St. L. & S. F. R. R. Co., 15 I. C. C. 37, 38.
VII. EFFECT OF EVIDENCE.
15. Equities of Cause.
See Reasonableness of Rates. 24
(a) There are cases in which "tainted
hands" unquestionably compel a per-
emptory dismissal; but the Commission
does not inquire into equities not con-
nected with the issue before it. Lum
v. G. N. Ry. Co., 21 I. C. C. 558, 562.
(b) The through rate, $9.75 per ton,
on blacksmith coal from Chicago to
Portales, N. M., was higher than the
combination of locals, $8.25 per ton, on
bituminous coal via Pittsburg, Kan.,
from Chicago to Portales. In order to
secure such lower rate complainant at
Chicago, with full knowledge of the rate
situation, connived with defendant's
agent at Chicago to have the shipment of
blacksmith coal billed to Pittsburg as
bituminous coal. The agent at Pittsburg
refused to rebill the coal to Portales as
bituminous coal and demanded the local
rate on blacksmiths' coal from Pittsburg
to Portales, $13.20 per ton. Complainant
refused to pay, and the coal was seized
and sold by defendant for freight charges.
HELD, complainant having fraudulently
attempted to obtain the benefit of a rate
not applicable to its shipment, and de-
fendant having concurred therein, neither
party came before the Commission with
clean hands, and a relieving order with
respect -to the proceeds of the sale of
the coal should be denied. Sligo Iron
Store Co. v. A. T. & S. F. Co., 17 I. C.
C. 139, 142.
16. Judicial Notice.
See Evidence, III.
(a) While the rates from certain east-
ern and southern points are not involved
in this proceeding, the Commission never-
theless considers the entire situation.
Merchants' Freight Bureau v. M. P. Ry.
Co., 21 I. C. C. 573, 575.
(b) The Commission should exhaust
its activities in developing pertinent
facts necessary to full investigation and
hearing of complaint. Quammen & Au-
stad Lumber Co. v. C. M. & St. P. Ry.
Co., 19 I. C. C. 110, 111.
(c) The Commission is bound to con-
sider the whole field when a general
rate adjustment is demanded, and must
carefully consider the probable effects
upon other points not involved in the
specific complaint under consideration.
Greater Des Moines Committee v. C. M.
& St. P. Ry. Co., 18 I. C. C. 73, 79.
(d) No reason exists why the Com-
mission cannot take judicial notice of
the lawful rate established by another
sovereign p-ower applicable to shipments
in its own domain. Awbrey & Semple v.
G. H. & S. A. Ry. Co., 17 I. C. C. 267, 271.
(e) In tlie general adjustment of
rates, individual instances of seeming
discrepancy are noticed, which are inex-
plainable from a cursory examination,
but often when such instances are made
the subject of specific complaint, cir-
cumstances and conditions before un-
known are brought out tending to justify
the apparently unreasonable relation.
The Commission consequently moves
with great caution in condemning a rate
or practice, and does so only when the
facts before it amply warrant such ac-
tion. Sanford v. Western Express Co.,
16 I. C. C. 32, 36.
(f) The Commission's conclusions
must be reached with due consideration
for conclusions which it has already an-
nounced on the same subject and from
knowledge which it has gathered with
relation thereto in other cases and inves-
tigations. Swift & Co. v. C. & A. R. R.
Co., 16 I. C. C. 426, 429.
(g) The only duty of the Commission
in this case is to establish reasonable
rates from eastern points of origin to
Spokane, and in so doing it can only
act upon those rates specifically called
to Its attention, although it must have
in mind the effect upon the revenues of
the carriers of resulting reductions upon
other commodities and at other points
from Spokane. City of Spokane v. N. P.
Ry. Co., 15 I. C. C. 376, 419.
PROCEDURE BEFORE COMMISSION, 17 (a) (1)
17. Res Adjudicata.
See Evidence, V.
(a) In cases before this Commission
involving rates, neither the plea of res
adjudicata nor stare decisis, as used at
common law, has any standing as affect-
ing shipments moving subsequent to the
decision of the Commission relied on.
Waco Freight Bureau v. H. & T. C. R. R.
Co., 19 I. C. C. 22, 24.
(b) A plea of res adjudicata is con-
clusive as to all that preceded the ef-
fective date of the Hepburn Act. Na-
tional Hay Ass'n v. M. C. R. R. Co., 19
I. C. C. 34, 37.
(c) Rates reasonable at the present
time may within the period of two years
become very unreasonable by reason of
changes in circumstances and conditions,
economic, transportation, or the like. It
should be just as apparent that a rate
more ago may become reasonable by
which was unreasonable two years or
reason of such changes in conditions. A
plea of estoppel by reason of former
adjudication is not good in so far as an
investigation of present rates is con-
cerned, although in a former proceeding
a decree of a court was a general find-
ing for the defendants on all the is-
sues of fact. National Hay Ass'n v. M.
