ants after being assigned for hearing at Chicago. Counsel asserted they did not deem the petition sufficient, and moved a dismissal of this proceeding to the end that a new one may be instituted.

A case involving excessive rates on crude or fuel petroleum oil from Pecos and Amarillo, Tex., to Roswell, N. Mex., was settled by the carriers adjusting the rates to the satisfaction of complainant.

Another case arising at Seattle, Wash., involving rates on lumber and shingles from Minnesota Transfer to St. Louis, Mo., and relative rates on lumber and shingles from same point of shipment to Chicago, was likewise settled by the carrier reducing the rate to the satisfaction of complainants.

A case originating at Collins, Ohio, in which it is alleged that discriminating rates are enforced on carload shipments of dressed poultry from points in Ohio to Boston and Springfield, Mass. Evidence in this case was taken at Cleveland, Ohio, in April and October of last year, and it was finally submitted, but the case was dismissed on motion of the complainant.

In addition to the foregoing, a case involving an unreasonable storage charge at Columbia, S. C., on ten barrels of molasses shipped from New Orleans, was dismissed because the proper carrier had not been made a defendant. A proceeding was instituted.

DECISIONS OF THE COMMISSION.

Many important questions arising in contested cases have been decided during the year. The questions so decided by the Commission are summarized as follows:

DENYING SHIPPERS THEIR CHOICE OF ESTABLISHED ROUTES.

Two cases, one brought by the Southern California Fruit Exchange and the other by the Consolidated Forwarding Company, against the Southern Pacific and Atchison, Topeka and Santa Fe systems, known as the "Orange Routing Cases," were decided by the Commission on April 19 last (9 I. C. C. Rep., 182). The important question disposed of in this decision was whether initial carriers can lawfully reserve to themselves the routing of shipments and deny the shipper his choice of established routes. The Southern Pacific and Atchison, Topeka and Santa Fe systems are initial carriers of oranges shipped from southern California to eastern destinations, and, in connection with numerous other carriers, have formed through routes and fixed joint through rates for the carriage of oranges, lemons, and other citrus fruits grown in southern California and forwarded to consignees in other States. It is possible under such arrangements for through carriage over connecting lines to send traffic from California over different routes to practically all points on and east of the Missouri River and also to many destinations west of that river. The defendant initial carriers have in

effect a common tariff on citrus fruits from southern California shipping points to the Missouri River and points east thereof which fixes a single or blanket rate of $1.25 per 100 pounds, and names 183 participating roads. Thirty-one carriers in southeastern common-point territory are also named in connection with a note referring to another tariff for application of rates to points in that territory. Prior to about January 1, 1900, the complainants and other shippers in southern California were permitted by the initial carriers to select the routes over which their shipments should be carried to eastern destinations, but since that time each of these initial carriers has enforced a rule whereby it reserves to itself the routing of all shipments of citrus fruits destined beyond its own terminals. Such action on the part of the defendant carriers was claimed to be unlawful by the complainants in these proceedings.

At common law carriers are required to follow the instructions and directions given by shippers whenever practicable, but the defendants' contention in these cases was that joint through routes and rates are made by agreement between connecting carriers, and that such routes and rates are to be regarded as open to the public only upon such conditions as may be specified under the agreement; and they pointed out that upon the traffic under consideration the through rate was guaranteed only upon condition that the routing should be absolutely and unqualifiedly in the control of the initial carrier. The decision of the Commission was as follows:

Joint through routes and rates are ordinarily the subject of agreement between the participating carriers; but when they have been established, and until finally abrogated or changed, they are required by the statute to be kept open to public use.

Under section 6 of the act two kinds or classes of routes are recognized and provided for, namely, the line of a single carrier, and a continuous line or route operated by more than one carrier, where the participating carriers establish joint tariffs of rates or fares or charges for such continuous line or route; and in respect of both classes of lines or routes the provision is uniform that established rates shall not be increased except after ten days' notice, nor reduced except after three days' notice.

In the matter of rates for these classes of lines or routes the provisions of the law differ in no respect except one, and that is merely that the Commission may prescribe the measure of publicity which the carriers shall be required to give of their rates and fares on such continuous lines or routes, while as to the other class such requirement is specified in the law itself. Such exception does not go to the form, substance, maintenance, or application of the rates in any degree whatsoever; and the Commission has, by order duly made March 23, 1889, prescribed that carriers by such continuous lines or routes shall pub

lish their joint rates in the same manner as separate or individual ́ roads are required by law to do.

Under the practice of defendants as initial carriers in joint continuous routes of reserving to themselves exclusive control of the routing and denying to shippers any choice or control in a selection as between different established routes, a route or tariff may be available to one shipper but not to another and open one minute to a shipper but closed the next; this to be determined by the carriers' agents according as they may desire to distribute the shipper's business among one another from time to time or for any reason whatsoever. This practice of defendants whereby shippers are denied the use of their transportation facilities by established routes is in violation of the statute, and, in its application by the defendants to the traffic in question, subjects the owners and shippers thereof to undue, unjust, and unreasonable prejudice and disadvantage, and gives to the carriers undue and unreasonable preference and advantage.

