No. 9023.1

E. CLEMENS HORST COMPANY

v.

SOUTHERN PACIFIC COMPANY ET AL.

PORTIONS OF FOURTH SECTION APPLICATIONS Nos. 345 AND 349.

Submitted December 18, 1918. Decided February 26, 1919.

Rates on hops, in carloads and less than carloads, from certain points in California to certain eastern destinations found to have been unduly prejudicial. Reparation awarded.

Seth Mann for complainants in Nos. 9023 and 9023 (Sub-Nos. 1 to 15, inclusive, 17, 18, 19, 22, 24, 27, 28, 31, 33, 34, 35, 36, and 39); G. J. Bradley for complainants in No. 9023 (Sub-Nos. 25 and 42); T. J. Geary for complainants in No. 9023 (Sub-Nos. 16, 21, 23, 26, 29, 32, 37, 38, 40, 41, and 43 to 50, inclusive); F. J. Wiebers for

1 This report also embraces No. 9023 (Sub-No. 1), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 2), Same v. Southern Pacific Company et al.; No. 9023 (SubNo. 3), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 4), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 5), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 6), Same v. Southern Pacific Company et al.; No. 9023 (SubNo. 7), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 8), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 9), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 10), Same v. Atchison, Topeka & Santa Fe Railway Company et al.; No. 9023 (Sub-No. 12), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 13), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 14), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 15), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 16), William Uhlmann & Company v. Atchison, Topeka & Santa Fe Rallway Company et al.; No. 9023 (Sub-No. 17), T. A. Livesley & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 18), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 19), Same v. Western Pacific Railroad Company et al.; No. 9023 (Sub-No. 20), Emil Schwarz v. Galveston, Harrisburg & San Antonio Railway Company et al.; No. 9023 (Sub-No. 21), A. Magnus Sons Company v. Northwestern Pacific Railroad Company et al.; No. 9023 (Sub-No. 22), E. Clemens Horst Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 23), Burger Brothers Company v. Northwestern Pacific Railroad Company et al.; No. 9023 (Sub-No. 24), E. Clemens Horst Company v. Atchison, Topeka & Santa Fe Railway Company et al.; No. 9023 (Sub-No. 25), Lillienthal Brothers v Atlantic City Railroad Company et al.; No. 9023 (Sub-No. 26), E. Wattenberg Company v. Galveston, Harrisburg & San Antonio Railway Company et al.; No. 9028 (Sub-No. 27), Hugo V. Loewi v. Northwestern Pacific Railroad Company et al.; No. 9023 (Sub-No. 28), British Columbia Hop Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 29), Theodore Rosenwald v. Chicago, Milwaukee & St. Paul Railway Company et al.; No. 9023 (Sub-No. 30), Falk, Wormser & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 31),

complainants in No. 9028 (Sub-Nos. 21, 38, and 45); Isidor Eckstein for complainant in No. 9023 (Sub-No. 30); Emil Schwarz for complainant in No. 9023 (Sub-No. 20); Alfred M. Wattenberg for complainant in No. 9023 (Sub-No. 26); Theodore Rosenwald for complainant in No. 9023 (Sub-No. 29); D. C. Lake for complainant in No. 9023 (Sub-No. 46); Charles S. May for complainant in No. 9023 (Sub-No. 43); Charles Mohr for complainant in No. 9023 (SubNo. 41); Ernest Reichel for complainant in No. 9023 (Sub-No. 44) ; Samuel Hoff for complainant in No. 9023 (Sub-No. 47); Anna A. Johnson for complainant in No. 9023 (Sub-No. 48); John Loesch for complainant in No. 9023 (Sub-No. 23); Luther K. Seltzer for complainants in No. 9023 (Sub-Nos. 37 and 49); Lew Elsas for complainant in No. 9323 (Sub-No. 5); and Max Wolf for complainants in Nos. 9323 and 9323 (Sub-Nos. 1, 2, and 4).

G. H. Baker for Atchison, Topeka & Santa Fe Railway Company and Northwestern Pacific Railroad Company; Elmer Westlake, Charles Franklin, Fred H. Wood, and George B. Hild for Southern Pacific Company, Union Pacific Railroad Company, Illinois Central Railroad Company, and others; Allan P. Matthew for Western Pacific Railroad Company and Denver & Rio Grande Railroad Company; and James B. Coffey for Atchison, Topeka & Santa Fe Railway Company.

