mills per quart from Poultney and inter-
mediate points to Eagle Bridge. Be-
tween Providence, R. I., and Boston,
Mass., a distance of 45 miles over the
N. Y. N. H. & H. R. R., the rate was $17.24
per car, the equivalent of 6.9c per can, or
1.7 mills per quart. Other instances in
nearby territory were similar. The ad-
vanced rate proposed was $22.50 per car,
or 2.25 mills per quart. HELD, that the
proposed increased rate is unreasonable
and unjust but that there is probable
justification for an advance in the pres-
ent rate to $17.25 per car of 250 cans of
40 quarts each, and 7c per can for any
excess over 250 cans. In Re Advances
by the D. & H. Co. on Fluid Milk, 23
I. C. C. 500.

(b) It not appearing that a proposed
advanced rate from Portland, Colo., to
Denver of 7^c per 100 Ibs. on cement
is too high when compared with a rate
of a same amount from lola, Kan., to
Kansas City, the former haul being the
longer and more difficult, the proposed
new rate is permitted to go into effect.
In Re Advances on Cement, 20 I. C. C.
588, 597.

18. (8) Circuitous Route.

See Through Routes and Joint Rates,
6.

(a) Complainant attacked the reason-
ableness of an advance in rates on staves



ADVANCED RATES, 18 (9) (a) 19 (a)



45



and heading which move at the hardwood
lumber rate from Arkansas producing
points to Cairo and Thebes, 111., as af-
fecting the total through charge to points
beyond. Via the Frisco R. R. the typical
rate from McNab, Ark., effective March
1, 1907, was 13c per 100 Ibs.; effective
Aug. 14, 1908, 14V 2 c; effective Dec. 10,
1908, 16c; effective Sept. 15, 1909,- 14c;
effective July 5, 1910, 16c, where it has
remained. The haul is 710 miles to
Thebes, revenue per ton mile, 4.5 mills.
Via the Iron Mountain R. R. the typical
rate was from Fulton, Ark. This rate was
13c, effective March 1, 1907; 14y 2 c, effect-
ive July 28, 1908; 16c, effective Dec. 12,
1908; 14c, effective Aug. 19, 1909; 16c,
effective Aug. 4, 1910, the current rate.
The distance to Thebes is 383 miles,"rev-
enue per ton mile 8.3 mills. The ship-
ments involved moved between Dec. 12,
1908, and the dates when the lower rates
were restored from the respective points
of origin. Reparation was asked on basis
of the rates in effect to Thebes, immedi-
ately previous and subsequent to the
period referred to; i. e., on basis of 14c
from Fulton and McNab. The Iron Moun-
tain R. R. is the short line to Thebes,
but the Frisco in order to retain the en-
tire haul of the traffic carries it by a
circuitous route making a haul almost
twice as long as on the competitive line.
HELD, it is obvious that the Frisco R. R.
cannot subject McNab to the payment of
unreasonable rates merely in order that
traffic may be carried over its own lines
by an unreasonably circuitous route,
whereas another reasonable route and
one about half as long could be had by a
joint rate over the Frisco and Iron Moun-
tain R. Rs. However, the rates charged are
not so high on their face as to appear
unreasonable. They are not shown to be
out of line with rates from other Arkan-
sas points and do not afford greater
revenue than rate_s from Arkansas points
prescribed by the Commission in other
cases. Complaint dismissed. Winter-
botham & Sons v. M. P. Ry. Co., 21 1. C. C.
266.

18. (9) Use of Commodity.

See Classification, 10.
(a) Complainants attacked an advance of
33 * per cent in rates on stock cattle and
sheep throughout western states to and
beyond the Missouri River. For 25 years
previously to the advance there had been
a rate on stockers and feeders of 75 per
cent of the rate on market cattle. HELD,



that from the standpoint of value of
stockers and feeders as compared with
market cattle, the character and cost of
the service of the two, the heavy claims
to which railroads are subject for shrink-
age and fall in price from delays in reach-
ing markets, the fact that carriers are
insured a second haul to market on the
fat cattle from the point where they are
fed, and the value of the service to the
shipper, the 75 per cent rate is reason-
able compared with the service and rate
on market cattle. It is not contrary to the
Commission's rulings for defendants to
make rates on the use to which cattle are
put where there is a substantial dissimi-
larity in the transportation service and
of the value of the service to the shipper.
In Re Advances on Stock Cattle and
Sheep, 23 I. C. C. 7, 12.

18. (10) Increased Divisions.

See Divisions.

