(Unrttfll ISam Srljonl lOibcarg Cornell University Library KF 22S9.B26 Interstate transportation :a treatise on 3 1924 019 316 706 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019316706 INTERSTATE TRANSPORTATION A TREATISE ON THE FEDERAL REGULATION OF INTERSTATE TRANSPORTATION AND COMMON CARRIERS INCLUDING Jurisdiction of the Interstate Commerce Commission BY .„\P^^^ HARRY C^BARNES Of the Cincinnati Bar INDIANAPOLIS THE BOBBS-MERRILL COMPANY 1910 Copyright 1910 BY HARRY C. BARNES PREFACE. The purpose of this book is to present in a systematic, orderly and practical way the laws, rules and regulations governing the transportation of passengers and property under the Interstate Commerce Act as it now stands. In the attainment of this object the author has carefully examined all the decisions and rules bearing on the subject. The extent of this labor, which has employed nearly two years of the author's time, will be better understood when it is borne in mind that^mpst of the literature on the sub- ject is in fragmentary form'an^ She authorities are distrib- uted through the numerous reports and decisions of the Interstate Commerce Commission, the many rulings promul- gated, from time to time, by that body and the decisions of the United States courts. Chapters on the Sherman Anti-trust Law and on the Em- ployers' Liability Act have been included because of their kindred relation to the general subject and the value of the principles involved. The author desires at this time to express his appreciation of the valuable help rendered him by his brother, Frederick George Barnes, in the preparation of this work. The author invites any criticism or comments on the book that will aid him in improving the work with a view to making a subsequent edition more useful. H. C. B. Cincinnati, May 2, 1910. Ill TABLE OF CONTENTS. CHAPTEB. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. PAGE. Historical Antecedents 1 Genesis and Organization and Internal Agreement of the Interstate Commerce Commission 19 Status of the Interstate Commerce Commission 56 Transportation and Common Carriers subject to the Jurisdiction of the Interstate Commerce Commission. 60 Transportation and Common Carriers not subject to the Jurisdiction of the Interstate Commerce Commission. 117 Classification of Freight and Freight Classifications . . . 138 Freight Rates and Charges 171 Long-and-Short-Haul Clause and Relief from Operation thereof 265 Bills of Lading and Contracts of Shipment 282 Weights and Weighing 29S Equipment, Car Supply and Distribution, Car Shortage. 318 Routes and Routing 360 Refrigeration and Ventilation and Charges therefor . . . 395 Transit Privileges 401 Elevation 423 Contracts between Carriers and Shippers and the Pub- lic in General 428 Terminal Facilities, Regulations and Charges 438 Demurrage or "Car-Service" 457 Payment for Transportation 485 Limitation of Carrier's Liability 492 Free and Reduced-Rate Transportation of Property 496 Allowances by Carriers for Services Rendered or In- strumentalities Furnished by Owners of Property transported . 506 Allowances to Terminal Railroads and Boat Lines owned or Controlled by the Shipper 511 Switch Connections 519 Embargoes 526 Discriminations, Preferences and Advantages 528 Rebates or Concessions 581 Damages and Reparation 593 V VI TABLE OF CONTENTS. CHAPTER. ^^^^; XXIX. Transportation of Explosives 649 XXX. Freight Tariffs or Rate Schedules 681 XXXI. Express Company Freight Tariffs or Rate Schedules.. 786 XXXII. Passenger Fares and Tickets 825 XXXIII. Free and Reduced-Rate Transportation of Passengers.. 857 XXXIV. Passenger Tariffs or Fare Schedules 887 XXXV. Interchange of Traffic between Connecting Carriers and Through or Continuous Transportation 940 XXXVI. Contracts, Agreements and Arrangements between Com- mon Carriers 946 XXXVII. Car Per Diem Charge 951 XXXVIII. Pooling Contracts and Agreements 955 XXXIX. Accounts, Records and Memoranda of Common Car- riers 965 XL. Reports of Carriers to the Interstate Commerce Com- mission 969 XLI. Commodities Clause 981 XLII. Hours-of-Service Law 985 XLIII. Employers' Liability Act 994 XLIV. Sherman Anti-Trust Law 999 XLV. Government- Aided Railroad and Telegraph Companies. 1002 XL VI. Penalties and Forfeitures for Violation of the Law .... 1007 XLVII. Procedure and Practice before the Interstate Commerce Commission 1017 XL VIII. Appendices ' 1052 Index 1167 TABLE OF cases: LIST OF ABBREVIATIONS. C. C. A United States Circuit Court of Appeals Reports. Fed. Rep Federal Reporter, U. S. Circuit and District Courts. I. C. R Interstate Commerce Reports. I. C. C. R Interstate Commerce Commission Reports. Sup. Ct. Rep United States Supreme Court Reporter. U. S United States Supreme Court, from 1791. So cited from 1875. See Dal., Cranch, Wheat., Pet., How., Black, Wallace and Otto. L. ed United States Supreme Court Reports, Lawyers' Edi- tion. L. R. A Lawyers' Reports, Annotated. Con. Rul. Bui Conference Ruling Bulletin of Interstate Commerce. Commission. Tar. Cir Tariff Circular of Interstate Commerce Commission. [References Acme Cement Plaster Co. v. C. & A. Rd. Co. 17 I. C. C. R. 220 119 V. L. S. & M. S. Ry. Co., 17 I. C. C. R. 30 174, 175 212, 223, 224 Advances of Rates from St. Louis to Texas, 11 I. C. C. R. 238 207 Alexander v. C. B. & Q, Rd. Co., 16 I. C. C. R. 103 639 Alleged Disturbances in Pas- senger Rates, In re, 8 I. C. C. R. 71 136 Allen V. C. M. & St. P. Ry. Co., 16 I. C. C. 293 605 Allen & Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. R. 295 619 Allen & Lewis v. Oregon Rd. & Nav. Co., 98 Fed. Rep. 16 213 are to pages.'] Allowances for Transfer of Sugar, In re, 14 I. C. C. R. 619 507 Allowances to Elevators by Union Pacific Rd. Co., In re, 12 I. C. C. R. 86 406, 423 440, 507 Allowances to Elevators by Union Pacific Rd. Co., In re, 14 I. C. C. R. 315 American Bankers' Assn. v. American Express Com- pany, 15 I. C. C. R. 15 American Creosoting Works V. 111. Cent. Rd. Co., 15 I. C. C. R. 160 330, 476 American Express Co. v. United States, 212 U. S. 522 American Fruit Union v. C. N. O. & T. P. Ry. Co., 12 I. C. C. R. 411 424 116 505 636 Vlll TABLE OF CASES. [References are to pages.] American Grass Twine Co. v. C. St. P. M. & 0. Ry. Co., 12 I. C. C. R. 141 619 American Lbr. & Mfg, Co. y. Southern Pacific Co., 14 I. C. C. R. 561 296, 312 313, 315 American National Live Stock Assn. V. T. & P. Ry. Co., 12 I. C. C. R. 32 365 American Warehousemen's Assn. V. 111. Cent. Rd. Co., 7 I. C. C. R. 556 416, 441, 467 704, 710 American & O. Ins. Co. v. 356 Bales of Cotton, 26 U. S., 1 Peters, 511-542 74 Ames-Brooks Co. v. Rutland Rd. Co., 16 I. C. C. R. 479 627 Andrews Soap Co. v. P. C. C. & St. L. Rd. Co., 3 I. C. R. 77 158 Angle V. C. & St. P. Ry. Co., 151 U. S. 1 573 Annapolis W. B. R. R. Co., In re., 1 I. C. R. 315 92 Ann Arbor Rd. Co. v. Rail- road Commission of Ohio, S Nisi Prius Report 233 464 Anthony v. P. & R. Co., H I. C. C. R. 581 180 Anthony Salt Co. v. Mo. Pac. Ry. Co., 5 I. C. C. R. 299 210 Apollon, The, 9 Wheat. (U. S.) 362 458 Application for order on W. G. Brimson, 4 I. C. R. 315 57 Arkansas Fuel Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. R. 95 605 Armour Pkg. Co. v. United States, 153 Fed. Rep. 1 433 583, 584, 781 Armour Pkg. Co. v. United States, 209 U. S. 56 130, 429, 592 Artz V. Seaboard Air Line Ry. 11 I. C. C. R. 458 827, 828 Associated Wholesale Grocers of St. Louis V. Mo. Pac. R. Co., 1 I. C. R. 393 572, 880 Atchison T. & S. F. Rd. Co. V. D. & N. 0. Rd. Co., 110 U. S. 667 232, 364 V. Holmes, 18 Okla. 92 430 Atlanta K. & N. Ry. Co. v. Home, 106 Tenn. 73 437 Augusta & S. R. Co. v. Wrightsville & T. R. Co., 74 Fed. Rep. 523 94 Avery Mfg. Co. v. A. T. & S. F.- Ry. Co., 16 I. C. C. R. 20 215 B Baer Bros. Merc. Co. v. Mo. Pac. Ry., 13 I. C. C. R. 329 74, 86, 623, 979 Baird v. St. L. I. M. & S. R. Co., 18 Fed. Rep. 592 283 V. St. L. I. M. & S. Rd. Co., 41 Fed. Rep. 592 307 Baltimore & O. R. Co. v. Grant, 98 U. S. 398 120 V. Hamburger, 155 Fed. Rep. 849 611, 853 V. United States, 215 U. S. 164 346 Banner Milling Co. v. N. Y. C. & H. R. Rd. Co., 14 I. C. C. R. 398 177 Harden & Swarthout v. L. V. Rd. Co., 12 I. C. C. R. 194 520, 640 Bartles Oil Co. v. C. M. & St. P. Ry. Co., 17 I. C. C. R. 146, 226 TABLE OF CASES. [References are to pages.] Barton v. Barbour, 104 U. S. 126 113 Bates V. Pa. R. R. Co., 2 I. C. R. 715 559 Beatrice Creamery Co. v. 111. Cent. Rd. Co., 15 I. C. C. R. 109 430 Beatrice Moran v. New Or- leans, 112 U. S. 69 67 Beekman Lumber Co. v. K. C. Ry. Co., 17 I. C. C. R. 86 404 V. St. L. & S. W. Ry. Co., 14 I. C. C. R. 532 472 Beggs V. Wabash Rd. Co., 16 I. C. C. R. 208 296, 315 Beblmer v. M. & C. R. R., 6 I. C. C. R. 257 270, 271 Bell Company v. B. & O. S. W. Rd. Co., 9 I. C. C. R. 632 550 Bennett v. M. St. P. & S. St. M. Ry. Co., 15 I. C. C. R. 301 302 Bigbee & Warrior Rivers Pack- et Co. V. M. & 0. Rd. Co., 60 Fed. Rep. 545 547 Big Blackfoot Milling Co. v. Northern Pacific Ry. Co., 16 I. C. C. R. 173 697 Bills of Lading, In re, 14 I. C. C. R. 346 284, 290 Birmingham Pkg. Co. v. T. & P. Ry. Co., 12 I. C. C. R. 29 365 Bitterman v. L. & N. Rd. Co., 207 U. S. 205 573, 852 Blackman, Jr., v. Southern Railway Co., 10 I. C. C. R. 352 446, 710 Black Mountain Coal & Land Co. V. Southern Ry. Co., 15 I. C. C. R. 286 566 Blackwell Milling & Elevator Co. V. M. K. & T. Ry. Co., 12 I. C. C. R. 24 547 Blume & Co. v. Wells, Fargo Co., 15 I. C. C. R. 53 603 Board of Mayor and Aldermen of Bristol v. V. & S. W. Ry. Co., 15 I. C. C. R. 453 208 Board of Trade v. N. C. & St. L. Ry. Co., 8 I. C. C. R. 503 176, 184, 185 Board of Trade of Chatta- nooga V. E. T. V. & G. R. Co., 5 I. C. C. R. 546 273 Board of Trade of Kansas City V. C. B. & Q. Ry. Co., 12 I. C. C. R. 173 408 Board of Trade of Lynchburg v. Old Dominion S. S., 6 I. C. C. R. 632 622 Board of Trade of Troy v. Alabama Midland Ry. Co., 6 I. C. C. R. 1 111, 270 Board of Trade Union v. C. M. & St. P. Ry. Co., 1 I. C. C. R. 608 537 Board of Trade &c. v. N. & W. Ry. Co., 16 I. C. C. R. 12 224 Boering v. C. & O. Rd. Co., 193 U. S. 442 886 Boise Commercial Club v. Adams Express Co., 17 I. C. C. R. 115 203 Boston Chamber of Commerce v. L. S. & M. S. R. Co., 1 I. C. C. R. 436 173 Boston Fruit & Produce Ex- change V. N. Y. X. E. Rd. Co., 5 I. C. R. 1 203 v. N. Y. & N. E. Rd. Co., 4 1. C. C. R. 664 208 BovaiTd Supply Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. R. 56 268, 489 Bowman v. C. & N. W. Ry., 125 U. S. 465 66, 454, 462, 463 TABLE OF CASES. [References Brabham v. A. C. L. Rd. Co., 11 I. C. C. R. 464 184, 828 Brady v. P. R. Co., 2 I. C. C. R. 13i 233 Bregman & Co. v. Pa. Co., 15 I. C. C. R. 474 391 Brennan v. Titusville, 153 U. S. 289 66 Brewer v. C. of Ga. Ry. Co., 84 Fed. Rep. 258 55 Brewer & Hanleiter v. L. & N. Rd. Co., 7 I. C. C. R. 224 184, 273, 274 Brown v. Houston, 114 U. S. 622 66 V. Maryland, 12 Wieat. (U. S.) 419 2, 66 Brownell v. Col. & Cin'ti Mid. R. Co., 4 I. C. R. 285 152, 154, 200 Buchanan v. Northern Pac. Rd. Co., 5 I. C. C. R. 7 190, 192 Buckeye Buggy Co., The, v. C. C. C. & St. L. Ry. Co., 9 I. C. C. R. 620 550 BuUard v. Northern Pacific Rd. Co., 10 Montana, 168 437 Bulte Milling Co. v. C. & A. R. Co., 15 I. C. C. R. 351' 217, 226, 274 Burgess v. Transcontinental Freight Bureau, 13 I. C. C. R. 668 619 Business Men's Assn. v. C. St. P. M. & O. Rd. Co., 2 I. C, C. R. 52 217, 223 Business Men's League v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 318 178, 200, 214 California Commercial Assn. V. Wells, Fargo & Co., 14 I. C. C. R. 422 551 are to pages.] California Commercial Assu. v. Wells, Fargo & Co., 16 I. C. C. R. 458 551 Cambria Steel Co. v. Gr. Nor. R. R. Co., 12 I. C. C. R. 466 299 Canadian Pacific Railway Co., In re, 1 I. C. R. 71 97 Cannon v. M. & O. Rd. Co., 11 I. C. C. R. 537 224 Capehart v. L. & N. R. Co., 3 I. C. R. 278 118 Capital City Gas Co. v. Central V. Ry. Co., 11 I. C. C. R. 104 532 Cardiff Coal Co. v. C. M. & St. P. Ry. Co., 13 I. C. C. R. 460 240, 363 V. C. & N. W. Ry. Co., 13 I. C. C. R. 471 363 Carr v. Northern Pacific Ry. Co., 9 I. C. C. R. 1 202, 324 536, 540, 541, 559, 778 Car Shortage, In re, 12 I. C. C. R. 561 319, 359, 951 Carstens Pkg. Co. v. Northern Pacific Ry. Co., 14 I. C. C. R. 577 312 V. Oregon R. & Nav. Co., 15 I. C. C. R. 482 388, 630 V. Oregon Railroaa & Nav. Co., 17 I. C. C. R. 125 603, 612 Cary v. Eureka Spgs. Ry. Co., 7 I. C. C. R. 286 241 Cassatt V. Mitchell C. & C. Co., 150 Fed. Rep. 32 87 Castle V. B. & O. Rd. Co., 8 I. C. C. R. 33 537 Cator V. Southern Pacific Co., 6 I. C. C. R. 113 572, S55 Cattle Raisers' Assn. v. Ft. W. & D. C. R. Co., 7 I. C. C. R. 513 • 449, 533, 534 TABLE OF CASES. XI [References are to pages.] Cattle Raisers' Assn. v. M. K. & T. Ry. Co., 11 I. C. C. R. 296 180, 207, 223 Cattle Raisers' Assn. of Texas V. C. B. & Q. Rd. Co., 11 I. C. C. R. 277 448 V. C. B. & Q. R. R. Co., 10 I. C. C. R. 83 617 V. G. H. & S. A. Ry. Co., 12 I. C. C. R. 20 365 Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co., 14 I. C. C. R. 606 383 V. C. & S. Ry. Co., 15 I. C. C. R. 546 408 V. C. & S. Ry. Co., 16 I. C. C. R. 387 411 V. C. & S. Ry. Co., 16 I. C. C. R. 629 217 Central Com'l Co. v. M. J. & K. C. Rd. Co., 15 I. C. C. R. 25 316 Central of Ga. Ry. Co. v. Mur- phey, 196 U. S. 194 454, 463 Central Stock Yards Co. v. L. & N. R. Co., 118 Fed. Rep. 113 456 V. L. & N. R. Co., 192 U. S. 568 325 Central Trust Co. v. St. L. A. & F. Ry. Co., 40 Fed. Rep. 420 114 Central Yellow Pine Assn. v. 111. Cent. Rd. Co., 10 I. C. C. R. 505 181, 184, 185, 187, 189, 207, 209, 512, 588, 999 V. V. S. & P. Ry. Co., 10 I. C. R. 193 402, 512, 588, 708, 778 Chamber of Commerce v. C. M. & St. P. Ry. Co., 7 I. C. C. R. 481 195 276 565 Chamber of Commerce of Chattanooga v. Southern Railway Co., 10 I. C. C. R. Ill Chamber of Commerce of Mil- waukee V. C. R. I. & P. Ry. Co., 15 I. C. C. R. 460 Chamber of Commerce of Min- neapolis V. Gr. Nor. Ry. Co., 4 I. C. R. 230 564 Chamber of Commerce &c. v. F. & P. M. Rd. Co., 2 I. C. C. R. 553 548 Chandler v. F. S. W. R., 13 I. C. C. R. 473 121 Charge to Grand Jury, In re, 151 Fed. Rep. 834 67 66 Fed. Rep. 146 861 Charges for Transportation and Refrigeration of Fruit &c.. In re, 10 I. C. C. R. 360 319, 322 11 I. C. C. R. 129 319, 329, 397, 706 Charlotte Shippers' Assn. v. Southern Ry. Co., 11 I. C. C. R. 108 176 Chesapeake & O. Ry. v. Ken- tucky, 179 U. S. 388 576 V. Standard Lumber Co., 174 Fed. Rep. 107 Chicago & A. Ry. Co. v. United States, 156 Fed. Rep. 558 Chicago, B. & Q. Ry. Co. v. United States, 157 Fed. Rep. 830 Chicago Live Stock Exchange V. C. G. W. Ry. Co., 10 I. C. C. R. 428 180, 194 Chicago Lumber & Coal Co. v. Tioga S. E. Ry. Co., 16 I. C. C. R. 323 193, 208, 215, 534 433 507 592 Xll TABLE OF CASES. Chicago & M. Elect. R. R. Co. V. 111. Cent. Rd. Co., 13 I. C. C. R. 20 84, 366 Chicago & N. W. Ry. Co. v. Osborne, 52 Fed. Rep. 912 224 Chicago R. I. & P. Ry. Co. v. Hubbell, 54 Kansas, 232 430 Chicago, St. P. & K. C. R. Co., In re, 2 I. C. C. R. 231 193 Chickasaw Compress Co. v. G. C. & S. Ry. Co., 13 I. C. C. R. 187 193 China & Japan Trading Co. v. Georgia R. R. Co., 12 I. C. C. R. 236 207, 208 Cincinnati Chamber of Com- merce, etc., V. B. & 0. S. W. R. Co., 10 I. C. C. R. 378 440 Cincinnati H. & D. Ry. Co. v. I. C. C, 206 U. S. 142 142, 169 Cincinnati, N. O. & T. P. Ry. Co. V. I. C. C, 162 XJ. S. 184 90, 91, 124, 245, 269, 273, 534 Cist V. M. C. Rd. Co., 10 I. C. C. R. 217 137, 831 City Council of Atchison v. Mo. Pac. Ry. Co., 12 I. C. C. R. 11 562 City Gas Co. v. B. & O. Rd. Co., 11 I. C. C. R. 371 636 City of Danville v. Southern Ry. Co., 8 I. C. C. R. 409 268 City of Spokane v. Nor. Pac. Ry. Co., 15 I. C. C. R. 376 188 Class and Commodity Rates, In re, 11 I. C. C. R. 238 181 Clements v. L. & N. R. Co., 153 Fed. Rep. 979 55, 640, 683 Coe V. Errol, 116 U. S. 517 70, 86, 103 Coffeyville Brick & Tile Co. V. St. L. & S. F. R. R. Co., 12 I. C. C. R. 498 204, 205 [References are to pages.] Cohens v. Virginia, 6 Wheat. (U. S.) 264 76 Colorado Fuel & Iron Co. v. Southern Pacific Co., 6 I. C. C. R. 488 180, 192, 209, 217, 225, 388, 559, 704, 713 Columbia Conduit Co. v. Com., 90 Pa. St. 307 100 Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70 2 Commercial Club v. C. & N. W. Ry. Co., 7 I. C. C. R. 386 55, 436 V. C. R. I. & P. Ry. Co., 6 I. C. R. 647 563 Commercial Coal Co. v. B. & 0. Rd. Co., 15 I. C. C. R. 11 212, 213 Commutation Tickets to School Children, In re, 17 I. C. C. R. 144 835 Complaint of Illinois Central R. R. Co., 12 I. C. C. R. 8 882 Connor v. M. & O. Rd. Co., 11 1. C. C. R. 537 543 Consolidated Forwarding Com- pany V. Southern Pacific Co., 9 I. C. C. R. 182 322, 364, 385 V. Southern Pacific Co., 10 I. C. C. R. 590 208, 975 Contracts of Express Com- panies for the Free Trans- portation of their Men and Material over Railroads, In re, 16 I. C. C. R. 246 883 Cooley V. Board of Port War- dens, 12 How. (U. S.) 299 67 Coomes & McGraw v. C. & St. P. Ry. Co., 13 I. C. C. R. 192 471, 605 Corn Belt Meat Producers' Assn. V. C. B. & Q. Ry. Co., 14 I. C. C. R. 37S 226, 256 TABLE OF CASES. [References Corporation Commission of State of Oklahoma v. C. R. I. & P. Ry. Co., 17 I. C. C. R. 379 941 Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I. C. C. R. 266 107, 121, 781, 957 Councill V. W. & A. R. Co., 1 I. C. C. R. 339 55, 612 V. Western & Atlantic R. Co., 1 I. C. R. 638 576 Cound V. A. T. & S. F. Ry. Co., 173 Fed. Rep. 527 998 Counsil V. St. L. & S. F. Rd. Co., 16 I. C. C. R. 188 391 Covington Stockyards Co. v. Keith, 139 V. S. 128 448 Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204 71, 134 Cowan V. Bond, 39 Fed. Rep. 55 406 Coxe Bros. & Co. v. L. V. R. Co., 3 I. C. R. 460 139, 168, 560 Cozart V. Southern Ry. Co., 16 I. C. C. R. 226 574 Crews V. R. & D. Rd. Co., 1 I. C. R. 703 206 1 r. C. C. R. 401 404 Crosby & Meyers v. Goodrich Transit Co., 17 I. C. C. R. 175 642 Crutcher v. Commonwealth of Kentucky, 141 V. S. 47 67 Cudahy Pkg. Co. v. C. & N. W. Ry. Co., 12 I. C. C. R. 446 465, 707 Curry v. K. & C. P. Ry., 58 Kansas, 6 436 Cutting V. Florida Ry. & Nav. are to pages.] Daish & Sons v. C. D. & C. Ry. Co., 9 I. C. C. R. 513 526, 527 Dallas Freight Bureau v. Austin & N. Rd. Co., 9 I. C. C. R. 68 270 V. G. C. & S. F. Ry. Co., 12 r. C. C. R. 223 222, 223 V. M. K. & T. Ry. Co., 12 I. C. C. R. 427 207, 223, 252 Daniel Ball, The, In re, 10 Wall. (U. S.) 557 70, 71, 85 Daniels v. C. R. I. & P. Ry. Co., 6 I. C. C. R. 458 278, 537 Darling & Co. v. B. & O. Rd. Co., 15 I. C. C. R. 79 273, 274, 275 Davenport v. Southern Ry. Co., 11 I. C. C. R. 650 176 Davies v. 111. Cent. Rd. Co., 16 I. C. C. R. 376 310 Davis V. Gray, 16 Wall. (U. S.) 203 112 Delaware L. & W. R. R. Co. V. I. C. C, 155 Fed. Rep. 512 453 166 Fed. Rep. 498 522, 552 169 Fed. Rep. 894 553 Delaware State Grange' v. N. Y. P. & N. R. Co., 3 I. C. R. 554 199, 541 V. N. Y. P. & N. Rd. Co., 4 I. C. C. R. 588 178, 191, 208 Delaware & Hudson Co. v. Commonwealth of Pennsyl- vania, 2 I. C. R. 222 70 Demurrage Charges on Private Tank Cars, In re, 13 I. C. C. Co., 46 Fed. Rep. 641 941 R. 378 469 XIV .TABLE OF CASES. [References ar Denison Light & Power Co. V. M. K. & T. Ry. Co., 10 I. C. C. R. 337 210 Derr Mfg. Co. v. Penna. Rd. Co., 9 I. C. C. R. 646 160 Detroit Board of Trade v. Grand Trunk Ry. of Canada, 2 I. C. C. R. 315 251, 548 Detroit G. H. & M. Ry. Co. v. I. C. C, 74 Fed. Rep. 803 270, 439 Devoe v. Bridge Co., 3 Am. Law Reg. 79 2 Dewey Bros. Co. v. B. & 0. Rd. Co., 11 L C. C. R. 481 381, 391, 629 Diamond Mills v. B. & M. Rd. Co., 9 r. C. C. R. 311 407, 411 Dielil &c. V. C. M. & St. P. Ry. Co., 16 I. C. C. R. 190 626 Dietz V. Mission Transfer Co., 94 Cal. 92 100 Differential Freight Rates to and from North Atlantic Ports, In re, 11 I. C. C. R. 13 1036 Division of Joint Rates, In re, 10 I. C. C. R. 385 511, 512, 584, 587, 778 Division of Joint Rates to Termina-l Railroads, In re, 10 I. C. C. R. 661 586 Douglas & Co. V. C. R. I. & P. Ry. Co., 16 I. C. C. R. 233 402, 420, 561 Duke V. St. Louis & S. F. R. Ca, 172 Fed. Rep. 684 998 Duluth Log Co. V. C. St. P. M. & O. Ry. Co., 16 I. C. C. R. 38 307 V. M. & I. Ry. Co., 15 I. C. C. R. 192 508 •e to pages.] Duncan v. A. T. & S. F. R. Co., 4 I. C. R. 385 141, 153 6 I. C. R. 85 55, 180, 212, 429, 488, 604, 612, 826, 827 Duncan & Co. v. N. C. & St. L. Ry. Co., 16 I. C. C. R. 590 201 Durousseau, The, v.. United States, 6 Cranch (U. S.), 307 343 Dwight V. Brewster, 1 Pick. (Mass.) 50 63 E East Tennessee, Va. & Ga. Ry. Co. V. I. C. C, 99 Fed. Rep. 61 957 181 U. S. 1 270, 271, 276, 277, 279 Eaton V. C. H. & D. R. Co., 11 I. C. C. R. 619 613, 637, 639, 640 Eau Claire Board of Trade v. C. M. & St. P. Ry. Co., 4 I. C. R. 65 182, 183, 537 Eddleman v. Midland Valley Rd. Co., 13 I. C. C. R. 103 451 Eddy V. LaFayette, 49 Fed. Rep. 807 114 Edmunds v. Ills. Cent. R. Co., 80 Fed. Rep. 78 643 Edwards v. N. C. & St. L. Ry. Co., 12 I. C. C. R. 247 574 El Paso & N. R. Co. v. Gutier- rez, 215 U. S. 87 995 Elvey V. 111. Cent. Rd. Co., 3 I. C. C. R. 652 543 Empire State Cattle Co. v. A. T. & S. F. Ry. Co., 210 U. S. 1 389 Employers' Liability Cases, The, 207 U. S. 463 76,. 122 Enterprise Fuel Co. v. Penna. Rd. Co., 16 I. C. C. R. 219 374 TABLE OF CASES. XV 66 66 Enterprise Mfg. Co. v. Georgia Rd. Co., 12 I. C. C. R. 451 208, 563 Enterprise Transportation Co. V. Pennsylvania R. Co., 12 I. C. R. 326 98, 99, 100, 135, 362, 365, 372 Escanaba Co. v. Chicago, 107 U. S. 678 Eugene Debs, In re, 158 U. S 564 Evans v. N. P. Ry. Co., 6 I. C. C. R. 520 223 Excessive Freight Rates on Food Products, In re, 3 I. C. R. 93 153, 155 Exchange Free Transporta- tion, In re, 12 I. C. R. 40 132, 133, 864 Export East & West of Mis- sissippi River, In re, 8 I. C. C. R. 185 779 Export Rates on Corn, In re, 8 I. C. C. R. 185 566, 779 Export Shipping Company v. Wabash Rd. Co., 14 I. C. C. R. 437 551, 552 Export & Domestic 'Rates, In re, 8 I. C. C. R. 214 781 Express Cases, 117 U. S. 1 325, 327 Express Companies, In re, 1 I. C. R. 677 94 Express Company v. Kountze Bros., 8 Wall. (U. S.) 353 383 F Falls & Co. V. C. R. I. & P. Ry. Co., 15 I. C. C. R. 269 304, 489 Fargo V. Michigan, 121 U. S. 230 67 Farmers' Loan & Trust Co. v. Nor. Pac. Ry. Co., 83 Fed. Rep. 249 114 [References are to pages.] Farmers' Warehouse Co. v. L. & N. Rd. Co., 12 I. C. C. R. 457 620 Farrar v. Southern Ry. Co., 11 I. C. C. R. 632 180, 181 Federal Sugar Refining Co. v. B. & O. Rd. Co., 17 I. C. C. R. 40 507, 589 Fewell V. R. & D. Rd. Co., 7 I. C. C. R. 354 273 Field V. Southern Ry. Co., 13 I. C. C. R. 298 833, 840, 855 Fielder v. M. K. & T. Ry. Co., 42 S. W. 362 455 First National Bank of Bruns- wick V. County of Yankton, 101 U. S. 129 . 74 Fitzgerald v. Fitzgerald & M. Const. Co., 41 Neb. 374 437 Flaccus Glass Co. v. C. C. C. & St. L. Ry. Co., 14 I. C. C. R- 333 205, 384, 630 Flint & Walling Mfg. Co. v. L. S. & M. S. Ry. Co., 14 I. C. C. R. 336 605, 619 Folmer & Co. v. G. N. Ry. Co., 15 I. C. C. R. 33 624 Food Products Investigation, In re, 4 I. C. C. R. 48 209 Form and Contents of Rate Schedules, In re, 4 I. C. R. 698 173, 717 Forster Brothers Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. R. 232 646 Ft. Smith Traffic Bureau v. St. L. & S. F. Rd. Co., 13 I. C. C. R. 651 146, 212 Foster Lumber Co. v. A. T. & S. P. Ry. Co., 15 I. C. C. R. 56 177, 625, 626 V. G. C. & S. F. Ry. Co., 17 I. C. C. R. 385 626 XVI TABLE OF CASES. [References are to pages.] Freeborn v. Smith, 2 Wall. (U. S.) 173 120 Free Transportation by B. & M. R. Co., In re, 3 I. C. R. 717 879 Free Transportation for Ex- press Companies, In re, 16 I. C. C. R. 246 503 Free Transportation of News- paper Employees on Special Newspaper Trains, In re, 12 I. C. C. R. 16 864 Freight Bureau of Cincinnati V. C. N. O. & T. P. Ry. Co., 6 I. C. C. R. 195 182, 223, 644 7 I. C. C. R. 180 181, 206 Freight Rates between Mem- phis & Arkansas Points, In re, 11 I. C. C. R. 180 226, 1036 G Gallogly & Flrestine v. C. H. & D. Ry. Co., 11 I. C. C. R. 1 118, 339, 613, 640 Gamble-Robinson Commission Co. V. C. & N. W. Ry. Co., 168 Fed. Rep. 161 536 Gardner & Clark v. Southern Ry. Co., 10 I. C. C. R. 342 622 General Chemical Co. v. C. & N. W. Ry. Co., 15 I. C. C. R. 349 295, 296, 315 General Electric Co. v. N. Y. C. & H. R. R. Co., 14 I. C. C. R. 237 436, 507, 515, 614 Gentry v. A. T. & S. F. Ry. Co., 13 I. C. C. R. 171 365 Georgia Rough & Cut Stone Co. V. Georgia Rd. Co., 13 I. C. C. R. 401 298, 299, 310 Georgia S. & F. Ry. Co., In re, 13 I. C. R. 134 991 George Tlleston Milling Co. v. Northern Pacific Ry. Co., 8 I. C. C. R. 346 272 Gerber v. Wabash Rd. Co., 63 Mo. App. 145 429 Germain Company v. N. O. & N. B. Rd. Co., 17 I. C. C. R. 22 241, 472, 619 Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 2, 66 Giffin V. Southwest Penn. Pipe Lines, 172 Pa. 580 100 Gilman v. Philadelphia, 3 Wall. (U. S.) 713 3, 66 Gisbourn v. Hurst, 1 Salk. 249 63 Glade Coal Co. v. B. & O. R. Co., 10 I. C. R. 226 178, 540, 543, 556, 613, 637 Gloucester Ferry Co. v. State of Pennsylvania, 114 U. S. 196 66, 136 "Goldwaith" Case, 204 U. S. 403 118 Gordon v. Hutchinson, 1 Watts. & S. 285 63 Grain Shippers' Assn. v. 111. Cent. Rd. Co., 8 I. C. C. R. 158 179, 181, 185, 190, 192, 619 Grand Trunk Railway System, In re, 2 I. C. R. 496 97 Green Bay Business Men's Assn. V. L. S. & M. S. Ry. Co., 15 I. C. C. R. 59 251 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98 429, 430, 437, 455 488, 627 V. Miami S. S. Co., 86 Fed. Rep. 407 370, 944 V. Texas, 204 U. S. 403 70, 103, 118, 119, 421, 829 Gumbel v. Pitkin, 124 U. S. 131 113 TABLE OF CASES. XVll S. F, 245 & P, . Rd. 180 Ry. 58 [References are to pages.] H Henderson Lumber Co. v. K. C. Ry. Co., 16 I. C. C. R. 129 629 Hennepin Paper Co. v. North- ern Pacific Ry. Co., 12 I. C. C. R. 535 384, 630, 631, 632 Hennick, In re, 5 Macky, D. C. 489 67 Herbeck-Demer Co. v. B. & O. R. Co., 17 I. C. C. R. 88 832 Hewins v. N. Y. N. H. & H. Rd. Co., 10 I. C. C. R. 221 826 Hezel Milling Co. v. St. Louis A. & T. H. Rd. Co., 5 I. C. C. R. 57 321 Hill V. N. C. & St. L. R. Co., ' 6 I. C. C. R. 348 182 Hill & Webb v. M. K. & T. Ry. Co., 16 I. C. C. R. 569 228 Hilton Lumber Co. v. W. & W. Rd. Co., 9 I. C. C. R. 17 ;i03, 205, 216, 547 Hitchman Coal & Coke Co. v. B. & O. Rd. Co., 16 I. C. C. R. 512 538 Holbrook v. St. P. M. & M. P. Co., 1 I. C. R. 323 648 Holcomb-Hayes Co. v. 111. Cent. Rd. Co., 12 I. C. C. R. 128 625 Hood & Sons v. D. L. & W. Rd. Co., 17 L C. C. R. 15 70, 86 V. D. & H. Co., 17 L C. C. R. 19 243 Hope Cotton Oil Co. v. Texas & Pacific Ry. Co., 12 I. C. C. R. 266 227 V. T. & P. Ry. Co., 10 I, C. C. R. 696 621, 639 Houston & T. C. Ry. Co. v. Mayes, 201 U. S. 321 349, 357 Houston &c. Co. v. Insurance Co., 89 Texas 1 70 Howard, Admx., v. 111. Cent. Hafley v. St. L. & Co., 15 I. C. C. R Haines v. C. R. I. Cp., 13 I. C. C. H. 214 Haldeman v. Beckwith, 4 Mc- Lean (II. S.) 286 2 Hall V. De Cuir, 95 U. S. 485 66, 71, 576 Hanley v. K. C. S. Ry., 187 U. S. 617 67, 70 Hanna Coal Co. v. Northern Pacific Ry. Co., 16 I. C. C. R. 289 314 Hardenberg, Dolson & Gray v. Northern Pac. Ry. Co., 14 I. C. C. R. 579 204 Harmon v. Chicago, 147 U. S. 396 66 Harp V. C. O. & G. Rd. Co., 125 Fed. Rep. 445 333, 334 Harvard Co. v. Pennsylvania R. Co., 4 I. C. C. R. 212 147, 151, 154, 200, 540 Harvey v. L. & N. R. Co., 3 I. C. R. 793 880 Harwell v. C. & W. R. R. Co., 1 I. C. C. R. 236 176 v. C. & W. Rd. Co., 1 I. C. R. 631 291' Hawkins v. W. & L. E. R. R. Co., 9 I. C. C. R. 212 330 Hays V. Pacific Mail S. S. Co., 58 U. S. 596 67 Heard v. Georgia Rd. Co., 1 L C. C. R. 428 576 Heck V. E. T., Va. & Ga. R. Co., 1 I. C. R. 775 Heeiman v. Beefman Co., 1 Fed. Rep. 145 Henderson v. Mayor, 92 U. S. 83 259 66 Rd. Co., 207 U. S. 463 995 XVlll TABLE OF CASES. [References are to pages.] Howard Mills Co. v. Pac. Ry. Co., 12 I. C. C. R. 259 195 Howell V. N. Y. L. E. & W. R. Co., 2 I. C. R. 162 179 2 I. C. C. R. 272 216 Hurlburt v. L. S. & M. S. R. Co., 2 I. C. R. 81 118, 163, 714 Hussey v. C. R. I. & P. Ry. Co., 13 I. C. C. R. 366 120, 614 Illinois Central Rd. Co. v. I. C. C, 206 U. S. 441 187, 197, 218 Ilwaco Ry. & Nav. Co. v. Ore- gon Short Line & U. N. Ry. Co., 57 Fed. Rep. 673 945 Imperial Coal Co. v. P. & L. B. Rd. Co., 2 I. C. C. R. 618 177, 183, 215, 216 2 I. C. R. 436 278, 548 Import Rate Case, In re, 162 U. S. 197 567 Independent Refiners' Assn. v. W. N. Y. & P. R. Co., 4 I. C. R. 162 319 5 I. C. C. R. 415 957 6 I. C. R. 378 115 Indian Supplies, In re, 1 I. C. R. 22 498 Indianapolis Frt. Bureau v. C. C. C. & St. L. Ry. Co., 15 I. C. C. R. 367 174 Interstate Commerce Commis- sion V. Ala. Midland Ry. Co., 69 Fed. Rep. 22V 176 168 U. S. 144 255, 268, 270, 271, 531, 532, 535, 567, 840 V. A. T. & S. F. Rd. Co., 50 Fed. Rep. 295 267, 270 V. Bellalre, Z. & C. Ry. Co., 77 Fed. Rep. 942 91, 979 V. Brimson, 154 U. S. 447 20, 29 Interstate Commerce Commis- sion V. B. & O. R. Co., 43 Fed Rep. 37 534, 535, 838 145 U. S. 263 1, 535, 537 V. C. B. & Q. R. Co., 103 Fed. Rep. :i49 449 186 U. S. 320 705, 706 V. C. G. W. Ry. Co., 141 Fed. Rep. 1003 178, 181, 185, 535 209 U. S. 108 181, 220, 271, 272, 292 V. C. H. & D. Ry. Co., 146 Fed. Rep. 559, 157, 158, 161 V. Clyde S. S. Co., 181 U. S. 29 267, 270, 271, 276, 279 V. C. N. O. & T. P. Ry. Co., 56 Fed. Rep. 925 281 64 Fed. Rep. 981 58 76 Fed. Rep. 183 57 167 U. S. 479 20, 252, 255, 535 V. C. & A. Rd. Co., 215 U. S. 165 335 V. C. & O. Ry. Co., 128 Fed. Rep. 59 531, 583, 625 V. T. & P. Ry. Co., 57 Fed. Rep. 948 544 V. Detroit &c. Ry. Co., 167 V. S. 633 454, 462 V. D. L. & W. R. Co., 64 Fed. Rep. 723 152 V. 111. Cent. R. Co., 215 U. S. 155 335, 336, 337, 340 V. L. S. & M. S. R. Co., 134 Fed. Rep. 942 170 V. L. & N. R. Co., 73 Fed. Rep. 409 57, 58, 223, 437 118 Fed. Rep. 613 58 190 U. S. 273 71, 207, 271, 277 V. L. S. & M. S. Ry. Co., 134 Fed. Rep. 942 194 V. Reichman, 45 Fed. Rep. 235 102, 583 TABLE OF CASES. XIX [References Interstate Commerce Commis- sion V. S. A. L. Ry. Co., 82 Fed. Rep. 563 91 V. Southern Pacific Co., 123 Fed. Rep. 598 385 132 Fed. Rep. 829 956 V. Southern Ry. Co., 117 Fed. Rep. 741 199 V. Stlckney, 215 U. S. 66 447, 703 V. W. N. Y. & P. R. Co., 82 Fed. Rep. 192 115 V. W. & A. Rd. Co., 88 Fed. Rep. 186 270 Interstate Commierce Commis- sion in Cattle Dealers' Assn. V. Ft. W. & D. C. Ry. Co., 7 I. C. C. R. 555 449 Interstate Remedy Co. v. American Express Co., 16 I. C. C. R. 436 740 Interstate Stock Yards Co. v. Indpls. Union Ry. Co., 99 Fed. Rep. 472 96 Investigation of Grand Trunk Railway System, In re, 2 I. C. R. 496 137 Investigations of Grand Trunk Ry. Co., 3 I. C. R. 87 79, 80 James & Abbott v. Can. Pac. R. Co., 4 I. C. R. 274 152, 161, 563 5 I. C. C. R. 6:s3 224 James & Mayer Buggy Co. v. C. N. 0. & T. P. R. Co., 4 I. C. C. R. 744 273, 281 Jerome Hill Cotton Co. v. M. K. & T. Ry. Co., 6 I. C. C. R. 601 311, 555 Jobbins v. C. & N. W. Ry. Co., 17 I. C. C. R. 297 314 are to pages.] Johnson v. C. St. P. M. & O. Ry. Co., 9 I. C. C. R. 221 184 V. St. L. & S. F. Rd. Co., U I. C. C. R. 73 212, 213, 619 Jolly V. Terre Haute Co., 6 McLean 237 2 Jones V. St. Louis & S. F. Rd. Co., 12 I. C. C. R. 144 55, 451 Jones Bros. v. M. & W. River R. R. Co., 14 I. C. C. R. 139 297 Joynes v. Pa. Rd. Co, 17 I C C. R. 361 604 J. Rosenbaum Grain Co. v. M. K. & T. Ry. Co., 15 I. C. C. R. 499 297 Junod V. C. & N. W. Ry. Co., 47 Fed. Rep. 290 622 Jurisdiction over Water Car- riers, In re, 15 I. C. C. R. 205 68, 79, 105, 107, 108, 122, 135 K Kallispel Lumber Co. v. Great Northern Ry. Co., 16 I. C. C. R. 164 697 Kansas City Hay Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. R. 100 605 Kansas City Transportation Bureau &c. v. A. T. & S. F. Ry. Co., 16 I. C. C. R. 195 173, 183, 215 Kaye & Carter Lumber Co. v. C. M. & St. P. Ry. Co., 14 I. C. C. R. 604 508 V. M. & I. Ry. Co., 16 I. C- C. R. 285 296, 315 17 I. C. C. R. 209 315 Kehoe & Co. v. C- & W. R. Co., 11 I. C. C. R. 166 459, 466, 953 TABLE OS CASES. [References are to pages.] Kehoe & Co. v. N. C. & St. L. Ry. Co., 14 I. C. C. R. 555 447 Keith V. Kentucky Rd. Co., 1 I. C. C. R. 189 448 Kemble v. B. & A. Rd. Co., 8 I. C. C. R. 110 107, 121, 544, 781 Kentucky & Ind. Bridge Co. V. L. & N. R. Co., 37 Fed. Rep. 567 57, 98, 134, 135, 942, 945 2 r. C. R. 351 364 Kentucky Wagon Mfg. Co. v. Ohio & M. Ry. Co., 98 Ky. 152 466 Kidd V. Pearson, 128 U. S. 17 86 Kile & Morgan Co. v. Deep- water Ry. Co., 15 I. C. C. R. 235 419, 624, 632 Kindel v. Adams Express Co., 13 I. C. C. R. 475 217 V. B. & 0. M. Rd. Co., 11 I. C. C. R. 495 200 Kinsley v. B. N. Y. & P. Rd. Co., 37 Fed. Rep. 181 540 Kizer v. Texarkana & Ft. S. Ry. Co., 66 Ark. 348 429 Knuden-Ferguson Fruit Co. v. Mich. Cent. R. Co., 148 Fed. Rep. 968 706 Koch V. Pa. Rd. Co., 10 I. C. C. R. 675 411, 562 Koehler, Ex parte, 30 Fed. 867 70, 85, 118, 129 Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 48 120 Krippendorf v. Hyde, 110 U. S. 276 112 Kurtz V. Pa. Co., 16 I. C. C. R. 410 828, 921 La Crosse M. & J.'s Union v. C. M. & St. P. Ry. Co., 1 I. C. C. R. 629 174, 182, 216 Laning-Harris Coal & Grain Co. V. A. T. & S. F. Ry. Co., 12 I. c' C. R. 479 443 V. Mo. Pac. Ry. Co., 13 I. C. C. R. 154 172, 205, 230 V. St. L. & S. F. R. R. Co., 15 I. C. C. R. 37 490, 608 Larabee Flour Mills Co. v. Mo. Pac. Ry. Co., 74 Kans. 808 136 Larrison v. C. & G. T. R. Co., 1 I. C. R. 369 833, 880 Larrowe Milling Co. v. C. & N. W. Ry. Co., 17 I. C. C. R. 443 238, 612 Larsen Canning Co. v. C. & N. W. Ry. Co., 13 I. C. C. R. 287 391 La Salle Co. v. M. C. Rd. Co., 16 I. C. C. R. 149 269 La Salle & Bureau County Railroad Co. v. C. & N. W. Ry. Co., 13 I. C. C. R. 610 614, 615 Late Corporation of Latter- Day Saints v. United States, 136 U. S. 1 74 Latta V. C. St. P. M. & O. Ry. Co., 172 Fed. Rep. 750 642 Lazarre & Barton Co. v. M. & W. River R. R. Co., 14 I. C. C. 146 297 Lehigh Valley Rd. Co. v. Rai- ney, 112 Fed. Rep. 487 638 Lehmann, Higginson & Co. v. Southern Pacific Co., 3 I. C. R. 80 182, 214, 273 Leloup V. Port of Mobile, 127 U. S. 640 67 TABLE OF CASES. XXI [Hefeiev Leonard v. C. M. & St. P. Ry. Co.,- 12 1. C. C. R. 492 443, V. C. & A. Ry. Co., 2 I. C. R. 599 V. K. C. S. Ry. Co., 13 I. C. C. R. 573 88, 380, V. M. K. & T. Ry. Co., 12 I. C. C. R. 538 License Cases, 5 How. (U. S.) 504 Lindsay Bros. v. B. & O. S. W. R. R. Co., 16 I. C. C. R. 6 Lippman & Co. v. 111. Cent. Rd. Co., 2 I. C. C. R. 584 216, Listman Mill Co. v. C. M. & St. P. Ry. Co., 8 I. C. C. R. 47 Little Rock & M. Rd. Co. v. St. L. I. M. & S. Ry. Co., 59 Fed. Rep. 500 V. St. Louis S. W. Ry. Co., 63 Fed. Rep. 775 4 I. C. C. R. 854 Logan Coal Co. v. Pennsyl- vania Rd. Co., 154 Fed. Rep. 497 Lord V. Goodall, N. & P. S. S. Co., 102 U. S. 541 Loud V. South Carolina Ry. Co., 5 1. C. C. R. 529 178, V. Southern Carolina Ry. Co., 4 I. C. R. 205 112, 604, Louisville N. O. & T. Ry. v. Mississippi, 131 U. S. 587, 86, Louisville & N. R. Co., In re, 1 I. C. C. R. 84 Louisville & N. R. Co. v. Behl- mer, j.75 U. S. 648 92, 93, 245, 268, 270, 271, v. Eubanks, 184 U. S. 27 V. Mottley, 211 U. S. 150 ces are to pages.] Loup Creek Colliery Co. v. 708 Virginia Ry. Co., 12 I. C. C. R. 471 206, 254, 257, 369 294 Lundquist v. Grand Trunk Western 'Ry. Co., 121 Fed. 90, Rep. 915 550 979 Lykes S. &. Line v. Com'l Un- ion, 13 I. C. C. R. 310 79, 106, 132 613 M Macloon v. B. & M. R. R. Co., 9 I. C. C. R. 642 826, 827 V. C. N. & W. Ry. Co., 5 I. C. C. R. 84 599 Manufacturers' & Jobbers' Un- ion &c. V. M. & St. L. R. Co., 4 I. C. C. R. 79 216 Marley & Son v. N. & W. Ry. Co., 11 I. C. C. R. 616 212, 213 Marshall Oil Co. v. C. & N. W. Ry. Co., 14 I. C. C. R. 210 226, 252 Marshall & Michel Grain Co. V. St. L. & S. F. R. Co., 16 I. C. C. R. 385 383 Martin v. C. B. & Q. R. Co., 2 I. C. C. R. 46 176 V. L. & N. R. Co., 9 I. C. C. R. 581 193, 275 Mason v. C. R. I. & P. Ry. Co., 12 I. C. C. R. 61 475 Magon V. Rhinelander, 8 Ben. (U. S.) 163 3 Mattingly v. Penna. Co., 2 I. C. R. 806 65, 85, 118 May V. McNeill, 6 I. C. R. 520 115 Mayor &c. of Wichita v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 558 224 Mayor &c. v. A.' T. & S. F. Ry. Co., 9 I. C. C. R. 534 184, 271 McBride C. & C. Co. v. C. St. P. M. & 0. Ry. Co. 466 274 547 402 942 942 364 321 72 208 615 576 176 176, 275 278 436 XXI 1 TABLE OF CASES. [References ar McCardle, Ex parte, 7 Wall. (U. S.) 514 120 McCaull-Dinsmore v. C. G. W. Ry. Co., 14 I. C. C. R. 527 383 McClelen v. Southern fi.y. Co., 6 I. C. R. 588 266 McGrew v. Mo. Pac. Ry. Co., 8 I. C. C. R. 630 619 McMillan & Go. v. Western Classification Committee, 3 I. C. R. 282 167 McMonan v. G. T. Ry. Co., 3 I. C. C. R. 252 224, 547 McMorran v. Grand Trunk Rd. Co., I. C. R. 604 182 McNeill V. Southern Ry. Co., 202 U. S. 543 453, 454, 455, 456, 462, 463 McNulta V. Lochbridge, Adm., 141 U. S. 327 113 McNuIty V. Batty, 10 Howard 72 120 McRae Terminal Ry. v. South- ern Ry. Co., 12 I. C. C. R. 270 621 Memphis Cotton Oil Co. v. Illinois Central Rd. Co., 17 I. C. C. R. 313 220 Memphis Freight Bureau v. Ft. S. & W. Rd. Co., 13 I. C. C. R. 1 211, 361, 363 Menefee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. R. 49 213 Merchants' Cotton Press Co. V. N. A. Insurance Co., 151 U. S. 368 283 Merchants' Ins. Co. v. Ritchie, 5 Wall. (U. S.) 541 120 Merchants' Union of Spokane Falls y. Northern Pacific R. Co., 5 I. C. C. R. 478 116, 277 Michie v. N. Y. >[. H. & H. R. R. Co., 151 Fed. Rep. 694 439, 454, 463, 466, 953 ■e to pages.] Michigan Buggy Co. v. G. R. 6 I. Ry. Co., 15 I. C. C. R. 299 205, 225 Michigan Congress Water Co. V. Chicago & G. T. Ry. Co., 2 I. C. C. R. 594 321 Milk Producers' Protective Assn. V. D. L. & W. R. Co., 7 I. C. R. 92 72, 276, 872 Miller V. Georgia R. R. Co., 88 Ga. 563 466 y. Mansfield, 112 Mass. 260 466 Milling-in-Transit Rates, In re, 17 I. C. C. R. 113 412 Milwaukee Palls Chair Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. R. 217 444 Minneapolis & Sf. L. Rd. Co. V. Railroad & Warehojise Commission of Minnesota, 186 U. S. 257 205 Missouri K. & T. R. Co. v. Bowles, 1 Ind. Terr. 250 108, 429 V. I. C. C, 164 Fed. Rep. 645 185 V. Stoner, 5 Tex. Civ. App. 50 429 Missouri Pac. Ry. Co. v. T. & P; R. Co., 41 Fed. Rep. 862 267, 268 V. Larabee Flour Mills Co., 211 U. S. 612 531 Missouri & Kansas Shippers' Association v. M. K. & T. Ry. Co., 12 I. C. C. R. 438 58 Mobile Co. v. Kimball, 102 U. S. 691 66 Montague & Co. v. A. T. & S. F. Ry. Co., 17 I. C. C. R. 72 295 Montgomery Freight Bureau V. W. Ry. of Alabama, 14 I. C. C. R. 150 203', 236 Moore v. United States, 29 C. C. A. 269 120 TABLE OF CAS lis. xxni [Ueferences u Morgan v. M. K. & T. Ry. Co., Co., 12 I. C. C. R. 525 204, 231, 236, 237 Morrell v. Union Pacific Ry. Co., 6 I. C. C. R. 121 223, 224 Mosher v. Railroad Co., 127 U. S. 390 852 Mottley V. L. & N. R. Co., 150 Fed. Rep. 406 434 Muskogee Commercial Club v. M. K. & T. Ry. Co., 12 I. C. C. R. 312 422 Myer v. C. C. C. & St. L. Rd. Co., 9 I. C. C. R. 78 147, 152, 169 Myers v. Pa. Co., 2 I. C. R. 403 152, 169 N National Hay Assn. v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264 155, 158, 159, 170, 177, 196, 209, 306, 559 National Wholesale Lumber Dealers Assn. v. A. C. L. Rd. Co., 14 I. C. C. R. 154 508 Nebraska-Iowa Grain Co. v. U. P. R. Co., 15 I. C. C. R. 91 695 New Albany Box & Basket Co. V. Illinois Cent. Rd. Co., 16 L C. C. R. 315 737 Newark Machine Co. v. P. C. C. & St. L. Ry. Co., 16 I. C. C. R. 291 549 New Jersey Fruit Ex. v. C. R; R. of N. J., 2 I. C. R. 84 118 Newland v. Northern Pacific Rd. Co., 6 I. C. C. R. 131 178, 184, 216, 383 New Orleans Cotton Exchange V. C. N. O. & T. P. Ry. Co., 2 I. C. C. R. 375 71, 183 V. 111. Cent. Rd. Co., 3 I. C. C. R. 534 173, 183, ' 198, 223, 224 re to pages.] New Orleans Cotton Exchange V. L. N. O. & T. P. Ry. Co., 4 I. C. C. R. 694 781 New Orleans Live Stock Ex- change V. T. & P. Rd. Co., 10 I. C. C. R. 327 180 Newport *& Cincinnati Bridge Co. V. United States, 105 U. . S. 470 134 Newton Grain Co. v. C. B. & Q. Rd. Co., 16 I. C. C. R. 341 714 New York Board of Trade v. Pennsylvania Rd. Co., 4 I. C. C. R. 447 532, 559, 783 New York Board of Trade & Transportation v. P. R. R. Co., 3 I. C. R. 417 78, 175, 544 New York Central & H. R. R. R. Co. V. I. C. C, 168 Fed. Rep. 131 58, 256, 1033 New York Hay Exchange Assn. V.' P. R. R. Co., 14 I. C. C. R. 178 460 New York, New Haven & H. R. Rd. Co. V. I. C. C, 200 U. S. 361 531, 583 V. Piatt, 7 I. C. C. R. 323 205, 230 New York Produce Exchange V. B. & O. Rd. Co., 7 1. C. C. R. 612 182, 200, 567 V. N. Y." C. & H. R. R. Co., 2 I. C. R. 553 781 New York & N. Ry. Co. v. New York & N. E. Rd. Co., 50 Fed. Rep. 867 944 Niagara, The, v. Cordes, 62 U. S. 21 63 Nicola, Stone & Meyers Co. v. L. & N. R. Co., 14 I. C. C. R. 199 605, 623, 645 Nield V. C. St. P. M. & L. Ry. Co., 12 I. C. C. R. 202 521 XXIV TABLE OF CASES. [References are to pages.] NoUenberger v. M. P. Ry. Co., 15 I. C. C. R. 595 74 Norfolk & Western v. Adams, 90 Va. 393 466 Norfolk R. Co. v. Pennsyl- vania, 136 U. S. 114 67, 86 Norris v. Crocker, 13 How. (U. S.) 429 12C Northern Pacific Ry. Co. v. Adams, .192 U. S. 440 885 O Omaha Cooperage Co. v. N. C. & St. L. Ry. Co., 12 I. C. C. R. 250 224, 547 Orange Bank v. Brown, 3 Wend. 161 63 Oregon Short Line & U. N. Ry. V. Northern Pacific Rd. Co., 51 Fed. Rep. 465 942, 945 4 I. C. C. R. 249 364 Osborne v. C. & N. W. Ry. Co., 48 Fed. Rep. 49 622 Ottinger v. Southern Pacific Co., 1 I. C. R. 607 647 Ottumwa Bridge Co. v. C. M & St. P. Ry. Co., 14 I. C. C. R. 121 626 Ozark Fruit Growers' Assn. v. St. L. & S. F. Rd. Co., 16 I. C. C. R. 106 209, 316 16 I. C. C. R. 134 294 Pabst Brg. Co. v. C. MJ & St. P. Ry. Co., 17 i; C. C. R. 359 620 Pacific Coast Lbr. Mfrs. Assn. V. Northern Pacific Ry. Co., 14 I. C. C. R. 51 365, 372, 374, 380 16 I. C. C. R. 465 254 Pacific Coast S. S. Co. v. Rail- road Commissioners &c., 18 Fed. Rep. 10 , 72 Pacific Purchasing Co. v. C. M. & St. P. Ry. Co., 12 I. C. C. R. 549 295, 296, 314 Page V. D. L. & W. Rd. Co., 6 I. C. C. R. 548 147, 151, 152, 161 6 1. C. C. R. 148 152 Paine Bros. & Co. v. L. V. Rd. Co., 7 I. C. C. R. 218 202, 540 Palmer Dock Hay & Produce Board of Trade v. P. R. R. Co., 9 I. C. C. R. 61 553 Pankey v. R. & D. R. Co., 3 I. C. R. 33 383 3 I. C. C. R. 658 630, 632 Paola Refining Co. v. M. K. & T. Ry. Co., 15 I. C. C. R. 29 227 Parsons v. C. & i>i. W. Ry. Co., 63 Fed. Rep. 903 224, 225 167 XJ. S. 447 224, 547 Party-Rate Tickets, In re, 12 I. C. C. R. 96 ' 571, 840 Passenger Cases, 7 now. (U. S.) 283 2, 66 Passenger Tariffs, In re, 2 I. C. R. 445 836 Passenger Tariffs & Rate Wars, In re, 2 I. C. R. 340 850 Passes to Clergymen and Per- sons engaged in Charitable Work, In re, 15 I. C. C. R. 45 873 Paxton Tie Co. v. Det. South- ern R. Co., 10 I. C. C. R. 422 613, 637, 693 Payne v. M. L. & T. R. & S. Co., 15 I. C. C. R. 185 713 Payne & Gardner Co. v. L. & N. R. R. Co., 13 I. C. C. R. 638 563 Pennsylvania v. F. 0. & P. R. Co., 3 I. C. R. 740 619, 640 TABLE OF CASES. XXV [References are to pages.] Pennsylvania v. Wheeling Bridge Co., 13 How. (U. S.) 518 2 Pennsylvania Millers' State Assn. V. P. & R. Ry. Co., 8 I. C. C. R. 531 93, 253, 277, 446, 464, 710 Pennsylvania R. Co. v. Inter- national Coal Mining Co., 173 Fed. Rep. 1 532, 624 V. Midvale Steel Co., 201 Pa. 624 466 v. Roy, 102 U. S. 457 397 Pennsylvania Refining Co. Ltd. V. W. N. Y. & P. Rd. Co., 208 U. S. 208 542, 599, 618, 638 Penrod Walnut & Veneer Co. V. C. B. & Q. Rd. Co., 15 I. C. C. R. 326 620 Phelps & Co. V. T. & P. Ry. Co., 4 I. C. R. 363 311 6 I. C. R. 36 92, 488, 555, 705 Philadelphia &c. R. Co. v. I. C. C, 174 Fed. Rep. 687 533 Phillips V. N. Y. & Boston Despatch Express Co., 15 I. C. C. R. 631 568 Phillips, Bailey & Co. v. L. & N. Rd. Co., 8 I. C. C. R. 93 567 Pickard v. Pullman Southern Car Co., 117 U. S. 34 67 Piedmont Mfg. Co. v. Colum- bia & G. R. Co., 19 S. C. 355 63 Pilant V. A. T. & S. F. Ry. Co., 15 I. C. C. R. 178 625 Pittsburgh, Cincinnati & St. L. Ry. Co. V. B. & O. Rd. Co., 3 I. C. C. R. 465 535, 838 Pittsburg Plate Glass Co. v. P. C. C. & St. L. Ry. Co., 13 I. C. C. R. 87 544 Pitts & Sons V. St. L. & S. F. Rd. Co., 10 I. C. C. R. 684 487, 614, 684, 688 Planters' Compress Co. v. C. C. C. & St. L. Ry. Co., 11 I. C. C. R. 382 160, 200, 202, 540 Planters' Gin & Compress Co. V. Y. & M. V. Rd. Co., 16 I. C. C. R. 131 273, 275 Plessy V. Ferguson, 163 U. S. 537 576 Ponca Milling Co. v. M. K. & T. Ry. Co., 12 I. C. C. R. 26 547 Pooling Freights, In re, 115 Fed. Rep. 588 955 Poor Grain Co. v. C. B. & Q. Ry. Co., 12 I. C. C. R. 418 391, 428, 430, 605, 615, 627, 629, 630 12 I. C. C. R. 469 382, 624, 694 Pope Mfg. Co. V. B. & O. Rd. Co., 17 I. C. C. R. 400 315 Porter v. St. L. & S. F. Rd. Co., 15 I. C. C. R. 1 253, 469, 713 Port Wardens Case, 12 How. (U. S.) 319 453, 462 Post V. Southern Railway Co., 103 Tenn. 184 386 Potter Mfg. Co. v. C. & G. T. R. Co., 5 I. C. C. R. 514 308 Poughkeepsie Iron Co. v. N. Y. C. & H. R. Rd. Co., 4 I. C. C. R. 195 548 Powhatan Coal & Coke Co. v. N. & W. Ry. Co., 13 I. C. C. R. 69 331 Pratt Lumber Co. v. C. I. & L. Ry. Co., 10 I. C. C. R. 29 251 Prescott & A. C. Rd. Co. v. A. T. & S. F. Rd. Co., 73 Fed. Rep. 438 370 Preston v. C. & O. Rd. Co., 16 I. C. C. R. 565 383 Preston & Davis v. D. L. & W. R. Co., 12 I. C. R. 114 439, 453 XXVI TABLE OF CASES. [References Procter & Gamble Co. v. C. H. & D. Rd. Co., 4 I. C. C. R. 87 159, 210 9 I. C. C. R. 440 147, 307 Proposed Advances In Freight Rates, In re, 9 I. C. R. 382 185, 190 Providence Coal Co. v. Provi- dence & W. Rd. Co., 1 I. C. C. R. 107 540 Publication and Piling of Tar- iffs, In re, 10 I. C. C. R. 55 781 Pueblo Transportation Co. v. Southern Pacific Co., 14 I. C. C. R. 82 628, 694 Pullman Palace Car Co. v. Missouri Pacific R. Co., 115 U. S. 587 325 Pyle V. E. Tennessee, Va. & Ga. R. Co. 1 I. C. C. R. 473 148, 149 1 I. C. R. 767 139, 160, 560 Q Quimby v. Me. Cent. Rd. Co., 13 I. C. C. R. 246 564 R Racine-Sattley Co. v. C. M. & St. P. Ry. Co., 16 I. C. C. R. Rahway Valley R. R. Co. v. D. L. & W. R. R. Co., 14 I. C. C. R. 191 521 Railroad Commission v. L. & N. R. Co., 10 I. C. C. R. 173 325 V. S. F. & W. R. Co., 5 I. C. C. R. 13 103 V. W. & L. E. Rd. Co., 12 I. C. C. R. 398 55 Railroad Commission of Flor- ida V. S. F. & W. Ry. Co., D I. C. C. R. 13 203, 618 are to pages.] Railroad Commission of Geor- gia V. Clyde S. S. Co., 4 I. C. R. 120 82, 90, 115 5 I. C. C. R. 324 270, 276 Railroad Commissioners of Kentucky v. C. N. O. & T. R. Co., 7 I. C. C. R. 380 225 V. L. & N. R. Co., 10 I. C. C. R. 173 54, 364, 943 Railroad Commission of Ohio V. Hocking Valley R. Co., 12 I. C. C. R. 398 335, 579, 602 Railroad Commission of Wis- consin V. C. & M. V. R. Co., 16 I. C. C. R. 84 226 Railroad-Telegraph Compan- ies, In re, 12 I. C. C. R. 10 874 Railroad & Warehouse Com- missioners V. Eureka Springs Ry. Co., 7 I. C. C. R. 69 203, 828 Rail & River Coal Co. v. B. & O. Rd. Co., 14 I. C. C. R. 86 335, 340, 351, 560 Rates from St. Louis to Texas Points, In re, 11 I. C. C. R. 238 189 Rates of Mobile &c. R. Co., In re, 9 I. C. C. R. 405 185 Rates on Corn and Products, 314 In re, 11 I. C. C. R. 227 194 Rates & Practices of M. & O. H. Co., In re, 9 I. C. R. 373 405, 708 Raworth v. Northern Pacific R. Co., 5 I. C. R. 234 116 Raymond v. C. M. & St. P. Ry. Co., 1 I. C. R. 627 537 Rea V. M. & O. R. Co., 7 I. C. C. R. 43 159, 382, 560, 693 Red Cloud Mining Co. v. Sou. Pac. Co., 9 I. C. C. R. 216 429 TABLE OF OASES. XXV 11 [References are to pages.] Red Rock Fuel Co. v. B. & O. Rd. Co., 11 I. C. C. R. 438 521, 579 Releaseu Rates, In re 13 I. C, C. R. 550 283, 494 Religious Teachers, In re, 1 I. C. R. 21 873 Rend v. C. & M, V. Ry. Co., 2 I. C. C. R. 540 206 Reynolds v. W. N. Y. & P. R. Co., 1 I. C. R. 685 212 Rhodes V. Iowa, 170 U. S. 412 453, 454, 462, 463 Rhode Island Egg & Butter Co. V. L. S. & M. S. Ry. Co., 6 I. C. R. 176 161 Rice V. Cincinnati &c. R. Co., 5 I. C. C. R. 193 194, 348, 542 V. Georgia Rd. Co., 14 I. C. C. R. 75 308 V. L. & N. R. R., 1 I. C. C. R. 503 508 1 I. C. R. 722 319, 328 Rice, R. & W. V. N. Y. & P. Rd. Co., 2 I. C. C. R. 389 206, 547 V. W. N. Y. & P. Rd. Co., 2 I. C. R. 298 295 4 I. C. C. R. 131 322, 542, 556 Richmond Elevator Co. v. P. M. Rd. Co., 10 I. C. C. R. 629 332, 452, 556, 637 Riddle, Dean & Co. v. B. & O. R. Co., 1 I. C. C. R. 608 527 V. N. Y. L. E. & W. R. Co., 1 I. C. R. 787 558 V. P. & L. E. R. Co., 1 I. C. C. R. 374 331 1 I. C. R. 773 49 Right of Railroad Companies to Exchange Free Transpor- tation with Local Transfer and Baggage Express Com- panies, In re, 12 I. C. C. R. 40 883 Riverside Mills v. A. C. L. R. Co., 168 Fed. Rep. 987 1, 493 Robbins v. Taxing District of Shelby County, Tenn., 120 U. S. 489 67 Rock Hill Buggy Co. v. South- ern Ry., 11 I. C. C. R. 233 267, 271 Rogers & Co. v. P. & R. R. Co., 12 X. C. C. R. 308 558, 612, 613, 640 Roman-Oolitic Stone Co. v. Vandalia Rd. Co., 13 I. C. C. R. 115, 569 306 Royal Brg. Co. v. Adams Ex- press Co., 15 I. C. C. R. 255 568 Royal Coal & Coke Co. v. Southern Ry. Co., 13 I. C. C. R. 441 338 Ruttle V. P. M. R. R. Co., 13 I. C. R. 179 330 S Saginaw Board of Trade v. Grand Trunk R. Co., 17 I. C. C. R. 128 246, 251 St. Clair County v. Interstate Sand & Car Transfer Co., 192 U. S.' 454 136 St. Louis Hay & Grain Co. v. C. B. & Q. R. Co., 11 I. C. C. R. 82 421, 452, 466 V. 111. Cent. Rd. Co., 11 I. C. C. R. 486 205, 416 V. M. & O. Rd. Co., 11 I. C. C. R. 90 205, 407, 459, 561 St. Louis Millers' Assn., In re, 1 I. C. C. R. 20 420 St. Louis & S. P. R. Co. V. Hadley, 168 Fed. Rep. 317 185 V. Ostrander, 66 Ark. 567 429 xxvm TABLE OF CASES. [References are to pages.] St. Louis S. W. R. Co. V. Car- den, 34 S. W. 145 437 San Antonio & A. P. R. Co. v. Clements, 49 S. W. 913 429 San Bernardina Board of Trade v. A. T. & S. F. R. Co., 3 I. C. R. 138 218 4 I. C. C. R. 104 277 Savannah Bureau of Freight & Transp. v. Charleston & S. R. Co., 7 I. C. C. R. 601 205, 828 Savannah Freight Bureau v. L. & N. R. Co., 8 I. C. C. R. 377 565 Savannah F. & W. R. Co. v. Bundick, 94 Ga. 775 429 Savery & Co. v. N. Y. C. & H. R. R. Co., 2 I. C. R. 210, 2 I. C. C. R. 338 570, 881 Schumacher v. C. & N. W. Ry. Co., 207 111. 199 466 Schumacher Milling Co. v. C. R. I. & P. R. Co., 6 I. C. C. R. 61 139, 140, 147, 162, 167, 168, 193, 560 4 I. C. R. 373 167 Schwager & Nettleton v. Gr. Nor. Ry. Co., 12 I. C. C. R. 521 445, 710, 711 Scofield V. L. S. & M. S. Ry. Co., 2 I. C. C. R. 90 200, 319, 3^4, 328, 348, 508 Shamberg v. D. L. & W. Rd. Co., 4 I. C. C. R. 630 584 Shiel & Co. V. 111. Cent. R. Co., 12 I. C. C. R. 210 410, 561, 625, 708 Shinkle, Wilson & Kreis Co. v. L. & N. R. R. Co., 67 Fed. Rep. 690 57 Shippers' Union of Phoenix v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 250 273 Shippers' & Receivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. R. 264 188 Sidman v. R. & D. Rd. Co., 3 I. C. C. R. 512 569, 832 Sinnot v. Davenport, 22 How. (U. S.) 227 2, 66 Slatter v. Northern Pac. R. Co., 2 I. C. R. 243 884 Sligo Iron & Stone Co. v. A. T. & S. F. R. Co., 17 I._ C. C. R. 139 ' 585 Smeltzer v. St. L. & S. F. R. Co., 158 Fed. Rep. 649 493 Smith V. Nor. Pac. R. Co., 1 I. C. R. 611 569, 881 Smyth V. Ames, 169 U. S. 466 183, 185, 197 Snook V. C. R. Co. of N. J., 17 I. C. C. R. 375 451 "Social Circle" Case, 162 U. S. 184 90, 91, 269, 273 Society of A. F. & O. H. v. U. S. Ex. Co., 12 I. C. C. ii. 121 178 Solvay Process Co. v. D. L. & W. R. Co., 14 I. C. C. R. 246 507, 515 Sondheimer Co. v. 111. Cent. R. Co., 17 I. C. C. R. 60 246 South Canon Coal Co. v. C. & S. R. Co., 17 I. C. C. R. 286 213 South Carolina v. Gaillard, 101 U. S. 437 120 Southern Indiana Exp. Co. v. United States Exp. Co., 92 Fed. Rep. 1022 94 Southern Pacific Co. v. Colo- rado F. & I. Co., 101 Fed. Rep. 779 196 V. I. C. C, 200 U. S. 536 229, 385, 964 TABLE OF OASES. XXIX Southern Pine Lumber Co. v. Southern R. Co., 14 I. C. 0. R. 195 623 Southern Ry. v. Harrison, 119 Ala. 539 429, 430 V. Tift, 206 U. S. 428 181, 188, 610 V. Greenboro Ice & Coal Co. 134 Fed. Rep. 82 455 V. St. Louis Hay & Grain Co., 214 U. S. 297 407 V. Wilcox, 99 Va. 394 ' 429 Southern R. & Steamship Assn., In re, 1 I. C. C. R. 31 210, 211 Spillers & Co. v. L. & N. R. Co., 8 I. C. C. R. 364 704 Spratlin v. St. L. S. W. R. Co., 76 Arkansas, 82 437 Sprigg V. B. & O. R. Co., 8 I. C. C. R. 443 833, 855 Springer v. El Paso & S. W. R. Co., 17 I. C. C. R. 322 296 Squire & Co. v. M. C. R. Co., 3 I. C. R. 515 549 Standard Lime & Stone Co. v. Cumberland Valley R. Co., 15 I. C. C. R. 620 320, 396, 564 Star Grain & Lumber Co. v. A. T. & S. F. R. Co., 14 I. C. C. R. 364 565, 948 17 I. C. C. R. 338 512, 513, 514 State V. A. T. & S. F. R. Co., 176 Mo. 687 420, 455 V. C. St. P. M. & O. R. Co., 40 Minn. 267 72 Sternberger v. Cape Fear & Y. Valley R. Co., 29 S. C. 510 72 Stock Yards Cotton & Linseed Co. V. C. M. & St. P. Ry. Co., 16 L,C. C. R. 366 237 V. M. K. & T. Ry. Co., 17 I. C. C. R. 295 620 [References are to pages.] Stoutenburgh v. Hennick, 129 U. S. 141 67 Stowe-FuUer Co. v. Pa. Co., 12 I. C. C. R. 216 146, 195 Struthers-Wells Co. v. Penna. Rd. Co., 14 I. C. C. R. 291 383 Sufeern, Hunt & Co. v. I. D. & W. R. Co., 7 I. C. C. R. 255 298, 306, 309, 430, 703, 704 Sunderland Brothers Co. v. P. M. R. R. Co., 16 1. C. C. R. 450 222 Sunnyside Coal Mining Co. v. D. & R. G. R. R. Co., 16 I. C. C. R. 558 414, 627 Swift & Co. V. C. & A. Rd. Co., 16 I. C. C. R. 426 624 Tariffs and Classifications of A. & W. P. R. R. Co., 3 I. C. C. R. 24 176 Taylor v. Carryl, 20 How. (U. S.) 583 112 Tayntor Granite Co. v. M. & W. River R. R. Co., 14 I. C. C. R. 136 297 Texas Cement Plaster Co. v. St. L. & S. F. Rd. Co., 12 I. C. C. R. 68 636 Texas & Pacific R. Co. v. Cox, 145 U. S. 593 113 V. Abilene Cotton Oil Co., 204 U. S. 426 55, 346, 429, 596, 610, 623 V. Cisco Oil Mill, 204 U. S. 449 692 V. Clarke, 4 Tex. Civ. App. 611 92 V. I. C. C, 162 U. S. 197 45, 58, 65, 81, 117, 128, 193, 225, 531, 535, 536, 544, 547, 567 XXX TABLE OF CASES. [References are to pages.] Texas & Pacific R. Co. v. Mugg, 202 U. S. 242 429, 488, 627, 628 Thatcher v. Pltchburg R. Co., 1 I. C. R. 356 269 Thatcher Mfg. Co. v. N. Y. C. & H. R. Rd. Co., 16 I. C. C. R. 126 630 Thomas P. Sprigg v. B. & O. R. Co., 8 I. C. C. R. 443 999 Thompson v. Pennsylvania R. Co., 10 I. C. C. R. 640 332 Through Passenger Routes, In re, 16 I. C. C. R. 300 365, 367 Through Routes &c. Rates, In re, 13 I. C. R. 163 172, 173, 234, 361, 362, 412, 778 Thurber v. N. Y. C. & H. R. R. Co., 2 I. C. R. 742 146, 154, 156, 159, 200 3 I. C. C. R. 473 177, 178, 179, 190 Tift V. Southern Ry., 123 Fed. Rep. 789 196 138 Fed. Rep. 753 154, 188 10 I. C. C. R. 548 181, 187, 189, 207, 999 Tileston Milling Co. v. North- ern. Pacific R. Co., 8 I. C. C. R. 346 222 Topeka Banana Dealers Assn. V. St. L. & S. F. R. Co., 13 I. C. C. R. 620 302, 509 Tozer v. United States, 52 Fed. Rep. 917 224 Traders' & Travelers' Union V. P. & R. Rd. Co., 1 I. C. C. R. 122 54 V. P. & R. Ry. Co., 1 I. C. R- 371 55, 436 Trades League of Philadelphia V. P. W. & B. K. R. Co., 8 I. C. C. 368 158 Traer, Receiver, v. C. B. & Q. R. Co., 14 I. C. C. R. 165 339 -V. C. & A. R. Co., 13 L C. C. R. 451 335 Traffic Bureau, Merchants' Ex- change &c. V. C. B. & Q. R. Co., 14 I. C.C. R. 317 423, 560 Transportation of Immigrants from New York, In re, 10 I. C. C. R. 13 961 Transportation of Salt, In re, 10 'l. C. C. R. 1 586 10 I. C. C. R. 148 514 Transportation & Refrigera- tion of Fruit, In re, 10 I. C. C. R. 360 325, 396, 706 11 I. C. C. R. 129 396 Troy Case, 168 U. S. 144 567 Truck Farmers' Assn. v. N. E. R. Co. of S. C, 6 I. C. R. 295 319, 399 Tyler, Ex parte, 149 U. S. 164 113 U Underbilling, In re, 1 I. C. C. R. 633 585 Union Pacific R. Co. v. Good- ridge, 149 U. S. 680 188 United States v. A. T. & S. F. Ry. Co., 142 Fed. Rep. 176 1000 163 Fed. Rep. 11 486 V. Belt Line R. R. Co., — C. C. A. 7th Circuit 245 V. Boisdore, 8 Howard, 121 120 V. B. & O. R. Co., 165 Fed. Rep. 113 346, 557 V. Chicago & Alton Ry. Co., 148 Fed. Rep. 646 583, 590, 688 V. C. I. & L. Ry. Co., 163 Fed. Rep. 114 487, 540 V. Coombs, 12 Pet. (U. S.) 72 2, 3 TABLE OF CASES. XXXI [References a United States v. C. & M. V. R. Co., 127 Fed. Rep. 785 535 V. C. & N. R. Co., 157 Fed. Rep. 321 245 V. C. & N. W. R. Co., 127 Fed. Rep. 785 839 V. De Coursey, 82 Fed. Rep. 302 114 V. D. L. & W. R. Co., 40 Fed. Rep. 101 943 152 Fed. Rep. 269 71, 584 V. Hanley, 71 Fed. Rep. 37 535 V. Illinois Terminal R. Co., 168 Fed. Rep. 546 96, 244, 684 V. Jackson, 4 N. Y. Leg. Obs. 450 3 V. James Morrison, The, 1 Newb. 241 3 V. Joint-Traffic Assn., 171 U. S. 505 1001 V. McFarland, 20 App. D. C. 552 76 V. M. C. R. Co., 122 Fed. Rep. 544 55, 59 V. Mellen, 53 Fed. Rep. 229 224 V. Morrison, 4 N. Y. Leg. Obs. 333 3 V. Morsman, 42 Fed. Rep. 448 94 V. Moseley, 187 U. S. 322 26 V. N. Y. C. & H. R. Rd. Co., 153 Fed. Rep. 630 779 V. N. & W. Ry. Co., 109 Fed. Rep. 831 331, 558 143 Fed. Rep. 266 557 V. Pennsylvania Rd. Co., 153 Fed. Rep. 625 584 V. Pope, 1 Newb. 256 3 V. Railroad Bridge Co., 3 McLean, 517 3 V. Seaboard Ry. Co., 82 Fed. Rep. 563 92 re to pages.] United States v. Standard Oil Co., 148 Fed. Rep. 719, 454, 463 492, 583, 590 V. Standard Oil Co. of In- diana, 155 Fed. Rep. 305 87 V. Tozer, 39 Fed. Rep. 369 534, 540, 548 V. Trans-Missouri Freight Assn., 166 U. S. 290 963, 1000, 1001 V. Vacuum Oil Co., 153 Fed. Rep. 598 583 V. Wells-Fargo Express Co., 161 Fed. Rep. 606 95, 505, 533 V. Williams, 159 Fed. Rep. 310 1008 V. Wood, 145 Fed. Rep. 405 103 United States Express Co. v. Kountze Bros., 8 Wall. (U. S.) 353 382 United States, ex rel. Attorney, V. Delaware & Hudson Co., 213 U. a. 366 981 Interstate Commerce Com- mission V. Chicago, K. & S. R. Co., 81 Fed. Rep. 783 979 V. Seaboard Ry. Co. of Alabama, 85 Fed. Rep. 955 980 Kingwood Coal Co. v. W. V. N. R. Co., 125 Fed. Rep. 252 337, 338, 557 Morris v. D. L. & W. Rd. Co., 40 Fed Rep. 101 327 Northwestern Warehouse Co. V. O. R. & Nav. Co., 159 Fed. Rep. 975 340 United States Fisheries Com- mission, In re, 1 I. C. C. R. 21 497 XXX] 1 TABLE OP CASES. [References are to pages.] Unlawful Charges on Vege- tables &c. V. S. F. & W. Ry. Co., 8 I. C. C. R. 585 311 Unlawful Rates of Cotton, In re, 8 I. C. C. R. 121 69, 405 Unlawful Rates in Transpor- tation of Grain, In re, 7 I. C. C. R. 240 209 Valley Flour Mills v A. T. & S. F. Ry. Co., 16 I 0. C. R. 73 274, 564 Vancouver, The, 18 Int. Rev. Rec. 103 3 Van Patten v. C. M. & St. P. Ry. Co., 81 Fed. Rep. 545 618 Veazie v. Moore, 14 How. (U. S.) 568 3 Vermont State Grange v. B. & L. Rd. Co., 1 I. C. C. R. 158, J. I. C. R. 500 95, 278 Victor Fuel Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. 119 711 Voorhees v. A. C. L. Rd. Co., 16 I. C. C. R. 42 219 W Wabash, St. Louis & Pacific R. Co. V. Illinois, 118 U. S. 557 16, 67, 71, 86, 454, 463 Walsh V. N. Y. N. H. & H. R. Co., 173 Fed. Rep. 494 996 Ward V. Maryland, 12 Wallace, 418 5 Warner v. N. Y. C. & H. R. Co., 4 I. C. C. R. 32 151, 153, 154 Warren-Ehret Co. v. C. R. R. of N. J., 8 I. C. C. R. 598 225, 226 Warren Mfg. Co. v. Southern R. Co., 12 I. C. C. R. 381 208, 999 Washer Grain Co. v. Mo. Pac. R. Co., 15 I. C. C. R. 147 59, 112, 594 Washington Broom & W. W. Co. V. C. R. I. & P. R. Co., 15 I. C. C. R. 219 384, 630, 705 Waxelbaum & Co. v. A. C. L. R. Co., 12 I. C. C. R. 178 316, 320, 396, 466 Weber Club & Intermountain Fair Assn. v. Oregon Short Line R. Co., 17 I. C. C. R. 212 572 Weimer & Rich v. C. & N. W. R. Co., 12 I. C. C. R. 462 297 Weleetka Light & Water Co. V. Ft. S. & W. R. Co., 12 I. C. C. R. 503 490, 521, 524 Welton V. Mo., 91 U. S. 275 5, 66, 67 West End Improvement Club V. Omaha & Council Bluffs Railway & Bridge Co., 17 I. C. C. R. 239 84 Western New York & P. R. Co. V. Penna. Refining Co., 137 Fed. Rep. 343 599, 618 Western Oregon Lbr. Mfrs. Assn. V. Southern Pacific Co., 14 I. C. C. R. 61 211 Wheeling Bridge Case, 13 How. (U. S.) 518 5 White & Co. V. B. & O. S. W. R. Co., 12 I. C. C. R. 307 298, 310, 311 Wholesale Fruit & Produce Assn. V. A. T. & S. F. Ry. Co., 14 I. C. C. R. 410 219, 440, 453 Wight V. United States, 167 U. S. 512 442, 507, 531, 532, 840 Wllhoit V. M. K. & T. Ry. Co., 12 I. C. C. R. 139 182 Wilson, In re, 10 N. M. 32 67 TABLE OF CASES. [References Wilson Produce Co. v. Penn- sylvania R. Co., 14 I. C. C. R. 170 455, 461 16 I. C. C. R. 116 460, 461 Williams & Co. v. V. S. & P. Ry., 16 I. C. C. R. 482 174, 206 Willson V. Black Bird C. M. Co., 2 Pet. (U. S.) 245 2 V. Rock Creek Ry. of D. C, 7 I. C. C. R. 83 68, 82, 84, 87 Winters Metallic Paint Co. v. C. M. & St. P. R. Co., 16 I. C. C. R. 587 520 Wisconsin M. & P. R. Co. v. Jacobson, 179 U. S. 288 945 Wiswall V. Sampson, 55 U. S. 14 How. 52 112 Withers v. Buckley, 20 How. (U. S.) 84 3 Woodburn v. Kilburn Co., 1 Abb. U. S. 158 3 Wood Butter Co. v. C. C. C. & St. L. Ry. Co., 16 I. C. C. R. 374 236 are to pages.] Woodman v. Kilburn Man. Co., 1 Bill. 546 3 Woodward & Dickerson v. L. & N. R. Co., 15 I. C. C. R. 170 388, 610 Worcester Excursion Car Co. V. Penna. R. Co., 2 I. C. R. 792 321, 328 Wrigley v. C. C. C. & St. L. R. Co., 10 I. C. C. R. 412 201, 301 Wylie V. Northern Pacific R. Co., 11 I. C. C. R. 145 133, 241, 380, 577 Wyman, Partridge & Co. v. B. & M. R. R. Co., 13 I. C. C. R. 258 284 15 I. C. C. R. 577 284 Yeaton v. United States, 5 Cranch. 281 120 CLAUSES IN FEDERAL CONSTITUTION RELATING TO AND AFFECTING THE INTERNAL AND FOREIGN COMMERCE OF THE UNITED STATES. "The Congress shall have power * * * to regulate commerce with foreign nations and among the several States, and with the Indian Tribes." Article 1, Section 8, Paragraph 3. "The Congress shall have power * * » to exercise exclusive Legislation in all cases whatsoever, over such District (not exceed- ing ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." Article 1, Section 8, Paragraph 17. "The Congress shall have power to dispose of and make all need- ful rules and regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." Article 4, Section 3, Paragraph 2. "No tax or duty shall be laid on articles exported from any State." Article 1, Section 9, Paragraph 5. "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall any vessel bound to, or from, one State, be obliged to enter, clear, or pay duty in another." Article 1, Section 9, Paragraph 6. "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Article 4, Section 2, Paragraph 1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Amendment XIV, Section 1 (declared ratified July 28, 1868). "This Constitution, and the laws of the United States which- shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the Land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Article 6, Paragraph 2. "The Congress shall have power * * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, pr in any department or oflace thereof." Article 1, Section 8, Paragraph 18. "The powers not delegated to- the United States Jjy the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively or to the people." Amendment X (declared ratified 1791). FEDERAL REGULATIOJS^ OF INTERSTATE TRAl^SPORTATIOI^ CHAPTER I. HISTORICAL ANTECEDENTS. The act to regulate commerce^ approved February 4, 1887, was passed under the authority conferred upon Congress by the Federal Constitution "to regulate eommeree with • foreign nations, among the several States, and with the Indian tribes," and in recognition of a duty which, though long delayed, had at length, in the opinion of Congress, become imperative. The reasons for the delay are well un- derstood. When the grant of this power of regulation was made by the Constitution the commerce^ between the States which might be controlled under it was quite insignificant both in volume and value. It was for the most part carried on by means of coastwise vessels and by water craft of various kinds which were sailed or otherwise propelled on the lakes, rivers, and smaller streams of the interior. On the land there was very little that could be said to rise to the 1 Act to Regulate Commerce, approved February 4, 1887, and took effect April 5, 1887, C. 104, 24 Stat, at Large, 379. This act was known as the CuUom Act and was modeled after the following English Acts: The Railway and Canal Traffic Act, 1854 (17 and 18 Vict. C. 31), and the Regulation of Railways Act, 1873 (36 and 37 Vict. C. 48). See Interstate Com. Com. y. Baltimore &c. R. Co., 145 U. S. 263, 36 L. ed. 699, 12 Sup. Ct. 844. 2 Commerce is an exchange of goods. The word also Includes the subject, vehicle, agent and various operations by which such exchange is effectuated. Riverside Mills v. A. C. L. R. Co., 1907, 168 Fed. Rep. 987. Eegulation — 1. 2 INTERSTATE TEANSPOETATION. dignity of interstate commerce, and the regulation of that little, as also that which was exclusively State traffic, was for the most part left to the rules of the common law. The exceptional regulations, if any seeined to be called for, were made by the State laws. In a few cases where per- sons had associated themselves together as regular carriers of persons on definite routes, exclusive rights were granted to them by the States as such carriers, the motive to such grants being a belief on the part of the State authorities that without the exclusive privilege, the regular transpor-, tation would not be adequately and reliably provided for. For the regulation of commerce on the ocean and other navigable waters. Congress very promptly passed the nec- essary laws; but its jurisdiction within the States was not very clearly understood, and it was not until the great ease of Giblons v. Ogden,^ decided in 1824, that it was authori- 3 Gibbons v. Ogden, (1824), 9 Wheat. (U. S.) 1, 6 L. ed. 23. The power to regulate commerce, as laid down in this case, is considered and ap- proved in Brown v. State of Maryland, 12 Wheat. (U. S.) 419, 446, 452, 6 L. ed. 23, and in the Passenger Cases, 7 How. (U. S.) 283, 394, 400, 405, 433, 437, 462, 12 L. ed. 702. In United States v. Coombs, 12 Pet. (U. S.) 72, 78, 9 L. ed. 1004, the Court says, per Story, J.: "The power to regulate commerce includes the power to regulate naviga- tion as connected with foreign nations and among the States. It was so held and decided by this court, in the case of Gibbons v. Ogden, 9 Wheat. (U. S.) 189 to 198, 6 L. ed. 68. It does not stop at the mere boundary line of a State, nor is it confined to acts done on the water or in the necessary course of navigation thereof. It extends to such acts done on land which interfere with, obstruct or prevent the due exercise of the power to regulate commerce and navigation with foreign States and among the States." This case is also discussed and commented on in regard to the constitutionality of State license laws, in the License Cases, 5 How. (U. S.) 504, 581-584, 588, 600-603, 12 L. ed. 256. As to the power of Congress to regulate "commerce among the several States," see as to navigable rivers, obstructions, bridges over same, etc., Sinnot v. Davenport, 22 How. (TJ. S.) 227, 16 L. ed. 243; Haldeman v. Beckwith, 4 McLean, (U. S.) 286; Devoe v. Bridge Co., 3 Am. Law Reg. 79; Jolly v. Terre Haute Co., 6 McLean, (U. S.) 237; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, (U. S.) 70; Willson v. Black Bird C. M. Co., 2 Pet. (U. S.) 245. 7 L. ed. 412; Pennsyl- HISTORICAL ANTECEDENTS. 3 tatively and finally determined that the waters of a State, when they constituted a highway for foreign and interstate commerce, are, so far as concerns such commerce, as much within the reach of Federal legislation as are the high seas; and consequently that exclusive rights for their navigation cannot be granted by the States whose limits embrace them. But while providing from time to time for the regulation of commerce by water. Congress still abstained from the regulation of commerce by land. The reasons for this con- tinued to be the same as at the first. The land commerce was insignificant in amount, and the rules of the common law were in general found adequate to the settlement of the questions arising out of it. The commerce of trappers and hunters, of traders with the Indians, or that of the early settlers in the wilderness, needed only the mjost primi- tive modes of conveyance; the emigrant wagon in one direc- tion and the packhorse and canoe in the other, performed in respect to it the functions now performed by the rail- road train and the steamboat. The use of such primitive instrumentalities required little regulation by either State or national law. When Congress provided for the construc- tion of the Cumberland Road as a great national highway, it was thought quite undesirable to regulate its use by national law or to take national supervision of the com- _ merce upon it; and, with the commerce on the ordinary highways, it was left to the supervision and care of the States respectively through or into which the roads should be built. vania v. Wheeling &c. Bridge Co., 13 How. (U. S.) 518, 14 L. ed. 249; Gilman v. Philadelphia, 3 Wall. (U. S.) 713, 18 L. ed. 96; Veazie v. Moore, 14 How. (TJ. S.) 568, 14 L. ed. 545; Withers v. Buckley, 20 How. (U. S.) 84, 15 L. ed. 816; TJ. S. v. The James Morrison, 1 Newb. 241; United States v. William Pope, 1 Newb. 256; United States v. Railroad Bridge Co., 3 McLean, (U. S.) 517; Woodburn v. Kilburn Co., 1 Abb. U. S. 158; Woodman v. Kilburn Man. Co., 1 Bill. 546; The Vancouver, 18 Int. Rev. Rec. 103; s. c. 2 Sawy. (U. S.) 381; Mason v. Rhinelander, 8 Ben. (U. S.) 163; U. S. v. Coombs, 12 Pet. (U. S.) 72, 9 L. ed. 1004; Heeiman v. Beefman Co., 1 Fed. Rep. 145; U. S. V. Morrison, 4 N. Y. Leg. Obs. 333; U. S. v. Jackson, 4 N. Y. Leg. Obs. 450. 4 INTERSTATE TRANSPORTATION. With the application of steam a,s a motive power for propelling vessels, the conditions were immediately, to a considerable extent, changed. An impetus was given to the internal commerce of the country which promised immense results, and which made immediate and imperative demand for other and different highways to those which accommo- dated the packhorse and heavy wagons of the early traders and settlers. But even then the circumstances were favor- able to a prolongation of State control. The first improved highways were turnpikes; the next in grade were canals; but the highways by water as well as the highways by land were provided for by the States. The General G-ovemment made some appropriations for canals where they were needed as improvements in existing navigation, but the great artificial channels of water transportation were State crea- tions. Such was the ease with the Erie Canal, which during the period when emigration to the wilderness was greatest, and when improvement in the new Territories was most rapid, constituted the most important of all the highways con-, necting the interior with the seaboard. Such also were the canals which were constructed to connect the Delaware with the Hudson, the Chesapeake with the Ohio, the waters of Lake Erie with the Ohio at Portsmouth, at Cincinnati, and ,at Evansville, the waters of Lake Michigan with the Mis- sissippi, and many others now almost forgotten, but which were of great temporary importance and value. As the States constructed these great interstate highways, it was not unnatural that they should be left in charge of the regulation of trade upon them, especially as no com- plaint was made that their regulations were unjust, or that they discriminated unfairly as against the citizens or the business of other States. When, in 1830, steam power be- gan to be applied to the propulsion of vehicles upon land, the same reasons as regards control continued to prevail. The roads constructed for such vehicles were authorized by and built under the authority of the States; the cor- porate charters under which they were operated, and which prescribed the rights, privileges, and powers of the asso- HISTORICAL ANTECEDENTS. 5 elated owners were State laws; the States determined for them the measure of their taxation, and limited if it seemed politic their charges and their profits. The States thus touched them so nearly in all their interests and all their functions that Federal intervention seemed not only unnec- essary but intrusive unless State power should be abused j and the abuse not often appearing, intervention was scarcely thought of by any one. For a long time, therefore, the power of the Federal Government in the regulation of commerce between the States was put forth by way of negation rather than affirma- tively; that is to say, it was put forth in restraint of ex- cessive State power when it appeared, instead of by way of afSrmative national regulation. The national restraint, when there was any, was commonly effected by invoking the action of the judicial department of the Government, and by its assistance arresting such State action as appeared to constitute an unauthorized interference with interstate traffic and intercourse. This special intervention, whether in the exercise of an original jurisdiction, as in the Wheeling Bridge Case,* or under an appellate authority, as in Ward v. Maryland,^ and Welton v. Missouri,^ has been important and useful in a considerable number of cases, but in the nature of things it could not accomplish the purposes of general regulation. On the other hand, the effect was to leave the corporations, into whose hands the internal commerce of the country had principally fallen, to make the law for themselves in many important particulars — the State power being inadequate to complete regulation, and the national power not being put forth for the purpose. The common law still remained inoperative, but there were many reasons why it was inadequate for the purposes of complete regulation. One very obvious reason was that i Wheeling Bridge Case, reported In 13 How. (U. S.) 518, 14 L. ed. 249. 5 Ward V. Maryland, reported in 12 Wall. (XJ. S.) 418, 20 L. ed. 449. 6 Welton V. State of Missouri, 91 U. S. 275, 23 L. ed. 347. 6 INTEESTATE TRANSPORTATION. the new method of land transportation was wholly unknown to the common law, and was so different from those under which common law rules had grown up, that doubts and differences of opinion as to the extent to which those rules could be made applicable were inevitable. A highway of which the ownership is in private citizens or corporations who permit no other vehicles but their own to run upon it bears obviously but faint resemblance to the common high- way upon which every man may walk or ride or drive his wagon or carriage. If we undertake to apply to the one the rules which have grown up in relation to the other, there must necessarily be a considerable period in which the State law will, in many important particulars, be un- certain, and while that continues to be the case, those who have the power to act and must necessarily act by rule and according to some established system, will for all prac- tical purposes make the law, because the rule and the sys- tem will be of their establishment. Such, to a considerable extent was the fact regarding the business of transporting persons and property by rail. Those who controlled the railroads not only made rules for the government of their own corporate affairs, but very largely also they determined at pleasure what should be the terms of their contract relations with others, and others have acquiesced, though oftentimes unwillingly, because they could not with confidence affirm that the law would not compel it, and a test of the question would be difficult and expensive. The carriers of the country were thus en- abled to determine in great measure what rules should govern the transportation of persons and property; rules which intimately concerned the commercial, industrial, and social life of the people. The circumstances of railroad development tended to make this indirect and a;bnormal lawmaking exceedingly unequal and oftentimes oppressive. "When railroads began to be built the demand for participation in their benefits went up from every city and hamlet in the land, and the public was impatient of any obstacles to their free construction HISTORICAL ANTECEDENTS. 7 and of any doubts that might be suggested as to the sub- stantial benefits to flow from any possible line that might be built. Under an imperative popular demand general laws were enacted in many States which enabled projectors of roads to organize at pleasure and select their own lines, and where there were no such laws the grant of a special charter was almost a matter of course, and the securities against abuse of corporate powers were little more than nominal. For a long time the promoter of a railway was looked upon as a public benefactor, and laws were passed under which municipal bodies were allowed to give public money or loan public credit in aid of his schemes on an assumption that almost any road would prove reasonably remunerative, but that in any event the indirect advantages which the public would reap must more than compensate for the expenditures. In time it came to be perceived that these sanguine ex- pectations were delusive. A very large proportion of the public money invested in railroads was wholly sunk and lost. Many roads were undertaken by parties who were without capital, and who relied' upon obtaining it by a sale of bonds to a credulous public. The corporation thus without capital was bankrupt from its inception, and the corpora- tors were very likely to be mere adventurers who would employ their charter powers in such manner as would most conduce to their personal ends. It is striking proof of the recklessness of corporate man- agement that at the close of the year 1887, there were one hundred and eight roads, representing a mileage of 11,066, in the hands of receivers, managing them under the direc- tion of the courts, whose attention was thus necessarily withdrawn from the ordinary and more appropriate duties of judicial bodies. So serious had been the evil of bringing worthless schemes into existence and making them the basis for an appropriation of public moneys or for the issue of worthless evidences of debt that a number of the States so amended their constitutions as to take from the legislature the power either to lend the credit of the State in aid of 8 INTERSTATE TRANSPORTATION. corporations proposing to construct railroads, or to authorize municipal bodies to render aid, either in money or credit. State legislation had at the same time been in the direction of making compulsory the actual payment of a bona fide capital before a corporation should be at liberty to test the credulity of the public by an issue of negotiable securi- ties. When roads were built for which the business was inade- quate, the managers were likely to seek support by entering upon competition for business which more legitimately be- longed to the other roads, and which could only be ob- tained by offering rates so low that if long continued they must prove destructive. A competitive warfare was thus opened up in which each party endeavored to underbid the other, with little regard to prudential considerations, and freights were in a great many cases carried at a loss, in the hope that in time the power of the rival to continue the strife would be crippled and the field practically left to a victor, which could then make its own terms with customers. When the competition was less .extreme than this, there was still a great deal of earnest strife for business, some of which was open and with equal offerings of rates and ac- commodations to all, but very much of which was carried on secretly, and then the very large dealers practically made their own terms, being not only accommodated with sidetracks and other special conveniences, but also given what were sometimes spoken of as wholesale rates, or per- haps secret rebates, which reduced the cost to them of transportation very greatly below what smaller dealers in the same line of business were compelled to pay. Such allowances were sufficient of themselves in very many cases to render successful competition, as against those who had them, practically impossible. The system of making special arrangemients with shippers was in many parts of the country not confined to large man- ufacturers and dealers, but was extended from person to person under the pressure of alleged business necessity, or because of personal inopportunity or favoritism, and even HISTOEICAL ANTECEDENTS. 9 in some cases from a desire to relieve individuals from the consequences of previous unfair concessions to rivals in business. The result was that shipments of importance were commonly made under special bargains entered into for the occasion, or to stand until revoked, of which the ship- per and representative of the road were the only parties having knowledge. These arrangements took the form of special rates, rebates, and drawbacks, underbilling, reduced classification, or whatever might be adapted to keep the transaction from the public; but the public very well un- derstood that private arrangements were to be had if the proper motives were presented. The memorandum book carried in the pocket of the general freight agent often contained the only record of the rates made to the different patrons of the road, and it was in his power to place a man or a community under an immense obligation by eon- ceding a special rate on one day, and to nullify the effect of it the next day by doing even better by a competitor. The system, if it can be called such, involved a great measure of secrecy, and its necessary conditions were such as to prevent effective efforts to break it down, though the willingness to make the effort was not wanting among in- telligent shippers. It was of the last importance to the shipper that he be on good terms with those who made the rates he must pay; to contend against them was some- times regarded as a species of presumption which was best dealt with by increasing burdens ; and the shipper was cautious about incurring the risk. Nevertheless it was a common observation, even among those who might hope for special favors, that a system of rates, open to all and fair as between localities, would be far preferable to a system of special contracts, into which so large a personal element entered or was commonly supposed to enter. Per- manence of rates was also seen to be of very high import- ance to every man engaged in business enterprises, since without it business contracts were lottery ventures. It was also perceived that the absolute sum of money charges exacted for transportation, if not clearly beyond the bounds 10 INTERSTATE TEANSPOETATION. of reason, was of inferior importance in comparison with the obtaining of rates that should be open, equal, relatively just as between places, and as steady as in the nature of things was practicable. Special favors of rebates to large shippers were not al- ways given because of any profit which was anticipated from the business obtained by allowing them; there were other reasons to influence their allowance. It was early perceived that shares in railroad corporations were an enticing subject for speculation, and that the ease with which the hopes and expectations of buyers and holders could be operated upon pointed out a possible road to speedy wealth for those who should have the management of the roads. For specu- lative purposes an increase in the volume of business might be as useful as an increase in net returns; for it might easily be made to look to those who knew nothing of its cause like the beginning of great and increasing prosperity to the road. But a temporary increase was sometimes worked up for still other reasons, such as to render plausible some de- mand for an extension of line, or for some other great ex- penditure, or to assist in making terms in a consolidation, or to 'strengthen the demand for a larger share in a pool. Whatever was the motive, the allowance of the special rate or rebate was essentially unjust and corrupting; it wronged the smaller dealer, oftentimes to an extent that was ruinous, and it was generally accompanied by an al- lowance of free personal transportation to the large dealer, which had the effect to emphasize its evils. There was not the least doubt that had the cause been properly brought to a judicial test these transactions would in many cases have been held to be illegal at the common law; but the proof was in general difficult, the remedy doubtful or ob- scure, and the very resort to a remedy against the party which fixed the rates of transportation at pleasure, as has already been explained, might prove more injurious than the rebate itself. Parties affected by it, therefore, instead of seeking redress in the courts, were more likely to direct their efforts to the securing of similar favors on their own HISTORICAL ANTECEDENTS. 11 behalf. They acquiesced in the supposition that there must or would be a privileged class in respect to rates, and they endeavored to secure for themselves a place in it. Personal discrimination in rates was sometimes made un- der the plausible pretense of encouraging manufactures or other industries. It was perhaps made a bargain in the establishment of some new business or in its removal from one place to another that its proprietors should have rates more favorable than were given to the public at large; and this, though really a public wrong, because tending to destroy existing industries in proportion as it unfairly built up others, was generally defended by the parties to it on the ground of public benefit. Local discriminations, though not at first blush so un- just and offensive, had nevertheless been exceedingly mis- chievous, and if some towns grew others withered away under their influence. In some sections of the country if rates were maintained as they were at the time the inter- state commerce law took effect, it would have been prac- tically impossible for a new town, however great its natural advantages, to acquire the prosperity and the strength which would make it a rival of the towns which were specially favored in rates; for the rates themselves would establish for it indefinitely a condition of subordination and depend- ence to "trade centers." The tendency of railroad compe- tition had been to push the rates down and still further down at these trade centers, while the depression at inter- mediate points had been rather upon business than upon rates. In very many cases it resulted in charging more for a short than for a long haul on the same line in the same direction; and although this was justified by railroad managers as resulting from the necessities of the situation, it is not to be denied that the necessity in many cases was artificially created and without sufSoient reason. The inevitable result was that this management of the busi- ness had a direct and very decided tendency to strengthen unjustly the strong among the customers and depress the weak. These were very great evils, and the indirect con- 13 INTERSTATE TEANSPOETATION. sequences were even greater and more pernicious than the direct, for they tended to fix in the public mind a belief that injustice and inequality in the employment of public agen- cies were not condemned by the law, and that success in business was to be sought for in favoritism rather than in legitimate competition and enterprise. The evils of free transportation of persons were not less conspicuous than those which have been mentioned. This, where it extended beyond the persons engaged in railroad service, was commonly favoritism in a most unjust and of- fensive form. Free transportation was given not only to secure business, but to conciliate the favor of localities and of public bodies; and, while it was often demanded by per- sons who had, or claimed to have, influence which was capable of being made use of to the prejudice of the rail- roads, it was often accepted by public officers of aU grades and varieties of service. In these last cases the pass sys- tem was particularly obnoxious and baneful; for if any return was to be made or was expected of public officers, it was of something which was not theirs to give, but which belonged to the public or their constituents. A ticket en- titling one to free passage by rail was often more effective iu enlisting the assistance and support of the holder than its value in money would have been, and in a igreat many eases it would be received and availed of when the offer of money, made to accomplish the same end, would have been spurned as a bribe. Much suspicion of public men resulted, which was sometimes just, but also sometimes un- just and cruel; and some deterioration of the moral sense of the community, traceable to this cause, was unavoidable while the abuse continued. The parties most frequently and most largely favored were those possessing large means and having large business interests. The general fact came to be that in proportion to the distance they were carried those able to pay the most paid the least. One without means had seldom any ground on which to demand free transportation, while with wealth he was likely to have many grounds on which he could make HISTOEICAL ANTECEDENTS. 13 it for the interest of the railroad company to favor liim, and he was sometimes favored with free transportation not only for himself and his family but for business agents also, and even sometimes for his customers. The demand for free transportation was often in the nature of black- mail, and was yielded to unwillingly and through fear of damaging consequences from a refusal. But the evils were present as much when it was extorted as when it was freely given. These were some of the evils that made interference by national legislation imperative. But there were others that were of no small importance. Rates when there was no competition were sometimes so high as to be oppressive, and when competition existed by lines upon which the public confidently relied to protect them against such . a wrong, a consolidation was effected and the high rates perpetuated by that means. In some eases the roads, created as conveniences in transportation, were so managed in re- spect to business passing or destined to pass over other roads that they constituted hindrances instead of helps, to the great annoyance of travel and to the serious loss of those who intrusted their property to them. Then their rates were changed at pleasure and without public notification; their dealings to a large extent were kept from the public eye, the obligation of publicity not being recognized; and the public were therefore without the means of judging whether their charges for railroad service were reasonable and just or the contrary. But the publications actually made only increased the difficulties. Railroad rates, difficult enough to be under- stood by the uninitiated when printed plainly in one general tariff with classification annexed, became mystic enigmas when several different tariffs were printed, as was the case in some sections; some relating to competitive points and others to what were called local points, and each referring to voluminous and perhaps different classifications, which were printed but not posted, and which were observed or disregarded at will in the rates as published. Such unsys- 14 INTEESTATE TEAN8P0ETATI0N. tematic and misleading publications naturally led to many overcharges and controversies, and naturally invited and favored special rates and injurious preferences. These were serious evils; and they not only to some ex- tent blunted the sense of right and wrong among the people and tended to fix an impression upon the public mind that unfair advantages in the competition of business were per- fectly admissible when not criminal, but they built up or strengthened a class feeling and imbittered the relations between those who for every reason of interest ought to be in harmony. It was high time that adequate power should be put forth to bring them to an end. Railroads are a public agency. The authority to construct them with extraordinary privileges in management and operation is an expression of sovereign power, only given from a considera- tion of great public benefits which might be expected to result therefrom. Prom every grant of such a privilege re- sulted a duty of protection and regulation, that the grant might not be abused and the public defrauded of the an- ticipated benefits. The abuses of corporate authority to the injury of the public were not the only reasons operating upon the public mind to bring about the legislation now under considera- tion; some other things which in their direct effects were wrong to stockholders had their influence also, and this by no means a light one. The manner in which corporate stocks were manipulated for the benefit of managers • and to the destruction of the interests of the owners was often a great scandal, resulting sometimes in bankruptcy and practical destruction of roads which, if properly managed, would have been not only profitable, but widely useful. This in its direct results might be a wrong to individuals only, but in its indirect influence it was a great public wrong also. The most striking and obvious fact in such a case com- monly was that persons having control of railroads in a very short time by means of the control amassed great fortunes. The natural conclusion which one draws who HISTORICAL ANTECEDENTS. 15 must judge from surface appearances, is that these fortunes were unfairly acquired at the expense of the public; that they represented excessive charges on railroad business, or unfair employment of inside privileges, and furnished in themselves conclusive evidence that rates were wrong and probably extortionate. An impression of this sort, when it happens to be wide of the fact, is for many reasons unfor- tunate. It creates or strengthens a prejudice against all railroad management — the honest as well as the dishonest — which affects the public view of all railroad questions; it renders it more difficult to deal with such questions calmly and dispassionately; it makes the public restive under the charges they are subjected to, even though they be moder- ate and necessary; it tends to strengthen a feeling among the unthinking that capital represents extortion. However careful, considerate, fair, and just the management of any particular road may be, and however closely it may confine itself to its legitimate business, it is impossible that it should wholly escape the ill effects of this prejudice, which are visited upon all roads because some conspicuous railroad managers have by their misconduct given in the public mind a character to all. Evils of the class last mentioned were difficult of legis- lative correction, because they sprang from the overconfi- denee of stockholders in the officers chosen to manage their interests, and whose acts at the time they perhaps assented to. But if capable of correction by legislative authority, it was in general that of the States, not that of the Nation. The States in the main conferred the corporate power, and it was for the States by their legislation to provide for the protection of the individual interests which were brought into existence by their permission. The National Govern- ment had to do with the commerce which these artificial entities of State creation might be concerned in. Never- theless, the manifest misuse of corporate powers strength- ened the demand for national legislation, and this very naturally because the private gains resulting from corpor- ate abuse were supposed to spring, to some extent at least. 16 INTERSTATE TRANSPORTATION. from excessive burdens imposed upon the commerce which the nation ought to regulate and protects "It is true that the immense inland development of the common carrier business in America after the Civil "War, with the extensions of railroad facilities into the more re- mote regions of interior settlement, led several of the States to establish a local railroad board of commissioners for gathering statistics of the business, compelling railway re- turns, hearing private complaints, investigating the cause of accidents, supervising freight and passenger tariffs under legislative direction, and exercising on behalf of the public generally a considerable control over those powerful cor- porations so as to prevent recklessness and abuse. Some State legislatures inclined moreover to fix the maximum rates which inland common carriers might charge their cus- tomers. But when the Supreme Court of the United States decided in the case of Wabash, St. Louis & Pacific B. Co. V. State of Illinois,^ that all State regulation must be con- fined to a carrier business strictly local, that it began and ended with the limits of the particular State, and could not extend to a continuous transportation which railway companies conducted beyond such boundaries to some other State, Territory or foreign country, without infringing upon the constitutional sovereignty of the United States over all interstate and foreign commerce, Congress promptly inter- vened with a statute of corresponding tenor to apply the same general policy of supervision by commissioners wher- ever national jurisdiction extended."' In general, a policy which States still widely maintain 7 First Annual Report of the Interstate Commerce Commission. 8 Wabash, St. Louis & Pacific R. Co. v. State of Illinois, 118 TJ. S. 557, 30 L. ed. 244; 7 Sup. Ct. 4 (1886). Previous to this decision Congress had passed several statutes regulating certain subjects of interstate commerce, as follows: Act March 3, 1873 (now Sections 4386-4390 R. S.), relating to transportation of livestock; Act June 15, 1866 (now Section 5258 R. S.), permitting carriers by rail to form continuous lines. Act May 29, 1884, prohibiting, by railroad, inter- state transportation affected with contagious disease. 9 Schouler's Bailments and Carriers. HISTORICAL ANTECEDENTS. 17 for local transportation by rail, Congress established for all interstate and foreign traffic of the same description. The following are the leading features of the original Act. Since then there have been quite a number of amend- ments thereto, as well as Acts supplementary thereto, affect- ing a great many changes. These provisions are given, so that as we progress with the subject we may follow the growth and development of the law. For a copy of the original Act, as well as all other Acts supplementary thereto and amending the same, see Ap- pendices. All charges made for services by carriers subject to the Act must be reasonable and just. Every unreasonable and unjust charge is prohibited and declared to be unlawful. The direct or indirect charging, demanding, collecting, or receiving, for any service rendered, a greater or less com- pensation from any one or more persons than from any other for a like and contemporaneous service, is declared to be unjust discrimination and is prohibited. The giving of any undue or unreasonable preference, as between persons or localities, or kinds of traffic, or the subjecting any one of them to undue or unreasonable prej- udice or disadvantage, is declared to be unlawful. Reasonable, proper, and equal facilities for the interchange of traffic between lines, and for the receiving, forwarding, and delivering of passengers and property between con- necting lines is required, and discrimination in rates and charges as between connecting lines is forbidden. It is made unlawful to charge or receive any greater compensation in the aggregate for the transportation of passengers or the like kind of property under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line in the same di- rection, the shorter being included within the longer dis- tance. Contracts, agreements, or combinations for the pooling of Regulation — 2. 18 INTEESTATB TEANSPOETATION. freights of different and competing railroads, or for divid- ing between them the aggregate or net earnings of such railroads or any portion thereof, are declared to be un- lawful. All carriers subject to the law are required to print their tariffs for the transportation of persons and property, and to keep them for public inspection at every depot or station on their roads. An advance in rates is not to be made until after ten days' public notice, but a reduction in rates may be made to take effect at once, the notice of the same being immediately and publicly given. The rates publicly notified are to be the maximum as well as the minimum charges which can be collected or received for the services respectively for which they purport to be established. Copies of all tariffs are required to be filed with the Com- mission, which is also to be promptly notified of all changes that shall be made in the same. The joint tariffs of con- necting roads are also required to be filed, and also copies of all contracts, agreements, or arrangements between car- riers in relation to traffic affected by the Act. It is made unlawful for any carrier to enter into any com- bination, contract, or agreement, expressed or implied, to prevent, by change of time schedules, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination. CHAPTEE II. GENESIS AND ORGANIZATION AND INTERNAL ARRANGEMENT OF THE INTERSTATE COMMERCE COMMISSION. Section 1. Power of Congress to Establish the Interstate Commerce Commis- sion. 2. Genesis of the Commission. 3. Members of the Commission. 4. Chairman of the Commission. 5. Secretary of the Commission. 6. Employees of the Commission. 7. OflBce's of the Commission. 8. Address of the Commission. 9. Supplies of the Commission. 10. Expenses of the Commission. ( General. 11. Sessions of the Commission. Sgyjecjai 12. Special Counsel. 13. Special Agents or Examiners. 14. Division of Employes of Commission into Departments, and Dis- tribution of its Duties. 15. Procedure and Practice before the Commission. 16. Administrative Rulings, General Orders, Opinions and Tariff Regu- lations of the Commission. 17. Reports of Investigations, Decisions, Orders and Requirements of the Commission. 18. Correspondence with the Commission by Carriers on Freight and Passenger Matters. 19. Library of the Commission. 20. Annual Reports of the Commission to Congress. 21. Publications of the Commission. 22. Distribution of Official Circulars and Rulings of the Commission. 23. Quotations from correspondence of the Commission. 24. Powers and Duties of the Commission. 19 §§ 1-3] INTEESTATE TEANSPOETATION. 30 §1. Power of Congress to Establish the Interstate Commerce Commission. Congress has plenary power, subject to the limitations imposed by the Constitution, to prescribe the rules by which commerce among the several States is to be governed. It may, in its discretion, employ any appropriate means, not forbidden by the Constitution, to carry into effect, and accomplish, a power given to it by the Constitution.^ The Legislature may delegate to an administrative body the execution in detail of the legislative power of regula- tion, and has done so in establishing the Interstate Com- merce Commission.^ §2. Genesis of the Commission. The Interstate Commerce Commission was created and established under authority of the "Act to Regulate Com- merce" approved February 4, 1887.^ The first Commission was organized March 31, 1887, by the appointment of President Grover Cleveland and confir- mation by the Senate and entered at once upon the dis- charge of its duties. The other provisions of the Act took effect April 5, 1887. §3. Members of Commission. IT A. KXJMBER. The Interstate Commerce Commission is composed at the present time of seven Commissioners.* The Commission originally consisted of five Commissioners,* but the amend- 1 1. C. C. V. Brimson, 154 V. S. 447; 38 L. ed. 1047; 14 Sup. Ct. Rep. 1125. 2 I. C. C. V. C, N. O. & T. P. Ry. Co., 167 U. S. 479; 17 Sup. Ct. Rep. 896; 46 L. ed. 243. 3 Act to Regulate Commerce approved Feb. 4, 1887, 24 Statutes at Large, 379, Section 11. « Act, Section 24. B Act, Section 11. 31 ORGANIZATION OF COMMISSION. [§ 3 ment of June 29, 1906, increased the number to seven members.® Tf B. Qualifications. No person in tbe employment of or holding an official relation to any common carrier subject to the provisions of the Act to Regulate Commerce, or owning stock or bonds thereof, or who is in any manner pecuniarily inter- ested therein, is qualified to enter upon the duties of or hold the office of Commissioner.'' Neither may the Commis- sioners engage in any other business, vocation, or employ- ment during their term of office. Not more than four Commissioners may be appointed from the same political party.* T[ C. How Appointed. The Commissioners are appointed by the President of the United States, by and with the advice and consent ' of the Senate.^ TfD. Teem of Office. The Commissioners are each appointed for a term of seven years, except that any person appointed to fill a vacancy is appointed only for the unexpired term of the Commis- sioner whom he succeeds.^" Their term of office under the original Act was six years,^^ but this was changed by the amendment of June 29, 1906.^^ T[ E. Theie Duties. The Commissioners exercise a general control and direc- tion over all the business of the Commission. They per- sonally examine all complaints received, hear the trial of 8 Act, Section 24. T Act, Section 11. s Act, Section 24. 9 Act, Sections 11 and 24. 10 Act, Section 24. 11 Act, Section 11. 12 Act, Section 24. § 3] INTERSTATE TEANSPOETATION. 22 all controversies, conduct investigations, prepare all reports made, decisions rendered, and orders and circulars issued, allow subpoenas duces tecum, carry On the correspondence relating to the action and duties of carriers and the rights of shippers, and various other things.^^ While the Commission exercises general control and direc- tion over the official work of all divisions, they are in more immediate touch with the work of the Operating Division." U F. Salaries. The compensation of each Commissioner is ten thousand dollars per annum, payable in the same manner as the Judges of the . Courts of the United States.^^ The salaries of the Commissioners as provided by the original Act were seven thousand five hundred dollars per annum,'^* but the amendment of June 29, 1906, increased their compensation. T[ G. Vacancies. Any person appointed to fill a vacancy is appointed only for the unexpired term of the Commissioner whom he suc- ceeds. ^^ No vacancy in the Commission impairs the right of the remaining Commissioners to exercise all the powers of the Commission." Vacancies in the Commission have been filled from time to time in accordance with the limita- tion in the Act that not more than four members shall be of the same political party. IJH. Kemovai feom Oefice. Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.^' 13 Third Annual Report of I. C. C. (1889). 14 Eighteenth Annual Report of I. C. C. (1904). 15 Act, Section 24. 18 Act, Section 18. 1.7 Act, Section 11. 18 Act, Section 24. 19 Ibid. 23 0E6AS"IZATI0X 01' COMMISSION. [§§ 4, 5 If I. Original Members. The Gommission was organized in 1887 by the appoint- ment by President Cleveland and confirmation by the Sen- ate, of the following members: Hon. Thomas M. Cooley, of Michigan ; Hon. William R. Morrison, of Illinois ; Hon. "Walter L. Bragg, of Alabama ; Hon. Aldaee F. Walker, of . Vermont ; Hon. Augustus Schoonmaker, of New York. 1[ J. Present Members. The Commission at this writing is composed of the fol- lowing members: Hon. Martin A. Knapp, of New York; Hon. Judson C. Clements, of Georgia; Hon. Charles A. Prouty, of Vermont; Hon. Francis M. Coekrell, of Mis- souri; Hon. Franklin K. Lane, of California; Hon. Edgar E. Clark, of Iowa; Hon. James S. Harlan, of Illinois. § 4. Chairman of the Oo^mmission. The Chairman of the Interstate Commerce Commission is elected by the Commissioners from among its members. The first Chairman of the Commission was Honorable Thomas M. Cooley, one of the ablest jurists of the country. Chief Justice of the Supreme Court of the State of Michigan; author of "Constitutional Limitations" and other works of highest authority. Judge Cooley resigned September 4, 1891. He was succeeded by Mr. William R. Morrison, who was then the member of the Commission from Illinois, and who served as Chairman until December 31, 1897. Mr. Morrison was succeeded by Hon. Martin A. Knapp as Chair- 'lan, who still serves in that capacity. § 5. Secretary of the Commission. The Commission is authorized by the Act to appoint a Secretary at an annual salary of $3,500, payable in the same manner as the Judges of the Courts of the United States.^" 20 Act, Section 18. § 6] INTERSTATE TKANSPOETATION. 24 However, this salary was increased to $5,000 by Sundry Civil Act of March 4, 1907." By the provisions of the Act it is the duty of the Sec- retary to preserve, as public records, all copies of schedules and tariffs of rates, fares, and charges, and of all contracts, agreements, or arrangements between common carriers filed with the Commission, as well as the statistics, tables, and figures contained in the annual reports of carriers made to the Commission.^^ He furnishes certified copies of or ex- tracts from any of the schedules, tariffs, contracts, agree- ments, arrangements, or reports filed with the Commission for the purpose of investigation by the Commission and to be used as evidence in judicial proceedings.^^ The Sec- retary acts as the executive officer and is also the dis- bursing agent of the Commission, and is under bond.^* His duties in addition to those enumerated in the Act are varied, and relate to the Commission's records, mails, cor- respondence, services of papers, publications, distribution of documents, supplies of all kinds, payment of all em- ployees, disbursement of all moneys, and whatever else may be found necessary. ^° Mr. Edward A. Moseley was the first Secretary of the Commission and holds that office at this writing. §6. Employes of the Commission. The Commission is authorized to employ and fix the compensation of such employes, other than the Secretary, as it may find necessary to the proper performance of its duties.^" These employes are all appointed by the Com- mission under the Civil Service Rules, and consists of law clerks, confidential clerks, statisticians, accountants, exam- 21 34 Statutes at Large, 1311. 22 Act, Section 16. 23 Ibid. 24 Third Annual Report of I. C. C. (1889). 2B Ibid. 28 Act, Section 18. 35 OKGANIZATION OP COMMISSION. [§§ 7-9 iners, agents, inspectors, tariff clerks, rate clerks, etc. The report of the Commission for the year 1908 showed nearly 500 employes in all. §7. Offices of the Commission. The Commission is authorized by the Act to hire suit- able offices for its use.^^ The principal office of the Commis- sion is at the City of "Washington, District of Columbia.^' Its offices at the present time are located in the American National Bank Building, No. 1317 F Street, N. W., where its general sessions for hearing contested cases, including oral argument, are held.^* § 8. Addr^s of the Commission. All complaints concerning anything done or omitted to be done by any common carrier, and all petitions or answers in any proceeding, or applications in relation thereto, and all letters and telegrams for the Commission, must be ad- dressed to "Washington, D. C, unless otherwise specifically directed.^" Tariffs, classifications and other matter sent by common carriers for filing must be addressed to "Auditor," Inter- state Commerce Commission, "Washington, D. C.'^ § 9. Supplies of the Commission. The Commission is authorized by the Act to procure all necessary supplies.^^ By the courtesy of the Department of the Interior, the Commission buys its supplies through that Department and receives the advantage of the reduced prices obtained by it in the making of large purchases. A few articles needed for the use of the Commission which 27 Ibid. 28 Act, Section 19. 28 Rule 1, Rules of Practice before the I. C. C. 30 Rule 21, Rules of Practice before the I. C. C. ai Rule 41, Commission's Tariff Circular 15- A. 32 Act, Section 18. §§ 10, 11] INTEESTATE TKANSPOETATIOiN^. 36 are not contracted for by the Department of the Interior, are purchased after bids are received.'^ §10. Expenses of Commission. All the expenses of the Commission, including all neces- sary expenses for transportation incurred by the Commis- sion, or by its employes under their orders, in making any investigation, or upon official business in any other places than in the City of Washington, are allowed and paid on presentation of itemized vouchers therefor, approved by the Chairman of the Commission.^* The Secretary' of the Interstate Commerce Comihission is entitled to be reimbursed for telegrams sent by him in pursuance of directions of the Commission and approved by the Chairman of the Commis- sion; substantial compliance with the requirements of the Comptroller of the Treasury that the original telegrams re- lating to the business of the Interstate Commerce Com- mission, or copies thereof, or certificates that such telegrams are of a confidential nature, shall accompany telegraph vouchers for which credit is asked, being made when the Secretary of the Commission files with his accounts an order of the Commission, which directs him to disregard such requirements as to copies of telegrams, and which declares that such messages are so far confidential as to justify the refusal to disclose their contents. The requirements for their production being unreasonable and against pablic interest.'^ §11. Sessions of the Commission {g^^^Ya?" U A. General Sessions. The general sessions of the Commission for the hearing of complaints, and for investigations of a general charac- 33 Eighteenth Annual Report of I. C. C. (1904). 34 Act, Section 18. 35 United States v. Moseley, 187 U. S. 322; 47 L. ed. 198, 23 Sup. Ct. 90, affirming the judgment of the Court of Claims. 37 ORGANIZATION OF COMMISSION. [§ 12 ter, relating to the business of common carriers and the manner and method in which the same is conducted, are usually held pursuant to the Act/* at the City of Washing- ton, D. C. This has been found more conducive to the con- venience of attendance from different parts of the country.'^ T[ B. Special Sessions. The Act provides that whenever the convenience of the public or the parties may be promoted, or delay or expense prevented thereby, the Commission may hold sessions in any part of the United States. Or it may, by one or more of the Commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of the Act.^' §12. Special Counsel. The Commission may, with the consent of the Attorney- General of the United States, employ special counsel in any proceeding under the Act, paying the expenses of such employment out of its appropriations.^' This authority was conferred upon the Commission by the Hepburn amendment of 1906. However, prior to the amendment referred to the Commission had in a number of instances assigned its own counsel to appear for the com- plainant in cases where formal complaint had been made by private shippers or public associations, such attorneys acting either along or in connection with counsel furnished by the complainant. In justifying this practice, the Commission in its annual report to Congress of 1903, stated :*° "The Act to Regulate Commerce was enacted for the pur- pose of correcting unreasonable rates and discriminating 3« Act, Section 19. 37 Third Annual Report of I. C. C. (1889). 38 Act, Section 19. 39 Act, Section 16. io Seventeenth Annual Report of I. C. C. (1903), page 32. § 13] INTEESTATB TEANSPOKTATIOKT. 28 practices in the interstate transportation of freight and passengers by rail. In the very nature of things the wrongs aimed at are of trifling consequence to the individual, while of tremendous importance to the public as a whole. If a rate be extortionate the amount paid by a single shipper is usually small, but the total may amount to millions of dollars annually. Perhaps in most instances the freight rate is so small a part of the total cost of a commodity that the consumer is unconscious of the increase in rate. The middleman who pays the freight is not immediately interested in the absolute amount of that rate, provided he enjoys as favorable terms as his competitors. It results, therefore, that no one individual can ordinarily afford to sustain the burden of litigating the reasonableness of a freight rate; and this is equally true, in most instances, of discrimination between commodities or localities. To create merely a right of action in such instances and estab- lish a court to which the aggrieved parties may apply would afford no substantial relief. The business of transportation by rail has been often designated as a quasi-public function. In many countries the public itself discharges that duty. In our country it has been left to private enterprises. ' If the public delegates to others this duty, it should at least provide some means whereby the reasonableness of the charges imposed and the fairness of the practices involved may be determined at the public expense. "In our view of the matter this was the leading notion in enacting the Interstate Commerce Law and creating this Commission. The Commission is not a court. It is a Com- mission in the nature of an administrative body, invested with certain specified powers by the Act which created it. In the exercise of those powers it is required at times to hear and pass upon complaints of individual shippers against interstate carriers. This, however, is but a small part of its duties, as an examination of the Act itself conclusively shows. This in terms declares that 'the Commission is hereby authorized and required to execute and enforce the provisions of this Act,' and the fullest power of inquiry 39 OHGANIZATION OF COMMISSION. [§ 12 into the methods and practices of interstate carriers is ac- corded. The 13th section, after stating who may make complaint, how such complaint shall be served upon the carrier, in what maimer the complaint may be satisfied by the carrier, continues : "If such, carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for inves- tigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. "In Interstate Commerce Commission v. Brimson,*^ the Su- preme Court of the United States examined at great length the scope and purposes of this Act, saying, among other things : "AH must recognize the fact that the full information necessary as a basis of intelligent legislation by Congress from time to time upon the subject of interstate commerce cannot be obtained, nor can the rules established for the regulation of such commerce be efficiently enforced otherwise than through the instrumentality of an adminis- trative body, representing the whole country, always watchful of the general interest, and charged with the duty not only of obtaining the required information, but of compelling by all lawful methods obedi- ence to such rules. "In this view of the law 'we can not, when a complaint in- volving a question of general public interest is brought to our attention, merely say to the complainant: 'Employ your attorney, file your complaint, produce your proofs, state your claims, and we will decide the issue.' Shippers could not and will not be put to the expense of prosecuting com- plaints before the Commission ordinarily under those con- ditions, as appear both from the nature of the case and from experience of the Commission; nor, in our view, should they be required to do so. The investigation is for the public benefit and should be conducted at the public ex- pense. Whenever complaint is made which involves a question of general application, either as to the unreason- ableness of a rate or the existence of some discriminating practice, we deem it our duty to investigate that matter without expense to the complainant. This investigation may *i Interstate Commerce Commission v. Brlmson, 154 TJ. S. 447, 38 L. ed. 1047, 14 Sup. Ct. 1125. § 13] INTERSTATE TKANSPOETATION. 30 be prosecuted in two ways. The Commission may begin a proceeding upon its own motion, or it may, in the language of the thirteenth section, 'investigate the matters com- plained of in such manner and by such means as it shall deem proper.' It often happens that the most inexpensive, more effective, and the most expeditious method is to pro- ceed in the pending ease by appointing some one to appear at the expense of the Government in the public interest. * * * * If our decision concerned the complainant alone it might with great propriety be said that he should take the consequences of his own laches; but where the decision is to become a precedent in numberless other instances, where its effect upon the complainant is utterly insignificant in comparison with the effect upon the general public, it will be seen that the rule can not properly be enforced. Broadly speaking, it may be said that whenever this Commission has notice by formal complaint, or otherwise, of an apparent infraction of the Act to Regulate Commerce which ought in its opinion to be examined, and in the nature of things will not be or can not be without the assistance of the Government, we deem it our duty to proceed with as full an investigation of the matter as the time and means at our disposal will permit." § 13. Special Agents or Examiners. If A. Special Agents oe Examiners to inspect the Ac- counts, Eecords and Memoranda kept by Carriers. The Act authorizes the Commission to employ special agents or examiners who shall have authority under the order of the Commission to inspect and examine any and all accounts, records, and memoranda kept by the carriers subject to its provisions.*^ By virtue of this authority the Commission organized a Board of Examiners for the purpose of the inspection and supervision of the accounts and records of common carriers. See Section H, Paragraph 0, post. 42 Act, Section 20. 31 ORGANIZATION OF COMMISSION. [§ 14 T[ B. Special Agents ok Examinees to Administer Oaths, Examine Witnesses and Eeceive Evidence. To carry out and give effect to the provisions of the Acts or any of them, the Commission is authorized to em- ploy special agents or examiners who shall have povs^er to administer oaths, examine witnesses, and receive evi- dence.*^ Tl C. Punishment of Special Examiner who Divulges Facts OE Information without Authority. Any examiner who divulges any fact or information which may come to his knowledge during the course of an examination, except in so far as he may be directed by the Commission or by a Court or Judge thereof, shall be subject, upon conviction in any court of the United States, of competent jurisdiction, to a fine of not more than five thousand dollars or imprisonment to a term of not exceed- ing two years, or both.** § 14. Division of Employes of Commission into Depart- ments and Distribution of its Duties. For the systematic and efficient performance of its duties, the force of the Commission has been organized into several administrative divisions, i. e., A. Operating Division. B. Division of Rates and Transportation. C. Bureau of Statistics and Accounts. D. Division of Claims. E. Division of Law. F. Division of Prosecution. The unification and coordination of these several branches of the Commission has tended to. greatly facilitate its work. The following summary enumerates the duties of the several divisions and shows the general distribution of the work of the Commission : 43 Act, Section 20. 44 Ibid. § 14] INTEESTATE TEANSPOETATION. 33 1[A. Opeeating Division. The administrative and supervisory work of the Commis- sion is performed by the Operating Division. The duties of this division are necessarily diversified and miscellaneous in character. The principal duties of this division are to carry out through the Secretary of the Commission the acts and official orders of the Commission. The work of this division is distributed among several branches thereof, brief reference being here made to the work of the more im- portant branches. Branch in Charge of the Docket Worh. The docket work of the Commission consists in the main in the filing, serving, and recording in the official docket of complaints received by the Commission, as well as the rec- ords and service of orders entered by the Commission insti- tuting inquiry and investigation as to the manner and method in which the common carriers, subject to the Act to Regulate Commerce conduct and manage their business. Besides this there is the issuing of subpoenas as well as the preparation and the publication of opinions in cases decided, the records and service of orders, and the preparation and service of all notices in the assignment of cases for hearing and argument. Before a complaint is filed it is carefully examined, and when found to be in the proper form is served by registered mail on the parties to the proceeding, with notice to answer or satisfy the complaint within a specified time, usually twenty days. When the complaint has been answered the case is at issue and the parties may proceed to submit their testimony, either by deposition or orally, at such time and place as the engagements of the Commission will permit. The testimony in cases before the Commission is usually taken, however, at a place convenient to the parties, and when such testimony is concluded the case is ready for oral argument and the submission of briefs. Not until this stage is reached is the proceeding considered ready for submission. After each case is decided by the Commission its report and opinion is printed. A 33 ORGANIZATION OF COMMISSION. [§ 14 certified copy of this report and opinion together with the order of the Commission entered thereon, is promptly served by registered mail on the parties to the proceeding.*^ Safety Appliance Branch. The safety appliance branch of the Operating Division performs that part of the Commission's VFork in connection with the enforcement of the Safety Appliance Law. This branch consists of a force of inspectors who are continuously employed in examining the equipment of the various rail- roads and in the inspection of the safety appliances thereon. The work is in charge of a chief inspector who assigns the inspectors to such territory as the work may require. Reports are made by the inspectors to the Commission of all the cars examined and defects found. A daily record of the work of each inspector is kept. Reports of inspection are examined and filed and transcripts or extracts are sent to the railroads concerned, calling attention to the con- dition of the equipment with a view to securing better con- ditions. Correspondence is conducted with regard to this matter from this branch of the ofiice under the direct super- vision of the Secretary of the Commission. Information filed by the inspectors in regard to violations of the Safety Appliance Law is examined and if evidence sufficient for prosecution be' shown, the matter is brought to the atten- tion of the proper district attorney for action. A record is kept of the conditions existing on each railroad inspected, and a tabulation of the reports received is made to show the condition of the equipment at all times. '"' Branch in Charge of Accident Reports. Under the Act of March 3, 1901, better known as the Accident Reports Act,*^ all common carriers engaged in. « Annual Reports of I. C. C, 3d (1889), 13th (1899), 17th (1903), 18th (1904). « Annual Reports of I. C. C, 17th (1903), 18th (1904). 47 Accident Reports Act, approved March 3, 1901, 34 Statutes at Large, 823. See Appendix for copy of Act. Regulation — 3. § 14] INTERSTATE TEANSPORTATION. . 34 interstate commerce are required to make and file monthly- reports of their train accidents, and of all accidents to their passengers or to employes while in their service and actually on duty, as well as collisions and derailments. These reports are examined, corrected, and cheeked as soon as they are received by the Commission, and memoranda of all errors and omissions are at once made and forwarded to the respective officers. They are then separated into different classes for the purposes of tabulation. The sta- tistics for these accident reports are compiled and published in quarterly bulletins which are distributed to the general public, representing more than six thousand persons. The detection of errors in these reports requires great vigilance and occasions much correspondence.*^ Stenographic and Typewriting Force. The stenographic and typewriting force of the Operating Division is employed to take and transcribe the testimony at public hearings of the Commission, as well as to handle all the work involved in the performance of the official duties of the Commission.*^ In all cases three copies of this testimony are made and in many of the proceedings several additional copies are called for by interested parties.^" Mailing Branch. A certain portion of the Commission's employes keep up the mailing lists which consist of the addresses of a great many thousand persons who receive the annual reports of the Commission, the quarterly bulletins of accidents, the decisions and opinions of the Commission, and miscellaneous documents published toy the Commission.^^ 48 Annual Report of I. C. C, 17th (1903), 18th (1904). 49 Annual Reports of I. C. C, 13th (1899), 17th (1903). 50 Ibid. 51 Ibid. 35 ORGANIZATION OF COMMISSION. [§14 Miscellaneous. In addition to the duties previously enumerated is the keeping of the accounts of disbursements, the purchase and charge of stationery and all other supplies for the Com- mission, the receipt, answering, filing, and indexing of general correspondence, the distribution of annual reports, decisions, opinions and other official documents, with the work incidental to the preparation for printing the same, and various other duties too numerous to mention in de- tail. Among the duties performed by this division at times is the preparation of the lists of National, State, and local commercial and agricultural organizations of the United States, copies of the inspectors' reports, market values of railroad securities, and other documents published or dis- tributed by the Oommission.^^ 11 B. Division op Eates and Teanspoetation. The Division of Rates and Transportation has charge of the tariffs, contracts, classifications, and other documents filed with the Commission under Section 6 of the Act. The general work of this division includes the recording and acknowledgment of documents received from the car- riers, the examination, indexing and filing of the various papers, and the correspondence resulting from failure on the part of carriers to meet the requirements of the Act and orders of the Commission in the construction and filing of tariffs; also the preparation of data and information regarding rates for use in connection with the complaints, and keeping of various records and other special work.^^ The special work of this division in complying with the demands for information regarding tariffs filed with the Commission and especially the examination of tariffs and preparation of statements showing rates in effect at different periods grows more difficult with the accumulation of docu- ments in the files. ^* 52 Ibid. 53 Annual Reports of I. C. C, 3d (1889), 13th (1899), 18th (1904). 54 Annual Reports of I. C. C, 13th (1899), 17th (1903). § 14] INTERSTATE TRANSPORTATION. 36 This division is in charge of the Auditor, who prepares at the directions of the Commission certified copies of the contents of tariffs, contracts and other documents filed with the Commission to be used as evidence in court. 1[ C. Bureau op Statistics and Accounts. The Commission shortly after its organization in 1887, created a Division of Statistics which had special charge of the annual reports made by the railroad companies to the Commission pursuant to the twentieth section of the Act to Regulate Commerce. This involved the examination of every report made; the correction of errors found therein, the compilation of returns embraced in the reports on thiat subject together with the deduction of results therefrom, and the appropriate comment on the data published. In addition to these duties, the investigation of the special questions in railway statistics is taken up from time to time.°^ The preparation and distribution of the blank form of annual report from carriers with accompanying pamphlets is also a part of the work of this division.^" The work also involves a detailed examination and verification of the re- turns of the carriers' reports, as well as compilation of data and the preparation of the statistical report published. Beginning with the year 1888 this division published annually a report entitled "Annual Report on the Statistics of Rail- ways in the United States. "°^ Another report issued each year since 1892, is the "Preliminary Report on the Income of Railways in the United States," which is designed to show at the earliest possible date the general results of rail- way operations.^' These two reports from the year 1896 to 1906 inclusive, were included as appendices to the annual report of the Commission to Congress. The reports, how- ever, became so voluminous that they are now issued in separate volumes. 55 Annual Reports of I. C. C, 3d (1889), ISth (1899), 18th (1904). 59 Ibid. 57 Ibid. 68 Annual Reports of I. C. C, 13th (1899), 17th (1903). 37 ORGANIZATION OF COMMISSION. [§ 14 The Commission now issues a bulletin at regular intervals which is compiled from the monthly reports of carriers of their operating revenues and operating expenses. The Com- mission has announced that this summary will, in effect, take the place of the preliminary report on the Income Ac- counts of Eailways. In the fall of 1906, on account of the increased responsi- bilities imposed by the twentieth section of the Act to Regu- late Commerce, as amended, this division was enlarged to include supervision over railway accounts as well as over the compilation of railway reports, for which purpose a Board of Examiners has been organized. See infra. Meantime the development of the work was such as to make advisable a change in the title, the title adopted being "Bureau of Statistics and Accounts,"^" The head of this division is called the Statistician. Division of Accounts. The Division of Accounts comprises that part of the Bureau of Statistics and Accounts which is in charge of the development of a uniform system of accounts for all carriers subject to the jurisdiction of the Commission and the supervision of the Board of Examiners organized under the authority granted by Section 20 of the Act to Regulate, Commerce.*" The general system of accounting prescribed for carriers was completed when, under date of June 21, 1909, the Commission issued orders promulgating the classification of expenditures for additions and betterments and the form of general balance sheet statement. These orders are the most important accounting orders which the Commission has thus far promulgated, for the reason that they under- take to define explicitly and in detail the items which make up a statement of corporate assets and liabilities. It is through the rules covered by these orders, also, that the 59 Twenty-Second Annual Report of I. C. C. (1908). 60 Twenty-Third Annual Report of I. C. C. (1909). § 14] INTERSTATE TRANSPORTATION. 38 Commission has given expression to its views relative to the correct .accounting treatment of abandoned property and of additions and betterments paid for out of current revenue. As a matter of information, it may be added that the rules referred to have no bearing upon the question of the issue of securities', no authority having been conferred upon the Commission for dealing with that question."^ Division of Statistics. This Division has charge of the reports of carriers and compilation of returns therefrom, including the annual, monthly and special reports of carriers. In its report to Congress for the year 1909, the Commission stated: "The most interesting attainment in the statistical work during the past year is found in the compilations of the Section of Monthly Reports. Beginning with July 1, 1907, the railways have filed each month a statement of revenues and expenses. Under date of May 31, 1909, a bulletin was pub- lished, compiled from these monthly reports, covering the nine months ending March 31, for the fiscal years 1908 and 1909. This bulletin is the first of a series of monthly state- ments which it is designed to publish. # * * Under the order of the Commission, carriers are given thirty days in which to file their monthly reports, and thirty days are re- quired for their examination and compilation, from which it appears that authoritative information covering the rev- enues and expenses of the reporting carriers is prepared for publication within sixty days of the close of the month to which the statements pertain. ""- Board of Examiners. The twentieth section of the Act to Regulate Commerce, as amended, makes provision for the employment of special agents, or examiners "who shall have authority under the 01 Twenty-Third Annual Report of I. C. C. (1909). 02 Ibid. 39 ORGANIZATION OF COMMISSION. [§ 14 order of the Commission to inspect and examine any and all accounts, records, and memoranda kept by the carriers." This is recognized as an important provision of the law. The Commission has stated that "the examination contem- plated will enable it to enforce conformity to the rules of accounting that have been prescribed, and to ascertain whether or not the net revenues accruing from operations, or the profit and loss which appears on the balance sheet, as published by the carriers and reported to the Federal and State Governments, are correctly stated. This is a result of paramount interest to every investor in railway securities, as well as to the public at large, for the reason that it tends to give greater stability to commercial condi- tions and greater security to railway investments. Such an examination as is contemplated by the law will also furnish added security to the shippers, in that it will disclose un- lawful practices in case such practices exist. "The influence of a board of examiners for railway ac- counts will, in many respects, be similar to that which fol- lows the examination of national banks by the agents of the Comptroller of the Currency.""^ The plan of organization of the board of examiners, by means of which it is expected that the system of uniform accounts prescribed by the Commission will be made effect- ive, has been well defined, as well as the purpose of both the general and special examinations and the rules and methods for conducting them."* The Commission expressed the opinion that the board of examiners is essential for the exercise of the phase of supervisory control contem- plated by the Congress under the twentieth section of the Act."^ The Commission further stated that "it is evident that a high grade of expert intelligence is required for the suc- cessful accomplishment of the task undertaken, especially during the initial years of the organization in which the char- es Annual Report of I. C. C, 21st (1907), 22d (1908). 64 Twenty-Second Annual Report of I. C. C. (1908). 65 Ibid. § 14] INTEESTATE TRANSPORTATION. 40 acter and standing of this branch of the Commission's service is being established, and some difficulty has been encountered in securing a sufficient number of men of broad experience and technical training. As a result, however, of persistent effort on the part of those who have this matter in charge supported by the hearty cooperation of the Civil Service Commission, the difficulty mentioned seems in a fair way removed. "^^ This board is composed of expert accountants and men who have had experience in the auditing departments of railroads and is in charge of a Chief Examiner. This board holds special and genei'al examinations. The Commission stated: "It is the purpose of special examin- ations to gather specific information relative to particular questions; the general examinations, on the other hand, are in the nature of a comprehensive examination of the ac- counts of carriers. The purpose of general examination is to determine whether or not the accounting orders and general transportation rules and principles laid down by the Commission are in fact observed by the carriers, and to note any irregularities reported which may be made the occasion of prosecution. The ultimate purpose of the task assigned to the board of examiners is to create a condition in which improper practices will not take place because of the certainty of their discovery and exposure, and to provide a means by which the Commission can satisfy itself that such administrative rulings and transportation prin- ciples as it lays downs are in fact observed by all carriers. ""' Statistical Groups. The statistics are classified into ten districts or terri- tories. The necessity for this classification into groups arose from the great diversity in the conditions under which rail- ways are operated in various parts of the country."* The 06 Twenty-Second Annual Report of I. C. C. (1908). 67 Twenty-Third Annual Report of I. C. C. (1909). 68 Fifth Annual Report of I. C. C. (1891). 41 ORGANIZATION OF COMMISSION. [§ li groups or territorial divisions of the country referred to are as follows :^' Group I. This group embraces the States of Maine, New Hamp- shire, Vermont, Massachusetts, Rhode Island and Connecticut. Group II. This group embraces the States of New York, Pennsyl- vania, New Jersey, Delaware and Maryland, exclusive of that portion of New York and Pennsylvania lying west of a line drawn from Buffalo to Pittsburg via Salamanca, and Inclusive of that portion of West Vir- ginia lying north of a line drawn from Parkersburg east to the boun- dary of Maryland. Group III. This group embraces the States of Ohio, Indiana, the southern peninsula of Michigan, and that portion of the States of New York and Pennsylvania lying west of a line drawn from Buffalo to Pittsburg via Salamanca. Group IV. This group embraces the States of Virginia, North Caro- lina, South Carolina, and that portion of the State of West Virginia lying south of a line drawn east from Parkersburg to the boundary of Maryland. Group V. This group embraces the States of Kentucky, Tennessee, Mississippi, Alabama, Georgia, Florida, and that portion of Louisiana east of the Mississippi River. Group VI. This group embraces the States of Illinois, Wisconsin, Iowa, Minnesota, the northern peninsula of the State of Michigan, and that portion of the States of North Dakota and Missouri lying east of the Missouri River. Group VII. This group embraces the States of Montana, Wyoming, Nebraska, that portion of North Dakota and South Dakota lying west of the Missouri River, and that portion of the State of Colorado lying north of a line drawn east and west through Denver. Group VIII. This group embraces the States of Kansas, Arkansas, that portion of the State of Missouri lying south of the Missouri River, that portion of the State of Colorado lying south of a line drawn east and west through Denver, that portion of the State of Texas lying west of Oklahoma, and the Territories of Oklahoma, Indian Territory, and the portion of New Mexico lying northeast of Santa Fe. Group IX. This group embraces the State of Louisiana, exclusive of the portion lying east of the Mississippi River, the State of Texas,' exclusive of that portion lying west of Oklahoma, and the portion of New Mexico lying southeast of Santa Fe. Group X. This group embraces the States of California, Nevada, Oregon, Idaho, Utah, Washington, the Territory of Arizona, and that portion of the Territory of New Mexico lying west of Santa Fe. T[ D. DiYisiON OF Claims. The Division of Claims is charged with the investigation of claims involving reparation by the carrier to the shipper on account of alleged overcharge due to the application of excessive and unreasonable rates, misrouting, etc., which 69 Tenth Annual Report of I. C. C. (1896). § 14:] INTERSTATE TRANSPORTATION. 42 may be settled on informal complaint and are adjustable under the rules promulgated by the Commission.'"' An important service is thus performed by the Commission to shippers throughout the country in the settlement of . meritorious claims, involving comparatively small sums, where the claimants would not feel justified in devoting ■the time and incurring the expense incident to a formal hearing.''^ During the year ending November 30, 1908, informal rep- aration claims were authorized by the Commission in 1,012 cases aggregating about $154,703." The work of this division was formerly under the Oper- ating Division. TIE. Division of Law. The Law Division is composed of a staff of attorneys and assistants who are regularly employed by the Com- mission and at times special counsel, as provided for in the Act, for particular proceedings; and in the control of the Solicitor of the Commission. This department . attends to all the legal business of the Commission and represents the Commission when it is a party to proceedings in the Federal Courts as well as in some proceedings before the Commission itself. H F. Division of Prosecutions. Early in the year 1907 the Commission organized a divi- sion known as the "Division of Prosecutions," to take full charge of investigations into criminal violations of the Act to Regulate Commerce. On receipt of information of any violation of the Act amounting to a criminal infraction of the law, it becomes the duty of this division to make such investigations as may be necessary to determine whether or not the matter is one proper to be brought to the attention '0 Twenty-Second Annual Report of I. C. C. (1908). 71 Ibid. 72 Ibid. 43 OEGANIZATION OF COMMISSION. [§§ 15, 16 of the Department of Justice. In any case where it is finally determined by the Commission that a criminal prose- cution is proper, it is the duty of this division to prepare, the case for presentation to the United States attorney in the district having jurisdiction.^'* § 15. Procedure and Practice before the Commission. See Chapter 47, posit. § 16. Administrative Rulings, General Orders, Opinions and Tariff Regulations of the Commission. lyA. Administrative Eulings and Opixions. Since the last amendment of the Act to Regulate Com- merce, of June, 1906, the Commission has occupied consider- able time in giving administrative construction to various provisions of the law for the guidance of both shippers and carriers. To secure the best results of legislation with the least possible delay there was obvious need of a correct and uniform interpretation of the statute. Therefore, without reference to questions arising in particular eases, and to avoid unnecessary controversy, the Commission has consid- ered it its duty to construe the law in advance wherever it appeared obscure or ambiguous, so that the obligations of the railroads and the rights of the public might be promptly understood. This has resulted in numerous rulings explain- ing the Commission's view of the meaning and application of the different sections and paragraphs of the statute. These rulings have, in practically every instance, been accepted by the carriers, even in cases where their legal advisers were not entirely in accord with the opinion of the Commission. The benefits of this course are beyond question. The Com- mission has endeavored to adopt a workable construction of the law in all cases, and has, as a rule, announced its con- 73 Annual Reports of I. C. C, 21st (1907), 22d (1908). § 16] INTEESTATE TKANSPOETATION. 44 elusions in matters of importance only after conference and discussion with representative shippers and traffic officials.'^* These rulings are promulgated from time to time in cir- cular form and are distributed to interested persons. Other inquiries are answered by individual Commissioners as in- formal rulings which were authorized or approved by the Commission in conference/^ The Commission has stated that "numerous questions as to the meaning and application of various provisions of the statute are submitted from time to time in correspondence and personal interviews. Many of these questions are of great practical importance, and not a few of them difficult of so- lution. It is the policy of the Commission to answer all proper inquiries of this kind with an indication of its views upon the points presented. If a given question relates to matters of common interest or frequent occurrence, the offi- cial opinion is usually announced in conference rulings, tariff circulars, and the like, which are thereupon printed and distributed for general information. In most instances these rulings have been accepted as correct expositions of the law and subsequent practices brought into conformity therewith. By this means a comprehensive code of rules is in process of development, the observance of which operates with increasing influence to promote just and impartial con- duct. Moreover, the rules so promulgated have the highly beneficial effect of avoiding a multitude of contentions which otherwise would come to the Commission in the form of individual complaints. This method of administration, which aims to prevent uncertainty and dispute by an author- itative construction of the act, appears to be regarded with special favor, and it is believed that the efforts of the Com- mission in this direction are of distinct and permanent value.'"" The authority of the Interstate Commerce Commission to make general orders in proper cases seems to be substan- 74 Twenty-First Annual Report of I. C. C. (1907). 75 Twenty-Second Annual Report of I. C. C. (1908). 76 Twenty-Third Annual Report of I. C. C. (1909). 45 OEGANIZATION OP COMMISSION. [§ 16 tially affirmed by the Supreme Court of the United States in the Import Rate Case," as the opinion delivered therein by Mr. Justice Shiras contains the following: "That if the Commission, instead of confining its action to redressing, on complaint made by some particular person, firm, corporation or locality, some specific disregard by com- mon carriers of provisions of the Act, proposes to promul- gate general orders, which thereby become rules of action to the carrying companies, the spirit and letter of the Act require that such orders should have in view the purpose of promoting and facilitating commerce, and the welfare of all to be afiEected, as well the carriers as the traders and consumers of the country." The Court further stated, however, in this case: "That, if the Commission has power, of its own motion, to promulgate general decrees or orders, which thereby be- come rules of action to common carriers, such exertion of power must be confined to the obvious purposes and direc- tions of the statute, since Congress has not granted it legis- lative powers." The Commission's view as to its authority under the law in this respect is further indicated by its repeated announce^ ment that it "will not express opinions on abstract ques- tions; nor on questions presented by ex parte statements of facts; nor on questions of the construction of the statute when no controversy is pending."" 11 B. Tariff Regulations. Definiteness, clearness and simplicity in stating transpor- tation charges, uniformity in applying the rate so stated, and stable conditions, are ends aimed at in the law and sought by the Commission in administering it. Prior to the enactment of the amended law the time of notice of changes in rates required by the Act was too short 77 Texas & Pacific Railway Co. y. Interstate Commerce Commission (1895), 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666. 78 Tenth Annual Report of I. C. C. (1896). § 16] INTERSTATE TRANSPORTATION. 46 to give stability to conditions of transportation, even if the terms of law had been carefully observed. Tariffs vrere is- sued upon statutory notice and upon no notice at all. Op- portunities to get business were met by issuing a tariff "expiring with this shipment;" by quotation of rates found in some other carrier's tariffs and applicable via another route; by quotation of rates not found in any tariff; by for- warding under regular rates and refunding an agreed-upon portion thereof, and by forwarding under regular tariff rates and agreeing to "protect" any rate of any competing car- rier. As a necessary outcome of such practices, the official files of tariffs were very voluminous, and contained an endless number of contradictions and conflicts. No one not di- rectly interested in or connected with this work can appre- ciate the chaotic condition of the carriers' tariffs at the time the amended Act became effective. As a practical matter, it was necessary to accept the tariffs then on file as the only ones under which business and transportation could continue. To bring order out of this condition of chaos, the Commission, after exhaustive conferences with traffic of- ficials of carriers, formulated a code of regulations govern- ing the construction of tariffs, which was promulgated to be- come effective May 1, 1907, and June 1, 1907, as to freight and passenger tariffs, respectively. The code is modified or supplemented by the Commission from time to time, as experience demands, and in this way many misunderstandings and differences of opinion are har- monized. The Commission has said that: "The underlying purpose is to maintain all of the substantive and important features of the spirit and letters of the law, and at the same time impose as little hardship, expense or inconvenience as possible upon either carriers or their patrons. "Lax methods on part of carriers in years gone by re- sulted in the practical abandonment of many rate schedules and in adopting others in lieu thereof, without properly can- celing from the files of the Commission the schedules so dis- carded. The Commission's regulations require each carrier 47 OEGANIZATION OF COMMISSION. [§16 to provide an index of its tariffs, and a methodical check of such indexes against the files of the Commission has been undertaken. In this way the records and files of the car- riers and of the Commission are being brought into har- mony with each other, and thousands of old and obsolete tariffs, some of them dating as far back as 1887, have been, and are being, formally and lawfully canceled from the files of the Commission. "Every instance in which a tariff containing rates or rules that conflict with another tariff", or that are uncertain and ambiguous in their terms, is superseded by a tariff that is free from those features, reduces the number of controver- sies between shippers and carriers involving the proper charge to be made for a service rendered. The Commis- sion's regulations do not permit the use of indefinite or vague rules in rate schedules, and the Commission has re- quired the elimination and abandonment of certain pro- visions which heretofore were freely and generally used, but which led to endless disputes, and, in some instances, made it utterly impossible for even the most expert to determine definitely which was the lawful rate among two or more rates that might be claimed to apply, or did, in fact, apply, but which were in conflict with each other. "Under former practices, and the tariff conditions which grew up thereunder, there were multitudes of instances in which overcharges were claimed by shippers and in which parts of the sums paid were subsequently refunded by car- riers. Simplification and directness in the preparation of rate schedules, and elimination of ambiguities and conflicts, must operate to reduce the number of such instances. Mani- festly, better understandings and more satisfactory condi- tions will obtain when the correct charges are assessed and paid in the first instance, and when questions of over- charges, undercharges and refunds occur but rarely, and then only because of clerical error. "The Act authorized the Commission to determine and prescribe the form in which the schedules required by the § 16] INTEESTATB TEANSPORTATION. 48 Act shall be prepared and arranged." It requires that the Commission and the public shall be given statutory notice of changes in rate schedules.*" It authorized the Commis- sion, in its discretion, and for good cause shown, to allow changes upon less than statutory notice, and to modify the requirements of the sixth section in respect to publishing, posting and filing tariffs. The Commission has prescribed certain regulations as to the form in which rate schedules shall be prepared and arranged, and which govern the pub- lishing, posting and filing of such schedules, and in the en- forcement of such regulations it exercises the right and au- thority to refuse to accept for filing rate schedules which, to an extent justifying that action, fail to fulfill the re- quirements of the law or of the regulations. While a care- ful scrutiny of all of the features of every rate schedule filed with the Commission is wholly impracticable, all sched- ules offered for filing are scrutinized as to certain features, and gradually, more and more, are being subject to careful examination and criticism by the Commission. Minor faults are brought to the attention of the carriers in correspond- ence. It is confidently believed that, as a result of this practice and of the work that has been done in laying the foundation for greatly improved rate schedules, much more progress will be apparent in the future. It is gratifying to note that the Commission is now receiving assurances from many traffic officers of carriers that regulations which, at first, were thought oppressive and impracticable, have proven to be wholly practicable and desirable, and it is frequently stated that, even if the regulations were withdrawn, prac- tices established thereby would not be forsaken. The Com- mission has also received from shippers many expressions of commendation of its work in this line and gratification at the results thereof. "In a few instances the Commission has been obliged to 79 Act, Section 1. 80 Ibid. 49 ORGANIZATION OF COMMISSION. [§ 17 resort to formal orders for the reissue of old schedules that were in exceptionally bad shape. "In the twelve months ended November 30, 1908, there were filed with the Commission 228,490 tariff publications, all containing changes in rates and rules governing trans- portation. ' '^^ § 17. Reports of Investigations, Decisions, Orders and Re- quirements of the Oamiuission. "Whenever an investigation is made by the Commission, it is its duty to make a report in writing in respect thereto, which states the conclusion of the Commission, together with its decision, order, requirement in the premises, and in ease damages are awarded, such report 'is to include the findings of fact on which the award is made. All reports of inves- tigations made by the Commission are entered of record, and a copy thereof furnished to the complainant, and to any common carrier who may be a party defendant. The Com- . mission is authorized to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such au- thorized publications are competent evidence of the reports and decisions of the Commission therein contained in all courts of the United States and of the several states, with- out further proof or authentication thereof.^^ The reports and findings of the Commission upon the evi- dence relate only to the ascertainment and presentation of all the material facts necessary to fairly and justly present the merits of the controversy, and the Commission does not report evidence which is only cumulative, or which is im- material or irrelevant, or mere details of evidence already embraced in substantial facts stated, upon which the findings and conclusions of the Commission are made.^' 81 Annual Reports of I. C. C, 21st (1907), 22d (1908). 82 Act, Section 14. 83 Riddle, Dean & Co. v. P. & L. E. R. R. Co., 1 I. C. R. 773. Eegulation — 4. §§ 18, 19] INTERSTATE TKANSPOETATION. 50 § 18. Correspondence with the Commission by Carriers on Freight and Passenger Matters. The Commission has ruled that the best results and under- standings will be reached if the conducting of ordinary cor- respondence between the carriers and the Commission is confined to as few persons as possible. Request was made that the traffic manager or the general freight and passen- ger agents of each road designate not more than two offi- cials, or other representatives, to respectively conduct the correspondence -with, the Commission on freight and passen- ger matters, and to promptly advise the Commission of such appointments.^* § 19. Library of the Commission. The literature relating to the subject of public transpor- tation in this country exists very largely in the form of offi- cial reports and documents, in pamphlets, and in articles which have appeared from time to time in the periodicals. The number of comprehensive works is small, and anyone who desires to study the question must seek his information from literally hundreds of sources, many of which, unfor- tunately, are not to be found even in the largest general libraries. For this reason the Commission has assigned to its li- brary the work of assembling at Washington for permanent preservation, as far as it can be obtained, the great mass of fragmentary and more or less elusive literature, in order that it may be made accessible to those interested in the sub- ject, and that thus may be secured a permanent record of the discussions of theories and experiences connected with transportation matters in this and other countries. The first systematic attempt of the Commission to establish a trans- portation library was made in 1894, and grew out of the necessity for taking care of the books, pamphlets and docu- ments acquired in the performance of its duties. In 1898 more comprehensive plans in this regard were adopted, and 84 Rule 210, Con. Rul. Bui. No. 4 (Nov. 16, 1908). 51 ORGANIZATION OP COMMISSION. [§ 19 the scope of the eifort somewhat enlarged. Since that time accessions to the library have largely increased, until at present the collection comprises many thousand volumes and pamphlets. This collection embraces the official reports and documents of the several State railroad commissions, as well as Congressional and legislative documents bearing upon railroad and transportation matters. It also includes gen- eral and special treatises on the various phases of railroad affairs in this and other countries, foreign official reports and documents, reports of railroad companies, proceedings of the railway technical and other organizations, files of railway periodicals, American and foreign proceedings, and papers of commercial bodies dealing with internal commerce and transportation, and a variety of books and pamphlets relating in one way or another to railroad operations in earlier as well as in more recent years. All of this material is properly arranged and indexed by subject, so as to be available for immediate and practical use. The collection is steadily enlarged by the purchase, from time to time, of publications deemed desirable by donations from various sources, and by exchange with other libraries of such duplicates of books and pamphlets as have been ac- cumulated. The aim of the Commission is to accumulate a collection of books, railway commission reports, articles re- lating to railroad reports of foreign countries, and, in fact, to obtain all literature which would be of interest to the student of railway development, management and regula- tion. The work calls for study and indefatigable attention. The library of the Commission is of increasing value each year as a reference library. The Commission serves many requests for information by mail on questions pertaining to the railroad and transportation subjects, and the library has proven valuable to the Commission in answering such in- quiries. The value of the library is demonstrated by its constant aid to the Commission, to students of railway eco- nomies all over the country, to representatives of the press, §§ 30, 21] INTERSTATE TEANSPOETATION. 53 to foreigners temporarily in Washington,' and to the grow- ing needs of the public in general.*^ §20. Annual Reports of the Commission to Congress. The Interstate Commerce Commission is required by the Act to make a report on or before the first day of December of each year, -which is transmitted to Congress.^" This re- port contains such information and data collected by the Commission as may be considered of value in the determina- tion of questions connected with the regulation of commerce, together with such recommendations as to additional legis- lation relating thereto as the Commission may deem neces- sary. This report also contains the names and compensation of the persons employed by the Commission.*^ These re- ports, in addition to a review of the cases decided by the Commission and the courts during the year, contain a vast amount of useful information relating to economic trans- portation questions, and are very valuable. The Commission, under the terms of the original Act, re- ported annually to the Secretary of the Interior, and the report was transmitted by him to Congress. This arrange- ment, however, was changed by the amendment to the Act of March 2, 1889,^* and it now reports annually direct to Congress. § 21. Publications of the Commission. The more important publications issued by the Interstate Commerce Commission are as follows : Annual Eeport of the Interstate Commerce Commission to Congress. Annual Eeport on the Statistics of Railways in the United States. Preliminary Report on the Income of Railways in the United States. 85 Annual Reports of I. C. C, 14th (1900), 17th (1903), 18th (1904). 80 Act, Sections 14 and 21. 87 Act, Section 21. 88 25 Statutes at Large, 855. 53 OEUANIZATION OF COMMISSION. [§ 22 Eailways in the United States in 1902. (Parts 2, 4 and 5.) Part II. A forty-year review of changes in freight rates. De- velopment of freight classifications. Changes in competitive rates. Changes in local rates. Part IV. State regulation of railways. Railway control through commissions. Classes of State railroad commissions. Extension of regulative power of railroad commissions. Method of appoint- ing railroad commissioners. Way of control hy railroad commis- sions. Tendency as to incorporation of railway companies. State railway statutes. Part V. State taxation of railways and other transportation agencies. State railway taxation. Changes in laws of taxation. This report was planned to consist of five parts. Parts I. and III. have never been published. Tariff Circular, containing Regulations Governing the Con- struction and Filing of Freight Tariffs and Classifications and Passenger Rate Schedules; also Administrative Rulings and Opinions. Tariff Circular, containing Regulations Governing the Con- struction and Filing of Tariffs and Classifications of Express Companies; also Administrative Rulings and Opinions. Interstate Commerce Law, as amended to date, and Acts supplementary thereto. Conference Rulings Bulletin, which contains rulings which have been made by the Commission in conference upon ques- tions raised or submitted in correspondence. §22. Distribution of OfiBcial Circulars and Rulings of the Commission. The Commission has ruled that it is obviously imprac- ticable for it to place copies of its official circulars and rul- ings in the hands of all the offices of carriers or to furnish copies for distribution among them. That the officers at the head of the traffic departments, or in charge of the passen- ger and freight departments, respectively, will designate for each road one official in the passenger department and one in the freight department- (unless both are under one head officer and one appointment is considered sufficient), to whom such circulars and rulings are to be sent, and arrange § § 23, 34] INTERSTATE TRANSPORTATION. 54 for such designated officials to disseminate the information among the interested officers and agents. That report of these appointments be made to the Commission as early as possible. With the view of giving prompt information to those who may be interested, the Commission will, upon ap- plication, place upon its mailing list regularly organized boards of trade, chambers of commerce, commercial clubs and shippers' associations, for the purpose of mailing to them copies of official circulars containing rulings and orders of the Commission.^' §23. Quotations from Correspondence of the Commission. The Commission has requested that, if extracts from its correspondence are sent out by carriers, such extracts be made sufficiently full, or that sufficient of the correspond- ence be presented to give a complete view and understanding of the meaning of the ruling and of the circumstances dis- cussed, or of the inquiry answered therein.'" § 24. Powers and Duties of the Commission. It should be carefully observed that the Interstate Com- merce Commission does not exercise all the power of super- vision over interstate commerce conferred upon Congress by the commerce clause in the Federal Constitution. The jurisdiction of the Commission is confined to that con- ferred by the Act to Regulate Commerce, and Acts supple- mentary thereto and amendatory thereof.'^ Section 1 of the Act to Regulate Commerce enumerates in specific terms the commerce subject to its jurisdiction and control. Inasmuch as the jurisdiction of the Commission is strictly statutory, it must look to what is expressed in or necessarily 89 Rule 211, Con. Rul. Bui. No. 4 (Nov. 16, 1908) ; Rule 42, Tariff Cir- cular 16-A. BO Rule 29, Con. Rul. Bui. No. 4 (Jan. 13, 1908). 91 Railroad Commission of Kentucky v. L. & N. Rd. Co. et al. (1904), 10 I. C. C. R. 173; Traders' & Travelers' Union v. P. & R. Rd. Co. (1887), 1 I. C. C. R. 122; 1 I. C. R. 371. 55 ORGAXIZATION" OF COMMISSION. [§ 34 implied by the Interstate Commerce Law to decide issues arising under it.'- The Commission has no common law jurisdiction.'^ For instance, it has no power to enforce the specific performance of contractual obligations nor to award damages for the breach of such agreements;'* nor to consider a claim in the nature of an action of trespass;'^ nor to grant relief to a shipper for injury to goods shipped resulting from delay in transit, detention, loss, breakage, rotting, or other deteriora- tion or damage not attributable to a violation of any of the provisions of the Act.'" The Commission has certain original jurisdiction; for ex- ample, the power to determine the reasonableness of estab- lished rates rests primarily with that body, and not with the courts.'' The Commission is the tribunal instituted by the government to inquire primarily into the fact as to whether a discrimination exists.'^ Until an inquiry is there made, and a finding and order had, the jurisdiction of a court of equity may not be invoked to restrain an alleged discrimination." The jurisdiction of the Commission, and its powers and duties relating to the various subjects of transportation, are treated of in this work under appropriate chapters. 92 Brewer v. C. of Ga. Ry. Co. et al. (1898), 84 Fed. Rep. 258. 93 Jones V. St. Louis & S. F. Rd. Co. (1907), 12 I. C. C. R. 144. 94 Traders' & Travelers' Union v. P. & P. Ry. Co. (1897), 1 I. C. R. 371; 1 I. C. C. R. 122; Commercial Club of Omaha v. C. & N. W. Ry. Co. (1897), 7 I. C. C. R. 386. 95 Council V. W. & A. Rd. Co. (1887), 1 I. C. C. R. 339; 1 I. C. R. 638. 96 Duncan v. A., T. & S. F. Ry. Co. (1893), 6 I. C. C. R. 85; 4 I. C. R. 385. 9TT. & P. Ry. Co. V. Abilene Cotton Oil Co. (1907), 204 U. S. 426; 51 L. ed. 553, 27 Sup. Ct. Rep. 350; Clements v. L. & N. R. Co. (1907), 153 Fed. Rep. 979. 98 United States v. M. C. Rd. Co. (1903), 122 Fed. Rep. 544; Railroad Com. of Ohio v. W. & L. E. Rd. Co. (1907), 12 I. C. C. R. 398. 99 United States v. M. C. Rd. Co. supra. CHAPTEE III. STATUS OF INTERSTATE COMMERCE COMMISSION. §25. Nature and Legal Status of Body. The Federal Constitution provides^ that: "The judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish. The Judges both of the Supreme and inferior Courts shall hold their office during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Congress, in establishing such "inferior courts" and pre- scribing their jurisdiction, must confer upon the Judges appointed to administer them the constitutional tenure of office — that of holding "during good behavior" — before they can become vested with any portion of the judicial power of the Government. The Act to Eegulate Commerce does not undertake to create an "inferior court" or to invest the commission appointed thereunder with judicial powers and functions. The Interstate Commerce Commission is vested with only administrative powers of supervision and investigation, which falls far short of making it a court, or its actions judicial, in the proper sense of the term. Its action or conclusion upon matters brought before it for investigation is neither final nor conclusive, nor is it vested with authority to enforce its decisions and awards. It hears, investigates, and reports upon complaints made before it, but subsequent judicial proceedings are contemplated and provided for as the remedy for the enforcement of the order or report of the Commission in all cases where the party against whom its decision is rendered does not yield 1 Art. 3, Section 1, Federal Constitution. 56 57 NATURE AND LEGAL STATUS OF COMMISSION. [§25 voluntary oibedience thereto. The Commission is charged with the duty of investigating and reporting upon complaints ; and the facts found or reported by it are given the force and weight of prima facie evidence in such judicial pro- ceedings as_ may thereafter be had for the enforcement of its recommendation or order. ^ The opinion of the Com- mission has not the eifeet of a judicial determination; and in a proceeding to enforce it the Court proceeds to hear the complaint de novo} The functions of the Commission are those of referees or special commissioners, appointed to make preliminary investigation of, and report upon, matters for subsequent judicial examination and determin- ation. In respect to interstate commerce matters covered by the law, the Commission may be regarded as the general referee of each and every Circuit Court of the United States upon which the jurisdiction is conferred of enforcing the rights, duties, and obligations recognized and enforced by said law.* The Interstate Commerce Commission is not invested and cannot be invested, under the Constitution, with either, purely legislative or judicial power. Its functions are neces- sarily restricted to the performance of administrative duties, with such quasi-jaAicial powers as are incidental and necessary to the proper performance of its duties.^ An investigation conducted before the Commission and the order of the Com- mission thereon, is not a judicial proceeding as that term is used with reference to Courts of general jurisdiction.' The process of a Federal Court cannot be exercised in aid of an investigation before the Commission as a proceeding, before an administrative body is not a "case" or "contro- versy" within the constitutional powers of the Federal Courts.'' Such proceeding is only gwasi-judicial and admin- 2Ky. & Ind. Edge. Co. v. L. & N. R. Co., 37 Fed. Rep. 567 (1889). 3 Shinkle, Wilson & Kreis Co. v. L. & N. R. R. Co. et al., 67 Fed Rep. 690; 5 I. C. R. 282 (1894). iKy. & Ind. Edge. Co. v. L. & N. R. Co., 37 Fed. Rep. 567 (1889). 5 1. C. C. V. C, N. O. & T. P. Ry. Co., 76 Fed. Rep. 183 (1898). 6 I. C. C. V. L. & N. Rd. Co., 73 Fed. Rep. 409 (1896). 7 Re Application of I. C. C. for an order upon W. G. Erimson et al. to answer questions, 4 I. C. R. 315 (1892). § 25] INTERSTATE TEANSPOETATION. 58 istrative in its nature.' The gitasi- judicial powers of the Commission are similar to those exercised by the Commis- sioner of Patents, and, in many respects, 'by the heads of the various departments of the executive branch of the Government.^ In relation to transportation rates, the Com- mission may be regarded as an expert tribunal.^" The Commission is a body corporate with legal capacity to be a party plaintiff or defendant in the Federal Courts, and may apply by petition for the enforcement of its orders.^^ It is a creature of statute, and its authority is derived from the acts of Congress creating it and from its various amendments. Its function is to administer the Act to Regu- late Comm.erce and acts supplementary thereto and not to enforce conditions found in Federal and other charters. While a violation of the conditions of the Acts of Congress granting the rights of way may be grounds for forfeiture, the remedy is in the Courts, as it is not the province of the Commission to enforce compliance with conditions sub- sequent found in railroad charters. ^- The Commission being essentially an administrative body, in the examination of formal complaints, it should get at the real substance of the issue, presented unembarrassed by technical considerations.^' It deals with practical prob- lems.^* The Commission, in passing upon the reasonableness or unreasonableness of a rate acts as an administrative body having quasi-judicial functions; when it determines what the rate should have been and shall be in the future; it s I. C. C. V. L. & N. Rd. Co., 73 Fed. Rep. 409 (1896). 9 I. C. C. V. C, N. O. & T. P. Ry. Co. (1894), 64 Fed. Rep. 981. 10 I. C. C. V. L. & N. Rd. Co. et al., 118 Fed. Rep. 613 (1902). 11 T. & P. Ry. Co. V. I. C. C, 162 tJ. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940 (1896). 12 A. T. Haines v. C, R. I. & P. Ry. Co. et al., 13 I. C. C. R. 214 (1908). 13 Missouri & Kansas Shippers' Association v. M., K. & T. Ry. Co., 12 I. C. C. R. 438 (1907). UN. Y. C. & H. R. R. R. Co. et al. v. I. C. C. (1909), 168 Fed. Rep. 131. 59 NATURE AND LEGAL STATUS OF COMMISSION. [§ 25 exercises certain legislative functions ; when it computes the damages or reparation due the shipper by reason of the enforcement and collection of a rate unreasonable to the extent that it exceeds a rate which is declared to be reason- able, there is mere mathematical determination of the dam- ages the shipper should receive. Reparation or damages, therefore, in all matters which concern rates, are reduced, after ■ the Commission has determined what the reasonable rate should have been, to the simplicity of a mathematical calculation; elements of conjecture, speculation, and infer- ence are entirely eliminated. In the matters of discrimina-, tion, however, of undue preference, prejudice, or disad- vantage, a different field is entered, where the services of a jury may be necessary, not only by reason of the Seventh Amendment to the Constitution, but by the very nature of the subject matter itself. It may be proper, and the Com- mission has so considered in many instances to award dam- ages in cases of the kind just described, and such awards have been complied with by the carriers, but the proofs to support such awards should be very clear and exact; they should be free from surmise and conjecture. ^^ The Commission is the tribunal instituted by the Govern- ment to inquire primarily into the facts as to whether dis- crimination exists. To it the shipper may bring his griev- ance; before it the railroads have a right to be heard. Until an inquiry is then made, and a finding of an order had, the jurisdiction of a court of equity may not be invoked, because for the court to take hold at that primary point in the case would be to transfer the jurisdiction of the Interstate Commerce Commission — the jurisdiction to first inquire into the fact — to a court of equity.^' 15 L. R. Washer Grain Co. v. M. Pac. Ry. Co., 15 I. C. C. R. 147. "United States v. M. C. Rd. Co. (1903), 122 Fed. Rep. 544. CHAPTER IV. TRANSPORTATION AND COMMON CARRIERS SUBJECT TO THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. Section 26. Provisions in the Act to Regulate Commerce enumerating the Car- riers and Transportation subject thereto. 27. Synopsis of the Carriers and Transportation subject to the Act. 28. Interstate Transportation. 29. Intraterrltorlal Transportation. 30. Transportation within the 'District of Columbia. 31. Foreign Commerce. 32. Interstate Railroads. 33. State Railroads engaged in Interstate Commerce. 34. Express Companies. 35. Sleeping Car Companies. 36. Fast Freight Lines. 37. Terminal and Belt Railroads handling Interstate Traffic. 38. Foreign Railroads. 39. Bridges and Bridge Companies. 40. Ferries and Ferry Companies. 41. Pipe Lines. 42. Private Car Companies. 43. Inland Water Carriers. 44. Ocean Carriers. 45. Intraterrltorlal Common Carriers. 46. Street Railways within the District of Columbia. 47. Receivers of Common Carriers. 48. Successors to Common Carriers and Purchasers pendente lite. 49. Nature of Organization of the Carrier Immaterial to the attaching of Jurisdiction of Commission. 60 61 TEANSPOETATION AND CAEEIEES SUBJECT TO ACT. [§ 26 §26. Provisions in the Act to Regulate Commerce Enumer- ating the Carriers and Transportation subject thereto. The only parties subject to the jurisdiction of the Inter- state Commerce Commission are those common carriers en- gaged in the .transportation of persons or property as de- scribed in the Act to Regulate Commerce, as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. Section 1 of the Act {as amended June 29, 1906): "That the provisions of this Act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural and artificial gas by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shall be construed and held to be common carriers within the meaning and purpose of this Act, and to any common carrier or carriers engaged in the transporta- tion of passengers or property wholly by railroad or partly by railroad and partly by water, when both are used under a common control, management, or arrangement for a con- tinuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from one place in the United States to an adjacent foreign country, or from any place in the United States, through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country. § 26] INTERSTATE TRANSPORTATION. 62 Express Companies and Sleeping-Gar Companies included. "The term 'common carrier,' as used in this Act, shall in- clude express companies and sleeping-ear companies. Term "Railroad" defined. ' ' The term ' railroad, ' as used in this Act, ■ shall include any bridges and ferries used or operated in the connection with any railroad, and also to all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also in- clude all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of per- sons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the trans- portation of any of said property. Term "Transportation" defined. "The term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in the connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration, or icing, stor- age, and handling of property transported; and it shall be the duty of every common carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto." Term "Carrier" defined. Section 6 of the Act provides that "wherever the word 'carrier' occurs in the Act, it shall be held to mean 'common' carrier. '"^ 1 At common law a common or public carrier is one who under- takes as a business to carry from one place to another the goods of all persons who may apply for such carriage, provided the goods are of the kind which he professes to carry, and the persons so applying will 63 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 27 § 27. Synopsis of the Carriers and Transportation Subject to the Act. 1. Aay corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural and artificial gas : (a) By pipe lines, (b) Partly by pipe lines and partly by railroad. (e) Partly by pipe lines and partly by water. Who shall be con- sidered and held to be common car- riers within the meaning and pur- pose of the Act to Regulate Com- merce. 2. Any common carrier or carriers engaged in the trans- portation of passengers or property : (a) Wholly by railroad. (b) Partly by railroad and partly by water, when both are used under a common control, management, or arrange- ment, for a continuous carriage or shipment. (c) Express companies. (d) Sleeping ear companies. As follows: From one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Terri- tory, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of agree to have them carried upon the terms prescribed by the carrier, and who, if he refuses to carry such goods for those who are willing to comply with his terms, becomes liable to an action by the party^ aggrieved by such refusal. 4 Elliott R. R., § 1391 et seq. ; 5 Thomp. Neg. (2d.) § 6415; 2 Amer. & Eng. Encyclopedia of Law, Title "Carriers"; Redfleld, "Railway Carriers," 1; Hutchins, "Carriers," § 47; Dwight v. Brewster, 1 Pick. (Mass.) 50; The Niagara v. Cordes, 62 U. S. 21, 16 L. ed. 41; Gisbourn v. Hurst, 1 Salk. 249; Gordon V. Hutchinson, 1 Watts. & S. (Pa.) 285; Orange Bank v. Brown, 3 Wend. (N. Y.) 161; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. Car. 355. § 27] INTERSTATE TEANSPORTATION. 64 property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent for- eign country.^ Examples. 1. From one State of the United States to another State of the United States. 2. From one State of the United States to a Territory of the United States. 3. From one State of the United States to the District of Columbia. 4. From a Territory of the United States to a State of the United States. 5. From a Territory of the United States to another Ter- ritory of the United States. 6. From a Territory of the United States to the District of Columbia. 7. From one place in a Territory of the United States to another place in the same Territory. 8. From the District of Columbia to a State of the United States. 9. From the District of Columbia to a Territory of the United States. 10. Between places within the District of Columbia. 11. From any place in the United States to an adjacent foreign country. 12. From any place in the United States through a for- eign country to any other place in the United States. 13. From any place in the United States to a foreign country and carried from such place to a port of trans- shipment.' 2 Act to Regulate Commerce, Section 1. For copjr of the Act, see Appendix. 3 Quaere: How about the property shipped from any place in the United States to a foreign country and carried from such place to a 65 TEANSPOKTATION AND CAERIEES SUBJECT TO ACT. [§ 28 14. Prom a foreign country to any place in the United States and carried to such place from a port of entry, either in the United States or an adjacent foreign country. It is clear from the language of the Act that Congress had in view the whole field of commerce (excepting com- merce wholly within a State) as well that between the States and Territories as that going to or coming from for- eign countries.* The provisions of the Act to Regulate Commerce, con- strued in the light of the principles that apply to interstate commerce as enunciated by the courts of the United States, must be understood as intended to regulate all the commerce subject to the exclusive jurisdiction of Congress, including the agencies and instrumentalities employed and the com- modities carried with only the limitations found in the Act itself.^ § 28. Interstate Transportation. T[ A. CoNTEOL OF Congress ovee Inteestate Commbece. The commerce clause of the Federal Constitution provides that "The Congress shall have power * * * to regulate commerce * * * among the several States, and with the Indian tribes."^ Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and p;i-operty, and the navigation of public waters for that purpose, as well as the purchase, sale and exchange of commodities. The power to regulate interstate commerce vested in Congress is the power to prescribe the rules by which it shall be governed — that is, the conditions upon port of transshipment, where such, port of transshipment is in an adja- cent foreign country? The first section of the Act does not seem to place any limitation as to the location of the port of transshipment. *T. & P. Ry. Co. V. I. C. C, 162 U. S. 197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940. 5 Mattingly v. Penna. Co., 2 I. C. R. 806. e Federal Constitution, Article 1, Section 8, Paragraph 3. Eegulation — 5. § 28] INTERSTATE TEANSPOETATION. 66 which it shall be conducted; to determine when it shall be free from, and when subject to, duties or other exactions. With reference to the subjects of commerce which are local and limited in their nature or sphere of operation the States may prescribe regulations until Congress intervenes and as- sumes control. When the subjects of commerce are na- tional in character and require uniformity of regulation affecting alike all the States, the power of Congress is ex- clusive. The commerce between the States which consists in the transportation of persons and property between them, is a subject of natiojial character and requires uniformity of regulation. Congress alone can deal with such transporta- tion, and its non-action is a declaration that it shall remain free from burdens imposed by State legislation.' ^ Gloucester Ferry Co. v. State of Pennsylvania (1885), 114 U. S. 196; 29 L. ed. 158, 5 Sup. Ct. 826. When the suhjects of commerce are national in character and require uniformity of regulation, the power of Congress is exclusive. In addition to the above case of Gloucester Ferry Co. v. Pennsylvania see Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Oilman v. Philadelphia, 3 Wall. (U. S.) 713, 18 L. ed. 96; Henderson v. Mayor, 92 U. S. 259, 23 L. ed. 543; Mobile Co. v. Kimball, 102 U. S. 691, 26 L. ed. 241; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct. 1091. In general, when exercised by Congress, the power is exclusive of all State interference. Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 6 L. ed. 23; Sinnot v. Davenport, 22 How. (U. S.) 227, 16 L. ed. 243; Hall V. De Cuir, 95 U. S. 485, 24 L. ed. 547. Inaction by Congress amounts to a declaration that all commerce within its exclusive control shall remain free and untrammeled. In addition to the above case of Gloucester Ferry Co. v. Pennsylvania, see Welton V. Missouri, 91 U. S. 275, 23 L. ed. 347; Escanaba Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. 185; Henderson v. Mayor, 92 U. S. 259, 33 L. ed. 543; Brown v. Houston, supra. The power vested in Congress covers navigation; Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 6 L. ed. 23; Passenger Cases, 7 How. (U. S.) 283, 12 L. ed. 702. "Commerce is a term of the largest import * * * The power to regulate it embraces all the instruments by which such commerce may be conducted." Welton v. Mo. supra. The principles decided in Gibbons v. Ogden and Brown v. Maryland, supra, were cited in the following cases: In re Eugene Debs et al., 158 U. S. 564; 39 L. ed. 1092, 15 Sup. Ct. 900; Brennan v. City of Titusville, 153 U. S. 289; 38 L. ed. 719, 14 Sup. Ct. 829; Harmon v. City of Chicago, 147 U. S. 396; 37 L. ed. 216, 13 Sup. Ct. 306; Bowman v. C. & N. W. 67 TEANSPOETATION AND CAEEIEBS SUBJECT TO ACT. [§ 28 If any commercial transaction reaches an entirety in two or more States, and if the parties dealing with reference to that transaction deal from different States, then the whole transaction is a part of the interstate commerce of the United States, and subject to regulation by Congress under the Constitution.' The power was vested in Congress to insure uniformity of commercial regulation against discriminating State legislation. It covers property which is transported as an article of com- merce among the States, from hostile, or interfering State legislation until it has mingled with and become a part of the general property of the country, and protects it even after it has entered a State, from any burdens imposed by reason of its foreign origin. The inaction of Congress in prescribing rules to govern interstate commerce, is equiva- lent to its declaration that such commerce shall be free from any restrictions.' It seems the better view that the Territories and the Dis- trict of Columbia are to be regarded as "States" as that word is used in the commerce clause of the Constitution.^" For example: A line of railway lying partly in the Dis- trict of Columbia and partly in the State of Maryland, is Ry., 125 U. S. 465; 31 L. ed. 700, 8 Sup. Ct. 689, 1062; Leloup v. Port of Mobile, 127 V. S. 640, 32 L. ed. 311, 8 Sup. Ct. 1101; Crutclier v. Commonwealth* of Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. 851; Fargo v. Michigan, 121 U. S. 230, 30 L. ed. 888, 7 Sup. Ct. 857; Robbins v. Taxing District of Shelby County, Tenn., 120 U. S. 489, 30 L. ed. 694, 7 Sup. Ct. 592; Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 7 Sup. Ct. 4; Beatrice Moran v. City of New Orleans, 112 U. S. 69, 28 L. ed. 653, 5 Sup. Ct. 38; Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785, 6 Sup. Ct. 635; N. & W. Ry. Co. V. Commonwealth of Pennsylvania, 136 U. S. 114, 34 L. ed. 394, 10 Sup. Ct. 958; Hays v. PaclHc Mail S. S. Co., 58 U. S. 596, 15 L. ed. 254; Cooley v. Board of Port Wardens, 12 How. (U. S.) 299, 13 L. ed. 996. 8 In Re Charge to Grand Jury (1907), 151 Fed. Rep. 834. sWelton V. Mo., 91 U. S. 275; 23 L. ed. 347. 10 Matter of Wilson, 10 N. M. 32, 60 Pac. 73; 48 L. R. A. 417; Hanley v. K. C. S. Ry., 187 V. S. 617; 23 Sup. Ct. Rep. 214; 47 L. ed. 333; Stoutenburgh v. Hennick, 129 TJ. S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 637; Re Hennick, 5 Macky, D. C. 489. § 28] IISTTERSTATE TRANSPORTATION. 68 subject to the provisions of the Act to Eegulate Commerce. Commerce carried on between the State of Maryland and the District of Columbia is not subject to regulation by Mary- land laws, and is therefore within the jurisdiction of Con- gress." 1[ B. Extent of the Interstate Commerce Subject to the Provisions of the Act to Eegulate Commerce. Under the terms of Section 1 of the Act to Regulate Com- merce the following interstate transportation is subject to the jurisdiction of the Interstate Commerce Commission' and to the provisions of the Act: It applies to such interstate transportation wholly by rail- road, and partly by railroad and partly by water, when, and only when, both the railroad and water are used by the respective carriers under a common control, management, or arrangement for a continuous carriage or shipment.'^ 1. Oil or other commodity, except water and except natural and artificial gas, transported by any corporation or any person or persons: (a) By pipe lines. (b) Partly by pipe lines and partly by railroad. (c) Partly by pipe lines and partly by water. Who shall be con- sidered and held to be common car- riers within the meaning and pur- pose of the Act to Regulate Com- merce. 2. Passengers or property transported by any common carriers : (a) Wholly by railroad. (b) Partly by railroad and partly by water, when both are used under a common control, management, or arrange- ment, for a continuous carriage or shipment. (c) Express companies. .(d) Sleeping-car companies. " Willson V. Rock Creek Ry. of D. C. (1887), 7 I. C. C. R. 83. 12 In the Matter of Jurisdiction over Water Carriers, 15 I C C R. 205. 69 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 28 As follows: From one State or Territory of the United States, or the District of Columbia to any other State or Territory of the, United States or the District of Columbia, or from any place in the United States through a foreign country to any other place in the United States. Examples. 1. Prom the State of Pennsylvania to the State of Illinois. 2. From the State of Indiana to the Territory of New Mexico. 3. From the State of New Jersey to the District of Columbia. 4. From the Territory of Arizona to the State of Nevada. 5. From the Territory of New Mexico to the Territory of Arizona. 6. From the Territory of Arizona to the District of Columbia. 7. From the District of Columbia to the State of Ken- tucky. 8. From the District of Columbia to the Territory of New Mexico. 9. From Chicago, 111., to Boston, Mass., via the Grand Trunk Railway System which passes through the Dominion of Canada. ^ C. Character oe Shipment as Interstate Commerce DETERMINED BY CONTRACT OF SHIPMENT. The determinative feature of a through shipment is an agreement between the parties at the inception of the car- riage, that the freight shall be transported to the point of destination.^^ "Whether a shipment is local or interstate depends upon the contract for transportation. Thus, where the contract entered into is for transportation from a point in one State to a point in another State, the character of the shipment as interstate commerce will not be changed to that of a 13 Re Alleged Unlawful Rates and Practices in the Transportation of Cotton by the K. C, M. & B. Rd. Co. et al. (1889), 8 I. C. C. R. 121. § 28] INTERSTATE TRANSPORTATION. 70 local shipment without a change to that effect in the agree- ment between the owner of the goods and the carrier.^* Whenever an article destined to a place without the State is started in transit, it becomes the subject of interstate commerce.^^ "When a commodity has been delivered to a carrier to be transported on a continuous voyage or trip to a point be- yond the limits of the State where delivered to the carrier, the character of interstate commerce attaches thereto.^" TJ D. Effect op Temporary Stoppage in State of Interstate Commerce while in transit. Where the transportation of goods destined to a point without the State has actually begun, temporary stoppage vidthin the State, without the intention of abandoning the original movement, will not deprive the transportation of the character of interstate commerce.^'' When a commodity is purchased and shipped from one State to a point in another State the transaction is indelibly impressed with the character of interstate commerce, and the various mutations through which the article passes, and the handlings which it undergoes while in transit, are merely incidental to the movement.^' Tf E. Transportation beginning and ending in one State, BUT passing through AN ADJOINING StATE OE TeRRITOET. Goods transported between two points in the same State, where a large part of the route extends through another State or Territory, are subject to the provisions of the Act to Eegulate Commerce.^' 14 Gulf, C. & S. P. Ry. Co. V. Texas (1907), 204 U. S. 403; 51 L. ed. 540, 27 Sup. Ct. Rep. 360, affirming 97 Texas, 274, 78 S. W. 495, citing Coev. Errol, 116 U. S. 517; 29 L. ed. 715; 6 Sup. Ct. Rep. 475. 15 The Daniel Ball, 10 Wall. (U. S.) 557; 19 L. ed. 999; Ex Parte Koehler, Rec. (1887), 30 Fed. Rep. 807. IS Houston, etc., Co. v. Insurance Co. of North America (1896), 89 Texas, 1, 32 S. W. 889; 30 L. R. A. 713. 17 D. & H. Co. V. Commonwealth of Pennsylvania (1888), 2 I. C. R. 222. IS Hood & Sons v. D. L. & W. Rd. Co., 17 I. C. C. R. 15 (1909). "Hanley v. K. C. S. Ry. Co. (1903), 187 U. S. 617; 23 Sup. Ct. Rep. 71 TKANSPOKTATION AND CARRIERS SUBJECT TO ACT. [§ 28 A shipment from New York City to Buffalo, N. Y., by way of New Jersey and Pennsylvania, is interstate com- merce, and subject to the provisions of the Interstate Com- merce Act.™ The Supreme Court of the United States has held that the Eailroad Commission of Arkansas cannot, without violating the commerce clause of the Federal Constitution, fix and enforce rates for the continuous transportation of goods be- tween two points within the State of Arkansas, where a large part of the route is outside of the State, through the Indian Territory or Texas.^^ Mr. Justice Holmes said : ' ' The transportation of these goods certainly went outside of Ar- kansas, and we are of the opinion that, in its aspect as com- merce, it was not confined within the State. Suppose that the Indian Territory were a State, and should try to regu- late such trafiic, what would stop it? Certainly not the fic- tion that the commerce was confined to Arkansas. If it could not interfere, the only reasop would be that this was commerce among the States. But if this commerce would have that character as against the State supposed to have been formed out of the Indian Territory, it would have it equally as against the State of Arkansas. If one could not regulate it the other could not. No one contends that the regulation could be split up according to the jurisdiction of State or Territory over the track, or that either State or Terri- tory may regulate the whole rate. There can be but one rate fixed by one authority, whether that authority be Ar- kansas or Congress. ^^ "It is decided that navigation on the high seas between 214; 47 L. ed. 333. See also New Orleans Cotton Exchange v. C, N. 0. &. T. P. Ry. Co. et al., 2 I. C. C. R. 375; 2 I. C. R. 289. 20 United States v. D., L. & W. Rd. Co. (1907), 152 Fed. Rep. 269; see The Daniel Ball, 10 Wall. (U. S.) 557, 19 L. ed. 999. 211. C. C. V. L. & N. Rd. Co. (1902), 190 U. S. 273; 47 L. ed. 1047, 23 Sup. Ct. 687. 22 Wabash, St. L. & P. Rd. Co. v. Illinois, 118 U. S. 557; 30 L. ed. 244; 1 I. C. R. 31; 7 Sup. Ct. Rep. 4; Covington & C. Bridge Co. v. Ken- tucky, 154 U. S. 204; 38 L. ed. 962; 4 I. C. R. 649; 14 Sup. Ct. Rep. 1087; Hall V. De Cuir, 95 U. S. 485; 24 L. ed. 547. § 28] INTERSTATE TRANSPOKTATION. 72 ports of the same State is subject to regulation by Con- gress,^^ and is not subject to regulation by the State ;^* and, although it is argued that these decisions are not conclusive, the reason given by Mr. Justice Field for his decision in the last cited case disposes equally of the case at bar. To bring the transportation within the control of the State, as part of its domestic commerce, the subject transported must be during the entire voyage under the exclusive jurisdiction of the State. "^= T[ P. Tkanspoetation eegm ant place in the United States THROUGH A FOREIGN COUNTRY TO ANT OTHER PLACE IN THE United States. Section 1 of the Act to Regulate Commerce subjects the transportation of passengers and property as described therein to the jurisdiction of the Interstate Commerce Com- mission and to the provisions of the Act, when shipped from any place in the United States through a foreign country to any other place in the United States. For example : A movement of passengers or property from Chicago, 111., to Boston, Mass., via Grand Trunk Rail- way System, which passes through the Dominion of Canada in reaching destination, is subject, under the provisions of the Act, to the jurisdiction of the Interstate Commerce Com- mission. Congress derives its power to regulate and control such commerce from the constitutional power to regulate com- merce among the several States.^* 23 Lord V. Goodall, N. & P. S. S. Co., 102 U. S. 541; 26 L. ed. 224. 2* Pacific Coast S. S. Co. v. Railroad Commissioners, etc., 9 Sawy. (U. S.) 253; 18 Fed. Rep. 10. 25 9 Sawy. (U. S.) 258; 18 Fed. Rep. 13. Decisions in point are State ex rel. Railroad Warehouse Commission v. C. St. P. M. & O. R. Co., 40 Minn. 267; 3 L. R. A. 238; 2 I. C. R. 519; 41 N. W. 1047; Sternberger V. Cape Fear & Y. Valley R. Co., 29 S. C. 510; 2 L. R. A. 105; 7 S. B. 836. See also Milk Producers' Pro. Assn. v. D. L. & W. R. Co., 7 I. C. C. R. 92, 160. 26 United States Constitution, Article 1, Section 8, Paragraph 3. 73 TKANSPOETATION AND CAEEIEES SUBJECT TO ACT. [§ 39 U G. Interstate Teanspoetation handled by a State Eaileoad. See "State Railroads Engaged in Interstate Commerce" Sec- tion SS, 'post. § 29. Intraterritorial Transportation. TJA. Conteol of Congress over Inteateeeitoeial Teans- poetation. The United States Constitution^** provides that "The Con- gress shall have power to dispose of and make all needful rules and regulations respecting the territory or other prop- erty belonging to the United States." "The power of Congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory and no power to govern it when acquired. The power to acquire territory, other than the territory northwest of the Ohio River (which belonged 'to the United States at the adoption of the Constitution) is derived from the treaty-making power and the power to declare and carry on war. The in- cidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty and by cession, is an incident of national sovereignty. The Ter- ritory of Louisiana, when acquired from France, and the Territories west of the Rocky Mountains, when acquired from Mexico, became the absolute property and domain of the United States, subject to such conditions as the govern- ment, in its diplomatic negotiations, had seen fit to accept relating to the rights of the people then inhabitants of those Territories. Having rightfully acquired said Territories, the United States government was the only one which could im- pose laws upon them, and its sovereignty over them was 26a Ibid. § 29] INTEESTATE TEANSPOETATION. 74: complete. No State of the Union had any such right of sov- ereignty over them ; no other country or government had any such right. These propositions are so elementary, and so necessarily follow from the condition of things arising upon the acquisition of new territory, that they need no argument to support them. They are self-evident. Chief Justice Mar- shall, in the case of the American & 0. Ins. Cos. v. S66 Bales of Cotton/'' said: 'Perhaps the power of governing a Terri- tory belonging to the United States, which has not, by be- coming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.' "^' Congress may legislate for Territories as a State does for its municipal organizations; it has full and absolute legis- lative authority over the people of the Territories and over all the departments of the Territorial government.^' Its power does not depend upon the special grant of power, such as the commerce clause^ of the Constitution.^" T[ B. Application op the Act to Teanspoetation between POINTS WITHIN A TBEEITOEY. Section 1 of the Act to Kegulate Commerce provides that it shall apply to "any common carrier or carriers of pas- sengers or property, wholly by railroad, or partly by rail- road and partly by water, when both are used under a com- mon control, management, or arrangement for a continuous carriage or shipment * * * from one place in a Terri- tory to any /)ther place in the same Territory." 2T American and O. Ins. Cos. v. 356 Bales of Cotton, 1 Pet. (U. S.) 511-542, 7 L. ed. 243. 28 Late Corporation of Latter-Day Saints v. United States (1890), 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. 792. 29 First National Bank of Brunswick v. County of Yankton (1880), 101 U. S. 129, 25 L. ed. 1046. 30 Baer Bros. Merc. Co. v. Mo. Pac. Ry. (1908), 13 I. C. C. R. 329; reaffirmed in Carl NoUenberger v. M. P. Ry. Co. et al., 15 I. C. C. R. 595. 75 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 30 From this it will be noted that the Interstate Commerce Commission has absolute jurisdiction over intraterritorial transportation within the terms of the Act to Regulate Commerce. For example: The transportation of either pas- sengers or property from Phoenix, Arizona, to Flagstaff, Ari- zona, is subject to the provisions of the Act to Regulate Commerce and to the jurisdiction of the Interstate Com- merce Commission. §30. Transportation within the District of Columbia. T[ A. Control oe Congress over Transportation within the District oe Columbia. The United States Constitution provides that "Congress shall have power to exercise legislation in all cases whatso- ever over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of government of the United States * * *."3i In pursuance of the above constitutional provision, Vir- ginia, by an Act of her legislature of December 3, 1789, ceded to the United States that part of her territory subse- quently known as the County of Alexandria. Congress passed an Act accepting the cession. Maryland ceded to the United States the County of Washington, and Congress ac- cepted that cession also. The two counties constituted a territory ten miles square, which Congress set apart as the seat of government of the United States, and organized as the District of Columbia, over which the Constitution of the United States requires that Congress should exercise exclu- sive legislation in all cases whatsoever. However, in July, 1846, Congress retroceded that part of the territory which was ceded by the State of Virginia, and the District of Co- lumbia now comprises that part which was ceded by the State of Maryland. Exclusive legislation and exclusive jurisdiction over the District of Columbia is conferred upon Congress by the Con- 31 Federal Constitution, Article 1, Section 8, Clause 17. § 31] INTERSTATE TEANSPORTATION. 'J'6 stitution.^2 The District of Columbia has no legislative power, it being a municipal corporation bearing the same relation to Congress that a city does to the legislature of the State in which it is incorporated.'^ The legislative power of Congress over the District of Co- lumbia is plenary, and does not depend upon the special grant of power, such as the commerce clause of the Consti- tution.'* T[ B. Application of the Act to Teanspoktation within THE District of Columbia. By the first section of the Act to Eegulate Commerce Con- gress has conferred upon the Interstate Commerce Commis- sion control over the transportation within the District of Columbia, and all the rules and regulations prescribed by that body are applicable to such transportation. All the provisions of the Act to Eegulate Commerce are fully ap- plicable to the common carriers enumerated therein when engaged in transportation within the District of Columbia, and the traffic transported by such common carriers is gov- erned thereby. Congress has vested in the Interstate Commerce Commis- sion power to enforce obedience to the provisions of the District of Columbia Street Railways Act,'° which provides certain rules and regulations for the government of street railways within the District of Columbia. The Act also re- quires such street railways to obey such regulations and orders as may be made by the Commission. § 31. Foreign Commerce. TJA. Control of Congress over the Foreign Commerce of THE United States. Congress assumed control over the commerce between the 32 Cohens v. Virginia (1820), 6 Wheat. (U. S.) 264, 5 L. ed. 257. 33 United States v. McFarland (1907), 20 App. D. C. 552. 3* The Employers' Liability Cases (1908)., 207 U. S. 463, 28 Sup. Ct. 141. 