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These tables show that from southern points of production to Anthony the distances are, on an average, slightly less, and from eastern points somewhat greater than to Hutchinson, Wichita, Winfield, and Arkansas City.

Without going into an extended résumé of all the conditions involved in the handling of traffic from the east and south into the different towns named and the relative expense of transportation to points on branch lines as compared with main-line points, it is probably fair to assume that it is more expensive in many instances, though not always so, to handle traffic to branch-line than to mainline points.

The facts appearing seem to indicate that the differential of 6 cents per 100 pounds in carloads on rice and sugar against Anthony, as compared with Wichita, Hutchinson, and the other places mentioned, is not altogether just and probably should not exceed 3 cents, and that the rates on other commodities and perhaps the class rates should be adjusted on approximately the same relative basis.

This case is another one of several that have recently been presented to the Commission, involving the relation of rates to Kansas points from the east and south, owing to the new condition caused by the increased competition both via new and old lines from southern points of production as well as through the Gulf ports. One of the recent cases decided by the Commission is that of Johnston & Larimer Dry Goods Company v. Atchison, Topeka & Santa Fe Ry. Co. et al., 13 I. C. C. Rep., 388. In that case Wichita maintained that it should have the same rate on cotton piece goods from eastern points as Kansas City. We held in that case that Wichita was entitled to the benefit of its situation with reference to the Gulf ports. So, in this case, although Anthony is somewhat farther west than Wichita, its proximity to the Gulf is entitled to consideration in fixing the relation of rates as between the places here involved.

The Commission realizes that the complaint is not in such form as to warrant the making of a definite order against the defendants upon the basis of the adjustment outlined, and our suggestions are only made in the belief that the carriers will, in view of their attitude at the hearing, see proper to substantially conform thereto. Should they not do so, such further proceedings and hearing may be had as the ends of justice may seem to require.

The complaint will be dismissed without prejudice. 13 I. C. C. Rep.

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No. 1379.

LA SALLE & BUREAU COUNTY RAILROAD COMPANY

V.

CHICAGO & NORTHWESTERN RAILWAY COMPANY.

Submitted March 21, 1908. Decided June 2, 1908.

1. Under the circumstances of this case no order can properly be made requir

ing defendant to publish in its tariffs any allowance for transportation of freight by complainant from and to La Salle Junction, Ill., or to pay com

plainant allowances for specific service performed between certain dates. 2. When rates are filed and published, carriers must abide thereby. No allow

ances of any kind not specified in tariffs can lawfully be paid. 3. The power of the Commission to award reparation does not extend to the

division of rates between connecting carriers. Claims en contractu are not cognizable by the Commission. It can not, therefore, order the payment of money for services performed, nor for a debt due one carrier from another on account of joint rates for a joint service. Such claims rest upon contract, express or implied. The jurisdiction of the Commissio:i and its authority in this respect are limited to reparation for damages caused by violation of some provision of the act to regulate

commerce. 4. Complainant's application for leave to amend its complaint, so as to make it

cover establishment of through routes and joint rates from and to La Salle over its line to and from all points over defendant's line, is denied. The Commission does not favor a practice of ingrafting an application for through routes and joint rates onto a claim for reparation upon the basis of that here presented.

Peck, Miller & Starr for complainant.
S. A. Lynde for defendant.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

The complainant is a railroad company organized under the laws of Illinois, and owns and operates a railroad extending from La Salle, Ill., to La Salle Junction, Ill., on defendant's line, a distance of about 64 miles. It is alleged by complainant that its road was completed in 1894; that from that date until January 6, 1902, defendant allowed and paid complainant $3 for each loaded car delivered by it at La Salle Junction and the same amount for each loaded car received by it from defendant and handled from La Salle Junction to La Salle; that on January 6, 1902, an agreement was made between them that the allowance to complainant for the transportation of freight between the points named, carried or to be carried over defendant's line, should be 15 cents per ton; that payments were made on the agreed basis until November 1, 1906; that on this date defendant refused and ever since has refused to pay complainant any sum for transportation of certain interstate shipments over its line, and that up to March 1, 1908, there is due complainant from defendant for transportation of freight at the rate agreed upon the sum of $5,789.64. The prayer of the petition is that a finding be made that the rate of 15 cents per ton for transportation of freight over complainant's line is just and reasonable, and that an order be entered requiring defendant to pay such allowance and to pay

the sum due for the transportation of freight from November 1, 1906, to March 1, 1908, on that basis. The case is submitted by the parties on an agreed statement of facts.

It appears that the allegations of the complaint, as above set forth, are admitted by defendant as substantially correct; that complainant is a common carrier, and its road connects with the Illinois Central and the Chicago, Burlington & Quincy railroads at points on its line. It further appears that its road was constructed chiefly for the purpose of furnishing switching facilities for the Matthieson & Hegeler Zinc Company, the works of which are situated on a high bluff above the main portion of La Salle, and that the Chicago, Rock Island & Pacific and Illinois Central roads reach La Salle, but that the tracks thereof are below this plant and for practical purposes are inaccessible to it. Defendant's road does not reach La Salle, and its most

. direct connection is via the line of complainant.

