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from Leon to Kansas City, another from Kansas City to Chicago It is further alleged in the complaint that the weight of the cattle was, as above stated, 154,000 pounds; that said rate of 34 cents was excessive to the extent of 2 cents, and that complainant was therefore overcharged to the extent of $38.50.

In its original answer to the complaint defendant denied that any representative of its company ever "lawfully” quoted a rate of 314 cents from Leon to Chicago, previous to January 9, 1907, but averred that previous to said January 9 the lawfully published tariff from Leon to Chicago was 34 cents, or the combination of locals as above via Kansas City.

Subsequently, however, defendant filed an amended answer, the first and second paragraphs of which read as follows:

Now comes the Chicago, Milwaukee & St. Paul Railway Company, by W iam Ellis, its attorney, and for its amended answer to the petition of the complainant in the above-entitled cause admits the facts therein alleged concerning the movement of the shipment therein set forth, and while averring that in the absence of modifying circumstances and conditions the rates provided for the transportation of cattle between Leon, Kans., and Chicago, Ill., are just and reasonable rates, it admits that on account of the existence of competitive conditions that the application of the rate of 34 cents as set forth in said complaint was in fact unreasonable and excessive, but this defendant avers that the rate of 34 cents per 100 pounds was the only rate which, at the time said shipment moved, this defendant could have lawfully charged or collected for the transportation of said freight.

That thereafter and effective January 9, 1907, we concurred in the St. Louis & San Francisco Railroad Company Tariff I. C. C. No. 3273, which is our G. F. D. No. 3428-A, which names a through rate of 314 cents on cattle from Leon, Kans., to Chicago, Ill.

When the amended answer was sent to the office of the Commission, for filing, it was accompanied by a stipulation signed by counsel of the parties, both complainant and defendant. The body of the stipulation reads as follows:

It is agreed by the parties hereto that the above-entitled case may be determined upon the pleadings and without hearing, the filing of briefs and presentation of argument being hereby waived by each of the parties.

At the time said shipment moved there was in effect, from Leon to Chicago, over the lines of the St. Louis & San Francisco Railroad Company and the Chicago, Rock Island & Pacific Railway Company, a rate on cattle of 314 cents per 100 pounds. The distance from Leon to Kansas City over the St. Louis & San Francisco line is about 265 miles, and over defendant's line from the latter point to Chicago approximately 500 miles, making a total of 765 miles. A rate of 31} cents would therefore afford a rate per ton per mile of about 87 mills.

Previous to the passage of the Hepburn Act it was the practice of carriers to insert in the schedules of rates and charges published by them notices to the effect that if rates named as applicable between certain points were greater than the rates contemporaneously applied between the same points over other routes the lower rates would be protected regardless of such publication, and in some instances carriers protected such lower rates even where their schedules did not contain notices to that effect. However, after the passage of that act and the promulgation by this Commission of rules requiring carriers to include in their schedules all matters affecting rates of transportation and to so arrange their schedules that not more than one rate would be applicable at any time to the transportation of a particular class of traffic between certain points, the practices above referred to were discontinued.

Although rates of transportation can not be varied by wrong quotations made by railway officials, upon consideration of all the circumstances disclosed by the record, including the admission of the defendant above referred to, we are of the opinion, and find, that the rate of 34 cents per 100 pounds exacted by defendant was unreasonable to the extent it exceeded 314 cents, and that complainant is entitled to reparation in the sum of $38.50, this being 2} cents per 100 pounds on 154,000 pounds, the weight of the shipment in question.

On January 9, 1907, defendant in connection with the St. Louis & San Francisco Railroad Company established and put in force from Leon to Chicago, and those carriers have since maintained in force over their lines of railway between said points, a rate on cattle of 314 cents per 100 pounds. The complaint in this case was filed on August 22, 1907. Where a reduction in a rate like that above referred to is made before complaint is filed, or after filing of complaint and answer, but before hearing, it is the practice of the Commission to issue an order requiring that the lower rate be the maximum charge applied during a definite period of time, usually two years from the date the rate is made effective. In this case, however, no such order will be made, since the rate of 31} cents is a joint rate and one of the parties thereto, the St. Louis & San Francisco Railroad Company, is not a party to the record.

The charge for transportation found unreasonable is the through rate from Leon to Chicago of 34 cents per 100 pounds. It will be seen that the transportation was over the line of the St. Louis & San Francisco Railroad Company from Leon to Kansas City, but the entire charge for the transportation from Leon to Chicago was exacted and collected from complainant by defendant at Chicago. We therefore consider it proper to require the defendant to pay to complainant the full amount of the reparation awarded, but this will not prevent the defendant and the St. Louis & San Francisco Railroad Company from making such arrangements between themselves as they may wish to concerning payment of said reparation.

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

No. 1068.

PATRICK BANNON

V.

SOUTHERN EXPRESS COMPANY.

Submitted April 9, 1908. Decided May 4, 1903.

Defendant's regulations as to contents of packages shipped under estimated weights

have, in the past, been disregarded by complainant and laxly enforced by defendant, resulting in charges less than provided in tariff for actual weight shipped. Upon correction of those irregularities complaint was made that rate was unreasonable and reparation was demanded; Held, That the rate is not unreasonable and that where a shipper has in effect received a reduced rate on account of his own and carrier's irregularities, correction of those irregularities can not be made the basis for an award of reparation. Complaint dismissed. Patrick Bannon for complainant in person. R. C. Alston and W. E. Kay for defendant.

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REPORT OF THE COMMISSION.

