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It appeared from the facts in this case that in furnishing cars defendant unjustly discriminated against the complainant, which desired to ship hay from various points in Michigan, but the proof failed to indicate with any degree of certainty the damage caused by the wrongful discrimination and the amount which the complainant was entitled to recover by way of reparation. The complainant was granted leave to apply within a limited time for further hearing, and, application having been made, additional hearing has been had.
In Gallogly & Firestine v. Cincinnati, Hamilton & Dayton Railway Company it was decided (11 I. C. C. Rep., 1), that a case before the Commission involving violation of the act to regulate commerce through alleged discrimination in furnishing cars, and for which reparation is demanded, is not barred under section 9 of the act by the previous institution in a State court of a suit for damages between the same parties, based upon such discrimination. The defendant's refusal to furnish to complainants cars for interstate shipments of corn from Leipsic, Ohio, while it contemporaneously furnished to complainants' competitors cars for like shipments was unlawful discrimination, but the evidence relating to damages was found unsatisfactory and inconclusive, and complainants were allowed until May 20, 1905, to apply for further hearing, but such application was not filed.
The Commission rendered its decision in the case of Thompson . Pennsylvania Railroad Company in March of the present year. (10 I. C. C. Rep., 640.) The case involved a claim for reparation based upon alleged discrimination in furnishing cars during the anthracite coal strike of 1902. During this strike, which caused an extremely large demand for bituminous coal and great increase in the price of that coal, complainant arranged for the purchase and sale of the surplus product of certain bituminous mines, called surface or country mines, and for hauling the coal by wagon to stations or sidings and loading upon defendant's cars. Under normal conditions this could not be done at a profit. Complainant demanded and received several cars during the month of November, 1902. In that month defendant issued a rule limiting its coal cars to mines having track connection with its road, and this rule was kept in force during the strike period.
The demand for coal throughout the strike resulted in the greatest tax upon the railroad equipment and in the congestion of lines, yards, and terminals. The mines loading by tipple and by track connection received far less than their usual car supply. Under those and other attendant conditions the defendant's temporary rule confining its comparatively few available cars to mines generally in operation, where quick loading could be accomplished, and declining to permit its sidings or switches to be further congested by loading coal from
H. Doc. 195, 59-1-4
wagons, not only by complainant, but by many others temporarily engaged in the same pursuit, was calculated to hasten rather than retard the movement of coal for public use and was not unreasonable or unjust. No opinion was expressed upon the point whether a railroad may, under ordinary conditions, discriminate in furnishing cars as between the methods of loading by tipple and wagon or whether without a rule it may, even in great emergency, discriminate between the two classes of shipments, and the decision is confined to the particular situation disclosed by the record in that proceeding.
DEPARTURES FROM PUBLISHED TARIFF RATES.
Formal decisions rendered by the Commission during the year involving departures from published tariff rates are as follows:
The Santa Fe case.-It was held by the Commission in a proceeding entitled In the Matter of Alleged Unlawful Rates and Practices in the Transportation of Coal and Mine Supplies by the Atchison, Topeka & Santa Fe Railway Company (10 I. C. C. Rep., 473), that the act to regulate commerce, which requires carriers to publish and adhere to their tariffs, had been grossly and continuously violated by the Atchison, Topeka & Santa Fe Railway Company during the preceding five years in the following respects: It published rates on interstate shipments of coal from mines in Colorado and New Mexico which, under the tariffs, applied only to the transportation thereof, but which for the Colorado Fuel and Iron Company were made by the railway company to include the price of the coal, and such price was paid to the Fuel and Iron Company by the railway company. While giving rebates to the Fuel and Iron Company from such tariff rates it charged the full tariff rates on interstate shipments of coal by other shippers in not only the general coal region involved, but in the same coal field. This practice of the railway company resulted in closing markets for coal to shippers competing with the Colorado Fuel and Iron Company.
It was further held that the act of February 19, 1903 (the so-called Elkins law), which prohibits carriers from transporting traffic until a tariff has been published, requires observance of the tariff, provides a penalty for each violation of not less than $1,000 nor more than $20,000, and applies both to the carrier and the party receiving the concussion, had, respecting the transportation involved in this proceeding, been systematically and continuously violated by the Atchison, Topeka & Santa Fe Railway Company and the Colorado Fuel & Iron Company from the day of its passage down to November 27, 1904, when the tariffs upon which this coal moved were reduced in all cases $1.15, and this notwithstanding the Atchison, Topeka & Santa Fe Railway Company had, in a suit begun in the United
States circuit court at the instance and request of this Commission, been under injunction since March 25, 1902, to observe in all respects its published schedules of rates. This matter is again referred to under the head of Court Decisions."
The matter of terminal railroads.-In the Matter of Divisions of Joint Rates and other Allowances to Terminal Railroads, decided in March last (10 I. C. C. Rep., 661), it appeared that carriers operating lines to points west of the Mississippi River made rates to such points which were the same from East St. Louis, Ill., as from St. Louis, Mo. A large portion of the less than carload traffic was hauled by team from East St. Louis to depots of the rail carriers in St. Louis, mostly by regularly organized transfer companies, but to some extent by teams owned by shippers. The rail carriers accepted delivery at depots of the transfer companies in East St. Louis, paid the transfer companies 5 cents per 100 pounds for such transfer to St. Louis, and also paid a like sum to the Grant Chemical Company, a shipper, for a similar transfer of that company's shipments from East St. Louis, but refused to make such payments to other shippers. The Eclipse Transfer Company was organized for the sole purpose of obtaining these payments; it used teams owned by the Simmons Hardware Company, and used the storehouse of the latter for a receiving depot. The Commission held that the payments to the Grant Chemical Company and the Eclipse Transfer Company were illegal. No opinion was expressed as to whether lines leading west from St. Louis may properly apply the St. Louis rate to the station of a bona fide transfer company in East St. Louis and absorb the cost of transfer to St. Louis, nor whether the rail carriers may, by proper schedules, allow all shippers from East St. Louis a fixed sum per 100 pounds for transporting their merchandise to the carriers' depots in St. Louis, those questions not being presented by the record in this proceeding.