36 District of Columbia Street Railways Act, approved May 23, 1908. See Appendix for copy of Act. 77 TEANSPOETATION AND CAREIEKS SUBJECT TO ACT. [§ 31 United States and foreign countries under the commeree clause in the Federal Constitution, which provides:'* "That Congress shall have power to regulate coromerce with for- eign nations. * * *." T[ B. General Scope of the Foreign Commerce subject to THE Act. In opening the debate on the 14th day of April, 1886, and explaining the bill for the information of the United States Senate, the chairman of the Senate Select Committee, in dis- cussing this subject, said: "While the provisions of the bill are made to apply mainly to the regulation of the interstate commerce, in order to regulate such commerce fairly and effectively it has been deemed necessary to extend its application also to certain classes of foreign commerce which are intimately inter- mingled with interstate commerce, such as shipments be- tween the United States and adjacent countries by railroad, and the transportation by railroad of shipments between points in the United States and ports of transshipment or of entry, when such shipments are destined to or received from a foreign country on through bills of lading. To avoid any uncertainty as to the meaning of these provisions in regard to what may be at the same time in some instances State and foreign commerce, it is expressly provided that the bill shall not apply to the transportation of properties wholly within one State and not destined to or received from a for- eign country." As bearing upon the construction of these provisions of the first section of the Act to Regulate Commerce relating to foreign commerce, it is significant that, after this explana- tion of this section, thus made by the chairman of the Sen- ate Select Committee, in all the subsequent debates that fol- lowed, there seems to have been no difference of opinion in regard to it in either House of Congress, and it was enacted 38 Federal Constitution, Article 1, Section 8, Paragraph 3. § 31] INTEESTATE TEANSPOETATION. 78 literally as reported by the Senate Select Committee. Con- gress has here in clear, intelligible and terse language, de- fined the field of transportation to be regulated, as well as the carriers who were to be supervised in the administra- tion of the statute. That part of this field relating to for- eign commerce was the transportation of this commerce be- tween the port of entry and place of destination upon the through bill of lading, such place of destination being in the United States, and such port of entry being either in the United States or in a foreign country adjacent to the United States. Congress did not undertake to regulate its transportation on the high seas, nor at the foreign ports of shipment, nor in the foreign country adjacent to the United States. But in the one instance, as soon as that commerce is brought through a port of entry in the United States upon a through bill of lading destined to a place in the United States, and is taken into the United States by a rail carrier or by a car- rier part rail and part water, for transportation to its place of destination, it then comes within the jurisdiction of the Act to Regulate Commerce. Also, when that commerce upon a through bill of lading, destined to a place within the United States, comes through a port of entry in an adjacent foreign country, and is brought within the territorial juris- diction of the United States, it then becomes subject to the regulation of the Act to Regulate Commerce." And in other instances the same principles are true as to commerce shipped from any point in the United States to a place in a foreign country, whether adjacent or otherwise, only in the reverse order. As to foreign commerce, exports and imports, the first sec- tion of the Act states just what transportation with foreign countries shall be subject to the Interstate Commerce Com- mission, and limits that jurisdiction to the transit from the place of origin in the United States to the port of trans- 37 New York Board of Trade & Transportation v. P. R. R. Co. et al., 3 I. C. R. 417. 79 TEANSPOETATION AND CARRIERS SUBJECT TO ACT. [§ 31 shipment, and from the port of entry to destination, either in the United States or an adjacent foreign country, thus confining the jurisdiction exclusively to the part of the transportation wholly within the United States.^* This subject may, for convenience in treating, be divided into the following classes: 1. Transportation of passengers or property from any place in the United States to an adjacent foreign country. 2. Transportation of property from any place in the United States to a foreign country (not adjacent) and car- ried from such place to a port of transshipment. 3. Transportation of property from a foreign country (not adjacent) to any place in the United States and carried to such place from a port of entry, either in the United States or an adjacent foreign country. It will be noted that the provisions of the Act to Regu- late Commerce apply to transportation to or from a foreign country, although the internal movement may be wholly within one State.^' These diiferent classes are treated of in their respective order in the following paragraphs: ^ C. Thanspoetation of Passengers or Peopertt prom ant PLACE IN THE UNITED STATES TO AN ADJACENT FOR- EIGN Country. The transportation of passengers or any property as de- scribed in Paragraph B, ante, from any place in the United States to an adjacent foreign country is subject to the pro- visions of the Act to Regulate Commerce. The word "adjacent" as used in the Act to modify the words "foreign country," would seem to mean adjacent in the sense of the possibility of substantial continuity of rails.*" Indeed, as was pointed out in the report to the Senate 38 In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. 39 Re Investigations of Acts of Grand Trunk Ry. Co. (1889), 3 I. C. R. 87; 2 1. C. C. R. 496. 40 Lykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. § 31] INTERSTATE TEANSPOETATION. 80 on the original Act to Eegulate Commerce in the year 1886, this meaning is made plain. The report said: "While pro- visions of the bill are made to apply mainly to the regulation of interstate commerce, in order to regulate such commerce fairly and affectively it has been deemed necessary to extend its application also to certain classes of foreign commerce which are -intimately intermingled with interstate commerce, such as shipments between the United States and adjacent countries by railroad. ' ' Under the provisions of the Act, it will be noted it is not necessary that transportation destined to an adjacent foreign country be transported over more than one State in passing into such adjacent foreign country in order for the juris- diction of the Interstate Commerce Commission to attach. Whenever the carriage of property originates in the United States and goes to a destination in an adjacent for- eign country such carriage is subject to the Act.*'^ For ex- ample : A movement of passengers or property from Lan- sing, Mich., to Montreal, Canada, which passes out of the State of Michigan directly into the Dominion of Canada; or one from Columbus, Ohio, destined to Toronto, Canada, which travels via Toledo, 0., and the Great Lakes; or one which originates at Dallas, Texas, destined to Monterey, Mexico, and which passes directly out of the State of Texas into Mexico, is subject to the jurisdiction of the Interstate Commerce Commission and to the provisions of the Act to Regulate Commerce. Tf D. Transportation of Property from ant place in United States to a Foreign Country (not adjacent) and carried from such place to a port of transshipment. Section 1 of the Act to Regulate Commerce states that its provisions shall apply "to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment * * *." *i Re Investigations of Acts of Grand Trunli Ry. Co. (1889), 3 I. C. R. 87; 2 1. C. C. R. 496. 81 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 31 The Interstate Comineree Commission in its control over such foreign commerce is limited to the regulation of such traffic, whether by railroad or by a combination of rail and water carriers to the port of transshipment. For ex- ample : A shipment moving from Pittsburg, Pa., to Liver- pool, England, via the port of New York is only subject to the jurisdiction of the Interstate Commerce Commission up to the port of New Tork. It is not necessary that a shipment destined to a foreign country be transported over more than one State in order for the jurisdiction of the Commission to attach. A con- signment of cotton shipped from Dallas, Texas, to Galveston for export is subject to the Act to Regulate Commerce, and the rates on such shipment are subject to Federal regula- tion, although the movement is wholly within a State. And, likewise, a shipment of machinery from Syracuse, N. T., to New York City upon through billing to a European point comes under the control of the Federal authority. Traffic transported under a through bill of lading from a point within the United States through a port of transshipment to a point in a foreign country is within the provisions of the Aet.*^ See "Ocean Carriers" Section 44, post, for further explanation. If E. Teansportation of Property from a Foreign Country (not adjacent) to any place in United States and CARRIED TO SUCH PLACE FROM A PORT OF EnTRY, EITHER IN United States or an Adjacent Foreign Country. Section 1 of the Act to Regulate Commerce provides that its provisions shall apply "to the transportation in like man- ner of property shipped from a foreign country to any place in the United States and carried to such place from a port of entry, either in the United States or an adjacent foreign country." As the jurisdiction of the Interstate Commerce Commission is limited to the language of Section 1 of the *2 T. & P. Ry. Co. V. I. C. C, 162 U. S. 197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940. Regulation — 6. § 33] INTBKSTATE TKANSPOKTATION. 82 Act, it will be seen that the jurisdiction over shipments im- ported into the United States from foreign countries is eon- fined to that portion of the haul from the port of entry, in either the United States or an adjacent foreign country, to the point of destination. Thus, the jurisdiction of the Commission over a shipment of olive oil from Italy to Louis- ville, Ky., via the port of New Orleans, is limited to the movement from New Orleans to Louisville. A shipment of wine from France to Albany, N. T., imported via the port of New York, is subject to the provisions of the Act to Eegulate Commerce from New York City to Albany, although such movement is confined within one State. It is not' necessary to the attaching of the jurisdiction of the Commission over import traffic that such shipments pass through more than one State.*^ See "Ocean Carriers," Section 4:4:, post, for further explana- tion. §32. Interstate Railroads. TI A. Defined. An interstate railroad as distinguished from an intrastate railroad (that is, one lying wholly within one State) is a road which operates beyond the borders of a single State; a railroad which operates from one State or Territory of the United States, or the District of Columbia to any other State or Territory of the United States, or the District of Columbia. Or, in other words, one which passes from one State over the boundary line of another State of the Union. A line of railway operating partly in the District of Columbia and partly in the State of Maryland, is subject to the provisions of the Act to Eegulate Commerce and to the jurisdiction of the Interstate Commerce Commission.** The Act provides that the term "railroad" as used there- 43 Railroad Commission of Georgia v. Clyde S. S. Co. et al. (1892), 4 I. C. R. 120; 5 I. C. C. R. 324. iiWillson V. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. R. 83. 83 TEANSPOKTATION AND CAEKIEES SUBJECT TO ACT. [§ 32 in shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether used or operated under a contract, agreement, or lease, and shall include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated therein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property.*^ The Coal Creek & New River Railroad Co. was a cor- poration chartered by the State of Tennessee and owned a short road wholly within that State, but never owned any rolling stock or operated its road. The road was used and operated under contract by companies owning interstate roads as a means of conducting interstate traffic in coal. Held, That the short road was one of the facilities and instrumentalities of . interstate commerce, and as such was subject to the provisions of the Act to Regulate Commerce." TIB. Steam Railroads. The Act to Regulate Commerce makes no difference as to the classes of railroads which shall be subject to its provi- sions. That is, no reference is made as to the propelling power used in their operation. Section 1 of the Act simply subjects to the jurisdiction of the Interstate Commerce Com- mission those common carriers engaged in the transporta- tion of interstate or foreign traffic, wholly by "railroad," or partly by "railroad" and partly by water, etc.*^ How- ever, as there are but two classes of railroads engaged in commerce at the present time, i. e., steam and electric, these are the ones which are comprehended within the meaning of the term "railroad." Therefore all steam roads are subject to the provisions of the Act to Regulate Commerce when they are engaged in *5 Act, Section 1. For copy of Act see Appendix. *6 Heck et al. v. B. T., Va. & Ga. R. Co. (1888), 1 I. C. R. 775. 47 Act, Section 1. § 33] INTEKSTATB TEANSPOETATION. 84 the transportation of passengers or property as described in the Act.*^ H C. Elbcteio Eailways. As stated above, an interstate electric railway is subject to the jurisdiction of the Interstate Commerce Commission to the same extent as a steam railroad. An amendment to a tariff provided: "The above rates will only apply on shipments handled by steam power and will not apply when handled by electrical power." Held, That the limitation of the rates to shipments handled by steam power is unlawful and must be eliminated from the tariff." The defendant owned and operated an electric railroad between the City of Washington, D. C, and Chevy Chase Lake in Montgomery County, Maryland. The railroad was used mainly for the conveyance of passengers, but cars containing merchandise were frequently handled. Held, That such electric railroad was subject to the provisions of the. Act to Eegulate Commerce.^" The Act makes no distinction between Railroads that are operating by electricity and those that use steam; nor has the Commission thought at any time to make such distinction. Both are subject to the Act when engaged in interstate transportation and are entitled to equal consideration in controversies before the Commission. Moreover, progress in the science of electricity in the rapid increase of new de- vices for its application have led many practical railroad men to think that we may be measurably near its general use as the chief motive power in transportation.^^ *8 Ibid. 19 See Rule 2, Con. Rul. Bui. No. 4 (Nov. 4, 1907). sowillson V. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. R 83. 61 C. & M. Elect. R. R. Co. v. 111. Cent. R. R. Co. et al., 13 I. C. C. R. 20. See West End Improvement Club v. Omaha & Council Bluffs Rail- way & Bridge Co. et al. (1909), 17 I. C. C. R. 239. 85 TRANSPOETATION AND CAEKIEES SUBJECT TO ACT. [§ 33 §33. State Railroads Engaged in Interstate Commerce. HA. Peesent Law^ The proviso in the first section of the Act to Regulate Commerce, "that the provisions of the Act shall not apply to the transportation of passengers or property or to the receiving, delivering, storage, or handling of property wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid" — that is, by continuous carriage or shipment — only excludes from regulation the purely internal commerce of a State, that which is confined within its limits, which originates and ends in the same State. When a State carrier engages in interstate commerce it becomes a national instrumentality for the purpose of such commerce, and is subject to the regu- lations prescribed by the national authority. It cannot limit its obligations in that business, but must serve the business offered impartially and without preference or discrimina- tion.^^ Any carriage of goods which crosses a State line is inter- state commerce and the fact that the transportation from one State to another is accomplished in whole or in part through the agency of independent and unrelated carriers up to and from the State line, does not affect the character of the transportation in this respect. For, whenever an article destined to a place without the State is shipped or started therefor, it becomes the subject of interstate com- merce, and the carriers employed in the transportation there- of, although neither of them pass from one State to another, are subject as instrumentalities of such commerce, to national legislation and control.^^ 52 Mattingly v. Penna. Co. (1890), 2 I. C. R. 806; 3 I. C. C. R. 592. It should be noted that this case was decided by the Commission prior to the Hepburn amendment of June 29, 1906, which changed the punctua- tion. However, it expresses the existing law on this point. 53 Ex Parte Koehler, Rec. (1887), 30 Fed. 867; following The Daniel Ball (10 Wall. (U. S.) 557, 19 L. ed. 999), wherein the Court said: "In this case it is admitted that the steamer was engaged in shipping and § 33] INTERSTATE TRANSPORTATION. 86 A railroad company whose road lies entirely within the limits of a single State becomes subject to the Act to Eegu- late Commerce by participating in a through movement of traffic from a point in another State to a point in the State within which it is located, although its own service is per- formed entirely within the latter State." And of course the same is true of a State road which becomes one of the members to a through route on a shipment from a point in another State, which passes through the State in which the road lies. A connecting railroad carrier over whose line an inter- transporting down Grand River goods destined and marked for other States than Michigan and in receiving and transporting up the river goods brought into the State, and without its limits; but insomuch as her agency in transportation was entirely within the limits of the State, and she did not run in connection with, or in continuation of, any lines of vessels or railways leading to other States, it is contended that she was engaged entirely in domestic commerce. But this conclusion does not follow. So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan, and destined to places within that State, she was engaged in commerce between the States; and, however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for, whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agen- cies are employed in transporting the commodity, some acting entirely in one State and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation it Is subject to the regulation of Congress." The doctrine of The Daniel Ball has been repeatedly recognized and approved in later decisions of the Supreme Court. See Coe v. Errol, 116 U. S. 517; 29 L. ed. 715, 6 Sup. Ct. Rep. 475; Wabash, etc., Ry. v. Illinois, 118 U. S. 557; 30 L. ed. 244, 7 Sup. Ct. Rep. 4; Kidd v. Pearson, 128 TJ. S. 1; 32 L. ed. 346, 9 Sup. Ct. Rep. 6; Louisville, etc., Ry. Co. V. Mississippi, 133 TJ. S. 587; 33 L. ed. 784, 10 Sup. Ct. Rep. 348; Norfolk, etc., R. Co. v. Pennsylvania, 136 U. S. 114; 34 L. ed. 394, 10 Sup. Ct. Rep. 958. See also Hood & Sons v. D. L. & W. Rd. Co. (1909), 17 I. C. C. R. 15. 54Baer Bros. Merc. Co. v. Mo. Pac. Ry. (1908), 13 I. C. C. R. 329; reafHrmed in Carl NoUenberger v. M. P. Ry. Co. et al., 15 I. C. C. R. 595. 8T TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 33 state shipment passes is engaged in interstate commerce with respect to such shipment and subject to the law regulating the same, although its line may lie wholly within one State. °^ The importation into one State from another is the test of interstate commerce. Every part of every transportation of articles of commerce in a continuous passage from a com- mencement in one State to a prescribed destination in an- other is a transaction of interstate commerce. Every carrier who transports such goods through any part of such con- tinuous passage is engaged in interstate commerce, whether the goods are carried upon through bills of lading or are rebilled by the several carriers.^" When a corporation engages in interstate commerce, it subjects itself to all the regulative provisions concerning such commerce constitutionally prescribed by Congress.^^ Where a carrier operating within a State filed and pub- lished a joint rate on oil from a point in another State on the line of a connecting carrier to a point on its own line, and out of such rate paid the connecting carrier for its part of the service; Held, That the two carriers were oper- ating under a common arrangement for the carriage of the oil in interstate commerce.^^ Where a carrier filed and published a rate between two points on its line within a State, and also procured copies of the tariff schedules of a terminal line extending to a point in another State and filed and published such schedules in the manner required by law: Held, That the carrier thereby became an interstate carrier as to shipments made under such rate.^" A railroad not otherwise subject to the Act, subjects itself 55 United States v. Standard Oil Co. of Indiana (1907), 155 Fed. Rep. 305. sewillson v. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. sTCassatt et al. v. Mitchell C. & C. Co. (1907), 150 Fed. Rep. 32; 81 C. C. A. 80. 68 United States v. Standard Oil Co. of Indiana (1907), 155 Fed. Rep. 305. 59 Ibid. § 33] INTEESTATB TRANSPOETATION. 88 to the jurisdiction of the Commission and the provisions of the Act, if it transports express matter for an express company that is subject to the Act."" The above is the present law governing the jurisdiction of the Interstate Commerce Commission over State railroads engaged in interstate commerce. However, prior to the Hepburn amendment of June 29, 1906, which changed the punctuation of Section 1 of the Act, the law was different, and State railroads were not subject to the provisions of the Act to Regulate Commerce, unless they were operating in connection with some other carrier under a common control, management, or arrangement for a continuous carriage or shipment of interstate commerce. Under the present Act the test of jurisdiction is not the arrangement under which the freight is handled, but rather the character of the trans- portation itself. The plain language of the Act subjects any carrier which engages in the movement of traffic by rail from a point in one State to a point in another State to its provisions.^^ For a detailed explanation as to the change in the law and for decisions under the old law see infra, "Common Con- trol, Management, or Arrangement for a Continuous Carriage or Shipment." T[ B. Common Control, Management, oe Arrangement for a Continuous Carriage or Shipment. By its terms, the provisions of the original Act applied to "any common carrier or carriers engaged in the trans- portation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment." The decisions and intimations of the Federal Courts, including the Supreme Court of the United States, were generally to the effect that the words "under a common control, management, 60 Rule 197, Con. Rul. Bui. No. 4 (June 21, 1909). 81 Leonard v. K. C. S. Ry. Co. et al. (1908), 13 I. C. C. R. 573. 89 TEANSPOETATION AND CAEEIEHS SUBJECT TO ACT. [§ 33 or arrangement," applied to a route composed wholly by railroads, as well as by one which was partly by railroad and partly by water. See infra, for the syllabi of the most important decisions by the Federal Courts and the Inter- state Commerce Commission under the old law. The significance of this holding is obvious. The railroad located wholly within a State does not transport passengers upon its own line from a point in one State to a point in another. It was not, therefore, subject to the provisions of the Act to Regulate Commerce, unless by common owner- ship or control or by some arrangement it became part of a line which did handle traffic between the States. Whether a State railroad was subject to the Act depended upon whether it had entered into such arrangement with other railroads, and since the making of the arrangement was a voluntary act upon the part of the State railroad, that rail- road could exercise its election to be or not to be subject to Federal jurisdiction. Otherwise stated, the jurisdiction of the Interstate Commerce Commission was not determined by the character of the transportation in which the State railroad engaged, but by the nature of the arrangement under which that business was handled. As changed by the Hepburn amendment of June 29, 1906, the provisions of the Act now apply to "any common carrier or carriers en- gaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management, or ar- rangement for a continuous carriage or shipment) from one State or Territory of the United States, etc." The words "common control, management, or arrangement" now plainly apply only to transportation which is partly by railroad and partly by water. "With respect, therefore, to transpor- tation entirely by rail the words in parentheses may be eliminated from the statute. The ternis of the Act now apply to "any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad from one State or Territory in the United States, or the § 33] INTERSTATE TRANSPORTATION. 90 District of Columbia, to any other State or Territory of the United States, or the District of Columbia." Under the present Act the test of jurisdiction is not the arrange- ment under which the freight is handled, but rather the character of the transportation itself. The plain language of the Act subjects any carrier which engages in the move- ment of freight by rail from a point in one State to a point in another State to its provisions."^ ^ C. Syllabi of some of the most important cases affect- ing State Eaileoads decided by the Federal Courts AND THE Commission under the old law prior to June 39, 1906. "The phrase, 'common control, management, or arrange- ment for a continuous carriage or shipment,' in the first section of the Act to Regulate Commerce was intended to cover all interstate traffic carried through or over all rail or part water and part rail lines. The receipt successively by two or more carriers for transportation of trafSc shipped under through bills of lading for continuous carriage over their lines is assent to a common arrangement for such continuous carriage or shipment, and previous formal agree- ment between them is not necessary to bring such transpor- tation under the terms of the law."^^ The United States Supreme Court decided in C. N. 0. & T. P. Ry. Co. V. I. C. C.°* that "when a railroad company enters into the carriage of foreign freight by agreeing to receive the goods by virtue of foreign through bills of lading and to participate in through rates and charges, it thereby becomes part of a continuous line, not made by the consolida- tion with the foreign company, but made by an arrangement for a continuous carriage or shipment to another, and thus becomes amenable to the Federal Act, in respect to such inter- 62 Leonard v. K. C.-S. R. Co. (1908). 13 I. C. C. R. 573. 63 Railroad Commission of Georgia v. Clyde S. S. Co. et al. (1892), 4 I. C. R. 120; 5 I. C. C. R. 324. 64 C, N. O. & T. P. Ry. Co. v. I. C. C. (1896), 162 U. S. 184; 40 L. ed. 935; 5 I. C. R. 391; 16 Sup. Ct. Rep. 700, socalled "Social Circle" case. 91 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 33 state commerce. A State railroad company which has elected to enter into the carriage of interstate freights, and thus subject itself to the control of the Interstate Commerce Com- mission, cannot limit that control in respect to foreign traffic to certain points on its road, and exclude other points." "When goods are shipped under a through bill of lading, from a point in one State to a point in another, and when such goods are received in transit by a State common car- rier, under a conrventional division of the charges, such car- rier must be deemed to have subjected its road to an ar- rangement for a continuous carriage or shipment, within the meaning of the Act to Eegulate Commerce." And citing C, N. 0. & T. P. By. Co. v. I. C. C, supra,^^ it was decided in the case of the United States, ex rel. Interstate Commerce Commission v. Seaboard By. Go.,^^ "that the ship- ment of freight over a number of lines of railroad from a point in one State to a point in another, under an agree- ment, express or implied, for a conventional division of the charges among the different roads, constitutes a common agreement for a continuous carriage or shipment, within the meaning of the Interstate Commerce Act, and a road par- ticipating in such agreement is subject to the provisions of the Act, though its line lies entirely within one State, and its part of the joint charge is its regular local rate." A railroad company whose line is wholly within a single State, and which, although it carries freight destined to points beyond such State, never issues bills of lading to points beyond its own line, receives no freight on through bills of lading, and has no arrangement with other roads for a conventional division of charges, or for a common control or arrangement, is not within the purview of the Interstate Commerce Act, or of the Supplement Act of August 7, 1888."^ A State common carrier which accepts and transports in- 65 c., N. O. & T. P. Ry. Co. V. I. C. C. (1896), 162 U. S. 184; 40 L. ed. 935; 5 I. C. R. 391; 16 Sup. Ct. Rep. 700, socalled "Social Circle" case. 06 I. C. C. V. S. A. L. Ry. Co., 82 Fed. Rep. 563 (1897). 67 i^ C. C. V. Bellaire, Z. & C. Ry. Co. (1897), 77 Fed. Rep. 942^ § 33] INTERSTATE TKANSPOETATION. 93 terstate traffic under through bills of lading will be held to have subjected its line to a common control, management or arrangement for a continuous carriage or shipment within the meaning of the Act, although such carrier charges its full local rates for the service performed by it.°* Where a State common carrier accepts interstate freight under a through rate and bill of lading, it thereby subjects itself to the provisions of the Act to Regulate Commerce."^ The receipt, forwarding and delivery of interstate traffic by connecting carriers was held to establish the existence of a common arrangement between the carriers for a continuous carriage or shipment/" Although goods shipped over several lines from one State to another were not forwarded under through bills of lad- ing, the controlling carrier accepted for its charges a pro- portion of a through rate from point of origin to destina- tion. Held, That the controlling carrier thereby subjected its line to a common control or arrangement within the meaning of section 1 of the Act, although its line was wholly in one State and the proportion of the through rate was its regular local rate.'^ So far as a railroad company, whose line is entirely with- in one State, issues bills of lading over its connecting lines to points in other States, and makes through rates, it falls under the provisions of the Interstate Commerce Act.'^ Railroads which share' in an agreed rate on traffic to a cer- tain point, and in a precisely equal rate on traffic to an in- termediate point, although on traffic to this point there is added an amount equal to the local rate from that point to the end of the longer haul, which additional exaction is re- ceived by the local road alone, are to be regarded as con- es l. & N. Rd. Co. v. Behlmer (1900), 175 U. S. 648; 20 Sup. Ct. Rep. 209; 44 L. ed. 309. 69 T. & P. Ry. Co. V. Clarke (1893), 4 Tex. Civ. App. 611; 23 S. W. 698. '0 Phelps & Co. V. T. & P. Ry. Co. (1893), 6 I. C. R. 36, 4 I. C. C. R., 363. 71 United States v. Seaboard Ry. Co. (1897), 82 Fed. Rep. 563. 72 Re Annapolis W. & B. R. R. Co. et al. (1887), 1 I. C. R. 315. 93 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 33 stituting a continuous line, subject to the Act to Regulate Commerce.''^ Where a railway company whose road is wholly within the bounds of a single State voluntarily engages as a common carrier in interstate commerce, by making an arrangement for a continuous carriage or shipment of goods or merchan- dise, it is subject, so far as such traffic is concerned, to the regulations and provisions of the Act to Eegulate Com- merce.''* The fact that a railroad lies wholly within one State does not exempt it from the obligations imposed by the In- terstate Commerce Act, if the transportation over it is part of a shipment from one State to another, or to or from a for- eign country. The A. railway connected at T. with the C. railway and the W. railway. Both the A. and the C. rail- ways were engaged in interstate commerce, reaching by their own lines and connections the same regions. By the W. railway they both made connection with other impor- tant railways, and with routes of water transportation. For a considerable time the W. railway charged the same rate for transportation over its line of freight received or des- tined to either of the other railways, but it later withdrew these rates as to the A. railway, and thereafter charged for transportation, over its line, of freight received from or destined to the A. railway, the full local rate of freight al- lowed by statute, which was considerably higher than the rate previously charged to both railways and still charged to the C. railway. There had been no change of condition, and the service rendered to both railways continued to be sub- stantially the same. Held, That the charge of such increased rate was an unlawful discrimination, not justified because the rate charged was the statutory local rate, and the trans- portation over the W. railway was wholly within the State, nor by the fact that the A. railway was a small and weat 73 L. & N. Rd. Co. V. Behlmer (1900), 175 U. S. 648; 20 Sup. Ct. Rep 209; 44 L. ed. 309. 74 Pa. Millers' State Association v. P. & R. R. R. Co. et al. (1900), 8 I. C. C. R. 549. § 34] INTERSTATE TRANSPOETATION. 94 road, whose business was unimportant as compared with that of the C. railway, or that there was no direct connection be- tween the tracks of the A. and W. roads, the tracks of the C. railway being used for switching, it not appearing that the C. railway objected to the use of its tracks; and, accord- ing, that the W. railway should be enjoined from exacting more from the A. railway than from the C. railway for sim- ilar services.'^ § 34. Express Companies. The original Act to Regulate Commerce, approved Febru- ary 4, 1887, made no mention about express companies, and the Interstate Commerce Commission ruled, soon after its organization, that independent express companies were not subject to the Act.''® The jurisdiction of the Interstate Commerce Commission is strictly statutory, and cannot be extended by implication over other subjects than those which the Act defined. It therefore followed that, as express companies were not enumerated among the common carriers declared to be subject to the provisions of the Act, as originally enacted, the Interstate Commerce had no jurisdiction over them. This ruling was adopted by the United States Circuit Court of Missouri in the case of the United States v. Morsman,'''' in which it was decided that express companies, independently organized as corporations for the transaction of the express business on their own account, were not subject to the provisions of the Interstate Commerce Act. Of course, express companies performing a common car- rier business were subject to all the duties and liabilities im- posed by the common law, the laws of the United States and of the several States, but they were not subject to the juris- ts Augusta & S. R. Co. V. Wrlghtsville & T. R. Co. (1896), 74 Fed. Rep. 523. 76 Re Express Companies, 1 I. C. R. 677. 77 United States v. Morsman, 42 Fed. Rep. 448; see also Southern Indiana Exp. Co. v. United States Exp. Co., 92 Fed. Rep. 1022, 35 C. C. A. 172, affirming 88 Fed. Rep. 659. 95 TEANSPOETATION AND CAEEIEES SUBJECT TO ACT. [§§ 35-37 diction of the Interstate Commerce Commission prior to June 29, 1906. By the provision of the Hepburn Act of June 29, 1906, amendatory of the Interstate Commerce Act, that "the term 'com m on carrier' as used in this Act shall include ex- press companies," such companies are made subject to all the provisions of said Interstate Commerce Act and its amendments, so far as the same may be applicable, to the same extent as though they had been named in the original Act.'« § 35. Sleeping-Car Gompanies. Prior to the Hepburn amendment of June 29, 1906, to the Act to Eegulate Commerce, sleeping-car companies were not subject to the provisions of the Act nor to the jurisdiction of the Interstate Commerce Commission, but that amendment included such companies within the category of "common carrier," as provided by Section 1 of the Act. As to the jurisdiction of the Interstate Commerce Commission prior to June 29, 1906, the remarks under the section on "Express Companies," ante, are equally applicable to sleeping-car com- panies. §36. Fast Freight Lines. Where a fast freight line operates over the roads of sev- eral connecting carriers, and the earnings and expenses of the line are divided among the carriers, in agreed propor- tions, such carriers must see to it that the line's tariffs are filed with the Interstate Commerce Commission, and that its rates are made to conform to the law.''' § 37. Terminal and Belt Railroads Handling Interstate Traffic. A terminal or belt railroad, whose line is in and around a city, and entirely within one State, which receives inter- ns United States v. Wells-Fargo Express Co. (1908), 161 Fed. Rep. 606. 79 Vermont State Grange, etc., v. B. & L. Rd. Co. et al. (1887), 1 I. C. R. 500; 1 I. C. C. R. 158. § 38] INTERSTATE TRANSPOETATIO ,. 96 state freight for shipmeiit from or delivery to points on its line on through bills of lading issued by other companies on which line the shipment begins or ends, submits its road to a common control for a continuous shipment, within Sec- tion 1 of the Interstate Commerce Act, and is subject to the provisions of such Act.*" The question is asked, "Is a belt line owned by a munici- pality, which participates in interstate movements, subject to the jurisdiction of the Act and of the Commission?" Held, That it is subject to such jurisdiction.*^ In case of United States v. Illinois Terminal Bd. Co./^ the Court said: "The railroad line of the defendant here is en- tirely situated within the State of Illinois. It is not more than sixteen miles in length. It is really no more than a switching road connecting the various railways reaching Bast St. Louis and Alton, Illinois, with each other, and with various industries which have been established upon its rails. Prom the indictment and the plea thereto it appears, however, that this defendant is engaged in the transporta- tion of property moving wholly by railroad from one State to another State. It is, therefore, as much subject to the Act as though it owned and operated all the line of rail- road connecting the points in different States between which moved the commodities mentioned in the indictment." §38. Foreign Railroads. The provisions of the Act to Regulate Commerce apply to foreign, as well as domestic carriers, engaged in the trans- portation of passengers or property, for a continuous car- riage or shipment, from a place in the United States to a place in an adjacent foreign country over that portion of the haul within the United States. The common carriers engaged in such transportation are subject to the provisions 80 Interstate Stock Yards Co. v. Indpls. Union Ry. Co. et al (1900) 99 Fed. Rep. 472. 81 Rule 89, Con. Rul. Bui. No. 4 (June 29, 1908). 82 XT. S. V. Illinois Terminal R. Co. (1909), 168 Fed. Rep. 546. 97 TKANSPORTATION AND CAEEIEKS SUBJECT TO ACT. [§ 39 of the Act in respect to the printing of schedules of rates, fares, charges, for the traffic they carry, the posting and filing with the Interstate Commerce Commission of such schedules, the notices of advances and reductions, and the maintenance of the rates, fares and charges established and published and in force at the time. Such common carriers are also subject to the provisions of the Act in respect to joint tariffs or rates, fares and charges for continuous lines or routes. The carriage of freights cannot be prevented from being treated as one continuous carriage from the place of shipment to the place of destination by any means or devices intended to evade any of the provisions of the Act. The law imposes no obstructions to transportation by foreign carriers from or into the United States, but requires such carriers, in conducting their business, to conform to the same regulations that govern domestic carriers.*^ "Where a foreign railroad corporation comes into the United States to compete for traffic as against American lines, it should be content to operate upon the same terms with its American competitors.'* § 39. Bridges and Bridge Companies. Section 1 of the Act to Regulate Commerce provides that "the term 'railroad' shall include all bridges * * * used or operated in connection with any railroad, * * * whether owned or operated under a contract, agreement or lease." Bridges are declared to be included within the term "railroad" by the Act, not for the purpose of exempting them from any liability to publish and observe their rates when such bridges are operated by their owners as common carriers, but rather to make certain that, where these agen- cies are employed by railroads, the transportation service 83 Re Investigation of Acts and Doings of the Grand Trunk Railway System (18S9), 2 I. C. R. 496. 84 Re Alleged Disturbances in Passenger Rates by Canadian Pacific Railway Co. (1898), 1 I. C. R. 71. Eegulation- — 7. § 39] INTEKSTATE TEANSPOETATION. 98 rendered by them shall still be subject to the provisions of the Act to Eegulate Commerce.*^ It often happens that bridges are constructed and provided by independent companies, which leave them to railroad companies under certain conditions. The intent of Section 1 was to insure that the carriage of freight and of passengers should be subject to the Act from its inception to its conclusion, and that the jurisdiction of the government over such transportation should not be di- vested by the fact that any agency used in the transporta- tion was furnished by some party other than the common carrier itself.'" A railroad may, without doubt, provide by contract with an independent company for the construction of a bridge to be used as a part of its line. It can perhaps extend its con- tract to the operator of the bridge by its owner when con- structed, but in such case the bridge company is not a com- mon carrier. The railroad is the carrier, and answerable to the law as such. The bridge is really a part of the railroad itself, as much as though owned by it.'^ "Where a railway company, by contract with a bridge com- pany, acquires the right to use a bridge with its approaches for the engines, cars and trains of the railway company, the first section of the "Act to Regulate Commerce" regards the railway company as the owner or operator of the bridges and approaches, for the time being, as to all traffic transported by the railway company over the bridge; and as to all such traffic the railway company, and not the bridge company, must be regarded as the common carrier.** Should a bridge company, which owns and maintains a bridge connecting two States, operate regular trains over such bridge for the transportation of passengers and prop- erty for hire between such States, it would be subject to the 86 See discussion under Enterprise Transportation Co. v. Penna. Rd Co. et al. (1907), 12 I. C. C. R. 326. 88 Ibid. 87 Ibid. 88 Ky. & Ind. Bridge Co. v. L. & N. Rd. Co., 37 Fed. Rep. 567. 99 TKANSPOETATION AND CAEEIBES SUBJECT TO ACT. [§40 jurisdiction of the Interstate Commerce Commission. It be- ing a common carrier engaged in the transportation of pas- sengers and property by railroad between two States, as de- scribed by Section 1 of the Act, such bridge company would come within the purview of the Act.^** For full discussion as to when bridge companies are not subject to the provisions of the Act to Kegulate Commerce, see "Bridges and Bridge Companies," Section 55, post. § 40. Ferries and Perry Companies. It will be noted, by reference to Section 1 of the Act to Regulate Commerce, that its provisions only apply to water car- riers when they are engaged in the transportation of passen- gers or property in connection with a railroad under a com- mon control, management or arrangement for a continuous carriage or shipment. A ferry line being a water carrier, it would not be subject to the provisions of the Act, and would rest under no obligation to publish or observe its tariff rates, whether its transportation were State or interstate, until it entered into some arrangement with a rail carrier for the in- terstate transportation of passengers or of property. By that Act, however, it would become subject to the jurisdiction of the Interstate Commerce Commission.'" Section 1 of the Act, however, provides that the term " 'railroad' shall include all * * * ferries # * * used or operated in connection with any railroad, * * * whether owned or operated under a contract, agreement or lease." However, in this case, the ferry would practically become a part of the railroad, and would lose its identity as a separate common carrier. The intent of this provision was to insure that the carriage of freight and of passengers should be subject to the Act from its inception to its conclu- sion, and that the jurisdiction of the Commission over such transportation should not be divested by the fact that any 89 See note 85, supra. 90 Enterprise Transportation Co. v. Penna. Rd. Co. et al., 12 I. C. C. R. 326. § 41] INTERSTATE TRANSPORTATION. 100 agency used in the transportation was furnished by some party other than the railroad itself.^^ The city of New Tork operates a municipal ferry between St. George and the foot of Whitehall street. The Staten Island Rapid Transit Co. sells commutation tickets from Perth Amboy to the Whitehall street pier, and files a tariff of local and joint passenger fares to cover such transporta- tion. Upon inquiry from the commissioner of docks the Com- mission held, That the municipality must join in the tariffs.^^ See "Ferries and Ferry Companies," Section 56, post. See, also, "Inland Water Carriers," Section 43, post. § 41. Pipe Lines. Section 1 of the Act to Regulate Commerce (as amended June 29, 1906) subjects the following common carriers by pipe line'^ to its provisions. Any corporation or any person or persons engaged in the transportation of oil or other commodity, except water, and except natural and artificial gas: Who shall be con- sidered and held to be common car- • riers within the meaning and pur- pose of the Act to Regulate Com- merce. (a) By pipe lines. (b) Partly by pipe lines and partly by railroad. (c) Partly by pipe lines and partly by water. As follows: From one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the 91 Enterprise Transportation Co. v. Penna. Rd. Co. et al., 12 I. C. C. R. 326. 92 Rule 162, Con. Rul. Bui. Np. 4 (April 12, 1909). 93 A pipe line is a connected series of pipes for the transportation of oil, gas, or water. (Bouvier's Law Bict.) A line of pipes running upon or in the earth carrying with it the right to the use of the soil in which it is placed. (Dietz v. Mission Transfer Co., 95 Cal. 92, 30 Pac. 380.) A pipe line company for conveying oils is a common carrier bound to receive and transport for all persons alike, all goods intrusted to its care, and is not in any sense, or at any time, an agent for the person committing oil to its care. (Giffin v. South West Penn. Pipe Lines, 172 Pa. 580, 33 Atl. 578; see also Columbia Conduit Co. v. Com., 90 Pa. 307.) !yi4 ; ;' 101 TEANSPOETATION AND CAEKIEES SUBJECT TO AOTi [§42 United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States to an adjacent foreign coun- try, or from any place in the United States, through a foreign country, to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country, and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country.'* § 42. Private Car Companies. The constitutional power of Congress to regulate commerce among the several States includes the power to regulate freight rates by requiring that they shall be uniform to all shippers, and, in construing statutes enacted to that end, freight rates should be construed to mean the net cost to the shipper of the transportation of his property, and such regu- lation may lawfully apply, not only to common .carriers, but to all persons and corporations occupying such relations to transportation that the conduct of their business may operate to impair uniformity of rates. A private car company which delivers its ears to railroad companies to be furnished indiscriminately for the use of shippers, receiving pay for such use from the railroad com- panies on a mileage basis, is within the provisions of Section 1 of the Elkins Act, making it unlawful for any person "or corporation to offer, grant, give, or solicit, or accept, or re- ceive any rebate, concession, discrimination in receipt of the transportation of any property in interstate or foreign com- merce by any common carrier, * * * whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariff published and filed by such carriers, whereby any other advantage is given or discrimination is practiced," and the giving by such a car Si See note 2, supra. § 43] INTERSTATE TRANSPORTATION. 102 company of any rebate or allowance to a shipper using its ears, whereby he secures the transportation of his property at a less rate than that named in the published tariff of the carrier for transportation of such property in its own cars, although from its own funds, and without the connivance or knowledge of the carrier, is a violation of the statutes. Such a car company is, therefore, subject to the jurisdiction of the Interstate Commerce Commission, charged with the duty of enforcing the statute, and having the power to inquire into the operations of any agency of transportation which may so conduct its business as to destroy uniformity of rates.'^ Section 1 of the Act to Regulate Commerce (as amended) states that "the term 'transportation' shall include cars and other vehicles, and all instrumentalities and facilities of ship- ment or carriage, irrespective of ownership or of any con- tract, express or implied, for use thereof, and all services in connection with the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported.'"" § 43. Inland Water Carriers. Section 1 of the Act to Regulate Commerce provides that the provisions of the Act shall apply "to any common carrier or carriers engaged in the transportation of passengers or property * « * partly by railroad and partly by water, when both are used under a common control, management or arrangement for a continuous carriage or shipment from one State or Territory of the United States, or the District of Co- lumbia, to any other State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another in the same Territory, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transporta- tion in like manner of property shipped from any place in 95 1. C. C. V. Reichman, 145 Fed. Rep. 235. 98 See note 2, supra. 103 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 43 the United States to a foreign country, and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country." Under the plain term of the Act, its provisions do not in- clude or apply to water craft unless in connection with a rail- road "under a common control, management or arrangement for a continuous carriage or shipment," as provided in Sec- tion 1 thereof.^^ When a carrier by water unites with one or more other car- riers by rail in making a rate for interstate or foreign ship- ments, and issues a through bill of lading therefor, it is sub- ject to the Interstate Commerce Act. An express agreement for the through rate is not required, but the successive re- ceipt and forwarding in the ordinary course of business by two or more carriers under through bills of lading, or any arrangement for a continuous carriage, constitutes assent to such common arrangement, and makes the water carrier a party to the contract within the meaning of the Act.^^ By reference to Section 1 of the Act, as quoted above, it will be seen that it embraces carriers "engaged in the trans- portation of passengers or property * * * partly by rail- road and partly by water when both are used under a com- mon control, management or arrangement for a continuous carriage or shipment," in interstate or international com- merce. It does not embrace the carriers wholly by water, though they may also be engaged in like commerce, and as such be rivals of the carriers which it undertakes to control. Thus, the steamers, boats and other water craft plying on the Great Lakes, rivers, canals, in the harbors and on other in- land bodies of water of the United States, when operated in- dependent of any railroad and not engaged in the transpor- 9TGulf C. & S. F. Ry. Co. v. Texas (1907), 204 U. S. 403; 51 L. ed. 540, 27 Sup. Ct. Rep. 360, affirming 97 Texas, 274, 78 S. W. 495, citing Coe v. Errol, 116 U. S. 517; 29 L. ed. 715; 6 Sup. Ct. Rep. 475. 98 United States v. Wood et al. (1906), 145 Fed. Rep. 405; see also R R. Com. V. S. F. & W. R. Co., 5 I. C. C. R. 13; 3 I. C. R. 414. § 43] INTERSTATE TRANSPORTATION. 104 tation of passengers or property in connection with any rail- road under a common control, management or arrangement for a continuous carriage or shipment, are not subject to the provisions of the Act to Regulate Commerce or to the juris- diction of the Interstate Commerce Commission. For exam- ple: The lake carrier which transports freight from Duluth, Minn., to Chicago, 111., on the Great Lakes, or the river car- rier from Memphis, Tenn., to New Orleans, La., is not amen- able to the Act. Indeed, it may be said that the primary purpose of the law, judging from the reports and debates of Congress prior to and succeeding the enactment of the Act of 1887, was to regulate rail carriers; but for the purpose of successful regulation of these it was found necessary that water car- riers operating in connection with rail carriers should be made subject to the same regulation power. For the omission of Congress to include independent water craft within the Act, many reasons may be suggested, but perhaps the most influential were that the evils of corporate management had not been so obvious in the case of carriers by water as in that of carriers by land, and, moreover, the rates of transportation by water were so low that they were seldom complained of as a grievance, even when they were unequal and unjustly discriminating. Summarizing the above, the cases in which the Interstate Commerce Commission has jurisdiction over inland water carriers are as follows : When operated in connection with a railroad under a common control, management, or arrangement for a contin- uous carriage or shipment I c (a) From one State or T^jfritory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia. (b) From one place in a Territory to another place in the same Territory. (c) From any place in the United States to an adjacent foreign country. 105 TEANSPOETATION AND CAKEIEKS SUBJECT XO ACT. [§ 44 (d) From any place in the United States through a for- eign country to any other place in the United States. (e) From any place in the United States to a foreign country and carried from such place to a port of transship- ment. (f) From a foreign country to any place in the United States and carried to such place from a port of entry, either in the United States or an adjacent foreign country. Carriers of interstate commerce by water are subject to the Act to Regulate Commerce only in respect to the traffic transported under a common control, management, or ar- rangement with the rail carriers, and in respect of traffic not so transported they are exempt from its provisions. ^^ For further explanation as to when inland water carriers are and are not subject to the jurisdiction of the Interstate Commerce Commission and to the provisions of the Act to Regulate Commerce, see "Water Carriers," Section 53, post. §44. Ocean Carriers. The Act to Regulate Commerce provides in Section 1 thereof, that its provisions shall apply "to any common carrier or carriers engaged in the transportation of passen- gers or property * * * partly by railroad and partly by water when both are used under a common control, man- agement, or arrangement for a continuous carriage or ship- ment, from one State or Territory of the United States, or the District or Columbia, or to any other State or Terri- tory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States to an ad- jacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port 99 In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. § 44] INTEESTATE TEANSPOETATION. 106 of transshipment, or shipped from a foreign country to any- place in the United States and carried to such place from a port of entry, either in the United States or an adjacent foreign country." From a careful reading of the above section of the statute, inartificially drawn as it is, the legislative intention is educed to bestow upon the Interstate Commerce Commission juris- diction over such ocean carriers only as may form a con- necting link in the through transportation of passengers or property, internal to the United States, to an adjacent foreign country, or to and from ports of transshipment and entry either in the United States or an adjacent foreign country on foreign commerce, when operated in connection with a railroad under a common control, management, or arrangement for a continuous carriage or shipment. The word "adjacent," as used in the Act to modify the words "foreign country," would seem to mean adjacent in the sense of the possibility of substantial continuity of rails.^"" The jurisdiction of the Interstate Commerce Commission is not to be determined by anything other than the language of Section 1 of the Act, and in this section is found a clear distinction drawn between interstate commerce and foreign commerce to a country not adjacent to the United States; and this distinction saves such foreign commerce from the effect of that section as to continuous carriage beyond the American seaboard. Thus, the Commission has no jurisdiction over the ocean carriers transporting shipments from the United States to a foreign country not adjacent to the United States. By the plain terms of the Act, the Com m ission in its control over foreign commerce to and from a country not adjacent to the United States, is limited to the regulation of such traffic from the point of origin to the port of transshipment, or from the port of entry to the point of destination. An inland movement of either export or import traffic is a condition precedent to the looLykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. 107 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 44 attaching of the jurisdiction of the Commission, and then only over such inland portion of the haul. The Act pro- vides no machinery by which its provisions can be enforced as to oceanic steamship lines. ^"^ The port-to-port business of water carriers is not within the purview of the statute. It controls all-rail and part-rail and part- water transportation, which is the subject of "com- mon arrangement" and leaves all other water carriage open to free competition.^"^ The Act to Eegulate Commerce does not, therefore, apply to an ocean carrier transporting goods from one State or Territory of the United States, or the District of Columbia, to another State or Territory of the United States, or the District of Columbia, unless used in connection with a rail line "under common control, management, or arrangement for continuous carriage or shipment. ' ' For example : An ocean steamer plying between Portland, Ore., and San Fran- cisco, Cal., or Seattle and San Francisco, or one engaged in hauling freight to New York City from New Orleans, which originates at that point is not subject to the juris- diction of the Commission. Summarizing the above, the cases in which the Interstate Commerce Commission has jurisdiction over ocean carriers are as follows: When operated in connection with a railroad under a common control, management, or arrangement for a contin- uous carriage or shipment: (a) From a port of the United States to another port of the United States when engaged in the handling of prop- erty from one State or Territory of the United States, or the District of Columbia to another State or Territory of the United States, or the District of Columbia. (b) "When engaged in handling property from any place in the United States to an adjacent foreign country. 101 Cosmopolitan Shipping Co. v. Hamburg- American Packet Co. et al. (1908), 13 I. C. C. R. 207; see also Kemble v. B. & A. Rd. Co. et al. (1899), 8 I. C. C. R. 110. 102 In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. § 45] INTERSTATE TEANSPOETATION. 108 (e) When engaged in the handling of property from any- place in the United States through a foreign country to any other place in the United States. (d) To a port of transshipment when engaged in the handling of property from any place in the' United States to a foreign country. (e) From a port of entry either in the United States or an adjacent foreign country when engaged in the handling of property from a foreign country to any place in the United States. Carriers of interstate commerce by water are subject to the Act to Regulate Commerce only in respect to the traffic transported under a common control, management, or ar- rangement with the rail carriers, and in respect of traffic not so transported they are exempt from its provisions.^"^ For further explanation as to when ocean water carriers are and are not subject to the jurisdiction of the Interstate Commerce Commission and to the provisions, of the Act to Regulate Commerce, see "Water Carrier" Section 53, post. § 45. Intraterritorial Common Carriers. Section 1 of the Act to Regulate Commerce provides that it shall apply to "any common carrier or carriers of pas- sengers or property, wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous car- riage or shipment * * * from one place in a Territory to any other place in the same Territory." The Interstate Commerce Act applies to shipments to and from points in an unorganized Territory.^"* It will be noted, therefore, that the Interstate Commerce Commission has jurisdiction over common carriers, as de- scribed by the Act, which operate wholly within the bounds of a Territory. 103 In the matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. 104 M. K. & T. Ry. Co. v. Bowles (1897), 1 Ind. Terr. 250; 30 S. W. 899. 109 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§§ 46, 47 For full explanation as to the source of the power of Congress to control such common carriers see ante. Section 29. §46. Street Railways within the District of Columbia. Electric street railways operating within the District of Columbia are subject to the jurisdiction of the Interstate Commerce Commission.^"^ See "Transportation within District of Columbia," Section 30, for explanation as to source of the power of Congress to control such common carriers. § 47. Receivers of Common Carriers. The text of the statute^"" recognizes two classes of common carriers, namely, natural persons and corporations;^" it seems to contemplate receivers of railroads as persons in charge of the 'affairs of such roads, without reference to their official relation to the court appointing them.^"^ By Section 9 of the Act suits upon claims for damages by a common carrier may be brought "in any District or Cir- cuit Court of the United States of aompetent jurisdiction, * * * and such court may compel the receivers, trustees, or agent of the corporation or company defendant in such suit to attend, appear and testify in such case, and compel the production of the books and papers of such corporation or company party to the suit;" Section 10 makes receivers of property amenable to the penal provisions of the Act; Section 16 subordinates their management to the control of the Commission in the issuance of any order which may be declared lawful by the courts"" and relates to the penalty for a common carrier or receiver of a common carrier failing or neglecting to obey the orders of the Commission; Section 105 District of Columbia Street Railways Act, approved May 23, 1908. See Appendix for copy of Act. 106 Act to Regulate Commerce. See Appendix for copy of Act. 107 Eighth Annual Report of I. C. C. (1895). 108 Beach on Receivers. 109 Eighth Annual Report of I. C. C. (1895). § 47] INTERSTATE TKANSPOETATION. 110 20 which provides that the Commission may prescribe the form of accounts and examine the same by special examiners, et cetera, states that the provision shall apply to receivers of common carriers, and also provides the penalty for com- mon carriers or receivers of common carrier failing or re- fusing to keep the accounts, et cetera, as prescribed by the Commission or to submit same to inspection. Then again, the Elkins Act in Section 1 thereof prescribes the penalty for common carriers and receivers of common carriers con- victed of giving a rebate, concession, et cetera; and the Ar- bitration Act in Section 1 thereof,^^" enumerates the rights of employes upon railroads that are in the possession and control of receivers appointed by Federal Courts to be heard in such courts upon questions affecting the terms and con- ditions of their employment; and Section 10 thereof pro- hibits receivers of railroads from making unjust requirements as conditions to employment and prescribes the penalty for infraction of the law. The Removal of Causes Act of March 3, 1887, in Section 3 thereof, provides, "That the receiver or manager of any property appointed by any court of the United States may be sued with respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such re- ceiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed so far as the same shall be necessary to the ends of justice.""^ The sections of the Act to Regulate Commerce enumerated above, taken in connection with this section of the Removal of Causes Act, go far toward impairing those functions of a receive;- which have grown out of the principle that he is an officer of the court appointing him, subject only to its authority and discipline by subjecting him to other juris- 110 Arbitration Act. See Appendix for copy of Act. 111 Act, March 3, 1887, C. 373, Section 3 (24 Statutes at Large. 554), August 13, 1888, C. 886, Section 3 (25 Statutes at Large, 436). Ill TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 47 dictioiis in many of his most important duties and responsi- bilities."^ The object of the Act to Kegulate Commerce is to bring, within the operation of salutary and wholesome rules the operation of railroads engaged in commerce between the States. It purports to be controlling to all common carriers thus engaged, and that term, as will be seen from an ex- amination of the authorities, includes the receivers of rail- roads and controls them to the extent that it would control the corporation if it were managing its own affairs, sub- ject to the limitation that if the proceedings before the Commission or before the courts in their revisory action upon the findings of the Commission should attempt to give the aggrieved party money damages, it would be necessary to resort to the court appointing the receiver in order to obtain satisfaction of the judgment. The main object of complaints before the Commission is the regulation or read- justment of rates alleged to be illegal because unjustly dis- criminative or unreasonable in themselves, and reparation for injury sustained by reason of such illegality. The principal purpose of a receivership is to preserve property in controversy pendente lite, and' this devolves upon the court appointing the receiver the duty of protect- ing the possession of the property in his hands. The pro- ceedings before the Commission and the orders of that body do not interfere with this rule. The orders of the Com- mission for reparation or other relief, if not voluntarily- obeyed by the carrier, can only be enforced by suit in the proper court. The Commission renders no judgment upon which execution can issue and be levied upon property in the hands of a receiver."^ The question whether property of a carrier in the possession of the receiver can be made subject to an order of reparation issued by the Commission would arise on proceedings in the courts for the enforce- 112 Beach on Receivers. 113 Board of Trade of Troy, Ala., v. Ala. Mid. Ry. Co. et al., 6 I. C. R. 1. § 47] INTERSTATE TRANSPORTATION. 112 ment of such order."* The Commission does not assess costs; nor does it allow attorneys' fees; nor does its order for the payment of money have the effect of an order, decree, or judgment of a court; nor are such orders enforcible by process; nor do they become liens upon the property of the defendant."^ It is very clear from all the authorities, as well as from the reason of the matter, that the attitude of a receiver to the Interstate Commerce Law is precisely that of the atti- tude of corporations whose affairs have not been taken possession of by the court. The business they perform is public. It is, as has been stated and shown so many times, the administration of public functions. The managers of railroads whether they are owners or receivers are putting in operation a function of the government and the mere fact of sequestration of the property and the appointment of receivers for the benefit of creditors does not exonerate a management from performing the .public duty according to the rules and regulations which the statutes may pre- scribe for such business. ^^° In the case of Ex 'parte Tyler, before the Supreme Court of the United States which involved the obligations of re- ceivers of railroad property to pay taxes assessed by the States in which the property is located. Chief Justice Puller said: "No rule is better settled than that when a court has appointed a receiver, his possession is the possession of the court, for the benefit of the parties to the suit and all concerned, and cannot be disturbed without the leave of the court; and, that if any person without leave, inten- tionally interferes with such possession, he necessarily com- mits a contempt of court, and is liable to punishment there- for."' Ordinarily the court will not allow its receiver to ii^Loud V. S. C. R. Co., 4 I. C. R. 205 (1892). 115 Washer Grain Co. v. Mo. Pac. Ry. Co., 15 I. C. C. R. 147. 118 Eighth Annual Report of I. C. C. (1895). iiTWiswall V. Sampson, 14 How. (U. S.) 52, 14 L. ed. 322; Taylor V. Carryl, 20 How. (U. S.) 583, 15 L. ed. 1028; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Krippendorf v. Hyde, 110 U. S. 276; 28 L. ed. 113 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 47 be sued touching the property in his charge, nor for any malfeasance of the parties, or others, without its consent; and while the third section of the Act of Congress of March 3, 1887,^^' now permits a receiver to be sued without leave, it also provides that 'such suit shall be suit to the general equity jurisdiction of the court in which such re- ceiver or manager was appointed, so far as the same shall be necessary to the ends of justice.' Neither that nor the second section, which provides that the receiver shall man- age the property 'according to the valid laws of the State in which such property shall be situated,' restricts the power of 'the Circuit Court to preserve property in custodia legis from external attack. "^^' A receiver of a railroad company appointed by a court of the United States may be sued, without the permission of such court, under the Act of March 3, 1887, for a cause of action arising from the acts of his predecessor in the same office. ^^" Actions against the receiver are in law actions against the receivership, or the funds in the hands of the receiver, 145, 4 Sup. Ct. 27; Barton v. Barbour, 104 U. S. 126; 26 L. ed. 672; Gumbel v. Pitkin, 124 U. S. 131; 31 L. ed. 374, 8 Sup. Ct. 379. 118 Act of Congress of March 3, 1887, 24 Statutes at Large, 552, C. 373. 119 Ex Parte Tyler, 149 U. S. 164; 37 L. ed. 689 (1893), 13 Sup. Ct. 785. Section 2 of Act of March 3, 1887, C. 373, reads: "That when- ever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property accord- ing to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do it in possession thereof. Any receiver or manager who shall wilfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine of not exceeding three thousand dollars, or by imprisonment not exceeding one year, or both said punishments, in the discretion of the court." isoMcNulta v. Lochridge, Adm., 141 U. S. 327-332; 35 L. ed. 796, 12 Sup. Ct. 11 (1891), affirming decision of Supreme Court of Illinois, 137 111. 270, 27 N. E. 452; T. & P. v. Cox, 145 U. S. 593; 36 L, ed. 593, 12 Sup. Ct. 905. Eegulatio n — 8 . § 47] INTERSTATE TKANSPOETATION. 114 and his contracts, misfeasances, negligence and liabilities are official and not personal, and judgments against him as receiver are payable only from the funds in his hands. ^^^ In an action in which service of process on a station agent of a railroad in the possession of a receiver was de- clared to be sufficient, Thayer, J., said: "The- third section of the Judicial Act of March 3, 1887, authorizing suit to be brought against receivers of railroads without special Ifeave of the court by which they were appointed is in- tended, as we think, to place the receiver on the same plane with railway companies, both as respects their liability to be sued for acts done while operating the railroad, and as respects the mode of obtaining service. "^^^ When a court which has appointed receivers for a railroad company is called upon to enforce an order made before such appointment, by the Interstate Commerce Commission, it cannot treat the petition merely as an appeal to the court to regulate the conduct of its receivers in the receivership case, but must apply to them the same rules and principles which would be applied if the railroad was being operated and managed by the officers and agents of the corporation itself. The receivers have the same right to question the validity of the order made by the Commission as would the railroad company.^^^ A receiver not being bound to continue contracts made before his appointment, is not criminally liable under Sec- tion of the Interstate Commerce Act, for the violation of a joint tariff previously established by the railroad company of which he is receiver and another company, and which he has not ratified, adopted, or recognized in any way.^^* The fact of a receivership for a defendant carrier subse- quent to complaint should not interfere with the progress 121 Ibid. 122 Eddy V. LaPayette, 49 Fed. Rep. 807, following Central Trust Co. V. St. L. A. & F. Ry. 40 Fed. Rep. 420; affirmed in 163 U. S. 456; 41 L. ed. 225, 16 Sup. Ct. Rep. 1082. 123 Farmers' Loan & Trust Co. v. Nor. Pac. Ry. Co., 83 Fed. Rep. 249. 12* United States v. De Coursey, 82 Fed. Rep. 302. 115 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 48 of a proceeding brought merely for the purpose of a rail- way regulation.^^' Receivers of railroad companies are common carriers sub- ject to the prohibition and requirement of, and to regula- tion under, the Act to Regulate Commerce.^^" Prior leave of a court which has appointed a receiver of a railroad company is not necessary to entitle a shipper to complain against such receiver in a proceeding before the Commission, nor is such leave necessary to give the Commission jurisdiction in such a proceeding.^^' The Rules of Practice before the Commission provide that "when the line of a carrier is operated by a receiver or trustee, both the carrier and its receiver or trustee should be made defendants in cases involving transportation over such lines. "^^* §48. Successors to Common Carriers and Purchasers Pendente Lite. When an order against unjust discrimination made by the Interstate Commerce Commission is binding on a railroad company, it is binding on the successor of such company.. The court in delivering its opinion said: "It would indeed be lamentable if a lawful order against unjust discrimina- tion by a railroad company, made by the Interstate Com- merce Commission after a protracted investigation, could Tie nullified by the subsequent reorganization of the com- pany, or transfer of its railroad and franchises to another corporation. It is a settled principle that the purchaser of property in litigation, pendente lite, is bound by the judg- ment or decree in the suit."^^" 125 Railroad Commission of Georgia v. Clyde S. S. Co. et al. (1892), 4 I. C. R. 120; 5 I. C. C. R. 324. 126 Independent Ref. Association v. W. N. Y. & P. R. Co. et al., 6 I. C. R. (1896). 127 May v. McNeill, Receiver (1896), 6 I. C. R. 520. 128 Article 2, Rules of Practice before the Interstate Commerce Com- -mission. 129 I. C. C. V. W. N. Y. & P. R. Co. et al. (1897), 82 Fed Rep. 192. ' 49] INTERSTATE TRANSPORTATION. 116 §49. Nature of Organizaticm of the Carrier Immaterial to the Attaching of Jurisdiction of Commission. 11 A. In General. The Act to Regulate Commerce applies to common carriers and provides no distinction between those that are operated by individual properties, partnerships, joint stock companies, or corporations.^^" H B. Federal Charter does not precltjde Jurisdiction. A railroad chartered under Federal statute is nevertheless subject to the jurisdiction, as in the case of the Northern Pacific R. Co., Congress having reserved the right of alter- ation and amendment, which was exercised by the Act to Regulate Commerce. ^^^ 130 American Bankers' Association v. American Express Company et al., 15 I. C. C. R. 15. 131 Rawortli v. Northern Pacific R. Co. et al. (1892), 5 I. C. R. 234; 2 I. C. R. 614; 3 I. C. R. 857; affirmed in Merchants' Union of Spokane Falls V. Northern Pacific R. Co. et al. (1892), 5 I. C. C. R. 478; 2 I. C. R. 452; 4 I. C. R. 183. CHAPTER V. TRANSPORTATION AND COMMON CARRIERS NOT SUBJECT TO THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. Section 50. Intrastate Transportation. 51. Foreign Commerce. 52. State Common Carriers. ^« „x „ ( Inland 53. Water Carriers j ^^^^^ 54. Transportation by Team, Transfer, Express and Omnibus Wagon, Stage-Coach, etc. 55. Bridges and Bridge Companies. 56. Ferries and Ferry Companies. 57. Switching Companies. 58. Foreign Railroads. § 50. Intrastate Transportation. T[ A. In General. The Federal Constitution provides that "The Congress shall have power * * * to regulate commerce with foreign na- tions, and among the several States, and with the Indian tribes."^ It will be seen that the above constitutional provision ex- cludes from Federal regulation and control that commerce wholly within a State. In enacting the Interstate Commerce Act Congress had in view and intended to make provision for commerce between States and Territories, commerce going to and coming from foreign countries and the whole field of commerce, except that wholly within a State.^ "When Con- - Federal Constitution, Article 1, Section 8, Clause 3. 2 T. & P. Ry. Co. v. I. C. C, 162 U. S. .197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940 (1896). 117 § 50] INTERSTATE TRANSPORTATION. 118 gress passed the Act to Regulate Commerce it probably took cognizance of its inability to control intrastate commerce; that is, commerce wholly within one State; and in order to obviate any confusion as to the exact jurisdiction of the In- terstate Commerce Commission over such commerce it in- cluded the following proviso within Section 1 of the Act: "That the provisions of this Act shall not apply to the trans- portation of passengers or property, or to the receiving, de- livering, storage or handling of property wholly within one State and not shipped to or from a foreign country from or to any State or Territory."^ This proviso excludes from na- tional regulation the purely internal commerce of a State — that which is confined within its limits, which originates and ends in the same State.* The Act does not include the carriage or handling of prop- erty, by rail or otherwise, when such carriage is wholly with- in a State, unless the same is directly shipped to or from a foreign country from or to such State.^ An interstate shipment, on reaching the point specified in the original contract of transportation, ceases to be an inter- state shipment, and its further transportation to another point within the same State, on the order of the consignee, is controlled by the law of the State, and not by the Inter- state Commerce Act." The Commission has no control over traffic moving wholly within a single State, nor has it any power to award repara- tion for discriminations affecting such shipments.'' It will be seen, therefore, that the Interstate Commerce Commission has absolutely no jurisdiction over shipments 3 Act to Regulate Commerce, Section 1. See Appendix. iMattlngly v. Penna. Co., 2 I. C. R. 806; 3 I. C. C. R. 592. 5 Ex Parte Koehler (1887), 30 Fed. Rep. 867. 6 Gulf, C. & S. F. Ry. Co. v. Texas (1907), 204 tJ. S. 403; 51 L. ed. 540, 27 Sup. Ct. Rep. 360, affirming 97 Texas, 274, 78 S. W. 495; so-called "Goldwaith Case." T Gallogly & Firestine v. C. H. & D. Ry. Co. (1905), 11 I. C. C. R. 1; see also discussion under Hulbert v. Penna. R. Co., 2 I. C. R. 81; N. J. Fruit Ex. V. C. R. R. of N. J., 2 I. C. R. 84; Capehart et al. v. L. & N. R. Co. et al., 3 I. C. R. 278. 119 TEANSPORTATION AND CAEEIEES NOT SUBJECT TO ACT. [§ 50 that originate at a .point in one State and which are destined to a point in the same State, where the movement is entirely within that State. For example : A shipment of machinery from Peoria, 111., to Chicago, 111., is not subject to the pro- visions of the Act to Regulate Commerce. Another ex- ample is where complainant shipped a carload of cement plaster from Acme, Texas, to Bast St. Louis, 111., the rate in eifect being 18 cents per 100 pounds between those points and 23 cents per 100 pounds from Acme, Texas, to Braidwood, 111. When the car reached East St. Louis it was ordered by the complainant to its warehouse and the 18- cent rate was paid. Complainant removed one-half of the carload and rebilled the car to Braidwood, 111. The carrier's tariff did not provide for reconsignment at East St. Louis. The local rate of 9 cents per 100 pounds was assessed from East St. Louis to Braidwood. Complainant insisted that the balance of the through rate of 5 cents per 100 pounds should have been collected, and filed complaint before the Commis- sion on that basis. Held, That the shipment from East St. Louis to Braidwood was a State movement, and the carrier had no right to allow it to go forward at the balance of the through rate.* And this is true as to intrastate traffic, even though the same is handled by an interstate common carrier. T[ B. Traffic teanspoeted between points in the Same State which passes through an Adjoining State in EEACHiNG Destination. For full explanation, see ante, "Interstate Transportation," Section 28, Paragraph E. If C. When a Teheitoey has been admitted into the Union AS A State. When a Territory is admitted into the Union as a State, upon the same footing as all the other States, the territorial government and courts cease to exist, and matters of national cognizance remain within the power and jurisdiction of the 8 Acme Cement Plaster Co. y. C. & A. Rd. Co. et al. (1909), 17 I. C. C. R. 220, following Gulf, C. & S. F. Ry. Co. v. Texas, supra. § 50] INTERSTATE TEANSPOETATION. ISO nation^ but other matters come under the power and juris- diction of the State." As stated under "Intraterritorial Transportation" Section 29, ante, the Interstate Commerce Commission has absolute jurisdiction over commerce from one place in a Territory to another place in the same Territory, but only so long as the Territory is unorganized. Ipso facto, when the Territory is admitted into the Union as a State the Commission loses its jurisdiction, and such commerce is then subject to the laws of the new State. Reparation asked on account of alleged unreasonable freight rates charged on shipments of cross-ties moving be- tween April 25 and August 12, 1907, from Barnett to Mc- Alester, Ind. Ter. Subsequent to the movement of these ship- ments and the filing of the petition this Territory was ad- mitted as a State into the Union, and the points of origin and destination are now located in the State of Oklahoma. Held, By the Act of Congress admitting Oklahoma to statehood the intraterritorial jurisdiction of the Commission ceased to ap- ply to the territory now embraced in that State. The Com- mission, therefore, could make no lawful order in a ease over which it has no jurisdiction under the provisions of the Act to Regulate Commerce. Complaint was dismissed for want .of jurisdiction.^" The provisions of the Act to Regulate Com- 9 S. Koenlgsberger v. Riclimond Silver Mining Co., 158 U. S. 48; 39 L. ed. 892, 15 Sup. Ct. Rep. 751; see also McNulty v. Batty et al., lo' How. (TJ. S.) 72, 13 L. ed. 333; Freeborn et al. v. Smith et al., 2 Wall. (U. S.) 173, 17 L. ed. 922. 10 Hussey v. C. R. I. & P. Ry., 13 I. C. C. R. 366, in support of which the following cases were cited: McNulty V. Batty, 10 How. (U. S.) 72, 13 L. ed. 333; Ex Parte Mc- Cardle, 7 Wall. (U. S.) 514, 19 L. ed. 265; Norris v. Crocker, 13 How. (TJ. S.) 429, 14 L. ed.. 210; Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 48; 39 L. ed. 892, 15 Sup. Ct. Rep. 751; United States V. Boisdore, 8 How. (U. S.) 121, 12 L. ed. 1012; Yeaton v. United States, 5 Cranch, (U. S.) 281, 3 L. ed. 101; South Carolina v. Gaillard, 101 U. S. 437, 25 L. ed. 938; B, & O. R. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231; Freeborn v. Smith, 2 Wall. (U. S.) 173, 17 L. ed. 922; Merchants' Ins. Co. v. Ritchie, 5 Wall. (U. S.) 541, 18 L. ed. 540; Moore v. United States, 29 C. C. A. 269, 56 U. S. App. 471, 85 Fed. Rep. 465. 121 TEANSPORTATION AND CAEKIBKS NOT SUBJECT TO ACT. [§ 51 meree applying to carriers transporting property "from one place in a Territory to another place in the same Territory,"" so far as it related to the Territory of Oklahoma, expired by its own force on November 16, 1907, when Oklahoma was ad- mitted as a State. ^^ § 51. Foreign Commerce. By the plain term of the Act the Commission, in its con- trol over foreign commerce to and from a country not adja- cent to the United States, is limited to the regulation of such traffic from the point of origin to the port of transshipment, or from the port of entry to the point of destination. An in- land movement of either export or import traffic is a condi-, tion precedent to the attaching of the jurisdiction of the Commission, and then only over such inland portion of the haul. The Interstate Commerce Commission has no control over a shipment to or from a foreign country, not adjacent to the United States, after it has passed beyond the American seaboard on export traffic, and before it reaches the American seaboard on a movement of import traffic.^' For example : On a shipment from Pittsburg, Pa., to Liverpool, England, which travels via the port of New York, the jurisdiction of the Commission ceases when the shipment clears from the port. And, of course, the Commission has no jurisdiction over foreign traffic which originates at a seaport and where no inland haul is involved. For further explanation, see "Ocean Carriers," Section -W, ante. As to the control of the Commission over traffic destined to the adjacent foreign countries, such as Canada and Mex- ico, see "Foreign Railroads," Section S8, ante. The above position does not conclude the Commission against an examination into the relation which exists between 11 Act to Reflate Commerce, Section 1, Appendix. 12 Chandler v. F. S. W. R., 13 I. C. C. R. 473. 13 Cosmopolitan Shipping Co. v. Hamburg- American Packet Co. et al. (1908), 13 I. C. C. R. 267; Kemble v. B. & A. Rd. Co. et al. (1899), 8 I. C. C. R. 110. §§ 53, 53] INTERSTATE TEANSPOETATION. 123 the rail carriers of the United States and the water carriers, and condemnation of such arrangement, if the rail carriers to the seaboard are by any means whatsoever disobeying any provision of the Act or omitting to comply with its require- ments.^* § 52. State Common Carriers. As stated under "Intrastate Transportation," Section 50, su- pra, that commerce wholly within a State is not subject to the jurisdiction of the Interstate Commerce Commission, nei- ther is a common carrier whose line lies wholly within a State subject to the provisions of the Act to Eegulate Com- merce, unless, of course, they are engaged in the handling of interstate commerce. Although the provisions in the first section of the Act excludes from regulation the purely inter- nal commerce of a State, yet, when a State carrier engages in interstate commerce it becomes a national instrumentality for the purpose of such commerce, and is subject to the regula- tions prescribed by the national authority. However, one en- gaging in Interstate Commerce does not thereby submit all his business to the regulating power of Congress.^^ For full explanation, see "State Railroads Engaged in Inter- state Commerce," Section SS, ante. § 53. Water Carriers I J^la^d ( Ocean. In the proceeding styled "In the Matter of Jurisdiction Over Water Carriers,"^* the Commission held that carriers of interstate commerce by water are subject to the Act to Regu- late Commerce only in respect of traffic transported under a common control, management or arrangement with a rail carrier, and in respect of traffic not so transported they are exempt from its provisions. The Commission's consideration in this proceeding is here quoted : 14 Ibid. 15 Employers' Liability Cases (1908), 207 XJ. S. 463, 28 Sup. Ct. 141. i« In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. 123 TRANSPORTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 53 "The question at issue in this case may be stated as fol- lows: Does the fact that a water carrier joins with a rail carrier, in forming a through or establishing a joint rate for the transportation of certain trafiBc, subject all the interstate traffic of such water carriers to the requirements of the Act and to the jurisdiction of the Commission, or, stated in a narrower form, does such action on the part of a water car- rier subject its port-to-port traffic to all the provisions of the Act, including the posting and observing of tariffs and simi- lar requirements? "The question arises because of the somewhat ambiguous language used in Section 1 of the Act, reading as follows: "That tile provisions of this Act shall apply * * * to any com- mon carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water, when both are used under a common control, management or arrange- ment for a continuous carriage or shipment). "This provision of the law has not been changed since the original enactment of 1887, except that the parentheses, as in- dicated in the foregoing quotation, were added by the amend- ment of 1906. "Looking to the history of the enactment, and without at- tempting to quote the pertinent portions of the congressional debates and committee reports preceding the enactment of the law of 1887, there can be no doubt that the main pur- pose of the Act was to regulate transportation by railroad; that the regulation of water lines was merely incidental and collateral, and was included in order that the regulation of railroads might be effective, and not virtually nullified by arrangements between railroads and water lines. It is not necessary to recite the reasons which induced the legislation; it is sufficient to determine the intention of the law-making body. "As a fundamental proposition, it is obvious that interstate commerce wholly by railroad is subject to the Act, and that interstate commerce wholly by water is not subject to the Act. It is equally obvious that interstate commerce, partly by railroad and partly by water, under a common control, § 53] INTERSTATE TRANSPOETATION. 124 management or arrangement for a continuous carriage or shipment, is subject to the Act. Does the fact that some of the commerce transported by a carrier is subject to the Act ipso facto render all the commerce transported by that carrier subject to the Act? The leading case in point is Cincinnati, New Orleans & Texas Pacific Railway Co. v. Interstate Com- merce Commission.^'' The substance of so much of that de- cision as relates to the present matter is stated in the syllabus as follows: "When a State railroad company whose road lies within the limits of a State enters into the carriage of foreign freight by agreeing to receive the goods by virtue of foreign through bills of lading, and to participate in through rates and charges, it thereby becomes a part of a continuous line, not made by a consolidation with the foreign companies, but by an arrangement for the continuous carriage or shipment from one State to another, and thus becomes amenable to the Federal Act with respect to such interstate commerce; and, hav- ing thus subjected itself to the control of the Interstate Commerce Com- mission, it cannot limit that control in respect to foreign traffic to certain points on its road to the exclusion of other points. "When goods shipped under a through bill of lading, or in any other way indicating a common control, management or arrangement, from a point in one State to a point in another State, are received in transit by a State common carrier, such carrier, if a railroad company, must be deemed to have subjected its road to another arrangement for a continuous carriage or shipment within the meaning of the Act to Regulate Commerce. "When analyzed, practically all this ease decided upon the point here involved is that the interstate transportation in question was subject to the Act to Regulate Commerce by reason of the fact that, having entered into a common con- trol, management, or arrangement for the through carriage of goods, a new line has been formed independent of its con- stituent elements, and such' new line cannot discriminate as between different points. In this case the court took occa- sion to say: "It may be that if, in the present case, the goods of the James & Mayer Buggy Co. had reached Atlanta, and there and then, for the first time, and independently of any existing arrangement with the railroad companies that had transported them thither, the Georgia R. R. Co. was asked to transport them, whether to Augusta or to Social IT C. N. O. & T. P. V. I. C. C, 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700. 125 TKANSPOETATION AND CAEEIBES NOT SUBJECT TO ACT. [§ 53 Circle, that company could undertake such transportation free from the control of any supervision, except that of the State of Georgia. "All we wish to be understood to hold is, that when goods shipped under a through bill of lading from a point in one State to a point in another, are received in transit by a State common carrier, under a conventional division of the charges, such carrier must be deemed to have subjected _ its road to an arrangement for a continuous carriage or shipment within the meaning of the Act to Regulate Commerce. "Traffic wholly within a State is not subject to the Act, for the reason that Congress has no authority to regulate such commerce. Traffic wholly by water is not subject to the Act, for the reason that Congress did not in that statute exercise its admitted authority over interstate transportation by water. The Commission's only duty is to execute the mandate of the Congress. "The language of the provision in question indicated its meaning. The Act applies to any common carrier or car- riers engaged in transportation partly by rail and partly by water when both are used under a common control, man- agement, or arrangement for a continuous carriage or ship- ment. The use of the word 'when' is significant, and its natural meaning seems to be that a water carrier is sub- ject to the Act 'in so far as' or 'to such extent as' it car- ries traffic under a common control, management, or ar- rangement with a railroad. It need haMly be stated that the Act does not require publication of or adherence to rates upon purely intrastate traffic. With regard, then, to the history and purpose of the enactment the language used and the rules of statutory construction, it is difficult to see how serious doubt can arise that Congress did not intend to regulate the charges exacted upon the port-to-port busi- ness of water carrier ; but, if further support of that position is necessary, it is amply found in the conditions under which port-to-port business is conducted. "If one water carrier by becoming a party to a joint rate with a railroad is thereby required to publish and adhere to its rates between ports, it could not hope to compete with a carrier which is not required to publish and maintain § 53] INTERSTATE TKANSPOKTATION. 136 its rates, and the result would be that the actual operation of the law instead of tending <" to promote and facilitate commerce, would tend rather to its injury by making un- profitable the instrumentalities provided for the carriage of such commerce. Under such a construction of the law there would exist the commercial anomaly of two water carriers between the same ports attempting to secure the transpor- tation of competitive traffic, the one bound to observe and, collect" rates which it had published thirty days in advance, the other able to make any rates which would secure the traffic; one within the law and subject to severe penalties for its violation, the other without the law and governed only by its business interests. That the Congress intended to produce such a condition — to create in a commercial sense a favored class of water carriers not subject to the Act — and penalize other water carriers for their attempt to facilitate commerce by joining in through routes with rail carriers, seems unreasonable and might be held unconstir tutional, as depriving the latter class of carriers of the equal protection of the law. "One further illustration points to the same conclusion. Under certain conditions the Commission is authorized to establish through routes and joint rates, and this provision applies where one of the carriers is a water line. Suppose that, upon proper showing, the Commission establishes a joint rail and water rate, say, from Rochester, N. Y., to the City of New York by rail and thence by water carrier to Norfolk, Va. Having established one satisfactory through- route between Rochester and Norfolk, the Commission is without authority to establish another and therefore could not by similar means make the port to port traffic of com- peting carriers from New York to Norfolk subject to the Act. The net result of the proceeding would simply be to injure and possibly destroy the business of the carrier re- quired to join in the through rate, and this would come dangerously near to taking that carrier's property without due process of law. 187 TRANSPORTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 53 "It has been suggested that if the carrier's rail-and-water shipments are subject to the Act and its port-to-port ship- ments are not, the water carrier might join in a through rate to one interior point and refuse to join in a through rate to another interior point similarly situated, and by manipulation of its port-to-port rates unjustly discriminate in favor of the point to which no through rate applied. This objection seems more apparent than real. If the car- riers make a joint rate or through route between two points, they form a new line independent of its constituent ele- ments, and that through line, under the principle announced in C. N. 0. & T. P- By. v. I. 0. C, supra, would certainly be prohibited from unjustly discriminating within the mean- ing of the statute. It does not seem difficult to remedy such a situation without requiring the water carrier to subject its port-to-port business to the requirements of the Act, for the simple reason that the new through line is prohibited from unduly preferring any community in any re- spect whatsoever. Moreover, the rail carrier, in respect of such traffic is undoubtedly subject to the Act, and if it joins in such an arrangement would become with the water carrier a joint tort feasor and subject to prosecution as such. "To hold otherwise amounts to this — that an interstate carrier by water must elect to bring its business within con- trol of the Commission or relinquish all through business, freight or passenger, however profitable to the carrier or advantageous to the public. Opposed to this we have the plainly expressed intention of the Congress to exclude water carriage of every kind from the operation of the Act and, by exception, to include it only in such cases as Congress thought necessary to eifectually control and prevent abuses by rail carriers whose business was conducted in connection with the use of water transportation. "It is further suggested, if port-to-port traffic carried by a water line which also carried rail-and-water traffic is excluded from the operation of the Act, that such rates might be allowed on port-to-port traffic to one who is also § 53] INTERSTATE TEANSPORTATIOST. 138 a shipper of rail-and-water traffic as to give that shipper an advantage over competing shippers by rail and water. To state the proposition is to refute it. The granting of preferential rates on port-to-port traffic to influence rail- and-water traffic, amounting to a rebate on the latter, would bring the transaction clearly within the prohibitions of Sec- tion 10 of the Act and Section 1 of the Elkins Law. If port-to-port traffic should be subjected to the Act because otherwise opportunity is afforded for wrong doing in respect of rail-and-water rates, it would seem similarly needful to subject intrastate traffic which in respect of interstate rates affords corresponding opportunity. The question is not as to the character of the traffic but whether by any device a favored shipper obtains transportation at less than the established rates, and it makes no difference whether the unlawful result is accomplished by preferential rates on port-to-port traffic, on intrastate traffic by a free pass or by the actual payment of money; in either case there is a violation of law for which a penalty is provided. "It it be true, as was said in Texas Pacific By. Co. v. Inter- state Commerce Commission, ^^ that 'an intention to promote and facilitate it (commerce) and not to hamper or destroy it is naturally to be attributed to Congress' it seems clear that the port-to-port business of water carriers is not within the purview of the statute. This construction gives work- able effect to every provision of the Act and is in harmony with its remedial purposes. It controls the all-rail and the part-rail-and-part-water transportations, which is the sub- ject of 'common arrangement,' and leaves all other water carriage open to free competition. Upon further considera- tion we are constrained to adopt the view that water car- riers are subject to the law only as to such traffic as is transported under a common control, management, or ar- rangement with a rail carrier, and that as to traffic not so transported they are exempt from its provisions." Cockrell, Commissioner, in concurring in the above ma- jority opinion of the Commission stated: 18 Texas & Pac. Ry. Co. v. I. C. C, 162 U. S. 197-218, 40 L. ed. 940, 16 Sup. Ct. 666. 139 TRANSPORTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 53 "The language of the original Act was: "That the provisions of this Act shall apply to any common car- rier or carriers engaged in the transportation of passengers or prop- erty wholly by railroad or partly by railroad and partly by water when both are used under a common control, management, or arrange- ment for a continuous carriage or shipment between interstate points. "Probably the first judicial construction given to the lan- guage 'or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment' was by Judge Deady in the United States Circuit Court in Oregon in Ex parte Koehler, Receiver, April 4, 1887,^^ in these words: "So long as the railway and the steamer are each operated under a separate and distinct control, making its own rates and only bill for the carriage and safe delivery of the goods at the end of its own route, the Act does not apply to the transportation. To make these carriers subject to the Act the railway and vessel must, as therein provided, be operated or used under a "common control" — a control to which each is a like subject and by which rates are prescribed and bills of lading given for the carriage of goods over both routes as one. "The language of the Act first quoted remained unchanged up to June 29, 1906, when, by the Hepburn Act, the words 'or partly by railroad and partly by water when both are used under a common control, management, or arrangement, for a continuous carriage or shipment' were parenthesized, thus indicating the intention of the Congress to be : "First. To apply the Act to all railroad carriers, regard-. less of their number, on all interstate transportation. "Second. To apply the Act to such interstate transporta- tion partly by railroad and partly by water, and only when,, both the railroad and the water, are used by the respective carriers under a common control, management or arrange- ment for a continuous carriage or shipment. There was and is no necessity for a common control or management between railrbads in interstate transportation. They are com- pletely covered by the Act and are required to publish rates, to establish through routes and joint rates, and to do all necessary things for a continuous carriage or shipment. 19 Ex Parte Koehler, Receiver, 30 Fed. Rep. 867. Eegulation — 9. § 53] INTERSTATE TEANSPOETATION. 130 "As to foreign commerce, exports and imports, the first section limits the jurisdiction to the transit from the place of origin in the United States to the port of transshipment, and from the port of entry to destination either in the United States or an adjacent foreign country, thus confining the jurisdiction exclusively to the part of the transportation wholly within the United States. The Supreme Court of the United States in Armour Paching Co. v. United States,^" uses this language : "There is no attempt in the language of this Act to exempt such foreign commerce as is carried on a through bill of lading; on the contrary the Act in terms applies to the transportation of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment. "As to the coastwise, the river, and the lake commerce, the Act applies only to such passengers and property as both the railroad and the water carriers engaged in trans- porting partly by railroad and partly by water under a common control, management, or arrangement for a con- tinuous carriage or shipment from and to such designated points as may be named in the tariffs of the railroad car- riers concurred in by the water carriers or by the water carriers concurred in by the railroad. The law plainly says : "Every common carrier subject to this Act shall also file with said Commission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the pro- visions of this Act to which it may be a party. "No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as de- fined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act. "Congress has unrestricted 'power to regulate commerce with foreign nations and between the States and with the Indian tribes.' Why has it limited the jurisdiction of the Commission over foreign commerce to the transit of such commerce to and from ports of transshipment and ports of entry, and over coastwise, river, and lake commerce only when such commerce is transported partly by railroad 20 Armour Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. 428. 131 TEANSPOETATION AND CAKEIEKS NOT SUBJECT TO ACT. [§ 53 and partly by water -under a common control, management, or arrangement for a continuous carriage or shipment? The answer is that Congress began legislating for the control and regulation of foreign commerce and commerce wholly by water along our coast and on our rivers and lakes at the very first session of the first Congress held under the Constitution and has ever since, from Congress to Congress, been enacting additional amendatory legislation deemed nec- essary for the control and regulation of such commerce, and placed the enforcement of such laws under the Treasury Department up to February 14, 1903, when the control and regulation was transferred to the Department of Commerce and Labor, where it still remains, and has placed such common carrier wholly by water under the Anti-trust Law, leaving them practically uncontrolled or unregulated only as to their rates, fares, and charges, and as to these they are subject to the common law and can only charge reason- able and just rates. In the discussion and passage of the Literstate Commerce Law in 1887, mention was made of these water carriers, and also in the passage of the Hepburn Act they were in the minds of Congress, but yet Congress has not deemed it necessary or best to place them under this Commission. Transportation wholly by water is entirely different from transportation wholly by railroad and partly, by railroad and partly by water. On our coastwise, river, and lake traffic the water is free and ample for aU passen- gers and shippers to use their own vehicles for such trans- portation, just as on our roads or country highways; but in transportation, wholly by railroad or partly by railroad and partly by water, passengers and shippers cannot use their own vehicles or means of transportation." Then again, the ocean is a highway, free to all and there is no such thing as stability of rates upon water. It is more desirable to leave them unhampered by local restric- tions to meet natural competitive conditions and to bid against each other for cargo. An ocean carrier established under the laws of Cuba and § 54] INTERSTATE TRANSPORTATION. 132 transporting traffic between Havana, Cuba, and Galveston, Texas, is not subject to the Act to Regulate Commerce.^^ For further explanation as to when water carriers are not subject to the jurisdiction of the Interstate Commerce Commission and to the provisions of the Act to Regulate Commerce, see "Inland Water Carriers," Section 43', and "Ocean Carriers," Section 44, ante. § 54. Transportation by Team, Transfer, Express, and Omnibus Wagon, Stage-Goach, etc. The only parties subject to the provisions of the Act and to the jurisdiction of the Interstate Commerce Com- mission are those common carriers engaged in the transpor- tation of passengers or property as described in the Act. The first paragraph of Section 1 of the Act limits the appli- cation of the various provisions of the Act not to all com- mon carriers, but to certain classes of common carriers there expressly named and specified. Aside from the pipe lines and sleeping car and express companies, which are named in a specific and separate clause, the only common carriers to which the provisions of the Act apply^^ are those engaged in the transportation of passengers or property "wholly by railroad or partly by railroad and partly by water. "^^ And certainly wagon carriers are engaged in transporting neither by rail nor by water. The following carriers therefore, do not come within the category of those to which the provisions of the Act apply, no matter whether engaged in state, interstate or foreign commerce : HA. Team or Wagon. The provisions of the Act to Regulate Commerce do not apply to transportation by team or wagon.^* 2iLykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. 22 Act, Section 1, Appendix. 23 Re Exchange Free Transportation (1907), 12 I. C. C. R. 40. 24 J. W. Gary et al. v. Eureka Springs Ry. Co. et al. (1897), 7 I. C. C. R. 286. 133 TEANSPOETATION AND CAERIERS NOT SUBJECT TO ACT. [§ 55 ^ B. Transfer and Omnibus Wagons. The petitioner in this case, the Frank Parmelee Company, was a common carrier engaged in the City of Chicago in transferring passengers and baggage by omnibus and trans- fer wagons between railroad stations and such stations and private residences, and performed service connected with interstate passenger traffic : Held, That nevertheless, such carrier was not subject to the provisions of the Act to Regu- late Commerce, nor to the jurisdiction of the Interstate Com- merce Commission, because it is not a common carrier be- longing to any of the classes enumerated in the Act.^^ T[ C. Express Wagons. From the eases discussed above, it will be seen that com- mon carriers engaged in the transportation of property by express wagons, which are owned and operated separately and independently of those express companies which are operated over railroads as described in the Act, are not subject to the jurisdiction of the Interstate Commerce Com- mission, nor to the provisions of the Act. T[ D. Stage-Coach, etc. A stage-coach company is not subject to the provisions of the Act to Regulate Commerce.^^ Neither are hacks, baggage v.'agons, cabs, drays, carts, automobiles, etc., subject to the jurisdiction of the Commission. § 55. Bridges and Bridge Companies. 1[A. Independently operated. A company owning and operating a bridge which connects two States, and which is independent of any railroad com- 25 Re Exchange Free Transportation (1907), 12 I. C. C. R. 40. 26 w. W. Wylie v. Northern Pacific Ry. Co. et al. (1905), 11 I. C. C. R. 145. § 55] INTERSTATE TEANSPOETATION. 134 pany, is not, either in law or in fact, a common carrier within the scope and meaning of Section 1 of the Act to Regulate Commerce; and it cannot invoke the provisions of said Act to compel railway companies to transact business with or through such bridge company. Between such a bridge com- pany and the railway carriers of the country the Act estab- lishes no such reciprocal relations, duties and obligations as require the latter to form business connections with the former.^'' The bridge company is not itself a common carrier; it merely affords a highway for interstate commerce.^' A bridge across waters between two States, and connecting such States, is an instrument of interstate commerce;^' and, although Congress has plenary power to regulate and control such instrumentalities of commerce, yet the Interstate Com- merce Commission has not been vested with jurisdiction over them.'° See "Bridges and Bridge Companies" Section S9, ante, as to when such instrumentalities of interstate commerce are sub- ject to the jurisdiction of the Commission. 1[B. Where a Eailroad Company acquires the use op a Bridge. Where a railway company, by contract with a bridge com- pany, acquires the right to use a bridge, with its approaches, for the engines, cars and trains of the railway company, the first section of the Act to Regulate Commerce regards the railway as the owner or operator of the bridge and ap- proaches, for the time being, as to all freight transported by the railway company over the bridge; and as to all such traffic the railway company, and not the bridge company, must be regarded as the common carrier. Such a bridge com- 27 Ky. & Ind. Bridge Co. v. L. & N. R. Co., 37 Fed. Rep. 567. 28 Gov. & Cin. Bridge Co. v. Com. of Kentucky, 154 U. S. 204, 38 L. ed. 962, 14 Sup. Ct. 1087. 29 Ibid. 30 For Power of Congress, see Newport & Cincinnati Bridge Co. v. United States, 105 U. S. 470, 26 L. ed. 1143. 136 TEANSPORTATIOlf AND CAREIEES NOT SUBJECT TO ACT. [§ 56 pany is not, either in law or in fact, a common carrier of in- terstate traffic, within the scope and meaning of said section; and it cannot invoke the provisions of said Act to compel railway companies to transact business with or through such bridge company. Between such a bridge company and the railway carriers of the country, the Act establishes no such reciprocal relations, duties and obligations as require the lat- ter to form business connections with the former.^^ § 56. Ferries and Ferry Companies. An independent ferry company is not subject to the pro- visions of the Act to Regulate Commerce, or to the jurisdic- tion of the Interstate Commerce Commission, even though it be engaged in receiving from and delivering freight to con- necting railroad, if it is not operating with such railroad under a common control, management or arrangement for a continuous carriage or shipment. Being a water carrier, it would not be subject to the Act, and would rest under no ob- ligation to publish or observe its tariff rates, whether its transportation were State or interstate, until it entered into some arrangement with a rail carrier for the interstate trans- portation of passengers or property.^^ The Interstate Commerce Commission also' decided that car- riers of interstate commerce by water are subject to the Act to Regulate Commerce only in respect to trafSc transported under a common control, management or arrangement with a rail carrier, and in respect of traffic not so transported they are exempt from its provisions. ^^ Thus it will be seen that a water carrier may unite with a railroad company in making a through route and joint rate on a particular traffic without subjecting all its interstate traffic to the provisions of the law and to the jurisdiction of the Commission. A ferry is defined as "a continuation of the highway from 31 Ky. & Ind. Bridge Co. v. L. & N. R. Co., 37 Fed. Rep. 567. 32 Enterprise Transp. Co. v. Pa. R. R. Co. et al., 12 I. C. C. R. 327. 33 In Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205 (1909). §§ 57, 58] INTERSTATE TKANSPOKTATION. 136 one side of the water over whieli it passes to the other, and is for the transportation of passengers and property, or of trav- elers, with their teams and vehicles, and such other property as they may carry or have with them"^* and, although they are instrumentalities of commerce over which Congress has full and complete power to regulate and control, yet in the Act to Eegulate Commerce they have not seen fit to vest the Interstate Commerce Commission with jurisdiction over them when they are independently operated. "^° For further discussion see "Ferries and Ferry Companies" Section ^0, and "Inland Water Carriers" Section ^S, ante. § 57. Switching Companies. The switching of cars loaded with freight, afterwards trans- ported to another State, which is purely local, and which is independently contracted for, which has no relation to the contract of carriage under which the freight is removed be- yond the border of the State, which has no relation to the ultimate destination of the cars, and which begins and ends before the destination of any car handled is fixed, is a mere preliminary incident to interstate commerce, and subject to State control.'* § 58. Foreigfn Railroads. The Commission has held that, where a foreign railroad cor- poration comes into the United States to compete for traffic against American lines, it should be content to operate upon the same terms with its American competitors ;'' and that a foreign railroad corporation, such as the Grand Trunk Rail- way Company, carrying on traffic between the United States Si St. Clair County v. Interstate Sand & Car Transfer Co., 192 U. S. 454, 24 Sup. Ct. 300, 48 L. ed. 518. 35 For Power of Congress, see Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 5 Sup. Ct. 826. seLarabee Flour Mills Co. v. Mo. Pac. Ry. Co. (1906), 74 Kans. 808, 88 Pac. 72; affirmed in 211 U. S. 612, 29 Sup. Ct. 214. 3T Re Alleged Disturbances in Passenger Rates by Canadian Pacific Ry. Co. (1898), 8 I. C. C. R. 71. 137 TEANSPOETATION AND CAKKIEES NOT SUBJECT TO ACT. [§ 58 and Canada, was subject to the jurisdiction of the Interstate Commerce Commission as to its business in the United States.^' But, while a foreign corporation engaged in traffic in the United States is subject to the Act as to such traffic, yet the jurisdiction of the Interstate Commerce Commission is neces- sarily limited to the United States, and clearly does not apply to a discrimination between places in a foreign country.^^ 38 Re Investigation of Acts and Doings of tie Grand Trunk Railway System (1889), 2 I. C. R. 496. 39 C. M. Cist V. M. C. Rd. Co. (1904), 10 I. C. C. R. 217. CHAPTER VI. CLASSIFICATION OF FREIGHT AND FREIGHT CLASSIFICATIONS. Section 59. Classification most Practical Way of making Rates. 60. Nature of Freight Classifications and their Relation to Freight Tariffs. 61. Territorial Division of the United States for Classification Purposes. 62. Elements to be considered in Fixing Classification. 63. Accuracy in Classification. 64. Prosperity of Shipper does not determine Lawfulness of Classifica- tion. 65. Kind of Package Used. 66. Long Establishment of Classification as Presumption of Reason- ableness. 67. Comparison of different Classifications. 68. Change of Classification. 69. Classification as a means of Increasing Revenue. 70. Discrimination in Classification. 71. Interpretation of Technical Terms as used in Classification. 72. Classification of High Explosives. 73. Classification Committees. 74. Uniform Classification. 75. Publication, Posting and Filing Classifications. 76. Classification Recognized by the Act to Regulate Commerce. 77. Jurisdiction of the Interstate Commerce Commission over Classifi- cation. 78. Penalty for False Classification by Carrier. 79. Penalty for False Classification by Shipper. § 59. Classification Most Practical Way of Making Rates. The transportation of freight involves dealing with thou- sands of commodities presenting infinite variation in kind, use, weight, bulk, value, ease of handling and risk of car- riage. Dividing the general commerce of the country into classes is clearly necessary to any certain and convenient 138 139 CLASSIFICATION OF FREIGHT. [§ 59 process of making rates, and to even an approximately just and reasonable apportionment of necessary transportation revenue among the kinds of traffic carried; in short, classifi- cation must be considered an indispensable feature of rail- road operation. It is the foundation of rate-making.^ The method of classification, which consists of grouping a large number of articles into each of several different classes, with different rates for the transportation of each class, has long existed in the operation of railroads.^ Freight classification is deemed by railroads convenient and essential to any practical system of rate-making.' In making up a class by this method, articles of the same kind are usually grouped together in the same class, as far as this can be done; but, as the articles in each class are so very numerous, there is a very great diversity of such arti- cles, and it results that there are generally but few things of the same kind that can be placed in one class. This is unavoidable, because the articles are so numerous, while the classes are but few. All articles embraced in a class are usually charged the rate of that class, whatever it may be. To carrier and shipper alike it indicates the amount of the rate charged. This mode of making rates by classification is intended to be for the convenience of the railroad company, and also for the accommodation of the shippers, and long experience has shown that it is the best and most practical way yet devised for dealing with the subject.* Classification is recognized as a necessary method of ad- justing the burdens of transportation equitably upon the various articles of traffic, in view of differing circumstances and conditions, and lut for the necessity of such adjustment, 1 Eighth Annual Report of I. C. C. (1894). 2 Report of Industrial Commission (1902), Volume 19. 3 Coxe Bros. & Co. v. L. V. R. Co., 3 I. C. R. 460; affirmed in Schumacher Milling Co. v. C. R. I. & P. R. Co. (1893), 6 I. C. C. R. 61, 4 I. C. R. 373. * James Pyle & Sons v. E. T. V. & G. R. Co. (1888), 1 I. C. R. 767; 1 I. C. C. R. 473. § 60] INTERSTATE TEANSPOETATIOK. 140 considerations based alone on weight and distance of haul would probably determine rates, except as modified by com- petition. This method, while securing practical uniformity, would probably deprive many articles which are now impor- tant factors in commerce of the benefit of transportation to distant points.^ §60. Nature of Freight Classifications and Their Relation to Freight Tariffs. Classification is the basis of freight rates. When an article is presented to a common carrier for shipment, the classifica- tion is examined and the rate upon the article determined by the class to which such article is assigned.^ The classification and the tariff of rates are interdependent.^ The classification is a means of making a rate. It fulfills no purpose in itself. The tariff is the necessary complement of the classification. The one is useless without the other.^ The function of the classification is to segregate all possible commodities which may be shipped into the several numerical or literal classes which are named in the freight tariff.^ The classifications do not contain any rates whatsoever, but provide the class or rating which the articles mentioned therein shall take, the individual carriers publishing and fil- ing the tariffs, which name the rates for the various classes of freight provided for in the classification, and especially re- ferring to the particular classification by which the rates are to be governed.^" The freight trafiic of the railways of the United States is carried under two general classes of schedules, commonly known as "class tariffs" and "commodity tariffs." The lat- ter has reference to schedules applicable to such articles as. 6 Schumacher Milling Co. v. C. R. I. & P. Ry. Co. et al., 6 I. C. C. R. 61, 4 I. C. R. 373. 6 Report of Industrial Commission (1900), Volume 4. t Noyes' American Railroad Rates. 8 Ibid. = Report of Industrial Commission (1902), Volume 19. 10 Sixteenth Annual Report of I. C. C. (1902). 141 CLASSIFICATION OF FREIGHT. [§ 61 grain, lumber, coal, live stock, dressed beef, fertilizers, oil, etc., transported between sections of the country where arti- cles have attained a commercial and shipping importance which has made necessary specific rules for their transporta- tion differing from those covering classified traffic, as well as a somewhat lower scale of rates than is applied to the latter. Class tariffs are arranged to show the rates of the respec- tive classes contained in the freight classification. In the latter are found the great majority of articles carried by the railways, classified in accordance with the various elements that properly enter into the determination of freight charges. Under these also are found the commodities mentioned above, and, although exceptionally treated in certain sections as to rates, they are amenable to some rule of the classification. The rate-making foundation for all commodities is seen to lie largely in the freight classification. The development of the railroad business of the country has been followed by the enlargement and extension of freight classifications. The publications are now current guides to the shipping public, and have an enormous circulation. They are arranged in convenient manner, wherein may be found all commodities of commerce, described in every probable form of shipment with a rate reference for each description, together with the rules and regulations under which each will be accepted for car- riage." § 61. Territorial Division of the United States for Classifi- cation Purposes. T[A. In Geneeal. The three leading classifications now practically governing the freight traffic of the United States are the "Official," "Southern" and " Western. "^^ In each of the three divisions of territory described below 11 Seventeenth Annual Report of I. C. C. (1903). 12 Duncan v. A. T. & S. F. R. Co. (1893), 4 I. C. R. 385. § 61] INTERSTATE TRANSPOETATION. 142 exceptions to the principal classifications are made by State commissions and by individual roads for State or local traf- fic.^^ ^B. "Official" Classification Teeeitoey. The Official Classification embraces that portion of the United States between Canada on the north, the Atlantic Ocean on the east, the Potomac and Ohio Eivers on the south and the Mississippi River on the west." This territory in- cludes what is known as Central Freight Association Terri- tory and Trunk Line Territory, both being governed by the Official Classification.^^ The Central Freight Association Territory comprises the area west of Pittsburg, Pa., and Buffalo, N. Y., including the lower peninsula of Michigan and east of a line from Chicago, HI., to St. Louis, Mo., the Mississippi River from St. Louis, Mo., to Cairo, 111., and north of the Ohio River." Trunk Line Territory lies north of the Potomac River and east of Pittsburg, Pa., and Buffalo, N. Y." The first classification adopted by the railroads to control the territory above described as Official Classification Terri- tory, was made contemporaneously with the going into ef- fect of the Act to Regulate Commerce, presumably to comply with that Act, and took effect on April 1, 1887.^* Since then the classification has been regularly reissued either annually or semi-annually. The Official Classification contains six regular classes and three special classes in the form of rules, making practically nine classes in all. ^ C. Southern Classification Teeeitoey. The Southern Classification is applied generally by roads 13 Third Annual Report of I. C. C. (1889). 14 C. H. & D. Ry. Co. v. I. C. C. (1907), 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. 648, affirming 146 Fed. Rep. 559; Sixteenth Annual Report of I. C. C. (1903). 15 Ihid. i« Ihid. 1' Ibid. IS Ihid. 143 CLASSIFICATION OP FREIGHT. [§ 63 south of the Ohio Eiver and east of the Mississippi River to the seaboard.^'' The Southern Classification contains fourteen classes, six numeral, numbered 1 to 6, and eight literal classes lettered A. to H. H D. Western Classification Territory. The Western Classification governs in the territory north and west of Chicago, 111., west of a line drawn from Chicago to St. Louis, and west of the Mississippi River from St. Louis, Mo., to New Orleans, La., on the Gulf of Mexico to the Pa- cific Ocean.^" The Western Classification contains ten classes; five num- eral, numbered 1 to 5, and five literal classes lettered A. to E. § 62. Elements to be Considered in Fixing Classifica,tion. 1|A. In General. Rates are never measured exclusively by the weight of the articles carried, or by bulk, or by the cost to the carrier of transporting them, or by the value to the owner in having them transported ; and if all of these and other considerations bearing upon the subject are taken into account in the de- termination of rates, as they habitually are, there is no rule by which it can be determined how much importance should be attached to any one, or any combination of them.^^ The first step toward the imposition of rates for the trans- portation of merchandise is a classification of the articles which, it is supposed, may be offered for carriage, and the arranging of them into classes which are to bear different rates. In making this classification all the considerations that can properly bear upon it are supposed to be taken into account, and th6y are severally given such weight as the car- rier believes it is proper to allow them under all the cir- cumstances attending its owji business, and all the business of 19 Third Annual Report of I. C. C. (1889). 20 Ibid. 21 Fourth Annual Report of I. C. C. (1890). § 63] INTEESTATE TRANSPORTATION-. 144: the section, or of the interests that are served by his road. An important question always is, What is the probable cost of the carriage of the articles severally? and each is expected to be so classed that the rate it would bear would be such as to cover this cost, and also to afford some profit to the car- rier. But this is only a general rule. There are many cases in which property may be expected to be offered for trans- portation, the weight of which, or the bulk, is so out of pro- portion to its value that it cannot possibly, if considered by itself, bear such charges for transportation as will leave any profit to the carrier, and must consequently be carried at a rate that falls below the point of fair profit or not be carried at all.^^ This well-known fact has led to the common saying that no traffic must be charged greater than it can bear — a saying in- tended to indicate the maximum, though often understood in quite an opposite sense. It is therefore found that, in every classification, many articles are so classified that the rates upon them will give to the carrier but very slight profit, and if the carrier were deliberately to refuse altogether to trans- port them, the refusal might, doubtless, in some eases be justi- fied, if its own interest were exclusively to be considered. But the considerations that determine the classification in such a case look beyond the particular article, and relieve what would be an oppressive, and, perhaps, prohibitory bur- den, by imposing some portion thereof upon other articles that can better afford to bear it. In every classification, therefore, articles whose value is very great, in proportion to the bulk or weight, are classed high, in the expectation that the rates imposed upon them will pay, not merely the cost of transportation and a fair profit to the carrier, but will con- tribute also toward adequate remuneration for the transpor- tation of such articles as cannot bear proportionate charges. Thus the cost of carriage to the carrier itself is no more a controlling consideration than is the value of the carriage to the owner of the property, and, when both are taken into ac- 22 Fourth Annual Report of I. C. C. (1890). 14:5 CLASSIFICATION OF FREIGHT. [§ 62 count, questions of a public character also have weight, inas- much as it is important to make a great public agency rea- sonably profitable to its owners, and at the same time as use- ful as may be to the general public.^^ This method of classification has been so long continued, and so universal, that every well-informed person in a com- munity understands that, made as it is for the purposes of rating, it is based upon an almost infinite variety of circum- stances, having regard not merely to the interests of the car- rier and the value of his service, but also to the interests of the parties and sections served, and to considerations which may change from day to day so as to demand a change in the proportionate rating. A rule that should measure charges by cost would work an entire revolution in the business of transportation, since it would no longer be prac- ticable to make articles whose value was great in proportion to bulk or weight aid in the transportation of articles of a different nature, and the carrier would be compelled to de- mand upon the traffic in heavy and bulky articles such com- pensation as, in many eases, the traffic could not possibly bear. The long-haul commerce in some of the most impor- tant articles now transported for great distances would, un- der such a requirement, cease altogether, to the great detri- ment of the country at large, and with the probable result that many of the carriers now usefully serving the country, and in a prosperous condition, would be seriously crippled. Nothing more disastrous to the commerce of the country could possibly happen than to require the rating for rail- road transportation to be fixed exclusively by this one rule. But the consequences would be similar if any other single test of a carrier's charges were to be applied, and if any two or three combined were made use of the probability of in- jury to the country, and of disaster to the roads, would be only a little farther removed. The carriers are entirely right in assuming that they best perform their duty to the public when they take into consideration, in making classification 23 Fourth Annual Report of I. C. C. (1890). Eegulation — 10. § 62] INTERSTATE TEANSPOETATION. 146 and in fixing their rates, not merely the question of cost to themselves and of value to the owner of the property car- ried, but every consideration of a public nature which can fairly bear upon the question of public usefulness.^* It is a sound rule for carriers to adapt their classification to the laws of trade. ^^ Classification must be based upon a real distinction from a transportation standpoint.^' The Commission will not re- gard a classification as scientific, or a difference in rates well based, which is altogether founded upon a distinction that has no transportation significance. Such a differentiation, if permitted and extended throughout the various classes of freight, would lead to an almost endless multiplication of rates, which could find no excuse save the use which might be made of the article transported.^' The whole subject is so exclusively one of discretion with the railroad managers and the officers of associations who are brought in contact with the business itself, and with the people whom they serve, that they are not expected to defer to legal counsel upon questions of classification, but would assume that such a question was one altogether aside from his proper province, and would be more likely to consult with the merchants or manufacturers, or others who are to be the chief patrons of their roads, than with one whose business was to deal with legal questions, and not with ques- tions of discretion and of purely business judgment.^* "When classification is made in the way explained it is very obvious that the rate imposed upon any single article of com- merce, if it is challenged as unjust, cannot be taken up by itself, and its reasonableness determined, without regard to what is charged upon other articles which are subject to 2*Fourtli Annual Report of I. C. C. (1890). 25 Thurber et al. v. N. Y. C. & H. R. Rd. Co. et al. (1890), 2 I. C. R. 742, 3 I. C. C. R. 473. 26 Stone-Puller Co. v. Pa. Co. et al. (1907), 12 I. C. C. R. 216, affirmed in Ft. Smith Traffic Bureau v. St. L. & S. P. Rd. Co., 13 I. C. C. R. 651. 27 IMd. 28 Fourth Annual Report of I. C. C. (1890). 147 CLASSIFICATION OF FREIGHT. [§ 63 transportation by the same carrier. No article is rated inde- pendently. No one article is rated from considerations that pertain to itself alone ; and to determine whether the rate is reasonable, it is necessary, in every instance, to go beyond the single article and consider the whole of classification and the whole business of the carrier under it. To challenge the charge for the carriage of a single article is to challenge to some extent the whole rate sheet, and calls for careful consideration of the question whether the rate to be charged to the one article is out of just proportion when all the cir- cumstances and conditions which the railway officers must be supposed to have had in mind in making the classification and the rating are considered.^" The classifications, as now constructed, have for their foun- dation the following elements : Whether commodities are crude, rough or finished; liquid or dry; knocked down or set up; loose or in bulk; nested or in boxes, or otherwise packed; if vegetables, whether green or dry, desiccated or evaporated; the market value and shippers' representations as to their character; the cost of service in general; length and direction of haul; the season and manner of shipment; the space occupied and weight; whether in carload or less than carload lots; the volume of annual shipments to be cal- culated; the sort of ear required, whether fiat, gondola, box, tank or special; whether ice or heat must be furnished; the speed of trains necessary for perishable or otherwise rush goods; the risk of handling, either to the goods themselves or other property; the weights, actual and estimated; the carrier's risk or owner's release from damage or loss;'" the competitive element or the rates made necessary by competi- 29 Fourth Annual Report of I. C. C. (1890). 30 Eleventh Annual Report of I. C. C. (1897). See also Myer v. C. C. C. & St. L. Rd. Co., 9 I. C. C. R. 78; Seventh Annual Report of I. C. C. (1903); Report of Industrial Commission (1900), Volume 4; Schumacher Milling Co. v. C. R. I. & P. Ry. Co. et al., 6 I. C. C. R. 61; First Annual Report of I. C. C. (1887) ; Page et al. v. D. L. & W. Rd. Co. et al. (1896), 6 I. C. C. R. 548; Procter & Gamble Co. v. C. H. & D. Ry. Co. et al. (1903), 9 I. C. C. R. 440; Harvard Co. v. Pennsylvania Co. et al. (1890), 4 I. C. C. R. 212, 3 I. C. R. 257. § 62] INTERSTATE TRAJStspORTATION. 148 tion;^^ hazardous and extra hazardous freight; liability to waste or injury in transit.'^ Upon such articles as dynamite, nitroglycerine, gunpowder, and all other explosives, a higher rate is charged than upon other articles of similar value, weight and size that are not explosives, on account of the risk connected with their trans- portation, arising particularly in the event of serious acci- dent. In one case there is little, if any, risk to the carrier that the article transported will be destroyed in case of acci- dent, or that, being destroyed itself, it will also contribute to the destruction of other freight, while in the other case there is very great risk; in case of serious accident explo- sives will not only be destroyed, but will contribute to the destruction of other large quantities of freight. This is one illustration. Another is, that freight which occupies a great deal of space must, to some extent, be charged for that space ; or, if it be freight of very great value, it is deemed that a higher rate may be charged upon it than if it be freight of very little value, on account of the responsibility connected with the service performed and the corresponding benefit conferred to the owner of the freight by its transportation; or, if it be freight that is liable to waste or injury in transit, then a higher rate may be charged for its transportation than upon an article of similar value not liable to any waste or injury in transit, in consequence of the risk, care and re- sponsibility assumed by the carrier.^' As the freight rates of a railroad are laid for the purpose of obtaining revenue from its operation, it is but just and fair that they should be so distributed upon the different articles transported, as far as this can be done, as to bear upon all with relative equality. This being true, the con- siderations referred to above, as influencing carriers in mak- ing these rates, are just in themselves, although their appli- cation to different articles of freight is frequently difficult, 31 Seventeenth Annual Report of I. C. C. (1903). 32Pyle V. E. Tennessee, Va. & Ga. R. Co. (1888), 1 I. C. C. R". 473, 1 I. C. R. 770. 33 Ibid. 149 CLASSIFICATION OF FREIGHT. [§ 68 and must unavoidably require the exercise of great care to avoid occasional unjust discrimination.^* All these are considerations which may justly afEect rates, and therefore may be taken into account in classification.'' These circumstances, though they may appear bewildering to the layman, are comparatively simple to the expert.'" U B. Value of Service v. Cost of Service Principle in FIXING Classification. It was very early in the history of railroads perceived that, if these agencies of commerce were to accomplish the great- est practical good, the charges for the transportation of dif- ferent articles of freight could not be apportioned among such articles by reference to the cost of transporting them severally, for this, if the apportionment of cost were possible, would restrict within very narrow limits the commerce in articles whose bulk or weight was large as compared with their value.^^ On the system of apportioning the charges strictly to the cost, some kinds of commerce which have been very useful to the country, and have tended greatly to bring its different sections into more intimate business and social relations, could not ha,ve existed at all, for the simple reason that the value at the place of delivery would not equal the purchase price with the transportation charges added. The traffic would thus be precluded, because the charge for carriage would be greater than it could bear. On the other hand, the rates for the carriage of articles within small bulk or weight concentrating great value would on that system of making rates be absurdly low; low when compared to the value of the articles, and perhaps not less so when the com- parison was with the value of the service in transporting them.'* 34 Pyle V. East Tennessee, &c., R. Co., 1 C. C. R. 473, I. C. R. 770. 35 First Annual Report of I. C. C. (1§87). 36 Seventeenth Annual Report of I. C. C. (1903). 37 First Annual Report of I. C. C. (1887). 38 Ibid. § 63] INTERSTATE TEANSPOETATION. 150. It was, therefore, seen not to be unjust to apportion the whole cost of service among all the articles transported, upon a basis that should consider the relative value of the service, more than the relative cost of carriage. Such method of apportionment would be best for the country, because it would enlarge commerce and extend communication; it would be best for the railroads, because it would build oip a large business, and it would not be unjust to property owners, who would thus be made to pay in some proportion to the benefit received. Such a system of ratemaking would in principle approximate taxation; the value of the article carried being the most important element in determining what shall be paid upon it.^^ Accordingly and for convenience and certainty in impos- ing charges, freight is classified; that which comes in one class being charged a higher proportional rate than that which is placed in another.*" The articles or the interests that can least afford to bear such burdens are given the benefit of low rates and higher proportional rates are levied upon the articles and interests which would feel the burden less. This method of adjusting rates has been and is of very high value to the country; indeed, it may be said to be indispensable. The business of a railroad company as a carrier of freight is to exchange for the people the products of different sec- tions and countries, and this exchange, as to many com- modities in a country so large as ours, or indeed in any considerable country, would be restricted to comparatively small sections if articles which are at once bulky and cheap and articles which in small compass comprise very great value were alike charged rates for transportation which dis- regarded the value as an element of estimation, or took it into account only so far as reasonable insurance against loss or injury might render prudent. Railroad managers very soon discovered therefore, that they could not measure their rates exclusively by the standard were cost of carriage 39 First Annual Report of I. C. C. (1S87). 40 Ibid. 151 CLASSIFICATION OF FBEIGHT. [§ 62 of the several kinds of traffic separately considered; but it was wise for themselves and best for the country that the cost of carriage be considered in the aggregate and that the rates which are to be the compensation for the service per- formed be then apportioned on special consideration of the value of the service to the kind of traffic severally. Such an apportionment would seldom be burdensome to articles of high value, but it would relieve cheaper articles from burdens, which, if apportioned strictly to the cost of the carriers of their transportation, would render carriage for considerable distance out of the question.*^ ][ C. Comparison of Diffeeent Articles in fixing Classification. Where questions of classification and rates are involved as to one particular article of freight, it is often necessary to examine and consider the classification and rates upon other articles in which the same calculations in respect of value, bulk and expense of handling, and of carriage, would to a considerable extent enter; and for the purpose of such comparison it is not indispensably necessary that the articles should be competitive with each other, though if they are, competitive then this feature must more strongly bring into view the fact of discrimination in rates, if there be such.*^ It has been repeatedly claimed by carriers and repeatedly held by the Commission that in the forming of a classifica- tion analogous articles should ordinarily be placed in the same class.*^ Manifestly in determining what freight rates shall be borne by different commodities an attempt should be made to obtain a fair relation between those commodities, and a classification which utterly ignores all considerations 41 Second Annual Report of I. C. C. (1888). "Harvard Co. v. P. R. R. Co. et al. (1890), 4 I. C. C. R. 212; 3 I. C. R. 257. 43 Warner v. N. Y. C. & H. R. R. Co., 4 I. C. C. R. 32, 3 I. C. R. 74; Harvard Co. v. Penna. Co., 4 I. C. C. R. 212, 3 I. C. R. 257; Page v. D. L. & W. R. Co., 6 I. C. C. R. 548. § 62] INTEESTATE TEANSPOKTATION. 153 of this kind or which utterly fails to give due weight to such considerations is unjust and unreasonable.^* Unreasonable or unjust classification of a commodity is not shown by evidence of lower classification for articles widely dissimilar in the elements of risk, weight, bulk, value or general character. The proper method of comparison is the classification accorded by the carriers to analogous articles.*^ The elements of bulk, weight, value, and character of commodities are main considerations in determining approxi- mately what freight articles are so analogous as to entitle them to the same classification.*" 1[ D. Value of Aeticles as an Element in eixing Classi^'ication. In General. An order of the Interstate Commerce Commission pro- hibited railway carriers from charging any greater com- pensation for the transportation of window shades of any description — whether the cheap article, worth $3 per dozen, or the hand-decorated article, worth $10 per pair — than the third-class rate, the rate charged for the transportation of the materials used in making window shades. Held, Upon petition to enforce compliance with the order, that the court would refuse to enforce such order, ignoring as it did the element of the value of the service in fixing the reasonable compensation of the carrier, and denying him any remuneration for additional risk.*^ While the value of the service of transportation and the extent of the carrier's risk are measured by, among other things, the value of the property transported, and this is an "Myer v. C. C. C. & St. L. Ry. Co. et al. (1901), 9 I. C. C. R. 78; see also Myers, etc., v. Pa. Co. et al., 2 I. C. R. 403. 45 Brownell et al. v. Col. & Cin'tl Mid. R. Co., 4 I. C. R. 285. 46 Page V. D. L. & W. R. Co. (1896), 6 I. C. C. R. 548, following James v. Can. Pac. R. Co., 4 I. C. R. 274, 5 I. C. C. R. 612. 4T I. C. C. V. D. L. & W. R. Co. et al. (1894), 64 Fed. Rep. 723, refusing to enforce order of Commission in Page v. D. L. & W. R. Co., 61 I. C. C. R. 148; 4 I. C. R. 525. 153 CLASSIFICATION OF FREIGHT. [§ 62 important factor in rate making, it is to be noted that as shipments of goods of the same kind or class vary greatly in value, for the same weight, some being many times more valuable than others, a uniform rate per hundred weight for any commodity or class of trafSc cannot bear the same proportion to the value of each shipment of such goods. The carrier can only be expected in establishing uniform class or commodity rates to take into account the estimated aver- age value of shipments of the class or commodity to which the rates are applied.*^ Commercial Value of Article as distinguished from Intrinsic Value. In arranging the classification of articles of commerce, their market value and the shippers' representations to the public as to their character may properly be taken into ac- count in ascertaining the analogy they bear to other articles, and determining the class to which they justly belong. This is especially applicable to articles in which there is no free competition among producers and shippers. And carriers are not required . to estimate the intrinsic value of freight as distinguished from its commercial value for purposes of classification and rates.*" ^ E. Cost of Production as an Element in Classification. The rate of compensation which railroad companies may lawfully receive for transporting services cannot be so limited that the shipper may in all eases realize actual cost of pro- duction. Charges for transportation service should have reasonable relation to the cost of production and to the value of the service to the producer and shipper, but shall not be so low on any traffic as to impose a burden on other traffic.^" 48 Duncan v. A. T. & S. F. R. Co. (1893), 4 I. C. R. 385. 49 Warner v. N. Y. C. & H. R. R. Co. (1890), 4 I. C. C. R. '32; 3 I. C. R. 74. 50 In the Matter of Alleged Excessive Freight Rates and Charges on Food Products, 3 I. C. R. 93. § 62] INTERSTATE TEANSPOETATION. 154: 11 F. Volume of Traffic as an Element in fixing Classification. The volume of traffic supplied by an article for transpor- tation is an element that may be considered in its classifi- cation, as a basis for rates that are reasonable both for carriers and shippers.^^ The mere- fact that one article is of more general use and therefore shipped in greater quantities than the other, when each as a rule is shipped in less than carload quanti- ties, and of no considerable difference in bulk, weight, and value, and of no appreciable difference in expense of hand- ling and of haul, constitutes in itself no reason why the first should receive a lower rate than the latter. In such a case the mere quantity, not measured by any recognized unit adapted to carriage, and lessening the expense of handling and carriage, cannot be allowed to affect rates in the trans- portation of property.^^ The general rule is this : ' ' The greater the tonnage of an article transported, the lower should be the rate." No rule is more firmly founded in reason or more universally recognized by carriers.^^ "When an article moves in sufficient volume and the de- mands of commerce will be better served, it is reasonable to give lower classification for carloads than that which is applied to L. C. L. quantities, but the difference in such classification should not be so wide as to be destructive to competition between large and small dealers. The justice of the claim for a lower rating on carload lots can only be determined by the facts in each case.^* 51 Warner v. N. Y. C. & H. R. R. Co. (1890), 4 I. C. C. R. 32, 3 I. C. R. 74. 52 Harvard Co. v. P. R. R. Co. et al. (1890), 4 I. 0. C. R. 212, 3 I. C. R. 257. 53 Tift V. Southern Railway, 138 Fed. Rep. 753 (1905), affirmed In 206 U. S. 428, 51 L. ed. 1124, 27 Sup. Ct. Rep. 709. siBrownell et al. v. Col. & Cin. Mid. R. Co. et al., 4 I. C. R. 285; Thurber v. N. Y. C. & H. R. R. R. Co., 2 I. C. R. 742, 3 I. C. C. R. 273, cited and reaffirmed. 155 CLASSIFICATION OF FREIGHT. [§ Q2 However, in the carriage of great staples, which supply an enormous business and which in market value and actual cost of transportation are among the cheapest articles of commerce, rates yielding only moderate profit to the carriers are both necessary and justifiable.^^ H G. Cost of Service as an Element in fixing Classification. Classification of freight as actually effected in practice in the United States seems to be almost independent of con- siderations of cost, except in a most general way. Cost of course enters in, so far a;S the entire revenue obtained under the classification upon all kinds of commodities must jointly equal or exceed the expenditures; but, on the other hand, as applied in practice it is difficult to see how any other principle than "charging what the traffic will bear" receives consideration.^" The Commission has stated that railway classification and rates are not based upon cost of service; that in a general way that element must have consideration, but that com- mercial conditions, including characteristics of the traffic and the amount of probable gross and net revenue, are the really determining factors.^' In one proceeding in passing upon the rates upon corn, the Commission said :^' "What part of the whole burden of maintaining the roads must the corn pay? How much shall be apportioned to corn and agricultural products and how much to the ma- chinery used? How much on the necessaries and comforts used? "We think no better rule applicable to the matter under investigation than that applied by the railroads them- selves, in accordance with which rates are so adjusted as to secure the largest interchange of commodities. This rule 55 In the Matter of Alleged Excessive Freight Rates and Charges on Food Products, 3 I. C. R. 93. 58 Report of Industrial Commission (1902), Volume 19. 5T National Hay Association v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264. 58 In the Matter of Alleged Excessive Freight Rates and Charges on Food Products, 3 I. C. R. 93. § 62] INTEHSTATE TBANSPOETATION. 156 is approved by its frequent application in the movement of western grain through the voluntary action of the roads. Put such a rate on corn as will encourage and warrant its movement if such a rate be fairly remunerative." 11 H. DiEEBEENCE IN ClASSIEICATION BETWEEN- CaELOAD AND Less than Caeload Quantities. A classification of freight designating different classes for carload quantities and for less than carload quantities for transportation at a lower rate in carloads than in less than carloads is not in contravention of the Act to Regu- late Commerce. The circumstances and conditions of the transportation in respect to the work done by the carrier and the revenue earned are dissimilar, and may justify a reasonable difference in rate. The public interests are sub- served by carload classifications of property that, on account of the volume transported to reach markets or supply the demands of trade throughout the country, legitimately or usually moves in such quantities.^' However, a difference in rates upon carloads and less than carloads of the same merchandise between the same points of carriage so wide as to be destructive to competition be- tween large and small dealers, especially upon articles of general and necessary use, and which, under existing con- (fitions of trade, furnish a large volume of business to car- riers, is unjust and violates the provisions and principles of the Act."" If I. Classification oe Ahticles in Less than Carload Lots. Freight is carried either in carload lots, or in less than carload lots. This division of freight necessarily attends transportation by rail. Classification, within the meaning of the Act to Regulate Commerce, relates to these divisions separately. The classification of an article in less than car- loads is not controlled by the classification of the same ssThurber et al. v. N. Y. C. & H. R. R. R. Co. et al. (1890), 2 I. C. R. 742, 3 I. C. C. R. 473. eo Ibid. 157 CLASSIFICATION OF FREIGHT. [§ 63 article in carloads, nor its reclassification by the maintenance of the relative difference in rates between the two; but on the contrary the classification or reclassification of an article in less than carload lots should be controlled by the rela- tion it bears to other articles in less than carload lots — that relation to be determined by the degree in which, in com- parison with such other articles, its handling and carrying is, or may be, afEected by the cost of service, competitive and commercial conditions, volume, density, distance, value and risk of loss or damage. It is true that these elements must also be considered in determining the classification of articles in carload lots, but from a different standpoint. A given article of traf&c may be more or less desirable when shipped in less than carload lots, than when shipped in car- load lots. Bulk, weight, form, manner of packing, etc., may materially affect the classification of different articles to be carried in the same car, when they might have little or no weight in the classification of a single article to be carried in carload lots. A single ear may carry many different articles and necessarily, the convenience, or inconvenience and cost of handling and carrying, must be considered in fixing the rate which each should bear and in determining the class to which each should be assigned, but the elements of disadvantage attending the combination of different ar- ticles in one shipment are eliminated from shipments of each article separately, in carload lots, and it follows that rates and classification must be controlled by the character of the shipment; that shipments which include and combine different articles of traffic in less than carload lots, require rates and classification necessary to meet the convenience, inconvenience, and cost of handling and carriage incident to such combination, which do not attend the shipment of a single article in carload lots. In other words, the classifi- cation of an article in less than carload lots should be based upon its relation to the other articles of carriage in less than carload lots, and not upon its relation to that article for carriage in carload lots.*"^ 61 1. C. C. V. C. H. & D. Ry. Co. (1905), 146 Fed. Rep. 559, affirmed in 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. Rep. 648. § 63] INTEBSTATE TRANSPORTATION. 158 For example: The classification of soaps for carriage in less than carload lots should be based upon its relation to the other articles for carriage in less than carload lots, and not upon its relation to soap for carriage in carload lots.°^ T[J. Chakacter of the Package in which Goods are SHIPPED AS AN ELEMENT IN CLASSIFICATION. The character of the package or the manner in which goods are packed for transportation is commonly used as an element in arriving at the proper classification. The Com- mission has held that generally this principle of fixing classi- fication is not unreasonable or in violation of the Act to Regulate Commerce.*^ Tf K. Competition as a Factor in Classification. Competition is an important factor in fixing classification. Such competition includes not only that between carriers, but also that of a commodity produced in another section, and sometimes the competition of one kind of traffic with another.'* ^ L. Carriers may accept Shipper's Description of Articles in fixing Classification. A manufacturer's description of an article to induce its purchase by the public also describes it for transportation, and carriers may accept his description for purposes of classification and rates. Carriers are not required to analyze freight to ascertain whether it is in fact inferior to the description or public representation under which it is sold, in order to give it a lower rate corresponding to its actual value."' 62 1. C. C. V. C. H. & D. R. Co., 146 Fed. 559, aff'd., 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. 648. 63 Trades League of Philadelphia v. P. W. & B. R. R. Co. et al. (1899), 8 I. C. C. R. 368. 64 National Hay Association v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264. 65 Andrews Soap Co. v. P. C. C. & St. L. Rd. Co. et al., 3 I. C. R. 77. 159 CLASSIFICATION OP FREIGHT. [§ 63 § 63. Accuracy in Classification. ^A. Classification of Peeight is necessarily General. An exact classification is impossible. Unless the number of classes is infinitely increased there must always be ar- ticles in respect to which it will be very difficult to deter- mine into which of two classes they should fall.'" In a freight classification such as the "Official," which contains six general classes, it is manifestly impossible to bring together in each class only such articles as resemble each other in character, use, value, volume, bulk, weight, risk and expense of handling which have so often been re- ferred to as governing conditions in freight classification. The best that can be done under such a scheme of classifi- cation is to place two or more articles possessing general similarity in the same class and where an article is so anal- ogous to any other to put that article in the class containing commodities which are most nearly related to it in general character and other essential respects.*' In groupiiig a large number of articles in the same class and thereby giving them the same rate no two would be exactly alike in freight qualities. It is impossible to secure exact accuracy of treatment of all the varieties included in the class, and classification in its nature must be a compro- mise. More or less difference in their freight aspect can be shown between two articles in the same class. ^^ As classifications and rates must necessarily be general, an injurious effect in some cases and to some interests is unavoidable ; but so long as in the main they are satisfactory, the rule applies that the good of the greater number is paramount.*^ To demonstrate that there are occasional inequalities of 66 Rea V. M. & O. R. Co. (1897), 7 I. C. C. R. 43. 67 National Hay Association v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264. 68 Procter & Gamble Co. v. C. H. & D. Rd. Co. et al. (1890), 4 I. C. C. R. 87, 3 I. C. -R. 131. 69 Thurber et al. v. N. Y. C. & H. R. Rd. Co. et al. (1890), 2 I. C. R. 742, 3 I. C. C. R. 473. § 64] INTERSTATE TKANSPOKTATION. 160 rate upon some of the articles thus grouped together in one class as compared with others in that class is not to prove that the whole system is wrong, but simply that there is or may be some slight or occasional difference in the rate charged upon some one article in proportion to its value, bulk, or weight when compared with another, that inflicts no substantial wrong upon anyone, and is one of the mere incidents of the service by this method of transportation.'"' 1[ B. Minuteness of Classification. No classification can be so minute as to conform to the differing varieties and conditions of traffic, and to separa,te different grades or densities of the same article into different classes with varying rates, even if it could be accomplished, would go far to defeat the real purpose of classification.'^ While there are exceptional instances requiring deviation from methods generally employed in constructing freight classification, it is manifest that to require the separation and grading into different classes with varying rates dif- ferent grades of the same articles of freight would greatly complicate the work and go far to defeat the very purpose of classification, and even then it would be impractiable to apportion with mathematical exactness the burdens of trans- portation; the best result obtainable in this direction is reasonable and substantial approximation.'- §64. Prosperity of Shipper does not Determine Lawfulness of Classification. Whether certain shippers have been prospering under the existence of a certain classification on their commodity does not determine the question whether the classification of such commodity is lawful. The aim of investigations under the provision of the Act to Regulate Commerce is not to ascer- 70 James Pyle & Sons v. B. T. V. & G. R. Co. (1888), 1 I. C. R. 767, 1 I. C. C. R. 473. "Planters' Compress Co. v. C. C. C. & St. L. Ry. Co. et al., 11 I. C. C. R. 382. '2 Derr Mfg. Co. v. Penna. Rd. Co. et al., 9 I. C. C. R. 646. 161 CLASSIFICATION OF FREIGHT. [§§ 65-67 tain how high classification or rates the affected industries will stand; the purpose of such investigations is to deter- mine the duties of carriers and the rights of shippers and the public under the lawJ^ § 65. Kind of Package used. A shipper should not be subjected to unnecessary restric- tions as to the kind of ease or package he shall use.''* § 66. Long Establishment of Classification as Presumption of Reasonableness. Where common laundry soap in less than carload lots was assigned to the fourth class in the first classification made under the Interstate Commerce Act in 1887, and was volun- tarily maintained there by the defendant railroad companies for more than thirteen years, defendants were not justified in reclassifying such freight so that it would pay 20 percent less than third class rates without changing the carload classification, on the mere claim that the prior classification had been inadequate to pay the cost of carriage on less than carload lots, there having been no general reclassifi- cation which would proximately apportion the cost of the service equally among the different articles of traffic as between carloads and less than carload lots.'^ § 67. Comparison of Different Classification. The fact that different rates and classifications are in force in different sections of the country will not of itself warrant an extension of the lower rate and classification to the section where the higher rate and classification are applied. There must be proof of unlawful discrimination or disadvantage, or of unreasonably high rates, to procure TsPage V. D. L. & W. R. Co. (1896), 6 I. C. C. R. 548, following James t. Can. Pac. R. Co., 4 I. C. R. 274, 5 I. C. C. R. 612. 74 Rhode Island Egg & Butter Co. et al. v. L. S. & M. S. Ry. Co. et al., 6 I. C. R. 176. 75 I. C. C. V. C. H. & D. Ry. Co. (1905), 146 Fed. Rep. 559, affirmed in 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. Rep. 648. Eegulation — 11. §§ 68-71] INTERSTATE TRANSPORTATION. 163 an order directing changes in classification.^' There is no presumption in favor of one classification as against an- other.'^ § 68. Change of Glassificatioii. An attempt to reform a classification by a selection of iso- lated cases and single classes, and changing them without a study of the entire scheme, would be dangerous. The entire effect of a proposed change can only be known by compre- hending the relation of each particular article or class to the combined scheme. Therefore, a complainant asking a change in classification, with reference to a single group of articles, should be required to show a case of unjust discrimination or wrong to procure a change." Classification, being the basis of rate-making, is supposed to be stable, and no change should be permitted to be made upon slight evidence, inasmuch as a change in a few com- modities might disturb the whole classification scheme throughout an entire territory, with a resultant ill effect upon all commercial interests within its limits. § 69. Classification as a Means of Increasing Revenue. There are two ways in which carriers may increase their revenue : First, by increasing the rate eo nomine; second, by changing the classification.'* This latter course is sometimes resorted to. §70. Discrimination in Classification. See Section 316, post. § 71. Interpretation of Technical Terms as Used in Classification. Terms of art, or terms peculiar to a particular occupation or business used in classification, may sometimes require the 76 Schumacher Milling Co. v. C. R. I. & P. Ry. Co. et aL, 6 I. C- C. R. 61, 4 I. C. R. 373. " Ibid. '8 Fourteenth Annual Report of I. C. C. (1900). 163 CLASSIPICATION OF FREIGHT. [§§73,73 evidence of experts for their full understanding, and testi- mony of persons connected with transportation, as to the understanding of such terms in transportation circles, is not competent, for the plain reason that it is not the meaning as understood in transportation circles that is in question, but the meaning accepted and acted upon in the business in which the articles are dealt in and made use of. The classifi- cation is supposed to inform the persons engaged in that business in what classes the articles they handle are placed for transportation purposes, and it would fail to do this if, instead of employing terms of designation in the sense famil- iar to themselves, it made use of them in a sense fixed upon by persons engaged in an occupation altogether different, and which might, to an expert in their own business, be strange and misleading.^® § 72. Olassification of High Explosives. Some freight classifications provide that high explosives will be "taken only by special agreement." Carriers are prohibited from carrying any traffic except under tariffs pro- vided in the manner prescribed by law. It follows, therefore, that no traffic or transportation can be the subject of special agreement between carrier and shipper except as provided in Section 22 of the Act. If it is impracticable to classify high explosives in the classification, the statement must not be "taken only by special agreement," but must be "sub- ject to regulations and rates in tariffs of the individual car- rier," and each carrier must provide in its tariffs the rates and regulations applicable to such traffic.*" § 73. Classification Committees. The various classifications are administered by committees appointed by the railroads operating within the respective territories. There is a separate committee for each of the three leading classifications. The official classification is pro- 79 Hulburt V. L. S. & M. S. R. Co., 2 I. C. R. 81. 80 Rule 65, Tariff Circular 17-A. § 7-i] INTERSTATE TEAjSTSPOETATION. 164 mulgated from New York City, the Western classification from Chicago, III., and the Southern classification from At- lanta, Ga. The various classification questions are presented to these committees either at their home city or at some designated place of hearing. The various matters are voted on and passed by a majority vote, after which the classifica- tion is then published, either by way of supplement or a re- vision of the classification then in force. § 74. Uniform Classification. Tf A. In Genbeal. In the Eleventh Annual Report of the Interstate Commerce Commission to Congress the matter of a uniform classifica- tion was treated at considerable length, and it was stated that a single classification was regarded as essential to insure compliance with the law and to promote greater economy in the administration and conduct of transportation. The Com- mission also expressed the view that it was of interest and value to the carriers themselves. It was further pointed out that the present diversity, due to the various classifications, results in many discriminations and losses, and that there is no single step that could be taken by the carriers which would go so far to insure the es- tablishment of stable rates as the adoption of a single and comparatively fixed classification. The situation, as disclosed in the report referred to, of the lack of progress that had been made by the carriers in this connection in the preceding years, led the Commission to suggest that it be authorized and required to prepare such a classification, and to indorse the action which was proposed by a bill then pending in the Senate.*^ On reaching these conclusions, the Commission was not un- mindful of the work involved in making uniform the then existing classifications, and took occasion to say: "To es- tablish theoretical, and, to some extent, arbitrary classes, 81 Twenty-First Annual Report of I. C. C. (1907). 165 CLASSIFICATION OF FREIGHT. [§ 74 whether they number six or twenty-five, and to thereby pro- vide rates for all articles which yield the necessary revenues for the carriers, do full justice to local interests and the whole country, and satisfy the reasonable demands of ship- pers everywhere, is a task of great magnitude, and presents many obvious and serious difficulties; * * * jq the na- ture of the case there must be concessions and compromises, for it would be too much to expect that such a change in transportation methods could be effected without some fric- tion and some losses." It was also stated that "it is evi- dent the carriers themselves, by mutual concessions and through voluntary and harmonious action, can accomplish this reform with much less losses, embarrassment and fric- tion than will presumably result if Congress or some dele- gated tribunal establishes a classification for them."^^ The foregoing briefly sets forth the views of the Commis- sion as to the desirability of a uniform freight classification; it also indicates the extent of the undertaking, as well as the further view repeatedly expressed by the Commission, that the task is one which would be primarily left to the carriers to work out.*^ That a uniform classification is entirely practicable is demonstrated by the great advance which has already been made toward uniformity, and by the fact that such progress could not have been attained without the subordination of business and carrying interests in various localities to the commercial and transportation conveniences of the country at large. The accomplishment of uniform classification in- volves only a continuance of the work upon the line of ren- dering individual interest and local advantage subservient to the general welfare. That this will not require any real sacrifice or injury is proven' by the absence of any proposi- tion to retrace a single step in the work which has been done toward securing uniformity; on the contrary, all interested parties concede the great desirability, and most commercial interests urge the necessity of a single classification.** 82 Twenty-First Annual Report of I. C. C. (1907). 83 Ibid. 84 Eighth Annual Report of I. C. C. (1894). § 74] INTERSTATE TEANSPOETATION. 166 The governing considerations in the construction of a classification are: first, the number of classes which the classification shall contain, and second, how the different articles of commerce shall be distributed among these classes according to their character, weight, value, bulk, ease of transportation and risk of carriage. The rules for deter- mining similarity of freight articles in these particulars ought to be common to all sections, and not varied, as they now are, to accommodate carrying customs or transportation methods in different sections. One of the greatest benefits which will result from a uniform classification will be the evolution of admittedly just, general rules for determining the relative classification of commodities.'^ The Commission has reported to Congress that "It is in- teresting to note that definite steps have been taken by the carriers in different sections of the country, now operating under the three principal freight classifications, to establish a standard classification which shall take the place of exist- ing separate classifications. This work is now well in hand, the carriers from the different classification territories hav- ing assigned persons especially qualified for the work as their representatives on a committee which has been organ- ized embracing the combined interests. A committee of ex- ecutive officers of the same interests has also been formed, which will exercise supervision of the work to be performed by the committee first named. From the foregoing move- ment, as well as from the information which has reached the Commission, it is quite evident that the carriers are im- pressed with the desirability of harmonizing the conflicting features of the existing classifications for the convenience of the public, as well as to bring about uniformity in the pro- visions of a classification, which are essentially direct factors in the charges for transportation, as also the stability in the latter, which will necessarily follow under these arrange- ments ; and it may be said that, under the organization which has been perfected by the carriers, material progress may be expected in connection with this important matter."*^ 85 Eighth Annual Report of I. C. C. (1894). 88 Twenty-First Annual Report of I. C. C. (1907). 167 CLASSIFICATION OF FKEIGHT. [§§ 75, 76 On the contrary, however, while the nearest approximation to uniformity of classification is desirable, yet all agree that great caution should govern the attempts to bring it about. While in force, it at once might be greatly beneficial to one dealer, but another dealer might be ruined. The final adjust- ment of a uniform classification must necessarily be the ar- rangement of a number of compromises.'^ 11 B. Commission will recognize Efforts of Caeeiees to AEEivE AT Uniformity of Classification. When all the interstate carriers of the country, working through a committee selected by them for that purpose, are endeavoring to reach a uniform classification of freight, in- stead of having the various different and eonfiicting classi- fications, it being apparent to the Commission that such uni- form classification is a result that is greatly in the public interests, as well as in the interest of the carriers, and that has often been recommended by the Commission to the car- riers, the Commission will not embarrass, delay or retard the carriers in this work by instituting investigations of its own under the twelfth section of the Act to Kegulate Commerce, involving the classification of a few enumerated articles transported from and to an extended area of country, but, unless a formal complaint is made against the carriers in re- gard to such matter, and a hearing of it pressed to a deter- mination by the parties, the Commission will wait a reason- able time to see the result of the effort being made by the carriers in their efforts to arrive at a uniform classification.^' § 75. Publication, Posting and FUing Classifications. See Chapter 30, post. § 76. Classification Recognized by the Act to Regulate Commerce. Classification is recognized though not enjoined by the Act 87 Schumacher Milling Co. v. C. R. I. & P. R. Co. (1893), 4 I. C. R. 373; 6 I. C. C. R. 61. 88 McMiUan & Co. v. Western Classification Committee, 3 I. C. R. 282. § 77] INTERSTATE TRANSPORTATION. 168 to Regulate Commerce,^' which requires that the schedule of charges, ■ which every carrier must keep open to the public, "shall contain the classification of freight in force.'"" § 77. Jurisdiction of the Interstate Commerce Commission. Over Classification. tf a. poweft to order changes in classification of Commodities. The Act provides^' "that the Commission is authorized and empowered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in Section 13 of this Act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatso- ever, demanded, charged or collected by any common carrier or carriers, subject to the provisions of this Act, for the transportation of persons or property, as defined in the first section of this Act, or that any regulations or practices what- soever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminating, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maxi- mum to be charged; and what regulation or practice in re- spect to such transportation is just, fair and reasonable, to be thereafter followed; and to make an order that the car- rier shall cease and desist from such violation to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand or collect any rate, or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed." 89 Coxe Bros. & Co. v. L. V. R. Co., 3 I. C. R. 460; affirmed in Schu- maclier Milling Co. v. C. R. I. & P. R. Co. (1893), 6 I. C. C. R. 61, 4 I. C. R. 373. 90 Act, Section 6. 91 Act, Section 15. 169 CLASSIFICATION OE FREIGHT. [§ 77 Classification determines the relation of rates as between commodities, not the rate itself, and when a commodity is transferred from a higher to a lower class the revenues of the carrier are not necessarily diminished, since it may ad- vance the rates applicable to those classes.'^ An order of the Commission requiring a carrier to cease and desist from en- forcing a classification of specified articles higher than the classification which, upon the facts, it has found to be law- ful, is not prescribing a rate for the future."^ T[ B. AUTHOEITY OF COMMISSION TO CONSIDER THE EeASONABLE- NESS OF A New Classification throughout an Entire Territory. The Interstate Commerce Commission, in making an inves- tigation on the complaint of a shipper, has, in the public in- terest, the power, disembarrassed by any supposed admission contained in the statement of the complaint, to consider the whole subject, and the operation of the new classification complained of in the entire territory; also how far its going into effect would be just and reasonable, and would create preferences or engender discriminations, and whether it is in conformity with the requirements of the Act to Eegulate Commerce. And if it finds that the new classification dis- turbs the rate relations thereupon existing in a classification territory, and creates preferences, and engenders discrimina- tions, it may, in order to prevent such results, prohibit the future enforcement of the changed classification, and an or- der to that effect is within the power conferred by Congress on the Commission.** ^ C. Commission no Jurisdiction to establish a Classifica- tion FOR THE Future on Certain Commodities. An order of the Interstate Commerce Commission, based !>2Myer v. C. C. C. & St. L. Ry. Co. et al. (1901),. 9 I. C. C. R. 78; see also Myers, etc., v. Pa. Co. et al., 2 I. C. R. 403. 93 Ibid. 94 C. H.^ & D. Ry. Co. V. I. C. C. (1907), 206 U. S. 142, 51 L. ed. 995, 27 Sup. Ct. 648, affirming 146 Fed. Rep. 559. §§ 78j 79] INTERSTATE TEANSPOETATION. 170 on a findiug that the action of certain railroad companies, in changing their classification by advancing hay and straw, in carloads, from the sixth to the fifth class, was unlawful, com- manding them to cease and desist "from classifying hay and straw in carloads as fifth-class freight, and from charging and exacting fifth-class rates for the transportation of such com- modities in carload quantities," and requiring them "to whol- ly cease and desist * * * from failing and neglecting to properly classify hay and straw in carloads as sixth-class freight, * * * and from failing and neglecting to apply sixth-class rates for the transportation of hay and straw when shipped in carloads," is invalid as an attempt to fix rates for the future, and beyond the power of the Commis- sion.'^ 1[D. Additional Power recommended. President Taft, in his recent message to Congress, recom- mended that the Commission be fully empowered, beyond any question, to pass upon the classifications of commodities for purposes of fixing rates, in like manner as it may now do with respect to the maximum rates applicable to any trans- portation.°° § 78. Penalty for False Classification by Carrier. See Section 759, post. § 79. Penalty for False Classification by Shipper. See Section 759, post. 95 I. C. C. V. L. S. & M. S. Ry. Co. et al. (1905), 134 Fed. Rep. 942, denying petition to enforce order of Commission in National Hay Asso- ciation V. L. S. & M. S., 9 I. C. C. R. 264; decision affirmed in 202 U. S. 613, 50 L. ed. 1171, 26 Sup. Ct. Rep. 766. 98 Message to Congress, January 7, 1910. CHAPTER VII. FREIGHT RATES AND CHARGES. Section 80. Different Kinds of Rates defined and their Usage. 81. Duty of Carriers to initiate Rates. 82. Factors and Elements to be considered in Rate-Making. 83. Use of Classification in Rate-Making and Elements to be consid- ered in fixing the same. 84. Method of Advancing Rates. 85. Rates must be Just and Reasonable. 86. Reasonableness of Rates. 87. Comparison of Rates. 88. Rates must apply according to Movement. 89. Joint and Through Rates. 90. Rates are not nullified by Failure of Carrier to agree upon Divi- sions thereof. 91. Discrimination in Rates for Transportation of Freight. 92. Free and Reduced-Rate Transportation of Property. 93. Publication, Posting, and Filing of Freight Rates and Charges. 94. Published Rates not to be deviated from. 95. Offering, Granting, Giving, Soliciting, Accepting or Receiving any Rebate from Published Rate declared to be a Misdemeanor and Penalty therefor. 96. Maintenance of Rate reduced after Complaint filed with the Inter- state Commerce Commission. 97. Effect of Private Agreement between Carrier and Shipper concern- ing Charges for Transportation. 98. Performance of Transportation Service without Rates on file with the Interstate Commerce Commission. 99. Territorial Divisions of the United States for Rate-Making Pur- poses. 100. Construction of Rates from Percentage Basis Territory Points to Eastern Cities. 101. Jurisdiction of Interstate Commerce Commission over Freight Rates and Charges. 102. Restraint of Advances in Rates pending Proceedings before the Commission. 103. Recommendation that Carriers shall quote Rates to Shippers. 171 § 80] INTERSTATE TEANSPOETATION. 172 §80. Different kinds of Rates defined and their Usage. TfA. Local Eatb. Rates charged between points located upon the same road are designated as "local rates." The changes in such rates are, as a rule, less frequent than in joint rates.^ T[B. Joint Eate. The term "joint rate" is construed to mean a rate that extends over the lines of two or more carriers and that is made by joint agreement between such carriers.^ A joint rate is simply a through rate, every part of which has been made by express agreement between the carriers making the through route.^ 1[ C. Through Eate. A through rate is the rate applicable from the point of origin of a shipment to its destination. That rate may be (a) a local rate where both points are located upon the line of one road or a combination of the separately estab- lished local rates of such road, or, (b) a joint rate over a through route composed of two or more roads which have agreed to a joint rate,* or, (c) a combination of separately established rates applicable on through business over a through route which does not enjoy a joint rate.° A through route is a continuous line of railway formed by an arrange- ment express or implied, between connecting carriers. It must have a rate for every service it offers, and as the route is a new unit, so its rate for every service is a unit even though it be divided between the several carriers ar- 1 Sixteenth Annual Report of I. C. C. (1903). 2 Tariff Circular 17-A. 3 In the Matter of Through Routes and Through Rates (1907), 12 I. C. C. R. 164. 4 Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co. et al. (1908), 13 I. C. C. R. 154. 5 Ihid. l'i'3 FREIGHT RATES AND CHARGES. [§ 80 ranging themselves into the through route. "Where a through route has been formed the rate charged is a through rate.^ Tf D. Proportional Eates. A proportional rate is a proportion of a through rate which is lower between given points when the traffic has undergone transportation before reaching the first point, or is to be further transported after reaching the second, than the rates charged on like traffic which originates at one of such points and terminates at the other.'' It is a part of or a remainder of the through rate.^ 1[ E. Arbitraries. The term arbitrary is a technical term expressing a dif- ference which does not change with the through rate." A proportion of a through rate charged by a carrier upon a long haul of the freight, whether it be called an "arbitrary" or a "percentage," may well be considerably less than a local rate charged by the same carrier for the same dis- tance.^" T[ P. Differentials. Nothing is more certain concerning transportation in this country, either as to cost of service to the carrier or value of service to the shipper, than that as the mileage increases the total cost increases, but the cost per ton per mile de- creases. This is true, although it cannot be stated in exact mathematical terms. It follows, and with particular force as applied to grouped points of origin and grouped points 6 In the Matter of Through Routes and Through Rates (1907), 12 I. C. C. R. 164. ^ In the Matter of Form and Contents of Rate Schedules, 4 I. C. R. 701. 8 Kansas City Transportation Bureau, etc., v. A. T. & S. F. Ry. Co. et al., 16 I. C. C. R. 195. 9 Boston Chamber of Commerce v. L. S. & M. S. R. Co. et al. (1888), 1 I. C. C. R. 436; 1 I. C. R. 754. 10 New Orleans Cotton Exchange v. 111. Cent. Rd. Co. et al. (1890), 3 I. C. C. R. 534; 2 I. C. R. 777. § 80] INTEESTATE TRANSPOETATION. 174 of destination, that differentials either above or below the rates frona any given point become less and less important as distance of ultimate destination increases. Stated in other words, differentials diminish with increasing distance and vanish when the mileage on which the differential is based becomes inconsiderable in proportion to the total mileage from basing point to destination.^^ 1[ G. Class Eatbs. The making of railroad tariffs is simplified by classify- ing the great number of articles commonly offered for trans- portation and fixing rates for the different classes instead of making a separate rate for each commodity.^^ The various articles are grouped together in what is known as a classification which shows the respective classes in which they stand. These various classes are designated by either numbers or letters or a combination of both. The classification itself contains no rates ; to obtain the rate^ it is necessary to refer to the rate schedule or tariff which contains a graduated scale of rates to correspond with the groups shown in the classification. These rates are called class rates to distinguish them from commodity or special rates. The Commission is disposed to encourage the making of class rates wherever practicable, because of their tendency to uniformity and stability." If H. Commodity Eates. Commodity rates are usually, if not invariably lower than the class rates, being special rates presumably established on account of peculiar circumstances and conditions." "P. P. Williams Co. v. V. S. & P. Ry. et al. (1909), 16 I. C. C. R. 482. 12 First Annual Report of I. C. C. (1887); see La Crosse M. & J's Union v. C. M. & St. P. Ry. Co. et al. (1888), 1 I. C. C. R. 629, 2 I. C. R. 9. 13 Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 I. C. C. R. 30. " Indianapolis Prt. Bureau v. C. C. C. & St. L. Ry. Co. et al. (1909), 15 I. C. C. R. 367. lYS FKEI6HT EATES AND CHARGES. [§ 80 They are usually made upon coarse, cheap articles which are not of sufficient value to bear the numbered class rates. For example, they are made on iron articles, brick, lumber, clay, cement, stone, salt, coal, etc.^^ Commodity rates as a rule are not as stable as class rates. The only purpose of making a commodity rate is to take the commodity out of the classification; therefore, where there is both a class and a commodity rate contemporaneously in effect, the commodity rate is the lawful rate to be applied and if the carrier does not desire to apply it on all ship- ments it must be cancelled.^' The Commission discourages the establishment of com- modity rates on account of their lack of uniformity and stability. It is only in cases where it clearly appears that the inclusion of a given article in a class results in unrea- sonable charges, and a lower rate will not meet the demands of justice, that commodity rates are required to be estab- lished." In every instance where a commodity rate is named in a tariff upon a commodity and between specified points such commodity rate is the lawful rate and the only rate that may be used with relation to that traffic between those points, even though a class rate or some combination may make lower. The naming of a commodity rate on any ar- ticle or character of traffic takes such article or traffic out of the classification and out of the class rates between the points to which such commodity rate applies. '^^ ]\ I. Eates eor Mixed Shipments. Class rates or commodity rates may be made for specified mixed shipments and will be the lawful rates for such mix- tures, even though certain parts of the mixtures are covered by class or commodity rates when shipped separately.^" 15 New York Board of Trade & Transp. v. Pa. Rd. Co. (1891), 3 I. C. R. 417. leRule 84, Con. Rul Bui. No. 4 (June 9, 1908). " Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 I. C. C. R. 30. 18 Rule 7, TarifE Circular 17- A. 18 Ibid. § 80] INTEESTATE TRAJSTSPOETATIOI^. 176 T[J. Basing-point System oe Eate-Making. The system of rate making, commonly known as the "bas- ing point" or "trade center" system, which is prevalent throughout the South was generally operative at the time the Act to Regulate Commerce took effect and is still employed. This system is described as follows : Certain large cities, and towns situated on the coast, at interior river points, and at railroad junctions are called competitive and receive quite low rates on all interstate traffic; all other stations are called local and are charged much higher rates. The rates at local points are made by adding to the competitive rate at the nearest competitive point the local rate from that point. These local rates are ascertained upon a short distance mileage basis, frequently using the table established or approved by State Railroad Commissioners. The inter- mediate or local stations are "given the benefit" of what is called the lowest combination — -that is, if the rate to the competitive point, plus the local rate to the given point be- yond, exceeds the rate to the next competitive point plus the local rate back to the given point, the latter rate is taken.^" Competition between rival lines gives rise to these "bas- ing points" or "trade centers" and justifies the making of through rates to contiguous points by combining the through competitive rates with the noncompetitive rates to such points; and when not determined upon arbitrarily or with improper motives are not in violation of the Act to Regulate Commerce. ^^ 20 Harwell v. C. & W. R. R. Co. (1887), 1 I. C. C. R. 236; 1 I. C. R. 631; Davenport v. Southern Rwy. Co. et al. (1906), 11 I. C. C. R. 650; Board of Trade v. N. C. & St. L. Ry. Co. (1900), 8 I. C. C. R. 503. See Re L. & N. R. Co., 1 I. C. C. R. 84; 1 I. C. R. 278; Martin v. C. B. & Q. R. Co., 2 I. C. C. R. 46; 2 I. C. R. 32; Re Tariffs and Classifications of A. & W. P. R. R. Co., 3 I. C. C. R. 24; 2 I. C. R. 461. 21 I. C. C. V. Ala. Midland Ry. Co. et al. (1895), 69 Fed. Rep. 227; affirmed 74 Fed. Rep. 715; 21 C. C. A, 51; 168 U. S. 144; 18 Sup. Ct. Rep. 45; 42 L. ed. 414; L. & N. Rd. Co. v. Behlmer (1900), 175 U. S. 648; 20 Sup. Ct. Rep. 209; 44 L. ed. 310; Charlotte Shippers' Associa- tion V. Southern Ry. Co. et al. (1905), 11 I. C. C. R. 108. 177 FREIGHT RATES AND CHARGES. [§§81, 83 § 81. Duty of Carriers to initiate Rates. Under the law carriers must initiate rates, and so long as they do not abuse the right conferred upon them by statute, the Commission is not justified in penalizing them." Inasmuch as railways are authorized in establishing in the first instance their transportation charges, the presump- tion of right doing attaches to their acts in the establishment of those rates. ^^ § 82. Factors and Elements to be considered in Rate-Making. The following are the most important elements and factors to be considered in fixing a freight rate. See also considera- tions as to the "Reasonableness of Rates," Section 8G, post. Tf A. Value op Service to the Shipper as an Element. The value of the service to the article transported is an element of highest importance in fixing rates. ^* The value of the service to a shipper in a general sense is the ability to reach a market and make his commodity a subject of com- merce. In this sense the service is more valuable to a man who transports a thousand miles than to a man who trans- ports a hundr'ed miles, so that distance is an element of the value of service. In a more definite and accurate sense it consists in reaching a market at a profit, being in effect what the traffic will- bear to be remunerative to the producer or dealer. If the charge for service leaves no profit to the shipper the traffic is worthless and necessarily ceases.^^ In the case of coal for example, the intrinsic value of the service to a miner forty or fifty miles farther from the com- mon market is greater in proportion to its distance than to 22 Foster Lumber Co. v. A. T. & 8. F. Ry. Co. et al., 15 I. C. C. R. 56; National Hay Association v. L. S. & M. S. Ry. Co. et al., 9 I. C. C. R. 264. 23 Banner Milling Co. et al. v. N. Y. C. & H. R. Rd. Co. et al., 14 I. C. C. R. 398. 24 Thurber et al. v. N. Y. C. & H. R. Rd. Co. et al. (1890), 3 I. C. C. R. 473; 2 I. C. R. 742. 25 Imperial Coal Co. v. P. & L. E. Rd. Co. et al. (1889), 2 I. C. C R. 618; 2 I. C. R. 436. Eegulation — 12. § 82] INTERSTATE TRANSPORTATION. 178 the nearer mine, but relatively on account of cost of pro- duction, or a somewhat inferior quality, it may be of no greater. If the remote mine cannot sell at more profit the service has the same value for it and the traffic will bear no more.^' Rates should bear a fair and reasonable relation to the antecedent cost of the traffic as delivered to the carrier for transportation, and the average market price the freight will command; but the burden is upon a party invoking this rule to establish by satisfactory evidence such antecedent cost and market value.^' Where the market price yields but a scant return for the labor and expense of production the cost of transportation needs to be as moderate as may be consistent with justice to the carrier.^* See "Value of Service v. Cost of Service Principle," Seciion 62, Paragraph B, ante, for full considera- tion. 1[ B. Cost op Service to the Carrier. In fixing upon a rate or a rate adjustment a carrier may always consider the cost of service, and that factor should have great influence with the Commission in passing upon the reasonableness of the carrier's action.^' While, however, in determining rates to be charged for transportation, cost of service is one of the principal ele- ments to be considered, yet it is not to be considered alone as controlling.^" Such cost can be reached approximately but not accurately enough to make it controlling.^^ 28 Ibid. 2' Loud V. South Carolina Ry. Co. et al. (1892), 5 I. C. C. R. 529; 4 I. C. R. 205; citing Delaware State Grange v. N. Y. P. & N. Rd. Co. et al. (1891), 4 I. C. C. R. 588; 3 I. C. R. 554. 28 Newland et al. v. Northern Pacific Rd. Co. et al. (1893), 6 I. C. C. R. 131; 4 I. C. R. 474. 29 Business Men's League v. A. T. & S. F. Ry. Co. et al. (1902), 9 I. C. C. R. 318. 30 Glade Coal Co. v. B. & O. Rd. Co. (1904), 10 L C. C. R. 226; Thur- ber et al. v. N. Y. C. & H. R. R. Co. et al. (1890), 3 I. C. C. R. 473; 2 I. C. R. 742; Society of A. P. & O. H. v. U. S. Ex. Co., 12 I. C. C. R. 121. SI I. C. C. V. C. 6. W. Ry. Co. (1905), 141 Fed. Rep. 1003, affirmed 209 U. S. 108, 52 L. ed. 705, 28 Sup. Ct. 493. 179 FREIGHT RATES AND CHARGES. [§ 82 On that basis some articles, on account of relation of commercial value to cost, of service though furnishing a large volume of traffic, would not be carried at all, and others of high commercial value would have a very low rate, without increasing tonnage.^^ The public interests are not to be subordinated to those of carriers, and require proper regard for the value of the service in the apportionment of all charges upon trafflc.^^ T[ C. Value oe Service v. Cost of Service. See Section 62, Paragraph B, ante. 1[ D. Value of the CoMMeoiTT transported as an Element. The element of value of the article transported forms a proper consideration to be taken into account in the estab- lishment of a rate, since the greater the value the greater the carrier's liability as an insurer of the freight.^* While, however, value is a most important element to be considered in fixing rates, it plainly cannot be made an arbitrary standard independent of all other considerations.^' In determining what the relation should be between the rates charged for transporting two different freight articles value is often an important factor, but this is not alone be- cause of the greater risk connected with the transportation of the more valuable article. Improvements made during recent years in the road-beds and equipment of carriers have rendered the item of risk in many cases of little conse- quence. The value of the article is important, principally, because of its bearing upon the value to the shipper of the transportation service, and the value of the service is, and has always been considered one of the important ele- 32 Thurber et al. v. N. Y. C. & H. R. Rd. Co. et al. (1890), 3 I. C. C. R. 473, 2 I. C. R. 742. 33 Ibid. 34 Howell et al. v. N. Y. L. E. & W. R. Co., 2 I. C. R. 163. 35 Grain Shippers' Association, etc., v. 111. Cent. Rd. Co. et al., 8 I. C. C. R. 158. § 82] INTERSTATE TEANSPOETATION". 180 ments to be considered when fixing the rates to be charged for transportation.^" In establishing uniform class or commodity rates the car- rier can only be expected to take into account the estimated average value of shipments of the class or commodity to which the rates are applied.^^ When the carrier has established a reasonable rate for the transportation of a given commodity it is not believed it can be required to change that rate to accord with the differing values of the same commodity produced by dif- ferent shippers — in other words, to equalize natural busi- ness conditions. If this were so, that might be made to fluctuate not only to meet the value of the commodity, but the executive or business ability of each individual pro- ducer.^* IJE. EisK AS AK Element. To the extent that loss or damage is peculiar to a par- ticular kind of traffic, that fact may be properly recog- nized in fixing the rate.^^ While carriers may adjust their rates with a view to the hazards incident to the transpor- tation of certain classes of traffic it is not proper that they should advance those rates on account of damages which have accrued from their own neglect and which would not have accrued had the traffic been handled in a reasonably diligent and prudent manner.'"' The Supreme Court has held that the risk of injury, and 38 Chicago Live Stocli: Excliange v. C. G. W. Ry. Co. et al. (1905), 10 I. C. C. R. 428; see also Farrar v. Southern Ry. Co. et al. (1906), 11 I. C. C. R. 632; Anthony v. P. & R. Ry. Co. et al., 14 I. C. C. R. 581 (1908); Colorado Fuel & Iron Co. v. Southern Pacific Co. et al., 6 I. C. R. 488. 37 Duncan v. A. T. & S. F. Rd. Co. et al. (1893), 6 I. C. C. R. 85; 4 I. C. R. 385. 38 Hafley v. St. L. & S. F. Rd. Co. (1909), 15 I. C. C. R. 245. 39 New Orleans Live Stock Exchange v. T. & P. Rd. Co. (1904), 10 I. C. C. R. 327. 10 Cattle Raisers' Association v. M. K. & T. Ry. Co. et al. (1905), 11 I. C. C. R. 296; New Orleans Live Stock Exchange v. T. &. P. Rd Co., (1904), 10 I. C. C. R. 327. 181 FKBI6HT RATES AND CHAKGES. [§ 83 the large amount which the railway companies are called upon to pay out in damages for losses, may excuse a higher freight rate on live stock than on dressed meats and pack- ing house products.*^ Tl P. Volume of Traffic as an Element. It is well understood that freight rates should decline as a country develops and as business therefore increases. Rates are and have been lower in the very densely popu- lated portions of our country than, in those parts where population is less dense ; and this is because with the in- crease of traffic comes increased profit from the handling of that traffic.*' An immense volume of traffic is an argument for not only reasonable but comparatively low rates. *^ Therefore, the greater the tonnage of an article transported the lower should be the rate.** H G-. Weight and Bulk of Article as Elements. The weight and bulk of the goods transported and the convenience of transportation are proper elements to be con- sidered in fixing a rate.*^ Tl H. Distance as an Element. Distance is an important and ever present element in the problem of rates and in the absence of other influences it is a controlling factor.** However, mileage and the conse- " I. C. C. V. Chicago, Great Western Ry. Co. (1907), 209 U. S. 108; 52 L. ed. 705, 28 Sup. Ct. 493, affirming 141 Fed. Rep. 1003. *2 Re Class and Commodity Rates from St. Louis to Texas Common Points (1905), 11 I. C. C. R. 238. 43 Farrar v. Southern Ry. Co. et al. (1906), 11 I. C. C. R. 632. *i Tift V. Southern Ry. Co. et al. (1905), 10 I. C. C. R. 548; order of Commission enforced, 138 Fed. Rep. 753; decree enforced. Southern Ry. V. Tift, 206 U. S. 428; 51 L. ed. 1124, 27 Sup. Ct. Rep. 709; see also Central Yellow Pine Association v. 111. Cent. Rd. Co. et al. (1905), 10 I. C. C. R. 505. 45 1. C. C. V. C. G. W. Ry. Co. (1905), 141 Fed. Rep. 1003, affirmed 209 U. S. 108, 28 Sup. Ct. 493; Grain Shippers' Association of Northwestern Iowa V. 111. Cent. Rd. Co. et al., 8 I. C. C. R. 158. 46 Freight Bureau of Cincinnati v. C. N. O. & T. P. Ry. Co. et al. § 82] INTERSTATE TRANSPOBTATION. 182 quent cost of service regardless of other conditions cannot be made the controlling factor in determining the lawful- ness of rates. An inflexible rule to the contrary would be disastrous to the transportation business of the country, and would be more injurious to the public than to the rail- roads.*^ To permit distance to be a sole or controlling factor would be to introduce discrimination which would create chaotic commercial conditions under which irreparable injury would be done to individuals,, firms and commtmities without any compensating good resulting to the people or the commerce of the country as a whole.** It is because of the widely varying conditions of the country that the statute allows the railroads to adjust their charges to forces that are compulsory in character.*' It was not the intention of the Act to Regulate Commerce to establish equal mileage rates; they are not compulsory, nop always politic; one effect of such rates would be to put an end to competition as a factor in making rates, and it would work a revolution in the business of the country, which though it might be beneficial in some instances would be destructive in others. °'' The Commission has said: "While we are not to be understood as intimating that substantial differences in distance are not to be given consideration, we are not willing to accept the theory of rate construction (1897), 7 I. C. C. R. 181, citing Bau Claire Board of Trade v. C. M. & St. P. Ry. Co., 4 I. C. R. 65, 5 I. C. C. R. 265; Hill v. N. C. & St. L. R. Co., 6 I. C. C. R. 348; see also Freight Bureau of Cincinnati v. C. N. O. & T. P. Ry. Co. et al. (1894), 6 I. C. C. R. 195, 4 I. C. R. 192; New York Produce Exchange v. B. & O. Rd. Co. et al. (1898), 7 I. C. C. R. 612; McMorran et al. v. G. T. Rd. Co. et al., 2 I. C. R. 604. 