the principal defendant was with respect to the route which the shipments might take to destination.

When testifying on his own behalf the complainant not only conceded that he himself had given the principal defendant definite instructions to forward the shipments in question through Denver, but he admitted that he did so in order, for reasons of his own, not to reveal the destination of the wheat to the person from whom he had purchased it. To further carry out this plan of concealment, he first billed the shipments to Denver, and then, while the cars were in transit, reconsigned them to their final destination at California terminals. In other words the complainant, to serve his own purposes, himself directed and controlled the routing of these shipments, and his instructions to forward them through Denver put the principal defendant under the legal obligation to send the cars over that route and fully relieved it of the duty of ascertaining whether they could be forwarded through any other junction point at a lower rate.

It is true that the complainant gave his routing instructions only after he had conferred with the agents of the principal defendant. But whether he was misinformed by them either as to the rate or as to the route over which the rate erroneously quoted was applicable, he assumed to and did definitely control the routing. And this fact brings the case within the principles announced by us in our previous decision. A carrier is required by law to publish the rate and also clearly to indicate the route over which the published rate is applicable. When so published the rate named and the route designated stand as the law, binding as well upon the shipper as upon the carrier. A schedule of rates published in the manner provided by law speaks with equal authority to the shipper and to the carrier, and both are equally chargeable with notice of the rate and of the route over which the rate is made applicable. A mistake by a carrier in responding to an inquiry by a shipper, either as to the rate or as to the route, will relieve neither the one nor the other from the obligation of fulfilling the law's requirements; in either event the carrier must collect and the shipper must pay the rate as published for the route over which the shipments actually move. This general rule is founded not only on the strict language of the law but also upon a sound public policy. Where a shipper gives no routing directions and the carrier forwards the traffic over one route when another route carrying a lower rate is equally available, the Commission holds it liable to the shipper for the difference between the higher rate and the rate applying over the less expensive route. This is a rule of obvious propriety. And the Commission has issued a general permissive order under which carriers may adjust the differences in such cases without resorting to the Commission for special authority. Rule 57, Tariff Circular No. 14-A. This,

however, was not a case of misrouting by a carrier in the absence of directions by the shipper. The complainant, as heretofore indicated, definitely controlled the routing of his shipments, and this fact as definitely relieves the carrier of any liability to him.

The second point now urged upon our attention by the complainant is based on section 4 of the act. As the sum of the local rates in and out of Denver to Reno, which is on the main line, is in excess of the through rate to California terminals, it is insisted that the burden of supporting the reasonableness of the local rates rested upon the defendant, and that this rule of law cures the failure of the complainant to offer any testimony on the hearing tending to show that the local rates were excessive. While complaints must be supported by competent testimony, or such a showing made as to put the Commission upon inquiry as to the merits of the issues raised by complainants, our conclusions in this case were not based upon a technical defect in the testimony. The record showed no need of a through rate on wheat from the points of origin in question to Reno, and we were unwilling, under such conditions, to establish a through rate and make it available retroactively solely for the purpose of awarding reparation to this complainant on this one shipment to that point. To that conclusion we adhere.

The petition is denied, and it will be so ordered.

No. 1017.

LOUP CREEK COLLIERY COMPANY

v.

VIRGINIAN RAILWAY COMPANY (FORMERLY THE DEEPWATER RAILWAY COMPANY), AND CHESAPEAKE & OHIO RAILWAY COMPANY.

Submitted June 18, 1907. Decided November 6, 1907.

1. The complainant, located at Page, W. Va., on the Virginian Railway, 9 miles from its junction with the Chesapeake & Ohio, applies for the establishment of through routes and joint rates, with divisions thereof, for the transportation, in carloads, of coal and coke over these two roads, from Page to destinations on the Chesapeake & Ohio outside of West Virginia, such rates in no case to exceed those applied by the Chesapeake & Ohio from the junction point of the two roads and from other points on the line of the last-mentioned carrier in the same rate group. It is con

ceded that there is now reasonable and satisfactory through movement and handling of through shipments of the traffic involved, and that the through routes are asked for only for the purpose of supporting the application for joint through rates and divisions of the same, it not being shown that either the combination rates applying via the two roads from Page or the Chesapeake & Ohio rates from points on its line are unreasonable, and it further appearing that to make such an order would result in compelling the Chesapeake & Ohio to either discriminate between patrons in the rate group served by it or to reduce its rates materially on an important part of its traffic: Application denied. 2. The law does not require the Commission in all cases where no through routes and joint rates exist to establish them, but only empowers it to do so in proper cases with the manifest intent of giving effect to the general purposes of the act to regulate commerce by securing reasonable facilities to the public and preventing unreasonable and unjust rates, practices, and discriminations, and in the exercise of this authority the Commission is bound by the same considerations of justice and fairness as it is in the exercise of the rate-making power in other respects. 8. Where neither the interests of the public nor the ends of justice as between the parties directly interested will be promoted by the establishment of through routes and joint rates and divisions thereof, a proper case for the exercise of the authority invoked has not been shown.

4. Disparity in rates between points on different roads serving shippers of coal in the same territory does not necessarily constitute such inequality as to justify the establishment of joint through rates from points on the road farthest removed from the destination points on the basis of rates from points on the other road at the expense of the latter, especially when its rates are not shown to be unreasonable.

