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fruits and vegetables, having his principal office and place of business in Chicago, Illinois; that this proceeding is instituted in behalf of complainant and other shippers of fruit, vegetables and other products from points in Michigan and other places on defendants' lines, and localities where such shipments originate; that defendants are common carriers by railroad, subject to the Act to regulate commerce, engaged in transportation between interstate points, and particularly between Bravo, Pearl, Fennville, Harbert, Sawyer, Livingston, Bridgeman, Stevensville, and other points in Michigan and Chicago, Illinois; that overcharges were made in six instances on shipments of fruit over defendants' lines from Bravo, Pearle and Fennville, Michigan, to complainant at Chicago, during the months of August and September, 1902; that similar discriminations in rates charged complainant and other persons have been made by defendants on shipments from points in Michigan to Chicago during the six years previous to the filing of this complaint; that it is the duty of defendants to unload said shipments at Chicago at their own expense; that this is done for certain consignees, but that during said six years defendants have refused and still refuse to do so for complainant and certain other consignees, by reason of which they are subjected to unreasonable discrimination, prejudice and disadvantage, and other parties are given undue and unreasonable preference and advantage; that defendants during said period have exacted of complainant a higher rate for shipments made from Harbert, Michigan, to Chicago than from Livingston, Sawyer and other points in Michigan to the same destination, in violation of the Act to regulate commerce, thereby subjecting the locality of Harbert and persons shipping from there to undue prejudice and disadvantage; that the published schedules of defendants applying to the transportation of fruit and vegetables do not plainly show charges therefor, or the terminal charges, or the rules and regulations affecting such transportation, in consequence whereof section 6 of the Act is violated; that defendants wholly disregard the published rules of the official classification by which such transportation is governed; that defendants do not deal directly with complainant
and shippers of fruit o.er defendants' lines, but delegate or have delegated their duties respecting consignments to a certain person who acts as a middleman between defendants and consignees, by means of which the duties and obligations of defendants are concealed from consignees; that such person acting under such agency has collected a greater charge upon such shipments than the published rates; and that the defendant, the Pere Marquette Railroad Company, issued to its local agents in Michigan a circular requiring them to refuse to receive property for shipment to Milwaukee, Wisconsin, in other than carloads, unless consigned for distribution to a consignee or consignees designated and named by said defendant, said circular being contrary to the published rules and tariffs of said defendant and in violation of the provisions of said section 6.
Complainant asks for an order requiring defendants to desist from the alleged violations of law and pay complainant such damages as the Commission may find him entitled to recover, and for such other order or orders as may be deemed necessary in the premises.
The answer of the Pere Marquette Railroad Company denies any violation of law and states that the unloading of shipments at Chicago and the collection of charges thereon were wholly under the supervision of the Michigan Central Railroad Company, its connecting carrier.
The answer of the Michigan Central Railroad Company denies any
violation of law, denies the allegations of overcharge made by defendant, and avers that no claim for said overcharges has ever been presented to defendant for settlement.
The answer states that prior to June 13, 1900, defendants' joint tariffs from stations in the Grand Rapids district (Michigan) showed a rate for carloads and less than carloads; that the carload rate was less than the less than carload rate; that shippers of fruit and vegetables were allowed to consolidate their shipments and consign an entire carload in each instance to one consignee at the carload rate; that during said time complainant, designating himself as “General consignee of Granger Cars," aided organizing fruit and vegetable growers into shipping associations and consolidating small shipments into
carloads for shipment at carload rates and consignment to himself at Chicago, which he would unload and distribute to the various receivers and for which he charged the shippers association, $5.00 per car for unloading, a compensation for delivery, and a portion of the difference between the carload rates and the less than carload rates; that on the 13th of June, 1900, a tariff adopted by defendants' roads became effective providing a rate per package for any quantity less than a carload for shipments of fruit and vegetables from certain Michigan territory to Chicago, substantially the same as the former charge per package in carload lots, which tariff or amendments thereto and similar tariffs have continued in force up to the time of filing complaint; that under said package tariff defendants issued separate bills of lading for each shipment, checking out each consignment and unloading all less than carload lots at destination at defendants' cost; that defendants entered into an agreement with one N. K. Goodrich, August 9, 1900, to perform the duty of unloading this traffic for which a special platform was constructed; that the said Goodrich unloaded such shipments, distributed the same to the receivers, collected the freight charges, and paid the same to defendants; and that said contract continued in force until about January 21, 1903, when the same was rescinded.