R. Walton Moore for Director General of Railroads.

F. W. George & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 32), William H. Fitchard v. Chicago, Milwaukee & St. Paul Railway Company et al.; No. 9023 (Sub-No. 33), E. Clemens Horst Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 34), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 35), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 36), Same v. Southern Pacific Company et al.; No. 9023 (Sub-No. 37), Carl Ullman & Company v. Atchison, Topeka & Santa Fe Railway Company et al.; No. 9023 (Sub-No. 38), A. Magnus Sons Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 39), Worcester Brewing Corporation v. Central California Traction Company et al:; No. 9023 (Sub-No. 40), C. C. Sweeney & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 41), Charles Mohr & Brother v. Southern Pacific Company et al.; No. 9023 (Sub-No. 42), L. D. Jacks v. Central Railroad Company of New Jersey et al.; No. 9023 (Sub-No. 43), Charles S. May Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 44), Baumbach-Reichel Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 45), Newman Brothers v. Southern Pacific Company et al.; No. 9023 (Sub-No. 46), Frank D. Miller v. Western Pacific Railroad Company et al.; No. 9023 (Sub-No. 47), S. S. Steiner v. Southern Pacific Company et al.; No. 9023 (Sub-No. 48), M. M. Cain & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 49), Carl Ullman & Company v. Southern Pacific Company et al.; No. 9023 (Sub-No. 50), Elsas & Pritz v. Southern Pacific Company et al.; No. 9323, Herman Goepper Company v. Southern Pacific Company et al.; No. 9323 (Sub-No. 1), Klaber, Wolf & Netter v. Southern Pacific Company et al.; No. 9323 (Sub-No. 2), Wolf, Netter & Company v. Southern Pacific Company et al.; No. 9323 (Sub-No. 3), E. E. Fingarr v. Western Pacific Railroad Company et al.; No. 9323 (Sub-No. 4), A. Magnus Sons Company v. Southern Pacific Company et al.; No. 9323 (Sub-No. 5), Elsas & Pritz v. Central California Traction Company et al; No. 9323 (Sub-No. 6), Horst Company v. Southern Pacific Company et al.; and No. 9323 (Sub-No. 7), Same v. Southern Pacific Company et al.

52 I. C. C.

REPORT OF THE COMMISSION.

DIVISION 3, COMMISSIONERS CLARK, HALL, AND EASTMAN. BY DIVISION 3:

The complainants allege that the rates charged on various carload and less-than-carload shipments of hops forwarded from various points in California to numerous interstate and foreign destinations between January 24 and November 20, 1912, were violative of sections 1, 2, 3, and 4 of the act and ask for reparation on basis of rates of $1.50 and $2 per 100 pounds, carloads and less than carloads, respectively. By supplemental complaints filed since the hearing in No. 9023 (Sub-Nos. 16, 20, 23, 26, 29, 32, 37, 38, 40, 41, and 43–50), No. 9323, and No. 9323 (Sub-Nos. 1-4 and 6), the Director General of Railroads has been made a party defendant and has answered. No further hearing has been asked or had.

Informal complaints in No. 9023 and Sub-Nos. 1 to 15, inclusive, 22, 33, 34, 35, and 36 were presented within the statutory period by the E. Clemens Horst Company on its own behalf. The formal complaints were filed by the same company as assignee of various corporations, firms, and individuals, consignees of the shipments, who paid the freight charges. In several instances no assignments of the claims in favor of this complainant were presented, and in all cases where assignments were presented they were executed after the expiration of the statutory period. Amendments to the complaints, adding the names of the various consignees as complainants, were offered at the hearing, but these amendments were likewise too late. These claims must be considered barred, with the exception of No. 9023 (Sub-No. 9) and a shipment of 30 bales of hops to the Hausman Brewing Company, of Madison, Wis., in No. 9023 (Sub-No. 33), in which it appears that the consignees deducted the excess freight charges in settlement of their accounts and that the E. Clemens Horst Company actually sustained the damage. In No. 9023 (Sub-No. 29) and in No. 9323 (Sub-No. 5) the complainants were notified February 7, 1916, that reparation would not be awarded on the special docket. The formal complaint was not filed until more than six months later. In No. 9023 (Sub-Nos. 23 and 26) the informal complaints were submitted by B. F. Hall, between whom and the complainants in the formal proceedings no representative relationship is established on the record. The same situation obtains in No. 9023 (Sub-Nos. 31 and 39), in which the informal complaints were submitted by E. Clemens Horst Company. In all four of the claims last mentioned the formal complaints were filed more than two years after the charges were paid, and they are also barred. In No. 9023 (Sub-Nos. 17, 18, 19, and 50) and No. 9323 (Sub-Nos. 3, 6, and 7) no evidence