47Lehmann, Higginson & Co. v. Southern Pacific Co. (1890), 3 I. C. R. 80; 4 I. C. C. R. 1. 48 Wilhoit V. M. K. & T. Ry. Co. (1907), 12 I. C. C. R. 139. *8Lehmann, Higginson & Co. v. Southern Pacific Co. (1890), 3 I. C. C. R. 80, 4 r. C. C. R. 1. 50 First Annual Report of I. C. C. 1887; see La Crosse M. & J's Union v. C. M. & St, P. Ry. Co. et al. (1888), 1 I. C. C. R. 629; 2 I. C. R. 9. 183 FREIGHT RATES AND CHARGES. [§ 83 based purely on distances. Such adjustment would be revolutionary and destructive to established commercial in- terests of enormous volume and value. "^^ While it must be conceded that there is an apparent jus- tice in the claim that rates should be apportioned to distance, it is not an absolute and unconditional right from which a departure may not be justified by other considerations. The public benefits, the greater volume of business of carriers warranting lower rates to all, and the forces of competition by other lines, may furnish reasons that outweigh a claim of right founded only on geographical location.^^ A rule of equal mileage rates over different roads would often prevent legitimate competition and frequently give a monopoly in transportation to the best and shortest road.^^ Where all the distances brought into comparison are con- siderable, and the difference between them is relatively small, there should be substantial similarity in the respective rates unless other modifying circumstances justify disparity.^* ^ I. Competition as a Factor. See Chapter 8, post. Tf J. Value of Eailroad Investment and Cost of Construc- tion, Maintenance and Operation of Eoad as Ele- ments to be considered in determining- the Eeason- ABLENESS OF EaTES. A carrier is entitled to earn a fair return upon the value of that which it employs for the public convenience and the service rendered ;^^ but, in earning such return, they must 51 Kansas City Transportation Bureau, etc., v. A. T. & S. F. Ry. Co. et al., 16 I. C. C. R. 195. 52 Imperial Coal Co. v. P. & L. E. Rd. Co. et al. (1889), 2 I. C. C. R. 618; 2 I. C. R. 436. 53 New Orleans Cotton Exchange v. C. N. O. & T. P. Ry. Co. (1888), 2 I. C. C. R. 375; 2 I. C. R. 289; New Orleans Cotton Exchange v. 111. Cent. Rd. Co. et al. (1890), 3 I. C. C. R. 534; 2 I. C. R. 777. 54 Eau Claire Board of Trade v. C. M. & St. P. Ry. Co. et al., 4 I. C. R. 65; 5 I. C. C. R. 265. 55 Smyth V. Ames (Nebraska Freight Rate Case), 169 U. S. 466; 42 § 82] INTERSTATE TKANSPOETATION. 184 operate their properties in aeeordanee with the provisions of the statute forbidding iinjust discriminations.^" It is not the policy of the Government, in the regulation of railways un- der the Interstate Commerce Law, to require them to carry on the transportation business at a loss, but that they shall be fairly dealt with, and, having due regard to public as well as private interests, they shall rather derive a reasonable profit from their operations. ^^ That railroad investments may be as secure as other prop- erty, the rates should be liberal until the earnings are suffi- ciently large for a fair return on the actual expenditure.^* Broadly speaking, railways are entitled to impose rates which will maintain their properties in condition to properly dis- charge the functions which they undertake and yield a fair return to their owners. ^^ The Commission has said:"" "In consideration of the fact that the public has permitted, and in some sense induced these companies to undertake this gztflsi-public duty, instead of discharging it itself, we are inclined to think that, where serious doubt exists, the railway should be given the benefit of that doubt." Rates cannot be said to be reasonable vrhich are not rea- sonably remunerative to the carrier, and rates which do not pay their full proportion of operating expenses, fixed charges and reasonable dividends, are not -per se or "in and of them- selves" reasonably remunerative."^ "While it may be that carriers, under certain exceptional conditions, are justified in accepting rates which pay any- L. ed. 819; 18 Sup. Ct. Rep. 418; cited In Central Yellow Pine Asso- ciation V. 111. Cent. Rd. Co. et al. (1905), 10 I. C. C. R. 505; Brabham et al. V. A. C. L. Rd. Co. (1905), 11 I. C. C. R. 464. 66 Brewer & Hanleiter v. L. & N. R. Co. (1897), 7 I. C. C. R. 224. 57 Johnson v. C. St. P. M. & O. Ry. Co. (1902), 9 I. C. C. R. 221. 58 Newland et al. v. Northern Pacific Rd. Co. et al. (1894), 6 I. C. C. R. 131; 4 I. C. R. 474. 59 Mayor, etc., v. A. T. & S. F. Ry. Co. et al. (1903), 9 I. C. C. R. 534. 60 Ibid. 61 Board of Trade v. N. C. & St. L. Ry. Co. et al. (1900), 8 I. C. C. R. 503. 185 FEEIGHT EATES AND CHAEGES. [§83 thing in excess of operating expenses or the cost of move- ment, yet as a general rule all traffic should be made, if pos- sible, to pay its due proportion of operating expenses, fixed charges and reasonable dividends."^ The United States Circuit Court has held that railroad property, properly built and properly managed, is entitled to earn an annual income of six (6) percent on its fair valua- tion, and that a statute fixing rates under which it cannot make such income is confiscatory and unconstitutional."' Neither Congress nor any legislative or administrative board acting by its authorization can competently establish rates for the transportation of property in interstate com- merce that will not admit of the carrier earning such com- pensation for the service rendered as, under all the circum- stances, is just and reasonable, since such action would de- prive it of its property without due process of law, and would be a taking of its property for public use without just com- pensation, in violation of the fifth amendment to the Federal Constitution."* However, the public have a right to be exempt from un- reasonable exactions, and the interest of the corporation is not the sole test of suitable rates."^ In "In re Proposed Advances in Freight Rates "'^^ the Com- mission said: "The question of the reasonableness of a rate, as controlled by the earnings of a railway, was considered by the Supreme Court of the United States in the Nebraska Bate Case."'' The railways there contended that they should be al- lowed to earn interest on their funded debts and a dividend «2 Board of Trade v. N. C. & St. L. R. Co., 8 I. C. C. R. 503. 63 St. Louis & S. F. Rd. Co. v. Hadley (1909), 168 Fed. Rep. 317. 6* M. K. & T. Rd. Co. V. I. C. C. (1908), 164 Fed. Rep. 645. 65 1. C. C. V. C. G. W. Ry. Co. (1905), 141 Fed. Rep. 1003, affirmed 209 XJ. S. 108, 28 Sup. Ct. 493; Grain Shippers' Association of Northwest Iowa V. 111. Cent. Rd. Co. et al., 8 I. C. C. R. 158. 66 Re Proposed Advance in Freight Rates (1903), 9 I. C. C. R. 373, affirmed in Central Yellow Pine Assn. v. 111. Cent. Rd. Co. et al. (1905), 10 I. C. C. R. 505. 67 Nebraska Rate Case, Smyth v. Ames, 169 U. S. 466; 42 L. ed. 819; 18 Sup. Ct. Rep. 418. § 82] INTERSTATE TRANSPOETATION. 186 upon their capital stock. This claim the court denied, say- ing that it could not be affirmed, as a matter of law, that a railroad was entitled to earn upon the basis of its capitaliza- tion. That case also established certain general principles upon which the reasonableness of rates from the revenue standpoint are to be decided. It is said, as a conclusion of the whole discussion, that the carrier is entitled to earn a 'fair return upon the value of that which it employs for the public convenience.' But what is the value of a railway? Does not that value depend almost wholly upon the rate which it is permitted to charge? If the rates upon a railway system are reduced without thereby stimulating the move- ment of traffic, the value of the property is diminished. If its rates are advanced without loss of traffic, the value of its property is increased. Stated in another way, the value of a railway depends upon what it can earn on the basis of a rea- sonable rate, and the reasonableness of a rate depends upon the return which it will yield upon the value of the prop- erty. "The Court pointed out in the above case certain elements which should be taken into account in determining the rea- sonableness of rates, and these were 'the original cost of con- struction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under partic- ular rates prescribed by statute, and the sum required to meet operating expenses.' The Court added that there might be other matters proper to be regarded in estimating the value of the property, and did not indicate the relative im- portance which was to be assigned to the various matters specified. It is plain that until there be fixed, either by legis- lative enactment or judicial interpretation, some definite basis for the valuation of railroad property and some limit up to which that property shall be allowed to earn upon that valuation, there can be no exact .determination of these questions. In the absi'nce of such a standard the tribunal, whether court or Commission, 187 FREIGHT RATES AND CHARGES. [§ 82 which is called upon to consider this matter can only do so upon the exercise of its best judgment." Expenditures for additions to construction and equipment, as expenditures for original construction and equipment, should be reimbursed by all of the traffic they accommodate during the period of their duration. Improvements, there- fore, that will last many years should not be charged wholly against the revenue of a single year.'* In "Central Yellow Pine Association v. Illinois Central R. Co.,"^^ the Commission said: "While payments for repairs, whether applied to permanent improvements or equipment, are properly chargeable to current annual operating ex- penses, this would not appear to be the case as to the im- provements or equipments themselves — ^the former being per- manent and the latter lasting for many years. The expendi- tures for permanent improvements and for equipment made in a single year may obviate the necessity for like expendi- tures or expenditures to the same extent for many years to come. * * * They should not, therefore, be taxed as part of the current or operating expenses of a single year, but should be, so far as practicable, and so far as rates exacted from the public are concerned, 'projected proportionately over the future.' " An increase in the cost of labor and in the price of rail- way material and supplies does not necessarily imply a de- crease in the net earnings of a carrier, or preclude the possi- bility even of an increase in its net earnings, due to an in- crease in the volume of its traffic or to a decrease in the ratio of its operating expenses to its operating revenues; nor is an increase in the cost of labor and material, accompanied by a decrease in the net revenues of a carrier, necessarily in- consistent with the possibility that its net earnings may still 68 111. Cent. Rd. Co. v. I. C. C. (1907), 206 U. S. 441; 51 L. ed. 1128, 27 Sup. Ct. Rep. 700. 88 Central Yellow Pine Assn. v. 111. Cent. Rd. Co. et al. (1905), 10 I. C. C. R. 505; Tift v. Southern Ry. Co. et al. (1905), 10 I. C. C. R. 548. § 82] INTERSTATE TKANSPOKTATION. 188 sufSce to afford it a fair return on the investment without an increase in its rate schedules.'" In determining what will be reasonable rates for the fu- ture the Commission may properly consider that, under the rates in effect, a large surplus has been accumulated in the past, but it should not make rates for the purpose of dis- tributing that surplus to the public.''^ Tf K. CaERIERS may NOT GRADUATE THEIR KaTES IN PROPORTION TO THE Prosperity of the Shipper. The right of a railroad company to fix its rates does not depend upon the question whether its patrons are making or losing money in their business.'^ Railroad companies have no right to graduate their charges in proportion to the prosperity which comes to industries whose products they transport.''^ The test of the reasonableness of a rate is not the amount of profit in the business of a shipper or a manufacturer, but whether the rate yields a reasonable compensation for the service rendered. If the prosperity of the manufacturer is to have a controlling influence, this would justify a higher rate on the traffic of the prosperous manufacturer than on that of one less prosperous. The right to participate in the prosperity of a shipper by raising rates is simply a license to the carrier to appropriate that prosperity, or, in other words, to transfer the shipper's legitimate profit in his business from the shipper to the carrier. The increased prosperity of shippers along the line of a railway enlarges the business of those shippers, and, as a consequence, both the tonnage of traffic which they receive in their business and which they 70 Shippers' & Receivers' Bureau of Newark v. N. Y. O. & W. Ry. Co., 15 I. C. C. R. 264. 71 City of Spokane et al. v. Nor. Pac. Ry. Co. et al. (1909), 15 I. C. C. R. 376. 72 Union Pacific Ry. Co. v. Goodridge (1893), 149 U. S. 680; 13 Sup. Ct. Rep. 970; 37 L. ed; 986. 73 Tift V. Southern Ry. Co. et al. (1905), 138 Fed. Rep. 753, enforc- ing order of Commission, 10 I. C. C. R. 548; decree affirmed. South- ern Ry. Co. v. Tift, 206 U. S. 428; 51 L. ed. 1124, 27 Sup. Ct. Rep. 709. 189 FREIGHT RATES AND CHARGES. [§ 82 ship to their customers. In this way the carrier necessarily and justly participates in, or is benefited by the prosperity of the shipper.'^* 1[ L. Eight of Eailroads to share in the general Pros- perity OF THE Country. The freight rate is not a commodity the price of which should ordinarily vary with the price of the articles trans- ported. A railroad may not advance its passenger fares simply because the people who ride are making more money. The question is, rather, whether the fare charged allows the carrier a fair return for its service. To the statement of this proposition exists a most impor- tant qualification. Some freight rates are largely a commer- cial proposition, and insofar they may properly vary with varying business conditions. For example, the price of the product of a particular factory may depend largely upon the price of the raw material, and in the cost of that material the item of transportation by rail may enter as an important part. When the price of the product falls, the price paid for the raw material must also decline, and this necessitates a drop in the freight rate. It may happen that the freight rate is a sufficiently important part in the cost to the con- sumer, so that a reduction will stimulate consumption. A railroad often makes, and very properly makes, a low rate in times of depression, for the purpose of enabling a manu- facturer to continue his business." To keep the factory in operation the railway may find it necessary to transport its raw material, its coal, its oil, and even its finished product, at a reduced rate. Whenever such depression has caused a reduction in rate, an advance may well follow the return of prosperity, but no such rule should 74 Central Yellow Pine Association v. 111. Cent. R. Co. et al. (1905), 10 I. C. C. R. 505; Tift et al. v. Southern R. Co. et al. (1905), 10 I. C. C. R. 548. 75 Re Rates from St. Louis to Texas Common Points (1905), 11 I. C. C. R. 238. § 82] INTERSTATE TRANSPORTATION. 190 be applied to eases where the reduction was not due to that cause.'* T[ M. Carriers no right to adjust Eates to preserve Commercial Profit to Manufacture. The theory that an adjustment of rates to preserve a com- mercial profit to manufacturers and jobbers in all cases, if accepted as a necessary rule under the law, and generally applied, would be far reaching in its consequence, and clothe common carriers with a new function, to equalize at their own expense the net results of business operations, without regard to location or the conditions of handling and carriage. In many instances the work of the carrier would have to be done at less than cost, and in some for nothing. Such a rule is not admissible, therefore, as one of general applica- tion." If the farmer cannot, in a given locality, raise and ship produce to market at a profit upon the existing freight rate, that is no reason why the carrier should be compelled to ac- cept less than a reasonable sum for its service.''* Conceding always that a carrier renders its services for hire, and is entitled to fair remuneration, which must neces- sarily include the cost of the service, a contribution to fixed charges, and something besides in the form of profit, the question arises, how large a carrier's margin of profit should be to render its charges reasonable to the patrons whom it serves. It is manifestly quite important on public grounds that the citizens who furnish a carrier with business from the pursuits in which they are engaged should not be op- pressed with rates that are disastrous to their pursuits, as that a carrier should not.be required to perform its service at a loss. The public good requires that benefits, as well as ^« Re Proposed Advances in Freight Rates (1903), 9 I. C. C. R. 382. " Thurber v. N. Y. C. & H. R. Rd. Co. et al. (1890), 3 I. C. C. R. 473; 2 I. C. R. 742. '8 Grain Shippers' Association v. 111. Cent. Rd. Co. et al. (1899), 8 I. C. C. R. 158; Buchanan v. Northern Pac. Rd. Co. (1891), 5 I. C. C. R. 7, 3 I. C. R. 655. 191 FREIGHT KATES AND CHARGES. [§ 82 burdens, shall be justly distributed, and that one interest shall not profit unduly at the expense and to the serious prejudice of another. This is the spirit of the law. A car- rier has the peculiar advantage of being able to apportion its aggregate expenses upon its whole business, but a grower of fruit, or of grain, or a manufacturer, cannot do so. The product he markets must alone bear the transportation ex- pense, and if this is excessive, and deprives him of any re- turn upon his investment, or from his labor or skill, his business is ruined and a public injury is sustained. The equitable rule doubtless is that rates should bear a fair and reasonable relation to the antecedent average cost of the traffic as delivered to the carrier for transportation, and the average market price the freight will command, or^ as it is termed, the commercial value of the property. Car- riers for the most part are believed to recognize this rule. A carrier cannot expect to absorb so much of the market price in its charges that the producer will be obliged to abandon his business. It is not meant by this that a carrier should transport freight at a loss to itself. If a market cannot be reached except at a loss with freight upon which only a just transportation rate is charged, it is no longer a legitimate article of commerce, and a carrier is under no duty to transport it at its own expense. But the principle intended to be expressed is that, if a rate is so high as to yield a large profit to a carrier and to deprive its patrons of any profit, and make their business ruinous, then the interests of its patrons and the general public interest as well requires the carrier to remit a portion of its profits, and accept a rate more equitable both to carrier and patron. This is indispensable to make a rate reasonable and just.^^ ^ N. Cost op Production to Manufacturer not Proper Consideration. Excess of manufacturing cost to a producer at one point over that of its competitors, in other localities, by reason of 79 Delaware State Grange v. N. Y. P. & N. Rd. Co. et al. (1891), 4 I. C. C. R. 588; 3 I. C. R. 554. § 82] INTERSTATE TEANSPOETATION. 193 inferior raw material and fuel, condition of its plant, cost of labor, or other like causes, is not to be considered in as- certaining the rightful relative adjustment of rates from such places.*" T[ 0. Adjustment of Kates to induce Movement op Traffic. If a carrier can profitably make a low rate for the purpose of obtaining traffic in existence, which would otherwise pass over a competing line, then it may profitably, under some circumstances, make a low rate for the purpose of bringing into existence ■ traffic which would not otherwise pass over any line.*^ It is undoubtedly to the interest of carriers to adjust their rates so as to induce the movement of traffic, and it follows, therefore, that they should keep in close touch with commer- cial conditions pertaining to sale of commodities and the needs of communities, and adjust their charges when prac- ticable within reasonable limitations, to meet those condi- tions and encourage sales and the movement of freight. While there is a mutual interest in sales and transportation, and it is proper that both seller and transporter should re- gard the same, the Commission, when called upon to de- termine what are just rates, must have due regard to the rights of the carriers as well as the interests of the shippers. Notwithstanding the fact that the movement of traffic is encouraged and increased when carriers adjust their charges to meet mercantile interests, yet it cannot be held to be a duty of the carriers, in adjusting their charges, to equalize the value of commodities in their final distribution. The decisions of the Commission must be based upon broad principles of justice, keeping in view the welfare of the pub- lic as well as the interests of carriers and shippers in the entire territory involved, and under the facts and circum- 80 Colorado Fuel & Iron Co. v. Southern Pacific Co. et al. (1895), 6 I. C. C. R. 488. 81 Grain Shippers' Association v. -111. Cent. Rd. Co. et al. (1890), 8 I. C. C. R. 158; Buchanan v. Northern Pac. Rd. Co. (1891), 5 I. C. C. R. 7. 3 I. C. R. 655. 193 FREIGHT UATES AND CHARGES. [§ 83 Stances of the case it should not be limited to those interests located in a restricted part of the producing territory.'^ H P. Low Eates to take care of Empty Car Movements. That a large movement of return empty cars may right- fully, under certain circumstances, justify a lower rate, is un- doubtedly true. "When articles of traffic do not move on ac- count of a rate which constitutes too great a burden, and the carrier is moving empty cars in the direction in which such articles would naturally move, at a lower rate, the carrier may be justified in carrying at a rate sufficient to bring about their movement, even at a rate barely remunerative. But no extra or additional charge in consequence can justi- fiably be put on other articles carried.*^^ In the Import Rate Case^^ the Supreme Court of the United States held that, where the acceptance of import traffic en- ables carriers to take advantage of the preponderance of empty car movement from ports of entry, any rates which the carrier may charge may be regarded as remunerative. If Q. Proportion as an Element in fixing Eates. In the Matter of Chicago, 8t. P. & K. C. R. Go?'' Chairman Cooley, in delivering the opinion of the Commission, said: "The Commission is of the opinion that the phrase, 'Eates reasonable in and of themselves,' which is often made use of in similar cases to the present, is very likely to be mislead- ing. It is a phrase which seems to imply that the particular rates may be considered by themselves as if they were and could be affected by no others. * * * But it is not the 82 Chicago Liumber & Coal Co. et al. v. Tioga S. B. Ry. Co. et al. (1909), 16 I. C. C. R. 323; Chickasaw Compress Co. v. G. C. & S. Ry. Co. et al. (1908), 13 I. C. C. R. 187. 82a Schumacher Milling Co. v. C. R. I. & P. Ry. Co. (1893), 6 I. C. C. R. 61; 4 I. C. R. 373. 83 Texas & Pacific Ry. Co. v. I. C. C. (1896), 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940. 84 In the Matter of Chicago, St. P. & K. C. R. Co., 2 I. C. C. R. 231; 2 I. C. R. 137, cited and affirmed in Martin v. L. & N. R. Co. (1903), 9 I. C. C. R. 581. Eegulation — 13. § 83] INTERSTATE TEANSPOETATION. 194 theory of the Aet to Regulate Commerce that the reason- ableness of rates can thus be separately and independently determined. On the contrary, it is assumed in the Aet that persons, corporations and localities are interested not only in the rates charged to them, but in the rates which are charged to others also and, while the Act does not require all rates to be proportional, it nevertheless makes the ele- ment of proportion an important one when the rates for any locality are to be determined. No rates can therefore be reasonable in and of themselves within the contemplation of the Act which are made regardless of proportion." ^ E. EeLATION BETWEEN THE AeTICLES TEANSPOETED. A very important factor in rate-making is the relation ex- isting between the articles transported. If the relation is re- mote, such as that between flour and silk, a change of a few cents per hundred pounds in the rates charged for trans- porting one of them may not affect traffic in the other; but if the relation is close, such as that between raw material on the one hand, and goods manufactured from that material on the other, a slight change in the adjustment of transpor- tation charges between the two articles may be sufficient to close manufacturing plants at some points and increase the output of plants located elsewhere. And it is because of this difference that some discriminations made by carriers are justifiable under certain circumstances.'^ Disadvantage to the shipper of one product cannot be predicated upon the charges for transporting another prod- uct differing essentially in character from the former and widely dissimilar in the demands which it supplies.*^ There is no relation between wheat and hay and straw, for in- stance, which would require equal rates. ^'^ 85 Chicago Live Stock Exchange v. C. G. W. Ry. Co. (1905), 10 I. C. C. R. 428; see Re Rates on Corn and Corn Products (1905), 11 I. C. C. R. 227. 86 Rice V. C. W. & R. Rd. Co. et al. (1892)j 5 I. C. C. R. 193; 3 I. C. B. 841. 87 1. C. C. V. L. S. & M. S. Ry. Co. (1905), 134 Fed. Rep 942. 195 FREIGHT HATES AND CHAEGBS. [§ 82 However, where articles are competitive in the same mar- ket, a fair and just relation should obtain in fixing the rates for the transportation of such articles. The rates on wheat, for instance, should not exceed the rate on flour, the manu- factured product.** There is no inflexible requirement that rates upon grain and the products of grain should be, under all circumstances, the same, but rather that carriers may, in just regard for their own interest or to meet special condi- tions, vary those rates within narrow limits. "When once the relation has been established, however, busi- ness developed, and money expended upon the strength of it, then the carrier cannot, in the absence of some sufficient reason, change that relation, nor would the Commission di- rect a change.*' The Commission has held that there is no transportation reason why different rates should be applied on fire brick, building brick and paving brick.'" Classification must be based upon a real distinction from a transportation stand- point. Aside from the difficulty in learning what use the brick were to be put tt) upon reaching their destination, the Commission held it cannot regard a classification as scien- tific, or a difference in rates as well based, which is alto- gether founded upon a distinction that has no transportation significance.'^ Such a differentiation, if permitted and ex- tended throughout the various classes of freight, would lead to an almost endless multiplication of rates, which could find no excuse save the use which might be made of the article transported.'^ The Commission has held that the rate on shingles should not exceed rates on lumber, and that the rates on lumber and box shooks should be the same. 88 Chamber of Commerce v. C. M. & St. P. Ry. Co. et al. (1898), 7 I. C. C. R. 481. 89 Howard Mills Co. v. Pac. Ry. Co. et al., 12 I. C. C. R. 259. 80 Stowe-Fuller Co. v. Pa. Co. (1907), 12 I. C. C. R. 216. »i Ibid. 92 Ibid. §§ SS-SS] INTERSTATE TEANSPOETATION. 19G §83. Use of Classification in Rate-Making and Elements to be Considered in Fixing Same. See Chapter 6, ante. § 84. Methods of Advancing Rates. There are two ways in which an advance in rates may be accomplished: First, by increasing the rate eo nomine; sec- ond, by changing the classification.^' §85. Rates must be Just and Reasonable. 11 A. Mandate of the Statute. The first section of the Act to Regulate Commerce after defining the term "transportation" to include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported, declares that all charges made for any service rendered or to be rendered in the transportation of property or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. This provision, in so far as it inhibits carriers from the imposition of unjust and unreasonable rates, is an express adoption by Congress of the principles of the common law."* Where a carrier promulgates a schedule of rates, it acts under the mandate of the Act and the common law that all rates must be fair and reasonable, and subject to the rule that it will be liable in an action for damages suffered by the shipper due to any unreasonable exaction."' 93 Fourteenth Annual Report of I. C. C. (1900) ; National Hay Asso- ciation V. L. S. & M. S. Rd. Co. et al. (1902), 9 I. C. C. R. 264. 94 Tift V. Southern Ry. Co. et al. (1903), 123 Fed. Rep. 789, affirmed 138 Fed. Rep. 753, 206 U. S. 428, 51 L. ed. 1124, 27 Sup. Ct. 709. 95 Southern Pacific Co. v. Colorado F. & I. Co. et al. (1900), 101 Fed. Rep. 779, 42 C. C. A. 12. 197 FKEIGHT KATES AND CHAKGES. [§ 85 The question of the reasonableness of a rate is one of fact.®' That is, the facts as they exist when it is sought to put such rate schedule into operation."^ If B. Meaning of the Teems "Just" and "Reasonable/' The words "reasonable" and "just," as used in the Stat- ute as applied to rates, are each relative terms. They do not mean to imply that the rates upon every railroad en- gaged in interstate commerce shall be the same or even about the same. The conditions and circumstances of each road surrounding the traffic and which enter into and con- trol the nature and character of the service performed by the carrier in the transportation of property, such as the cost of transportation, which involves volume or lightness of traffic, expenses of construction and of operation, compe- tition in some respects of carriers, rates made by shorter and competing lines to the same points of destination, space occupied by freight, value of freight and risk of carriage to carrier, all have to be considered in determining whether a given rate is "reasonable" and "just." Tested by these rules, a rate may be a very reasonable and just rate on one railroad and not reasonable and just on another. For example, a rate that would be reason- able and just on the New York Central & Hudson River Railroad may be so low that it would force the Minne- apolis & St. Louis Railway into bankruptcy in less than thirty days; and a rate that might be reasonable and just on the Minneapolis & St. Louis Railway might be so high that if attempted to be enforced on the New York Central & Hudson River Railroad for thirty days, it would practi- cally destroy the business of the latter. This diversity is most observable in the different portions of the country, as, for instance, between lines of railroad in the Southern States or the States of the far West, on the one hand, and the railroad lines of the Middle and Eastern States on the ^Illinois Central R. Co. v. I. C. C. (1907), 206 V. S. 441; 51 L. ed. 1128. 27 Sup. Ct. Rep. 700. 97 Smyth V. Ames (1897), 171 U. S. 361; 43 L. ed. 197, 18 Sup. Ct. § 86] INTERSTATE TRANSPORTATION. 198 other. Where, however, railroad lines reach the same com- moii points, are located in the same territory, and compete with each other, as well as with other lines, for the busi- ness of that territory, their rates are, in general, much the same, and this is one of the necessities of the situation. Even among the rail carriers where there is no opposing water competition there may be occasional differences in rates that will be found substantially justified by the dif- ferent circumstances and conditions under which the lines are operated.'* A reasonable rate, therefore, is one that will make just and fair return to the carrier when it is charged to all who are to pay it without unjust discrimination against any, and when the revenue it produces is subject to no im- proper reduction.'^ § 86. Reasonableness of Bates. T[ A. In General. The mandate of the Statute is that all rates must be just and reasonable, but how the reasonableness and justice of a rate are to be determined is not prescribed by the Statute, nor has any satisfactory test been evolved by transporta- tion experts. Conflicts about rates arise from conflicting interests of carriers and shippers. As carriers make their own rates, they have primary regard for their own interests, and often give less weight than they ought to the interests of those they serve. This is more frequently the case in the absence of competition. Under the stress of competi- tion, or sometimes for the purpose of developing business, rates that are equitable or even very low are likely to be made. But when a controversy arises between the public and a carrier, the question of the reasonable limit of a rate usually involves many considerations, and is often diffi- cult to determine. A rate that might be regarded as rea- 98 New Orleans Cotton Exchange v. Illinois Central Rd. Co. et al. (1890), 3 I. C. C. R. 534; 2 I. C. R. 777. 99 Fourth Annual Report of I. C. C. (1890). 199 FREIGHT RATES AND CHARGES. [§ 86 sonable and just by a producer and shipper, might, from a carrier's standpoint, be deemed extremely unreasonable and unjust, and so, conversely, a rate that a carrier might claim to be reasonable in itself, and that it might support with strong reasons based upon the cost of the service, the quantity of the business and the characteristics of its line of road, might exhaust the greater part of the proceeds of the producer's commodity, and be destructive to its in- terests. It is only stating a truism, therefore, to say there is no recognized test of a rate mutually reasonable for a carrier and for the producer of the traffic. The reasonableness of a rate must consequently be ascer- tained in every instance in which the question arises, by its relations both to the carrier and to the shipper, and by comparison with rates normally charged for like or similar service. ^"^ Great weight should be given to the opinion of expert witnesses; the effect of the rates on the growth and prosperity of the place to and from which they are charged; the cost of transportation as compared with the rates ; and the rates in force at numerous other places where the cir- cumstances are as nearly similar as may be to those pre- vailing at the point in question. ^°^ However, the following paragraphs of this section and the considerations under Section 82, ante, will show the various questions and factors to be considered and the questions not to be considered in determining the reasonableness of a rate. ^ B. Lower Eate for Carload than for Less than Carload Quantity. The transportation of freight at a lower rate in carload quantities than in less than carload quantities is not in con- travention of the Act to Eegulate Commerce. The circum- stances and conditions of the transportation in respect to the work done by the carrier and the revenue earned are 100 Delaware State Grange, etc., v. N. Y. P. & N. R. Co. et al. (1891), 3 I. C. R. 554; 4 I. C. C. R. 588. 101 1. C. C. V. Southern Ry. Co. (1902), 117 Fed. Rep. 741; affirmed, 122 Fed. Rep. 800; 60 C. C. A. 540. § 86] INTERSTATE TRANSPORTATION. 200 dissimilar, and may justify a reasonable difference in rate. The public interests are subserved by carload classifications of property that, on account of the volume transported to reach markets or supply the demands of trade through- out the country, legitimately or usually moves in such quan- tities."^ • The differential between the carload and less than car- load rate, however, must be reasonable, fair and just.^"^ While, however, it is lawful for the carrier to establish carload and less than carload rates on a particular com- modity, with a reasonable difference between the two rates and a reasonable carload minimum, the carrier cannot under the law be required to do so.^"* The Commission has hesitated to require the establish- ment of carload rates where none exist. If the normal unit of shipment is the carload, as in coal, ore, etc., it is of course a public benefit to secure for all the lower carload rate; but if the- accustomed traffic has a less unit than a carload and ordinary shipments are by the ton or bale, or hundredweight, the effect of a newer lower carload rate is to give an advantage to the large shipper — a discrimination the Commission has not encouraged even though its first result is to secure lower rates to the large shipper, less cost to the carrier, and, in its encouragement of trade, to increase the carrier's revenues.^"^ lozThurber v. N. Y. C. & H. R. Rd. Co. (1890), 2 I. C. R. 742; 3 I. C. C. R. 473; Blanton Duncan v. A. T. & S. F. R. Co. et al. (1893), 6 I. C. R. 85. 103 Haward Co. v. Pennsylvania Co. et al. (1890), 4 I. C. C. R. 212; 3 I. C. R. 257; New York Produce Exchange v. B. & O. Rd. Co. et al. (1898), 7 I. C. C. R. 612; Bromwell v. C. & C. M. Rd. Co. (1893), 5 I. C. C. R. 638; 4 I. C. R. 285; Scofield v. L. S. & M. S. Ry. Co. (1888), 2 I. C. C. R. 90; 2 I. C. R. 67; Business Men's League, etc., v. A. T. & S. F. Ry. Co. et al. (1902), 9 I. C. C. R. 318. 104 Planters' Compress Co. v. C. C. C. & St. L. Ry. Co. (1905), 11 I. C. C. R. 382. losKindel v. B. & O. Rd. Co. et al. (1905), 11 I. C. C. R. 495. 201 FREIGHT BATES AND CHARGES. [§86 1[ C. Minimum chaege foe teanspoetation of Less than Caeload Shipments. It is reasonable and proper that carriers should fix a mini- mum weight and charge for the transportation of less than carload shipments. This is justified by the necessary ex- pense and trouble attending the carriage of such shipments, large or small, which aside from the actual manual labor involved, are practically the same irrespective of the weight or bulk of the package.^"" For example, the Official Classifi- cation provides as follows: "No single package or small lot of freight of one class will be taken in less than 100 pouads at the first class rate and in no case will the charge for a single shipment be less than 25 cents." H D. Ant-quantitt Eates. The Commission decided that where carriers have in effect a uniform rate per 100 pounds for any quantity, which rate applies uniformly to all shippers, a different rate ap- plied to carloads from that applied to less than carloads will not be ordered, especially when such differential will have a tendency to increase the rate on less than carloads and further to cut off consumers and small dealers from purchasing at distant markets in less than carload lots.^"'' 1[B. Train-load Eates. It is not always enough that open rates are made and strictly observed, even if fair and reasonable for the serv- ice rendered; nor is it sufficient in every case that a rela- tion of rates, just from the carrier's standpoint, is main- tained as between shipments of the same article by different methods or in different quantities. For example, a carload rate lower than the less than carload rates, where the dif- ference is not too great, would ordinarily be lawful; but a 106 Wrigley v. C. C. C. & St. L. Rd. Co. et al. (1905), 10 I. C. C. R. 412. 107 Duncan & Co. et al. v. N. C. & St. L. Ry. Co. et al., 16 I. C. C. R. 590. § 86] INTERSTATE TEANSPOETATION. 202 still lower rate for shipments of a hundred or a thousand carloads, though duly published and impartially applied, would be wholly indefensible.^"* A lower rate for a train load than for a carload is, in effect, allowing a lower rate upon a condition which only few shippers can comply with, and is therefore regarded as unlawful.^"" H F. HiGHEE EaTES when SHIPMENTS ARE TENDERED WITH OTHER THAN UNIFORM BiLL OP LADING. A carrier's tariff provided higher rates on shipments not tendered with a uniform bill of lading: Held, That the tender of a shipment accompanied by other than a uniform bill of lading may not be taken by the carrier as evidence of the shipper's election to use the higher rate. The carrier must direct his attention to the fact that a lower rate is available under a uniform bill of lading.^" If G. Eeleased Eates. See "Limitation of Carrier's Liability,'' Chapter 20, post. |[ H. Lower Eates for a Longer than for a Shorter Haul over the Same Line in the Same Direction, the Shorter being included within the Longer Distance. See "Long-and-Short-Haul Clause and Belief from Operation Thereof," Chapter 8, post. T[ I. Carriers demanding a Higher Eate when Freight is SHIPPED Collect than when Prepaid. It is fundamental that there can be but one lawful rate between two points, and the law takes no cognizance what- ever of the distinction formerly made by the express com- panies between prepaid and collect shipments. It is a car- 108 Carr v. Northern Pacific Ry. Co. (1901), 9 I. C. C. R. 1. 108 Planters' Compress Co. v. C. C. C. & St. L. Ry. Co. et al. (1905), 11 I. C. C. R. 382; Paine Bros. & Co. v. L. V. Rd. Co. et al. (1897), 7 I. I. C. R. 218. 110 Rule 160, Con. Rul. Bui. No. 4 (April 6, 1909). 303 FREIGHT BATES AND CHARGES. [§ 86 rier's right as a public service corporation to demand pre- payment on all shipments, and it may not distinguish be- tween persons who pay in advance and those who do not. The carrier may waive its right to demand prepayment, and accept a shipment with the understanding that it will col- lect the charges upon delivery to the consignee; but if it does not collect such charges from the consignee, it must look to the consignor for payment. The collection of the lawful rate is a duty imposed on the carrier by law, and it is given a lien upon the property transported to enforce the payment of the charges. To accept a shipment without pre- payment is no more than to extend credit to the consignor, and this within reasonable and nondiscriminatory limits it may do. But neither a railroad, an express company nor other public carrier may lawfully make rates based upon the waiver of its right to collect charges at the time it re- ceives a shipment. For, if there is any risk in the carrying of the shipment without payment of charges, the carrier must, in fulfillment of its own duty under the law, resolve that risk against the consignor and collect in advance. Bates may not be based on a temporary waiver of a carrier's right, nor may the reasonableness of a rate turn upon the assump- tion that some will pay the lawful charges and others will not, so long as the law gives the right to collect the rate in advance and demands that the carrier shall, without fail, collect its published eharges.^^^ 11 J. Through Eates which exceed Combination of Local Kates Prima Facie Unreasonable. The Commission has several times said that, ordinarily, a through rate ought not to exceed the sum of the locals.^^^ 111 Boise Commercial Club v. Adams Express Co. et al. (1909), 17 I. C. C. R. 115; Railroad Commission of Florida v. S. F. & W. Ry. Co. et al. (1891), 5 I. C. C. R. 13; 3 I. C. R. 688; Boston Fruit & Produce Exchange v. N. Y. N. E. Rd. Co. et al. (1891), 5 I. C. R. 1; 3 1. C. R. 604. 112 Montgomery Freight Bureau v. W. Ry. of Alabama (1908), 14 I. 0. C. R. 150; Railroad and Warehouse Commissioners v. Eureka Springs Ry. Co., 7 I. C. C. R. 69; Hilton Lumber Co. v. W. & W. Rd. § 86] INTEKSTATE TRANSPORTATION. 204 It has also announced that it will view a through rate that is in excess of the sum of the local rates between the same points as prima facie unreasonable, and that, if called upon to pass upon such a case under formal complaint, will place the burden of proof upon the carriers to defend the reason- ableness of such rate.^^^ This, however, does not assume that there may not be in- stances in which a through rate, higher than the sum of the locals between the same points, will be found reasonable.^" Neither does it furnish to carriers or to shippers any license to depart from the rates and terms of tariffs lawfully ap- plicable to shipments. A specific through rate is the lawful rate upon a through shipment, even though same combina- tion might make lower. The higher rate may not be re- duced except by lawful amendment to tariff, and carrier may not charge the higher through rate upon one shipment and the lower combination rate upon another shipment of the same kind between the same points at the same time.^^' It should be remembered that the Commission has not ruled that a joint through rate exceeding the sum of the locals is conclusively presumed to be unreasonable. It has simply placed upon the defendant carriers the burden of showing such a joint through rate to be reasonable. There are instances in which circumstances and conditions might justify the higher through rate, and it is for the carriers to demonstrate their potency in the establishment of a through rate that exceeds the sum of the locals. The practical effect of an order that the through rate shall not exceed the sum of the locals would place in the hands of the carriers the power to nullify such order. They have the right to ad- vance the separate locals. And, should they do so, they Co., 9 I. C. C. R. 17; CofEeyville Vitrified Brick & Tile Co. v. St. L. & S. F. R. R. Co., 12 I. C. C. R. 498. lis Morgan et al. v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 525; Rule 56, Tariff Circular 17-A; Hardenberg, Dolson & Gray v.. Northern Pac. Ry. Co. (1908), 14 I. C. C. R. 579. ii* Morgan et al. v. M. K. & T. Ry. Co., supra. 115 Ibid. 205 FREIGHT EATES AND CHARGES. [§ 8G would then, under such an order, have the right to increase the joint through rate, and the order would be of no ef- fect."« T[ K. Through Eatb Lower than Combination of Locals. In general, joint through rates are lower than the sum of the locals between two points, and obviously there can very seldom be any transportation reason why such should not be the case.^" Through rates, higher than combination of local charges, are extremely rare in railroad transportation, and those which have been brought to the attention of the Com- mission have .only been approved when occasioned by ex- traordinary and peculiar circumstances. They have not been justified in any case by the fact of water or other competi- tion at points of junction between the connecting carriers. The reason is plain. Ordinarily, through shipments are car- ried by connecting roads at rates less in amount than those of the combined locals, and, primarily, this is so because the necessities of commerce require it, and because it is com- monly less expensive to the carriers to transport through traf- fic than to perform the services involved in two local ship- ments to and from some intermediate station; and it is hard- ly conceivable that the carriers' cost of through carriage can in any case be greater than that of supplying the two distinct local services.^^* A through rate is not necessarily reasonable, however, be- cause it does not exceed the aggregate of two reasonable local rates. ^^* lie Michigan Buggy Co. v. G. R. & I. Ry. Co. (1909), 15 I.. C. C. R. 299. 117 Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co., 13 I. C. C. R. 154, affirmed in Flaccus Glass Co. v. C. C. C. & St. L. Ry. Co. et al., 14 I. C. C. R. 333; St. L. Hay & Grain Co. v. M. & O. Rd. Co. et al. (1905), 11 I. C. C. R. 90; same v. 111. Cent. Rd. Co. (1905), 11 I. C. C. R. 486; N. Y. N. H. & H. Rd. Co. v. Piatt, 7 I. C. C. R. 323. Coffey ville Brick & T. Co. v. St. Louis & S. F. Rd. Co. et al. (1907), 12 I. C. C. R. 498; Savannali Bureau of Frt. & Trnsp. v. C. & S. Ry. Co. (1898), 7 I. C. C. R. 601. 118 Hilton Lumber Co. v. W. & W. Rd. Co., 9 I. C.C. R. 17. 119 Minneapolis & St. L. Rd. Co. v. State of Minnesota, ex rel Rail- road & Warehouse Commission (1901), 186 U. S. 257; 46 L. ed. 1151, 22 Sup. Ct. 900. § 86] INTERSTATE TRANSPOKTATION. 306 As stated above, that the through rate should not. exceed the sum of the locals is a doctrine well established, but it does not follow as a corollary that the sum of the locals should always be reduced to equal the through rate.^^" The Commission has stated that it knows of no law, either common or statutory, under which the jobber is entitled to distribute commodities under as low or lower total freight rates as the through rates from point of origin to the point of destination.^^^ TfL. Higher Eate over Eoutb composed oe Two or More Carriers than over a Single Line. It has long been established, and recognized as just and reasonable, to allow two or more roads making up a through line to charge somewhat more for the through transporta- tion, the earnings on which must be divided among all, than would be deemed reasonable and sufQcient for the transpor- tation if performed wholly by a single road.^^^ T[ M. Where a Change in Eates will disturb Eelative Eates in a Large Extent of Territory. Where a change in rates is demanded which will appar- ently throw into confusion an adjustment of rates over a large section of country which are not claimed to be unrea- sonable of themselves, and in respect to which any modifi- cation upon one line will result in general disturbance and friction among a large number of shippers and carriers of the same product, there should be a clear right to the relief under some direct provision of the law in order to justify the Commission in requiring it."^ Under such circumstances the 120 Williams & Co. v. V. S. & P. Ry. et al., 16 I. C. C. R. 482; Crews V. R. & D. Rd. Co. (1888), 1 I. C. R. 703. 121 Ibid. 122 Loup Creek Colliery Co. v. Virginian Ry. Co. et al. (1907), 12 I. C. C. R. 471. 123 Rend V. C. & M. V. Ry. Co. (1889), 2 I. C. C. R. 540; 2 I. C. R. 313; R. & W. V. W. N. Y. & P. Rd. Co. (1888), 2 I. C. C. R. 389; 2 I. C. R. 298; Freight Bureau of Cinti. v. C. N. O. & T. P. Ry. Co. et al. (1897), 7 I. C. C. R. 180. 207 FREIGHT RATES AND CHARGES. [§ 86 Commission will decline to order such reduction until the matter has been fully presented and has received the fullest consideration.^^* Tf N. Bates Established by Concert of Action between Carriers. In determining an issue of unreasonableness of a rate, the Commission should inquire into the circumstances under which the rate was made."= Where rates at a particular point are unduly influenced by an agreement or combination among carriers to suppress competition at that point, such fact may properly be considered in determining the question of undue discrimination and the reasonableness per se of the rates at such possible competitive point.^^" While the question whether such concert of action is in violation of the "Sherman Antitrust Act" is for determina- tion only by the Courts, it is the province and duty of the Commission, when the reasonableness of rates is in issue be- fore it, to consider whether the advanced rates resulted from untrammeled competition, or were fixed by concert of action or combination of the carriers. ^^^ If it finds that it was not the product of free competition, but was the result of an agreement, this fact would rob the rate of the presumption of reasonableness which might otherwise attach, and should be considered by the Commission in determining whether the 124 Dallas Freight Bureau v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 427. 125 China & Japan Trading Co. v. Georgia R. R. Co. et al. (1907), 12 I. C. C. R. 236. This is a fair import of what the Commission has held in the following cases: In Matters of Advances in Rates from St. Louis to Texas Points, 11 I. C. C. R. 238; Cattle Raisers' Asso. of Texas v. M. K. & T. Ry. Co. et al., 11 I. C. C. R. 296; Tift v. Southern Ry. Co. et al., 10 I. C. C. R. 548; Central Yellow Pine Assn. v. 111. Cent. Rd. Co. et al., 10 I. C. R. 505. 126 I. C. C. V. L. & N. Rd. Co. (1903), 190 U. S. 273; 47 L. ed. 1047, 23 Sup. Ct. Rep. 687. 127 Tift v. Southern Ry. Co. et al. (1905), 10 I. C. C. R. 548; see also Central Yellow Pine Association v. 111. Cent. Rd. Co. et al., 10 I. C. C. R. 505. § 86] INTERSTATE TRANSPORTATION. 308 advance was justifiable;'^* but if, after giving due weight to that and all other circumstances, the Commission is still of the opinion that the rate in effect is not too high, the mere fact that it was the product of an unlawful combination will not justify it in setting such rate aside.^?^ The existence of an agreement between carriers to ad- vance rates is not conclusive that the rates as advanced are unreasonable.'^" H 0. Higher Eates on Perishable Traffic. Where the shipper renders special service in the trans- portation of perishable traffic, such as rapid transit and prompt delivery, a higher rate than the carriage of ordinary freight is warranted.'^' Perishable freight requiring care, refrigeration and expe- dition in transit and carriage in heavy refrigerator cars, is necessarily transported at greater cost to the carrier than that involved in the transportation of ordinary freight."^ The handling of perishable fruit, for instance, is probably the severest test of railroad transportation, so far as care, at- tention and expense are involved. The very essence of such transportation is expedition in addition to the speed re- quired; there niust be provided a special car, loaded with ice, which has to be renewed when the transportation is be- yond certain fixed distances, or if, for any cause, there is de- lay. It is of vital importance to the growers of perishable products and the further development of the business that 128 China & Japan Trading Co. v. Georgia R. R. Co., etc., supra. 129 Ibid. ISO Warren Mfg. Co. v. Southern Ry. Co. et al. (1907), 12 I. C. C. R. 381; Enterprise Mfg. Co. v. Georgia Rd. Co. et al. (1907), 12 I. C. C. R. 451; Chicago Lumber & Coal Co. et al. v. Tioga S. E. Ry. Co. et al. (1909), 16 I. C. C. R. 323; Board of Mayor and Aldermen of Bristol v. V. & S. W. Ry. Co. et al. (1909), 15 I. C. C. R. 453. 131 Loud V. South Carolina Ry. Co. et al. (1892), 5 I. C. C. R. 529; 4 I. C. R. 205; Delaware State Grange v. N. Y. P. & N. Rd. Co. et al. (1891), 4 I. C. R. 588; Boston F. & P. Exchange v. N. Y. & N. E. Rd. Co. et al. (1891), 4 I. C. C. R. 664; 3 I. C. R. 493. 132 Consolidated Forwarding Co. v. Southern Pacific Co. et al. (1905), 10 I. C. C. R. 590. 209 FREIGHT KATES AND CHARGES. [§ 86 nothiBg should be done which would have a tendency to de- crease the efficiency of the service. ^'^ ^ P. Low Eates for Low-Grade Traffic. It is to the interest of the carriers, as well as the public, that their rates be low enough, if not below a remunerative point, to permit the general movement and distribution of those commodities in general demand in large quantities for construction, building, manufacturing and other purposes. Eeasonable freedom of such movement and distribution stimu- lates the growth and development of the country, and there- by promotes all interests. The general prevalence of such lower rates on that character of freight is due to the car- riers' usual policy of making rates that will fairly permit the traffic to move, if of such value that it will bear reasonable charges. '^^^ In the carriage of great staples, which supply an enor- mous business, and which in market value and actual cost of transportation are among the cheapest articles of commerce, rates yielding only moderate profit to the carrier are both necessary and justifiable.^^^ For example, in the ease of grain, it is to the interest of both grain growers and con- sumers that the rates on that commodity from the grain fields in the West to the points of consumption should be as low as possible ;"° lumber is an inexpensive freight, and only a few other commodities furnish to carriers so large a tonnage; the rates thereon should therefore be relatively low;^" coal rates are usually highly competitive, and this 133 Ozark Fruit Growers Association v. St. L. & S. F. Rd. Co. et al., 16 I. C. C. R. 106 (1909). 134 Colorado Fuel & Iron Co. v. Southern Pacific Co. et al. (1895), 6 I. C. C, R. 488. 135 In Re Food Products Investigation (1890), 4 I. C. C. R. 48; 3 I. C. R. 93; National Hay Association v. L. S. & M. S. Ry. Co. et al. (1902), 9 I. C. C. R. 264. 136 Re Alleged Unlawful Rates and Practices in Transportation of Grain (1897), 7 I. C. C. R. 240. 13T Central Yellow Pine Association v. 111. Cent. Rd. Co. et al. (1905), 10 I. C. C. R. 505. Eegulatio N — 14. § 86] ISTTEKSTATE TRANSPORTATION. 310 fact, together with its desirability as traffic and the large quantities moved, have produced on the average a very low rate;^^* salt is an article which demands and receives low rates ;^^° soap is an article used by everybody, and of neces- sity, therefore, should be transported at a low rate;^*" for the same reasons pig-iron, iron articles, cement, stone, grain products, etc., require and are given relatively low com- modity rates. T[ Q. Low Eates eoe Caeeiage of Long-Haul Teafeic. The necessity for making concessions to long-haul traffic in the ease of articles whose value, in proportion to bulk or weight, is small, and especially in that of the necessaries of life, which are handled in large quantities, and in the supply of which the most distant countries compete, has long been conceded wherever railroads exist. The household goods of immigrants to West have been carried for them at very low rates, and the results of their agriculture have afterwards been taken for seaboard and European markets in recogni- tion of the general principle that the traffic must not be charged rates beyond what it can bear.^*^ This is a just and sound principle when justly applied; and the country may be said not only to have acquiesced in its recognition, but to have desired and urged its application in a great variety of cases. Any suggestion that it was meant by the statute to abrogate it would scarcely be plausible, especially since, when not misapplied, it can harm no one, but may be, and often is, of great and manifest ad- vantage in enabling distant sections of the country to come into closer commercial relations, and to exchange, to their mutual benefit, their dissimilar productions, and to compete i38Denison Light & Power Co. v. M. K. & T. Ry. Co. (1904), 10 I. C. R. R. 337. 139 Anthony Salt Co. v. Mo. Pac. Ry. Co. et al. (1892), 5 I. C. C. R. 299; 4 I. C. R. 33. 140 Procter & Gamble Co. v. C. H. & D. Rd. Co. et al. (1890), 4 I. C. C. R. 87; 3 I. C. R. 131. 1" Re Southern Railway & Steamship Association (1887), 1 I. g. C. R. 31; 1 I. C. R. 278. 211 FEEIGHT EATES AND CHARGES. [§86 with each other in those which are similar. However, there is a plain limit to the application of the principle that prop- erty is to be carried at rates it will bear; and the limit is reached when the rates charged are so low that further re- duction would necessitate an increase of the charges on other traffic in order to make up to the carrier such loss as the re- duction causes."^ U E. Careiee seeving Undeveloped Teeeitory entitled to HiGiTEK Bates. A carrier serving a defendant upon a new and undevel- oped territory, and unable to earn any profit for its owners, may charge higher rates than would be reasonable under different conditions. ^*^ ^ S. Eates Established to Develop a Pahticdlae Industry. Where a rate has been established and maintained for a considerable period for the purpose of developing a particu- lar industry, and with full knowledge that the industry could not be developed without it, and where, under the influence of such rate, large amounts of money have been invested in property, the value of which must be seriously impaired by an advance of the rate, that fact is an important considera- tion in passing upon the reasonableness of such advance.^" U T. Desire oe Caeeiee to Keep Certain Teaefic upon its Line. Rates established by a common carrier under the influence of a desire to keep upon its line a material for which the road itself has use, or to keep the price thereof low for its own advantage, cannot be justified either in morals or in law. Every party who produces such a material is entitled to sell it when he wishes, in the best available market, and 142 Re Southern R. & S. S. Assn., 1 I. C. C. R. 31, 1 I. C. R. 278. 113 Memphis Freight Bureau v. Ft. S. & W. Rd. Co. (1907), 13 I. C. C. R. 1. 144 Western Oregon Lhr. Mfrs. Assn. v. Southern Pacific Co. et al., 14 I. C. C. R. 61. § 86] INTERSTATE TKANSPOETATION. 312 the common carrier has no right to prevent his doing so by- disproportionate or unreasonable rates. ^*^ l[ir. Tonnage Shipped by a Paeticular Firm. While the amount shipped by a concern has little or no bearing on the question of the reasonableness of the rates, it is of some significance where the shipments reach sub- stantial proportions.'^*" 1[ V. Eatbs fixed according to the Usage op the Commodity OR "Business Motive" of the Shipper are Unrea- sonable AND Unlawful. The concurrent existence of two separate and distinct rates on the same commodity is condemned when the traffic moves over the same route in the same direction, between the same points, and the carriers, by their published tariffs, assume to charge one rate or the other according to the ultimate use to which the commodity is to be put.'*'' Tariffs which apply rates upon commodities according to their use or the "business motive" of the shipper are im- proper. The carrier has no right to attempt to dictate the uses to which commodities transported by it shall be put. The duty of a common carrier is to transport commodities at the tariff rates and on equal conditions for all.'*' TIW. Equalizing Eates of Different Carriers. There is no provision in the law requiring that rates shall be the same over all lines between the same points.'*' A carrier with a long route, is not obliged, as a matter of law, to meet the rates of a short-line competition.'^" Neither is 145 Reynolds v. W. N. Y. & P. R. Co. et al. 1 I. C. R. 685. i«Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 r. C. C. R. 30. 147 Ft. Smith Frt. Bureau v. St. L. & S. F. Rd. Co. et al., 13 I. C. C. R. 651; Duncan v. A. T. & S. F. Ry. Co. et al., 6 I. C. R. 85. 148 Ibid. 149 Marley & Son v. N. & W. Ry. Co., 11 I. C. C. R. 616. 150 Commercial Coal Co. v. B. & 0. Rd. Co. et al., 15 I. C. C. R. 11; Johnson v. St. L. & S. F. Rd. Co. (1907), 12 I. C. C. R. 73. 313 FREIGHT KATES AND CHARGES. [§ 8G a carrier via a long route obliged, as a matter of law, to reduce its rate because its short-line competitor reduces a rate which has been the same via both routes.^^^ A carrier is free to fix its rates without reference to those of other carriers competing for business from the same or different points of supply .^'^^ A rate is not unreasonable simply because a lower rate is in effect via the lines of other carriers/^^ The existence of a lower rate by the short line, while having some bearing, does not of itself indicate the unreasonableness of a higher rate by the route actually used.^^* The carriers in the through route over which the traffic moves would be guilty of a penal offense under the statute, if they should rebate the difference between their published rate for the longer haul and the published rate of other carriers over the shorter route. ^^^ Whatever may have been the practice in the past of "meet- ing the rate," the Act, and the decisions of the Commission interpreting its provisions, unmistakably lay down the doc- trine that tariffs must now be adhered to.^^° ^ X. Lower Eates eoe Inland Movement of Import or Export Traffic than for Domestic Traffic. See Section 368, post. ^ T[ Y. Imported Merchandise not Entitled to Inland Pro- portional Eate when the Transportation from the Poet is Purely Local. An importer of flax, after unloading a cargo at the port, sold it, and the purchaser some months later sold a part 151 Commercial Coal Co. v. B. & 0. R. Co., 15 I. C. C. R. 11; Johnson V. St. L. & S. F. R. Co., 12 I. C. C. R. 73. 152 Allen & Lewis v. Oregon Rd. & Nav. Co. et al. (1899), 98 Fed. Rep. 16; s. c. 106 Fed. Rep. 265. 153 South Canon Coal Co. v. C. & S. Ry. Co. et al. (1909), 17 I. C. C. R. 286. 154 Marley & Son v. N. & W. Ry. Co., 11 I. C. C. R. 616. 155 Ibid. i56Menefee Lumber Co. v. T. & P. Ry. Co. et al. (1909), 15 L C. C. R. 49. § 86] INTERSTATE TRANSPOETATION. 214 of the original shipment to a manufacturing company, by which it was shipped to a point in the middle West at the regular local rate of the carrier that took the movement. At the time there was in effect an inland proportional rate from the port of destination: Held, That the movement from the port was a separate and distinct transaction upon., which the local rate was the only lawfully applicable rate.^" It should be noted in this ease that the shipment lost its identity as an import after having been held in warehouse by the purchaser at port of entry. If Z. Graduated Eates. The general rule contemplated by the Statute of equitably graduated charges on like traffic with reasonable reference to the amount of the service is just in itself, and commonly most beneficial both to the carriers and to the public, and is only to be departed from when justified by exceptional conditions, and in such instances no longer than the condi- tions require. ^^* The Commission in considering rates to Pacific Coast Ter- minals from points east of the Missouri River stated that nothing in the Act would prevent transcontinental lines from putting into effect, if they saw fit, a system of graded rates so that Chicago and other intermediate points would take lower rates to the Pacific Coast than points on the Atlantic seaboard.^^* UAA. Group or "Blanket" Eates. In fhe transportation of low-grade commodities that move in bulk and in large quantities, such as coal, lumber, grain, etc., it is a long established custom to group or "blanket" a number of stations or a large expanse of territory. Such rate adjustment, necessarily, to some extent, disregards dis- 157 Rule 170, Con. Rul. Bui. No. 4 (April 13, 1909). 158 Lehmann, Hlgginson & Co. v. Southern Pacific Co. (1890), 3 I. C. R. 80; 4 I. C. C. R. 1. 159 Business Men's League of St. Louis v. A. T. & S. F. Ry. Co. et al. (1902), 9 I. C. C. R. 318. 315 l-'EEIGHT RATES AND CHARGES. [§ 86 tance. In the case of grain moving from points of origin, if strictly distance rates were applied, it is apparent that a certain distance from a market that is prepared to purchase the surplus the rate would be prohibitive.^"" Therefore, in all cases of "blanket" or group rates there is, of necessity, more or less disi-egard of distance and varying degrees of inequality, but such inequalities are not of necessity un- reasonable or unjust when the situation is viewed from every standpoint, taking into account all interests. Absolute and demonstrable equality in all respects is not attainable. Reasonable approximation is the most that can be expected ordinarily. Though not always the case, these grouping or blanket arrangements in many cases, especially with reference to particular commodities, are of great ad- vantage to the public and without serious injustice to any interests. ^"^ In the interest of the shipping and consuming public a carrier has the undoubted right to consider within proper limitations the conditions under which industries on its lines in the same general territory with other industries are com- pelled to conduct their business. One of these conditions may be a handicap of higher rates on raw material. Groups in rate-making are, therefore, made largely with respect of business as distinguished from transportation conditions. In other words, grouping is done with a reasonable disregard to commercial conditions.^"^ For instance, as coal is one of the principal necessaries of life, it would not be in the public interest to enhance the cost of consumer^ by compelling a higher rate from more distant points in a particular coal district, to which a group rate is applied, for the purpose of increasing the profits of 160 Kansas City Transportation Bureau, etc., v. A. T. & S. P. Ry. Co. et al. (1909), 16 I. C. C. R. 195. 161 Chicago Libr. & Coal Co. et al. v. Tioga S. B. Ry. Co. et al. (1909), 16 I. C. C. R. 323. 162 Avery Mfg. Co. et al. v. A. T. & S. F. Ry. Co, et al. (1909) , 16 I. C. C. R. 20; Imperial Coal Co. v. P. & L. E. Rd. Co. et al. (1889), 2 I. C. C. R. 618; 2 I. C. R. 436. § 86] INTERSTATE TRANSPORTATION. 216 miners more favorably situated with respect to a common market/"^ Of course, the propriety of the application of a group rate is open to challenge in every case, and every case must be justified upon its own facts and peculiar cir- cumstances.^^* To make such rates illegal, however, they must operate to subject some shipper, locality or species of traffic to undue or unreasonable disadvantage.^*^ "When the difference in the transportation expense from the various parts of a given district is considerable and substantial group rates should not be encouraged. ^"^ IJBB. Eate-Per-Ton-Per-Mile Eule. The rule that cost of carriage is usually in inverse ratio to distance and that therefore the charge per ton per mile should diminish with distance is not a requirement of the Statute, and is subject to qualifications and exceptions.^" It is usually applied in cases of continuous carriage over long through routes, but even then special conditions, such as volume of business, character of route and necessary revenue from the business done so as not to perform the service at the expense of traffic at other points, may ma- terially qualify it.^** It is not inconsistent with the law, how- ever, for a carrier, within reasonable limits, to accept less per ton per mile upon long hauls than upon short hauls, 163 Imperial Coal Co. v. P. & L. E. Rd. Co. et al. (1889), 2 I. C. C. R. 618; 2 I. C. R. 436. 164 Howell V. N. Y. L. E. & W. Rd. Co. et al. (1888), 2 I. C. C. R. 272; 2 I. C. R. 162; Imperial Coal Co. v. P. & L. E. Rd. Co., supra. 165 Hilton Lumber Co. v. W. & W. Rd. Co. et al. (1901), 9 I. C. C. R. 17; La Crosse M. & J's Union v. C. M. & St. P. Ry. Co. et al. (1888), 1 I. C. C. R. 629; 2 I. C. R. 9; Lippman & Co. v. 111. Cent. Rd. Co. (1889), 2 I. C. C. R. 584; 2 I. C. R. 414. i66Newland et al. v. Northern Pacific Rd. Co. et al. (1894), 6 I. C. C. R. 131; 4 I. C. R. 474. 167 Manufacturers' and Jobbers' Union, etc., v. M. & St. L. R. Co. et al. (1890), 4 I. C. C. R. 79; 3 I. C. R. 115; affirmed in Hilton Lbr. v. W. & W. Rd. Co. et al. (1901), 9 I. C. C. R. 17. 168 Manufacturers' and Jobbers' Union, etc., v. M. &. St. L. R. Co. et al. (1890), 4 I. C. C. R. 79; 3 I. C. R. 115. ^1''' FREIGHT BATES AND CHAEGES. [§86 and to widen the disparity between such rates as the differ- ence in distance increases. ^"^ The rate-per-ton-per-mile rule brings rates down to the narrowest point of scrutiny, and for that purpose is valuable, but it excludes consideration of other circumstances and conditions which enter into the making of rates, no matter how compulsory, or imperious they may be, and it cannot, therefore, be accepted as controlling in determining the rea- sonableness of rates/'" • The rate-per-ton-per-mile rule is not the generally ac- cepted basis for making rates in this country, so far at least as interstate movements are concerned. ^'^ Tl CC. CO]SrSIDERATIONS DETERMINING THE EeASONABLENESS OF Express Eates. The rates made by express companies upon small packages in competition with the United States mail are not to be taken as standards by which to determine the reasonableness of their rates upon larger packages. ^'- Most express matter is moved upon what is termed a mer- chandise rate. For the purpose of determining the rate ap- plicable to packages of different size, what is known as a "graduate" scale is employed, this being a tabulation show- ing the rates applicable to a package of a given size be- tween two points when the base rate or the rate per 100 pounds is known. "^ The fact that express rates in and out of a particular business locality are higher than those in and out of a com- peting locality from a common source of supply is not of the same importance as in the ease of freight rates, since 169 Colorado Fuel & Iron Co. v. Southern Pacific Co. et al. (1895), 6 I. C. C. R. 488. 170 Cedar Hill Coal & Coke Co. v. C. & S. Ry. Co. et al. (1909), 16 I. C. C. R. 629; 2 I. C. R. 9; Lippman & Co. v. 111. Cent. Rd. Co. (1889), C. R. 217; Business Men's Association, etc., v. C. St. P. M. & O. Rd. Co., 2 I. C. R. 41; 2 I. C. C. R. 52. 171 Bulte Milling Co. v. C. & A. R. Co. (1909), 15 I. C. C. R. 351. i72Kindel v. Adams Express Co. et al. (1908), 13 I. C. C. R. 475. 173 Ibid. § 86] INTERSTATE TRANSPORTATION. 218 the wholesaler ordinarily brings his merchandise in by freight and also distributes it by freight/^* Within certain limits express rates and freight rates com- pete, and to that extent express rates should be established with reference to freight rates.' '^ The main object of an express service is expedition and express rates should not be so low as to attract business which might properly go by freight and thereby congest and interfere Jsvith service by express. ^^^ In determining the reasonableness of express rates but little reference can be had to the value of the property employed, since the connection between the value of the service and the cost of the property employed in rendering it is but slight."' In determining whether express charges are reasonable, inquiry must be had into the character of the business, the amount of capital required for its conduct, the hazard in- volved, and, especially, the profits which the express com- pany is then making under the rates attacked.^'' A comparison of express rates in one locality with those in another is of much greater value than a similar com- parison between freight rates, since the character of the business and the conditions under which it is transacted are more clearly the same.'^'" 1[ DD. Piling Schedule op Bates with Commission Eaises NO Presumption of Keasonableness. No presumption of law that a freight rate upon a partic- ular commodity is reasonably low exists because such rate has been duly published and filed by the carrier with the Interstate Commerce Commission.^*" i74Kmdel v. Adams Exp. Co. (1908), 13 I. C. C. R. 475. "5 Ibid. 178 Ibid. 177 Ibid. 178 Ibid. 179 Ibid. 180 111. Cent. Rd. Co. v. I. C. C. (1907), 206 U. S. 441; 51 L. ed. 112S; 27 Sup. Ct. 700; San Bernardino Board of Trade v. A. T. & S. F. Ry. Co. et al. (1890), 3 I. C. R. 138; 4 I. C. C. R. 104. 219 FREIGHT RATES AND CHARGES. [§ 86 ^ EE. Enforcement op Eules and Regulations not Shown IN Published Tariff as affecting the Eeasonable- ness of the Eate. The sixth section of the Act to Regulate Commerce re- quires that tariffs shall "state separately all terminal charges, storage charges, icing charges, and all other charges which" the Commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and charges, or the value of the service rendered to the shipper or consignee." The main purpose of this provision is to prevent unjust discrimination between shippers by making it possible for them to readily ascertain from the tariffs just what aggre- gate charges are to be assessed, and the law is specific to the effect that carriers shall not demand "a greater or less or different compensation than the rates and charges speci- fied in the tariff filed and in effect at the time."^^^ In the case of Voorhees v. A. C. L. Rd. Co., et al.,^^^ the complainant shipped six carloads of cabbage from St. An- drews, S. C, to New York City, for the transportation of which the defendants charged their less than carload rate, because the initial carrier performed the loading service; Held, That these shipments having been offered in carload quantities were entitled to the published carload rate, and in the absence of specific tariff provisions no additional charge could be lawfully collected from complainant to cover the loading service performed by the railroad com- pany.^'^ A rule providing who shall load and unload the freight transported (i. e., whether the shipper or carrier), directly affects the rate, since it determines the value of the service to the shipper."* 181 Voorhees v. A. C. L. Rd. Co. et al. (1909), 16 I. C. C. R. 42. 182 Ibid. 183 Ibid. 184 Wholesale Fruit & Produce Association v. A. T. & S. F. Ry. Co. et al. (1908), 14 I. C. C. R. 410. § 86] INTERSTATE TEANSPOETATION. 230 H PF. Long-Continued Maintenance of a Lowee Eai k Eaises NO Presumption of Law that a NEWLT-BsTAiiLisHED Eate is Unreasonable. In the ease of Memphis Cotton Oil Co. v. Illinois Central Railroad Company/^^ counsel for the complainant contended "that the long maintenance of certain rates proclaims such rates as voluntary and compensatory and shifts the burden of proof to the carrier to justify the increase. The Com- mission said: "This argument, when analyzed, seems in substance to be that an increase in long-established rates raises a presumption of law that the advanced rates are un- reasonable. That doctrine, however, appears to have been disposed of as unsound in Interstate Commerce Commission v. Chicago, Great Western Railway Company,'^^^ and had never been fully recognized by this Commission. While something of that general import is to be found in its earlier decisions, the later decisions make it clear that it never became an established doctrine with us." In the case above referred to, the United States Supreme Court, held, that there is no presumption of wrong arising from a change of rates by a carrier; that the presumption of honest intent and right conduct attends the action of carriers as well as it does the action of other corporations or individuals in their transactions in like; that undoubtedly when rates are changed, the carrier making the change must, when properly called upon, be able to give a good reason therefor; but that the mere fact that rates have been raised carries with it no presumption that it was not rightfully done ; that those presumptions of good faith and integrity which have been recognized for ages as attending human action have not been overthrown by any legislation in respect to common carriers. The Commission in Memphis Cotton Oil Co. v. Illinois Central 185 Memphis Cotton Oil Co. v. Illinois Central Rd. Co. et al. (1909), 17 I. C. C. R. 313. 186 I. c. C. V. Chicago, Great Western Ry. Co. (1907), 209 U. S. 108; 52 L. ed. 705, 28 Sup. Ct. 493, affirming 141 Fed. Rep. 1003. 321 FKBIGHT EATES AND CHARGES. [§ 86 Bd. Co., supra, stated further: "The reasonableness of a rate must, of necessity, depend upon the conditions surround- ing the trailc at the time it moves. The length of the haul, the competition to be met, the cost of the service, the value of the service, the density or volume of the tonnage, as well as the general transportation conditions then existing, are factors that have a more or less definite relation to the rate than a carrier may reasonably demand for a transpor- tation service. And these factors, except possibly the length of the haul, the grades, and other transportation conditions, are in their nature neither permanent nor fixed, but neces- sarily change with the general economic panorama. No pre- sumption of law, therefore, can arise against an advance of rates simply because a lower rate previously existed. "An advance in a long-established rate at once suggests the propriety of an inquiry of the carrier for a statement of its reasons for making the advance. But in making its ex- planation, if we correctly understand the meaning of the Court in the case above cited, the carrier is not under the necessity of overcoming the technical weight and force of a presumption of law that the previously existing lower rate was a reasonable rate. The long continuance of a lower rate may be said to raise a presumption of fact that the advanced rate is unreasonable. But this is in a sense no presumption at all, for it cannot carry us beyond the actual tendency of the fact itself to produce that belief in the mind of the investigator. The fact that the lower rate has long remained undisturbed has strong probative value. Considered merely as evidence, such a rate history, in the absence of some explanation that satisfies the judgment of the propriety and need of an increase in rates, would ordinarily have great force. But in every case we must consider and weigh all the other facts of record before arriving at the conclu- sion that the increase in rates was unreasonable and there- fore unlawful." § 87] INTERSTATE TEANSPOKTATION. 323 H GG. Presumption where Long-Established Eate is Ad- vanced FOE A Short Period and then Eeduced to the Former Basis. Where carriers voluntarily maintain a rate between cer- tain points for a long period of time the presumption is that such rate is reasonable, and where a long-established rate is raised for a short period and then voluntarily re- duced to the former point the presumption is that the ad- vanced rate is unreasonable, but this presumption may be overcome by proof to the contrary."'' § 87. Comparison of Rates. T[A. Necessity eor Comparison oe Eates. A rate can seldom be considered "in and of itself." It must be taken almost invariably in relation to and in con- nection with other rates. The freight rates of this country, both upon different com.modities and between different locali- ties are largely interdependent, and it is the fact that they do not bear a proper relation to one another, rather than the fact that they are absolutely too low or too high, which most often gives occasion for complaint. '^^^ % B. Comparison of Eates on Different Lines in Different Sections of the Country. While the revenue per ton per mile over other routes on other lines and to other destinations is often suggestive in arriving at a proper estimate of the reasonableness of a rate over a route complained of, it is by no means conclu- sive.^'" It is a matter of common knowledge that freight rates are controlled by various and varying conditions, and therefore the rates established in one section of the country 1S7 Sunderland Brothers Co. v. P. M. R. R. Co. et al. (1909), 16 I. C. C. R. 450. 188 Tileston Milling Co. v. Northern Pacific Ry. Co. (1899), 8 I. C. C. R. 346. 189 Dallas Freight Bureau v. G. C. & S. F. Ry. Co. et al. (1907), 12 I. C. C. R. 223. 223 FREIGHT KATES AND CHARGES. [§ 87 furnish no reliable standard by which to measure the reason- ableness of rates in another section where dissimilar con- ditions prevail.^"" Such rates therefore can have no evi- dentiary bearing unless substantial similarity in transporta- tion conditions is shown.^^"^ Varying conditions existing on different lines must, of necessity, justify differences in rates for hauls of the same distance. The real question in any such complaint is the reasonableness of the particular rate on the particular line between the particular points in ques- tion.^"- In testing such a rate the rates on the same or ad- jacent lines in the immediate territory where the same condi- tions exist are of niuch greater significance and afford a much more accurate basis for action by the Commission.^"' ^ C Comparison of Eates on Different Branches or Lines OF Same Carrier. Where the reasonableness of rates is in question, compari- son may be made with the rates on different branches or lines of the same carrier; the value of the comparison being dependent in all cases upon the degree of similarity of cir- cumstances and conditions attending the transportation for which the rates compared are charged.^"* 1[D. Comparison of Eates on Eival Lines. Transportation rates in force on lines of rival carriers are 190 Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 I. C. C. R. 30; I. C. C. v. L. & N. Rd. Co. (1896), 73 Fed. Rep. 409; Cattle Raisers' Assn. v. M. K. & T. Ry. Co. et al. (1905), 11 I. C. C. R. 296; New Orleans Cotton Exchange v. 111. Cent. Rd. Co. et al. (1890), 3 I. C. C. R. 534; 2 I. C. C. R. 777; Business Men's Assn. v. C. St. P. M. & O. Ry. Co. (1888), 2 I. C. C. R. 52; 2 I. C. R. 41; Dallas Freight Bureau v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 427. 191 Evans v. N. P. Ry. Co. et al. (1896), 6 I. C. C. R. 520. 192 Dallas Freight Bureau v. G. C. & S. F. Ry. Co. et al. (1907), 12 I. C. C. R. 223. 193 Ibid. , 194 prt. Bureau of Cincinnati v. C. N. O. & T. P. Ry. Co. et al. (1894), 6 I. C. C. R. 195; 4 I. C. R. 592; Morrell v. Union Pacific Ry. Co. (1893), 6 I. C. C. R. 121; 4 I. C. R. 469. § 87] INTERSTATE TKANSPOKTATION. 234 entitled to consideration in connection with the question of reasonable charges for transportation of services rendered under like conditions. ^'^ While, however, it is competent to compare rates and dis- tances on different roads in dealing with an alleged un- reasonable rate these are to be considered in connection with the many other factors that enter into the adjustment of rates.^"' 1[ E. Division op Through Eate no Criterion by which to Measure Local Eates. A part of a through rate may legally be less than the local rate between the same or less distant points. ^^' "Where two connecting carriers unite by putting in force a joint through tariff between two points, such joint tariff is not the standard by which the reasonableness of the local tariff is to be determined.^'* The division of a through rate between carriers in a line of transportation furnishes no fair or just criterion by which to measure the intermediate local rates on the same line of transportation. ^'' The Supreme Court has held that the fact that a disparity i95Morrell v. Union Pacific Ry. Co. et al. (1893), 6 I. C. C. R. 121; 4 I. C. R. 469. iM Cannon v. M. & O. Rd. Co. (1906), 11 I. C. C. R. 537. 197 Parsons v. C. & N. W. Ry. Co., 167 U. S. 447; 17 Sup. Ct. Rep. 887; 42 L. ed. 231, affirming 63 Fed. Rep. 903; 11 C. C. A. 489; Tozer v. United States (1892), 52 Fed. Rep. 917. 198 Parsons v. C. & N. W. Ry. Co. (1894), 63 Fed. Rep. 903; 11 C. C. A. 489; 27 U. S. App. 394, affirmed 167 U. S. 447; 17 Sup. Ct. Rep. 887; 42 L. ed. 231; C. & N. W. Ry. Co. v. Osborne (1892), 52 Fed. Rep. 912; 3 C. C. A. 347. i99McMorran et al. v. Grand Trunk Ry. Co. et al. (1889), 3 I. C. C. R. 252; 2 1. C. R. 604; Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 I. C. C. R. 30; Board of Trade, etc., v. N. & W. Ry. Co. (1909), 16 I. C. C. R. 12; Omaha Cooperage Co. v. N. C. & St. L. Ry. Co. et al. (1907), 12 I. C. C. R. 250; New Orleans Cotton Ex- change V. 111. Cent. Rd. Co. et al. (1890), 3 I. C. C. R. 534; , 2 I. C. R. 777; C. & N. W. Ry. Co. v. Osborne (1892), 52 Fed. Rep. 912; 3 C. C. A. 347, reversing 48 Fed. Rep. 49; U. S. v. Mellen (1892), 53 Fed. Rep. 229; James & Abbott v. Canadian Pacific Ry. Co. et al. (1893), 5 I. C. C. R. 623; 4 I. C. R. 274; Mayor, etc., of Wichita v. A. T. & S. F. Ry. 225 fEEIGHT RATES AND CHARGES. [§ 87 between through and local rates is considerable will not, of itself, be regarded as conclusive evidence of undue dis- crimination.^'"' It is consistent with the law for a carrier, within reason- able limits, to accept less per ton per mile upon long hauls than upon short hauls and to widen the disparity between such rates as the difEerence in distance increases. Hence the proportion received by certain carriers out of a long distance through rate is not necessarily the measure of the through rate which such carriers are entitled to make over a materially short distance, though such proportion is an important consideration in determining the rightful relation of the through rates.^"^ If the carriers participating in a joint through rate de- sire to reduce or increase the separately established local rates via the same route, the order of the Commission re- quiring the maintenance of a joint through rate iis no bar to their doing so.^°^ T[ F. Division of Through Eate not Conclusive Evidence OF Reasonableness of Through Rate itself. Although a shipper or consignee has no direct interest in the way a joint rate is divided between the carriers, nor in the amount of the division received by each carrier, he is entitled, nevertheless, to inquire into such division when he complains that the joint rate is unlawful, for the amount re- ceived by the different carriers may be significant upon the reasonableness of the aggregate charge.^"^ While a division of a through rate long accepted by a car- Co. et al. (1903), 9 I. C. C. R. 558; Railroad Commissioners of Ky. v. C. N. O. & T. P. Ry. Co. et al. (1897), 7 I. C. C. R. 380. 200 T. & P. Ry. Co. V. I. C. C. (1896), 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940; see Parsons v. C. & N. W. Ry. Co. (1894), 63 Fed. Rep. 903; 11 C. C. A. 489, affirmed 167 U. S. 447; 42 L. ed. 231, 17 Sup. Ct. 887. 201 Colorado Fuel & Iron Co. v. Southern Pacific Co. et al. (1895), 6 I. C. C. R. 488. 202 Michigan Buggy Co. v. G. R. & I. Ry. Co., 15 I. C. C. R. 299. 203 Warren-Bhret Co. v. C. R. R. of N. J. et al., 8 I. C. C. R. 598. Regulation — 15. § 87] INTBESTATE TRANSPORTATION'. 226 rier may often be pertinent evidence, it is not a sound final test of the reasonableness of the through rate itself;^"* and when an unlawful rate results from some arbitrary share or division exacted by one of the carriers, the Commission will find the facts and state its conclusion with respect to such share or division.^"^ 1[ G. Bates Established by State Authority as Standards IN Fixing Interstate Eates. A railroad is not bound to accept a schedule of rates es- tablished by State authority as the measure of its charges on interstate traffic.^"* Neither is the Interstate Commerce Commission, whose jurisdiction is exclusive over interstate rates, controlled by the rates established by State Eailroad Commissions.^"" There are many reasons why State and interstate rates should be established in harmony with one another. When the Commission is asked to examine the reasonableness of an interstate rate, similar rates, established by State author- ity in that territory, must have great influence, especially when they have been acquiesced in by carriers. Still these State rates have no binding force upon the Commission. They are standards of comparison of greater or less value, according as they appear to be just and reasonable.^"' Eates established by State authority are presumed to be reasonable, but the same presumption also attaches to rates voluntarily established by carriers, and in proceedings be- fore the Commission, no greater sanctity can be presumed in favor of rates established by a State commission than those 204 Bulte Mfg. Co. et al. v. C. & 0. Rd. Co. et al.. 15 I. C. C. R. 351. 205 Warren-Ehret Co. v. C. R. R. of N. J. et al., 8 I. C. C. R. 598. 206 Re Freight Rates between Memphis and Arkansas Points (1905), 11 I. 0. C. R. 180. 207 Railroad Commission of Wisconsin v. C. & M. V. Ry. Co. (1909), 16 I. C. C. R. 84; Bartles Oil Co. v. C. M. & St. P. Ry. Co. et al. (1909), 17 I. C. C. R. 146; Marshall Oil Co. v. C. & N. W. Ry. Co. et al. (1908), 14 I. C. C. R. 210. 208 Corn Belt Meat Producers' Association v. C. B. & Q. Ry. Co. et al., 14 I. C. C. R. 376. 227 FREIGHT RATES AND CHARGES. [§ 87 voluntarily established by carriers,^"' and the Commission "would not hesitate, upon proper evidence that a rate so es- tablished would be unjust either to a carrier or a shipper, to refuse to accept it as a basis for fixing an interstate rate."" 1[ H. EeLATION BETWEEN WaTER AND EaIL TRANSPORTATION. When the Congress was given power to regulate commerce among the States, railroads had no existence. To whatever extent the regulation so provided for was intended to include transportation charges, it must have had special reference to the then existing transportation methods, which were mainly by lake, river or coastwise carriers. The regulation for which provision is made in the Act to Regulate Commerce does not apply to commerce as it was conducted when the power to regulate was conferred upon Congress. The Act applies to water transportation only when "used under a common control, management or ar- rangement for a continuous carriage or shipment in connec- tion with a railroad," and as part of a line or route of which another part is a railroad, and leaves carriers engaged in transportation wholly by water independent of regulation. The exemption of so considerable a part of transportation from the operations of the law has an important bearing upon the railroad rates of the country. The construction and maintenance of the way or track is a principal item in the cost of railway transportation, while the permanent way over navigable waters is free from all expense, and is maintained at public cost. In water trans- portation, carriers provide only the vessel or vehicle of car- riage. There is, therefore, a wide difference in the cost of rail and water service, and water transportation charges can be very much the lower and still be remunerative. Carriers by water are not required to publish rates, and are under no restrictions as to rebates, discriminations or 209 Paola Refining Co. v. M. K. & T. Ry. Co. (1909), 15 I. C. C. R. 29. 210 Hope Cotton Oil Co. v. Texas & Pacific Ry. Co. et al. (1907), 12 I. C. C. R. 266. § 88] INTEESTATE TRANSPORTATION. 338 preferences as to charges proportional as to distance. No stability is required in their charges, which may fluctuate as often as the exigencies of business rivalries dictate or the necessities for traffic render expedient. Whenever rail and water transportation are in direct competition, a reduction of rail rates to meet the water charges is essential to secure any part of the traffic.^" § 88. Rates Must Apply According to Movement. Upon the arrival of a shipment at the junction designated in the consignor's routing instructions it appeared that, be- cause of a washout on its lines, the connecting carrier could not accept the movement. The shipper thereupon assumed custody of the shipment and forwarded it by a water line. Held, That the carrier must collect its local rate to the junc- tion point, and cannot apply its proportion of the through rate.^" In another case a mixed carload of meat, eastbound, was diverted at the Ohio Eiver on account of a flood, and. by order of the shipper, was taken by a roundabout route to a point east of its destination, and was thence hauled west- bound to' destination. The mixed-carload rate applied on eastbound shipments, but the tariffs provided no mixed- carload rate on westbound shipments. Held, That such in- terruption of the eastbound movements would not justify the application of a mixed-carload rate on the westbound movement to destination.^^' So it is an entirely erroneous assumption that, where there are two or more lines with different rates between two points, a shipper may secure the application of the lowest rate by either of such lines, regardless of which one he 211 Third Annual Report of I. C. C. (1889). 212 Rule 147, Con. Rul. Bui. No. 4. 213 Rule 52, Con. Rul. Bui. No. 4 (March 11, 1908). 214 Hill & Webb v. M. K. & T. Ry. Co. et al. (1909), 16 I. C. C. R. 569. ^29 FREIGHT RATES AND CHARGES. [§89 § 89. Joint and Through Rates. H A. Joint Bate Matter of Agreement between Connect- ing Carriers. The question of joint through rates is a matter of agree- ment between connecting carriers, and they may or may not enter into such agreements as they may think their interests demand.^^^ However, it should be noted that this is subject to the power invested in the Interstate Commerce Commission by Section 15 of the Act, to establish through route and joint rates as the maximum to be charged, and prescribe the division of such rate when they may be necessary to give effect to any provision of the Act, and the carriers com- plained of have refused or neglected to voluntarily establish such through routes and joint rates. Joint rates may be so divided between the carriers that each receives less than its established local rate, or so that the full local charge is secured by one or more of the car- riers, the other party or parties accepting less than local rates; but whatever the basis of division, the essential fea- ture of such rates is that the connecting carriers have agreed or mutually consented to carry traffic over the connecting line for a less aggregate charge than the sum of their estab- lished local rates. In the absence of some agreement or understanding with a connecting line, by which a joint tariff of rates is author- ized, a given carrier cannot lawfully publish or apply any other rates than those which it fixes for transportation be- tween points reached by its railroad; and the rates so iixed are the only lawful rates which such carrier can charge for any transportation service which it may perform, whether the traffic carried is destined to points on its own road or to points on the line of some other carrier. A carrier which has published and filed its rates, as the law requires, may combine such rates with the lawfully es- 215 Southern Pacific Co. v. I. C. C. (1906), 200 IT. S. 536; 26 Sup. Ct. Rep. 330; 50 L. ed. 585.- § 89] INTERSTATE TKANSPORTATION. 330 tablished rates of a connecting carrier or carriers, and thus announce the aggregate amount for which traffic will be transported from points on its railroad to points on the line of isuch connecting carrier or carriers; but one carrier can- not lawfully add to the duly established rates of another carrier any amount it pleases less than its own local rates, and publish and use that sum as a rate to points on the line of such other carrier without its consent. Such a through rate is not a "joint rate," for joint rates can be made only by concurrence or assent; nor is it a combination rate, for one of its component parts has no legal existence or sanc- tion as a separate or local charge; there must be lawful rates upon each of the roads before there can be a lawful combination of rates.^^° T[ B. But One Legal Eate can Exist Between Two Points AT ANY TIME. The Commission has held that there can be but one legal rate between two points — a very simple enunciation of a fundamental principle. This rate must be (a) the local rate if over one road, or (b) the joint rate over a through route composed of two or more roads which have agreed to a joint, or (c) a combination of separately established rates ap- plicable on through business over a through route which does not enjoy a joint rate.^^' Two or more connecting carriers may establish a joint rate only upon notice of thirty days or under special per- mission. A joint rate, when duly established and in force, becomes the only lawful rate for through transportation.^^* A joint rate from point of origin to destination of a ship- ment is the lawful rate applicable to that movement, whether the rate be confined to the line of one carrier or be a joint rate applying over the lines of two or more carriers."^ 218 New York, N. H. & H. Rd. Co. v. Piatt, Receiver (1897), 7 I. C. C. R. 323. 217 Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co. et al. (1908), 13 I. C. C. R. 154. 218 Rule 55, Tariff Circular 17- A. 219 Ibid. 331 FREIGHT KATES AND CHARGES. [§ 89 A specific through rate is the lawful rate for a through shipment, even though some combination of rates may make lower, and the carrier may not charge the higher through rate upon one shipment and the lower combination rate upon another shipment of the same kind between the same points at the same time.^^" The practice on the part of carriers of accepting and transporting through shipments, as to which no joint rate applies, upon rates made up by combination of the rates of the several carriers participating in the movement, and of collecting, as delivering carriers, the aggregate charges of the several carriers upon such shipments, and of accounting to such carriers for their several portions of such charges, is practically universal. That custom has the same binding effect as a joint rate, both as between carriers themselves and as between carriers and shippers. Therefore, carriers may apply to through shipments rates to and from points to and from which there is no applicable published joint rate, by using lawfully published bases, locals and propor- tionals in connection with other lawfully published tariffs.^^^ 1[ C. Local Eate applicable to an Interstate Shipment is Through Eate in Effect at the Time the Shipment IS Eeceived by tpie Carrier. In case a shipment has been made over two or more rail- roads which have not, as to the journey, the shipment is to take, filed with the Commission a notice of through route and joint rate, as required by section 6 of the Act to Eegu- late Commerce, does the shipment take the sum of the local rates of the various lines over which it is moved, as such locals may be established at the time it is received by the ini- tial carrier, or is it subject to changes in locals which may be made before the shipment reaches the lines making such changes? That is to say: a shipment is made over the A line to a connection with the B line, and thence over the B 220 Morgan et al. v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 525. 221 Rule 5, Tariff Circular 15-A. § 89] INTERSTATE TEANSPOKTATION. 232 line to destination. The B line changes its locals after the shipment is billed at the point of origin, but before it has passed beyond the A line. Is the shipment subject to such change in rate of the B line, or does it move under rates in effect at the time it began its journey? A careful consideration of all the factors entering into this problem shows that, in the last analysis, the answer must depend upon a question of fact, this question being: Have the carriers over whose lines the shipment is to move made an arrangement, express or implied, for a through route? If a through route has been so formed, then the rate charged must be a through rate, and the shipment will move upon the rate existing at the time it is billed. If, however, no through rate has been formed, then the shipment will move, not upon one through journey, but upon a succession of journeys, and will be subject to any change in rates made by any carrier into whose possession the shipment has not been received. It needs no citation of authorities to prove that, at com- mon law, a carrier may confine its business entirely to its own line. It need not make its line part of any through route to or from a point off its line unless it so chooses. As was ■ pointed out by the United States Supreme Court in A.^ T. & S. F. Bd. Co. V. D. & N. 0. Rd. Co./'" a carrier might, if it so pleased, receive freight from other carriers at any junction point in precisely the same capacity that it would receive freight from a wholesale house or other ship- per doing business at such junction point. In such ease, under the common law, its rates would apply as on the date of its billing, rather than upon the date of the billing by a connecting line. There is no question that, where a joint rate has been made, and filed as such, over any through route, such rate takes effect as one charge, and shipments must be carried through on the rate in force at the time of the billing. There may, however, be through routes without joint rates. 222 A. T. & S. F. Rd. Co. V. D. & N. 0. Rd. Co., 110 U. S. 667; 28 L. ed. 291; 4 Sup. Ct. Rep. 185. 233 FREIGHT RATES AND CHARGES. [§89 A joint rate is simply a through rate, every part of which has been made hy express agreement between the carriers making the through route. The joint rate is a rate over a through route, but it is not the only through rate recognized by the Act and the decisions. Among the important amendments made in 1906 to the Interstate Commerce Act was that which makes it the duty of every carrier subject to the Act "to establish through routes and just and reasonable rates applicable thereto." (Sec. 1.) It is not necessary here to attempt to discover the full force of these words. Their significance, however, is not to be grasped without consideration of that latter por- tion of the Act (Sec. 6) which expressly recognizes the pos- sibility of a through route without a joint rate, and which, after directing the publication and filing of local rates and of joint rates, provides for stiU other rates in the following language : "If no joint rate over the through route has been estaMished, the several carriers in such through route shall filCj print, and heep open to public inspection as aforesaid the separately established rates, fares, and charges applied to the through' transportation." The reasons for this rule are at least two : (1) The policy of the law that every route and every service shall have a published rate equally known and equally available to all patrons of the carriers; and (2) the policy of the law that carriers otherwise not subject to the Act shall be, when par- ticipating in interstate business, subject to the Act to Regu- late Commerce. A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting car- riers. It may have a rate for every service it offers, and, as the route is a new unit — one line formed by two or more connecting lines — ^so its rate for every service is a unit, even though it be divided between the several carriers arranging themselves into the through route. As was said by the Com- mission in Brady v. P- R. Oo.,^^^ "Through carriage implies a 223 Brady v. P. R. Co., 2 I. C. C. R. 131; 2 I. C. R. 78. § 89] INTEESTATE TRANSPORTATION. 234 through rate." This is equally true whether the through rate be published as a whole by the joint action of the con- necting carriers, or, in the absence of a joint arrangement, be published in portions by the several carriers. The through route being one, a charge for a service over it is a charge for a single service, all the terms of which must be fixed at one and the same time; that is, at the time the initial car- rier enters into the engagement for the service. The rate is either a joint through rate, made by arrangement by the par- ties to the through route, or it is a combination through rate consisting of "the separately established rates, fares and charges applied to the through transportation." This sum, however, is a single rate for a single service, and a contract for through transportation is a contract for transportation at the through rate, whether jointly or separately established, in force at the time the shipment is billed.^^* Tariffs cannot be given a retroactive effect; they cannot be made to apply to conditions other than those existing upon the date when such tariffs become effective. A combination through rate is as binding, definite and absolute as a joint through rate ; and all of the conditions, regulations and privi- leges obtaining as to any factor in such combination rate for through shipment, at the time of initial shipment upon such combination through rate, must be adhered to, and cannot be varied as to that shipment during the period of transpor- tation of such shipment to its final destination.^^' In a given case, freight was received by a carrier, and bills of lading were issued therefor on December 21 and 29, 1908. The freight was actually moved on January 1, 1909, on which date a lower rate went into effect. Held, That the rate in effect on the date the carrier received the property for trans- portation is the lawful rate.^^* We therefore have the following rule: "If no' specific rate from point of origin to destination of 22i In the Matter of Through Routes and Through Rates (1907), 12 I. C. C. R. 164. 225 Ibid. 226 Rule 172, Con. Rul. Bui. No. 4 (May 4, 1909). 235 FREIGHT KATES AND CHARGES. [§ 89 a through shipment is provided, and no specific manner of constructing combination rate for it is prescribed, the low- est combination of rates applicable via the route over which the shipment' moves is the lawful rate for that shipment."^" "Such combination through rate must be treated as a unit from the date of original shipment to the date of its arrival at destination, and the rate applied must be the combination of the rates which exist upon the date of original shipment. All of the conditions, regulations and privileges obtaining as to any factor in such combination rate for through ship- ment, at the time of original shipment upon such combina- tion through rate, must be adhered to, and cannot be varied as to that shipment during the period of transportation of such shipment to its final destination. A local or propor- tional rate 'in' cannot be absorbed, diminished or affected by any 'out' rate not in effect at the time when the traffic moved upon such local or proportional rate."^^* Tl D. Cakeieks mat Specify Basing Points oe Factors fok Constructing Combination Bate. A carrier may provide in its tariff that, in the absence of a specific rate from point of origin to destination of a through shipment, combination rate to or via certain points will be made upon specified basing point or points, or by using certain specified tariffs or rates, and the combination rate so specified will be the lawful rate for the shipment. If shipment moves to or from a point directly intermediate to the base point upon which the lowest combination makes, such combination must be applied; and it is not necessary to haul the shipment to such base point and back again to or through point of origin or destination.'^^ 227 Rule 5, Tariff Circular 17-A. 228 Ibid. 229 Rule 5, Tariff Circular 17-A. NOTE: Neither this rule nor any portion thereof is to be construed as modifying or authorizing depart- ure from the Commission's ruling that a specific class or commodity rate between two -points is the lawful rate between those points re- gardless of any combination rate. It must also be understood that in a case where the lowest combination of rates makes on a base § 89] INTERSTATE TRANSPORTATION. 236 The words "poini of origin or destination," as used above, are interpreted to include a junction point with a connecting or branch line, which is directly intermediate to the lose point, upon which lowest combination makes and at which inter- change is made.^^" U B. Eate to Apply where no Specific Method oe Con- structing Through Bate is Provided for. If no specific rate from point of origin to destination of a through shipment is provided, and no specific manner of constructing combination rate for it is prescribed, the low- est combination of rate applicable via the route over which the shipment moves is the lawful rate for that shipment.^^^ H F. Eight of Shipper to Consign Freight to a given Point, ASSUME Custody and Eeship under Bates Lawfully APPLICABLE TO SUCH BeSHIPMENT. It is well settled that a shipper has the right to consign a shipment to a given point, pay the charges upon it, assume custody and take possession of the property, and later reship it to another point under rates lawfully applicable to such reshipment.^^^ A carrier or carrier's agent may not, however, act as for- warding or reeonsigning agent for the shipper for the purpose of evading or defeating the terms or purposes of the law, point as to which the point of origin or of destination is directly intermediate, a specific rate to or from such point that is higher than such combination is included in the Commission's ruling that a through rate that is higher than the combination of locals between the same points is prima facie unreasonable. It must be further un- derstood that in applying the lowest combination when it makes upon a base point as to which the point of origin or of destination is directly intermediate, the Commission expresses no opinion as to the reasonableness of a rate so constructed. 230 Supplement 1 to Tariff Circular 17-A. 231 Ibid. 232 Wood Butter Co. v. C. C. C. & St. L. Ry. Co. et al. (1909), 16 I. C. C. R. 374, citing Morgan et al. v. M. K. & T. Ry. Co. et al. (1907). 12 I. C. C. R. 525; Montgomery Frt. Bureau v. W. Ry. of Alabama (1908), 14 I. C. C. R. 150. ^37 FKEIGHT RATES AND CHARGES. [§ 89 or in such manner as to defeat or evade the intent of the law. To do that would be to resort to one of the devices prohibited in the Act.^^^ In the case of Stoclcyards Cotton & Linseed Go. v. C, M. & St. P. By. Co. et al./^* there was a published through rate on oilmeal, carload, from Minneapolis, Minn., to Milo, Mo., of 331/^ cents per 100 lbs., while there was a published rate of 10% cents per 100 lbs. from Minneapolis, Minn., to Kansas City, and a rate of 7% cents per 100 lbs. from Kansas City to Milo. The complainant attempted to secure the applica- tion of the two local rates to a shipment of oilmeal by billing it first to Kansas City, and then requesting the Milwaukee road to collect the charges up to Kansas City, deliver the car to the Missouri Pacific for carriage to Milo, and to secure a new bill of lading from Kansas City to Milo. The Mil- waukee road, instead of complying with this request, cor- rected the billing to read from Minneapolis to Milo, and ap- plied the through rate applicable to a through movement. The Commission decided that the defendant's action was proper, as a shipper cannot defeat the application of a joint through rate by constituting the carrier its agent to collect charges up to the junction point and reship the traffic to final destination. A lawful through rate existed between two points, ap- plicable over two routes, one of which was indirect, and, therefore, not ordinarily used by the carrier for through movements. The shipper billed locally to a point on the latter route, and rebilled to destination without taking either constructive or actual possession of the shipment at the local point, but making his rebiUing arrangements with the agent of the carrier at a distant point. Upon arrival of the ship- ment at destination the carrier collected the balance of the through rate. Held, That the local billing was not in good faith, but was a device between the shipper and the carrier's agents to avoid the higher through rate, by having the car- 233 Morgan v. M. K. & T. Ry. Co., supra. 23* Stock Yards Cotton & Linseed Co. v. C. M. & St. P. Ry. Co. et al. (1909), 16 I. C. C. R. 366. § 89] INTERSTATE TKANSPOKTATION. 2-38 rier's agents act as the forwarding agents of the shipper; therefore the through rate was the only rate lawfully ap- plicable."" H G. Combination of Joint Eatb to Common Points and. Local Eatb Beyond. In order to secure uniformity in practice and understand- ings, and to remove the cause of many complaints, the Com- mission decided that, when a joint through rate is the same to two or more points, and rate on through shipment to local station, to which no specific joint through rate applies, is made up by combination of such joint through rate to common points, and local rate beyond, the rate for through shipment must be determined by calculating the joint through rate to the point from which the lower local rate applies to point of destination, and adding thereto such local rate. For example: Joint through tariff names the same rates from certain Eastern points to Chicago and Mil- waukee. If shipment is destined to a point to which the local rate is less from Milwaukee than from Chicago, the rate applied should be the joint through rate to Milwaukee, plus the local rate from Milwaukee to destination, and unless the lines of delivering carrier reach both Chicago and Milwau- kee, the shipment should move via Milwaukee. If the local rate from Chicago to point of destination is lower than from Milwaukee, the rate should be the joint through rate to Chi- cago, plus the local rate from Chicago to destination, and un- less the lines of the delivering carrier reach both Milwaukee and Chicago the shipment should move via Chicago.^'" Rates for outbound through movements from such local stations and under like circumstances must be applied on the same basis where the joint through rates are the same from two or more points. This does not authorize any carrier to apply to transporta- 235 Rule 98 Con. Rul. Bui. No. 4 (Oct. 12, 1908). 236 Rule 215, Con. Rul. Bui 4 (March 18, 1907). This rule applied in Larrowe Milling Co. v. C. & N. W. Ry. Co. et al. (1910), 17 I. C. C. R. 443. 239 FREIGHT RATES AND CHAKQES. [§ 89 tion over its lines any rate except those stated in its own lawfully published tariffs or in the lawfully published joint tariffs in which it has concurred. If a carrier desires to "meet the rate" of a competitor, it must do so by lawfully including in its own tariffs such specific rates, proportional or otherwise, as may be necessary so to do.^^' The Commission suggested that shippers can assist in avoiding mistakes and misunderstandings, by calling atten- tion to the rate that should apply in such cases as come under this rule by indicating it on shipping bill in connec- tion with routing instructions; for instance, "Rate on Mil- waukee." This is, however, merely a suggestion, and does not relieve the agents of carriers from the responsibility of quoting and applying the correct lawful rate.^'* This rule does not apply in case where shipment has reached its destination as originally given by shipper and has been recognized, except when tariff contains reconsign- ment rule that provides for such application.^'^ This rule must not apply in any case where there is an applicable -specific joint through rate from point of origin to point of destination.^*" 11 H. Joint Through Eates to and from Porto Eican Ports. The Commission has stated that without deciding whether Porto Eico is to be regarded as a Territory of the United States as that phrase is used in Section 1 of the Act, it will recognize the validity of joint through rates from points in the United States to a port or ports in Porto Rico when properly concurred in by the water carriers, as well as the validity of joint through rates from a port or ports in Porto Rico to points in the United States when likewise con- curred in by the water lines.^*^ 237 Rule 215, Con. Rul. Bui. 4 (March 18, 1907). 238 Ibid. 239 Ibid. 240 Ibid. 241 Rule 201, Con. Rul. Bui. No. 4 (June 23, 1909). § 89] INTERSTATE TEANSPOETATION. 340 TI I. Cabeiee may not deny Benefit of Joint Eate to Man- ufactueees on connecting linbs in oedee to fostee Industeies on its Own Line. An interstate carrier, in order to build up enterprises of the same character on its own line and to prevent the trade of its local industries from being displaced by the competition of manufacturers of the same commodities on connecting line, cannot deny to industries on the lines of such connections the benefit of through routes and joint rates; nor is the fact that the revenues of the carrier may be reduced by establishing such through routes and joint rates a material consideration. It may be laid down as a general rule admitting of no qualification that a man- ufacturer or merchant who has traffic to move and is ready to pay a reasonable rate for the services has the right to have it moved and to have reasonable rates established for the movement, regardless of the fact that the rev- enues of the carrier may be reduced by reason of his com- petition with other shippers in the distant markets; and he has the right also to have the benefit of through routes and reasonable joint rates to such distant markets if no "rea- sonable or satisfactory or through" routes already exist. While the Commission's power to establish a through route and joint rate is limited to particular cases where a reason- able or satisfactory through route does not already exist, yet such power is not confined to cases where enforcements of the other provisions of the regulating statute is sought.^*^ TfJ. Paeties not Competent in Law to Establish Joint Eates for Interstate Teanspoetation. Where a railroad company, stage line and hotel associa- tion joined together to form a through route and joint rates for the transportation of passengers from Eastern points to the Yellowstone National Park and for providing accom- modations and stage transportation at such reservation, the Commission held, that such parties were not competent in 242 Cardlfe Coal Co. v. C. M. & St. P. Ry. Co. et al., 13 I. C. C. R. 460. 241 FREIGHT KATES AND CHAEGES. [§§ 90-94 law to form a through route and establish joint rates as provided in Section 6 of the Act to Regulate Commerce. ^*^ § 90. Rates are not Nullified by Failure of Carriers to Agree upon Division Thereof. The Commission has held that the fact that the carriers, by which the rate had been lawfully published and advertised to the shipping world as the cost of transportation between two given points over all reasonably available routes, have neglected or failed to agree upon divisions of the rate over one of the routes cannot be accepted as equivalent to a nullification of the published through rate over that route. Divisions are matters of private agreement and for that reason, generally speaking, are of no special concern to shippers, nor are they essential to legalize a published through rate.^** . § 91. Discrimination in Rates for Transportation of Freight. See Section S68, post. § 92. Free and Reduced-Rate Transportation of Property. See Chapter 31, post. §93. Publication, Posting and Filing of Freight Rates and Charges. See Chapter SO, post. §94. Published Rates not to be Deviated from. The statute provides that no common carrier shall charge or demand or collect or receive for the transportation of property, or for any service in connection therewith, between the points named in such tariffs other than the rates and 243 Wylie V. Nor. Pac. Ry. Co. et al. (1905), 11 I. C. C. R. 145; see also Gary v. Eureka Spgs. Ry. Co. et al. (1897), 7 I. C. C. R. 286. 244 Germain Company v. N. O. & N. E. Rd. Co. et al. (1909), 17 I. C. C. R. 22. EEGTrLATION 16. §§ 95, 96] INTBESTATE TEANSPORTATION. 242 charges which are specified in the tariff filed and in effect at the time.2*' See "Rebates and Concessions" Chapter 21, post. §95. Offering, Granting, Giving, Soliciting, Accepting, or Receiving any Rebate from published Rate declared to be a Misdemeanor and Penalty therefor. See Section 392, post. § 96. Maintenance of Rate reduced after Complaint filed with the Interstate Commerce Commission. 1[A. In Formal Cases. The Commission has decided that when after complaint made and after answer filed or before hearing a, rate is reduced to the sum demanded by complaint the report dis- posing of the proceeding shall carry with it an order di- recting the defendant to maintain that rate as a maximum for not less than two years.^*° T[ B. In Special Eepaeation Cases. The Commission has decided that orders in special repara- tion cases shall include a clause providing that the new rate or regulation upon the basis of which reparation is granted shall be maintained for a period of at least one year.^*' H C. Date feom which Time Euns. The Commission has held that the two years required for rates to be maintained in orders upon formal complaints and the one year required in orders in special reparation cases shall run from the date of the order and not from the date when the reduced rate or new regulation became effective."^ 245 Act to Regulate Commerce. Section 6. 246 Rule 11, Con. Rul. Bui. No. 4 (Dec. 2, 1907). 247 Rule 14, Con. RuU Bui. No. 4 (Jan. 6, 1908). 248 Ibid. 243 FREIGHT RATES AND CHARGES. [§97 §97. Effect of private Agreement between Carrier and Shipper concerning Charges for Transportation. In case of Hood & Sons v. D. & E. Co./^^ the Commission said: "The Commission has no authority to approve or enforce a private agreement made betvpeen shippers and carriers concerning charges for transportation, nor is it bound by such agreement when the reasonableness of such charges are challenged in the mode prescribed in the Act. It follows a fortiori that the Commission will not undertake to interpret or construe an agreement not to determine its legal effect, not to say that a tariff shall be issued in com- pliance therewith. The force and effect of such agreements as fixing obligations between the parties thereto are to be determined by the Courts, but under our rules of practice they may be regarded and used as evidence so far as perti- nent to questions which the Commission may determine, and it is desirable that the facts be thus agreed upon whenever practicable. When the parties thereto agree upon a rate, said, agreement may be regarded as an admission as between the parties executing it of strong evidentiary value that the rate agreed upon is reasonable, and such evidence will be considered by the Commission together with all other facts, circumstances, and conditions that may reasonably apply to the matters under investigation, keeping in view all in- terests involved, and its duty to establish just and reason- able rates available for all shippers alike without discrim- ination in favor of any particular shipper by reason of an agreement with the carrier. "On the other hand the Commission is expressly authorized and empowered to pass upon the reasonableness of a charge for transportation or the reasonableness of any regulation or practice affecting such charge, expressed in a tariff issued by any carrier subject to the provisions of the Act. The rates charged and collected must be in accordance with the tariff legally effective whether in compliance with a private agreement with the shipper or not, and the Com- 249 Hood & Sons v. D. & H. Co. (1909), 17 I. C. C. R. 19. § 98] INTERSTATE TEANSPOETATION. 244 mission must, therefore, look to the provisions of the tariff, to ascertain the rate that has been challenged or the reason- ableness of any regulations or practices affecting such rates, and to determine and prescribe upon consideration of all the evidence what will be a reasonable charge to be there- after observed and what regulation or practice is fair to be thereafter followed. "Where the language of a tariff is ambiguous in its speci- fications, and when there is a reasonable doubt as to its true import and meaning, the agreement may be examined and employed as a medium of explanation of the tariff to remove the ambiguity." § 98. Performance of Transportation Service without Rates on File with the Interstate Commerce Commission. In a recent prosecution instituted by the Commission of a carrier for engaging in transportation of interstate com- merce without having previously filed with the Interstate Commerce Commission lawful tariffs applicable thereto, and in which conviction was had, a fine of $12,000 was assessed, the Court, speaking through Humphrey, J., said:^ .250 It thus appears not only that the performance of interstate trans- portation by a carrier which has neglected to file and publish its rates and charges is a misdemeanor under the Act to Regulate Commerce and under the Elkins Act, punishable by as severe penalties as any other violation of these acts, but it also appears that the requirement for filing and publication of the rates has been in the Act to Regulate Commerce ever since the passage of the original Cullom bill, and that its importance has been recognized by the Congress by successive amendments designed to make it more precise and its violation more surely and more severely punishable. The railroad line of the defendant here is entirely situated within the State of Illinois. It is not more than 16 miles in length. It is really no more than a switching road connecting the various railways reaching East St. Louis and Alton, Ills., with each other and with various industries which have been established upon its rails. From the indictment and the plea thereto it appears, however, that this defendant is engaged in the transportation of property moving wholly by railroad from one state to another state. It is, therefore, as much subject to the Act as though it owned and operated all the line of railroad connecting the points in different states between which moved the commodities mentioned in the indictment. The authorities establish that the law regarding publication of 250 United States v. Illinois Terminal Ry. Co. 168 Fed. 546. 245 FEEIGHT EATE5 AND CHAKGES. [§99 rates and charges for interstate transportation applies with equal force to all carriers engaging in such interstate transportation, whether such carriers operate trains from one state to another or operate en- tirely within the boundaries of a single state.251 The chief object of the Act to Regulate Commerce is the prevention of discrimination. Carriers, being engaged in a public employment, must serve all members of the public on equal terms. This was the doctrine of the common law. It has been explicitly stated and strength- ened by the successive acts to regulate commerce. The requirement of the act that all rates should be published is perhaps the chief feature of the scheme provided for the effective outlawing of all discrimina- tions. If this portion of the act is not strictly enforced, the entire basis of effective legislative regulation will be lost. Secret rates will inevitably become discriminating rates. Whenever discriminating rates or practices are made public, a thousand forces of self-interest and of public policy will be set at work to reduce them to fairness and equality. The failure of any carrier to properly file and publish its rates is quite as serious a violation of the Act to Regulate Commerce as a failure to observe such rates after they have been properly filed and published. § 99. Territorial Divisions of the United States for Rate-Making Purposes. T[A. Centeal Peeight Association Teeeitoet. The Central Freight Association Territory is bounded as follows : On the east by a line drawn from and including Buffalo, N. Y., via the Erie R. R., through Dayton, to Sala- manca, N. T. ; thence via Buffalo & Allegheny Division of the Pennsylvania R. R., through Corydon, Warren, Oil City and Franklin, Pa., to Parker, Pa.; thence via Pittsburgh & Western Ry., through Butler to and including Pittsburgh, Pa.; thence via the Baltimore & Ohio R. R., through Wash- ington, Pa., and Wheeling, W. Va., to and including Bellaire, Ohio; thence via the Ohio River R. R., to and including Kenova, W. Va., thence via the Chesapeake & Ohio R. R., to and including Ashland, Ky., Charleston and Gauley, W. Va., also including all points on said line. On the north by the north route of the Grand Trunk Ry. System from and including Toronto, Ont, to Fort Gratiot, Mich.; thence 251 C. N. O. & T. P. Ry. V. I. C. C, 162 U. S. 184; 40 L. ed. 935, 16 Sup. Ct. 700; L. & N. R. R. v. Behlmer, 175 U. S. 648; 44 L. ed. 309, 20 Sup. Ct. 209; TJ. S. v. C. & N. R. R. Co., 157 Fed. Rep. 321; 85 C. C. A. 27; U. S. v. Belt Line R. R. Co. (C. C. A. Seventh Circuit, October Term, 1908), cited. § 99] INTERSTATE TEANSPORTATION. 346 via the north and west shores of Lakes Huron and Michigan to Chicago, including points located thereon. On the west by a line from Chicago through Joliet and Streator to and including Peoria, 111.; thence via the Toledo, Peoria & West- ern Ry. to and including East Burlington, 111.; thence via the east bank of the Mississippi River to its junction with the Ohio River, including all points on the above described line. On the south by and including points on the north bank of the Ohio River from Cairo, 111. (including Louis- ville, Ky.), to and including Coal Grove, 0.^^^ 1[ B. Percentage Basis Territory. The percentage basis territory is practically coterminous with the Central Freight Association Territory and embraces Illinois, Indiana, Ohio and the Peninsula of Michigan. It also includes certain ports on Lake Michigan in the State of "Wisconsin, it takes in Louisville and the south shore of the Ohio River in. northeastern Kentuncky; it includes the northwest corner of the State of Pennsylvania, and extends to a portion of the province of Ontario lying just north of Lake Erie and Lake Ontario. ^^^ U C. Joint Traffic Association Territory. The Joint Traffic Association Territory, or as it is often styled the Trunk Line Association Territory, is, generally speaking, that part of the United States east of a line drawn through Buffalo, N. T., and Pittsburgh, Pa., including Sus- pension Bridge, Niagara Palls, Tonawanda, Black Rock, Buffalo, East Buffalo, Buffalo Junction, Dunkirk, Salamanca, Erie, Pittsburgh, Bellaire, Wheeling, Parkersburg and Charleston, W. Va., and north of the Ohio and Potomac Rivers.^^* 252 Sondheimer Co. v. 111. Cent. Rd. Co. et al. (1909), 17 I. C. C. R. 60. 253 Saginaw Board of Trade et al. v. G. T. Ry. Co. et al. (1909), 17 I. C. C. R. 128. 254 Sondheimer Co. v. 111. Cent. Rd. Co. et al. (1909), 17 I. C. C. R. 60. 34:7 FKEIGHT RATES AND CHARGES. [§ 100 §100. Construction of Rates from Percentage Basis Terri- tory Points to Eastern Cities. The territory referred to as the "percentage basis terri- tory" is practically coterminous with what is known as Central Freight Association Territory and embraces Illinois, Indiana, Ohio and the Peninsula of Michigan. It also in- cludes certain ports on Lake Michigan in the State of Wis- consin; it takes in Louisville, Ky., and the south shore of the Ohio River in northeastern Kentucky; it includes the northwest corner of the State of Pennsylvania, and extends to a portion of the province of Ontario lying just north of Lake Erie and Lake Ontario. "Within these boundaries there are about 8,000 railway stations which have been divided or segregated for rate-making purposes, into what are called percentage zones. The rates to and from these groups are made up upon a system, commonly called the pereontage zone system, that is not in use elsewhere in the United States. This extensive rate system was originally established in 1887 by the lines serving the territory that lies east of the Mississippi River and north of the Ohio River. Under the plan first adopted the system embraced only junction or competitive points. The rate from Chicago to New York was taken as the unit or 100 percent basis, and the rates to Atlantic coast territory were fixed at a percent- age of the rate from Chicago to New York, the several junctiom or competitive points taking rates higher or lower than the Chicago rate as they were less or more distant from New York, by the shortest route "worked or M^ork- able," than was Chicago. This made practically a distance tariff. But after several years of actual experience with it that plan was modified and the rates now in effect were worked out on the following basis: ^ Prom an assumed rate of 25 cents from Chicago to New York there was first deducted the sum of 6 cents to repre- sent the fixed terminal expenses at the points of origin and destination. The remaining 19 cents represented the § 100] INTBESTATB TEANSPOETATION. 348 assumed charge for the rail haul exclusive of any service at either terminal. This rate being divided by 920, that being the accepted short-line mileage from Chicago to New York, yielded a rate per mile of 0.0206 cents for a move- ment from Chicago to New York under the assumed rate; and this rate per mile was used as the factor for establish- ing an assumed rate from any particular junction or com- petitive point on the basis of its mileage to New York. That factor or rate per mile multiplied by the number of miles from the particular point to New York gave an as- sumed rate for the rail haul from that point exclusive of any terminal service at either end of the movement. To that assumed rate the 6 cents was again added to cover the terminal expenses at the points of origin and destination. The result gave an assumed rate from the particular point to New York, including the terminal charges. And the percentage which this assumed rate bore to the assumed rate of 25 cents from Chicago to New York determined the per- centage of the Chicago rate which the particular point would take on any given class of merchandise. That is the general foundation upon which rests the whole structure of eastbound and westbound rates in that percent- age basis territory. The system has no official character — • that is to say, its bases have not been filed with the Inter- state Commerce Commission. It was simply a general un- derstanding intended as a guide to rate makers in establish- ing the specific rates that are published and filed with the Commission and govern traffic between the Atlantic coast territory and points in the territory, the boundaries of which have been described. In order to avoid the charge that such rates were the result of a concert of action between the carriers serving those territories, it was understood, that the system should be a minimum system of rates and not a maximum system. Theoretically it was also in- tended to apply only in the construction of rates to and from junction and competitive points. The rates to and from noncompetitive points were made up originally by adding a local or arbitrary rate from such points to some 349 FEEIGHT RATES AND CHARGES. [§ 100 nearby junction or competitive point to which a rate per- centage has been assigned. But in the progress of time the system was subjected to gradual modifications resulting in the extension to adjacent noncompetitive points' of the rate to and from the junction or competitive point, this eliminating the addition of the local or arbitrary rates just mentioned. Moreover, while the system was intended to aiford a minimum basis only, as a matter of fact the minimum percentages in the course of time became the maximum rates. The extension to ad- jacent points of the rates to and from nearby junctions and competitive points resulted in the formation of rate zones or groups of arbitrary shape and varying size, in some cases projecting into two States, all points in a particular group taking the same percentage of the Chicago-New York rate on traffic to and from the Atlantic coast territory. The general nature of the system may be illustrated by reference to one or two representative points. Springfield, in the State of Ohio, for example, is in the 82-percent zone. Xenia, Ohio, is the basing point for that group. Its dis- tance to New York at the time this system was established was 700 miles. If, now, we multiply the factor referred to, namely, 0.0206, by 700, we get 14.42 cents; and if to this we add the 6 cents representing the terminal expenses at both ends of the movement, we get 20.42 cents as an as- sumed rate from Xenia to New York, which is 81.7 percent of the assumed rate of 25 cents from Chicago to New York; and under the application of a general rule for the disposi- tion of fractions resulting from such computation, a frac- tion exceeding one-half of 1 percent is considered a full percent. A percentage of 82 percent is thus arrived at as the basis for constructing the rates from that group, and the rates from Springfield, 0., are therefore 82 percent of the Chicago-New York rates. Again, Fort Wayne, in the State of Indiana, is in a 90-per- cent zone. In arriving at that percentage, Muncie was taken as the basing point. The distance from Muncie to Lima via the L. E. & W. R. R. is 85 miles, and the distance from § 100] INTEESTATE TKANSPOKTATION. 250 Lima to New York via the Pennsylvania Lines, before they were reconstructed east of Pittsburg, was 713 miles, making a total distance of 798 miles by the shortest route "worked or workable." If the same factor be multiplied by 798 we get an assumed rate from Muncie to New York of 16.44 cents, exclusive of terminal charges. Adding 6 cents to cover these expenses, we arrive at an assumed rate between those points of 22.44 cents, including terminal charges, which is 98.76 percent of the assumed rate of 25 cents from Chicago to New York. The specific rates from Fort Wayne as pub- lished by the trunk lines are therefore made up on the basis of 90 pecent of the Chicago-New York rate, the 0.76 of 1 percent being taken as a whole percent. In building up the system efforts were made to avoid, so far as possible, all infractions of the long-and-short-haul clause of the Act. The boundaries of the groups are the lines of railroads, and the point around which each group has been constructed as a basing point is ordinarily the most distant point from New York in the group by the most di- rect workable route. Water competition and the participa- tion by north and south lines, such as the Monon, in the traffic between the Atlantic coast territory and the percent- age-basis territory, as well as other competitive elements, have naturally had some effect in the shaping of the zones. New roads have been built and new routes established since the percentages of the several groups were originally as- signed, and this in some instances has resulted in material changes in rates. Newly developed traffic and other condi- tions have also been considered and from time to time have led to alterations in the percentage of some points. Although the effect of these influences on the form and boundaries of the percentage zones is not without interest, it will not be necessary to dwell here upon those features of the sys- tem. While it is not always a simple matter when examin- ing a map of the percentage group territory to understand and at once comprehend the causes that have produced zones or groups of such irregular outlines, nevertheless a careful study of particular groups, and some knowledge of the 351 FEEIGHT EATES AND CHAEGBS. [§ 101 transportation conditions that surround and effect them have given the Commission the general impression that their boundaries have been established upon substantial and pre- sumably sound grounds. The fact that no group rates in this country have been subjected to less criticism than the rates to and from these percentage-basis territory and the Atlantic coast is some evidence of the care with which the system has been developed. Moreover, the enormous commerce that proceeds to and from Central Freight Association territory has not only ad-, justed itself to this system of rates, but shippers engaged in that commerce have thoroughly understood it for a score and more of years. "While traffic and transportation condi- tions will doubtless change from time to time and thus ne- cessitate alterations in the zone boundaries, such a modifica- tion must necessarily be made with deliberation and only upon adequate grounds.^^^ § 101. Jurisdiction of Interstate Commerce Commission Over Freight Eates and Charges. TJA. Duty of Commission in general in respect to Kates. The important duties of the Interstate Commerce Commis- sion in respect to railroad rates include the duty of inquiry as to the management of the business, with the right to compel complete and full information concerning it, and the duty of seeing that there is no violation of the long-and- short-haul clause of the Act, or any prohibited discrimina- tion, rebates, or other device to give undue preference, and 255 Saginaw Board of Trade et al. v. Grand Trunk Railway Co. et al., 17 I. C. C. R. 128 (1909). The Commission stated that so far as a cursory examination of its records has disclosed, there have been until this petition was filed, hut three other formal proceedings since the organization of the Commission iii 1887, in which complaint was made of the percentage assigned to a particular group. Detroit Board of Trade v. Grand Trunk Ry. of Canada, 2 I. C. C. R. 315; Pratt Lumber Co. V. C. I. & L. Ry. Co., 10 I. C. C. R. 29; Green Bay Business Men's Association v. L. S. & M. S. Ry. Co., 15 I. C. C. R. 59. § 101] INTEESTATB TRANSPOKTATION. 253 also that the publicity required by Section 6 of the Act is observed.^^* 1[B. Commission may Determine and Peesceibe Just and Eeasonable Bates to be Observed as Maximum Charges for Transportation oe Freight. The Act to Regulate Commerce authorizes and empowers the Commission, and makes it its duty, whenever, after fuU hearing upon a complaint, as provided in Section 13 of the Act, or upon the complaint of any common carrier, it shaU be of the opinion that any of the rates or charges whatsoever demanded, charged or collected by any common carrier or carriers, subject to the provisions of the Act, for the trans- portation of property, or that any regulations or practices whatsoever of such carrier or carriers affecting such rates are unjust or unreasonable, or unjustly discriminatory, or unjustly preferential or prejudicial, or otherwise in violation of any of the provisions of the Act, to determine and pre- scribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such ease as the maximum to be charged.^" The Commission is authorized to condemn an existing rate and order a reduction of that rate, or prescribe a reasonable maximum rate to be charged in the future only when, upon consideration of all the facts, circumstances and conditions appearing, it is of the opinion that the rate complained of is unreasonable, or unjustly discriminatory, or unduly prefer- ential.^^* This should not be understood as giving the Commission power to prescribe maximum rates which are absolute for the future, because that is not true, as will be seen further along. Such rates are only binding on the carrier for a period of two years, as will be noted in Paragraph D, infra. 256 1. c. C. V. C. N. 0. & T. P. Ry. Co. et al. (1896), 167 V. S. 479; 42 L. ed. 243; 17 Sup. Ct. Rep. 896. 257 Act to Regulate Commerce. Section 15. 258 Marshall Oil Co. v. C. & N. W. Ry. Co. et al. (1908), 14 I. C. C. R. 210; Dallas Frt. Bureau v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 427. 253 FEEIGHT RATES AND CHARGES. [§ 101 U C. Commission may Determine and Prescribe Just and Eeasonable Eegulations or Practices. The Commission may determine and prescribe what regula- tion or practice in respect to property transported is just, fair and reasonable to be thereafter foUowed.^^" It may, therefore, after investigation, find a particular rate to be unlawful, and prohibit the exaction of that rate.^°° The Commission has authority whenever the unreasonable- ness of the rate is in issue.^"^ Upon the most restricted interpretation of the fifteenth section of the statute the Commission has jurisdiction of any rule or regulation affecting the rate of transportation.^^^ T[ D. Commission mat Order Carriers to Cease and Desist PROM FULL Extent oe Violations found. The statute empowers the Commission to make an order that the carriers shall cease and desist from the violation, as stated m Paragraph A, supra, to the extent to which the Com- mission finds the same to exist, and to not thereafter pub- lish, demand or collect any rate or charge for such trans- portation than the maximum rate or charge so prescribed, and to conform to the regulation or practice so preseribed.^^^ TfE. Order of Commission shall Continue in Force not Exceeding Two years unless Suspended or Set Aside BY Commission or C'ourt. The statute provides that all orders of the Commission re- lating to rates or charges shall take effect within such rea- sonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the 259 Act to Regulate Commerce. Section 15. 260 Pa. Millers' State Association v. P. & R. Ry. Co. et al. (1900), 8 I. C. C. R. 531. 261 Porter v. St. L. & S. F. Rd. Co. et al., 15 I. C. C. R. 1 (1909). 262 See note 259, supra. 263 Act, Section 15. § 101] INTERSTATE TRANSPORTATION. 254 Commission, or be suspended or set aside by a Court of com- petent jurisdiction.^"* This empowers the Commission to prescribe rates for a fu- ture period of not exceeding two years.^^'' H P. Commission may Establish Through Eoutes and Joint Eates Applicable thereto. The statute provides that the Commission may, after hear- ing on a complaint, establish through routes and joint rates as the maximum to be charged, and prescribe the division of such rates as provided elsewhere, and the terms and condi- tions under which such through routes shall be operated, when that may -be necessary to give effect to any provisions of the Act, and the carriers complained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reasonable or satisfactory through route exists, and that this provision shall apply when one of the connecting carriers is a water line.^°° The law does not require the Commission, in all eases where no through routes and joint rates exist, to establish them, but only empowers it to do so in proper cases, with the manifest intent of giving effect to the general purposes of the Act to Regulate Commerce by securing reasonable facili- ties to the public and preventing unreasonable and unjust rates, practices and discriminations, and in the exercise of this authority the Commission is bound by the same consid- erations of justice and fairness as it is in the exercise of the rate-making powers in other respects. ''°'' Where neither the interests of the public nor the ends of justice as between the parties directly interested will be pro- moted by the establishment of through routes and joint rates, and division thereof, a proper case for the exercise of the authority invoked has not been shown.^"' 264 Act to Regulate Commerce, Section 15. 265 Pacific Coast Lumber Mfrs.' Association at al. v. Northern Pacific Ry. Co. et al. (1909), 16 I. C. C. R. 465. 206 Act to Regulate Commerce. Section 15. 267 Loup Creek Colliery Co. v. Virginian Ry. Co. (1907), 12 I. C. 0. R. 471. 268 Ibid. 255 FREIGHT RATES AND CHAHGBS. [§ 101 U G. Commission no Power to Pkesceibe Eates foe the Future. An inquiry whether rates of carriers are reasonable or not is a judicial act; but to prescribe rates for the future is a legislative act.^°° Incorporating into the Interstate Com- merce Act the common-law obligation resting upon the car- rier to make all its charges reasonable and just, and direct- ing the Commission to execute and enforce the provisions of the Act, do not, by implication, carry to the Commission or invest it with power to exercise the legislative function of prescribing rates which shall control in the future. Section 6 of such statute expressly recognizes the right of the carrier to establish, increase or reduce rates on condition of pub- lishing and filing them with the Commission.^'"' The Interstate Commerce Commission has no power to pre- scribe a tariff of rates which shall control in the future, and therefore cannot invoke a judgment in mandamus from the Courts to enforce any such tariff by it prescribed.^'^ Congress has not conferred upon the Interstate Commerce Commission the legislative power of prescribing rates, either maximum or minimum or absolute, nor has it authorized the Commission to obtain from the courts a peremptory order that, in the future, the railroad companies should follow the rates which it has determined to have been in the past rea- sonable and just.^^^ 1[ H. PowEK OF Commission to Eelieve feom Operation of Long-and-Shoet-Haul Clause. See Section 108, post. 1[ I. Commission no Authority to Establish Geneeal Eate Schedules. The Commission has no authority to establish general rate 289 1. C. C. V. C. N. O. & T. Ry. Co. et al. (1897), 167 U. S. 479; 42 L. ea. 243, 17 Sup. Ct. Rep. 896. ■ 270 Ibid. 271 Ibid. 272 1. c. C. v. Alabama Midland Ry. Co. et al. (1897), 168 U. S. 144; 42 L. ed. 414; 18 Sup. Ct. Rep. 45. See below, 74 Fed. Rep. 715; 5 I. C. R. 685. § 101] INTERSTATE TEANSPOKTATION. 356 schedules, but must deal with the interstate rates of this country, which have not been established upon any consis- tent theory, as it finds them. What the Commission takes off in one place it cannot add in some other. Unless, there- fore, the general result of all rates is to yield an undue reve- nue to the carrier, the Commission should not reduce a par- ticular rate simply because it might think, if establishing that rate de novo as part of a general scheme, that it ought to be somewhat lower or somewhat higher in proportion to the others. The rate attacked must be so out of proportion as to be unreasonable or must so discriminate as to be undue or must be unlawful for some other special reason.^^^ lyj. Commission may make an Order Prescribing same Eate for Similar Service to Other Shippers. It is one of the primary purposes of the Interstate Com- merce Law to remove discriminations* in rates; and under the .broad power conferred on the Interstate Commerce Com- mission "to execute and enforce the provisions of this Act" and "to make an order that the carrier shall cease and desist from such violation to the extent to which the Com- mission find the same to exist," where it has found that dis- crimination exists against a shipper or commodity, it may prescribe a reasonable rate, and that the charge shall be the same as that for a similar service to other shippers or on another similar commodity, instead of fixing an absolute maximum rate, which would enable the carrier to continue the discrimination by reducing the rate to the shippers or on the other eommodity.^'^* 11 K. Power of Commission to Establish Joint Through Eates and Divisions Thereof. The statute provides that the Commission may after hearing on a complaint establish through routes and joint rates as the maximum to be charged and prescribe the di- 273 Corn Belt Meat Producers' Association v. C. B. & Q. Ry. Co. et al. (1908), 14 I. C. C. R. 376. 274 N. Y. C & H. R. R. Co. V. I. C. C. (1909), 168 Fed. Rep. 131. 357 FREIGHT RATES AND CHARGES. [§ 101 vision of such rates when that may be necessary to give effect to the provisions of the Act, and the carriers com- plained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reason- able or satisfactory through route exists."^ This provision also applies when one of the connecting carriers is a water line. The law does not require the Commission in all cases where no through routes and joint rates exist to establish them, but only empowers it to do so in proper cases with the manifest intent of giving effect to the general purposes of the Act to Regulate Commerce by securing reasonable facilities to the public and preventing unreasonable and un-i just rates, practices and discriminations, and in the exercise of this authority the Commission is bound by the same con- siderations of justice and fairness as it is in the exercise of the rate-making power in other respects. Where neither the interest of the public, nor the ends of justice as between parties directly interested, will be promoted by the estab- lishment of through routes and joint rates and divisions thereof, a proper case for the exercise of the authority in- voked has not been shown. ^'^ ^L. Orders in Proceedings Instituted by the Commission. In its recent report to. Congress, the Commission stated:^" "Section 13 of the original Act, after enumerating the dif- ferent parties who might complain to the Commission, pro- vided that the Commision itself might, 'institute any inquiry on its own motion in the same manner and to the same effect, as though complaint had been made.' Under this provision the Commission, previous to the Hepburn amendment, fre- quently instituted proceedings for the correction of unreason- able rates and practices. "The thirteenth section stands the same now as formerly. 275 Act to Regulate Commerce. Section 15. 276 Loup Creek Colliery Co. v. Virginian Ry. Co. (1907), 12 I. C. C. R. 471. 277 Twenty-Third Annual Report of I. C. C. (1909). Eegulation — 17. § 102] INTERSTATE TKANSPOETATION. 258 Section 15 as amended empowers the Commission to make orders 'after full hearing upon a complaint made as provided in Section 13 of this Act.' Can the Commission today make an order under the fifteenth section in a proceeding insti- tuted upon its own motion under Section 13? The Com- mission has in one or two instance exercised this authority, but the right is by no means certain, and we feel strongly that this doubt should be removed by appropriate amend- ment. If this body is to be relied upon to correct unreason- able railway rates, regulations, and practices, instances must frequently arise in which no formal complaint will be filed, but where investigations ought to be had and order made. Our experience shows that it will often be necessary to broaden the scope of complaints which are filed and prose- cuted if justice is to be done between different communities. We believe that wherever it appears, either from a formal complaint filed or from informal complaint received or from the general knowledge of the Commission, that a given situ- ation ought to be investigated the Commission should have authority, upon its own motion or by modifying a complaint already filed, to prosecute an adequate inquiry upon notice to the carrier and to make a relieving order if one be re- quired. ' ' President Taft in his recent message to Congress stated :^'^ "Under the existing law the Commission can only act with respect to an alleged excessive rate or unduly discriminatory practice by a carrier on a complaint made by some individual affected thereby. I see no reason why the Commission should not be authorized to act on its own initiative as well as upon the complaint of an individual in investigation of the fair- ness of any rate or practice, and I recommend the amendment of the law to so provide. " § 102. Restraint of Advance in Rates pending Proceedings before the Commission. In its report to Congress for the year 1907, the Commission stated that: 278 Message of January 7, 1910. 259 FEBIGHT KATES AND CHAEGBS. [§ 103 "Under the operation of the Interstate Commerce Act the right to initiate interstate rates rests entirely with the rail- way, which may, by giving thirty days' notice, put into effect any rate or any regulation or practice affecting a rate which it sees fit. The Commission is not required to approve these rates and has no authority whatever to con- demn them. It can only act upon a rate so established by the railway in case a formal complaint is filed attacking that rate and after a full hearing. This is the express provision of the statute. "It is certainly just that carriers should not be required to reduce their transportation charges, nor to alter their rules or practices affecting such charges, without opportunity to be heard upon their part, for these charges are, in essence, the property of the railway. It seems therefore ordinarily a just provision to require that formal notice shall be given the railway, with opportunity to justify its rate, before a reduction is ordered. "When, however, the carrier advances a rate or so changes a regulation or practice as to impose upon the shipping public a higher charge or some more onerous condition an entirely different question is presented. Railway rates enter to a greater extent than might at first thought be supposed into the business operations of this country. The contracts of the coal operater, for example, run for a year, frequently two years, and the margin of profit is such that an advance in the transportation charge of no more than 5 or 10 cents per ton may convert a profitable contract into a losing one. Engagements for the sale of grain are made upon the basis of the present rate, and an advance of 1 cent per 100 pounds may entail a loss in the transaction. The lumber manu- facturer may arrange for his season's cut upon the basis of the existing tariff, and a change may mean disaster to his business. "The above examples are not fancied cases. They have all been brought to the attention of the Commission within the past year in such a form as to present strong grounds for relief. Assuming that the advanced rate would be per- § 102] INTERSTATE TRANSPORTATION. 260 feetly just in the end, it may, nevertheless, be entirely unjust to suffer it to go into effect at the time named by the carriers. "In the majority of instances, perhaps, advances may properly be made before the reasonableness of the advanced rate has been finally passed upon by this Commission; but there are also many instances where great injustice must result unless matters can be kept in statu quo while proceed- ings are pending to test the reasonableness of the advance. Where a rate has been maintained for a considerable time and where business interests will be seriously affected by its change it is no undue hardship to require the carrier to continue that rate in effect until the propriety of the advance can be passed upon, and to finally make the advance itself at such time as will work no unnecessary injury. Cer- tainly there ought to be some tribunal to which shippers can appeal, with authority, if such a course seems just, to pro- hibit the advance or the change until the general question can be considered. "At the present time it is not very clear whether such authority anywhere exists. Certainly the Commission does not possess it. It can not itself, by any order, restrain the advance, nor can it, apparently, apply to the courts for such a restraining order unless the advance works such a discrim- ination as is forbidden by the so-called Elkins Act, and this is not usually true of a mere increase in the rate. In sev- eral instances, courts of equity have interfered to prohibit advances pending proceedings before the Commission. In these eases an injunction has been issued in favor of the complainants alone, so that at the pres'ent time the general public is paying the advanced rate, while the complainants are being charged the old rate. These -injunctions were granted upon the filing of a bond — $10,000 in one case and $250,000 in the other. It is evident that the application of any such practice must Tesult in discrimination and hardship to the general public. "We therefore recommend, that when an advance in rates or a change in any regulation or practice is attacked by 261 PKEIGHT RATES AND CHAEGES. [§ 103 complaint to this Commission, the Commission shall have the power, in its discretion, after notice to and hearing of the parties, to prohibit the taking effect of the advance or change until the matter has been finally heard and deter- mined. "At all events Congress should definitely understand that we, under the present law, are powerless to act in reference to these advances except upon the filing of a formal com- plaint and after a full hearing of the ease." And in its report to Congress for the year 1909, the Com- mission further stated: "It seems plain to us that some method should be provided by which railroads can be prevented from advancing their rates or changing their regulations and practices to the disadvantage of this shipper, pending an investigation into the reasonableness of the proposed change. The confusion and discrimination which result from the present conditions have been carefully pointed out in our last two reports. "It is said that the shipper who pays an unreasonable rate can, if that rate be finally adjudged excessive, recover the overplus which he has paid. But this in no respect meets the situation. The shipper most injured is the one who can not pay the rate and take the chances of recovery, and who, therefore, may be forced out of business; the producer or the consumer, who does not pay the rate at all in the first instance, and consequently has no recourse, is the real suf- ferer. "Nothing can be more fallacious than to assume that dam- ages are in most instances a remedy for the extortion of an unreasonable rate; nor, if it should be finally held that Courts have authority to prohibit advances, are the injured parties in most cases able to conduct an expensive litigation and file the enormous bonds which are necessary to the obtaining of an injunction. "There is no absolute stai^^ard of a reasonable freight rate, and there is, therefore, no absolute right upon the part of a railroad to charge a particular rate. Where a given rate has been in effect, often for years, a strong presump- § 103] INTERSTATE TRANSPORTATION. 262 tion of its reasonableness arises, and there is no hardship in giving this Commission authority, in its sound discretion, to require a continuance of that rate until opportunity has been afforded to investigate the proposed advance." President Taft in his recent message to Congress said c^" "Under the existing law, the Commission may not investigate an increase in rates until after it shall have become effective; and although one or more carriers may file with the Com- mission a proposed increais'e in rates or change in classifica- tions, or other alterations of the existing rates or classifica- tions, to become effective at the expiration of 30 days from such filing, no proceeding can be taken to investigate the reasonableness of such proposed change until after it be- comes operative. On the other hand, if the Commission shall make an order finding that an existing rate is excessive and directing it to be reduced, the carrier affected may by pro- ceedings in the Courts, stay the operation of such order of reduction for months and even years. It has, therefore, been suggested that the Commission should be empowered, when- ever a proposed increase in rates is filed, at once to enter upon an investigation of the reasonableness of the increase and to make an order postponing the effective date of such increase until after such investigation shall be completed. To this much objection has been made on the part of the carriers. They contend that this would be, in effect, to take from the owners of the railroads the management of their properties and to clothe the Interstate Commerce Com- mission with the original rate-making power — a policy which was much discussed at the time of the passage of the Hep- bum Act, in 1905-6, and which was then, and hais always been, distinctly rejected; and in reply to the suggestion that they are able, by resorting to the Courts, to stay the taking effect of the order of the Commission until its reason- ableness shall have been investigated by the Courts, whereas the people are deprived of any such remedy with respect to action by the carriers, they point to the provisions of the Interstate Commerce Act, providing for restitution to the 279 Message of January 7, 1910. 263 JKEIGHT KATES AND CHAEGES. [§ 102 shippers by carriers of excessive rates charged in cases where the orders of the Commission reducing such rates are af- firmed. It may be doubted how effective this remedy really is. "Experience has shown that many, perhaps most, shippers do not resort to proceedings to recover excessive rates which they have been required to pay, for the simple reason that they have added the rates paid to the cost of the goods and thus enhanced the price thereof to their customers, and that the public has in effect paid the bill. On the other hand, the enormous volume of transportation charges, the great number of separate tariffs filed annually with the In- terstate Commerce Commission, amounting to almost 200,000, and the impossibility of any commission supervising the making of tariffs in advance of their growing effective on every transportation line within the United States to the extent that would be necessary if their active concurrence were required in the making of every tariff has satisfied me that this power, if granted, should be conferred in a very limited and restricted form. "I therefore recommend, that the Interstate Commerce Commission be empowered whenever any proposed increase of rates is filed, at once, either on complaint or of its own motion, to enter upon an investigation into the reasonable- ness of such change, and that it be further empowered, in its discretion, to postpone the effective date of such pro- posed increase for a period not exceeding 60 days beyond the date when such rate would take effect. If within this time it shall determine that such increase is unreasonable, it may then, by its order either forbid the increase at all or fix the maximum beyond which it shall not be made. If, on the other hand, at the expiration of this time, the Com- mission shall not have completed its investigation, then the rate shall take effect precisely as it would under the existing law, and the Commission may continue its investigation with such results as might be realized under the law as it now stands. ' ' § 103] INTERSTATE TEANSPOETATION. 364 § 103. Recommendation that Carriers shall quote Bates to Shippers. In his recent message to Congress, President Taft said:^'" "Much complaint is made by shippers over the state of the law under which they are held bound to know the legal rate applicable to any proposed shipment, without, as a matter of fact, having any certain means of actually ascertaining such rates. It has been suggested that to meet this griev- ance carriers should be required upon application by a ship- per, to quote the legal rate in writing, and that the shipper should be protected in acting upon the rate thus quoted; but the objection to this suggestion is that it would afford a much too easy method of giving to favored shippers un- reasonable preferences and rebates. "I think that the law should provide that a carrier, upon written request by an intending shipper, should quote in writing the rate or charge applicable to the proposed ship- ment under any schedules or tariffs in which carrier is a party, and that if the party making such request suffers damage in consequence of either refusal or omission to quote the proper rate, or in consequence of a misstatement of the rate, the carrier shall be liable to a penalty in some reason- able amount, say two hundred and fifty dollars, to accrue to the United States and to be recovered in a civil action brought by the appropriate district attorney. "Such a penalty would compel the agent of the carrier to exercise due diligence in quoting the applicable legal rate, and would thus afford the shipper a real measure of pro- tection, while not opening the way to collusion and the giving of rebates or other unfair discrimination." 280 Message of January 7, 1910. CHAPTEE VIII. LONG-AND-SHORT-HAUL CLAUSE AND RELIEF FROM OPERATION THEREOF. Section 104. Long-and-Short Haul Provision of the Statute. 105. Purpose of the Long-and-Short Haul Clause. 106. Dissimilarity of Circumstances and Conditions must exist in order to justify Lower Rate at Longer Distance Point. 107. Similarity and Dissimilarity of Circumstances and Conditions is a Question of Fact. 108. Jurisdiction of the Commission. 109. Carrier not required to make Application to Commission before meeting Competition at the Distant Point. 110. Competition at the Distant Point as justifying a Lower Rate for the Longer Haul. 111. Competition between Rail Carriers at the Distant Point. 112. Competition between Railways does not, in and of itself, create the Dissimilarity of Circumstances and Conditions. 113. Water Competition at the Distant Point as a Justification. 114. Right of Carrier to Elect whether it will meet Water Competition. 115. Principles governing Right of Carrier to meet Competition. 116. Discrimination in favor of Competitive Points not undue or unjust. 117. Charging Same Rate to Longer as to Shorter Distance. 118. Possibility of Competition at the Intermediate Point. 119. Demurrage Charges must not be included in the Higher Charge. 120. Carriers must not handle Long-Haul Traffic at a Loss. 121. Rate must be considered as an Entirety. 122. Meaning of the word "Line." 123. Long-and-Short Haul Provisions of State Statute not appli- cable to Interstate Traffic. 124. Examples of the Application of the Long-and-Short Haul Clause. § 104. Long-and-Short Haul Provision of the Statute. The Act to Regulate Commerce provides that it shall be unlawful for any common carrier subject to its provisions to charge or receive any greater compensation in the aggre- gate for the transportation of passengers or of like kind of 265 § 105] INTEESTATE TEANSPOETATION. 266 property under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance.^ The statute further provides that this shall not be construed as authorizing any common carrier within the terms of the Act to charge and receive as great compensation for a shorter as for a longer distance.^ §105. Purpose of the Long-and-Short Haul Clause. The exaction, without lawful excuse, of a greater compen- sation in the aggregate for the shorter than for the longer haul over the same line in the same direction, the shorter being included in the longer, which is forbidden by section 4 of the Act to Regulate Commerce, is only a form of un- just discrimination or undue preference, to which, it seems, Congress desired to call particular attention.^ The long-and-short haul principle is nothing more than an extension to places of the rule forbidding unjust discrimi- nation between persons. It is as necessary to the prevention of illegal preference between localities as the second section is to the' prevention of wrongful favoritism as between per- sons. The fourth section, or long-and-short haul provisions, and the second, or unjust discrimination clause, stand in the statute as definite and specific rules, on either side of the general and indefinite provision against undue preference contained in the third section. They are, on account of di- rectly applying to particular transportation service, essential to successful regulation, for their presence in the statute prevents a large number of abuses which would exist with impunity until separately condemned in actions brought under the third section or the first section of the statute. This is nothing more than an expression of the old but always applicable maxim that "an ounce of prevention is worth a pound of cure." The provision is certainly one of obvious justice and pro- 1 Act to Regulate Commerce. Section 4. 2 Ibid. ••> E. D. McClelen et al. v. Southern Ry. Co. et al., 6 I. C. R. 588. 267 LONG-AND-SHOET-HAUL CLAUSE. [§ 106 priety. Before the Act took efEeet, railway rates, based upon methods directly opposed to the present qualified prohibition of greater charges for shorter hauls, had been so long an established practice that interests at localities thus favored were subjected to some hardship when the new law com- pelled a general revision of railway charges. But ,the Commission allowed these interests and carriers ample time to become accustomed to the change and gave a liberal and generally commended construction to the meaning of the section. Business and railway rates came gradually into something like conformity with the long and short haul rule, and while this process of adjustment was going on, it was also developed that the section was so elastic that no harm to legitimate carrying or business interests need be feared from its operation. § 106. Dissimilarity of Circumstances and Conditions must Exist in Order to Justify Lower Rate at Longer Distance Point. Where the circumstances and conditions attending the transportation of passengers or property over a longer dis- tance are substantially similar to those attending transpor- tation of passengers or like kind of property over a shorter distance on the same line in the same direction, the shorter being included within the longer distance, the carrier is absolutely prohibited by the long-and-short haul clause of the Act from charging greater compensation in the aggre- gate for the shorter than for the longer distance unless the Commission, for good cause, sees proper to relieve the carrier from its operation.* Where the circumstances and Condi- tions at the longer distance point are substantially dissimilar to those at intermediate points on the same line, the prohibi- tion against charging more for the shorter than for the longer haul is not applicable.' *I. C. C. v. A. T. & S. F. Rd. Co. et al. (1892), 50 Fed. Rep. 295; Rock Hill Buggy Co. v. Southern Ry. et al. (1905), 11 I. C. C. R. 233. 5 1. C. C. V. Clyde S. S. Co. (1900), 181 U. S. 29; 45 L. ed. 729, 21 Sup. Ct. 512; Mo,. Pac. v. T. & P. Ry. Co., 41 Fed. Rep. 862. §§ 107, 108] INTERSTATE TRANSPORTATION. 268 The Commission views with disfavor the maintenance of a lower rate for a longer haul than for a shorter one included within the longer, and the circumstances and conditions which are relied upon to justify it must not only be clearly shown to be substantially dissimilar from those prevailing at the nearer point, but also to clearly exercise a potent or controlling influence in making the lower rate." § 107. Similarity or Dissimilarity of Circumstances and Con- ditions is a Question of Fact. Whether there has been an undue or unreasonable preju- dice or preference, or whether the circumstances and con- ditions of carriage have been substantially similar or other- wise is a question of fact depending on the matters proven in each case;^ and the interests of the producing market, the consuming, market and the carriers are to be considered in determining whether upon the whole situation there is such dissimilarity of circumstances and conditions as justi- fies the rates in question.* On€ case can seldom be an exact precedent for another, for each traffic situation presents points of difference, and each complaint must be considered upon its own peculiar facts.' § 108. Jurisdiction of the Commission. 1J A. Authority of Commission to Eelieve Carriers from ' THE Operation of the Long-and-Shoet-Haul Clause. The Act provides that upon, application to the Interstate Commerce Commission, a carrier may, in special cases, after investigation by the Commission, be authorized to charge e Bovaird Supply Co. v. A. T. & S. F. Ry. Co. et al., 13 I. C. C. R. 56. 7 I. C. C. V. Alabama Midland Ry. Co. (1897), 168 U. S. 144; 18 Sup. Ct. Rep. 45; 42 L. ed. 414; Mo. Pac. Ry. Co. v. T. & P. Ry. Co., 31 Fed. Rep. 862. 8 City of Danville et al. v. Southern Ry. Co. et al. (1900), 8 I. C. C. R. 409, citing L. & N. R. Co. v. Behlmer, infra. 9 City of Danville et al. v. Southern Ry. Co. et al. (1900), 8. I. C. C. R. 409, citing L. & N. R. Co. v. Behlmer, infra. ^69 lONG-AND-SHOET-HAUL CLAUSE. [§ 109 less for longer than for shorter distances for the transporta- tion of passengers and property.'" The Commission is fur- ther authorized to prescribe from time to time the extent to which such designated common carrier may be relieved from the operation of the law.^^ Where the Act authorizes the Commission to permit ex- ceptions it does not authorize it to require exceptions.^^ t[b. authokity of commission to determine nature of Circumstances and Conditions. It is within the jurisdiction of the Commission to consider whether a railroad company transporting interstate freight, and charging a higher rate for a shorter than for a longer distance over the same line in the same direction, is doing it under substantially similar circumstances and conditions.^* If C. Commission no Authority to Order Eeduction in Eates to meet Market Competition. The Commission has no authority to order a reduction in rates to meet market competition, railroads are authorized to meet or not to meet competition as to them seems to their interest.^^ § 109. Carrier not. Required to make Application to Com- mission before Meeting Competition at the Distant Point. Where rates to the longer distance point are governed by competition which is actual and substantial in its effect upon rates, it is not necessary for the carrier to make application to the Interstate Commerce Commission for relief from the operation of the long-and-short haul clause of the Act, in order to entitle it to adjust its rates with reference to the dissimilarity of circumstances and conditions, including such 11 Act to Regulate Commerce. Section 4. 12 Ibid. 13 Thatcher v. Pitchburg R. R. Co. et al. (1887), 1 I. C. R. 356. 14 C. N. O. & T. k Ry. Co. v. i. C. C. (1895), 162 U. S. 184; 40 L. ed. 935; 16 Sup. Ct. Rep. 700 (Social Circle Case). 15 La Salle Co. v. M. C. Rd. Co. et al. (1909), 16 I. C. C. R. 149. § 110] INTERSTATE TEAN8P0RTATI0N. 270 competition, and to justify such rates in the courts when complained of." Thus the rule whether it be water com- petition, railroad competition or market competition, pro- vided it produces a substantial and material effect upon rate- making by creating dissimilarity of circumstances and con- ditions; and when such competition is shown it must be taken into consideration by the Commission and the Courts in cases arising upon complaint under the fourth section of the Act." §110. Competition at the Distant Point as Justifying a Lower Rate for the Longer Haul. Competition at the longer distance point is one of the most obvious and effective circumstances that make the condi- tions, under which a longer and shorter haul is performed, substantially dissimilar.^^ Where actual competition exists at the more distant point which does not obtain at the intermediate or nearer point, and where such competition has actually produced a lower 18 1. C. C. V. Alabama Midland Ry. Co. (1897), 168 U. S. 144; 18 Sup. Ct. Rep. 45; 42 L. ed. 414; L. & N. Rd. Co. v. Behlmer (1900), 175 U. S. 648; 20 Sup. Ct. Rep. 209; 44 L. ed. 309, reversing 83 Fed. Rep. 898; 28 C. C, A. 229, 42 U. S. App. 581, affirming 71 Fed Rep. 835, and refusing to enforce order of tbe Commission; Behlmer v. M. & C. R. R., 6 I. C. C. R. 257; 4 I. C. R. 520; E. T. V. & G. Ry. Co. et al. V. I. C. C. (1900), 181 U. S. 1; 45 L. ed. 719; 21 Sup. Ct. Rep. 516; I. C. C. V. A. T. & S. F. Rd. Co. (1892), 50 Fed. Rep. 295; D. G. H. & M. Ry. Co. V. I. C. C. (1896), 74 Fed. Rep. 803, 21 C. C. A. 103; I. C. C. V. W. & A. Rd. Co. et al. (1898), 88 Fed. Rep. 186, affirmed 93 Fed. Rep. 83, 35 C. C. A, 217, affirmed I. C. C. v. Clyde S. S. Co. et al., 181 U. S. 29; 45 L. ed. 729, 21 Sup. Ct. 512; refusing to enforce order of Commission in Rd. Com. of Ga. v. Clyde S. S. Co., 5 I. C. C. R. 324; 4 I. C. R. 120. 17 Dallas Freight Bureau et al. v. Austin & N. Rd. Co. et al. (1901), 9 I. C, C. R. 68, citing I. C. C. v. Alabama Midland R. Co., L. & N. R. Co. V. Behlmer and E. T. V. & G. R. Co. v. I. C. C. supra. 18 1. C. C. V. Alabama Midland Rd. Co. (1897), 168 U. S. 147; 42 L. ed. 414; 18 Sup. Ct. Rep. 45, affirming 74 Fed, Rep. 715, 21 C. C. A. 51; 41 U. S. App. 453 and 69 Fed. Rep. 227, refusing to enforce order of Commission; Board of Trade of Troy v. Alabama Midland Ry. Co., 6 I. C. C. R. 1; 4 I. C. R. 349. 271 LONG-AND-SHOET-HAtTL CLAUSE. [§ 111 rate at the more distant point which the carrier can not control and must meet to obtain a share of the business, neither the third nor the fourth sections of the Act to Regulate Commerce prohibits the disparity in rates at the shorter and longer-distance points, provided the longer-dis- tance competitive rate is remunerative and the shorter-dis- tance point rate is reasonable.^' § 111. Competition between Rail Carriers at the Distant Point. Competition between rival routes is a fact to be considered in determining whether property transported to a com- petitive point for less rates than are charged for property to an intermediate point on the same line is carried under "substantially similar circumstances and conditions," as that phrase is found in the fourth section of the Act to Regulate Commerce.^" Competition which is material arising from carriers who are subject to the Act to Regulate Commerce, can be taken into consideration for the purpose of determining the ex- istence of a dissimilarity of circumstances and conditions within the meaning of section 4 of the Act, although that competition does not originate at the initial point of the traffic." 19 Mayor, etc., of Wichita v. A. T. & S. F. Ry. Co. at al. (1903), 9 I. C. C. R. 534; citing I. C. C. v. Alabama Midland Rd. Co., supra; L. & N. Rd. Co. V. Behlmer, supra; E. T. V. & G. Rd. Co. v. I. C. C, supra; I. C. C. v. L. & N. Rd. Co., infra. 20 1. C'. C. V. Alabama Midland Rd. Co. et al. (1897), 168 U. S. 144; 42 L. ed. 414; 18 Sup. Ct. Rep. 45; I. C. C. v. Clyde S. S. Co. et al. (1900), 181 U. S. 29; 49 L. ed. 729; 21 Sup. Ct. 512; Rock Hill Buggy Co. V. Southern Rwy. Co. et al. (1905), 11 I. C. C. R. 233; I. C. C. V. C. G. W. Ry. Co. et al. (1907), 209 U. S. 108; 52 L. ed. 705, 28 Sup. Ct. 493, affirming 141 Fed. Rep. 1003. 21 L. & N. Rd. Co. et al. v. Behlmer (1899), 175 U. S. 648; 44 L. ed. 309; 20 Sup. Ct. Rep. 209, reversing 83 Fed. Rep. 898; 28 C. C. A. 229; 42 U. S. App. 581; affirming 71 Fed. Rep. 835, and refusing to enforce order of Commission, Behlmer v. M. & C. R. R., 6 I. C. C. R. 257; 4 I. C. R. 520. § 112] INTERSTATE TKANSPORTATION. 273 § 112. Competition between Railways does not, in and of itself, create the Dissimilarity of Circumstances and Conditions. -In the ease of I. C. C. v. Alabama Midland Bd. Go.,^^ the Supreme Court of the United States said: "In order fur- ther to guard against any misapprehension of the scope of our decision it may be well to observe that we do not hold that the mere fact of competition, no matter what its char- acter or extent, necessarily relieves the carrier from the re- straints of the third and fourth sections, but only that these sections are not so stringent and imperative as to exclude in all cases the matter of competition from consideration in determining the questions of 'undue or unreasonable pref- erence or advantage,' or what are 'substantially similar cir- cumstances and conditions.' The competition may in some cases be such as, having due regard to the interests of the public and of the carriers, ought justly to have effect upon the rates, and in such cases there is no absolute rule which prevents the Commission or the Courts from taking that matter into consideration." It is apparent from the above quotation that what the court held was, not that competition between railways in and of itself created dissimilar circumstances and conditions, but that it was one factor which might be, and perhaps ought to be, taken into account in determining that question, the question is still largely one of fact, and is in each particular instance whether, in view of all the facts surrounding that individual instance, the circumstances and conditions are so dissimilar as to justify the greater charge for the shorter distance.^'' However, a genuine competition which results in a re- duction of freight rates negatives any unlawful intent on the part of the carrier, and leaves open only the question as to whether the rates, as estimated, work an undue preference or discrimination.^* 22 See note 18, supra. 28 George Tileston Milling Co. v. Northern Pacific Ry. Co. (1899), 8 I. C. C. R. 346. 24 I. C. C. V. C. G. W. Ry. Go. et al., supra. 373 LONG-AND-SHORT-HAUL CLAUSE. [§ 113 § 113. Water Competition at the Distant Point as a Justification. It is well established that water competition at a given point may render the circumstances substantially dissimilar and justify a discrimination against points where such com- petition is not controlling. If, however, water competition at a given point compels a carrier to discriminate in rates against a point not so favorably situated, the amount of the discrimination must not be greater than the dissimilarity of the circumstances demand. ^^ One transportation line can not be said to meet the com- petition of another transportation line for the carriage of traffic from any particular locality unless the latter line could and would perform the service alone if the former did not undertake it. Water competition, to justify the greater charge for the shorter distance, must be competition in transportation to the longer-distance point as to freight which, if not carried to such longer-distance point by the rail carriers, could reach such destination by water transpor- tation.^' Water competition, to justify higher shorter-distance charg- es under the fourth section of the Act, must be actual com- petition for the transportation involved, and such as to in- dicate the rate by rail.^' However, a railroad rate so low as to drive water com- petition out of existence can not be justified by showing 25 Planters Gin & Compress Co. v. Y. & M. V. Rd. Co., 16 I. C. C. R. 131; Darling & Co. v. B. & O. Rd. Co. et al., 15 I. C. C. R. 79; Lehman, Higginson & Co. v. Southern Pacific Co. et al., 3 I. C. R. 80; Shippers Union of Phoenix v. A. T. & S. F. Ry. Co. et al., 9 I. C. C. R. 250. 27 Fewell V. R. & D. Rd. Co. 7 I. C. C. R. 354, citing James & M. Buggy Co. V. C. N. O. & T. P. R. Co., 4 I. C. C. R. 744; 3 I. C. R. 382; C. N. O. & T. P. R. Co. V. I. C. C. ("Social Circle Case"), 162 U. S. 184, 40 L. ed. 935; 16 Sup. Ct. 700; Board of Trade of Chattanooga v. B. T. V. & G. R. Co., 5 I. C. C. R. 546; 4 I. C. R. 213. 28 Brewer & Hanleiter v. L. & N. Rd. Co. et al. (1897), 7 I. C. C. R. 224. Eegulation — 18. § 114] INTERSTATE TRANSPORTATION. 274 the possibility of water competition; the law permits rail- roads to meet, not to extinguish, such competition.^' Where, however, a well sustained water competition exists that takes a substantial portion of the tonnage and could readily prepare to take it all, if left in undisturbed control of the traffic, the rail line, without necessarily subjecting itself to charges of discriminating against other localities, may adjust its rates so as to fight for the whole tonnage the moment it really feels the effect and influence of its competi- tor's rates; it need not wait until the water line is pre- pared to take half the tonnage.^" A carrier may make low rates to certain points for the pur- pose of meeting water competition at those points, and may make somewhat higher rates to intermediate points at which .the same competition does not exist, but obviously its higher rates to such intermediate point can not reasonably exceed its rate to the competitive point, plus its local rate back from that point to the intermediate point.'^ § 114. Eight of Carrier to Elect Whether it will meet Water Competition. While water competition may be availed of by a carrier as its justification and excuse for rates that are lower than would otherwise be lawful, the existence of such competition is not in itself a ground upon which a shipper may demand a lower rate. It is the privilege of a carrier, in its own interest, to meet such competition, but it is not the privi- lege of a shipper to demand less than normal rates because of the existence of a competition which the carrier in its own behalf does not choose to meet.'^ While, however, the carrier may in the first instance settle its policy in this respect it must act under certain limitations. It can not be permitted to compete at one point and decline 28 Brewer & Hanleiter v. L. & N. R. Co., 7 I. C. C. R. 224. 30 Butte Mfg. Co. et al. v. C. & 0. Rd. Co. et al., 15 I. C. C. R. 351. 31 Valley Flour Mills v. A. T. & S. F. Ry. Co. et al., 16 I. C. C. R. 73. 32 Lindsay Bros. v. B. & 0. S. W. R. R. Co. (1909), 16 I. C. C. R. 6; Darling & Co. v. B. & 0. Rd. Co. et al., 15 I. C. C. R. 79. ■^'''o LONG-AND-SHOKT-HAUL CLAUSE. [§ 115 to compete at another, where all conditions are the same; nor. should it, ordinarily, be allowed to compete one day and decline to compete the next. The public has the right to require equal and uniform treatment within the bounds of reason. Cases might arise therefore, where the Com- mission would require the continuance of a rate established to meet such competition, but the Commission does not favor the existence of such rates or rate situation. A water port is entitled to whatever advantages it can obtain through transportation by water, but its location does not entitle it to lower rates by rail, and' although such preference may lawfully be accorded by a carrier in the protection of its own interests it should not be required except in case where manifest wrong would otherwise result. ^^ § 115. Principles Governing Right of Carrier to meet Competition. It follows that whilst the carrier ' may take into con- sideration the existence of competition as the producing cause of dissimilar circumstances and conditions, its right to do so is governed by the following principles: First— The absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about, though, in the nature of things, this latter consideration may in many cases be involved in the determi- nation of whether competition was such as created a substan- tial dissimilarity of condition. Second — That the competition relied upon be not artificial or merely conjectural, but ma- terial aiid substantial, and thereby operating on the question of traffic and rate-making, the right in any event to be only enjoyed with due regard to the interest of the public, and giving full weight to the benefits to be conferred on the place whence the traffic moved as well as those to be derived by the locality to which it is to be delivered.^* 33 Darling & Co. v. B. & O. Rd. Co. et al., 15 I. C. C. R. 79. 34 L. & N. Rd. Co. et al. v. Behlmer (1899), 175 U. S. 648; 44 L. ed. 309, 20 Sup. Ct. 209; Marten v. L. & N. Rd. Co., (1903), 9 1. C. C. R. 581; Planters Gin & Compress Co. v. Y. & M. V. Rd. Co., 16 I. C. C. R. 131. §§ 116-118] INTERSTATE TRANSPOETATION. 276 § 116. Discrimination in Favor of Competitive Points not Undue or Unjust. The discrimination in favor of competitive points on ac- count of competition which compels a reduction of rates to those points below the rates charged for shorter distances is not an undue or unjust discrimination prohibited by sec- tion 3 of the Act to Regulate Commerce.^^ The Supreme Court in case of East Tennessee, Virginia & Georgia, Ry. Go. et al. v. I. G. G.,^" said: "Competition which is real and substantial and exercises a potential influ- ence on rates to a particular point, brings into play the dis- similarity of circumstances and conditions prescribed by the statute, and justifies the lesser charge to the more distant and competitive point than to the nearer and noncompetitive point, and the right is not destroyed by the mere fact that incidentally the lesser charge to the competitive point may seemingly give a prjeference to that point and the greater rate to the noncompetitive point may apparently engender a discrimination against it." § 117. Charging Same Rate to Longer as to Shorter Distance. Charging the same aggregate rates on like traffic for longer and shorter distances over the same line in the same direction, where the greater includes the lesser distance, does not contravene the provisions of the long-and-short clause of the Act." §118. Possibility of Competition at the Intermediate Point. The possibility of competition arising at a particular point 35 I. C. C. V. Clyde S. S. Co. et al. (1900), 181 U. S. 29; 45 L. ed. 729, 21 Sup. Ct. 512, affirming 93 Fed. Rep. 83 and 88 Fed. Rep. 186, refusing to enforce order of Commission in Rd. Commission v. Clyde S. S. Co., 5 I. C. C. R. 324; 4 I. C. R. 120. 36 Bast Tennessee V. & G. Rd. Co. v. I. C. C. (1900), 181 U. S. 1; 45 L. ed. 719; 21 Sup. Ct. Rep. 516, see also Chamber of Commerce of Chattanooga v. Southern Railway Co. et al., 10 I. C. C. R. 111. ST Milk Producers' Assn. v. D. L. & W. R. Co. (1897), 7. I. C. C. R. 92. 377 LONG-AND-SHORT-HAUl CLAUSE. [§§ 119-121 does not render freight rates to that point, though higher than those for a longer haul to a point where competition prevails, obnoxious to the prohibition of the Act against a greater charge for a shorter than for a longer haul under substantially similar circumstances and conditions.''* § 119. Demurrage Charges must not be included in the Higher Charge. The prohibition against making a greater charge for the shorter than the longer haul, is based on distance and relates to the actual transportation charges and not to demurrage charges which are in the nature of penalties for storage in the cars of the carrier.^' If, however, such demurrage charges when added to the transportation rates result in greater aggregate charges in certain eases than in other eases involving longer hauls this may constitute an undue preference as between locali- ties under section 3 of the Act."" § 120. Carriers must not Handle Long Haul Traffic at a Loss. Where the carrier cannot meet a competitive rate at the long-distance point without transporting the merchandise at less than cost of transportation, and therefore without bring- ing about a deficiency, which would have to be met by in- creased charges on other business, it cannot be allowed to meet such rate, since to permit it to do so would bring about an unjust discrimination and a disregard of the public in- terest.*^ § 121. Rat© must be Considered as an Entirety. The question of a greater charge in the aggregate for a 38 1. C. C. V. L. & N. Rd. Co. (1902), 190 U. S. 273; 47 L. ed. 1047, 23 Sup. Ct. 687. 39 Pennsylvania Millers' State Assn. v. P. & R. Ry. Co. et al., 8 I. C. C. R. 531. *o Ibid. *i East Tennessee, Virginia & Georgia Ry. Co. v. I. C. C. (1901), 181 U. S. 1; 21 Sup. Ct. Rep. 516; 45 L. ed. 719; San Bernardino Board of Trade v. A. T. & S. F. Rd. Co. et al. (1890), 4 I. C. C. R. 104; 3 I. C. R. 138; Merchants Union of Spokane Falls v. Northern Pacific Rd. Co. et al. (1892), 5 I. C. C. R. 478; 4 I. C. R. 183. §§ 122^124] INTERSTATE TRANSPORTATION. 278 shorter than for a longer distance over the same line in the same direction is not to he determined by the portions al- lotted to the different roads on the line, but by the rate as an entirety.^ ^ §122. Meaning of the Word "Line." The word "line" as used in the statute means a physical line, not a mere business arrangement between carriers.*' §123. Long-aud-Short Haul Provisions of State Statute not Applicable to Interstate Traffic. An unconstitutional regulation of interstate commerce is made by a State constitution (in this case Kentucky), pro- hibiting common carriers from charging more for a shorter than for a longer haul so far as its provisions extend to a long haul from a place outside of to one within the State, and the shorter haul between points on the same line in the same direction both of which are within the State, as the carrier is thus compelled to adjust, regulate or fix his inter- state rates with some reference to his rates within the State." A State statute which in its direct result regulates the interstate transportation of a single individual carrier vio- lates the commerce clause of the United States Constitu- tion.*^ § 124. Examples of the Application of the Long-and-Short Haul Clause. 1[A. Where no Violation of the Statute Exists. (a) Bates on classified freight from eastern points through Troy, Ala., to Montgomery, Ala., were lower than rates on like kind of traffic from the same points to Troy. On com- *z Imperial Coal Co. et al. v. P. & L. E. Rd. Co. et al., 2 I. C. R. 436. 43 Daniels v. C. R. I. & P. Ry. Co. et al. (1895), 6 I. C. C. R. 458; Vermont State Grange v. B. & L. Rd. Co. et al. (1887), 1 I. C. C. R. 158; 1 C. R. 500. 44 L. & N. Rd. Co. V. Eubank (1901), 184 U. S. 27; 46 L. ed. 416, 22 Sup. Ct. 277. 45 Ibid. 279 J.ONG-AND-SHOKT-HAUL CLAUSE. [§ 124 plaint that higher rates to Troy than to Montgomery were unlawful under section 4 of the Act. Held, That competition at Montgomery made the circumstances and conditions at that point substantially dissimilar to those at Troy; that higher rates to Troy than to Montgomery were unlawful.*® (b) Rates on traffic from Eastern points to Chattanooga, Tenn., were higher than rates from the same points through Chattanooga to Nashville. The lower rates in effect at Nash- ville resulted from the action of the L. & N. Rd. Co. in ex- tending to that point, via its line from Cincinnati, the lower rates prevailing in trunk-line territory. As the roads re- sponsible for the Nashville rates were subject to the Act, the Commission decided that traffic at Chattanooga could not be carried at higher rates than those in effect through Chattanooga to Nashville, without an order for relief from the operation of the Act. The Federal Courts refusing to enforce the order of the Commission, held that competition at Nashville, of controlling force, produced in and of itself the dissimilarity of circumstances and conditions contem- plated by the Act; that the carriers had the right of their own motion to consider such competition in charging lower rates to that point than those in effect to Chattanooga.*^ (c) Rates from Ohio River points to Atlanta, Ga., were lower than rates to intermediate points on the several lines reaching Atlanta. The Atlanta rates were controlled by active competition, while rates to the intermediate points were not materially affected by competition and were just and reasonable in themselves. The Atlanta rates were not unreasonably low. Held, That competition at Atlanta ren- dered the circumstances and conditions attending transpor- tation to that point substantially dissimilar to those attend- ing transportation to the intermediate points ; that the higher rates to such intermediate points were not unlawful under section 4 of the Act.*' (d) Rate on hay from Memphis, Tenn., to Summerville, 46 See note 18. supra. 47 E. T. V. & G. Rd! Co. V. I. C. C, supra. 48 I. C. C. V. Clyde S. S. Co., supra. § 124] INTERSTATE TEANSPORTATION. 380 S. C, was 28 cents per 100 lbs.; from Memphis through Summerville to Charleston, S. C, was 19 cents per 100 lbs. The lower rate to Charleston was alleged by the carriers to be governed by competition of various mar- kets, and lines leading therefrom to supply that point. The Commission declined to consider such competition as an excuse for a departure from the rule of section 4 of the Act and decided that any higher rate to Summerville than to Charleston was unlawful without a relieving order under the proviso clause of that section. Held, That com- petition, whether between Memphis and Charleston, or be- tween other supply markets and Charleston, should have been considered by the Commission in determining whether the higher rate to Summerville was unlawful.*' (e) The rates from Cincinnati, Ohio, to New Orleans, La., located at the mouth of the Mississippi River, are lower than the rates to Meridian, Miss., an intermediate point almost 200 miles north of New Orleans. The lower rates at such long-distance point are justified by the water com- petition at that point which is not present at Meridian. It should be noted, however, that the rate to the intermediate point must not exceed the rate to the competitive point, plus the local rate back from that point to the intermediate point. (f) The transcontinental rates from the Atlantic seaboard and interior eastern points to the Pacific coast terminals, such as San Francisco, Los Angeles, Seattle, Portland, Tacoma, etc., are produced by the competition of water carriers between those points which operate either to Colon on the Isthmus of Panama and thence via the Panama Railroad to the Pa- cific coast and thence via steamer to destination, or by con- tinuous steamer carriage around South America via the Straits of Magellan. This water competition not only limits the rates which are now in efiEect from Atlantic coast points to Pacific coast points, but the existence of this competition, especially in view of approaching completion of the Panama Canal, must be a dominant factor in dejtermining both the 49 See note 21, supra. 281 LONG-AND-SHOET-HAUL CLAUSE. [§ 124 present rates and the future policy of transcontinental rail- roads. TI B. Cases in which Statute is Violated. (a) Rate on carriages from Cincinnati, Ohio, to Social Circle, Ga., was $1.37 per 100 lbs.; from Cincinnati, Ohio, through Social Circle to Augusta, Ga., the rate was $1.07 per 100 lbs. The lower rate to Augusta was defended on the ground of competition via Charleston and Savannah of water lines extending from Baltimore and New York. Held^ That water competition, in order to justify lower rates to a long-distance point must relate to traffic which if not carried to the long-distance point by defendants, could reach such point by water transportation; that competition from north- ern markets was therefore no excuse for charging a lower rate to Augusta than to Social Circle.^" (b) The rate on lump coal from Corona, Ala., to Pela- hatehie. Miss., was $2.50 per ton; from Corona via Pela- hatchie to Jackson, Miss., the rate was $1.80 per ton. The lower rate to Jackson was defended on the ground of compe- tition by carriers engaged in transporting coal to that point from mines other than those at Corona. Held, That one transportation line could not be said to meet the competition of another for the carriage of traffic from a particular lo- cality unless the latter line could and would perform the service alone unless the former did not; that since the car- riers transporting coal to Jackson were all subject to the Act, competition at that point could not create such sub- stantial dissimilarity of circumstances and conditions as would justify the lower rate for the longer distance.^^ 50 James & Mayer Buggy Co. v. C. N. O. & T. P. Ry. Co. et al. (1891), 4 I. C. C. R. 744; 3 I. C. R. 682, petition to enforce order of Commission denied; I. C. C. v. C. N. O. & T. P. Ry. Co., 56 Fed. Rep. 925; decree of Circuit Court reversed, 13 U. S. App. 730; 162 U. S. 184; 16 Sup. Ct. Rep. 700; 40 L. ed. 935. 51 See note 27, supra. CHAPTER IX. BILLS OF LADING AND CONTRACTS OF SHIPMENT. Section 125. Carriers receiving property for interstate transportation required by the Act to Regulate Commerce to issue Bill of Lading there- for. 126. Part of Bill of Lading relating to Freight Rate. 127. Allowance of rebate does not vitiate Bill of Lading. 128. Misleading and Unreasonable Rules and Regulations in Bills of Lading. 129. Bills of Lading over rail-and-water routes containing provisions affecting Marine Insurance. 130. Interstate Commerce Commission no power to prescribe form of Bill of Lading. 131. Uniform Bills of Lading. 132. Bills of Lading covering Export and Import Traffic. 133. "Through" Bills of- Lading. 134. Manner of Contracting for Transportation. 135. Contracts between Carriers and Shippers for Different Freight Rates than those published in Tariff. § 125. Carriers receiving Property for Interstate Transporta- tion required by the Act to Regulate Commerce to issue Bill of Lading therefor. The Act to Regulate Commerce (as amended June 29, 1906) provides "That any common carrier, railroad, or trans- portation company receiving property from a point in one State to a point in another State, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such prop- erty caused hy it or by any common carrier, railroad, or transportation company to which such property may be de- livered or over whose line or lines such property may pass, 282 283 BILLS OP LADING. [§§ 126-128 and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed."^ The above provision in the Hepburn Act of June 29, 1906, is what is commonly called the Carmack amendment. As to the constitutionality of that provision relating to the initial carrier's liability for any loss, damage, or injury to ship- ments, see under appropriate chapter. § 126. Part of Bill of Lading relating to Freight Rate. The material part of a bill of lading on the subject of the freight rate is that which fixes the rate per 100 pounds. Weighing the freight is purely a mechanical process and may be done at the point of shipment, or at the point of destination.^ § 127. Allowance of Rebate does not Vitiate Bill of Lading. There is nothing in the Interstate Commerce Act which vitiates bills of lading, or which, by reason of an allowance of rebates, if actually made, would invalidate a contract of affreightment, or exempt a railroad company from liability on its bills of lading. The law makes such agreements void as to the rebate, etc., but does not make the contract of affreightment otherwise void.^ § 128. Misleading and Unreasonable Rules and Regulations in Bills of Lading. It is a mischievous practice for carriers to publish on their bills of lading, rules and .regulations which are misleading, unreasonable, or incapable of literal enforcement in a Court of Law.' 1 Act, Section 20. = Baird v. St. L. I. M. & S. R. Co. (1890), 18 Fed. Rep. 592; 4 I. C. R. 422. 3 Merchants' Cotton Press Co. v. N. A. Insurance Co., 151 U. S. 368; 14 Sup. Ct. Rep. 367; 38 L. ed. 195. 4 In the Matter of Released Rates, 13 I. C. C. R. 550. §§ 129-131] INTEESTATE TBANSPOKTATION. 284 § 129. Bills of Lading over Rail-and- Water Routes containing Provisions affecting Marine Insurance. Unless a railway forming a part of a lake-and-rail route see fit to hold itself responsible for losses arising from perils of the sea, it should tender to the public a transportation contract which leaves shippers free to arrange for their own marine insurance.^ The bill of lading should plainly state the liability assumed by the carrier. Any other course of business will inevitably result in giving the shipper in many eases a defective contract." As regards the marine risk of carriers, the Commission, ruled that carriers are required to tender to shippers a bill of lading which is consonant with the provisions of their tariff in this respect.' § 130. Interstate Commerce Commission no Power to pre- scribe Form of Bill of Lading. The Interstate Commerce Commision has no power to adopt a particular form of bill of lading to be used by carriers in interstate commerce.' § 131. Uniform Bills of Lading. "The proceeding relating to the uniform bills of lading was originally instituted before the Interstate Commerce Commission in November, 1904, upon petition of the Illinois Manufacturers' Association and other trade and commercial organizations in the Official Classification territory, complain- ing of the proposed enforcement by the carriers in that terri- tory of certain changes in the so-called uniform bill of lading then generally used. After hearing, the Commission suggested the appointment by carriers' and shippers repre- sented of a joint committee to devise a suitable form of bill of lading and report the same to the Commission. Such 5 Wyman, Partridge & Co. v. B. & M. R. R. Co., 13 I. C. C. R. 258. 6 Ibid. 7 Wyman, Partridge & Co. v. B. & M. R. R. Co., 15 I. C. C. R. 577. 8 Re Bills of Lading, 14 I. C. C. R. 346; also Twenty-Second Annual Report of I. C. C. (1908). 