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vanced, if the business had continued to be of moderate dimensions, without exceeding the standard of reasonableness which the carriers were bound to observe. Taking this into account, as the facts and circumstances seem to me to require, I am unable to find or conclude that the rate is now too high because it has never been reduced, although the traffic has grown to great and perhaps unexpected proportions.
It is this consideration mainly which prevents me from accepting the conclusion of Commissioner Prouty, whose statement of facts and observations concerning the orange traffic and the conditions under which it is transported express my own views in that regard. It may be quite true, and I am not prepared to dispute it, that the present service is not worth as much to the shippers as the former service by possibly 15 cents per 100 pounds. If, therefore, this rate was only reasonable in a legal sense when the service was better in point of time and other respects, it might be said that the same rate is now unreasonable in view of the slower and less satisfactory service which to a greater or less extent the shipper has lately received. Admitting this diminished value of the service now afforded, I am unable to agree to his conclusion for the reason that the rate in question, even when quicker and better service appears to have been furnished, was in my judgment somewhat lower than the carriers might have lawfully exacted.
Moreover, any failure to maintain the former speed of trains carrying this orange traffic is not, like the rate, a matter of policy and intention. The carriers have not announced their purpose to give slower service or otherwise lessen the facilities heretofore provided. On the contrary, they seek to excuse the detentions that have recently occurred by reference to the remarkable increase in the last few years of all their traffic, including oranges, and their inability at times to handle it without congestion and delays. They assert that present conditions in this regard are only temporary and that they intend in the future to furnish the orange grower with a service as prompt and satisfactory as was formerly afforded. It is a matter of common knowledge that carriers in all parts of the country have not been able to move the extraordinary tonnage offered with customary
dispatch, and there is little reason to believe that orange shippers have suffered more on this account than shippers of other commodities. If these delays in delivery, often, if not altogether, unavoidable, are a sufficient ground for reducing the rate in question, why should not rates in general be condemned for the same reason? In addition to this is the practical difficulty of adjusting rates to the varying conditions of carriage in respect of time and other incidents. Granting all that is claimed as to the recent inferior service afforded to orange shippers, it still remains unproved, in my judgment, that the rate imposed upon this traffic violates any provision of law.
There is another and more general reason for my disagreement. Even if the specific findings in the majority report be accepted as a fair and adequate summary of the facts and circumstances to be considered, I am nevertheless constrained to hold that the unreasonableness of this rate has not been established. The conclusions drawn by them do not seem to me to be warranted even by their views of the testimony as reflected in the findings they have made. The inferences drawn from particular facts, each one of which may be undisputed, are after all matters of opinion which in the nature of the case cannot rest upon a well defined and logical basis of reasoning. Reluctant as I am to differ with those for whose judgment I have the greatest respect, I cannot in this case concur in the conclusions they have reached. All I need say or care to say further in that regard is that the most careful attention I have been able to give to the question leads me to a different conclusion.
In view of the exceptional degree of prosperity which the orange growers of California enjoyed until their production exceeded the consuming capacity of the country, in view of the fact that the rate applied enables them now to reach the most distant markets in the eastern states, to the virtual exclusion everywhere of the foreign-grown orange, and even to the exclusion of the Florida orange except for limited periods of the year, in view of the showing made by comparison of this orange rate with other rates upon which the principal products of the country are to-day moving, in view of all the facts and circumstances which surround the transportation of California oranges, it seems to me that something should appear much more persuasive and convincing than I am able to discover in this case before we can fairly find as a matter of fact or justly hold as a conclusion of law that the rate in question exceeds the requirement of reasonableness which the regulating statute imposes. In my judgment this rate has not been shown unreasonable, and for that reason I feel compelled to dissent.
RICHMOND ELEVATOR COMPANY
PERE MARQUETTE RAILROAD COMPANY.
Decided February 18, 1905.
1. While the Act to regulate commerce contains no provision which ex
pressly or by proper implication gives this Commission jurisdiction in cases merely showing delay or negligence in the receipt, forwarding or delivery of property offered for transportation, including the furnishing of cars, the regulating statute does prohibit any unjust discriminution or wrongful prejudice in the provision of cars or other transportation facilities, as well as in the fixing and application of transpor
tation charges. 2. Every shipper is legally entitled to fair opportunity and treatment in the
use of these public utilities, and any discrimination which in substantial degree deprives shippers of such use must be considered unjust, unless forced by justifying conditions. In such a case the burden of proof is. upon the complainant to the extent of showing discrimination, and
then upon the carrier to show that the discrimination was justified. 3. Merely putting in evidence defendant's rule of car apportionment is in
sufficient to show discrimination against the complainant; the actual effect of the rule, during the time covered by the complaint is necessary to a determination of the question of unfairness in the distribution of
cars. 4. It appears generally from the facts in this case that in furnishing cars
defendant unjustly discriminated against the complainant, which desired to ship hay from various points in Michigan, but the proof fails to indicate with any degree of certainty the damage caused by the wrongful discrimination and the amount which the complainant is entitled to recover by way of reparation. Complainant granted leave to apply within a limited time for further hearing.
Silas B. Spier for complainant.
Charles McPherson for defendant.
REPORT AND OPINION OF THE COMMISSION.
The complainant alleges that on and after October 15, 1902, the defendant unjustly discriminated against it in furnishing cars for interstate shipments of hay and grain from Valley Center, Doyle, Avoca, Croswell and Memphis, points on defendant's railway in Michigan, in violation of section 3 of the Act to regulate commerce. The defendant, in its answer, denies the violation of law charged in the complaint. The material facts are as follows:
FINDINGS OF Fact.
The complainant is a corporation, having its principal office and place of business at Lenox, Michigan. It is engaged in the purchase, shipment and sale of hay and also deals to some extent in grain. It purchases hay at different points in the State of Michigan, including Valley Center, Doyle, Avoca, Croswell and Memphis, and ships it over defendant's line and other lines connecting therewith to markets in the East and South, ineluding New York, Philadelphia, Boston and Baltimore.
The defendant is a common carrier of interstate traffic, operating about 2,000 miles of railway, with the greater portion of its mileage in the lower peninsula of Michigan. The only transportation facilities enjoyed by the localities of Valley Center, Doyle, Avoca, Croswell and Memphis are those furnished by defendant.
During the month of September, 1902, complainant sold in eastern markets about 300 carloads of hay, and between September 30 of that year and the first of the following January it sold 200 carloads more. Complainant's shipments average about 10 tons to the car.
The contentions of complainant may be classified as follows: (1) During unreasonably long periods of time defendant neg. lected to furnish cars ordered by complainant. (2) While defendant was so neglecting to furnish cars to complainant it furnished cars to other shippers for shipments of different freight articles, including hay and straw. (3) About three-fourths of