States, competition that affects rates should be considered, and in deciding whether rates and charges made at a low rate to secure foreign freights which would otherwise go by other competitive routes are or are not undue and unjust, the fair interests of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered: That if the Commission, instead of confining its action to redressing, on complaint made by some particular person, firm, corporation or locality, some specific disregard by common carriers of provisions of the act, proposes to promulgate general orders, which thereby become rules of action to the carrying companies, the spirit and letter of the act require that such orders should have in view the purpose of promoting and facilitating commerce, and the welfare of all to be affected, as well the carriers as the traders and consumers of the country.

While there is considerable dispute as to the full and exact scope of this decision of the Supreme Court, and therefore some doubt as to its effect in the final adjudication of some of the questions referred to in the opinion therein, no room is left for doubt concerning one of the fundamental questions involved in the cases now before us. It is clear that in considering the question of alleged unjust discrimination in favor of shippers of import glass moving from the ports of entry in this and adjacent foreign countries to interior American destinations, and against domestic shipments of glass 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. In other words, "whatever would be regarded by common carriers, apart from the operation of the statute, as matters which warranted differences in charges" ought to be considered in forming a judgment, whether such differences were or were not unjust, and the circumstance of competition by ocean carriers at the different ports is a fact meriting consideration by the Commission in passing upon the reasonableness of an inland rate applicable from the seaboard on domestic traffic when the reasonableness of such rate is called in question by comparison with a lower rate applying from the port of entry on traffic shipped from a foreign country.

Not all discriminations are unlawful, but only such as are undue or unreasonable; if based on reason and good cause, discriminations can not be condemned as unreasonable. 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 involved in the ultimate question of fact under sections 3 and 4, and as to whether the discrimination complained of and shown is or is not undue or unreasonable. Since, in view of these rulings, it is the duty of the Commission in passing upon these questions to look to

these and other facts, wherever found, pertaining to the traffic involved, upon the theory that the carriers may lawfully within reason meet the circumstances and conditions which confront them, it follows that we must recognize the due and logical effect of the situation thus presented. The necessary conclusion is that 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.

There is a long line of decisions of the court to the effect that 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.

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 port of 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 that of the transportation independent and complete within itself of traffic starting at such domestic port, though bound for the same destination.

It is true the court held in the case of Wight v. United States, 167 U. S., 512, that the existence of competition did not create "dissimilar circumstances and conditions" such as to justify discrimination as defined in the second section. But this referred to unjust discrimination as between different shippers over the same line in the performance of a "like service," and as we have seen, the transportation of import traffic from the port of entry to an interior destination in completion of a through movement from a point in a foreign country is not a like service to that involved in the transportation of domestic traffic originating at such port, even where the transportation in all other respects is performed under like conditions.

It follows that the charge of unjust discrimination in violation of section 2 of the act is not sustained.

Neither does it appear from the facts that any of the defendants have made rates for import glass which result in a loss to them or which are not remunerative in some measure, or that such rates have in any case been made lower than compelled by the force of competition.

While the complaints contain the general charge that the rates on domestic shipments of glass are unreasonable and unjust, and therefore violative of section 1 of the act, the evidence upon this point was not convincing, the complainant relying chiefly upon a

comparison with the rates on imports, and these in many instances apply on shipments moving in the opposite direction, because the domestic shipments are almost uniformly from interior manufacturing points, whereas the import shipments are from the ports to interior destinations. The cases have been presented mainly with reference to the allegation of unjust discrimination.

Respecting the comparison of domestic and import rates on plate glass via the Illinois Central from New Orleans to Chicago and other interior points where the disparity is very marked, it was urged by that company that its domestic rates from New Orleans were only "paper" rates, there being no shipments moving from New Orleans other than imports, and that if domestic shipments should be offered from New Orleans, or if business could be built up by the making of lower rates, that road would be ready to consider favorably the establishment of the same on domestic shipments. In addition to the competitive necessity for the establishment of these lower import rates, it was also urged that these rates were made remunerative partly by reason of the fact that there was a large preponderance of empty car movement from the port over that to the port of New Orleans.

There is an available all-water route by way of Montreal to Chicago and other interior lake points. Although it does not appear that any considerable amount of this traffic is moved that way and it does appear that rail transportation is preferred to that by water for the reasons before stated, it is probable that any considerable increase of the total charges applying through American ports would have the effect of deflecting this traffic from such ports. To make the total through charge from the 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 to conform to in view of that uncertain and flexible element involved in the ascertainment of the total through charges, to wit, the rates to the ports.

While the Commission finds no basis in the record before it for condemning any of the domestic rates involved as being unreasonably high, it does not desire to be understood as holding that they are reasonable and just. As before stated, the matter has been presented in the main as one of unjust discrimination, and we can only deal with it here as involving that question.

What the complainant asks is that either the domestic rate be lessened, or that the inland proportion of the import rate be increased, or that both be put in the same class, or that any other equitable

adjustment that will not give the foreign glass cheaper transportation than the domestic shall be made.

Respecting the suggestion in the prior case that the application of lower rates on import than on domestic shipments tended to render nugatory the protection to American manufacturers and producers intended by the tariff duties, the court in Texas and Pacific Railway Company v. Interstate Commerce Commission, supra, said:

Our reading of the act does not disclose any purpose or intention, on the part of Congress, to thereby reinforce the provisions of the tariff laws. These laws differ wholly in their objects from the law to regulate commerce. Their main purpose is

to collect revenues with which to meet the expenditures of the Government, and those of their provisions, whereby Congress seeks to so adjust rates as to protect American manufacturers and producers from competition by foreign low-priced labor, operate equally in all parts of the country.

Bound as we are to consider the more intense competition to which the transportation of imports 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 rates from the foreign point of origin with the rates applying on domestic plate glass in this country, condemn the latter as unreasonable or unjustly discriminatory. The complaints will therefore be dismissed without prejudice.

13 I. C. C. Rep.

No. 988.

D. J. EDDLEMAN, FOR HIMSELF AND OTHER RESIDENTS OF THE TOWN OF ELDER, IND. T., AND VICINITY,

v.

MIDLAND VALLEY RAILROAD COMPANY.

Submitted December 14, 1907. Decided January 13, 1908.

1. Petition of complainants asking for an order requiring defendant to reestablish its station at Elder, Okla. (formerly Indian Territory), denied, because the interest of the general public does not require it and such reestablishment would be an unnecessary burden upon defendant.

2. If complainants had a contract with defendant to locate and maintain its station at Elder, they may perhaps maintain a suit at law for breach of that contract; but this Commission has no power to award damages for failure to perform such a contract.

Baker & Pursel for complainants.

J. W. McLoud and Ira D. Oglesby for defendant.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The complainants ask the Commission to order the defendant to reestablish its station at Elder, the same having been removed in December, 1906.

The Midland Valley Railroad extends from Hoye, in the State of Arkansas, to Arkansas City, Kans. The construction of that portion of it between Fort Smith and Arkansas City was begun in the fall of 1903 and completed in the spring of 1906. Haskell and Bixby, formerly in Indian Territory, now in Oklahoma, are two stations upon the line of this road, 16 miles apart, Haskell being the more easterly of the two. This portion of the road was constructed during the summer of 1905 and at that time the company established a passing switch and station at Elder, which is 9 miles from Haskell and 7 miles from Bixby. The company later became convinced that two 13 I. C. C. Rep.