REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainants are partners in mercantile business at Geneva, N. Y., engaged in buying and shipping farm produce and in retail coal business. In 1904 they requested the Lehigh Valley Railroad Company to make switch connection with a proposed siding to a certain property owned by complainants. Verbal understanding was reached and some preliminary work was done. A proposed written agreement was submitted by defendant to complainants for signature which contained a stipulation that the switch and siding should never be used for carrying on coal business. Complainants refused to sign that agreement, and defendant refused the switch connection. An action was instituted by complainants in court, but was not pursued with any energy or vigor, and was abandoned.

Subsequent to the amendment to the act to regulate commerce, approved June 29, 1906, complainants, without having renewed request upon defendant, petitioned the Commission for an order requiring the defendant to construct and maintain such switch connection.

Defendant, answering, averred that the original oral understanding between complainants and defendant included the prohibition against conducting a coal business on or in connection with the proposed switch and siding, and that defendant's refusal to construct the switch connection was due to complainants' repudiation of the oral agreement. On this point the testimony is contradictory.

No buildings have as yet been erected upon the property upon which the siding was to be located.

The Commission does not think that a carrier can reserve to itself, or exercise, the right to determine as to what commodities shall or shall not be moved over a switch connection and dealt in by a dealer who is located upon a siding which is connected with carrier's line by such switch, except in so far as is necessary and proper to afford protection to life and property against the handling or storage of dangerous commodities, such as explosives or highly inflammable liquids.

Sidings and connections of this character are frequently, if not generally, located within the corporate limits of cities or towns. It must, therefore, be remembered that in determining whether or not such connection will be ordered by the Commission in a case of which it has jurisdiction, the power and authority of those who are charged with administration of the affairs of the municipality, including its health officers, as well as the rights of the owners of adjoining and neighboring property, must be respected and be given full consideration.

The act to regulate commerce, in section 1, provides

Any common carrier subject to the provisions of this act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private sidetrack which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application therefor in writing by any shipper, such shipper may make complaint to the Commission, as provided in section thirteen of this act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor and the Commission may make an order, as provided in section fifteen of this act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the Commission, other than orders for the payment of money.

This amendment conferred upon the Commission power and authority which it did not theretofore possess. The provision is applicable only when a common carrier fails to install and operate a switch connection "on application therefor in writing by any shipper." Obviously it is necessary that such application shall be made subsequent to the date upon which the law became effective and upon which the Commission's authority was created.

In this case no such application has been made since 1904, and the Commission is therefore without jurisdiction of this complaint. The prayer for reparation is based largely or almost entirely upon estimated business losses; in other words, upon an estimate of the profits that would have accrued to complainants if switch connection and buildings had been constructed. Manifestly it would be difficult to accurately estimate the amount of reparation, if any, that should be awarded on such a claim; but as in this case the Commission is without jurisdiction the prayer for reparation can not be entertained. An order will be entered dismissing the complaint.

12 I. C. C. Rep.

23130-08- -15

No. 894.

J. E. WALKER

V.

BALTIMORE & OHIO RAILROAD COMPANY AND UNITED STATES EXPRESS COMPANY.

Submitted May 2, 1907. Decided June 10, 1907.

66

99

1. Defendants operate, for the convenience of subordinates, a parcels express from Philadelphia, Pa., to certain points upon the Baltimore & Ohio Railroad, whereby packages of not more than 50 pounds can be sent to such points by affixing a stamp, the charge for which varies according to weight. Complainant, an occasional but not a regular patron of the road, complained in September last that he was denied, prior to August 28, 1906, such privilege, upon the ground that he was not a patron of the road. Persons to whom complainant sent packages were also occasional passengers on this road. Since August 28 the privilege has been extended to complainant and the public generally, but defendants insist that it is their right to restrict the privilege to the patrons of the road, for whose benefit it is intended. Held, Upon the facts existing previous to amended act that the complaint was well founded, because to apply to complainant a particular rule not applied to the general public is clearly an unjust discrimination; but that defendants were not in violation of law when complaint was filed and hearing had.

2. The defendant railroad company transports packages of a certain kind free only when they belong to commuters or to a person who is a passenger upon the train. No opinion is expressed upon the lawfulness of this practice, nor as to whether such defendant might, as a part of the contract of sale of a commutation ticket, provide that the privileges of this parcels express should be extended to the holder of such ticket or that the purchase of a ticket to one of these stations should carry with it the right to purchase and use a certain number of these stamps.

