No. 1474.

BUTTERS LUMBER COMPANY

v.

ATLANTIC COAST LINE RAILROAD COMPANY; RICHMOND, FREDERICKSBURG & POTOMAC RAILROAD COMPANY; WASHINGTON SOUTHERN RAILWAY COMPANY; PENNSYLVANIA RAILROAD COMPANY; PHILADELPHIA, BALTIMORE & WASHINGTON RAILROAD COMPANY, AND PHILADELPHIA & READING RAILWAY COMPANY.

Submitted April 18, 1908. Decided May 4, 1908.

Complainant is entitled to recover from defendants the sum of $51.94, as reparation for unjust and unreasonable charge on specified shipments of lumber made under the rate complained of in this case.

Conrad H. Syme for complainant.

G. S. Patterson and G. V. Massey for Pennsylvania Railroad Company and Philadelphia, Baltimore & Washington Railroad Company.

Charles Heebner for Philadelphia & Reading Railway Company. Ed. Baxter and R. W. Moore for Altantic Coast Line Railroad Company, Richmond, Fredericksburg & Potomac Railroad Company, and Washington Southern Railway Company.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant in this case alleges that certain shipments of lumber were made from Boardman, N. C., to Pottsville, Pa., and to Schuylkill Haven, Pa., over the lines of the defendants, upon which a through rate of 25 cents per 100 pounds was collected, and that at the time these shipments moved, to wit, between January 11, 1907, and March 12, 1907, defendants had in effect local rates on lumber from Boardman to Richmond, 12 cents per 100 pounds, and from Richmond to Pottsville and Schuylkill Haven, 11 cents per 100 pounds, thus making a combination of locals on Richmond 2 cents less than the through

rate.

On hearing, defendants admitted that the shipments as alleged in the complaint had been made and that the through rate of 25 cents per 100 pounds had been charged thereon, but showed that the local rate from Boardman to Richmond was 13 cents per 100 pounds, instead of 12 cents, as alleged in complaint.

Defendants showed that it is customary to have rates from points in the south to points in Pennsylvania the same via Norfolk and Richmond and other gateways; that the local rate from Norfolk to Pottsville and Schuylkill Haven had been made 13 cents late in 1905; that attention had been called in October, 1906, to the fact that the rate from Richmond was less than that from Norfolk, and that in April, 1907, this had been corrected, thereby restoring the generally established relation of rates through these gateways, and from these gateways to points of destination involved.

It appears that no lumber originates at Richmond, and that there was no published rate on lumber from Boardman to Richmond other than the 13-cent rate. The defendants never intended that the combination on Richmond should be less than on Norfolk or that it should be less than the through rate. It seems, however, that competitors of complainant had at times used the lower combination on Richmond while it was in existence.

Neither in complaint nor on hearing did complainant allege that any of the rates in question, either as they existed at the time these shipments moved or as they were later corrected, were or are unreasonable. Complainant simply prayed for reparation in the sums charged on these shipments in excess of the combination of local rates on Richmond, Va., via which route these shipments moved.

After brief hearing, it was agreed by counsel for both sides that, confining the reasons and justification therefor entirely to the record in this case, and establishing no precedent to be followed in connection with other complaints of a similar nature, this complaint should be adjusted by entry of an order for payment to the complainant by defendants of the sum of $51.94, which represents the difference of 1 cent per 100 pounds upon the shipments specified in complaint and admitted by defendants.

An order will be entered accordingly.

13 I. C. C. Rep.

No. 1338.

KOCH SECRET SERVICE

v.

LOUISVILLE & NASHVILLE RAILROAD COMPANY.

Submitted April 14, 1908. Decided May 4, 1908.

Defendant is guilty of unjust discrimination in refusing a special excursion rate to parties of 10 or more persons in the employ of complainant, presented by it for transportation between Nashville, Tenn., and Evansville, Ind., while according said rate to parties of 10 or more persons of other avocations traveling between the same points at the same time. Reparation awarded.

Alfred T. Levine for complainant.