385 BILLS OF LADING. [§ 131 a joint committee was appointed and after numerous con- ferences at which matters in question were given careful consideration, reported to the Commission on June 14, 1907, the proposed uniform bill of lading. The proceeding was then enlarged to bring in all carriers in the country and afford an opportunity for hearing to all interested shippers. At such hearing a number of comparatively unimportant pro- visions of the bill were the subject of controversy, but the difference upon such points were substantially eliminated by informal conferences and extensive correspondence, and ac- cordingly on June 27, 1908, the Commission issued a report recommending the adoption of the bill of lading which had been agreed to by the conflicting interests represented before the Commission. "The Commission did not undertake to prescribe and order the adoption of the bill of lading recommended, be- cause it was convinced that such an order would be beyond its authority. The bill was adopted by all lines in the Offi- cial Classification Territory on November 1, 1908, and lead- ing lines in other parts of the country speedily put the bill into use.'" The uniform bills of lading as adopted consist of two forms or kinds; one to be used for '"order consignments," and the other for "straight consignments," as those terms are understood in commercial dealings. They differ only on the face side, the conditions printed on the back being the same in both cases. These differences will appear upon in- spection of the reproductions of the bills given below. The main point in this connection is that the "order" bill pos- sesses a certain degree of negotiability while the "straight" bill is non-negotiable and is so stamped upon its face. Moreover, and this is a matter of consequence, the "order" bill of lading by conditions specified therein is required to be surrendered and properly indorsed upon or before delivery of the property to the consignee. The bill of lading in ac- cordance with its terms is required to be signed by the ship- 9 Re Bills of Lading, 14 I. C. C. 346. § 131] INTERSTATE TEANSPOKTATION. 286 per and agent of the carrier issuing the same; space being provided for that purpose. The prescribed size of the bill of lading is eight and one- half inches wide by eleven inches long. The two forms are distinguished by different colors; "Order" bills of lading are printed on yellow paper for convenient distinction from bills of lading covering "straight" consignments, which are printed on white paper. Bills of lading other than those covering "order" consign- ments are stamped "Not Negotiable." The detail arrangement respecting other matters that cus- tomarily appear on the face of bills of lading, such as the name of destination, car numbers and initials, routing, de- scription of articles, weights, etc., was left to be prescribed by the uniform bill of lading committee. Order Bill of Lading — Original. "Eeceived, subject to classifications and tariffs in effect on the date of issue of this original bill of lading, at 190 . . from the property described below, in apparent good order, except as noted (contents and con- dition of contents of packages unknown), marked, consigned, and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any por- tion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions. Whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns. "The surrender of this original bill of lading, properly indorsed, shall be required, before the delivery of the prop- erty. Inspection of property covered by this bill of lading 287 BILLS .OF LADING. [§ 131 will not be permitted unless provided by law or unless per- mission is indorsed on this original bill of lading or given in writing by the shipper." NOTE. — In connection with the name of the party to whom the shipment is consigned the word "Order of" shall prominently appear in print, thus: ' ' Consigned to order of " Bill of Lading — Original — Not Negotiable. "Received, subject to classifications and tariffs in effect on the date of issue of this original bill of lading at 190. . from the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, con- signed, and destined as indicated below, which said com- pany agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back thereof) and which are agreed to by the shipper and accepted for him- self and his assigns." NOTE. — Bills of lading other than those covering "order" consignments shall be stamped "not negotiable." Conditions. The following conditions appear on the hack of the hill of lading: "Section 1. The carrier or party in possession of any of the prop- erty herein descrijjed shall he liable for any loss thereof or damage thereto, except as hereinafter provided. "No carrier or party in possession of any of the property herein described shall be liable for any loss thereof, damage thereto or delay caused by act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner, or for differences in weights of grain, seed, or other commodities caused by natural shrinkage or discrepancies in elevator weights. For loss, damage, or delay caused by fire occurring after forty-eight hours (exclusive of § 131] INTERSTATE TEANSPOKTATION. 388 legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier's liability shall be that of warehouseman only. Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon request of the shipper, owner, or party entitled to make such request; or resulting from a defect or vice in the property or from riots or strikes. When in accordance with general custom on account of the nature of the property, or when at the request of the shipper the property is transported in open cars, the carrier or party in possession (except in case of loss or damage by fire, in which case liability shall be the same as though the property had been carried in closed cars) shall be liable only for negligence, and the burden to prove freedom from such negligence shall be on the carrier or party in possession. "Sec. 2. In issuing this bill of lading this company agrees to trans- port only over its own line, and except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line. "No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such lia- bility imposed. "Sec. 3. No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon. Every carrier shall have the right in case of physical necessity to forward said property by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail. "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid), at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classifi- cation or tariffs upon which the rate is based, in any' of which events such lower value shall be the maximum amount to govern such compu- tation, whether or not such loss or damage occurs from negligence. "Claims for loss, damage, or delay, must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable. "Any carrier or party liable on account of loss of or damage to any of said property (shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance. "Sec. 4. All property shall be subject to necessary cooperage and baling at owner's cost. Each carrier over whose route cotton is to be transported hereunder, shall have the privilege, at its own cost and 289 BILLS OP r.ADING. [§ 131 risk, of compressing the same for greater convenience in handling or forwarding, and shall not be held responsible for deviation or unavoid- able delays in procuring such compression. Grain in bulk consigned to a point where there is a railroad, public, or licensed elevator, may (unless otherwise expressly noted herein, and then if it is not promptly unloaded) be there delivered and placed with other grain of the same kind and grade without respect to ownership, and if so delivered shall be subject to a lien for elevator charges in addition to all other charges hereunder. "Sec. 6. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner's risk and without liability on the part of the car- rier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. "The carrier may make a reasonable charge for detention of any vessel or car, or for the use of tracks after the car has been held forty- eight hours (exclusive of legal holidays), for loading or unloading, and may add such charge to all other charges hereunder and hold such property subject to a lien therefor. Nothing in this section shall be construed as lessening the time allowed by law or as setting aside any local rule affecting car service or storage. "Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall be at owner's risk until the cars are attached to and after they are detached from trains. "Sec. 6. No carrier will carry or be liable in any way for any documents, specie, or for any articles of extraordinary value not specifically rated in the published classification or tariffs, unless a special agreement to do so and a stipulated value of the articles are indorsed hereon. "Sec. 7. Every party, whether principal or agent, shipping explosives or dangerous goods, without previous full written disclosure to the car- rier of their nature, shall be liable for all loss or damage caused thereby, and such goods may be warehoused at owner's risk and ex- pense or destroyed without compensation. "Sec. 8. The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery. If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped. "Sec. 9. Except in case of diversion from rail to water route, which is provided for in section 3 hereof, if all or any part of said property is carried by water over any part of said route such water carriage shall be performed subject to the liabilities, limitations and exemptions provided by statute and to the conditions contained in the bill of lad- ing not inconsistent with such statutes or this section, and subject also to the condition that no carrier or party in possession shall be liable for any loss or damage resulting from the perils of the lakes, sea, or other water; or from explosion, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery or appurtenances; Eegulation — 19. §§ 132, 133] INTERSTATE TEANSPOKTATION. 290 or from collision, stranding, or other accident of navigation, or from prolongation of voyage. And any vessel carrying any or all of the property herein described shall have the liberty to call at inter- mediate ports, to tow and be towed, and assist vessels in distress, and to deviate for the purpose of saving life or property. "Sec. 10. Any alterations, additions or erasure in this bill of lad- ing which shall be made without an indorsement thereof hereon, signed by the agent of the Carrier issuing this bill of lading, shall be without effect, and this bill of lading shall be enforceable according to its original tenor." The above uniform bills of lading were designated for use in connection with the movement of miscellaneous freight and general merchandise, and as a substitute for the bills which were in use before the adoption of the new bills. They are not intended to take the place of special bills of lading_ which are issued on particular commodities of such a nature or so handled as to require exceptional provisions, such as livestock, for example, and perhaps perishable property. In short, the bills were proposed as uniform or standard bills, so to speak, to be used in connection with freight articles generally, except such as were or ought to be carried under special conditions.^" § 132. Bills of Lading covering Export and Import TraflSc. Export and import traffic may be forwarded under through bills of lading but such through billing must clearly separate the liability of the inland carrier or carriers and of the ocean carrier, and must show the tariff rate of the inland carrier or carriers.^^ Carriers handling export and import traffic under through bills of lading strictly observe this ruling of the Commission and such bills of lading contain two separate sets of con- ditions ; one covering the inland carrier or carriers ' liabilities, and the other the marine risk. §133. "Through" Bills of Lading. The Act to Regulate Commerce provides that any common carrier, railroad or transportation company receiving prop- 10 Re Bills of Lading, 14 I. C. C. 346. 11 Rule 86 Tariff Circular 15-A; Rule 46 Tariff Circular 16- A. 291 BILLS OP LADING. [§ 133 erty from a point in one State to a point in another State shall issue a receipt or bill of lading therefor.^^ "Through" bills of lading on some commodities, especially cotton, are an important facility in their transportation as now conducted. Drafts drawn with such bills of lading attached are a basis of credit. ^^ In fact, at the present time in a great many lines of business such as grain, produce, lumber, etc., these commodities are shipped on what are known as "To Order" bills of lading; the bill of lading being attached to the draft and handled through the banks. This method of transacting business has become a very potent factor in the commercial world. It is a well settled rule of commercial law that the transfer and delivery of a bill of lading is a symbolic transfer and delivery of the property for which it is a receipt. And thus by means of the bill of lading the property can be, and often is, either sold, or, as is more commonly the case, pledged as security for money advanced upon the faith of it. The transferee of the bill of lading vsdll, under these cir- cumstances, be entitled to delivery of the property from the carrier, especially if the bill has been drawn for delivery to the order of the consignee and by him indorsed or trans- ferred over to another. On the other hand the carrier, being bound to make de- livery to the rightful holder of the bill of lading as above stated, cannot usually be compelled to deliver the property except on production of that instrument. These qualities and features of bills of lading, and the use made of them in commercial transactions as security for advancements of money on discounts of drafts and notes, assimilate them somewhat to that class of commercial paper generally known as negotiable instruments. They are not, however, negotiable in the legal significa- tion of that word, implying the right of any bona fide holder, for value, to the property referred to in them. 12 Act, Section 20. • 13 Harwell et al. v. C. & W. Rd. Co. (1887), 1 I. C. R. 631. §§ 134, 135] INTEKSTATE TKANSPOETATION. 293 § 134. Maimer of Contracting for Transportation. Eailway companies may contract with sMppers for a single transportation or for successive transportations, sub- ject to a change of rates in the manner provided for in the Interstate Commerce Act.^* § 135. Contracts between Carriers and Shippers for different Freight Rates than those published in Tariff. See Section 251, post. " I. C. C. V. C. G. W. Ry. Co. et al. (1907), 209 U. S. 108; 52 L. ed. 705, 28 Sup. Ct. 493, affirming 141 Fed. Rep. 1003. CHAPTER X. WEIGHTS AND WEIGHING. Section 136. Rules prescribing Minima and Maxima Weights and Regulations afEecting same must be stated in Carriers' Schedules. 137. Right of Carriers to establish Minima Weights. 138. Duty of Carriers to furnish Cars capable of carrying Minimum Weight prescribed. 139. Duty of Carriers to establish Minima Weights consistent with the Loading Capacity of Cars. 140. Unreasonable in general for Carriers to make the Minimum Weight vary with the Size of the Car furnished. 141. Right of Carriers to fix as Minimum Weight the Marked Capacity of the Car, where the Nature of the TraflBc will Permit and the Attendant Circumstances Justify it. 142. Unreasonableness of Regulation fixing Different Minima Weights for Cars with and without Refrigeration Service. 143. Unreasonableness of a Rule or Regulation fixing a Higher Minimum Loading Requirement than the Practice of the Carriers governed by the Master Car Builders' Association rules will permit. 144. Minima Weights for Less-than-Carload Shipments. 145. Weights at Points of Origin and Destination considered. 146. Right of Initial Carriers to furnish any available Equipment, in the absence of a Definite Agreement with the Shipper, under a Local Any-Quantity Rate regardless of Tariffs of Connecting Lines. 147. Carriers charging for Weight Not Carried. 148. Assessing Freight Charges on purported Weights instead of the actual Weights of Shipments. 149. Allowance for Weight of Stakes, Racks, and Blocks on Plat and Gondola Cars. 150. Actual Scale Weights Conclusive and not Weights Marked on the Bill of Lading. 151. Right of Shipper to Rely upon Bill of Lading Weight when such Weight is ascertained at Point of Origin. 152. Billing Shipments at Net Weights. 153. Reweighing Shipments. 154. Not unlawful to charge an Increased Rate as a Penalty for load- ing Cars beyond a Specified Weight above the Marked Capacity of the Car. 293 §§136,137] INTERSTATE TRANSPORTATION. 394 Section 155. Light Loading of New Cars on First Trip. 156. Estimated Weights on Standard Packages. 157. Rules to govern where Different Capacity cars are furnished by the Carrier than ordered by the Shipper. 158. False Weighing and False Reporting and Billing of Weights of Shipments declared Illegal and Penalty therefor. 159. Overcharge account of Excess Weight. 160. Carload Minima applying in connection with Refrigeration Ser- vice. 161. General Regulations relating to movement of Traffic Recom- mended. §136. Rules Prescribing Minima and Maxima Weights and Regulations Affecting Same must be Stated in Car- rier's Schedules. See Section ^73, post. §137. Right of Carriers to Establish Minima Weights. Where a rate for carload shipments is relatively lower than the less-than-carload rate the reasonableness of a mini- mum carload weight to which the carload rate will apply is recognized as is also the desirable highest efficiency both in the movement and the loading of the ears.^ The more approved method is to charge a given rate per 100 pounds for any excess, rather than allow the shipper to load as much as he chooses in a car at a stated rate.^ A carrier has the right to establish a minimum on carload shipments as high as will permit the commodity to be safely carried without injury. There is no duty upon the carrier to establish this minimum at such an amount as the con- signee or purchaser decides is advantageous to him. In other words, the minimum should be established with relation to the capacity of the car and not to the needs or desires of the purchaser of the product.' A carload minimum for light and bulky articles like fur- 1 Administrative Ruling 77, Tariff Circular 15-A. 2 Leonard v. C. & A. Ry. Co.. 2 I. C. R. 599, 3 I. C. C. R. 241. s Ozark Fruit Growers' Association v. St. L. & S. F. R. Co. et al., 16 L C. C. R. 134. 295 WEIGHTS AND WEIGHING. [§ 138 niture should be such that the minimum can ordinarily be loaded, but the minimum is not necessarily unreasonable be- cause it occasionally happens that cars, although loaded to their full physical capacity, will not contain it.* §138. Duty of Carriers to Furnish Oars Capable of Carry- ing Minimum Weight Prescribed. A carrier in defining a carload and fixing the rate, should furnish a car adapted to carry properly the quantity desig- nated.° Where three connecting roads publish a joint tariff under which they hold themselves out to the public as prepared to transport commodities in carload lots of a certain minimum magnitude at a certain specified rate, such carriers are by- their tariffs allowed to charge no more than the rate upon such carload, no matter what equipment they may provide for its transportation, except as the tariff in specific terms provides certain minimum weights for carloads in cars of certain lengths or capacities.* The Commission decided that a tariff naming a rate per ton on a commodity and providing that the minimum carload weight shall be the marked capacity of the car gives the shipper the right to demand any car of recognized standard dimensions suitable for the carriage of that commodity. That if upon reasonable demand the carrier cannot supply a car of the particular size ordered, it is its duty never- theless, to accept the shipment and move it in any available car or cars applying the rate on the basis of the marked capacity of the car ordered.^ A carload rate and a minimum weight for a car of definite dimensions when lawfully published in the tariffs of a car- 4 Montague & Co. v. A. T. & S. F. Ry. Co. et al., 17 I. C. C. R. 72. 5 Rice, R. & W. V. W. N. Y & P. Rd. Co. (1888), 2 I. C. R. 298, 2 I. C. C. R. 289. 6 Pacific Purchasing Co. v. C. M. & St; P. Ry. Co. et al., 12 I. C. C. R. 549. 7 General Chemical Co. v. N. & W. Ry. Co. et al., 15 I. C. C. R. 349; affirming Pacific Purchasing Co. v. C. & N. W. Ry. Co. et al., 12 I. C. C. R. 549. § 139] INTERSTATE TEANSPOETATION. 396 rier constitutes an open offer to the shipping public to move their merchandise on those terms and it would be wholly un- sound in principle to permit the carrier to impose additional transportation charges on the shipper who ordered a ear of a capacity, length or dimensions specified in the tariffs, sim- ply because it is not provided with cars of the dimensions ordered. The obligation to carry the merchandise of ship- pers on the basis of the published rates and minimum weights, and to use whatever cars are available for that pur- pose, ought to have been covered in the published tariffs of the defendant carrier by proper rules to that effect; and their tariffs were unreasonable and unlawful in not con- taining such a provision at the time the shipments were made.' The above principles were afSrmed and made the basis of decision in a number of eases.' §139. Duty of Carrier to Establish MUnima Weights Con- sistent with the Loading Capacity of the Cars. By the Official Classification in 1908, rough qtiarried gran- ite, released to a value of 20 cents per cubic foot, was rated sixth class, with a minimum of 36,000 pounds. Building s^one of all kinds was classified at sixth class, and previous to August 1, 1907, the minimum on such stone was 30,000 pounds, but upon that date was advanced to 40,000 pounds, and the reasonableness of this advanced minimum was dis- puted. The building stones are ordinarily shaped and cut 8 Kaye & Carter Lumber Co. v. M. & I. Ry. Co. et al., 16 I. C. C. R. 285; affirmiiig Pacific Purchasing Co. v. C. & N. W. Ry. et al., 12 I. C. C. R. 549, and General Chemical Co. v. C. & N. W. Ry. Co., 15 I. C. C. R. 349. 9 E. Beggs V. Wabash R. R. Co., 16 I. C. C. R. 208; affirming Ameri- can Lbr. & Mfg. Co. V. Southern Paciiic Co. et al., 14 I. C. C. R. 561, and General Chemical Co. v. N. & W. Ry. Co., 15 I. C. C. R. 349; M. A. Hanna Coal Co. v. Northern Pacific Co. et al., 16 I. C. C. R. 289, affirm- ing General Chemical Company v. N. & W. Ry. Co., 15 I. C. C. R. 349; Kaye & Carter Lbr. Co. v. M. & I. Ry. Co. et al., 16 I. C. C. R. 285; see also Springer v. El Paso & S. W. Rd. Co. et al. (1909), 17 I. C. C. R. 322. 297 WEIGHTS AND WEIGHING. [§ 139 before being offered for transportation to fit the place which they are finally to occupy. They are generally boxed or crated and shipped upon flat or gondola cars. Qenerally strips are placed upon the car around the bottom of the stone to prevent slipping. The rules of the carrier pro- hibited the placing of one stone upon another. The testi- mony offered showed that the shippers had been unable to load upon the cars furnished them the minimum weight of 40,000 pounds for the reason that although the entire surface of the car was covered, the contents would still fall below that weight. The conclusion reached by the parties which was sanctioned by the Commission, was that the mini- mum weight on building stone should be fixed at 36,000 pounds for cars 36 feet in length and over, and at 3.0,000 pounds upon cars of less, than 36 feet.^" It is not reasonable that carriers unable to supply shippers with sufficient cars of large or average capacity should make such minimum loading requirement as cannot be practically complied with as to the smaller ears in order that they may obtain as much earnings from shipments therein as from those in the larger and superior cars.^^ Defendant collected ,from complainant 181^ cents per* 100 pounds on 60,000 pounds of wheat which was shipped in a car of 55,000 pounds maximum capacity from Kansas City, Kas., to Galveston, Texas, for export, and thus col- lected on 5,000 pounds more than the maximum loading ca- pacity of the car. Held, That the charge was unreasonable, that the tariff provisions of the defendants prescribing a minimum weight on all shipments of wheat for export from Kansas City to Galveston was unreasonable and in direct con- flict with the administrative rulings of the Commission." 3 c. E. Tayntor Granite Co. v. M. & W. River R. R. Co. et al., 14 I. C. C. R. 136; Jones Bros. v. Same, 14 I. C. C. R. 139, 140, 141, 142, 143, 144, 145; Lazarre & Barton Co. v. same, 14 I. C. C. R. 146. 11 Weimer & Rich v. C. & N. W. Ry. Co. et al., 12 I. C. C. R. 462. 12 J. Rosenbaum Grain Co. v. M. K. & T. Ry. Co. et al., 15 I. C. C. R. 499. §§ 140, 141] INTERSTATE TEANSPOETATION. 298 §140. Unreasonable in General for Carriers to make Mini- mum Weight Vary with the Si^e of the Oar Furnished. The Commission has ruled that minima carload weights which vary with the size of the car furnished by the carrier are unreasonable and unjust and operate to subject shippers to unjust discrimination and undue prejudice and disad- vantage; and that the carrier should establish a fixed, rea- sonable and just minimum carload weight.^* §141. Right of Carriers to fix as Minimum Weight the Marked Capacity of the Car, where the Nature of the TraflBc will Permit and the Attendant Circum- stances Justify it. A low rate on stone paving blocks was made to permit shippers to compete with producers in other States, upon the condition, which was expressed in the tariff, that the minimum carload weight should be the marked capacity of the car. The complainant knew the weight of a cubic foot of paving blocks and always counted the number placed in a car; never, specified the capacity of the car desired, although upon request could have had cars ranging from 40,000 to 100,000 pounds capacity; always had sufficient ma- terial to load to the marked capacity of the ear received, which could have been easily loaded to and beyond that capacity and from October 1, 1904, to November 30, 1907, found no difficulty in loading to the marked capacity of the car received. Upon this record and under the circum- stances the Commission decided that the regulation making the minimum carload weight the marked capacity of the car was not unjust and unreasonable.^* Actual weighing of the article or articles making up a carload is the only way by which their total weight can be ascertained to a certainty, but this practice is not always convenient, practical or even advisable and where a carload . 13 Suteei-n, Hunt & Co. v. I. D. & W. R. Co., 7 I. C. C. R. 255. " Georgia Rough & Cut Stone Co. v. Georgia Rd. Co. et al., 13 I. C. C. R. 401, based on White & Co. v. B. & O. S. W. R. R. et al., 12 I. C. C. R. 307. 399 WEIGHTS AND WEIGHING. [§§ 142, 143 minimum is established for a given commodity, careful con- sideration should be given to the character of the commodity as well as the ease or difficulty attendant upon estimating the amount required to make up the minimum weight. Most shippers do not have their own scales or the means of ascer- taining the actual weight put into a car and of necessity are required to depend somewhat upon an estimate of the amount they load and whether it equals the minimum weight or exceeds the maximum. "Where the commodity is not easily susceptible of a reasonably accurate estimated weight, there should be suflScient margin between the maximum and mini- mum weights to allow for reasonable variation between the estimated and actual weights.^' § 142. Unreasonablemess of Regulation Fixing Different Minima Weights for Cars with and without Re- frigeiration Service. In determining the reasonableness of the rates on peaches in crates from Atlanta and Macon, Ga., to Philadelphia, New York, Washington and Baltimore, the Commission decided that the practice of the railroads in using one minimum car- load requirement for transportation service other than re- frigeration and a different minimum carload for refrigeration service is unreasonable and unjust. The Commission also rules that the minimum on peaches in crates should not ex- ceed 20,000 pounds for a 36-foot car and 22,500 pounds for a 40-foot car.^" §143. Unreasonableness of a Rule or Regulation Fixing a Higher Minimum Loading Requirement than the Practice of the Carriers Governed by the Master Car Builders' Association Rules will Permit. In the case of the Cambria Steel Co. v. Great Northern By. Co.," the complainant shipped 1,560,340 pounds of steel rails 15 Georgia &c. Stone Co. v. Georgia R. Co., 13 I. C. C. R. 401. 16 J. Waxelbaum & Co. v. A. C. L. Rd. Co., 12 I. C. C. R. 178. " Cambria Steel Co. v. Gr. Nor. R. R. Co., 12 I. C. C. R. 466. § 144] INTEESTATE TKANSPOETATION. 300 from Johnstown, Pa., to Seattle, Wash., via the B. & 0. R. R. Co. and Great Northern R. R. Co., upon which freight charges were assessed under the rules prescribed by the Master Car Builders* Association, which were enforced by the initial car- rier, the B. & 0. R. R. Co. Under the rules of the Master Car Builders' Association, of which the B. & 0. R. R. Co. and Great Northern Ry. Co. are members, shippers are not permitted to load 60-foot steel rails on twin cars to a greater weight than 75 percent of the marked capacity of the cars. The aggregate marked capacity of the 40-foot ears used for these shipments was 2,100,000 pounds. The maximum per- mitted under the rules referred to would therefore be 1,575,- 000 pounds. On the arrival of the shipment at destination charges were exacted and collected by the defendant com- pany. The exaction of the additional charges at Seattle by the defendant company was predicated upon a rule established in the Transcontinental Freight Bureau "Westbound Tariff No. I. C. C. 376 which provided a minimum weight of 60,000 pounds on steel rails, carloads, unless the marked capacity of the car was less, in which the minimum weight would be the marked capacity of the car. The Commission held that the rules of the initial carrier, the B. & 0. R. R. Co., governing the loading of traffic of this character was made with re- gard to the rules and regulations prescribed by the Master Car Builders' Association, whereas the rule of the defend- ant company prescribed an arbitrary minimum without re- gard to the requirements of the Master Car Builders' Asso- ciation rule or regulation, to which association both roads were members and therefore awarded the complainant repara- tion to the extent of the overcharge. § 144. Minima Weights for Les8-than-Garloa,d Shipments. 1[A. In General. The various freight classifications have incorporated therein a rule to the effect that one hundred (100) pounds shall be the minimum weight upon which charges shall be assessed for a single package or a number of small packages con- 301 WEIGHTS AND WEIGHING. [§ 144 stituting one shipment. This is justified by the fact that on L. C. L. lots of freight, or small shipments, the same amount of clerical work is required, making of bills of lading, re- ceipts, expense bills, the duplication and copying of the same, rate calculation, transfer to connecting lines, notice to con- signee, receipt of freight, and divisions among the carriers conducting the transportation, whether it be a small ship- ment or one of several hundred pounds, the only difference being in the manual labor necessary in loading, transferring and unloading. By way of illustration, a shipment from Chicago by connecting lines to Jacksonville, Fla., would re- ceive attention from and would come under the jurisdiction of perhaps fifty different persons; and in case the package would become mislaid or stolen the tracing thereof would re- quire ordinarily no less than twenty-five written communica- tions. It appears also that small packages are much more liable to be lost, misplaced or stolen than larger ones and oc- casion more trouble in tracing; whereas the cost of clerical labor is as much for small as for large packages or shipments, and there is little, if any, difference in the cost of other labor.^* 1[B. TJneeasonable to impose a Minimum Weight greater THAN THE AcTUAL WbIGHT OF AN L. C. L. SHIPMENT WHEN SAME IS LOADED IN Cae WITH OtHBR FREIGHT. The defendant railroad in this case was in the practice of assessing charges on a minimum weight of 5,000 pounds on a package of plate glass loaded in a box car. The glass was covered with excelsior and packed in a hard maple box, which was nailed to the end, side, and bottom of the car into which it was loaded, together with other goods. The complainant admitted that minimum weight of 5,000 pounds on a shipment of plate glass so large that it must be loaded on a flat car was not unjust or unreasonable, but contended that it was unreasonable when glass was loaded in a box car in which other freight could be and was loaded. The Com- mission sustained the complainant in their contention and 18 Wrigley v. C. C. C. & St. L. Ry. Co. et al., 10 I. C. C. R. 412. § 145] INTERSTATE TEANSPOETATION. 302 ordered that the defendant railroad cease and desist from as- sessing charges based on such minimum weight.^' §145. Weights at Points of Origin and Destination Considered. In the ease of the Topeka Banana Dealers' Association et al. V. St. L. & 8. P. Co./" the complainants contended that the defendant's rule of assessing freig'bt charges on ship- ments of bananas based on weights ascertained at the point of origin instead of assessing same on the weight of the fruit at destination was unjust and unreasonable. The facts disclosed by the evidence adduced at the hearing showed that bananas are imported into the United States from two general sections of the semi-tropics. Those coming from Jamaica, Cuba and other West Indian Islands enter the eastern ports such as Savannah ajid Baltimore, while those coming from Central America enter the Gulf ports and the business is practically controlled by the United Fruit Com- pany. The boats of the fruit company reach New Orleans and Mobile and the bananas are there transferred to cars. To handle the business promptly the railroads have seven tracks which reach to the wharf, and the train of cars is "broken up" and placed on these different tracks, so that the loading may proceed rapidly. The ships are unloaded in some instances by an apparatus in the form of an endless belt with pockets, which passes down into the hold of the vessel and then out between the cars; the bananas being taken off of this belt as they pass the car into which they are to be loaded. One of the conditions on which sales are made by the Fruit Company is that "the certificate of the official weigher respecting the weight of the bananas or the fruit in any given cars, or shipment at the seaboard shall be final and conclusive on both parties;" that is, the Fruit Company and the consignee. The railroad charges are based upon the same weight. It becomes necessary therefore, 18 Bennett v. M. St. P. & S. St. M. Ry. Co., 15 I. C. C. R. 301. 20 Topeka Banana Dealers Ass'n et al. v. St. L. & S. F. R. Co. et al., 13 I. C. C. R. 620. 303 WEIGHTS AND WEIGHING. [§ 145 to have the ears correctly weighed, and to accomplish this two weighers are designated — one the public weigher o£ the City of New Orleans, holding a certificate from the New Orleans Board of Trade and bonded to that corporation, who represents the Fruit Company; the other is an appointee of the Southern Weighing Association who represents the rail- roads. The empty cars are taken to the scales and weighed singly, each car being uncoupled from the balance of the train when on the scales. The empty weig'ht is written on a tag and attached to the ear, which is then placed on the banana dock for loading. When loaded, the train is again moved to the scales and each car weighed separately, the net weight being thus ascertained. The scales are officially in- spected by the City of New Orleans. The complainants con- tended that the weights were not correctly ascertained at the point of origin. Considering this contention, the Commission stated that it could not perceive how it is practicable to more correctly weigh the fruit than by the method employed at New Orleans; and the fruit is weighed in the same man- ner at Mobile. How two weighers more independent of each other could be secured is not known; one is practically a direct representative of the consignor from whom the com- plainants purchased the fruit and the other is an official appointed by the Southern Weighing Association, of which the defendants are members. That w'hile it is possible that these weighers might be corrupted into making false returns, the same is practically true of the weighing at destination. The Commission stated that since the cars are destined to different points throughout the entire country it would be a practical impossibility for the railroads to have a repre- sentative at each unloading point. That it is true that cattle are weighed at destination rather than at the point of origin, but that this practice is based upon the same reasons that bananas are weighed at point of origin instead of destination. In both cases the weight is ascertained at the point where the ears are concentrated. Cattle originate at local points in the country where there are no scales and are practically § 146] INTERSTATE TEANSPOETATION. 304 all destined to great terminals, such as Omaha, Kansas City, St. Louis, Chicago, etc., where scales are to be found. §146. Right of Initial Carrier to furnish any Available Equipment in the Absence of a definite Agreement with the Shipper, under a Local Any-Quantity Bate regardless of Tariffs of Connecting Lines. In the case of /. G. Falls & Go. v. G., B. I. & P. By. et aW^ the complainant tendered to the Frisco, at Maiden in the State of Missouri, fifty bales of uncompressed cotton linters of the aggregate weight of 22,471 pounds for transportation to Minneapolis, Minn. There was no joint throu^ rate in effect for the transportation of cotton linters between the points named and charges were therefore assessed at the sum of the local rates based on St. Louis; the local rate from Maiden, Mo., to St. Louis was 25 cents per cwt., "any quantity" via the Frisco, while there was a joint rate in effect from St. Louis to Minneapolis of 26 cents per cwt., minimum weight, 24,000 pounds, via the Burlington and Rock Island. • The shipment was loaded at Maiden by the agent of the Frisco into two cars, putting 30 bales in a 40-ft. car and the remaining 20 bales into a 36-ft. car. This was made necessary by reason of the fact that they did not have on hand at Maiden at that time any larger car than the 40-ft. car to take care of the movement. The bill of lading that was . at once delivered to the complainant by the agent of the Frisco gave them immediate notice that the shipment had been loaded into two cars, but they took no action of any kind. The shipment was handed over to the Burlington at St. Louis in the two original cars; the 40-ft. car loaded to its visible capacity, and the other car partially loaded; the 20 bales in the second car aggregating 8988 pounds in weight. The Burlington being without special instructions or any notice of the wishes of the consignor or of his plans with respect to the final disposition of the shipment, ae- 21 Falls & Co. V. C. R. I. & P. Ry. Co. et al., 15 I. C. C. R. 269. 305 WEIGHTS AND WEIGHING. [§ 147 cepted it in the form in Which it was tendered and hauled the two cars to Burlington, Iowa, where they were delivered, to the Rock Mand. Upon the arrival of the two cars at Minneapolis the Rock Island assessed the charges from St. Louis on the 40-ft. ear at the rate of 26 cents per cwt., based on a minimum of 24,000 pounds as provided therefore in the published joint tariff as stated above, and under tariff authority to that effect from St. Louis the charges on the second car were assessed at the rate of 26 cents per cwt. for the 8988 pounds which that car contained. The petitioner contended in this case that if the Frisco had supplied one car large enough to accommodate the entire 50 bales they would have gone through from St. Louis to destination at the published carload rate (viz. 26 cents minimum 24,000 pounds), the total weight of the shipment (22,471 lbs.) being within the carload minimum weight provided in the tariff of the connecting lines and that he would thus have escaped the charges that he was compelled to pay on the second car. The Commission held, that the carrier's own published tariffs are the measure of its obligations to shippers; it cannot be controlled by the terms of the separate tariffs of its con- nections. That under a local any-quantity rate a shipper has the right to demand a car of a given size; that the car- rier may use any available equipment notwithstanding the fact that the separate tariffs of a connecting line provided a minimum weight under a carload rate; and that the initial carrier in the absence of a definite agreement with the ship- per as to the size of the car to be used is not liable to the shipper for the increased rate charges imposed upon him by reason of the fact that it delivered to the connecting line in two cars a shipment moving under the two local rates, the weight of which comes within the carload minimum weight provided for in the tariffs of the connecting line. § 147. Carriers charging for Weight not carried. It is manifestly unjust, under any rule as to minimum loads or otherwise, to charge for weig'ht not carried in a car which the carrier has furnished and into which on account Regulation — 20. §§ 148-150] INTEESTATE TEANSPOETATION. 306 of its size and the nature and bulk of the freight, the re- quired minimum cannot be loaded. ^^ §148. Assessing Freight Charges on purported Weights instead of the actual Weights of Shipments. A rule of a carrier subject to the Act to Regulate Com- merce, by which shipments of a stone from nonscale points are billed from such points at weights equal to the marked capacity of the cars, subject to correction when weights are taken, is unreasonable, because upon such cars as are not in fact weighed before delivery the carriers proceed to collect freight on such marked-capacity weights. The Comr mission held, that a change of such rule to a rule that such shipments shall be billed at the published carload minimum was also indefensible and ordered the ■ defendant carrier to desist and refrain from showing purported weights upon its billing until such weights shall have been ascertained either by weighing or by some fair method of computation from cubic contents. ^^ § 149. Allowance for Weight of Stakes, Racks and Blocks on Flat and Gondola Oars. See Section SSB, post. § 150. Actual Scale Weights Conclusive and not Weights Marked on the Bill of Lading. The material part of a biU of lading on the subject of the freight rate is that which fixes the rate per 100 pounds. Weighing the freight is purely a mechanical process and may be done at the point of shipment, or at the point of deliv- ery. Where the weight of the merchandise is uniformly the same, the carrier or the consignee may ask to have the weight verified up to the moment of delivery, and it is the weight =2 National Hay Association v. L. S. & M. S. R. Co. et al., 9 I. C. C. R. 264, affirming Suftern, Hunt & Co. v. I. D. & W. R. Co., 7 I. C. C. R. 255. 23 Roman-Oolitic Stone Co. v. Vandalia Rd. Co., 13 I. C. C. R. 115; same 13 I. C. C. R. 569. 30'J' WEIGHTS AND WEIGHING. [§§ 151, 152 disclosed by the scales, and not the weight marked on the bill of lading, that controls." When the bill of lading cover- ing a shipment is conditioned that the weight stated therein is subject to correction and the weight as ascertained by re- weighing at destination shows a result greater than that stated therein, the actual weight as ascertained at destination governs.^^ § 151. Right of Shipper to Rely upon Bill of Lading Weight when such Weight is Ascertained at Point of Origin. When a car is weighed at the point of origin and the weight is stated in the bill of lading, the shipper has a right to rely upon that weight and the carrier should only be allowed to change the weight upon satisfactory proof of the correctness of the substituted weight.^" §152. Billing Shipments at Net Weight. Although the fact that most shippers of a given article in part of a described territory were permitted to secure re- duced rates by billing at net weight, while many other ship- pers of the same article in another portion of that territory paid higher rates through billing at the full weight of the package and its contents, is ample warrant for an order re- quiring the carriers to remove the unjust discrimination as between such shippers by discontinuing the practice of ship- ping at net weights in any part of the territory, yet, on the other hand, unless the net weight practice was prevalent throughout substantially the whole territory or so well known from constant and general application as to receive implied sanction, it would not of itself constitute sufficient ground for an order requiring a reduction in rates when all carriers applied their established charges on the basis of gross weights." 2 § 306. Provisions of the Statute Governing Compensation for Transportation. Section 2 of the Act to Regulate Commerce provides : That if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate^ drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered. In the transportation of passengers or property, sub- ject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing him or them a like and contemporaneous service in the transportation of a like kind of traflac under substantially similar circumstances and condi- tions, such common carrier shall be deemed guilty of unjust discrimina- tion, which Is hereby prohibited and declared to be unlawful. Section 6 of the Act to Regulate Commerce provides : Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, be- tween the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. Section 1 of the Elkins Act provides that : The willful failure upon the part of any carrier subject to said acts to file and publish the tariffs or rates and charges as required by said § 307] INTERSTATE TRANSPORTATION. 486 acts, or strictly to observe such, tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dol- lars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or dis- crimination in respect to the transportation of any property in inter- state or foreign commerce by any common carrier subject to said Act to Regulate Commerce and acts amendatory thereof whereby any such property shall by any device whatever be .transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and acts amendatory thereof, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier or shipper, who shall, knowingly offer, grant, or give or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars. § 307. Nothing but Money can Lawfully be Given in Pay- ment for Transportation. If A. In General. Nothing but money can be lawfully received or accepted in payment for transportation subject to the Act to Regulate Commerce, whether of passengers or property or for any service in connection therewith, it being the opinion of the Commission that the prohibition against charging or collect- ing a greater or less or dijferent compensation than the estab- lished rate in effect at the time precludes the acceptance of services, property, or other payment in lieu of the amount of money specified in the public schedules. The law makes it clear that no carrier can lawfully apply to transportation over its line any rate or charge that is not plainly stated in its own tariff at the time.^ A rate in order to be uniform in operation, must be ex- pressed in dollars and cents, and to allow the carrier to accept part of its compensation in a commodity, or by way of com- promising a claim, would open the door to illegal discrimi- nations.^ iRule 207, Con. Rul. Bui. No. 4 (Sept. 15, 1906); Rule 36, Tariff Circular 16-A. 2 United States v^A. T. & S. P. Ry. Co. (1908), 163 Fed. Rep. 111. 487 PAYMENT FOK TRANSPOKTATION. [§ 308 Tf B. Teanspoetation in Exchange eoe Adveetising. In United States v. C. I. & L. Ry. Co.^ the Government filed petition to prevent the defendant from giving transportation in exchange for advertising. The defendant had entered into a contract with Munsey's Magazine whereby it had agreed to allow that company trip tickets or mileage to a certain value to be used by the publisher, his employes, and their families. Under the contract, the transportation might have been demanded before the advertisement was published. In granting the injunction as prayed for, the Court held, that the trend of the law was for the most rigid enforcement of the rule requiring exact equalities in rates; that although rates might be paid by means of checks, drafts, and bills of exchange, or other instruments passing as cash, yet the pro- posed action of the defendant was contrary to the letter and spirit of the Act, and was illegal, especially since the facts presented not the settlement of a liquidated liability, but an agreement to settle a future one by means of transportation. 1[ C. Opeset oe Claim oe Shippee against Peeight Chaeges. A shipper having a money demand against an interstate carrier sought to offset it against the amount of a freight bill which he owed the carrier upon a shipment of merchandise. May this lawfully be done? Held, That the two transactions have no relation one to the other, and that such a deduction from the lawful charges on the shipment could not be made.* Neither has the Commission any authority to offset such claims.^ § 308. Lien of Carrier for Transportation Charges. T[A. Caeeiee mat Refuse to Delivee the Shipment until Full Taexff Rate is Paid oe Tendeeed. "Whatever rate may be agreed upon for the transportation of goods from one State to another, the carrier's lien on the 3 United States v. C. I. & L. Ry. Co. (1908), 163 Fed. Rep. 114. 4 Rule 48, Con. Rul. Bui. No. 4 (March 10, 1908). 5 Pitt & Son V. St. L. & S. F. Rd. Co. et al. (1905), 10 I. C. C. R. 684. § 308] INTERSTATE TKANSPOETATION. 488 goods for freight charges is, by force of the Act to Regulate Commerce, for the amount fixed by the published schedule of rates and charges; and this lien can be discharged, and the consigiiee can become entitled to the goods, only by the payment of such amount." 11 B. Eelinquishment of Lien by Caeeiee upon being Indemnified against Loss. The lien of carriers upon freight for charges earned is satis- fied by the payment of rates for services which they are law- fully entitled to demand and a guaranty executed to a carrier by consignees or third parties, which might be construed to enable the carrier, in consideration of delivery before settle- ment of transportation charges, to exact for services rendered in moving and delivering the freight whatever it chooses to demand, cannot be used by the carrier to force payment of charges in excess of those it would be entitled to collect or receive if previous delivery had not been made.'' The Inter- state Commerce Act does not recognize indefinite or uncer- tain transportation charges.* If C. Eight of Caeeiee to Offset Oveechaege on One Ship- ment against an LTndeechaege on anothee. Before it had returned an overcharge on one shipment the carrier discovered that it had inadvertently made an under- charge on another shipment by the same shipper, which he refused to pay. Upon inquiry by the carrier whether it could lawfully offset the overcharge against the undercharge : Held, That the Commission had no authority to control the disposi- tion of an overcharge so long as the amount is passed by the carrier to the credit of the shipper.^ e Texas & Pacific Ry. Co. v. Mugg (1906), 202 U. S. 242, 26 Sup. Ct. Rep. 628, 50 L. ed. 1011, following Gulf, C. & S. P. Rd. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; see also Duncan v. A. T. & S. F. Rd. Co. et al. (1893), 6 I. C. C. R. 85. 4 I C. R. 385. 7 Phelps & Co. V. T. & P. Ry. Co. (1893), 6 I. C. C. R. 36; 4 I. C. R. 363. 8 Ibid. 9 Rule 133, Con. Rul. Bui. No. 4 (Jan. 7, 1909). 489 PAYMENT FOR TRANSPORTATION. [§ 309 § 309. Undercharges. HA. DcTT OF Delivering Carrier to Collect and of Ship- per TO Pay Undercharges. The Commission has ruled that carriers must exhaust their legal remedies to collect undercharges.^" Even though an undercharge results from an error in billing by the initial car- rier or a connection, the delivering carrier must collect the undercharge.^^ The legal expense attending the efforts to collect undercharges in such cases would seem to be a valid claim against the carrier through whose fault the mistake was made.^^ Upon inquiry, the Commission Held, That it is the duty of the delivering carrier to collect the lawful rate on prepaid shipments and to correct any errors that may have been made by the agents of the initial carrier in billing or in the collection by the initial carrier of the prepaid charges.^^ Upon the discovery that shipments have through mistake been moved at an unlawful rate the carrier should forthwith demand and the shipper should forthwith pay the difference between such unlawful rate and the legal rate applicable thereto.^* T[ B. Commission without Authority to Compel Shippers TO PAY Undercharges. The Commission is without authority to enter an order requiring a shipper to make good an undercharge, but ship- pers must understand their liability under the law for the failure or refusal to pay the published rates.^= Tl C. Commission no Authority to Award Set-off against A Shipper in favor of a Carrier for Undercharges. It seems obvious that the Commission has no authority to 10 Rule 3, Con. Eul. Bui. No. 4 (Nov. 4, 1907) ; Rule 187, Con. Rul. Bui. No. 4 (June 8, 1909). n Rule 16, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 12 Ibid. 13 Rule 156, Con. Rul. Bui. No. 4 (April 5, 1909). " Bovaird Supply Co. v. A. T. & S. P. Ry. Co. et al., 13 I. C. C. R. 56. 15 Palls & Co. v. C. R. I. & P. Ry. Co. et al. (1909), 15 I. C. C. R. 269. § 310] INTERSTATE TRANSPORTATION. 490 award set-off. The Commission is not empowered to make an, order requiring the complainant to pay money damages to a railroad company; it has no general common law or equity jurisdiction, but only such authority as is prescribed in the Act to Regulate Commerce. Generally speaking, the right to award set-off in an action at law is created by statute to avoid multiplicity of suits, but the right to make such award necessarily involves authority in the court to adjudicate the claims of both parties. It is clear that the Commission, whose authority is in the nature of an extraordinary remedy, is not authorized to adjudicate the claim of a railroad company against a shipper, but only the claim of a shipper against a railroad company for violation of the interstate commerce law. To award set-off amounts to the same thing as adjudi- cating the claim of the railroad against the shipper, and entry of an order based upon setoff could occur only after such adjudication. Plainly, if the Commission is without authority to determine the rights of the parties, it is also powerless to enter an order based upon a determination of those rights.^" §310. Repaying Advancements made by the Shipper for Construction of Switch Track. The Commission has disapproved of the practice of some carriers of repaying advancements made by a shipper for the construction of a switch track by making an allowance to him of a definite amount on each carload of freight shipped to or from his manufacturing plant on the ground that such an arrangement presents too much the appearance of a pur- chase of property by the carrier with transportation, which is contrary to the principles of the Act." 16 Laning-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co. (1909), 15 I. C. C. R. 37. 17 Weleetka Light & Water Co. v. Ft. S. & W. R. Co., 12 I. C. C. R. 503 (1907). 491 PAYMENT FOE TEANSPORTATIOIT. [§ 311 §311. Bates Based on Declared Valuation. The agent of a shipper not knowing the value of a dog to be sent by express nevertheless named a valuation of $500, and the resulting charges to destination amounted to $45. The dog was actually worth $15, and at this valuation the express charges would have been $8. The consignee declined to accept delivery and pay the charges demanded. Upon inquiry whether the charges may be collected on the basis of the actual value of the dog, it was Held, That the shipper is responsible for the act of his agent and that the charges at the valuation given must be collected.^' 18 Rule 188, Con. Rul. Bui. No. 4 (June 14, 1909). CHAPTER XX. LIMITATION OF CARRIER'S LIABILITY. Section 312. Initial Carrier may not Limit its Liability for Loss or Damage beyond its own Line. 313. Remedies existing at the Enactment of the Law not Barred. 314. Initial Carrier may have Recourse upon Carrier responsible for Loss or Damage. 315. Constitutionality of the Statute. 316. Construction of the Statute. § 312. Initial Carrier may not Limit its Liability for Loss or Damage beyond its own Line. The Act to Regulate Commerce provides:^ "That any common carrier, railroad, or transportation company receiv- ing property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad or transportation com- pany to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, rail- road, or transportation company from the liability hereby imposed." 1 Act to Regulate Commerce. Section 20, as changed by the Car- mack Amendment to the Hepburn Bill of June 29, 1906. The joint resolution of Congress approved June 30, 1906, providing that the Hep- burn Bill of June 29, 1906 (34 Stat, at L. 584, c. 3591), "shall take effect and be in force sixty days after its approval by the President of the United States," was ineffective to prevent such law from going into effect in accordance with its terms on the date of its approval by the President, which was the preceding day. (United States v. Stand- ard Oil Co. (1907), 148 Fed. Rep. 719). 492 'i93 LIMITATION OF CAERIER'S LIABILITY. [§§ 313-315 §313. Remedies Existing at the Enactment of the Law not Barred. The Act provides that nothing in the above section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.^ §314. Initial Carrier may have Recourse upon Carrier Re- sponsible for Loss or Damage. The statute provides :' ' ' That the common carrier, rail- road, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common car- rier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof." § 315. Constitutionality of the Statute. On February 28, 1908, the Circuit Court for the Western District of Arkansas held that the provision in the Hepburn Act, commonly called the Carmack amendment, which makes an initial carrier liable for loss, damage, or injury to through shipments, whether such losses occur on or off the line of the initial carrier, is constitutional; and that a clause in a bill of lading providing that an initial carrier's liability on an interstate shipment of goods transported over the lines of several carriers from point of origin to destination, shall be limited to losses occurring on its own line, is in conflict with the Carmack amendment.* The Court said that Congress in adopting this amendment seems to have recognized the difficulty involved, on the part of shippers, when goods are lost, in tracing the goods, fixing the liability, and recovering their loss. It seems to have recognized the additional fact that the facilities of the initial 2 Ibid. 3 Ibid. 4 Smeltzer v. St. t,. & S. F. R. Co. (1908), 158 Fed. Rep. 649; see also Riverside Mills v. A. C. L. R. Co. (1909), 168 Fed. Rep. 987. § 316] INTERSTATE TEANSPOETATION. 494 carrier are much greater than those of the shipper to locate the goods and fix the liability for loss or damage." The Court further declared that these provisions rest on substantial grounds of public policy which inspired this remedial legislation for the regulation of the immense volume of interstate commerce.* Under the common law, independently of statute, where a common carrier receives property for carriage beyond its own line, issuing a through bill of lading therefor, specify- ing the freight for through carriage, it makes the connecting carriers its agents, and is responsible to the shipper for any loss or damage to such property, either on its own or the connecting lines, which liability it cannot limit by contract.'' § 316. Construction of the Statute. The Commission in answer to numerous inquiries has ex- pressed its view of the legal effect of the above statute, as follows •? I. If a rate is conditioned upon the shipper's assuming the risk of loss due to causes beyond the carrier's control, the condition is valid. II. .If a rate is conditioned upon the shipper's assuming the entire risk of loss, the condition is void as against loss due to the carrier's negligence or other misconduct. in. If a rate is conditioned upon the shipper's agreeing that the carrier's liability shall not exceed a certain specified value — (a) The stipulation is valid when the loss occurs through causes beyond the carrier's control. (b) The stipulation is valid, even when the loss is due to the carrier's negligence, if the shipper has himself declared the value, expressly or by implication, the car- rier accepting the same in good faith as the real value, 5 Smeltzer v. St. L. & S. F. R. Co. (1908), 158 Fed. Rep. 649; see also Riverside Mills v. A. C. L. R. Co. (1909), 168 Fed. Rep. 987. 6 Ibid. 7 Ibid. 8 In the Matter of Released Rates (1908), 13 I. C. C. R. 550, and cases there cited. 495 LIMITATION OP CAKEIEK'S LIABILITY. [§ 316 and the rate of freight being fixed in accordance there- with. (e) The stipulation is void as against loss due to the carrier's negligence or other misconduct if the specified amount does not purport to be an agreed valuation, but has been fixed arbitrarily by the carrier without refer- ence to the real value. (d) The stipulation is void as against loss due to the carrier's negligence or other misconduct if the amount specified, while purporting to be an agreed valuation, is in fact purely fictitious and represents an attempt to limit the carrier's liability to an arbitrary amount. IV. A carrier may lawfully establish a scale of charges applicable to a specific commodity and graduated reasonably according to value. These rates must be applied in good faith, regard being had to the actual value of the property offered for shipment. V. A carrier must not make use of its released rate as a means of escaping liability for the consequence of its negli- gence, either wholly or in part. VI. It is a mischievous practice for carriers to publish in their tariffs and on their bills of lading rules and regulations which are misleading, unreasonable, or incapable of literal enforcement in a court of law. VII. A stipulation that an additional charge of 20 per cent, shall be collected on property that is shipped not sub- ject to limited liability is unreasonable. CHAPTEE XXI. FREE AND REDUCED-RATE TRANSPORTATION OF PROPERTY. Section 317. Free and Reduced-Rate Transportation for the United States, State, or Municipal Governments. 318. Free and Reduced-Rate Transportation for Charitable Purposes. 319. Free and Reduced-Rate Transportation for Fairs and Expositions. 320. Free Baggage with- Mileage Tickets. 321. Free Carriage of Company Material. 322. Return of Astray Shipments. 323. Rates on Return Shipments. 324. Movement of Shipments Refused by Consignees or Damaged In Transit. 325. Transportation of Trucks of Cars Destroyed on Foreign Lines. 326. Coal used for Steam Purposes not Entitled to Reduced Rates. 327. Free Transportation of Supplies of Express Companies by Rail- roads. 328. Free Transportation of Railway Packages by Express Companies. 329. Free Transportation of Material for Erection of Refrigeration Plant not Owned by the Carrier. 330. Free and Reduced-Rate Transportation of Material and Supplies of Telegraph and Telephone Companies. 331. Issuing of "Franks" by Express Companies to Officers, Agents, Employes and their Families Declared Illegal. § 317. Free and Reduced-Rate Transportation for the United States, State or Municipal Governments. Tl A. In General. Section 22 of the Act to Regulate Commerce provides "That nothing in this Act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State, or Municipal Governments." The Commission stated that, "This provision and the words 'reduced rates' are construed to be special authority for carriers to depart 496 497 FREE TRANSPORTATION OF PROPERTY. [§ 317 from established tariff rates ; and for such, transportation of property as is provided for in said Section 22, it is not neces- sary for carriers to provide tariffs or observe tariff rates and regulations. ' '^ Reduced rates may be granted to the United States, State, or Municipal Governments only in instances in which the transaction is directly between the carrier and such Grovern- ment, and may not include those in which a contractor or the third person or party is interested.^ If title to property, such as postal cards, passes to the Government at the point of manufacture, the carrier may agree upon a rate to be applied for transporting it for the Government to another point, without filing a tariff with the Commission. But if the manufacturer under his contract is required to deliver to the Government at such other point, the transportation must be under the published tariff rate. In other words, if the shipment is made directly by the Govern- ment, the rate may be fixed by the carrier without posting and filing the tariff, but not otherwise.^ ^ B. Free and Rbducbd-Eate Transportation of Fish and Eggs for United States Commission of Fish and Fisheries. In response to an inquiry from the United States Commis- sioner of Fish and Fisheries, the Interstate Commerce Com- mission stated that as the United States Commission of Fish and Fisheries is one of the agencies of the Government, and the distribution of fish and eggs by that Commission is by authority of the Government, the transportation of fish and eggs so distributed falls within the exception of Section 22 of the Act to Regulate Commerce, which permits the handling of property free or at reduced rates for the United States.* 1 Rule 35, Tariff Circular 16-A. 2 Rule 35, Tariff Circular 16-A; Rule 63, Tariff Circular 15-A; Rule 33, Con. Rul. Bui. No. 4 (Jan. 3, 1908). 3 Rule 36, Con. Rul. Bui. No. 4 (Feb. 4, 1908). 1 Re United States Commission of Fish and Fisheries, 1 I. C. C. R. 21; 1 I. C. R. 606 (1887). Regulation — 32. §§ 318, 319] INTERSTATE TRANSPOKTATION. 498 U C. Special Eates foe Teanspoetation op Indian Supplies. It is lawful under the Act for a common carrier to offer to make special rates with individuals, in order that the latter may make proposals to the Interior Department for the trans- portation of Indian supplies, such transportation being "for the United States" and the Government receiving the benefit of the reduced rates.^ If D. Eeducbd Eates foe Municipal Governments in Poebign Countries Adjacent. Upon inquiry: Held, That the reduced-rate transportation for municipal governments permitted under Section 22 of the Act does not apply to municipal governments in foreign coun- tries adjacent.* § 318. Free and Reduced-Rate Transportation for Charitable Purposes. The Act authorizes the carriage, storage, or handling of property free or at reduced rates for charitable purposes.^ §319. Free and Reduced-Rate Transportation for Fairs and Expositions. The Act authorizes the carriage, storage, and handling of property free or at reduced rates to or from fairs and exposi- tion for exhibitions thereat.* The Commission has held that specimens of ore that are not to be offered for sale but that are intended exclusively for exhibition (in this case at the Chamber of Mines at Los Angeles) may be carried free of charge or at reduced rate under Section 22 of the Act." So it has been held that a museum of natural history, erected in a public park by private subscription and supported partly by taxes and partly by the income of funds contributed by citizens, may be given free 5 Re Indian Supplies, 1 I. C. R. 22; 1 I. C. C. R. 15. e Rule 118, Con. Rul. Bui. No. 4 (Nov. 13, 1908). ^ Act to Regulate Commerce. Section 22. 8 Ibid. 9 Rule 176, Con. Rul. Bui. No. 4 (May 4, 1909). 499 FREE THANSPOBTATION OF PKOPEETY. [§§ 330, 331 dr reduced-rate transportation under Section 22 of the Act on articles intended for exhibition therein, notwithstanding the fact that as a means of securing additional income it charges an admission fee on certain days of the week, admis- sion being free on other days.^° §320. Free Baggage with Mileage Tickets. The Act authorizes the granting of special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand or more miles.^^ § 321. Free Carriage of Company Material. If A. In General. It is not unlawful for a carrier to return its own property free of charge, to the manufacturers thereof situated on its own line, for exchange or repair.^^ ]\ B. 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 employes of such car- riers, 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 uten- sils, fuel, or servants at all employed in serving others than passengers and employes of the carriers as such should be carried at less than tariff rates. Such privilege 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.*^ 10 Rule 185, Con. Rul. Bui. No. 4 (June 7, 1909). 11 See note 8, supra. 12 Rule 22, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 13 Rule 87, Con. Rul. Bui. No. 4 (June 25, 1908).- §§ 323-324] INTERSTATE TRANSPORTATION. 500 § 322. Return of Astray Shipments. Instances occur in which, through error or oversight on the part of some agent or employe of the common carrier, a shipment is billed to an erroneous destination or is unloaded short of destination or is carried by. The Commission stated that it is of the opinion that in bona fide instances of this kind carriers may return such astray shipments to their proper destination or course without the assessment of additional charges, and may arrange for such movement of such astray shipments for each other on mutually acceptable terms with- out the necessity of publishing, posting, and filing the tariffs under which it will be done." §323. Rates on Return Shipments. A shipment of mining machinery went to destination over the lines of one carrier and was subsequently returned for repairs over the line of another carrier. The published tariff, to which all carriers participating in both movements were parties, provides for half rates on such return movements when over the same route as the original outbound movement. A portion of the route of the return movement was over the line of a carrier which also formed a part of the through route over which the outbound shipment moved. Held, That the regular tariff was properly applied on the return move- ment; that the return movement under through billing must be treated as a unit; and that there could be no refund on the basis of the half rates for any portion of such return movement."^' § 324. Movement of Shipments Refused by Consignees or Da.maged in Transit. T[ A. In General. In one form or another many carriers provide for the return free or at reduced rates, or the reconsignment under through 14 Rule 40, Tariff Circular 16-A; Rule 217, Con. Rul. Bui. No. 4 (May 6, .1907). 15 Rule 42, Con. Rul. Bui. No. 4 (March 3, 1908). 501 FKEE TRANSPORTATION OF PROPERTY. [§ 324 rate from point of origin, of shipments that are damaged in transit or are refused by consignees. In answer to request for ruling the Commission expressed the opinion that in a nondiscriminatory way and within reasonable limits such rule is not unlawful or improper. The Commission stated, how- ever, that care should be taken to preserve the distinction between shipments in which the carrier has no interest except the collection of the transportation charges and which are re- consigned or returned purely out of consideration for the in- terests of the owner of the shipment and shipments which, because of injury or damage in transit, are left on the carrier's hands and in which it has an interest to the extent of the transportation charges and the value of the shipment.^" H B. Shipments Eefused by Consignee. A rule providing that shipments which are refused by con- signee may be reconsigned and forwarded under application of through rate from point of origin to final destination, either with or without the exaction of a reconsignment charge, is permissible. Such rule should provide that if reconsigned to a point beyond which takes a lower rate from point of origin the rate to first destination wiU be charged, and should also require satisfactory showing of actual refusal by consignee and of a genuine transaction in good faith. ^^ T[ C. Shipments Damaged in Transit. A rule providing for the reconsignment or return free or at reduced rate of articles damaged in transit is not deemed improper if it is so framed and applied as to prevent abuse or improper practices under it. As to shipments that are not in closed packages, and thus are open to immediate inspec- tion, the rule should provide that in order to claim return under this rule the goods shall not have left the possession of the carrier before such claim is made. As to goods that are in closed packages it is believed that the rule should 16 Rule 74, Tariff Circular 17-A; Rule 41, Tariff Circular 16-A. 17 Ibid. § 325] INTERSTATE TEANSPOKTATION. 503 provide that they must be returned to the carrier within ten days.^* T[ D. EULES MUST BE PUBLISHED AND APPLIED ONLY VIA EOUTE OVER WHICH Shipment Moved. Such rules must be in tariffs and must be applied without discrimination and should provide that rule for return of ship- ments applies only via the route and line over which the ship- ment moved. The Commission stated that uniformity among carriers in rules and practices in such matters as these is de- sirable and contributes to thorough understandings and har- mony between carriers and shippers.^^ 1[E. Damaged in Transit Shipments left on hands of 'Carrier may be Hauled over its Lines as its own Property would be. Where a shipment is refused and is left on the hands of the carrier it is believed that the carrier, when it recognizes its responsibility for the value of the shipment and the transpor- tation charges on same, may haul it for itself to such point on its own lines as offers the best opportunities or facilities for disposing of it to advantage, just as it may haul property of its own.^" §325. Transportation of Trucks of Cars Destroyed on Foreign Lines. If a car of one company is destroyed on the line of another company, the carrier upon whose line the car is destroyed may transport free, as its own property, to junction with the line of the carrier owning the car, the trucks of the destroyed oar, which are understood to be salvage from a wreck, the cost of which must be borne by the carrier on whose lines it occurs. If there is not direct connection between the line of the carrier owning the car and the line upon which it is de- stroyed, the carrier on whose line the car is destroyed may 18 Rule 74, Tariff Circular 17-A; Rule 41, Tariff Circular 16-A. 19 Ibid. 20 Ibid. 503 FREE TRANSPORTATION OF PROPERTY. [§§336,337 transport the trucks free to a junction with an intermediate carrier, and pay to the intermediate carrier or carriers their full tariff rates for transporting them to a junction with the line of the carrier own^r of the car destroyed, and such owner may transport them on its own lines as its own property. The Commission stated that "it does not appear to it that opportunity for abuse or discrimination is opened by this prac- tice. It does not appear to transgress the Commission's rule that carriers may not haul freight free for each other; and it is approved with the reservation that if discrimination or unlawful practice is found to grow out of it the plan will be condemned. ' '^^ § 326. Goal used for Steam Purposes not Entitled to Reduced Rates. A tariff providing for reduced rates on coal used for steam purposes, or that the carrier will refund part of the regular tariff charges on presentation of evidence that the coal was so used, is improper and unlawful. That is to say that the carrier has no right to attempt to dictate the uses to which commodities transported by it shall be put in order to enjoy a transportation rate.^^ § 327. Free Transportation of Supplies of Express Companies by Railroads. A railway company may lawfully transport the supplies of an express company without reference to any tariff provi- sion when used in the business of the express company upon the line of the railway itself. A railway company may not lawfully transport supplies of an express company when us:ed in the business of that com- pany at points not on the line of the railway.^^ 21 Rule 224, Con. Rul. Bui. No. 4 (May 12, 1908). 22 Rule 34, Con. Rul. Bui. No. 4 (Feb. 3, 1908). 23 In the Matter of Contracts of Express Companies for the Free Transportation of their Men and Material over Railroads, 16 I. C. C. R. 246. §§ 328-331] INTERSTATE TRANSPORTATION. 504 §328. Free Transportation of Railway Packages by Express Companies. An express company may lawfully transport the packages of a railway company between points upon that line of rail- way without reference to its tariff rates. An express company may not lawfully transport for a rail- way packages between points on its route but not on that particular line of railway.^* §329. Free Transportation of Material for Erection of Refrigeration Plant not Owned by the Carrier. A carrier, not being able to obtain ice for refrigeration purposes at a division point, entered into a contract under which a private company there undertook to build a plant and manufacture ice. The contract provided that in case it was necessary to enlarge the plant to meet the increasing needs of the carrier, the carrier would transport, free of charge, the material and mechanics necessary to make the enlargement. An enlargement was required and made, and upon applica- tion by the carrier for permission to refund the freight charges on the material used and the passenger fares paid by the mechanics employed on the work : Held, That the application must be denied, it appearing that the ice plant also sold ice commercially in the community in question. ^^ § 330. Free and Reduced-Rate Transportation of Material and Supplies of Telegraph and Telephone Companies. See "Free and Reduced-Rate Transportation to Officers and Employees of Telegraph and Telephone Companies," Section 607, post. § 331. Issuing of "Franks" by Express Companies to Officers, Agents, Employes and their Families declared Illegal. The issuing of franks by an express company to officers, 24 Ibid. 25 Rule 124, Con. Rul. Bui. No. 4 (Dec. 7, 1908). 505 PKEE TKANSPOKTATION OF PEOPEETT. [§ 331 agents, attorneys, or employes of itself or other express com- panies or railroad companies, or to the families of such per- sons, upon which property is transported from one State to another free of charge, relates to interstate commerce, which it ds within the constitutional power of Congress to regulate, and is within the prohibitions of the Interstate Commerce Act and its amendments against discrimination, undue preference, and departure from the published schedule of rates, and is unlawful. Such gratuitous carriage is not within the excep- tions made in the Interstate Commerce Act, which by their terms are restricted to certain classes of passengers carried by railroads and property carried for certain classes of ship- pers and for stated purposes.^" It should not be overlooked that express companies are in- cluded within the provisions of Sections 2 and 3 of the Act to Kegulate Commerce against unjust and unreasonable dis- crimination, of Section 6 of the Act prohibiting the taking of any greater or less sum for transportation of property than that named in the tariffs filed, and Section 1 of the Elkins Act making it unlawful to offer or accept any rebate from the published rate, or other discrimination in respect of the trans- portation of any property whereby any advantage is given. ^' The power of Congress over interstate transportation em- braces all manner of carriage whether gratuitous or other- wise; and in the absence of express exceptions, the intention of Congress in enacting the Elkins Act was to prevent any departure whatever from published rates.^* 26 United States v. Wells-Fargo Express Co. (1908), 161 Fed. Rep. 606, aflBrmed in American Express Co. et al. v. United States (1909), 212 U. S. 522; 53 L. ed. 635, 29 Sup. Ct. 315. 27 Ibid. 28 Ibid. CHAPTER, XXII. ALLOWANCES BY CARRIERS FOR SERVICES RENDERED OR INSTRUMENTALITIES FURNISHED BY OWNERS OF PROPERTY TRANSPORTED. Section 332. Allowances to Owners for Services Rendered or Instrumentalities Furnished must be Just and Reasonable. 333. Allowances for the Delivery and the Receipt of Property. 334. Jurisdiction of Commission over Allowances to the Owner of Prop- erty Transported. 335. Allowance for Weight of Stakes, Racks, and Blocks on Flat and Gondola Cars. 336. Allowances for use of Private Cars. 337. Allowances to Terminal Railroads and Boat Lines owned or con- trolled by the Shipper. 338. Allowances for Shrinkage in Weight of Shipments while in Transit. 339. Allowances for Grain Doors Furnished by Shippers. 340. Allowance by Carriers for Elevation Service. 341. Allowances to Shippers must be Shown in Published Tariffs. § 332. Allowances to Owners for Services Rendered or Instru- mentalities Furnished must be Just and Reasonable. The statute provides that if the owner of property trans- ported directly or indirectly renders any service connected with such transportation, or furnished any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable.^ The Commission has stated, that while it is true that under the terms of the amended Act to Regulate Commerce a ship- per may receive in the rate charged, a "just and reasonable" allowance from a carrier for a service or instrumentality furnished by him in connection with the transportation of his own property, this provision must be read in connection with the other provisions of the law prohibiting and making 1 Act to Regulate Commerce. Section 15. 506 501' ALLOWANCES BX CAEEIBES TO SHIPPERS. [§§ 333, 334 unlawful any arrangement or practice that results in an undue preference or an undue discrimination in favor of one shipper as against others, or that results in a rebate or other departure from the lawfully published rates. There- fore, if the allowance involves a profit over and above the actual cost of the service rendered it becomes when made to a shipper, a rebate and an unlawful diserimipation to the extent of the profit realized. It is not a rebate when it does not exceed the actual cost. But to avoid that fundamental objection the actual cost of the service rendered must be the limit of the allowance.^ § 333. Allowances for the Delivery and Receipt of Property. It is not a part of the carrier's duty to bear the expense of transfer of goods from the shipper to the carrier. The de- livery of goods to a carrier and the receipt of goods from a carrier are duties devolving upon the shipper, for which the carrier cannot be compelled to pay. For carriers to un- dertake to make a shipper allowances based upon the per- formance by the shippers for themselves of services which they are legally bound to do for themselves is for the carrier to violate the Act to Eegulate Commerce.^ §334. Jurisdiction of Commission over Allowances to the Owner of Property Transported. Section 15 of the Act to Regulate Commerce provides, that the Commission may, after hearing on a complaint, de- termine what is a reasonable charge as the maximum to be paid by the carrier or carriers to the owner of* the property transported for the service rendered or the use of the instru- mentality furnished, and fix the same by appropriate order 2 Federal Sugar Refining Co., etc., v. B. & O. Rd. Co. et al. (1909), 17 I. C. C. R. 40, following In the Matter of Allowances, etc., 12 I. C. C. R. 85. 3 In the Matter of Allowances for the Transfer of Sugar (1908), 14 I. C. C. R. 619, following Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. 822; Chicago & Alton Ry. Co. v. United States, 156 Fed. Rep. 558, 84 C. C. A. 324; General Electric Co. v. N. Y. C. & H. R. R. Co., 14 I. C. C. R. 237; Solvay Process Co. v. D. L. & W. R. R. Co.. 14 I. C. C. R. 246. §§335,336] INTERSTATE TEANSPOETATIO^r. 508 which order shall have the same force and effect and be enforced in like manner as the other orders provided for in that section of the statute. §335. Allowance for Weight of Stakes, Racks, and Blocks on Flat and Gondola Cars. The Commission has recognized the reasonableness of an allowance of 500 pounds from the weight of cars for racks, stakes, and blocks furnished by the shipper on fiat and gon- dola cars loaded with freight requiring their use.* The defendant railroad company had a tariff in effect which made no allowance for the weight of stakes used to secure the lumber on the ears. "Within a reasonable time after the shipment moved the defendant amended its tariff to make an allowance of 500 pounds for such purpose. Upon the facts stipulated the plaintiff was awarded due repara- tion. By this decision also the Commission recognized the reasonableness of such an allowance in weights.' §336. Allowances for Use of Private Cars. Inasmuch as it is the duty of the carrier to supply the rolling stock for the freight it offers or proposes to carry, if the diversities and peculiarities of the traffic are such that this is not always practical and the consignors are allowed to supply it themselves, it is just and proper that the owner of such equipment be given a reasonable allowance for the use thereof. ° Such allowance is usually in the form of mile- age, i. e., a fixed allowance, in cents or fractions of a cent, per mile for each mile the car travels over the roads. This allowance is usually made for the empty movement in con- sideration of the loaded movement. 4 National Wholesale Lumber Dealers Assn. et al. v. A. C. L. Rd. Co. et al., 14 I. C. C. R. 154; affirmed in Duluth Log Co. v. M. & I. Ry. Co., 15 I. C. C. R. 192; same, 15 I. C. C. R. 627. sKaye & Carter Lumber Co. v. C. M. & St. P. Ry. Co., 14 I. C. C. R. 604. 6 Rice V. L. & N. R. R. et al. (1888), 1 I. C. C. R. 503; 1 I. C. R. 722; Scofield V. L. S. & M. S. Ry. Co. (1888), 2 I. C. C. R. 90; 2 I. C. R. 67. 509 ALLOWANCES BY CAKEIEKS TO SHIPPERS. [§§ 337-339 §337. Allowances to Terminal Railroads and Boat Lines Owned or Controlled by the Shipper. See Chapter IS, post. §338. Allowances for Shrinkage in Weight of Shipments while in Transit. In considering a contention that an allowance should be made for the shrinkage of bananas while in transit, the Com- mission held, that it could not sustain the position of the com- plainant. It admitted that an allowance is made in the weight of shipments of live stock and some other freight, but questioned the logic of the practice; that the shrinkage of freight in transit is one of the elements that should be con- sidered in the fixing of the rate ; that at the most the shrink- age is a matter of estimation. In the case of bananas, ship- ments on the road four days shrink more than they do when on the road only two days; to be accurate the shrink- age would be different at different points of destination based upon the distance from the point of origin.^ §339. Allowances for Grain Doors Furnished by Shippers. The Commission has decided that the requirements of the law will be satisfied, for the present at least, if the carriers that propose to pay shippers for grain doors furnished by such shippers provide in their tariffs that where grain doors are necessary and are furnished by the shipper the carriers will pay the actual cost of such doors, with stated maximum allowances per grain door and per car. Such maximum allowances per door and per ear must be reasonable, and where carriers pay for such doors on the basis of actual cost a certified statement from the shipper, verified as to the num- ber of doors furnished and the cars for which they are fur- nished, by carrier's agent, should in every instance be re- quired.* ' Topeka Banana Dealers Assn. et al. v. St. L. & S. P. R. Co. et al., 13 I. C. C. R. 620. 8 Rule 78, Con. Rul. Bui. No. 4 (June 1, 1908). §§340,341] INTEKSTATE TEANSPOETATION. 510 Where a carrier has established a tariff provision in con- formity with the Commission's rule with respect to the pay- ment by carriers of the cost of grain doors, and it appears that prior to the publication of such a tariff it had been the practice of the carrier to pay for grain doors furnished by shippers : Held, That applications may be made on the special reparation docket for authority to refund on the basis of the tariff provision for grain doors furnished within six months prior to the effective date of the tariff rule.® § 340. Allowance by Carriers for Elevation Service. See Section 250, ante. §341. Allowances to Shippers must be Shown in Published Tariffs. See Section ^63, post. 3 Rule 132, Con. Rul. Bui. No. 4 (Jan. 5, 1909). GHAPTEK XXIII. ALLOWANCES TO TERMINAL RAILROADS AND BOAT LINES OWNED OR CONTROLLED BY THE SHIPPER. Section 342. Right of Terminal Railroad to Participate in Joint Tariff and Enjoy Division of Through Rate. 343. Sole Ownership of Terminal Road Creates no Presumption of Il- legality of Transaction. 344. Allowances to "Tap Lines." 345. Division of Rate to Boat Line Controlled by the Shipper. 346. Services Performed and Instrumentalities Furnished for which Owner is not Entitled to Compensation. 347. Allowances to Terminal Railroads as a Medium of Rebating. §342. Right of Terminal Railroad to Participate in Joint Tarifif and Enjoy Division of Through Rate. The International Harvester Company owned the Illinois Northern Railroad. Whatever profit accrued to that railroad inured to the benefit of the Harvester Company, its sole owner. The Illinois Northern Railroad was a common carrier within the provisions of the first section of the Act to Regulate Com- merce. It was incorporated as a railroad company under the laws of Illinois. It actually owned and operated a line of railroad. It maintained a freight station, at which it received aijd delivered for the general public considerable quantities of less than carload freight. Its main business was the moving of loaded cars to and from various industries along its line, and in that capacity it served more than two hundred plants besides that of the International Harvester Company. Held, That manifestly there was no reason in law why this railroad might not make joint rates, file joint tariffs, and agree upon joint division as other railroads do.^ 1 In the matter of Divisions of Joint Rates and Other Allowances to Terminal Railroads (1904), 10 I. C. C. R. 385. 511 §§ 343, 344] INTEESTATE TEANSPOETATION. 513 § 343. Sole Ownership of Terminal Road creates no Presump- tion of Illegality of Transaction. The mere fact that a terminal railroad is entirely owned by the largest individual shipper over it, or that it was orig- inally organized and built for the purpose of doing the work of that shipper, is not controlling against the legality of the transaction. While there may be great objection to allowing shippers to build and operate railroads over which their traffic moves, the Interstate Commerce Act contains no prohibition of that kind.^ §344. Allowances to "Tap Lines." In the ease of The Central Yellow Pine Association v. V., S. & P. Bd. Co. et al.,^ lumber mill operators owned and controlled short originating roads called "tap lines" which were used in transporting the timber and logs from the forests to the lum- ber mill. The interstate railroads handling the lumber ship- ments established through rates with these "tap lines" and allowed them divisions of the rates for the services performed by them. It appeared that the payment of these divisions in all cases was made to a so-called railway company and not to the mill company. In some instances the railway com- pany was merely a department of the mill company; in other cases it appeared to be a separate firm composed of the same individuals ; in still other cases it was a chartered corporation whose stock was owned by the mill company or the proprietors of that company ; whatever money was received by it, however, inured tg the benefit of the mill company finally if not directly. The Commission held that "tap lines" were the private properties of the mill owners and that these allowances amounted to rebates and therefore unlawful under the Act. 2 Re Division of Joint Rates (1904), 10 I. C. C. R. 385, following Central Yellow Pine Association v. V. S. & P. R. Co., 10 I. C. C. R. 193. 3 Central Yellow Pine Association v. V. S. & P. Rd. Co. et al. (1904), 10 I. C. C. R. 193, cited and applied in Central Yellow Pine Assn. v. 111. Cent. Rd. Co. et al. (1905); 10 I. C. C. R. 505, and reaffirmed in Star Grain & Lumber Co. et al. v. A. T. & S. F. Ry. Co. et al. (1909), 17 I. C. C. R. 338. 513 ALLOWANCES TO TERMINAL RAILROADS. [§ 344 That it was immaterial whether the logs were brought to the mill by steam railroad, horse railroad, wagon, or other means of conveyance. The Commission further stated that these divisions can only be granted when the logging road is a public carrier which actually makes a joint through rate. That to become a common carrier within the purview of the Act, the "tap line" must clearly file its tariffs and render its statistical reports to the Comjnission, and otherwise subject itself to governmental au- thority, and must obey the law obligatory on such carriers. In the case of Star Grain & Lumber Co. et al. v. A., T. & 8. F. By. Co. et al./ the Commission held that it could not recognize as common carriers, under the Act, lines that do not publish tarife in lawful form or concur properly in lawful tariffs of other lines in which they are named as parties, or that do not file annual reports and keep their accounts in accordance with the system prescribed by the Commission, or that do not in all other respects comply with the law. But the mere interposition between the lumber mill and the carrier of a paper railroad incorporation that calls itself a common carrier and complies with the Act in those respects, but is owned by the mill or its proprietors, does not give legality to the so-called tap-line allowances or meet the re- quirements of the Commission. As an administrative body the Commission cannot stop at the surface of a transportation problem because its form and outward appearance are regular but must reach the actual situation and examine its real sub- stance and thus be able to enforce the prohibitions as well as the requirements of the Act.^ The underlying principle of the law is to forbid preferences, discriminations and departures from the published rates; and any allowance or division made to or with a tap line, whether incorporated in form as a common carrier or not, that is owned and controlled, directly or indirectly, by a lumber mill or its officers or proprietors, and, beyond the logs that it hauls to i Star Grain & Lumber Co. et al. v. A. T. & S. F. Ry. Co. et al. (1909), 17 I. 0. C. R. 338. 5 Ibid. Eegulation — 33. § 345] INTEESTATE TEANSPOETATION. 514 the mill, has no traffic except such as it may pick up as a mere incident to its effort to serve the mill as an adjunct or plant facility, is a preference and discrimination and an unlawful de- parture from the published rate." § 345. Division of Rate to Boat Line Controlled by the Shipper. In a proceeding before the Commission,^ it was shown that Majiistee and Ludington were salt producing points in Michi- gan, and that salt shipped from those points to places on the Missouri River was carried by boat line on Lake Michigan, to Chicago, and by railroad from Chicago to the Missouri Eiver. The through rate was 53 cents per barrel of which the boat line received, according to the destination, from 30 to 33 1-3 percent, amounting to from 16 to 18 cents per barrel. Established vessel lines on the lake formerly carried the salt to Chicago for from 8 to 11 cents per barrel, but additional services were rendered by the boat line, including storage at points of shipment and unloading, cooperage, docking, storage, insurance, handling and loading in cars at Chicago, represent- ing a cost of about 8% cents per barrel. The boat line and the salt were owned by distinct corporations, but the same persons owned controlling interests in both corporations. Salt interests at Detroit complained that this division to the boat line amounted to a rebate from the tariff to the salt shippers from Manistee and Ludington and enabled them to undersell Detroit salt in the Western markets. It further appeared that coal used in producing salt at Detroit cost on the average about 75 cents to each ton of salt, while Manistee and Luding- ton salt producers also operated lumber mills and used the refuse from lumber manufacture for fuel in the salt works. Held, That it was no part of the duty of the Commission to equalize differences in the natural advantages of localities through the adjustment of tariff rates, and that upon the facts shown in the investigation it did not appear that the share e star Grain &c. Co. v. A. T. & S. F. R. Co., 17 I. C. C. R. 338. ' Re Transportation of Salt (1904), 10 I. C. C. R. 148. 515 ALLOWANCES TO TERMINAL EAILEOADS. [§ 346 of the through rate allowed to the boat line was so grossly- disproportionate to the value of the entire through service as to amount to a rebate in favor of the salt interests of Manistee and Ludington which also controlled the boat line. §346. Services Performed and Instrumentalities Furnished for which Owner is not Entitled to Compensation. In the' case of General Electric Go. v. N. Y. G. & H. R. B. Go. et al.,^ the complainant appealed to the Commission to determine and fix the just and reasonable sum that it might charge the defendants for alleged services performed and instrumentalities furnished by it in connection with the trans- portation of its own property by the defendants to and from interstate points. The complaint was based upon the provi- sion incorporated into Section 15 of the Act to Regulate Com- merce by the amendatory act of June 29, 1906, as follows : If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Com- mission may, after hearing on a complaint, determine what is a reasonable charge as the maximum to be paid by the carrier or car- riers for the service so rendered or the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for in this section. The instrumentalities referred to in the petition were the complainant's storage tracks which it had constructed and the locomotives and electric motors which it owned and operated, within the fence of its extensive plant at Schenectady, in the State of New York. And the services which the petitioners claimed to perform in connection with the interstate move- ment of its own property consisted in taking from the storage tracks the cars that had been set there by the defendants, and switching them, by means of its own engines and crews, to certain of its shops, foundries, and other buildings within the inclosure, where cars were customarily loaded with fin- 8 General Electric Co. v. N. Y. C. & H. R. R. Co. et al. (1908), 14 I. C. C. R. 237. Ruling in this case followed in Solvay Process Co. v. D. L. & W. Rd. Co. et al. (1908), 14 I. C. C. R. 246. § 346] INTERSTATE TEANSPOETATION. 516 ished products for shipment to interstate destinations, or, as the case might be, to the same or other shops, foundries, and buildings where cars were ordinarily unloaded of raw ma- terials and supplies consigned to the complainant from inter- state points of origin. The complainant also hauled the loaded and empty cars from these shops, foundries and other build- ings back to the storage tracks where the defendants might take and put them into service again if empty, or haul them on to their several interstate destinations if loaded. These activities and this equipment the complainant asserted were services directly rendered and instrumentalities furnished by it in connection with the transportation of its own property within the meaning of the provision of the Act above referred to; and it insisted that it ought to have reasonable compen- sation therefor from the defendants. The defendants had long been in the habit, both at Schenectady and elsewhere, of set- ting cars at factories having their own switch connections, and hauling them away again free of charge. The complain- ant therefore urged that for each loaded car inbound and out- bound it was entitled at the hands of the defendants to one movement and return, free of charge, between its storage tracks and any designated shop, factory, foundry, or other building within the inelosure of its plant, where loading or unloading was done and where the particular ear might be nepded. And as it performed the service for itself with its own facilities and thus saved the defendants that expense it contended that it might properly make a charge therefor against them. It was contended for the complainant that it was entitled to compensation because, as was alleged, (a) the maintenance of its storage tracks relieved the defendants of the necessity of increasing their terminal facilities at Schenectady, which were admitted to be insufficient to accommodate all the traffic, including the complainant's; (b) by switching the cars from the storage tracks to its various shops and factories with its own engines and crews and switching them back again, the complainant saved the defendants the expense of doing, car by 517 ALLOWANCES TO TERMINAL EAILEOADS. [§ 346 car, what it did free of charge for other maniifactories at Schenectady and elsewhere; (e) the defendants could and did deliver cars to complainant on its storage tracks in trains and take them away again in trains, instead of singly and at greater cost as they did free of charge for others at Schenec- tady and elsewhere; (d) the "spotting" of cars for others, by which was meant the placing of ears at the doors of fac- tories or on the spot where they were needed, was a service that was taken into consideration by the defendants in making up their rates, and therefore, when not done by them for the . complainant, which did it for itself, there ought to have been some abatement in the rate in the way of an allowance to the complainant. The Commission after a full and careful consideration of all the facts, dismissed the complaint, and held that where a manufacturing plant has so increased in size as to require within the plant inclosure 12 miles of broad-gauge switching tracks and 7 miles of narrow-gauge electric tracks for the prompt, successful, and economical operation of the industry, and with its own motors, engines, and crews does a vast amount of purely internal switching, which would be serious- ly interfered with by the switching engines of the railroad if permitted access to the plant, and has on that account assumed charge also of the in-and-out switching and spotting thereto- fore done by the railroads, that it is not entitled to compen- sation from the railroad companies to cover the cost of the movements of loaded and empty cars between the interchange tracks and certain shops, foundries, and other buildings with- in the inclosure. That common carriers are under no duty to extend their transportation obligations with the extension of great indus- trial plants, and to accept and deliver cars within the inclo- sure over a network of interior switching tracks constructed as plant facilities to meet the requirements of the industry. That the complainant in the above case did nothing within its plant inclosure which it could lawfully call upon the de- fendants to do for it, and therefore nothing for which it might § 347] INTERSTATE TEANSPOETATION. 518 lawfully demand compensation; that under the circumstances shown of record the obligation, of the defendants to the com- plainant involved only an acceptance and delivery of the cars at some reasonably convenient point of interchange. §347. Allowances to Terminal Railroads as a Medium of Rebating. See Section 397, post. OHAPTEE XXIV. SWITCH CONNECTIONS. Section 348. Duty of Carriers to Construct, Maintain and Operate Switch Con- nections. 349. Power of Commission to Order Switch Connections. 350. Purpose of the Statute. 351. Application for Switch Connection. 352. Location of Switch Connection. 353. Carrier has no Right to Question the Use to he made of a Switch Connection. 354. Facts to be Considered in Establishing a Switch Connection within the Limits of a Municipality. 355. Private Side Track Defined. §348. Duty of Carriers to Construct, Maintain and Operate Switch Connections. The Act to Regulate Commerce as changed by the Hepburn amendment of June 29, 1906, provides that any common car- rier subject to the provisions of said Act, upon application of any lateral, branch line of railroad, or of any shipper ten- dering interstate traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch con- nection with any such lateral, branch line of railroad, or private sidetrack which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient busi- ness to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper.^ Under the provisions of the amended statute stated above, it has become the duty of an interstate carrier to make eon- 1 Act to Regulate Commerce. Section 1. 519 § 349] INTERSTATE THANSPORTATION. 520 nection with a lateral branch road, either upon the applica- tion of that lateral line or of any shipper, upon three condi- tions : (1) That such switch connection shall be reasonably prac- ticable ; (2) that it can be put in with safety, and (3) that it will furnish sufficient business to justify the construction and maintenance of such switch connection. It should be noted that the statute does not order the con- struction of a private sidetrack by a railroad company, but simply orders .the carrier to make "a switch connection" with a private sidetrack.^ §349. Power of Commission to Order Switch Connections. T[ A. Peovision op the Statute. The Act as changed by the Hepburn amendment of June 29, 1906, provides that if any common carrier shall fail to install and operate any such switch or connection, on application therefor in writing by any shipper, such shipper may make complaint to the Commission as provided in Section 13 of the Act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation there- for, and the Commission may make an order, as provided in Section 15 of the Act, directing the common carrier to comply with the provisions of the statute in accordance with such order, and such order shall be enforced as provided in the Act for the enforcement of all other orders by the Commission, other than orders for the payment of money.^ The Hepburn amendment of June 29, 1906, conferred upon the Commission power and authority which it did not there- tofore possess. The provision is applicable only when a com- mon carrier fails to install and operate a switch connection "on application therefor in writing by the shipper."* 2 Winters Metallic Paint Co. v. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 587. 3 See note 1, supra. , i Barden & Swarthout v. L. V. Rd. Co. (1907), 12 I. C. C. R. 194. 521 SWITCH CONNECTIONS. [§ 349 Prior to the Hepburn amendment referred to, the Commis- sion relied upon the discrimination clause of the statute (Section 3) for its authority to correct abuses and preferences in the establishment of switch connections.' The Commission has exercised its present authority in a number of instances.® 1[B. Commission does not Possess Plenary Discretion as TO Advisability oe the Connection. It will be noticed that the law does not confer upon the Commission plenary discretion as to the advisability of such connection. The Act declares that the connection shall be made under certain specified circumstances and conditions. It is not contemplated by the law that appeal to the Commis- sion shall be necessary; but it is provided that in case a car- rier does not comply with the duty imposed complaint may be made by a shipper to the Commission, which shall have authority to make an order compelling the connection.^ T[ C. Commission no Authority to Order the Construction OF A Private Sidetrack. By Section 1 of the Amended Act to Regulate Commerce the Commission is authorized to order the construction and maintenance, upon reasonable terms, of "a switch connection" with any lateral branch line of railroad, or "private sidetrack which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same." From the lan- guage of this section it is clear that the Commission has no authority to order the construction of a private sidetrach by a 5 Red Rock Fuel Co. v. B. & O. Rd. Co. (1905), 11 I. C. C. R. 438. 8 Nield V. C. St. P. M. & 0. Ry. Co. (1907), 12 I. C. C. R. 202; McRae Terminal Ry. v. Southern Ry. Co. et al. (1907), 12 I. C. C. R. 270; Weleetka Light & Water Co. v. Ft. S. & W. Rd. Co. (1907), 12 I. C. C. R. 503. 7Rahway Valley R. R. Co. v. D. L. & W. R. R. Co. (1908), 14 I. C. C. R. 191. § 349] INTERSTATE TEANSPOKTATION. 523 railroad company, but that its authority is limited to ordering a carrier to make "a switch connection" with a private side- track. Certainly the Commission's authority does not em- brace the power to order a carrier to construct and maintain a sidetrack off its right of way and without direct construc- tion by the shipper to the expense incident thereto.^ 1[D. Complaint by Lateeal Branch Line Eailroad does NOT Confer Jurisdiction. The Eahway Valley Railroad made application to the Dela- ware, Lackawanna & Western Ed. Co.* for a switch connection with that road, and upon the refusal of the D., L. & "W. Rd. Co. to grant such application, petition was made to the Inter- state Commerce Commission asking that a switch connection be ordered at the town of Summit, N. J. Upon full considera- tion and investigation of all the facts the Commission ordered that the complainant be granted such switch connection with the defendant's line. "Whereupon, the Delaware, Lackawanna & Western Ed. Co. filed a bill in equity for an injunction to restrain the enforcement of the order of the Commission.^" The Court in issuing a preliminary injunction said: "That portion of Section 1 of the Interstate Commerce Act which deals with switch connections provides that any common car- rier subject to the provisions of the Act shall (in certain con- tingencies) construct, maintain, and operate a switch con- nection upon the application either of ' any lateral branch line of railroad' or of 'any shipper tendering interstate traffic for transportation. ' "Further on in the section, where provision is made for hearing, investigation, determination, and the making of an order by the Commission, it is provided that such procedure shall be had when the common carrier shall fail to install and operate such switch connection 'on application therefor in writing by any shipper,' and when 'such shipper may make complaint to the Commission.' In this part of the section 8 See note 2, supra. 9 See note 7, supra. 10 D. L. & W. R. Co. V. I. C. C. et al. (1908), 166 Fed. Rep. 498. 523 SWITCH CONNECTIONS. [§§350,351 there is no provision as to any such application or complaint made by the 'lateral branch line.' It may be that this is an oversight. Quite probably Congress intended to allow the lateral branch line, as well as the shipper, to invoke the action of the Commission, but it has not said so in this statute, and we all agree in the conclusion that it is not for this court to amend the Act. "In the case at bar there was no written application by any shipper, nor any complaint by such shipper to the Com- mission. The 'lateral branch line' was the only moving party. In the absence of such application and complaint, we think it was without power to make the order complained of." § 350. Purpose of the Statute. The Commission has stated:" "The provision of the stat- ute, as we construe it, is based upon what might be termed the 'open-gateway policy'; the thought of Congress was for the shipper — the manufacturer, the mine-owner, the lumber- man — who wishes to market his product in the widest practi- cable field and have the most direct connection therewith. Such theory is in harmony with the long-standing provision in Section 3 of the Act requiring carriers to afford all reason- able, proper, and equal facilities for the interchange of traffic between their lines, and for the receiving; forwarding, and delivery of passengers and property to and from their several lines and those connecting therewith. And it is further in step with the spirit of that requirement of Section 1 that car- riers shall furnish transportation upon reasonable request therefor and shall establish through routes and just and reason- able rates applicable thereto. These are all essentially ship- pers' provisions, and the amendment of 1906 respecting switching connections is but complementary." § 351. Application for Switch Connection. The statute provides that the shipper shall make applica- tion in writing to the carrier for switch connection.^^ Such 11 See note 7, supra. 12 See note 1, supra. §§ 352-354] INTERSTATE TRANSPORTATION. 524 application is specifically required before the shipper can file complaint with the Commission. In order for the Commission to have jurisdiction of the question it is therefore necessary that such written application be made to the carrier.^* § 352. Locaiiion of Switch Oonnection. The Commission, while retaining the right to control the location of switch tracks to private industries in accordance with the evidence, is disposed, in recognition of the risk that arises from such interruptions of through rails, to leave the location of such tracks largely to the discretion and wisdom of the carrier.^* § 353. Carrier has no Bight to Question the use to be iua4e of a Switch Connection. A carrier cannot reserve to itself, or exercise, the right to determine as to what commodities shall or shall not be moved over a switch connection and dealt in by a dealer who is located upon a siding which is connected with the carrier's line by such switch, except in so far as is necessary and proper to afford protection to life and property against the handling or storage of dangerous commodities, such as explosives or highly inflammable liquids.^^ § 354. Facts to be Considered in Establishing a Switch Con- nection within the Limits of a Municipality. Sidings and connections are frequently, if not generally, located within the corporate limits of cities or towns. It must, therefore, be remembered that in determining whether or not such connection will be ordered by the Commission in a case of which it has jurisdiction, the power and authority of those who are charged with the administration of the affairs of the municipality, including its health officers, as well as the 13 Report of I. C. C. (1907). iiWeleetka Light & Water Co. v. Ft. S. & W. Rd. Co. (1907), 12 I. C. C. R. 503. 15 See note 4, supra. 535 SWITCH CONNECTIONS. [§ 355 rights of the owners of adjoining and neighboring property, must be respected and be given full consideration.^" § 355. Private Sidetrack Defined. A private sidetrack is one that is outside the carrier's right of way, yard, and terminals, and of which the railroad does not own either the rails, ties, roadbed or right of way, and has no right of use superior to that of the shipper." 16 See note 4, supra. 17 Rules 79 and 121, Con. Rul. Bui. No. 4. CHAPTER XXV. EMBARGOES. Section 356. "Embargo" DeHned. 357. Lawfulness of Embargo. 358. Preference to Live Stock, Perishable Freight and Company's Material during Period of Embargo. 359. Duty of Shipper to keep himself Informed as to Status of Embargo. 360. Method of Forwarding Cars after Embargo is Raised. 361. Discrimination in Enforcing an Embargo. §356. "Embargo" Defined. An embargo is an order issued by a carrier against a con- necting carrier or carriers refusing to accept any or a par- ticular class of traffic to certain or all deliveries, rendered necessary by conditions beyond the carrier's control; due to congestion of traf&c on carrier's lines, act of God or other vis major. §357. Lawfulness of Embargo. Where carrier's rails are badly congested due to excessive movement of traffic, it is not unlawful for such carrier to issue embargo notices to its connecting lines refusing to receive cer- tain classes of freight, so as to avoid the further congestion of freight in junction freight yards, provided such embargo is practically maintained and enforced.^ § 358. Preference to Live Stock, Perishable Freight and Com- pany's Material during Period of Embargo. "Where an embargo is imposed upon certain kinds of freight rendered necessary by the congested condition of traffic on carrier's rails, it is not improper that live stock, perishable 1 Daish & Sons v. C. D. & C. Ry. Co. et al. (1903), 9 I. C. C. R. 513. 526 527 BMBAEGOBS. [§§ 359-361 freights, and material or supplies for the railroad should be excepted from such embargo.'' § 359. Duty of Shipper to keep himself Informed as to Status of Embargo. In the absence of a custom or course of business on the part of a carrier to notify shippers of the ending of an embargo upon its line, it is the duty of the shipper to keep himself informed.^ § 360. Method of Forwarding Cars after Embargo is Raised. When an embargo is raised it is proper for the carrier in forwarding freight received from connecting lines, to forward cars as far as practicable in the order of their receipt, so that there should be no unreasonable discrimination or preference which might be avoided.* § 361. Discrimination in Enforcing an Embargo. See Section 872, Paragraph D, post. 2Daisli & Sons v. C. D. & C. Ry. Co. (1903), 9 I. C. C. R. 513. 3 Riddle, Dean & Co. v. B. & O. Rd. Co. (1888), 1 I. C. C. R. 608; 1 I. C. R. 778. * See note 1, supra. GEAPTER XXVI. DISCRIMINATIONS, PREFERENCES AND ADVANTAGES. Section 362. Unjust Discrimination Defined and Prohibited. 363. Undue or Unreasonable Preference or Advantage Forbidden. 364. Purpose of the Prohibition against Unjust Discrimination and Undue or Unreasonable Preference or Advantage. 365. Technical Phrases used in the Statute Defined and their Usage. 366. Not all Discriminations, Preferences or Advantages Unlawful. 367. Carriers bound to afford Equal Facilities of Transportation. 368. Discrimination in Rates for Transportation of Freight. 369. Discrimination in Terminal Facilities and Charges between Com- modities. 370. Carriers Demanding Prepayment of Charges for Transportation. 371. Retention of Overcharge as Unjust Discrimination. 372. Discrimination in Distribution of Cars. 373. Discrimination in Hauling Private Cars. 374. Unjust Discrimination in Diverting Trafac Contrary to Shipper's Instructions. 375. Discrimination in Classification. 376. Special Privileges which can only be Enjoyed by Certain Shippers. 377. Discrimination in Granting Transit Privileges. 378. Discrimination between Localities. 379. Discrimination between Connecting Carriers in furnishing Facil- ities for Interchange of Traffic. 380. Refusal of Express Conipany to Extend "C. O. D." Service to Ship- ments of Liquor. 381. Preferences in Expedition of Military Traffic in Time of War. 382. Discrimination in Fares for Transportation of Passengers. 383. Ticket Brokerage as a means of Unjust Discrimination and Undue Preference. 384. Discrimination between White and Colored Passengers. "Jim Crow" Cars. 385. Through Passenger Arrangement which affects Rights of Pas- sengers beyond Terminus of Line. 386. Right of Passenger to Ride on Freight Trains if extended must be offered Impartially. 387. Jurisdiction of Interstate Commerce Commission over Unjust Discriminations and Undue Preferences. 528 539 DISCEIMINATIONS AND PKEFEKBNCES. [§§362,363 388. Reparation for Damages account of Unjust Discrimination. 389. Granting of Rebate or Concession as an Unjust Discrimination. 390. Penalty of Carrier for Unjust Discrimination and Undue or Un- reasonable Preference or Advantage. 391. Penalty of Party Receiving Favors from Carrier. §362. Unjust Discrimination Defined and Prohibited. The Act to Regulate Comnieree provides: "That if any common carrier subject to the provisions of this Act, shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any serv- ice rendered, or to be rendered, in the transportation of pas- sengers or property, subject to the provisions of this Act, than it charges, demands', collects, or receives from any other person or persons for doing for him or them a like and contem- poraneous service in the transportation of a like kind of traffic under substantially similar circumstances and condi- tions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared un- lawful. "^ The Elkins Act provides: "That it shall be unlawful for any person, persons, or corporation to ofiEer, grant, or give, or to solicit, accept or rec'eive any rebate, concession, or dis- crimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier sub- ject to the Act to Eegulate Commerce and the acts amenda- tory thereof why any such property shall by any device what- ever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and the acts amendatory thereof, or why any other advantage is given or discrimination practiced."^ §363. Undue or Unreasonable Preference or Advantage Forbidden. The Act to Regulate Commerce provides: "That it shall 1 Act to Regulate Cominerce. Section 2. 2 Elkins Act. Section 1. Regulation' — 34. § 364] INTERSTATE TEANSPOETATION. 530 be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or unreasonable prefer- ence or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular de- scription of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."' §364. Purpose of the Prohibitions against Unjust Discrimi- nation and Undue or Unreasonable Preference or Advantage. The railroad is justly regarded as a public facility which every person may enjoy at pleasure, a common right to which all are admitted and from which none can be excluded. The essence of this right is equality, and its enjoyment can be com- plete only when it is secured on like conditions by all who desire its benefits. The railroad exists by virtue of authority proceeding from the State, and thus differs in its essential nature from every form of private enterprise. The carrier is invested with extraordinary powers which are delegated by the sovereign, and thereby performs a governmental function. The favoritism, partiality, and exactions which the law was designed to prevent resulted in large measure from a general misapprehension of the nature of transportation and its vital relation to commercial and industrial progress. So far from being a private possession, it differs from every species of property and is in no sense a commodity. Its office is peculiar, for it is essentially public. The railroad, therefore, can right- fully do nothing which the State itself might not do if it per- formed this public service through its own agents instead of delegating it to corporations which it has created. The large shipper is entitled to no advantage over his smaller rival in respect of rates or accommodations, for the compensation ex- acted in every case should be measured by the same standard. To allow any exceptions to this fundamental rule is to sub- 3 Act to Regulate Commerce. Section 3. 531 DISCRIMINATIONS AND PEEFEEENOES. [§ 364 vert the principle upon which free institutions depend and substitute arbitrary caprice for equality of right.* The leading purposes of the Act to Eegulate Commerce, therefore, were to restrain carriers in the service performed by them from giving preferences, through favoritism or other- wise, whereby those least able to protect themselves, whether persons or localities or interests, would be placed at disad- vantage unjustly;' to promote and facilitate commerce by the adoption of regulations to make charges for transporta- tion just and reasonable, and to prohibit undue and un- reasonable preferences or discriminations ;° to enforce equal- ity between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circum- stances of carriage, are compelled to pay different prices therefor;'' to destroy favoritism.^ Such are the conclusions drawn from the history and language of the Act and from the decisions of the American and English courts. Even in the absence of legislative enactment or special con- tract a common carrier is bound to treat all shippers alike and can be compelled to perform this common-law duty by mandamus or other proper writ.^ No one can be compelled to engage in the business of a common carrier, but if he does so, he becomes subject to the duties imposed upon common carriers.^" The fullest power of correction is vested in the Congress, i Sixth Annual Report of I. C. C. (1892). 5 Second Annual Report of I. C. C. (1888). 6 T. & P. Ry. Co. V. I. C. C. (1896), 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940. 7 I. C. C. V. Alabama Midland Ry. Co. (1897), 168 U. S. 144, 18 Sup. Ct. Rep. 45; 42 L. ed. 414; Wight v. United States (1897), 167 U. S. 512; 17 Sup. Ct. Rep. 822; 42 L. ed. 258. sN. Y. N. H. & H. Rd. Co. v. I. C. C. (1906), 200 U. S. 361; 20 Sup. Ct. Rep. 272, 50 L,. ed. 515, affirming I. C. C. v. C. & O. Ry. Co., 128 Fed. Rep. 59. 9 Mo. Pac. Ry. Co. v. Larabee Flour Mills Co. (1909), 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. 214, affirming 74 Kan. 808, 88 Pac. 72. 10 Ibid. § 365] INTERSTATE TRANSPORTATION. 532 and the exercise of that power is demanded by the highest considerations of public welfare. §365. Technical Phrases used in the Statute Defined and their Usage. ^A. "Like Kind oe Traeeic." The term "a like kind of traffic," as used in Section 2 of the Act, does not mean traffic that is identical, but traffic that is of "a like kind" with other freight in the elements of a fair and just classification for the purpose of arriving at a just and reasonable rate.^^ UB. "Under Substantiallt Similar Circumstances and Conditions." The phrase "under substantially similar circumstances and conditions," as used in Section 2 of the Act, refers to the mat- ter of carriage, and does not include competition between rival routes. ^^ Neither does it include matters affecting indi- vidual shippers.^' For instance, a railroad company is not authorized to charge one shipper of coal a lower rate than is charged another shipper between the same tel-minals, because the former is under contracts extending over a term of years, based on lower rates which were in force when such contracts were made, while the other shipper has no such contracts.^* Inasmuch as the similarity of circumstances and conditions under which a service of carriage is rendered, under the Inter- state Commerce Act, requiring equality of rates, relate to the circumstances and conditions which affect the service only, where different coal-mining localities are grouped into a dis- 11 New York Board of Trade v. Pennsylvania Rd. Co. et al. (1891), 4 I. C. C. R. 447, 3 I. C. R. 417. 12 I. C. C. V. Alabama Midland Ry. Co. (1897), 168 U. S. 144; 18 gup. Ct. Rep. 45; 42 L. ed. 414; Wight v. United States (1897), 167 U. S. 512; 17 Sup. Ct. Rep. 822; 42 L. ed. 258, cited in Capital City Gas Co. V. Central V. Ry. Co. et al. (1905), 11 I. C. C. R. 104. 13 Pennsylvania Rd. Co. v. International Coal Mining Co. (1909), 173 Fed. Rep. 1. 1* Ibid. 533 DISCEIMIKATIONS AND PREFERENCES. [§ 365 trict for rate-making purposes, a carrier is not justified in making a different rate for the same or substantially similar service from a particular locality in such district, or on the product of a particular mine or vein, from that charged others because the difference in the product from such locality, mine or vein and that from other mines in the district is such that it can pay a higher rate and still compete in the market/^ 11 C. "Discrimination/' The use of the. word "discrimination" in Section 1 of the Elkins Act, as amended by the Hepburn Act of June 29, 1906, without the qualifying words ' ' unjust, ' ' etc., used in the origi- nal Act of February 4, 1887, was not intended to broaden the provisions of the earlier act in that respect; the word "dis- crimination" itself, as so applied, implying an unjust or un- fair distinction.^* The provisions of the Interstate Commerce Act prohibiting unjust discriminations and undue and unreasonable prefer- ences, have reference to the service rendered, and not to the person of the sender or consignee.^' ]\ D. "Like Services." In order for services to be "like" within the meaning of the statute they must be rendered at least over the same line. There can be no violation of the statute unless the services are "like."^* A carrier cannot be said to discriminate within the meaning of the statute except as between those whom it serves or whom it may lawfully be required to serve. It is not guilty of discrimination merely because it does not afford as favorable rates as others serving a different territory, though the products carried by each are brought to the same market. The law does not deal in these matters with all carriers col- lectively as a single unit or system, but its commands are 15 P. & R. Ry. Co. V. I. C. C. (1909), 174 Fed. Rep. 687. 16 U. S. V. Wells-Fargo Express Co. (1908), 161 Fed. Rep. 606. " Ibid. 18 Cattle Raisers' Association v. Ft. W. & D. C. R. Co. (1898), 7 I. C. C. R. 513. § 366] INTERSTATE TEANSPOKTATION. 534 directed to each, with respect to the services which it is re- quired to perform.^" Each case must be decided upon its own merits, and the decision in another case against other carriers operating in a different territory under essentially dissimilar circumstances and conditions affords no proper criterion therefor.^" For example : A carrier transported for one party two barrels of sugar between two points on its line, and two days later transported for another party one barrel of sugar over the same route and between the same points. Keld, That the services were like and contemporaneous within the meaning of Section 2 of the Act." A railroad company absorbed the terminal charge on live stock in one market while a charge for such service was ex- acted in another city reached by a different line. Held, That this did not constitute an unjust discrimination under the Act, since the services were not rendered over the same line and were therefore not "like" within the meaning of the statute.^^ §366. Not all Discriminations, Preferences or Advantages Unlawful. 1[ A. Statute does not Prohibit all Preferences and Advantages. It is not all discriminations that fall within the inhibition of the statute, but only such as are unjust or unreasonable.^^ A carrier may give to one locality or one commodity a prefer- ence over some other locality or some other commodity, pro- vided that preference be not undue or unreasonable.^* 10 Chicago Lumber & Coal Co. v. T. W. Ga. S. E. Ry. Co. et al., 16 I. C. C. R. 323. 20 Ibid. 21 United States v. Tozer (1889), 39 Fed. Rep. 369. 22 See note 18. supra. 23 1. C. C. V. B. & O. Rd. Co. (1890), 43 Fed. Rep. 37, affirmed 145 U. S. 263, 12 Sup. Ct. Rep. 844; 36 L. ed. 699. 24 Cattle Raisers' Assn. v. Ft. W. & D. C. R. Co. (1898), 7 I. C. C. R. 513; I. C. C. V. B. & O. R. Co., 43 Fed. Rep. 37, affirmed 145 U. S. 263; 36 L. ed. 699, 12 Sup. Ct. 844; C. N. O. & T. P. R. Co. v. I. C. C, 162 535 DISCRIMINATIONS AND PREFERENCES. [§ 366 It was not the purpose of the Act to prohibit just discrimi- nation in the transportation of persons or property.^^ The possibility that a discrimination may be just is recog- nized by Section 2 of the Act, in declaring what shall be deemed unjust.^" When traffic is not of a like hind, or when the service is not like and contemporaneous, or when the transportation is not ren- dered under substantially similar circumstances and conditions, difference in charge does not constitute unjust discrimination within the meaning of the statute.^' The language of the Act recognizes that a uniform rate be- tween different shippers is not always possible or proper ; that the time of service, the kind of traffic, and the circumstances and conditions under which it is transported, may materially change the just obligations and duties of the carrier to its patrons.^' A carrier subject to the Act is only bound to give the same terms to all persons alike under the same conditions and cir- cumstances. Any fact which produces an inequality of con- ditions and a change of circumstances justifies an inequality of charge.^' In fixing rates for differing but analogous services, the car- rier has the right to exercise an honest discretion. Trifling differences of cost or character of the services rendered do not justify disparity of charges; but where the differences are substantial either in the work to be performed or in the utility U. S. 184; 40 L. ed. 935; 16 Sup. Ct. 700; T. & P. Ry. Co. v. I. C. C, 162 U. S. 197; 40 L. ed. 940, 16 Sup. Ct. 666; I. C. C. v. C. N. O. & T. P. R. Co., 167 U. S. 479; 42 L. ed. 243, 17 Sup. Ct. 896; I. C. C. v. Ala. Midland R. Co., 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. 45. 25 United States y. C. & M. V. Ry. Co. (1904), 127 Fed. Rep. 785, 62 C. C. A. 465. 26 I. C. C. V. B. & O. Rd. Co. (1891), 145 U. S. 263; 12 Sup. Ct. Rep. 844, 36 L. ed. 699, affirming 43 Fed. Rep. 37, refusing to enforce order of Commission, P. C. & St. L. Ry. Co. v. B. & O. Rd. Co., 3 I. C. C. R. 465, 2 I. C. R. 729. 2T I. C. C. V. B. & 0. Rd. Co. (1890) r 43 Fed. Rep. 37. 28 U. S. V. Hanley (1896), 71 Fed. Rep. 672. 29 1. C. C. V. C. G. W. Ry. Co. at al. (1905), 141 Fed. Rep. 1003. § 366] INTERSTATE TEANSPOETATION. 536 and value to the person served, a fair relation of rates meets the carrier's obligation.^" The Interstate Commerce Act does not, therefore, prohibit the giving of all preferences and advantages or the production of all prejudices or disadvantages, but only those that are un- due and unreasonable." An interstate carrier is free to exer- cise all his rights under the common law to the full extent to which such exercise has not been made unlawful by the Act.^^ ^ B. Facts to be Considered in Determining whether an Unjust Discrimination or Undue Prefbeence or Dis- advantage EXISTS. In passing upon questions arising under the Act, the tribu- nal appointed to enforce its provisions, whether the Commis- sion or the courts, is empowered to fully consider all the circumstances and conditions that reasonably apply to the situation, and that, in the exercise of its jurisdiction the tribunal may and should consider the legitimate interests as well of the carrying companies as of the trades and shippers, and in considering whether any particular locality is sub- jected to an undue preference or disadvantage the welfare of the communities occupying the localities where the goods are delivered is to be considered as well as that of the com- munities which are in the locality of the place of shipment.^^ In determining whether any rate or set of rates is unjust or unreasonable, and whether any person, locality, or kind of traffic is thereby subjected to undue or unreasonable preju- dice or disadvantage, it seems entirely appropriate to take into consideration all the facts and circumstances which bear upon the relation of rates to different communities. When Congress enacted that one locality should not have undue preference in rates or facilities over another locality, or be 30Carr v. Nor. Pac. Ry. Co. (1901), 9 I. C. C. R. 1. 31 Gamble-Robinson Commission Co. v. C. & N. W. Ry. Co. (1909), 168 Fed. Rep. 161. 32 Ibid. 33 T. & P. Ry. Co. V. I. C. C, 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940 (1896). 537 DISCRIMINATIONS AND PEEFEBENCES. [§§367,368 subjected to any unreasonable prejudice or disadvantage, it opened the door for and made material any evidence which tends to throw light upon the question of undue preference or prejudice. These terms imply comparison of relative loca- tions, of natural and acquired advantages, of the reasonable- ness of charges per se and in their relation to other rates on the various lines which serve the competing localities.^* In order to constitute unjust discrimination within the meaning of the statute, the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate or other device; but in either ease it must be a lihe and contemporaneous service in the transportation of a li^e hind of traffic, under substantially similar circumstances and conditions.^^ §367. Carriers Bound to Afford Equal Facilities of Trans- portation. Common carriers are bound by every principle of justice and of law to accord equal rights to all shippers who are entitled to like treatment, both in the receiving of supplies and the shipments of their products, and a carrier who under any pretext whatsoever grants to one shipper an advantage which it denies another violates the spirit and thwarts the purpose of the law.^° § 368. Discrimination in Rates for Transportation of Freight. ^A. Cakeiees Geanting each othee Peeeeeential Eatbs Lower than aee Charged foe Same Seevice to the Shipping Public. The Commission has held that under the law a carrier or a 54 Daniels v. C. R. I. & P. Ry. Co. et al. (1895), 6 I. C. R. 458, citing Eau Claire Board of Trade v. C. M. & St. P. Ry. Co., 4 I. C. R. 65; 5 I. C. C. R. 264; Raymond v. C. M. & St. P. Ry. Co., 1 I. 0. R. 627; 1 I. C. C. R. 230; Board of Trade Union v. C. M. & St. P. Ry. Co., 1 I. C. R. 608; 1 I. C. C. R. 215. 35 1. C. C. V. B. & O. Rd. Co. (1892), 145 U. S. 263; 12 Sup. Ct. Rep. 844; 36 L. ed. 699. 86 Castle V. B. & O. Rd. Co., 8 I. C. C. R. 333. § 368] INTERSTATE TKANSPOETATION. 538 person or corporation operating a railroad or other transpor- tation line may not, as a shipper over the lines of another carrier, be given any preference in the application of tariff rates on interstate shipments, but it may lawfully and prop- erly take advantage of legal tariff joint rates applying to a convenient junction or other point on its own line, provided such shipments are consigned through to such point from point of origin and are, in good faith, sent .to such billed destination. In other words, one carrier shipping its fuel, material, or other supplies over the lines of another carrier must pay the legal tariff rates applicable to the same commodities shipped by an individual, but when a carrier is the consignee of a shipment of its own property which moves under a joint rate and is to participate in the haul of same via its own line, routing instructions of consignor to a specified junction point on the line of consignee carrier must be observed. There may be some instances, such as the movement of needed fuel, in which, in order to keep the trains or boats moving, such traffic could temporarily be given preference in movement with- out creating unjust or unwarranted discrimination. Where stock in one carrier company is owned by another carrier company, but both maintain separate organizations and report separately to the Commission, they may not law- fully carry property free for each other.'^ An interstate carrier desiring stone for ballast on its right of way, leased a trackage right over a short connecting line leading to a quarry, and proposed to purchase the stone at the quarry and haul it to its own line with its own crews and equipment: Held, That the Commission must decline to sanc- tion the arrangement for the reason that the carrier under the circumstances is a shipper and the proposed arrangement is a mere device to evade the payment of the lawful rates and would result in unlawful discrimination.^^ In Hitchman Coal & Colce Go. v. B. & 0. Bd. Co./» Clark, 37 Rule 225, Con. Rul. Bui. No. 4 (Nov. 13, 1908). 38 Rule 153, Con. Rul. Bui. No. 4 (April 5, 1909). 39 Hitchman Coal & Coke Co. v. B. & O. Rd. Co., 16 I. C. C. R. 512. 539 DISCEIMINATIONS AND PEBFEKENCBS. [§ 368 Commissioner, said: "The custom has been somewhat gen- eral in years gone by for carriers to accord to each other preferential rates lower than were charged for the same serv- ice to the shipping public. There is, however, no warrant in the common law for the theory that a carrier as a shipper over the lines of another carrier may enjoy or be given a preferred status. There is no intimation in the Act to Eegulate Com- merce that a carrier as a shipper has or may be given a status that is different from or more advantageous than that given to all other shippers. It has been suggested in justification of preferential rates on railway fuel coal that that product affords a large tonnage for the carrier that transports the coal; that it is in a sense a reciprocal arrangement; and that the shipper carrier thereby secures its fuel at a lower cost. Neither of these suggestions is persuasive. The practice cannot be upheld without removing the very cornerstone of the Act, which seeks to abolish and prevent unjust and undue discriminations and preferences. If ^ carrier may have lower transportation rates than other shippers just because it tenders a large tonnage, why may not the mine, mill, or factory that offers a large tonnage have lower rates than the mine, mill, or factory that offers a smaller tonnage? How can a carrier give such preferential rates to another carrier without un- justly discriminating in favor of some and against others of the mines or localities that it serves? Does it not neces- sarily follow that as a result of such rates one mine that has a contract for such fuel supply must secure an undue advan- tage over another mine in the same locality that has no such contract 1 "The reciprocity idea promises returns that are extremely remote and of decidedly uncertain value. It is the same idea that was advanced in support of the practice of exchanging transportation of persons for newspaper advertising and upon which the United States Circuit Court said: 'It is essential to the spirit of the statute that the value of transportation be fixed and certain. In no other way can it be held to be ex- actly the same to all. If one person may purchase it with advertising, another with labor, and another with produce, § 368] INTERSTATE TRANSPORTATION. 540 the value of which is a matter of agreement between the parties, how can it be said the schedule rate is always main- tained? Would not the rate rest in the whim of the carrier? Such is not the intent of the law. To say to one man, "You must pay cash," and to his competitor, "You may pay in service or merchandise at prices we may agree on," be it more or less than the market prices, would seem clearly to consti- tute such a difference in transportation as is condemned by the Act.'*" "There is no valid reason why the earnings of one carrier should be sacrificed or reduced in order that another carrier may secure its fuel at less cost to it. There is apparently no room for any conclusion other than that heretofore officially expressed by the Commission, that a carrier as a shipper over the lines of another carrier cannot lawfully be given any pref- erence in the application of tariff rates on interstate ship- ments; in other words, that one carrier shipping its fuel, material, or other supplies over the lines of another carrier must pay the legal tariff rates applicable to the same commod- ities shipped between the same points by an individual. The Commission adheres to the view that that is the law." T[B. Lower Eate eoe Teainloads than eoe Carloads. A lower rate for a trainload or "cargo" lots than for a single carload of freight is unlawful as violating the rule of equity and tending to defeat its just and wholesome purpose.*^ The fact that the quantity of goods tendered by one ship- per is much larger than that tendered by another shipper cannot be urged in justification of lower freight rates in favor of the former shipper.*^ If a low rate is granted on conditions 40 United States v. C. I. & L. Ry. Co. 163 Fed. Rep. 114. *i Paine Bros. & Co. v. L. V. Rd. Co. et al. (1897), 7 I. C. C. R. 218; Planters' Compress Co. v. C. C. C. & St. L. Ry. Co. et al. (1905), 11 I. C. C. R. 382; Carr v. Nor. Pac. Ry. Co. (1901), 9 I. C. C. R. 1. « Kinsley v. B. N. Y. & P. Rd. Co. (1888), 37 Fed. Rep. 181; United States V. Tozer (1889), 39 Fed. Rep. 309; Harvard Co. v. Pa. Co. et al. (1890), 4 I. C. C. R. 212; 3 I. C. R. 257; Glade Coal Co. v. B. & O. Rd. Co. (1904), 10 I. C. C. R. 226; Providence Coal Co. v. Providence & W. Rd. Co. (1887), 1 I. C. C. R. 107; 1 I. C. R. 363. 541 DISCRIMINATIONS AND PREFERENCES. [§ 368 with which only a few can comply, that rate is presumably unfair and may be extremely prejudicial to all other shippers of like traffic, because they are practically unable to meet the terms upon which it is offered.*^ 1[ C. Higher Eate for Perishable Freight than Ordinary Freight. For a special service by a carrier, such as the transportation of perishable freight, requiring quick movement, prompt de- livery at destination, special fitting of ears, their withdrawal from other service and their return empty on fast time, all in- volving greater expense to the carrier, a higher rate than for the carriage of ordinary freight is warranted by the condi- tions of the service and is reasonable and just. But the higher rate for a special service should bear a just relation to the service of the traffic, and is not wholly in the discretion of the carrier. While a carrier should be fully compensated, the public interests require that the traffic should not be rendered valueless to the producer, if the charges of the carrier have such an effect and can be reasonably reduced. The requirements of the statute that all rates shall be rea- sonable and just involves a consideration of the commercial value of the traffic, and implies that rates should be so ad- justed that producers of traffic as well as carriers may carry on their pursuits successfully, if practicable for both and without injustice to the carrier. The public good requires what is plainly the spirit of the law, that the transportation interests are not alone to be considered, but that in the just exercise of regulation, care should be taken that the lawful and necessary occupations of citizens are not unjustly bur- dened.** 43 Carr v. Nor. Pac. Ry. Co., 9 I. C. C. R. 1. ** Delaware State Grange, etc., v. N. Y. P. & N. R. Co. et al., 3 I. C. R. 554. § 368] INTEESTATE TRANSPORTATION. 543 T[D. Charging foe Weight of Barrel without making a Corresponding Charge when Oil is Shipped in Tank Cars not Unjust Discrimination. Carriers cannot be charged with discrimination against ship- pers of oil in barrels between interstate points, because they charge for the barrel package without making a correspond- ing charge upon shipments in tank cars owned by those ship- pers who can afford to build and furnish them, the carriers having none of their own, where the transportation by tank cars is more remunerative to the carriers than the transpor- tation by barrels, and the barrel shippers have made no de- mand for tank cars, and cannot use them economically for such shipments on account of the lack of facilities for unload- ing, etc.^° T[ E. Allowance for Loss by Leakage and Evaporation to Shippers op Oil in Tank Cars. Defendants allowed shippers of oil in tank cars a reduction of 42 gallons from the shell capacity of the tank for alleged waste from leakage and evaporation in transportation. The Commission held that such losses were not less proportionally when the shipment is made in barrels, and no circumstance was discovered or reason advanced which justified a conces- sion of that nature to the shipper who furnishes his own con- veyance, when no corresponding allowance is made to a rival shipper using the means of transportation provided by the carrier.*' T[ P. Difference between Eates on Flour in Sacks and in Barrels. The Commission has held that a just relation of rates be- tween flour in sacks and flour in barrels would be for the charge per barrel to be double the rate per 100 pounds in sacks, in as much as a barrel contains about 200 pounds of 45Penn. Refining Co. Ltd. v. W. N. Y. & P. Rd. Co. et al. (1908), 208 U. S. 208; 52 L. ed. 456, 28 Sup. Ct. 268, affirming 137 Fed. Rep. 343. 48 Rice V. Cincinnati &c. R. Co., 5 I. C. C. R. 193; Rice, R. & W. v. W. N. Y. & P. Rd. Co. (1890), 4 I. C. C. R. 131; 3 I. C. R. 162. 543 DISCEIMINATIONS AND PEEFBEBNCES. [§ 368 flour and is generally accepted and treated as of that weight by carriers and shippers for transportation purposes.*' T[ Gr. LOWEB EaTE ON IMMIGRANT MOVABLES THAN ON HOUSE- HOLD Goods Geneeallt. The defendant published a special rate on immigrant mov- ables between two interstate points of $60 per car, while the regular on household goods was $122 per ear between the same points. The purpose of the special tariff was to afford cheap rates to immigrants, in order to develop sparsely settled sec- tions of country: Held, That there was no dissimilarity of circumstances and conditions in the service performed as jus- tified the difference in rates; that such difference constituted unjust discrimination.*^ ][ H. HiGHEE Eate on Coal when Loaded feom "Wagons than WHEN Loaded by Tipple. Making certain charges for the transportation of coal shipped in carloads when the coal is loaded by tipple, and exacting a higher charge when it is loaded in some other way, and for that reason, is not justified by difference in cost to the carrier between different methods of loading, and renders the higher rates thus made unreasonable and unduly discrimina- tory.*' If I. Chaeging moee foe a Shoetee than foe a Longee Distance ovee the Same Line in the Same Dieection, THE Shoetee being included within the Longee Dis- TANOB. See "Long and Short Haul Clause," Chapter 8, ante. T[J. Highee Domestic Eates than Inland Division of Impoet oe Expoet Eates. Carriers are not prohibited from making rates from points in the United States to points in foreign countries, or from 47 Connor v. M. & O. Rd. Co. (1906), 11 I. C. C. R. 537. 48Elvey V. 111. Cent. Rd. Co. (1890), 3 I. C. C. R. 652; 2 I. C. R. 804. 49 Glade Coal Co. v. B. & 0. Rd. Co. (1904), 10 I. C. C. R. 226. § 368] INTERSTATE TEANSPOETATION. 544 points in foreign countries to points in the United States, of which the inland division is less than the tariff rate for the transportation of similar commodities when intended for local domestic consumption.^" The United States Supreme Court in the case of Texas & Pacific By. Co. v. Interstate Commerce Commission/^ in uphold- ing the legality of the inland proportions of through rates on import traffic which were lower than corresponding rates on domestic from ports of entry to the same inland points, stated that the following facts should be considered: That the ac- ceptance of import traffic enabled the carriers to take advan- tage of the preponderance of empty car movement from ports of entry, thus securing traffic for which any rates might be regarded as remunerative ; that the through rates were affected by competition, both of ocean and inland carriers; that the through bills of lading furnished collateral for the transaction of business, and took from the shipper and consignee the care as to intermediate charges and cost of handling, thus helping to swell the volume of business ; that the tendency of the through billing was to eliminate the obstacles between pro- ducer and consumer; that the interest of the carrier and the consuming community as well as the producing community must be taken into account; and that there was no hard and fast rule which prohibited, the carrier, in furtherance of its own interests and the interests of its patrons from making such difference in the charge on import and domestic traffic. ^^ In the ease of Pittsburg Plate Glass Co. v. P., C. C. & St. L. By. Co. et al.,^^ before the Commission, unjust discrimination soKemble v. B. & A. Rd. Co. et al. (1899), 8 I. C. C. R. 110, citing T. & P. Ry. Co. V. I. C. C, 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940. 51 Texas & Pacific Ry. Co. v. Interstate Commerce Commission (1896), 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940, reversing I. C. C. V. T. & P. Ry. Co., 57 Fed. Rep. 948, 6 C. C. A. 653; 52 Fed. Rep. 187; I. C. C. V. New York Board of Trade, etc., v. Pennsylvania Co. et al. (1891), 3 I. C. R. 417; 4 I. C. C. R. 447. 52 Ibid. 53 Pittsburg Plate Glass Co. v. P. C. C. & St. L. Ry. Co. et al. (1908), 13 I. C. C. R. 87. 545 DISCRIMINATIONS AND PEEFEKENCES. [§ 368 in the rates against domestic shipments of plate glass in favor of import shipments was alleged, on the ground that the rates on the former were relatively higher than the inland rail proportion of the total charge from the point of origin in a for- eign country. The Commission following the law as inter- preted by the Supreme Court in Texas & Pacific Ry. Co. v. Inter- state Commerce Commission, supra, stated that it could not con- sider such disparity in rates alone as constituting unjust dis- crimination. That in considering the question of alleged unjust discrimin- ation in favor of shippers of import plate glass moving from the ports of entry in this and adjacent foreign countries to interior American destinations, and against domestic shipments between points in the United States, it is the duty of the Com- mission to look to the circumstances and conditions affecting the matters involved, not only in this country, but in the entire field of commerce, here and abroad. That it is well settled by the highest judicial authority that the existence and effectiveness of competition between carriers, whether by rail or water, whether subject to the Federal Act of regulation or not, and competition of markets, or the absence of such com- petition, are, among other things, pertinent to the question of similarity of circumstances and conditions, and as to whether the discrimination coniplained of and shown is or is not un- due or unreasonable. That to make the total through charge from a foreign point of origin the absolute measure of the rate to be charged on domestic traffic from the port of entry in this country through which the import shipment moves would be to establish a hard and fast rule difficult if not impossible for the rail carriers in this country to conform to in the establishment and publica- tion of their rates, in view of that uncertain and flexible ele- ment involved in the ascertainment of the total through charges, to wit, the rates to the port. That discriminations of the nature referred to in Sections 3 and 4 of the Act, in so far as they result from the bona fide action of a carrier in meeting circumstances and conditions Regulation — 35. § 368] INTEKSTATE TKANSPOKTATION. 546 not of its own creation, and which are reasonably necessary for that purpose, do not of necessity fall under the condem- nation of the law. That transportation from a seaport of the United States or an adjacent foreign country to an interior American destina- tion, in completion of a through movement of freight from a point in a foreign but not adjacent country, whether upon a joint through rate or upon separately established or propor- tional inland rate applicable only to imports moving through, is not a "like service" to the transportation of traffic starting at such domestic port, though bound for the same destination. That as held in numerous decisions of the Supreme Court, it is neither required by law nor just, that the rates of a car- rier on traffic subject to intense competition shall mark the limit or measure of its rates on traffic not subject to such com- petition. That being bound to consider the more intense com- petition to which the transportation of the foreign product is subject as one of the ' ' circumstances and conditions ' ' affect- ing the relative adjustment of rates, the Commission cannot, solely upon a basis afforded by a comparison of the inland proportion of the through rate from the foreign point of origin with the rate applying on domestic shipments of plate glass in this country, condemn the latter as unreasonable or unjustly discriminatory. The above relation of rates does not render nugatory the pro- tection to American manufacturers and producers intended by the tariff duties. The Supreme Court in Texas & Pacific Ry. Co. v. Interstate Commerce Commission, supra, said : One reading of the Act does not disclose any purpose or Intention, on the part of Congress, to thereby reinforce the provisions of the tariff law. These laws differ wholly in their objects from the law to regulate commerce. Their main purpose is to collect revenues with which to meet the expenditures of the Government, and those of their provinces, whereby Congress seeks to so adjust rates as to protect American manufacturers and producers from competition by foreign low-priced labor, operate equally in all parts of the country. 547 DISCEIMINATIONS AND PKEFEEENCES. [§ 368 ^ K. Assessment oe Highee Eate on Teaffic Oeiginating ON Lines of Connecting Caeeiees than when Oeig- INATIN6 ON OWN LiNE. On shipments of flour and other grain products defendant had in force certain rates for transportation between points on its own line and an arbitrary of 5 cents per 100 pounds to be applied in addition to its regular transportation charges to shipments received from connecting lines. Held, That the 5-cent arbitrary was unjust and unreasonable." IfL. Division of Theough Eate Lowee than Local Eates BETWEEN Same Points. It is not unlawful for a carrier to accept as its proportion of a through rate a less sum than it charges for a like service which is local to its own line;^^ neither will the fact that a disparity between through and local rates is considerable, of itself, be regarded as conclusive evidence of undue discrimina- tion.=* The divisions of a through rate between the carriers in a line of transportation furnish no fair or just criterion by which to measure the intermediate local rates on the same line of transportation.^'^ Neither can local rates be made the measure of what a carrier shall accept as its division of a through rate.^^ The local rate collected by the defendant on shipments of 54Blackwell Milling & Elevator Co. v. M. K. & T. Ry. Co. (1907), 12 I. C. C. R. 24, cited and applied in Ponca Milling Co. v. M. K. & T. Ry. Co. (1907), 12 I. C. C. R. 26; see also Bigbee & Warrior Rivers Packet Co. v. M. & O. Rd. Co. (1893), 60 Fed. Rep. 545; Hilton Lum- ber Co. v. N. & W. Rd. Co. et al. (1901), 9 I. C. C. R. 17. 55 Parsons v. C. & N. W. Ry. Co. (1897), 167 U. S. 447; 17 Sup. Ct. Rep. 887; 42 L. ed. 231; Rice R. & W. v. W. N. Y. & P. Rd. Co. (1888). 2 I. C. C. R. 389; 2 I. C. R. 298. 56 T. & P. Ry. Co. V. I. C. C. (1896), 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940; Omaha Cooperage Co. v. N. C. & St. L. Ry. Co. et al. (1907). 12 I. C. C. R. 250. seaMcMonan et al. v. G. T. Ry. Co. et al. (1889), 3 I. C. C. R. 252; 2 I. C. R. 604. sTLippman & Co. v. 111. Cent. Rd. Co. (1889), 2 I. C. C. R. 584; 2 I. C. R. 414. § 368] IITTERSTATE TKAISTSPOKTATION. 548 sugar from Hannibal, Mo., to Heller, Kan., was higher than the proportion of the through rate from Chicago via Hannibal to Heller collected by the defendant for the haul between Hannibal and Heller. Held, That the circumstances and con- ditions attending the service in each case were substantially- dissimilar, and that the charging of the higher local rate was not an unjust discrimination as against the shipper at Hanni- bal.=« TI M. GrEOUP Eates. A group rate for a particular district upon a commodity for which a large demand exists, and intended to place the pro- ducers in the district upon an equality among themselves and with producers of the same commodity from other districts, all competing in a common market, is not unlawful merely on account of differences in the geographical location of different producers and their respective distances from the market.^' Actual undue prejudice or damage of which the rate is the cause must result to the more favorably situated producers to render a group rate unlawful."" 11 N. Discrimination between Competitive Articles in the Same Markets. The provisions of the third section of the Act to Regulate Commerce prohibiting carriers from making or giving any un- due or unreasonable preference or advantage to any particular person, firm, company, corporation or locality, or any particu- lar description of traffic, in any respect whatsoever, not only applies to relative rates on one description of traffic shipped to or from competing localities, but also to relative rates on differently described articles which are competitive in the same markets ; and when carriers have established rates on articles 58 United States v. Tozer (1889), 39 Fed. Rep. 369. See similar cases, Detroit Board of Trade v. G. T. Ry. Co. et al. (1888), 2 I. C. C. R. 315, 2 I. C. R. 199; Chamber of Commerce, etc., v. F. & P. M. Rd. Co. et al. (1889), 2 I. C. C. R. 553; 2 I. C. R. 393; Poughkeepsie Iron Co. v. N. Y. C. & H. R. Rd. Co. et al. (1890), 4 I. C. C. R. 195; 3 I. C. R. 248. 09 Imperial Coal Co. et al. v. P. & L. E. Rd. Co. et al., 2 I. C. R. 436. 00 Ibid. 549 DISCRIMINATIONS AND PREFERENCES. [§ 368 of competitive traffic which are relatively reasonable and fair, they cannot arbitrarily select particular articles of such traffic and materially raise or lower rates so established thereon without violating that provision of the statute.*^ The relating of rates ought to rest upon fixed and stable con- ditions. The fluctuations of markets are so frequent, especially as to competitive articles, and ofttimes unexpected, that com- mercial considerations alone would not furnish a sufficiently stable and fixed rule for guidance in making a rate that should remain substantially permanent through all fluctuations. The Commission does not, by a fixing of rates, attempt to overcome advantages which one producer or dealer may have in his geographical location, and to produce equality between com- petitors in all markets. It would be a useless task, even if it had the power, to attempt to accomplish such a result. The proper relation of rates for transportation of strictly com- petitive articles over the same line should be determined by reference to respective costs of service ascertained with reason- able accuracy."^ For example : Live hogs, live cattle and the dressed products of each are competitive commodities and are therefore entitled to relatively reasonable rates for transporta- tion proportioned to each other according to the respective costs of service. °^ H 0. Higher Eates eor Espoet than Domestic Traffic. It is unreasonable to exact more for an export shipment than for the movement of the same quantity for domestic use."* H P. Bates on Consolidated Carloads of Lbss-than-Carload Shipments. When Owner of Goods is Shipper. In the case of The Buckeye Buggy Co. v. C. 0. C. & St. L. By. ei Squire & Co. v. M. C. Rd. Co. et al. (1891), 3 I. C. R. 515. 82 Ibid. 63 Ibid. 64 Newark Machine Co. v. P. C. C. & St. 1j. Ry. Co. et al. (1909), 16 I. C. C. R. 291. § 368] INTEESTATE TRANSPORTATION. 550 Co. et al.,"^ the Commission held, that before allowing a carload rating to a carload shipment a carrier is entitled to require that the goods shall be loaded at one time and place, that but a single bill of lading shall be issued, and that the shipment shall be from one consignor to one consignee, but that when the goods are so loaded and by the terms of sale become the property of the consignee upon delivery to the carrier, the carrier has no right to inquire whether the consignee obtained his title from one or several owners; and that if it accords the carload rate in case the consignor is the owner, failure on its part to extend the same privilege when the consignee is the owner, violates Sections 1, 2 and 3 of the Act to Regu- late Commerce. The Commission ordered that the rule in defendant's classi- fication covering the application of carload rates to carload lots should be so modified as to accord the same rating -to consignor and consignee when the condition of ownership after the property is delivered to the carrier is the same. When Shipper is a Forwarding Agent having no Interest in the Goods Transported. In Lundquist et al. v. Grand Trunh Western By. Co. et al.,^^ the Circuit Court for Northern District of Illinois held that a railroad company is not required by the Interstate Commerce Act to give the same carload rates on interstate shipments to forwarding agents who solicit property for shipment from different owners, each having less than a carload, and combine it into carload lots, that it. makes a carload shipment by a single owner; the charges in such case not being for "a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions," so as to render the difference in the rates made an unlawful discrimination under Section 2 of the Act. In 65 The Buckeye Buggy Co. v. C. C. C. & St. L. Ry. Co. et al. (1903), 9 I. C. C. R. 620; applied and followed in Bell Company v. B. & O. S. W. Rd. Co. et al. (1903), 9 I. C. C. R. 632. ee Lundquist et al. v. Grand Trunk Western Ry. Co. et al. (1901), 121 Fed. Rep. 915. ' 551 DISCRIMINATIONS AND PREFERENCES. [§ 368 the case of California Commercial Association v. ]YeUs, Fargo if- Co.,^'' before the Commission, a number of packages of mer- chandise, aggregating 16,000 pounds in weight, were assembled in New York by the complainant's agent and offered to de- fendant at one time and one place, consigned under one bill of lading to the complainant, a voluntary association of San Francisco merchants. Defendant's tariff provided a rate of $8 per 100 pounds for shipments of 10,000 pounds and less than 20,000 pounds. Applying its rule as to "bulked shipments in- tended to be distributed by the consignee," defendant charged its parcel rate against each separate package. The Commis- sion held, that the rule against "bulked shipments" is illegal; that the law does not justify the classification of shippers with regard to their interest in the property shipped; that ownership of property tendered for shipment cannot be made a test as to the applicability of a carrier's rates; that in gathering several packages of goods together and shipping them under the carrier's rates on large shipments, a shipper is not by device evading the law, but is legally availing him- self of the rates which the carrier offers ; that the cost of car- rying a "bulked shipment" is not greater than the cost of carrying the same amount of freight at the instance of an in- dividual owner; that the charge must therefore be the same in each case. So in the case of Export Shipping Company v. Waiash Rd. Co. et al.,'^ the complainant delivered to defendants in Chicago for transportation to New York three carloads of freight con- sisting of a number of packages of various ownership, as- sembled by complainant before delivery to the carrier, and each consigned under a single bill of lading to a single con- signee. On arrival in New York the delivering carrier refused to apply the carload rate, but in accordance with the note to Rule 5-B and Rule 15-E of the Official Classification, assessed the less-than-carload rates. 67 California Commercial Association v. Wells, Fargo & Co. (1908), 14 I. C. C. R. 422; see also California Commercial Assn. v. Wells, Fargo & Co. (1909), 16 I. C. C. R. 458. 68 Export Shipping Company v. Wabash Rd. Co. et al. (1908), 14 I. C. C. R. 437. § 368] INTERSTATE TKANSPOETATION. 552 The Commission held that note to Rule 5-B and Rule 15-E are unlawful, basing its opinion on California Commercial Association v. Wells, Fargo & Co., supra. Chairman Knapp and Commissioner Harlan dissented to the majority opinion in both of the last named eases,"^ holding in the main that Official Classification, Rule 5-B note, provid- ing that carload rates shall apply to cars loaded with different packages intended for different consignees only when the con- signor or consignee is the actual owner of the property, and Rule 15-E, declaring that shipments of property combined into packages by forwarding agents claiming to act as consignor will only be accepted when the names of individual consignors and consignees, as well as the character and contents of each package are declared to the forwarding railroad agent, when the property will be waybilled as separate shipments and freight charged accordingly, are reasonable and valid, and are not violative of the Interstate Commerce Act prohibiting dis- crimination, and requiring equal charges to all for the same or like and contemporaneous service ; there being a substan- tial dissimilarity of circumstances and conditions relating to the matter of carriage of carload freight assembled by for- warding agents and the transportation of carload freight, though made up of shipments to various consignees, where the consignor or consignee is the owner of the property. In the Export Shipping Co.'"' case, the D. L. & W. Rd. Co. filed a bill in equity in the Circuit Court, S. D. New York,''^ asking for an injunction suspending the operation of the order of the Commission. The Court granted a preliminary injunc- tion stating, that a majority of the Court is in. accord with the reasoning and conclusions expressed in the dissenting opinion of the Chairman of the Commission." The American Forwarding Co., Trans-Continental Freight 89 Read Chairman Knapp's able dissenting opinion in Export Ship- ping Co. V. Wabash R. R. Co., 14 I. C. C. R. p. 440. 70 See note 68, supra. '1 Delaware, L. & W. R. Co. et al. v. I. C. C. et al. (1908), 166 Fed. Rep. 499. '2 See note 69, supra. 553 DISCRIMINATIONS AND PEEFEEENCBS. [§ 369 Co. and Rockford Manufacturers' & Shippers' Association were granted leave of Court to intervene as parties defendant, at the request of the CommiBsion.'^ § 369. Discrimination in Terminal Facilities and Charges between Commodities. t[a. diffenence in terminal facilities on different Commodities. Transportation' between defendant's terminal in Brooklyn and its rail terminus in Jersey City was effected by water carriage across New York Harbor. The action of defendant in discontinuing "track delivery" for hay in carloads at its sta- tion in Brooklyn, though it continued to make such delivery for other carload traffic, was taken to relieve a state of chronic congestion at that station, resulting largely from consignments of hay thereto. It continued delivering carload hay alongside wharves in Brooklyn as it did at other points within the ligh1> erage district of New York. Held, That the resulting discrim- ination against hay in carloads was not "unjust" within the meaning of the Act to Regulate Commerce. A common carrier of interstate commerce, is not in every ease under legal compulsion to furnish the same terminal facilities for aU description of traffic ; it is sufficient if reason- able provision is made in this regard, and what is reasonable in a given instance depends largely upon the conditions and surroundings of the particular locality." TfB. Absorption of Terminal Charge on "Dead" Freight AND Assessment op Sale on Live Stock. The imposition at a certain locality of a terminal charge upon live stock, while no similar charge is imposed upon "dead" freight, is not a discrimination under the statute against live stock and in favor of dead freight.'^' 73 D. L. & W. R. Co. V. I. C. C. (1909), 169 Fed. Rep. 894. ^i Palmer Dock Hay & Produce Board of Trade v. P. R. R. Co., 9 I. C. C. R. 61. 73 See note 18, supra. § 370] INTERSTATE TRANSPORTATION. 554 § 370. Carriers Demanding Prepayment of Charges for Transportation. T[A. Eight op Carrier to Eequire Prepayment prom One Consignee and to Give Credit to Another. An interstate carrier does not subject a consignee to an undue or unreasonable prejudice or disadvantage under Sec- tion 3 of the Interstate Commerce Act by exacting, after due notice to it, the prepayment of charges for transportation of all property consigned to it, while it does not require such charges to be paid in advance upon freight consigned to others similarly situated.'" A common carrier has the right under the common law to demand the prepayment of charges for freight of one, and to give credit for them to another similarly situated. H B. Where Carrier in Order to Injure and Harass the Consignee Demands Prepayment op Charges. The fact that a carrier for the purpose of injuring the busi- ness of a consignee, or harassing it, subjects it to a prejudice or disadvantage which is neither undue or unreasonable, does not change the nature of the prejudice or disadvantage or create any cause of action therefor.''^ The plaintiff is a corporation engaged in buying, selling and dealing for commissions in fruit, vegetables, and dairy prod- ucts at Minneapolis, and it has offices at St. Paul, Rochester, and Mankato, in Minnesota, and Aberdeen in South Dakota. The defendant is a common carrier. It has railroad stations at those towns, and lines of railroad through those states and adjoining states. It is the custom and usage of such carriers, and of the defendant, for the terminal carrier to advance the charge of connecting lines upon freight consigned to parties at those stations, to transport the freight and deliver it to the consignees, also to receive freight at its stations and to trans- port and deliver it to the consignees, to hold the bills until the questions regarding the correctness of the charges on its 76 See note 31, supra. T' Ibid. 555 DISCRIMINATIONS AND PEBFEEENCES. [§§ 371, 373 lines and on the connecting lines have been adjusted, and then to collect the bills of the consignee. From a bad motive the defendant, after notice, refused to advance charges to connecting lines, to receive and transport freight consigned to the plaintiff, unless the charges upon it for transportation were prepaid, vsrhile it continued to give credit to other con- signees similarly situated according to the usage and custom/^ Reld, These acts did not subject the plaintiff to undue or unreasonable prejudice or disadvantage within the meaning of the Interstate Commerce ActJ° §371. Retention of Overcharge as Unjust Discrimination. The retention of an overcharge has all the effect of extortion and unjust discrimination against the person from whom its payment has been required, and when the refund of an exces- sive charge has been unnecessarily delayed for a considerable period the officials responsible therefor become fairly charge- able with wilful intention to violate the law.'" § 372. Discrimination in Distribution of Cars. T[A. Duty of Caeeiers to Treat Shippees Alike in Distri- bution OE Caes. It is not the business of the shipper to furnish the vehicle of transportation. That is the duty of the carrier. Under its franchise the carrier must do more than construct his road- way. He milst equip it with the means of transportation, and these means, of whatever style or pattern, must be open im- partially to all shippers of like traffic. If the carrier hire or arrange in any manner for the use of vehicles he does not own, he has one or two things to do: He must furnish like vehicles to all competitors in the traffic, or must be careful to 78 See note 31, supra. 79 Ibid. 80 Jerome Hill Cotton Co. v. M. K. & T. Ry. Co. (1896), 6 I. C. C. R. 601; Phelps & Co. v. T. & P. Ry. Co. (1893), 6 I. C. C. R. 36, 4 I. C. C. R. 363. § 373] INTERSTATE TKANSPOETATION. 556 make no unjust discrimination and give no undue preference in his rates.*^ Every shipper is legally entitled to fair treatment in the use of these public utilities, and any discrimination which in substantial degree deprives shippers of such use must be con- sidered unjust, unless forced by justifying conditions.^^ The Interstate Commerce Act was intended, among other things, to secure an equal and fair distribution of car facili- ties to all shippers similarly situated. The amendment to Section 1 of the Act of June 29, 1906, is as follows: It shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon a reasonable request therefor. By reference to the body of this section it will be seen that the word "such" refers to the previous sentence of the Act, which, among other things, provides that : The term "transportation" shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, ir- respective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation and transfer in transit, storage and handling of property transported. It was evidently the intention of Congress, in the employ- ment of the term "transportation," to include all kinds of instrumentalities of shipment and carriage, and the one ex- plicit requirement of the entire section is that there shall be just and reasonable charges in connection with the "transpor- tation of persons or property as aforesaid," and that cars shall be furnished "irrespective of ownership or of any con- tract, express or implied, for the use thereof." Section 3 of the Act provides that : It shall be unlawful for any common carrier subject to the pro- visions of this Act to make or give any undue or unreasonable prefer- ence or advantage to any particular person, company, firm, corpora- tion, or locality, or any particular description of trafiBc, in any respect whatsoever, or to subject any particular person, company, firm, cor- 81 Rice R. & W. V. W. N. Y. & P. R. Co., 4 I. C. C. R. 149; 3 I. C. R. 162. 82 Richmond Elevator Co. v. P. M. Rd. Co., 10 I. C. C. R. 629; see Glade Coal Co. v. B. & 0. Rd. Co. (1904), 10 I. C. C. R. 226. 557 DISCKIMINATIONS AND PEEFERBNOES. [§ 372 poration or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Section 1, as amended, and Section 3, confer certain rights upon shippers, and it is clearly provided, among other things, that there shall be no discrimination against or in favor of those similarly situated by the common carrier in furnishing means of transportation. Section 1 makes it the duty of the railroad to provide and furnish such transportation upon a reasonable request therefor, and Section 3 is intended to secure to the shipper the same treatment with reference to facilities for transportation. Section 3 provides that all ship- pers shall have a just equality of facilities, and Section 1 pro- vides that all shippers shall be given a just and equal suffi- ciency of facilities. This is a wise provision, and was intended to prevent common carriers from either directly or indirectly giving certain shippers an undue preference in the distribu- tion of car service. In the absence of such legislation provid- ing the means by which summary relief could be afforded the shipper, it would be an easy matter for the common carrier, by favoritism, to build up one class of shippers and at the same time utterly destroy the business of another class simi- larly situated, and it was to prevent this kind of discrimina- tion that this Act and the Acts amendatory and supplemental thereto were passed.*' ^B. Coal Cars must be Distributed without Favoritism. It is the duty of a railroad company, in effecting coal-car distribution among mines located on and shipping coal over its line, not to discriminate or show any undue favoritism.** When the equipment of a carrier usually applied to the transportation of a particular article (here, gondola cars for the transportation of coal) is not equal to the demand made 83 United States v. B. & O. R. R. Co. et al. (1908), 165 Fed. Rep. 113, 91 C. C. A. 147. 84 United States, ex rel. Kingwood Coal Co., v. W. V. N. R. Co. et al. (1903), 125 Fed. Rep. 252, affirmed in 134 Fed. Rep. 198; 67 C. C. A. 220; United States v. N. & W. Ry. Co. (1906), 143 Fed. Rep. 266, 74 C. C. A. 404, reversing 138 Fed. Rep. 849. § 373] INTERSTATE TRANSPORTATION. 558 upon it, it is its duty to appropriate other cars to such service or to obtain cars elsewhere. A carrier is not justified in refus- ing to furnish any cars for the transportation of coal to a cer- tain point on its line, by the fact that it could at the time make more money by using its regular coal cars on another portion of its line, where return loads were obtainable and nfore frequent trips could be made, thus enabling it to serve a larger number of customers with a smaller number of cars.*' 1[ C. Shipper mat not Complain of Eeasonablb Etjle of Car Distribution. If a system of coal-car distribution applied by a railroad company in a given field is, under the circumstances and con- ditions peculiar to that field, a reasonable one, and fair to all, and is applied to all alike, no shipper has just cause for com- plaint.^" ^ D. Discrimination in Enforcing an Embargo. "Whatever may be said of an embargo against one commod- ity only in time of congestion, nothing can be said for an embargo which refuses transportation facilities to some estab- lishments while according such facilities to their competitors. If the exercise of such a power were to be tolerated, carriers would be able to issue sentence of commercial death against some of their patrons, while continuing to serve others.*^ §373. Discrimination in Hauling Private Cars. The regulating statute is opposed to every species of favor- itism, and seeks to secure like treatment for all persons in like relations to the carrier. The defendant may decline to haul private cars at all, no matter by whom owned or for what purpose used, and a uniform rule to that effect would be en- tirely consistent with its public obligations. A railroad may also haul private cars of a certain class, and refuse at the same 85 Riddle, Dean & Co. v. N. Y. L. E. & W. Rd. Co. et al., 1 I. C. R. 787; 1 I. C. C. R. 594. 86 United States v. N. & W. Ry. Co. (1901), 109 Fed. Rep. 831. 87 Rogers & Co. v. P. & R. Ry. Co., 12 I. C. C. R. 309. 559 DISCRIMINATIONS AND PREFERENCES. [§§ 374, SI'S time to haul others of a wholly or substantially different class. In either case, however, there should be no avoidable parti- ality. It is not a question of convenience, much less is it a question for arbitrary decision. A well-defined and reasonable policy should be adopted, and that policy should be observed to the fullest practicable extent.^^ § 374. Unjust Discrimination in Diverting TrafiSc Contrary to Shipper's Instructions. The action of a carrier in diverting through traffic from a shorter route over which it participates in carriage, so as to secure for itself greater aggregate revenue through a long haul by a different route over which it is also engaged in trans- portation, sometimes results in discriminations and prejudices, both as to rates and facilities, and inequality in treatment of shippers and localities having no other justification than this end, is indefensible. ^^^ § 375. Discrimination in Classification. The legal duty of common carriers to so classify traffic and fix charges thereon that the burden of transportation shall be reasonably and justly distributed among the articles they carry arises under the obligation imposed upon them not to charge unreasonable or unjust rates or to inflict any unjust discrimination or undue prejudice in any respect whatsoever; and even in eases where the need of additional revenue is apparent the carrier cannot arbitrarily select some one or more articles upon which to apply higher rates regardless of the relation which such article or articles bear to other com- modities commonly offered for transportation.*' The carrier can perpetrate unjust discrimination against a shipper in violation of the statute by differences in classifica- tion as well as in any other way.°° 88 Carr v. Nor. Pac. Ry. Co., 9 I. C. C. R. 1 (1901). 88a Colorado Fuel & Iron Co. v. Southern Pacific Co., 6 I. C. R. 488. 89 Nat'l Hay Assn. v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264. 90 N. Y. Board of Trade v. Pa. Rd. Co. (1891), 4 I. C. C. R. 447; 3 I. C. R. 417; Bates v. Pa. R. R. Co. et al., 2 I. C. R. 715. § 376] INTERSTATE TKANSPOETATION. 560 When classification is used as a device to effect unjust dis- crimination or as a means of violating other provisions of the Act to Regulate Commerce, the statute requires the Commis- sion to so revise and correct such classification and arrange- ment as to correct the abuse. ^^ If the elements which fix the class are substantially the same in case of tvro articles, then those articles should, as a matter of law, be classified alike, and to put one in one class and another in another class would be a discrimination and a violation of the Act to Regulate Commerce, no matter what the purpose of doing it might be.^^ To show that some one article of freight in a class is charged a much higher or lower relative rate than it ought to be charged when compared with another in that or some other class, may, under all the circum- stances, establish the result that a mistake has been made in its classification that amounts to an unjust discrimination."^ § 376. Special Privileges which can only be Enjoyed by Cer- tain Shippers. ' A railroad company by granting a privilege which, although ostensibly open to the whole public, can, in the nature of things, only be taken advantage of by certain shippers, creates thereby a discrimination which may or may not be undue, according to the circumstances in each case.'* Any regulation or practice that withdraws from a shipper the equal opportunity of taking advantage of the rates offered by a carrier, is a regalation or practice "affecting rates" within the meaning of that phrase as used in Section 15 of the Act.'^ 91 Coxe Bros. Co. v. L. V. R. Co., 3 I. C. R. 460, affirmed in Schu- macher Milling Co. v. C. R. I. & P. (1893), 6 I. C. C. R. 61; 4 I. C. R. 373. 92 Rea V. M. & O. R. R. Co. (1897), 7 I. C. C. R. 43. 93jas. Pyle & Sons v. E. T. V. & G. R. Co. (1888), 1 I C. R. 767; 1 I. C. C. R. 473. 94 Traffic Bureau of Merchants' Exchange, etc., v. C. B. & Q. Ry. Co. et al., 14 I. C. C. R. 317. 95 Rail & River Coal Co. v. B. & O. Rd. Co., 14 I. C. C. R. 86. 561 DISCRIMINATIONS AND PEBEEEENCES. [§ SV? § 377. Discrimination in Granting Transit Privileges. 11 A. Caeeiees must not Disceiminatb in Allowing Transit Peivilegbs. Stopping a commodity in transit for treatment or recon- signment is in the nature of a special privilege which the carrier may concede, but which the shipper, under the present state of the law, cannot demand as a matter of lawful right; but carriers may not unjustly discriminate between markets or individuals in the granting of such privileges.'* TIB. DiSCEIMINATION BETWEEN MANUFACTURED PRODUCTS. There is much to be said in favor of milling and manu- facturing in transit, and there is much that can be said about the irregular and discriminatory practices that are invited and possible thereunder. There is, of course, a limit to the products which can reason- ably be included in the list of those which will be transported at the raw material rate, either with or without a transit privi- lege. It might be reasonable to withhold transit privilege from a product that is essentially different from the raw ma- terial and from the other products of the same raw material which are accorded transit rates, as, for example, a liquid product of grain ; but it is clearly discriminatory to single out one or more of several milled products of grain and withhold from it or them transit privilege which is granted at that or some other competitive point to other milled products of grain substantially similar in character, value, and packing, and which are transported under substantially the same conditions, attended by substantially equal risks, where there is competi- tion between the millers of the grain either in marketing their product or in securing their material for milling."^ 96 St. Lous Hay & Grain Co. et al. v. M. & O. Rd. Co. et al. (1905), 11 I. C. C. R. 90; Shiel & Co. v. 111. Cent. Rd. Co. et al. (1907), 12 I. C. C. R. 210. 87 Douglas & Co. V. C. R. I. & P. Ry. Co. et al. (1909), 16 I. C. C. R. 233. Eegulation — 36. § 378] INTERSTATE TRANSPORTATION. 562 U C. Discrimination between Localities in the Allowance OP Transit Privileges. Defendants granted certain allowances on free services in the elevation, transfer, mixing, cleaning and other handling of grain at Kansas City, Mo., Argentine, Leavenworth and Kansas City, Kas., which were withheld by them at Atchison, Kas., to which point they had established the same rates as those in force at said other cities. Held, That such practice was unlawful and that defendants should not furnish at Kan- sas City, Mo., Kansas City, Leavenworth or Argentine, Kas., elevation allowances or other free services in connection with the elevation, transfer, mixing, cleaning, clipping, drying, weighing, storage, loading out or shipment of grain which were not at the same time granted or furnished in like or equivalent service or allowance to the same degree and extent at Atchison.^' Allowance by a carrier to shippers in one territory of the privilege of milling in transit must be without wrongful preju- dice to the rights of shippers in another territory served by the same line.^" §378. Discrimination between Localities. T[ A. Provision of the Statute. The Act to Kegulate Commerce declares that it shall be un- lawful for any common carrier subject to its provisions to make or give any undue or unreasonable preference or advan- tage to any particular locality in any respect whatsoever, or to subject any particular locality to any undue or unreason- able prejudic£ or disadvantage in any respect whatsoever.^"" 1[ B. A Locality is Entitled to the Benefit of its Natural Advantages. Advantages of location, such as proximity to a navigable 98 City Council of Atchison v. Mo. Pac. Ry. Co. et al. (1907), 12 I. C. C. R. Ill; motion for rehearing denied; 12 I. C. C. R. 254. 99 Koch V. Pa. Rd. Co. et al. (1905), 10 I. C. C. R. 675. 100 See note 3, supra. 563 DISCEIMINATIONS AND PREFERENCES. [§ 378 stream or strong competition between carriers, naturally re- sults in lower rates to a town so situated, and it is not in the province of the Commission to disturb the resulting rate rela- tion unless the discrepancy is so great as to effect an unjust discrimination against the noncompetitive point.^"^ Natural advantages of location are neither to be enlarged or minimized by the Commission, whose duty and purpose is to secure just and reasonable transportation rates, as nearly equal as possible for all localities and individuals, having due regard to differences of circumstances and conditions.^"^ Manufacturing industries should not be deprived, through a carrier's adjustment of relative rates, of advantages result- ing from their favorable location in respect of cost of raw material supplied from a common source, or of distance to the common market for the finished product.^"^ Neither have carriers the right to disregard such distances and natural ad- vantages for the purpose of bringing about commercial equality."* A town favorably situated with respect to one through route, but competing in a common market with another town more favorably situated on another through route, should not have a reduction of the local rate over roads connecting the two through routes for the purpose of overcoming the natural ad- vantage which the latter competing town enjoys. A milling town possessing great natural, acquired and im- proved advantages for the carrying on of that industry, and favorably situated in point of distance to a large grain-pro- ducing region, is entitled to the benefits arising from its loca- tion and carriers of grain to that point and to a competing town considerably more remote from points of production, and in other particulars less advantageously located, are not jus- 101 Payne & Gardner Co. v. L. & N. R. R. Co., 13 I. C. C. R. 638. 102 Enterprise Mfg. Co. et al. v. Georgia Rd. Co. et al., 12 I. C. C. R. 451. 103 James & Abbott v. Can. Pac. Ry. Co. et al., 4 I. C. R. 274. 104 Commercial Club, etc., v. C. R. I. & P. Ry. Co. et al., 6 I. C. R. 647. § S'l'S] INTEESTATE TEANSPOKTATION. 564 tified in making rates on grain to the competing towns which destroy the advantage the former is entitled to enjoy.^"^ If C. DiSCKIMINATION DUE TO UnFAVOEABLE LOCATION NOT Unlawful. Complainants situated in the eastern portion of Washington County, Maine, alleged that by reason of their location they could not take advantage of the milling-in-transit privilege on corn, although their competitors at Bangor and Lewiston, Me., could do so, and that therefore allowance of the transit privi- lege at Bangor and Lewiston constituted undue discrimination against complainants; Held, That the disadvantage under which the complainants labored was primarily due to their un- favorable location, and that it was not the province of the Commission to overcome disadvantages of this nature by ad- justment of the transportation eharges.^°° 11 D. Caeeiees mat not Fostee Industeies on theie Own Lines to Peejudice op Othees. It is the duty of a common carrier to receive and carry, upon reasonable terms, all goods tendered in suitable condition, and it cannot lawfully discriminate in favor of any person, prod- uct, or locality. A common carrier, in order to build up and foster indus- tries on its own lines, cannot lawfully refuse to carry the prod- ucts of like industries located on connecting lines.^"'' ][ E. Caeeiees mat not Ceeate Aetificial Market Conditions. A carrier cannot lawfully establish and maintain an adjust- ment of rates which in practice prevents shippers on its line from availing themselves of a principal market, which they 105 Chamber of Commerce of Minneapolis v. Gr. Nor. Ry. Co. (1892), 4 I. C. R. 230; Valley Flour Mills v. A. T. & S. F. Ry. Co. et al. (1909), 16 I. C. C. R. 73. 106 Quimby et al. v. Me. Cent. Rd. Co. et al. (1908), 13 I. C. C. R. 246. 107 Standard Lime & Stone Co. et al. v. Cumberland Valley Rd. Co. et al. (1909), 15 I. C. C. R. 620; decision in 12 I. C. C. R. 183 and 13 I. C. C. R. 460 adhered to. 565 DISCRIMINATION'S AND PEEFEEENCBS. [§ 378 have long been using, and confers a substantial monopoly upon a new market in which, for reasons of its own, it has greater interest. When a carrier makes rates to two competing markets which give the one a practical monopoly over the other because it can secure reshipments from the favored locality and none from the other, it goes beyond serving its fair interest, and disregards the statutory requirement of relative equality as between persons, localities and particular descriptions of traffic.i"^ A carrier has no right to insist that a shipment go to the end of its rails if the shipper desires it to be diverted at an intermediate point to another market off its rails. Nor may a carrier accomplish these results indirectly by any unreasonable adjustment of its rate schedules with that end in view. It can- not lawfully compel the shipping public to contribute to its revenues on any such grounds.^"^ The opportunity to buy in a widely extended market is a, valuable one to merchants, in that it presents a larger field for competition and ordinarily offers the best quality at the lowest price, and a carrier has no right, by refusing through routes and joint rates, to restrict or circumscribe this opportunity. It is the duty of common carriers to haul the trafQc that is offered and to make necessary arrangements and furnish facili- ties and establish rates therefor ; and a carrier is not justified in refusing traffic from points on other lines on the ground that such traffic would displace in the markets traffic from points on its own lines and thus adversely affect its revenue.'^^" It is neither sound in principle nor equitable in practice for railway lines to create artificial differences in market condi- tions by an arbitrary differential in rates whereby the product 108 Savannah Bureau of Freight and Transportation at al. v. L. & N. Rd. Co. et al., 8 I. C. C. R. 377; order of Commission enforced, I. C. C. V. L. & N. Rd. Co. et al., 118 Fed. Rep. 613. 109 Chamber of Commerce of Milwaukee v. C. R. I. & P. Ry. Co. et al., 15 I. C. C. R. 460. 110 Star Grain & Lumber Co. et al. v. A. T. & S. F. Ry. Co. et al.. 14 I. C. C. R. 364. § 378] INTERSTATE TRANSPORTATION. 566 of one section of the country is assigned to one market and the product of another section of the country to another market/'^^ H F. Carriers may not Favor a Large Town against a Smaller one. The mere fact that a given town has been recognized as a "trade center" and is enabled by its more favorable rate ad- justment to distribute in a certain territory, cannot justify the continuance of relative rates which result in undue pref- erence.^^^ The law contemplates relatively fair rates as be- tween different places, and the dealer located in a small town is entitled to a reasonable adjustment which will enable him to compete on an equitable basis with dealers at trade centers enjoying the benefit of competitive rates.^^' 1[ G. Discrimination between Group Points. A carrier cannot lawfully so group its mines with respect of rates as to unduly discriminate against any locality. The duty imposed by law is to give equal treatment to all shippers who are in position to demand it, and this includes the right to reach competitive markets on relatively equal terms. Carriers are not required by law, and could not in justice be required, to equalize natural disadvantages, such as loca- tion, cost of production, and the like. Where, however, the same carrier serves two districts which, by their location, the character of their output, and distance from markets where their product must be disposed of are in substantially similar circumstances and conditions, the serving carrier cannot law- fully prefer one to the other in any manner whatsoever.^^* ^ H. Long-and-Short-Haul Clause and Belief from Opera- tion THEREOF. See Chapter 8, ante, for full consideration. 111 Re Export Rates, etc., 8 I. C. C. R. 185. 112 See note 101, supra. lis See note 101, supra. 114 Black Mountain Coal & Land Co. et al. v. Southern Ry. Co. et al., 15 I. C. C. R. 286 (1909). s67 discriminations and peefeeences. [§ 378 11 1. Competition not Necessaeilx a Justification of the Establishment of Preferential Eate. Railway companies are not prohibited by Section 3 of the Act from preferring one locality over another unless the pref- erence is undue and unreasonable, but a preference which is without legitimate excuse is, in and of itself, undue and un- reasonable. Under decisions of the United States Supreme Court, Import Rate Case,^^^ and the Troy Casep-'^" railway competition may, but it does not necessarily, justify a preference to a par- ticular locality or common duty; and therefore, granting that discrimination against a locality which is based on such com- petition is excusable in theory, the question still remains whether under the third section of the Act it is undue or un- reasonable ; and the question is one of fact in each case.^"^^ IJ J. Discrimination between Localities in the Assessment OF Terminal Charges. Railroad companies entering Chicago imposed a terminal charge for delivery of live stock at the Union Stock Yards, Similar charges were not imposed for delivery of live stock at other markets such as Kansas City, Sioux City and Omaha. Held, That the imposition of the terminal charge at Chicago, while similar charges were not made at the other markets, was not unlawful under Section 2 of the Act, since the serv- ices were not rendered over the same line and were therefore not "like" within the meaning of that section."* 1[ K. Maintenance ■ of Free "Pickup" and Delivery Ex- press Service at One Point and not at Another. The right of an express company to maintain a free package 115 Import Rate Case, T. & P. Ry. Co. v. I. C. C, 162 U. S. 197; 40 L. ed. 940, 16 Sup. Ct. 666; 5 I. C. R. 405. 116 Troy case, I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144; 40 L. ed. 414, 18 Sup. Ct. 45. 117. New York Produce Exchange v. B. & O. Rd. Co., 7 I. C. C. R. 612; Phillips, Bailey & Co. v. L. & N. Rd. Co. et al., 8 I. C. C. R. 93. lis See note 18, supra. §§ 379-381] INTERSTATE TEANSPOETATION. 568 pickup and delivery service at one point, while not maintain- ing such a service at another point, must necessarily be con- trolled by the conditions existing at each place. An express service at a large commercial and manufacturing town like Pall River, Mass., that does not include a free pickup and de- livery would not meet the " present-day requirements, and would be wholly unsatisfactory. But because such service is maintained at Fall River, where the volume of the traffic is large, and a wagon service can be conducted economically, it by no means follows that a like service must be maintained at Bristol Ferry, R. I., where the traffic is small and the cost of keeping up a wagon service might more than absorb all the revenue.^^' §379. Discrimination between Connecting Carriers in Fur- nishing- Facilities for Interchange of Traffic. See Section 610, post. §380. Befnsal of Express Company to Extend "C. 0. D." Service to Shipments of Liquor. Under date of June 15, 1907, defendants established a rule which provides that they will not undertake to collect for shippers the purchase price of intoxicating liquors — ^that is to say, they will not perform for that traffic what is known as "C. 0. D." service. Held, That, in view of the practical diffi- culties attending the "C. 0. D." carriage of intoxicating liquors, the discrimination against that traffic resulting from the rule in question is not undue, and therefore not in viola- tion of the statute.^^" § 381. Preference in Expedition of Military Traffic in time of War. The statute provides that in time of war or threatened war preference and precedence shall, upon the demand of the President of the United States, be given, over all other traffic, 119 Phillips V. N. Y. & Boston Despatch Express Co., 15 I. C. C. R. 631. 120 Royal Brg. Co. v. Adams Express Co. et al., 15 I. C. C. R. 255. 569 DISCRIMINATIONS AND PKEFBRENCES. [§ 382 to the transportation of troops and material of war, and that carriers shall adopt every means within their control to facili- tate and expedite the military traffic.^^^ §382. Discrimination in Fares for Transportation of Passengers. TJA. Position op Passenger not Good Grounds of Discrimination. The means, occupation or purpose of parties are not proper considerations upon which to found discriminations among them in the sale of passenger tickets.^^^ 11 B. Exaction op Additional Sum por Failure op Passenger TO Produce Ticket. It was a regulation of the respondent company published on its tariff schedules filed and posted as required by the Act to Regulare Commerce, that the conductor should collect fare on trains from passengers without tickets adding 25 cents to single-trip fares. Held, That it was not unjust discrimination against the complainant to exact this addition from him.^^^ \ C. Round-Trip Fare not Unjustly Discriminatory against Higher One-Way Fare. While it would be unjust to charge A a greater sum than B for a single trip from Washington to Pittsburg, if A agrees not only to go but to return by the same route, it is no in- justice to B to permit him to do so for a reduced fare, since the services are not alike nor the circumstances and conditions substantially similar, as required by Section 2 of the Act to make an unjust discrimination.^^* It is not unjust discrimination under the statute for a car- rier to make reasonable concessions in the way of reduced pas- 121 Act to Regulate Commerce. Section 6. 122 Smith V. Nor. Pac. R. R. Co. (1887), 1 I. C. R. 611; 1 I. C. C. R. 208. 123 Sidman v. R. & D. R. Co. (1890), 3 I. C. R. 512; 2 I. C. R. 766. 124 See note 26, supra. § 383] IN-TEBSTATE TEANSPOETATION. 570 senger fares in consideration of longer service and more fre- quent trips.^^^ The Interstate Commerce Act was not designed to prevent competition between different roads, nor to interfere with the customary arrangement made by railway companies for re- duced fares in consideration of increased mileage, where such reduction does not operate as an unjust discrimination against other persons traveling over the road.^^* 11 D. Special Bates on iMMiGEATioisr Traffic. There is nothing illegal or wrongful in a railroad company in making a rate for immigrants as a class and declining to give the same rate to others for whom different accommoda- tions are furnished. ^^^ T[ B. Discrimination between Ministers oe Different De- nominations IN Granting Eeduced Fares. Although the statute gives carriers the privilege of issuing free or reduced-rate transportation to ministers of religion, yet the action of a railroad company in charging ministers of one denomination full fare and those of another half fare, has been held to amount to an unjust discrimination.^^* H P. Party-Rate Tickets not Unjustly Discriminatory AGAINST Single Passenger Pares. See Section 564, post. U Gr. Discrimination between Party Classes in Granting Party Eates Illegal under Similar Circumstances • AND Conditions. The carriage on a party-rate ticket of ten persons belonging to a theatrical company, and the carriage on individual tick- ets of ten other persons of different vocations traveling as a 125 See note 23, supra. 128 See note 26, supra. 127 Savery & Co. v. N. Y. C. & H. Rd. Co. et al. (1888), 2 I. C. C. R. 338, 2 I. C. R. 210. 128 See note 25, supra. 571 DISCRIMINATIONS AND PREFERENCES. [§ 383 party, Held, To be "a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions," since the words "cir- cumstances and conditions" refer to the carriage itself, and not to extraneous facts, such as the vocation of the passen- gers; that if party-rate tickets were issued by a carrier to theatrical companies, it could not lawfully refuse to issue such tickets to the general public.^^' T[ H. Where Difference in Charge to Party Classes was Justified. A railroad company published in its schedule a provision that one-way, ten-party-rate tickets would be sold at reduced rate to "theatrical, operatic, or concert companies, hunting and fishing parties, glee clubs, brass or string bands, boat, baseball, polo, golf or tennis clubs, football teams, and other parties of like character." The United States Government claimed the benefit of the ten-party rate for transportation of its soldiers. The sale of party-rate tickets to the classes enumerated was for cash, while that to the Government was on credit. The giving of exhibitions and entertainments by the classes provided for induced the general public to travel, thereby increasing the business of the company. The trans- portation of soldiers did not increase such business. Held, That the Government was not entitled to the benefit of the ten-party rate; that the service rendered in transporting sol- diers was not like, nor performed under circumstances and conditions substantially similar to that rendered in transport- ing the classes enumerated; that the discrimination was not therefore unjust within the meaning of Section 2 nor the prejudice undue or unreasonable within the meaning of Sec- tion 3 of the Act to Regulate Commerce.^^" Railway companies are only bound under the Interstate Commerce Act to give the same terms to all persons alike under the same conditions and circumstances, and any fact 129 Re Party-Rate Tickets, 12 I. C. C. R. 95 (1907). 130 See note 25, supra. § 382] INTERSTATE TEANSPOKTATION. SI'S which produces an inequality of conditions and a change of circumstances justifies an inequality of charge.^^^ HI. Legality op Mileage, Excuesion and Commutation Tickets. See Section 56S, post. 1IJ. Issuance op Excursion Tickets on One Occasion and Eepusal to Issue on Similar Occasion. The exceptive phrase in Section 22 of the Act, "that nothing in this Act shall prevent * * * the issuance of mileage, excursion or commutation passenger tickets," does not pro- vide against discrimination by the issuance of excursion tick- ets for one occasion or refusal to issue them on account of a similar event.^'^ The provisions of Section 22 of the Act do not entirely ex- empt the issuance of excursion tickets from the operation of the undue discrimination provision of the Act, but the statute itself authorizes discrimination permitting the issuance of ex- cursion tickets, and it is only in cases where this privilege has been plainly abused that the Commission would be justified in interfering.^'^ 1[ K. Excursion or Commutation Tickets v. Mileage Tickets. The fact that excursion or commutation tickets are put on sale at a given rate, does not entitle the purchaser of a mile- age ticket (each class of ticket being issued for a distinct pur- pose and the form of contract in each case being different) to complain of unjust discrimination if charged a higher rate.^*** 131 See note 26, supra. 132 Gator V. Southern Pacific Co. et al. (1893), 6 I. C. C. R. 113, 4 I. C. R. 397. 133 Weber Club & Intermountain Fair Ass'n. v. Oregon Short Line Rd. Co. et al. (1909), 17 I. C. C. R. 212. 134 Associated Wholesale Grocers of St. Louis v. Mo. Pac. R. Co., 1 I. C. R. 393 (1887). 573 DISCKIMINATIONS AND PEEPERENCES. [§ 383 § 383. Ticket Brokerage as a means of Unjust Discrimination and Undue Preference. 1[A. Sale of Cut-Eate Passenger Tickets Eesults in a Violation of the Act to Regulate Commerce. . When the restrictions embodied in the Act concerning equality of rates and the prohibitions against preferences are borne in mind the conclusion cannot be escaped that the right to issue tickets of the class referred to carried with it the duty of the carrier of exercising due diligence to prevent the use of such tickets by other than the original purchasers, and therefore caused the nontransferable clause to be operative and effective against anyone who wrongfully might attempt to use such tickets. Any other view would cause the Act to destroy itself, since it would necessarily imply the right to disregard the prohibition against preferences, which it was one of the great purposes of the Act to render efficacious. This must follow, since, if the return portion of the round- trip ticket be used by one not entitled to the ticket, and who otherwise would have had to pay the full one-way fare, the person so successfully traveling on the ticket would not only defraud the carrier but effectually enjoy a preference over similar one-way travelers who had paid their full fare and who were unwilling to be participants in a fraud upon the railroad company.^^' 1[ B. Actionable Wrong Committed by Person Carrying on Business of Ticket Brokerage. An actionable wrong is committed by one who maliciously interferes in a contract between two parties and induces one of them to break that contract to the injury of the other,^'" and this principle applies to carrying on the business of pur- chasing and selling nontransferable reduced-rate railroad tickets for profit to the injury of the railroad company issu- 1S5 Bitterman v. L. & N. Rd. Co. (1907), 207 U. S. 205; 52 L. ed. 171, 28 Sup. Ct. 91, affirming 144 Fed. Rep. 34, 75 C. C. A. 192.' For comments of the Commission on ticket brokerage see its Annual Re- ports to Congress for 1890 and 1895. 