(2) The benefits of this arrangement have been reaped by the shippers enjoying it and also by the Chesapeake & Ohio Railway Company, which, whether by express agreement or not, has received all of the inbound business of the shippers so favored by it.

(3) It also further appears that the assistant general freight agent of the Chesapeake & Ohio Railway Company, responsible for the above-described abuse, upon discovering that the same was under investigation by special agents of this Commission, undertook to make amends for the same to the Seaboard Air Line and the Atlantic Coast Line. To this end he ordered that a list be prepared of all cars which had, by his orders, been moved at a division of the joint through rate less in amount than the local rates to which they were legally subject. Being informed by one of his subordinates that this list would be a very long one, he then gave orders that the list should only show the cars moving during the months of August, September, and October, 1907. Having been furnished with a list covering these three months, he forwarded it to the southern lines with a statement that it showed "all" cars so misbilled which he had been able to discover.

(4) It also appears that certain records of the Chesapeake & Ohio Railway Company have been destroyed, contrary to the provisions of the act to regulate commerce. The testimony showed that the freight claim department of this railway is under the charge of the assistant general freight agent, he being the official responsible for the false transfer slips above referred to. The testimony further shows that the auditor of disbursements, on receiving from the freight claim office claims from shippers with direction that they be paid, inquires no further into the merits or legality of such claims than to ascertain from the auditor of freight receipts that the shipments to which the claims relate have moved and that the charges have been collected. All claims so passing through the freight claim office and paid upon the order of the assistant general freight agent prior to January 1, 1907, were destroyed during the latter part of the year 1907. This destruction appears to have been made by the auditor of disbursements under authorization of the comptroller of the Chesapeake & Ohio Railway Company.

So far as the matters disclosed are criminal in their nature, they will be referred to the United States district attorney at Richmond, with the request that prosecution be instituted against all parties therein involved.

13 I. C. C. Rep.

1. This Commission is the creature of statute, and its authority is derived from the act of Congress creating the Commission and the various amendments. Its function is to administer the act to regulate commerce and not to enforce conditions found in Federal or other charters. While a violation of the conditions of the acts of Congress granting the rights of way may be grounds for forfeiture, the remedy is in the courts, as it is not the province of this Commission to enforce compliance with conditions subsequent found in railroad charters.

2. Since the admission of Oklahoma as a state the Commission is without power to fix rates to be observed in the future within the present limits of that state.

3. Rates between points within the present limits of the state of Oklahoma held not unreasonable at the time shipments in question moved.

4. The present rate of $1.85 per ton on shipments of slack coal from Weir and Midway, Kans., to Goltry, Okla., is unreasonable and should not exceed $1.50 per ton.

5. Rates between other points outside the present state of Oklahoma and points within that state held not unreasonable.

West, Scott & Otjen, F. G. Walling, and F. L. Boynton for complainants.

E. B. Peirce and M. L. Bell for defendants.

No. 1113.

A. T. HAINES

V.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY AND CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY.

LANE, Commissioner:

REPORT OF THE COMMISSION.

The complaint, filed June 25, 1907, is by a retail coal dealer located at Kingfisher, Okla., and is that the rates from Hartford and Huntington, Ark., and Dow, Haileyville, Wilburton, Alderson, South McAlester, and Prairie Creek, Okla., (formerly Indian Territory) to Kingfisher, Okla., are excessive, and reparation is claimed on account of coal transported in the past.

The rates are challenged, (1) upon the ground that the Chicago, Rock Island & Pacific and the Choctaw, Oklahoma & Gulf (now a part of the Rock Island system) are limited in their charges by virtue of condition in the acts of Congress granting them rights of way through Indian Territory that the rates to be charged shall not be higher than the rates charged in Kansas, Arkansas, and Texas, and (2) that they are unreasonable and unjust.

Huntington, Ark., one of the points from which rates are questioned, is located on the lines of the St. Louis & San Francisco Railroad Company and it not having been made a party defendant, no order can be entered as to the rate from that point.

