to whom reparation should be awarded, and the person who han- dles produce on consignment is not en- titled to reparation. Gamble-Robinson Commission Co. v. St. L. & S. F. R. R. Co., 19 I. C. C. 114, 116. (x) If a rate charged is excessive per se the prevalence of competitive conditions is unimportant with respect to the right of the shipper to recover reparation. Southern Timber & Land Co. V. S. P. Co., 18 I. C. C. 232, 233. (y) No reparation will be awarded for an unreasonable rate where the complainant fails to show that it paid the freight charges. Fathauer Co. v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 517, 520. (z) Owner of freight who has paid an unreasonable rate entitled to repa- ration irrespective of the profits ac- cruing from his business. Kindelon v. S. P. Co., 17 I. C. C. 251, 255. (aa) Reparation in any given case is due the person who has been re- quired to pay an unlawful charge, and a shipper who has paid such a charge and is the owner of the goods transported is entitled to repayment, without the imposition of the impossi- ble task upon the Commission of as- certaining the ultimate profits which accrued from his business, since he is entitled to reparation irrespective of the profits accruing from his busi- ness. Kindelon v. S. P. Co., 17 I. C. C. 251, 255. (bb) Even if rates were found to be unreasonable no order of reparation would be entered, because complainant has not paid the lawful charges on shipment. Males Co. v. L. & H. Ry. Co., 17 I. C. C. 280, 282. (cc) If the rate was in fact unrea- sonable, defendants must make repa- ration irrespective of fact that shipper could have enjoyed lower rate if ship- ments had moved through a different gateway. Williar v. Can. Nor. Que. Ry. Co., 17 I. C. C. 304, 305. (dd) Where a carrier has made an overcharge through the misapplication of its published tariffs, it should settle the same with the shipper at once with- out proceedings before the Commission, but where the published rate has been collected but is alleged to be unrea- sonable, such cases should be referred to the Commission before being ad- justed. Tyson & Jones Buggy Co. v. A. & A. Ry. Co., 17 I. C. C. 330, 332. (ee) As complainant, who is a com- mission merchant, was neither consign- or nor consignee, and apparently did not pay the charges, order will be entered that defendant refund to such party as may be lawfully entitled to receive the same. Jones v. K. C. S. Ry. Co., 17 I. C. C. 468, 470. (ff) Complainant entitled to repara- tion by difference between amount col- lected and what would have been as- sessed under a reasonable rate. Mich- ael Cohen & Co. v. So. Ry. Co., 16 I. C. C. 177, 178. (gg) If the Commission felt that thfe rate charged was unjust and un- reasonable and that reparation should be granted it would so declare, regard- less of whether the number of shippers who had paid such rate was large or small. All should be treated alike. Menefee Lumber Co. v. T. & P. Ry. Co., 15 L C. C. 49, 51. 726 REPARATION, §6 (hh)— (oopp) (hh) The fact that complainant is neither consignee nor consignor do€S not exclude it from the right to repa- ration, where the evidence is conclusive that complainant bore th€ burden of the exc€ss charge and actually sustained the loss claimed. Lindsay Bros. v. G. R. & I. Ry. Co., 15 I. C. C. 182, 183. (ii) When the Commission has stated a general rule in regard to reparation, the fact that a particular shipper has refused to comply promptly with his lawful duty should not place him in a more advantageous position than the shipper who has complied with the law. Cambria Steel Co. v. B. & O. R. R. C, 15 I. C. C. 484. (jj) The fact that complainant's petition demands damages on a speci- fied shipment does not prejudice his right to recover on all shipments, even though the aggregate amount of such recovery is greater than the sum claimed. Nollenberger v. M. P. Ry. Co., 15 I. C. C. 595, 598. (kk) The unreasonableness of the rates on the lines of the defendant car- riers in the former proceedings referred to, from points of origin to points of destination embraced within the orders of the Commission therein, has already been established. Reparation should be awarded to the parties shown to be entitled thereto for the difference be- tween the rates condemned by said or- ders and the higher rates paid since the date of their establishment. The right to recover reparation is not con- fined to shipments made by parties to the former proceedings, but ex- tends to all shipments charged for on the basis indicated, by whomsoever made. No orders for reparation wul be entered on account of the alleged exaction of excessive charges on ship- ments from points of origin to destina- tion not involved in the former pro- ceedings until the question of the reasonableness of the rates shall be determined. The Commission has no jurisdiction to make orders for repara- tion on account of any alleged excess- ive rate except when, upon complaint, notice to the defendants, and a full hearing, such rate has been challenged and found to be unreasonable. Nicola, Stone & Myers Co. v. U & N. R. R. Co., 14 I. C. C. 199, 205. (11) The Commission is confined in the making of awards for reparation to the injury or damage sustained by those who are the real and substantial parties at interest in the transaction in which such transportation charges have been assessed. Ihe reparation is due to the person who has been required to pay the excessive charge as the price of transportation and who was the true owner of the property transported dur- ing the period of transportation. Nic- ola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 208, 209. (mm) In the former cases of Tift V. Southern Ry. Co., 10 I. C. C. 548, and Central Yellow Pine Ass'n v. Illinois Central R. R. Co., 10 I. C. C. 505, the Commission held that the rates on lumber shipped from points on de- fendants' lines in Louisiana, Mississippi, Alabama and Georgia, to points on and beyond the Ohio River, were excessive to the extent of 2c per 100 lbs. HELD, all shippers were thereafter entitled to recover reparation for shipments of lumber between the points embraced in these former decisions whether or not they were parties complainant in these cases. Nicola, Stone & Myers Co. V. L. & N. R. R. Co., 14 I. C. C. 199, 205. (nn) Where shippers of lumber have filed a complaint and secured an award of reparation for excessive rates paid by them to defendants, the Commission has no jurisdiction upon the interven- tion of the mill men and manufacturers selling lumber to complainants to de- termine whether they were the parties really injured by the excessive rates, and the Commission can award repara- tion only to the parties paying the ex- cessive charges. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 208. (oopp) In two former cases the Com- mission ordered a reduction of 2c per 100 lbs. on lumber shipped over defendants' lines from points in Louisi- ana, Mississippi, Alabama and Georgia to points on and north of the Ohio River. In the present proceedings com- plainants sought reparation of 2c per 100 lbs. on lumber shipped from points in the territory embraced in the former cases to points south of the Ohio River not involved in those former cases, and also for shipments from Florida and other territory not covered by the former decisions to points on, north, and south of, the Ohio River. Complain- REPARATION, §6 (qq)— §7 (c) 727 ants contended that on the face of the complaint they were entitled to reparation upon the theory that the facts, circumstances and conditions af- fecting the shipments in question were substantially the same as those in- volved in the previous cases. HELD, the Commission would not enter an or- der of reparation without the hearing of evidence, since defendants were en- titled to their day in court to deter- mine the reasonableness of rates, not theretofore specifically passed on. Nic- ola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 205. (qq) The right to recover repara- tion is not confined to shipments made by parties to the former proceedings, but extends to all shipments charged for on the basis indicated, by whomso- ever made. Nicola, Stone & Myers Co. V. L. & N. R. R. Co., 14 I. C. C. 199, 205. (rr) Relief against the carrier must ordinarily be predicated upon its failure or refusal to do what it is legally bound to do, and not upon the fact that the complainant shipper has volun- teered to do it for the carrier. Gen- eral Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 244. (ss) Where complainant ships lum- ber to another corporation as consignee under an arrangement by which such corporation is to pay the freight and deduct same from the purchase price, and it is charged an excessive rate and deducts same in its settlement with complainant, the shipper is entitled to recover the excess from defendant carrier. Hayden & Westcott Lumber Co. V. G. & S. I. R. R. Co., 14 L C. C. 537, 538. (tt) Record shows complainant did not pay the freight, nor does it appear that it was otherwise damaged. The complaint will therefore be held open to give complainant an opportunity to show that it paid the freight, or its consignee charged the excess to it and the amount has been paid. Sunderland Bros. Co. v. C. & N. W. Ry. Co., Unrep. Op. 148. (uu) Commission erred in former re- port. Additional reparation awarded. American Plow Co. v. P. M. R. R. Co., Unrep. Op. 219. (vv) Reparation will not be allowed on shipments moving prior to filing original complaint. Burgess v. Transcon- tinental Freight Bureau, Unrep. Op. 229. (ww) Reparation will be awarded only in favor of those who paid the charges, or on whose account the same were paid, and who were the true own- ers of the property transported during the period of transportation. Oden & Elliott v. S. A. L. Ry., Unrep. Op. 253. (xx) The only party to whom an award of damages can lawfully be made, where payment of an unreasonable rate is alleged, is the one who paid the rate, or on whose account it was paid. Minne- apolis Threshing Machine Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 452. §7. Statute of Limitations. See Claims, I; Procedure Before Com- mission, §4 (b), (c), § 13 (k). (a) Section 16 of the Act providing that all complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues and that the petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court within one year from the date of the order does not apply to a suit insti- tuted under section 9 of the Act. No limitation is prescribed by the Act for such a suit and whether the time is limited by the statute of limitations of the state in which the case arises, or by section 1047 of the Rev. St. U. S., quaere. Lyne v. D. L. & W. R. R. Co., 170 Fed. 847, 849. (b) A complaint for reparation on a discriminatory freight rate filed within one year from the passage of the law of June 29, 1906, is not subject to the two-year limitation of the statute, but if instituted subsequent to the year, it is so subject. Meeker & Co. v. Le- high Valley R. R. Co., 23 L C. C. 480, 482. (c) In Procter & Gamble Co. v. C. H. & D. Ry. Co., 9 I. C. C. 440, the Commission held the classification of common soap in less than carloads of 20 per cent less than third class unrea- sonable. The Commission's order was contested through the courts, and on May 13, 1907, the Supreme Court up- held it, and the carriers then complied Aug. 1, 1907. On Aug. 28. 1907. the complainant filed a petition inartificially drawn, named the complainants and de- fendants, and stated that the shipments involved were less than carload lots of common soap shipped by them over de- 728 REPARATION, §7 (d)— (k) fendants' lines to Philadelphia; the classification under which rates were charged and the classification under which they should have been charged, and promised to file shortly a detailed description of each shipment and a complete list of all overcharges. On June 24, 1908, an amended petition was filed, which was properly drawn, de- manding reparation on all less-than-car- load shipments of common soap by the complainant between April 10, 1903, and Aug. 1, 1907. HELD, that the Baltimore & Ohio Railroad, having been the only defendant originally a party to the Procter & Gamble case, it is the only one bound by that decision; that while the original petition filed by complainant was imperfect, yet since the defendant was advised by it that it had wrongfully collected sums of money from the complainant and exactly why these charges were wrongful, and had In its own possession a record of all the shipments of complainant and a record of all the overcharges on these shipments, the original petition must be held to have stated a good cause of action, and in view of the circum- stances of the case should be deemed to have stopped the running of the statute, and that reparation on the basis of the fourth-class rate should be awarded against the Baltimore & Ohio Railroad. Fels & Co. v. P. R. R. Co., 23 I. C. C. 483. (d) Where informal complaint cov- ering a shipment is not filed within two years after the cause of action ac- crued, relief will be denied by the Commission. Switzer Lumber Co. v. A. & M. R. R. Co., 22 I. C. C. 471, 475. (e) While the Commission holds that it is not necessary that a formal petition be filed in order to stop the running of the statute of limitations, an informal letter or other communica- tion to accomplish this result must con- tain all the elements of the claim. Fisk & Sons v. B. & M. R. R., 19 I. C. C. 299, 300. (f) Between Feb. 21 and March 12, 1907, complainant made five shipments of cement from LaSalle, 111., to Clinton, la., and Camanche, la. The carriers only exacted charges based upon a rate of 6.24c per 100 lbs. On April 17, 1909, additional charges were collected on the basis of 7.83c, the lawful pub- lished rate in effect at the time ship- ments moved. Petition was filed June 9, 1909. HELD, the statute of limita- tions began to run from the time when it became the duty of the carrier to collect its lawfully published rate, and the fact that additional charges might later be collected would not prevent the running of the statute from the time when the payment should have been required. Shoecraft & Son Co. v. I. C. R. R. Co., 19 I. C. C. 492. (g) Where a state in a proceeding before the Commission attacking rates asks no reparation, it does not stop the running of the statute of limitations against claims for reparation for ship- ments made by citizens of the state under the rates attacked. National Refining Co. v. A. T. & S. F. Ry. Co., 18 I. C. C. 389, 390. (h) A shipper and a carrier cannot extend the former's right to recover reparation by delaying the time of pay- ment of freight by the shipper. Blinn Lumber Co. v. S. P. Co., 18 I. C. C. 430, 432. (i) The period of two years pre- scribed by the statute within which the Commission is allowed to award damages for acts arising under vio- lations of the provisions of the Act begins to run at the time when the shipment is delivered and when it be- comes the legal duty of the carrier to collect its lawful charge, and not at the time of the payment of the freight by the shipper. (Cockrell & Prouty, Comm'rs dissenting.) Blinn Lumber Co. V. S. P. Co., 18 I. C. C. 430, 435. (j) Shipments moved in October and November, 1906, but on account of a controversy as to the rates lawfully applicable the payment of charges was delayed until June 3, 1909, and com- plaint was not filed until August 17, 1909. HELD, following Blinn Lumber Co. V. Southern Pacific Co., 18 I. C. C. 430, more than two years having elapsed between the delivery of the shipments and the institution of pro- ceedings, the claims were barred. (Prouty & Cockrell, Comm'rs, dissenting.) Blodgett Milling Co. v. C. I. & S. R. R. Co., 18 I. C. C. 439, 439. (k) A cause of action for repara- tion accrues on the date of delivery of the shipment. Blinn Lumber Co. v. S. P. Co., 18 I. C. C. 430; Blodgett REPARATION, §7 (1)— (s) 729 Milling Co. v. C. I. & S. R. R. Co., 18 I. C. C. 439. (1) The Commission has no Juris- diction to deal with complaints for repa- ' ration in any way unless filed with or pre- sented to it within the period specified in the statute. Werner Saw Mill Co. v. I. C. R. R. Co., 17 I. C. C. 388, 389. (m) The Commission cannot sanction a practice that would permit the revival of claims barred by the statute by subse- quently attaching them to other claims presented within the prescribed period. Werner Saw Mill Co. v. I. C. R. R. Co., 17 I. C. C. 388, 390. ^ (n) Where a complaint seeking repa- ration for certain claims is filed before the expiration of the limitation period applicable to said claims and upon mo- tion of complainant is dismissed without prejudice, the Commission may in its discretion reinstate said original peti- tion by a nunc pro tunc order as of date of the filing of the complaint in the first place, but it cannot reinstate such a complaint when the same has been amended to include claims not included in the original complaint and which are at the time of the motion for reinstate- ment barred by the statute of limitations. The Commission cannot sanction a prac- tice permitting the revival of claims barred by the statute by subsequently attaching them to other claims presented within the prescribed period, despite any promises on the part of defendant car- riers that they will not take advantage of the statute of limitations. The Com- mission has no jurisdiction to deal with complaints for reparation in any way un- less filed with or presented to it within the period specified by the statute. It is not vested with the powers of a court of equity to relieve from hardships re- sulting from improvident arrangements or agreements between the parties. Louis Werner Sawmill Co. v. I. C. R. R. Co., 17 I. C. C. 388, 389-391. (o) On January 23, 1906, complainant shipped clothing from New York City to Janesville, Wis., via the Erie, the Chicago & Erie, and the C. & N. w'. R. Rs. No complaint, formal or informal, was filed against the Erie R. R. and the Erie & Chicago R. R. until September 24, 1909. May 1, 1907, complainant filed an in- tended formal complaii.t against the C. & N. W. R. R. alone. The Commission ad- vised that the complaint was faulty and suggested that it make informal complaint to the C. & N. W. R. R., which was im- mediately done. March 12, 1908, com- plainant called the Commission's atten- tion to the fact that no reply had been received from the C. & N. W. R. R., and it was then discovered that the original file of papers had been lost. May 15, 1908, complainant furnished du- plicate of original complaint, which was brought to 'the attention of the C. & N. W. R. R. On May 27. 1908, the C. & N. W. R. R. responded, denying liability. Complainant was advised of this and filed complaint September 24, 1909. HELD, with respect to the Erie R. R. and the Chicago & Erie R. R. the statute of limi- tations had run, but not so with respect to the C.-& N. W. R. R. Amos Rehberg & Co. V. Erie R. R. Co., 17 I. C. C. 508, 510. (p) Where a complaint is filed July 1, 1908, all damages which may have ac- crued prior to July 1, 190G, are barred by the statute. Pilant v. A. T. & S. F. Ry. Co., 15 I. C. C. 178, 181. (q) On a shipment made May 26, 1906, freight charges were i.aid July 10, 1906, and the complaint filed June 23, 1908. HELD, said claim was not barred since all claims whether arising prior or subsequent to August 28, 1906, are en- titled to two years for presentation, the one year proviso applying only to claims that accrued more than two years prior to said date. Kile & Morgan Co. v. Deep- water Ry. Co., 15 I. C. C. 235, 237. (r) On account of misrouting a car- load of lumber from Harper, W. Va., con- signed to New Haven, Conn., and intended by the shipper to be reconsigned at New York to Nashua, N. H., complainant ship- per was subjected to an extra charge of the local rate from New Haven to Nashua. HELD, the cause of action to recover reparation for said extra charge arose not on the date of misrouting or on the date delivery was made, but on the date the freight charges were paid. Kile & Morgan Co. v. Deepwater Ry. Co., 15 I. C. C. 235, 236. (s) Alleged excessive charges on car- loads of sawmill machinery from Oge- maw, Ark., to Sodus, La., were paid June 6, 1905, and the complaint, filed Septem- ber 9, 1907, alleged the unreasonable and discriminatory character of the rate sole- ly for the purpose of claiming reparation. HELD, the claim being barred by the stat- 730 REPARATION, §7 (t)— §8 (c) ute of limitations, the complaint should be dismissed. Pleasant Hill Lumber Co. V. St. L. S. W. Ry. Co., 15 I. C. C. 532. (t) The filing of a petition on the 28th of August, 1907, is within the proviso that claims accruing prior to the passage* of the amended Act, June 29, 1906, may be presented within one year. Goff-Kirby Coal Co. V. Bessemer & Lake Erie R. R. Co., 13 I. C. C. 383, 386. (u) Under the amendatory act of June 29, 1906, a complaint filed after Aug. 28, 1907, Is barred by the statute of limitations except as to shipments made within two years immediately pre- ceding the date of the filing of said com- plaint. Missouri & Kansas Shippers' Ass'n V. A. T. & S. F. Ry. Co., 13 I. C. C. 411, 413. (v) Complainant, a voluntary associa- tion of merchants at Kansas City, Mo., asked reparation for switching charges collected from members of the associa- tion on carload shipments of hay, coal, grain and wool consigned to Kansas City. The members of the association, on whose behalf the demands were made, were not named in the complaints, nor did the complaints by date, weight, car number,, point of origin, name of con- signor or consignee, amount of freieht collected, or otherwise, set up and de- scribe the particular shipments on which reparation was claimed. The complaint in the first case, filed August 9, 1907, de- manded reparation on all shipments made prior to August 28, 1906, regardless of date. The other three complaints were filed Aug. 22, 1907. The first of these covered shipments made from 1902 to 1906; the second, shipments during 1903- 1904, and until May 31, 1905; and in the third reparation was asked on shipments made between September 22, 1902, and January 2, 1904. Said complaints were filed under the urgent request of the sec- retary of complainant who advised mem- bers that the limitation period was about to expire, and that they would not have time to institute complaints individually. HELD, such general complaints, failing as they did to specify the members prefer- ring same and to point out the shipments in question, could not operate to stop the running of the statute of limitations. Complaints dismissed. Missouri & Kan- sas Shippers' Ass'n v. A. T. & S. F. Ry. Co., 13 I. C. C. 411, 416. (w) Where a defendant carrier was shown to have failed to supply complain- ant coal operators their just proportion of cars, complainants attempted to show that it they had been properly supplied, had had sufficient laborers, had sold all the coal so mined and shipped it at about the average mine price for the period in question, they Avould have made a profit on a certain number of supposed tons of coal equal to the difference between the said average price i)er ton and the esti- mated cost of producing the coal. On this evidence complainants sought repa- ration. HELD, the evidence was too vague and indefinite. Reparation denied. Royal Coal & Coke Co. v. Southern Ry. Co., 13 L C. C. 4-.J, 448. III. CIRCUMSTANCES DETERMINING RIGHT. §8. Erroneous Publication. See Discrimination, §4 (s) ; Evidence, §29 (m); Express Companies, §11 (5) (a), §11 (9) (b), §22 (a); Facilities and Privileges. §17 (k), §21 (bb); Overcharges, §8 (d), (e); Special Contracts, §2 (dd), (mm); Undercharges, §2 (d), (e), (f). (a) Defendant established a rate on sheep of $44 for a single deck car, and $134 for a double deck car, the latter quotation being an error. Prior to these rates the charge had been $40 for either a single or a double deck car. Subse- quently the rates were reduced to the old basis of $40 for either kind of a car. Complainants, who were in a position to ship sheep in double deck cars, elected to make each shipment in two single deck cars under the $44 rate rather than to ship in double-deck cars carrying the erroneous rate of $134. HELD, that in electing to ship in single-deck cars com- plainants adopted the only feasible meth- od of avoiding an unconscionable and admittedly unlawful charge, and even then they were obliged to pay double the amount for which they ought to have ob- tained the desired transportation. Repa- ration awarded. Bowles & McCandless V. L. & N. R. R. Co., 19 I. C. C. 563. (b) A charge of 33c per 100 lbs. on a shipment of metallic cartridges from Kings Mills. O., to Muncie, Ind., is excess- ive, such charge being due to a typo- graphical error in the published tariff, which should have read 23c, and which was subsequently corrected so to read. Reparation awarded. Goddard Co. v. C. C. C. & St. L. Ry. Co., 16 I. C. C. 298, 299. (c) Higher rate charged because lower rate inadvertently omitted from tariff. REPARATION, §8 (d) — (w) 731 Tariff adjusted. Reparation awarded. Northern Wood Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 7. (d) Publication of higher rate due to error. Higher rate held unreasonable. Stewart Produce Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 11; Ohio Iron & Metal Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 15; Acme Cement Plaster Co. V. C. R. I. & P. Ry. Co., Unrep. Op. 37, 38. (e) Privilege of reconsignment, con- centration, storage, etc., omitted from tariff through error, subsequently re- stored; reparation awarded on shipments made during int€rim. Hawkinson v. C. R. I. & P. Ry. Co., Unrep. Op. 25. (f) Greater minimum, inserted in tar- iff through error, subsequently corrected; reparation awarded on basis of lower minimum. Acme Cement Plaster Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 56. (ff) Reparation awarded on carload of whiting from Philadelphia, Pa., to San Francisco on account of misappli- cation of rates. jNIagnew Bros. v. A. T. & S. F. Ry. Co., Unrep. Op. 103. (g) Point omitted from tariff, causing higher rate to be assessed, subsequently corrected. Reparation awarded. Mc- Caul-Webster Elevator Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 117. (h) Participating carrier omitted from tariff, causing higher rate to be assessed; tariff corrected. Reparation awarded and rate ordered to be maintained. Utah- Idaho Sugar Co. v. O. S. L. R. R. Co., Unrep. Op. 154. (i) Intermediate i>oint, through error, omitted from tariff, causing higher rate to be charged. Reparation awarded. Copper Queen Consolidated Mining Co. V. Penn. R. R. Co., Unrep. Op. 176. (j) Higher minimum weight inserted in tariff through error. Reparation awarded. Marquette Cement Mfg. Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 188. (k) Charges assessed on erroneous calculation of distance on shipment of coal from Randolph Mine, Va., to Locust Point, Md., reconsigned to Laurel, Md. Reparation awarded. Buck Bros. v. B. & O. R. R. Co., Unrep. Op. 190. (1) Rate on wood from Oconto, Wis., to Chicago, Evanston and Elsmere, 111., omitted from tariff through error. Rep- aration awarded. Northern Wood Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 193. (m) Through inadvertence participat- ing carriers omitted from tariff, causing higher rate to be assessed. Reparation awarded. Shenkberg Co. v. O. S. L. R. R. Co., Unrep. Op. 216. (n) Point omitted from group through error. Subsequently corrected. Repara- tion awarded, demons Produce Co. v. G. W. Ry. Co., Unrep. Op. 232. (o) Through error in publication a tariff applied higher rate; subsequently corrected. Reparation awarded. Copper Queen Consolidated Milling Co. v. B. & O. S. W. R. R. Co., Unrep. Op. 242. (p) Tariff provision omitted through error; subsequently corrected by amend- ed tariff. Reparation awarded. Menasha Woodenware Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 258. (q) Commission has no authority to award reparation on the basis of a rate lower than that duly established solely on account of a misquotation thereof by the carrier. American Milling Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 282. (r) Through clerical error application of rates to intermediate points omitted from tariff. Reparation awarded. Wind- sor Milling & Elevator Co. v. C. & S. Ry. Co., Unrep. Op. 284. (s) Higher rate in effect through er- ror; subsequently corrected. Reparation awarded. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., Unrep." Op. 259. (t) "Any quantity" omitted in reissue of tariff, causing minimum to be applied. Reparation awarded. Milwaukee- Wauke- sha Brewing Co. v. C. & N. W. Ry. Co., Unrep. Op. 294. (u) Transit privilege omitted from tariff through error at Milwaukee, Wis. Reparation awarded. Franke Grain Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 296. (v) Through error higher class rate 'n effect than commodity rate from neigh- boring points. Subsequently corrected. Reparation awarded and reduced rate ordered maintained. Miller & Co. v. T. & P. Ry. Co., Unrep. Op. 331. (w) Transit privilege on grain origi- nating on Illinois River, with privilege of milling at Indianapolis, omitted 732 REPARATION, §8 (x)— §9 (c) through error when carried via certain packet line. Subsequently corrected and reparation awarded. Evans Milling Co. V. C. C. C. & St. L. Ry. Co., Unrep. Op. 351. (x) Erroneous quotation of a rate af- fords no basis for reparation. Menefee Bros. V. R. & W. R. R. Co., Unrep. Op. 359. (y) Rates advanced through error subsequently reduced. Reparation award- ed on shipments moving during interim of advance. Garden City Grain & Prod- uce Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 394. (z) Misquotation by agent of carrier no ground for reparation. Alabama Lum- ber & Export Co. V. C. of Ga. Ry. Co., Unrep. Op. 442. (aa) By reason of errors in publica- tion of tariff unreasonable rates were as- sessed. Reparation awarded. Donahue- Stratton Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 449. (bb) Tariff, through typographical er- ror, had higher rate inserted. Repara- tion awarded. Hill-Ingham Lumber Co. V. K. C. S. Ry. Co., Unrep. Op. 464. (cc) Higher rate inserted in tariff through error. Reparation awarded. Con- tinental Oil Co. V. B. & O. C. T. T. T. Co., Unrep. Op. 517. (dd) Through a defect in its tariffs defendant failed to properly provide for a concentration privilege in connection with shipments of cotton. Subsequently corrected. Reparation awarded. Ren- ner-Millette Co. v. G. H. & S. A. Ry. Co., Unrep. Op. 525. (ee) Through error in spelling of Menominee, Mich., and Menomonie, Wis., class rate in effect which was higher than commodity rate intended. HELD, unreasonable, reparation awarded and lower rate to be maintained for two years. Carpenter Cook Co. v. L & N R. R. Co., Unrep. Op. 543. (ff) Participating carrier omitted from tariff through error, causing higher rate to be charged. Subsequently corrected. Reparation awarded. Detroit Chemical Co. v. P. M. R. R. Co., Unrep. Op. 40. (gg) Commodity omitted from tariff, causing higher rate to be charged. Rep- aration awarded. Moore Mercantile Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 49. (hh) Rule that, when larger car fur- nished than requested, lower minimum will be applied omitted from tariff. Rep>- aration awarded. Laning-Harris Coal & Grain Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 51. (ii) Through inadvertence, horse blankets omitted from proportional tar- iff from Minneapolis, Minn., to Chicago, 111. Subsequently adjusted. Reparation awarded. North Star Woolen Mill Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 94. (jj) Higher rate in effect as result of error in publishing tariff. Reparation awarded. Miller & Co. v. G. R. & I Ry. Co., Unrep. Op. 518. §9. Failure to Post Tariff. (a) Complainant shipped snap corn, Calvin, Okla., to DeQueen, and Wilton, Ark., under a joint rate of 23c. Prior to date of shipment the rate had been 19c, but was advanced at time of shipment, but tariff not posted at Calvin. Had this been done the increased rate would have been included in the price of the corn, which was sold f. o. b. destination. HELD, reparation should be awarded on account of the failure of the carriers to post the tariff changing the rate. Canadian Val- ley Grain Co. v. C. R. I. & P. Ry. Co., 19 I. C. C. 108. (b) Between December, 1907. and Oc- tober, 1908, complainant shipped carloads of logs from Granite Bluff and other Michigan points to Kiel, Wisconsin. Prior to August 20 the rate in force was $2.50 per 1,000 ft. without limitation upon the size of the logs. On that date defendant issued a supplement limiting the application of the $2.50 rate to logs 10 ft. or more in length and prescribed a rate of 4c per 100 lbs. for logs under this length. Defendant failed to post the amendment at Kiel. Had it done so complainant would have sawed the logs at the length required to secure the $2.50 rate. HELD, defendant having paid the 4c per 100 lb. rate was entitled to repa- ration on the basis of $2.50 since the Commission has authority to award repa- ration to a shipper for damage suffered from a carrier's failure to post a tariff in accordance with section 6 of the Act. Kiel Woodenware Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 242, 244. (c) Reparation awarded for damages sustained by reason of failure of car- riers to post tariff advancing a rate. REPARATION, §10 (a)— §11 (f) 733 Wolf Milling Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 439. §10. Laches. (a) Where complaints seeking repa- ration are filed within the period of limi- tation they cannot he defeated on the ground of laches because not filed at an earlier date. Kindelon v. S. P. Co., 17 I. C. C. 251, 253. (b) Rates on lumber were increased in 1903. The complaint was filed in 1907. Although the rates attacked were proved to be unreasonable at the time of the hearing no evidence was offered to show them unreasonable prior to 1903. HELD, on account of the laches of complainant and the lack of proof, reparation could not be awarded on shipments made prior to the date of filing the complaint. Thompson Lumber Co. v. I. C. R. R. Co., 13 L C. C. 657, 667. (c) A rate on lumber was in 1904 raised from 75c to 85c and in 1908 was found to be unreasonable to the extent of 10c. The shippers paying said excess were probably not themselves damaged since they simply added same to the sell- ing price and cast the burden upon the public. HELD, the shippers should not be permitted to slumber upon their rights and to accumulate damages against the carriers and should be awarded repara- tion only for shipments made since the date of filing the complaint. Burgess v. Transcontinental Freight Bureau, 13 1. C. C. 668, 680. §11. Rate via Competing Line. See Rate via Competing Line; Spe- cial Contracts, §2 (k), (a) In a claim for reparation it is not sufficient to prove the unreasonableness of a rate merely to show that at the time of shipment a lower rate was in effect via another competing route. Delray Salt Co. V. M. C. R. R. Co., 18 I. C. C. 247, 247. • §12. Readjustment of Rates. See Advanced Rates, §7 (1) (d). (a) On adjusting lumber rates in cer- tain zones on the Pacific coast, the Com- mission granted reparation in certain rases involving coast rates and denied it on shipments from points in the Spo- kane groups or zone on the ground that its order with reference to the Spokane group involved an initial adjustment of territory, or at least a very material re- adjustment of territory, both new and old, from points within which it was deemed proper that differentials should be al- lowed upon shipments eastward over the coast rates. HELD, the reason given was good and sufficient to support the Commission's action in denying repara- tion on shipments from the Spokane group and its discretion could not be re- viewed by the court. Fidelity Lumber Co. V. G. N. Ry. Co., 193 Fed. 924, 928. (b) On adjusting lumber rates in cer- tain zones on the Pacific coast, the Com- mission granted reparation in certain cases involving coast rates and denied it on shipments from points in the Spokane group zone on the ground that its order with reference to the Spokane group in- volved an initial adjustment of territory, or at least a very material readjustment of territory, both new and old, from points within which it was deemed proper that differentials should be allowed upon shipments eastward over the coast rates. HELD, such an adjustment did not oper- ate as a discrimination between shippers, the award being simply that the coast rates, with their differential as fixed by the Commission, should continue until the time when the new schedule from the particular zones should become oper- ative, and that the zone shippers were not entitled to the additional reparation on account of shipments made previous to the order establishing the new differ- entials. Fidelity Lumber Co. v. G. N. Ry. Co., 193 Fed. 924, 929. (c) Where a changed relationship on which reparation is demanded was in rates which had long existed prior to the advances complained of the Commission does not think reparation should be awarded. Pacific Coast Lumber Mfrs. Ass'n V. N. P. Ry. Co., 16 I. C. C. 465, 467. (d) Reduction in connection with a general readjustment of rates made nec- essary by building up new line no ground for reparation. Eddy v. A. T. & S. F. Ry. Co., Unrep'. Op. 367. (e) Commission declines to award reparation on basis of a rate adjustment prescribed for the future. Mack Mfg. Co. V. P. C. C. & St. L. Ry. Co., Unrep. Op. 521. (f) Reduction in connection with a general readjustment of rates made nec- essary by the building of a new line af- 734 REPARATION, §12 (g)— §16 (a) fords no grounds for reparation. Eddy V. A. T. & S. F. Ry. Co., Unrep. Op. 367. (g) Combination class rate found to be unreasonable and excessive to the ex- tent that it exceeded lower commodity rate formerly in effect. Reparation awarded. Jaekel Bros. v. D. L. & W. R. R. Co., Unrep. Op. 146. §13. Res Adjudicata. See Evidence, V. (a) In cases before this Commission involving rates neither the plea of res adjudicata nor stare decisis as used at common law has any standing as affect- ing shipments moving subsequent to the decision of the Commission relied on. Waco Freight Bureau v. H. & T. C. R. R. Co., 19 I. C. C. 22, 24. (b) Rates reasonable at the present time may within the period of two years become very unreasonable by reason of changes in circumstances and condi- tions, economic transportation, or the like. It should be just as apparent that a rate which was unreasonable two years or more ago may become reasonable by reason of such changes in conditions. A plea of estoppel by reason of former ad- judication is not good in so far as an in- vestigation of present rates is con- cerned, although in a former proceeding a decree of a court was a general finding for the defendants on all the issues of fact. National Hay Ass'n v. M. C. R. R. Co., 19 I. C. C. 34, 37. (c) The Commission has no jurisdic- tion or authority to make orders for rep- aration on account of any alleged excess- ive rate except when, upon complaint, notice to defendants, and full hearing, such rate has been challenged and upon investigation, found to be unreasonable and unjust, and while the alleged similar- ity of circumstances and conditions, if es- tablished at such hearing, might afford a basis for forceful argument for action by the Commission similar to that taken in former cases, it cannot assume such similarity on the face of the complaint as a basis for an award of reparation. Ni- cola, Stone & Myers Co. v. L. & N. R R Co., 14 I. C. C. 199, 206. §14. Special Rate. See Special Rates, (a) The Commission cannot permit a refund on a particular shipment for the purpose of enabling carriers to make good a rate not in effect when the shipment moved, but which they had agreed to pro- tect, it being necessary to show that the rate charged was unreasonable and to award reparation on the basis of a rea- sonable rate. Crowell & Spencer Lumber Co. V. T. & P. Ry. Co., 17 I. C. C. 333, 334. (b) The Commission does not approve the practice of putting a special rate in effect simply for the purpose of enabling the Commission to make reparation in a* particular case and with a clause in the tariff under which, after remaining in force for a "period of say 30 days, during which time the Commission would ordina- rily enter its relief order, the rate will expire. In such cases the Commission will in order to prevent discriminations require the rate to remain in effect as a maximum for a definite period of time to be designated in the final order. Hol- comb-Hayes Co. v. I. C. R. R. Co., 13 I. C. C. 16, 19. §15. Unpublished Charges. See Allowances, §9 (dd) ; Evidence, §60; Facilities and Privileges, §17 (i). (a) Demurrage and storage charges collected as the result of carriers demand- ing rates in excess of those in their legally filed tariffs must be refunded, and this principle applies to cases in which charges are demanded on shipments as to which no rates are published, but on which the carrier attempts to exact an unreasonable rate, precipitating a con- troversy during which demurrage ac- crues. Northern Lumber Mfg. Co. v. T. & P. Ry. Co., 19 I. C. C. 54, 55. (b) Refund must be made of unpub- lished charges and those in excess of published charges. Northern Lumber Mfg. Co. V. T. & P. Ry. Co., 19 I. C. C. 54, 55. (c) The Commission cannot award damages because a carrier has ceased to grant unpublished privileges which amounted to nothing less than rebates from the tariff rates. National Lumber Co. V. S. P. L. A. & S. L. R. R. Co, 15 I. C. C. 434. §16. Voluntary Reduction. See Absorption of Charges, §2 (c), (d); Blanket Rates, §7 (aa); Evi- dence, §29 (m), §64; Voluntary Rates. (a) The voluntary reduction of a rate by a carrier does not, in itself, without proof that the former rate was unreason- REPARATION, §16 (aa) — (h) 735 able, furnish a sufficient basis for rep- aration. Pierce v. P. & L. E. R. R. Co., 23 I. C. C. 89, 91. (aa) The voluntary reduction of a rate by a carrier is not of itself such a proo^' of the unreasonableness of the former rate as to form a proper basis for an award of reparation. Sunderland Bros. Co. V. C. B. & Q. R. R. Co., 18 I. C. C. 512, 513. (b) The fact that defendants have voluntarily canceled a seventy-two hours' limitation period on reconsignment to meet a commercial condition does not afford a just basis for reparation on past shipments. Sunnyside Coal Mining Co. V. D. & R. G. R. R. Co., 16 I. C. C. 558. (c) The voluntary reduction of a rate by a carrier does not conclusively show that the former rate was unjust or un- reasonable and that reparation should be granted on all shipments moving there- under within the period of the statute of limitation. Menefee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. 49, 51. (d) Where a carrier reduces rates it does not follow that reparation will be granted for that reason alone, Foster Lumber Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 56, 57; Harlow Lumber Co. v. A. C. L. R. R. Co., 15 I. C. C. 501, 503; Mene- fee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. 49. 51; Mose Smith & Co. v. Mo. & N. Ark. R. R. Co., 15 I. C. C. 449; Pilant V. A. T. & S. F. Ry. Co., 15 I. C. C. 178. (e) It is to the interest of the shipping public in nowise to embarrass carriers in decreasing rates when the latter thinks such decrease equitable and there- fore the Commission will not adopt a pol- icy by which, upon the voluntary reduc- tion of a rate, a shipper who has previ- ously paid the higher rate may recover as damages whatever difference there may be between the old and the new, where application has not been made either to the railroad or to the Commission for a reduction of the rate prior to the time at which the railroad itself makes such reduction and where It does not clearly appear that the rate complained of was unreasonable. Foster Lumber Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 56, 57. (f) When carriers have of their own volition made a reduction of rates, it is not the practice of the Commission to award reparation as a matter of course on all shipments made previous to the reduction, since such policy would oper- ate as the strongest possible deterrent to the voluntary decrease of rates. Pilant V. A. T. & S. F. Ry. Co., 15 I. C. C. 178, 181. (g) Where rates have been estab- lished by carriers in good faith and ac- quiesced in by shippers without protest, this Commission will not award repara- tion, even though the rate is reduced, unless It clearly appears that the rates paid in the past have been excessive. Penrod Walnut & Veneer Co. v. C. B. & Q. R. R. Co., 15 1. C. C. 326, 328. (gg) Reparation awarded on basis of lower rate voluntarily established. Thompson, Thayer & McCowen v. I. C. R. R. Co., Unrep. Op. 482; Tuthill Spring Co. V. C. & N. W. Ry. Co., Unrep. Op. 495; Moore & Co. v. S. A. L. Ry. Co., Unrep. Op. 498; Browne Grain Co. v. M. L. & T. R. R. & S. S. Co., Unrep. Op. 499; Gamble-Robinson Commission Co. V. St. L. & S. F. R. R. Co., Unrep. Op. 506; Sunderland Bros. Co. v. M. K. & T. Ry. Co., Unrep. Op. 508; Fort Smith Wholesale Grocery Co. v. Ft. S! & W. R. R. Co., Unrep. Op. 509; Michigan Am- monia Works V. M. & St. L. R. R. Co., Unrep. Op. 511; Standard Oil Co. v. K. C. S. Ry. Co.,, Unrep. Op. 512; Standard Oil Co. V. C. C. C. & St. L. Ry. Co., Unrep. Op. 513; Kellogg Switchboard & Supply Co. V. C. & N. W. Ry. Co., Unrep. Op. 514; Boyd v. O. W. R. R. & Nav. Co., Unrep. Op. 519; Harvey & Co. v. C. & N. W. Ry. Co., Unrep. Op. 522; Wells- Higman Co. v. T. & P. Ry. Co., Unrep. Op. 527; Chanute Refining Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 528; Union Tanning Co. v. L. & N. R. R. Co., Unrep. Op. 542; Hardy v. L. & N. R R. Co., Unrep. Op. 548; American Hardwood Co. v. St. L. I. M. & S. Ry. ^a., Unrep. Op. 550; Schoenhofen Brew- ing Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 566; International Creosoting & Con- struction Co. V. N. O. T. & M. R. R. Co., Unrep. Op, 568; Comstock & Co. v. N. & M. Ry. Co., Unrep. Op. 575; Central Commercial Co. v. T. & M, Ry, Co,, Un- ■ep. Op, 579; Byrnes v. Wells, Fargo & 3o., Unrep. Op. 589. (h) Reparation awarded on shipments of apples on account of voluntary reduc- tion in rates. Lamb Co. v. C. G. W. Ry. Co., Unrep. Op. 5. 736 REPARATION, §1G (i) — (aaa) (1) Reparation awarded on shipment of crushed concrete gravel from Fon- tana, Wis., to Chicago, 111., on account of voluntary reduction. American Sand & Gravel Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 13. (j) Chicago rate formerly applicable from Sioux City, la., to Gary, Ind., in connection with the Wabash and C L. S. & E. Ry. Co. was canceled as to Wabash R. R. and thereafter established. Combination rate charged in interim found unreasonable and reparation ordered. Armour & Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 18. (k) Rate advanced and voluntarily re- duced. Reparation awarded on shipment made during period of advancement. Na- tional Paper Mills & Filler Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 19; Winona Malting Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 21. (1) Reparation awarded on shipment of paper from Munising, Mich., to Los Angeles, Cal., on account of voluntary reduction in rates. Blake, Moffet & Towne v. C. M. & St. P. Ry. Co., Unrep. Op. 29. (m) Reparation awarded on shipment of coal from Bernice, Pa., to Newton, N. J., on account of voluntary reduction. Hamilton Grange No. 57 v. Penn. R. R. Co., Unrep. Op. 39. (n) Reparation awarded on two car- loads of cemect plaster on account of voluntary reduction in rates. Acme Ce- ment Plaster Co. v. U. P. R. R. Co., Unrep. Op. 41. (o) Reparation awarded on shipment of bobsleds from Fond du Lac, Wis., to Colville, Wash., on account of voluntary reduction. Poison Implement Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 42. (p) Reparation awarded on shipment of millet seed from Seymour, la., to Kan- sas City, Mo., on account of voluntary reduction in rates. Simonds-Shields Grain Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 43. (q) Reparation awarded on various shipments of wagon springs from Chi- cago, 111., to points in Wisconsin on ac- count of voluntary reduction, in rates. Tuthill Spring Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 44. (r) Rate on cement and plaster ad- vanced and subsequently reduced; repa- ration awarded on basis of reduction. Union Sand & Material Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 52. (s) Reparation awarded on. shipment of iron bridge material from Clinton, la., to Durand, Wis., on account of voluntary reduction in rates. Clinton Bridge & Iron Co. V. C. M. & St. P. Ry. Co., Un- rep. Op. 55. (t) Reparation awarded on three ship- ments of oil from Red Wing, Minn., to La Crosse, Wis., on account of voluntary reduction in rates. Red Wing Linseed Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 59. (u) Reparation awarded on shipments of crushed gypsum rock from Grand Rapids, Mich., to Copenhagen, Tenn., on. account of voluntary reduction. Acme Cement Plaster Co. v. G. R. & I. Ry. Co., Unrep. Op. 62. (v) Reparation awarded on ship- ments of candy from Montgomerj-, Ala., to Lake Charles, 111., on basis of lower rate established shortly after movement. Dreyfus Bros. v. L. & N. R. R. Co., Unrep. Op. 63. (w) Reparation awarded on shipment of malt from Davenport, la., to Omaha, la., and present lower rate subsequently established ordered to be maintained. Independent Brewing & Malt Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 65. (x) Reparation, awarded on shipment of flour from Fargo, N. Dak., to Miles City, Mont., and present lower rate or- dered to be maintained for two years. Jordan & Sons Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 66. (y) Reparation awarded on shipment of watermelons from Cone, la., to New Prague, Minn., on account of voluntary reduction. Gamble-Robinson Commis- sion Co. V. C. M. & St. P. Ry. Co., Un- rep. Op. 70. (z) Rate on agricultural implements increased from 17c to 25c subsequently reduced to 20c and then to 17c; repara- tion awarded on basis of 17c rate. Rowell Mfg. Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 71. (aaa) Reparation awarded on ship- ments of rock-crushing machinery from Harvey, 111., to Groos, Mich., on account of voluntary reduction in rates. Austin Mfg. Co. V. I. C. R. R. Co., Unrep. Op. 72. REPARATION, §16 (bb) — (tt) 737 (bb) Following Darling & Co. v. B. & O. R. R. Co., 15 I. C. C. 79, reparation awarded on shipments of phosphate rock from Tennessee mines to Canton, O. Canton Fertilizer & Chemical Co. v. W. & L. E. R. R. Co., Unrep. Op. 87. (cc) Reparation awarded on carload of flaxseed from Council Bluffs, la., to Minneapolis, Minn., on account of vol- untary reduction. Updike Grain Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 91. (dd) Reparation awarded on 15 car- loads of cattle from Granby, Colo., to Chicago. 111., on account of establish- ment of lower rate. Swift & Co. v. D. X. W. & P. Ry. Co., Unrep. Op. 92. (ee) Reparation awarded on ship- ments of sawmill machinery from Wau- sau. Wis., to Cravens, La., on account of establishment of lower rate. Gulf Lumber Co. v: C. M. & St. P. Ry. Co., Unrep. Op. 95. (ff) Rates on beer advanced and sub- sequently reduced to former rate, during interim shipment made; reparation awarded on basis of former rate. Schlitz Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 96; Pabst Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 97, 98, 99, 100; Schlitz Brewing Co. v. C. M. & St. P. Ry. Co.. Unrep. Op. 104, 105. (gg) Reparation awarded on two car- loads of paving brick from Graves Mines, Ala., to Natchez, ]\Iiss., on ac- count of establishment of lower rate. Southern Bitulithic Co. v. So. Ry. Co., Unrep. Op. 106. (hh) Reparation awarded on ship ments of mixed carloads of empty beer barrels and beer bottles, on basis of lower established rate. Pabst Brewing Co. V. G. V. G. & N. Ry. Co., Unrep. Op. 111. (iijj) Reparation awarded on three carloads of stock cattle from So. Omaha, Neb., to Kings, 111., on basis of Kings being accorded same rate as Chicago which is an. intermediate point. Ross v. C. M. & St. P. Ry. Co., Unrep. Op. 112. (kk) Reduction in rate subsequent to shipment is not conclusive evidence" ot unreasonableness of rate charged. Ham- mond Packing Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 120. (11) Rate advanced, subsequently re- duced; reparation awarded on basis of reduction; no material changes in cir- cumstances and conditions. Winkel & Co. V. Spokane International Ry. Co., Unrep. Op. 122. (mm) Joint through rate canceled, leaving higher combination rates in ef- r^ct; joint through rate restored. Repa- ration awarded. Swift & Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 130. (nn) No joint through rate in effect, combination charged which is higher than subsequently established joint through rate. Reparation awarded, and mairtenance of reduced rate ordered. Northwestern Traffic & Credit Bureau V. C. M. & St. P. Ry. Co., Unrep. Op. 131. (oo) Rate charged on shipment of tank blocks from Steubenville, O., to Los Angeles, Cal., found unreasonable, and the subsequently established lower rate prescribed for the future. Reparation awarded. Quartz Glass & I\Ifg. Co. v. P. C. C. & St. L. Ry. Co., Unrep. Op. 140. (pp) Rate on writing paper from Ap- pleton. Wis., to Minnesota Transfer, Minn., found to be unreasonable, and the subsequently established lower rate pre- scribed for the future. Reparation awarded. Riverside Fibre & Paper Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 141. (qq) Lower combination now appli- cable via route shipment moved. Repara- tion awarded. Port Huron Engine & Thresher Co. v. C. R. I. & P. Ry. Co., Unrep. Op. 147. (rr) Rate charged on shipments of alum from New York City to Basin Mills, Me., found unreasonable and the subsequently established lower rate pre- scribed for the future. General Chem- ical Co. V. I\Ie. S. S. Co., Unrep. Op. 151. (ss) Upon a petition asking for re- paration, reparation awarded on the basis of rates established by the car- riers shortly after the shipments moved. American Tobacco Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 167; Ingersoll-Rand Co. V. C. R. R. Co. of N. J., Unrep. Op. 210. (tt) Reparation awarded on basis of lower rate, subsequently established. Dakota Cereal Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 178; International Harvester Co. of America v. C. M. & St. P. Ry. Co., Unrep. Op. 179; Cai^r 738 REPARATION, §16 (uu) — (ggg) Mfg. Co. V. C. M. & St. P. Ry. Co., Un- rep. Op. 180; Moline Plow Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 186; Alex- ander & Co. V. A. T. & S. F. Ry. Co., Unrep. Op. 187; Southern Cotton Oil Co. Co. V. A. C. L. R. R. Co., Unrep. Op. 119. (uu) Intermediate clause canceled by order of Commission, leaving higher rate in effect; subsequently reduced. Repara- tion awarded. International Harvester Co. of America v. C. M. & St. P. Ry. Co., Unrep. Op. 179; Carr Mfg. Co. v. C, M. & St. P. Ry. Co., Unrep. Op. 180. (vv) Rate found unreasonable to the extent of the subsequently established! lower rate. Reparation awarded and rate ordered maintained. Morris & Co. vs. L. S. & M. S. Ry. Co., Unrep. Op. 182. (ww) Reparation awarded on ship- ment of beer from Milwaukee, Wis., to Powersville, Mo., and lower rate sub- sequently established prescribed for the future. Val Blatz Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 184. (xx) Rate advanced, then reduced to former rate. Reparation awarded. Pabst Brewing Co. v. C. B. & Q. R. R. Co., Unrep. Op. 195; Emerson Mfg. Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 212. (yy) Reparation awarded on ship- ment of ground limestone from Chicago, 111., to Omaha, Neb., and lower rate sub- sequently established prescribed for the future. Murphy v. C. M. & St. P. Ry. Co., Unrep. Op. 192, (zz) Following the Darling case, 15 I. C. C. 79, reparation awarded against initial carrier on shipment of phosphate rock from points in Tennessee to Niag- ara Falls, N. Y. Oldbury Electro-Chem- ical Co. V. C. H. & D. Ry. Co., Unrep. Op. 204. (aaaaj Cancellation of intermediate clause causing higher rate to be charged. Specific rate now in effect. Reparation awarded. Midland Linseed Co, v. C. M. & St. P. Ry. Co., Unrep. Op. 205; Thomas Produce Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 209. (bbb) Rate on fuel wood canceled, leaving higher rate in effect, subsequent- ly restored. Reparation awarded on, shipments made during interim. Stange Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 207. (cec) Reparation awarded on basis ot lower rate subsequently established. Spartanburg Ry., Gas & Electric Co. v. P. R. R. Co., Unrep. Op. 214; Steinhardt & Co. V. T. & P. Ry. Co., Unrep. Op. 215; Carlisle Commission Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 217; Holmes & Co. V. O. S. L. R. R. Co., Unrep. Op. 218; Wisconsin Pulp & Paper Mfrs. v. D. &. I. R. R. R. Co., Unrep. Op. 225; Ra- cine-Sattley Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 234; Browne v. Ameri- can Express Co., Unrep. Op. 237; Herf & Frerichs Chemical Co. v. S. Ry. Co., Unrep. Op. 244; Jackson Grocery Co. v. S. P. Co., Unrep. Op. 245; Terhune Lumber Co. v. G. & F. Ry. Co., Unrep. Op. 247; Pabst Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 254; Pabst Brewing Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 255; Menasha Wooden ware Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 258; Rudgear-Merle Co. v. Goodrich Transit Co., Unrep. Op. 264; Milwaukee Corrugating Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 273; Robinson Clay Product Co. V. Erie R. R. Co., Unrep. Op. 275; Gamble-Robinson Commission Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 286; Wisconsin Iron & Metal Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 300; Davis Sewing Machine Co. v. P. C. C. & St. L. Ry. Co., Unrep. Op. 301; Hall & Co. v. S. P. Co., Unrep. Op. 306; Cochrane Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 307. (ddd) Reparation awarded on shii)- ments of fire brick of various shapes, the lower rate on fire brick and fire- brick tile having been made applicable a short time after the movement. West- ern Gas Construction Co. v. W. R. R. Co., Unrep. Op. 230. (eee) Joint rates canceled to prevent an apparent discrimination in favor of intermediate points; no evidence tending to show combination rate unreasonable. Reparation denied. Isbell-Brown Co. v. L. S. & M. S. Ry. Co., Unrep. Op. 231. (fff) Rate advanced, subsequently re- stored. Does not demonstrate the un- reasonableness of the advanced charge. Reparation denied. Pabst Brewing Co. V. C. M. & St. P. R}^ Co., Unrep. Op. 259. (ggg) Rate advanced, subsequently restored. Reparation awarded. Minne- qua Coal Co. v. D. & R. G. R. R. Co., Unrep. Op. 268; Arnold v. M. P. Ry. Co., Unrep. Op. 293; Christian & Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 340; REPARATION, §16 (hhh)— (zzz) 739 Abeles & Co. v. St. L. S. W. Ry. Co., Unrep. Op. 326. (hhh) Following Rule 68, Tariff Cir- cular 17 A, reparation awarded on basis of lower rate in effect. Germain Co. v. A. B. & A. R. R. Co., Unrep. Op. 2<7. (iii) Reduction due to competitive conditions. Preclude the finding as a fact that the rate actually charged was unreasonable. Reparation denied. Ad- vance Thresher Co. v. M. C. R. R. Co., Unrep. Op. 283. (jjj) No joint commodity rate in ef- fect from intermediate point; subsequent- ly made applicable. Reparation awarded. Cochrane Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 307. (kkk) Low commodity rate estab- lished on brick, during the course of construction of a number of buildings, to meet water competition. Subsequent- ly commodity rate canceled, leaving ini effect higher class rate. Reparation de- nied. Hammond v. B. & M. R. R. Co., Unrep. Op. 313. (Ill) Commodity rate canceled, leav- ing higher class rate in effect. Com- modity rates restored and reparation awarded. Hope Cotton Oil Co. v. T. & P. Ry. Co., Unrep. Op. 336. (mmm) Rate reduced on application of complainant. Former rate not found unreasonable and reparation denied. Acme Cement Plaster Co. v. P. M. R. R. Co., Unrep. Op. 345. (nnn) No joint or combination com- modity rates in effect, on track bolts, class rates prohibited by tariffs. Lower rate than charged subsequently estab- lished. Reparation awarded on basis of lower rate established. Miller v. T. & B. V. Ry. Co., Unrep. Op. 349. (ooo) Rate voluntarily reduced. For- mer rate not having been found unrea- sonable, reparation denied. Port Huron Engine & Thresher Co. v. G. C. & S. F. Ry. Co., Unrep. Op. 352; Ralston Purina Co. V. M. & O. R. R. Co., Unrep. Op. 354. (ppp) Joint class rate higher than combination of intermediates. Subse- quently joint commodity rate established lower than combination. Reparation awarded on basis of joint commodity rate and rate ordered maintained. Swanson v. C. B. & Q. R. R. Co., Unrep. Op. 356. (qqq) Commodity rate on beer can- celed, subsequently restored. Reparation awarded on basis of cancelled rate. Portner Brewing Co. v. S. Ry. Co., Un- rep. Op. 361; Hope Cotton Oil Co v. T. & P. Ry. Co., Unrep. Op. 336. (rrr) Reduction forced by competi- tive conditions no ground for reparation. Western States Portland Cement Co. v, M. P. Ry. Co., Unrep. Op. 363, (sss) Kates on apples from Fairbury, Neb., to El Reno, Okla., found unrea- sonable because of reduction and repara- tion awarded. Moon v. C. R. I. & P. Ry. Co., Unrep. Op. 364. (ttt) Reparation awarded on basis of lower rate subsequently established. Murphy DiStiliing Co. v. E. & T. H. R. R. Co., Unrep. Op. 366; Empson Packing Co. V. C. & C. Ry. Co., Unrep. Op. 431; Oshkosh Fuel Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 432; Sims v. A. C. L. R. R. Co., Unrep. Op. 434; Oakland Warehouse Co. v. C. G. W. R. R. Co., Unrep. Op. 443; Sunderland Bros. Co. V. C. & N. W. Ry. Co., Unrep. Op. 445. (uuu) Reduction made in connection with a general readjustment of rates and building of competitive line. No ground for reparation. Eddy v. A. T. & S. F. Ry. Co., Unrep. Op. 367. (vvv) Reduction and maintenance of lower rate by competing line to nearby points no ground for reparation. Com- plaint dismissed. Swife & Co. v. G. C. & S. F. Ry. Co., Unrep. Op. 372. (www) Reparation awarded on basis of lower rate established and conceded by carriers to be reasonable. Haas & Sons V. M. K. & T. Ry. Co., Unrep. Op. 373. (xxx) Complainant shipped lumber via an indirect route with class rate. This rate subsequently reduced to meet commodity rate in effect via direct route. Reparation cannot be predicated upon reduction of the rate via the in- direct route to meet the rate via the short line. Willson Bros. Lumber Co. v. P. S. & N. R. R. Co., Unrep. Op. 375. (yyy) Rate in force prior to reduc- tion not having been shown to have been unreasonable, complai-nt dismissed. Tremont Lumber Co. v. T. & G. Ry. Co., Unrep. Op. 383. (zzz) Rates reduced owing to active competition amongst carriers, no ground 740 REPARATION, §16 (aaaa) — (wwww) for reparation. Bearman Fruit Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 395. (aaaa) Rate advanced, subsequently restored. Reparation denied on ship- ments moving durirg interim. Schlitz Brewing Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 405. (bbbb) Combination rate exceeded joint commodity rate subsequently estab lished. Reparation awarded. Southern Shuttle & Bobbin Co. v. T. F. Ry. Co., Unrep. Op. 407. (cccc) Through combination rate found unreasonable, reduction ordered and reparation awarded. Chamber of Commerce of Houston v. H. E. & W. T. Ry. Co., Unrep. Op. 408. (ddddeeee) Decrease in value of com ro.odity and increase in volume thereof resulted in action by carrier reducing rates. No ground for reparation. Coo]^ Co. V. P. Co., Unrep. Op. 421. (ffff) Reparation awarded on basis of joint through rate with transit privileges restored. Blackwell Milling & Elevator Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 483. (gggg) Reparation awarded on basis of lower rate subsequently established and admission of defendant that former rate was unreasonable. Paonia Packing Co. V. A. T. & S. F. Ry. Co., Ujirep. Op. 487. (hhhh) Rate advanced, subsequently reduced, due to competitive conditions. Reparation denied on shipments moving during interim. Anheuser-Busch Brew- ing Co. V. M. P. Ry. Co., Unrep. Op. 497. (iiii) Reduction in classification ap- plicable to jacks. Former rate held un- reasonable and reparation awarded. Elsi- nore Cattle Co. v. P. Exp. Co., Unrep. Op. 500. (jjjj) It is well settled that the vol- untary reduction of a rate, unaccom- panied by proof that the higher rate was unreasonable, is not sufficient basis for an award of reparation. Godfrey & Sons Co. V. N. Y. C. & H. R. R. R. Co., Unrep. Op. 503. (kkkk) Reduction in rate on malt and increase in proportional on barley to equal local rate on malt do not of themselves constitute grounds for repa- ration. Electric Malting Co. v. C. M. & St. P. Ry. Co., ITnrep. Op. 504. (1111) Class rate on ammoniacal liquor reduced to lower commodity rate. Reparation awarded. Michigan Ammonia Works V. M. & St. L. R. R. Co., Unrep. Op. 511. (mmmm) Reparation awarded on basis of lower rate established to main- tain relative adjustment. Swift & Co. v. C. B. & Q. R. R. Co., Unrep. Op. 516; Buffalo Fertilizer Co. v. L. & N. R. R. Co., Unrep. Op. 573. (nnrn) Rates in effect prior to reduc- tion admitted to be unreasonable by car- riers, f-rior to written admission rate advanced. No justification being shown. HELD, unreasonable and reparation awarded. Swift & Co. v. C. B. & Q. R. R. Co., Unrep. Op. 516. (oooopppp) Prior to date of shipment Df small arms ammunition 59c rate in ef- fect. On date of shipment 66c rate in effect, and subsequently reduced to 55c. Reparation awarded on basis of 59c rate. Reynolds-Davis & Co. v. St, L. I. M. & S. Ry. Co., Unrep. Op. 551. (qqqq) Rate increased, subsequently reduced-. Reparation awarded on ship- ments moving during interim. Great Western Portland Cement Co. v. M. K. & T. Ry. Co., Unrep. Op. 559. (rrrr) Reduction caused by competi- tive conditions. Reparation denied. Elk- hart Bristol Board & Paper Co. v. C. C. C. & St. L. Ry. Co., Unrep. Op. 561. (ssss) Reparation awarded on basis of lower rate established to maintain relative adjustment. Buffalo Fertilizer Co. V. L. & N. R. R. Co., Unrep. Op. 573. (tttt) Reparation awarded on basis of lower commodity rate established than class rate charged. Moore v. S. Ry. Co., Unrep. Op. 574. (uuuu) Reparation awarded on basis of lower minimum established subse- quent to movement of traffic. Wiscon- sin Bridge & Iron Co. v. C. ^I. & St. P. Ry. Co., Unrep. Op. 582. (vvvv) Where a long-established rate is raised for a short time and then vol- untarily reduced to the former point the presumption is that the advanced rate is unreasonable, but this presump- tion may be overcome by proof to the contrary^. Chaffia Coal Co. v. B. & O. R. R. Co., Unrep. Op. 585. (wwww) Rate advanced, subsequently reduced to former basis in order to pre- REPARATION, §16 (xxxx)— §17 (i) 741 serve relative adjustment. Reparation denied on shipments moving during in- terim. Peerless Woolen Mills v, C. N. O. & T. P. Ry. Co., Unrep. Op. 594. (xxxx) No through rate in effect at time of shipment; combination rate ap- plied; through rate subsequently estab- lished, which was lower than the com- bination rate applied. Reparation award- ed. Howard & Co. v. N. C. & St. L. Ry. Co., Unrep. Op. 50. (yyyy) Tariffs emitted from Pueblo, Colo., as a common Colorado point, which was adjusted subsequent to movement of shipments. Reparation awarded. Radin- sky V. Colo. & So. Ry. Co., Unrep. Op. 88. (zzzz) Reparation awarded on ship- ment of compressed cotton linters from Checotah, Okla., to Los Angeles, Cal. Reparation awarded. Checotah Cotton Oil Co. V. M. K. & T. Ry. Co., Unrep. Op. 143. (aaaaa) Rate advanced on shipment of beer from Milwaukee, Wis., to McCook, Neb., then reduced to former rate. Rep- aration awarded. Pabst Brewing Co. v. C. B. & Q. R. R. Co., Unrep. Op. 195. (bbbbb) Reparation awarded on ship- ment of empty mineral-water bottles from Buffalo, N. Y., to Sheboygan, Wis. Repa- ration awarded. Sheboygan Mineral Water Co. v. M. C. R. R. Co., Unrep. Op. 197. (ccccc) Joint rates established subse- quent to movement of shipments. Rep- aration denied. Wisconsin Pulp & Paper Mfrs. V. D. & I. R. R. Co., Unrep. Op. 225. §17. Willingress of Carrier to Pay. See Equalization of Rates, §4 (2) (k); Evidence, §3, §47 (e) ; Reason- ableness of Rates, §48 (b). (a) Reparation cannot be awarded merely on the admission of the defend- ant that the complainant is the party entitled to such reparation. It must be affirmatively shown that the complainant is the proper party entitled to reparation. Baker Mfg. Co. v. C. & N. W. Ry. Co., 21 I. C. C. 605, 607. (b) Willingness of a carrier to pay reparation does not form a basis upon which the Commission can make its find- ings. Cady Lumber Co. v. M. P. Ry. Co., 19 I. C. C. 12, 14. (c) An award of reparation can be predicated only upon an affirmative find- ing that a rate exacted was r\ fact ex- cessive, and not merely upon a showing that the carrier is willing to honor the claim. Pabst Brewing Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 359, 360. (d) On two carloads of soft coal from Green Bay, Wis., one to Wetonka, and one to Leola, S. D., rates of $3.85 were charged to Wetonka. and $3.55 to Leola. Wetonka was 773 miles from Green Bay and Leola 784. Sut sequent to the ship- ment, rates to Leola and to Wetonka were established from Green Bay of $2.85 and $2.70, respectively. Defendants admitted the rates charged to be unreasonable. The rates yielded in one instance 4 mills and in tlie other 4.4 mills per ton mile. HELD, reparation could not be awarded merely on the consent of the carriers, and in view of the per-ton-mile revenue earned, the rates in question were not shown to be unreasonable. Reparation denied. Pacific Elevator Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 373. (e) Where, beyond the agreement be- tween the parties, no showing is made that charges exacted were unreasonable, since a carrier may voluntarily make lower rates than it could le compelled to make, the Commission will not award reparation on the basis of a rate lower than that which it would prescribe as reasonable. Pacific Elevator Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 373, 374. (f) No basis is afforded for reparation merely because the carrier would con- sent. Werner Saw Mill Co. v. I. C. R. R. Co., 17 I. C. C. 388. 390; Pabst Brewing Co. V. C. M. & St. P. Ry. Co., 17 I. C. C. ?59; Pacific Elevator Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. 373. (g) To sanction as a just basis for reparation a private understanding prior to making shipment, the rate remaining unchanged until the shipments were made, would be to establish a p-recedent for the grossest discrimination and fa- voritism. Armour Car Lines v. S. P. Co., 17 1. C. C. 461, 462. (h) Upon admission of defendants that a charge of $1.40 per hundred pounds on a shipment of a carload of rice from New Orleans, La., to Billings, Mont., was unreasonable, and that $1.07 was a reasonable rate, complainant is awarded reparation on the basis of the latter rate. Stone-Ordean-Wells Co. v. C. B. & Q. R. R. Co., 16 I. C. C. 30. 31. (i) A charge of 40c on cotton seed in carloads from Kilbourne, La., to Pine 742 REPARATION, §17 (j)— §18 (e) Bluff, Ark., is unreasonable by defend- ant's admission, and complainant is en- titled to reparation on the basis of a 12c rate voluntarily established subsequent to the shipment. Bluff City Oil Co. v. St. L. I. M. & S. Ry. Co., 16 I. C. C. 296. 297. (j) Where on an agreed statement of facts defendant carrier admits the rate exacted to be unreasonable, it cannot, even after the Commission has so ruled, make reparation until the rate found to be reasonable is published by defendant. Venus V. St. L. I. M. & S. Ry. Co., 15 I. C. C. 136, 137. (k) Where upon shipments of plaster from Grand Rapids, Mi^h, to Milwaukee, Wis., defendant admits that its rate of 9c was published by mistake, and is un- just and unreasonable, and where by a supplemental tariff it later establishes a rate of IV2C, plaintiff is entitled to rep- aration on the basis of that rate, and defendant will be ordered to maintain it for a period of two years. Grand Rapids Plaster Co. v. Pere Marquette R. R. Co., 14 I. C. C. 571, 572. IV. LIABILITY FOR REPARATION. §18. Measure of Reparation. See Procedure Before Commission, §5 (i); Reasonableness of Rates, §23 (g); Routing and IVIisrouting, §9. (a) Where a railroad charges plaintiff shipper a higher rate than it charges a competing shipper on a portion of the latter's shipments plaintiff is entitled to recover the difference between these charges on the whole amount shipped by him during a given period and is not lim- ited to recovering the difference between the charge levied on plaintiff and the average charge levied on his competitor during said period. Penn. R, R. Co. v. International Coal Mining Co., 173 Fed. 1, 6. (b) Where there is no showing that complainant has been damaged by the payment of a lower rate by one not his competitor, the Commission does not think complainant is entitled to repara- tion. Carter White Lead Co. v. N. & W. Ry. Co., 21 I. C. C. 41, 44. (c) The Lehigh Valley R. R. Co. paid to coal operators who had sold their out- put to the Lehigh Valley Coal Co., which it owned, large sums of money on ship- ments which such operators had made between Nov. 1, 1900, and Aug. 1, 1901, on account of a readjustment of freight rates pending during that period and finally consummated at the end of that year. Such refunds were not made to complainants, who were shippers of coal from the same district. HELD, that as complainants had paid higher rates than other coal shippers similarly situated, they were unjustly discriminated- against and damaged, for wiuch reparation will be awarded. Meeker &. Co. v. Lel'igh Valley R. R. Co., 21 I. C. C. 129, 137. (d) The measure of damages is the difference between a discriminatory rate charged and a rate found reasonable. Sondheimer . Co. v. L C. R. R. Co., 20 I. C. C. 606, 611. (e) Complainant, engaged in the fab- rication of structural iron at Ottumwa, la, shipped five carloads of same in the summer of 1907 over defendants' lines to Kansas City, Mo., at the fifth class rate of 22c per 100 lbs. in carloads. Shortly thereafter, other carriers taking the lead, defendants reduced their rate to 16c. Since 1905 another carrier had in effect a rate of 16c on this commodity from Des Moines to Kansas City. Ot- tumwa is directly intermediate between Des Moines and Kansas City, on de- fendants' line. Early in 1908 defendants established a proportional lie rate from Des Moines to Kansas City on traffic originating east of the Illinois-Indiana line. Competitors of complainant were located at Des Moines and Clinton, la., St. Louis and Chicago, and iron fabri- cated at said points came largely from Pittsburgh. The rates from points of fabrication to Kansas City, added to the rates from Pittsburgh to those points, practically equaled the through rates from Pittsburgh direct to Kansas City. The 22c rate from Ottumwa to Kansas City complained of was established when there was little movement of structural iron from Ottumwa to Kansas City. Complainant purchased the five carloads with a knowledge of the 22c rate, and made its bid upon that basis. After the shipment of the five cars, conplainant obtained the benefit of the reduced rate on subsequent shipments. HELD, that complainant was not entitled to repara- tion on said five cars. Ottumwa Bridge Co. V. C. M. & St. P. Ry. Co., 14 I. C. C. 121, 126. REPARATION, §19 (a)— (j) 743 §19. Parties to Make Refund. See Procedure ^fore Commission, §13 (s); Routing and IVlisrouting, §10: Througli Routes and Joint Rates, §22 (e), (h). (a) Findings of facts made by the Commission as to the application of a classification rule by all carriers in Official Classification territory are ap- propriate as the basis for the awarding of damages only to the extent that they apply to the particular carriers which w^ere before it. Fels & Co. v. P. R. R. Co., 23 I. C. C. 483, 486. (b) Where one factor of a combina- tion rate is found unreasonable an award of reparation will issue only against the carrier responsible for the excessive charge. Wheeler Lumber, Bridge & Supply Co. v. St. L. I. M. & S. Ry. Co., 23 I. C. C. 514, 515. (c) Where a carrier published a joint tariff offering delivery on the track of one of its connections, who, as a matter of fact, had not concurred, and which refused to deliver without the payment of switching charges, which forced the consignee to dray the ship- ment, such dmyage charges constituted the measure of damages for which repa- ration should be awarded against the carrier publishing the unauthorized tariff. Edison Portland Cement Co. v, D. L. & W. R. R. Co., 22 I. C. C. 382. (d) Where part of a joint through rate is found unreasonable and the car- riers for the part of transportation for which the rate is found unreason- able are parties defendant, reparation may be awarded against such carriers, although the delivering carrier whose local rate formed part of the through joint rate, which local rate is not at- tacked, is not a party defendant. Wil- lamette Pulp & Paper Co. v. B. & A. R. R. Co.. 21 I. C. C. 178, 180. (e) Where on a shipment from Low- ell, Mass., to Denver, Colo., an excess- ive charge accrues wholly to the line west of the river, that carrier alone is the one to make reparation. Colo- rado Tent & Awning Co. v. B. & M. R. R. Co., 21 I. C. C. 565, 566. (f) The Commission awards repara- tion on account of unreasonable charges and expresses the opinion that carriers should join in its payment upon the basis of their respective divisions, but no order to that effect made. Young- blood V. T. & P. Ry. Co., 21 L C. C. 569, 572. (g) Where lake lines received the entire advance of a joint through rate, an order for reparation condemning such advance win be directed against the lake lines alone. Wyman, Part- ridge & Co. V. B. & M. R. R., 19 I. C. C. 551, 553. (h) Roads participating in collection of unreasonable rates should refund on basis of agreed divisions of lower rea- sonable rates. National Mfg. Co. v. C. G. W. Ry. Co., 18 I. C. C. 370, 371. (1) On a carload of syrup from St. Joseph, Mo., to Pullman, Wash., moved via the Chicago Great Western R. R., Soo Line, Can. Pac. R. R., Spokane In- ternational R. R. and Oregon R. R. & Navigation Co., the published rate of $1.2214 was collected. The agent of the Soo Line soliciting the business mis- takenly quoted a rate of 97i/^c, and com- plainant gave routing instructions ac- cordingly. Before the shipment was de- livered to the Soo Line at Minnesota Transfer the agent discovered his mis- take and requested the Chicago Great Western R. R. to divert the shipment to the N. P. Ry. at Minnesota Transfer, so as to make the 9714c rate apply. The request was made in time, but the di- version was not accomplished. Prior to the shipment a 97i/^c rate was appli- cable over other routes, and subsequent thereto defendants put into effect this rate. The Chicago Great Western R. R. and the Soo Line admitted that one of them was liable. HELD, the rate ex- acted being unreasonable, reparation should fall upon all the carriers par- ticipating, for although the Chicago Great Western R. R. might have been negligent in failing to divert the car there was a primary, as well as a greater, duty of all the participating carriers to have reasonable rates in effect. National Mfg. Co. v. C. G. W. Ry. Co., 18 I. C. €. 370, 371. (j) Where defendant carriers admit the unreasonableness of the charge but do not stipulate as to which one of them reparation shall be assessed against, the order will be entered against all of them, leaving them to adjust the division of reparation among themselves according to their rules. Davenport Pearl Button Co. v. C. B. & Q. R. R. Co., 17 I. C. C. 193, 194. 744 REPARATION, §19 (k) — (v) (k) Wh€re the initial carrier charges an excessive rate for its proportion of the haul and misrouting the shipment, complainant is entitled to reparation for both injuries from the initial carrier alone, and the latter has no recourse against the connecting carrier. Noble v. St. L. & S. F. R. R. Co., 16 I. C. C. 186. 187. (1) Where upon a through shipment the rate is made up of the combination of locals, and the local charge of the initial carrier is reasonable and of the connecting carriers is unreasonable, reparation will be awarded only against the connecting carriers. Sunderland Bros. Co. V. C. & N. W. Ry. Co., 16 I. C. C. 212, 213. (m) Where contrary to shipper's in- structions, a shipment of phosphate rock is diverted to the wrong intermediate carrier, resulting in higher charge, the diverting carrier must assume responsi- bility for the overcharge. Woodward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 173. (n) Complainant shipped carloads of crude phosphate rock from St. Blaise, Tenn., to Riddlesburg, Pa., and specific- ally routed the same. Defendant con- necting carrier had joined in the joint rate and through route specified and its tariffs did not reserve the ri^ht of diver- sion to any other route over which a higher rate would legally be applicable. The bill of lading furnished to complain- ant, however, made such reservation. De- fendant diverted the shipments to an other connecting carrier taking a higher rate, which was exacted of complainant. HELD, reparation should be awarded against said defendant for the diversion. Woodward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 173. (o) Carriers who received no part of the charges and who did not participate in the movement of the commodity are not liable to refund the whole or any part of the rate for the movement of a shipment in which they did not partici- pate. The liability is restricted to those carriers who participated in the trans- portation of the lumber via their respec- tive routes over which the several ship- ments moved and who shared in the transportation charges therefor, and such carriers are jointly and severally liable to the persons found to be entitled to the refund. Nicola, Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199. 209. (p) Carriers participating in the trans- portation of lumber via their respective roads over which the several shipments move, and sharing in the transportation charges therefor, are jointly and severally liable to refund overcharges. Nicola. Stone & Myers Co. v. L. & N. R. R. Co., 14 I. C. C. 199, 209. (q) Where defendants charge an ex- cessive joint rate, complainant shipper is entitled to an order of reparation against both, leaving them to make a proper ad- justment between themselves. Hayden & Westcott Lumber Co. v. G. & S. I. R R. Co., 14 I. C. C. 537, 538. (r) On a carload of glass fruit jars from Greenfield, Ind., to Calico Rock, Ark., complainant was assessed 53i/^c. made up of 16%c to Cairo and 37c from Cairo to Calico Rock. Shortly after thr. movement in question, defendants low- ered the 37c rate to 29c, making the total 451/^c, and at the hearing admitted the unreasonableness of the rate charged. HELD, reparation should be awarded on the basis of 45i^c against the connecting carrier from Cairo to destination only, the initial carriers not being narties to the 37c rate and their joint rate of 16V^c ex- tending only from Greenfield to Cairo. American Grocer Co. v. P. C. C. & St. L. Ry. Co., 13 I. C. C. 293, 294. (s) The rule under which the charge was made was a joint regulation of two carriers, one operating within the United States, the other in Canada; the award of reparation will run against the domestic carrier alone. Brunswick- Balke-Collender Co. v. G. T. W. Ry. Co., Unrep. Op. 334. (t) Reparation awarded against in- itial line where shipment moves on joint rate when such initial line for its own convenience furnishes two smaller cars in lieu of a larger car ordered, even though the tariff carrying the joint rate fails to contain such a provision. Mo- line Plow Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 419. (u) Reparation awarded against in- itial line, wi'-hout contribution from con- nections, for furnishing two cars for shipment of flagpole when equipment was available for loading in one. Calvi V. C. M. & St. P. Rv. Co., Unrep. Op. 461. (v) It is well settled that where an unreasonable joint rate has been col- lected the liability of the parties to such REPARATION, §19 (w)— §21 (f) 745 action is joint and several, and the Com- mission may award reparation against one of the roaJs which participated in the traffic, even though other roads which performed a part of the service are not made parties defendant. West- ern Hardwood Lumber Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 463. (w) Joint rate exceeded certain com- bination of commodity rates. Upon ex- amination of tariffs carrying the com- modity rates, it is found that the lines on whose rails the traffic originated are not parties thereto. Complaint dis- missed. Carpenter v. St. L. I. M. & S. Ry. Co., Unrep. Op. 529. (x) Intermediate carrier not made party defendant, but may join in the payment of reparation. Janesville Barb Wire Co. v. C. & N. W. Rv. Co., Unrep. Op. 537. §20. Release of Liability. (a) Complainant, by an agreement ratified on May 14, 1909, released the de- fendants from any liability on all claims of whatsoever kind and nature for rep- aration on the advances in rates of freight on yellow pine lumber growing out of the 2c advance south of the river, litigated in the Tift Yellow Pine case. On July 10, 1909, it filed complaint asking reparation on the shipments here in ques- tion, which claim had not at the time of executing the release been filed with the Commission or in a court of justice. HELD, complainant is not entitled to any reparation. Deeves Lumber Co. v. C. & N. W. Ry. Co., 19 I. C. C. 482, 486, (b) Pefendants are authorized to carry out an agreement made with com- plainants for the satisfaction of claims on shipments of lumber based on the de- cisions in Tift V. Southern Ry. Co., 10 I. C. C. 548 and 707; Central Yellow Pine Ass'n V. I. C. R. R. Co., 10 I. C. C. 505. the cause of said complaints being the same as in Joice & Co. v. I. C. R. R. Co., 15 I. C. C. 239. Jenks Lumber Co. v. S. Ry. Co., 17 I. C. C. 58. V. PROCEDURE. See Cars and Car Supply, VI. §21. Formal Proceedings. See Procedure Before Commission, §1 (h), §2 (g), (h), (q), (t), (u), (w), (x), (bb), (cc), (nn); Claims, §7. (a) Reparation will not ordinarily be awarded in formal cases unless intent to demand reparation is specifically dis- closed before submission of the case. UU- man v. American Express Co., 19 I. C. C 354, 355. (b) Where a complaint seeking rep- aration is not supported by expense bills, or other evidence, and there is nothing before it to find as a fact that the ship- ments actually moved or that the charges were collected as claimed, reparation can- not be awarded even though the allega- tions are admitted by the carrier. Inter- national Harvester Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 222, 223. (c) Where a shipper claims repara- tion on the ground that he was furnished a larger car than the one ordered, but has no written evidence of the order given by him and the evidence as to the kind of car actually ordered is conflict- ing, reparation will be denied. Pope Mfg. Co. v. B. & O. R. R. Co., 17 I. C. C. 400, 403. (d) While a long course of dealing be- tween the shipper and the carrier involv- ing daily or frequent shipments of auto- mobiles from a definite station might so familiarize the carrier's agents at thai point with the requirements of the shipper in the way of equipment as to justify a holding that an order for a car for three automobiles was sufficient to charge the carrier with notice that a 36- ft. car was wanted, such a relationship between shipper and carrier must be clearly made out before reparation can be awarded on that basis for the exaction by the carrier of the minimum for a larger car than the one alleged to be ordered. Pope Mfg. Co. v. B. & O. R. R. Co., 17 I. C. C. 400, 403. (e) On a claim for reparation based upon the alleged unlawful exaction of demurrage, the charges being dependent upon a question of fact in each instance, in the absence of specific proof as to each car, the Commission could not make the award. Murphy Bros. v. N. Y. C. & H. R. R. R. Co., 17 I. C. C. 457, 459. (f) Where a complaint attacking a rate is not accompanied by a claim for reparation, and the Commission estab- lishes a lower rate for the future, its findings are not to be understood as forming a basis for a subsequent claim of reparation. Minneapolis Thresh. Mach. Co. V. C. St. P. M. & O. Ry. Co., 16 I. C. C. 193. 194. 746 REPARATION, §21 (g)— §23 (b) (g) Where, under a complaint seeking reparation, complainant asks leave to amend so as to include another ship- ment, but fails to file its amendment, and the record shows that the charges complained of were in fact never paid by complainant, the matter of reparation on such other carload is not before the Com- mission for determination. Bluff City Oil Co. V. St. L. I. M. & S. Ry. Co., 16 I. C. C. 296, 297. (h) Complainant asked for an order directing defendant suburban railway to establish through rates on its line run- ning part of ihe way from Newfane, N. Y., to Pittsburg, Pa., and prayed for reparation on a certain shipment of ap- ples between said points. Defendant thereafter filed a tariff satisfactory to complainant, which consented to a dis- missal of its complaint respecting same. Complainant stated that it was not at present prepared to establish its claim for reparation for many other shipments over defendant's line, and defendant denied the charges for said shipments were excessive. HELD, the complaint might be dismissed without prejudice to complainant's right to file claim for reparation at a l:.ter date. Long & Co. v. International Ry. Co., 14 I. C. C. 116, 117. (i) Proceedings for reparation before the Commission for indemnitory demages are purely statutory and correspond to actions at law sounding in tort. If an injury is sustained on account of a viola- tion of law the proceeding is in its nature ex delicto, and. therefore, carries with it none of the features or incidents of an action ex contractu. No protest is neces- sary where an injury is inflicted by the commission of a tort. The violation of the law produces the injury and com- pletes the offense, and the person injured does not have to perform any conditions to entitle him to recover for the damage sustained. Southern Pine Lumber Co. V. S. Ry. Co., 14 L C. C. 195. (j) Where a shipper in a proceeding before the Commission has proven the granting of undue preference in wharfing privileges by defendant terminal com- pany, but has failed to submit sufficiently specific evidence of loss in his claim for reparation, the Commission will allow him additional time for putting in such proof. Carl Eichenberg v. S. P. Co., 14 1. C. C. 250. 271. §22. Informal Proceedings. See Claims, II. (a) No reparation will be awarded on informal proceedings which would not be awarded under the same set of facts in z contested case, and in face of the de- fendant's opposition, instead of its ad- mission. The Commission cannot accept as conclusive any stipulation of parties as to the reasonableness of a rate or a transportation regulation. The Commis- sion's conclusions on such matters must be reached with a due consideration for the conclusions which it has already an- nounced On the same subject, and for the knowledge which it has gathered with relation thereto in other cases and in- vestigations. The willingness of a ship- per to receive and of a carrier to pay reparation upon certain traffic, or under certain rates, can be approved by the Commission only under a clear and de- cisive showing of facts which would lead the Commission to award that reparation, in opposition to that carri:3r's wishes, and under which it would also award reparation to all others who might have shipped during the same period under the same rate and under substantially similar circumstances and conditions. Swift & Co. v. C. & A. R. R. Co., 16 I. C. C. 426, 428. (b) Proof for reparation should con- sist of a verified statement by complain- ant, si owing date and weight of the shipmc ,ts, date of payment and the reparation claimed. Robertson Bros. v. M. P. Ry. Co., Unrep. Op. 126. §23. Court Pleadings. See Act to Regulate Commerce, IV (a). (a) In a suit in a state court to re- cover reparation for unjust discrimina- tion, the court is not required by section 14 of the Act, in order to make the reports of the Commission competent evidence, to take judicial notice of the decisions of the Commission where they are not men- tioned in the pleadings or in the agreed statement of facts. This provision makes the decisions of the Commission as pub- lished admissible in evidence without other proof of their genuineness, but does not relieve litigarts from the neces- sity of offering them in evidenc j. Robin- son V. B. & O. R. R. Co., 2?2 U. S. 506, 512, 32 Sup. Ct. 114, 56 L. ed. 288. (b) In a suit in a United States Cir- cuit Court to recover the excess of REPARATION, §21 (c)— RESTRICTED RATES, I (a) 747 freight charges exacted above the pub- lished rate, the declaration failed m terms to state the particular rates that had been passed upon by the Interstate Commerce Commission but indicated that it was the purpose of plaintiff by reference to incorporate the pertinent facts of the decisions into the declara- tion, HELD, in determining the suffi- ciency of the declaration upon demurrer, the court might examine the facts set out in the decisions referred to. Phillips Co. V. G. T. W. Ry. Co., 195 Fed. 12, 16. (c) Under section 14 of the Act re- quiring the Commission in case damages are awarded to include in its report the findings of fact on which the award is made and under section IG of the Act providing that, in a suit to recover in a United States Circuit Court the excess charge, the suit shall proceed in all re- spects like all civil suits for damages ex- cept that the finding and order of the Commission shall be prima facie evidence of the facts therein stated, any order of award, conclusion, opinion or argument 'Of the Commission must be eliminated in determining the sufficiency of a dec- laration which includes said report, since it is only facts found by the Commission and alleged in the declaration that can be considered in deciding whether or not a cause of action is stated. Darnell- Taenzer Lumber Co. v. S. P. Co., 190 Fed. G59, 663. (d) Where in an action at law for damages, a count from the declaration sets forth facts showing a right of action to recover for unlawful discrimination under the Act of Feb. 4, 1887, and in- cludes also insufficient allegations for the purpose of making defendant liable for triple damages under the Sherman Act of July 2, 1890, such allegations will be treated as surplusage on demurrer, and the count sustained as alleging a cause of action under the Act of 1887. American Union Coal Co. v. Penn. R. R. Co., 159 Fed. 278, 279. REPORTS. CROSS REFERENCES. See Common Carrier, §3 (b), (c), (cc); Interstate Commerce, §4 (k) ; Procedure Before Commission. §18 (a); Water Carriers, §2 (a), (b). I. JURISDICTION OF COMMISSION. (a) In passing section 20 of the Act giving the Commission authority to pre- scribe an accounting system and to re- quire reports of carriers covering both interstate and intrastate business. Con- gress did not exceed its i-ower under the commerce clause of the Constitution. L C. C. v. Goodrich Co., 224 U. S. 194, 214; 32 Sup. Ct. 436, 56 L. ed. 729. (aa) Under section 20 of the Act as amended by the Act of June 18, 1910, the Commission has power to require the car- riers engaged in interstate commerce to make monthly reports of instances of service in excess of the time allowed, provided a separate form of oath is ac- cepted in lieu of such reports in cases where no employe has been employed in excess of the time named in the Act. B. & O, R. R. v. I. C. C, 221 U. S. 612, 620, 31 Sup. Ct. 621, 55 L. ed. 878. (b) An order of the Commission un- der the Act as amended requiring the secretary or similar officer of carriers en- gaged in interstate commerce to make monthly reports of violations of the re- strictions as to hours of service of em- ployes is not in violation of the 4th and 5th amendments of the Constitution relat- ing to unreasonable search and seizure and self-crimination. B. & O. R. R. v. I. C. C, 221 U. S. 612, 622, 31 Sup. Ct. 621, 55 L. ed. 878. (c) Section 20 of the Act merely au- thorizes the Commission to require re- ports from common carriers and owners engaged in interstate commerce and in the absence of such an order by the Com- mission, mandamus will not lie to compel carriers to make such reports. U. S. v. Union S. & T. Co., 192 Fed. 330, 343. (d) Under section 20 of the Act au- thorizing the Commission to require re- ports from owners of railroads, a lessor of a railroad is an owner within the meaning of the provision. U. S. v. Union S. & T. Co., 192 Fed. 330, 340. RES ADJUDICATA. See Evidence, V. RESTRICTED RATES. See Discrimination, Privileges, §11. i; Facilities and I. LEGALITY. (a) Rates on coal which are applica- ble only to shipments of certain consign- ors or consignees, condemned. In Re Restricted Rates, 20 I. C. C. 426. 748 RESTRICTED RATES, I (b)— ROUTING AND MISROUTING. (b) A tariff providing for reduced rates on coal used for steam purposes or that the carrier will refund parts of the regular tariff charges on presentation of evidence that the coal was so used is im- proper and unlawful, because the carrier has no right to attempt to dictate the uses to which commodities transported by it shall be put in order to enjoy a transportation rate. In Re Restricted Rates, 20 I. C. C. 426, 427. (c) Where the stock in one railway company is owned by another railway company, but both maintain separate or- ganizations and report separately to Commission, they may not carry freight free for each other. In Re Restrictel Rates, 20 I. C. C. 426, 427. (d) A lease by a carrier of trackage rights over a connecting line to a quarry for hauling ballast for use on its own line cannot be sanctioned, as such a course would result in discrimination. In Re Restricted Rates, 20 I. C. C. 426, 428. (ef) A carrier may not lawfully trans- port free or at reduced rates materials for building, or repairs on, a refrigera- tion plant built under contract with the carrier, but which also engages in com- mercial ice business. In Re Restricted Rates, 20 I. C. C. 426, 428. (g) The Commission would not sanc- tion an arrangement for a lease by a carrier of trackage right over a connect- ing line to quarry for the purpose of haul ing from that quarry with its own crew and equipment ballast for use on its line, such arrangement being regarded as de- vice to evade lawful rates. In Re Re- stricted Rates, 20 I. C. C. 420, 428. (h) Persons and commodities trans- ported for use in serving others than pas- sengers and employes may not lawfully be carried except under regular tariff rates. In Re Restricted Rates, 20 I. C. C. 426, 428. (i) It is unjustly discriminatory against dealers on its line for an inter- state carrier to operate a commissary car. In Re Restricted Rates, 20 I. C. C. 426, 428. (j) Discrimination would necessarily result from a lease by an interstate car- rier of the trackage rights over connect- ing line to a quarry for the purpose of hauling with its own crew ballast for use on its line. In Re Restricted Rates, 20 I. C. C. 426, 428. (k) A carrier has the unquestioned right to haul its own property on its own rails. In Re Restricted Rates, 20 I. C. C. 426, 431. (1) The local rate to a junction point should be the same for all shippers to that point, and the through charge on shipments going beyond that junction should be alike for all shippers to the same destination. In Re Restricted Rates, 20 I. C. C. 426, 434. (m) Restricting rates to a certain con- signee or when commodity is put to a particular use constitutes unjust dis- crimination. In Re Restricted Rates, 20 I. C. C. 426, 437. (n) Tariffs which contain rates ap- plicable only to the shipment of certain consignees, or when a commodity is put to a particular use and the rates which are so restricted to the use of certain shippers and not open to all shippers alike are in violation of section 2 of the Act, and unjust discrimination in viola- tion of section 3 of the Act, and therefore' unlawful. In Re Restricted Rates, 20 I. C. C. 426, 437. RETURNED SHIPMENTS. See Reduced Rates, §5. REVENUES. See Evidence, §36. ROUTING AND MISROUTING. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. CARRIER'S DUTY TO TRANS- PORT. §2. Accustomed or natural route. §3. Conflict in billing between rate and route. §4. Direct and reasonable route. §5. Lower rate via competing line. §6. Right of carrier to route. §7. Shipper's instructions. Til. LIABILITY FOR MISROUTING. §8. Purden of proof. §9. Measure of damages. §10. Parties to make refund. CROSS REFERENCES. See Branch Lines, §5; Express Com- panies, V; Through Routes and Joint Rates, §6. ROUTING AND MISROUTING, §1 (a)— §2 (c) 749 I. CONTROL AND REG^JLATION. §1. Jurisdiction of Commission. See Refrigeration, §1 (b). (a) The Act confers upon the Com- mission jurisdiction over a complaint for the recovery of the damage resulting from misrouting a shipment, where such damage arises from a rate or charge in excess of the lawful rate or charge that would have applied via the route over which the shipment probably should have moved, or movement over which was specifically directed by the shipper. Reparation awarded on a carload of staves which moved from Monette, Ark., to Jackson, Mich., via Thebes, 111., and Altamont, 111., instead of St. Louis, as directed by complainant. Noble v. J. L. C. & E. R. R. Co., 20 I. C. C. 520, 522. (b) The Commission intervenes in routing cases only when actual trans- portation charges accrue, either as the result of the failure of the carrier to obey the shipper's routing instructions or where, in the absence of Luch instruc- tions, a more expensive route is used by the carrier than is available. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. 443, 445. (c) The Commission has jurisdiction to award reparation for the diversion of a shipment by a connecting carrier, so as to inflict upon the shipper a higher rate than the joint rate by the route over which he routed his shipment, such jurisdiction arising by necessity from the provisions of section 6 of the Act. Wood- ward & Dickerson v. L. & N. R. R. Co.. 15 I. C. C. 170, 172; sustained, 187 Fed. 874, 191 Fed. 705. (d) The Commission has, under sec- tion 6, jurisdiction to award damages for the diversion of a shipment from the route prescribed by the consignor. Wood- ward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 172. II. CARRIER'S DUTY TO TRANS- PORT. See Discrimination, §9 (j). §2. Accustomed or Natural Route. See Crimes, §11 (a). (a) If a foreign car is available, which under rules as to car service must be sent via a particular line or route, over which a higher rate obtains, the agent must explain that fact to the shipper and allow him to elect whether he will use that car at the higher rate or wait for another car. If the shipper elects to use the car at the higher rate, the agent should so note on the bill of lading. When this rule is not complied with, the carrier is liable for misrouting. Lord & Bushnell Co. v. M. C. R. R. Co., 22 I. C. C. 463. (b) It cannot be denied that the cost of transportation is a potent factor in determining the route which traffic will t^ke. If confronted by increased rates via routes over which it has been accus- tomed to move, it will naturally seek other outlets. Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C. 596, 598. (c) Complainant had shipped a car- load of molasses, Philadelphia, Pa., to Buffalo, N. Y., under a rate of 16c per 100 lbs. Consignor in the blank on the bill of lading for the route noted "D. L. & W. R. R." The initial carrier, the Penn. R. R., instead of delivering the car to the D. L. & W. R. R., at Manunka Chunk, Pa., carried it over its own line to Buffalo and there delivered it to the D. L. & W. R. R., which switched it to the warehouse. The D. L. & W. R. R. unloaded carload freight at Buffalo free of charge when it had a line haul. As it did not have in this case, the warehouse company collected $6.50 for its services. Defendant competed with the D. L. & W. R. R. for Buffalo traffic, and itself gave a free unloading service at Buffalo over the platform of another warehouse. HELD, defendant is fairly chargeable with notice of the free unloading and handling service at that point of its competitor. The nota- tion by the consignor in the blank of the bill of lading intended for the naming of a route must be regarded as an expres- sion of the consignor's intention that the D. L. & W. R. R. was to participate in the line haul. When a line haul by one company is intended and a terminal de- livery is desired on the tracks of an- other company the usual practice is to indicate on the bill of lading that tho reference is for delivery purpose only; that the D. L. & W. R. R. should have been utilized for the best interests of the shipper; that the shipment was mis- routed. Reparation awarded of unload- ing charges, the rate exacted having been the same if the D. L. & W. R. R. had participated in the line haul. Pren- tiss & Co. V. Pa. R. R. Co., 19 I. C. C. 68. 