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are grounded in principles hat will stand the test of time and experience, and only time and experience can determine whether all the provisions made for their enforcement are safe, sound, and workable. When they prove not to be, experience will be a safe guide in legislation to protect them.

J. W. SLAPPEY and G. R. Slappey, composing firm of "Cider & Vinegar Co.," Marshallville, Ga.,

v.

CENTRAL R. R. CO. OF GEORGIA; Brunswick & Western R. R. of Georgia; Savannah, Florida & Western R. R. Co., and South Florida R. R. Co.

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(No. 104.)

BSTRACT of complaint filed December

Petitioners ship from Marshallville, Georgia, to Tampa, Florida, 527 miles, and are charged $1 per 100 pounds by the Central R. R. Co. of Georgia, which connects with the other roads. Rates are made with the first named defend

Incidentally in this report some need of amendment has been pointed out. Especially ought the Law, as we think, to indicate in plain terms whether the express business and all other transportation by the carriers named in the Act shall be governed by its provisions. The provision against the sudden raising of rates ought to be clearly made applicable to joint rates as well as to others. The Commis sion ought also to have the authority and the means to bring about something like uniform-ant. The rate of defendants from Macon, ity in the method of publishing rates, which is now in great confusion, and to carefully examine, collect, and supervise the schedules, contracts, etc., required by the Law to be filed, as well as properly to handle the mass of sta tistical information called for by the twentieth section. For all these purposes, as well as for others imperfectly provided for, a considerable addition to the force employed with the Commission will be indispensable.

Other matters, and particularly whether

transportation by water shall be made subject
to the Act, are submitted to the wisdom of
Congress without recommendation.

All which is respectfully submitted.
Dated December 1, 1887.

THOMAS M. COOLEY,
WILLIAM R. MORRISON,
AUGUSTUS SCHOONMAKER,
ALDACE F. WALKER,

WALTER L. BRAGG,
Interstate Commerce Commissioners.

INTER S.

Georgia, to Tampa, a distance of 564 miles, is only fifty-two cents. This constitutes unjust discrimination against complainants.

R. T. KNOWLES

v.

OHIO & MISSISSIPPI R. R. CO. (No. 105.)

ABSTRACT of complaint filed December 19, 1887, alleging unjust charges.

Complainant is a manufacturer of cooperage at Dillsboro, Indiana, and ships by defendant's line to Cincinnati, thirty-three miles.

Prior to the passage of the Law defendant charged $10 per car. After May 26, 1887, defendant charged complainant $16.80 per car. Afterwards defendant charged $15 per car, which they now charge.

These charges are unjust and onerous, and contrary to the Interstate Commerce Law. Prays for investigation and reparation

Re EXPRESS COMPANIES.

Express business, when conducted by a railroad company, is within the provisions of the Interstate Commerce Act; but independent express companies are not subject to the Act, not being included among the common carriers declared to be subject to the provisions of the Act as they now stand.

(Heard Oct. 25.-Decided Dec. 28, 1887.)

N notice from the Commission to the various

express crop this to show why they should not comply with the provisions of the Inter

state Commerce Act.

Arguments of counsel on behalf of the press companies are given ante, 448-462.

OPINION OF THE COMMISSION.

WALKER, Commissioner:

carried and delivered by them at the usual ulation is expressed or understood upon all rate of charge for such service." Such a stipthe lines.

it

It is claimed as a reason for the surrender

of this business by the railroads to the express companies that the rapidity and certainty required in this service can best be secured by a special organization, largely composed of trained servants, whose attention is given exclusively to the handling of this class of traffic, and that the present satisfactory results could not be attained by undertaking to carry uld not be at regular employees of the railroad companies. This is, no doubt, in a great measure true. Nevertheless it has been ex-found practicable on some important lines to organize an express service as a department of the traffic of the company. And it should be further remarked that the practice of turning over a branch of the carrier's business to a third party by contract is susceptible of indefinite extension.

Contracts are made with the railroad company to furnish space upon fast trains for the express business, which may be paid for by the year, by the space occupied, by the weight carried, or according to an agreed division of the gross receipts, or of the profits. The method of ascertaining the compensation to be paid for the carriage of the messengers and freight varies greatly in different portions of the country. Perhaps the most usual contract is one which pays to the railroad company 40 per cent of the gross receipts of the express company.

A considerable part of the movement of freight from one State or Territory to another, throughout the United States, is carried on by so-called "Express Companies." Originally suggested, as it seems, by the employment of messengers to carry bank exchanges of money and securities, the system has developed into a very general method of transporting all prop erty of special value or of perishable nature, or when speed in transit is for any reason desired. It is pursued upon substantially all the lines of railroad in the country, as well as upon steamboat lines, stage coaches, and other vehicles of carriage. The charges collected for such transportation are relatively high, as compared with the ordinary freight business of railroad A messenger usually accompanies the exand steamboat companies, but the service is press freight in transit, who is not in the emrapid and accurate. The existence of express ploy of the railroad companies, and the busicompanies and the facilities which they fur-ness of receiving and delivering the goods and nish have developed to immense proportions a business adapted to the requirements of such traffic. Railroad companies prefer that freight in small parcels and of the nature in other respects considered appropriate to the express business, especially when quick transit is essential, should be handled by those agencies. The public is no doubt better served by them in some respects than it would be by the ordinary methods of railroad transportation. For various reasons, therefore, the custom of sending all such business "by express" has become a matter of course, and the methods of its transportation have been highly systematized. In fact, although as to some articles the ship per has a choice whether they shall be sent as express matter or as freight, there are many which the railroad companies seem to regard as more appropriate for transportation by the express companies, and relinquish wholly to

them.

