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referred to on the schedule of rates, but was contained in a separately issued circular.
On a carload of 28,045 pounds of corn shipped from Camargo, Ill., to Indianapolis the charge for transportation was $22.40, though at the 7-cent rate in force and actual weight the charge should not have exceeded $19.63. And on a carload of 31,500 pounds of corn from Lintner, Ill., to Cincinnati the total charge exacted was $42.05, though at the tariff rate of 10 cents in force it should have been only $31.50. The higher charges made on these two shipments were based on other circulars issued separately from the tariff sheet and providing for a minimum carload weight of 4,000 pounds in one circular and 2,000 pounds in the other circular less than the marked capacity of the car, but not less than 28,000 pounds. The Camargo carload of 28,045 pounds was loaded in a car marked to carry 36,000 pounds, and the circular made the minimum weight 32,000 pounds instead of the actual weight stated. The Lintner shipment of 31,500 pounds was transportation in a car having a marked capacity of 50,000 pounds, and the circular applied on that shipment made the minimum weight 48,000 pounds, instead of the 31,500 pounds actual weight. Neither of these régulations was shown or referred to in the schedule of rates.
It was clear that the regulations changed, affected, or determined the charge, and under the requirements of the sixth section that every such regulation must be stated in the schedules of rates and charges, and that changes which advance or reduce the charge must be shown by printing new schedules or by plainly indicating such changes upon the existing rate sheet, it was held that the regulations were not in lawful effect, and had therefore been wrongfully enforced upon complainant's shipments. In fact, the rate slects fixed a minimum of 28,000 pounds for cars generally, and no maximum, and the separately issued circulars containing the other minimum and maximum carload regulations were in conflict with the tariffs. Upon this branch of the case the Commission held that, under the law, complainant only had to consult the schedule showing defendant's rates and charges, and it was not bound to hunt through the carrier's posted files at the shipping stations for rules or regulations affecting or determining the transportation charges which were not stated or plainly indicated on the rate sheet itself.
In this connection the Commission called attention to the fact that shippers are bound by the rates specified in published tariffs as follows:
Profits of shippers or consignees are diminished by ultimately charging, under an involved set of rato schedules or according to some separate circular, a higher rate than was thought to be in effect at the place of shipment, and commercial transactions may, through such increaso, even result in actual loss to one of the parties; the consignee may have resold tho freight before receiving it, relying upon the terms of his own purchase, including the stated cost of transportation. Nevertheless, under tho law as construed by the United States Supreme Court in Gulf, C. & S. F. R. Co. v. Hesley (158 U.S., 98; 39 L. ed., 910), carriers are not only entitled to exact their proper established rates, but they are bound to do so, and a lower rate stated in the bill of lading issued by the carrier to the shipper will not be enforced. Shippers and consignees can not, thereforo, depend for the lawful rate or charge upon what may be quoted by the carrier's agent, but they must be guided by the published rate sheets themselves. Such interpretation of the law emphasizes the legal duty of the carriers to make their schedules of rates comply precisely with the mandatory provisions in the statuto concerning the contents and publication of such schedules in order that shippers may, upon inspection, be enabled to readily and accurately determino what rates, and what transportation rules affecting rates, are actually in force for any particular service.
While a supplement or amendment making slight changes in a tariff showing numerous rates has been regarded as substantial compliance with the statute, we have in this and other cases held that a considerable number of supplements or amendments to a rate sheet results in uncertainty and confusion, and is not in conformity with the law.
LEGALITY OF MAXIMUM AND MINIMUM CARLOAD WEIGHTS WHICH VARY ACCORDING
TO CAPACITY OF CARS.
