129. The France Slag Company, Complainant, versus The Toledo, Angola and Western Railway Company, Defendant. Decided July 11, 1911. Thomas L. Gifford, for Complainant; King, Tracy, Chapman and Welles, for Defendant.

Complaint of discrimination in rates in favor of certain east bound traffic as against like traffic west bound.

Held, (1) That the simultaneous existence of a 30-cent rate west bound on stone and an east bound rate of $2.50 per car between the same points constitutes discrimination.

(2) That the simultaneous existence of a 15-cent rate on stone, east bound and a $2.50 per car rate on railway ballast east bound between the same points, the commodity being the same, constitutes discrimination. Defendant ordered to cease and desist from maintaining existing difference between east and west bound rates, and that rates be established on stone, sand, dolomite, slag and other freight in carloads on such relative basis that the west bound rates shall not exceed the east bound rates between the same points, by more than thirty per cent.

This case has many angles. In general, the contention of the complainant is that the rates in R. C. O. No. 79, R. C. O. No. 95 and R. C. O. No. 96 create a discriminatory situation; that the rates as established by the tariffs above named give The Toledo Stone and Glass Sand Company, operating at Silica, the western terminus of defendant road, an undue advantage over other patrons; that in fact the rates were made with the intent of prohibiting the use of the defendant road by anybody excepting The Toledo Stone and Glass Sand Company.

R. C. O. No. 79 carries a rate of 15 cents per ton on cinder, dolomite and stone in carloads, 20 cents per ton on sand and 30 cents per ton on all other freight in carloads from stations on The Toledo, Angola and Western Railway Company to private sidings and team tracks of The Toledo Terminal Railroad and to private sidings in Toledo on railroads connecting with the Toledo Terminal Railroad. It also carries a rate of 15 cents per ton on cinder, dolomite and stone, carloads, and 20 cents per ton on all other freight, carloads, from stations on the Toledo, Angola and Western Railway to Miller Junction and Vulcan, Ohio. Miller Junction is the point of connection between the Toledo, Angola and Western Railway and the Lake Shore and Michigan Southern Railway, and Vulcan is the point of connection between the Toledo, Angola and Western Railway and the Toledo. Terminal Railroad.

R. C. O. No. 95 carries a rate of $2.50 per car on stone, railway ballast, carloads, from Silica, Ohio, to Miller Junction and Vulcan. It contains a provision that this rate only applies when consignee provides cars free of per diem and demurrage charges to the Toledo, Angola and Western Railway.

R. C. O. No. 96 carries a rate of 30 cents per net ton on crushed stone and railway ballast, carloads, from Vulcan and Miller Junction

to stations on the Toledo, Angola and Western Railway, including Silica.

It will be observed that on east-bound movements the rate on stone, railway ballast, carloads, for the full length of the road is $2.50 per car and on the same commodity, west-bound, the rate is 30 cents. per ton, or $15.00 when the car contains fifty tons; in other words, the charge for hauling a fifty-ton car of stone railway ballast the full length of the road west-bound is six times the charge for carrying it the full length of the road east-bound. There is a slight difference in the service, however, because in the east-bound movement cars are furnished by the consignee and the Toledo, Angola and Western Railway Company is not responsible for car detention or rental, while on the west-bound movement they assume either demurrage or per diem, as the connecting line may elect. Aside from that feature, the service. is practically the same, as their engines haul the loaded cars, and when the freight is east-bound, that is to say originating on the Toledo, Angola and Western Railway, cars must be placed for loading, assembled into trains and the freight must be billed. The prevailing grade on the Toledo, Angola and Western Railway is against the west-bound movement; that is to say, the general trend of the road from west to east is down grade, consequently an engine can haul a much heavier train east-bound than west-bound.

