other companies purely upon the basis of hypothetical ovens. Moreover, the continuance of that basis under present conditions must involve an economic waste which ought to be avoided. The record shows that about 52 per cent of the existing coke ovens are sufficient to supply the current demand for coke from the field in question. This means that in order to increase its relative output of coal complainant must erect additional ovens at an expense of $500 each, with no other reason for the outlay or benefit therefrom than the resulting addition to the number of cars which would be secured for shipments of coal, and without regard to any increase or decrease in the productive capacity of its mines.

It requires only ordinary imagination to see the illogical and artificial character of the coke-oven basis. One company, with limited capital, uses its money in building coke ovens instead of extending its underground workings, while another company expends the same sum in enlarging its mining facilities, but without adding to the number of superfluous ovens. The necessary result would be that the former, with its mining capacity unchanged, would secure an increased car supply, while the latter, with largely augumented ability to produce coal, would have fewer cars for its shipment. A system which involves such absurd consequences is certainly open to grave objection.

The situation in the Pocahontas field at present is not greatly at variance with the case supposed. During the year 1906, under the coke-oven basis, the Pocahontas, Norfolk, Rolfe, Sagamore, Shamokin, Booth-Bowen, Buckeye, Goodwill, Crystal, Crane Creek, Algoma, Elk Ridge, Ashland, Shawnee, Peerless, Bottom Creek, Tidewater, and Page companies were entitled to and received many more cars than they had occasion to use; while, according to the record, complainant was never able to secure a sufficient number to approximate its loading capacity. In other words, in the same field and among operators similarly situated, one concern was seriously crippled by car shortage while other concerns had more cars than they could load.

It has already been observed that the distribution sheet for July and August, 1907, does not furnish an accurate basis of comparison, for the reason that shipments of fuel coal for carrier's use are included therein, while the cars for such shipments are not charged against the allotment under the coke-oven basis. Nevertheless, this record is strongly suggestive. The Page Company, with 500 ovens erected and entitled under the coke-oven basis to more than twice as many cars as complainant, shipped during July and August, respectively, only 0.01942 and 0.01899 per cent of the aggregate output of the field, as against complainant's shipments of 0.02250 and 0.02670

per cent of such aggregate. Thus, while both mines were supplied with cars to the extent of their working capacity, a company entitled to twice as many cars as complainant actually loaded much less tonnage during the period in question. When to this is added the fact that eleven of these companies, which in July and August failed to ship a proportion of the total output of the field equivalent to their share of available equipment under the coke-oven basis, also failed during the year 1906 to use all the cars to which they were entitled under that basis, the conviction is quite irresistible that the coke-oven basis does not fairly measure the relative rights of the various operators in the Pocahontas district.

Upon consideration of all the facts and circumstances disclosed in this case, and with our view of the obligations of the defendant carrier, we are led to the conclusion that the present basis of car distribution to mines in the Pocahontas field unduly and unjustly discriminates against complainant and operates to the undue and unreasonable preference and advantage of other mining companies in the same field.

It appears that the defendant railway company some years ago became and still is the virtual owner of the coal lands upon which the operations in question are located, the legal title thereto being in the land company whose stock is owned by the railway company. The coke-oven basis of car distribution seems to have been the outcome of the general policy of the railway company, in accordance with which the land company required each lessee of coal lands to construct a certain number of coke ovens per hundred acres of land leased as above stated. This policy was evidently adopted for the purpose of encouraging coke production and the manufacture in that district of articles which could be made by the use of coke. The railway company now prefers to discontinue the coke-oven basis and apparently desires an order of the Commission as a justification for taking that

course.

While we are convinced by the facts and circumstances disclosed that the present basis is unjust and results in unlawful discriminations, we are not unmindful that the change which will be directed may occasion loss and injury to some of the operators whose expenditures for the construction of coke ovens, as required by their leases, may be materially and perhaps greatly diminished in value. Although not warranted in sanctioning a further continuance of the coke-oven basis, which under existing conditions is found to be neither just nor suitable, we do not desire or intend that the report and order herein shall affect the rights, responsibilities, or liabilities of any of the interested parties under any contract or agreement which they might otherwise be able to enforce for their benefit.

In its petition complainant asked for reparation, but no evidence was offered as to the amount or extent of the damages suffered, and it is to be inferred that this demand has been virtually abandoned.

Upon argument, the authority of the Commission to prescribe the method of car distribution to be substituted for the coke-oven basis was challenged. We deem it unnecessary to express an opinion upon that point for two reasons: In the first place, the record is not sufficiently complete to warrant an attempt to prescribe, except possibly in the most general way, the system or method which should hereafter be followed in the distribution of cars to the various mines in the Pocahontas district. Secondly, the discontinuance of the cokeoven basis, which will be required by an appropriate order, will involve the adoption of a system which does not result in unlawful discrimination, and we think the defendant railway company should take the responsibility, at least in the first instance, of determining and applying the substituted basis.