The complaint and both answers were duly verified.
On the hearing of the complaint, November 9, 1903, before commencement of the investigation or the taking of any testimony, complainant voluntarily struck out of his complaint all claim for damages or reparation, and stated that the purpose of complainant was to present to the Commission evidence of criminal violation of the law and ask the Commission to take such steps under the law as are necessary to punish these railroads for those acts of criminal violation."
The question of whether the rates complained of were reasonable or unreasonable was not investigated, the Commission holding that the complaint did not allege unreasonableness, and, therefore, the defendants could not be required to meet such an allegation without due notice and opportunity given to prepare their defence.
The following instances of alleged violation of law were specially urged by complainant and relied upon in support of the request for prosecution:
(1) Overcharge on a shipment from Bravo, Mich., August 17, 1902, described in the waybill as "fruit,” but having a memorandum attached showing the consignment to consist of baskets of peaches and plums from six different shippers consigned to complainant, and charged a rate of 471/2c. per hundred pounds.
(2) Overcharge on a shipment from Pearl, Mich., August 19, 1902, of 14 baskets of "peaches,” and charged a rate of 471/2c. per hundred pounds.
(3) Overcharge on a shipment, August 14, 1902, from Bravo, Mich., composed of the following articles: 30 bbls. apples, 39 bus. boxes apples, 81 half-bus. crates plums, 534 fifth-bus. baskets peaches; which were charged the carload rate of $40.00.
(4, 5 & 6) Three instances of overcharge on shipments from Fennville, Mich.: August 28, 1902, 41 bbls. apples; August 29, 1902, 44 bbls. apples; September 3, 1902, 49 bbls. apples; all billed as "peaches,” for which there was charged a rate of 30c. per bbl.
(7) The rate of 2c. per hundred pounds in excess of the published rate exacted for shipments of fruit from Harbert, Mich.
(8) That the contract made with Goodrich was unlawful and unjustly discriminatory against complainant and other consignees and shippers.
In the first three items of overcharge complained of the waybills did not show in what kind of baskets the peaches were shipped. Under the classification peaches in wooden-top baskets are first class, and in other baskets 11/2 first class. These shipments were unloaded and delivered by complainant as consignee without defendants' agent having any actual knowledge of the contents, and the rate clerk, failing to learn, on inquiry made of complainant, what kind of baskets they were, charged the shipment at 112 first class in the expense bill.
In the other three cases of overcharge complained of the ship
ments were apples, but the waybills showed them to be shipments of barrels of peaches. These also, it seems, were unloaded and delivered by complainant. No information appearing in regard to the character of the shipments except that contained in the waybills, they were charged the rate on peaches of 30c. per bbl., instead of the rate on apples of 17c.
The evidence shows that Harbert is only a shipping point during the fruit season, and so used for the convenience of shippers living near that station. Consent was first given by the Railroad Company that a lady running a grocery store there might sell passenger tickets, and, later, consent was given for the shipment of fruit during the fruit season. On account of the accommodation afforded the shippers in that locality in shipping from Harbert rather than from the regular stations farther away, an arrangement was made between the husband of the lady and the local shippers for the payment of the additional rate complained of. This rate appeared in the billing and was paid by the agent to the producers. It only continued during the season of 1902 and did not come to the knowledge of the railroad management until afterwards.
It does not appear that complainant was the owner of any of the above shipments on which he claimed overcharges, and it is significant that no claim is shown to have been ever presented to defendants by either shippers or receivers on account of the overcharges.
The package tariff referred to was established from Benton Harbor and points south to meet competition of boats from St. Joseph, Mich., to Chicago in connection with drays and wagons going through that territory and picking up freight in the interest of the boat line from St. Joseph.
The contract with Goodrich provided for the unloading of fruit from certain Michigan territory at the fruit platform in Chicago, without expense to either shippers, consignees, or receivers, for which service Goodrich received a stipulated, and what appears to have been a reasonable compensation; he also distributed the fruit to the receivers or consignees, collected the charges for transportation and paid them over to the railroad