In its petition complainant asked for reparation, but no evidence was offered as to the amount or extent of the damages suffered, and it is to be inferred that this demand has been virtually abandoned.

Upon argument, the authority of the Commission to prescribe the method of car distribution to be substituted for the coke-oven basis was challenged. We deem it unnecessary to express an opinion upon that point for two reasons: In the first place, the record is not sufficiently complete to warrant an attempt to prescribe, except possibly in the most general way, the system or method which should hereafter be followed in the distribution of cars to the various mines in the Pocahontas district. Secondly, the discontinuance of the cokeoven basis, which will be required by an appropriate order, will involve the adoption of a system which does not result in unlawful discrimination, and we think the defendant railway company should take the responsibility, at least in the first instance, of determining and applying the substituted basis.

In dealing with this question of car distribution the Commission, in its report of certain investigations under the joint resolution of Congress of March 7, 1906, commonly referred to as the coal and oil investigation, made the following, among other, recommendations:

That every common carrier engaged in interstate transportation of coal be required to make public the system of car distribution in effect upon its railway and the several divisions thereof, showing how the equipment for coal service is divided between the several divisions of its road and how the same in times when the supply of equipment does not equal the demand is divided among the several mining operations along such road; and that the carrier further be required to publish at stated periods and at each divisional headquarters upon its line of road the system of car distribution in effect and the actual distribution made to each mining operation under such system.

That where the capacity of the mines is the basis for the distribution of equipment, a fair, just, and equitable rating of the mines be required, and that provision be made for the representation of owners of the mines at the rating thereof.

These recommendations are here quoted not as definite directions to be followed by the defendant railway company, but rather as indicating the principles which, in our judgment, should be observed in order to provide a fair and equitable distribution of cars when the available equipment is insufficient to meet all demands. It is assumed that some form of capacity basis suited to the conditions and peculiarities of the district in question will be devised and put into effect. An order will be entered in accordance with the views thus expressed. 13 I. C. C. Rep.

No. 792.

PITTSBURG PLATE GLASS COMPANY

v.

PITTSBURG, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY; CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY; NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY; NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY; DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY; BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY; LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY; PHILADELPHIA & READING RAILWAY COMPANY; NORFOLK & WESTERN RAILWAY COMPANY; CHESAPEAKE & OHIO RAILWAY COMPANY; BALTIMORE & OHIO RAILROAD COMPANY; PENNSYLVANIA RAILROAD COMPANY; BOSTON & MAINE RAILROAD; LEHIGH VALLEY RAILROAD COMPANY; MICHIGAN CENTRAL RAILROAD COMPANY; PENNSYLVANIA COMPANY, AND ERIE RAILROAD COMPANY.

No. 815.
SAME

v.

ILLINOIS CENTRAL RAILROAD COMPANY.

Submitted May 9, 1907. Decided January 13, 1908.

1. Unjust discrimination in rates against domestic shipments of plate glass in favor of import shipments was alleged, on the ground that rates on the former are relatively higher than the inland rail proportion of the total charge from the point of origin in a foreign country.

2. Under the law, as interpreted by the Supreme Court of the United States in Texas & Pacific Railway Company v. Interstate Commerce Commission, 162 U. S., 197, the Commission can not consider such disparity in rates alone as constituting unjust discrimination.

13 I. C. C. Rep.

3. In considering the question of alleged unjust discrimination in favor of shippers of import plate glass moving from the ports of entry in this and adjacent fereign countries to interior American destinations, and against domestic shipments between points in the United States, it is the duty of the Commission to look to the circumstances and conditions affecting the matters involved, not only in this country, but in the entire field of commerce, here and abroad. It is well settled by the highest judicial authority that the existence and effectiveness of competition between carriers, whether by rail or water, whether subject to the Federal act of regulation or not, and competition of markets, or the absence of such competition, are, among other things, pertinent to the question of similarity of circumstances and conditions, and as to whether the discrimination complained of and shown is or is not undue or unreasonable. 4. To make the total through charge from a foreign point of origin the absolute measure of the rate to be charged on domestic traffic from the port of entry in this country through which the import shipment moves would be to establish a hard and fast rule difficult if not impossible for the rail carriers in this country to conform to in the establishment and publication of their rates, in view of that uncertain and flexible element involved in the ascertainment of the total through charges, to wit, the rates to the port.

5. Discriminations of the nature referred to in sections 3 and 4 of the act, in so far as they result from the bona fide action of a carrier in meeting circumstances and conditions not of its own creation, and which are reasonably necessary for that purpose, do not of necessity fall under the condemnation of the law.

