No. 1191.

PHILLIPS-TRAWICK-JAMES COMPANY, COMPLAINANT; AND CUMMINGS & BENNETT COMPANY; HANKS SMITH & COMPANY; C. T. CHEEK & COMPANY; COLEMAN-TOMPKINS & COMPANY; MATTHEWS, HARRISON, PHILLIPS & COMPANY; J. COONEY & COMPANY; ORR, JACKSON & COMPANY, AND SPRATTON & SEAY, INTERVENERS,

v.

SOUTHERN PACIFIC COMPANY; TEXAS & PACIFIC RAILWAY COMPANY; ILLINOIS CENTRAL RAILROAD COMPANY; LOUISVILLE & NASHVILLE RAILROAD COMPANY, AND NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY COMPANY.

1. Complaint attacks the reasonableness of rates on canned goods and dried fruit from Pacific coast terminals to Nashville as compared with other points in Tennessee, Ohio, and Kentucky, and alleges violation of the fourth section of the act; Held, That the rates complained of are not unreasonable per se and that they do not unjustly discriminate against Nashville and in favor of the other points named.

2. The record discloses that the traffic involved in the complaint is hauled through Nashville to farther distant points at lower rates than are charged at Nashville by only one defendant, and by that defendant to only four of the points mentioned in the complaint. The controlling conditions of competition at each of those four points are found to be such as to relieve defendant from the charge of violating the long and short haul section of the act.

Jordan Stokes for complainant and interveners.

W. G. Dearing for Louisville & Nashville Railroad Company. Sidney F. Andrews for Nashville, Chattanooga & St. Louis Railway Company.

F. C. Dillard for Southern Pacific Company.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant corporation is a wholesale grocery company at Nashville, Tenn., and makes carload shipments of canned goods and of dried fruit, in boxes and in sacks, from Pacific coast terminals to Nashville

run.

over the lines of the defendant carriers, as their various routes may The interveners are wholesale grocers and merchandise brokers who join with complainant in the request for relief. Only one witness appeared for complainant, and but one, a merchandise broker, gave testimony in behalf of interveners, and, while both complainant and interveners requested oral argument, neither appeared therefor. The rates of defendants which are here brought in issue are, from Pacific coast terminals to Nashville, in cents per 100 pounds in carloads, as follows: Canned goods, 89; dried fruit in boxes, 116; dried fruit in sacks, 136.

Complainant and interveners assert that these rates are unjust and unreasonable and unjustly discriminatory against Nashville, as compared with the rates on the same commodities from Pacific coast terminals to Milan, Humboldt, and Jackson, Tenn.; Cincinnati, Ohio; Louisville, Owensboro, Elizabethtown, Henderson, Paducah, and Hopkinsville, Ky., and Evansville, Ind., which are, in cents per 100 pounds in carloads, as follows: Canned goods, 75; dried fruit in boxes, 100; dried fruit in sacks, 120.

Complainant also alleges that these rates unduly prefer the points last named to the unreasonable disadvantage of Nashville, complainant and interveners; and that defendants violate the fourth section of the act to regulate commerce in carrying said commodities through Nashville to some of the points last named at lower rates, the haul being via the same line in the same direction to farther distant points. Complainant prays that the rates to these last-named points be also applied to Nashville.

The rates to Nashville and to the other points mentioned are published in Trans-Continental Eastbound Tariff 3-E, I. C. C. No. 318 and supplements thereto, and in accordance with the established policy of the transcontinental lines apply from the points of origin to different group or blanketed territories or to basing points. Every point within a group or under a blanket takes the same rate, or where the rate applies to a basing point it is by special provision made applicable to other specified points. The rates last named from Pacific coast terminals apply alike to Missouri River common points, Mississippi River common points, Chicago and common points, Cincinnati-Detroit and common points, Pittsburg-Buffalo and common points, New York and Boston and common points. Points between any of these groups take higher rates than points within the groups named, and such rates, generally speaking, are fixed at amounts that do not permit points enjoying the group rate to get into that intermediate territory by a combination of the through rate in and local out on equality with the rate fixed at the intermediate point.

On the commodities mentioned the group rating has not been applied to the territory lying east of the Mississippi River and south of the Ohio River, because the lines operating in that territory have never consented to such application of the rates. This condition undoubtedly exists because the carriers serving this southeastern territory do not originate much traffic destined to the Pacific coast, and therefore they do not have the same opportunity to make reciprocal arrangements with the transcontinental lines on westbound business that is possessed by the carriers operating east of Chicago and north of the Ohio River. The rates from Pacific coast terminals to southeastern common points territory are made up of the rates to the Mississippi River common points territory plus the locals from the Mississippi River crossing nearest the point of destination, or of the rates to Cincinnati, Detroit, and common points plus the locals from the Ohio River crossing nearest the destination. The through rates on these commodities to Nashville are therefore the rates from Pacific coast terminals to Columbus, Ky., plus the locals from Columbus to Nashville. The locals from Columbus were: On canned goods 14 cents per 100 pounds and on dried fruit in boxes or sacks 16 cents, and they are alleged to be influenced by water competition via the Cumberland River. However, on March 1, 1908, those rates were advanced to 16 cents per 100 pounds on canned goods and 18 cents per 100 pounds on certain specified dried fruits in boxes or in sacks, straight or mixed carloads.

The rates to the Ohio River crossings herein mentioned make through East St. Louis or Cairo; and to Nashville, through Columbus, because the short line mileage to the destinations named is through those crossings.

