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It becomes readily apparent from the foregoing that manipulation of the freight bills made it unnecessary for the port concentrators to pay combination rates to the Southeast on cotton originating on the Frisco. The advantage to them of joint rates through the ports on Frisco cotton would be a larger available supply of Oklahoma expense bills on cotton moving beyond the ports.

Probably, however, the savings to the port concentrators by reason of the substitution practices just described were not so substantial as might at first appear. Concentrators assemble cotton at their places of business without regard to the points of origin, and there grade and sort it into even-running lots, usually of 100 bales or multiples thereof. In shipping out a lot of cotton of even-running grade and staple they select an expense bill or expense bills which the transit arrangements permit them to use. It was quite possible for a large part of a given lot of cotton shipped to the Southeast on Oklahoma common-point expense bills, for example, to consist of Oklahoma cotton which moved to the port from Oklahoma common-point territory or even from higher-rated points in Oklahoma, under which circumstances the substitution might conceivably have resulted in a loss to the concentrator.

Since the hearing, however, a rule has been established which effectually prevents the use of Oklahoma balances on Texas cotton. This rule is now in effect at Galveston and Houston, and a similar rule has been made effective at New Orleans by the Texas & Pacific and the Texas & New Orleans and is to be published by the other New Orleans lines. The rule at Houston and Galveston reads as follows:

Where Cotton is shipped to destinations in the states of Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina, Tennessee, Kentucky, Virginia, Massachusetts, Vermont, New Hampshire, Rhode Island, Connecticut and Maine, and Oklahoma billing is used in concentration claim, the refund shall be calculated on basis of inbound rate of not exceeding eighty-one (81) cents unless check for identity discloses that the Cotton actually originated in Oklahoma in which case full refund based on Oklahoma rates shall be made.

Even under this rule the port concentrators will still be able to substitute Oklahoma cotton for Oklahoma cotton, but the same arrangement is available to concentrators in Oklahoma and at such points as Memphis, Little Rock and Fort Smith, Ark., Atlanta and other points where the concentration of Oklahoma cotton is permitted.

We are asked, among other things, to give consideration to what protestant deems the wasteful transportation over the routes through the ports. It urges rightfully that weight must be given not only to the substantial difference in distance, but to the long hauls of

small bill-of-lading lots of cotton to the ports for concentration, to the expensive mixed-platform handling and switching at the ports, and to the greater number of carriers participating in the hauls via the ports, with the added expense for interchange and accounting between carriers. Less equipment is required to haul cotton which is concentrated at or near the point of production, and, moreover, the trend of empty box-car movement between Oklahoma and the Texas Gulf ports is northbound. As observed by protestant, cotton moving to the ports for concentration is usually in small bill-oflading lots. The cars, however, are usually loaded as heavily as the volume offered will permit.

Protestant relies principally, however, upon the contention that establishment of rates and routes via the ports and the substitution and more favorable concentration arrangements at the ports would deprive Oklahoma dealers and communities of the advantages of their geographic location and thus result in undue prejudice. In support of this contention it cites Southern Kansas Grain Asso. v. C., R. I. & P. Ry. Co., 139 I. C. C. 641, wherein we found in part that the maintenance of transit rules whereby the rates on wheat and its products originating at stations in Kansas and Colorado south of the main line of the Santa Fe through Florence, Newton, Hutchinson, Kinsley, Dodge City, and Garden City, Kans., and reshipped or reforwarded to the Gulf ports for export were the same via Kansas City, Atchison, and Leavenworth, Kans., and St. Louis as via Hutchinson and Wichita, Kans., was unduly prejudicial to Hutchinson and Wichita and unduly preferential of Kansas City, Atchison, Leavenworth, and St. Louis.

One example will suffice to portray the rate situation condemned in the case cited. From stations on the Santa Fe south of its main line the average distances to Houston over the direct routes through the complaining points and the indirect routes through Kansas City are 785 and 1,174 miles, respectively, or a difference of 389 miles There the contention under section 3 was that complainants were receiving less transportation service at rates the same as those paid by competitors on indirect routes, and that they were thereby deprived of natural and geographic advantages the benefit of which they should rightfully reap. As indicated, protestant's principal contention in this proceeding is identical with that of complainants in the case cited, and it will be observed that the out-of-line hauls do not differ materially. The proposed rates and routes via the ports to the Southeast could be approved only if we find that their establishment would result in a substantial gain of traffic to the Frisco and in little or no disadvantage to the Oklahoma dealers.

