This is also true as to Milan, Humboldt, Jackson, and Nortonville. All of them are junction points on the Illinois Central either with the Louisville & Nashville or the Nashville, Chattanooga & St. Louis, and those two carriers have simply met the competitive rates of the Illinois Central at those points, but they do not transport the commodities covered by this complaint through Nashville to those points.

As before observed, Hopkinsville is not on the lines of the Illinois Central between New Orleans and Evansville, and therefore does not fall under its policy of literal compliance with the long and short haul section of the act, and it is insisted that said carrier should extend the Ohio River rate to Nashville as well as to Hopkinsville and thereby create the same competitive condition at Nashville.

The lack of force in this contention rests in the assumption that one point can not be included in a group rate without extending the same to all other points lying beyond. It is clear that the group or basing point system, so long in vogue, should not be disturbed on the application of some point not included within the group unless such group rate works an unreasonable disadvantage to the point complaining. The competition from Mississippi River common points, Ohio River crossings, or Jackson is not unjustly discriminatory or unreasonably disadvantageous to Nashville, because the distributing rates from those points and Nashville equalize about 50 miles either north or west from Nashville. Those points do not compete in the territory east of Nashville and but little in the territory south thereof. Milan, Humboldt, and Hopkinsville furnish no competition with Nashville because there are no wholesale grocery houses there, and the record is silent as to competition from Elizabethtown.

The question seems to narrow down to whether or not the Illinois Central unjustly discriminates against Nashville by giving Hopkinsville a lower rate. In this case it happens to be a group or lasingpoint rate, but if the rate had been either higher or lower than the hasing-point rate, and no unjust discrimination resulted, there would be no reason for giving Nashville that rate. And the fact that Hopkinsville has been given the group or basing-point rate is likewise no reason why Nashville should be included within that group in the absence of a showing of unjust discrimination resulting to Nashville. In its answer to this complaint the Southern Pacific Company said: That the reason for charging and collecting higher rates on the commodities named, for the transportation of said commodities from Southern Pacific coast terminals to Nashville and said other destination points, is because of the action of the southeastern lines in demanding that rates between said Southern Pacific coast terminals and said southeastern points be made upon an arbitrary basis, which gives to the southeastern lines an unreasonable proportion of the through rates between said points, and which gives to said southeastern lines an unreasonable division of said rates.

It, however, in said answer denies that the through rates are unjust or unreasonable.

Complainant urges that the statement above quoted is an admission of the unreasonableness of the rates. The Southern Pacific Company in testimony says that the allegation refers only to the divisions of the rates, and that it is negotiating for divisions more favorable to it. It seems clear that no admission of unreasonableness of the through rates was intended or contemplated. The defendants show that the rates on canned goods and dried fruits from Columbus, Ky., to Nashville are, respectively, 14 and 16 cents per 100 pounds. These rates added to the rates from the Pacific coast terminals to the Mississippi River make the through rates to Nashville. We can not find from this record that either the rates from Pacific coast terminals to the Mississippi River or to the Ohio River crossings, or the local rates from the Mississippi River or Ohio River crossings to Nashville, on these commodities, are unreasonable.

We ́e are satisfied from the entire record that the rates complained of at Nashville have not been shown to be unjust and unreasonable, or unjustly discriminatory against Nashville, or unduly preferential to other points, and that they do no violence to section 4 of the act to regulate commerce. It follows that the complaint and the petition of the interveners should be dismissed, and such an order will be entered.

13 I. C. C. Rep.

No. 1290.

FORT SMITH TRAFFIC BUREAU

v.

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY AND ILLINOIS CENTRAL RAILROAD COMPANY.

Submitted May 16, 1908. Decided June 2, 1908.

1. The concurrent existence of two separate and distinct rates on the same commodity is condemned when the traffic moves over the same route in the same direction, between the same points, and the carriers, by their published tariffs, assume to charge one rate or the other according to the ultimate use to which the commodity is to be put.

2. Tariffs which apply rates upon commodities according to their use are improper. The carrier has no right to attempt to dictate the uses to which commodities transported by it shall be put. The duty of a common carrier is to transport commodities at its tariff rates and on equal conditions for all.

C. H. Ivers and Mechem & Mechem for complainant.

E. B. Peirce, Ed. Baxter, R. Walton Moore, and Thomas S. Buzbee for defendants.

REPORT OF THE COMMISSION.

COCKRELL, Commissioner:

The complaint in this case was filed September 26, 1907, by the Fort Smith Traffic Bureau, a mercantile association composed of manufacturers and jobbers, having its principal office at Fort Smith, in the state of Arkansas, and was brought by complainant on behalf of the city of Fort Smith, the Equitable Powder Manufacturing Company, and the manufacturers and shippers of nitrate of soda.

The matter alleged is the concurrent existence of two separate and distinct rates on the same commodity, when moved over the same route in the same direction, between the same points; the carrier defendants by their published tariffs assuming to charge one rate or the other according to the ultimate use to which the commodity is to be put.

The specific allegations are:

3. That effective July 27, 1907, defendants did publish and post a through carload rate of 20 cents per 100 pounds to apply on nitrate of soda from New Orleans, La., to Fort Smith, Ark. (Arkansas Tariff No. 1-I, I. C. C. No. 51, Supplement No. 32, item 5445.)