It further appeared that the Granite City, Alton & Eastern Railroad Company was organized for the purpose of operating several thousand feet of railway used in the business of the St. Louis Sirup and Preserving Company, and located on the latter's private groundsat Granite City, Ill. The Granite City company has constructed a short track outside the limits of the grounds of the preserving company and used, jointly with other parties, another track about 3,000 feet in length. By means of these tracks the Granite City company connected with other railroad companies and was paid by the latter certain divisions of transportation charges on traffic shipped by the preserving company and hauled to such connections by the Granite City company. Upon this point it was decided, assuming that the Granite City company and the preserving company are identical in ownership, concerning which a definite finding was not made, that
the payments to the Granite City company constituted rebates and were illegal.
It was also shown in this investigation that the Illinois Terminal Railroad Company was organized in the interest of the Illinois Glass Company and used tracks constructed by the latter on its private grounds at Alton, Ill., for the purpose of connecting its plant with different lines of railway. The facts relating to the construction and operation of the terminal railroad were found, and the Commision held that if the glass company owns and operates the Illinois Terminal Railroad the case would be in all respects identical with the facts developed at the Chicago hearing in this investigation (10 I. C. C. Rep., 385), and the conclusions there announced would apply here; but if the holders of the capital stock of the glass company own the railroad company a different question might be presented.
The Davies case. In the case of Davies v. Pere Marquette Railroad Company and Michigan Central Railroad Company (10 I. C. C. Rep., 405), the complainant alleged the collection by defendants of charges in excess of the tariff rate on certain shipments of fruit from Michigan points to Chicago and an unlawful contract with a delivering agent in Chicago, and thereupon complainant insisted that defendants had been guilty of penal offenses under the law which should be reported for prosecution. The complainant disclaimed at the hearing any demand for damages or reparation. The facts showed errors in charges arising from lack of knowledge by the agent at Chicago of the kind of package used or the actual contents of the package shipped to complainant, the shipments having been unloaded by complainant, and also from a practice by the agent of the initial carrier at one point, temporarily used as a receiving station for fruit, of making a charge in addition to the freight rate without the knowledge of the railroad company. The compensation paid to the delivering agent in Chicago for unloading and handling the freight in that city was apparently reasonable. In this case it was not considered by the Commission that the defendants were guilty of willful or intentional violation of the law.
Besides the reparation ordered in the above-mentioned cases of the City Gas Company of Norfolk and George M. Spiegle & Co., the following-described cases involving reparation have been decided during the year:
St. Louis Hay and Grain Company case.—In the case of the St. Louis Hay and Grain Company v. Mobile & Ohio Railroad Company et al. (11 I. C. C. Rep., 90), the following rulings were made:
Stopping a commodity in transit for treatment or reconsignment is in the nature of a special privilege which the carrier may concede,
but which the shipper, under the present state of the law, can not demand as a matter of lawful right; but carriers may not unjustly discriminate between markets or individuals in the granting of such privileges.
In allowing the privilege of reconsigning hay at East St. Louis to southern destinations, defendants are entitled to charge for such privilege what it actually costs them; and the fair average cost to the carrier when complainant or others handle the hay through warehouses at East St. Louis, over and above the cost of handling in East St. Louis a through shipment via East St. Louis to southern destinations, is $2 to $2.50 per car, or approximately 1 cent per 100 pounds. Shipments routed through East St. Louis are carried from that point to southern destinations at a proportional rate, which is 2 cents per 100 pounds above the rate from Ohio River crossings to the same destinations. Hay reconsigned to such points from warehouses in East St. Louis is charged 4 cents per 100 pounds above the Ohio River rate. Hay appears to be reconsigned from warehouses at Ohio River points and at Nashville and Memphis to southern points without additional charge.
It was held that defendants' rates on reconsignments of hay from warehouses in East St. Louis to points south of the Ohio River, amounting to 2 cents more than their proportional rate from East St. Louis on through shipments, were unjust and unreasonable, and that complainant was entitled to reparation.
Paxton Tie Company case.-In Paxton Tie Company v. Detroit Southern Railroad Company (10 I. C. C. Rep., 422), it appeared that between December 16, 1902, and April 6, 1903, defendant unjustly discriminated against complainant in furnishing cars for the shipment of cross-ties by refusing to provide any cars for such shipments by complainant while it did furnish cars to other persons for the interstate shipment of lumber, stone, and many other freight articles, and also supplied cars for the shipment of cross-ties destined almost entirely for its own use. Reparation in the sum of $630 was awarded to complainant.
Hope Cotton Oil Company case. In the case of the Hope Cotton Oil Company v. Texas & Pacific Railway Company (10 I. C. C. Rep., 696), it appeared that complainant desired to ship cotton seed in carloads from Louisiana stations on defendant's line to Hope, Ark., at the sum of local rates based upon Texarkana, Ark., which sum was less than the published through charge, but defendant refused to apply its local rate to Texarkana, which was 12 cents per 100 pounds on such through shipments, and also refused to allow complainant to ship locally to Texarkana under the 123-cent rate in force to that point. The Commission held that while defendant was entitled to insist upon the application of the through rate to the through