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other shippers of coal except those who load by tipple. The Commission said in its opinion that it did not decide whether or not the carrier might lawfully provide that shipments of coal in carloads should not be made except where the loading is by tipple, or prohibit altogether the loading of coal from wagons or sleds on its team tracks, as those questions had not been presented by the record.
A regulation of carriers at Cincinnati, Ohio, which changed the hour of closing freight depots in that city on each week day for the reception of outgoing package freight from 5 to 4.30 o'clock p. m. daily, except Saturday, and also changed the closing hour on Saturday from 1 to 12.30 p. m., made the basis of a case brought by the Cincinnati Chamber of Commerce and Merchants’ Exchange against the Baltimore & Ohio Southwestern Railroad Company and others. The case was decided in October of this year (10 I. C. C. Rep., 378). The Commission held that it is authorized by the act to regulate commerce, after investigation, to order carriers to cease and desist from suojecting any particular person, locality, or description of traffic to undue or unreasonable prejudice or disadvantage in any respect whatsoever, and that its jurisdiction extends to a case of alleged unlawful prejudice and disadvantage to shippers of outbound package freight through enforcement by carriers of a regulation providing for the earlier closing of depots used for the reception of such freight.
Proceeding to the consideration of the facts, it appeared that the defendant carriers more largely engaged in carrying outbound package freight from Cincinnati were unable, with their present depot facilities and times for the departure of evening trains, to clear their platforms daily of that class of traffic without closing the receiving depots for such freight at 4.30 p. m.; that a closing rule which prevents congestion of freight in depots is as much to the advantage of the shipper as a later hour would be in enabling the shipper to place his freight in the depot, and that the carriers were doing the best they could under the existing circumstances; that the large and growing volume of outbound package freight from Cincinnati indicated the necessity of strenuous efforts by the carriers to remove any existing hardship to shippers through inability to compete under the earlyclosing rule on even terms with shippers in other distributing cities. We held that the existing disadvantage to Cincinnati, under the circumstances shown in the case, was not unreasonable or undue, but that it might become so if continued indefinitely, and that dismissal of the complaint should be without prejudice to any further necessary proceeding
In the case of the Derr Manufacturing Company against the Pennsylvania Railroad Company and others, the classification of ironhandled bristle shoe-blacking daubers in less than carload lots was the subject of consideration (9 I. C. C. Rep., 646). The Commission held that while there are exceptional instances requiring deviation from methods generally employed in constructing freight classification, it is manifest that to require the separation and the grading into different classes with varying rates different grades of the same articles of freight would greatly complicate the work and go far to defeat the very purpose of classification, and even then it would be impracticable to apportion with mathematical exactness the burdens of transportation; that the best result obtainable in this direction is reasonable and substantial approximation, and that a cheap grade of brush manufactured and sold by the complainant as a blacking dauber was not entitled, from the facts in the case, to be classified lower than the class to which bristle brushes in general are assigned.
A case in which the Mayor and City Council of Wichita, Kans., was complainant and the Missouri Pacific Railway Company and others were defendants, decided in January last (10 I. C. C. Rep., 35), involved the rates on wheat and flour from points in Kansas and Missouri to points in Texas. The differential complained of was 5 cents per 100 pounds higher on flour than on wheat, and it appeared in the case that such differential was not applied on flour or wheat carried in any other direction. The differential against flour to Texas points had been the subject of controversy in two previous cases before the Commission, one decision in 1890 (4 1. C. C. Rep., 417), and the other in 1899 (8 I. C. C. Rep., 304). In the decision of those cases the 5-cent higher rate on flour than on wheat when applied on the traffic to points in Texas and under the conditions affecting that traffic was not found to be unlawful. We held upon the record in this case that since the former decisions had been rendered there had been no such change in conditions governing the traffic as to warrant interference by the Commission.
The case of Parks against the Cincinnati & Muskingum Valley Railroad Company, also decided in January of the present year (10 I. C. C. Rep., 47), related to the provision of cars and switch facilities at New Holland, Ohio. In the decision it appeared that the complainant alleged unjust discrimination by the defendant carrier in failing to furnish him with cars for the shipment of grain, while supplying more than a fair proportion of cars to a competitor doing business in the same town, and that the carrier subjected him to unreasonable disadvantage by providing his competitor in the coal business with a private switch and denying the like facility to him, thereby compelling him to unload coal at an inconvenient point near the outskirts of the town. Reparation was demanded. The Commission found that the complainant desired to ship grain mainly to eastern points, concerning the transportation of which an embargo had been established by eastern lines, while his competitor in that business shipped largely by defendant's line to local points, for which complainant had no shipments, and that as to the coal business the complainant really desired to use a passing siding of defendant for the purpose of unloading his coal. Upon these and other circumstan,es shown in the case it was held that there was no such showing of undue preference or unjust discrimination as would warrant an order for relief or reparation.
The case of Hewins against the New York, New Haven & Hartford Railroad Company, decided in April last (10 I. C. C. Rep., 221), was based upon an alleged unlawful discrimination in rates charged by the carrier on parlor-car seats on certain of its passenger trains. The carrier had numerous daily through trains between New York and Boston, on which the through parlor-car fare is $1. On all trains from intermediate points the parlor-car fare is 50 or 75 cents, according to distance, and on three trains the parlor-car rate is $1 to intermediate points. The complaint was that the charge of $1 to intermediate points constituted unjust discrimination. The Commission ruled: First, that it is not a violation of law to charge more in one direction on certain trains than is charged in another direction on all trains between the same points; second, that the defendant carrier furnishes adequate parlor-car accommodation for local and short distance passengers, and the discrimination against such passengers by reason of the $1 rate to intermediate points on three of its
ains was not undue or unreasonable.