(a) These proceedings involved proposed
increased class rates from St. Paul and
Duluth, Minn., to Buffalo, Pittsburgh and
other points in Central Freight Associa-
tion territory. Commodities chiefly af-
fected were butter and eggs, less than
carloads. Proposed increase of 10, 10, 10,
4, 1.5c on classes 1, 2, 3, 4, 5, respectively.
Reason assigned by defendants was that
western carriers were being deprived of
revenue on shipments to New York, on
account of billing locally to Buffalo and
reconsigning. No joint rate existed from
St. Paul to New York. Combinaticn
based on Chicago was $1.15; based on
Buffalo it was $1.12. Western carriers
made lOc more on combinations based on
Chicago than on those based on Buffalo.
Rate to Buffalo was lon^ standing.
HELD, that since the advance in the
Buffalo rate was proposed not because
the Buffalo rate was too low, but be-
cause on shipments going to New York
City and rebilled at Buffalo, the western
carriers lose revenue to which they
would be entitled were the shipments
billed through, the question was one of
divisions and not of increase of rates, and
the proposed increase was unreasonable.
In Re Advances in Class Rates, 22 I. C.
C. 338.

V. DISCRIMINATION THROUGH AD-
VANCE.

19. In General.

(a) Rates on cotton from Texas pro-
ducing points are, and for some time
have been, the same to New Orleans and



ADVANCED RATES, 19 (b) (d)



to Texas ports. Upon complaint to the
Texas commission that this traffic was
being diverted from Texas ports to New
Orleans, the Texas commission proposed
to reduce the rates to the Texas ports
if the alleged discrimination were not re-
moved. The average haul on cotton from
Texas points to Galveston is 225 miles;
to New Orleans, 488 miles. On account
of the contemplated action of the Texas
commission, the carriers filed increased
rates to New Orleans (63c), which, upon
complaint, were suspended by the Inter-
state Commerce Commission. In the
year 1910-11, under the equr lity of rates
to New Orleans and Galveston, New Or-
leans received but 150,392 bales out of a
production of 3,258,651 bales of cotton in
Texas. HELD, the rates to Texas por'i
not being alleged to be unreasonable,
defendants have sustained the burden
cast upon them by the statute, and the
proposed increased rates to New Orleans
are not unreasonable. Further, the ex-
port rates to Galveston being subject to
the federal Act it is clearly within the
right of the carriers in the absence of an
order of the Interstate Commerce Com-
mission to the contrary to continue the
present parity of export rates from Texas
points to New Orleans and Texas ports.
In Re Advances on Cotton and Cotton
Linters, 23 I. C. C. 404, 411.

(b) Under an arrangement between
defendants in force for a number of years
prior to July 31, 1899, Newport News and
Norfolk, Va., took equal freight rates to
and from common points in Associated
Railways territory and in Southeastern
Freight Association territory. Because
of a disagreement as to divisions of the
joint rates, the southern lines withdrew
from the arrangement, and since that
time Newport News rates to and from
such common points have been on a
higher basis than Norfolk rates to and
from the same points. As compared with
Norfolk, Newport News is placed in a po-
sition of material disadvantage. As to
natural advantages, Newport News and
Norfolk are practically on the same foot-
ing. The southern lines do not extend
to Newport News, but by means of their
connection with other defendant lines
they participate in Newport News traffic
to and from the south, maintain through
routes for the movement of such traffic,
and in effect control the rates applicable
thereto. HELD, that the present rate
situation is unjustly discriminr *ory
against and unduly prejudicial to New-



port News; that the southern carriers
cannot escape responsibility for such
discrimination merely because their
rails do not extend to Newport News;
that Newport News is entitled to the
same rates as Norfolk to and from com-
mon points on defendant's lines in the
territories referred to, not within 150
miles of Norfolk. Chamber of Commerce
of Newport News v. S. Ry. Co., 23 I. C.
C. 345.

(c) In a prior decision (The Okla-
homa case, 22 I. C. C. 160) the Commis-
sion approved certain mileage rates on
fresh meats and packing-house products
from Wichita, Oklahoma City and Fort
Worth, to various points, including points
in Arkansas and that part of Louisiana
west of the Mississippi River, and the
carriers proceeded to file such schedules,
but before they became effective, pack-
ing-house interests at Wichita protested,
and the schedules were suspended. It
appeared that in many cases the mileage
scale advanced the rates from Wichita,
Oklahoma City and Fort Worth to points
in Arkansas and Louisiana, and placed
such cities at substantial disadvantage
as compared with Kansas City and St.
Louis and disturbed the competitive re-
lationship existing between these various
points. HELD, that discrimination can
only be removed by applying from Kan-
sas City and St. Louis into Louisiana
and Arkansas the same mileage scale
which has been found reasonable from
Wichita, Oklahoma City and Fort Worth,
which will result in advancing the rates
from Kansas City and St. Louis to a
proper relation with those from the other
points. However, the Commission has
no authority to compel the advance of a
rate for the purpose of removing dis-
crimination, and it is therefore recom-
mended that the carriers adopt the mile-
age scale prescribed in the Oklahoma
case to points in Louisiana and Arkansas
from St. Louis, Kansas City, Wichita,
Oklahoma City and Fort Worth by proper
tariffs. In Re Transportation of Fresh
Meats, 23 I. C. C. 652, 655.