But this case involved a further question as to the legality of the regulations themselves. Besides the maximum-weight rule, it appeared that the carriers had in force at the time of the decision four different minimum carload weights for corn: The capacity of the car on shipments to Indianapolis; 4,000 pounds less than car capacity on shipments to Cincinnati and other points; the capacity of the car ordered when such order can not be complied with, but this only on application to the superintendent, thus entailing more or less delay and at times loss to shippers; a general minimum of 28,000 pounds. The first three minimums were based upon dimensions of the carrier's cars; the last only was based upon the traffic, the way it is handled at stations, and the recognized course of commercial dealing. To Cincinnati and other points the carrier maintained only a single standard of 28,000 pounds for grain products, and the carload minimum fixed for nonexcepted articles in the freight classification used by the carrier was 24,000 pounds.
Other roads in the same section did not enforce minimum weights depending on the car capacity. While 4,000 pounds below the marked capacity and not less than 28,000 pounds might be reasonable for cars having the least capacity, such a minimum weight for a car of 50,000 pounds, when the shipper finds himself only able to load 30,000 and 40,000 pounds, becomes onerous and oppressive. We held that a maximum-weight rule of 4,000 pounds above the marked capacity, with reasonable increase of rate for overloading, is a proper provision against danger to life and destruction of property and works no serious hardship upon shippers, provided the minimum weight prescribed by the carrier is sufficiently below the marked capacity; that minimum car. load weights which differ with the size of cars furnished by the carrier and whereby the minimum for one car may be 28,000 pounds while the least load for another car may be considerably more, and even as high as 56,000 pounds, are unjust and burdensome upon shippers and the traffic in grain over defendant's road; and that schedules plainly show.
ing, not only the rates, but any regulations of the carrier prescribing the maximum carload weight and a fixed and reasonable minimum weight for grain in carloads, must be published and kept open by the carrier at its several stations for convenient public inspection, so that patrons of the railway may determine for themselves, as the law leaves them to do, what transportion charges can lawfully be demanded of them for the carriage of their products.
Order was accordingly entered and the carrier was also required to refund the excess charges on the shipments mentioned. The carrier filed new tariffs showing its amended regulations, tbe money reparation ordered was paid, and no further complaint has been received.
TARIFF RATES OVER CONNECTING LINES.
The receivers of the New York and New England Railroad, a line running from Newburg, N. Y., into Connecticut and connecting in that State at several junction points with the New York, New Haven and Hartford Railroad, issued a sheet purporting to be a joint tariff of rates on coal from Newburg via such junctions to various points on the line of the New Haven Company. Complaint was made by the New Haven Company that the so-called joint tariff was not a lawful schedule, for the reasons that such tariff had never been agreed to by it; that no rate on coal from Newburg by the New England road had been authorized by it other than the local rates of the two roads to and from the points of junction, and that in the so-called joint tariff the New England Company charged for the haul on its road from Newburg to the points of connection less-than its local tariff rates from Newburg to such points of connection. There was nothing on the tariff showing any participation by the New Haven Company, except the use of the word "joint,” in connection with through rates named to points on the complaining line. The through rates named in this tariff were, as alleged, less than the sum of the local rates of the two roads; the complainant was paid in every case the full local rate from the point of junction to the place of destination, and it followed that the New England Company was accepting on this traffic less than its own established local charge from Newburg to the point of connection.
The amount so accepted by the New England Company varied according to the destination of the shipment. Thus, its charge from Newburg to Waterbury was 85 cents on coal destined to Union City and 67 cents on coal to be delivered at Beacon Falls, while its local rate from Newburg to Waterbury was $1.20. The complainant carried coal to the same destinations which it received from connecting carriers at the city of New York, and on such coal the complainant secured a much longer haul over its own rails and consequently much greater compensation than it obtained when coal reached the same places via Newburg and delivered to it by the New England road.
The case presented the general question whether a carrier can add
to the local rates of a connecting company an amount different from its own established local charge and publish the same as a through rate lawfully in effect from a point on its road to a point on the connecting road against the objection and protest of the other carrier. The Com. mission held that such action is unlawful. The tariff involved was not a joint tariff, for the word joint implies agreement or mutual consent, and as referred to in the act the joint tariff over continuous lines or routes operated by more than one carrier is a tariff which the several carriers” operating such a line or route establish. These terms import concurrence and assent in fixing aggregate rates for a combined service as distinct from the separate rates of a single carrier for transportation "upon its route." Nor did the tariff show the individual rates of the New England Company for transportation upon its railroad.” It only named aggregate rates over the two roads. The rate sheet was neither an individual schedule nor a joint tariff, and these are the only schedules provided for in the statute.
