The rates actually applied to the movements in question seem not to have been lawfully applicable on railroad cross-ties; and in that sense the rates collected from the complainant on its shipments of cross-ties from points east of Nashville to the destinations in question were unlawful. The rates collected were also unlawful in the sense that they were excessive in amount and ought not to have exceeded 19 cents per cross-tie. On the basis of the latter rate, since put in effect as stated, the defendants are authorized and directed to make reparation to the claimant in the sum of $3,071.56. In arriving at this amount instead of $3,074.49, we have taken into consideration the fact that two carloads shipped to Pawnee Junction, as shown in the exhibit attached to the petition, did not contain the minimum carload number of ties, thus necessitating a reduction of the amount by $2.93. An examination of the tariff records of the Commission discloses the fact that the rate of 19 cents, made effective by the defendants on November 28, 1907, as heretofore stated, expires according to its terms on January 1, 1908. The defendants seem to have put that rate in effect on the theory that justice to the complainant required them to establish it, and thus give the Commission a basis for granting relief in this case. It is proper to say in this connection that we do not approve the practice, apparently of quite recent origin, of putting a special rate in effect simply for the purpose of enabling the Commission to do justice in a particular case, and with a clause in the tariff under which, after remaining in force for a period of say thirty days, during which time the Commission will ordinarily enter its relief order, the rate will expire. In such cases, whether they arise on formal or informal pleadings, we shall, in order to prevent the discriminations which the act was intended to defeat, require the rate to remain in effect as a maximum for a definite period of time to be designated in the final order. And we understand that the defendants, whose attention has been called to the matter, make no objection to the entry of an order in the case requiring them to maintain a rate not exceeding 19 cents for a period of not less than one year. An order will be entered in accordance herewith. 13 I. C. C. Rep. No. 1010. CHICAGO & MILWAUKEE ELECTRIC RAILROAD COMPANY v. ILLINOIS CENTRAL RAILROAD COMPANY; THE YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY; ELGIN, JOLIET & EASTERN RAILWAY COMPANY, AND CHICAGO & NORTHWESTERN RAILWAY COMPANY. Submitted July 18, 1907. Decided December 2, 1907. 1. Complainant demands through routes and general class and commodity rates on movements in both directions between points on its own line and points on the lines of the defendants, but it appeared from the record in the case that the shipping community described therein was already supplied with a reasonable or satisfactory through route. For this reason the complaint should be dismissed. 66 2. The proviso in section 15 of the amended law limiting the power of the Commission to establish through routes and joint rates to cases where no reasonable or satisfactory through route exists" was not intended to afford a means by which new lines, with the aid of the Commission, may profitably force their way into shipping districts built up and already well served by older lines, and thus seize and divide with the latter such traffic as may be offered for movement. The purpose of the clause was to afford relief to shipping communities and not to aid carriers to acquire strategic advantages in their contests with one another. 3. The act makes no distinction between railroads that are operated by electricity and those that use steam locomotives; both are subject to the act when engaged in interstate transportation and are entitled to equal consideration in any controversy before the Commission. Fayette S. Munro for complainant. J. M. Dickinson and Blewett Lee for Illinois Central Railroad Company and Yazoo & Mississippi Valley Railroad Company. Samuel A. Lynde for Chicago & Northwestern Railroad Company. REPORT OF THE COMMISSION. HARLAN, Commissioner: This is an application under section 15 for the establishment of through routes and joint rates. The complainant demands through routes and general class and commodity rates on movements in both directions between points on its own line and points on the lines of the defendants, the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company, which latter road is owned and controlled by the first-named defendant and is a part of its system. Notwithstanding the fact that the issue, as made on the pleadings, covers all points on the lines of both companies and calls for joint through rates on general traffic, the testimony on the hearing was directed solely to the need of the complainant for an outlet to southern markets for the cabbage product of that part of southern Wisconsin through which its line passes and which seems to be devoted largely, if not exclusively, to the production of cabbages. The special district, described in the complainant's testimony, is in the neighborhood of two sidings, known as Piper's Siding and Hanche's Siding, which have been constructed by the complainant on the cabbage farms of two shippers bearing those names who appeared in the case as witnesses for the complainant. It is from these two sidings that the through routes and joint rates are more especially desired. The application is contested by the principal defendants, as well as by the Chicago & Northwestern Railway Company, which, on the stipulation of the parties, intervened after the hearing and became a party defendant, on the ground that the cabbage district in question is already served by reasonable and satisfactory through routes. The record discloses the following facts: The tracks of the complainant from Evanston to North Chicago, in the State of Illinois, run substantially parallel to and almost in sight of the shores of Lake Michigan. They lie immediately east of the tracks of the Wisconsin division of the Chicago & Northwestern Railway Company. In the suburban communities through which both roads pass, and at a few other points, the complainant's line diverges for short distances to the east in order to take advantage of the established highways in those communities