That logging roads, or tap lines, to which the defendant M. & O. R. Co. grants allowances from its published rates, are not common carriers, but such tap lines are the private properties of mill owners and the allowances are therefore unlawful.

That section 3 of the act to regulate commerce, which prohibits undue preferences as between individuals or localities, is not violated by the failure or refusal of defendants to make tap-line allowances to mill owners in their territory while such allowances are granted to mill owners by other carriers in the territory west of the Mississippi; but if the rate west of the Mississippi River, minus the allowance, is reasonable, it tends to support the proposition that a similar reduction east of the river would leave the rate reasonably high; and the M. & O. R. Co., by voluntarily making such allowances east of the river, practically concedes this proposition as to itself.

That no rule is more firmly grounded in reason or more universally recognized by carriers than that the greater the tonnage of an article of traffic the lower should be the rate, but defendants have made yellow-pine lumber an exception to this rule.

That lumber rates should be relatively low in view of the fact that lumber is inexpensive freight and few other commodities furnish to carriers so large a tonnage; that the lumber business is constant, yielding carriers revenue all the year; that no special equipment is constructed or furnished for its carriage; that it is loaded by shippers and unloaded by consignees, and where open cars are furnished the shipper is required, at considerable expense, to equip them so as to protect the lumber and the train; and that there is small risk, and in case of accident the damage is insignificant.

That the advance on April 15, 1903, of 2 cents per 100 pounds in the rate from the shipping points in question to the Ohio River was not warranted, and that the resultant increased rates are unjust and unreasonable.

This case is now pending for enforcement of our order in the United States circuit court for the eastern district of Louisiana.

The Texas Class and Commodity Rate case.-The decision of the Commission In the Matter of Class and Commodity Rates from St. Louis to Texas Common Points in Force over the Lines of the Missouri, Kansas & Texas Railway Company et al. (11 I. C. C. Rep., 238), really covered four separate proceedings against carriers leading from St. Louis to Texas common points.

These proceedings were instituted by the Commission on its own motion and based upon a general advance in rates on March 15, 1903. This advance applied to all class rates and most commodity rates from St. Louis to Texas common points. Such advance also affected rates from Kansas City and other points generally east of the Mis

souri River into Texas. Briefly stated, the decision of the Commission in this case was that rates in force on freight articles from St. Louis, Mo., to Texas common points prior to March 15, 1903, afforded reasonable compensation to the carriers, and as they had been in effect for a long period, and the material advances of such rates on that date were made through concerted action of the carriers, justification for the advances should be clearly shown; but this is a general investigation in which no complainant is demanding relief from some particular rate and no particular rates have been investigated, and it does appear, moreover, that the financial condition of the respondents, especially those operating in Texas, is not favorable. While impressed with the belief that these advances in rates are improper, the Commission did not feel warranted in making an order condemning such advances in that proceeding.

The Michigan Car Line case.-This was a case entitled In the Matter of Charges for the Transportation and Refrigeration of Fruit Shipped from Points on the Pere Marquette and Michigan Central Railroads (11 I. C. C. Rep., 129), and was decided by the Commission in June last.

The points of shipment are all in Michigan, and the decision in the case relates solely to the reasonableness of refrigeration charges imposed by the Armour Car Lines under an exclusive contract with the Pere Marquette Railroad Company authorizing the Car Lines Company to make such charges and requiring the use of Armour Car Line cars in the transportation of this traffic. The Michigan Central had withdrawn, before the decision was rendered, from its exclusive contract with the Armour Car Lines Company and was furnishing the refrigeration at the old charge of $2.50 per ton for the ice actually used. Upon that showing an order of dismissal in favor of the Michigan Central was directed.

This case was disposed of as follows:

A reasonable refrigeration charge on Michigan fruit shipped to interstate destinations from points in Michigan, when based upon the ice actually used, would be $2.50 per ton, and reasonable and just charges, if made by the car, are also found and stated for the service from Michigan to the destinations involved. As a result of this investigation, the Michigan Central Railroad Company has established for the present season the reasonable charge of $2.50 per ton for ice actually used, and that company is dismissed from the proceeding.

The Pere Marquette Railroad Company, while under contract to continue its use of Armour cars during the present season, has made reductions in its refrigeration charges amounting to from 15 to 30 per cent to apply during this season, and has filed a statement with the Commission that it intends for the season of 1906 to purchase or lease its own equipment and also furnish refrigeration as $2.50 per

ton for the ice used in transit. For reasons stated, including the consideration that the Commission is without authority to fix rates for the future, an order should not be issued at this time.

Railroad companies are required at common law to furnish suitable facilities for the conduct of the business in which they engage, and it follows that the respondent railroad companies, holding themselves out as carriers of perishable fruit, must provide the necessary refrigerator cars for the transportation of that traffic.

During performance of the transportation the car is to every practical intent the car of the railroad using it, and its measure of responsibility as to the sufficiency of the car is the same whether it obtains the car by purchase or lease.

Where a railroad company holds itself out as the carrier of a commodity which can only move under refrigeration, its duty extends ordinarily to furnishing that refrigeration, for the icing is not a mere incident to the transportation service, but is a part of the service itself, and, properly speaking, it is not ice but refrigeration that the carrier furnishes to accompany the shipment during every movement of its journey. In the case under consideration, where the railroad company insists that the ice shall be supplied only by the party whom it appoints and where it collects from the shipper and passes over to this party the compensation for that service, the company must stand responsible for the refrigeration as for any other part of the transportation.

