meeting, will bring together literally thousands of people, many of them from distant points. In a less degree theatrical, operatic, and other public performances accomplish the same results. This is another and a very sound reason justifying the carriers in encouraging such exhibitions as a means of stimulating travel over their lines at regular rates. No such results accrue to the carriers when 10 persons agree to travel together, not because they have a common object and purpose in doing so, but simply in order to take advantage of lower rates. That is not the same kind of traffic. The members of theatrical companies must travel together and can not travel separately. They have a common occupation and a common purpose in being together. Each member of such an organization is necessary to the others. The organization can not proceed with its business unless all are together. They have baggage and effects that are common to them all and must go with all. Ordinarily they have a common manager or some person to look after the transportation and, usually, to supply the funds for it. It is organized travel. Much of the time of such organizations is spent upon the railroads, and, as has been said, a large proportion of their expense is for transportation.

This kind of traffic, I submit, differs very essentially from a party of ten or more persons that may have no relation to one another or any common object or purpose in traveling together except to get the benefit of lower rates. To such a party one person is as useful as another to make the required number. The only object to be accomplished in getting together is to secure the lower rates. And if they can not come together naturally and of their own accord, the brokers and ticket scalpers will find it profitable, under this decision, to advertise and bring them together. Such traffic is not organized travel. Such persons do not need a concession in rates to enable them to travel. And the result of such traffic to the carriers, if carried on party rates, is simply to deprive them of the full rate that the public as a whole has to pay when it travels. To such persons the party rate would be simply a fortuitous advantage of which they may avail themselves, but which is not justified or required by the circumstances or conditions under which they travel. They do not induce others to travel as do the amusement companies. Such travel does not result in building up traffic, as do such companies. In my judgment it is a different kind of traffic.

The views here expressed seem to me to be fully supported by United States v. Chicago & Northwestern Railway Company, 127 Fed. Rep., 785, where the railroad company denied party rates to a movement of Federal troops. It is said that the decision in that case. sustains the railroad company on the ground that its published tariffs required payment in cash for a party rate ticket, while the custom of the Government is to pay for transportation upon written requisitions,

which ordinarily take several months to get through the accounting offices of the Government. While that fact is in the case, it is treated only as an incident in the decision. The Government has always paid for transportation upon requisition, and that objection would be as valid in the purchase of a single ticket as in the purchase of a party rate ticket.

The published tariff in that case limited the party rate to "theatrical, operatic, or concert companies, glee clubs, brass or string bands, baseball, polo, or football teams, and other parties of like character regularly organized for the purpose of giving exhibitions and traveling together." The court says (p. 789):

It is clear that the Government does not fall within any of the designations of persons or parties named in the schedules. There is no analogy or likeness between the business of the Government in the transportation of its soldiers and the various classes of persons described in the company's schedules. Under no possible construction of the language can it be claimed that the United States comes within the party rule. The Government's business is not like that of a theatrical, operatic, or concert company, or a hunting or fishing party, and it bears just as little likeness to any of the other parties named, as glee clubs, brass bands, boat, baseball, polo, or football teams; nor is it, in the language of the schedules, a party of like character to any of these, regularly organized for the purpose of giving exhibitions and traveling together.

There seems to be nothing in the decided cases in support of the conclusions reached by the majority, unless it be the dictum referred to in the prevailing opinion from Interstate Commerce Commission v. Baltimore & Ohio Railroad Company, 145 U. S., 263, where the court upholds the general legality of party rate tickets in a strong opinion, in which, incidentally and apparently not with reference to the language of section 2 of the act, but of section 3, it suggests that a party rate limited to theatrical troupes might present a question of undue preference or advantage. But it is apparent that this thought is thrown out, not as a point decided by the court but as a question for consideration only. On its face the quotation bears the warning of the court that it was not otherwise intended. In my judgment the Commission is not warranted in accepting the dictum as controlling, in view of the fact that the practice of limiting party rates to amusement companies is more than a generation old and has been thoroughly understood and acquiesced in by the public at large.

It is proper to add that the prevailing opinion is entirely inconsistent with other rulings of the Commission recognizing the right of carriers to issue excursion tickets and to limit their use to members of a particular association or society or to delegates to a particular convention. We have also expressed our approval of round-trip

tickets limited to the use of Government employees in returning home to vote at public elections. Those rulings can not logically stand with the majority opinion in this matter. If a Government employee going home to vote may be transported in the same train and at the same time and between the same points with another citizen, at a special rate that is denied to the latter, and if a group of delegates to a particular convention or members of a particular association may be transported in the same train and at the same time and between the same points with other groups of citizens, at a special rate that is denied to the latter, it is difficult to see upon what basis it is now said that special rates for organizations engaged in giving public exhibitions may not be limited to their use, but must be opened to the general public. The burden of reconciling these several rulings rests with the majority.

For these reasons I am constrained to withhold my assent to the conclusions announced in the prevailing opinion.

I am authorized by the Chairman of the Commission to say that he concurs in these views.

COCKRELL, Commissioner, did not hear the argument or take any part in the decision of this matter.

