plants being in operation on the Pacific coast and the trans-continental lines needing revenue, the latter could make something out of this traffic at the lower rate; that as Denver was not competing in this article with Missouri River common points territory, the carriers might meet this competition at the Missouri River without regard to intermediate rates to Denver; that the circumstances and conditions under which the traffic moved were substantially different when it was carried to Missouri River points than when it stopped at Denver. In referring to the Lehmann case, supra, the fact that Kansas City could not compete in the Humboldt territory even though it enjoyed a lower rate was especially noticed.

A further consideration of the Kindel case, supra, was had in 9 I. C. C. Rep., 606, which determined the specific commodities that should bear no higher rate from San Francisco to Denver than to Missouri River common points, and the general view adopted in the first consideration thereof was adhered to; however several other articles, among them hemp, were decided to be within the same rule that governed the rates on sugar, and the principle was clearly recognized that competition between points of production, of products, between carriers and in rates, are matters that constitute such dissimilarity in conditions as will prevent the lower rate to the more distant point from violating the fourth section of the act. To the same effect see Dallas Freight Bureau v. Austin & Northwestern Railroad Co., 9 I. C. C. Rep., 71.

It may be observed in this connection that dissimilar circumstances which justify a greater charge for a shorter than for a longer haul under section 4 will also prevent such rate from constituting an illegal preference or advantage under section 3.

It is suggested in argument that the price of eastern rope is lower than western rope. This is undoubtedly true, but the Commission has nothing to do with the prices paid for this commodity by dealers in or consumers of it. If the eastern manufacturer can sell his product lower than the western manufacturer at the point of production, it is his good fortune and the Commission should not be expected to equalize that difference by a further reduction in the transportation rate on the Western product to the point of consumption which is already lower than the eastern rate.

The system of group rating is attacked by complainant, but it has uniformly been held by this Commission that a group rate of the nature complained of will not be disturbed or be held to constitute an undue preference, unreasonable prejudice or unjust discrimination without proof of tangible injury resulting to the complainant.

As before observed, it is clear that in this case this group rating has not operated to the disadvantage of the complainant.

The shipments of rope made by complaint over the line of the Atchison, Topeka & Santa Fe and the Missouri Pacific railways, for which the Missouri Pacific Railway collected from the complainant 60 cents per 100 pounds on November 11 and December 11, 1906, as shown by Complainant's Exhibits Nos. 1 and 2, were clearly moved at an unlawful rate, but as the testimony shows that the shipments were carried and the rate collected and paid with all parties acting in good faith, the defendant, the Missouri Pacific Railway Company, should forthwith demand and the complainant forthwith pay the 15 cents per 100 pounds undercharges on these two shipments.

The complaint herein should be dismissed.

13 I. C. C. Rep.

No. 954.

MUSKOGEE COMMERCIAL CLUB AND MUSKOGEE TRAFFIC BUREAU

v.

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.

Submitted November 1, 1907. Decided December 10, 1907.

Complainants' motion for rehearing in this proceeding denied.

L. J. Roach and C. M. Bradley for complainants.
C. L. Jackson for defendant.

REPORT ON MOTION FOR REHEARING.

LANE, Commissioner:

In this matter a petition has been presented asking that a further order be made by the Commission by which certain advantages alleged to accrue to the Lesser-Goldman Company by reason of their controlling ownership of the compress at McAlester should be overcome. The Commission has determined, in view of the largeness of the questions involved and of the number of compresses, communities, and carriers which would be affected by such an order, to hold a general inquiry into the question of compression, in which the relation between the railroads, compresses, and buyers and shippers will be investigated, looking also to the interest of the grower, in which it is hoped an order may be made dealing with the whole question. The facts in the present case are insufficient to justify the Commission in making a broad ruling herein which would deal adequately with the entire situation. The present order will, therefore, stand subject to revision or modification upon a later hearing upon the general question. An order will be entered denying the motion.

13 I. C. C. Rep.

KNAPP, Chairman:

REPORT OF THE COMMISSION.

The complaint in this proceeding alleges that the method of car distribution, known as the "coke-oven basis," adopted and enforced by the defendant railway company in the Pocahontas Flat Top coal district in West Virginia, unduly and unjustly discriminates against complainant to the undue preference and advantage of other mine operators in said district: First, because the basis is itself essentially inequitable in that it places an arbitrary limit upon the amount of coal complainant may ship; and, second, because the "coke-oven basis" is, in fact, disregarded in the apportionment of the available car supply to certain operations in said district.