(d) Certain milling points in central
and eastern Wisconsin have been grouped
with Chicago and Milwaukee in the pro-
portional rates on grain and grain prod-
ucts from Kansas City, Omaha and Coun-
cil Bluffs. On May 15, 1911, the propor-
tional rates to these Wisconsin points
were withdrawn, which raised the rate
from Omaha and Council Bluffs from 12c
to the local rate of 15%c and to 14%c



ADVANCED RATES, 19 (dd) (e)



47



from Kansas City. The proportional
rates were cancelled because complaint
had been made that the application of a
proportional rate of 12c from the Mis-
souri 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 Chi-
cago and Milwaukee resulted to some ex-
tent from the competition of the Mem-
phis and St. Louis gateways, which did
not apply to the Wisconsin territory in
question. Chicago was not a competitor
of complainants who were millers in cen-
tral and eastern Wisconsin. While Chi-
cago and Milwaukee millers might receive
grain on the 12c proportional rate, it could
be cleaned and milled only on the basis
of the 15%c rate with the privilege of
shipping the product to points beyond
taking the same rate. Complainants ex-
pressly admitted the reasonableness of the
local rates to Wisconsin points, but com-
plained of the discrimination against them
by the lower proportional rates to Chi-
cago and Milwaukee. HELD, if the tran
sit privilege is not abused at Chicago
and Milwaukee there is no discrimination
against the Wisconsin millers 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 unreason-
able relieves defendants of the burden of
justifying them, and therefore, there be-
ing no discrimination 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.

(dd) Carriers had maintained for
nearly 30 years the same rates on cream
and condensed milk as on raw milk
from Ohio and Indiana dairy points to
Pittsburgh. They advanced the rates 50
per cent on only condensed milk and
cream on the ground that upon the aver-
age cream is five times more valuable
than whole milk, and condensed milk
three times more valuable. HELD, that
the value of an article of freight is but
one of many factors to be considered,
and especially is this true where, as in
the present case, there is no additional
cost or extra service rendered in the
transportation of the article of greater
value. The record discloses that the



claims for loss of cream and condensed
milk are practically insignificant. It
may also be suggested that regardless of
whether for transportation purposes the
classification of dairy products should
be restricted to the primary one of
whole milk and cream, the contention
strongly urged by complainants that a
correspondingly lower rate should ob-
tain on skimmed milk, buttermilk and
other dairy products of less value,
suggests the importance of proceeding
carefully in the disturbance of tlie existing
basis. The present relation of these
rates has been maintained throughout
this territory for nearly 30 years. Busi-
ness has adjusted itself accordingly and
a change therein should be sanctioned
only upon a clear showing of transporta-
tion conditions to justify it. Such evi-
dence has not been presented by this
record. In arriving at these conclusions
it is not meant that carriers may not
in any case charge higher rates upon
cream and condensed milk than upon
raw milk and other dairy products, de-
pending upon the conditions necessary
to be considered from a transportation
standpoint existing in the territory af-
fected. Whether in a given case such
difference in rate between the respective
commodities, if justified, should be as
much as 50 per cent is not now decided.
The conclusions herein are based wholly
upon the particular facts and conditions
disclosed by the present record as affect-
ing these specific rates, just as other
cases of a similar nature must be de-
cided upon their individual facts and
conditions. It is merely held that upon
the facts presented in this case the
carriers have failed to sustain the bur-
den of proof cast upo'i them by the
statute. In Re Rates on Cream and
Condensed Milk, 21 I. C. C. 522, 527,
528.

