it may, even in great emergency, discriminate between the two classes of shipments, and the decision is confined to the particular situation disclosed by the record in this proceeding.

John B. Daish, Walter Lyon and W. A. Griffith, of Lyon, McKee and Mitchell for complainant.

Thomas Patterson and Fransis I. Gowen, for defendant.

REPORT AND OPINION OF THE COMMISSION.

CLEMENTS, Commissioner:

The petition sets forth that the complainant is shipper of coal from Irwin, Jeannette and Marchand, in the State of Pennsylvania, to various markets in other States; that the defendant is a common carrier subject to the Act to regulate commerce; that in the fall of 1902 the complainant notified defendant to furnish cars for such shipments, which defendant failed and neglected to do under a rule to furnish no cars to be loaded from wagons, though furnishing cars to competitors at the same time.

Complainant avers that he can load cars as promptly as can be done from tipples at sidings without interfering with defendant's traffic; that by reason of said failure to furnish cars to complainant and preferences and discriminations in favor of competing shippers complainant was subjected to damage through loss of profits and injured business, and this through unreasonable prejudice and disadvantage in violation of sections 2 and 3 of said Act, and prays an order that the defendant be required to desist from such violations of the Act, and for reparation for the damage done.

The defendant, answering, alleges complainant is not a regular shipper of coal, but is a druggist; that the shipments made and contemplated were very few in number; admits that it is a common carrier "subject to the valid and constitutional provisions of the Act"; that demands were made for cars which were sometimes complied with. It avers that during the fall of 1902, owing to the anthracite strike and activity in coal-using industries, demand for bituminous coal became so great this

defendant and other companies found it impossible to furnish cars to meet requirements; coal advanced to a high figure and complainant with others at various points purchased rights from farmers to dig surface coal, hauled it to some siding and loaded it by hand into cars; some cars were so furnished, but realizing injury would follow increase of such demand, defendant discontinued the practice and refused to furnish cars to be loaded in this way, but denies discrimination or unreasonable prejudice or that it furnished competitors of complainant, similarly situated, cars to any greater extent than to complainant. It admits that it made a rule that no cars can be furnished for coal from wagons, but insists that this is reasonable, since cars are longer detained by wagons than tipples, and sidings so occupied not designed for such use means increased shifting and delays.

FACTS.

From the records and testimony the following facts bearing upon the issues are found:

During the fall and winter of 1902 and 1903 the strike in the anthracite coal region of Pennsylvania created an unprecedented demand for bituminous coal in Eastern markets, and abnormally high prices prevailed.

These conditions led the complainant, a druggist at Irwin, Pa., to attempt the purchase and sale of the product of what were known as surface or farm or country mines, situated usually a mile or more from the line of the railroad and not operated on account of comparative disadvantages, except for possible local demand.

To this end he engaged to purchase from the owners, the surplus product above each local demand as certain mines might be capable of producing near the stations of Irwin, Jeannette, Marchand and Johnstown.

He also arranged with farmers in the neighborhood of these mines whose teams were idle in the winter months to haul such coal as might be disposed of from the mines to the railroad and load it on cars to be furnished by himself as occasion demanded. He then made demand on the agent of the defendant to sup

ply at the respective stations the necessary cars for such shipments to be loaded on sidings from wagons.

Under normal conditions this method of supplying coal from distant mines for shipment afforded no profits; the mines were not operated for railroad shipments, and there was no rule of the company governing the furnishing of cars for that purpose. The first agent of defendant company approached by complainant announced that cars would be supplied, but the following day the agent at another point said he had an order to place no cars for loading from wagons, and on the same day the first agent said he was in receipt of the same order.

Complainant made many demands on various agents of the company and was furnished several cars in the month of November, 1902, although in that month the following order was issued by defendant forbidding the furnishing of cars for coal except to shippers owning their own sidings and tipples: "November 17, 1902.

