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tions from the shipper. Held, That the initial line was responsible to the shipper for the resulting increase in the transportation charges.
84. A commodity rate takes the commodity out of the classification.—A carrier having a high-class rate on furniture with a low minimum also had a lower commodity rate with a higher minimum. In response to an inquiry whether they are privileged to use either rate as they desire: Held, That the only purpose of making a commodity rate is to take the commodity out of the classification. The commodity rate is, therefore, as stated in Rule 7, Tariff Circular 15-A, the lawful rate. And if the carrier does not desire to apply it on all shipments it must be canceled.
Also, Held, That in classifications and class-rate tariffs that are issued or supplemented hereafter carriers shall carry a rule providing that whenever a commodity rate is established it removes the application of the class rate between the same points on that commodity.
If the alternative use of class or commodity rates is necessary or desired in any instance, it may be provided by including in different sections of one and the same tariff the class and commodity rates and by including in each section the specific rule: "If the rates in section of this tariff make a lower charge on any shipment than the rates in section of this tariff, the rates in section will be applied." Similar authority for use of a distance tariff is found in Rule 10, Tariff Circular 15-A.
June 25, 1908.
85. Substituting tonnage at transit point.-A milling, storage, or cleaning-intransit privilege is established on the theory that the commodity may be stopped en route for the enjoyment of such privilege, and the commodity or its product be forwarded under the application of the through rate from original point of shipment. It is not expected that the identity of each carload of grain, lumber, salt, etc., can or will be preserved, but in the opinion of the Commission it is unlawful to substitute at the transit point, or forward under the transit rate, tonnage or commodity that does not move into that point on that same rate.
86. Posting tariffs at stations.-Under the order of the Commission of June 2, 1908, entitled "In the Matter of Modification of the Provisions of Section Six of the Act with Regard to Posting Tariffs at Stations," if a subsidiary or small connecting line has authorized the parent company, or principal connecting line, to publish and file for it all of its tariffs, tariffs so issued and filed on its behalf will be included in the complete public tariff files of the parent or issuing line, and it will not be neces sary for such subsidiary or small line to maintain an additional complete public file. 87. Transportation for eating houses operated by or for carriers.-Carriers subject to the Act may provide at points on their lines eating houses for passengers and employees of such carriers, and property for use of such eating houses may properly be regarded as necessary and intended for the use of such carriers in the conduct of their business. Such eating houses, however, must not serve the general public, or any portion thereof, with food prepared from commodities which have been carried at less than the full published rate, and no utensils, fuel, or servants at all employed in serving others than passengers and employees of the carrier as such should be carried at less than tariff rates. Such privileges as may be extended under this rule shall be applied only as to points local to the line on which the eating house is situated. 88. Hours of service law.-The specific proviso of the law in regard to hours of service is:
"That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations, continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week.”’
These provisions apply to employees in towers, offices, places, and stations, and do not include train employees who, by the terms of the law, are permitted to be or remain on duty sixteen hours consecutively or sixteen hours in the aggregate in any
twenty-four-hour period, and who may occasionally use telegraph or telephone instruments for the receipt or transmission of orders affecting the movement of trains. Section 3 of the law provides that:
"The provisions of this Act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen.''
Any employee so delayed may therefore continue on duty to the terminal or end of that run. The proviso quoted removes the application of the law to that trip.
89. In the matter of the use of tariffs containing long and short haul clauses, maxima rules, and alternative rate or fare provisions.-Upon application of certain carriers: It is ordered, That the terms of the Commission's Special Circular No. 6, Tariff Department, of January 7, 1908, be, and they are hereby, extended to October 1, 1908, and that no change other than the extension of time is authorized in the terms or provisions of said circular.
It is further ordered, That the Commission hereby announces that it will not hereafter grant further extension of time in this matter, either by general order or in individual cases, but that from and after October 1, 1908, the Commission will adopt such means as may be necessary to deal with violations of the law or unlawful use of tariffs.
June 29, 1908.
90. Jurisdiction of act over local belt or switching lines.-The question is asked, "Is a belt line owned by a municipality, which participates in interstate movements, subject to the jurisdiction of the Act and of the Commission?" Held, That it is subject to such jurisdiction.
91. Misrouting via line that has no tariff on file.-A shipment was misrouted and passed over a route via a part of which no rate was filed with the Commission, and was thus subjected to a higher charge than the through rate via the proper route. Held, That misrouting carrier may be authorized to make refund on account of its error in misrouting shipment, and that carrier which participated in the transportation without lawful tariff applicable thereto should be dealt with through the Department of Prosecutions.
