IOI. The Akron Gravel and Sand Company, Complainant, versus The Cleveland, Akron and Columbus Railway Company, Defendant. March 23, 1911, complainant in this case, submitting the following acknowledgment of satisfaction, this case was dismissed. The complainant acknowledges satisfaction of the various matters set out in the complaint, in the correction of rates from the said city of Akron, Ohio, to the various points hereinafter named as follows: Akron to Hudson, thirty (30) cents per ton of 2,000 pounds. Akron to Mt. Vernon, fifty (50) cents per ton of 2,000 pounds. Akron to Columbus, sixty (60) cents per ton of 2,000 pounds. The said described corrected rates to be filed with the Commission and to become effective on the 28th day of March, 1911. Wherefore, complainant consents that its said complaint be dis missed. 102. The Akron Gravel and Sand Company, Complainant, versus The Baltimore and Ohio Railroad Company, The Erie Railroad Company, and The Cleveland, Akron and Columbus Railway Company, Defendants. Complaint Against Carrier. Decided June 2, 1911. John R. Horst, for Complainant; F. A. Durban, R. J. King, H. A. Taylor, T. H. Burgess, and Henderson, Livesay & Burr, for Defendants. Complainant is engaged in the production of screened and washed gravel and sand; its plant is located on the line of The Baltimore and Ohio Railroad Company just east of the city of Akron, Ohio. Complainant ships gravel and sand for construction purposes, loading cars on its private siding, which siding is connected with the tracks of The Baltimore and Ohio Railroad Company. For cause of complaint, complainant says that its private siding is directly connected with the tracks of said defendant, The Baltimore. and Ohio Railroad Company, but that it is not directly connected with the tracks of said other defendant companies, The Erie Railroad Company and The Cleveland, Akron and Columbus Railway Company; that the track of each of said defendant companies is so connected with the tracks of the other defendant companies within said city of Akron that they constitute a continuous line of track from complainant's said private siding to any and all points on the lines of each of said defendant companies, and that the said track connections of said defendant companies with the private sidetrack of complainant forms a continuous track within said city of Akron from complainant's private siding to each and all points on the tracks of all said defendant companies at which there has been and is located public team tracks for the loading and unloading of freight. That said defendant companies, The Erie Railroad Company and The Cleveland, Akron and Columbus Railway Company, have each, severally, located and constructed, and do now maintain, in the said. city of Akron, such public team tracks for the loading of freight in carloads by shippers not possessed of or controling private sidings; and that the complainant, in the prosecution of its said business of shipping gravel and sand, frequently has occasion to sell and ship its said products to such shippers, not possessed of or controling private sidings, for team track delivery in said city of Akron. The complainant further says that it has, at divers times, requested of the defendant companies, that reasonable rates be granted to it for the transportation of its said products from its said location. on the said The Baltimore and Ohio Railroad Company to purchasers for delivery in said city of Akron on the said public team tracks of the said The Erie Railroad Company and The Cleveland, Akron and Columbus Railway Company, respectively; but that the said named defendant companies have at all times refused to grant to the complainant any rate whatever for such team track delivery. And complainant further says that the said The Baltimore and Ohio Railroad Company has at all times refused to accept any shipment from complainant for team track delivery in said city of Akron, on said The Erie Railroad Company or the said The Cleveland, Akron and Columbus Railway Company; and that the said The Erie Railroad Company and the said The Cleveland, Akron and Columbus Railway Company have, at any and all times refused to accept from the said The Baltimore and Ohio Railroad Company any shipment of the said named products for public team track delivery on their said lines; and the said The Erie. Railroad Company and The Cleveland, Akron and Columbus Railway Company have refused and do now refuse to permit the complainant, or any purchaser from the complainant, to receive or unload said products on any of their public team tracks, respectively, in said city of Akron. Sections 8998 and 8999 of the General Code are appealed to by counsel of both complainant and defendants as having a bearing upon the issue. As a matter of actual fact, section 8998 refers to switching service, and section 8999 to transportation service. It is properly contended by defendants that a railroad should not be compelled to "throw open" its team tracks to connections. The law does not require it. Further, it would be contrary to public policy to require a railroad that has established expensive terminal facilities to allow other railroads the unrestricted use of them. If a railroad simply by building a connection with another road could demand the use of the terminals of that road, there would be no incentive whatever. to provide terminals; in fact, the result would be to discourage the construction of terminals, and consequently the patronage would suffer. But there arises at once the question: What is meant by the term "throw open" as applied to railroad terminals? This involves another question: What constitutes switching service as contrasted with transportation service? There appears to be confusion on this point. The language of tariffs is often inaccurate and misleading. The term "switching" is used in the tariff frequently when the rates named in the tariff are not switching rates at all, but are transportation rates. In sections 8998 and 9000 of the General Code, the word "switch" distinctly contemplates a car movement from or to a connection within switching limits, and preceding or succeeding a transportation movement. It will be noted that in section 8999 the word "switch" is not used; but the word "transport" indicates the nature of the movement referred to in that section. As used in sections 8998 and 9000 the word "switch" evidently refers to a reciprocal situation, as certain roads are precluded from claiming any rights under it, and the rates established are not profitable in themselves; that is to say, they are not rates that make the rendering of the service desirable business for a railroad from a revenue standpoint; but because of the fact that the service is reciprocal and the charges are paid, not by the patron, but by the road having the road haul, to the road doing the switching, they are acceptable rates. The evident intention was to give patrons at common points the