plaint, which should thereupon have been dismissed. But here the defendants, justified by their answer the 12-cent rate, and the complainant had no notice until the case was called for trial of the intention of the defendants to establish a lower rate. Under these circumstances, we find, upon the admission of the defendants, that the rate of 12 cents is unreasonable, and that a rate of 11 cents ought not to be exceeded for the future.

No. 880.

BIRMINGHAM PACKING COMPANY

v.

TEXAS & PACIFIC RAILWAY COMPANY; VICKSBURG, SHREVEPORT & PACIFIC RAILWAY COMPANY; ALABAMA & VICKSBURG RAILWAY COMPANY, AND ALABAMA GREAT SOUTHERN RAILROAD COMPANY.

Submitted October 22, 1907. Decided November 18, 1907.

Defendants having been unable to agree upon the divisions of a joint rate on beef cattle from Fort Worth, Tex., to Birmingham, Ala., put in effect by them in accordance with an order of this Commission, made application to fix the divisions; Held, upon the peculiar facts of this case, that considering the terminal charges of the receiving and the delivering lines and the ferry charge of the intermediate line the rate should be divided upon a mileage basis, but this conclusion should not be taken as implying that all joint rates established by the Commission should necessarily be divided upon a mileage basis.

E. L. Sargent for Texas & Pacific Railway Company.

T. L. Steele for Vicksburg, Shreveport & Pacific and Alabama & Vicksburg Railway Companies.

E. Schryver for Alabama Great Southern Railroad Company.

SUPPLEMENTAL REPORT OF THE COMMISSION.

PROUTY, Commissioner:

On March 7, 1907, the Commission established in the above case a joint rate of 50 cents per 100 pounds upon beef cattle from Fort Worth, Tex., to Birmingham, Ala., 12 I. C. C. Rep., 29. This rate was put into effect by the defendants in accordance with the order of the Commission, and shipments have since been moving under it. Some weeks ago we were advised by the defendants that they had been unable to agree upon the divisions of the rate and that they therefore made application to the Commission to fix these divisions. The case was accordingly set down for hearing at Washington,

whereupon all the defendants waived a formal hearing and submitted statements of their respective claims, upon which the Commission was asked to proceed.

The railways involved in this through line are as follows:
Texas & Pacific, from Fort Worth to Shreveport;

Vicksburg, Shreveport & Pacific, from Shreveport to Vicksburg;
Alabama & Vicksburg, from Vicksburg to Meridian, and
Alabama Great Southern, from Meridian to Birmingham.

The Vicksburg, Shreveport & Pacific Railway and the Alabama & Vicksburg Railway are operated under a common management and may be considered as one road in disposing of this matter.

At the time of the hearing there was in effect a rate on beef cattle from Fort Worth to Birmingham of 63.4 cents per 100 pounds, or $139.50 per car, upon cars 36 feet in length carrying 22,000 pounds. This rate was made up by combining a rate of 22 cents per 100 pounds over the Texas & Pacific from Fort Worth to Shreveport with a rate of $50 per car from Shreveport to Meridian and $40 per car from Meridian to Birmingham. Stating these figures both in cents per 100 pounds and in dollars per car the respective divisions of the various railroads of that rate were as follows:

The evidence upon the original trial, in January, 1907, showed that at that time there was in effect a rate on packing-house products and another rate on fresh beef, over this same route, between Fort Worth and Birmingham. These rates and the divisions among the several carriers are given below:

As already suggested, the rate on beef cattle was made up by taking the local rate of the Texas & Pacific from Fort Worth to Shreveport and adding to it certain arbitraries between Shreveport and Meridian and Meridian and Birmingham. These arbitraries were not, however, the local rates proper between those points, which are:

From Shreveport to Vicksburg-
From Vicksburg to Meridian_

From Meridian to Birmingham__

Per car.

$45

26

40

The Texas & Pacific claims that in dividing the new rate we ought to proceed upon the basis of the divisions of the old rate, shrinking the share of each company proportionally. It will be seen, however, as bearing upon that claim, that the division of the old rate was apparently an abnormal one, due without doubt to some competitive condition not disclosed by this record. Under that division the Texas & Pacific received much more than it would have received upon a strictly local combination, and much more than it did receive for the product of the live animal when carried either as fresh meat or as packing-house products.