The evi

dence does not establish such facts and the suspended schedules providing these rates and routes have not been justified.

The rail-and-water and rail-water-and-rail rates from Oklahoma to New England, in connection with which respondents at the request of the Frisco here seek to permit concentration, present a different situation. These rates were established as a result of Houston Cotton Exchange v. A. & A. R. R. Corp., 87 I. C. C. 392, 93 I. C. C. 268, and New Orleans Joint Traffic Bureau v. A. & A. R. R. Corp., 95 I. C. C. 77. They were made with relation to the corresponding allrail rates and were the equivalent of the all-rail rates after payment of marine insurance. The necessity for concentration arrangements on cotton is so well recognized, and the concentration arrangements so generally maintained, that neither the complaints nor the decisions in the cases just cited dealt directly with that question. A reading of the decisions, however, leaves no doubt that it was assumed that concentration arrangements would be continued. Indeed, unless subject to concentration arrangements the rates prescribed are higher than the all-rail rates whenever the cotton is concentrated, as is practically all of it. The Frisco and the Rock Island, however, were so opposed to the establishment of the rail-and-water and rail-water-and-rail rates prescribed that they prevailed upon respondents to withdraw the concentration arrangements in connection with rates from points on those two carriers. Respondents now desire to remove the restriction against such concentration. arrangements and thus effect a compliance with at least the spirit of the decisions cited. The protestant here was one of the complainants in the Houston Cotton Exchange case, supra, although it took no active part in the proceedings.

Under the proposed schedules the concentration arrangements at the ports which would become available in connection with these rail-and-water and rail-water-and-rail rates are more favorable than those which would become available to the Oklahoma cotton dealers. But the character and extent of the arrangements at the ports are determined by the carriers serving the ports and are beyond the control of the Frisco. Inasmuch as cotton ordinarily moves only under concentration arrangements, the Frisco, in order to participate in any of this traffic, must permit concentration in connection. with these rates, and consequently it has no choice but to make them subject to the concentration arrangements now in effect at the ports. Under these circumstances, the participation by the Frisco in joint rates to New England in connection with which more favorable concentration arrangements are permitted at the ports than are granted by the Frisco at points on its line in Oklahoma in connection with

similar traffic does not result in undue prejudice to Oklahoma dealers. Central R. R. Co. v. United States, 257 U. S. 247.

We find that the suspended schedules naming the proposed rates and routes to the Southeast have not been justified. An order requiring their cancellation will be entered. We further find that the suspended schedules removing restriction against concentration arrangements in connection with the rail-and-water and railwater-and-rail rates to New England have been justified. An order vacating the order of suspension will be entered.

157 I. C. C.

No. 191281

CHRIS THOMPSON v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

Submitted May 27, 1929. Decided October 15, 1929

Reasonableness of charges collected for feed furnished livestock held for fattening at Montgomery, Ill., found not to be within the jurisdiction of the commission. Complaints dismissed.

D. P. Price, Arthur M. Geary, and Arthur S. Vosburg for complainants.

Kenneth F. Burgess, Walter McFarland, and M. G. de Quevedo for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER TAYLOR, Commissioner:

No exceptions were filed to the report proposed by the examiner. Complainants are individuals engaged in raising and marketing livestock, and the administrator of the estate of J. A. Woodson. By complaints filed on December 20, 1926, and January 26, 1927, they allege that the charges collected for feed furnished at Montgomery, Ill., during the months of January to May, inclusive, 1920, in connection with the transportation of numerous carloads of sheep and lambs shipped into Montgomery from points outside of Illinois and subsequently reforwarded to Chicago, Ill., on through billing were in excess of those applicable under the tariffs in effect at that time. We are asked to award reparation in the amounts of the alleged overcharges. The claims were informally presented on February 28, 1921.

The yard at Montgomery is on the Chicago, Burlington & Quincy, hereinafter called the Burlington. That carrier filed a general denial for answer. The director general in addition to a general denial interposed the defense that we are without jurisdiction over the subject matter covered by the complaints. In this plea to the jurisdiction the Burlington joined. The parties filed an agreed statement of facts. The question of our jurisdiction was argued on brief.

This report also embraces No. 19128 (Sub-No. 1), W. R. Woodson, Administrator of Estate of J. A. Woodson, v. Same; No. 19128 (Sub-No. 2). A. H. Barth v. A. W. Mellon, Director General of Railroads, as Agent, et al.

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