6. Transportation from a seaport of the United States or an adjacent foreign country to an interior American destination, in completion of a through movement of freight from a point in a foreign but not adjacent country, whether upon a joint through rate or upon a separately established or proportional inland rate applicable only to imports moving through, is not a "like service" to the transportation of traffic starting at such domestic port, though bound for the same destination. 7. As held in numerous decisions of the Supreme Court, it is neither required by law nor just that the rates of a carrier on traffic subject to intense competition shall mark the limit or measure of its rates on traffic not subject to such competition. Being bound to consider the more intense competition to which the transportation of the foreign product is subject as one of the "circumstances and conditions" affecting the relative adjustment of rates, the Commission can not, solely upon the basis afforded by a comparison of the inland proportion of the through rate from the foreign point of origin with the rate applying on domestic shipments of plate glass in this country, condemn the latter as unreasonable or unjustly discriminatory. As rates applying on domestic shipments of plate glass between points in this country were challenged mainly on the ground of unjust discrimination and not on account of their unreasonableness per se, and as there is no basis in the record of the case as presented for a determination as to whether these rates are or are not just and reasonable of themselves, the complaint is dismissed without prejudice.

W. S. Dalzell for complainant.

George S. Patterson for Pennsylvania Railroad Company; Pennsylvania Company, and Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

S. F. Andrews for Norfolk & Western Railway Company.

John J. Wilson for Baltimore & Ohio Railroad Company and Baltimore & Ohio Southwestern Railroad Company.

C. C. Paulding for New York Central & Hudson River Railroad Company; Lake Shore & Michigan Southern Railway Company, and Michigan Central Railroad Company.

S. F. Andrews and Perkins Baxter for Illinois Central Railroad Company.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

The issue here involved is alleged unjust discrimination in rates against domestic plate glass and in favor of that imported from foreign countries in that while the Official Classification third-class rate applies on domestic shipments, shipments from foreign producing points via ocean steamship lines to ports of entry and thence by rail to ultimate interior points of destination in this country are accorded rates never in excess of fourth class and in many instances much below fifth class.

The original complaint filed by complainant (No. 792) was set for hearing in Washington, D. C., May 15, 1905. On that day a petition was filed by the same complainant against the Illinois Central Railroad Company, alleging that this carrier in making a rate of 32 cents per 100 pounds on plate glass in carloads from Antwerp, Belgium, to Chicago, Ill., and 38 cents per 100 pounds from the same place to Minneapolis, Minn., and at the same time exacting a rate of 40 cents per 100 pounds from Chicago to Minneapolis, 60 cents per 100 pounds from Pittsburg to Minneapolis, 51 cents per 100 pounds from Kokomo to Minneapolis, and 42 cents per 100 pounds from East St. Louis to Minneapolis, subjected complainant and other American manufacturers of plate glass to unreasonable and unjust rates and undue and unreasonable prejudice and disadvantage.

The Illinois Central Railroad Company admitted quoting the above-mentioned rates for shipments of plate glass in carloads, tendered during the year 1905, but averred that neither complainant nor any other shipper or importer had tendered any shipments of plate glass between said points since these rates were quoted; that the reason it quoted said rates was to enable this defendant to handle some of this import traffic, and in order to handle it to meet competitors' rates on this traffic through Atlantic ports, from Montreal to Newport News; that it was necessary for the Gulf ports to name lower rates than those through Atlantic ports because of the longer voyage, slower steamers, and less frequency and regularity of service; that this rate had not resulted in any business to defendant and it is reasonable to conclude that defendant overestimated its quotation, or underestimated its disadvantages, but defendant denied that these rates on import and domestic glass, respectively,

were unreasonable or unjust or subjected complainant to undue or unreasonable prejudice or disadvantage in violation of the act to regulate commerce.

On March 9, 1906, hearing was had at Pittsburg, Pa., and it was requested that the divisions accorded the railroads out of the through rates be filed in the record. The defendants objected to this requirement, but subsequently most, if not all, of the divisions involved were filed.

Considerable delay has been experienced in reaching a decision in this case by reason of the supplementary proceedings against the Illinois Central Railroad (that company not having been made a party defendant in complainant's first petition), the difficulties in obtaining statements of the divisions, and the effort to subserve the convenience of parties at the hearings.

By consent of parties it was agreed that the two cases should be consolidated and heard together and that all the evidence filed in the first case (No. 792) be considered and made a part of the second case (No. 815) so far as same was applicable. The cases were finally argued and submitted May 9, 1907, and will be disposed of in one opinion.

The complainant is largely engaged in the manufacture and sale of plate glass, having its principal works at Pittsburg, Pa., and certain auxiliary plants and warehouses at convenient distributing points in the United States, and also a plant in Brussels, Belgium.

It appears that the plate-glass industry is one of comparatively recent origin in the United States, and that complainant, having taken over about ten of the companies that were operating independently, incorporated in the year 1895 under the name of the Pittsburg Plate Glass Company, having a capital stock of $10,000,000, which was increased in 1902 to $12,492,000, based on actual values. This company manufactures and sells about 60 per cent of the plate glass made in the United States.

This industry is protected by a duty on import glass, all sizes up to 2 feet 8 inches, of 8 cents per square foot; from 2 feet 8 inches up to 5 square feet, 10 cents per square foot; from 5 to 10 square feet, 221 cents per square foot, and on all sizes exceeding 10 square feet, 35 cents per square foot. Complainant says this duty is inadequate for the protection of the industry, as appears from the following table, showing the increased importation of glass in recent years: