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DISCRIMINATION IN FURNISHING CARS.

ness.

Two cases were decided by the Commission on April 23 last, in which unlawful discrimination in furnishing cars was alleged by the complainant. They were brought by S. J. Hawkins, of Collins, Ohio—. one against the Lake Shore and Michigan Southern Railway Company and another against the Wheeling and Lake Erie Railroad Company (9 I. C. C. Rep., 207, 212). In the first it was found that the carrier discriminated against the complainant in favor of other shippers in furnishing cars at Collins, Ohio, ordered during the months of January and February, 1901, and in not furnishing cars for his shipments from Kipton, Ohio, which were ordered in August and September, 1900, until the following December and January, while cars ordered by other shippers at Norwalk were provided with comparative prompt

This was held to be unlawful discrimination against the complainant and his traffic and against Kipton as a locality in favor of Norwalk; and it was also held that the complainant should have reparation for damages thereby sustained in the amount of $200.

In the other case it appeared that during the period between September 3, 1900, and March 6, 1901, the carrier distributed cars for the movement of traffic in such manner as to discriminate in marked degree against the complainant, who desired to ship freight from Hartland, Clarksfield, and Brighton, Ohio, noncompetitive stations, in favor of shippers at Norwalk, Obio, and other competitive stations. This was also held to be unlawful discrimination against the complainant, his traffic, and such noncompetitive stations in favor of the competitive stations, shippers therefrom and traffic there originating, and reparation in the amount of $100 was awarded to the complainant. The decision in each case was obeyed.

CIVIL CASES PENDING IN THE COURTS.

Brewer et al. v. Louisville & Nashville Railroad Company et al. Griffin, Ga., long and short haul case. United States circuit court, southern district of Georgia.

Interstate Commerce Commission v. Northern Pacific Railroad Company et al. Fargo, N. Dak., long and short haul case. United States circuit court, district of North Dakota.

Interstate Commerce Commission v. Western New York & Pennsylvania Railroad Company et al. Discriminating rates on petroleum oil. United States circuit court, western district of Pennsylvania.

Interstate Commerce Commission v. Nashville, Chattanooga & St. Louis Railway Company et al. Hampton, long and short haul case. United States circuit court of appeals, fifth circuit.

Interstate Commerce Commission v. Southern Pacific Company et al. Kearney long and short haul case. United States circuit court, northern district of California.

Interstate Commerce Commission v. Louisville and Nashville Railroad Company et al. La Grange, Ga., long and short haul case. United States Supreme Court.

Interstate Commerce Commission v. Southern Railway Company. Danville long and short haul case. Circuit court of appeals, fourth circuit.

Interstate Commerce Commission v. Cincinnati, Portsmouth and Virginia Railroad Company et al. Wilmington, N. C., long and short haul case.

United States circuit court for the eastern district of North Carolina.

Interstate Commerce Commission v. Southern Pacific Company et al. California orange case.

United States circuit court, southern division of the southern district of California.

Interstate Commerce Commission v. Louisville and Nashville Railroad Company. Tifton, Ga., long and short heul case. United States circuit court, eastern division of the southern district of Georgia.

To these should be added the injunction proceedings mentioned in another part of this report.

CRIMINAL PROCEEDINGS.

On March 14, 1902, an indictment was returned in the district court of the United States for the western district of Kentucky charging the Louisville and Nashville Railroad Company with failure to file tariffs with the Commission as required by section 6 of the act. This case is set for trial at the March term, 1903.

