billed these fifteen cars at thirty-two and a half cents, but when its attention was directed to Indianapolis Southern Railway Company's Tariff B-58 (C.R.C. No. 3), the rate was changed by the respondents to twenty cents, and payment in accordance therewith was made by the applicant company. On cars reaching Toronto at a later date, the expense bill shewed a rate of thirty-two and a half cents. On these the applicant company proferred payment of the twenty cent rate. The Grand Trunk Railway Company refused to release these cars except on payment of the thirty-two and a half cent rate, and a little later billed the applicant company for an alleged undercharge of twelve and a half cents on the shipment of the first fifteen cars. The applicant company contends that twenty cents is the legal rate and that there should be a refund of the difference between the thirty-two and a half cent rate and the twenty cent rate, as well as of certain demurrage claims which had to be paid in order to obtain the release of the cars on which the thirty-two and a half cent rate had been charged.

On November 7th, 1907, the Indianapolis Southern Railway Company issued its joint tariff, effective December 9th, (C.R.C. No. A7), purporting to cover points in Canada, and naming the respondents as participating parties, the note to which is as follows: "The rates herein on petroleum and its products will not apply on shipments destined to points in Canada." Presumably this was an attempt to destroy the joint rate established by the tariff of January, 1907, as on December 3rd, 1907, that railway company wrote the applicant company as follows:

·

"We would not have cancelled the fifth class rates had we not been required by the Canadian roads to do so, and should it be the desire of the Grand Trunk or the Canadian Pacific Railway to restore the fifth class basis, we would be perfectly willing to make the restoration."

No exceptions to the statements in this letter were taken by the respondents, so it is fair to infer that the attempt to displace the through rate was made at their instance.

We think, however, the filing of the last mentioned tariff had not the effect supposed; it could have no such effect without reading section 338 out of the Act, for by it upon a joint tariff being filed with the Board, the only tolls that can be charged are those specified therein "until such tariff is superseded or disallowed by the Board." Superseded means "supplanted" or "replaced," therefore, once a joint tariff is filed, unless it is disallowed, it remains in force until replaced by another joint tariff, and it is not open to the carrier filing it to destroy its effect by filing a supplement alleging that the sum of the locals shall be substituted for the joint through rate.

Upon the construction we feel compelled to place upon these sections, it would seem that the only legal rate from Stoy to Toronto upon the commodity since the beginning of 1907, is twenty cents. We are alive to the importance of this interpretation of the Act as it bears upon the classification, and the filing of a joint tariff by a foreign carrier. This holding will not have the effect of permitting the foreign road to fix the tolls of the Canadian carrier without its consent, or of imposing upon it a foreign classification in its entirety, if the Canadian road adopts any portion of it, as provision is made for both these contingences.

First, as to the joint tariff. If a foreign road, without the approval of the Canadian, files a joint tariff which the latter does not desire to participate in, its course is to apply to the Board, under section 338, to have it disallowed, and if this course is not taken, the tolls provided in such joint tariff become, by virtue of section 338, the only tolls that can be charged.

Second, as to the classification. If a Canadian carrier desires any variation or alteration in any classification used in the United States, owing to difference of circumstances in Canada, application may be made to the Board, under section 321, sub-section 4, for any order or direction with reference to such classification that might be thought proper.

In arriving at these conclusions, we are in no way overlooking the argument of Mr. Biggar, for the respondents, that the Board has no jurisdiction to require the foreign carrier to file a joint tariff. The difference in the Act between through traffic moving over domestic roads only, and the like traffic having its origin in the United States, destined to points in Canada, is very apparent, and necessarily so, because, of course, as to the latter traffic Parliament could not confer upon this Board any jurisdiction over the initial carrier, but no trouble arises here over this question as the initial carrier in the case in hand complied with the Railway Act, and filed the joint tariff, thereby placing upon the Canadian company affected the obligation of taking the step above indicated. Nor is the argument based upon the note on the face of tariff C.R.C. No. A3, viz., governed by "The Official Classification and exceptions thereto" being overlooked. Mr. Biggar says this is intended to convey the information that the rates shewn on page 209, tariff No. 806, are not to apply to points in Canada via the Grand Trunk Railway. We do not understand how this note could convey such information, and certainly the interpretation put upon tariff No. A3 by the Indianapolis Southern Railway Company itself, as indicated by its letters above set out, was not that now contended for.