No. 963.

CITY COUNCIL OF ATCHISON, KANSAS,

v.

MISSOURI PACIFIC RAILWAY COMPANY; CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY; AND ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.

Submitted April 27, 1907. Decided April 29, 1907.

Defendants grant certain allowances or free services in the elevation, transfer, mixing, cleaning and other handling of grain at Kansas City, Mo., Argentine, Leavenworth and Kansas City, Kans., which are withheld by them at Atchison, Kans., to which point they have established the same rates as those in force at said other cities. Held, That such practice is unlawful and that defendants should not furnish at Kansas City, Mo., Kansas City, Leavenworth or Argentine, Kans., elevator allowances or other free services in connection with the elevation, transfer, mixing, cleaning, clipping, drying,

weighing, storage, loading out or shipment of grain which are not at the same time granted or furnished in like or equivalent service or allowance to the same degree and extent at Atchison.

Frank Doster for complainant.

Martin L. Clardy for Missouri Pacific Railway Company.

Robert Dunlap for Atchison, Topeka & Santa Fe Railway Com

pany.

Hale Holden for Chicago, Burlington & Quincy Railway Company.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant is incorporated under the laws of Kansas and filed petition herein in the interest of the city of Atchison and in behalf of merchants and dealers engaged in the grain business thereat, complaining that since July 1, 1906, defendants owning and operating terminal grain elevators at Kansas City, Mo., Kansas City, Argentine, Leavenworth and Coffeyville, Kans., have given to persons using them elevator allowances or free service in transferring, cleaning, mixing, clipping and other handling of grain, and have refused to perform like services or give like allowances to elevators and shippers at Atchison, thus subjecting the merchants and shippers there to unjust discrimination.

The defendant, the Missouri Pacific Railway Company, admitted that it is the owner of practically all the capital stock of elevators located at Kansas City, Mo., Leavenworth and Kansas City, Kans., and that they are operated free of charge to the owners and shippers of grain, but the other defendants made general denial of the allegations of the complaint. The defendant, the Chicago, Burlington & Quincy Railway Company, showed that its G. F. O. No. 21-A, I. C. C. 7984, in reference to charges at Kansas City contained the following:

This company will pay cost of transfer from car to car for purpose of releasing foreign equipment or for ascertaining weight;

and that G. F. O. No. 23343, I. C. C. No. 7967, applicable to Atchison, contained the following:

This company will pay cost of transferring grain from car to car for purpose of releasing foreign equipment or for ascertaining weight.

The defendant, the Atchison, Topeka & Santa Fe Railway Company, defended on the ground that the conditions at Kansas City, Mo., Kansas City and Argentine, Kans., differed from the conditions at Atchison so as to justify the practices complained of.

The testimony shows that the rates for all through shipments and as to all, or practically all, local business in force on the lines of the

defendant carriers are and for a long time have been the same to and from Atchison, Kansas City, Mo., Leavenworth, Kansas City and Argentine, Kans. In other words, that defendants have placed Atchison on a parity and equality with Kansas City and other points named as to inbound and outbound rates, and have made it, for all rate-making purposes, a common point" with Kansas City and the other named points. Complainant alleges, therefore, that any allowances granted to or services rendered for shippers at Kansas City, Mo., Leavenworth, Kansas City or Argentine, Kans., which are of value and which affect the rates of transportation or the cost to the shipper of securing same, are unjustly discrimanatory against Atchison and shippers doing business there.

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While, as before stated, the defendant, the Missouri Pacific Railway Company, owns elevators at Kansas City, Mo., Leavenworth and Kansas City, Kans., it does not own or operate an elevator at Atchison. The defendant, the Atchison, Topeka & Santa Fe Railway Company, owns the elevator at Argentine operated by the Santa Fe Elevator Company, and its officers are also officers of the Atchison, Topeka & Santa Fe Railway Company, and they, as well as the employees, are paid by that company. The defendant, the Chicago, Burlington & Quincy Railway Company, owns an elevator at Kansas City, Mo., which is operated by the Murray Elevator Company, but is under the control of the railway company. It does not own or operate an elevator at Atchison.

The testimony of Traffic Manager Crosby, of the Chicago, Burlington & Quincy Railway Company, is that the two rules in the above-mentioned tariffs of that road in regard to its paying cost of transfer at Kansas City and Atchison mean the same thing and are intended to be so applied.

No testimony was offered as to conditions, competitive or otherwise, at Coffeyville, Kans.

Complainant argues that the competitive conditions at Atchison, with its four railroads and handling 8,000,000 bushels of grain annually, are not substantially or radically dissimilar from those which obtain at Kansas City, Mo., with its 16 railroads and handling 75,000,000 bushels of grain annually, and that competition between the three defendant companies can not be radically or substantially different as between the two points.

If an elevator allowance is granted by defendants at Kansas City, Leavenworth or Argentine and is withheld at Atchison, it clearly gives those favored that much advantage in the handling and marketing of grain. The same is true of any free service rendered by a carrier in connection with the transportation of grain for which otherwise the shipper would be required to pay. The defendant carriers