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We do not therefore sustain the claim of the complainants that the rate on west-bound lumber should be no higher than that east bound; but we are of the opinion that the present rate west bound of 85 cents from Chicago and Chicago points and from Mississippi River points, including Memphis, is excessive and should not exceed 75 cents per 100 pounds. This allows the defendants a rate one-third higher upon the western movement than we have established upon the east bound.

One reason advanced by the defendants in support of the reasonableness of the 85-cent rate is the fact that this rate applies as a blanket rate all the way to the Atlantic seaboard. The lumber handled by the complainants is mainly shipped from Wisconsin points and from Memphis and similar points. In considering the reasonableness of this rate we have treated Chicago and Memphis as typical points of origin. The considerations which lead to the conclusion that a rate of 75 cents is sufficient from these points would not induce a similar conclusion as to more distant points. This rate will therefore be made applicable from Chicago and Chicago points and from Mississippi River points which include Memphis. If the defendants desire, they may apply a higher rate from territory farther east; we can not upon the record intelligently indicate how much higher.

It may be noted that this permits in reality a considerable advance in the total charges of the defendants for handling this hardwood lumber. The original 75-cent rate applied from territory east of Memphis, in which this oak largely originates, and the record shows that the average division of carriers west of Memphis did not exceed 66 cents.

The complainants claim reparation by reason of shipments made under the 85-cent rate. The defendants deny that the complainants should be awarded such reparation, even though the Commission be of the opinion that that rate is and has been excessive, for the reason that no damage upon the part of the complainants has been established.

This case shows that hardwood lumber has moved to the Pacific coast in larger quantities since the rate was advanced in 1904 than it did previously. The use of hardwood upon the Pacific coast has very much increased. Importations from foreign countries have been greater and shipments from the east have also grown. The amount of lumber sent west from these points of origin is insignificant in comparison with the total amount handled, and the price is but little influenced by the market upon the Pacific coast. The dealer in Wisconsin or at Memphis has charged substantially the same price whether his sales were in the east or for export or for shipment 'co California, and this means, of course, that the advance in the fight 13 I. C. C. Rep.

rate has been added to the price paid by the consumer. The defendants say that it follows that the complainants who have paid this freight rate have not actually been injured.

It appeared that one witness suspended operations upon the Pacific coast owing to the advance in the rate, and other witnesses were of the opinion that more lumber would have been sold under the 75-cent rate. It is impossible to say, therefore, to what extent these complainants may have been actually damaged by the advance in this rate, if the word damage is to be interpreted and applied as claimed by the defendants.

Such is not, in our opinion, the proper meaning of this term. These complainants were shippers of hardwood lumber to this destination and they were entitled to a reasonable rate from the defendants for the service of transportation. An unreasonable rate was in fact exacted. They were thereby deprived of a legal right and the measure of their damage is the difference between the rate to which they were entitled and the rate which they were compelled to pay. If complainants were obliged to follow every transaction to its ultimate result and to trace out the exact commercial effect of the freight rate paid, it would never be possible to show damages with sufficient accuracy to justify giving them. Certainly these defendants are not entitled to this money which they have taken from the complainants, and they ought not to be heard to say that they should not be required to refund this amount because the complainants themselves may have obtained some portion of this sum from the consumer of the commodity transported.

Neither should these complainants be permitted to slumber upon their rights and to accumulate against these defendants a claim for damages which may not represent in its entirety an actual loss to the complainants. The burden of an unjust freight rate usually rests upon the consumer, who can not and does not recover.

Claims for reparation should therefore be promptly presented and actively prosecuted. We shall allow the complainants reparation in this case in the amount of the difference between the rate actually paid and the rate of 75 cents, which is established and which is found to have been a reasonable rate from the date of the filing of this petition, but following the case of Thompson v. Illinois Central R. R. Co., supra, no reparation will be allowed by reason of shipments made previous to the date of the filing of the complaint.

If the parties can not agree upon the amounts, further testimony will be taken.

An order will now issue establishing the rate found to be reasonable, and the case will be retained for further proceedings in the matter of reparation.

CASES DISPOSED OF BY THE COMMISSION WITHOUT REPORT

DURING THE TIME COVERED BY THIS VOLUME.