"Our attention has been called to the fact that bituminous coal is being loaded at various points which is hauled in wagons from mines which have no track connection with us. We do not feel that we are under any obligations to furnish cars for this business, particularly in view of the fact that we are unable to supply our legitimate shippers having track connections with our road; and I will be glad if you will instruct your superintendents to place such cars as we have available for the shipment of coal only at mines having track connections with us."

Later, on December 30, an order modifying this rule was published, but instructing the agent "if it is ascertained that this coal is being bought by speculators for the purpose of shipping to tidewater or other Eastern points, such shipments should not be allowed to interfere with the car supply of our legitimate shippers."

In that time some cars had been furnished at various stations for loading with wagons, the Badic Brick Company, under a special order, being permitted to load with coal on its own sidings cars it had emptied of stone, which coal was to be sent to its own quarries.

It has long been the practice of the defendant company to

furnish for the various divisions of its line printed elaborate folio tables in blank for returns, showing each mine worked upon the division by name, the daily capacity of each mine in cars, the percentage of cars available for distribution to which each mine was entitled. Private cars and company cars were not included in these tables of distribution, nor were any farm mines listed, as prior to this period none could be profitably worked.

When an operator desired to open a mine along the line of the railroad he made application on blanks provided for the purpose for the building of a siding, erecting a tipple which might, like a dwelling house, range among the thousands as to price, and applied for cars to be furnished, the proportion he was to receive being determined by the officials of the road after tests, as to capacity and scales, apparently satisfactory to both the road and the operators; and thereafter was listed among the operated mines as entitled to a certain percentage in the daily distribution of empties for shipment.

Wagons could haul about 371⁄2 bushels to the load-one and one third long tons. One witness said a 60,000 lb. car would require about eight or ten wagon loads to fill, but the statement must have been careless because the testimony of the complainant would indicate it required in the neighborhood of double that number of wagon loads for each car of 60,000 lbs. capacity.

The haul from the country mines was one and a half miles or more, and at one point the testimony was that a car could be loaded in one and a half hours or a half dozen cars loaded in a day.

From October to February there were ordered by the various mines, including cars required by defendant company for coal intended for its use, an average of above 3,000 cars per day, and a shortage reported of an average of above 2,000 cars per day; that is, not much above one-third of the cars ordered by the mines regularly in operation along the line of the road were furnished in that period, and there was a shortage as well in the cars ordered for coal for the use of the company.

In November the complainant received five cars, two about

the 12th, and one each on the 18th, 24th and 25th. In January he received one each about the 10th, 19th and 28th. One of these cars, consigned to South Amboy, was held after loading and complainant notified of an embargo on South Amboy whereupon he shipped it to New Trenton, N. J.

Complainant erected at Irwin a platform at a cost of about $75 to facilitate the loading of cars from which he shipped about one hundred tons and about 88 tons still remained on the platform at the date of the hearing.

The claim for reparation is based on the estimated output of the various country mines named. On this subject he accepted the statements of the owners of the farms. The miners necessary to such production were never engaged, the coal was not mined, the teams were not engaged for the delivery of the capacity claimed, as this would have been idle without the cars to make the shipments; nor was complainant liable on any contracts beyond the amounts for coal actually delivered.

CONCLUSIONS.

The relations of the railroad to the public are well defined by legislation and a long line of judicial opinions, and these entail upon carriers fair and equal treatment to all patrons, both as to rates and facilities. The power of the carrier by favoritism to upbuild an industry or individual, or to destroy another by unlawful discrimination, is too deadly to permit its unbridled exercise, and license in this regard is being constantly curtailed.

That the complainant is a druggist, instead of a so-called legitimate operator, does not in the least abridge his right to enter the field of competition with those who possibly followed some other calling before they were coal operators. That he unloaded cars from wagons is not of itself a bar to his right to ship, else would a great bulk of our commerce suffer eclipse, since much of it is hauled in that way.

It is true the complainant was entirely within his rights in engaging in the business of coal brokerage, and when tendering freight for transportation was entitled to be furnished the same facilities as other shippers under like conditions.