In the complaint the manner in which cars loaded with fuel coal for the use of defendant and other carriers are charged in the apportionment of cars to the coal field was also declared to be unjustly discriminatory; but as complainant is contending for the adoption of the so-called "capacity basis" of car distribution, and as the method of counting cars loaded with coal for carriers' use presents a question common to both the "capacity basis" and "coke-oven basis," that feature of the case was, by mutual consent of the parties, eliminated from the issue and need not be considered in this report. The material facts are as follows:

The complainant is a corporation, with a capitalization of $150,000, organized under the laws of West Virginia, engaged at the time of filing this petition and since 1889 in the business of mining, selling, and shipping coal from the Pocahontas Flat Top coal district to markets outside of the State of West Virginia. The defendant railway company is a common carrier subject to the act to regulate commerce. The other defendants are corporations or individuals operating mines in and shipping coal from the said Pocahontas Flat Top coal district. The Pocahontas Flat Top coal district, hereinafter called the Pocahontas district, is situated in the counties of McDowell and Mercer, W. Va., and the county of Tazewell, Va., and as now developed embraces a territory about 25 miles long and 5 miles or more wide. During 1906 the total production of coal in this district was over 6,000,000 tons, of which complainant mined and shipped about 121,000 tons. The defendant railway company is the only carrier by rail which enters the Pocahontas district. Mining conditions are substantially the same throughout the entire district, except for certain advantages possessed by the operators of thick beds of coal, as compared to thin beds, which will be mentioned hereafter.

The theory of the "coke-oven basis" of distribution is that the available supply of coal cars shall be distributed to mine operators

13 I. C. C. Rep.

COMPANY; UPLAND COAL & COKE COMPANY; HIAWATHA COAL & COKE COMPANY; PAWAMA COAL & COKE COMPANY; PIEDMONT COAL & COKE COMPANY; SMOKELESS COAL & COKE COMPANY; SPRING COAL & COKE COMPANY; WALBRIDGE LEASE NO. 9; WENONAH COAL & COKE COMPANY; WEYANOKE COAL & COKE COMPANY, AND ZENITH COAL & COKE COMPANY.

Submitted November 26, 1907. Decided January 14, 1908.

1. Complaint alleges that the method of car distribution known as the "cokeoven basis," enforced by defendant railway company in the Pocahontas Flat Top coal district in West Virginia, unduly discriminates against complainant, and asks that the so-called "capacity basis" of car distribution be adopted; Held, upon all the facts and circumstances in the case, that the coke-oven basis does not fairly measure the relative rights of the various operators in said coal district, but unduly discriminates against complainant and operates to the unreasonable preference of other mining companies in the same field.

2. While the mine capacity of a given shipper may be greater than his allotment of cars, yet where this is also the case as to other shippers similarly situated in the same coal field, it is the duty of the carrier, when the supply of cars is inadequate, to fairly distribute the available number among all operators.

Z. T. Vinson and Geo. S. Graham for complainant.

Joseph I. Doran and John H. Holt for Norfolk & Western Railway Company.

W. L. Penfield and W. S. Penfield for Indian Ridge Coal & Coke Company.

William A. Glasgow, jr., for Booth-Bowen Coal & Coke Company, Crane Creek Coal & Coke Company, Shawnee Coal & Coke Company, Crystal Coal & Coke Company, Keystone Coal & Coke Company, Weyanoke Coal & Coke Company, Thomas Coal & Coke Company, Pocahontas Collieries Company, Pawama Coal & Coke Company, Arlington Coal & Coke Company, Gilliam Coal & Coke Company, Pocahontas Consolidated Coal & Coke Company, Elk Ridge Coal & Coke Company, Tidewater Coal & Coke Company, Bottom Creek Coal & Coke Company, Buckeye Coal & Coke Company, Roanoke Coal & Coke Company, Ashland Coal & Coke Company, Pinnacle Coal & Coke Company, Pulaski Coal & Coke Company, Algoma Coal & Coke Company, Spring Coal & Coke Company, Piedmont Coal & Coke Company, Greenbrier Coal & Coke Company, Louisville Coal & Coke Company.