to various points in Oklahoma Territory, Indian Territory, and the adjacent States over the line of the St. Louis & San Francisco to a junction point with the defendant, the Missouri, Kansas & Texas Railway Company, and thence by said defendant line to destination. The defendant railway company established a distance tariff for the transportation of these commodities between points upon its own line, and these rates apply upon its local shipments from the junction point to the destination of the traffic. It provides, however, by a schedule regularly issued for that purpose, that upon traffic received from connections it will exact an arbitrary of 5 cents per 100 pounds over and above its regular local rate, so that the complainant, in shipping from its mill to some point upon the Missouri, Kansas & Texas Railway, is compelled to pay to that company not only its regular local rate from the point of junction to the point of delivery, but an additional sum of 5 cents per 100 pounds. The complainant insists that the application of this arbitrary is unlawful, asks that an order may be issued directing the defendant to cease and desist from imposing it in the future, and claims reparation by reason of having been compelled to pay it in the past.

The defendant puts in force this arbitrary for the purpose of protecting its traffic-that is, for the purpose of enabling mills upon its own line to sell to territory served by its line, so that it may enjoy the entire haul upon that business, whereas, if it receives such traffic from mills located upon other lines it often obtains but a comparatively short haul. While a railway may protect its traffic by any proper means, the enforcement of this rule might be carried to such extent as to absolutely prohibit every mill not located upon the line of the defendant from selling upon its line, and, indeed, the testimony in this case shows that the arbitrary of 5 cents per 100 pounds has, in a great measure, produced this effect. It seldom happens that a railroad should be permitted to charge more on through business than its regular local rate, where that local rate is sufficiently high for the local service. We are of the opinion that in the present case the imposition of this arbitrary by the defendant is unjust and

unreasonable.

The traffic manager of the defendant testified upon the hearing of this case, on January 31, that his company had finally decided to desist from the imposition of this arbitrary and had filed a tariff to that effect which would take effect during the month of February. It appears upon reference to our files that such a cancellation was filed and did become effective February 11, so that the arbitrary is not now imposed.

The complainant testified, and the defendant conceded, that shipments had been made from its mill over the line of the defendant to

various points in Indian Territory upon which this arbitrary had been paid in the following amounts and upon the following dates:

We find that the above sums were paid by the complainant to the defendant under protest on account of the 5-cent arbitrary as above stated; that the imposition of said arbitrary was unreasonable and unjust and unlawful, and that the rates charged complainant by the defendant for transportation over its line were excessive by the amount of said arbitrary of 5 cents and by the amounts above specified.

The complainant is therefore entitled to an order for the repayment of these sums by the defendant, provided the Commission has jurisdiction in the premises. With respect to the last payment of $28.80 the jurisdiction is not denied, but it is insisted that with respect to the other payments the Commission can not entertain the complaint for the reason that when the shipments were made it had no jurisdiction over railroad transportation in the Territories of the United States.

Under the original act jurisdiction was given over shipments "from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia." These shipments were all from a point in Oklahoma Territory to various points in Indian Territory, and it is therefore clear that without the amendment of August 28, 1906, the Commission had jurisdiction over the matters complained of. That amendment conferred jurisdiction over transportation entirely within a Territory, which was not given by the act before. Reparation will therefore be ordered for the entire amount, $113.90, with interest from September 28, 1906.

After service of the complaint in this case the defendant filed an answer justifying the imposition of the 5-cent arbitrary complained of. At the time of the hearing this arbitrary was still in effect, although a tariff had been filed removing it. It has now ceased. Under these facts the Commission deems it the better practice to issue an order requiring the defendant to cease and desist from putting such arbitrary in effect for two years in the future. While this is not probably necessary in the present case, complications might arise under a different practice. Had the defendant, before the expiration of the time within which it was required to answer, filed its tariff withdrawing the arbitrary instead of justifying it by its answer a different situation would have been presented.

No. 883.

PONCA CITY MILLING COMPANY

v.

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.

Submitted January 31, 1907. Decided March 7, 1907.

Decision in Blackwell Milling & Elevator Co. v. M., K. & T. Ry. Co., 12 I. C. C. Rep. 23, cited and applied. Complainant awarded reparation.

W. C. Tetirick for complainant.

J. E. Du Mars for defendant.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The Ponca City Milling Company is a partnership consisting of E. L. Donahoe, D. J. Donahoe, and J. J. Donahoe, doing business under that firm style at Ponca City, Okla. The complaint in this case is the same as in that of the Blackwell Milling Company v. Missouri, Kansas & Texas Railway Company, supra, and only the matter of reparation need be referred to here.