136 Angle V. C. & St. P. Ry. Co., 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. 240. § 384] INTERSTATE TKANSPOKTATION. 574 ing them, and this even though the ingredient of actual malice in the sense of personal ill will, does not exist.^^'' When the dealings of a class of speculators in iiontransfer- able tickets have assumed great magnitude, involving large cost and risk to the railroad company in preventing the wrong- ful use of such tickets, and the parties dealing in them hav.e expressly declared their intention of continuing so to do, a Court of equity has power to grant relief by injunction.^^' ^ C. Power of Federal Court to Issue Injunction Ee- STRAiNiNG Ticket Scalpers from Dealing in the Future in Cut-Eate Tickets. Every injunction contemplates the enforcement as to the party enjoined, of a rule of conduct for the future as to the wrongs to which the injunction relates, and a Court of equity may extend an injunction so as to restrain the defendants from dealing, not only in nontransferable tickets already issued by the complainant railroad, but also in all tickets of a similar nature which shall be issued in the future; and the issuing of such an injunction does not amount to an exercise of legis- lative, as distinct from judicial, power, and a denial of due process of law/^' § 384. Discrimination between White and Colored Passengers. "Jim Crow" Cars. A case involving alleged undue discrimination against col- ored persons was decided by the Commission on June 24, 1907."° The complainant in this case, Georgia Edwards, was a negro woman residing at Chattanooga, Tenn., and the de- fendant was the Nashville, Chattanooga & St. Louis Ry. Co., operating the Western & Atlantic Eailroad. On August 31, 1906, the complainant purchased a ticket entitling her to a first-class passage from Chattanooga, Tenn., to Dalton, Ga., 137 See note 135, supra. 138 Ibid. 139 Ibid. 140 Edwards v. N. C. & St. L. Ry. Co., 12 I. C. C. R. 247 (1907), cited in Cozart v. Southern Ry. Co. (1909), 16 I. C. C. R. 226. 575 DISCKIMINATIONS AND PREFERENCES. [§ 384 over defendant's said line of railway. She entered and occu- pied a seat in a car assigned to passengers other than negroes, whereupon she was informed by the carrier's flagman that she was in the wrong car and was requested to go to that portion of another car set apart for the use of people of her race. This she refused to do, whereupon the flagman notified the carrier's assistant station agent of the circumstances and the latter removed the complainant to the ear last referred to, using only such force as was necessary for that purpose. Com- plainant claimed that the car into which she was removed was not as clean as the car first occupied by her, but this claim was not supported by the record. These two cars were of the same quality, having seats of the same size, upholstered in a like manner, and with exactly the same quality of goods. One of them was used by white passengers, and was provided with towels and wash bowl, while the other was without such conveniences. The latter was con- structed as follows : A partition placed in the middle of the ear divided it into two compartments and entrance from one to the other was through a swinging door which, after being opened, closed automatically. Negro passengers were required to occupy one of these compartments, while the other was oc- cupied by other passengers who wished to smoke. In one end of the other passenger coach there was a compart- ment for smokers accommodating seven persons, but defendant did not provide any separate smoking compartment for ne- groes, while only one toilet was provided in the negro compart- ment, the car which was entirely used by other passengers had two, marked in such a way as to indicate that one was to be used by men and other by women; but such restriction was only partially enforced. The principal reason for provid- ing two toilets in one case and only one in the other was that the number of passengers carried in the negro compartment was very much less than the number contemporaneously trans- ported in the other car. The carrier assigned to the use of negro passengers about one-sixth of the space in its passenger train, while the number of negroes transported by the defend- ant was only about one-fifteenth of the total. § 384] INTEESTATB TEANSPOKTATION. 576 When there were no women in the colored apartment, smok- ing there was allowed, but not otherwise. It sometimes hap- pened that a car provided by defendant for the use of white passengers had no wash basin and only one toilet and no smok- ing compartment, and smoking was allowed in such cars if there were no women present. The broad question of the right, under the thirteenth and fourteenth amendments to the Constitution to segregate white and colored passengers has been upheld by the Supreme Court of the United States."^ In the case of Gouncill v. Western & Atlantic B. B. Co.,^*^ Mr. Commissioner Morrison, speaking for the unanimous Com- mission, therein said: "Public sentiment, wherever the col- ored population is large, sanctions and requires this separation of races, and this was recognized by counsel representing both complainant and defendant at the hearing. We cannot, there- fore, say, that there is any undue prejudice or unjust prefer- ence in recognizing and acting upon this general sentiment provided it is done on fair and equal terms. This separation may be carried out on railroad trains without disadvantage to either race and with increased comfort to both." And again in case of Heard v. Georgia Bailroad Co.,^*^ Mr. Commissioner Schoonmaker held for the Commission that the separation of white and colored passengers paying the same fare is not unlawful if cars and accommodations, equal in all respects, are furnished to both and the same care and protec- tion of passengers is observed. While, therefore, the reasonableness of such regulations as to interstate passenger traffic is established, it by no means follows that carriers may discriminate between white and col- ored passengers in the accommodation which they furnish to 141 Hall V. De Culr, 95 U. S. 485, 24 L. ed. 547; L. N. O. & T. Ry. v. Mississippi, 131 U. S. 587, 33 L. ed. 284, 2 I. C. R. 801, 10 Sup. Ct. Rep. 348; Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; C. & O. Ry. v. Kentucky, 179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct. Rep. 101. "2 Councill V. Western & Atlantic R. R. Co., 1 I. C. C. R. 638. 143 Heard v. Georgia Rd. Co., 1 I. C. C. R. 428; 1 I. C. R. 719. 577 DISCRIMINATIONS AND PEEEERENOES. [§ 385 each. If a railroad provides certain facilities and accommo- dations for first-class passengers of the white race, it is com- manded by the law that like accommodations shall be provided for colored passengers of the same class. . The principle that must govern is that carriers must serve equally well all pas- sengers, whether white or colored, paying the same fare. Fail- ure to do this is discrimination and subjects the passenger to undue and unreasonable prejudice and disadvantage. In this case it was manifest that defendant unduly and un- justly discriminated in some particulars against colored pas- sengers; and the Commission ordered therefore, that where the defendant carrier provides a wash bowl and towels in coaches devoted to the use of white passengers and a separate smoking compartment for such passengers also similar accom- modations shall be provided for colored passengers paying the same fare. § 385. Through Passenger Arrangement which Affects Rights of Passenger beyond Terminus of Line. Where a railroad company, stage line and hotel association entered into an arrangement for a through route and joint rates from eastern cities to the Yellowstone National Park and for providing stage transportation through such park to pas- ■ sengers and accommodations thereat, the Commission in hold- ing such an arrangement unlawful, stated that it is the duty of the railway company to so conduct and control its opera- tions relating to the transportation of passengers to the Yel- lowstone Park as to afford such passengers full and equal op- portunity at the terminus of its line at Gardiner, Mont., and elsewhere to select the stage line or other agency they may desire to use for touring the Park, and the places and manner of entertainment therein. Held, That such an arrangement affected an undue and unreasonable preference and advantage to the stage line and hotel association, and subjected the tourists and other passengers traveling to and from such reservation to undue and unreasonable prejudice and disadvantage.^** i44Wylie v. Northern Pac. Ry. Co. et al. (1905), 11 I. C. C. R. 145. Eegulation — 37. §§ 386, 387] INTERSTATE TRANSPORTATION. 578 §386. Right of Passenger to Ride on Freight Trains if Extended must be Offered Impartially. Upon inquiry made by a carrier, the Commission held, that it may not confine -the right to travel on freight trains to a particular class, such as drummers and commercial agents, but if the privilege is permitted to one class of travelers it must be open to all others on equal terms and conditions.^*" §387. Jurisdiction of Interstate Commerce Conuuission over Unjust Discriminations and Undue Preferences. TIA. Provisions of the Statute. In enacting the Interstate Commerce Acts, Congress con- ferred upon the Commission the power of determining whether, in given eases, the services rendered were alike and contempo- raneous, whether the respective traffic was of a like kind, and whether the transportation was under substantially similar cir- cumstances and conditions.^*" Section 15 of the Act as amended June 29, 1906, states in specific terms, that the Commission is authorized and empow- ered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in Section 13 of the Act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, . charged, or collected by any common carrier or carriers, sub- ject to the provisions of the Act, for the transportation of persons or property as defined in the first section of the Act, or that any regulations or practices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of the Act, to determine and prescribe what will be the just and reason- able rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged ; and what regula- tion or practice in respect to such transportation is just, fair, and reasonable to be thereafter followed; and to make an 145 Rule 45, Con. Rul. Bui. No. 4 (March 3, 1908). 146 See note 33, supra. 579 DISCRIMINATIONS AND PKBPEKENOES. [§§388,389 order that the carrier shall cease and desist from such viola- tion, to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maxi- mum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed. IJB. JUEISDIOTION OVER TJnJUST DISCRIMINATION IN DISTRI- BUTION OP Cars. While the Act to Regulate Commerce contains no provision which expressly or by proper implication gives the Commission jurkdiction in cases merely showing delay or negligence in the receipt, forwarding or delivery of property offered for transportation, including the furnishing of cars, the regulating statute does prohibit unjust discrimination or wrongful prej- udice in the provision of cars or other transportation facilities, as well as in the fixing and application of transportation charges.^*^ The Commission has jurisdiction to forbid such discrimination and to award reparation for the detriment di- rectly and proximately resulting from it.^** Clearly the Com- mission has no jurisdiction to establish or fix in the first in- stance rules governing the conduct of the carrier's business or regulating its distribution of cars, but, as held in many de- cisions of the Commission, it has undoubted power and juris- diction to deal with complaints that the practices of carriers work unjust discrimination against shippers or localities."' § 388. Beparation for Damages account of Unjust Discrimination. See Section ^28, post. § 389. Granting of Rebate or Concession as an Unjust Discrimination. See "Bebates or Concessions," Chapter 27, post. 14T See note 82, supra. 148 See note 87, supra. "9 R. R. Com. of Ohio et al. v. H. V. Ry. Co. (1907), 12 I. C. C. R. 398: Red Rock Fuel Co. v. B. & O. Rd. Co. (1905), 11 I. C. C. R. 438. §§ 390, 391] INTERSTATE TEANSPOETATION. 580 § 390. Penalty of Carrier for Unjust Discrimination and Undue or Unreasonable Preference or Advantage. See Section 759,, post. §391. Penalty of Party receiving Favors from Carriers. See Section 759, post. OHAPTEE XXVn. REBATES OR CONCESSIONS. Section 392. Unlawful to Offer, Grant, Give, Solicit, Accept or Receive any Rebate from Published Rate or other Concession or Discrimina- tion. 393. Meaning of the term "Rate" as used in the Statute against Rebat- ing. 394. Method of Rebating Immaterial. 395. Departure from Published Rate is the Essence of the Offense. 396. Declaring a False Valuation, False Billing and False Classifica- tion Violation of the Statute. 397. Allovjrances to Terminal Railroads as a Medium of Rebating. 398. Allowances to "Tap Lines." 399. Allowances to Shippers for Services Rendered or Instrumentalities Furnished must not exceed the Actual Cost. 400. Allowance for Use of Private Track of Shipper as a Medium of Rebating. 401. Cancellation of Storage Charges as a Medium of Rebating. 402. Giving of Commissions as a Medium for Rebating. 403. Repayment by Carrier on Account of Switch Track. 404. Joint Rebate not Essential to the Commission of the Offense. 405. Relief of Agent does not Relieve Carrier. 406. Refund on Account of Full-Fare Transportation used by a Boy under 12 years of age not Permissible. 407. Penalty for Offering, Granting, Giving, Soliciting, Accepting or Receiving any Rebate from Published Rates or other Concessions. § 392. Unlawful to Offer, Grant, Give, Solicit, Accept or Re- ceive any Rebate from Published Rate or other Concession or Discrimination. The Elkins Act declared that it shall be unlawful for any person, persons, or corporation to offer, grant, or give or to solicit, accept or receive any rebate, concession, or discrimin- ation in respect to the transportation of any property in in- terstate or foreign commerce by any common carrier subject to the Act to Eegulate Commerce and Acts amendatory there- 581 § 393] INTEESTATE TEANSPOETATION. 583 of whereby any such property shall by any device whatever be transported at a less rate than that named on the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and Acts amendatory thereof, or whereby any other advantage is given or discrimination is practiced.^ Section 6 of the Act to Regulate Commerce as changed by the amendment of June 29, 1906, provides that no carrier sub- ject to its provision shall charge or demand or collect or re- ceive a greater or less or different compensation for transpor- tation of passengers or property, or for any service in connec- tion therewith between the points named in the tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time-, and prohibits any carrier from re- funding or remitting in any manner or by any device any por- tion of the rates, fares, and charges so specified, and from ex- tending to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. Section 2 of the Act to Regulate Commerce reads now just the same as when originally enacted and provides : That if any common carrier subject to the provisions of this Act, shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered in the transportation of passengers or property, subject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. §393. Meaning of the Term "Rate" as used in the Statute against Rebating. The word "rate," as used in the statute, means the net cost to the shipper of the transportation of his property; that is, the net amount the carrier receives from the shipper and re- tains. In determining such amount in a given case, all money 1 Elklns Act, Section 1. 583 REBATES OR CONCESSION'S. [§ 394 transactions having a bearing on, or relation to, that particu- lar instance of transportation, whereby the cost to the shipper is directly or indirectly enhanced or reduced, must be taken into consideration.^ For example : A private stable-car com- pany owned cars which were in general use by railway com- panies; and received compensation therefor from the railway companies computed on a mileage basis. The stable-car com- pany, in order to induce shippers to demand of the railway companies that their stock be shipped in the ears of the stable- car company, made payments of money to shippers using its cars. The Court held, that the giving of any such allowance to a shipper whereby he secures the transportation of his property at a less rate than that named in the published tariff of the carrier for transportation of such property in its own cars, although from its own funds and without the connivance or knowledge of the carrier, is a violation of the statutes.^ §394. Method of Rebating Immaterial. The all-embracing prohibition of the statute against either directly or indirectly charging less than the published rates has for its purpose the prohibitions of every method of dealing by a carrier by which the forbidden result can be obtained.* A departure from the published rate by any means whatso- ever, whether direct between the parties or indirect by the employment of a subterfuge, is prohibited and made unlawful by the Act.^ The Elkins Act is not restricted in its provisions to de- partures from an established tariff rate, but is violated if any other advantage is given to a shipper whereby a discrimina- tion is practiced." 2 United States v. Chicago & Alton Ry. Co. (1906), 148 Fed. Rep 646, supra; I. C. C. v. Reichmann (1906), 145 Fed. Rep. 235. 3 1. C. C. V. Reichmann (1906), 145 Fed. Rep. 235. 4N. y. N. H. & H. R. Rd. Co. v. I. C. C. (1906), 200 U. S. 361; 26 Sup. Ct. Rep. 272; 50 L. ed. 515, affirming I. C. C. v. C. & 0. Ry. Co., 128 Fed. Rep. 59. 5 United States v. Standard Oil Co. (1907), 148 Fed. Rep. 719; Armour Packing Co. v. U. S. (1907), 153 Fed. Rep. 1; 82 C. C. A. 135. e United States v. Vacuum Oil Co. (1907), 153 Fed. Rep. 598; 82 C. C. A. 586. §§ 395, 396] INTERSTATE TRANSPORTATION. 584 In contemplation of the Act any method however skillfully- devised by which an unlawful result is effected becomes de- vices for the end obtained. In such cases the law deals with the result produced and it is immaterial what means may be employed, for the purpose. If the result is unlawful the means employed comes within the condemnation of the statute.' §395. Departure from Published Rate is the Essence of the Offense. Where a tariff has been established on a commodity for a through interstate shipment, as provided by the Interstate Commerce Law, there can be no departure therefrom unless made according to law.^ The giving or receiving of a rebate or concession, whereby property in interstate or foreign commerce is transported at less than the established rate, is the essence of the offense denounced by the Elkins Act." The test to be applied in determining whether the law has been violated, is whether the carrier has transported property at a less rate than that named in the tariff.^" The payment of a rebate to some person other than the shipper constitutes the offense. ^^ §396. Declaring a False Valuation, False Billing and False Classification, Violation of the Statute. Upon an inquiry from a banking house whether it may law- fully declare a value of $5,000 upon a package of negotiable bonds of the market value of $10,000 and pay the express eharge on the basis of the declared value, upon the under- standing that in case of the loss of the bonds the express company will be responsible only for the amount so declared, ^ Shamberg v. D. L. & W. Rd. Co. et al. (1891), 4 I. C. C. R. 630; 3 I. C. R. 502; Re Division of Joint Rates and other allowances to Term- inal Railroad (1904), 10 I. C. C. R. 385. 8 United States v. Pennsylvania Rd. Co. (1907), 153 Fed. Rep. 625. 9 Armour Packing Co. v. United States (1907), 153 Fed. Rep. 1; 82 C. C. A. 135. 10 United States v. D. L. & W. R. Co. (1907), 152 Fed. Rep. 269. 11 Ibid. 585 REBATES OR CONCESSIONS. [§ 397 it was held that a shipper falsely declaring the value of a package delivered to an express company for transportation violates the Act.^^ The permission by a common carrier of the practice of underbilling the weight of freight or giving it a false classi- fication, whereby less compensation is paid by one person than by another for "a like and contemporaneous service," is within the inhibition of the Act to Regulate Commerce. The methods of inspection adopted by certain railroad com- panies, to detect and prevent underbilling and false classifica- tion, are approved by the Commission, but cannot be accepted as a substitute for the requirement that every carrier should itself be held, and in turn should itself hold every station agent, responsible for the correctness of the weight and classi- fication of freight received, so far as the same can be practic- ally ascertained.^^ To avoid the payment of the published through rate on ' ' switching coal ' ' the complainant falsely billed a carload ship- ment as "bituminous soft-coal slack" and thus sought to se- cure the benefit of a lower combination of local rates on soft coal based on an out-of-line point; and in this plan the de- fendant's agents at point of origin joined. The Commission held. That as neither party comes before it with clean hands no relief order will be entered.^* § 397. Allowances to Terminal Railroads as a Medium of Rebating. The St. Louis, S. & P. Co., operated an extensive plant at G-ranite City, Ills. Within its private grounds were several thousand feet of railway which was connected by short tracks with the lines of interstate carriers. Their railway and con- necting tracks were maintained and operated by the Granite City A. & E. Rd. On freight received from this company an allowance was made to it by the carrier of from 1/2 cent to 12 Rule 58, Con. Rul. Bui. No. 4 (April 7, 1908). 13 Re Underbilling (1888), 1 I. C. C. R. 633; 1 I. C. R. 813. "Sligo Iron & Stone Co. v. A. T. & S. F. Ry. Co. (1909), 17 I. C. C. R. 139. § 397] INTERSTATE TRANSPORTATION'. 586 3 cents per hundred pounds. Held, That assuming the two companies mentioned were identical in ownership, the pay- ments to the railroad company were not only in violation of the Elkins Amendment of February 19, 1903, but were rebates under the law as it existed before that amendment.^^ The Hutchinson & A. R. Railroad owned from four thousand to five thousand feet of railway siding which connected the mill of the H. K. Salt Co., at Hutchinson, Kan., with the lines of interstate carriers. The railroad company owned no equip- ment and was not engaged as a common carrier. It was con- trolled by officers of the salt company and its earnings were also subject to that control. The carriers established joint rate with the railroad company on salt shipped from the mill of the salt company to Missouri River points, the railroad company being granted a division of 25 percent. The rates so established were the same as the local rates from Hutchin- son to Missouri River. Other producers of salt at Hutchinson were charged the regular local rate. Held, That the arrange- ment with the railroad company was purely a scheme for the purpose of granting a concession in the rate ; that the divisions allowed were unlawful.'^' The International Harvester Company owned the capital stock of the Illinois Northern R. Co. and a controlling interest in the Chicago West Pullman & Southern R. Co. operating as terminal connecting roads in and about the City of Chicago between the plant of the Harvester Co. and various other in- dustries and connecting roads leading to the Missouri River and other sections of the country. The service performed by these terminal roads was essentially a switching service. It had been performed for years by these railroads upon that basis. But at the time of the hearing both roads were receiv- ing in many instances, not a switching charge, but a division of the through rate. The average allowance being twenty percent of the rate, amounting in some cases to $12 per car as 16 Re Division of Joint Rates and other allowances to Terminal Railroads (1905), 10 I. C. C. R. 661. 16 Re Transportation of Salt from Hutchinson, Kas. (1904), 10 I. C. C. R. 1. 587 REBATES OR CONCESSIONS. [§ 397 against a former maximum switching charge of $3.50 per car. The Commission lield, That $3.50 per car was a reasonable charge for the performance of these switching services, and that anything above that was unreasonable, and that the divi- sions were not regarded by the carriers which granted them as a legitimate charge for the performance of the service, and that they did, in fact, in so far as they exceed a reasonable compensation for the performance of the service, amount to a direct preference in favor of the International Harvester Company.^'' The Chicago, Lake Shore & Eastern R. Co., owned by the United States Steel Corporation, was a terminal road operated between the Illinois Steel Company's works, near Chicago, and connecting with roads leading east, west, and south. It re- ceived a division of 10 percent of the rate to the seaboard; 15 percent to Buffalo and Pittsburg, and 20 percent to the Missouri River and beyond, and in some cases obtained special divisions. These divisions were found to be grossly excessive for the service rendered and to afford unlawful preference to the United States Steel corporation which owns and controls the Illinois Steel Co.^'' A cardinal purpose of the Act to Regulate Commerce is to prohibit all preferences between shippers, and the framers of that Act and its amendments have evidently attempted to make the language sufficiently comprehensive to render every sort of preference, by whatever means attempted, unlawful. The second section of the original Act provides that no greater compensation shall be collected of one shipper than of another "by any special rate, rebate, drawback, or other device." The third section provides that it shall be unlawful for a com- mon carrier subject to the Act to grant any undue preference to any individual or any species of traffic "in any respect whatsoever." The amendment of the Act, approved February 19, 1903, commonly known as the Elkins Bill, requires carriers in all cases to publish their tariffs, and prohibits, under severe penalty, any practice upon the part of the carrier "whereby IT Re Division of Joint Rates and other allowances to Terminal Railroads (1904), 10 I. C. C. R. 385. § 398] INTERSTATE TRANSPORTATION. 588 any such property shall, by any device whatever, be trans- ported at a less rate than that named in the tariff, * * * or whereby any other advantage is given or discrimination is practiced." The manifest intention of the Act to Regulate Commerce, especially as expressed in the Elkins Amendment, is to strike through all pretense, all ingenious device, to the substance of the transaction itself; and where excessive divisions of rates are granted by a carrier to another carrier owned and eon- trolled by a shipper, for the purpose of obtaining the trafftc of that shipper, they benefit the shipper and operate as a rebate or other device to cut the tariff charge in violation of the law. WhUe there may be great objections to allowing shippers to build and operate railroads over which their traffic moves, such action is not prohibited by the Act to Regulate Com- merce, and the mere fact that the property of a common car- rier is owned by the largest individual shipper over it, or that it was originally constructed for the doing of the work of that shipper, furnishes no reason why it cannot make joint rates and agree upon joint divisions with other railroads. The vice in such cases is to be found in the thing done, not in the manner of doing it.^^ §398. Allowances to "Tap lines." In the case of Central Yellow Pine Association v. V., S. & P. Rd. Co.'-^ lumber mill operators owned and controlled short originating roads called "tap lines" which were used in trans- porting the timber and logs from the forests to the lumber mill. The interstate railroads handling the lumber shipments established through rates with these "tap lines" and allowed them divisions of the rates for the services performed by them. It appeared that the payment of these divisions in all cases was made to a so-called railway company which was merely 18 Re Division of Joint Rates &c., to Terminal Railroads, 10 I. C. C. R. 385 (1904). 19 Central Yellow Pine Assn. v. V. S. & P. Rd. Co. et al. (1904), 10 I. C. C. R. 193, cited and applied in Central Yellow Pine Assn. v. I. C. Rd. Co. et al. (1904), 10 I. C. C. R. 505. 589 REBATES OE CONCESSIONS. [§§399,400 a department of the mill company; in other cases it appeared to be a separate firm composed of the same individuals; in still other cases it was a chartered corporation whose stock was owned by the mill company or the proprietors of that company; whatever money was received by it, however, in- ured to the benefit of the mill company finally if not directly. The Commission held that "tap lines" were private prop- erties of the mill owners and that these allowances amounted to rebates and therefore unlawful under the Act. That it was immaterial whether the logs were brought to the mill by steam railroad, horse railroad, wagon, or other means of conveyance. §399. Allowances to Shippers for Services Rendered or In- strumentalities furnished must not exceed the Actual Cost. The Commission has stated, that while it is true that under the terms of the amended Act to Regulate Commerce a shipper may receive in the rate charged, a "just and reasonable" al- lowance from a carrier for any service or instrumentality fur- nished by him in connection with the transportation of his own property, this provision, however, must be read in con- nection with other provisions of the law forbidding and mak- ing unlawful any arrangement or practice that results in an undue preference or an unjust discrimination in favor of one shipper against others, or that results in a rebate or other departure from the lawfully published rates. Therefore if the allowance involves a profit over and above the actual cost of the service rendered it becomes, when made to a shipper, a rebate and an unlawful discrimination to the extent of the profit realized. It is not a rebate when it does not exceed the actual cost. But to avoid that fundamental objection the actual cost of the service rendered must be the limit of the allowance.^" §400. Allowance for Use of Private Track of Shipper as a Medium of Rebating. The Chicago & Alton was an interstate carrier, running east from Kansas City, Mo. The Belt Railway Company operated 20 Federal Sugar Refining Co. of Yonkers v. B. & O. R. R. Co. et al., 17 I. C. C. R. 40. §§ 401, 403] INTERSTATE TKAN-SPOETATION. 590 a belt line from Kansas City, Kans., to Kansas City, Mo., con- necting with the Chicago & Alton and with a private track of the Schwarzsehild & Sulzberger Co., at Kansas City, the latter doing a packing business. The tariff of the Chicago & Alton stated that its rate east included the Belt Company's charge. The Chicago & Alton had collected from Schwarz- sehild & Sulzberger Co. its schedule rate, and prior to 1901, had remitted to the Belt Co. $4 per car. The Belt Company's rate was $3 per car, and that company had thereupon paid the Schwarzsehild & Sulzberger Co. $1 per car. After 1901, at the request of the Schwarzsehild & Sulzberger Co., the Chicago & Alton had paid the Belt Co. $3 per ear, and the Schwarzsehild & Sulzberger Co. $1 per car. The defendants contended that the payment was for the use of the Schwarz- sehild & Sulzberger Company's private track, and that if the law had been violated it was only in requiring the carrier to publish any terminal charge or regulation altering or deter- mining the aggregate rate for transportation. Held, That the facts set out constituted a rebate.^^ §401. Cancellation of Stora.|fe Charges as a Medium of Rebating. After the arrival of the defendant's shipments of petroleum at destination, the carrier held the same in its custody and when a substantial claim for storage accrued it canceled the same. Held, That this amounted to a rebate in violation of the Elkins Law.^^ § 402. Griving of Commissions as a Medium for Rebating. H A. Eeeunds ok Commissions as a Condition of the Sale OE Transportation. The Act prohibits a carrier from demanding, collecting, or receiving a greater or less or different compensation for trans- porting than that named in its tariffs in effect at the time. It prohibits the rebating or refunding to any person in any 21 United States v. Chicago & Alton Ry. Co. et al., 148 Fed. Rep. 646 (1906), affirmed 156 Fed. Rep. 558, 84 C. C. A. 324. 22 United States v. Standard Oil Co. (1907), 148 Fed. Rep. 719. 591 REBATES OE CONCESSIONS. [§§403^404 manner, or by any device whatsoever, any part of the lawful charges so collected. It is, therefore, manifestly unlawful for a carrier to refund to any association, committee, or person any part of the charges collected by the carrier as a condition of the sale of transportation.^^ 11 B. Commissions on Impoet Teapfio. The Commission has held that the granting by carriers of commissions to persons acting as consignees on import traffic is a practice that cannot be sanctioned.^* T[ C. Division of Commission between Caeeier's Agent AND Shipper. The division of a commission between the soliciting agent of a carrier and a shipper operates to give the shipper a lower rate than that stated in the published schedule ; and as the matter is within the control of the agent's employer, the car- rier which permits it is guilty of a violation of the Act.^^ § 403. Repajnnent by Carrier on Account of Switch Track. A shipper in 1895 paid $200 to a carrier as part of the cost of constructing a spur to its warehouse. Upon application of the carrier to the Commission for permission to repay the amount to the shipper. Held, That the repayment would be unlawful unless the shipper had some equity or ownership in the track which he could transfer to the carrier in considera- tion of the payment.^" § 404. Joint Sebate not Essential to the Conuuission of the 0£fense. It is not essential to the commission of the offense of giving a concession from a through rate over connecting lines of railroad under the Elkins Act that the rate be a joint one established by all of the carriers and published and filed with the Interstate Commerce Commission. If an initial carrier accepts traffic for transportation, and issues its bill of lading 23 Rule 221, Con. Rul. Bui. No. 4 (July 8, 1907). 24 Rule 7, Con. Rul. Bui. No. 3 (Nov. 18, 1907). 25 See note 13, supra. 26 Rule 110, Con. Rul. Bui. No. 3 (Nov. 10, 1908). §§ 405-407] INTERSTATE TEANSPOKTATION. 592 over a route made up of connecting roads for which no joint through rate has been published and filed with the Commis- sion, the lawful rate to be charged is the sum of the estab- lished local rates published and filed by the individual roads ; or if there is a local rate over one road and a joint rate over the others for the remainder of the route, all published and filed with the Commission, the lawful through rate to be charged is the sum of the local and joint rates. ^'^ § 405. Relief of Agent does not Believe Carrier. Through error an agent inserted a route in a round-trip ticket over which the published fare was $10 in excess of the amount actually collected from the passenger. Upon request of the carrier for permission to relieve its agent of the uncol- lected undercharge; Held, That the collection of the amount from the agent would not in any way relieve the carrier of its responsibility for failing to collect the full tariff from the passenger.^^ § 406. Refund on Account of Full-Fare Transportation Used by a Boy under 12 years of age not Permissible. A purchaser of two full-fare tickets called upon the initial carrier for a refund, after they had been used, on the ground that he had asked for a ticket and a half, and that he had used one of the full-fare tickets for his son, who was under 12 years of age. The agent of the carrier denied that a half-fare ticket had been requested, and the fact appeared that the father had accepted and paid for two full fares : Held, That the Commis- sion would not authorize a refund.^^ § 407. Penalty for Offering, Granting, Giving, Soliciting, Ac- cepting, or Receiving any Rebate from Published Rates or other Concessions. See Section 759, post. 27 C. B. & Q. Ry. Co. v. United States (1907), 157 Fed. Rep. 830, 85 C. C. A. 194, affirmed 209 U. S. 90; on authority of Armour Packing Co. V. United States (1908), 209 U. S. 56, 52 L. ed. 681, 28 Sup. Ct. 428. 28 Rule 151, Con. Rul. Bui. No. 4 (March 1, 1909). 29 Rule 163, Con. Rul. Bui. No. 4 (April 12, 1909). CSHAPTER XXVIII. DAMAGES AND REPARATION. SECTioisr 408. Jurisdiction of Interstate Commerce Commission to Award Repar- . ation for Damages. 409. Constitutionality of the Provision of the Act conferring Juris- diction upon the Commission to Award Reparation for Damages. 410. Act to Regulate Commerce contemplates Pecuniary Reparation. 411. Reparation Limited to Damages arising from Violation of the Act. 412. Reparation for Assessment of Charges in Excess of Published Schedule. 413. Reparation for Assessment of Unreasonable Rates. 414. Reparation for Damages accruing from Violation of Long-and- Short Haul Clause. 415. Protest by Shipper or Consignee against Payment of Excessive Freight Charges when demanded by Carrier not a Necessary Prerequisite to Recovery of Reparation for Damages. 416. Commission will not Order Reparation for the Purpose of Equal- izing Rates. 417. Establishment of Through Route for Purpose of Awarding Repar- ation. 418. Claim for Damages can not be based on an Unlawful Privilege. 419. Refund of Overcharge on Shipment to Foreign Country Adjacent. 420. Refund where there is a Clerical Error in the Tariff Resulting in Higher Rate. 421. Where Rates have been Voluntarily Reduced Commission will not award Reparation as a Matter of Course. 422. Commission will not order Reparation where its Effect, will be to make a Reconsigning Privilege Retroactive. 423. Shipper cannot Recover on Contract Rate different from Published Rate. 424. Damages accruing account Detention of Goods until Published Rate is paid by Consignee. 425. Where Damages Result to the Shipper on Account of Failure of the Carrier to Post Rate Schedules. 426. Liability of Carrier for Misrouting Shipments and Reparation therefor. 427. Reparation for Failure of Carrier to Perform Expedited Service as agreed in consideration of Increased Rate. Eegulation — 38. 593 § 408] INTERSTATE TKANSPOETATION. 594 428. Reparation for Damages account Unjust Discrimination. 429. Accrued Claims not Invalidated by Subsequent Cancellation of Absorption Rule. 430. Damages ,to Fruit by Delayed Notice of Arrival at Destination. 431. Remote or Speculative Damages. 432. A Passenger Wrongfully Deprived of Benefit of Return Coupon of a Round-Trip Excursion Ticket may have Reparation. 433. Responsibility of Carrier for Failure to Furnish Proper Cars to which Rates Apply. 434. Where Freight is Unloaded by Carrier's Agent in Depot by Mis- take instead of Switching Car to Consignee's Siding. 435. Liability of Receiving Carrier for Loss or Damage on Interstate Traffic. 436. Assignability of Overcharge Claim. 437. Benefit of Reparation Order Extends to all Like Shipments. 438. Delivering Carrier must Investigate before Paying Claims. 439. Adjustment of Claims on Presentation. 440. Liability of members of Traffic Association for Unreasonable Rate charged. 441. Parties entitled to Reparation. 442. Limitation of Action. 443. Parties to Action for Damages. 444. Rules of Procedure before the Commission. 445. Order of Commission Awarding Reparation. 446. Damages arising from Misquotation of Rates. 447. Change of Rate while Shipment was on the Ocean. 448. Remedy for Wrongs which Occurred prior to the Act. 449. Special Reparation on Informal Complaints. § 408. Jurisdiction of Interstate Commerce Commission to Award Reparation for Damages. 1[A. Jurisdiction in General op Commission to Award Damages. In the case of Washer Grain Co. v. M. P. Ry. Co.,^ the ques- tion was raised as to the jurisdiction of the Interstate Com- merce Commission to award damages — what it is and when it should be exercised. The Commission stated that recognizing that the courts must ultimately determine this question they were unable to avoid an administrative consideration of the subject and inade the following observations: 1 Washer Grain Co. v. Mo. Pac. Ry. Co. (1909), 15 I. C. C. R. 147. 595 DAMAGES AND KEPARATION. [§ 408 ' ' Section 8 of the Act is as follows : " 'That in case any common carrier subject to the provi- sions of this Act shall do, cause to be done, or permit to be done by any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violations of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the Court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.' "It is probably unnecessary to do more than point out that by the terms of Section 8 the damages therein contemplated and the attorney's fee provided for can only be recovered in a suit brought in a court for a violation of the Interstate Com- merce Act and the amendments thereto. "Section 9 provides: " 'That any person or persons claiming to be damaged by any common carrier subject to the provisions of the Act may either make complaint to the Commission as hereinafter pro- vided for, or may bring suit in his or their own behalf for the recovering of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction ; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such ease, and may compel the pro- duction of the books and papers of such corporation or com- pany party to any such suit; the claim that any such testi- mony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying. § 408] INTERSTATE TEANSPOETATIOJST. 596 but such evidence or testimony shall not be used against such person on the trial of any criminal proceedings.' "The Supreme Court in the Abilene Case' has construed the ninth section, and we cannot do better than quote the words of the Court: " 'In other words, we think that it ineyitably foUows from the context of the Act that the independent right of an indi- vidual originally to maintain actions in courts to obtain pe- cuniary redress for violations of the Act conferred by the ninth section must be confined to redress of such wrongs as can consistently with the context of the Act be redressed by courts without previous action by the Commission, and there- fore does not imply the power in a court to primarily hear complaints concerning wrongs of the character of the one here complained of.' "Section 10 makes certain acts of the common carrier, its officers or agents, misdemeanors and provides certain penal- ties therefor, and makes certain analogous acts on the part of shippers misdemeanors, likewise punishable by similar penal- ties, and adds in its last clause, 'and such person, corporation, or company shall also, together with said common carrier, be liable, jointly and severally, in an action on the case to be brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom.' "Clearly ander Section 10 the Commission, as an adminis- trative body having quasi-judicial powers has no authority whatever, as the section is directed solely to court procedure. "The thirteenth section, which relates specifically to pro- ceedings before the Commission, has these words: " 'If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. * * * " 'No complaint shall at any time be dismissed because of the absence of direct damage to the complainant.' 2 T. & P. Ry. Co. V. Abilene Cotton Oil Co. (1907), 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, reversing 38 Tex. Giv. App. 366, 85 S. W. 1052. 597 DAMAGES AND REPARATION. [§ 408 ' ' The obvious meaning of these latter words is that the Con- gress, as shown elsewhere throughout the Act, desired to di- vorce proceedings before the Commission from technicalities that arise very properly in the courts, and to allow complaints to be filed even where there is no direct damage to the com- plainant in order that the Commission might investigate, and that the public generally might, without burdensome tech- nical restrictions, get the full value of the Commission's rul- ings on matters that perhaps to the individual are infinites- imal and indirect, but which are of momentous importance to the public at large. "Section 14 says in regard to the reports made by the Com- mission : " 'In case damages are awarded such report shall include the findings of fact on which the award was made.' "Section 15 has these words: " 'All orders of the Commission, except orders for the pay- ment of money, shall take effect in such reasonable time,' etc. "Clearly by these Sections 14 and 15 awards of money dam- ages made by the Commission are contemplated. "Section 16, so far as damages are concerned, is as follows: " 'That if, after hearing on a complaint made as provided in Section 13 of this Act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this Act, for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or be- fore a day named. " 'If a carrier does not comply with an order for the pay- ment of money within the time limit in such order, the com- plainants * * * may file in the Circuit Court of the United States * * * a petition setting forth briefly the causes for which he claims damages, and the order of the Com- mission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suits the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the Circuit § 408] INTERSTATE TKANSPOETATION. 598 Court nor for costs in any subsequent stage of the proceedings unless they occur upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as part of the costs of the suit. * * * In such suits all parties in whose favor the Com- mission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers par- ties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint paintiffs and against such joint defendants * * * in case of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff.' "The sections quoted above are all that bear directly upon the question of the jurisdiction of the Commission to award money damages in any case. "The CuUom Act, approved February 4, 1887, was inter- preted as giving no authority to the Commission to award damages. In the first annual report of the Commission, dated December 1, 1887, on page 27, the Commission said: " 'In none of these eases so far decided by the Commission has it felt called upon to order reparation to be made for past injury. Most of the cases were such as to present no case for reparation— they looked only to the establishment of a rule for the future. Some complaints, however, were evidently made in the expectation that the Commission might proceed to give damages upon a grievance that would support an action on the common-law side of the Federal Court. The Commission, when such complaints have been brought to a hearing, has not discovered in the statute a purpose to confer upon it a general power to award damages in the cases of which it may take cognizance. The failure to provide in terms for a judgment and execution is strong negative testimony against such a purpose; but what is perhaps more conclusive is that the Act must be so construed as to harmonize with the Seventh Amendment to the Constitution, which preserves the right of trial by jury in common-law suits. " 'It is believed to be unquestionable that parties cannot be 599 DAMAGES AND EEPAEATION. [§ 408 deprived of this right through conferring authority to award reparation upon a tribunal that sits without a jury as assis- tant; and that therefore any determination that reparation should be made in a ease in which a suit at law might have been maintained cannot be made absolutely binding and en- forceable against the defendant in the form of a judgment; but that under the statute it will put the defendant to election, either to satisfy the complaint, in which case he will be re- lieved of further liability or penalty, or, on the other hand, to take the risk of proceedings in a Federal court to recover damages or penalty, or both, in which case the finding of the Commission would be prima facie evidence of the facts recited in it.' ''Thereupon an amendment was presented to the Congress, which was passed and approved March 2, 1889, and the Act was further amended June 29, 1906. By these amendments, particularly the amendments to Section 16, the Commission now has authority to award money damages in certain cases of claims, and its order for reparation if resisted by the car- riers may now be reviewed before a jury in the courts of common law. "Under Section 16 of the Act as originally enacted, the only proceeding authorized to enforce an order of the Commission was in equity. As the constitutional guarantee of the right to trial by jury attaches to an order for mere pecuniary repara- tion, and it was not provided that the findings of the Commis- sion should be received as prima facie evidence in an action at law, an order for reparation, if not a nullity, was at least in- eifective. It was consequently the uniform practice of the Commission to decline to order or recommend reparation. By the Act of March 2, 1889, the original Act was so amended as to provide for trial by jury in proceedings to enforce an order for reparation, and the findings of the Commission were given the force of prima facie evidence in such proceedings.' sMacloon v. C. N. & W. Ry. Co. (1892), 5 I. C. C. R. 84, 3 I. C. R. 711; W. N. Y. & P. R. Co. v. Penn. Refining Co. (1905), 137 Fed. Rep. 343; 70 C. C. A. 23, affirmed Penn. Refining Co. Ltd. v. W. N. Y. & P. R. Co. (1908), 208 U. S. 208; 52 L. ed. 456, 28 Sup. Ct. 268. § 408] INTERSTATE TKANSPOKTATION. 600 "At no time have costs been assessed by the Commission; at no time have attorneys' fees been allowed to the successful parties; at no time has any order or rule of the Commission for the payment had the effect of an order, decree, or judgment of a Court; at no time has an order of the Commission for the payment of money been enforceable by process or been regarded as a lien upon the property of the defendant. The Commission is solely a creation of the Act and the Act has not given any such power or efficacy to its procedure or orders. "Under the Act to Regulate Commerce as amended, partic- ularly under the sixtenth section, providing for a trial de novo before a Court and jury wherever carriers refuse to obey an order of the Commission for the payment of money and making at such trial the findings and order of the Commission prima facie evidence of the facts therein stated, we are of the opinion that the Commission has jurisdiction, without regard to the amount in controversy, to award damages whenever they arise under the Act except in those cases where the Act itself names another forum. "While the Commission, in our opinion, has power or juris- diction to award damages without regard to whether such damages exceed $20 or not, the defendant's constitutional right of a trial by jury being preserved, the Commission has no jurisdiction or power to award damages at all unless such dam- ages shall have arisen strictly as pointed out in the Act. Nor does the jurisdiction or power of the Commission to award damages extend to or embrace all damages pointed out in the Act, for by the Act itself certain damages, after the criminal jurisdiction of the Courts has been invoked, can only be recovered in an action on the case in a Court of the United States of competent jurisdiction. Bee. 10 of the Act, supra. "The leading case of the jurisdiction of the Commission to award damages is Texas & Pacific By. Co. v. Abilene Cotton Oil Co.* decided February 25, 1907, by the Supreme Court of the United States. In that case the Court held: 'That the * See note 2, supra. 601 DAMAGES AND KBPAKATION. [§ 408 Act to Regulate Commerce was intended to afford effective means for redressing the wrongs resulting from unjust discrim- ination and undue preference is undoubted. * * * ^j^j j^ is apparent that the means by which these great purposes were to be accomplished was the placing upon all rates which should have a uniform application to all and which should not be de- parted from so long as the established schedule remained un- altered in the manner provided by law * * *_ " 'When a general scope of the Act is enlightened by the considerations just stated it becomes manifest that there is not only a relation, but an indissoluble unity between the provision for the establishment and maintenance of rates until corrected in accordance with the statute and the prohibitions against preferences and discrimination * * * _ " 'Indeed, no reason can be perceived for the enactment of the provision endowing the administrative tribunal, which the Act created with power, on due proof, not only to award reparation to a particular shipper, but to command the car- rier to desist from violation of the Act in the future, thus com- pelling the alteration of the old or the filing of a new schedule, conformably to the action of the Commission, if the power was left in the Courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to a previous action by the Commission in the premises. This must be be- cause if the power existed in both Courts and the Commission to originally hear complaints on this subject there might be a divergence between the action of the Commission and the de- cision of a Court. In other words, the established schedule might be found reasonable by the Commission in the first in- stance and unreasonable by a Court acting originally, and thus a conflict would arise which would render the enforcement of the Act impossible » * # _ " 'A shipper seeking reparation predicated upon the reason- ableness of an established rate must, under the Act to Regulate Commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain proceedings for the alteration of an § 408] INTERSTATE TRANSPORTATION. 602 established schedule, because the rates fixed therein are un- reasonable. ' "While the Abilene Case, supra, settles the primary jurisdic- tion of the Commission to determine the reasonableness 6r un- reasonableness of an established rate and to award reparation predicated upon the unreasonableness of an established rate, we believe that our jurisdiction is also primary in matters of un- just discrimination, undue or unreasonable preference or ad- vantage, undue or unreasonable prejudice or disadvantage, and generally whenever the Commission may order the carrier to cease and desist from violations of the Act. As we said in the case of the Railroad Commission of Ohio ct al. v. Hocking Valley By. Co.^ " 'Every reason advanced by the Supreme Court in support of the conclusion that the lower court had not original juris- diction in rate matters appears to apply with equal force to our view that the Commission has original jurisdiction of ques- tions of discriminatory practices prohibited by the Act to Reg- ulate Commerce.' "Many matters that appear to involve discrimination only do affect and involve the rates and charges paid by the shipper. If, therefore, the Commission has jurisdiction primarily to consider questions of unjust discrimination, undue or unrea- sonable preference or advantage to persons, localities, or par- ticular descriptions of traffic, etc., it would seem also to have jurisdiction to award reparation or damages in connection therewith when properly proved. ' ' Tl B. Jurisdiction of Commission over Claims for Loss of Profit caused by Tardy Delivery of Property; also Loss and Damage to Property in Transit. Because of the failure of an express company to make prompt delivery of a carload of fruit at the unloading station desig- nated by the shippers, the latter were unable to take advan- tage of a high market but were compelled later to sell at lower prices ; for the loss thus sustained they filed a complaint 5 Railroad Commission of Ohio v. Hocking Valley Ry. Co., 12 I. C. C. R. 398. 603 DAMAGES AND EBPAKATION. [§ 408 with the Interstate Commerce Commission demanding repara- tion." The Commission in dismissing the action said: "Is it com- petent for the Commission to act upon a complaint of this nature and to award damages of this character? We have not so understood our authority under the amended Act to Regulate Commerce. The general purpose of the Act, as is fully revealed in its first five sections, was to secure just and reasonable rates ; to prohibit unjust and discriminatory rates in the performance by carriers of like services under similar con- ditions and circumstances; to prevent undue and unreasonable preferences ; to forbid a higher charge for shorter than "for a longer haul in the same direction, the shorter being contained within the longer haul; and to render unlawful all combina- tions among carriers for the pooling of freights. In a word, as a regulative measure the Act confers upon the Commission power and authority to enter only with respect to the rates and practices of carriers, and that this was its general object ap- pears no less clearly from an analysis of the statute itself than from the public discussion that accompanied its enactment. It was not intended by the Congress that the Commission should supplant and take the place of the Courts with respect to that large class of complaints that may arise out of the failure of carriers to carry out their contracts of transportation promptly and safely, and properly to perform their duties as common carriers in the handling of shipments entrusted to them for carriage from one point to another. As to all such claims, as we have had occasion frequently to say in connection with informal complaints of this character, the Commission is without authority to afford redress. It is true that the Act au- thorizes the Commission, after full hearing and upon complaint made, to award damages, but it is careful to restrict that au- thority to cases in which the carrier may be liable under the provisions of the Act. The express language of Section 8 is that 6 Blume & Co. v. Wells, Fargo & Co. (1909), 15 I. C. C. R. 53, cited in Carstens Packing Co. v. Oregon Railroad & Nav. Co. et al., 17 I. C. C. R. 125 (1909). § 408] INTERSTATE TEANSPOETATION. 604: in the case of the commission or omission by the carrier of any matter or thing prohibited or required by the Act, 'such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in conse- quence of any such violation of the provisions of this Act.' In Section 9 the provision is that the person injured 'may bring suit * * * for the recovery of that damage for which such common carrier may be liable iinder the provisions of this Act. ' In Section 16 the Commission is authorized to make an award of damages whenever, after hearing and upon complaint made, it shall find that the party complainant 'is entitled to an award of damages under the provisions of this Act for violation there- of. ' It is a violation of the provisions of the Act for a common carrier to demand and collect an unlawful or discriminatory rate, and of complaints based upon such violations the Com- mission has full jurisdiction and may afford redress by estab- lishing reasonable rates to govern future shipments and award- ing reparation with respect to past shipments. The Commis- sion may also require carriers to desist from unlawful prefer- ences and otherwise regulate the rates and practices of car- riers but with respect to the performance by carriers for the shipping public of their general duties as common carriers other than those covered by the Act, the Commission is wholly without authority. Breaches of duty in that respect, such as the loss of or damage of property in transit, the failure to make delivery safely and with reasonable dispatch in accord- ance with the contract, express or implied, which a carrier enters into when accepting a shipment for carriage, are matters that are solely within the jarisdiction of the Courts." The remedy of a party for injury to goods shipped resulting from delay, detention, loss, breakage, rotting or other deter- ioration or damage, not attributable to a violation of any pro- visions of the Act to Regulate Commerce, is by appropriate action in the Courts.' T Blanton-Duncan v. A. T. & S. P. Ry. Co. et al. (1893), 6 I. C. R. Sf), prtdlcated on Loud v. S. C. Ry. Co., 4 I. C. R. 205; see also Duncan V. A. T, & S. F. Rd. Co. et al. (1893), 6 I. C. R. 85; 4 I. C. R. 385; ate Joynes v. Pa. Rd. Co. (1909), 17 I. C. C. R. 361. 605 damages and ebpaeation. [§ 408 t[ c. jueisdiction of commission to award reparation eoe Damages accruing on Shipments that moved under Published Tariff Eates that weee Subsequently declaeed to be Unjust and Unreasonable. In the case of ArJcansas Fuel Co. v. C, M. & St. P. By. Co./ the defendant asserted that the only power which the Commis- sion had to-modify or change a published rate is that conferred under Section 15 of the Act, the specific terms of which, as the defendant contended, limits its authority to the establish- ment of reasonable rates for the future, and does not authorize the Commission to change a rate upon which a shipment has already moved. In Poor Grain Co. v. C.^ B. & Q. B. B. Co.,^ the Commission said that "a rate may be lawful in the sense that it is the reg- ularly published rate and therefore the only rate under which traffic may lawfully move, and yet at the same time be unlaw- ful in the sense that it is excessive and unreasonable in amount. Its lawfulness as the published, rate is to be tested by the mere inspection of the schedules on file' with the Commission; and if found to have been published in conformity with the require- ments of law that rate must in all cases be charged, and actually collected by the carrier even though it may be excessive. Whether or not it is unlawful in the sense of being excessive depends upon all the circumstances and conditions that are recognized as having a legitimate influence in rate making. And in Coomes v. C, M. & St. P. By. Co.,''" the Commission said: "Although a rate is by the terms of the law binding upon all so long as it remains in effect, such rate may, nevertheless, upon proper procedure, be found and declared to be unlawful 8 Arkansas Fuel Co. v. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 95; see also Allen & C. M. & St. P. Ry. Co., 16 I. C. C. 293; Flint & Walling Mfg. Co. v. L. S. & M. S. Ry. Co. et al. (1908), 14 I. C. C. R. 336; Kansas City Hay Co. v. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 100. 9 Poor Grain Co. v. C. B. & Q. R. R. Co. (1907), 12 I. C. C. R. 418. 10 Coomes v. C. M. & St. P. Ry. Co., 13 I. C. C. R. 192; Nicola, Stone & Meyers Co. v. L. & N. R. R. Co. et al., 14 I. C. C. R. 199. § 408] INTEKSTATE TEANSPORTATION. 606 in that it is unreasonably high or unduly discriminatory, and become in respect to shipments made while the unjust rate was in effect the basis of an award in damages. To hold other- wise would be to make the mere establishment of rates by a carrier conclusive of their reasonableness and justness while in effect * * « "While the establishment of rates by the carrier in the man- ner required by law fixes the standard of lawful rates for the time being and so long as such established rates are in effect, this standard is by no means conclusive of their reasonableness and justness." But the defendant insisted that this view of a rate established by the carrier in the manner prescribed by law is illogical; that if the rate was lawful when paid by the shipper it must be held and considered to be a lawful rate for all purposes so far as shipments in the past are concerned; that it is a con- tradiction of terms to say that the published rate is the legal rate and to hold at the same time that it may be treated as an unreasonable and unjust and therefore unlawful rate ; and that so long as it remains the legal rate, that is to say, until it is voluntarily changed or ordered by the Commission to be changed, the payment of the published rate cannot lawfully be made the basis of a subsequent claim for damages with respect to a shipment that moved under it. The Commission said:^^ "We have not been able to take that view of the matter. It has been said that the word 'legal' looks more to the letter and 'lawful' to the spirit of the law; that 'legal' imports rather that the forms of law are observed and the rules prescribed obeyed, and the word 'lawful' that the act is rightful in substance. The two words may aptly be used as illustrative of the distinction that we have attempted to draw in the cases cited. It is provided in Section 6 of the Act that no carrier shall collect or receive a greater or less compensation than the rates specified in the tariff in effect at the time of the movement. Other provisions of law make it a misdemeanor for the carrier to depart from the published 11 See note 8, supra. 607 DAMAGES AND SEPARATION. [§ 408 rate. In dealing with shippers the carrier is therefore required to conform the freight charges actually collected to the amount fixed in its published tariffs. In that sense the published rate in effect at the time of the movement is therefore the legal rate. It is what the letter of the law requires the shipper to pay and the carrier to collect. But the first section of the Act, following the rule of the common law, declares that all charges for services rendered by a carrier in the transportation of passengers or property shall be reasonable and just. ■ It also declares every unjust and unreasonable charge for such a serv- ice to be unlawful. "In publishing a rate or a schedule of rates, the carrier therefore acts under this admonition of the statute. If it pro- mulgates a rate in violation of this injunction, that is to say, if it establishes a rate that is excessive and therefore unjust and unreasonable, it is not a lawful rate when its reasonable- ness is subsequently questioned upon complaint filed. While it may be, and indeed is, the legal rate — the rate that must be paid by the shipper and collected by the carrier because it is the published rate — the mere publication cannot make a rate lawful that is unreasonable and excessive. No rate can be lawful, in the sense of being immune from attack, either with respect to past or future shipments, if it be excessive and unreasonable in amount. "The Commission has therefore held that the Act not only gives a remedy against excessive and unreasonable rates as applied to shipments to be made in the future, but also affords the shipper a means of recovering excessive charges on ship- ments made by him in the past under rates that were unjust and unreasonable. A careful reading of the Act, and particu- larly of Sections 8, 9, 13, 14, and 16, seems to leave no doubt that the Commission upon complaint made and hearing had, may award damages on past shipments if the proof shows to its satisfaction that the rates under which the shipments moved were excessive and unreasonable, for the law declares every unjust and unreasonable charge to be unlawful. "The Commission also has authority to measure the shipper's damages upon the basis of such lower rate as it may find from § 408] IITTBRSTATE TKANSPOETATION. 608 the evidence would have been a reasonable and just charge for the service rendered. The sections referred to not only give the Commission a procedure for trying such issues, but afford to shippers a process in the Courts for enforcing any such order of the Commission." The question of the authority of the Commission to order reparation in such eases seems to be settled conclusively in Texas & Pacific By. Co. v. Abilene Cotton Oil Co.,^' in which the Supreme Court of the United States said: "Although an es- tablished schedule of rates may have been altered by a carrier voluntarily or as the result of the enforcement of an order of the Commission to desist from violating the law, rendered in accordance with the provisions of the statute, it may not be doubted that the power of the Commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs unlawfully suffered from the appli- cation of the unreasonable schedule during the period when such schedule was in force." The exercise of such authority is but the enforcement of that equality which the statute commands.'^' When the Commission has determined that the rates con- tairied in an established schedule are unreasonable, it has the power not only to award reparation, but to command the car- rier to desist from violation of the Act in the future, thus com- pelling the alteration of the old, or the filing of a new schedule of rates. ^* U D. AuTHOEiTf OF Commission to Awaed Eepaeation in A Case invoi-ving Collection op a Eate Highee than THAT NAMED IN THE PUBLISHEP TAEIFP. In Laning-Harris Coal & Grain Co. v. St. L. & S. F. B. B. Co.,^^ the Commission, per Knapp, Chairman, stated, "Whether the Commission has authority to award damages in a case where 12 See note 2, supra. 13 Ibid. 14 Ibid. 15 Laning-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co. (1909), 15 I. C. C. R. 37. 609 DAMAGES AND REPARATION. [§ 408 a carrier collects a greater sum on an interstate shipment than is fixed by its published tariffs, or whether the shipper must seek his remedy in the Courts, presents a question somewhat more difficult. But upon consideration of the various provi- sions of the Act, it is believed that the question should be re- solved in favor of the Commission 's authority to make such an order. The Commission is authorized to award reparation to any person or persons found to be damaged by any common carrier subject to the provisions of the Act, for a violation thereof. One of the leading prohibitions of the Act is that against the exaction of an unreasonable rate, and it is well settled that the Commission has authority to award reparation in case of the exaction of an unreasonable rate. As against the carrier its published tariff rate is conclusive of the fact that any higher rate is unreasonable. It seems fairly certain that in cases of the exaction of a rate higher than the pub- lished tariff the shipper may bring his suit in Court in the first instance, but the Act also appears to give the Commission and the Courts concurrent jurisdiction in this respect." T[ B. Primary Jurisdiction of the Commission over Ac- tions POR Eepakation Predicated upon the Eeason- ABLENESS OF AN ESTABLISHED EATE. A shipper cannot maintain an action against a common car- rier to obtain relief from an alleged unreasonable freight rate exacted from him for an interstate shipment, without reference to any previous action by the I. C. C. where such rate has been filed with that Commission and promulgated as provided by the Act to Eegulate Commerce, and is the rate which it is the duty of the carrier, under that Act, to enforce against shippers until changed in accordance with the provisions of that statute, since the independent right of an individual or- iginally to maintain actions to obtain pecuniary redress for violations of the Act, conferred by Section 9 must be confined to such wrongs as can consistently with the context of the Act, be redressed without previous action by the Commission; and the provisions of Section 22, that nothing therein "shall in any way abridge or alter the remedies now existing at common law Eegulation — 39. § 408] INTERSTATE TEANSPOETATION. 610 or by statute, but the provisions of this Act are in addition to such remedies," cannot be construed as continuing in shippers a common-law right the continued existence of which would be absolutely inconsistent with the provisions of the statute.^* The Court said: "While repeals by implication are not favored and a statute will not be construed as abrogating an existing common-law remedy, it will be so construed if such preexisting right is so repugnant to it as to deprive it of ite efficacy and render its provisions nugatory. "^^ U P. JUEISDICTION OF COMMISSION TO AWAED EePARATION FOE Miseouting Teaffic. In the ease of Woodward & Dickson v. L. & N. Rd. Co. et al.,^^ the complainant shipped two carloads of crude phos- phate rock from St. Blaise, Tenn., to Eiddlesburg, Pa., but in- stead of the shipments going over the route directed at the published rate of $3.45 per gross ton, they were diverted at Cincinnati by the initial carrier to another route over which the $3.45 rate did not apply. Upon complaint the Commission awarded shippers damages for the excess charges caused by such misrouting. Upon motion of the defendants to dismiss the ease upon the ground that the Interstate Commerce Com- mission was without jurisdiction to award damages for the diversion of a shipment from a route prescribed by the con- signor, the Commission said: "There is but one theory upon which such jurisdiction may be upheld, namely, that by such diversion some provision of the Act to Kegulate Commerce has been violated, as the power of the Commission to award damages is limited to such eases as arise out of violation of the Act. "Wherein, therefore, does the law provide that carriers who accept shipments must carry them via any specific route and be responsible for dam- is See note 2, supra. 17 T. & P. Ey. Co. V. Abilene Cotton Oil Co. (1907), 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350; cited in Southern Ry. Co. v. Tift (1997), 206 V. S. 428, 51 L. ed. 1124, 27 Sup. Ct. 709. 18 Woodward & Dickerson v. L. & N. R. R. Co. (1909), 15 I. C. C. R. 170. 611 DAMAGES AND REPAEATION. [§ 408 ages in the event of failure so to do ? It may be flatly stated that no such mandate is to be found in the law ; nevertheless, we think it clearly and necessarily arises from the provision that carriers may make such joint rates and publish same, to- gether with all privileges extended, and 'any rules or regula- tions which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. '^^ "The L. & N. made a joint arrangement with other carriers for the transportation of phosphate rock from St. Blaise, Tenn., to Eiddlesburg, Pa., and published that rate as its rate. The rate was a unit and the route was a unit. In its tariff the Louisville & Nashville Eailroad did not reserve the right of diversion to any other route over which a higher rate would necessarily and legally be applicable. To be sure a provision in its bill of lading attempted to do this, but such provision being outside its tariff announcement was in no sense a limi- tation upon the right of the shipper to have his commodity transported in the manner and at the rate specified in the rate schedule.^" "It is no longer strictly correct to speak of the contract of shipment and the bill of lading as evidencing the terms of such contract, for under a governmental-prescribed system of publishing rates a carrier is not free to contract with respect to the rate, but is required by law to perform a service for the public under the tariffs of charges and regulations which, though furnished by it, are legally enforceable, not by reason of any contract, but by virtue of the legal prescription. To say, therefore, that a carrier in diverting a shipment from a route which it has made under sanction of the law is only liable for breach of contract, and that in a court of law, is to gravely misconstrue the purport of the Act to Eegulate Commerce. This statute commands that carriers shall provide for certain transportation and shall make public* the rates IS Act to Regulate Commerce. Section 6. 20 B. & O. R. R. V. Hamburger, 153 Fed. Rep. 849. § 408] INTERSTATE TKANSPOKTATION. 613 applicable thereto, and that the carrier who omits to do what is required to be done shall be liable to the person injured for the full amount of the damages sustained. The LouisAdlle & Nashville Railroad failed to furnish the transportation it held itself out to give at the rate which it announced, and for this failure the shipper is entitled to the damage which he suffered, the diiferenee between the amounts imposed by the carriers upon the shipments made and the legally published joint rate which would have been applied had the shipments moved over the through route established by the Louisville & Nashville and its connections." The Commission intervenes in misrouting cases only when, as the result of the failure to obey the shipper's routing in- structions, or as a result, without such instructions, of moving a shipment over a route carrying a higher rate than the rate in effect over another route reasonably available, additional transportation charges accrue.^^ U G. Shkiitkagb of Cattle in Transit. The Commission is without authority to award reparation for shrinkage in weight of cattle while in transit due to delay of carrier. The remedy for such injury is by appropriate action in the courts. ^^ T[H. Eepakation on Intrastate Traffic. The Commission has no authority to award reparation on shipments that moved wholly between two points in the same State.^^ HI. Action foe Trespass. The Commission has no authority to consider a claim in the nature of an action of trespass.^* 2iLarrowe Milling Co. v. C. & N. W. Ry. Co. et al. (1910), 17 I. C. C. R. 443. 22 Carste'hs Pkg. Co. v. O. R. R. & N. Co. (1909), 17 I. C. C. R. 125, predicated on Duncan v. A. T. & S. F. Ry. Co. et al., 6 I C. C. R. 85. 23 Rogers & Co. v. P. & R. Ry. Co. (1907), 12 I. C. C. R. 309. 24 Council V. W. & A. Rd. Co. (1887), 1 I. C. C. R. 339; 1 I. C. R. 638. 613 DAMAGES AND REPARATION. [§ 408 1[J. Jurisdiction of Commission to Award Eeparation eor Overcharge due to Error in Weighing. The Coininission has authority to award reparation for un- just charges on shipments due to error in weighing.^^ Tf K. Jurisdiction of Commission to Award Reparation for Damages Resulting from Discrimination in Fur- nishing Transportation Facilities. The Commission has authority to award reparation for dam- ages directly and proximately resulting from unjust discrimi- nation in furnishing transportation facilities to shippers.^' H L. Authority of the Commission to Award Set-off. It is obvious that the Commission has no authority to award set-off. The Commission is not empowered to make an order requiring the complainant to pay money damages to a rail- road company; it has no general common law or equity juris- diction, but only such authority as is prescribed in the Act to Regulate Commerce. Generally speaking, the right to award set-off in an action at law is created by the statute to avoid multiplicity of suits, but the right to make such award neces- sarily involves authority in the court to adjudicate the claims of both parties. It is clear that the Commission, whose author- ity is in the nature of an extraordinary remedy, is not author- ized to adjudicate the claim of a railroad company against a shipper, but only the claims of a shipper against a railroad company for violation of the interstate;, commerce law. To award set-off amounts to the same thing as adjudicating the claim of a railroad company against the shipper, and entry of an order based upon set-off could occur 'only after such ad- judication. Plainly, if the Commission is without authority 25 Leonard v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 538. 28 Rogers & Co. v. P. & R. Ry. Co. (1907), 12 I. C. C. R. 308; Baton v. C. H. & D. R. Co. (1906), 11 I. C. C. R. 619; Gallogly & Firestine v. C. H. & D. R. Co. (1905), 11 I. C. C. R. 1; Paxton Tie Co. v. Det. Southern R. Co. (1904), 10 I. C. C. R. 422; Glade Coal Co. v. B. & O. R. Co. (1904), 10 I. C. C. R. 226. § 408] INTERSTATE TRANSPORTATION. 614 to determine the rights of the parties, it is also powerless to enter' an order based upon a determination of these rights." For example, on one shipment by the complainant the de- fendant collected more than the lawful rate. On another ship- ment, it collected a less sum than that to which it was entitled. Held, That the Commission was without authority to offset the claims.^* IJM. Abatement of Jurisdiction of Commission when a Territory is Admitted as a State. Reparation asked on account of alleged unreasonable freight rates charged on shipments of cross-ties moving between April 25 and August 12, 1907, from Barnett, Ind. T., to Mc- Alester, Ind. T. Subsequent to the movement of these ship- ments and the filing of the petition the Territory was admitted as a State into the Union and the points of origin and desti- nation are now located in the State of Oklahoma. By the Act of Congress admitting Oklahoma to statehood the intra- territorial jurisdiction of the Commission ceased to apply to territory now embraced in that State. The Commission can make no lawful order in any case of which it has no juris- diction under the provisions of the Act to Regulate Commerce. Complaint was dismissed for want of jurisdiction. Motion for rehearing denied.^' ^TS. Jurisdiction of Commission over Breach of Contract. The Commission has no power either to enforce the specific performance of contractual obligations or to award damages for the breach of such agreements between carriers and ship- pers.*" 27 See note 15, supra. 28 Pitts & Sons V. St. L. & S. P. Rd. Co. et al. (1905), 10 I. C. C. R. 684. 29 Hussey v. C. R. I. & P. Ry. Co. (1908), 13 I. C. C. R. 366, motion for rehearing denied, 14 I. C. C. R. 215. 30 General Electric Co. v. N. Y. C. & H. R. R. Co. et al., 14 I. 0. C. R. 237; LaSalle & Bureau County Railroad Co. v. C. & N. W. Ry. Co., 13 I. C. C. R. 610. 615 DAMAGES AND REPARATION. [§ 408 U 0. Commission no Jurisdiction to Authorize Eefund FROM Tariff Eate. The Commission has no jurisdiction to authorize a carrier to make a refund from the charges collected on the basis of the published rate, unless upon hearing of a complaint it affirmatively find the rate charged to be excessive and un- reasonable, and therefore unlawful.^'^ 1[P. Commission no Authority to Award Eeparation for Damages due to Carrier's Failure to Perform Spe- cial Service as Agreed. Where a special service is required of the carrier, such as rapid transit and speedy delivery in cases of perishable freight, a higher rate than for the carriage of ordinary freight is war- ranted, jind, if a carrier charging a rate based on such special service, fails to render it, to the damage of the shipper, and without legal, excuse, the remedy of the latter would seem to be by a proper proceeding in a court of law.^^ 11 Q. Jurisdiction of Commission to Award Eeparation based on Division of Eevenue between Carriers. The power of the Commission to award reparation does not extend to the division of rates between carriers. Claims ex contractu are not cognizable by the Commission. It cannot therefore order the payment of money for services performed nor for a debt due one carrier from another on account of joint rates for a joint service. Such claims rest upon contract, ex- press or implied. The jurisdiction of the Commission and its authority in this respect are limited to reparation for dam- ages caused by violation of some provision of the Act to Eegu- late Commerce.^' 31 Poor Grain Co. v. C. B. & Q. Ry. Co. et al. (1907), 12 I. C. C. R. 418. 32 Loud V. Southern Carolina R. Co. et al., 4 I. C. R. 205. 33LaSalle & Bureau County Rd. Co. v. C. & N. W. Ry. Co., 13 I. C. C. R. 610. § 409] INTERSTATE TEASTSPORTATIOHT. 616 §409. Constitutionality of the Provision of the Act confer- ring Jurisdiction upon the Commission to Award Reparation for Damages. The Act to Regulate Commerce provides that any person suffering damage by failure of a common carrier subject thereto to obey its provisions, may apply to the Commission, which is required to ascertain what damage the complainant has sustained, if any, and to order the carrier to make repa- ration in the premises. It has been forcibly contended that this portion of the Act is unconstitutional in that it imposes upon an administrative body judicial functions. The order for reparation is not obligatory upon the carrier. It amounts simply to a recommendation which can only be enforced by a suit at law in which full opportunity for a jury trial is accorded. Plainly, Congress, having jurisdiction of this sub- ject, might create a body with authority to inquire whether the Act had been violated, and what damages had been sus- tained. It might probably make the report of that body prima facie evidence in a suit brought by the person sustaining these damages for their recovery, so long as there was pre- served to the defendants a trial by jury in due form of law. The Act creating the Commission clearly confers the authority and it is their duty to proceed as the statute requires. No order of the Commission awarding damages can be enforced against carriers ; not a dollar of their property can be taken, except by the judgment of a court in which this question can be raised and passed upon. Therefore, the Act is constitu- tional and valid in this respect. The Commission may under the Act make orders of two kinds. It may make an adminis- trative order which refers to the future, or it may award dam- ages for what has transpired in the past. The methods of en- forcing them are equally distinct. In one case application is made to a court of equity which determines all questions of fact and employs, if need be, its mandatory powers in the en- forcement of the orders. In the other case a suit at law is brought, in which the issue of fact is decided by jury. These two orders may be made in the same ease, but they are in no Bl? DAMAGES AND KEPAKATION. [§ 410 way connected and the right to make one is not necessarily conclusive of the right to make the other. If, for example, upon a complaint alleging the unreasonableness of rate and demanding reparation the Commission should find the rate unreasonable and order the carrier to charge for the future a given irate which was determined to be reasonable, that order would be invalid because beyond the power of the Commis- sion, and the Court would decline to enforce it, but the refusal of the Court to enforce such an order would be no bar to the right of the Commission to grant reparation to the extent that the carrier had exacted more than a reasonable rate in the past. The Commission is not a judicial, but rather an administra- tive body. It is authorized by the Act creating it to make rules for the conduct of its business and alter those rules from time to time. It may well have been in contemplation that such a body proceeding without the formalities of judicial trial might arrive at a conclusion with less expense and delay than a court. At the same time the duty of the Commission in the assessment of damages is quasi- judicial. While its order for the payment of damages is nothing more than a recom- mendation which is to be treated as prima facie evidence in a suit for the collection of such damages, nevertheless, in the nature of things the carrier would seldom care to submit its case anew to a jury, and if it did so would be seriously preju- diced by the findings of the Commission. The railway must as a practical matter try the questions of fact in its ease before the Commission, and it should be furnished with whatever information it needs to intelligently prepare its defense.^* §410. Act to Regulate Commerce Contemplates Pecuniary Reparation. The Act contemplates that pecuniary reparation in proper cases shall be made to persons sustaining damages through the violation of its provisions by a common carrier subject thereto, whether proceedings are instituted by complaint be- 34 Cattle Raisers' Association of Texas et al. v. C. B. & Q. R. R Co. et ai.. 10 I. C. C. R. 83. §§411,413] INTERSTATE TRANSPORTATION. 618 « fore the Commission, or are brought in the first instance in a court of the United States.'^ §411. Reparation Limited to Damages Arising from Viola- tion of the Act. In actions brought under Section 9 of the Act to Regulate Commerce for the recovery of damages, only those damages may be recovered which arise from violation of that statute.^" Under Section 14 of the Act, the Commission can recom- mend reparation only in those cases where actual injury has been sustained from an omission or failure to observe some requirement of the Aet.^^ § 412. Reparation for Assessment of Charges in Excess of Published Schedule. T[A. Manner in which Overcharges Accrue. Overcharges on shipments may accrue in two ways, i. e., by the assessment of an excessive rate, or due to error in weigh- ing the shipment. H B. Measure of Damages. The measure of damages for charging more than the sched- ule rate is the difference between that rate and the rate actu- ally exacted.'' The measure of damages due to error in weighing the ship- ment is the difference between the freight charges based on the erroneous weight and those based on the actual weight of the shipment. T[ C. Eight of Shipper to Recover Overcharges. If, after adopting, printing and posting a schedule of rates, as required by Section 6 of the Act, the carrier exacts from a 35 w. N. Y. & P. R. Co. V. Penn. Refining Co. (1905), 137 Fed. Rep. 343, 70 C. C. A. 23, affirmed Penn. Refining Co. Ltd. v. W. N. Y. & P. R. Co. (1908), 208 U. S. 208; 28 Sup. Ct. Rep. 268, 52 L. ed. 456. 36 Van Patten v. C. M. & St. P. Ry. Co. (1897), 81 Fed. Rep. 545. 3T Railroad Commission of Florida v. S. F. & W. Ry, Co. et al. (1891), 5 I. C. C. R. 13; 3 I. C. R. 688. 38 Van Patten v. C. M. & St. P. Ry. Co. (1897), 81 Fed. Rep. 545. 619 DAMAGES AND EEPAEATION. [§ 413 shipper in any form or by any device a rate greater than that fixed in the schedule, an action will lie, under Section 9, for the recovery of damages.^' Tf D. Eefund of Teanspee Chaeges. The Commission has awarded reparation to a complainant on account of an overcharge to cover transfer charges accru- ing because of the refusal of the delivering carrier to receive a car from its connections.*" § 413. Reparation for Assessment of Unreasonable Bates. 1[A. Measuee of Eecoveet. The measure of damages for the assessment of an unreason- able rate is the difference between the rate paid and the reason- able rate which should have been charged as determined by the Commission.*^ And this is true even though the shipper may not ultimately be damaged by the payment of the higher rate.*^ TfB. Eate must have been Uneeasonable when Paid to Justify Eefund. In order for the Commission to grant reparation for an un- reasonable rate it must be determined that such rate was un- reasonable at the time it was paid.*^ The Commission will de- cline to award reparation unless it can affirm with sufficient confidence that the rate was unreasonable in the past.** 39 Van Patten v. C. M. & St. P. Ry. Co., 81 Fed. 545. 40 Germain Co. v. N. O. & N. E. Rd. Co. et al. (1909), 17 I. C. C. R. 22. iiMcGrew v. Mo. Pac. Ry. Co. (1901), 8 I. C. C. R. 630; American Grass Twine Co. v. C. St. P. M. & O. Ry. Co. et al. (1907), 12 I. C. C. R 141; Allen & Co. v. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 295; Penn. v. F. C. & P. R. Co., 3 I. C. R. 740; Flint & Walling Mfg. Co. v. L. S. & M. S. Ry. Co. (1908), 14 I. C. C. R. 336. *2 Burgess et al. v. Transcontinental Freight Bureau (1908), 13 I. C. C. R. 668. *3 Grain Shippers Association, etc., v. 111. Cent. Rd. Co. et al. (1899), 8 I. C. C. R. 158. 44 Johnston V. St. L. & S. F. Rd. Co. (1907), 12 I. C. C. R. 73. § 413] INTERSTATE TEANSPOETATION. 620 It is not the province of the Commission to order reparation for the exaction of an alleged unreasonable charge merely upon a showing that the carrier is willing to honor the claim. An award of reparation can be predicated only upon an affirmative finding that the rate exacted was in fact excessive.*^ H C. EeDUCTION in EATE EaISES no PEESUMPTION THAT FOEMEE Eate was Uneeasonablb foe Pueposes of Eepaeation. The Commission has stated that it must not be understood that whenever it reduces a rate, that it necessarily follows that it will award reparation upon the basis of the rate estab- lished for two years preceding the filing of the petition. There is no conclusive presumption that a rate reasonable today was reasonable a year before or a day before, since^ reasonable rates vary from time to time, and some point of division must be found. Where, therefore, rates have been established and maintained by the carrier in good faith, especially where they have been long in effect and acquiesced in by shippers without protest, the Commission will not award reparation, even though the rate is reduced, unless it clearly appears that the rates paid in the past have been excessive.** It does not necessarily follow that because a rate is unreason- able today that it has been unreasonable at all times in the past.*' Neither does it follow, as a matter of course, where the Commission finds that the ends of justice require the re- duction of a rate complained of, that reparation must be or- dered on shipments previously made.** A carrier voluntarily establishing a through rate less than the sum of the locals after a shipment has moved does not, ipso facto, become liable for the difference between the amount charged and the amount which would have been collected if the through rate had been in effect at the time of the move- ment.*° 45Pabst Brg. Co. v. C. M. & St. P. Ry. Co. et al. (1909), 17 I. C. C. R. 359. 46 Penrod Walnut & Veneer Co. v. C. B. & Q. Rd. Co. et al. (1909), 15 I. C. C. R. 326. 47 See note 44, supra. 48 Farmers Warehouse Co. v. L. & N. Rd. Co. (1907), 12 I. C. C. R. 457. 49 Stock Yards Cotton & Linseed Meal Co. v. M. K. & T. Ry. Co. et al. (1909), 17 I. C. C. R. 295. 631 DAMAGES AND EEPAEATION. [§ 414. TID. Eight of Shipper to Eecovee Damages sustaiisted THROUGH HIS EeEUSAL TO ShIP BECAUSE CARRIER DE- MANDED Unreasonable Eate. Complainant desired to ship cottonseed in carloads from Louisiana stations on defendant's line to Hope, Ark., at the sum of local rates based on Texarkana, Ark., which sum was less than the published through charge, but defendant refused to apply its local rate to Texarkana, which was 12% cents per 100 pounds on such through shipments, and also refused to allow complainant to ship locally to Texarkana under the 12%-eent rate in force to that point. Held, That, while the defendant was entitled to insist upon the application of the through rate to the through shipment to Hope, it could not lawfully refuse to receive and carry complainant's freight to Texarkana under its local rate to that point, and that com- plainant is entitled to reparation for damages resulting from its inability to ship 640 tons of cottonseed to Hope which it had contracted for and desired to have transported over de- fendant's line. That, while a plaintiff may not unnecessarily aggravate his damages, but must rather use reasonable care to mitigate them, this duty can hardly extend to complying with an unlawful demand of the defendant.^" § 414. Reparation for Damages Accruing from Violation of Long-and-Short-Haul Clause. T[A. Eight of Shipper to Eeoover. Between May, 1902, and April, 1903, the complainants shipped five carloads of bananas from Charleston, S. C, to Danville, Va., the rate thereon being 43 cents per 100 pounds. During that period the rate on bananas from Charleston via Danville to Lynchburg, Va., was only 20 cents per 100 pounds. The Ipwest competitive rate affecting shipments to Lynchburg was 33 cents. Held, That since complainant's competitors at Lynchburg were favored with a rate 13 cents lower than that 50 Hope Cotton Oil Co. v. T. & P. Ry. Co. (1905), 10 I. C. C. R. 696. § 415] INTERSTATE TEANSPOETATIOlT. 632 to which they were lawfully entitled, complainants were en- titled to a like deduction from the rates actually paid; that reparation on the basis of 13 cents per 100 pounds should be awarded. °^ 1[B. Measure oe Damages. The measure of damages for a violation by a carrier of the long-and-short-haul provision of the Act to Regulate Com- merce is the difference between the rate charged for the shorter and that charged for the longer haul, multiplied by the num- ber of hundred pounds of freight on which the higher rate was paid.^^ Where a carrier has charged a higher rate for a short than for a long haul, in violation of Section 4 of the Act, shippers who have paid the rate to the shorter distance point are en- titled to recover the excess paid by them above the rate con- temporaneously in force to the longer distance.^^ §415. Protest by Shipper or Consignee against Payment of Excessive Freight Charges when Demanded by Car- rier not a Necessary Prerequisite to Recovery of Reparation for Damages. Proceedings for reparation before the Commission for indem- nitory damages are purely statutory and correspond to actions at law sounding in tort. Bouvier defines "reparation" as "Damages for an injury; amends for a tort." If an injury is sustained on account of a violation of law, the proceeding is in its nature ex delicto, and therefore carries with it none of the features or incidents of an action ex contractu. In the very nature of the thing no protest is necessary where an in- jury is inflicted by the commission of a tort. The violation of the law produces the injury and completes the offense, and the person injured does not have to perform any conditions to entitle him to recover for the damage sustained. 51 Gardner & Clark v. Southern Ry. Co. (1904), 10 I. C. C. R. 342. 52 Osborne v. C. & N. W. Ry. Co. (1891), 48 Fed. Rep. 49; Junod v. C. & N. W. Ry. Co. (1891), 47 Fed. Rep. 290. 53 Board of Trade of Lynchburg et al. v. Old Dominion S. S. et al. (1896), 6 I. C. C. R. 632. 633 DAMAGES AND EEPAKATION. [§ 415 Again, neither the carrier nor shipper can lawfully depart from the published rate. Both are charged with notice of what it is, and are punishable for deviating therefrom. It would be a vain thing to protest. The amount of the rate is fixed in the established schedule, and a penalty is imposed for charging or receiving "a greater or less or different compensation for such transportation of passengers or property. ' ' The law looks to the substance of things and does not require useless forms or ceremonies. The Commission said: "Whatever may have been the rule at common law, the Act to Regulate Commerce prescribes the duty of both carrier and shipper, and it seems to us that — "The contention now made, if adopted, would necessitate the hold- ing that a cause of action in favor of a shipper arose from the failure of the carrier to make an agreement, when, if the agreement had been made, both the carrier and the shipper would have been guilty of a criminal offense and the agreement would have been so absolutely void •as to be impossible of enforcement. s* "Moreover, in view of the necessary relation between the carrier and shipper, the dependence in modern business life of the latter upon the former, the right and duty of the carrier in the first instance to fix its charges, its obligation to adhere to the same until altered in the manner prescribed by law, and its right to enforce such changes by retaining possession of the freight transported or to demand payment of the freight charges as a prerequisite to the transportation, the parties are not upon an equal footing — a condition, even at common law, necessary to sustain the requirements of a protest and to nega- tive the idea of voluntary payment. It is also manifest that to sustain this contention would be to open the way to the grossest discriminations, to prevent which is one of the leading purposes of the Act to Regulate Commerce. "°^ "We have already held that protest by the shipper or con- signee against the payment of the lawfully established freight rate is not a necessary prerequisite to the recovery of damages resulting from an unreasonable charge and we adhere to this conclusion. ' '^® 54 T. & P. Ry. Co. V. Abilene Cotton Oil Co., 204 U. S. 426, 445, 51 L. ed. 553, 27 Sup. Ct. 350. 55 Southern Pine Lumber Co. v. Southern Ry. Co., 14 I. C. C. R. 195. 56 Baer Bros. v. Mo. Pac. Ry. Co., 13 I. C. C. R. 329; see also Nicola, §§ 416-418] INTERSTATE TRANSPORTATION. 634 § 416. Commission will not Order Reparation for the Purpose of Equalizing Rates. The shipper should give his shipment to the carrier that has at that time the lowest lawfully published applicable rate, and failing to do this, he should not expect the Commission later to authorize refund for the purpose of equalizing the rate of the line to which he gave his business with the lower lawful rate of a competing line which he might have used. The carrier whose lawful transfer rate is higher than that of a competing line has no right to solicit or accept shipment with the understanding or expectation that an order of repa- ration will be sought at the hands of the Commission for the purpose of equalizing to the shipper a rate which he could have secured by giving his shipment to another carrier.^' § 417. Establishment of Through Route for Purpose of Awarding Reparation. The Commission will decline to order the establishment of a through route and joint rate, for which there is no demand, for the purpose of awarding reparation upon a shipment that moved on local rates.^^ §418. Claim for Damages cannot be Based on an Unlawful Privilege. A shipper cannot be deprived through a carrier's negligence of any lawful privilege offered by another carrier, but such privilege must itself be not only one which the carrier may law- fully allow, but it must also be duly established and filed with the Commission.^' Reparation based on breach of contract for a privilege which stone & Meyers Co. v. L. & N. R. R. Co., 14 I. C. C. R. 199; Pennsyl- vania Rd. Co. V. International Coal Mining Co. (1909), 173 Fed. Rep. 1. 57 Swift & Co. V. C. & A. Rd. Co. (1909), 16 I. C. C. R. 426. 58 Poor Grain Co. v. C. B. & Q. Ry. Co. et al. (1907), 12 I. C. 0. R. 469. 59 Kile & Morgan Co. v. Deepwater Ry. Co. et al. (1909), 15 I. C. C. R. 235, predicated on Folmer & Co. v. G. N. Ry. Co. et al., 15 I. C. C. R. 33. 625 DAMAGES AND KEPAKATION. [§§ 419-431 was not mentioned in the tariffs was denied the shipper be- cause its allowance without publication was in violation of law.'" A carrier is not responsible in damages for failure to per- form a contract which is in violation of the Act.^^ § 419. Refund of Overcharge on Shipment to Foreign Country Adjacenit. An overcharge was collected on a shipment of tobacco to a point in Mexico. On application of the American carriers, in which the Mexican lines refused to join: Held, That the American lines might refund such part of the total overcharge as their divisions of the through rate bear to the entire through rate.*2 §420. Refund where there is a Clerical Error in the Tariff Resulting in Higher Rate. A railroad company admitted that the insertion of a certain rate in its tariffs was the result of a clerical error, and the rate was later reduced. On claim of shipper for reparation the Commission granted the defendant authority to refund to the complainant the difference between the rate charged and the subsequent reduced rate.^^ § 421. Where Rates have been Voluntarily Reduced Commis- sion wiU not Award Reparation as a matter of Course. "When carriers have, of their own volition, made a reduction in rates, it is not the practice of the Commission to award repa- ration as a matter of course on all shipments made previous to the reduction. Such a policy would operate as the strongest possible deter- ment to the-voluntary decrease of rates.** A voluntary reduction of a rate by a carrier creates no pre- 80 Shiel & Co. v. 111. Cent. Rd. Co. et al., 12 I. C. C. R. 211. 61 1. C. C. V. C. & O. Ry. Co. et al. (1904), 128 Fed. Rep. 59. 82 Rule 126, Coil. Rul. Bui. No. 4 (Dec. 8, 1908). 63 Holcomb-Hayes Co. v. 111. Cent. Rd. Co. (1907), 12 I. C. C. R. 128. 84Piiant V. A. T. & S. P. Ry. Co. et al., 15 I. C. C. R. 178, citing Foster Lumber Co. v. A. T. & S. F. Ry. Co., 15 I. C. C. R. 56. Eegulation — 40. § 433] INTERSTATE TEANSPOETATION. 636 sumption of liability for reparation on shipments, under the rate as it existed before the reduction.*^ In Foster Lumber Co. v. A., T. <& S. F. By. Co. et al.,'"' the Commission, per Lane, Commissioner^ said: "It must be ap- parent that it is to the interest of the shipping public in no wise to embarrass carriers in decreasing rates when they think such decrease equitable. Under existing standards, aU will admit that there can be a wide divergence of opinion as to what a reiasonable rate between two points may be, and any policy pursued by this Commission tending to make it burdensome to the carriers to reduce a rate would in the end work a hard- ship to the shippers. For these reasons it would appear un- wise for the Commission to adopt a policy by which, upon the voluntary reduction of a rate, a shipper who had previously paid the higher rate should recover as damages whatever dif- ference there might be between the rate which he was com- pelled to pay and the rate newly established by the railroad, where application had not been made either to the railroad or to the Commission for a reduction of the rate prior to the time at which the railroad itself made such reduction and where it does not clearly appear that the rate was at the time •unreasonable. The presumption does not arise because a re- duction is made by a railroad that the rate previously existing was unreasonable under the conditions and circumstances then obtaining. Any other theory would compel us to the absurd conclusion that for an indeterminate period, perhaps barred only by the statute of limitation within the Act, a shipper would be entitled to a progressive series of awards of repara- tion depending upon the number of reductions which the rail- road made." § 422. Commission wiU not Order Reparation where its EfTect will be to make a Reconsigning Privilege Retroactive. The Commission has consistently held in the past that it 65Diehl, etc., v. C. M. & St. P. Ry. Co. et al. (1909), 16 I. C. C. R. 190; Ottumwa Bridge Co. v. C. M. & St. P. Ry. Co.' et al., 14 I. C. C. R. 121. 00 Foster Lumber Co. v. A. T. & S. F. Ry. Co. et al. (1909), 15 I. C. C. R. 56, affirmed Foster Lumber Co. v. G. C. & S. F. Ry. Co. (1909), 17 I. C. C. R. 385. 637 DAMAGES AND EEPAEATION. [§§433,424 could not with propriety make a reconsignment privilege re- troactive in practical effect by ordering reparation on ship- ments made at a time when the same was not available, the basis of such reparation being the nonavailability of such privi- lege at the time shipments moved and the subsequent publica- tion of the same. It seems clear that the privilege as published in tariffs in effect at the time the shipment in question moved was not applicable thereon because of one of the essential con- ditions under which that privilege was to be had, to wit, that the reconsignments should be accomplished within seventy-two hours after arrival of the shipment at first destination, was not met. The Commission stated that it was not convinced that the carriers are subject to a penalty for failure to notify consignor of refusal of the shipment at destination by con- signee in time to admit of the reconsignment to a new destina- tion before the expiration of seventy-two hours time limit after the completion of the transportation service contemplated un- der the original contract of shipment. ''' § 423. Shipper cannot Recover on Contract Bate different from Published Bate. A contract made between a carrier and a shipper for a rate lower than the published through rate is not binding, and its violation furnishes no ground for redress under the Act to Regulate Commerce. °^ § 424. Damages Accruing Account Detention of Goods until Published Rate is Paid by Consignee. Where a shipper has obtained transportation of his goods between interstate points at a rate specified in the bill of lading which is less than the published tariff rate, such shipper, whether or not he knew that the rate stated in the bill of lad- ing was less than the published rate, is not entitled to damages 6T Sunnyside Coal Mining Co. v. D. & R. G. R. R. Co. et al., 16 I. C. C. R. 558. 68 Ames-Brooks Co. v. Rutland Rd. Co. et al., 16 I. C. C. R. 479; Gulf C. & S. F. R. R. Co. V. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802; T. & P. Ry. Co. v. Mugg, 202 TJ. S. 242, 50 L. ed. 1011, 26 Sup. Ct. 628; Poor Grain Co. v. C. B. & Q. Ry. Co. et al. (1907), 12 I. C. C. R. 418. § 425] INTERSTATE TEANSPOETATION. 628 for detention of his goods, where delivery was refused because the published rate had not been tendered.^' § 425. Where Damages Eesult to the Shipper on account of Failure of the Carrier to Post Rate Schedules. Whether by failure to post an established schedule a carrier becomes subject to penalties provided in the Act to Eegulate Commerce, or whether, if damages are occasioned to a shipper by such omission, a right to recover on that ground alone would obtain, seems to have never been directly decided by the Courts. The Commission, however, in denying reparation in the case of Pueblo Transportation Association v. Southern Pacific Co.,'"' stated : "The Act to Regulate Commerce authorizes the Commission to condemn an unreasonable rate, to prescribe a rate to be applied in lieu thereof and to award damages under the rate, so condemned; but in all proceedings before the Commission, both formal and informal, the essential prerequisite to any award of damages is the condemnation of a rate, rule, or prac- tice as unreasonable and the establishment in lawful tariff pub- lications of the rate, rule, or practice that is made the basis of such award. "It is unfortunate that additional expense should come to shippers because of errors on part of agents of carriers, but the relations between a shipper and a common carrier are so different from the relations between private business enter- prises that a somewhat different rule must apply ; otherwise the underlying principles of the Act to Eegulate Commerce would be seriously impaired, the purposes of the Act would be de- feated, and the very discriminations which it condemns would be sanctioned. "To authorize refund in this ease would be to authorize the carriers to receive and the shippers to pay charges less than 69 T. & P. Ry. Co. V. Mugg, 202 U. S. 242; 26 Sup. Ct. Rep. 628; 50 L. ed. 1011. 70 Pueblo Transportation Co. v. Southern Pacific Co. (1908), 14 I. C. C. R. 82. 639 DAMAGES AND EEPAKATION. [§ 436 those stated in the lawfully published tariff in effect at the time, and that without any allegation, admission or finding that the basis of those charges was unreasonable and unjust. It would permit the carrier by its own Act to effect a departure from the terms of its lawful tariff. It would be simply to authorize refund because of admitted error on part of the car- riers' agents in not posting said tariff at stations thirty days before its effective date. "We are not to be understood as intimating that neglect to post tariffs or willful failure so to do can with impunity be resorted to by carriers. "It is an unpleasant duty to deny such a request as this and thus prevent the shippers from receiving refunds which the carrier is willing to pay, but when the issuance of such authority would be in contravention of the terms or purposes of the law or would establish a precedent which would make toward defeat of such purposes or seriously embarrass efforts to administer the law according to its terms and full spirit, it is clearly our duty to decline." § 426. Liability of Carriers for Misrouting Shipments and Reparation therefor. Tf A. Whbee no Specific Instructions aeb given by the Shipper. If a carrier in the absence of positive instructions from the shipper, routes a car via an indirect and expensive line instead of the direct and cheaper route, so as to burden the shipper with needless expense, such action would be prima facie unjust and unreasonable, and without justification would constitute a fair basis for an order of reparation. '^^ Where in the absence of specific routing instructions from the shipper, the carrier by disregarding its duty to forward the shipment via the cheapest reasonable available route, causes a higher rate to result, it is liable to the shipper for such increased rate.''^ Ti Dewey Bros. v. B. & O. Rd. Co. et al. (1905), 11 I. C. C. R. 481; Poor Grain Co. v. C. B. & Q. Ry. Co. (1907), 12 I. C. C. R. 418. 72 Henderson Lumber Co. v. K. C. Ry. Co. et al. (1909), 16 I. C. O. § 486] INTERSTATE TKANSPOETATION. 630 Where a carrier without any instructions from the shipper sends a ear via a more expensive route, such action is prima facie without justification and constitutes a fair basis for rep- aration.''' Damage resulting to a shipper from a disregard of the obli- gation of the carrier, in the absence of routing instructions from the shipper to the contrary to forward shipments via the reasonable and practicable route over which the lowest charge for the transportation applies, can only be repaired by repara- tion to the extent of the difference between the higher rate applied over the line via which the trafSe improperly moved and the lower rate which would have been applied had the freight been properly forwarded.'* This is a rule of obvious propriety.''^ 1[B. Wheee Caeeiee Diseegaeds Shippee's Insteuctions. If a carrier contrary to a shipper's instructions, forwards ears via a more expensive route, so as to burden the shipper with needless expense, such action would be prima facie unjust and unreasonable, and without justification would constitute a fair basis for an order of reparation.'* Where a carrier unnecessarily diverts a shipment enroute, without the knowledge or consent of the shipper, the carrier is liable to an award of reparation for damages sustained as a result of such diversion." ly C. The Caeeiee Eesponsible foe Miseouting is the only ONE THAT SHOULD MaKE EePAEATION. Where a shipment has been misrouted, in consequence of R. 129; Thatcher Mfg. Co. v. N. Y. C. & H. R. Rd. Co. et al. (1909), 16 I. C. C. R. 126. 73 Poor Grain Co. v. C. B. & Q. Ry. Co., 12 I. C. C. R. 418; Pankey V. B. & O. R. Co., 3 I. C. C. R. 658; 3 I. C. R. 33, cited and approved. 74 Hennepin Paper Co. v. Northern Pacific Ry. Co. et al. (1907), 12 I. C. C. R. 535; Washington Broom & "W. W. Co. v. C. R. I. & P. Ry. Co. (1909), 15 I. C. C. R. 219; Flaccus Glass Co. v. C. C. C. & St. L. Ry. Co. et al. (1908), 14 I. C. C. R. 333. 75 See note 58, supra. 78 See note 71, supra. 77-Carstens Packing Co. v. O. R. & N. Co. et al. (1909), 15 I. C. C R. 482. 631 DAMAGES AND EBPAEATION. [§ 436 which the damages result to the shipper, only the carrier re- sponsible for such misrouting should be required to make repa- ration; as to require reparation in such a case is only to re- quire the carrier to make just compensation for injury result- ing from failure to perform its duty; but to require or permit any other carrier than the one responsible for the misrouting to participate in the making of such reparation would be to permit or require departure from established rates, which is expressly forbidden by law.'' Moreover, if all the roads composing a through line over which misrouted traffic moves could be lawfully permitted to contribute to such reparation as may be necessary to protect the shipper in his rights, there would be an ever-present temptation and effective method for misrouting of traffic for competitive reasons without the previous establishment of competitive rates as contemplated by law for the full informa- tion and free use of all shippers without discrimination^' Before delivering his merchandise to a carrier, a shipper was quoted a rate of 16 cents via all available routes between the points of origin and destination. Bills of lading were issued showing that rate, and, at the shipper's request, also showing routing via a named junction. Before delivery was made at destination it was discovered that the 16-cent rate did not apply over that route, and the delivering carrier there- fore assessed the sum of the locals through that junction, amounting to 65 cents per 100 pounds. Held, That as the rate quoted was inserted in the bill of lading, shipment ought to have been moved over a route carrying that rate.*" Where a shipper has given routing instructions which a car- rier fails to transmit to its connection, the carrier so failing shall be responsible for all additional transportation charges resulting from a misrouting of the shipment.'^ T8 See note 74, supra. T9 Hennepin Paper Co. v. Northern Pac. Ry. Co., 12 I. C. C. R. 535 (1907). 80 Rule 186,- Con. Rul. Bui. No. 4 (June 8, 1909). 81 Rule 190, Con. Rul. Bui. No. 4 (June 22, 1909). § 426] INTERSTATE TRAN'SPOETATION'. 633 T[D. "Where Initial Carrier is Eesponsible for MiSEOUTING. An initial carrier delivered a shipment to a connecting line, but did not give it any routing instructions beyond noting on the waybill the through rate via the cheaper of two available routes. The connecting carrier sent it over the route yielding it the greater revenue, but carrying the higher through rate ; Held, That the initial carrier is liable for the misrouting.*^ The initial carrier, disregarding instructions to route a shipment through a particular junction, moved it to destina- tion over its own lines, the rates over the two routes being the same. Although the shipment was consigned to a private per- son, it was in fact the property of the connecting line, which therefore could have hauled it free of charge from the junction point to destination, notwithstanding the fact that the initial carrier had no notice and was not chargeable with notice that it was company material: Held, That the initial line is liable for additional charges on the ground that a carrier exercising the right to dictate intermediate routing must make its elec- tion at the time it accepts the shipment, and that if the carrier accepts the shipment with specific instructions it must so move the traffic or bear the damages arising out of its departure from the instructions.*' "Where the initial carrier misroutes a shipment, in conse- quence of which the shipper is compelled to pay a higher rate, such carrier will be required to make reparation to the extent of the difference between the higher rate applied and the lower rate which would have been applied had the freight been properly forwarded. To require this is ojaly to require the carrier to make just compensation for injury resulting from failure to perform its duty.** 82 Rule 137, Con. Rul. Bui. No. 4. 83 Rule 143, Con. Rul. Bui. No. 4. 84 Hennepin Paper Co. v. Northern Pacific Ry. Co. et al. (1907), 12 I. C. C. R. 535; Pankey v. R. & D. Co. et al. (1890), 3 I. C. C. R. 658; 3 I. C. R. 33; Kile & Morgan Co. v. Deepwater Ry. Co., 15 I. C. C. R. 235. 633 DAMAGES AND EEPAEATION. [§ 426 If E. MiSEOUTING 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 the misrouting carrier may be au- thorized to make refund account of its error in misrouting shipments, and that carrier which participated in the trans- portation without lawful tariff applicable thereto should be dealt with through the Department of Prosecutions.*^ T[ F. Eefund op Deatage Chaeges Caused by Miseodting. Where a shipment was routed contrary to the express direc- tions of the shipper and the consignee was compelled to move the shipment by dray from the station of delivering carrier to the destination to which it would have been switched if properly routed, the carrier may, under the particular circum- stances of the case, be authorized by the Commission to refund to the shipper the reasonable actual cost of the drayage.*' T[ G. Caeriees Ebimbuesing Connecting Lines foe MiSEOUTING. The Commission has held that if a carrier adjust a claim for misrouting and later learns that the responsibility for such misrouting actually rests upon another carrier, such other car- rier may voluntarily reimburse the carrier that made the pay- ment in full amount of such claim, or the matter may, if neces- sary, be referred to the Commission for determination of the question of which carrier is responsible for the error.*'' The Commission has stated that under this rule any carrier, whether it be the initial or a connecting line that misroutes a shipment, thereby causing additional transportation charges, may, upon admitting its error, pay the damages arising there- from, provided the whole burden is borne by it without par- ticipation therein by its connections. But that the admission must be in good faith with respect to the particular cases of 85 Rule 90, Con. Rul. Bui. No. 4. 86 Rule 25, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 87 Rule 214, Con. Rul. Bui. No. 4 (Marcli 18, 1907). § 426] INTBESTATB TEANSPOETATION. 634 misrouting. The Commission further held that it will not rec- ognize the validity of any agreement between two or more carriers by which one assumes the responsibility for misrout- ing in all cases.^' An initial carrier misrouted a shipment, resulting in addi- tional transportation charges, for which it admitted responsi- bility and made settlement in accordance with the above rules. Subsequently the connecting line over which the shipment moved became a party to a tariff naming the same rate that applied at the time of the movement over another route. There- upon the initial carrier and the connecting line requested per- mission to divide the misrouting overcharge : Held, That the petition must be denied upon the ground that such a course would amount to the retroactive application of a published rate.*' 1[ H. Ebfund of Ovbrohaege Caused by Miseouting THROUGH EeEOE OP CaEEIER'S AgENT. If a carrier's agent misroutes a shipment and thus causes extra expense to the shipper over and above the lawful charges via another available route of the class designated by shipper — that is, all-rail or rail-and-water — over which such agent had applicable rates which he could lawfully use, and responsibility for agent's error is admitted by the carrier, such carrier may, as to shipments moving subsequent to March 18, 1907, adjust the overcharge so caused by refunding to shipper the difference between the lawful charges via the route over which the shipment moves and what would have been the lawful charges on same shipment at the same time via the cheaper available route of the class designated which could have been lawfully used. Such refund must in no case exceed the actual difference between the lawful charges via the different routes as specified, and must in every instance be paid in full by the carrier whose agent caused such over- charge and must not be shared in by or divided with any other carrier, corporation, firm, or person. This authority is lim- 88 Rule 198, Con. Rul. Bui. No. 4 (June 21, 1909). 89 Rule 205, Con. Rul. Bui. No. 4 (June 29, 1909). 635 DAMAGES AND REPARATION. [§ 426 ited strictly to the cases specified and to the circumstances recited, and does not extend or apply to instances in which soliciting or commercial agents of carriers induce shippers to route shipments over a pajticular line via which a higher rate obtains than is effective via some other line.°° The rule is intended to apply to cases in which the agents who bill or actually forward or divert shipments through error or oversight send the shipments via routes that are more expensive than those directed by the shippers or available in the absence of routing instructions by shippers. It must not be used in any case or in any way to "meet" or "protect" a rate via another route or gateway via which the adjusting carrier has not in its tariffs at the time the shipment moves rates which are available and lawfully applicable thereto, nor as a means or device by which to evade tariff rates or to meet the rate of a competing line or route, nor to relieve shipper from responsibility for his own routing instructions.'^ The prerequisites to any refund under this rule are admis- sion by carrier of responsibility for its agent's error in mis- routing the shipment, and such carrier's willingness to bear the extra expense so caused, without recourse upon any other carrier for any part thereof. If, therefore, the error is dis- covered before the shipment has been delivered to consignee or before charges demanded upon same have been paid, the carrier acknowledging responsibility for the error may author- ize the delivering carrier to deliver shipment upon payment of the charges that would have applied but for the misrouting and to bill upon it for the extra charge; or, if the shipment has been delivered undercharged before the error is discov- ered, the carrier that acknowledged responsibility for the error may pay the undercharge to the carrier that delivered the shipment instead of requiring it to collect the undercharge from shipper to be refunded to shipper."^ The Commission has said:'^ "Shippers must bear in mind that there is a limit beyond which an agent of a carrier could 90 See note 87, supra. 91 Ibid. 92 Ibid. §§427,428] INTEKSTATE TKANSPOETATION. 636 reasonably be expected to know as to terminal delivery or local rates at distant points and on lines of distant roads to or with wbieh he has no specific joint through rates. Consignors and consignees should co-operate with agents of carriers in avoiding misunderstandings and errors in routing, and must expect to bear some responsibility in connection therewith." § 427. Eeparation for Failure of Carrier to Perform Expedited Service as Agreed in Consideration of Increased Rate. Where a carrier charges and a shipper agrees to pay a higher charge in consideration of special or expedited service and the carrier fails to furnish the service so agreed upon, it cannot lawfully and properly demand the higher compensa- tion, and if such higher charge is collected the shipper is en- titled to reparation at the hands of the Commission.'^ This principle is recognized in contracts between the Fed- eral Government and the railways for fast mail service and by the railways in connection with their excess-fare limited passenger trains. In both instances carriers forfeit a part of their compensation if they fail to make the time agreed upon.°* § 428. Reparation for Damages Account of Unjust Discrimination. . 1[A. Eecovekt eoe Assessment of Discriminatory Charge. "Where a discriminatory freight charge has been exacted of a shipper, reparation may properly be awarded."^ 1[B. Discrimination in Furnishing Cars. Where unjust discrimination is practiced by a carrier against a shipper in the distribution of cars, the difficulty of measuring the actual damage makes adequate reparation, for the injustice done, impossible. The best that can be done is 9s American Fruit Union v. C. N. O. & T. P. Ry. Co. (1907), 12 I. C. C. R. 411. 84 Ibid. 95 City Gas Co. v. B. & O. Rd. Co. (1905), 11 I. C. C. R. 371; Texas Cement Plaster Co. v. St. L. & S. P. Rd. Co. (1907), 12 I. C. C. R. 68. 637 DAMAGES AND EBPAEATION. [§ 438 to estimate as nearly as may be that which may with reason- able certainty be directly charged to such unfair treatment, and for the rest the shipper must suffer, as is always the ease where injustice is done by such discriminations.^'* Discrimination in furnishing ears is rarely a continuing offense which can be discontinued for the future under a gen- eral regulating order from the Commission directing the car- rier to cease and desist therefrom. The remedy, therefore, must generally be found in an order awarding reparation for the injury found to have been done.°' Examples: The defendant during a certain period wrong- fully refused to furnish coal cars, which precluded the com- plainants from taking out of their mine 193 tons of coal which they could have sold at a profit of 50 cents per ton. Held, That the complainants were entitled to reparation in the sum of $96.50.»« During a certain period complainant was compelled to and did refuse to purchase 900 cross-ties which were offered to it on account of defendant's wrongful refusal to provide cars. The ties were afterwards purchased by competitors of the de- fendant and sold at a profit of 7 cents each. Held, That the complainant was entitled to reparation in the sum of $630.'° U C. Measuke of Damages. In an action by a shipper against a railroad company under the Interstate Commerce Act to recover damages because of discrimination in rates made in favor of other shippers be- tween the same terminals, the measure of damages recover- able is the difference between the amount paid by the plaintiff and the amount it would have paid at the lowest rate charged on any shipment carried under substantially the same circum- stances and conditions during the same time, and not the dif- ference between the rates paid by it and the average rate paid by any other shipper.^"" 96 Eaton V. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619. 97 Richmond Elevator Co. v. P. M. Rd. Co. (1905), 10 I. C. C. R. 629. 98 Glade Coal Co. v. B. & O. Rd. Co. (1904), 10 I. C. C. R. 220. 99Paxton Tile Co. v. Det. Southern Rd. Co. (1905), 10 I. C. C. R. 422. 100 See note 65, supra. § 429] INTERSTATE TEANSPOETATION. 638 II D. DlSCBIMINATION MUST BE AcTUAL. Discrimination in fact and not mere intention to discrimi- nate is unlawful under the Act to Regulate Commerce. The offering of a discriminating rate which is never carried into effect cannot be construed as unlawful ; nor can a shipper who is charged a higher rate be said to be injured thereby.^"^ K E. Liability of Connecting Caekiee foe Disceimination Peacticed by Initial Caeeiee. A connecting carrier which takes the cars as they are deliv- ered to it by the initial carrier is not liable for a discrimina- tion in favor of shippers of oil in tank cars and against ship- pers of oils in barrels which may be practiced by the initial carrier merely because such connecting carrier has partici- pated in the adoption of a joint through rate for barrel ship- ments which, in itself, is reasonable, although, by Section 8 of the Act to Regulate Commerce, a carrier which "shall do, cause to be done, or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful," shall be liable to the full amount of the damages sustained by one in- jured thereby.^"^ § 429. Accrued Claims not Invalidated by Subsequent Cancel- lation of Absorption Rule. A tariff providing for the absorption of inbound switching charges on certain traffic also provided that they would not be absorbed when the expense bills therefor were presented more than six months after their date. Within six months after cer- tain switching services had been performed bills therefor were presented, but the carrier refused payment on the ground that during the interval the absorption rule referred to had been canceled: HpM, That the subsequent cancellation could not invalidate a claim already acerued.^"^ 101 Lehigh Valley Rd. Co. v. Rainey et al. (1902), 112 Fed. Rep. 487. loapenn. Refining Co. Ltd. v. W. N. Y. & P. Rd. Co. et al. (1908), 208 U. S. 208; 52 L. ed. 456, 28 Sup. Ct. 268; affirming 137 Fed. Rep. 343, 70 C. C. A. 23. 103 Rule 136, Con. Rul. Bui. No. 4 (Jan. 27, 1909). 639 DAMAGES AND REPARATION. [§§ 430, 431 §430. Damages to Fruit by Delayed Notice of Arrival at Destination. An express company undertook to notify the consignee of the arrival at destination of a shipment of strawberries, but failed for some days to effect notice, partly because of an erro- neous address on a postal card : Held, That the damages re- sulting from the delay was not due to any violation of the Act to Eegulate Commerce, and therefore was not cognizable by the Commission.^"* § 431. Remote or Speculative Damages. Tf A. In General. In an action for reparation the best that can be done is to estimate as nearly as may be that which may with reasonable certainty be charged directly to the unfair treatment al- leged."^ T[ B. Loss OP Employment. Through error of a railroad agent complainants were un- able to use the return coupons of their round-trip special ex- cursion tickets with stopover privileges, but without additional cost were supplied by the carrier with regular limited tickets. Upon complaint filed setting up claim for damages for loss of employment as fruit-pickers which complainants hoped to se- cure at a point where their originial tickets permitted stop- overs; Held, That such damages are altogether too specula^ tive to be accepted either as the basis for an order of the Com- mission or for a judgment in a court of law.^"" 1[ C. Loss OE Profit. Profits, which but for the carrier's wrongful refusal in pro- viding transportation, a shipper might have made by pur- chasing a certain commodity, are too problematic to be al- lowed."^ 104 Rule 127, Con. Rul. Bui. No. 4 (Dec. 8, 1908). 105 Eaton V. C. H. & D. R. Co. (1906). 11 I. C. C. R. 619. 106 Alexander et al. v. C. B. & Q. Rd. Co. et al. (1909), 16 I. C. C. R. 103. 107 Hope Cotton Oil Co. v. T. & P. Ry. Co. (1905), 10 I. C. C. R. 696. § 431] INTERSTATE TRANSPORTATION. 640 Loss of profit based on canceled contracts and avoided sales alleged to have been caused by carrier's unfair treatment is impossible of determination.^"' TJD. Loss OP Business. Complainant averred that as a result of being unjustly dis- criminated against by the defendant his business had been less per month than it was during the months previous to such period. Held, That as such a result might flow from many causes, it could not fairly be said that such a showing entitled complainant to reparation in that respect.^"' 1[E. Loss OF Peestige; In an action against a carrier for refusal to make delivery of certain carloads of lumber, such refusal being based upon nonpayment of demurrage charges which plaintiff alleged were discriminatory, damages caused to plaintiff's "standing and credit" in the community, because of such nondelivery, are too remote to be recovered.^^" U F. Inability to Harvest Crops. Complainants alleged that because of extortionate freight rates they were compelled to allow a large percentage of ber- ries to remain on the vines unharvested. The Commission Held, That the damages thus suggested were purely specula- tive and not susceptible of legal computation. They are as un- certain and remote as though claimed on the ground that if the transportation rate had been reasonable the complainant would have raised a larger crop, or have purchased and sold at a profit in other markets the crops of neighboring grow- ers. ^^^ 108 Baton V. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619; see also Gallogly & Firestine v. C. H. & D. Ry. Co. (1905), 11 I. C. C. R. 1; Harden & Swarthout v. L. V. R. Co. (1907), 12 I. C. C. R. 193. 109 Rogers & Co. v. P. & R. Ry. Co. (1907), 12 I. C. C. R. 308; Eaton V. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619. 110 Clement v. L. & N. R. Co. (1907), 153 Fed. Rep. 979; Baton v. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619. 111 Penn. v. F. C. & P. R. Co. (1892), 3 I. C. R. 740; 5 I. C. C. R. 97. 641 DAMAGES AND EEPAEATION. [§§ 433-434 § 432. A Passenger Wrongfully Deprived of Benefit of Return Coupon of a Roun,d-Trip Excursion Ticket May Have Reparation. A passenger holding a round-trip ticket on the certificate plan, or a round-trip ticket requiring validation, was, through ignorance or fault of a carrier's agent, deprived of the benefit of the reduced fare on the return journey and was compelled to purchase a full-fare ticket. The Commission in awarding reparation authorized carriers in such cases without a special permissive order to refund to the passenger the difference be- tween the total fare paid by him and the reduced rate which he would have enjoyed except for the carrier's error; and fur- ther held that the carrier at fault must bear the full burden without recourse upon any other road participating in the car- riage. ^^^ § 433. Responsibility of Carrier for Failure to Furnish Proper Cars to Which Rates Apply. Certain rates on coal published by a carrier to points on a connecting line were expressly limited to shipments "loaded in box or stock cars only," because the connection refused to handle coal shipments in open cars. Upon demand for cars for a shipment to such points the carrier, instead of furnishing box cars to which the rate applied, furnished coal cars, which carried a higher rate : Held, That the carrier having issued the tariff itself, and having furnished cars that did not comply with the tariff' requirements, was responsible for the excess charges. '^^^.^ §434. Where Freight is Unloaded by Carrier's Agent in Depot by Mistake Instead of Switching Car to Con- signee's Siding. Carrier's agent unloaded into the freight house a carload shipment which should have been delivered without additional cost at the warehouse of the consignees. The consignees ac- cepted delivery at the freight house, drayed the shipment to 112 Rule 167, Con. Rul. Bui. No. 4 (April 13, 1909). 112a Rule 120, Con. Rul. Bui. No. 4 (Nov. 13, 1908). Eegulation — 41. § 435] INTERSTATE TKANSPOETATION. 642 their warehouse, and demanded from the carrier refund of sum equal to the cost of such drayage ; Held, That consignees should have insisted upon the proper delivery provided for in carrier's tariff, and that the Commission is without authority to order or sanction such refund.^^^ § 435. Liability of Receiving Carrier for Loss or Damage on Interstate Traffic. II A. Provision of the Statute. The Act to Regulate Commerce provides:"* "That any common carrier, railroad, or transportation company receiv- ing property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed." 11 B. Ebmedies under Law Existing at Passage of Act not Barred. The Act provides that nothing in the above section shall de- prive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.^^^ This leaves a shipper free to resort to the law of a State applicable to his contract. ^^^ T[ C. . Initial Carrier may have Eecourse upon Carrier Eesponsiblb for Loss OR Damage. The statute provides:"' "That the common carrier, rail- 113 Crosby & Meyers v. Goodrich Transit Co. et al. (1909), 17 I. C. C. R. 175. 11* Act to Regulate Commerce. Section 20. This provision is com- monly called the "Carmack Amendment" to the Hepburn Act of June 29, 1906. 115 Ibid. iioLatta V. C. St. P. M. & 0. Ry. Co. (1909), 172 Fed. Rep. 850. 117 See note 114, supra. 643 DAMAGES AND REPARATION. [§§ 436-438 road, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any re- ceipt, judgment, or transcript thereof." T[ D. Constitutionality of the Statute. See Section S15, ante. § 436. Assignability of Overcharge Claims. Claims for damages to recover overcharges, under Sections 8 and 9 of the Interstate Commerce Law, constitute property rights, which may be assigned so as to convey the beneficial interest therein to the assignee. The assignment thereof is not prohibited by any of the provisions of the Interstate Com- merce Act, nor is it forbidden by any considerations of public policy.^^* § 437. Benefit of Beparatiou Order Extends to All Like Shipments. No carrier may pay any refund from its published tariff charges save with the specific authority of the Commission. When an informal or formal reparation order has been made by the Commission the principle upon which it is based ex- tends to all like shipments, but no refunds may be made by the carrier upon such shipments except upon specific authority from the Commission.^"^^ § 438. Delivering Carrier must Investigate before Pajdngf Claims. A delivering carrier cannot accept the authority of a con- necting line and thus shield itself from responsibility in pay- ing claims, but must investigate and ascertain the lawful rates. 118 Edmunds v. Ills. Cent. R. Co. (1897), 80 Fed. Rep. 78. 119 Rule 49, Con. Rul. Bui. No. 4 (March 10, 1908). §§ 439-441] INTERSTATE TEANSPOKTATION. 644 and allow the claims or not upon the basis of its own investi- gations.^^" § 439. Adjustment of Claims on Presentation. It is not a proper practice for railroad companies to adjust claims immediately on presentation and without investigation. The fact that shippers may give a bond to secure repayment in case, upon subsequent examination, the claims prove to have been improperly adjusted does not justify the practice.^^^ § 440. Liability of Members of Traffic Association for Un- reasonable Bates Charged. If railway companies engaged in the transportation of traffic from one territory voluntarily enter into an association with railway companies engaged in the transportation of similar traffic from another territory to a common market, for the pur- pose, among others, of a mutual adjustment of rates over their respective lines, and in pursuance of this purpose as members of such association agree to and maintain rates over their own lines higher than are reasonable and the relation thus estab- lished between the rates from the two territories, respectively, is unjustly prejudicial to the former and unduly preferential to the latter, this is a violation of the first paragraph of Sec- tion 3 of the Act to Kegulate Commerce, for which, whether or not there be a joint liability under said Act of the two sys- tems of carriers, there is at least a several liability on the part of those serving the territory injuriously affected.^^^ § 441. Parties Entitled to Separation. The Commission is confined in the making of awards for reparation to the injury or damage sustained by those who are the real and substantial parties in interest in the transaction in which such transportation charges have been assessed. The reparation is due to the person who has been required to pay 120 Rule 15, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 121 Rule 68, Con. Rul. Bui. No. 4 (May 4, 1908). 122 Freight Bureau of Cincinnati Chamber of Commerce v. C. N. O. & T. P. Ry. Co. (1894), 4 I. C. R. 592; 6 I. C. C. R. 195. 645 DAMAGES AND EBPAEATION. [§§ 443^46 the excessive charges as the price of transportation and who was the true owner of the property transported during the period of transportation."^ § 442. Limitation of Action. See Section 790, post. § 443. Parties to Action for Damages. See Section 78Jf, Paragraph A, post. § 444. Rules of Procedure before the Commission. See Section 796, post. § 445. Order of Commission Awarding Reparation. See Section 789, post. § 446. Damages Arising from Misquotation of Rates. IJA. Shipper cannot Eecovee Damages for Misquotation OF Eates. Under the present law, regardless of the rate quoted, the published tariff rate must be paid by the shipper and actually collected by the carrier.^^* It is unfortunate that shippers should be misled to their in- jury by erroneous information furnished by representatives of carriers as to the rate in effect. It is, of course, the duty of carriers ' agents to furnish correct information as to the proper application of the lawfully established rates. However, the law requires that tariffs shall be open to public inspection, and therefore shippers are themselves charged with notice of the rate lawfully applicable. The Commission cannot consider an erroneous rate quotation made by an agent of a carrier as the basis for an award of reparation to a shipper, who thereby suffers damage. Collusion between the carrier and a shipper, which it desired to favor, for protection for other than the tariff rates would be rendered too easy of accomplishment. 123 Nicola, Stone & Meyers v. L. & N. R. R. Co., 14 I. C. C. R. 201. 1 24 See note 9, supra. § 446] INTERSTATE TKANSPOETATION. 646 In such, case the carrier could protect any rate which it might desire to apply by simply quoting it to the favored shipper, and thus the integrity of the published tariffs (a strict ob- servance of which is required by law in order to prevent un- just discriminations) would be constantly violated.^^^ 1[ B. Additional Legislation Eecommbnded. The Interstate Commerce Commission in a recent report to Congress said:^^' "The Act to Regulate Commerce requires carriers to collect their published rates, under severe penalty, and the Supreme Court of the United States has held that this must be done even though the carrier has quoted to the shipper a different rate, in good faith, upon which the shipper has acted. ' ' The practical hardship of this rule is illustrated by the last case in which it was applied by that court.^^°* Here the plaintiff applied for a rate on coal from a point in Arkansas to a point in Texas and was quoted a rate of $1.25 upon one kind and $1.50 upon another. Upon the strength of this quo- tation he made sale of three carloads for a delivered price at the Texas point. In fact, the published rate was $2.75 upon one kind and $2.85 upon the other, and the shipper was obliged to pay upon the arrival of the coal in Texas $140.18 more than would have been due under the rate quoted. This converted the transaction from a profit into a loss, and his suit was to recover damages thus occasioned. The Court, as already said, held that no recovery could be had. "The statute requires carriers to post for public inspection their tariffs at all stations where freight is received by them for transportation. The theory of the Act is that the shipper can at all times by reference to these schedules ascertain for himself the rate, and if this were so there would be no hard- ship in requiring him to know what that rate was. In practice all this is quite different. The tariffs of railways are very voluminous. 125 Forster Brothers Co. v. D. S. S. & A. Ry. Co., 14 I. C. C. 232. 126 Twenty-Second Annual Report of I. C. C. (1908). 126a See note 69, supra. 647 DAMAGES AND EEPAEATION. [§§447,448 "It has been found practically impossible to comply with the literal requirement of the statute as to posting. The present regulations of the .Commission permit carriers in most cases to keep on file in their offices at their various stations tariffs showing their outbound rates, but the construction of these schedules is necessarily such that the ordinary shippers without special experience cannot, in the great majority of in- stances, ascertain for himself from an inspection of the tariffs what the rates are. He must rely upon the statement of the railroad agent. The presumption of the law that he himself knows or . may know the rate is not in accordance with the fact. "The Commission feels that to require the shipper to ascer- tain for himself at his peril the rate imposed upon him is an undue burden. The railway should know what its established charges are, and may fairly be required to state in writing, when a written request is made by the shipper, the rate which it has published and maintains in force. We call special atten- tion to this matter as one of immediate and general concern, which discloses the need of appropriate remedy, and urgently request that a suitable measure be promptly enacted." § 447. Change of Rate while Shipment was on the Oceian. A shipment of linoleum left Hamburg on July 4, at which time there was in effect a published through rate to San Fran- cisco via New Orleans of $1.10. When the shipment reached New Orleans the through rate had been canceled, leaving in effect a local rate from New Orleans to San Francisco of 90 cents. Upon application for permission to refund down to the $1.10 through rate: Held, That the application must be de- nied.i" § 448. Remedy for Wrongs which Occurred prior to the Act. The Act to Regulate Commerce does not afford a remedy for transactions which occurred before it took effect.^^' 127 Rule 111, Con. Rul. Bui. No. 4 (Nov. 12, 1908). lasottinger v. Southern Pacific Co. (1887), 1 I. C. R. 607; 1 I. C. C. R. 144. § 448] INTERSTATE TKANSPOKTATION. 648 The Interstate Commerce Commission has no authority to call a railroad company to account for any wrong of which such company may have been guilty prior to April 5, 3887, when the Act went into effect.^-® § 448. Special Reparation on Informal Complaints. See Section 776, post. Paragraph G. i29Holbrook et al. v. St. P. M. & M. P. Co. (1887), 1 I. C. R. 323. CHAPTER XXIX. TRANSPORTATION OF EXPLOSIVES. Section 450. Unlawful to Transport Explosives with Passengers. 451. Unlawful to Transport Liquid Nitroglycerin, Fulminate in Bulk, or other Like Explosives. 452. Excepted Classes of Explosives that may be Lawfully Transported with Passengers. 453. Interstate Commerce Commission Authorized to Formulate Regu- lations for the Safe Transportation of Explosives. 454. Packages Containing Explosives must be Marked. 455. Concealing Character of Packages containing Explosives Declared Unlawful. 456. Penalties for Violations of the Law. 457. Regulations for the Transportation of Explosives. § 450. Unlawful to Transport Explosives with Passengers. The statute provides that it shall be unlawful to transport, carry, or convey, any dynamite, gunpovsrder, or other explosive, between a place in a foreign country and a place within or subject to the jurisdiction of the United States, or between a place, in any State, Territory, or District of the United States, or place noneontignous to but subject to the jurisdic- tion thereof and a place in any other State, Territory, or Dis- trict of the United States or place noncontiguous to but sub- ject to the jurisdiction thereof, on any vessel or vehicle of any description operated by a common carrier, which vessel or vehicle is carrying passengers for hire.^ § 451. Unlawful to Transport Liquid Nitroglycerin, Fulminate in Bulk, or other like Explosives. The statute makes it unlawful to transport, carry, or convey, liquid nitroglycerin, fulminate in bulk in dry condition, or other like explosive, between a place in a foreign country 1 Transportation of Explosives Act March 4, 1909, Section 232. 649 §§ 453, 453] INTEaSTATE TRANSPORTATION. 650 and a place within or subject to the jurisdiction of the United States or between a place in one State, Territory, or District of the United States, or a place noncontiguous to but subject to the jurisdiction thereof, and a place in any other State, Territory or District of the United States, or place noncon- tiguous to but subject to the jurisdiction thereof, on any vessel or vehicle of any description operated by a common carrier in the transportation of passengers or articles of commerce by land or water.^ § 452. Excepted Classes of Explosives that may be Lawfully Transported with Passengers. The statute provides that it shall be lawful to transport on any vessel or vehicles, as stated in the preceding section, small-arms, ammunition in any quantity, and such fuses, tor- pedoes, rockets, or other signal devices, as may be essential to promote safety in operation, and properly packed and marked samples of explosives for laboratory examination, not exceeding a net weight of one-half pound each and not ex- ceeding twenty samples at one time in a single vessel or ve- hicle; but provides that such samples shall not be carried in that part of a vessel or vehicle which is intended for the trans- portation of passengers for hire. The statute further provides that nothing in this section shall be construed to prevent the transportation of military or naval forces with their accom- panying munitions of war on passenger equipped vessels or vehicles.^ § 453. Interstate Commerce Commission Authorized to Formu- late Regulations for the Safe Transportation of Explosives. The statute authorizes the Interstate Commerce Commission to formulate regulations for the safe transportation of explo- sives, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives by land.* The statute further provides that the Commission of its own motion, or upon application made by any interested 2 Explosives Act. Section 234. 3 See note 1, supra. * Explosives Act. Section 233. 651 TRANSPORTATION OF EXPLOSIVES. [§§454,455 party, may make charges or modifications in such regulations, made desirable by new information or altered conditions.^ The law states that such regulations shall be in accord with the best known practicable means for securing safety in transit, covering the packing, marking, loading, handling while in tran- sit, and the precautions necessary to determine whether the material when offered is in proper condition to transport ; that such regulations, as well as all changes or modifications thereof, shall take effect ninety days after their formulation and publi- cation by the Commission and shall be in effect until reversed, set aside, or modified.^ In the exercise of the above authority the Commission formu- lated and published on January 15, 1910, a set of rules and regulations covering the transportation of explosives as set forth in Section Ji-Bl, post. § 454. Packages Containing Explosives must be Majrked. The law provides that every package containing explosives or other dangerous articles when presented to a common car- rier for shipment shall be plainly marked on the outside there- of the contents thereof.' § 455. Concealing Cnaracter of Packages Containing . Explosives Declared Unlawful. The statute provides that it shaU be unlawful for any person to deliver, or. cause to be delivered, to any common carrier engaged in interstate or foreign commerce by land or water, for interstate or foreign transportation, or to carry upon any vessel or vehicle engaged in interstate or foreign commerce, any explosive, or other dangerous article, under any false or deceptive marking, description, invoice, shipping order or other declaration, or without informing the agent of such carrier of the true character thereof, at or before the time such de- livery is made.* 5 Explosives Act. Section 233. « Ibid. 7 Explosives Act. Section 235. « See note 7, supra §§ 456, 457] INTERSTATE TRANSPORTATION. 652 §456. Penalties for Violations of the Law. See Section 775, post. § 457. Regulations for the Transportation of Explosives. [The following comprise all the regulations which have heen pre- scribed by the Commission, the paragraphs having been numbered to correspond with the rules and regulations of the American Railway Association.] QENEBAL NOTICE. As the use of certain explosives is essential to various busi- ness activities throughout the country it is the duty of inter- state railroad carriers to transport such explosives under prop- er regulations. It is also the duty of each such carrier to make the prescribed regulations effective and to thoroughly instruct its employes in relation thereto. It is the duty of express companies to transport under proper regulations samples of explosives for laboratory examination, as authorized by Section 232 of the Act of Congress approved March 4, 1909 {see Appen- dix No. 26). When the explosives specified in this section are lawfully carried in an express or baggage car in the presence of an employe of the company, it will not be necessary to placard this car as prescribed herein for a freight car contain- ing similar lading. The Commission will make further provision as' occasion may require for new explosives not included in or covered by the following regulations. GEKEBAL BTTLES. A. Unless specifically authorized by these regulations, ex- plosives must not be packed in the same outside package with each other or with other articles. Explosives, when offered for shipment by rail, must be in proper condition for transpor- tation and must be packed, marked, loaded, stayed, and handled while in transit in accordance with these regulations. All pack- ages of less than carload shipments must also be plainly marked on the outer covering or boxing (outside package) with the name and address of consignee. Empty boxes pre- viously used for high explosives are dangerous and must not be again used for shipments of any character. Empty boxes 663 TRANSPORTATION OF EXPLOSIVES. [§ 457 which have been used for the shipment of other explosives than high explosives must have the old marks thoroughly re- moved before being accepted for the shipment of other articles. Empty metal kegs vrhich have been used for the shipment of black powder not contained in an interior package must not be used for shipment of any explosive. B. Explosives, except such as are forbidden (see pars. 1501 and 1531 to 1536) must be received for transportation by rail- roads engaged in interstate commerce, provided the following regulations are complied with, and provided their method of manufacture and packing, so far as it affects safe transporta- tion, is open to inspection by a duly authorized representative of the initial carrier or of the Bureau for the Safe Transporta- tion of Explosives and Other Dangerous Articles, of the Ameri- can Railway Association. Shipments of explosives that do not comply with these regulations will not be received. Ship- ments offered by the United States Government may be packed, including limitations of weight, as required by its regulations. C. Before any shipment of explosives destined to points be- yond the lines of the initial carrier is accepted from the ship- per, the initial carrier must ascertain that the shipment can go forward via the route designated, and that delivery can be made at destination. To avoid unnecessary delays, arrange- ments must be made to furnish this information promptly to initial carrier. Shipments offered by connecting lines must be received subject to these regulations. TESTS FOB, STRENGTH OF PACKAGE. D. Packages receive their greatest stresses in a direction parallel to the length of the car and must, therefore, be loaded so as to offer their greatest resistance in this direction. Cleats or handles, when prescribed for packages, must be so placed as not to interfere with close packing lengthwise in the car. E. When inexplosive material of equal weight is substi- tuted (sand for a granular explosive, dummy cartridges for high-explosive cartridges), and the outside package is dropped on its end onto a foundation of solid brick or concrete from a height of four feet, the outside package must not open, nor § 457] INTEESTATE TEANSPORTATION. 654 rupture, nor must any portion of the contents escape there- from. F. In addition to standing the test in paragraph B, the de- sign and construction of packages must be such as to prevent the occurrence in individual packages of defects that permit leakage of their contents under the ordinary conditions inci- dent to transportation. The results of experience, gained by an examination of packages on arrival at destination, must be recorded by the Bureau of Explosives, to the end that further use of any particular kind of package, shown by experience to be inefficient, may be prohibited by the Commission, even if it should stand the drop test prescribed by paragraph E. G. Violations of these regulations discovered in cars con- taining explosives, or in the loading or staying of packages,, must be corrected before forwarding the car. A report of all serious violations, with a statement of apparent cause (such as defective packing, improper staying, rough treatment of car, etc.), must be made by the carrier to the chief inspector of the Bureau of Explosives. GROUPING. H. For transportation purposes, all explosives are divided, into the following groups: 1. Forbidden explosives. 2. Black powder. 3. High explosives. 4. Smokeless powders. 5. Fulminates. 6. Ammunition. 7. Fireworks. Section I.— INFORMATION AND DEFINITIONS. Group I. — Forbidden Explosives. See paragraphs 1531 to 1536. 1501. The following are forbidden explosives : (a) Liquid Nitroglycerin. (J) Dynamite containing over 60 percent of nitroglycerin (except gelatine dynamite). 655 TRANSPORTATION OF EXPLOSIVES. [§ 457 (c) Dynamite having an unsatisfactory absorbent, or one that permits leakage of nitroglycerin under any conditions liable to exist during transportation or storage. (d) Nitrocellulose in a dry condition, in quantity greater than ten (10) pounds in one exterior package. (See pars. 1557 to 1560.) (e) Fulminate of Mercury in Bulk in a dry condition and fulminates of all other metals in any condition. (/) Fireworks that combine an explosive and a detonator or blasting cap. (See pars. 1515 and 1644.) Group 2. — Black Powder. See paragraphs 151^1 to 1545. 1502. Black (or brown) powder embraces all explosives having a composition similar to that of ordinary gunpowder, such as carbonaceous material, sulphur, and a nitrate of sodium or potassium. This group includes rifle, sporting, blasting, cannon and the prismatic powders. Group 3. — High Explosives. See paragraphs 1551 to 1560. 1503. High explosives are all explosives more powerful than ordinary black powder, except smokeless powders and fulmin- ates. Their distinguishing characteristic is their susceptibility to detonation by a commercial detonator, or blasting cap. Many high explosives are sensitive to percussion and to fric- tion. Examples of high explosives are the dynamites, picric acid, picrates, chlorate powders, and nitrate of ammonia pow- ders. Group 4. — Smokeless Powders. See paragraphs 1571 to 1519. 1504. Smokeless powders are those explosives from which there is little or no smoke when fired. The group consists of smokeless powder for cannon and smokeless powder for small arms. Smokeless powder for cannon used in the United States at the present time consists of a nitrocellulose colloid, and is safe to handle and transport. Smokeless powders for small arms may consist of nitrocellulose, nitrocellulose combined with nitroglycerin, picrate mixtures, or chlorate mixtures. § 457] INTERSTATE TRANSPORTATION. 656 Group 5. — Fulminate. See paragraphs 1591 to 159S. 1505. This includes Fulminate of Mercury in bulk form — that is, not made up into percussion caps, detonators, blasting caps, or exploders. Group 6. — Ammunition. See paragraphs 1601 to 1622. 1506. Small-Arms Ammunition consists usually of a paper or metallic shell, the primer, powder charge, and projectile, the materials necessary for one firing being all in one piece, such as is used in sporting or fowling pieces, or in rifle, pistol practice, etc. 1507. Ammunition for Cannon embraces all fixed or separate- loading ammunition packed in a single package in which the projectile weighs one pound or over, and is usually transported only for Government use. When the component parts are packed in separate outside packages, such packages will be shipped as smokeless powder for cannon, explosive projectiles, empty projectiles, primers, or fuzes. Igniters composed of black powder may be attached to packages in shipments of smokeless powder. 1508. Explosive Projectiles, or loaded shells for use in can- non, are not liable to be exploded except by fire of consider- able intensity, and the flying fragments would then be very dangerous. 1509. Detonators is the technical name for articles such as blasting caps, the use of which is to cause explosions of a high order, or "detonations." This means the instantaneous conversion of the entire explosive into gas instead of the gradual conversion known as "combustion." Dynamite "detonates" and smokeless powder for cannon "burns." 1510. Blasting Caps contain from 5 to 50 grains of dry ful- minate of mercury, or a similar substance, packed in a thin copper cup and fired by a slow-burning safety fuze. "When a small "bridge" of fine wire is embedded in the fulminate, held by a sulphur cast, and arranged to fire the fulminate by heat- 657 TEANSPOKTATION OF EXPLOSIVES. [§ 457 ing the bridge by means of an electric current, the cap is called an "electric blasting cap" or "electric cap," or "elec- tric exploder." 1511. Detonating Fuzes are used to detonate the high ex- plosive bursting charges of projectiles or torpedoes. In addi- tion to a powerful detonator they may contain several ounces of a high explosive, such as picric acid or dry nitrocellulose, all assembled in a heavy steel envelope, the flying fragments of which, in case of explosion, would be very dangerous. From their careful design, manufacture, and packing detonating fuzes are not liable to be exploded in transportation except by fire of considerable intensity. 1512. Primers, Percussion and Time Fuzes are devices to ignite the black powder bursting charges of projectiles, or the powder charges of ammunition. For small-arms ammunition the primers are usually called "small-arm primers" or "per- cussion caps." Group 7. — Fireworks. See paragraphs ISJ/l to 16.'iT. 1513. Fireworks include everything that is designed and manufactured, primarily, for the production of pyrotechnic effects. They consist of common fireworks and special fire- works. 1514. Common Fireworks include ail that depend princi- pally upon nitrates to support combustion and not upon chlor- ates; that contain no phosphorus and no high explosive sensi- tive to shock and friction; that produce their effect through color display rather than by loud noises. If noise is the prin- cipal object, the units must be small and of such nature and manufacture that they will explode separately and harmlessly, if at all, when one unit is ignited in a packing case. They must not be designed for ignition by shock or friction. Ex- amples are Chinese firecrackers, Roman candles, pinwheels, colored fires, serpents, railway fusees, flash powders, etc. 1515. Special Fireworks include all that contain any quantity of red or white phosphorus, a fulminate, or other high explo- EEGtTLATIOlSr — 42. § 457] INTERSTATE TRANSPORTATION. 658 sive sensitive to shock or friction; or that contain units of such size that the explosion of one while being handled would pro- duce a serious injury; or that require a special appliance or tool, mortar, holder, etc., for their safe use; or that may be exploded en masse in their packing cases; or that are in- tended for or may be ignited or exploded by shock or friction. Examples are giant firecrackers, bombs, salutes, toy torpedoes and caps, rockets, ammunition pellets fired in a special holder, railway torpedoes, etc. Section II.— CONDITIONS OF ACCEPTANCE AND SHIPMENT OF PACKAGES. Group 1. — Forbidden and Condemned Explosives. 1531. Forbidden explosives, as defined in paragraph 1501, and explosives condemned by the Bureau of Explosives, must not be accepted for shipment. 1532. Should any package of high explosives when offered for shipment show excessive dampness or be moldy or show outward signs of any oily stain or other indication that ab- sorption of the liquid part of the explosive is not perfect or that the amount of the liquid part is greater than the absorbent can carry, the packages must be refused in every instance. The shipper must substantiate any claim that a stain is due to accidental contact with grease, oil or similar substance. In case of doubt, the package must be rejected. A shipment of leaking dynamite is liable to cause a disaster in spite of care- ful handling ; and storage, especially in warm and damp maga- zines, tends to cause leakage. Carriers must, for these reasons, examine with more than usual care all packages that have been stored or are offered for shipment during the summer months. REPACKING OF DYNAMITE. 1533. Condemned dynamite must not be repacked and offered for shipment unless the repacking is done by a competent per- son in the presence and with the consent of a local inspector, or with the written authority of the chief inspector, of the Bureau of Explosives. 659 TEANSPOETATION OF EXPLOSIVES., [§ 457 DISPOSITION OE INJURED, CONDEMNED, AND STRAY PACKAGES. 1534. Packages found injured or broken in transit may be recoopered when this is evidently practicable and not danger- ous. A broken box of dynamite that can not be recoopered should be reenforced by stout wrapping paper and twine, placed in another strong box, and surrounded by dry, fine sawdust, or dry and clean cotton waste, or elastic wads made from dry newspaper. A ruptured can or keg should be inclosed in a grain bag of good quality and boxed or crated. Injured packages thus protected and properly marked may be for- warded. 1535. Condemned packages of leaking dynamite should (1) be returned immediately to shipper if at point of shipment; or (2) disposed of to a dealer in dynamite or other person who is competent and willing to remove them from railway prop- erty, if leakage is discovered while in transit; or (3) removed immediately by consignee if shipment is at destination. When disposition can not be made as above, the leaking boxes must be packed in other boxes large enough to permit, and the leaking box must be surrounded by at least 2 inches of dry, fine sawdust or dry and clean cotton waste, and be stored in station magazine or other safe place, until arrival of the local inspector or other authorized person to superintend the destruction of the condemned material. 1536. When name and address of consignee are known, a stray shipment must be forwarded to its destination by the most practicable route, provided a careful inspection shows the packages to be in proper condition for safe transportation. Revenue and card waybills must be prepared and on them must be written or stamped "Stray shipment, inspected at ' — station, railroad, 19 — ," except in cases where authority can be obtained by wire from the original forward- ing station to stamp these waybills "Shippers' certificate file," etc. (See par. 1668.) When a package in a stray shipment is not in proper condi- tion for safe transportation (see par. 1534), or when name and address of consignee are unknown, disposition will be made as prescribed by paragraph 1535. § 457] , INTERSTATE TEANSPOKTATION. 660 Group 8. — Black Powder. 1541. Packing. — ^Packages containing less than twelve and a half (121/2) pounds of rifle, sporting, blasting, or cannon powders must be inclosed in a tight box, so that the filling holes of the packages will be up, and the boxes must be marked on top, as prescribed by paragraph 1544. 1542. Twelve and a half (12%) pounds or over of black or. brown powder must be packed in packages that comply with General Rules D, B, and F. Kegs less than 9 inches long must be boxed, as prescribed by paragraph 1541. 1543. Weight. — Packages mu.st not weigh over 150 pounds gross. 1544. Marking. — Each outside package must be plainly marked, stamped, or stenciled to show the kind, "BLACK" or "BROWN,"' and the use, "BLASTING," "RIFLE," "CAN- NON," "MORTAR," etc., as "BLACK BLASTING POW- DER," "BLACK RIFLE POWDER," etc. Additional marks, trade names, etc., may appear if desired by shipper. 1545. Car. — ^A car containing shipments of black powder in any quantity must be certified and placarded as prescribed by pars. 1661 and 1666. Group 3. — High Explosives. 1551. High explosives consisting of a liquid mixed with an absorbent material must have the absorbent (wood pulp or similar material) in sufficient quantity and of satisfactory quality, properly dried at the time of mixing; nitrate of soda must be dried at the time of mixing to less than 1 percent of moisture ; and the ingredients must be uniformly mixed so that the liquid will remain thoroughly absorbed under the most un- favorable conditions incident to transportation. 1552. Explosives containing nitroglycerin must have uni- formly mixed with the absorbent material a satisfactory ant- acid which must be in quantity sufficient to have the acid neu- tralizing power of an amount of magnesium carbonate equal to 1 percent of the nitroglycerin. 9 Occasional shipments of "brown powder," having the composition of black powder, are made by or for the United States Government. 661 TEANSPOETATION OF EXPLOSIVES. [§ 457 1553. Packing. — High explosives, containing more than 10 percent of nitroglycerin, must be made into cartridges not exceeding 4 inches in diameter, or 8 inches in length (does not apply to gelatine dynamite), and must not be packed in bags or sacks. Bags or sacks of high explosives, containing not more than 10 percent of nitroglycerin and not over 121/2 pounds each of explosive, will be accepted as cartridges, but these bags must be strong and must be placed in the box with filling ends up. The covering of all cartridges, consisting of paper or other material, must be strong and so treated that it will not absorb the liquid constituent of the explosive. 1554. All boxes in which cartridges containing nitroglycerin; are packed must be lined with a suitable material that is impervious to liquid nitroglycerin. Cardboard cartons closed at the bottom and made of strong and flexible material that is impervious to nitroglycerin form a satisfactory lining. At least one-quarter of an inch of dry sawdust or similar material must be spread over the bottom of the box before inserting the cartridges, and all the vacant space in the top must be filled with this material. The cartridges, except the bags or sacks authorized in paragraph 1553, must be so arranged in the boxes that when they are transported with the boxes top side up all cartridges will lie on their sides and never on their ends. 1555. The boxes must be strong (General Rules D, B, and F), the lumber throughout must be sound and free from loose knots and, when made with lock corners, must not be less than one-half inch in thickness. When nailed boxes are used, the ends must not be less than 1 inch, nor the sides, top, and bottom less than one-half inch in thickness. The limits for thickness refer to the finished box and not to the undressed lumber. 1556. High explosives, containing no explosive liquid ingred- ient, and not having, with their normal percentage of mois- ture, a sensitiveness to percussion greater than measured by the blow delivered by an 8-pound weight dropping from a height of five (5) inches on a compressed pellet of the explosive, three- hundredths of an inch in thickness and two-tenths of an inch § 457] INTERSTATE TRANSPOETATIOX. 662 in diameter, held rigidly between hard steel surfaces, as in the standard impact testing apparatus of the Bureau of Ex- plosives, will be accepted for shipment when securely packed in bulk in tight packages that comply with General Rules D, B, and F. These explosives may also be packed in cartridges, and must be so packed when their sensitiveness is greater than the above limit. 1557. Dry Nitrocellulose.— Inside packages containing not more than 1 pound each of nitrocellulose, wrapped in strong paraffined paper, or other suitable spark-proof material, will be accepted for shipment if securely packed in an outside package that complies with General Rules D, E, and F, and is marked as prescribed in paragraph 1559. Outside packages must not contain more than ten (10) pounds of dry nitro- cellulose. 1558. Weights. — ^High explosives containing an explosive li- quid ingredient must not exceed seventy-five (75) pounds, gross weight, in one outside package. High explosives containing no liquid explosive ingredient as defined in paragraph 1556, must not exceed 125 pounds, gross weight, in one outside package. The gross weight of an outside package containing dry nitro- cellulose, packed as defined in paragraph 1557, must not ex- ceed 35 pounds. 1559. Marking. — The boxes must be plainly marked on top and on one side or end "HIGH EXPLOSIVE— DANGEROUS. " The top must be marked "THIS SIDE UP." 1560. Car. — For shipments of high explosives in any quan- tity, the car must be certified and placarded as prescribed by paragraphs 1661 and 1666. Group 4. — Smokeless Powder. SMOKELESS POWDER FOR CANNON. 1571. Packing. — Smokeless powder for cannon must be packed in tight boxes free from loose knots and cracks, or in kegs, that comply with General Rules D, E, and F. 1572. Weight. — Packages must not weigh over 152 pounds gross. 663 TRANSPORTATION OF EXPLOSIVES. [§ 457 1573. Marking. — Each package must be plainly marked on top "SMOKELESS POWDER FOR CANNON." 1574. Car. — Smokeless powder for cannon may be shipped in any box car in good condition. The car must be placarded "INFLAMMABLE" as prescribed by paragraph 1663. SMOKELESS POWDER FOR SMALL ARMS. 1575. Packing. — Packages of less than nine (9) pounds of smokeless powder for small arms must be inclosed in a tight box so that the filling hole of each inside package will be up, and the box must be marked on top as prescribed by para- graph 1578. 1576. Quantities of 9 pounds or over must be placed in packages that comply with General Rules D, B, and F. Kegs less than 9 inches long must be boxed as prescribed by para- graph 1541. 1577. Weight. — ^Packages weighing over 31 pounds gross will not be received unless packed under the supervision of and shipped for the use of the United States .Government. Packages weighing not over 30 pounds gross each may be in- closed in an outside package, in which case the gross weight must not exceed 150 pounds. 1578. Marking. — Each outside package must be plainly marked on top "SMOKELESS POWDER FOR SMALL ARMS." 1579. Car. — Shipments of smokeless powder for small arms in any quantity require a car to be certified and placarded, as prescribed by paragraphs 1661 and 1666. Group 5. — Fulminate. 1591. Packing. — Fulminate of mercury in bulk must contain, when packed, not less than twenty-five (25) percent of water, and must in this wet condition be placed in a bag made of heavy cotton cloth of close mesh equal in quality and weight to the cotton twiU used for pockets in high-grade clothing. There must be placed inside the bag and over the fulminate a cap of the same cloth and of the diameter of the bag, and the bag must be tied securely and placed in a strong grain bag, § 457] INTERSTATE TEANSPOETATION. 664 which must in turn be tied securely and packed in the center of a cask or barrel in good condition and of the kind used for shipment of alcohol. The grain bag must not contain more than 150 pounds dry weight of fulminate, and it must be surrounded on all sides by tightly packed sawdust not less than 6 inches thick. The cask or barrel must be lined with a heavy close-fitting jute bag closed by secure sewing to prevent escape of sawdust. After the barrel is properly coopered it must be filled with water, the bung sealed; the barrel must be inspected carefully and all leaks stopped. 1592. Marking. — ^Each cask, or barrel, must be plainly marked "WET FULMINATE OF MERCURY— DANGER- OUS." 1593. Car. — ^A car containing fulminate in any quantity mTist be certified and placarded as prescribed by paragraphs 1661 and 1666. , Group 6. — Ammunition. SMALL-ARMS AMMUNITION. 1601. Packing. — Small-arms ammunition must be packed in pasteboard or other boxes, and these pasteboard or other boxes must be packed in strong outside boxes. Small-arms ammunition in pasteboard or other boxes and in quantity not exceeding a gross weight of 75 pounds may be packed with nonexplosive and noninflammable articles and with small-arms primers or percussion caps (see par. 1619), provided the shipment is certified (see par. 1668), and the out- side package is marked as prescribed in paragraph 1602. 1602. Marking. — Each outside package or case must be plain- ly marked "SMALL- ARMS AMMUNITION." 1603. Car. — Small-arms ammunition may be shipped in any box car which is in good condition, without the placard pre- scribed by paragraph 1663. AMMUNITION FOR CANNON. 1604. Packing. — Ammunition for cannon must be well packed and properly secured in strong boxes provided with cleats or handles. 665 TRANSPORTATION OF EXPLOSIVES. [§ 457 1605. Marking. — Each outside package must be plainly marked "AMMUNITION FOR CANNON— EXPLOSIVE PROJECTILES," or "AMMUNITION FOR CANNON- EMPTY PROJECTILES," according as the projectiles do, or do not, contain a bursting charge. 1606. Car. — ^A car containing ammunition for cannon with explosive projectiles must be certified and placarded as pre- scribed by paragraphs 1661 and 1666. This is not required when projectiles are empty, but in this case cars must be pro- tected by "INFLAMMABLE" placard, as prescribed by para- graph 1663. EXPLOSIVE PROJECTILES. 1607. Packing. — Explosive projectiles must be packed in strong boxes, and each projectile must be properly secured. When the gross weight does not exceed 150 pounds the box must be provided with cleats or handles. 1608. Weight. — The gross weight of a box containing more than one projectile must not exceed 150 pounds. 1609. Marking. — Each exterior package must be plainly marked "EXPLOSIVE PROJECTILE" or "EMPTY PRO- JECTILE." No restrictions other than proper marking are necessary for the shipment of empty projectiles. 1610. Car. — ^For explosive projectiles in any quantity the car must be certified and placarded as prescribed in para- graphs 1661 and 1666. BLASTING CAPS. 1611. Packing. — Blasting caps contain such a sensitive and dangerous explosive that very efficient packing is necessary. Blasting caps must be packed in strong tin receptacles in which they must fit snugly, and the caps must be closely se- cured by cleats projecting from a plate of suitable elastic ma- terial placed inside the box and over the caps. Not more than 100 blasting caps must be packed in a single tin box. All sepa- rate tin boxes must then be packed snugly in paper or paste- board cartons, and these must be packed in an inside box made of sound lumber not less than three-eighths of an inch in § 457] INTERSTATE TEANSPOETATION. 666 thickness (except in eases where it is made of hardwood with reenforced corners, and the lid securely fastened down with at least four strong wires bound around the box, in which case the lumber must not be less than three-sixteenths, of an inch in thickness). This inside wooden box must then be packed in an outside box made of sound lumber not less than 1 inch in thickness and free from loose knots and cracks. Tightly-packed sawdust or excelsior, at least 1 inch thick at all points, must separate the inside from the outside wooden box. More than 20,000 blasting caps must not be placed in one outside package. If the outside box is to contain not more than 5,000 caps, the inside box may be omitted, and the outside box may be made of half -inch lumber; but in this case the tin boxes in paste- board cartons must be separated from the outside box at all points by at least 1 inch of tightly-packed sawdust or excel- sior. One tin box containing not more than 100 caps may be packed with safety fuze. (Par. 1648.) Electric blasting caps must be packed in pasteboard cartons containing not more than 50 caps each. These cartons must be packed in a wooden box made of lumber not less than one-half inch in thickness. All boxes containing more than 5,000 blasting caps or weigh- ing more than 50 pounds, gross weight, must be provided with cleats or handles, and all lids must be securely fastened. 1612. Weight. — The gross weight of an outside package con- taining blasting caps or electric blasting caps must not exceed 150 pounds. 1613. Marking. — Bach outside package must be plainly marked "BLASTING CAPS— HANDLE CAREFULLY," or "ELECTRIC BLASTING CAPS— HANDLE CAREFULLY." In addition each box must bear the marking "DO NOT STORE OR LOAD WITH ANY HIGH EXPLOSIVE." 1614. Car. — Certificate and placard as prescribed by para- graphs 1661 and 1666 are required for shipments of blasting caps in any quantity, except that a shipment of not more than 100 blasting caps may be transported in a box car in good con- dition without car certificate or placard. 667 TEANSPOKTATION OF EXPLOSIVES. [§ 457 DETONATING FUZES. 1615. Packing. — Detonating fuzes must be packed in strong, tight boxes provided with cleats or handles, and each fuze must be vsrell secured. 1616. Weight. — The gross vreight of one outside package must not exceed 150 pounds. 1617. Marking. — Each outside package must be plainly marked "DETONATING FUZES— HANDLE CAREFULLY." 1618. Car. — A car containing detonating fuzes in any quan- tity must be certified and placarded as prescribed in para- graphs 1661 and 1666. PEIMEES, PERCUSSION AND TIME FUZES. 1 1619. Packing. — Primers, percussion and time fuzes must be packed in strong, tight boxes, with special provision for secur- ing individual packages of primers and fuzes against movement in the box. Small-arms primers, containing anvils, must be packed in cellular packages with partitions separating the layers and columns of primers, so that the explosion of a portion of the primers in the completed shipping package will not cause the explosion of all of the primers. Percussion caps may be packed in metal or other boxes con- taining not mere than 500 caps, but the construction of the cap, and the kind and quantity of explosives in each, must be such that the explosion of a part of the caps in the completed shipping package will not cause the explosion of all of the caps. Small-arms primers and percussion caps may form a part of the gross weight of 75 pounds of small-arms ammunition that may be packed with other articles as authorized by paragraph 1601. 1620. Weight. — The gross weight of one outside package /nust not exceed 150 pounds. 1621. Marking. — Each outside box must be plainly marked ^' SMALL- ARMS PRIMERS— HANDLE CAREFULLY," or "PERCUSSION CAPS — HANDLE CAREFULLY," or "CANNON PRIMERS— HANDLE CAREFULLY," or "COM- § 457] INTERSTATE TKANSPOKTATION. 668 BINATION PRIMERS— HANDLE CAREFULLY," or "PER- CUSSION FUZES— HANDLE CAREFULLY," or "COMBI- NATION FUZES— HANDLE CAREFULLY," etc. 1622. Car Primers, percussion and time fuzes may be shipped in a box car whicb is in good condition without the placard prescribed by Par. 1663. Group 7. — Fireworks. COMMON FIREWORKS. 1641. Packing. — Common fireworks must be in a finished state, exclusive of mere ornamentation, as supplied to the re- tail trade, and must be securely packed in strong, tight, spark- proof boxes. 1642. Marking. — Each outside package must be plaidly marked "COMMON FIREWORKS— KEEP FIRE AWAY." 1643. Car. — Common fireworks may be shipped in a box car which is in good condition (par. 1663), but they must not be loaded in the same car with explosives or with inflammable articles (par. 1680). A car containing any quantity of common fireworks must be protected by the "INFLAMMABLE" placard. (See par. 1663.) SPECIAL FIREWORKS. 1644. Packing. — Special fireworks must be in a finished state, exclusive of mere ornamentation, as supplied to the re- tail trade, and must not contain a blasting cap or detonator. (See par. 1501 (/).) They must be securely packed in strong, tight, spark-proof boxes, that comply with General Rules D, E, and F, provided with cleats or handles. 1645. Weight. — The gross weight of one outside package containing special fireworks must not exceed 200 pounds. 1646. Marking. — Each outside package, if it contains spe- cial or a mixture 6f common and special fireworks, must be plainly marked "SPECIAL FIREWORKS— HANDLE CARE- FULLY—KEEP FIRE AWAY." 1647. Car. — Special fireworks may be shipped in any box car which is in good condition (par. 1663), h\it they must not 669 TEANSPOETATION OP EXPLOSIVES. [§ 457 be loaded in the same car with explosives or inflammable ar- ticles (par. 1680). A car containing any quantity of special or other fireworks must be protected by the "INFLAM- MABLE" placard. (See par. 1663.) SAFETY FUZE AND SAFETY SQUIBS. 1648. Safety fuze and safety squibs, when properly boxed or packed in barrels, may be accepted for shipment and loaded in any car with any other kind of an explosive or inflammable substance or with other freight. If blasting caps are packed with safety fuze the outside package must be marked as pre- scribed by paragraph 1613. (See par. 1611.) Section III.— SELECTION AND PREPARATION OF CARS. 1661. The safe transportation of explosives depends very largely upon the kind and condition of the car in which they are loaded. For the transportation of — Black or brown powder, High explosives, Smokeless powder for small arms, Fulminates, Blasting caps, Electric blasting caps. Ammunition for cannon — explosive projectiles. Explosive projectiles, or Detonating fuzes, only certified and placarded box cars may be used. (See pars. 1662 and 1666.) 1662. Certified cars must be inspected inside and out and must conform to the following specifications: (a) Not less than 60,000 pounds capacity. Steel under- frame box cars or other box cars with friction draft gear should be used when available. On narrow-gauge and other railroads, all of whose freight cars are of less than 60,000 pounds capacity, explosives may be transported in cars of less than that capacity, provided the cars of greatest capacity and strength are used for this purpose. § 457] INTERSTATE TEANSPOETATION. 670 (&) Must be equipped with air brakes and hand brakes in condition for service. (c) Must have no loose boards or cracks in the roof, sides, or ends. {d) The doors must shut so closely that no sparks can get in at the joints, and, vsrhen necessary, they must be stripped. The stripping for flush doors should be on the inside and nailed to the door frame, where it will form a shoulder against which the closed door is pressed. The opening under the doors should be similarly closed. (e) The journal boxes and trucks must be carefully ex- amined and put in such condition as to reduce to a minimum the danger of hot boxes or other failure necessitating the set- ting off of the car before reaching destination. The lids or covers of journal boxes must be in place. (/) The car must be carefully swept out before it is loaded. Holes in the floor or lining must be repaired and special care taken to have no projecting nails or bolts or exposed pieces of metal which may work loose or produce holes in packages of explosives during transit. (gr) "When the car is to be fully loaded with explosives or when explosives are loaded over exposed draftbolts or king- bolts, these bolts must have short pieces of solid, sound wood (2-ineh plank) spiked to the floor over them to prevent pos- sibility of their wearing into the packages of explosives. {h) The roof of the car must be carefully inspected from the outside for decayed spots, especially under or near the running board, and such spots must be covered to prevent their holding fire from sparks. A car with a roof generally decayed, even if tight, must not be used. {i) "When explosives are to be tarried in a "way car"^" one should be selected with flush doors in good condition or with doors fitting so tightly that stripping will not be neces- sary. (&) The carrier must have ear examined to see that it is 10 A "way car" is one from which shipments are unloaded by the train crew. 671 TKANSPOKTATION OF EXPLOSIVES. [§457 properly prepared, and must have a "Car Certificate" signed in triplicate upon the prescribed form (par. 1665) before per- mitting the ear to be loaded. (Z) Cars not in proper condition, as above specified, must not be furnished to the shipper or used for the transportation of explosives. 1163. Carload or less than carload lots of — Small-arms ammunition, Primers, Percussion fuzes. Time or combination fuzes, Ammunition for cannon — empty projectiles, Ammunition for cannon — ^without projectiles. Smokeless powder for cannon, or Fireworks, may be loaded in any box car which is in good condition, into which sparks cannot enter, and whose roof is not in danger of taking fire through unprotected decayed wood. These cars may be used without being certified and placarded as pre- scribed by paragraphs 1661 and 1666 ; but cars containing — Ammunition for cannon — empty projectiles. Ammunition for cannon — ^without projectiles, Smokeless powder for cannon, or » Fireworks, must be protected by the "INFLAMMABLE" placard (see par. 1940), and the doors must be stripped when necessary. Placarding of Cars and Certification of Contents. 1664. Uniform practice is important, and the prescribed forms of car certificates and placards must be used. 1665. Car Certificate. — The following certificate (prescribed by par. 1662k), printed on strong tag board measuring 7 by 7 inches, must be duly executed in triplicate by the carrier, and by the shipper if he loads the shipment. The original must be filed by the carrier at the forwarding station, and the other two must be attached to the outside of the car doors, one on each side, the lower edge of the certificate 41/0 feet above the floor level. § 457] INTERSTATE TEANSPOKTATION'. 672 CAR CERTIFICATE. No. 1. Station, , 19—. I hereby certify tliat I have this day personally examined ■ car No. , and that the roof and sides have no loose boards, holes or cracks, or unprotected decayed spots liable to hold sparks and start a fire; that the kingbolts or draft bolts are properly protected, and that there are no uncovered irons or nails projecting from the floor or sides of the car which might injure packages of explosives; also, that the floor is in good condition and has this day been cleanly swept before the car was loaded; that I have examined all the axle boxes, and that they are properly covered, packed and oiled, and that the air brakes and hand brakes are in condition for service. No. 2 — • Station, , 19—. I hereby certify that I have this day personally examined the above car, that the floor is in good condition and has been cleanly swept and that the roof and sides have no loose boards, holes, cracks, or unprotected decayed spots liable to hold sparks and start a fire; that the kingbolts and draft bolts are protected, and that there are no uncovered irons or nails projecting from the floor or sides of the car which might Injure packages of explosives; that the ex- plosives in this car have been loaded and stayed, and that the car has been placarded according to paragraphs 1661, 1666, and 1674 to 1683, inclusive, of the Regulations for the Transportation of Explosives pre- scribed by the Interstate Commerce Commission; that the doors fit so tightly or have been stripped so that sparks can not get in at the joints or battom. NOTE. — Both certificates must be signed. Certificate No. 1 by the representative of the carrier. For all shipments loaded by the shipper he, or his authorized agent, and the representative of the carrier must sign certificate No. 2. When the car is not loaded by shipper certificate No. 2 must be signed only by the representative of the carrier. A shipper should decline to use a car not in proper condition. 1666. Placard. — Each car contaiBing any of the explosives specified in paragraph 1661, and in any quantities, must be protected by attaching to the outside of the car on both sides and ends, the lower edge 41/2 feet above the car floor, a stan- dard placard, 12 by 14 inches, on which will appear in con- spicuous red and black printing, on strong tag board, the fol- lowing notice: 673 TEANSPORTATION OF EXPLOSIVES. [§ 457 EXPLOSIVES (To be printed in red.) HANDLE CAREFULLY KEEP FIRE AWAY (To be printed in red.) Station , 19. . . CONDENSED RULES FOR HANDLING THIS CAR. 1. This car must not be placed In a passenger train; nor In a mixed train If avoidable. 2. Cars containing explosives must be near center of train and may be together If desired; must be at least fifteen cars from engine and ten cars from, caboose when length of train will permit. 3. Cars containing explosives must be placed between box cars which are not loaded with Inflammable articles, charcoal, cotton, acid, lumber. Iron, pipe, or other articles liable to break through end of car from rough handling. 4. A steel underframe car containing explosives may be placed between steel hopper cars In train. 5. The air and hand brakes on this car must be In service. 6. In shifting, have a car between this car and engine whenever possible, and do not cut this car off while in motion. 7. Avoid all shocks to this car and and couple carefully. 8. Avoid placing It near a possible source of fire. 9. Engines on parallel track must not be allowed to stand opposite or near this car when it can be avoided. 1667. A car containing any of the explosives (as prescribed in par. 1661) m|ust not be permitted to leave a station or sid- ing vrithout having the certificates and placard prescribed in paragraphs 1665 and 1666 securely and properly aifixed. 1668. Shippers' Certificate. — Before any package containing one or more of the following articles : Black or brown powder, High explosives, Smokeless powder for cannon, Smokeless powder for small arms, Fulminates, Small-arms ammunition, Ammunition for cannon — explosive projectiles, Ammunition for cannon — empty projectiles, Eegulation — 43. § 457] INTERSTATE TRANSPORTATION. 674: Anununition for cannon — without projectiles, Explosive projectiles, Empty projectiles, Detonating fuzes. Blasting caps. Electric blasting caps, Primers (naming kind). Percussion fuzes, Time or combination fuzes, Common fireworks, Special fireworks, Safety fuze, or Safety squibs, can be accepted, the shipper must prepare and deliver to the carrier a shipping order on which each article is entered under its proper name, as specified in this paragraph, and over the signature of shipper, or his duly authorized agent, must be printed, written, or stamped, and made part of the shipping order, the following certificate: This is to certify that the above articles are properly described by name and are packed and marked and are in proper condition for transportation, according to the regulations prescribed by the Inter- state Commerce Commission. The carrier must see that the shipment is properly de- scribed and that the correct gross weight is given on the reve- nue waybill. The carrier must also cause to be written or stamped on the face of the card and revenue waybill: Shippers' Certificate on Pile with Initial Carrier. The card waybill, for a car containing any quantity of the explosives named in paragraph 1661, must also have plainly stamped across the top the word "EXPLOSIVES." 1669. The carrier must see that the shipping order for ex- plosives is kept at stations where the shipments originate on a separate file, together with all original Car Certificates that pertain to that station. The duplicate and triplicate Car Cer- tificates taken from cars unloaded at any station may be de- 675 TKANSPOETATION OF EXPLOSIVES. [§ 457 stroyed if there are no violations of these regulations to report. (See par. G, General Rules.) Shipments from Connecting Lines. 1670. Cars containing explosives as specified in paragraph 1661 which are offered by connecting lines must be carefully inspected, without unnecessary disturbance of lading, by the receiving line to see that these regulations have been complied with, and the car must not be forwarded until all discovered violations are corrected. Shipments of explosives offered by connecting steamship lines must comply with these regulations, and revenue waybill must bear the indorsements prescribed by paragraph 1668. Handling of Explosives. 1671. In handling packages of explosives at stations and in cars the greatest care must be taken to prevent their fall- ing or getting shocks. They must not be thrown, dropped, nor rolled. 1672. The carrier must choose careful men to handle ex- plosives, must see that the platform and the feet of the men are as free as possible from grit, and must take all possible precautions against fire. Unauthorized persons must not be allowed to ha^'e access to explosives at any time while they are in the custody of the carrier. Suitable provision must be made, outside of the station, when practicable, for the safe storage of explosives, and every effort possible must be made to reduce the time of this storage. Prompt removal by con- signee must be enforced, to avoid unnecessary danger. 1673. Shipments of high explosives and powder should not be unloaded at a nonagency station unless the consignee is there to receive them, or unless satisfactory storage facili- ties are provided at that point for their protection. Loading in Car. 1674. Boxes of explosives when loaded in the car must rest on their bottoms. A car must not contain more than 70,000 pounds gross weight of explosives. This limit does not apply to shipments of ammunition. §457] INTEKSTATE TKANSPOETATION. 676 1675. Explosives packed in round kegs, except w&en boxed, must be loaded on their sides with heads toward ends of the car; and they must not be placed in the space opposite the doors unless the doorways are boarded on the inside as high as the lading. Large casks, barrels, or drums may be loaded on their sides or ends as will best suit the conditions. 1676. Packages containing any of the explosives for the transportation of which a certified and placarded car is pre- scribed (par. 1661) must be stayed {blocked and braced) by whoever loads the car, to prevent change of position by the ordinary shocks incident to transportation. Special care must be used to pre-^ent them from falling to the floor or from hav- ing anything fall on them during transit. To prevent delays to way-freight trains, when there is more than one shipment of explosives loaded in a "peddle" or "way car," each ship- ment should be stayed separately. If the staying is broken down to unload a shipment of explosives, the remaining pack- ages must be restayed. 1677. Detonating fuzes or blasting caps, or electric blast- ing caps, must not be loaded in a car or stored with high ex- plosives of any kind, including explosive projectiles, nor with w^'et nitrocellulose, nor with smokeless powder for small arms. ' 1678. Fulminates in bulk must not be loaded with any ex- plosive or inflammable article. ' 1679. When necessary, detonating fuzes may be assembled in explosive projectiles shipped by the United States Govern- ment. 1680. Fireworks must not be loaded in the same car with any other explosives or inflammable substance, except small- arms ammunition, primers, percussion fuzes, time or combina- tion fuzes, safety fuze, and safety squibs. 1682. Explosives covered by these regulations, other than small-arms ammunition, primers, percussion fuzes, time or •combination fuzes, safety fuzes, and safety squibs, must not "be transported in the same car with nor stored on railway property near any of the dangerous articles covered by the Begulations for the Transportation of Inflammable Articles and 677 TRANSPORTATION OF EXPLOSIVES. [§ 457 Acids approved by the American Railway Association and on file with the Interstate Commerce Commission. When practicable, certain and separate days should be as- signed for receiving from shippers less than carload lots of explosives. 1683. In a car containing explosives all packages of other freight must be so loaded and stayed as to prevent all injury of packages of explosives during transit. When it is possible, explosives should be loaded so as to avoid transfer stations.^^ Handling Cars Containing Explosives. 1684. Cars containing explosives must not be hauled in a passenger train; nor in a mixed train when this can be avoided. The phrase "cars containing explosives" as used in this and subsequent paragraphs, excepting paragraph 1697, refers to the explosives specified in paragraph 1661. This does not apply to explosives lawfully transported in a baggage or express car in a passenger train in accordance with Section 232 of the Act of Congress approved March 4, 1909. 1685. Expediting Shipments of Explosives. — Every possible effort must be made to expedite the movement of cars contain- ing explosives. 1686. In Through Road Trains. — Cars containing explosives must be placed near the center of the train, and two or more such cars may be placed together if desired. They must be at least fifteen (15) cars from the engine and ten (10) cars from the caboose when the length of train will permit. Such cars must be placed between box cars which are not loaded with inflammable articles, charcoal, cotton, acid, lum- ber, iron, pipe, or other articles liable to break through end of car from rough handling. When explosives are loaded in steel underframe cars, such cars may be placed in train between steel hopper cars. All cars containing explosives must have air and hand brakes in service. 1687. In Shifting and Local Freight Trains. — Cars contain- 11 At stations where it is necessary to handle explosives at night it is recommended that incandescent electric lights he provided. § 457] INTBHSTATE TKANSPOETATION. 678 ing explosives must be coupled in the air service and placed as near the center of the train as possible. 1688. Handling in Yards. — When handling cars containing explosives in yards or on sidings, they must, unless it is prac- tically impossible, be coupled to the engine protected by a car between, and they must never be cut off while in motion. They must be coupled carefully and all unnecessary shocks must be avoided. Other cars must not be allowed to strike a ear containing explosives. They must be so placed in yards or on sidings that they will be subject to as little handling as possible, removed from all danger of fire, and, when avoidable, engines on parallel tracks must not be allowed to stand oppo- site or near them. 1689. Under no circumstances must a car known to require the "EXPLOSIVE" placard be taken from a station, includ- ing transfer stations, or a siding, unless it is properly carded as per paragraphs 1661 and 1666, nor unless the car is in proper condition. 1690. When a car containing explosives is in a train, the carrier must make proper provision for notifying its train and engine emiployes of the presence and location of such ear in the train before leaving the initial station. 1691. Such cars must be frequently inspected to see that the carding is intact. Whenever any of these cards become detached or lost in transit they must be replaced on arrival at the next division terminal yard. 1692. Unless otherwise arranged for, when a car contain- ing explosives is to be transferred, unloaded, or stored for any purpose, at a given junction, station, or yard, the carrier must provide for due notice to such station, by wire, of the probable time of arrival and the number of cars (not car numbers) in order that proper provision may be made at that point for handling the same. 1693. At points where trains stop cars containing explo- sives and adjacent cars must be examined to see if they are in good condition and free from hot boxes or other defects liable to cause damage. If cars containing explosives are set out 679 TKANSPOKTATION OF EXPLOSIVES. [§ 457 short of destination for any cause, the carrier must arrange that proper notice be given to prevent accident. 1694. Whenever a car containing explosives is opened for any purpose inspection must be made of the packages of ex- plosives to see that they are properly stayed and in good con- dition and that no box of dynamite is standing on its end or side. Upon the discovery of leaking dynamite or loose povr- der the defective packages must be carefully removed to a safe place. Loose powder or other explosives must be swept up and carefully removed. If the floor is wet with nitro- glycerin, the car is unsafe to use, and a local inspector of the Bureau of Explosives should be immediately called to super- intend the thorough mopping and washing of the floor with a warm, saturated solution of concentrated lye or sodium car- bonate. If necessary, the car must be placed on an isolated siding and proper notice given. (See pars. 1534 and 1535.) 1695. The certificates and placards prescribed in pars. 1665 and 1666 must be removed from the car as soon as the explo- sives are unloaded. 1696. Carriers must see that all shippers of explosives in their territory are furnished with copies of these- regulations. In Case of a Wreck. 1697. In case of a wreck involving a car containing ex- plosives, the first and most important precaution is to prevent fire. Although most of the group, "high explosives," may burn in small amounts quietly and without causing a disas- trous explosion, yet everything possible must be done to keep fire away. Before beginning to clear a wreck in which a car containing explosives is involved, all unbroken packages should be removed to a place of safety, and as much of the broken packages as possible gathered up and likewise re- moved, and the rest saturated with water. Many explosives are readily fired by a blow or by the spark produced when two pieces of metal or a piece of metal and a stone come violently together. In clearing a wreck, therefore, care must be taken not to strike fire with tools, and in using the crane or locomo- tive to tear the wreckage in pieces the possibility of producing § 457] INTERSTATE TEANSPOETATION. 680 sparks must be considered. With most explosives thorough wetting with water practically removes all danger of explo- sion by spark or blow ; but with the dynamites, wetting does not make. them safe from blows. With all explosives, mixing with wet earth renders them safer from either fire, spark, or blow. In case "fulminate" has been scattered by a wreck, after the wreck has been cleared the top surface of the ground should be removed, and, after saturating the area with oil, re- placed by fresh earth. If this is not done, when the ground and fulminate become dry, small explosions may occur when the mixed material is trodden on or struck. 1940. A white placard, of diamond shape, printed on strong tag board, measuring 15 inches on each diagonal, and bearing in red and black letters the following inscription, "INFLAM- MABLE—KEEP LIGHTS AND FIRES AWAY— HANDLE CAREFULLY," must be placed on each outside end and side of a car containing any quantity of Smokeless Powder for Can- non, or Ammunition for Cannon with Empty Projectiles, or Fireworks. C3HAPTBR XXX. FREIGHT TARIFFS OR RATE SCHEDULES. Section 458. Publication of Rates and Charges for Transportation. 459. Filing Tariffs, Classifications, Exception Sheets, Supplements, Con- currences, etc., with the Interstate Commerce Commission. 460. Posting of Tariffs or Rate Schedules. 461. Jurisdiction of the Interstate Commerce Commission over the Publication, Posting and Filing of Tariffs or Rate Schedules. 462. Notice Required for Publication of Rates and Charges therein. 463. Rules and Regulations affecting Rates, such as Switching, Term- inal, Drayage, Refrigeration, Car-Service, Storage and Elevation Charges, , and Diversion, Reconsignment and Transit Privileges, and Allowances to Shippers must be Shown in Tariffs. 464. Carriers Prohibited from Engaging in Transportation subject to the Act to Regulate Commerce unless they File and Publish Rates and Charges thereon. 465. Tariffs Distinguishing between Shipments Handled by Steam and Electrical Power. 466. Phraseology used in Tariffs. 467. Different Kinds of Freight Tariffs Defined. 