In the western district of Tennessee indictments were found on May 28, 1902, against the Illinois Central Railroad Company, the Southern Railway Company, the St. Louis and San Francisco Railroad Company, the Louisville and Nashville Railroad Company, the St. Louis, Iron Mountain and Southern Railway Company, the Nashville, Chattanooga and St. Louis Railway Company, and also against J. T. Harahan, second vice-president, T. J. Hudson, traffic manager, and F. B. Bowes, general freight agent of the Illinois Central Railroad Company; W. W. Finley, second vice-president Southern Railway Company; B. L. Winchell, vice-president and general manager of the St. Louis and San Francisco Railroad Company; C. B. Compton, traffic manager, and D. M. Goodwyn, general freight agent of the Louisville and Nashville Railroad Company; and Horace F. Smith, traffic manager of the Nashville, Chattanooga and St. Louis Railway Company, for pooling cotton shipped from Memphis to various interstate destinations.

Indictments are also pending in the northern district of Georgia against the Western and Atlantic Railroad Company, the Atlanta and West Point Railroad Company, the Southern Railway Company, the Georgia Railroad and Banking Company, the Seaboard Air Line Railway Company, and W. H. Pleasants, traffic manager, and C. R. Capps, general freight agent, of the Seaboard Air Line Railway Company; Horace F. Smith, traffic manager, and J. A. Sams, division freight agent, of the Western and Atlantic Railroad Company; C. A. Wickersham, general manager, and R. E. Lutz, traffic manager, of the Atlanta and West Point Railroad Company; W. W. Finley, second vice-president, and E. A. Niel, general freight agent, of the Southern Railway Company; T. K. Scott, general manager, and A. G. Jackson, general freight agent, of the Georgia Railroad and Banking Company; and Samuel F. Parrott, for pooling cotton shipped from Atlanta to various destinations.

On September 4, 1902, the grand jury for the district of Minnesota returned an indictment against Henry F. Whitcomb, president, and Burton Johnson, general freight agent, of the Wisconsin Central Railway Company; William R. Burt, president, and W. H. Bennett, general freight agent, of the Ann Arbor Railroad Company, for carrying traffic at rates less than those specified in tariffs filed with the Commission under the provisions of section 6 of the act.

COURT DECISIONS.

Four court decisions have been rendered during the year in cases involving enforcement of orders of the Commission. One of these cases, known as the Chicago Live Stock Terminal Rate case, was decided by the United States Supreme Court, and the other three, the Danville (Va.) and Hampton (Fla.) Long and Short Haul cases, and the Savannah (Ga.) Naval Stores and Cotton case, by United States Circuit Courts.

THE CHICAGO LIVE STOCK TERMINAL RATE CASE.

The Commission held in the case of Cattle Raisers' Association of Texas et al. v. Chicago, Burlington and Quincy Railroad Company et al. (71. C. C. Rep., 513) that a terminal charge of $2 per car for delivering live stock to the Union Stock Yards in that city was unlawful under sections 1 and 3 of the act to regulate commerce, and recommended that the carriers delivering live stock in Chicago should not exceed a charge of $1 per car for such service. A petition by the Commission to enforce the order was dismissed by the United States circuit court for the northern district of Illinois, and the circuit court of appeals subsequently affirmed the judgment of the circuit court. The decisions of the circuit court and circuit court of appeals in this case were discussed in our Thirteenth and Fourteenth Annual Reports. An appeal was taken to the United States Supreme Court, and the decision of that court was rendered on June 2 of the present year (186 U. S., 320).

As to the action of the carriers in providing a separate terminal charge for delivery to the stock yards, the court said:

As the right of the defendant carriers to divide their rates, and thus to make a distinct charge from the point of shipment to Chicago and a separate terminal charge for delivery to the stock yards, a point beyond the lines of the respective carriers, was conceded by the Commission, and was upheld by the circuit court of appeals, no contention on this subject arises. If, despite this concurrence of opinion, controversy was presented on the subject, we see no reason to doubt, under the facts of this case, the correctness of the rule as to the right to divide the rate admitted by the Commission and announced by the court below. This is especially the case, in view of the sixth section of the act to regulate commerce, wherein it is provided that the schedules of rates to be filed by carriers shall “state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges.” Whether the rule which we approve as applied to the facts in this case would be applicable to terminal services by a carrier on his own line, which he was obliged to perform as a necessary incident of his contract to carry, and the performance of which was demanded of him by the shipper, is a question which does not arise on this record, and as to which we are therefore called upon to express no opinion.