opportunity for competition, the rates being low enough to justify absorption by the roads securing the road haul of the car or the traffic, inbound or outbound. Another feature of these statutory switching rates is that they contemplate no construction or maintenance cost to the switching line, as they apply to and from private tracks only. This is another reason why such rates should not apply to and from team tracks. Switching service rendered to and from private tracks involves only the movement cost. A switching service to and from team tracks may involve not only the movement cost, but may involve very heavy additional cost resulting from interest on outlay necessary to secure land and to construct the tracks, and from cost of maintenance. The movement to and from a team track, using the term "switching" in a proper sense, is not a switching service. The difference between "switching service" and "transportation service" cannot be made to depend upon the length of the haul, for a switching service may be ten miles, and a transportation service only two miles. A switching charge is a flat car rate, regardless of size of car, and regardless of lading. A rate made per ton on a particular commodity is a commodity rate; a rate made per one hundred pounds is a class rate, generally speaking, although, to a limited extent, the ton unit is used in classification, and the one hundred pounds unit used in commodity rates. A transportation service is that which involves two terminal services; that is to say, the placing of a car for loading at the point of origin, and for unloading at the point of destination. There are many tariffs denominated switching tariffs which carry rates where two terminal services are rendered, but the language is wrong. These rates are not switching rates. Again, when a transportation service rate covers two or more connecting lines, the rate is divided upon an agreed percentage, while a switching rate is arbitrary; it may or may not be absorbed by the connection having the road haul. When a terminal connection is given a percentage of a through carload rate from a point on a connecting line, it places the car on its team track for delivery; this is not throwing open its terminal to another road. Thus the Baltimore and Ohio Railroad Company will deliver to The Erie Railroad at Mansfield coal for points on The Erie Railroad west of Mansfield, and the latter enjoying a division of the through rate, will place the coal on its team tracks. This is not throwing open its terminals to The Baltimore and Ohio Railroad Company. If it has through rates on coal from a Baltimore and Ohio Railroad Company point via Mansfield to Galion, for instance, that rate will apply to any point between Mansfield and Galion, and The Erie Railroad is entitled to the Galion division. The same would be true if a through rate were made up of The Baltimore and Ohio Railroad Company's rate east of Mansfield, and The Erie Railroad Company's rate west; and if The Erie Railroad Company secures its proportion of the through rate, it would be just as well off were the point of destination a siding five miles or one mile from The Baltimore and Ohio Railroad Company interchange, or whether it lay inside or outside of the corporation limits of Mansfield. From the Gwinn Milling Company's plant on the Norfolk and Western Railway in East Columbus to sidings on The Baltimore and Ohio Southwestern Railroad within the western corporate limits of Columbus is more than six miles, could it be said that the Gwinn Milling Company should not be entitled to a fair transportation rate on a carload of flour from its mill to such siding? It would not be entitled to a switching rate, because such a movement would not be a switching movement. When a railway is paid its proportion of a joint transportation rate, or its local transportation rate, it is not in any sense throwing open its terminals to another railroad; but if it should take a car from a connection and place it on its public delivery siding at a switching rate, it would be throwing open its terminals to another railroad, and it is under no obligation so to do. Suppose, for instance, two lines intersect and interchange in a village, and there be an industry located on one line two miles from the intersection, and outside the village limits, and there be a siding on the other line two miles from the intersection and outside the village limits, would not the industry be entitled to a carload rate to such siding? What would happen if the village became a city and extends its corporation line so as to take in both these points? Would that geographical change in the municipal territory affect the common carrier duties of the roads performing the service? Municipal lines have no relation to switching limits, nor have switching limits any relation to transportation movements; but switching limits do affect and regulate switching movements. A through rate is a transportation rate between a point of origin and a point of destination. The word "station" merely indicates the location of the billing agent. So far as carload freight is concerned, very many plants have sidings distant from the station building, and freight loaded on such sidings is billed from the station regardless of municipal lines. Suppose there be two stations within a municipality, one on the east and the other on the west boundary ten miles apart, and there be a siding just east of one of these stations, and another just west of the other station, can it be held that a man cannot load on one siding and ship to the other? Certainly not. The rate shown in the tariff as applicable between the two stations would apply between the two sidings. The question of congestion of the sidings of defendants in the city of Akron, should the prayer of complainant be granted, is wholly problematical and has no weight in the determination of the merits of the complaint; and such condition may and often does arise from various legitimate causes. It is the obligation of the carrier to provide reasonably adequate service and facilities; and that a carrier has not discharged its duties in providing adequate facilities is not a defense. for not furnishing adequate service. Upon the other hand, a patron is not justified in demanding a rate via a particular route if there be already in existence a rate via a reasonably adequate route and reasonably adequate service be tendered such shipper. It should therefore be determined whether or not the existing service via The Baltimore and Ohio Railroad Company affords reasonable means of access to the territory desired to be reached by the complainant. A map furnished by the Erie Railroad Company affords the means of determining this question. According to this map, the only team tracks owned by The Baltimore and Ohio Railroad Company in Akron are at Howard and Spring streets. It has an auxiliary team. track in South Akron, which is leased from The Cleveland, Akron and |