Milan, Humboldt, and Jackson, Tenn., and Elizabethtown and Hopkinsville, Ky., are not in Mississippi River common points territory nor in Cincinnati-Detroit common points territory; but they are given the same rates on these commodities that apply to those territories. Nashville is in neither of the territories named.

Complainant offered no proof as to the unreasonableness of the rates in controversy except by way of comparison with the rates to the other points specified, and we can not find that the rates are unjust or unreasonable in and of themselves.

The real contention seems to be that the application of the Mississippi River common points rate or of the Cincinnati-Detroit and common points rate to points that are not within the territories covered by those group rates unjustly discriminates against Nashville, and that the haul through Nashville to the points hereinafter mentioned at lower rates, constitutes a violation of the fourth section of the act to regulate commerce.

It appears from the record that Nashville has a large territory in which to distribute its goods. The through carload rate on any of the commodities covered by this complaint from points of origin to any of the points to which the rate is lower than to Nashville, plus the local carload rate from that point, will permit a dealer therein to get within 30 miles of Nashville, from either the north or the west, on an equality of rate with Nashville. On a combination of through carload rates in, and less than carload rates out, the rates from such point and from Nashville equalize at something over 50 miles either north or west from Nashville. It is true that the carload rates in, to any of those points, plus the locals out permit dealers there to get nearer to Nashville than dealers in Nashville can get to such other points, but that is largely because the shipments from Nashville in the direction of those points involves a back haul. On the other hand, the present rate adjustment permits Nashville to distribute its goods much nearer to Decatur, Birmingham, Chattanooga, and Atlanta than those points can get to Nashville, and it is likewise protected against a back-haul rate that would equalize that advantage.

From the record we are unable to say that the adjustment at the other points compared with Nashville produces undue preference or unjust discrimination. The points farther north and farther west, being nearer the points of origin, would naturally have some advantage; but that is not undue.

The complainant insists, however, that Nashville should be given the Cincinnati-Detroit common points rate because it applies to Milan, Humboldt, and Jackson, Tenn., Nortonville, Elizabethtown, and Hopkinsville, Ky. The first four of these points are on the line of the Illinois Central running from New Orleans to Evansville. Elizabethtown is on the line of the Illinois Central from New Orleans to Louisville, and Hopkinsville is on a branch line of the Illinois Central running from Gracey, Ky. Until the Illinois Central acquired the Tennessee Central, running from Nashville to Hopkinsville, its lines did not reach Nashville. It appears from the record that the Illinois Central has adopted, as a policy, a literal compliance with the fourth section of the act in that it applies to intermediate points no higher rates than it applies to farther distant basing points on its line. The rates to the Ohio River crossings hereinbefore mentioned being governed by the lines reaching them through Cairo or East St. Louis, the Illinois Central, in hauling traffic from the same points of origin that moves via New Orleans, must meet the rates of the other lines at the Ohio River crossings. In doing this it transports property through all of the points last above mentioned except Hopkinsville and Nashville. Hopkinsville takes the Ohio River rate; Nashville does not. The application of this rate to Hopkinsville was made long before the 13 I. C. C. Rep.

Illinois Central's line reached Nashville, and it gave Hopkinsville that rate, undoubtedly, because it gave it to Gracey, which is the junction point of the Hopkinsville branch.

The only points mentioned in the complaint, to which this traffic is moved through Nashville, are Louisville, Elizabethtown, Evansville, and Hopkinsville, and the transportation in each case is by the Louisville & Nashville Railroad. Elizabethtown is on the line to Louisville and Hopkinsville on the line to Evansville. The Louisville & Nashville Railroad has not seen fit to adopt the policy of the Illinois Central in regard to applying basing points rates to intermediate points, except in cases where the circumstances and conditions surrounding the same are substantially similar, and while it transports these commodities through Nashville and to the points named at lower rates, it has not applied those rates to Nashville, on the ground that the circumstances and conditions at the farther distant points are substantially dissimilar from those at Nashville.

The record clearly shows that the circumstances and conditions surrounding Nashville and the Ohio River crossings and Mississippi River common points are substantially dissimilar. It indicates that by reason of the location of the latter, the fact that the short line mileage from Pacific coast terminals is to those points, and that the rate from said terminals makes via that mileage, Nashville would not be entitled to those rates as a matter of right in the making of an original adjustment of rates from those terminals. And further, the Louisville & Nashville Railroad in accepting this traffic at New Orleans is obliged to haul to the Ohio River at the rates fixed by the routes moving through Cairo or East St. Louis, which is another competitive condition that does not obtain at Nashville. Complainant is entitled to those rates only in the event that there is a violation of section 4 of the act in hauling through Nashville to points below the Ohio River where the circumstances and conditions are substantially similar to those at Nashville. The record discloses but two points outside of the boundaries of the territories referred to that take those rates to which the transportation passes through Nashville, and those are Elizabethtown and Hopkinsville, Ky. Elizabethtown is a junction point of the Louisville & Nashville and the Illinois Central railroads, a short distance from Louisville. The Ilinois Central gave Elizabethtown the Louisville rate, and the Louisville & Nashville met that rate.

Hopkinsville is a junction point of the Illinois Central and the Louisville & Nashville railroads, on the latter's line to Evansville. The Illinois Central gave Hopkinsville the Ohio River rate, and in October, 1906, the Louisville & Nashville met the competitive rate of the Illinois. Central, so that a condition of competition in these rates obtains at Elizabethtown and Hopkinsville which does not prevail at Nashville.