No. 1221. E. W. PRESSLEY v. GULF, COLORADO & SANTA FE RAILWAY COMPANY AND ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS. Submitted November 13, 1907. Decided December 2, 1907. 1. Rates of G., C. & S. F. Ry. Co. of 27 and 29 cents per 100 pounds on cotton seed in carloads from Marietta and Berwin, Okla., respectively, to Cleburne, Tex., are unreasonable, and should not exceed 16 and 18 cents per 100, respectively, and the joint rate of the G., C. & S. F. Ry. Co. and the St. L. S. W. Ry. Co. of Texas, of 45 cents per 100 pounds on cotton seed in carloads from Marietta, Okla., to Plano, Tex., is unreasonable and should not exceed 25 cents per 100 pounds. 2. Complainant is entitled to recover from defendants the sum of $404.96 as reparation for unjust and unreasonable charges on specified shipments of cotton seed made under the rates complained of in the case. Charles Kassel for complainant. J. S. Hershey for Gulf, Colorado & Santa Fe Railway Company. R. C. Fyfe for St. Louis Southwestern Railway Company of Texas. REPORT OF THE COMMISSION. LANE, Commissioner: The complaint in this case is that (1) An excess charge of $67.87 was collected on a carload of cotton seed shipped from Marietta, Okla., to Cleburne, Tex., in February, 1907; that 27 cents per 100 pounds, being the through class rate applicable between Marietta and Cleburne, was charged and collected, while 16 cents would have been a reasonable and just charge. (2) A like shipment was made in the same month from Berwyn, Okla., to Cleburne, Tex., on which an excess charge of $60.65 was collected, 29 cents per 100 pounds, the through rate applicable between Berwyn and Cleburne, being charged and collected, while 18 cents was a just and reasonable charge. (3) In January and February, 1907, three carloads of cotton seed were shipped from Marietta, Okla., to Plano, Tex, on which the excess charges made and collected were $86.46, $105.16 and $112.46, respectively, a rate of 45 cents per 100 pounds, which rate is made by combining the Marietta-Fort Worth rate of 22 cents and the Fort Worth-Plano rate of 23 cents, being charged and collected, while 23 cents is alleged to be a reasonable and just rate. The Gulf, Colorado & Santa Fe Railway Company, prior to the hearing, put into effect the rate of 16 cents per 100 pounds from Marietta, Okla., to Cleburne, Tex., and 18 cents per 100 pounds from Berwyn, Okla., to Cleburne, Tex., in accordance with the contention of the complainant, and agreed to make the refund claimed by complainant, if authorized to do so by this Commission. (4) The St. Louis Southwestern Railway Company of Texas at the hearing agreed to put into effect a rate of 10 cents from Fort Worth, Tex., to Plano, Tex., on shipments originating in Oklahoma, and said company has since filed with this Commission Sheet No. 2, Supplement to Distance Tariff No. 1241, carrying into effect this agreement. The rate of 10 cents is 2 cents higher than the rate claimed to be the just one in the complaint, and 2 cents higher than the rate fixed by the railroad commission of Texas, but at the hearing complainant stated that a rate of 10 cents for the services rendered would be just and reasonable, both in the interest of the carrier and of the public. We do not deem it advisable upon such showing to hold the state rate to be unreasonably low when applied on a thorough interstate shipment, but for the purpose of this case and subject to review upon later investigation if complaint is made, will order that the MariettaPlano rate via Gulf, Colorado & Santa Fe Railway and the St. Louis Southwestern Railway of Texas shall not exceed 25 cents per 100 pounds. Based on the above rates, the St. Louis Southwestern Railway Company of Texas should pay to complainant the sum of $225.27 and the Gulf, Colorado & Santa Fe Railway Company should pay to complainant $179.69 as a refund on the shipments above referred to, these amounts being the difference between the sums collected under the unreasonable rates complained of and what would have been collected had the rates above set forth been in effect at the time of the shipment. 12 I. C. C. Rep. No. 965. FARMERS WAREHOUSE COMPANY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY. Submitted September 17, 1907. Decided December 5, 1907. Reparation awarded in accordance with previous order on shipments made subsequent to the filing of complaint upon presentation of claim and proof thereof as therein provided. Emil Ahlrichs for complainant. T. B. Harrison, Jr., for defendant.. SUPPLEMENTAL REPORT OF THE COMMISSION. CLEMENTS, Commissioner: The Commission on October 8, 1907, made a report and order in this case, 12 I. C. C. Rep., 457, in which order, following its conclusions set forth in said report, the defendant was required to cease and desist on or before December 1, 1907, "from charging, demanding, collecting, or receiving for the transportation of salt in carloads from New Orleans, in the State of Louisiana, to Cullman, in the State of Alabama," its then existing rate of 22 cents per 100 pounds, and on or before said date to establish in lieu thereof a rate not to exceed 20 cents per 100 pounds. It was further specified in said order as follows: That complainant's claim for reparation on shipments of salt between New Orleans and Cullman made prior to the filing of the complaint be, and is hereby, denied; but that the