ent deliveries might be greatly damaged. It does not appear, and there are no means of determining, which alternative the defendant would adopt if put to the choice, and we should hesitate, under those circumstances, to make an order which might result, not in advantage to live stock shippers, but in detriment to all shippers of dead freight. What is here said applies only to a prejudice or disadvantage growing out of discrimination between commodities. Traffic may perhaps be subjected to undue disadvantage under the third section by imposing upon it unjust burdens or refusing to it privileges to which it is lawfully entitled.

IV.

The complainant insists that the provisions of the Kentucky Constitution, set forth in the findings of fact, were adopted in aid of interstate commerce, and should be so treated in disposing of this case. Without attempting to determine whether these provisions, if enforced as to the traffic under consideration, are sufficient to compel the defendant to make deliveries as requested, and without inquiring whether the State of Kentucky can regulate the switching of this interstate traffic, we are of the opinion that this Commission has no jurisdiction to enforce those provisions. We deal entirely with the Act to regulate commerce, and have no authority beyond that conferred by the terms of such Act.

About the time of the filing of the petition in this case the Central Stock Yards Company began suit in the Federal Court with a view to accomplishing the same purpose aimed at in this proceeding. That case, at the time of the submission of this one to the Commission, had been decided against the plaintiff; Central Stock Yards Co. v. Louisville & N. R. Co. 112 Fed. 823, and an appeal was pending before the Circuit Court of Appeals. This opinion was prepared soon after the submission of the case but has been held at the request of the petitioner to await the final disposition of the above suit in the courts in the view that the conclusions there reached might indicate some ground on which the Commission could act. That case has recently, February 23, 1904, been decided by the Supreme Court of the

United States upon appeal from the decision of the Circuit Court of Appeals. So far as we can see, neither the opinion of the Circuit Court of Appeals, nor that of the Supreme Court, warrants a different result from that arrived at by us; indeed, those opinions appear to be direct authority for the conclusions reached by the Commission. Central Stock Yards Co. v. Louisville & N. R. Co. 55 C. C. A. 63, 118 Fed. 113; Adv. S. U. S. 1904, p. 339, 24 Sup. Ct. Rep. 339.

The petition must therefore be dismissed.

10 I. C. C. REP.

No. 681.

THE CENTRAL YELLOW PINE ASSOCIATION

v.

THE VICKSBURG, SHREVEPORT & PACIFIC RAILROAD COMPANY et al.

Decided March 19, 1904.

1. The third section of the Act to regulate commerce, which prohibits undue preference between individuals or localities, is not violated by defendants in the granting of divisions in rates to lumber mills owning or controlling short originating roads called "tap lines," while other carriers fail or refuse to allow like concessions to members of the complaining Association located in a different section of country.

2. The second section of the Act to regulate commerce, which prohibits a rebate or other concession in rate whereby one shipper is preferred to another, refers to a like and contemporaneous service performed under similar circumstances and conditions, and it is not shown in this case that lumber mills served by defendants are so located that differences in divisions allowed by defendants to tap lines used for such mills, or the failure of one of the defendants to allow any division to some mills, violates this section.

3. Whether divisions or allowances from published tariff rates made by defendants to tap lines owned or controlled by lumber mills constitute departures from such published rates in violation of the Act to regulate commerce or of that Act as amended February 19, 1903, is the question herein presented, and while complainant has no direct interest in the determination of that question it has such an indirect interest as entitles it under the statute to maintain this proceeding.

4. Defendants publish a certain rate on lumber from stations upon their lines which must be strictly observed and charged to all shippers alike, and they are not entitled, under the Act to regulate commerce, to grant a division of the rate to the owner of a lumber mill as compensation to him for the cost of bringing his logs to the mill by steam railroad, horse railroad, wagon, or any other means of conveyance.

5. Under the Act to regulate commerce a common carrier subject to its provisions can allow a division of rates only to another common carrier which, participating in the particular traffic to which the rate is applied, is also subject to the Act to regulate commerce. The two lines

may by contract or agreement establish a joint rate from the point of origin on the one road to the point of destination on the other and agree between themselves as to divisions of the rate.

6. The transportation of the log to the mill by one line and the transportation of the lumber from the mill by another line may, under the circumstances of this case, be treated as in the nature of a through shipment from the point where the log is received to the point where the lumber is finally delivered, and the carrier of the lumber may by joint arrangement with the log carrier make such allowance towards the cost of moving the log as would be fairly involved in moving the lumber from the point where the log is received for carriage, provided always that the carrier of the log is a common carrier by rail; but this holding extends the application of the principle of milling in transit to the extreme limit.

7. Treating the transportation first of the log and then of the lumber as a through shipment involves the right to mill in transit, and when that privilege is granted the tariff should show upon its face that the transportation covers carriage of the log to and the lumber from the mill, and the division allowed to the "tap line," or carrier of the log should be named in all cases.

T. E. Miller and Green & Green for complainant.

S. H. West for St. Louis Southwestern Railway Company. Martin L. Clardy for St. Louis, Iron Mountain & Southern Railway Company.

S. W. Moore for Kansas City Southern Railway Company. H. H. Hall for Vicksburg, Shreveport & Pacific Railroad Company.

REPORT AND OPINION OF THE COMMISSION.

PROUTY, Commissioner:

The complainant is a voluntary association composed of individuals, firms and corporations engaged in manufacturing and handling yellow pine lumber in Mississippi and Alabama. It is said to represent about one-half the entire output of those states, and it was organized for the purpose of correcting unreasonable and discriminating freight rates.

The complaint was originally brought against the Vicksburg, Shreveport & Pacific Railroad Company, the St. Louis Southwestern Railway Company, the St. Louis, Iron Mountain &

Southern Railway Company and the Kansas City Southern Railway Company. After testimony had been taken and before the final submission of the case, the complaint was, at the request of the complainant, dismissed as to the Vicksburg, Shreveport & Pacific Company, leaving the last three railways above named as defendants.

Large quantities of yellow pine lumber are manufactured in the states of Arkansas, Louisiana and Texas. This lumber is similar to that produced in Mississippi and Alabama and competes with it in northern markets. The territory mainly referred to in this proceeding is what is known as Central Freight Association territory, being, roughly speaking, the section lying north of the Ohio River and between the Mississippi upon the west and a line running through Buffalo and Pittsburg upon the east. As we learn from the testimony in this case, and also from that taken in other cases recently heard by the Commission, rates from both sides of the Mississippi River into this territory upon yellow pine lumber are the same. This relation was established after much competition and long controversy, for the purpose of admitting lumber from both sections upon terms of equality. Rates from all this southern territory into Central Freight Association territory are constructed upon the blanket system, being the same from all points of production to any given destination.

The method of manufacturing and marketing this lumber is essentially identical in all parts of the south. Mills are at first constructed upon the lines of railway traversing that territory and the logs are hauled into these mills from the forests. As the timber is cut off, however, and the haul becomes longer, it is necessary to provide some other means for bringing the logs to the mill. If the mill happens to be situated upon a stream they are sometimes floated down, but ordinarily a railroad is built into the timber and the logs are transported by this means. These logging roads are usually of the standard gauge, although not invariably, and are constructed and operated as are the main line railroads of this country, the power being furnished by locomotives and the logs loaded upon flat cars. In process of time the logging road increases in length until it frequently reaches