(e) Davenport is on the west bank of
the Mississippi River opposite Rock
Island and Moline. Prior to Oct. 1, 1907,
the rate on cypress lumber from Minot
and Rome, Miss., to each of these cities
was 21c per 100 Ibs. On that date the
rate to Davenport was increased to 23c,
but to Rock Island and Moline was not
advanced. HELD, that Davenport should
be grouped with Rock Island and Moline
for rate-making purposes; that the ad-
vanced rate was unlawful to the extent
that it was higher than the rate contem-
poraneously enforced from the same
points to Rock Island and Moline and



48



ADVANCED RATES, 19 (ee) 20 (d)



that reparation should be awarded
Davenport Commercial Club v. Y. & M. V
R. R. Co., 20 I. C. C. 19.

(ee) Complainant jobbers of bootfe
and shoes at Atlanta, Ga., attacked the
rail and water rates from Boston anc
New York to Atlanta, as resulting in
an adjustment unduly preferential to
Lynchburg, Va., and St. Louis, Mo. Com
plainants sold their goods to dealers in
Georgia, Florida, South Carolina, Ala
bama and Mississippi. The combination
of the rates from Boston to LyncLburp-
thence to points in said states, was less
than +hat from Boston to Atlanta, and
thence to the same points. Complainants
cor tended that tiiis gave to Lynchburg
jobbers an undue advantage. The per
ton mile earnings from Boston to At
lanta via Savannah were 28.6 mills; via
Norfolk, 19 mills; from Boston to Lynch-
burg, 18 mills. It appeared that the
Lynchburg rates were influenced by the
proximity of lines reaching Lynchburg
to eastern trunk lines which took gen-
erally lower rates than applied in the
South. The tonnage in boots and shoes
from Boston and New York to Atlanta
was very heavy and evenly distributed
throughout the year. Prior to the estab-
lishment of the rates attacked the car-
riers had voluntarily established lower
carload and any-quantity rates than
those in question. Carriers serving Chi
cago, St. Louis and other cities in that
territory competed with eastern carriers
in hauling boots and shoes to Atlanta
On account of this competition thf.
carriers finally held a series of confer
ences resulting in the establishment o'
the rates attacked. HELD, the rate o'
$1.05 from Boston and New York to At
lanta should be reduced to 95c. Kisei
Co. v. Central of Georgia Ry. Co., 17 I
C. C. 430, 441.

(f) Where an industry has been re
quired to pay for a long period of time
rates of freight on raw material which
bear certain relations to rates charged
to competitors at other points, a marked
change in such relations of rates in favor
of competing industries cannot be made
without an attendant presumption of un-
due discrimination. Detroit Chemical
Works v. N. C. Ry. Co., 13 I. C. C. 357.
362.



VI. REMEDIES AND PROCEDURE.

20. Injunctions.

See Courts, 6 (i), (j), (k), 9 (k),
(I), (n), 10 (a), 11 (y); Demur-
rage, 1 (c).

(a) Where the case in which a tem-
porary writ of injunction is asked pre-
sents questions of grave importance and
difficulty, and it appears from the plead-
ings and affidavits presented upon the
hearing for the temporary writ that great
damage will result to the complainant if
the writ is not granted and he shall be
finally successful in the litigation, and,
on the other hand, that the granting of
the writ will not cause serious damage
to the defendant as compared with the
damage which would result to the com-
plainant if the same were not granted, a
court of equity will unhesitatingly, in or-
der to maintain the present status, issue
a temporary writ of injunction. Nashville
Grain Exch. v. U. S., 191 Fed. 37, 40.

(b) Defendants filed with the Inter-
state Commerce Commission tariffs con-
taining an increase of rates a day or two
prior to a bill filed by shippers to enjoin
the putting into effect of the increase of
rates. At the time of filing the bill for
injunction the tariffs containing the in-
crease had not been posted at the sta-
tions of defendants. HELD, under Sec-
tions 9, 13, 15, 16, 22 and 23 of the Act, the
United States Circuit Court had no juris-
diction to enjoin said increase in rates.
Wickwire Steel Co. v. N. Y. C. & H. R. R.
R. Co., 181 Fed. 316, 318.

(c) The United States courts have no
original jurisdiction to enjoin the putting

nto effect of a proposed schedule of rates
alleged to be unreasonable, in advance
of a determination of that question by
the Interstate Commerce Commission,
since under the Interstate Commerce Act
as amended June 29, 1906, the question
of the unreasonableness or discrimination
of a rate is, in the first instance, vested
solely in that Commission. Columbus
fron & Steel Co. v. Kanawha & M. Ry.

^o., 178 Fed. 261, 263.