The complainant firm made a shipment on May 15, 1906, of two carloads from Ponca City to Maud, Ind. T., which passed over the lines of the Atchison, Topeka & Santa Fe to Shawnee and from there to destination via the line of the defendant. The amount exacted by the defendant on account of this 5-cent arbitrary was $12.09 upon one carload and $12.83 upon the second carload. On August 1, 1906, the complainant made a third shipment over the same route upon which the arbitrary amounted to $12.50. These sums, aggregating $37.42, were paid by the complainant under protest.

On October 12, 1904, the complainant shipped from Ponca City to Hominy, Okla., a carload of flour, which was transported by the defendant from Guthrie to Hominy. At that time the defendant had not yet filed its tariff exacting this arbitrary, but it did refuse to apply the commodity rate upon grain and grain products which was in force upon its line to shipments received from connecting lines and did insist that such shipments should pay the regular class rates. The difference between the class rate exacted and the commodity rate which would have been applied to this shipment had it originated at Guthrie was $56.40. The case does not show whether this was paid under protest or not.

We find that the defendant ought to have transported all the above shipments at the rate which would have been applied had the shipment originated at the point where it was received by the defendant from its connection; that the exaction of any additional sum, either by way of arbitrary or a forced application of the class rate, was unjust and unreasonable, and that the rates charged by defendant and paid by the complainant were excessive by the amount of the difference between its local rates and what it exacted upon this traffic. The question is, therefore, whether the Commission has jurisdiction to award reparation in the above sums.

The shipment from Ponca City to Hominy was made October 12, 1904, and was between two points in the Territory of Oklahoma. According to the opinion expressed in the case just preceding, this Commission had no jurisdiction over this shipment at the date when it moved, nor was the exaction of the class rate in violation of the act to regulate commerce at that time. Had this shipment moved subsequently to August 28, 1906, this would have been otherwise. An order will be made for the payment of $37.42, being the amount on the three shipments which moved from Oklahoma Territory to Indian Territory, with interest from August 1, 1906.

No. 909.

J. B. HARRELL

v.

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.

Submitted January 31, 1907. Decided March 7, 1907.

A complaint of the unreasonableness of a rate on coal from St. Louis, Mo., to Oklahoma City, Okla., as applied to shipments originating in West Virginia, covering a total distance of over 1,200 miles, held to present no question of practical importance in view of the proximity of coal fields in Oklahoma, Arkansas, and Kansas, and also the much shorter distance from Colorado and Missouri, and dismissed without prejudice in case the unreasonableness of the rate should become of actual consequence hereafter.

J. B. Harrell for complainant in person.

J. E. Du Mars for defendant.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The complainant is a business man residing at Oklahoma City who uses a considerable quantity of coal in warming his buildings.

The Missouri, Kansas & Texas Railway Company, the defendant, operates a line of railroad from St. Louis, Mo., to Oklahoma City, Okla., and the complaint is that the rate on coal charged by the defendant from St. Louis to Oklahoma City is excessive.

The complainant testified that the prices which he was compelled to pay for coal at Oklahoma City seemed to him utterly exorbitant, and that he took under advisement the possibility of obtaining his supply of fuel from the West Virginia fields. He learned upon inquiry that he could obtain a rate of $2.50 for the 700 miles from the mine up to St. Louis, but that the rate from St. Louis to Oklahoma City was $4.50, for a distance of about 540 miles. Deeming this excessive, he filed this complaint.

Oklahoma City is situated 120 miles from McAlester, the center of the McAlester coal district. It is also within a comparatively short distance of the Arkansas and Kansas coal fields and much nearer the fields of Colorado and Missouri than it is to West Virginia. It is apparent that coal for fuel consumption at Oklahoma City could not be and ought not to be brought from mines 1,200 miles away. If the coal rates of the defendant are to be reduced in a way to be of practical benefit to the people of Oklahoma, the reduction should be in its rates from near-by mines and not in this rate from St. Louis.

The rate complained of is probably too high, but it would require a much more extended investigation than has been conducted in this case to show what that rate ought fairly to be. Since the question is at the present time of no practical importance to the complainant, and since the Commission is fully occupied in dealing with matters which are of practical importance, it has not seemed advisable to prosecute the investigation far enough to form an opinion. The complaint will therefore be dismissed without prejudice to the right of the complainant or any other person to call in question the reasonableness of this same rate should that rate come to be of actual consequence in the future.

12 1. C. C. Rep.