REHEARING.-Continued. Rice, Robinson & Witherop v. Western New York and Pennsyl vania Railroad Company. A petition to reopen a case that has been decided and have a rehearing, should show prima facie that some material testimony has been overlooked or misapprehended, or some error in the findings of fact or conclusions of law. Myers, survivor, v. Pennsylvania Company et al. When the application is insufficient in these respects, and only asks for a rediscussion of the facts and law already considered, with no offer of new evidence that can change the result, the application will be denied. (lb.) SUBPOENAS FOR PRODUCTION OF BOOKS, PAPERS, AND DOCUMENTS.-Rules governing application for. Rice v. Cincinnati, Washington and Baltimore Railroad Company et al., in re Application of Petitioner. When application for, will be denied. Haddock v. Delaware, Lackawanna and Western Railroad Company. ABANDONMENT OF TARIFF.-Where a tariff complained of is abandoned by the carriers for a long period of time before the complaint was made and shortly after the tariff was put in force, the Commission will not make an order requiring the carriers to cease and desist from enforcing such tariff, because such an order would be vain and useless. Rawson v. Newport News and Mississippi Valley Company et al. REPLICATION.-The rules of practice before the Commission do not require nor allow the filing of a replication. Oregon Short Line v. Northern Pacific Railroad Company. CONCESSION OF RATES BEFORE DECISION TERMINATES THE CONTROVERSY. Bishop v. Duval, receiver, etc. Harris v. Duval, receiver, etc. Lincoln Board of Trade v. Union Pacific Railway Company et al. and St. Louis Railway Company. Chicago, St. Louis and Pittsburg Railroad Company v. Louis- American Wire Nail Company v. Cincinnati, New Orleans and REPARATION IN PENDING PROCEEDING.-The amendment of March 2, 1889, expressly provides that it shall have no application to pending proceedings, and as this proceeding was pending at the time, no reparation can be awarded, and the remedy of the petitioner is in the court. Rawson v. Newport News and Mississippi Valley Company et al. AMENDED RULES AND FORMS. Third Annual Report of Interstate Commerce Commission. COMPLAINT, WHEN INSUFFICIENT.-When a complaint charged that the respondent railroad companies, which were common carriers subject to the act to regulate commerce, were accustomed to make deductions of from five to ten pounds of wheat per load from the true weight when delivered by the farmer to the buyer at the elevators of the respondents, and gave receipt to the farmer for the amount as thus diminished, upon which the latter was paid by the buyer, thereby suffering a loss to the extent of such reduction, but failed to charge that the wheat was delivered for interstate transportation, or, indeed, for transportation anywhere, it was held, that the complaint was insufficient in substance to COMPLAINT, WHEN INSUFFICIENT.-Continued. show violation of the act to regulate commerce, and that the respondents were entitled to have it dismissed on their motions to that effect, but that the dismissal should be without prejudice. White . Michigan Central Railroad Company et al. An averment that the respondents were interstate commerce carriers subject to the act to regulate commerce was not of itself sufficient to warrant an inference under a motion to dismiss a complaint for insufficiency, that wheat delivered at an elevator of the respondents was for interstate commerce. (Ib.) WHEN NECESSARY PARTIES WILL BE BROUGHT IN.—(Ib.) CASES INVOLVING CLASSIFICATION AND RATES.-Whether a complaint in re'gard to classification and rates is formal or informal, it is not enough that it be made against a classification committee or a rate committee concerning grievances alleged to be perpetrated by earriers. The Commission will not proceed in any investigation until the complaint is put into such shape that localities and dealers as well as the carriers complained of, who should be named, can have an opportunity to be heard. McMillan & Co. v. The Western Classification Committee. CONTRACTS PRIOR TO PASSAGE OF ACT.