C. R. R. Co., 19 I. C. C. 34, 37.
(d) While an order of the Commis-
sion in a particular case must necessarily
fix the rights of a party to the proceed-
ing so far as past shipments are con-
cerned, and must necessarily restrain un-
til further order the continuance of a
rate or practice condemned, and compel
the carrier to observe the rate or prac-
tice prescribed for the future, these great
questions of transportation are not fore-
closed of further discussion and consid-
eration upon further complaint. Addi-
tional experience with the actual opera-
tion of rules that combine commercial
with physical capacity in the rating of
coal mines for car distribution, may
throw new light upon a matter that has
vexed the Commission, as well as many
carriers that have endeavored to do
equity as between different mines on
their lines, and if so the Commission
shall not hesitate to modify what has
been said in this and in other cases be-
fore it on that question. The principle
of stare decisis has little application in
proceedings involving questions of this
nature. Hillsdale Coal & Coke Co v.
P. R. R. Co., 19 I. C. C. 356, 361.
(e) The doctrine of stare decisis has
little application in proceedings before
the Commission involving economic ques-
tions of transportation. Hillsdale Coal
& Coke Co. v. P. R. R. Co., 19 I. C. C.
(f) Although the Commission in a
prior case has held that a general ad-
justment of rates in a large territory is
not shown to be unreasonable, shippers
are not precluded from bringing subse-
quent complaints against particular rates
in the territory alleged to be unreason-
able. Ferguson Saw Mill Co. v. St. L.
I. M. & S. Ry. Co., 18 I. C. C. 391, 393.
(g) Plainly there can be no such thing
as judicial estoppel in the proceedings
of the Commission, since its orders are
not judgments, nor is it a judicial body,
and this is especially true where the
parties are not the same. Receivers &
Shippers Ass'n of Cincinnati v. C. N. O.
& T. P. Ry. Co., 18 I. C. C. 440, 444.
(h) When a given rate situation has
been fully considered and deliberately
passed upon by the Commission, the de-
cision ought to be, if not binding upon
it, certainly of very great weight with
it in considering the same situation in a
later proceeding between different par-
ties, but this rule applies only where
the same state of facts is involved in the
latter as in the former proceeding. Re-
ceivers & Shippers' Ass'n of Cincinnati
V. C. N. O. & T. P. Ry. Co., 18 I. C. C.
(ij) Where reparation has been
awarded for an excessive charge on hay,
the Commission will not enter an order
establishing for the future the lower
rate upon which such reparation is based
where the rate situation between the
points in question has been determined
by a previous decision. Arkansas Fuel
Co. v. C. M. & St. P. Ry. Co., 16 I. C. C.
(k) A decision in another case
against other carriers operating in dif-
ferent territory under essentially dis-
similar circumstances and conditions af-
fords no controlling precedent. Chicago
Lumber & Coal Co. v. Tioga Southeast-
ern Ry. Co., 16 I. C. C. 323, 328.
(1) While there is in the nature of
things no estoppel of record in proceed-
ings before the Commission it must of
necessity, when it reaches a conclusion
upon a given state of facts, adhere to
that conclusion in subsequent proceed-
PROCEDURE BEFORE COMMISSION, 17 (m) 19 (c)
ings unless some new facts or changed
conditions are brought to its attention,
or unless it proceeded upon some mis-
conception in reaching the original de-
cision. Banner Milling Co. v. N. Y. C.
& H. R. R. R. Co., 14 I. C. C. 398, 400.
(m) Where the rate question as
raised in a complaint is the same as
that determined in a former proceeding
before the Commission, between the
same parties, the Commission may, in
its discretion, treat such complaint as
a new and independent proceeding
where it is claimed the former decision
was made under a misapprehension
of fact or of law. Banner Milling Co. v.
N. Y. C. & H. R. R. R. Co., 14 I. C.
C. 398, 401.
(n) While the action of the Com-
mission in one case touching the reason-
ableness of a rule or regulation affect-
ing rates ought ordinarily to afford a
guide for its action in another case in-
volving the same rule or regulation,
even though between other litigants,
nevertheless the question of reasonable-
ness is always one of fact, and each
case must stand upon its own record.
The ruling on a question of reasonable-
ness in a previous case between other
parties is not controlling where different
facts are involved. Kansas City Hay
Dealers' Ass'n v. M. P Ry Co., 14 I. C.
