the passage of the act would be forwarded, but they have not as yet been received. If the billing called for should show shipments since November 15, 1906, at the rates testified to by complainant, it would prove that shipments had moved at unlawful rates.

Complainant now submits various reports of sales from consignees at St. Louis in 1905, 1906 and 1908, which show net weight of fish in sugar barrels considerably over 200 pounds, express charges $6 per barrel; and tubs, apparently above 175 pounds, express charges $3.75. Some accounts of sales show express charges at the rate of $6 plus 14 cents for excess above 200 pounds. These exhibits were not the ones called for at the hearing. They are statements made up by one not a party to the record; are not binding on the defendant and have no probative force as evidence.

Complainant's allegation that the rate has been increased is not sustained by the evidence. The tariff containing the rates complained of has been in effect since November 15, 1900, and was filed with the Commission November 15, 1906. But it is apparent that prior to the time at which defendant was brought under the act to regulate commerce, notwithstanding notices and written instructions to its agents that the sugar-barrel rate contemplated but 200 pounds of fish, its tariff provisions relating thereto were not observed. The defendant lays stress upon the fact that earnest endeavors were made by it to have the shippers conform to its regulations in packing for shipment, but it states those regulations have been disregarded in many instances. The fact that the regulations were not complied with by the complainant resulted in his obtaining transportation of a greater weight of fish at the rate per barrel than was contemplated. The defendant contends that it is entitled to the credit of attempting to enforce the provisions of the law under which it now operates, and it appears that honest attempt has been made to bring about compliance with tariff provisions. It is manifestly impracticable to weigh the fish in every barrel in order to determine in each instance whether or not the contemplated weight, or any excess thereof, is contained in the package. The law places the same obligation upon the shipper as upon the carrier to observe lawful tariff provisions. Any willful false representation of the contents of a package on part of a shipper is prohibited by the law, denominated as a fraud, and declared to be a misdemeanor; and the shipper convicted thereof is subject to fine or imprisonment, or both, in the discretion of the court.

The tariff referred to limited the amount of ice to be shipped with fish to 25 per cent of the weight of the fish. The actual practice has been to permit 50 or 60 per cent to be used. Defendant has no tariff provision which justifies this practice, and if it is to be continued 13 I. C. C. Rep.

the allowance of the larger amount of ice must be provided for in tariff.

The practice of the defendant is, when that is necessary for the preservation of fish, to re-ice in transit, charging the market price for ice at the locality where such re-icing is done; but it has no tariff provision therefor. The law requires, and the Commission has repeatedly stated, that no charge shall be made by carrier for any service except such as is provided for in a lawful tariff; and if the defendant is to continue the practice of re-icing in transit and charging the shipper therefor, it must provide for that service and charge, in a tariff applicable to the commodity so re-iced.

The railroad freight rate on fish between the points of shipment involved in this complaint is $2 per 100 pounds. The express company's service is by fast passenger trains, each package is given especial attention, the shipments are delivered at doors of consignees, and the rate of freight is $3 per 100 pounds.

We can not hold that the rate charged is unreasonable.

Manifestly, where a shipper has in effect received a reduced rate on account of his irregularities and those of the carrier transporting the goods, correction of those irregularities can not be made the basis for award of reparation.

The complaint will be dismissed.

13 I. C. C. Rep.

No. 1474.

BUTTERS LUMBER COMPANY

v.

ATLANTIC COAST LINE RAILROAD COMPANY; RICHMOND, FREDERICKSBURG & POTOMAC RAILROAD COMPANY; WASHINGTON SOUTHERN RAILWAY COMPANY; PENNSYLVANIA RAILROAD COMPANY; PHILADELPHIA, BALTIMORE & WASHINGTON RAILROAD COMPANY, AND PHILADELPHIA & READING RAILWAY COMPANY.

Submitted April 18, 1908. Decided May 4, 1908.

Complainant is entitled to recover from defendants the sum of $51.94, as reparation for unjust and unreasonable charge on specified shipments of lumber made under the rate complained of in this case.

Conrad H. Syme for complainant.

G. S. Patterson and G. V. Massey for Pennsylvania Railroad Company and Philadelphia, Baltimore & Washington Railroad Company.