The Chicago, Rock Island & Pacific Railway, in its amendment 21 to Freight Tariff I. C. C., C-7804, under the heading “ Absorption of Switching Charges-Exceptions,” publishes the following:

La Salle, 111.: On shipments to or from Matthieson & Hegeler Zinc Company, from or to competitive points, absorb switching charges not exceeding 15 cents per ton plus Illinois Central switching charge of $3 per car on traffic yielding net revenue of $10 per car or more to C. R. I. & P. Ry.

The Chicago, Burlington & Quincy Railroad Company publishes in its tariff I. C. C. 8018, under the heading “ Switching charges made by lines on which industries, etc., are located for service to or from junctions with other lines: "

Matthieson & Hegeler Zinc Company, 15 cents per ton, actual weight to or from Hegeler, Ill., where connection is inade with C. B. & Q. Ry.

No provision for an allowance to complainant is made in the tariffs published by the defendant on traffic delivered by it to complainant at La Salle Junction. Where a through rate to La Salle from points on its line is named, payment is made on the agreed basis, but not otherwise. About November 1, 1906, defendant informed complainant that payment to it of 15 cents per ton would not be made on any traffic on which complainant did not name a through rate to or from La Salle, and with respect to which no provision therefor is made in its tariffs.

It appears, therefore, that the purpose of filing the complaint herein is to secure an order from the Commission requiring defendant to publish in its tariffs an allowance to complainant similar to that published in the tariffs of other roads. The Commission is entirely without power to modify the published tariffs of carriers save in the manner prescribed in the act itself. When rates are filed and published, carriers must abide thereby, and no allowances of any kind not therein specified can lawfully be paid. The power of the Commission to award reparation does not extend to the division of rates between the connecting carriers. Claims ex contractu are not cognizable by the Commission. It can not, therefore, order the payment of money for services performed, nor for a debt due one carrier from another on account of joint rates for a joint service. Such claims rest upon contract, express or implied. The jurisdiction of the Commission and its authority in this respect are limited to reparation for damages caused by violation of some provision of the act to regulate commerce.

March 26, 1907, complainant filed and published a local switching tariff between lines with which it connects and points on its line, naming a uniform rate of 15 cents per ton. This was not concurred in by the defendant, and its only effect is to make it unlawful for complainant to transport interstate freight over its line except upon payment to it of the published rate. It certainly gives complainant no claim on the defendant for payment of allowances not provided for in the latter's tariffs.

It is clear that upoa this showing no order can properly be made in this case requiring defendant to publish in its tariffs any allowance for transportation of freight by complainant from and to La Salle Junction. It follows, of course, that no order can properly be made requiring defendant to pay complainant for such transportation of freight from November 1, 1906, to March 1, 1908.

Complainant, at the hearing, when the agreed statement of facts was submitted, asked leave to amend its petition, seeking in effect, though somewhat indefinitely, the establishment by the Commission of through routes and joint rates from and to La Salle over its line

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to and from all points on the defendant's line. The original complaint had reference to allowances both for the future and in the past to complainant for transportation of freight over its line, specifically asking payment for such transportation from November 1, 1906, to March 1, 1908. The amendment presents an entirely different question, i. e., the establishment of through routes and joint rates, involving, of course, divisions thereof. The agreed facts do not constitute a proper or sufficient basis for intelligent and fair action with respect to that question. We do not favor a practice of ingrafting an application for through routes and joint rates onto a claim for reparation upon the basis here presented and which, upon the agreed facts, must in any event be denied.

Since the case was submitted, and under date of April 28, 1908, the defendant, by its general attorney, has filed a statement in which it concedes that the sum of $3,526.27 is due complainant for services in transporting traffic to and from La Salle Junction, as above described, between the dates named, and expressing its willingness to pay that amount upon order of the Commission. It is also stated that it has no objection to an order requiring joint rates with complainant, and an allowance to the latter of 15 cents per ton as its share of the joint rates, and that action has been taken looking to the establishment of joint rates as prayed for by complainant.

So far as putting into effect tariffs establishing the joint rates referred to is concerned, that is a matter with which the Commission has nothing to do in the first instance. This case, as presented, does not involve the establishment of through routes and joint rates, and no finding with respect thereto can properly be made herein.

With respect to the payment of the amount now conceded to be due complainant from defendant the consent of the parties can not operate to confer jurisdiction on the Commission to make an order for such payment. The liability of defendant, if any, does not arise, so far as here appears, from any infraction of the provisions of the act to regulate commerce, and therefore the Commission is without jurisdiction in the premises. Nor does the record disclose the relation of the shippers or owners of the freight in question to the La Salle & Bureau County Railroad Company sufficiently to afford proper basis for a conclusion as to the propriety of the allowances which have been the subject of negotiation between the parties.

The application to amend the petition will be denied and complaint dismissed.

13 I. C. C. Rep.

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