C. 597, 600.
18. Requesting Information of Carrier.
(a) In a complaint charging an ex-
press company with unjust discrimina-
tion in transporting money, a subpoena
duces tecum will not issue to compel
defendant to furnish voluminous infor-
mation with respect to its financial and
business transactions where it does
not appear necessary so to do and the
information sought is not pertinent to
the questions involved. American Bank-
ers' Ass'n v. American Express Co., 15
I. C. C. 15, 24.
19. Tests of Revenue.
(a) Proposed commodity rates in in-
termountain cases to be put into effect
pending decision by the Supreme Court.
City of Spokane v. N. P. Ry. Co., 23 I.
C. C. 454, 456.
(aa) Commodity rates proposed by
carriers permitted to go into effect
pending decision of long-and-short-haul
question. R. R. Com. of Nev. v. S. P.
Co., 23 I. C. C. 456, 457.
(b) The Commission reduced com-
modity rates from the east to Spokane.
HELD, that before making the final
order it will be advisable to learn the
result of an actual test, and that car-
riers will be required for the months
of July, August and September, 1910,
or for such other representative months
as may be determined upon by the
Commission, after conference with the
carriers, to furnish an accurate and de-
tailed account, showing the revenue
which accrued upon business actually
handled under present rates, and the
revenue which would have accrued upon
the same business had the rates here
prescribed been in effect. This ac-
count should be confined to traffic cov-
ered by the rates named, but the car-
riers may, if they elect, indicate what
other changes will be required which
are not covered by the rates prescribed
in this" and other cases, and may keep
separate accounts showing the loss as
applied to actual transactions. City of
Spokane v. N. P. Ry. Co., 19 I. C. C.
(bb) Before reducing the class and
commodity rate between eastern terri-
tory and Utah common points by a
formal order, the Commission will re-
quire the defendant to furnish an ac-
curate account for representative months,
showing the difference between the re-
ceipts upon traffic actually moved under
present rates and what those receipts
would have been on the same traffic
had the proposed reduced rates been in
effect. Carriers may also indicate any
changes in other rates which would in
their opinion be necessitated by the
putting in of the rates proposed and
may show tne reduction in revenue
so occasioned, but the changes should
be definitely indicated, and the loss of
revenue due to other reductions should
be kept entirely distinct from that due
to the rates here specified. Commercial
Club, Salt Lake City, v. A. T. & S. F.
Ry. Co., 19 I. C. C. 218, 230.
(c) Before making a formal order re-
ducing the commodity rates from east-
ern territory into Nevada, the Com-
mission will require from the carriers
for such representative months as may
be agreed upon statements showing the
following facts with reference to ship-
ments into Nevada: The commodity;
the weight, C. L. or L. C. L.; point of
origin, and the transcontinental terri-
torial group in which the same is sit-
PROCEDURE BEFORE COMMISSION, 19 (d) PROPORTIONAL RATES, I (b) 555
uated; rates that would be applied
under the tariffs in effect July 1, 1910;
the gross charges thereunder; the
rate applicable under the order made in
this case; the gross charges thereunder;
the rate that would be applied were the
movement to Sacramento; the gross
charges thereunder. The complainant
will be ordered in this case on or be-
fore Oct. 1, 1910, to furnish to the Com-
mission and to the defendant S. P. Co.
a list of commodities upon which com-
modity rates are desired, together
with an outline of the various terri-
tories or groups from which commodity
rates should apply. Railroad Commis-
sion of Nevada v. S. P. Co., 19 I. C. C.
(d) Before reducing the commodity
rates to Phoenix from eastern territory
to a basis of those enjoyed by Los An-
geles, the Commission will require a
statement for such representative months
as may be agreed upon, showing the
commodity, the weight, carload or less-
than-carload, point of origin, and the
transcontinental territorial group in
which the same is situated, rate appli-
cable under the tariffs in effect July 1,
1910, the gross charges thereunder, the
rate applicable under the order made in
this case, if extended to all points in
Arizona east of and intermediate to
Phoenix, the gross charges thereunder,
the rate that would be applied were the
movement to Los Angeles, and the gross
charges thereunder. The complainant
will be required to furnish to the Com-
mission on or before Oct. J., 1910, and to
the delivering carriers a list of commod-
ities upon which commodity rates are de-
sired, together with an outline of the
various territories or groups from which
rates should apply. Maricopa County
Commercial Club v. S. F. P. & P. Ry.
Co., 19 I. C. C. 257, 258.