The respective distances by each line and the percentages which would result if this rate were divided upon a mileage basis are given below:

The Texas & Pacific Company pays a switching charge from the Fort Worth stock yards at Fort Worth. While the amount of this does not definitely appear, we understand from other investigations that it is not in excess of $2 per car. The line from Shreveport to Meridian transfers by car ferry across the Mississippi at Vicksburg, for which service it pays, in case of live stock, $5 per car. The plant of the Birmingham Packing Company is not located upon the rails of the Alabama Great Southern, but is at North Birmingham, upon the line of the Louisville & Nashville, and the Alabama Great Southern absorbs $5 per car for the switching service from its iron to the plant of the complainant.

Considering the terminal charges of the receiving and the delivering lines and the ferry charge of the intermediate line, we are of the opinion that, in the case before us, this rate will be fairly divided upon a mileage basis, and shall so order. This conclusion applies,

however, only to the peculiar facts of this case, and must not be taken as implying that the Commission is of the opinion that joint rates established by it should necessarily be divided upon that basis.

No. 997.

WELEETKA LIGHT & WATER COMPANY

v.

FORT SMITH & WESTERN RAILROAD COMPANY.

Submitted October 22, 1907. Decided November 4, 1907.

1. While retaining the right to control the location of switch tracks to private industries in accordance with the evidence, the Commission is disposed, in recognition of the risk that arises from such interruptions of through rails, to leave the location of such tracks largely to the discretion and wisdom of the carrier.

2. The practice among carriers of repaying advancements made by shippers for the construction of switch tracks by making an allowance of a definite amount on each carload of freight shipped to or from their manufacturing plants is disapproved on the ground that it presents too much the appearance of a purchase of property by the carrier with transportation, this being contrary to law. While settlements may be based on the number of carload shipments, repayments must not be made out of the rate but out of available funds at the end of definite intervals. A copy of such contracts ought to be filed with the Commission and when the transaction is completed a verified statement of it by a responsible officer of the company ought also to be filed here.

F. W. Casner for complainant.

A. C. Dustin and J. J. Gibson for defendant.

REPORT OF THE COMMISSION.

HARLAN, Commissioner:

This is an application under section 1 for an order requiring the defendant to construct and maintain a switch track connecting its main line, as it passes through the town of Weleetka, in Indian Territory, with the plant of the complainant, a company incorporated under the laws of that Territory and engaged in the business of supplying light and water to the industries and the resident population of Weleetka.

The complainant's plant and power house are situated on block 52 in Woodland Park addition to Weleetka, the northwest corner of

which touches the right of way of the defendant. Prior to December, 1905, when the property and plant in question were owned by another company, a spur track connecting it with the main tracks of the defendant had been built by the defendant under a contract that required the cost to be repaid to the defendant; this contract was evidenced by a note of some $400, payable to the defendant by the then owner of the property. During the month of March, 1906, the company that then owned the property became a bankrupt, and its assets were liquidated by an assignee in bankruptcy, but no part of the note in question seems to have been paid. The defendant, desiring to make some use of the ties and rails of which the spur track had been constructed, took them up and moved them to another point in the same town, where it built a switch track to another industry; subsequently the present complainant purchased the plant in question at a sale by the assignee in bankruptcy; and later made application in writing to the defendant for the construction of a new switch track. There is some controversy as to whether the defendant had definitely refused a switch connection, the complainant maintaining at the hearing that it had, while the defendant insisted that the complainant had refused the terms upon which the defendant had offered to build such a connection.

Without attempting to discuss the testimony on this point, it will suffice to say that the defendant, at the hearing, definitely offered to construct such part of the switch track as the complainant might wish it to construct. It appears that the complainant owns some ties and rails that are available for such use and had indicated its willingness to construct the switch track up to the outer rail of the main track of the defendant's line. The defendant now offers to complete the connection from this point upon condition that the complainant will first advance the cost, which is estimated by the defendant at the sum of $250. After the connection has been completed, the defendant is willing to repay the cost to the complainant by making it a definite allowance of $2 for each car placed upon the switch track by the defendant, excluding, however, such cars as may be switched there by the defendant from the lines of competing carriers in Weleetka. The only real issue therefore left between the parties is as to the location of the switch connection. The heavy traffic of the defendant comes from the south, and a switch connection meeting its main track toward the south would obviously present greater risks and dangers than a switch track joining its lines toward the north. The defendant is willing, under the conditions set forth, to replace the switch track formerly serving this property-that is to say, to construct a switch track that joins its main track to the north of the plant-but it is unwilling and regards it as hazardous to have a switch connec