WILLIAM C. SCOFIELD, DANIEL SHURMER, JOHN TEAGLE, AND CHARLES W. SCOFIELD, PARTNERS UNDER THE FIRM NAME AND STYLE OF SCOFIELD, SHURMER AND TEAGLE; JAMES R. TIMMINS AND ANDREW R. TIMMINS, PARTNERS UNDER THE FIRM NAME AND STYLE OF J. R. TIMMINS & Co.; CHRISTIAN J. WURWAGE, DOING BUSINESS UNDER THE NAME AND STYLE OF THE MANUFACTURERS OIL COMPANY; JOHN W. FAWCETT AND THOMAS F. WRIGHT, PARTNERS UNDER THE NAME AND STYLE OF J. W. FAWCETT & Co.; ALFRED WHITAKER, DOING BUSINESS UNDER THE NAME AND STYLE OF THE BROOKS OIL COMPANY; WILLIAM F. VLIET, WILLARD L. NUTT AND MARTIN P. CASE, PARTNERS UNDER THE NAME AND STYLE OF VLIET, NUTT & Co.; W. CARROLL LAWRENCE, FELIX BURGERT, HENRY C. MEYERS AND AUGUST E. SCHADE, PARTNERS UNDER THE NAME AND STYLE OF THE MERCHANTS' OIL COMPANY; THE EXCELSIOR REFINING COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF OHIO; THE GLOBE OIL COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF OHIO; THE CLEVELAND REFINING COMPANY, A CORPORATION ORGANIZED UNDER THE LAWS OF OHIO; LOUIS C. CARRAN, DOING BUSINESS UNDER THE NAME AND STYLE OF L. C. CARRAN & COMPANY, COMPLAINANTS, V. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY CO., DEFENDANT. Heard January 18th, 1888.-Decided July 19th, 1888. 1. Upon the facts of this case it is found, and held, that there is an unlawful preference given by the carrier, in favor of oil shipments in tank-car lots, as against like shipments in barrels car-load lots, which is ordered to be corrected, and the mode prescribed by which this must be done, giving equal rates on each per pound. 2. It is a common law, and charter duty, of every railway carrier subject to the Act to regulate commerce, to furnish a proper and adequate car equipment for all the reasonable needs of the business it advertises and undertakes to do, and if the carrier fails to do this, to the wrongful injury of the shipper, it is liable in damages therefor, but the statute has not clothed The Interstate Commerce Commission with the jurisdiction to order the carrier to furnish any particular equipment of cars, or in fact any cars at all. It is the duty of such carrier to select and furnish its own equipment of cars, under all the responsibility which the law requires of it in so vital and important a matter, for the public has not undertaken to divide responsibility with the carrier in this respect. 3. The law does not forbid a carrier from obtaining cars for the transportation of freight over its line from other carriers, or car-furnishing companies, but in every such instance the rates of freight must be exactly the same, and none other, as they would be if such cars were owned by the carrier so using them. 4. The law does not forbid a carrier from obtaining cars from a shipper for the transportation of such shipper's freight over its line, but in every such instance, after deducting a reasonable rent published in the tariff as part of the rate and paid by the carrier to the shippers for the use of such cars, the rates must be exactly the same, and none other, as upon freight transported in the same service in the carrier's own cars; and in every such transaction the carrier, at his peril, must see to it that a shipper furnishing his own cars receives no other, or different rates than other shippers who use the cars of the carrier for a similar service. 5. To render a preference of one over another unlawful, under the Act to regulate commerce, it is not necessary that it should be accomplished by any "device" and it is equally true that the ingenuity of man cannot invent a "device" for the perpetration of an unlawful preference on the part of a carrier engaged in interstate commerce, without incurring the penalties prescribed by the statute. 6. In this particular instance, on account of the phenomenal differences in expense of service rendered, the exceptionally high rates on oil in barrels less than car-load lots, as compared with oil in car-load lots are sustained, but the defendant and all other carriers engaged in interstate commerce are notified that there seems to be too great a tendency on their part to make excessive differences in favor of all shipments generally in car-load lots, as against shipments of similar articles in less than car-load lots, and that it would be well for each of them to look to their tariffs in this respect, before the Commission takes further action on this subject. Blanden & Buell, Counsel for Petitioners. George C. Greene, Esq., Counsel for Defendant. REPORT AND OPINION OF THE INTERSTATE COMMERCE COMMISSION. BRAGG, Commissioner : The complaint contains the following averments: That William C. Scofield, Daniel Shurmer, John Teagle, and Charles W. Scofield are partners under the name and style of Scofield, Shurmer and Teagle; that James R. Timmins and Andrew R. Timmins are partners under the name and style of James R. Timmins & Company; that Christian J. Wurwage is doing business under the name and style of The Manufacturers' Oil Company; that John W. Fawcett and Thomas F. Wright are partners under the name and style of J. W. Fawcett and Company; that Alfred Whitaker is doing