William G. Dearing for defendant.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

Complainant is a corporation chartered under the laws of the state of Tennessee and is engaged in secret service and detective business. On May 6, 1907, complainant sent a party of 16 men, all in its employ, from Nashville, Tenn., to Evansville, Ind., for whom fares were collected in the amount of $80; on May 16, 1907, another party of 23 men from Nashville to Evansville, for whom fares were collected in the amount of $115, and on May 21, 1907, another party of 18 from Evansville to Nashville, for whom aggregate fares were collected by the defendant amounting to $90. All of these amounts were paid by complainant under protest and receipts signed by properly constituted agents of the Louisville & Nashville Railroad Company were issued therefor and are filed in the record. On May 21 complainant offered a party of 10 men for transportation from Evansville to Cincinnati, asking that the party rates then applicable under the tariffs to parties composed of other classes of persons, as will be hereinafter described, be accorded thereon. Defendant declined to accord said party rate, in consequence of which only 9 men were sent and 9 tickets bought, the tenth man not going on account of the refusal of defendant to accord the party rate.

The regular fare applying between Nashville and Evansville at the time these parties moved and upon the basis of which the charges as above set forth were collected was $5 per capita. Under Louisville & Nashville Railroad Circular No. 4427, I. C. C. No. 1368, effective January 10, 1907, a rate of $3.50 per capita was available between Nashville and Evansville during May, 1907, for

ten (10) or more bona fide members of regularly organized theatrical, operatic, or concert companies, glee clubs, brass bands, baseball clubs, football, polo, or basket-ball teams, traveling together on one party ticket for the purpose of giving public entertainments.

The special excursion rates named in this circular as restricted to the several classes of persons enumerated were canceled, effective May 31, 1907, as per Louisville & Nashville Circular No. 4626, I. C. C. No. 1506, but by Louisville & Nashville Railroad Circular No. 5289, I. C. C. No. 1870, effective April 11, 1908, the party rate of $3.50 is made available between Nashville and Evansville to 10 or more persons traveling together on one ticket, irrespective of avocation.

Under date of April 8, 1907, the Commission rendered a report In the Matter of Party Rate Tickets, 12 I. C. C. Rep., 95, stating its view that under the prohibition contained in section 2 of the act to regulate commerce against unjust discrimination as therein defined, party rate tickets can not be limited to particular classes of persons, but must be open to the general public. Adhering as we do to the conclusions stated in this report, we find that the defendant in failing to accord the special excursion rate to the party of 16 men presented by complainant for transportation on May 6, 1907, from Nashville to Evansville, also to the party consisting of 23 men from Nashville to Evansville, on May 16, and to the party of 18 men, Evansville to Nashville, on May 21, all of which parties moved over the Louisville and Nashville Railroad, has unjustly discriminated against complainant, for which reparation should be made in the amount of the difference between $285, being the aggregate of the individual fares actually paid by complainant, and $199.50, being the amount which would have been collected had the special excursion rate of $3.50 applicable on parties of 10 or more persons of certain specified classes been accorded.

It is contended that it would have been illegal for the carrier under its tariffs in effect at the time to have charged for this transportation any other than the established individual fare of $5 per capita. However, the publication of rates, rules, and regulations in the tariff schedules is not conclusive of their justness and reasonableness. The authority and duty of the Commission under the law to award damages in reparation of unjust discriminations forbidden by the act ex

tend as well to such discriminations effected by the published rate schedules as to those effected by departure therefrom.

No reparation will be awarded on account of the excess above the special excursion rate paid on account of the 9 men traveling from Evansville to Cincinnati on May 21, 1907. While it is doubtless true that 10 men actually presented themselves for transportation, as alleged by complainant, it is conceded that only 9 traveled in the party, and, therefore, the terms under which the party rate was applicable were not met. The Commission can only award reparation on account of unjust discrimination which is actual and which is in fact accomplished, and not on account of unjust discrimination which might have been imminent had the transaction actually taken place.

An order will be entered awarding complainant reparation in the sum of $85.50, with interest at 6 per cent per annum from June 1, 1907. 13 I. C. C. Rep.