The contract on file in this office, between a leading railroad company and the express company which handles its parcel traffic, contains the following clause: "All matter seeking transportation by passenger trains shall be considered and treated as express matter (except the personal baggage of passengers on the train, and milk, and excepting such matter as the railroad company, through its representa tives, shall elect to carry free of charge); with these exceptions, all such matter shall be turned over to the express company and be

property transported is managed by employees of the express companies, who are generally entirely distinct from the agents of the railroad lines, although at the smaller stations the same person is often employed by both. So far as the public is concerned, this business is wholly done by the express companies, the shipper and receiver of the property having no contract relation with the corporation or person owning the railroad or other system of transportation employed, but dealing exclusively with the express company operating on the route desired, to which alone he looks in case of loss or damage. The express company itself thus becomes a common carrier, employing instrumentalities of commerce, in part its own and in part hired from other carriers and having the responsibilities, duties, liabilities, rights, and liens of a common carrier in its relations with the public. Its position in this respect has been judicially ascertained, is well understood throughout the country, and is not seriously in dispute.

The companies engaged in this peculiar method of conducting interstate traffic are known by the following names:

Adams Express Company, American Express Company, Baltimore & Ohio Express Company (Recently acquired by the United States Express Co.), Canadian Express Company, Dominion Express Company, Erie Railroad Express, National Express Company, Northern Pacific Express Company, New York

& Boston Dispatch Express Company, Pacific be divided among several companies there Express Company, Southern Express Com- might be occasions when the public would pany, United States Express Company, Wells, Fargo & Company.

Each of these companies operates a certain territory as its own, the entire country having been definitely subdivided among them by agreement or by chance. The right of rail road companies to make an exclusive contract with a selected express company for the hand ling of all the express business upon its line has recently been established by the Supreme Court of the United States. The language used is as follows:

be put to inconvenience by delays which would otherwise be avoided. So long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own appropriate means of carriage, always provided they are such as to insure reasonable promptness and security." [Express Cases, 117 U. S. 23 (29 L. ed. 801).]

The express business is, therefore, very largely noncompetitive. Cases exist where two or more railroad or steamboat lines, over which different express companies have contracts, reach the same terminal or junction points; but, so far as the public are aware, there has been little difficulty in establishing and maintaining agreed rates in such instances. Rate wars or even the existence of any active competition among express companies have seldom, if ever, been heard of. Interchange of traffic between the different companies at points of junction is carried on without friction, usually upon the simple theory that the public in such cases must pay the charges of two companies in stead of one.

"The reason is obvious why special contracts in reference to this business are necessa ry. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable certainty as to the quan tity that will be carried at any one time. As the things carried are to be kept in the personal custody of the messenger or other employee of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that this should, as far as practicable, be put in the exclusive possession of the expressman in charge. As the business to be done is 'express,' it implies access to the train for loading at the latest and for unloading at the earliest con venient moment. All this is entirely inconsistent with the idea of an express business on passenger trains frce to all express carriers. Railroad companies are by law carriers of both Their methods of organization are very di persons and property. Passenger trains have verse. Some, like the Southern Express Com from the beginning been provided for the pany and Wells, Fargo & Company, are cor transportation primarily of passengers and porations, holding charters from State Legistheir baggage. This must be done with rea- latures which authorize them to carry on the sonable promptness and with reasonable com express business by name; others, like the fort to the passenger. The express business American Express Company and the National on passenger trains is in a degree subordinate Express Company, are not corporations, but to the passenger business, and it is consequent quasi partnerships, with additional powers recly the duty of a railroad company in arranging ognized by legislation in the State of New for the express to see that there is as little in York, where more than seven persons are terference as possible with the wants of pas united; being called joint stock companies, hav sengers. This implies a special understanding ing transferable shares of stock, with such per and agreement as to the amount of car space petuity of organization as the articles of the that will be afforded, and the conditions on association provide, and the right of suing aud which it is to be occupied, the particular trains being sued in the name of the president or that can be used, the places at which they treasurer; but the shareholders being, nevershall stop, the price to be paid, and all the va-theless, liable, as partners, among themselves rying details of a business which is to be ad- and to the public. There is nothing in the nat justed between two public servants, so that ure of the express business which prevents its each can perform in the best manner its own being carried on by an ordinary partnership particular duties. All this must necessarily or even by an individual, provided the neces‐ be a matter of bargain, and it by no means fol sary contracts can be obtained with transporta lows that because a railroad company can tion lines. Others are practically branches or serve one express company in one way it can bureaus of the railroad companies themselves, as well serve another company in the same way acting under a distinct head and through seps and still perform its other obligations to the rate organizations, but the profits of the busi public in a satisfactory manner. The car ness accruing to the railroad treasury. Others space that can be given to the express business still are combinations of roads, organized in an on a passenger train is, to a certain extent, aggregate form, for the purpose of transacting limited, and, as has been seen, that which is the express business of their several lines. allotted to a particular carrier must be, in a Soon after the organization of this Commis measure, under his exclusive control. No ex-sion a letter was received from the Canadiar press company can do a successful business Express Company as follows:

unless it is at all times reasonably sure of the means it requires for transportation. On im portant lines one company will at times fill