468. Tariffs must be Printed. 469. Form and Size of Freight Tariffs. 470. Information to be Shown on Title-Page of Every Freight Tariff. 471. Information that Freight Tariffs shall Contain. 472. A Tariff is not Governed by a Classification except when so Specified. 473. Commodity Rates Shown in Tariffs must be Specific. 474. Alternative Use of Class or Commodity Rates. 475. Amendments and Supplements to Tariffs. 476. Effective Dates of Tariffs, Classifications, and Exception Sheets and Supplements thereto. 477. Cancellation of Tariffs or Parts thereof. 478. Joint Tariffs Issued by Joint Agents. 479. Agents Authorized to Issue and Pile Tariffs, Classifications and Exception Sheets and Supplements thereto. 480. Concurrence by Carriers in Tariffs Issued and Piled by another Carrier or its Agent. 681 INTERSTATE TEAJSTSPOETATION. 683 Section 481. Letter of Transmittal accompanying Tariffs Filed with the Com- mission. 482. Basing or Proportional Tariffs must be Specific. 483. Distance Tariffs. 484. Fast Freight Line Guide Books. 485. Tank Line Gauge Books. 486. Tariffs governing the Transportation of Explosives. 487. Tariffs covering Transportation strictly for the United States, State, or Municipal Governments need not be Published or Filed. 488. Tariffs covering Freight received in the United States and carried through a Foreign Country to any place in the United States. 489. Numerical Order of I. C. C. Numbers of Tariffs, or Explanation of Missing Numbers, Required. 490. Withdrawal of Filed Tariffs not Permitted. 491. Equalizing Rules or Tariffs. 492. Responsibility of Carriers under Tariffs. 493. Tariffs Regulating Switching or Terminal Charges between Car- riers. 494. Index of Freight Tariffs. 495. Tariffs containing Rail-and-Water or All- Water Rates. 496. Rate Schedules Rejected by the Commission. 497. Receipt by and Filing of Tariffs with the Commission does not Relieve Carriers from Liability for Violation of the Act or Regu- lations thereunder. 498. Rates Prescribed in Commission's Decision must be Promulgated in Tariffs and Commission Notified. 499. Circulars announcing Compliance with Orders of Court. 500. Maintenance of Relative Adjustment in Issuing Tariffs to Con- form with Formal Order of the Commission. 501. Rates for Hauling Private Cars. 502. Industrial or Terminal Roads as Parties to Joint Tariffs. 503. Tariffs cannot oe given a Retroactive Effect. 504. All State or Other Rates used for Interstate Shipments must be Posted and Piled. 505. All Local Tariffs should have I. C. C. Numbers and be Posted and Filed. 506. Tariffs of Water Carriers. 507. Lessee Road not serving Public as Common Carrier. 508. Tariff covering Export and Import Traffic. 509. Departure from Published Tariff declared to be a Misdemeanor and Penalty therefor. 510. Maximum Rates not Specific Rates. 511. Failure of Carrier to Publish Rate a Misdemeanor and Penalty therefor. 683 fheight tariffs or rate schedules. [§ 458 Section 512. Copies of Schedules and Tariffs of Rates to be Preserved as Public Records in Custody of Secretary of Commission. 613. Certified Copies of Tariffs as Prima Facie Evidence. 514. Carriers cannot Advance Charges to Water Carriers unless they are Parties to the Tariff. 515. Express Company Freight Tariffs or Rate Schedules. § 458. Publication of Rates and Charges for Transportation. 1[ A. Mandate of the Act as to Publication of Rates. The Act to Regulate Commerce requires that every common carrier subject to its provisions shall publish schedules show- ing all the rates and charges for transportation between dif- ferent points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established.^ If no joint rate over the through route has been~established, the several carriers in such through route shall print, as afore- said, the separately established rates and charges applied to the through transportation.^ 11 B. Joint Tariffs must Specify ISTajies of Participating Carriers. The Act requires the names of the several carriers which are parties to any joint tariff to be specified therein.^ 1[ C. Presumption that Rates have been duly Published. "Where suit at law for damages, because of an alleged un- just or discriminatory freight charge, is brought in the Fed- eral Court, that Court in the absence of an averment in the petition that the carrier has failed to post and file its tariff, is bound to presume that the carrier has complied with the law, and that the charge complained of is made thereunder. Where such is the ease relief can only be obtained through the Com- mission.* 1 Act to Regulate Commerce. Section 6. 2 Ibid. 3 Ibid. 4 Clement v. L. & N. R. Co. (1907), 153 Fed. Rep. 979. § 459] INTERSTATE TEANSPOETATION. 684 11 D. Caekibe's Taeief making Eefbeence to Taeifp of Com- peting Caeeiee does not Meet the Eequiebment of THE Law. The purpose in requiring rates to be published and posted is to inform the public of the rates of transportation at which shipments can be made.^ A notation in the tariff of one car- rier making reference to the tariff of some competing carrier, a tariff which may not be accessible to the prospective ship- per, cannot meet the requirements of the law that the rate charged shall be published and posted.^ H B. Impoetanoe of Peopee Publicity in Eates. The importance of a clear statement of rates and proper pub- licity of the same is forcefully stated in United States v. Illinois Terminal Railway Company,'' in which it is said: The chief object of the Act to Regulate Commerce is the prevention of discrimination. Carriers, being engaged in a public employment^ must serve all members of the public on equal terms. This was the doctrine of the common law. It has been explicitly stated and strength- ened by the successive acts to regulate commerce. The requirement of the Act that all rates should be published is perhaps the chief feature of the scheme provided for the effective outlawing of all dis- criminations. If this portion of the Act is not strictly enforced, the entire basis of effective regulation will be lost. Secret rates will in- evitably become discriminating rates. Whenever discriminating rates or practices are made public, a thousand forces of self-interest and of public policy will be set at work to reduce them to fairness and equality. § 459. Filing Tariffs, Classifications, Exception Sheets, Sup- plements, Concurrences, etc., with the Interstate Commerce Commission. 1IA. Mandate of the Act as to Piling of Eate Schedules WITH the Commission. The Act to Eegulate Commerce provides that every com- mon carrier subject to its provisions shall file with the Com- mission schedules showing all the rates and charges for trans- portation between different points on its own route and be- 5 Pitts & Son V. St. L. & S. F. Rd. Co. et al., 10 I. C. C. R. 684. 6 Ibid. 7 United States v. Illinois Terminal Railway Co., 168 Fed. Rep. 546. 685 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 459 tween points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate has been established.' If no joint rate over the through route has been established, the several carriers in such through route shall file as afore- said, the separately established rates and charges applied to the through transportation.^ The above provisions apply to all traffic, transportation, and facilities subject to the Act.^" T[ B. Concurrence of Participating Carriers. The concurrence of every carrier participating in the tariffs, etc., as stated in the preceding paragraph, must be on file with the Commission or accompany the tariff or supplement. ^^ See Section 480, post. 11 C. Filing by Proper Officer or Designated Agent. Tariffs, classifications, and exception sheets and supplements thereto shall be filed with the Commission by proper officer of the carrier or by an agent designated to perform that duty.^" ]\ D. Two Copies of all Tariffs must be filed with the Commission. Common carriers and agents are directed, in filing schedules in compliance with the statute, to transmit two (2) copies of each tariff, supplement, classification, or other schedule of rates or regulations for the use of the Commission, both copies to be included in one package and under one letter of trans- mittal." ^ E. How Tariffs filed with the Commission must be Addressed. All tariffs sent for filing with the Interstate Commerce Com- 8 See note 1, supra. 9 Ibid. 10 Ibid. 11 Rule 13, Tariff Circular 17-A. 12 Ibid. 13 Rule 14, Tariff Circular 17-A. § 459] INTERSTATE TKANSPOKTATION. 686 mission must be addressed, "Interstate Conunerce Commission, Bureau of Tariffs, "Washington, D. C."" 1[ F. Tariffs must be Deliveeed to the Commission free FROM ALL Charges or Claims for Postage. No tariff or supplement will be accepted by the Commission for filing unless it is delivered to the Commission, free from all charges or claims for postage.^" If Gr. Tariffs must be Delivered to Commission within full Statutory Time. All tariffs or supplements must be delivered to the Commis- sion within the full thirty days required by law before the date upon which such tariffs or supplements are stated to be effect- ive. No consideration will be given to or for the time during which a tariff or supplement may be held at the Postofifice De- partment because of insufHcient postage. ^^ For tariffs and supplements issued on short notice under spe- cial permission of the Commission full thirty days' notice is not required, but literal compliance with the requirements of the Commission for notice named in any permission granted by the Commission will be exacted and in accord with the policy and practice above outlined.^' T[ H. Disposition of Tariffs Eeceived by Commission too Late to give Statutory Notice. A tariff or a supplement that is received by the Commission too late to give the Commission the full thirty days' notice re- quired by law will be returned to the sender, and correction of the neglect or omission cannot be made which takes into account any time elapsing between the date upon which such tariff or supplement was received and the date of attempted correction.^* 14 Rule 14, Tariff Circular 17-A. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 687 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 460 In other words, when tariff or a supplement is issued and as to which the Commission is not given the statutory notice it is as if it had not been issued and full statutory notice must be given of any reissue thereof. No consideration will be given to telegraphic notices in computing the thirty days' notice re- quired.^" § 460. Posting of Tariffs or Rate Schedules. If A. Mandate of the Act as to Posting of Rate Schedules. The Act to Regulate Commerce requires that every common carrier subject to its provisions shall keep open to public in- spection schedules showing all the rates and charges for trans- portation on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established.^" If no joint rate over the through route has been established, the several carriers in such through route shall keep open to public inspection, as aforesaid, the separately established rates and charges applied to the through transportation.^^ Copies of such schedules are required by the Act to be kept posted for the use of the public in two public and conspicuous places in every depot, station or office of such carrier where freight is received for transportation, in such form that they shall be accessible to the public and can be conveniently in- spected." The above provisions apply to all traffic, transportation, and facilities subject to the Act.^^ HB. Purpose of the Provision of the Act Requiring Rate Schedules to be Posted. The comprehensive terms of the Act with regard to the post- ing of rate schedules at the stations and depots of carriers were 19 Rule 14, Tariff Circular 17- A. 20 See note 1, supra. 21 Ibid. 22 Ibid. 23 Ibid. § 460] INTEESTATE TRANSPORTATION. 688 apparently intended to serve the double purpose of thus afford- ing shippers and patrons the opportunity to ascertain for them- selves the lawful charges for the service sought by or rendered to them, and of also guarding against the adoption and use of tariff rates or rules v^ithout giving full public notice thereof. The requirement of the Act that rates shall be published is imposed in order that a shipper may ascertain by inspection exactly what it will cost him to transport his property, and also what the cost will be to his competitor of having his property transported.-* The clear purpose of the law is that every person may have reasonable opportunity to gain through proper effort on his part full knowledge as to the rates published and charged by carriers. In order that practicable and useful regulations and practice might be established, authority was vested in the Com- mission, as explained in Section ^61, post, to modify the terms of the Act in this particular.^' TI C. Rules Governing the Posting of Tariffs at Stations. At a general session of the Interstate Commerce Commission, held at Washington, D. C, on the 2d day of June, A. D. 1909, it formulated the following rules and regulations governing the posting of tariffs at stations : "Under the authority conferred upon the Commission by Section 6 of 1 he Act, to modify its requirements as to publish- ing, posting, and filing of tariffs, the Commission issues the fol- lowing order, in connection with which it must be understood that each carrier has the option of availing itself of this modi- fication of the requirements of Section 6 of the Act or of com- plying literally with the terms of the Act. If such modifica- tion is accepted by a carrier it must be understood that misuse of the privileges therein extended or frequent misquotation of rates on the part of its agents will result in cancellation of the privileges as to that carrier. It should also be understood that in so modifying the requirements of the Act the Commission 24 United States v. C. & A. Ry. Co. (1906), 148 Fed. Rep. 646; see also Pitts & Son v. St. L. & S. F. Rd. Co. et al. (1905), 10 I. C. C. R. 684. =5 Twenty-First Annual Report of I. C. C. (1907). 689 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 460 expects a continuation by carriers of the practice of furnishing tariffs to a reasonable extent to frequent shippers thereunder : "Every carrier subject to the provisions of the Act to Kegu- late Commerce (excepting those to vphieh special and specific modifications have heretofore been granted) shall place in the hands and custody of its agent or other representative at every station, warehouse, or office at which passengers or freight are received for transportation, and at which a station agent or a freight agent or a ticket agent is employed, all of the rate and fare schedules which contain rates and fares applying from that station, or terminal or other charges applicable at that station, including the schedules issued by that carrier or by its authorized agent and those in which it has concurred. Such agent or representative shall also be provided with all changes in, cancellations of, additions to, and reissues of such publica- tions in ample time to thus give to the public, in every case, the thirty days' notice required by the Act. "Such agent or representative shall be provided with facili- ties for keeping such file of schedules in ready-reference ■ order, and be required to keep said files in complete and readily accessible form. He shall also be instructed and required to give any information contained in such schedules, to lend as- sistance to seekers for information therefrom, and to accord inquirers opportunity to examine any of said schedules, with- out requiring or requesting the inquirer to assign any reason for such desire, and with all the promptness possible and con- sistent with proper performance of the other duties devolving upon him. He shall also furnish upon request therefor quota- tion in writing of rates via such carrier's line not contained in the tariffs on file at that station. Carrier may arrange for such agent to refer such requests to a proper officer of the company, but the quotation must be furnished within a reasonable time and without unnecessary delay. "Each of such carriers shall also provide and each of such agents or representatives shall also keep on file copies of the current I. C. C. issues of the indices of the tariffs of that carrier. "Each of such carriers shall also provide, either in its indices Eegulation — 44. § 460] INTERSTATE TRANSPOETATION. 690 of tariffs or in separate publication or publications, which must be kept up to date, be given I. C. C. numbers and be fDled with the Commission, an index or indices of the tariffs that are to be found in the files at each of its several stations or offices. Such index shall be kept on file and be open to inspection at each of such several stations or ofSces as hereinbefore provided. If such indices are prepared for a system of road or for a num- ber of stations or offices they must be printed and may be ar- ranged under a system of station numbers and alphabetical list of stations. If arranged for individual stations or offices they may be printed or typewritten. All such indices must be of size 8 by 11 inches. "Each of such carriers shall require its traveling auditors to check up each station's or office's file of tariffs at least once in each six months, unless it employs one or more traveling tariff inspectors who will make such inspections and checks. "Each of such carriers whose lines reach any of the cities in the following list, either over its own rails or by trackage rights, or by boat line, or by ferry, shall provide and maintain at each of said cities so reached by it, and at such additional points as may from time to time be designated by the Commis- sion, complete files of the tariff publications which it issues or is a party to, together with indices of same as hereinbefore re- quired : Alabama, Montgomery. Mississippi, Jackson. Arkansas, Little Rock. Montana, Helena. California, San Francisco. Nebraska, Omaha. Los Angeles. New York, New York. Colorado, Denver. Buffalo. Connecticut, Hartford. North Carolina, Charlotte. Florida, Jacksonville. Ohio, Cincinnati. Georgia, Atlanta. Cleveland. Illinois, Chicago. Oklahoma, Oklahoma City. Springfield. Oregon, Portland. Indiana, Indianapolis. Pennsylvania, Philadelphia. Iowa, Des Moines. Pittsburg. Louisiana, New Orleans. South Carolina, Columbia. Maine, Portland. South Dakota, Sioux Falls. Maryland, Baltimore. Tennessee, Memphis. Massachusetts, Boston. Chattanooga. Worcester. Texas, Fort Worth. Michigan, Detroit. Houston. Minnesota, St. Paul. Utah, Salt Lake City. Minneapolis. Virginia, Richmond. Missouri, St. Louis. Washington, Seattle. Kansas City. Wisconsin, Milwaukee. 691 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 460 "Each of such files shall be in charge of an employee who will give information and assistance to those who may wish to consult such file, and each such file shall be kept open and ac- cessible to the public during ordinary business hours and on business days. "Each of such carriers whose lines do not so reach any of the above-named cities shall also provide at least one point on its line a complete file of the tariffs which it issues or is a party to, together with indices of same as hereinbefore re- quired, which file will be in charge of an employee of the car- rier, who will give desired information and assistance to those who may wish to consult such file. This file of tariffs shall be open and accessible to the public during ordinary business hours and on business days. "If a subsidiary or small connecting line has authorized the parent company or principal connecting line to publish and file for it all 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 necessary for such subsidiary or small line to maintain an additional complete public file.^^ "Each of such carriers shall also provide and cause to be posted and kept posted in two conspicuous places in every sta- tion waiting-room, warehouse, or office at which schedules are so placed in custody of agent or other representative notices printed in large type, and reading as follows : " (A) Complete public file [or files] of this company's tariffs is [are] located at , in the city of [or the cities of and ]. The rate and fare schedules applying from or at this station and indices of this company's tariffs are on file in this oflBce, and may be inspected by ^ny person upon application and without the assignment of any reason for such desire. "The agent or other employee on duty in the ofl&ce will lend any assistance desired in securing information from or in inter- preting such schedules. "At exclusive freight stations or warehouses and at exelu- 26 Rule 86, Con. Rul. Bui. No. 4 (June 25, 1908). § 460] INTERSTATE TEANSPOETATION. 693 sive passenger stations or offices carriers may, under this order, place and keep on file only the freight or passenger schedules, respectively, and in such cases the posted notices may be varied to read: "The freight rate [or, passenger fare] schedules applying from or at [or, from] this station and index of this company's freight [or, passenger] tariffs are on file in this office, etc. "Bach of such carriers shall also require its agent or other employee in charge of tariffs at each point where complete public file. is not kept to post from time to time in a public place in waiting room or office a brief bulletin notice to the effect that rates from that station on certain commodities have been changed. "-' ^ D. Effect of Failure to Post Tariffs on the Legality OF Eate filed with Commission. In the case of Texas & Pacific Ry. Co. v. Cisco Oil Mill/^ the plea was presented that a rate schedule not having been law- fully posted in "two public and conspicuous places in every depot, waiting room, office," etc., the rate schedule itself was. unlawful and therefore not binding upon the carrier. The Supreme Court said : "The assumption (that 'no schedule rate was in existence'), it is insisted, is authorized because, it is asserted, the con- clusion that the schedule of rates became legally operative was not justified by the finding that such schedule had been filed with the Interstate Commerce Commission and copies thereof furnished to the freight officers of the railroad com- pany at Cisco and other points. The contention is without 27 In the Matter of Modification of the Provisions of Section 6 of the Act with Regard to Posting Tariffs at Stations, Issued at a General Session of the Interstate Commerce Commission held at its office in Washington, D. C, on the 2nd day of June, A. D. 1908. Compliance with the order as to all available tariffs was required not later than October 1, 1908, and full compliance in every instance not later than January 1, 1909. 28 Texas & Pacific Ry. Co. v. Cisco Oil Mill, 204 U. S. 449; 51 L. ed. 562, 27 Sup. Ct. 358. 693 FREIGHT TAKIFFS OR RATE SCHEDULES. [§ 460 merit. The filing of the schedule with the Commission and the furnishing by the railroad company of copies to its freight office incontrovertibly evidenced that the tariff of rates con- tained in the schedule had been established and put in force as mentioned in the first sentence of the section, and the rail- road company could not have been heard to assert to the con- trary. " The. requirement that schedules should be 'posted in two public and conspicuous places in every depot,' etc., was not made a condition precedent to the establishment and putting in force of the tariff of rates, but was a provision based upon the existence of an established rate, and plainly had for its object the affording of special facilities to the public for ascertaining the rates actually in force. To hold that the clause had the far-reaching effect claimed, would be to say that it was the intention of Congress that the negligent post- ing by an employee of but one instead of two copies of the schedule, or the neglect to post either, would operate to can- cel previously established schedule, — a conclusion impossible of acceptance. While Section 6 forbade an increase or re- duction of rates, etc., 'which have been established and pub- lished as aforesaid, ' otherwise than as provided in the section, we think the publication referred to was that which caused the rates to become operative ; and this deduction is fortified by the terms of Section 10 of the Act making it a criminal offense for a common carrier or its agent or a shipper or his employee improperly 'to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such common carrier.' " Any action based upon the failure of carriers to post its; tariffs as provided by Section 6 of the Act must be in accord- ance with the procedure defined in the statute.^* ^E. Lawfully Published Eate Binding on both Shipper AND Carrier. A tariff filed with the Commission in the manner prescribed 29Paxton Tie Co. v. Det. Southern Rd. Co. (1905), 10 I. C. C. R- 422; Rea v. M. & O. Rd. Co. (1897), 7 I. C. C. R. 43. § 461] INTEESTATB TRANSPORTATION. 694 by law and on statutory notice is a lawful tariff and lawfully binding on both carriers and shippers, though it was not posted at stations full thirty days prior to its effective date.^° A lawfully published rate speaks with equal authority to the shipper and the carrier, and both are chargeable with notice of the rate and the route over which a rate is made applicable. ^^ H F. Where Damages result to the Shipper on account of THE Failure of the Carrier to Post Eate Schedule. For full consideration of the above, see Section J^25, post. U G. Notice placed in Depot referring Shipper to Agent. The provisions of the sixth section of the Act to Eegulate Commerce are not complied with by carrier, posting a notice in the station or depot stating that the tariffs may be in- spected upon application to the carrier's agent. ^^ If H. Posting Tariffs on Export and Import Traffic. See Section 508, Paragraph E, post. § 461. Jurisdiction of the Interstate Commerce Commission over the Publication, Posting' and Filing of Tariffs or Rate Schedules. The Act to Regulate Commerce empowers the Commission to determine and prescribe the form in which schedules re- quired by the Act to be kept open to public inspection shall be prepared and arranged and to change the form from time to time as shall be found expedient.^^ The Act also authorizes the Commission in its discretion and for good cause shown, to allow changes upon less than statutory notice, or modify the requirements of the Act in respect to publishing, posting and filing of tariffs, either in particular instances or by a general order applicable to spe- 30 Pueblo Transportation Association v. Southern Pacific Co. et al., 14 I. C. C. R. 82. 31 A. J. Poor Grain Co. v. C. B. & Q. Ry. Co. et al., 12 I. C. C. R. 469. 32 See note 29, supra. 88 See note 1, supra. 695 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 462 cial or peculiar circumstances or conditions.'* In pursuance of this authority the Commission has promulgated a code of rules and regulations governing the issuance, publication and filing of tariffs and s&hedules of rates, as explained in a former section of this book. All these rules and regulations are treated of at length throughout this work, under this chapter and other appropriate headings. The Commission is an administrative body. The rates, regulations, and practices which it establishes within its jur- isdiction become rules of action which may and must enter into the business dealings of this country. It may be neces- sary to change from time to time these rulings as varying conditions require, but they should never be changed except upon due notice to the public, which is affected by them.*' § 462. Notice required for Publication of Rates and Changes therein. Tf A. Statutory Notice. Section 6 of the Act to. Regulate Commerce as changed by the Hepburn Amendment of 1906, provides that: "No change shall be made in the rates, and charges, or joint rates and charges, which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commis- sion and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection." The law as in force prior to the Hepburn i^mendment of 1906 provided that in case of advances in rates, the public and the Commission must be given ten days' previous notice thereof, and in cases of reduction in rates, three days' pre- 34 See note 1, supra. 35 Nebraska-Iowa Grain Co. v. U. P. R. R. Co., 15 I. C. C. R. 91. § 463] INTERSTATE TEANSPOETATION. 696 vious notice must in like manner be given. The amended law provides that in all cases of changes in rates and charges ap- plicable to interstate traffic, the public and the Commission shall be given thirty days' previous notice.^* TfB. Eate Changes Filed aito Published must become Ef- fective AND CAN ONLY BE CHANGED ON ThIKTY DaYS' NOTICE. The provisions of the Act quoted in the preceding para- graph plainly refer to rates which have already become effec- tive, and also applies the term "proposed changes" to rates which have not become effective. It follows that after no- tice of a change in rates has been filed and published the new rates must be allowed to go into effect, and cannot be with- drawn, canceled or superseded except upon notice filed and published for at least thirty days after the date when the rates have become effective.^'' A tariff may provide that it will expire upon a date speci- fied therein and which is at least thirty days subsequent to the date upon which it becomes effective, or a tariff may con- tain a notation that certain rates therein stated wiU expire upon a date therein specified which is at least thirty days subsequent to the date on which such rates become legally ef- fective, and this will be legal notice of the cancellation or withdrawal of such tariff or of such rates.^* Any tariff may be changed upon statutory notice of thirty days, or, under special permission from the Commission, upon shorter notice. Therefore a provision in a tariff that the tariff or any part of it will expire upon a given date is not a guaranty that the tariff or such part of it, will remain effective until that date. Such provision must be understood to mean that the tariff, or specified part of it, will expire upon the date named unless sooner canceled, changed, or extended in lawful way.'® 36 Twentieth Annual Report of I. C. C. (1906). 37 Rule 54, Tariff Circular 17-A. 38 Ibid. 39 Ibid. 697 FREIGHT TARIFFS OB RATE SCHEDULES. [§ 462 % C. Power op Interstate Commerce Commission to allow Changes on Less than Statutory Notice. The Act authorizes the Commission in its discretion and for good cause shown to allow changes upon less than thirty- days' notice, either in particular instances or by a general order applicable to special or peculiar circumstances and con^ ditions.^" This provision was inserted to meet unforeseen emer- gencies and to prevent any hardship that might result from the , requirement of the amended law.^^ The Commission in pursuance of this authority has not only permitted changes in rates on less than statutory notice in particular instances, but has issued general orders appli- cable to special conditions and circumstances, as will be noted from the following paragraphs and elsewhere. However, where the establishment of certain rates will to some extent affect the market of a given commodity, in order that dealers and producers may have an opportunity to adapt, their affairs to newly-created conditions, the Commission usu- ally orders such changes in rates to be provided for upon full statutory notice.*^ Carriers must comply fully with the requirements of the law respecting the filing, publication, and taking effect of proposed rates, unless upon application and for good causa shown the Commission in the exercise of the authority upon it, allow rates to be changed or withdrawn upon less than thirty days' notice, or by a formal order otherwise modify such re- quirements.*^ No regulation or rule of the Commission is authority to change rates or issue tariffs on less than statu- tory notice unless so specifically provided in the rule or regu- lation.** The Commission has stated, that, "The requirement for *o See note 1, supra. 41 See note 36, supra. 42 Big Blackfoot Milling Co. v. Northern Pacific Ry. Co. et al., 16 I. C. C. R. 173; Kalispel Lumber Co. et al. v. Great Northern Ry. Co. et al., 16 I. C. C. R. 164. 43 See note 37, supra. 44 Ibid. § 462] INTERSTATE TRANSPORTATION. 698 thirty days', notice of changes in rates is regarded by the Commission as a wise and healthy one, and it is not the policy or intent of the Commission to exercise the authority con- ferred upon it to grant exceptions to that requirement except under circumstances which fully justify such action and which do not involve probable discriminations or resultant rate dis- turbances. As improvement in tariffs progresses it is believed that the authority for establishing rates on less than statutory notice will be justified in a smaller number and a smaller per- centage of cases.*^ IT D. Eequests for Permission to Amend Tariffs on Less THAN Statutory Notice. As stated above the Act authorizes the Commission in its discretion and for good cause shown, to permit changes in tariff rates on less than statutory notice. The Commission stated that it is believed that this authority should be exercised only in instances where special or peculiar circumstances or conditions fully justify it.*' Confusion and complication must follow indiscriminate exercise of this au- thority. Applications to Commission. Such applications must be in proper form and over the signature of the president, vice-president, general traffic man- ager, assistant general traffic manager or general freight agent, specifying title.*' The Commission has requested that as far as possible these requests be sent by mail and not by tele- graph. Action will be taken only on receipt of the verified application.** If E. Where Full Notice was given by Competing Carriek. Desire to meet the rates of a competing road or line which has given the full statutory notice of change in rates will not 45 Twenty-Third Annual Report of I. C. C. (1909). 46 Rule 58, Tariff Circular 17-A. " Ibid. 48 Ibid. 699 FREIGHT- TARIFFS OE KATE SCHEDULES. [§463 of itself be regarded as good cause for allowing changes in rates on a notice of less than thirty days." ^F. Amejstdment of Joint Tariff on Less than Statutory Notice. A request from one carrier, party to a joint tariff for per- mission to amend such tariff on less than statutory notice necessarily raises a question of some doubt as to the wishes or concurrence of other interested carriers also parties to the tariff. It is desirable and proper that such permission given by the Commission should affect alike all parties to the tariff that is to be amended under it. The Commission there- fore ruled : Applications by Carrier or Agent Authorized to File the Tarijf. That when a carrier gives an agent authority to file tariff or tariffs and supplements thereto in its name, place and stead, or concurrence in tariff or tariffs and supplements there- to which another carrier or its agent may file thereunder, the agent or carrier to whom such authority or concurrence is given has, under the terms of the authority or concurrence, the power and the right to request, in the name and on behalf of the carriers participating in such tariff or tariffs per- mission to amend same on less than statutory notice. °° Bequest must come from one who issues the Tarijf. Such requests as to joint tariffs must be made by the agent or the carrier that is authorized to file the tariff and in mak- ing them form same as that prescribed for use of individual carrier shall be used, except that the request must state that it is made in the name and on behalf of all carriers that are parties to the tariff, and that formal authority to file the tariff, or formal concurrence in the tariff, is on file with the Commission from each of said carriers. ^^ Concurring Carriers Bound hy Act of Authorized Agent. Bequest will be signed and verified by the agent or officer *i> Rule 58, Tariff Circular 17-A. 50 Ibid. 51 Ibid. § 462] INTEESTATE TRANSPOETATION. T'OQ who makes it, and every carrier that has, by formal authority or concurrence, mad^ itself a party to such tariff will be held bound by the act of its agent under such authority or by its concurrence.^^ ^ Gr. Permission to Change Eates on Shoet Notice Limited to Emergency or Necessity. This authority will be exercised only in cases where actual emergency and real merit are shown. Clerical or typographi- cal errors in tariffs constitute good cause for the exercise of this authority, but every application based thereon must plain- ly specify the omissions or mistakes together with a full state- ment of the circumstances attending such omission or error and be presented with reasonable promptness after issuance of the defective tariff.^^ Tf H. Eeddction of Joint Eatb to Equal Sum of Locals. Where a joint rate or fare is in effect by a given route be- tween any points which is higher than the sum of the locals between the same points, by the same or another route, and such joint rate or fare has been in effect thirty days or longer, such higher joint rate or fare may, until further notice from the Commission, be change^ by reducing the same to the sum of such locals, but not otherwise, upon posting and filing with the Commission one day in advance a supplement to or a reissue of the tariff in which the joint rate or fare so reduced appears, which supplement or reissue shall show the reduced rate or fare ; shall bear notation that it is effective on less than statu- tory notice ' ' by authority of Rule 56 of Tariff Circular 17-A ; ' ^ shall show on title page, or in connection with such item, by identifying references and I. C. C. numbers, the tariffs that contain the locals which make up the new joint rate or fare; except that, if the joint rate so reduced is contained in a strict- ly class rate tariff, the reduced rate will be published in a, new commodity tariff or in a supplement to or reissue of a tariff which contains commodity rates and in which all car- 62 Rule 58, Tariff Circular 17-A. 53 Ibid. 701 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 462 riers whose lines make up the route over which the rate ap- plies have concurred, and which is issued by the same carrier or agent that issued the tariff which contained the joint rate so reduced. Such tariff, supplement or reissue must bear on its title page, or in connection with such item, the notation: "Issued under authority of Rule 56, Tariff Circular 17-A. The joint rate [or, rates] hereby reduced appears in Tariff, I. C. C. No , item [or, page] . . ., and the factors from which the new rate herein shown as equaling the sum of the locals are found in tariff, I. C. C. No , item [or, page] , and tariff, I. C. C. No , item [or, page] " Except when a new commodity rate is established to super- sede a higher class rate this rule limits the authority to change rates or fares thereunder to changes that are announced in supplements or to reissues of the tariffs in which the joint rates or fares so reduced appear, and each such supplement or reissue shall show specifically on its title page the authority under which it is made effective on less than statutory notice and definite and distinct reference to the locals which are used to make up the reduced joint rate or fare.''* Tf I. Tariffs naming Eates to and from Points on Newly Constructed Lines of Egad, Including Branches AND Extensions of Existing Eoads. On newly constructed lines of road, including branches and extensions of existing roads, individual rates and also joint rates may be established in the first instances by the carrier owning or operating such newly constructed line to and from points on such new line by posting a tariff of such rates and filing the same with the Commission one day in advance. Such tariff must bear notation that it applies to stations on newly constructed line to or from which no rates have heretofore applied, and give reference to this rule. Tar- iffs or supplements to tariffs issued by other carriers or joint agents establishing the rates to or from or via such newly con- structed line may be issued only under statutory notice or 54 Rule .56, Tariff Circular 17-A. § 463] INTEESTATE TEANSPOETATION. 702 special permission for shorter time. It will be the Commis- sion's policy to grant such permissions in such instances so as to give the carrier and shippers fullest efficiency of such new lines, and in connection with the preparation of such joint publications there is ample time within which to secure such permission.^^ The above rule applies to newly constructed lines only.^^ 1j J. Taeiefs Coveeing Teanspoetatiout of Ciecus Outfits. The Act to Regulate Commerce as amended June 29, 1906, applies to the transportation of circuses and other show out- fits, but the Commission recognizes the peculiar nature of this traffic and the difficulty of establishing rates thereon in advance of shippers' request describing the character and volume of the traffic offered, and has therefore entered a gen- eral order authorizing carriers to establish rates on circuses and other show outfits by tariff to become effective one day after filing thereof with the Commission, and relieving them from the duty of posting such tariffs in their stations. Such tariffs may consist of a proper title page reading "as per copy of contract attached," and to it may be attached a copy of the contract under which the circus is moved. As far as practicable general rules or regulations governing the fixing of such rates should be regularly published and filed." § 463. Rules and Regulations Affecting Rates, such as Switch- ing, Terminal, Draya,ge, Refrigeration, Car-Service, Storage and Elevation Charges, and Diversion, Re- consignment and Transit Privileges, and Allow- ances to Shippers must be shown in Tariffs. \ A. Mandate of the Statute. The Act to Regulate Commerce states that the schedules printed in accordance with its provisions by common carriers shall state separately all terminal charges, storage charges, 55 Rule 57, Tariff Circular 17-A. 56 Ibid. 5T Rule 63, Tariff Circular 17-A. 703 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 463 icing charges, and all other charges which the Commission may require, all privileges or 'facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of the rates and charges, or the value of the service rendered to the shipper or con- signee.^* Carriers separately state the terminal charges for delivering live stock beyond their own lines to the Union Stock Yards in Chicago, as required by the Act to Regulate Commerce, as amended June, ^1906, where their tariff schedules inform shippers that the live stock rate for transportation to Chicago, apply only to deliveries at the carriers' own yards and that, for transportation to the Union Stock Yards, a stated addi- tional charge will be made, the amount of such charge being entered, not upon the general freight charges of the companies, but as a separate item.^* 1[B. General Eules of the Commission. Rules or regulations which in any wise change, affect or determine any part or the aggregate of a carrier's rates, fares or charges must be shown separately upon the carrier's posted schedules of rates, fares and charges ; and any such rules or regulations promulgated by the carrier in circulars issued independently of its rate schedules and without making reference thereto are not lawfully in force. Rules and regulations which, if enforced, would result in changing or affecting rates or charges shown on published schedules must be notified to the public for the time required by law for the other rate changes. The notice should set forth the changes proposed to be made in the schedules then in effect, and such changes must be shown by printing new schedules or be plainly indicated upon the schedules in force at the time.^" Any practice of a carrier which operates to alter, modify 58 See note 1, supra. 59 r. C. C. V. Stickney et al. (1909), 215 U. S. 66, affirming 164 Fed. Rep. 638. «o Suffern, Hunt & Co. v. I. 0. & W. Ry. Co. et al., 7 I. C. C. R. 255. 4 463] INTEESTATE TRANSPOKTATION. 704 or change its rates must be fully and clearly set forth upon its published tariffs of rates and charges to be affected thereby.'^ The Interstate Commerce Commission, by virtue of its power to modify the requirements of the Act as to the publication, posting and filing of tariffs and to determine and prescribe their form, has made the following rulings: Each carrier must publish, "with proper I. C. C. numbers, post, and file separate tariffs which shall contain in clear, plain and specific form and terms all the terminal charges and al- lowances, such as arbitraries, switching, .icing, storage, ele- vation, diversion, reconsignment, transit privileges, and car service, together with all other privileges, charges, and rules which in any way increase or decrease the amount to be paid on any such shipment as stated in the tariff which contains the rate applicable to such shipment, or which increase or decrease the value of the service to the shipper. Such tariffs must stipulate clearly the extent of such privileges and the charges connected therewith, and shall also state whether or not the rate published by the initial carrier from point of origin to ultimate destination will apply. If the through rate does not apply it must be as of the date of shipment from point of origin."^ "If such privilege is granted or charge is made in connec- tion with the rate under which the shipment moves from point of origin, the initial carrier's tariff which contains such rate must also show the privilege or the charge or must state that shipments thereunder are entitled to such privileges and sub- ject to such charges according to the tariffs of the carriers granting the privileges or performing the service, as 'lawfully on file with the Interstate Commerce Commission.' '"*^ 81 Spillers & Co. v. L. & N. Rd. Co. (1899), 8 I. C. C. R. 364, follow- ing Colorado Fuel & Iron Co. v. Southern Pac. Co., 6 I. C. C. R. 488, and Suffern, Hunt & Co. v. I. D. & W. R. Co., 7 I. C. C. R. 255; see also Amer. Warehousemen's Association v. 111. Cent. Rd. Co. et al. (1898), 7 I. C. C. R. 556. 62 Rule 10, Tariff Circular 17-A. «3 Ibid. 'J'05 FREIGHT TAEIFFS OR RATE SCHEDULES. [§ 463 ^ C. Eecoiv'signment Privileges and Eules. The privilege of reconsignment is of value to the shipper, and in order to avoid discrimination it is necessary for the carrier that grants such privilege to publish in its tariff that fact together with the conditions under M^hich it may be used and the charge that will be made therefor. Such rules should be stated in terms that are not open to misconstruction."* S9me carriers do not count a change of consignee which does not involve a change of destination as a reconsignment, while others do consider it a reconsignment and charge for it as such."^ The Commission holds the view that without specific qualifications, the term "reconsignment" includes changes in destination, routing, or consignees."" If a carrier wishes to distinguish between such changes in its privileges or charges it must so specify in its tariff rules. "^ The privileges embodied in a separate reconsignment tariff issued by one carrier cannot be availed of, or applied to move- ments, under a joint tariff to which that carrier and two others are named as parties, unless the latter tariff, by express refer- ence to the former, so provides."' 1[ D. Terminal Charges. The rates which carriers are required by the statute to publish, tile and adhere to without deviation cover, not merely the carriage, but services in receiving and delivering the property as well."' It is not unlawful for a carrier in its schedule of rates to segregate its rates so as to make a distinct charge for trans- portation and a separate charge for terminal service.''" How- ever, where a carrier undertakes to carry freight at a given 64 Rule 74, Tariff Circular 17-A. 65 Ibid. 66 Ibid. 6T Ibid. 68 Washington Broom & W. W. Co. v. C. R. I. & P. Ry. Co. (1909), 15 I. C. C. R. 219. 69 Phelps & Co. V. T. & P. Ry. Co., 6 I. C. R. 36. 70 1. C. C. V. C. B. & Q. Ry. Co. (1902), 186 U. S. 320; 22 Sup. Ct. Rep. 824; 42 L. ed. 1182. Eegulation — 45. § 463] INTERSTATE TEANSPORTATIOKT. 706 rate to a certain point, the presumption is that such rate in- cludes adequate compensation for terminal services.'^ T[ E. Eefeigeeation Charges. "When charges for refrigeration are applied in the trans- portation of perishable freight, such charges should be pub- lisjied and filed with the Commission and adhered to exactly as all other charges for transportation are published and ob- served. The same considerations of justice and public policy, which require this in case of the freight rate, apply to the refrigeration charge.'^ A railroad company engaged in interstate commerce in its schedules of rates filed with the Interstate Commerce Com- mission pursuant to the Act to Regulate Commerce, may state separately its rates for the carriage of ordinary commodities of a particular class and its charge for icing cars when com- modities are of a character requiring to be shipped under refrigeration.'^ The Commission has the same jurisdiction to inquire into the justice and reasonableness of refrigeration charges as of any other charge for the transportation of pas- sengers or property.'* 1[ F. Tariffs Ebgulating Switching or Terminal Charges BETWEEN Carriers. See Section ^93, post. TI G. Demurrage on Interstate Shipments. In General. The Act to Eegulate Commerce requires that carriers shall publish, post, and file "all terminal charges * * * which in any wise change, affect, or determine * * # the value 71 1. C. C. V. C. B. & Q. Ry. Co., 186 TJ. S. 320, 22 Sup. Ct. 824, 42 L. ed. 1182. 72 In the Matter of Transportation and Refrigeration of Fruit, etc., 10 I. C. C. R. 360; same, 11 I. C. C. R. 129. 73 Knudsen-Ferguson Fruit Co. v. Mich. Cent. R. Co. (1906), 148 Fed. Rep. 968, 79 C. C. A. 46; writ of certiorari denied by Supreme Court in 204 U. S. 671, 51 L. ed. 672, 27 Sup. Ct. Rep. 786. 7* In the Matter of Charges for Transportation and Refrigeration of Fruit (1905), 11 I. C. C. R. 129. 707. FEEIGHT TARIFFS OE RATE SCHEDULES. [§ 463 of the service rendered to the * * * shipper or consignee," and all such charges become a part of the ' ' rates and charges ' ' which the carriers are required to demand, collect, and retain. Such terminal charges include demurrage charges. '° On March 16, 1908, the Commission decided that demurrage rules and charges applicable to interstate shipments are gov- erned by the Act to Regulate Commerce, and therefore are within its jurisdiction and not within the jurisdiction of State authorities. Any other view would open a wide door for the use of such rules and charges to effect the discriminations which the Act prohibits.'* Demurrage rules and charges must be observed as strictly as transportation rules and charges. The Commission cannot, therefore, recognize as lawful any rule governing demurrage, the application of which is dependent upon the judgment of some person, or which provides for exemption therefrom in cer- tain exigencies in the creation of which the carrier has no part.''^ Failure of Carriers to make Reference in Tariff of Rates to Car- Service Tariff. In a particular case^^ the car-service tariff, which named the demurrage rules, was properly filed and posted and was well known to the shippers. It was enforced against the public gen- erally. The tariff of rates did specify tliat the movement of traffic thereunder would be subject to car-service rules, and only those filed and published, therefore, could apply. The mere failure to refer by number to the car-service tariff in the tariff of rates could in no way relieve the complainant shipper from the payment of demurrage. If H. Publication of Transit Privileges and Eules and Eegulations Affecting the same. The statute requires that the established schedules shall show 75 Rule 75, Tarlfe Circular 17-A. 78 Ibid. 77 Ibid. 78Cudahy Packing Co. v. C. & N. W. Ry. Co. (1907), 12 I. C. C. R. 446. § 463] INTERSTATE TEAJTSPOETATION'. 708 "all privileges or facilities granted or allowed and any rules or regulations which in any wise affect * * * the value of the services rendered to the * * * shipper or con- signee."''^ Privileges such as milling, sorting and mixing or blending freight in transit "materially affect the value to the shipper and the cost to the carrier of the transportation and should be shown in the published tariffs.^" A transit privilege being of value to the shipper, in order to avoid discrimination it is necessary for a carrier that grants such privilege to pub- lish in its tariffs that fact, together with the conditions under which it may be used and the charge that will be made there- for. Such rules should be stated in terms that are not open to misconstruction.*^ If stopover privileges are granted for any purpose, all the facts and circumstances connected therewith should be clearly stated in the published tariff, so that the public generally may enjoy their benefits.*^ Whether the transit privilege is granted to grain, cotton, or other commodities, the fact should be plainly stated upon the tariff, together with the conditions upon which the privilege will be allowed.*^ 1[ I. Absoeption of Switching Chaege. No switching or other terminal charge should be allowed by a carrier except under a plain and specific tariff provision therefor.^* ^J. EuLES Prbsceibing Minima and Maxima Weights and Regulations Affecting same must be Stated in Caeeiees' Schedule. The sixth section of the Act to Regulate Commerce provides that every common carrier subject to its provisions shall keep 79 See note 1, supra. soShlel & Co. V. 111. Cent. Rd. Co. et al. (1907), 12 I. C. C. R. 210. 81 See note 64, supra. 82 Re Rates and Practices of M. & O. Rd. Co. (1903), 9 I. C. C. R. 373. 83 Central Yellow Pine Association v. V. S. & P. Rd. Co. et al. (1904), 10 I. C. C. R. 173. 84 Leonard et al. v. C. M. & St. P. Ry. Co. (1907), 12 I. C. C. R. 492. 709 FREIGHT TAEIPFS OE EATE SCHEDULES. [§ 463 open to public inspection schedules showing the rates and fares and charges which are in force at the time; that the "sched- ules posted as aforesaid by any common carrier shall contain the classification of freight in force and shall also state sepa- rately the terminal charges, and any rules or regulations which in any wise affect or determine any part of the aggregate of such aforesaid rates, fares, and charges. ' ' Rules fixing maxima and minima weights on commodities come within this statute. The railroads contended that the word "separately" authorizes the issuance of circulars containing rules or regulations inde- pendently of and without reference to the rate sheets. In that part of Section 6, the Act specifies what the schedules of rates, fares, and charges shall contain, and what they shall state, but separate schedules are not thereby authorized for rules or regulations, nor for terminal charges. All that the word "separately" can be construed to mean in the connection in which it is used, is that the transportation charges and the terminal charges and any rules or regulations, etc., shall be separately stated on the schedules of rates, fares, and charges. Whether a rule or regulation concerning transportation can lawfully be established by the issuance of a schedule or docu- ment which neither prescribes rates, fares, or charges, nor refers to any rate or fare schedule, depends upon the nature of the rule or regulation. If rules or regulations "in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges," they must be stated upon the schedules of such rates, fares, and charges. This is the plain reading of the statute and to any one at all familiar with the large number of rate sheets in force for interstate trans- portation from the great majority of railroad stations the necessity of connecting the rate with any rule or regulation affecting that rate is obvious.^" The minimum weight upon which carload rate is based is a part of the rate, because the charges on the shipment are deter- mined by such minimum weight. The publication, posting, and filing of the rate and of the minimum weight are therefore 85 See note 60, supra. § 463] INTERSTATE TEANSPORTATION. 710 equally necessary, and it is also equally necessary that both be observed.** UK. Stoeagb Chakges. The storage of freight is of considerable importance, and where goods are held in warehouses for part-lot distribution is of great value to shippers, and especially so to the class of manufacturers or dealers largely engaged in supplying those staple commodities which are in common demand through the country.^' To the extent of its value such privilege lessens the aggregate compensation paid by shippers to carriers for transportation and terminal services.'* The charges made for such service, and all rules and regulations which in any wise change, affect, or determine such aggregate compensation, are plainly required by the statute to be shown by the carriers upon their published rate schedules.'* Storage rates and regulations enforced by common carriers subject to the Act to Eegulate Commerce must be published at their stations and filed with the Commission."" The privilege embodied in a separate storage tariff issued by one carrier cannot be availed of, or applied to movements, un- der a joint tariff to which that carrier and two others are named as parties, unless the latter tariff by express reference to the former so provides. °^ T[L. Deatage oe Teansfee Charges. The Act does not bar a carrier from providing for costs of transfer in making delivery to a certain carrier, but if it so provides it must publish and file a tariff showing where the transfer will be made, the kind of transfer service required, and the charges to be exacted therefor.'^ se Rule 66, Tarift Circular 17- A. 87 American Warehousemen's Association v. 111. Cent. Rd. Co. (1898), 7 I. C. C. R. 556; see also Penna. Millers' State Association v. P. & R. Ry. Co. et al., 8 I. C. C. R. 531. 88 Ibid. 89 Ibid. 80 Blackman, Jr., v. Southern Ry. Co., 10 I. C. C. R. 352. 91 See note 68, supra. 92 Schwager & Nettleton v. Gr. Nor. Ry. Co. (1907), 12 I. C. C. R. 521. 711 FREIGHT TARIFFS OR HATE SCHEDULES. [§ 463 A shipper is entitled to notice of a transfer charge other than one coming to him through the collection of the charge from his consignee, and as he is not obliged to follow his shipment and make the transfer himself, he is entitled to the protection afforded by a published definite rate.^' T[ M. Allowances to Shippers. Allowances to Owners of Tank Cars. Mileage or other allowance paid by carriers to the owners of private cars, such as tank cars, refrigerator cars, stock cars, etc., should be published and filed the same as all other rules or regulations affecting rates. Allowance for Grain Doors Furnished by Shippers. A carrier may not lawfully reimburse shippers for the ex- pense incurred in attaching grain doors to box cars unless ex- pressly so provided in its tariff. There is a material difference between the furnishing of service or facilities to carriers by one who is not a shipper and the furnishing of the same facili- ties or services by one who is a shipper.^* Allowances for Car-Door Boards used in the Transportation of Coal in Stock Cars. The requirement of Section 6 that the schedule posted and filed shall contain ' ' any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee," plainly re- quires publication of allowances of this character. The carrier could at no time miake an allowance at variance with its tariff, and no private understanding or agreement be- tween parties can alter the requirement of the statute in this respect.*' 93 Schwager & Nettleton v. Gr. Nor. Ry. Co., 12 I. C. C. R. 521. 94 Rule 78, Con. Rul. Bui. No. 4 (June 1, 1908). 95 Victor Fuel Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. R. 119. §§ 464-i66] INTERSTATE TRANSPORTATION. 713 Expense Incurred in Preparing Cars for Shipments can not be paid by Carrier in the absence of Tariff Provisions therefor. Not having box cars available for the movement of machin- ery, cattle ears were supplied at the request of the shipper, who lined them with tar paper and felt in order to protect his shipments :^rom weather conditions. Held, That in the absence of tariff authority the carrier cannot lawfully reimburse the shipper for the expense so incurred.'* § 464. Carriers Prohibited from Engaging in Transportation subject to the Act to Regulate Commerce unless they file and publish Rates and Charges thereon. No carrier is permitted to engage in the transportation of property, as defined by the Act, unless the rates and charges upon which the same is transported by said carrier have been filed and published in accordance with the provisions of the Act." § 465. Tariffs Distinguishing between Shipments handled by Steam and Electrical Power. An amendment to a tariff provided : ' ' The above rates will only apply on shipments by steam power and will not apply when handled by electriQal power." Held, That the limitation of the rates to shipments handled by steam power is unlawful and must be eliminated from the tariff.'* § 466. Phraseology used in Tariffs. If A. Tariffs must be Plain and Intelligible. The Act to Eegulate Commerce contemplates not only just and reasonable rates, but plain and intelligent rates. Complication, intricacy, and involution invite, if they do not intend, injustice, inequality and discrimination. A rate or a tariff published and filed with the Commission oeRule 19, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 87 See note 1, supra. 88 Rule 2, Con. Rul. Bui. No. 4 (Nov. 4, 1907). 713 FEEIGHT TARIFFS OR RATE SCHEDULES. [§ 466 cannot be held to be legal merely because of that fact ; it must also be plain and intelligible."^ The only satisfactory method of publishing rates is to defi- nitely state the charges fixed between points clearly specified without burdening or confusing the public with involved cal- culations, or with scrutinizing a series of supplements to deter- mine whether a particular rate has been changed since the original tariff was issued. ^''° It is the duty of common carriers, under the Act, to print, publish and file tariffs showing rates which are so simplified that persons of ordinary comprehension can understand them; and a notation in the tariff of one carrier making reference to the tariff of some competing carrier does not meet the require- ments of the law that a rate charged shall be published and filed.i" The Commission in construing the meaning of the phrase "import traffic" stated that, "whatever is within the meaning of the term 'import traffic' must necessarily be a matter of construction, and in arriving at such construction the point of origin of the traffic, the method and mode of transportation into this country, and the point of destination must be consid- ered. The phrase 'import traffic' is so vague and indefinite as to invite rather than prevent numerous controversies as to what is and what is not covered thereby. ' ' The application of a tariff should be stated so clearly as to prevent misinterpretation, misunderstanding, or misconstruc- tion. 'Import traffic' may be import traffic when taken from the ships' side, and it may be import traffic after it has been stored at the port of entry for a substantial period, and it might be claimed still to be import traffic after it had been merchan- dised at the port of entry. It is therefore essential if misunder- standings and misinterpretations are to be avoided, that the carriers shall clearly define the phrase ' import traffic ' and simi- lar phrases when used in their tariffs.""^ 99 Porter et al. v. St. L. & S. P. R. R. Co. et al., 15 I. C. C. R. 1. 100 Colorado Fuel & Iron Co. v. Southern Pacific Co. et al. (1895), 6 I. C. R. 488. 101 See note 5, supra. 102 Payne et al. v. M. L. & T. R. & S. Co. et al., 15 I. C. C. R. 185. § 466] INTEESTATB TRANSPOHTATION. 714 ^ B. Tariffs are to be Construed according to their Language. The law compels carriers to publish and post their schedules of charges upon the theory that they will be informative. A shipper who consults them has a right to rely upon their ob- vious meaning. He cannot be charged with knowledge of the intention of the framers or the carrier's canons of construction or of some other tariff not even referred to in the one carrying the rate. The public posting of tariffs will be largely useless if the carrier's interpretation is to be dependent upon tradition and the arbitrary practices of a general freight office. The Commission has long since repudiated the suggestion that railroad officials may be looked to as authority for the con- struction of their tariffs i^"^ in which Judge Cooley stated that : "A classification sheet is put before the public for its informa- tion. It is supposed to be expressed in plain terms, so that the ordinary business man can understand it, and, in connection with the rate sheets, can determine for himself what he can be lawfully charged for transportation. The committee who prepared this classification have no more authority in construc- tion than anybody else, and they must leave the document, after they have given it to the public, to speak for itself. ' ' Tariffs are construed according to their language. The Com- mission refuses to recognize any other criterion. '^''* 1[ C. Technical Terms and Phrases, as used in Tariffs, Defined. The term "per ton" and "net ton," when used in tariffs, will, in the absence of qualifying words, be held to mean a ton of 2,000 pounds. The terms "gross ton" and "long ton" and "ton of 2,240 pounds" will be held to mean a ton of 2,240 pounds. ^°^ 103 Hurlburt v. L. S. & M. S. Ry. Co., 2 I. C. C. R. 122; 2 I. C. R. 81. 104 Newton Grain Co. v. C. B. & Q. Rd. Co. et al., 16 I. C. C. R. 341. 105 Rule 131, Con. Rul. Bui. No. 4 (Jan. 4, 1909). 715 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 466 Tl D. Limiting use of the Terms "Common Points/' "Grain Products/' and Similar Phrases in Tariffs. The terms "common points," " Southeastern territory," or similar terms shall not be used in any tariff for the purpose of indicating the 'points from or to which rates named therein apply, unless a full list of such points is printed in the tariff or specific reference is given to the I. C. C. number of the issue that contains such list.^"' The terms "grain products," "forest products," "petro- leum and its products," "cottonseed products," or similar terms must not be used in any tariff for the purpose of indi- cating the articles to which the rates apply, unless a full list of the articles intended to be included in and covered by such terms is printed in the tariff or specific reference is given to I. C. C. number of the issue that contains such list.^°^ ^ E. Improper and Unlawful Tariff Provisions. A carrier 's tariff contained the following rule : "The Eailway reserves the right to route through to destination property delivered to it for transportation at the through rates shown in this tariff ; and every carrier par- ticipating in such transportation shall have the right, in cases of necessity, including floods, embargoes, and blockades, to forward said property by any carrier between the point' of shipment and the point to which the rate is given. All addi- tional risks and increased expense incurred by reason of change in route in eases of necessity, including floods, embargoes and blockades, shall be borne by the owner of the goods and be a lien thereon." Held, That this rule is improper and unlawful.^"* A tariff contained a rule providing that : "When freight cannot be disposed of at a point held for sufficient amount to realize by sale both freight and car service, or storage charges, demurrage charges may be refunded, waived, or canceled." 106 Rule 6, Tariff Circular 17-A. 107 Ibid. 108 Rule 146, Con. Rul. Bui. No. 4 (Feb. 8, 1909). § 467] INTERSTATE TRANSPORTATION. 716 Reld, That the performance of a transportation service de- termines the obligation of the carrier to collect and of the ship- per to pay the published rates therefor and no subsequent fact^ having no relation to the service, can lavpfuUy be made the basis for a refund or other departure from such rules.. The provision is therefore unlawful per se and cannot be accepted as authority for a waiver, refund, or cancellation of the tariff charges even as to a shipment made while the provision was contained in the published tariff.^"^ § 467. Different Kinds of Freight Tariffs Defined. 1[ A. Local Tariffs. Local tariffs apply only to traffic between points on the lines. of the issuing carrier.^^" 1[ B. Joint Tariffs. Joint tariffs are those which contain or are made up from rates that extend over the lines of two or more carriers and that are made by agreement between such carriers.^^^ They imply an agreement between two or more roads for through carriage at a single aggregate charge which is usually less than the sum of their separate charges."^ They contain rates apply- ing to traffic between points on the lines of two or more car- riers. ^^^ Tf C. Basing Tariffs. ^" Basing tariffs contain rates to or from certain specified bas- ing points where no specific through or joint rate exists, to- gether with definite rules and regulations as to the use and application of such basing rates. ^^* 1|D. Interdivision Tariffs. Interdivision tariffs apply only to traffic between points on 109 Rule 145, Con. Rul. Bui. No. 4 (Feb. 8, 1909). 110 Rule 29, Tariff Circular 17-A. 111 Tariff Circular 17-A. 112 Ninth Annual Report of I. C. C. (1895). lis See note 110, supra. 11* Ibid. 717 FREIGHT TARIFFS OE RATE SCHEDULES. [§§468,469 different divisions of the line of the issuing carrier.^^^ They may, however, under proper concurrences, shown in the tariff, include rates to and from points on directly connecting sub- sidiary lines. ^^^ TI E. Proportional Tariffs. Proportional tariffs establish rates of carriage which are lower between given points when the traffic has undergone transportation before reaching the first point, or is to be fur- ther transported after reaching the second, than the rates charged on like traific which originates at one of such points and terminates at the other.^" U p. Distance Tariffs. A distance tariff is made up of a graduated scale of rates applying usually between points in an undeveloped or a local territory, which are based purely on distance. § 468. Tariffs must be Printed. The Act requires that all schedules of rates shall be plainly printed in large type.^^* The Commission has ruled that all tariffs must be printed on hard calendered paper of good quality from type of size not less than 6-point full face. Stereotype, planograph, or other printing-press process may be used. Alterations in writing or erasures must not be made in tariffs before filing."" Reproductions by hectograph or similar process, typewritten sheets, or proof sheets must not be used for posting or filing.^^" § 469. Form and Size of Freight Tariffs. All tariffs must be in book, sheet, or pamphlet form, and of size 8 X 11 inches. Loose-leaf plan may be used, so that changes can be made by reprinting and inserting a single leaf.^^^ 115 Rule 29, Tariff Circular 17-A. lie Ibid. iiT In the Matter of Form and Contents of Rate Schedules, 4 I. C. R. 698; 6 I. C. C. R. 267. lis See note 1, supra. 119 Rule 1, Tariff Circular 17-A. 120 Ibid. 121 Rule 2, Tariff Circular 17-A. § 470] INTEESTATE TEANSPOETATION. 718 § 470. Information to be shown on Title^Page of every Freight Tariff. The Commission, has ruled that the title-page of every freight tariff shall show the following information : Tf A. Name of Caeeiee. The name of issuing carrier, carriers, or agent.^^'' U B. I. C. C. Numbee and Cancellations. I. C. C. number of tariff in bold type on upper right-hand corner, and immediately thereunder, in smaller type, the I. C. C. number or numbers of tariffs canceled thereby. If the num- bers of canceled tariffs are so large as to render it impracticable to thus enter them on the title-page, they must be shown imme- diately following the table of contents, and specific reference to such list must be entered on the title-page immediately under the I. C. C. number of the tariff. Serial numbers of carriers may, if desired, be entered below the upper marginal line of the title-page. Separate serial I. C. C. numbers will be used for freight and passenger tariffs.^^^ Tl C. Kind of Taeiff. Whether tariff is local, joint, proportional, or a combination of the same; and whether class, commodity, or a combination of both.i^* 1[ D. Teeritoet. The territory or points from and to which the tariff applies, briefly stated.^^^ ]\ E. Eefeeence to Govbening Classification and Excep- tion Sheets. Reference by name and I. C. C. number to the classification and exception sheets governing the tariff. Following form will be used : 122 Rule 3, Tarife Circular 17-A. . 123 Ibid. 124 Ibid. 125 Ibid. 719 PKEIGHT TARIFFS OE RATE SCHEDULES. [§ 470 "Governed, except as otherwise provided herein, by the Classification, , I. C. C. No supple- ments thereto and reissues thereof; and by exceptions to said classification I. C. C. No supplements thereto and reissues thereof." A tariff is not governed by a classification or exceptions thereto except when and to the extent stated on the tariff.^^" If P. Dates. Date of issue and date effective. Any tariff may be changed upon statutory notice of thirty days, or, under special per- mission from the Commission, upon shorter notice. '^^^ 1[ G. BxPiEATioN Notice. A provision in a tariff that the same, or any part thereof, will expire upon a given date, is not a guaranty that the tariff, or such part of it, will remain effective until that date. The Commission considers such expiration notices undesirable, as many complications have arisen through their being over- looked. Such provision, if used, must be understood to mean that the tariff, or specified part of it, will expire upon the date named unless sooner canceled, changed, or extended in lawful way. On such tariffs the term "Expires , unless sooner canceled, changed, or extended," must be used.^^^ ^ H. Statutoet Notice or Authoeitt foe Shoeter Notice MUST BE Shown. The Act to Regulate Commerce requires th'at all changes in rates, or in rules that affect rates, shall be filed with the Com- mission at least thirty days before the date upon which they are to become effective. Manifestly it is impossible for the Commission to check the items in tariffs to determine whether or not the statutory notice has been given. The title page of every tariff or supplement must show full thirty days' notice, except as otherwise provided. ^^' 126 Rule 3, Tariff Circular 17- A. 127 Ibid. 128 Ibid. 129 See note 13, supra. § 471] INTERSTATE TRANSPORTATION. 730 On every tariff or supplement that is issued on less than thirty days' notice by permission or order or regulation of the Commission, notation that it is issued under special permission or order of the Interstate Commerce Commission, ' ' No , of [date] , or by authority of Rule ...., Tariff Circular [give current number], or by authority of de- cision of the Commission in ease No "^'° T[ I. Notice of Supplements: On the upper left-hand corner of the tariffs of less than 5 pages and on tariffs issued in loose-leaf form, the words: "No supplement to this tariff will be issued except for the pur- pose of canceling the tariff." On tariffs containing 5 and not more than 16 pages, inclusive: "Only one supplement to this tariff will be in effect at any time." On tariffs containing 17 and not more than 111 pages, inclusive: "Only two sup- plements to this tariff will be in effect at any time." On tariffs containing over 111 pages: "Only three supplements to this tariff will be in effect at any time. "^^^ 1[J. Officer Issuing Tariff. Name, title, and address of the officer by whom the tariff is issued.'^'^ § 471. Information that Freight Tariffs shall Contain. The Commission has ruled that freight tariffs in book or pamphlet form shall contain the following information, and in the order named: ^ A. Table of Contents. A full and complete statement in alphabetical order, of the exact location where information under general headings, by subject, will be found, specifying page or item numbers. If a tariff contains so small a volume of matter that its title page or its interior arrangement plainly discloses its contents, the table of contents may be omitted. ^^^ 130 See note 122, supra. 131 Ibid. 132 Ibid. 133 Rule 4, Tariff Circular 17- A. 721 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 471 ^ B. Participating Carriers. Names of issuing carriers, including those for which joint agent issues under power of attorney, and names of carriers participating under concurrence, both alphabetically arranged. If there be not more than ten participating carriers their names may be shown on the title page of the tariff. The form and number of power of attorney or concurrence by which each carrier is made party to the tariff must be shown.^^* H C. Index of Commodities. Alphabetically arranged and complete index of all commodi- ties upon which commodity rates are named, preceded by a paragraph, viz.: "Following list enumerates only such ar- ticles as are given specific rates; articles not specified will take class rates." All of the items relating to different kinds or species of the same commodity will be grouped together. For example, all items of coal under "Coal," and descriptive word or words following, as "Coal," "Coal — Anthracite," "Coal— Bituminous," etc.^^^ ^D. Index to General Commodity Tariff. The index to a general commodity tariff shall also include in alphabetical order all articles upon which commodity rates are named in other tariffs applying from any point of origin to any point of destination named in the tariff, and with such entry shall be shown the number or numbers of tariffs in which such rates are found. For example, "Lime, I. C. C. No. 122," or "Staves, I. C. C. No. 1042." Carriers' tariff numbers may be also shown.^^" If E. Commodity Item containing List of Articles taking QNB EATE need be INDEXED BUT ONCE^ PROVIDED EeFEK- ENCB IS GIVEN TO LiST OF ARTICLES EMBRACED. A commodity item which refers to a list of articles taking one commodity rate need be indexed but once, provided refer- 134 Rule 4, Tariff Circular 17-A. 135 Ibid. 136 Ibid. Kegulation — 46. § 471] INTERSTATE TRANSPORTATION'. 732 ence is given to the item or the I. C. C. number of the issue that contains list of the articles embraced in the term. For example, "Agricultural implements, as described in item .... of this tariff," or "as described in Western Classification, I. C. C. No ;" or "Packinghouse products, as described in Tariff, I. C. C. No " When such specific reference to list of articles embraced in the term is given, the several articles so embraced need not be indexed separately.^^' 1[ F. Tariff must contain all Eates on Commodities in- cluded IN Tariff and between same Points. A local tariff on a single commodity, or a few commodities, shall contain all of that carrier's commodity rates on such commodity or commodities applying from any point of origin to any point of destination named in the tariff; and a joint commodity tariff shall contain all of the initial carrier's com- modity rates on the same commodity or commodities apply- ing from any point of origin to any point of destination named in the tariff via the route or routes authorized by the tariff. If there be not more than ten such commodities they may be named on the title page of the tariff.^^* 11 G. Alphabetical Arrangement of Commodity Eates to each Destination. If all of the commodity rates to each destination in the tariff are arranged alphabetically by commodities, and plain refer- ence thereto is given in table of contents, further or other index of commodities may be omitted from that tariff, pro- vided that, if the issuing carrier, or a participating carrier, has in other tariff or tariffs commodity rates applying from any point of origin to any point of destination named in the tariff, a complete list in alphabetical order by commodities of such other tariffs, together with description of character of traffic, territory or points of origin and of destination, and the I. C. C. numbers of tariffs, containing such commodity 137 Rule 4, Tariff Circular 17-A. 138 Ibid. 72,3 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 471 rates shall be shown in the first part of the tariff and shall be specifically referred to in the table of contents.^''' 1[ H. Commodity Eate not Indexed is not a Lawful Eate. Excepting such as appear in a tariff or a supplement to a tariff which does not require an index, a commodity rate that is not included in the index will be treated as not having been published and cannot lawfully be used. 11 1. Index of Stations. An alphabetical index of points from which rates apply, and an alphabetical index of points to which rates apply, together with names of States in which loca.ted. "When prac- ticable, the index numbers of points and pages upon which rates will be found, or item numbers in which rates from or to such points appear, should be shown. If there be not more than 12 points of origin or 12 points of destination, the name of each may, if practicable, be specified on title page of tariff."" If a tariff is arranged by groups of origin or destination, by bases, or by bases numbers, the indices must show for each point the proper group, basis, or basis number. lyj. Alphabetical Arrangement of Points in Eate Tables. If points of origin or of destination are shown throughout the rate tables in continuous alphabetical order or are shown alphabetically by States and such States are alphabetically arranged, or are shown by groups alphabetically arranged, no index of points of origin or destination will be required. But when such alphabetical arrangement in rate tables is used the table of contents shall indicate the pages upon which points are so shown, and when arranged by States or groups shall give specific reference to the pages on which rates to or from points in each State or group will be found."^ If a tariff constructed so as to state rates by groups or bases, 139 Rule 4. Tariff Circular 17-A. 140 Ibid. 141 Ibid. § 471] INTERSTATE TRANSPORTATION". 734 and also states specific rates to or from individual points, it shall contain an alphabetical index of such individual points and also alphabetical lists of the points in such groups, or reference to the I. C. C. number of issue which contains lists of such group points. T[K. Geographical Description. Geographical description of application of tariff may be used only V7hen the tariff applies to or from aU points in one or more States or Territories or when it applies to or from all points in a State or Territory except those specified. But such list of exceptions for a single State or Territory may not exceed one-third of the number of points in that State or Territory to or from which (as the case may be) the tariff will apply. For example, a tariff may state that it applies from all points in New York, Pennsylvania, and New Jersey, and from all points in Delaware, except {here give alphabetical list of excepted points), and from the following points in Ohio {here give alphabetical list of Ohio points) ^*^ T[ L. Territorial or Group Descriptions. Traffic territorial or group description may be used to desig- nate points to or from which rates named in the tariff apply, provided a complete list of such points arranged by traf&c territories or groups is printed in the tariff or specific refer- ence is given to the I. C. C. number of the issue that contains such list. In this list the points in each traf&c territorial or group description shall be arranged alphabetically, and the name or names of roads upon which points are located must be shown; or all of the points in traffic territories or groups named in the tariff may be included in one alphabetical index, provided (1) that points of origin and points of destination are shown separately, alphabetically; (2) that the name or names of roads upon which points are located and the traffic territorial or group description in which they belong are shown opposite the several points."' 142 Rule 4, Tariff Circular 17-A. 143 Ibid. 725 FEEIGHT TARIFFS OK BATE SCHEDULES. [§ 471 11 M. Eefeeence Marks and Abbreviations. Explanation of reference marks and technical abbreviations used in the tariff, except that a special rule or provision apply- ing to a particular rate will be shown in connection with and on same page with such rate.^** U X. List of Exceptions. List of exceptions, if any, to the classification governing the tariff which are not contained in exception sheets referred to on title page.'*^ T[ 0. Explanatoet Statements. Such explanatory statements in clear and explicit terms regarding the rates and rules contained in the tariff as may be necessary to remove all doubt as to their proper applica- tion."« U P. EuLES Governing the Taeiff. Rules and regulations which govern the tariff, the title of each rule or regulation to be shown in bold type. Under this head all of the rules, regulations, or conditions which in any way affect the rates named in the tariff shall be entered, except that a special rate applying to a particular rate shall be shown in connection with and on the same page with such rate.i" ][ Q. No EULE SHALL AUTHORIZE SUBSTITUTING RaTE FOUND IN ANT OTHEE TAEIFF. No rule or regulation shall be included which in any way or in any terms authorizes substituting for any rate named in the tariff a rate found in any other tariff or made up on any com- bination or plan other than that clearly stated in specific terms in the tariff of which the rule or regulation is a part."' 1[R. EuLE FOR Explosives. Tariffs which contain rates for the transportation of explo- m Rule 4. Tariff Circular 17- A. "5 Ibid. 146 Ibid. 147 Ibid. 148 Ibid. § 471] INTERSTATE TRANSPORTATION. 736 sives must also contain notice that such rates are applicable in connection and in compliance with the regulations governing the transportation of explosives fixed by the Interstate Com- merce Commission. If tariff is governed by classification it will be sufficient to include this notice in the classification re- ferred to as governing the tariff.^*' ^f S. Tariff IIules and Regulations Piled and Posted may BE REFERRED TO IN OTHER SCHEDULES GOVERNED THEREBY. A carrier or an agent may publish, under I. C. C. number, post, and file a tariff publication containing the rules and regu- lations which are to govern certain rate schedules, and such publication may be made a part of such rate schedules by the specific reference, "Governed by rules and regulations shown in I. C. C, No. ..." When a tariff makes reference to another tariff the I. C. C. number of such other tariff must be given, and when such tariff referred to is the publication of another carrier or an agent, the initials of such other carrier or the name of such agent, respectively, must be shown in connection with the I. C. C. number. ^^^ A rate schedule may in like manner refer to another schedule for the governing rules and regulations.^^^ A schedule or a publication so referred to must be on file with the Commission and be posted at every place where a schedule that refers to it is posted.^^^ TIT. Rate Tables. An explicit statement of the rates, in cents or in dollars and cents, per 100 pounds, per barrel or other package, per ton or per car, together with the names or designation of the places from and to which they apply, all arranged in a simple and sys- tematic manner. Minimum carload weights must be specifically stated. Tariffs containing rates per ton must specify what con- 149 Rule 4, Tariff Circular 17-A. 150 Ibid. 151 Ibid. 152 Ibid. 737 FREIGHT TARIFFS OR RATE SCHEDULES. [§ 473 stitutes a ton thereunder. A ton of 2,000 pounds must be speci- fied as "net ton" or "ton of 2,000 pounds." A ton of 2,240 pounds must be specified a "gross ton," "long ton," or "a ton of 2,240 pounds." Complicated or ambiguous plans or terms must be avoid ed.^^' T[ JJ. Routes. The different routes via which tariff applies may be shown, together with appropriate reference to application of rates. "When a tariff specifies routing the rates may not be applied via routes not specified. A tariff may show the routing ordi- narily and customarily to be used and may provide that, if from any cause shipments are sent via other junction points but over the lines of carriers parties to the tariff, the rates will apply.^^* A carrier is required by law to publish the rate and also to clearly indicate the route over which the published rate is ap- plicable. "When so published the rate named and the route designated stand as the law binding as well upon the shipper as upon the carrier.^^^ § 472. A Tariff is not governed by a Classification except when so Specified. A tariff naming commodity rates on strawberries in carloads fixed a certain rate on a minimum of 100 crates and a lower rate on a minimum of 200 crates. The classification in that ter- ritory provided that carload rates would apply only when the carload is shipped from one station in one day by one shipper to one consignee and destination. The shipments in question belonged to different owners, but with the knowledge and eon- sent of the carrier, and under the admitted intent of the tariff, were loaded and forwarded as carload shipments : Held, That they were entitled to the application of the lower rate on the basis of the 200-crate minimum.^^' 153 Rule 4, Tariff Circular 17-A. 154 Ibid. 155 See note 31. supra. 156 Rule 141, Con. Rul. Bui. No. 4 (Feb. 2, 1909). §§473,474] INTEESTATE TEANSPOETATION. 738 § 473. Commodity Rates shown in Tariffs must be Specific. Commodity rates shown in tariffs must be specific and must not be applied to analogous articles.^^' § 474. Alternative Use of Class or Commodity Rates. Tl A. Alternative Eates in Sectional Taeiff. If the alternative use of class or commodity rates is neces- sary or desired in any instance it may be provided by includ- ing in different sections of one and the same tariff such 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. ' '"^ Tl B. Caeeiees mat not Repeoduce othee Caeeiee's oe Agency's Eates foe Alternative Use. No rates may be so included in a tariff for alternative use excepting such as the carrier or agent who issues the tariff is lawfully authorized to publish and change ; that is, rates issued by another carrier or agency may not be reproduced by such alternative use.^^° T[ C. EuLE FOE Taeiff which does not Peovide foe Altee- NATivE Use of Eates. Each tariff that contains class rates and that is not con- structed in sections for alternative use of rates, as provided in paragraph A, supra, of this section, and that is issued or supple- mented shall also contain a rule as follows : Whenever a carload (or a less-than-carload) commodity rate is established it removes the application ol the class rates to or from the same points on that commodity in carload quantities (or less-than- carload quantities, as the case may he).ieo T[ D. Eule foe Taeiff which does Provide foe Alteenative Use of Eates. Each tariff that contains class and commodity rates and that 167 See note 106, supra. 168 Rule 7, Tariff Circular 17-A. 169 Ibid. 160 Ibid. 729 FREIGHT TARIFFS OR RATE SCHEDULES. [§475, is constructed in sections for alternative use of rates as pro-, vided in paragraph A, supra, of this section, and that is issued or supplemented, shall contain a rule as follows: Whenever a carload (or less-than-carload) commodity rate is es- tablished it removes the application of the class rates to or from the same points on that commodity in carload quantities (or less-than- carload quantities, as the case may be), except when and in so far as alternative use of class and commodity rates are contained in separate sections of this tariff is specifically authorized herein.isi U E. EuLE IN Classification. Each classification that is issued or supplemented shall con- tain a rule as follows : Whenever a carload (or less-than-carload) commodity rate is es- tablished it removes the application of the class rates to or from the same points on that commodity in carload quantities (or less-than- carload quantities, as the case may be), except when and in so far as alternative use of class and commodity rates is specifically provided for by including in different sections of one and the same tariff such class and commodity rates, and by including in each section of such tariff 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."i82 § 475. Amendments and Supplements to Tariffs. If A. Amendment and Supplement Defined and Form Thereof. A change in or addition to a tariff shall be known as an, amendment, and, excepting amendments to tariffs of less than five pages, and amendments to tariffs issued in loose-leaf form, shall be printed in a supplement to the tariff and shall refer- to the page or pages or item or items of the tariff, or of pre-, vious supplement, which it amends.^"" An amended item must always be printed in a supplement in its entirety as amended, and the items in each supplement shall be arranged in the same general order as the tariff which, it amends."* 161 Rule 7, Tariff Circular 17-A. 163 Ibid. 163 Rule 9, Tariff Circular 17-A. 164 Ibid. § 475] INTERSTATE TEANSPOKTATION. I'SO T[ B. Participating Carriers. A supplement shall contain either a list of carriers partici- pating therein, or shall state that the list of participating car- riers is "as shown in tariff," or ''as shown in tariff, except" [here show alphabetically all additions ta and eliminations from the original list that are effected by the supplement, or that have been effected by previous supplements] .^^^ Tf C. Supplement Number and Cancellations. Supplements to a tariff shall be numbered consecutively as supplements to that tariff and must not be given separate or new I. C. C. numbers. Each supplement shall specify the sup- plement or supplements which it cancels, and shall also show on its title-page what supplements are in effect and that such effective supplements contain all changes. For example : ' ' Sup- plement No. ... to I. C. C. No. ..." "Cancels Supplements Nos. . . . and ..." " Supplements Nos. . . . and . . . are in effect and contain all changes." The term "Cancels conflicting por- tions" must not be used.^°° T[ D. Show Eeeectivb Date of Eeissued Items and I. C. C. Reference. A tariff which contains reissued items brought forward from a previous issue which has not been in effect thirty days, or a supplement which brings forward reissued items without change from a former supplement or tariff, must not bear nota- tion, "Effective at once, except as noted," but instead must bear the notation, "Effective , except as noted in indi- vidual items. ' ' Example : ' ' Issued , 19 . . , Effective , 19 . . , except as noted in individual items. ' ' Reissued items brought forward without change must show in conspicu- ous form and convenient manner the following: "Reissue [in hlach-face type] ; effective [date upon which item became effective] in I. C. C. No ," or "in Supplement No to I. C. C. No " When the reissued item became effective in a former supplement to the same tariff the I. C. C. number 105 Rule 9, Tariff Circular 17-A. 160 Ibid. T'Sl FREIGHT TARIFFS OR RATE SCHEDULES. [§475 of the tariff may be omitted, but the supplement number must be given. Items reissued from publications that were on file prior to May 1, 1907, may show last date and reference prior to May 1, 1907."^ 1[ E. Number of Supplements in Effect at One Time. A tariff of less than five pages may have no supplement; change therein may be made only by reissue. Not miore than one supplement may.be in effect at any time to a tariff con- taining five and not more than 16 pages. Not more than two supplements may be in effect at any time to a tariff containing 17 and not more than 111 pages. Not more than three supple- ments may be in effect at any time to a tariff containing more than 111 pages, and such third supplement may be issued only when the smaller of the two effective supplements to that tariff- contains not less than 10 per centum of the number of pages in the tariff. "« H F. Amount of Matter Supplement mat Contain. Tariffs containing five or more pages, including title-pages and indices, may be supplemented to the following extent : Number of pages in tariff. Supplement may contain (including title-page and index). 5 and not more than 16 pages 17 and not more than 32 pages 33 or more pages 4 pages. 6 pages. 25 percentum of pages in tariff. the number of 11 G. Supplement exceeding Limit subject to Eejection. A supplement to a tariff which has the effect of exceeding the number of pages of supplemental matter to that tariff as indicated in the preceding paragraph which may be in effect at any time will be subject to rejection when offered for filing."' i-leaf form must be made by reprinting both pages of the leaf upon which change is made. Such pages must not be given supple- ment numbers but must be designated "First revised page ..," "Second revised page ..," etc., must show the I. C. C. number of the tariff, the issued and effective dates, and the name, title, and address of officer by whom issued. Changes or additions must be noted by proper reference marks. When no change or addition is made in one of the pages reprinted it must bear notation "No change in this page."" U H. Supplements to Periodical Tariffs. If a tariff provides that it will be reissued periodically at specified times, not more than six months apart, and the life 73 Rule 38, Tariff Circular 17-A. 7* Ibid. 75 Ibid. 78 Ibid. § 640] INTERSTATE TEANSPOETATION. 906 of the tariff does not exceed six months, and such provision is strictly observeid, the supplement to such tariff may contain all amendments thereto between such specified dates for re- issue, without limit as to size. Such tariff must bear on upper left-hand corrner of title page notation, "This tariff will be reissued effective on or before . . '. , 19 ... '"^ T[ I. Supplement to Taeipp that is Piled and not yet Bpfective. If a tariff is filed on statutory notice canceling another tariff, and after such filing and prior to the effective date of such new tariff a supplement to the tariff to be so canceled should be lawfully issued, fares in that supplement could not continue in effect for the thirty days required by law because the cancellation of the tariff also cancels supplements to it. In such a case supplement containing changes not included in the tariff that is to become effective may be issued as sup- plement both to the tariff in effect and to the tariff on file that will effect such cancellation, and be given both I. C. C. numbers. In other words, such issue must be a supplement to each of the tariffs, and copies must be filed accordingly. A supplement issued under this Rule containing reissued items shall note in connection with each of such items, in addition to the date effective as required by the Rule, that the reissued items expire on the date at which the new tariff becomes effective, and that the new tariff will apply in lieu thereof; and such reissued items must not be brought forward in sub- sequent supplement to the new tariff. Such supplement may not contain any changes except those lawfully made by sup- plement to the tariff which is to be canceled by the tariff that has been filed and that is also so supplemented; and no other kind of supplement to a tariff that is on file and not yet effective may be made effective within thirty days from the effective date of the tariff without special permission.''' The provisions of paragraph D of this Rule as to the number ■n Rule 38, Tariff Circular 17-A. 78 Ibid. 907 PASSENGEE TARIFFS OE FARE SCHEDULES. [§ 640 of supplements to a tariff that may be in effect at any time, and the volume of supplemental matter they may contain must be observed in connection with supplement issued under this paragraph.'^' 1[ J. Withdrawal and Adoption of Tariffs when one Caerier IS Absorbed by another Carrier. In case of change of ownership or control of a carrier the carrier whose line is absorbed, taken over, or purchased by another carrier shall unite with that other carrier in common supplements to the tariffs on file with the Commission, on the one hand withdrawing and on the other hand accepting and establishing such tariffs and all effective supplements thereto. Such common supplements shall be executed jointly by the traffic officers of both the old and new carriers, shall be num- bered consecutively as supplements to the tariffs to which they are directed, and may be made effective on five days' notice to the public and the Commission by noting thereon reference to this Rule. Amendments to such tariffs must thereafter be filed in consecutively numbered supplements thereto until the tariffs are reissued. New tariffs reissuing or superseding these shall be numbered in the I. C. C. series of the new car- rier.*" Tf K. "Withdrawal and Adoption of Tariffs when a Road or Portion thereof is Transferred to anothSir Company, or its Rame is Changed. When a road or a part of a road is transferred from the operating control of one company to that of another, or when its name is changed, the existing tariffs issued by the com- pany that surrenders control must be withdrawn by it and adopted by the company assuming control, as provided in the preceding paragraphs.*^ 79 Rule 38, Tariff Circular 17-A. so Ibid. 81 Ibid. § 640] INTERSTATE TKANSPORTATION. 908 H L. Adoption oe Takifes issued by other Careiees or Joint Agents, and of Concurrences, Powers of Attorney, ETC., filed by old Caeeier. As to tariffs issued by other carriers or joint agents under concurrences or powers of attorney granted by the old car- rier or company, the new carrier or company shall, if it in- tends to USB' such tariff publications and rates, issue, file, and post, with I. C. C. numbers, an adoption notice, substantially as follows :°^ The [name of carrier'\ hereby adopts, ratifies, and makes its own, in every respect as if the same had been originally filed and posted by it, all tariffs, rules, notices, concurrences, traffic agreements, divisions, authorities, powers of attorney, or other instruments whatsoever, filed with the Interstate Commerce Commission by the Iname of old carrier'] prior to [date] the beginning of its possession. By this tariff it also adopts and ratifies all supplements or amendments to any of the above tariffs, etc., which it has heretofore filed with said Com.mission.83 This notice may be made effective and be filed on immediate notice.'* U M. Adoption Notice Piled by Receiver. Similar adoption notice must be filed by a receiver when assuming possession and control of a carrier's lines.*^ U N. Concurrences and Powers oe Attorney of Old Carrier MUST BE EePLACED BY THOSE OF NeW COMPANY. Concurrences and powers of attorney so adopted must, as soon as possible, be replaced and superseded by new concur- rences and powers of attorney issued by and in the name of the new carrier or company, and in each instance canceling the concurrence or power of attorney superseded.*" The carrier surrendering control of the property has no law- ful right to abandon its tariffs except on lawful notice, and when it surrenders control of the property it surrenders all right to publish rates or fares applicable thereto except under 82 Rule 38, Tariff Circular 17-A. 83 Ibid. 84 Ibid. 85 Ibid. 88 Ibid. 909 , PASSENGEE TARIFFS OK FARE SCHEDULES. [§ 641 proper authority from the carrier or company to whose con- trol the property passes. The public has a right to available and lawfully applicable rates and fares over that property.^^ § 641. Cancellation of Tariffs and Parts tSiereof . UA. Tariff ok Supplements to Tariff shall specify Cancellations. If a tariff or supplement to a tariff is issued which conflicts with a part of another tariff or supplement to a tariff which is in force at the time, and which is not thereby canceled in full, it shall specifically state the portion of such other tariff which is thereby canceled, and such other tariff shall at the same time be correspondingly amended, effective on the same date, in the regular way; and such supplement to such tariff so amended' shall be filed at the same time and in connection with the tariff which contains the new fares.** T[ B. Cancellation must be by Authorized Agent or by Car- rier THAT ISSUED THE TARIFF CANCELED. An agent who acts under power of attorney is fully author- ized to act for the carriers that have named him their agent and attorney, and, therefore, it is permissible for him to cancel by his tariffs issues of such principals. A carrier may not by its individual tariff cancel, amend, or modify a tariff by a duly authorized agent, except when corresponding amend- ment to such agent's tariff is filed at the same time, and as per paragraph A, supra.^^ T[ C. Concurrence does not Confer Authority to Cancel. A concurrence does not confer authority upon either car- rier or agent to cancel tariffs of concurring carrier, and, there- fore, tariffs issued under concurrences may not assume to can- eel, or carry notation of cancellation of, tariffs of and issued by concurring carriers! Such cancellations must be made by the carrier that issued the tariff that is to be canceled.'" srRule 38, Tariff Circular 17-A. 88 Rule 37, Tariff Circular 17-A. 89 Ibid. 90 Ibid. § 642] INTEESTATE TRANSPORTATION. 910 H D. Cancellation Notice must be by Supplement. If a tariff is canceled with the purpose of canceling entirely the fares named therein, or when, through error or omission, a later issue failed to cancel the previous issue and a tariff is canceled for the purpose of perfecting the records, the cancellation notice must not be given a new I. C. C. number, but must be issued as a supplement to the tariff which it can- cels, even though such tariff may at the time have a supple- ment in effeet.^^ 1[E. Cancellation Notice shall Specify where Fakes will THEREAFTER BE FOUND. If a tariff or part' of a tariff is canceled, the cancellation notice shall make specific reference to the I. C. C. number of tariff in which such fares will thereafter be found, or if com- bination fares are to apply, or if no fares or arrangements in effect, shall so state. Cancellation of a tariff also cancels supplement to such tariff, if any in effect. If a tariff is can- celed by the issuance of a similar tariff to take its place, cancellation notice must not be given by supplement, but by notice printed in new tariff, as provided elsewhere.'^ HP. Conflict in Passenger Tariffs. Certain fares of a carrier had been published in a joint agent's tariff and also in its own tariff. The carrier issued a new tariff canceling the fares in. its own tariff, but did not secure their cancellation in the joint agent's tariff: Held, That the new tariff was unlawful because in conflict with the uncanceled tariff of the joint agent."^ § 642. Agents autliorized to Issue and Pile Tariffs and Supplements thereto. U A. Notice of Authorization and Acceptance must be FILED. If a carrier authorizes an agent to file its tariffs and sup- 91 Rule 37. Tarife Circular 17-A. 82 Ibid. 93 Rule 104, Con. Rul. Bui. No. 4 (Oct. 16, 1908). 911 PASSENGER TAEIPFS OE FARE SCHEDULES. [§ 642 plements thereto or certain of them, official notice of such authorization and of acceptance of responsibility by the car- rier for his acts, in form as hereinafter specified, must be filed with the Commission. °* T[B. PoRM OF Appointment oe Agent to Pile Tariffs and Supplements thereto. The following form, on paper 8 by 101/2 inches in size, will be used in giving authority to an agent to file for the carrier giving the authority, tariffs and supplements thereto. Such authority must not be given to an association or bureau, and it may not contain authority to delegate to another power thereby conferred.'^ This form may be modified so as to confer the authority desired by omitting the words "(1) for it alone, and (2)," or by omitting the words "and (2) for it jointly with other carriers. ' ""^ TO BE FILED WITH THE INTERSTATE COMMERCE COMMISSION. IWame of carrier in full.'] [Oate] , Form PXl— No. ... Know all men by these presents: That the [name of carrier] has made, constituted and appointed, and by these presents does make, constitute, and appoint [name of person appointed] its true and lawful attorney and agent for the said com- pany, and in its name, place, and stead, (i) for it alone, and (3) for it jointly with other carriers, to file passenger fare schedules and sup- plements thereto, as required of common carriers by the Act to Regu- late Commerce and by regulations established by the Interstate Com- merce Commission thereunder, for the period of time, the traffic, and the territory now herein named: And the said [name of carrier] does hereby give and grant unto its said attorney and agent full power and authority to do and perform all and every act and thing above specified as fully, to all intents and purposes, as if the same were done and performed by the said company, hereby ratifying and confirming all that its said agent and attorney may lawfully do by virtue hereof and assuming full responsibility for the acts and neglects of its said attorney and agent hereunder. In witness whereof the said company has caused these presents to be signed in its name by its president and to be duly attested 94 See note 6, supra. 95 Rule 42, Tariff Circular 17-A. 96 Ibid. § 643] INTEESTATE TKANSPORTATION. 913 under its corporate seal by its secretary, at , in the State of on this day of , in the year of our Lord nineteen hundred and The [raoroe of carrier.'] By ..... Its President. Attest: , Secretary. ICorporate Seal."] Original Form to be filed with Commission and Duplicate furnished Agent. Carrier issuing this form will file the original with the Com- mission and will furnish duplicate to the agent to whom power of attorney is given. Separate authorizations will be given for freight and passenger tariffs. T[ C. Cross Exchange of Concurrence Avoided. If two or more carriers execute the above form containing the words "for it jointly with other carriers" in favor of a joint agent it will not be necessary for the carriers to exchange concurrences with each other as to the joint tariflEs issued by that joint agent under that authority.^' TfD. Authority to Agent mat be Eevoked or Transferred. . Authority given as in paragraph A, supra, may be revoked by a carrier upon thirty days' ofiSeial notice to the Commis- sion, or at any time be transferred to another agent by filing with the Commission notice of such transfer, accompanied by fuU-form authorization for the newly named agent.'* ^ E. Authorizations eoe Agent and Concurrences in his Tariffs must be filed. If two or more carriers appoint the same person as agent for the filing of tariffs and supplements thereto, each of them will be required to file with the Commission power of attorney, in form prescribed, appointing him their agent; and the con- currence of every other carrier participating in any tariff or supplement thereto which is filed by him mlistbe on file with the Commission or accompany the tariff.'' 97 Rule 42, Tariff Circular 17-A. 08 See note 6, supra. 98 Ibid. 913 PASSENGER TARIFFS OR FARE SCHEDULES. [§ 643 H P. Joint Agent will use his own I. C. C. Serial ISTumber. Such joint agent duly authorized to act for several car- riers must file joint tariffs under I. C. C. serial numbers of his own-io" T[ Gr. Tariffs issued et a Carrier under Concurrences will BE FILED BT IT FOR ALL CONCURRING. Tariff issued by a carrier under its I. C. C. numbers may include under proper concurrence shown therein, fares via, and to and from points on other carriers' lines, and concurring carriers may use such tariffs for posting at their stations. Such tariffs must be filed by the issuing carrier and such filing will constitute filing for all lawfully concurring car- riers. ^°^ H H. Send Copies of Joint Publication to evert Carrier Participant therein. The agent of the carrier that issues a joint tariff publica- tion shall at once send copies thereof to each and every carrier that is named as party thereto. ^"^ lyi. Carrier must not Publish Pares conflicting with or DUPLICATING PaRES PUBLISHED BY ITS AgENT. A carrier that grants authority to an agent or to another carrier to publish and file certain of its fares must not in its own publications publish fares in conflict with those which are published by such authorized agent or other carrier, or which duplicate such fares.^"^ §643. Limiting Use of Terms "Common Points," "South- eastern Territory," and similar Terms. The terms "common points," "Southeastern Territory," or similar terms shall not be used in any tariff for the pur- pose of indicating the points from or to which fares named therein apply unless a full list of such points is printed in 100 See. note 6, supra. 101 Ibid. 102 Ibid. 103 Ibid. Eegulation — 58 . §§ 644-646] INTERSTATE TRANSPOETATIOKT. 914 the tariff or specific reference is given to the I. C. C. number of the issue that contains such list.^°* § 644. Basing or Proportional Tariffs must be Specific. Tariffs containing basing fares must specify clearly the extent and manner of their use, and tariffs that are especially intended for use in connection with published basing fares must show the I. C. C. numbers of tariffs in which the bases may be found. ^"^ §645. Numerical Order of I. C. C. Numbers of Tariffs, or Explanation of Missing Numbers, Required. Bach carrier files tariffs under I. C. C. numbers, which are presumed to be used consecutively. Occasionally a tariff or supplement is received by the Commission which does not bear I. C. C. number next in numerical order to that borne by the last one filed. This is sometimes occasioned by the missing number having been assigned to a tariff that is in course of preparation. Eequest is made that in so far as is possible, carriers will file tariffs and supplements in consecutive nu- merical order of I. C. C. numbers. If from any cause this is not done in any instance, the tariff or supplement that is filed with an I. C. C. number that. is not consecutive with the last number filed must be accompanied by a memorandum ex- plaining as to the missing number or numbers.^°° § 646. Index of Passenger Tariffs. Tf A. Careiehs must Publish Complete Index of their Tariffs. Each carrier shall publish, with proper I. C. C. number, post, and file a complete index of the tariffs which are in effect and to which it is a party as an initial line. Such index shall show: (a) I. C. C. number of each tariff; (6) name or initials of issuing road or agent; (c) brief description of char- acter of tariff; (d) concise statement of points between which 104 See flote 49, supra. 105 Rule 36, Tariff Circular 17-A. 108 See note 6, supra. 915 PASSBNGEE TARIFFS OR FARE SCHEDULES. [§ 646 taxiff applies. Tariffs covering short-time excursion rates and supplements to tariffs need not be included in this index.^"' 1[ B. Reissue and Supplements. If any changes are made, this index shall be revised to date and be reissued each month, or, supplement may be issued each month showing all changes and also what tariff, if any, shown in index is canceled or superseded by one shown in supplement, and index be reissued every six months. If supplements are used, they must be constructed in accord with specifications as to construction of index and each supple- ment must cancel preceding supplement and bring forward all corrections. If carrier so desires, lists of its division sheets, official circulars, and of its own numbers of its tariffs or division sheets may appear in this publication.^"^ T[ C. Notation on Title-Paoe. Each index must bear on its title-page notations as follows : "This index contains lists of tariff publications in effect on [date of issue of the index]," to which may be added: "Or which have been filed to become effective at a later date, as shown within." If supplement to index will not be used, "No supplement to this index will be issued;" if supplements will be used, "Only one supplement to this index will be in effect at any time." Each supplement to index must bear on title-page the no- tation: "This supplement contains corrections to and as in effect on [date of issue of the supplement]," to which may be added: "or which have been filed to become effective at a later date, as shown within.""^ 1[ D. Date op Issue, but not Effective Date. The title-page of index or of supplement must show the date of issue thereof, which must correspond to date shown in notation above, and must not bear an effective date. The 107 Rule 39, Tariff Circular 17-A. 108 Ibid. 109 Tbid. § 647] INTERSTATE TRANSPORTATION. 916 rule requiring thirty days', notice does not apply to these in- dexes and their supplements.^^" NOTE. — This rule is also in rules governing freight tariffs. One index containing both passenger and freight tariffs will be deemed sufficient, but if both are included in one index it must be given an I.' C. C. number in both freight and passenger series and four copies must be sent to the Commlssion.m § 647. Tariffs containing' Rail-and-Water or All-Water Rates. Tariffs containing rail-and-water fares or all-water fares applicable via routes upon which it is necessary to close navi- gation during a portion of the year, and which do not become effective and expire by specified expiration within the same season of navigation, may provide for suspension and restora- tion of the rail-and-water fares and the all-Water fares named therein under the following regulations :^^^ H A. Notation on Title-Page op Tariff. The following notation shall appear on the title-page of the tariff."^ The fares named herein for rail-and-water or all-water transpor- tation are subject to suspension at the close of navigation and restor- ation on the opening of navigation of Ihere insert the name of the water carrier or carriers specified in the ta/riffi on notice as provided on page .... of this tariff.n* T[ B. EuLE IN Tariff providing foe Eestoration and Suspen- sion OF Fares. In the rules governing the tariff shall appear the following : In anticipation of the opening of navigation of Ihere insert name of water carrier or carriers named in the tariff] restoration of the rail- and-water and all-water fares contained in this tariff and in effective supplement thereto which was in force on the date the fares were last suspended or which has subsequently been made effective, will be an- nounced by supplement to this tariff which will be filed with the Inter- state Commerce Commission, be posted at points from which the fares apply, and become effective not less than three days thereafter. The fares in this tariff and in supplement thereto for rail-and- 110 Rule 39, Tariff Circular 17-A. 111 Ibid. 112 Rule 40, Tariff Circular 17-A. lis Ibid. Ill Ibid. 917 PASSENGER TARIFFS OR FARE SCHEDULES. [§ 647 water and all-water transportation are effective only during the season of navigation of [here insert the name of water carrier or carriers named in the tariff^. The supplement announcing the close of navigation and the suspension of rail-and-water and all-water fares named In this tariff and its effective supplement will be filed with the Interstate Commerce Commission and will be posted at points from which the fares apply not less than three days in advance of the date upon which the fares will be suspended.ns If C. EOUTES OTHER THAN GREAT LaKES MAT SUSPEND OR Eestore on One Day's Notice. Where the tariff suspended or restored under this rule applies to joint transportation by rail and river, or canal, or inland lakes other than the Great Lakes, such tariff may be suspended or restored on a like notice of one day instead of three days.^^" T[ D. Supplement mat Contain. Supplement issued under this rule announcing suspension and restoration of rail-and-water and all-water fares in tariffs must not contain anything except such suspension or restora- tion notice, and such supplement will not be counted against the number of supplements that is permitted as to such tariff under rule relating to Amendments and Supplements. H E. Suspended Tariffs mat be Eeissubd or Amended. Eail-and-water and all-water fares suspended under this rule may be reissued or amended during such period of suspension upon statutory notice, the same as though the fares were in effect and active use, but the restoration of the fares by sup- plement notice will not advance the effective date of any sup- plement to the tariff which has not on the date of restoration become effective. Supplements iriade effective prior to the date of restoration will be made effective on a given date, or may be stated to be "Effective with restoration of tariff and supplement for season of 19. . [io he announced by subsequent supplement] but not earlier than [statutory notice] 19 . . , nor earlier than noted in individual items. "^^^ 115 Rule 40, Tariff Circular 17- A. 116 Ibid. 1" Ibid. §§ 648-650] INTEKSTATE TEANSPOKTATION. 918 Statutory notice of suspension, withdrawal, or restoration of fares or regulations must be given as to all tariffs that do not contain the provisions of paragraphs 1 and 2 of this Eule."« § 648. Fare Schedules Rejected by the Commission. "When a schedule is rejected by the Commission as un- lawful, the records so show and, therefore, such schedule should not thereafter be referred to as canceled, amended, or otherwise except to note on publication issued in lieu of such rejected schedule "In lieu of rejected by Commis- sion;" nor shall the number which it bears be again used.^^' § 649. Receipt by and Filing of Tariffs with the Commission does not relieve Carriers from Liability for Viola- tion of the Act or Regulations thereunder. The law affirmatively imposes upon each carrier the duty of filing with the Commission all of its tariffs, and supplements thereto, as prescribed in the law or in any rule relative thereto which may be announced by the Commission, under penalty for failure so to do or for using any fare which is not con- tained in its lawfully published and filed tariffs. The Com- mission will give such consistent assistance as it can in this respect, but the fact that receipt of a tariff, or supplement to a tariff, is acknowledged by the Commission, or the fact that a tariff, or supplement to a tariff, is in the files of the Com- mission, will not serve or operate to excuse the carrier from responsibility or liability for any violation of the law, or of any ruling lawfully made thereunder, which may have occurred in connection with the construction or filing of such tariff or supplement.^^'' § 650. Fares Prescribed in Commission's Decisions must be Promulgated in Tariffs and Commission Notified. Fares prescribed by the Commission in its decisions and orders after hearings upon formal complaints shall, in every 118 Rule 40, Tariff Circular 17-A. 119 See note 6, supra. 120 Ibid. 919 PASSENGEE TARIFFS OK FARE SCHEDULES. [§§ 651, 653 instance, be promulgated by the carrier against which such orders are entered in duly published, filed, and posted tariffs or supplements to tariffs and notice shall be sent to the Com- mission that its order in Case No has been complied with in "item , page , of tariff, I. C. C. No or supplement .... to tariff ...., I. C. C. No "^^^ § 651. Circulars announcing Compliance with Orders of Court. Circulars announcing or explaining the attitude of carriers under injunction of a Court, relating to tariff fares or regu- lations, must not be issued as supplements to tariffs nor given I. C. C. numbers unless they are issued on statutory notice or under special permission from! the Commission for shorter time. The Commission has stated, that it will however, be pleased to have copies of such circulars and the informa- tion therein contained.^^^ § 652. Maintenance of Relative Adjustment in issuing Tariffs to conform with Formal Orders of the Commission. T[A. Eight of Careiee Party to a Case or Participant in- Joint Tariff involved in such Case to adjust its Eates to Confoem to Oedee of Commission. In establishing fares or regulations under an order of the Commission in a formal case, carrier or carriers that are actually and on the record parties to the case, or that are lawful parties to a joint tariff in which the fare or regulation that is prescribed is published by some carrier that is party to the case, may include in the change or changes made in compliance with the Commission's order adjustment at other points in order to preserve established grouping or relation of points: Provided, all such changes made by authority of this rule shall be effected by reductions in fares or charges.^^^ 121 See note 6, supra. 122 Ibid. 123 Ibid. §§ 653, 654] INTEESTATE TRANSPORTATION. 930 1[ B. Carrier not Party to a Case nor Participant in Joint Tariff as above must secure Special Permission op Commission. If carrier that is not a party to the case or to the joint tariff desires to make, on less than statutory notice, the same changes that are made under the order by carrier that is party to the same, it must secure special permission to do so."* TJ C. Permission foe Less than Statutory Notice and Notation on Taeiep. Unless otherwise specified in the order in the case, such tariff or supplement may be made effective upon five days' notice to the Comlmission and to the public, and if made effec- tive on less than statutory notice, either under this Rule or under special authority granted in the order in the case, shall bear on its title-page notation "In compliance with order of Interstate Commerce Commission in case No "^^^ § 653. All State or other Fares used for Interstate Movements must be Posted and Filed. Fares for through tickets are often made by adding together two or more fares. All State or other fares used in combina- tion for interstate movements must be posted at points from which they apply and filed with the Comm|ission, and can only be charged as to such traffic in accordance with the terms of the Aet."« § 654. AH Local Tariffs should have I. C. C. Ntimibers and be Posted and Filed. The Commission believes it proper that all local tariffs be given I. C. C. numbers and be posted and filed with the Com- mission in manner prescribed in the Act."^ 12* See note 6, supra. 125 Ibid. 126 Ibid. 127 Ibid. 921 PASSENGER TARIFFS OR PARE SCHEDULES. [§§ 655-657 § 655. Fares governing Transportation for the United States Government need not be Published. Provisions for the subsistence and care in transit of Chinese being deported are matters of contract between the carrier and the Government, and need not be published in the tariffs.i^s § 656. Rates of the Pullman Company. The Pullman Company is a common carrier, subject to the jurisdiction of the Interstate Commerce Commission. It is required to publish its rates and its regulations governing the application of those rates, and these when published are for the consideration and correction of the Commission.^^" § 657. Tariffs covering Mileage, Commutation, Excursion and Round-Trip Pares and Tickets. HA. In General. The Commission has held that it is of the opinion that the provisions of the sixth section of the Act as amended in respect of the publishing, filing, and posting of tariffs apply- to the mileage, commutation and excursion fares authorized by the twenty-second section of the Act. Such a fare when first established or oifered is held to be a change of fare which requires a notice of thirty days. No reason appears why this notice should not be given in the case of mileage fares, commutation fares, round-trip fares or other reduced fares which, like ordinary passenger fares, are established for an indefinite period and appear to be a matter of permanent policy.^^" 1[B. Eound-Trip Excursion Pares. The Commission has held that strictly excursion fares, covering a named and limited period, are of a different char- acter than those designated in the preceding paragraph and may properly be established on much shorter notice.^^^ 128 Rule 107, Con. Rul. Bui. No. 4. 129 Kurtz V. Pa. Co. et al. (1909), 16 I. C. C. R. 410. 130 Rule 52, Tariff Circular 17-A. 131 Ibid. § 657] INTERSTATE TRANSPORTATION'. 932 To avoid the necessity for special application in cases of this kind the Commission ■ has made a general order fixing the following-named time of notice of round-trip excursion fares, and carriers may govern themselves accordingly: Fares for an excursion limited to a designated period of not more than three days may be established, without further notice, upon posting a tariff one day in advance in two public and conspicuous places in the waiting room of each station where tickets for such excursion are sold and mailing a copy thereof to the Commission.^^^ Pares for an excursion limited to a designated period of more than three days and not more than thirty days may be established upon a like notice of three days/'^ Fares for a series of daily excursions, such series covering a period not exceeding thirty days, may be established upon like notice of three days as to the entire series, and separate notice of the excursion on each day covered by the series need not be given.^^* Fares for an excursion limited to a designated period ex- ceeding thirty days will require the statutory notice unless shorter time is allowed in special eases by the Commission.^'' Definition of Term "Limited to a Designated Period." The term "limited to a designated period" used above is construed to cover the period between the time at which the transportation can first be used and the time at which it expires. If tariff names different selling dates for excursions which form a series, and the period of time between the first selling date and the last date upon which any tickets sold under the tariff may be used exceeds thirty days, the series of ' excursions so provided for do not come within the period of "not exceeding thirty days," and such tariff may not be issued by authority of this Rule. But it is permissible to establish fares for two or more distinct and separate excur- 132 Rule 52, Tariff Circular 17-A. 133 Ibid. 134 Ibid. 135 Ibid. 933 PASSENGER TAHIFFS OK FARE SCHEDULES. [§ 657 sions to various points and for various occasions, each such excursion limited to a designated period of not more than thirty days, and for convenience of public and agents to announce them in a bulletin tariff under this Rule. It is also permissible to show in such bulletin, fares for a series of ex- cursions between the same points, such series covering a period of more than thirty days, provided full statutory no- tice of such series is thereby given, and provided title-page of publication bears notation "Effective except as noted in individual items as to which full statutory notice is given." "When such items are brought forward to another issue of bulletin they must bear notation 'First announced in Bulletin No , I. C. C. No , of , 19.. ."i^" No Supplement to Tariff under this Rule. No supplement may be issued to any tariff that is issued under this Rule except for the purpose of canceling the tariff, and title-page of tariff must so state. Every such tariff must bear notation on title-page "Issued by authority of Rule 52, Tariff Circular, 17-A." Changes in Excursion Tariffs. When it becomes necessary to change the terms of a short- time excursion fare tariff issued under this Rule and covering a period not exceeding thirty days, for any of the following reasons : Changes in dates of meeting, involving changes in dates of sale and in return limit, not exceeding thirty days; extension of the return limit, not exceeding thirty days ; addi- tional selling dates ; additional selling points ; additional stop- over privileges ; reduction in fares ; or to cancel such tariff before date of its expiration when the occasion for the excur- sion has been declared off, such change or cancellation may, when the excursion is limited to designated period of not msore than three days, be made by posting tariff containing the change or supplement containing the cancellation, one day in advance in two public places in the waiting room of each station where tickets for such excursion are sold, and 138 Rule 52, Tariff Circular 17-A. § 658] INTERSTATE TEANSPOKTATION. 924 mailing copy thereof to the Connnission. If the excursion is limited to a designated period of more than three days and not more than thirty days, cancellation or change may be made on like notice of three days. If the excursion is limited to a designated period exceeding thirty days, statutory notice must be given of change or cancellation, or special permission for shorter time must be secured.^'^ No Index or Routing Required. Short-time excursion fare tariffs issued under authority of this Rule need not contain alphabetically arranged indexes of stations from and to which the fares apply, nor show specific routing when the fares are stated in such terms as "One first- class fare for the round trip," etc.^^^ When the fares are stated in specific sums the routing may be shown by reference to other tariffs which contain the de- sired routing, and in the following manner: Show in the tariff by proper initials and I. C. C. numbers the tariffs that are thus referred to, designating each of them by a letter, and place opposite the name of each point of origin, in a column marked "Route," the proper reference letter. For example : "Route A. Routing as per . . . . I. C. C. No " "Prom Smithville, Nebr., to Jonesboro, Kans., Route A, $17.20.""=' § 658. Maximum Pares not Specific Fares. T[ A. Fakes and their Application must be Speoieicallt Stated. The rulings of the Commission prohibit including in a tariff any rule or regulation which in any way or in any terms authorizes substituting for any fare named in the tariff a fare found in any other tariff or made upon any combination or plan other than that clearly stated in specific terms in the tariff of which the rule or regulation is a part. These rules 1ST Rule 52, Tariff Circular 17- A. 138 Ibid. 139 Ibid. 925 PASSENGER TARIFFS OE FARE SCHEDULES. [§ 659 are intended to bring about entire discontinuance of tariff rules which provide that fares named in the tariff will apply to certain points "as maxima," or that if a combination on some gateway or basing point makes less than the fares named in the tariff such combination will apply, or for equalizing or protecting any fare via another line or route or gateway, etc. The intent is that tariffs shall state in specific, clear, and unambiguous terms the fares and their application.^*" T[ B. Fares to or from Intermediate Points. The rulings of the Commission provide that a tariff shall contain complete alphabetical indices of the points from and to which it applies. The Commission has held that this is not to be understood as prohibiting the incorporation in a tariff of a rule providing for the affirmative and definite appli- cation of the fares named in that tariff to or from points not indexed and which are directly intermediate on the same line with the points that are indexed. ^*^ U C. Specific Joint Through Pare must be Invariably Applied. In every instance where there is a specific fare from point of origin to point of destination it must be applied to through passengers regardless of possible lower combinations.^ , 142 § 659. Tariffs governing Use of Party-Pare Tickets. The tariffs and regulations governing the issuance and use of party fare tickets, together with the rules relating to the allowance of free baggage to persons using such tickets, must be regularly filed and published. The privileges so extended must not be limited to any particular class or classes of per- sons, but must be open to all. Regulations governing issuance and use of party fare tickets must not be such as will oper- ate to evade or nullify any provision of the law. The Com- mission suggests that the rules should provide that the party 1*0 Rule 64. Tariff Circular 17- A. 141 Ibid. 1*2 Ibid. §§ 660, 661] INTERSTATE TEANSPOKTATION. 926 shall travel on one ticket and consist of not less than ten persons. ^*^ Members of Party traveling on Party-Fare Ticket may accompany Exclusive Baggage Car on another Train. When a party of ten (10) or more perons are traveling on a party-fare ticket and require the exclusive use of a baggage car, and such baggage car is not forwarded upon the same train which bears the passengers, and where it is necessary that one or more men of the party shall accompany the bag- gage car, a separate ticket may be issued for the use of such men as members of the party, provided such ticket is indorsed as a part of such party fare ticket and for, and limited to, the train upon which the baggage car is hauled. It is not, however, lawful or permissible to permit person or persons to go in advance of or to follow the party as passengers and be computed as a part of the party or as entitled to the party fare. All tariff provisions to such effect are unlawful and must be withdrawn at once.^** § 660. Side Trips not Specifically shown in a Through Tariff. The Commission has held that a note in a through tariff providing that passengers purchasing through tickets there- under shall be entitled to such side-trip privileges as are stated in the individual tariffs on file with the Commission of the carriers that are parties to the through fares, is a suffi- cient compliance with the requirements of law and with the rules of the Commission.'^*^ § 661. Concurrence by Carriers in Tariffs Issued and Filed by another Carrier or its Agent. H A. Mandate of the Statute regarding Concurrence in Joint Tariffs. The Act provides that each of the parties to a joint tariff, other than the one filing the same, shall file with the Com- ics Rule 62, Tariff Circular 17-A. 1*4 Ibia. 146 Rule 177, Con. Rul. Bui. No. 4 (May 10, 1909). 927 PASSENGEE TARIFFS OR FARE SCHEDULES. [§ 661 mission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission, and vrhere such evidence of concurrence or acceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in vyhich they are named as parties."" H B. Concurrence, better than Power of Attorney. The Commission has ruled that experience has demonstrated that it is simpler and better to use concurrence than power of attorney in giving authority to a carrier to publish and file another carrier's fares. Provision for giving power of attorney to another carrier has therefore been eliminated ex- cept for the purpose of granting authority to give and receive concurrences as provided elsewhere."' This does not invalidate or change the terms or effect of any power of attorney now on file with the Commission.^*^ U C. Concurrence must be given to Carriers Named therein. Concurrences must be given to carriers named therein and authority so granted to a carrier may be by it delegated to its lawfully appointed agent.^*^ T[ D. Size of Paper. All concurrences must be on paper 8 by 10% inches in size.^^" 1[E. Separate Concurrences for Passenger and Freight Tariffs. Separate concurrences will be given by carriers for passen- ger and freight tariffs.'^^ 1*8 See note 1, supra. 1*7 See note 95, supra. , 1*8 Ibid. 1*9 Ibid. 150 Ibid. 151 Ibid. § 661] INTERSTATE TRANSPORTATION. 928 11 F. Form of Concurrence in a Tariff that is issued and FILED BY ANOTHER CARRIER OR ITS AGENT AND TO WHICH THE Carrier giving Concurrence is a Party. The following form will be used in giving eoneurrenee in a tariff that is issued and filed by another carrier or its agent and to which the carrier giving concurrence is a party. If given to continue until revoked, it will serve as continuing concurrence in the tariff described in the concurrence and all supplements to and reissues thereof. If provision for con- currence to continue until revoked is stricken out, a new con- currence will be required with each supplement or reissue. ^^^ TO BE FILED WITH THE INTERSTATE COMMERCE COMMISSIOST. IName of carrier in fuU.J General Passenger Department, [Date] , Form PX2— No. . . . To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier] assents to and concurs in the publication and filing of the fare schedule describea below, to- gether with supplements thereto and reissues thereof which the named issuing carrier or its agent may make and file, and hereby makes itself a party thereto and bound thereby, until this authority is revoked by formal and official notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this con- currence is given. Title and number: [Here give exact description of title of schechile, including numher and name of series.'] Date of issue: Date effective: , Issued bv J lOfjicial.] issuea Dy j [gompany.] [Na/me of carrier.] By \JSfame of officer.] [Title of officer.] Concurrence accompanying Tarijf. The original of this form will be filed with the Commission by the carrier or agent who files the tariff and will accom- pany the tariff.^^^ 152 Rule 43, Tariff Circular 17-A. 153 Ibid. 929 PASSENGEE TARIFFS OE FAEE SCHEDULES. [§ 661 T[ G. Poem of Concueeence given by Careiee to embrace all Tariffs issued bt anothee Caeriee oe its Agent in WHICH CONCUEEING CaEEIER IS ShOWN AS A PARTICI- PATING Intermediate or Teeminal Line. Concurrence may be given by a carrier to embrace all tariffs issued by another carrier or its agent in which the concurring carrier is shown as a participating intermediate or terminal line, and after the following form:^^* TO BE FILED WITH THE INTERSTATE COMMERCE COMMISSION. [Name of carrier in full.l General Passenger Department, [Date] , Form PX3— No. . . . To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier'] assents to and concurs in the publication and filing of any passenger-fare schedule or sup- plement thereto, which the [name of carrier] or its agent may make and file, in which it is shown as a participating carrier, and hereby makes itself a party thereto and bound thereby in so far as such schedule contains fares applying via its line and to, but not from, points there- on, until this authority is revoked by formal and ofiBcial notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this concurrence is given. [Name of carrier.] By [Name of officer.] [Title of officer.] Original Form to he filed witli Commission and Duplicate furnished Carrier. Carrier issuing this form will file the original with the Commission and will furnish duplicate to the carrier to which concurrence is given. This form must not be qualified in any way, except to show what agents have been given power of attorney and to provide that tariffs shall not be issued under the concurrence covering traffic provided for in tariffs issued by such agents.'^^ Concurrences PX3 cover all fares issued by carrier to which given and which apply via the line of, and to but not from points located upon the line of the carrier giving the concur- 154 Rule 44, Tariff Circular 17-A. 155 Ibid. EegulAtion — 59. § 661] INTEESTATE TRANSPOETATIOHT. 930 renee. This is intended to reserve to the initial carrier the quotaton of fares upon traffic originating on its line, except when by use of another form of concurrence or power of attorney it grants authority to some other to quote such fares/^" Round-Trip Excursion Fares included in Concurrence. Eound-trip excursion fares are not, however, considered as applying to traffic originating at the points where the return journey begins. Concurrences PX3 are, therefore, considered and held to include concurrence in round-trip excursion fares, stated in specific figures or in some such term as "one fare for the round-trip. "^^^ T[ H. Poem of Concueeence given bt a Caeeiee in Taeiffs ISSUED BY ANOTHER CAKEIER OE ITS AGENT APPLYING PaEES to OE FEOM ITS POINTS OE VIA ITS LiNES, TO CeE- TAiN Described Points oe Teeeitoeies. Concurrence may be given by a carrier in tariffs issued by another carrier or its agent applying fares to or from its points or via its lines, to certain described points or territories, and after the following form, modified as may be necessary to confer exactly the authority intended to be granted. For granting authority to publish and file fares to and from and via its lines, and not otherwise qualified, carriers will uge concurrence formi PX5 or PX7.^^* TO BE FILED WITH THE INTERSTATE COMMERCE COMMISSION. IName of carrier in full.'] General Passenger Department, [Date'] , Form PX4— No. ... To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier] assents to and concurs in the publication and filing of any passenger-fare schedule or sup- plement thereto, which the [name of carrier] or its agent may make and file, and in which this company is shown as a participating carrier, 156 Rule 44> Tarife Circular 17-A. 157 Ibid. 158 Rule 45, Tariff Circular 17-A. 931 PASSENGEK TARIFFS OR FARE SCHEDULES. [§ 661 and hereby makes itself a party to and bound in so far as such schedule contains fares applying upon ; or between and ; or from to ; or via ; until this authority is revoked by formal and official notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this concurrence is given. [Name of carrier.'\ By [Name of offioer.'] [Title of officer.'] Original Form to be filed with Commission and Duplicate furnished Carrier. Carrier issuing this form will file the original with the Com- mission and will furnish duplicate to the carrier to which concurrence is given.^^^ If I. Form of Concukeencb bt a Caeeiee in Taeiffs issued BY anothee Caeeiee or its Agent applying Faees to AND FEOM its POINTS AND VIA ITS LiNES. Concurrence may be given by a carrier in tariffs issued by another carrier or its agent applying fares to and from its points, and via its lines, and after the following form:^'" TO BE FILED WITH THE INTEESTATE COMMEECE COMMISSION. [Na/me of carrier in full.'] General Passenger Department, [Date] , Form PX5— No. ... To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier] assents to and concurs in the publication and filing of any passenger-fare schedule or sup- plement thereto, which the [name of carrier] or its agent may make and file, and in which this company is shown as a participating carrier, and hereby makes itself a party to and bound thereby in so far as such schedule contains fares applying to and from stations on its lines, and via its lines, until this authority is revoked by formal and official notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this concurrence is given. [Name of carrier.] By [Name of officer.] [Title of offieer.'i 159 Rule 45, Tariff Circular 17-A. leoRule 46, Tariff Circular 17-A. § 661] INTERSTATE TRANSPORTATION. 932 Original Form to be filed with Commission and Duplicate furnished Carrier. Carrier issuing this form will file the original with the Commission and will furnish duplicate to the carrier to which concurrence is given. This form must not be qualified in any way, unless to show what agents have been given powers of attorney and to provide that tariffs shall not be issued under the concurrence covering trafSc provided for in tariffs issued by such agents.^"^ f J. Form of Concurrence given by two oe more Carriers IN Tariffs issued bt their Joint Agent. If two or more carriers appoint the same person as agent for the publication and filing of tariffsi and supplements there- to under power of attorney forml PXl, concurrence in tariffs issued by him under such authority may be in either of the following forms :^°^ (A) ; TO BE FILED WITH THE INTEESTATE COMMEECE COMMISSION. IName of carrier in full.] General Passenger Department, IDate] , Form PX6— No. ... To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier'] assents to and concurs in the publication and filing of any passenger fare schedule or sup- plement thereto which the [here give list of all roads for which the agent has powers of attorney], or either or any of them, may make and file through their agent and attorney [name of agent], and in which it is shown as a participating carrier, and hereby makes itself a party to and bound thereby in so far as such tariff contains fares applying via its line, and to lut not from points thereon, until this authority is revoked by formal and official notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this concurrence is given, or of its agent and attorney herein named. [Name of carrier.] By [Name of officer.] [Title of officer.] 181 Rule 46, Tariff Circular 17-A. 162 Rule 47, Tariff Circular 17-A. 933 PASSENGER TAEIEFS OE EAKB SCHEDULES. [§ 661 (B) TO BE FILED WITH THE INTEESTATE COMMERCE COMMISSION. IName of carrier in fuU.'i General Passenger Department, FormPX7-No. ... ^^"*'^ To the Interstate Commerce Commission. . . Washington, D. C: TJis IS to certify that the Iname of carrier^ assents to and concurs m the publication and filing of any passenger fare schedule or sup- plement thereto which the [here give list of all roads for which, the agent has poioers of attorney'^, or either or any of them, may make and file through their agent and attorney [name of agent], and in which it iS shown as a participating carrier, and hereby makes itself a party to and bound thereby in so far as such schedule contains fares applying via its line, and to and from points thereon, until this authority is re- voked by formal and official notices of revocation placed in the hands of the Interstate Commerce Commission and of the carrier to which this concurrence is given, or of its agent and attorney herein named. \_Nam,e of carrier.] By iJiame of officer.] [Title of officer.] Filing. Carrier issuing this form will file the original with the Commission and will furnish duplicate to each of the carriers named in the concurrence, or, if each of those carriers has given said agent power of attorney to receive for it concur- rences, original will be filed with the Commission- and one duplicate may be filed with such agent instead of furnishing duplicates to each and every carrier represented by him.^"^ ^K. FOEM OP CONCUEEENCE GIVEN BY TWO OE MORE CARRIERS IN Tariffs issued by theie Joint Agent, applying to OE PEOM CERTAIN POINTS OR TERRITORY. If two or more carriers appoint the same person as agent for the publication and filing of tariffs and supplements thereto under power of attorney form PXl, concurrence in tariffs issued by himi under such authority applying to or from certain points or territory may be issued in the follow- ing form, modified so as to confer exactly the authority de- sired.^^* 163 Rules 47 and 48, Tariff Circular 17 -A. 164 Rule 49, Tariff Circular 17-A. § 661] INTERSTATE TEANSPORTATION. 934 TO BE FILED WITH THE INTERSTATE COMMEBCE COMMISSION. [Name of carrier in full.'] General Passenger Department, [Date] , Form PX8— No. ... To the Interstate Commerce Commission, Washington, D. C: This is to certify that the [name of carrier'] assents to and concurs in the publication and filing of any passenger-fare schedule or sup- plement thereto which the [here give list of all roads for which the agent has powers of attorney], or either or any of them, may make and file through their agent and attorney [name of agent], and In which it Is shown as a participating carrier, and hereby makes Itself a party to and bound thereby in so far as such schedule contains fares apply- ing from to points on or reached via Its line; or from points on or via Its line to until this authority is revoked by formal and ofladal notice of revocation placed in the hands of the Interstate Com- merce Commission and of the carriers to which this concurrence Is given, or of their agent and attorney herein named. [Name of carrier.] By [Name of officer.] [Title of officer.] Filing. Carrier issuing this form will file the original with the Commission and will furnish duplicate to each of the car- riers named in the concurrence, or, if each of those carriers has given said agent power of attorney to receive for it con- currences, original will be filed with the Commission and one duplicate may be filed with such agent instead of furnishing duplicate to each and every carrier represented by him.^°^ NOTE. — Concurrence, form PX2, applies to individual publication named therein. Concurrence, form PX3 or PX6, confers authority to publish and file fares to, but not from, points on line of concurring carrier and via its lines. Concurrence, form PX5 or PX7, confers authority to publish and file fares to and from points on line of con- curring carrier and via its lines. Forms PX3, PX5, PX6, and PX7 are not to be modified except as specified in the Rules. The use of these several forms as provided will, therefore, show by the form number just what authority has been given except when form PX4 or PX8 is used, these forms being provided for instances which the other forms do not exactly fit. The Commission does not require the substitu- tion of concurrence form PX5 for form PX4, now on file, which covers only the authority provided for in the new form PX5, but will welcome such substitution. For all new concurrences forms will be used as specified In the several Rules, and PX4 or PX8 only when neither of the other forms provides for the authority it is desired to confer. 165 Rule 49, Tariff Circular 17-A. 9S5 PASSENGEK TARIFFS OE FARE SCHEDULES. [§ 661 II L. Numbers of Concurrences and Authorizations. Each carrier will give authorizations and concurrences serial numbers, beginning with No. 1 in each series, as indicated by forms, and continuing in consecutive numbers as to each series, and keeping these numbers separate and apart from I. C. C. numbers of tariffs. 1[ M. Eevocation Effective. A concurrence may be revoked by filing notice of such revocation with the Commission and serving same upon the carrier to which such concurrence was given. Such" notice must specify the date upon which revocation is to be made effective, and must give at least sixty days' notice to the Commission and to the carrier to which concurrence was given. Corresponding correction of tariff or tariffs shall be made in the next supplement to or reissue thereof, and if necessary, supplement or reissue shall be issued for the sole purpose of making such correction lawfully effective on statutory notice upon the effective date stated in the notice of revoca- tion.i^" H N. Subsidiary or Small-Line Tariffs. Subsidiary or small lines which do not wish to issue con- currences or tariffs mjay give to the parent or other line power of attorney to concur in tariffs, and also general con- currence PX4 or PX5, to file tariffs, and the carrier holding such authority and concurrence may give, and also receive concurrence for itself and the lines for which it acts in one instrument. Such subsidiary or small lines must, however, be named in concurrences so given. In giving power of attorney to concur in tariffs, form PXl will be modified by striking out from line six the word "file" and substituting therefore: "to give and receive concurrences in."^"" U 0. Conflicting Authority to be Avoided. In giving concurrences care must be taken to avoid proba- 166 Rule 50, Tariff Circular 17-A. 167 Ibid. § 661] INTERSTATE TRA.NSPOKTATION. 936 bility of two or more agents or carriers naming conflicting fares or rules.^*' TI P. Cakeier issuing Authority or Concurrence is not re- lieved FROM Duty of Posting Tariffs. The granting of authority to issue tariffs under power of attorney, or general concurrence, does not relieve the carrier conferring the authority from the necessity of complying with the law with regard to posting tariffs. It is proper to use tariffs issued under its authority for that purpose.^'^ 11 Q. Use of Consolidated Concurrences. When consolidated form of concurrence PX6, PX7, or PX8 has been used and additions are to be made to the list of roads for which such agent acts under powers of attorney the necessity for a new set of consolidated concurrences pre- sents itself. Trouble and inconvenience can be avoided by the issuance of powers of attorney authorizing such agent to receive concurrence provided in paragraphs J and K, supra, this section, and the securing of new concurrences will be com- paratively simple.^'" If E. Concurrence in Tariffs of Carriers in Ad.tacent Foreign Countries. The Commission h^s stated that through fares from points in the United States to points in foreign countries adjacent thereto and through rates from points in adjacent foreign countries to points in the United States are a great conven- ience, and that it desires to permit and encourage the publi- cation and filing of such through fares under lawful and proper conditions."^ Concurrences required in Tariffs to or from Mexico. A joint tariff naming fares from a point in the United 168 Rule 50. Tariff Circular 17-A. 109 Ibid. 170 See note 6, supra. iTi Rule 72, Tariff Circular 17-A. 937 PASSENGER TARIFFS OK FARE SCHEDULES. [§ 662 States to a point in Mexico, must be concurred in by the car- riers that are parties to the through fares and participate in through transportation thereunder.^'^ If a road in Mexico desires to reserve the contention that it is not amenable to the provisions of the Act to Regulate Commerce or to the jurisdiction of the Commission it may- note such reservation on its concurrence. Divisions must be Filed. Such tariff must either show the divisions of the fares accru- ing to the roads in the United States to or from the border or a statement of such divisions of the fares must be filed with the Commission, together with and at the time the tariff itself is ffled."^ Rule also applies to Canada. This rule applies in like manner to tariffs containing fares from points in the United States to points in Canada, and also in like manner to tariffs containing fares from points in Mexico to points in the United States or from points in Canada to points in the United States, or from points in Mexico through the Unted States to points in Mexico, or from points in Canada through the United States to points in Canada, or from points in Mexico through the United States to points in Canada, or from points in Canada through the United States to points in Mexico.^'* §662. Letter of Transmittal accompanying Tariffs filed with the Commission. All tariffs that are filed with the Commission should be ac- companied by a letter of transmittal, on paper 8 by IQi/^ inches in size, and to the following effect:"^ 172 Rule 72. Tariff Circular . 17-A. 173 Ibid. 17* Ibid. 175 Rule 51. Tariff Circular 17-A. § 663] INTERSTATE TRANSPORTATION. 938 IName of carrier.'] General Passenger Department, iDate] , Advice No. . . . To the Interstate Commerce Commission, Washington, D. C: Accompanying schedule is sent you for filing in compliance with the requirements of the Act to Regulate Commerce, issued by , bearing I. C. C. No ; Supp. No to I. 0. C. No ; Effective . 190..; and is concurred in by all carriers named therein as participants under continuing concurrences or authorizations now on file with the Inter- state Commerce Commission, except the following-named carriers, whose concurrences are attached hereto: [Signature of filing agent. i A separate letter may accompany each schedule, or the form may be modified to provide for filing under one letter as many schedules as can be conveniently entered.^''* NOTE. — If receipt for accompanying schedule is desired, the letter of transmittal must be sent in duplicate, and one copy will be stamped and returned as receipt.i''T § 663. Tariffs governing Movement of Passengers to and from Foreign Countries. U A. Pares governing Inland Haul. The inland carriers of passenger traffic to or from a foreign country not adjacent, must publish their fares to the ports and from the ports, and such fares must be the same for all regardless of vphat ocean carrier may be designated by the passenger.^'* 1[ B. Through Eates or Fares mat be shown. As a matter of convenience to the public carriers may pub- lish in their tariffs such through fares to or from foreign points as they may make in connection with ocean carriers. 1T6 Rule 51, Tariff Circular 17-A. 177 Ibid. 178 Rule 71, Tariff Circular 17-A. 939 PASSENGER TARIFFS OR FARE SCHEDULES. [§ 663 Such tariffs must, however, distinctly state the inland fare as above provided; and need not be concurred in by the ocean carrier, because, concurrence can be required from, and is effective against, only carriers subject to the Act."^ If C. Steamship Charges max be shown. It is permissible for a carrier to state its inland fares, which must be open to all alike, regardless of what ocean carrier may be designated by the passenger, and regardless of the nationality or employment of the person transported, and in the same connection to show the additional steamship charges which go to make up through fares to or from foreign destinations.^*" T[D. Evidence of Steamship Passage in connection with Inland Pares. If the inland portion of such fares is different from the carrier's domestic fares, and if such inland proportionals are offered only in connection with travel to or from a foreign country, it is entirely proper and necessary that the inland carrier shall require evidence of steamer passage having been paid for before granting to any person its inland proportional fare which its tariff offers in connection with such journey; and to note on separate tickets that may be issued for the inland and the ocean portions of such trip cross references to the other portions of such tickets, and to require satis- factory evidence to be presented to conductor in order to make valid such inland proportional ticket.^*^ ^ E. Statutory Fotice Eequieed. The Commission has ruled that whatever plan of publishing these fares is followed, the tariffs must be filed and posted, and may be changed only upon statutory notice or under special permission for shorter time.^*^ 179 Rule 71, Tariff Circular 17-A. ISO Ibid. 181 Ibid. 182 Ibid. OHAPTEE XXXV. INTERCHANGE OF TRAFFIC BETWEEN CONNECTING CARRIERS AND THROUGH OR CONTINUOUS TRANSPORTATION. Section « 664. Carriers must afford Reasonable, Proper and Equal Facilities for Interchange of Traffic. 665. Continuous Carriage of Freights from Place of Shipment to Place of Destination. 666. Purpose of Statutes relating to Interchange of Traffic and Con- tinuous Transportation. 667. Use of Tracks and Terminal Facilities of Another Carrier. 668. Carriers not required to Transport Freight in the care of the Connecting Line. 669. Carrier desiring Interchange of Traffic must provide all Neces- sary Facilities. 670. Discrimination in Furnishing Facilities for Interchange of Traf- fic. 671. State Statute Requiring Track Connection. §664. Carriers must afford Reasonable, Proper, and Equal Facilities for Interchange of Traffic. The Act provides that every common carrier subject to its provisions shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but that this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.^ It is the duty of an interstate carrier to receive inter- 1 Act to Regulate Commerce. Section 3. 940 941 INTERCHANGE BETWEEN CONNECTING CAEEIEES. [§§ 665, 666 state shipments, to issue receipts therefor, to indicate on the waybills the final destinations, and to transport and de- liver them to its connecting carriers; and it is the duty of the connecting carriers to transport and deliver at destina- tions, each carrier charging for its service its legally pub- lished rate.^ §665. Continuous Carriage of Freights from Place of Ship- ment to Place of Destination. The Act provides that it shall be unlawful for any common carrier subject to its provisions to enter into any combination, contract, or agreement, express or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destih- ation, and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of the Aet.^ § 666. Purpose of Statutes relating to Interchange of Traific and Continuous Transportation. The purpose of the provisions of the third and seventh sec- tions of the Act relating to interchanged traffic was to secure through carriage and the freest possible interchange of traffic along and over all. lines and routes where the physical con- nections and conditions for such interchange exist, both in the interest of commerce and to secure impartial treatment of railroad companies connecting with others.* 2 Corporation Commission of State of Oklahoma v. C. R. I. & P. Ry. Co. et al. (1910), 17 I. C. C. R. 379. 3 Act to Regulate Commerce. Section 7. See case of Cutting v. Florida Ry. & Nav. Co. (1891), 46 Fed. Rep. 641. 4 Ninth Annual Report of I. C. C. (1895). §§ 667, 668] INTERSTATE TKASrSPOETATION. 943 The right of continuous transportation from one end of the country to the other is essential in modern times to that free- dom of commerce from the restraints which the States might also choose to impose upon it. § 667. Use of Tracks and Terminal Facilities of Another Carrier. The provision of the Act relating to facilities for inter- change of traffic, states that nothing contained therein shall be construed as requiring any common carrier to give the use of its tracks or terminal facilities to another carrier en- gaged in like business. ° Such tracks and terminal facilities can only be used by another railroad company for the ex- change of interstate freight, with the consent of the carrier owner thereof .° So, where a railroad company has established facilities at a certain place within a city for the interchange of traffic with connecting roads, it is not required, under the Act, to establish facilities at another place in the same city for the interchange of traffic with another road.'' § 668. Carriers not required to Transport Freight in the Cars of the Connecting Line. The Act does not require an interstate carrier to receive freight from a connecting carrier in the cars in which it is tendered, and to transport it in such cars, paying a mileage rate thereon, when it has cars of its own, available for the service, and the freight will not be injured by transfer.* The statute refers only to facilities at connecting terminal 5 See note 1, supra. 6 Little Rock & M. Rd. Co. v. St. L. I. M. & S. Ry. Co. et al. (1894), 59 Fed. Rep. 400, affirmed 63 Fed. Rep. 775, 11 0. C. A. 417. ^ Kentucky & I. Brdg. Co. v. L. & N. Rd. Co. (1889), 37 Fed. Rep. 567, refusing to enforce order of Commission, 2 I. C. C. R. 162; 2 I. C. R. 102. 8 Little Rock & M. Rd. Co. v. St. Louis S. W. Ry. Co. (1894), 63 Fed. Rep. 775; 11 C. C. A. 417, affirming 59 Fed. Rep. 400; Oregon Short Line & U. N. Ry. Co. v. Northern Pacific Rd. Co. (1892), 51 Fed. Rep. 465; affirmed 61 Fed. Rep. 158, 9 C. C. A. 409. 943 INTERCHANGE BETWEEN CONNECTING CAREIEES. [§§ 669, 670 points, and does not embrace ear equipment for the trans- portation of freight over the carrier's own road.** Neither does the Act confer upon the Commission authori- ty to make an order affirmatively requiring a railway carrier to deliver carloads of interstate freight to a connecting car- rier.^" § 669. Carrier desiring Interchange of Traffic must provide all Necessary Facilities. A railroad company cannot demand an interchange of traf- fic with a connecting carrier without first providing at the point of physical connection reasonable and proper facilities for the interchange sought. Neither can it compel the re- ceiving carrier to go to any expense in providing such facili- ties-." § 670. Discrimination in furnishing Facilities for Interchange of Traffic. If A. Discrimination between Connecting Lines Forbidden BY Statute. The Act to Regulate Commerce after commanding common carriers to afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of pas- sengers and property to and from their several lines and those connecting therewith, forbids any discrimination in the rates and charges between such connecting lines.^^ TfB. "What Constitutes an Unlawful Discrimination. .Whether a carrier is guilty of violating the Act by refusing to afford equal facilities for the interchange of traffic is to be determined by applying all the considerations of equity to the case and should be found to exist only when such faeili- 9 United States v. D. L. & W. Rd. Co. (1889), 40 Fed. Rep. 101. 10 Railroad Commission of Kentucky v. L. & N. Rd. Co. et al. (1904), 10 I. C. C. R. 173. 11 See note 6, supra. 12 See note 1, supra. § 670] INTEESTATE TKANSPOKTATION. 944 ties can be afforded "under substantially similar circum- stances and conditions. "^^ The Act does not require a carrier to furnish to one car- rier equal facilities for the interchange of traffic that it fur- nishes to others where the circumstances and conditions are dissimilar.^* T[ C. DiSCEIMINATION IN ALLOWING INTERCHANGE OP CaES OF Connecting Caeeiees. A railroad company may, without violating the statute, lawfully receive loaded cars from one connecting carrier and require that freight offered by another connecting carrier be reloaded into its own cars.^° T[ D. DiSCEIMINATION IN EXACTING PEEPATMENT OF ChAEGES BY Peeceding Caeeiee. An interstate carrier does not subject another carrier to an "undue or unreasonable disadvantage" by exacting the prepayment of charges on all property received from it at a given station, although it does not require charges to be paid in advance on freight received from other individual and competing carriers at such points.^* There is nothing in the Act which requires a common car- rier to advance freight charges to one connecting carrier because it advances such charges to other connecting car- riers.^'' T[ E. DiSCEIMINATION IN GRANTING WhAEFAGE FACILITIES. Defendant operated a railroad and a line of steamers be- tween Astoria, Ore., and Shoal Water Bay, "Wash. At Ilwaeo it had a wharf where the steamers and railroad connected. This, it contended was a private wharf and refused to allow 13 New York & N. Ry. Co. v. New York & N. E. Rd. Co. (1892), 50 Fed. Rep. 867; see s. c, 4 I. C. C. R. 702; 3 I. C. R. 542. 1* See note 7, supra. 15 See note 6, supra. 18 See note 8, supra. 17 Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co. (1898), 86 Fed. Rep. 407, 30 C. C. A. 142. 945 inteechajstge between connecting caekiees. [§ 671 complainant's steamers to land there. Held, That Section 3 of the Act contemplates independent carriers besides the offending railroad, capable of mutual relations, and capable of being objects of favor or prejudice, and for a carrier to prefer itself in its own proper business is not the discrimina- tion which is condemned by the statute.^' H F. Use of Teacks and Teeminal Facilities. A railroad company may permit the use of its tracks and terminal facilities by one carrier to the entire exclusion of others. ^^ Such action does not constitute an undue or unrea- sonable preference or advantage, or unlawful discrimina- tion against such other carriers within the meaning of the Act.^° § 671. State Statute requiring Track Connection. The requirement of track connections and facilities for the interchange of cars and traffic at railroad intersections which is made by a State statute does not constitute an unconstitu- tional regulation of commerce.^^ 18 Ilwaco Ry. & Nav. Co. v. Oregon Short Line & U. N. Ry. Co., 57 Fed. Rep. 673; 6 C. C. A. 495; 15 U. S. App. Rep. 173; 5 I. C. R. 627, reversing 51 Fed. Rep. 611. 19 See note 8, supra. 20 Oregon Short Line & U. N. Ry. Co. v. Nor. Pac. Ry. Co. (1892), 51 Fed. Rep. 465, affirmed 61 Fed. Rep. 158; 9 C. C. A. 409; see also Kentucky & L Brdg. Co. v. L. & N. Rd. Co. (1889). 21 W. M. & P. Rd. Co. V. Jacobson (1900), 179 U. S. 287; 45 L. ed. 194, 21 Sup. Ct. 115. Ebgulation — 60. CHAPTER XXXVI. CONTRACTS, AGREEMENTS AND ARRANGEMENTS BETWEEN COMMON CARRIERS. Section 612. Copies of Contracts, Agreements, or Arrangements between Car- riers must be Piled with the Commission. 673. When Carriers Fail to Agree on Divisions of Joint Rate the Com- mission may prescribe Proportion of such Rate to be received by each Carrier. 674. Elements to be Considered by the Commission in Fixing the Divi- sion of Rates between Carriers. 675. Copies of Contracts, Agreements, or Arrangements to be Preserved as Public Records in Custody of Secretary of Commission. 676. Division of Proceeds of Sale of Shipment to Pay Freight Charges. 677. Error in Sale of Passenger Tickets. 678. Pooling Contracts and Agreements. 679. Contracts between Railroad Companies and Telegraph and Tele- phone Companies for Free Transportation of Men and Supplies. 680. Traffic Associations. 681. Legalizing Agreements for Rate Publication Recommended. § 672. Copies of Contracts, Agreements, or Arrajigements Between Carriers must be filed with the Commission. U A. Provision op the Statute. The Act to Regulate Commerce provides that every com- mon carrier subject to the provisions thereof shall file with the Commission copies of all contracts, agreements, or ar- rangements with other common carriers in relation to any traffic affected by the provisions of the Act to which it may be a party.^ ^ B. Contracts and Agreements for Division of Joint Rates and Fares must be Filed. A contract, agreement, or arrangement between common 1 Act to Regulate Commerce. Section 6. 946 947 CONTRACTS BETWEEN COMMON CAERIEKS. [§ 673 carriers governing the division between them of joint rates or fares on interstate business is a contract, agreement, or arrangement in relation to traffic within the meaning of Sec- tion 6 of the Act to Regulate Commerce, and a copy thereof must be filed with the Commission. Where such contract, agreement, or arrangement is verbal or is contained in cor- respondence between the parties or rests on their custom and practice, a memorandum of its terms must be filed with the Commission.^ Answering many inquiries as to just what is desired under this rule, the Commission stated that when the agreement or arrangement under which divisions are made is in the form of a contract or formal agreement or recorded memorandum, a copy of each such contract, agreement, or memorandum is to be filed with the Commission: Where such agreement is made by correspondence or verbally, a concise memoran- dum of the basis and general terms and application of the arrangement or practice is to be filed with the Commission. The filing of the division sheets themselves is not desired.^ U C. Eailkoad and Telegraph Lines subject to the Govern- ment-Aided Eailroad Act were required to Pile Copies of their Contracts. .See Section 75^, post. § 673. When Carriers Fail to Agree on Divisions of Joint Rate the Commission may prescribe Proportion of such Rate to be received by each Carrier. The statute provides that whenever the carrier or carriers, in obedience to an order of the. Commission establishing just and reasonable rates or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the Commission may after hearing, make a supplemental order prescribing the just and reasonable proportion of such joint rate to be re- 2 Rule 209, Con. Rul. Bui. No. 4 (Nov. 16, 1906); Rule 32, TarM Cir- cular 16-A. 3 Ibid. §§ 674-676] INTERSTATE TRANSPOETATION. 948 ceived by eaeli carrier party thereto, which order shall take effect as a part of the original order.* § 674. Elements to be Considered by the Commission in fixing tSie Division of Rates between Carriers. In fixing a division between carriers of joint rates ordered to be established, Section 15 of the Act implies that it is the duty of the Commission to take into consideration all the cir- cumstances, conditions, and equities fairly affecting their sev- eral interests, and precludes the idea that the divisions must be adjusted on a mileage or any other fixed basis. Where a carrier not only furnishes local markets reached by no other road, but also serves a producing territory ample to supply the needs of those markets, no division can in jus- tice be made that does not fully protect its revenues so far as that can be done reasonably and without altogether over- looking the earnings of its connections or withdrawing from producing shippers or consumers their right to the transpor- tation service at reasonable rates.^ § 675. Copies of Contracts, Agreements, or Arrangements to be Preserved as Public Records in Custody of Sec- retary of Commission. The Act to Regulate Commerce provides that the copies of all contracts, agreements, or arrangements between com- mon carriers filed with the Commission as provided therein, shall be preserved as public records in the custody of the secretary of the Commission." §676. Division of Proceeds of Sale of Shipment to Pay Preig!dt Charges. A shipment refused by the consignee and upon which de- murrage had accrued was sold by the delivering carrier, but did not realize the amount of the transportation charges and the amount paid for unloading. Upon the request of the * Act to Regulate Commerce. Section 15. 5 Star Grain & Lumber Co. et al. v. A. T. & S. F. Ry. Co. et al., 14 I. C. C. R. 364. 6 Act to Regulate Commerce. Section 16. 949' CONTRACTS BETWEEN COMMON CAEKIEES. [§§ 677-681 carrier, the Commission declined to express its views as to the manner in which the proceeds of the sale should be divided among the several carriers participating in the movement, that being a matter to be determined by the interested car- riers for themselves.' §677. Error in Sale of Passenger Tickets. A station agent inadvertently failed to indorse "Colonist Ticket" on a regular ticket sold upon a published colonist rate. Held, That the connecting carriers must be paid their full proportion of the first class rate, but that the Commis- sion would not intervene between the initial carrier and its agent." § 678. Pooling Contracts and Agreements. See Chapter 38, post, for full consideration. § 679. Contracts between Railroad Companies and Telegraph and Telephone Companies for Free Transportation of Men and Supplies. See Section 607, ante. § 680. Traffic Associations. See Section 7Jf6, post. § 681. Legalizing Agreements for Eate Publication Recommended. In his recent message to Congress, President Taft said:' "The Republican platform of 1908 expressed the belief that the Interstate Commerce Law should be further amended so as to give the railroads the right to. make and publish traffic agreements subject to the approval of the Commission, but maintaining always the principal of competition between nat- urally competing lines and avoiding the common control of those lines by any means whatsoever. In view of the com- ^ Rule 41, Con. Rul. Bui. No. 4 (March 3, 1908). 8 Rule 69, Con. Rul. Bui. No. 4 (May 4, 1908). 9 Message of January 7, 1910. § 681] INTERSTATE TRANSPORTATION. . 9&0 plete control over ratemaking and other practices of inter- state carriers, established by the Acts of Congress and as recommended in this communication, I see no reason why- agreements between carriers subject to the Act, specifying the classifications of freight and the rates, fares and charges for transportation of passengers and freight should not be permitted, provided copies of such agreements be promptly filed with the Commission but subject to all the provisions of the Interstate Commerce Act and subject to the rights of any parties to such agreement to cancel it, as to all or any of the agreed rates, fares, charges or classifications by thirty days' notice in writing to the other parties and to the Com- mission. ' ' OHAPTER XXXVII. CAR PER DIEM CHARGE. Section 682. Origin of the Per Diem Rate for the use of Equipment. G83. Rate of Per Diem. 684. Per Diem Charge Strictly a Rental. 685. Federal Legislation governing the Interchange of Cars Recom- mended by the Interstate Commerce Commission. § 682. Origin of the Per Diem Rate for the use of Equipment. It is not many years since the railroad which originated freight transferred goods at its junctions to the cars of the connecting road. Each railroad was thus made to supply its own equipment. This was an uneconomical and time-wasting method, and so out of their own necessity and to give a prompter service to the shipping public, the railroads devel- oped the practice which generally obtains today of permitting cars to pass onto the track of their connecting roads and making a charge for the use of the equipment.^ Under this system the present method of hauling freight over several connecting lines has made possible that great body of through transportation which is perhaps the most distinctive feature of American railroading.^ The charge assessed for the use of ears was usually fixed at % cent per car per mile; the road on whose line the mileage accrued paying the charge to the owner of the car. This car varied, however according to the style and nature of the equipment, viz., a refrigerator car commanded a higher mil-eage rate that a box or gondola car. The plan of paying for borrowed equipment by the mile was in force ever since cars began to be sent from one rail- 1 In the Matter of Car Shortage and other Insufficient Transporta- tion Facilities, 12 I. C. C. R. 561. 2 Ihid. 951 § 682] INTERSTATE TKANSPOETATION. 953 road to another.^ This method, however, led to serious abuses. The owner of the ear was powerless either to get his ear returned or to test the accuracy of the records by which he was paid for its use, so that ears were often kept out of his possession for months, being used by the consignees as free storehouses for freight, or by the borrowing railroad com- pany in local service at an unreasonably low rental, or as has occurred in consequence of errors in the accounts, without any rental at all.* This state of affairs led the American Kailway Association early in the year 1902, to inaugurate a system by which the interchange of freight cars between the different railroads of the country was put on a business basis, a change which appears to be a definite reform and in the interest of efficient service and upright dealing between carriers.^ The reform consisted in the adoption of a rule to pay by the day instead of by the mile. The owner can himself keep account of the number of days a car is absent from the home line — thus insuring accuracy; while the fact that a borrowed car must be paid for at the same rate when standing idle as when used in profitable service spurs the borrower to promptly return it when it has completed the service for which it was borrowed. The older plan put a premium on dilatory return, while the new plan puts a premium on prompt return.® The interchange of cars is now almost wholly unrestricted throughout the United States; every road is a constant bor- rower from and lender to, not only its immediate connections, but from and to lines in distant States. The owners of the cars are apprised of their various move- ments and whereabouts by a system of reports rendered by the car accountant or superintendent of ear service of the various roads over which the cars move. 3 Sixteenth Annual Report of I. C. C. (1902). 4 Ibid. 5 Ibid. 6 Ibid. 953 OAK PEE DIEM CHAKGE. [§§ 683-685 § 683. Rate of Per Diem. The interchange per diem rate is generally 20 cents per ear per day.'' Some roads charge a penalty in addition to this rate for the detention of the car after the expiration of a certain period. For example, one road charged 20 cents per car per day for only thirty days, and after that time the bor- rower must pay a dollar a day for its use.^ Within this period of thirty days is included all time occu- pied in transportation without any deduction.^ § 684. Per Diem Charge Strictly a Rental. As between the railroads the per diem charge is made ex- clusively for the use of the car.^° Some railroads are bor- rowers and others lenders of cars under the present system of interchange which is in vogue between connecting lines and it is hardly credible that the lender would furnish the borrower with equipment for must less than a fair compen- sation.^'- § 685. Federal Legislation governing the Interchange of Cars Recommended by the Interstate Commerce Commission. The Commission has stated^^ that "while the railroads may fix the price that may be charged for the use of their ears by other roads, it may become advisable for the protection of those roads which, realizing their duties as common car- riers, furnish themselves with adequate equipment, that power be vested in the Commission to make rules governing the inter- change of cars and that Congress also enact a penal law under which railroads may be punished for the confiscation of for- eign equipment. It is claimed that the carriers themselves cannot deal with this problem by raising the per diem charge 7 See note 1, supra. sMichie v. N. Y. N. H. & H. R. R. Co. (1907), 151 Fed. Rep. 694. 9 Ibid. 10 Ibid. 11 T. M. Kehoe & Co. v. C. & W. C. R. Co. (1905), 11 I. C. C. R. 166. 12 See note 1, supra. § 685] INTBKSTATE TRANSPORTATION. 954 without seriously limiting the extent and utility of through transportation, a contingency that would demoralize the busi- ness of the country. That this matter of securing the return of cars to the owners is not one that should be regarded in- differently is made evident by the fact that during a certain period of car shortage, railroads having 10 percent of the total mileage in one of the States relied 'entirely' for equipment upon foreign cars." / / CHAPTER XXXVIII. POOLING CONTRACTS AND AGREEMENTS. Section 686. Pooling of Freights and Division of Earnings Forbidden. 687. Penalty for Violation of "Pooling" Prohibition of the Statute. 688. Nature and Varieties of Pools. 689. Purpose of Prohibition against Pooling. 690. Pooling- Agreements which are not subject to the Act to Regulate Commerce. 691. Agreement for Apportioning Immigrant Traffic. 692. Attitude of Congress at Time of Passage of Law Prohibiting Pooling. 693. Agreement for Maintenance of Rates not governed by Act to Regulate Commerce. 694. Establishment of Through Route by Connecting Carriers and Reserving Right to Route Shipments as Condition of Guaran- teeing Through Rate not in Violation of the Statute. § 686. Pooling of Freights and Division of Earnings Forbidden. The fifth section of the Act to Regulate Commerce provides : ."That it shall be unlawful for any common carrier subject to the provisions of this Act to enter into any contract, agree- ment, or combination with any other common carrier or car- riers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense." Any arrangement, oral or otherwise, or combination, which has, for its purpose and eventuates in the pooling of freights of different and competing railroads, is within the prohibition of the Interstate Commerce Act.^ 1 In Re Pooling Freights (1902), 115 Fed. Rep. 588. 955 §§ 687, 688] INTERSTATE TRANSPORTATION. 956 The word "freights" as used in the statute means the com- modities carried, and not the compensation paid for such carriage.^ § 687. Penalty for Violation of "Pooling" Prohibition of the Statute. See Section 771, post. § 688. Nature and Varieties of Pools. UA. Pool Defined. A railroad pool has been defined as an agreement between competing railroads, to apportion the competitive business.^ More precisely, it is an agreement made by several railroads competing for business to allow to each a stated percentage of the whole competing traffic, or of the receipts thereof, together with a mutual guaranty that each road shall receive it share.* 1[B. Varieties of Pools. The statute contemplates two methods of pooling, both of which are prohibited: First, a physical or traffic pool, which means a distribution by the carriers of property offered for transportation among different and competing railroads in proportions and on per- centages previously agreed upon;^ Second, a money pool, which is described best in the lan- guage of the statute, "to divide between them (different and competing railroads) the aggregate or net proceeds of the earnings of such railroads, or any portion thereof. "° Under such an arrangement the gross or net earnings, as the case may be, are divided in certain percentages, entirely irre- spective of the amount of business which may happen to pass over the several lines.' 2 I. C. C. V. Southern Pacific Co. et al. (1904), 132 Fed. Rep. 829. s Final Report of Industrial Commission, Vol. 19. * "American Railroad Rates," by Noyes. 5 See note 1, supra. 6 Ibid. ^ See note 3. supra. 957 POOLING CONTRACTS AND AGREEMENTS. [§§ 689-691 § 689. Purpose of Prohibition against Pooling. The Interstate Commerce Law was intended to encourage normal competition. It forbids pooling for the very purpose of allowing competition to have effect.* § 689, Pooling Agreements which are not subject to the Act to Eegulate Commerce. U A. Contract between "Water Carriers. The pooling of traffic by water carriers is plainly a matter over which the Interstate Commerce Commission has no juris- diction, for the Act prohibits pooling only as to "railroads." A pooling of ocean freights or of water freights of any char- acter was evidently not in the mind of Congress when it adopted this provision.' TfB. Contract between Pipe Line and Eaileoad. An agreement for the pooling of traffic between a carrier by rail subject to the Act to Eegulate Commerce and a car- rier by pipe line does not fall within the description of con- tracts prohibited by Section 5 of that Act.^° T[ C. Intrastate Traffic. Traffic carried only within the territorial limits of a State is not interstate in character, and the instrumentality of its transportation is not subject to the provisions of the statute agains pooling in respect to such traffic. ^^ § 691. Agreement for Apportioning Immigrant Traffic. By mutual agreement between carriers operating from the Atlantic seaboard to western points the immigrant traffic through New York City and other Atlantic ports was divided between such carriers in agreed proportions based upon the 8 East Tennessee, Va. & Ga. Ry. Co. v. I. C. C, 99 Fed. Rep. 52, 61, 39 C. C. A. 413. 9 Cosmopolitan Shipping Co. v. Hamburg- American Line (1908), 13 I. C. C. R. 266. 10 Independent Refiners' Assn. v. W. N. Y. & P. Rd. Co. et al. (1892), 5 I. C. C. R. 415; 4 I. C. R. 162. 11 See note 1, supra. § 691] INTERSTATE TEANSPOETATION. 958 proportion of the domestic passenger traffic done by each line. Necessary expenses were apportioned among the lines according to gross earnings on their traffic. Since the passage of the Act to Regulate Commerce there had been no money pool, nor were deficiencies made up by the payment of money differences ; the arrangement of distribution was a purely phy- sical one, the immigrants being forwarded in equal propor- tions by the various trunk lines if their domestic through passenger btisiness had been, approximately, proportionally divided. If any road or roads showed a falling off from their average of general through passenger business, the percent- age of immigrant traffic through their territory was only dis- tributed to the extent of making their proportion good, and^ when that was accomplished it was equally distributed as before. The immigrants were carried from the seaboard at domestic published rates. The arrangement adopted by the carriers in connection with the immigration authorities of the United States for handling immigrant business had efficiently promoted the protection and greatly improved the treatment and comfort of immigrants. The Commission in passing upon the arrangement said: "Section 5 of the Act to Regulate Commerce provides: " 'That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and com- peting railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any ease of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense.' "It will be seen that it was deemed by the authors of the Act essential to provide specifically against a division of freight in kind as well as against the pooling or division of the earnings therefrom, but for some reason they did not not provide against a division of passengers between compet- ing roads. The omission to do the latter while doing the former would seem to indicate that it is not improbable that 959 POOLING CONTRACTS AND AGREEMENTS. [§ 691 they deemed the general prohibition in this section against a division between them of the aggregate or net earnings of such railroads, or any portion thereof, would be sufftcient to prevent any known or probable method of pooling passen- ger traffic that was or could be made effective. "The understanding and intent of legislators may sometimes be gathered from the expressions in debate while the measure is under consideration; and while these are but individual' opinions upon construction of language and serve in no case to lend an interpretation or color not consistent with the actual terms of the law, are of service in illustrating the wrongs to be cured and the aims of those who seek to right them. "The general feeling against pooling arrangements was very bitter immediately preceding and at the time of the passage of the Act. So obnoxious had some of the more ag- gravated of these conditions become that they were not only severly denounced on several occasions, but the States had been awakened to action against them both in their constitu- tions and in their courts. "A list of the more important pools was given by the author of the Eeagan Bill in July, 1886, in his presentation of the necessity and purposes of the proposed act for railway regu- lation. Included in the list was one dated 1879 and another 1885, both of which provided and guaranteed a fund to main- tain a pool having for its object the control or division of the westbound passenger traffic as well as of freights, and there was indication that the subject of passenger pools was at least under consideration. Whether the language as finally adopted accomplished the purpose of forbidding all pools, freight or passenger, was a matter upon which there was even then division of opinion. "In the debate upon the conference report of the two Houses of Congress, a representative from Iowa (Mr. Weaver) in- sisted that the language of the section referred to freight pools, while a representative from Georgia (Mr. Crisp) was as firm that it also applied 'if it were the pooling of passenger fares.' 'But,' he added, 'did the gentleman ever know of a passenger § 691] INTERSTATE TRANSPOETATIOIT. 960 pool?' — as if it were useless to strive over a theoretical situ- ation. "It seems clear to us that the section quoted forbids a division of 'the aggregate or net proceeds of the earnings of such railroads or any portion thereof of competing carriers, whether such earnings arise from freight or passenger busi- ness, and that it also forbids a division of freights in kind by any device. But it is not clear that Congress did not regard the division of the passenger trafifiic in kind as imprac- ticable, and, therefore, not necessary to include within the prohibition. Nor is it believed that such a practice exists or could be made effective in respect to any other class of pas- senger business, except that of immigrants; and while, as shown, the arrangement under discussion purports to be for the division of westbound passenger traffic, including domes- tic as well as immigrant, it is also apparent that in its opera- tion there is practically only a distribution or division of the imraigrants which, however, is based upon the propositions of the domestic traffic done by each line. This arrangement is no doubt in restraint of competition, and if the question of the reasonableness of the rates was under consideration would have bearing upon that question; but there is no divi- sion of the aggregate or net proceeds, or any part thereof, between the lines, unless as is contended, the division of pas- sengers before they have been carried is, in contemplation of law, a division of the earnings therefrom. Against this con- tention is the fact that there is specific prohibition against the pooling or division of freights and the omission of a like specific provision in respect to passengers. In view of this fact and the further fact that the things forbidden by this section of the Act are made criminal, it is doubtful, at least, whether such a division of the passengers as has been shown to exist under this arrangement is covered by the prohibitions of this section. If the practice was effective in respect to domestic business so as to indicate that it might become ex- tensive, we might feel constrained to resolve the doubt against the practice in an effort to uproot it, for it must be con- ceded that if it were practicable to make effective such ar- 961 POOLING CONTRACTS AND AGHEEMENTS. [§ 693 rangements in respect to all, or a large part of the domestic passenger business, what we understand to be the purposes of the law would be largely defeated, but as above indicated, it is not believed that it can ever be made effective to any considerable extent in the domestic passenger business and it is not improbable that this is the reason that this section was framed at it is."^^ § 692. Attitude of Congress at Time of Passage of Law Prohibiting Pooling. In the discussions which preceded the passage of the present Ikw the advocates of Government regulations were entirely agreed as to the gravity and extent of the evils then existing, but there was radical difference of opinion as to whether the legislative remedies to be applied should include a prohibition of those agreements and arrangements between competing carriers which are commonly described as "pools." In January, 1886, the Senate Committee on Interstate Com- merce said in its report: The majority of the committee are not disposed to endanger the success of the methods of regulation proposed for the prevention of unjust discrimination by recommending the prohibition of pooling, but prefer to leave that subject for investigation by the Commission when the effects of the legislation herein suggested shall have been developed and made apparent. During the debates in Congress, above referred to, these pooling contracts were criticised with great variety of ex- pression as conspiracies in restraint of trade, as dangerous monopolies, as "rings" and "corners." They were alleged to have the effect of giving the railroads control of the trans- portation, commerce, and wealth of the country, and to threaten the liberties of the people by ultimately dominating the measures and policy of the great political parties. It was asserted that such agreements were forbidden by the common law, by the constitutions of many of the States, and by a long line of judicial decisions; that their effect was to substitute monopoly for competition, extortion for reasonable 12 Re Transportation of Immigrants from New York (1904), 10 I. C. C. R. 13. Eegulation — 61. § 692] INTERSTATE TRANSPORTATION. 963 rates, and diserimination for equal treatment. It was claimed that the publication of tariffs and the uniformity of charges which other provisions of the law made mandatory would be aided in their beneficial purposes by prohibiting pooling rather than by permitting it; that pools had proven to be expensive, troublesome and demoralizing to operating officials, and that they had often resulted in unremunerative rates between competing points, the losses from which were re- couped by excessive charges at local stations. In short, the belief was entertained that the legislation of these agree- ments was contrary to the general policy of the proposed statute. On the other hand, those who advocated some system of pooling contended that if these contracts were controlled by law they would constitute a practical defense against rate- cutting and similar devices; that they sustained and secured reasonable and stable rates; that they were absolutely neces- sary to avoid bankruptcy in many cases by preventing ruin- ous competition; that the evils arising from these arrange- ments were either imaginary or would be cured by the other provisions of the law; that they were simply agreements to apportion competitive business and had nothing to do with the fixing of rates; that they were wanting in the essential characteristics of a pool; that only contracts in total restraint of trade were illegal; that partial and reasonable restraints when founded upon a good consideration were valid, and that such agreeinents neither enhanced nor depressed prices, nor controlled either production or markets. "While these differences of opinion existed in both branches of Congress, the argument against legalizing these arrange- ments seem to have prevailed, and after prolonged discussion, consideration, and conference, the present law was enacted, the fifth section of which expressly prohibits all contracts, agreements, or combinations between carriers for the pooling of freights or the division of traffic earnings. ^^ 13 Sixth Annual Report of I. C. C. (1892). See discussion on Pools in Final Report of Industrial Commission, "Vol. 19; American Rail- road Rates by Judge Walter Chadwick Noyes; First Annual Report of I. C. C. (1887). 963 POOLING CONTRACTS AND AGKEBMENTS. [§§ 693, 694 § 693. Agreement for Maintenance of Rates not governed by Act to Regulate Commerce. The fifth section of the Act to Regulate Commerce pro- hibits what is termed "pooling," but there is no express pro- vision in that Act prohibiting the maintenance of rates among competing roads by making an agreement for that purpose.^* The Act to Regulate Commerce was not directed to securing uniformity of rates to be charged by competing railroads, and that statute does not authorize competing and noneonnecting roads to make such an agreement.^^ Agreements for the establishment and maintenance of rates; between competing roads and agreements for the prevention of competition are in violation of the Sherman Anti-trust Act'** and the reader is therefore referred to the chapter on that subject, see "Traffic Association," Section 746, post. § 694. Establishment of Through Route by Connecting Carriers and Reserving Right to Route Shipments as Con- dition of Guaranteeing Through Rate not in Viola- tion of the Statute. The pooling of freights of competing railroads forbidden by Section 5 of the Act to Regulate Commerce is not accom- plished by the adoption by common carriers, as part of an agreement for a through rate from California to the Bast, for oranges and other citrous fruits, of a rule under which the right of routing beyond its own terminal is reserved to the initial carrier as the condition of guaranteeing the through rates to the shipper, even though the initial carrier promises fair treatment to the connecting lines, and carries out such promise, where such rule has served, as was intended, to 14 United States v. Trans-Missouri Freight Association (1896), 166 U. S. 290, 17 Sup. Ct. Rep. 540, 41 L. ed. 1007, reversing 58 Fed. Rep. 58, 7 C. C. A. 15 and 53 Fed. Rep. 440. 15 Ibid. 18 "An Act to Protect Trade and Commerce against Unlawful Re- straints and Monopolies," 26 Stat, at L. 209, Chap. 647; Rev. Stat. Supp. p. 762, passed July 2, 1890; known as the "Sherman Antitrust Act." § 694] INTEESTATE TEAJSTSPOKTATIOK. 964 break up rebating by the connecting lines, and, in its prac- tical operation, the actual routing is generally conceded to the shipper, and his requests to direct shipments en route are usually allowed.^^ 17 Southern Pacific Company et al. v. I. C. C. (1905), 200 U. S. 536; 50 L. fed. 585, 26 Sup. Ct. 330, reversing 132 Fed. Rep. 829. CHAPTER XXXIX. ACCOUNTS, RECORDS AND MEMORANDA OF COMMON CARRIERS. Section 695. 'Uniform System of Accounts. 696. Power of Commission to Prescribe Forms of Accounts, Records, etc. 697. Access of Commission to Accounts, Records, etc. 698. Carriers cannot keep other Accounts than those Prescribed by the Commission. 699. Commission may employ Special Examiners to Inspect Accounts and Records of Carriers. 700. Punishment of Carrier by Forfeiture for Failure to Keep Accounts or Records as Prescribed by Commission or Allow Inspection thereof. 701. Punishment of Person for False Entry in Accounts or Records, or Mutilation of Accounts or Records, or for keeping other Accounts than those Prescribed by Commission. 702. Punishment of Special Examiner who Divulges Facts or Infor- mation without Authority. 703. Destruction of Accounts, Records and Memoranda. § 695. Uniform System of Accounts. T[A. Power of Commission to Pebsceibe Unieoem System of ACCOTJNTS. The Act to Regulate Commerce provides that the Interstate Commerce Commission, may, in its discretion, for the purpose of enabling it the better to carry out the purposes of the Act, prescribe a period of time within which all common carriers subject to the provisions of the Act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept.^ 1 Act to Regulate Commerce. Section 20. 965 §§ 696-698] INTEESTATE TKANSPOKTATION. 966 T[B. Unifoem Eules op Accounting Peesceibed. In the exercise of this authority, the Commission has pro- mulgated detailed accounting rules governing the operations of all common carriers subject to the provisions of the Act to Eegulate Commerce. The Commission also issues an Ac- counting Bulletin which contains a series of questions sub- mitted to the Division of Statistics and Accounts and decisions thereto relating to these rules. None of the accounting rules have been embodied in this book for the reason that it would be without the scope of the work. Anyone interested in this branch of transportation may readily obtain a complete set of these rules upon application to the Interstate Commerce Commission, Division of Statistics and Accounts. § 696. Power of Commission to Prescribe Forms of Accounts, Records, etc. The statute provides that the Commission may, in its dis- cretion, prescribe the forms of any and all accounts, records, and memoranda to be kept by carriers subject to the provi- sions of the Act, including the accounts, records, and memor- anda of the movement of traffic as well as the receipts and expenditures of money.^ § 697. Access of Commission to Accounts, Records, etc. The statute provides that the Commission shall at all times have access to all accounts, records, and memoranda kept by carriers subject to the Act.^ § 698. Carriers cannot keep other Accounts than those Prescribed by the Commission. The statute makes it unlawful for any carrier subject to its provisions to keep any other accounts, records, or mem- oranda than those prescribed or approved by the Commis- sion.* ''■ Act to Regulate Commerce. Section 20. 3 Ibid. * Ibid. 967 ACCOUNTS AND RECORDS OP CARRIERS. [§§ 699-703 § 699. Commission may Employ Special Examiners to Inspect Accounts and Records of Carriers. The Act authorizes the Commission to employ special agents or examiners, who shall have authority under the order of the Commission to inspect and examine any and all accounts, records, and memoranda kept by carriers subject to its juris- diction.^ This provision applies to receivers of carriers and operating trustees." §700. Punishment of Carrier by Forfeiture for Failure to keep Accounts or Records £is Prescribed by Com- mission or Allow Inspection thereof. See Section 766, post. § 701. Punishment of Person for False Entry in Accounts or Records, or Mutilation of Accounts or Records, or for keeping other Accounts than those Prescribed by Commission. See Section 767, post. § 702. Punishment of Special Examiner who Divulges Facts or Information without Authority. See Section 768, post. % 703 Destruction of Accounts, Records and Memoranda. IT A. When Destruction oe Papers Permissible. The Act as amended February 25, 1909, provides that the Commission may, in its discretion, issue orders specifying such operating, accounting, or financial papers, records, books, blanks, tickets, stubs, or documents of carriers which may, after a reasonable time be destroyed, and prescribing the length of time such books, papers, or documents shall be preserved.'^ 5 Act to Regulate Commerce. Section 20. 6 Ibid. ^ Ibid. § 703] INTEESTATE TEANSPOETATION. 968 11 B. Eecoeds akd Memoeanda touching Issuance op Passes. The Commission has enjoined carriers against the destruc- tion of records or memoranda touching the issuance of passes, and the passes themselves, coming into the hands of the car- riers after use, for a period of not less than five years until further order of the Commission.* 8 Rule 95, Con. Rul. Bui. No. 4 (June 30, 1908). CHAPTER XL. REPORTS OF CARRIERS TO THE INTERSTATE COM- MERCE COMMISSION. Section 704. Annual Report of Carriers to the Interstate Commerce Commis- sion. 705. Monthly or Special Reports of Carriers to the Interstate Com- merce Commission. 706. Apportionment of Total Operating Expenses between Freight and Passenger Service not Practicable. 707. Before whom Acknowledgments to Reports may be Taken. 708. Reports of Government-Aided Railroad and Telegraph Lines to the Commission. 709. Accident Reports. 710. State Railroads engaged in Interstate Commerce required to file Reports. 711. State Railroads engaged Exclusively in Intrastate Business not required to file Reports with Interstate Commerce Commission. 712. Person who has Severed his Connection with a Railroad Corpora- tion not required to make Report. 713. Reports of Carriers under the Hours-of-Service Law. 714. Copies of Annual Reports of Carriers to be Preserved as Public Records in Custody of the Secretary of the Commission. 715. Certified Copies of Reports as Prima Face Evidence. § 704. Annual Reports of Carriers to the Interstate Commerce Commission. 11 A. Commission Authorized to Eequire Annual Eepoets. The Act to Regulate Commerce authorizes the Interstate Commerce Commission to require annual reports from all com- mon carriers subject to the provisions of such Act, and from the owners of all railroads engaged in interstate commerce as defined by the Act.^ 1 Act to Regulate Commerce. Section 20. 969 § 704] INTERSTATE TEANSPOETATION. 970 In pursuance of this power the Commission requires car- riers to render detailed annual reports.