750 ROUTING AND MISROUTING, §2 (d)— (k) (d) A notation on the bill of lading puts the carrier under obligation to use the connecting line's facilities to the best advantage of the shipper. Prentiss & Co. V. P. R. R. Co., 19 I. C. C. 68, 69. (e) A carrier may be chargeable with notice of free unloading and handling service of its competitor at a terminal. Prentiss v. P. R. R. Co., 19 I. C. C. 68, 69. (f) Complainant shipped lumber in carloads from Hertford, N. C, to Ashland, O., with no routing instructions except Erie delivery, under a rate of 27iAc; via a more direct route the rate was 20 %c. The defense made was that the principal defendant was not advised of the rates of its connection and could not reason- ably be required to keep its local agents informed of the through charges to dis- tant points of destination. HELD, this cannot be accepted as a sufficient excuse upon the facts here disclosed. With re- spect to this point of origin the destina- tion in question is not fairly to be re- garded as a distant point, but is located in territory as to which the principal de- fendant ought to be more or less well informed in order to conduct its trans- portation with reasonable dispatch ana satisfaction to itself and the public. Not being advised to the cheapest available and reasonably direct route it could have demanded instructions from the con- signor, could have made inquiry of the connecting lines, but not having done so it assumed the burden of giving the shipper the advantage of the cheapest reasonably available route. Reparation awarded. Willson Bros. Lumber Co. v. N. S. R. R. Co., 19 L C. C 293. (g) An initial carrier is not liable for misrouting for not routing via an Ohio River crossing, using as a factor a spe- cial commodity rate south of the river, the initial carrier not being a party to the rates named by the line south of the river. Isbell & Co. v. L. S. & M. S. Ry. Co., 19 L C. C. 448. (h) Complainant shipped dried beans L. C. L. from Springport, Mich., to An- niston. Ala., over lines of defendant L. S. & M. S. and C. C. C. & St. L. railroads to Cincinnati, thence via the L. & N. R. R. to destination, under a combination rate of 80c per 100 lbs. Between the points mentioned no joint through rate was ap- plicable nor did the tarilTs of defendants provide any method for constructing a through rate. The shipment could have moved either through Cincinnati or Louis- ville and via Louisville the ordinary com- bination was 82c. At the time of move- ment there was in effect from Louisville to Nashville via the L. & N. R. R. a spe- cial commodity rate of 16c and from Nashville to Anniston a class rate of 41c. By using the three factors of the local rate from Springport to Louisville of 19c, the special commodity rate from Louis- ville to Nashville and the class rate from Nashville to Anniston, a combination of 76c could have been made. While the shipment was delivered to the initial car- rier without any routing instructions, complainant or its agent prepared the bill of lading, presented it to the agent of the carrier at Springport and desired to prepay the freight charges through to Anniston. The rate of 80c was then in- serted in the bill of lading, as were also the total charges based on this rate. This was paid by the complainant. The initial carrier contended that it sent the ship- ment via the cheapest reasonable route known to it, and that it was not aware of the special commodity rate between Louisville and Nashville, and the class rate from Nashville to Anniston. The dis- tances via both gateways are approxi- mately the same. HELD, that the initial carrier was not guilty of misrouting the shipment. Isbell & Co. v. L. S. & M. S. Ry. Co., 19 L C. C. 448, 450. (i) Where the lines are designated but the shipment did not follow the ac- customed route via those lines, a case of misrouting is presented. Platten Produce Co. V. K. L. S. & C. Ry. Co., 18 I. C. C. 249. (j) Where a waybill on a carload of grapes shipped from Paw Paw, Mich., to Green Bay, Wis., issued by the Kalama- zoo, Lake Shore & Chicago Ry. Co., speci- fies the routing as via the Pere Marquette and the Chicago, Milwaukee & St. Paul, the usual and natural route for the ship- ment is to move across the lake by car ferry. Platten Produce Co. v. K. L. S. & C. Ry. Co., 18 I. C. C. 249, 249. (k) A carload of grapes from Paw Paw, Mich., to Green Bay, Wis., was routed on the waybill issued by the ini- tial carrier via the Pere Marquette and the Chicago, Milwaukee & St. Paul Ry. Co. Under this routing the usual and natural route was across the lake by ferry. Upon receiving the shipment from the initial carrier the Pere Marquette moved the same via Chicago and sub- ROUTING AND MISROUTING, §2 (1)— §3 (d) 751 jected it to a 65c rate, whereas by the route specified the rate was 33i/^c. HELD, complainant was entitled to rep- aration against the Pere Marquette R. R. on the basis of 33y2C for misrouting. Flatten Produce Co. v. K. L. S. & C. Ry. Co., 18 I. C. C. 249, 250. (1) A carload of grapes from Mon- trose, la., to Rochester, Minn., moved over the C. B. & Q. R. R. to Burlington, la., thence over the C. R. I. & P. P./. to Goldfield, la., and thence to destination over the C. & N. W. R. R. No through rate was applicable via this route and the sum of the locals, 77.09c, was collected. At the same time a through rate of 30c was in effect over the C. B. & Q. R. R., Montrose to Galena Junction, 111., arid thence over the C. Gt. W. Ry. to Roches- ter, and also over the C. B. & Q. R. R. to Sterling, 111., and thence over the C. & N. W. Ry. to Rochester. The original bill of lading was lost. Complainant's copy showed the shipments billed to Rochester "via Bur." The evidence of complainant's witnesses was that codj- plainant did not route the shipment. De- fendant's agent testified that against his protest complainant insisted on the rout ing via the course the shipment moved. Had defendant initial carrier routed the shipment by Galena Junction or Ster- ling, it would have received a g -.-eater portion of the haul than over the route shipment moved. On other shipments prior to this, the complainant had routed via the course taken by the shipment in question. HELD, the evidence was not sufficient to show that defendant initial carrier, the C. B. & Q. R. R., misrouted the shipment. Reparation denied. Gam- ble-Robinson Commission Co. v. C. B. & Q. R. R. Co., 18 I. C. C. 357, 359. (m) A carload of posts from Witten- berg, Wis., to Whittemore, la,, was routed by defendant, C. & N. W. Ry., via Mil- waukee, this route taking arate of 26i/^c. There were several other routes taking a lower rate, but the route selected was the nearest and most convenient junction point, and was the natural and ordinary one. The agent at Wittenberg, routing the shipment, did not have in his pos- session, and could not be reasonably ex- pected to have, all the tariffs showing other possible routings. HELD, no duty rested on the initial carrier to hunt up without the aid of an Iowa distance tariff some unnatural connection by which the traflic might reach its destination at a slightly lower transportation charge. Reparation denied. Wheeler Lumber, Bridge & Supply Co. v. C. M. & St. P. R. R. Co., 16 L C. C. 525, 527. §3. Conflict in Billing Between Route and Rate. See Bills of Lading, §9 (1); Export Rates and Facilities, II; Through Routes and Joint Rates, III. (a) Where the shipper's bill of lad- ing contains instructions both as to route and rate, and the rate is not applicable over any route of the receiving carrier, but is applicable over the route of a rival carrier to which the shipment might have been delivered, the receiving carrier may forward the shipment over its own line at the lowest rate lawfully applicable, it not being obliged to turn the traffic over to its competitor. McLean Lum- ber Co. V. L. & N. R. R. Co., 22 1. C. C. 349. (b) Where a shipper has written spe- cific routing instructions in the bill of lading, and also inserted a rate which does not apply over the route specified, it is the duty of the initial carrier to send the shipment via the route over which such rate does apply. This rule does not apply, however, so as to charge the in- itial carrier with misrouting where it fails to turn over the shipments to a competing carrier with a lower rate, Mc- Lean Lumber Co. v. L, & N. R. R. Co., 22 I. C. C. 349, 351, 352. (c) Where a consignor specified both rate and route in the bill of lading and the rate was not applicable to the route, the initial carrier should obtain definite instructions before forwarding or is liable for damages for misrouting. Ludowici- Celadon Co. v. M, P. Ry. Co., 22 I. C. C. 588. (d) Complainant alleged that an un- reasonable rate was charged by the de- fendants for the transportation of one carload of roofing tile, roofing felt, ce ment and nails from Coffeyville, Kan., to Spokane, Wash. Claim for reparation was based on the failure by the initial carrier to forward the shipment over the route via which the rate designated by complainant in bill of lading was ap plicable. The rate designated did not ap ply over route specified, but was in effect between Coffeyville and Spokane at the time of shipment via several other routes in connection with defendant. The car rier, without obtaining further instruo 752 ROUTING AND MISROUTING, §3 (e) — (1) tions, forwarded shipment over the route named in the bill of lading. HELD, that the carriers, having sent goods over a route via which a higher rate than the one designated by complainant was ap- plicable, must be held responsible for the damages resulting from misrouting. Rep- aration awarded. Ludowici-Celadon Co. V. M. P. Ry. Co., 22 I. C. C. 588, 589. (e) Where billing instructions were given to protect a through rate, which, however, would not apply via the speci- fied route, and the carrier without in- quiry forwarded the shipment via the route named whereby the shipper suf- fered damage, reparation should l-e awarded. Gibson Fruit Co. v. C. & N. W. Ry. Co., 21 I. C. C. 644. (f) Complainant shipped a carload of apples from Sioux City, la., to Chicago, and thence reconsigned to New Orleans, La., which was assessed a combination rate of 62c. Contemporaneously there was in effect via the C. & N. W. Ry., the initial carrier, and the C. & E. L R. R. conflicting joint through rates of 42c and 39c. The reconsignment order in part r€ad: "Route via Illinois Central. Pro- tect through rate of 42c cwt." HELD, the obligation rests upon the carrier's agent to refrain from executing a bill of lading which contains provisions that are contradictory or impossible of execution. When, therefore, the rate and route are both given by the shipper in the shipping instructions and the rate given does not apply via the route designated, it is the duty of the carrier's agent to ascertain from the shipper whether the rate or the route given in the shipping instructions shall be followed. This not having been done, reparation is awarded, on the basis of 39c. Gibson Fruit Co. v. C. & N. W. Ry. Co., 21 I. C. C. 644, 645. (g) Complainant shipped cotton lin- ters, from Barnwell, S. C, to Pawtucket, R. I., under a rate of 78i^c per 100 lbs. Prior to shipment complainant inquired of initial carrier the lowest rate and was told that when value was limited to 2c per lb. the rail-and-water rate was 53c and the all-rail rate 54c. Thereupon com- plainant made out its own bills of lading reading ''all-rail 53c" and the bills of lad- ing were signed by the agent of the car- rier with full knowledge on his part that the shipper desired the rate on cotton linters released to a valuation of 2c per lb., but neglected to indorse upon them any notation of the released valuation. HELD, it was the duty of the defendants to have secured the shipper's signature to the released valuation clause; that the proper rate to have applied was 54c. Reparation awarded. Southern Cotto'i Oil Co. V. Sou. Ry. Co., 19 1. C. C. 79. (h) Complainant shipped cement in carloads from Martins Creek, Pa., to Brockton, Mass. Complainant's shipping clerk inadvertently noted on the bill of lading directions to forward the cars via the L. v., W. S., and B. & A. railroads. In two places on the bill of lading the through rate was stated at $2.25 per net ton and this was the legal joint rate over a through route composed of the principal defendant line in connection with the N. Y. N. H. & H. R. R. and certain inter- mediate lines. HELD, that in view of the conflict between the routing instructions and the through rate as specified on the bill of lading it was the duty of the ini- tial carrier to forward the shipment by the cheaper route or to obtain further and definite directions from the consignor. Because of its failure to pursue either course it must be held liable to the com- plainant for the additional transporta- tion charges resulting from the misrout- ing. Alpha Portland Cement Co. v. D. L. & W. R. R. Co., 19 I. C. C: 297, 298. (i) Rate inserted by the consignor in bill of lading was not applicable ever the route named by him, but was applicable over another route. HELD, that the ini- tial carrier, instead of forwarding the shipment over the route specified, which carried a higher rate, should have for- warded it over the route by which the specified rate applied. Isbell-Brown Co. V. G. T. W. Ry. Co., Unrep. Op. 226. (j) Routing prescribed in bills of lad- ing named railroads via which there were two available routes, one carrying a higher rate than the other, and initial carrier routed the shipments via the more expensive route. Reparation awarded. Lair Furniture & Undertaking Co. v. N. Y. C. & H. R. R. R. Co., Unrep. Op. 404. (k) Two points in state by same name, although in different counties. Correct rate and route inserted in bill ot lad- ing, but sent to wrong destination. Reparation awarded. lola Portland Ce- ment Co. V. M. K. & T. Ry. Co., Unrep. Op. 444. (1) Lower rate inserted in bill of lad- ing, but delivered to carrier having higher rate in effect. No L'l'ound for ROUTING AND MISROUTING, §4 (a) — (1) 753 reparation. Wilkoff Bros. Co. v. P. & L. E. R. R. Co. Unrep. Op. 467. §4. Direct and Reasonable Route. (a) Where the initial carrier accepts a shipment over a specified route, it is liable for damages for diverting same to another route taking a higher rate and is not relieved from such liability by the fact that the connecting carrier in the specified rgute refuses to accept the ship- ment. L. & N. R. R. Co. V. Dickerson, 191 Fed. 705, 710. (b) Unless a carrier with a circuitous route is willing to submit to conditions made necessary by its competitors pos- sessing shorter hauls, it should retire from the business. Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 678. (c) Where a rate, formerly applicable via two routes, was subsequently limited to a single route, and the initial carrier failed to point out to complainant that the lower rate applied only via one route and that such rate had been withdrawn from the route designated by complain- ant, damages should be awarded. Atlan- tic Refining Co. v. B. & O. R. R. Co., 23 I. C. C. 492. (d) On carloads of watermelons from Blodgett, Mo., to St. Joseph, Mo., a rate of 18c was charged, via an interstate route. Had melons been shipped by an intrastate route, the charges would have been considerably less. No specific rout- ing instructions were given. HELD, the defendant's duty was limited to forward- ing the shipment via the cheapest avail- able interstate route, and that the rate complained of was not shown to be un- reasonable. Willman & Co. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 405. (e) In the absence of routing instruc- tions it is the duty of the carrier to for- ward the shipment via the cheapest avail- able interstate route. It does not neces- sarily have to transport it via an avail- able intrastate route subject to state rates the validity of which it contests and which appear low. Willman & Co. v. St. L. I. M. & S. Ry. Co., 22 I. C. C. 405, 406. (f) On a carload of lumber from Sum- rail, Miss., to Dayton, O., complainant was charged a rate of 27i^c per 100 lbs. There was another route on which the charges would have been 24c per 100 lbs. No routing instructions were given on the bill of lading. Defendant explained that there was a shortage of freight cars in the territory which made it necessary to use the more expensive route. Tariff Cir- cular 15A, Rule 70, required the agent -to explain to shipper the situation, and al- low him to choose whether he will use the car at the higher rate, or wait for another one, and note on the bill of lad- ing the choice of the higher rate that it made. Bill of lading showed no nota- tion. HELD, it was the duty of the car- rier to forward the shipment over the route by which the lower charges would be secured. Reparation granted. Lord & Bushnell Co. v. Mississippi Central R. R. Co., 22 I. C. C. 463. (g) Where more than one route is available for forwarding a shipment, it is the duty of the carrier, in the absence of routing instructions, to forward it by the route taking the lowest rate. Lord & Bushnell Co. v. M. C. R. R. Co., 22 I. C. C. 463. (h) It is the duty of the carrier in the absence of specific routing instructions by the shipper to transport the shipment via the cheapest available route. Good- kind Bros. V. C. I. & L. Ry. Co., 21 I. C. C. 17. (i) A route via one road which is about twice as long as via the more di- rect route is a circuitous route. Winter- botham & Sons v. M. P. Ry. Co., 21 I. C C. 266, 269. (j) A route several hundred iriles greater than another available one be- tween the same points canri-jt be con- sidered the more natural route for a shipment to take. Kenworthv & Son v. U. P. R. R. Co., 21 I. C. v". 515, 516. (k) Complainant shipped lumber from Dungannon, Va., to Maugansville. Md., and thence reconsigned to Boston, Mass. The initial carrier routed the shipment via Potomac Yards, Va., and Harrisburi?, Pa., a distance of 792 miles, as against a distance of 3C4 miles via another available route. HELD, that a shipment is misrouted when it fails to take a route which it properly should have taken, and which is the cheaper available route. Repara- tion awarded. Whaley-Warren Lumber Co. V. C. C. & O. Ry., 21 I. C. C. 530, 532. (1) Complainants shipped from sev- eral stations on line of defendants. New Orleans, M. & C. R. R., rough yellow pine lumber consigned to itself at Cypress, III., "care of Chicago & Eastern Illinois Rail- 754 ROUTING AND MISROUTING, §4 (m)— (t) road." Cypress is reached only via the C. & E. I. R. R., and to that point through routes taking the same rates are avail- able, one via Meridian, Miss., and the M, & O. R. R., and the other via Acker- man, Miss., and the I. C. R. R. No inter- mediate routing was designated by the shippers. The initial carrier routed via Ackerman and the I. C. R. R., which road carried the shipments to Marion, 111., the nearest junction with the C. & E. I. R, R., which refused to accept the cars unless accompanied by instructions for recon- signment. It was complainants' custom to reconsign its shipments to Cypress by giving the reconsignment instructions to the agent of the C. H. & D. R. R. at St. Louis, who would transmit such request to the C. & E. I. R. R. Subsequent to refusal of these shipments by the C. & E. I. R. R., reconsignment instructions were given by the agent of the C. H. & D. R. R. to the I. C. R. R. The shipments were transported, and, at destination, charges were assessed at a combination of joint rates based on Marion. The tariff naming the rates via the routed move- ment did not allow reconsignment at the through rate. HELD, two routes taking the same rates were available. The ini- tial carrier cannot be charged with knowl- edge of complainants' desire to reconsign the shipment, and in the absence of spe- cific routing by shipper the initial carrier was justified in routing these cars as it did. Reparation denied. Crescent Lum- ber Co. V. I. C. R. R. Co., 20 I. C. C. 228, 229. (m) There is no misrouting to for- ward an unrouted shipment via one route, though a reconsignment privilege was permitted over another available route. Crescent Lumber Co. v. I. C. R. R. Co., 20 I. C. C. 228 (n) It is not of much importance to the public by what route traffic is han- dled. Board of Trade of Chicago v. A. C. R. R. Co., 20 L C. C. 504, 507. (o) Reparation awarded for misrout- ing a shipment of grapes. Paw Paw, Mich., to Green Bay, Wis., via K. L. S. & C. R. R. and P. M. R. R., Paw Paw to Chicago, and via C. M. & St. P. R. R. to Green Bay instead of moving via P. M. Car Ferry to Milwaukee. Platten Produce Co. v. K. L. S. & C. Ry. Co., 20 I. C. C. 543. (p) It is no misrouting to forward an unrouted shipment via one route, though terminal delivery more satisfactory to consignee could have been secured over smother available route. Bookwalter Wheel Co. v. T. C. R. R. Co., 20 I. C. C 603, '605. (q) Complainant shipped one carload of rough hickory rim strips from Four- teen Mile Switch, Tenn., to Miamisburg, O., under a rate of 21i/^c per 100 lbs., without specifying the routing. The shipment was routed by the initial carrier and delivery tendered by C. H. & D. R. R. The consignee refused shipment be- cause not delivered by the Big Four R. R. The shipment was then switched to a point where connection could be made with the Big Four. The same rate applied from shippdng point to destination via Big Four delivery as via C. H. & D. R. R. HELD, that in the absence of routing in- structions by the shipper the carrier could exercise its own judgment in select- ing which of two equally available routes carrying the samfe rate it would use. Rep- aration on switching denied. Bookwalter Wheel Co. v. T. C. R. R. Co., 20 I. C. C. 603. (r) After an unrouted shipment had moved, an agent's signing the bill of lad- ing containing routing could not render the carrier liable for misrouting. Book- waiter Wheel Co. v. T C. R. R. Co., 20 I. C. C. 603, 605. (s) Instructions were given to use the most direct route with through rate; no rate was applicable from origin to desti- nation; the shipment was sent via a cir- cuitous route; the rate via the route used was not unreasonable, but repara- tion was awarded on the basis of a sub- sequently established rate via a more direct route. Samuels & Co. v. St. L. S. W. Ry. Co., 20 I. C. C. 646, 648. (t) Complainant directed a shipment of cotton linters, England, Ark., to Hous- ton, Tex., to be shipped by "most direct way to Houston, so we are protected in through rates." There was no lawful rate in effect on linters between these points and the rate assessed was composed of a combination rate of 48c on linters, Eng- land to New Orleans, plus a rate of 18c on compressed cotton, New Orleans to Houston, a circuitous route. Subse- quently a rate of 46^/^0 was established over a shorter route. It appeared that the shipment was held for three or four weeks by the initial carrier before being forwarded. HELD, during that time the carrier might have secured permission from the Commission to publish a rate ROUTING AND MISROUTING, §4 (u)— (aa) 755 from England to Houston on short notice, or by holding the linters for a short addi- tional period it might have published the rate on full statutory notice, and while it was under no legal obligation to adopt the former method it was certainly its duty to provide a rate via a reasonably direct route as soon as lawful publication thereof could be made. If the carrier was willing to take the responsibility of forwarding the shipment via a route over which no rate was published it ought to have sent it over a direct route. A reasonable rate having been subsequently established over a direct route, the ini- tial carrier should make reparation as for a misrouting between the charges ex- acted and such rate. Samuels & Co. v. St. L. S. W. Ry. Co., 20 I. C. C. 646, 648. (u) Complainant shipped cement in carloads from Medicine Lodge, Kan., to Spokane, Wash., under the joint class C rate of $1 per 100 lbs., but gave no rout- ing instructions. Two routes were avail- able, both carrying the same through rate, but via the other route the combina- tion of locals was lower than the through rate. The complainant did not allege that the rate exacted was unreasonalDle. HELD, that as the $1 rate was lawfully effective via both routes, the initial car- rier cannot be held guilty of misrouting, but leave given complainant to file an amended petition to attack the rate ex- acted. Idaho Lime Co. v. A. T. & S. F. Ry. Co., 19 I. C. C. 139. (v) A carrier is not liable for mis- routing for forwarding via a joint through route though a lower combination existed. Idaho Lime Co. v. A. T. & S. F. Ry. Co., 19 I. C. C. 139, 140. (w) Complainant shipped lumber in carloads from Davisville, Tex., to Santa Rita, N. M., without routing instructions except "care of Santa Fe at El Paso." The route taking the lowest combination was one via El Paso, but the initial car- rier did not route it that way. HELD, reparation should be awarded. Cattieron & Co. V. H. E. & W. T. Ry. Co., 19 I. C. C. 146. (x) Complainant shipped lumber in carloads from Saron, Tex., to Altus, Okla., under a rate of 33l^c. Prior to move- ment a joint rate of 28i^c had been in effect for some time, but was canceled about two months prior to the shipment because lines in Oklahoma and Kansas made excessive demands upon originat- ing lines for increased divisions. Sub- sequently the 281/^0 rate was restored, and later reduced to 25c. HELD, that at the time of shipment complainant was en- titled to a through rate of 28i/^c via the defendant and its connections over which the joint rate had formerly prevailed, and now prevails, and that it was the duty of the'defendant to have routed the ship- ment via that route. In point of fact it sent it by a different and much more ex- pensive route. Reparation awarded. Cameron & Co. v. H. E. & W. T. Ry. Co., 19 L C. C. 146. (y) Complainant shipped lumber, At- lanta, La., to Detroit, Mich., originally billed to Cypress, 111., "via Shreveport, care of the St. L. S. W. Ry. via Thebes, 111., care of Chicago & Eastern Illinois Ry." Initial carrier did not follow rout- ing instructions, but carried the car to Baton Rouge, which resulted in the exac- tion of a higher rate owing to subsequent misrouting by the I. C. R. R. HELD, that the I. C. R. R., which received from the Y. & M. V. R. R. without routing instructions a car of lumber moving from Atlanta to Cypress, was bound to forward it to that destination by the direct route over which to its knowledge the cheaper rate from Atlanta applied, and the I. C. R. R. had this knowledge, for it was a party to the cheaper joint rate. Beekman Lumber Co. V. Louisiana Ry. & N. Co., 19 I. C. C. 343, 345. (z) The fact that a carrier perform- ing substantially a switching service for- wards cars via the only available junc- tion point to destination at a higher rate than it had in effect via another route the rates of which, however, were restricted to industries and team tracks at the junc- tion point of such other route at which point it did not interchange traffic with the connecting carrier, does not render it guilty of misrouting or of exacting a charge in excess of the combination of locals. Prahlow v. L H. B. R. R. Co., 19 I. C. C. 572, 573. (aa) On gasoline stoves and parts from Lorain, O., to Oconomowoc, Wis., a rate of 86c was assessed, whereas at the time of movement there was in effect via defendants' lines the combination rate through Duplainville, Wis., of 61c. On Iron radiators, hot water heaters, and parts from Detroit, Mich., to Oconomo- woc, Wis., a rate of 51c was collected, whereas the combination rate through Duplainville yielded 39i^c. Duplainville 756 ROUTING AND MISROUTING, §4 (bb) — (kk) is situated on the main line of one of de- fendants, some 17 miles west of Milwau- kee and took jMilwaukee rates. HELD, defendants should have routed the ship- ment via Duplainville in order to give complainant the lower rates. Reparation awarded. Lorleburg Co. v. N. Y. C. & St L. R. R. Co., 18 I. C. C. 183, 184. (bb) If a shipper is in doubt as to the cheapest route, he should tender his ship- ment without instructions. Spreckels Bros. Commercial Co. v. Monongahela R. R. Co., 18 I. C. C. 190, 191. (cc) Where the initial carrier routes a shipment of coke so as to take a higher rate than another available route, no routing instructions being given by the carrier, it must make reparation for the overcharge. Spreckels Bros. Commercial Co. V. Monongahela R. R. Co., 18 I. C. C. 190, 191. (dd) A connecting carrier in sending a shipment delivered without routing in- structions by the consignor over a route taking a higher rate than the direct and reasonable route is liable to make repara- tion for the higher charge incurred and is not excused by the fact that the car- riers had not at the time of shipment agreed on the proper divisions of the joint rate over the direct route. Noble v. Toledo & Western R. R. Co., 18 I. C. C. 494, 495. (ee) A carload of lumber from Pro- vencal, La., to Santa Rita, N. M., was routed from Provencal to Texarkana, via the T. & P. Ry., Texarkana to Kansas City via the Iron Mountain lines, Kansas City to Santa Rita via the Santa Fe lines. The combination rate was $1.12, made up of 23c to Kansas City and 89c to destina- tion. The distance traveled was 1,970 miles. A more direct route of 1,076 miles existed, involving a proportional rate of 18c from Provencal to El Paso via the T. & P. Ry. plus a rate of 21c, El Paso to Santa Rita, via the Santa Fe, or a total of 39c. HELD, that the initial carrier was liable for the incurring of a higher charge through misrouting. Cameron v. T. & P. Ry. Co., 18 L C. C. 560, 561. (ff) Where carriers receive a ship- ment without routing instructions they should forward it over the cheapest route. Germain Co. v. N. O. & N. E. R. R. Co., 17 I. C. C. 22, 25. (gg) On 10 carloads of cattle from Baker City, Ore., to Tacoma, Wash., via Wallula, Wash., the published rate was $104.40 per car. At Pasco, Wash., the shipment was stopped on account of washouts making further progress impos- sible, and was then hauled back to Wal- lula for transportation via Portland to Tacoma. At Portland similar washouts prevented a prompt delivery. Ordinarily, the time of shipment was three days. In the present instance it required 11 days. Complainant was charged $93 in excess of the freight had the shipment moved as routed by complainant, and a feeding bill of $302.65 was assessed. HELD, the freight charges were excessive to the ex- tent of $93 and reparation awarded on that basis. Feeding charges held not to be excessive. Carstens Packing Co. v. O. R. R. & N. Co., 17 L C. C. 125, 127. (hh) Where there are two available combination rates over the route to be taken, the damages assessed should be he lowest combination. Contact Process Co. V. N. Y. C. & St. L. R. R. Co., 17 I. C. C. 184. (ii) Carloads of lumber from Caro, Tex., to Memphis, Tenn., were routed by the shipper over a route named in de- fendants' tariffs. Through an error in the tariffs no commodity rates were ap- plicable by that route. Complainant was assessed the class rate of 41c. HELD, complainant was entitled to reparation on the lowest possible combination applica- ble to the shipments, namely, 20c. Rep- aration awarded. Saner-Whiteman Lum- ber Co. V. T. & N. O. R. R. Co., 17 I. C. C. 290. (jj) Shipper in following routing in- structions in the tariff sent five carloads of lumber via a route over which there was no rate applicable except the class rate. HELD, the tariff being in error, the carriers' duty was to treat the shipments as though unrouted and to forward them via the junction making the lowest com- bination of rates. Saner-Whiteman Lum- ber Co. V. T. & N. O. R. R. Co., 17 I. C. C. 290. (kkj On shipments of lumber from Fostoria, Tex., to Gary, Ind., complainant gave routing instructions on part of the cars, directing shipment over certain car riers and delivery by the M. C. R. R. It was, in fact, impossible to make connec- tions with the M. C. R. R. over the route specified, and the car had to be diverted to another route involving additional charges. Two carloads were not routed by the complainant, and were sent over ROUTING AND MISROUTING, §4 (11)— (ss) 757 routes taking higher rates than other available routes. HELD, reparation should be awarded on the shipments where no routing instructions were given, but not on the shipments where -errone- ous routing instructions were given. Fos- ter Lumber Co. v. A. T. & S. F. Ry. Co.. 17 I. C. C. 292, .294. (11) In absence of specific through routing by the shipper, it is duty of the carrier to route shipments by cheapest reasonable route over which lawfully es- tablished rates are in force. Foster Lum- ber Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 292, 294. (mm) If a shipment moves to or from a point directly intermediate to the base upon which the lowest combination makes, such combination must be ap- plied; and it is not necessary to haul the shipment to such base point and back again to or through point of origin or des- tination. Crutchfield & Woolfolk v. L. & N. R. R. Co., 17 I. C. C. 302, 303. (nn) Carriers charged with exacting an unreasonable rate cannot escape lia- bility solely upon the ground that the shipments could have been transported via a route carrying a lower rate. If the rate was, in fact, unreasonable, defend- ants should be required to make repara- tion irrespective of the fact that the shipper would have enjoyed a lower rate if his shipments had moved through a different gateway. Williar v. C. N. Q. Ry. Co., 17 L C. C. 304. (oo) When a carrier has two or more available routes between two given points, the lowest rate via either or any of them must be applied to a shipment moving over either or any of said routes. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. 443, 445. (pp) A carload of sugar-beet pulp from Janesville, Wis., to Cattaraugus, N. Y., was routed by the complainant via the Erie Despatch. The initial car- rier, the C. & N. W. R. R., has two lines from Janesville to Chicago, the di- rect line, 91 miles in length, and the in- direct line through Waukesha and Mil- waukee, 162 miles in length. The initial carrier moved the shipment over the direct route to Chicago and charged 6.09c for the haul to Chicago and lie for the haul beyond. At the time of shipment an lie rate from Chicago to destination was in effect, and was also applicable to Milwaukee and Waukesha. The rate from Janesville to Waukesha was 3c, making a combination of 14c. Another carload was shipped by com- plainant from Janesville to Windber, Pa., which moved in the same manner. Complainant routed the car via Wauke- sha. On this car it was assessed on the basis of the distance rate of 4i/^c from Janesville. No through rates were in effect between the points in question. HELD, under Rule 215 of Conference Rulings Bulletin No. 4, with respect to the first car, the charge was unreason- able and complainant was entitled to reparation on the basis of 14c; with respect to the second car, the charges should have been assessed on the basis of the rate from Janesville to Wau- kesha and from Waukesha to destina- tion, the latter rate being the same as from Chicago to destination. Repara- tion awarded. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. 443, 445. 446. (qq) On a less-than-carload shipment of clothing from New York City to Janesville, Wis., complainant was as- sessed a total charge of $3.31. De- fendants' rates to Chicago and to Wau- kesha were the same, -75c. The pro- portional from Waukesha to Janesville was 28c. The shipments moved via defendant's through line to Chicago instead of via Waukesha and the Wau- kesha and the Janesville-to-Chicago di- rect line rate was used in making up the charge assessed. HELD, following Larrowe Milling Company v. C. & N. W. Ry., 17 I. C. C. 448, the charges should have been assessed on the Wau- kesha combination of $1.03 per 100 lbs. Reparation awarded. Amos Reh- berg & Co. v. Erie R. R. Co., 17 I. C. C. 508, 510. (rr) Where upon a shipment of a carload of cullet (broken glass) from New York City to Kane, Pa., no routing Instructions were given by complainant, and the defendant shipped the same by a route taking a 23i^c rate Instead of another available route taking an 18c rate, complainant is entitled to repara- tion on the basis of the total lower rate. Thatcher Mfg. Co. v. N. Y. C. & H. R. R. R. Co., 16 I. C. C. 126. 127. (ss) Where upon a shipment of oak lumber from DuQueen, Ark., to Mem- phis, Tenn., complainant gave no direc- tions as to routing except that delivery be made to the consignee at destination 758 ROUTING AND MISROUTING, §4 (tt)— (zz) on the rails of the I. C. R. R., and de- fendants selected a route taking a 3uc rate instead of another available one taking a 22c rate, delivery on the rails of the I. C. R. R. being possible by both routes, complainant is entitled to reparation on the basis of the lower rate. Hendrickson Lumber Co. v. K. C. S. Ry. Co., 16 I. C. C. 129, 129. (tt) On a shipment of tan bark from Trenary, Mich., to Milwaukee, the published rate of 19c was collected, the shipment having moved by the route directed by complainant. Another route carried a rate of 12c, and later de- fendants applied that rate to the route over which the shipment in question moved. HELD, the 19c rate was un- reasonable. Reparation awarded on the basis of 12c. Albert Trostel & Sons V. M. St. P. & S. Ste. M. Ry. Co., 16 I. C. C. 348. (uu) Where the shipper gave no specific routing instructions, it was the duty of the carriers to transport the shipments via the route carrying the low- est rate. Marshall & ]Michel Grain Co. v. St. L. & S. F. R. R. Co., 16 I. C. C. 385, 386. (vv) Carloads of corn from various points on the line of the St. L. & S. F. R. R. Co. in Missouri, Kansas and Okla- homa, destined to Gulf Port, Miss., were routed in the absence of routing instructions via the St. L. & S. F. R. R. to Memphis, thence via the G. & S. I. R. R., instead of via the Frisco lines to Memphis, the Y. & M. V. R. R. to New Orleans, and the L. & N. R. R. to Gulf Port, which latter route took a lower rate than the route selected. HELD, reparation should be awarded against the initial carrier on the basis of the charge over the lower route. Marshall & Michel Grain Co. v. St. L. & S. F. R. R. Co., 16 I. C. C. 385, 386; modified, 18 I. C. C. 228, 229. (ww) The haul via one route being more circuitous, it is not just to force carriers to meet a lower rate cover- ing a shorter haul via another route. Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 562, 563. (xx) On ground iron ore in carloads from Iron Ridge, Wis., to Michigan City, Ind., and from Iron Ridge to Louisville, Ky., the rate via the C. M. & St. P. R. R. from Iron Ridge to Milwaukee was 5c, from Milwaukee to Michigan City via the P. M. R. R. 8 1/20 and from Milwaukee to Louisville 15c, making the ]\Iilwaukee combination to Michigan City ISi/^c and to Louisville 20c. The joint through rate from Iron Ridge to Michigan City via Milwaukee and the P. M. R. R. was 21i^c, and to Louis- ville 251/^c. The rate from Iron Ridge to Michigan City via Chicago by the C. M. & St. P. R. R. and the Monon Ry. was the same as via Milwaukee, 21i^c, but the combination via Chicago was 18c. Complainant delivered a shipment to the C. M. & St. P. R. R. without routing instructions except verbal directions to forward by the cheapest route. The agent forwarded same via Chicago and the Monon Ry. At the time of hearing the only rate in effect to Michigan City was the com- bination rate of 13i/^c via INIilwaukee and 16i^c via Chicago. HELD, since the lowest rate lawfully applicable from Iron Ridge to Michigan City was that via the route over which the shipments actually moved, reparation must be awarded upon the rate deemed by the Commission reasonable via that route, and the carriers should not be forced to meet the lower rate covering the shorter haul via the P. M. R. R. Repa- ration awarded on the basis of the 161/^c rate in effect at the time of the hearing, via Chicago. On the ship- ment to Louisville reparation awarded on the rate in effect at the time of the hearing made on INIilwaukee com- bination, viz., 14.82c. Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 562, 563. (yy) On shipments of chestnut ties from Vanceburg, Ky., to Carroll Park Siding, Baltimore, the movement was via Huntington, W. Va., by direction of the consignor. A lower rate was in effect via Staunton, Va. HELD, in the absence of specific routing instructions a carrier is obliged ordinarily to carry a given shipment tendered via the route taking the lowest rate, but where a shipper directs the routing, it is the duty of the carrier to follow his in- structions. Reparation denied. Preston V. C. & O. Ry. Co., 16 L C. C. 565. (zz) Where a shipment is delivered without routing instructions, it is the duty of the initial carrier line to route via a junction which should have made the lowest combination of locals between ROUTING AND MISROUTING, §4 (aaa) — (jjj) 759 origin and destination. Hill & Webb v. M. K. «§: T. Ry. Co., 16 I. C. C. 569. (aaa) Where the delivering line did not concur in the rate published under which a shipment moved, resulting In an overcharge, due to misrouting, and its concurrence was filed subsequently, reparation should be awarded. Grand Rapids Plaster Co. v. P. M. R. R. Co., 15 I. C. C. 68. (bbb) It does not seem to be pro- vided in the law that one party to a joint rate and through route may di- vert freight at the expense of the ship- per Woodward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 174. (ccc) A carload of broom corn from Duncan, Okla., destined ultimately to Seattle was received by the defendant C. R. I. & P. R. R. and hauled to Wichita under a local bill to that point. At Wichita the consignee reconsigned the shipment to complainant at Seattle. The C. R. I. & P. delivered the car to the Burlington at St. Joseph instead of at Beatrice, Neb, A joint rate ol $1.25 was in effect from Wichita to Seattle over the Beatrice route, but none was in effect over the St. Joseph route and complainant was assessed $1.57i/^c, the sum of the locals into and out of St. Joseph. A joint rate of $1.25 was in effect from Duncan to Seattle via St. Joseph, but under such rate there was no lawfully published reconsignment privilege at Wichita. The shipment in question in fact moved un- der a reconsignment tariff issued by the C. R. I. & P. Ry. permitting storage at Wichita, which tariff contemplated a local movement from Wichita to Seattle via Beatrice and a refund to the ship- per. No routing instructions were given. HELD, the C. R. I. & P. R. R. was solely liable to make refund of the excess charge imposed by reason of the misrouting through St. Joseph. Wash. Broom & Woodenware Co. v. C. R. I. & P. Ry. Co., 15 I. C. C. 219,' 221. (ddd) Where carload shipments of wheat from Farmers, Brenner and Hast- ings, Neb., to Chicago, 111., were by mistake of the initial carrier routed via St. Joseph, Mo., at a rate of 35i/4c instead of via Omaha at a rate of 33ii,c, complainant is entitled to recover on the basis of the rate via Omaha. Mc- Caull-Dinsmore Co. v. C. G. W. Ry. Co., 14 I. C. C. 527. (eee) Complainant was charged a rate of 24c on grain products from Kansas City, Mo., to Howard, Wis. Defendants had established a joint rate from Kansas City to Albertville, Wis., via Waukesha of 14c, and should have routed the shipment via Waukesha, complainant having given no routing directions. Howard was an inter- mediate point. Since the shipment in question defendants established the 14c rate to Howard. HELD, complainant was entitled to reparation on the basis of the 14c rate. Wilson v. C. M. & St. P. Ry. Co., 14 I. C. C. 549, 550. (fff) A carload of coal was loaded at Cedarhurst, Colo., and delivered to defendant at Rugby, Colo., with a bill of lading destined to Carmen, Okla., no routing instructions being given. De- fendant sent same over a route calling for a $6.45 rate, whereas a $4.15 rate was in effect over another route. De- fendant's agent at Rugby testified that someone, to him unknown, instructed him by telephone to forward the car over the route he sent it. HELD, the agent had no right to accept routing instructions from an unknown person. Reparation awardad on the basis of the lower rate. Cedar Hill Coal & Coke Co. V. C. & S. Ry. Co., 14 I. C. C. 606, 607. (ggg) A carrier may in its own in- terest, if it so desires, carry for a longer distance over its line than would be necessary if carried between the same points over the line of its competitors. In order to obtain a portion of the com- petitive business upon terms that will afford some profit. It does not necessar- ily follow, however, that a carrier not competing for traffic in this way thereby subjects itself to an order com- pelling it to do so. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347. (hhh) In absence of routing instruc- tion, initial carrier routed shipments via the more expensive of two available routes. Reparation awarded. Caddell & Sons V. C. & S. Ry. Co., Unrep. Op. 117. (iii) Shipment tendered without rout- ing instructions. Forwarded via more expensive route. Reparation awarded. Foster Lumber Co. v. S. Ry. Co., Unrep. Op. 338. (jjj) Shipment delivered to carrier without routing instructions and sent via 760 ROUTING AND MISROUTING, §4 (kkk)— §6 (dd) route taking higher rate. Reparation awarded. Wheeler Lumber Bridge & Supply Co. V. N. P. Ry. Co., Unrep. Op. 469; Denton Lumber Co. v. S. Ry. Co., Unrep. Op. 426. (kkk) Complainant selected the higher of two available routes, and rates not having been found unreasonable, com- plaint dismissed. Williams v. G. N. Ry. Co., Unrep. Op. 460. (Ill) Shipment delivered to carrier without routing instructions, forwarded via route taking higher combination, no joint through rate in effect. Reparation awarded. Mason Fruit Jar <^o. v. M. K. & T. Ry. Co., Unrep. Op. 490. (mmm) Complainant had a choice of two routes, over one of which it might have shipped at the lower rate, but de- liberately chose the more expensive route. The record does not in(!icate that the rates charged were unreasonable. Complaint dismissed. Godfrey & Sons v. N. Y. C. & H. R. R. R. Co., Unrep. Op. 503. (nnn) Reparation awarded because shipments forwarded by carrier via route taking higher rate. Schuette & Co. v. D. & 1. R. R. R. Co., Unrep. Op. 595. (ooo) Cheapest routing having been furnished, complaint dismissed. Nourse- Taylor Lumber Co. v. G. & S. I. R. R. Co., Unrep. Op. 164. §5. Lower Rate via Competing Line. See Equalization of Rates, §4 (2) (1); Evidence, §47; Rate via Competing Line. (a) On cotton linters from Memphis. Tjnn., to Pueblo, Colo., via the L C, U. P. and C. S. R. Rs., a rate of $1.25 was col- lected. A lower combination rate was in effect through Wynne, Ark., via the St. L. L M. & S. Ry. and M. P. R. R., a com- peting and entirely different route some 500 miles shorter than that over which the shipments moved. No other evidence was submitted to show the rate charged to be excessive. No routing instructions were given by complainant. HELD, the rate attacked was not shown to be un- reasonable, since the existence of a lower rate via a competing route does not of itself establish the unreasonableness of the rate actually charged. Colorado Bed- ding Co. v. C. B. & Q. R. R. Co., 18 L C. C. 403, 404. (b) Where a shipment is delivered to a carrier without any routing instruc- tions, no obligation rests upon it to de- cline the shipment because of the exist- ence of a lower rate via a competing line. Colorado Bedding Co. v. C. B. & Q R. R. Co. et al., 18 L C. C. 403, 404. (c) No duty imposed upon carrier to turn shipment over to competitor which has lower rate in effect. Paragould Lum- ber Co. V. M. P. Ry. Co., Unrep. Op 485. §6. Right of Carrier to Route. See Foreign Commerce, §1 (f). (a) Under a bill of lading providing that the carrier may in case of neces- sity divert the shipment to a route taking a higher rate, no such necessity Is presented by a congestion of traf- fic on the Hne of the connecting car- rier or of the initial carrier. Dickerson V. L. & N. R. R. Co., 187 Fed. 874, 879. (b) The N. P. Ry. Co.. being the only line having rails extending to South Tacoma, is entitled, in protection of its investment, to conduct traffic between South Tacoma and other points on its line on preferred basis. Public Service Commission of Wash. v. N. P. Ry. Co., 23 I. C. C. 256. (c) Where a tariff names a joint through rate and reserves to the car- riers the right to route shipments tak- ing such rate but specifies no particular routes over which such rate is appli- cable, the rate is applicable via any Junction points of the carrier's line, and Is applicable to a shipment routed by a shipper via one of such junctions. Hef- tier Lumber Co. v. G. & S. L R. R. Co., 21 I. C. C. 14. (d) Carriers may not disregard in- structions of shippers as to intermediate routing, except when the tariff of the initial line reserves the right to dictate Intermediate routing. Foster Lumber Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 292, 294. (dd) Between Nov. 1. 1907, and May 21, 1908, complainant delivered to de- fendants at Beckville, Tex., shipments of lumber in carloads consigned respectively to Duncan, Comanche, Marlow and Waurika, Okla.. and requested the de- fendant, the initial carrier, to bill them to said points. Defendant refused so to do on the ground that no joint rates were in effect to these points, and complainant was compelled to allow defendant to bill the same via Ringgold, Tex. For many years prior to the shipments, joint ROUTING AND MISROUTING, §G (e)— §7 (d) 761 through rates from Beckville were in effect of 22i^c to Waurika and 26^c to Duncan, Comanche and Marlow. Shortly after the shipments in question, these joint through rates were restored. No evidence of their unreasonableness was offered. Complainant, by the routes over which the shipments were moved by the carriers, was assessed rates higher than such joint rates. HELD, it was the duty of the initial carrier to receive the ship- ments in question, to issue to complain- ant a receipt therefor, to indicate on the waybills the final destinations and to transport and deliver them to its connect- ing carrier, and that it was the duty of the connecting carriers to transport and deliver at destinations, each carrier charging for its service its legally pub- lished rate. The joint through rates of 221/^c and 26i4c were reasonable. Rep- aration awarded on basis of these rates. Commission of Oklahoma v. C. R. I. & G. Ry. Co., 17 I. C. C. 379, 382. (e) No justification exists for re- quiring shippers at one point to forward via circuitous routes to protect rates of other initial carriers from a farther distant point. Indianapolis Freight Bu- reau V. C. C. C. & St. L. Ry. Co., 16 I. C. C. 56, 69. (f) A carrier has no right to insist that a shipment shall go to the end of its rails if the shipper desires it to be diverted at an intermediate point to another market off its rails. Cham- ber of Commerce of Milwaukee v. C, R. I. & P. Ry. Co.. 15 I. C. C. 460, 464. (g) Where a rate is the same via two routes, routing is a matter of indif- ference to the shipper, hence a railroad can control the routing. Florida Fruit & Vegetable Shippers' Protect. Ass'n v. A. C. L. R. R. Co., 14 I. C. C. 47G. §7. Shipper's Instructions. (a) Where a carrier diverts a ship- ment from the route specified by the shipper to another route taking a higher rate, it is liable to make reparation and cannot escape liability on the ground that the bill of lading contains a provision giving it the right of diversion, where such right is not contained in the pub- lished tariffs. L. & N. R. R. Co. v. Dick- erson, 191 Fed. 705, 709. (aa) Complain-ant had shipped to it a car of yellow pine lumber from Brew- ton, Ala., to Atlanta, Ga., routed ''care C. of Ga. Ry." The initial carrier car- ried the car to Montgomery and there delivered it to the C. of Ga. Ry. for transportation to Atlanta, under a through rate of 13c per 100 lbs. There was a joint commodity rate of 9^c applicable via the lines of the Western Railway of Alabama and Atlanta & West Point roads. The initial carrier stated at the hearing that it construed the shipping instructions to mean that the C. of Ga. Ry. was to have a line haul, and for that reason the car was de- livered to it at INIontgomery instead of being hauled over the route via which the joint rate of 9i^c applied. Com- plainant did not appear at the hearing. HELD, upon the facts of record it cannot be found that defendant is chargeable with misrouting, nor that the rate assessed was unreasonable. Complaint dismissed. Alabama Lumber & Export Co. v. L. & N. R. R. Co., 23 I. C. C. 84. (b) An initial carrier, which received a shipment routed "care of" another carrier, is not guilty of misrouting for turning over the shipment to s .ch car- rier for. the line haul. Alabama Lumber and Export Co. v. L. & N. R. R. Co., 23 I. C. C. 84. (c) Between May 12, 1909, and March 30, 1910, complainant specifically routed carloads of petroleum oil from Phila- delphia to Utica via the P. & O. R. R., Phila. & Read. Ry., L. V. R. R. and N. Y. C. & H. R. R. R. Prior to May 7, 1909, a joint commodity rate of 13^c was applicable via the rouie specified by complainant and also via another available route. Effective May 7, 1909, the rate via the route speci- fied by complainant was cancelled, but was effective via the other. Complain- ant had no preference as to routing and through ignorance of the cancella- tion shipped over the route speci- fied, and was assessed a rate of 15c per 100 lbs. HELD, the case is different from those instances where the shipper specified a certain route with knowl- edge of what the charges were. The rate assessed was unreasonable and reparation awarded on the basis of 13 1/2 c. Atlantic Refining Co. v. B. & O. R. R. Co., 23 I. C. C. 492. (d) Where a shipper specifies the route the carrier is not liable for follow- ing instructions even though a higher charge is assessed than via another 762 ROUTING AND MISROUTING, §7 (e) — (n) equally available route, Humbolt Re- fining Co. V. M. K. & T. Ry. Co., 22 I. C. C. 363. (e) Reparation cannot be awarded when by the routing instructions of the •hipper the shipment moves over a route taking a higher rate than is in force via another available route. Good- kind Bros. V. I. & L. Ry. Co., 21 I. C. C. 17, 18. (f) Where various shipments are delivered to a carrier for transporta- tion to the same destination, and the consignor specifies the routing on the first shipment but not on the others. it is the duty of the carrier to trans- port the ones on which no route is specified, via the cheaper available route and not via the one specified by the con- signor for the first shipment. Goodkind Bros. V. C. I. & L. Ry. Co., 21 I. C. C. 17, 18. (g) A shipper may offer his freight without routing instructions, in which event it is the duty of the carrier to route it via the cheapest available prac- ticable route, but he is also entitled when for any reason he specifies a par- ticular route to have his shipments move in accordance with his instruc- tions, at the established rate over that route, and it is the duty of the initial carrier to take the necessary steps to carry out his routing instructions. Any carrier misrouting a shipment in vio- lation of specific instructions to the injury of the shipper, violates the Act, and is responsible for the damage thereby caused to the shipper. Beek- man Lumber Co. v. L. & N. Ry. Co., 21 I. C. C. 280, 281. (h) A carrier is liable for damages resulting from a disregard of a ship- per's specific routing instructions, even though it sends the shipment via a route taking a lower rate to the original billed destination. Switzer Lumber Co. V. T. & N. O. R. R. Co., 21 I. C. C. 290. (i) Damages may be awarded for the loss resulting from a disregard of rout- ing instructions, where the carrier used a route taking a lower rate to the original billed destination. Switzer Lum- ber Co. V. T. & N. O. R. R. Co., 21 I. C. C. 290. (j) The agent of the defendant car- rier disregarded complainant's instruc- tions to route a shipment of lumber from Huntington, Tex., to Oelwein, la., via Kansas City, and sent the ship- ment via a cheaper route. The shipment was company material of a connecting carrier which would have absorbed the transportation charge from Kansas City, the shipper only paying the published rate to Kansas City, which would have been less than the through rate which was assessed by reason of failure to observe the routing instructions. HELD, the presumption that the disregard of complainant's shipping instructions by the initial carrier was prompted by a desire to afford the shipper the lowest published rate from the point of origin to destination," cannot serve to relieve the carrier from liability for any dam- age caused by the misrouting. No car- rier can be chargeable with misrouting when it observes a shipper's express desire as to the route of movement, and no carrier is justified in assuming that a shipper does not really want what he asks. Reparation awarded. Switzer Lumber Co. v. T. & N. O. R. R. Co., 21 L C. C. 290, 291. (k) Where instructions call for de- livery by a certain road the shipment, it seems, should be delivered to such road at a junction over which the low- est rate is applicable. Ryland & Brooks Lumber Co. v. C. & O. Ry. Co., 21 I. C. C. 520. (1) A delivering carrier was named in the routing instructions. Damages awarded where carrier failed to route the goods to a junction with such road over which a lower rate was applicable. Ryland & Brooks Lumber Co. v. C. & O. Ry. Co., 21 L C. C. 520. (m) Complainant shipped pine lum- ber, C. L., from Mineral, Va., to Pas- saic, N. J., under bills of lading which specified routing simply as "Erie R. R." or "Erie R. R. delivery." Via one junction of the Erie R. R. to which the originating line carried the shipment the sum of the intermediate rates was 26c, and via another junction tney were 20i^c. There was no through route and joint rate in effect. HELD, it was the duty of the initial carrier to have routed the shipment via the lower combination of rates. Reparation award- ed. Ryland & Brooks Lumber Co. v. C. & O. Ry. Co., 21 I. C. C. 520. (n) Where the instructions of the shipper were to route from Worcester, ROUTING AND MISROUTING, §7 (o)— (x) 763 Mass., to St. Louis, Mo., via "B. & M. Cumberland Gap Despatch," which car- ried a rate of 53c per 100 lbs, and the carrier had in effect a 45c rate between the same points, via the N. Y. N. H. & H. Ry. and Cumberland Gap Des- patch. HELD, the carrier was under no duty to disobey the shipper's specific in structions and therefore not bound to route via the cheaper route. Empire Wall Paper Co. v. Boston & Maine R. R. 20 I. C. C. 1. (o) Complainant specifically routed four carloads of blacksmith coal from West Virginia points to Los Angeles, Cal., via a route which carried a rate of 75c per 100 lbs. A routing was pos- sible which carried a rate of 52i^c per 100 lbs. The agent of an inter- mediate carrier, the Wabash R. R., ad- vised the routing. HELD, the ship- ments were routed in accordance with specific instructions, and the fact that the Wabash R. R. advised the routing cannot afford a basis on which to award reparation. Reparation denied. Poor Grain Co. v. C. B. & Q. R. R. Co., 12 I. C C. 418, 469, approved. Independent Supply Co. v. C. & P. R. R. Co., 20 I. C. C. 66. (p) Where routing instructions are followed no misrouting can arise. Em- pire Wall Paper Co. v. B. & M. R. R., 20 I. C. C. 1; Independent Supply Co. V. C. & P. R. R. Co., 20 I. C. C. 66; Parfrey v. C. M. & St. P. Ry. Co., 20 I. C. C. 104, 105; West Oregon Lumber Co V. A. & C. R. R. Co., 20 I. C. C. 151, 152. (q) Complainant routed a carload of fir lumber, Clatskanie Junction, Ore., to DeBeque, Col., "A. & C, O. R. & N., O. S. L., U. P." Shipment moved via these lines by way of Denver under combination rate of 70c. A joint rate of 40c was in effect via Salt Lake City, Utah, a shorter distance, but that route did not include any part of the line of the U. P. R. R. HELD, where a ship- per gives specific instructions as to the route his shipment shall take, the car- rier must observe such instructions, and is relieved of the duty of ascertaining whether or not the shipment could be forwarded via another route at a lower rate. West Oregon Lumber Co. v. A. & C. R. R. R. Co., 20 I. C. C. 151, 152. (r) A carrier cannot disregard rout- ing instructions without incurring lia- bility for resulting damages. Noble v. J. L. C. & E. R. R. Co., 20 I. C. C. 520, 522. (s) Where a connecting line failed to observe a reconsignment order it is liable in reparation for misrouting. Noble V. J. L. C. & E. R. R. Co., 20 I. C. C. 520, 522. (t) A routing notation puts the car- rier under obligation of utilizing a con- necting line's facilities to the best ad- vantage of the shipper. Prentiss & Co. V. P. R. R. Co., 19 I. C. C. 68, 69. (u) When carriers follow shipper's routing instructions and a higher rate is charged than is available via another route they cannot be held liable for misrouting. Sikeston Mercantile Co. v. B. & M. R. R., 19 I. C. C. 422. (v) A carrier is not liable, when routing instructions are followed. Fish & Co. V. N. Y. C. & St. L. R. R. Co., 19 I. C. C. 425. (w) Where carriers literally observed the instructions given for routing, when the shipment is reconsigned, and send the shipment via the route designated, and apply the through rate over such route, the carrier cannot be held re- sponsible for misrouting because it did not send the shipment via a cheaper available route. Fish & Co. v. N. Y. C. & St. L. R. R. Co., 19 I. C. C. 452. (x) On a carload of corn from Daw- son, la., to Trevor, Wis., routed by the shipper via Waukesha, Wis., complain- ant was assessed a rate of 17.6c on an alleged combination of locals. The law- ful combination via this route, a dis- tance of 405 miles, was 18.6c and the joint rate between the same points via Chicago, a distance of 401 miles, was 12.6c. Shipments via Chicago are de- livered to the Wisconsin Central R. R., now the Soo line, at Franklin Park, where the exchange track between the Soo Line and the C. M. & St. P. Ry. is located, and are subject to but one car transfer, whereas if moved via Wau- kesha several transfers are necessary. HELD, following Poor Grain Co. v. C. B. & Q. Ry. Co., 12 I. C. C. 469, that where the shipper gives instructions to forward his goods via a particular route, the carrier is relieved from the duty of ascertaining whether the goods 'be for- warded via another route at a lower rate. Complaint dismissed, and carrier directed to collect an undercharge of 764 ROUTING AND MISROUTING, §7 (y) — (dd) Ic. Donahue v. C. M. & St. P. Ry. Co., 18 I. C. C. 92, 93. (y) A carload of foodstuffs from Webster, S. D., was consigned to order of complainant to Manchester, N. H., with routing instructions: "Care of Lehigh Valley Transportation Co., Mil- waukee, via Harlem River." The ship- ment reached Milwaukee after the last boat of the L. V. T. Co. for the season had departed. Defendant, C. M. & St. P. Ry., advised the consignor and asked instructions, and was directed to for- ward by Reading Despatch, break bulk across Lake Michigan to Grand Haven, and delivered shipment to the Reading Despatch. Said defendant in the bill of lading omitted the words "via Harlem River." As a result the shipment moved via Durand, Suspension Bridge, Owego, and incurred at Williamstown a recon- signment charge of $2, and demurrage charges of $23, and was assessed a higher rate of 13c, all of which charges would have been avoided had the ship- ment moved via the Harlem River. HELD, defendant C. M. & St. P. Ry. was liable for the extra charges on account of misrouting. Cressey & Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 132, 134. (z) The B. & O. R. R., in connection with the Mutual Transit Company, pub- lished a rate of 28c on canned tomatoes in carloads from Ridgley, Md., to Du- luth, Minn. Ridgley was in fact reached only by defendant, the Phila. B. & W. R. R. The Baltimore & Eastern Shore Transportation Co. formerly operated a line of boats reaching a point near Ridgley, but had gone out of business before the shipment in question. Com- plainant consignee at Duluth ordered a shipment of canned tomatoes from Ridg- ley, Md., to be made via the B. & O. R. R. It was thereupon advised that such a route was impossible, since the B. & O. R. R. did not reach Ridgley. Upon receiving this information com- plainant peremptorily instructed the con- signor to ship via the B. & O. R. R. In attempting to comply the con- signor shipped via the defendant Phila. B. & Wash. R. R. from Ridgley to Wilmington and thence via the B. & O. R. R. and the Mutual Transit Com- pany to Duluth. The local rate from Ridgley to Wilmington was 9c, and the j( int-rail-and-lake rate from Wilmington to Duluth, 26c, making the combination of 35c, which was collected. Another route from Ridgley via the Pennsylvania Lines gave a through rate of 28c. HELD, complainant had no right to attempt to avail itself of a tariff which could not apply. Reparation denied. Stone- Ordean-Wells Co. v. P. B. & W. R. R. Co.. 18 I. C. C. 160, 161. (aa) Routing directed by the shipper under erroneous information from the carrier affords no ground for relief. Spreckels Bros. Commercial Co. v. Mo- nongahela R. R. Co., 18 L C. C 190. (bb) On carloads of coke from Leck- rone. Pa., to Los Angeles, Cal., complain- ant was assessed $16.34 per ton. There was evidence that defendant advised complainant to route the shipment via New Orleans and stated that the rate would be the same as via Chicago. ^ HELD, whether complainant so advised 7 complainant was immaterial and did not ' entitle the latter to reparation. If the shipper is in doubt about the rate he can tender the traffic to the car- rier without routing instructions, and thereby be entitled to the lowest rate. But when he specifies the route he can- not recover reparation on the ground that the shipment might have moved by a lower route. Spreckels Bros. v. Monongahela R. R. Co., 18 I. C. C. 190, 191. (cc) Where a shipper designated "lowest all-rail" route, while there was a lower "rail-and-water" route, no mis- routing arises from obeying the ship- per's instructions. Hollingshead & Blei Co. V. P. & L. E. R. R. Co., 18 I. C. C. 193. (dd) Complainant shipped a carload of hoop steel from Pittsburgh, Pa., to Cleveland, O., directed the delivering carrier, the D. & C. Navigation Co., to reconsign the car on its arrival at Cleveland to Menominee, Mich., via boat line. The Navigation Co, advised complainant that boat service to Me- nominee had been suspended for the season. Complainant then directed de- fendant to forward the shipment to Menominee via all-rail and by the route taking the lowest rate. The shipment moved all-rail via Chicago at a rate of 33i^c. It might have moved by across-lake rail and water route at 17c. HELD, under Rule 214, Confer- ence Rulings Bulletin No. 4, it was the duty of complainant to designate the I rail-and-water route specifically; that ROUTING AND MISROUTING, §7 (ee) — (mm) 765 he did designate the shipment to be carried all-rail; and that defendant incurred no liability for the higher charge by having routed the shipment as it did. Hollingshead & Blei Co. v. P. & L. E. R. R. Co., 18 I. C. C. 193, 194. (ee) Where the initial carrier vio- lates routing instructions given by the shipper and by so doing incurs a higher rate, it is liable to make reparation for the difference between the rate over the route specified and that over the route by which the shipment moved. Delray Salt Co. v. M. C. R. R. Co., 18 I. C. C. 248, 248. (ff) Where a carrier by disobeying routing instructions put the shipper to additional expense for icing a car of grapes, it is liable to make reparation for such expense. Flatten Produce Co. V. Kalamazoo, Lake Shore & Chicago rty. Co., 18 I. C. C. 249, 250. (gg) The initial line ought to pass che shipper's routing instructions along *to connections. Duluth & Iron Range R. R. Co. V. C. St. P. M. & O. Ry. Co., 18 I. C. C. 485, 488. (hh) The Initial line by failing to transmit the shipper's routing instruc- tions does not relieve connecting lines from the obligation to carry over the cheapest reasonable route. Duluth & Iron Range R. R. Co. v. C. St. P. M. & O. Ry. Co., 18 I. C. C. 485. (ii) A carload of lumber from Ely, Minn., to St. Charles, Mo., was routed on the through bill of lading by the shipper through Duluth and thence over the C. St. P. M. & O., the M. & St. L. and the Iowa Central R. R. to destination, the through rate over this route being 21c The complainant initial carrier moved the car to Duluth, the only junction available to the destination in question, and turned it over to defendant C. St. P. M. & O. K. R., but neglected to note the consignor's routing instructions on the transfer Dilling. Defendant in- stead of delivering^the car at Minnesota Transfer to the Minneapolis & St. Louis R. R., the direct route, hauled it through that point to Sioux City, delivered it to the C. & N. W. R. R., which hauled it to Council Bluffs and turned it over to the Wabash R. R. The last named road hauled it back 387 miles to des- tination. The rate over the route taken was 34c Complainants, under Ruling 70 of Tariff Circular 15-A as amended by Rule 214 of Conference Rulings Bul- letin No. 4, reimbursed the shipper for misrouting. HELD, under these rules complainant was entitled to recoup the sum paid the shipper from the defend- ant C. St. P. M. & O. Ry. alone. The mere failure of an initial carrier to pass the shipper's routing instructions along to its connection does not relieve the connecting line, as a matter of law, from the duty of forwarding the ship- ment over the reasonable and direct route to destination. Duluth & Iron Range R. R. Co. v. C. St. P. M. & O. Ry. Co., 18 1. C. C. 485, 487. (jj) No claim for misrouting can be predicated upon a failure to obey instructions where a factor in the des- ignated route is not on file with the Commission. De Bary & Co. v. Louisi- ana Western R. R. Co., 18 I. C. C. 527. (kk) A carload of alum from Chicago Heights, 111., to Lebanon, Ore., was routed by the shipper "Chicago, Rock Island & Pacific, care of Union Pacific, care of Southern Pacific." HELD, since under these instructions the car might move through either Portland or Sac- ramento, it was the duty of the car- riers to send the same through Port- land, the rate being lower by that route. Reparation awarded for misrouting through Sacramento. Lebanon Paper Co. V. E. .J. & E. Ry. Co., 18 I. C. C. 691, 592. (11) A shipment of coal from the Big Four mine, Colo., to Pueblo, Colo., was ordered reconsigned to Hutchinson. A rate of $3.60 per ton was collected, made up of $3 from the mine to Medora, Kan., plus 60c from Medora to Hutchin- son, a distance of 749 miles. The route selected was specified by complainant. Over another route the charge would have been $3. No evidence was offered that the charge collected was unreason- able, except that it might have moved at the $3 rate over the other route. HELD, the rate charged was not shown to be unreasonable. Complaint dis- missed. South Canon Coal Co. v. C. & S. Ry. Co., 17 I. C. C. 286, 287. (mm) Carriers may not disregard in- structions of shippers as to intermedi- ate routing, except when the tariff of the initial line reserves the right to dictate intermediate routing. Foster Lumber Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 292, 294. 766 ROUTING AND MISROUTING, §7 (nn)— (tt) (nn) Where a shipper gives instruc- tions to forward his goods by a partic- ular route the carrier is relieved of duty of ascertaining whether the goods could be forwarded by another route at a lower rate. Foster Lumber ■^o. V. A. T. & S. F. Ry. Co., 17 I. C. C. 292, 294. (oo) Carloads of coal from Strong, Colo., to Quinn and Cottonwood, S. D., were routed by the complainant via the D. & R. G., C. B. & Q., Missouri River & Northwestern R. Rs., in care of the Pierre, Rapid City & Northwest- ern R. R. at Rapid City. The rate as- sessed on one carload from Strong to Rapid City was $4 per ton, plus the local rate of $1.90 from Rapid City, a distance of 65 miles to Quinn. On the other car, a rate of $4 from Strong to Rapid City, plus the local rate of $2.20 from Rapid City to Cottonwood, a distance of 76 miles, was assessed. At the time of shipment joint rates were in effect via the C. & S., C. & N. W. and Pierre, Rapid City & N. W. R. Rs. of $5.41 to Quinn, a distance of 731 miles, and $5.52 to Cottonwood, a distance of 742 miles. The Pierre Rapid City & N. W. R. R. is 165 miles in length. In that distance are 494 bridges and culverts, and not to ex- ceed 1^/^ miles of straight track. Sev- eral grades exceed 1^/^ per cent. The maximum haul for the engines in use did not exceed 400 tons. The cost of operation of the road was 17.42 mills per-ton-mile. HELD, complainant hav- ing specified the routing, the rates were not, under the circumstances, shown to be unreasonable. Sunnyside Coal Min- ing Co. V. D. & R. G. R. R. Co., 17 I. C. C. 540: (pp) Complainant shipped from Port Costa, Cal., to Sacramento, Cal., three carloads of barley with the purpose of having the same inspected at Sac- ramento and forwarded thence to Mil- waukee, Wis. The shipment was billed to Sacramento and rebilled to Milwau- kee. At the time of shipment defendant had no provision in its tariff permitting the diversion of grain in transit through Sacramento. Since the shipment such provision was put into effect. Com- plainant was charged the sum of the local rates. HELD, the shipments hav- ing been billed locally from Port Costa to Sacramento and rebilled thence to Milwaukee, reparation should be de- nied. Clemens Horst Co. v. S. P. Co., 17 I. C. C. 576. (qq) No reason exists why a com- munity should insist upon transportation by a more circuitous route against the will of that carrier. City of Spokane V. N. P. Ry., 16 I. C. C. 179, 180. (rr) Where shipper routed via an expensive route to test the market at an intermediate point no claim can be sustained for misrouting. Counsil v. St. L. & S. F. R. R. Co., 16 I. C. C. 188. (ss) On a shipment of cattle in car- loads from Haverhill, Kan., to East St. Louis, 111., complainant directed the routing to be via Kansas City. The only legal rate in force by that route was 27i^c. By another route not passing through Kansas City there was a through rate of 22 %c. Complainant chose the Kansas City route in order to try the market at that place. He offered no evidence to show the un- reasonableness of the 2TY2C rate. HELD, he was not entitled to reparation on the basis of the 22 %c rate. Coun. sil V. St. L. & S. F. R. R. Co., 16 I. C. C. 188, 189. (tt) Complainant routed a carload of red cedar shingles from Bellingham, Wash., to Menasha, Wis., via the G. N. Ry. and Minnesota Transfer, care of the Wisconsin Central Ry. The agent of the G. N. Ry. failed to note on the billing the routing beyond Minnesota Transfer and the car was delivered to the C. M. & St. P. Ry. at that point and by it transferred to Menasha. The Wisconsin Central Ry. had been accus- tomed to hold at Menasha shipments of lumber from the Pacific coast, to unload and reload the same if necessary and rebill and reconsign them upon receiving instructions from complainant and to al- low the shipments to move to Chicago on the proportional rate applying be- tween Minnesota Transfer and Chicago. The' Wisconsin Central Ry.'s tariffs, however, contained no provisions allow- ing these privileges^ at Menasha. The C. M. & St. P. Ry.' rebilled the ship- ments in question at Menasha to De- troit and collected rates of 10c, Minne- sota Transfer to Menasha, of S^^c, Menasha to Chicago, and 9c, Chicago to Detroit. Had the agent of the G. N. Ry. noted on the billing the routing specified, the Wisconsin Central Ry. would have charged only 10c from Min- nesota to Chicago, thereby saving com- ROUTING AND MISROUTING, §7 (uu)— (aaa) 767 plainant S^/^c, but such a charge would have been unlawful. HELD, complainant could not recover reparation of the G. N. Ry. for misrouting. An act of negli- gence on the part of the carrier which deprives a shipper of the enjoyment of an unlawful privilege cannot be made the basis of a claim for reuaration. Fol- mer & Co. v. Great Northern Ry. Co., 15 I. C. C. 33, 36. (uu) Where the shipper's agent shipped contrary to instructions, the Commission has no authority to grant relief. Carstens Packing Co. v. O. S. L. R. R. Co., 15 I. C. C. 429. (vv) On shipments of cattle from Nampa, Idaho, and Ontario, Ore., to Tacoma, complainant instructed its agent to send same by a given route, but the agent upon consultation with defendant's agent was persuaded that no advantage in rates would be secured by shipping over said route. As a re- sult the cars were shipped over a route taking a higher rate than the one suggested to its agent by complainant. No evidence was offered of the unrea- sonableness of the rates exacted. HELD, the Commission had no authority to grant any relief. Carstens Packing Co. v. O. S. L. R. R. Co., 15 I. C. C. 429, 430. (ww) The carrier's duty is to trans- port the merchandise of shippers in accordance with their reasonable in- structions. Chamber of Commerce of Milwaukee v. C. R. I. & R Ry. Co. 15 I. C. C. -60, 464. (xx) Generally speaking, it is the duty of the carrier to transport ship- ments via the route designated by the consignor; and if this causes additional expense to the shipper the carrier in- curs no liability therefor. Bregman & Co. V. Penn. Co., 15 L C. C. 478, 479. (xxx) A car of scrap iron from Free- port, 111., to Wheatland, Pa., was routed by complainant via the C. & N. W. Ry. to Chicago, thence over the Bl" e Line which operated over the M. C. R. R. When the car was tendered to the M. C. R. R., said company asked defendant ini- tial carrier for prepayment of charges. The consignor was duly informed, but declined to prepay the freigh"- and di- rected that the car be sent forward on the through rate via the C. & N. W, and the Penn. R. Rs. Switching charges at Chicago of $6.50 were incurred. Defend- ant initial carrier did not have on file at Freeport the tariffs of the Blue Line from Chicago to Wheatland, having no through rates over the route as specified by the shipper, HELD, defendants were not at fault and the switching charge should be borne by the shipper. Breg- man & Co. v. Pa. Co., 15 I. C. C. 78, 479. (yy) Carloads of cattle from Ontario, Ore., and from Nampa, Idaho, to Ta- coma were specifically routed through Wallula. On account of washouts the shipments were diverted by defendant through Portland. The diversion was effected without the knowledge or con- sent of the shippers and was unneces- sary, for the line supposed to be washed out had been reopened and was in operation. HELD, defendant was liable to make reparation for the difference between the rate over the route speci- fied, and over the one to which the shipments were diverted. Carstens Packing Co. v. O. R. R. & Nav. Co., 15 I. C. C. 482, 483. (zz) It is the duty of the initial carrier to obey the specific instructions furnished by the shipper. When a shipper names the carriers that are to transport his shipment, it must be as- sumed that he is relying on his own investigations, and that for some reason he considers it expedient that the ship- ment move over the route indicated by him. Duluth Log Co. v. Minn. & Int. Ry. Co., 15 L C. C. 627, 628. (aaa) On a carload of poles from La- porte, Minn., to Poplar Bluff, Mo., a rate of 451/^0 was collected. Complainant gave specific routing instructions which prevented the shipment from taking a route yielding the lowest rate, 33c, but even under such instructions the connect- ing carrier at Kansas City might have sent the shipment through Springfield, Mo., to destination instead of St. Louis, and thereby obtained a rate of 39i/^c. This defendant connecting carrier failed to do and routed the shipment via St. Louis, thereby inposing the rate com- plained of. HELD, complainant, having given routing instructions, was not en- titled to the benefit of the 33c rate over a route contrary to his instructions, but was entitled to the lowest rate consistent with them, namely, the 39V^c rate via Springfield. Reparation awarded against the connecting carrier on the basis of 39 1/2 c. Duluth Log Co. v. M. & I. Ry. Co., 15 L C. C. 627, 629. ?68 ROUTING AND MISROUTING, §7 (bbb) — (nnn) (bbb) Where a shipper gives direc- tions with respect to the routing of his shipment, the carrier is bound by his in- structions and must charge the rate ap- plicable to the designated route, even though such rate is higher than over some other route between the same points. Struthers-Wells Co. v. Penn. R. R. Co., 14 I. C. C. 291, 292. (ccc) On carloads of potatoes from Wautoma, Wis., to Springfield, Mo., routed by complainant via Chicago and St. Louis, a charge of SS^/^c was assessed. The shipments might have moved upon a 25c rate over several other routes. By mistake of defendants the cars were shipped to East St. Louis instead of St. Louis, and were subjected for that reason to an unnecessary l^^c bridge toll, mak- ing the charge 38y2C instead of 37c. The charge exacted was made up of a joint through rate from Wautoma via Chicago to East St. Louis of 20c and a local rate from East St. Louis to Springfield of Igi^c. The distance from Wautoma to East St. Louis is 489 miles. Excluding the bridge toll of IVaC, the 17c local rate exacted from East St. I^uis to Spring- field was established by the Missouri Commission. HELD, complainant was not entitled to recover on the basis of the 25c rate over other routes since it routed the shipments itself; that satis- factory through routes being already in existence the Commission could not es- tablish through routes and joint rates between Wautoma and Springfield, and could not therefore award reparation on the basis of the unreasonableness of the charge exacted; but that complainant should be awarded reparation for the l^/^c bridge toll unnecessarily incurred. Stedman v. C. & N. W. Ry. Co., 13 I. C. C. 167, 169, 170. (ddd) Complainant routed carloads of canned vegetables from Green Bay, Wis., to Washington, O., via the C. & N. W., P. M. and Hocking Valley R. Rs. No joint rate was in effect over this route and the sum of the locals, 26i^c, was col- lected. Over another route via C. & N. W., H. V. and Cincinnati & Mus- kingum Valley R. Rs.. a joint rate of 20c was in effect. No evidence was offered showing the rate charged to be unrea- sonable per se. HELD, defendants were compelled to route the shipment as di- rected. Reparation denied. Larsen Can- ning Co. V. C. & N. W. Ry. Co., 13 I. C. C. 286, 287. (eee) In absence of routing instruc- tions the initial carrier routed shipment via the more expensive of two available routes. Reparation awarded. Caddell & Sons V. C. & S. Ry. Co., Unrep. Op. 177. (fff) Although complainant knew of an existing through route and joint rate, via certain lines, it nevertheless routed the shipments via connecting lines over which a higher combination of inter- mediates was applicable. Reparation denied. Utterback Bros. Co. v. N. Y. C. & H. R. R. R. Co., Unrep. Op. 317. (ggg) Lower rate in effect than the one designated by shipper, no grounds for reparation. Ludowici-Celadon Co. v. M. P. Ry. Co., Unrep. Op. 320. (hhh) Connecting lines inserted in bill of lading by consignor, but did not mention junction point or name of de- livering carrier. Instructions followed. Complaint dismissed. Zuber v. C. of Ga. Ry. Co., Unrep. Op. 327. (iii) Routing instructions not fol- lowed. While shipment in transit, con- signor ordered same diverted, which caused assessment of higher rates. Rep- aration awarded. Barker & Co. v. G. & S. I. R. R. Co., Unrep. Op. 332. (jjj) Carrier disregarded routing in- structions, causing assessment of higher rates. Reparation awarded. Chicago & Riverdale Lumber Co. v. C. & E. I. R. R. Co., Unrep. Op. 346. (kkk) Shipment forwarded via route selected by complainant, although route with lower rate in effect, no ground for reparation. Parafline Paint Co. v. S. P. Co., Unrep. Op. 369. (Ill) If a shipper desires his ship- ment to move via a water-and-rail route that is cheaper than the all-rail route, he must in delivering it to an initial rail carrier specify such routing, otherwise it is understood^ that the shipment is to move via all-rail route. Hirsch v. E. R. R. Co., Unrep. Op. 381. (mmm) Reparation awarded for dam- ages caused by defendant's failure to com- ply with shipper's instructions as to rout- ing. Federal Lumber Co. v. S, Ry. Co., Unrep. Op. 453; La. Sawmill Co. v. L. Ry. & Nav. Co., Unrep. Op. 422. (nnn) Instructions given by com- plainant to forward shipment to wrong destination. No negligence having been shown on part of defendant, complaint I ROUTING AND MISROUTING, §7 (ooo)— §9 (g) 769 dismissed. Biddle Purchasing Co. v. B. & O. R. R. Co., Unrep. Op. 430. (oooppp) Failure to follow routing in- structions as given by shipper prevented reconsignment at balance of through rate. Reparation awarded. Taylor & Mason v. C. & C. Ry. Co., Unrep. Op. 457. (qqq) Shipment forwarded to lake port with instructions to forward all rail if navigation closed. No demurrage should accrue for detention at lake port before forwarding via all-rail line, be- cause during all the time the car was held at such port it was in the •custody of the carriers awaiting acceptance by the water line. Follmer & Co. v. N. P. Ry. Co., Unrep. Op. 458. (rrr) In order to comply with recon- signment instructions to point with which carrier had no connection, it was necessary to make back haul. Charges therefor not having been found unrea- sonable, and instructions followed, com- plaint dismissed. Doran & Co. v. O. & K, Ry. Co., Unrep. Op. 491. (sss) A shipment moving in accord- ance with instructions furnished by ship- per is not misrouted, although a lower rate is available over another route. O'Halloran & Jacobs v. B. & A. R. R. Co., Unrep. Op. 494. (ttt) A carrier negligently failed to comply with instructions for reconsign- ment. HELD, that the carrier is re- sponsible for additional freight charges incurred as a result of its negligence. Reparation awarded, fiathway Lumber Co. V. L. & N. R. R. Co., Urep. Op. 544. (uuu) Routing instructions disre- garded, causing higher rate to be as- sessed. Reparation awarded. Milne Lumber Co v. L. & A. Ry. Co., Urep. Op. 558. (vvv) Instructions having been fol- lowed, even though lower rate in ef- fect, no ground for reparation. Wahl- gren Furniture Co v. C. M. & St. P. Ry. Co., Unrep. Op. 583. (www) Routing instructions disre- garded, causing higher charges to be as- sessed. Reparation awarded. Ferguson Lumber Co. v. L. & A. Ry. Co., Unrep. Op. 584. (xxx) Agent of complainant routed shipment via route over which higher rate applicable, therefore carrier not liable for such higher charge. Complaint dis- missed. Grinnell, Collins & Co. v. C, B. & Q. R. R. Co., Unrep. Op. 139. III. LIABILITY FOR MISROUTING. See Overcharges, §9 (cc) ; Procedure Before Commission, §5 (k). §8. Burden of Proof. See Evidence, \. (a) Where routing instructions are given under which more than one route may be selected by the carriers, the pre- sumption is that the lowest rate will be applied by them and the burden is upon the carrier charged with misrouting to show that it applied such rate. Duluth Log Co. v. M. & I. Ry. Co., 15 I. C. C. 627, 630. §9. Measure of Damages. See Reparation, §6 (I), §18. (a) The measure of damages for mis- routing a shipment billed to a consignee carrier is not the full division of the rate, because it would have cost that carrier something to perform the haul. In Re Transportation of Company Ma- terial, 22 I. C. C. 439, 441. (b) Reparation awarded on shipment of lumber from Perry, Le Flore County, Okla., to lola, Kan., on account of mis- routing. Hill-Ingham Lumber Co. v. K. C. S. Ry. Co., Unrep. Op. 45. (c) Reparation awarded on various shipments of cheese for misrouting from Sheboygan, Wis., to Muncie, Ind. God- dard Co. v. C. & N. W. Ry. Co., Unrep. Op. 83. (d) Reparation awarded on ten car- loads of grain from Kansas City, Mo., to Milwaukee, Wis., for misrouting. Mason Gregg Grain Co. v. Wabash R. R. Co., Unrep. Op. 89. (e) Reparation awarded on two car- loads of lumber misrouted by the initial carrier. Sterling Lumber Co. v. L. & N. R. R. Co., Unrep. Op. 222. (f) Lumber misrouted from Winter- burn, W. Va., to Irvington Station, New- ark, N, J. Reparation awarded. Craig & Sons V. C. & O. Ry. Co., Unrep, Op. 266. (g) Reparation awarded on account of an unreasonable charge due to mis- routing a carload of lumber from Colfax, La., to Calvary, 111. Sabine Lumber Co. V. L. Ry. & Nav. Co., Unrep. Op. 270. 770 ROUTING AND MISROUTING, §9 (h)— §10 (j) (h) Reparation awarded for misrout- ing carload of corn from Washington, Okla., to Arcadia, La. Hill & Webb v. C. R. I. & P. Ry. Co., Unrep. Op. 274. (i) Reparation awarded against ini- tial ^carrier for misrouting shipment of oak fence posts from Mammoth Springs, Ark., to Grainfield, Kan. Benton v. St. L. & S. F. R. R. Co., Unrep. Op. 304. §10. Parties to Make Refund. See Reparation, §19 (k), (m), (n). (a) Where the originating carrier is responsible for not providing a routing for goat and sheep skins, from Farming- ton, N. Mex., to Chicago, 111., via Pueblo, which carried a lower rate than that ex- acted, that carrier will be ordered to make reparation. C. H. Algert Co. v. D. & R. G. R. R. Co., 20 I. C. C. 93, 94. (b) Where the initial carrier receives shipments without routing instructions and misroutes them so as to incur higher rates, it is liable to make reparation. Marshall & Michel Grain Co. v. St. L. & S. F. R. R. Co., 18 I. C. C. 228, 230. (c) Rule 214, of Conference Rulings, Bulletin No. 4, relating to the settlement of disputes between carriers as to the responsibility for misrouting, is not con- fined in its operation to the initial car- rier, but relates to all the carriers par- ticipating in the movement. Duluth & Iron Range R. R. Co. v. C. St. P. M. & O. Ry. Co.. 18 I. C. C. 485, ^88. (d) Under Rule 70, of Tariff Circular 15-A, as amended by Rule 214, of Confer- ence Rulings, Bulletin No. 4, where a car- rier adjusts a claim for misrouting and later learns that the responsibility rests with a connection, the two carriers may apply to the Commission to determine a dispute between them as to the respon- sibility for the error. Duluth & Iron Range R. R. Co. v. C. St. P. M. & O. Ry. Co., 18 I. C. C. 485, 486. (e) Larger lines and systems, when they are intermediate or connecting car- riers, not infrequently relieve small initial carriers of the responsibility for correct routing, and, from the nature of their larger traffic and wider opportu- nities for knowing what are the reg,son- ably direct routes, they ought in many cases to be willing to do this. With re- spect to shipments to distant and un- usual points it is not reasonable to ex- pect that the initial line, and often even its immediate connections, will be able to give specific routing, through to des- tination; in such cases they ought not to be held to any greater duty than that of indicating the proper or usual gateway to destination. Duluth «& Iron Range R. R. Co. V. C. St. P. M. & O. Ry. Co., 18 I. C. C. 485, 489. (f) A shipment was routed from Ant- werp, Belgium, to New Orleans, thence by rail to San Francisco, thence by ocean carrier to Seattle. When it reached El Paso the S. P. Co. sent the same by rail via Portland to Seattle instead of having it delivered to the ocean carrier, via San Francisco, and as a result a higher charge was incurred. HELD, no reparation could be recovered for mis- routing. To determine the damages for misrouting all factors in the claimed route must be subject to the Commis- sion's jurisdiction and filed in the man- ner prescribed by law, and since the San Francisco to Seattle, port to port water rate was not filed such rate could not serve as a measure of damages. Fred- erick De Barry & Co. v. Louisiana West- ern R. R. Co., 18 I. C. C. 527, 528. (g) Where the initial , carrier has knowledge of the rates applying over two different routes, it is solely liable for misrouting despite inquiries made by it as to rates over the lines of connecting carriers. Cameron & Co. v. T. & P. Ry. Co., 18 I. C. C. 560, 561. (h) Where a higher rate is exacted on account of misrouting through the fault of the initial carrier alone, repara- tion will be awarded only against that carrier. Grand Rapids Plaster Co. v. P. M. R. R. Co., 15 I. C. C. 68, 69. (i) The demand of carriers that Ad- ministrative Rulings 60, 70 and 83, requir- ing published tariffs to be adhered to and imposing the liability for reparation solely on the carrier diverting . a ship- ment intentionally or unintentionally to a route involving a higher rate, be so modified as to permit such diversion in cases of emergency or necessity is de- nied. Woodward & Dickerson v. L. & N. R. R. Co., 15 I. C. C. 170, 173. (j) On a carload of poles from La- porte, Minn., to Louisville, Ky., complain- ant gave no routing instructions. The initial carrier routed same so as to take the lowest rate. The connecting carrier at Minnesota Transfer changed the rout- ing so as to impose a rate of 31c instead ROUTING AND MISROUTING, §10 (k)— SPECIAL CONTRACTS, §1 (a) 771 of 27c. HELD, reparation should be awarded against the connecting carrier alone without recourse upon any other carrier. Duluth Log Co. v. M. & I. Ry. Co., 15 I. C. C. 192, 195. (k) Where the defendant alone was responsible for the misrouting of the shipment through a junction carrying a higher rate than was available through another junction, it must therefore bear the entire burden of the mistake. Wash- ington Broom & Woodenware Co. v. C. R. I. & P. Ry. Co., 15 I. C. C. 219, 221. (1) Carriers at fault in misrouting are liable for damages represented by higher charges than would have been lawfully assessable had the misrouting not oc- curred, and their liability is not limited to such damage as can be reasonably an- ticipated, since a shipper cannot be de- prived through a carrier's negligence of any lawful privilege offered by another carrier, especially after due diligence on his part to secure such advantage. Kile & Morgan Co. v. Deepwater Ry. Co., 15 I. C. C. 235, 238. (m) Where the responsibility for mis- routing rests upon a particular carrier that carrier is solely liable. Duluth Log Co. v. M. & I. Ry. Co., 15 I. C. C. 627, 629. (n) A carload of grain products from Kansas City, Mo., to Howard, Wis., was routed via Minnesota Transfer by the initial carrier. No joint rate being in effect over that route, the sum of the locals, 24c, was charged. The shipment might have moved via Chippewa Falls by the combination of locals, 20V^c. The joint rate from Kansas City to Albert- ville. Wis., via Waukesha was 14c per 100 lbs. Howard was an in<;ermediate point on that route and was entitled to the 14c rate, although through fault of de- fendants no joint rate was published to Howard via this route. HELD, complain- ant was entitled to reparation on the basis of the 14c rate; the initial carrier was liable to the extent of the difference between the 24c rate charged and the 20^c-via-Chippewa-Falls rate; that the balance of the damages should be shared between the two defendants according to their division of the through rate. Wil- son V. C. M. & St. P. Ry. Co., 14 I. C. C. 549, 550. (o) Reparation awarded against ini- tial carrier for misrouting complainant's ■shipment of baskets from Traverse City, Mich., to Chicago, 111. Wells-Higman Co. V. G. R. & I. Ry. Co., Unrep. Op. 48. (p) Reparation awarded against ini- tial carrier for misrouting carloads of lumber from New Albany, Miss., to St. Charles, Minn. Wolter v. St. L. & S. F. R. R. Co., Unrep. Op. 132. RULES AND REGULATIONS. See Transportation, §12. SCHEDULE. See Transportation, §8 (a). SPECIAL CONTRACTS. I. CONTROL AND REGULATION. §1. Constitutionality of Act. II. LEGALITY AND EFFECT SINCE PASSAGE OF ACT. §2. In general. III. LIABILITY. §3. Criminal liability. §4. Damages for breach. (1) Jurisdiction of Com- mission. §5. Discrimination through con- tract. IV. ACTIONS TO ENFORCE. §6. Defenses. V. AS EVIDENCE OF REASONABLE RATES. §7. In general. CROSS REFERENCES. See Auction Company; Baggage Transfer, II; Cars and Car Sup- ply, IV; Exclusive Contracts; Pas- senger Fares and Facilities, §12; Stock Yards Company. I. CONTROL AND REGULATION. §1. Constitutionality of Act. See Constitutional Law. (a) The Act is not unconstitutional as infringing the right of contract or as taking property for public use without just compensation or due process of law by reason of the fact that it invalidates a contract entered into prior to its passage between a person and a railroad by which the latter, in consideration of the release of a cause of action for personal injuries, granted to such person and his family free transportation for life. L. & N. R. R. V. Mottley, 219 U. S. 467, 482, 484, 31 Sup. Ct. 265, 55 L. ed. 297. 772 SPECIAL CONTRACTS, §2 (a) — (i) II. LEGALITY AND EFFECT SINCE PASSAGE OF ACT. §2. In General. See Advanced Rates, §17 (a); Allow- ances, §5 (c) ; Crimes, §7 (c), (n); Demurrage, §11 (a); Evidence, §64 (w) ; Interstate Commerce, §4 (w) ; Reasonableness of Rates, §94 (b); Tariffs, §3 (ff), §3 (1) (h), (j), (m), (n), (o), (p), (q), (s), (u), (V), (w), §3 (2) (d), (I), (p), (q); Through Routes and Joint Rates, §16 (k), (m), §17 (h), §18 (c). (a) A contract by which, in consider- ation of a release of a cause of action for personal injuries, a carrier agrees to furnish free transportation to the person injured and his family, is in violation of the Act as amended and cannot be enforced despite the fact that it was made before the passage of the Act, since the Act as amended makes no exceptians as to ex- isting contracts. L. & N. R, R. v. Mott- ley, 219 U. S. 467, 478, 31 Sup. Ct. 265, 55 L. ed. 297. (b) After the Interstate Commerce Act came into effect no contract that was inconsistent with the regulations estab- lished by it could be enforced in any court. L. & N. R. R. v. Mottley, 219 U. S. 467, 483, 31 Sup. Ct. 265, 55 L. ed. 297. (c) Railroad companies may contract with shippers for a single transportation or for successive transportations, subject though such contract may be to a change of rates in the manner provided in the Interstate Commerce Act. I. C. C. v. C. G. W. Ry. Co., 209 U. S. 108, 119, 28 Sup. Ct. 493, 52 L. ed. 705. (d) A railroad which has duly pub- lished an advance in rates may charge a shipper the advanced rate despite a private agreement with him to carry goods at the rate in existence prior to the advance. First Trust & Savings Bank v. So. Ind. Ry. Co., 195 Fed. 330, 334. (e) Plaintiff lumber company con- tracted with defendant railway to build a railroad from its mills to defendant's right of way and also to construct at its own cost on its own right of way a switch at the intersection of its line and that of defendant for the placing of cars. Plaintiff bound itself for ten years to ship all its lumber over defendant's road. A system of rate making and freight di- vision for the ten-year period was stipu- lated. Plaintiff took no step to incorpo- rate its road or make it a common car- rier. HELD, the contract being illegal in toto as an agreement to accept less than the published rates, defendant was not liable in an action at law for dam- ages for failure to furnish sufficient cars. Taenzer & Co. v. C. R. I. & P. Ry. Co., 191 Fed. 543, 549. (f) Where no state law makes the giving of rebates illegal, a contract be- tween the receiver of a railroad and a shipper by which the former agrees to give a rebate from the published rates on an intrastate shipment is not illegal. Bibber-White Co. v. White River Valley Elec. R. R. Co., 175 Fed. 470, 475. (g) Plaintiff lumber company made a contract with defendant carrier by which it was to build at its own expense a tie hoist at the river landing and tracks con- necting the landing with defendant's line. It was to furnish traffic over these tracks to defendant and was to receive from defendant 10 per cent of the net profits on such traffic until the plaintiff was re- imbursed for the Cost of construction, whereupon the tracks and hoist were to become the property of defendant. The agreement did not provide that other shippers might use the hoist and tracks. Under this contract defendant paid back to plaintiff much more than it actually expended on construction. In a suit by plaintiff for breach of contract, HELD, the contract was void under the Act, since its purpose was to give plaintiff a preferential rate. C. & O. Ry. Co. v. Standard Lumber Co., 174 Fed. 107, 112. (h) Although a carrier gives to one transfer company, which is controlled by its officers, the exclusive privilege of soliciting baggage transfer on their trains without any monetary consideration, there is no undue discrimination against a competitive company which is willing to pay for such privilege, because defend- ants owe no duty to provide such service either under statute, common law, or cus- tom and have performed what is required of them when they accept baggage at their depot, transport it, and make de- livery at destination upon their own ter- minal. Cosby V. Richmond Transfer Co., 23 1. C. C. 72. (i) If a carrier undertook to make delivery of passenger baggage and to issue baggage checks at residences for the rate of fare stated in Its tariffs this would be a service over which the Com- mission would have jurisdiction, and which must in all regards become sub- SPECIAL CONTRACTS, §2 (j)— (m) 773 ject to the mandates and prohibitions of the Act, even though the service in whole or in part was not performed by the carrier itself, but was rendered by some agency under contract or other- wise. But in merely granting the exclu- sive privilege of soliciting on its trains and issuiiig baggage checks at residences to one baggage transfer company a car- rier does not undertake an additional service to the public. The carrier's duty to the public as to baggage begins- and ends in the baggage room provided by it. Baggage transfer is prior or subsequent to the transportation service as to which the carrier owes a duty to the public, and is therefore outside the jurisdiction of the Commission. Cosby v. Richmond Transfer Co., 23 I. C. C. 72, 75. (j) Defendant carriers had promised complainant that they would continue to make rates to complainant on a "fair basis." HELD, if defendants did, as is alleged, agree to "continue a fair basis," It is not improper to inquire whether or not they have failed in that agreement, although the terms of any agreement of that sort must always give way to the lawful, reasonable and non-discrimina- tory rate. Sinclair & Co. v. C. M. & St. P. Ry. Co., 21 L C. C. 490, 496. (k) Complainants shipped carloads of scrap iron from Walcottville, Ind., via Montpelier, O., to Ft. Wayne, Ind., under a rate of $1.25 per gross ten. At the same time via another route a rate of 85c per gross ton was in effect which defendant subsequently reduced its rate to meet. No evidence was submitted of the unreasonableness of the rate per se. Complainants submitted testimony tend- ing to show that before shipments were made defendant quoted to complainants the same rate as that of the competing line. HELD, if the shipper desires the benefit of a rate published by a particu- lar carrier it is incumbent upon him to tender his traffic to such carrier, and failing to do so. he cannot expect the Commission to award reparation merely for the purpose of equalizing the rate he was compelled to pay with the lower rate of the competing line which he might have used. The fact complainant was quoted an equalized rate can afford no relief inasmuch as the rate shown by the tariff in force at the time was the only rate that could be lawfully applied. The existence of a lower rate via a competing line is not of itself proof that the rate charged was unreasonable, nor can the fact that after the shipments were made the defendant reduced its rates to the level of the rate via the competing line be accepted as suflEicient ground for an award of reparation. The mere reduction of a rate by a carrier, especially when induced by competition, as seems to have been the case here, is not of itself evi- dence that the former rate was unreason- able. Complaint dismissed. Cook v. Wa- bash R. R. Co., 21 I. C. C. 563, 564. (1) Complainant was engaged in the city of Baltimore in conducting an abat- toir for slaughtering live stock. It owned a side track connecting its plant with the P. B. & W. R. R., a part of the Penn. R. R. This side track had been in exist- ence 20 years and been used for the de- livery of all classes of freight except live stock. In 1891 the Union Stock Yards Co. was organized, which took over the business of the Calverton and Claremont Stock Yard in Baltimore. Prior to that the complainant had established its plant on a piece of land purchased from the Claremont Co. and adjacent thereto. The consolidated company had yards situated about two miles from the yard of com- plainant. The defendants entered into a contract with the Union Stock Yards whereby they agreed to make "the said stock yards their live stock depot for Baltimore and vicinity and shall deliver at said yard all the live stock which may be transported over their line . . . destined to the Baltimore market . . . " Defendants claimed they had a right to agree to deliver at one stock yards exclusively in Baltimore. Com- plainant's live stock was unloaded at the Union Stock Yards and then driven through the streets of Baltimore by com- plainant two miles to their yard, at con- siderable expense and annoyance. Ship- ments by complainant and its tenant over the side track was from 50 to 60 carloads a year. If live stock was deliv- ered at its yards complainant estimated it would receive 15 carloads a week. HELD, the refusal of defendants to de- liver to the side track of complainants live stock consigned thereto is unreason- able and a violation of the law. Ordered that such delivery be hereafter made. Baltimore Butchers Live Stock Co. v. P. B. & W. R. R. Co., 20 I. C. C. 124. (m) Defendants made an exclusive contract to deliver live stock to the Union Stock Yards of Baltimore. Al- 774 SPECIAL CONTRACTS, §2 (n)— (u) though complainant had its own side track and had shipped to it weekly car- loads of live stock, defendants refused to deliver to other than tiie Union Stock Yards on account of the exclusive con- tract. HELD, railroads may not make contracts which abrogate the Act; they may not refuse, because of their own contracts, to furnish a delivery that is reasonable upon tracks which they use as a terminal for complainant; they may not discriminate as between commodities in the delivery which they give where no reason exists for such discrimination excepting the presence of a contract made with a private corporation. Balti- more Butchers Live Stock Co. v. P. B. & W. R. R. Co., 20 I. C. C. 124, 128. (n) Private contracts cannot justify a violation of the Act. Arizona Ry. Com. v. Wells Fargo & Co., 20 I. C. C. 571, 574; Baltimore Butchers Live Stock Co. v, P. B. W. R. R. Co., 20 I. C. C. 124, 128; Shoemaker v. C. & P. Tel. Co., 20 I. C. C 614, 621. (o) Defendant in August, 1902, estab- lished a small exchange in Montgomery County, Md., at a point about one mile north of the boundary line separating that state from the District of Columbia. Subscribers had to pay a toll of 10c to reach persons in the District of Colum- bia, and District of Columbia calls to this exchange paid a similar toll. In 1905 this exchange was abandoned and the Chevy Chase exchange opened in the District of Columbia. The old subscribers still had to pay their tolls to calls in the Dis- trict, but calls from the District to them paid no tolls. Subsequently this ex- change was abandoned and the Cleveland exchange opened further south in the city of Washington. The old subscribers to the service given by the first ex- change, the Somerset exchange, and to the second exchange, had their contracts continued to the new exchange on the same basis as originally entered into, which gave them substantially lower rates than those charged new sub- scribers or subscribers in the District of Columbia. There were 37 of these old subscribers. Complainant asked for service on the same basis as that given to the old subscribers to the Somerset exchange. HELD, that there was no dissimilarity of circumstances which jus- tified defendants in preferring one class of subscribers over others similarly situ- ated, and defendant was unlawfully grant- ing a preference to the thirty-seven old subscribers; and the fact it had contracts with such subscribers prior to the Com- mission's being vested with jurisdiction over telephone companies could not ex- cept such special contracts from the oper- ation of the law which forbids undue discrimination and preferences. Shoe- maker V. C. & P. Telephone Co., 20 I. C. C. 614. (p) The right to contract in reference to demurrage charges is removed by the Act. Peale, Peacock & Kerr v. C. R. R. of N. J., 18 I. C. C. 25, 33. (q) It is not for the Commission in a search for justification of an award con- sented to by the carrier to inquire in re- spect to every such transaction as to whether or not actual preference or prej- udice have resulted in harm to any partic- ular person. It would be a vain attempt in many cases to undertake to ascertain with reasonable certainty just what has resulted and who has been injured by transactions of the kind. The lawmakers, assuming that such practice would nat- urally result in many instances in favor- itism and irreparable wrong, have en- acted the law which adjudges the prac- tice itself to be wrong and forbids it. Armour Car Lines v. S. P. Co., 17 I. C. C. 461, 463. (r) Congress has power to regulate commerce among the states, and no con- tract between a corporation which han- dles that commerce and a party for whom it is handled can interfere with the complete exercise of that power. In Re Contracts of Express Companies, 16 I. C. C. 246, 253. (s) Private contracts can have no effect upon the application of the lawful tariff governing a shipment. Interstate Remedy Co. v. American Express Co., 16 I. C. C. 436, 437. (t) If a contract was made with the defendants for a lower charge than the legally established rate, such contract was not binding, and its violation fur- nishes no ground for redress under the Act. Ames Brooks Co. v. Rutland R. R. Co., 16 I. C. C. 479. (u) All local regulations, private con- tracts, terms of franchises, or charters must give way when they conflict with F'ederal regulations of interstate com- merce duly prescribed by the Congress. SPECIAL CONTRACTS, §2 (v)— (z) 775 American Bankers' Ass'n v. American Express Co., 15 I. C. C. 15, 21. (v) Railroads should not be allowed to so divide and diversify themselves by contract and traffic agreements as to work a practical discrimination. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. 73, 77. (w) Complainant's coal mine was lo- cated on the C. & S. Ry., which line ran in a southerly direction to Trinidad and connected with the A. T. & S. F. Ry. The Victor Fuel Co., complainant's competi- tor, was engaged in mining in the same district at points on the C. & S. E. Ry., which ran east and west through Ludlow. The stock of this line was owned by the Victor Fuel Co. and it had a trackage contract with the C. & S. Ry. by which it might send coal originating on its line and destined to points on the A. T. & S. F. Ry. over the tracks of the C. & S. Ry. The C. & S. E. Ry. under the contract was not permitted, however, to haul over the tracks of the C. & S. Ry. traffic origi- nating at points on the line of the C. & S. Ry. The Victor Fuel Co. was given by the A. T. & S. F. Ry. the same rate on coal from points on the C. & S. E. Ry. to points on the A. T. & S. F. Ry. as the rate from Trinidad, and the C. & S. E. Ry. was allowed ]0c per ton as its division of this through rate. Complainant at Lud- low was obliged to pay the full local rate of 40c per ton from Ludlow to Trinidad in addition to the rate from Trinidad to points on the A. T. & S. F. Ry. The Colorado Fuel & Iron Co., another com- petitor of complainant, owned the Colo. & Wyo. R. R. running from Jansen, a point located a short distance southwest of Trinidad, in a southwesterly direction and connecting with the A. T. & S. F. Ry. at Jansen. This competitor was given, from its mines located on the lines of the Colo. & Wyo. R. R., to points on the A. T. & S. F. Ry., the same rate as the rate from Trinidad to points on the A. T. & S. F. Ry. and the Colo. & Wyo. R. R. was allowed 10c per ton as its division of this through rate. HELD, this rate adjustment resulted in an unlawful pref- erence against complainant. Railroads should not be allowed to so divide and diversify themselves by contract and traffic agreements as to work a practical discrimination. The rate of 40c from the mine of the complainant to Trinidad, when the coal was for points upon the A. T. & S. F. Ry., was unreasonable to the extent it exceeded 25c, and it should apply to this coal at Trinidad a rate 10c per ton less than the local Trinidad rate. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 15 L C. C. 73, 77. (x) There can be no valid contract between a railway and a shipper that a certain rate shall be charged, for the rail- way rate is a matter of public concern. Beatrice Creamery Co. v. I. C. R. R. Co., 15 L C. C. 109, 128. (y) Contracts with single shippers are of doubtful legality. Western Oregon Lumber, etc., v. S. P. Co., 14 L C. C. 61, 70. (z) A terminal company was given authority by an act of the Texas legis- lature to conduct a wharfing business and acquired certain grants of land at Galves- ton made to one Huntington. The grants authorized Huntington to construct and maintain terminal facilities thereon for the use of the S. P. R. R. and S. S. Sys- tems. The terminal company entered into an agreement with one Young, an exporter of cottonseed products, under which it allowed him the exclusive use of a certain dock and warehouse, with the shed, platform and tracks thereon, located on the land granted as aforesaid. Young was to pay a certain annual rental in lieu of the published wharfage charge of leper 100 lbs. imposed upon other shippers. Young agreed to route his shipments over the lines controlled by the S. P. Co., which owned a controlling interest in the terminal company. Under the terms and by force of the agreement, Young was given room at the wharf for sacking, grinding and storing his products. He controlled space on the pier 1,370 feet long, erected at a cost to the terminal company of some $65,000; placed on the dock 20 hydraulic cake sacking machines capable of sacking 1.500 tons of cake per day, and grinding machines capable of grinding and sacking 20 tons of meal per day; and employed upon the dock some 200 men. Through these advantages he was able to appropriate to himself char- terer's commissions and the compensa- tion for loading and unloading steamers and cars. No other shipper was able to secure like advantages on the wharf in question. In less than two years under the contract he controlled nine-tenths of all the export cottonseed business of the port of Galveston. HELD, the agreement with Young constituted an unlawful 776 SPECIAL CONTRACTS, §2 (aa) — (jj) preference. Eichenberg v. S. P. Co., 14 I. C. C. 250; decision of Commission sus- tained, S. P. Terminal Co. v. I. C. C, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. (aa) Whatever power under its char- ter a terminal company may have to con- vey or lease its property generally does not give it authority to enter into a con- tract under the operation of which one shipper is preferred over another, and such preference cannot be secured by making a contract in the form of a lease of property. Eichenberg v. S. P. Co., 14 I. C. C. 250, 269; decision of Commission sustained, S. P. Terminal Co. v. I. C. C, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. (bb) If a carrier and a mine owner make a contract for the fuel supply of the carrier which does violence to the Act or to the decisions of the courts, or is op- posed to public policy, they are in no bet- ter position than the parties to any other contract which violates the legal prin- ciples relating thereto. Traer v. C. & A. R. R. Co., 13 I. C. C. 451, 457. (cc) Plaintiff, a successful bidder for construction work on defendant carrier's line, specified in the construction con- tract for a lower rate than the published interstate rate for the transportation of the materials, supplies and men to be used in carrying out the contract. HELD, the concession was not unlawful under the Interstate Commerce Act, and plain- tiff was not prevented by reason thereof from recovering for the loss of materials occasioned by defendant's negligence. Santa Fe, P. & P. Ry. Co. v. Grant -Bros. Const. Co. (Ariz. 1910), 108 P. 467, 470. (dd) A carrier will not be estopped, by the act of its agent in quoting a rate less than the published rate, from re- pudiating an unlawful contract for the transportation of interstate commerce at such lower rate; and where a shipper re- lies upon an agreement of the carrier, made either purposely or inadvertently, no estoppel will arise, for the reason that the agreement upon which the shipper re- lies is in itself illegal and void, and estop- pel can never be founded upon an illegal act or contract. Baltimore & O. S. W. Ry. Co. V. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 909. (ee) The right of private contract be- tween the shipper and the carrier has been wholly abrogated by the enactment of the interstate commerce law. Balti- more & O. S. W. Ry. Co. V. New Albany Box and Basket Co. (Ind. 1911), 94 N. E. 906, 909. (ff) Where a private contract for an interstate rate was entered into in Sep- tember, 1901, and after it was performed the shipper commenced an action to re- cover from one of the railroad companies a sum claimed to be overcharges paid to such company upon its proportion of the rate agreed upon, and the railroad com- pany, to avoid payment, claimed that the contract was unlawful and void, the bur- den of proof was upon it to establish the facts which constituted such invalidity. K. C. S. Ry. Co. V. Albers Commission Co.. 79 Kan. 59, 99 P. 819, 824. (gg) In September, 1901, it was not unlawful for connecting railroad lines to make a joint rate with a shipper for the transportation of grain from one state to another, and a contract of this character was valid and binding upon the parties thereto if there was no established rate under the provisions of the Interstate Commerce Act in force which applied to such traffic. K. C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 59, 99 P. 819. (hh) The general rule that where con- necting roads, each having a legally es- tablished local rate, but no joint rate which has been filed and published as re- quired by law, cannot by contract make a joint rate for less than the sum of the two locals, has no application where such roads have no established local rates. Kansas C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 59, 99 P. 819. (ii) Where connecting railroads enter into a valid contract with a shipper to transport grain from one state to another at a stipulated joint rate, in which agree- ment the proportion of such rate to be re- ceived by each road is specified, one of such roads cannot afterwards change the amount which it is to receive under such contract by joining with other connecting lines in establishing a joint rate with them, by which it secures a larger sum for the transportation of similar freight between the same points named in the former agreement. Kansas C. S. Ry. Co. V. Albers Comm. Co., 79 Kan. 59, 59, 99 P. 819. (jj) In September, 1901, certain con- necting railroads entered into a contract with a grain dealer, whereby they agreed to transport grain for him from Omaha, Neb., to Texarkana, Tex., through Kansas SPECIAL CONTRACTS, §2 (kk) — (tt) 777 City, Mo,, at a stipulated joint rate. No legally established joint rate was then in force on these roads between the points named. The contract specified the pro- portion of the stipulated rate each road was to receive. A large amount of grain was shipped over these roads at this rate. The rate was not established as required by law. Afterward the shipper com- menced an action against one of the roads to recover overcharges paid to it upon its proportion of such rate for such shipment. HELD, that the failure to €.stablish the rate as required by law could not be interposed as a bar to the action. K. C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 69, 99 P. 819. (kk) Where a private contract with the carrier provides for refund to the shipper of a portion of a published inter- state rate, the contract is in violation of section 6 of the Interstate Commerce Act as amended June 29, 1906, forbidding the acceptance by the carrier of a greater or less or different compensation than that provided in the published schedules and prohibiting refunds, and such contract cannot be enforced, even though the ship- per may not have known that he was violating the law. L. & N. R. R. Co. v. Coquillard Wagon Works, Assignees, (Ky. 1912), 144 S. W. 1080, 1082. (11) Under section 6 of the Interstate Commerce Act, prohibiting a carrier from deviating from its published tariff rate, when a carrier contracts for a less rate than its legal tariff rate, and subsequently charges its regular rate, the shipper has no cause of action for a breach of con- tract. Chesapeake & O. Ry. Co. v. Mays- ville Brick Co., 132 Ky. 643, 654, 116 S. W. 1183. (mm) A carrier may recover its law- fully published interstate rate despite the fact that an officer or agent may have quoted to the shipper a lower rate. Louis- iana Ry. & Nav. Co. v. Holly, 127 La. 615. 53 So. 882. (nn) A shipper, who has obtained from a common carrier a special lower rats than the published schedule, has no ground upon which he can maintain a claim to the special rate in opposition to the schedule rate. Foster, Glasse] Co. v K. C. S. Ry. Co., 121 La. 1053, 1055, 46 So. 1014. (00) In a suit against a carrier for breach of contract in failing to observe the interstate rates from plaintiff's plant specified in an agreement and in refusing a shipping-in-transit privilege provided for therein, it is a good plea that at the time of the making of the contract the carrier had already published and filed a tariff covering the hauls in question, as required by section '6 of the Interstate Commerce Act, and naming higher rights than those stipulated in the contract, and plaintiff cannot recover on the theory that the defendant might lawfully have amended its tariffs so as to enable it to k€ep its agreement. Gulf & S. I. R. R. Co. V. Laurel Cotton Mills, 91 Miss. 166. 194, 45 So. 982. (pp) The carrier of an interstate ship- ment has the right to the rate published and filed with the Interstate Commerce Commission, and this despite a contract made either intentionally or mistakenly between the shipper and the carrier's agent for a lower rate. Sutton v. St. L. & S. F. R. R. Co. (Mo. App., 1911), 140 S. W. 76, 76. (qq) It is beyond the power of either a railroad company or a shipper to make a valid contract for a less rate than the published schedules filed with the Inter- state Commerce Commission, and not- withstanding a contract of this kind, the measure of liability of the shipper is the rate so published and filed. Pecos Val- ley & N. E. Ry. Co. V. Harris (N. M. 1908), 94 P. 951, 951. (rr) Where the carrier has published and filed interstate rates with the Inter- ^tate Commerce Commission it must ob- serve and collect them according to the schedule despite the fact that it makes a private contract with a shipper for lower rates. Houseman v. Fargo (N. Y. 1910), 124 N. Y. Supp. 1086, 1088. (ss) A shipper cannot enforce a prior private agreement with a carrier calling for lower rates than those published and filed with the Interstate Commerce Com- mission. Baltimore & O. R. R. Co. v. La Due, 128 App. Div. 594, 596, 112 N. Y. Supp. 964. (tt) Plaintiff carrier sued to recover the published charges made up of a com- bination of local rates. Defendant ship- per set up a counter claim based on a private agreement, undisputed by plain- tiff, by which the plaintiff contracted to charge the through rates. There was no evidence to show that the through rates agreed upon were less than the published through rates, nor did plaintiff show that 778 SPECIAL CONTRACTS, §2 (uu)— (bbb) there was no through rate filed with the Interstate Commerce Commission. HELD, plaintiff having failed to meet the burden of proving that the through rates speci- fied in the private agreement were illegal, defendant could not recover on his counter claim the excess collected above the private contract-rate. B. & O. R. R. Co. V. La Due, 57 Misc. 614, 616, 108 N. Y. Supp. 659; reversed 128 App. Div. 594, 112 N. Y. Supp. 964. (uu) The agent of an initial carrier quoted to defendant shipper a rate on an interstate shipment lower than the two published interstate rates of the initial and connecting carriers, which consti- tuted the lawful rate from point of origin to destination, no joint through rate being in effect. Plaintiff connecting car- rier upon receiving the goods paid to the initial carrier the published interstate rate covering the initial carrier's portion of the haul. HELD, the plaintiff, under section 6 of the Act as amended June 29, 1906, could recover of the shipper both the money advanced to the initial carrier and also the published charge covering its portion of the haul, irrespect- ive of whether it had or had not notice of the contract rate quoted to defendant. A. T. & S. F. Ry. Co. v. Bell (Okla. 1912), 120 P. 987. (vv) A carrier of an interstate ship- ment must collect charges according to the class and rate filed in compliance with the Interstate Commerce Act, irrespect- ive of any agreement between it and the shipper as to the class or rate to be ap- plied. Hardaway v. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1021. (ww) The Interstate Commerce Act has no bearing upon the right of a state to refuse to enforce a special contract limiting the liability of a carrier, though made in a foreign state. Louisville & N. R. R. Co. V. Smith (Tenn. 1911), 134 S. W. 866, 872. (xx) Plaintiff shipper made a contract with defendant rail carrier for the car- riage of goods from points in the United States to domestic ports and thence to European ports at a specified rate for the entire haul. Plaintiff had no negotiations with the ocean carriers. HELD, even though the defendant was compelled to pay the ocean carriers, for their portion of the haul, a rate that would make the compensation received by defendant less than the published interstate rate to the domestic ports, the contract was not in- valid, since the Interstate Commerce Act ioes not apply to the rate contracted for. St. L. S. F. & T. Ry. Co. v. Birge-Forbes Co. (Tex. 1911), 139 S. W. 3, 4. (yy) Where in a suit by a shipper against a carrier for breach of a contract granting a specified rate, the contract set out is legal on its face, the burden is on the carrier to show that it violates the Interstate Commerce Act. St. L., S. F. & T. Ry. Co. V. Birge-Forbes Co. (Tex. 1911), 139 S. W. 3, 5. (zz) Prior to the passage of the Inter- state Commerce Act, defendant carrier, in consideration of a tract of land deeded by plaintiff to it, contracted to issue and deliver annual passes to plaintiff and his wife, for and during their natural life, entitling them to free transportation over • defendant's entire system of railway and steamship lines, and to issue like passes to their five children for a period of five years. HELD, the land conveyed having greatly increased in value, plaintiff could not rescind the contract and get back the land, since the performance of the agree- ment by the defendant was prevented by the Interstate Commerce Act as amended June 29, 1906, forbidding carriers from acceptng a greater or less or different compensation than that provided for in their published schedules. Cowley vs. N. P. Ry. Co. (Wash. 1912), 123 P. 998, 1000. (aaa) Prior to the passage of the In- terstate Commerce Act, defendant car- rier, in consideration of a tract of land deeded by plaintiff to it, contracted to issued and deliver annual passes to plain- tiff and his wife, for and during their natural life, entitling them to free trans- portation over defendant's entire system of railway and steamship lines, and to issue like passes to their five children for a period of five years. HELD, plaintiff could not recover damages for the re- fusal of the defendant to perform the contract, since defendant was prevented from so doing by operation of the Inter- state Commerce Act as amended June 29, 1906, forbidding carriers from accepting a greater or less or different compensa- tion than that provided for in their pub- lished schedules. Cowley v. N. P. Ry. Co. (Wash. 1912), 123 P. 998, 1001. (bbb) Prior to the passage of the In- terstate Commerce Act, defendant car- rier, in consideration of a tract of land SPECIAL CONTRACTS, §2 (ccc)— §3 (b) 779 deeded by plaintiff to it, contracted to issue and deliver annual passes to plain- tiff and his wife for and during their nat- ural life, entitling them to free trans- portation over defendant's entire system of railway and steamship lines, and to issue like passes to their five children for a period of five years. HELD, the Inter- state Commerce Act as amended June 29, 1906, forbidding carriers from accepting a greater or less or different compensa- tion than that provided for in their pub- lished schedules, prevented the perform- ance of the contract by defendant. Cow- ley V. N. P. Ry. Co. (Wash. 1912), 123 P. 998, 999. (ccc) The published schedules of de- fendant Great Northern Ry. named a rate of 85c from Stavanger, Norway, to Seat- tle, Wash., with the proviso that the de- fendant should have 75c for its portion of the haul from the Atlantic Seaboard to Seattle, and in case the best ocean rate obtainable brought the total charge above 85c, the total rate should be 75c, plus the best ocean rate to be secured. Defendant contracted with plaintiff ship- per to transport for the entire distance ai 85c. Defendant procured of the ocean carrier a rate of 38.7c and adding this to the 75c minimum exacted a charge of $1,137. Plaintiff shipper sued on the con- tract to recover the excess exacted above 85c. HELD, in the absence of proof by defendant that the conditions of ocean transportation were such as to make the contract rate of 85c unlawful under the tariff schedules mentioned, it was not proved that the contract was unlawful, and plaintiff was entitled to the posses- sion of the property upon paying the con- tract rate to the defendant. (Rudkin, .T.. dissenting). Fisher v. G. N. Ry. Co., 49 Wash. 205, 211, 95 P. 77. (ddd) When a rate has been fixed and properly posted and published within the meaning of the provisions of the Inter- state Commerce Act, it must prevail without regard to any agreement fixing a different rate. Fisher v. G. N. Ry. Co., 49 Wash. 205, 210, 95 P. 77. (eee) Defendant carrier's line ex- tended from Kansas City to Spokane. The Mo. Pac. Ry. extended from St. Louis to Kansas City. Defendant contracted with plaintiff railroad to transport free of charge some newly built cars from St. Louis to Spokane. The Mo. Pac. Ry. did not join in this contract. The de- fendant and the Mo. Pac. Ry. did not publish any joint rate from St. Louis to Spokane. Defendant's rate from Kan- sas City to Spokane was $90 per car. Be- fore the shipment moved defendant learned that the rate contracted for was contrary to its tariff filed with the Inter- state Commerce Commission and so noti- fied plaintiff. HELD, defendant, despite the contract to the contrary, was obliged and entitled to collect the published charges. Coeur D'Alene & S. Ry. Co. v. U. P. R. R. Co. (Wash. 1908), 95 P. 71, 75. (fff) Rates agreed upon between the parties have no standing in law. The rate which was collected was the law- fully established rate in effect at the time of movement via the line of the carrier and it would have been a violation of law to have collected any other rate. Wilkoff Bros. Co. v. P. & L. E. R. R. Co., Unrep. Op. 467. §3. Criminal Liability. (a) Defendant initial carrier made a contract with a shipper to haul goods destined for export from Kansas City to New York City at the published rate then in effect over the lines of defend- ant and its connecting carriers. Sub- sequent to the making of the con- tract, the connecting carriers, without the consent of the initial carrier, raised the rates for their portion of the haul and duly published them, so as to make the lawfully published rate from Kan- sas City to New York City higher than that specified in defendant's contract with the shipper. HELD, in an indict- ment under the Elkins Act for grant- ing concessions defendant was guilty, despite the existence of its contract with the shipper, for accepting less than the duly published increased rates. C. B. & Q. Ry. Co. V. U. S., 157 Fed. 831, 835. (b) Where a carrier, under a private contract with a shipper, pays back from the published interstate rate to the shipper a sum of money as an allow- ance for the service rendered by the shipper in bringing carloads of its prod- ucts from its plant over its private plant tracks to the tracks of defendant carrier, it is guilty of a violation of the Elkins law forbidding a carrier from granting a rate less than the published rate. C. & A. Ry. Co. v. U. S., 156 Fed. 558, 561. 780 SPECIAL CONTRACTS, §4 (1) (a) — (k) §4. Damages for Breach. §4 (1) Jurisdiction of Commission. See Allowances, §2 (ff), §14 (g); In- terstate Commerce Commission, §14 (aa); Reparation, §3 (o). (a) Where a shipper makes a spe- cial contract of transportation, thereby gaining special advantages not open to the public generally, he cannot re- cover daixiages against the carrier for breach thereof, despite the fact that he did not know that the published rates and schedules made no provision for the services contracted for. C. & A. R. R. Co. V. Kirby, 225 U. S. 155, 166, «2 Sup. Ct. 648, 56 L. ed. 1033. (b) A carrier is bound to collect tae legally published rate, and a shipper cannot recover in a suit for overcharge on the basis of a rate agreed upon by special contract with the carrier where the special agreement is not filed with the Commission. K. C. S. Ry. v. Albers Comm. Co., 223 U. S. 573, 596, 32 Sup. Ct. 316, 56 L. ed. 556. (c) The power of the Commission to require switch connections is not found- ed upon any contractual relationship existing between carriers and those entitled to invoke the benefit of the statute, and the Commission is without jurisdiction to compel defendant to spe- cifically perform a contract in respect thereto or to award damages for the breach thereof. Ralston Townsite Co. v. M. P. Ry. Co., 22 I. C. C. 354, 3.5. (d) An unpublished agreement be- tween a shipper and carrier cannot be the basis of award of damages by the Commission. The Commission has no authority to administer a remedy in applications for relief based solely upon a contractual relationship between the parties, and whatever may be the rights and equities of the parties in the courts the Commission can only award dam- ages where there has been a violation of the Act to Regulate Commerce. Wood- Mosaic Flooring & Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 458, 459. (e) Where a complainant has a con- tract with a carrier for the spotting of cars which it is able to break, it must do so before it complains it is unjustly discrirninated against by the manner in which cars are spotted for its competitors. Alan Wood Iron & Steel Co. V. P. R. R. Co., 22 I. C. C. 540, 547. (fg) The Commission has no author- ity to approve or enforce a private agreement made between shippers and carriers concerning charges for transpor- tation, nor is it bound by such agree- ment, when the reasonableness of such charges are challenged in the mode prescribed in the Act. The Commis- sion will not undertake to interfere or construe an agreement, nor to de- termine its legal effect, nor to see that a tariff shall be issued in compliance therewith. But such an agreement may be regarded as an admission as between the parties executing it of strong evi- dentiary value that the rate agreed upon is reasonable and such evidence will be considered by the Commission together with all other facts, circum- stances and conditions that may reason- ably apply to the matters under investi- gation. Hood & Sons v. D. & H. Co., 17 I. C. C. 15, 18. (h) Allowances for handling cars to and from an industry are mere matters of contract between the shipper and the carrier, over which the Commission has no primary control. Crane R. R. Co. v. P. & R. Ry. Co., 15 I. C. C. 248, 254. (i) The Commission cannot under- take by its orders to ratify the agree- ment of parties as to past or future rates. Holley Matthews Mfg. Co. v Y. & M. V. R. R. Co., 15 L C. C. 436, 437. (j) Where a carrier agrees with a shipper that a rate exacted shall be conceded to be unreasonable providea the Commission will agree not to es- tablish the lower rate for the future, such agreement cannot be ratified by the Commission or reparation, awarded thereon without a finding by the Com- mission that the rate exacted was unreasonable. Holley Matthews Mfg. Co. V. y. & M. V. R. R. Co., 15 I. C. C. 436, 437. (k) Where a defendant railroad has agreed with a shipper to allow it a cer- tain sum for services performed by the shipper in moving cars over switching tracks connecting the storage tracks with the shipper's buildings and fac- tories, the Commission has no authority to enforce a specific performance of such a contract, or to award damages for the breach thereof. General Elec- tric Co. V. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. SPECIAL CONTRACTS, §4 (1)— §5 (f) 781 (1) The Commission has no juris- diction to award damages against a railroad for its failure to carry out a contract to maintain a station at a cer- tain point. Eddleman v. M. V. R. R. Co., 13 I. C. C. 103, 104. (m) Complainant, a short line rail- road, carried traffic between LaSalle, III, and LaSalle Junction, 111., 6i/^ miles, making connection at the latter point with defendant. November 1, 1906, de- fendant informed complainant that it would not pay complainant the allow- ances previously in effect, except on traffic on which complainant named through rates to or from LaSalle. No provision for allowances to complainant was made in defendant's tariffs. Com- plainant asked an order compelling de- fendant to pay it for traffic hauled be- tween such points upon which no joint through rates were established and asked that allowances be made to it on the basis of the agreed compensa- tion in effect prior to November 1, 1906. HELD, the power of the Commis- sion to award reparation does not ex- tend to the division of rates between connecting carriers. Claims ex con- tractu are not recognized by the Com- mission; it cannot order the payment of money for services performed, nor for a debt due one carrier from another on account of joint rates for a joint service. Reparation deried. LaSalle & Bureau County R. R. Co. v. C. & N. W. Ry. Co., 13 I. C. C. 610, 612. (n) The agreement of carriers to establish with a shipper certain rates cannot be enforced by the Commission, since its duty is to prevent the exten- sion of unreasonable rates and unjust discriminations, Rhinelander Paper Co. V. N. P. Ry. Co., 13 I. C. C. 633, 636. §5. Discrimination Through Contract. See Allowances, §7 (d), §8 (1) (c), §8 (5) (a); Baggage Transfer, §1 (b); Passenger Fares and Facilities, §13 (c), (d), (f); Reparation, §17 (g). (a) Defendant carrier made a special contract with plaintiff for the transpor- tation of horses by which it agreed to make the haul within a particular time, to make a particular connection, and to carry by a particular train. The ship- ment was to move at the regular rate. This expedited service was not provided for in its published tariffs and was not open to all. HELD, the contract was in violation of sections 3 and 6 of the Act forbidding unreasonable preferences in rates or regulations. Plaintiff could not recover damages for a breach there- of for delay of the shipment in transit. C. & A. R. R. Co. V. Kirby, 225 U. S. 155, 165, 32 Sup. Ct. 648, 56 L. ed. 1033. (b) Contracts cannot justify unjust discrimination. Baltimore Butchers Live Stock Co. v. P. B. & W. R. R. Co., 20 I. C. C. 124, 128; Shoemaker v. C. & P. Tel. Co., 20 I. C. C. 614, 621. (c) No violation of the Act can be predicated upon the fact that a carrier makes with one independent company a contract more favorable than with an- other for a service which the carrier is bound or undertakes to perform. Merchants Cotton Press & Storage Co. V. L C. R. R. Co., 17 I. C. C. 98, 104. (de) A contract between a religious association and a carrier by which the latter agrees not to stop trains on Sunday cannot in any degree justify undue or unreasonable discrimination between stations on its line. Lock Lynn Construction Co. v. B. & O. R. R. Co., 17 I. C. C. 396, 399. (f) Between April 1 and Aug. 4, 1907, complainant shipped carloads of ice from Los Angeles, Cal., to Yuma, Ariz., upon which a rate of $3 was assessed. Complainant attacked this rate as un- reasonable to the extent that it ex- ceeded $1.90. In March, 1907, com- plainant protested against the $3 rate and was assured by the defendant that the same would be reduced prompt- ly to $1.90. April 4, 1907, defendant's agents in California were instructed to protect a rate of $1.25 on ice -shipped from producing points to icing points In said state. April 8, 1907, the $1.25 rate was applied to Yuma under the mistaken idea that Yuma was a Cali- fornia point. Nov. 27, 1907, the $1.25 rate was for the first time lawfully published and put into effect. It was kept in effect until May 25, 1909, when the $3 per ton rate was restored. Com- plainant contended that it made its contract to supply tne ice in question to defendant in view of the $1.90 rate promised it. The rate asked by de- defendant on most shipments moved prior to July 25, 1907, was $1.25 per ton. Whenever bills were rendered at $3 per ton payment was not made until Nov. 14, 1907, and on that date 782 SPECIAL CONTRACTS, §5 (g)— §7 (a) these bills, together with the balance of the $3 rate on bills first rendered at $1.25, were paid. Complainant tes- tified that there was no other pro- ducer of ice in California that could have entered into a contract such as the one made by complainant be- cause no other company was in posses- sion of cars and other facilities for the transportation of ice as needed by defendant. HELD, no evidence being Introduced to show the $1.90 rate to be reasonable, reparation should be de- nied, since to sanction as a just basis for reparation the private understanding prior to the shipments, the rate remain- ing unchanged until the shipments were made, would be to establish a prece- dent for the grossest discrimination and favoritism. Armour Car Lines v. S. P. Co., 17 I. C. C. 461, 462. (g) In 1903 complainant established a starch manufacturing plant at Cedar Rapids, la., and in 1908 had $500,000 invested in it and $150,000 working cap- ital. For many years a large cereal mill had been located in Cedar Rapids and enjoyed milling-in-transit privileges on grain. Before establishing its plant complainant consulted with defendant carriers and was assured that it would be granted as liberal transit privileges as were allowed to other manufacturers of grain products at Cedar Rapids. In 1908 defendants withdrew from com- plainant the milling-in-transit privileges on grain manufactured into starch and established starch rates resulting in increases of from 25 to 100 per cent. Milling-in-transit privileges were not withdrawn from other manufacturers located at Cedar Rapids who made products other than starch from corn. Complainant had no competitors in the manufacture of starch located at Cedar Rapids, but on account of the withdraw- al of the privileges complainant was at a serious disadvantage in the purchase of corn at various points on defendants' lines. HELD, complainant was unduly discriminated against by the withdrawal of such privileges and defendants should adjust their rates so as to remove such discrimination. Douglas & Co. v. C. R. I. & P. Ry. Co., 16 I. C. C. 232; rehearing denied, 21 I. C. C. 541. (h) If a terminal company may make a contract with a shipper of cotton- seed products and give him thereby certain privileges which it does not give to other shippers of the same com- modities, it may also make similar contracts with regard to cotton or other products, and thus secure to favored shippers the control of the export busi- ness of the port of Galveston. The giving of undue preference to any shipper is condemned by the statute, and it can make no difference that such preference is given by a contract which purports to be a lease of property. To hold otherwise would in effect sanction a device to evade the law. Eichenberg V. S. P. Co., 14 L C. C. 250, 269; decision of Commission sustained, S. P. Terminal Co. V. I. C. C, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. IV. ACTIONS TO ENFORCE. §6. Defenses. See Courts, §2. (a) Where a contract with a railroad company is in contravention of the Act to Regulate Commerce by reason of granting the shipper rates lower than those lawfully published, defendant can- not be estopped from setting up such illegality as a defense to a suit at law for damages for breach thereof. Taenzer & Co. v. C. R. I. & P. Ry. Co., 191 Fed. 543, 551. V. AS EVIDENCE OF REASONABLE RATES. ^ §7. In General. (a) On shipments during September and October, 1906, of stacked chimney brick from Brazil, Ind., to Minnesota Transfer, complainant was assessed on two carloads 19c and on one carload 231/^c. The combination of locals be- tween these points via Arthur, 111., was 13c. December 10, 1906, pursuant to a promise made August 6, 1906, to com- plainant, defendant established the 13c rate. June 3, 1908, it canceled it and established a through rate of $2.35 per ton, the 13c rate amounting to $2.60 a ton. No evidence was offered by de- fendants to rebut the presumptive un- reasonableness of the 231/^c rate. HELD, the charges assessed were unreasonable. Reparation awarded on the basis of 13c. No order entered as to future rates in view of the reduction to $2.35 per ton. Alphons Custodis Chimney Construction Co. v. V. R. R. Co., 16 I. C. C. 600, 601. SPECIAL CONTRACTS, §7 (b)— STORAGE, (a) 783 (b) A contract between an express company and railroad companies over whose lines it operates providing that the former shall not charge less than a certain percentage over the railroad rate applying on the same commodity between the same points, cannot be con- sidered as a controlling factor in pass- ing upon the reasonableness of the ex- press rates. The Commision will, of course, notice the railroad rate as af- fording a basis of comparison, but the law requires the fixing of just and rea- sonable charges and the authority of the Commission to prescribe a reason- able rate is not restricted by the terms of any agreement between the express company and the railroad com- pany. Reynolds v. Southern Express Co., 13 I. C. C. 536, 539. SPECIAL. Damages — See Loss and Damage, §13. Rates — Advanced Rates, §5 (4) (a), §8 (1) (bb), §8 (2) (a): Crimes, §7 (I); Equalization of Rates, §8 (f) ; Evidence, §64 (cc) ; Passenger Fares and Facilities, §1 (f) ; Repa- ration, §2 (00), §14; Tariffs, §3 (1) (m). Services — See Expedited Ser- vice; Facilities and Privileges, §5 (a), §6 (a), §9, §10; Reasonableness of Rates, §31; Tariffs, §4 (a), (m); Transportation, §8. SPOTTING CARS. See Allowances, §8 (5). STATE RATES. See Evidence, §13 (6). STATE REGULATION. See Interstate Commerce, §4. STOCK YARDS COMPANIES. CROSS REFERENCES. See Common Carrier, §2 (a), §3 (a); Exclusive Contracts (b); Special Contracts, §2 (I); Terminal Facili- ties, §3 (h), (i). I. STATUS. (a) A stock yards company which is not engaged in the railroad business except that it leases tracks owned by It to an independent railroad corporation is not a common carrier, since a carrier must actually engage in the transporta- tion of goods or persons from point to point. United States v. Uniou S, & T. Co., 192 Fed. 330, 341. (b) Complainant is engaged in the city of Baltimore in conducting an abat- toir for slaughtering live stock. It owns a side track connecting its plant with the P. B. & W. R. R., a part of the Pa. R. R. This side track has been in ex- istence 20 years and been used for the delivery of all classes of freight except live stock. In 1891 the Union Stock Yards Co. was organized, which took over the business of the Calver- ton and Claremont Stock Yard in Balti- more. Prior to that the complainant had established its plant on a piece of land purchased from the Claremont Co. and adjacent thereto. The consolidated company had yards situated about two miles from the yard of complainant. The defendants entered into a contract with the Union Stock Yards whereby they agreed to make "the said stock yards their live stock depot for Balti- more and vicinity and shall deliver at said yard all the live stock which may be transported over their line . . . destined to the Baltimore market . . ." Defendants claim they had a right to agree to deliver at one stock yards exclusively in Baltimore. Com- plainant's live stock was unloaded at the Union Stock Yards and then driven through the streets of Baltimore by complainant two miles to their yard, at considerable expense and annoyance. Shipments by complainant and its ten- ant over the side track amounted to from 50 to 60 carloads a year. If live stock was delivered at its yards com- plainant estimated it would receive 15 carloads a week. HELD, the refusal of defendants to deliver to the side track complainant's live stock con- signed thereto was unreasonable and a violation of the law. Ordered that such delivery be hereafter made. Baltimore Butchers Live Stock Co. v. P. B. & W. R. R. Co., 20 I. C. C. 124. STORAGE. (a) On shipments of flour upon the domestic rates to the ports of Phila- delphia and New York, defendants al- lowed four days' free storage in Phila- delphia, while ten days were allowed in Jersey City, when destined to New York, and three days additional to that city,' with one additional day for light- erage from Jersey City to the New York docks, thus making substantially fourteen days from the time the flour 784 SUBSTITUTION OF TONNAGE, §1 (a)— §2 (c) arrived at Jersey City to the time of delivery. Other carriers at New York, comFeting with defendants, had refused to reduce the free storage time at New York, but these carriers did not enter Philadelphia. Under the plead- ings the sole question was, whether Philadelphia was discriminated against, as compared with New York, and no question was raised as to the reason- ableness of the free storage time at either city. HELD, on account of com- petition, Philadelphia was not unduly discriminated against. Brey v. Penn. R. R. Co., 16 I. C. C. 497, 500-501. SUBSTITUTION OF TONNAGE. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. II. LEGALITY OF SUBSTITUTING. §2. In general. III. POLICING BY CARRIERS. §3. In general. CROSS REFERENCES. See Facilities and Privileges, §15, §20. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. (a) The Commission will not under- take to frame a code of transit rules gov- erning privileges at transit points. The traffic officials of the carriers have the duty and the responsibility under the law of initiating rates. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 296. (b) On account of the abuses incident to the present privilege at transit points accorded by carriers, the Commission re- fuses to suspend its rule of June 25, 1908, providing that while it is not expected the identity of each carload of grain, lum- ber, etc., can or will be preserved, it is unlawful to substitute at the transit point, or forward under the transit rate, tonnage or commodities that do not move into that point upon that rate. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. R. 280, 296. (c) On account of difficulties incident to the present privileges accorded to car- riers at Detroit the Commission recom- mends the adoption of a flat-rate system by which the full local rates are paid to the Detroit points regardless of the final disposition of the commodity shipped and by which outbound shipments of grain from these points are carried at a flat- rate regardless of the point of origin, provided the grain be "from beyond." In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 297. II. LEGALITY OF SUBSTITUTING. §2. In General. (a) The Commission by the views it has expressed in this case does not in- tend to modify in any respect its opinion expressed In the Matter of Substitution of Tonnage at Transit Points, 18 I. C. C. 280. In Re Transportation of Wool, Hides and Pelts, 23 I. C. C. 151, 174. (aa) It is impracticable to preserve the identity of inbound and outbound lumber at a yarding-in-transit point. Sondheimer Co. v. I. C. R. R. Co., 20 I. C. C. 606, 608. (b) Defendant's tariff provided for a concentration and compression privilege at Fort Smith, Ark., which might be ex- ercised during the season from Sept, 1 to Aug. 31. Between Sept. 9, 1908, and April 28, 1909, complainants shipped cot- ton to Fort Smith for compression and the same was destroyed by fire in the compress on May 17, 1909. They were unable to secure other cotton until after the expiration of the season on Aug. 31. Defendant's tariff made no provision as to the contingency of fire. Shortly afterwards the tariff was amended and provided that where cotton was burned in compress other cotton secured in the following season might be shipped out at the balance of the through rate. Com- plainants paid the full local rate to Fort Smith, which was not shown to be un- reasonable. HELD, the tariff before its amendment was not unreasonable so as to entitle complainant to reparation to the net amount due from their expense bills. The amendment to the concentra- tion rule was improper in encouraging unlawful substitution of local cotton. Following Conference Ruling of June 29, 1909, FURTHER HELD, no transit priv- ilege should extend beyond one year. Henderson & Barkdull v. St. L. I. M. & S. Ry. Co., 18 I. C. C. 514, 515. (c) Under evidence indicating that burnt cotton is often fully as valuable as low grade cotton; that bales burned slightly on the outside may contain per- fect cotton on the inside; and that a lower rate on burnt cotton would prob- ably induce fraudulent substitution, the public interest is held not to require the SUBSTITUTION OF TONNAGE, §2 (d)— (k) 785 establishment of a lower rate on burnt cotton than on other cotton in view of the small amount of the same actually transported. Lesser v. Georgia R. R., 18 I. C. C. 478, 480. (d) Under the transit practices at Montgomery, Ala., expense bills for in- bound shipments were frequently loaned by one shipper to another without the transfer of the commodity to which the bills related. A shipper having a carload of cotton to forward was able to get a lower rate by reason of the favor of one of his neighbors than could be secured under the published tariff. HELD, such practice was an unlawful substitution. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 293. (e) Tariffs permitting privileges in transit should recognize the obvious fact that loss of wheat at the milling, clean- ing, or drying point will result and should not permit a shipment from said point of a weight equal to the weight of the raw material shipped into such point, since the local shipper at the transit point may by adding new material to the shipment defeat the through rates. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 288. (f) A local shipper at a point where transit privileges are allowed should not be permitted to ship out from the transit point a shipment equal in weight to that received at the transit point for the pur- pose of enabling such local shipper to be placed on an equal footing with his competitors at the point of origin and the point of destination. In Re Substitu- tion of Tonnage at Transit Points, 18 I. C. C. 280, 289. (g) The practice by jobbers of send- ing forward to retailers from transit points mixed carloads of various com- modities as transit of solid carloads of such commodities is not unlawful where there is no local supply at the transit point, the billing is canceled or all ton- nage disposed of locally and the tonnage and billing on hand are checked at rea- sonably frequent intervals, and billing in excess of tonnage on hand is canceled, selecting for such cancelation the oldest billing, but in so far as there may be local supply of any of the commodities sent forward on this transit arrangement, the carrier must look out that substitu- tion of the local supply is not made to complete the deficiency caused by local consumption. In Re Substitution of Ton- nage at Transit Points, 18 I. C. C. R., 280, 291, 292. (h) Where jobbers at transit points in shipping to dealers make up mixed carloads of grain received in part on transit rates and in part on non-transit rates, the shipments represent the av- erage of the various shipments received, and corresponding billing should be can- celed by the carrier instead of permit- ting the entire mixed carload to be charged against a solid carload from which it could not properly be produced. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 292. (i) Makers of mixed feed milled to- gether at a transit point a number of grains and sometimes cottonseed meal and molasses, producing what was prac- tically a new commodity from various substances, some received upon transit rates and others secured either locally or upon non-transit rates. The cars of the mixture thus produced were forwarded from the transit point in solid cars of grain. HE5LD, the practice was improper and should be forbidden where there is such a process of manufacture and such a loss of identity of the inbound com- modity that the shipment forwarded may be said to be a new creation. In Re Sub- stitution of Tonnage at Transit Points. 18 I. C. C. 280, 292. (j) Certain tariffs provided that non- transit commodities (such as stone, grit, or molasses) might be added to transit commodities (such as grain or seeds) at transit points, and a weight of the mix- ture equal to the weight of the inbound transit commodities forwarded as prod- uct. HELD, the tariff was unlawful in that a less-than-carload lot of the non- transit commodity went forward at a lower rate than the less-than-carload rate properly applicable, and even lower than the carload rate from the transit point proper. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 292. (k) Mixed feeds and like products must go forward from the transit points in amounts containing at least the car- load minimum weights of transit com- modities taking the transit rates, and with the proper local rate (either car- load or less-than-carload as the weight may be) imposed upon the non-transit commodities in the mixture. This rule must be followed wherever the non- 786 SUBSTITUTION OF TONNAGE, §2 (1)— §3 (a) transit property added is sufficient in amount to form a really calcu- lable portion of the mixture. A like rule must be applied where the dealer desires to include a load of non-transit grain or other commodity in a carload of transit property. If the transit portion of the shipment is to move upon the balance of a carload rate it must be of itself not less than the carload minimum in weight, and the non-transit tonnage in the car must be charged with the proper local rate. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 293. (1) At certain transit points the price of commodities was frequently dependent upon the expense bill for the inbound shipment furnished by the seller, a higher price being paid if such bill was peculiarly valuable for outbound ship- ment. HELD, the additional price paid in consideration of expense bills of a cer- tain character amounted to a purchase of the bills and the practice should be pre- vented by the carriers. In Re Substitu- tion of Tonnage at Transit Points, 18 I. C. C. 280, 293. (m) Under transit privileges at Mem- phis, Tenn., the rates for the transporta- tion of cotton to that city were higher than net rates, a refund being given upon proof of shipment of a like weight of cotton via the line of the same carrier. Expense bills for inbound shipments were held by the cotton factors or com- mission merchants representing the growers. Expense bills for outbound shipments were held by the buyers rep- resenting the consumers. No refund could be secured without the presenta- tion of the expense bills for each move- ment. The result was that many ex- pense bills were sold b>' the buyers to the factors for an amount equal to one- half of the refund to be gained. Some factors remitted the refund to their principals; some were able to remit only a portion through having to buy out- bound express bills. Other factors re- tained the refunds, leaving their prin- cipals to pay the gross rates to Memphis. HELD, the entire system was unsatisfac- tory and should be cured by the install- ation of a system of flat rates. In Re Substitution of Tonnage at Transit Points, 18 L C. C. 280, 294. (n) Dealers at certain transit points frequently have billing in hand without having an equivalent amount of the com- modity represented by the same. The practice was to retain the billing until a non-transit supply of the commodity could be secured, and then to send the non-transit supply forward upon the tran- sit bill. HELD, the practice was unlaw- ful. To be absolutely lawful the cancel- lation of billing should be automatic, so that when the commodity represented by the billing is disposed of, either locally or to a non-transit point or to a transit point, the inbound billing cover- ing it should be canceled. In Re Substi- tution of Tonnage at Transit Points, 18 I. C. C. 280, 294. (o) Outbound shipments from transit points at balances of through rates made Defore the receipt of the inbound ship- ments depended upon for the transit privilege are unlawful. In Re Substitu- tion of Tonnage at Transit Points, 18 I. C. C. 280, 294. (p) Billing covering the commodity disposed of should be canceled to prevent substitution of tonnage at transit points. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 294. (q) The northwestern transit tariffs provided that upon receipt of grain at the transit point the through rate to the final destination should be paid and that such destinatioin should be indicated. The rates to various milling points be- tween Minneapolis and Chicago were higher than those from Minneapolis to Chicago. Shippers had the grain deliv- ered to the milling point and there paid the Minneapolis to Chicago rate. They were then able to secure oats from a transit point enjoying a different rate and forward them, or forward oats from a non-transit point, or refrain altogether from completing the transit transaction. HELD, the practice was unlawful. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 295. (r) A tariff providing for the forward- ing at a transit point of agricultural im- plements, vehicles, etc., as the transit of inbound shipments of logs, is improper. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 296. III. POLICING BY CARRIERS. §3. In General. (a) Shippers at points enjoying tran- sit privileges on wheat were accustomed to blend different kinds and grades of wheat received from different points of SUBSTN. OF TONNAGE, §3 (b)— SWITCH TRKS. AND SWITCH'G, §2 (a) 787 origin and at varying rates and to dispose of a portion of the flour made therefrom in the local market at the transit point. They then shipped out the remainder on the bills of lading which would give them the lowest through rate from point of origin to point of destination. HELD, the local supply and local disposition should be kept separate from the transit supply and product by the carrier; the billing should be properly canceled for all local disposition; proper and frequent check should be made of grain and product and billing on hand; and billing in excess of grain and product on hand should be can- celed, the oldest billing being selected for that purpose. In Re Substitution of Ton- nage at Transit Points, 18 I. C. C. 280, 290. (b) Certifications by the shippers do not excuse carriers for determining for themselves and at their peril that ship- ments carried at other than the regular local rates from the point of shipment are entitled to exceptional or transit rates. They will not be allowed to put in tran- sit privileges either through competition with each other or through the desire to hold local rates up to the highest pos- sible point, without taking entire respon- sibility for the results of such privileges and the uses made of the same. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 297. (c) It is the duty of shippers to sub- mit to all necessary policing of their ship- ments if they desire to enjoy transit priv- ileges. They may also fairly be required to certify that shipments offered by them are entitled to go forward upon the tran- sit rates. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 297. SUSPENSION OF RATES. See Interstate sion, §11. Commerce Commis- SWITCH TRACKS AND SWITCHING. I. CONTROL AND REGULATION. §1. In general. §2. Jurisdiction of Commission. II. ABSORPTION OF SWITCHING. §3. In general. III. DISCRIMINATION AND REASON- ABLENESS OF CHARGES. §4. In general. §5. Incidental services. §6. Reciprocal switching. §7. Right to connection. §8. Validity of regulations. §9. Reparation. §10. Tariffs and publication. CROSS REFERENCES. See Allowances, §8 (5); Tap Lines. I. CONTROL AND REGULATION. §1. In General. See Courts, §11 (c) ; Interstate Com- merce, §3 (c), §4 (n); Tap Lines, §9 (b), (g), (i). (a) A spur used or necessary exclu- sively in the transportation of persons is as much subject to the Act as are "freight depots, yards and grounds" used or necessary "in the transportation or delivery of property." West End Im- provement Club V. O. & C. B. R. & B. Co., 17 I. C. C. 239, 244. (b) The Hepburn Act, placing inter- state railroads, including switches, spurs, tracks and terminal facilities of every kind, under the control of the Interstate Commerce Commission, does not inter- fere with state control of the road and its appurtenances so far as it is engaged in intrastate commerce. State v. M. P. R. Co., 81 Neb. 15, 21, 115 N. W. 614. §2. Jurisdiction of Commission. See Allowances, §2 (ff ) ; Commerce Court, §6 (c), (d), §7 (a); Courts, §9 (d); Special Contracts, §4 (1) (c), (k). (a) Complainant alleged that defend- ant had entered into an oral agreement with it that complainant should grade and prepare a roadbed upon which de- fendant agreed to lay and construct a sidetrack, furnish all the material neces- sary therefor, connect said sidetrack with its main line and operate and main- tain the same. This was an application to the Commission to require defendant to perform the alleged agreement which was denied by defendant. HELD, that (1) the Commission has no jurisdiction to enforce the specific performance of an agreement of this nature; (2) while sec- tion 1 of the Act gives the Commission power upon complaint to investigate and determine all questions as to the safety, practicability, justification and compensa- tion involved in the construction, mainte- nance and operation of a switch connec- tion with a lateral branch line of rail- road or private sidetrack when the same has been constructed, it is a condl- 788 SWITCH TRACKS AND SWITCHING, §2 (b)— §4 (b) tion precedent to the exercise of the power of the Commission that such pri- vate track should be actually constructed in sach a manner that a physical connec- tion is practical and safe. The Commis- sion cannot order the construction of a private sidetrack by a railroad company. Ralston Townsite Co. v. M. P. Ry. Co., 22 I. C. C. 354, 356. (b) The Commission has no power to order the installation of a sidetrack; its function goes to determining questions concerning switch connections with ex- isting sidetracks. Ralston Townsite Co. V. M. P. Ry. Co., 22 I. C. C. 354, 355, 356. (c) Cars of coal from Gallup, N. M., were carried by the A. T. & S. F. Ry. to its terminals at El Paso, Tex., upon in- structions received from the consignee. The A. T. & S. P. Ry. switched the cars about one-half a mile to an exchange track owned by the T. & P. Ry. The A. T. & S. F. Ry. thereupon issued a transfer bill to the T. &. P. Ry. and advised the latter as to the name of the consignee. The latter without any instructions from the consignee switched the car from the ex- change track to the consignee's ware- house located on a spur of the T. & P. Ry. Both carriers published an inter- state switching charge of $5. HELD, the shipment was interstate so as to give the Commission jurisdiction over the switch- ing charge, since it did not at any time before arrival at the consignee's ware- house pass into his possession. West Texas Fuel Co. v. T. & P. Ry. Co., 15 I. C. C. 443, 446. (d) Where a railroad has agreed with a shipper to allow it a certain sum for services in moving cars over switching tracks connecting the storage tracks with the shipper's buildings and factories, the Commission has no authortity to enforce specific performance of such a contract, or to award damages for the breach thereof. General Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. II. ABSORPTION OF SWITCHING. §3. In General. See Absorption of Charges, §1 (b); Allowances. §5 (a); Blanket Rates, §10 (a); Discrimintion, §15 (e) ; Reconsignment, §3 (o). (a) Where a carrier having the line haul formerly switched cars to a shipper's plant without charge, but was forced to discontinue such free serv- ice by the, delivering road which es- tablished a switching charge of $3, its failure to absorb such charge is not shown to be unreasonable or discrim- inatory. Curtis Bros. & Co. v. S. P. Co., 23 I. C. C. 372. (b) The general rule seems to be that carriers absorb switching charges of connecting lines at points of origin or destination and upon competitive traffic. Curtis Bros. & Co. v. S. P. Co., 23 I. C. C. 372, 373. (c) A switching charge is not un- lawful because nine months later it was absorbed. Deeves Lumber Co. v. C. & N. W. Ry. Co., 19 I. C. C. 482, 483. (d) The cancellation of a joint rate and the absorption of switching charges, in order to remove discrimination, will not be disturbed. Minneapolis Thresh- ing Machine Co. v. C. St. P. M. & O. Ry. Co., 17 I. C. C. 189, 190, 192. (e) Where a carrier absorbs switch- ing charges on carload shipments and furnishes two cars, under the rule making the rate the same as on one car, the switching charge should be absorbed on both cars. Milwaukee Falls Chair Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 217, 218. III. DISCRIMINATION AND REASON- ABLENESS OF CHARGES. §4. In General. See Allowances, §11 (c), §12 (2) (dd); Discrimination, §3 (aa), §7 (e) ; Routing and Misrouting, §4 (z) ; Tariffs, §7 (e); Terminal Facilities, §3 (e). (a) Complainant built a spur track 2.71 miles long to the C. B. & Q. R. R. tracks from its mines at Thayer to Thayer Junction. The C. B. & Q. R. R. built and operated spur tracks to other mines in the Springfield group in which Thayer is located but refused to build or, after construction, to operate the connection between its rails and com- plainant's mine. At other mines ex- cept Thayer, the C. B. & Q. R. R. had operated spurs without extra charge above the group rate applicable from stations on its own rails. HELD, that such a practice created a case of unjust discrimination. C. W. & V. Coal Co. v. C. B. & Q. R. R. Co., 23 I. C. C. 13, 16. (b) A belt line haul, necessary to make delivery, may justify a greater rate for delivery in one part of the same SWITCH TRACKS AND SWITCHING, §4 (c)— (i) 789 town than in another. Pierce v. P. & L. E. R. R. Co., 23 I. C. C. 89, 90. (c) Fuel oil switched at St. Louis was assessed 2c per 100 lbs. on an arbitrary weight of 7.4 lbs. per gallon. The estimated weight of the shipments which moved from Wood River, 111., as assessed by the carriers having the line haul was 7,867,837 lbs. Under the estimated weight on which the switch- ing charges were assessed, the ship- ments would have weighed 8,914,106 lbs. There was no switching tariff providing for estimated weight, but one issued subsequent to the time the shipments moved based the switching charges on the estimated weights provided in the classification or tariffs governing the road haul. HELD, the switching charges assessed were unreasonable to the ex- tent the weight on which they were as- sessed exceeded the weight on which charges for the line haul were made. Reparation awarded. Standard Oil Co. V. I. T. R R. Co., 23 I. C. C. 369. (d) Complainant, operating a factory for the manufacture of sash, doors ana blinds near Sisson, Cal., was connected with the S. P. Co. by a spur track owned by the McCloud River R. R. Co. For several years prior to Oct. 5, 1910, the S. P. Co., which received the line haul on traflBc to and from complainant's plant, performed free of charge the switching service involved in handling cars over the spur track. On the date mentioned this privilege was withdrawn and the McCloud River R. R. Co. estab- lished a charge of $3 per car for the switching service and entered upon the performance thereof. The S. P. Co. only absorbed switching charges on competi- tive traffic. HELD, the complainant is not subjected to discrimination as com- pared with other shippers similarly situ- ated. Complaint dismissed. Curtis Bros. & Co. v. S. P. Co., 23 I. C. C. 372. (e) A delivering road performing only a switching service is entitled to compensation therefor. Curtis Bros. & Co. V. S. P. Co., 23 I. C. C. 372, 373. (f) While almost universally the charge for switching service is on a per car basis, the assessment of class rates for switching at Baltimore is not found to be unlaw^ful. Merchants' & Mfrs. Ass'n V. P. R. R. Co., 23 I. C. C. 474. (g) Complainant attacked the switch- ing charges on interstate traffic at Balti- more. These switching charges were not assessed upon the usual basis of a certain charge per car, but were class rates, ranging from lie, first class, to 5c, sixth class. The fifth-class rate of 6c applied to a weight of 40,000 lbs., and resulted in charges of from $24 to $40 per car. The defendants proposed, and to some extent executed, a scheme of joint commodity rates, which appeared to reduce the existing charges about two-thirds. Such rates applied only from certain specified territory and added various differentials to the local rates, and were not attacked by complainant. HELD, the carriers have opened chan- nels of interchange between their re- spective terminals, and as to traffic from some territories have provided charges which are not shown to be unreasonable for the interchange service. On traffic from other territories they have fixed charges which obviously are intended to be prohibitory. This is unduly dis- criminatory. The method in force of assessing switching charges at Balti- more is not unduly discriminatory as compared with cities where the per car basis obtains, but except where joint through rates are in effect the class rates collected for the switching of in- terstate traffic in carloads are unreason- able, and should not exceed the flat Baltimore rate by more than the fol- lowing: On first and second classes, 5c per 100 lbs.; on third, fourth, fifth and sixth classes, and upon commodities not moving under class rates, 2c per 100 lbs. Carriers given 30 days to amend their tariffs. Merchants & M'f'rs Ass'n V. Penn. R. R. Co, 23 L C. C. 474, 478, 479. (h) The proposed substitution of class and commodity rates for a switch- ing charge imposed by a wharf com- pany for moving traffic over piers at Gal- veston is found unreasonable, the prior charge of $1.75 a car appearing to be con- sistent with charges for switching and terminal services at other points in Texas. In Re Wharfage Charges of the Galveston Wharfage Co., 23 I. C. C. 535, 546. (i) A carrier may not perform a switching service for one plant and de- cline to perform it at a competing plant in the same general territory on the ground that it is more convenient to per- 790 SWITCH TRACKS AND SWITCHING, §4 (j) — (n) form the service at the one plant than at the other, or because it has been cus- tomary to do it at one and not at another. Alan Wood Iron & Steel Co. v. P. R. R. Co., 22 I. C. C. 540, 545. (j) The destination or the construction of an interchange track at one plant does not justify the carrier in refusing to per- form at that plant the same service which it performs at a competing plant, where such interchange has not been designated or provided. Alan Wood Iron & Steel Co V. P. R. R. Co., 22 I. C. C. 540, 545. (k) The "local import tariff" and practices covering the transportation of imported sugar from New Orleans or Port Chalmette, La., to Gramercy, La,, was attacked as discriminatory against New Orleans and Port Chalmette refineries. The rate from shipside to Gramercy was l^/^c per 100 lbs. on carload lots. The tariff provided for absorption of switch- ing charges and the cost of loading cars not to exceed ^c per 100 lbs. Complain- ant introduced expert evidence to the effect that the rate would not cover the actual cost of the service. The refinery located at Port Chalmette contended that the cost of getting the sugar into the re- finery at Gramercy was less than the cost of handling the sugar from boats to the former refinery by machinery. De- fendant's officer testified that the actual loading cost was less than 7-lOc; that the switching charge was $2 per car, leaving $3.29 per car for the 38-mile haul to Gramercy, and that the average cost of operation between these points was less than $1.84 per freight train mile. It was also stated that defendant received more revenue from refined sugar to in- terstate destinations; that the refinery at Gramercy had increased other traffic and encouraged the growth of sugar cane along the line; that the Gramercy refin- ery could construct a wharf and receive sugar by boat; that the normal move- ment by empty cars is toward Gramercy. and that the rates on refined sugar from New Orleans and Gramercy are the same, HELD, the present tariff does not effect undue discrimination, especially in view of the fact that the refinery at Port Chal- mette is not located upon and ships no sugar over defendant's line; and that the defendant is not transporting sugar to Gramercy at less than cost. In Re Trans- portation of Sugar, 22 I. C. C. 558, 563. (kk) Because a spur track is included in service of one carrier, it does not fol- low that servics of another carrier with- out a spur track is inadequate. South- ern California Sugar Co. v. S, P. L, A. & S. L. R, R. Co., 19 L C. C. 6, 11. (1) The practice of naming specific consignors and consignees as entitled to a certain service, such as a switching service, is objectionable, not alone on account of form, but because it may of- ten effect an actual discrimination as be- tween persons similarly situated and equally entitled to the carrier's service. This complaint is not likely to arise, if the service is effective within a certain defined area. Pierce Co. v. N. Y. C. & H. R. R, R, Co., 19 L C. C. 579, 581. (m) The granting of free transfer service to the private sidings of some consignees and refusing such service to complainant is held to be unjust discrim- ination. Pierce Co. v. N. Y. C. & H. R. R. R. Co., 19 I. C. C. 579, 581. (n) Coal from Bernice, Pa., to Utica. N. Y., was carried under a joint rate of $1.50 per gross ton and this rate included $5 per car of the switching charge for delivery from the tracks of the N. Y. C. & H. R. R. R. at Utica to trestles and yards of coal dealers and industries lo- cated within the yard limits on the switching lines of defendant, N. Y. O. & W. R. R. As a result of the absorption of a portion, 30c per ton, of the switch- ing charge, the net switching charge to complainant's industry averaged $2.95 per car. The average distance covered was 1% miles. Two engines each carrying a crew of five men were required to do the switching service. The switching movements in the N. Y. C. & H. R. R. R. yards were subject to the train opera- tions of that company. The switching tracks ran almost the entire distance on public streets, crossing at grade 19 streets, two street car lines, and a swing bridge. Complainant's industry siding was reached by a sharp grade. The switching was performed under difficult conditions and at large expense. The switching charge for dressed meat and live stock was $5 per car, and for cotton, machinery, lumber, stone, brick, lime, ce- ment, etc., $3.50 per car. HELD, as com- pared with the charge on other commodi- ties and taking into view the difficulties involved the charge attacked was not shown to be unreasonable. Utica Traffic Bureau v. N. Y. O. & W. R. R. Co., 18 I. C. C. 168, 170. SWITCH TRACKS AND SWITCHING, §4 (o)— §5 (b) 791 (o) Where a tariff in naming a rate from Bernice, Pa., to Utica, N. Y., in- cludes therein $5 per car of the switch- ing charge assessed at Utica for hauling the coal from the tracks of the carrier to the industries located on the defend* ant switching line, the tariffs of the Bernice to Utica carrier should be read together with the charge of the defend- ant switching carrier at Utica in order to determine the reasonableness of the lat ter's charge, Utica Traffic Bureau v. N. Y. O. & W. R. R. Co., 18 I. C. C. 168, 171. (p) Following the decision in West Texas Fuel Co. v. T. & P. Ry. Co., 15 I. C. C. 443, defendants' switching charges of $5 per ear for switching carloads of vari- ous commodities from industries located near the industries involved in the former case to the tracks of other car- riers in El Paso, Tex., are held to be un- reasonable to the extent that they ex- ceed $3 per car, and this rule is applied where the defendant performs a service ■^ placing empty cars at the plants of these industries to be loaded and switches the cars back to the tracks of the car- riers to be transported to interstate points. West Texas Fuel Co. v. T. & P. Ry. Co., 17 I. C. C. 491, 493, 494. (q) Complainant attacked the switch- ing charge of $5 per car on coal from the terminals of the Santa Fe lines at El Paso to the spur track of the T. & P. Ry. The distance was one mile and the grade very slight. Formerly the switching charge was only .$1.50, and complainant located his business on the spur track of the T. & P. R. R. in reliance upon that charge. The State Railroad Commission of Texas estab- lished switching charges of $1.50, $2 and $2.50 for one mile and less, two miles and over one mile, and over two miles, respectively. The service involved the movement of a loaded car in one direc- tion and an empty in the opposite di- rection; but when a loaded car was switched in both directions, the charge was exacted for each movement. In over 30 cities in Texas the maximum switch charge was $2.50. Defendants charged $2 and $3 per car to two oiher points in El Paso on non-competitive interstate traffic and involving more dif- ficult switching hauls. HELD, the evi- dence showed the $5 rate exacted to be excessive to the extent it exceeded $3. West Texas Fuel Co. v. T. & P. Ry. Co., 15 I. C. C. 443, 447. (r) Where switching for another shipper was much larger than that done for complainant, it could naturally be done at a less cost per car. West Texas Fuel Co. v. T. & P. Ry. Co., 15 I. C. C. 443, 447. (s) An action was brought to recover for the amount paid defendant for switching cars to plaintiff's elevator, on the alleged ground that the exaction thereof was a discrimination. Upon the facts found the trial court ordered judgment for $1. HELD, a carrier is bound to treat all shippers with equality and without discrimination. It is also bound, unless there be custom or con- tract to the contrary, when it receives shipments in carload lots, to make fle- livery at the consignee's place of busi- ness when located on its industrial tracks, or to connecting carriers and switching roads, when the consignee's business is located thereon. It is not, however, bound at its own charge to make such delivery beyond its own or leased tracks. Banner Grain Co. v. G. N. Ry. Co. (Minn., 1912), 137 N. W. 161, 161. (t) Where movement amounted to switching, switching charges should have been assessed. Block-Pollak Iron Co. v. C. & N. W. Ry. Co., Unrep. Op. 520. §5. Incidental Services. See Alowances, §12 (2) (e), (f); Re- frigeration, §3; Reparation, §6 (rr); Tap Lines, §4; Terminal Facilities, §3 (I); Through Routes and Joint Rates, §14 (c). (a) Order of the Commission in 18 I. C. C. 310 temporarily enjoined, on the ground that the defendants were not bound to perform the industrial track service ordered by the Commission, as part of their transportation service, it appearing that the industrial plants were located from one-fifth of a mile to seven miles from defendant's main tracks and the cost of drayage would amount to from $7.50 to $25 a car. Ftirther held, that where defendants voluntarily per- formed such service under an arrange- ment with the industrial plant, they might make a reasonable charge there- for. (Mack, J., dissenting.) A. T. & S. F. Ry. Co. V. I. C. C, 188 Fed. 229, 239, S. P. Co. V. I. C. C, 188 Fed. 241. (b) The carrier having the line haul should deliver traffic so handled with- out additional charge to industries lo- cated upon its tracks within its switch- 792 SWITCH TRACKS AND SWITCHING, §5 (c) — (d) ing limits. Curtis Bros. & Co. v. S. P. Co., 28 I. C. C. 372, 372. (c) Complainant built a spur track to connect its factory with the main line of defendant. Defendant refused to operate the same unless its standard form of industrial switch track agree- ment was signed, one clause of which required the industry to indemnity it from liability and claim from loss and damage by fire caused by the sparks of burning coal from its locomotive on Its spur track. The spur track ran be- tween lumber piles and there were shaving and sawdust and other inflam- mable material on the premises. hxOLD, It is no part of the duty of the carriers either at common law or under the Act to spot cars at a warehouse or factory, or to do more than set them on the spur track and off its own right ot way. If it undertakes to do so, with or without additional compensation, there is no reason why it may not predi- cate its undertaking upon the condition that it shall not be liable to the indus- try for fire losses of the nature pre- sented. Imperial Wheel Co. v. St. L. I. M. & S. R. R. Co., 20 I. C. C. 56, 58. (d) Complainant jobbers of Los Ange- les, Cal., attacked the switching charge of $2.50 per car, as unduly discriminatory, (made by defendants at Los Angeles) for delivering or receiving interstate carload freight to or from industries located upon spurs or sidetracks within the switching limits, whether the charge was incident to a system-line haul or to a foreign-line haul. They offered no evidence of the unreasonableness of the charge per se. Defendants designated a territory extend- ing for 6 or 7 miles as comprising the switching limits and had constructed therein numerous tracks, main lines, branch lines, industry spurs, classifica- tion tracks, team tracks, freight-shed tracks, hold tracks, and repair tracks, and also stations, freight-sheds, derricks, roundhouses, etc. Freight moving in car- loads was delivered at team tracks, freight sheds, or industry spurs. The charge complained of was not imposed for deliveries at team tracks and freight- sheds, but only at industry spurs. These spurs varied in length, some leading di- rectly from the main track into or along- side of the industries served, while oth- ers were of greater length and branched at one or more points, short spurs run- ning off from the "lead" to serve other industries in the immediate neighbor- hood. These spurs were constructed of material furnished by the carriers at the expense of the shippers and were de- signed to give to the carrier constructing same the control of the traffic from the industries located thereon. None of the industries furnished motive power for the switching, which was done from the inter- change tracks to the industry by the loco- motives of the delivering line. Cars destined to industry spurs were not placed first at a spur depot, or on the team tracks, or at the sheds, and later switched to oblige the consignee. A train of freight cars went to the breakmg- up yards which lay at the entrance to the city, and there was divided up with respect to the character of the freight in the various cars and their destination. No one had access to the cars at this point. This yard was purely a railroad facility. After the cars were segregated they were taken to the tracks to which they were ordered — some to the various team tracks, distributed along the line, some to different industries, some to the railroad jobbers or to freight-sheds or other stock-yards. Before the cars were placed the consignees were given notice of the tracks to which they were to be sent, so that there was no confusion, and the switch engines which placed the cars on one track also served to haul the "loads" in and "empties" out at the other tracks. This service was not more ex- pensive to the carrier than if on all cars there had been given team track delivery. Where a system-line haul was involved, the car was switched to or from the in- dustry by the same carrier that made the haul from or into Los Angeles. Where a foreign-line haul was involved, the car was shipped from or into Los An- geles by one carrier and hauled from or to the industry on the spur track by another carrier. In the latter case the switching carrier received a portion of the through rate in addition to the $2.50 switch charge involved. HELD, the charge attacked with respect to a system- line haul was unlawful since the carrier made no team track delivery but simply substituted therefor the spur track deliv- ery to the industry. Having performed no service in addition to the delivery re- quired by it under its general freight rate it could not lawfully make an extra charge. But as to the foreign-line haul the charge complained of was not unlaw- ful, since the delivery was made upon the SWITCH TRACKS AND SWITCHING, §5 (e)— §7 (e) 793 tracks of a separate carrier which had the right to impose a reasonable separate charge therefor in addition to the divis^ ion of the regular rate received by it. (Knapp, chairman, dissenting.) Asso- ciated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 322; order respecting system-line haul enjoined (Mack, J., dissenting), A. T. & S. F. Ry. Co. V. I. C. C, 188 Fed. 229; S. P. Co. v. I. C. C, 188 Fed. 241. Pacific Coast Job- bers and MTrs Ass'n v. S. P. Co., 18 I. C. C. 33. (e) Common carriers are under no duty to extend their transportation obli- gations with the extension of great in- dustrial plants, and to accept and deliver car within the inclosure over a network of interior switching tracks constructed as plant facilities to meet the require- ments of the industry. General Electric Co. V. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 237, 242. §6. Reciprocal Switching. (a) Where a carrier has entered into a reciprocal switching arrangement, it must accept shipments for delivery to the extent of its capacity. Crescent Coal & Mining Co. v. B. & O. R. R. Co., 20 I. C. C. 559, 565. §7. Right to Connection. See Infra, §7 (gg) ; Common Carrier, §1 (aa), §3 (f); Interstate Com- merce Commission, §14 (Pi); Through Routes and Joint Rates, §11 (2) (f). (a) Under the Act as amended June 29, 1906, authorizing the Commission to order a main line to establish in proper cases a switch connection with a branch line, the application can only be made by a shipper and not by a carrier. I. C. C. v. D. L. & W. R. R. Co., 216 U. S. 531, 537, 30 Sup. Ct. 415, 54 L. ed. 605. (b) A road is a lateral branch road within the meaning of section 1 of the Act as amended June 29, 1906, requiring the installation of a switch connection, when it is tributary to and dependent up- on another for an outlet; where it is es- sentially a feeder, contributing traffic and capable of exchanging such traffic with the other road It is not such where it is in effect an independent and com- peting line. Nor is this any less the case because it may not compete as to a por- tion of the territory involved. The ques- tion is to be determined according to the relation which the branch line bears to the railroad with which a switch connec- tion is asked. This relation is one of road to road, and not of shippers or terri- tory. A road does not have the charac- ter of a branch or lateral road as to some shippers in that territory, and not have it as to others. B. & O. S. W. R. R. Co. v. U. S., 195 Fed. 962, 967. (c) Under section 1 of the Act to Regulate Commerce authorizing the In- terstate Commerce Commission to order the installation of switching connections, the Commission has no authority to enter such an order where the applicant is not a shipper but is a lateral branch line. D. L. & W. R. R. Co. V. I. C. C, le^ Fed. 498. (d) Section 3 requires every common carrier subject to the provisions of the Act to accord all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, and provides: "But this shall not be con- strued as requiring any such common car- rier to give the use of its tracks or ter- minal facilities to another carrier en- gaged in like business." If carriers are allowing such use of their tracks or ter- minal facilities the proviso of section 3 can have no application. Terminals are either open or they are not; and if a car- rier holds itself out as ready to permit the use of its tracks at a certain charge the fact that such charge may be pro- hibitive does not mean that the terminals are not open. On the contrary, it would seem to be a potent argument for the re- duction of charges for the use of tracks or terminal facilities already extended. That carriers offer each to the other the use of their respective tracks or termi- nals is shown by the fact that freight is actually interchanged after its arrival at the terminal, and for this service charges are provided in tariffs published and filed. It follows that having elected to perform this service the charge therefor must be reasonable. Merchants & Mfr'rs. Ass'n v. Penn. R. R. Co., 23 I. C. C. 474, 476. (e) Complainant asked that the de- fendant be required under section 1 of the Act to accord it a switch connection with its coal mine some 8 miles south of Wilkes-Barre, Pa. This connection was demanded with a mountainous grade of the main line of the defendant. This track had been in continuous operation for many years and not a single accident had occurred which could be attributed to the operation of switchings and sid- 794 SWITCH TRACKS AND SWITCHING, §7 (f)— (m) ings during the entire period of its opera- tion. It was shown that numerous switch- ings and sidings in the anthracite regioii are constructed on grades, many of which are greater than the one involved in complainant's demand. Complainant had actually mined about 50 tons of coal, but showed by the testimony of engineers that 500,000 tons is a conservative esti- mate of the coal deposits on its land, and that its breaker under construction would be capable of releasing this tonnage at the rate of 300 to 500 tons, or about ten carloads a day. Complainant had con- structed its siding and made an applica- tion in writing for a switch connection therewith. HELD, the interstate traffic has been tendered hjy the complainant within the meaning of section 1 of the Act; that there is sufficient business to justify the construction and maintenance of the proposed connection; and that the proposed connection is "reasonably prac- ticable and can be put in with safety" and should he installed. With reference to alleged damages sustained under sec- tion 3 of the Act, the complainant is left to its remedy in the courts. Ridgewood Coal Co. V. L. V. R. R. Co., 21 I. C. C 183. (f) An electric line is entitled to a switch connection with a steam road. Cincinnati & Columbus Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 494. (g) A local law under which an elec- trically operated railway may have no right to demand a switch track connec- tion and interchange of traffic with a steam railway may be controlling in so far as it relates to traffic moving wholly within the state, but it cannot be per- mitted to operate as an impediment to the movement of interstate traffic after Congress has legislated upon the subject by specifying the grounds upon which interstate shippers may demand such con- nection and interchange of traffic. C. & C. Traction Co. v B. & o. S. W. R. R. Co , 20 I. C. C. 486, 488. (gg) For forty years and more it has been the policy of the railroads to de- velop traffic and facilitate a movement by the construction of spur lines leading to industries, and so extensive has be- come this method of direct delivery by rail that it is difficult to conceive of any system which might be devised for conducting the vast volume of traffic without the spur track. In view of these conditions, the industrial spur cannot be treated as a plant facility, a shipper's convenience; it is in fact a necessity to both the carrier and the shipper under modern conditions of business and transportation. Associated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 313. (h) The safety of main-line traffic must be considered in locating switches. Reiter, Curtis & Hill v. N. Y. S. & W. R. R. Co., 19 I. C. C. 290, 292. (i) Complainant, a manufacturer of ground iron ore at Iron Ridge, Wis., prayed for an order commanding defend- ant carrier to construct and maintain a private sidetrack from its main line to complainant's mills, a distance of 425 ft. HELD, under section 1 of the amended Act, the Commission had no authority to order the construction of a private side track by a railroad company, but that its authority was limited to ordering a car- rier to make a switch connection with a private sidetrack. Winters Metallic Paint Co. V. C. M. & St. P. Ry. Co., 16 1. C. C. 587, 589. (j) In determining whether a switch connection should be ordered between complainant and defendant railroads, the Commission need not require the reason of the preference of shippers to ship over defendant's road if complainant's re- quest appears to be a proper one under the circumstances. Rahway Valley R. R. Co. v. D. L. & W. R. R. Co., 14 I. C. C. 191, 193. (k) The provisions in the Hepburn Act relating to switching connections be- tween roads is based upon the "open- gateway policy," and was intended for the benefit of the shipper who wishes to market his product in the widest prac- ticable field and have the most direct connection therewith. Rahway Valley R. R. Co. V. D. L. & W. Ry. Co., 14 I. C. C. 191, 194. (1) In determining whether a switch connection between a small line reaching several industries and defendant trunk lines should be ordered, a fair test is whether such complaint would be granted were it an application for a sidetrack to an industry. Rahway Valley R. R. Co, v. D. L. & W. Ry. Co., 14 I. C. C. 191, 193. (m) Complainant, a local railway, with its terminus at Summit, N. J., sup- plied 50 carloads of traffic a year to be transported over defendant's line run- ning out from Summit. The industries on SWITCH TRACKS AND SWITCHING, §7 (n)— §8 (b) 795 complainant's line had found it advan- tageous to route their freight over de- fendant's line, even at the expense to themselves of making transfer at Summit by wagon. It took 30 days for a carload of freight to go from a point on com- plainant's line to Buffalo by a connection other than with the line of defendant. Defendant's line at Summit was a branch line used largely for passenger service. A switch connection could be made with defendant at Summit without danger to defendant's traffic and without practical engineering difficulties. HELD, under the Hepburn Act the requested switch connection should be granted, the ex- pense to be borne by complainant. Rah- way Valley R. R. Co. v. D. L. & W. R. R. Co., 14 I. C. C. 191, 193, 194. (n) Defendant's road ran through complainant's farm of 800 acres, which was located about a mile from Peru, 111. Complainants demanded the installment of a switch on their farm for the purpose of carrying away grain. They shipped from 10 to 12 cars per year. No sufficient evidence was offered to show that the proposed switch could be safely installed or operated. The proposed switch could be reached only by the private way over complainants' land and complainants gave no indication that they would grant to other farmers a right of access to the same. Complainants intimated that they might discontinue the business of farm- ing in the near future and use the farm for manufacturing purposes. Their farm was only about a mile from the team tracks of defendant at Peru, and 1 and 4 miles respectively from other shipping points on defendant's lines provided with elevators and grain dumps. HELD, the complaint should be dismissed. McCor- mick V. C. B. & Q. R. R. Co., 14 I. C. C. Gil, 612. (o) A state railroad commission or- dered plaintiff carrier to construct an in- terchange track between another rail- road's exchange track at a junction point. The interchange track ordered was to be 500 ft. in length, 400 ft. of which would be upon the land of the plaintiff. Plain- tiff purchased this land to be used for terminal facilities and had expended large sums of money in constructing tracks, platforms, sheds, buildings and other terminal facilities. HELD, the or- der was not in violation of section 3 of the Interstate Commerce Act, providing that no common carrier should be required to give the use of its track or terminal facilities to another carrier engaged in like business. Pittsburgh, etc., R. R. Co. V. R. R. Comm., 171 Ind. 189, 210. 86 N. E. 328. (p) Although an order of a state rail- road commission, requiring a carrier to construct an interchange track may of necessity, include cars moving in inter- state commerce and inure to the benefit of such commerce, the order is not void as a regulation of interstate commerce where it specifically applies only to the transportation of passengevs and prop- erty between points within the state, and to the receiving, switching, delivering, storing and handling of such propercy. Pittsburgh, etc., R. Co. v. R. R. Comm., 171 Ind. 189, 212, 86 N. E. 328. §8. Validity of Regulations. (a) Complainant built a spur track to connect its factory with the main line of defendant. Defendant refused to operate the same unless its standard form of in- dustrial switch track agreement was signed, one clause of vvrhich required the industry to indemnify it from liability and claim from loss and damage by fire caused by the sparks of burning coal from its locomotive on its spur track. The spur track runs between lumber piles and it appeared shavings and saw dust and other inflammable material ac- cumulated on the premises. HELD, it is no part of the duty of the carriers either at common law or under the Act to spot cars at warehouses or factory, or to do more than set them on the spur track and off its own right of way. If it under- takes to do so with or without additional compensation there is no reason why it may not predicate its undertaking upon the condition it shall not be liable to the industry for fire losses of the nature pre- sented. Imperial Wheel Co. v. St. L. I. M. & S. R. R. Co., 20 1. C. C. 56, 58. (b) The operation of a private side- track by a carrier is a different matter from the operation by it of the connec- tion. If the prerequisite statutory con- ditions exist the connection must be made whether desired by the carrier or not, but in undertaking a service on a spur track off its own right of way, the carrier may attach reasonable conditions to the undertaking, and a condition re- quiring the owner of the spur track to in- demnify it against liability for fire while operating on the spur track is not un- 796 SWITCH TRACKS AND SWITCHING, §8 (c)— TAP LINES, §3 (1) (b) reasonable. Imperial Wheel Co. v. St. L. I. M. & S. R. R. Co, 20 I. C. C. 56, 59. (c) Billing at marked capacity in switching service is not condemned. Prahlow v. I. H. B. R. R. Co., 19 I. C. C. 572, 574. (d) A railroad company may enter into an agreement as to the term;3 and conditions upon which a spur track for a private customer shall be installed, and such terms and conditions are not invalid under the interstate commerce statutes, unless they do in fact involve or contem- plate some discrimination against other persons seeking or enjoying like priv- ileges. Cedar Rapids, etc., Light Co. v. C. R. I. & P. Ry. Co., 145 la. 528, 538, 124 N. W. 323. §9. Reparation. See Claims, §8 (f), (g); Courts, §11 (cc) ; Reparation, §19 (c) ; Routing and IMisrouting, §4 (q). §10. Tariffs and Publication. See Tariffs, §4 (1), (w), §11 (c). TANK CARS. See Cars and Car Supply, §10, §17. TAP LINES. L CONTROL AND REGULATION. §1. Definition of tap line. §2. Jurisdiction of Commission. §3. Test of status. (1) In general. (2) Effect of incorpora- tion. §4. When plant facility. §5. Scope of tap-line investiga- tion. II. POWERS AND DUTIES. §6. As common carriers. §7. Legality of divisions or prac- ticss. §8. Passes to officers. §9. Right to allowances. CROSS REFERENCES. See Allowances; Common Carrier; Divisions. I. CONTROL AND REGULATION. §1. Definition of Tap Line. (a) Originally it was usual to refer to all the rails used in a lumber mill operation as a "logging road," but since the practice of making allowances to the lumber companies west of the Missis- sippi Riv€r has crept in, the rails leading from the mill to or through the timber, and usually to a logging camp or company town, have come to be known as the main line or "tap line." The spurs radiating into the for- est from the point or from other points along the main line are now usually re- ferred to as the "logging road." The Tap-line Case, 23 I. C. C. 277, 285. §2. Jurisdiction of Commission. (a) The maximum division allowed to tap line is prescribed by Commission. Tap-line Case, 23 I. C. C. 549, 561. (b) Carriers are expected to submit for approval of the Commission the basis of allowances to lumber companies under section 15, where such allowances must be published. Tap-line Case, 23 I. C. C. 549, G50. (c) Where joint through class and commodity rates are in effect or are hereafter made effective to or from points on tap lines, trunk lines and tap lines will be expected to submit to the Commission for approval the basis of their divisions. Tap-line Case, 23 I. C. C. 549, 651. (d) Carriers are expected to submit to the Commision for approval reason- able and nondiscriminatory rates on forest products, when shipped from tap- line points other than the mills of the controlling companies, and also to sub- mit the basis of the division thereof. Tap-line Case, 23 I. C. C. 549, 651. §3. Test of Status. §3 (1) In General. See Allowances, §10, §11; Transporta- tion, I. (a) Whether a tap line is a common carrier .cannot be determined by mere ownership. Tap-line Case, 23 I. C. C. 277, 292. (aa) The fact that the larger part of the traffic handled is from a single mine does not determine the carrier's char- acter to be that of a plant facility rather than a common carrier. Stonega Coke & Coal Co. V. L. & N. R. R. Co., 23 I. C. C. 17, 23. (b) What is a plant facility cannot also be a common carrier for the plant and what is an industrial service can- not also be a service of transportation. The Tap-line Case, 23 I. C. C. 277, 298. TAP LINES, §3 (2)— §4 (d) 797 §3. (2) Effect of Incorporation. See Common Carrier, §1 (a), (aa); Facilities and Privileges, §1 (n). (a) The Act specifically applies "to any corporation or any person or per- sons" engaged in the transportation of passengers or property by rail from a point in one state to a point in an- other state. So far as interstate trans- portation is concerned incorporation is not a condition preced-ent to the right to be a common carrier by rail. The Tap-line Case, 23 I. C. C. 277, 291. (b) The fact that the rails, locomo- tives and cars of an industry have been turned over to an incorporated railroad company, owned and operated by the industry or in its interest, does not divest those appliances of their charac- ter as a plant facility if such in fact is the case. If the rails were laid and the equipment acquired for the use of the industry as a facility in the pro- cess of manufacture and production, and are so used, the fact that some outside traffic may be carried over the same rails does not modify the character of what is done over them for the in- dustry. If in such" a case the tracks and equipment are a facility of the plant and are so used in tue process of manufacture, what is thus done for the controlling industry cannot be re- garded as a service of transportation. A division allowed by a public carrier out of the rate under such circum- stances is a rebate to the industry. The test is: What is the real rela- tion to the industry By the tap line? The Tap-line Case, 23 I. C. C. 277, 292. (c) The mere interposition between the lumber mill and the carrier of a paper railroad incorporation that calls itself a common carrier and complies with the Act in those respects, but is owned by the mill or its proprietors, does not give legality to the so-called tap-line allowances or meet the re- quirements of the Commission. Star Grain & Lumber Co. y. A. T. & S. F. Ry. Co., 17 I. C. C. 338. §4. When Plant Facility. See Infra, §6; Advanced Rates, §22 (b); Common Carrier. (a) With few exceptions, the tap lines in the lumbering regions in the southwest are purely plant facilities. Tap-line Case, 23 I. C. C. 277, 297. (b) The common ownership of an in- dustry and a short line serving it is not in itself sufficient to divest the railroad of its status as a common carrier. On the other hand the fact that the rails, locomotives and cars of an industry have been turned over to an incorpo- rated railroad company owned and op- erated by the industry or in its in- terest does not divest those appliances of their character as a plant facility, if such in fact is the case. A line must be drawn at some point between what is transportation and a plant fa- cility or tool of the industry. Each case, however, must stand on its own facts. On the facts shown of record the service performed for the proprie- tary lumber companies by the following tap lines is not a service of transporta- tion by a common carrier: Malvern & Freeo Valley Ry., Wilmar & Saline Valley R. R., Arkansas & Gulf R. R., Little Rock, Maumelle & Western R. R. Beirne & Clear Lake R. R., Mississippi, Arkansas & Western R. R., Bearden & Ouachita River R. R., Arkansas Eastern R. R., Blytheville, Burdette & Missis- sippi River Ry., Brookings & Peach Orchard R. R., Crossett Ry., Fordyce & Princeton R. R., Homan & Southeastern Ry., Little Rock, Sheridan & Saline River Ry., L'Anguille River Ry., Oua- chita Valley Ry., Southern Pine System, Black Bayou R. R., Bodcaw Valley Ry., Mill Creek & Little River Ry., Red River & Rocky Mount Ry., Woodworth & Louisiana Central Ry., Freeo Valley R. R., Natchez, Urania & Ruston Ry., Bernice & Northwestern Ry., Dorcheat Valley R. R., Mangham & Northeastern Ry., Peach River Lines, Jefferson & Northwestern Ry., Beaumont & Sara- toga, Angelina & Neches River R. R. The Tap-line Case, 23 I. C. C. 277. (c) Tap lines do not perform a transportation service. Tap-line Case, 23 L C. C. 277, 289. (d) In the cases of the following tap lines it is held that they are mere plant facilities and not entitled to al- lowances either as divisions or switch- ing charges; Missouri & Louisiana R. R., Saginaw & Ouachita River R. R., Warren, Johnsville & Saline River R. R., Blytheville, Leachville & Arkansas Southern R. R., Gould Southwestern Ry., Memphis, Dallas & Gulf R. R., as to the switch movement from Graysonia, Ark., only; Louisiana & Pine Bluff Ry., 798 TAP LINES, §4 (e)— (g) Mansfield Ry., Louisiana & Pacific Ry., Roosevelt & Western R. R., Louisiana Central R. R., North Louisiana & Gulf R. R., as to all yellow pine mills only; Monroe & Southwestern Ry., Victoria, Fisher & Western R. R., Ouachita & Northwestern R. R., Lake Charles Ry., Louisiana Ry., Zwolle & Eastern Ry., Sabine & Northern R. R., Nacogdoches & Southeastern R. R., as to allowances from the T. & N. O. R. R. only; Gideon & North Island R. R., Poplar Bluff & Dan River Ry., Kentwood & Eastern Ry., Kentwood, Greensburg & South- western R. R., Liberty-White R. R., Natchez, Columbia & Mobile R. R. The Tap-line Case, 23 I. C. C. 549-560. (e) Complainant, a large lumber cor- poration, operated a lumber road con- necting its timber tract with the C. of Ga. Ry. under a contract whereby it received a division of 2c per 100 lbs. upon all traffic delivered to the trunk line. It also carried freight for small competitors located on the tap line. Eventually an advance was made in the lumber rate of 2c per 100 lbs. by the trunk line and the division to the tap line was increased to 5c per 100 lbs. The reasonable cost of haul- ing the lumber of the tap line was 2c per 100 lbs. The advance in rate by the trunk line was unreasonable. HELD, that the tap line so far as it was oper- ated in the interests of the complainant was a plant facility and not a common carrier. That on account of the in- crease in the division of rates with the tap line it was apparent complainant did not pay the increased rate. Repa- ration denied. Kaul Lumber Co. v. C. of Ga. Ry., 20 I. C. C. 450. (f) At Blissville, Ark., a lumber com- pany constructed a tap line connecting with defendant St. L. I. M. & S. R. R. and having 8 miles of main line and 20 miles of spurs. The stock in the tap line road was owned entirely by the lumber company. It was used exclus- ively by the lumber company to move logs from the timber tapped to its mill at Blissville. From only one point on the tap line, Shults, 2i/^ miles from Blissville, was any rate published. From Shults to Blissville a rate of Ic per 100 lbs. was established. At neither Shults nor Blissville did the tap line maintain freight or passenger stations or agents. Complainant at Chicago pur- chased lumber from the lumber com- pany which was loaded upon the cars of defendant St. L. I. M. & S. R. R. at Blissville and which had been con- structed from logs brought to Blissville over the tap line. The lumber was billed from Shults and a charge of Ic was made in addition to the published rate from Blissville. HELD, the tap line was not a common carrier but a mere plant facility of the lumber com- pany and the exaction by the defend- ants, the St. L. I. M. & S. R. R., and the tap line, was unlawful to the ex- tent that it exceeded the amount of the rate from Blissville. Reparation award- ed. Fat^auer Co. v. St. L. I. M. & S. R. R., 18 L C. C. 517, 5^. (g) Tap lines connecting lumber mills with the Cotton Belt Lines were being allowed from 2c to 6c for hauls varying from practically nothing to 150 miles, leaving the net earnings of the Cotton Belt lines as low as 4c to 8c for their haul to Fort Worth. It ap- peared that these tap lines were formerly owned by the mill owners, but were sub- sequently incorporated and given the form of common carriers; that for the most part they reached only the forests owned by their stockholders; that while they held themselves out to serve the public as common carriers, there was in fact no public reached by them except a negligible amount of incidental traffic; that they did not publish and file tar- iffs as required by law, join in through rates with the railroads, file schedules of divisions of rates, or keep accounts in accordance with the system of ac- counts prescribed by the Commission for carriers participating in interstate commerce. These conditions were true with respect to tap lines generally over the country. HELD, that any allow- ance or division made to or with a tap line that is owned or controlled, directly or indirectly, by the lumber mill or by its officers or proprietors and that has no traffic beyond the logs that it hauls to the mill, except such as it may pick up as a mere incident to its efforts to serve the mill as an adjunct or plant facility, is an unlawful departure from the published rates. Readjustment of rates suggested, calculated to elim- inate unlawful practices and give ship- pers reasonable rates. (Separate opinion by Prouty, Comm'r.) Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. 338, 345. TAP LINES, §4 (h)— §7 (a) 799 (h) Formerly defendant delivered loaded cars to complainant's exchange tracks at Catasauqua, Pa. Complainant constructed tracks leading from said ex- change tracks into its yards and sup- plied locomotives to draw the loaded cars into its yards and to return loaded cars of its products from its yards to the exchange tracks. Later other industri-es grew up beyond complainant's plant and complainant extended its tracks to such industries and charged them a stipulated price per car for moving cars to and from defendant's terminal, "^hese others industries were allowed compensation for this service which they secured from complainant. Subsequently complainant incorp rated its private railroad and demanded that defendant make it an allowance for hauling cars back and forth between complainant's yards and its team trad s. HELD, the service was not one which the defendants owed complainant a duty to perform; that defendants might prop- erly allow to other industries compensa- tion for the hauling of cars to their plants, since such service was merely the equivalent of the service rendered by defendants in placing cars on com- plainant's exchange tracks, and that complainant was not entitled to compen- sation for the services rendered by its railroad, the service being in the nature of a plant facility. Crane Iron Works V. Central R. R. Co. of N. J., 17 I. C C. 514, 518-520. §5. Scope of Tap Line Investigation. (a) Matters of this nature (the tap line Fituation) cannot be dealt with in a wholesale manner, but must be con- sidered separately and in the light of the surrounding circumstances. The findings in this investigation relate specifically to conditions found to ex- ist in this territory. Tap-line Case, 23 I. C. C. 549, 550. II. POWERS AND DUTIES. §6. As Common Carriers. See Supra, §4; Common Carrier, (a) If tnere is a holding out as a common carrier for hire, and if there is an ostensible and actual movement of traffic for the public for hire, the status of a common carrier exists, whether the holding out is by a com- pany or by an individual. But such a holding out and the existence of an actual traffic is not conclusive in all cases. Where the holding out is in furtherance of a plan to secure un- lawful advantages and the alleged car- rier is able to pick up some traflfic that is incidental to that purpose, it must be regarded simply as a cloak or device to effect unlawful results. Tne Tap-line Case, 23 I. C. C. 277, 292. (b) A tap line recognized as a com- mon carrier by the Commission must itself recognize its obligations as such by conforming its accounting method to the requirements of the Commission, by filing annual reports and lawful tar- iffs, by obeying the hours of service law and the safety-appliance acts so far as they are applicable, and other- wise fulfilling the obligations and duties imposed by the Act on carriers engaged in interstate commerce. Any omission of its duty in this regard will be re- garded as tending to show that the claim of the tap line to be a common carrier is a mere device to justify al- lowances or divisions. The Tap-line Case, 23 L C. C. 277, 295. (c) A tap line carrier cannot trans- port for a proprietary lumber company free of charge. Tap-line Case, 23 I. C. C. 277, 297. vd) No tap line that is, in fact, a common carrier engaged in interstate commerce may haul the logs to the mill of the proprietary company free of charge. A free service is inherently un- lawful. Nor may a trunk line set up a milling-in-transit privilege with a common carrier tap line by which the lumber rate is extended back through the mill point to the tree in the for- est, unless it pursues the same course with respect to forests on its own line as such practice would otherwise grant an unlawful preference. The Tap- line Case, 23 I. C. C. 277, 297, 298. §7. Legality of Divisions or Practices. See Allowances, §9 (a), (b), §12 (2), (a), (c), (d); Crimes, §7 (g); Divi- sions, IV. (a) It would be an unlawful pref- erence for a trunk line to set up a milling-in-transit privilege with a com- mon carrier tap line by which the lumber rate is extended back through the mill point to the trees in the for- est while not pursuing the same course with respect to forests on its qwn line. Tap-line Case, 23 I. C. C. 277, 298. 800 TAP LINES, §7 (b)— §9 (b) (b) Whether a tap line is a common carrier is a question of fact, but if it is a common carrier it cannot haul for the proprietary company free of charge. Tap-line Case, 23 I. C. C. 292, 297. (c) While it is not uncommon for one railroad to give the use of its rails to another railroad under a track- age agreement, a shipper may not law- fully enjoy such privilege over rails of a common carrier, particularly when the compensation for such privilege is not published and the privilege is not open equally to all other shippers. Tap-line Case. 23 I. C. C. 549, 550. (d) A shipper may not have a pref- erence over other shippers in the use of a line that claims to be a common carrier. Tap-line Case, 23 I. C. C. 549, 577. (e) A trunk line may not give track- age rights to a lumber company for a small toll. Tap-line Case, 23 I. C. C. 549, 550. (ee) Wherever an abnormal division is allowed to a railroad which is tied up with an industry there results an indirect and hidden rebate to the shipper because of his ownership of the railroad. In Re Divisions of Joint Rates on Coal, 22 I. C. C. 51, 55. (f) The discrimination caused by tap- line allowances will not be removed by ordering a reduction of the rate. In- dustrial Lumber Co. v. S. L. W. & G. Ry. Co., 19 I. C. C. 50, 53. (g) Any allowance to or division with a tap line which is an adjunct or plant facility is a preference and discrimina- tion and an unlawful departure from the published rate. Star Grain & Lum- ber Co. V. A. T. & S. F. Ry. Co., 17 I. C. C. 338, 344. (h) The C. & S. E. Ry. was owned by a coal compai y competing with com- plainants. Joint rates were in effect between the C. & S. E. Ry. and the Santa Fe. lines from points upon the C. & S. E. Ry. to points unon the Santa Fe lines east and south to Trini- dad, which took the same rates as to Trinidad. Complainant's competitor had a tr ckage contract with the C. & S. E. Ry. under which its coal moved from Ludlow to Trinidad, Complainant was located at Ludlow. No joint rates were in effect between the C. & S. E. Ry. and the Santa Fe lines and the local rate from Ludlow to Trinidad for ship- ment beyond was such as to give the competing company an advantage of 40c per ton over complainants upon shipments to points on the Santa Fe lines although the competing coal moved by the mines of complainants. HliiLD, the rates were unduly discriminatory. Defendants ordered to desist from ac- cording to coal originating upon the C. & S. E. Ry., for points upon the Santa Fe lines, lower rates than were given to complainants at Ludlow and that defendants should state the divi- sion of the joint rate allowed to the C. & S. E. Ry. in order that the com- peting coal company should not gain an advantage in that respect. Cedar Hill Coal & Coke Co. v. A. T. & S. F. Ry. Co., 16 I. C. C. 402, 403, 404. §8. Passes to Officers. See Crimes, III. (a) The affairs of the proprietary lumber company may be so inter- woven with the affairs of the tap line as to make it impossible to admit the right under the law of an officer of the tap line to use free transportation. Tap-line Case, 23 I. C. C. 277, 298. §9. Right to Allowances. See Divisions, §6. (a) Trunk lines are permitted to cancel allowances to tap lines found by the Commission not to be common carriers. Tap-line Case, 23 I. C. C. 277, 295. (b) Under their tariffs the public carriers interpret the lumber rate as applying from mills west of the Mis- sissippi River as far as three miles from their own lines. If a lumber company having a mill within that distance of a trunk line undertakes by arrangement with the trunk line to use its own power to set the empty car at the mill and to deliver it when loaded to the trunk line, it is doing for itself what the trunk line under its tariffs offers to do under the rate. In such a case the lumber company may there- fore fairly be said to furnish a facility of transportation for which it may rea- sonably be compensated under section 15, whether its tap line is incorporated or unincorporated. But an allowance under such circumstances is lawful only when the trunk line prefers for TAP LINES, §9 (O— (h) 801 reasons of its own and without discrim- ination to have the lumber company per- form the service. It is not lawful when the lumber company refuses to permit the trunk line to do the work. No allowance, however, ought to be made by a trunk line to a lumber com- pany where the mill is within a thou- sand feet of the trunk line. An allow- ance under such circumstances would be a mere device to effect an unlaw- ful payment to the lumber company. The same rule would apply where a short switch track to the mill has been torn out or is still available, but not used, in order to give the appearance of a longer haul to the mill over a spur or switch track constructed by the lumber company or by its tap line, for the purpose of securing an allowance. Tap-line Case, 23 I. C C. 277, 294. (c) Where a mill is distant more than three miles from a trunk line and is connected with the latter by a tap line not recognized by the Commission as a common carrier, no allowance or division may lawfully be made by a trunk line either to the lumber com- pany or to its tap line. Such a lum- ber company, although using rails, stands in no better position under the law with respect to its lumber than does a lumber company that uses other means of delivering its lumber to a public carrier. Where a mill is more than three miles distant from a trunk line and is connected with it by a tap line organized as a common carrier and so recognized by the Commission, the mill is to be regarded as a ship- ping point equally with all other mill points in its rate group; and the lum- ber rate is to be regarded as in effect from the mill, the tap line being en- titled to a division thereof according to the extent of its participation in the through service under the through rate. The Tap-line Case, 23 I. C. C. 277, 295. (d) No allowance may be made where the mill of the controlling com- pany is within a few hundred feet of the trunk line. Tap-line Case, 23 I. C. C. 549, 569. (e) The lumber rate west of the Mississippi River applies from the mill. In those cases where the mill is situ- ated a reasonable distance of not less than 1,000 feet from the trunk line that carrier may arrange with the lumber company to perform the service for it of transporting the loaded cars from the mill to the trunk line and may make a reasonable allowance to the lumber company for such service under section 15. The Tap-line Case, 23 I. C. C. 549, 552, 553, 559, 568, 596, 599, 603, 605, 607, 608, 611. (f) The lumber rate west of the Mis- sissippi River applies from the mill. In those cases where the mill is situated less than 1,000 feet from the trunk line that carrier may not lawfully make any allowance to the lumber company for hauling the loaded cars from the mill to the trunk line. The Tap-line Case, 23 I. C. C. 549, 552, 569, 576, 594, 597, 599, 601, 606, 608, 611, 618, 632, 641, 645, 646. (g) The lumber rate west of the Mississippi River applies from the mill. In those cases where a short switch track to the mill from a trunk line has been torn out or is still available but not used, in order to give the ap- pearance of a longer haul to the mill over a spur or switch track constructed by the lumber company or by its tap line to secure an allowance, any com- pensation allowed for such service by the trunk line to the lumber company or its tap line is unlawful. The Tap-line Case, 23 I. C. C. 549, 586, 589, 632, 646. (h) In the cases of the following tap lines it is held that they may receive as maximum allowances the divisions men- tioned and the switching charges pre- scribed. Saline River Ry., 2c per 100 lbs.; Warren & Ouachita Valley Ry., a switching rate of $2.50 per car from the Iron Mountain R. R., and 2c per 100 lbs. from the Rock Island R. R.; El Dorado & Wesson Ry., 2c per 100 lbs.; Thornton & Alexandria Ry., Ic per 100 lbs.; Doni- phan, Kensett & Searcy Ry., a switching charge of $2.50 per car from the Iron Mountain, and Ic per 100 lbs, from the Rock Island R. R.; Fourche River Valley & Indian Territory Ry., a switching charge of $1.50 per car; Prescott & Northwestern R. R., $1.50 per car; Caddo & Choctaw R. R., $1.50 per car; Mem- phis, Dallas & Gulf R. R., over the Nash- ville Division only, the Iron Mountain may allow it a switching charge of $2 per car, the connecting carriers at Ash- down may allow it 2c per 100 lbs.; Crit- tenden R. R., 2c per 100 lbs. from the Rock Island R. R. and $3 per car switch- ing from the Iron Mountain R. R.; De 802 TAP LINES, §9 (i)— TARIFFS, §1 (a) Queen & Eastern R. R., $1.50 per car; Central Ry. of Arkansas, li^c per 100 lbs.; Gulf & Sabine River R. R., Ic per 100 lbs.; Sibley, Lake Bisteneau & South- ern Ry., Ic per 100 lbs.; North Louisiana & Gulf R. R., 2c per 100 lbs. on the prod- ucts of the hardwood mill only, except when again milled or planed at Hodge, La.; Arkansas, Southeastern R. R., 2c per 100 lbs. from the Iron Mountain R. R only; Red River & Gulf R. R.', $2 per car for switching from the Iron Mountain line and 2c per 100 lbs. from the Rock Island and other trunk lines on the prod- uct of the mill at Long Leaf, La. ; Tre- mont & Gulf Ry., from the Iron Mountain R. R. and the products of the Rochelle mill, a switching charge of $1.50 per car, and on the product of various mills, di- visions of l^/^c to 2c per 100 lbs.; Nacog- doches & Southeastern R. R., $1.50 per car for switching only from the Houston East & West Texas R. R.; Texas South- eastern R. R., $2 per car for switching, from the Houston East & West Texas R. R., and 2c per 100 lbs. from other trunk lines; Timpson & Henderson Ry., 2c per 100 lbs.; Shreveport, Houston & Gulf R. R., iy2C per 100 lbs.; Groveton, Lufkin & Northern Ry., from the M. K. & T. Ry. only, a switching charge of $2 per car, and from other trunk lines 2c per 100 lbs.; Moscow, Camden & San Augustine Ry., l^/^c per 100 lbs.; Trinity Valley & Northern Ry., Ic per 100 lbs.; Trinity Valley Southern R. R., Ic per 100 lbs.; Caro Northern Ry., $2 per car; But- ler County R. R., $1.50 per car; Deering Southwestern Ry., li/^c per 100 lbs.; Mis- sissippi Valley Ry., l^^c per 100 lbs.; Paragould & Memphis Ry., switching charges of from $2 to $3 per car; Salem, Winona & Southern R. R., li^c per 100 lbs.; Fernwood & Gulf R. R., a switching charge of $2.50 a car from the Illinois Central R. R. only, and 2c per 100 lbs. from the New Orleans Great Northern R. R.; New Orleans, Natalbany & Natchez Ry., $1.50 per car for switching from two mills only; Alabama Central R. R., li/^c per 100 lbs.; Washington & Choctaw Ry., $1.50 per car. The Tap-line Case, 23 I. C. C. 549-650. (i) It is unlawful for a tap-line to re- ceive divisions in excess of a reasonable switching charge. Tap-line Case, 23 I. C. C. 549, 582. (j) Where a tap-line is merely a plant facility hauling logs to the mill, and the mill itself is situated on a trunk line. any allowance or division of rates made by the trunk line to the lumber company or the tap-line is an unlawful rebate. The Tap-line Case, 23 L C. C. 549, 552, 555, 587, 597, 599, 602, 606, 613, 635, 641, 642, 645, 646, 649. (k) No rate reduction will be ordered to remove the discrimination caused by tap-line allowances. Industrial Lumber Co. V. St. L. W. & G. Ry. Co., 19 I. C. C. 50, 53. TARIFFS. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. §2. Power of Congress. II. PUBLICATION. §3. Effect in general. (1) Adherence to published rate. (2) E r r o n e ous quotation by carrier. (3) Notice to shipper. §4. Necessity of publication. §5. Purpose of publication. III. POSTING. §6. In general. IV. CONSTRUCTION. §7. In general. §8. Ambiguity. §9. Cancellation. §10. Concurrence. §11. Conflict. §12. Cross reference. §13. Index. §14. Legality. §15. Reasonableness. CROSS REFERENCES. See Classification; Demurrage, MI; Divisions, II; Express Companies, VI; Land Grant Railroads; Recon- signment, IV; Refrigeration, IV; Reparation; Through Routes and Joint Rates, V; Water Carriers, III; Weights and Weighing, VI. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Common Carrier, §3 (b), (c), (cc), §4. (a) The Act authorizes the Commis- sion in its discretion and for good cause shown to permit changes in tariffs or fares on less than statutory notice. The Commission seeks to limit the exercise of this discretionary power to cases where actual emergency and real merit are shown. The power is not to be lightly regarded, and it will not be exercised to aid a carrier in any strategic endeavor or to aid shippers in any ordinary com- TARIFFS, §1 (b)— §3 (f) 803 mercial exigency. Acme Cement Plaster Co. V. St. L. & S. F. R. R. Co., 22 I. C. C. 283, 285. (b) A tariff cannot be used until the Commission's rules are complied with. Noble V. G. T. W. Ry. Co., 20 I. C. C. 70, 71. (c) It is within the exclusive power of the Interstate Commerce Commission and the Federal courts to determine whether the tariffs or joint-tariffs filed under the provisions of the Interstate Commerce Act are reasonable or not. Brantley Co. v. Ocean S. S. Co., 5 Ga. App. 844, 845, G3 S. E. 1129: (d) The Commission must deal with any rate question from the standpoint of the lawful tariff rates. The Act prohibits the dismissal of any complaint because it is not shown that the complainant is damaged. Indianapolis Freight Bureau v. Penn. R. R. Co., 15 I. C. C. 567, 571. §2. Power of Congress. (a) Congress has the constitutional power to adopt the policy of requiring the sale of transportation by carriers only for cash at the published rates and to prescribe appropriate means to give it effect. L. & N. R. R. v. Mottley, 219 U. S. 467, 478, 31 Sup. Ct. 265, 55 L. ed. 297. II. PUBLICATION. See Allowances, II; Demurrage, III; Divisions, II; Export Rates and Facilities, IV; Facilities and Privi- leges, III; Terminal Facilities, §4. §3. Effect in General. See Act to Regulate Commerce, II (e). I (a) The Act imposes upon common i carriers subject to its provisions the duty of establishing in a prescribed mode the rates, whether individual or joint, to be charged for the transportation in inter- state commerce of property over their lines, and the rates so established are obligatory upon carrier and shipper and must be strictly observed by both until changed in the mode prescribed. U. S. V. Miller, 223 U. S. 599, 602, 32 Sup. Ct. 323, 56 L. ed. 568. (b) Where a carrier files a tariff stat- ing that the rate between certain points shall be governed by a state classifica- tion, no rate is established by the car- rier within the meaning of section 4 of the Act, since the rates fixed by the state railroad commission may be changed without reference to the methods of changing rates prescribed by the Act. U. S. V. Standard Oil Co., 170 Fed. 988, 1000. (c) Rates filed and published as re- quired by the Act to Regulate Commerce are in force immediately and before any transportation takes place thereunder. N. Y. C. & H. R. R. R. Co. v. U. S., 166 Fed. 267, 269. (d) The law will not permit deviation from the services, facilities and priv- ileges offered in the tariffs any more than from the amount of the rates, fares, or charges therefor. In Re Mileage, Ex- cursion and Commutation Tickets, 23 I. C. C. 95. (e) A carload of lumber was con- signed to the complainant at Arkansas City, Kan., where it arrived Aug. 27, 1907. On Aug. 29, the freight auditor of the defendant telegraphed the con- signee at Omaha for instructions as to the disposition of the shipment. On ac- count of a strike of the telegraph opera- tors, complainant was unable to tele- graph instructions until Sept. 4, when it ordered the car diverted to Upland, Neb. The joint rate from Dearborn, the initial point of shipment, to Upland was 34c per 100 lbs. Under the tariff then in force, however, more than 48 hours having expired after the arrival of the car at Arkansas City before orders for further movement were received, the carriers charged the combination of in- termediate rates, amounting to 64i4c per 100 lbs. Reparation for the difference between the amount actually collected and the amount at the joint rate was demanded. HELD, carriers cannot law- fully depart from the terms of their tar- iffs to meet the emergencies that arise in the affairs of their patrons. A limita- tion of the reconsignment privilege under the through rate to the first 48 hours after the arrival of a car at destination is not unreasonable. Dietz Lumber Co. V. A. T. & S. F. Ry. Co., 22 I. C. C. 75, 76. (f) On carloads of bulk acid phos- phate shipped from Charleston, S. C., to Gainesville, Fla., a charge of $3.10 per ton, the commodity rate on fertilizers, was exacted. A commodity rate of $2.25 on fertilizer material was also main- tained. The classification schedules con- tained a list of articles entitled to be shipped as fertilizers, but contained no 804 TARIFFS, §3 (g)— (y) list of articles that might be shipped as fertilizer material. Prior to the ship- ment a rate of $2.25 per ton, applicable on fertilizer "when consigned to fertil- izer factories" had been charged. HELD, that the rate of $3.10 was the rate legally applicable to complainant's shipments, and that it was not unreasonable. Vir- ginia-Carolina Chemical Co. v. A. C. L. R. R. Co., 22 I. C. C. 394. (g) A tariff filed by the authorized agent of a carrier has the same legal status as though separately published and filed by the carrier. Johnson & Co. V. A. T. & S. F. Ry. Co., 21 I. C. C. 637, 639. (h) The terms of tickets and the pro- visions of the tariffs and of the law de- termine the obligations of the parties. National Ass'n of Letter Carriers v. A. T. & S. F. Ry. Co., 20 L C. C. 6, 9. (i) A published rate must be paid and collected regardless of the rate quoted. Scott V. T. & N. O. R. R. Co., 20 I. C. C. 167, 168. (j) A tariff must be applied regard- less of the use to which a commodity is put. Pacific Coast Biscuit Co. v. O. R. R. & N. Co., 20 L C. C. 178, 180. (k) The law requires the publication, observance, and maintenance of definite transportation charges. In Re R'estricted Rates, 20 1. C. C. 426, 429. (1) The lawfully established rate re- mains in force until specifically can- celed. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (m) A shipper is entitled to no rate except that shown in the carrier's sched- ule for the transportation of the com- modity as tendered for shipment. Ford Co. V. M. C. R. R. Co., 19 I. C. C. 507, 511. (n) A carrier is prohibited from ac- cepting either a greater or less or dif- ferent compensation than that stated in the tariff. Ford Co. v. M. C. R. R. Co., 19 L C. C. 507, 511. (o) The naming by the carrier either in the bill of lading or otherwise of a rate less than that published and filed with the Commission affords no proper basis for a departure from the legal rate or the payment of damages for a loss alleged to have been sustained as a re- sult of the error. Ala. Lumber & Export Co. V. P. B. & W. R. R. Co., 19 I. C. C. 295. (p) No power is vested in the Com mission to enjoin the collection of lawfu: tariff charges for services rendered Peale, Peacock & Kerr v. C. R. R. Co of N. J., 18 I. C. C. 25, 33. (q) There can be no waiver on the part of the common carrier of its right tc collect its tariff rates. Blinn Lumber Co V. S. P. Co., 18 I. C. C. 430, 432. (r) The published schedules mus1 govern, though the carrier's agent maj have made statements at variance there with. Snyder-Malone-Donahue v. C. B & Q. R. R. Co., 18 I. C. C. 498, 499. (s) Rates charged and collected musi be in accordance with the tariff legallj effective whether the same is issued ir compliance with any private agreemeni with the shipper or not. Hood & Sons V. D. & H. Co., 17 I. C. C. 15, 19. (t) There can be but one lawful rat€ between two i>oints and the law takes nc cognizance whatever of the distinctioE made by express companies between pre paid and collect shipments. Boise Com mercial Club v. Adams Express Co., 17 I. C. C. 115, 121. (u) The collection of the lawful rate is a duty imposed on the carrier by law, and it is given a lien on property trans ported to enforce the payment ol charges. Boise Commercial Club v. Adams Express Co., 17 I. C. C. 115, 121, (v) Only by faithful application of tariffs can discrimination and injustice be prevented. By the law there is placed upon the accounting officers of carriers special individual responsibility in this respect which they cannot ignore with- out incurring liabilities. Old Dominion Copper & Smelting Co. v. P. R. R. Co., 17 I. C. C. 309, 312. (w) The purpose of section 6 of the Act was to prevent discrimination by making it possible to obtain from tariffs just what the charges are. Voorhees v. A. C. L. R. R. Co., 16 I. C. C. 42, 44. (x) While the published rate is the legal rate, the mere publication cannot make a rate lawful that is unreasonable and excessive. Arkansas Fuel Co. v. C. M. & St. P. Ry. Co., 16 L C. C. 95, 97. (y) A rate once in effect continues to be the lawful rate until it has been con- celed. New Albany Box & Basket Co. v. I. C. R. R. Co., 16 I. C. C. 315, 316. TARIFFS, §3 (z)— (nn) 805 (z) A tariff is as much a part of the law as though it were read into the law itself. Interstate Remedy Co. v. Ameri- can Express Co., 16 I. C. C. 436, 437. (aa) The responsibility rests upon the carrier to have the lawful rates and rules in effect, and every shipper may with safety rely upon such rates with- out fear that they will be withdrawn as illegal after he has made shipment thereon, and he may rest in the confi- dence that they are lawful so long as they are in force. Interstate Remedy Co. V. American Express Co., 16 I. C. C. 436, 439. (bb) A tariff fixing a rate having been legally established, the duty of the carrier is to apply the rate so published and in effect. Ames Brooks Co. v. Rut- land R. R. Co., 16 I. C. C. 479, 481. (cc) The statute requires carriers to publish their tariffs and to adhere to those tariffs. In no other way can dis- criminations which have existed be pre- vented. In the enforcement of that statute the Commission has no discre- tion. Ames Brooks Co. v. Rutland R. R. Co., 16 I. C. C. 479, 481. (dd) As against the carrier, its pub- lished tariff rate is conclusive of the fact that any higher rate is unreason- able. Laning-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 39. (ee) Carriers are required by law to charge their published rate, and when they do so, unless the rate published is unreasonable and thereby unlawful, they entail no liability Palmer & Miller v. L. E. & W. R. R. Co., 15 I. C. C. 107. (ff) Under the governmental pre- scribed system of publishing rates, the carrier is not free to contract with re- spect to the rate, but is required by law to perform the service for the public un- der the tariff charges, which, though fur- nished by it, are legally enforceable, not by reason of any contract, but by virtue of the legal prescription. Woodward & Dickerson v. L. & N. R. R. Co.. 15 I. C. C. 170, 173. (gg) Carriers and shippers must take the specific rates and fares provided in tariffs, regardless of any long and short haul clauses, maxima rules, alternative rate or fare provisions, etc., contained in tariffs. Williamson v. O. S. L. R. R. Co., 15 I. C. C. 228, 229. (hh) Carriers are required by law to charge their published rate and when they do so, unless the rate published is unreasonable and thereby unlawful, they entail no liability. Palmer & Miller v. L. E. & W. R. R. Co., 15 I. C. C. 107, 108. (ii) A carrier's own published tariffs are the measure of its obligations to shippers; it cannot be controlled by the terms of the separate tariffs of its con- nections. Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 272. (jj) While a carrier in accepting a shipment ought to consider the conve- nience and interests of the shipper, nevertheless, as a matter of law, it is under an obligation only of satisfying the requirements of its own tariffs. Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 272. (kk) The mere fact that there has been a series of unlawful departures from a rule does not necessarily prove the rule unreasonable, nor does the granting of a rebate raise a presumption that the lawfully established rate is un- reasonable by the amount of the conces- sion. Indianapolis Freight Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. 370, 373. (11) The provisions of the Hepburn Act and the Elkins Act, forbidding a car- rier to evade the collection or payment of its fixed tariff rates, are not intended to extend the jurisdiction of the carrier over matters outside of its province as a common carrier, nor are they intended to limit and prescribe the use which shall be made of the rates which the carrier puts into effect. California Com- mercial Ass'n v. Wells Fargo & Co., 14 [. C. C, 422, 428. (mm) Rates duly established . as re- quired by the Act are absolutely binding upon carriers and shippers alike until lawfully changed as provided in the Act, but this does not render nugatory the provision of section 1 that all rates must be reasonable and just or the subsequent provisions authorizing the Commission upon proper showing to award damages resulting from violations of the Act. Coomes v. C. M. & St. P. Ry. Co., 13 I. C. C. 192, 194. (nn) By requiring the fixing and pub- lication of rates the Interstate Commerce Act supplies prima facie evidence of the contract rate, which can only be over- come by averment in avoidance thereof. 806 TARIFFS, §3 (00)— §3 (1) (g) B. & O. R. R. Co. V. LaDue, 57 Misc. 614, 615, 108 N. Y. Supp 659. (oo) Where the carrier's charge con- forms to the published schedule of rates, it is prima facie a reasonable one. B. & O. R. R. Co. V. LaDue, 57 Misc. 614, 615, 108 N. Y. Supp. 659. §3. Effect in General. §3. (1) Adherence to Published Rate. See Act to Regulate Commerce, II (hh); Allowances, §16 <'c) ; Crimes. §7 (f); Equalization of Rates, §4 (2) (o); Passenger Fares and Facilities, §4 (a); Through Routes and Joint Rates, §22. (a) Carriers cannot lawfully depart from the terms of their tariffs to meet emergencies that arise in the affairs of their patrons. Dietz Lumber Co. v. A. T. & S. F. Ry. Co., 22 I. C. C. 75, 76. (aa) A carload of fuller's earth was shipped from Jamieson, Fla., and con- signed by a mistake of the shipper to Hamburg, Germany, via Savannah, Ga. After the car moved, but before arrival at Savannah, the error was discovered and instructions given to forward the car to Buffalo, N. Y,, on the joint through rate from Jamieson to Buffalo. Defend- ants collected the sum of the interme- diate rates and complainant sought rep- aration on the basis of the through joint rate. The tariff carried no reconsign- ment privilege. HELD, the initial car- rier could not nullify the original trans- action and deviate from the published tariff on account of the erroneous bill- ing. Reparation denied. Floridin Co. v. Seaboard Air Line Ry., 21 I. C. C. 610. (b) A shipper who orders and uses a car of a certain size must pay the rate lawfully applicable thereto. Had ship- ment been delivered to the carrier for loading, the carrier would have been under duty of loading in such manner as would result in the lowest rate. Clinton Bridge & Iron Works v. C. B. & Q. R. R. Co., 20 I. C. C. 416, 417. (bb) The duty of shippers to pay pub- lished rates is precisely the same as the duty of the carriers to collect such rates. In Re Substitution of Tonnage at Transit Points, 18 I. C. C. 280, 29'6. (c) The fact that a charge is grossly unjust and unreasonable affords no ex- cuse either to the shipper, carrier, or the Commission for disregarding the ap- plication of lawfully published and estab- lished tariffs. The law plainly provide: for but one method of getting rid of th( unreasonableness or injustice of duly es tablished rates, and that is by their con denmation upon complaint and investiga tion. They cannot lawfully be ignorec without making the parties to such trans action incur the penalties of the law. Oh Dominion Copper Mining & Smelting Co V. Penn. R. R. Co., 17 I. C. C. 309, 312. (cc) Section 6 of the Act requires tha carriers subject to Act shall in all casei publish rates at which they afford trans portation services and that the rates specified shall in every case be observed In Re Contracts of Express Companies 16 L C. C. 246, 249. (d) Unquestionably the affirmative and mandatory obligations of the lav impose upon a carrier subject to its pro visions the utmost diligence to apprise itself that the rates are lawfully applied It must safeguard against so carelesslj shutting its eyes to what it was put upoi inquiry as to constitute criminal disre gard of the law's requirement anent ob servance of the tariff, rates and rules California Commercial Ass'n v. Welh Fargo & Co., 16 I. C. C. 458, 461. (e) The statute requires carriers tc publish thei"r tariffs and to adhere tc those tariffs. In no other way could discriminations which have existed be prevented. In the enforcement of that statute the Commission has no discre- tion. Ames Brooks Co. v. Rutland R. R, Co., 16 L C. C. 479, 481. (f) A tariff cannot be varied from, even though it may be for the interest in a particular case of both the shipper and the railway that it should be. Ne- braska-Iowa Grain Co. v. U. P. R. R. Co., 15 I. C. C. 90, 98. (ff) Rates not shown to have been unreasonable and, legal rate having been applied, complaint dismissed. Miller & Co. V. St. L. I. M. & S. Ry. Co., Unrep. Op. 588. (g) Plaintiff, a successful bidder for construction work on defendant carrier's line, specified in the construction con- tract for a lower rate than the published interstate rate for the lransportaMf»n of the materials, supplies and men to be used in carrying out the contract. HELD, the concession was not unlawful under the Interstate Commerce Act, and plaintiff was not prevented by reason thereof TARIFFS. §3 (1) (h)— (s) 807 from recovering for the loss of materials occasioned by defendant's negligence. S. F. P. & P. Ry. Co. V. Grant Bros. Const. Co. (Ariz. 1910), 108 P. 467, 470. (h) The general rule that where con- necting roads, each having a legally es- tablished local rate, but no joint rate which has been filed and published as re- quired by law, cannot by contract make a joint rate for less than the sum of the two locals, has no application where such roads have no established local rates. K. C. S. Ry. Co. V. Albers Comm. Co., 79 Kan. 59, 59, 99 P. 819. (i) When a common carrier makes its schedules or rates and files them witn the Interstate Commerce Commission, and that body approves and promulgates them as the Act requires, the parties, the carrier and the shipper, must observe them, and any known departure there- from will subject them to the penalty pre- scribed in the Act. I. C. R. R. Co. v. Hen- derson Elevator CO., 138 Ky. 220, 225, 127 S. W. 779. (j) Under section 6 of the Intersiate Commerce Act, prohibiting a carrier from deviating from its published tariff rate, when a carrier contracts for a less rate than its legal tariff rate, and sub :5e- quently charges its regular rate, the ship- per has no cause of action for a breach of contract. C. & O. Ry. Co. v. Maysville Brick Co., 132 Ky. G43, 654, 110 S. W. 1183. (k) The fact that the line of a deliver- ing carrier lies wholly within one state does not prevent it from suing to recover the lawfully published interstate rate on an interstate shipment, in which such carrier participates. La. Ry. & Nav. Co. V. Holly, 127 La. 615, 618, 53 So. 882. (1) A carrier cannot estop itself from the right to collect the published inter- state rate. La. Ry. & Nav. Co. v. Holly, 127 La. 615, 619, 53 So. 882. . (m) A shipper, who has obtained from a common carrier a special lower rate than the published schedule, has no ground upon which he can maintain a claim to the special rate in opposition to the scheduled rate. Foster, Glassel Co. V. K. C. S. Ry. Co., 121 La. 1053, 1055 46 So. 1014. (n) In a suit against a carrier for breach of contract in failing to observe the imer-tate rates from plaintiff's plant specified in an agreement and in refusing | a shipping-in-transit privilege provided for therein, it is a good plea that at the time of the making of the contract the carrier had already published and filed a tariff covering the hauls in question, as required by section 6 of the Interstate Commerce Act, and naming higher rights than those stipulated in the contract, and plaintiff cannot recover on the theory that the defendant might lawfully have amended its tariffs so as to enable it to keep its agreement. Gulf & S. I. R. Co. V. Laurel Cotton Mills, 91 Miss. 166, 194, 45 So. 982. (o) The carrier of an interstate ship- ment has the right to the rate published and filed with the Interstate Commerce Commission, and this despite a contract made either intentionally or mistakenly between the shipper and the carrier's agent for a lower rate. Sutton v. St. L. & S. F. R. R. Co. (Mo. App. 1911), 140 S. W. 76, 76. (p) It is beyond the power of either a railroad company or a shipper to make a valid contract for a less rate than the published schedules filed with the Inter- state Commerce Commission and not- withstanding a contract of this kind, the measure of liability of the shipper is the rate so published and filed. Pecos Val- ley & N. E. Ry. Co. V. Harris (N. M. 1908), 94 P. 951, 951. (q) Where the carrier has published and filed interstate rates with the Inter- State Commerce Commission, it must ob- serve and collect them according to the schedule, despite the fact that it makes a private contract with a shipper for lower rates. Houseman v. Fargo (N. Y. 1910), 124 N. Y. Supp. 1086, 1088. (r) Where a carrier has published and filed interstate rates with the Inter- state Commerce Commission and has posted a card at a station to the effect that the rates are in charge of the agent Dnd may be seen at any time by asking for them, the schedule rates are lawfully established and must be collected by the carrier. Houseman v. Fargo (N. Y. 1910), 124 N. Y. Supp. 1086, 1088. (s) A shipper cannot enforce a prior private agreement with a carrier calling for lower rates than those published and filed with the Interstate Commerce Com- mission. B. & O. R. R. Co. V. La Due, 128 App. Div. 594, 596, 112 N. Y. Supp. 964. 808 TARIFFS, §3 (1) (t)— §3 (2) (hh) (t) A delivering carrier has a right to collect from the consignee the lawful charges made hy the forwarding carrier and paid by the delivering carrier in the course of the shipment. A. T. & S. F. Ry. Co. V. Bell (Okla. 1912), 120 P. 987, 988. (u) A carrier of an interstate ship- ment must collect charges according to the class and rate filed in compliance with the Interstate Commerce Act, irre- spective of any agreement between it and the shipper as to the class or rate to be applied. Hardaway v. Southern Ry. Co. (S. C. 1912), 73 S. E. 1020, 1021. (v) When a rate has been filed and properly posted and published within the meaning of the provisions of the Inter- state Commerce Act, it must prevail with- out regard to any agreement fixing a dif- ferent rate. Fisher v. G. N. Ry. Co., 49 Wash. 205, 210, 95 P. 77. (w) Defendant carrier's line extended from Kansas City to Spokane. The Mis- souri Pacific R. R. extended from St. Louis to Kansas City. D€fendant con- tracted with plaintiff railroad to trans- port free of charge some newly built cars from St. Louis to Spokane. The Missouri Pacific R. R. did not join in this contract. The defendant and the Missouri Pacific R. R. did not publish any joint rate from St. Louis to Spokane. Defendant's rate from Kansas City to Spokane was $90 per car. Before the shipment moved defendant learnod that the rate contracted for was contrary to its tariff filed with the Interstate Com- merce Commission and so notified plain- tiff. HELD, defendant, despite the con- tract to the contrary, was obliged and entitled to collect the published charges. Coeur D'Alene & S. Ry. Co. v. U. P. R. R. Co. (Wash. 1908), 95 P. 71, 75. §3. (2) Erroneous Quotation by Carrier. See Passenger Fares and Facilities, §15. (a) No reparation may be awarded on the basis of a misquoted rate. Reno Whilesale Liquor Store v. S. P. Co., 23 I. C. C. 516, 517; Oster Bros. v. M. L. & T. R. R. Co., 21 I. C. C. 511, 512; Simon Cook Co. V. W. R. R. Co., 21 I. C. C. 563, 564; Newding v. M. K. & T. Ry. Co., 19 I. C. C. 29; Alabama, L. & E. Co. v. P. B. & W. R. R. Co., 19 I. C. C. 295; Forster Bros. Co. V. D. S. S. & A. Ry. Co., 14 I. C. C. 232. (aa) The law requires that tariffs shall be open to public inspection, and therefore shippers are themselves charged with notice of the rate law- fully applicable, and the Commission can- not consider an erroneous rate qi.otation made by an agent of a carrier as the basis for an award of reparation to a shipper who thereby suffers damage. Forster Bros. Co. V. D. S. S. & A. Ry. Co., 14 I. C. C. 232, 236; O'Brien v. N. P. Ry. Co., Unrep. Op. 227. (b) It is immaterial whether or not the agent of the carrier quotes a lower rate as being applicable since the law- fully established rate must be applied notwithstanding. McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349, 352; Scott v. T. & N. O. R. R. Co., 20 I. C. C. 167, 168; Dunne & Grace v. St. L. & S. W. Ry. Co. (Mo. App. 1912), 148 S. W. 997, 999. (c) The fact that an erroneous state- ment of rates by a carrier's agent results in a shipment moving over its lines at a rate higher than that in force via another route does not entitle the shipper to an award of reparation. Ohio Iron & Metal Co. v. Wabash R. R. Co., 18 I. C. C. 299, 300. (d) Neither misquotation, contract, or the decision of a court on the reasonable- ness thereof can alter the legal rate to be charged. Blinn Lumber Co. v. S. P. Co., 18 L C. C. 430, 433. (e) Where the wrong rate is quoted, every consideration of justice demands that the charge should be repaid, but such an order cannot be enforced. Ames Brooks Co. v. Rutland R. R. Co., 10 I. C. C. 479, 481. (f) Although an agent quoted an in- correct rate, yet, as the law stands, there is no remedy before the Commission. Whitcomb v. C. & N. W. Ry. Co., 15 I. C. C. 27, 28. (g) The lawfully published rates of a carrier must be applied despite the mis- taken representations as to lower rates made by the carrier's agents. AVhitcomb V. C. & N. W. Ry. Co., 15 I. C. C. 27, 28. (h) An error of the carrier's agent does not alter the tariff rate. Flatten Produce Co. v. C. M. & St. P. Ry. Co., 14 I. C. C. 512. (hh) A penalty applies against the carrier who misquotes a rate, although the Commission cannot afford redress to TARIFFS, §3 (2) (i)— (s) 809 the shipper. O'Brien & Co. v. N. P. Ry. Co., Unrep. Op. 227. (i) Although an agent of a carrier mistakenly quotes, either by parol or in the bill of lading, an interstate rate based on the minimum carload weight instead of on the marked capacity, which rate is lower than the published charge, and al- though the shipper is ignorant of the scheduled charge, the carrier must, under the Interstate Commerce Act as amended June 29, 1906, collect the published rate. St. L. I. M. & S. Ry. Co. v. Wolf (Ark. 1911), 139 S. W. 53G, 537. (j) Under the Act as amended June 29, 1906, the rates published and filed with the Commission must prevail, and although a carrier has quoted and col- lected a lower rate, it may sue to recover the difference between the quoted and the lawful rate. Ga. R. R. v. Creety, 5 Ga. App. 424, 426, 63 S. E. 528. (k) While good faith will doubtless save the agent of a carrier quoting less than the lawful rate, and the shipper, from the charge of criminal intent, the fact that a loss is suffered by the ship- per in relying on such lower rate cannot result in binding the company making it, nor can it result in protecting the shipper receiving its benefits. B. & O. S. W. Ry. Co. V. New Albany Box & Basket Co. (Ind., 1911), 94 N. E. 906, 909. (1) A carrier will not be estopped, by the act of its agent in quoting a rate less than the published rate, from repudi- ating an unlawful contract for the trans- portation of interstate commerce at such lower rate; and where a shipper relies upon an agreement of the carrier, made either purposely or inadvertently, no es- toppel will arise, for the reason that the agreement upon which the shipper relies is in itself illegal and void, and estoppel can never be founded upon an illegal act or contract. B. & O. S. W. Ry. Co. v. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 909. (m) Interstate rates of transporta- tion named by a carrier's agent are in- valid if inconsistent with tariff sched- ules filed with the Interstate Commerce Commission. McManus v. C. G. W. Ry. Co. (Iowa 1912), 136 N. W. 769, 774. (n) Where an agent of a carrier un- intentionally quotes plaintiff shipper an Interstate rate less than published rate, and the latter buys and ships in reliance thereon, plaintiff cannot recover dam- age in an action in the nature of tort for the misrepresentation, since under the Interstate Commerce Act the pub- lished rate must govern. (West, J., dissenting.) Schenberger v. U. P. R. R. Co., 84 Kan. 79, 81, 113 P. 433. (o) A carrier may recover its law- fully published interstate rate despite the fact that an officer or agent may have quoted to the shipper a lower rate. Louisiana Ry. & Nav. Co. v. Holly, 127 La. 615, 618, 53 So. 882. (p) The agent of an initial carrier quoted to defendant shipper a rate on an interstate shipment lower than the two published interstate rates of the Initial and connecting carriers, which constituted the lawful rate from point of origin to destination, no joint through rate being in effect. Plaintiff connect- ing carrier upon receiving the goods paid to the initial carrier the published interstate rate covering the initial car- rier's portion of the haul. HELD, the plaintiff, under section 6 of the Act as amended June 29, 1906, could recover of the shipper both the money advanced to the initial carrier and also the pub- lished charge covering Its portion of the haul, irrespective of whether it had or had not notice of the contract rate quoted to defendant. A. T. & S. F. Ry. Co. V. Bell (Okla. 1912), 120 P. 987. (q) A mistake of the agent of a car- rier, in quoting to a shipper a rate on an interstate shipment lower than the authorized published rate, does not au- thorize the shipper to receive from the delivering carrier the shipment upon payment of the contract rate, or where he has paid the tariff rate, exceeding the rate agreed upon, to recover the ex- cess paid over the contract rate. A. T. & S. F. Ry. Co. V. Bell (Okla. 1912), 120 P. 987, 989. (r) Where the rate quoted by the carrier's agent is less than the sched- ule rate approved by the Interstate Commerce Commission and published, the shipper is liable for the full rate, whether he actually knows that the rate quoted is less than the schedule rate or not. Baldwin Land Co. v. Columbia Ry. Co., 58 Or. 285, 289, 114 P. 469. (s) A shipper cannot recover of a carrier the difference between the Inter- state rate erroneously quoted to him by the carrier's agent and the lawfully 810 TARIFFS, §3 (2) (t)— §3 (3) (j) published rate exacted of him. T. & P. Ry. Co. V. Leslie (Tex 1910), 131 S. W. 824, 827. (t) Where a carrier has not pub- lished or filed an interstate rate with the Interstate Commerce Commission and quotes a rate to a shipper, who ships in reliance thereon, the carrier can recover only the quoted rate. Free- man V. Kemendo (Tex. Civ. App. 1912), 148 S. W. 605, 606. §3. (3) Notice to Shipper. (a) A shipper is presumed to know the published rates of a carrier however difficult they may be to understand. C. & A. R. R. Co. V. Kirby, 225 U. S. 155, 166, 32 Sup. Ct. 648, 56 L. ed. 1033. (b) Tariffs on file with the Commis- sion are notice to shippers of their provisions. Follmer & Co. v. B. B. & B. C. R. R. Co., 21 I. C. C. 617, 619. (c) Complainant shipped lumber, C. L., Woolam, Miss., to Owensburg, Ind., under a combination rate of 27c per 100 lbs. At the time of shipment a jomi rate of 24c applied between these points but via another gateway. Via the route shipment moved the carriers had not agreed on any division. HELD, as the joint tariff established a 24c rate via all junctions of the carriers parties thereto, the shipper could not be as- sumed to know via which gateway di- visions had been agreed upon and on that account could not be assessed a higher rate. Reparation awarded. Heft- ier Lumber Co. v. G. & S. I. R. R. Co., 21 L C. C. 14. (d) A car of shingles arrived at Su- perior Dock, Wis., on November 2, consigned via the Mutual Transit Co., a lake line. The tariff of the boat line provided that shipments arriving after Nov. 1 would be subject to forwarding all-rail at all-rail rates if in excess of available vessel capacity. The car was not accepted by the lake line and went forward all-rail. HELD, the tariffs of the boat line being on file with the Commission were notice to shipper of their provisions. When the water car- rier was designated in the routing of the car, complainant assumed all the consequences of the possible failure of the lake line to take the shipment. Complaint dismissed. Follmer & Co. v. B. B. & B. C. R. R. Co., 21 L C. C. 617, 619. (e) The fact that a shipper misun- derstands the application of the rate and the conditions attached thereto are errors of an unfortunate nature, but do not afford a basis for reparation. Running v. C. St. P. M. & O. Ry. Co., 19 I. C. C. 565. (f) Shippers are presumed to know the rates and to have access to tariffs, which are required to be kept in rail- road offices. Ohio Iron & Metal Co. v. Wabash R. R. Co., 18 L C. C. 299, 300. (g) While a shipper is put upon notice of a rate by the publication of the tariff, it is not held that the ship- per must determine for himself the lawfulness of rates, regulations or prac- tices, upon his peril. Interstate Rem- edy Co. V. American Express Co., 16 I. C. C. 436, 439. (h) The responsibility rests upon the carrier to have lawful rates and rules in effect and every shipper may, with safety, rely upon such rates without fear that they will be withdrawn as illegal after he has made shipment thereon, resting in confidence that they are lawful so long as they are in force. If subsequently found to be unlawful the carrier is subject to penalty for the institution and maintenance of such rates or rules, but the law does not contemplate that the shipment shall move under any other theory than that the provisions of the carrier's tariff are in full compliance with the law's demands. The carrier may not plead the unlawfulness of its tariff to avoid extending the benefit thereof to a ship- per. Interstate Remedy Co. v. American Express Co., 16 I. C. C. 436, 439. (i) It is contended by complainant that it had no knowledge of what the charges were to be. This cannot be assumed to be so for the reason that the charges were duly published in the tariffs of the defendant. Gough & Co. v. I. C. R. R. Co., 15 I. C. C. 280, 282. (j) By mistake the agent of plain- tiff carrier informed defendant shipper that a rate was lower than the pub- lished rate, and defendant sold goods and shipped the same in reliance there- on. The official tariff showing the law- ful rate between the points in question was on file at plaintiff's office and was accessible for public inspection. HELD, defendant was, as a matter of law, charged with notice and knowledge of TARIFFS, §4 (a)— (j) 811 the legal rate. B. & O. S. W. Ry. Co. V. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 909. §4. Necessity of Publication. See Alowances, §4; Demurrage, §11; Discrimination, §6 (c); Divisions, §2; Facilities and Privileges, §10 (w), §17; Lighterage, §4 (c) ; Refrig- eration, §5; Through Routes and Joint Rates, §2 (m). (a) Defendant carrier made a spe- cial contract with plaintiff for the transportation of horses by which it agreed to make the haul within a particular time, to make a particular connection, and to carry by a particular train. The shipment was to move at the regular rate. This expedited service was not provided for in its published tariffs and was not open to all. HELD, the contract was in violation of sec- tions 3 and 6 of the Act forbidding un- reasonable preferences in rates or regu- lations. Plaintiff could not recover damages for a breach thereof for delay of the shipment in transit. C. & A. R. R. Co. V. Kirby, 225 U. S. 155, 165, -6^ Sup. Ct. 648, 56 L. ed. 1033. (b) To prevent discrimination and promote equality of treatment in charges and services, the law requires not only a definite statement of the amount of the rates, fares and charges of carriers in their established schedules, but an equally definite statement therein of all privileges and facilities granted or al- lowed in connection therewith, and any rules or regulations which in any wise affect or determine any part or the aggregate of the rates, fares or charges, or the value of the service rendered to the passenger, shipper or consignee. It is clear that no schedule complies with the requirements of the law which does not definitely and fully state the charges on the one hand and the services to be rendered therefor on -the other. In Re Mileage, Excursion and Commuta- tion Tickets, 23 I. C. C. 95. (c) The rules affecting rates or the value of the service should be stated in the tariff. In Re INIileage, Excursion and Commutation Rates, 23 I. C. C. 95. (d) Terminal charges for services to be rendered in connection with ship-side delivery need not be stated separately in the tariff. Mobile Chamber of Com- merce V. M. & O. R. R. Co., 23 I. C. C. 417, 424. (e) Transit privileges and charges must be stated in the tariff. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 444. (f) A rate between two points in a state to be applicable to a shipment beyond out of the state must be filed with the Commission. Johnson v. M. St. P. & S. Ste. M. Ry. Co., 22 I. C. C. 255, 257. (g) The attempt to connect outbound interstate movements with inbound movements to a concentrating point under rates not on file with the Commis- sion is unlawful. St. Paul Board of Trade v. M. St. P. & S. Ste. M. Ry. Co., 19 I. C. C. 285, 289. (h) The duty rests upon the carrier to clearly and definitely state its rates and charges in its tariffs, and it is prohibited from accepting either more or less or different compensations for transportation than that so stated. The duty rests upon the shipper to clearly state and truly represent the character of his shipment, and he is entitled to no rate except that shown in the carrier's schedule for the transportation of the commodity as tendered for ship- ment. Ford Co. V. M. C. R. R. Co., 19 I. C. C. 507, 511. (i) Under section 6 of the Act re- quiring schedules to be published and filed with the Commission and providing that they "shall also state separately all terminal charges, storage charges, icing charges and all other charges which the Commission may require, and all privileges or facilities granted or allowed," it was not intended that the carrier should be required to state separately the hauling charge between the stations and the charge for the use of the terminal at both ends of the line. The terminal charges referred to in sec- tion 6, and which must be expressly set forth in the carrier's tariff, are those for other services at the terminal which the carrier may furnish, such as storage, elevation, switching and cart- age. Associated Jobbers of Los An- geles V. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 315. (j) State rates not on file with the Commission are not a lawful factor in a combination through interstate charge. Hagar Iron Co. v. P. R. R. Co., 18 I. C. C. 529. 812 TARIFFS, §4 (k)— §5 (b) (k) Where an elevator charge is included in a rate, the tariff invariably should so specify according to the sixth section. Ames Brooks Co. v. Rutland R. R. Co., 16 I. C. C. 479, 481. (1) All tariffs showing rates, fares and charges and all privileges or facil- ities which in anywise change or affect rates or the value of the service ren- dered, must be published and filed. The holding, storing, unloading and reloading of shingles is such a privilege and re- quires publication to be lawful. Folmer & Co. V. G. N. Ry. Co., 15 I. C. C. 33, 36. (m) Defendant charged on carloads of cattle from Anaconda, Mont., to Ta- coma, Wash., $20 in excess of the pub- lished rates, said excess being charged by agreement with complainant for hauling the cattle on other than the regular shipping days. HELD, these charges, not having been lawfully pub- lished, were illegal and must be re- funded. Carstens Packing Co. v. B. A. & P. Ry. Co., 15 I. C. C. 432, 433. (n) The rules and regulations of a carrier issued in circulars and filed in- dependently of its rate schedules, un- less referred to in such schedules, are not lawfully in force. Kansas City Hay Co. v. St. L. & S. F. R. R. Co., 14 I. C. C. 631, 632. (o) A tariff governing storage and in- surance charges which fails to fix their amount or to establish by reference to other tariffs or otherwise any specific basis for estimating them, is unlawful. England v. B. & O. R. R. Co., 13 I. C. C. 614, 619. (p) Reparation will not be awarded on the basis of a reconsignment privilege customarily extended by the carrier, but not duly published in its tariff. Sunder- land Bros. Co. V. B. & O. S. W. R. R. Co., Unrep. Op. 267. (q) Custom of notifying shippers when diversion will result in increased charges not adhered to and not provided for in tariffs, no ground for reparation. Hull Co. V. M. P. Ry. Co., Unrep. Op. 459. (r) Joint rate found unreasonable as compared with combination rate between same points, one factor of which not being applicable. Thorp Co. v. C. B. & Q. R. R. Co., Unrep. Op. 466. (s) State rate, not filed with Commis- sion, not applicable to interstate traffic. Thorp Co. V. C. B. & Q. R. R. Co., Unrep. Op. 466. (t) Shipment made to certain point and reconsigned to point within same state without taking possession of car, joint rate applicable, state rate not being on file with Commission. ]Mayer Fertilizer Co. V. W. R. R. Co., Unrep. Op. 472. (u) State rates not filed with the Commission cannot be used as factor in through rate. Young & Vann Supply Co. V. L. & N. R. R. Co., Unrep. Op. 480. (v) Shipment moved soon after the line had been opened for traffic and be- fore rates were established. HELD, charges assessed were unreasonable to the extent that they exceeded what would have been collectible under a rate subsequently established. Reparation awarded. Kennedy & Co., Ltd., v. V. Ry. Co., Unrep. Op. 530. (w) No provision in tariff applicable to switching of interstate shipment. In- trastate rate applied. HELD, inapplicable and unreasonable to the extent of a lower rate subsequently established. Deeves Lumber Co. v. C. & I. W. R. R., Unrep. Op. 540. (x) Tariff providing for storage not^ concurred in. Charges assessed there- under should be refunded without order of Commission. West Coast Shingle Co. V. C. St. P. M. & O. R. R. Co., Unrep. Op. 596. (y) The carrier has the right at the outset to establish its ra':es without previous application to the m'-erstaie Commerce Commission. O. Li. & N. Co. V. Coo.idge (Or. 1911), 116 P. 93, 95. §5. Purpose of Publication. (a) The objects of the Act are to prevent favoritism and to secure equal rights to all in interstate transportation, and to apply one legal rate publis 'eJ, posted and accessible to all alike. N. Y. C. & H. R. R. R. Co., V. U. S., 212 U. S. 481, 495, 29 Sup. Ct. 304, 53 L. ed. 613. (b) The publication of gross and net rates would needlessly add to the com- plexity of tariffs. Wherever it is possible for carriers to file a net rate as such, it is their duty to do so. In Re Allowances for Transfer of Sugar, 14 I. C. C. 619, 630. TARIFFS, §« (a)— (j) 813 III. POSTING. §6. In General. See Advanced Rates, §22 (c); Courts, §11 (I); Crimes, §10, §22; Repara- tion, §9. (a) The posting of rates as required by section 6 of the Act is not essential to make them legally operative, and is required only as a means of afforaing special facilities to the public for as- certaining the rates actually in force. K. C. S. Ry. V. Albers Comm. Co.. 223 U. S. 573, 594, 32 Sup. Ct. 316, 56 L. ed. 556. (b) Publication and posting within the meaning of the Act are essentially distinct. U. S. v. Miller, 223 U. S. 599, 604, 32 Sup. Ct. 323, 56 L. ed. 568. (c) The publication intended by the Act consists in promulgating and dis- tributing the tariff in printed form pre- paratory to putting it into effect, while the posting is a continuing act enjoined upon the carrier while the tariff remains operative as a means of affording spe- cial facilities to the public for as- certaining the rates in force thereunder. U. S. V. Miller, 223 U. S. 599, 604, 32 Sup. Ct. 323, 56 L. ed. 568. (d) Publication is a step in estab- lishing rates, while posting is a duty arising out of the fact that they have been established, and therefore post- ing is not a condition to making a tariff legally operative; neither is it a condition to the continued existence of a tariff once legally established. U. S. v. Miller, 223 U. S. 599, 604, 32 Sup. Ct. 323, 56 L. ed. 568. (e) Under section 8 of the Act mak- ing a carrier liable for damages result- ing to a shipper from the carrier's vio- lation of the Act, a shipper may, for the carrier's failure to post and keep open for inspection its established rates whereby the shipper is compelled to pay a higher rate than that in effect over a competing line, recover the dif- ference between the rate paid and the competitive rate, and this despite the fact that the shipper would thereby be charged less than the defendant's published charge. St, L. S. W. Ry. Co. v. Lewellen Bros., 192 Fed. 540, 542. (f) Complainant shipped snapped corn, Calvin, Okla., to DeQueen and Wilton, Ark., under a joint rate of 23c. Prior to date of shipment the rate had been 19c, but was advanced at time of shipment, but the tariff not posted at Calvin. Had this been done the in- creased rate would have been included in the price of the corn, which was sold f. o. b. destination. HELD, reparation should be awarded on account of the failure of the carrier to post the tar- iff changing the rate. Canadian Valley Grain Co. v. C. R. I. & P. Ry. Co., 19 I. C. C. 108. (g) In the absence of a joint rate from a local station on one line to a point on another line, it is not incum- bent on the initial line to post at the point of origin a tariff showing the com- bination of locals. Canadian Valley Grain Co. v. C. R. I. & P. Ry. Co., 18 I. C. C. 509, 510. (h) Complainant shipped a carload of snapped corn from Calvin, Okla., to Arkadelphia, Ark. The shipment moved via the C. R. I. & P. R. R. to Little Rock and thence via the St. L. I. M. & S. R. R. to destination. No through route and joint rate was in effect. The C. R. I. & P. R. R. agent at Calvin quoted a rate of 24i^c to destinafion. The lawfully published local rates from Calvin to Little Rock and from Little Rock to destination were collected, amounting to 29y2C. The rate of the C. R. I. & P. R. R. from Calvin to Little Rock was duly posted at Calvin. Com- plainant sought to recover damages under section 6 of the Act for the fail- ure of the C. R. I. & P. R. R. to post the local rates involved in the shipment in question. HELD, the defendant was not liable since nowhere in the Act is one carrier required to post at a local sta- tion on its line a tariff naming a local rate applicable over the line of another carrier. Rutland v. C. R. I. & P. Ry. Co., 18 L C. C. 509, 510. (i) Although the delay in a particular case in posting a tariff may be due to un- foreseen causes, the Commission is not to be understood as intimating that neglect to post tariffs or willful failure so to do can with impunity be resorted to by car- riers. Pueblo Transp. Ass'n v. S. P. Co., 14 I. C. C. 82, 85. (j) A tariff filed with the Commission in the manner prescribed by law and on statutory notice is a lawful tariff and lawfully binding upon both carriers and shippers, though it is not posted at sta- tions fully thirty days prior to its effect- 814 TARIFFS, §6 (k)— §7 ive date. Pueblo Transp. Ass'n vs. S. P. Co., 14 I. C. C. 82, 85. (k) Prior to Jan. 31, 1907, under its published tariff defendant's rates on sugar in carloads from Pacific Coast ter- minals to intermediate Colorado points were based on a specified carload mini- mum of 24,000 lbs. By a supplemental tariff, effective Jan. 31, 1907, this mini- mum was increased to 30,000 pounds. This supplemental tariff was regularly and lawfully filed with the Commission, Copies of the same for California points were delayed and defendant's agents were able to post them at San Francisco and other points only twenty-five or twenty-six days before the supplemental rate became effective. Subsequent to Jan. 31, 1907, a shipper, after a copy of the supplement had been mailed to him, shipped sugar from San Francisco to an intermediate Colorado point. HELD, citing T. P. Ry. Co. v. Cisco Oil Mill, 204 U. S. 449, that defendant could not allow the shipper the original rate based on the 24,000 minimum, the supplemental tariff being effective, although not posted the full 30 days prescribed by statute. Pueblo Transportation Ass'n v. S. P. Co., 14 I. C. C. 82. 83. (I) Under section 6 of the Act, relat- ing to the filing and posting of rates, the tariff of rates is established and in force when the same has been published and filed with the Interstate Commerce Com- mission, and has been approved and pro- mulgated by the Commission, and the posting of the schedules in the oflEice or station of the carrier is not a condition precedent to the taking effect of such rates. Baltimore & O. S. W. Ry. Co. v. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 908. (m) A carrier filed an interstate rate with the Interstate Commerce Commis- sion but failed to post the same in the depot at the point of origin in question as required by section 6 of the Interstate Commerce Act, as amended June 29, 1906. Plaintiff shipper and the carrier's agent searched the tariff files of the depot for a possible increase in rates and the agent made further inquiries of the ofllcers of the carriers. Plaintiff pur- chased grain in reliance on a 10c rate posted at the depot. A 13i/^c rate had, in fact, been previously filed with the Commission and gone into effect, and plaintiff was compelled to pay same. HELD, plaintiff could recover in an ac- tion in a state court for damages for the failure of the carrier to post its rates at the depot, and his right so to recover was not defeated by the contention that to permit recovery would render nuga- tory the provisions of the Interstate Commerce Act requiring carriers to charge the scheduled rates. I. C. R. R. Co. V. Henderson Elevator Co., 138 Ky. 220, 227, 127 S. W. 779. (n) A carrier failed to post an inter- state rate in the depot at the point of origin, as required by section 6 of the Interstate Commerce Act as amended June 29, 1906. A shipper purchased grain and relied on the lower rate pre- viously in effect and on file at the depot. He was compelled to pay the higher rate, unposted, but filed with the Interstate Commerce Commission. HELD, a state court had jurisdiction to entertain an action for damages for a failure to post the rate, under section 22 of the Inter- state Commerce Act, providing that "nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies," I. C. R. R. Co. V. Henderson Elevator Co., 138 Ky 220, 229, 127 S. W. 779. (o) The mere fact that an interstate carrier fails to post the schedules and tariff sheets at the depot does not nec- essarily render nugatory the rate promul- gated and filed with the Interstate Com- merce Commission and deposited with the station agent. The provision of the Interstate Commerce Act to the effect that the schedules and tariff sheets shall be published and posted in two conspic- uous places in every depot, is not a con- dition precedent to the establishment of the tariff rates; they are valid, even though not posted. Mires v. St. L. & S. F. R. R. Co., 134 Mo. App. 379, 390, 114 S. W. 1052, 1056. (p) Reparation awarded for damages sustained by reason of failure of carriers to post tariff advancing a rate. Wolf Milling Co, v, A. T. & S. F. Ry. Co., Unrep. Op. 439. IV. CONSTRUCTION. See Construction. §7. In General. See Cars and Car Supply, §34 (a); Commodity Rates, II, §4 (a); Compress Companies and Charges, §2 (c), (d); Evidence, §64 (g); Fa- TARIFFS, §7 (a)— (h) 815 cilities and Privileges, §19 (d); Import Traffic, I (a), (b); Through Routes and Joint Rates, §18, §21; Track Storage, II (j). (a) The word "tariffs" as used in section 6 of the Act as amended in 1906, forbidding carriers from refunding or re- mitting any portion of the published rates or from extending to any shipper any privileges or facilities except such as are specified in the tariffs, is used in the sense of schedules, rates, and charges. U. S. v. H. V. Ry. Co., 194 Fed. 234, 237. (b) Showcases come within the com- modity designation in a tariff, "furniture (new), all kinds." C. B. & Q. R. R. Co. V. Feintuch, 191 Fed. 482, 488. (c) Complainant shipped three car- loads of boilers with attachments, includ- ing plates, front pieces, bars, doors and frames, smoke stacks in sections, guys and hooks, tied and loose pieces, and rods and other parts in boxes. The tariff pro- vided for a rate of $1.50 on machinery and machines, boilers and steam boilers under 30 feet in length. This rate was intended to apply to high pressure boilers of the kind shipped by complainant. The tariff carried a rate of $1.40 per 100 lbs. on stoves: — boilers, including range boilers with gas heating attachment. It ap- peared that the $1.40 rate was intended to apply to low pressure boilers. It was contended that if this was the case then the higher rate was discriminatory be- cause based on the use to which a com- modity was to be put. The evidence showed that the high and low pressure boilers were not interchangeable in use; for while the high pressure boiler might be, and sometimes was, installed as a part of a heating plant in large buildings, such use seemed to be an added one to which the latter was adaptable. The low pressure type could not be used in place of the high pressure type. HELD, the boilers shipped by complainant could not be deemed entitled to the rating for steam or hot water boilers limited under "stoves;" the principle which prohibits applying a rate according to the use to which a commodity is to be devoted was not shown to have been contravened, nor had the rate charge been shown to be unreasonable, as complainant failed to establish that the articles were the same or even approximately identical. Complaint dismissed. Smith-B'ooth-Usher Co. v. L. S. & M. S. Ry. Cp., 33 I. C. C. 242. (d) For transporting a carload of heavy rough grate bars (as they came from the sand without hand or machine finish) for power boilers from Chatta- nooga, Tenn., to Oakland, Cal., defend- ants collected charges based upon a rate of $1.41 per 100 lbs. applicable to "fur- nace castings." The tariff carried a rate of 80c applicable to "castings, n. o. s. plain as from the sand." HELD, the lower rate was properly applicable. Reparation awarded. Casey-Hedges Co. V. A. G. S. R. R. Co., 23 I. C. C. 249. (e) Fuel oil switched at St. Louis was assessed 2c per 100 lbs. on an arbitrary weight of 7.4 lbs. per gallon. The esti- mated weight of the shipments which moved to Wood River, 111., as assessed by the carriers having the line-haul was 7,807,837 lbs. Under the estimated weight on which the switching charges were as- sessed, the shipments would have weighed 8.914,106 lbs. There was no switching tariff providing for estimated weight, but one issued subsequent to the time the shipments moved based the switching charges on the estimated weights pro- vided in the classification or tariffs gov- erning the road haul. HELD, the switch- ing charges assessed were unreasonable to the extent the weight on which they were assessed exceeded the weight on which charges for the line-haul were made. Reparation awarded. Standard Oil Co. V. 1. T. R. R. Co., 23 L C. C. 369. (f) Tariffs are to be construed accord- ing to their language and not by the arbi- trary practice or intention of the carrier. Standard Oil Co. v. I. T. R. R. Co., 23 L C. C. 369, 370. (g) The commodity shipped from New York City to Pearsall, Tex., was granulated cork and the first-class rate of $1.72 per 100 lbs. should have been ap- plied instead of the rate of $3.44 per 100 •bs. applicable to cork shavings. Repara- tion awarded. Wolf Co. v. Mallory Steam- ship Co., 23 I. C. C. 490. (h) In July, 1908, complainant shipped from Detroit, Mich., to Seattle. W^ash.. over defendant's line, two carloads of showcases on which charges were col- lected at the rate of $4.50 per 100 lbs., being one and one-half times the first- class rate. Under the Western Classifi- '^ation, if the showcases were "boxed." *^he first-class rate of $3 would apply; if not "boxed," the rate charged was proper. "Boxed" under the rule meant completely 816 TARIFFS, §7 (i)— (n) enclosed. The evidence disclosed that the showcases were enclosed completely on top and at both ends, but that open spaces 2 or 3 inches in width extended the whole length of both sides, and pro- vided handholds for use in loading and unloading the showcases. HELD, the higher rate was applicable, for the show- cases were not completely enclosed and therefore, under the rule, were not boxed. Wadell Showcase & Cabinet Co. v. M. C. R. R. Co., 22 I. C. C. 106, 107. (1) In 1908, complainant shipped from Marion, Ind., to Oakland, Cal., a carload of iron beds and wire mattresses, weigh- ing 36,200 lbs. upon which charges based upon the mixed-carload rate of $1.25 per 100 lbs. were assessed. Complainant al- leged that the charges were unreasonable to the extent that they exceeded charges based upon a rate of $1.10 per 100 lbs. on the iron beds and $1.60 on the wire mattresses. Complainant prayed for the alternative use of such rates. HELD, in the absence of evidence that the rate upon the mixed shipment was unreason- able, the defendants would not be re- quired to establish the alternative rule. Complaint dismissed. Marion Iron & Brass Bed Co. v. T. St. L. & W. R. R. Co., 22 1. C. C. 272, 273. (j) Five carloads of parts of an old bridge that were shipped from New Or- leans, La., to Richmond, Va., were charged a rate of 41c per 100 lbs., which was the rate applicable to bridge mate- rial. Complainant contended that the rate on scrap iron of $4.50 per ton should have been applied. The evidence was clear that the material was to be used for scrap iron. Defendant called attention to the rule that under the Southern Clas- sification the ratings on scrap iron "will not apply on old or second-hand ma- chinery, engines, boilers or similar ar- ticles unless same are broken into scraps or pieces at the point of shipment before being tendered to the carrier," and showed that this material had not been broken into pieces. HELD, that parts of bridges were not "similar" articles with- in the meaning of the rule, and that it was physically impossible to break bridges into scraps at the point where they were dismantled. Complainant was entitled to the scrap iron rates. Conti- nental Iron & Steel Co. v. L. & N. R. R. Co., 22 I. C. C. 281. (k) Where an article is shipped both in carload and less than carload lots the carrier must provide a less than carload rate and cannot confine the movement to carloads. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 320. (1) On carloads of farm wagons from Toledo, O., to Gordo, Ala., a rate of 51c per 100 lbs. was charged. Complainant alleged that the lawful published rate was 42c. By the Southern Classification "wagons and carts, farm or lumber," were rated sixth class. There were cer- tain exceptions to the classification, among them the following: "Wagons, farm: See agricultural implements." Un- der this reference appeared the provi- sions: "Agricultural implements, n. o. s., class K. Agricultural implements, etc., and farm wagons without springs, in mixed c. 1., etc., sixth class." From Cairo to Gordo the sixth-class rate was 41c, and the class K rate 32c. No evi- dence of unreasonableness of rates was offered. HELD, the wagons were prop- erly rated as sixth class. The word "see" following the name of an article is used only to direct attention to another item in some way related thereto. The refer- ence to "agricultural implements" under "farm wagons" showed that farm wagons might be shipped in mixed carloads with certain other articles at the sixth-class rate. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 460. (m) Complainant contracted to fur- nish ties from points in Alabama, Missis- sippi, Louisiana and Texas to the U. P. R. R. Co., f. o. b. Kansas City, Mo. The billed destination, Linwood, Kan., was a local U. P. R. R. station, 28 miles west of Kansas City. The joint rate to Linwood was 24c. The U. P. R. R. refused to ac- cept cars at Kansas City on through bill- ing to Linwood and at their demand Lin- wood expense bills were corrected to read Kansas City, and the published rate of 23c was applied. Complainant sought reparation on the basis of the unpub- lished division of the joint rate applying through Kansas City to Linwood, alleg- ing that in the division 19c accrued to the carriers to Kansas City, and 5c to the U. P. R. R. for the haul to Linwood. All of the cars were afterward reconsigned by the U. P. R. R. to various other points. HELD, the published tariff rate from points of origin to Kansas City was prop- erly imposed. Switzer Lumber Co. v. A. & M. R. R. Co., 22 L C C. 471, 473. (n) Corrugated strawboard boxes are held not to come within the meaning of a TARIFFS, §7 (o)— (ss) 817 tariff providing for goods in boxes, bar- rels or crates, in view of the expressed definition of these terms. Republic Metalware Co. v. Erie R. R. Co., 22 I. C. C. 565, 566. (o) On go-carts shipped from Elk- hart, Ind., to Los Angel-es, Cal., in car- loads a rate of $2.62 1/^ upon a minimum of 20,000 lbs. was charged. They were boxed. The tariff named a rate of $1.75 per 100 lbs. on "go-carts, wood or metal, boxed or crated." It carried a rule making the rate 25 p-er cent higher on commodities shipped in crates, and 50 per cent higher when shipped in bales, bags, or bundles. "Boxed" was defined to mean packages made entirely of lumber. "Crated" was defined to mean inclosed on all sides with framework. A charge of 50 per cent was added to the commodity rate. HELD, on the basis of the decision in Republic Metalware Co. V. E. R. R. Co., 22 I. C. C. 565, that the tariff furnished no authority for the additional charge, and that the im- position of the additional charge was un- reasonable. Reparation granted. Sid- way Mercantile Co. v. L. S. & M. S. Ry. Co., 22 I. C. C. 570. (p) Defendants' tariffs provided for standard and pony crates of certain dimensions for the shipment of canta- loupes from Colorado upon estimated weights of 66 and 53 lbs., respectively. Complainant shipped in so-called one- third sized crates, for which there was no tariff provision for estimating weight, but whose dimensions and cubical capac- ity was greater than the dimensions and cubical capacity of a standard crate. In the absence of tariff provision the agent of the initial carrier tested the weight by weighing at intervals a stated number of crates, it being impractical to weigh all. The crates were billed at 30 lbs. and 25 lbs., respectively. Com- plainant acquiesced in this. HELD, that the weight of the shipments on the basis on which defendants collected their charges was not shown to have been excessive or discriminatory. Taking into consideration the dimensions of the small crates and the additional tare for these packages, the estimated weight for the smaller package based on one-third of the weight of the standard package was not sufficient to overcome defend- ants' evidence respecting the actual weight of the shipments. Byrnes v. A. T. & S. F. Ry. Co., 22 I. C. C. 585, 587. (q) The petition alleged that un- reasonable rates were charged by the defendant for the transportation of cer- tain carload shipments of counters and shelving from Fort Scott, Kan., to Mem- phis, Tenn., and Lawton, Okla. The west- ern classification provided a third-class rating of 45c per 100 lbs. on "lumber and manufactures of" from Fort Scott to Memphis. On furniture, enumerating va« rious classes, there was a rate of 32i^c, minimum weight 20,000 lbs. Shelving was not enumerated under the head of furniture. HELD, that counters and shelving, being essentially store furni- ture and as desirable traffic as the other articles mentioned in the classification under the item "furniture," should not take a higher rate. Ireland & Rollings v. St. L. & S. F. R. R. Co., 22 I. C. C. 590, 591. (r) Counters and shelving are essen- tially store furniture and are as desirable traffic as other articles in the classifica- tion under the item "furniture;" the transportation risk and service are prac- tically the same, and they should not take higher rates than those applicable to other articles of store furniture spe- cifically mentioned. Ireland & Rollings V. St. L. & S. F. R. R. Co., 22 I. C. C. 590, 591. (s) Leland's tariff established a com- modity rate of 60c on all articles on which ratings were carried under the heading of "furniture" in the Western Classification; and also a commodity rate of 73c on a large list of articles, most of which were included in the 60c rate. HELD, that shelving should be included under furniture and, if so, would be en- titled to the 60c rate under Conference Ruling 239, providing that where a tariff contains conflicting rates the lower shall be applied. Reparation awarded. Ire- land & Rollings V. St. L. & S. F. R. R. Co., 22 I. C. C. 590, 592. (ss) Complainant shipped new beer kegs, C. L., Milwaukee, Wis., to Sacra- mento, Cal., under a specific commodity rate of $1.35 per 100 lbs. At the same time there was a class rate applicable of $1.00 per 100 lbs. HELD, that where a commodity rate is named in a tariff for movement of an article between specified points, such commodity rate is the lawful rate, and the only one that may used with relation to that traffic between those points, even though a class rate or some combination may make lower. How- 818 TARIFFS, §7 (t)— (y) ever, upon authority of R. R. Comm. v. S. P. Co., 19 I. C. C. 238, rate held un- reasonable to the extent it exceeded $1.00 per 100 lbs. Reparation awarded. Goerres Cooperage Co. v. C. M. & St. P. Ry. Co., 21 I. C. C. 5. (t) Complainant attacked the fifth- class rate of $1.65 per 100 lbs. on a car- load of incinerator parts, Hopkins, Minn., to Sacramento, Cal. The shipment con- sisted of a Decarie garbage incinerator knocked down, which, with its parts and accessories, were loaded upon two cars. Upon one car were the main refuse burner and certain of ihe more bulky parts; upon the other were a considerable number cf parts and accessories, such as plate iron, angle bars, rivets, cast- ings with wheels attached, a steam gauge and caps, etc. A rule in the tariff stateB that "when parts or pieces constituting one or more complete articles are offered to carriers for transportation at one time by one shipper, to one consignee and destination, the rating provided for the complete article, whether set up or knocked down, as specified in the tariff, will be applied." A commodity rate of 95c per 100 lbs. applied to "refuse burner material, viz.: castings for grate bars; stands, draft doors and frames, and spelt bottom (opening for refuse) ; plate iron, rolled and punched; angle bars, rivets, bolts, sprocket wheels, chains; and not to exceed 4,000 lbs. wire cloth to each burner." HELD, that the fifth-class rate was properly assessed and that upon the record no opinion was expressed whether the maintenance of the commodity rate upon certain kinds of refuse burner ma- terial discriminated against complain- ant. Complaint dismissed. Decarie In- cinerator Co. V. M. & St. L. R. R. Co., 21 I. C. C. 71. (u) Tariffs are to be interpreted ac cording to the reasonable constructio' of the language; the intention of the framers and the practice of the carriers do not control. Bon Marche v. C. R. h Co. of N. J., 21 I. C. C. 195, 196. (v) Complainant shipped enameled ware and granite iron ware L. C. L., New- ark, N. J., to Seattle, Wash. Charges of $1.80 per 100 lbs. were collected. The tariff provided a commodity rate of $1.20 on "stamped ware agate or enameled, n. o. s.; also granite iron, n. o. s.; in boxes, barrels or crates." Complainant argued that the phrase "in boxes, barrels oi crates" in the commodity item modified only the term "granite iron ware, n. o. s." and did not relate to the words "agate or enameled, n. o. s." The rate of $1.80 was exacted under a tariff which read: "When commodity rates provide for articles boxed and do not provide for the same in crates, racks, bails, bags, or bundles, they will take, when shipped in bags, bails, or bundles, a 50 per cent higher rate than in boxe§ (when the same rate is provided for articles in crates as in boxes; when shipped in bags^ bails, or bundles, they will take 50 per cent higher rates)." HELD, that in view of the way in which the commodity item was punctuated, the phrase "in boxes, barrels or crates" referred to and mod- ified both of the items which preceded that phrase; and that under the language of the tariff the commodity rate applied to a shipment packed in pulpboard boxes. Reparation av^arded. Bon Marche v. C. R. R. Co. of N. J., 21 I. C. C. 195. iw) Where, on a newly constructed line, the published class rates contain the provision that for rates to and from stations not named therein rates to and from stations next beyond shall be ap- plied, and where between two given points from which commodity rates have been published there is a point from which no rates are named, such provision in the class tariff cannot be extended to the commodity tariff. Wheeler-Holden Co. V. L. & N. R. R. Co., 21 I. C. C. 237. (x) Complainant, a ranchman, shipped a mixed carload containing 36 spools of barbed wire from Portland, Ore., to Chester, Mont. The fourth-class rate of $1.25 was assessed on the spool, but the rate of 85 cents on emigrants' movables was assessed on the balance of the ship- ment. HELD, that complainant was en- titled to include in his shipment of emi- grants' movables a reasonable quantity of barbed wire, and the 36 spools in question were not in excess of such a quantity. Reparation awarded. Hood v. G. N. Ry. Co., 21 I. C. C. 246. (y) Even assuming that a consign- ment of metal automobile parts could reasonably be described for transporta- tion purposes as machinery, the fact that it is specifically described in another part of the classification renders im- proper the application of a rate limited to machinery not otherwise specified. Auto Vehicle Co. v. C. M. & St. P. Ry. Jo., 21 L C. C. 286, 287. TARIFFS, §7 (z)— (ee) 819 (z) A tariff carrying a rate on lum- ber, Tiger, Ga., to Hoboken, N. J., for de- livery within the New York lighterage limits does not apply to a point on the "Hoboken Shore road," so distant from the nearest lighterage point that it would invclve drayage if the delivery should be made by lighter. C. & W. Lumber Co. V. T. F. Ry. Co., 21 I. C. C. 462. (aa) Reparation- was asked on a ship- ment of 10,000 lbs. of new furniture and G,600 lbs. of framed wall looking-glasses in boxes shipped from Rockford, 111., to San F'rancisco, Cal. Charges were col- lected on the furniture on the minimum weight of 12,000 lbs. and on the actual weight of the looking-glasses. The tariff contained the carload rating for both new furniture and looking-glasses. The tariff provided that articles having a car- load rate should be shipped in mixed carloads at the carload rate unless so provided. The looking-glasses were not a part of or to be used in connection with any of the other articles of furni- ture in the car. HELD, whether or not the looking-glasses were furniture, they were separate and distinct articles for which a specific rate was provided and the rates were correctly applied. O'Brien Commercial Co. v. C. & N. W. R. R. Co., 20 L C. C. 68. (bb) Defendants made effective a special commodity rate reducing the fifth-class rate on sulphuric acid in or- der, evidently, to secure a large ship- ment. After one month the class rate was restored. HELD, the circumstance of the application of a short term com- modity rate, both before and after which the higher class rates are assessed, is strongly suggestive of the old evil of "midnight tariffs." Dupont De Nemours Powder Co. v. D. & N. R. R. Co., 20 I. C. C. 83, 85. (cc) Complainant shipped 11 carloads of anthracite coal, Chicago, 111., to Stur- gis. S. D., for use of the United States government at Fort Meade, S. D., pur- chased by the United States at a price which included delivery of the coal at Sturgis. Defendant operates between Chicago and Sturgis 248 miles of land- grant aided railroad over which the gov- ernment is required to pay only 50 per cent of the commercial rate. The ship- ments, however, were assessed the pub- lished rate of $6.80 per ton. The carrier, through error, quoted to complainant a rate of $5.9915 per ton, the land-grant rate. This rate was established subse- quent to the shipment of coal consigned to the government at Sturgis. The rea- sonableness of the $6.80 rate was not questioned, the propriety of the applica- tion of the land-grant rate to the ship- ment being involved. HELD, that it was improper to permit the benefit of special rates on government material to accrue to anyone other than the government itself. Reparation denied. Havens & Co. V. C. & N. W. Ry. Co., 20 I. C. C. 156, 158. (dd) Complainant shipped a carload of plows, Evansville, Ind., to Huntsville, Ala. Freight charges based on the sixth- class rate of 30c per 100 lbs. were as- sessed. The shipment contained 1,600 lbs. of plow handles and 33,400 lbs. of steel beam plows set up, except that the handles and braces were removed. The tariff provided rates on agricultural im- plements sixth class, C. L., 30c, plow handles, L. C. L., fourth class, 47c; "spe- cial iron," a special rate of 23c, C. L., minimum 24,000 lbs., plow bases being defined as special iron. The tariff also provided that when parts constituting complete articles were shipped they would be rated as provided for the com- plete article, except when rated sep- arately in the classification. Subsequent to the shipment the classification was amended to provide that plow bases with beams attached, L. C. L., would take fourth-class rates, while plow bases would take the special iron rate. No evidence was offered concerning the un- reasonableness per se of the charges assessed. HELD, had the beams been detached, the L. C. L. rate could have been assessed on the handles and beams and the special iron rate, C. L., on the bases, but inasmuch as there was no separate rating for bases with beams at- tached, the agricultural implement rate was properly applicable, and the rate assessed was not unreasonable. Repara- tion denied. Thompson v. L. & N. R. R. Co., 20 L C. C. 161, 162. (ee) Complainant had shipped to it two carloads of news printing paper, Los Angeles, Cal., to Grand Rapids, Wis., under a rate of 75c per 100 lbs. The first car weighed about 51,000 lbs., the second car about 2C,000 lbs., shipped dif- ferent days under separate bills of lading. The minimum weight for each car was 30.000 lbs. Rule 8 of Transcontinental Freight Bureau tariff, I. C. C. 889, in force 820 TARIFFS, §7 (ff)— (kk) when shipments were made, provided that when the minimum carload weight or more was shipped in one day by one consignor to one consignee covered by one bill of lading, the established rate for a carload should apply on the entire lot, although it might be less than two or more full carload lots. The consignor was notified of this rule, but loaded the cars in the manner he did instead of loading two cars to the full minimum or shipping them on the same day under one bill of lading. HELD, complainant was not entitled to reparation on the second car for the difference between the actual weight and the minimum weight. Consolidated Water Power Co. v. S. P., L. A. & S. L. R. R. Co., 20 I. C. C. 169. (ff) Complainants shipped a carload of paper waxed with paraffin and used as an inside lining for cartons containing crackers, and as an outside wrapper for , protection against moisture, Bennington, Vt., to Portland, Ore. The tariff carried a rate of $1.20 per 100 lbs. on wax or gummed paper and 75c on wrapping pa- per, carriers' liability limited to 5c per lb. The shipment was released to a valuation of 5c per 100 lbs. and billed as wrapping paper by the initial line. HELD, the rate of $1.20 was correctly applied. Complaint dismissed. Pacific Coast Biscuit Co. v. O. R. & N. Co., 20 I. C. C. 178. (gg) Complainant shipped news print paper, not printed, Combined Locks, Wis., to Dallas, Tex., under a rate of 85c on printing paper, "invoice value exceeding 3^c per lb. or invoice value not re- ceipted for." The tariff carried a rate of 69c on printing paper, "invoice value not exceeding S^/^c per lb. and so re- ceipted for." The shipment was not re- ceipted for at a particular value, but it was worth less than S^/^c per lb. Its value was unknown to the carrier. HELD, value is one of the factors upon which rates are based, and where a tar- iff provides different rates for property dependent upon the value thereof, and requires that the invoice value shall be stated and receipted for in order to se- cure the lower rate, the complainant must show compliance with the require- ment of the tariff or that such require- ment is unreasonable before reparation will be awarded on account of the ex- action of higher rates on a shipment whose value does not exceed that upon which a lower rate would have applied had the value been disclosed to the car- rier. In the absence of any claim or evidence that the condition in the tariff is unjust, the mere fact that the value of the paper was less than 3i/^c per lb. is no ground for awarding reparation. Dells Paper & Pulp Co. v. C. & N. W. Ry. Co., 20 L C. C. 419. (hh) Complainant shipped materials for use in the manufacture of gas mantles, Chicopee Falls and Springfield, Mass.,- to Portland, Ore. The rate ex- acted was $3 per 100 lbs. under a tariff applying on "dry goods, N. O. S., in bales or in cases." The commodity shipped was cotton knit fabrics or knit- ting f:-:tory products, made by circular knitting machines, and shipped in mixed lots, packed in boxes or cases, partly in rolls or bolts of 50 to 100 yds. in length, and partly in parc€ls cut to lengths of eight inches. HELD, that the rate was properly applied and that the goods could not be rated as "netting, cotton, N. O. S." Western Mantle Co. v. S. P. & S. Ry. Co., 20 I. C. C. 643. (ii)' The rate on "dry goods, N. O. S.," is properly indexed when the term "dry goods" is indexed and immediately under that item in the tariff appears the item "dry goods, N. O. S." Western Mantle Co. V. S. P. & S. Ry. Co., 20 I. C. C. 643, 645. (jj) Complainant was the owner of a theatrical and minstrel troupe of from 25 to 40 negroes, who gave their per- formances under a tent. To accommo- date the movement of the members of the troupe with their paraphernalia com- plainant provided two cars, one a Pull- man sleeper, the other a baggage car. The A. C. L. R. R. imposed the rate of $25 applicable to "combination cars" as a minimum charge upon the baggage car, because it contained a stove on which cooking for the troupe was some- times done. HELD, that this car was generally treated by railroads of the South as a baggage car; that its prime purpose was to carry the baggage of the troupe, and in the absence of a specific limitation as to its use for re- freshment purposes, it should be trans- ported at the baggage car rate of a $10 minimum charge. Jhappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 58. (kk) A declaration by the shipper in the invoice as to what the shipments are is not conclusive of that question. The tariff application is to be construed TARIFFS, §7 (11)— (tt) 821 with reference to what articles actually comprised the shipment. Ohio Foundry Co. V. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (11) Complainant shipped mixed car- loads of gas and coal, fireplaces and grates, Steubenville, O., to San Fran- cisco, Cal. On seven shipments which moved prior to Jan. 1, 1909, charges were collected under a rate of $1.45 per 100 lbs., while a rate of $1.50 was ex- acted on the remaining four shipments which moved subsequent to that date. The shipments were invoiced as gas grates, but by stipulation the real facts were admitted. The tariff showed two rates, one of $1.35 and one of $1.45 on "iron fireplaces and grates for same, N. O. S., made of wrougnt or cast iron." HELD, that where the tariff carries two rates for the same article the ship- per should not be charged the higher rate; that the charges exacted were un- reasonable to the amount they exceeded $1.35 per 100 lbs. on shipments moving prior to Jan. 1, 1909, and in excess of $1.40 per 100 lbs. on subsequent ship- ments. Reparation awarded. Ohio Foun- dry Co. V. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (mm) A declaration by the shipper in the invoices that the shipments were "gas grates" is not conclusive of the question of what the shipments actually are. The tariff application is to be con- strued with reference to what articles actually compris-e the shipments. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (nn) Complainant shipped cotton lin- ters, Barnwell, S. C, to Pawtucket, R. I., under a rate of 78^/4c per 100 lbs. Prior to the shipment complainant inquired of the initial carrier the lowest rate and was told that when the value was limited to 2c per lb. the rail-and-water rate was 53c and tne all-rail rate 54c. Thereupon complainant made out its own bills of lading reading "all-rail 53c," and they were signed by the agent of the carrier, with full knowledge on his part that the shipper desired the rate on cotton linters released to the valua- tion of 2c per lb., but neglected to in- dorse upon them any notation of the released valuation. HELD, it was the duty of the defendants to secure tue shipper's signature to the released valuation clause, and that the proper rate to apply was 54c. Reparation awarded. Southern Cotton Oil Co. v. S. Ry. Co., 19 I. C. C. 79. (oo) Rockhouse, Ky., is four miles farther from Brockwayville, Pa., than Marrowbone, Ky., which carried a rate of 18.5c per 100 lbs. to that point on oak cross-ties, C. L. The rate from Rockhouse was 20.5c. Shipments were billed from Marrowbone, notwithstanding their origin at and movement from Rock- house, and complainant contended that, owing to that fact, the Marrowbone rate was applicable. HELD, the con- tention was untenable. Preston v. C. & O. Ry. Co., 19 L C. C. 406, 407. (pp) The actual point of origin, and not the point from which the shipment was billed, determined the rate. Pres- ton V. C. & O. Ry. Co., 19 I. C. C. 406, 407. (qq) No through route and joint rate exists where one of the connecting roads does not file the tariff with the Commission. Fish & Co. v. N. Y. C. & St. L. R. R. Co., 19 I. C. C. 452, 453. (rr) A combination cannot be applied to shipments moving via one carrier which is effective only via the line of a competing carrier. Webster Grocer Co. V. C. & N. W. Ry. Co., 19 I. C. C. 493, 495. (ss) Complainant purchased an ex- change scrip book under a tariff provi- sion that provided for redemption of the cover or unused tickets within a specified time. The tariff carrying these provisions was not filed in that time and was also defective in other par- ticulars. Complainant mislaid the book and could not tender it for redemption within the time limit. HELD, complain- ant was entitled to redemption for the unused tickets in the book, since the error in the tariff made the time limit invalid. Rickel v. A. T. & S. F. Ry. Co., 19 I. C. C. 499. (tt) Complainant shipped whole and ground chile pepper from various Cali- fornia points to El Paso, Tex., under the second-class rate of $2 per 100 lbs.. Western Classification. At the same time there was in effect a commodity rate of $1.25 per 100 lbs. upon pepper. Western Classification specifically ap- plied second-class rating on pepper, also upon chile, ground or in the natural state, and upon chile powder. HELD, the commodity rate should be applied strictly, and where in the original clas- 822 TARIFFS, §7 (uu)— (aaa) sification provision is separately made for two articles closely resembling each other in form and nature, and a com- modity rate is subsequently established naming one of such articles, the com- modity rate so established cannot be applied on the similar article specifically named in the classification, but not spe- cifically named in the commodity tariff. Crombie & Co. v. S". P. Co., 19 I. C. C. 561, 562. (uu) Complainant shipped iron dry- ing racks, C. L., 1V2 ft. long, 31/2 ft. wide, 5y2 ft. high, consisting merely ol a framework divided in the middle by a vertical skeleton partition into two compartments, into each of which, rest- ing upon narrow ledges, might be placed a number of shallow pans for use in drying or otherwise treating articles. The Official Classification rated "drying racks" double first class, L. C. L.., no provision being made for C. L. ship- me-ts. It alpo rated "racks, n. o. s.," C. L., second class. HELD, complain- ant was entitled to the second-class rate on the shipment. Day Co. v. B. & O. S. W. R. R. Co., 19 I. C. C. 577. (vv) On Nov. 3, 1906, a tariff fixed a rate of $1.10 on "glass, rough rolled, vault or sidewalk and skylight, and similar rough rolled glass, n. o. s." Aug. 10, 1907, this tariff was amended, fixing a rate of $1.25 on "rough rolled glass, ribbed or wired." HELD, the term "skylight glass" in the tariff of Nov. 3 was not so specific as that of "wired or ribbed glass" in the tariff of Aug. 10, and that shipments of rough rolled ribbed and wired skylight glass should take the $1.25 rate, since the Aug, 10 tariff took these articles out of the operation of the tariff of Nov. 3. The term "skylight" being descriptive and having relation to the use to which the glass was to be put by the consignee could not be considered controlling over the specific provisions of the tariff mak- ing rates applicable to separate kinds of glass. Fuller & Co. v. S. P. Co., 18 I. C. C. 202, 204. (ww) Where cars are consigned to a certain point and then reshipped and there is no tariff provision for a recon- signment privilege at that point, the full combinations on that point must be applied. Marshall & Michel Grain Co. V. St. L. & S. F. R. R. Co., 18 L C. C. 228, 230. (xx) On a carload of folding chairs from Chicago, 111., to St, Joseph, Mo., defendant collected the third-class rate of 45c. Defendant's assistant general freight agent and the officials of ' the Western Ry. Ass'n and Inspection Bu- reau stated that the fourth-class rate applying to furniture should have been applied to the shipments in question. HELD, error in applying the class rate having been made, complainant was entitled to reparation on the basis of the lower rate. Royal INIetal Mfg. Co. V. C. G. W. R. R. Co., 18 I. C. C. 255, 256. (yy) On a less-than-carload shipment from Fort Wayne, Ind., to Beloit, Wis., of "triplex cloth" or "triplex covert," a manufactured article composed of cot- ton cloth and cotton shoddy held to- gether with a composition of rubber, the rate on cotton piece goods was ap- plied. The goods in question differed altogether from cotton piece goods in appearance, weight, texture and use. HELD, the rate applied was improper, and the first-class rate governing "dry goods, n. o. s,," should have been ap- plied. Rosenblatt & Rosenblatt v. C. & N. W. Ry. Co., 18 L C. C. 261, 263. (zz) The rates on bran from Minne- apolis to Marshfield, Amherst and other Wisconsin points was 10c. The tariffs provided that a reconsignment of the car might be made to a point beyond on the direct line without additional charge. Complainant on a car from Minneapolis to Amherst reconsigned the same upon arrival at Amherst to Marsh- field, so as to call for a back haul, and was charged an additional rate of 10c for the haul from Amherst to Marsh- field. No evidence was offered to show the reconsignment tariffs or the pub- lished rates exacted to be unreasonable. HELD, under the tariff as published complainant was not entitled to the re- consignment privilege. The charges be- ing collected in accordance with the published rate, the complaint should be lismissarl. Lull v. M. St. P, & S. Ste. M. Ry. Co., 18 1. C. C, 355, 356. (aaa) The tariff, naming the inbound rate to the point where reconsignment is availed of, must be used to ascertain what privileges, if any, are extended in the way of reconsignment. Townley Metal & Hardware Co. v. C. R. I. &• P. Ry. Co., 18 I. C. C. 378. 379. TARIFFS, §7 (bbb) — (kkk) 823 (bbb) It is necessary to specifically provide in tariffs that cement and nails going with roofing material may be in- cluded in making shipments of the latter so as to make the mixed shipment take the roofing material rate. Chatfield Mfg. Co. V. L. & N. R. R. Co., 18 I. C. C. 385. 387. (ccc) The Southern Classification ap- plied the sixth class rate upon "chains." Under the head of "machinery," conveyor chains, sprocket chains, etc., were rated sixth class. A special commodity rate of 26c between East Moline, 111., and New Orleans, La., the points in question, was included in the published tariffs and applied to "chains, packed," in carloads. The sixth class rate of 41c was exacted. HELD, the special commodity rate pub- lished did not apply to a shipment of "iron conveyor chains, sprocket, some- times called link belting," since sprocket chains, being used for an entirely dif- ferent purpose and of much greater value than ordinary chains, could not be held by the commodity tariff to be separated from the general machinery rate. Wood- ward, Wight & Co. V. C. B. & Q. R. R. Co., 18 L C. C. 500, 501. (ddd) A combination rate may not be used where the factors are not filed with the Commission. Hagar Iron Co. V. P. R. R. Co., 18 I. C. C. 529. (eee) On a carload of electrical hoist- ing machinery and elevator controllers, which were parts of the hoisting ma- chinery, complainant was assessed on a shipment from Yonkers, N. Y., to San Francisco, Cal., $1.40 on the machinery and $3 per 100 lbs. on the elevator con- trollers, the latter rate being the first- class rate on less than carload shipments of electrical appliances and supplies, n. o. s., in boxes or barrels. The tariff provided that the $1.40 rate should apply on hoisting machines, s. u. or k. d., also parts th-ereof as named and parts n. o. s., straight or mixed carloads. HELD, the whole shipment should have taken the $1.40 rate. Reparation awarded on that basis. Otis Elevator Co. v. N. Y. C. & H. R. R. R. Co., 17 L C. C. 3, 5. (fff) Where the language of a tariff is ambiguous in its specifications, and when there is a reasonable doubt as to its true import and meaning, a private agreement may be examined and em- ployed as a medium of explanation of the tariff to remove the ambiguity. Hood & Sons v. D. & H. Co., 17 I. C. C. 15, 19. (ggg) Under a published tariff fixing a rate on milk of "$16 per car of 250 cans or less, excess over 250 cans to be charged for at 6i/^c per can," the 6i/^c per can rate applies only on cans in excess of 250 shipped in the same car and not to those shipped in a second car. Hood & Sons v. D. & H. Co., 17 I. C. C. 15, 19. (hhh) The So. Ry. Eastern Vegetable Tariff No. 6, I. C. C. No. 10067, estab- lishing a rate of 32c on vegetables, does not apply on traffic handled by the At- lantic Coast Despatch, but only to traffic originating on the A. C. L. R. R. and handled in connection with the So. Ry. Voorhees v. A. C. L. R. R. Co., 16 I. C. C. 45, 46. (iii) The through commodity rate on sawdust in carloads from Duluth, Minn., to Andover, S. D., was 16c. The com- modity rate from Duluth to St. Paul was 4c, and the distance tariff rate from St. Paul to Andover 8i/^c. At the time of shipment there was no published tariff authorizing the application of the dis- tance tariff rates to local shipments. HELD, on the shipment in question the distance tariff could not be applied, and the only lawful charge was the through commodity rate of 16c. Diehl v. C. M. & St. P. Ry. Co., 16 L C. C. 190, 191. (jjj) Defendant carrier had no line from Duluth to St. Paul and no arrange- ment for running its trains over other lines between these points. Its through rate on sawdust in carloads from Duluth via St. Paul to Andover, S. D., was 16c. Its distance tariff rate from St. Paul to Andover was 8i/^c. Defendant filed a supplemental tariff applying the distance tariff rate between stations on its line in an endeavor to. lower the Duluth to Andover rate. HELD, the publication of the supplemental tariff did not effect the result desired, and the only lawful through rate from Duluth to Andover was the rate of 16c. Diehl v. C. M. & St. P. Ry. Co., 16 I. C. C. 190, 191. (kkk) Starch is an uncooked product of porn and cannot, except by specific exception, properly be excluded from i», cariff list which includes "all uncooked manufactured products of corn," nor from a list which includes "all uncooked grain or cereal products manufactured 824 TARIFFS, §7 (111)— (sss) from corn. Douglas & Co. v. C. R. I- & P. Ry. Co., 16 I. C. C. 232, 244. (Ill) Tarilfs are to he construed ac cording to their language. The intent of the framers does not control. New- ton Gum Co. V. C. B. & Q. R. R. Co., 16 I. C. C. 341, 346. (mmm) The law compels carriers to publish and post their schedules of charges upon the theory that they will be informative. The shipper who con- sults them has a right to rely upon the obvious meaning. He cannot be charged with knowledge of the intention of the framers, or the carrier's canons of con- struction, or of some other tariff not even referred to in the one carrying the rate. The public posting of tariffs will be largely useless if the carrier's interpretation is to be dependent upon tradition and the arbitrary practices of a general freight office. Newton Gum Co. V. C. B. & Q. R. R. Co., 16 I. C. C. 341, 346. (nnn) A shipper cannot be charged with knowledge of the intent of the framers of schedules or the carrier's canons of construction. Newton Gum Co. V. C. B. & Q. R. R. Co., 16 I. C. O. 341, 346. (ooo) On carloads of show cases from Quincy, 111., to San Francisco, Cal., complainants were assessed $3 per 100 lbs., which was the first-class rate, and was set forth as applying to showcases In the Western Classification. The Transcontinental Freight Bureau west- bound tariff provided that "Furniture (new), all kinds," should take a rate of $2.20. Defendants contended that showcases, being provided for sepa- rately in the Western Classification, were not included in the heading of furniture in the commodity tariff. De- fendants recognized liquor cases and grocery display counters as furniture by listing them under that caption, under the Western Classification. HELD, il defendants desired that the application of the commodity rate on furniture, as carried in the commodity tariff, should be restricted to the carload list of fur- niture in the current classification tar- iff, they should so stipulate in their tariffs, but that the $2.20 commodity rate applied to the shipments in ques- tion. Reparation awarded. Newton Gum Co. V. C. B. & Q. R. R. Co., 16 I. C. C. 341, 346, 347. (ppp) A distance tariff is to be ap- plied only when no other rates are pro- vided, or when, under a special provi- sion in the tariff therefor, it makes lower than the specific rate shown in the same tariff. Lee-Warren Milling Co. V. C. R. L & P. Ry. Co., 16 I. C. C. 422, 423. (qqq) Defendants' rates on animal traps from Niles, Mich., to Chicago were, in bundles, first-class rate of 22c; in barrels or boxes, third-class rate of 17c. On a shipment in crates com- plainant was assessed the 22c rate. HELD, the published tariff did not au- thorize the shipment to be rated as third class, so as to take the 17c rate, but it should be amended to include crates, and the 17c rate established for the future. Reddick v. M. C. R. R. Co., 16 L C. C. 492. (rrr) On carload shipments of tee rails, or elevator guides, from Chicago to Portland, Ore., complainant was as- sessed the $1.40 rate applicable to ma- chinery and machines. At the time of shipment the published tariff provided a rate of 75c on tee rails and other iron and steel articles. About one year after shipment a supplemental tariff was filed naming a rate of 75c on ele- vator guides. There was evidence this supplemental tariff was intended to con- firm the application of the iron and steel tariff to elevator guides. HELD, the shipments should have taken the 75c rate. Reparation awarded on the basis of that rate.. Otis Elevator Co. v. C. G. W. Ry. Co., 16 I. C. C. 502, 504. (sss) Complainant constructed a dredging machine, except the spud and ladder frame belonging to same, the construction of which parts was sublet to another company, which, at the di- rection of complainant, shipped same separately on four cars from Chicago to Oroville, Cal. The spud was 61 ft. 3 in. long, weighing 23,295 lbs., the ladder being 66 ft. long, weighing 53,575 lbs. The spud and ladder were fitted and shipped, ready to be fastened into place in the dredging machine. Ine descrip- tion of articles included in the bridge material and iron and steel articles tar- iffs did not fit the spud and ladder, and no tariff description fitted same except class A rate of the machinery and ma- chines tariff, which called for a rate of $1.53 per 100 lbs. HELD, complainant was properly assessed the $1.53 rate and TARIFFS, §7 (ttt)— (aaaa) 825 was not entitled to reparation on the basis of the 75c rate included in the iron and steel articles tariff. Link-Belt Co. V. C. & N. W. Ry. Co., 16 I. C. C. 566, 568. (ttt) Carriers and shippers must take the specific rates and fares pro- vided in the tariffs, regardless of any long-and-short-haul clauses, maxima rules, alternative rate or fare provisions, etc., contained in them. Williamson v. O. S. L. R. R. Co., 15 I. C. C. 228. (uuu) A tariff fixing a rate on "emi- grant movables," and including as such household goods limited quantities of lumber, and "property included in the outfit of intended settlers," permits the shipper to include in his carload of household goods 5,165 lbs. of cord wooKi intended for fuel and not intended for sale or speculation. Place v. T. P. & W. Ry. Co., 15 I. C. C. 543, 545. (vw) It is as necessary and proper to include fuel wood in emigrant mov- ables as to include fence posts. Place V. T. P. &. W. Ry. Co., 15 I. C. C. 543, 545. (www) Tariffs reading "between" are always understood to apply in either di- rection. Advance Thresher Co, v. O. & N. W. R. R. Co., 15 I. C. C. 599, 600. (xxx) A tariff appeared upon its face to make a joint rate of 20.5c per 100 lbs. on gas plant machinery, Warren, Pa., to Cadillac and Jennings, Mich., via Buffalo. In a note appearing on the tariff to which reference was made by the letter "f" opposite Warren, it was stated that unless covered by agreed percentages through rates must not be quoted from Warren. The points between which percentages had been agreed upon by the connecting carriers were not named in the tariff or filed with the Commission. HELD, such method of tariff construction violated section 6 of the Act, and the same must be reissued by defendants so as to ac- cord with the rules prescribed by the Commission. Struthers-Wells Co. v. Penn. R. R. Co., 14 I. C. C. 291, 292. (yyy) Where a tariff duly filed with the Commission bears an I. C. C. num- ber and states that the rates contained therein will apply between Louisville, Ky., and New Albany, Ind., on through business, and another local tariff apply- ing to freight between Louisville and New Albany is in force, the former tar- iff governs through business destined to New Albany from points south of Louisville and business originating north of New Albany and destined to Louis- ville. R. R. Com. of Ind. v. K. & I. B. & R. R. Co., 14 I. C. C. 563, 565. (zzz) On a carload of coal from Springfield, 111., to Leona, Kan., a rate of 10.0013c was assessed. Springfield took the same rate as Peoria. The tar- iffs provided that the rates from St. Louis should be 10c per 100 lbs. except on shipments originating beyond. In such case the rates from Mississippi River points would be Ic per 100 lbs. less than such 10c rate. The same tar- iff on another page also provided that in making rates from Peoria to points listed on a certain page a differential of .0013c should be added to the rates apply- ing from St. Louis. HELD, under such tariff the rate from Springfield and Pe- oria was in the nature of a specific rate and was 10.0013, not 9.0013. Lan- ing-Harris Coal & Grain Co. v. St. Jo- seph & Grand Island Ry. Co., 13 I. C. C. 317, 318. (aaaa) In every instance where a commodity rate is named in a tariff upon a commodity and between specified points, such commodity rate is the law- ful rate and the only rate that can be used with relation to that traffic between those points even though a class rate or some combination may make lower. The naming of a commodity rate on any arti- cle or character of traffic takes such ar- ticles or traffic entirely out of the classi- fication and out of the class rates be- tween the points to which such com- modity rate applies. Porter v. St. L. & S. F. R. R. Co., 15 L C. C. 1, 5. (aaaaa) On an emigrant outfit from Fletcher, Okla., to Bovina, Tex., over the St. L. & S. F. R. R. to Quanah, Tex., thence via the F. W. & D. C. Ry. to Amarillo, Tex., and thence over the P. & N. T. Ry, to Bovina, complainant was assessed 68c per 100 lbs. No through rate was applicable from Fletcher to Bovina. The undisputed rate from Fletcher to Amarillo was 35c. The tariff named a commodity rate from Amarillo, Tex., to Roswell, N. M., and intermediate points, of 25c. Bovina was an intermediate point. This, added to the 37c rate, made a total charge of 62c from Fletcher to Bovina. The same tariff provided that on ship- ments received from connecting lines at 826 TARIFFS, §7 (bbbb) — (eeee) Amarillo, when coming from or destined to points without the state of Texas, a rate of 31c should be applied for dis- tances over 80 miles. Bovina is 80 miles from Amarillo. HELD, the lawfully ap- plicable rate was 62c, made up of 37c from Fletcher to Amarillo and 25c from Amarillo to Bovina under the following rules of the Commission: (1) Rule 5. If no specific rate from point of origli to destination pending a through ship- ment is provided, and no specific manner of constructing a combination rate for it is prescribed, the lowest combination of rates applicable via the route over which the shipment moves is the lawful rate for that shipment. (2) Rule 7. The naming of a commodity rate on any ar- ticle or character of traffic takes such article or traffic entirely out of the classi- fication and out of the class rates be- tween the points to which such com- modity rate applies. (3) Rule 10. It is permissible for a carrier to issue a dis- tance tariff for use in determining the rates on its own lines, but only in cases where no other rates are provided. Por- ter V. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 4. (bbbb) After the passage of the Hep- burn Act the rule of the Commission was not that clauses applying rates to intermediate points should be eliminated from tariffs and the specific points be mentioned, but that indefinite and un- certain "intermediate" and "maxima" rules should be amended so as to make their application affirmative and definite and to state plainly what rates should be applied at intermediate points instead of saying that certain rates "should not be exceeded" at said points. White Water Farms Co. v. P. B. & W. Ry. Co., 13 I. C. C. 526, 527. (bbbbb On rye originating at Mani- towoc, Wis., and delivered to the de- fendant at West Fairport, O., for trans- portation to Baltimore complainant was assessed storage and insurance charges on the grain at West Fairport. Defen- dant's tariffs provided that when grain was left at West Fairport for immedi- ate shipment the storage or insurance charges should be borne by defendant; but that when ordered stored by the shipper to be later moved at the ship- per's direction, they should be borne by the shipper. Complainant and defend- ant misunderstood each other, and their minds never met on the question as to whether the rye was to be detained at West Fairport or shipped out immedi- ately. On account of the shortage of cars it was stored for some time at that point. The tariffs provided that "grain will be considered as for imme- diate shipment (as promptly as car sup- ply will permit), unless otherwise or- dered." HELD, in the absence of spe- cific directions from complainant order- ing the detention at West Fairport, th€ rye must be considered as destined for immediate shipment from that point, Reparation awarded. England v. B. & O. R. R. Co., 13 I. C. C. 614, 618. (cccc) Defendants had in effect two tariffs on nitrate of soda from New Or- leans, La., to Fort Smith and Fenn, Ark., one naming a rate of 20c when this commodity was to be used exclu- sively in the manufacture of fertilizer, and the other naming a rate of 27c when it was to be used in the manufac- ture of powder. No fertilizer was, in fact, manufactured at either Fenn or Fort Smith. The 27c rate was applic- able to many other points where powder was made. Complainant, being assessed the 27c rate, asked for reparation on the basis of the 20c rate. HELD, the 2iC rate was the only one lawfully applic- able to the shipments in question. Repa- ration denied. Fort Smith Traffic Bu- reau V. St. L. & S. F. R. R. Co., 13 I. C. C. 651, 656. (ccccc) A shipment consisted of a traction engine, pump and hose, and tank wagon. The tank wagon, being the con- tainer of the fuel of the engine, should have been considered a part of the en- gine shipment and charges assessed ac- cordingly. Minneapolis Threshing Ma- chine Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 452. (dddd) Where there are no through rates, local published rates suffice — lo- cals and proportionals. Foster, Glassel Co. V. K. C. S. Ry. Co., 121 La. 1053, 1057, 46 So. 1014. (eeee) If there is no through rate provided from point of origin to destina- tion of a through shipment, the lowest combination of local rates via the route over which the shipment moves is the lawful rate, despite the erroneous rating given by the railroad clerk or agent. Foster, Glassel Co. v. K. C. S. Ry. Co., 121 La. 1053, 1057, 46 So. 1014. TARIFFS, §7 (ffff)— §8 (b) 827 (ffff) A shipment was billed by plaintiff's agent as emigrant movables. HELD, that the designation covered plaintiff's goods, consisting of typewriter, dictionary, wearing apparel, trunk and personal effects, and was not a falsifica- tion or misrepresentation which estopped plaintiff from claiming the value of those goods; nor w^as such designation of the goods a violation of the Interstate Com- merce Act, as amended June 18, 1910. O'Connor v. G. N. Ry. Co. (Minn., 1912), 136 N. W. 743, 745. (gggg) An interstate rate filed and published with the Interstate Commerce Commission named a charge of $1.20 for peaches in carloads, contained in baskets covered with gauze netting, and a charge of 90c in baskets with wood covers, in crates or in boxes. A layer of peach baskets was placed by the shipper on the floor of the car; cross- pieces were nailed to the upright posts, and then a new floor was nailed to these cross-pieces just above the first tier of baskets; then another tier of baskets was placed on this new floor; then new cross-pieces were nailed to the upright posts and a new floor laid over the second course of baskets, and so on to the top of the car. Each end of the car, when so filled in, was boarded up and nailed, so as to form a sort of box at each end of the car. HELD, the $1.20 rate applying to baskets with gauze netting was properly col- lected. Houseman v. Fargo (N. Y., 1910), 124 N. Y. Supp. 1086, 1088. (hhhh) A shipper, ignorant of a classification giving a lower rate for an interstate shipment upon a limited valu- ation, who ships a horse at such rate without being informed that a special valuation has been made, and who after- wards sues to recover for injury to the horse on the basis of its true value, is not thereby rendered guilty under sec- tion 10 of the Interstate Commerce Act, as amended March 2, 1889, which makes it a misdemeanor for a shipper to ob- tain a preference in freight rates by knowingly and wilfully sending a ship- ment under a false billing, false repre- sentation of contents of package, etc. Kissinger v. Fitzgerald, 152 N. C. 247, 251, 67 S. E. 588. (iiii) Plaintiff carrier sued to collect, as the published interstate rate, a charge of 60c on cement from Portland, Colo., to La Grande, Ore. The supple- ment to the Transcontinental Freight Bureau westbound tariff stated that "the following special commodity rates will apply only from and to points desig- nated, except that rates applying from Missouri River common points will ap- ply as maxima from Colorado terminals and Colorado common points." It gave the rate from Portland, Colo., to Port- land, Ore., as 35c. Plaintiff's tariff named a special commodity rate on ce- ment from Portland, Ore., to La Grande of 25c. A transcontinental circular pro- vided that "rates applicable to or from intermicdiate Pacific coast points, as published in current eastbound and west- bound tariffs, will apply to or from sta- tions named herein on the lines of the 0. R. & N. Co., in Oregon, Washington and Idaho — west bound; where lower through rates can be made by use of the terminal rate to Portland plus the local rate from Portland to destination, such lower through rate will govern." It appeared that Portland, Ore., took a terminal rate and La Grande took rates applicable to or from intermediate points. Plaintiff offered no evidence of any through rate from Portland, Colo., to La Grande or of the several local rates between such points. HELD, the evidence did not entitle plaintiff to col- lect a rate of 60c, or the 35c rate from Portland, Colo., to Portland, Ore., plus the 25c local rate from Portland, Ore., to La Grande. O. R. & N. Co. v. Coolidge (Or. 1911), 116 P. 93, 95. (jjjj) Where the facts are such that it is not clear that the conditions are so similar as to render the Act to Regulate Commerce or the rate pub- lished thereunder inapplicable, such rate will be held, in a civil proceeding, to control. Coeur d'Alene & S. Ry. Co. V. U. P. R. R. Co. (Wash., 1909), 95 P. 71, 77. §8. Ambiguity. See Commutation Fares (a); Re- leased Rates, §4 (b); Through Routes and Joint Rates, §15 (qqqq). (a) A tariff should not be ambiguous and uncertain and place upon some clerk the burden of construing it. Standard Oil Co. v. I. T. R. R. Co., 23 1. C. C. 369, 371. (b) It is not just or fair to the shipping public to promulgate as a basis for determining rates a classification the terms of which are indefinite or 828 TARIFFS, §8 Cc)— (1) impracticable of application either in whole or in part. Shippers must neces- sarily be more or less misled thereby, and any effort on the part, of the car- riers to apply the classification by a lax interpretation thereof must result in inextricable confusion. The classi- fication of an article of commerce should be plainly and clearly stated in terms that the shipping public may readily understand. Tariffs are to be construed according to their language and the intention of the person who framed the tariff and the arbitrary practice of the carriers thereunder may not be looked to as an authoritative construction there- of. Pacific Coast Biscuit Co. v, S. P. & S. Ry. Co., 20 I. C. C. 546, 549. (c) Carriers should not publish am- biguous tariffs, but their intent as evi- denced by their present practice should be definitely expressed. Sweeney, Lynes & Co. V. N. Y. P. & N. R. R. Co., 20 I. C. C. 600, 601. (d) The duty rests upon a carrier to clearly state its rates and charges in its tariff. Ford Co. v. M. C. R. R. Co., 19 I. C. C. 507, 511. (e) A carrier should not carry in its tariff a rule that on its face is vague and misleading. Ponchatoula Farmers' Ass'n V. I. C. R. R. Co., 19 I. C. C. 513, 520. (f) The publication of a tariff for any one shipper which does not apply to all is clearly a violation of the law. American Creosote Works v. I. C. R. R. Co., 18 I. C. C. 212, 215. (g) The commodity rate of 30c ap- plicable from New Orleans and other points, including Tallulah, La., to Texas points, including Lime City, was carried in defendant's tariff, which, however, provided that this rate did not apply from points specified in certain tariff publications of the individual lines. HELD, the tariff was improperly con- structed, since a person consulting it could not be informed of the provisions in the tariffs of the individual lines, and it must be reconstructed so as to show clearly and definitely its application. Noble V. V. S. & P. Ry. Co., 18 I. C. C. 224, 225. (h) A tariff providing that the des- tination of any interstate carload ship- ment may be changed after it has reached the first destination, when the substituted destination is a point where through rates and divisions are in effect via the route of movement, is vague and uncertain and not in, accord- ance with the requirements of the Commission for the publication of tar- iffs. Townlev Metal & Hardware Co. V. C. R. I. & P.^Ry. Co., 18 L C C. 378, 379. (i) Ambiguous and indefinite tariffs, susceptible of and resulting in conflict- ing interpretations, are objectionable. Old Dominion Copper & Smelting Co. V. P. R. R. Co., 17 L C. C. 309, 311. (j) On shipments of coke from vari- ous points in Colorado, New Mexico, Alabama, Tennessee, Virginia, West Virginia and Pennsylvania to Globe, Ariz., defendants demanded payment on the basis of the capacity weight of the cars and presented bills to complainant on that basis, which insisted that the charges should be assessed on the actual weight based upon the minimum of 30,000 lbs. and paid the charges on that basis. The published tariffs were ambiguous as to whether the charges should be assessed on the capacity weight or actual weight with a minimum of 30,000 lbs. HELD, defendants prop- erly refused to concede the charges asked for by complainant in view of the confusion of their tariffs since they could lawfully assess charges only on the basis of such tariffs; that they were reprehensible in permitting such confusion to exist; that the complaint, in view of the fact that complainant did not actually pay the excess charges objected to, should be dismissed with the understanding that defendants would clear up their tariffs so as to fix charges on the basis of the 30,000 lbs. minimum; and that they might omit to collect the charges based upon assumed weights in excess of the actual weights. Old Dominion Copper Mining & Smelting Co. v. Penn. R. R. Co., 17 I. C. C. 309, 312. (k) A tariff restricting the applica- tion of a rate to beet pulp when in- tended for the manufacture of sugar carries a meaningless restriction, which is to be ignored in view of the fact that beet pulp is what is left of beets after the sugar has been extracted. Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 L C. C. 548, 549, 550. (1) Where the published tariff names a joint through rate of 25c on packing TARIFFS, §8 (m)— §10 (a) 829 house products and a joint through rate of 29.1c on grease in carloads, it leaves ambiguous the proper rate to be charged on non-edible grease and should be amended. Dayton Chamber of Com- merce V. C. M. & St. P. Ry. Co., 16 I. C. C. 82, 83. (m) The law compels carriers to pub- lish and post tariffs on the theory that they will be informative. Newton Gum Co. V. C. B. & Q. R. R. Co., 16 I. C. C. 341, 346. (n) A rate or tariff published and filed with the Commission cannot be held to be legal merely because of that fact; it must be also plain and intelligi- ble. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 4. (o) Carelessly worded items in a tariff offer opportunity to misconstrue its application. Payne v. M. L. & T. R. R. & S. S. Co., 15 I. C. C. 185, 188. (p) The application of a tariff should he stated so clearly as to prevent mis- interpretation, misunderstanding or mis- representation. Payne v. M. L. & T. R. R. & S. S. Co., 15 I. C. C. 185, 190. (q) The Act to Regulate Commerce contemplates not only just and reason- able rates, but plain and intelligible rates. Complication, intricacy and involution in- vite, if they do not intend, injustice, in- equality and discrimination. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 4. (r) Defendant carriers are criticized for the practice of inserting obscure and general clauses in voluminous tariff pub- lications to the effect that where a com- bination of locals will make a lower ag- gregate through rate than the specific joint rate therein stated, the former will be used, since concern:; employing a traffic expert are able to secure combinations resulting in lower aggregate charges than can be secured by the smaller or occa- sional shipper, who is not able to em- ploy such an expert and who is required to pay the joint through rate appearing on the face of the tariff. Specific joint through rates should be published and adhered to, and only in rare instances and under peculiar circumstances should said through rates be made higher than the sum of the locals. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347. §9. Cancellation. (a) Where the initial carrier's ad- vanced rate tariff does not cancel the lower commutation rate named in the tariff of another line to which the initial line is a party, the lower rate is the legal rate. Stilwell v. L. & H. R. Ry. Co., 19 I. C. C. 404. (b) The lawfully established rate re- mains in force until specifically can- celed. Stilwell V. L. & H. R. Ry. Co., 19 I. C. C. 404, 405. (c) A rate, once lawfully published, continues to be the lawful rate until it has been lawfully cancelled. A sub- sequent tariff, naming other rates with- out cancelling the previous rates, can- not carry the new rates into lawful ef- fect. The silence of a subsequent tar- iff with respect to rates lawfully in effect cannot be accepted as a law- ful cancellation of the previous rates, nor will vague references in subse- quent tariffs as to the cancellation of previous tariffs have that effect. The law and the requirements of the Com- mission provide a method by which existing rates may be cancelled, and other rates put into effect, and these requirements must be fulfilled in order to give legal effect to a new rate in- tended to take the place of an existing one. The Albany Box & Basket Co. v. I. C. R. R. Co., 16 I. C. C. 315, 316. (d) A cancellation of a schedule of rates is not to be construed as a with- drawal of all rights arising under such schedule to those who have availed themselves of its provisions prior to the date that such schedule dies. If there is offered to the shipper under the tariff a right of stopping-in-transit, re- consignment, storage or return of freight, he is entitled to the use of such privilege even though it may later be cancelled out of the tariff before the time allowed for the exercise of such right has expired. The date of original shipment determines the rights, privi- leges and obligations attaching to that shipment throughout its transportation. Interstate Remedy Co. v. American Ex- press Co., 16 I. C. C. 436, 438, 439. §10. Concurrences. See Proportional Rates, I (b); Through Routes and Joint Rates, §2. (a) Complainant shipped carloads of cement from New Village, N. J., to Ak- 830 TARIFFS, §10 (b)— §11 (e) ron, O., by way of the defendant, B. & O. R. R. Co., relying upon the published tariff of defendant, which represented that the carrier would make a certain terminal delivery on the tracks of the Erie R. R. at Akron, O., and absorb the switching charge. This tariff was pub- lished without the consent of the Erie R. R., which company refused to make the delivery mentioned. Complainant was damaged to the extent of $12.60, the cost of hauling the cement to the consignee. HELD, complainant was en titled to the damages caused by the defendant's publication of a tariff show- ing that it could make delivery on the track of a carrier from which it had not obtained concurrences. Edison Port- land Cement Co. v. D. L. & W. Ry. Co., 22 I. C. C. 382. (b) Where there is concurrence in the guide book, but no concurrence in rate, though such was intended, there is no legal rate or basis of reparation, tariff rate charged not being unlawful. Noble V. G. T. W. Ry. Co., 20 I. C. C. 70, 71. (c) Participating carrier not properly concurring in tariff caused higher rate to be charged. Tariff adjusted. Reparation awarded. Wisconsin Bridge & Iron Co, V. C. M. & St. P. Ry. Co., Unrep. Op. 185. (d) Tariff providing for storage, not concurred in. Charges assessed there- under should be refunded without order of Commission. West Coast Shingle Co. V. C. St. P. M. & O. R. R. Co., Unrep. Op. 596. §11. Conflict. See Supra, §7 (II); Bills of Lading, §9 (2); Reasonableness of Rates, §90 (a). (a) From Nov. 15, 1909, to Jan. 1, 1910, complainant shipped over defend- ant's line from Laurinburg, N. C, to Birmingham, Ala., five carloads of cot- tonseed hulls, for which he was charged $3.40 per ton. Supplement No. 42 to Sea- board Air Line cottonseed products tariff, effective Aug. 25, 1909, named a rate of $2.50 per ton. Supplement No. 50 to the same tariff named a rate of $3.40 per ton without specifically stating that the $2.50 rate was thereby canceled. A rule of the Commission provides: "If a tariff or supplement to a tariff is issued which conflicts with a part of another tar- iff Or supplement to a tariff which is in force at the time, and which is not thereby canceled in full, it shall specifi- cally state the portion of such other tariff which is thereby canceled . . ." Complainant claimed reparation for the difference between $3.40 and $2.50 per ton. HELD, the rule applied to a case where a supplement conflicted with a part of its original tariff or with a part of a previous supplement to such original tariff. In view of the fact that the tariff was published prior to the issuance of the rule relied upon, and later reissued in conformity with the rules, complaint will be dismissed. Veitch V. S. A. L. Ry., 22 I. C. C. 4, 6. (b) Rule 8 (a) Tariff Circular No. 18-A, directing that if a supplement to a tariff is issued which conflicts with a part of a previous supplement, which is not thereby canceled in full, that such newly issued supplement should specifically state the portion of the previous supplement intended there- by to be canceled. HELD, to apply to successive supplements to the same tar- iff, as well as to other and different tar- iffs. Veitch V. S. A. L. Ry., 22 I. C. C. 4. (c) Switching charges were collected from complainants on carloads of grain at Chicago. Three tariff provisions, ef- fective the same day, Aug. 28, 1906, were the basis of the complaint. HELD, where there are confiicting rules of different tariffs which become effective on the same date, the lower of the rates so published is the legal rate. Badenoch Co. V. C. & N. W. Ry. Co., 22 I. C. C. 30, 37. (cc) Where the tariff carries two rates for the same article the shipper should "not be charged the higher rate. Ohio Foundry Co. v. P. C. C. & St. L. Ry. Co., 19 I. C. C. 65, 67. (d) From 1899 to Nov. 10, 1908, a rate of 17c was in effect on agricultural im- plements. Another tariff of defendant effective in 1905 and remaining in effect until Nov. 10, 1908, established a con- flicting rate of 20c without specifically cancelling the 17c rate. HELD, the 17c and not the 20c rate was in effect be- tween 1905 and Nov. 10, 1908. Van Brunt Mfg. Co. v. C. M. & St. P. Ry. Co., 17 L C. C. 195, 196. (e) Where the rate of the delivering carrier conflicts with the rate previously established by the initial line, the for- mer is not the legal rate. Sunderland TARIFFS, §11 (f)— §14 (e) 831 Bros. Co. V. M. K. & T. Ry. Co., 18 I. C. C. 425, 426. (f) A lawfully established rate re- mains In effect, and is the only lawful rate until canceled, notwithstanding a subsequently published conflicting rate. The latter do-es not supersede, nor can it be substituted for, the prior existing rate except by proper tariff provision to that effect. Virginia-Carolina Chemical Co. v. S. Ry. Co., Unrep. Op. 555. §12. Cross-References. (a) The provisions of a storage and reconsigning tariff issued separately by one carrier, to which two other connect- ing carriers are not named as parties, cannot be applied to through movements under the joint tariff of the three car- riers unless the latter tariff by express reference to the former so provides. Wash. Broom & Woodenware Co. v. C. R. I. & P. Ry. Co., 15 I. C. C. 219, 221. §13. Index. See Supra, §7 (ii). (a) Defendant's tariff in the index contained the following item: "Hague, N. D 4913-818D." Complainant's traffic manager, desiring to make a ship- ment to Hague, Emmons County, exam- ined item 4913 and found a rate via the C. M. & St. P. Ry. of 46c per 100 lbs., and by reference to item 8186 found a rate via the G. N. Ry. of 40c. He therefore routed ,the car via the G. N. Ry. It developed that in North Dakota there were two stations of the same name, one in Emmons County, local to the C. M. & St. P. Ry., while the one on the G. N. Ry. was in Traill County. On account of this error the shipment moved to its proper destination by a circuitous route under a rate of 53i^c. HELD, that as defendant indexed in its tariff only one station named Hague and did not indi- cate in the rate tables that there was more than one station of that name, the only natural inference therefrom was that the tariff offered two rates via the different routes to Hague, N. D. ; and that defendant was therefore liable for the damage caused through its defective tariff. Reparation awarded. Larson Lumber Co. v. G. N. Ry. Co., 21 I. C. C. 474. (b) Where there are two stations of the same name in the same state in dif- ferent counties a tariff which does not in its index contain such information, but leads a reader to suppose there is but one station of that name in the state, does not comply with section 6 of the Act to the effect that "schedules . . . shall plainly state the places between which property and passengers shall be carried. . . ." Larson Lumber Co. v. G. N. Ry. Co., 21 I. C. C. 474, 475, 476. (c) Point given number in index, but no rate applicable to that number. Rejv aration awarded. Arkansas Fuel Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 246. §14. Legality. See Proportional Rates, III. (a) A tariff is not unlawful on the ground that it is in effect an exclusive service for the benefit not of the general public but of a single shipper, where the result arises merely from the fact that one shipper is in a position to avail himself of the tariff, while others are not. Albree v. B. & M. R. R. Co., 22 I. C. C. 303, 319. (b) A tariff of milk rates offered cer- tain carload rates for a specified distance. HELD, that to sustain the contention that the tariff provided carload rates con- structed upon a mileage basis, a provision should be inserted specifically so stating, in order to avoid the objection that the tariff is discriminatory upon its face. Al- bree V. B. & M. R. R. Co., 22 I. C. C. 303, 319. (c) A tariff is unlawful under the 15th section of the Act which compels a shipper to load his milk into a car leased by another shipper in such a way as to disclose the secrets of his business and which compels him to pay the transpor- tation rate to such other shipper. Al- bree V. B. & M. R. R. Co., 22 1. C. C. 303, 321. (d) Tariffs which contain rates appli- cable only to the shipments of certain consignees, or applicable only when 8 commodity is put to a particultr use and which are restricted to the use o^ certain shippers and not open to all shippers alike, are in violation of section 2 of the Act and unjustly discriminatory in violation of section 3 of the Act, and are therefore unlawful. In Re Restricted Rates, 20 I. C. C. 426, 437. (e) A tariff is contrary to law which provides that the rate in effect at the time of reshipment shall govern. South- ern Cotton Oil Co. V. A. C. L. R. R. Co., 19 L C. C. 434. 435. 832 TARIFFS, §14 (f)— TELEPHONE COMPANIES, §1 (a) (f) The Commission will not sanction a tariff rate published only for articles to be employed in a special undertaking. American Creosote Works v. I. C. R. R. Co., 18 I. C. C. 212, 215. (g) The law does not contemplate that the shipper shall move upon any other theory than that the provisions of the carrier's tariff are in full compliance with the law's demands. Interstate Rem- edy Co. V. American Express Co., 16 I. C C. 436, 439. (h) Every rate is presumed to be lawful. Banner Milling Co. v. N. Y. C. & H. R. R. R. Co., 14 I. C. C. 398, 408. (i) As the Interstate Commerce Act stood prior to the amendment of June 18, 1910, the Commission could not be held to have approved rate schedules merely from the fact that the same were filed with that body. Cramer v. C. R. I. & P. Ry. Co. (la. 1911), 133 N. W. 387, 390. (j) Charges according to published rates with the sanction of the Interstate Commerce Commission are prima facie correct. Foster, Glassel Co. v. K. C. S. Ry. Co., 121 La. 1053, 1058, 46 So. 1014. (k) It is permissible for a carrier to issue a distance tariff for use in determin- ing rates on its own lines, but only in cases where no other rates are provided. Porter v. St. L. & S. F. R. R. Co., 15 1. C. C. 1, 5. (1) A rate or tariff published and filed with the Commission cannot be held to be legal merely becauso of that fact; it must also be plain and intelligible. Por- ter V. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 4. §15. Reasonableness. (a) The rule requiring the consignee to secure a berth for unloading is not unreasonable. Mosson Co. v. P. R. R. Co., 19 I. C. C. 30, 32, 33. (b) On carloads of sheep from points in California to Tacoma, Wash., com- plainant ordered double-deck cars and was furnished single-deck cars. Defend- ant's tariff provided that on double-deck cars a charge of 170 per cent of the rate on single-deck cars would be assessed, and that if the company could not fur- nish the double-deck equipment the sin- gle-deck car rates would be charged. De- fendant, at the time of the shipments in question, had no double-deck cars avail- able and the evidence indicated that on account of curves, tunnels and grades its line the use of double-deck cars \ not practicable. Complainant also tacked the rates charged as unreasona and offered in evidence comparative ra on shipments of sheep westbound i Tacoma, and of cattle northbound ii Tacoma. HELD, the provision in the 1 iff relating to single-deck charges y not unreasonable, and the evidence comparative rates was not sufficient establish the unreasonableness of defe ant's rates. Carstens Packing Co. v. P. Co., 17 I. C. C. 6. (c) The published tariffs in Tru Line territory provided that the rates shipments of oil should be on the ba of 90 per cent of fifth-class rates as all points from which there was a mo ment of oil, but there was no provis: as to destinations not specifically nan and such destinations would, therefc under the tariffs take fifth-class rat The tariffs in Central Freight Assoc tion territory contained a general pre sion that shipments of oil should t£ 90 per cent of fifth-class rates. HEI carriers in Trunk Line territory shoi include in their tariffs a regulation p viding for the application of 90 per c< of fifth-class rates to the transportat; of oil in carloads between all points to which no specific commodity ra were in force. National Petroleum As V. Ann Arbor R. R. Co., 14 I. C. C. 2 282. (d) Where the published intersti rate is proved, its reasonableness cam be questioned by the shipper in an acti by the carrier in a state court to colL same. O. R. & N. Co. v, Coolidge (Oi 1911), 116 P. 93, C5. TELEGRAPH COMPANY. See Terminal Facilities, §3 ( Transportation, $1 (g). TELEPHONE COMPANIES. L DISCRIMINATION IN SERVICE. §1. In general. I. DISCRIMINATION IN SERVICE. §1. In General. See Special Contracts, §2 (o) ; Ti minal Facilities, §3 (j); Transpi tation, §1 (n). (a) Defendant in August, 1902, esU lished a small exchange in Montgome County, Md., at a point about one m TELEPHONE COMPANIES, §1 (b)— TERMINAL FACILITIES, §1 (b) 833 north of- the boundary line separating that state from the District of Columbia. Subscribers had to pay a toll of 10c to reach persons in the District of Co- lumbia, and District of Columbia calls to this exchange paid a similar toll. In 1905 this exchange was abandoned, and the Chevy Chase exchange opened in the District of Columbia. The old sub- scribers still had to pay their tolls to call in the District, but calls from the District to them paid no toll. Subse- quently this exchange was abandoned and the Cleveland exchange opened fur- ther south, in the city of Washington. The old subscribers to the service given by the first exchange, the Somerset exchange, and to the second exchange, had their contracts continued to the new exchange, on the same basis as orig- inally entered into, which gave them substantially lower rates than those charged new subscribers or subscribers in the District of Columbia. There were 37 of these old subscribers. Complain- ant asked for service on the same basis as that given to the old subscribers to the Somerset exchange. HELD, that there was no dissimilarity of circum- stances which justified defendants in preferring one class of subscribers to complainant, and that it had no right to prefer one class of subscribers over others similarly situated, and was un- lawfully granting a preference to the 37 old subscribers; and the fact it had contracts with such subscribers prior to the Commission's being vested with jurisdiction over telephone companies could not except such special contracts from the operation of the law which for- bids undue discrimination and prefer- ences. Shoemaker v. C. «S: P. Telephone Co., 20 I. C. C. 614. (b) A telephone company being a public servant, subject to the provisions of a law that forbids undue preferences and unjust discriminations on any grounds whatsoever, it is manifest that nothing but a difference in the service rendered or in the facilities furnished will justify any difference in the charges exacted. Shoemaker v. C. & P. Tele- phone Co., 20 I. C. C. 614, 621. (c) A difference in telephone charges for the same service is not justified by the fact that lower rates were accorded old subscribers; nothing but a difference in services rendered or facilities fur- nished will justify a difference in rates. Shoemaker v. C. & P. Tel. Co., 20 I. C C. 614, 621. (d) Demanding higher charges of new telephone subscribers than demanded of old subscribers for the same service and facilities may constitute unlawful dis- crimination and preference. Shoemaker V. C. & P. Tel. Co., 20 I. C. C. 614, 621. TERMINAL FACILITIES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. §1/2- Jurisdiction of courts. n. DUTY TO PERFORM TERMINAL SERVICE. §2. In general. §3. Duty to allow use. §4. Publication of terminal charges. §5. Reasonableness of charges. §6. What are public terminals. III. STATUS OF TERMINAL ROADS. §7. In general. §8. Definition of "terminal charges." CROSS REFERENCES. See Allowances, §8 (4); Commodities Clause, 11 (f ) ; Exclusive Contracts; Facilities and Privileges, §16; Rea- sonableness of Rates, §34; Trans- portation, §10. I. CONTROL AND REGULATION. See Switch Tracks and Switching, §7 (o), (p). §1. Jurisdiction of Commission. See Interstate Commerce Commis- sion, §9 (k); Reparation, §21 (j). (a) Where a terminal company is a part of a system of transportation be- tween the states and foreign states it cannot escape the control of the Com- mission on the ground that it is desig- nated as a wharfage company. S. P. Terminal Co. v. I. C. C, 219 U. S. 498, 521, 31 Sup. Ct. 279, 55 L. ed. 310. (b) The Southern Pacific Terminal Co. was created by an act of the legis- lature for the purpose of furnishing ter- minal facilities at the port of Galveston for use in connection with the Southern Pacific Railroad and Steamship Systems. It was controlled through stock owner- ship by the S. P. Co. HELD, the Com- mission had jurisdiction to regulate its charges on trafllc handled in connection with these systems, since the Terminal Co. was a part of these systems and was not merely a distinct wharfage com- pany. S. P. Terminal Co. v. L C. C, 219 834 TERMINAL FACILITIES, §1 (c)— (h) U. S. 498, 521, 31 Sup. Ct. 279, 55 L. ed. 810. (c) One Young obtained the lease of a wharf at Galveston from the S. P. Ter- minal Co., which company was controlled through stock ownership by the S. P. R. R. and S. S. Systems. The cake and meal purchased by Young were bought by him in various states, but chiefly in Texas, and shipped to him on bills of lading and waybills showing the points of origin in those states and the destina- tion at Galveston. The purchases were made for export. His sales to foreign country were sometimes for immediate and sometimes for future delivery, irre- spective of whether he had the product on hand at Galveston. At times, there- fore, orders must be filled on cake to be purchased in the interior or shipped in transit to him. When the cake reached Galveston it was ground into meal and sacked by Young, and new shippers' bills of lading were made out to his order for foreign parts. HELD, the manufacture or concentration on the wharves of the Terminal company were but incidents in the shipment of the product in export trade and the regulation of the Terminal company in the handling of its wharves was within the power of the Interstate Commerce Commission. S P. Terminal Co. V. Int. Com. Comm., 219 U. S. 498, 526, 31 Sup. Ct. Rep. 279, 55 L. ed. 310. (cc) While a common carrier must serve the traveling and the shipping public upon equal terms and without dis- criminations and preferences in under- taking to perform certain duties for those who travel or ship their merchan- dise over its lines, it does not assume any obligation to those who do neither the one nor the other. If any such obli- gation exists they are not to be found in the Act, and are beyond the power of the Commission to enforce or regu- late. To a certain extent the public stations, depots and grounds of carriers are their private property, subject to their own control with respect to any private business, carried on, in or upon them, provided that what is thus done for the public is in itself a reasonable use of the property, and contributes to the public convenience or to the advan- tage of the carrier. Southwestern Prod- uce Distributers v. Wabash R. R. Co., 20 I. C. C. 458, 461. (d) The duty of regulating terminal charges, when relating to traffic between states, has been lodged with the Com- mission. Peale, Peacock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 33. (e) Under sections 1 and 6 of the Act the duty of regulating terminal charges when relating to interstate trans- portation is lodged with the Commission, and a Pennsylvania statute conflicting with these provisions must give way. Wilson Produce Co. v. Penn. R. R. Co., 14 L C. C. 170, 174. (f) The duty of regulating terminal charges, when related to traffic between the states, has been lodged with the In- terstate Commerce Commission. A state statute fixing terminal charges is not controlling, with respect to interstate transportation. Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C 170, 174. (g) Complainant alleged that a lease by the Southern Pacific Terminal Co. to one Young, an exporter of cottonseed products, of a portion of its wharf to Galveston, Tex., gave him undue prefer- ence and advantage and resulted in un- reasonable prejudice to competing ex- porters. The Southern Pacific Co. urged that it is. a holding company, and the Terminal Company that it is a wharfage company, and both asserted that they are not common carriers within the meaning of the Act, and challenged the jurisdiction of the Commission. HELD, that as the railroad and steamship lines forming the so-called Southern Pacific System are one in control and opera- tion, are owned by the Southern Pacific Co., and are identical in officers and interests, and that as the Terminal Co. was organized to furnish terminal fa- cilities for the Southern Pacific System at Galveston, and through shipments on the system line pass and repass over the docks of the Terminal Co., the lat- ter forms a necessary link in the chain of interstate commerce and is subject to the Act. Eichenberg v. S. P. Co., 14 1. C. C. 250, sustained, 219 U. S. 498, 521, 31 Sup. Ct. 279, 55 L. ed. 310. (h) In determining whether a ter- minal company controlling a wharf is a common carrier, it makes no difference that the connecting railway company does not own the terminal company di- rectly, where the ownership of both is vested in the same holding corporation, and since control is an incident of ownership, the terminal company is to be deemed a common carrier. Eichen- TERMINAL FACILITIES, §1 (i)— §3 (c) 835 berg V. S. P. Co., 14 I. C. C. 250, 264, sustained 219 U. S. 498, 521, 31 Sup. Ct, 279, 55 L. ed. 310. ' (i) Where a terminal company is part and parcel of the system engaged as a whole in the transportation of in- terstate commerce, the Commission has jurisdiction to supervise and control it; since to hold otherwise would, in effect, permit carriers generally, through the organization of separate corporations, to exempt all their terminals and terminal facilities from the regulating authority of the Commission. Eichenberg v. S. P. Co., 14 I. C. C. 250, 265, sustained, 219 U. S. 498, 521, 31 Sup. Ct. 279, 55 L. ed. 310. §1^. Jurisdiction of Courts. See Commerce Court, §3 (c), §6 (d), (j), (k): Courts, §9 (k). II. DUTY TO PERFORM TERMINAL SERVICE. §2. In General. See Export Rates and Facilities, 111 (m). (a) Defendant carrier's terminals are located at Jersey City and all shipments made over its lines from across New York Harbor must be lightered to its docks at that point. This service is performed by the defendant without cost to shippers. Complainant found it nec- essary to fill all the orders of its cus- tomers on the day on which they were received, and defendant was unable to furnish barges and boats promptly enough to accomplish this purpose, some- times compelling complainant to wait three or four days. Complainant took the matter of lighterage into its own hands and performed the service on its own boats. It sought to recover 3c per 100 lbs. for this service. Some years after the shipments in question the de- fendant provided in its tariffs for the payment of 3c for this lighterage service when performed for the convenience of defendant, but at the time of shipment no tariff was in effect authorizing de- fendant to pay for lighterage performed by the shipper. HELD, under the facts disclosed, the complainant having per- formed such lighterage service for its own convenience, and to meet the spe- cial requirements of its business, was not entitled to reparation. Barrett Mfg. Co. V. Central R. R. of N. J., 17 I. C. ^. 464, 466. §3. Duty to Allow Use. See Differentials, §6 (d); Facilities and Privileges, §1 (hi), §2 (aa), (r), §16 (c), (d), (e); Special Contracts, §2 (aa), (m), (z), §5 (h); Water Carriers, §3 (e). (a) Section 3 requires every common carrier subject to the provisions of the Act to accord all reasonable, prOper and equal facilities for the interchange of traffic between their respective lines, and provides: "But this shall not be construed as requiring any such com- mon carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." But if car- riers are allowing such use of their tracks or terminal facilities the proviso of section 3 can have no application. Terminals are either open or they are not, and if a carrier holds itself out as ready to permit the use of its tracks at a certain charge, the fact that such charge may be prohibited does not mean that the terminals are not open. On the contrary, it would seem to be a potent argument for the reduction of charges for the use of tracks or terminal fa- cilities already extended. That carriers offer each to the other the use of their respective tracks or terminals is shown by the fact that freight is actually in- terchanged after its arrival at the ter- minal, and for this service charges are provided in tariffs published and filed. It follows that, having elected to per- form this service, the charge therefor must be reasonable. Merchants' & Mfr'rs' Ass'n v. Penn. R. R. Co., 23 I. C. C. 474, 476. (b) The proviso in section 3 of the Act that a carrier shall not be required to give the use of its tracks or terminal facilities to another carrier engaged in like business can have no application where carriers are already allowing such use of their tracks or terminal facilities. Merchants' & Mfrs.' Ass'n v. Penn. R. R. Co., 23 I. C. C. 474, 476. (c) A carrier (the Iron Mountain) whose rails are for the most part con- fined to the bank of the Mississippi River does not furnish adequate terminal facilities for the southern section of in- dustrial St. Louis, containing many in- dustries a considerable distance .from the river, and therefore the facilities furnished by the Manufacturers' Rail- way, organized to serve such industries, are both reasonable and necessary. 836 TERMINAL FACILITIES, §3 (d) — (i) Mfr'rs' Ry. Co. v. St. L. I. M. & S. Ry. Co., 21 L C. C. 304, 309. (d) Carriers cannot spot cars for one industry and refuse to perform the same service for another similarly situated, Buffalo Union Furnace Co. v. L. S. & M. S. Ry. Co., 21 I. C. C. -620, 627. (e) An undue disadvantage resulted from the failure of defendant to accord a terminal switching allowance to com- plainant while granting it to competing industries performing similar services. Buffalo Union Furnace Co. v. L. S. & M. S. Ry. Co., 21 I. C. C. 620, 630. (f) While at common law no obliga- tion rested upon carriers to do or pay for the spotting of cars at any industry, yet a different question is presented . if carriers voluntarily undertake to per- form for some and refuse to perform for others under substantially similar circumstances and conditions. Buffalo Union Furnace Co. v. L. S. & M. S. Ry. Co., 21 I. C. C. 620, 627. (g) At Cleveland, O., and Buffalo, N. Y., various terminal railroads were al- lowed by defendants $2.50 per car when the freight rate was 50c per ton or more, for spotting cars at certain blast fur- naces. No allowance for this service was made by defendants to the Buffalo Union Terminal Railroad, a terminal railway serving the Buffalo Union Fur- nace Co. at Buffalo, N. Y. HELD, that while at common law no obligation rested upon defendant carriers to do or pay for the spotting of cars at any of the furnaces mentioned, yet a different question is presented if the carriers vol- untarily undertake to perform for some and refuse to perform for others the same service under substantially similar circumstances and conditions; that the Buffalo Union Furnace Co. should be placed on an equality with other fur- naces. Reparation awarded. Buffalo Union Furnace Co. v. L. S. & M. S. Ry. Co., 21 I. C. C. 620, 627, 630. (h) Complainant is engaged in the city of Baltimore in conducting an abat- toir for slaughtering live stock. It owns a sidetrack connecting its plant with the P. B. & W. R. R., a part of the Penn. R. R. This sidetrack has been in existence 20 years and been used for the delivery of all classes of freight except live stock. In 1891 the Union Stock Yards Co. was organized, which took over the business of the Calverton and Claremont Stock Yard in Baltimore. Prior to that the complainant had estab- lished its plant on a piece of land pur- chased from the Claremont Co. and ad- jacent thereto. The consolidated com- pany had yards situated about two miles from the yard of complainant. The de- fendants entered into a contract with the Union Stock Yards whereby they agreed to make "the said stock yards their live stock depot for Baltimore and vicinity and shall deliver at said yard all the live stock which may be trans- ported over their line ♦ ♦ * des- tined to the Baltimore market * * *." Defendants claim they had a right to agree to deliver at one stock yards ex- clusively in Baltimore. Complainant's live stock was unloaded at the Union Stock Yards and then driven through the streets of Baltimore by complainant two miles to their yard, at considerable expense and annoyance. Shipments by complainant and a tenant of it over the sidetrack was from 50 to 60 carloads a year. If live stock was delivered at its yards complainants estimate it would receive 15 carloads a week. HELD, the refusal of defendants to deliver to the sidetrack of complainant live stock con- signed thereto is unreasonable and a violation of the law. Ordered that such delivery be hereafter made. Baltimore Butchers' Live Stock Co. v. P. B. & W. R. R. Co., 20 I. C. C. 124. (i) Defendants made an exclusive contract to deliVer live stock to the Union Stock Yards of Baltimore, al- though complainant had its own side- track, and had shipped to it weekly car- loads of live stock, but defendants re- fused to deliver to other than the Union Stock Yards, on account of the exclu- sive contract. HELD, railroads may not make contracts which abrogate the Act to Regulate Commerce; they may not refuse, because of their own contract, to furnish a delivery that is reasonable upon tracks which they use, as a ter- minal for complainant; they may not discriminate as between commodities in the delivery which they give where no reason exists for such discrimination ex- cepting the presence of a contract made with a private cori>oration, as in this case. The amended Act to Regulate Com- merce provides that it is the "duty of all common carriers to establish, observe and enforce just and reasonable regu- lations and practices affecting all mat- ters relating to or connected with the TERMINAL FACILITIES, §3 (j)— §4 (a) 837 receiving, handling, transporting, storing and delivery of property." Baltimore Butchers' Live Stock Co. v. P. B. & W. R. R. Co., 20 L C. C. 124, 128. (j) Defendant granted the exclusive right to a company to conduct its busi- ness as an auctioneer of fruit and vege- tables on its terminal premises at St. Louis. Complainant, a rival company, asked for the same facilities. HELD, that the granting of the exclusive right to maintain a fruit auction company was somewhat analogous to the station restaurant, news stand, barber shop and other conveniences which travelers ar- riving at a station may make use of if they so desire. They are enterprises that outsiders are frequently permitted to engage in at railroad terminals, not as a part of the service that the carrier renders to the public, but as something that adds to the general convenience of the public. The telegraph, telephone, transfer and cab offices ordinarily found in passenger stations rest upon the same basis. They add to the convenience of the passenger before the transporta- tion by the carrier has commenced or after it has been completed without add- ing to the service undertaken by the carrier for the traveler under its pub- lished rates. It is a matter that is wholly outside and apart from the serv- ice of transportation performed by de- fendant, and is a reasonable use for the defendant to make of its property. Com- plaint dismissed. Southwestern Produce Distributers v. Wabash R. R. Co., 20 I. C. C. 458, 460, 462. (k) Defendants carry a rule in their tariffs that shipments of lumber to New York may be consigned "New York light- erage free;" and that upon arrival of cars the consignee shall specify a par- ticular lighterage destination, and upon the arrival of the lighter at such desti- nation provide a dock berth for such lighter. Complainant, who had lumber delivered at Wallabout Basin, was as- sessed demurrage charges whenever the pier he designated for delivery was occu- pied, thus compelling the lighter to tie up to another boat, and wait until a berth was made. The public berths with- in the free lighterage limits of New York are 329 in number, and about 3,600 boats, excluding steamers and schooners, are engaged in making deliveries with in the harbor. HELD, if the obligation were imposed upon the carrier to find a berth before the free time began to run against the consignee it would be possible for consignees who desired stor- age of their shipment to regularly desig- nate the more congested piers, and thereby obtain the use of the carrier's equipment. The present practice of consigning lumber "New York lighterage free" is of value to the consignee in that it enables him to find a purchaser while the car is en route or before ulti- mate delivery. On account of the natu- ral congestion of the New York harbor and the extent of the free delivery lim- its, the regulations of the defendant must be held reasonable, and defendants not required, when a designated pier is occupied, to deliver to an adjacent wharf. Mosson Co. v. Penn. R. R. Co., 19 I. C. C. 30. (1) In this country the railroads have recognized by universal custom that it is but fair, where their team tracks are not used, to give delivery without ex- tra charge at an industry track as equivalent service, although where the shipper provides tracks, land and facil- ities the mere switching furnished by the carrier is in many cases by no means equivalent in cost to the expense attaching to delivery upon its own tracks. Associated Jobbers of Los An- geles V. A. T. & S. F. Ry. Co., 18 I. C. C. 310, 316. (m) The carrier must hold itself impartially as between shippers and give to each equal terminal facilities and service. Enterprise Fuel Co. v. Penn. R. R. Co., 16 I. C. C. 219, 224. §4. Publication of Terminal Charges. See Demurrage, §11 (b), (c) ; Tariffs, II, §4 (d), (1). (a) Although a terminal charge col- lected by a carrier for services rendered by another line when just and reason- able cannot be condemned on the ground that when coupled with the car- riers' rates for transportation the total charge is unreasonable, another carrier in order to avail itself of the benefit of this rule must separately state its terminal or other special charge com- plained of, for if many matters are lumped in a single charge it is impos- sible for either the shipper or the Com- mission to determine how much of the lump charge is for the terminal or spe- cial services. I. C. C. v. Stickney, 215 U. S. 98, 105, 30 Sup. Ct. 66, 54 L. ed. 112. 838 TERMINAL FACILITIES, §4 (b)— §7 (c) (b) Carriers are not required to state separately in their tariffs their terminal charges in connection with shipside delivery. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 424. (c) Services of loading and unload- ing and charges therefor are analogous to other terminal charges and must be pub- lished. Schultz-Hansen Co. v. S. P. Co., 18 L C. C. 234, 237. §5. Reasonableness of Charges. See Reasonableness of Rates, §28 (p), §60 (a). (a) For services that a carrier may render or procure to be rendered off its own line, or outside the mere matter of transportation over its own line, it may charge and receive compensation. If a terminal charge be in and of it- self just and reasonable it cannot be condemned or the carrier required to change it on the ground that it, taken with prior charges of transportation over the lines of the carrier or of con- necting carriers, makes the total charge to the shipper unreasonable. That which must be corrected and condemned is not the just and reasonable terminal charge, but those prior charges which must of themselves be unreasonable in order to make the aggregate of the charge from the point of shipment to that ol delivery unreasonable and un- just. I. C. C. V. Stickney, 215 U. S. 98, 105, 109, 30 Sup. Ct. 66, 54 L. ed. 112. (b) A carrier is •under no obligations to charge for terminal services. Busi- ness interests may justify it in waiving any such charge, and it will be con- sidered therefore to have waived it un- less it makes plain to both the shipper and the Commission that it is insisting upon it. I. C. C. V. Stickney, 215 U. S. 98, 105, 30 Sup. Ct. 66, 54 L. ed. 112. §6. What Are Public Terminals. See Export Rates and Facilities, III (b); Switch Tracks and Switching, §4 (g), §7 (d). (a) Railroads may secure and main- tain freight depots by contract with in- dependent concerns, and such depots thereby become legally and to all in- tents and purposes the freight depots of the railroads. Federal Sugar Refin- ing Co. V. B. & O. R. R. Co., 17 I. C. C. 40, 47. Ml. STATUS OF TERMINAL ROADS. §7. In General. (a) The fact that the stock of the Union Stock Yards Co., an independent corporation and terminal company at Chicago, is owned by the several rail- road companies entering into Chicago does not make its line or property part of the lines or property of the separate railroad companies with respect to the question of the reasonableness of the terminal charges imposed by it. I, C. C. V. Stickney, 215 U. S. 98, 108, 30 Sup. Ct. 66, 54 L. ed. 112. (b) The Northern Pacific terminal lines are for all practical purposes a part of the railroad of each of the three companies owning it. Portland Lumber Co. V. O.-W. R. R. & N. Co., 21 I. C. C. 292, 294. (c) The Manufacturers Railway Co. of St. Louis, Mo., and a number of shippers located on its lines asked that through routes be established to and from points on its lines of railway in St. Louis, Mo., from and to points on the lines of each of the defendant rail- way companies and points beyond; also for the fixing of reasonable divisions or absorptions out of the St. Louis rates to be paid to the Manufacturers Rail- way Co. for terminal services rendered by it and for reparation. This company was incorporated in 1887 to furnish ter- minal facilities for the southern section of industrial St, Louis, which, owing to the physical conditions existing there, seem both reasonable and necessary. The Terminal Railroad Association domi- nates entirely the terminal facilities of St. Louis, and the stock of this com- pany is owned equally by the fourteen carriers running into that city. The only terminal fj^cilities in the southern section are furnished by the Manufac- turers Railway and by the lines of the St. L. I. M. & S. R. R. The latter's tracks, however, follow the bank of the Mississippi River and reach such indus- tries as are adjacent thereto. For a con- siderable distance along the river there is a steep grade to be overcome in reaching industries back from the river, and it was to afford service to these that the Manufacturers Railway was constructed. The Manufacturers Rail- way leased its tracks to the St. L. I. M. & S. R. R. until 1908, since when it was operated independently. The majority of its stock is owned by the Anheuser- TERMINAL FACILITIES, §7 (d)— §8 (a) 839 Busch Brewing Ass'n. For the year end- ing April 30, 1910, it handled 42,970 cars, of which 37,546 cars were handled for the Brewing Association and 5,424 cars were handled for some 87 other in- dustries or patrons, of which 35 shipped or received 10 cars or more. The traffic of the Brewing Association constitutes one-thirtieth of the total traffic of St. Louis. The complainant operates about 20 miles of track, of which 2^^ miles are classed as main track, and the re- mainder as sidetrack, switches and yard track. Of this total, six miles are leased from the Brewing Association and are used in part both for the services of the brewery and the public. The only physical connection other than that with the St. L. I. M. & S. R. R. is with the St. Louis Transfef Co., one of the con- stituent properties of the Terminal Rail- road Association. Two-thirds of the track of the Manufacturers Railway has been constructed solely for the purpose of serving the public, while the remaining one-third is used in serving both the brewery and the public. Prior to March 1, 1910, there existed through routes and joint rates over the lines of defendant carriers and complainant car- rier to and from points on the line of the complainant company. Since that date the defendants declined to absorb the charges for the services of the Manufacturers Railway. While the Manu- facturers Railway was operated by the St. L. I. M. & S. R. R. during 21 years, and also when operated under the tar- iffs which permitted an allowance to the Manufacturers Railway itself, in 1909, until March 1, 1910, delivery has been made to the public served by it at the St. Louis rates. HELD, in view of all the facts, circumstances and conditions bearing upon the question, there is no doubt that the Manufacturers Railway Co. is in fact a common carrier at common law, notwithstanding any modi- fication thereof, and therefore within the provisions of the first section of the Act to Regulate Commerce, and that the payment to it of a reasonable and just portion of the St. Louis rates for the terminal services rendered by it is not unlawful, and that it is not a mere plant facility. FURTHER HELD, that the action of defendants in canceling the divisions and absorptions with the Manufacturers Railway, which have been for many years included in the St. Louis rates, has subjected complainant shippers and a considerable portion of the public of South St. Louis to the pay- ment of unjust and unreasonable trans- portation charges, and to undue discrimi- nation and disadvantage. Question of what are reasonable divisions and the reparation to be awarded reserved for further investigation. (Lane, Comm'r, concurring opinion; Harlan, Comm'r, dis- senting.) Manufacturing Ry. Co. v. St. L., I. M. & S. Ry. Co., 21 L C. C. 304. (d) The contention that inasmuch as a terminal company operating in Gal- veston, Tex., is not owned by the rail- road company with which the track on its dock connect, it cannot be held to be a part of that or any other railroad is rejected. It makes no difference whether or not the connecting railroad company owns the terminal company if the ownership of both is vested in the same corporation, especially where it appears that the interests and offi- cers of the railroad and steamship lines of the system transporting shipments to and from Galveston are identical. Eich- enberg v. S. P. Co., 14 L C. C. 250, 164; sustained 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. (e) Where a terminal company holds land granted to be used for wharfage purposes by the general public, and is given charter power to lease and con- vey its warehouse, docks and wharves, such power cannot be exerted to divert the land granted from a public to a private use. Eichenberg v. S. P. Co., 14 I. C. C. 250, 267; sustained, 219 U. S. 498, 31 Sup. Ct. 279, 55 L ed. 310. (f) Where a terminal company exe- cutes to a shipper an instrument pur- porting to be a lease of a portion of a wharf but the shipper is to receive the revenue arising from the use of the tracks on the dock and is not to pay for switching cars upon such tracks, it is doubtful whether the instrument is in any proper sense a lease of the premises. Eichenberg v. S. P. Co., 14 I. C. C. 250, 267; sustained, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. §8. Definition of "Terminal Charges." (a) "Terminal charges," as used in section 6, refers to the American metn- od of making rates, and comprehends services rendered after delivery. As- sociated Jobbers of Los Angeles v. A. T. & S. F. Ry. Co., 18 L C. C. 310, 315. 840 THROUGH ROUTES AND JOINT RATES, §1 (a) — (f) THROUGH ROUTES AND JOINT RATES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. §2. What is through route or "common arrangement." §3. What is joint rate. §35/2. Participation in through traffic. II. ESTABLISHMENT BY CARRIER. §4. In general. §5. Dispute over divisions. §6. Circuitous routes. §7. Obligation to carry, §8. Relation of similar points. §9. Right to favor own line. §10. Stc'^us of intermediate car- rier. §11. What is satisfactory through route. (1) In general. (2) When through route ordered or denied. III. BILLS OF LADING. §12. Issuance in general. IV. REASONABLENESS OF THROUGH RATES. §13. In general. §14. Divisions. §15. Exceeding combinations of intermediates. §t6. Reparation. V. TARIFFS AND CONSTRUCTION. §17. In general. §18. Application of proportional rate. §19. Breaking transit. §20. Change in rate while ship- ment at transit point. §21. Intermediate clause. §22. What is legal rate. §23. Procedure. CROSS REFERENCES. See Differentials, §4; Electric Lines, II; Foreign Commerce; Passenger Fares and Facilities, §14; Routing and IVIisrouting; Water Carriers. I. CONTROL AND REGULATION. See Courts, §3 (b) ; Crimes, §1 (b), §2 (d). §1. Jurisdiction of Commission. See Advanced Rates, §1 (1) (e) ; Ex- press Companies, §1 (d); Interstate Commerce Commission, §2 (g), §9 (m); Passenger Fares and Facili- ties, §1 (e): Procedure Before Com- mission, §13 (I); Reasonableness of Rates, §3 (u) ; Routing and Mis- routing, §1 (c). (a) Under the amendment of June 29, 1906, the Commission has jurisdic- tion over a complaint demanding a filing with the Commission and publishing of rates for transportation of passengers and property between points in Alaska and points in the Dominion of Canada and other places, and the establishment of through routes and joint rates be- tween points in Alaska and points in the state of Washington, said amend- ment having superseded the authority conferred upon the Secretary of Interior by section 2 of the Act of May 14, 1898. I. C. C. V. H. S. S. Co., 224 U. S. 474, 483, 32 Sup. Ct. 556, 56 L. ed. 849. (b) The Commission is expressly empowered to determine the reasonable- ness of any part or the aggregate of charges for interstate transportation and to establish joint rates. Sunderland Bros. Co. V. St. L. & S. F. R. R. Co., 23 L C. C. 259, 261. (c) It is not clear that the Commis- sion has jurisdiction to deal with divi- sions under a rate not fixed by the Commission, but that question is not decided. In Re Wharfage Charges at Galveston, 23 I. C. C. 535, 546. (d) The statute provides that in es- tablishing joint rates and through routes, each carrier against which the order is made shall be given the benefit of the long haul by its own line "unless to do so would make such through route unreasonably long as compared with another practicable through route which could otherwise be estab- lished." The Commission cannot there- fore establish in every case a through route and a jo.int rate, but must work under the limitation imposed by the Act of Congress as above set forth. In Re Investigation of Alleged Un- reasonable Rates on Meats, 23 I. C. C. 656, 662. (e) Carriers are required under sec- tion 1 to make reasonable rules and regulations with respect to the inter- change, exchange and return of cars used upon through routes and for operation of such through routes, and where they have failed in this respect the Commis- sion is empowered by section 15 to determine the individual or joint regu- lation or practice that is just, fair and reasonable. Missouri & Illinois Coal Co. V. I. C. R. R. Co., 22 I. C. C. 39, 49. (f) The Commission may after hear- ing establish through routes and joint classifications and rates, when one of THROUGH ROUTES AND JOINT RATES, §1 (g)— (m) 841 the connecting carriers is a water line, but not when the transportation is wholly by water. (Lane, Comm'r, concur- ring opinion.) In Re Transportation by C. & O. Ry. Co., 21 I. C. C. 207, 209. (g) With respect to the transporta- tion of persons and property by rail, the Act has not undertaken to specify in terms what shall for the purpose of that statute be considered to be a common carrier, but has proceeded upon the foundation of the common law as to public callings. It is not therefore within the authority of the Commission to pronounce any carrier by raii not to be in fact or in law a common carrier, if by the tests and principles cf the common law, coupled with such require- ments as may have b€en imposed by constitutional or legislative authority, it would be held to be such. The right of such a carrier to participate in through routes and joint rates and saare in the earnings of such rates with others is a wholly different question and one clearly within the purview of the stat- ute and under the jurisdiction and con- trol of the Commission, as exp.-essly provided in the Act. The purpose of the Act in this respect must be ful- filled by action appropriate lo \he end in view, and at the same time effective to prevent unjust discrimination in any form, enforcing reasonable requirements and limitations in respect to the es- tablishment of through routes and jomt rates, and the sharing of the earnings thereunder, consistently with all other provisions of the statute, in such man- ner as will result in substantial justice to all the parties in interest and the observance of the standards of the law in the public interest. Mfr'rs Ry. Co. V. St. L. I. M. & S. Ry. Co., 21 I. C. C. 304, 312, 313. (h) Formerly the Commission under section 15 had authority, after hearing on a complaint, to establish through routes and maximum joint rates hnd to prescribe the divisions thereof, "provided no reasonable or satisfactory through route" existed. In the amendment of June 18, 1910, this limitation was omit- ted. As the section now reads the only limitations on the authority of the Com- mission to establish through routes and joint rates that are pertinent in this case are: (a) It may not require any railroad involuntarily to embrace in a through route substantially less than the entire length of its road between the termini of the proposed through route. (b) It may not establish through routes and joint rates between a steam railroad and a street electric passenger railway that does not transport fT-eight in addition to its passenger and express business. The first of these limitations must be observed in all cases. C. & C. Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 490; order of Commis- sion enjoined, B. & O. S. W. R. R. Co. v. U. S., 195 Fed. 962. (i) The Commission's power to re- quire the institution of through routes and joint rates is expressly condition^-d upon there being no reasonable or satis- factory through route in existence. Southern California Sugar Co. v. S. P. L. A. & S. L. R. R. Co., 19 I. C. C. 6, 10. (j) The Commission cannot estab- lish a through route and joint rate where a reasonable or satisfactory through route and joint rate already exist. Spring Hill Coal Co. v. Erie R. R. Co., 18 I. C. C. 508, 509. (k) The law does not require the Commission in all cases where no through route and joint rate exists to establish a route and fix a rate appli- cable thereto, but only empowers it to do so in a proper case for the pur- pose of giving effect to the Act. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. 225, 228. (1) Where an intermediate carrier participates in a shipment without filing its concurrence to the through rate, the Commission is not ousted of jurisdiction to pass upon the reasonableness of the through rate and to award reparation. Kindelon v. S. P. Co., 17 I. C. C. 251, 266. (m) While at common law a com- mon carrier may not have been com- pelled to accord traffic coming off the rails of other carriers and not originat- ing on its own lines the necessary fa- cilties for through movement, under the Act, as amended June 29, 1906, this is no longer the law with regard to inter- state carriers. The only limitation placed upon the exercise of the power of the Commission to establish a through route is where there is already a rea- sonable or satisfactory through route in existence, and the question as to whether or not an existing through route is rea- 842 THROUGH ROUTES AND JOINT RATES, §1 (n)— §2 (a) sonable or satisfactory is one of fact for the determination of the Commission. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 17 I. C. C. 479, 480. (n) The Commission has no authority to establish a rate in Mexico, nor to order the maintenance of a future rate from points in the United States to points in Mexico, but it may require American carriers to discontinue apply- ing a joint through rate, and, where such a rate has been voluntarily main- tained, may inquire into its reasonable- ness and award damages. Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, 590. (o) The Commission may establish a through route and joint rate, provided no reasonable or satisfactory through route exists. Enterprise Fuel Co v. Penn. R. R. Co., 16 I. C. C. 219, 220. (p) The first section gives the ship- per a right to a through route and a reasonable rate, but the rate open to him need not be a j int rate, and the mere fact that no joint rate already exists does not lay upon the Commis- sion any absolute requirement to es- tablish one. Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co., (Prouty, Comm'r, concurring opinion.) 15 I. C. C. 460, 467. (q) The Commission has power to establish a through route. Pacific Coast Lumber Co. v. N. P. Ry. Co., 14 I. C. C. 51, 53. (r) The Commission is allowed to establish a through route and a joint rate only when the carriers themselves have neglected to provide a reasonable and satisfactory one. Pacific Coast Lumber Mfrs.' Ass'n v. N. P. Ry. Co., 14 I. C. C. 51, 53. (s) With respect to the authority of the Commission to order through routes and joint rates the Act makes no discrimination between railroads that are operated by electricity and those that use steam. Both are subject to the Act when engaged in the inter- state transportation and are entitled to equal consideration in any contro- versy. The progress in the science of electricity and the rapid increase of new devices for its application have led many practical railroad men to think that we may be measurably near its general use as the chief motive power in transportation. Chicago & Milwaukee Electric R. R. Co. v. I. C. R. R. Co., 13 L C. C. 20, 27. (t) Section 1 of the Act requiring carriers to establish routes and just and reasonable rates applicable thereto must be read in connection with sec- tion 15, under which latter section the Commission cannot grant relief when a reasonable or satisfactory route or rate exists. Cardiff Coal Co. v. C. M. & St. P. Ry. Co., 13 I. C. C. 460, 466. (u) Coal was carried from points in Arkansas over the K. C. S. Ry. to Dodson, Mo., a point formerly outside Kansas City, and thence over defend- ant Westport Belt Ry. from Dodson to Westport, a point within the limits of Kansas City. The shipping receipt speci- fied Westport as the ultimate destina- tion. The car was waybilled by the K. C. S. Ry. to Dodson, transported to that point and there placed upon side tracks, from which it was taken with- out further instructions by the Belt Railway and carried to Westport. Com- plainant consignee at Westport paid the K. C. S. Ry. its full rate to Dodson and the Belt Railway its full rate of 20c per ton for the haul from Dodson to Westport. HELD, defendant Belt Rail- way in said shipments was engaged in interstate commerce and was subject to the jurisdiction of the Commission with respect to through routes and joint rates. A movement from a point in one state to a point in another is to be treated as an entirety and cannot be split up into separate movements for the purpose of exempting one of the carriers operating wholly between points within a state from the regulations of interstate commerce. Leonard v. K. C. S. Ry. Co. and K. C. & Westport Belt Ry. Co., 13 L C. C 573, 579. §2. What is Through Route or "Com- mon Arrangement." •See Supra, §1 (I); Infra, §11 (1) (a), §16 (g), §17 (b), §22 (b), (c), (d), (f), (h), (i); Absorption of Charges, §1 (a); Allowances, §8 (4) (c); Crimes, §11; Interstate Com- merce, §3 (f) (i); Proportional Rates, §1 (b); Reparation, §19 (c); Routing and IVIisrouting, §4 (aaa); Tariffs, §4 (x), §10. (a) The phrase "common arrange- ment" means an agreement or under- standing between connecting carriers with respect to the transportation of merchandise and the charges and divi- THROUGH ROUTES AND JOINT RATES, §2 (b)— (1) 843 sions to be made therefor. Mutual Transit Co. v. U. S., 178 Fed. 664, 666. (b) Defendant steamship company operated on the Great Lakes from Buf- falo, N. Y., to West Superior, Wis. It contracted with a shipper to protect a rate of 45c on iron from Emaus, Pa., to Winnipeg, Manitoba. The rate published by the initial and delivering rail car- riers was 491/^c. Defendants did not concur in such rate. The rail carriers were not informed of the agreement between the shipper and defendant for the 45c rate and the bills of lading, shipping receipts and the other docu- ments called for a rate of 49i^c and specitled the divisions which defendants, the initial and delivering carriers, were to receive, which rate was collected. Defendant rebated the difference be- tween the 49i/4c and the 45c rates. No proof was offered of any further under- standing or arrangement between de- fendant and the other rail carriers. HELD, defendant, carrying wholly by water, was not shown to have entered into a "common arrangement" with the rail carriers so as to make it subject to the Act, and could not be convicted of rebating under the Elkins Act. Mut- ual Transit Co. v. U. S., 178 Fed. 664, 667. (c) A mere agreement by an inde- pendent water carrier to accept freight from a connecting railroad and to transport it for its own particular rate, may be an "arrangement" for continu- ous carriage, but it is not a "common arrangement" within the meaning of the Act. Mutual Transit Co. v. U. S., 178 Fed. 664, 667. (d) In the concert of action, in the successive receipt and movement of the traffic by the connecting carriers under through bills of lading for continuous carriage, is manifested the "common ar- rangement" contemplated by the Act of Congress. No previous formal con- tract is necessary. C. B. & Q. Ry. Co. V. U. S., 157 Fed. 831, 833. (e) By failing to establish or concur in a joint through rate for traffic ac- cepted for interstate transportation, each participating carrier impliedly asserts that the rate which it has duly estab- lished, published and filed for its own line shall be a component part of the through rate to be charged. C. B. & Q. Ry. Co. V. U. S., 157 Fed. 831, 833. (f) Where passengers are transported by continuous carriage over the lines of several interurban railways between interstate points, a through route exists over which passengers are actually transported by continuous carriage, and the fact that through tickets are not used, or joint rates or fares may not be in force, does not prove that the transportation is not interstate in char- acter. Citizens of Somerset v. Wash- ington Ry. & Electric Co., 22 I. C. C. 187, 191. (g) Shipments of flour were accepted by defendants for transportation from Hays, Kan., to South Tacoma, Wash., and bills of lading were issued for the through movement from point of origin to point of desired destination, and shipments were duly transported in accordance therewith. HELD, it cannot be said that there was no through route in effect, and under the circumstances the prayer of the complaint for the establishment of a through route is denied. Kenworthy & Son v. U. P. R. R. Co., 21 I. C. C. 515, 517. (h) Carriers engaged in a through route in law constitute one line. R. R. Commission of Nev. v. S. P. Co., 19 I. C. C. 238, 252. (i) A shipment sent through to des- tination without the intervention of the shipper at junctions moves on a through route. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 L C. C. 225, 226. (j) A rate formed by a combination of separate rates over connecting lines has every substantial feature of a through rate, and separately established rates over a through route are expressly recognized in section 6 of the Act. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. 225, 228. (k) When traffic from two territories served by different lines is carried to a point on a common connecting line under joint rates published in a single tariff to which all three lines are par- ties, a through line or group of lines is formed which serves both territories and makes discrimination possible. In- diana Steel & Wire Co. v. C. R. L & P. Ry. Co., 16 I. C. C. 155. (1) The D. & R. G. R. R., the deliv- ering line on shipments from St. Louis, Mo., to Leadville, Colo., advanced to the M. P. Ry. the full amount of its charges 844 THROUGH ROUTES AND JOINT RATES, §2 (m)— §4 (a) and collected the same from the con- signee. These facts, together with other facts of record, constitute an arrange- ment which clearly brings the trans- portation within the scope of the Act. Nollenberger v. M. P. Ry. Co., 15 I. C. C. 595, 598. (m) A through route is a continuous line formed by agreement, express or implied, between connecting carriers over which shipments are to be made, and all services in connection therewith from origin to destination must be per- formed by said carriers at their lawfully established rates applicable thereto. The service must be continuous for every part of the journey over the continuous line. When a through rate is estab- lished the shipper should not be called upon at any point therein to assume possession or control of his shipment or do any service in forwarding it to its final destination, such as loading and unloading in transit, although carriers may provide for unloading and trans- ferring at stated junction points as a part of the through service if their tariffs also specify the kind of service required in transferring at such points and the separate rates and charges to be exacted therefor. Memphis Freight Bureau v. F. S. & W. R. R. Co., 13 I. C. C. 1, 8. (n) A shipment reconsigned before arrival at the original point of distribu- tion constitutes a through movement. Miller & Co. v. G. H. & S. A. Ry. Co., Unrep. Op. 249. (o) The voluntary making of new rates constitutes a common control, management or arrangement for a con- tinuous carriage or shipment. Pitts- burgh, etc., Ry. Co. V. Mitchell (Ind. 1910), 91 N. E. 735, 740. (p) Section 1 of the Interstate Com- merce Act as amended June 29, 1906, provides "that the provisions of this Act shall apply to any common carrier or carriers engaged in the transporta- tion of passengers or property wholly by railroad (or partly by railroad and partly by water, when both are used under a common control, management or arrangement for a continuous car- riage or shipment) and also to the transportation in like manner of prop- erty shipped from a foreign country to any place in the United States or an adjacent foreign country." Section 2 of the Act requires the filing and post- ing of charges for transportation be- tween points on the line of the carrier and points on the route of any other carrier (by railroad, by pipe line or by water, when a through route and joint rate have been established). Defendant Great Northern Ry. Co. established a rate of 85c on canned goods from Stav- anger, Norway, to Seattle, Wash., with the provision that it was to receive 75c for its portion of the haul and if the best ocean rate should make the total charge exceed 85c, the charge for the entire haul was to be 75c plus the best ocean rate obtainable. HELD, the shipment covered by such rate was subject to the Interstate Commerce Act. Fisher v. G. N. Ry. Co., 49 Wash. 205, 209, 95 P. 77. §3. What Is Joint Rate. (a) The "joint rate" referred to in section 6 of the Act relating to the publishing of rates does not apply to the combined rates on shipments from United States inland points through Atlantic ports via ocean carriers to European points, since the Commission has no jurisdiction over ocean carriers. To permit the making of joint rates, in the strict sense used in the section be- tween such points, would open the way for rebates and other discriminatory prac- tices, since in publishing a joint rate under section 6 the carriers are not compelled to publish their divisions of the same and by a manipulation of divisions the ocean carriers might ob- tain an inequitable portion thereof wherewith to "induce" traffic. The rail carriers must, therefore, on such traffic publish their rates from inland points to Atlantic ports. Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I. C. C. 266, 280. §3'/2. Participation in Through Traffic. See Act to Regulate Commerce, II (f). II. ESTABLISHMENT BY CARRIER. §4. In General. See Branch Lines, §2 (i); Discrimina- tion, §7 (w), (z); Evidence, §20 (o) ; Reconsignment, §1 (a). (a) The Act imposes upon common carriers subject to its provisions the duty of establishing in a prescribed mode the rates, whether individual or joint, to be charged for the transporta- THROUGH ROUTES AND JOINT RATES, §4 (b)— §5 (d) 845 tion in interstate commerce of property over their lines; the rates so estab- lished are obligatory upon carrier tuiu shipper and must be strictly observed by both until changed in the mode pre- scribed. U. S. V. Miller, 223 U. S. 599, G02, 32 Sup. Ct. 323, 56 L. ed. 568. (b) Undue preference results from failure to establish through routes and joint rates to complainant's mines which are reached by industrial lines. Ston- €ga Coke & Coal Co. v. L. & N. R. R. Co., 23 I. C. C. 17, 26. (c) A carrier cannot impose an un- reasonably high local rate upon any community because it enjoys low in- bound rates. R. R. Comm. of La. v. St. L. S. W. Ry. Co., 23 I. C. C. 31, 34. (d) When conditions admit, rates should be established from the larger grain markets, applicable to all grain handled at and shipped from the market, irrespective of its point of origin. Southern Illinois Millers' Ass'n v. G. H. & S. A. Ry. Co., 23 I. C. C. 512, 513. (e) Where the withdrawal of a joint through rate via a certain route left a higher combination in effect, and the carrier cannot justify the increase, through routes and joint rates will be ordered to be established. In Re Ad- vances on Coal, 23 I. C. C. 618. (f) Where application is made to have a rate constructed through one gateway rather than via the present gateway, it is not enough to show that in miles the distance is less via the proposed route; it must be shown that the cost of transportation is less, or rather, that the combination of rates is less as estimated by the general level of rates in the territory involved. In Re Advances on Meats and Packing- house Products, 23 I. C. C. 656, 669. (g) The commerce of the country is regarded as national, not local, and the railroads are required to serve the routes which they have established, or which they may have been required to establish, in connection with other car- riers, without respect to the fact that this may carry their equipment beyond their own lines. Missouri & Illinois Coal Co. V. I. C. R. R. Co., 22 I. C. C. 39, 44. (h) The full burden of the obligation to establish through routes, furnish the necessary facilities for transportation and make reasonable and proper rules of practice as between themselves and the shippers, rests in the first instance upon the carriers. Missouri & Illinois Coal Co. V. I. C. R. R. Co., 22 I. C. C. 39, 46.. (i) Through rates should not be con- structed by using the full combination. Bluefield Shippers' Ass'n v. N. & W. Ry. Co., 22 I. C. C. 519, 532. (j) A road is built and operated as a whole and local rates are not to be made with reference to difficulties of each particular portion, heavy grades and tunnels add to cost of operation. Traffic Bureau of Merchants' Exchange of San Francisco v. S. P. Co., 19 I. C. C. 259, 261. (k) Divisions are not essential to legalize a joint rate. Germain Co. v. N. O. & N. E. R. R. Co., 17 I. C. C. 22, 24. (1) A joint rate having been can- celed, and no evidence having been offered tending to show the combination rate unreasonable, reparation will be denied. Isbell-Brown Co. v. L. S. & M. S. Ry. Co., Unrep. Op. 231. (m) Volume of business may not be sufficient to justify carriers in maintain- ing through service. Hamilton v. Amer- ican Express Co., Unrep. Op. 355. §5. Dispute Over Divisions. See Divisions, §4. (a) Joint through rates, canceled be- cause of disagreement over divisions, ordered to be established. Chamber of Commerce of Newport News v. S. Ry. Co., 23 I. C. C. 345, 356. (b) A through rate regularly pub- lished between two points and available under the tariff over several different routes is not nullified as to one such route by failure of participating carriers to agree upon divisions over that route. Germain Co. v. N. O. & N. E. R. R. Co., 17 I. C. C. 22, 24. (c) Unwillingness to divide revenue on traffic originating off line that de- fendant could originate on its line un- tenable as a reason for the withdrawal of joint rates. Delray Salt Co. v. C. St. P. M. & O. Ry. Co., 16 I. C. C. 507, 511. (d) Establishment of through routes ought not to be delayed by any disagree- 846 THROUGH ROUTES AND JOINT RATES, §5 (e)— §8 (a) ment among carriers with respect to divisions. Celina Mill & Elevator Co. v. St. L. S. W. Ry. Co., 15 I. C. C. 138, 142. (e) Formerly one joint route from Ashland, Tex., to Nash, Okla., was in effect via Winsboro and Oklahoma City, and another via Marshall, Ft. Worth and Purcell, with a rate of 28i^c over each route upon lumber, lath and shingles. This rate was canceled over both routes, the reason being the inability of defend- ants to agree on divisions. No other satisfactory through route or joint rate existed between the points in question. HELD, a through route with a joint rate of 28i^c should be established over the second route. Gentry v. A. T. & S. F. Ry. Co., 13 I. C. C. 171, 172. §6. Circuitous Routes. See Advanced Rates, §18 (8); Dis- crimination, §3 (ee); Reasonable- ness of Rates, §103 (a). (a) In transporting live animals, al- most any additional length of haul renders the route unduly circuitous and justifies the Commission in establish- ing a joint rate over the direct line even when a two-line haul is involved. In Re Advances on Meats and Packing- house Products, 23 I. C. C. 656, 662. (b) Distance is an important element in determining whether a routing is sat- isfactory, since a circuitous route involv- ing a longer haul acd therefore greater delay would not be, ordinarily, as desir- able as a direct one. Pacific Coast Lumber Mfrs.' Ass'n v. N. P. Ry. Co., 14 I. C. C. 51, 54. §7. Obligation to Carry. (a) Between Nov. 1, 1907, and May 21, 1908, complainant delivered to de- fendants at Beckville, Tex., shipments of lumber in carloads consigned re- spectively to Duncan, Comanche, Mar- low and Waurika, Okla., and requested the defendant, initial carrier, to bill them to said points. Defendant refused so to do on the ground that no joint rates were in effect to these points, and complainant was compelled to allow de- fendant to bill the same via Ringgold, Tex. For many years prior to the ship- ments joint through rates from Beck- ville were in effect of 221/20 to Waurika, and 26 1/4 c to Duncan, Comanche and Marlow. Shortly after the shipments in question these joint through rates were restored. No evidence of their un- reasonableness was offered. Complain- ant, by the routes over which the ship- ments were moved by the carriers, was assessed rates higher than such joint rates. HELD, it was the duty of the initial carrier to receive the shipments in question, to issue to complainant a receipt therefor, to indicate on the way- bills the final destinations, and to trans- port and deliver them to its connecting carrier, and that it was the duty of the connecting carriers to transport and de- liver at destinations, each carrier charg- ing for its service its legally published rate. The joint through rates of 22i^c and 26 1/4 c were reasonable. Reparation awarded on that basis. Corporation Commission of Oklahoma v. C. R. I. & G. ity. Co., 17 I. C. C. 379, 382. (b) A common carrier, in order to build up and foster industries on its own lines, cannot lawfully refuse to carry the products located on connect- ing lines. Standard Lime & Stone Co. V. Cumberland Valley R. R. Co., 15 I. C. C. 620. §8. Relation of Siir.ilar Points. See Equalization of Rates, §2 (I). (a) Complainant purchased a loco- motive from the L. V. R. R., which, as agent for complainant, delivered the same to defendant at Easton, Pa., with a card bill showing it consigned to Lake View, N. J., and routed via Sparta Junction and Hawthorne. The rate from Easton to Lake View via the route of shipment was 13c. A joint through rate of 10c was in effect fom South Eastom, a station one mile more distant from Lake View than Easton, to Lake View via Sparta Junction and Hawthorne. No joint through rate was in effect from Easton via this route, but there was one of 10c in effect be- tween Easton and Lake View via Sparta Junction and Greycourt. No evidence was offered to show the 13c rate charged unreasonable, except the 10c rate between tha points in question via Greycourt, and no question on this point was raised in the pleadings or at the hearing. HELD, the rate charged was not shown to be unreasonable, and reparation denied; that even if unrsa- sonable, no reparation could be awarded, complainant not having paid the charges; but that unless warranted by unusual conditions the through rate from Easton to Lake View should not THROUGH ROUTES AND JOINT RATES, §8 (b)— §9 (f) 847 exceed the rate from South Easton. Males Co. v. L. & H. R. R. R. Co., 17 I. C. C. 280, 281, 282. (b) Complainant is a short line rail- way extending from Cedar Rapids to Iowa City, a distance of some 21 Vz miles. Under the complaint asking for the establishment of through routes and joint rates from points on its line to Chicago and other points, via Cedar Rapids, over the C. & N. W. Ry., it appeared that towns on the other lines in the territory ranging from 6 to 30 miles in distance away from Cedar Rapids Avere, generally speaking, grouped and given about the same rate as Cedar Rapids. HELD, that the joint rates to be established should be such as to place the points on the complainant's line as nearly as possible on an equality with the points in such groups, but that recognition should be given to the rule that joint rates over two or more connecting lines should be higher than the rates on one-line movements, and that the rates should be 10 per cent higher than the rates from Cedar Rap- ids. Cedar Rapids & Iowa City Ry. & Light Co. V. C. & N. W. Ry. Co., 13 I. C. C. 250, 255. (c) Where a joint rate was in effect from a competitive point, but none from point of shipment, reparation awarded, and the establishment of a joint rate ordered. Shelby County Washed Coal Co. V. C. B. & Q. R. R. Co., Unrep. Op. 565. §9. Right to Favor Own Line. See Discrimination, §10; Equaliza- tion of Rates, §2 (n). (a) A carrier may so construct tariffs as to hold traffic to its own line so long as the Act is not violated. Van Natta Bros. v. C. C. C. & St. L. Ry. Co., 23 I. C. C. 1, 5. (b) On traffic originating at Willi- mansett, Holyoke, Brightwood, Chicopee and Chicopee Falls, Mass., on the rails of the B. & M. R. R. and moving to New York City in connection with the Boston & Albany R. R. through Chat- ham or Rensselaer, a distance of 213 miles, the former road got a haul of about six or eight miles, but if this traffic moved through Troy, a distance of 268 miles, it had a haul of 120 miles. The traffic to New York City was not large. In order to get the long haul it canceled its joint rates with the Boston & Albany R. R., thus closing the Chatham and Rensselaer route and compelling the traffic to move through Troy. HELD, it is scarcely to be ex- pected that a carrier that may have a haul of 120 miles would be satisfied with a haul of but six miles with the meager earnings accruing under its es- tablished division. Nor is it a reason- able attitude by a shipper to demand that a carrier should be so short-hauled except upon a clear showing that the service over the other route was noi satisfactorily maintained and reasonably prompt. Without announcing any gen- eral rule or principle the B. & M. R. R. is entitled to an opportunity to demon- strate the efficiency of the Troy route. In Re Advances in Rates From Chico- pee, Mass., 23 I. C. C. 263. (c) It is unlawful to add anything to reasonable rates by way of a penalty to be forfeited if the outbound shipment does not move over the same line which hauled the inbound shipment. Red River Oil Co. v. T. & P. Ry. Co., 23 I. C. C. 438, 447; Tai>-line Case, 23 I. C. C. 549, 650. (d) The Commission cannot make a general order requiring carriers of live stock to establish through routes and joint rates via all reasonably direct routes, whereby some carriers would be deprived of the benefit of the lon.^ haul by their own lines. Each case must be presented and considered on its own merits. In Re Advances on Meats and Packing-house Products, 23 I. C. C. 656, 662. (e) The statute provides that in es- tablishing joint rates and through routes each carrier against which the order is made shall be given the benefit of the long haul by its own line "unless to do so would make such through route un- reasonably long as compared with an- other practicable through route which could otherwise be established." The Commission cannot therefore establish in every case a through route and a joint rate, but must work under the limitation imposed by the Act of Con- gress as above set forth. In Re In- vestigation of Alleged Unreasonable Rates on Meats, 23 I. C. C. 656, 662. (f) The Commission has little sym- pathy with and will not ordinarily lend its aid to, an effort by one road to secure traffic that is reasonably tributary to 848 THROUGH ROUTES AND JOINT RATES, §9 (g)— §11 (1) (h) another road by compelling the lat- ter to join with it in through routes and rates, but will not permit the theory as to what traffic is tributary to a road to be pushed to such an extreme as to impose an undue burden upon ship- pers. C. & C. Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 492. (g) A trunk line carrier which pur- chases a branch line road is justified in canceling through joint rates with an- other carrier when such cancellation will tend to move traffic entirely over its own line under reasonable and non- discriminatory rates to the exclusion of the former two-line haul. In Re Pro- posed Rates on Lumber, 20 I. C. C. 575, 580. (h) A carrier may in its own interest, if it so desires, carry for a longer dis- tance over its own line than would be necessary if carried over the line of its competitors, in order to obtain a portion of the competitive business upon terms that will afford some profit. It does not necessarily follow, however, that a car- rier not competing for traffic in this way thereby subjects itself to an order com- pelling it to do so. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347. §10. Status of Intermediate Carrier. (a) There is nothing in the plea that defendant operates a circuitous route which excuses discrimination in transit privileges to mills on its own line. When defendant publishes a specific rate from St. Louis it makes itself a link in the through transportation of grain or the product from point of origin to point of destination and whatever privileges are accorded to mills at St. Louis by way of milling this grain in transit ought to be accorded to mills on own line. It is no hardship to require that this be done, whether its line be direct or circuitous, and unless it is willing to submit to this condition it ought to re- tire from the business. Southern Illinois Millers' Ass'n v. L. & N. R. R. Co., 23 I. C. C. 672, 677, 678. §11. What Is Satisfactory Through Route. §11. (1) In General. See Routing and Misrouting, §7 (ccc). (a) South Tacoma, adjacent to Ta- coma, Wash., is entitled to through] routes and joint rates, which rates may properly be somewhat higher than rates accorded Taoma. Public Service Comm. of Wash. V. N. P. Ry. Co., 23 I. C. C. 256. (a) In the majority of instances in- volved in the transportation of live stock carriers should establish through routes and joint rates via all reasonably avail- able direct routes. In Re Advances on Meats and Packing-house Products, 23 I. C. C. 656, 662. (c) Railroads of the country are called upon to so unite themselves that they will constitute one national system; they must establish through routes, keep these routes open and in operation, furnish necessary facilities for such transportation, make reasonable and proper rules of practice as between themselves and the shippers and as be- ■tween each other. Missouri & Illinois Coal Co. V. L C. R. R. Co., 22 I. C. C. 39, 46. (d) Railroads are required under the Act to serve the through routes which they have established with other car- riers without respect to the fact that in rendering such service their equip- ment may be carried beyond their own lines. Missouri & Illinois Coal Co. v. I. C. R. R. Co., 22 I. C. C. 39, 44. (e) Where a reasonably satisfactory route on transcontinental business to points in Oregon is afforded by a car- rier serving those points via short lines, another route will not be opened via a much more circuitous line controlled by direct lines which formerly were competitors. Gile & Co. v. S. P. Co., 22 L C. C. 298, 301. (f) The responsibilities and liabilities of each carrier in the line composing a through route under the law cannot be evaded by it. Mfgrs. Ry. Co. v. St. L. L M. & S. Ry. Co., 21 L C. C. 304, 315. (g) No importance is attached to the suggestion that undue burden, under the Carmack amendment, would be placed upon the defendant if compelled to join in through routes and rates. Cincinnati & Columbus Traction Co. v. B. & O. S. W. R. R. Co., 20 I. C. C. 486, 494. (h) The obligation to establish through routes and joint rates is im- posed by section 1. Florida Cotton Oil THROUGH ROUTES AND JOINT RATES, §11 (1) (i)— (s) 849 Co. V. C. of G. Ry. Co., 19 I. C. C. 336, 338. (i) A water carrier, owned by the shipper, is not entitled to through routes and joint rates, though incorporated as a common carrier. Gulf Coast Naviga- tion Co. V. K. C. S. Ry. Co., 19 I. C. C. 544, 548. (j) Carloads of beer were delivered to the M. P. Ry. at St. Louis to be transported to Leadville, Colo., via Pu- eblo, over the D. & R. G. R. R. The property moved through from St. Louis to Leadville in the cars in which it was originally loaded under the shipping re- ceipt issued at St. Louis, the trans- portation sheets issued by the M. P. Ry. being accepted by the Denver & Rio Grande R. R. Neither the shipper nor th^ consignee interfered at Pueblo or else- where. The D. & R. G. R. R. advanced to the M. P. Ry. the full amount of its charges and collected same from the consignee. The rate charged was made up of 47c to Pueblo and 45c thence to Leadville. The D. & R. G. R. R. did not, generally speaking, participate in joint rates to points on its lines in Colorado, but business offered by its connections was moved on combination rates. HELD, the Commission would not order the establishment of a joint through rate from St. Louis to Leadville, since a through route was practically in effect, and to make such an order might disturb the system of rate mak- ing in effect, but that the Commission would limit its order compelling the D. & R. G. R. R. to make a reasonable charge from Pueblo to Leadville, so as to give to shippers a reasonable combin- ation rate from St. Louis to Leadville. Baer Bros. Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. 225, 228; decision of Com- mission holding that the D. & R. G. R. R. Co. was subject to the Act, and that the carriers by their dealings with each other had established joint through routes from St. Louis, Mo., to Leadville, Colo., sustained. D. & R. G. R. R. Co. v. L C. C, 195 Fed. 968, 973. (k) If a reasonable and satisfactory through route between two points does exist, another route cannot be compelled. Enterprise Fuel Co. v. Penn. R. R. Co., 16 I. C. C. 219, 222. (1) There may be a through route from a given point of origin to a city which is satisfactory, and yet another through route from the same point to another section of the same city may be necessary. A railroad may not say that it can retain a monopoly of certain traffic no matter what its service or what the public necessities require. A shipper, on the other hand, is not enti- tled to a through route because he may not be as conveniently served by one railroad as another. Enterprise Fuel Co. V. Penn. R. R. Co., 16 I. C. C. 219, 222. (m) It cannot be said that railroads must unite in through routes between all points. Enterprise Fuel Co. v. Penn. R. R. Co., 16 I. C. C. 219, 222. (n) A shipper by locating its yard on another line of railroad but at the same transportation point may not com- pel the establishment of a new through route. Enterprise Fuel Co. v. Penn R. R. Co., 16 I. C. C. 219, 224. (o) In the amended Act authorizing the Commission to establish through routes unless the carrier has in effect "a reasonable or satisfactory" route, the words "reasonable or satisfactory" are equivalent to "reasonably satisfactory." In the Matter of Through Passenger Routes via Portland, Ore., 16 I. C. C. 300, 302. (p) A route satisfactory to one kind of freight might not be satisfactory with respect to another. In Re Through Passenger Routes, 16 L C. C. 300, 303. (q) While a railroad is competent to demand an order establishing through routes and rates with its connections, its right to such order is to be tested by various considerations, including the needs and convenience of the commun- ity which it seeks to serve. Crane R. R. Co. V. P. & R. Ry. Co., 15 I. C. C. 248, 254. (r) Where in demanding the estab- lishment of through routes and joint rates the complainant fails to include the necessary parties defendant and to show that the commodity in question does not already enjoy the benefit of a satisfactory through route, the complaint must be dismissed. Anthony v. Phila. & Reading Ry. Co., 14 I. C. C. 581, 584. (s) A carrier cannot establish a through route and joint rate except under concurrence of the other carriers that form parts of such route, and in the absence of agreement no connect- ing carrier is obliged to furnish cars tq 850 THROUGH ROUTES AND JOINT RATES, §11 (1) (t)— §11 (2) (b) take shipments from points of origin on another carrier's line. Memphis Freight Bureau v. F. S. & W. R. R. Co., 13 I. C. C. 1, 8. (t) The purpose of section 15 of the Act relating to the establishment of through routes and joint rates is to afford relief to a shipping community and not to aid carriers to acquire strategic advantages in their contests with one another. While a railroad com- pany is competent to file a complaint under the clause in question and to de- mand an order establishing said routes and rates with its connections, its right to such relief is to be tested by the needs of the community which it seeks thus to serve and not by the fac: that stations on its line in such community have not been accorded such routes and rates by connecting lines. Chicago & Milwaukee Electric R. R. Co. v. I. C. R. R. Co., 13 I. C. C. 20, 26. §11. (2) When Through Route Ordered or Denied. (2) When Through Route Ordered or Denied. See Differentials, §7 (e) ; Lighterage, §4 (a); Narrow-Gauge Railroads, I (c). (a) Complainant sought the estab- lishment of through routes and joint rates from its mines in the Walsenburg district, Colo., to certain points in Kan- sas, Oklahoma and Texas; these points, including (1) the 77 junction points in Kansas to which the Commission, in Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 17 I. C. C. 479, found that satis- factory through routes were already in existence, and (2) the points in Texas and Oklahoma to which, in that opinion, the Commission held that it was impos- sible to decide via what junction points the rates should be established. On point (1) complainant introduced testi- mony to show (a) that it is impossiblo for dealers at the junction points whose bins are on the Santa Fe tracks to successfully handle coal from the Wal- senburg district because of the expense of the extra haul; (b) that the rate of the Santa Fe on nut coal from mine>^ in the Canon City district of Colorado to points in southern Kansas is $2.75 per ton, while from the Walsenburg dis- trict mines the rate is $3 per ton via the Rock Island or the Missouri Pacific lines. On point (2) it appeared from the testimony that it would make no difference to the St^nta Fe via which gateway through routes and joint rates from the Walsenburg district are estab- lished. HELD, the prayer for through rates to the junction points in Kansas is denied. Defendants should establish through routes and joint rates in Texas and Oklahoma via Pueblo, Colo., the joint rates not to exceed rates on the Santa Fe from the Canon City district. Colorado Coal Traffic Ass'n v. A, T. & S. F. Ry. Co., 22 I. C. C. 264, 26G, 267. (b) The Manufacturers Railway Com- pany of St. Louis, Mo., and a number of shippers located on its lines asked that through routes be established to and from points on its lines of railway in St. Louis, Mo., from and to points on the lines of each of the defendant rail- way companies and points beyond; also for the fixing of reasonable divisions or absorptions out of the St. Louis rates to be paid to the Manufacturers Rail- way Company for terminal services ren- dered by it and for reparation. This company 'Was incorporated in 1887 to furnish terminal facilities for the south- ern section of industrial St. Louis which, owing to the physical conditions exist- ing there, seem both reasonable and necessary. The Terminal Railroad Asso- ciation dominates entirely the terminal facilities of St. Louis and the stock of this company is owned equally by the fourteen carriers running into that city. The only terminal facilii.es in the south- ern section are furnisbel by the Manu- facturers Railway and by the lines of the St. L. I. M. & S. H. R. The lat- ter's tracks, however, follow the bank of the Mississippi River and reach such industries as are adjacent thereto. For a considerable distance along the river there is a steep grade to be overcome in reaching industries back from the river and it was to afford service to these that the Manufacturers Railway was constructed. The ^Manufacturers Railway leased its tracks to the St. L. I. M. & S. R. R. until 1908, since when it was operated independently. The ma- jority of its stock is owned by the An- heuser-Busch Brewing Ass'n. For the year ending April 30, 1910, it handled 42,970 cars, of which 37,546 cars were handled for the Brewing Association, and 5,424 cars were handled for some 87 other industries or patrons of which 35 shipped or received 10 cars or more. The traffic of the Brewing Association constitutes one-thirtieth of the total traf- THROUGH ROUTES AND JOINT RATES, §11 (2) (c)— (e) 851 fie of St. Louis. The complainant oper- ates about 20 miles of track, of which 21^ miles are classed as main track and the remainder as side track,, switches and yard track. Of this total six miles are leased from the Brewing Association and are used in part both for the serv- ices of the brewery and the public. The only physical connection o--her than that with the St. L. I. M. & S. R. R. is is with the St. Louis Transfer Co., one of the constituent properties of the Terminal Railroad Association. Two- thirds of the tracks of the Manufacturers Railway has been constructed solely for the purpose of serving the public, while the remaining one-third is used in serv- ing both the brewery and the public. Prior to March 1, 1910, there existed through routes and joint rates over the lines of defendant carriers and com- plainant carriers to and from points on the line of the complainant company. Since that date the defendants' decline to absorb the charges for the services of the Manufacturers Ry. While the Manufacturers Ry.. was operated by the St. L. I. M. & S. R. R. during 21 years and also when operated under the tariffs which permitted an allowance to the Manufacturers Ry. itself in 1909 until March 1, 1910, delivery has been made to the public served by it at the St. Louis rates. HELD, in view of all the facts, circumstances and condi- tions bearing upon the question there ^'s no doubt that the Manufacturers Rail- way Company is in fact a common car- rier at common law, notwithstanding any modification thereof, and therefore with- in the provisions of the first section of the Act to Regulate Commerce, and that the payment to it of a reasonable and just portion of the St. Louis rates for the terminal services rendered by it Is not unlawful, and that it is not a mere plant facility. FURTHER HELD, that the action of defendants in canceling the division and absorptions with the Manufacturers Railway which have been for many years included m the St. Louis rates, has subjected complainant shippers and a considerable portion of the public of south St. Louis to the payment of unjust and unreasonable transportation charges, and to undue discriminations and disadvantages. Ques- tion of what are reasonable divisions and the reparation to be awarded re- served for further investigation. (Lane, Comm'r, concurring opinion; Harlan, Comm'r, dissenting opinion.) Mfr'rs. Ry. Co. v. St. L. L M. & S. Ry. Co., 21 I. C. C. 304. (c) The Tacoma Eastern Railroad extends southeasterly from Tacoma into the Cascade Range and for 10 years had in effect from points on its line to points on the N. P. Ry. east of Gleudive, Mont, and to points on the C. B. & Q. R. R. and the C. & N. W. Ry. southeast of Billings, Mont., through rates ard joint tariffs covering lumber, shingles and other forest products. The Chicago, Milwaukee & Puget Sound Ry. Co. hav- ing, completed its road to the Pacific Coast obtained control of the Tacoma Eastern Company and thereupon the de- fendants canceled the joint rates, thus compelling the shippers to pay a com- bination of locals to the territory cov- ered by the former rates. HELD, the Commission cannot recognize the right of a railroad to deprive shippers of ac- cess to markets at reasonable rates be- cause of a change in relationship be- tween railroads. Inasmuch as by the cancellation of these through rates the total rate from point of origin to desti- nation would be increased, this case falls into the general category of cases gov- erned by the amendment of 1910 to section 15 in which the burden of proof to show that the increased rate or pro- posed increased rate is just and reason- able is placed upon the carrier. No evidence having been offered to show that the through rates now existing were not reasonabxe or that the in- creased rates would be reasonable the present rates are ordered kept in effect. If the carriers cannot agree upon divi- sions appeal may be made to the Com- mission. (Prouty, Comm'r, concurring opinion.) In Re Rates on Lumber and Other Forest Products, 21 I. C- C. 455, 456, 457. (d) A through route and joint rate established on lumber of 16c per 100 lbs. from West Edmeston, N. Y., to New Britain, Conn., via the Unadilla Valley R. R. Co., the N. Y. O. & W. R. R. Co., the Central New England Ry. Co. and the N. Y. N. H. & H. R. R. Co., unless defendants desire to put in a separately established rate between New Berlin, N. Y., and New Britain, Conn., of 13c per 100 lbs. Burton v. U. V. R. R. Co., 20 T. C. C. 75. (e) Complainant shipped cement in paper sacks from New Village, N. J., 852 THROUGH ROUTES AND JOINT. RATES, §11 (2) (f) — (h) to Williamstown, Vt., via the D. L. & W., D. & H. and Rutland R. Rs. to Burlington, Vt., thence by the Central Vermont R. R. to destination, under the joint through rate to Burlington plus its local to Williamstown. It also shipped the same commodity from New Village to Enosburg Falls, Vt., via the D. L. & W., D. & H., B. & M., St. Johnsbury & Lake Champlain R. Rs. to Sheldon Junction, and the Central Ver- mont R. R. from Sheldon Junction, under a joint through rate to Sheldon Junction plus a local from thence to destination. Subsequent to shipment a joint through rate was established via the N. Y. N. H. & H. R. R. Prior to shipment complainant applied to the D. L. & W. R. R. for a through route and joint rate and that company tried to make such arrangements with the Cen- tral Vermont R. R. via the lines over which these shipments moved but with- out success. HELD, no evidence is in the record from which the Commission can find that a through route ought to be in effect at the time of these ship- ments, and the fact that the Central Vermont R. R. declined to make such arrangements, and the fact that the present through route is via a different line, rather indicates that that company may have been justified in refusing the proposition of the D. L. & W. R. R. for such through arrangements; that it cannot be said that any of defendants were guilty of negligence in not having been able to establish a through route and joint rate at time of shipment. Damages refused and complaint dis- missed. Edison Portland Cement Co. v. D. L. & W. R. R. Co., 20 I. C. C. 95. (f) Complainant, an electric interur- ban railroad extending from Norwood, a suburb of Cincinnati, to Hillsboro, en- tirely within the state of Ohio, a dis- tance of 53 miles, prayed for an order requiring the defendants to establish connections and joint rates for the in- terchange of interstate traffic. Under the local law it could not have com- pelled this connection. Subsequent to the hearing the petitioner filed with the Commission two letters addressed to the complainant from shippers on its line giving it authority to use their names as co-plaintiffs. The line of complainant parallels the lines of defend- ants at several points and many of the towns served by complainant are within a short and reasonably convenient dis- tance of stations on one or the other of defendant lines. Defendants claimed that complainant's equipment was old and that it could not handle the modern cars of defendants. HELD, that the local law could not bar complainant's right to a connection under the Inter- state Commerce Act; that the general practice of the Commission is not to take a technical view of the record, but to get at the substance of things when possible, and that therefore the proper parties were before it; that defendants would not be required to make a con- nection with complainant at points served reasonably by the defendants, but that defendants be required to join with the complainant in opening through routes and establishing joint rates be- tween interstate points and certain towns on the line of complainant that are from 5 to 10 miles by the country roads from any station on the defendants' lines; and that the Commission finds that complainant will be able to handle the equipment of the defendants and as- sumes it will make improvements should any be found necessary. C. & C. Trac- tion Co. V. B. & O. S. W. R. R. Co., 20 I. C. C. 486; order of the Commission ordering the establishment of a switch connection and through route enjoined on the ground that the Cincinnati & Columbus Traction Co. is not a "lateral" branch line of railroad within the mean- ing of section 1 of the Act as amended June 29, 1906. B. & O. S. W. R. R. Co. V. U. S., 195 Fed. 962, 967. (g) The Commission holds with re- spect to the establishment of through routes and joint rates via the U. P. lines and their connections to Baker City, La Grande and Pendleton, Ore., and Walla Walla, Wash., that where joint through rates do not now exist from points upon these lines to the destinations named there is no reason- able and satsfactory through route, and that such through routes and joint rates ought to be established. The rates specified in Schedule A will be reason- able rates to be charged as joint rates applicable over the through routes thus established and ought not to be ex- ceeded for the future. City of Spokane V. N. P. Ry. Co., 19 I. C. C. 162, 177. (h) The lines east of Chicago, parties to this proceeding, were the L. S. & M. S., the P. F. W. & C, the Penn., the N. Y. C. & H. R., the B. & M. and the THROUGH ROUTES AND JOINT RATES, §11 (2) (i)— (j) 853 N. Y. N. H. & H. R. Rs. Where joint through rates do not now exist from points upon these lines to Spokane the Commission finds there is no reasonable and satisfactory through routes and that such through route and joint rate ought to be established. The rate speci- fied in Schedule A from these points to Spokane will be reasonable rates to be charged as joint rates applicable over the through routes thus established and ought not to be exceeded for the future. City of Spokane v. N. P. Ry., 19 I. C. C. 162, 175. (i) Complainant asked for the estab- lishment of through routes and joint rates on cotton seed from 284 points in the state of Georgia and 1 point in the state of Alabama to Jacksonville, Fla., the fixing of reasonable rates on that traffic for the future and reparation. In 1901 the average price of cotton seed was about $12 a ton; now it is over $30 a ton owing to competition in the purchase of the raw product. Complain- ant situated in Jacksonville at the pres- ent time gets less than half its seed in Florida and notwithstanding the wider territory to which it has extended its buying operations, its purchases have fallen from 12,000 tons in 1905 to 7,000 tons in 1907. The carriers appear dis- inclined to move cotton seed to mills that are not on their own line. On account of the many points to which combination rates to Jacksonville may be based complainant has had imposed upon it unnecessary difficulties and em- barrassments in overcharges. HELD, there is a general obligation laid upon carriers under the terms of section 1 of the Act to establish through routes and joint rates, and that complainant's contention that it is entitled to through routes and joint through rates from pro- ducing points to Jacksonville is sus- tained. Florida Cotton Oil Co. v. C. of Ga. Ry. Co., 19 I. C. C. 336, 338. (j) Complainant coal miners in the Walsenburg district, in southern Colo- rado, located on the line of the C. & S. R. R. asked for the establishment of through routes and joint rates via the Fort Worth «& Denver City Railway to points in the Panhandle of Texas and eastern New Mexico, along the lines of the Southern Kansas Ry. of Texas, Pe- cos & Northern Texas Ry., Eastern Ry. Co. of New Mexico and the Pecos River R. R., these lines being known as the Pecos lines and owned by the Santa Fe. Dealers located on the Pecos lines in Texas could only get Walsenburg coal by maintaining an agent at Amarillo, Tex., to receive the coal and rebill same to Texas points. Dealers on the Pecos lines in New Mexico were entirely cut off from Walsenburg coal on account of the prohibitive interstate distance tar- iffs purposely put into effect by the Santa Fe to prevent such movements. Complainants also sought through routes and joint rates via Pueblo to points on the Santa Fe in Kansas, and via Trini- dad to points on the line of the Santa Fe and on the Eastern Railway of New Mexico in New Mexico and Texas. The only way traffic could move was by bill- ing locally to Trinidad and rebilling at the local rate from Trinidad to point of destination. Through routes and joint rates were formerly in effect from the Walsenburg districts to such Texas and New Mexico points, but were with- drawn by the Santa Fe to enable that line to supply this territory with coal from Trinidad and Canon City, Colo., and from Gallup, N. M., from which points the Santa Fe was able to secure a longer haul and thereby enhance its revenues. Trafl[ic from the Walsenburg mines actually moved into the Texas territory via Amarillo, from which point it took the low Texas commission rates, and the total charge by this arrange- ment to any point on the lines in Texas was exactly the same as that from Canon City, plus the rebilling charge at Amarillo of shipper's agent. This move- ment was not possible to points in New Mexico, because the Texas commission rates did not apply, and the rates which did apply were prohibitive. Complain- ants asked for rates to points on the Pecos lines, south of Amarillo, equal to the rates in effect to those points from the Gallup mines; and for rates to points on the Southern Kansas Railway, north of Amarillo, equal to the rates in effect from the southern Kansas mines to such points, on the ground that thxs Walsenburg mines, being nearer than the other districts, the rate requested would be reasonable. The rates asked for were lower than those from the Canon City district and were demanded on the ground that the traffic from Canon City moved by way of Hutchin- son, Kan., over a route twice as long as the haul from the Walsenburg dis- trict via Amarillo. Walsenburg and 854 THROUGH ROUTES AND JOINT RATES, §11 (2) (k)— (m) Canon City coals were about on a par in quality, and for competitive reasons it was necessary that they take the same rates. The long haul from Canon City via Hutchinson was voluntarily established by the carrier in order to enable it to participate in the traffic. The initial carriers in the Walsenburg district encountered great difficulties in handling the traffic from the mines in said district. The lower rate on coal from Gallup to the points in question was influenced by the movement of empty cars eastward from California and by the fact that a down grade ex- isted from Gallup. HELD, joint through routes should be established from the Walsenburg district to the points, as requested; that joint rates should be accorded on coal from the Walsenburg district to points on the Santa Fe lines in Kansas and those points in Texas east of, but not including, Joel, which should not exceed the rates in effect be- tween Canon City, Colo., and those points; that to points in Texas and New Mexico west of and including Joel, Tex., but not including points in New Mexico on the line running north of Belen, the rates should not exceed the rates in effect from Trinidad, plus a differential of 30c per ton; and that to points north of Belen the rates should not exceed the rates in effect to such points from Trinidad, plus a differential of 25c per ton. Request for a differential on slack from the Walsenburg mines refused for lack of sufficient data in the record. Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 17 I. C. C. 479, 481, 485. (k) Defendants canceled certain joint tariffs providing for through routes and joint rates on lumber from the Kalispell district to points located on the M. St. P. & S. Ste. M. Ry., the junction point being at Minot, N. D. Complainants de- manded the restoration of these routes and rates, and defendants made no de- fense against granting such relief. HELD, the defendants, Great Northern Ry. and M. St. P. & S. Ste. M. Ry., should estab- lish a through route from Leonia, Idaho, and lumber producing points on the Great Northern Ry. in Montana via Mi- not, N. D., to points in North Dakota located upon the lines of said Minne- apolis Ry. between Minot and Hankin- son, including Hankinson, and between Hankinson and Drake, and that said defendants should apply to such through route the rates prescribed in the opin- ion. Kalispell Lumber Co. v. Great Northern Ry. Co., 16 I. C. C. 164, 172. (1) The Pennsylvania Railroad de- livered coal from the Alden colliery, in the Wyoming coal district of Pennsyl- vania, to its Bolton coal yards in Balti- more. Complainant coal company had coal yards in Walbrook, a suburban sta- tion within the limits of Baltimore, about four miles from Bolton, and at Hillen station, in the heart of the city, about one mile from the Bolton yards. Walbrook and Hillen stations were reached only by the Western Maryland R. R., which connected with the Penn- sylvania Lines at Hanover, 50 miles from Baltimore; no joint through routes from Alden to Walbrook or Hillen sta- tion existed over the Pennsylvania and Western Maryland R. Rs. Complainant demanded such joint through route be established. HELD, under sections 1, 3 and 15 of the Act, the Pennsylvania R. R. should be ordered to establish joint routes to Walbrook, since that sta- tion must be treated from a transporta- tion point of view as a distinct and sep- arate community, but that Hillen sta- tion," being in the heart of the city, should not be treated as a distinct point, and the Pennsylvania having established proper coal yards and complainant hav- ing deliberately chosen to place his yard on the line of another carrier, joint rates should not be established to Hillen station. Enterprise Fuel Co. v. Penn. R. R. Co., 16 L C. C. 219, 223, 224. (m) Complainant railroad connected defendants' lines with the Crane Iron Works, a plant owned by the corpora- tion controlling complainant and five other industries at Catasauqua, Pa. Com- plainant demanded through routes and joint rates on shipments from and to the plant of the Crane Iron Works and the plants of said five other industries, and that $2 per car for the haul be- tween these various industries and the exchange tracks of defendants be fixed as its share of the through rate. Com- plainant's line, including branches, was 1.9 miles long. The equipment com- prised 5 engines and 11 wooden dump cars, which were not designed for use in general traffic and were not per- mitted to pass from complainant's tracks. The right of way was 10 ft. wide and was located mostly on land owned by the Crane Iron Works. Com- plainant did not maintain a place of THROUGH ROUTES AND JOINT RATES, §11 (2) (n)— (o) 855 any sort for the receipt or delivery of freight for the public, nor did it bill freight from any point on its line. De- fendants had for some years made cer- tain allowances for switching, and the industries other than the said iron works had paid so much per car for switching. Complainant was incorpo- rated as a railroad company under the laws of Pennsylvania relating to com- mon carriers. It filed a tariff with and made reports to the Commission, but said tariff showed on its face that the rates named therein yvere for car switch- ing services to certain industries only. No rates were published from point to point on its own line, or from a point on its line to any point on another line. Complainant never held itself out as a common carrier of freight for the general public. The needs of the com- munity served by complainant were al- ready satisfactorily provided for. No other industry tnan said iron works complained of the situation. HELD, un- der the showing made, complainant was not entitled to the relief demanded. Crane Railroad Co. v. P. & R. Ry. Co., 15 I. C. C. 248, 253. (n) The Burlington, Cedar Rapids & Northern Ry., running through the grain-producing districts of northern Iowa, southwestern Minnesota and South Dakota, had no rails of its own into Milwaukee or Chicago, but prior to its acquisition by defendant Rock Island Lines, it maintained joint through rates on grain to Milwaukee and Chicago in connection with the C. M. & St. P. ana the C. & N. W. Rys. The Rock Island Lines, after acquiring the Cedar Rapids road, in 1902, withdrew all joint grain rates from local non-competitive points on the Cedar Rapids R. R, to Milwaukee, except on wheat and barley. Complain- ant grain dealers and millers at Mil- waukee demanded their restoration. The purpose of the Rock Island Lines in withdrawing the rates was to compel the shipment of coarse grains to Chi- cago, whereby it would secure for itself the entire haul. The Rock Island was tne only one of several railroad systems that did not make Milwaukee a common point with Chicago in the transportation of coarse grains. It made Milwaukee a common point with Chicago as to traffic moving under class and commodity rates from the local points on the Cedar Rapids and with respect to rates on all grains from competitive or junction points on the Cedar Rapids. The terri- tory served by the Cedar Rapids R. R. was, in geographical location, tributary to Milwaukee as much as, if not more than, to Chicago, and before the cancella- tion of the rates complained of a con- siderable volume of grain reached Mil- waukee from points on its rails which, since the cancellation, went to Chicago. The distance, through the nearest junc- tion with the C. M. & St. P. Ry., was some 70 miles less from the majority of stations on the Cedar Rapids R. R. than that from these stations to Chicago over the Rock Island. The mileage from the great majority of the stations on the Cedar Rapids R. R., when traffic goes to Milwaukee through Clinton, la., is substantially the same as through Dav- enport, la., over the Rock Island Lines to Chicago, the distance against Mil- waukee being only three miles. Under the adjustment complained of the low- est combination of local rates on grain to Milwaukee, namely, that based on Chicago, made the Milwaukee rate, from local points on the Cedar Rapids R. R., 3c higher than the Chicago rate, this difference being prohibitive against Mil- waukee. HELD, that the complainants were entitled to reasonable rates from the points of origin in question, and that the Rock Island Ry. had no right, for the purpose of building up its business, to force its services upon a shipper or insist upon carrying his shipments to one market when he desired to reach another, or that a shipment should go to the end of its rails if the shipper desired it to be diverted at an inter- mediate point to another market off its rails; that under the adjustment at- tacked no reasonable or satisfactory through routes, within the meaning of section 15 of the Act, existed to Mil- waukee, and defendant should create such routes; and that the rates on all grain from local points on the Cedar Rapids R. R. to Milwaukee should not exceed those to Chicago. Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co., 15 L C. C. 460, 464. (o) Defendant Kansas Southwestern R. R. extends from Arkansas City, Kan., westerly some 60 miles. Defendant Mid- land Valley R. R. extends from Arkan- sas City southeasterly through Fort Smith, and Muskogee, Okla., is located thereon. Complainant grain dealer and miller at Muskogee demanded the estab- lishment of through routes and joint 856 THROUGH ROUTES AND JOINT RATES, §11 (2) (p) — (q) rates from points on the defendant Kan- sas Southwestern R. R. to all points on the lines of defendants Kansas City Southern R. R. and M. K. & T. Ry. of Texas and their connections, for the purpose of enabling complainant to buy grain at points on the Kansas South- western R. R., mill same in transit at Muskogee and ship it to its trade in the south and southwest. Joint rates were in effect on all points on the Kan- sas Southwestern R. R. to all points on the Midland Valley R. R., including Muskogee. They were in effect also via the lines of other carriers than the Midland Valley R. R. to all points on said railroads leading into the south and southwest. No shipper on the Kansas Southwestern R. R. or on any of said roads leading into the South and South- west complained against said joint rates. Complainant did not attack the reason- ableness of the rates to points on the Midland Valley R. R. Defendant Kan- sas Southwestern R. R. was being oper- ated at a loss, and upon all through and joint rates in effect was being allowed as its portion its full local rates. HELD, the relief prayed for should be denied. Midland Mill & Elevator Co. v. K. S. W. Ry. Co., 15 I. C. C. 610, 614. (p) Complainant lumber and shingle producing and shipping interests of western Washington sought to compel the N. P. Ry. and the Great Northern Ry. to establish a through route and a joint rate from points on their lines via Portland to eastern destinations. The defendants reached eastern destinations through gateways at Spokane, Wash., and Silver Bow and Billings, Mont. From the points of origin in question a rate of 50c upon lumber was in effect over the N. P. Ry. and the Great North- ern Ry. to all Missouri River points and to many points east and west of that river. With respect to shipments from the points of origin in question to desti- nations east of Colorado common points the distances were less through said gateways than through Portland, and the transportation operations were fully as easy. In 1906 complainants had been unable to move their products over the routes in effect on account of congestion of traffic. For this congestion defend- ants N. P. Ry. and G. N. Ry. were partly to blame, but since that date had made great efforts to relieve the situation and prevent its recurrence. The N. P. Ry. and G. N. Ry. at a great expense extended their lines into complainants' territory for the purpose of developing same, and their enterprise in so doing would not be profitable unless they obtained the benefit of the long haul to points eastward. To compel them to deliver the traffic to the Union Pacific lines at Portland would deprive them of the large portion of the compensation of traffic developed and originated by them. With respect to Colorado com- mon points, the distance via the Billings gateway was some 1,728 miles; via the Portland gateway, some 1,535 miles. The service by the former gateway was as satisfactory as by the latter. With re- spect to Utah points traffic moving by the Spokane, Silver Bow or Portland gateway all passed through Pocatello. The distance from a typical point of origin to Pocatello via Portland is 875 miles; via Spokane, 1,328 miles; via Sil- ver Bow, 1,209 miles. The service by the Spokane and Silver Bow gateway was unsatisfactory. HELD, that with respect to Colorado common points and destinations east thereof, the through routes already in effect via Spokane, Silver Bow and Billings were satisfac- tory, and the Commission had no juris- diction to establish a new route through Spokane; but that as to Utah points a through route through Portland should be opened, and that the rates to Utah points from the Washington territory in question should not exceed the rate from Portland by more than 2^c. Pa- cific Coast Lumber Mfrs.' Ass'n v. N. P. Ry. Co., 14 1. C. C. 51, 58. (q) The lumber interests in western Washington were served by the N. P. Ry. and the Great Northern Ry., the in- dustries having been developed by those carriers. The Oregon lumber interests were served by the Oregon Railway & Navigation Co. in connection with the Union Pacific lines, these carriers hav- ing developed the industries in that state. In 1906, on account of congestion of traffic, the Washington lumber inter- ests were unable to move their products over the N. P. Ry. and the G. N. Ry. through the gateways of Spokane, Silver Bow and Billings, and demanded the establishment of a through route via Portland, where the traffic would be taken from the N. P. Ry. and the G. N. Ry. and delivered to the U. P. R. R. and its connections, for the long haul to eastern destinations. At that date the Oregon lumber interests were meeting with a THROUGH ROUTES AND JOINT RATES, §11 (2) (r)— (v) 857 like difficulty of congested traffic. HELD, the requests for the establishment tem- porarily of a through route through Portland for the purpose of relieving these Washington interests should be denied. Pacific Coast Lumber Mfrs.' Ass'n V. N. P. Ry. Co., 14 L C. C. 51, 60. (r) Defendant carrier tapped the long-leaf pine lumber section in the southern part of that district, and reached much more of such lumber than it did of the short-leaf pine. It canceled its joint rates with carriers reaching the principal short-leaf supply; claimed to be able to supply all of both kinds of pine, and sought to compel retail dealers located at Oklahoma, Missouri, Kansas and Colorado points to obtain from the districts reached by it all their lumber supplies. HELD, the opportunity to buy in a widely extended market be- ing a valuable one to merchants in that it presented a larger field of com- petition, defendant should be ordered to restore its joint rates. Star, Grain & Lumber Co. et al. v. A. T. & S. F. Ry. Co., 14 I. C. C. 364, 367. (s) The A. T. & S. F. Ry. and the K. C. S. Ry. meet at DeRidder, La., an important mill point for yellow pine. To restore through rates from DeRidder over the latter road would give to it a very long haul, and to the former a very short one, from the junctions of the two roads at Pittsburgh and Kansas City. The two lines were in general physical proximity. HELD, such joint rates would not be restored except upon a very full and convincing complaint and record. Star Grain & Lumber Co. V. A. T. & S. F. Ry. Co., 14 I. C. C. 364, 373. (t) Complainant manufacturer of cot- tonseed products at Memphis attacked the rates on cottonseed from points on the defendant Ft. Smith & Western R. R. to Memphis, the rates ranging from 47c to 58c on distances from 324 to 514 miles, and demanded that the rates should not exceed those on corn from the same points of origin to Memphis, ranging from 17c to 20c, and should not exceed the rates on cottonseed from points of origin on the Rock Island, a similar distance from Memphis. The rates attacked were higher 'than the combination of locals based on Fort Smith. The F. S. & W. R. R. was a new road, 217 miles long, extending from Fort Smith to Guthrie. It ran through a sparsely settled and little cultivated country, and was being operated at a loss. Its equipment was barely suffi- cient to deliver the local traffic on its line. Corn moves during the greater part of the year, while cottonseed moves only a short portion thereof. The Rock Island was an old road running through developed territory and operating at a profit. HELD, complainant's demand that the defendant F. S. & W. R. R. establish the same joint through rates on cottonseed as on corn, and that said rates should not exceed those in effect on the Rock Island, should be denied; but that joint through rates should be published by it not in excess of the com- bination of locals based on Fort Smith. Memphis Freight Bureau v. F. S. & W. R. R. Co., 13 I. C. C. 1, 9. (u) Complainant electric railroad paralleled the C. & N. W. Ry. from Milwaukee, Wis., to Chicago, the aver- age distance between said lines not ex- ceeding 41/^ miles. Piper's Siding and Hanche's Siding were constructed by complainant on the cabbage farms of two shippers in southern Wisconsin. The former point is about one mile from the siding of the C. & N. W. Ry. and the latter from 1% to 2 miles from said siding. Complainant demanded the es- tablishment of through routes and joint rates from these points via the Elgin, Joliet & Eastern Ry., a belt line, and the I. C. R. R. to points on the line of the latter carrier and its connections. Complainant was equipped to handle traffic except that it had no refrigerator cars, and would have been obliged to obtain same from the I. C. R. R. For many years the C. & N. W. Ry. had de- livered the cabbage traffic from this ter- ritory in an apparently satisfactory man- ner, and the industries had greatly pros- pered before the construction of com- plainant's line. HELD, the demand should be denied since satisfactory routes and joint rates via the C. & N. W. Ry. were already in effect from the points in question, and it was not neces- sary in order to prove that a satisfac- tory joint route under section 15 of the Act was already in effect to show that the C. & N. W. Ry. reached the very door of the farmers whom it served. C. & M. Electric R. R. Co. v. I. C. R. R. Co., 13 I. C. C. 20, 26. (v) On carloads of potatoes from Wautoma, Wis., to Springfield, Mo., 858 THROUGH ROUTES AND JOINT RATES, §11 (2) (w)— (x) routed by complainant via Chicago and St. Louis, a charge of SS'^c was as- sessed. The shipments might have moved upon a 25c rate over several other routes. By mistake of defendants the cars were shipped to East St. Louis instead of St. Louis, and were subjected for that reason to an unnecessary l^^c bridge toll, making the charge 38i/^c instead of 37c. The charge exacted was made up of a joint through rate from Wautoma via Chicago to East St. Louis of 20c, and a local rate from East St. Louis to Springfield of 18 ^c. The dis- tance from Wautoma to East St. Louis is 489 miles. Excluding the bridge toll of l^c, the 17c local rate exacted from East St. Louis to Springfield was estab- lished by the Missouri commission. HELD, complainant was not entitled to recover on the basis of the 25c rate over other routes since it routed the shipments itself; that satisfactory through routes being already in exist- ence the Commission could not estab- lish through routes and joint rates be- tween Wautoma and Springfield, and could not therefore award reparation on the basis of the unreasonableness of the charge exacted; but that complain- ant should be awarded reparation for the l%c bridge toll unnecessarily in- curred. Stedman v. C. & N. W. Ry. Co., 13 I. C. C. 167, 169, 170. (w) Complainant manufacturers at Little Rock, Ark., asked for the estab- lishment of through routes and joint rates on cottonseed in carloads from points on the Midland Valley R. R., in Oklahoma, to Little Rock, via the M. V. and the C. R. I. & P. Rys. Under the arrangement attacked, cottonseed was carried over the M. V. R. R. to Hart- ford at the local rate. Complainants were there compelled to unload, trans- fer and reload same, and pay the local rate over the C. R. I. & P. Ry. to Little Rock. Defendant M. V. R. R. opposed the establishment of through routes and joint rates on the ground that manu- facturers of cottonseed products were located upon its line at Fort Smith, Ark., and Muskogee, Okla., and that by carrying the products to those cities it also obtained the outbound s^upments of the manufactured products. Defend- ant M. V. R. R.'s course, while beneficial to the manufacturers at Muskogee and Fort Smith, was detrimental to tiie pro- ducers of cottonseed who would be bene- fited by the competition of manufac- turers at Little Rock. HELD, joint through rates and routes should be es- tablished between the points in ques- tion at a rate not to exceed the sum of the locals, since a carrier owed duties to any persons offering goods for shipment, whether living on or off its lines. Merchants' Freight Bureau of Little Rock, Ark., v. Midland Valley R. R. Co., 13 I. C. C. 243, 245. (x) The excess output of coal from Illinois fields was largely limited to western and southern Wisconsin, south- ern Minnesota, eastern Nebraska, Souin Dakota and northern Iowa. The Wil- mington field lies about 50 miles south- west of Chicago. The other fields in the northern Illinois group of mines are the Third Vein and Peoria fi#lds, the former lying about 50 miles west of the Wilmington field, and the latter about 60 miles southwest of the Third Vein. In the Wilmington and Third Vein fields coal was mined under sub- stantially similar conditions and at about the same cost. The cost of min- ing in the Peoria field was about 25c per ton less than in either of the other two fields. Cardiff, at which point com- plainant conducted its mining opera- tions, was at the extreme south end of the Wilmington field and was reached by the Wabash and the Chicago, Indi- ana & Southern R. Rs. Six or eight miles north of Cardiff was the town of Wilmington, served by the Elgin, Joliet & Eastern Ry. The mines of Wilming- ton enjoyed the benefit of through routes and joint rates via the E. J. & E. Ry. to all points on the line of the C. M. & St. P. Ry. Neither of the two last mentioned roads reached complain- ant's mine at Cardiff. But a reasonably direct outlet to points on the line of the St. Paul could be had over the C. I. & S. R. R., connecting with the St. Paul at McNab and Seatonville. Like routes could be had over the Wabash R. R. through Chicago. Formerly through routes and joint rates were in effect through Seatonville to points on the line of the C. M. & St. P. Ry. During that period complainant was able to mar- ket its coal to points on the C. M. & St. P. Ry. Such routes and rates were can- celed, and thereafter complainant was unable to market its coal at these points, and asked that they be re-estab- lished over both the C. I. & S. R. R. and the Wabash R. R, The C. M. & St. P. Ry. opposed such course on the THROUGH ROUTES AND JOINT RATES, §11 (2) (y)— §13 859 ground that it was able to supply such points on its line from mines located at Seatonville on shipments from which it received the entire revenue of the haul, whereas if the routes and rates requested were established it would be obliged to divide the revenue with the C I. & S. R. R. Every mine in the Wilmington field, if not every mine in the Third Vein field, enjoyed the routes and rates to the points on the C. M. & St. P. Ry. which complainant desired to reach. HELD, through routes and joint rates should be established over one of the two routes as demanded. An interstato carrier may not, in order to build up enterprises on its own line and prevent the trade of its local industries from being displaced by the competition of commodities on connecting lines, deny to industries on connecting lines the benefit of through routes and joint rates nor may it deny such routes and rates in order to prevent a division of rev- enue with the connecting carrier. The granting of the routes and rates prayed for is not in violation of section 3 of the Act providing that no carrier shall be required to give the use of its equipment to another carrier engaged in like business. Cardiff Coal Co. v. C. M. & St. P. Ry. Co., 13 P. C. C. 460, 465, 470. (y) Following the decision in Cardiff Coal Co. V. C. M. & St. P. Ry. Co., 13 I. C. C. 460, the C. & N. W. Ry. is or- dered to join with the C. I. & S Ry. in establishing through routes from coal mines at Cardiff, 111., to all strictly local points on the line of the C. & N. W. Ry. in the states of Michigan, Wisconsin, Iowa, Minnesota, South Dakota and Ne- braska, no order being entered with re- spect to competitive points on said line. Cardiff Coal Co. v. C. & N. W. Ry. Co., 13 I. C. C. 471, 472. (z) Complainant, a steamship com- pany plying between Benton Harbor, Mich., and Chicago, received fruit at Benton Harbor from defendant railway and carried the same on a through route and joint rate from the fruit growers' farms in the neighborhood of Benton Harbor to Chicago. Defendant canceled said route and rate with com- plainant, refused to renew same, and made an exclusive arrangement for such a route and rate with complainant's competitor plying between such points. Complainant and its competitor had di- vided the fruit traffic to Chicago almost equally between them. The boats of the competitor on reaching Chicago came up at right angles to the end of competitor's wharf, and the packages had to be carried the full length of the wharf, some 310 ft., to the wagons of the fruit dealers at Chicago. This situ- ation had resulted in congestion, delay- ing the delivery of fruit to the dealers and occasioning losses. Complainant's wharf was further off from the whole- sale houses of the dealers, but was situ- ated more conveniently for unloading into the dealers' wagons. Complainant demanded the re-establishment of a joint rate and through route. To deny same would have destroyed complain- ant and resulted in throwing its traffic entirely to its competitor, which would have been unable to deliver the same expeditiously to the Chicago dealers. HELD, the rate and route demanded should be established. Benton Transit Co. V. Benton Harbor, St. Joe Ry. & Light Co., 13 I. C. C. 542, 548. III. BILLS OF LADING. See Bills of Lading, II, §3 (a); Ex- port Rates and Facilities, II; Rout- ing and MIsrouting, §3. §12. Issuance in General. (a) No legal obligation rests on a rail carrier to give a through bill of lading covering movement by water be- yond its line, but the practice of with- holding through bills of lading, except as to certain preferred water lines, is illegal discrimination. Mobile Chamber of Commerce v. M. & O. R. R. Co., 23 I. C. C. 417, 424. (b) A bill of lading issued by a rail carrier, covering the inland rail and also the ocean haul, is not strictly a through bill of lading. Mobile Chamber of Com- merce V. M. & O. R. R. Co., 23 I. C. C. 417, 425. IV. REASONABLENESS THROUGH RATES. OF 13. In General. See Advanced Rates, §3 (a), (c), §5 (2) (f): Any-Quantity Rate, I (c) ; Blanket Rates, §7 (i), §10 (a), §11 (a); Brancli Lines, §1 (Ki); Classi- fication, §18 (5) (a); Commutation Fares (a); Evidence, §13 (6) (m), §64 (t) ; Proportional Rates, IV (i), (k); Reasonableness of Rates, §7 (a), §10 (b), §28 (ff), (q), §56 (a). 860 THROUGH ROUTES AND JOINT RATES, §13 (a) — (e) (a) While southern carriers may properly meet from both Oklahoma and Fort Worth via Memphis and Vicksburg the rates on packing-house products and fresh meats established via St. Louis to New York and other eastern terri- tory, the Commission cannot recognize the force of the contention that the rate itself should be established through these gateways. In Re Advances on Meats and Packing-House Products, 23 I. C. C. 656, 669. (aa) Defendants' tariffs named a pro- portional rate of 18c per 100 pounds from Omaha, Neb., to Little Rock, Ark., on grain and grain products destined to Conway and Morrilton, points lying be- tween Little Rock and Memphis, Tenn., with a milling-in-transit privilege at Lit- tle Rock. The tariffs provided for an additional charge for out-of-line hauls of Ic per 100 pounds for 40 and over 5 miles; li^c for 60 and over 40 miles. The distance from Little Rock to Con- way is 30 miles, and to Morrilton, 50 miles. Defendants under this tariff ex- acted extra charges of l^^c to Conway and 21/^c to Morrilton, under a provi- sion in the tariffs that in assessing these extra charges the difference between the mileage a shipment actually traveled via a transit point and the mileage via the shortest route from point of origin to destination should be considered the mileage of the out-of-line haul. The short-line distance from Omaha to Con- way is 695 miles via Coffeyville, Kan., while the distance via Little Rock is 738 miles, a difference of 43 miles, for which the out-of-line charge was l^/^c, according to the tariff. By a similar test the out- of-line haul from Omaha to Morrilton is 83 miles, for which the out-of-line charge. acocrdance with the tariff and were not HELD, that the charges exacted were in acordance with the tariff and were not shown to be unreasonable. Brook-Rauch Mill & Elevator Co. v. St. L., I M. & S. Ry. Co., 22 I. C. C. 249. (b) Complainant alleged that there was undue discrimination against Reno, in that the rates charged from Reno to the several points on defendant's lines were higher than the division of the joint rate from San Francisco and from Sacramento received by defendant for the same hauls. The bulk of the northbound trafiic of the defendant is through traffic originating in San Fran- cisco and destined to a competitive ter- ritory served by the Southern Pacific and Western Pacific R. Rs. as well as defendant. The greater part of defend- ant's business was traffic given it by the Southern Pacific R. R., and it was, therefore, compelled to receive from the Southern Pacific R. R. whatever pro- portional rates that road would give it, as otherwise the Southern Pacific R. R. could deprive it of the haul. The West- ern Pacific R. R., recently built, was also a very serious competitor to de- fendant. HELD, that good reasons ex- ist why the through rate may be less than the combination rate via Reno, and that the proportional rate therefore affords no criterion as to the reason- ableness of the local rate, and, there- fore, no discrimination was shown to exist. On account of the severe compe- tition of the Western Pacific, recently completed, and the fact that defendant has from time to time appeared to reduce its rates to suit new conditions, any further reduction by the Commis- sion at present seems unwarranted, especially as local rates in Nevada and other small roads were on an excep- tionally high scale. Therefore, the rates cannot be held to be unreasonable. Rail- road Commission of Nevada v. N. C. O. Ry. and S. V. Ry. Co., 22 I. C. C. 205. (c) Complainant shipped lumber, C. L., Woolam, Miss., to Owensburg, Ind., under a combination rate of 27c per 100 lbs. At the time of shipment a joint rate of 24c applied between these points, but via another gateway. Via the route shipment moved the carriers had not agreed on any division. HELD, as the joint tariff established a 24c rate via all junctions of the carriers parties thereto, the shipper could not be assumed to know via which gateway divisions had been agreed upon, and on that account could not be assessed a higher rate. Reparation awarded. Heft- ier Lumber Co. v. G. & S. I. R. R. Co., 21 I. C. C, 14. (d) Where the cancelation of joint through rates will result in higher charges from origin to destination, the burden is on the carrier to prove the reasonableness of the increased rate. In Re Investigation and Suspension Docket 28, 21 I. C. C. 455, 456. (e) The L. & N. R. R. Co. published a rate of 93c per 100 lbs. on carloads of mixed furniture from Evansville, Ind., THROUGH ROUTES AND JOINT RATES, §13 (f)— (m) 861 to El Paso, Tex. The connecting car- riers had not consented. Connecting carriers had participated in the tariff of southwestern lines that carried the 93c rate between the points mentioned, but the L. & N. had not concurred in that tariff. The L. & N. R. R. admitted the reasonableness of the 93c rate. Charges were collected on a combina- tion aggregating $1 per 100 lbs. Sub- sequent to date of shipment defendants filed a specific joint commodity rate of 89c per 100 lbs. HELD, the combina- tion of rates exacted to have been un- reasonable and reparation awarded, as prayed, for the amount collected in ex- cess of 93c per 100 lbs. Texico Trans- fer Co. V. L. & N. R. R. Co., 20 I. C. C. 17. (f) A carrier may not lawfully make rates to a given point on its line on traffic going beyond by wagon or other similar conveyance which are lower than its established rates to that point as a final destination. Bayou City Rice Mills V. T. & N. O. R. R. Co., 18 I. C. C. 490, 493. (g) On the question of the reason- ableness of through lumber rates from the yellow pine district in the South to Omaha, to sustain which the local fac- tors at the St. Louis combination were advanced so as to make the combination as high as the through rate in question, it is immaterial that there has been a reduction in the Nebraska state rates by the state commission and that to any Nebraska points the rates make the combination on Omaha, since the rate dealt with is the rate from the points of origin in question to Omaha and not the combination rates to Ne- braska points. Commercial Club of Omaha v. Anderson & Saline River Ry, Co., 18 I. C. C. 532, 536. (h) On a carload of buckwheat shipped from Gobies, Mich., to Janes- ville. Wis., complainant was assessed 21i^c. The combination of locals through Chicago was 14c. Shortly after the shipment moved defendants estab- lished a through rate of 14c. Defend- ants admitted the rate charged to be unreasonable and that 14c was a rea- sonable rate. HELD, the 21i^c rate was unreasonable. Reparation awarded on the basis of 14c. Blodgett Milling Co. V. C. M. & St. P. Ry. Co., 17 I. C. C. 587. (i) On through shipments differences in distance are not important in con- sidering rates. Avery Manufacturing Co. V. A. T. & S. F. Ry. Co., 16 L C. C. 20, 22. (J) On shipments of sundry groceries in less-than-carload packages from St. Paul, Minn,, to Lemmon, S. D., and from St. Paul to Hettinger, N. D., complain- ant was charged the combination of local rates based on the Missouri River, and amounting, from St. Paul to Lem- mon, to 167c, 144c, 119c, 98c for classes 1, 2, 3, 4, respectively, and from St. Paul to Hettinger, to 176c, 151c, 124c and 101c. Shortly after the shipments in question defendant established through rates from St. Paul to Lemmon of 117c, 100c, 80c, 64c for these classes, and from St. Paul to Hettinger 125c, ' 106c, 87c, 69c. The charges assessed were the regular published rates, and the only rates that could have been law- fully collected. HELD, the rates ex- acted were unreasonable and should not have exceeded the through rates sub- sequently established. Reparation awarded. Allen & Co. v. C. M. & St. P. Ry. Co., 16 L C. C. 293, 294. (k) Defendant initial carrier pub- lished a joint rate of 16i/4c from Grand Rapids to Houghton, Mich. It received from complainant without routing in- structions carloads of plaster and routed same via a carrier which had not joined in said joint rate. As a result the only lawful published rate was 20c, which was exacted of complainant. Subse- quent to the shipments in question tar- iffs were corrected so as to make a 161/^c rate over the route the snipment moved. Defendant initial carrier might have secured said 16 ^/^c rate by sending the shipment over another route. HELD, the rate exacted was unreasonable. Rep- aration awarded. Grand Rapids Plaster Co. V. P. M. R. R. Co., 15 L C. C. 68, 69. (1) On a carload of sacked, shelled oats from Durant, Okla., to Hope, Ark., thence to 011a, La., the sum of the locals was applied, 13c, Durant to Hope, and 51c, Hope to 011a. Defendant ad- mitted said 51c charge was unreason- able to the extent it exceeded 31c. HELD, the rate exacted was unreason- able. Reparation awarded. Venus v. St. L. I. M. & S. Ry. Co., 15 I. C. C. 136, 137. (m) The unreasonableness of a through rate upon an Interstate shipment via a 862 THROUGH ROUTES AND JOINT RATES, §13 (n)— (v) given route cannot be determined by a mere comparison therewith of a lower aggregate of rates, consisting of a local intrastate rate ' plus an independent in- terstate rate based upon a junction through which the carriers have no joint route and no basis of division. Marble Falls Insulator Pin Co. v. H. & T. C. R. R. Co., 15 I. C. C. 167, 169. (n) On carloads of paper-mill ma- chinery from Pittsfield, Mass., to Mil- linocket, Me., a rate of 36.32c was ex- acted. Prior to the shipments defend- ants intended to establish a 23c rate, but their effort was rendered ineffective through the omission from the tariff of one of the many carriers involved in the through route. Defendants admitted the rate exacted to be unreasonable, HELD, the rate exacted was unreason- able. Reparation awarded on the basis of 23c. Jones & Sons Co. v. B. & A. R. R. Co., 15 I. C. C. 226. (o) On a carload of vegetables from Green Bay, Wis., to Pattonsburg, Mo., via Ottumwa, a combination charge made up of O^^c to Milwaukee and 22c thence to destination was exacted. No through rate was applicable over the lines of defendants, but a joint through rate of 22c was in effect over competing lines. About a year subsequent to the shipment, defendants established the said 22c rate and admitted the rate ex- acted to be unreasonable. HELD, the rate charged was excessive. Reparation awarded on the basis of 22c. Thomas v. C. M. & St. P. Ry. Co., 15 L C. C. 584, 585. (p) It is fair to assume that when 91 miles of the 96 of a certain haul is cov- ered by a 25c rate, transportation for the remaining 5 miles is not under such dissimilar circumstances and conditions as to warrant the exaction of 34c more in charges. Advance Thresher Co. v. O. & N. W. R. R. Co., 15 I. C. C. 599, 601. (q) Upon a shipment of water tanks and sub-structures from Kendallville, Ind., via Chicago to Beaver Dam, Wis., complainant was charged the established joint rate over lines of the defendants of 28c per 100 lbs. Contemporaneously defendants maintained a joint through rate from Kendallville to Milwaukee of 121/^c, and from Milwaukee to Beaver Dam of 9c, totaling 21i^c. Since tlie filing of the complaint defendants re- duced the Kendallville to Beaver Dam rate to 21i^c. HELD, the 28c rate was excessive and complainant entitled to reparation based on the rate of 21i/^c. Flint & Walling Mfg. Co. v. L. S. & M. S. Ry., 14 L C. C. 336, 337. (r) On shipments of cottonseed cake from Shreveport, La., via Sherman, Tex., to Kansas City, no through rate was published. The combination of lo- cals was 42i^c. The published tariff via Jonesboro was 18c. Defendants ad- mitted that 25c via Sherman was a rea- sonable rate. Defendants charged 53c. HELD, a through rate via Sherman should be established not to exceed 25c, and complainants were entitled to reparation on the basis of 25c. Stock Yards Cot- ton & Linseed Meal Co. v. St. L. S. W. Ry. Co., 14 I. C. C. 530, 531. (s) Where joint rates charged are found to be unreasonable and reparation awarded on the basis of tne lower rate against the initial carrier, no order will be entered prescribing the lower rate as the future joint rate where the con- necting carrier is not a party to the proceeding. Morti v. C. M. & St. P. Ry. Co., 13 L C. C. 513, 515. (t) Where connecting railroads en- ter into a valid contract with a shipper to transport grain from one state to another at a stipulated joint rate, in which agr3ement the proportion of such rate to be received by each road is specified, one of such roads cannot after- wards change the amount which it is to receive under such contract by join- ing with other connecting lines in es- tablishing a joint rate with them, by which it secures a larger sum for the transportation of similar freight between the same points named in the former agreement. K. C. S. Ry. Co. v. Albers Comm. Co., 79 Kan. 59, 59, 99 P. 819. (u) A rate on cement from lola, Kan., to Gila, Ariz., is found unreason- able to the extent that it exceeded a lower subsequently established rate to that point, at the time of shipment a lower combination based on Los Angeles being available. lola Portland Cement Co. V. M. K. & T. Ry. Co., Unrep. Op. 1. (v) A through rate on plow parts from Columbus, Ga., to points in Cali- fornia found unreasonable and ordered reduced. Columbus Iron Works v. C. of Ga. Ry. Co., Unrep. Op. 265. THROUGH ROUTES AND JOINT RATES, §13 (w)— §14 (i) 863 (w) A complaint against the class A rates, applying from Mississippi River crossings to the Missouri River cities as part of the through rates on laundry machinery and cream separators moving from Atlantic seaboard territory to the Missouri River, and praying for repara- tion, dismissed. Southwestern Laundry Machinery Co. v. W. R. R. Co., Unrep. Op. 477. (x) Rates found unreasonable because joint through rate in effect from stations on either side of station from which ship- ment moved and none from which ship- ment moved Reparation awarded, Jef- ferson Lumber Co. v. A. B. & A. R. R. Co., Unrep. Op. 534. §14. Divisions of Through Rates. See Discrimination, §5 (d); Divisions, §1 (a), (d), §4 (c); Evidence, §13 (2); Reasonableness of Rates, §2 (n); Tap Lines, §9 (c). (a) It is not intended to intimate tbat a short line should be confined in its division of joint rate to merely the amount which an application of the mile- age scale would produce. What is a fair division between carriers is to be determined upon the merits of each par- ticular case. In Re Advances on Meats and Packing-house Products, 23 I. C C. 656, 661. (b) A joint through rate, canceled as result of disagreement over divisions, or- dered to be established. Chamber of Commerce of Newport News v. S. Ry. Co., 23 L C. C. 345, 346. (c) Payment of allowances or divi- sions to a boat line, which is mere plant facility, held to be an unlawful rebate. Colonial Salt Co. v. M. I. & I. L., 23 I. C. C. 358, 368. (d) It is the aggregate charge with which the shipper is concerned and it is of little interest to him whether that ag- gregate be determined by joint rates or by combination of rates. Merchants' & Mfrs.' Ass'n v. P. R. R. Co., 23 I. C. C 474, 478. (e) Divisions of a through rate should be somewhat less than the local rate and cannot be used as a conclusive standard by which to measure the reasona'jleness of intermediate rates. Southern Illinois Millers' Ass'n v. L. & N. R. "I. Co., 23 L C. C. 672, 673. (f) Complainants sought reparation for damages assessed on coke in carloads from points in West Virginia and Penn- sylvania to El Paso, Tex., and Globe, Ariz. The rates collected were the joint through rates to El Paso and Globe and were not themselves complained of as un- reasonable. Complainants sought to re- cover on the ground that the carriers east of Chicago received as their divi- sion of the through rates a larger sum than they received on coke hauled from the points of origin in question to Chi- cago as a destination, HELD, a joint through rate is a unit, an entirety, with the divisions or component parts of which the public is not concerned, unless the joint rate as a whole is illegal. Only when the public or a shipper complains of the illegality of a joint through rate as a whole can one or more of the divi- sions of such rate be inquired into to de- termine if the illegality of the whole rate is traceable to the illegality of a specific part thereof. Copper Queen Consolidated Mining Co. v. B. & O. R. R. Co., 18 I. C. C. 154, 156. (g) Where the Commission orders a carrier to establish through routes and joint rates, it will not specify the con- necting carriers, but will leave defendant to negotiate with the various connecting carriers in such a manor as will enable it to best protect its own interest in se- curing divisions, so long as the rates and routes put into effect by it are rea- sonable. Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co., 15 L C. C. 460, 467. (h) It is the duty of the Commission in fixing the division of joint rates be- tween carriers under section 15 of the Act to take into consideration all the cir- cumstances, conditions and equities that are necessary to arrive at what is a fair and proper adjustment, and the division must not be made on a mileage or any other fixed basis. Star Grain & Lumber Co. V. A. T. & S. F. Ry. Co., 14 I. C. C. 364, 370. (i) Where a carrier not only reaches the lumber forests of a district, but also furnishes the local market which another carrier desires to reach, justice requires that no division of joint rates should be made that does not fully protect the reve- nues of the former, in so far as that can be done reasonably and without alto- gether overlooking the earnings of the latter, or withdrawing complainant retail- ers from their right of access to the mills of said district. Star Grain & Lumber 864 THROUGH ROUTES AND JOINT RATES, §15 (a) Co. V. A. T. & S. F. Ry. Co., 14 I. C. C. 364, 370. §15. Exceeding Combination of inter- mediates. See Comparative Rates; Discrimina- tion, §7 (n); Evidence, §13 (3), §13 (5), §28 (a), (c), (f), (g), (h); Mln- imums, §7 (ww) ; Passenger Fares and Facilities, §14 (li); Proportional Rates, I (j), IV (h), (I); Reason- ableness of Rates, §142 (a); Repara- tion, §16 (bbbb); Tariffs, §6 (g), (h). (a) A joint through rate in excess of the combination of locals published by the same carrier or carriers between the same points is prima facie unreasonable. R. R. Com. of Nev. v. N. C. O. Ry. Co., 22 I. C. C. 205, 210; McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349, 352; National League of Commission Mer- chants V. A. C. L. R. R. Co., 20 I. C. C. 132, 134; Caldwell v. C. L & L. Ry. Co., 20 I. C. C. 412; Rosenblatt & Sons v. C. & N. W. Ry. Co., 20 I. C. C. 447; Hartman Furniture & Carpet Co. v. C. R. I. & P. Ry. Co., 20 I. C. C. 496; Alpha Portland Cement Co. v. Penn R. R. Co., 20 L C. C. 640, 643; Bott Bros. Mfg. Co. V. C. B. & Q. R. R. Co., 19 I. C. C. 136; Greater Des Moines Commit- tee V. C. M. «& St. P. Ry. Co., 18 I. C. C. 73, 80; Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 18 L C. C. 144, 145; Stevens Grocer Co. v. G. R. & I. Ry. Co., 18 I. C. C. 147, 148; Windsor Turned Goods Co. v. C. & O. Ry. Co., 18 L C. C. 162; Noble v. V. S. & P. Ry. Co., 18 I. C. C. 224, 225; Ryan v. G. N. Ry. Co., 18 L C. C. 226, 227; Rosenblatt & Sons v. C. & N. W. Ry. Co., 18 I. C. C. 261, 262; Winona Carriage Co. V. Penn. R. R. Co., 18 1. C. C. 334, 335; Gund & Co. V. C. B. & Q. R. R. Co., 18 L C. C. 364, 369; Contact Process Co. V. N. Y. C. & St. L. R. R. Co., 17 I. C. C. 184; Awbrey & Semple v. G. H. & S. A. Ry. Co., 17 I. C. C. 267, 271; White Bros. V. A. T. & S. F. Ry. Co., 17 I. C. C. 288, 289; Kimberly v. C. & O. Ry. Co., 17 L C. C. 335, 336; Lindsay Bros. v. B. & O. S. W. R. R. Co., 16 I. C. C. 6, 8; Day- ton Chamber of Commerce v. C. M. & St. P. Ry. Co., 16 L C. C. 82, 83; Gilchrist V. L. E. & W. R. R. Co., 16 I. C. C. 318, 319; Wells-Higman Co. v. G. R. & I. Ry. Co., 16 I. C. C. 339; Scully Steel & Iron Co. V. L. S. & M. S. Ry. Co., 16 L C. C 358; Stock Yards Cotton & Linseed Meal Co. V. C. M. & St. P. Ry. Co., 16 I. C- C. 366, 3«7; Blodgett Milling Co. v C. M. & St. P. Ry. Co. 16 L C. C. 384; Barrett Mfg. Co. v. Graham & Morton Transportation Co., 16 I. C. C 399; Em- pire Oil Works v. C. M. & St. P. Ry. Co., 16 L C. C. 401; Kurtz v. Penn. R. R. Co., 16 I. C. C. 410; Lindsay Bros. v. G. R. & I. Ry. Co., 16 L C. C. 441, 442; Smith Mfg. Co. v. C. M. & G. Ry. Co., 16 L C. C. 447, 448; Humbird Lumber Co. V. N. P. Ry. Co., 16 I. C. C. 449; Car- lin's Sons Co. v. B. & O. R. R. Co., 16 L C. C. 477; Williams Co. v. V. S. & P. Ry. Co., 16 I. C. C. 482, 485; Lindsay Bros. V. M. C. R. R. Co., 15 L C. C. 40, 41; Lind- say Bros. V. G. R. & I. Ry. Co., 15 L C. C. 182, 183; Keich Mfg Co. v. St. L. & S. F. R. R. Co., 15 L C. C. 230, 231; Michi- gan Buggy Co. V. G. R. & I. Ry. Co., 15 I. C. C. 297, 299; Lindsay Bros. v. L. S. & M. S. Ry. Co., 15 I. C. C. 284, 285; Mat- thews Mfg. Co. V. Y. & M. V. R. R. Co., 15 I. C. C. 436, 438; Hartman Furniture f& Carpet Co. v. W. C. Ry. Co., 15 L C. C, 530, 531; Kindel v. N. Y. N. H. & H. R. R. Co, 15 I. C. C. 555, 558; American Cigar Co. V. C. M. & St. P. Ry. Co., 15 I. C. C. 618; Oshkosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109; Montgomery Freight Bureau v. Western Ry. of Ala., 14 L C. C. 150; Flaccus Glass Co. v. C. C. C. & St. L. Ry. Co., 14 L C. C. 333, 334; Montgomery Freight Bureau v. M. & O. R. R. Co., 14 I. C. C. 374, 375; Minneapolis Threshing Machine Co. v. C. M. & St. P. Rv. Co., 14 I. C. C. 536; Wilson V. C. M. & St. P. Ry. Co., 14 L C. C. 549; Sylvester v. Penn. R. R. Co. 14 L C. C. 573; Hardenberg, Dolson & Gray v. N. P. Ry. Co., 14 L C. C. 579; Momsen & Co. v. Gila Valley, Globe & Northern Ry. Co., 14 I. C. C. 614, 615; Laning-Harris Coal & Grain Co. v. M. P. Ry. Co., 13 L C. C. 154, 158; Coomes v. C. M. & St. P. Ry. Co., 13 I. C. C. 192, 194; Hy- draulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347; Marshall- Wells Hardware Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 10; American Cigar Co. V. L. S. & M. S. Ry. Co., Unrep. Op. 17; American Hide & Leather Co. v. Pa. Co., j Unrep. Op. 22; Anderson Vehicle Co. v. J L. S. & M. S. Ry. Co., Unrep. Op. 23; Clinton Bridge & Iron Works v. C. M & St. P. Ry. Co., Unrep. Op. 24; Interna- tional Harvester Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 26; Delray Salt Co. V. M. C. R. R. Co., Unrep. Op. 27; Minne- apolis Dry Goods Co. v. Wis. Cent. Ry. Co., Unrep. Op. 31; Armour Car Lines v. St. L. & S. F. R. R. Co., Unrep. Op. 32; Acme Cement Plaster Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 46; Kingman & Co. V. C. H. & D. Ry. Co., Unrep. Op. THROUGH ROUTES AND JOINT RATES, §15 (a) 865 53; Southern Sewer Pip€ Co. v. L. & N. R. R. Co., Unrep. Op. 54; Virginia-Caro- lina Chemical Co. v. S. A. L. Ry., Unrep. Op. 57; Menasha Woodenware Co. v. Wis. Cent. Ry. Co., Unrep. Op. 73, 74, 76; Menasha Woodenware Co. v. C. & N. W. Ry. Co., Unrep. Op. 75, 77; Seattle Frog & Switch Co. V. N. P. Ry. Co., Unrep. Op. 79; Union Match Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 80; Clemens Produce Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 101; Wilson v. O. R. & Nav. Co., Unrep. Op. 107; Shadbolt & Boyd Iron Co. V. C. I. & L. Ry. Co., Unrep. Op. 108; Vaughn Mfg. Co. v. P. C. C. & St. L. Ry. Co., Unrep. Op. 121; Pioneer Pole & Shaft Co. V. C. H. & D. Ry. Co., Unrep. Op. 123; Ryan & Newton v. S. P. Co., Unrep. Op. 127; National Sewing Machine Co. V. C. C. & L. R. R. Co., Unrep. Op. 129; Barlow v. M. P. Ry. Co., Unrep. Op. 134; Heinz Co. v. N. Y. C. & St. L. R. R. Co., Unrep. Op. 136; American Plow Co. V. P. M. R. R. Co., Unrep. Op. 144; Farm- ers' Handy Wagon Co. v. P. M. R. R. Co., Unrep. Op. 149; Scully Steel & Iron Co. V. C. M. & St. P. Ry. Co., Unrep Op. 156; Nitrate Agencies Co. v. I. C. R. R. Co., Unrep. Op. 163; Sunderland Bros. Co. v. C. B. & Q. R. R. Co., Unrep. Op. 165; Vote-Berger Co. v. Ft. W. C. & L. R. R. Co., Unrep. Op. 183; Stock Yards Cotton & Linseed Meal Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 213; American Plow Co. V. P. M. R. R. Co., Unrep. Op. 219; Stockbridge Elevator Co. v. A. A. R. R. Co., Unrep. Op. 221; Michael Bros. v. I. C. R. R. Co., Unrep. Op. 228; Jordan Co. V. C. B. & Q. R. R. Co., Unrep. Op. 233; Copper Queen Consolidated Mining Co. v. M. L. & T. R. R. & S. S. Co., Unrep. Op. 235; Heinz Co. v. P. M. R. R. Co., Unrep. Op. 236; Nehrbass Casket Co. v. P. C. C. & St. L. Ry. Co., Unrep. Op. 238; Watson Co. V. N. Y. C. & St. L. R. R. Co., Unrep. Op. 240; Miller & Co. v. G. H. & S. A. Ry. Co., Unrep. Op. 249; Menasha Wood- enware Co. V. W. C. Ry. Co., Unrep. Op. 252; Medberry Findeisen Co. v. C. & N. W. Ry. Co., Unrep. Op. 263; Noble v. T. St. L. & W. R. R. Co., Unrep. Op. 272; Fuller & Johnson Mfg. Co. v. C. & N. W. Ry. Co., Unrep. Op. 278; Dreyfus Bros. V. L. & N. R. R. Co., Unrep. Op. 281; Fitzsimmons-Palmer Co. v. L. & N. R. R. Co., Unrep. Op. 295; Fleisher (Inc.) v. L. H. & St. L. Ry. Co., Unrep. Op. 297; Red Wing Sewer Pipe Co. V. M. P. Ry. Co., Unrep. Op. 302; Benton v. St. L. & S. F. R. R. Co., Unrep. Op. 304; Johnston & Co. v. L. & N. R. R. Co., Unrep. Op. 308; Manitou Mineral Springs Co. v. D. & R. G. R. R. Co., Un- rep. Op. 312; Rosenblatt v. O. R. R. & Nav. Co., Unrep. Op. 314; Rassman v. C. M. & St. P. Ry. Co., Unrep. Op. 316; Ber- lin Machine Works v. B. & O. S. W. R. R. Co., Unrep. Op. 321; Fuller & Johnson Mfg. Co. V. C. H. & D. Ry. Co., Unrep. Op. 324; Rosenblatt & Sons v. C. M. & St. P. Ry. Co., Unrep. Op. 325; Standard Oil Co. V. B. & O. C. T. R. R. Co., Unrep. Op. 335; Stacy & Sons v. C. B. & Q. R. R. Co., Unrep. Op. 343; Dian Lumber Co. V. P. & N. W. R. R. Co., Unrep. Op. 347; Northern California Lumber Co. v. S. P. Co., Unrep. Op. 353; International Purchasing Co. v. N. O. & N. E. R. R. Co., Unrep. Op. 374; Underwood Veneer Co. V. C. M. & St. P. Ry. Co., Unrep. Op. 376; Ludowici-Celadon Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 386; Voss-Barbee Mfg. Co. V. E. R. R. Co., Unrep. Op. 388; Galesburg Grocery Co. v. C. B. & Q. R. R. Co., Unrep. Op. 393; Southern Iron & Equipment Co. v. L. & N. R. R. Co., Un- rep. Op. 397; Marion Guano Co. v. C. C. C. & St. L. Ry. Co., Unrep. Op. 406; Humboldt Brick Mfg. Co. v. C. B. & Q. R. R. Co., Unrep. Op. 409; Williams & Voris Lumber Co. v. L. & N. R. R. Co., Unrep. Op. 413; Old Dominion Copper Mining & Smelting Co. of Ariz. v. N. O- Ry. Co., Unrep. Op. 416; Menasha Wood- enware Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 424; Chesnutt Lumber Co. v. L. & N. R. R. Co., Unrep. Op. 440; Ludo- wici-Celadon Co. V. A, T. & S. F. Ry. Co., Unrep. Op. 447; Central Commercial Co. V. L. & N. R. R. Co., Unrep. Op. 448; Western Lime & Cement Co. v. M. St. P. & S. Ste. M. Ry. Co., Unrep. Op. 456; American Lumber & Mfg. Co. v. L. Ry. & Nav. Co., Unrep. Op. 470; Rehberg & Co. V. N. & W. Ry. Co., Unrep. Op. 479; Young & Vann Supply Co. v. L. C: N. R. R. Co., Unrep. Op. 480; Dawson Bros. v. A. T. & S. F. Ry. Co., Unrep. Op. 486; Lindsay Bros. v. G. R. & I. Ry. Co., Un- rep. Op. 489; Gund Brewing Co. v. C M. & St. P. Ry. Co., Unrep. Op. 501, Stand- ard Oil Co. V. E. J. & E. Ry. Co., Unrep. Op. 502; Arkansas Fertilizer Co. v. B. & O. R. R. Co., Unrep. Op. 507; American Milling Co. v. L. H. & St. L. Ry. Co., Unrep. Op. 515; Dowd Knife Works v. M. C. & C. R. R. Co., Unrep. Op. 523; Arizona Ry. Com. v. E. P. & S. W. Co., Unrsp. Op. 526; Gulf Coast Cotton Oil & Refining Co. v. N. O. & N. E. 11. R. Co., Unrep. Op. 532; Hunt v. L. & N. R. R. Co., Unrep. Op. 536; Janesville Barb Wire 866 THROUGH ROUTES AND JOINT RATES, §15 (b)— (j) Co. V. C. & N. W. Ry. Co., Unrep. Op. 537; Anheuser-Busch Brewing Ass'n v. E. P. & S. W. Co., Unrep. Op. 547; Baiid Lum- ber Co. V. L. & N. R. R. Co., Unrep. Op. 549; De Camp Fuel Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 556; Columbian Iron Works V. A. G. S. R. R. Co., Unrep. Op. 557; Dickinson & Co. v. K. & M. Ry. Co., Unrep. Op. 587; Phillips Co. v. G. T. W. Ry. Co., Unrep. Op. 590; Vincennes Bridge Co. v. B. & O. S. W. R. R. Co., Unrep. Op. 597; Walsh & Weidner Brew- ing Boiler Co. v. A. G. S. R. R. Co., Unrep. Op. 598. (b) Complainants in January, 1908, shipped one carload of oats weighing 40,990 lbs. from Hurley, S. D., to Chi- cago, 111., routing the same via Sioux City, la., for cleaning in transit there. For such a shipment there was a joint rate of 18c per 100 lbs. After arrival of the car at Sioux City complainants ordered defendants to ship the oats through to Chicago without cleaning at Sioux City. At Chicago charges were assessed on the basis of a rate of 14c to Sioux City plus a rate of 17c from Sioux City to Chicago. HELD, the total charges collected should have been upon the basis of 18c per 100 lbs., Hur- ley to Chicago, plus a reconsignment charge of $2. Reparation awarded. In- terstate Grain Co. v. C. & N. W. Ry. Co., 22 L C. C. 34, 35. (c) A through rate may properly be less than the sum of the locals, although the cDst of the service is the same, if the lower through rate is forced by com- petition which does not affect the local rates. R. R. Com. of Nev. v. N. C. O. Ry. Co., 22 I. C. C 205, 210. (d) It is a matter of every-day obser- vation that a through rate may prop- erly be less than the sum of the locals. Railroad Commission of Nevada v. N. C. O. Ry. & S. V. Ry. Co., 22 I. C. C. 205, 210. (e) Carload rates of 37c and 39c on hardwood lumber from North Birming- ham, Ala., to Philadelphia, Pa., and New Brunswick, N. J., were alleged unreason- able and discriminatory in so far as the rate on yellow pine was 29c and 31c. The local rates from Cincinnati to Phila- delphia and New Brunswick were 17c and 19c, and these rates applied to both woods without distinction. The rate from North Birmingham to Cincinnati was 18c for yellow pine and 20c for hardwood. HELD, since carriers north of Cincinnati made no distinction, and defendant carrier made a difference of only 2c in its local rate to Cincinnati, the carriers cannot make the joint rate higher by more than the difference in the locals south of Cincinnati. McLean Lumber Co. v. L. & N. R. R. Co., 22 I. C. C. 349, 352. (f) Through rates should not be con- structed by using the full combination of locals. Bluefield Shippers' Asso. v. N. & W. Ry. Co., 22 I. C. C. 519, 532. (g) Through rates on perishable produce from Charlestown to Buffalo or to Pittsburgh which are higher than tho aggregate of the intermediate rates based upon Baltimore are not justified. League of Commission Merchants v. A. C. L. R. R. Co., 20 I. C. C. 132, 134. (h) A through rate in excess of the combination of locals is not justified by water competition. National League of Commission Merchants of U. S. v. A. C. L. R. R. Co., 20 I. C. C. 132, 134. (i) Complainant shipped wooden tank material from Louisville, Ky., to Shawano, Wis. Also from Louisville, Ky., to Combined Locks, Wis. Also from Louisville, Ky., to West Port Ar- thur, Tex. The rate collected exceeded the sum of the combined intermediate rates. HELD, the charges exacted were unjust, and the through rate should not have been in excess of the contempo- raneous combination of intermediate rates. Reparation awarded. Caldwell Co. V. C. I. & L. Ry. Co., 20 I. C. C. 412. (j) Complainant shipped a carload of triplex cloth from Ft. Wayne, Ind., to Beloit, Wis., billed as "cotton piece goods," under the through first-class rate of 76c per 100 lbs. applicable under the Official Classification on dry goods, n. o. s. Triplex cloth is frequently made up of woolen or silk material, or partly of wool and partly of cotton. This par- ticular cloth consisted of a fabric made up of a layer of cotton goods and a layer of cotton shoddy lining, held firmly together by means of an intermediate layer of reclaimed rubber. The through rate exacted was greater than the sum of the intermediate rates. HELD, that triplex cloth, generally speaking, need not take the same rate as applied on cotton piece goods, but may properly take the rate applied to other dry goods, n. o. s. Reparation awarded to the ex- THROUGH ROUTES AND JOINT RATES, §15 (k)— (s) 867 tent that the charges exacted exceeded the combination of the intermediate rates. The Commission again suggests that the through class rates of the de- fendant in this general territory stand in need of revision, because in many in- stances they exceed the Chicago com- bination. Rosenblatt & Sons v. C. & N. W. Ry. Co., 20 I. C. C. 447. (k) Complainant shipped a carload of chairs from Malvern, Ark., to Mil- waukee, Wis., under a rate of 49c per 100 lbs. The shipment could have moved via Cairo on a combination of local rates of 39c instead of via Thebes. Subsequently a through rate of 39c v^as established via either Cairo or Thebes. HELD, the rate exacted was unjust to the extent it exceeded 39c per 100 lbs. Reparation awarded. Hartman Furniture & Carpet Co. v. C. R. I. & P. Ry. Co., 20 I. C. C. 496. (1) A joint rate, filed with the Com- mission, but not posted, held unreason- able to the extent it exceeded the com- bination rate. Alpha Portland Cement Co. V. Penn. R. R. Co., 20 I. C. C. 640, 648. (m) A joint through rate in excess of the combination of locals will be pre- sumed unreasonable, though variable minima are applicable to the locals. Lull Carriage Co. v. C. K. & S. Ry. Co., 19 L C. C. 15. (n) Complainant shipped, all rail, a carload of cutters from Kalamazoo, Mich., to Fond du Lac, Wis., under the through joint class rate of 55c per xOO lbs. via Chicago. Contemporaneously there was a rate from Kalamazoo to Fond du Lac via Milwaukee of 24i^c via the ''across lake route" (Lake Mich- igan). HELD, this case does not pre- sent a combination of locals lower than the througix rate on which the presump- tion obtains that the through rate was unreasonable. Reparation denied. Lull Carriage Co. v. C. K. & S. Ry. Co., 19 I. C. C. 15, 17. (o) Ordinarily a through rate for a long haul should be less than the sum of the locals. Bott Bros. Mfg. Co. v. C. B. & Q. R. R. Co., 19 L C. C. 136, 137. (p) Complainant attacked the rates on staves from Harrisburg, Paragould, Jonesboro, Brinkley, Clarendon, Little Rock, Pine Bluff, Fordyce, Stephens, Camden, Texarkana, Ark., and Maiden, Mo., to Alexandria, Mo., and Keokuk, la. For 15 years prior to September, 1908, the defendants maintained a joint through rate of 17c per 100 lbs. between Harrisburg and Alexandria, under which the complainant transported this traffic. The joint rate was then canceled, and the combination local rate of 19c ex- acted. The distance is 422 miles, which, under a rate of 17c, yields a ton-mile revenue of 8 mills. The M. P. R. R., a defendant, maintained from Alexandria to Kansas City, a distance of 539 miles, a rate of 16c; to St. Joe, a distance of 607 miles, a rate of 17c. The ratea from the other points have been vari- ously advanced, ranging from 2c to 5c over what they had been for some seven years prior to the date of the advance. HELD, that ordinarily a through rate for a long haul should be less than the sum of the locals, and that a ton- mile revenue of 8 mills for this com- modity, which is substantially lumber, cannot be pronounced low, and that a through route and joint rate should be established from Harrisburg to Alex- andria under a rate not exceeding 17c per 100 lbs.; that the rates from Maiden, Mo., Paragould, Ark., and Jonesboro, Ark., to Alexandria, Mo., are unreason- able to the extent they exceed 15c, 17c and 17c per WO lbs., respectively. Repara- tion awarded. Bott Bros. Mfg. Co. v. C. B. & Q. R. R. Co., 19 L C. C. 136. (q) Complainant shipped one top freight wagon and springs, knocked down and crated, but with standing top, weighing 1,300 lbs., from Wagon Works station, Toledo, O., to Watertown, Wis., under a joint through rate of $2.31 per 100 lbs. At the same time the combina- tion rate on Chicago was $1.8432 per 100 lbs. HELD, reparation should be awarded for the amount assessed in excess of the combination rates via the same routes. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 18 L C. C. 144, 145. (r) Complainant shipped a carload of farm wagons from Toledo, O., to Cedar- burg, Wis., under a joint rate of 28c per 100 lbs. At the same time the combina- tion on Milwaukee was 23(f per 100 lbs. HELD, the joint rate was unjust and unreasonable to the extent that it ex- ceeded the combination rate. Combina- tion rate prescribed for the future as a reasonable rate. Reparation awarded. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 18 L C. C. 144, 145. (s) On 100 bags of beans from Grand Rapids, Mich., to Newport, Ark., com- 868 THROUGH ROUTES AND JOINT RATES, §15 (t)— (y) plainant was charged the through rate of 82c per 100 lbs. The shipment moved via East St. Louis. The through rate between the points in question was the same via either St. Louis, East St. Louis, Memphis or Cairo. The combina- tion of locals based on Cairo was 68c at the time shipment moved. Some of defendants admitted, and none of them denied, that the rate assessed was un- reasonable. HELD, the through rate exacted, being in excess of the sum of the locals and unexplained, was unrea- sonable. Reparation awarded. Stevens Grocery Co. v. G. R. & I. Ry. Co., 18 L C. C. 147, 148. (t) Some time since the Commission announced the rule that it would con- sider a joint through rate prima facie unreasonable if it exceeded the ship- ment of the local rates between the same points. It has since become nec- essary, in order to do more complete justice, to extend the application of the rule so that, except in special and un- usual circumstances, and respecting fully the limitations placed in tariffs upon the use of basing, proportional or arbitrary rates, the fair measure of the reasonableness of a joiEt through rate that exceeds the combination between the same points via the same route is the lowest combination that would law- fully apply if the joint through rate were canceled. Windsor Turned Goods Co. V. C. & O. Ry. Co., 18 I. C. C. 162, 164. (u) Defendant carriers had in effect joint rates on hardwood lumber from various points in West Virginia and Kentucky to Detroit, and arbitrary rates of 2c to be added to the Detroit rates on through shipments of lumber to Windsor, which were available in the absence of a joint through rate from point of origin to Windsor. The joint through rates to Windsor exceeded the combinations of the joint rates to De- troit plus the arbitrary from Detroit to Windsor. Defendants offered no evi- dence to justify this situation. Subse- quent to the shipments in question joint through rates were voluntarily estab- lished equal to the combination of rates to Detroit plus the arbitrary to Wind- sor. HELD, the joint through rates to Windsor were unreasonable to the ex- tent that they exceeded the rates to De- troit plus the arbitrary of 2c from De- troit to Windsor. Reparation awarded. Windsor Turned Goods Co. v. C. & O. Ry. Co., 18 I. C. C. 162, 164. (v) On coiled elm hoops in carloads from Tallulah, La., to Lime City, Tex., a rate of 30c was collected. The com- bination of locals based on Shreveport in effect at the time of the shipment was 26%c. About a year prior to the shipment a rate of 20c was in effect, which was canceled. HELD, the rate charged was unreasonable because in ex- cess of the combination rate. Reparation awarded on the basis of 26%c, carload minimum 30,000 lbs. Noble v. V. S. & P. Ry. Co., 18 I. C. C. 224, 225. (w) On a carload of dried fruit in boxes, weighing 26,320 lbs., from San Francisco, Cal., to Chinook, Mont., complainant was assessed the fourth class rate of $1.59, minimum 30,000 lbs. At the time of shipment a combination rate of $1.15 was in effect, made up of $1, minimum 24,- 000 lbs., from San Francisco to Havre, Mont., and of 15c, minimum 30,000 lbs., Havre to Chinook. Subsequent to the shipment, defendants published a through rate of $1.10, minimum 30,000 lbs., from San Francisco to Mondak, Mont., a local point on the same line 265 miles farther distant from Chinook than San Francisco. HELD, the rate attacked was unreason- able to the extent that it exceeded the combination rate of $1.15. Reparation awarded on the basis of $1.15. Carriers ordered to maintain the $1.10 rate, mini- mum 30,000 lbs., for the future. Ryan v. Gt. N. Ry. Co., 18 L C. C. 226, 227. (x) On cotton overalls and jackets from Michigan City to Beloit, Wis., in less than carloads a joint through class rate of 67c was collected. At the same time a combination rate of 51.16c was in effect, based on Chicago. No evidence was offered by defendant to justify the rate exacted. HELD, the rate charged being in excess of the sum of the locals, was presumed to be unreasonable. Rep- aration awarded. Rosenblatt v. C. & N. W. Ry. Co., 18 L C. C. 261, 262. (y) On less-than-carload shipments of cotton duck cloth from Cincinnati to Be- loit, Wis., the through class rate of 60c was collected. At the time a local rate from Cincinnati to Chicago of 29c added to a rate of 15c beyond made a com- bination of 44c. HELD, the through rate, being in excess of the combination of locals, was unreasonable. Reparation awarded on the basis of 44c. Rosenblatt V. C. & N. W. Ry. Co., 18 I. C. C. 261, 262. THROUGH ROUTES AND JOINT RATES, §15 (z) — (gg) (z) On less-than-carload shipments of cotton drills from Wheeling, Va., to Be- loit. Wis., a joint through class rate of 63c was collected. The combination of locals based on Chicago was 48c, one factor of which being a local commodity rate of 15c from Chicago to Beloit, which, however, was applicable on "cotton ducks, denims and shirtings," but did not spe- cifically apply to cotton drills. About two years after the shipments in ques tion, defendants being uncertain as to whether the said 15c rate should apply to cotton drills, revised their tariffs so as to make the through rate correspond exactly with the combination rate from Wheeling to Beloit. HELD, the through rate charged, being in excess of the lo- cals, was unreasonable. Reparation awarded on the basis of the combination rate. Rosenblatt v. C. & N. W. Ry. Co., 18 I. C. C. R. 261, 263. (aa) A through L. C. L. rate, equal to the combination of L. C. L. rates, but higher than the combination of C. L. and L. C. L. rates is not unlawful. Winona Carriage Co. v. P. R. R. Co., 18 I. C. C. 334. (bb) Complainant attacked the less- than-carload rate on bar steel from Johns- town. Pa., to Winona. Wis., shipments weighing 22.060 lbs. and 21,105 lbs. The less-than-carload rate from Johnstown to Chicago was 23c and from Chicago to Winona 23c, making the combination of 46c. Under this rate, defendants were required to unload the traffic in Chicago, transfer from the eastern to the western car and reload. The carload rate was made up of a combination rate of lO^/^c. 3G,000 lbs. minimum, from Johnstown to Chicago, and 10c, 30,000 lbs., from Chi- cago to Winona. Under the carload rate the shipper must load his traffic at Chi- cago. Complainant contended the rate exacted to be unreasonable to the ex- tent that it exceeded the combination of 33c made up of the less-than-carload rate of 23c, Johnstown to Chicago, and the carload rate of 10c, Chicago to Winona. No evidence was offered of the unreason- ableness of the rate attacked. HELD. the rate exacted was not shown to be unreasonable. A through charge on the shipment based on a less-than-carload rate between points of origin and destina- tion is not shown to be unreasonable by the fact that it exceeds the sum of The charges on a similar shipment based on a less-than-carload rate from the point of origin to an intermediate junc- tion point plus the charge based on a carload rate from such intermediate junction point to destination. Winona Carriage Co. v. Penn. R. R. Co., 18 I. C. C. 334, 335. (cc) In the absence of a justifying ex- planation a through rate in excess of the sum of the locals applicable to the same traffic over the same route is unreason- able. Winona Carriage Co. v. Penn. R. R. Co., 18 I. C. C. 334, 335. (dd) Where traffic is shipped over a certain routes to a point, and shipped out from that point, moving from point of origin to destination under substantially similar circumstances and conditions with respect of the through rate and the combination, the lower combination rate than the through rate is prima facie un- reasonable. Winona Carriage Co. v. Penn. R. R. Co., 18 I. C. C. 334, 335. (ee) Unless the service is the same, the locals cannot constitute the measure of the through charge. Winona Carriage Co. V. Penn. R. R. Co., 18 I. C. C. 334, 336. (ff) A through rate regularly pub- lished between two points and available under the tariff over several different routes is not nullified as to one such route by the failure of participating car- riers to agree upon divisions over that route. Germain Co. v. N. O. & N. E. R. R. Co., 17 L C. C. 22, 24. (gg) On a tank car of sulphuric acid from Buffalo, N. Y., to Tulsa, Okla., com- plainant was assessed 85c per 100 lbs., based upon a local rate of 20c from Buf- falo to East St. Louis, and the joint through rate of 65c from Fast St. Louis to Tulsa. After the date of shipment the 65c rate was reduced to 30c. At the time of shipment there was in effect a local rate of 10c from East St. Louis to Kansas City, and a local rate of 20c from Kansas City to Tulsa, making a total rate of 50c from point of origin to destination. Defend- ants' rule provided that if no specific rate from point of origin to destination of a through shipment was named, and no spe- cific manner of constructing a combina- tion rate for it was prescribed, the low- est combination of rates applicable via the route over which the shipment moved was the lawful rate. Defendants did not provide in their tariffs the method of constructing the combination rate be- tween the points in question, and no spe- cific joint through rate was in effect. 