92. A much longer and more indirect route not a reasonable route.-A shipment was tendered destined to a certain point the direct route to which was over the lines of two carriers, a distance of 358 miles, the rate via that route being 22 cents. It was possible to serd the shipment around over the lines of three carriers, a distance of 617 miles, and secure a combination rate of only 19 cents. Application for refund was made account the difference between the rates. Held, That the claim for refund should be denied on the ground that the much longer and indirect route is not a reasonable route.
93. Use of passes by servants.-Opinion expressed on April 14, 1908, on the subject of use of passes by servants, is modified; and it is Held, That a household servant when traveling with a member of the family entitled to a pass is included within the term "family as used in the Act. (See No. 63.)
June 30, 1908.
94. Misrouting involving carriers not subject to the Act.-A shipment was tendered to a carrier in North Carolina, destined to California. Shipper requested that it be sent via New York and the Isthmus of Panama. Shipment was forwarded all rail under a rate alleged to be higher than would have applied via the route indicated. Held, That the Commission cannot authorize refund because no tariffs are on file with the Commission via the route over which the shipment moved, and there is therefore no official measure of the accuracy of the claim for overcharge or the amount thereof.
95. Leasing carrier's property in consideration of lessee's shipments.-A carrier leases a part of its property to a certain industry under a contract which contains the obligation on the part of the lessee industry to make all of its shipments by the line of the lessor carrier. Such a provision plainly implies that the traffic so furnished by the lessee and so secured by the lessor is an important and substantial consideration which might amount to a concession in the rates for transportation, and,
therefore, be an unlawful device or discrimination. The Commission expressed doubt as to the propriety of the practice.
96. Notice as to the issuance of passes.-It appearing that the ruling issued by the Commission on the 9th day of June, A. D. 1908, relative to the issuance and use of passes, should be modified in certain respects relating to the forms of passes to persons eligible to receive free transportation under the act to regulate commerce, it is ordered that said ruling shall be amended to read as follows:
Many abuses in the issuance and uses of passes have been discovered by the Commission which it is desired to correct, and to this end, and because of the misinterpretation of the law by carriers generally, the Commission at this time makes announcement that it will recommend the indictment and prosecution of all carriers and persons issuing passes to, or allowing the use of passes by, any persons not included within the designated classes to whom free transportation may be given by carriers subject to the act to regulate commerce as set forth in said act. Among those not included under the provisions referred to are the following:
1. Officers or employees of news companies other than newsboys.
2. Officers or employees of telegraph or telephone companies, excepting when personally engaged in operation, extension, repair or inspection of lines upon or along the railroad right of way and used in connection with the operation of the railroad.
Officers or employees of surety, transfer, and baggage companies, except baggage agents. 4. Officers or employees of carriers not subject to the act to regulate commerce, including officers and agents of steamship and stage lines not subject thereto. Officers or employees of subsidiary corporations, which corporations engage in any employment for, or render any service to, other than the carrier, save that such officers or employees may be granted free transportation when engaged on the business of the carrier.
6. Families of local attorneys, surgeons, and others who are not regularly employed by carriers.
Each pass issued must bear upon its face the name of some person belonging to a class named in section 1 of the Act as eligible to receive free transportation. In addition to such person so named a pass may also carry not to exceed a specified number of unnamed persons of any class eligible to receive free transportation; the number and the class to which such person belongs being specified upon the face of the pass. That is to say, passes in the following forms will be recognized by the Commission as legal:
"Pass John Smith, President, car, and five officers and employees of the X. Y. & Z. Railway."
"Pass J. R. Barner and six linemen, foreman, and force of the Western Union Telegraph Company. Good only when traveling in connection with the construction, maintenance, or operation of the lines of the Western Union Telegraph Company on the right of way of this A. B. C. Railway Company."
"Pass one extra messenger of the Southern Express Company when presented with letter signed by Superintendent, Assistant Superintendent, or Route Agent of said Express Company, authorizing use and giving name of person to be passed.'
"Pass John Smith, section foreman, and six employees of X. Y. & Z. Railway.' The Commission holds that the word "family,'' as used in section 1 of the act to regulate commerce, includes those who are members of, and who habitually reside in, the household of the person eligible to receive family passes, including household servants when traveling with the family or with any member thereof, and relatives who are in fact dependent upon such person, although not actually residing in his household. The Commission will, therefore, view passes in the following form as lawful:
"Pass John Smith, wife, two sons, three daughters, and two servants."