(e) Before reducing the class rates
from Tacoma, Seattle and Portland to
points in Washington, Idaho, Montana
and Oregon, the Commission will require
an accurate statement for such repre-
sentative months as may be agreed upon,
showing the revenue which actually ac-
crued under the class rates in issue and
the revenue which would have accrued
on the same volume of business under a
20 per cent reduction in those rates. The
account must, of course, be limited to the
rates and traffic mentioned, but the car-
riers may keep and present to the Com-
mission separate accounts, showing the
loss and revenue resulting from other
reductions, which they would feel obliged
to make, as a consequence of the Com-
mission's finding in this case. Portland
Chamber of Commerce v. O. R. R. & Nav.
Co., 19 I. C. C. 265, 284.
(f) Where the Commission has al-
lowed defendant railroads to assess cer-
tain track storage charges, it may limit
the order to a certain date and require
defendants to file at the expiration of the
period a statement showing the amount
of track storage charges assessed, the
contents of each car against which they
are assessed, and the reason, if known,
why the car was not more promptly un-
loaded. Such information to serve as a
guide to the Commission in fixing said
charges for the future. N. Y. Hay Ex-
change Ass'n v. Penn. R. R. Co., 14 I.
C. C. 178, 188.
IV. REASONABLENESS AND EVI-
See Facilities and Privileges, 4 (f) ;
Through Routes and Joint Rates,
(a) The fact that a published sched-
ule contains a heading indicating that
the proportional rates contained therein
are adopted in connection with certain
other designated roads, does not limit
the application of these rates to ship-
ments received by the carrier publish-
ing the rates from those roads where
the body of the tariff indicates that the
proportional rates named therein are to
be applied on traffic received by it
from roads other than those designated
in the heading. K. C. S. Ry. v. Albers
Comm. Co., 223 U. S. 573, 595, 32 Sup.
Ct. 316, 56 L. ed. 556.
(b) Defendant carrier extended from
Kansas City, to Texarkana a propor-
tional rate of lOc from Kansas City
to Texarkana on grain coming to Kan-
sas City by another line from Omaha.
The tariff also applied this proportional
from certain common points such as
St. Joseph, Atchison, and Leavenworth
to Texarkana on grain coming from
beyond to these points and carried by
roads other than defendant from these
common points to Kansas City. HELD,
PROPORTIONAL RATES, I (c) II (a)
in order to make the lOc proportional
the legally established rate on grain
coming from Omaha to Kansas City and
shipped thence over defendant's line
to Texarkana it was not necessary that
the carriers from these common points
of St. Joseph, Atchison, -and Leaven-
worth should concur therein, since they
had no interest in the shipmem. K. C.
S. Ry. Co. v. Albers Comm. Co., 223
U. S. 573, 594, 32 Sup. Ct. 316, 56 L.
(c) When a carrier publishes a pro-
portional rate from a basing point to
a certain destination, it thereby makes
itself a link in the through transporta-
tion, and whatever privileges it accords
to millers at the basing point it should
accord to millers on its line inter.u\edi-
ate thereto. Southern Illinois Millers'
Ass'n v. L. & N. R. R. Co., 23 I. C. C.
(d) There is no substantial differ-
ence between a "reshipping" rate and
what is known as a "proportional"
rate. The Commission has held that
proportional rates are not per se un-
lawful, and there is no reason to con-
demn "reshipping" rates, as such, upon
the present record. Baltimore Chamber
of Commerce v. B. & O. R. R. Co.. 22
I. C. C. 596, 600.
(e) Complainants shipped a carload
of gum lumber from Brilliant, Ala., to
Thebes, 111., and thence forwarded it
to Clinton, la. The tariff under which
the shipment moved carried a propor-
tional rate of lie per 100 Ibs. from
Winfield to Thebes when "for beyond."
HELD, the fact that the shipment was
intended to be reconsigned at Thebes
for Clinton did not entitle complainant
to the proportional rate under a proper
construction of the tariff. Beekman
Lumber Co. v. I. C. R. R. Co., 20 I. C.
C. 98, 99.
(f) Where a shipment to a local
point is unloaded, and later reshipped
at the local rates, it is not entitled
to the benefit of a lower proportional
established more than a year thereafter.
Central Lumber Co. v. C. M. & St. P.
Ry. Co., 18 I. C. C. 495, 496.
(g) A proportional rate should not be
limited to traffic from particular places.
Bayou City Rice Mills v. T. & N. O.
R. R. Co., 18 I. C. C. 490, 493.
(h) A proportional rate was pub-
lished, but this did not make it a legal
rate in view of the existence of a yub-
lished through rate. Lindsay Bros. v.
B. & O. S. W. R. R. Co., 16 I. C. C.
(i) A proportional rate means a part
of or a remainder of the through rate,
or it means nothing at all. Kansas City
Transportation Bureau v. A. T. & S. F.