CLARK, Commissioner:

The complaint in this proceeding alleges that the defendant's rate on fish in sugar barrels, flour barrels, and tubs from Haines City, Fla., to St. Louis, Mo., is unjust and unreasonable in that about September 20, 1906, it was raised to 3 cents per pound, when for the ten years previous thereto the rate had been $6 per sugar barrel, $4.50 per flour barrel, and $3.50 per tub. Reparation is asked in the sum of $46.19 on account of alleged increase.

It is charged that giving shippers of ten or more packages of fish a less rate than shippers of single packages is an unjust discrimination to the latter, and that deduction of only 25 per cent from the weight of packages as an allowance for ice operates unjustly, as considerably more ice is used. In its answer defendant states that fresh fish are shipped from Florida points in barrels, the rate for which is computed on a basis of $3 per 100 pounds, which is low considering that fish are carried on fast passenger trains. The rate on fresh fish between points involved in the complaint by ordinary freight train is $2 per

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100 pounds, and defendant's contracts with the rail carriers provide that its charges must be at least 50 per cent higher than the railcarriers' rates on the same commodity. It is also stated that there has been no change in the rate on fish from Haines City, Fla., to St. Louis, Mo., since November 15, 1900. There are three routes via which shipments are made. The distance is approximately 1,200 miles.

Reference is made in the answer to the fact that the subject of complaint had been before the Commission in an informal way and the statement contained in the correspondence was reiterated to the effect that the burden of the complaint as understood by the defendant is that complainant has been in the habit of putting more than 200 pounds of fish in a sugar barrel and agents of the defendant did not detect it, or, if they did detect it, did not put a stop to it.

Attached to the answer is tariff of Southern Express Company issued November 15, 1900, rate sheet No. 563, marked effective on receipt from Haines City, Fla., to various points in states named. This tariff provides rate to St. Louis, as follows: Per sugar barrel....

$6.00 Per flour barrel..

4.75 Per 100 pounds..

3.75 Ten-barrel lots, oue shipper, one consignee....

5.75 The tariff contains provisions that: These rates contemplate the transportation of 200 pounds of fish per sugar barrel, and 150 pounds net fish per flour barrel.

All shippers must be notified that the rates quoted will not apply on shipments containing in excess of the above named net weights of fish.

Apply the rate per 100 pounds on fish in half barrels and boxes, and when ice is used for preservation add 25 per cent to net weight, unless actual gross weight is less at time of shipment.

Hearing was had at Jacksonville, Fla., February 12, 1908.

Haines City is located on the Atlantic Coast Line Railroad in Polk County, Fla. It is 187 miles south of Jacksonville, from which point

, the rate to St. Louis per standard sugar barrel is $5. The complainant is an orange grower having a grove of 25 acres.

He owns a private lake in which he captures the fish he markets. The services of his family are employed in catching the fish; they are hauled to the station by his own team, which is also used in hauling ice.

The fish season is usually from September 25 to April 15. Complainant kept no record of the number of barrels shipped per year, but it is stated to have been between 50 and 60. The shipments according to the complainant were not weighed and it appears that it would be impossible for the agent of the express company to find out how many pounds of fish were contained in a barrel except by unpacking the barrel, separating the fish from the ice, and weighing them.

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Complainant testified that before the Hepburn law was enacted he shipped on an average of 275 pounds net of fish in a sugar barrel and then filled the barrel with ice, making the gross weight from 375 to 400 pounds per barrel, the amount of ice depending upon the weather; that approximately the same condition existed as to flour barrels and tubs and that a flat rate of $6, $4.50, and $3.75 for sugar barrel, flour barrel, and tub, respectively, was charged no matter how many pounds of fish were contained in the receptacle; that he did not know of anyone or any point getting a better rate than was given to him, and that the 10-barrel rate was open to everybody.

Shippers' statement of net weight was usually taken. The amount of ice used depended upon the locality; in some localities ice was more expensive than in others and, therefore, some shippers filled the barrel to capacity while others did not. The defendant has never limited the amount of ice. The average weight of a barrel containing 200 pounds of fish would be from 312 to 325 pounds. The route agent of the defendant testified that he had called upon the complainant and informed him that the defendant objected to his shipping more than 200 pounds of fish in a barrel; that the rate was $6 a barrel; and such notice was given complainant three times. In 1907 said agent went to Haines City with the express purpose of notifying complainant that he must discontinue the practice of putting too much fish in his barrels, otherwise the matter would be reported to the Commission. On January 10, 1902, and at various times thereafter, circulars were issued advising that sugar barrels should contain no more than 200 pounds net fish waybilled at 250 pounds, and flour barrels 150 pounds net fish waybilled at 187 pounds.

Complainant testified that the rate on fish of 3 cents per pound shipped in sugar barrels and 1} cents on all in excess of 200 pounds was based on the billing of the agent and letter from the general superintendent; that there had been three changes since the express companies were brought under the law; the first a rate of 3 cents, flat; the next when the route agent came to see him, after which the practice of weighing fish was commenced, and later the allowing of 50 pounds for the barrel and ice. The published tariff of defendant does not show a rate of 14 cents per pound for all in excess of 200 pounds.

Bills of lading and expense bills of shipments of fish from Haines City since November 15, 1906, at rate of 3 cents on 200 pounds and 1} cents on all in excess thereof were requested at the hearing, but were not furnished, by complainant. He states that he was unable to furnish the originals and that when he called for copies the agent at Haines City informed him that the records were in possession of the superintendent at Savannah. The defendant stated that copies of the billing of all shipments from Haines City to St. Louis since

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