An investigation in regard to the transportation of immigrants from New York and other Atlantic ports to western destinations was concluded by the Commission in January last by the filing of its report and opinion (10 I. C. C. Rep., 13). It appeared, among other things, that this immigrant traffic is divided between the carriers in agreed proportions based upon the proportion of the domestic passenger traffic done by each line; that apparently such a practice can not be made effective in respect to any other class of passenger business; that the immigrants are carried from the seaboard at domestic published rates; and that the arrangements adopted by the carriers in connection with the immigration authorities of the United States for handling immigrant business have efficiently promoted the protection and greatly improved the treatment and comfort of immigrants.
The decision of the Commission was that whether section 5 of the act to regulate commerce, prohibiting carriers from entering into any contract, agreement, or combination “for the pooling of freights by different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads or any portion thereof," applied to such a division of passengers as had been shown to exist in this case, was, at least, doubtful; that no discrimination as against individuals, classes, or localities resulted from the handling by the carriers of this immigrant business at the domestic published rates, and that there was no justification at the time for the issuance of any order in the premises.
In March of the present year the Commission filed a decision which chiefly relates to the question of reparation in the case of the Cattle Raisers' Association of Texas as complainant and the Chicago Live Stock Exchange as intervener against the Chicago, Burlington & Quincy Railroad Company and other lines entering Chicago from the south and west (10 I. C. C. Rep., 83).
The Commission held in this case that the act to regulate commerce clearly confers authority upon the Commission to award damages in
ses brought before it, and as such award is simply a recommendation, which can only be enforced by a suit at law, affording full opportunity for a jury trial, the act in this respect is, in the opinion of the Commission, constitutional and valid.
By its original decision in this case the Commission declared that a terminal charge of $2 per car on live stock for delivery to the Union Stock Yards in the city of Chicago was unlawful, and further that any such charge exceeding $1 per car would be unlawful, and continued the case for proof of damages to injured parties. The decision of the United States Supreme Court upon the petition to enforce the regulating order of the Commission (Interstate Commerce Commission v. Chicago, Burlington & Quincy Railroad Company et al., 186 U. S., 320) in general sustained the view of the Commission, but dismissed the proceeding on account of a reduction in the through rate which had been made from certain territory not described in the record before it, which reduction amounted to more than the terminal charge; and authorized the Commission to take further proceedings to correct any unreasonableness in the rate resulting from the additional terminal charge as to any territory to which such reduction did not apply. The reduction referred to took place in 1896 and the $2 terminal charge has been imposed by defendants since June 1, 1894. It follows that as to all shipping territory the defendants have, between June 1, 1894, and the date of the through rate reduction in 1896, unlawfully exacted $1 per car on live stock as the terminal charge in Chicago, and that in respect to the territory in which the reduction in through rate did not apply defendants have always, since June 1, 1894, collected an excessive charge in Chicago to the amount of $1 per car. That branch of the case relating to reparation was properly held open pending deter-' mination of the other branch, and the decision of the Supreme Court in the case for enforcement of the regulating order of the Commission was held to constitute no bar to submission of proof before and action, by the Commission upon the question of reparation.
The following additional rulings upon reparation in this case were made :
The allegations concerning reparation in the original petition to the Commission are plainly sufficient to constitute the basis for an award of damages by the Commission, but before hearing the defendants are entitled to a specification showing in detail the amounts for which recovery is sought.
The Cattle Raisers' Association of Texas asked, in its original petition, for reparation in behalf of its members, and whatever may be said of the right or status of shippers generally as to reparation for damages resulting from a rate or charge declared by the Commission to be unlawful, in this case the Cattle Raisers' Association of Texas is entitled to show damages to its members, and upon such showing it will be the duty of the Commission to order the defendant carriers to make reparation; but in view of the unsettled state of the law in this respect, and in order that all phases of the question may be presented to the court, the members of the association seeking damages should file claim in the nature of an intervening petition showing their membership in the association and payment by them of the charges in question, accompanied by a specification giving as definitely as possible the dates and amounts paid.
Where the statute establishes a method of procedure for the enforcement of a right of action which finally results in bringing that matter by the prescribed course before a court for determination, the principle established by leading cases is that the first step which must be taken in the proceeding to enforce the claim should be treated as the beginning of the suit which finally results. Therefore, when a party elects to proceed before this Commission for the recovery of damages, his petition filed with the Commission should be considered the beginning of his action in all its subsequent stages. In this case the suit of members of the Cattle Raisers' Association of Texas for the recovery of damages should be treated as having been begun by the filing on their behalf of the original petition of that association herein, and there is consequently no room for application of a statute of limitations.
The procedure in this case, with respect to reparation, is defined as follows: Upon proof thereof damages will be allowed in favor of members of the Cattle Raisers' Association of Texas on shipments from all territory down to the reduction in through rates of 1896, and from territory to which that reduction did not apply down to the date of hearing to be had in relation thereto; but those damages accruing before and those since the original order of the Commission herein should be shown separately, and as conditions may have changed since the date of such order, defendants will be allowed to show such subsequent facts as may now render the entire through rate, including the terminal charge, a reasonable one.