under the firm name of Wagner, Zagelmeyer & Company, with headquarters at Sandusky, Ohio, where the office of the Wagner Lake Ice & Coal Company is located. During that month the firm erected an ice house on the shore of a little bay of Lake Huron, called Tobico, about 7 miles north of Bay City, Mich., along the line of the Detroit & Mackinac Railway. The ice house was given the name of the bay on which it is situated, as a billing point, and is the only industry in that vicinity.

Defendants are common carriers of interstate traffic, and the Detroit & Mackinac Railway Company furnishes the only transportation facilitics available to complainants as shippers of ice from Tobico. The railway line of this company extends from Bay City on the south, where it connects with the Michigan Central, Pere Marquette and Grand Trunk Railroads, to Cheboygan, Mich., on the north, a distance of 195 miles. The road was originally much shorter, without connections at either end, and was constructed by a lumber company for the purpose of marketing lumber and forest products. After a large part of the timber growing along its line had been cut and sold, and on November 1, 1893, the road passed into the hands of a receiver. February 1, 1895, it was purchased by the Detroit & Mackinac Railway Company, and extensions were made to Bay City and Cheboygan. A large part of the road runs through a thinly settled and not very fertile section of the state of Michigan.

Complainants stored about 10,000 tons of ice at Tobico, which was to be sold by The Wagner Lake Ice & Coal Company at Sandusky, under an arrangement for a division of profits amongst the members of the firm. The selling company is a large concern, owning six ice houses at Sandusky and owning or controlling a number of others located at various points in Ohio and Michigan. It was the custom of the company when orders for ice were received at its office in Sandusky to parcel them out to various ice houses owned or controlled by it, as might be most convenient for shipment. The complaining firm employed one of its members who resided in North Bay City to manage the business at Tobico, receive orders for shipments of ice, superintend the loading into cars, and bill shipments to their respective destinations. Orders were usually telephoned from Sandusky either in the morning for that day's shipments or in the evening for shipment the next day. The manager at Tobico had no authority to make sales or shipments of ice except upon receipt of orders from Sandusky.

Prior to the organization of the complaining firm officials of the Detroit & Mackinac Company were consulted, and they agreed to construct a switch track from the main line of the road to the ice house in question, and to care for the traffic offered by complainants.

A switch track 690 feet in length was accordingly laid from the main track to the ice house by the railway company and service of cars therefor made by switch engines from Bay City.

The first shipments of ice were made July 13, 1906. It is admitted that sufficient cars were furnished up to and including September 17, 1906. It appears that prior to that date more cars were offered, and could have been furnished, than were necessary to accommodate complainants' orders from Sandusky. Between September 17 and October 3, 1906, but few cars were furnished, and after the last named date no cars at all were furnished, although daily requests were made therefor. During the months of October and November, and until the middle of December, 1906, there was a strong demand for ice, the harvested crop throughout the country being short.

At Tawas, a point 54 miles north of Tobico on the line of the Detroit & Mackinac Railway, which road furnishes the only transportation facilities thereat, are located ice houses owned by three other concerns, and also two ice houses owned by the Detroit & Mackinac Railway Company. The ice stored by the railway company is used in car refrigeration and for other railway purposes, and the surplus at the end of the season is disposed of in Bay City. The storing capacities of the ice houses owned by these three companies in Tawas are, respectively, 7,000, 2,500, and 1,500 tons. The complainants shipped 176 cars of ice from July 13 to October 3, 1906, inclusive, and there were shipped by the three companies from Tawas, beginning June 12 and continuing during the year 1906, 268 cars.

The total freight equipment of the Detroit & Mackinac Company during the year 1906 does not appear. About 82 per cent of the traffic passing over the road that year consisted of lumber, forest products, coal, stone, sand, etc., and a large part of the equipment was made up of flat and gondola cars suitable for transporting freight of that character. The total number of box cars owned by the company was 545, and of this number it appears that during the year 1906, after June 1, an average of 269 cars were off the company's line, and that it was unable to secure their return by connections. The company also owned eight refrigerator cars which were constantly in use for purposes of local shipments of perishable freight.

When shipments of ice began from Tobico the officials of the Detroit & Mackinac Company were informed that The Wagner Lake Ice & Coal Company had made arrangements with the Michigan Central Railroad Company to furnish cars sufficient to transport the traffic that complainants might have for shipment. It seems to have been understood that shipments from Tobico would be made over the Michigan Central line from Bay City. That road for a

time did furnish cars in sufficient numbers to meet complainants' demands, but late in September the supply began to fall off, and by October 1, 1906, no cars were received for this traffic by the Detroit & Mackinac from the Michigan Central. Later in October the Michigan Central informed the Detroit & Mackinac Company that it would be unable to furnish more cars for the reason that it did not have enough for the traffic offered on its own line.

Prior to September 15, 1906, complainants were frequently urged by officials of the Detroit & Mackinac Company to increase their shipments of ice if they wished to dispose of what they had stored. They were informed a number of times that a car shortage was impending, but the local manager of the firm was unable to, or at least did not, secure orders for increased shipments.

A shortage of cars for transporting all kinds of freight began about September 15, 1906, which seriously affected most of the lines in the United States, and from October 1 until after the close of 1906 a freight car famine prevailed to a greater extent than was perhaps ever before known. After September 15, 1906, the Detroit & Mackinac Company made repeated efforts to secure freight cars from its connections for the use of complainants and other shippers along its line of road, but without success. Its own available cars were constantly in use for local traffic, and at times it was compelled to use its baggage cars on passenger trains for ordinary freight shipments between points on its own line. Cars sent out of the state of Michigan were not returned, and after October 1, 1906, so far as the record shows, it did not receive a single car from its connections.