The argument that because the Act to regulate commerce requires formal concurrence to be duly filed by participating roads to joint tariffs, and as no such concurrence was filed by the Grand Trunk Railway Company to this tariff with the Interstate Commerce Commission, it never bound the Grand Trunk Railway Company, can have no effect, because the Railway Act does not require such concurrence, except as to domestic traffic falling within section 333. It may be also noted that in the United States the only thing that has to be filed is "such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission." Section 336 of the Railway Act, which gives rise to the trouble here, is silent as

to concurrence, but of course it is not to be assumed that any foreign railway company would file a joint tariff naming participating carriers, without, before filing, having obtained their concurrence, and if such were done, inadvertently or otherwise, under our Act, it seems the only course open to the objecting carrier would be to apply for its disallowance.

It is argued for the respondents that the whole blame for the tangle here should be placed upon the Indianapolis Southern Railway Company. We do not think so. On March 9th, 1905, the respondents filed with the Board a general concurrence in all joint tariffs which theretofore or thereafter might be issued by other carriers in which the Grand Trunk Railway Company might be named as a party, unless notice to the contrary should be given to the Commission. We do not, however, read this as applying to any joint tariff under section 336, but the filing of such general concurrence might be a convenient practice as to tariffs filed under section 333 to save the participating carriers the trouble of filing concurrence with each joint tariff as it was filed. But when traffic commenced to move under the tariff now in dispute, the respondents themselves supposed the tariff to be on foot, they billed and accepted payment of the first fifteen cars at twenty cents per hundred pounds. It is said this was a mistake, and when discovered, it was rectified. We are not told how or when it was discovered. These tariffs are intended for the guidance of shippers, and they are supposed to be able to ascertain from them what the lawful tolls are. Here we have a case of the applicant company making expenditures and entering into contracts upon the faith of the interpretation put upon the tariff by the initial carrier, traffic moving under the tariff as construed, and such construction adopted by the participating carrier, and then an attempt by the latter to set up an entirely different interpretation at the expense and possible ruination of the industry that attempted to use the tariff promulgated by these carriers.

The applicant company had nothing to do with the making or filing of these tariffs, and is in no way responsible for the confusion that has necessitated two long sittings, two oral and two written arguments, and all this to try to ascertain what the meaning is of all the documents that have been put upon the files of this Board and the Interstate Commerce Commission regarding this matter. Even if the position were left in doubt, it should be resolved in favour of the applicant company, who are in no way to blame for the situation, unless the attempt to ship crude oil into Canada is to be regarded as a blameworthy act.

We find that the legal toll chargeable upon the shipments in question was twenty cents per hundred pounds, and that that toll is still in force, and the respondents should be at liberty to refund the difference between that sum and the amount collected.

Before leaving the case, it is only proper to say that the respondents are entirely absolved of any intentional wrongdoing or violation of the law, and the difficulty has arisen by adopting a practice of attempting to shew non-concurrence, not provided for by the Railway Act.

The Assistant Chief Commissioner and Mr. Commissioner McLean concurred.

CANADA.]

JOINT TARIFF-JURISDICTION.

[BOARD OF RAILWAY COMMISSIONERS.

DAWSON BOARD OF TRADE V. WHITE PASS & YUKON RY. CO. ET AL.

(File No. 2030.)

Jurisdiction-Reasonable tolls-English, Canadian and foreign railway companies Joint_tariff-Filing with Board-Continuous routeThrough traffic-Construction, operation-Control-Traffic by waterForeign port-Railway Act, secs. 2(21), 8(b), 333 (3), 335, 336,-8 & 9 Edw. VII. ch. 32, sec. 11.

The complainants alleged that the respondents, the White Pass & Yukon Ry Co., were charging excessive tolls for transporting traffic by a land and water route (known as the White Pass & Yukon route) from Skaguay in Alaska through a portion of British Columbia to White Horse in the Yukon Territory and thence by water to Dawson.