No. 1232.

MERCHANTS TRAFFIC ASSOCIATION.

PACIFIC EXPRESS COMPANY.

Submitted October 30, 1907. Decided February 10, 1908.

Complaint is made of a general special rate of $2 on milk and cream from St. Paul, Nebr., to Denver, Colo., lawfully in force only because of inadvertent omission of defendant to file its mileage scale of milk and cream rates under which the lawful rate between these points would have been 58 cents. After this complaint was brought defendant filed on short notice mileage tariff naming the 58cent rate. This being satisfactory to the parties it was stipulated on the hearing that the complaint might be dismissed. In making the stipulation effective the Commission orders the maintenance of the 58-cent rate for a period of not less than two years, but holds the case under further advisement for purposes stated in the opinion.

Albert L. Vogl for complainant.

W. B. Hodges for defendant.

REPORT OF THE COMMISSION.

HARLAN, Commissioner:

This complaint, filed on August 23, 1907, challenges as exorbitant and unreasonable, and therefore in violation of the act to regulate commerce, rates then in effect, under the published tariffs of the defendant, for the transportation of milk and cream between various points in the States of Nebraska and Colorado. It is directed more particularly against a rate of $2 per 100 pounds for the movement of those commodities between St. Paul, in the former state, and Denver, in the latter.

Upon the hearing the following facts were disclosed: On November 3, 1906, the defendant filed with the Commission its classification, transfer tariff, and general tariffs; but it failed to file its commodity tariffs. The result was that the only authority of record for the transportation of milk and cream between St. Paul

and Denver was a rate of $2.75 per 100 pounds. Express companies were not brought within the terms of the act until the amendatory act of June 29, 1906, was passed, and it was not until some months afterwards that they were able to prepare and file all their tariffs as required by law. During the interval, as is well understood, there were some irregularities on their part in that the rates actually charged and collected by them were not always those provided in their published tariffs. And this defendant during that period was in fact charging and collecting only 58 cents per 100 pounds, when its published rate was $2.75.

On July 17, 1907, the defendant filed its commodity tariffs, intending, as appears from its answer and from statements made by its counsel at the hearing, to make lawfully effective the 58-cent rate which it had actually been charging and collecting for the movement of milk and cream between St. Paul and Denver. It inadvertently omitted, however, to file a distance scale with the schedule last referred to and as a consequence the only rate that could lawfully be applied on milk and cream was a new general special rate, which seems to be analogous to a class rate, of $2 per 100 pounds. Immediately upon discovering the error the defendant promptly notified its shippers of the oversight and also advised them of its intention to bring the facts at once to the attention of the Commission with a view to securing its authority to refund, upon such shipments as might move under the $2 rate, the difference between that rate and the rate of 58 cents per 100 pounds which it had intended to make effective. It also at once requested special authority to correct the mistake by filing a tariff on short notice; and this authority having been given, the prior rate of 58 cents was soon restored. An examination of the records of the Commission reveals the fact, however, that the tariff schedule, I. C. C. No. 197, thus put in effect on short notice on September 8, 1907, contains a clause providing for its expiration on October 9, when it was to be superseded by another schedule. This new schedule, I. C. C. No. 198, which was duly filed to become effective on October 10, was arranged on a basis that would seem to yield a rate of 80 cents per 100 pounds between St. Paul and Denver. But before it became effective proceedings were instituted and an order was entered in the United States circuit court for the northern district of Illinois, restraining the putting into effect and the collection of the proposed new rates until the question of their reasonableness could be examined in an appropriate proceeding before this Commission, and reserving jurisdiction for further proceedings in that court in case such an inquiry could not be prosecuted before the Commission within a reasonable time. Under the restraint of that order, the previous schedule, I. C. C. No. 197, although it has

expired according to its terms, seems to be regarded by the defendant as the only basis upon which its charges may be assessed. And it is now charging between St. Paul and Denver the rate of 58 cents per 100 pounds provided in that schedule, which rate was admitted at the hearing to be satisfactory both to the defendant and to the complainant. In the meantime the Fairmont Creamery Company, acting under the restraining order of the court, has filed its complaint, docket No. 1292, against this defendant as well as against other express companies and numerous railroad companies, making a comprehensive issue of their milk and cream rates between these and many other points.

