ANSWER OF SOUTHERN PACIFIC COMPANY.

Before the Board of Railroad Commissioners of the State of California. CUNNINGHAM & COMPANY, Plaintiff,

VS.

SOUTHERN PACIFIC COMPANY, Defendant.)

Answer.

The above named defendant, without in any manner waiving, but in all things expressly insisting upon its objections herein made, that the complaint of the above named plaintiff herein filed does not state facts sufficient to authorize the proceeding, for answer in its behalf to said complaint:

Avers, that it has no information or belief upon the subject sufficient to enable it to more definitely answer the averments of the complaint contained in paragraph I thereof, and therefore, and upon that ground, denies the same.

Defendant admits the averments contained in paragraph II of said complaint.

Defendant avers that it has no information or belief upon the subject sufficient to enable it to more definitely answer the averments contained in paragraph III of said complaint, and therefore, and upon that ground, denies the same.

Defendant denies that for more than two years last past, or for any time, it has made, or now makes, unjust, or any discrimination against plaintiff in freight charges for the transportation of all, or any, lumber shipped by said plaintiff' over the said railroads, or any of them, from the city of Santa Cruz or to the said town of Santa Margarita, or to all intermediate stations, or to any intermediate station, or that it has made or now makes any discrimination in freight charges for the transportation of lumber, or otherwise, or at all; or that said or any discrimination is in favor of shippers of lumber from other towns on the line of said railroad, either Capitola, or Monte Vista, or Loma Prieta, or Aptos, or Pajaro, to said Santa Margarita, or to the said intermediate points, or to any intermediate point; or that said, or any discrimination, will appear from the tables of distances and rates annexed to the complaint, marked "Exhibit A” and made a part of said complaint; and defendant denies that said tables of distances and rates attached to the complaint and marked "Exhibit A" are correct, but to the contrary, defendant a vers that the same are incorrect.

Defendant avers that it has no information or belief on the subject sufficient to enable it to answer the averment of paragraph V "that plaintiff is compelled to compete in the market along the line of said railroad at all points between said Monte Vista and said Santa Margarita and all intervening points between said last named places," and therefore, and upon that ground, denies the same.

And further answering the second and separate cause of action set forth in the complaint:

Defendant avers, that it has no information or belief upon the subject sufficient to enable it to more definitely answer the averments of the complaint contained in paragraph I thereof, and therefore, and upon that ground, denies the same.

Defendant admits the averments contained in paragraph II of said complaint.

Defendant avers that it has no information or belief upon the subject sufficient to enable it to more definitely answer the averments contained in paragraph III of said complaint, and therefore, and upon that ground, denies the same.

Defendant denies that the rates charged by it for the transportation of lumber and planing-mill products over the lines of its said railroads, or any of them, from the city of Santa Cruz to the town of Santa Margarita on the line of said railroad, or to all points, or to any point, on the line of said road between said city of Santa Cruz and said town of Santa Margarita, are excessive or unjust, or that the said rates should be thoroughly, or at all revised, or should be reduced not less than 33 per cent upon the existing rates, or should be reduced at all; and as to this, defendant avers that the said rates are, and each rate is, reasonable, just, and fair, and yield no more that a proper return for the service rendered in the transportation.

Defendant denies that all of the witnesses to be produced in this behalf, upon the hearing of this complaint, reside at the said city of Santa Cruz, or that it would work a great hardship or inconvenience, or will entail a great expense, either upon them or upon the plaintiff, to be required to testify before your honorable Board at any place other than in said city of Santa Cruz; and as to this, defendant avers that it is willing to accommodate the plaintiff by consenting to taking of deposition of any witness plaintiff may have at the said city of Santa Cruz at any reasonable and proper time, and upon proper notice to it so as to enable it to attend the taking of said deposition; and further, defendant avers that its records, books, and documents which may be necessary to have produced in evidence at the trial of this cause are all in the City and County of San Francisco, and it would be a great inconvenience to the defendant, and would work an interruption of its business, to remove the said records, books, and documents out of the City and County of San Francisco; and defendant further avers, that the witnesses to be produced by it reside for the most part in the City and County of San Francisco, and elsewhere, but not in the city of Santa Cruz, and defendant respectfully requests that the hearing of this cause be had at the regularly established office of this honorable Board of Railroad Commissioners, in the City and County of San Francisco.

Wherefore, defendant prays judgment that the plaintiff take nothing by this proceeding, and that the action be dismissed.

JAS. C. MARTIN, Attorney for Defendant.

C. F. Smurr, being duly sworn, deposes and says that he is an officer and agent, to wit, General Freight Agent, of the Southern Pacific Company, defendant in this cause, and makes this verification for and in behalf of said defendant; that he has read the foregoing answer and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated upon his information or belief, and as to those matters believes that the same are true.

C. F. SMURR.

Subscribed and sworn to before me, this 17th day of November, 1893. E. B. RYAN,

[SEAL.]

Notary Public in and for said City and County of San Francisco. Filed in office of Railroad Commissioners. Received November 27, 1893. JAS. V. KELLY,

Secretary.

COMMUNICATION FROM C. F. SMURR TO E. H. SCHOFIELD, OF YREKA.

[D. O. C. 116,775.]

Mr. E. H. SCHOFIELD, Yreka, Cal.:

SAN FRANCISCO, April 5, 1894.

DEAR SIR: Returning herewith bill of lading, expense bill, and my letter of March 31st, relative to claim as above, and replying to your favor of April 2d, in which you call our attention to the fact that you have written the Railroad Commissioners that we have charged you in excess of legal tariff in amount $5 50.