Refrigeration, being incumbent upon the carrier as part of the transportation, the charge for that service stands like any other charge for transportation. It is the duty of the carrier to publish, file with the Commission, and observe its refrigeration charges, and the Commission has the same jurisdiction to inquire into the justice and reasonableness of such charges as of any other charge for the transportation of passengers or property.

It is not within the province of the Commission to prescribe the method or kind of refrigeration charges which shall be adopted by the carrier.

The Orange Rate cases.-In February of this year the Commission announced its decision upon the reasonableness of rates involved in what are known as the "Orange Rate cases," which were brought by the Consolidated Forwarding Company and the Southern California Fruit Exchange against the Southern Pacific Company, the Atchison, Topeka & Santa Fe Railway Company, and others. (10 I. C. C. Rep., 590.)

In this case it was held that the minimum carload weight, 26,000 pounds, for the carriage of citrus fruit in refrigerator or ventilator cars from southern California points to eastern destinations is not unreasonable with the 40-foot car in general use; that the carriers,

by compelling shippers to pay icing charges on citrus fruits as established by the car lines or do without necessary refrigeration for the traffic, have made these charges part of the cost of transportation and subject to regulation under the law; that such refrigeration charges have been reduced during the pendency of this proceeding, and the present charges for refrigeration are not found, upon the record, to be unreasonable; that the carriers' rate of $1 per hundred pounds on lemons from southern California to points on and east of the Missouri River is apparently reasonable, but that the rate of $1.25 per hundred pounds on oranges in carloads between the same points is unreasonable and unjust.

The Commission further stated in its conclusions that the defendants are unlawfully engaged in pooling this citrus-fruit traffic, but further action upon that branch of this proceeding is reserved by the Commission in view of the pendency in the United States Supreme Court of an appeal from a like decision of the circuit court for the southern district of California, in a suit brought by this Commission to enforce its order prohibiting these carriers from continuing to apply and enforce a provision in their tariffs reserving to themselves the routing of this traffic to eastern destinations and depriving shippers of their right to determine which of various established routes should be used for the transportation of their property. The carriers having failed to comply with the order of the Commission, a proceeding for its enforcement was instituted in the United States circuit court for the southern district of California.

The Minimum Charge case.-In Wrigley v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al. (10 I. C. C. Rep., 412), the Commission decided that the defendant's rule providing that the minimum charge upon any single shipment of freight shall be for 100 pounds at the class or commodity rate applying upon the article which is in force in the southern classification territory and also on traffic shipped to that territory from points in the central west shows upon the facts of this case not to be unreasonable or unjustly discriminating in its application to the complainant's traffic; but no opinion was expressed as to the legality of the rule upon traffic generally.

The Car Demurrage cases.-It was held by the Commission in four cases brought by T. M. Kehoe & Co. against the Charleston & Western Carolina Railway Company and others (11 I. C. C. Rep., 166), that the carriers' established charge of $1 per day for car demurrage was, upon the record in those cases, just and reasonable.

The East St. Louis Reconsignment case.-In St. Louis Hay & Grain Company v. Chicago, Burlington & Quincy Railroad Company and others (11 I. C. C. Rep., 82), the Commission held as follows:

When a carload of hay destined to East St. Louis, Ill., is delivered by the carrier at a warehouse designated by the shipper or consignee prior to arrival in that city, or to the proper switching road, or is placed upon the team track of the carrier, if no specific delivery is named, the car has been properly delivered and the carrier may insist that the consignee shall accept such delivery; and in case the consignee intercepts and sells the carload while upon a hold track, after arrival at East St. Louis, but before such delivery, he thereby accepts delivery. If the consignee, instead of removing the hay from the car so delivered, sells it to complainant, and a carrier, upon an order of the original consignee or of complainant, moves the car to complainant's storehouse in East St. Louis, that is a new and independent service on reconsignment, performed entirely within the State of Illinois, of which this Commission has no jurisdiction; but it is considered that Congress might, directly or through the Commission, require that shippers shall be allowed a certain time after arrival in East St. Louis to designate the point of delivery for interstate shipments, and that such delivery be made accordingly.

The Artz Passenger case.-In Artz v. Seaboard Air Line Railway, decided in November of the present year (11 I. C. C. Rep., 458), it appeared that defendant's passenger rate from Fernandina, Fla., to Savannah, Ga., was $5, or about 4 cents per mile; that a rate of 3 cents a mile was fixed by State authority for fares within the States of Florida and Georgia; that defendant's line between Savannah and Fernandina was more expensive to maintain than other parts of its system; that freight traffic was light and local passenger traffic insignificant; that a reduction of this interstate passenger fare would not contribute to development of the section or increase materially the passenger business of the line; that reducing the fare to 3 cents per mile would render the earnings of this part of the system less than the average upon the whole system and less than the average of other roads in that part of the country.

It was held that ordinarily the through interstate passenger fare should not exceed the sum of the local fares, but there is no specific requirement in the regulating statute to that effect, and the only question for determination was whether the fare complained of was unreasonable, and that upon all the circumstances of the case the fare could not be deemed excessive.

DISCRIMINATION BETWEEN LOCALITIES.

The Differential Freight Rate case.-Commercial organizations of Boston, New York, Philadelphia, and Baltimore having applied by petition to the Commission, asking that it examine the whole subject of differential rates to and from those cities and determine H. Doc. 195, 59-1- -3