Aside from the issues raised by the complaint, it would seem that R. C. O. No. 95 is subject to criticism in that it attempts to establish a peculiar rate on a commodity with reference to the use to which the commodity may be put. "Stone railway ballast" is an arbitrary term for crushed stone. The same commodity if shipped to be used for highway construction would be shipped as crushed stone, and if to be used for railway construction would be shipped as stone railway ballast at a lower rate. The situation invites fraud. By designation on the bill of lading the shipper could determine the rate; that is to say, by describing the commodity as railway ballast he could secure a rate of $2.50 per car, whereas by describing it as crushed stone he would have to pay a much higher rate. Were such a policy recognized in rate-making, one rate could be applied on coal when shipped to a dealer and another when shipped to a manufacturer. The relation of commodities in so far as determination of rates is concerned, depends not upon the use to which the commodities are to be put, but upon their physical characteristics. A cheap heavy commodity is entitled to a lower rate than a high-priced bulky commodity, but there seems to be no justification for giving the same commodity two different designations, one or both of which indicate the use to which a commodity is to be put by the consignee, and applying different rates on the same commodity under different names.

Counsel for defendant seems to think that rates over the same

5-R. C.

road in the opposite direction bear no relation to each other; that no matter how great the disparity between an east-bound and westbound rate between two points, discrimination cannot exist. To be concrete: According to this doctrine, if a firm in Cincinnati and at firm in Cleveland were competing at Delaware, for instance, which is a point about midway between Cleveland and Cincinnati on the Cleveland, Cincinnati, Chicago and St. Louis Railway, that it would be entirely proper for the Cleveland, Cincinnati, Chicago and St. Louis Railway Company if it saw fit, to maintain a 7-cent rate from Cleveland to Delaware and a 15-cent rate from Cincinnati to Delaware, and the Cincinnati firm would have no ground for complaining of discrimination. Such a doctrine can hardly be accepted; at least where such disparity exists it should not be purely arbitrary, but should be based on some valid reason.

The evidence shows that out of the 15-cent rate per ton on crushed stone from Silica to points on the Toledo Terminal Railroad, the Toledo, Angola and Western Railway receives 334 cents per ton for its haul from Silica to Vulcan, the full length of the road. It is hard to understand how the Toledo, Angola and Western Railway can carry freight of any kind in carloads the full length of the line at 334 cents per ton without losing money; but the voluntary establishment of a rate by a railroad is prima facie evidence that the rate is reasonable and compensatory. If this be the case, 30 cents per ton for the haul from Vulcan to Silica, or the full length of the line in the opposite direction, is certainly very much out of line inasmuch as it amounts to eight times the cast-bound rate. While it is undoubtedly true that the cost of operation west-bound is in excess of the cost of operation east-bound, yet the difference in cost would not justify so glaring a difference in charge.

At the hearing, the complainant endeavored to show that the Toledo, Angola and Western Railway was operated solely in the interest of the industry at Silica. It was admitted by the defendant that there was a common ownership. The rate structure as evidenced by the tariffs above referred to, would lead one to believe that the owners of both the industry and the railroad, subordinated the financial interests of the road to the financial interests of the industry.

Whether it be true or not that the railroad is operated simply as an appurtenance to the industry, it certainly must be admitted that the railroad as a common carrier has certain public obligations; one of which is that it must not discriminate as between localities or patrons. It is hard to come to any other conclusion than that the tariffs in existence at the time complaint was made, and at which complaint was directed, do discriminate as between localities and also as between patrons. The Toledo, Angola and Western Railway should do one of two things; either advance its east-bound rates or reduce its west

bound rates. It should also cease attempting to discriminate between consignees by basing rates upon use. Neither can we see any reason why there should not be established a rate on furnace slag in carloads somewhere near that in effect on crushed stone in carloads.