4. That effective same date. July 27, 1907, defendants published and posted through carload rate of 20 cents per 100 pounds to apply on "potash salts and nitrate of soda, to be used exclusively in the manufacture of fertilizer, carloads, minimum weight 30,000 pounds," from New Orleans, La., to Fort Smith, Ark. (Arkansas Tariff No. 1-J, I. C. C. No. 58, item 370.) Canceling I. C. C. No. 51, and supplements thereto. 5. That on carload shipments of nitrate of soda, to be used in the manufacture of powder, from New Orleans, La., to Fort Smith, Ark., through rate of 27 cents per 100 pounds is applied.

6. That said increase in rate was made without justification. That the rate applied on nitrate of soda to be used in the manufacture of fertilizer yields compensatory revenue to the defendants for the service performed. That the present rates as increased as above set forth are unjust, unreasonable, and unduly prejudicial to Fort Smith, to the other common points in Arkansas, to the Equitable Powder Manufacturing Company, dealers and shippers of nitrate of soda.

Reparation is asked.

The separate answer of the Illinois Central Railroad Company is in these words:

3. The allegation contained in paragraph 3 of the complaint is misleading in that it creates the impression that the rate therein mentioned was intended to be applied to nitrate of soda used in the manufacture of powder. There was no such intention nor was the rate so supplied, and the exact fact is that the rate was published, as will appear from the tariff, in the following terms:

"Effective July 27, 1907. Fertilizer: Potash salts and nitrate of soda, C. L., from New Orleans, La., to Fort Smith, Ark., 20 cents per 100 pounds."

The rate thus published was a fertilizer rate on nitrate of soda included with potash salts as a fertilizer or for use in the manufacture of fertilizer.

4. The truth of the allegation contained in paragraph 4 of the complaint is admitted, the rate therein mentioned being the rate applied to "potash salts and nitrate of soda" used in the manufacture of fertilizer.

5. The truth of the allegation contained in paragraph 5 of the complaint is admitted, but the said paragraph is misleading in creating the impression that the rate of 27 cents per 100 pounds is restricted to nitrate of soda used in the manufacture of powder, the exact fact being that the rate in question applies on nitrate of soda however used, whether in the manufacture of powder, the manufacture of fertilizer, or otherwise. The said rate has been and is the lawfully published rate on nitrate of soda.

The St. Louis & San Francisco Railroad Company answered as follows:

3. Defendant admits that on July 27, 1907, it published and posted a through carload rate of 20 cents per 100 pounds to apply on "Potash salts and nitrate of soda, to be used exclusively in the manufacture of fertilizer," from New Orleans, La., to Fort Smith, Ark., but states that said rate was withdrawn on September 30, 1907, and a rate of 27 cents established in lieu thereof.

4. Defendant admits that on carload shipments of nitrate of soda to be used in the manufacture of powder, from New Orleans, La., to Fort Smith, Ark., a through rate of 27 cents per 100 pounds is applied.

5. Defendant denies that the present rates on nitrate of soda from New Orleans to Fort Smith are unjust, unreasonable, or unduly prejudicial to Fort Smith, to the other common points in Arkansas, or to the Equitable Powder Manufacturing Company, dealers and shippers of nitrate of soda.

At the hearing at Fort Smith it was agreed by all parties that the complaint was brought for the benefit of the Equitable Powder Manufacturing Company, and the attorneys for that company took entire charge of the complainant's side of the case.

The testimony was directed to develop the situation with respect to importation of nitrate of soda, its transportation to the various consuming points, and the tariff rates charged thereon by the interstate carriers from the ports of entry. The hearing developed the facts that no fertilizer factory ever existed at Fort Smith or at Fenn; that Fenn is the name of the manufacturing plant of the Equitable Powder Manufacturing Company, located about 4 miles south of Fort Smith and connected by a spur track with the main line of the St. Louis & San Francisco Railroad Company; that this spur track is about 1 mile long and belongs to the railroad; that no other industries are located at Fenn beside the powder works; and that by certain tariffs by certain routes when the delivering carrier is the Frisco the rates on certain commodities, including nitrate of soda, applicable to Fort Smith are also applicable to Fenn.

With respect to nitrate of soda, it is shown that all of the commodity is obtained from Chili and Peru, South America, bagged in sacks; that the bags vary in weight from 200 to 300 pounds each; that the principal ports of entry are Mobile and New Orleans, on the Gulf, and Boston, New York, Wilmington, Baltimore, Newport News, and Savannah on the Atlantic, although other ports might be used if desirable, as the vessels used are tramp ships especially engaged under charter parties; that the recent price has been $2.40 per hundredweight, f. o. b. cars at New Orleans; that there is no risk in handling it, being as harmless as common salt; that there are only two grades of the commodity, 95 per cent and 96 per cent, the percentage being very carefully determined and the price varying sensitively with a variation of one-tenth of 1 per cent in the purity of the article; that little purification of the article is attempted, nothing more than to separate the earthy material; that the impurity in the commodity is not a salt of potash, but is ordinary table salt, or chloride of sodium; that nitrate of soda enters into the composition of powder to the extent of 75 per cent of actual weight; that nitrate of soda is seldom used by itself as a fertilizer; and that in carload shipments there is no difference in the transportation of nitrate of soda, whether it is destined to a powder plant or to a fertilizer factory.

The evidence also shows that Fort Smith, or rather Fenn, gets nitrate of soda not only from New Orleans, but from the Atlantic