(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

Johnston case that the Commission would be justified in reaching a different conclusion in the matter of reparation.

In this regard the complainant has wholly failed. No evidence was presented other than general statements that rates were different in other sections of the United States from those which obtained between the points complained of; nor was any effort made to distinguish conditions between points named in the complaint and points named in the Johnston case. Hence the Commission can do nothing further than follow the opinion therein expressed and decline to grant reparation on all the shipments between points within the present state of Oklahoma.

The only other questions left for consideration are: first, Is the rate on coal from Hartford, Ark., to Kingfisher, Okla., unreasonable and unjust; and if so, what should be the rate for the future? second, Is the complainant entitled to reparation on shipments made in the past? From Hartford to Kingfisher the distance is 257 miles. The rate on lump coal on June 25, 1907, now in effect, was $1.70, and on slack coal $1.50; the rate per ton per mile on the former being 0.67 of a cent and on the latter 0.59. In the Johnston case, above referred to, the Commission fixed the rates for a distance of 239 miles at $1.95 for lump, being 0.72 of a cent per ton per mile, and $1.35 for slack, being 0.61 of a cent per ton per mile, and practically the same rate per ton per mile for the 290-mile haul. These rates were fixed by the Commission after a full and careful consideration of the conditions in that section of the country, and the order of the Commission fixing these rates for two years has been complied with by the defendant carriers. These rates thus prescribed by the Commission, as will be seen, are higher per ton per mile than the rates now in effect between the points here complained of. In the absence of any showing that the circumstances and conditions are dissimilar in the two cases or that the Commission was in error in the Johnston case, we are of opinion that no reduction should be made at this time in the rates between the points complained of. The tariffs on file in the Commission show that rates on lump coal have been decreased 40 per cent during the last five years.

All that has been said in this case concerning the ground for the refusal to grant reparation on shipments between points within the present state of Oklahoma is applicable to the interstate shipments from Hartford, and for these reasons reparation is denied. An order will be entered in accordance with the views herein expressed.

13 I. C. C. Rep.

No. 1155.

F. J. GENTRY

v.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY AND ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.

LANE, Commissioner:

REPORT OF THE COMMISSION.

The complaint was filed on June 28, 1907, by a retail coal dealer located at Pond Creek, Okla.

Complaint is made of the rates on coal from Weir, Wichita, and Midway, Kans., and Dow, Lowe, Gowan, Alderson, Holdenville, Wilburton, and Haileyville, Okla., (formerly Indian Territory) to Goltry, Okla., and reparation is claimed.

The questions involved as to the shipments between the points in Oklahoma are the same as those in the case of Haines v. C., R. I. & P. Ry. Co. et al. supra, and as to Oklahoma points reference is made to that opinion for the reasons for disallowing such claims.

The only other questions left for decision are, first, is the rate on coal from Weir, Wichita, and Midway, Kans., to Goltry, Okla., unreasonable and unjust; and if so, what should be the rate for the future? Second, is complainant entitled to reparation?

No evidence was offered by complainant tending to show that these rates were unreasonable or unjust, other than the reference to the rates in other sections of the United States, with no explanation of the conditions incident to the movement of coal in those sections. An examination of the tariffs on file shows that the average distance of Goltry, Okla., from the group of mines in Kansas, in which are included Midway and Weir (no rates being quoted from Wichita, because no coal is shipped from that point, although complaint is made of it), is 268.9 miles; that the rates in effect from those mines to Goltry, Okla., on April 21, 1904, were, on lump coal, $2.50, and slack $2 per ton, making 0.92 and 0.74 of a cent per ton per mile; that the rates in effect June 28, 1907 (which are the present rates), between the same points are $1.85 on both lump and slack coal, making 0.68 of a cent per ton per mile.

While the Commission is of opinion that the rates on lump coal from the points named above to Goltry, Okla., should not be held to be unreasonable at this time, yet it thinks the rate on slack coal should be somewhat lower than that on lump and is therefore of the opinion that the rate on the former between the points in controversy, except

from Wichita, should be not higher than $1.50 per ton. Reparation will not be granted on account of past shipments.

An order will be entered in accordance with the views herein expressed.

No. 1114.

KINGFISHER MILL & ELEVATOR COMPANY

v.

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

REPORT OF THE COMMISSION.

LANE, Commissioner:

The complaint was filed on June 25, 1907, and is by a corporation engaged in operating a mill and elevator at Kingfisher, Okla., which ships mill products and grain out of Kingfisher over defendants' lines and coal and slack over said lines into said city.

This case involves the question of rates on coal from Hartford and Huntington, Ark., and Dow, Haileyville, Wilburton, Alderson, South McAlester, Prairie Creek, Craig, Howe, Bonanza, Hackett, and Henryetta, Ind. T., (now Oklahoma) to Kingfisher, Okla. It also involves what is termed the milling-in-transit rate into and out of Kingfisher from points along the line of the Chicago, Rock Island & Pacific and other roads.

So far as the shipments of coal are concerned, the same questions are involved as in the case of Haines v. C., R. I. & P. Ry. Co. et al., supra, and for the reasons therein stated are likewise disposed of.

So far as the complaint relates to the milling-in-transit of grain, it involves on grain rates from many stations on the Chicago, Rock Island & Pacific Railway in Kansas and Oklahoma, intc Kingfisher, and the rate out to points along the lines of the same railway. The complaint itself does not name the stations between which rates complained of are in effect, but it is in the following general language:

That during all the times hereinafter mentioned, the respondent, the Chicago, Rock Island & Pacific Railway Company, has received for carriage from complainant at the various points of origin and carried to the points of destination, upon the dates, the quantities of merchandise either direct or milling-in-transit routing, shown by complainant's schedule hereto attached marked "Exhibit B," and made a part hereof which is true and correct in every particular, and shows the date of such transaction, the car number, and initial, the weight, rate of freight paid, the highest legal rate