RAISERS' ASSO. V. C. B. & Q. R. R. CO. ET AL.

515

nce that was not a "beginning" of proceedings, ctly a new proceeding and not, therefore,

void orner hearrers to desist from making any hatever. r.1.

the question can arise is that "red to in the opinion of the

ay now have before it the dify our order, if erroneous ritory, which was as follows: nd west of the Galveston, Harrisid the Houston, East & West Texas on the former and excluding those on in Indian Territory and Oklahoma TerriKansas & Texas Railway, the Rock Island St. Louis & San Francisco Railroad and the

Is were made October 1, 1896, and were, as a rule, 5 ounds. In February, 1899, rates from this same terrierally advanced 2 cents per 100 pounds, and in Decemsame year there was a second advance of 3 cents, making a ance of 5 cents per 100 pounds and leaving in effect a rate nat higher than before the reduction of 1896. In the spring of these rates were again increased 3 cents per 100 pounds, and this the rate now in effect.

There is another phase of this matter. Cattle from much of the territory involved can be marketed at several different points, like Chicago, St. Louis, Kansas City, and Omaha, and the rate is an important factor in determining to which of these markets they shall be sent. For many years previous to 1894 a certain relation in rates had been maintained between these markets. If any change was made to one market, a corresponding change was ordinarily made to all others. When this $2 charge was imposed at Chicago no similar charge was made elsewhere, and the cost of transporting live stock to Chicago was increased by that amount, as compared with these other competitive markets. The complainants insist that this was an undue discrimination against Chicago.

We held, in City Council of Atchison v. Missouri Pacific Ry. Co: et al., 12 I. C. C. Rep. 111, that where the defendants had for a long time treated certain Missouri River points as entitled to common rates and facilities and had thereby built up grain markets at these points, they must afford at one the same services in handling grain which they accord at others. Upon the same principle these carriers must not, in the absence of some justifying excuse, impose a terminal charge at Chicago and not at other markets; and we are further of the opinion that it is incumbent upon the defendants to show what 12 I. C. C. Rep.

1, 1894, upon the basis of a delivery at the stock yards, we think these carriers may fairly impose a charge which will, on the average, recoup them for the additional expense of delivery entailed by this charge of the Stock Yards Company.

As already said, the defendants insisted in the former case that this whole matter had become res judicata by the dismissal of the petition brought to enforce the order of the Commission, and they entered a special appearance under benefit of this claim in all proceedings subsequent to that decision. Some, and perhaps all, of these defendants claim that this suit upon the same subject-matter is for the same reason barred.

It would seem plain that proceedings before this Commission can not be made the subject of judicial estoppel. The decision of a court once made is final, because, for one reason, the facts upon which that decision rests are always the same; but the facts upon which controversies before this body are determined vary from day to day. A rate, regulation, or practice may be unreasonable now, although a year ago it was entirely reasonable.

This Commission has held that while it will not, ordinarily, reexamine a matter which has been fully heard and passed upon unless changed conditions are shown, this is for reasons of convenience and not because of any legal requirement. Railroad Commission of Kansas v. Atchison, Topeka & Santa Fe Ry. Co., 8 I. C. C. Rep., 304, 308; Cattle Raisers' Association of Texas v. Chicago, Burlington & Quincy R. R. Co. et al., 10 I. C. C. Rep., 83, 106. The Supreme Court of the United States has apparently declared that the determination of a rate for the future, which is the function exercised by the Commission in this proceeding, is legislative rather than judicial. Reagan v. Farmers' Loan & Trust Co., 154 U. S., 362; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S., 479.

Exactly what the effect might be upon the right of the Commission to reexamine at some subsequent time a particular rate if the court, upon proceedings for that purpose, should restrain the enforcement of an order of the Commission putting in a substitute for that rate is not considered. We hold that a decree dismissing the bill brought to enforce an order of this Commission made previous to the amendment of June 29, 1906, is not a bar to the right of the Commission to examine with respect to the present time the same rate involved in that proceeding.

It may be noticed that this question can not arise as to most of the rates involved here. The Supreme Court, in dismissing the petition of the Commission, expressly stated that its action should not prevent the taking of subsequent steps with respect to all territory not covered by the reductions of 1896. The defendants objected to a reopening

of the original case, since that was not a "beginning" of proceedings, but the present suit is strictly a new proceeding and not, therefore, obnoxious to that objection.

The only territory about which the question can arise is that covered by the reductions of 1896, referred to in the opinion of the Supreme Court. In order that the court may now have before it the necessary information upon which to modify our order, if erroneous for this reason, we here define that territory, which was as follows:

The entire State of Texas north and west of the Galveston, Harrisburg & San Antonio Railway and the Houston, East & West Texas Railway, including stations on the former and excluding those on the latter; also all stations in Indian Territory and Oklahoma Territory upon the Missouri, Kansas & Texas Railway, the Rock Island system, including the St. Louis & San Francisco Railroad and the Atchison system.