The effect of the application of the rule was further discussed by the Commission in its decision as follows:

The Commission has permitted a practice whereby an initial carrier may publish and file schedules of joint through rates over such through routes as it may designate therein, naming as parties to the same such and as many consenting connecting carriers as it may choose whose roads could form part or parts of any one or more of such through routes. Each of the many and varying practical through routes under such a schedule is, however, as separate and distinct as if it were the only one. Each is, in its entirety, without discrimination, in every instance equally as available under the law to every shipper as to the initial carrier. If it were otherwise, this method of forming and notifying by one tariff schedule many continuous through routes, which has been sanctioned largely at the instance of the carriers and for their convenience and economy, could be perverted to the overthrow of one of the highest aims of the law-equality among all shippers. A wide field would be laid open for rank discrimination and gross injustice. The law requires the establishment and publication of rates on all routes. Therefore there can be no through route without through rates thereon. Such rates may be the combination or sum of the local or separate rates of the several roads forming the through line, or they may be, and usually are, as in this case, less. So long as the through route exists the rates established thereon are guaranteed by command of the law itself to every shipper without discrimination, and no greater guaranty can be given by the initial carrier, as is insisted by the defendants in these cases as a basis for the claim of the exclusive control of routing by the initial carrier.

The very essence of the continuous joint line authorized by law is its availability to shippers for through transportation. The law pro

vides for no such thing as a conditional route; neither can there be conditional routes constructed upon a condition such as is attempted to be enforced in these cases without promoting the very thing which the law was intended to prevent-undue and unreasonable discrimination.

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In view of the terms and objects of the law, the use and function of transportation lines, and established rates thereon, it is a contradiction say that schedules filed as in these cases create on the one hand through continuous lines, each and all open at all times to the initial carrier, but none of which is at any time open or available to the shipper except in the varying discretion of such carrier. To what end is it sought to give the initial carriers of this traffic exclusive, continuing control thereof to destination in defiance of the wishes and instructions of the owner and shipper of the property? The chief reason assigned by the defendants appears to be that it diminishes opportunity for successful arrangements between the shippers on the one hand and carriers and refrigerator car companies on the other for rebates. It does appear that after the control of all routing was taken over by the defendants and away from the shippers, the practice of paying rebates practically ceased. This, however, is not all. It further appears that a tonnage pool of this traffic as between the connecting carriers not defendants was established and that the defendants so control the routing as to give specific percentages of this traffic to their several connections, thereby fulfilling and giving effect to this unlawful and forbidden arrangement.

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Reason is found in the facts shown for the belief that the sion of the practice of allowing rebates was only an incidental result and was not the primary or principal object of the defendant carriers in taking over to themselves control of the routing beyond their respective roads, but that the object was to give effect to the tonnage division before stated between their connections. The testimony shows that the rebates had not been paid or borne by these defendants, but largely by the owners of the refrigerator cars in which the fruit was shipped, and in part by Eastern connections. It is strongly significant also that in respect alone of this freight (the only traffic shown to be covered by the tonnage division arrangement and none other in the whole range of varied commodities and classes of traffic) do the defendants assume to dictate its movement beyond their own roads, as between the established continuous lines. It seems an indefensible proposition that a vital right of the shipper shall be sacrificed and violation of one important provision of the statute shall be fostered, in order to induce obedience to another. The use of the shipper's property in this manner and to this end is as if it were seized upon, marshaled, and maneuvered by the initial carriers for distribution among connections for their own advantage and to satisfy such con

nections, and thereby hold up rates by unlawful methods regardless of the rights of the owners of the property handled and used for these purposes. The carrier is a bailee of the property which is in its custody for the purpose of transportation only, and it can not lawfully wrest from the owner that general control and direction of the same which is deemed by him needful for the prudent protection of his own property and interests and not inconsistent with the due performance of the service undertaken by the carrier.

Moreover, in respect of this traffic, shippers are required to release the carriers from liability for damage by the weather, decay, shortage, and delay. They are also required to prepay or guarantee freight charges to destination. So that the carriers are relieved of the care and risk on this property as to their customary lien on freight for the collection of their charges, which, on shipments of this traffic, must be paid whether the goods bring a sufficient amount for that purpose or not. Neither does the initial carrier assume liability for damage resulting from the negligence of any connecting line. Hence, for such damage the shipper must seek recovery from such connecting carriers in distant States. One of the reasons frequently advanced against the compulsory formation of through routes by carriers is that they might thereby be forced to make traffic arrangements and interchange freight with insolvent connections; yet in the present cases the shipper may, under the rule in question, be compelled to seek recovery of damages from an insolvent connecting carrier over whose road his traffic has been routed contrary to his express direction, or one that does not promptly or fairly adjust damage claims. His property may be shipped over a line composed of several short roads, whereas he may desire, and it might be to his substantial benefit, that the same should move over a through line composed of one or two roads, the management and service of which are efficient and satisfactory.

Another deprivation of right generally supposed to be vested in the shipper is found in these cases in the inability of the shipper to divert his freight in transitu to a point where the market conditions become favorable after transportation of the shipment commences. If the new destination is not upon the route substituted by the carrier for the route designated by the consignor, the shipper can not avail himself of its advantages. Under these various conditions the shipper is practically stripped of all protection and put to commercial disadvantage.

It is not a sufficient excuse for the practice under discussion to say that the first carrier's control of the routing beyond its rails must be so exercised as not to unduly discriminate. The granting of a given routing to one and denial of the same to another is itself an unjust discrimination. If injury or damage result in such a case, where is the remedy if the carrier acted within its lawful discretion? The