in support of the claims was offered, and they, together with the claims barred by the statute, will not be further considered. Since the hearing and at complainant's request the complaint in No. 9023 (Sub-No. 11) has been dismissed.

The shipments moved over the defendants' lines, and rates of $1.75 and $2.25 per 100 pounds were applied on the carload and less-thancarload shipments, respectively. For many years prior to January 24, 1912, rates on hops from producing points in Oregon, Washington, and California to eastern points were maintained on an equality. Prior to that date the rates were $1.50 on carload and $2 on lessthan-carload shipments. December 19, 1911, the carriers filed schedules proposing to increase these rates to $1.75 and $2.25, respectively, effective January 24, 1912. Upon protest the schedules naming increased rates from Oregon and Washington points were suspended, but through a misunderstanding the increases were permitted to go into effect from California points of origin. After hearing the increased rates from Oregon and Washington were held to have been justified, and became effective November 20, 1912. In the Matter of Hop Rates, 25 I. C. C., 16.

The reasonableness of the rates is not attacked. It satisfactorily appears from the evidence that California hops directly compete with those produced in Oregon and Washington in the markets at the destinations in the United States which are involved, and in order for complainants in No. 9023 (Sub-Nos. 16, 20, 21, 24, 25, 27, 30, 32, 37, 38, and 40 to 49, inclusive) and No. 9323 and Sub-Nos. 2 and 4 to dispose of their product it was necessary for them to meet the standard prices by a shrinkage equal to the difference in the freight rates. As to the shipments to points in Canada and to London, England, there is not sufficient evidence of damage upon which to base an award of reparation. A willingness to pay reparation was expressed for the defendants.

The issues in this case are substantially similar to those in Mebius & Drescher v. Central California Traction Co., 42 I. C. C., 599, wherein we found the rates on hops from Elk Grove and Sheldon, Cal., to Milwaukee, Wis., and from Wheatland, Cal., to New York, for export, to have been unduly prejudicial, and awarded reparation on the shipments to Milwaukee.

Following the case cited, and upon the facts of record, we find that during the periods covered by the complaints the rates of $1.75 per 100 pounds on carload shipments and $2.25 per 100 pounds on lessthan-carload shipments were unduly prejudicial to the extent that they exceeded $1.50 per 100 pounds, carloads, and $2 per 100 pounds, less than carloads. We further find that on the shipments made to

points in the United States, not barred by the statute of limitations, the complainants have been damaged to the extent of the difference between the charges paid and borne by them and those that would have accrued at the rates herein found nonprejudicial, and that they are entitled to reparation, with interest. The exact amount of reparation due can not be determined upon this record, and the complainants entitled to reparation should prepare statements showing the details of the shipments in accordance with rule V of the Rules of Practice, including the dates on which the charges were paid, which statements should be submitted to the defendants for verification. Upon receipt of statements so prepared and verified we will consider the entry of an order awarding reparation.

In connection with these proceedings there were heard those portions of Fourth Section Applications Nos. 345 and 349, filed by R. H. Countiss, agent, by which authority is sought to continue to charge for the transportation of hops, in carloads and less than carloads, from shipping points in California specified in the complaints rates which are lower than the rates contemporaneously maintained on like traffic from intermediate points. It was stated on behalf of the carriers that these deviations would be eliminated. The applications will be denied.

An appropriate order will be entered.

52 I. C. C.