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The defendant contends that the period covered was one of unusual commercial prosperity and activity and that similar results can not be expected through a series of years. It seems probable, however, that the operation of this property was extravagant during the first two years; that it is now upon an economical operating basis, and that if the uses to which gilsonite is put continue to be as numerous as they are—and there is every probability that they will increase this road ought to be able to earn upon a basis of $8 per ton a fair return upon the property invested. Everything must depend upon the quantity of gilsonite which is transported. At present practically the entire supply of this mineral goes out over the Uintah Railway. Should its use be materially curtailed or should some other source of supply be discovered, or some other avenue of transportation be provided, it would at once change the basis upon which our conclusion is founded and therefore require a reconsideration of the conclusion itself.

Since the preparation of the foregoing report we have received a communication from the attorneys for the defendant stating that during the last few months shipments of gilsonite have declined from 25 to 30 per cent, and further stating that a recent explosion and fire in the mine of the Gilson Company at Dragon will virtually suspend shipments of that company for some time to come. While we have not seen fit to change the conclusion reached, these facts do confirm the impression that, in view of the many uncertainties surrounding the operation of this property, the rate above established is not excessive.

The complainant claimed damages by reason of the exaction of this $10 rate and also for other alleged violations of the act to regulate commerce. No evidence was submitted upon the trial tending to show any damage to the complainant by reason of the other infractions of the act which he alleged, and the Commission is of the opinion that no reparation should be allowed under the circumstances of this case on account of excessive freight charges.

An order will issue directing the Uintah Railway Company to establish and maintain for two years a rate of $8 per ton for the transportation of gilsonite from Dragon to Mack. 13 I. C. C. Rep.

No. 933.

IN THE MATTER OF RATES, PRACTICES, ACCOUNTS, AND

REVENUES OF CARRIERS SUBJECT TO THE ACT TO REGULATE COMMERCE.

March 9, 1908.

Practices of certain carriers and certain shippers relative to interstate shipments

declared to be illegal, and criminal prosecutions requested to be instituted.

John H. Marble for the Commission.
Henry T. Wickham for the Chesapeake & Ohio Railway Company.

REPORT OF THE COMMISSION.

LANE, Commissioner:

A hearing in the above matter was held in the city of Richmond, Va., on the 19th, 20th, and 21st days of February, 1908, both oral and documentary evidence being received. From such evidence the following facts appear:

(1) For some years a fraudulent practice, participated in by certain dealers in grain and also by certain dealers in packing-house products and also by the Chesapeake & Ohio Railway Company, has obtained at Richmond, by means of which this railway company has favored such shippers at the expense of the Seaboard Air Line and Atlantic Coast Line, its southern connections. This practice has resulted in the obtaining for such shippers of rates less than local rates over the Seaboard Air Line and Atlantic Coast Line for shipments of grain and also for shipments of packing-house products, which local rates such shipments were legally bound to pay. This result has been accomplished by means of transfer slips issued by the station agent of the Chesapeake & Ohio Railway Company on the written instruction of the assistant general freight agent of this railway company, said transfer slips falsely conveying to the southern lines the statement that such shipments had originated at points beyond Richmond and were entitled to move from Richmond to destination in the Carolinas at a division of a through rate, such division being less in amount than the local rates to which these shipments were legally subject.

(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.

No. 1113.
A. T. HAINES

V.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

ET AL.

No. 1155.

No. 1157.
F. J. GENTRY

J. T. GIST
v.

V. CHICAGO, ROCK ISLAND &

SAME. PACIFIC RAILWAY COM

No. 1153. PANY ET AL.

ENID ICE & FUEL COMPANY No. 1114.

V. KINGFISHER MILL & ELE- CHICAGO, ROCK ISLAND & VATOR COMPANY

PACIFIC RAILWAY COM-
V.

PANY.
SAME.

No. 1154.
No. 1115.

SAME
OKLAHOMA MILL COMPANY

V.
V.

FORT SMITH & WESTERN
SAME.

RAILROAD COMPANY

ET AL.
No. 1116.

No. 1158.
SCHOWALTER & COMPANY

W. B. JOHNSTON
V.
SAME.

V.
CHICAGO, ROCK ISLAND &

PACIFIC RAILWAY COM-
PANY.

Submitted January 2, 1908. Decided March 9, 1908.

1. This Commission is the creature of statute, and its authority is derived from the 2. Since the admission of Oklahoma as a state the Commission is without power to fix

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.

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 $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.

REPORT OF THE COMMISSION. LANE, Commissioner:

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.

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