These reductions were made October 1, 1896, and were, as a rule, 5 cents per 100 pounds. In February, 1899, rates from this same territory were generally advanced 2 cents per 100 pounds, and in December of the same year there was a second advance of 3 cents, making a total advance of 5 cents per 100 pounds and leaving in effect a rate somewhat higher than before the reduction of 1896. In the spring of 1903 these rates were again increased 3 cents per 100 pounds, and this is the rate now in effect.

There is another phase of this matter. Cattle from much of the territory involved can be marketed at several different points, like Chicago, St. Louis, Kansas City, and Omaha, and the rate is an important factor in determining to which of these markets they shall be sent. For many years previous to 1894 a certain relation in rates had been maintained between these markets. If any change was made to one market, a corresponding change was ordinarily made to all others. When this $2 charge was imposed at Chicago no similar charge was made elsewhere, and the cost of transporting live stock to Chicago was increased by that amount, as compared with these other competitive markets. The complainants insist that this was an undue discrimination against Chicago.

We held, in City Council of Atchison v. Missouri Pacific Ry. Co: et al., 12 I. C. C. Rep. 111, that where the defendants had for a long time treated certain Missouri River points as entitled to common rates and facilities and had thereby built up grain markets at these points, they must afford at one the same services in handling grain which they accord at others. Upon the same principle these carriers must not, in the absence of some justifying excuse, impose a terminal charge at Chicago and not at other markets; and we are further of the opinion that it is incumbent upon the defendants to show what 12 I. C. C. Rep.

that justification is, when, for the first time after many years, the apparent discrimination is created. The record discloses, as we have found, a sufficient reason for imposing a charge of $1, but, in our opinion, anything beyond that works an undue discrimination against Chicago as a live-stock market, in favor of Kansas City, St. Louis, and Omaha.

All questions as to reparation are reserved for further proceedings. CLARK and HARLAN, Commissioners:

We are not able to agree with the reasoning or the conclusions of the majority opinion in this case.

No. 1202.

OKLAHOMA & ARKANSAS COAL TRAFFIC BUREAU

v.

MIDLAND VALLEY RAILROAD COMPANY.

Submitted November 18, 1907. Decided December 2, 1907.

Complaint in this case involved the question whether defendant carrier could establish a through route and fix a joint rate, and then decline to furnish equipment in which to move such freight; but as it appeared that there was a specific agreement between defendant carrier and another carrier that the latter should furnish the cars, the complainant agreed that under the circumstances it would be in the interest of all parties that the present proceeding be dismissed.

C. B. Stuart for complainant.

R. D. Oglesby for defendant.

LANE, Commissioner:

REPORT OF THE COMMISSION.

The complaint in this case was that the defendant declined to accept and transport coal from shipping points in Indian Territory (now Oklahoma) and Arkansas to Howe, a point on the Houston & Texas Central Railroad, and Kent, a point on the Texas & New Orleans Railroad, known as the Sabine Division of the Southern Pacific Company, both of said points being in the State of Texas, when such coal was consigned to the purchasing agent of the Southern Pacific Company, while there had been established a through route between the

points in question over which joint rates had been fixed. This was claimed to be a violation of sections 1 and 2 of the interstate commerce law, and the prayer of the petition was that an order be entered requiring the carrier to cease and desist from such violation. The answer of the defendant was to the effect that it did not refuse to accept such shipments.

Upon hearing counsel for complainant moved that the case be dismissed. In support of this motion it was stated the facts were that the Southern Pacific Company had purchased for its own use a large quantity of coal at various mines in Oklahoma and Arkansas, having agreed to furnish the cars in which it was to be transported, and that this was the understanding with the defendant railroad company; that as a matter of fact the Southern Pacific Company did not furnish the cars and because of this failure the defendant railroad company had declined to accept shipments of coal for the Southern Pacific Company. The defendant railroad company declined to permit its cars to be delivered to the Southern Pacific Company because the latter, it was suggested, would not promptly make return of such cars when empty. In order to reach Howe and Kent, Tex., it was necessary for the cars to leave the rails of the Midland Valley Railroad Company and pass over intermediate connecting lines of railway, among them the Missouri, Kansas & Texas Railway and the St. Louis & San Francisco Railroad.

Complainant's counsel stated that the question involved in this case was whether carriers could establish a through route and fix a joint rate, as was done in this case, and then decline to furnish equipment in which to move such freight, but that from information which he had there was a specific agreement between the Southern Pacific Company and the Midland Valley Company that the former should furnish the cars, and that, under the circumstances, it would be in the interest of all parties that the present proceeding be dismissed, and that the question of the duty of the carrier to furnish cars for the movement of traffic under a published rate should be determined in a case not complicated by any agreement as to the movement of particular traffic. 12 I. C. C. Rep.