In view of all the circumstances in the case the stipulation of the parties, verbally presented at the hearing, for the dismissal of the proceeding may be carried into effect. But we shall enter the usual order requiring the defendant, for a period of not less than two years, to maintain in effect between St. Paul and Denver a rate not exceeding 58 cents per 100 pounds. The hearing of the complaint of the Fairmont Creamery Company against this and other defendants may require some further order in this case, and for this purpose the record will be held under advisement.

An order will be entered in accordance herewith,

13 I. C. C. Rep.

No. 1425.

IN THE MATTER OF THE APPLICATION OF THE GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY FOR EXTENSION OF TIME TO COMPLY WITH "AN ACT TO PROMOTE THE SAFETY OF EMPLOYEES AND TRAVELERS UPON RAILROADS BY LIMITING THE HOURS OF SERVICE OF EMPLOYEES THEREON."

Filed January 15, 1908. Denied February 14, 1908.

A petition for relief under this act does not show "good cause" when it merely alleges that the law ought not to be enforced at certain stations or classes of stations because the number of train orders handled is small and there is no need of increasing the force of employees.

John I. Hall for petitioner.

KNAPP, Chairman:

REPORT OF THE COMMISSION.

The Georgia Southern & Florida Railway Company on January 15, 1908, filed its petition for relief under the above-entitled act, which was approved March 4, 1907, and by its terms was to take effect and be in force one year after its passage. The facts stated in this petition which need to be considered may be briefly summarized as follows:

After describing the location of the company's railroad and naming its terminals, it shows that a large number of train dispatchers and telegraph operators are employed in conducting its transportation business; and that at many stations along its lines the work of its telegraphers is quite light and easily performed, particularly at certain named places, ten in number, at which an extension of time is requested. The manner in which operations are carried on at these places is set forth in a letter of the general superintendent of the company which is made a part of the petition, and this is supplemented by an exhibit which purports to show, among other things, the number of train orders and other messages handled by the operators at

each of these stations, respectively, and the number of hours they were on duty during the thirty days from November 10, 1907, to December 10, 1907. It is evident from this exhibit that the average time occupied by employees at these stations during a twenty-four hour period in handling train orders and receiving and transmitting messages was comparatively small, and that other duties occupied the greater part of their working hours. For the purpose of disposing of this case it will therefore be assumed, whatever the actual fact may be in that regard, that two men could perform all the company's work at each of these stations, including such telegraph service as occasion may require, without severe or unusual exertion of body or mind.

Upon the facts above stated the petition asks that operators and agents at three of the stations named, after handling train orders for nine hours or less, may then be required to work a sufficient number of hours as clerks or otherwise to complete twelve hours in each twenty-four hours; that agents at six of the stations, who handle very few train orders or messages, may be required to remain on duty from thirteen to fifteen hours, and that an agent and operator may be allowed to divide the time during which the office at one station is kept open. The general showing as to each of these nine stations, and the only grounds upon which as to them an extension of time is asked, are the ease with which the entire service of the company is performed by two men and the needless expense of increasing the number. There is no allegation that the company is unable to obtain an additional force of telegraphers or that it has made any effort to do so. Neither is there any allegation that the company has insufficient funds to pay such an increased force as may be necessary to keep these offices open as at present and comply with the limitation upon hours of labor imposed by the act in question. The entire petition in substance and effect is merely an argument to show that additional telegraphers are not needed at any of these stations, and therefore the company ought not to be required to employ them.

It is entirely clear to us that this petition, under the most liberal interpretation of the facts set forth, presents no case for administrative relief, temporary or otherwise, from the requirements of this law. The only authority conferred upon the Commission in this regard is expressed as follows:

The Interstate Commerce Commission may, after full hearing in a particular case and for good cause shown, extend the period within which a common carrier shall comply with the provisions of this proviso as to such case.

The "proviso" referred to is that part of section 2 which provides that no employee who handles train orders by telegraph or telephone shall be required or permitted to be on duty more than nine hours 13 I. C. C. Rep.