March 31, 1909. THE CHIEF COMMISSIONER:-The elevators of the applicants are located upon the lines of the Canadian Pacific Railway Company at Winnipeg, and their complaints allege excessive charges made by that company for switching services rendered to the Canadian Northern Railway Company for the movement of cars arriving by the latter line at the St. Boniface transfer track, to the applicants' elevators some three miles distant. The complaints arise with reference to traffic originating at points upon the lines of the Canadian Northern and destined to Fort William or Port Arthur, and which takes the through rate, but is required by applicants for delivery at their elevators in transit upon the stop-over privilege of 1 cent per 100 lbs.

Prior to the general interswitching order of July 8th, 1908, the charge made by the Canadian Pacific Railway Company for the services in question was $5.00 per car, and since that order the charge has been 1 cent per 100 lbs. in and out, so while the applicants formerly paid $10.00 they now pay $12.00 upon a 60,000 lb. car.

The applicants are under the impression that the Canadian Northern Railway Company should be required to absorb some portion of this toll, and that the order of July 8th applied to the class of service here in question.

When the provisions of that order were being considered, there was no intention that it should apply, except at terminals, and it was never intended to have application to movements required to enable milling in transit upon a through rate. The initial carrier becomes entitled to the extra, 1 cent per 100 lbs. above the through rate for the services performed upon its own line, delay in releasing its cars and the like, afterward receiving the grain or product for transmission to its destination at the balance of the through rate. The 1 cent was regarded as a reasonable toll for these privileges to the shippers, and it would not be fair to require that carrier to absorb a portion of a switching service performed by an intermediate carrier that might not only dissipate the 1 cent per 100 lbs. but also the balance of the through

rate.

In the case in hand, the Canadian Northern is required to carry the grain in question, or its product, on to its destination, after being cleaned or ground at Winnipeg, at the balance of the through rate, and it does not seem reasonable that the 1 cent per 100 lbs. it receives for the stop-over privilege it grants should be encroached upon for the purpose of assisting in the payment of a switching charge made by the Canadian Pacific Railway Company for the convenience of the applicants and rendered necessary by reason of their elevators not being on the lines of the Canadian Northern; at any rate it was not present to the mind of the Board that the order of July 8th should apply to such a situation. Winnipeg is not the terminal point to which the grain in question is shipped. The terminal, or point of destination is the lake port to which the grain in question is shipped. It is an intermediate point only. The terminal, or point of destination is the lake port to which the shipment moves upon a through rate.

The interswitching order provides 20 cents per ton as a reasonable toll with $3.00 minimum and $8.00 maximum. These figures were not established as being applicable to the class of service at an intermediate point in connection with traffic that is not joint, but were fixed at what might as all round be regarded reasonable when applied to all carriers performing switching services in order to make delivery at terminal points, and the Board is of opinion that tolls for services performed by an intermediate carrier to enable the shipper to enjoy stop-over privileges must be determined as reasonable or otherwise quite apart from the provisions of the interswitching order.

The Canadian Pacific Railway was represented by counsel at the hearing, and the Board had the advantage of hearing the views of its representatives. No evidence was given of the cost of the service in question, or otherwise.

The Canadian Pacific tariff of 1904 provides for a charge of $3.00 for the service in question. Subsequent tariffs fix the toll at 1 cent per 100 lbs. minimum of $5.00, and this latter is the sum that was charged prior to the order of July 8th. The pro

12-C.RY.C.

visions of that order not being applicable to this service, the charge should not have been made upon the basis provided for in it, but the company should have continued the tolls exacted before its issue. The $5.00 charge may be regarded as reasonable and tariffs should be filed accordingly. Refunds in excess of the $5.00 already paid cannot be directed, as strictly speaking the companies charged the tolls called for by their tariff, although why they were not imposed before the making of the interswitching order did not appear.

The Canadian Pacific Railway Company should be added as a party respondent.

Mr. Commissioner McLean concurred.

CANADA.]

JOINT TARIFF FOREIGN CARRIER.

[BOARD OF RAILWAY COMMISSIONERS.

BRITISH AMERICAN OIL Co. v. GRAND TRUNK RY. Co.

(File No. 7529.)

Classification-"Exception"-Joint tariff-Continuous route-Through rate -Local or special commodity rates-Excessive rates-Foreign and Canadian carriers-Refund-Railway Act, secs. 317, 321, sub-secs. 2, 3, 4, 323, 333, 334, 336, 338.

An application was made to the Board under the foregoing sections of the Railway Act, to ascertain the legal rate on crude oil from Stoy, Indiana, to Toronto.