^ In respect to filing annual reports, the statute is manda- tory, and as it has been repeatedly held by the Supreme Court of the United States that every carrier participating in the carriage of property between interstate points although its physical line is wholly within a single State, is engaged in interstate commerce, all such carriers are within the oper- ation of the statute; it will be seen that under the provisions of the Act, hardly a carrier in the United States is exempt from the requirements to make annual reports to the Com- mission.' Under the present method of conducting joint traffic, near- ly every railroad, however short its line, unites in making through rates, under which it issues and receives tickets or bills of lading, in connection with roads in other States, upon which passengers and freight are transported across State boundaries; the revenues of every such road are derived, to a greater or less extent, from the traffic which is regulated by the provisions of the Interstate Commerce Law.* T[ B. Commission Empoweeeu to Prescribe Eorm of Annual Eepoets. The Act authorizes the Commission to prescribe the manner in which the annual reports of carriers shall be made.^ Very soon after its organization, the Commission after long correspondence and consultation with expert accountants, adopted a form of annual report calculated to develop the information required by the Act. A general basis was found in the provisions of the statute itself. The obligations imposed by State legislatures upon the various State Railroad Commissions were also important." This form with slight modifications, has been retained ever 2 Eighth Annual Report of I, C. C. (1894). 3 Seventh Annual Report of I. C. C. (1893). 4 Second Annual Report of I. C. C. (1888). 6 See note 1, supra. 8 See note 4, supra. S^l REPORTS OF CARRIERS TO COMMISSION. [§ 704 since, and when properly filled elicits the information re- quired. This form is so well adapted to its purpose that it has been adopted by most of the States for the reports which are required from carriers by the laws of the States.'' H C. Commission mat Eequire ant Information Desired. The Commission is authorized to require from carriers speci- fic answers to all questions upon which it may need infor- mation.* HD. "What Annual Eeports shall Contain. The statute requires that annual reports of carriers shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same ; the dividends paid, the surplus fund, if any, and the number of stockholders, the funded and floating debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipments; the number of employees and the salaries paid each class; the accidents to passengers, employees, and other persons, and the causes thereof; the amounts expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balance of profit and loss; and a complete exhibit of all the financial operations of the carrier each year, including an annual balance sheet.® Said detailed reports shall contain all the required statistics for the period of twelve months ending on the thirtieth day of June in each year.^" The effect of this section of the Act, relative to annual reports, is to require every carrier to furnish a full and com- plete history of the corporate organization, stock, and securi- ties ; its property, cost and value ; its income, expenses, debts, and fixed charges; in short, a full exact history of the prop- ' See note 3, supra. 8 See note 1, supra. 9 Ibid. 10 Ibid. § 704] INTEESTATE TRANSPOETATIOJST. 972 erty controlled and a detailed exhibit by items of the busi- ness and financial operations for the year.^^ Before the passage of the Act to Regulate Commerce pri- vate enterprises had collected the figures representing the financial and business operations of railroads, but they were not furnished under the requirements of law, and therefore not subject to governmental supervision. "While probably correct in the main they still lack the authenticity which attaches to sworn reports required by positive enactment. Some of the States also required sworn returns to their own officers but these reports, not embracing operations outside of the State, were of only local importance.^^ A bureau of the Department of the Interior had for some years previous to the year 1887, been engaged in the collec- tion of statistical information in great detail from a large number of important roads which received aid from the United States in the form of land grants and subsidies; but as stated, these statistics were confined to the Government- aided lines.^^ , The carriers themselves were accustomed to collate and present annually, for the use of directors and stockholders, information in more or less detail concerning the workings of their respective lines. Some of the information which it has been the custom of intelligently managed corporations to tabulate and make public, is of special value to their own officials and subordinates in securing the economical working of their lines, and in adjusting transportation charges; and the importance of statistics of this character is many times increased by an opportunity for comparison between results obtained upon different lines in the same or in different sec- tions of the country. However, these reports naturally were limited in their scope and could not be said to be authentic. The Senate. Select Committee in its report to Congress recog- nized the importance of reliable and accurate information for the use of investors in railroad securities — a class of the 11 See note 3, supra. 12 Ibid. 13 See note 4, supra. 13 See Appendix for copy of Accident-Reports Act. 973 REPORTS OF CARRIERS TO COMMISSION. [§ 704 community whose almost sole dependence in the years pre- vious to the passage of the Act had been the unofficial though painstaking annual compilation by private enterprise of a manual,^* the great circulation of which demonstrated the necessity for its existence. ^° The framers of the Act of 1887 foresaw that minute annual reports would not only be of great aid to the Commission in the performance of its duties, but also that they would be of great interest to the public generally.^^ It is apparent that it was the purpose of Congress to inau- gurate an annual collection of statistics, which should faith- fully present the entire transactions of every railroad in the United States for the preceding year, and that the informa- tion so obtained should be authoritative and trustworthy.^' Commission may Require Additional Information. Such reports shall also contain such information in rela- tion to rates or regulations concerning fares or freights or agreements, arrangements or contracts affecting the same as the Commission may require.^' U E. "When Annual Reports are to be Filed. The annual reports as stated above, must be made out under oath and filed with the Commission, at its office in "Washington, on or before the thirtieth day of September in each year.^° T[ P. Commission mat Extend Time for filing Eeports. The statute gives the Commission authority to grant addi- tional time in any case for the filing of annual reports.^" 14 Poor's Manual of the Railroads of the United States. 15 See note 4, supra. 18 See note 3, supra. IT See note 4, supra. 18 See note 1, supra. 19 Ibid. 20 Ibid. § 705] INTERSTATE TEANSPOETATION. 974 U G. Punishment by Forfeiture for Failure to File Annual Eeport. See Section 765, pa/ragraph A, post. § 705. Monthly or Special Reports of Carriers to the Interstate Commerce Commission. T[ A. Commission mat Eequire Monthly Eepoets. The statute gives the Commission authority to require car- riers subject to the provisions of the Act to Eegulate Com- merce to file monthly reports of earnings and expenses. ^^ In pursuance of this authority the Commission requires all carriers subject to its jurisdiction to file monthly reports of operating revenues and operating expenses. T[ B. Commission may Eequire Special Eepoets. The Act empowers the Commission to require from carriers special reports for a specified period.^^ Under the authority to require special reports, the Division of Statistics and Accounts in the year 1907 made an investi- gation into the intercorporate relations of legally independent carriers, organized into systems for the purpose of unified and concentrated control and management, its prime purpose being to make clear the extent and character of intercorporate relationship.^^ 1[ C. Carriers' Monthly Eepoets to be furnished in Duplicate. The Commission has ordered that beginning as of January 1, 1908, monthly reports of revenues and expenses as provided for in the order of the Commission, bearing date July 10, 1907, shall be filed in duplicate, and on or before the last day of the month immediately foUovi^ing the month covered by the report shall be deposited in the United States Post-Office, post- age prepaid, and plainly addressed to the Division of Statis- 21 See note 1, supra. 22 Ibid. 23 Twenty-First Annual Report of I. C. C. (1907). 975 KEPOKTS OF CAEEIERS TO COMMISSION. [§§ 706-708 tics and Accounts, Interstate Commerce Commission, "Wash- ington, D. C." TI D. Punishment by Fokeeituee foe Pailuee to Pile Monthly or Special Eepoets. See Section 765, paragraph A, post. § 706. Apportionment of Total Operating Expenses between Freight and Passenger Service not Practicable. Expert railway accountants agree generally that the pro- portions of the total operating expenses assignable to freight and passenger service cannot be ascertained or ever fairly estimated. The Commission formerly required carriers to report esti- mates of the cost of the two services according to the freight and passenger mileage after assignment of those expenses belonging exclusively to each of the two great divisions of traflSc, but this requirement was discontinued by the Com- mission after careful consideration and as the immediate re- sult of the investigation and report by a committee of the National Association of Railway Commissioners in 1892, which found the apportionment of expenses to be merely an arbi- trary division and without value, and stated that the opinions of the railway accounting officers were practically unanimous in favor of discontinuing the attempt to apportion expenses between passengers and freight traffic.^' § 707. Before whom Acknowledgments to Reports may be taken. The oath required by the statute as aforesaid may be taken before any person authorized to administer an oath by the laws of the State in which the same is taken.^° § 708. Reports of Government-Aided Railroad and Telegraph Lines to the Commission. See Section 755, post. 24 Rule 30, Con. Rul. Bui. No. 4 (Jan. 15, 1908). 25 Consolidated Forwarding Co. v. Southern Pacific Co. et al. (1905), 10 I. C. C. R. 590. 26 See note 1, supra. § 709] INTERSTATE TBANSPOETATION. 976 § 709. Accident Reports. If A. Monthly Eepoets of Eailway Accidents. The statute makes it the duty of the general manager, superintendent, or other proper officer of every common car- rier engaged in interstate commerce by railroad to make to the Interstate Commerce Commission at its office in Wash- ington, District of Columbia, a monthly report, under oath, of all collisions of trains or where any train or part of a train accidentally leaves the track, and of all accidents which may occur to its passengers or employees while in the service of such common carrier and actually on duty, which report shall state the nature and causes thereof, and the circum- stances connected therewith.^^ 1[ B. Failure to make Eepoet within Thirty Days after End OF Each Month a Misdemeanor. See Section 765, paragraph A, post. U C. Efforts not to be used in Evidence against the Carrier. The statute provides that neither said report nor any part thereof shall be admitted as evidence or used for any purpose against such railroad so making such report in any suit or action for damages growing out of any matter mentioned in said report."* T[D. Commission to Prescribe Form of Eeport. The Interstate Commerce Commission is authorized to pre- scribe for the common carriers subject to the provisions of the statute a method and form for making the reports as stated above."' ^ E. Purpose of Accident Eeports. By the statute'" referred to above the Commission is re- 27 Section 1. Accident-Reports Act. 28 Section 3. Accident-Reports Act. 29 Section 4. Accident-Reports Act. 30 Accident-Reports Act, approved March 3, 1901 — Public No. 171 (31 Stat, at Large, 1446). 9V7 REPORTS OF CARRIERS TO COMMISSIOIT. [§ 709 quired to gather statistics of all collisions and derailments on railroads doing interstate business, and of accidents to passengers and to employees on duty; the railroad companies are required to report the accidents, stating the nature and cause, in reports of such form as the Commission shall pre- scribe.'^ The Commission in one of its annual reports to Congress'- stated: "By the terms of the Act the scope of the reports is strictly limited ; yet it is evident that the purpose of Congress was to secure the fullest possible information concerning the cause or causes of every accident reported ; and in view of the existence of Federal statutes dealing particularly with coup- lers, power brakes, and grabirons or handholds, accidents in which these details figure, either as main causes or other- wise, may be said to merit especial attention. The primary object of the statute is, obviously, to promote the safety of passengers and of railroad employees; and this object is to be accomplished, so far as these records can accomplish it, by making the most instructive exhibit possible of those acci- dents which are preventable. Experience has shown that some classes of accidents, including many personal casualties in which the person injured is himself chiefly at fault, occur in such uniform percentages, year after year, in proportion to the total number of persons employed (or, in the case of passengers, to the total number transported), that they may be looked upon as unavoidable. These, under the Act, are now reported to the Commission in large numbers; yet it is not apparent that any useful purpose would be subserved by publishing the details of cases of this kind, as is attempted by some public authorities." IT P. Additional Legislation Eecommended by the Inter- state Commerce Commission. In its Annual Report to Congress of 1905, the Commission stated: "Under Section 20 of the original Act, the Com- mission is authorized to require annual reports from carriers 31 Fifteenth Annual Report of I. C. C. (1901). 32 Ibid. Eegulation — 63. § 710] INTEHSTATE TKANSPOETATIOIT. 978 subject to its provisions, which shall contain 'specific answers to all questions upon which the Commission may need infor- mation.' Acting upon this general authority, the Commis- sion has called for yearly reports, of all classes of accidents, although that particular matter is not included in the items mentioned in a subsequent part of the section and this infor- mation has usually been furnished in the annual reports, though not always in a satisfactory manner. "The Act of March 3, 1901, commonly known as the 'Acci- dent-Report Law' requires in substance monthly reports of accidents to passengers and to employees actually on duty, but does not require any reports of accidents to other per- sons. This results in a duplication of reports as to certain classes of accidents, but does not secure complete and reliable returns as to other accidents. "We recommend that the Act of 1901 be so amended that the monthly reports thereby required shall include accidents of every kind and to all classes of persons, the form of such reports to be regulated by the Commission. The matter of accidents could then be omitted in the annual reports, since the whole subject would be covered by the monthly reports. This would at once simplify the law and give greater value to our accident statistics.'"' § 710. State Railroads engaged in Interstate Commerce required to file Reports. Under the Act to Eegulate Commerce, as amended June 29, 1906, a carrier by railroad operating entirely within a State becomes subject to the provisions of the Act if it en- gages in interstate transportation, although it has entered into no arrangement with any other carrier by railroad or water for the movement of traffic between points upon its line and points without the State. The movement of freight from a point in one State to a point in another State by rail must be regarded as an entirety and every road participating in that movement thereby ba- ss Nineteenth Annual Report of I. C. C. (1905). 979 KEPOETS OS OAEKIBES TO COMMISSION. [§ 711 comes subject to the Act to Regulate Commerce even though its service is performed entirely within a single State.^* A railroad company whose road lies entirely within the limits of a single State becomes subject to the Act to Regu- late Commerce by participating in a through movement of traffic from a point in the one State to a point in the State within which it is located, although its own service is per- formed entirely within the latter State. '^ Such common car- riers therefore are required to file their annual reports with the Interstate Commerce Commission. §711. State Railroads engaged Exclusively in Intrastate Commerce not Required to File Reports with Inter- state Commerce Commission. A railroad lying wholly within a State, which transports freight, whether coming from within or without the State, solely on local bills of lading, under special contract limited to its own line and without dividing charges with any other carrier or assuming any other obligations to or for them, does not come within the provisions of the Interstate Com- inerce Act and is not bound to make any report of its busi- ness to the Interstate Commerce Commission.^* A railroad company whose line is wholly within a single State, and which,, although it carries freight to points be- yond such State, never issues bills of lading to points beyond its own line, receives no freight on through bills of lading, and has no arrangement with other roads for a conventional division of charges, or for a common control or arrangement is not within the purview of the Act to Regulate Commerce and need not file its annual report with the Interstate Com- merce Commission.^'' 34 Leonard v. K. C. S. Ry. Co. et al. (1908), 13 I. C. C. R. 573. 35 Baer Bros. Merc. Co. v. Mo. Pac. Ry. Co. et al. (1908), 13 I. C. C. R. 329. 36 United States, ex rel. Interstate Commerce Commission, v. Chi- cago, K. & S. R. Co. (1897), 81 Fed. Rep. 783. 37 I. C. C. V. Bellaire, Z. & C. Ry. Co. (1897), 77 Fed. Rep. 942. §§ 712-715] INO^EESTATE TEANSPOETATION. 980 § 712. Person who has Severed his Connection with a Rail- road Corporation, not required to make Reports. Where a writ of mandamus, commanding a railway com- pany to make out its annual report, is served on the secre- tary and treasurer, who shows that he has not the possession of the books necessary to enable him to make out the report and that he has resigned, and is no longer connected with the railroad, a motion to commit for contempt is denied.^' § 713. Reports of Carriers under the Hours-of-Service Law. The Commission has held that in as much as the Act to Regulate Commerce empowers the Commission, in the admin- istration of that law, to require reports under oath, a similar authority may lawfully be exercised by the Commission in the execution of the Hours-of-Service Law.^" § 714. Copies of Annual Reports of Carriers to be Preserved as Public Records in Custody of the Secretary of the Commission. The statute provides that the statistics, tables, and figures contained in the annual reports of carriers made to the Com- mission, as required by the provisions of the Act, shall be preserved as public records in the custody of the secretary of the Commission.*" § 715. Certified Copies of Reports as Prima Facie Evidence. The statute provides that the statistics, tables, and figures contained in the annual reports of carriers made to the Com- mission, and preserved in the custody of the secretary, shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial proceedings; and copies of or extracts from any of said reports, made public records as stated above, certified by the secretary under its seal, shall be received in evidence with like effect as the originals.*^ 38 United States ex rel. Interstate Commerce Commission v. Sea- board Ry. Co. of Alabama (1898), 85 Fed. Rep. 955. 30 Twenty-Second Annual Report of I. C. C. (1908). *o Act to Regulate Commerce. Section 16. 41 Ibid. CHAPTEE XLI. COMMODITIES CLAUSE. Section 716. Provision of the Statute Prohibiting Railroad Companies from Transporting Commodities in which they are Interested. 717. Constitutionality and Interpretation of the Statute. § 716. Provision of the Statute Prohibiting Railroad Carriers from Transporting Commodities in which they are Interested. The Act to Regulate Commerce as amended June 29, 1906, provides that:^ "From and after May first, nineteen, hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its use in the conduct of its busiaess as a common carrier." § 717. Constitutionality and Interpretation of the Statute. The Supreme Court of the United States in holding the above statute constitutional and construing its terms, held,^ that: 1 Act to Regulate Commerce. Section 1. (34 Stat, at L. 584, Chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892.) 2 United States, ex rel. Attorney General, v. IJelaware & Hudson Co. (1909), 213 U. S. 366, 53 L. ed. 836, 29 Sup. Ct. 527, reversing 164 Fed. Rep. 215, in vsrhich the Circuit Court of Appeals decided against the constitutionality of the provision, because, as it was alleged, it deprived the corporations of their liberty and of their property. 981 § 717] INTEESTATE TRANSPORTATION. 982 The dissociation of railway companies prior to transpor- tation from the articles or commodities transported, whether such association results from manufacture, mining, produc- tion, or ownership, or interest, direct or indirect, is the com- mon purpose of the provisions of the Hepburn Act of June 29, 1906, making it unlawful for a railway carrier to trans- port in interstate commerce, articles or commodities "manu- factured, mined, or produced by it or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect." Transportation when the thing to be transported has been manufactured, mined, or produced by the carrier or under its authority, and at the time of transportation the carrier has ' not, in good faith, before the act of transportation, dissociated itself therefrom, or when the carrier owns the thing to be transported, in whole or in part, or when the carrier, at the time of transportation, has an interest therein, direct or indi- rect, in a legal or equitable sense, is all that is forbidden by the provisions of the Hepburn Act of June 29, 1906, making it unlawful for a railway carrier to transport in interstate commerce, articles or commodities "manufactured, mined, or produced by it or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect. ' ' The ownership by a railway carrier of stock in a bona fide corporation manufacturing, mining, producing, or owning the commodity carried is not the "interest, direct or indirect," in such commodity, forbidden to the carrier by the Hepburn Act of June 29, 1906, but such words are to be taken as em- bracing only a legal or equitable interest in the commodities to which they refer. Congress could properly enact, as a regulation of com- merce, so much of the Hepburn Act of June 29, 1906, as for- bids a railway carrier from transporting articles or commodi- ties in interstate" commerce when such article or commodity has been manufactured, mined, or produced by the carrier, or under its authority, and, at the time of transportation such carrier has not in good faith, before the act of trans- 983 COMMODITIES CLAUSE. [§ 717 portation, dissociated itself therefrom, or when the carrier owns the article or commodity to be transported, in whole or in part, or when the carrier, at the time of transportation, has an interest therein, direct or indirect, in a legal or equitable sense, although, by existing state legislation, such carrier may have a lawful right of ownership of or associa- tion with the articles or commodities upon which these provi- sions operate. Kailway companies enjoying the right, under existing state legislation, of ownership of or association with the articles or commodities carried, are not denied the due process of law guaranteed by the United States ■ Constitution, Fifth Amend- ment, by so much of the provision of the Hepburn Act of June 29, 1906, as forbids a railway carrier from transporting articles or commodities in interstate commerce when such article or commodity has been manufactured, mined, or pro- duced by the carrier or under' its authority, and, at the time of transportation, such carrier has not, in good faith, before the act of transportation, dissociated itself therefrom, or when the carrier owns the article or commodity to be transported, in whole or in part, or when the carrier, at the time of trans- portation, has an interest therein, direct or indirect, in a legal or equitable sense. Exception in Favor of Timber and Manufactured Products thereof. The exception in favor of timber and manufactured pro- ducts thereof, contained in the provisions of the Hepburn Act of June 29, 1906, forbidding railway carriers from trans- porting in interstate commerce, articles or commodities with which they are associated, or in which they are interested, does not render the statute invalid for discrimination. The following is a summary of Mr. Justice White's decision: "1. The claim of the Government that the provisions con- tained in the Eailroad Kate Act approved June 29, 1906, com- monly called the commodities clause, prohibits a railway com- pany from moving commodities in interstate commerce be- cause the company has manufactured, mined, or produced them, or owned them in whole or in part, or has had an in- § 717] INTERSTATE TRANSPOETATION. 984 terest, direct or indirect, in them wholly irrespective of the relation or connection of the carrier with the commodities at the time of transportation, is decided to be untenable. It is also decided that the provision of the commodities clause re- lating to interest, direct or indirect, does not embrace an interest which a carrier may have in a producing corporation as the result of the ownership by the carrier of stock in such corporation irrespective of the amount of stock which the car- rier may own in such corporation, provided the corporation has been organized in good faith. "2. Rejecting the construction placed by the Government upon the commodities clause, it is decided that that clause, when all its provisions are harmoniously construed, has solely for its object to prevent carriers engaged in interstate com- merce from being associated in interest at the time of trans- portation with the commodities transported, and therefore the commodities clause only prohibits railroad companies engaged in interstate commerce from transportilig in such commerce commodities under the following circumstances and condi- tions : " (a) When the commodity has been manufactured, mined, or produced by a railroad company or under its authority, and at the time of transportation the railroad company has not, in good faith, before the act of transportation, parted with its interest in such commodity. "(b) "When the railroad company owns the commodity to be transported in whole or in part. "(c) When the railroad company, at the time of trans- portation, has an interest, direct or indirect, in a legal sense in the commodity, which last prohibition does not apply to commodities manufactured, mined, produced, owned, etc., by a corporation because a railroad company is a stockholder in such corporation. Such ownership of stock in a producing company by a railroad company does not cause it, as the owner of the stock, to have a legal interest in the commodity manufactured, etc., by the producing corporation."^ 8 For press comments on the Supreme Court decision, see summary in "The Literary Digest" May 15, 1909, issue. CHAPTEE XLII. HOURS-OF-SERVICE LAW. Section 718. Context of the Hours-of-Service Law. 719. Purpose of tlie Law. 720. Passage of the Act. 721. Scope of the Law. 722. Sixteen Hours the Maximum Continuous Service of Trainmen. 723. Ten Consecutive Hours off Duty after having been Sixteen Con- secutive Hours on Duty. 724. Eight Consecutive Hours off Duty after having been on Duty Sixteen Hours in the Aggregate. 725. Service Hours of Telegraph and Telephone Operators. 726. Twenty-Four Hour Period Defined. 727. Term "Employee" Defined. 728. Employees of Carriers to whom Provisions of Law are not Ap- plicable. 729. Employees delayed in the Service caused by Casualty or Unavoid- able Accident or Act of God. 730. Employees who are "Deadheading" are not within the meaning of the law. 731. Electric Lines which are Interstate Carriers. 732. Perry Employees. 733. Crews of Wrecking or Relief Trains. 734. Jurisdiction of Interstate Commerce Commission over the En- forcement of the Law. 735. Administrative Relief from the Requirements of the Law. 736. Penalty for Violation of the Law by Carriers. 737. Reports of Carriers to the Commission. § 718. Context of t!he Hours-of-Service Law. For provisions of the Hours-of-Service Law,^ see Appendix, 23. §719, Purpose of the Law. The incidents immediately preceding the passage of the Hours-of-Service Law and the circumstances connected with 1 34 Statutes at Large 1415, approved March 4, 1907. 985 §§ 720-733] INTERSTATE TRANSPOKTATION. 986 and surrounding its adoption leave little doubt as to the pur- pose of Congress to minimize the dangers incident to railroad travel, by preventing men from being overworked. Of course the period for which railroad employees may, without hard- ship, perform their duties varies with their physical condition, but the hours of service prescribed by the Act are such as the legislature has, from experience and observation, learned that men of their calling and in their ordinary state of health may consistently observe. The object of the Act, therefore, is to limit the periods of time in which railroad employees may be required or per- mitted to remain on duty.^ § 720. Passage of the Act. The Hours-of-Serviee Law^ was approved March 4, 1907, at 11:50 A. M., and was made to take effect and be in force one year after its passage. §721. Scope of the Law. The law is applicable to every common carrier subject to the Act to Regulate Commerce and to every employee con- cerned in the physical operation of such company's trains.* §722. Sixteen Hours the Maximum Continuous Service of Trainmen. The Act provides that it shall be unlawful for any common carrier, its oiBcers or agents, subject to the Act to require or permit any employee to be or remain on duty for a longer period than sixteen consecutive hours.^ §723. Ten Consecutive Hours off Duty after having been Sixteen Consecutive Hours on Duty. The Act provides that whenever any employee of any com- mon carrier subject to its provisioijis, shall have been on duty for sixteen hours he shall be relieved and not required or per- 2 Twenty-Second Annual Report of I. C. C. (1908). 8 See note 1, supra. < See note 2. supra. 5 Section 2 of Law. 987 HOURS-OF-SEKVICE LAW. [§§ 724, 735 mitted again to go on duty until he has had at least ten con- secutive hours off duty." The requirement for ten consecutive hours off duty applies only to such employees as have been on duty for sixteen con- secutive hours.'' § 724. Eight Consecutive Hours off Duty after having been on Duty Sixteen Hours in the Aggregate. The Act provides that no such employee who. has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty.= The requirement for eight consecutive hours off duty ap- plies only to employees who have not been on duty sixteen consecutive hours but have been on duty sixteen hours iii the aggregate out of a twenty-four-hour period.® § 725. Service Hours of Telegraph and Telephone Operators. The Act contains a proviso that no operator, train dis- patcher or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or de- livers 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 thi's 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.^" A "week" means a calendar week, beginning with Sunday." 8 Section 2 of Law. 7 See note 2, supra. 8 Act. Section 3. 9 See note 2, supra. 10 See note 8, supra. 11 See note 2, supra. §§ 736-738] INTEESTATB TRANSPORTATION. 988 A telegraph or telephone operator who is employed in a night and day office may not be required to perform duty in any capacity or of any kind beyond nine hours of total service in any twenty-four-hour period.^^ §726. Twenty-Four-Hour Service Defined. A twenty-four-hour period begins when the employees goes on duty after an interim of not less than eight consecutive hours off duty.^^ Time "on duty" includes the entire period of service or responsibility therefor." §727. Term "Employee" Defined. The Act defines the term "employee" to mean persons actually engaged in or eonnneeted with the movement of trains. ^^ § 728. Employees of Carriers to whom Provisions of Law are not Applicable. 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 affect- ing 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."^" 12 See note 2, supra. IS Ibid. " Ibid. 15 Act. Section 1. 18 See note 5, supra. 989 HOUES-OF-SEKVIOE LAW. [§§ 729, 730 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 six- teen 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.^^ § 729, Employees delayed in the Service caused by Casualty or Unaveidable Accident or Act of God. The Act provides that its provisions 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 re- moves the application of the law to that trip.^° The above exemptions prescribed by the law contemplate only such accidents as could not by the exercise of diligence on the part of the carriers, their agents or officers, have been anticipated and prevented.^" §730. Employees who are "Deadheading" are not within the Meaning of the Law. Employees "deadheading" on passenger trains or on freight trains and not required to perform, and not held responsible for the performance of, any service or duty in connection with the movement of the train upon which they are "deadhead- ing," are not, while so "deadheading," "on duty" as that phrase is used in the Act regulating the hours of labor.^^ IT Rule 88, Con. Rul. Bui. No. 4 (June 25, 1908). 18 See note 8, supra. 19 See note 17, supra. 20 Rule 108, Con. Rul. Bui. No. 4 (November 10, 1908). 21 Rule 74, Con. Rul. Bui. No. 4 (May 5, 1908). §§ 731-734] INTEKSTATE TEANSPOETATION. 990 § 731. Electric Lines which are Interstate Carriers. Upon inquiry whether the Hours-of-Serviee Law applies to electric street car lines which are interstate carriers : Eeldj That it applies to all railroads subject to the provisions of the Act to Eegulate Commerce, as amended, including street railroads when engaged in interstate eommerce.^^ § 732. Ferry Employees. The Hours-of-Service Law does not apply to employees on a ferry, even though the ferry be owned by a railroad com- pany. The law applies to employees connected with the move- ment of trains, and hence does not embrace employees engaged only in the operation of a ferry. This ruling does not apply to car ferries.^" § 733. Crews of Wrecking or Eelief Trains. The provisions of the Hours-of-Service Law do not apply to the crews of wrecking or relief trains.^* § 734. Jurisdiction of Interstate Commerce Commission over the Enforcement of the Law. It is the duty of the Interstart;e Commerce Commission to execute and enforce the provisions of the Hours-of-Service Aet.^= The fourth section of the Act provides that : " * * * All powers granted to the Interstate Commerce Commission are hereby extended to it iii the execution of this Act." It is understood, and so maintained by the Commission, that Congress, in using this expression intended to confer for the enforcement of the Hours-of-Service Law each and every pow- er previously granted to the Commission. °^ 22 Rule 56, Con. Rul. Bui. No. 4 (April 7, 1908). 23 See note 20, supra. 2* See note 5. supra. 26 Act. Section 4. 26 See note 2, supra. 991 HOUES-OF-SERVICE LAW. [§ 735 § 735. Administrative Relief from the Bequirements of the Law. The Georgia Southern & Florida Railway Company on Jan- uary 15, 1908, filed its petition with the Interstate Commerce Commission for relief from the requirements of the law under the proviso clause of Section 2 of the Act.^^ The petition asked that operators and agents at three of its stations after handling train orders for nine hours or less, may then be required to work a sufficient numbers of hours as clerks or otherwise to complete twelve hours in each twenty-four hours; that agents at six stations who handle very few train orders or messages may be required to remain on duty from thirteen to fifteen hours, and that an agent and operator may be allowed to divide the time during which the office at one station is kept open. The general showing as to each of these nine stations, and the only grounds upon which as to them an extension of time was asked, was the ease with which the entire service of the company was performed by two men at each station and the needless expense of in- creasing the number. There was no allegation that the com- pany had insufficient funds to pay an increased force of men as may have been necessary to keep those offices open the same as at the time of the petition and comply with the limi- tation upon the hours of labor imposed by the Act in question. Knapp, chairman, in delivering the opinion of the Com- mission denying the petition for relief, said: "It is entirely clear to us that this petition under the most liberal interpretation of the facts set forth, presents no case for administrative relief, temporary or otherwise, from the requirements of this law. "The only authority conferred upon the Commission in this regard is expressed as follows : "The Interstate Commerce Commission may after full hearing in a particular case and for good cause shown, eaytend the p'eriod within which a common carrier shall comply with the provisions of this proviso as to such case. "The proviso referred to is that part of Section 2 which provides 27 In re G. S. & F. Ry. Co. (1908), 13 I. C. R. 134. § 735] INTEKSTATE TEANSPOETATION. 993 that no employee who handles train orders by telegraph or telephone shall be required or permitted to be on duty more than nine hours ont of the twenty-four at offices continually operated night and day, nor more than thirteen hours out of the twenty-four at offices oper- ated 'only during the daytime,' except in case of emergency, when four additional hours may be required on not more than three days in any week. No other provision of the law can be extended or modified iy the Commission. "The power to extend under the proviso is extremely limited. This is evident from the plain import of the language above quoted, from the context to which it relates and from the obvious purpose of the entire enactment. It seems clear to us that nothing more was in- tended than to authorize the Commission, in exceptional instances where conditions are unusual or unforeseen, to enlarge somewhat the time allowed to prepare for compliance. Conditions which are com- mon to many railroads or to a substantial percentage of telegraph stations are conditions which must have been taken into account when this law was passed and do not constitute 'a particular case' for relief by the Commission. "We are, therefore, of the opinion that the petition filed by this company does not show 'good cause' for extending the period within which it shall comply with the law at the several stations named, because it sets forth no exceptional or peculiar conditions which render observance impracticable at any of these stations, but merely alleges a state of facts tending to show that the law ought not to be there enforced on account of the small number of train orders and messages handled and the absence of any need or occasion for increas- ing the force of telegraphers. This is pureljr a question of legislative policy which was and must have been determined by the Congress adversely to the company and the Commis- sion has no right or authority to postpone the taking effect of the Act merely because compliance with its provisions will involve inconvenience and financial hardship. The situation at the stations in question, as described in the petition, is in no sense unusual or of recent origin. It is a situation with which the Congress was well acquainted when the law was enacted, for it is practically identical with the situation which has long existed for years at hundreds if not thousands of stations and has long been a matter of common knowledge. The Act was passed with full understanding that conditions substantially the same as these here considered were so numer- ous in nearly every part of the country as to be characteristic 993 HOUES-OF-SERVICE LAW. [§§ 736, 737 of railway practice, and the law was evidently intended to apply at stations of this familiar type. To extend the time allowed for compliance at this class of stations, for extension in this case logically involves like extensions in all similar cases, would practically nullify the law during the period of postponement as to a large percentage of the employees for whose benefit the law was enacted, and presumably deprive the traveling public meanwhile of the added safeguard against accident which the law was^ designed to secure. The purpose of this enactment and the intention to give it application to all employees who handle train orders, whether much or little of their time is occupied with that duty, are so clear and explicit as not to be open to question. It is equally clear that the authority of the Commission to grant an extension was intentionally limited to instances of special and unforeseen conditions. It was plainly not contemplated that conditions which are common and well known, which are so frequently found on every railway as to comprise a recognized class, should be regarded as a sufficient basis for administrative re- lief." §736. Penalty for Violation of the Law by Carriers. See Section 112, post. § 737. Reports of Carriers to the Commission. The Commission has held that in as much as the Act to Eegulate Commerce empowers the Commission, in the admin- istration of that law, to require reports under oath, a similar authority may lawfully be exercised by the Commission in the execution of the Hours-of-Service Law.^^ 28 See note 2, supra. EEGULATIOlir — 63. CHAPTER XLin. EMPLOYERS' LIABILITY ACT. Section 738. An Act relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers engaged in Commerce between the States and between the States and For- eign Nations to their Employees — Passed June 11, 1906. 739. Employers' Liability Act of June 11, 1906, declared Unconstitu- tional. 740. An Act relating to Liability of Common Carriers by Railroad to their Employees in certain Cases. — Passed April 22, 1908. 741. Recovery for Loss to Family. 742. Liability for Injuries within the Territories. This chapter on the Employers' Liability Act has been incorporated in this work, not because the Interstate Com- merce Commission has any jurisdiction in the premises, but because of its kindred relation to the subject under discussion and of the principles involved. § 738. An Act relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers engaged in Commerce between the States and between the States and Foreign Nations to their Employees^— Passed June 11, 1906. Be it enacted iy the Senate and House of Representatives of the United States of America in Congress Assembled, That every common carrier engaged in trade or commerce in the District of Columbia, or in any Territory of the United btates, or between the several States, or between any Territory and another, or between any Territory or Terri- tories and any State or States, or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or Foreign nations, shall be liable to any of its employees, or, in case of his death, to his personal representative for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency due to its negli- 1 Act of Congress of June 11, 1906, 34 Statutes at Large, 232, C, 3073. 994 995 employees' liability act. [§ 739 gence in its cars, engine?, appliances, machinery, track, roadbed, ways, or works. Section 2. That in all actions hereafter brought against any com- mon carrier to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee m.ay have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall he diminished by the jury in proportion to the amount of negligence at- tributable to such employee. All questions of negligence and contribu- tory negligence shall be for the jury. Section 3. That no contract of employment, insurance, relief bene- fit or indemnity for injury or death entered into by or on behalf of any employee, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute aniy bar or defense to any action brought to recover damages for personal in- juries to or death of such employee: Provided, however, That upon the trial of such action against any common carrier the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employee, or, in case of his death, to his personal representative. Section 4. That no action shall be maintained under this Act, unless commenced within one year from the time the cause of action accrued. Section 5. That nothing in this Act shall be held to limit the duty of common carriers by railroads or impair the rights of their em- ployees under the safety-appliance Act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three. §739. Employers' Liability Act of June 11, 1906, Declared Unconstitutional. In deciding the Employers' Liability Cases,^ the United States Supreme Court, per Mr. Justice White, said: "It remains only to consider the contention that the Act is constitutional, although it embraces subjects not within the power of Congress to regulate commerce, because one who engages in interstate commerce thereby submits all his busi- ness concerns to the regulating control of Congress. To state the proposition is to refute it. It assumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Constitution, in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Con- stitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in 2 Howard, Admx. v. 111. Cent. Rd. Co. et al. (1908), 207 U. S. 463; 52 L. ed. 297, 28 Sup. Ct. 141; see El Paso & N. R. Co. v. Gutierrez (1909), '215 U. S. 87, 54 L. ed. — . § 740] INTERSTATE TRANSPOKTATIOlSr. 996 interstate commerce as a privilege which cannot be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliter- ate all the limitations of power imposed by the Constitution and would destroy the authority of the States as to all conceiv- able matters which from the beginning have been and must continue to be under their control so long as the Constitution endures. * * * _ "Concluding as we do, that the statute, whilst it embraces subjects within the authority of Congress to regulate com- merce, also includes subjects not within its constitutional power, and that the two are so interblended in the statute that they are incapable of separation, we are of the opinion that the Courts below rightly held the statute to be repugnant to the Constitution and nonenforeeable ; and the judgments below are, therefore, affirmed." Mr. Justice Peekham, concurring, stated : "I concur in the proposition that as to traffic or other matters, within the State, the Act is unconstitutional, and it cannot be separated from that part which is claimed to be valid as relating to interstate commerce." Chief Justice Puller and Mr. Justice Brewer agreed in the concurring opinion. § 740. An Act relating to the Liability of Common Carriers by RaJlroad to their Employees in certain Cases^ — Passed April 22, 1908. Be it enacted by the Senate and Bouse of Representatives of the United States of America in Congress Assembled, That every common carrier by railroad, while engaging in commerce between any of the several States or Territories, or between any of the States and Terri- tories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be uable in 3 Act of Congress of April 22, 1908, 35 Statutes at Large, 65, C. 149. This Act was declared constitutional in Walsh v. N. Y. N. H. & »H. R. Co. 1909). 173 Fed. Rep. 494. 997 EMPLOTBKS' LIABILITY ACT. [§ 740 damages to any person suffering injury wMle he is employed by such common carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death result- ing in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Section 2. That every common carrier by railroad In the Territories, the. District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffer- ing injury while he is employed by such. carrier in any of said juris- dictions, or, in case of the death of such employee, to his or her per- sonal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then to such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Section 3. That in all actions hereafter brought against such com- mon carrier by railroad, under or by virtue of any of the provisions of this Act to recover damages for personal injuries to any employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee that may be injured or kijled shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. Section 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employ- ment in any case where the violation by such common carrier or any statute enacted for the safety of employees contributed to the injury or death of such employee. Section 5. That any contract, rule, regulation, or device whatso- ever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has con- tributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled on account of the injury or death for which said action is brought. Section 6. That no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued. Section 7. That the term "common carrier," as used in this Act, shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the busi- ness of a common carrier. §§ 741-742] INTERSTATE TRANSPOETATION. 998 Section 8. That nothing in this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their em- ployees under any other act or acts of Congress, or to affect the prose- cution of any pending proceeding or right of action under the Act of Congress entitled "An Act Relating to Liability of Common Carriers in the District of Columbia and Territories, and to Common' Carriers Engaged in Commerce Between tne States and Between the States and Foreign Nations to Their Employees," approved June eleventh, nineteen hundred and six. § 741. Recovery for Loss to Family. In an action for the death of a railroad brakeman under the Employers' Liability Act providing that the recovery shalHnure to the benefit of the deceased's family, an instruc- tion permitting a recovery for the loss sustained by decedent's children consisting of their loss of care, attention, instruction and training, from their father's death, was not erroneous.* § 742, Liability for Injuries within the Territories. That part of the Employers' Liability Act which makes common carriers by railroad within the territories of the United States liable for injuries to employees as therein stated, supersedes the common law in the territories with respect to such- liability, and any cause of action within its terms is necessarily one arising under the laws of the United States, and on that .ground within the jurisdiction of a Federal Court, where the requisite amount is involved.' 4 Duke V. St. Louis & S. F. R. Co. (1909), 172 Fed. Rep. 684. 5 Cound V. A. T. & S. F. Ry. Co. (1909), 173 Fed. Rep. 527. CHAPTER XLIV. SHERMAN ANTI-TRUST LAW. Section 743. The Commission is Without Authority to Administer the "Sher- man Anti-trust Law." 744. Suits to enforce the "Anti-trust Act" cognizable only by the Courts. 745. "Sherman Anti-trust Law" cannot be Resorted to, to Sustain a Proceeding to Enjoin Rebating. 746. Traffic Associations. § 743. The Commission is without Authority to Administer the "Sherman Anti-trust Law." The Commission has no authority to administer the "Anti- trust Law, ' ' or even to determine whether it has been violated. If an investigation discloses a violation of that law, the power of the Commission is not enlarged nor its duty changed in respect to the rate involved in the inquiry.^ The violation of the so-called anti-trust act by unwarranted agreements in restraint of trade by carriers of interstate commerce is not within the jurisdiction of the Commission but only the cor- rection of unreasonable rates which may be the purpose and effect of such illegal act.^ §744. Suits to Enforce the "Anti-trust Act" only cognizable by the Courts. Any action for the violation of the "Anti-trust Act" or a proceeding for the enforcement thereof is only cognizable by the Federal Courts.^ 1 T. P. Sprigg et al. v. B. & 0. Rd. Co. et al., 8 I. C. C. R. 443. 2 Warren Mfg. Co. et al. v. Southern Rwy Co. et al., 12 I. C. C. R. 381. 3 Central Yellow Pine Association v. Illinois Central Rd. Co. et al. (1905), 10 I. C. C. R. 505. Tift et al. v. Southern R. Co. et al., 10 T. C. C. R. 548 (1905). 999 §§ 745, 746] INTERSTATE TRANSPOETATION. 1000 §745. "Sherman Anti-trust Law" cannot be resorted to, to sustain a Proceeding to Enjoin Rebating. The Interstate Commerce Act and the Act known as the "Sherman Anti- trust Law"* are separate and independent Acts, not germane in character and purpose; and therefore jurisdiction in the Circuit Court of the United States over a bill in equity to enjoin a railroad company from granting re- bates to favored shippers cannot be maintained upon the ground that such act of the railroad company is a monopoly within the meaning of the second section of said Anti-trust Act."= § 746. Traffic Associations.' TIA. Agreement for Maintenance of Eates. A contract between competing railroads relating to traffic rates for the transportation of articles of commerce between the States, the direct effect of which is to produce a restraint of the Act of Congress of July 2, 1890,' declaring that every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the sev- eral States or with foreign nations, is illegal.' Competing and nonconnecting railroads are not authorized by the Act to Regulate Commerce to make an agreement of maintenance of rates and the curbing of competition.* All combinations in restraint of trade or commerce are prohibited by the Anti-trust Act, which Act was intended to cover common carriers by railroad.* The right of a railroad company to charge reasonable rates 4 Act, July 2, 1890, C. 647, 26 Stat. 209, Chap. 647 (U. S. Comp. St.' 1901, p. 3200). ■= U. S. V. A. T. & S. F. Ry. Co. (1905), 142 Fed. Rep. 176. 6 See important recommendations and comments of Interstate Com- merce Commission to Congress in its Twelfth Annual Report, 1898. 7 See note 4, supra. 8 United States v. Trans-Missouri Freight Association (1896), 166 U. S. 290, 17 Sup. Ct. Rep. 540, 41 L. ed. 1007, reversing 58 Fed. Rep. 58, 7 C. C. A. 15, and 53 Fed. Rep. 440. 1001 SHERMAN ANTI-TEUST LAW. |^§ 746 does not include the right to enter into a combination with competing roads to maintain reasonable rates. An agreement between railroad companies "for the pur- pose of mutual protection by establishing and maintaining reasonable rates, rules, and regulations on all freight traffic, both through and local" is by its necessary effect an agree- ment to restrain trade or commerce within the meaning of the Anti-trust Act, no matter what the intent was on the part of those who signed it. The Court said: What one company may do in the way of charging reasonable rates is radically different from entering into an agreement with other and competing roads to keep up the rates to that point. If there be any competition the extent of the charge for the service will be seriously affected by that fact. Competition will itself bring charges down to what may be reasonable, while in the case of an agreement to keep up prices competition is allowed no play; it is shut out, and the rate is practically fixed by the companies themselves by virtue of the agreement, so long as they abide by it.9 TfB. Agreements to Prevent Competition. An agreement between railroad companies which directly and effectually prevents competition is, under the statute,^" in restraint of trade, notwithstanding the possibility that a restraint of trade might also follow unrestricted competition; which might destroy weaker roads and give the survivor power to raise rates.'^^ The Court said that ordinary freedom of contract in the use and management of their property did not require the right to combine as one consolidated and powerful association for the purpose of stifling competition among themselves, and of thus keeping their rates and charges higher than they might otherwise be under the laws of competition. And this is so, even though the rates provided for in the agreement may for the time be not more than are reasonable. They may easily and at any time be increased. It is the combination of these large and powerful corporations, covering vast sections of territory and influencing trade throughout the whole extent thereof, and acting as one body in all matters over which the combination extends, that constitutes the alleged evil, and in regard to which, so far as the combination operates upon and restrains Interstate commerce. Congress has power to legislate and to pro- hibit." 9 U. S. V. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. ed. 1007. 10 See note 4, supra. 11 United States v. Joint-Traffic Association (1898), 171 U. S. 505, 19 Sup. Ct. Rep. 25, 43 L. ed. 259, reversing 76 Fed. Rep. 895. CHAPTER XLV. GOVERNMENT-AIDED RAILROAD AND TELEGRAPH COMPANIES. Section 747. Equal Facilities Required. Discrimination Forbidden. 748. Complaints to Interstate Commerce Commission. 749. Duty of Commission when Complaint is made. 750. How Order of Commission is Enforced. 751. Commission may Institute Inquiries on its Own Motion. 752. Penalties for Failure to Comply with Orders of Commission. 753. Action for Damages may be brought. 754. Railroad and Telegraph Lines subject to Act were Required to File Copies of their Contract. 755. Reports of Government-Aided Railroad and Telegraph Lines to the Commission. 756. Duty of Commission to Inform Attorney-General of Violations of Act. By the Act of Congress approved August seventh, eighteen hundred and eighty-eight, entitled "An Act supplementary to the Act of July first, eighteen hundred and sixty-two, entitled, 'An Act to aid in the construction of a railroad and telegraph lines from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes,' and also of the Act of July second, eighteen hundred and sixty-four, and other Acts amendatory of said first-named Act," certain powers and duties in relation to those lines were devolved upon the Com- mission as follows. § 747. Equal Facilities Required — Discrimination Forbidden. The second section of the Government-Aided Railroad Act^ provides that the railroad and telegraph companies referred to. in the first section thereof are required to allow such con- 1 Public No. 237, approved August 7, 1888. 1003 1003 GOVERNMENT- AIDED RAILROADS. [§§ 748-750 neetion to be made and to so operate their respective tele- graph lines as to afford equal facilities to all vrithout discrim- ination; and to receive, deliver and exchange business with connecting telegraph lines on equal terms, affording equal facilities v^ithout discrimination for or against any one of such connecting lines; and such exchange of business to be on terms just and reasonable. § 748. Complaints to Interstate Commerce Commission. The third section provides that if any railroad or telegraph company referred to in the first section, or company operating such railroad or telegraph line, shall refuse or fail, in whole or in part, to maintain and operate a telegraph line as re- quired by law, for the use of the Government or the public, for commercial and other purposes, without discrimination, or shall refuse or fail to make or continue such arrangements for the interchange of business with any connecting telegraph company, then complaint may be made to the Interstate Com- merce Commission, whose duty it shall be, under such rules and regulations as the Commission may prescribe, to ascer- tain the facts, and determine and order what arrangement is proper to be made in the particular case, the railroad or telegraph company concerned to abide by and perform such order. §749. Duty of Commission when Complaint is made. The statute makes it the duty of the Interstate Commerce Commission when such determination and orders are made to notify the parties concerned.^ § 750. How Order of Comanission is Enforced. The order of the Commission may, if necessary, be enforced by writ of mandamus in the Courts of the United States, in the name of the United States, at the relation of either of the Interstate Commerce Commissioners.^ 2 Section 3, Government- Aided Railroad Act. 3 See note 1, supra. §§ 751-754] INTERSTATE TKANSPOETATION. 1004 § 751. Commission may Institute Inquiries on its Own Motion. The statute empowers the Commissioners to institute any inquiry, upon their own motion, in the same manner and with the same effect as though complaint had been made.* § 752. Penalties for Failure to Comply witli Orders of Commission. The statute provides^ that any officer or agent of such Government-aided railroad or telegraph companies, or of any company operating the railroads and telegraph lines of said companies, who shall refuse to abide by, or peform and carry out within a reasonable time the order or orders of the Inter- state Commerce Commission, shall in every case of refusal or failure be guilty of a misdemeanor, and, on conviction thereof, shall in every such case be fined in a sum not. exceed- ing one thousand dollars, and may be imprisoned not less than six months. §753. Action for Damages may be brought. In every such case of refusal or failure as stated above, the party aggrieved may not only cause the officer or agent guilty thereof to be prosecuted as stated above, but may bring an action for damages sustained thereby against the company whose officer or agent may be guilty thereof, in the Circuit or District Court of the United States in any State or Territory in which any portion of the road or telegraph line of said company may be situated; and in case of suit, processes may be served upon any agent of the company found in such State or Territory, and such service shall be held by the Court good and sufficient." §754. Railroad and Telegraph Lines subject to Act were Required to Pile Copies of their Contract. The Government- Aided Railroad Act passed August 7, 1888, compelled each and every of the railroad and telegraph com- * See note 1, supra. 5 Section 5, Government-Aided Railroad Act. 6 Ibid. 1005 GOVBKNMENT-AIDED RAILROADS. [§ 755 panics subject to its provisions to file with the Interstate Com- merce Commission within sixty days after the passage of said Act, copies of all contracts and agreements of every descrip- tion existing between it and every other person or corpora- tion whatsoever in reference to the ownership, possession, maintenance, control, use, or operation of any telegraph lilies, for property over or upon its right of wayJ § 755. Reports of Government-Aided Railroad and Telegraph Lines to the Commission. 11 A. Duty of Carrier to File Annual Eeports. The statute makes it the duty of each and every one of the Government-aided railroad and telegraph companies to annually report to the Interstate Commerce Commission, with reasonable fulness and certainty, the nature, extent, value, and condition of the telegraph lines and property then be- longing to it, the gross earnings, and all expenses of mainte- nance, use, and operation thereof, and its relation and busi- ness with all connecting telegraph companies during the pre- ceding year.^ T[B. Special Ebport. The Government-Aided Eailroad Act which was passed August 7, 1888, ordered carriers subject to its provisions to file with the Interstate Commerce Commission, a report de- scribing with sufficient certainty, the telegraph lines and prop- erty belonging to it, and in the manner in which the same were being then used and operated by it, and the telegraph lilies and property upon its right of way in which any other person or corporations claimed to have a title or interest, and setting forth the grounds of such claim, and the manner in which the same were being then used and operated.' 7 Section 6, Government- Aided Railroad Act. 8 Ibid. 8 Ibid. § 756] INTEESTATB TEANSPOETATION. 1006 T[ C. CoMMissioBT Authorized to Presceibe System of Reports AND Time of Piling Same. The statute authorizes the Interstate Commerce Commission to prescribe a system of reports and the manner in which they shall be filed, also the time of filing the same.^" If D. Penalty for Eefusal to make Efforts to the Commission. The statute provides that if any such railroad or telegraph company shall refuse or fail to make such reports or any report as may be called for by the Commission, or refuse to submit its books or records for inspection, such neglect or refusal shall operate as a forfeiture, in each case of such neg- lect or refusal, of a sum not less than one thousand dollars nor more than five thousand dollars to be recovered by the Attorney-General of the United States, in the name and for the use and benefit of the United States.'^ § 756. Duty of Oommission to Inform Attorney-General of Violations of Act. The statute makes it the duty of the Interstate Commerce Commission to inform the Attorney-General of all such cases of neglect or refusal, whose duty it shall be to proceed at once to judicially enforce the forfeitures provided for above. ^^ 10 Section 6, Government-Aided Railroad Act. 11 Ibid. 12 Ibid. CHAPTER XLVI. PENALTIES AND FORFEITURES FOR VIOLATIONS OF THE LAW. Section 757. Penalty of Carrier for Issuing or Giving Free Transportation in Violation of the Statute. 758. Penalty of Person Using Free Transportation in Violation of the Statute. 759. Misdemeanor to Offer, Grant, Give, Solicit, Accept or Receive any Rebate from Published Rates or Other Concession or Discrimi- nation and Penalty therefor. 760. Penalties for Violation of Act by Carriers, or when the Carrier is a Corporation, its Officers, Agents, or Employes. 761. Carrier Corporation as well as OfBcer or Agent Liable to Convic- tion for Misdemeanor and Penalty therefor. 762. Act of Officer or Agent to be also Deemed Act of Carrier. 763. Forfeiture, in Addition to other Prescribed Penalty, of Three Times Amount of Money and Value of Consideration Illegally Received, shall be Paid to the United States. 764. Failure of Carrier to Publish Rates or Observe Tariffs a Misde- meanor and Penalty therefor. 765. Punishment by Forfeiture for Failure of Carriers to File Reports. 766. Punishment of Carrier by Forfeiture for Failure to Keep Accounts or Records as Prescribed by the Commission or Allow Inspection of Accounts or Records. 767. Punishment of Person for False Entry in Accounts or Records, or Mutilation of Accounts or Records, or for Keeping other Ac- counts than those Prescribed by the Commission. 768. Punishment of Special Examiner who Divulges Facts or Informa- tion without Authority. 769. Penalty of Person Neglecting or Refusing to Attend and Testify before the Commission. 770. Failure to Obey Order of Commission and Penalty therefor. 771. Penalty for Pooling of Freights and Division of Earnings. 772. Penalty of Carrier for Violation of Hours-of-Service Law. 773. Penalty for Violation of Safety-Appliance Act. 774. Penalty for Violation of Ash-Pan Act. 775. Penalties for Violations of the Transportation-of-Exploslves Act. 1007 §§ 757-759] INTERSTATE TKANSPOETATIOlf. 1008 § 757. Penalty of Carrier for Issuing or giving free Transportation in Violation of the Statute. The Act provides that any common carrier issuing or giv- ing interstate free transportation in violation of the provi- sions thereof, shall be deemed guilty of a misdemeanor and for each offense on conviction, shall pay to the United States a penalty of not less than one hundred nor more than two thousand dollars.^ § 758. Penalty of Person Using Free Transportation in Violation of the Statute. The Act states that any person who unlawfully uses any interstate free ticket, free pass, or free transportation, shall be subject to the same penalty as is the carrier issuing or givipg the same, i. e., shall pay to the United States a pen- alty of not less than one hundred nor more than two thousand dollars.^ "Where a common carrier issues an interstate free pass to an employee who delivers the pass to a person not authorized to receive or use it and the said party uses the same on an interstate journey he violates the Act to Regulate Commerce as amended June 29, 1906; and the employee delivering such pass is guilty of aiding and abetting in said violation.^ § 759. Misdemeanor to Offer, Grant, Give, Solicit, Accept or Receive any Rebate from Published Rates or ol^er Concession or Discrimination and Penalty therefor. The Elkins Act provides:* "It shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or discrimiii^ ation in respect to the transportation of any property in inter- state or foreign commerce by any common carrier subject to said Act to Regulate Commerce and the Acts amendatory thereof, whereby any such property shall by any device what- 1 Act to Regulate Commerce. Section 1. 2 Ibid. 3 United States v. Williams, 159 Fed. Rep. 310. * Elkins Act. Section 1. 1009 PENALTIES FOR VIOLATION OF LAW. [§ 760 ever, be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and the Acts amendatory thereof, or vrhereby any other advantage is given or discrim- ination is practiced. Every person or corporation whether carrier or shipper, who shall, knowingly, offer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars : Provided, That any person, or any officer, or director or any corporation subject to the provisions of this Act, or the Act to Regulate Commerce and the Acts amendatory there- of, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years or both such fine and imprisonment, in the discretion of the Court. "^ The above provision would apply to such devices or means as false billing, false classification, false weighing, or false report of weight, false representation of the contents of the package, etc. §760. Penalties for Violation of Act by Carriers, or when the Carrier is a Corporation, its Oflacers, Agents, or Employees. The Act to Regulate Commerce provides that any common carrier subject to its provisions, or whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or em- ployed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willfully suffer or permit to be done, any act, matter, or thing in the Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in the 5 Elkins Act Section 1. Regulation — 64. §§ 761, 762] INTERSTATE TRANSPOETATION. 1010 Act required to be done, or shall cause or willingly suffer, omit, or fail to do any act, matter, or thing, so directed or required by the Act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of the Act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any District Court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense : Provided, That if the offense for which any person shaU be convicted as aforesaid shall be an unlawful discrim- ination in rates, fares, or charges, for the transportation of passengers or property such person shall, in addition to the fine hereinbefore provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the Court.' § 761. Carrier Corporation, as well as Officer or Agent, liable to Conviction for Misdemeanor, and Penalty Therefor. The Blkins Act provides :' ' ' That anything done or omitted to be done by a corporation common carrier, subject to the Act to Regulate Commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person act- ing for or employed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penal- ties as are prescribed in said Acts or by this Act with refer- ence to such persons, except as such penalties are herein changed." § 762. Act of Officer or Agent to be also Deemed Act of Carrier. In construing and enforcing the above provisions of the e Act to Regulate Commerce, Section 10. 7 See note i, supra. 1011 PENALTIES FOE VIOLATION OE LAW. [§ 763 Elkins Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common car- rier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or shipper as well as that of the person.^ §763. Forfeiture, in addition to other Prescribed Penalty, of Three Times Amount of Money and Value of Consideration Illegally Received shall be paid to the United States. The Elkins Act provides that,^ "Any person, corporation, or company who shall deliver property for interstate transpor- tation to any common carrier, subject to the provisions of this Act, or for whom, as consignor or consignee, any such carrier shall transport property from one State, Territory, or the District of Columbia to any other State, Territory, or the District of Columbia, or foreign country, who shall know- ingly by employee, agent, officer or otherw;ise directly or in- directly, by or through any means or device whatsoever, re- ceive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transportation of such prop- erty, as fixed by the schedules of rates provided for in this Act, shall, in addition to any penalty provided for by this Act, forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court, * * * and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be." 8 See note 4, supra. 9 iDid. §§ 764, 765] ISTTEESTATE TEANSPOKTATION. 1012 § 764. Failure of Carrier to Publish Rates or Observe Tariffs a Misdemeanor and Penalty Therefor. The Elkins Act provides that the willful failure upon the part of any carrier subject to the Act to Regulate Commerce and Acts amendatory thereof, to file and publish the tariffs of rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof, the corpora- tion offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense.^" §765. Punishment by Forfeiture for Failure of Carriers to File Reports. H A. Annual and Monthly Eepoets. The statute provides, that, if any carrier, person, or cor- poration subject to its provisions shall fail to make and file its annual reports as prescribed in Section 20 of the Act within the time specified therein or within the time extended for making and filing the same, or shall fail to make specific answer to any question authorized by said section within thirty days from the time it is lawfully required so to do such party shall forfeit to the United States in the sura of one hundred dollars for each and every day it shall continue to be in default with respect thereto. '^'^ The above forfeiture also is imposed upon carriers who fail to file monthly reports of earning and expenses or special reports within a specified period, as may be required by the Commission. ^^ H B. Accident Reports. The Accident-Reports Act provides that any common car- rier failing to make its report within thirty days after the end of any month shall be deemed guilty of a misdemeanor and, upon conviction thereof, by a Court of competent juris- 10 See note 4, supra. 11 Act to Regulate Commerce. Section 20. 12 Ibid 1013 PENALTIES EOE VIOLATION OF LAW. [§§ 766, 767 diction, shall be punished by a fine of not more than one hun- dred dollars for each and every offense and for every day during vi^hich it shall fail to make such report after the time specified for making the same.^^ § 766. Punishment of Carrier by Forfeiture for Failure to Keep Accounts of Records as Prescribed by the Commission or Allow Inspection of Accounts or Records. The Act provides that in case of failure or refusal on the part of any carrier receiver, or trustee to keep such accounts, records, and memoranda on the book and in the manner pre- scribed by the Commission, or to submit such accounts, rec- ords, and memoranda as are kept to the inspection of the Com- mission or any of its authorized agents or examiners, such carrier, receiver, or trustee shall forfeit to the United States the sum of five hundred dollars for each offense and for each and every day of the continuance of such offense, such forfeitures to be recoverable in the same manner as other for- feitures provided for in the Act.^* § 767. Punishment of Person for False Entry in Accounts or Records, or Mutilation of Accounts or Records, or for Keeping other Accounts than those Prescribed by fhe Commission. The Act provides that any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device falsify, the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records or memor- anda of all facts and transactions appertaining to the car- rier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the Com-, mission, shall be deemed guilty of a misdemeanor and shall 13 Accident-Reports Act. Section 4. 14 See note 11, supra. §§ 768-770] INTERSTATE TRANSPOETATION. 1014 be subject, upon conviction in any Court of the United States of competent jurisdiction, to a fine of not less than one thou- sand dollars nor more than five thousand dollars, or imprison- ment for a term of not less than one year nor more than three years, or both such fine and imprisonment.^' § 768. Punishment of Special Examiner wlio Divulges Facts or Information without Authority. The statute provides that any examiner who divulges any fact or information which may come to his knowledge during the course of any examination, except in so far as he may be directed by the Commission or by a Court of the United States of competent jurisdiction, shall be subject to a fine of not more than five thousand dollars or imprisonment for a term not ex- ceeding two years, or both.^° § 769. Penalty of Person Neglecting or Refusing to Attend and Testify before the Commission. The statute provides that any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents if in his power to do so, in obedience to the subpoena or lawful requirement of the Commission shall be guilty of an offense and upon conviction thereof by a Court of .competent jurisdiction shall be punished by fine of not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment.^' § 770. Failure to Obey Order of Commission and Penalty therefor. The Act to Regulate Commerce provides, that, any carrier, any officer, representative, or agent of a carrier, or any re- ceiver, trustee, lessee, or agent of either of them, who know- ingly fails or neglects to obey any order made under the 15 See note 11, supra. 16 Ibid. 17 Immunity of Witnesses Act. 1015 PENALTIES FOE VIOLATION OF LAW. [§§ 771-773 provisions of Section 15 of the Act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense and in case of a continuing violation, each day shall be deemed a separate offense.^* The statute provides that the above forfeiture shall be pay- able into the Treasury of the . United States, and shall be recoverable in a civil suit in the name of the United States, brought in the district where the carrier has its principal operating office, or in any district through which the road of the carrier runs.^' § 771. Penalty for Pooling of Freights and Division of Earnings. Carriers entering into a pooling agreement are subject to the general forfeitures provided for in the statute, except that each day of the continuance of such agreement shall be deemed a separate offense.^" §772. Penalty of Carrier for Violation of Hours-of -Service Law. The Hours-of-Service Act provides that any common car- rier subject to the provisions thereof, or any officer or agent thereof, requiring or permitting any employee to go, be, or re- main on duty in violation of the second section thereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation.^^ § 773. Penalty for Violation of Safety-Appliance Act. The Safety-Appliance Act provides that any common car- rier using any locomotive engine, running any train, or haul- ing or permitting to be hauled or used on its line, any car in violation of any of the provisions of such Act, shall be liable to a penalty of one hundred dollars for each and every such violation.^^ 18 Act to Regulate Commerce. Section 16. 19 Ibid. 20 Act to Regulate Commerce. Section 5. 21 Hours-of-Servlce Act. Section 3. 22 Safety- Appliance Acts. Section 6. §§ 774, 775] INTERSTATE TRANSPORTATION. 1016 § 774. Penalty for Violation of Ash-Pan Act. The statute provides that any common carrier using any locomotive in interstate or foreign commerce, not equipped with an ash pan as provided therein shall be liable to a penalty of two hundred dollars for each and every such vio- lation.^^ §775. Penalties for Violations of the Transportation-of- Explosives Act. The statute provides that whoever shall knowingly violate, or cause to be violated any of the provisions of the Transpor- tation-of -Explosives Act, or any regulation made by the Inter- state Commerce Commission in pursuance thereof, shall be fined not more than two thousand dollars, or imprisoned not more than eighteen months, or both.^* The law further provides that when the death or bodily injury of any person is caused by the explosion of any article named in the Act, while the same is being placed upon any vessel or vehicle to be transported in , 'violation thereof, or while the same is being so transported, or while the same is being removed from any such vessal or vehicle, the person knowingly placing, or aiding or permitting the placing, of such articles upon any such vessel or vehicle, to be so trans- ported, shall be imprisoned not more than ten years. ^^ 23 Ash-Pan Act. Section 3 (approved May 30, 1908, Public No. 165). 24 Transportation of Explosives Act. Section 235. 25 Transportation of Explosives Act. Section 236. CHAPTER XL VII. PROCEDURE AND PRACTICE BEFORE THE INTERSTATE COMMERCE COMMISSION. Section 776. Nature of Complaints before the Commission I f °/Dial. I Informal. 777. Sessions of the Commission \ General. ) Special. 778. Commission may Prescribe Form of Procedure. 779. Seal of the Commission. 780. Commissioners may Administer Oaths and Affirmations. 781. Commissioners may Sign Subpoenas. 782. Number of Commissioners constituting a Quorum. 783. Persons Claiming to be Damaged may Elect whether to Complain to the Commission or Bring Suit in a United States Court. 784. Complaints to the Commission. 785. Appearance of Parties. 786. Persons interested in Matters involved in Cases before Commis- sion may be made Parties. 787. Attendance and Testimony of Witnesses and Production of Docu- mentary Evidence. 788. Rehearing. 789. Orders of Commission. 790. Limitation iipon Actions before the Commission. 791. Docket of the Commission. 792. Power of Commission to Inquire into Business of Carriers and keep itself Informed in regard thereto. 793. Commission Required to Execute and Enforce Provisions of the Act to Regulate Commerce. 794. Institution of Inquiries by the Commission of its Own Motion. 795. Commission as a Board of Arbitration. 796. Rules of Practice before the Commission in Cases and Proceed- ings under the Act to Regulate Commerce. It is not the purpose of the author to touch upon procedure before the Interstate Commerce Commission further than to give the specific provisions of the law relating thereto, which, together with the rules of practice before the Commission as promulgated by that body, will convey a general idea of the subject. Any detailed discussion of that subject would be beyond the scope and purpose of this work. 1017 § 776] INTERSTATE TEANSPOETATIOlir. 1018 § 776. Nature of Complaints before the Oommissionj^''™*^- T[A. Division of Complaints. The work of the Commission which pertains directly to regulation involves two distinct kinds of procedure: One based upon formal petitions filed with the Commission under Section 13 of the law, and involving regular hearing and in- vestigation, the preparation of a report settkig forth the ma- terial facts found and conclusions reached by the Commission, and issuance of an order dismissing the ease or directing the carrier or carriers complained against, to correct the rate or practice which may be held unlawful. The other kind of procedure arises in the performance by the Commission of its duty, under the twelfth section, to "execute and enforce the provisions of the Act," and relates to complaints presented by letter, the examination of tariffs on file in the ofS.ce in connection with such complaints, and correspondence with shippers and carriers concerning the same. Complaints of the latter class are called informal complaints to distinguish them from the formal petitions or complaints which constitute the basis of contested cases. 1[B. Formal Complaints. Formal proceedings, before the Commission are usually in- stituted after the shipper and carrier have failed to reach a settlement or upon facts developed in a preliminary inquiry by the Commission. The result is that these formal cases are generally stoutly contested, and in some of the more important several hearings, producing voluminous records of testimony and argument, are often required.^ It is probably near the truth to say that the cases before the Commission directly or indirectly affect almost every locality, and therefore nearly all of the people of the United States. Some of these proceedings involve very large inter- ests, others present issues of comparatively trifling importance to the general public, while a few are based upon matters relating to individual claims. The questions presented in such 1 Fifteenth Annual Report of I. C. C. (1901). 1019 PEOCEDtJEE AND PEACTICE BEFORE COMMISSION. [§ 776 cases relate to the unreasonableness of rates, discriminations in rates between persons, or as between commodities, discrim- ination between shippers in furnishing cars, undue preference of various descriptions of one person or locality over another person or locality, overcharges, unjust demurrage charges, pooling, and disregard of the law in the publication of tariffs. These general characterizations embrace a great variety of eases arising under differing conditions, each presenting new phases of the transportation problem growing out of facts peculiar to the situation of the complaining shipper or local- ity, and circumstances surrounding the traffic. Cases which in themselves present demands for slight re- lief often bring up important as well as novel questions of law and procedure, and the reported decisions in these cases are capable of citation as precedents in future proceedings. The complaints very frequently contain demands for dam- ages, and decisions rendered in favor of complainants in such cases often include an award of reparation. In this connec- tion it should be noted that Section 9 of the Act to Regulate Commerce requires the complaining shipper to elect whether he will bring his case for damages in consequence of an alleged violation of the statute in the Federal Courts or be- fore the Commission. It follows that when he elects to pur- sue his remedy in a proceeding before the Commission, alleg- ing violation of the law and claiming damages, he cannot thereafter bring suit for damages in a Court upon the same cause of action. In eases where wrongful discrimination or preference is claimed to exist, through an unjust relation of rates, com- plaints usually also allege the higher rate complained of to be unreasonable, and it often happens that the rates may appear unjustly related because the higher charge is unrea- sonable, indicating the proper method of securing a readjust- ment of the related rates to be an order forbidding the higher charge.^ T[ C. Informal Complaints. The formal hearings and investigations constitute only a 2 Eighteenth Annual Report of I. C. C. (1904). § 776] INTERSTATE TEANSPOKTATION. 1020 portion, and by no means the greater portion, of the admin- istrative work of the Commission. Informal hearings, con- ferences, correspondence with shippers and with carriers re- lating to numerous transportation questions constantly aris- ing and the adjustment of such questions without formal complaint necessarily require considerable time and careful attention. More differences between shippers and carriers, many of which arise from mistakes or misunderstanding, are disposed of or satisfactorily arranged through the inter- vention of the Commission than by formal complaint.^ The main object of this method of procedure is the speedy disposition, through settlements, readjustments plainly re- quired by the statute, or advice given by the Commission, of matters in which regulation is demanded, and thus to limit the number of contested cases upon the docket. It would be an injustice to complaining shippers and communities, amounting frequently to denial of relief, to compel the insti- tution of a regular proceeding every time cause of complaint is brought to the attention of the Commission; and the num- ber of cases requiring the hearing of witnesses, oral or writ- ten argument, and formulated decision would probably be greater than the Commission could dispose of properly or without intolerable delays. The great mass of complaints are handled and disposed of by the Commission by prelimin- ary investigation and correspondence or conference with car- riers and shippers.* The increased power vested in the Commission by the amendments to the Act of 1906, has naturally led to a multi- plication of the number of complaints presented by letter, and these complaints relate to every conceivable subject con- nected with the rates, methods, practices, and service of inter- state carriers. A fair conception of the work performed by the Commission in the field of regulation is not possible without reference to the results attained in respect to these cases in which formal complaint is not filed, nor proceedings of a formal nature 3 Third Annual Report of I. C. C. (1889). * See note 1, supra. 1031 PEOCEDUEE AND PEACTICB BEFOEE COMMISSION. [§ 776 pursued by the complainant. The public is not advised to the full extent of the work accomplished in securing, through correspondence, the voluntary adjustment by carriers of ques- tions in dispute relating to interstate transportation, nor is the public cognizant of the extre^ne importance and value of the results obtained. Through the medium of correspondence, is secured the settlement of many matters extremely vexa- tious to shippers. The questions thus amicably adjusted are not, however, alone questions affecting the interest of indi- viduals; on the contrary, the effect of the action taken by carriers in the adjustment of these complaints is often of wide spread interest and advantage to large communities, if not indeed of vital importance to considerable sections of country. Controversies arising out of the relations between the car- riers themselves are likewise in many instances, presented to the Commission for arbitration. The Commission is also called upon frequently by traf&c officials of carriers to indicate what is considered to be the proper and lawful course to be pur- sued in respect to the application of rates or regulations affecting transportation. Thus it will be seen that many great benefits result from the adjustment or settlement through correspondence of questions informally submitted for inves- tigation.^ An important service is thus performed by the Commis- sion to shippers throughout the country in the settlement of meritorious claims, involving comparatively small sums, where the claimants would not feel justified in devoting the time and incurring the expense incident to a formal hearing.^ The Commission in its last report to Congress stated:^ "This docket has grown from No. 1, on January 1, 1907 (the date on which the Commission's first reparation order was issued), to No. 8755, on December 1, 1909. "It might be weU to state that while cases coming forward on this docket are adjusted in an informal manner, this spe- cial docket is not an informal docket except in respect to the form of pleadings and the character of the hearing. The 5 Annual Reports of I. C. C. (21st, 1907; 22d, 1908). 8 Twenty-Second Annual Report of I. C. C. (1908). T Twenty- Third Annual Report of I. C. C. (1909). § 777] INTEESTATE TKANSPOETATION. 1032 Commission cannot on the special docket exceed the authority exercised by it on the formal docket, nor may it omit any requirement with respect to eases on the special docket that the law imposes on it in the disposition of cases on the formal docket. In all cases, whether on the formal or the informal docket, the law requires a complaint and answer and a full hearing, and provides that where damages are awarded the report of the Commission shall include the findings of fact on which the award is made. The Commission has endeavored to simplify the procedure on the special docket by accepting the application of the carrier as the equivalent of a complaint and answer, and by accepting as a sufficient compliance with the requirements of Section 15 for a full hearing its admis- sion that the rate charged under the circumstances then exist- ing was unreasonable. "It will therefore be observed that the Commission's action in special reparation cases springs from the same authority which it exercises in formal cases." §777. Sessions of the Commission jg^^g^^' TfA. General Sessions. The general sessions of the Commission for the hearing of complaints and for investigations of a general character re- lating to the business of common carriers and the manner and method in which the same is conducted, are usually held, pursuant to the Act, at the City of Washington, D. C.^ This has been found more conducive to the convenience of attendance from different parts of the country.^ The hearings of contested eases, including oral arguments are held at its officers in the American National Bank Build- ing, No. 1317 F Street, N. W., and the two weeks beginning with the first Monday in each month are set aside for that purpose.^" 1[ B. Special Sessions. The Act provides, that whenever the convenience of the 8 Act to Regulate Commerce. Section 19. 9 Third Annual Report of I. C. C. (1889). 10 Rule 1, Rules of Practice before the I. C. C. 1033 PKOCBDUKE AND PEACTICE BEFORE COMMISSION. [§ 778 public or tlie parties, may be promoted, or delay or expense prevented thereby, the Commission may hold sessions in any part of the United States. Or it may, by one or more of the Commissioners, prosecute any inquiry necessary to its duties in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier sub- ject to the provisions of the Act.^^ In pursuance of the above authority the Commission holds special sessions, and investigations are made at various places in different parts of the country whenever the subject of investigation is local, or convenience of parties and witnesses will be subserved or the Commission be likely to be better informed as to the peculiar facts of the case. In selecting points for investigations of this character the Commission is governed largely by the convenience of parties and witnesses but, as is often the case, witnesses and parties on one side or the other are required to travel considerable distances as it is rarely possible to locate hearings so that both sides to a controversy will be equally accommodated.^^ § 778. Commission may Prescribe Form of Procedure. The statute provides that the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.^^ The Act further provides that the Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulations of pro- ceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be to those in use in the Courts of the United States.^* In the exercise of this authority, the Commission has formu- lated and adopted a set of rules to govern the practice before it, as set forth in Section 796, post. The statute provides however, that every vote and official 11 See note 8, supra. 12 See note 9. supra. 13 Act to Regulate Commerce. Section 17. 14 Ibid. §§ 779-783] INTERSTATE TEANSPOKTATION. 1034 act of the Commission shall be entered of record, and that its proceedings shall be public upon the request of either party interested.^^ § 779. Seal of the Commission. The Commission is authorized by the Act to have an official seal and the Act further provides that this seal shall be judi- cially noticed. ^° §780. Commissioners may Administer Oaths and AfSrmations. Either of the members of the Commission is given authority by the Act to administer oaths or affirmations.^' § 781. Commissioners may Sign Subpoenas. Either of the members of the Commission is given authority by the Act to sign subpoenas. § 782. Number of Commissioners Constituting a Quorum. A majority of the Commission constitutes a quorum for the transaction of business, but no Commissioner is permitted to participate in any hearing or proceeding in which he has a pecuniary interest. '^^ § 783. Persons Claiming to be Damaged may Elect whether to Complain to the Commission or Bring Suit in a United States Court. The Act provides, that any person or persons claiming to be damaged by any common carrier subject to its provisions may either make complaint to the Commission or may bring suit in his or their own behalf for the recovery of the dam- ages for which such common carrier may be liable under the provisions of the Act, in any District or Circuit Court of the United States of competent jurisdiction, but such person or persons shall not have the right to pursue both of said reme- 15 Act to Regulate Commerce. Section 17. 18 Ibid. 17 Ibid. 18 Ibid. 1035 PEOCEDUKE AND PRACTICE BEFORE COMMISSION. [§ 784 dies, and must in each case elect which one of the two methods of procedure therein provided for he or they will adopt.^^ § 784. Complaints to the Commission. Tf A. How AND BY Whom made. The statute provides that any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society or any body politic or municipal organization complain- ing of anything done or omitted to be done by any common carrier subject to the provisions of the Act to Eegulate Com- merce in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts.^" TJ B. How Complaint Served upon Carriers. The statute provides that upon filing complaint with the Commission a statement of the charges thus made shall be forwarded by the Commission to the common carrier com- plained of, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission.^^ T[ C. Eeparation by Carriers before Investigation. The Act provides, that if the common carrier complained of shall, within the time specified by the Commission, make reparation for the injury alleged to have been done, such carrier shall be relieved of liability to th.e complainant only for the particular violation of the law thus complained of .^^ T[ D. Investigation of Complaints by Commission. The Act makes it the duty of the Commission upon failure of a carrier to satisfy a complaint within the time specified in the order of the Commission, or if there shall appear to be any reasonable ground for investigating such complaint, to 19 Act to Regulate Commerce. Section 9. 20 Act to Regulate Commerce. Section 13. 21 Ibid. 22 Ibid. Eegulation — 65. § 784] INTERSTATE TKANSPOETATION. 1026 investigate the matters complained of in such manner and by such means as it shall deem proper.^^ If E. Complaints Forwarded by State Eailroad Commissions. The Act makes it the duty of the Commission to investigate any complaint forwarded by the Railroad Commissioner or Railroad Commission of any State or Territory at the request of such Commissioner or Commission.^* ff F. Commission must make Report of Investigation. The Act provides that whenever an investigation shall be made by the Commission it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its decision, order, or re- quirement in the premises; and in case damages are awarded such report shall include findings of fact upon which the award is made.^^ U G. Reports op Investigations must be Entered of Record. All reports of investigations made by the Commission must be entered of record.^® If H. Service of Copies op Reports on Parties. A copy of the report of investigation made by the Com- mission must be furnished to the party who may have com- plained and to any common carrier that may have been com- plained of.^^ H I. Complainant need not be Directly Damaged. The Act provides, that no complaint shall at any time be dismissed because of the absence of direct damage to the com- plainant.^* 23 Act to Regulate Commerce. Section 13. 24 Ibid. 25 Act to Regulate Commerce. Section 14. 26 Act to Regulate Commerce. Section 19. 27 See note 25, supra. 28 See note 20, supra. 1027 PBOCEDUKE AND PRACTICE BEFORE COMMISSION. [§§785-787 §785. Appearance of Parties. The statute provides, that any party may appear before the Commission and be heard, in person or by attorney.^" § 786. Persons interested in Matters involved in Cases before Commission may be made Parties. The statute provides, that in any proceeding for the enforce- ment of the provision of the statutes, relating to interstate commerce instituted before the Interstate Commerce Com- mission, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and that inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same pro- visions as are or shall be authorized by law with respect to carriers.^" §787. Attendance and Testimony of Witnesses and Production of Documentary Evidence. If A. Power of Commission to Ebqdirb. The statute provides, that the Commission shall have power to require, by subpoena, the attendaiice and testimony of witnesses and the production of all books, papers, tariffs, agreements, and documents relating to any matter under in- vestigation.^^ Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing.^^ H B. Commission mat Invoke Aid oe Court. The Act provides, that in case of disobedience to a sub- poena the Commission, or any party to a proceeding before the Commission, may invoke the aid of any Court of the 2» See note 13^ supra. 30 Section 2. Elklns Act. 31 Act to Regulate Commerce. Section 12. 32 Ibid. § 787] INTERSTATE TKANSPOETATION. 1028 United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents as authorized.'* 1[ C. Penalty foe Disobedience to Order of the Court. The statute provides, that any of the Circuit Courts of the United States within the jurisdiction of which any inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the pro- visions of the Act, or other person, issue an order requiring such common carrier or other person to appear before the Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and that any failure to obey such order of the Court may be punished by such Court as a contempt thereof.'* T[ D. Testimony may be taken by Deposition. The testimony of any witness may be taken at the instance of a party in any proceeding or investigation pending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer.'^ T[ E. Commission may Order Testimony to be taken by Deposition. The Commission may order testimony to be taken by depo- sition in a proceeding or investigation pending before it, at any stage of such proceeding or investigation.'" ^ P. Before Whom Deposition may be taken. Deposition may be taken before any Judge of any Court of the United States or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice or judge of a supreme or superior court, mayor or chief magis- trate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not 33 Act to Regulate Commerce. Section 12. Si Ibid. S5 rbid. 36 Ibid. 1029 PROCEDURE AND PRACTICE BEFORE COMMISSION. [§ 787 being of counsel or attorney to either of the parties, or inter- ested in the event of the proceeding or investigation.^' ^ G. Reasonable ISTotice must be given. Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of taking his deposition.'* U H. Compulsory Testimony by Deposition. The statute provides, that any person may be compelled to appear and depose, and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission.'^ (See paragraph B, supra.) U I. Manner of taking Depositions. The Act provides, that every person deposing as provided above shall be cautioned and sworn {or affirm, if he so request) to testify the whole truth and be carefully examined.*" His testimony must be reduced to writing by the magis- trate taking the deposition, or under his direction, and after it has been reduced to writing, be subscribed by the depon- ent." T[ J. When Witness is in a Foreign Country. If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commis- sion, or agreed upon by the parties by stipulation in writing to be filed with the Commission.*^ 3' Act to Regulate Commerce. Section 12. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. § 787] INTEESTATB TSANSPOETATION. 1030 U K. Deposition must be Piled with Commission. The statute requires that all depositions be promptly filed with the Commission.*^ Tf L. Fees of Witnesses and Magistrates. The Act provides, that witnesses whose depositions are taken pursuant thereof, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the Courts of the United States." "Witnesses summoned before the Commission are entitled by the statute to be paid the same fees and mileage that are paid witnesses in the Courts of the United States.*^ H M. Claim that Testimony oe Evidence will tend to Ceiminate will not Excuse Witness. The statute provides, that no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Inter- state Commerce Commission or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any al- leged violation of the Act to Regulate Commerce or of any amendments thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture.*" , ^ ISr. Immunity to Testifying Witnesses. The statute provides, that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he 43 Act to Regulate Commerce. Section 12. "4 Ibid. *5 Act to Regulate Commerce. Section 18. *8 Immunity of Witnesses Act; see also Section 12, Act to Regulate Commerce. 1031 PEOCEDUKE AND PRACTICE BEFORE COMMISSION. [§ 788 may testify or produce evidence, documentary or otherwise, before the Commission, or in obedience to its subpoena nor the subpoena of either of them, or in any such case or proceeding : Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testi- fying." The immunity granted above extepds only to a natural per- son who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath.*' 11 0. Penalty eoe Keglect or Eefusal to Attend and Testify. See Section 769, ante. § 788. Rehearing. 11 A. Commission may Grant Eehearing. The Act provides, that after a decision, order, or require- ment has been made by the Commission in any proceeding any party thereto may at any time make application for a rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor is made to appear.*' The Act further provides, that applications for rehearing shall be governed by such general rules as the Commission may establish.'" If B. Application for Eehearing shall not Operate as Stay OF Proceedings, unless so Ordered by Commission. The statute provides, that no application for rehearing shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission.'^ 47 Immunity of Witnesses Act. 48 Act Defining tlie Riglit of Immunity of Witnesses, etc. 49 Act to Regulate Commerce. Section 16-A. 50 Ibid. 51 Ibid. § 789] INTERSTATE TEANSPOETATION. 1033 The statute farther provides, that in case a rehearing is granted the proceeding thereupon shall conform as near as may be to the proceedings in an original hearing, except as the Commission may otherwise direct."^ If C. The Commission mat on Reheaeing, Eeveese, Change OE Modify Oedee. The statute provides, that if, in its judgment, after rehear- ing and consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or un- warranted, the Commission may reverse, change, or modify the same accordingly.^* Any decision, order, or requirement made after rehearing, reversing, changing, or modifying the original determination is subject to the same provisions as an original order.^* § 789. Orders of CommSssion. If A. When Effective. The Act provides, that all orders of the Commission except orders for the payment of money shall take effect within such reasonable time, not less than thirty days.^' TfB. Oedees shall Continue in Poece not exceeding Two Years. The Act provides that all orders of the Commission shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a Court of competent jurisdiction. ^° Under the above provision an order relating to rates is not invalid because it fails to prescribe the time it shall remain 52 Act to Regulate Commerce. Section 16-A. 53 Ibid. 51 Ibid. 55 Act to Regulate Commerce. Section 15. 56 Ibid. 1033 PROCEDURE AND PRACTICE BEFORE COMMISSION. [§ 790 in force, but in such case the order remains in force for two years, the maximum time prescribed by the statute." TIC. Service op Order op Commission by Mailing. The statute provides that every order of the Commission shall be forthwith served by mailing to anyone of the princi- pal officers or agents of the carrier at his usual place of busi- ness a copy thereof; and that the registry mail receipt shall be prima facie evidence of the receipt of such order by the carrier in due course of mail.^* 1[D. Commission mat Suspend or Modify Order. The statute authorizes the Commission to suspend or modify its orders upon such notice and in such manner as it shall deem proper.^'' U E. Carriers must Comply with Order op Commission. The Act makes it the duty of every common carrier, its agents and employees to observe and comply with the orders of the Commission so long as they shall remain in effect."" If P. Punishment by Forfeiture for Eepusal to Obey Order OP Commission. See Section 110, ante. § 790. Limitation upon Actions before the Commission. T[ A. Claims must be Filed within Two Years. All complaints for the recovery of damages must be filed with the Commission within two years from the time the cause of action accrues."^ Claims filed with the Commission since August 28, 1907, must have accrued within two years prior to the date when they are filed, otherwise they are barred by the statute."" 57 N. Y. C. & H. R. R. R. Co. v. I. C. C. (1909), 168 Fed. Rep. 131. 58 Act to Regulate Commerce. Section 16. 6» Ibid. 60 Ibid, ei Ibid. 62 Rule 10, Con. Rul. Bui. No. 4 (Dec. 2, 1907). § 791] INTEESTATE TEANSPOETATION. 1034 Claims filed on or before August 28, 1907, are not affected by the two years limitation in the Act.°^ TI B. AccEUED Claims at Passage of Act. The Hepburn Amendment of June 29, 1906, provided that claims which accrued prior to the passage of that Act must be presented within one year.°* §791. Docket of the Commission. If A. PoEMAL Complaints. The Commission maintains a docket of the formal com- plaints heard by it which is similar to that kept by Courts of law except that there are no entries of costs. This con- tains a record of the style of the ease, the names of com- plainant and defendant, the date of filing the complaint or petition, and all subsequent pleadings such as the answer, reply, demurrer, amendments, etc., hearings, arguments, tran- scripts of testimony, exhibits, stenographic notes if any, briefs, subpoenas issued, the report or finding of the Commission, the order or award, and all other minutes of proceedings. This docket also contains a full record of the investigations of the Commission which have been instituted of its* own motion and ex parte applications. Such cases are styled "In Ee" or "In the Matter of." The cases are entered serially, complaints filed up to the amendment of June 29, 1906, being number 879 and less ; those eases filed subsequent to such amendment being higher than that number. On July 2, 1909, the Commission adopted a rule providing 83 Ibid. 61 Act to Regulate Commerce, Section 16. Tlie Interstate Commerce Act as amended June 29, 1906, was approved by the President on that date. By joint resolution of Congress approved on June 30, 1906, it was provided that the Act should not take effect until 60 days after its ap- proval by the President. Held, That the Act became effective on June 29, 1906, and that the resolution was therefore powerless to postpone the operation of the statute. (U. S. v. Standard Oil Co., 148 Fed. Rep. 719.) 103^ PEOOEDUEE AND PEACTICE BEFOEE COMMISSION. [§§ 792, 793 for the consolidation under one docket number of all cases involving substantially the same subject matter.^^ HB. Infoemal Complaints. The docket of informal complaints contains all of the steps taken in the proceeding, including the adjustment effected or vfhatever disposition was made of the matter. This also con- tains a record of all correspondence had on the subject. Like the formal complaint docket the complaints are entered nu- merically. The first number under the amendment of June 29, 1906, was 3727. § 792. Power of Commission to Inquire into Business of Carriers and keep itself Informed in Regard thereto. The statute provides, that the Commission shall have au- thority to inquire into the management of the business of all common carriers subject to the provisions thereof, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information neces- sary to enable the Commission to perform the duties and carry out the objects for which it was created."" § 793. Commission Required to Execute and Enforce the Provisions of the Act to Regulate Commerce. The Act authorizes and requires the Commission to execute and enforce the provisions of the Act, and provides, that "upon request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commis- sion shall apply to institute in the proper Court and to prose- cute under the direction of the Attorney-Greneral of the United States all necessary proceedings for the enforcement of the provisions of the Act and for the punishment of all violations thereof and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the Courts of the United States.""^ 65 See note 7, supra. 06 See note 31, supra. <" Ibid. §§ 794, 795] INTEESTATE TKANSPOKTATION. . 1036 § 794. Institution of Inquiries by the Oommission of its own Motion. The Act authorizes the Commission to institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made.^* It may, by one or more of the Commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of the Act."' § 795. Commission as a Board of Arbitration. In its Annual Report to Congress for the year 1904,'"' the Commission stated: "In two instances^^ during the past year the Commission has been asked by both shippers and carriers to adjudicate controversies between them concerning the ad- justment of rates. In each case the questions involved were of manifest importance as affecting the business of competi- tive communities and the traffic of railway lines by which they were served. These questions had been the subject of prolonged contention between the parties and of unavailing efforts to harmonize by direct negotiation the conflicting in- terests of carriers and communities whose officers and repre- sentatives finally joined in invoking the friendly offices of the Commission. "While the Commission is not in express terms authorized to act as a board of arbitration in matters referred to it by consent of the parties concerned, the subject of controversy and the issues involved in both these requests presented such a state . of facts as would have justifie_d a proceeding upon formal complaint or of inquiry upon our own motion, and 68 See note 20. supra. 69 See note 26, supra. 70 Eighteenth Annual Report of I. C. C. (1904), page 23. 71 See proceedings entitled "In the Matter of Differential Freight Rates to and from North Atlantic Ports," decided April 27, 1905, 11 I. C. C. R. 13, and "In the Matter of Freight Rates between Memphis and points In Arkansas," decided August 15, 1905, 11 I. C. C. R. 180. 1037 PROCEDURE AND PRACTICE BEEORE COMMISSION. [§ 796 were thus clearly within the spirit of the statute which defines the functions of the Commission. Believing this view to be correct as it has proven to be unquestioned, the Commission accepted the responsibilities which it was thus asked to as- sume. The proceedings in form are strictly in accordance with the provisions of the Act although the voluntary sub- mission by the adverse parties gives them in fact the nature of an arbitration." § 796. Rules of Practice before the Commission in Cases and Proceedings under the Act to Regulate Commerce. EULE I. PUBLIC SESSIONS. The general sessions of the Commission for hearing con- tested cases, including oral argument, will be held at its office in the American Bank Building, No. 1317 F. Street, N. "W., Washington, D. C, and the two weeks beginning with the first Monday in each month are set aside for that purpose. Special sessions may be held at other places as ordered by the Commission. EULE II. PARTIES TO CASES. Any person, firm, company, corporation, or association, mer- cantile, agricultural, or manufacturing society, body politic or municipal organization, or any common carrier, or the railroad commissioner or commission of any State or Terri- tory, may complain to the Commission by petition, of any- thing done, or omitted to be done, in violation of the provisions of the Act to Eegulate Commerce by any cordmon carrier or carriers or other parties subject to the provisions of said Act. "Where a complaint relates to the rates, regulations, or practice of a single carrier, no other carrier need be made a party, but if it relates to matters in which two or more car- riers, engaged in transportation by continuous carriage or shipment, are interested, the several carriers participating in such carriage or shipment are proper parties defendant. Where a complaint relates to rates, regulations, or practices § 796] INTEESTATB TRANSPOBTATION. 1038 of carriers operating different lines, and the object of the pro- ceeding is to secure correction of such rates, regulations or practices on each of said lines, all the carriers operating such lines must be made defendants. When the line of a carrier is operated by a receiver or trustee, both the carrier and its receiver or trustee should be made defendants in cases involving transportation over such line. Persons or carriers not parties may petition in any pro- ceeding for leave to intervene and be heard therein. Such petition shall set forth the petitioner's interest in the pro- ceeding. Leave granted on such application shall entitle the intervenor to appear and be treated as a party to the pro- ceeding, but no person not a carrier who intervenes in behalf of the defense shall have the right to file an answer or other- wise become a party, except to have notice of and appear at the taking of testimony, produce and cross examine witnesses, and be heard, in person or by counsel, ■ on the argument of the case. EULE III. COMPLAINTS. Complaints must be by petition setting forth briefly the facts claimed to constitute a violation of the law. The name of the carrier or carriers complained against must be stated in full, and the address of the petitioner, with the name and address of his attorney or counsel, if any, must appear upon the petition. The petition need not be verified. The com- plainant must furnish as many copies of the petition as there may be parties complained against to be served and three additional copies for the use of the Commission. The Commission will cause a copy of the petition, with notice to satisfy or answer the same within a specified time, to be served personally or by mail, in its discretion, upon each defendant. Complaints which involve the same or substantially the same principle, subject, or state of facts, even though two or more rates or regulations are alleged to be unreasonable or discrim- 1039 PEOOEDUEE AND PEACTICE BEFOEE COMMISSION. [§ 796 inatory and numerous shipments are affected thereby, should be included in one complaint, in which the several rates, regu- lations, discriminations, and shipments are set out in items, exhibits, or paragraphs. Two or more complainants may join in one complaint against one or more carriers, and one com- plainant's complaints against two or more carriers may be included in one complaint, when the subject of complaint, the principle involved, or the state of facts is substantially the same. In other words, two or more complaints should not be filed when one complaint can be made fairly to cover the subject, the principle, or the faets.'^ If one complainant or two or more complainants file sepa- rate complaints which rest upon the same principle or upon the same or a substantially similar state of facts, the Com- mission will, in its discretion, consolidate the several com- plaints into one case, under one number and title, so that the same may be disposed of in one hearing and in one report.'^ Reparation will not ordinarily be awarded in a formal case attacking a rate as unreasonable or otherwise in violation of law unless the intent to claim reparation is specifically dis- closed therein, or in an amendment thereto, filed before the submission o* said ease. The Commission may, however, in the exercise of its discretion, upon good cause shown, and under unusual circumstances, deal specially with a particular claim for reparation.'* Claim for reparation based upon a decision of the Com- mission filed by complainants not parties to the case in which such decision was rendered will not ordinarily be allowed unless reparation was claimed in the complaint upon which such decision of the Commission was based, or was awarded by the Commission. The Commission may, however, in the exercise of its discretion, upon good cause shown, and under unusual circumstances, specially consider a particular claim for reparation of this class.'^ 72 Rule 206, Con. Rul. Bui. No. 4 (July 2, 1909). 73 Ibid. 74 Ibid. 75 Ibid. § 796] INTERSTATE TEANSPORTATION. 1040 Complaints for reparation must disclose as nearly as pos- sible all the claims of complainant or complainants covered by or involved in the complaint, except that when a general rate adjustment or a rate under which many shipments have been made to many destinations, or from many points of origin by many shippers, is involved, complaint may contain specific prayer for reparation on all shipments, and the prov- ing up as to shipments and amounts of reparation due thereon be left until the question of the reasonableness of the rate or rates and whether or not reparation should be awarded, have been decided. And each claimant for reparation under a decision that has been rendered must include all his ship- ments and claims in one complaint or statement^' EULB IV. ANSWERS. A defendant must answer within twenty days from the date of the notice above provided for, .but the Commission may, in a particular case, require the answer to be filed with- in a shorter time. The time prescribed in any case may be extended, upon good cause shown by the Commission. The original answer must be filed with the secretary of the Com- mission at its office in Washington and a copy thereof at the same time served by the defendant personally or by mail up- on the complainant who must forthwith notify the secretary of its receipt. The answer must specifically admit or deny the material allegations of the petition and also set forth the facts which will be relied upon to support any such denial. If a defendant shall make satisfaction before answering, a written acknowledgment thereof, showing the character and extent of the satisfaction given, must be filed by the complain- ant, and in that case the fact and manner of satisfaction, without other matter, may be set forth in the answer. If sat- isfaction be made after the filing and service of an answer, such written acknowledgment must also be filed by the complainant, and a supplemental answer setting forth the 76 Rule 206, Con. Rul. Bui. No. 4 (July 2, 1909). 10-il PEOCEDUEE AND PRACTICE BEFORE COMMISSION. [§796 fact and manner of satisfaction must be filed by the defend- ant. EULE V. NOTICE IN NATUEE OF DEMTIEEEB. A defendant who deems the petition insufficient to show a breach of legal duty may, instead of answering or formally demurring, serve on the complainant notice of hearing on the petition; and in such case the facts stated in the petition will be deemed admitted. A copy of the notice must at the same time be filed with the secretary of the Commission. The filing of an answer, however, will not be deemed an admission of the sufficiency of the petition, but a motion to dismiss for insufficiency may be made at the hearing. EtTLE VI. SERVICE OP PAPERS. Copies of notices or other papers must be served upon the adverse party or parties, personally or by mail, and when any party has appeared by attorney service upon such attorney shall be deemed proper service upon the party. EULE VII. AMENDMENTS. Upon application of any party, amendments to any petition or answer, in any proceeding or investigation, may be allowed by the Commission, in its discretion. EULE VIII. ADJOUENMENTS AND EXTENSIONS OF TIME. Adjournments and extensions of time may be granted upon the application of any party, in the discretion of the Com- mission. EtJLE IX. STIPULATIONS. The parties to any proceeding or investigation before the Commission may, by stipulation in writing filed with the sec- retary, agree upon the facts, or any portion thereof, involved in the controversy, which stipulation shall be regarded and Eegulation — 6 6 . § 796] INTERSTATE TEANSPOETATION. 1042 used as evidence on the hearing. It is desired that the facts be thus agreed upon whenever practicable. EULE X. HEABINGS. Upon issue being joined by the service of an answer or notice of hearing on the petition the Commission will assign a time and place for hearing the case, which will be at its office in Washington, unless otherwise ordered. Witnesses will be examined orally before the Commission, unless their testimony be taken or the facts be agreed upon as provided for in these rules. The complainant must in all cases estab- lish the facts alleged to constitute a violation of the law, unless the defendant admits the same or fails to answer the petition. The defendant must also prove facts alleged in the answer, unless admitted by the petitioner and fully disclose its defense at the hearing. In case of failure to answer, the Commission will take such proof of the facts as may be deemed proper and reasonable, and make such order thereon as the circumstances of the case appear to require. Cases may be heard by one or more members of the Com- mission, or by a special agent or examiner, as ordered by the Commission. When testimony is directed to be taken by a special agent or examiner, such officer shall have power to administer oaths, examine witnesses, and receive evidence, and shall make report thereof to the Commission. All cases shall be orally argued in Washington, D. C, or sub- mitted upon briefs, unless otherwise ordered by the Com- mission. Rule XI. DEPOSITIONS. The testimony of any witness may be taken by deposition, at the instance of a party, in any case before the Commission, and at any time after the same is at issue. The Commission may also order testimony to be taken by deposition, in any proceeding or investigation pending before it, at any stage of 1043 PEOCEDUEE AND PRACTICE BEFORE COMMISSION. [§ 796 such proceeding or investigatioB. Such depositions may be taken be"f ore any authorized special agent or examiner of the Commission, judge of any court of the United States, or any commissioner of a circuit or any clerk of a district or circuit court, or any chancellor, justice, or judge of a su- preme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of coipmon pleas of any of the United States, or any notary puljlic, not being of counsel or attorney to either of the parties or otherwise interested in the proceeding or investigation. Reasonable notice must be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, which notice shall state the name of the witnesss and the time and place of the taking of his deposition, and a copy of such notice shall be filed with the secretary of the Com- mission. When testimony is to be taken on behalf of a common car- rier in any proceeding instituted by the Commission on its own motion, reasonable notice thereof in writing must be given by such carrier to the secretary of the Commission. Every person whose deposition is taken shall be cautioned and sworn {or may affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing, which may be typewriting, by the magistrate taking the deposition, or under his direction, and shaU, after it has been reduced to writing, be subscribed by the witness. If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commis- sion, or agreed upon by the parties by stipulation in writing to be filed with the secretary. All depositions must be promptly filed with the secretary. EULE XII. WITNESSES AND SUBPOENAS. Subpoenas requiring the attendance of witnesses from any place in the United States to any designated place of hear- § 796] INTBESTATE TEANSPOETATION. 1044 ing, for the purpose of taking the testimony of such witnesses oi'ally before one or more members of the Commission, or an authorized special agent or examiner of the Commission, or by deposition, will, upon the application of either party or upon the order of the Commission directing the taking of such testimony, be issued by any member of the Commission. Subpoenas for the production of books, papers, or documents (unless directed to issue hy the Commission upon its own motion) will only be issued upon application in writing; and when it is sought to compel witnesses, not parties to the proceeding, to produce such documentary evidence, the application must be sworn to and must specify, as nearly as may be, the books, papers, or documents desired ; that the same are in the posses- sion of the witness or under his -control; and also, by facts stated, show that they contain material evidence necessary to the applicant. Applications to compel a party to the pro- ceeding to produce books, papers, or documents need only set forth in a general way the books, papers, or documents desired to be produced, and that the applicant believes they will be of service in the determination of the case. Witnesses whose testimony is taken orally or by deposition, and the magistrate or other officer taking such deposition, are severally entitled to the same fees as are paid for like services in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken.'^ EULE XIII. DOCUMENTABT EVIDENCE. "Where relevant and material matter offered in evidence is embraced in a report, tariff, rate sheet, classification, book, pamphlet, written or printed statement, or document of any kind containing other matter not material or relevant and not intended to be put in evidence, such report, etc., in whole, shall not be received or allowed to be filed in a cause on 77 Fees of witnesses are fixed by law at $1.50 for each day's attend- ance at the place of hearing or of taking deposition, and 5 cents per mile for going to said place from his place of residence and 5 cents per mile for returning therefrom. 1045 PEOCEDUEE AKD PEACTICE BEEOEE COMMISSION. [§ 796 hearing before this Commission or at any time during the pendency thereof, but counsel or other party offering the same shall also present in convenient and proper form for filing a copy of such material and relevant matter, and that only shall be received and allowed to be filed as evidence and made part of the record in such cause; provided, however, that, if practicable, such matter may be read and taken down by the reporter and thus made part of the record. KULE XIV. BBIEFS. 78 Unless otherwise specially ordered, printed briefs shall be filed on behalf of the parties in each case. The brief for complainant and the brief or briefs for the defendants, or intervenors, shall contain an abstract of the evidence relied upon by the parties filing the same, and in such abstract reference shall be made to the pages of the record wherein the evidence appears. The abstract of evidence should follow the statement of the case and precede the argument. Briefs shall be printed in 12-point type on antique-finished paper, 5% inches wide by 9 inches long, with suitable margins, double-leaded text and single-leaded citations. At the close of the taking of testimony in each case the Commissioner or examiner before whom such testimony is taken shall fix the specific dates on or before which the briefs of the respective parties must be filed with the Commission and served on the adverse parties. The dates so fixel, unless otherwise ordered at said time, shall allow to the respective parties the following periods of time within which to file with the Commission and serve their respective briefs on the ad- verse parties, to wit: To the complainant, thirty days from the date of the conclusion of the testimony ; to the defendants and interveners, fifteen days after the specific date fixed for the complainant; and to complainant for reply brief, ten days after the date fixed for defendant or interveners. If the briefs of the respective parties are not filed and served on 78 As amended by Rule 149, Conference Ruling Bulletin No. 4 (Feb- ruary 9, 1909). § 79.6] INTERSTATE TRANSPORTATION. 1046 the date fixed for each, the ease will stand submitted without briefs on the date that defendants' or interveners' briefs are due. Briefs of parties not filed as aforesaid, and served on the respective parties on or before the specific dates fixed therefor, will not be received or considered by the Commis- sion. All briefs shall be filed with the secretary and shall be accompanied by notice showing service upon the adverse par- ties, and 15 copies of each brief shall be filed for the use of the Commission. The parties will be required to comply strictly with this rule, and, except for good cause shown, no extension of time will be allowed. Application for extension of time in which to file brief shall be by petition in writing, stating the facts on which the application rests, which must be filed with the Commission at least five days before the time for filing such briefs has expired. Application for oral argument may be made by any party at the close of the taking of the testimony or at any time of the filing of his brief. Such application can be granted only by the Commission. EULE XV. EEHEAEINGS. Applications for reopening a case after final submission, or for rehearing after decision made by the Commission, must be by petition, and must state specifically the grounds upon which the application is based. If such application be to reopen the case for further evidence the nature and purpose of such evidence must be briefly stated and the same must not be merely cumulative. If the application be for a rehear- ing, the petition must specify the findings of fact and con- clusions of law claimed to be erroneous, with a brief state- ment of the grounds of error; and when any decision, order, or requirement of the Commission is sought to be reversed, changed, or modified on account of facts and circumstances arising subsequent to the hearing, or of consequences result- ing from compliance with such decision, order, or require- 1047 PROCEDUEE AND PRACTICE BEFORE COMMISSION. [§ 796 ment which are claimed to justify a reconsideration of the case, the matters relied upon by the applicant must be fully set forth. EULE XVI. PRINTING OF PLEADINGS, ETC. Pleadings, depositions, and other papers of importance shall be printed or in typewriting, and when not printed only one side of the paper shall be used. EULB XVII. COPIES OF PAPERS OE TESTIMONY. Copies of any report, decision, order, or requirement of the Commission will be furnished without charge upon ap- plication to the secretary by any person or carrier party to the proceeding. One copy of the testimony will be furnished by the Com- mission for the use of the complainant and one copy for the use of the defendant, without charge; and when two or more complainants or defendants have appeared at the hearing, such complainants or defendants must designate to whom the copy for their use shall be delivered. EULE XVIII. COMPLIANCE WITH ORDERS. Upon the issuance of an order against any defendant or defendants, after hearing, investigation, and report by the Commission, such defendant or defendants must promptly notify the secretary of the Commission, upon the date /when such order becomes effective, as to whether such defendant or defendants has complied or not with the provisions of said order; and when a change in rates is required, such notice must be given in addition to the filing of a schedule or tariff showing such change in rates. EULE XIX. APPLICATION BY CARRIERS UNDER PROVISO CLAUSE OF FOITBTH SECTION. Any common carrier may apply to the Commission, under the proviso clause of the fourth section, for authority to § 796] INTERSTATE TEANSPOETATION. 1048 charge for the transportation of like kind of property less for a longer than for a shorter distance over the same line, in the same direction, the shorter being included within the longer distance. Such application shall be by petition, which shall specify the places and traffic involved, the rates charged on such traffic for the shorter and longer distances, the car- riers other than the petition which may be interested in the traffic, the character of the hardship claimed to exist, and the extent of the relief sought by the petitioner. Upon the filing of such a petition, the Commission will take such action as the circumstances of the case seem to require. EULE XX. INrOEMATION TO PAETIES. The secretary of the Commission will, upon request, advise any party as to the form of petition, answer, or other paper necessary to be filed in any case, and furnish such informa- tion from the files of the Commission as will conduce to a proper presentation of facts material to the controversy. EULE XXI. ADDEESS OF THE COMMISSION. ■All complaints concerning anything done or omitted to be done by any common carrier, and all petitions or answers in any proceeding, or applications in relation thereto, and all letters and telegrams for the Commission, must be addressed to Washington, D. C, unless otherwise specially directed. FORMS. ISTo. 1. — Complaint against a Single Caeeiee. No. 3. — ^Complaint against Two oe Moee Caeeiees. 'No. 3. — Answer. No. 4. — Notice by Caeeiee undee Rule V. No. 5. — Subpoena. No. 6. — Notice op Taking Depositions under Rule XII. These forms may he used in cases to which they are applicable, with such alterations as the circumstances may render necessary. 1049 PKOCEDTJEE AND PRACTICE BEEOKE COMMISSION. [§ 796 No. 1. COMPLAINT AGAINST A SINGLE CARRIER. INTERSTATE COMMEECE COMMISSION. A. B. against The .... Railroad Company. The petition of the above-named complainant respectfully shows: I. That Ihere let complainant state his occv/pation and place of busi- ness'] . II. That the defendant above named is a common carrier engaged in the transportation of passengers and property by railroad between points in the State of and points in the State of , and as such common carrier is subject to the provisions of the Act to Regulate Commerce, approved February 4, 1887, and acts amendatory thereof or supplementary tnereto. III. That \_here state concisely the matters intended to be complained of. Continue numbering each succeeding paragraph as in Nos. I, II and III.] Wherefore the petitioner prays that the defendant may be required to answer the charges herein, and that after due hearing and investi- gation an order be made commanding the defendant to cease and desist from said violations of the Act to Regulate Commerce, and for such order and further order as the Commission may deem necessary in the premises. IThe prayer' may be varied so as to ask also for the ascertainment of lawful rates or practices and an order requiring the car- rier to conform thereto. If reparation for any ivrong or injury he desired, the petitioner should state the nature and extent of the reparation he deems proper.'] Dated at , ,19... A. B. ^Complainant's signature.] No. 2. COMPLAINT AGAINST TWO OR MORE CARRIERS. INTEESTATE COMMEECE COMMISSION. A. B. against The Railroad Company, and . The Railroad Company. The petition of the above-named complainant respectfully shows: I. IThat here let complainant state his occupation and place of busi- ness.] II. That the defendants above named are common carriers engaged in the transportation of passengers and property by continuous car- riage or shipment, wholly by railroad [or partly by railroad and partly by water, as the case may be], between points in the State of and points in the State of , and as such common carriers are subject to the provisions of the Act to Regulate Commerce, approved February 4, 1887, and acts amendatory thereof or supplementary thereto. [Then proceed as in Form I.] § 796] INTEIiSTATE TEANSPORTATION. 1050 No. 3. ANSWER. INTEBSTATE COMMERCE COMMISSION. A. B. against The Railroad Company. The above-named defendant, for answer to the complaint in this proceeding, respectfully states: I. That Ihere follow the usual admissions, denials and averments. Continue numbering ea,ch succeeding paragrapW]. Wherefore the defendant prays that the complainant in this pro- ceeding is dismissed. The Railroad Company, By E. F. [.Title of officer.'] No. 4. NOTICE BY CARRIER UNDER RULE V. INTEBSTATE COMMEBCE COMMISSION. A. B. 1 against \ The Railroad Company. J Notice is hereby given under Rule V of the Rules of Practice in proceedings given before the Commission that a hearing is desired in this proceeding upon the facts as stated in the complaint. The Railroad Company, By E. F. [.Title of officer.] No. 5. SUBPOENA. To , You are hereby required to appear before .... in the matter of a complaint of against . . . . , as a witness on the part of on the .... day of 19.., at .... o'clock ... m., at , and bring with you then and there Dated [Seal.] Commissioner. Attorney for (Notice. — Witness fees for attendance under this subpoena are to be paid by the party at whose instance the witness is summoned, and every copy of this summons for the witness must contain a copy of this notice.) 1051 PEOCEDURB AND PRACTICE BEFORE COMMISSION. [§ 796 No. 6. NOTICE OF TAKING DEPOSITIONS UNDER RULE XII. INTERSTATE COMMEBCE COMMISSION. A. B. against The Railroad Company. You are hereby notified that G. H. will be examined before C. D., a .... ititle of officer or magistratel, at , on the day of , 19. ., at .... o'clock in the .... noon, as a witness for the above-named complainant lor defendant, as the case may 6e], according to Act of Congress in such case made and provided, and the Rules of Practice of the Interstate Commerce Commission, at which time and place you are notified to be present and take part in the examination of the said witness. Dated 19... I. J. ^Signature of complainant or defendant, or of counsel.'] To A. B., the above-named complainant, [_or The .... Railroad Com- pany, the above-named defendant; or to K. L., counsel for the above-named complainant or defendant]. CHAPTER XLVIII. Appendix 1. Appendix 2. Appendix 3. Appendix 4. Appendix 5. Appendix 6. Appendix 7. Appendix 8. Appendix 9. Appendix 10 Appendix 11 Appendix 12 Appendix 13 Appendix 14 Appendix 15 Appendix 16 Appendix 17 Appendix 18 Appendix 19 Appendix 20 Appendix 21 Appendix 22. Appendix 23. Appendix 24. Appendix 25. Appendix 26. Appendix 27. APPENDICES. PAGE Act to Regulate Commerce as Originally Enacted. 1053 Amendment March 2, 1889 1066 Amendment February 10, 1891 1077 Amendment February 8, 1895 1079 Hepburn Amendment June 29, 1906 1080 Amendment April 13, 1908 1099 Amendment February 25, 1909 1100 Act to Regulate Commerce as Amended to Date.. 1100 Immunity of Witnesses Acts 1127 Elkins Act as Originally Enacted 1129 Elkins Act as Amended to Date 1132 Expediting Act 1136 Government- Aided Railroad Act 1137 Safety Appliance Acts 1141 Block Signal Resolution 1145 Interlocking Act 1146 Accident Reports Act 1147 Coal and Oil Resolutions 1147 Arbitration Act 1150 Medal of Honor Act 1157 Regulations Governing the Award of Life-Saving Medals under the Medal of Honor Act 1158 Lake Erie and Ohio River Ship Canal Act 1159 Hours of Service Act 1160 Ash Pan Act 1162 Transportation of Explosives Act, March 4, 1909 . . 1163 District of Columbia Street Railways Act 1165 Act prescribing form of accounting for corpora- tion engaged in manufacture of Gas or Electricity in District of Columbia 1166 1053 APPENDICES. 1053 APPENDIX 1. Act to Regulate Commerce as Originally Enacted. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this Act shall apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, man- agement, or arrangement, for a continuous carriage or ship- ment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the trans- portation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however. That the provi- sions of this Act shall not apply to the transportation of pas- sengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory, as aforesaid. The term "railroad" as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation oper- ating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "transportation" shall in- clude all instrumentalities of shipment or carriage. All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such ser- vice is prohibited and declared to be unlawful. See. 2. That if any common carrier subject to the provi- sions of this Act, shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, col- lect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the 1054 INTERSTATE TEANSPOETATION. provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transporta- tion of a like kind of traffic under substantially similar cir- cumstances and conditions, such common carriers shall be deemed guilty of unjust discrimination, which is hereby pro- hibited and declared to be unlawful. Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this Act to make or give any un- due or unreasonable preference or advantage to any particu- lar person, company, firm, corporation, or locality, or any par- ticular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect what- soever. Every common carrier subject to the provisions of this Act shall, according to their respective powers, afford all reason- able, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forward- ing and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. Sec. 4. That it shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under subsantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge and receive as great compensation for a shorter as for a longer distance : Provided, however, That upon application to the Commission appointed under the provisions of this Act, such common carrier may, in special cases, after investigation by the Commission, be author- ized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this Act. Sec. 5. That it shall be unlawful for any common carrier APPENDICES. 1055 subject to the provisions of this Act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of any agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. Sec. 6. That every common carrier subject to the provi- sions of this Act shall print and keep for public inspection schedules showing the rates and fares and charges for the trans- portation of passengers and property which any such common carrier has established and which are in force at the time upon its railroad, as defined by the first section of this Act. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force upon such railroad, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, of at least the size of ordinary pica, and copies for the use of the public shall be kept in every depot or station upon any such railroad, in such places and in such form that they can be conveniently inspected. Any common carrier subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep for public inspection, at every depot where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment ; and any freight shipped from the United States through a foreign country into the United States, the through rate on which shall not have been made public as required by this Act, shall, be- fore it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production ; and any law in conflict with this section is hereby repealed. No advance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plain- 1056 INTERSTATE TEANSPOETATION. ly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly in- dicated upon the schedules in force at the time and kept for public inspection. Reductions in such published rates, fares, or charges may be made without previous public notice; but whenever any such reduction is made, notice of the same shall immediately be publicly posted and the changes made shall immediately be made public by printing new schedules, or shall immedately be plainly indicated upon the schedules at the time in force and kept for public inspection. And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any service in connection therewith, than is specified in such published schedule of rates, fares, and charges as may, at the time, be in force. Every common carrier subject to the provisions of this Act shall file with the Commission hereinafter provided for copies of its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said Commission of all changes made in the same. Every such common carrier shall also file with said Commission copies of all contracts, agree- ments, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers oper- ating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said Commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said Commission, in so far as may, in the judgment of the Commission, be deemed practicable; and said Commission shall, from time to time, prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published; but no common APPENDICES. 1057 carrier, party to any such joint tariil, shall be liable for the failure of any other common carrier, party thereto, to observe and adhere to the rates, fares, or charges thus made and pub- lished. If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by any Circuit Court of the United States in the judicial district wherein the principal office of said common carrier is situ- ated or wherein such offense may be committed, and if such common carrier be a foreign corporation, in the judicial cir- cuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with the aforesaid provisions of this section; and such writ shall issue in the name of the people of the United States, at the rela- tion of the Commissioners appointed under the provisions of this Act; and failure to comply with its requirements shall be punishable as and for a contempt; and the said Commis- sioners, as complainants, may also apply, in any such Circuit Court of the United States, for a writ of injunction against such common carrier, to restrain such common carrier from receiving or transporting property among the several States and Territories of the United States, or between the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several States and Terri- tories of the United States, as mentioned in the first section of this Act, until such common carrier shall have complied with the aforesaid provisions of this section of this Act. Sec. 7. That it shall be unlawful for any common carrier subject to the provisions of this Act, to enter into any com- bination, contract, or agreement, expressed or implied, to pre- vent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the plac^e of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous car- riage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any in- tent to avoid or unnecessarily interrupt such continuous car- riage or to evade any of the provisions of this Act. Sec. 8. That in case any common carrier subject to the Eegulation — 6 7. 1058 INTEKSTATB TEANSPOKTATION. provisions of this Act shall do, cause to be done, or permit to be done any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common car- rier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the Court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs' in the case. Sec. 9. That any persons or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint, to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any Dis- trict or Circuit Court of the United Sta,tes of competent juris- diction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for, he or they will adopt. In any such action brought for the recovery of damages the Court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such cor- poration or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Sec. 10. That any common carrier subject to this provision of this Act, or whenever such common carrier is a corpora- tion, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such cor- poration, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willfully suffer or permit to be done, any act, matter or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter or thing in this Act required to be done, or shall cause or willfully suffer or permit any act, matter or thing so directed or required by this Act to be done, not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act, or shall aid or APPENDICES. 1059 abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any District Court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense. Sec. 11. That a Commission is hereby created and estab- lished to be known as the Inter-State Commerce Commission, which shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and con- sent of the Senate. The Commission first appointed under this Act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, anno Domini eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the Commissioner whom he . shall succeed. Any Commissioner may be removed by the ,. President for inefficiency, neglect of duty, or malfeasance in, office. Not more than three of the Commissioners shall be, appointed from the same political party. No person in the employ of or holding any official relation to any common car- rier subject to the provisions of this Act, or owning stock or bonds thereof, or who is in any manner peculiarly interested; therein, shall enter upon the duties of or hold such office. Said Commissioner shall not engage in any other business, vo- cation or employment. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission. Sec. 12. That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers, subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to ob- tain from such common carriers full and complete informa- tion necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and for the purposes of this Act the Commission shall have power to require the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents, relating to any matter under investigaton, and to that end may invoke the aid of any Court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents, under- the provisions of this section. 1060 INTERSTATE TEANSPOETATION. And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this Act, or other persons, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the Court may be punished by such Court as a contempt there- of. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any crim- inal proceeding. Sec. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of anything done or omitted to be done by any common carrier subject to the provisions of this Act in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a rea- sonable time, to be specified by the Commission. If such com- mon carrier, with the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. Said Commission shall in like manner investigate any com- plaint forwarded by the railroad commissioner or railroad commission of any State or Territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. Sec. 14. That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of APPENDICES. 1061 fact upon which the conclusions of the Commission are based, together with its recommendation as to what reparaton, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial proceedings, be deemed. prima facie evidence as to each and every fact found. All reports of investigation made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common car- rier that may have been complained of. Sec. 15. That if in any case in which an investigation shall be made by said Commission it shall be made to appear to the satisfaction of the Commission, either by the testimony of witnesses or other evidence, that anything, has been done or omitted to be done in violation of the provisions of this Act, or of any law cognizable by said Commission, by any common carrier, or that any injury or damage has been sus- tained by the party or parties complainant, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission to forthwith cause a copy of its report in respect thereto to be delivered to such common car- rier, together with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reason- able time, to be specified by the Commission; and if, within the time specified, it shall be made to appear to the Commis- sion that such common carrier has ceased from such viola- tion of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complain- ing, a statement to that efEect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particu- lar violation of law. Sec. 16. That whenever any common carrier, as defined in and subject to the provisions Of this Act, shall violate or re- fuse or neglect to obey any lawful order or requirement of the Commission in this Act named, it shall be the duty of the Commission, and lawful for any company or person in- terested in such order or requirement, to apply, in a summary way, by petition, to the Circuit Court of the United States sitting in equity in the judicial district in which the common carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or disobedience, as the case 1062 INTERSTATE TEANSPOKTATION. may be ; and the said Court shall have power to hear and de- termine the matter, on such short notice to the common car- rier complained of as the Court shall deem reasonable; and such notice may be served on such common carrier, his or its officers, agents, or servants, in such manner as the Court shall direct; and said Court shall proceed to hear and determine the matter speedily as a Court of equity, and without th« formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises; and to this end such Court shall have power, if it think fit, to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the Court may think need- ful to enable it to form a just judgment in the matter, of such petition; and on such hearing the report of said Commission shall be prima facie evidence of the matters therein stated; and if it be ms/de to appear to such Court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall be lawful for such Court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further con- tinuing such violation or disobedience of such order or re- quirement of said Commission, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such Court to issue writs of attachment, or any other process of said Court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction or other proper process, mandatory or otherwise; and said Court may, if it shall think fit, make an order directing such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or -otherwise, to pay such sum of money not exceeding for each carrier person in default the sum of five hundred dollars for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, manda- tory or otherwise; and such moneys shall be payable as the Court shall direct, either to the party complaining, or into Court to abide the ultimate decision of the Court, or into the Treasury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment APPENDICES. 1063 or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in per- sonam in such Court. When the subject in dispute shall be to the value of two thousand dollars or more, either party to such proceeding before said Court may appeal to the Su- preme Court of the United States, under the same regulations now provided by the law in respect of security for such ap- peal; but such appeal shall not operate to stay or supersede the order of the Court or the execution of any writ or pro- cess thereon ; and such Court may, in every such matter, order the payment of such costs and counsel fees as shall be deemed reasonable. Whenever any such petition shall be filed or pre- sented by the Commission it shall be the duty of the district attorney, under the direction of the Attorney-General of the United States, to prosecute the same; and the costs and ex- penses of such prosecution shall be paid out of the appropri- ation for the expenses of the Courts of the United States. For the purpose of this Act, excepting its penal provisions, the Circuit Courts of the United States shall be deemed to be always in session. Section 17. That the Commission may conduct its proceed- ings in such manner as will best conduce to the proper dis- patch of business and to the ends of justice. A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any hear- ing or proceeding in which he has any pecuniary interest. Said Commission may, from) time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the Courts 'of the United States. Any party may appear before said Commission and be heard, in person or by attorney. Every vote and official act of the Com- mission shall be entered of record, and its proceedings shall be public upon the request of either party interested. Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commission may ad- minister oaths and affirmations. Sec. 18. That each Commissioner shall receive an annual salary of seven thousand five hundred dollars, payable in the same manner as the salaries of judges of the Courts of the United States. The Commission shall appoint a secretary, who shall receive an annual salary of three thousand five hundred dollars, payable in like manner. The Commission shall have authority to employ and fix the compensation of such other 1064 INTEESTATE TEAN8P0ETATI0K. employees as it may find necessary to the proper performance of its duties, subject to the approval of the Secretary of the Interior. The Commission shall be furnished by the Secretary of the Interior with suitable offices and all necessary office supplies. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the Courts of the United States. All of the expenses of the Commission, including all nec- essary expenses for transportation incurred by the Commis- sioners, or by their employees under their orders, in making any investigation in any other places than in the city of Wash- ington, shall be allowed and paid, on the presentation of item- ized vouchers therefor, approved by the chairman of the Com- mission and the Secretary of the Interior. Sec. 19. That the principal office of the Commission shall be in the city of Washington, where its general sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby, the Commission may hold special sessions in any part of the United States. It may, by one or more' of the Com- missioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this Act. Sec. 20. That the Commission is hereby authorized to re- quire annual reports from all common carriers subject to the provisions of this Act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the Commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the carrier's property,' franchises, and equipment; the number of employees and the salaries paid each class ; the amounts expended for improve- ments each year, how expended, and the character of such im- provements ; the earnings and receipts from each branch of business and from all sources; the operating and other ex- penses ; the balances of profit and loss ; and a complete ex- hibit of the financial operations of the carrier each year, in- cluding an annual balance-sheet. Such reports shall also con- tain such information in relation to rates or regulations con- APPENDICES. 1065 eerning fares or freights, or agreements, arrangements, or contracts with other common carriers, as the Commission may require ; and the said Commission may, within its discretion, for the purpose of enabling it the better to carry out the pur- poses of this Act, prescribe (if in the opinion of the Commis- sion it is practicable to prescribe such uniformity and methods of keeping accounts) a period of time within which all com- mon carriers subject to the provisions of this Act shall hav^, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept. Sec. 21. That the Commission shall, on or before the first day of December in each year, make' a report to the Secretary of the Interior, which shall be by him transmitted to Congress, and copies of which shall be distributed as are the other re- ports issued from the Interior Department. This report shall contain such information and data collected by the Commis- sion as may be considered of value in the determinaton of questions connected with the regulation of commerce, together with such recommendations as to additional legislation relat- ing thereto as the Commission may deem necessary. See. 22. That nothing in this Act shall apply to the car- riage, storage, or hauling of property free or at reduced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the issuance of mileage, excursion, or commutation passenger tickets; nothing in this Act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion ; nothing in this Act shall be con- strued to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees ; and nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies : Provided, That no pending litigation shall m any way be affected by this Act. Sec. 23. That the sum of one hundred thousand dollars is hereby appropriated for the use and purposes of this Act for the fiscal year ending June thirtieth, Anno Domini eighteen hundred and eighty-eight, and the intervening time anterior thereto. » .i,- Sec. 24. That the provisions of Sections 11 and 18 o± this Act, relating to the appointment and organization of the Commission herein provided for, shall take effect immediately, 1066 INTERSTATE TRANSPORTATION. and the remaining provisions of this Act shall take effect sixty days after its passage. (24 Statutes at Large, 379 ; I Supp. to Rev. Stat. U. S., 529, C. 104 approved February 4, 1887, and in effect April 5, 1887.) APPENDIX 2. Amendment of March 2, 1889. Sec. 1. That Section 6 of an Act entitled "An Act to regu- late commerce," approved February fourth, eighteen hundred and eighty-seven, be, and it is hereby, amended so .as to read as follows : "Sec. 6. That every common carrier subject to the provi- sions of this Act, shall print and keep open to public inspec- tion, schedules showing the rates and fares and charges for the transportation of passengers and property which any common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be car- ried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or deter- mine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier where passengers or freight, respec- tively, are received for transportation, -in such form that they shall be accessible to the public and can be conveniently inspected. "Any common carrier subject to the provisions of this Act, receiving freight in the United States to be carried through a foreign country to any place in the United States, shall also, in like manner, print and keep open to public inspection, at every depot or office where such freight is received for ship- ment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment ; and any freight shipped from the United States, through a foreign country into the United States, the through rate on which shall not have been made public as required by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if APPENDICES. 1067 said freight were of foreign production; and any law in con- flict with this section is hereby repealed. "No advance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect ; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Reductions in such published rates, fares, or charges shall only be made after three days' previous pub- lic notice, to be given in the same manner that notice of an advance in rates must be given. "And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation, for the transportation of passengers or property, or for any services in connection therewith, thajQ is specified in such published schedule of rates, fares, and charges as may at the time be in force. "Every common carrier subject to the provisions of this Act, shall file with the Commission hereinafter provided for, copies of its schedules of rates, fares, and charges which have been established and published in compliance with the require- ments of this section, and shall promptly notify said Com- mission of all changes made in the same. Every such common carrier shall also file with said Commission, copies of all con- tracts, agreements, or arrangements with other common car- riers in relation to any traffic affected by the provisions of this Act to which it may be a party. And in cases where pas- sengers and freight pass over continuous lines or routes oper- ated by more than one common carrier, and the several com- mon carriers operating such lines or routes establish joint tariffs or rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said Commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said Commission, in so far as miay, in the judgment of the Com- mission, be deemed practicable; and said Commission shall, from time to time, prescribe the measure of publicity which 1068 INTEKSTATB TRANSPORTATION. shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carrier to publish, and the places in which they shall be pub- lished. "No advance shall be made in joint rates, fares, and charges, shown upon joint tariffs, except after ten days' notice to the Commission, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect. No reduc- tion shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the Commission as is above provided in the case of an advance of joint rates. The Commission may make public such proposed advances, or such reductions, in such manner as may, in its judgment, be deemed practicable, and may prescribe from time to time, the measure of publicity which common carriers shall give to advances or reductions in joint tariffs. "It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transi- portation of persons or property, or for any services in con- nection therewith, between any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the Commission in force at the time. "The Commission may determine and prescribe the form in which the schedules, required by this section to be kept open to public inspection, shall be prepared and arranged, and may change the form from time to time as shall be found expedient. "If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by^ any Circuit Court of the United States in the judicial district wherein the principal office of said common carrier is situated, or wherein such offense may be committed, and if such com- mon carrier be a foreign corporation, in the judicial circuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with the afore- said provisions of this section; and such writ shall issue in the name of the people of the United States, at the relation of the Commissioners appointed under the provisions of this Act; and the failure to comply with its requirements shall be punishable as and for a contempt ; and the said Commissioners, APPENDICES. 1069 as complainants, may also apply, in any such Circuit Court of the United States, for a writ of injunction against such com- mon carrier, to restrain such common carrier from receiving or transporting property among the several States and Terri- tories of the United States, or between the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several States and Territories of the United States, as mentioned in the first section of this Act, until such common carrier shall have complied with the afore- said provisions of this section of this Act." Sec. 2. That Section 10 of said Act is hereby amended so as to read as follows : "Sec. 10. That any common carrier subject to the provi- sions of this Act, or, whenever such common carrier is a cor- poration, any director or officer thereof, or any receiver, trus- tee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other corporation, com- pany, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this Act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this Act to be done, not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act, or shall aid or abet therein, shall be deemed guilty of a misde- meanor, and shall, upon conviction thereof in any District Court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense : Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges, for the transportation of passengers or property, such person shall, in addition to the fine hereinbefore pro- vided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and impris- onment, in the discretion of the Court. "Any common carrier subject to the provisions of this Act, or, whenever such common carrier is a corporation, any officer or' agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classifi- cation, false weighing, or false report of weight, or by any other 'device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to 1070 INTERSTATE TEANSPOKTATION. obtain transportation for property at less than the regular rates then established and in force on the line of transporta- tion of such common carrier, shall be deemed guilty of a mis- demeanor, and shall, upon conviction thereof in any Court of the United States of competent jurisdicton within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the Court, for each offense. "Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this Act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and willfully, by false billing, false classification, false weighing, false repre- sentation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is here- by declared to be a misdemeanor, and shall, upon conviction thereof in any Court of the United States of competent juris- tion within the district in which such offense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the Court. "If any such person, or any officer or agent of any such corporation or company, shall, by payment of mjoney or other thing of value, solicitation, or otherwise, induce any common carrier subject to the provisions of this Act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the trans- portation of property, or shall aid or abet aoiy common car- rier in any such unjust discrimination, such person, or such officer or agent of such corporation or company, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any Court of the United States of competent juris- diction within the district in which such offense was com- mitted, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the pentitentiary for a term of not exceeding two years, or both, in the discretion of the Court, for each offense ; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly APPENDICES. 1071 or severally, in an action on the ease to be brought by any consignor or consignee discriminated against in any Court of the United States of competent jurisdiction for all damages caused by or resulting therefrom." See. 3. That Section 12 of said Act is hereby amended so as to read as follows : "See. 12. That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete informa- tion necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply, to institute in the proper Court and to prosecute, under the direction of the Attorney-General of the United States, all necessary proceedings for the enforcment of the provisions of this Act, and for the punishment of all violations thereof; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the Courts of the United States ; and for the purposes of this Act the Com- mission shall have power to require, by subpoenas, the attend- ance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation, and in case of disobedience to a subpoena, the Commission, or any party to a proceeding before the Commission, may invoke the aid of any Court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. "And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and pro- duce books and papers if so ordered) and give evidence touch- ing the matter in question ; and any failure to obey such order of the Court may be punished by such Court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not 1072 INTEESTATE TKANSPOETATION. excus« such witness from testifying; but such evidence or tes- timony shall not be used against such person on the trial of any criminal proceeding." Sec. 4. That Section 14 of said Act is hereby amended so as to read as follows : "See- 14. That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, together with its recommendation as to what repara- tion, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial pro- ceedings, be deemed prima facie evidence as to each and every fact found. "All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be fur- nished to the party who may have complained, and to any common carrier that may have been complained of. "The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such author- ized publications shall be competent evidence of the reports and decisions of the Commission therein contained, in all Courts of the United States, and of the several States, with- out any further proof or authentication thereof. The Com- misson may also cause to be printed for early distribution its annual report." See. 5. That Section 16 of said Act is hereby amended so as to read as follows : "Sec. 16. That whenever any common carrier, as defined in and subject to the provisions of this Act, shall violate, or refuse or neglect to obey or perform any lawful order or requirement of the Commission created by this Act, not founded upon a controversy requiring a trial by jury, as pro- vided by the seventh amendment to the Constitution of the United States, it shall be lawful for the Commission or for any company or person interested in such order or require- ment, to apply in a summary way, by petition, to the Circuit Court of the United States sitting in equity in the judicial district in which the common carrier complained' of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such viola- tion or disobedience, as the case may be; and the said Court shall have power to hear and determine the matter, on such APPENDICES. 1073 short notice to the eommon carrier complained of, as the Court shall deem reasonable ; and such notice may be served on such common carrier, his or her officers, agenits, or servants, in such manner as the Court shall direct; and said Court shall proceed to hear and determine the matter speedily as a Court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises; and to this end such Court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the Court may think needful to enable it to form a just judgment in the matter of such petition; and on such hearing the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated; and if it be made to appear to such Court, on such hearing or on report of any such persons or persons, that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall be lawful for such Court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation or disobedience of such order or requirement of said Commission, and enjoining obedience to the same ; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or other- wise, it shall be lawful for such Court to issue writs of attach- ment, or any other process of said Court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, and if a corpora- tion, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction, or other proper process, mandatory or otherwise ; and said Court may, if it shall think fit, make an order directing such com- mon' carrier or other person so disobeying such writ of injunc- tion or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of five hundred dollars for every day, after a day to be named in the order, that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such moneys shall be payable as the Court shall direct, either to the party com- plaining or into Court, to abide the ultimate decision of the Court, or into the Treasury; and payment thereof may, with- out prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of Eegulation — 68. 1074 INTERSTATE TEANSPORTATION. execution, in like manner as if the same had been recovered by a final decree in personam in such Court. When the sub- ject in dispute shall be of the value of two thousand doUars or more, either party to such proceeding before said Court, may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal; but the appeal shall not operate to stay or supersede the order of the Court or the execution of any writ or process thereon ; and such Court may, in every such matter, order the payment of such costs and counsel fees as shall.be deemed reasonable. Whenever any such petition shall be filed or presented by the Commission it shall be the duty of the district attorney, under the direction of the Attorney-General of the United States, to prosecute the same; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the Courts of the United States. "If the matters involved in any such order or requirementi of said Commission are founded upon a controversy requiring a trial by jury, as provided by the Seventh Amendment to the Constitution of the United States, and any such common carrier shall violate or refuse or neglect to obey- or perform the same, after notice given by said Commission as provided in the fifteenth section of this Act, it shall be lawful for any company or person interested in such order or requirement to apply in a summary way by petition to the Circuit Court of the United States sitting as a Court of law in the judicial district in which the carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or dis- obedience as the case may be; and said Court shall, by its order, then fix a time and place for the trial of said cause, which shall not be less than twenty nor more than forty days from the time said order is made, and it shall be the duty of the marshal of the district in which said proceeding is pending to forthwith serve a copy of said petition, and of said order, upon each of the defendants, and it shall be the duty of the defendants to file their answers to said petition within ten days after the service of the same upon them as aforesaid. At the trial (of) the findings of fact of said Com- mission as set forth in its report shall be prima facie evidence of the matters therein stated, and if either party shall demand a jury or shall omit to waive a jury the Court shall, by its order, direct the marshal forthwith to summon a jury to try the cause ; but if all the parties shall waive a jury in writing. APPENDICES. 1075 then the Court shall try the issues in said cause and render its judgment thereon. If the subject in dispute shall be of the value of two thousand dollars or more, either party may appeal to the Supreme Court of the United States under the same regulations now provided by law in respect to security for such appeal ; but such appeal must be taken within twenty days from the day of the rendition of the judgment in said Circuit Court. If the judgment of the Circuit Court shall be in favor of the party comiplaining, he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fixed by the Court, which shall be collected as part of the costs in the case. For the purposes of this Act, excepting its penal provisions, the Circuit Courts of the United States shall be deemed to be always in session." Sec. 6. That Section 17 of said Act is hereby amended so as to read as follows: "Sec. 17. That the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any"hearing or proceeding in which he has any pecuniary interest. Said Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the Courts of the United States. Any party may appear before said Commission and be heard, in person or by attorney. Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commis- sion may administer oaths and affirmations and sign sub- poenas." Sec. 7. That Section 18 of said Act is hereby amended so as to read as follows : "Sec. 18. That each Commissioner shall receive an annual salary of seven thousand five hundred dollars, payable in the same manner as the Judges of the Courts of the United States. The Commission shall appoint a secretary, who shall receive an annual salary of three thousand five hundred dollars, pay- able in like manner. The Commission shall have authority to employ and fix the compensation of such other employe.es as it may find necessary to the proper performance of its 1076 INTEKSTATB TEANSPOETATION. duties. Until otherwise provided by law, the Commission may- hire suitable offices for its use, and shall have authority to procure all necessary office supplies. Witnesses summoned before the Commission shall be paid the same fees and mile- age that are paid witnesses in the Courts of the United States. "All of the expenses of the Commission, including all nec- essary expenses for transportation incurred by the Commis- sioners or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor, approved by the chairman of the Commission." Sec. 8. That Section 21 of said Act is hereby amended so as to read as follows : "Sec. 21. That the Commission shall, on or before the first day of December in each year, make a report, which shall be transmitted to Congress, and copies of which shall be distri- buted as are the other reports transmitted to Congress. This report shall contain such information and data collected by the Commission as may be considered of value in the deter- mination of questions connected with the regulation of com- merce, together with such recommendations as to additional legislation relating thereto as the Commission may deem nec- essary; and the names and compensation of the persons em- ployed by said Commission." Sec. 9. That Section 22 of said Act is hereby amended so as to read as follows: "That nothing in this Act shall prevent the carriage, stor- age, or handling of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and home- less persons transported by charitable societies, and the neces- sary agents employed in such transportation, or the issuance of mileage, excursion, or commutation passenger tickets ; noth- ing in this Act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers and of Solders' and Sailors' Orphan Homes, including those about to enter and those re- turning home after discharge, under arrangements with the boards of managers of said homes; nothing in this Act shall be construed to prevent railroads from giving free carriage APPENDICES. 1077 to their own officers and employees, or to prevent the princi- pal officers of any railroad company or companies from ex- changing passes or tickets with other railroad companies for their officers and employees ; and nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies : Provided, That no pending liti- gation shall in any way be affected by this Act." Sec. 10. That the Circuit and District Courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the Act to which this is a supplement and all Acts amendatory thereof, as pre- vents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said com- mon carrier for like traffic under similar conditions to any other shipper, to issue a writ oi- writs of mandamus against said common carrer, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ : Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be en- forced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such ques- tion of fact is undetermined, upon such terms as to security, payment of money into the Court, or otherwise, as the Court may think proper, pending the determination of the question of fact : Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this Act or the Act to which it is a supplement. (25 Statutes at Large, 855 ; 1 Supp. to Rev. Stat. U. S., 684. C. 382.) APPENDIX 3. Amendment of February 10, 1891. Sec. 1. That Section 12 of an Act entitled "An Act to Reg- ulate Commerce," approved February fourth, eighteen Jiun- dred and eighty-seven, be, and it is hereby, amended so as to read as follows : "Sec. 12. That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which 1078 INTEESTATB TEANSPOKTATION. the same is conducted, and shall have the right to obtain from such common carriers full and complete information neces- sary to enable the Commission to perform the duties and carry- out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commis- sion, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper Court and to prosecute under the direction of the Attorney-General of the United States all necessary proceed- ings for the enforcement of the provisions of this Act and for the punishment of . all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appro- priation for the expenses of the Courts of the United States; and for the purposes of this Act, the Commission shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation. "Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena, the Commission, or any party to a proceeding before the Commission, may invoke the aid of any Court of the United States in requiring the attend- ance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. "And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey the subpoena issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common car- rier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the Court may bfe punished by such Court as a con- tempt thereof. The claim that any such testimony or evi- dence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evi- dence or testimony shall not be used against such person on the trial of any criminal proceeding. "The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation depending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The Commis- APPENDICES. 1079 sion may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investigation. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or superior court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney propos- ing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. "Every person deposing as herein provided shall be cau- tioned and sworn (or aifirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the depo- sition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent. "If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an ofScer or person designated by the Commis- sion, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission. ' ' Witnesses whose depositions are taken pursuant to this Act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like service in the courts of the United States. (26 Statutes at Large, 743 ; 1 Supp. to Rev. Stat., U. S., 891. C. 128.) APPENDIX 4. Amendment of February 8, 1895. Sec. 1- That Section 22 of an Act to regulate Commerce, approved February fourth, eighteen hundred and eighty-seven, and as amended March second, eighteen hundred and eighty- 1080 INTERSTATE TEANSPOETATION. nine, be, and is hereby, amended by adding thereto the fol- lowing proviso: "Provided further, That nothing in this Act shall prevent the issuance of joint interchangeable five-thousand-mile tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand or more miles. But before any common carrier subject to the provisions of this Act, shall issue any such joint interchange- able mileage tickets with special privileges, as aforesaid, it shall file with the Interstate Commerce Commission, copies of the joint tariffs of rates, fares, or charges on which such joint interchangeable mileage tickets are to be based, together with specifications of the amount of free baggage permitted to be carried under such tickets, in the same manner as com- mon carriers are required to do with regard to. other joint rates by Section 6 of this Act; and all the provisions of said Section 6 relating to joint rates, fares ,and charges shall be observed by said common carriers and enforced by the Inter- state Commerce Commission as fully with regard to such joint interchangeable mileage tickets as with regard to other joint rates, fares, and charges referred to in said Section 6. It shall be unlawful for any common carrier that has issued or authorized to be issued any such joint interchangeable mileage tickets to demand, collect, or receive from any person or per- sons a greater or less compensation for transportation of per- sons or baggage under such joint interchangeable mileage tickets than that required by the rate, fare, or charge speci- fied in the copies of the joint tariff of rates, fares, or charges filed with the Commission in force at the time. The provisions of Section 10 of this Act shall apply to any violation of the requirements of this proviso." (28 Statutes at Large, 643 ; 2 Supp. to Rev. Stat. U. S., 369. C. 61.) APPENDIX 5. Amendment of June 29, 1906, Hepburn Act. Sec. 1. That Section 1 of an Act entitled "An Act to Regu- late Commerce, ' ' approved February fourth, eighteen hundred and eighty-seven, be amended so as to read as follows: "Sec. 1. That the provisions of this Act shall apply to any corporation or any person or persons engaged in the trans- portation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and APPENDICES. . 1081 partly by water, who shall be considered and held to be com- mon carriers within the meaning and purpose of this Act, and to any common carrier or carriers engaged in the trans- portation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment), from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States, to an adjacent foreign country, or from any place in the United States, through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from' any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however. That the provisions of this Act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or hand- ling of property wholly within one State and not shipped to or from a foreign country from or to any State or Territory as aforesaid. "The term 'common carrier' as used in this Act shall include express companies and sleeping car companies. The term 'rail- road,' as used in this Act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight depots, yards, and grounds used or neces- sary in the transportation or delivery of any of said property ; and the term 'transportation' shall include ears and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, 1082 INTERSTATE TEANSPOETATIOM". and to establish through rates and just and reasonable rates applicable thereto. "All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as afore- said, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. "No common carrier subject to the provisions of this Act, shall, after January 1, 1907, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and char- itable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the neces- sary agents employed in such transportation ; to inmates of the national homes or state homes for disabled volunteer soldiers, and of soldiers' and sailors' homes, including those about to enter and those returning home after discharge, and boards of managers of such homes ; to necessary caretakers of live stock, poultry, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to Railway Mail Service employees, postoffiee inspectors, cus- toms inspectors and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investi- gation in which the common carrier is interested, persons in- jured in wrecks and physicians and nurses attending such persons : Provided, That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; nor to prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation. Any common car- rier violating this provision shall be deemed guilty of a mis- demeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars, nor more than tWo thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall be subject to a like penalty. Jurisdiction of offenses under this provision shall be the same as that provided for offenses in an Act entitled 'An Act to further regulate commerce APPENDICES. 1083 with foreign nations and among the States,' approved Feb- ruary nineteenth, nineteen hundred and three, and any amend- ment thereof. "Prom and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, pro- duced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its use in the conduct of its busi- ness as a common carrier. "Any common carrier subject to the provisions of this Act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of rail- road, or private side track which may be constructed to con- nect with its railroad, where such connection is reasonable, practicable and can be put in with safety and will furnish suflcient business to justify the construction and maintenance of the same ; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as afore- said, on application therefor in writing by any shipper, such shipper may make complaint to the Commission, as provided in Section 13 of this Act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable com- pensation therefor and the Commission may make an order, as provided in Section 15 of this Act, directing the common carrier to comply with the provisions of this section in ac- cordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the Commission, other than orders for the payment of money. Sec. 2. That Section 6 of said Act, as amended March second, eighteen hundred and eighty-nine, be amended so as to read as follows: ■'Sec. 6. That every common carrier subject to the provi- sions of this Act, shall file with the Commission created by this Act and print and keep open to public inspection, schedules 1084 INTERSTATE TRANSPORTATION. showing all the rates, fares, and charges for transportation be- tween different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspec- tion as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Com- mission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such afore- said rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. Such sched- ules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or of&ce of such carrier where passengers' or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. The provi- sions of this section shall apply to all traffic, transportation, and facilities defined in this Act. "Any common carrier, subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner, print and keep open to public inspection, at every depot or office where such freight is received for ship- ment, schedules showing the through rates, established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment ; and any freight shipped from the United States through a foreign country into the United States, the through rate on which shall not have been made public, as required by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. "No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the re- quirements of this section, except after thirty days' notice to APPENDICES. 1085 the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Provided, That the Com- mission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to pub- lishing, posting, and filing of tariffs, either in particular in- stances or by a general order applicable to special or peculiar circumstances or conditions. "The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the Commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission, and where such evidence of concurrence or ac- ceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. "Every common carrier subject to this Act shall also file with said Commission, copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. "The Commission may determine and prescribe the form in which the schedules, required by this section to be kept open to public inspection, shall be prepared and arranged and may change the form from time to time as shall be found expedient. "No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provi- sions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any earrior refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor 1086 INTBESTATB TKANSPOKTATION. extend to any shipper or person any privilege or facilities in the transportation of passengers or property, except such as are specified in such tariffs: Provided, That wherever the word 'carrier' occurs in this Act it shall be held to mean 'common carrier..' "That in time of war or threatened war, preference and precedence shall, upon the demand of the President of the United States, be given, over all other traffic, to the transpor- tation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic." That Section 1 of the Act entitled "An Act to further regu- late Commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, be amended so as to read as follows: "That anything done or omitted to be done by a corpora- tion common carrier, subject to the Act to Regulate Commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said Acts or by this Act with reference to such persons, except as such penalties are herein changed. The willful failure upon the part of any carrier, subject to said Acts, to file and pub- lish the tariffs or rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimina- tion in respect to the transportation of any property in inter- state or foreign commerce by any common carrier subject to said Act to Regulate Commerce and the Acts amendatory thereof whereby any such property, shall, by any. device what- ever, be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to Regulate Commerce and the Acts amendatory thereof, or whereby any other advantage is given or discrim- ination is practiced. Every person or corporation, whether carrier or shipper, who shall, knowingly, offer, grant, or give. APPENDICES. . 1087 or solicit, accept, or receive any such rebates, concessions, or discrimination, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dol- lars : Provided, That any person, or any officer or director of any corporation subject to the provisions of this Act, or the Act to Regulate Commerce and the Acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or em- ployed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such vio- lation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another, it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. "In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other per- son acting for or employed by any common carrier, or shipper, •acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such car- rier or shipper as well as that- of the person. Whenever any carrier files with the Interstate Commerce Commission or pub- lishes a particular rate under the provisions of the Act to Regulate Commerce or Acts amendatory thereof, or partici- pates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this Act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act. "Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this Act, or from whom as con- signor or consignee, any such carrier shall transport property from one State, Territory, or the District of Columbia to any other State, Territory, or the District of. Columbia, or foreign country, who shall knowingly by employee, agent, officer or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common car- 1088 INTERSTATE TEANSPORTATION. rier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transpor- tation of such property, as fixed by the schedules of rates provided for in this Act, shall, in addition to any penalty pro- vided by this Act, forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and the Attorney-General of the United States, is authorized and di- rected, whenever he has reasonable grounds to believe that any such person, corporation, or company has knowingly re- ceived or accepted from any such common carrier any sum of money or other valuable consideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction, a civil action to collect the said sum or sums so forfeited as aforesaid ; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action, may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total valuQ of such consideration, so received or accepted, or both, as the case may be." Sec. 3. That Section 14 of said Act, as amended March second, eighteen hundred and eighty-nine, be amended so as to read as follows: "See. 14. That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its decisions, order or re- quirement in the premises ; and in ease damages are awarded such report shall include the findings of fact on which the award is made. "All reports of investigations made by the Commission shall be entered of record, and a cony thereof shall be furnished tn the party who may have complained, and to any common car- rier that may have been complained of. "The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publication shall be competent evidence of the reports and decisions of the Commission therein contained in all courts of the United States- and of the several States without any further proof or authentication thereof. The Commission may also cause to be printed for early distribution its annual reports." APPENDICES. 1089 Sec. 4. That Section 15 of said Act be amended so as to read as follows : "Sec. 15. That the Commission is authorized and empow- ered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in Section 13 of this Act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, de- manded, charged, or collected by any common carrier or car- riers, subject to the provisions of this Act, for the transporta- tion of persons or property as defined in the first section of this Act, or that any regulations or practices whatsoever of such carrier or carriers affecting such rates, are unjust and unreasonable, or unjustly discriminatory, or unduly prefer- ential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair, and reasonable to be thereafter followed ; and to make an order that the carrier shall cease and desist from such violation, to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such trans- portation in excess of the maximum rate or charge so pre- scribed, and shall conform to the regulation or practice so prescribed. All orders of the Commission, except orders for the payment of money, shall take effect within such reason- able time, not less than 30 days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a court of competent jurisdiction. "Whenever the carrier ,or carriers, in obedience to such order of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the Commission may, after hearing, make a supplemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrie:t' party thereto, which order shall take effect as a part of the original order. "The Commission may also, after hearing on a complaint, establish through routes and joint rates as the maximum to be charged and prescribe the division of such rates as herein- before provided, and the terms and conditions under which such through routes shall be operated, when that may be Eegulation — 69. 1090 INTEHSTATB TKANSPOKTATION. necessary to give effect to any provision of this Act, and the cairriers complained of have refused or neglected to volun- tarily establish such through routes and joint rates provided no reasonable or satisfactory through route exists, and this provision shall apply when one of the connecting carriers is a water line. "If the owner of property transported under this Act, di- rectly or indirectly renders any service connected with such transportation, or furnishes any instrumentalities used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers, for the service so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for in this section. "The foregoing enumeration of powers shall not exclude any power which the Commission would otherwise have in the making of an order under the provisions of this Act. ' ' Sec. 5. That Section 16 of said Act as amended March second, eighteen hundred and eighty-nine, be amended so as to read as follows : "Sec.^ 16. That if, after bearing on a complaint made as provided in Section 13 of this Act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this Act for a violation thereof, the Commission shall make an order directing the car- rier to pay the complainant the sum to which he is entitled on or before a day named. "If a carrier does not comply with an order for the pay- ment of money within the time limit in such order, the com- plainant, or any person for whose benefit such order was made, may file in the Circuit Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the pro- ceedings unless they accrue upon his appeal. If the petitioner APPENDICES. 