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No. 1039.

CARDIFF COAL COMPANY

v.

CHICAGO & NORTHWESTERN RAILWAY COMPANY; WABASH RAILROAD COMPANY, AND CHICAGO, INDIANA & SOUTHERN RAILROAD COMPANY.

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This case involves a state of facts substantially similar to that presented in Cardiff Coal Co. v. C. M. & St. P. Ry. Co. et al., supra, and complainant is entitled to an order establishing through routes and joint rates to all strictly local points on the line of the principal defendant to which no through routes now exist from Cardiff.

George C. Mastin, John J. Sherlock, and Frank Crozier for complainant.

Samuel A. Lynde for Chicago & Northwestern Railway Company. Edward T. Glennon, Robert J. Cary, Bertrand Walker, and Herbert D. Howe for Chicago, Indiana & Southern Railroad Company.

REPORT OF THE COMMISSION.

HARLAN, Commissioner:

The purpose of this proceeding is to secure an order requiring the principal defendant, the Chicago & Northwestern Railway Company, to join with its co-defendant, the Chicago, Indiana & Southern Railroad Company, in establishing through routes from the complainant's mines at Cardiff, Ill., to all points on the line of the defendant, the Chicago & Northwestern Railway Company, in the states of Michigan, Wisconsin, Iowa, Minnesota, South Dakota, and Nebraska: and also to require those two companies to establish the same joint through rates for such through routes as are now in effect to the points in question from other mines in Illinois in the immediate vicinity of Cardiff. The case involves a state of facts substantially similar to that presented in Cardiff Coal Co. v. C. M. & St. P. Ry. Co. et al., supra, and was orally argued at the same time on behalf of the complainant, the defendants not being specially represented. A brief was also filed by the complainant.

13 I. C. C. Rep.

As this case differs in no material aspect from the case above mentioned and presents no new questions of law, it will suffice to say that the complainant is entitled to an order herein establishing through routes and joint rates to all strictly local points on the line of the principal defendant to which no through routes now exist from Cardiff. The record does not present sufficient facts to enable us to say that existing through routes and joint rates to competitive points reached by the principal defendant are not satisfactory or reasonable. As to such competitive points no order will be entered at this time. The Commission assumes, however, that the parties to the proceeding will have no difficulty in reaching an agreement that will give effect herein to the general principles announced in the other case. We shall therefore look to counsel to work out proper results and advise the Commission in due time of the action taken. In case of the failure of the parties to agree, the matter will have further consideration by the Commission upon the application of either party, and an appropriate order will then be entered.

13 I. C. C. Rep.

No. 1312.

CHANDLER COTTON OIL COMPANY

v.

FORT SMITH & WESTERN RAILROAD COMPANY.

Decided April 18, 1908.

1. In all controversies before the Commission if there is lack of jurisdiction, either from the absence of essential facts or through want of power in the statute, it is the duty of the Commission, on its own motion, to deny jurisdiction.

2. The provision of the act to regulate commerce applying to carriers transporting property "from one place in a territory to another place in the same territory," so far as it related to the territory of Oklahoma, expired by its own force on November 16, 1907, when Oklahoma was admitted as a state. Complaint dismissed for want of jurisdiction.

Flynn & Ames for complainant.

W. E. Crane for defendant.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant corporation operates a cotton-oil mill at Chandler, in the state of Oklahoma, and defendant operates a railroad between Guthrie, Okla., and Fort Smith, Ark.

It appears from the pleadings that between the dates of November 1, 1906, and April 1, 1907, complainant made numerous shipments of cotton seed over defendant's line from Prague, Okla., to Warwick, Okla., at the rate therein stated, which complainant alleges is unjust and unreasonable, and it asks reparation for the excess paid above. what may be found to be a just and reasonable rate.

At the time of the filing of the complaint, on October 21, 1907, and at the time the shipments moved, Oklahoma was a territory, and the transportation was between points wholly within that territory, but on November 16, 1907, in conformity with the provision of the enabling act of Congress, Oklahoma was formally admitted into the Union by the proclamation of the President.

This complaint has not been heard, and the jurisdictional question has not been raised by the parties, but the Commission is a statutory

tribunal with limited powers, and can exercise only the powers conferred in the statute. In all controversies before it if there is lack of jurisdiction, whether from absence of essential facts or through want of power in the statute, it is the duty of the Commission, of its own motion, to deny jurisdiction. This question it is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties. This rule applies to all tribunals of limited power. Mansfield, Coldwater & Lake Michigan Railway Company v. Swan, 111 U. S., 382.

The provision of the amended act to regulate commerce applying to carriers engaged in the transportation of property " from one place in a territory to another place in the same territory," so far as the territory of Oklahoma is concerned, expired by its own force on November 16, 1907, when Oklahoma was admitted as a state, and the prohibition against intrastate regulation immediately became operative, leaving no power in the Commission to hear this complaint, or to grant any remedy thereunder. This case is controlled by the decision in Hussey v. Chicago, Rock Island & Pacific Railway Company, 13 I C. C. Rep., 366. It follows that the complaint herein should be dismissed without further proceedings, and an order will be entered accordingly.

13 I. C. C. Rep.

No. 1028.

GEORGE J. KINDEL

v.

ADAMS EXPRESS COMPANY; WELLS, FARGO & COMPANY EXPRESS; UNITED STATES EXPRESS COMPANY; PACIFIC EXPRESS COMPANY, AND AMERICAN EXPRESS COMPANY.

Submitted March 14, 1908. Decided April 14, 1908.

1. The rates made by express companies upon small packages in competition with the United States mail are not to be taken as standards by which to determine the reasonableness of their rates upon larger packages.

2. In making express rates a base rate of so much per 100 pounds is fixed and to that is applied what is termed a "graduate" scale, which gives the rates upon smaller packages for a given base rate. All the defendants use the same scale, which was attacked by the complainant as "illogical and inconsistent." The only objection pointed out was that rates upon small packages did not correspond with those upon larger ones, which is due to competition with the mail in carrying small packages; Held, That the scale must be assumed to be a reasonable one in this proceeding and that the only inquiry as to the reasonableness of rates involved would be directed to the reasonableness of the base rate.

3. The fact that express rates in and out of a particular business locality are higher than those in and out of a competing locality from a common source of supply is not of the same importance as in case of freight rates, since the wholesaler ordinarily brings his merchandise in by freight and also distributes it by freight.

4. Within certain limits express rates and freight rates compete and to that extent express rates should be established with reference to freight rates.

5. The main object of an express service is expedition and express rates should not be so low as to attract business which might properly go by freight and thereby congest and interfere with the service by express.

6. In determining the reasonableness of express rates but little reference can be had to the value of the property employed, since the connection between the value of the service and the cost of the property employed in rendering it is but slight. 7. This is equally true of the capitalization of the defendants in this proceeding, which bears no relation whatever to the actual investment necessary to the conduct of the business.

8. In determining whether the present charges of the defendants are reasonable, inquiry must be had into the character of the business, the amount of capital required for its conduct, the hazard involved, and, especially, the profits which these companies are now making under the rates attacked.

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