Ry. Co., 16 I. C. C. 195, 201.
(j) There is no uniform percentage
relationship between local and propor-
tional rates, the proportional rates
from one point being made with re-
lation to those from a competitive point
to the same markets. Indianapolis
Freight Bureau v. C. C. C. & St. L.
Ry. Co., 15 I. C. C. 504, 511.
See Discrimination, 5 (i), 7 (z) ;
Express Companies, 4 (a); Facil-
ities and Privileges, 2 (d), 21 (b).
(a) Certain milling points in central
and eastern Wisconsin have been
grouped with Chicago and Milwaukee
in the proportional rates on grain anl
grain products from Kansas City, Oma-
ha and Council Bluffs. On May 15, 1911,
the proportional rates of these Wiscon-
sin points were withdrawn, which
raised the rate from Omaha and Coun-
cil Bluffs from 12c to the local rate
of 15 %c and to 14 %c from Kansas
City. The proportional rates were can-
celed because complaint had been made
that the application of a proportional
rate of 12c from the Missouri River
to Wisconsin points, a distance of 700
miles, while the rate to Duluth was
15c for a distance of 600 miles, was a
discrimination against the millers of
Duluth. The 12c proportional rate to
Chicago and Milwaukee resulted to some
extent from the competition of the
Memphis and St. Louis gateways, which
does not apply to the Wisconsin terri-
tory in question. Chicago is not a
competitor of complainants who are
millers in central and eastern Wis-
consin. While Chicago and Milwaukee
millers may receive grain on the 12c
proportional rate it may be cleaned
and milled only on the basis of the
15%c rate with the privilege of ship-
ping the . product to points beyond tak-
ing the same rate. Complainants ex-
pressly admitted the reasonableness of
the local rates to Wisconsin points, but
-complained of the discrimination against
them by the lower proportional rates
to Chicago and Milwaukee. HELD, if
PROPORTIONAL RATES, II (aa) (h)
the transit privilege is not abused at
Chicago and Milwaukee there is no dis-
crimination against the Wisconsin mill-
ers based on the proportional rates to
these two points, because it will cost
millers at these points the same to
compete with the millers in central and
eastern Wisconsin as those millers pay.
The admission of complainants that
they do not contend that the present
charges are unreasonable relieves defend-
ants of the burden of justifying them,
and therefore, there being no discrim-
ination apparent, and no unreasonable
rate involved, the complaint must be
dismissed. Wisconsin State Millers'
Ass'n v. C. M. & St. P. Ry. Co., 23
I. C. C. 494.
(aa) Competition may justify the
maintenance of proportional rates on
grain at Omaha while denying such
rates at Sioux City. Sioux City Ter-
minal Elevator Co. v. C. M. & St. P.
Ry. Co., 23 I. C. C. 98, 109.
(b) There can be no discrimination
against one manufacturer who does not
ship over the defendant's line because
it maintains a low inland proportional
rate on a commodity, raw material des-
tined to a competitor. In Re Rates,
etc., of the Louisiana Ry. & Nav. Co.,
22 I. C. C. 558, 564.
(c) A proportional rate, like any
other rate, should be open to all ship-
pers. In Re Restricted Rates, 20 I. C.
C. 426, 436.
(d) On carloads of ear corn orig-
inating at points on connecting lines
beyond Enfield, 111., and shipped from
Enfield to Henderson, Ky., and des-
tined to southeastern territory, a rate
of 7.08c was collected by the defendant
L. & N. R. R. At the time of ship-
ment it published for transportation
to Henderson from all junction points
on its St. Louis division other than
Enfield of grain originating beyond said
junction points and reshipped to east-
ern points, a proportional rate of 3c.
Such proportional rate was formerly
applicable from Enfield but was omitted
by mistake and was established sub-
sequent to the shipments in question.
HELD, the rate exacted was unduly
discriminatory and unreasonable and
should not have exceeded 3c. Repara-
tion awarded. Henderson Elevator Co.
v. L. & N. R. R. Co., 18 I. C. C. 538,
(e) A proportional rate is nothing
more or less than a separately es-
tablished rate, as that phrase is used
in section 6 of the amended Act, ap-
plicable to through transportation. And
it has not been understood that a sepa-
rately established rate can be other
than an open rate available to all.
Bascom Co. v. A. T. & S. F. Ry. Co.,
17 I. C. C. 354, 356.
(f) The rate on sugar-beet pulp
from Waukesha, Wis., to eastern points
is the same as from Chicago on ship-
ments originating from Janesville, Wis.