Dow, Haileyville, Wilburton, Alderson, South McAlester, and Prairie Creek are all within the present state of Oklahoma and the questions presented for determination as to rates between these points and Kingfisher are:

13 I. C. C. Rep.

(1) Are the rates between these points determined and limited by the provisions of the several acts of Congress granting rights of way to the defendants, wherein it is provided that the rates in Indian Territory shall not be higher than are charged in Kansas, Arkansas, and Texas.

(2) If not so determined and limited, has the Commission authority (a) to determine what shall be the rate for the future and (b) to award reparation because of unreasonable charges collected on past shipments.

(1) The Interstate Commerce Commission is a creature of statute, and its authority is derived from the act of Congress creating the Commission and the various amendments thereto. Its function is to administer the act to regulate commerce; not to enforce conditions found in Federal or other charters. And while a violation of the conditions of the acts of Congress granting the rights of way may be ground for forfeiture, the remedy would be through the courts. Moreover, the indefinite language of the legislation makes it impracticable to give application to its provisions. What certainty, for instance, is there in the provision that rates shall not be greater than are charged in three other state jurisdictions, when each of those states has a commission with authority to fix rates? Naturally, in the proper performance of their duties, these several commissions take into consideration in fixing rates on special commodities peculiar conditions incident to the transportation of the several commodities within their respective states. This statement makes it evident that the several standards could not be made the measure of rates in Oklahoma. Applying it to the particular case here under consideration, Kansas, Arkansas, and Texas have rates which are different for the transportation of coal for equal distances, and each of these commissions changes the rates within its jurisdiction whenever, in its judgment, the public interest requires.

Again, the two rights of way here concerned were granted to separate and distinct corporations. In granting one right of way Congress provided that the rates should not be higher than prevailed in Kansas. In granting the other right of way it provided that the rates should not be higher than in Arkansas "and" Texas. Since the passage of these acts, the two carriers have become consolidated into one system and are operated as a unit. In some of the instances complained of rates are made over the lines of what were formerly two carriers, but now one. Should it be held that the acts of Congress were to determine the rate, which would be the standard adoptedthe Kansas, the Arkansas, or the Texas rate? And, if either were selected, could the rate in that state be applied over what was formerly two carriers?

These are only a few of the insurmountable difficulties which would render it impracticable to give effect to the conditions under the acts of Congress referred to, even were we to hold that the provisions in such special acts conferred jurisdiction on this Commission, a position legally untenable. The only measure of the power of this Commission is found in the act to regulate commerce, as amended.

(2) Under the plain provisions of the act to regulate commerce there can be no contention that this Commission may fix rates to be charged by carriers in the future within the limits of the present state of Oklahoma. Therefore the only question left for consideration as to the shipments which were made between the points here under consideration is whether Oklahoma and Indian territories, having united and become the state of Oklahoma on November 16, 1907, the Commission has authority to grant reparation if it is of opinion that the rates charged on shipments made prior to the formation of the state were unreasonable at the time of such shipments.

While there is perhaps reason for doubt as to the jurisdiction of the Commission under such circumstances to make an order of reparation, we will herein, without deciding this question, determine this case upon the facts presented.

All the shipments which form the basis for the claim of reparation were made prior to April 3, 1907. On that date this Commission delivered an opinion in the case of Johnston v. St. Louis & San Francisco Railroad Co. et al., 12 I. C. C. Rep., 73, involving rates on coal from practically the same producing territory to Enid, a point within a few miles of Kingfisher, the destination of the coal here complained of. In that case the Commission, after a full consideration of all the testimony presented and a full investigation from all sources, held that reparation should not be granted, and an order was entered dismissing the complaint as to that feature. The complaint now being considered was filed within ninety days of the delivering of the opinion in the Johnston case, claiming reparation during a period covered by that case.

While it is true that the specific points of origin and the specific points of delivery in the present case are different from such points in the Johnston case, yet it is a fact that the traffic originates in the same general producing district and the point of delivery is only a few miles distant. Under such circumstances, the Commission having deliberately expressed its opinion in the matter of reparation on coal shipments, it was incumbent upon the complainant to show clearly either that the Commission was in error as to its finding in the Johnston case or that the circumstances and conditions relating to the shipment of coal between the specific points mentioned in this complaint were so different and dissimilar from the conditions between the points in the