The Commission find:

That the simultaneous existence of a 30-cent rate west-bound on stone and an east-bound rate of $2.50 per car between the same points constitutes discrimination;

That the simultaneous existence of a 15-cent rate on stone, eastbound, and a $2.50 per car rate on railway ballast east-bound between the same points, the commodity being the same, constitutes discrimination. It is, therefore,

ORDERED, That The Toledo, Angola and Western Railway Company be and it is hereby notified and required to cease and desist from maintaining the existing difference between east and west-bound rates on the same commodities between the same points; and to cease and desist from maintaining the existing disparity between east-bound rates on the same commodity under different names between the same points. It is further.

ORDERED, That The Toledo, Angola and Western Railway Company be and it is hereby notified and required to establish rates on stone, sand, dolomite, slag and other freight in carloads on such relative basis that the west-bound rates shall not exceed the east-bound rates between the same points, by more than thirty per cent.

130. The Batavia Improvement Company, Complainant, versus The Norfolk and Western Railway Company, Defendant. Decided July 11, 1911. Nichols and Nichols, for Complainant; Bannon and Bannon, for Defendant.

FINDING AND ORDER.

This matter came on for investigation upon complaint of an organization of business men of the village of Batavia, Ohio, which organization is known as the Batavia Improvement Company, against the Norfolk and Western Railway Company.

For cause of complaint, complainant says, "That said Norfolk and Western Railway Company, has a train leaving Cincinnati at 8:45 p. m. daily and that said train does not stop at Batavia, Ohio, (county seat of Clermont County, Ohio) and that after 6:10 p.m. there is no way of persons getting to Batavia, Ohio, from Cincinnati, and on Sunday said railway company has only one train leaving Cincinnati going east which stops at Batavia, Ohio, to wit, 6:50 a. m. Therefore we

would ask your Commission to compel said railroad to stop said 8:45 p. m. train at Batavia daily."

In accordance with the order of this Commission, investigation of this complaint was made at Cincinnati, Ohio, on the ninth day of June, 1911, Mr. Allen B. Nichols appearing as counsel for complainant and Bannon and Bannon on behalf of the defendant.

As shown by the evidence, defendant, The Norfolk and Western Railway Company, stops three of its west and two of its east-bound trains at Batavia daily, except Sunday, and said village is also accorded service by an electric railway to and from Cincinnati, although the latter railway is not so direct a route as defendant's route. The train in question is No. 24, leaving Cincinnati at 8:45 p. m. and is scheduled as a fast train between Cincinnati and Portsmouth, Ohio. Said train serves important connections at Cincinnati and makes close connections at Portsmouth, Ohio, with defendant's train No. 4 out of Columbus. No. 24 carries a sleeper for Lynchburg, Virginia, and carries heavy tonnage of express matter and United States mail for Virginia, West Virginia and Carolina points. This train is combined at Portsmouth, Ohio, with said train No. 4 out of Columbus and becomes a part of the through train to the points named. No. 24 leaves Cincinnati as soon as practicable after arrival of connections, makes close connection with defendant's said train No. 4 at Portsmouth; its running time approximates the maximum speed which can be attained with safety to its operation. The evidence shows that by reason of the heavy grade beginning at Batavia and extending eastward for some miles that a stop at Batavia would cause a greater loss of time than a stop at any other point between Cincinnati and Portsmouth.

It further appears that the need of the service demanded of this train by complainant is very irregular, uncertain, and not of sufficient importance to amount to a public necessity.

Considering the service accorded complainant by defendant as herein stated, and the service accorded by said electric road, and the irregularity and uncertainty of the travel to be accommodated, the Commission are of opinion that it does not amount to such public necessity as would warrant the stopping of the train in question at Batavia, either regularly or on flag. The purpose of this train seems to be, in fact, for through business, and, in view of the kind and degree of service afforded by defendant, there does not appear to be a sufficient justification for changing the original purpose of this train, or impairing its character as a through train by interruption of its schedule; neither is the public demand for additional service so great at Batavia as to warrant the Commission, from the facts developed, in ordering additional service by the installation of an additional train between Batavia and Cincinnati,

The complaint is therefore dismissed.