998. FREDONIA LINSEED OIL WORKS V. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.-Rates on linseed oil cake from Fredonia, Kans., to San Francisco and other Pacific coast points. F. E. Lyster for complainant. Gardiner Lathrop and Robert Dunlap for defendant. February 3, 1908. Dismissed for want of prosecution.

1080. E. I. DUPONT DE NEMOURS POWDER COMPANY v. CHICAGO & NORTHWESTERN RAILWAY COMPANY.—Rates on imported brimstone, Philadelphia to Platteville, Wis. Wm. Coyne, J. B. D. Edge, and J. P. Laffey for complainant. S. A. Lynde for defendant. April 6, 1908. Dismissed on motion of complainant.

1159. FARMERS' BUSINESS ASSOCIATION v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY.—Insufficient number of cars and other inadequate facilities at Holbrook, Nebr. E. C. Clark for complainant. C. M. Dawes and Hale Holden for defendant. May 5, 1908. Dismissed on motion of complainant.

1164. MOISE BROTHERS COMPANY v. CHICAGO, Rock ISLAND & EL Paso RAILWAY COMPANY ET AL.-Rates on coal, Pictou and other points in Colorado to Santa Rosa, N. Mex. J.J. Moise for complainant. E. E. Whitted, E. B. Peirce, C. L. Wellington, and Spoonts, Thompson & Barwise for defendants. March 2, 1908. Complaint satisfied, case discontinued.

1189. J. H. WERBELOVSKY v. BUFFALO, ROCHESTER & PITTSBURG RAILWAY COMPANY ET AL.-Local rates on window glass from Bradford, Pa., to Bushwick, L. I., instead of through rate. J. H. Werbelovsky for complainant. Ralph Peters, Charles Ileebner, J. E. Reynolds, J. F. Keany, and Harris, Havens, Beach & Harris for defendants. January 14, 1908. Dismissed for want of prosecution.

1196. CHARLES A. SIBLEY v. UNION PACIFIC RAILROAD ComPANY.--Discrimination against interstate passengers by exacting 3 cents per mile for interstate transportation and but 2 cents per mile for intrastate. J.G. Beeler for complainant. J. N. Baldwin for defendant. March 10, 1908. Dismissed on request of complainant.

1254. FLORALA Saw Mill COMPANY V. CENTRAL OF GEORGIA RAILWAY COMPANY ET AL.--Rates on yellow pine lumber from Southwestern Freight Association and Mississippi Valley territories to points in New York and New England. E. A. Swingle, H. K. White, and G. T. Dunlop for complainant. R. B. Cooke, John G Wilson, G. S. Patterson, G. V. Massey, Ed. Baxter, C. B. Northrop, R. Walton Moore, and W. A. Parker for defendants. April 6, 1908. Dismissed on motion of complainant.

1270. MERRIAM & HOLMQUIST COMPANY V. CHICAGO & NORTHWESTERN RAILWAY COMPANY.-Discrimination in elevator charges at Omaha. B.G.Burbank and J.C. Wharton for complainant. S. A. Lynde for defendant. January 13, 1908. Dismissed on motion of complainant.

1271. MERRIAM & HOLMQUIST COMPANY V. ILLINOIS CENTRAL RAILROAD COMPANY.-Discrimination in elevator charges. B. G. Burbank and J. C. Wharton for complainant. J. M. Dickinson, F. B. Bowes, and Blewett Lee for defendant. January 13, 1908. Dismissed on motion of complainant.

1272. MERRIAM & HOLMQUIST COMPANY v. CHICAGO GREAT WESTERN RAILWAY COMPANY.—Discrimination in elevator charges. B. G. Burbank and J.C. Wharton for complainant. A. G. Briggs and J.C. Erdall for defendant. January 13, 1908. Dismissed on motion of complainant.

1273. MERRIAM & HOLMQUIST COMPANY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.-Discrimination in elevator charges. B. G. Burbank and J. C. Wharton for complainant. Wm. Ellis for defendant. January 13, 1908. Dismissed on motion of complainant.

1299. ALLOUEZ MINERAL SPRING COMPANY V. GREEN BAY & WESTERN RAILROAD COMPANY ET AL.-Rates on natural mineral waters from Green Bay, Wis., to Goldfield, Nev. J. P. Hoeffel for complainant. W. C. Modisett, J. N. Baldwin, Wm. F. Herrin, P. F. Dunne, S. A. Lynde, and F. C. Dillard for defendants. March 9, 1908. Dismissed on motion of complainant.