In dealing with this question of car distribution the Commission, in its report of certain investigations under the joint resolution of Congress of March 7, 1906, commonly referred to as the coal and oil investigation, made the following, among other, recommendations:

That every common carrier engaged in interstate transportation of coal be required to make public the system of car distribution in effect upon its railway and the several divisions thereof, showing how the equipment for coal service is divided between the several divisions of its road and how the same in times when the supply of equipment does not equal the demand is divided among the several mining operations along such road; and that the carrier further be required to publish at stated periods and at each divisional headquarters upon its line of road the system of car distribution in effect and the actual distribution made to each mining operation under such system.

That where the capacity of the mines is the basis for the distribution of equipment, a fair, just, and equitable rating of the mines be required, and that provision be made for the representation of owners of the mines at the rating thereof.

These recommendations are here quoted not as definite directions to be followed by the defendant railway company, but rather as indicating the principles which, in our judgment, should be observed in order to provide a fair and equitable distribution of cars when the available equipment is insufficient to meet all demands. It is assumed that some form of capacity basis suited to the conditions and peculiarities of the district in question will be devised and put into effect. An order will be entered in accordance with the views thus expressed. 13 I. C. C. Rep.

No. 792.

PITTSBURG PLATE GLASS COMPANY

v.

PITTSBURG, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY; CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY; NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY; NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY; DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY; BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY; LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY; PHILADELPHIA & READING RAILWAY COMPANY; NORFOLK & WESTERN RAILWAY COMPANY; CHESAPEAKE & OHIO RAILWAY COMPANY; BALTIMORE & OHIO RAILROAD COMPANY; PENNSYLVANIA RAILROAD COMPANY; BOSTON & MAINE RAILROAD; LEHIGH VALLEY RAILROAD COMPANY; MICHIGAN CENTRAL RAILROAD COMPANY; PENNSYLVANIA COMPANY, AND ERIE RAILROAD COMPANY.

No. 815.
SAME

v.

ILLINOIS CENTRAL RAILROAD COMPANY.

Submitted May 9, 1907. Decided January 13, 1908.

1. Unjust discrimination in rates against domestic shipments of plate glass in favor of import shipments was alleged, on the ground that rates on the former are relatively higher than the inland rail proportion of the total charge from the point of origin in a foreign country.

2. Under the law, as interpreted by the Supreme Court of the United States in Texas & Pacific Railway Company v. Interstate Commerce Commission, 162 U. S., 197, the Commission can not consider such disparity in rates alone as constituting unjust discrimination.

3. In considering the question of alleged unjust discrimination in favor of shippers of import plate glass moving from the ports of entry in this and adjacent foreign countries to interior American destinations, and against domestic shipments between points in the United States, it is the duty of the Commission to look to the circumstances and conditions affecting the matters involved, not only in this country, but in the entire field of commerce, here and abroad. It is well settled by the highest judicial authority that the existence and effectiveness of competition between carriers, whether by rail or water, whether subject to the Federal act of regulation or not, and competition of markets, or the absence of such competition, are, among other things, pertinent to the question of similarity of circumstances and conditions, and as to whether the discrimination complained of and shown is or is not undue or unreasonable. 4. To make the total through charge from a foreign point of origin the absolute measure of the rate to be charged on domestic traffic from the port of entry in this country through which the import shipment moves would be to establish a hard and fast rule difficult if not impossible for the rail carriers in this country to conform to in the establishment and publication of their rates, in view of that uncertain and flexible element involved in the ascertainment of the total through charges, to wit, the rates to the port.

5. Discriminations of the nature referred to in sections 3 and 4 of the act, in so far as they result from the bona fide action of a carrier in meeting circumstances and conditions not of its own creation, and which are reasonably necessary for that purpose, do not of necessity fall under the condemnation of the law.

6. Transportation from a seaport of the United States or an adjacent foreign country to an interior American destination, in completion of a through movement of freight from a point in a foreign but not adjacent country, whether upon a joint through rate or upon a separately established or proportional inland rate applicable only to imports moving through, is not a "like service" to the transportation of traffic starting at such domestic port, though bound for the same destination. 7. As held in numerous decisions of the Supreme Court, it is neither required by law nor just that the rates of a carrier on traffic subject to intense competition shall mark the limit or measure of its rates on traffic not subject to such competition. Being bound to consider the more intense competition to which the transportation of the foreign product is subject as one of the "circumstances and conditions" affecting the relative adjustment of rates, the Commission can not, solely upon the basis afforded by a comparison of the inland proportion of the through rate from the foreign point of origin with the rate applying on domestic shipments of plate glass in this country, condemn the latter as unreasonable or unjustly discriminatory. As rates applying on domestic shipments of plate glass between points in this country were challenged mainly on the ground of unjust discrimination and not on account of their unreasonableness per se, and as there is no basis in the record of the case as presented for a determination as to whether these rates are or are not just and reasonable of themselves, the complaint is dismissed without prejudice.

W. S. Dalzell for complainant.

George S. Patterson for Pennsylvania Railroad Company; Pennsylvania Company, and Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

S. F. Andrews for Norfolk & Western Railway Company.

John J. Wilson for Baltimore & Ohio Railroad Company and Baltimore & Ohio Southwestern Railroad Company.