-Upon complaint of unreasonable rate, on coal from Pennsylvania mines east to Hoboken and north and west to Buffalo and other points, and that the carrier gives to itself as a shipper of coal undue preference and advantage, the defendant relied upon certain contracts between itself and complainant, which were entered into before the enactment of the act to regulate commerce, as controlling the charges to complainant and as precluding the jurisdiction of the Commission in the premises. No claim is made that the validity of these contracts has been impaired or affected by the passage of the act, and the Commission carefully abstains from expressing any opinion on that point. Held, That complainant is precluded, by the terms of the contract for shipping coal to Hoboken, from going into evidence to show that the rate on his coal to Hoboken ought to be different from that fixed by the contract; and witnesses and evidence asked for to that end are immaterial. Haddock v. Delaware, Lackawanna and Western Railroad Company. The contracts providing that complainant may ship coal to points north and west, on the same terms and rates that respondent for the time being gives other persons, do not preclude complainant from showing that such rates are unjust, oppressive, or unreasonable. Complainant is therefore entitled to a hearing upon that question. (Ib.) COMPLAINT, WHEN SUFFICENT UNDER FOURTH SECTION San Bernardino Board of Trade v. Atchison, Topeka and Santa King & Co. v. New York, New Haven and Hartford Railroad NOTICE OF HEARING. TESTIMONY.-REGULARITY OF PROCEEDING.-The Commission having entered upon inquiry and investigation as to the reasonableness of transportation rates on food products, and given notice of the time and place of taking testimony, and afforded opportunity for calling and cross-examination of witnesses. Held, That such proceeding was a substantial compliance with the statute. In re Alleged Excessive Freight Rates and Charges on Food ABSENCE OF NECESSARY PARTIES.-Effect on decision. Poughkeepsie Iron Company v. New York Central and Hudson McMillan and Company v. Western Classification Committee. INTERESTED PARTIES ENTITLED TO BE HEARD.-(16.) Rice v. Atchison, Topeka and Santa Fé Railroad Company et al. AMENDMENT OF COMPLAINT AFTER DEMURRER. Çapehart et al. v. Louisville and Nashville Railroad Company et al. REHEARING.-Former order vacated. Bates v. Pennsylvania Railroad Company et al. PETITION FOR REHEARING.—A petition or motion for rehearing can not be granted on mere allegation of error in the findings of fact, and such a petition or motion must be supported by proof showing prima facie at least that there was such error. The affidavits in this case fail to make such showing. Proctor & Gamble v. Cincinnati, Hamilton and Dayton Railroad SUBPOENAS duces tecum.-ORAL AND DOCUMENTARY EVIDENCE.-THIRD PARTIES.-The application for subpoenas duces tecum is denied. As applicable to contracts and papers of third persons, not before the Commission, it is denied on the ground of the injustice that might be done such persons; and generally (for the present at least) it is denied on the ground that the material facts can be proven by the testimony of witnesses, without the aid of documentary evidence; although respondent will be expected to produce for purposes of examination, any books and papers of its own, material to the controversy. (lb.) PRODUCTION OF DOCUMENTARY EVIDENCE UNDER ACT TO REGULATE COMMERCE AS AMENDED. ATTENDANCE OF WITNESSES. Amendment of act to regulate commerce. CONCESSION OF RELIEF.— New York Board of Trade and Transportation et al. v. Pennsylva- New Orleans Cotton Exchange v. Louisville, New Orleans and ORDER TO SHOW CAUSE AFTER DECISION TO INTERESTED CARRIERS NOT PAR- Hamilton & Brown v. Chattanooga, Rome and Columbus Railroad Company et al. ORDER OF REPARATION.—Where a carrier corrects the inequality of rates complained of, and thus makes all the reparation asked in the complaint, or that the Commission could afford, no order is required and none will be issued. New Orleans Cotton Exchange v. Louisville, New Orleans and See Burden of Proof; Evidence ; Complaint; Complainant; Parties. WHEN COMPLAINANT, A STATE RAILROAD COMMISSION, HAS CEASED TO EXIST. 1. The act to regulate commerce makes it the duty of this Commission "to investigate any complaint forwarded by the Railroad Commissioner or Railroad Commission of any State or Territory at the request of such Commissioner or Commission." The complaint in this case was brought by and in the name of the Railroad Commission of Florida, but the real parties in interest are large classes of growers, buyers, and shippers in the State of Florida. Since the complaint was filed the nominal complainant has ceased to exist. Held, That the repeal of the law creating the Railroad Commission of Florida could not operate as a withdrawal or dismissal of the complaint, that Commission having been only an instrument for the transmission of the complaint to this Commission, and having fully performed that function before an end was put to its existence. To abate or dismiss the proceeding on that ground would be to sacrifice substance to form in contravention of the spirit and letter of the act to regulate commerce and of the rules of courts of law in analogous Held, further, That under the provision of the act to regulate commerce authorizing this Commission to "institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made," neither complaint nor complainant is necessary to confer jurisdiction. cases. Railroad Commission of Florida v. Savannah, Florida and West- See Amendments; Parties; Petition; Railroad Company; Parties; PREFERENCE OR ADVANTAGE. WHEN UNDUE AND UNREASONABLE.