The court then proceeded to consider whether there was a separation of the charge for carriage and the charge for the terminal services, and whether the rate-separated or aggregated, as might be found to be the case—was just and reasonable. To determine these questions it was essential, the court said, to fix the situation prior to June, 1894, at which time the terminal charge was first imposed. It was found that prior to that date there was no such separation, and that the carriers, under their contracts to carry to Chicago, delivered car loads of cattle to the stock yards without making any charge other than that which was specified in the through rate. The court held that the through rate existing prior to June 1, 1894, must be presumed to have provided in and of itself compensation for the services rendered in making delivery at the stock yards. That being the case, the court holds that there was no segregation of the terminal charge from the through rate, thus making one distinct terminal charge and another distinct through rate, and said:

This is the convincing result, since the schedules did not purport to draw out from the previous through rate the sum of compensation contained therein for terminal services. On the contrary, the entire previous through rate was retained, memorandum was placed upon the schedules to the effect that thereafter an additional charge of $2 for delivery at the stock yards would be exacted. This was a mere addition to the sum of the terminal charge embraced in the prior through rate. We think that it can not be said that to add an additional amount to a former charge was necessarily to divide such former charge without holding that to add one sum to another is necess

essarily to divide the other. The court also holds that it is the purpose of the sixth section of the act to regulate commerce, in compelling the schedules to be so drawn

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as to plainly inform of their import is to exact that when the rates are changed the change shall be so stated as not to mislead and confuse, all of which would be frustrated if the schedules relied upon were given the effect which the defendants claim for them.

The court then proceeded to determine whether the additional charge of $2 was just and reasonable, and said that it needs no reasoning to demonstrate that the Commission correctly held that the mere imposition by the Stock Yards Company of a new burden upon the railroads, averaging $1 per car, did not justify an additional charge by the railroad companies of $2 per car, and that it was likewise equally plain that if the prior rate was just and reasonable, as the Commission found it to be, that the addition, without reason, of $2 per car, caused the rate to become unjust and unreasonable to the extent of the extra dollar. The court further said it follows that the order of the Commission was right if its correctness depends upon considerations previously stated, but that such was not the case.

Here the court quoted a finding in the first report of the Commission in this case to the effect that about October 1, 1896, the through rate from points embraced in the territory covered by the complaint to all Western markets, including Chicago, had been reduced 5 cents per 100 pounds, and that this would amount to from $10 to $15 per car. In other words, said the court, it was held that the rate, which was unjust and unreasonable solely because of the $1 excess, continued to be unjust and unreasonable after this rate had been reduced by from $10 to $15. The court then considered a statement made by the Commission in its opinion delivered on the reargument of the case, which new finding or statement by the Commission refers to the reduction in the through rate on October 1, 1896, but says that such reduction did not, however, apply to all the territory to which the terminal charge applies, but only to certain limited portions of that territory, and that the

purpose of it was to equalize the rate from those sections as compared with other sections.

Upon this point the court said: It is apparent that there is an irreconcilable conflict between the statement thus made and the facts as recited by the Commission in its first report, for therein it was declared that the reduction applied “to live stock from points embraced in the territory covered by this complaint to all Western markets, including Chicago.” The report deduced from this premise of fact the conclusion that if the through rate. could be considered “all ground of complaint has been removed” by the reduction. We find it in reason difficult to treat the statements made after the reargument as substantive findings of fact, overthrowing the facts stated in the first report.

The reason given for this conclusion was that in the report of the Commission after reargument it was declared that the previous findings are modified to the extent necessary to make it clearly appear that the terminal rate of $2 independently considered had been found unquestionably to be reasonable, and that there is no expression in the

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