"Pass Mrs. John Smith and daughter, account John Smith, Agent X. Y. & Z. Railroad Company at Washington, D. C."
The name of the person presenting the pass must appear upon it. Passes intended to be used in the absence of the head of the family whose occupation makes the issuance of passes lawful must, in addition to the name of said head, show the name of the person using the same. For instance, a pass to be used by John Smith, his wife, or his daughter, separately, should read:
"Pass John Smith, Mrs. John Smith and Miss Mary Smith, account C. & O. Agent at Richmond, Va."
Every pass to an officer or employee of a carrier other than the one issuing the pass, shall indicate the name and rank of the person to, or on behalf of whom, such pass is issued, as well as the name of the carrier employing him.
The Commission construes the Act, so far as it relates to railway-mail service em. ployees, as giving such employees the right to receive free transportation when on duty in their cars, or when traveling under orders from a superior officer. The Commission does not now undertake to say how far this portion of the act to regulate commerce is modified or controlled as regards railway-mail service employees by other statutes or by contracts between carriers and the Postoffice Department.
The Commission will recognize any rail or water carrier filing a tariff, joint or local, with the Commission, as a carrier subject to the Act so far as the issuance of passes to its officers and employees may be concerned. Where a carrier has no tariffs on file with the Commission, and does not acknowledge itself subject to the Commission's jurisdiction, the Commission will regard the issuance of passes to its officers or employees as unlawful, without, however, thereby passing upon the question of the jurisdiction of the Act over such carrier in so far as it may be necessary to assert such jurisdiction. In this regard reference is made to Cosmopolitan Shipping Co. v. Hamburg-American Packet Co. et al., 13 I. C. C., 266, and In Re Petition Frank Parmelee Co., 12 I. C. C., 46. By reference to these decisions it will be seen that among the carriers not subject to the Act are ocean carriers to non-adjacent foreign countries and domestic carriers by wagon, stage, or automobile. Carriers covered by these decisions are not eligible to file tariffs or receive passes.
The Commission reaffirms Rule 63 of Tariff Circular 15-A of this Commission. The Commission cannot undertake, in any case, to determine whether or not individuals are within any of the classes mentioned in section 1 of the Act as eligible to receive free transportation.
The Commission will not regard as unlawful allowance of use, or the use of passes merely irregular in form under this ruling, during the present calendar year. Passes, however, issued to persons not eligible to receive the same must be called in at once, as well as passes so loosely framed that persons not eligible to receive free transportation may be carried upon them. That is to say, a pass to "John Smith, family, and household servants," although irregular in form, will not be regarded by the Commission as unlawful prior to January 1, 1909. A pass, however, to John Smith, car, and party," being susceptible of use for the transportation of persons not within the Act, should be immediately corrected.
Carriers are enjoined against the destruction of records or memoranda touching the issuance of passes, and the passes themselves, coming into the hands of the carriers after use, must, until further order of the Commission, be retained for a period of not less than five years.
INDEX TO ADMINISTRATIVE
STATE COMMERCE COMMISSION.
RULINGS OF THE INTER
Tariff Circular No. 15-A. (See page 681.)
Supplement No. 1 to Tariff Circular No. 15-A. (See page 745.)
Tariff Circular No. 16-A. (See page 759.)
Bulletin No. 1 Conference Rulings. (See page 787.)
Bulletin No. 2 Conference Rulings. (See page 797.)
[Figures indicate sections. Figures preceded by "S" refer to sections in Supplement No. 1 to Tariff Circular 15-A.]
Absorption of switching charges under tariffs must be paid by carrier.
Act of God, hours of service law does not apply....
carrier may sell feed for feeding in transit.
to boats, not common carriers, forbidden..
Commission will not intervene between carrier and agent.
may request short notice..
new rate not canceling old; old rate effective.. sells colonist ticket at regular rates; carrier loses. waiting authority, demurrage accrues, must be paid. Agreement for divisions of joint rates must be filed. Alternative rates not permitted after Oct. 1, 1908.. Amendment of joint tariff on short notice... Application
for short notice by mail and not by telegraph.. for short notice tariffs, how made...
Application of rates
blockade, detoured traffic..
equalization via other routes.
specific joint through rates.
demurrage on may be adjusted under Rule 74.
may be returned free..
Attorney-in-fact files tariff, nonconcurring carrier refiles, unlawful..
Baggage companies, no passes to, except baggage agents.
Authority of Commission required before refunding on basis of previous order