REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant is a voluntary association of business men engaged principally in the buying, selling, receiving, and shipping of grain.

Defendants are common carriers engaged in interstate commerce, owning and operating railroads running into and out of Kansas City, Mo., and Kansas City, Kans.

Complaint sets forth the fact that Kansas City, Mo., is one of the largest grain markets in the United States, to which much of the grain raised in Kansas, Nebraska, Missouri, and Iowa is and has been shipped; that much of such grain is handled by Kansas City dealers on commission for country shippers; that grain in that and other markets is sold by grade or samples; that the laws of the States of Missouri and Kansas require that the grade of each car of grain marketed in Kansas City be ascertained by State officials, called inspectors, who are required to secure from each car a sample of the grain which such car contains; that a certificate as to the grade fixed by the State inspector and the sample secured by him are delivered to the consignee, and that upon grades and samples so delivered all sales are made; that after such sale the purchaser or owner orders the grain to an elevator, mill, or other place on the tracks of the road that brings the car in, or for forwarding via its line, or for delivery to some other railroad; that such order is known as a reconsignment; that it is given while the grain is yet in the car standing on the "hold track" of the railroad that brought it in, where it has been placed for inspection and awaiting reconsignment order; that such reconsignment is given on practically every car of grain coming into that market, as the original consignee does not know until after the sale of the grain what disposition will be made of it or where it will go.

For the privilege of so reconsigning cars of grain no charge is made by defendant carriers if the reconsignment does not carry the shipment off their lines; but if the order does take the shipment off their lines a charge of $2 per car is made, which is known as a reconsignment charge.

Complaint further alleges that the defendant companies operate lines of railroad to the cities of St. Louis, Chicago, and Minneapolis, to which points grain is consigned in the same manner as to dealers in Kansas City, and subsequently reconsigned, and that like charge is not made thereon; that defendants, in carrying out such reconsignment arrangement, do not perform additional service not contemplated in or covered by the freight rate to Kansas City and the switching charge, if any, and that even if additional service is performed the charge of $2 per car is unreasonable and excessive.

Unjust discrimination against Kansas City as compared with St. Louis, Minneapolis, and Chicago is alleged and complaint is made that similar reconsignments are permitted at Kansas City by defendant companies on shipments of other commodities without additional charge therefor, although the practice necessitates the same service. Defendants admit the practices as to inspection, sampling, and reconsignment and the assessment of reconsignment charge, as alleged. They, however, insist that the privilege and the practice impose additional service at additional expense to the carriers, and deny that the charge of $2 per car is either unreasonable or excessive. They deny any discrimination against Kansas City as compared with St. Louis, Minneapolis, or Chicago, and allege material difference of conditions at St. Louis, Minneapolis, and Chicago as compared with Kansas City. They contend that the conditions surrounding the shipment of grain are essentially different from, and therefore not fairly comparable with, those surrounding the shipment of other commodities. As will appear later, the same defendants allege and show that similar charges are made for substantially similar service, due allowance being made for differing conditions at St. Louis, Minneapolis, and Chicago.

The testimony shows that the practice of grain dealers is to consign grain to Kansas City, the carriers placing cars containing grain so consigned upon tracks in their yards reserved for that purpose and known as "hold tracks," where it is inspected and samples are taken. The inspection certificates and samples are delivered at the Board of Trade rooms in Kansas City, and upon receipt of reconsignment orders cars are disposed of in accordance with the terms of orders. The carriers allow forty-eight hours from the arrival of a car within which to reconsign it without the assessment of demurrage charges. The carrier can not know whether a car will be ordered out within an hour after the sample is received at the Board of Trade or will remain twenty-four or forty-eight hours on the hold track. It is obvious that much extra switching service and much extra clerical service must be performed by the carriers under this system as compared with what would be necessary if the shipments were originally consigned to a definite destination and not reconsigned. The practice necessarily detains cars longer than they would otherwise be detained, which is an important question in view of the difficulties experienced by shippers generally in securing transportation facilities in these days of "car shortage."

Another and different interest is involved than that of the carrier and of the owner of the grain so held for reconsignment; that is, the interest of the other shipper who is awaiting anxiously for some car into which to load his product.

Competition and custom have established the practice at Kansas City, as in other places, of the absorption of switching or terminal charges by the carriers to which outbound shipments are given, and defendants therefore absorb their own charges of $2 for reconsignment if the grain is forwarded under reconsignment over their own lines. If the grain is delivered under reconsignment to another road, it carries the reconsignment charge of $2 plus a switching charge, both of which are absorbed by the carrier to which the car is delivered, provided it is destined under reconsignment to a competitive point; that is, a point that is reached by the lines of two or more of the carriers from point of reconsignment, excepting that defendant, the Chicago, Rock Island & Pacific Railway Company, absorbs such charges on all outbound shipments received from other carriers whether to competitive or noncompetitive points.

The evidence shows that when reconsignment charge is paid upon a car of grain that is consumed or milled in Kansas City, the dealer holds the billing and claims absorption of said reconsignment charge on some other car that goes forward from Kansas City.

It is thus seen that the effect of this plan is that the carriers that bring the grain into Kansas City and that furnish and perform the extra service incident to the reconsignment privilege receive compensation for such extra service, which is, in turn, and except only as to a part of the grain that is milled or consumed in Kansas City, paid by the carrier that takes the grain out from Kansas City from its earnings thereon. Any reconsignment charges paid by the dealers at Kansas City and which are not absorbed by some carrier are charged back to and paid by the country shippers of the grain. The sums paid on this account by grain dealers are therefore returned to them and they represent compensation for services actually rendered by carriers. The rates for transportation of the grain are not affected thereby. The carriers hauling the grain out from Kansas City either perform the service at their own cost or shrink their revenues by absorption of the sum paid to another carrier for that service.