Charles Heebner for Philadelphia & Reading Railway Company. Ed. Baxter and R. W. Moore for Altantic Coast Line Railroad Company, Richmond, Fredericksburg & Potomac Railroad Company, and Washington Southern Railway Company.

REPORT OF THE COMMISSION.

CLARK, Commissioner:

Complainant in this case alleges that certain shipments of lumber were made from Boardman, N. C., to Pottsville, Pa., and to Schuylkill Haven, Pa., over the lines of the defendants, upon which a through rate of 25 cents per 100 pounds was collected, and that at the time these shipments moved, to wit, between January 11, 1907, and March 12, 1907, defendants had in effect local rates on lumber from Boardman to Richmond, 12 cents per 100 pounds, and from Richmond to Pottsville and Schuylkill Haven, 11 cents per 100 pounds, thus making a combination of locals on Richmond 2 cents less than the through rate.

On hearing, defendants admitted that the shipments as alleged in the complaint had been made and that the through rate of 25 cents per 100 pounds had been charged thereon, but showed that the local rate from Boardman to Richmond was 13 cents per 100 pounds, instead of 12 cents, as alleged in complaint.

Defendants showed that it is customary to have rates from points in the south to points in Pennsylvania the same via Norfolk and Richmond and other gateways; that the local rate from Norfolk to Pottsville and Schuylkill Haven had been made 13 cents late in 1905; that attention had been called in October, 1906, to the fact that the rate from Richmond was less than that from Norfolk, and that in April, 1907, this had been corrected, thereby restoring the generally established relation of rates through these gateways, and from these gateways to points of destination involved.

It appears that no lumber originates at Richmond, and that there was no published rate on lumber from Boardman to Richmond other than the 13-cent rate. The defendants never intended that the combination on Richmond should be less than on Norfolk or that it should be less than the through rate. It seems, however, that competitors of complainant had at times used the lower combination on Richmond while it was in existence.

Neither in complaint nor on hearing did complainant allege that any of the rates in question, either as they existed at the time these shipments moved or as they were later corrected, were or are unreasonable. Complainant simply prayed for reparation in the sums charged on these shipments in excess of the combination of local rates on Richmond, Va., via which route these shipments moved.

After brief hearing, it was agreed by counsel for both sides that, confining the reasons and justification therefor entirely to the record in this case, and establishing no precedent to be followed in connection with other complaints of a similar nature, this complaint should be adjusted by entry of an order for payment to the complainant by defendants of the sum of $51.94, which represents the difference of 1 cent per 100 pounds upon the shipments specified in complaint and admitted by defendants.

An order will be entered accordingly.

13 I. C. C. Rep.

No. 1338.

KOCH SECRET SERVICE

v.

LOUISVILLE & NASHVILLE RAILROAD COMPANY.

Submitted April 14, 1908. Decided May 4, 1908.

Defendant is guilty of unjust discrimination in refusing a special excursion rate to parties of 10 or more persons in the employ of complainant, presented by it for transportation between Nashville, Tenn., and Evansville, Ind., while according said rate to parties of 10 or more persons of other avocations traveling between the same points at the same time. Reparation awarded.

Alfred T. Levine for complainant.

William G. Dearing for defendant.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

Complainant is a corporation chartered under the laws of the state of Tennessee and is engaged in secret service and detective business. On May 6, 1907, complainant sent a party of 16 men, all in its employ, from Nashville, Tenn., to Evansville, Ind., for whom fares were collected in the amount of $80; on May 16, 1907, another party of 23 men from Nashville to Evansville, for whom fares were collected in the amount of $115, and on May 21, 1907, another party of 18 from Evansville to Nashville, for whom aggregate fares were collected by the defendant amounting to $90. All of these amounts were paid by complainant under protest and receipts signed by properly constituted agents of the Louisville & Nashville Railroad Company were issued therefor and are filed in the record. On May 21 complainant offered a party of 10 men for transportation from Evansville to Cincinnati, asking that the party rates then applicable under the tariffs to parties composed of other classes of persons, as will be hereinafter described, be accorded thereon. Defendant declined to accord said party rate, in consequence of which only 9 men were sent and 9 tickets bought, the tenth man not going on account of the refusal of defendant to accord the party rate.