If you will kindly refer to bill of lading issued by the agent of the Chicago, Burlington, and Quincy, dated Sterling, Ill., February 1, 1894, you will note that the articles called for in the bill of lading are 9 boxes nested wood burial cases, weight 2,010 pounds, and 2 boxes plain metal coffin trimmings, weighing 370 pounds; entire shipment rated at $3 14 per 100 pounds. It develops that instead of two boxes plain metal coffin trimmings they were silver-plated, and the Western Classification, which governs on shipments from Sterling, Ill., to Montague, Cal., provides as follows:

At weight of 2,000 pounds, makes charges $63 20. Silver-plated trimmings, Chicago to Montague, $4 60 per 100 pounds; weight, 370 pounds; · charges, $17 04; total charges, Sterling to Montague, $80 24. As charges have been properly assessed, there is no overcharge.

So far as the agent of the railroad at shipping point is concerned, it is to be presumed that he issued the bill of lading from description of the goods given him by the shipper. Probabilities are that he never saw the goods. Had the bill of lading called for 2 boxes silver-plated coffin trimmings, at $3 14 per 100 pounds, you would have a claim against the line issuing the bill of lading for overcharge.

Regret, under the circumstances, that we are not in position to refund the amount claimed.

Yours truly,

C. F. SMURR.

R. O. SHIVELY vs. THE SOUTHERN PACIFIC COMPANY.

SAN JOSÉ, CAL., December 2, 1893.

J. V. KELLY, Secretary of State Board of Railroad Commissioners:

DEAR SIR: I received the other day a notice from your office that the case of "R. O. Shively vs. The Southern Pacific Company " had been set down for hearing upon Monday, December 4, 1893.

My engagements in Court, created prior to your letter, will prevent me from being present in person on that day.

This case has been continued several times during the past year, at the request of the officials and counsel of the Southern Pacific Company. I have offered no strenuous opposition to such continuances, for the reason that I was informed that the Commission had in process of preparation a schedule of rates upon merchandise in which a reduction of ten per cent was aimed at, and also which would be based upon the Western Classification. As both of these changes in the freight schedules of the defendant are in the line of the relief sought by the Shively complaint, I have been content to await developments. I understood that such schedule has been completed and will go into effect January 1, 1894. I would suggest that since this schedule offers partial relief in the direction we have been moving, it would be well to continue the hearing upon the Shively complaint until after the schedule had gone into effect, when the extent of its remedies can be determined by experiment, and when such defects and inequalities in it as are then discovered can be pointed out upon the hearing of this case. For this reason

I would respectfully ask that this hearing be continued until after February 1, 1894, and set for such date in that vicinity as shall be agreeable to the Commission.

Yours respectfully,

JOHN E. RICHARDS,

Attorney for R. O. Shively.

Filed in office of Railroad Commissioners, December 4, 1893, 10 A. M.

JAS. V. KELLY,
Secretary.

SAN JOSÉ, CAL., April 17, 1894.

Jas. V. KELLY, Secretary State Board of Railroad Commissioners:

DEAR SIR: I received a notification from you the other day that the case of "R. O. Shively vs. Southern Pacific Company," pending before the Commission, had been set for hearing upon April 18, 1894. It is impossible for me to be present on that day, for the reason that I have set for trial in the Superior Court of our county an important case upon that day, and a case which was so set down by the Court some time prior to your notification. There are other reasons, however, why, in my judgment, this case ought not to be hurried to a conclusion. The complaint of Mr. Shively in this matter seeks for two forms of relief at the hands of the Railroad Commission. The first is the adoption of the Western Classification. The second is a general revision of the freight schedules of the Southern Pacific Company and a reduction of tariffs upon the products of the State, as well as upon the merchandise imported into it and carried by the defendant to its destination. When these specific demands were first made through the medium of the Shively complaint, the agents and officers of the defendant insisted before the Commission that it would be impossible to put into effect the Western Classification and to apply its principles to schedules in California. I notice, however, that the action of the Commission of a few months ago, adopting in a modified form the Western Classification, has been acquiesced in by the defendant. I attribute this result to the Shively complaint, and I believe that after the changes of last January in classification have had time to become fully operative, the Commission can again insist upon a yet more complete compliance with the principles of the Western Classification in the schedules of the defendant. When the condition of my legal business gives me leisure I shall be pleased to call.up the Shively case, with special reference to this branch of relief, and point out to the Commission the particulars in which the Western Classification may be more completely adopted and enforced. There is another reason why this case should be continued for the present. Last January the Commission promulgated a new freight schedule, and the defendant meekly accepted its terms. That schedule has been in force and effect for about three months. I have observed that the merchants of San Francisco seem to be quite well pleased with that schedule, and are neither chartering ocean steamers nor organizing traffic associations since its adoption. I assume, therefore, that the new schedule is quite favorable to the San Francisco merchants. This fact arouses in my mind the grave suspicion that it is not equally advantageous to the merchant of the interior, and that sooner or later the country storekeeper will wake up to realize that somehow the San Francisco wholesale merchant has the advantage of him in the matter of his freight rates under the schedule recently adopted. The rates have not been in force long enough for this effect to be felt and for a complaint to take form from the interior, and until such time arrives I think the Shively complaint should remain pending before the Commission, as the medium through which the country merchant may make his objections to the present schedule known. There is yet another reason why this case should stand continued for the present at least, and it is this:

When the Shively complaint was filed by me it was based largely upon certain tables and statistics which had been prepared and promulgated