Mr. Mann testified that so far as known to him a reconsignment charge is made by all roads at Chicago after forty-eight hours from the arrival of the car. The Atchison, Topeka & Santa Fe Railway Company makes a reconsignment charge at Chicago. Its lines do not reach Minneapolis. The Missouri Pacific Railway Company makes a reconsignment charge at St. Louis. Its lines do not reach Minneapolis. The testimony shows that at Minneapolis a charge of $2 per car is made when a car is set at an elevator or a mill and is ordered to another destination without being unloaded.

It is argued that a carrier bringing grain into Kansas City is required under its tariff rates to make reasonable delivery of such grain, and

that therefore the reconsignment charge is unwarranted. The facts, however, are that, under the reconsignment privilege, instead of delivering direct to a named destination or industry the carrier switches the grain onto the "hold track" and then, upon instructions later received from the purchaser of that grain, switches it out again and makes delivery. Providing and maintaining the hold tracks and the extra service of switching cars to and from such hold tracks impose additional expense and service, seemingly for the sole purpose of granting the reconsignment privilege.

This practice of permitting reconsignment has grown out of the requirements and demands of the members of the Board of Trade, and seems clearly to be an effort on the part of the carriers to accede to the wishes of the dealers and make it possible for them to buy and sell on the Kansas City market in accordance with the rules laid down by the States of Missouri and Kansas and by the Board of Trade itself. It appears to be wholly in the interests of the grain dealers and of Kansas City as a grain market. If no reconsignment privilege was granted, much grain that is now dealt in on the Kansas City Board of Trade would probably pass through to be bought and sold in some other market. The carriers could apparently, under the existing rates for transportation, save much in expense and service if no such practice and privilege obtained.

This same question was tried in the courts of Missouri on complaint of same plaintiff, the Kansas City Board of Trade. In disposing of it the Supreme Court of the State of Missouri said:

The chief grounds of complaint are those affecting the rights of certain grain dealers in Kansas City, and certain railroad companies whose termini are at that city who deny the right of defendant to make a particular charge, called a reconsignment charge," on grain and grain products made by four through lines of railroad, for a service actually rendered, after delivering the grain upon certain tracks, known as "hold tracks," which said service has been performed gratuitously prior to July 28, 1902, and which said charge was absorbed or was refunded in the event of reshipment out of said city over any of said four lines of road.

We are unable to see wherein the public has any interest in the "reconsignment charge," which is paid solely by certain grain dealers and railroads whose western termini are at Kansas City for an additional service not covered by the freight into that city, and which they have the right to charge, provided it be nothing more than what is reasonable for the services rendered. State v. A. T. & S. F. Ry. Co., 176 Mo., 687.

In view of all these facts it is not believed that the charge complained of, namely, the $2 reconsignment charge, is unjust, excessive or discriminatory. An order dismissing the complaint should be

entered.

12 I. C. C. Rep.

No. 888.

J. J. WAXELBAUM, DOING BUSINESS UNDER THE NAME OF J. J. WAXELBAUM & COMPANY,

v.

ATLANTIC COAST LINE RAILROAD COMPANY; SOUTHERN RAILWAY COMPANY; CENTRAL OF GEORGIA RAILWAY COMPANY; SEABOARD AIR LINE RAILWAY; GEORGIA RAILROAD COMPANY; MACON, DUBLIN & SAVANNAH RAILROAD COMPANY; GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY; ATLANTA & WEST POINT RAILROAD COMPANY; WESTERN & ATLANTIC RAILROAD COMPANY; PENNSYLVANIA RAILROAD COMPANY; PHILADELPHIA, BALTIMORE & WASHINGTON RAILROAD COMPANY; AND BALTIMORE & OHIO RAILROAD COMPANY.

Submitted May 21, 1907. Decided June 4, 1907.

1. Under the act to regulate commerce as amended carriers subject to its provisions may not lawfully refuse transportation as therein defined, but they must upon reasonable request afford the same upon established rates filed and kept posted as required by law.

2. The jurisdiction of the Commission and the purposes of the law can not be defeated by the omission or failure of carriers to include in their schedules and to keep posted and open to public inspection the rates, fares and charges for the entire service, both transportation proper and refrigeration, which under the law they are bound to provide.

3. The defendants' charges for the transportation of peaches from Macon and Atlanta, Ga., to Philadelphia, New York, Washington, and Baltimore, including both the charge for carriage and the charge for refrigeration, having been complained of as unreasonable and unjust, after full hearing, Held, That defendants' rates per 100 pounds for the transportation of peaches, other than refrigeration, from Macon and Atlanta, to wit: 81 cents to Philadelphia and New York and 78 cents to Baltimore and Washington, and their refrigeration charge of 12 cents per crate of 42 pounds, minimum carload 550 crates, between such points, are unreasonable and unjust; and that defendants' practices in using one minimum carload requirement for transportation service other than refrigeration and a different minimum carload for refrigeration service is also unreasonable and unjust. Held, further, That the rate for transportation other than refrigeration to Philadelphia and New York on carload shipments should not exceed 76 cents per 100 pounds and to Baltimore and Washington 73 cents per 100 pounds, such rates to apply on a carload mini