It appears that there were shipped from Tawas by the three ic companies 30 cars in October, 10 cars in November, and 3 cars in December, 1906; that only 2 of these cars were shipped to points outside the State of Michigan; and that most of the whole number had been shipped into Tawas and unloaded there.

November 8, 1906, complainants sold their ice house, reserving the ice remaining therein until January 1, 1907. The amount of ice in the house at that date does not definitely appear, estimates of witnesses varying from 1,000 to 3,000 tons. About 1,000 tons of ice in the largest house at Tawas were not sold during the year 1906. Shipments of ice from Tobico for the most part were made to Toledo and Cleveland. No shipments by complainants were made to Bay City or other points on the Detroit & Mackinac road, and no orders for such shipments were received. The rate on ice from Bay City to Toledo over the Grand Trunk and Michigan Central is 80 cents per ton in carloads and $1.10 per ton from Bay City to Cleveland. The distance, via short line, from Bay City to Toledo is 148 miles, and to Cleveland, 261 miles. The joint freight tariff on ice

shipments issued by the Detroit & Mackinac Company September 10, 1906, names a rate of $1.10 per ton from Tobico and Tawas to Toledo and $1.50 per ton to Cleveland. This rate was in fact effective for the year 1906 prior to the issuance of the tariff. Shipments from Tobico and Tawas to Toledo are carried from Bay City by the Michigan Central, Pere Marquette, or Grand Trunk lines, and shipments to Cleveland are participated in by a third carrier. On shipments to Toledo the Detroit & Mackinac Company's proportion of the joint rate is about 50 cents a ton, and its proportion on shipments to Cleveland is about 37 cents.

An ice house owned by the Union Ice Company is located about 3 miles nearer Bay City than Tobico, and shipments from that company's plant take a switching charge in addition to the rate of $5 per car, where shipments are made from Bay City over any other line than the Grand Trunk, which serves the Union Ice Company. The ice houses at Tawas lie alongside the main track of the Detroit & Mackinac Railway, and the car service in and out is handled by local freight crews.

Section 3 of the act prohibits the making or giving of any undue or unreasonable preference or advantage to any shipper or any description of traffic, or subjecting any shipper or traffic to any undue or unreasonable prejudice or disadvantage. Under the law every shipper is entitled to fair and equal treatment in the use of cars and other facilities of shipment. Therefore the first question presented by this record is whether complainants were unjustly discriminated against or otherwise unduly prejudiced by the Detroit & Mackinac Company in the furnishing of cars for ice shipments during the year

1906.

It was after September 15, 1906, that complainants experienced difficulty in securing sufficient cars to supply orders for ice received at Tobico from Sandusky. The evidence clearly establishes and complainants admit that prior to that time the service was satisfactory. More cars could have been furnished than were used by complainants, but the system under which their business was conducted prevented increased shipments. From about September 15, 1906, and continuing until after January 1, 1907, a car shortage, amounting to a famine of freight transportation facilities throughout the country after October 1, 1906, existed. This car shortage, which prevailed on the Detroit & Mackinac in common with all other railroads, was brought about by circumstances over which that company had no control and for which it was not responsible. So far as appears, the freight equipment of the Detroit & Mackinac road during the year 1906 was adequate for all ordinary and usual traffic demands along its line, and it had made such arrangements with its connections for

supplying it with cars when needed as would justify the reasonable expectation that all shipments offered would be promptly transported to destination. The Detroit & Mackinac Company made every effort possible to supply complainants with cars ordered and demanded after October 1, 1906, but could not get them from connections and had not sufficient of its own to take care of the local traffic offered along its line. The number of cars furnished to shippers at Tawas after October 1, 1906, were supplied from those unloaded at Tawas and reloaded with ice destined to Michigan points. The number of cars furnished complainants up to October 3, 1906, compared with those furnished shippers of ice at Tawas, is convincing that the former were not discriminated against on the whole season's business. When the road could have supplied more cars complainants could not use them, and demands for cars were made during a period when the evidence shows it was impossible for the road to comply therewith. Under these circumstances we are unable to find from the evidence that complainants were unduly prejudiced or unduly discriminated against by the Detroit & Mackinac Company in furnishing cars for transportation of ice from Tobico during the year 1906.

There is no evidence that the joint rates on ice from Tobico to Toledo and Cleveland are unreasonable per se. Complainants rely wholly upon the fact that Tobico is 54 miles nearer Toledo and Cleveland than Tawas, which takes the same rate, and upon the fact that the rate from the Union Ice Company's plant to Toledo via the Grand Trunk Railroad is but 80 cents per ton in carloads, to establish their claim that the rates in question are excessive or otherwise unlawful. The rate of 80 cents per ton from Bay City to Toledo is not peculiar to the Grand Trunk Railroad, but is the rate charged by the Michigan Central and Pere Marquette. To this rate of 80 cents on shipments from the Union Ice Company's plant is to be added a switching charge of $5 per car, if the shipment from Bay City is via any other line than the Grand Trunk. If the Grand Trunk carries the shipment to Toledo, which it can do over its own line, the switching charge is absorbed by it. No switching charge is made for service at Tobico, which is 7 miles from the nearest railroad station on the Detroit & Mackinac Railway, and 3 miles farther from Bay City than the Union Ice Company plant. Under these circumstances the lower charge by the Grand Trunk made to the Union Ice Company for shipments to Toledo does not of itself establish that the joint rate of $1.10 from Tobico to Toledo via the Detroit & Mackinac and the Michigan Central is unreasonable or unjust. Complainants furnished no evidence that shipments for the Union Ice Company were made under substantially similar circumstances and