"Canadian Express Company, General Superintendent's Office, Montreal, April 1, 1887.

all the space the railroad company can well To the Hon. the Chairman of the

allow for the business. If this space had to

Interstate Commerce Committee,

Washington, D. C. Dear Sir: Will you please inform us whether the law recently enacted, known as the Interstate Commerce Act, will apply to express companies? It has been thought by some that inasmuch as express companies are only forwarders and patrons of the various railways and steamboats that their operation would not come under this Act. My reason for asking is the fact that this company's business extends into the United States, over the Grand Trunk Railway, between Island Pond, Vermont, and Portland, Maine, and also over the same company's line between Port Huron, Michigan, and Detroit; and, wishing to be in a position to meet all requirements of law, you will greatly oblige us by letting us know our position in this matter. Awaiting your early reply, I remain Yours Truly, (Signed) G. Cheney, General Superintendent." To which the Commission replied thus: "April 4, 1887.

G. Cheney, Esq., Gen. Sup. Can. Exp. Co., Montreal, Canada. Dear Sir: Your letter of the first inst., requesting the decision of the Commission upon the question whether the Interstate Commerce Law applies to express companies, has been laid before the Commission and duly considered.

If any express company desires to be heard by the Commission on the question you raise, an early opportunity will be afforded for the purpose, but until such hearing is applied for the Commission will assume that the law does apply to such companies. Very Respy. Yours, (Signed)

of said section forthwith. Should you desire to be heard upon the matter the Commission, before final action, will entertain the consideration of a written or printed argument, if filed within thirty days, provided you give us notice at once of your intention to do so. For the Commission.

Very Respectfully,

Edward A. Moseley, Secretary." To this communication various responses were received. The general manager of the Erie Express Company, under date of July 27, wrote as follows:

"I inclose herewith a circular issued by this company on April 5 last, which will evidence to the Board of Interstate Commissioners that the Erie Express voluntarily came under the ruling of the Interstate Law on April 5, 1837, after the decision of your board in answer to an inquiry made by the Canadian Express Company; also that we are now working on the basis of the circular issued at that time.

Our tariffs are being prepared as rapidly as possible and will be furnished your Commission as soon as complete.

Respectfully Yours,

(Signed)

Wm. W Chandler, Jr, General Manager." The circular referred to in above letter is as follows:

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T. M. Cooley, Chairman." This company thereupon filed with the Commission schedules of its rates and charges. Afterwards the Dominion Express Company and the Northern Pacific Express Company also filed schedules under the sixth section of the Act to Regulate Commerce. It becoming ap-rate. parent that other express companies did not consider the Act as applicable to them, the Commission, on July 19, 1887, caused the following letter to be sent to each:

To the

"July 19, 1887.

Express Company: The Commission has observed your failure to comply with the requirements of section 6 of the Act of Congress, approved February 4, 1887, entitled an Act to Regulate Commerce. In view of the time which has elapsed since the Law went into effect it is obvious that this failure on your part is intentional and not mere. ly inadvertent. The reasons for the course taken by your company have not as yet been laid before the Commission, and it has not as yet entertained the consideration of the question whether or not express companies are common carriers subject to the provisions of said Act, further than to say on April 4, 1887, in answer to an inquiry by the Canadian Express Company, that until a hearing upon the subject is asked for it will assume that the Law does apply to such companies. The Commission is now ready to act definitely upon this subject. Your company is therefore notified and requested to comply with the provisions

The tariff to comply with the requirements of the Law will be changed as soon as possible. I herewith furnish you the rates between New York and Boston to the principal points in the Erie system and rates between intermediate points must not exceed these rates in any instance.

From New York and Boston to Rochester, N. Y. 125; Buffalo, N. Y. 125; Cleveland, O. 150; Toledo, O. 200; Cincinnati, O. 200; Chicago, Ill. 250.

Respectfully, W. A. Dieney, Jr., Chief of Tariff. Approved: W. M. Clements, General Manager.'

Afterwards, on September 21, 1887, the Erie Express Company, by its attorney, claimed the benefit of the briefs filed by counsel of the other companies in opposition to the applicability of the Act to the express business.

The Pacific Express Company, on July 27, wrote the Commission as follows:

"Omaha, Neb. July 27, 1887. Hon. Edw. A. Moseley, Secretary Interstate Commerce Commission, Washington, D. C. Dear Sir: I beg to acknowledge receipt of

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