No. 926.

FRYE & BRUHN, INCORPORATED; E. H. STANTON & COMPANY; MERCHANTS' PROTECTIVE ASSOCIATION; SEATTLE RETAIL GROCERS' ASSOCIATION; H. D. REAM; D. L. TOOF, AND T. B. FOWLER

v.

NORTHERN PACIFIC RAILWAY COMPANY AND CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

Submitted June 10, 1907. Decided April 14, 1908.

1. The difference in the character of testimony required to test the reasonableness of an entire schedule of rates covering the whole traffic of a particular carrier and that required to test the reasonableness of a rate on a particular commodity between two definite points considered and discussed.

2. Evidence of rebates allowed in the past when offered by a shipper who unlawfully received them is not competent to show that the published rate is unreasonable.

3. The fact that defendants accepted, and complainant actually paid, less than the published rates, in violation and in defiance of law, raises no presumption that the published rate is unreasonable, but tends rather to raise a presumption that the defendants somewhere in their rate structure exacted from shippers of other commodities rates that were unreasonably high.

4. Complaint alleges that defendants' rate of $170 per car for the transportation of live hogs in 36-foot single-deck cars from Missouri River, St. Paul, and points intermediate, to Seattle, is unreasonable; that from branch-line stations west of the Missouri River the local rate to mainline junction is added to the $170 rate, making an unreasonable combination through rate; and that defendants unlawfully fail and refuse to publish rates for the transportation of live hogs in double-deck cars; and damages are prayed for on account of the exaction of the alleged excessive rate on numerous shipments; on account of alleged shrinkage in weight in single-deck cars; and for alleged losses to complainant's business during two years when alleged prohibitive rates were in force. Held, That the $170 rate is not shown to be unreasonable; that there is not sufficient evidence in the record to warrant a finding that the combination rate applied on shipments from branch-line stations is ex

cessive, but it seems that the local rate on the branch line ought to be absorbed; that the record does not justify requiring defendants to furnish double-deck cars and reestablish double-deck carload rates; and that claim for reparation must be disallowed, except on certain 10 carloads shipped in 1904 under an excessive rate of $240 per single-deck car.

S. H. Cowan for complainants.

Charles W. Bunn for Northern Pacific Railway Company Chester M. Dawes for Chicago, Burlington & Quincy Railroad Company.

REPORT OF THE COMMISSION.

HARLAN, Commissioner:

This complaint relates to the carload rate on live hogs from Missouri River, St. Paul, and points intermediate, to Seattle, in the state of Washington. The petition was filed on behalf of various complainants who are interested in the rate either as shippers, buyers, dealers, packers, or traders, and who would therefore be benefited in one way or another by the reduction demanded in the petition. But the only complainant who actively participated in the hearing was Frye & Bruhn, Incorporated. This company operates a packing and slaughtering house at Seattle, and the whole record is directed to its special interest in the proceeding.

The rate challenged is a rate of $170 on 36-foot single-deck cars established February 11, 1905, and now in force between Missouri River points and Seattle. The same rate also applies to points in the district lying about 150 to 200 miles to the west of the Missouri River, from which most of the complainant's shipments originate. The principal complainant, which for convenience is hereinafter referred to simply as the complainant, alleges that the existing rate is excessive and unreasonable and demands that it be reduced to $148.36. The original petition also complains that on shipments from stations on branch lines in the territory referred to, west of the Missouri River, the local rate to the main-line junction is added to the through rate of $170 and results in a combination through rate which is also alleged to be unreasonable and excessive.

There is still another phase of the controversy to which some importance is attached by the complainant. The record shows that some years ago the defendants arranged to transport hogs between the points in question in what are known as double-deck cars. It established rates for movements in cars of that kind and afterwards canceled them. The complainant now demands that these rates be reestablished and be made again effective, so that it may move its hogs to Seattle in double-deck cars. Finally, it must be noted that the complainant also demands damages to an amount a little in excess of $40,000 on account of the exaction by the defendants of the al

leged excessive rate of $170 on 1,259 carloads of hogs that the complainant moved from Missouri River territory to Seattle during the years 1905 and 1906. On account of the alleged shrinkage in their weight, due to the close crowding of the hogs in the single-deck cars which complainant says it was compelled to use because of the failure of the defendants to provide double-deck cars, a further claim is made for $42,652. Additional damages to the amount of $150,000 are also claimed by the complainant for alleged losses in its business arising out of the fact that during the greater part of the years 1903 and 1904 the defendants maintained a rate of $200 for the movement of single-deck carloads of hogs between the points in question, which rate the complainant alleges was prohibitive. As a consequence of that rate the complainant was not able, as it asserts, to move any hogs from the territory in question during that time. The result was, as is alleged, that the complainant's business did not expand and yield the profits that otherwise would have been possible. And the damages suffered in that behalf are estimated at the sum last mentioned.