5. A through rate for transportation over a line composed of two or more separate roads greater than would be reasonable and sufficient if the same transportation were over a single road is not in all cases unjust.

Brown, Jackson & Knight, for complainant.

E. W. Knight, for the Virginian Railway Company.

H. T. Wickham, for the Chesapeake & Ohio Railway Company.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

This is an application by complainant, supported by the Virginian Railway Company, one of the defendants (designated and known at the time of filing of the petition as the Deepwater Railway Company and substituted therefor by stipulation of counsel), for the establishment of joint through routes from Page, W. Va. (a point on the Virginian Railway, 9 miles from its junction with the Chesapeake & Ohio), to points outside of West Virginia, and for the fixing of the same through rates on coal and coke from Page as are in effect from points located on the main line and branches of the Chesapeake & Ohio Railway in the Kanawha Coal District; also for the establishment of divisions of such rates between the Virginian and the Chesapeake & Ohio Railway Companies.

Complainant's contention is that the present combination rates from Page are unreasonable and unduly discriminatory against complainant and in favor of other coal operations in the same coal district on the Chesapeake & Ohio main line and its branches as well as on independent branches or connecting lines hereinafter referred to more fully.

The application is resisted by the Chesapeake & Ohio Railway Company on the ground that the granting of same would result in unjust discrimination in favor of complainant as against other coal and coke operators in this district located on or served by the Chesapeake & Ohio Railway, unless the latter should reduce its rates from other points, and it is urged that this would result in an unreasonable diminution of its revenue derived from this traffic. It denies that the rates are unreasonable or unduly discriminatory as charged.

The Chesapeake & Ohio Railway Company attempted to show that the stock of complainant is held to a large extent, if not entirely, by the Virginian Railway Company, but this contention is not borne out by the record. It was also claimed by the Chesapeake & Ohio Railway Company that the Virginian Railway is not a local line, but is a great east and west road extending from the coal fields to the seaboard at Sewells Point, and which is projected to the Great Lakes, many miles having been completed and the residue being now under construction; that it is an independent and competing line with a capital stock of $33,500,000.

Complainant is the owner of about 24,000 acres of land situated in the Kanawha district coal fields of West Virginia, and its chief coal and coke operations are at Page, on the Virginian Railway, 9 miles south of Deepwater, the junction point with the Chesapeake & Ohio Railway.

The Virginian Railway, as projected, will extend from Sewells Point, on Hampton Roads, westward to said Deepwater station in West Virginia, a distance of 446 miles. The road has been completed for about one-half the distance, and the residue is under construction. The expectation is to have it in operation over the entire route in about one year. Surveys, experimental in their nature, have been made for an extension beyond Deepwater.

An important purpose of the construction of the Deepwater Railway in connection with the Tidewater Railway, both having been recently merged into the Virginian Railway Company, is to provide an additional outlet for coal and coke from the Kanawha and New River coal fields. The Virginian Railway delivers coal and coke to the Chesapeake & Ohio at Deepwater from complainant's mines and others along its line, and is rapidly pushing its work of construction and connection with coal operations.

There are mines located directly upon the main line of the Chesapeake & Ohio Railway, but at least 85 per cent of the coal and coke hauled by this road comes off the branches, and these branches are either owned by the Chesapeake & Ohio or by independent railway or coal companies. Where the branch is owned by the Chesapeake & Ohio Railway it performs all the switching and other services from the mines to its main line, but in those cases where the branch is otherwise owned such independent companies are at all the expense of getting the coal and coke to the rails of the Chesapeake & Ohio road.

In order to equalize the interests of the competing mines on its line and branches, the Chesapeake & Ohio Railway has established a uniform freight rate, east and west, from all junction points with its rails in the coal districts to any given point outside of West Virginia on coal and coke originating on its line and branches.

Complainant's coal operations are located on the Virginian Railway in the Kanawha district coal fields, and its mines have a capacity of from 1,000 to 1,200 tons of coal, and between 500 and 600 tons of coke per day. Complainant began shipping coal in May, 1905, and up to March 1, 1907, it had shipped 238,000 tons of coal and coke, and had paid the Virginian Railway Company 10 cents per ton to transport the same from its mines to Deepwater, an aggregate of $23,800, during said period.

At Deepwater the Chesapeake & Ohio's Kanawha District coal rates apply on shipments to points outside of West Virginia, east and west, these rates being $1 per ton to Cincinnati and $1.29 per net ton to Newport News. On April 15 and May 1, 1907, the Chesapeake and Ohio Railway made a general advance in coal rates of about 5 cents per ton. This company refuses to apply the district rate from complainant's mines, but charges freight from Deepwater, the junction point. Complainant is therefore obliged to pay the sum of the two rates, viz, 10 cents per ton to the Virginian Railway and the regular district rate to the Chesapeake & Ohio road. The controversy involves, first, the question of applying the Chesapeake & Ohio district rates to shipments from Page, and, second, the divisions of such joint through rates between these carriers.

All the cars needed by complainant are furnished by the Virginian Railway, and it performs all the service between the mines and Deepwater, which includes hauling the cars 9 miles from the junction to the mines, placing them in position to be loaded, and delivering them on the Chesapeake & Ohio tracks at Deepwater ready to be incorporated into trains. For performing this service the Virginian Railway receives 10 cents per ton or about $5 per car. The charge for a switching service varies from $1 to $5 per car, and may be as expen