business under the name and style of the Brooks Oil Company; that William F. Vliet, Willard L. Nutt, and Martin P. Case are partners under the name and style of Vliet, Nutt and Company; that W. Carroll Lawrence, Felix Burgert, Henry C. Meyers, and August C. Schade are partners under the name and style of The Merchants' Oil Company; that the Excelsior Refining Company is a corporation duly organized under the laws of the State of Ohio; that The Globe Oil Company is a corporation duly organized under the laws of the State of Ohio; that The Cleveland Refining Company is a corporation duly organized under the laws of the State of Ohio, and that Louis C Carran is doing business under the name and style of L. C. Carran & Company. The defendant, The Lake Shore and Michigan Southern Railway Company, is a corporation organized under the laws of the State of Ohio, and has its principal office in the city of Cleveland, in said State; that it is consolidated with corporations duly organized in the States of New York, Pennsylvania, Indiana, Michigan, and Illinois, respectively; that as thus consolidated it owns and operates a continuous line of railroad from the city of Buffalo, in the State of New York, through the said city of Cleveland, in the State of Ohio, to the city of Chicago, in the State of Illinois; that said continuous line extends through and reaches places. hereinafter named and others in the States of New York, Pennsylvania, Ohio, Indiana, Michigan, and Illinois; that said railway company is a common carrier upon said line of railroad, engaged in the transportation of passengers and property to and from said city of Cleveland, from and to places without said State of Ohio. Complainants are all engaged in the business of refining, manufacturing, and dealing in petroleum and its products at said city of Cleveland, and in pursuance of said business ship their goods over defendant's said line of railroad to places without said State of Ohio reached by said line of road, its branches and connections. 1st. The defendant has established and published a schedule showing the rates and charges for the transportation of petroleum and its products in barrels upon its said railroad, in car-load lots and in less than car-load lots, and which is now in force thereon. Said rates and charges for less than car-load lots are excessive, unjust and unreasonable; and as evidencing and illustrating said allegations of excessiveness, injustice and unreasonableness, they show that said rates in car-load lots and in less than car-load lots from said city of Cleveland to the places named are as follows, viz.: 2d. The defendant has established and published a schedule showing the rates and charges for the transportation of petroleum and its products in barrels in car-load lots, and in bulk in tank cars upon its said railroad, which is now in force thereon. Said rates and charges for transportation in barrels in car-load lots are excessive, unjust, and unreasonable; and as evidencing and illustrating said excessiveness, injustice, and unreasonableness they show that said rates and charges in barrels in car-load lots and in bulk in tank cars from said city of Cleveland to the places named are as follows, viz: Car-load lots in bulk in To Chicago, in the State of Illinois...... Car-load lots in barrels, per barrel. 38 cts. 50 cts. 30 cts. 25 cts. 34 cts. 46 cts. 3d. The defendant has established and published a schedule of rates and charges for the transportation of petroleum and its products in barrels in car-load lots and in less than car-load lots upon its said railroad, and which is now in force thereon. Said rates and charges constitute and are an undue and unreasonable preference and advantage to the said traffic in car-load lots, and an undue and unreasonable prejudice and disadvantage to said traffic in less than carload lots; and as evidencing and illustrating said undue and unreasonable preference and prejudice and disadvantage, respectively, they show that the said rates and charges in car-load lots, and in less than car-load lots, respectively, from said city of Cleveland to the places named are as follows, viz: 92 To South Bend, in the State of Indiana........ 42 cts. 4th. Defendant has established and published a schedule of rates and charges for transportation of petroleum and its products in bulk in tank cars and in car-load lots in barrels, and in less than car-load lots in barrels upon its said railroad, and which is now in force thereon. Said rates and charges constitute and are an undue and unreasonable preference and advantage to the said traffic in bulk in tank cars. and an undue and unreasonable prejudice and disadvantage to said traffic in car-load lots in barrels and in less than carload lots in barrels; and as evidencing and illustrating said undue and unreasonable preference and prejudice and disadvantage, respectively, they show that the said rates and charges in bulk in tank cars and in car-load lots in barrels and in less than car-load lots in barrels, respectively, from said city of Cleveland to the places named are as follows, viz: |