—Rates and charges not unreasonably high of themselves can be so adjusted in their relations to each other as to produce the undue preference and unreasonable advantage which the third section of the act to regulate commerce makes unlawful. Boards of Trades Union, etc., v. Chicago, Milwaukee and St. Raymond v. Chicago, Milwaukee and St. Paul Railway Company. Preference and advantage become undue and unreasonable when the results are such as to effect some tangible injury to the complaining parties. Howell et al. v. New York, Lake Erie and Western Railroad Company et al. MEASURE OF PROOF REQUIRED TO JUSTIFY.-When water competition is brought forward as a justification of preference and advantage, the same measure of proof is required to overcome the presumption that such distinctions are undue and unreasonable as is required to work an exception under section 4 of the act. Harwell v. Columbus and Western Railway Company. COLORED PEOPLE.-Colored people who buy first-class tickets must be furnished with accommodations equally safe and comfortable with other first-class passengers. A car furnished complainant found to be only second class in comforts for travel, and held that he was thereby subjected to undue preference and unreasonable disadvantage, in violation of section 3 of the act to regulate commerce. Councill v. Western and Atlantic Railroad Company. RAILROAD MATERIAL.-A producer of railroad material (e. g., ties) is entitled to sell it when he wishes in the best available market. Common carriers are forbidden to attempt to prevent this by applying disproportionate or unreasonable rates. Reynolds v. Western New York and Pennsylvania Railroad Company. IN SHIPMENT OF COAL.-The selection of either goods or customers is forbidden to common carriers. Less desirable traffic, which is ordinarily the subject of transportation and not dangerous to handle, must be accepted upon reasonable terms, as well as that which is more desirable. Riddle, Dean & Co. v. New York, Lake Erie and Western Railroad Company. GROUP RATES ON COAL.-Through rates by way of Chicago to points in western Wisconsin, Minnesota, and Dakota, from mines in the eastern part of a coal mining district extending across the State of Illinois are necessarily made the same with the group rates established on other routes from the same district, and their discontinuance would simply leave the market open to the product of other Illinois mines at the same transportation charged. Rend v. Chicago and North-Western Railway Company. Under the exceptional circumstances requiring such through rates, shippers locally from Chicago, of Ohio and Pennsylvania coal, can not justly insist upon rates no higher than the division of such through rate which appertains to the lines running northwest from that city, the circumstances under which the through rate is made being such that it can not be differently adjusted. (Ib.) Such a reduction of the rates on local shipments from Chicago would involve either a general reduction from the entire group under the shorthaul clause of the law, or adandonment by defendant of the through rates in question, neither of which would benefit complainant, while both would do great injury to all interested. Under such circumstances the preference is not undue nor is the advantage complained of unreasonable. (Ib.) On complaint of a group rate on coal from a district covering a radius of 40 miles around Pittsburg. Held, That the rate in itself not being unreasonable, it does not appear that it subjects the complainants to undue predjudice, although it gives an unreasonable preference to the more distant mines. Imperial Coal Company et al. v. Pittsburg and Lake Erie Railroad Company et al. Actual undue preference or advantage of which the rate was the cause must result to the more favorably situated producers to render a group rate unlawful. (Ib.) CONSIDERATIONS WHICH AFFECT THE QUESTION.-In determining the question of undue prejudice from a rate, distance is only one of the factors, and other material facts, such as character and quality of the commodity, cost of production, extent and nature of the competition in the business itself, and by other transportation lines, and the interest of the public in the use of the commodity and its marked cost, are to be considered. (Ib.) WHAT DOES NOT AFFECT THE QUESTION.-Municipal subscriptions or gratuities do not affect the question of undue preference under section 3 of the act to regulate commerce. Lincoln Board of Trade v. Burlington and Missouri River Railroad Company in Nebraska et al. |