complainant is hereby allowed reparation on any shipments he may have made since the filing of his complaint in so far as the charges thereon exceed the rate of 20 cents per 100 pounds, this proceeding being held open for a period of three months from the date of this order for presentation of such claim and proofs. Pursuant to this order and in accordance with the statute, the defendant has established, effective December 1, 1907, the said rate of 20 cents. The complainant has in accordance with this order presented to the Commission a statement of his shipments of salt in carloads from the point of origin to the destination involved, which have moved since the filing of the complaint and upon which the said rate of 22 cents per 100 pounds was charged and collected by the defendant and his claim for reparation thereon upon the basis of the rate of 20 cents, as in said order provided. The shipments are stated as follows: January 2, 1907 (car C. R. R. of N. J. 10927). Pounds. 63, 000 30, 000 30,000 This statement has been submitted to the defendant and is admitted by it through its counsel to be correct. It is therefore the further conclusion of the Commission that the complainant is entitled to recover from the defendant reparation in the sum of $24.60, this being the amount of charges collected upon the shipments aforesaid in excess of the rate of 20 cents per 100 pounds. An order to this effect will be made. No. 1216. SCHWAGER & NETTLETON, INCORPORATED, v. GREAT NORTHERN RAILWAY COMPANY. Submitted November 20, 1907. Decided December 6, 1907. 1. The act does not bar a carrier from providing for costs of transfer in making delivery to a certain carrier, but if it so provides, it must publish and file a tariff showing where the transfer will be made, the kind of transfer service required and the charges to be exacted therefor. 2. A shipper is entitled to notice of a transfer charge other than one coming to him through the collection of the charge from his consignee, and as he is not obliged to follow his shipment and make the transfer himself, he is entitled to the protection afforded by a published definite rate. 3. A carrier can not excuse the collection of an unpublished and unknown drayage and transfer charge by proof that it had a rule which forbade the sending of its own cars beyond its own line during a period of car shortage and congestion of business. This defense would be especially unavailable where no notice of the rule, either actually or by reference in a published tariff, had been brought to the shipper. Austin E. Griffiths for complainant. W. R. Begg, L. C. Gilman and J. D. Armstrong for defendant. REPORT OF THE COMMISSION. CLARK, Commissioner: The complainant is a corporation engaged in the interstate shipment of lumber, with its principal place of business in the city of Seattle, Wash., and it operates lumber mills in various places in the State of Washington. One of the complainant's mills was located at Avon, Wash., which was about a mile and a half from Burlington, a station on defendant's road. The defendant did not maintain a station at Avon, and all shipments of lumber made by complainant from Avon were billed by defendant's agent at Burlington. The facts material to this controversy are not disputed, and are as follows: On October 20, 1906, complainant, at its mill in Avon, loaded two of defendant's cars, numbered 90288 and 90080, respectively, with fir lumber for shipment and carriage by defendant to Sawyer, N. Dak., a point on the line of the Minneapolis, St. Paul & Sault Ste. Marie Railway. Minot, N. Dak., was the junction point between defendant's line and the line of the Minneapolis, St. Paul & Sault Ste. Marie Railway, commonly known as the "Soo Line." At the time of the shipments, as at the present time, there were no joint rates on shipments of lumber from Avon, Wash., to Sawyer, N. Dak., and the rates then in force were the two locals, to wit, 40 cents per 100 pounds from Avon to Minot and 4 cents per 100 pounds from Minot to Sawyer. Through shipments were carried upon a combination of the two locals, each carrier receiving its local in the division. The material parts of each bill of lading issued by the defendant to the complainant for the shipments complained of are as follows: Received from the Minnesota Lumber Company, by the company above named, the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned, and destined as indicated below, which said company agrees to carry to the said destination, if on its line, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination, and to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions of this company's published freight tariffs and to all the conditions, whether printed or written, herein contained, and which are hereby agreed to by the shipper and by him accepted for himself and assigns as just and reasonable. Marks and numbers: G. N. No. 90080. Consignee and destination: M. L. Himes, Sawyer, N. Dak., via Great Northern Railway, and Minot, c/o Soo Line. One car fir lumber. Not negotiable. The defendant transported said cars of lumber to Minot and there caused the lumber to be taken from its own cars and transported by drays and placed in cars belonging to the Soo Line, for which transfer it charged the sum of $12.50 per car, and that amount the Soo Line entered as an advance charge and collected from the consignee, |