or to pass around buildings or other local obstructions. But the respective rights of way of the two companies for the greater part of the distance to North Chicago are separated by a wire fence only. At North Chicago the tracks of the complainant cross to the west of the right of way of the Chicago & Northwestern Railway Company; and from that point to the terminus of the line of the complainant, a few miles north of Racine, the two rights of way are more widely separated; but at no point does the distance between them exceed 3 miles. Moreover, the mean distance of the complainant's right of way from the main line of the Chicago, Milwaukee & St. Paul Rail way Company, which lies to the west of the complainant's tracks, does not exceed 4 miles. Piper's Siding, one of the points from which through routes to southern markets are desired, is only about 1 mile from the siding of the Chicago & Northwestern Railway at Berryville. Hanche's Siding is from 1 to 2 miles from the receiving station of the Northwestern at the same point. This latter siding on the complainant's line is only three-quarters of a mile from an extensive siding of the Northwestern at Chicory. Although it does some local freight business between Evanston and Lake Bluff, the principal traffic enjoyed by the complainant between those points is such as pertains to any interurban street car company. But from Lake Bluff the petitioner has constructed a branch line to Rockefeller, which affords it a larger opportunity for conducting a general freight traffic. This branch road runs substantially due west through Rondout and Libertyville to Rockefeller, and is 8 miles in length. At Rondout it crosses and has a physical connection with the main line of the Chicago, Milwaukee & St. Paul Railway Company. Immediately west of Rondout the petitioner also has a junction with the Elgin, Joliet & Eastern Railway, which is locally known as the "Outer Belt Line," the principal business of which is the interchanging of traffic for and between the great carriers entering Chicago. At Rockefeller the branch line of the complainant connects also with the tracks of the Wisconsin Central Railway. It is over this branch line to Rockefeller, and via the Outer Belt Line to the Illinois Central Railroad, that the complainant desires an outlet for cabbages to southern markets. The branch line from Rockefeller to Lake Bluff and the main line from Lake Bluff to the cabbage district in question together form a continuous line of double tracks about 39 miles in length. The tracks are laid with 80-pound rails and are well ballasted. The culverts and bridges are constructed of re-enforced concrete. The record fully discloses and the defendants admit that so far as construction is concerned the complainant is able not only to handle freight in carloads but in trains. At the time of the hearing its motive power and car equipment consisted, in addition to the usual electric motors and interurban passenger cars, of nine steam locomotives, three 50,000-pound box cars, eight 60,000-pound flat cars, and twenty-four convertible gondola cars. While most of this equipment has been in use by the complainant for its own construction work, it is available for freight traffic and has been used to some extent for that purpose. Additional equipment, including three steam locomotives, has been ordered and is now being delivered. The complainant has no refrigerator cars, although cabbages are customarily moved in cars of that kind. Its traffic manager frankly stated on the hearing that if the desired through routes were ordered by the Commission, the complainant would have to look to the Illinois Central to supply the necessary cars for the cabbage movements; and that it is a general understanding and custom among carriers that the line having the longer haul will supply cars for movements over through routes. He also explained that it would be impossible for a short line like his own to equip itself with sufficient refrigerator cars for the traffic in question. The complainant has through routes and joint rates in effect with the Wisconsin Central Railroad Company. And for a period of one month and seventeen days through routes and joint rates to the markets in question were in effect under a joint tariff filed by the complainant and the Illinois Central Railroad Company. Several carloads of cabbages were moved over the through routes and under the joint rates thus established. But the Illinois Central Railroad Company soon canceled the tariff because, as claimed by the complainant, objection had been made to it by the Chicago & Northwestern Railway Company. Officials of the Illinois Central Railroad Company, who testified on the hearing, stated that the joint tariff was canceled because it had proved unsatisfactory; that the complainant had no car equipment of its own, and that the Illinois Central, being short of cars, was disinclined to give its own equipment to roads that could not reciprocate. The fact that the complainant has no refrigerator cars of its own in which to move this commodity, if the through routes desired are established by the Commission, is not only admitted by the petitioner, as heretofore indicated, but it also admits that the Illinois Central Railroad Company "has the right to refuse to supply empty cars to its connecting lines." And it confesses that the Commission would be unwarranted in compelling the establishment of joint rates and through routes unless the Illinois Central Railroad Company will voluntarily supply the necessary cars after the routes and rates have been established, or unless the complainant, as a matter of law, can compel it to do so. The record indicates the unwillingness of that defendant to supply the required empty cars to the complainant. And the complainant meets that situation by maintaining that after the through routes and joint rates have been established it will have further redress against that defendant on the ground that if the Illinois Central Railroad Company, notwithstanding the custom which requires the carrier having the long haul to supply the cars, should refuse the complainant this privilege while supplying cars under similar conditions to other small carriers, its refusal would be an unjust and illegal discrimination that could and ought to be corrected by this Commission. 13 I. C. C. Rep. |