peculiar advantage is a sufficient reason for giving to that locality this advantage. In our opinion rates on lumber from all points of production west of the Mississippi River should be the same to Lincoln and Omaha. RICE. The rice consumed in the Missouri Valley was at one time brought partly from the Orient and partly from South Carolina. To-day it all comes from the fields of Louisiana and Texas, and can reach Lincoln, as already said, by the same distance and at the same cost of service as Omaha. We see no good reason why the rate adjustment of former days should continue after every condition, which induced that adjustment has passed away. No higher rate should be applied to the transportation of rice from southern points west of the Mississippi to Lincoln than to Omaha. ana. GLASS. With respect to glass the case is even stronger. This commodity was also originally produced exclusively in the east, mainly in IndiThe rates were, of course, 3 cents per 100 pounds higher to Lincoln that to Omaha. To-day the source of supply has moved. Most of the glass consumed in Lincoln is purchased in the gas belt of Kansas and reaches Lincoln either via Kansas City or some route through the interior of Kansas. The rate to Omaha is not abnormally low. Under these circumstances what possible reason can be assigned why a higher rate should be charged on glass and glassware from Kansas points to Lincoln than to Omaha? In our opinion the maintenance of such higher rates is an undue discrimination, and therefore unlawful. SALT. At one time eastern salt fields, notably Michigan, supplied this whole territory. To-day Lincoln draws practically its entire supply of salt from Hutchinson and other Kansas producing points. The distance from Detroit to Omaha is 780 miles, from Hutchinson 505 miles; and the element of distance is still more in favor of Lincoln. It seems absurd to say that Lincoln should pay for this commodity, which is produced in the west, more than Omaha, for the sole reason that originally the commodity was purchased in the east. It was suggested that the rate from Kansas points of production to Omaha must be the same as the rate to Kansas City, and that this low rate, owing to shorter distance, might well be less than that to Lincoln. But we do not find in this suggestion any reason for maintaining a higher rate from the Kansas fields to Lincoln than to Omaha, and in our opinion such higher rate ought not to be continued. EGG-CASE FILLERS. Large quantities of eggs are shipped into both Omaha and Lincoln from the country, concentrated into carloads at these points, and shipped out in various directions. In the shipment of these eggs to markets of consumption, what are known as egg-case fillers are used. These fillers are obtained to some extent in Iowa, but come mainly from points in the gas belt of Kansas. The rate on this commodity from Kansas points is 3 cents higher to Lincoln than to Omaha. It is evident that this is a discrimination against the operator at Lincoln. He pays a rate upon his fillers which is 3 cents higher than that paid by the operator at Omaha, and when he ships the eggs out to the east, and most shipments are in that direction, he pays an additional 3 cents per 100 pounds over the Omaha operator. No competitive conditions were shown which seemed to us to justify the imposition of the higher charge to Lincoln than to Omaha from these Kansas points, and in our opinion the rate should be the same. SUGAR. This Commission has in the past held that a higher rate might be applied from Pacific coast points to the transportation of sugar to an intermediate point like Lincoln than to a Missouri River point like Omaha. At the present time the rate from all western points is the same to both Lincoln and Omaha, probably because a very considerable portion of the sugar which moves under this rate is beet sugar manufactured at various western points. Rates from the east are still 3 cents higher to Lincoln than to Omaha, and the same differential is observed from the south. Most sugar originating in the south is shipped from New Orleans, and under the former decision of the Commission it is evident that the rate from that point might properly be higher to Lincoln by 3 cents. Sugar is, however, also produced at certain points in Louisiana and west of the Mississippi River, and this complaint attacks the rates from those points. We see no reason why our holding as to lumber and rice ought not to be extended to sugar when shipped from points west of the Mississippi River. The defendants, with some earnestness, urge that the holding which we have made will require them to readjust their distributing rates from Lincoln and from Omaha, but we are unable to appreciate the force of this suggestion. Cities have no indefeasible lien upon any given jobbing territory. Changes in conditions are always likely to affect the boundaries of that territory. Conditions are not the same when Lincoln draws its supplies from points of production in the 13 I. C. C. Rep. west or south that they were when these supplies came through Omaha from the east. It is no part of the business of a railroad to so adjust its tariffs as to artificially define the territory into which particular jobbing localities may sell. The defendants should make the same rates from points of origin in Kansas and south and west of the Mississippi River to both Lincoln and Omaha upon lumber, glass and glassware, salt, rice, egg-case fillers, and sugar, and they should not charge in excess of 14 cents per 100 pounds more to Lincoln than to Omaha on cement and paving brick. 