all, as heretofore stated, are on eastbound movements except one rate of $150 on live hogs in single-deck cars from Fort Worth and points in Kansas and Oklahoma to Los Angeles and San Francisco; and this rate on November 10, 1904, was advanced to $170, the same rate of which complaint is here made.

In discussing these comparisons of the rate in question with rates on eastbound movements, counsel analyzes at some length the conditions of traffic in the east and those prevailing in the west. He contends that the density of the traffic in the west is greater, that the trains are heavier, and the percentage of earnings to operating expenses less. To prove the correctness of these contentions the complainant has filed in the record numerous train-consist sheets, together with statements of freight tonnage and freight revenues of the defendant companies, based on reports made to the Commission. But we shall not endeavor here critically to examine these tables. Upon information that has reached the Commission in many cases and in a variety of forms, it is clear that the conditions of transportation east of the Missouri River, so far as they affect rates, differ very materially from conditions west of the river. Obviously a more forceful basis of comparison is on westbound rates on the same or related commodities and in the same or adjacent territory. There is a natural relation between the westbound rate on live hogs and the westbound rate on their products. The two commodities are competitive, and in fixing the rate on one its relation to the rate on the other can not fairly be disregarded. An improper adjustment of that relation in this case would necessarily work to the disadvantage either of the packer on the Missouri River or the packer on the Pacific coast. As shown in the table reproduced above, the rate on packing-house products in carloads from Missouri River points to Seattle has been maintained at $1.60 per 100 pounds for more than ten years. And as the present rate of $170 on live hogs is less, as heretofore shown, than the rate has been during the same period, it follows that the present relation of the rates on the two commodities is more to the advantage of the complainant than it has been at any time. It is admitted in the complaint that the present rate on packing-house products is a proper rate, and that the relation between that rate and the former rate of $261 on live hogs in double-deck cars of 36 feet in length is also properly adjusted. As before stated, the latter rate is equivalent to a rate of $170 on single-deck cars. It follows, therefore, that the relation is a proper one with respect to the present rate of $170 on live hogs. While the complainant objects to this inference, its force was not strongly denied on the argument. It was then contended by the complainant that even though the relation between the present

rate on hog products and the present rate on live hogs may be a proper one, this is no reason why the rate on live hogs should not be reduced if, as it contends, that rate in itself is excessive. It is urged that the rate on live hogs considered by itself is excessive and should be reduced, even though, in order that the relation between the two rates may be preserved, the reduction would result in pulling down the rate on packing-house products also. "If I were arguing the case from the standpoint of both articles of traffic," says counsel on the oral argument, "I should undertake to show that both of them are entirely too high." But no evidence was offered touching the reasonableness of the rate on packing-house products.

Further comparisons were made. Lists of rates on various representative commodities were offered in evidence both by the complainant and by the defendants. In each case the rate on live hogs is low and the rates on hog products are high as compared with the rates on the great majority of the other commodities enumerated. Each list shows that the rates on some commodities are higher and on other commodities lower than the rates on live hogs, and that is about all that is shown. In other words, we are still left to ascertain what is a proper rate on live hogs between the points in question. The most satisfactory comparison in any such controversy is with rates on the same product in the same direction. But, aside from the relation between the rate here challenged and the rates on hog products westbound, the only direct comparison of that kind disclosed by our investigations of the records of the Commission is with the rate on live hogs from these same Missouri River points to California terminals. The tariff schedules show that there is now in effect a rate of $200 on 30-foot single-deck cars. As compared with this rate it is manifest that the rate of $170 on 36-foot cars to Seattle, a practically equal distance, can not be said to be unreasonable or excessive. Other elements and factors touching the rate in question and its reasonableness are discussed in the record and were referred to on the argument; but it will not be necessary to consider them in detail or to take up one by one the several contentions forcefully advanced by learned counsel in support of the complainant's theory of the case. It will suffice to say that upon a review of the whole record we are of the opinion that the complaint is not supported by the testimony, and that the rate complained of is not out of line with other rates on the same commodity in the same direction to which reference has been made. Nor is it out of line with the rates on packing-house products, the two commodities being competitive. Moreover, we are impressed by the fact that under the rate complained of live hogs have been able to move freely to the complainant at Seattle and in increasing volume. The testimony of Mr. Frye shows that during