(d) In determining whether it should
emporarily enjoin a proposed increase

of interstate rates the court must take
nto account the balance of equity be-
ween the shippers and the carriers. If
he balance of detriment or inconven-
ence in the event the temporary injunc-
ion is refused is against the shippers,
hen the injunction will be granted. But,



ADVANCED RATES, 20 (e) 21 (a)



49



if on the other hand, the balance of detri-
ment or inconvenience is against the car
riers, in the event the temporary injunc-
tion should be issued, then it should be
refused. Arlington Heights Fruit Co. v.
S. P. Co., 175 Fed. 141, 142.

(e) For some years prior to 1904 a
rate of $1.00 per 100 Ibs. on lemons from
California to New York markets was
maintained as an emergency rate, and
for five years after said date by negotia-
tions between defendant carriers and
complainant shippers was maintained as
a permanent rate and plaintiffs enlarged
their orchards and their business in re-
liance upon this fact. Defendant pro-
posed to increase the rate to $1.15. There
was some evidence of an increase in the
cost of labor as applied to railroad opera-
tion, but the entire cost of transportation
had not increased. If complainants
were refused a temporary injunction,
they would have to pay an increase in
freight of about $250,000 a year, whereas
if the injunction were granted the defend-
ants would be protected by bond for the
increase in rates if the same should be
sustained by the Interstate Commerce
Commission. The increased rates threat-
ened to destroy complainant's industry
on account of competition with lemons
from Sicily, and it appeared that defend
ants were attempting to raise the rate in
order to share in the benefits of the pro
tective tariff imposed against Sicily.
HELD, complainants were entitled to a
temporary injunction pending the deci-
sion of the Interstate Commerce Commis
sion. Arlington Heights Fruit Co. v. S
P. Co., 175 Fed. 141, 143, 144.

(f) Under the Interstate Commerce
Act, as amended June 29, 1906, the court?
have no power to enjoin the filing, publi
cation or enforcement of a schedule of
rates under a bill brought prior to the
date of filing the rates of the tariffs, since
the Interstate Commerce Commission has
exclusive jurisdiction of determining
questions of reasonableness and discrimi
nation with respect to interstate rates
Columbus Iron & Steel Co. v. Kanawha
& M. Ry. Co., 171 Fed. 713, 719.

(g) Under the Interstate Commerce
Act, as amended June 29, 1906, the courts
have no jurisdiction to enjoin the filing
and posting of a rate or to enjoin the
enforcement of a rate after it has been
filed and posted, but before it has ever
been enforced. Houston Coal & Coke Co.
v. W. & W. Ry. Co., 171 Fed. 723, 724,
725.



(h) Under the Interstate Commerce
Act, as amended by the act of June 29,
1906, the courts have no jurisdiction to
entertain a suit in equity to prevent a
filing of a schedule of rates or a change
to unjust or unreasonable rates, since
said acts lodge the question of reason-
ableness of rates exclusively with
the Interstate Commerce Commission.
(Shelby, J., dissenting.) A. C. L. R. R.
Co. v. Macon Grocery Co., 166 Fed. 206,
218.

(i) Under the Interstate Commerce
Act, as amended, the courts have juris-
diction to entertain a bill in equity to
enjoin the enforcement of a threatened
ruinous schedule of interstate rates which
is proposed to be adopted in the future
without any previous action thereupon
by the Interstate Commerce Commission.
N. P. Ry. Co. v. Pacific Coast Lumber
Mfrs. Assn., 165 Fed. 1, 8.

(j) Under the Interstate Commerce
Act, as amended, the courts have no juris-
diction to enjoin the enforcement of
interstate rates after the schedule has
been filed and put into effect, since the
authority to determine the reasonablenesa
of rates is vested by the act exclusively
in the Interstate Commerce Commission.
G. N. Ry. Co. v. Kalispell Lumber Co.,
165 Fed. 25, 28.

(k) Under the Act, as amended in
1906, a United States Circuit Court may
enjoin a carrier from putting a proposed
advance into effect, and, restrain such
advance, until the Commission shall
have an opportunity to pass on the rea-
sonableness of the rates involved. Kiser
Co. v. Central of Ga. Ry. Elec., 158 Fed.
193, 198.

(1) A state equity court has no juris-
diction to enjoin the filing of a schedule
of increased interstate rates with the
Interstate Commerce Commission, as by
the Act the Commission has exclusive
original jurisdiction to determine the
reasonableness of such rates. Thacker
Coal & Coke Co. v. N. & W. Ry. Co.,
67 W. Va. 448, 454, 68 S. E. 107.

21. Investigation.

(a) Where the advance of an individ-
ual rate has been attacked in a general
inquiry before the Commission, it is not
necessary or proper to inquire into it,
pending the general investigation. Hy-
draulic Press Brick Co. v. Vandalia R. R.
Co., 15 I. C. C. 175, 176.