freight aggregating 1520 lbs. for which the revenue on the 50 lbs. minimum basis was only $4.36. Complainant claims that the rule fixing the 50 lbs. minimum charge had been in force for a long time and therefore should not be disturbed. It must be observed, however, that many changes have been made in this rule in the last twentyfive or thirty years, and that the present rule has been followed for a much longer period than any other. Also that in a large section of country, more dense in population and having a larger volume of traffic, a still greater minimum weight is fixed for package freight. While it is true that the freight charges on packages of 50 lbs. or less have been doubled by the adoption of the rule in question, the charges therefor do not average as high as the charges for similar traffic under the Official Classification by which all package freight under 100 lbs. weight is rated as first class. The liability to loss of small packages through theft or being mislaid is much greater than in the case of large packages, and entails correspondingly more trouble and difficulty in tracing. There has not been sufficient disclosure of the effects of the operation of the rates made effective by the change in the rule in question upon all kinds of traffic to justify unqualified approval of the same in its general application, but the Commission does not upon the facts appearing find that the same is unreasonable or unjustly discriminative in its application to the complainant's traffic. The complaint is therefore dismissed. 10 I. C. C. REP. No. 660. PAXTON TIE COMPANY บ. DETROIT SOUTHERN RAILROAD COMPANY. Decided January 7, 1905. Between December 16, 1902, and April 6, 1903, defendant unjustly discriminated against complainant in furnishing cars for the shipment of cross ties by refusing to provide any cars for such shipments by complainant, while it did furnish cars to other persons for the interstate shipment of lumber, stone and many other freight articles, and also supplied cars for the shipment of cross ties destined almost entirely for its own use. Reparation in the sum of $630 awarded to complainant. P. J. Farrell for the Commission. Dickinson, Stevenson, Cullen, Warren & Butzel for Defend ant. REPORT AND OPINION OF THE COMMISSION. FIFER, Commissioner: Complainants allege that on December 16, 1902, and at divers other times thereafter to and including February 25, 1903, defendant unduly discriminated against them in the matter of furnishing cars, in violation of section 3 of the Act to regulate commerce, whereby they were greatly damaged: and that during the same time defendant neglected to publish its schedules of rates, fares and charges, as required by section 6 of said act. Complainants ask reparation for the damages they claim to have suffered in the premises. Defendant, in its answer, denies the alleged violations of law and advances some new matter in explanation and justification of the discrimination complained of. Facts deemed material to a determination of the questions thus presented are found as follows: FINDINGS OF FACT. During all the times mentioned herein the complainants, J. Pearce Clagett and Ernest E. Rockhold, have been engaged as partners in the purchase, shipment and sale of cross ties, under the name of "Paxton Tie Company." They have been purchasing ties in the vicinity of Bainbridge, Ohio, shipping them over defendant's line of railway and other lines connecting therewith to market points in other states and selling them to different parties located at the latter points. Defendant is a common carrier of interstate traffic and furnishes the only transportation facilities enjoyed by the locality of Bainbridge. Complainants began business on or about December 20, 1901, and until December 16, 1902, obtained all the cars they required. Between the latter date and April 6, 1903, defendant neglected and refused to furnish complainants any cars, although they repeatedly made requests therefor. On December 16, 1902, defendant's car service agent issued an order, directed to defendant's agent at Bainbridge, the body of which reads as follows: "On account of the extreme shortage of cars coal cars at our mines-we will be unable to place any more for ties (excepting company ties) until further notice." On December 31, 1902, the car service agent issued another order, directed to defendant's agents at Bainbridge, Waverly and Beavertown, the body of which reads: "Referring to my letter of December 16th, file 2848, placing restriction on loading coal cars with ties (except company ties) until further notice. This will apply to box, flat and stock cars.' On January 22, 1903, a like restriction was placed upon shipments of wood and fence posts, but it was immediately removed from wood, and the record shows that during the early portion of January several carloads of posts were shipped from Bainbridge. Although defendant was, during the time in question, engaged in the transportation of lumber, stone and many other freight articles, it placed no restrictions on shipments, except as above. Reasons advanced by defendant for discriminating against ties were, the scarcity of cars and the necessity of furnishing them for shipments of coal and other fuel and grain. Defendant filed statements showing shortage at and shipments from points on its road as follows: Between December 16, 1902, and April 6, 1903, the average daily shortage was 405 cars, while between December 1, 1902, and April 1, 1903, the average of daily shipments was 434 cars. It will thus be seen that the shortage was not the equivalent of one day's supply. During the winter of 1902-1903 coal and other fuel was very scarce in markets of consumption, and shippers therefore made urgent demands upon defendant for cars in which to make shipments of fuel. Grain dealers were also demanding more cars than they could obtain. But the record shows that cars which cannot be used either for shipments of coal or grain can be and are used for shipments of ties; that is to say, cars having bad floors or leaky roofs. It also shows that between December 1, 1902, and April 1, 1903, 65 cars of ties and 207 cars of other traffic were shipped from Bainbridge, while during the same time the average of shipments from all points on defendant's line, as above stated, was 434 cars per day. Of the ties shipped it appears that all except 6 carloads were company ties. Of these, 1 was loaded by a competitor of complainants, without the knowledge of defendant, and the other 5 were shipments made in cars furnished by the Pennsylvania Company with the understanding that the ties should be shipped to a point on the Wheeling & Lake Erie Railroad. Complainants contend that defendant wilfully discriminated against their tie traffic because it wished to prevent the shipment of ties off its line of road. Defendant made through rates formerly from points on its road to points on other roads both on ties and lumber. It has continued this practice as to lumber, but for some time previous to August 29, 1903, it discontinued its through rates on ties. This subjected complainants to the payment of local rates which were greater in the aggregate than the through rates they had previously paid; whereupon, they undertook to persuade defendant's president to re-adopt the former practice. In reply to a letter written on behalf of complainants defendant's president said: "In the matter referred to we are simply following what we consider our interests, which is to prevent the shipment of tie timber out of the country so far as we may be able to do so lawfully, by refusing to make rates less than lumber rates In a letter written by the same officer to complainants we find the following statement: "I am not uninformed as to the tie situation. The arrangements heretofore in effect for the purchase of its ties by this company have been entirely satisfactory and I am in sympathy neither with the effort to raid the established business of another man nor with the enforced competition resulting from an attempt of that kind, which would affect the treasury of this company in the way of increased prices for its own consumption of ties * * * * * In these letters defendant's president intimates that complainants asked for rates less than lumber rates; that they were interfering with the established business of another man; and that they were endeavoring to compel defendant to pay more than it had previously paid for ties. By discontinuing through rates on ties and continuing them. on lumber defendant rendered the rates on ties greater than those it was then exacting on lumber, because the through rates on the latter traffic were less than the sums of the local rates on the former. While defendant was refusing to furnish cars to complainants, as aforesaid, the latter were competitors of defendant's tie agents, who were then purchasing ties in the vicinity of Bainbridge, and Bainbridge is one of the most important tiepoints on defendant's road. Also, between the date when complainants began business and the date of the hearing in this |