1905, after the $170 rate was established, his company received 345 carloads of hogs; during 1906 about 630 carloads; and the shipments. before the hearing in 1907 gave promise of a large increase in the number of carloads during that year. In the absence of more definite proof we are unable to say that a rate that produces these results is an unreasonable rate. Moreover, while that rate has permitted an increase in the volume of west-bound shipments of live hogs, it has not resulted in an increase of the west-bound shipment of hog products, as might be expected were the rate on the live animal unreasonably high. Definite figures were offered by the defendants tending to show that there had been no material increase during the last five years in the shipment of hog products from Missouri River points to the North Pacific coast. It may be well to add that in reaching this conclusion as to the present rate-adjustment we have not been unmindful of the alleged shrinkage in the weight of hogs while in transit, concerning which much is said in the record; nor have we overlooked the complainant's demand for a restoration of the doubledeck service and the reestablishment of a double-deck carload rate. The two questions are closely related. The usual carload weight for a single-deck car is 17,000 pounds, and for a double-deck car 26,000 pounds. The contention is that if the 26,000 pounds of live animals be distributed, 13,000 pounds to each deck of a double-deck car, there will be more room in which to feed and rest the hogs than is possible when 17,000 pounds of the live animal are loaded into a single-deck car; that the double-deck cars could go through to destination without unloading the hogs to feed and rest them; that this would result in a faster service, estimated at two days less than the single-deck service, and in a consequent diminished weight shrinkage, estimated at $35 less per car than the shrinkage in single-deck cars; and that in view of the alleged excessive shrinkage in single-deck cars the value of the service rendered to the shipper in transporting hogs in a car of that kind is less than the value of the service rendered in transporting them in double-deck cars, and would therefore justify a less rate. This is the substance of the argument made by the complainant's counsel in discussing the question of shrinkage. But it all proceeds on the theory that double-deck cars could go through to destination, with advantage to the shipper, without unloading the hogs for feeding and resting; and also on the presumption that return loadings will always be available for double-deck cars. And on both these points we find the evidence far from convincing. While hogs are frequently carried in double-deck cars, and it is entirely practical to transport them in that way, we do not think sufficient grounds are shown of record to justify us in requiring the defendants to furnish such special equipment for so long a haul, in the absence of some assur

ance of a return loading for such equipment. And no such assurance is to be found in the record.

It follows from what has been said that no sufficient grounds have been shown for disturbing the present rate of $170; or for an award of damages on the 1,259 carloads of complainant's hogs that moved under that rate; or for the alleged shrinkage in the weight of the hogs that moved in single-deck cars. The record discloses, however, that during the month of August, 1904, the complainant shipped to itself at Seattle 10 carloads of hogs originating at Ansley, Aurora, Broken Bow, and Central City, Nebr., under the then published rate of $200 for a 30-foot single-deck car. This is equivalent to a rate of $240 for a 36-foot single-deck car, which rate, when compared with the $170 rate for a 36-foot single-deck car made effective a few months after these shipments moved, was clearly excessive. On these 10 carloads we are of the opinion that the complainant is entitled to reparation at the rate of $70 a car. The additional profits on the hogs which, as it is claimed, the complainant would have been able to ship during the years 1903 and 1904 had the defendants maintained a lower rate during that period, rest wholly in conjecture and speculation; and such testimony can not be accepted as a sufficient basis for an order, even if it be assumed that the authority of the Commission extends to claims of that nature. It is alleged in the petition, as heretofore pointed out, that the local rates from producing points on branch lines are added to the through rate of $170, and thus produce an unreasonably high rate from those points; but the allegation was not discussed on the argument. We therefore refrain from passing upon it now, although we incline to the opinion that, in harmony with the established custom of making group rates for transcontinental traffic and in view of the long haul here involved, the rate from such local points to the junctions with the main line ought to be absorbed in the through rate.

An order will be entered in conformity with these conclusions.

13 I. C. C. Rep.

No. 1213.

WILLIAM MORTI

.v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Submitted March 23, 1908. Decided April 13, 1908.

Rate of 34 cents per 100 pounds exacted by defendant for the transportation of cattle from Leon, Kans., to Chicago, Ill., found unreasonable to the extent of 2 cents per 100 pounds, and reparation in the sum of $38.50 awarded to complainant. T. A. Kramer and George J. Benson for complainant.

William Ellis for defendant.

REPORT OF THE COMMISSION.

LANE, Commissioner:

The subject-matter of complaint in this case is the charge which was exacted by defendant for the transportation of seven carloads of cattle from Leon, Kans., to Chicago, Ill. The weight of the cattle was 154,000 pounds, the rate applied 34 cents per 100 pounds, and the total charge exacted for the transportation $523.60. Complainant claims this was excessive to the extent of 2 cents per 100 pounds, or $38.5C, and asks an award of reparation for the latter sum.

The jurisdiction of the Commission over the parties and subjectmatter of complaint is admitted, and other material allegations contained in the complaint are in substance that on November 14, 1906, complainant shipped 7 carloads of cattle over the lines of railway of defendant and its connection, the St. Louis & San Francisco Railroad Company, from Leon, Kans., to Chicago, Ill.; that said shipment passed over the line of the St. Louis & San Francisco Railroad Company from Leon to Kansas City, Mo., and over line of defendant from the latter point to Chicago; that complainant was induced by defendant's live-stock agent to route the shipment as above; that at the time of shipment there was in force from Leon to Chicago over the lines of railway of the St. Louis & San Francisco Railroad Company and the Chicago, Rock Island & Pacific Railway Company a rate of 31 cents per 100 pounds applicable to the transportation of cattle; that said agent assured complainant the rate of 31 cents would be protected by defendant if shipment was made, as above, over the St. Louis & San Francisco line and defendant's line, notwithstanding which defendant exacted for such transportation 34 cents per 100 pounds, which was made up of two local rates, namely, one