But it was argued that while the act only provides for two kinds of rates, it does not expressly prohibit the method of rate making followed by the New England Company, and that as that method was alleged to operate to public advantage, it ought to be sanctioned by the Commission. It seemed to us that the practice is forbidden by necessary implication from provisions in the statute. The first paragraphs of section 6 apply exclusively to rates which each carrier has established for transportation "upon its route," and require it to print and publish schedules of such rates, and the fourth paragraph makes it unlawful for the carrier to charge a greater or less sum for its services than is specified in its published schedule. This broad and unqualified provision constitutes the general rule of the statute. The subsequent paragraphs, so far as material to the question involved in the case, “merely qualify the rule in one respect and are in the nature of an exception to its plain and positive requirements.” That exception “sanctions a recognized and definite class of through rates, namely, those resulting from the concurrent action of two or more carriers, but it furnishes no warrant for another and different class of rates not covered by its terms or included within its obvious purpose.” As the exception confers no authority for the method of rate making complained of, we held that the practice must be deemed unlawful under the prohibition of the general rule.
The New England Company asserted that it merely followed a custom which has been universal among the railroads of the country. published tariffs in many cases sustain defendant's theory is not denied, but in most of those cases we think it will be found that the through rates themselves, whether lawfully established or otherwise, are in fact agreed to by all the participating carriers. In nearly every instance they are applied by virtue of open consent, long acquiescence, previous course of business, or other circumstances which imply agreement.”
The precise point here was that the complaining carrier refused to unite in through rates less than a combination of locals, and protested against the use of such rates by a connecting carrier as unauthorized and unlawful for want of mutual consent. The decision also distinctly recognized the right of a carrier, in the absence of joint rates, to combine its own lawfully established rates with those of a connecting carrier, and thus announce the aggregate amount for which traffic will be carried from points on its road to points on the line of such connecting carrier.
PURCHASE AND SALE OF GRAIN BY A CARRIER TO HOLD THE TRANSPORTATION OVER
ITS OWN LINE.
Our last annual report, beginning with page 75, contains an extended account of an investigation of grain rates from Missouri River points to points on and east of the Mississippi River, and the testimony taken during that investigation was subsequently printed by direction of the Senate. As stated in that report, and also set forth in an opinion of the Commission rendered in January last, the testimony disclosed that the Chicago Great Western Railway Company owned the entire stock of a corporation known as the Iowa Development Company, which had been organized for the purpose of holding the title to certain lands of the railway company; that the railway company caused grain to be purchased in the name of the development company, which it then transported over its line to Chicago, where it was sold upon the market; that the development company bad no bona fide interest in the transaction; that, in fact, neither the development company nor the railway company purchased the grain for the purposes of owner. ship, and the whole transaction was prompted solely by the desire of the railway company to secure the transportation of the grain over its own line at other than the published rate; that the only transportation rate paid was the profit resulting from the purchase and sale of the grain, and this varied with each shipment. The result was, that although there were five other railway lines directly competing for this traffic between Kansas City and Chicago, many of them shorter and better equipped than the Great Western, that company carried for the period covered by this investigation nearly 70 per cent of all the corn moved between those points.
The rate actually received by the railway company was much less than was or would liave been charged any other person for the same service under the same conditions. The transaction was clearly a departure from published rates, which is prohibited by the sixth section, and an unjust discrimination under the second and third sections, unless the railway company, by virtue of the fact that it owned the merchandise transported, was relieved from the operation of the act. We held that it was not. Granting that the railway company had the legal right under its charter to buy and sell its corn in this manner, still it must own it and transport it subject to the same limitations as