3. The defendant express company is a common carrier engaged in the transportation of packages like those carried by the parcels express between the same points, and it is the duty of that defendant to establish for the benefit of the public an adequate service at a reasonable compensation. Whether the amount of these stamps would afford such compensation is not now considered.

J. C. Walker for complainant.

W. B. Linn for Baltimore & Ohio Railroad Company.

G. W. Field for United States Express Company.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The defendants operate from Philadelphia, Pa., to certain points upon the Baltimore & Ohio Railroad, some of which are in the State of Delaware, what is known as a "parcels express," and the complaint is that they decline to admit the complainant to the benefits of this service, thereby discriminating against him.

Previous to 1890 the Baltimore & Ohio Railroad Company carried in its baggage cars without charge parcels of various kinds from Philadelphia to its outlying stations in the vicinity of that city. Its purpose in so doing was to enable residents in these suburban towns to readily transport articles purchased in the city to their homes, thereby increasing the convenience of living in these localities and stimulating travel upon the line of the railroad. As the amount of this business increased it was found that much confusion and dissatisfaction resulted, and for the purpose of putting the business upon a workable basis the present system was adopted.

Under this arrangement packages of not more than 50 pounds in weight can be sent from Philadelphia to these outlying stations by affixing a stamp. The charges for these stamps are as follows: For a package under 10 pounds, 5 cents;

For a package from 10 to 25 pounds, 10 cents;

For a package from 25 to 50 pounds, 15 cents.

Certain articles, like money, jewelry, and other valuable and bulky packages are not carried.

These stamps are sold at the various stations of the railroad company to which the service is available, and also and principally at the Twenty-fourth and Chestnut Street station of the defendant railroad in Philadelphia. A person desiring to use this service purchases the proper stamp, affixes it to the package, and delivers the package to an agent of the defendant express company at Twentyfourth and Chestnut streets, who cancels the stamp, bills the package to the destination named, and deposits it upon the floor of the baggage room. The packages are here taken possession of by the employees of the railroad company, are transported in the baggage cars of that company to destination, and are there delivered by the railroad company upon application to the party to whom they are addressed.

The express company provides and pays the agent at Twentyfourth and Chestnut streets. It also furnishes the services of a person known as the superintendent of the parcels express, whose business it is to exercise a general oversight over these operations. If a package is lost or if complaint is made, it is the business of this per

son to look into the matter and correct it, and to this extent he has authority over the employees of the railroad company. For these services the express company receives the entire receipts from the sale of these stamps. All other services in connection with the handling of these parcels is rendered by the railroad company without compensation.

The purpose of the railroad company, as already indicated, in extending this free service is to stimulate suburban travel by adding to the convenience of living in these suburban towns. Some attempt has been made in the past to restrict this service to such patrons of the railroad, and as a general rule these packages are either sent by or for the benefit of such persons, but no definite regulation to that effect has been adopted and enforced.

No tariffs governing this business have ever been filed with the Commission. Notices have been posted in the various stations of the defendant giving the terms and conditions under which such packages will be received. It is provided by these notices that packages of eatables will be carried in the baggage cars of the company free up to a certain weight and at a small compensation when over that weight, provided the package is for a commuter or is carried upon the train with a passenger; but no such limitation is put upon the right to buy and use these stamps for the purpose of sending other packages.

The complainant has in the past desired to send packages in this manner from Philadelphia to friends of his at Hockessin, Del., one of the stations to which this arrangement extends, and has been in some instances refused this privilege upon the ground, apparently, that he was not a patron of the road. He himself lives at some distance from Philadelphia upon the line of the Baltimore & Ohio. He is not a commuter, nor is he a regular patron of that railroad; but he does frequently use it in going to and from Philadelphia and upon other trips. The same was true, in substance, of the persons to whom he desired to send these packages.

At the time the complainant was refused this privilege it was accorded to the public generally and without question at most places, although there seems to have been some feeble attempt to limit its use in the sending of parcels to Hockessin. Since the amended act took effect, August 28, 1906, the privilege has been extended to the complainant and all other members of the public, but the defendants insist that it is their right to restrict it to the patrons of the road, for whose benefit it is intended, and ask the opinion of the Commission upon that point. The complaint was filed September 6, 1906.

Upon the facts existing previous to August 28 last the complaint was well founded. To select the complainant and apply to him a