The Indianapolis Southern Railway Company, on whose line Stoy is a station, filed with the Board on December 19th, 1906, a joint tariff making the joint fifth class rate twenty cents per hundred pounds from Stoy to Toronto.

Prior to January 1st, 1907, crude oil had no classification, but on that date the official classification coming into force in the United States placed it in the fifth class, this classification being used by the Grand Trunk Railway Company.

Prior, however, to the coming into force of this classification the Grand Trunk Railway Company on November 30th, 1906, issued and filed with the Board an "exception" refusing to honour on petroleum and its products the fifth class rate from points in the United States to points in Canada, and provided that on such traffic from frontier or junction points the local or special commodity rates would govern. The Grand Trunk Railway Company admitted that the joint rate was not unreasonable or unprofitable to them and that the local rate was intentionally made excessive to keep out oil from the United States.

Held, 1. That the "exception" filed by the Grand Trunk Railway Company had no effect and the procedure provided by the Railway Act, sec. 338 must govern.

2. That if a railway company in the United States without the approval of the connecting carrier in Canada files a joint tariff in which the latter does not desire to participate, the Canadian company should apply under sec. 338 to have it disallowed, and if this is not done, then the tolls provided in such joint tariff are the only tolls that can be charged until such tariff is superseded or disallowed by the Board.

3. That if the Canadian Railway Company desires any change to be made in any classification used in the United States for such joint tariff, it should apply under sub-sec. 4, sec. 321.

4. That the legal rate chargeable on the shipments in question is twenty cents per hundred pounds and that the Grand Trunk Railway Company should be at liberty to refund the difference between such rate and the sum collected by it.

THIS application was heard at Ottawa on the 6th day of April, 1909.

W. N. Tilley, for the applicant. The Grand Trunk Railway Company filed with the Board a general consent to the joint freight tariff in question giving a rate of twenty cents per hundred pounds on petroleum and its products, issued and filed with the Board by the Indianapolis Southern Railway Company.

The railway company adopted the said joint tariff by accepting and carrying the shipments in question at the said rate.

Supplement "A." to the official classification is relied on as an exception to the joint tariff.

This supplement has no such effect, being an exception to the classification only, was issued before the joint tariff and should have been after, and is not mentioned among the exceptions on the face of the tariff. Under the provisions of sections 336 and 338 of the Railway Act the joint tariff is valid and binding until superseded or disallowed by the Board, which has not done so.

The Board should order the railway company to refund all excesses of payments above twenty cents with interest from the time of payment.

W. H. Biggar, K.C., for the Grand Trunk Railway Company. The railway company did not at any time concur in the said joint tariff, or charge the rates named therein on petroleum and its products.

The rates named in the tariff are not effective to points on the railway in Canada inasmuch as under the Interstate Commerce Act concurrence therein must be given and duly filed.

The notation on the face of the tariff did not mean that fourth class rates did not apply and that fifth class did on shipments to Canada, but that the rates mentioned in the tariff were not to apply to such shipments.

The Indianapolis Southern Railway Company could not by the filing with the Board of such a tariff in any way affect an exception previously filed by the Grand Trunk.

The intention of Parliament as expressed in section 336 of the Railway Act was that the Board should be apprised of the filing of any joint tariff agreed upon between a foreign and Canadian carrier, and the rates to be charged thereunder. No jurisdiction as in section 334 is given the Board to require railway companies to enter into joint tariffs on foreign business.

Where no joint tariffs have been agreed upon, the only lawful through rate is the sum of the locals.

See decisions under Interstate Commerce Act, under the exception "Assent of connecting carrier necessary to establishment of joint rate": In re Clark, 3 I.C.C. Rep. 649, 2 I.C. Rep. 797; New York, New Haven & Hartford Ry. Co. v. Platt, 7 I.C.C. Rep. 323; Receivers of New York & New England Ry. Co., 7 I.C.C. Rep. 323; In re Form and Contents of Rate Schedules, and Authority for Making and Filing Joint Tariffs, 6 I.C.C. Rep. 267, at p. 279, 4 I.C. Rep. 698; Board of Trade of Troy v. Alabama Midland Ry. Co., 6 I.C.C. Rep. 1, at pp. 6, 7 and 8.

The facts are fully set out in the judgment of the Chief Commissioner.

May 19, 1909. THE CHIEF COMMISSIONER:-All railway companies are compelled to furnish to other companies and persons reasonable and proper facilities for forwarding, interchanging and delivering traffic, and the law declares that such facilities shall include, at the request of any other company,