BEFORE THE STATE RAILROAD COMMISSION OF COLORADO. Case No. 11. CITIZENS OF ATWOOD, COLORADO, PETITIONERS, VS. UNION PACIFIC RAILROAD AND CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANIES, RESPONDENTS. Submitted December 4, 1908. FINDINGS OF THE COMMISSION. Petition for depot at Atwood, Colorado. Petition filed December 4, 1908. December 5, 1908, referred to petitioners for additional information. The Commission received four letters from Atwood, Colorado, calling attention to the need of a depot at that place and asking information as to how to proceed with reference to securing one. The Commission advised them to present their petition and mentioned the facts necessary to be set forth in same. The petition was submitted and did not contain any of the information asked for by the Commission, and a second letter was addressed to them, calling for the same information. Nothing further having been heard from the petitioners, the case was closed. FINDINGS AND ORDER OF THE COMMISSION. The petitioner, The Jenkins-McKay Hardware Company, filed on January 25, 1909, their petition with the Commission, wherein they stated: That on December 11, 1908, the petitioners shipped from Denver to Central City one car of smithing coal, 40,000 pounds, for which the defendant, The Colorado & Southern Railway Company, charged them a rate of $3.20 per ton, the alleged distance being 38 miles, which said rate petitioners claim is discriminatory and unjust; they also allege that the said railway company had no published schedule of rates on said commodity prior to January 1, 1909. They asked that they be refunded the difference between the rate charged and what would be a fair and just rate, and that the Commission establish a proper and equitable rate between the said points on said commodity. After duly notifying the said Colorado & Southern Railway Company the Commission fixed the 9th day of February as the date on which said defendant should answer, and they duly filed their answer on said date, stating that at the time of the movement of the said shipment the only rate they had applying on said commodity between the said points was 16 cents per 100 pounds; admitting that the said rate was unjust, and alleging that after the said shipment, to wit, on January 1, 1909, they published and filed a rate of $2.25 per ton on said commodity, and asked permission to pay to the petitioners the difference between the said rate of $2.25 per ton and the charge of $3.20. On March 1, 1909, a hearing was had before the Commission, all of the members thereof being present. HEARING. There were present at said hearing Mr. John C. Jenkins, one of the petitioners, and Mr. James M. Seright, attorney for said petitioners. Mr. E. E. Whitted, general counsel for The Colorado & South ern Railway Company, was also present. The following facts were testified to by witnesses, after being duly sworn: Mr. H. A. Johnson testified that he was the general freight agent of the defendant railroad, and had been since 1899. That their charge on coal from Louisville, Colorado, to Central City, by way of Denver, was $1.75 per ton; that they had to transfer the same at Denver for Central City; that the distance from Denver to Louisville points from where the said coal was shipped was as far as 24 miles, making a distance of 62 miles through Denver to Central City. That the rate on coal from Trinidad District to Central City through Denver is $3.20 per ton. That in shipping from Trinidad and other points the defendant company charged the same rate on blacksmith coal as on other kinds of coal. That the rate on blacksmith coal from Louisville district to Central City is $1.75 per ton, the same as from Denver to Central City, and was classed the same. ORDER. Upon these facts the Commission finds that the rate so charged the petitioner of $3.20 is unjustly discriminatory and unduly preferential, and that a fair and just rate for said commodity between the said points should be no higher than $1.75 per ton, the same as charged for the said commodity from Louisville, Colorado, to Central City, Colorado. That the said respondent is ordered to charge no more than the said $1.75 rate in the future, and that on the said shipment complained of the defendant company refund to petitioner the said difference between $3.20 per ton and the said rate of $1.75 per ton. This order shall take effect May 22, 1909. Dated at Denver, Colorado, April 19, 1909. (Signed) AARON P. ANDERSON, WORTH L. SEELY, Commissioners. BEFORE THE STATE RAILROAD COMMISSION OF COLORADO. Case No. 12. JENKINS-MCKAY HARDWARE COMPANY VS. THE COLORADO & SOUTHERN RAILWAY Submitted February 15, 1909. FINDINGS AND ORDER OF THE COMMISSION. On May 19, 1909, the defendant, The Colorado and Southern Railway Company, filed a motion for a rehearing and reopening of this cause and for leave to offer further evidence. On July 6, 1909, the said motion was argued by Mr. E. E. Whitted, counsel for defendant, the petitioner being present by Mr. J. M. Seright, its attorney. Said motion was granted by the Commission, and the order of April 19, 1909, set aside, and both petitioner and defendant allowed to offer additional testimony, and the rehearing set for Monday, July 19, 1909. By agreement of the respective counsel, the rehearing was continued to Monday, July 26, 1909, at 10 o'clock a. m. On motion of Mr. Seright, attorney for said petitioner, the petitioner was allowed to amend the original petition to show an award of damages, instead of charges. One car of blacksmith coal, shipped from Redstone, Colorado, December 11, 1908, weight 40,000 pounds, and on which said petitioner paid freight from Denver to Central City, Colo., is the shipment complained of as carrying a rate which, as alleged, is excessive, unjust and unreasonable. The shipment, which moved subsequent to January 1, 1909, under the commodity rate on blacksmith coal of $2.25 per ton, C. L., Denver to Central City, and on which the defendant collected, through mistake, as admitted, the rate of $3.20 per ton, is also claimed to be excessive and unjust. Yet, this second shipment not being included in the complaint or the pleadings, this Commission is without jurisdiction to adjust the same. While the law requires carriers to establish, file and publish their rates, such publication is not conclusive of their reasonableness. It is also within the province of the Commission to award reparation for duly proven damages to parties injured by unreasonable and unjust charges, even though such charges be in accordance with published rates. The complainant asks for lower rates from Denver to Central City, Colorado, and comparison is made with rates from coal-producing points, the particular points being: First. What is known as the "Northern Colorado Field," but, for purposes under consideration, designated as "Louisville." Second. Comparison is made with what is known as the "Trinidad District," which is distant from Denver about 200 miles and 240 miles from Central City. Prior to January 1, 1909, the defendant had no rate on blacksmith coal other than "Class D" rate, which was $3.20 per ton, or 16 cents per 100 pounds, but on said date a rate of $2.25 per ton, C. L., went into effect on blacksmith coal only-the rate of $3.20 on all other coal remaining in effect. Complainant contends that the rate exacted by defendant for the transportation of blacksmith coal from Denver to Central City is excessive and unjust, even as published effective January 1, 1909, and asked that said rate of $2.25 between said points be still further reduced. The testimony of Mr. Johnson, general freight agent of the Colorado & Southern Railway, disclosed the fact that all coal moving between Denver and Central City took "Class D" rate, and was classed the same prior to January 1, 1909. In the former hearing it was claimed by counsel for defendant that the tariff rate published January 1, 1909, of $2.25 per ton, is not excessive, and that it can not be compared with the $1.75 rate on lignite coal from Louisville, as blacksmith coal is a higher grade coal and is shipped in limited quantities, whereas they haul trains of lignite coal daily, a cheaper grade of coal and carrying a cheaper rate. While the Interstate Commerce Commission has held in several instances that the unreasonableness of a rate can not be proven by simply comparing it with another rate, yet, under conditions and circumstances similar to those surrounding this case, the comparisons are worthy of consideration, when taken in connection with the other circumstances and conditions, as shown and brought out in the testimony. This statement, it seems to us, is a little misleading when applied to the question at issue, and is susceptible of a broader construction when applied to the case before us, because if, as |