In presenting their respective sides of the controversy a number of witnesses were called by the complainant and by the defendants and many exhibits of one kind or another were offered in evidence. The result is an extensive and rather voluminous record, from which we have extracted such facts as are material and essential to a proper understanding of the issues. The case may be stated as follows:

So far back as 1897 the same persons who now control the complainant company. were engaged at Seattle in slaughtering, packing, and selling cattle and hogs under the firm name of Frye & Bruhn. The early history of the enterprise is not fully explained on the record, but it appears that the business expanded rapidly. In 1903 the complainant was incorporated in the state of Maine. At that time the sales had reached extensive proportions. Notwithstanding the alleged prohibitive rate in force during 1903 and 1904 and the alleged excessive rate of $170, established on February 11, 1905, the business of the complainant shows a steady and continuous growth and prosperity. At the hearing early in the year 1907 Mr. Frye, the president of the complainant, testified that the complainant's sales approximated $400,000 a month. It was slaughtering and dressing hogs at the rate of 70,000 annually. It was also slaughtering 40,000 head of cattle and 85,000 head of sheep a year. And it was operating thirty branch houses. Besides largely supplying the needs of the state of Washington the complainant was making extensive sales of meat products along the coast and was exporting meat in quantity to Alaska, British Columbia, Mexico, and Central America; all this being done notwithstanding the rate of $170, of which com

13 I. C. C. Rep.

plaint is made. From a business aggregating $1,500,000 in 1900 the complainant's sales grew to $2,700,000 in 1903 and approximated $4,000,000 in 1906. At the time of the hearing the indications were that complainant during the year 1907 would do a business approaching an aggregate of $5,000,000. While these figures cover the whole of the varied output of the complainant, it seems reasonable to accept them as indicating also a steady growth in its trade in hog products. This inference is fully justified by the fact that the shipments of live hogs to the complainant at Seattle have steadily increased in number since the rate of $170 was established on February 11, 1905.

The history of the rates in question is also an essential point in the controversy, and is necessary to an understanding of the merits of the case. The following table, prepared in the office of the Commission and filed as an exhibit by the complainant, shows the published rates in effect when the petition was filed and for the ten years previous to that date:

INTERSTATE COMMERCE COMMISSION, AUDITOR'S OFFICE,

November 1, 1905. Statement showing rates on hogs, carload, and packing-house products, carload, from Missouri River common points to Seattle, Wash., February 5, 1887, to date, via Burlington Route in connection with the Northern Pacific Railway.

Note 1.-In double-deck cars, 30 feet in length, train loads of 10 or more cars. Note 2.-In double-deck cars 36 feet in length, 116 per cent of the rate for cars 30 feet in length.

Note 3.-In single-deck cars, 30 feet in length, cars over 30 feet in length inside measurements, and not exceeding 40 feet in length, will be taken at an additional charge of 33 per cent per foot or fraction thereof for each foot or fraction thereof in excess of 30 feet. Transcontinental Freight Bureau No. T-6, File 429, and subsequent issues.

Note 4.-Applies from South Omaha, Nebr., only, per single-deck car regardless of length, expiring March 2, 1897. (B. & M. R. R. R., I. C. C. No. 408.) Note 5.-Single-deck cars, 33 feet, in train loads of not less than 10 cars. (B. & M. R. R. R., I. C. C. No. 701.)

Note 6.-Single-deck cars, 36 feet, in train loads of not less than 10 cars. (B. & M. R. R. R., I. C. C. No. 701.)

Note 7.-Single-deck cars 36 feet in length.

Transcontinental Freight Bureau

I. C. C. No. 376, Supplement 14 to S. R. 642, I. C. C. 544.

A careful examination of the above table in connection with its footnotes reveals the fact that except for a period of one week in August, 1898, when the rate between the points in question was $148.37 for a 36-foot car, the single-deck rate on hogs from Missouri River points to Seattle has never been so low as it is at the present time. The full force of that statement must be modified by reference to a period of about seven weeks during the fall of 1903, when there was in effect a rate of $140 on a 30-foot car, which is practically equivalent to a rate of $170 on a 36-foot car, the actual equivalent being $168. It further appears from the foregoing table that there was in effect for the few weeks between February 5, 1897, and June 2, 1897, a rate of $225 for a 30-foot double-deck car. This is equivalent to a rate of $261 on a 36-foot double-deck car. That rate expired on the date last mentioned. It was again in effect between September 9 and October 31, 1903. But except for those two short periods there have been no through rates on hogs in double-deck carloads between the Missouri River and Seattle.

The history of the published rates in effect between St. Paul and Seattle is substantially the same. From St. Paul, however, there was in effect for four years, from June 25, 1898, to July, 1902, a rate of $136 on 33-foot single-deck cars. This rate, however, was not published by the defendants, but was in force only over the Great Northern Railway. There was in effect from St. Paul over the line of the defendant, the Northern Pacific Railway Company, a rate on 30-foot double-deck cars of $225; this rate was in force from February 3, 1897, to July 1, 1902, and again from September 9, 1903, to October 31, 1903. The record seems to indicate, however, that, in addition to 9 carloads that moved in July, 1899, very few if any shipments were made by the complainant under that rate and over that road.

As the rate history is thus analyzed it will be seen that, except for a few brief periods, the defendants have maintained no rates during the last ten years for the transportation of hogs in double-deck carloads. It will also be observed, as to single-deck cars, that beginning with February 5, 1897, a rate of $200 per 30-foot car was constantly maintained by defendants, except during very short intervals of time, until February 11, 1905. Practically speaking, therefore, the rate complained of, $170 for a 36-foot single-deck car, is the lowest rate that has been in force between the points in question for any extended period in the past. This fact was pointed out by defendants upon the oral argument and apparently had not been fully realized by the complainant. Moreover, a rate of $261 for a 36-foot double-deck