1311. FORT SMITH TRAFFIC BUREAU V. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY ET AL.-Rates on preserves and pickles from Fort Smith to Texas as compared with rates from Kansas City. C. H. Ivers for complainant. J. A. Kibler, T. J. Freeman, E. B. Peirce, F. C. Dillard, T. S. Busbee, Spoonts, Thompson & Barwise, and Baker, Botts, Parker & Garwood for defendants. April 14, 1908. Dismissed on motion of complainant.

1318. NEW ORLEANS BOARD OF TRADE, LTD. v. St. Louis SOUTHWESTERN RAILWAY COMPANY ET AL.-Advances in rates on rough rice to New Orleans. John A. Smith for complainant. H. E. Farrell for defendant. December 2, 1907. Dismissed on motion of complainant.

1320. SUNDERLAND BROTHERS COMPANY ET AL. v. CHICAGO, Rock ISLAND & PACIFIC RAILWAY COMPANY ET AL.--Change in recon

signment rules and charges on coal, lumber, shingles, lime, and cement in territory tributary to Omaha and Lincoln. Francis A. Brogan for complainants. J. M. Dickinson, Blewett Lee, John N. Baldwin, F. C. Dillard, R. A. Brown, S. E. Stohr, Thomas Wilson, E. B. Peirce, Hale Holden, R. W. Moore, and S. A. Lynde for defendants. June 9, 1908. Dismissed on motion of complainant; complaint satisfied.

1336. E. H. LEWIS LUMBER COMPANY V. UNION PACIFIC RAILROAD COMPANY ET AL.–Violation of sections 1, 2, and 3 in rates on lumber from West Scio and Mount Angel, Oreg., to Toledo, Ohio, and other points. Austin E. Griffiths for complainant. F. C. Dillard, S. A. Lynde, Henry Russel, Hale Holden, A. P. Burgwin, J. B. Kerr, A.G. Briggs, G. F. Brownell, P. F. Dunne, J. N. Baldwin, Wm. F. Herrin, 0. E. Butterfield, W. W. Cotton, P. L. Williams, R. A. Brown, H. A. Taylor, and Glennon, Cary, Walker & Howe for defendants. February 4, 1908. Dismissed on motion of complainant.

1346. ARTHUR S. CORE v. ERIE RAILROAD COMPANY.–Violation of section 1 in rates on potatoes from Kingsley, Mich., to New York City. Arthur S. Core for complainant. George F. Brownell for defendant. March 16, 1908. Dismissed on motion of complainant.

1352. DETMER WOOLEN COMPANY V. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY ET AL.-Rates on tailors' samples of woolen dry goods for advertising, New York to San Francisco. Samuel Hoffman for complainant. Robert Dunlap, T. J. Norton, Douglas Swift, Thos. H. Gill, W. S. Jenney, and J. H. Clarke for defendants. April 6, 1908. Dismissed on motion of complainant.

1353. DETMER WOOLEN COMPANY v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY ET AL.-Rates on tailors' samples of woolen goods for advertising purposes, New York to Kansas City. Samuel Hoffman for complainant. W. S. Jenney, Douglas Swift, and W. H. Blodgett for defendants. April 6, 1908. Dismissed on motion of complainant.

1354. DETMER WOOLEN COMPANY v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY ET AL.-Rates on tailors' samples of woolen goods for advertising purposes, New York to Chicago. Samuel Hoffman for complainant. Douglas Swift and W. S. Jenney for defendants. April 6, 1908. Dismissed on motion of complainant.

1355. DETMER WOOLEN COMPANY v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY ET AL.-Rates on tailors' samples of woolen goods for advertising purposes, New York to Seattle, Wash. Samuel Hoffman for complainant. Douglas Swift, W. S. Jenney, Thos. H. Gill, and W. R. Begg for defendants. April 6, 1908. Dismissed on motion of complainant.

1358. PARLIN & ORENDORFF MACHINERY COMPANY v. CLEVELAND, CINCINNATI, CHICAGO & St. Louis RailwAY COMPANY.

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