not operated by the Colorado Company, but that this company did handle the product of those mines. It also appeared that when other individuals endeavored to take these contracts in competition with the Colorado Fuel and Iron Company they were compelled to pay the published rate and therefore were unable to furnish the coal. Under this arrangement the Santa Fe Company and the Colorado Fuel and Iron Company virtually entered into a partnership in the handling of this coal, in the execution of which the published schedules of the Santa Fe were utterly disregarded. Those tariffs from the Trinidad district merely served as scarecrows to keep off all competitors and, further, as a pretext for declining to reduce rates from other coal fields upon the ground that there ought to be some relation between different districts. The act to regulate commerce requires that tariffs shall be in all cases published and observed. The purpose of this requirement is to inform the public of the rates under which the service of transportation can be secured. It is made a crime to depart from those provisions for the reason that otherwise a railway may drive out of business every competitor and then insist that there has been no discrimination, since there are no other shippers. It has been intimated in some quarters that the Santa Fe, in the payment of these rebates, squandered its revenues in the interest of the fuel company. That phase of the subject was not under investigation, but nothing appears in this record to justify that suggestion. Mr. Biddle testified that these unlawful practices were entered upon for "business reasons," and we see no reason to doubt that they were prosecuted by the Santa Fe Company upon that basis. The Santa Fe and the Colorado Fuel and Iron Company, as already suggested, were virtually partners in this coal business. As partners they probably obtained the best price possible for coal at the various points of delivery, and apparently the division of the price obtained was not unduly in favor of the fuel company. The largest contract, that for five years with Phelps, Dodge & Co., contemplated the delivery f. o. b. Deming at $4.05 per ton, of which the fuel company obtained $1.15, which can hardly be considered an extravagant price for its coal. The Santa Fe Company was asked to furnish a statement showing the quantity of coal handled for the last year through Deming upon these tariffs under which it refunded $1.15 to the fuel company, but that statement has not yet been received. 5. The testimony also tended to show that while the Colorado Fuel and Iron Company was operating the mines of the American Fuel Company at Gallup the Santa Fe gave that company a special rate on its supplies. While this testimony was not at all conclusive, it was of a character to require explanation from persons having absolute knowledge in the premises. Mr. Biddle testified, in answer to an inquiry from the Commission on that subject, that so far as he knew these rebates on supplies had not been granted, but that this might have happened without his knowledge. No witness having knowledge was produced, and we have a strong impression that such special rates were enjoyed by the Colorado Fuel and Iron Company. CONCLUSIONS. The act to regulate commerce requires carriers to publish and adhere to their tariffs. The Atchison, Topeka and Santa Fe Railway Company has for the last five years wilfully and continuously violated this provision of the law in the respects above stated. February 19, 1903, the so-called Elkins bill was enacted, providing that carriers should in no case transport traffic until a tariff had been published, and that the published tariff should be observed, and providing a penalty of not less than $1,000 nor more than $20,000 for each offense. The provisions of this statute extend both to the railway company which grants and the party which receives the concession. Both the Santa Fe. and the Colorado Fuel and Iron Company systematically and continuously violated the provisions of that act in the particulars mentioned from the day of its passage down to November 27, 1904, when the tariffs under which this coal moved were reduced in all cases $1.15. It would seem that the El Paso and Southwestern Railroad was also in violation of the same statute during that period, but that company was not a party to this proceeding, and has not been heard. It should be further observed that on March 25, 1902, the United States circuit court, in a suit begun at the instance and request of the Interstate Commerce Commission, enjoined the Atchison, Topeka and Santa Fe Railway Company to observe in all respects its published schedules of rates. That company from the date of this injunction down to November 27, 1904, was apparently in continuous disregard of that order of court in its failure to maintain these coal tariffs. 10 I. C. C. REP. No. 655. DULUTH SHINGLE COMPANY บ. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY COMPANY; CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY; NORTHERN PACIFIC RAILWAY COMPANY; GREAT NORTHERN RAILWAY COMPANY; AND CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. Decided February 2, 1905. The defendants, by charging a higher rate on shingles than on lumber, in carloads, from Duluth, Minn., to Chicago, Ill., unjustly discriminate against shingles in favor of lumber, subject Duluth and complainant and other shingle shippers from that point to undue prejudice and disadvantage, and afford undue preference and advantage to other places from which shingles are carried at rates as low as those applied on lumber therefrom. H. H. Phelps for complainant. Bailey & Washburn for C., St. P., M. & O. Ry. Co. M. D. Grover for G. N. Ry. Co. P. J. Farrell for the Commission. REPORT AND OPINION OF THE COMMISSION. YEOMANS, Commissioner: The complainant in this case is a firm composed of D. A. Duncan, C. A. Duncan, F. A. Brewer and C. Neimeyer, doing. business under the name of the Duluth Shingle Company, and 1 engaged as wholesale dealers in and shippers of shingles in carloads from Duluth to Chicago and points east thereof. The complaint states that defendants, who are common carriers by railroad between Duluth and Chicago, maintain a rate of thirteen cents per hundred pounds for the transportation of shingles from Duluth to Chicago, which is unreasonable and unjust, and that a reasonable and just charge for such service would be ten cents per hundred pounds; that for a long time previous to January 15, 1903, when such rate was established, defendants had hauled shingles between the points named for ten cents per hundred pounds, which was and still is the rate charged for the transportation of lumber between said points; that said rate of thirteen cents per hundred pounds is unreasonable and unjust as compared with the rate exacted for the transportation of lumber; that defendants charge and receive more for transporting shingles for complainant than they demand from others for doing a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, thereby subjecting complainant and its traffic to undue and unreasonable prejudice and disadvantage, and giving to said other shippers and their traffic undue and unreasonable preference and advantage, in violation of Sections 1, 2 and 3 of the Act to regulate commerce. Complainant asks that the Commission make an order requiring defendants to cease and desist from said violations. The defendants admit charging the rates alleged by complainant, but deny that the same is in violation of law. FACTS. We find the facts relevant to the issues presented in this case to be as follows: Complainant is a firm engaged in buying and selling white pine shingles, which it ships in carloads over the defendants' 10 I. C. C. REP. |