870 THROUGH ROUTES AND JOINT RATES, §15 (hh)— (oo) HELD, th€ charges assessed were un- reasonable Reparation awarded on the basis of the combination of 50c. Con- tact Process Co. v. N. Y. C. & St. L. R. R. Co., 17 I. C. C. 184. (hh) In absence of a joint through rate, the lowest combination should be applied on shipments into Mexico. Au- brey & Semple v. G. H. & S. A. Ry. Co., 17 I. C. C. 267, 272. (ii) Even though a given combination is brought about by competitive condi- tions inducing the establishment of the factors constituting the same, in the ab- sence of facts to the contrary there would seem to be but little ground for claiming that a through rate should exceed that combination. Awbrey & Semple v. G. H. & S. A. Ry. Co., 17 I. C. C. 267, 271. ( jjkk) On carloads of cement from Gal- veston, Tex., to Magdalena, Mexico, com- plainant was assessed a rate of $1.00 per 100 lbs. Guaymas, Mexico, is located on the Gulf of California; Magdalena is an intermediate point between Nogales, Ariz., and Guaymas, Mex. At the time of shipments, no through rate was in ef- fect from Galveston to Magdalena. The rate from Galveston to Los Angeles, Cal., was 75c and applied to Guaymas, but not to intermediate points. The rate from Guaymas to Magdalena was made by add- ing the local rate, Guaymas to Mag- dalena, to the through rate to Guaymas. The local rates from Guaymas to Mag- dalena were not on file with the Com- mission. About the . time shipments moved, the 75c rate from Galveston to Los Angeles was changed to 353, leaving the 75c rate in force to Guaymas. At the time of the hearing, Los Angeles and Guaymas took the same rates on many commodities from Galveston. The Santa Fe lines and S. P. Co., on shipments from Kansas City and lola, Kan., and other points to Los Angeles, were compelled to cut the 75c rate to 35c in order to meet the competition of another carrier. The 35c rate was also forced by the ocean carriers operating from New York to the Pacific coast. The rate from New York to Guaymas and Los Angeles was 40c all-rail and rail-and-water. No water competition existed between Galveston and Guaymas and the 75c rate between said point appeared to be free from com- petitive influences. The rate from Napa Junction, Cal., through Nogales to Guay- mas, was 50c, due to steamship compe- tition. Defendants published a rate of 621/^c from Galveston to Nogales, Ariz. The local rate from Nogales to Magda- lena was 6c, established by the Mexican government, but not on file with the Commission. Complainant might have shipped to Nogales at 62i^c, and then reshipped to Magdalena for 6c, making a combination of 68i/^c. Defendants of- fered no evidence to show the €c rate from Nogales to Magdalena was unremu- nerative. Complainant contended that it should be allowed a 35c through rate to Guaymas plus a 25c local rate from Guaymas to Magdalena, making a total rate from Galveston to Magdalena of 60c. HELD, the evidence did not warrant the application of a 35c rate from Galveston to Guaymas, but the charge should not have exceeded the combination of 68V2C on Nogales. Reparation awarded on the basis of the 62i^c rate to Nogales. Aw- brey & Semple v. G. H. & S. A. Ry. Co., 17 I. C. C. 267, 271. (11) Complainant attacked the through rate of 85c on hardwood lumber from points east of the Mississippi River to San Francisco as exceeding the com- bination of locals. No other evidence of unreasonableness was offered. HELD, that while through rates between points should not exceed the combination of lo- cals ordinarily, this is not a universal rule, especially in the case of common rates from points in each of contiguous group territories, and that the case was not controlled by Burgess v. T. F. B., 13 I. C. C. 668. Reparation denied. White Bros. V. A. T. & S. F. Ry. Co., 17 I. C. C. 288, 289. (mm) A carrier voluntarily establish- ing a through rate less than the sum of the locals after shipment has moved does not, ipso facto, become liable for the difference between the amount charged and the amount which would have been collected if the through rate had been in effect at the time of the movement. Stock Yards Cotton & Linseed Meal Co. v. M. K. & T. Ry. Co., 17 I. C. C. 295. (nn) The through rate should seldom, if ever, for competitive reasons, exceed the combination. Kimberly v. C. & O. Ry. Co., 17 L C. C. 335, 336. (00) Complainant was assessed 15c per 100 lbs. on carloads of corn from Cincinnati to Morehead, Ky., via the de- fendant C. & O. Ry. Defendant's main line extends from Cincinnati in a south- easterly direction to Ashland. A branch extends from Ashland in a southwesterly THROUGH ROUTES AND JOINT RATES, §15 (pp)— (uu) 871 direction to Winchester. Morehead lies on it between Ashland and Winchester, and Mount Sterling lies between Morehead and Winchester. The L. & N. R. R. extends from Cincinnati to Winchester, thus form- ing, with the lines of defendant, a rough triangle, Cincinnati, Ashland and Win- chester being the vertices of same. The sum of the locals over defendant's line between the points in question was 14c. Defendant contended that the local rate of 71/^c from Cincinnati to Ashland was forced by water competition, not appli- cable at Morehead. Defendant's rate to Mt, Sterling was 10c. The rate over the L. & N. R. R., via Winchester to Mount Sterling, was 12c. Defendant contended that it was compelled to maintain the 10c rate to Mount Sterling in order to meet competition over the L. & N. R. R., the rate over the L. & N. R. R. from Cincin- nati to Winchester being 8c and wagon competition being in effect between Win- chester and Mount Sterling. HELD, the rate between the points in question should not have exceeded the combina- tion of the locals of 14c. Reparation awarded. Kimberly v. C. & O. Ry. Co., 17 I. C. C. 335, 336. (pp) Complainant was assessed 29c on vehicles shipped from Lawrenceburg, Ind., via Chicago to Milwaukee, Wis. The sum of the locals was 25i/^c. The local to Chicago was 17c, and there was a 5c proportional from Chicago to Milwaukee on a through published rate of 22c on shipments to Milwaukee originating east of the Illinois-Indiana state line. The 22c rate did not, however, apply to Law- renceburg. HELD, complainant was en- titled to reparation on the basis of the 251/^0 rate and not on the basis of the 22c rate, despite the fact that shortly after the shipment in question defend- ants temporarily established a joint through rate of 22c between the points in question, which was subsequently can- celed. Lindsay Bros. v. B. & O S. W. R. R. Co., 16 L C. C. 6, 8. (qq) Where the through rate exceeds the sum of the locals, the sum of the lo- cals then in effect is the true and proper measure of the reasonableness of the through rate then in effect. Lindsay Bros. V. B. & O. S. W. R. R. Co., 16 I. C. C. 6, 9. (rr) Where the combination of local rates from Austin, Minn., to Dayton, O., on non-edible grease is 29.1c per 100 lbs., and defendant carriers admit that 25c per hundred pounds is a reasonable rate, a through charge of 33i^c is excessive; plaintiff is entitled to reparation on the basis of the 25c rate; and it is found to b€ a reasonable rate for the future. Day- ton Chamber of Commerce vs. C. M. & St. P. Ry. Co., 16 L C. C. 82, 83. (ss) On a carload of oil well supplies and pipe from Fishers, Ind., to Bartles- ville, Okla., complainant was assessed 74c, the published through rate between these points. A rate of 45c was in effect from St. Louis to Bartlesville. A fifth class rate of 13%c was in effect from Fishers to St. Louis, but the tariff estab- lishing it did not include pipe as fifth class. This fifth class rate, however, applied on iron pipe in carloads, and the classification rules provided that articles taking the same rating might be carried in mixed carloads, and the rate applied to the actual weight thereof, if not less than the minimum prescribed for the re- spective shipments. The same minimum applied to both oil well supplies and iron pipe, and the shipment in question exceeded such minimum. HELD, the rate assessed was unreasonable as ex- ceeding the combination of locals amounting to 58i^c. Reparation award- ed. Gilchrist vs. L. E. & W. R. R. Co., 16 L C. C. 318, 319. (tt) Complainant being charged a rate of 301/^0 on fruit baskets from Trav- erse City, Mich., to Montrose, la., the combination of locals being 19c via Chi- cago, and defendants offering no evi- dence to show the rate charged reason- able, it is declared to be unreasonable. Reparation awarded on the basis of 19c. Wells-Higman Co. v. G. R. & I. Ry. Co., 16 L C. C. 339. (uu) December 7, 1907, complainant shipped carloads of steel from Buffalo, N. Y., to Watertown, Wis., and was as- sessed the published through rate of 30c. At the same time the combination rate was 211/^c between these points; 16^c Buffalo to Chicago, 5c Chicago to Water- town. January 9, 1907, defendants estab- lished a through rate of 21i^c between Buffalo and Watertown. July 1, 1907, the rate from Bi^ffalo to Chicago was ad- vanced from 16% to 18c, and the joint through rate, Buffalo to Watertown, in- creased to 23c, this advance being due to a general increase in rates on steel prod- ducts from the east to Chicago. HELD, following the general rule that in the absence of satisfactory explanation a 872 THROUGH ROUTES AND JOINT RATES, §15 (vv)— (eee) through rate in excess of the combina- tion of the locals is unreasonable, repa- ration should be awarded on the basis of 21i^c. Scully Steel & Iron Co. vs. L. S. & M. S. Ry. Co., 16 I. C. C. 358. (vv) On a shipment of oil meal from Minneapolis to Milo, Mo., via Kansas City, complainant attempted to secure the combination rate, which was lower than the through joint rate, by billing the shipment first to Kansas City, and then requesting the initial carrier to col- lect the charges up to Kansas City, de- liver the car to the connecting carrier for carriage to Milo, and to secure a new bill of lading from Kansas City to Milo. The initial carrier corrected the billing to read from Kansas City to Milo, and ap- plied the through rate. HELD, defend- ant initial carrier's action was proper, as a shipper cannot defeat the applica- tion of a joint through rate by consti- tuting the carrier its agent to collect charges up to the junction point and re- ship the traffic to final destination. Stock Yards Cotton & Linseed Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 366, 367. (ww) On a carload of oil meal from Minneapolis to Milo, Mo., complainant was assessed the only joint through rate applicable, 33i/^c. The combination of local rates based on Kansas City via the same route over which the shipment moved was 18c. HELD, the rate charged was unreasonable. Reparation awarded on the basis of 18c. Stock Yards Cot- ton & Linseed Meal Co. vs. C. M. &. St. P. Ry. Co., 16 I. C. C. 366, 367. (xx) On a carload of buckwheat from Cattaraugus, N. Y., to Janesville, Wis., complainant was assessed 27l^c, the combination of local rates in effect at the same time over the same route being 20c. HELD, the charge was unreason- able. Reparation awarded. Blodgett Milling Co. vs. C. M. & St. P. Ry. Co., 16 L C. C. 384. (yy) On a shipment of building paper from St. Joseph, Mich., to Wausau, Wis., defendants assessed the joint rate of 21c under a misapprehension of their tariffs, whereas the legal rate in effect at the time was the combination of local rates, 14c, which rate was in effect via another route. HELD, the rate charged was un- reasonable. Reparation awarded on the basis of 14c. Barrett Mfg. Co. vs. Gra- ham & Morton Transportation Co., 16 I. C. C. 399. (zz) On a carload of gasoline shipped from Reno, Pa., to Milton Junction, Wis., complainant was charged a rate of 33i/^c, that being the established joint rate. The combination of locals on Milwaukee via this route at the date of shipment was 21c. Shortly after the shipment, de- fendants established a joint through rate of 21c. HELD, the rate charged was un- reasonable. Reparation awarded on the basis of the 21c rate. Empire Oil Works vs. C. M. & St. P. Ry. Co., 16 I. C. C. 401. (aaa) It is the almost invariable rule of the Commission that the throueh charge must not exceed the combination of locals. Kurtz vs. Penn. Co., 16 I. C. C. 410. (bbb) No reason why, if $1 is a just charge from New Castle, Pa., to Pittsburgh for local service, a higher rate should be charged for through transportation. Kurtz v. Penn. Co., 16 I. C. C. 410, 415. (ccc) On shipments of boilers and parts from Kalamazoo, Mich., to Blue Mounds, Wis., and to Mount Horeb, Wis., complainants were assessed the joint through class rate of 65c. The combination of locals, based upon Chi- cago or Milwaukee, was 52i/^c. One shipment moved G. R. & I. Ry., G. T. W. Ry. ard C. & N. W. Ry.; the other G. R. & I. Ry., P. M. R. R. and C. & N. W. Ry. HELD, the charge was unrea- sonable. Reparation awarded on the basis of 52i^c. Lindsay Bros. v. G. R. & L Ry. Co., 16 I. C. C. 441, 442. (ddd) On shipments of carloads of manure spreaders from De Kalb, 111., to Olivia, Minn., complainant was charged 33c. The combination of locals was 30.3c. On shipments from De Kalb to Hutchinson, Minn., the rate assessed was 29c per hundred pounds. The combination of locals was 27.2c. Defendants offered no evidence to jus- tify the higher rates. HELD, they were unreasonable. Reparation awarded. Ordered to maintain the lower rates in the future. Smith Mfg. Co. v. C. M. & G. Ry. Co., 16 I. C. C. 447, 448. (eee) On carloads of cedar posts from Humbird, Idaho, to Basin, Wyo., complainant was assessed the joint rate of 56c. On a carload of lumber from Kootenay Spur, Idaho, to Basin Wyo., it was assessed the same rate. At the time of shipment the combina- tion of locals via Billings was 46i/^c. THROUGH ROUTES AND JOINT RATES, §15 (fff)— (jjj) 873 On a carload of cedar posts from Sagle, Ida., to Garland, Wyo., complainant was assessed 53c, At the time of ship- ment the combination, of locals via Sand Point and Billings of ilVzC was in effect. Since these shipments th€ carriers published, as the result of an order of the Commission in Potlatch Lumber Co. v. N. P. Ry. Co., 14 I. C. C. 41, a rate of 50c on lumber other than cedar from Kootenay to Basin; 54c on cedar posts, Humbird to Basin, and 52c, Sagle to Garland. HELD, the rates assessed were unreasonable. Rep- aration awarded on the basis of the newly established rates. Humbird Lum- ber Co. V. N. P. Ry. Co., 16 I. C. C. 449. (fff) On a carload of machinery from Allegheny, Pa., to Victoria Mines, Ont., Canada, via Painesville, O., and Buffalo, a rate of 48c was assessed. At the time of shipment the combina- tion of locals between these points via Buffalo, and over other carriers, was 40c. One year after the shipment in question defendants published a joint through rate between the points in question of 40c. HELD, the 48c rate was unreasonable. Reparation awarded on the basis of the 4uc rate. Car- lin's Sons Co. v. B. & O. R. R. Co., 16 1. C. C. 477. (ggg) That the through rate should not exceed the sum of the locals is a doctrine well established, but it does not follow as a corollary that the sum of the locals should always be reduced to equal the through rates. Williams Co. v. V. S. & P. Ry. Co., 16 L C. C. 482, 485. (hhh) On ground iron ore in car- loads from Iron Ridge, Wis., to Mich- igan City, Ind., and from Iron Ridge to Louisville, Ky., the rate via C. M. & St. P. R. R. from Iron Ridge to Mil- waukee was 5c, from Milwaukee to Michigan City via the P. M. R. R. S^^c and from Milwaukee to Louisviiie 15c, making the Milwaukee combination to Michigan City 13i^c and to Louisville 20c. The joint through rate from Iron Ridge to Micnigan City via Milwaukee and the P. M. R. R. was 211^c and to Louisville 25i/^c. The rate from Iron Ridge to Michigan City via Chicago by the C. M. & St. P. R. R. and the Monon Ry. was the SL.me as via Mil- waukee, 211/^c, but the combination via Chicago was 18c. Complainant de- livered a shipment to the C. M. & St. P. R. R. without routing instructions, except verbal directions, to forward by the cheapest route. The agent for-- warded same via Chicago and the Monon Route. At the time of hearing the only rate in effect to Michigan City was the combination rate of 13i/^c via Milwaukee and 16i/^c via Chicago. HELD, since the lowest rate lawfully applicable from Iron Ridge to Michigan City was that via the route over which the shipments actually moved, repara- tion must be awarded upon the rate deemed by the Commission reasonable via that route, and the carriers should not be forced to meet the lower rate covering the shorter haul via the P. M. R. R. Reparation awarded on the basis of the 16i^c rate in effect at the time of the hearing via Chicago, On the shipment to Louisville repa- ration awarded on the rate in effect at the time of the hearing made on Mil- waukee combination, viz., 14.82c. Win- ters Metallic Paint Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. 562, 563. (iij) If no specific rate from point of origin to destination of a through shipment is provided and no specific manner of constructing combination rate for it is prescribed, the lowest combination of rates applicable via the route over which the shipment moves it the lawful rate for that shipment. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 4. (iii) On an emigrant's outfit from Fletcher, Okla., to Bovina, Tex., 337 miles, a rate of 68c was exacted, which amounted to $13.60 per ton or over 4c per ton mile. The legal rate was '62c, which amounted to $12.40 per ton, or over 3^c per ton mile. Since the shipment moved defendants canceled the 62c rate and ap^ plied the local rates of the Railroad Com- mission of Texas, resulting in a rate of 41c, or $8.20 per ton, or something less than 21^0 per ton mile. HELD, the 68c rate was unreasonable to the extent it ex- ceeded 41c, the latter rate being the com- bination of locals. Reparation awarded. Porter v. St. L. & S. F. R. R. Co., 15 I. C. C. 1, 6. (jjj) On less than carload ship- ments of boilers from Kalamazoo, Mich., to New Glarus, South Wayne, Monti- cello and Monroe, Wis., complainant was assessed a joint through rate of 65c, the combination rate on Chicago 874 THROUGH ROUTES AND JOINT RATES, §15 (kkk)— (sss) being 52c to three of said points and 51.5c to the other. Defendant offered no evidence justifying the rate exacted. HELD, said rate being in excess of the combination of locals, and defendants having offered no evidence to sustain the burden of proof cast upon them, the rate was shown to be unreason- able. Reparation awarded on the basis of said lower rates. Lindsay Bros. v. M. C. R. R. Co., 15 1. C. C. 40, 41. (kkk) On engines and boilers from Kalamazoo, Mich., to Woodford, Wis., and from said point of origin to Argyle, Wis., a through rate was as- sessed in excess of the sum of the locals. Prior to the ruling by the Com- mission that carriers must apply through joint rates when published, although the sums of the locals may result in a lower rate, defendants pub- lished in their tariffs that when the sum of the locals was less than the through rate the former would apply, thereby practicallly admitting the sum of the local rates in question to be a reasonable charge for the haul. HELD, reparation should be awarded on the basis of the sum of the locals. Lind- say Bros. V. G. R. & L Ry. Co., 15 I. C. C. 182, 183. (Ill) To a carload of lumber shipped from Lake City, Ark., to Springfield, Mo., a joint rate of 17c was appli- cable. Defendant connecting carrier at Koshkonong, Ark., under a mistaken im- pression, that no joint rate was in effect between said points, collected the local from Lake City to Koshkonong and the local from said latter point to Springfield, the amount exacted being 5c per 100 lbs. in excess of said 17c joint rate. HELD, reparation should be awarded on the basis of 17c. Keich Mfg. Co. v. St. L. & S. F. R. R. Co., 15 L C. C. 230, 231. (mmm) As the defendant carriers have a right to increase their separate local rates, an order that the joint through rate may not, for a stated period, exceed the sum of the local rates, could, by such increase in local rates, be made ineffective. Michigan Buggy Co. V. G. R. & I. Ry. Co., 15 L C. C. 297. (nnn) If carriers participating in a joiht through rate desire to reduce or increase the separately established local rates via the same route the order ol the Commission requiring the mainte- nance of a joint through rate is no bar to their doing so. Michigan Buggy Co. V. G. R. & 1. Ry. Co., 15 I. C. C. 297, 299. (ooo) There are instances in which the circumstances might justify the high- er through rate, and it is for the carrier to demonstrate their potency in the es- tablishment of a through rate that ex- ceeds the sum of the locals. Michigan Buggy Co. V. G. R. & I. Ry. Co., 15 I. C. C. 297, 299. (PPP) A joint through rate exceeding the sum of the locals is not conclusively presumed to be unreasonable; it has simply placed upon the carriers the bur- den of showing such a joint through rate to be reasonable. Michigan Buggy Co. v. G. R. & I. Ry. Co., .15 L C. C. 297, 299. (qqq) On carloads of vehicles (cut- ters) from Kalamazoo, Mich., to St. Paul, Minn., a rate of 49.5c was charged, the sum of the locals being 33.5c. No evi- dence was submitted by defendants of any special circumstances justifying said rate. HELD, the charge was unreason- able. Reparation awarded on the basis of the sum of the locals. Michigan Buggy Co. V. G. R. & L Ry Co., 15 I. C C, 297, 299. (rrr) On steel tanks from Groshen, Ind., to Sullivan, Wis., and from Goshen to Sheboygan, Wis., complainant was as- sessed rates in excess of the sum of the locals. Defendants admitted that under the old form of applying tariffs the lower combination would have been accorded to complainant and the rates complained of were only charged because the de- fendants had not had time to check over the tariffs in accordance with the regula- tions imposed by the Commission. De- fendant insisted that complainant was not entitled to reparation since he should have called the attention of the initial line to the rate complained of. HELD, the rate exacted was unreason- able. Reparation awarded. Lindsay Bros. V. L. S. & M. S. Ry. Co., 15 L C. C 284, 285. (sss) On carloads of cottonwood box shooks from Greenville, Miss., to Cedar Rapids, la., a rate of 27c was assessed. At the time of shipment the rate from Greenville to Cairo was 10c and from Cairo to Cedar Rapids, 14c, making a combination of 24c. Said rate to Cairo was established to develop the cotton- wood lumber industry and induce the THROUGH ROUTES AND JOINT RATES, §15 (ttt)— (cccc) 875 movement of said wood to market and was 3c lower than that of other kinds of lumber, except gum. Under said rate cot- tonwood became worth $5 to $6 per thousand and sold at the mill at from $16 to $18. The shooks were worth from $26 to $27. The distance from Greenville to Cedar Rapids is 856 miles. The lumber rate was 27c. Box shooks do not load as heavily as lumber. HELD, while reparation should be granted on the basis of 24c, the evidence did not justify the establishment of said 24c rate for the future. Matthews Mfg. Co. v. Y. & M. V. R. R. Co., 15 I. C. C. 436, 438. (ttt) On carloads of stoves from Fre- mont, O., to Minneapolis, a rate of 33c was exacted, the sum of the locals being 28c. The tariff naming said 33c rate provided that the sum of the local rates should apply where less than the through rate, but defendants were unable to apply said lower rate on account of the rulings of the Commission. Subsequent to the shipments defendants established a 29 ^^c rate, being the sum of the locals in effect at the time. Defendants admitted the rate exacted to be unreasonable to the extent that it exceeded 29i^c. HELD, said 33c rate was excessive. Reparation awarded on the basis of 29i/^c. Hartman Furniture & Carpet Co. v. W. C. Ry Co., 15 I. C. C, 530, 531. (uuu) The rate for a long through haul should ordinarily be less than the combination of two or more local rates that are included within that distance over the same lines. Kindel v. N. Y. N. H. & H. R. R. Co., 15 L C. C 555, 558. (vvv) On a carload of leaf tobacco from Stoughton, Wis., to Passaic, N. J., a rate of 52 %c was exacted, of which de- fendant initial carrier received 17i/4c for its portion of the haul and the connecting carrier 35c for the haul to destination. At the time of shipment defendant initial carrier had a local tariff of 15c applicable to its portion of the haul, which was not, however, applicable to interstate ship- ments. Later said tariff was filed with the Commission, making said rate of 15c effective on interstate traffic. HELD, defendant initial carrier's charge of nV2C was unreasonable. Reparation awarded on the basis of 15c. American Cigar Co. V. C. M. & St. P. Ry. Co., 15 I. C. C, 618. (www) Defendants' joint through rates on shipments of complainants' ar- ticles from points in Central Freight As- sociation territory to points in the Fox River Valley, Wis., are unreasonable and unjust, as they are, as a rule, higher than the combination of locals. Oshkosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 L C. C. 109, 114. (xxx) A through rate which is higher than the sum of the locals between the same points is prima facie unreasonable, and the burden of proof is upon the car- rier to defend such higher rate. Oshkosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109. 112. (yyy) Complainants alleged, and the evidence showed, that defendants' through rates on various commodities from points in Central Freight Associa- tion territory, including Buffalo, Erie and Pittsburgh, Pa., Cincinnati and Columbus, O., to points in the Fox River Valley, Wis., including Oshkosh, Neenah, Fond du Lac and Appleton, were in excess of the combined local rates between those points. The through rate complained of permitted dealers at basing points, such as Milwaukee, to reship goods to more distant points at an advantage over local dealers charged the through rate on their shipments. Defendants offered no trans- portation reason to justify the through rates. HELD, the through rates were un- reasonable and unjust and should not exceed the combination charge of local rates. Oshkosh Logging Tool Co. v. C. & N. W. Ry. Co., 14 I. C. C. 109, 113, 114. (zzz) To prevent unjust discrimina- tions the through rate should not exceed the combination of locals, and when this Commission can, without doing violence to its convictions, establish a through rate not in excess of the sum of the lo- cals, it would be disposed to do so. Mont- gomery Freight Bureau v. Western Ry. of Ala., 14 I. C. C. 150, 152. (aaaa) Where the sum of the local rates established by state authority is less than a reasonable interstate rate, the higher rate may be charged. Mont- gomery Freight Bureau v. W. Ry. of Ala., 14 L C. C. 150, 151. (bbbb) Ordinarily a through rate ought not to exceed the sum of the lo- cals. Montgomery Freight Bureau v. W. Ry. of Ala., 14 L C. C. 150, 151. (cccc) It is not enough to entitle a complainant to reparation to show merely that since certain shipments were made a joint rate has been established which 876 THROUGH ROUTES AND JOINT RATES, §15 (dddd)— (mmmm) is lower than tlie former combination of locals, and such fact of itself creates no presumption against the carriers. Flac- cus Glass Co. vs. C. C. C. & St. L. Ry. Co., 14 I. C. C. 333, 334. . (dddd) Between September 1, 1906 and June 30, 1907, complainant shipped carloads of lime at 13.5c per 100 lbs., McVittys, O., to Tarentum, Pa.,, via Columbus, a distance of 333 miles, the rate equaling the combination of locals, no joint rate being in force during that period. The distance via Forest, Pa., is 255 miles. Effective Feb. 4, 1907, the local rates between said points via For- est were so reduced as to make the com- bination of locals 12.5c. July 8, 1907, defendant established a through rate of 10c from McVittys to Tarentum by both routes. HELD, in the absence of evi- dence that the former local rates were unreasonable, complainant was not en- titled to reparation. Flaccus Glass Co. V. C. C. C. & St. L. Ry. Co., 14 I. C. C. 333, 334, 335. (eeee) It cannot be conclusively pre- sumed that the sum of the locals is a reasonable through rate if the locals themselves are reasonable. Randolph Lumber Co. v. Seaboard Air Line Ry., 14 I. C. C. 338, 339. (ffff) It may, in exceptional cases, happen that the through rate may prop- erly be even greater than the sum of the locals, but if rates were to be established de novo upon correct principles, it would generally be less. Randolph Lumber Co. V. Seaboard Air Line Ry., 14 L C. C 338, 339. (gggg) Upon shipments from Chester via Richmond to Ohio points, defendant running from Chester to Richmond con- tended that it cost it just as much for its share of the through shipment as if it delivered same locally. Upon a local, but not upon a through, shipment it was required to let its cars stand at Rich- mond three days on its team track for unloading. HELD, defendant's conten- tion was erroneous and the through rate of 17.5c ordered by the Commission to replace the former 18.3c joint rate es- tablished by defendants should not be disturbed on a petition for rehearing. Randolph Lumber Co. v. Seaboard Air Line Ry., 14 I. C. C. 338, 338, 339. (hhhh) Where a local rate from Mont- gomery, Ala., to West Point, Miss., is lower in proportion to the distance than a rate from Montgomery to Meridian, ap- proved in a former decision of the Com- mission, a joint rate from Montgomery via West Point to the nearer points upon the connecting carrier, running from West Point, may exceed the combination of locals. Montgomerv Freight Bureau v M. & O. R. R. Co., 14^1. C. C. 374, 375. (iiii) A joint rate from Montgomery, Ala., via West Point, Miss., to points on the connecting carrier running from West Point which exceeds the combina- tion of local rates is unreasonable. Montgomery Freight Bureau v. M. & O. R. R. Co., 14 I. C. C. 374, 374. (jjjj) Where, upon a carload of ma- chinery shipped from Hopkins, Minn., via Kansas City to Abbyville, Kan. the sum of the locals is 54c, complainant is en- titled to reparation for the excess charged above that amount, and the joint through rate of 56c is unreasonable and should be reduced to 54c for the future. Minneapolis Threshing Machine Co. v. C. M. & St. P. Ry. Co., 14 I. C. C. 536. (kkkk) On oranges from Mcintosh, Fla., to Pottsville, Pa., complainant was assessed a through rate higher than the combination of locals based on Reading, Pa. Through a misconception of th3 long and short haul clause of the Act, Reading, being intermediate to Philadel- phia, was given the same rate, and for this reason the rate from Mcintosh to Reading was lower than that to other points in Reading territory. Subsequent to the filing of the complaint, defendants raised the rate to Reading so as to make the combination of locals to Pottsville exceed the through rate attacked. IIFLD, the demand for the reduction of the through rate should be refused, but since the dealers at Reading had been accorded a material advantage over complainant, complainant was entitled to reparation on the basis of the sum of the locals for- merly in effect. Sylvester v. Penn. R. R. Co., 14 I. C. C. 573, 574. (1111) A through rate or fare which is higher than the sum of the locals be- tween *the same points is prhTis facie un- reasonable, and the burden of ')roof is upon the carrier to defend such higher rate. Hardenberg, Dolson &: Gray v, N. P. Ry. Co., 14 I. C. C. 579, 579. (mmmm) The rate on hay ^rom Port- land to Seattle and from Portland fo la- coma was 10?. The local rate from Ta- coma to Auburn, a point nterincdiate be- THROUGH ROUTES AND JOINT RATES, §15 (nnnn)— (yyyy) 877 tweea Seattle and Tacoma, was 3c, and the local rate from Seattle to Auburn was 3c. The low 10c rate from Portland to Tacoma and Seattle were brought about by water competition. Auburn was not located on water. HELD, the defendant's through rate from Portland to Auburn of 14c was unreasonable, as exceeding the sum of the locals, 13c, and complainant was entitled to reparation on the basis of the 13c rate. Harden- berg, Dolson & Gray v. N. P. Ry. Co., 14 I. C. C. 579, 580. (nnnn) On a carload of corrugated iron from Newport, Ky., to Globe, Ariz., complainant was assessed a through rate of $2.08 per 100 lbs., minimum 30,000 lbs. The combination of locals was $1.68, minimum 30,000 lbs. Subsequent to the shipment in question, defendants estab- lished a joint through rate of $1.'68, mini- mum 36,000 lbs. Complainant offered no evidence that 36,000 lbs. minimum was unreasonable. Defendants admitted the $2.08 rate to be unreasonable, but did not admit the same with respect to the 36,000 lb. minimum. HELD, the $2.08 rate was excessive, but reparation on the basis 'of $1.68 rate must be com- puted on the 36,000 and not on the 30,- 000 lb. minimum. Momsen & Co. v. Gila Valley, Globe & Northern Ry, Co., 14 L C. C. 614, 615. (oooo) The joint through rates from Springfield, 111., to Salina and Kipp, Kan., were in excess of the combination of locals based on Kansas City, this re- lation of rates apparently being main- tained for the purpose of making Kansas City a center of distribution for points farther west. HELD, in the absence of justifying circumstances, such a relation of rates was improper. Carriers generally criticized for failure to make joint rates not to exceed the combination of locals. Laning-Harris Coal & Grain Co. v. M. P. Ry. Co., 13 I. C. C. 154, 158. (pppp) On carloads of broom corn from Elk City, Okla., via Omaha to Sioux City, la., complainant was assessed joint rates in excess of combination of locals based on Omaha. No justification for said charge was offered by defendants. HELD, the rate exacted was unreason- able. Reparation awarded on the basis of the sum of said locals. Coomes v. C. M. & St. P. Ry. Co., 13 1. C. C. 192, 194. (qqqq) Defendant carriers are criti- cized for the practice of inserting ob- scure and general clauses in voluminous tariff publications to the effect that where a combination of locals will make a lower aggregate through rate than the specific joint rate therein stated, the former will be used; since concerns employing a traffic expert are able to secure combina- tions resulting in lower aggregate charges than can be secured by the smaller or occasional shipper who is not able to employ such an expert and who is required to pay the joint through rate appearing on the face of the tariff. Specific joint through rates should be published and adhered to and only in rare instances and under peculiar cir- cumstances should through rates be made higher than the sum of the locals. Hydraulic Press Brick Co. v. St. L. & S. F. R. R. Co., 13 I. C. C. 342, 347. (rrrr) Through rate on turnips from Delavan, Wis., to Terre Haute, Ind., 26c, canceled, leaving combination rate in effect of 18c. Reparation awarded on basis of 18c rate. Anguish v. C. M. & St. P.- Ry, Co., Unrep. Op. 64. (ssss) Through rate exceeded sum of locals. Under circumstances of case, HELD, not unreasonable. White Bros. V. S. P. Co., Unrep. Op. 84. (tttt) No through rate in effect, com- bination higher than subsequently es- tablished joint through rate. Bayou City Rice Mills v. H. & T. C. R. R. Co., Unrep. Op. 90. (uuuu) Joint through rate in excess of combination of locals and commodity rate subsequently established. Repara- tion awarded. Hartman Furniture Co. v. C. Gt. W. Ry. Co., Unrep. Op. 115. (vvvv) Joint through rate canceled, leaving higher combination rates in ef- fect; joint through rate subsequently re- stored; reparation awarded on basis of joint tnrough rate. Swift & Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 130. (wwwwxxxx) Sums of locals instead of through rates applied to certain ship- ments because tariff did not make spe- cific application of the through rates to intermediate points. Tariff amended. Reparation awarded. American Smelting & Refining Co. v. O. S. L. R. R. Co., Unrep. Op. 162. (yyyy) Through class rate unreason able to the extent of a lower commodity rate subsequently established. Minneap- 878 THROUGH ROUTES AND JOINT RATES, §15 (zzzz)— §16 (d) olis Iron Store Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 172. (zzzz) Through class rates subse- quently established lower than combina- tion rate charged. Reparation awarded. Bamble Bros. v. C. M. & St. P. Ry. Co., Unrep. Op. 173. (aaaaa) Lower combination in effect than charged. Reparation awarded. New England Furniture & Carpet Co. v. M. C. R. R. Co., Unrep. Op. 243. (bbbbb) Reparation awarded on basis of lower combination in effect at time o*' movement. Medberry Findeisen Co. v. C. & N. W. Ry. Co., Unrep. Op. 263. (ceccc) Through rate exceeded locals. Reparation awarded. Joint rate subse- quently filed, which was lower than com- bination. No order entered maintain- ing rate for the future. Berlin Machine Works V. B. & O. S. W. R. R. Co., Un- rep. Op. 321. (ddddd) Joint commodity rate ex- ceeded class rate in effect. Reparation awarded. Crabtree v. O. R. & Nav.* Co., Unrep. Op. 357. (eeeee) In view of the fact that the joint rate did not exceed the combination of intermediates, and that it has not been shown to have been unreasonable, the complaint must be dismissed. Lu- dowici-Celadon Co. v. C. & M. V. R. R. Co., Unrep. Op. 385. (fffff) Combination rate exceeded joint rate in effect prior to date of ship- ment. Reparation awarded. McCord Mercantile Co. v. A. T. & S. F. Ry. Co., Unrep. Op. 398. (ggggg) Combination rate found un- reasonable to the extent of a lower joint rate subsequently established over the same route. Reparation awarded. Sun- derland Bros. Co. V. M. K. & T. Ry. Co., Unrep. Op. 400; Chattanooga Wagon Co. V. M. & O. R. R. Co., Unrep. Op. 429. (hhhhh) Combination rate which ex- ceeded joint rate with transit privilege formerly in effect not found unreasonable. Pierce v. D. M. & N. Ry. Co., Unrep. Op. 401. (iiiii) Combination rate exceeded joint commodity rate subsequently established. Reparation awarded. Southern Shuttle & Bobbin Co. v. T. F. Ry. Co., Unrep. Op. 407. (jjjjj) Tariff did not provide joint rate, and the combination of interme- diates is higher than the rate from towns in the same section. HELD, unreason- able. Torrey Cedar Co. v. C. & N. W. Ry. Co., Unrep. Op. 420. (kkkkk) Lower combination of inter- mediate commodity rates in effect. Rep- aration awarded, Idaho Lime Co. v. A. T. & S. F. Ry. Co., Nnrep. Op. 553. (11111) The claim in this case is based on the ground that the rate charged ex- ceeded the aggregate of the intermediate rates. Combination rate applied via a different route. Dismissed. Franke Grain Co. v. L. S. & M. S. Ry. Co., Unrep. Op. 554. §16. Reparation. See Absorption of Charges, §2 (c) ; Claims, §8 (g); Procedure Before Commission, V, §11 (dd), (f) ; Repa- ration, §16 (mm), (nn), (jjj), (ppp), §19 (b), (c), (d), (g), (I), (q), (r), (V). (a) Where a connecting carrier re- ceives carloads of oil consisting of tank cars and carloads made up of barrel packages from the initial carrier and merely joins with the initial carrier in a joint rate in itself reasonable, .it is not liable for the alleged discriminatory acts of the initial carrier in charging for the weight of the barrel package used in shipments made by one class of shippers, while at the same time making no charge for the weight of the tank cars against a competing class of shippers using such method of shipment. Penn, Refining Co. V. W. N. Y. & Penn. R. R. Co., 208 U. S. 208, 222, 28 Sup. Ct. 268, 52 L. ed. 456. (b) Where an unreasonable joint rate has been collected, the liability of the parties to such action is joint and sev- eral, and the Commission may award reparation against one of the roads which participated in the traffic, even though other roads which performed a part of the service are not made parties defendant to the formal complaint ask- ing reparation. Webster Grocer Co. v. C. & N. W. Ry. Co., 21 I. C. C. 20, 21. (c) The joint through rate over an- other road is not a proper basis for rep- aration, lola Portland Cement Co. v. M. K. & T. Ry. Co., 20 I. C. C. 91, 92. (d) Carriers under a joint rate are severally liable for damages for the violation of the law in which they par- ticipate. Sondheimer Co. v. I. C. R. R. Co., 20 I. C. C. 60«, 610. THROUGH ROUTES AND JOINT RATES, §16 (e)— (1) 879 (e) Withdrawal of joint through rates, resulting in application of higher locals, condemned, and, joint rates having been subsequently re-established, reparation awarded on shipments upon which charges had been assessed at the higher rate. Corporation Commission of Okla- homa V. C. R. I. & G. Ry. Co., 17 I. C C. 379. (fg) Where the initial line publishes a joint rate not concurred in by connect- ing lines, and the shipper is compelled to pay a greater charge than that named in the tariff, he may recover from the initial line the difference if the rate posted is found reasonable. Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, 592. (h) On carloads of tobacco from Ken- tucky points to Laredo and thence over the lines of a Mexican railroad to Mon- terey, Mexico, complainant was assessed on the basis of a car minimum of 33,- 069 lbs. All the American lines over which the shipments moved, except the initial carrier, the L. & N. Ry., were mem- bers of a tariff committee, which on June 27, 1907, by tariff No. 491, established a ■minimum weight on tobacco from said Kentucky points to Monterey of 22,046 lbs. The L. & N. R. R. was named as a party to this tariff, but did not file its concurrence. October 5, 1907, said com- mittee, by supplement 3, increased the minimum to 33.069 lbs. Effective October 11, 1907, the L. & N. R. R. established said tariff No. 491 as its tariff, but made no reference to supplement 3. Effective De- cember 23, 1907, the L. & N. R. R. pub- lished supplement 3 as its own supple- ment No. 4. The said committee did not concur in either of these tariffs when filed by the L. & N. R. R. The shipments moved between October 11 and December •23, 1907. HELD, there was no joint through rate in effect between the points in question between the L. & N. R. R. and said other carriers, since the minds of the parties never met upon any tariff; but all the defendants having assumed at the time the shipments moved to have in effect a joint through rate, and accepted and transported the merchandise in ques- tion under that rate, the Commission having found said rate to be unreason- able, might award reparation against all the defendants. Black Horse Tobacco Co. V. I. C. R. R. Co., 17 L C. C. 588, 592. (i) Shipments of tobacco from points in Kentucky to Monterey, Mexico, were carried by American lines to Laredo, and from Laredo to Monterey by a Mexican line. The American carriers in connec- tion with the Mexican carrier established a joint charge for the entire service from the Kentucky points to the Mexican point and gave no information as to the part of that charge which would accrue to the American roads. HELD, the carriers who actually participated in the transporta- tion under a joint rate are jointly and severally liable in damages for the un- reasonableness of that rate, and the same rule applies where the transporta- tion is partly in a foreign country and where one of the carriers participates in the joint rate for a foreign rail- way which has not concurred in the tariff establishing that rate. Reparation awarded. Black Horse Tobacco Co. v. I. C. R. R. Co., 17 I. C. C. 588, 590. (j) Where an excessive joint rate has been exacted solely by the initial car- rier an order may be entered against it for reparation, even though the con- necting carrier is not made a party, leav- ing to the carriers the right to adjust the matter between themselves. Morti v. C. M. & St. P. Ry. Co., 13 L C. C. 513, 515. (jj) Sum of local rates charged found unreasonable to the extent that it ex- ceeded the joint rate subsequently estab- lished. Reparation awarded. Lemmon Hardware Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 171, 174; Payne v. C. M. & St. P. Ry. Co., Unrep. Op. 175; Wolfe v. C. M. & St. P. Ry. Co., Unrep. Op. 198; Hettinger Hardware Co. v. C. M. & St. P. Ry. Co., Unrep. Op. 199; Wiprud v. C. M. & St. P. Ry. Co., Unrep. Op. 201. (k) In September, 1901. it was not unlawful for connecting railroad lines to make a joint rate with a shipper for the transportation of grain from one state to another, and a contract of this character was valid and binding upon the parties thereto if there was no estab- lished rate under the provisions of the Interstate Commerce Act in force which applied to such traffic. K. C. S. Ry. Co. V. Albers Com. Co., 79 Kan. 59, 59, 99 P. 819. (1) Where, in a suit by a carrier to recover the balance of the published rate consisting of the combination of locals, defendant shipper sets up a counter claim, defendant has the burden of prov- ing that the sum exacted was in excess 880 THROUGH ROUTES AND JOINT RATES, §1€ (m)— §18 (c) of the published rate. B. & O. R. R. Co. V. La Due, 128 App. Div. 594, 599; re- versed 57 Misc. 614, 108 N. Y. Supp. 659. (m) Plaintiff carrier sued to recover the published charges made up of a combination of local rates. Defendant shipper set up a counter claim based on a private agreement, undisputed by plaintiff, by which the plaintiff con- tracted to charge the through rates. There was no evidence to show that the through rates agreed upon were less than the published through i-ates, nor did plaintiff show that there was no through rate filed with the Interstate Commerce Commission. HELD, plaintiff having failed to meet the burden of proving that the through rates specified in the private agreement were illegal, defendant could not recover on his counter claim the ex- cess collected above the private contract- rate. B. & O. R. R. Co. V. La Due, 57 Misc. 614. 61-6; 108 N. Y. Supp. 659; re- versed 128 App. Div. 594, 112 N. Y. Supp. 964. V. TARIFFS AND CONSTRUCTION. §17. In General. See Alternative Rates, I (e) ; Bills of Lading, §9 (1) (a); Demurrage, §17 (e) ; Facilities and Privileges, §2 (I); IVIinimums, §8 (n); Tariffs, §3 (I), §12 (a); Undercharges, §6 (a), (b). (a) Local rates and joint through rates are placed by the Act on the same level, both being required to be openly published and uniformly applied, and al- though the carriers are obliged to estab- lish local rates and are left to agree upon joint througn rates, or not, as they choose, still if they do agree therein, the rates can become legally operative only by being established as prescribed in the Act. K. C. S. Ry. v. Albers Comm. Co., 223 U. S. 573, 597, 32 Sup. Ct. 316, 56 L. ed. 556. (b) Concurrence with others in joint rates that effect unjust discrimination or undue preference is the voluntary action, of the carriers at the point where the unjust discrimination or the undue pref- erence exists. Chamber of Commerce, Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140, 149. (c) Where an initial line publishes and maintains one joint tariff, which is not properly concurred in by its con- nections, and at the same time another joint tariff naming the higher rates and properly concurred in, the latter tariff is the legal one and must be applied, Ken- nedy & Co. V. St. L. S. W. Ry. Co., 22 I. C. C. 277. (d) Combinations of joint rates not filed with the Commission are not lawful factors to be considered by it in the de- termination of the reasonableness of the joint rate. Milburn Wagon Co. v. L. S. & M. S. Ry. Co., 18 I. C. C. 144, 146. (e) A through rate may not be con- structed of factors not on file with the Commission. Hagar Iron Co. v. Penn. R. R. Co., 18 L C. C. 529. (f) Where port to port rates, recon- signments and intrastate rates are not on file with the Commission they cannot be used as a basis for determining in a claim for reparation the legality and rea- sonableness of the lawfully published through rate exacted. Hager Iron Co. v. Penn. R. R. Co., 18 I. C. C. 529, 529. (g) Where a through rate is con- structed on a combination, each factor must be published and filed with the Com- mission. Without the filing of each fac- tor, there is no oflficial measure of the rate. Awbrey & Semple v. G. H. & S. A. Ry. Co., 17 L C. C. 267, 271. (h) Where through rates agreed upon by private contract are less than those duly published and filed with the Com- mission, they are illegal and cannot be enforced by the shipper. B. & O. R. R. Co. V. La Due, 57 Misc. 614, 016, 108 N. Y. Supp. -659; reversed 128 App. Div. 594, 112 N. Y. Supp. 964. §18. Application of Proporticnal Rate. See Proportional Rates, §18. (a) A joint through rate takes prec- edence over a combination of a pro- portional and local. Delray Salt Co. v. D. T. & I. Ry. Co., 18 I. C. C. 245. (b) Although a proportional rate is published, this does not make it a legal rate, if there exists a published through rate. Lindsay Bros. v. B. & O. S. W. R. R. Co., 16 I. C. C. 6. 8. (c) The published schedules of de- fendant Ureat Northern R. R. named a rate of 85c from Stavanger, Norway, to Seattle, Wash., with the proviso that the defendant should have 75c for its portion of the haul from the Atlantic seaboard to Seattle, and in case the best ocean rate obtainable brought the total charge above 85c, the total rate should THROUGH ROUTES AND JOINT RATES, §18 (d)— §19 (e) 881 he 75c plus the best ocean rate to be secured. Defendant contracted with plaintiff shipper to transport for the en- tire distance at 85c. Defendant pro- cured of the ocean carrier a rate of 38.7c, and, adding this to the 75c mini- mum, exacted a charge of $1,137. Plaintiff shipper sued on the contract to recover the excess exacted above 85c. HELD, in the absence of proof by de- fendant that the conditions of ocean transportation were such as to make the contract rate of 85c unlawful under the tariff schedules mentioned, it was not proved that the contract was unlawful, and plaintiff was entitled to the pos- session of the property upon paying the contract rate to the defendant. (Rud- ]\in, J., dissenting.) Fisher v. Gt. N. Ry. Co., 49 Wash. 205, 211, 95 P. 77. (d) The mere fact that the proportion of the through contract rate from a Euro- nean point to a point in the United States, allowed for the carriage from the port of entry to the destination in the United States, may be less than the rate scheduled for freight originating at the port of entry and carried to the same destination, does not necessarily render the lesser rate unlawful. Fisher V. Gt. N. Ry. Co., 49 Wash. 205, 212, 95 P. 77. §19. Breaking Transit. See Interstate Commerce, §1; Recon- signment, §3 (r), §5 (g), (h). (a) The combination of locals, and not the joint through rate, was properly collected on a shipment which was or- dered reshipped before it reached its original billed destination, in the ab- sence of a reconsignment privilege. Ploridin Co. v. S. A. L. Ry., 21 I. C. C. 610. (b) A carload of woven-wire fence from Richmond, Ind., to Billings, Okla., was reconsigned after arrival at Billings to Wichita and a local rate of 32c was collected for the back haul to Wichita. The tariff containing the joint rate to Billings provided for reconsignment after reaching destination when the substituted destination was a point where through rates and divisions were in effect via routed movement. The published tariffs contained no joint rates in effect from Richmond and Wichita. HELD, since the tariff con- taining joint rates to Billings extended no reconsignment privilege to Wichita the local rate of 32c from Billings to Wichita was properly assessed. Town- ley Metal & Hardware Co. v. C. R. I. & P. Ry. Co., 18 I. C. C. 378, 379. (c) On a shipment of oil meal from Minneapolis to Milo, Mo., via Kansas City, complicinant attempted to secure the combination rate, which was lower than the through rate, by billing the shipment first to Kansas City, and then requesting the initial carrier to collect the charges up to Kansas City, deliver the car to the connecting carrier for carriage to Milo, and to secure a new bill of lading from Kansas City to Milo. The initial carrier corrected the billing to read from Kansas City to Milo, and applied the through rate. HELD, de- fendant initial carrier's action was proper, as a shipper cannot defeat the application of a joint through rate by constituting the carrier its agent to col- lect charges up to the junction point and reship the traffic to final destina- tion. Stock Yards Cotton & Linseed Co. V. C. M. & St. P. Ry. Co., 16 I. C. C. 366, 367. (d) Complainant consigned a car- load of dressed pine from Warsaw, N. C, to itself at New York City, "within lighterage limits." Complainant had no place of business in New York City and by letter directed defendant carrier to forward the car from New York to Chap- paqua. The joint through rate of 32c was exacted. The local rate to New York of 21c plus the 7c local from 60th Street Station, New York, to Chappaqua made a combination of 28c, but there was a gap between the two said movements which had to be filled, by unloading, draying and reloading at New York. Complainant offered no evidence of the unreasonableness per se of the 32c rate exacted, except that a 27c rate was es- tablished subsequent to the shipment in question. HELD, the facts did not pre- sent a case where a through rate in ex- cess of the combination of locals was unreasonable. Reparation denied. Har- low Lumber Co. v. A. C. L. R. R. Co., 15 I. C. C. 501, 503. (e) A shipper may transport mer- chandise to a given point, take posses- sion of it at that point and reship it, even though the effect of the transac- tion is to secure transportation from a point in one state to a point in another at a less cost than the published through interstate rate. Montgomery Freight Bu- reau V. W. Ry. of Ala., 14 I. C. C. 150, 152. 882 THROUGH ROUTES AND JOINT RATES, §19 (f)— §22 (b) (f) Defendant published a joint rate and through, route on cotton seed via Fort Smith to Memphis, but provided that shipments must be loaded in the cars of connecting carriers and if the shipper used defendant's cars it should be re- quired at its own risk and expense and subject to demurrage charges to unload and transfer same at Fort Smith. HELD, such provision was unlawful, as opening the way for unjust discrimination be- tween shippers. Memphis Freight Bu- reau V. Ft. S. & W. R. R. Co., 13 I. C. C. 1, 9. §20. Change in Rate While Shipment at Transit Point. See Facilities and Privileges, §18; Reparation, §2 (f). (a) Although the rate is advanced while oil was at a refining-in-transit point, the legal rate is the rate in ef- fect at the time of original movement. Southern Cotton Oil Co. v. A. C. L. R, R. Co., 19 I. C. C. 434, 435. (b) The through rate on the fin- ished product is applicalDle from origin to destination. Monarch Milling Co. v. C. R. I. & P. Ry. Co., 17 I. C. C. 1. (c) Tariffs provided that on reship- ment from concentration point the through rate from origin to final desti- nation would be protected. Consign- ment was destroyed by fire while at transit point. Claim for refund of local rate from origin to transit point denied. Anderson, Clayton & Co. v. St. L. & S. F. R. R. Co., 17 I. C. C. 12. (d) Where grain is shipped under a niilling-in-tra-sit privilege and the through rate is changed after shipment from the point of origin and before shipment at the point of milling, the rate in effect at the time of the ship- ment at point of origin governs under the rule that rates cannot be changed while shipments are in course of trans- portation. In Re Milling-in-Transit Rates, 17 I. C. C. 113, 114. (e) Whenever by any transit ar- rangement through rates are applied, such through rates must be as of date of first movement from point of origin under such through rates. In Re Mill- Ing-in-Transit Rates, 17 I. C. C. 113. (f) Cotton-seed oil from points in Georgia and Alabama, with stop-over privileges at Savannah, Ga., for refining. Rates increased while in transit and such rates applied. Rates in effect when ship- ment delivered to carriers should have been applied. Reparation awarded. South- ern Cotton Oil Co. V. S. A. L. Ry., Unrep. Op. 358. §21. Intermediate Clause. See Crimes, §5 (a); Reparation, §16 (uu). (a) On a carload of wheat shipped July 17, 1907, from Wooley's Spur, Idaho, to McKinney, Tex., complainant was as- sessed 88i^c. A joint through rate of 60c was in effect at the time of ship- ment from Idaho Falls to McKinney, between which Wooley's Spur is di- rectly intermediate. Defendants were accustomed to apply the through rate from intermediate points, from which no specific through rate was published. HELD, the case was one designed to be relieved by Special Circular No. 6 of the Commission allowing defendants for a specific period to apply through rates to intermediate points from which no through rates were published. Repa- ration awarded on the basis of 60c. Williamson v. O. S. L. R. R. Co., 15 I. C. C. 228, 229. §22. What Is Legal Rate. See Crimes, §5 (f), §7 (f) ; Evidence, §3 (a), §40 (a), §60 (a); Reasonable- ness of Rates, §2 (ttt) ; Reparation, §8 (x), (z); Special Contract, §2 (d), (gg), (hh), (ii), (tt); Tariffs, §3 (1), §3 (2), §7 (qq), (ill), (jjj), (yyy)» (dddd); Through Routes and Joint Rates, §15 (ill), §17 (c), §18, §20, §22 (m), (o); Transporta- tion, §3 (a). (a) If an initial carrier accepts traf- fic for transportation and issues its bill of lading over a route made up of con- necting roads for which no joint through rate has been published and filed with the Commission, the lawful rate to be charged is the sum of the established local rates published and filed by the individual roads; or if there is a local rate over one road and a joint rate over the others for the remainder of the route, all published and filed witii the Commission, the lawful through rate to be charged is the sum of the local and joint rates. K. C. S. Ry. v. Albers Comm. Co., 223 U. S. 573, 597, 32 Sup. Ct. 316, 56 L. ed. 556. (b) Concurrence with others in joint rates that effect unjust discrimination or undue preference is the voluntary action of the carriers at the point where the unjust discrimination or the undue THROUGH ROUTES AND JOINT RATES, §22 (c)— (o) 883 preference exists. Chamber of Com- merce, Ashburn, Ga., v. G. S. & F. Ry. Co., 23 I. C. C. 140, 149. (c) Initial line publishing a joint rate lower than combination without securing its connection's concurrence must, nevertheless, protect such rate to a shipper who made a contract based on the lower rate. DeCamp Bros. & Yule Iron, Coal & Coke Co. v. V. & S. W. Ry. Co., 22 I. C. C. 274, 276. (d) A joint rate over several lines not concurred in by such connecting lines is in direct contravention of the rules of the Commission made under section 6. DeCamp Bros. & Yule Iron, Coal & Coke Co. v. V. & S. W. Ry. Co., 22 I. C. C. 274, 276. (e) The V. & S. W. Ry. published, in a tariff effective July 13, 1906, and continued in effect until Nov. 19, 1908, what purported to be a joint through rate of $4.85 per ton for the transporta- tion of coke in carloads from Appa- lachia, Va., to Rusk, Tex. In contra- vention of the rules of the Commission, the tariff did not show concurrences of connecting lines. No concurrences had, in fact, been obtained, but the rate pub- lished was the then existing combina- tion rate. In August, 1908, complainant made two contracts for delivery of a quantity of coke at Rusk, Tex., basing its bid on the joint rate. Later the combi- nation rate was raised to $5.85. HELD, that, following Rule 68, Tariff Circular 18-A, complainant is entitled to repara- tion from the initial carrier upon the basis of the rate improperly published in its tariff. The initial carrier is liable for the careless manner in which it pub- lisned this rate. DeCamp Bros. & Yule Iron, Coal & Coke Co. v. V. & S, W. Ry., 22 I. C. C. 274, 276. (f) As between two joint tariffs, naming different rates between the same points, the one properly concurred in is the legal rate, though it names higher charges than the other. Kennedy & Co. V. St. L. S. W. Ry. Co., 22 I. C. C. 277. (g) On carloads of apples from St. Louis, Mo., to Monroe, La., complainant charged that a joint rate of 40c per 100 lbs. was unreasonable and showed that a schedule had been filed by defendant, the initial carrier, of 34c. Defendant showed that connecting carrier had not concurred in the lower rate. HELD, that the complainant was charged the legal rate,. and there being no evidence of its unreasonableness complaint was dismissed. Kennedy & Co. v. St. L. S. W. Ry. Co., 22 I. C. C. 277. (h) Initial line publishing what pur- ports to be a joint tariff, but which is not a legal tariff, because not concurred in by connections, is liable in damages for whatever amount the shipper suf- fers. Edison Portland Cement Co. v. D. L. & W. R. R. Co., 22 I. C. C. 382, 383. (i) A joint through rate was held to be the legal rate, although all the car- riers had not filed concurrences, the movement having occurred prior to the order of the Commission under which all tariffs not properly concurred in were declared invalid. Robertson Paper Co. V. B. & M. R. R. Co., 21 I. C. C. 254, 255. (j) An initial carrier is liable in dam- ages to a shipper where it named a joint through rate in which connecting lines had not concurred, a combination rate legally applicable being held unreason- able. Texico Transfer Co. v. L. & N. R. R. Co., 20 L C. C. 17, 18. (k) The joint through rate is the legal rate, though a lower combination exists. Idaho Lime Co. v. A. T. & S. F. Ry. Co., 19 L C. C. 139. (1) Where initial carrier's advanced rate tariff did not cancel lower com- mutation fare named in tariff of another carrier to which initial carrier was a party, such lower rate was the legal rate. The lawfully established rate re- mains in force until specifically can- celed. Stilwell V. L. & H. R. Ry. Co., 19 I. C. C. 404, 405. (m) Where no joint through rate is in effect, the combination of separately established rates via the route of move- ment constitutes the through rate. Fish & Co. V. N. Y. C. & St. L. R. R. Co., 19 I. C. C. 452. (n) The joint through rate on any commodity between two given points is an entirety and is the only rate that lawfully can be applied. Copper Queen Consolidated Mining Co. v. B. & O. R. R. Co., 18 I. C. C. 154, 156. (o) In the absence of a published specific through rate between two points, the tariff indicating no specific way of making up a through rate, the lowest combination of local rates over the route of the ^loveme^t is the lawful 884 THRO ROUTES AND JOINT RATES, §22 (oo)— TRACK STORAGE, I (c) through charge. Contact Process Co. v. N. Y. C. & St. L. R. R. Co., 17 I. C. C. 184. (oo) If no specific rate from point of origin to destination on a through ship- ment is provided, and no specific manner of constructing a combination rate for it is prescribed, the lowest combination of rates applicable via the route over which the shipment moves is the lawful rate for thp*^ shipment. Porter v, St. L. & S. F. R d. Co., 15 I. C. C. 1, 4. (pj Notwithstanding the presumption of unreasonableness attaching to through rate in excess of combination of locals, so long as such rate remains In effeci it must be applied. Momsen & Co. v. Gila Valley, Globe & Northern Ry. Co., 14 I. C. C. 614. (q) Carloads of coal from Springfield, 111., were consigned to complainant dealers at Kansas City. Upon tneir ar- rival at that point they were rebilled by defendant's agent to Salina and Kipp, Kan., the direction so to rebill being given by telephone and in writing by complainant. Complainant was as- sessed the joint through rate from Springfield to Salina and Kipp, which was in excess of the local rates based on Kansas City to said destinations. HELD, the shipments to and from Kan- sas City were separate shipments and the local rates should have been charged for each shipment. Reparation awarded on the basis of the sum of the locals. Laning-Harris Coal & Grain Co. v. M. P. Ry. Co., 13 I. C. C. 154, 157. (r) Where a joint rate is in effect between points it is the only lawful rate applicable, and it is illegal to apply the sum of the locals. Laning-Harris Coal & Grain Co. v. M. P. Ry. Co., 13 L C. C. 154, 158. (s) Complainant shipped wheat from Smolen and Falun, Kan., via Coffey- ville to Little Rock, Ark., the same be- ing manufactured into bran at Salina, Kan., where a milling-in-transit privilege applied. The rate from Smolen to Lit- tle Rock was 32c and from Falun to Little Rock 30.75c. From Smolen to Kansas City, where a milling-in-transit privilege was granted, and from Falun to Kansas City, the rates were 15c and 15 %c, respectively, with a proportional rate on the bran from Kansas City to Little Rock of 12.75c. Defendant's tar- iffs provided that the proportional rates should not apply from points where the effect would be to gain a rate less than the through rate, and these proportional rates were applied only where the mill- ing-in-transit privilege was exercised at Kansas City. No evidence was offered of the unreasonableness of the rates charged. HELD, complainant was not entitled to reparation on the basis of the lower rates from Smolen and Falun via Kansas City to Little Rock, since such rates did not, by the terms of the tariffs, apply to his shipments, and the rates charged were not unreasonable as being in excess of an alleged com- bination on Kansas City. Marshall Michel Grain Co. v. M. P. Ry. Co., 13 I. C. C. 566, 568. §23. Procedure. See Procedure Before Commission, §2 (ii), §4 (d), §11 (dd), (f), (r), §13 (c), (j), (u). TICKETS. See Passenger Fares and Facilities, §15. TRACING SHIPMENTS. See Interstate Commerce, §4 (v) ; Loss and Damage, §3 (I). TRACK STORAGE. I. CONTROL AND REGULATION. II. REASONABLENESS AND LEGAL- ITY. I. CONTROL AND REGULATION. See Demurrage, §1 (e) ; Procedure Before Commission, §19 (f). (a) A state law reducing track-storage charges is not applicable to interstate business. Wilson Produce Co. v. Pa. R. R. Co., 16 L C. C. 116, 121. (b) Since cartage charges may be re- garded as a proper subject for national regulation, Federal authority over, demur- rage and track storage charges in connec- tion with interstate commerce cannot be challenged and is exclusive. Wilson Produce Co v. Penn. R. R. Co., 14 I. C. C. 170, 173. (c) Track storage charges when asso- ciated with an interstate movement ap- pertain directly to interstate commerce; they represent the carrier's compensation for services rendered in connection with the transportation; a shipment is not completed until arrival at destination and delivery to the consignee; and the au- thority vested in Congress by the com- TRACK STORAGE, I (d)— II (e) 885 merce clause of the Constitution covsrs everything relating to the delivery of freight transported between the states, Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C. 170, 173. (d) Where, after the Commission has ordered track storage charges to be im- posed, shippers are guilty of unnecessary delay in unloading their cars or improp- erly insist upon using icars for storage purposes, the Commission will, upon ap- plication and showing to this effect, mod- ify its order and increase such charges. N. Y. Hay Exchange Assn. v. Penn. R. R. Co., 14 I. C. C. 178, 186. II. REASONABLENESS AND LEGAL- ITY. (a) Complainants attacked the reason- ableness of defendant's rules in New York City for assessing track-storage charges in that they did not permit any refund of charges collected for track storage in the event the weather conditions interfered with loading or unloading. These charges are primarily for the use of the track space occupied by cars in the yards and justified on the ground that they are necessary in order to bring about prompt release of track space in the interest of the general shipping public at certain points where business is very active and the track space correspondingly limited. On the other hand, car demurrage is as- sessed for the purpose of proper regula- tion of the car equipment of the carriers and has a general application to the car supply of the country uniformly. The de- murrage rules provided for a waiver of charges thereunder when weather condi- tions were such as to prevent loading or unloading without serious injury to the freight, on the ground that the public is entitled to a reasonable time in which to load or unload, which should not be short- ened because of serious adverse weather conditions. HELD, that the same pro- viso should apply with respect to track storage and the complainants are entitled to reparation for the amount of track- storage charges collected for the deten- tion of cars on days during which weather conditions were such that deduction has been made from demurrage charges on account thereof. Murphy Bros. v. N. Y. C. & H. R. R. R. Co., 21 I. C. C. 176. (b) Complainants attacked the track storage charges of defendants in its pro- duce yards at Pittsburg of $1 per car per day for the second 48 hours after deliv- ery; $3 per car per day for the third 48 hours and $4 per caii for each succeeding day or fraction thereof, imposed in ad- dition to the demurrage charges. HELD, such charges are reasonable, but defend- ant's track storage tariffs should be amended so as to waive such charges on account of weather interference. Joynes V. P. R. R. Co., 21 I. C. C. 458, 459. (c) Cars are primarily for transporta- tion and not for storage or warehouse pur- poses, and the public as well as carriers are vitally interested in the prompt re- lease of cars. Turnbull Co. v. Erie R. R. Co., 17 I. C. C. 123, 125. (d) Following the decision in N. Y. H E. Assn. v. Penn. R. R. Co., 14 I. C. C. 178, establishing track storage charges on hay at New York, defendant allowed 48 hours' free time computed from the first 7 a. m. after the car is placed on the team track; for the next succeeding two days, $1.00 per car per day or fraction thereof; for each' succeeding day, $2 per day or fraction thereof. Oats were bagged and weighed in the car after arrival, and it required about three days on the average to) unload a car. The job- ber purchasing of complainant shipper was given three days to load and cart away the oats. The unloading service performed by shippers was paid for by the jobber. Track storage grain com- peted with elevator grain, from which grain could be taken without track stor- age charges. A part of the two days' free time was consumed in lightering the oats from the Jersey side to the Manhat- tan side of the Hudson River. HELD, that in view of the fact that cars are pri- marily for transportation and not for stor- age or warehouse purposes, and that the public is vitally interested in the prompt release of cars, the charges were not un- reasonable. Turnbull Co. v. E. R. R. Co , 17 I. C. C. 123, 125. (e) The Penn. R. R. Co., after the ex- piration of 48 hours' free time, charged on fruit and produce, track storage on car- load freight, at the Pennsylvania Lines' Produce Yards, Pittsburg, as follows: For the first two days, $1.00 per car; for the next succeeding two days, $3.00 per car per day; for each succeeding day, $4.00 per car. The reasonableness of such rates was raised in Wilson Produce Com- pany V. Penn. R. R. Co., 14 I. C. C. 170. Upon rehearing, it appeared that these yards at Pittsburg were used by produce traders for selling purposes, and that about 95 per cent of all fruit and produce 886 TRACK STORAGE, II (f)— (I) received at Pittsbift'g was received there. The track storage charges were instituted to prevent the congestion of traffic and to release defendant's cars. The practice of using these yards hy produce traders for selling purposes was permitted in their interest and it would injuriously af- fect them if it were forbidden. In Balti- more, Philadelphia and other cities, in the same territory, fruit and prodi»ice were consigned to many different yards and conditions of ^congestion did not exist there. HELD, the track storage charges were reasonable and proper to enable de- fendant to clear its yards, release its cars and relieve it from the burden of furnish- ing warehouse facilities. Wilson Produce Co. v. Penn. R. R. Co., 16 I. C.C. 116, 121, 122. (f) The fact that other railroads do not impose track storage charges at Pitts- burg on fruit, does not constitute a cri- terion by which to test their legitimacy, for if they are neither unreasonable nor discriminatory defendant cannot be en- joined from imposing them merely be- cause its competitors do not see fit to do so. Wilson Produce Co. v. Penn R R. Co., 14 I. C. C. 170, 175. (g) The value of the service rendered by a railroad in supplying track storage is not conclusive of the reasonableness of the schedule; it must be judged in the light of its general purpose; and the fact that warehousemen in the city in ques- tion are content with a lower charge for storage service is not conclusive since the railroad does not hold itself out as a warehousman with respect to its cars and tracks. Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C. 170, 175. (h) Defendant allowed at Pittsburg 48 hours' free time for track storage. For the second 48 hours a charge of $1 a day was exacted; for the third 48 hours $3 per day; and for each succeeding day or fraction thereof $4, until the car was re- leased. HELD, such charges being for the purpose of inducing consignees to re- lease cars were legitimate. Wilson Pro- duce Co. V. Penn. R. R. Co., 14 L C. C. 170. (i) Defendant assessed track storage charges on fruit at Pittsburg in one of its yards. At its other yards in that city where fruit was not regularly received, no such charge was made on fruit or other icommodities, and defendant made no charge for storage at Baltimore or Phila- delphia, where there was water competi- tion, and where it did not appear there was competition with Pittsburg, nor did it make such charge at other cities in Pennsylvania. HELD, such facts did not indicate that the practice constituted a discrimination between localities, com- modities and citi€S, since it may have been forced upon the carrier by controll- ing circumstances. Wilson Produce Co. V. Penn. R. R. Co., 14 I. C. C 170. (j) Where its track storage tariff ap- plies only to produce yards, a carrier must refund charges for track storage col- lected for detention of cars in its "metal" yards. Wilson Produce Co. v. Penn. R. R. Co., 14 I. C. C. 170, 176. . (k) In most of the railroad yards in New York to which hay is consigned no storehouses are provided, and it has long been the custom for consignees to use the cars for storage purposes and sell the hay therefrom. Storage charges, in addi- tion to the regular demurrage charges, were assessed by defendant railroads. It appeared that such charges were neces- sary in order fairly to compensate the rail- roads for the cost of maintaining their yards and to expedite the conduct of busi- ness. Storage charges were assessed in San Francisco and Oakland, Cal., and in Pittsburg, Pa., but not elsewhere. No competitive conditions existed which would divert the marketing of hay from New York on account of these charges. The practical result was simply to impose a larger burden upon the consumer. HELD, such charges did not constitute an unlawful discrimination as to localities. N. Y. Hay Exchange Ass'n v. Penn. R. R. Co., 14 I. C. C. 178, 187. (1) The regular demurrage charges on hay consigned to defendants' yards in New York was $1 a day, allowing for a free period of 48 hours, beginning at 7 o'clock a. m. on the day next following that upon which the car was placed for unloading. The commission dealers in complainant association were accustomed to bring their buyers to the cars in the yards and makes sales therefrom. Acting with reasonable diligence they paid on an average of from $1 to $2 per ear for de- murrage charges. The total of such charges each year yielded to the defend- ants less than the interest upon the cap- ital invested in the yards. Defendants es- tablished, in addition to the regular de- murrage charges, the following track storage charges. For the first two days, nothing; for the third day, $1; for the fourth day, $2; for the fifth day, $3; for TRACK STORAGE, II (m)— TRANSPORTATION, §1 (i) 887 the sixth day, $4, and for the seventh day and each succeeding day, $5. It appeared that shippers had been unnecessarily de- taining cars under load in the yards and that some 1,000 cars were so detained for ten days and over in New York and Brooklyn. HELD, the storage charges were excessive and should be reduced to $1 per day for the third and fourth days and $2 per day for the fifth and subse- quent days, in addition to the regular de- murrage charges. N. Y. Hay Exchange Ass'n V. Penn. R. R. Co., 14 I. C. C. 178, 186. (m) Demurrage charges are imposed as a penalty to influence shippers prompt- ly to unload and release the equipment of the railroad, and track storage charges, in addition to regular demurrage charges, are allowable as are reasonably required to prevent unnecessary delay in the dis- charge of carload freight. N. Y. Hay Ex- change V. Penn. R. R. Co., 14 I. C. C. 178, 185. TRAIN MILE REVENUE. See Evidence, §8. TRANSIT. See Facilities and Privileges, §15. TRANSPORTATION. I. WHAT IS TRANSPORTATION SERVICE. §1. In general. II. DUTY OF CARRIER TO TRANS- PORT. §2. In general. §3. Company material. §4. Collection of charges. §5. Delivery. §6. Notifying iconsignor of re- jection. §7. Prompt and safe carriage. §8. Special service. §9. State interference. §10. Unloading at terminal. §11. When transit ends. * III. OPERATION OF RAILROAD. §12. Right of carrier to make regulations. §13. Economy of management. §14. What are operating ex- penses. CROSS REFERENCES. See Assorting Packages; Crimes, §12; Exclusive Contract; Facilities and Privileges; Refrigeration, §13; Tap Lines; Track Storage; Water Car- riers. I. WHAT IS TRANSPORTATION SER- VICE. §1. In General. See Allowances, §10, §11, §12; Bag- gage Transfer, I (d); Tap Lines, §3 (1) (b), §3 (2) (b). (a) The Commission has no jurisdic- tion over local baggage transfer agencies, their business not being a transportation service, but merely incidental thereto. Cosby V. Richmond Transfer Co., 23 1. C. C. 72, 74. (b) Whether a company or person claiming to be a common carrier is a com- mon carrier at all and for all purposes is a question of fact, and whether the ser- vice performed for a particular person is a service of transportation or an indus- trial service is also a question of fact. The Tap-line Case, 23 I. C. C. 277, 292. Cc) What is a plant facility cannot also be a common carrier for the plant, and what is an industrial service cannot also be a service of transportation. The Tap-line Case, 23 I. C. C. 277, 298. (d) Trimming or leveling coal in tCe^ holds of ships is a necessary service in connection with the transportation of coal by water, and, where performed by the rail carriers, it must be regarded as a part of the delivery. Whether or not de- fendants might legally be compelled to render such service, when they undertake to do so, any charge therefore is subject to regulation by the Commission. New England Coal & Coke Co. v. N. & W. Ry. Co., 22 I. C. C. 398, 400. (e) The dumping and "trimming" or leveling of coal in a vessel are regarded as a part of the transportation service where such acts are contracted to be per- formed by the railroads. New England Coal & Coke Co. v N. & W. Ry. Co., 22 I. C. C. 398, 401. (f) Transportation includes the fur- nishing of a car. Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 117. (g) A telegraph office at a station is no part of the transportation service. Southwestern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (h) A telephone office at a station is no part of the transportation service. Southwestern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (i) A barber shop at a station is not part of the transportation service. South- 888 TRANSPORTATION, §1 (j)— §2 (g) western Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (j) The transfer service at a station is no part of the transportation service. Southwestern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (k) A restaurant at a station is no part of the transportation service. South- western Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (1) Cab offices at stations are no part of the transportation service. Southwest- ern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (m) A news stand at a station is not part of the transportation service. South- western Produce Distributers v. W. R. R. Co., 20 I. C. C. 458, 460. (n) Transportation from a seaport of the United States or an adjacent foreign country to an interior American destina- tion in completion of a through movement of freight from a port of a foreign but not adjacent country, whether upon a joint through rate or upon a separately estab- lished or proportional inland rate appli- cable only to imports moving through, is not a "like service" to that of the trans- portation independent and complete with- in itself of traffic starting at such do- mestic port, though bound for the same destination. Pittsburg Plate Glass Co. V. P. C. C. & St. L. Ry. Co., 13 I. C. C. 87, 100. N. DUTY OF CARRIER TO TRANS- PORT. §2. In General. See Common Carrier, §6; Equaliza- tion of Rates, §3 (s) ; Facilities and Privileges, §1 (g). (a) Railroad icompanies may contract with shippers for a single transportation or for successive transportations, subject though it may be to a change of rates in the manner provided in the Interstate Commerce Act. I. C. C v. C. G. W. Ry. Co., 209 U. S. 108, 119, 28 Sup. Ct. 493, 52, L. ed. 705. (b) Under Section 1 of the Act as amended June 29, 1906, providing that "it shall be the duty of every carrier sub- ject to the 'Provisions of the Act to pro- vide and furnish such transportation upon a reasonable request therefor," the term transportation includes all kinds of in- strumentality of shipment and carriage. United States v. B. & O. R. R. Co., 1«5 Fed. 113. 121. (c) Transportation does not fail to constitute interstate commerce, within the meaning of the Act as amended, from the fact that the carrier performs the service gratuitously. United States v. Wells Fargo Express Co., 161 Fed. 606, 613. (d) The N. P. Ry. Co., being the only line having rails extending to South To- coma, is entitled, in protection of its in- vestment, to conduct traffic between South Tacoma and other points on its line on a preferred basis; and shippers who desire to use a competing line ought not to object to paying, in addition to the Tacoma rate, a reasonable charge to the N. P. Ry. Co. for its local haul between Tacoma and South Tacoma. Public Ser- vice Co. of Wash. V. N. P. Ry. Co., 23 I. C. C. 256. (e) A shipper may not use a carrier subject to the Act or its agent as his agent for the purpose of receiving con- signments of property and rebilling the same in order to break an interstate journey or make an intrastate one. The Commission's authority is confined to carriers subject to the Act, and until a carrier becomes subject to the Act vol- untarily or as a matter of law, the Com- mission's rule as to a shipper availing himself of such carrier as his agent does not apply. (Lane, comm'r, concurring opinion.) In Re Transportation by the C. & O. Ry. Co., 21 I. C. C. 207, 209. (f) The Act does not contemplate that movements of interstate traffic may de- pend merely upon the willingness of car- riers to accommodate shippers. Brook- Rauch Mill & Elevator Co. v. St. L. I. M. & S. Ry. Co., 21 I. C. C. 651, 653. (g) Complainant shipped a carload of corn from Omaha, Neb., to Little Rock, Ark., over the Iron Mountain R. R., to be there milled and reshipped to Fordyce, Ark., over the Cotton Belt R. R. The ship- ment moved under a tariff naming a through rate from Omaha to Fordyce via Argenta, Ark., to which the inbound and outbound carriers were parties, in connec- tion with a later tariff granting transit privileges at Little Rock, a point not on the Cotton Belt's line, its junction with the Iron Mountain R. R. being at Argenta. To this later tariff the Cotton Belt R. R. was not a party. Both carriers refused to furnish transportation equipment for the outbound movement from Little Rock, each claiming it was the duty of the other to do so. HELD, that the Cotton Belt's obligation under the tariff to which it was TRANSPORTATION, §2 (h) — (q) 889 a party does not accrue until delivery to its own rails and the duty to furnish equipment for outbound movements from complainant's mill rests upon the inbound carrier, the Iron Mountain. Brook-Rauch Mill & Elevator Co. v. St. L. I. M. & S. Ry. Co., 21 I. C. C. 651, 656. (h) If a carrier transports private cars of any class, it must in like manner and upon like terms transport all private cars used for the same or similar purposes. Chappelle v. L. & N. R. R. Co., 19 I. C. C. 56, 59. (i) A road is built and operated as a whole. Traffic Bureau of Merchants' Ex- change of San Francisco v, S. P. Co., 19 I. C. 259, 261. (j) It is the duty of an interstate car- rier to receive interstate shipments, issue receipts therefor, indicate on waybills the final destinations, and transport and de- liver to its connecting carriers; and it is the duty of connecting carriers to trans- port and deliver at destinations, each car- rier charging for its service its legally published rate. Corporation Commission of Oklahoma v. C. R. I. & P. Ry. Co., 17 I. C. C. 379. (k) The chief function of a common carrier is to carry, at reasonable rates traffi'3 tendered to it. As a general rule, an interstate carrier has no right, at least under ordinary circumstances, to choose, or in any way to control, the markets in which its shippers may buy or sell their wares. Its duty is to transport the mer- chandise of shippers in accordance with their reasonable instructions, and it may demand nothing beyond a reasonable com- pensation for the services rendered. It cannot force its services upon a shipper or insist upon carrying his shipment to one market when he desires to reach an- other. It has no right to insist that a shipment shall go to the end of its rails if the shipper desires it to be diverted at an intermediate point to another market off its rails. Nor may a carrier accom- plish these results indirectly by any un- reasonable adjustment of its rate sched- ules with that end in view. It cannot lawfully compel the shipping public to contribute to its revenues on any such grounds. Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co., 15 I. C. C. 460, 464. (1) The operation of a rule that inflam- mable oils will be delivered but one day in a week unduly prefers large shippers with tank stations from which they make deliveries by wagon. National Petroleum Ass'n V. L. & N. R. R. Co., 15 1. C. C. 473, 476. (m) The questions of the use of ad- ditional equipment and the expense in- volved to the carriers are not controlling in determining whether the operation of a railroad limiting shipments to certain days of the week is unjustly discrimina- tory against any class of shippers. Na- tional Petroleum Ass'n v. L. & N. R. R. Co., 15 I. C. C. 473, 477. * (n) A carrier cannot be compelled to make free out-of-line hauls in order to serve the interests of grain dealers of a particular city. Kansas City Transporta- tion Bureau v. A. T. & S. F. Ry. Co., 15 I. C. C. 491, 496. (o) It is the duty of a common carrier to receive and carry, upon reasonable terms, all goods tendered in suitable con- dition, and it can not lawfully discrim- inate in favor of any person, product or 'ocality. Standard Lime & Stone Co. v. Cumberland Valley R. R. Co., 15 I. C. C. 620, 622, 623. (p) The relations between shipper ani carrier are different from those between private enterprises. Piieblo Transp. Ass'n V. S. P. Co., 14 I. C. C. 82, 85. (q) A state statute prescribed a pen- alty against carriers for refusal to accept freight for shipment. Plaintiff tendered to defendant in such state goods for ship- ment to another state. Defendant's line did not reach, and it had not filed with the Interstate Commerce Commission a joint rate, to the destination in question. The Interstate Commerce Act, section 6, requires a carrier to file with the Commis- sion rates to all points on its own line and, where joint rates have been estab- lished with other carriers, to file such rates. HELD, defendant was liable under the state statute for failure to accept th9 goods. If it had failed to comply with the Federal statute in filing rates, this did not relieve it of its duty to receive the freight. It could not be expected that a freight rate to every railroad section in the Union must be established and pub- lished before defendant could receive freight for any point outside the state. The Federal statute does not prohibit the receipt or forwarding of a single ship- ment, but forbids the carrier to "engage or participate in the transportation of passengers or property" interstate, with- out filing its rates. It is the business of a common carrier, which the defendant is 890 TRANSPORTATION, §3 (a)— §5 (a) forbidden to exercise without filing rates. Defendant could have received the goods to he shipped to the end of its line, there to be delivered to other carriers to be transported to destination, and a hill of lading made out showing such fact, (Brown and Walker, J. J., dissenting.) Reid V. Southern Ry. Co., 153 N. C. 490, 493; 69 S. E. -GIS. §3. Company Material. See Evidence, §46. (a) Carriers buying what would ulti- mately become company material, con- tracted with shippers located off their lines and agreed that if the vendor would bill the shipment beyond a designated junction point, at which their own lines and the lines of the initial carriers meet, the purchasing carrier would absorb its own division of the joint through rate, and the shippers assume only that portion of the joint through rate which accrued to the initial carriers as their division of the rate up to the junction point designated in the billing. HELD, this practice re- sults in the application of a portion of a joint rate from the point of origin to the junction point for the benefit of a par- ticular shipper, which is not published for the public a* large nor filed with the Interstate Commerce Commission under section 6 of the Act. Nor is it material whether the contractor for a carrier, or the purchasing carrier itself, is the con- signor. In either case the shipment should be billed and continuously trans- ported from point of origin through the junction point of the purchasing car- rier and to the point of final desti- nation on the purchasing carrier's line. The purchasing carrier is then clearly entitled to its division of the joint rate and the charge which it must pay on its shipment of material to the junction point is the division of the rate accruing to the initial carrier and connections, if any, up to the junction point in question. If the shipment is billed or is actually car ried only to the junction point of the pur- chasing carrier, whether the carrier or it? contractor or other private party acts a? consignor, the division of a joint rate can- not apply unless this division has been lawfully published as applicable to move- ments to such junction point for ship ment beyond. The Act to Regulate Com- merce gives no indication that either car- riers or contractors who furnish company materials and supplies are to be preferred over other individuals so far as rates are concerned. The published rate is the only lawful rate and is applicable to all alike without distinction. If one shippsr is to have the advantage of such a di- vision of a through rate then all other shippers should have the same advantage, and the only way to secure this advantage to one is to publish it available for all. A carrier acting in the capacity of shipper or consignor stands upon a footing of ab- solute equality with every other shipper with respect to the application of pub- lished rates to such shipments except in regard to that part of a joint rate which accrues upon the purchasing carrier's own line. Practice condemned and complaint dismissed. Beekman Lumber Co. v. St. L. & S. F. R. R. Co., 21 I. C. C. 270, 272, 273, 275. (b) The local haul to a junction point is a different service from that performed to the same point as part of a through haul to a destination beyond, and the fact that fictitious billing may be resorted to to secure the unlawful application of the division of a joint rate for that service is no reason for condemning the lawful prac- tice of billing bona fide through ship- ments to ultimate destination at the through rate. False or fictitious billing of company material with intent to de- feat the application of the lawful rate for the service actually performed like other fraudulent practices with like intent would subject the guilty party to the pen- alties of the law for offenses of this sort in general. Beekman Lumber Co. v. L. Ry. & N. Co., 21 I. C. C. 280, 282. §4. Collection of Charges. (a) Under the law and the long es- tablished custom a carrier has the right to require prepayment of its charges, or to transport the freight and collect all of such charges on delivery thereof, or to accept part of the charges in prepayment and collect the remainder upon delivery. In re Transportation of Company Mate- rial, 22 L C. C. 439, 440. §5. Delivery. See Express Companies, §1 (I); Routing and IVIisroutlng, §3 (k). (a) In the absence of special contract or usage to the contrary, under the com- mon law, carriers by land are bound to deliver or tender goods to consignee at his residence or place of business, and until this is done they are not relieved from responsibility as carriers. This rule, however, never has applied to railroads. They are exempt from personal delivery and bound only to carry the goods to the TRANSPORTATION, §6 (a)— §11 (a) 891 depot or station to which they were con- signed and there haul or place them in a warehouse ready for delivery whenever the consignee or owner calls for them, after notifying the consignee or owner of their readiness to deliver. A. T. & S, F. Ry. Co. V. I. C. C, 188 Fed. 229, 237; S. P. Co. V. I. C. C, 188 Fed. 241. §6. Notifying Consignor of Rejection. See Notice. (a) It is to the interest of the public that the consignor should be promptly notified when a shipment is not delivered. Kehoe & Co. v. N. C. & St. L. Ry. Co., 14 I. C. C. 555, 556. (b) The Commission will not impose on the carrier the duty of telegraphing to consignor in the event that shipment is refused by consignee or latter cannot b-e found. Present practice not unreason- able. Kehoe & Co. v. N. C. & St. L. Ry. Co., 14 I. C. C. 555. §7. Prompt and Safe Carriage. (a) The prompt and safe carriage of goods is an obligation enforced upon car- rier by the common law and not by the Act to Regulate Commerce. Blume & Co. V. Wells, Fargo & Co., 15 I. C. C. 53, 54. §8. Special Service. See Express Companies, §2; Tlirough Routes and Joint Rates, §15 (vv). (a) A speed of between ten and eleven miles an hour, including stops at divi- sional points, is nothing more than ordi- nary merchandise schedule. Arlington Heights Fruit Exchange v. S. P. Co 19 I. C. C. 148, 152. (b) Ice moved from Jersey points to Hoboken and Jersey City and was loaded during the day and delivered for unload- ing the next morning. From Mountain points, Pennsylvania, to Philadelphia and the Hudson River, it was loaded one day, taken from the ice-house the following morning and delivered for unloading the next morning. The ice was brought in from the ice houses over switching lines a mile or more in length by the carriers and usually moved in solid trains to point of destination. From Mountain points to Hoboken and New Jersey the distance was 110 miles. To Philadelphia from mountain points the distance was 140 miles. The traffic was loaded for the most part into ordinary box cars. HELD, while the service rendered might properly be styled "special" service, it was not an "expedited" service. Mountain Ice Co. v. D. L. & W. R. R. Co., 15 I. C. C. 305, 316. §9. State Interference. See Express Companies, §1!/2; Inter- state Commerce, §4. (a) Section 5258, Rev. Stat, of the U. S., authorizes every railroad company to carry upon and over its road freight and property from any state to another state and to connect with roads of other states so as to form continuous lines for the transportation of the same te the place of destination. HELD, the Interstate Com- merce Act, taken in connection with this statute, does not forbid the enforcement of a state statute providing for an attach- ment within the state of a freight car, not in actual use, owned by a foreign rail- road company and sent to the state in prosecution of interstate traffic. De Rochemont v. Railroad, 75 N. H. 158, 163, 71 A. 868. §10, Unloading at Terminal. See Facilities and Privileges, §10; Tariffs, §15 (a); Terminal Facili- ties. (a) Duty of loading and unloading car- load freight rests on shipper. Commer- cial Club of Omaha v. B. & "O. R R. Co., 19 1. C. C. 397, 401. (b) A carrier should grant reasonable time after arrival to unload. Peale. Pea- cock & Kerr v. C. R. R. Co. of N. J., 18 I. C. C. 25, 35. §11. When Transit Ends, See Interstate Commerce, §1; Track Storage, I (c), (a) Complainants shipped stock sheep Dryden and Sanderson, Tex., to Soldani, Okla., via G. H. & S. A. R. R. to San An- tonio, Tex., thence via M. K. & T. R. R. to Fort Worth, Tex., 563 miles from Dry- den and 584 miles from Sanderson, thencs via G. C. & Santa Fe and A. T. & Santa Fe Rys. to Soldani, 314 miles further. Charges to Fort Worth were paid of 30c per 100 lbs. There the sheep were un- loaded, fed, watered and reloaded and transported under new bills of lading to destination under a rate of 2414c per 100 lbs. Complainant asked reparation to the extent the charges exacted exceeded the rate on stock cattle. HELD, that the freight charges up to Fort Worth having been paid at that point, the property was delivered into the possession of the ship- per and a new contract with another car- rier was executed, although it was the in- tention undoubtedly of the shipper to for- ward the sheep from point of origin to 892 TRANSPORTATION, §11 (b)— §12 (b) Soldani. His intention was immaterial and the question whether a particular shipment is subject to state or federal laws must be determined by examination of the contract for transportation. The sheep were consigned to an agent of the complainants at Fort Worth and the original bills of lading issued to that point. As to the movement to Fort Worth the charges therefor were for an intrastate movement and not within the jurisdiction of the Commission. Upon the record as it stands the rate from Fort Worth to Soldani not found un- reasonable. Complaint dismissed. Big Canon Ranch Co. v. G. H. & S. A. Ry. Co. 20 I. C. C. 523. (b) Complainant shipped from Metrop- olis, 111., to itself at Chicago, via I. C. R. R. "care Pere Marquette Railway at River- dale, 111.," one carload of grape baskets. Before arrival of the car at Riverdale com- plainant instructed the Pere Marquette to forward it to C. W. Harper, Lawton Mich. At Riverdale the P. M. Ry. took possession of the car, advanced the charges thereon to the I. C. R. R. and re- billed the shipment via its own line, Hartford, Mich., and the K. L. S. & C. R. R. The charges exacted were 19i/4c to Riverdale and 15c Riverdale to Lawton. Complainant contended the rates lawfully in effect were 10c Metropolis to Chicago, and 10c Chicago to Lawton. HELD, by the terms of the bill of lading issued by defendant I. C. R. R. only a movement from Metropolis, 111., to Chicago, 111., was contracted for and there was nothing to indicate that the shipment would ulti- mately find its way outside the state. Complainant's instructions to send the car to Lawton were not given to the I. C. R. R., which performed the haul to Chi- ca2:o, but were given to the P. M. Ry., which had nothing whatever to do with the haul to Chicago. Two separate and distinct movements comprised this trans- portation — an intrastate movement from Metropolis to Chicago and an interstate movement from Chicago to Lawton. The shipment did not begin to move in inter- state commerce until delivered to the P. M. Ry. at Riverdale. Over the intra- state movement the Commission has no jurisdiction, and the carriers who per- formed the interstate movement are not parties to the complaint. Complaint dis- missed. Wells-Higman Co. v. G. R & I. Ry. Co., 19 I. C. C. 487, 489, 490. (c) Where grain is shipped on a local bill of lading and upon local rates to an elevation point, it is not in transportation during the time of elevation, nor does transportation again begin until the grain has been loaded in the cars for outbound shipment in accordance with the tariff publications of the carriers governing such carload shipments. Gund & Co. v. C. B. & Q. Ry. Co., 18 I. C. C. 364, 368- (d) Complainant billed lumber from points in Washington to Aberdeen, S. D., which was intended for complainant's lumber yard at Scranton, N. D. At the time of shipment a line in process of construc- tion from Aberdeen to Scranton was not yet opened up for traffic and no physical connection existed between the line of the initial carrier and the proposed line. Complainant drayed the lumber from the station of the initial carrier at Aberdeen and then piled it up at the proposed sta- tion of the new line. Later the two lines were connected and a through rate estab- lished to Scranton. Complainant paid the local rate to Aberdeen and several months elapsed before shipments moved from Aberdeen to Scranton on the new line. HELD, the movement was local from point of origin to Aberdeen and local from Aberdeen to Scranton, and complainant was not entitled to the benefit of the 'ower through rate subsequently estab- lished. Central Lumber Co. v. C. M. & St. P. Ry. Co., 18 I. C. C. 495, 497. III. CONTROL OF RAILROAD. §12. Right of Carrier to Make Regula- tions. See Facilities and Privileges, §18 (f), (g); Import Traffic, II (a); Inter- state Commerce Commission, §1 (CO); Minimums, §8 (b) ; Reason- ableness of Rates, §84 (aa) ; Switch Tracks and Switching, §8; Trans- portation, §2 (m). (a) The Northern Pacific Railway, being the only line having rails extending to South Tacoma, Wash., a point just out- side the Tacoma switching district, is en- titled, in the protection of its investment, to conduct traffic between South Tacoma and other points on its line on a preferred basis, and shippers who desire to use com- peting lines ought not to object to paying in addition to the Tacoma rate a reason- able charge to the N. P. Ry. for its local haul between Tacoma and South Tacoma. Public Service Commission, Wash., v. N. P. Ry. Co., 23 L C. C. 256. (b) Rules, regulations and charges af- fecting the ultimate cost of transportation must be made with a reasonable regard for the nature of the commodity trans- TRANSPORTATION, §12 (c)— UNDERCHARGES ported and without undue discrimination as between localities or shippers. Sunder- land Bros. Co. V. St. L. & S. P. R. R. Co., 23 I. C. C. 259, 262. (c) The rule enforced by defendant restricting the receipt and shipment of L. C. L. lots of coal oil and products of petroleum to one day in each week sub jects complainants to unreasonable preju- dice. Any rule which restricts shipments in question to less than two days in any week is unreasonable, and the days se- lected should be separated by at least two intervening days. National t*etroleum Ass'n V. L. & N. R. R. Co., 15 I. C. C. 473, 477. (d) Carriers have the right to trans- port certain commodities under reason- able rules and regulations respecting their receipt, carriage and delivery. National Petroleum Ass'n v. L. & N. R. R. Co., 15 I. C. C. 473, 476. (e) More or less contamination results where shipments of petroleum and its products are transported with miscella- neous freight, especially to food products. Despite precautions, leakage results and gives rise to damage claims to food and other commodities injured by odor or contamination. HELD, that reasonable regulations may be made by the carriers for the transportation of said commodity, including a reasonable limitation of the time when such shipments will be re ceived. National Petroleum Ass'n v. L. & N. R. R. Co., 15 I. C. C. 473, 476. (f) Where carload shipments of fruits and vegetables are made to a consignee in Chicago, who is the owner of the en tire contents of the car, and where de- livery is made upon the team tracks of the defendant carriers, defendants must furnish the necessary help to bring the packages making up said carloads to the car door and there make delivery to the consignee, and the rule of defendants re- quiring consignees to take these pack- ages inside the car is unjust and unrea- sonable. Wholesale Fruit & Produce Ass'n v. A. T. & S. F. Ry. Co., 14 I. C. C. 410, 420. §13. Economy of Management. See Reasonableness of Rates, §12. (a) It is for the public interest that every transportation service should be performed by the most economical method since that must ultimately result in the lowest transportation charge. Al- bree v. B. & M. R. R. Co., 22 I. C. C. 303, 310. (b) It is not apparent that the public should stand responsible for mistakes made in the management of railroads. In re Advances in Rates — Eastern Case, 20 I. C. C. 243, 267; Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106, 122. (c) It is a false theory of transporta- tion which seeks to force a shipper to avail himself of a less-than-carload serv- ice, which is more expensive for the purpose of increasing the gross revenues of the carrier. The true object should be to perform the service in the most eco- nomical manner and to charge for the service a reasonable compensation. Flor- ida Fruit & Vegetable Ass'n v. A. C. L. R. R. Co., 17 I. C. C. 552, 564. §14. What Are Operating Expenses. (a) Interest upon funded debt is a fixed charge in nature of operating ex- pense. In re Advances in Rates — Eastern Case, 20 I. C. C. 243, 251. (b) Permanent improvements are not part of the operating expense. In re Ad- vances in Rates — Eastern Case, 20 I. C. C. 243, 266. TRANSHIPMENT. See Demurrage, §15 (f ) ; Long and Short Hauls, §12 (2) (e). TRIMMING. See Transportation, §1 (d), (e). TRUCKMEN. See Common Carrier, §3 (ff). UNEARNED INCREMENT. See Advanced Rates, §6 (5) (b). UNDERCHARGES. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. §1'/2. Jurisdiction of courts. II. DUTY OP CARRIER TO COLLECT. §2. In general. §3. Defences. III. EVIDENCE. §4. Admissibility of tariff copies. §5. Burden of proof. §6, Testimony as to rate. I. CONTROL AND REGULATION. §1. Jurisdiction of Commission. See Interstate Commerce Commis- sion, §12; Procedure Before Com- mission, §14 (a). 894 UNDERCHARGES, §1 (a)— §3 (d) (a) The Commission is without au- thority to adjudicate a claim of a railroad company against a shipper. Laning-Har- ris Coal & Grain Co. v. St. L. & S. F. R. R. Co., 15 I. C. C. 37, 38. (b) The Commission is without au- thority to enter an order requiring a ship- per to make good an undercharge, but shippers must understand their liability under the law for the failure or refusal to pay the published. rates. Falls & Co. v. C. R. I. & P. Ry. Co., 15 I. C. C. 269, 273. §1^. Jurisdiction of Courts. See Courts, §11 (g). II. DUTY OF CARRIER TO COLLECT. §2. In General. (a) Settlement with the complainant by one defendant on the erroneous basis of a 19c division of the 24c rate to Lin- wood was held an undercharge and com- plainant ordered to return the same. Switzer Lumber Co. v. A. & M. R. R. Co., 22 L C. C. 471, 476: (b) A carrier may waive its right to demand prepayment and accept a ship- ment with the understanding that it will collect from the consignee; but if it does not collect from the consignee it must look to the consignor for payment. Boiss Commercial Club v. Adams Express Co., 17 L C. C. 115, 121. (c) Where a carrier has by mistake accepted payment of a rate lower than the published rate, it is its duty to demand of the shipper the balance due. Bovaird Supply Co. V. A. T. & S. F. Ry. Co., 13 L C. C. 56, 67. (d) While good faith will doubtless save the agent of a carrier, quoting less than the lawful rate, and the shipper, from the charge of criminal intent, the fact that the loss is suffered by the ship- per in relying on such lower rate cannot .result in binding the company making it, nor can it result in protecting the shipper receiving its benefits. B. & O. S. W. Ry. Co. v. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 909. (e) Where the agent of a carrier has by mistake quoted and collected a charge less than the published rate, the carrier may sue to collect the difference between the rate collected and the lawful rate. B. & O. S. W. Ry. Co. v. New Albany Box & Basket Co. (Ind. 1911), 94 N. E. 906, 909. (f) A carrier cannot estop itself from the right to collect the published inter- state rate. Louisiana Ry. & Nav. Co. v Holly, 127 La. 615, 619, 53 So. 882. (g) A carrier collected and a shipper paid freight charges on the supposed weight, neither having knowledge of the actual weight of the shipment. Later the carrier learned the shipment weighed more than it was estimated. HELD, un- der sections 2 and 6 of the Act, the car- rier could sue to collect the deficiency, on the basis of the published rates, although neither it nor the shipper intended to base the charges on other than the true weight. Penn. R. R. Co. v. Mogi, 71 Misc. 412, 415, 128 N. Y. Supp. 643. (h) Where the published interstate rate is proved, its reasonableness cannot be questioned by the shipper in an action by the carrier in a state court to collect the same. Oregon R. & Nav. Co. v Cool- idge (Ore. 1911), 116 P. 93, 95. §3. Defenses. See Courts, §2. (a) Where a carrier delivers an inter- state shipment to the consignee without collecting the charges and later brings suit to recover the same according to the published schedule, nothing in the amend- ment of June 29, 1906, to the Act, pro- viding that the carrier shall not collect a greater or less compensation from one shipper than from another, prevents the consignee from recouping in the suit for damages suffered by the goods in transit through the carrier's negligence. Battle V. Atkinson, 9 Ga. App. 488, 492, 71 S. E. 775. (b) Where the consignee of an inter- state shipment has been quoted and has paid less than the published rate, the de- livering 'Carrier may sue to recover the deficiency despite the fact that the initial carrier may have misrouted the shipment, since the shipper's remedy for such misrouting is against the initial carrier. Louisiana Ry. & Nav. Co. v. Holly, 127 La. 615, 619, 53 So. 882. (c) In a suit by a carrier to recover the published interstate rate, the defend- ant cannot set up as a valid plea the un- reasonableness of such rate, since original jurisdiction over the question of reasonableness in establishing interstate rates is vested with the Interstate Com- merce Commission. B, & O. R. R. Co. v. La Due, 128 App. Div. 594, 596; 112 N. Y. Supp. 964. (d) In a suit at law in a state court by a carrier to collect its lawfully pub- UNDERCHARGES, §4 (a)— WATER CARRIERS 895 lished rate, the defendant shipper set up in its answer that the rate demanded was greater for the shorter than for the longer haul made under the same circumstances and alleged that there existed no reason, by way of peculiar geographical position, competition of other transportation facili- ties or trade, or other peculiar conditions, why a greater charge should be made for transporting the coal for the haul in ques- tion than the charge exacted for a haul from the same point of origin in the same direction to a point more distant. It ap- peared by the pleadings that the plaintiff carrier had obtained no permission from the Commission to charge the rate de- manded. HELD, the answer, upon de- murrer, stated a good defense to the suit. Great Northern Ry. Co. v. Loonan Lum- ber Co. (S. D. 1910), 125 N. W. 644, 646. III. EVIDENCE. §4. Admissibility of Tariff Copies. (a) In an action in a state court by a carrier to recover the published rate, plaintiff offered copies of portions of the schedules filed with the Interstate Com- merce Commission for the purpose of proving the lawful rate. ,The secretary of the Commission, in addition to reciting his custody of the schedules and tariffs, stated that the copies had been compared by him with the originals in his custody and were correct transcripts. HELD, the copies were properly admitted in evidence under a state statute governing the ad- mission of certified copies. Oregon R. & Nav. Co. V. Coolidge (Oreg. 1911), 116 P 93, 94. §5. Burden of Proof. See Evidence, I. (a) Where a carrier sues to collect of a shipper charges based on an alleged agreement to pay the freight at the legal rate established in pursuance of the Inter- state Commerce Act, and defendant de- nies both the agreement and the rate, it is incumbent on plaintiff to prove them. Oregon R. & Nav. Co. v. Coolidge (Oreg. 1911), 116 P. 93, 94. §6. Testimony as to Rate. (a) In a suit by a carrier to collect the published rates, a statement in a certifi- cate by the secretary of the Interstate Commerce Commission, that there were no through joint rates on file with the Commission from and to the points of origin and destination applicable to the shipments in question, is not admissible, the construction of the legal effect of the tariffs being for the court. Oregon R. & Nav. Co. V. Coolidge (Oreg. 1911), 116 P. 93, 94. (b) In a suit by a carrier to collect its published interstate rate, an expert wit- ness is properly refused permission to de- clare from the tariff sheets the legal rate in effect, such construction being for the court. Oregon R. & Nav. Co. v. Coolidge (Oreg. 1911), 116 P. 93, 94. UNITED STATES COURTS. See Courts, §3, IV. UNPUBLISHED RATES. See Evidence, §60. VALIDATION. See Passenger Fares and Facilities. §8. VENUE. See Crimes, §7 (d). VERDICT.. See Crimes, §31. VOLUNTARY RATES. See Advanced Rates, §8 (1); Differ- entials, §5 (e); Discrimination, §3 (ff) ; Equalization of Rates, §3 (oo), §4 (2) (a), Reasonableness of Rates, §76 (s) (t) 628 Reasonableness of Rates, §67 (w) (x) 629 INDEX TO COMMODITIES 987 COALr— Cont'd Page Reconsignment, §3 (b) 699 Reparation, §17 (d) 741 Blacksmith: Reasonableness of Rates, §67 (h) 626 Reasonableness of Rates, §67 (o) (p) 627 Evidence, §12 (4) (a) (b) 320 Procedure Before Commission, §15 (b) 552 Routing and Misrouting, §7 (o) 763 Cannel: Reasonableness of Rates, §67 (q) 627 Reasonableness of Rates, §67 (aa) 629 Slack: Reasonableness of Rates, §67 (1) 626 Reasonableness of Rates, §67 (x) (y) 629 COAL-TAR PAVING CEMENT. Reasonableness of Rates, §68 (a) 630 COALrTAR PAVING PITCH. Reasonableness of Rates, §69 (a) 630 COBALT-NICKEL HYDRATE. Classification, §17 (q) 153 COCOANUT OLEINE. Classification, §18 (2) (a) 153 COCOANUT STEARIN. Classification, §18 (2) (a) 153 COFFEE. Classification, §7 (d) 139 Discrimination, §4 (1) 234 Discrimination, §4 (q) 237 COFFEEPOTS. Classification, §18 (3) (a) 154 COKE. Common Carrier, §3 (c) 164 Demurrage, §15 (g) 205 Discrimination, §3 (i) 226 Discrimination, §7 (n) 245 Evidence, §13 (1) (p) 324 Evidence, §28 (d) 340 Reasonableness of Rates, §23 (d) . . . : 598 Reasonableness of Rates, §70 (a) 630 Routing and Misrouting, §4 (cc) 756 Routing and Misrouting, §4 (bb) 764 Tariffs, §8 (j) .828 Througb Routes and Joint Rates, §14 (f ) 863 Through Routes and Joint Rates, §22 (e) 883 COLUMNS. Reasonableness of Rates, §105 (gg) 671 COMBINATION CAR. Tariffs, §7 (jj) 820 988 INDEX TO COMMODITIES COMPANY MATERIAL. Page Transportation, §3 (a) 890 COMPO-BOARD. Evidence, §1 (j) 316 CONDENSED MILK (See Milk). CONDUIT. Long and Short Hauls, §6 (e) (f) 457 COPPER. Evidence, §12 (7) (a) 320 CORK. Tariffs, §7 (g) 815 CORN (See Grain and Products). CORN SHUCKS. Reasonable Rates, §72 (a) 631 CORRUGATED IRON (See Iron). CORRUGATED STRAWBOARD BOXES. Tariffs, §7 (n) 816 COTTON. Advanced Rates, §19 (a) 45 Allowances, §7 (d) 54 Allowances, §8 (1) (a) (b) (c) 55 Allowances, §13 (a) 66 Any Quantity Rate, I (f ) 70 Blanket Rates, §9 (aa) 90 Compress Companies and Charges, I (a) (b) (c) (d) 167 Compress Companies and Charges, II (a) 167 Compress Companies and Charges, II (b) (c) 168 Compress Companies and Charges, II (d) 169 Crimes, §7 ( j) 186 Demurrage, §9 (b) 200 Discrimination, §9 (p) 263 Discrimination, §13 (e) 271 Equalization of Rates, §4 (2) (h) 299 Equalization of Rates, §4 (2) (r) 301 Equalization of Rates, §8 (f ) 311 Evidence, §20 (d) 337 Export Rates and Facilities, III (aa) 366 Export Rates and Facilities, IV (a) 370 Export Rates and Facilities, V (a) (b) 371 Facilities and Privileges, §2 (ee) 388 Facilities and Privileges, §3 (a) 389 Facilities and Privileges, §4 (a) 390 Facilities and Privileges, §15 (c) 397 Facilities and Privileges, §17 (k) 403 Facilities and Privileges, §18 (cc) 403 Facilities and Privileges, §20 (f) 407 Lighterage, §2 (a) 439 Compressed. Long and Short Hauls, §6 (c) 457 Reasonableness of Rates, §28 (b) 602 INDEX TO COMMODITIES 989 COTTON— Cont'd Page Reasonableness of Rates, §73 (a) (b) 631 Substitution of Tonnage, §2 ,(b) (c) 784 Substitution of Tonnage, §2 (d) 785 Substitution of Tonnage, §2 (m) 786 COTTON DRILLS. Through Routes and Joint Rates, §15 (z) 869 COTTON DUCK. Classification, §14 (a) 146 COTTON FACTORY PRODUCTS. Classification, §14 (e) 147 Classification, §17 (p) 153 Demurrage, §4 (b) 196 COTTON GARMENTS. Classification, §17 (f) 152 Evidence, §32 (b) 343 Through Routes and Joint Rates, §15 (x) 868 COTTON GOODS. Classification, §14 (d) 147 Classification, §17 (f ) 152 Classification, §17 (p) 153 Interstate Commerce Commission, §10 (h) 436 Long and Short Hauls, §10 (u) 471 Through Routes and Joint Rates, §15 (y) 868 COTTON LINTERS. Branch Lines, §2 (d) 104 Evidence, §47 (k) 348 Minimums, §8 (n) 510 Reasonableness of Rates, §74 (a) (b) 632 Reparation, §16 (zzzz) 741 Released Rates, §2 (b) (c) 711 Routing and Misrouting, §3 (g) 752 Routing and Misrouting, §5 (a) 760 Tariffs, §7 (nn) 821 Routing and Misrouting, §4 (t) 754 COTTON PIECE GOODS. Commodity Rates, §3 (d) 160 Discrimination, §10 (k) 266 Long and Short Hauls, §9 (p) 463 Long and Short Hauls, §9 (s) 464 Minimums, §7 (jj) 507 COTTON-SHODDY LINING. Reasonableness of Rates, §74 (a) 632 Evidence, §64 (m) 358 Reasonableness of Rates, §76 (a) 634 COTTONSEED AND PRODUCTS. Concentrating Rates and Privileges (aa) 169 Differential, §6 (a) 214 Discrimination, §4 (e) (ee) 231 990 INDEX TO COMMODITIES COTTONSEED AND PRODUCTS— Cont'd Page Discrimination, §9 (e) 261 Discrimination, §10 (j) 266 Facilities and Privileges, §4 (b) 390 Facilities and Privileges, §21 (w) 411 Interstate Commerce Commission, §9 (gg) 435 Reasonableness of Rates, §75 632 Reparation, §2 (k) 716 Reparation, §17 (i) 741 Special Contracts, §2 (z) 775 Special Contracts, §5 (h) 782 Terminal Facilities, §1 (c) (g) 834 Through Routes and Joint Rates, §11 (2) (i) 853 Through Routes and Joint Rates, §11 (2) (t) 857 Through Routes and Joint Rates, §11 (2) (w) 858 Through Routes and Joint Rates, §19 (f) 882 Cake: Evidence, §64 (t) 359 Facilities and Privileges, §16 (a) 401 Through Routes and Joint Rates, §13 (r). 862 Hulls: Claims, §6 (c) 129 Differential, §6 (c) 214 Evidence, §12 (8) (a) 320 Tariffs, §11 (a) 830 Meal: Claims, §6 (c) 129 Evidence, §12 (8) (a) 320 Facilities and Privileges, §16 (a) 401 Reasonableness of Rates, §32i^ (c) 607 Oil: Advanced Rates, §17 (i) 41 Advanced Rates, §18 (5) (a) 43 Discrimination, §7 (m) 245 Facilities and Privileges, §18 (c) 403 Through Routes and Joint Rates, §20 (f) 882 COUNTERS. Tariffs, §7 (q) (r) 817 CREAM (See also Dairy Products). Advanced Rates, §5 (4) (a) 17 Advanced Rates, §13 (e) 32 Advanced Rates, §19 (dd) 47 Evidence, §17 (n) 335 Express Companies, §11 (3) (a) 379 Express Companies, §11 (9) (b) (c) 381 Reasonableness of Rates, §111 (a) 673 Reasonableness of Rates, §111 (b) (d) 675 CREAM CANS. §11 (3) (a) 379 INDEX TO COMMODITIES 991 CROSS-TIES (See Lumber and Forest Products). Page CUCUMBERS (See Vegetables). CULLET. Routing and Misrouting, §4 (rr) 757 CUTTERS. Evidence, §28 (f) 340 Through Routes and Joint Rates, §15 (n) 867 CYPRESS (See Lumber and Forest Products). DAIRY PRODUCTS. See also Cream, Cheese, Butter, Milk. Evidence, §12 (10) (a) 320 Evidence, §12 (22) (a) 322 Reasonableness of Rates, §118 (f) 682 DOORS (See Lumber and Forest Products). DOOR FRAMES. Reasonableness of Rates, §105 (gg) 671 DREDGING MACHINE PARTS. Tariffs, §7 (sss) 824 DRYGOODS. Equalization of Rates, §4 (4) (h) 303 Express Companies, §11 (4) (a) 379 Tariffs, §7 (ii) 820 DRYING RACKS. Tariffs, §7 (uu) 822 DYNAMITE (See also Explosives). Explosives (a) 365 EARTHENWARE. Reasonableness of Rates, §44 (a) 613 EARTHENWARE CRUCIBLES. Classification, §18 (4) (a) 154 EGGS. Advanced Rates, §18 (10 (a) 45 Classification, §14 (g) 147 Evidence, §63 (n) 356 Express Companies, §11 (5) (a) 380 Express Companies, §24 (c) 385 Facilities and Privileges, §4 (c) (d) 390 Loss and Damage, §6 (u) 484 Reasonableness of Rates, §56 (a) (b) 618 Reasonableness of Rates, §40 (h) 611 Reparation, §2 (z) 719 Weights and Weighing, §5 (b) (cd) 902 EGG-CASE FILLERS. Discrimination, §4 (rr) 239 EGG CASE MATERIAL. Reasonableness of Rates, §79 (a) -634 ELEVATOR GUIDES. Tariffs, §7 (rrr) 824 992 INDEX TO COMMODITIES ELM HUB BLOCKS. Page Reasonableness of Rates, §80 (a) 635 EMIGRANTS' MOVABLES. Demurrage, §8 (ff ) 199 Reasonableness of Rates, §22 (c) 597 Tariffs, §7 (x) 818 Tariffs, §7 (uuu) (vw) (aaaaa) 825 Tariffs, §7 (ffff ) 827 Through Routes and Joint Rates, §15 (iii) 873 ENAMELED WARE. Tariffs, §7 (v) 818 ENGINES. Discrimination, §15 (e) 274 Tariffs, §7 (ccccc) 826 Through Routes and Joint Rates, §15 (kkk) 874 EXPLOSIVES (See also Dynamite, Gunpowder, Kanite, Masurite). Classification, §9 (a) 140 Narrow Gauge Railroads, I (c) 512 EXPRESS COMPANY MEN AND SUPPLIES. Express Companies, §8 (a) 376 FEED, MIXED. Substitution of Tonnage, §2 (h) (i) 785 FELT. Classification, §7 (c) 138 FENCING. Classification, §18 (5) (a) 154 Discrimination, §4 (hh) 233 Discrimination, §9 (q) 264 Minimums, §7 (i) 503 Proportional Rates, III (d) 559 FERTILIZER. Equalization of Rates, §1 (v) 287 Equalization of Rates, §4 (2) (t) 302 Equalization of Rates, §6 (dd) 310 Evidence, §12 (10) (a) (b) 321 Evidence, §12 (26) (a) 322 Evidence, §54 (c) 351 Facilities and Privileges, §20 (g) 407 Procedure Before Commission, §10 (2) (h) 546 Reasonableness of Rates, §40 (k) 612 Reasonableness of Rates, §81 635 FILING FOLDERS. Reasonableness of Rates, §107 (a).. 673 FIR (See Lumber and Forest Products). FIRE PLACES. Tariffs, §7 (11) 821 FISH. Express Companies, §9 (a) 377 Express Companies, §11 (6) (a) 380 Refrigeration, §5 (b) 710 INDEX TO COMMODITIES 993 FLAG POLES. Page Cars and Car Supplies, §8 (m) 114 Reparation, §19 (u) 744 FLAXSEED. Advanced Rates, §5 (3) (a) 16 Evidence, §12 (11) (a) 321 Overcharges, §9 (g) 516 Reasonableness of Rates, §82 (a) (b) 636 Reparation, §6 (d) 723 Reparation, §16 (cc) 737 FLESHINGS. Minimums, §7 (zz) 508 FLOUR (See also Grain and Products). Advanced Rates, §5 (1) (a) 14 Advanced Rates, §13 (m) 35 Differential, §6 (f ) 215 Discrimination, §9 (n) 262 Equalization of Rates, §3 (ee) 295 Equalization of Rates, §4 (1) (e) 298 Equalization of Rates, §6 (n) 308 Equalization of Rates, §6 (bb) 309 Evidence, §12 (12) (a) 321 Procedure before Commission, §2 (v) 538 Reasonableness of rates, §12^^ (c) 590 Domestic: Evidence, §13 (2) (1) 326 Evidence, §45 (g) 347 Evidence, §58 (aa) 352 Export Rates and Facilities, §1 (a) 365 Export: Evidence, §13 (3) (a) (1) 326 Export Rates and Facilities, III (ff) 368 Export Rates and Facilities, III (i) (j) (k) (1) 370 Export Rates and Facilities, V (bb) 371 Facilities and Privileges, §7 (b) 391 Facilities and Privileges, §8 (b) 392 Facilities and Privileges, §15 (d) 397 Interstate Commerce Commission, §1 (s) 428 Long and Short Hauls, §5 (bb) 448 Long and Short Hauls, §5 (i) 450 Long and Short Hauls, §12 (2) (a) 475 Reasonableness of Rates, §27 (h) 601 Reasonableness of Rates, §83 636 Reasonableness of Rates, §153 (e) 694 Reparation, §16 (x) 736 Storage (a) 783 Through Routes and Joint Rates, §2 (g) 843 Rye Flour: Reasonableness of Rates, §84 (d) 637 994 INDEX TO COMMODITIES FOODSTUFFS, Page Classification, §17 (a) 151 Routing and Misrouting, §7 (y) 764 FOREST PRODUCTS (See Lumber and Forest Products). FRUIT (See also Apples, Bananas, Cantaloupes, Grapes, Grape Fruit, Lemons, Oranges, Peaches, Pineapples, Strawberries). Assorting Packages (d) 73 Assorting Packages (b) (c) 72 Auction Company (a) 73 Blanket Rates, §2 (g) 79 Blanket Rates, §8 (b) 88 Blanket Rates, §11 (bb) (dd) 95 Branch Lines, §4 (b) 105 Discrimination, §15 (f ) , 274 Exclusive Contracts (c) 364 Expedited Service (b) 365 Facilities and Privileges, §1 (q) 388 Facilities and Privileges, §10 (v) 395 Interstate Commerce Commission, §14 (i) (k) 437 Interstate Commerce Commission, §14 (r) 438 Long and Short Hauls, §5 (k) 451 Long and Short Hauls, §6 (d) 457 Long and Short Hauls, §9 (t) 465 Precooling, II (d) 532 Precooling, II (e) 533 Precooling, III (b) 533 Precooling, III (d) 534 Procedure Before Commission, §2 (y) 539 Reasonableness of Rates, §84 637 Procedure Before Commission, §2 (v) 538 Reasonableness of Rates, §12^^ (c) 590 Refrigeration, §3 (i) 708 Refrigeration, §4 (h) 709 Through Routes and Joint Rates, §11 (2) (z) 859 Track Storage, II (e) 885 Track Storage, II (i) 886 Track Storage, II (f ) 886 Transportation, §12 (f) 893 Water Carriers, §2 (k) 898 ; Dried : i Reasonableness of Rates, §78 (a) 634 j Through Routes and Joint Rates, §15 (w) 868 j FRUIT JARS. Reparation, §19 (r) 744 FRUIT TREES. Loss and Damage, §9 (v) 490 FULLER'S EARTH. Tariffs, §3 (1) (aa) 806 | ■a INDEX TO COMMODITIES 995 FUEL. Page Electric Lines, III (a) 281 Evidence, §17 (i) 334 FURNITURE. Absorption of Charges, §1 (b) 1 Classification, §10 (e) 141 Discrimination, §4 (1) 234 Discrimination, §8 (3) (j) 251 Discrimination, §8 (3) (m) 252 Long and Short Hauls, §5 (s) 454 Minimums, §1 (k) 495 Minimums, §5 (c) (d) 500 Minimums, §7 (m) 503 Minimums, §8 (f) 508 Minimums, §8 (h) (j) 509 Minimums, §8 (o) 511 Reasonableness of Rates, §86 (a) 648 Tariffs, §7 (aa) 819 Through Routes and Joint Rates, §13 (e) 860 FURNITURE KNOBS. Classification, §10 (e) 141 Reasonableness of Rates, §110 (a) 673 FURNITURE TRIMMINGS. Classification, §10 (e) 141 FURS. Export Rates and Facilities, III (g) 369 Express Companies, §4 (a) 375 Express Companies, §11 (10) (a) 382 Procedure Before Commission, §2 (u) 538 GABLE ORNAMENTS. Reasonableness of Rates, §105 (gg) 671 GARBANZO. Minimums, §3 (d) 496 GAS GRATES (See Grates). GAS MACHINERY (See Machinery). GASOLINE. Reasonableness of Rates, §117 (e) 678 Through Routes and Joint Rates, §15 (zz) 872 GILSONITE. Narrow Gauge Railroads, I (d) 512 GIRDERS (See Steel). GLASS. Classification, §15 (e) 149 Classification, §15 (i) 150 Classification, §18 (9) (a) 155 Discrimination, §3 (a) 225 Discrimination, §4 (rr) 239 Equalization of Rates, §1 (cc) 288 Minimums, §7 (u) 504 INDEX TO COMMODITIES GLASS— Cont'd Page Reasonableness of Rates, §12^^ (b) 590 Reasonableness of Rates, §38 (o) 610 Reparation, 2 (j) 716 Routing and Misrouting, §4 (rr) 757 Tariffs, §7 (vv) 822 Weights and Weighing, §3 (c) 901 Weight and Weighing, §8 (g) 905 GLASSWARE. Discrimination, §4 (rr) 239 GLUE STOCK. Classification, §11 (c) 142 Procedure Before Commission, §13 (9) 570 Minimums, §7 (zz) 508 GOAT SKINS. Classification, §14 (c) 147 Routing and Misrouting, §10 (a) 770 GO-CARTS. Reasonableness of Rates, §88 (a) 649 Tariffs, §7 (o) 817 GRAIN AND PRODUCTS (See also Flour, Malt, Rice, Seed). Allowances, §16 (c) (d) 69 Advanced Rates, §5 (d) 13 Advanced Rates, §7 (1) (c) 20 Advanced Rates, §13 (m) 35 Advanced Rates, §16 (b) 37 Advanced Rates, §19 (d) 46 Allowances, §2 (c) (d) (g) 53 Allowances, §5 (b) 54 Allowances, §8 (1) (d) 55 Allowances, §8 (2) (a) 56 Allowances, §8 (3) (a) (aa) (b) 56 Allowances, §8 (3) (bb) (c) (d) (e) 57 Allowances, §8 (3) (ee) (f) (g) 58 Allowances, §9 (dd) 61 Allowances, §12 (1) (b) (d) 64 Allowances, §14 (b) 66 Allowances, §14 (d) (e) (f) 67 Allowances, §15 (f), §16 (b) 68 Blanket Rates, §2 (j) 79 Cars and Car Supply, §11 (a) 114 Cars and Car Supply, §14 (b) 117 Cars and Car Supply, §20 (e) 119 Claims, §8 (b) 130 Courts, §11 (n) 177 Courts, §11 (r) 178 Crimes, §5 (e) 184 Demurrage, §13 (a) 203 Differentials, §3 (a) 209 INDEX TO COMMODITIES 997 GRAIN AND PRODUCTS— Cont'd Page Differentials, §6 (e) 215 Differential, §6 (g) 216 Discrimination, §3 (e) 226 Discrimination, §4 (cc) 229 Discrimination, §4 (s) , §5 (d) 240 Discrimination, §7 (b) 243 Discrimination, §8 (3) (d) 249 Discrimination, §8 (3) (h) 251 Discrimination, §8 (3) (k) 252 Discrimination, §10 (d) 265 Discrimination, §13 (c) 270 Discrimination, §14 (a) 271 Electric Lines, II (c) 281 Equalization of Rates, §3 (gg) 295 Equalization of Rates, §3 (11) 296 Equalization of Rates, §4 (2) (d) 299 Equalization of Rates, §6 (u) 309 Equalization of Rates, §6 (cc) 310 Evidence, §12 (11) (a), §12 (12) (a), §12 (13) (a) 321 Evidence, §13 (3) (a) 326 Evidence, §14 (1) (ff)*. 329 Evidence, §14 (2) (d) 330 Evidence, §14 (4) (b) 331 Evidence, §31 (c) 343 Evidence, §52 (a) 350 Evidence, §58 (aa) (d) 352 Evidence, §63 (h) 355 Evidence, §66 (g) 361 Export Rates and Facilities, §i (a) 365 Export Rates and Facilities, III (f) 368 Export Rates and Facilities, III (i) 369 Export Rates and Facilities, III (j) (k) (1) 370 Export Rates and Facilities, V (d) 371 Facilities and Privileges, §1 (p) 388 Facilities and Privileges, §2 (m) 389 Facilities and Privileges, §8 (9) (a) 392 Facilities and Privileges, §10 (w), §12 (a) 395 Facilities and Privileges, §15 (d) 397 Facilities and Privileges, §15 (n) (o) 399 Facilities and Privileges, §15 (p) (s) (t) 400 Facilities and Privileges, §18 (a) (b) 403 Facilities and Privileges, §20 (a) '. 406 Facilities and Privileges, §20 (h) 407 Facilities and Privileges, §20 (j), §21 (a) (b) 408 Facilities and Privileges, §21 (j) 409 Facilities and Privileges, §21 (jj) 410 Facilities and Privileges, §21 (r) (s) 411 Facilities and Privileges, §21 (y) 412 998 INDEX TO COMMODITIES GRAIN AND PRODUCTS— Cont'd Page Long and Short Hauls, §5 (bb) 448 Long and Short Hauls, §12 (2) (a) 475 Loss and Damage, §5 (i) 482 Minimums, §6 (b) 501 Overcharges, §5 (a) 514 Procedure Before Commission, §10 (2) (k) (1) 546 Proportional Rates, I (b) 555 Proportional Rates, II (a) 556 Proportional Rates, II (aa) (g) 557 Reasonableness of Rates, §8 (1) (cc) 578 Reasonableness of Rates, §8 (3) (a) 581 Reasonableness of Rates, §10 (bb) 586 Reasonableness of Rates, §12i^ (c) 590 Reasonableness of Rates, §17 (c) 595 Reasonableness of Rates, §89 (b) 649 Reconsignment, §1 (c) 697 Reparation, §2 (f ) 715 Reparation, §6 (b) '. 723 Reparation, §7 (v) 730 Reparation, §8 (w) : 731 Routing and Misrouting, §4 (eee) 759 Routing and Misrouting, §9 (d) 769 Routing and Misrouting, §10 (n) 771 Special Contracts, §2 (ii) 776 Substitution of Tonnage, §2 (h) 785 Substitution of Tonnage, §2 (q) 786 Switch Tracks and Switching, §7 (n) 795 Tariffs, §11 (c) 830 Through Routes and Joint Rates, §11 (2) (n) (o) 855 Through Routes and Joint Rates, §13 (aa) 860 Through Routes and Joint Rates, §20 (d) 882 Transportation, §11 (c) 892 Weights and Weighing, §1 (b) 900 Barley: Advanced Rates, §17 (c) 38 Evidence, §12 (17) (a) 321 Evidence, §12 (29) (a) 323 Reasonableness of Rates, §106 (a) 672 Reasonableness of Rates, §106 (e) 673 Reparation, §16 (kkkk) 740 Routing and Misrouting, §4 (pp) 766 Buckwheat: Through Routes and Joint Rates, §13 (h) 861 Through Routes and Joint Rates, §15 (xx) 872 Corn: Advanced Rates, §22 (c) 50 Blanket Rates, §3 (a) 81 Branch Lines, §1 (i) 103 INDEX TO COMMODITIES 999 GRAIN AND PRODUCTS— Cont'd Page Cars and Car Supply, §11 (b) 114 Equalization of Rates, §2 (w) 290 Equalization of Rates, §3 (mm) 296 Equalization of Rates, §4 (2) (m) 300 Equalization of Rates, §4 (2) (q) 301 Evidence, §12 (29) (a) 323 Evidence, §30 (f) 343 Facilities and Privileges, §15 (i) 398 Facilities and Privileges, §20 (d) 407 Facilities and Privileges, §20 (j) 408 Facilities and Privileges, §21 (hh) 409 Facilities and Privileges, §21 (kk) 410 Long and Short Hauls, §5 (jj) 456 Procedure Before Commission, §10 (2) (1) 546 Procedure Before Commission, §11 (v) 549 Proportional Rates, II (d) (h) 557 Reasonableness of Rates, §28 (u) 604 Reasonableness of Rates, §89 (c) (d) (e) 650 Reasonableness of Rates, §132 (a) 686 Reasonableness of Rates, §140 (a) 688 Reasonableness of Rates, §140 (c) 689 Reasonableness of Rates, §153 (a) (b) 693 Reasonableness of Rates, §153 (c) (d) 694 Reasonableness of Rates, §153 (g) 695 Reparation, §1 (q) 714 Reparation, §9 (a) 732 Routing and Misrouting, §4 (vv) 758 Routing and Misrouting, §7 (x) 763 Routing and Misrouting, §9 (h) 770 Tariffs, §6 (f ) (h) 813 Through Routes and Joint Rates, §15 (oo) 870 Transportation, §2 (g) 888 Weights and Weighing, §3 (b) 901 Oats: Evidence, §12 (29) (a) 323 Overcharges, §9 (j) 516 Proportional Rates, II (h) 557 Reasonableness of Rates, §82 (a) 636 Through Routes and Joint Rates, §13 (1) 861 Through Routes and Joint Rates, §15 (b) 866 Track Storage, II (d) 88f Weight and Weighing, §10 (d) 906 Rye: Evidence, §12 (29) (a) 323 Reasonableness of Rates, §153 (f) 695 Tariffs, §7 (bbbbb) 826 1000 INDEX TO COMMODITIES GRAIN AND PRODUCTS— Cont'd Wheat: Page Advanced Rates, §5 (1) (a) 14 Advanced Rates, §7 (1) (c) 20 Advanced Rates, §16 (b) 37 Advanced Rates, §17 (c) 38 Branch Lines, §1 (i) 103 Demurrage, §6 (a) 198 Differential, §6 (d) 215 Discrimination, §9 (n) 262 Discrimination, §9 (t) 265 Discrimination, §14 (a) 271 Equalization of Rates, §3 (ee) 295 Equalization of Rates, §4 (1) (e) 298 Equalization of Rates, §6 (n) 308 Equalization of Rates, §6 (x) (bb) 309 Evidence, §12 (29) (a) 323 Evidence, §45 (g) 347 Evidence, §65 (h) 361 Export Rates and Facilities, V (d) 371 Facilities and Privileges, §7 (b) 391 Facilities and Privileges, §20 (d) 407 Facilities and Privileges, §21 (hh) 409 Interstate Commerce Commission, §1 (s) 428 Interstate Commerce Commission, §14 (c) 437 Minimums, §7 (v) 505 Procedure Before Commission, §2 (v) 538 Procedure Before Commission, §10 (2) (j) (1) 546 Reasonableness of Rates, §27 (h) 601 Reasonableness of Rates, §28 (u) 604 Reasonableness of Rates, §89 (a) 649 Reasonableness of Rates, §153 (b) 693 Reasonableness of Rates, §153 (e) 694 Reasonableness of Rates, §153 (f ) 695 Reparation, §6 (d) 723 Routing and Misrouting, §4 (ddd) 759 Substitution of Tonnage, §2 (e) 785 Substitution of Tonnage, §3 (a) 786 Through Routes and Joint Rates, §21 (a) 882 Through Routes and Joint Rates, §22 (s) 884 GRANITE. Classification, §10 (b) 140 Minimums, §7 (aa) (bb) (ff) (z) (x) (y) 505 Minimums, §7 (cc) (dd) (ee) 506 GRANITE IRON WARE, Tariffs, §7 (v) 818 GRAPE FRUIT. Reasonableness of Rates, §84 (x) 646 INDEX TO COMMODITIES 1001 GRAPES. Page Evidence, §64 (r) 358 Minimums, §7 (b) 501 Overcharges, §9 (p) 517 Procedure Before Commission, §2 (pp) 541 Proportional Rates, IV (j) 560 Reasonableness of Rates, §84 (n) 641 Reparation, §2 (g) 715 Routing and Misrouting, §2 (j) (k) 750 Routing and Misrouting, §2 (1) 751 Routing and Misrouting, §4 (o) 754 Routing and Misrouting, §4 (ff ) 765 GRAPE BASKETS (See Baskets). GRATES. Reasonable Rates, §90 (a) 650 Tariffs, §7 (11) (mm) 821 GRATE BARS. Tariffs, §7 (d) 815 GRAVEL. Interstate Commerce, §4 (j) 423 Reparation, §16 (1) 736 GREASE. Tariffs, §8 (1) 828 Through Routes and Joint Rates, §15 (rr) 871 GROCERIES. Branch Lines, §1 (k) 103 Reparation, §2 (oo) 717 Through Routes and Joint Rates, §13 (j) 861 GROUND IRON ORE (See Ore). GROUND LIMESTONE (See Limestone). GUINEA PIGS. Express Companies, §11 (7) (a) 380 GUM OLIBANUM. Classification, §17 (i) 153 GUMS. Reasonable Rates, §44 (a) 613 GUNPOWDER. Classification, §15 (h) , 150 Reasonable Rates, §91 (a) (b) 651 GYPSUM ROCK. Equalization of Rates, §8 (h) 311 Evidence, §61 (n) 355 Reparation, §16 (u) 736 HAY. Advanced Rates, §5 (d) 13 Allowances, §8 (3) (c) 57 Allowances, §14 (h) , 67 Cars and Car Supply, §13 (h) 116 Cars and Car Supply, §20 (c) 119 1002 INDEX TO COMMODITIES HAY— Cont'd Page Commodity Rates, §4 (b) 161 Differentials, §3 (a) 209 Discrimination, §8 (3) (d) 249 Discrimination, §10 (d) 265 Equalization of Rates, §6 (u) 309 Facilities and Privileges, §10 (r) 394 Facilities and Privileges, §15 (k) 398 Facilities and Privileges, §15 (o) 399 Facilities and Privileges, §18 (b) 403 Facilities and Privileges, §20 (h) 407 Minimums, §5 (a) 500 Minimums, §7 (gg) 506 Overcharges, §2 (a) 513 Proportional Rates, IV (m) (o) 561 Reasonableness of Rates, §89 (b) 649 Reasonableness of Rates, §92 (a) (b) (c) 651 Reasonableness of Rates, §92 (e) (f) (g) (h) 652 Reconsignment, §3 (g) 700 Reconsignment, §4 (e) 702 Reconsignment, §5 (d) 703 Reparation, §2 (v) 718 Reparation, §7 (v) 730 Through Routes and Joint Rates, §15 (mmmm) 876 Track Storage, II (a) (k) (1) 886 HEMATITE IRON ORE (See Ore). HEMLOCK (See Lumber and Forest Products). HEMP. Discrimination, §8 (5) (e) 256 HICKORY (See Lumber and Forest Products). HIDES (See also Goat Skins, Sheep Skins). Blanket Rates, §11 (cc) 95 HOGS (See also Livestock). Discrimination, §9 (d) 260 Equalization of Rates, §3 (1) 293 Evidence, §13 (2) (c) 325 Evidence, §13 (5) (b) 327 Loss and Damage, §3 (f) 480 Loss and Damage, §10 (d) 490 Reasonableness of Rates, §103 (q) (r) (s) 664 Reconsignment, §2 (c) 698 HOISTING. Tariffs, §7 (eee) 823 HOOPS. Advanced Rates, §6 (6) (b) 19 Advanced Rates, §18 (4) (a) 43 Cars and Car Supply, §8 (c) 112 Classification, §41/^ (f) 136 Evidence, §65 (c) 360 INDEX TO COMMODITIES 1003 HOOPS— Cont'd Page Minimums, §4 (a) 497 Minimums, §4 (d) 498 Minimums, §7 (t) 504 Proportional Rates, II (j) 558 Reparation, §2 (n) 717 Through Routes and Joint Rates, §15 (v) 868 Weights and Weighing, §5 (e) 902 HOOP STEEL (See Steel). HOPS. Evidence, §12 (27) (a) 322 Evidence, §14 (1) (e) 329 HORSES (See also Livestock). Loss and Damage, §6 (n) 483 Loss and Damage, §6 (mm) 486 Loss and Damage, §11 (e) 491 Reasonableness of Rates, §103 (g) (h) 661 Special Contracts, §5 (a) 781 Tariffs, §4 (a) 811 Tariffs, §7 (hhhh) 827 HORSE BLANKETS (See Blankets). HOUSES. Overcharges, §5 (e) 515 HOUSE BLOCKING. Evidence, §38 (a) 345 HOUSEHOLD GOODS (See also Furniture). Long and Short Hauls, §10 (o) 470 HUMUS. Facilities and Privileges, §20 (g) 407 ICE. Car and Car Supply, §20 (d) 119 Discrimination, §10 (1) 267 Evidence, §12 (14) (a) 321 Evidence, §61 (k) (1) 355 Evidence, §64 (dd) 357 Long and Short Hauls, §12 (2) (f) 476 Procedure Before Commission, §2 (g) 536 Reasonableness of Rates, §9 (i) 585 Reasonableness of Rates, §28 (e) 602 Reasonableness of Rates, §94 (a) (b) (c) 653 Reparation, §6 (k) 724 Special Contracts, §5 (f ) 781 Transportation, §8 (b) 891 INCINERATOR PARTS. Tariffs, §7 (t) 818 INCUBATORS. Classification, §4^^ (a) 135 INSULATOR PINS. Equalization of Rates, §5 (b) 305 1004 INDEX TO COMMODITIES INTOXICATING LIQUORS (See Liquors). Page IRON. Classification, §18 (1) (a) 153 Classification, §18 (5) (a) 154 Discrimination, §8 (3) (j) 251 Discrimination, §9 (a) 259 Discrimination, §9 (o) 263 Equalization of Rates, §4 (2) (a) 298 Evidence, §12 (15) (a) 321 Facilities and Privileges, §15 (r) 400 Long and Short Hauls, §5 (kk) 456 Long and Short Hauls, §9 (a) 460 Minimums, §7 (hh) 506 Reasonableness of Rates, §28 (ba) 602 Reasonableness of Rates, §95 (a) 655 Reasonableness of Rates, §96 (c) (d) (e) (f ) 656 Reasonableness of Rates, §96 (h) (i) (j) 97 (a) 657 Reparation, §6 (q) 724 Reparation, §18 (e) 742 Routing and Misrouting, §7 (xxx) 767 Special Contracts, §2 (k) 773 Through Routes and Joint Rates, §15 (nnnn) 877 IRON ARTICLES. Discrimination, §4 (1) 234 Reasonableness of Rates, §9 (1) (cc) 578 IRON AXLES (See Axles). IRON BARS (See Iron). IRON ORE (See Ore). IRON PYRITES. Advanced Rates, §8 (1) (m) 29 Reasonableness of Rates, §96 (g) 656 Reasonableness of Rates, §96 (k) 657 IRON RODS (See Iron). IRON-WORKING MACHINE AND PARTS. Reasonableness of Rates, §95 (c) 65 Classification, §18 (5) (b) 154 IRON ROLLS. Commodity Rates, §4 (a) 161 JACKS. Classification, §11 (s) 144 Reparation, §16 (iiii) 740 JAPANNED CASTINGS (See Castings). JEWELERS' SWEEPINGS. Procedure Before Commission, §10 (2) (g) 546 JXJNK. Crimes, §5 (b) 184 Evidence, §12 (15) (a) 321 Reasonableness of Rates, §98 (a) 658 INDEX TO COMMODITIES 1005 KANITE. Page Reasonableness of Rates, §99 (a) 658 Reasonableness of Rates, §108 (a) 673 KAINIT. Import Traffic, II (a) 416 KITCHEN SAFES. Discrimination, §4 (1) 234 KNIT GOODS. Long and Short Hauls, §9 (s) 464 KRAUT. Classification, §17 (k) 153 KRAUT BRINE. Classification, §17 (k) 153 LABORATORY SUPPLIES. Classification, §17 (r) 153 LADDERS. Classification, §13 (h) 146 Discrimination, §8 (3) (j) 251 Long and Short Hauls, §5 (s) 454 Minimums, §8 (j) 509 Minimums, §8 (o) 511 LAMPBLACK. Classification, §7 (bb) 138 LAMPS. Autocycle: Classification, §17 (s) 153 LARCH (See Lumber and Forest Products). LATH (See Lumber and Forest Products). LAUNDRY MACHINERY (See Machinery). LEAD ORE AND CONCENTRATES (See Ore). LEATHER. Advanced Rates, §5 (2) (c) 14 Advanced Rates, §8 (1) (cc) 26 Classification, §11 (a) 141 Reasonableness of Rates, §8 (2) (d) 581 Reasonableness of Rates, §101 (a) 659 LEMONS. Advanced Rates, §18 (6) (a) 44 Advanced Rates, §20 (e) 49 Advanced Rates, §22 (d) 50 Blanket Rates, §4 (bb) 81 Equalization of Rates, §1 (a) 285 Evidence, §20 (ff) 337 Precooling, II (f) ; 533 Reasonableness of Rates, §84 (c) 638 Reasonableness of Rates, §84 (x) 645 Refrigeration, §3- (d) 707 Refrigeration, §4 (a) (e) 708 Refrigeration, §4 (f ) 709 1006 INDEX TO COMMODITIES LETTER COPIERS. Page Evidence, §12 (21) (a) 322 LETTUCE (See Vegetables). LIMA BEANS (See Beans). LIME. Cars and Car Supply, §29 (b) 123 Crimes, §8 (e) 187 Minimums, §7 (k) 503 Reasonableness of Rates, §102 (a) 659 Through Routes and Joint Rates, §15 (dddd) 876 LIMESTONE. Cars and Car Supply, §29 (b) 123 Differential, §17 (g) 221 Evidence, §64 (a) 356 Reparation, §2 (h) 716 Reparation, §16 (yy) 738 LINK BELTING. Tariffs, §7 (ccc) 823 LIQUORS (See also Beer, Near Beer, Wine). Classification, §16 (b) 150 Express Companies, §3 (a) (b) 374 Express Companies, §3 (d) (e) 375 Interstate Commerce Commission, §2 (a) 429 Narrow Gauge Railroads, I (c) 512 Reasonableness of Rates, §28 (bb) .602 Weight and Weighing, §8 (b) 904 LIVESTOCK. (See also Cattle, Hogs, Horses, Sheep.) Advanced Rates, §5 (2) (a) 14 Blanket Rates, §9 (c) 92 Common Carrier, §3 (a) (b) 163 Differentials, §5 (b) 210 Discrimination, §10 (bb) 268 Electric Lines, II (c) 281 Equalization of Rates, §3 (ff ) 291 Evidence, §1 (cc) (d) 315 Evidence, §20 (g) 337 Evidence, §59 (b) 353 Exclusive Contracts, (b) 364 Expedited Service, (a) 364 Loss and Damage, §3 (g) 480 Loss and Damage, §6 (m) 483 Loss and Damage, §6 (ff ) 485 Reasonableness of Rates, §3 (a) 572 Reasonableness of Rates, §37 (b) 609 Reasonableness of Rates, §103 (a) (b) 659 Reasonableness of Rates, §103 (c) 660 Reasonableness of Rates, §103 (e) 661 Reasonableness of Rates, §103 (j) 662 Reasonableness of Rates, §103 (p) 663 INDEX TO COMMODITIES 1007 LIVESTOCK— Cont'd Page Reasonableness of Rates, §118 (b) 679 Reconsignment, §3 (a) 699 Special Contracts, §2 (1) (m) 773 Stock Yards Companies, I (b) 783 Terminal Facilities, §3 (h) (i) 836 LOCOMOTIVES. Advanced Rates, §16 (c) 37 Classification, §6 (a) 137 Evidence, §65 (b) 360 Reasonableness of Rates, §104 (a) 664 Through Routes and Joint Rates, §8 (a) 846 LOCOMOTIVE TIRES. Reasonableness of Rates, §28 (jj) 605 LOGS (See Lumber and Forest Products). LOGGING EQUIPMENT. Reasonableness of Rates, §137 (a) 688 LOOKING-GLASSES. Tariffs, §7 (aa) 819 LUMBER AND FOREST PRODUCTS. Absorption of Charges, §2 (b) 1 Advanced Rates, §5 (1) (b) 14 Advanced Rates, §5 (2) (e) 15 Advanced Rates, §5 (3) (b) 16 Advanced Rates, §7 (2) (b) 23 Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (f) (k) 33 Advanced Rates, §19 (e) 47 Advanced Rates, §22 (d) 50 Advanced Rates, §22 (g) (h) 51 Allowances, §10 (c) 61 Allowances, §11 (a) (b) (c) 62 Allowances, §11 (d) 63 Allowances, §12 (2) (a) (b) (c) (cc) 64 Allowances, §12 (2) (d) 65 Allowances, §13 (c) 66 Allowances, §15 (b) 68 Blanket Rates, §8 (e) 89 Blanket Rates, §8 (h) (gg) 90 Blanket Rates, §9 (b) 91 Blanket Rates, §10 (a) 92 Cars and Car Supply, §8 (f ) 113 Classification, §11 (b) 141 Classification, §11 (o) 144 Commodities Clause, §1 (a) (f) 161 Commodities Clause II (e) 162 Courts, §9 (b) 174 Demurrage, §8 (h) 199 Demurrage, §14 (b) 203 1008 INDEX TO COMMODITIES LUMBER AND FOREST PRODUCTS— Cont'd Page Demurrage, §15 (k) 206 Demurrage, §16 (f) 207 Demurrage, §17 (e) 208 Differential, §7 (b) 217 Differential, §5 (h) 213 Differential, §5 (e) 212 Differential, §17 (f) 219 Differential, §17, (h) 221 Discrimination, §4 (rr) 239 Discrimination, §8 (3) (d) 249 Discrimination, §8 (3) (1) 252 Discrimination, §8 (4) (c) 254 Discrimination, §10 (h) 266 Divisions, V (b) 278 Electric Lines, II (c) 281 Equalization of Rates, §3 (i) 292 Equalization of Rates, §3 (oo) 297 Equalization of Rates, §6 (b) 306 Evidence, §2 (c) 317 Evidence, §12 (7) (a) 320 Evidence, §12 (9) (a) (b), §12 (16) (a) (b) 321 Evidence, §12 (20) (a), §12 (23) (a), §12 (24) (a), §12 (25) (a) 322 Evidence, §13 (4) (aa) 327 Evidence, §58 (d) 352 Facilities and Privileges, §8 (9) (a) 392 Facilities and Privileges, §10 (a) 393 Facilities and Privileges, §13 (a) 396 Facilities and Privileges, §15 (m) 399 Facilities and Privileges, §18 (d) (g) 404 Facilities and Privileges, §19 (f ) (h) 406 Facilities and Privileges, §20 (d) 407 Facilities and Privileges, §21 (11) (p) 410 Import Traffic II (c) 417 Interstate Commerce, §1 (d) 418 Interstate Commerce Commission, §9 (k) 433 Lighterage, §3 (e) 440 Long and Short Hauls, §5 (n) 452 Long and Short Hauls, §5 (11) (pp) 456 Minimums, §4 (m) 499 Minimums, §5 (d) 502 Minimums, §8 (kl) 510 Overcharges, §5 (e) 515 Overcharges, §9 (1) 516 Procedure Before Commission, §2 (q) 537 Procedure Before Commission, §2 (oo) 540 Procedure Before Commission, §3 (c) 541 Procedure Before Commission, §10 (2) (p) 546 Reasonableness of Rates, §28 (x) 604 I i I: INDEX TO COMMODITIES 1009 LUMBER AND FOREST PRODUCTS— Cont'd Page Reasonableness of Rates, §36 (c) 608 Reasonableness of Rates, §105 (c) 665 Reasonableness of Rates, §105 (f) (g) (k) 666 Reasonableness of Rates, §105 (1) (m) 667 Reasonableness of Rates, §105 (p) (q) 668 Reasonableness of Rates, §105 (v) (w) (x) 669 Reasonableness of Rates, §105 (aa) (bb) (cc) (ee) 670 Reasonablenesss of Rates, §105 (ff) (hh) (jj) 671 Reasonableness of Rates, §105 (mm) 672 Reasonableness of Rates, §125 (a) 684 Reconsignment, §1 (c) 697 Reconsignment, §3 (o) 701 Reconsignment, §4 (c) 702 Reparation, §2 (e) • 715 Reparation, §2 (q) 718 Reparation, §4 (g) 722 Reparation, §6 (mm) (nn) (eepp) 726 Reparation, §6 (ss) 727 Reparation, §7 (r) 729 Reparation, §10 (b) (c), §12 (a) (b) 733 Reparation, §16 (xxx) 739 Routing and Misrouting, §2 (f ) 750 Routing and Misrouting, §4 (f) (k) 753 Routing and Misrouting, §4 (w) (x) (y) 755 Routing and Misrouting, §4 (ee) (ii) (jj) (kk) 756 Routing and Misrouting, §6 (dd) 760 Routing and Misrouting, §7 (j) 76^ Routing and Misrouting, §4 (ii) 765 Routing and Misrouting, §9 (e) (f) (g) 769 Routing and Misrouting, §10 (p) 771 Special Contracts, §2 (e) (g) 772 Substitution of Tonnage, §2 (aa) 784 Tap Lines, §2 (c) 796 Tap Lines, §4 (a) 797 Tap Lines, §4 (e) (f) (g) 798 Tap Lines, §6 (c), §7 (a) 799 Tap Lines, §8 (a) §9 (b) 800 Tap Lines, §9 (c) (e) 801 Tariffs, §3 (e) 803 Tariffs, §3 (3) (c) 810 Tariffs, §7 (z) 819 Terminal Facilities, §3 (k) 837 Through Routes and Joint Rates, §5 (e) §7 (a) 846 Through Routes and Joint Rates, §11 (2) (c) (d) 851 Through Routes and Joint Rates, §11 (k) 854 Through Routes and Joint Rates, §11 (2) (p) (q) ; 856 Through Routes and Joint Rates, §11 (2) (r) (s) 857 Through Routes and Joint Rates, §13 (c) 860 1010 INDEX TO COMMODITIES LUMBER AND FOREST PRODUCTS— Cont'd Page Through Routes and Joint Rates, §13 (g) 861 Through Routes and Joint Rates, §14 (i) 863 Through Routes and Joint Rates, §15 (e) 866 Through Routes and Joint Rates, §15 (u) 868 Through Routes and Joint Rates, §15 (11) .870 Through Routes and Joint Rates, §15 (HI) 874 Through Routes and Joint Rates, §19 (d) 881 Transportation, §11 (d) 892 Weights and Weighing, §6 (b) 903 Blinds: Absorption of Charges, §3 (a) 2 Classification, §11 (b) 141 Evidence, 12 (24) (a) 322 Box Shooks : Reasonable Rates, §50 (a) 616 Reasonableness of Rates, §105 (11) 672 Through Routes and Joint Rates, §15 (sss) 874 Cedar: Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (k) 33 Crossties: Blanket Rates, §13 (bb) 97 Cars and Car Supply, §33 (b), §34 (a) 125 Courts, §9 (m) 175 Discrimination, §4 (f) (ff ) 232 Evidence, §12 (9) (a) (b) 321 Evidence, §13 (6) (c) " 327 Evidence, §17 (i) .334 Interstate Commerce Commission, §9 (ee) 434 Long and Short Hauls, §5 (ee) 450 Long and Short Hauls, §9 (g) 461 Long and Short Hauls, §10 (r) 470 Mlnimums, §5 (d) 502 Overcharges, §8 (e) 515 Reasonableness of Rates, §3 (e) 572 Reasonableness of Rates, §105 (d) 665 Reasonableness of Rates, §105 (h) 666 Reasonableness of Rates, §105 (o) 668 Reasonableness of Rates, §105 (dd) (y) 670 Reasonableness of Rates, §148 (a) (b) (c) 691 Reasonableness of Rates, §148 (d) (f) (g) 692 Routing and Misrouting, §4 (yy) 758 Tariffs, §7 (m) 816 Tariffs, §7 (oo) 821 Weights and Weighing, §8 (f ) 905 Weights and Weighing, §10 (a) 906 INDEX TO COMMODITIES 1011 LUMBER AND FOREST PRODUCTS— Cont'd Page Cypress: Advanced Rates, §5 (3) (b) 16 Blanket Rates, §7 (e) 85 Blanket Rates, §8 (bb) 88 Blanket Rates, §12 (d) 97 Interstate Commerce Commission, §14 (d) 437 Long and Short Hauls, §5 (q) 453 Reasonableness of Rates, §105 (a) 665 Reparation, §3 (d) 720 Doors: Absorption of Charges, §3 (a) 2 Classification, §11 (b) 141 Evidence, 12 (24) (a) 322 Procedure Before Commission, §2 (ss) 541 Reasonableness of Rates, §77 (a) 634 Fir: Advanced Rates, §5 (2) (f ) 15 Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (c) 32 Advaned Rates, §13 (k) 33 Advanced Rates, §13 (1) 34 Equalization of Rates, §3 (aa) 290 Interstate Commerce Commission, §9 (a) 431 Reasonableness of Rates, §105 (e) 666 Routing and Misrouting, §7 (q) 763 Gum: Classification, §11 (k) 143 Interstate Commerce Commission, §14 (d) 437 Proportional Rates, I (e) 556 Reasonableness of Rates, §105 (i) 666 Reparation, §3 (d) 720 Heading: Advanced Rates, §6 (6) (b) 19 Advanced Rates, §18 (4) (a) 43 Advanced Rates, §18 (8) (a) 44 Classification, §4% (f ) 136 Evidence, §12 (25) (a) 322 Hemlock: Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (k) 33 Hickory : Routing and Misrouting, §4 (q) 754 Weights and Weighing, §5 (j) 903 Larch: Advanced Rates, §8 (1) (i) : 28 Lath: Advanced Rates, §13 (c) 32 Advanced Rates, §13 (1) 34 1012 INDEX TO COMMODITIES LUMBER AND FOREST PRODUCTS— Cont'd Page Equalization of Rates, §3 (aa) 290 Evidence, §13 (4) (aa) 327 Import Traffic, II (c) 417 Interstate Commerce Commission, §9 (a) 431 Long and Short Hauls, §5 (o) 453 Reasonableness of Rates, §105 (e) 666 Through Routes and Joint Rates, §5 (e) 846 Logs: Blanket Rates, §11 (ee) 95 Demurrage, §5 (a) 197 Equalization of Rates, §4 (2) (v) 302 Evidence, §13 (4) (aa) 327 Evidence, §22 (a) 338 Facilities and Privileges, §19 (a) (b) 405 Interstate Commerce, §4 (f) 422 Minimums, §1 (ee) 494 Procedure Before Commission, §11 (2) (u) 548 Reasonableness of Rates, §40 (a) 611 Reasonableness of Rates, §105 (r) 668 Reasonableness of Rates, §105 (oo) 672 Reasonableness of Rates, §112 (a) 676 Reparation, §9 (b) 732 Tap Lines, §6 (d) 799 Maple: Facilities and Privileges, §20 (d) 407 Oak: Interstate Commerce Commission, §14 (d) 437 Reasonableness of Rates, §105 (b) 665 Reparation, §3 (d) 720 Routing and Misrouting, §4 (ss) 757 Pine: =«■ Reasonableness of Rates, §105 (n) 67 Advanced Rates, §8 (1) (i) 28 Blanket Rates, §12 (d) 97 Divisions, V (b) 278 Equalization of Rates, §3 (jj) 296 Facilities and Privileges, §19 (e) 405 Reasonableness of Rates, §105 (g) 666 Reasonableness of Rates, §105 (t) 668 Reasonableness of Rates, §105 (u) 669 Reasonableness of Rates, §105 (z) 670 Reparation, §20 (a) 745 Routing and Misrouting, §4 (1) 753 Routing and Misrouting, §7 (aa) 761 Routing and Misrouting, §7 (m) 762 Pine Cones: Classification, §16 (m) 151 Classification, §17 (t) 153 INDEX TO COMMODITIES 1013 LUMBER AND FOREST PRODUCTS— Cont'd Page Poles : Allowances, §8 (6) (a) 60 Allowances, §13 (b) 66 Cars and Car Supply, §32 (c) ; 124 Classification, §10 (c) 141 Evidence, §12 (23) (a) 322 Facilities and Privileges, §10 (a) 393 Facilities and Privileges, §18 (g) ■. 404 Long and Short Hauls, §5 (bb) 455 Reasonableness of Rates, §105 (kk) 672 Reasonableness of Rates, §125 (a) (b) 684 Reasonableness of Rates, §125 (c) (d) 685 Routing and Misrouting, §7 (aaa) 767 Routing and Misrouting, §10 (j) 770 Weights and Weighing, §6 (c) 903 Posts (Cedar Fence): Cars and Car Supply, §8 (o) 114 tariffs, §7 (wv) 285 Evidence, §12 (23) (a) 322 Facilities and Privileges, §18 (g) 404 Minimums, §4 (f) 498 Reasonableness of Rates, §105 (j) 666 Reasonableness of Rates, §105 (s) 668 Reasonableness of Rates, §125 (b) 684 Routing and Misrouting, §2 (m) 751 Routing and Misrouting, §9 (i) 770 Through Routes and Joint Rates, §15 (eee) 872 Sash: Absorption of Charges, §3 (a) 2 Classification, §11 (b) 141 Evidence, §12 (24) (a) 322 Procedure Before Commission, §2 (ss) 541 Reasonableness of Rates, §105 (gg) 671 Shingles : Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (k) 33 Facilities and Privileges, §17 (f) 402 Facilities and Privileges, §18 (g) 404 Loss and Damage, §6 (uu) 487 Reasonableness of Rates, §139 (a) 688 Routing and Misrouting, §7 (tt) 766 Tariffs, §3 (3) (d) 810 Through Routes and Joint Rates, §5 (e) 846 Through Routes and Joint Rates, §11 (2) (c) 851 Through Routes and Joint Rates, §11 (2) (p) 856 Spruce: Advanced Rates, §8 (1) (i) 28 Advanced Rates, §13 (k) 33 1014 INDEX TO COMMODITIES LUMBER AND FOREST PRODUCTS— Cont'd Page Evidence, §13 (4) (aa) 327 Import Traffic, II (c) 417 Staves: Advanced Rates, §6 (6) (b) 19 Advanced Rates, §18 (4) (a) 43 Advanced Rates, §18 (8) (a) 44 Classification, §4^^ (f) 136 Evidence, §12 (25) (a) 322 Interstate Commerce, §4 (f ) 422 Reasonableness of Rates, §142 (a) 689 Routing and Misrouting, §1 (a) 749 Through Routes and Joint Rates, §15 (p) 867 Veneer: Reasonableness of Rates, §151 (a) 693 Wood: Absorption of Charges, §2 (d) 1 Reasonableness of Rates, §105 (ii) 671 Reparation, §8, (1) 731 Reparation, §16 (bbb) 738 Tariffs, §7 (vvv) 825 MACHINERY. Alternative Rates, I (b) 69 Bills of Lading, §5 (c) 76 Cars and Supply, §8 (b) 112 Discrimination, §4 (1) 234 Minimums, §8 (d) 508 Reasonableness of Rates, §87 (a) 649 Reparation, §7 (s) 729 Reparation, §16 (aaa) 736 Reparation, §16 (ee) 737 Tariffs, §7 (xxx) 825 Through Routes and Joint Rates, §13 (n) 862 Through Routes and Joint Rates, §13 (w) 863 Through Routes and Joint Rates, §15 (fff) 873 Through Routes and Joint Rates, §15 (jjjj) 876 MALT, Evidence, §12 (17) (a) 321 Reasonableness of Rates, §106 (a) (b) (c) (d) 672 Reasonableness of Rates, §106 (e) 673 Reparation, §16 (w) 736 Reparation, §16 (kkkk) 740 MALT LIQUORS (See Liquors). MANHEADS. Classification, §17 (u) 153 MANTELS. Minimums, §3 (f ) 496 Minimums, §5 (d) 500 INDEX TO COMMODITIES 1015 MANTEL MATERIAL. Page Tariffs, §7 (hh) 820 MANURE. Reasonableness of Rates, §81 (e) 635 Reasonableness of Rates, §81 (f ) 636 MANURE SPREADERS. Through Routes and Joint Rates, §15 (ddd) 872 MAPLE (See Lumber and Forest Products). MARBLE. Procedure Before Commission, §2 (eee) 539 Reasonableness of Rates, §8 (4) (d) 582 Released Rates, §5 (a) 713 MASURITE. Procedure Before Commission, §10 (2) (f) 545 Reasonableness of Rates, §108 (a) (b) 673 MATTRESSES. Alternative Rates, I (a) 69 Classification, §7 (aa) 138 Express Companies, §8 (f ) 377 Minimums, §5 (d) 500 Tariffs, §7 (i) 816 MEATS (See also Packinghouse Products). Advanced Rates, §1 (5) (a) 10 Advanced Rates, §5 (d) 13 Advanced Rates, §5 (2) (b) 14 Advanced Rates, §19 (c) 46 Discrimination, §8 (3) (a) 248 Discrimination, §9 (d) 260 Peddler Car Service, (a) (b) 532 Reasonableness of Rates, §118 (a) 678 Reasonableness of Rates, §119 (b) 679 Reasonableness of Rates, §118 (c) (d) (e) (f) 681 Reasonableness of Rates, §118 (f ) (g) 682 Reduced Rates, §2 (a) 704 Through Routes and Joint Rates, §13 (a) 860 MEDICAL PACKAGES. Express Companies, §13 (a) 383 MEDICINE. Express Companies, §11 (4) (a) 379 MERCHANDISE. Discrimination, §9 (c) 259 Equalization of Rates, §6 (1) 306 Express Companies, §11 (4) (a) 379 Express Companies, §11 (8) (a) 380 Express Companies, §15 (b) 384 Facilities and Privileges, §8 (c) 392 Reasonableness of Rates, §109 (a) 673 MILEAGE BOOK. Tariffs, §7 (ss) 821 1016 INDEX TO COMMODITIES MILK. Page Advanced Rates, §3 (aa) 11 Advanced Rates, §7 (2) (a) 23 Advanced Rates, §13 (b) 31 Advanced Rates, §13 (e) 32 Advanced Rates, §18 (7) (a) 44 Advanced Rates, §19 (dd) 47 Business Secrets, I (b) (bb) 108 Cars and Car Supply, §7 (b) 110 Classification, §5 (c) 136 Classification, §13 (f) 146 Evidence, §9 (a) 319 Express Companies, §11 (9) (a) 380 Express Companies, §11 (9) (b) 381 Interstate Commerce, §1 (g) 418 Reasonableness of Rates, §40 (1) 612 Reasonableness of Rates, §71 (a) 630 Reasonableness of Rates, §111 (a) 673 Reasonableness of Rates, §111 (c) 675 Tariffs, §7 (ggg) 823 Tariffs, §14 (b) 831 MILLET SEED (See Seed). MILLINERY. Classification, §16 (h) 151 MINE-PROP LOGS (See Lumber and Forest Products). MINERAL WATER. Classification, §7 (f) 140 MOHAIR. Reasonableness of Rates, §113 (a) 677 MOLASSES. Routing and Misrouting, §2 (c) 749 MONEY. Express Companies, §6 (a) 375 Express Companies, §6 (c) 376 MOTORCYCLES. Classification, §18 (6) (a) 154 Evidence, §12 (18) (a) 321 Reasonableness of Rates, §32^^ (d) 607 Reasonableness of Rates, §114 (a) (b) 677 MULTIGRAPHS. Classification, §18 (7) (a) 155 MUSSEL SHELLS. Reasonableness of Rates, §115 (a) 677 MUSTARD SEED. Classification, §17 (e) 153 NAILS. Discrimination, §4 (gg) (hh) 233 Discrimination, §9 (q) 264 Proportional Rates, III (d) 559 INDEX TO COMMODITIES 1017 NAILS— Cont'd Page Reasonableness of Rates, §97 (a) 657 Routing and Misrouting, §3 (d) 751 Tariffs, §7 (bbb) 823 NEAR BEER. Classification, §17 (v) 153 Reasonableness of Rates, §47 (g) 615 NEWSPAPER. Reasonableness of Rates, §116 (a) 677 NEWS PRINTING PAPER (See Paper). NITRATE OF SODA. Classification, §10 (f ) 141 Tariffs, §7 (cccc) 826 NUCOA BUTTER. Classification, §18 (2) (a) 153 NUCOLINE. Classification, §18 (2) (a) 153 OAK (See Lumber and Forest Products). OATS (See Grain and Products). OILS (See also Cottonseed Oil, Grease, Petroleum and Products). Cars and Car Supply, §17 (a) (b) 118 Crimes, §7 (e) 185 Crimes, §14 (a) 190 Discrimination, §4 (qq) 238 Equalization of Rates, §2 (s) 290 Evidence, §12 (19) (a) 322 Evidence, §14 (5) (r) 332 Evidence, §29 (n) 342 Long and Short Hauls, §5 (uu) 456 Procedure Before Commission, §2 (11) (mm) 540 Reasonableness of Rates, §8 (4) (r) 583 Reasonableness of Rates, §117 (a) (d) (e) 678 Reasonableness of Rates, §122 (f ) 683 Reparation, §16 (t) 736 Switch Tracks and Switching, §4 (c) 789 Tariffs, §7 (e) 815 Tariffs, §17 (c) 832 Through Routes and Joint Rates, §16 (a) 878 Through Routes and Joint Rates, §20 (a) 882 Transportation, §2 (1) 889 Weights and Weighing, §5 (a) 902 Weights and Weighing, §8 (a) 904 OIL MEAL. Through Routes and Joint Rates, §15 (vv) (ww) 872 Through Routes and Joint Rates, §19 (c) 881 OIL WELL SUPPLIES. Through Routes and Joint Rates, §15 (ss) 871 OLD SHIPMENT, Reduced Rates, §5 (f ) 706 1018 INDEX TO COMMODITIES ONIONS (See Vegetables). Page ORANGES (See also Fruit). Blanket Rates, §11 (i) 96 Evidence, §12 (27) (b) 322 Evidence, §20 (ff) 337 Precooling, II (a) 532 Precooling, II (f), III (b) 533 Reasonableness of Rates, §84 (j) 640 Reasonableness of Rates, §84 (x) 645 Refrigeration, §3 (d) 707 Refrigeration, §4 (e) 708 Refrigeration, §4 (f) 709 Refrigeration, §4 (1) 710 Reparation, §2 (g) 715 Through Routes and Joint Rates, §15 (kkkk) 876 ORE. Advanced Rates, §7 (2) (d) 24 Blanket Rates, §13 (a) 97 Classification, §11 (1) 143 Equalization of Rates, §4 (2) (1) 300 Interstate Commerce Commission, §1 (g) 427 Procedure Before Commission, §13 (f) 549 Reasonableness of Rates, §24 (b) 598 Reasonableness of Rates, §32^^ (aa) 607 Reasonableness of Rates, §96 (b) 656 Reasonableness of Rates, §96 (1) 657 Reasonableness of Rates, §100 (a) .7. 658 Routing and Misrouting, §4 (xx) 758 Switch Tracks and Switching, §7 (i) 794 Through Routes and Joint Rates, §15 (hhh) 873 PACKAGE FREIGHT— Facilities and Privileges, §10 (j) 393 PACKING HOUSE PRODUCTS (See also Meats). Absorption of Charges, §2 (a) 1 Advanced Rates, §1 (5) (a) 10 Advanced Rates, §5 (d) 13 Advanced Rates, §5 (2) (b) 14 Advanced Rates, §19 (c) 46 Blanket Rates, §2 (j) 79 Crimes, §5 (e) 184 Differentials, §5 (b) 210 Discrimination, §8 (3) (a) 248 Discrimination, §8 (3) (d) 249 Discrimination, §9 (cc) 260 Evidence, §20 (g) 337 Peddler Car Service, (a) (b) 532 Reasonableness of Rates, §118 (a) 678 Reasonableness of Rates, §118 (b) 679 Reasonableness of Rates, §118 (c) (d) 681 J INDEX TO COMMODITIES 1019 PACKING HOUSE PRODUCTS— Cont'd Page Reasonableness of Rates, §118 (g) 682 Reduced Rates, §2 (a) 704 Tariffs, §8 (1) 828 Through Routes and Joint Rates, §13 (a) 860 PAINT. Classification, §7 (bb) 138 PAPER. Bills of Lading: Basing Points and Lines, §5 (d) 76 Classification, §7 (c) 138 .Classification, §16 (c) 150 / Classification, §17 (o) 153 ^ Commodity Rates, §3 (f ) 160 Divisions, §4 (b) 277 Minimums, §8 (e) '. 508 Procedure Before Commission, §10 (2) (c) 545 Proportional Rates, IV (r) 561 Reasonable Rates, §42 (a) 613 Reasonableness of Rates, §107 (b) 673 Reasonableness of Rates, §119 (b) 682 Reparation, §16 (1) 736 \ Reparation, §16 (pp) 737 ^ Tariffs, §7 (ee)., 819 Tariffs, §7 (ff) (gg) 820 Through Routes and Joint Rates, §15 (yy) 872 PAPER MILL ROLLS. Commodity Rates, §4 (a) 161 PAPER PAILS. Procedure Before Commission, §10 (2) (d) 545 PAPER STOCK. Equalization of Rates, §4 (2) (g) 299 Reasonableness of Rates, §119 (a) 682 PARTITIONS. Classification, §15 (e) 149 PASSENGER CAR. Reasonableness of Rates, §120 (a) 682 PAVING BLOCKS. Overcharges, §9 (f ) 516 Weights and Weighing, §4 (d) 902 PEACHES (See also Fruit). Loss and Damage, §5 (c) 481 Loss and Damage, §11 (c) 491 Minimums, §7 (f) 502 Minimums, §7 (q) (r) (s) 504 Precooling, III (c) 534 Reasonableness of Rates, §84 (m) 641 Reasonableness of Rates, §84 (t) 644 Refrigeration, §4 (k) 710 1020 INDEX TO COMMODITIES PEACHES— Cont'd - Page Refrigeration, §7 (a) 710 Tariffs, §7 (gggg) 827 PEANUT ROASTERS. Classification, §4^^ (e) 136 PEAS (See Vegetables). PERCOLATORS. Classification, §18 (3) (a) 154 PERISHABLE PRODUCE (See Produce). PERSULPHATE OP IRON. Minimums, §8 (g) 509 PETROLEUM AND PRODUCTS. Claims, §3 (c) 128 Crimes, §11 (a) (b) 188 Crimes, §27 (a) 193 Discrimination, §7 (rs) 246 Discrimination, §9 (b) 261 Equalization of Rates, §5 (c) 305 Equalization of Rates, §6 (r) 308 Evidence, §56 (a) 351 Facilities and Privileges, §21 (u) 411 Long and Short Hauls, §6 (a) 457 Long and Short Hauls, §9 (m) 462 Procedure Before Commission, §2 (kk) (11) (mm) 540 Reasonableness of Rates, §28 (gg) 605 Reasonableness of Rates, §38 (f ) 610 Reasonableness of Rates, §117 (b) (c) 678 Reasonableness of Rates, §122 (a) (b) (c) (d) (e) 683 Reasonableness of Rates, §122 (g), §123 (a) 684 Routing and Misrouting, §7 (c) 761 Transportation, §12 (c) (e) 893 PHOSPHATE ROCK. Discrimination, §4 (oo) 235 Facill ties and Privileges, §20 (g) 407 Reas(vnableness of Rates, §28 (cc) 604 Reasonableness of Rates, §126 (a) 685 Repa? ation, §16 (bb) 737 Repaj ation, §16 (zz) 738 Repanvtion, §19 (m) (n) 744 PICKLES. Equalisation of Rates, §4 (2) (i) 300 PIG IRON (See Iron). PINE (See Lumber and Forest Products). PINBAPPL1^ Omaha, Neb., to various points. Cream cans. Express Companies, §11 (3) (a). 379 Omaha, Neb., to Wisconsin points. Grain and grain products. Advanced Rates, §19 (d) 46 Omaha, Neb. Transit. Facilities and Privileges, §21 (bb) 408 Onalaska, Ark., to Batchelor, La. Second-hand logging equipment. Reason- ableness of Rates, §137 (a) 688 Orange, Tex., to Eunice, La. Groceries. Reparation, §2 (oo) 717 Orange, Tex., to the North Atlantic Seaboard. Rice. Differentials, §5 (d) . . . 211 Oregon City, Ore., to Cripple Creek, Colo. Fir lumber. Advanced Rates, §5 (2) (f ) 15 Oregon. Cooperage. Allowances, §8 (2) (a) 56 Oregon points to Astoria, Ore. Wheat. Differentials, §6 (d) 215 Oregon points to Calif ore ia points. Poles and piling. Reasonableness of Rates, §125 (a) 684 Oregon points to the East. Lumber and forest products. Differentials, §7 (h) 221 Oregon to other states. Common lumber, cedar, fir, etc. Advanced Rates, §8 (1) (i) 28 Oregon to St. Paul, Minn., Chicago, 111., Mississippi River, Missouri River, Southeastern Kansas, Denver and similar points. Shingles and forest products. Advanced Rates, §13 (k) 33 Ottumwa, la., from the East. Class rates. Proportional Rates, IV (k) . . . 561 Ottumwa, la., to Kansas City, Mo. Pickles. Equalization of Rates, §4 (2) (i) 300 Ottumwa, la., to Kansas City, Mo. Structural iron. Reparation, §18 (e) . . 742 Ottumwa, la., to the Southeast. Fertilizer material. Reasonableness of Rates, §81 (b) 635 INDEX OF LOCALITIES 1073 Page Owensboro, Ky., to and from New York and other points. Class rates. Long and Short Hauls, §9 (r) 463 Ozark district. Ark., to Eastern points. Strawberries and peaches. Refriger- ation, §4 (k) 710 Ozark district, Mo., to various points east and west. Strawberries. Mini- mums, §7 (s) 504 Ozark district, Mo., and Ark., to Memphis, Tenn., Missouri, Louisiana, Mississippi, Alabama, Georgia, South Carolina, Florida, Oklahoma and Texas points. Apples. Reasonableness of Rates, §84 (u) 546 Pacific Coast terminals from the East. Furniture. Minimums, §5 (d), §7 (m) 500, 503 Pacific Coast points from Chicago, 111. points and Mississippi River points. Lumber. Reasonableness of Rates, §105 (ff ) 671 Pacific Coast ports to Salt Lake City, Utah. Import rates. Branch Lines, §4 (b) 105 Pacific Coast terminals from Chicago territory. Iron ore. Reasonableness of Rates, §96 (1) 657 Pacific Coast terminals to intermediate Colorado points. Sugar. Tariffs, §6 (k) 814 Paducah, Ky., from Tennessee points. Stave and heading bolts. Facilities and Privileges, §15 (h) 3&8 Page, W. Va., to Carondelet, Mo. Coke. Discrimination, §7 (n) 245 Painesdale, Mich., from Wisconsin i>oints. Potatoes. Reasonableness of Rates, §127 (a) 685 Panama, 111., to Hannibal, Mo. Coal. Advanced Rates, §3 (a) 11 Paola, Kan., to Boonville and Holden, Mo. Petroleum oil. Long and Short Hauls, §9 (m) 462 Paola, Kan., to Kansas City, Kan. Petroleum. Reasonableness of Rates, §122 (e) tJ83 Paper Mills, Ore., to Queen Junction, Pa. Minimums, §4 (m) 499 Paraffin, Cal., to Alturas, Cal. Roofing and roofing coating. Discrimina- tion, §4 (gg) 233 Park Manor, Chicago, 111. Station. Passenger Fares and Facilities, §13 (a) 527 Pawnee Junction, 111., from Tennessee points. Cross ties. Reasonableness of Rates, §105 (dd) 670 Paw Paw, Mich., to Green Bay, Wis. Grapes. Routing and Misrouting, §2 (j) 750 Paxton, 111., from Tennessee points. Cross ties. Reasonableness of Rates, §105 (dd) 670 Paynesville, Minn. Concentration. Facilities and Privileges, §4 (c) 390 Pecos, Tex., from Denver, Colo., Chicago, 111., St. Louis, Mo., Omaha, Neb. Class rates. Long and Short Hauls, §9 (q) 463 Pennsylvania to various states. Sample brick. Express Companies, §11 (11) (a) 381 Pensacola, Fla., to Alabama points. Fish. Express Companies, §9 (a) 377 Peoria, 111., to Missouri River points. Discrimination, §9 (r) 264 Peoria, 111., to Portland, Ore., and Seattle, Wash. Peanut roasters. Classi- fication, §41^ (e) 136 1074 INDEX OF LOCALITIES Page Perla, Ark., to Louisiana points. Brick. Reasonableness of Rates, §52 (a) . . 616 Peru, III. Switching. Switch tracks and Switching, §7 (n) 795 Perth Amboy, N. J., from Wyoming field. Pa. Coal. Reasonableness of Rates, §67 (c) 625 Pewee Valley, Ky., to Pittsburgh, Pa. Grapes. Procedure Before Com- mission, §2 (pp). Proportional Rates, IV (j) 541,560 Philadelphia, Pa. Free Storage. Facilities and Privileges, §8 (b) 392 Philadelphia, Pa., from Pennsylvania points. Ice. Transportation, §8 (b) . . 891 Philadelphia, Pa. Storage, (a) 783 Philadelphia, Pa., to Buffalo, N. Y. Molasses. Routing and Misrouting, §2 (c) 749 Philadelphia, Pa., to Chicago, 111. Cotton shoddy lining. Reasonableness of Rates, §74 (a) 632 Philadelphia, Pa., to European points. Water Carriers, §2 (i) 897 Philadelphia, Pa., to Gowanda, N. Y. Glue stock. Procedure Before Com- mission, §13 (i) 550 Philadelphia, Pa., to Utica, N. Y. Reparation, §7 (c) 761 Phoenxi, Ariz. Commodity rates. Equalization of Rates, §3 (q) 294 Phoenix, Ariz., from the East. Class rates. Reasonableness of Rates, §66 (g) 624 Phoenix, Ariz., from the East. Commodity rates. Procedure Before Com- mission, §19 (d) 555 Phoenix, Ariz., from Kansas points. Wheat and flour. Reasonableness of Rates, §153 (e) 694 Phoenix, Ariz., to Arizona, Colorado, New Mexico, Kansas and California points. Base rates. Express Companies, §24 (c) 385 Phoenix, Ariz., to El Paso, Tex., and Los Angeles, Cal. Horses. Rea- sonableness of Rates, §103 (g) 661 Phoenix, Ariz., to Los Angeles, Cal. Live stock. Reasonableness of Rates, §103 (d) 660 Phoenix, Ariz., to other Arizona points. Barley, bran and wheat. Advanced Rates, §17 (c) 38 Pine Bluff, Ark., to Ft. Worth, Tex. Box shooks. Reasonableness of Rates, §50 (a) 616 Pine Bluff, Ark., to Memphis, Tenn. Cottonseed meal and hulls. Claims, §6 (c) 129 Pine Bluff, Ark., to Memphis, Tenn. Lumber and products. Reasonableness of Rates, §105 (g) 666 Pittsburg, Kan., to Oklahoma points. Coal. Reasonableness of Rates, §67 (X) 629 Pittsburg, Kan., to Portales, N. Mex. Coal. Reasonableness of Rates, §67 (0) 62V Pittsburgh, Pa., district to Ashtabula Harbor, O. Bituminous coal. Differ- entials, §7 (aa) 216 Pittsburgh, Pa., from eastern points. Grapes. Reasonableness of Rates, §84 (n) 641 Pittsburgh, Pa. Switching. Interstate Commerce Commission, §14 (i) 437 Pittsburgh, Pa., to Ashtabula Harbor, O. Coal. Reasonableness of Rates, §12% (a) 590 Pittsburgh, Pa., to Cleveland, O. Hoop steel. Reparation, §7 (dd) 764 I INDEX OF LOCALITIES 1075 Page Pittsburgh, Pa., to Denver, Colo. Iron and steel bars, plates, etc. Rea- sonableness of Rates, §95 (a) 655 Pittsburgh, Pa., to Southeastern and Mississippi Valley Freight Associa- tion territory. Window glass. Discrimination, §3 (a) 225 Pittsburgh, Pa. Track Storage, II (b) (e) (h) (i) 885, 886 Pittsfield, Mass., to Millinocket, Me. Machinery. Through Routes and Joint Rates, §13 (m) 862 Piano, Tex. Transit. Facilities and Privileges, §21 (hh) 409 Pocahontas district, W. Va., to Chicago rate points. Coke. Discrimination, §3 (i) 226 Pocahontas Flat Top district, W. Va. Mine rating. Cars and Car Supply, §22 (a) 120 Pocahontas, Va,, to Carolina cities. Coal. Reasonableness of Rates, §67 (r) 627 Pocono Mountains, Pa., to New Jersey. Ice. Long and Short Hauls, §12 (2) (f) 476 Pocono Mountains, Pa., to New Jersey points.' Ice. Evidence, §64 (dd). Reasonableness of Rates, §94 (c) 357,653 Pocono Mountains, Pa., to New York, New Jersey and various points. Ice. Reasonableness of Rates, §94 (a) 653 Point Pleasant, N. J.„ from Pennsylvania points. Coal. Discrimination, §8 (4) (a) 253 Pomona, Tenn., to St. Louis, Mo. Strawberries Facilities and Privileges, §20 (e) 407 Ponchatoula, La., to Chicago, 111. Fruits and vegetables^ Reasonableness of Rates, §84 (k) 640 Port Arthur, Can., to Buffalo, N, Y., and eastern points. Flaxseed. Ad- vanced Rates, §5 (3) (a) 16 Port Chalmette, La., to Gramercy, La. Interstate Commerce, §3 (g) 420 Port Costa, Cal., to Sacramento, Cal. Barley. Reparation, §7 (pp) 766 Portland, Colo., to Denver, Colo. Cement. Advanced Rates, §18 (7) (b) 44 Portland, Colo., to La Grande, Ore. Cement. Tariffs, §7 (iiii) 827 Portland, Ore., from Chicopee Falls and Springfield, Mass. Gas mantle material. Tariffs, §7 (hh) 820 Portland, Ore., to Auburn Wash. Hay, Through Routes and Joint Rates, §15 (mmmm) 876 Portland, Ore., to Chester, Mont. Emigrants' movables. Tariffs, §7 (x) . . . 818 Portland, Ore., to the East. Rates. Class Rates (b) 132 Portland, Ore., to the East. Class rates. Reasonableness of Rates, §66 (ee) 623 Portland, Ore., to the East. Distributing rates. Commodity Rates, §1 (d). 159 Portland, Ore., to Tacoma and Seattle, Wash. Live stock and packing- house products. Differentials, §5 (b) 210 Portland, Ore., to Washington, Idaho, Montana and Oregon. Class rates. Procedure Before Commission, §19 (e) 555 Portsmouth-Oak Hill district, O., to Birmingham and Southern points. Fire brick. Discrimination, §7 (j) 244 Potomac Yard, Va. Reconsignment, §5 (c) 703 Poultney, Vt., to Eagle Bridge, N. Y. Fluid milk. Advanced Rates, §3 (aa), §18 (7) (a) 11, 44 1076 INDEX OF LOCALITIES Page Powersville, Mo. Relatice Rate. Equalization of Rates, §2 (o) 289 Prague, Okla., to Warwick, Okla. Cottonseed. Interstate Commerce Com- mission, §9 (gg) 435 Prairie Grove, Ark., to Nashville, 111. Elm hoops. Proportional Rates, II (j) 558 Prairie Switch, Ind., from Maryland, New York, Tennessee and Ohio points. Phosphate rock and acid phosphate. Reasonableness of Rates, §126 (a) 685 Prairie Switch, Ind. Transit. Facilities and Privileges, §20 (g) 407 Provencal, La., to Santa Rita, N. Mex. Lumber. Reparation, §4 (ee) 756 Pueblo, Colo., from Big Four Mine, Colo. Coal. Reparation, §7 (11) 765 Pulaski, Tenn., to Birmingham, Ala. Eggs . Express Companies, §11 (5) (a) 380 Pullman, Wash., to Valley City, N. D. Apples. Discrimination, §9 (m) 262 Quapaw, Okla., to Kansas City, Mo. Hay. Overcharges, §2 (a) 513 Quincy, 111., to San Francisco, Cal. Show cases. Tariffs, §7 (ooo) 824 Racine, Wis., to Abilene, Tex. Wagon. Minimums, §8 (m) 510 Raynesford, Mont., to Spokane, Wash. Hay. Reasonableness of Rates, §92 (g) 652 Red Wing, Minn., from Trunk Line territory. Class rates. Blanket Rates, §8 (c) 88 Red Wing, Minn., to La Crosse, Wis. Oil. Reparation, §16 (t) 736 Reno, Nev., from the East. Class rates. Reasonableness of Rates, §66 (f) 623 Reno, Nev., from various points. Rates. Long and Short Hauls, §4 (k), §10 (d) 446, 467 Reno, Nev., to Alturas, Cal. Apples. Narrow Gauge Railroads, I (b) 512 Reno, Nev., to Alturas, Cal, Potatoes and onions. Narrow Gauge Rail- roads, I (aa). Reasonableness of Rates, §84 (o) 512,641 Reno, Nev., to Denver, Colo. Rates. Blanket Rates, §1 (d) 79 Reno, Pa., to Milton Junction, Wis. Gasoline. Through Routes and Joint Rates, §15 (zz) 872 Reno, Nev., to various points. Rates. Through Routes and Joint Rates, §13 (b) 860 Reno, Nev., to western points. Rates. Branch Lines, §1 (a) 102 Retsof, N. Y., to Central Freight Association territory. Salt. Discrimina- tion, §8 (5) (b) 254 Retsof, N, Y., to Detroit, Mich. Salt. Discrimination, §15 (d) 274 Rhinelander, Wis., to points east of the Mississippi River. Paper. Blanket Rates, §13 (h) 99 Richland Center, Wis., to Dodgeville, Wis. Cheese boxes. Reasonableness of Rates, §63 (a) 621 Richmond, Ind., to Wichita, Kan. Wire fence. Through Routes and Joint Rates, §19 (b) 881 Richmond, Va., to Knoxville, Tenn. Boat spikes. Classification, §7 (b) 138 Ridge, Mich., to South Chicago, 111. Lumber. Overcharges, §8 (e) 515 Ridgley, Md., to Duluth, Minn. Reparation, §7 (z) 764 River Falls, Ala., to Waynetown, Ind. Lumber. Reasonableness of Rates, §105 (hh) 671 INDEX OF LOCALITIES 1077 Page Roanoke, W. V., from Hartford and Mason City, W. Va. Salt. Proportional Rates, IV (g) 560 Roanoke, W. Va., to Virginia and Carolina cities. Class rates. Reasonable- ness of Rates, §66 (ff) 624 Rochester, N. Y., to Western. Classification territory. Letter copiers. Evi- dence, §12 (21) (a) 322 Rockford, 111., to San Francisco, Cal. Furniture. Tariffs, §7 (aa) 819 Rockhouse, Ky., to Brockwayville, Pa. Cross ties. Long and Short Hauls, §9 (g). Tariffs, §7 (oo) 461, 821 Rock Island, 111., to Hartford, Mich. Relative Rate. Equalization of Rates, §2 (r) 290 Rock Springs, Wyo., to Nebraska and Wyoming points. Coal. Blanket Rates, §13 (g) 98 Rockyford, Colo., to Pittsburgh, Pa. Perishable produce. Interstate Com- merce Commission, §14 (o) 438 Rocky Mountain territory. Car door board. Allowances, §6 (a) 54 Roman Nose, Okla., to Ft. Worth and Dallas, Tex. Cement Plaster. Ad- vanced Rates, §5 (2) (d). Blanket Rates, §7 (bb) 15, 84 Rome, Miss., to Davenport, la. Lumber. Advanced Rates, §19 (e). Blanket Rates, §8 (bb) 47, 88 Rome, N. Y., to San Francisco, CaL Brass and iron tubing. Reasonable- ness of Rates, §51 (a) 616 Romona, Ind., to various points. Stone. Weights and Weighing, §4 (b) (c) 901 Rotterdam Junction, N. Y., to Holyoke, Mass. Coal. Reasonableness of Rates, §67 (f) 625 Roycefield, N. J. Station. Passenger Fares and Facilities, §13 (b) 527 Rugby, Colo., to luka, Kan. Reconsignment, §3 (1) 700 Rupert, Vt., to Eagle Bridge, N. Y, Fluid milk. Advanced Rates, §18 (7) (a) 44 Ruston, La., to Eldorado, Ark. Fertilizer. Reasonableness of Rates, §81 (a) . . 635 Sacramento, Cal., to Nevada and Utah points. Class rates. Reasonable- ness of Rates, §66 (dd) 622 Saginaw Bay, Mich. Hay cars. Cars and Car Supply, §13 (h) 116 Sagle, Ida., to Garland, Wyo. Cedar posts. Through Routes and Joint Rates, §15 (eee) 872 Salem, N. Y., to Eagle Bridge, N. Y, Fluid milk. Advanced Rates, §3 (aa). §18 (7) (a) 11, 44 Salem, S. C, to Washington, D. C. Lumber. Demurrage, §16 (f) 207 Salina, Kan., to Hugo, Okla. Bran. Discrimination, §4 (jj) 233 Salt Lake City, Utah, from the Missouri River. Relative rates. Long and Short Hauls, §4 (aa) 443 Salt Lake City, Utah, from Pacific Coast ports. Import rates. Long and Short Hauls, §5 (k) , 451 Salt Lake City, Utah, to the East. Catsup. Reasonableness of Rates, §59 (a) 620 Salt Lake City, Utah., to San Francisco, Cal. Passenger fares. Passenger Fares and Facilities, § (d) 524 1078 INDEX OF LOCALITIES Page Sandusky, O,, to Detroit, Mich. Cement. Advanced Rates, §18 (1) (b) . . 41 San Francisco, Cal., and Pacific Terminals from the East. Lumber. Long and Short Hauls, §5 (n) 452 San Francisco, Cal., from and to Ogden, Salt Lake City and Provo, Utah. Passenger Fares and Facilities, §2 (e) 519 San Francisco, Cal., from the East. Lumber. Through Routes and Joint Rates, §15 (11) 870 San Francisco, Cal., from the East. Beer. Reasonableness of Rates, §16 (k) 594 San Francisco, Cal., from Grand Haven, Mich., Rome, N. Y., and Water- bury, Conn. Metal furniture knobs. Reasonableness of Rates, §110 (a) 673 San Francisco, Cal., from Grand Mere, Quebec. Newspaper, Reasonable- ness of Rates, §16 (a) 677 San Francisco, Cal., from New York, N. Y. Reasonableness of Rates, §8 (4) (d) 582 San Francisco, Cal., to Alturas, Cal. Nails, barbed wire, staples, wire, syrup and sugar. Discrimination, §4 (gg) 233 San Francisco, Cal., to Chinook, Mont. Dried fruit. Through Routes and Joint Rates, §15 (w) 868 San Francisco, Cal., to East St. Louis, 111. Walnut logs. Blanket Rates, §11 (ee) 95 San Francisco, Cal., to Independence, Mo. Rope. Equalization of Rates, §3 (nn) 297 San Francisco, Cal,, to Manistique and Sault Ste. Marie, Mich. Hides. Blanket Rates, §11 (cc) 95 San Francisco, Cal., to various points. Rates. Long and Short Hauls, §5 (cc) 449 San Francisco, Cal. Unloading. Facilities and Privileges, §10 (j) 393 San Jose, Cal., to Roundup, Mont. Canned Goods. Reasonableness of Rates, §57 (a) 619 San Pedro, Cal., from the East. Discrimination, §9 (i) 261 San Pedro, Cal., from various points. Long and Short Hauls, §10 (i) 469 San Pedro, Cal. Rates. Equalization of Rates, §3 (s) 294 San Pedro, Cal. Rates. Evidence, §33 (a) 343 Santa Rosa, N. Mex., from Chicago, 111., and similar points. Rates. Long and Short Hauls, §5 (aa) 455 Santa Rosa, N. Mex., from eastern points. Rates. Long and Short Hauls, §9 (1) 462 Sapulpa, Okla., to Acme, Tex. Oil. Reasonableness of Rates, §117 (a) 678 Sapulpa, Okla., to Humboldt, Kan. Petroleum oil. Reasonableness of Rates, §117 (b) 678 Saron, Tex., to Altus, Okla. Lumber. Reparation, §4 (x) 755 Sartells, Minn., to Los Angeles, Oakland and San Francisco, Cal. Print paper. Divisions, §4 (b) 277 Sault Ste. Marie, Mich., to Thiensville, Wis. Cross ties. Long and Short Hauls, §10 (r) 470 Savannah, Ga. Rebilling. Facilities and Privileges, §18 (c) 403 Savannah, Ga. Reshipping. Through Routes and Joint Rates, §20 (f) 882 Schenectady, N. Y. Spotting. Allowances, §12 (2) (e) 65 Seattle, Wash., from California points. Sheep and cattle. Minimums, §7 (c) . . . 501 INDEX OP LOCALITIES 1079 Page Seattle, Wash., from Stavanger, Norway. Rate. Special Contracts, §2 (ccc), Through Routes and Joint Rates, §18 (c) 779, 880 Seattle, Wash., from St. Paul and Missouri River points. Hogs. Reasonable- ness of Rates, §103 (q) (r) 664 Seattle, Wash. Relative Rate. Reasonableness of Rates, §8 (4) (j) 582* Seattle, Wash. Rates. Equalization of Rates, §3 (ff ) 295 Seattle, Wash., to the East. Distributing rates. Commodity Rates, §1 (d) . . ; 159 Seattle, Wash., to the East. Lumber. Blanket Rates, §8 (h) 90 Seattle, Wash., to the East. Rates. Class Rates, (b) 132 Seattle, Wash., to Oregon, Idaho and Montana points. Class rates. Reason- ableness of Rates, §66 (ee) 623 Seattle, Wash., to the Northwest and East. Passenger fares. Passenger Fares and Facilities, §14 (g) 529 Seattle, Wash., to Nevada, California and Arizona points. Refrigeration, §3 (h) 708 Seattle, Wash., to Washington, Idaho, Montana and Oregon. Class rates. Pro- cedure before Commission, §19 (e) 555 Seymour, la., to Kansas City, Mo. Millet seed. Reparation, §16 (p) 736 Seymour, Mo., to Minneapolis and St. Paul, Minn. Apples. Evidence, §29 (h) . 341 Sharon, Pa., to Wilcoe, W. Va. Masurite. Procedure before Commission, §10 (2) (f) 545 Sheffield, Ala., to Hutchinson, Kans. Pig iron. Reasonableness of Rates, §96 (f ) 656 Shreveport, La. Concentration. Facilities and Privileges, §4 (a) 390 Shreveport, La. Storage charge. Compress Companies and Charges, II (a) . . 167 Shreveport, La., to Arkansas points. Equalization of Rates, §1 (v) 287 Shreveport, La., to Hamburg and Crossett, Ark. Fertilizer. Reasonableness of Rates, §81 (c) 635 Shreveport, La., to Kansas City, Mo. Cottonseed cake. Through Routes and Joint Rates, §13 (r) 862 Shreveport, La., to Marshall, Tex. Sash weights. Reasonableness of Rates, §135 (a) 687 Shreveport, La., to Texas points. Equalization of Rates, §3 (bb) 290 Shushan, N. Y., to Eagle Bridge, N. Y. Fluid milk. Advanced Rates, §3 (aa), §18 (7) (a) 11,44 Sioux City, la. Back haul privilege. Discrimination, §3 (b), Evidence, §66 (a) 225, 361 Sioux City, la., from South Dakota, Nebraska, Minnesota and Iowa, and to various points. Grain. Discrimination, §14 (a) 271 Sioux City, la., from various points. Cream. Reasonableness of Rates, §111 (d) 675 Sioux City, la., to Gary, Ind. Rate. Reparation, §16 (j) 736 Sioux City, la., to Hinsdale, Mont. Corn. Reasonableness of Rates, §153 (a) . . 693 Sioux City, la., to Lemmon, S. D. Sash door, window frames, etc. Reasonable- ness of Rates, §105 (gg) 671 Sioux City, la., to Lismore, Minn. Corn. Reasonableness of Rates, §89 (d) ... 650 Sioux City, la., to Minnesota points. Merchandise. Discrimination, §9 (c) ... 259 Sioux City, la., to New Orleans, La. Apples. Bills of Lading, §9 (1) (a) Routing and Misrouting, §3 (f) 77, 752 1080 INDEX OF LOCALITIES Page Sisson, Cal. Switching charge. Absorption of Charges, §3 (a) 2 Sisson, Cal. Switching. Switch Tracks and Switching, §4 (d) 789 Soldani, Okla., from Dryden and Sanderson, Tex. Sheep. Transportation, §11 (a) 891 Somerset, Md., to District of Columbia. Carfare. Electric Lines, I (aa) 280 South Amboy, N. J., from Clearfield district. Pa. Coal. Discrimination, §14 (b) 272 South Canon, Colo., to Utah, Nevada, California, Oregon, Washington, Idaho and Montana. Coal. Branch Lines, §1 (h) 103 South Canon, Colo., to western points. Coal. Reasonableness of Rates, §67 (u) 628 South Chicago, 111., from Wilcox and Ridge, Mich. Cross ties. Reasonable- ness of Rates, §105 (y) 670 South Dakota points to Omaha, Neb. Corn, grain and wheat. Advanced Rates, §16 (b) 37 South Dakota to Minneapolis, Minn., Chicago, 111., and primary grain markets. Advanced Rates, §7 (1) (c) 20 South Hammond, Ind. Relative Rate. Equalization of Rates, §2 (v) 290 South Haven, Mich., to La Crosse, Wis. Grapes. Evidence, §64 (r) 358 South Omaha, Neb., from Arkansas, Louisiana, Mississippi and Texas points. Lumber and forest products. Differentials, §7 (b) 217 South Omaha, Neb., to Cushman, Mont. Cattle. Reasonableness of Rates, §37 (g) 609 South Omaha, Neb., to Kings, 111. Cattle. Reparation, §16 (iijj) 737 South Portland, Ore., to Eastern destinations. Lumber. Blanket Rates, §10 (a) 92 South Tacoma, Wash. Joint rates. Through Routes and Joint Rates, §11 (1) (a) 848 South St. Paul to Hammond, Ind. Cattle. Cars and Car Supply, §8 (g), Minimums, §3 (i) 113, 497 South St. Paul, Minn., to various points. Cattle. Reasonableness of Rates, §103 (1) 662 Southard, Okla., to Ft. Worth and Dallas, Tex. Cement plaster. Advanced Rates, §5 (2) (d). Blanket Rates, §7 (bb) 15, 84 Southern Classification territory. Locomotives. Advanced Rates, §16 (c), Classification, §6 (a). Reasonableness of Rates, §104 (a) 37, 137, 664 Southern Missouri to Louisiana points. Staves, hoops and heading. Ad- vanced Rates, §6 (6) (b) 19 Southern territory to New York and Northern territory. Leather. Advanced Rates, §8 (1) (cc) 26 Southern Missouri to various Louisiana points. Staves, hoops and heading. Advanced Rates, §18 (4) (a) 43 Southport, La., from Mississippi and Louisiana points. Ties. Weights and Weighing, §8 (f) 905 Southwestern points to various packing house territories. Live stock. Reason- ableness of Rates, §103 (b) 659 Spokane, Wash., from Chicago, 111., and St. Paul., Minn. Class and commodity rates. Long and Short Hauls, §10 (m) 469 Spokane, Wash., from Chicago, 111., and St. Paul, Minn. Rates. Long and Short Hauls, §10 (s) 470 INDEX OF LOCALITIES 1081 Page Spokane, Wash., from Chicago, 111., and St. Paul, Minn. Commodity rates. Reasonableness of Rates, §8 (4) (k) 583 Spokane, Wash., from Eastern points. Rates. Long and Short Hauls, §10 (u) . 471 Spokane, Wash., from Eastern territory. Long and Short Hauls, §10 (f) 468 Spokane, Wash., from Eastern territory. Commodity rates. Long and Short Hauls, §5 (kk) 452 Spokane, Wash., from the East. Class and commodity rates. Procedure be- fore Commission, §10 (2) (a) 544 Spokane, Wash., from the East. Commodity rates. Procedure before Com- mission, §19 (b) 554 Spokane, Wash., from the East. Rates. Equalization of Rates, §6 (i) 306 Spokane, Wash., from the East. Rates. Procedure before Commission, §16 (g) . . 552 Spokane, Wash., from St. Paul, Minn., and the East. Class and commodity rates. Long and Short Hauls, §10 (v) 471 Spokane, Wash., from Mississippi River points. Class and commodity rates. Reasonableness of Rates, §28 (f) 603 Spokane, Wash., from various points. Long and Short Hauls, §10 (aa) (b) (c) 466, 467 Spokane, Wash. Rates. Equalization of Rates, §3 (ff) 295 Spokane, Wash. Relative rate. Reasonableness of Rates, §8 (4) (j) 582 Spokane, Wash., to Medford, Ore. Household goods. Long and Short Hauls, §10 (o) 470 Springfield, 111., to Kansas City, Mo. Coal. Through Routes and Joint Rates, §22 (q) 884 Springfield, 111., to Leona, Kan. Coal. Tariffs, §7 (zzz) 825 Springfield, 111., to Missouri River. Equalization of Rates, §4(2) (e) 299 Springfield, 111., to Salina and Kipp, Kans. Rates. Through Routes and Joint Rates, §15 (oooo) 877 Springport, Mich., to Anniston, Ala. Dried beans. Routing and Misrouting, §2 (h) 750 St. Andrews, S. C, to New York, N. Y. Lettuce. Reasonableness of Rates, §84 (s) 644 St. Blaise, Tenn., to Riddlesburg, Pa. Phosphate rock. Reparation, §19 (n) ... 744 St. Joseph, Mo., from various points. Cream. Reasonableness of Rates, §111 (d) 675 St. Joseph, Mo., to Pacific Coast points. Glucose syrup. Equalization of Rates, §3 (c) 291 St. Joseph, Mo., to Pullman, Wash. Syrup. Reparation, §19 (i) 743 St. Joseph, Mich., to Wausau, Wis. Paper. Through Routes and Joint Rates, §15 (yy) 872 St. Joseph, Mo. Transit. Facilities and Privileges, §21 (kk) 410 St. Louis, Mo. Auction company. Exclusive Contracts (c) 364 St. Louis, Mo. Estimated weight. Weights and Weighing, §5 (a) 902 St. Louis, Mo., from Arkansas and Louisiana points. Lumber. Reasonableness of Rates, §105 (t) 668 St. Louis, Mo., from the Kansas salt field. Salt. Reasonableness of Rates, §8 (1) (bb) 576 St. Louis, Mo. Fruit auctioneer. Terminal Facilities, §3 (j) 837 St. Louis, Mo., to Arkansas points. Grain. Discrimination, §8 (3) (k) 252 1082 INDEX OF LOCALITIES Page St. Louis, Mo., to Cullman, Ala. Beer. Reasonableness of Rates, §47 (a) ... 614 St. Louis, Mo„ to Denver, Colo. Cameras and stands. Classification, §4 (f) ... 135 St. Louis, Mo., to Denver, Colo. Iron hoops, staves, heading. Classification, §4^ (f) 136 St. Louis, Mo., to Denver, Colo. Motorcycles. Classification, §18 (6) (a) 154 St. Louis, Mo., to Denver, Colo. Wooden bungs. Classification, §11 (g) 142 St. Louis, Mo., to Eastern points. Potatoes. Minimums, §7 (a) 501 St. Louis, Mo., to Ft. Smith, Ark. Brick. Reasonableness of Rates, §52 (d) . . 617 St. Louis, Mo., to Leadville, Colo. Beer. Interstate Commerce, §3 (k), Long and Short Hauls, §6 (h). Reasonableness of Rates, §47 (b), (d), (s), Through Routes and Joint Rates, §2 (1), §11 (i) (j) . . 420, 458, 614, 615, 843, 849 St. Louis, Mo., to Leadville, Colo. Through shipment. Interstate Commerce, §3 (i) 420 St. Louis, Mo., to Little Rock, Ark. Grain and products. Differentials, §6 (g) . 216 St. Louis, Mo., to Memphis, Tenn. Plate glass. Classification, §18 (9) (a) ... 155 St. Louis, Mo., to Monroe, La. Apples. Through Routes and Joint Rates, §22 (g) 883 St. Louis, Mo., to Monroe, La. Rates. Long and Short Hauls, §10 (bb), (cc) .. 472 St. Louis, Mo., to New Orleans, La., and Mississippi River points. Long and Short Hauls, §10 (bb) 472 St. Louis, Mo., to Nogales, Ariz. Soap. Reasonableness of Rates, §8 (4) (ee) . 582 St. Louis, Mo., to Pueblo, Colo. Cotton. Reasonableness of Rates, §73 (a) ... 631 St. Louis, Mo., to San Antonio, Tex. Beer bottles. Reasonableness of Rates, §48 (a) 615 St. Louis, Mo., to Spokane, Wash. New cars. Special Contracts, §2 (eee). Tariffs, §3 (1) (w) 779, 808 St. Louis, Mo., to Texas common points. Class and commodity rates. Ad- vanced Rates, §15 (e) 36 St. Louis, Mo. Switching charge. Tariffs, §7 (e) 815 St. Louis, Mo. Switching service. Terminal Facilities, §3 (c) 835 St. Louis, Mo. Switching. Switch Tracks and Switching, §4 (c) 789 St. Louis, Mo. Switching. Terminal Facilities, §7 (c) 838 St. Louis, Mo. Through routes. Through Routes and Joint Rates, §11 (2) (b) . 850 St. Paul, Minn. Assorting Packages, § (c) 72 St. Paul, Minn., from Chicago, 111., and Milwaukee, Wis. Petroleum and products. Procedure before Commission, §2 (mm) 540 St. Paul, Minn., from Chicago, 111., and St. Louis, Mo. Rates. Reasonable- ness of Rates, §8 (4) (t) 583 St. Paul, Minn., from Duluth, Minn., and Superior, Wis. Bituminous coal. Evidence, §13 (2) (i) 325 St. Paul, Minn., from Minnesota and other points. Cream. Reasonableness of Rates, §111 (b) 675 St. Paul, Minn., from Seymour and Cedar Gap, Mo. Apples. Reasonable- ness of Rates, §84 (i) 640 St. Paul, Minn., from St. Louis, Mo., and Chicago, 111. Rates. Reasonable- ness of Rates, §8 (4) (u) 583 St. Paul, Minn., to Central Freight Association territory. Class rates. Advanced Rates, §18 (10) (a) 45 St. Paul, Minn., to Douglas, Minn. Plate glass. Minimums, §7 (u) 504 INDEX OF LOCALITIES 1083 Page St. Paul, Minn,, to Lemmon, S. D., and Hettinger, N. D. Groceries. Through Routes and Joint Rates, §13 (j) 861 St. Paul to New York. Furs. Express Companies, §4 (a), §8 (e), §11 (10) (a). Procedure Before Commission, §2 (u) 375, 376, 382, 538 St. Paul, Minn., to Reno, Nev. Syrup. Divisions, §1 (a) 275 St. Paul, Minn., to South Dakota points. Oil and gasoline. Reasonableness of Rates, §117 (e) 678 St. Paul, Minn., to Spokane territory. Rates. Blanket Rates, §5 (a) 82 St. Paul, Minn. Transit. Discrimination, §7 (b), Facilities and Privileges, §21 (ee) 243, 409 St. Paul, Neb., to Denver, Colo. Milk. Express Companies, §11 (9) (b) . . . 381 St. Petersburg, Fla., to Atlanta, Ga. Oranges. Refrigeration, §4 (1) 710 Stanards, N. Y., to Struthers, Pa. Oil. Reasonableness of Rates, §117 (c) . 678 Steubenville, O., to Los Angeles, Cal. Tank blocks. Classification, §17 (j). Reparation, §16 (oo) 153, 737 Steubenville, O., to San Francisco, Cal. Gas grates. Tariffs, §7 (11) 821 Steubenville, O., to San Francisco, Cal. Grapes. Reasonableness of Rates, §90 (a) 650 Stillwater, Minn., from west of the Missouri River. Hay. Proportional Rates, IV (m) 561 Stockton, Cal., to Alturas, Cal. Pipe nails, wire, etc Reasonableness of Rates, §97 (a) 657 Stoughton, Wis., to Passaic, N. J. Tobacco. Through Routes and Joint Rates, §15 (wv) 875 Stoy, 111., to Indiana points. Oil. Long and Short Hauls, §5 (w) 456 Stroh, Ind., to Detroit, Mich. Cement. Advanced Rates, §18 (1) (b) 41 Strong, Colo., to Milford, Neb. Coal. Reconsignment, §6 (b) 703 Strong, Colo., to Quinn and Cottonwood, S. D. Coal. Reparation, §7 (oo) . . . 766 Struthers, O., to Worcester and Palmer, Mass. Iron and steel rods. Long and Short Hauls, §9 (a) 460 Suffolk, Va., to North and South Carolina points. Vehicles. Advanced Rates, §8 (2) (b) 29 Summit, N. J. Switching. Switch Tracks and Switching, §7 (m) 794 Sumrall, Miss., to Dayton, O. Lumber. Reparation, §4 (f ) 753 Sumter, S. C, to Tampa, Fla. Cottonseed meal. Reasonableness of Rates, §32 (c) 607 Superior, Wis. Free storage. Facilities and Privileges, §8 (c) 392 Superior, Wis., from Minnesota points. Pulp wood. Reasonableness of Rates, §128 (a) 685 Superior, Neb., to Lusk, Wyo. Rates. Long and Short Hauls, §5 (y) 455 Superior, Wis., to North and South Dakota. Coal. Minimums, §4 (i) 499 Superior Dock, Wis. Vessel facilities. Tariffs, §3 (3) (d) 810 Syracuse, N. Y., to Boston, Mass., and New York, N. Y. Wall plaster. Discrimination, §8 (3) (e) 249 Tacoma, Wash., from Idaho and Oregon. Live stock. Evidence, §1 (d) 315 Tacoma, Wash., from California. Sheep. Minimum, §7 (1), Tariffs, §15 (b) 503, 832 Tacoma, Wash., from California points. Sheep and cattle. Minimums, §7 (c) gOi 1084 INDEX OF LOCALITIES Page Tacoma, Wash., from Nampa, Ida., and Ontario, Ore. Cattle. Reparation, §7 (vv) 767 Tacoma, Wash., from Ontario, Ore., and Nampa, Ida. Cattle. Reparation, §7 (yy) 767 Tacoma, Wash., to the East. Distributing rates. Commodity Rates, §1 (d) 159 Tacoma, Wash., to the East. Lumber. Blanket Rates, §8 (h) 90 Tacoma, Wash., to the East. Rates. Class Rates, (b) 132 Tacoma, Wash., to Oregon, Idaho, and Montana points. Class Rates. Rea- sonableness of Rates, §66 (ee) 623 Tacoma, Wash., to Washington, Idaho, Montana and Oregon. Class rates. Procedure Before Commission, §19 (e) 555 Tallulah, La., to Lime City, Tex. Elm hoops. Through Routes and Joint Rates, §15 (v) 868 Talmage, Neb., to St. Louis, Mo. Corn and wheat. Branch Lines, §1 (i) . . . 103 Tempe, Ariz., to Arizona, Colorado, New Mexico, Kansas and California points. Base rates. Express Companies, §24 (c) 385 Tennessee Ridge, Tenn., to Louisville, Ky. Ties. Reasonableness of Rates, §148 (c) 691 Terre Haute, Ind., to Cincinnati and Dayton, O. Bar iron and steel, etc. Discrimination, §9 (o) 263 Terre Haute, Ind., to Davenport, la. Mussel shells. Reasonableness of Rates, §115 (a) 677 Terre Haute, Ind., to Louisville, Ky. Bar iron and steel, etc. Discrimina- tion, §9 (o) 263 Texas from and to various points. Live stock, fresh meats and packing- house products. Reasonableness of Rates, §118 (b) 679 Texas to Omaha, Neb., and Council Bluffs, la. Lumber and forest products. Advanced Rates, §5 (1) (b) 14 Texas to Pacific Coast. Rates. Blanket Rates, §2 (b) 79 Texas to points east of the Illinois-Indiana state line. Potatoes. Advanced Rates, §17 (b) 38 Texas to the Southeast, Central Freight Association territory, Illinois terri- tory, Pacific Coast. Rice. Blanket Rates, §7 (a) 83 Texas points to New Orleans, La., and Texas ports. Cotton. Advanced Rates, §19 (a) 45 Texas ports from Texas points. Cotton. Export Rates and Facilities, V (b) 371 Thayer, 111. Switching. Switch Tracks and Switching, §4 (a) 788 Thomas, W. Va., to Tonopah, Nev. Coal. Reasonableness of Rates, §67 (g) ... 625 Tiger, Ga., to Hoboken, N. J. Lumber. Tariffs, §7 (z) 819 Tobico, Mich. Switching. Discrimination, §10 (1) 267 Tobico, Mich., to Sandusky, O. Ice. Cars and Car Supply, §20 (d) 119 Tobico, Mich., to Toledo, O. Ice, Discrimination, §10 (1) 816 Toledo, O. Rates. Equalization of Rates, §3 (y) 295 Toledo, O., to Cedarburg, Wis. Wagons. Through Routes and Joint Rates, §15 (r) 867 Toledo, O., to Detroit, Mich. Cement. Advanced Rates, §18 (1) (b) 41 Toledo, O., to Gordo, Ala. Farm Wagons. Tariffs, §7 (1) 816 Toledo, O., to Ohio River crossings and Virginia cities for beyond. Vehicles. Discrimination, §4 (d) 229 INDEX OF LOCALITIES 1085 Page Toledo, O., to Ohio River crossings and Virginia cities for beyond. Vehicles. wagons and carts. Discrimination, §4 (dd) 229 Toledo, O., to Portland and Eugene, Ore., and Seattle, Wash. Farm wagons. Reasonableness of Rates, §8 (4) (p) 583 Toledo, O., to Smithville, Tex. Wagon. Minimums, §4 (b) 498 Toledo, O., to the South and Southeast. Vehicles. Equalization of Rates, §3 (h) 291 Toledo, O., to Tonopah, Nev. Wagons. Reasonabbleness of Rates, §150 (b) 692 Toledo, O., to Watertown, Wis. Wagon. Through Routes and Joint Rates, §15 (q) 867 Tony, Wis., to Zumbrota, Minn. Lumber. Long and Short Hauls, §5 (pp), Reasonableness of Rates, §28 (x) 456, 604 Townley, N. J. Reconsignment. Facilities and Privileges, §15 (k) 398 Traverse City, Mich., to Balcom, 111. Fruit baskets. Evidence, §28 (g) 340 Traverse City, Mich,, to Horatio, Ark. Baskets. Reasonableness of Rates, §44 (b) 613 Traverse City, Mich., to Horatio, Ark. Rebilling. Interstate Commerce Com- mission, §10 (e) 435 Traverse City, Mich., to Montrose, la. Fruit baskets. Through Routes and Joint Rates, §15 (tt) 871 Trenary, Mich., to Milwaukee, Wis. Tan bark. Reparation, §4 (tt) 758 Trinidad, Colo., to Amarillo, Tex. Coke. Reasonableness of Rates, §70 (a) ... 630 Troutville, Va., to Birmingham, Ala. Tomatoes. Demurrage, §7 (b) 198 Trunk Line territory. Oil. Tariffs, §15 (c) 832 Tupelo, Okla., to Forest City, Ark. Corn. Equalization of Rates, §4 (2) (m) . . 300 Turon, Kan., to Lake Charles, La. Flour. Reasonableness of Rates, §83 (b) 636 Tyro, Kan., to Iowa points. Brick. Reasonableness of Rates, §52 (b) 616 t Upper Clinch Valley to Eastern points. Coal. Differentials, §5 (j) 213 Utah common points from the East. Commodity rates. Reasonableness of Rates, §66 (e) 623 Utah common points from the East. Class and commodity rates. Procedure before Commission, §19 (bb) 554 Utah common points from the Missouri River. Class rates. Evidence, §20 (b) . 336 Utah common points. Import rates. Reasonableness of Rates, §44 (a) 613 Utah common points to Chicago, 111. Class rates. Branch Lines, §4 (b) 105 Utah common points to and from Chicago, 111. Class rates. Reasonableness of Rates, §66 (e) 623 Utah common points to Denver, Colo., Omaha, Neb., Los Angeles, Cal., and Coast points. Passenger fares. Long and Short Hauls, §5 (k) 451 Utah common points to Denver, Omaha, Los Angeles, etc. Passenger fares. Branch Lines, §4 (b) 105 Utah common points to Mississippi and Missouri Rivers and Chicago, 111. Rates. Branch Lines, §4 (b) 105 Utah to Missouri and Mississippi Rivers and Chicago, 111. Rates. Long and Short Hauls, §5 (k) 451 Utah points to Montana points. Fruit. Reasonableness of Rates, §84 (e) 638 Utah points to NprtU Dakota. Fruit, Reasonableness of Rates, §84 (f) 638 1086 INDEX OF LOCALITIES Pa^e Vanceburg, Ky., to Carroll Park Siding, Baltimore, Md. Chestnut ties. Repara- tion, §4 (yy) 758 Vaughn, N. Mex., to Kansas City, Mo. Sheep. Facilities and Privileges, §19 (d). Long and Short Hauls, §5 (j) 405, 451 Vicksburg, Miss., to Monroe, La., Rates. Long and Short Hauls, §10 (cc) 472 Vicksburg, Miss. Relative rates. Long and Short Hauls, §10 (aa) 472 Vicksburg, Miss., to New Bedford, Miss. Cotton. Demurrage, §9 (b) 200 Vicksburg, Miss., to Northeastern Texas. Rates. Discrimination, §13 (b) 270 Victoria, Va., to Alliance, O. Lumber. Reasonableness of Rates, §105 (1) 667 Vincennes, Ind., to Louisville, Ky. Bar iron. Reasonableness of Rates, §96 (e) . 656 Vincennes, Ind., to Owatonna, Minn. Watermelons. Long and Short Hauls, §5 (mm) 456 Vincent, Ark., to Memphis, Tenn. Uncompressed cotton. Equalization of Rates, §4 (2) (r) 301 Vineland, N. J., to Pennsylvania points, New York, N. Y., and Chicago, 111. Guinea pigs, rabbits, rats. Express Companies, §11 (7) (a) 380 Virden, 111. Mine Rating. Cars and Car Supply, §27 (a) 122 Virginia ports. Trimming and leveling. Facilities and Privileges, §6 (b) ... 391 Vista, Mo., to Kansas City, Mo. Wood and coal. Absorption of Charges, §2 (d) 1 Wabash, Ind., to St. Louis, Mo. Wood pulp. Reasonableness of Rates, §155 (a) . 695 Wabena, Wis., to Illinois and Iowa. Lumber. Blanket Rates, §8 (gg) 90 Waco, Tex., to Cairo, 111. Passenger Fares and Facilities, §2 (g) 519 Walcottville, Ind., to Ft. Wayne, Ind. Iron. Equalization of Rates, §4 (2) (a). Special Contracts, §2 (k) 298, 773 Walla Walla, Wash. Commodity Rates. Long and Short Hauls, §5 (1) 452 Wallabout Basin, N. Y. Lighterage. Terminal Facilities, §3 (k) 837 Wallingford, Vt., to Denver, Colo. Agricultural implements. Minimums, §7 (o) . 503 Walsenburg district, Colo. Reconsignment, §2 (f ) 699 Walsenburg district, Colo., to Kansas, Oklahoma and Texas. Coal. Through Routes and Joint Rates, §11 (2) (a) 850 Walsenburg district, Colo., to Missouri River. Coal. Reasonableness of Rates, §67 (e) 625 Walsenburg district, Colo., to Nebraska and South Dakota points. Coal. Discrimination, §8 (3) (f) 249 Walsenburg district, Colo., to Nebraska points. Coal. Discrimination, §7 (e) . 244 Walsenburg district, Colo., to Panhandle of Texas points and Eastern New Mexico. Coal. Differentials, §7 (e) 218 Walsenburg district, Colo., to Texas and New Mexico points. Coal. Through Routes and Joint Rates, §11 (2) (j) 853 Walsenburg field, Colo., to Kansas, Nebraska, Oklahoma, Texas and New Mex- ico. Coal. Blanket Rates, §11 (g) 96 Warren, Pa., to Cadillac, Mich. Gas machinery. Reasonableness of Rates, §87 (a) 649 Warren, Pa., to Cadillac and Jennings, Mich. Gas plant machinery. Tariffs, §7 (XXX) 825 Warroad, Minn., to Grand Forks, N. D. Poles and posts. Reasonableness of Rates, §125 (b) 684 INDEX OF LOCALITIES 1087 Page Warsaw, N. C, to New York, N. Y. Dressed pine. Through Routes and Joint Rates, §19 (d) 881 Warsaw Junction, O., to Perth Amboy, N. J. Re consignment, §5 (d) 703 Washburn, Wis., to points west of Minnesota Transfer. Salt. Discrimina- tion, §10 (e) 266 Washington. Cooperage. Allowances, §8 (2) (a) 56 Washington, D. C, from Maryland points. Telephone facilities. Telephone Companies, §1 (a) 832 Washington, D. C, to Bremerton, Wash. Merchandise. Express Companies, §11 (8) (a) 380 Washington, D. C, to Glenndale, Md. Manure. Reasonableness of Rates, §81 (f) 636 Washington, D. C, to Laurel, Md. Fares. Electric Lines, IV (d) 282 Washington to St. Paul, Minn., Chicago, 111., Mississippi River, Missouri River, Southeastern Kansas, Denver and similar points. Shingles and forest products. Advanced Rates, §13 (k) 33 Washington, D. C, to Virginia points. Fares. Electric Lines, IV (e) 283 Washington, D. C. Telephone. Special Contracts, §2 (o) 774 Washington, Okla., to Arcadia, La. Corn. Reparation, §9 (h) 770 Washington points to Astoria, Ore. Wheat. Differentials, §6 (d) 215 Washington points to the East. Lumber and forest products. Differentials, §7 (h) 221 Washington points to Montana points. Lumber and forest products. Through Routes and Joint Rates, §11 (2) (c) 851 Washington points to various points. Lumber. Through Routes and Joint Rates, §11 (2) (p), (q) 856 Washington to other states. Common lumber, cedar, fir, etc. Advanced Rates, §8 (1) (i) 28 Watonga, Okla., to Ft. Worth and Dallas, Tex. Cement plaster. Advanced Rates, §5 (2) (d). Blanket Rates, §7 (bb) ..15, 84 Waukegan, 111., to Carthage, Mo. Wire. Long and Short Hauls, §12 (2) (b) 475 Waukesha, Wis., to Chicago, 111. Beer. Advanced Rates, §18 (2) (a) 42 Waukesha, Wis., to Minnesota, Iowa., etc. Beer and mineral water. Classifi- cation, §7 (f ) 140 Wausau, Wis., to Cravens, La. Machinery. Reparation, §16 (dd) 737 Wautoma, Wis., to Springfield, Mo. Potatoes. Reparation, §7 (ccc). Through Routes and Joint Rates, §11 (2) (v) 768, 857 Waverly, N. Y., to Binghamton, N. Y. Coal. Reasonableness of Rates, §67 (i) 626 Webster, S. D., to Manchester, N. H. Foodstuffs. Reparation, §7 (y) 764 Weehawken, N. Y., to Linndale, O. Iron pyrites. Reasonableness of Rates, §96 (g) 656 Weiner, Ark., to East St. Louis, 111. Walnut logs. Blanket Rates, §11 (ee) 95 Wellington, O., to Evansville, Wis. Butter. Reconsignment, §5 (g) 703 Wellston, O., to Manitowoc, Wis. Coal. Reasonableness of Rates, §67 (t) 628 West Edmeston, N. Y., to New Britain, Conn. Lumber. Through Routes and Joint Rates, §11 (2) (d) 851 West Pawlett, Vt., to Eagle Bridge, N. Y. Fluid milk. Advanced Rates, §3 (aa), §18 (7) (a) 11, 44 1088 INDEX OP LOCALITIES Page West Virginia to Lake Erie ports. Coal. Advanced Rates, §17 (e) 38 Westlake, La., to Towner, Colo. Lumber. Long and Short Hauls, §5 (11) . . 456 Wessington Springs, S. D., from Cleveland, O., and Bessemer, Ala. Cast iron pipe. Minimums, §7 (nn) 507 Western Classification Territory. Commodity rates. Advanced Rates, §6 (3) (a), §15 (d) 17, 36 Western points to the East. Wool. Reasonableness of Rates, §156 (a) 695 Western points to Mississippi River and the East. Wool, Blanket Rates, §11 (a) 93 Western states to and beyond the Missouri River. Stock cattle and sheep. Advanced Rates, §18 (9) (a) 45 Western territory to Eastern points. Wool. Blanket Rates, §9 (a) 90 Western territory to Eastern destinations. Mohair. Reasonableness of Rates, §115 (a) 677 Wheeling, W. Va., from various points. Steam coal. Discrimination, §6 (e) 242 Wheeling, W. Va., to Beloit, Wis. Cotton drills. Through Routes and Joint Rates, §15 (z) 869 Wheeling, W. Va., to Nowata, Okla. Iron roofing. Reasonableness of Rates, §97 (b) 658 Whiting, Ind,, to Birmingham, Ala. Oil. Crimes, §7 (e) 185 Wichita, Kan., from and to various points. Live stock and packinghouse products. Reasonableness of Rates, §118 (b) 679 Wichita, Kan., from New York and Eastern territory. Cotton and knit goods. Long and Short Hauls, §9 (s) 464 Witchita to Arkansas and Louisiana points. Fresh meats and packing- house products. Advanced Rates, §19 (c) 46 Wichita, Kan., to Kansas City, Mo. Fresh meats and packinghouse prod- ucts. Reasonableness of Rates, §103 (b) 659 Wichita, Kan., to Memphis, Tenn. Fresh meats and packinghouse prod- ucts. Reasonableness of Rates, §103 (b) 659 Wichita, Kan., to Oklahoma, Texas and New Mexico. Peddler Car Service (b) 532 Wichita, Kan., to the Southeast, Carolina territory. Trunk Line territory, and Illinois territory. Proportional rates. Reasonableness of Rates, §118 (b) . . 679 Wichita, Kan., to Southeastern territory. Fresh meats and packinghouse products. Advanced Rates, §5 (2) (b). Reasonableness of Rates, §118 (a) 14, 678 Willamette Valley points to San Francisco, Cal. Lumber and lath. Ad- vanced Rates, §13 (c) •. 32 Willamette Valley to San Francisco, Cal. Lumber and lath. Advanced Rates, §13 (1), Equalization of Rates, §3 (aa), Interstate Commerce Commission, §9 (a) 34, 290, 431 Willamette Valley to San Francisco, Cal. Lumber. Reasonableness of Rates, §105 (e) 666 Williams, Ariz., to Arizona points. Lumber. Reasonableness of Rates, §105 (k) 666 Wilkes-Barre, Pa. Switching. Switch Tracks and Switching, §7 (e) 793 Wilkes-Barre, Pa., to Carthage, N, C. Axles. Overcharges, §9 (b) 516 INDEX OF LOCALITIES 1089 Page Wills Point, Tex., to Stockton, Cal. Elm hub blocks. Reasonableness of Rates, §80 (a) 635 Wilmington, Cal. Rates. Equalization of Rates, §3 (s) 294 Wilmington, Cal. Rates. Evidence, §33 (a) 343 Wilmington, Del., to Diamondville, Wyo. Car wheels. Reasonableness of Rates, §58 (a) 620 Windsor, Canada, from points north, west and south of Detroit, Mich. Differentials, §4 (a) 210 Windsor, Out., from West Virginia points. Lumber. Through Routes and Joint Rates, §15 (u) 868 Windsor, Colo., to Louisiana points. Flour. Reasonableness of Rates, §83 (c) 636 Winnipeg, Can., to New Jersey and Pennsylvania. Rail-lake-and-rail rates. Crimes, §10 (f) 188 Winston-Salem, N. C, from Chicago, 111., East St. Louis, 111., Louisville, Ky., Columbus, O., and Cincinnati, O. Class Rates and certain commodity rates. Discrimination, §8 (3) (d) 249 Winterburn, W. Va., to Newark, N. J. Lumber. Reparation, §9 (f ) 769 Wisconsin points to Chicago, 111. Cabbages. Through Routes and Joint Rates, §11 (2) (u) 857 Wittenberg, Wis., to Whittemore, la. Posts. Reparation, §2 (m) 751 Wood River, Neb., to various points. Grain. Cars and Car Supply, §20 (e) 119 Woodson, Ark., to Kansas points. Lumber. Reasonableness of Rates, §105 (a) 665 Woodson, Ark., to Memphis, Tenn. Lumber. Blanket Rates, §12 (d) 97 Woodson, Ark., to Oklahoma, Kansas and Missouri. Lumber. Blanket Rates, §7 (e) 85 Woolam, Miss., to Owensburg, Ind. Lumber. Tariffs, §3 (3) (c). Through Routes and Joint Rates, §13 (c) 810,860 Wooley's Spur, Ida., to McKinney, Tex. Wheat. Through Routes and Joint Rates, §21 (a) 882 Worcester, Mass., to Chicago. Old canvas. Classification, §11 (n) 144 Worcester, Mass., to St. Louis, Mo. Rate. Reparation, §7 (n) 762 Wynne, Ark., to Horatio, Ark. Fruit baskets. Reasonableness of Rates, §85 (a) 648 Wyoming district. Pa., to Baltimore, Md. Coal. Through Routes and Joint Rates, §11 (2) (1) 854 Wyoming district. Pa., to Perth Amboy, N. J. Coal. Reparation, §3 (c).. 720 Wyoming points to Fremont, Neb. Lump coal. Differentials, §5 (c) 211 Wyoming points to Idaho points. Coal. Reasonableness of Rates, §67 (n) 627 Yaden, Ky., to Cincinnati, O. Crossties. Reasonableness of Rates, §105 (d) ... 665 Yonkers, N. Y. Lighterage, §3 (f), §4 (a) 440,441 Yonkers, N. Y., to Jersey City, N. J. Lighterage. Allowances, §8 (3) (c) . . 59 Yonkers, N. Y., to San Francisco, Cal. Electrical machinery. Tariffs, §7 (eee) 823 Youngstown, O., to Liberal, Kan. Wrought iron pipe. Discrimination, §8 (3) (c) 248 Youngstown, O., to Monroe, N. C. Sheet iron. Classification, §18 (5) (a) . . 154 Yuma, Ariz., from eastern points. Merchandise. Reasonableness of Rates, §109 (a) 673 UNIVERSITY OF CALIFORNIA LIBRARY BERKELEY Return to desk from which borrowed. This book is DUE on the last date stamped below. i JAN 30 t948 *l&3ra LD 21-100m-9,'47(A5702sl6)476 / / 261215 J