13 I. C. C. Rep. No. 1060. BAER BROTHERS MERCANTILE COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY AND DENVER & RIO GRANDE RAILROAD COMPANY. Submitted December 30, 1907. Decided April 6, 1908. 1. A railroad company whose road lies entirely within the limits of a single state becomes subject to the act to regulate commerce by participating in a through movement of traffic from a point in another state to a point in the state within which it is located, although its own service is performed entirely within the latter state. 2. To maintain a petition before this Commission for the recovery of excessive freight charges it is not necessary that the payment of the freight should have been made under protest. 3. A rate of 45 cents applied to the transportation of beer from Pueblo to Leadville, which is part of a through transportation from St. Louis to Leadville, is excessive; such rate should not exceed 30 cents per 100 pounds. Reparation awarded. 4. The bringing of a suit in the United States circuit court for the recovery of excessive railway charges is not a bar to a subsequent proceeding before this Commission where that suit was dismissed without prejudice, and for the reason that the Commission had never passed upon the reasonableness of the rate involved. W. B. Harrison for complainant. E. N. Clark for Denver & Rio Grande Railroad Company. REPORT OF THE COMMISSION. PROUTY, Commissioner: The complainant is a corporation engaged in the liquor business at Leadville, Colo., which seeks by this petition to recover of the defendants damages on account of certain alleged unreasonable charges for the transportation of beer in carloads from St. Louis, Mo., to Leadville. The beer was transported at various times between July, 1902, and April, 1907. The rate under which it moved was a combination of the rate of the Missouri Pacific from St. Louis to Pueblo, which during a part of the period covered by this controversy was 50 cents per 100 pounds, and during a part 45 cents per 100 pounds, and the rate of the Denver & Rio Grande from Pueblo to Leadville, which was during all the time 45 cents per 100 pounds, thus making a total rate during a portion of the period of 90 cents and during the remainder of 95 cents. The complainant insists that this should not have exceeded 60 cents or at the most, under the circumstances of this case, 70 cents. The beer was delivered by the Lemp Brewing Company to the defendant, the Missouri Pacific Railway Company, at St. Louis, with instructions to transport the same to Leadville, Colo., for delivery to the complainant, and with the further instruction that shipments should be routed beyond Pueblo via the Denver & Rio Grande. At the time of receiving the shipment the Missouri Pacific in all cases issued to the Lemp Brewing Company a shipping receipt, stating that the beer had been received by it for shipment to the order of the Baer Brothers Mercantile Company, Leadville, Colo., via the Denver & Rio Grande Railroad. The freight upon the first shipment was paid by the complainant at Leadville to the Denver & Rio Grande Company. The complainant stated to the agent of that company that it regarded the rate as excessive and unlawful and declined to pay the same except under protest, whereupon the agent of the Denver & Rio Grande accepted the amount of the freight and wrote upon the expense bill or receipt for such payment the words " paid under protest." In all other cases the freight was paid by the Lemp Brewing Company at the request of the complainant and on its account, and was by the instruction of the complainant paid under protest; and this fact in all cases, with possibly one or two exceptions, was minuted upon the receipt given to the Lemp Company by the agent of the Missouri Pacific at the time of the payment of the money and the execution of the receipt. The complainant and also the Lemp Brewing Company by the instruction of the complainant notified both the Missouri Pacific Company and the Denver & Rio Grande Company at some time before the bringing of the suit hereinafter referred to that these charges were considered unreasonable and made claim for refund. After considerable correspondence this claim was denied, and the complainants brought suit. Still later that suit was dismissed and this petition filed. The shipment upon which the freight was paid at Leadville to the Denver & Rio Grande by the complainant was transported by the |