1091 shall finally prevail he shall be allowed a reasonable attorney 's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court within one year from the date of the order, and not after: Provided, That claims accrued prior to the passage of this Act may be presented within one year. "In such suits all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in. any district where such defendant carrier has its principal operating office. In case of such joint suit the recovery, if any, may be by judg- ment in favor of any one of such plaintiffs, against the de- fendant found to be liable to such plaintiff. "Every order of the Commission shall be forthwith served by mailing to any one of the principal ofScers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence of the receipt of such order by the carrier in due course of mail. "The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. "It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in effect. "Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of Section 15 of this Act, shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. "The forfeiture provided for in this Act shall be payable into the Treasury of the United States, and shall be recover- 1092 INTERSTATE TEANSPOETATION. able in a civil suit in the name of the United States, brought in the district where the carrier has its principal operating office, or in any district through which the road of the carrier runs. "It shall be the duty of the various district attorneys, under the direction of the Attomey-G-eneral of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appro- priation for the expenses of the courts of the United States. The Commission may, with the consent of the Attorney- General, employ special counsel in any proceeding under this Act, paying the expenses of such employment out of its own appropriation. "If any carrier fails or neglects to obey any order of the Commission, other than for the payment of money, while the same is in effect, any party injured thereby, or the Commis- sion in its own name, may apply to the Circuit Court in the dis- trict where such carrier has its principal operating office, or in which the violation or disobedience of such order shall happen, for an enforcement of such order. Such application shall be by petition, which shall state the substance of the order and the respect in which the carrier has failed of obedience, and shall be served upon the carrier in such man- ner as the court may direct, and the court shall prosecute such inquiries and make such investigations, through such means as it shall deem needful in the ascertainment of the facts at issue or which may arise upon the hearing of such petition. If, upon such hearing as the court may determine to be necessary,, it appears that the order was regularly made and duly served, and that the carrier is in disobedience of "the same, the court shall enforce obedience to such order by writ of injunction, or other proper process, mandatory or otherwise, to restrain such carrier, its officers, agents, or rep- resentatives, from further disobedience of such order, or to enjoin upon it, or them, obedience to the same; and in the enforcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to its writs of injunction and mandamus. "Prom any action upon such petition an appeal shall lie by either party to the Supreme Court of the United States, and in such court the case shall have priority in hearing and determination over all other causes except criminal causes, but such appeal shall not vacate or suspend the order appealed from. "The venue of suits brought in any of the Circuit Courts APPENDICES. 1093 of the United States against tlie Commission to enjoin, set aside, annul, or suspend any order or requirement of the Commission shall be in the district where the carrier against whom such order or requirement may have been made has . its principal operating office, and may be brought at any time after such order is promulgated. And if the order or require- ment has been made against two or more carriers, then in the district where any one of said carriers has its principal operating office, and if the carrier has its principal operating office in the District of Columbia then the venue shall be in the district where said carrier has its principal office; and jurisdiction to hear and determine such suits is hereby vested in such courts. The provisions of 'An Act to expedite the hearing and determination of suits in equity, and so forth,' approved February eleventh, nineteen hundred and three, shall be, and are hereby, made applicable to all such suits, includ- ing the hearing on an application for a preliminary injunction, and are also made applicable to any proceeding in equity to enforce any order or requirement of the Commission, or any of the provisions of the Act to -Eegulate Commerce ap- proved February fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof or supplemental thereto. It shall be the duty of the Attorney-General in every such case to file the certificate provided for in said expediting Act of February eleventh, nineteen hundred and three, as necessary to the application of the provisions thereof, and upon appeal as therein authorized to the Supreme Court of the United States, th« ease shall have in such court priority in hearing and determination over all other causes except criminal causes : Provided, That no injunction, interlocutory order or decree suspending or restraining the enforcement of an order of the Commission shall be granted except on hearing after not less than five days' notice to the Commission. An appeal may be taken from any interlocutory order or decree granting or continuing an injunction in any suit, but shall lie only to the Supreme Court of the United States : Provided further, That the appeal must be taken within thirty days from the entry of such order or decree and it shall take precedence in the appellate court over all other causes, except causes of like character and criminal causes. "The copies of schedules and tariffs of rates, fares, and charges, and of all contracts, agreements, or arrangements between common carriers, filed with the Commission as herein provided, and the statistics, tables, and figures contained in the annual reports of carriers made to the Commission, as 1094 INTERSTATE TEANSPOETATION. required by the provisions of this Act, shall be preserved as public records in the custody of the secretary of the Commis- sion, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial proceedings; and copies of or extracts from any of said schedules, tariffs, contracts, agree- ments, arrangements, or reports made public records as afore- said, certified by the secretary under its seal, shall be received in evidence with like effect as the originals." Sec. 6. That a new section be added to said Act immedi- ately after Section 16, to be numbered as Section 16a, as follows : "Sec. 16a. That after a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time, make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear. Applications for rehearing shall be governed by such general rules as the Commission- may establish. No such application shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. In case a rehear- ing is granted the proceedings thereupon shall conform as nearly as may be to the proceedings in an original hearing, except as the Commission may otherwise direct; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the Commission may reverse, change, or modify the same accordingly. Any deci- sion, order, or requirement, made after such rehearing, revers- ing, changing, or modifying the original determination shall be subject to the same provisions as an original order." Sec. 7. That Section 20 of said Act be amended so as to read as follows : "Sec. 20. That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act, and from the owners of all rail- roads engaged in interstate commerce as defined in this Act, to prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all ques- tions upon which the Commission may need information. Such annual reports shall show in detail the amount of capital APPENDICES. 1095 stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders ; the funded and float- ing debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipments; the number of employees and the salaries paid each class; the accidents to passengers, employees, and other persons, and the causes thereof; the amounts expended for improvements each year, how expended, and the character of such improve- ments; the earnings and receipts from each branch of busi- ness and from all sources ; ^the operating and other expenses ; the balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance sheet. Such reports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts affecting the same as the Commission may require ; and the Commission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this Act, prescribe a period of time within which all common carriers subject to the provisions of this Act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept. "Said detailed reports shall contain all the required statis- tics for the period of twelve months ending on the thirtieth day of June in each year, and shall be made out under Oiath and filed with the Commission, at its office in Washington, on or before the thirtieth day of September then next fol- lowing, unless additional time be granted in any ease by the Commission ; and if any carrier, person, or corporation subject to the provisions of this Act shall fail to make and file said annual reports within the time above specified, or within the time extended by the Commission for making and filing the same, or shall fail to make specific answer to any question authorized by the provisions of this section within thirty days from the time it is lawfully required so to do, such parties shall forfeit to the United States the sum of one hundred dollars for each and every day it shall continue to be in default with respect thereto. The Commission shall also have authority to require said carriers to file monthly reports of earnings and expenses or special reports within a specified period, and if anv such carrier shall fail to file such reports within' the time fixed by the Commission it shall be subject to the forfeitures last above provided. "Said forfeitures shall be covered in the manner pro- 1096 INTERSTATE TKANSPOKTATION. vided for the recovery of forfeitures under the provisions of this Act. "The oath required by this section may be taken before any person authorized to administer an oath by the laws of the State in which the same is taken. ' ' The Commission may, in its discretion, prescribe the forms of any and all laccounts, records, and memoranda to be kept by carriers subject to the provisions of this Act, including the accounts, records, and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The Commission shall at all times have access to all accounts, records, and memoranda kept by carriers subject to this Act, and it shall be unlawful for such carriers to keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, and it may employ special agents or examiners, who shall have authority under the order of the Commission to inspect and examine any and all accounts, records, and memoranda kept by such carriers. This provi- sion shall apply to receivers of carriers and operating trus- tees. "In case of failure or refusal on the part of any such car- rier, receiver, or trustee to keep such accounts, records, and memoranda on the books and in the manner prescribed by the Commission, or to submit such accounts, records, and memor- anda as are kept to the inspection of the Commission or any of its authorized agents or examiners, such carrier, receiver, or trustees shall forfeit to the United States the sum of jfive hundred dollars for each such offense, and for each and every day of the continuance of such offense, such forfeitures to be recoverable in the same manner as other forfeitures provided for in this Act. "Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device falsify the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the carrier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than one thousand dollars nor more than five thousand dollars, or imprisonment for a term APPENDICES. . 1097 not less than one year nor more than three years, or both such fine and imprisonment. "Any examiner who divulges any fact or information which may come to his knowledge during the course of such exam- ination, except in so far as he may be directed by the Com- mission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not more than five thousand dollars or imprisonment for a term not exceeding two years, or both. "That the circuit and district courts of the United States shall have jurisdiction, upon the application of the Attorney- General of the United States at the request of the Commis- sion, alleging a failure to comply with or a violation of any of the provisions of said Act to Regulate Commerce or of any Act supplementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus com- manding such common carrier to comply with the provisions of said Acts, or any of them. "And to carry out and give effect to the provisions of said Acts, or any of them, the Commission is hereby author- ized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence. "That any common carrier, railroad, or transportation com- pany receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or trans- portation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such com- mon carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. "That the common carrier, railroad, or transportation com- pany issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transporta- tion company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such prop- 1098 INTERSTATE TEANSPOETATION. erty, as may be evidenced by any receipt, judgment, or trans- cript thereof." See. 8. That a new section be added to said Act at the end thereof, to be numbered as Section 24, as follows : "Sec. 24. That the Interstate Commerce Commission is hereby enlarged so as to consist of seven members with terms of seven years, and each shall receive ten thousand dollars compensation annually. The qualifications of the Commis- sioners and the manner of the payment of their salaries shall be as already provided by law. Such enlargement of the Commission shall be accomplished through appointment by the President, by and with the advice and consent of the Senate, of two additional Interstate Commerce Commissioners, one for a term expiring December thirty-first, nineteen hun- dred and eleven, one for a term expiring December thirty- first, nineteen hundred and twelve. The terms of the present Commissioners, or of any successor appointed to fill a vacancy caused by the death or resignation of any of the present Commissioners, shall expire as heretofore provided by law. Their successors and the successors of the additional Commis- sioners herein provided for shall be appointed for the full term of seven years, except that any person appointed to fill a vacancy shall be appointed only for the unexpired term of. the Commissioner whom he shall succeed. Not more than four Commissioners shall be appointed from the same political party. ' ' Sec. 9. That all existing laws relating to the attendance of witnesses and the production of evidence and the compel- ling of testimony under the Act to Regulate Commerce and all Acts amendatory thereof shall apply to any and all pro- ceedings and hearings under this Act. Sec. 10. That all laws and parts of laws in conflict with the provisions of this Act are hereby repealed, but the amend- ments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law. Sec. 11. That this Act shall take effect and be in force from and after its passage. (34 Statutes at Large, 584. C. 3591.) APPENDICES. 1099 APPENDIX 6. Amendment, April 13, 1908. AN ACT to amend an Act entitled "An Act to amend an Act entitled 'An Act to Regulate Comnierce, approved February fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission," approved June twenty-ninth, nineteen hundred' and six." Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That paragraph four of section one of the Act entitled "An Act to amend an Act entitled 'An act to Regulate Commerce,' approved February fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission," approved June twenty-ninth, nineteen hundred and six, be amended so that said paragraph as so amended will read as follows: "No common carrier subject to the provisions . of this Act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its em- ployees and their families, its officers, agents, surgeons, phy- sicians, and attorneys at law; to ministers of religion, travel- ing secretaries of railroad Young Men's Christian Associa- tions, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute, and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation, to inmates of the National Homes or State Homes for disabled Volunteer Soldiers and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge and boards of managers of such Homes ; to necessary caretakers of live stock, poultry, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to railway mail service employees, post-office inspectors, customs inspec- tors, and immigration inspectors; to newsboys on trains, bag- gage agents, witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons: Provided, That this provision shall not be construed to pro- hibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; nor to 1100 INTEESTATE TKANSPOETATION. prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epi- demic, pestilence, or other calamitous visitation: Provided further. That the term 'employees' as used in this paragraph shall include furloughed, pensioned; and superannuated em- ployees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a person killed in the employment of a carrier, and exemployees traveling for the purpose of entering the service of any such common carrier; and the term 'families' as used in this paragraph shall include the families of those persons named in this proviso, also the families of persons killed while in the service of such common carrier. Any common carrier violating this provision shall be deemed guilty of a misde- meanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars and any person other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall be subject to a like penalty. Jurisdiction of offenses under this provision shall be the same as that provided for of- fenses in an Act entitled 'An Act to further regulate commerce with foreign nations and among the States,' approved Feb- ruary nineteenth, nineteen hundred and three and any amend- ment thereof." (Approved April 13, 1908.) 35 Statutes at Large, 60. C, 143. APPENDIX 7. Amendment, February 25, 1909. The Amendment of February 25, 1909, supplements Section 20 of the Act to include the following. "That the Commission may in its discretion issue orders specifying such operating, accounting, or financial papers, records, books, blanks, tickets, stubs, or documents of car- riers which may, after a reasonable time, be destroyed, and prescribing the length of time such books, papers, or docu- ments shall be preserved." APPENDIX 8. Act to Regulate Commerce as Amended to Date. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, Sec. 1. {As amended June 29, 1906, and April IS, 1908.) That the APPENDICES. 1101 provisions of this Act shall apply to any corporation or any person or person engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shiall be considered and held to be common carriers within the meaning and purpose of this Act, and to any common carrier or carriers engaged in the transportation of passen- gers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous car- riage or shipment), from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States to an adja- cent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of prop- erty shipped fr.om any place in the United States to a foreign country and carried from such place to a port of transship- ment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country : Provided, however. That the provisions of this Act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one State and not shipped to or from a foreign country from or to any State or Territory as aforesaid. The term "common carrier" as used in this Act shall in- clude express companies and sleeping car companies. The term "railroad," as used in this Act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agree- ment, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind or necessary in the transportation of 'the persons or property designated here- in, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property; and the term "transportation" shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all serv- ices in connection with the receipt, delivery, elevation, and 1103 INTBHSTATE TEANSPOHTATION. transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto. All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and rea- sonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. No common carrier subject to the provisions of this Act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, in- cluding those about to enter and those returning home after discharge and boards of managers of such Homes; to neces- sary care-takers of livestock, poultry, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to Railway Mail Service employees, postofflce inspectors, customs inspectors and immigration in- spectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons : Provided, That this provision shall not be construed" to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families ; nor to prohibit any common carrier from carry- ing passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation. Provided further ^ That the term "employees" as used in this paragraph shall include furloughed, pensioned, and superan- uated employees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a APPENDICES. 1103 person killed in the employment of a carrier and ex-employees traveling for the purpose of entering the service of any such common carrier; and the term "families" as used in this para- graph shall include the families of those persons named in this proviso, also the families of persons killed while in the service of any such common carrier. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than tv70 thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall be subject to a like penalty. Jurisdiction of offenses under this- provision shall be _ the same as that provided for offenses in an Act entitled "An Act to further regulate commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, and any amendment thereof. {See Section 22.) From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or pro- duced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its use in the conduct of its busi- ness as a common carrier. Any common carrier subject to the provisions of this Act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of rail- road, or private side track which may be constructed to con- nect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish suf- ficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such trafiic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application therefor in writing by any shipper, such shipper may make complaint to the Commission, as pro- vided in section thirteen of this Act, and the Commission shall 1104 INTERSTATE TEANSPOETATION. hear and investigate the same and shall determine as to the safe- ty and practicability thereof and justification and reasonable compensation therefor and the Commission may make an order, as provided in section fifteen of this Act, directing the common carrier to comply with the provisions of this section in accord- ance with such order, and such order shall be enforced as here- inafter provided for the enforcement of all other orders by the Commission, other than orders for the payment of money. Sec. 2. That if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compen- sation for any service rendered, or to be rendered, in the trans- portation of passengers or property, subject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. Sec. 3. That is shall be unlawful for any common carrier subject to the provisions of this Act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any par- ticular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Every common carrier subject to the provisions of this Act shall, according to their respective powers, afford all reason- able, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forward- ing, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such con- necting lines ; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged iu like business. Sec. 4. That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a APPENDICES. 1105 longer distance over the same line, in the same direction, the shorter being included within the longer distance ; but this shall not be construed as authorizing any common carrier with- in the terms of this Act to charge and receive as great compen- sation for a shorter as for a longer distance : Provided, however, That upon application to the Commission appointed under the provisions of this Act, s.uch common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the trans- portation of passengers or property ; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this Act. Sec. 5. That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net pro- ceeds of the earnings of such railroads, or any portion thereof ; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separ- ate offense. Sec. 6. {Amended March 2, 18S9. Following section substi- tuted June 29, 1906.) That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print, and keep open to public inspec- tion, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, stor- age charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such afore- said rates, fares, and charges, or the value of the service rend- ered to the passenger, shipper, or consignee. Such schedules Eegulation — 70. 1106 INTEESTATE TEANSPOETATIOIT. shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transpor- tation, in such form that they shall be accessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation, and facilities defined ia this Act. Any common carrier subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a for- eign country into the United States the through rate on which shall not have been made public, as required by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and pub- lished by any common carrier in compliance with the require- ments of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the sched- ule then in force and the time when the changed rates, fares, or charges will go into effect ; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection : Provided, That the Commission may, in its discre- tion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the Commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission, and where such evidence of concurrence or acceptance is filed it APPENDICES. 1107 shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. Every common carrier subject to this Act shall also file with said Commission copies of all contracts, agreements, or arrange- ments with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the form from time to time as shall be found expedient. No carrier, unless otherwise provided by this Act, shall en- gage or participate in the transportation of passengers or prop- erty, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or re- ceive a greater or less or different compensation for such trans- portation of passengers or property, or for any service in con- nection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transporta- tion of passengers or property, except such as are specified in such tariffs: Provided, That wherever the word "carrier" oc- curs in this Act it shall be held to mean "common carrier." That in time of war or threatened war preference and pre- cedence shall, upon the demand of the President of the United States, be given, over all other traffic, to the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the mili- tary traffic. Sec. 7. That it shall be unlawful for any common carrier subject to the provisions of this Act to enter into any combina- tion, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being con- tinuous from the place of shipment to the place of destination ; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some 1108 INTEKSTATE TEANSPOKTATION. necessary purpose, and without any intent to avoid or unneces- sarily interrupt such continuous carriage or to evade any of the provisions of this Act. See. 8. That in case any common carrier subject to the pro- visions of this Act shall do, cause to be done, or permit to be done any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such viola- tion of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. Sec. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction ; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, ap- pear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit ; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Sec. 10. {As amended March 2, 1889.) That any common carrier subject to the provisions of this Act, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to he done, any a;ct, matter, or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this Act required APPENDICES. 1109 to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this Act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thou- sand dollars for each offense : Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fare, or charges, for the transportation of passengers or property, such person shall, in addition to the fine hereinbefore provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discre- tion of the court. Any common carrier subject to the provisions of this Act, or, whenever such common carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other de- vice or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the pentientiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense. Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this Act, or for whom as consignor or consignee any such carrier shall trans- port property, who shall knowingly and willfully, by false billing, false classification, false weigning, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain trans- portation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a mis- demeanor, and shall, upon conviction thereof in any court of 1110 INTERSTATE TRANSPOETATION. the United States of competent jurisdiction within the district in which such ojlense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or im- prisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. If any such person, or any officer or agent of any such cor- poration or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any common car- rier subject to the provisions of this Act, or any of its ofScers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such person or such officer or agent of such corporation or company shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense ; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly or severally, in an action on the case to be brought by any consignor or consignee discrimi- nated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom. Sec. 11. That a Commission is hereby created and estab- lished to be known as the Interstate Commerce Commission, wtich shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. The Commissioners first appointed under this Act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, Anno Domini eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed. Any Commissioner may be removed by the President for in- efficiency, neglect of duty, or malfeasance in office. Not more than three of the Commissioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this Act, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said Commission- APPENDICES. 1111 ers shall not engage in any other business, vocation or employ- ment. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission. {See section 2^, enlarging Commission and in- creasing salaries.) See. 12. {As amended March 2, 1889, and February 10, 1891.) That the Commission hereby created shall have authority to inquire into the management of the business of all common car- riers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such com- mon carriers full and complete information necessary to enable the Commission to perform the duties and carry out the ob- jects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act ; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney- Greneral of the United States all necessary proceedings for the enforcement of the provisions of this Act and for the punish- ment of all violations thereof, and the costs and expenses of such prosecutions shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this Act the Commission shall have power to re- quire, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under in- vestigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission may invoke the aid of any court of the United States in requiring the attend- ance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. Arid any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any com- mon carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the mat- ter in question ; and any failure to obey such order of the court 1112 INTERSTATE TEANSPOETATION. may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to crimin- ate the person giving such evidence shall not excuse such wit- ness from testifying ; but such evidence or testimony shall not be used against such person on the trial of any criminal pro- ceeding. The testimony of any witness may be taken, at the instance of a party in any proceeding or investigation depending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any pro- ceeding or investigation pending before it, at any stage of such proceeding or investigation. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the pro- ceeding or investigation. Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same man- nerner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent. If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an ofSeer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission. Witnesses whose depositions are taken pursuant to this Act, and the magistrate or other officer taking the same, shall sever- APPENDICES. 1113 ally be entitled to the same fees as are paid for like services in the courts of the United States. Sec. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of any- thing done or omitted to be done by any common carrier sub- ject to the provisions of this Act in contravention of the provi- sions thereof, may apply to said Commission by petition, vs^hieh shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission. If such common car- rier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the mat- ters complained of in such manner and by such means as it shall deem proper. Said Commission shall in like manner investigate any com- plaint forwarded by the railroad commissioner or railroad commission of any State or Territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. Sec. 14. (Amended March 2, 1889, and June 29, 1906.) That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect, thereto, which shall state the conclusions of the Commission, together with its decision, order, or requirement In the prem- ises; and in case damages are awarded such report shall in- clude the findings of fact on which the award is made. All reports of investigations made by the Commission shall be entered of record^ and a copy thereof shall be furnished to the party who may have complained, and to any common car- rier that may have been complained of. The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publica- tions shall be competent evidence of the reports and decisions 1114 INTERSTATE TEANSPOETATION.' of the Commission therein contained in all courts of the United States and of the several States without any further proof or authentication thereof. The Gommission may also cause to be printed for early distribution its annual reports. See. 15. {As amended June 29, 1906.) That the Commission is authorized and empowered, and it shall be its duty, when- ever, after full hearing upon a complaint made as provided in section thirteen of this Act, or upon complaint of any com- mon carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, subject to the provisions of this Act, for the transportation of persons or property as defined in the first section of this Act, or that any regulations or prac- tices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and pre- scribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such ease as the maxi- mum to he charged ; and what regulation or practice in respect to such transportation is just, fair, and reasonable to be there- after followed ; and to make an order that the carrier shall cease and desist from such violation, to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such trans- portation in excess of the maximum rate or charge so pre- scribed, and shall conform to the regulation or practice so pre- scribed. All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a court of competent jurisdic- tion. Whenever the carrier or carriers, in obedience to such order of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the Commission may after hearing make a supplemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order. The Commission may also, after hearing on a complaint es- tablish through routes and joint rates as the maximum to be charged and prescribe the division of such rates as hereinbe- APPENDICES. 1115 fore provided, and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any provision of this Act, and the carriers complained of have refused or neglected to voluntarily estab- lish such through routes and joint rates, provided no reason- able or satisfactory through route exists, and this provision shall apply when one of the connecting carriers is a water line. If the owner of property transported under this Act directly or indirectly renders any service connected with such trans- portation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint, determine what is a reasonable charge as the maxi- mum to be paid by the carrier or carriers for the service so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shaU. have the same force and effect and be enforced in like manner as the orders above provided for in this section. The foregoing enumeration of powers shall not exclude any power which the Commission would otherwise have in the mak- ing of an order under the provisions of this Act. Sec. 16. {Amended March Z, 1889. Following section substi- tuted June 29, 1906.) That if, after hearing on a complaint made as provided in section thirteen of this Act, the Commis- sion shall determine that any party complainant is entitled to an award of damages under the provisions of this Act for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named. If a carrier does not comply with an order for the pay- ment of money within the time limit in such order, the com- plainant, or any person for whose benefit such order was made, may file in the circuit court of the United States for the dis- trict in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the peti- tioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail 1116 . INTERSTATE TEANSPORTATION. he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of damages shall be filed with the Commis- sion within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit court within one year from the date of the order, and not after : Provided, That claims accrued prior to the passage of this Act may be presented within one year. In such suits all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal operating office. In case of such joint suit the recovery, if any, may be by judg- ment in favor of any one of such plaintiffs, against the de- fendant found to be liable to such plaintiff. Every order of the Commission shall be forthwith served by mailing to any one of the principal officers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence. of the receipt of such order by the carrier in due course of mail. The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in effect. Any carrier, any officer, representative, or agent of a car- rier, or any receiver, trustee, lessee or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of section fifteen of this Act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. The forfeiture provided for in this Act shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States, brought in APPENDICES. 1117 the district where the carrier has its principal operating office, or in any district through which the road of the carrier runs. It shall be the duty of the various district attorneys, under the direction of the Attorney-General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appro- priation for the expenses of the courts of the United States. The Commission may with the consent of the Attorney-Gen- eral, employ special counsel in any proceeding under this Act, paying the expenses of such employment out of its own ap- propriation. If any carrier fails or neglects to obey any order of the Commission, other than for the payment of money, while the same is in effect, any party injured thereby, or the Com- mission in its own name, may apply to the circuit court in the district where such carrier has its principal operating of- fice, or in which the violation or disobedience of such order shall happen, for an enforcement of such order. Such ap- plication shall be by petition, which shall state the substance of the order and the respect in which the carrier has failed of obedience, and shall be served upon the carrier in such man- ner as the court may direct, and the court shall prosecute such inquiries and make such investigations, through such means as it shall deem needful in the ascertainment of the facts at issue or which may arise upon the hearing of such petition. If, upon such hearing as the court may determine to be necessary, it appears that the order was regularly made and duly served, and that the carrier is in disobedience of the same, the court shall enforce obedience to such order by a writ of in.iunetion, or other proper process, mandatory or otherwise, to restrain such carrier, its officers, agents, or repre- sentatives, from further disobedience of such order, or to en- join upon it, or them, obedience to the same; and in the en- forcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to its writs of injunction and mandamus. From any action upon such petition an appeal shall lie by either party to the Supreme Court of the United States, and in such court the case shall have priority in hearing and de- termination over all other causes except criminal causes, but such appeal shall not vacate or suspend the order appealed from. The venue of suits brought in any of the circuit courts of the United States against the Commission to enjoin, set aside, annul, or suspend any order or requirement of the Commis- 1118 INTERSTATE TEAXSPOETATION. ' sion shall be in the district where the carrier against whom such order or requirement may have been made has its prin- cipal operating office, and may be brought at any time after such order is promulgated. And if the order or requirement has been made against two or more carriers' then in the district where any one of said carriers has its principal operating office, and if the carrier has its principal operating office in the District of Columbia then the venue shall be in the district where said carrier has its principal office; and jurisdiction to hear and determine such suits is hereby vested in such courts. The provisions of "An Act to expedite the hearing and de- termination of suits in equity, and so forth," approved Feb- ruary eleventh, nineteen hundred and three, shall be, and are hereby, made applicable to all such suits, including the hearing on an application for a preliminary injunction, and are also made applicable to any proceeding in equity to en- force any order or requirement of the Commission, or any of the provisions of the Act to regulate commerce approved Feb- ruary fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof or supplemental thereto. It shall be the duty of the Attorney-General in every such case to file the certificate provided for in said expediting Act of February eleventh, nineteen hundred and three, as necessary to the ap- plication of the provisions thereof, and upon appeal as therein authorized to the Supreme Court of the United States, the case shall have in such court priority in hearing and determination over all other causes except criminal causes : Provided, That no injunction, interlocutory order or decree suspending or restraining the enforcement of an order of the Commission shall be granted except on hearing after not less than five days' notice to the Commission. An appeal may be taken from any interlocutory order or decree granting or continuing an injunction in any suit, but shall lie only to the Supreme Court of the United States : Provided further, That the appeal must be taken within thirty days from the entry of such order or decree and it shall take precedence in the appellate court over all other causes, except causes of like character and crim- inal causes. The copies of schedules and tariffs of rates, fares and charges, and of all contracts, agreements, or arrangements between common carriers filed with the Commission as here- in provided, and the statistics, tables and figures contained in the annual reports of carriers made to the Commission, as required by the provisions of this Act, shall be preserved as public records in the custody of the secretary of the Com- APPENDICES. 1119 mission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial proceedings; and copies of or extracts from any of said schedules, tariffs, contracts, agree- ments, arrangements, or reports made public records as afore- said, certified by the secretary under its seal, shall be received in evidence with like effect as the originals. Sec. 16a. (Added June 29, 1906.) That after a decision, order, or requirement has been made by the Commission in any proceeding any party thereto may at any time make applica- tion for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its dis- cretion to grant such a rehearing if sufficient reason therefor be made to appear. Applications for rehearing shall be gov- erned by such general rules as the Commission may establish. No such application shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. In case a rehearing is granted the proceedings thereupon shall conform as nearly as may be to the proceed- ings in an original hearing, except as the Commission may otherwise direct; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the Commission may reverse, change, or modify the same ac- cordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order. Sec. 17. (As amended March 2, 1889.) That the Commission may conduct its proceedings in such manner as will best con- duce to the proper dispatch of business and to the ends of justice. A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any hearing or proceeding in which he has any pecuniary interest. Said Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said Commission and be heard in person or by attorney. Every vote and oiSeial act of the Commission shall be entered of 112U INTERSTATE TEANSPOETATION. record, and its proceedings shall be public upon the request of either party interested. Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirma- tions and sign subpoenas. Sec. 18. {As amended Maroh 2, 1889.) [See Section 21)., increas- ing salaries of Commissioner s.\ That each Commissioner shall receive an annual salary of seven thousand five hundred dol- lars, payable in the same manner as the judges of the courts of the United States. The Commission shall appoint a secre- tary, v7ho shall receive an annual salary of three thousand five hundred dollars,^ payable in like manner. The Commis- sion shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its duties. Until otherwise provided by law, the Commission may hire suitable offices for its use, and shall have authority to procure all necessarj* office supplies. Wit- nesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. All of the expenses of the Commission, including all neces- sary expenses for transportation incurred by the Commis- sioners, or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the Commission. Sec. 19. That the principal office of the Commission shall be in the city of Washington, where its general sessions shall be held; but whenever the convenience of the public or the parties may be promoted, or delay or expense prevented there- by, the Commission may hold special sessions in any part of the United States. It may, by one or more of the Commis- sioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this Act. Sec. 20. {As amended June 29, 1906, and February 25, 1909.) That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act, and from the owners of all railroads engaged in interstate commerce as defined in this Act; to prescribe the 1 Increased to $5,000 by sundry civil Act of March 4, 1907, 34 Stat. L., 1311. APPENDICES. 1121 manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the Commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, 'and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the carrier's property, franchises and equipments; the number of employees and the salaries paid each class; the accidents to passengers, employees, and other persons, and the causes thereof; the amount expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources ; the operating and other expenses ; the balanijes of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual bal- ance sheet. Such reports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts affecting the same as the Commission may require; and the Commission may, in its discretion, for the purpose of enabling it the better to. carry out the purposes of this Act, prescribe a period of time within which all common carriers subject to the provisions of this Act shall have, as near as may be, a uniform system of ac- counts, and the manner in which such accounts shall be kept. Said detailed reports shall contain all the required statistics for the period of twelve months ending on the thirtieth day of June in each year, and shall be made out under oath and filed with the Commission, at its office in Washington, on or before the thirtieth day of September then next following, unless additional time be granted in any ease by the Commis- sion; and if any carrier, person, or corporation subject to the provisions of this Act shall fail to make and file said annual reports within the time above specified, or within the time, extended by the Commission for making and filing the same, or shall fail to make specific answer to any question au- thorized by the provisions of this section within thirty days ■from the time it is lawfully required so to do, such parties shall forfeit to the United States the sum of one hundred dol- lars for each and every day it shall continue to be in default with respect thereto. The Commission shall also have author- ity to require said carriers to file monthly reports of earnings and expenses or special reports within a specified period, and if any such carrier shall fail to file such' reports within the Eegulatign' — 71. 1123 INTBKSTATE TKANSPOETATION. time fixed by the Commission it shall be subject to the forfeit- ures last above provided. Said forfeitures shall be recovered in the manner provided for the recovery of forfeitures under the provisions of this Act. The oath required by this section may be taken before any person authorized to administer an oath by the laws of the State in which the same is taken. The Commission may, in its discretion, prescribe the forms of any and all accounts, records, and memoranda to be kept by carriers subject to the provisions of this Act, including the accounts, records, and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The Com- mission shall at all times have access to all accounts, records, and memoranda kept by carriers subject to this Act, and it shall be unlawful for such carriers to keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, and it may employ special agents or examin- ers, who shall have authority under the order of the Commis- sion to inspect and examine any and all accounts, records, and memoranda kept by such carriers. This provision shall apply to receivers of carriers and operating trustees. In case of failure or refusal on the part of any such car- rier, receiver, or trustee to keep such accounts, records, and memoranda on the books and in the manner prescribed by the Commission, or to submit such accounts, records, and memo- randa as are kept to the inspection of the Commission or any of its authorized agents or examiners, such carrier, receiver, or trustee shall forfeit to the United States the sum of five hundred dollars for each such offense and for each and every day of the continuance of such offense, such forfeitures to be recoverable in the same manner as other forfeitures provided for in this Act. Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memo- randa kept by a carrier, or who shall willfully destroy, muti- late, alter, or by any other means or device falsify the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries* in such accounts, records, or memoranda of all facts and trans- actions appertaining to the carrier's business, or shall keep any other accounts, records, or memoranda than those pre- scribed or approved by the Commission, shall be deemed guilty of a misdemeanor, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to APPENDICES. 1133 a fine of not less than one thousand dollars nor more than five thousand dollars or imprisonment for a term not less than one year nor more than three years, or both such fine and im- prisonment : Provided, That the Commission may in its discre- tion issue orders specifying such operating, accounting, or financial papers, records, books, blanks, tickets, stubs, or docu- ments of carriers which may, after a reasonable time, be de- stroyed, and prescribing the length of time such books, papers, or documents shall be preserved. Any examiner who divulges any fact or information which may come to his knowledge during the course of such examina- tion, except in so far as he may be directed by the Commis- sion or by a court or judge thereof, shall be subject, upon con- viction in any court of the United States of competent juris- diction, to a fine of not more than five thousand dollars or imprisonment for a term not exceeding two years, or both. That the circuit and district courts of the United States shall have jurisdiction, upon the application of the Attorney- General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of said Act to regulate commerce or of any Act sup- plementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said Acts, or any of them. And to carry out and give effect to the provisions of said Acts, or any of them, the Commission is hereby authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence. That any common carrier, railroad, or transportation com- pany receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common car- rier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation com- pany issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transporta- 1124 INTEKSTATB TEANSPOETATION. tion company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or in- jury as it may be required to pay to the owners of such prop- erty, as may be evidenced by any receipt, judgment, or tran- script thereof. See. 21. {As amended March 2, 1889.) That the Commission shall, on or before the first day of December in each year, make a report, which shall be transmitted to Congress, and copies of which shall be distributed as are the other reports transmitted to Congress. This report shall contain such in- formation and data collected by the Commission as may be considered of value in the determination of questions con- nected with the regulation of commerce, together with such recommendations as to additional legislation relating thereto as the Commission may deem necessary; and the names and compensation of the persons employed by said Commission. Sec. 22. {As amended March 2, 1889, and Fehruary 8, 1895.) [See section 1, ith par.] . That nothing in this Act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in such transportation, or the issu- ance of mileage, excursion, or commutation passenger tickets; nothing in this Act shall be construed to prohibit any com- mon carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of in- digent persons, or to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Orphan Homes, including those about to enter and those returning home after discharge, under arrangements with the boards of managers of said homes; nothing in this Act shall be construed to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees; and nothing in this Act con- tained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies : Provided, That no pending litigation shall in any way be affected by this Act: Provided further. That nothing in this Act shall prevent the issuance of joint interchangeable five-thousand-mile tickets, with special privileges as to the amount of free baggage, that APPENDICES. 1125 may be carried under iaileage tickets of one thousand or more miles. But before any common carrier, subject to the provisions of this Act, shall issue any such joint interchange- able mileage tickets with special privileges, as aforesaid, it shall file with the Interstate Commerce Commission copies of the joint tariffs of rates, fares, or charges on which such joint interchangeable mileage tickets are to be based, together with specifications of the amount of free baggage permitted to be carried under such tickets, in the same manner as common car- riers are required to do with regard to other joint rates by section six of this Act; and all the provisions of said section six relating to joint rates, fares and charges shall be observed by said common carriers and enforced by the Interstate Com- merce Commission as fully with regard to such joint inter- changeable mileage tickets as with regard to other joint rates, fares, and charges referred to in said section six. It shall be unlawful for any common carrier that has issued or author- ized to be issued any such joint interchangeable mileage tick- ets to demand, collect, or receive from any person or persons a greater or less compensation for transportation of persons or baggage under such joint interchangeable mileage tickets than that required by the rate, fare, or charge specified in the copies of the joint tariff of rates, fares, or charges filed with the Commission in force at the time. The provisions of section ten of this Act shall apply to any violation of the re- quirements of this proviso. NEW SECTION. {Added March Z, 1889.) [See. 23.] That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the Act to which this is a supple- ment axid all Acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding. such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ : Provided, That if any ques- tion of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court. 1126 INTERSTATE TRANSPORTATION. or otherwise, as th.e court may think proper, pending the determination of the question of fact : Provided, That the rem- edy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other reme- dies provided by this Act or the Act to which it is a supple- ment. Sec. 24. (Added June 29, 1906.) That the Interstate Com- merce Commission is hereby enlarged so as to consist of seven members witli terms of seven years, and each shall receive ten thousand dollars compensation annually. The qualifications of the Commissioners and the manner of the payment of their salaries shall be as already provided by law. Such enlarge- ment of the Commission shall be accomplished through ap- pointment by the President, by and with the advice and consent of the Senate, of two additional Interstate Commerce Commissioners, one for a term expiring December thirty-first, nineteen hundred and eleven, one for a term expiring Decem- ber thirty-first, nineteen hundred and twelve. The terms of the present Commissioners, or of any successor appointed to fill a vacancy caused by the death or resignation of any of the present Commissioners, shall expire as heretofore provided by law. Their successors and the successors of the additional Commissioners herein provided for shall be appointed for the full term of seven years, except that any person appointed to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed. Not more than four Commissioners shall be appointed from the same political party. {Additional provisions in Act of June 29, 1906.) (See. 9.) That all existing laws relating to the attendance of witnesses and the production of evidence and the compelling of testi- mony under the Act to regulate commerce and all Acts amend- atory thereof shall apply to any and all proceedings and hear- ings under this Act. (Sec. 10.) That all laws and parts of laws in conflict with the provisions of this Act are hereby repealed ; but the amend- ments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prose- cuted to a conclusion in the manner heretofore provided by law. (Sec. 11.) That this Act shall take effect and be in force from and after its passage. Joint resolution of June 30, 1906, provides : ' ' That the act entitled 'An act to amend an act entitled "An act to regulate commerce," approved February 4, 1887, and all acts amend- APPENDICES. 1127 atory thereof, and to enlarge the powers of the Interstate Commerce Commission,' shall take effect and be in force sixty days after its approval by the President of the United States." An act to regulate commerce, approved February 4, 1887, and in effect April 5, 1887 (24 Statutes at Large, 379) Public No. 41, as amended by an act approved March 2, 1889 (25 Statutes at Large, 855), Public No. 125, by an act approved February 10, 1891 (26 Statutes at Large, 743), Public No. 72, by an act approved February 8, 1895 (28 Statutes at Large, 643), Public No. 38, by an act approved June 29, 1906 (34 Statutes at Large, 584), Public No. 337, by a joint resolution approved June 30 1906 (34 Statutes at Large, 838), Public Ees. No. 47, by an act approved April 13, 1908 (35 Statutes at Large 60), Public No. 95, and by an act approved February 25, 1909 (36 Statutes at Large, — ), Public No. 262. APPENDIX 9. Immunity of Witnesses Acts. Act of February 11, 1893. AN ACT In relation to testimony before the Interstate Commerce Commission, and in cases or proceedings under or connected with an act entitled "An act to regulate commerce," approved February fourth, eighteen nundred and eighty-seven, and amendments thereto. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall be excused from attending and . testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commis- sioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled "An act to regulate commerce," ap- proved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, re- quired of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the sub- poena of either of them, or in any such ease or proceeding: 1138 INTERSTATE TKANSPOETATION. Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so tes- tifying. Any person who shall neglect or refuse to attend and tes- tify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpoena or lawful re- quirement of the Commission, shall be guilty of an offense and upon conviction thereof by a court of competent juris- diction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprison- ment for not more than one year or by both, such fine and imprisonndent. Public, No. 54, approved February 11, 1893 (27 Statutes at Large, 443). Amendment of June 30, 1906. AN ACT Defining the riglit of immunity of witnesses under the Act entitled "An act in relation to testimony before the Interstate Com- merce Comm.ission," and so forth, approved February eleventh, eighteen hundred and ninety-three, and an act entitled "An act to establish the Department of Commerce and Labor," approved February fourteenth, nineteen hundred and three, and an act entitled "An act to further regulate commerce with roreign nations and, among the States," approved February nineteenth, nineteen hundred and three, and an act entitled "An act making appropria- tions for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," approved February twenty-fifth, nineteen hundred and three. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That under the immunity provisions in the Act entitled "An Act in relation to testimony before the Interstate Commerce Com- mission," and so forth, approved February eleventh, eighteen hundred and ninety- three, in section six of the. Act entitled "An Act to establish the Department of Commerce and Labor," approved February fourteenth, nineteen hundred and three, andin the Act entitled "An Act to further regulate com- merce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, and in the Act entitled "An Act making appropriations for the legisla- tive, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," approved February twenty- APPENDICES. 1129 fifth, nineteen hundred and three, immunity shall extend only to a natural person who, in obedience to a subpoena, gives tes- timony under oath or produces evidence, documentary or other- wise, under oath. Public No. 389, approved June 30, 1906 (34 Statutes at Large, 798). APPENDIX 10. ElMns Act, as Ori^ally Enacted. Sec. 1. That anything done or omitted to be done by a cor- poration common carrier, subject to the Act to regulate com- merce and the Acts amendatory thereof which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or em- ployed by such corporation, would constitute a misdemeanor under said Acts or under this Act shall also be held to be a misdemeanor committed by such corporation, and upon con- viction thereof it shall be subject to like penalties as are prescribed in said Acts or by this Act with reference to such persons except as such penalties are herein changed. The willful failure upon the part of any carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be un- lawful for any person, persons, or corporation to offer, grant, or give or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any prop- erty in interstate or foreign commerce by any common car- rier subject to said Act to regulate commerce and the Acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to regulate commerce and the Acts amendatory thereto, or whereby any other advantage is given or discrimi- nation is practiced. Every person or corporation who shall offer, grant, or give or solicit, accept or receive any such re- bates, concessions, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars. In all convictions occurring after the passage of this Act for offenses under said Acts to regu- late commerce, whether committed before or after the passage 1130 INTEBSTATE TRANSPOETATION. of this Act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine pre- scribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. In construing and enforcing the provisions of this section the act, omission, or failure of any officer, agent, or other per- son acting for or employed by any common carrier acting within the scope of his employment shall in every case be also deemed to be the act, omission, or failure of such carrier as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or publishes a particu- lar rate under the provisions of the Act to regulate commerce or Acts amendatory thereto, or participate in any rates so filed or published, that rate as against such carrier, its officers, or agents in any prosecution begun under this Act shall be conclusively deemed to be the legal rate and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act. Sec. 2. That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be begun originally in any circuit court of the* United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under considera- tion, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers. Sec. 3. That whenever the Interstate Commerce Commis- sion shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is committing any discriminations forbidden by law, a petition may be presented alleging such facts to the circuit court of the United States sitting in equity having jurisdic- APPENDICES. 1131 tion ; and when the act complained of is alleged to have been eomniitted or as being committed in part in more -than one judicial district or State, it may be dealt with, inquired of, tried, and determined in either such judicial district or State, whereupon it shaU be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal plead- ings and proceedings applicable to ordinary suits in equity, and to make- such other persons or corporations parties there- to as the court may deem necessary, and upon being satisfied of the truth of the allegations of said petition said court shall enforce an observance of the published tariffs- or direct and require a discontinuance of such discrimination by proper orders, writs, and process, which said orders, writs, and pro- cess may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of ap- peal as now provided by law. It shall be the duty of the sev- eral district attorneys of the United States, whenever the At- torney-General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to insti- tute and prosecute such proceedings, and the proceedings pro- vided for by this Act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said Act approved February fourth, eighteen hundred and eighty-seven, entitled An act to regu- late commerce and the Acts amendatory thereof. And in pro- ceedings under this Act and the Acts to regulate commerce the said courts shall have the power to compel the attendance of witnesses, both upon the part of the carrier and the ship- per, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the production of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to such transaction; the claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation produc- ing its books and papers, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence documentary or otherwise in such pro- ceeding: Provided, That the provisions of an Act entitled "An Act to expedite the hearing and determination of suits in equity pending or hereafter brought under the Act of July second, eighteen hundred and ninety, entitled 'An Act to pro- tect trade and commerce against unlawful restraints and 1133 INTBESTATB TKANSPOKTATION. monopolies,' 'An Act to regulate commerce,' approved Feb- ruary fourth, eighteen hundred and eighty-seven, or any other Acts having a like purpose that may be hereafter enacted, approved February eleventh, nineteen hundred and three," shall apply to any case prosecuted under the direction of the Attorney-General in the name of the Interstate Commerce Commission. Sec. 4. That all Acts and parts of Acts in conflict with the provisions of this Act are hereby repealed, but. such repeal shall not affect causes now pending nor rights which have already accrued, but such causes shall be prosecuted to a conclusion and such rights enforced in a manner heretofore provided by law and as modified by the provisions of this Act. , See. 5. That this Act shall take effect from its passage. (32 Statutes at Large, 847. C. 708.) . APPENDIX 11. ElMns Act as Amended to Date. AN ACT To further regulate commerce with foreign nations and among the States. Be it enacted by the Senate and Hoxise of Representatives of the United States of America in Congress assernbled, See. 1. {As amended June 29, 1906.) That anything done or omitted to be done by a corporation common carrier, subject to the act to regulate commerce and the acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent or person acting for or employed by such corporation, would constitute a mis- demeanor under said acts or under this act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said acts or by this act with reference to such persons, except as such penalties are herein changed. The willful failure upon the part of any carrier subject to said acts to file and publish the tariffs or rates and charges as required by said acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be un- lawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or discrimination in respect to the transportation of any prop- APPENDICES. 1133 erty in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amenda- tory thereof whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereof, or whereby any other advantage is given or discrimi- nation is practiced. Every person or corporation, whether carrier or shipper, who shall, knowingly, ofEer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dol- lars: Provided, That any person, or any officer or director of any corporation subject to the provisions of this act, or the act to regulate commerce and the acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Every violation of this section shall be prosecuted in any court of the United States haying jurisdiction of crimes within the district in which such viola- tion was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and- completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdic- tion in the same manner as if the offense had been actually and wholly committed therein. In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other per- son acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such car- rier or shipper as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or pub- lishes a particular rate under the provisions of the act to regu- late commerce or acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution- begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this act. Any person, corporation, or company who shall deliver prop- 1134 INTERSTATE TEANSPOKTATION. erty for interstate transportation to any common carrier, sub- ject to the provisions of this act, or for whom, as consignor or consignee, any such carrier shall transport property from one State, Territory, or the District of Columbia to any other State, Territory, or the District of Columbia, or foreign coun- try, who shall knowingly by employee, agent, officer, or other- wise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this act, shall in addition to any penalty provided by this act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court ; and the Attorney-General of the United States is authorized and directed, whenever he has reasonable grounds to believe that any such person, cor- poration, or company has knowingly received or accepted from any such common carrier any sum of money or other valuable consideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction a civil action to collect the said sum or sums so forfeited as aforesaid; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action may be in- cluded therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be. Sec. 2. That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be begun originally in any circuit court of the United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under considera- tion, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers. Sec. 3. That whenever the Interstate Commerce Commis- sion shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight APPENDICES. 1135 traffic between given points at less than the published rates on file, or is committing any discriminations forbidden by law, a petition may be presented alleging such facts to the circuit court of the United States sitting in equity having jurisdiction; and when the act complained of is alleged to have been committed or as being committed in part in more than one judicial district or State, it may be dealt with, in- quired of, tried, and determined in either such judicial district or State, whereupon it shall be the duty of the court sum- marily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to ordinary suits in equity, and to make such other persons or corporations parties thereto as the court may deem necessary, and upon being satisfied of the truth of the allegations of said petition said court shall enforce an observance of the published tariffs or direct and require a discontinuance of such discrimination by proper orders, writs, and process, which said orders, writs, and process may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of appeal as now provided by law. It shall be the duty of the several district attorneys of the United States, whenever the Attorney-General shall direct, either of his own motion or upon the request of the Interstate Commerce Com- mission, to institute and prosecute such proceedings, and the proceedings provided for by this act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said act approved February fourth, eighteen hundred and eighty-seven, entitled An act to regulate commerce and the acts amendatory thereof. And in proceedings under this act and the acts to regulate commerce the said courts shall have the power to compel the attendance of witnesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the production of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to such transaction ; the claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers, but no person shall be prose- cuted or subjected to any penalty or forfeiture for or on ac- count of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or other- wise in such proceeding : Provided, That the provisions of an 1136 INTERSTATE TRANSPORTATION. act entitled "An act to expedite the hearing and determina- tion of suits in equity pending or hereafter brought under the act of July second, eighteen hundred and ninety, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' 'An act to regulate commerce,' approved Feb- ruary fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may be hereafter enacted, approved February eleventh, 'nineteen hundred and three," shall apply to any case prosecuted under the direction of the Attorney-General in the name of the Interstate Commerce Commission. Sec. 4. That all acts and parts of acts in conflict with the provisions of this act are hereby repealed, but such repeal shall not affect causes now pending, nor rights which have already accrued, but such causes shall be prosecuted to a conclusion and such rights enforced in a manner heretofore provided by law and as modified by the provisions of this act. Sec. 5. That this act shall take effect from its passage. Public, No. 103, approved February 19, 1903, (32 Statutes at Large, 847), as amended June 29, 1906, (34 Statutes at Large, 584). (See additional provisions in act of June 29, 1906, p. S2.) APPENDIX 12. Expediting Act. AN ACT To expedite the hearing and determination of suits in equity pending or hereafter brought under the act of July second, eighteen hundred and ninety, entitled "An act to protect trade and com- merce against unlawful restraints and monopolies," "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may be hereafter enacted. Be it enacted hy the Senate and Hoiise of Representatives of the United States of America in Congress assembled. That in any suit in equity pending or hereafter brought in any circuit court of the United States under the act entitled "An act to protect trade and commerce against unlawful restraints and monopolies, ' ' approved July second, eighteen hundred and ninety, "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney-G-eneral may file with the clerk of such court a certificate that, in. his opin- APPENDICES. 1137 ion the case is of general public importance, a copy of which shaU be immediately furnished by such clerk to each of the circuit judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day, before not less than three of the cir- cuit judges of said circuit, if there be three or more ; and if there be not more than two circuit judges, then before them and such district judge as they may select. In the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter pro- vided. Sec. 2. That in every suit in equity pending or hereafter brought in any circuit court of the United States under any of said acts, wherein the United States is complainant, including cases submitted but not yet deaided, an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from the entry thereof: Provided, That in any ease where an appeal may have been taken from the final decree of a circuit court to the circuit court of appeals before this act takes effect, the case shall proceed to a final decree therein, and an appeal may be taken from such decree to the Supreme Court in the manner now provided by law. Public No. 82, approved February 11, 1903 (32 Statutes at Large, 823). APPENDIX 13. Govenuuent-Aided Railroad Act. AN ACT Supplementary to the act of July first, eighteen hundred and sixty-two, entitled "An act to aid in the construction of a rail- road and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes," and also of the act of July second, eighteen hundred and sixty-four, and other acts amendatory of said first named act. Be it enacted by the Senate and House of Representatives of the United States' of America in Congress assernbled, That all railroad and telegraph companies to which the United States has granted any subsidy in lands or bonds or loan of credit for the construction of either railroad or telegraph lines, which, by the acts incorporating them, or by any act amend- atory or supplementary thereto, are required to construct, maintain, or operate telegraph lines, and all companies en- Eegulation — 72. 1138 INTERSTATE TEANSPOBTATIOISr. gaged in operating said railroad or telegraph lines shall forth- with and henceforward, by and through their own respective corporate officers and employees, maintain and operate, for railroad. Governmental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the tele- graph franchises conferred upon them and obligations as- sumed by them under the acts making the grants as aforesaid. Sec. 2. That whenever any telegraph company which shaU have accepted the provisions of title sixty-five of the Revised Statutes shall extend its line to any station or office of a tele- graph line belonging to any one of said railroad or telegraph companies, referred to in the first section of this act, said telegraph company so extending its line shall have the right and said railroad or telegraph company shall allow the line of said telegraph company so extending its line to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph busi- ness between said companies ; and such railroad and telegraph companies, referred to in the first section of this act, shall so operate their respective telegraph lines as to afiiord equal fa- cilities to all, without discrimination in favor of or against any person, company, or corporation whatever, and shall receive, deliver, and exchange business with connecting telegraph lines on equal terms, and affording equal facilities, and without dis- crimination for or against any one of such connecting lines; and such exchange of business shall be on terms just and equit- able. Sec. 3. That if any such railroad or telegraph company referred to in the first section of this act, or company oper- ating such railroad or telegraph line shall refuse or fail, in whole or in part, to maintain, and operate a telegraph line as provided in this act and acts to which this is supplementary, for the use of the Government or the public, for commercial and other purposes, without discrimination, or shall refuse or fail to make or continue such arrangements for the inter- change of business with any connecting telegraph company, then any person, company, corporation, or connecting tele- graph company may apply for relief to the Interstate Com- merce Commission, whose duty it shall thereupon be, under such rules and regulations as said Commission may prescribe, to ascertain the facts, and determine and order what arrange- ment is proper to be made in the particular case, and the rtlilroad or telegraph company concerned shall abide by and perform such order ; and it shall be the duty of the Interstate APPENDICES. 1139 Commerce Commission, when such determination and order are made, to notify the parties concerned, and, if necessary, enforce the same by writ of mandamus in the courts of the United States, in the name of the United States, at the rela- tion of either of said Interstate Commerce Commissioners: Provided, That the said Commissioners may institute any in- quiry, upon their own motion, in the same manner and to the same effect as though complaint had been made. Sec. 4. That in order to secure and preserve to the United States the full value and benefit of its liens upon all the telegraph lines required to be constructed by and lawfully be- longing to said railroad and telegraph companies referred to in the first section of this act, and to have the same pos- sessed, used, and operated in conformity with the provisions of this act and of the several acts to which this act is supple- mentary, it is hereby made the duty of the Attorney-General of the United States, by proper proceedings, to prevent any unlawful interference with the rights and equities of the United States under this act, and under the acts hereinbefore mentioned, and under all acts of Congress relating to such railroads and telegraph lines, and to have legally ascertained and finally adjudicated all alleged rights of all persons and corporations whatever claiming in any manner any control or interest of any kind in any telegraph lines or property, or exclusive rights of way upon the lands of said railroad com- panies, or any of them, and to have all contracts and pro- visions of contracts set aside and annulled which have been unlawfully and beyond their powers entered into by said rail- road or telegraph companies, or any of them, with any other person, company, or corporation. See. 5. That any officer or agent of said railroad or tele- graph companies, or of any company operating the railroads and telegraph lines of said companies, who shall refuse or fail to operate the telegraph lines of said railroad or telegraph companies under his control, or which he is engaged in operat- ing, in the manner directed in this act and by the acts to which it is supplementary, or who shall refuse or fail, in such operation and use, to aiford and secure to the Government and the public equal facilities, or to secure to each of said con- necting telegraph lines equal advantages and facilities in the interchange of business, as herein provided for, without any discrimination whatever for or adverse to the telegraph line of any or either of said connecting companies, or shall refuse to abide by, or perform and carry out within a reasonable time the order or orders of the Interstate Commerce Commission, 1140 INTEESTATB TEANSPORTATION. shall in every such case of refusal or failure be guilty of a misdemeanor, and, on conviction thereof, shall in every such case be fined in a sum not exceeding one thousand dollars, and may be imprisoned not less than six months; and in every such case of refusal or failure the party aggrieved may not only cause the officer or agent guilty thereof to be prose- cuted under the provisions of this section, but may also bring an action for the damages sustained thereby against the com- pany whose officer or agent may be guilty thereof, in the cir- cuit or district court of the United States in any State or Terri- tory in which any portion of the road or telegraph line of said company may be situated ; and in case of suit process may be served upon any agent of the company found in such State or Territory, and such service shall be held by the court good and sufficient. Sec. 6. That it shall be the duty of each and every one of the aforesaid railroad and telegraph companies, within sixty days from and after the passage of this act, to file with the Interstate Commerce Commission copies of all contracts and agreements of every description existing between it and every other person or corporation whatsoever in reference to the ownership, possession, maintenance, control, use, or operation of any telegraph lines, or property over or upon its rights of way, and also a report describing with sufficient certainty the telegraph lines and property belonging to it, and the man- ner in which the same are being then used and operated by it, and the telegraph lines and property upon its right of way in which any other person or corporation claims to have a title or interest, and setting forth the grounds of such claim, and the manner in which the same are being then used and oper- ated; and it shall be the duty of each and every one of said railroad and telegraph companies annually hereafter to report to the Interstate Commerce Commission, with reasonable full- ness and certainty, the nature, extent, value, and condition of the telegraph lines and property then belonging to it, the gross earnings, and all expenses of maintenance, use, and operation thereof, and its relation and business with all connecting tele- graph companies during the preceding year, at such time and in such manner as may be required by a system of reports which said Commission shall prescribe ; and if any of said rail- road or telegraph companies shall refuse or fail to make such reports or any report as may be called for by said Commission, or refuse to submit its books and records for inspection, such neglect or refusal shall operate as a forfeiture, in each case of such neglect or refusal, of a sum not less than one thousand APPENDICES. 1141 dollars nor more than five thousand dollars, to be recovered by the Attorney-General of the United States, in the name and for the use and benefit of the United States ; and it shall be the duty of the Interstate Commerce Commission to inform the Attorney-General of all such cases of neglect or refusal, whose duty it shall be to proceed at once to judicially enforce the forfeitures hereinbefore provided. Sec. 7. That nothing in this act shall be construed to affect or impair the right of Congress, at any time hereafter, to alter, amend, or repeal the said acts hereinbefore mentioned; and this act shall be subject to alteration, amendment, or repeal as, in the opinion of Congress, justice or the public welfare may require; and nothing herein contained shall be held to deny, exclude, or impair any right or remedy in the premises now existing in the United States, or any authority that the Postmaster-General now has under title sixty-five of the Re- vised Statutes to fix rates, or, of the Government, to purchase lines as provided under said title, or to have its messages given precedence in transmission. Public No. 237, approved August 7, 1888 (25 Statutes at Large, 382). APPENDIX 14. The Safety Appliance Acts. Act of March 2, 1893. AN ACT To promote the safety of employees and travelers upon rail- roads by compelling common carriers, engaged In interstate com- merce, to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and fo» other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assemhled, That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier en- gaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operat- ing the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed with- out requiring brakemen to use the common hand brake for- that purpose. 1143 INTERSTATE TEANSPOETATION. Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any ear used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. Sec. 3. That when any person, firm, company, or corpora- tion engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act, it may lawfully re- fuse to receive from connecting lines of road or shippers any cars not equipped sufficiently, in accordance with the first sec- tion of this act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by this act. See. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Inter- state Commerce Commission, it shall be unlawful for any rail- road company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling ears. Sec. 5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the stan- dard height of drawbars for freight cars, measured perpen- dicular from the level of the tops of the rails to the centers of the drawbars, for each of the several gauges of railroads ip use in the United States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty and loaded ears. Upon their determination being certified to the Interstate Commerce Commission, said Com- mission shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the Com- mission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so, before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for. Sec. 6. {As amended April 1, 1896.) That any such common APPENDICES. 1143 carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district at- torneys information of any such violations as may come to its knowledge : Provided, That nothing in this act contained shall apply to trains composed of four-wheel cars or to trains composed of eight-wheel standard logging cars where the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in haul- ing such trains when such cars or locomotives are exclusively used for the transportation of logs. Sec. 7. That the Interstate Commerce Commission may from time to time upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of this act. See. 8. That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed there- by to have assumed the risk thereby occasioned, although con- tinuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge. Public No. 113, approved March 2, 1893 (27 Statutes at Large, 531), as amended by an act approved April 1, 1896 (29 Statutes at Large, 85). Note.— Prescribed standard height of drawbars: Standard-gauge roads, 34^2 inches; narrow-gauge roads, 26 inches; maximum varia- tion between loaded and empty cars, 3 Inches. Amendment of March 2, 1903. AN ACT To amend an act entitled "An act to promote the safety of employees and travelers upon railroads by compelling common car- riers, engaged in interstate commerce, to equip their cars with auto- matic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes," approved March 1144 INTEKSTATB TEANSPOETATION. second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six. Be it enacted iy the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions and requirements of the act entitled "An act to promote the safety of employees and travelers upon rail- roads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes," approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six, shall be held to apply to common carriers by railroads in the Territories and the Dis- trict of Columbia and shall apply in all eases, whether or not the couplers brought together are of the same kind, make, or type; and the provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the Territories and the District of Columbia, and to all other loco- motives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains, cars, and locomotives ex- empted by the provisions of section six of said act of March second, eighteen hun.dred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six, or which are used upon street railways. Sec. 2. That whenever, as provided in said act, any train is operated with power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train ; and all power-braked cars in such train which are asso- ciated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said act, the Interstate Commerce Com- mission may, from time to time, after full hearing, increase the minimum percentage of cars in- any train required to be operated with power or train brakes which must have their brakes used and operated as aforesaid ; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section. Sec. 3. That the provisions of this act shall not take effect until September first, nineteen hundred and three. Nothing APPENDICES. 1145 in this act shall be held or construed to relieve any common carrier, the Interstate Commerce Commission, or any United States district attorney from any of the provisions, powers, duties, liabilities, or requirements of said act of March sec- ond, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six; and all of the provisions, powers, duties, requirements, and liabilities of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six. shall, except as specifically amended by this act, apply to this act. Public, No. 133, approved March 2, 1903 (32 Statutes at Large, 948). Sundry civil act (appropriations) of June 28, 1902, author- izes Commission t© employ "inspectors to execute and enforce the requirements of the safety-appliance act." (32 Statutes at Large, 444). APPENDIX 15. Block-Signal Resolution. JOINT RESOLUTION Directing the Interstate Commerce Commission to investigate and report on block-signal systems and appliances for the automatic control of railway, trains. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assemhled. That the Interstate Commerce Commission be, and it is hereby, directed to investigate and report on the use of and neces- sity for block-signal systems and appliances for the automatic control of railway trains in the United States. For this pur- pose the Commission is authorized to employ persons who are familiar with the subject, and may use such of its own em- ployees as are necessary to make a thorough examination into the matter. In transmitting its report to the Congress the Commission shall recommend such legislation as to the Commission seems advisable. To carry. out and give effect to the provisions of this reso- lution the Commission shall have power to issue subpoena;s, administer oaths, examine witnesses, require the production of books and papers, and receive depositions taken before any proper officer in any State or Territory of the United States. Public Resolution No. 46, approved June 30, 1906 (34 Stat- utes at Large, 838). 1146 INTEESTATB TRANSPORTATIOlSr. APPENDIX 16. Interlocking Act. AN ACT To grant the right of way through the Oklahoma Territory and the Indian Territory to the Enid and Anadarko Railway Com- pany, and for other purposes. See. 18. That when in any case two or more railroads cross- ing each other at a common grade shall, by a system of inter- locking or automatic signals, or by any works or fixtures to be erected by them, render it safe for engines and trains to pass over such crossing without stopping, and such interlock- ing or automatic signals or works or fixtures shall be approved by the Interstate Commerce Commissioners, then, in that casej it is hereby made lawful for the engines and trains of such railroad or railroads to pass over such crossing without stop- ping, any law or the provisions of any law to the contrary notwithstanding; and when two or more railroads cross each other at a common grade, either of such roads may apply to the Interstate Commerce Commissioners for permission to in- troduce upon both of said railroads some system of interlock- ing or automatic signals or works or fixtures rendering it safe for engines and trains to pass over such crossings without stopping, and it shall be the duty of said Interstate Commerce Commissioners, if the system of works and fixtures which it is proposed to erect by said company are, in the opinion of the Commission, sufficient and proper, to grant such permis- sion. Sec. 19. That any railroad company which has obtained permission to introduce a system of interlocking or automatic- signals at its crossing at a common grade with any other railroad, as provided in the last section, may, after thirty days' notice, in writing, to such other railroad company, introduce and erect such interlocking or automatic signal or fixtures; and if such railroad company, after such notification, refuses to join with the railroad company giving notice in, the con- struction of such works or fixtures, it shall be lawful for said company to enter upon the right of way and tracks of such second company, in such manner as to not unnecessarily im- pede the operation of such road, and erect such works and fixtures, and may recover in any action at law from such second company one-half of the total cost of erecting and maintaining such interlocking or automatic signals or works or fixtures on both of said roads. APPENDICES. 1147 Public No. 26, approved February 28, 1902 (32 Statutes at Large, 50). APPENDIX 17. Accident-Reports Act. AN ACT Requiring common carriers engaged in interstate commerce to make full reports of all accidents to the Interstate Commerce Commission. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. It shall be the duty of the general manager, superintendent, or other proper officer of every common carrier engaged in interstate commerce by railroad to make to the Interstate Commerce -Commission, at its office in Washington, District of Columbia, a monthly report, under oath, of all collisions of trains or where any train or part of a train accidentally leaves the track, and of all accidents which may occur to its passengers or employees while in the service of such common carrier and actually on duty, which report shall state the nature and causes thereof, and the circumstances connected therewith. Sec. 2. That any common carrier failing to make such report within thirty days after the end of any month shall be deemed guilty of a misdemeanor and, upon conviction thereof by a court of competent jurisdiction, shall be punished by a fine of not more than one hundred dollars for each and every offense and for every day during which it shall fail to make such report after the time herein specified for making the same. Sec. 3. That neither said report nor any part thereof shall be admitted as evidence or used for any purpose against such railroad so making such report in any suit or action for dam- ages growing out of any matter mentioned in said report. See. 4. That the Interstate Commerce Commission is au- thorized to prescribe for such common carriers a method and form for making the reports in the foregoing section provided. Public No. 171, approved March 3, 1901 (31 Statutes at Large, 1446). APPENDIX 18. Coal and Oil Resolutions. Act of March 7, 1906. JOINT RESOLUTION Instructing the Interstate Commerce Commis- sion to make examinations into the subject of railroad discrimina- tions and monopolies in coal and oil, and report on the same from time to time. 1148 INTERSTATE TKANSPOETATION. Resolved ty the Senate and House of Representatives of the United States of America in Congress assembled. That the Interstate Commerce Commission be, and is hereby, au- thorized and instructed immediately to inquire, investigate, and report to Congress, or to the President when Congress is not in session, from' time to time as the investigation proceeds — First. Whether any common carriers by railroad, subject to the interstate-commerce act, or either of them, own or have any interest in, by means of stock ownership in other corpora- tions or otherwise, any of the coal or oil which they, or either of them, directly or through other companies which they con- trol or in which they have an interest, carry over their or any of their lines as common carriers, or in any manner own, con- trol, or have any interest in coal lands or properties or oil lands or properties. Second. Whether the officers of any of the carrier com- panies aforesaid, or any of them, or any person or persons charged with the duty of distributing cars or furnishing facili- ties to shippers are interested, either directly or indirectly, by means of stock ownership or otherwise in corporations or companies owning, operating, leasing, or otherwise interested in any coal mines, coal properties, or coal traffic, oil, oil prop- erties, or oil traffic over the railroads with which they or any of them are connected or by which they or any of them are employed. Third. Whether there is any contract, combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce among the several States, in which any common carrier engaged in the transportation of coal or oil is inter- ested, or to which it is a party; and whether any such com- mon carrier monopolizes or attempts to monopolize, or com- bines or conspires with any other carrier, company or com- panies, person or persons to monopolize any part of the trade or commerce in coal or oil, or traffic therein among the several States or with foreign nations, and whether or not, and if so, to what extent, such carriers, or any of them, limit or control, directly" or indirectly, the output of coal mines or the price of coal and oil fields or the price of oil. Fourth. If the Interstate Commerce Commission shall find that the facts or any of them set forth in the three paragraphs above do exist, then that it be further required to report as to the effect of such relationship, ownership, or interest in coal or coal properties and coal traffic, or oil, oil properties, or oil traffic aforesaid, or such contracts or combinations in form of trust or otherwise, or conspiracy or such monopoly or APPENDICES. 1149 attempt to monopolize or combine or conspire as aforesaid, upon such person or persons as may be engaged independent- ly of any other persons in mining coal or producing oil and shipping the same, or other products, who may desire to so en- gage, or upon the general public as consumers of such coal or oil. Fifth. That said Commission be also required to investigate and report the system of ear supply and distribution in effect upon the several railway lines engaged in the transportation of coal or oil as aforesaid, and whether said systems are fair and equitable, and whether the same are carried out fairly and properly; and whether said carriers, or any of them dis- criminate against shippers or parties wishing to become ship- pers over their several lines, either in the matter of distribu- tion of cars or in furnishing facilities or instrumentalities con- nected with receiving, forwarding, or carrying coal or oil as aforesaid. Sixth. That said Commission be also required to report as to what remedy it can suggest to cure the evils above set forth, if they exist. Seventh. That said Commission be also required to report any facts or conclusions which it may think pertinent to the general inquiry above set forth. Eighth. That said Commission be required to make this in- vestigation at its earliest possible convenience and to furnish the information above required from time to time and as soon as it can be done consistent with the performance of its public duty. Public Ees. No. 8, approved March 7, 1906 (34 Statutes at Large, 823). Amendment of March 21, 1906. JOINT RESOLUTION Amending joint resolution instructing the In- terstate Commerce Commission to make examinations into the subject of railroad discriminations and monopolies, and report on the same from time to time, approved March seventh, nineteen hundred and six. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That joint resolution instructing the Interstate Commerce Commis- sion to make examinations into the subject of railroad discrimi- nations and monopolies, and report on the same from time to time, approved March seventh, nineteen hundred and six, is hereby amended by adding the following thereto : Ninth. To enable the Commission to perform the duties re- 1150 INTERSTATE TKANSPOKTATION. quired and accomplish the purposes declared herein, the Com- mission shall have and exercise under this joint resolution the same power and authority to administer oaths, to subpoena and compel the attendance and testimony of witnesses and the pro- duction of documentary evidence, and to obtain full informa- tion, which said Commission now has under the act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, and acts amendatory thereof or supplementary thereto now in force or may have under any like statute taking effect hereafter. All the requirements, obligations, liabilities, and immunities imposed or conferred by said act to regulate commerce and by "An act in relation to testimony before the Interstate Commerce Commission in eases under or connected with an act entitled 'An act to regulate commerce' approved February fourth, eighteen hundred and eighty-seven, aiid amendments thereto," approved February eleventh, eighteen hundred and ninety-three, shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce docu- mentary evidence in pursuance of the authority herein con- ferred. Public Kes. No. 11, approved March 21, 1906 (34 Statutes at Large, 824). APPENDIX 19. Arbitration Act. AN ACT Concerning carriers engaged in interstate commerce and their employees. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to any common carrier or carriers and their ofBcers, agents, and employees, except masters of vessels and seamen, as defined in section forty-six hundred and twelve, Eevised Statutes of the United States, engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, for a continuous carriage or shipment, from one State or Terri- tory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation APPENDICES. 1151 operating a railroad, whetlier owned or operated under a con- tract, agreement, or lease; and the term "transportation" shall include all instrumentalities of shipment or carriage. The term "employees" as used in this act shall include all persons actually engaged in any capacity in train opera- tion or train service of any description, and notwithstanding that the ears upon or in which they are employed may be held and operated by the carrier under lease or other contract: Provided, however, That this act shall not be held to apply to employees of street railroads and shall apply only to em- ployees engaged in railroad train service. In every such case the carrier shall be responsible for the acts and defaults of such employees in the same manner and to the same extent as if said cars were owned by it and said employees directly employed by it, and any provisions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not affect the obligations of said carrier either to the public or to the private parties con- cerned. Sec. 2. That whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise be- tween a carrier subject to this act and the employees of such carrier, seriously interrupting or threatening to interrupt the business of said carrier, the chairman of the Interstate Com- merce Commission and the Commissioner of Labor shall, upon the request of either party to the controversy, with all prac- ticable expedition, put themselves in communication with the parties to such controversy, and shall use their best efforts, by mediation and conciliation, to amicably settle the same; and if such efforts shall be unsuccessful, shall at once en- deavor to bring about an arbitration of said controversy in accordance with the provisions of this act. Sec. 3. That whenever a controversy shall arise between a carrier subject to this act and the employees of such carrier which can not be settled by mediation and conciliation in the manner provided in the preceding section, said controversy may be submitted to the arbitration of a board of three per- sons, who shall be chosen in the manner following : One shall be named by the carrier or employer directly interested; the other shall be named by the labor organization to which the employees directly interested- belong, or, if they belong to more than one, by that one of them which specially represents employees of the same grade and class and engaged in serv- ices of the same nature as said employees so directly inter- ested: Provided, however. That when a controversy involves 1152 INTERSTATE TEANSPOETATION. and affects the interests of two or more classes and grades of employees belonging to different labor organizations, such arbitrator shall be agreed upon and designated by the con- current action of all such labor organizations; and in cases where the majority of such employees are not members of any labor organization, said employees may by a majority vote select a committee of their own number, which committee shall have the right to select the arbitrator on behalf of said em- ployees. The two thus chosen shall select the third commis- sioner of arbitration; but, in the event of their failure to name such arbitrator within five days after their first meet- ing, the third arbitrator shall be named by the commissioners named in the preceding section. A majority of said arbitra- tors shall be competent to make a valid and binding award under the provisions hereof. The submission shall be in writ- ing, shall be signed by the employer and by the labor organi- zation representing the employees, shall specify the time and place of meeting of said board of arbitration, shall state the questions to be decided, and shall contain appropriate pro- visions by which the respective parties shall stipulate, as follows : First. That the board of arbitration shall commence their hearings within ten days from the date of the appointment of the third arbitrator, and shall find and file their award, as provided in this section, within thirty days from the date of the appointment of the third arbitrator; and that pending the arbitration the status existing immediately prior to the dispute shall not be changed: Provided, That no employee shall be compelled to render personal service without his con- sent. Second. That the award and the papers and proceedings, including the testimony relating thereto certified under the hands of the arbitrators and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the circuit court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, un- less set aside for error of law apparent on the record. Third. That the respective parties to the award will each faithfully execute the same, and that the same may be spe- cifically enforced in equity so far as the powers of a court of equity permit : Provided, That no injunction or other legal process shall be issued which shall compel the performance by any laborer against his will of a contract for personal labor or service. APPENDICES. 1153 Fourth. That employees dissatisfied with the award shall not by reason of such dissatisfaction quit the service of the employer before the expiration of three months from and after the making of such award without giving thirty days' notice in writing of their intention so to quit. Nor shall the employer dissatisfied with such award dismiss any employee or employees on account of such dissatisfaction before the expiration of three months from and after the making of such award without giving thirty days' notice in writing of his in- tention so to discharge. Fifth. That said award shall continue in force as between the parties thereto for the period of one year after the same shall go into practical operation, and no new arbitration upon the same subject between the same employer and the same class of employees shall be had until the expiration of said one year if the award is not set aside as provided in section four. That as to individual employees not belonging to the labor organization or organizations which shall enter into the arbitration, the said arbitration and the award made therein shall not be binding, unless the said individual employees shall give assent in writing to become parties to said arbitration. Sec. 4. That the award being filed in the clerk's office of a circuit court of the United States, as hereinbefore provided, shall go into practical operation, and judgment shall be en- tered thereon accordingly at the expiration of ten days from such filing, unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the rec- ord, in which case said award shall go into practical operation and judgment be entered accordingly when such exceptions shall have been finally disposed of either by said circuit court or on appeal therefrom. At the expiration of ten days from the decision of the cir- cuit court upon exceptions taken to said award, as aforesaid, judgment shall be entered in accordance with said decision unless during said ten days either party shall appeal there- from to the circuit court of appeals. In such ease only such portion of the record shall be transmitted to the appellate court as is necessary to the proper understanding and con- sideration of the questions of law presented by said exceptions and to be decided. The determination of said circuit court of appeals upon said questions shall be final, and being certified by the clerk thereof to said circuit court, judgment pursuant thereto shall thereupon be entered by said circuit court. If exceptions to an award are finally sustained, judgment Eegulation — 73. 1154: INTERSTATE TEANSPOETATION. shall be entered setting aside the award. But in such ease the parties may agree upon a judgment to be entered disposing of the subject-matter of the controversy, which judgment when entered shall have the same force and effect as judg- ment entered upon an award. Sec. 5. That for the purposes of this act the arbitrators herein provided for, or either of them, shall have power to administer oaths and affirmations, sign subpoenas, require the attendance and testimony of witnesses, and the production of such books, papers, contracts, agreements, and documents material to a just determination of the matters under investi- gation as may be ordered by the court; and may invoke the aid of the United States courts to compel witnesses to attend and testify and to produce such books, papers, contracts, agreements and documents to the same extent and under the same conditions and penalties as is provided for in the act to regulate commerce, approved February fourth, eighteen hun- dred and eighty-seven, and the amendments thereto. Sec. 6. That every agreement of arbitration under this act shall be acknowledged by the parties before a notary public or clerk of a district or circuit court of the United States, and when so acknowledged a copy of the same shall be trans- mitted to the chairman of the Interstate Commerce Commis- sion, who shall file the same in the office of said Commission. Any agreement of arbitration which shall be entered into conforming to this act, except that it shall be executed by employees individually instead of by a labor organization as their representative, shall, when duly acknowledged as here- in provided, be transmitted to the chairman of the Interstate Commerce Commission, who shall cause a notice in writing to be served upon the arbitrators, fixing a time and place for a meeting of said board, which shall be within fifteen days from the execution of said agreement of arbitration : Provided, however. That the said chairman of the Interstate Commerce Commission shall decline to call a meeting of arbitrators under such agreement unless it be shown to bis satisfaction that the employees signing the submission represent or include a ma- jority of all employees in the service of the same employer and of the same grade and class, and that an award pursuant to said submission can justly be regarded as binding upon aU such employees. Sec. 7. That during the pendency of arbitration under this act it shall not be lawful for the employer, party to such ar- bitration, to discharge the employees, parties thereto, except for inefficiency, violation of law, or neglect of duty; nor for APPENDICES. 1155 the organization representing such employees to order, nor for the employees to unite in, aid, or abet, strikes against said employer ; nor, during a period of three months after an award under such an arbitration, for such employer to discharge any such employees, except for the causes aforesaid, without giv- ing thirty days' written notice of an intent so to discharge; nor for any of such employees, during a like period, to quit the service of said employer without just cause, without giv- ing to said employer thirty days' written notice of an intent so to do ; nor for such organization representing such em- ployees to order, counsel, or advise otherwise. Any violation of this section shall subject the ofEending party to liability for damages: Provided, That nothing herein contained shall be construed to prevent any employer, party to such arbitra- tion, from reducing the number of its or his employees when- ever in its' or his judgment business necessities require such reduction. Sec. 8. That in every incorporation under the provisions of chapter five hundred and sixty-seven of the United States Statutes of eighteen hundred and eighty-five and eighteen hundred and eighty-six it must be provided in the articles of incorporation and in the constitution, rules, and by-laws that a member shall cease to be such by participating in or by in- stigating force or violence against persons or property during strikes, lockouts, or boycotts, pr by seeking to prevent others from working through violence, threats, or intimidations. Members of such incorporations shall not be personally liable for the acts, debts, or obligations of the corporations, nor shall such corporations be liable for the acts of members or others in violation of law;, and such corporations may appear by designated representatives before the board created by this act, or in any suits or proceedings for or against such corporations or their members in any of the Federal courts. Sec. 9. That whenever receivers appointed by Federal courts are in the possession and control of railroads, the employees upon such railroads shall have the right to be heard in such courts upon all questions affecting the terms and conditions of their employment, through the officers and representatives of their associations, whether incorporated or unincorporated, and no reduction of wages shall be made by such receivers without the authority of the court therefor upon notice to such employees, said notice to be not less than twenty days before the hearing upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway operated by such receiver or receivers. 1156 INTERSTATE TEANSPOKTATION. Sec. 10. That any employer subject to the provisions of this act and any ofBcer, agent, or receiver of such employer who shall require any employee, or any person seeking em- ployment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or re- main a member of any labor corporation, association, or or- ganization; or shall threaten any employee with loss of em- ployment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, asso- ciation, or organization; or who shall require any employee or any person seeking employment, as a condition of such em- ployment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release' such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the piroportion of the benefit arising from the employer's eon; tribution to such fund; or who shall, after having discharged', an employee, attempt or conspire to prevent such employee from obtaining emplojonent, or who shall, after the quitting, of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars. See. 11. That each member of said board of arbitration shall receive a compensation of ten dollars per day for the time he is actually employed, and his traveling and other necessary expenses; and a sum of money sufficient to pay the same, together with the traveling and other necessary and proper expenses of any conciliation or arbitration had here- under, not to exceed ten thousand dollars in any one year, to be approved by the chairman of the Interstate Commerce Commission and audited by the proper accounting officers of the Treasury, is hereby appropriated for the fiscal years end- ing June thirtieth, eighteen hundred and ninety-eight, and June thirtieth, eighteen hundred and ninety-nine, out of any money in the Treasury not otherwise appropriated. Sec. 12. That the act to create boards of arbitration or commission for settling controversies and differences between railroad corporations and other common carriers engaged in interstate or territorial transportation of property or persons APPENDICES. 1157 and their employees, approved October first, eighteen hun- dred and eighty-eight, is hereby repealed. Public No. 115, approved June 1, 1898 (30 Statutes at Large, 424). APPENDIX 20. Medal of Honor Act. AN ACT To promote the security of travel upon railroads engaged In interstate commerce, and to encourage the saving of life. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the President of the United States be, and he is hereby, au- thorized to cause to be prepared bronze medals of honor, with suitable emblematic devices, which shall be bestowed upon any persons who shall hereafter, by extreme daring, endanger their own lives in saving, or endeavoring to save lives, from any wreck, disaster, or grave accident, or in preventing or endeavoring to prevent such wreck, disaster, or grave acci- dent, upon any railroad within the United States engaged in interstate commerce : Provided, That no award of said medal shall be made to any person until sufficient evidence of his deserving shall have been furnished and placed on file, under such regulations as may be prescribed by the President of the United States. Sec. 2. That the President of the United States be, and he is hereby, authorized to issue to any person to whom a medal of honor may be awarded under the provisions of this Act a rosette or knot, to be worn in lieu of the medal, and a rib- bon to be worn with the medal; said rosette or knot and rib- bon to be each of a pattern to be prescribed by the President of the United States : Provided, That whenever a ribbon issued under the provisions of this Act shall have been lost, de- stroyed, or rendered unfit for use without fault or neglect on the part of the person to whom it was issued, a new ribbon shall be issued to such person without charge therefor. Sec. 3. That the appropriations for the enforcement and execution of the provisions of the Acts to promote the safety of employees and travelers upon railroads are hereby made available for carrying out the provisions of this Act. Public, No. 98, approved February 23, 1905 (33 Statutes at Large, 743). 1158 INTEESTATE TEANSPOETATION. APPENDIX 21. Regulations Governing the Award of Life-Saving Medals under the Medal of Honor Act. Made by the President of the United States on March 29, 1905. 1. Applications for medals under this act should be ad- dressed to and filed with the Interstate Commerce Commis- sion, at the city of Washington, D. C. Satisfactory evidence of the facts upon which the application is based must be filed in each case. This evidence should be in the form of affidavits made by eyewitnesses, of good repute and standing, testifying of their own knowledge. The opinion of witnesses that the person for whom an award is sought acted with extreme dar- ing and endangered his life is not sufficient, but the affidavits must set forth the facts in detail and show clearly in what manner and to what extent life was endangered and extreme daring exhibited. The railroad upon which the incident oc- curred, the date, time of day, condition of the weather, the names of all persons present when practicable, and other per- tinent circumstances should be stated. The affidavits should be made before an officer duly authorized to administer oaths and be accompanied by the certificate of some United States official of the district in which the affiants reside, such as a judge or clerk of United States court, district attorney, or postmaster, to the effect that the affiants are reputable and credible persons. If the affidavits are taken before an offi- cer without an official seal his official character must be certi- fied by the proper officers of a court of record under the seal thereof. 2. Applications for medals, together with all affidavits and other evidence received in connection therewith, shall be referred to a committee of five persons, consisting of the sec- retary of the Commission, the chief inspector of safety ap- pliances, two inspectors of safety appliances designated by the Commission, and the clerk of the safety-appliance exam- ining board, who shall act as clerk of the committee. This committee shall carefully consider each application presented and, after thoroughly weighing the evidence, shall prepare an abstract or brief covering the case and file the same, to- gether with the committee's recommendation, with the Com- mission, which brief and recommendation shall be transmitted by the Commission to the President for his approval. The committee may, with the approval of the Commission, direct any inspector of safety appliances in the employ of the Com- mission to proceed to the locality where the service was per- APPENDICES. 1159 formed for which a medal is claimed, and make a personal investigation and report upon the facts of the case, which re- port shall be filed and made a part of the evidence considered by the committee. 3. Upon final approval of the committee's recommendation by the President the Commission shall take such measures to carry the recommendation into effect as the President may direct. 4. The Commission shall cause designs to be prepared for the medal, rosette, and ribbon provided for by the act, which designs shall be submitted to the President for his approval. APPENDIX 22. Lake Erie and Ohio River Ship Canal Act. AN ACT To incorporate the Lake Erie and Ohio River Ship Canal, to define the powers thereof, and to facilitate interstate commerce. Sec. 17. That the said canals shall be open to the use and navigation of all suitable and proper vessels or other water craft, by whomsoever owned or operated, upon fair and equal terms, conditions, rates, tolls, and charges; and the said com- pany may demand, take, and recover for its own proper use, for all persons and things of whatsoever description trans- ported upon the said canals, feeders, and other works, or in vessels and craft using the same, just and reasonable charges, rates, and tolls; but all such charges, rates, and tolls shall be equal to all persons, vessels, and goods under certain classifi- cations to be established by the company and approved by the Interstate Commerce Commission; and no rebate, reduction, drawback, or discrimination of any sort on such charges, rates, and tolls shall ever be made directly or indirectly. And the said charges, rates, and tolls for the ensuing year shall be fixed, published, and posted on or in every place where they are to be collected, on or before the fifteenth day of February of each year, and shall not be changed except after thirty days' public notice, which notice shall plainly state the changes proposed to be made in the charges, rates, and tolls then in force and the time when the changed charges, rates, and tolls will go into effect; and the proposed changes shall be shown by printing new schedules or shall be plainly indicated upon the schedules. in force at the time and kept open to public inspection: Provided, That the Interstate Commerce Commis- sion may, in its discretion and for good cause shown, allow changes upon less notice than herein specified or modify the 1160 INTERSTATE TEANSPOETATION. foregoing requirements in respect to publishing and posting of such schedules, either in particular instances or by a gen- eral order applicable to special or peculiar circumstances or conditions. ^ TT ^ tP ^ -Tf Tr Public No. 402, approved June 30, 1906 (34 Statutes at Large, 809). APPENDIX 23. Hours of Service Act. AN ACT To promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this Act shall apply to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia or any Territory of the United States, or from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any train. See. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours, and when- ever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be re- lieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be re- quired or permitted to continue or again go on duty without having at least eight consecutive hours off duty: Provided, That no operator, train dispatcher, or other employee who by APPENDICES. 1161 the use of the telegraph or telephone dispatches, reports, trans- mits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or re- main on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and sta- tions 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 : Provided further. The Interstate Commerce Commission may after full hearing in a particular ease and for good cause shown extend the period within which a com- mon carrier shall comply with the provisions of this proviso as to such case. Sec. 3. That any such common carrier, or any oiScer, or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the second section here- of, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by the United States district attor- ney in the district court of the United States having jurisdic- tion in the locality where such violation shall have been com- mitted; and it shall be the duty of such district attorney to bring such suits upon satisfactory information being lodged with him; but no such suit shall be brought after the expira- tion of one year from the date of such violation ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. In all prosecu- tions under this Act the common carrier shall be deemed to have had knowledge of all acts of all its officers and agents : Provided, 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 em- ployee at the time said employee left a terminal, and which could not have been foreseen : Provided further. That the pro- visions of this Act shall not apply to the crews of wrecking or relief trains. Sec. 4. It shall be the duty of the Interstate Conimerce Commission to execute and enforce the provisions of this Act, and all powers granted to the Interstate Commerce Commis- sion are hereby extended to it in the execution of this Act. 1162 INTERSTATE TRANSPORTATION. Sec. 5. That this Act shall take effect and be in force one year after its passage. Public No. 274, approved March 4, 1907, 11.50 a. m. (34 Statutes at Large, 1415). APPENDIX 24. Ash Pan Act. AN ACT To promote tlie safety of employees on railroads. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That on and after the first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier engaged in interstate or foreign commerce by railroad to use any loco- motive in moving interstate or foreign traffic, not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employee going under such locomotive. See. 2. That on and after the first day of January, nine- teen hundred and ten, it shall be unlawful for any common carrier by railroad in any Territory of the United States or the District of Columbia to use any locomotive not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employee going under such loco- motive. See. 3. That any such common carrier using any locomotive in violation of any of the provisions of this Act shall be liable to a penalty of two hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the' district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Com- merce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowl- edge. Sec. 4. That it shall be the duty of the Interstate Com- merce Commission to enforce the provisions of this Act, and all powers heretofore granted to said Commission are hereby extended to it for the purpose of the enforcement of this Act. Sec. 5. That the term "common carrier" as used in this Act shall include the receiver or receivers or other persons APPENDICES. 1163 or corporations charged with the duty of the management and operation of the business of a common carrier Sec. 6. That nothing in this Act contained shall apply to any locomotive upon which, by reason of the use of oil, elec- tricity, or other such agency, an ash pan is not necessary. Public No. 165, approved May 30, 1908 (35 Statutes at Large, 476). APPENDIX 25. Transportation of Explosives Act. Act of March 4, 1909, effective January 1, 1910. By an act entitled "An act to codify, revise, and amend the penal laws of the United States," approved March 4, 1909, to take effect and be in force on and after the first day of January, 1910, the act entitled "An act to promote the safe transportation in interstate commerce of explosives and other dangerous articles, and to provide penalties for its violation," approved May 30, 1908, is repealed, and the following sections of said act to codify, revise, and amend the penal laws of the United States are substituted therefor : Sec. 232. It shall be unlawful to transport, carry, or con- vey, any dynamite, gunpowder, or other explosive, between a place in a foreign country and a place within or subject to the jurisdiction of the United States, or between a place in any State, Territory, or District of the United States, or place . noncontiguous to but subject to the jurisdiction thereof, and a place in any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdic- tion thereof, on any vessel or vehicle of any description oper- ated by a common carrier, which vessel or vehicle is carrying passengers for hire : Provided, That it shall be lawful to trans- port on any such vessel or vehicle small arms, ammunition in any quantity, and such fuses, torpedoes, rockets, or other sig- nal devices, as may be essential to promote safety in opera- tion, and properly packed and marked samples of explosives for laboratory examination, not exceeding a net weight of one-half pound each, and not exceeding twenty samples at one time in a single vessel or vehicle; but such samples shall not be carried in that part of a vessel or vehicle which is intended for the transportation of passengers for hire : Provided further. That nothing in this section shall be construed to prevent the transportation of military or naval forces with their accom- panying munitions of war on passenger equipment vessels or vehicles. Sec. 233. The Interstate Commerce Commission shall form- 1164 INTERSTATE TEANSPOKTATION. ulate regulations for the safe transportation of explosives, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives by land. Said Commission, of its own motion, or upon applica- tion made by any interested party, may make changes or modifications in such regulations, made desirable by new in- formation or altered conditions. Such regulations shall be in accord with the best known practicable means for securing safety in transit, covering the packing, marking, loading, handling while in transit, and the precautions necessary to determine whether the material when offered is in proper con- dition to transport. Such regulations, as well as all changes or modifications thereof, shall take effect ninetj^ days after their formulation and publication by said Commission and shall be in effect until reversed, set aside, or modified. Sec. 234. It shall be unlawful to transport, carry, or convey, liquid nitroglycerine, fulminate in bulk in dry country and other like explosive, between a place in a foreign country and a place within or subject to the jurisdiction of the United States, or between place in one State, Territory, or District of the United States, or a place noncontiguous to but subject to the jurisdiction thereof, and a place in any other State, Ter- ritory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, on any vessel or vehicle of any description operated by a common carrier in the transportation of passengers or articles of commerce by land or water. Sec. 235. Every package containing explosives or other dangerous articles when .presented to a common carrier for shipment shall have plainly marked on the outside thereof the contents thereof; and it shall be unlawful for any person to deliver, or cause to be delivered, to any common carrier engaged in interstate or foreign commerce by land or water, for interstate or foreign transportation, or to carry upon any vessel or vehicle engaged in interstate or foreign trans- portation, any explosive, or other dangerous article, under any false or deceptive marking, description, invoice, shipping order, or other declaration, or without informing the agent of such carrier of the true character thereof, at or before the time such delivery or carriage is made. Whoever shall know- ingly violate, or cause to be violated, any provision of this section, or of the three sections last preceding, or any regu- lation made by the Interstate Commerce Commission in pur- suance thereof, shall be fined not more than two thousand dollars, or imprisoned not more than eighteen months, or both. APPENDICES. 1165 Sec. 236. "When the death or bodily injury of any person is caused by the explosion of any article named in the four sec- tions last preceding, while the same is being placed upon any vessel or vehicle to be transported in violation thereof, or while the same is being so transported, or while the same is being removed from such vessel or vehicle, the person know- ingly placing, or aiding' or permitting the placing, of such articles upon any such vessel or vehicle, to be so transported, shall be imprisoned not more than ten years. APPENDIX 26. District of Columbia Street Railways Act. AN ACT Authorizing certain extensions to be made of the lines of the Anacostia and Potomac River Railroad Company, the Washing- ton Railway and Electric Company, the City and Suburban Rail- way of Washington, and the Capital Traction Company, in the District of Columbia, and for other purposes. Sec. 12. That existing transfer arrangements between the Washington Railway and Electric Company and the Metro- politan Coach Company, a corporation of the District of Columbia, shall not be terminated, except by authority of Congress ; and unless said Metropolitan Coach Company shall, within one year after the passage of this Act, substitute motor vehicles to be approved by the Commissioners of the District of Columbia, for the herdics now used by it, its right to operate its line shall cease and determine : Provided further, That all transfers issued by the Metropolitan Coach Company shall be properly dated and punched as to time limit as pro- vided by rules and regulations to be made, altered, and amended from time to time by the Interstate Commerce Com- mission, and that unless said transfers are so dated and punched the Washington Railway and Electric Company shall not be required to receive them. ^ TT * TT TT * * Sec. 16. That every street railroad company or corporation owning, controlling, leasing or operating one or more street railroads within the District of Columbia shall on each and all of its railroads supply and operate a sufficient number of ears, clean, sanitary, in good repair, with proper and safe power, equipment, appliances and service, comfortable and convenient, and so operate the same as to give expeditious passage, not to exceed fifteen miles per hour within the city 1166 INTERSTATE TRANSPORTATION. limits or twenty miles per hour in the suburbs, to all persons desirous of the use of said cars, without crowding said cars. The Interstate Commerce Commission is hereby given power to require and compel obedience to all of the provisions of this section, and to make, alter, amend and enforce all needfrd rules and regulations to secure said obedience; and said Com- mission is given power to make all such orders and regulations necessary to the exercise of the powers herein granted to it as may be reasonable and proper; and such railroad com- panies or corporations, their officers and employees, are hereby required to obey all the provisions of this section, and such regulations and orders as may be made by said Commission. Any such company or corporation, or its officers or employees, violating any provision of this section, or any of the said orders or regulations made by said Commission, or permitting such violation, shall be punished by a fine of not more than one thousand dollars. And each day of failure or neglect on the part of such company or corporation, its officers or em- ployees, to obey each and all of the provisions and require- ments of this section, or the orders and regulations of the Commission made thereunder, shall be regarded as a separate offense. Sec. 17. That prosecutions for violations of any of the pro- visions of this Act shall be on information of the Interstate Commerce Commission filed in the police court by or on behalf of the Commission. Public No. 134, approved May 23, 1908 (35 Statutes at Large, 246). APPENDIX 27. AN ACT Making appropriations to provide for the expenses of the government of the District of Columhia for the fiscal year ending. June tnirtieth, nineteen hundred and ten, and for other purposes. On and after the passage of this Act every corporation en- gaged in the manufacture and sale of gas or electricity in the District of Columbia shall open and keep a set of books in manner and form prescribed by the Interstate Commerce Commission. W W ^ ^ T>' TP TF Public No. 303, approved March 3, 1909 (36 Statutes at Large, ). INDEX. [References are to sections and paragraphs."] . A ABBREVIATIONS, explanation of, in tariffs, § 471, ^ M. in express tariffs, § 526 ^ G. in passenger tariffs, § 639, ^ I. ABSORPTION RULE, effect of subsequent cancellation on accrued claims, § 429. ACCESS, of commission to accounts and records of carrier, § 697. ACCIDENT REPORTS, may not be used against carrier, § 709, H C. operating division of commission, in charge of, § 14, ^ A. penalty for failure to file, § 765. to interstate commerce commission, § 709. ACCOUNTS, access of commission to, § 697. bureau of, under commission, § 14, ^ C. carriers cannot keep other accounts than those prescribed by commission, § 698. commission may employ special examiners to inspect, § 699. destruction of, § 703. punishment for failure of carrier to keep prescribed accounts or allow inspection, § 700. of examiner divulging, § 702. for keeping other than those prescribed, § 767. for falsification or mutilation, § 701, 767. power of commission to prescribe forms, § 696. uniform system of keeping, § 695. ACKNOWLEDGMENTS, to reports, by whom taken, § 707. ACT OF GOD, employes delayed in service under hours of service law, § 729. 1167 1168 GENERAL INDEX. [References are to sections and paragraphs.] ADDRESS, of commission, § 8. ADJOURNMENTS, rules of commission as to, § 796. ADOPTION, of tariffs, § 640, ^fU L, M, § 734, Iff M, N, O. ADVANCEMENTS, by shipper on switch track, § SIO. ADVANTAGES, See DiscEiMiNATios, Rebates. all not unlawful, § 366. ADVERTISING, transportation in exchange for, § 308, f B. AFFIRMATIONS, commission may administer, § 780. AGENTS, See Joint Agents. authorizations to be filed, § 479, f E, § 544, U D. authorized to cancel express tariffs, § 533, ^ B. issue tariffs, classifications, supplements &c., § 544. freight tariffs, &c., § 479. passenger tariffs, § 642. carrier bound by representations of, § 170. form of appointment of to file tariffs, § 544, If B, § 642, T[ B. passes to agents in charge of freight shipm^ents, § 602. regulation of authority of tariff agent, § 642, fl D. revocation of agents authority to file tariffs, § 544, f D. special in employ of commission, § 13. use of I. G. C. serial number by, § 642, ^ F. AGREEMENTS, See Contracts, Conteacts between Careiebs, Pooling Contracts. ALLOWANCES, by carriers for services rendered by owners of property trans- ported, § 332-341. shrinkage in weight, § 338. to shippers for service or instrumentalities as rebating, § 399. must be shown In published tariffs, § 341, 463, ^ M. to tap lines, § 344. as medium of rebating, § 398. GENERAL INDEX. H69 [References are to sections and paragraphs.] ALLOWANCES— Cojiitmterf. to terminal railroads as method of rebating, § 397. use of private cars, § 336. use of private track of shipper as medium of rebating, § 400. weight of raclcs and blocks on flat cars, § 335. AMENDMENT, request for permission to amend tariffs, § 462, jf D. rules of commission as to, § 796. tariffs generally, § 475. express tariffs, § 534. express tariffs on less than statutory notice, § 520, ^ D. passenger tariffs, § 640. AMMUNITION, regulations for transportation of, § 457. ANNUAL REPORTS, See REa?0BTS. ANSWERS, form of, § 796. rules of commission as to, § 796. APPEARANCE, of parties before commission, 785. APPLES, weight of standard packages, § 156, f D. APPLICATION, switch connection, § 351. ARBITRATION, commission as a board of, § 795. ARBITRATRIES, defined, § 80, f E. ARRANGEMENTS, See Contracts between Caeeiebs. ASH PAN ACT, penalty for violation of, § 774. ASSIGNMENT, of overcharge claims, § 436. ASTRAY SHIPMENTS, demurrage charges on, § 299. free and reduced rate, transportation for, §322. Eegulation — 74. 11 70 GENEEAL INDEX. [References are to sections and paragraphs.'] ATTENDANCE, of witnesses before commission, § 787. ATTORNEYS, See CoTJNSBL. families of not entitled to passes, § 599, f C. of law division under commerce commission, § 14, ^ E. AUTHORIZATION, See Agents. agents to issue express tariffs, § 544. B BAGGAGE, free and reduced rate transportation, § 320. of passengers, § 562. rules governing to be included in passenger tariffis, § 639, f N. issuance of passes to agents and employees of, § 617, ^ C. BARRELS, difference In rates between flour in barrels and sacks, § 368, ^ P. BASING POINTS, carrier may specify, in constructing combination rate, § 89 ^ D. system in making rates, § 80, f I. BASING TARIFFS, defined, § 467, jf C, § 635, ^ D.- form of, § 637, jf A. for express companies, § 527. BEES, passes to caretakers of, § 602, ][ E. BELT RAILROADS, jurisdiction of commission over, § 37. BILLS OF LADING, allowance of rebate does not vitiate, § 127. billing shipment at net weights, § 152. carrier required to issue, § 125. contracts for transportation at variance with published rates, §135. covering export and import traffic, § 132. effect of acceptance by state railroad of interstate shipment under through rate, § 33 f C. GENERAL INDEX. 1171 [References are to sections and paragraphs.] BILLS OF hADma— Continued. Interstate commerce commission without power to prescribe form, § 130. manner of contracting for transportation, § 134. misleading and unreasonable rules and regulations in, § 128. part of bill relating to rate, § 126. provisions as to marine insurance, § 129. routing instructions should be shown in, § 193. through bills, § 133. uniform bills, § 131. BLANKET RATES, reasonableness of, § 86, ^ A, A. BONDS, indemnity against loss in establishment of through route, § 188. BULK, as element in fixing rate, § 82, f G. "BUNCHING" CARS, effect on demurrage charges, § 304, ^ D. BRIDGE COMPANIES, jurisdiction of commission over, §§ 39, 55. BRIEFS, rules of commission as to, § 796. BUREAU OF STATISTICS AND 'ACCOUNTS, under commission, § 14, f C. C CANADIAN RATES, car service charges on traffic from and to Canada, § 302. for passengers, § 559. CANCELLATION, concurrence does not confer authority to cancel, § 641, If C. does not impair shippers rights accruing previous to cancella- tion, § 477, If H. effect of joint agents failure to cancel old rates, § 477, f G. express tariffs, § 533. must specify, § 535, If A. must be made by authorized agent or by carrier issuing cancelled tariff, § 641, If B. must be set out on title page of express tariffs, § 525, f B. 1173 GENERAL INDEX. [References are to sections and paragraphs. '\ CANCELLATION— OoniMwed. notice must be by supplement, § 477, U B, § 642, f D. passenger tariffs, § 641. supplements should specify, § 477, ^ B, § 641, If A. tariffs in whole or part, § 477. what notice must contain, § 477, f F. CARETAKERS, passes for, § 602. CAR LIGHTING COMPANIES, passes for testers in employ, of, § 621. CARLOAD LOTS, reasonableness of rates for, § 86, f B. CAR PER DIEM CHARGE, made for use of equipments, § 682. rate of, § 683. strictly a rental, § 684. legislation on subject recommended by commission, § 685. CARRIERS, See Caeeiees by Watee, Cabriees of Pbeight, Caeeiees or Passengbes, Initial Caeeiees, etc. as corporation liable for violation of interstate commerce act, §760, 761. bound by acts and representations of agents, § 170. bound to afford equal facilities, § 367. by water, § 494. whether subject to regulation by commission, § 53. concurrence in establishment of through route, § 182. defined, § 26. duty to establish through routes, § 183. duty where no specific routing instructions are given, § 197. initial carrier may have recourse upon carrier responsible for loss or damage, § 435, ^ C. jurisdiction of commission over, § 26, f 49. over successors and purchasers pendente lite, § 48. mistake in responding to inquiry as to route, § 194. nature of organization not important on question of juris- diction, § 49. receivers of railroad companies are, § 47. state common carriers not subject to regulation by commis- sion, § 52. statute designating those subject to commission, §§ 26, 27. GENERAL INDEX. 1173 [References are to sections and paragraphs.] CARRIERS BY WATER, change of rate while shipment on ocean, § 447. circulars announcing compliance with orders of court as pas- senger tariffs, § 651. division of rate to hoat line controlled by shipper, § 345. notation on title page of passenger tariffs as to rates, § 647, If A. parties to pooling contracts, § 689, ^f A. right of land carrier to advance charges to, § 514. tariffs of, 506. of ocean carriers, § 506, f B. CARRIERS OF FREIGHT, See Damages, Explosives, Feee and Reduced Rate Tbanspobtation, Fbbight, Rates. collection by carrier of less than carload shipments at point of origin, §271. damages for unloading at depot instead of siding, § 434. damages for detention until published rate paid, § 424. demurrage, § 276. distribution of consignments in storage, § 269. interchange of traffic between connecting carrier, §§ 644-671. not required to deliver freight to points on line of another carrier, § 270. not required to give use of track to traffic of competing road, §268. not required to telegraph consignor on refusal of consignee, § 279. passengers on freight trains as discrimination, § 386. passes for caretakers, § 602. rules governing loading and unloading of freight, § 267. shippers should meet regulations governing reception and delivery of freight, § 266. storage charges, § 275. transfer charges, § 274. CARRIERS OP PASSENGERS, See Passengers, Passenger Fabes, Passengeb Tabiffs and Schedtiles, Passes, Tickets. damages for wrongful deprivation of return coupon, § 432. • discretion in granting excursion rates, § 382, If J. discrimination as between round trip and one way fares, § 382, fC. I as to rights of terminus of line, § 385. ; between white and colored, § 384. I in fares for transportation, § 382. 1174 GENEEAL INDEX. [References are to sections and paragraphs.} CARRIERS OF PASSEt^GERS— Continued. in party rates, § 382, f G. diversion of traffic in case of necessity, § 389. exaction of additional sum for failure to purchase ticket, § 382, TIB. issuance of mileage excursion and commutation tickets, option- al, § 563, f C. on freight trains as discrimination, § 386. refund to children as rebate, § 406. sale of cut rate tickets, § 383. special rates on immigration tariff, § 382, f D. through passenger routes, § 184, ^ B. transportation of explosives on passenger trains, §§ 450-452. CARS, See Duty to Fubnish Cabs, EQtnPMENT. duty of carrier to furnish proper capacity cars, § 138. right of carrier to refuse to haul cars of other carriers, § 167, f H. responsibility of carrier for equipment secured from foreign sources, § 167, \[ J. CAR SERVICE, See DEMTJBBAeE. at terminals, § 276. charges for must be shown in schedules, § 463. CAR SERVICE ASSOCIATION, uniform rules for demurrage, § 305. CAR SHORTAGE, See Duty to Fuknish Caes. as cEluse for failure of carrier to furnish cars as rapidly as ordered, § 167, f C. causes for, § 177. jurisdiction of commission over, § 175, ^ E. reciprocal demurrage law as remedy for, § 179, fl B. relation between and insufficiency of other equipment, § 178. CASUALTIES, See Act of God. CERTIFICATES, for cars intended to transport explosives, § 457. t CERTIFIED COPIES, of reports as prima facie evidence, § 715. GENERAL INDEX. 1175 [References are to sections and paragraphs.] CHAIRMAN, of commission, § 4. CHARGES, See Rates, Faees. CHARITIES, free and reduced rate transportation for, § 318. passes to agents in charge of property transported for, § 602, ^ H. CHARITY WORKERS, free reduced rate transportation to, § 604. CHARTERED TRAINS, for use of passengers, § 567. CHINESE, reduced rate, transportation for deportation of, § 619. CIRCULARS, announcing compliance with orders of court, §§ 499, 542. CIRCUSES, tariffs covering transportation of, § 462, ^ J. CITIES, establishment of through routes to and from shipping commun- ities in large cities, § 187. CIVIL RIGHTS, discrimination between white and colored passengers, § 384. CLAIMS, See Damages, Reparation. adjustment of, § 439. on presentation, § 439. assignability of overcharge, § 436. division of, under commission, § 14, f D. duty of delivering carrier to investigate before paying, § 438. CLASSIFICATION OF FREIGHT, agents authorized to issue and file, §§ 479, 544. as means of increasing revenue, § 69. classification as evidence. § 796. change of, § 68. character of package as element, § 62, f J. committees for, § 73. competition as factor, § 62, f K. 1176 GENERAL INDEX. [References are to sections and pa/ragraphs.] CLASSIFICATION OF FREIGHT— Continued. comparison of different classifications, § 67. cost of production as element, § 62, ^ A. cost of service as element, § 62, fl G. difference between carload and less than carload lots, § 62, ^|[ H and I. discrimination, §§ 70, 375. does not depend upon prosperity of shipper, § 64. effective dates of. § 476. elements to be considered in fixing, § 62. exact classification impossible, § 63. filing for express companies, § 517. filing those issued by joint agent, § 479, ^ O. by joint express agent, § 544, f L. filing with commission, § 459. form of appointment of agent to file, § 479, ^ B. for express companies, § 544, ][ B. high explosives, § 72. kind of package used, § 65. jurisdiction of commerce commission over, § 77. matter largely one of discretion, § 62, ^ A. method recognized by commerce act, § 76. most practical method of determining rates, § 59. necessity for accuracy, § 63. official classification territory, § 61, f B. penalties for false classifications by carrier or shipper, §§ 78, 79. presumption of reasonableness from long establishment of classification, § 66. publication, posting and filing classifications, § 75. relation to freight tariffs, § 60. right of commission to consider reasonableness of new classification throughout new territory, § 77, ^f B. southern classification territory, § 61, f C. tariff not governed by except when so specified, § 472. territorial division of country for classification purposes, § 61. uniformity, § 74. use of technical terms, § 71. value of articles as element, § 62, f D. value of service as against cost of service, § 62, ^ B. volume of traffic as element, § 62, f F. western classification territory, § 61, f D. CLASS RATES, defined, § 80, ^ G. GENERAL INDEX. 1171[ [References are to sections and paragraphs.] CLERGYMEN, families of riot entitled to passes, § 604, f B. free and reduced rate transportation to, § 604. COAL,, difference in rates dependent on method of loading cars, § 368, HH. not entitled to reduced rates, § 326. COAL CARS, duty to furnish, § 162, fl C. jurisdiction of commission to order mine ratings, § 175, yj C. refusal of cars for loading cars from wagon, § 169, f E. rules for rating at mine, § 169, jf^ H, I. COAL MINES, See Coal Caes. C. O. D., refusal of express company to extend services as discrimina- tion, § 380. COLORED PASSENGERS, discrimination between and white passengers, § 384. COMMERCE, See Interstate Commebce. between states, § 28. COMMERCIAL TRAVELERS, reduced rate transportation to, § 613. COMMISSION, See Inteestate Commebce Commission. COMMISSIONS, grant of as medium of rebating, § 402. import traffic, § 402, 1[ B. COMMITTEES, classification of freight, § 76. COMMODITIES CLAUSE, constitutionality and interpretation of statute, § 717. statute prohibiting carriers from transporting commodities in which they have an interest, § 716. 1178 GENERAL INDEX. [References are to sections and paragraphs.] COMMODITY RATES, alternative use of, § 474. defined, § 80, jf H. failure of joint agent to file, § 479, f J. for express traffic, § 531. must be specific, § 530. shown in tariffs must be specific, § 473. COMMON CARRIERS, COMMON CONTROL, defined, § 33, 1[ C. See Cabeibbs. COMMON LAW, inapplicable to regulation of interstate commerce, § 5. right to contract not abridged by commerce act, § 260. "COMMON POINTS," limiting use of terms, § 643. COMMUTATION TICKETS, for passengers, § 563. nature of, § 563, ^ A. no discrimination between classes of persons, § 563, ^ D. tariffs covering, § 657. use of intrastate in interstate journey, § 563, U H. COMPENSATION, See Rates, Faees and Chakges. COMPETITION, agreements to prevent, § 746, f B. as factor in classification, § 62, ^ K. effect on long and short haul clause, §§ 110-116. not a justification of preferential rate, § 378, ^ I. COMPLAINTS, before commission, §§ 776, 784. by whom made, § 784, f A. discrimination, § 776, f B. forms of, § 796. forwarded by state railroad commission, § 784, f E. investigation by commission, § 784, |f D. not dismissed for failure of direct evidence of damage to complainant, § 784, f I. rules of commission as to, § 796. service upon carrier, § 784, If B. GENERAL INDEX. 11119 [References are to sections and paragraphs.] CONCEALMENT, of character of packages containing explosives, § 455. CONCESSION, See Rebates. grant of as unjust discrimination, -§ 389. unlawful to offer, grant, solicit, or accept, § 392. CONCURRENCES, authority of agent to file for express company, § 544, U O. better than power of attorney, § 480, ^ B. by carriers in tariffs Issued and filed by another carrier, §§480, 661. by express company in tariffs issued and filed by another com- pany, § 545. cross exchange of, § 479, \{ C. express tariffs must show numbers, § 526, f C. filing with interstate commission, §§ 459, 479, 1[ G, § 661. for express companies, § 517. for freight and passenger traffic, § 480, f B. forms of, § 545, f|f A, B, C, D, E, F, G. forms, § 480, W^, F, G, H, I, J, K. to passenger tariffs, §§ 630, 661. illegality of tariffs not concurred in, § 480, f R. must be filed, § 479, If E. must be given to carriers named in the joint tariff, § 480, ^ C. number of, § 480, ^ L. to passenger tariffs, § 661, f L. of old carrier must be replaced by those of new company, § 640, If N. of participating express carriers filed with commission, § 517, If B. responsibility of carriers under old system, § 492, f A. revocation, §480, fM, §661, IfM. size of paper, § 480, If B. tariffs to be posted notwithstanding, § 480, If P. use of consolidated, §480, ffQ, §661, IfQ. when notice of revocation becomes effective, § 545, f J. CONGRESS, attitude at time of passage of law against pools, § 692. control over interstate commerce, §§28, 29, f A. control over foreign commerce, § 31. over intraterritorial transportation, § 29, ff A. 1180 GENERAL INDEX. {References are to sections and paragraphs. "i CONGRESS— Continued. transportation in District of Columbia, § 30. power to establish commission, § 1. has full power to correct discriminations, § 364. CONNECTING CARRIERS, See Interchange of Tbatpic, Routes and Routing. discrimination between in furnishing facilities, § 379. reimbursement of for misrouting, § 426, f G. CONSTITUTIONAL LAW, constitutionality of limitation statute, ' § 315. of reparation provision of act, § 409. interstate commerce clause of constitution, § 28. CONTINUOUS TRANSPORTATION, See Interchange of Traffic. CONTRACTS, See Bills of Lading, Conteacts between Carriers, Pooling Contracts, Rates and Charges. common law right of carrier to contract protected, § 260. effect of mistake by carrier's agent in quoting rate of shipper, §253. entered into prior to passage of act forbidding free transpor- tation, § 258. for different rate than that published in tariff, § 251. for payment of car service charges, § 305. government-aided carriers required to file copies of, § 754. ignorance of shipper as to published rates does not validate contract for lower rate, § 252. jurisdiction of commission over breach of, § 408, ^ M. leasing carrier's property in consideration of his shipments, § 256. of shipment, § 257. * shipper cannot recover on rate different from published rate, §423. special understanding between shippers and carriers not pub- lished in trafiScs invalid, § 255. state statutes relating to contracts, carriers and shippers, § 262. status of for special rates entered into before passage of act, § 261. to maintain and establish rate ineffective after higher rate established, § 254. with shipper for transit privilege, § 241. GENERAL INDEX. 1181 [References are to sections and paragraphs.] CONTRACTS BETWEEN CARRIERS, between railroad- companies and telegraph companies for free transportation of men and supplies, § 679. commission may prescribe proportion of joint rate where carriers fall to agree, § 673. copies must be filed with commission, § 672. copies preserved as public records in custody of secretary of commission, § 675. division of proceeds of sale of shipment to pay charges, § 676. elements considered by commission in fixing division of rates, §674. error in sale of passenger tickets, § 677. legalizing agreements for rate publication recommended, § 681. trafiic association, § 680. COPIES, certified of tariffs as prima facia evidence, § 513. of schedules preserved as public records, § 512. rules of commission as to copies of papers or testimony, § 796. service of, § 796. CORRESPONDENCE, mailing lists In charge of operating division, § 14, ^ A. with commission by carriers on transportation matters, § 18, COTTON, "floating," § 226. jurisdiction of commission over compression of cotton, § 245, f D. weighing for shipment, § 156, f B. COUNSEL, See Attoeneys. special counsel of commission, § 12. COURTS, interstate commerce commission not an inferior court, § 25. CROSS EXCHANGE, of concurrences, § 479, f C. CUT RATE TICKETS, See Ticket Bbokerage. D DAMAGES, accrued claims not invalidated by cancellation of absorption rule, § 429. 1183 GENERAL INDEX. [References are to sections and paragraphs.'] T)AM.AGES— Continued. adjustment of claims on presentation, § 439. assignability of overcharge claim, § 436. benefit of reparation order extends to all like shipments, § 437. change of rate while shipment on ocean, § 447. charges in excess of published schedule, § 412. claim for, not based on unlawful privilege, § 418. commerce act contemplates pecuniary reparation, § 410. delivering carrier must investigate before paying claims, § 438. determination of, by interstate commerce commission, § 25. due to failure to post rate schedules, § 425. establishment of through rate for purpose of awarding repara- tion, §417. failure to furnish proper cars, § 433. failure to perform expedited service, § 427. for assessment of unreasonable rates, § 413. inability to harvest crops are speculative, § 431, ^ P. interstate traflBc, § 435. jurisdiction of commission to award, §§ 408, 409. liability of members of traffic association for unreasonable rates, § 440. limitations of action, § 442. loss of business is speculative, § 431, ^ D. loss of employment is speculative, § 431, ^ B. loss of profits, § 431, C. loss of property caused by tardy delivery, § 408, f B. loss of prestige is remote, § 431, f E. measure for charges exceeding published schedule, § 412, f B. measure for unjust discrimination, § 428, f C. misquotation of rates, § 446. misrouting shipments, § 426. not allowed on contract rate different from published rate, § 423. not awarded where effect will be to make a reconsigning privilege retroactive, § 422. on account of detention of goods until published rate paid, § 424. order of commission awarding, § 445. parties entitled to, § 441. parties to action for, § 443. protest against excessive charges prerequisite to recovery of damages, § 415. recommendations for legislation for damages from misquotation, § 446, If B. refund for clerical error in tariff, § 420. GENERAL INDEX. 1183 [References are to sections and paragraphs.'\ DAMAGES— ContinMed. of overcharge on sMpment to adjacent country, § 419. release of as consideration for issuance of pass, § 258, f A. remedies for wrongs occurring before statute, § 448. remote or speculative, § 431. reparation limited to damages from violation of act, § 411. not ordered for purpose of equalizing rates, § 416. rules of procedure before commission, § 444. special reparation on informal complaints, § 449. to fruit by delayed notice or arrival, § 430. unjust discrimination, §§ 386, 428. unloading freight at depot instead of consignee's siding, § 434. violation of long and short haul clause, § 414. where rates have been voluntarily reduced, § 421. wrongful deprivation of benefit of return coupon, § 432. DATE, of issue of tariff on title page, § 525, fl P. "DEADHEADING," employes not within hours of service law, § 730. DEALERS, free transportation of, § 603. DEAD BODIES, free transportation of remains of members of family of em- ployg, § 595, If B. DECISIONS, of commission, § 17. DEFINITIONS, amendment of express tariffs, § 534, § A. basing tariffs, § 467, 1[ C. carriers, § 26. common control, management or arrangement for continuous transportation, § 33 H C. commutation tickets, § 563, f A. demurrage, § 284. different kinds of express tariffs, § 522. different kinds of passenger tariffs, § 635. different kinds of rates, § 80. discrimination, § 365, If C. distance tariffs, § 467, f F. embargo, § 356. 1184 GENERAL INDEX. [References are to sections and paragraphs.] DEFINITIONS— Co>i«in«ed. employes, § 727. entitled to passes, § 595, f A. excursion tickets, § 563, ^ A. families entitled to passes, § 595. interdivision tariffs, § 467, f D. interstate railroads, § 32, ^f A. joint tariffs, § 467, U B. joint express tariffs, § 522, f B. joint fare for passengers, § 551. "just" and "reasonable," § 85, f B. "like kind of traffic," § 365, U A. "like services," U 365, IfD. limited to a designated period, § 657, f B. "line" in long and short haul clause, § 122. local tariffs, § 467, f A. express tariffs, § 522. phraseology used in tariffs, § 466. party rate tickets, § 564, ^ A. pools, § 688, 1[ A. private car, § 296, ^ A. private side-track, § 296, If A, § 355. proportional tariffs, § 467, ^ E. railroad, § 26. "rate" In rebating statute, § 393. reconsignment, § 223. technical phrases in statute against discriminations, § 365. technical terms used in classification of freight, § 71. through route, § 180. transportation, §§26, 215, ^[B. "twenty-four hour period" in hours of service law, § 726. "under substantially similar circumstances and conditions," § 365, unjust discrimination, § 362. DELIVERY, duty of carrier to acquaint consignor of refusal of assignee to accept, § 279. right of shipper to direct, § 201. DEMURRAGE, charges, § 276. charges accruing pending controversy between carriers, § 298. pending controversy between shipper and carrier, § 297. GENERAL INDEX. 1185 [References are to sections and paragraphs.] BEUVRRAGE— Continued. astray shipments, § 299. must be just and reasonable, § 291. and regulations must be sbown in published schedules, §291. resulting from strikes, § 300. computation of time, § 305. copy of rules approved by railway commissioners and associa- tion, § 305. defined, § 284. difference based on nature and character of commodity, § 292. different plans of car service, considered, § 287. duty of carrier to collect charges, § 294. duty of shipper or consignee to pay, § 293. P. O. B. shipments, § 301. jurisdiction of commission over, § 289. matters to be considered in fixing car service rules, § 288. nature of as penalty or rental, § 285. on privately owned cars, § 296. on traffic from and to Canada, § 302. publication of charges in freight tariffs, § 463, jf G. reciprocal demurrage, § 303. right to assess, § 286. right to Include under long and short haul clause, § 119. uniform rules, § 205. waiver of charges by carriers, § 304. where consignee relieved from payment, § 295. DEMURRER, notice in nature of, § 796. DEPOSITION, before whom taken, § 787, ^ P. form of notice to take, § 796. rules of commission as to, § 796. use of before commission, § 787, Iff C-L. witness in foreign country, § 787, f J. DETONATORS, regulation for transportation of, § 457. DIFFERENTIALS, defined, § 80, If P. DIRECTORS, free and reduced rate transportation to, § 608. Ebgulation — 75. 1186 GENERAL INDEX. [References are to sections amd paragraphs.] DISCRIMINATION, See Rates and Chaeqes, Rebates. against small in favor of large town, § 378, ^ F. all discriminations and preferences not unlawful, § 366. in allowance of transit privilege, § 244. before interstate commerce act, § 10. between' carload and less than carload shipment, § 368, ^f P. between connecting carriers in furnishing facilities for inter- change, § 379. between competitive articles in same market, § 368, ^ N. between domestic and import or export rates, § 368, jf J. between group points, § 378, f G. between localities, § 378. between manufactured products, § 377, ^ B. between ministers of the gospel, § 382, jf B. between rates on export and domestic traffic § 368, ^ O. between white and colored passengers, § 384. by government-aided railroad and telegraph companies, § 747. carrier may not ereate artificial market conditions, § 378, ^ E. carrier may not foster local industries, § 378, \{ D. carriers bound to afford equal facilities of transportation, § 367. classification, §§ 70, 375. definition of technical phrases used in statute against, § 365. demand of prepayment of charges, § 370. distribution of cars, §§ 173, 372. diversion of traffic contrary to considerations, § 374. enforcement of embargo, § 373, f D. exaction of sum for failure to purchase ticket, § 382, ][ B. furnishing facilities for interchange of traffic, § 670. grant of terminal facilities, § 280. group rates, § 368, ^ M. hauling private cars, § 167, 1[ E, § 373. higher rate on traffic from connecting carrier than own line, §368, ^K. in exacting prepayment of charges by preceding carrier, § 670, fD. in favor of competitive point, § 116. in granting free or reduced rate transportation, § 628. jurisdiction of commission over, § 387. purposes of prohibition against, § 364. not allowed in issuance of commutation tickets, § 563, If D. passenger fares, § 586. passengers on freight trains, § 386. GENERAL INDEX. 1187 [References are to sections and paragraphs.'] DISCRIMIN ATION— Cowimuec?. penalties for, §§ 390, 391. preferences to military trafllc in time of war, § 381. primary jurisdiction of commission to determine existence of, §24. rates for transportation of freight, § 368. rebates and concessions, § 389. refusal of C. O. D. service to liquor shipments, § 380. reparation for, §§ 388, 428. lor discrimination in facilities, § 408 ^ K. retention of overcharge, § 371. rights of passengers beyond terminus of line, § 385. special privileges to certain shippers, § 376. statement in complaints, § 776, f B. terminal facilities and charges, § 369. ticket brokerage, § 383. transit privileges, § 377. transportation of passengers, § 382. unjust, defined and prohibited, § 362. unreasonable preference or advantage forbidden, § 363. DISPUTES, as affecting demurrage charges, §§ 297, 298. DISSIMILARITY, of circumstances and conditions to justify lower rate at long distance points, § 106. DISTANCE, as factor in desirability of routes, § 192, If B. DISTANCE OF CARRIAGE, as element in making rates, § 82, ^ H. DISTANCE TARIFFS, defined, § 467, U F. DISTRIBUTION OF CARS, See DtTTT TO Fubnish Cabs. coal cars, § 162, f C. discrimination in, § 173, 372. during shortage, § 169, U G. equality of distribution, § 372, If N. jurisdiction of commerce commission over, § 175. rules for, § 169. for rating of coal mines, § 169, f H. 1188 GENERAL INDEX. [References a/re to sections and paragraphs.} DISTRIBUTION OF CARS— Contimied. shipper may not complain of reasonable rules on subject, § 373, If C. BISTRICT OP COLUMBIA, regarded as state, § 2S. Jurisdiction of commission over transportation within, § 30. DIVERSION, as unjust discrimination, § 374. by carrier without shipper's consent, § 203. in case of necessity, § 204. DIVISION OF EARNINGS, See Pooling Conteacts. DOCKETS, of commission, § 14, H A, § 791. DOCUMENTARY EVIDENCE, before commerce commission, § 787. rules of commission as to, § 796. DOGS, rates based on declared valuation of, § 311. DRAWBACKS, See Rebates. DRAYAGE, charges for must be shown in tariffs, § 463. refund of charges caused by misrouting, § 426, j[ F. state in freight tariffs, § 463 f L. DUPLICATE, of reports furnished commission, § 705, If C. DUTY TO FURNISH CARS, See DisTEiBTJTioN or Cabs, Pbivate Cabs. carrier bound by acts and representations of agent, § 170. carrier cannot compel shipper to furnish, § 165. carrier must send cars through or transfer shipments en route, §174. cars must be suitable to use, § 163. cars obtained from other sources, § 167. car shortage, §§177-179. causes of car shortage, § 177. coal cars, § 162, f C. GENEEAL INBEX. - 1189 [References a/re to sections and paragraplis.'] DUTY TO FURNISH CARS— Continued. damages for discrimination, § 428, ^ B. damages for failure to furnish proper cars, § 433. failure due to shortage, § 167, If C, B. general duty, § 162, \l A. jurisdiction of commerce commission, § 175. on newly constructed roads, § 169. order in which applied for, § 167, f D. private cars in freight traffic, § 166. refrigerator cars, § 162, ^ B. right to refuse to accept cars until claim for damages is paid, §171. rules governing distribution, § 169. state regulation of matter, § 176. sufficiency of refrigerator cars, § 214. DYNAMITE, classification of, §62, ^A. regulations for transportation of, § 457. E EATING HOUSES, free and reduced rate transportation of supplies for, § 321, fl B. ELECTION OF REMEDIES, between complaint to commission and suit, § 783. ELECTRIC RAILWAYS, application of hours of service law to, § 731. subject to control, § 32, ^ C. ELEVATION, allowance by carrier for service, §§ 250, 340. Carrier may procure from other sources, § 248. charges for, §§ 249, 250. must be -shown in schedules, §463. does not include mixing, grading, cleaning, etc., § 246. duty of carrier to furnish, § 247. in transit, § 244, If 0. nature, § 246. storage after period of elevation, § 246. weighing and inspection not classed as, § 246. BLKINS ACT, against rebates or concessions, § 392. 1190 GENERAL INDEX. [References are to sections and paragraphs.] EMBARGOES, defined, §356. discrimination in enforcing, § 373, f D. duty of shipper to keep himself informed as to status of, § 359. lawfulness of, § 357. method of forwarding cars after raised, § 360. preferences during period of, § 358. EMPLOYES, See Hours of Sebvice Law. of commission, § 6. entitled to passes, § 595, 1[ A, § 599. free and reduced rate to employes engaged in construction, § 608. employes of express company, § 618. employes of subsidiary corporations, § 606. employes of telegraph and telephone companies, § 607. to employfe of news companies, § 611. EMPLOYERS' LIABILITY ACT, act of 1906, § 738. declared unconstitutional, § 739. act of 1908, § 740. injuries within the territories, § 742. recovery for loss to family, § 741. ENTIRETY, rate to be considered as such under long-and-short-haul clause, § 121. EQUALIZING RULES, freight tariffs, § 491. EQUIPMENT, See Distribution of Cars, Duty to Furnish Cars, Interchange of Cabs. cars for transportation of explosives, § 457. car shortage, §§ 177-179. coal cars, § 162, ^ C. duty of carrier to furnish suitable cars, § 163. jurisdiction of commission to compel furnishing of particular equipment, § 175, f D. method of acquiring optional with carrier, § 164. refrigerator cars, § 162, f B. right of carrier to lease, § 167, ^[1[ E, P. responsibility of carrier for equipment secured from foreign sources, § 167, f J. GENERAL INDEX. 1191 [References are to sections and paragra^hs.'\ EVAPORATION, allowance for, § 368, If B. EVIDENCE, before commission, § 787. certified copies of reports and tariffs as prima facie, §§ 513, 715. documentary evidence before commission, § 787. power of special agents or examiners to receive, § 13, f B. rules of commission as to documentary, § 796. EXAMINERS, commission may employ, to inspect accounts and records, §§ 13, 14, f C, § 699. have power to administer oaths and examine witnesses, § 13, ^ B.' punishment for divulging information without authority, § 13, lie, §768. EXCEPTION SHEETS, , agents authorized to file, § 479. to issue for express companies, § 544. effective dates of, § 476. filing with commission, § 459. for express companies, § 517. form of appointment of agents to file, § 479, f B. of express company, § 544, ^ B. EXCURSIONS, carrier may employ person to promote, § 581. contract with promoter, § 581. discrimination in grant of privilege, § 382, fl J. between different societies as to party rates, § 564, f B. fares for, to be shown in tariffs, § 639, ^ R. tariffs must show list of participating carriers, § 639, ^ D. EXCURSION CARS, right of carrier to refuse to haul, -§167, fH. EXCURSION TICKETS, damages for deprivation of return coupon of, § 432. for passengers, § 563. Invalidated through failure of carrier to make connection, § 563, nature of, § 563, 1[ A. tariffs covering, § 657. EXHIBITIONS, See Fairs and Expositions. 1193 GENERAL INDEX. {References are to sections cmd paragraphs. "l EXPENSES, of commission, § 10. EXPEDITED SERVICE, damages for failure to perform, § 427. of commission, § 10. EXPIRATION NOTICE, on title page of tariff, § 525, f G, § 638, ^ P. EXPLOSIVES, classification, § 72. commission may formulate regulations for transportation of, §453. concealing character of packages, § 455. excepted class of explosives that may be transported with pas- sengers, § 452. packages containing must be marked, § 455. penalties for violation for law against transportation, §§456, 775. preparation of cars for transportation of, § 457. regulations for transportation, § 457. rules for loading, § 457. rules for transportation set out in freight tariffs, § 471, f R. rules in case of wreck involving car containing, § 457. tariffs covering transportation of, § 486. unlawful to transport with passengers, § 450. EXPORT TRAFFIC, bills of lading relating to, § 132. tariff covering, § 508. express tariffs, § 548. EXPOSITIONS, See Fairs and Expositions. EXPRESS COMPANIES, agents authorized to issue tariffs, supplements, etc., § 544. amendments and supplements to tariffs, § 534. on less than statutory notice, § 520, ^ D. basing tariffs, § 527. cancellation of tariffs or parts thereof, § 533. circulars announcing compliance with orders, § 542. commodity only lawful rate, § 531. commodity rates must be specific, § 530. concurrence in tariffs filed by other companies, § 544. must be filed with commission, § 517, U B. GENERAL INDEX. 1193 [References are to sections and paragra4>hs.1 EXPRESS COMPANIES— OorsWnMed. different kinds of tariffs, §§ 521, 522. explanation of reference marks and abbreviations in tariffs, § 526, II G. filing tariffs, classifications, exception sheets, etc., with commis- sion, § 517. filing tariff does not relieve from liability for violation of act or regulations, § 539. form and size of tariffs, § 524. free transportation of employes, § 618. of supplies, § 327. of railway packages by, § 328. freight tariffs, § 515. index of tariffs, § 535. must show oflSces, § 526, If E. information to be contained in tariffs, § 526. insertion of rules in tariffs, § 526, If J. joint basing transfer tariffs, § 528. jurisdiction of commission over, § 34. over publication, posting and filing of rates, § 519. limitation of terms "Missouri river points," "general specials," §529. local tariffs should have I. C. C. numbers and be posted and filed, §538. maximum rates not specific rates, § 550. names of participating must appear in tariffs, § 526, ^ B. notice required for publication of rates and changes therein, §§519, 520. numerical order of I. C. C. numbers or explanations, § 543. posting of tariffs, § 518. publication of rates, § 560. rates for interstate shipments must be posted and filed, § 537. rates for mixed shipments, § 532. rates prescribed by commission must be promulgated in tariff, §541. rates to or from new offices, § 520, f J. reasonableness of rates, § 86, f CC. rejected schedules, § 540. responsibility, of companies under tariffs, § 549. right of carrier to haul cars for, § 167, ^ I. rules and regulations as to rates, § 521. rules and regulations filed and posted may be referred to in other schedules, § 526, If L. 1194 GENERAL INDEX. [References are' to sections and paragraphs.] EXPRESS COMPAtilKS— Continued. table of contents of tariff, § 526, ^ A. tariffs covering export and import traffic, § 548. tariff must specify cancellation, § 533, ^ A. must be printed, § 523. must contain all rates on commodities in tariff between same points, § 526, f D. must show concurrence numbers, § 526, If C. to or from season or summer office, § 536. territorial or group descriptions in tariffs, § 526, ^ F. title page of tariff, §§525, 535, IfC. transmittal letter accompanying tariffs, § 546. withdrawal of tariffs not permitted, § 547. EXPRESSMEN, not subject to control of commission, § 54. EXTENSIONS, of time on limited tickets, § 571. rules of commission as to, § 796. FACILITIES, See Elevation, Refkigeeation, Terminal Facilities. carrier bound to afford equal, § 367. discrimination in furnishing by connecting carriers, § 379. for interchange of traffic between connecting carriers, §§ 664-671. reparation for discrimination in furnishing, § 408, jf K. FAIRS AND EXPOSITIONS, free and reduced rate transportation for, § 319. FALSE BILLING, as violation of rebate statute, § 396. FALSE CLASSIFICATION, violation of rebate statute, § 396. FALSE ENTRIES, punishment for, § 701. in accounts or records, § 767. FALSE VALUATION, as violation of rebate statute, § 396. GENERAL INDEX. 1195 [References are to seotions and paragraphs.} FAMILIES, deceased wife of employe member until given permanent burial, §595, fB. of employes entitled to free transportation, § 595, f B. FAST FREIGHT LINES, guide books, § 484. jurisdiction of commission over, § 36. FEDERAL COURTS, process of, in investigations before commission, § 25. FEES, of witnesses and magistrates in taking deposition, § 787, \l L. FERRY COMPANIES, jurisdiction of commission over, § 40. not subject to interstate commerce act, § 56. FERRY EMPLOYES, application of hours of service law to, § 732. FILING, agents authorized to file tariffs, classifications &c., § 479. annual reports, § 704, ][ E. classification, § 75. classifications issued by joint agents, § 479, f ^ O, P. concurrences to be filed, § 480. express company tariffs, classifications, exception sheets, sup- plements, § 517, 537. interstate fares must be filed, § 653. jurisdiction of commission over filing schedule, § 461. rates and charges, § 93. tariffs, classifications, &c. with commission, § 459. FIREWORKS, regulations for transportation of, § 457. FISH, passes to caretakers of, § 602, f F. FIVE THOUSAND MILE TICKETS, joint and interchangeable, § 565. sale of, § 560, U C. FLOUR, difference in rates as dependent on package, ^[368, f F. 1196 GENEKAL INDEX. [References are to sections and paragraphs.] P. O. B. SHIPMENTS, demurrage on, § 301. FOREIGN CARS, distribution during shortage, | 169, ^ G. responsibility for, § 167, If J. FOREIGN COMMERCE, jurisdiction of commission over, § 31. not subject to regulation by commission, § 51. transportation from United States to foreign country and carried from sucb place to port of transshipment, § 31, f D. transportation to place in United States from port of entry either in United States or adjacent foreign country, § 31, ^ D. FOREIGN COUNTRIES, effect where portion of transportation is through, § 28, ^ P. tariffs covering movement of passengers to and from, § 663. FOREIGN RAILROADS, not subject to interstate commerce act, § 58. FORFEITURE, failure to file reports, § 765. for failure to keep accounts or records or allow inspection, § 766. in addition to penalty for violation of commerce act, § 763. FORMAL COMPLAINT, before commission, § 776, f B. docket of, § 791, ^ A. FORMS, agreement for payment of car service charges, § 305. answer before commission, § 796. appointment of agent to file passenger tariffs and supplements, §642, IfB. bills of lading, §§ 130-133. cancellation notice, § 477, f F. of express rate, § 533, ^ D. commission may prescribe procedure, § 778. complaints against single carrier, § 796. complaints against two or more carriers, § 796. concurrences, § 480, If F, § 545, fff A, B, C, D, B, F, G, H, § 661. contract with promoter of excursion, § 581; duplicate of concurrences furnished express company, | 545, ^ D. express tariffs, § 524. GENERAL INDEX. 1197 [References are to sections and paragraphs.] FORUS— Continued. letter of transmittal accompanying tariffs filed with commission, §§481, 546, 662. notation on title page of tariff publications, § 494, H D, § 495, f A. notice by carrier under rule V, § 796. notice of schedules at stations, § 460, U C. notice to take deposition, § 796. of appointment of agent of express company to file tariffs, § 544, of appointment of agent to file tariffs, classifications and excep- tion sheets, § 479, ^ E. of certificates for cars to carry explosives, § 457. passenger tariffs, § 637. passes to eligible persons, § 597. right of commission to prescribe form of reports, § 704, ^ B. subpoena, § 796. title page of tariff, § 470. FRANKS, issuance by express companies to ofiicers, agents and employes, §331. FREE AND REDUCED RATE TRANSPORTATION, baggage with mileage tickets, § 320. charitable purposes, § 318. coal for steam purposes, § 326. company material, § 321. express companies supplies, § 325. for fairs and expositions, § 319. issuance of "franks" by express companies, § 331. material for refrigeration plant not owned by carrier, § 329. material supplies for telegraph and telephone companies, § 330. railway packages by express companies, § 328. return shipments, § 323. return of astray shipments, § 322. shipments refused by consignees for damages in transit, § 324. trucks of cars destroyed on foreign lines, § 325. United States, state or municipal government, § 317. FREE-TIME ALLOWANCE, See Demubbagb. FREIGHT, diversion in case of necessity, § 204, ^ A. 1198 GENERAL INDEX. [References are to sections and paragraphs.'] FREIGHT CARS, duty of carrier to furnish suitable, § 163, 1[ A. FREIGHT TARIFFS, See Caeeiees of Freight, Express Companies, Kates and Charges. addressed to commission, § 517, ^ D. agents authorized to issue and file, §§ 479, 544. allowances to shippers, § 463, f M. alphabetical arrangement of commodity rates, § 471, f G. alternative use of class or commodity rates, § 474. amendments and supplements to, § 475. as dependent on classification of freight, §§ 59, 60. basing or proportional must be specific, § 482. cancellation, § 477. carrier may not publish rates conflicting with rates published by agent, § 479, If I. certified copies as prima facie evidence, § 513. charges to water carriers not advanced unless parties to tariff, §514. circulars announcing compliance with court's orders, § 499. commodity rates shown must be specific, § 473. concurrence by carriers in tariffs filed by another carrier, § 480. copies preserved as public records, § 512. departure from published tariff a misdemeanor, § 509. different kinds defined, § 467. disposition of those received , by commission too late to give notice, § 459, jf H. distance tariffs, § 483. distinction between steam and electrical transportation, § 465. duty to include routes, § 471, ^ U. effective dates of, § 476. equalizing rules, § 491. export and import traflSc, § 508. express companies, § 515. failure to publish a misdemeanor, § 511. fast freight line guide books, § 484. filing class but not commodity rates, § 479, ^ J. filing tariffs, exception sheets, concurrences &c. with commission, §459. filing with commission does not relieve carrier violating act, §497. form and size of, § 469. form of appointment of agent to file, § 479, U D. form of public notice in stations, § 460, f C. GENEEAL INDEX. 1199 [References are to sections and paragraphs.] FREIGHT TARIFFS— Continued. freight received in United States and carried througti foreign country to another place in United States, § 488. governing transportation of explosives, § 486. importance of proper publicity in rates, § 458, U B. inclusion of rate tables, § 471, ^ T. index, § 494. industrial or terminal roads as parties to joint tariffs, § 502. information to be set out, § 471. on title page, § 470. joint basing express transfer tariffs, § 528. joint tariffs issued by joint agents, § 478. jurisdiction of commission over publication, posting and filing, §461. lessee road not common carrier, § 507. letter of transmittal, § 481. liability of carriers under, § 492. local tariffs must have commission numbers and be posted and filed, § 505. maintenance of relative adjustment in issuing to conform to orders, § 500. maximum rates not specific rates, § 510. , method of addressing, § 459, ^ B. must be delivered free from all charges or claims for postage, § 459, iti™«ed. risk as element in making, § 82, ^ E. shingles should not exceed lumber rates, § 82, ^ R. special understandings opposed to tariffs, § 255. state authority over terminal charges affecting interstate trans- portation, § 283. tariffs not given retroactive effect, § 89, ^ C. terminal facilities, §§ 273-277. charges must be just and reasonable, § 277. territorial divisions of the United States for rate-making purpose, §99. through rates, § 80, ^ C. transit privilege, §§ 225, 230. use of classification of freight in making, § 83. value of commodity as factor In making, § 82, ^ D. of investment, § 82, f J." of service of shipment, § 82, | A. volume of traffic, § 82, ^ F. weight and bulk of article as elements in making rates, § 82, J G. where articles are competitive in same market, § 82, f R. RATE SCHEDULES, See Freight Tabiffs. RATE SHEETS, as evidence, § 796. RATE TABLES, express tariffs, § 526, f M. freight tariffs, § 471, ^ T. REASONABLE RATES, See Rates and Chabges. absolute equality not attainable, § 86, ^ BB. any-quantity rates, § 86, f D. comparison of rates on different lines of same carrier, § 87, ^ C. change which will disturb relative rates in large territory, § 86, desire of carrier to keep certain traffic upon its line, § 86, ^ T. determination primarily with commission and not with courts §24. division of through rate not conclusive as to reasonableness of rate itself, § 87, If F. enforcement of regulations not shown in published tariff as affecting, § 86, f E. equalizing rates of different carriers, § 86, f W. GENERAL INDEX. 1231 [References are to sections and paragraphs-^ REASONABLE RATES— Continued. express rates, § 86, ^ CC. filing schedule does not raise presumption of reasonableness, § 86, HBB. general duty of carrier, §§ 85, 86. graduated rates, § 86, ^ Z. group or "blanket" rates, § 86, ^ AA. higher rates on perishable traffic, § 86, |f O. over route composed of more than one carrier, § 86, ^ L. where freight shipped collect than when prepaid, § 86, f I. where shipments are tendered with other than uniform bill of lading, § 86, ^ F. imported merchandise not entitled to inland proportional rate when transportation from port purely local, § 86, ^ Y. in undeveloped territory, § 86, ^ R. Interstate Commerce Commission may determine and prescribe, § 101, II B. local rate as standard for interstate rate, § 87, ^ G. long-haul traffic, § 86, f Q. long continued maintenance of lower rate raises no presumption that new rate is unreasonable, § 86, U FF. lower for carload than less than carload quantity, § 86, |[ B. low rates for low grade traffic, § 86, f P. minimum charge for less than carload, § 86, f C. ■ presumption where long established rate is advanced and then reduced, § 86, U GG. question one of fact, § 85, f A. rate-per-ton-per-mlle rule, § 86, f BB. rates established by agreement between carriers, § 86, If N. refrigeration charges, §§ 215, 216. through rates in excess of combination of local rates unreason- able, § 86, ^ J. lower than combination of local rates, § 86, ^ K. to develop particular industry, § 86, ^ S. tonnage shipped by particular firm, § 86, f U. train-load rates, § 86, f E. usage of the commodity, § 86, ^ V. REBATES, allowance for services or instrumentalities belonging to shippers, §399. for use of private track of shipper, § 400. to terminal railroads, § 347, 397. to "tap lines," § 398. 1232 GENERAL INDEX. [References are to sections and paragraphs.] RIEBATES—Gontirmed. does not vitiate bill of lading, § 127. cancellation of storage charges, § 401. commissions, § 402. departure from published rate essence of offense, § 395. grant a misdemeanor, § 95. unjust discrimination, § 389. joint rebate not essential to offense, § 404. meaning of term "rate" in statute against, § 393. method immaterial,- § 394. misdemeanor to offer, solicit or accept, § 759. origin of system of granting, p. 8. penalty for, § 407. refund of fares to children, % 406. relief of agent does not relieve carrier, § 405. repayment by carrier on account of switch track, § 403. Sherman anti-trust law inapplicable to, § 745. statute violated by false valuation, billing and classification, §396. unlawful to offer, grant, give, solicit, accept or receive, § 392. RECEIVERS, jurisdiction of commission over, § 47. may be sued without permission of court, § 47. not liable for violation of joint tariff established by company, §47. RECONSIGNMBNT, See Transit Privilege. defined, § 223. publication of privileges in freight tariffs, § 463, ^ D. RECORDS, See Reports. commission entitled to access to carriers' records, § 697. commission may employ special examiners to inspect, § 699. destruction of, § 702. mutilation of, punishment for, § 768. power of commission to prescribe forms of, § 696. punishment for making false entries in, § 701. for failure to keep, prescribed, § 700. of examiner for divulging information, § 702. REDEMPTION, of unused passenger tickets, § 575. GENERAL INDEX. 1333 [References are to sections and paragraphs.] REDUCED RATE PASSENGER TRANSPORTATION, to clergymen and charity workers, § 604! commercial travelers, § 613. contractors and employes engaged in construction, § 608. excepted classes in commerce act, § 595. for deportation of Chinese not permissible, § 619. immigrants, § 614. officers and employes of telegraph and telephone companies, § 607. persons entitled to passes, § 596. troops and marines, § 609. unjust discrimination in granting, § 628. REFEREES, powers of commission are those of referees, § 25. REFERENCE MARKS, explanations of in express tariffs, § 526, \l G. in passenger tariffs and schedules, § 639, ly I. REFRIGERATION, See Ventilation. carrier may contract with car line company to furnish facilities, §213. charges must be just and reasonable, § 215, 216. must be shown in tariffs, § 463. duty of carrier to furnish facilities, § 212. elements to be considered in fixing charges, § 217. free transportation of material for erection of plant, § 329. jurisdiction of commission over facilities and charges, § 221. liability of carrier for facilities furnished shipper, § 214. method of assessing charges, § 219. publication of charges, § 220. regulation fixing different minima for cars with and without §142. relation of charges for, to the freight rate, § 218. REFRIGERATOR CARS, duty to furnish, § 162, f B. sufficiency of, § 214, f A. REFUND, commission without authority to direct, § 408, ^ O. passenger exceeding stop-over limit, § 573. unused portion of round trip ticket, § 576. REGULATIONS, See Rules. Eegulation — 78 . 1234 GESTEKAL INDEX. [References are to sections cmd paragraphs.] REHEARING, before commission; § 788. rules of commission as to, § 796. REJECTED SCHEDULES, of express companies, § 540. RELEASE, of damages as consideration for issuance of pass, § 258, If A. RELIEF TRAINS, application of hours of service law to, § 733. REMOTE DAMAGES, See Damages. REMOVAL OF CAUSES, application of act to receivers, § 47. REPARATION, See Damages. by carrier before investigation, § 784, ^f C. REPORTS, See Eecobds. accident, § 709. apportionment of operating expenses between freight and pas- senger service, § 706. as evidence, § 796. before whom acknowledgments to may be taken, § 707. certified as prima facie evidence, § 715. commission to congress, § 20. forfeiture as punishment for failure to file, § 765. government-aided railroad and telegraph lines, §§ 708, 755. hours-of-service law, § 713. investigation by commission, §§17, 784, ^IfF, G. not required from officer after severance of relation, § 712. of carrier to commission, §§ 704, 705. preservation by commission, § 714. service on parties, § 784, ][ H. state railroads engaged in interstate commerce, §§ 710, 711. RESHIPMENT, See Teansit Privileges. RETROACTIVE EFFECT, freight tariffs cannot be given, § 503. GENERAL INDEX. 1235 [References are to sections and paragraphs.] REVISION, indexes to revisions of express tariffs, § 535, ^ D. REVOCATION, authority of tariff agents, § 544, ^ D, § 642, ^ D. authority of joint agents, § 479, IJ D. concurrences, § 4S0, ^ M. express tariffs, when effective, § 545, ^ J. passenger tariff concurrences, § 661, ^ M. RISK, as element in malilng rate, § 82, ^ E. ROUND TRIP TICKETS, certificate plan, § 566. tariffs covering, § 657. validation of, §§ 569, 570. ROUTES AND ROUTING, carrier responsible for misrouting must make reparation, § 426, TfC. competition of parties to establish through routes, § 191. concurrence of carriers required for establishment of through route, § 182. damages for misrouting, § 426. definition of through route, § 180. diversion in case of necessity, § 204. diversion vrith shippers consent, § 203. duty of carriers to establish through routes, § 183. duty of carrier in absence of specific routing directions, § 197. effect of trackage arrangements, § 200. existence of through route, how determined, § 181. express companies, § 526, f N. Indemnifying bond against loss in establishment of through routes, § 188. intermediate routing, § 199. jurisdiction of commission to award damages for misrouting, §§210, 408. legislation recommended, § 211. liability for misrouting, § 206. matters for consideration in desirability of routes, § 192. misrouting passengers, § 209. misrouting in case of carriers not subject to the act, § 208. misrouting shipment that should have moved Intrastate, § 207. mistake in answering Inquiry of shipper as to route, § 194. 1336 GENERAL INDEX. [References are to sections and paragraphs.] ROUTES AND ROVTlNG—GontiMued. power of commission to establish through routes, § 184. refund of overcharge for misrouting, § 426, ^ H. refusal of carrier to establish through routes, § 186. reparation for misrouting where no instructions given, § 426, f A. right of initial carrier to reserve privilege, § 198. right of shipper to direct terminal routing on delivery, § 201. rights of shipper to specify and duty of carrier to observe, § 196. right of selection of connecting line in formation of through route, § 185. right to exact higher rates in consequence of shippers' route, § 205. routes should be indicated in tariffs, §§ 189, 190, 471, ^U. should be shown in bill of lading, § 193. shippers charged with notice of through route, § 195. through routes to and from shipping communities embraced in large cities, § 187. use of cars confined to a particular line, § 202. when initial carrier responsible for misrouting, § 426, ^ D. BULBS, affecting rates, § 521. must be shown in tariffs, § 463. affecting terminal service and charges, § 278. transit privileges, § 243. effect of cancellation of absorption rule, § 429. for handling car containing explosives, § 457. for reconsignment not subject" to cancellation at option of carrier, §242. included in freight tariffs, § 471, f P. express tariffs, § 526, ^ J. passenger tariffs, § 639, ]{ L. procedure before commission for reparation, § 444. transportation of explosives, § 457. uniform demurrage, § 305. Rtn:.INGS, of commission, § 16. distribution of, § 22. S SAFETY APPLIANCE ACT, enforcement of law by operating division, § 14, f A. penalty for violation of, § 773. GENERAL INDES. 1237 [References are to sections and paragraphs.] SAliARIES, commissioners, § 3, ^F. secretary of commission, § 5. SCHEDXJLES, See Freight Tabiffs, Passenger Tariffs and Schedules. damages due to failure to post, § 425. must show demurrage charges and regulations, § 290. SEAL, of commerce commission, § 779. SEASON OFFICES, express tariffs to or from, § 536. SECRETARY OF COMMISSION, appointment of, § 5. custodian of schedules, § 512. salary, § 5. SERIAL NUMBERS, joint agent will use his own, § 479, ^ F. SERVICE OF PAPERS, copies of reports on parties, § 784, If H. orders by mailing, § 789, ^ C. rules of commission as to, § 796. SESSIONS, of commission, §§ 11, 777. rules as to public, § 796. SET-OFF, authority of commission to award, § 408, | L. SETTLERS, free transportation to, § 615. SHERMAN ANTI-TRUST LAW, cannot be resorted to, to enjoin rebating, § 745. commission without authority to administer, § 743. suits to enforce cognizable only by courts, § 744. SHINGLES, rate not greater than that on lumber, | 82, ^f R. SHIPPERS, passes to, § 603. 1238 GENERAL INDEX. [References are to sections and paragraphs.] SHRINKAGE, allowance for, § 338. cattle In transit, § 408, If G. SHORTAGE OF CARS, distribution when shortage exists, § 169, \[ G. SHORT HAUL, See Long-and-Shoet-Haul Clause. SLEEPING CAR COMPANIES, jurisdiction of commission companies over, § 35. SMALL LINE TARIFFS, concurrences, § 480, ff N. SMOKELESS POWDER, regulations for transportation of, § 457. SOLDIERS, reduced rate transportation of, § 609. officers and their families, § 610. SOLDIERS' HOMES, free and reduced transportation of inmates, § 595. "SOUTHEASTERN TERRITORY," limiting use of term, § 643. SPECIAL AGENTS, have power to administer oaths and examine witnesses, § 13, f B. of commission, § 13. SPECIAL PRIVILEGES, as discrimination, § 376. SPECIAL SESSIONS, of commission, § 11, f B, § 777. SPECULATIVE DAMAGES, See Damages. STAGE LINES, passenger tariffs must show fares, § 639, ^ Q. not subject to regulation by commission, § 54. right to issue passes to officers and employes of, § 617, ^ C. STATE COMMISSIONS, complaints sent to interstate commission, § 784, ^ E. GENERAL INDEX. 1239 [References are to sections and paragraphs.^ STATE RAILROADS, jurisdiction of commission over roads engaged in interstate com- merce, § 33. syllabi of decisions by federal courts relating to, § 33, | C. STATES, See State Commissions. free and reduced rate transportation for, § 317. passes to caretakers of property transported for, § 602, f G. regulation of duty to furnish cars. § 176. tariffs covering transportation for, § 487. STATIONS, alpbabetical arrangement of in freight tariffs, § 471, f J. rules governing posting schedules at, § 460. STATISTICS, division of, under Interstate Commerce Commission, § 14, f C. STATUTES, See Intebstate Commebcb Act. against discriminations, preferences, or advantages, § 363. against rebates or concessions, § 392. commerce provision as to limitation of liability, § 312. commodities clause amendment, § 716. covering compensation for transportation, § 306. designation of carriers subject to jurisdiction of commission, §§ 26, 27. Hepburn act as to notice of rates, § 462. jurisdiction of Interstate Commerce Commission over discrimi- nations and preferences, § 387, f A. provisions of act as to reparation, § 408, f A. purposes of statutes relating to interchange of traffic, § 666. state long-and-short-haul clauses inapplicable to interstate traffic, §123. STEAMSHIP LINES, right to issue passes to agents and officers of, § 617, ]\ B. STENOGRAPHERS, employment in operating division, § 14, f A. STIPULATIONS, rules of commission as to, § 796. 1340 GENERAL INDEX. [References are to sections and paragraphs.] STOP-OVER, See Tickets. allowance of, on limited tickets, § 571. rules regarding to be included in passenger tariffs, § 639, f M. refund to passenger who exceeds, § 573. STORAGE, charges for, § 275. must be shown in schedules, § 463. of grain beyond period of elevation, § 246. cancellation of charges as medium of rebating, § 401. STORAGE PRIVILEGES, in rail and water and all water tariffs, § 496, ^ F. STREET RAILWAYS, jurisdiction of commission over, § 46. within District of Columbia subject to act, § 46. STRIKES, demurrage charges resulting from, § 300. SUBPOENAS, commission may sign, § 781. form of, § 796. rules of commission as to, § 796. SUBSIDIARY TARIFFS, concurrences, § 480, f N. SUBSTITUTION, substituting tonnage at transit point, § 233. SUMMER OFFICES, express tariffs to or from, § 536. SUNDAY, tariffs taking effect on, § 476, If C. SUPERVISION, Interstate Commerce Commission vested with administrative powers, § 25. SUPPLEMENTS, agents authorized to file, § 479. for express companies, § 544. amendment to loose-leaf tariffs, § 475, ^ H. amount of matter they may contain, § 475, ^ P. GENERAL INDEX. 1241 [References are to sections and paragraphs.^ SUPPLEMENTS— Oo»tm«ed. amount of matter contained in, § 535, 1[ F. cancellation notice must be by, § 477, f E, § 642, f D. effective dates of, § 476. exceeding limits subject to rejection, § 475, If G. filing with commission, § 459. for express companies, §§ 517, 534. passenger tariffs, § 630. form of appointment of agent to file, § 479, jf B, § 544, ^ B. index to, § 475, If J. must specify cancellations, § 477. notice of on title page of tariffs, § 526, If I, § 638, If G. numbered consecutively, § 534, ^ C. number in effect at one time, § 475, 1[ E, § 534, f E. passenger tariffs, § 640. provisions of law as to statutory notice must be observed in issuance, § 544, If L. tariffs, nature of, § 475. periodical tariffs, § 475, ^f I, § 640, fl H. rail and water and all water tariffs, § 495, ^ D. tariff filed and not yet effective, § 640, f I. SUPPLIES, of commission, § 9. SURETY COMPANY, ofllcers and employes not entitled to passes, § 621. SURGEONS, families of, not entitled to passes, § 599, f C. SUSPENSION, orders on rehearing, § 790, |f D. SWITCH CONNECTIONS, application for, § 351. at terminals, § 272. duty of carriers to construct, maintain and operate, § 348. facts to be considered in establishing in cities, § 354. location of, §352. power of commission to order, § 349. private side-tracks, § 355. purposes of the statute, § 350. right of carrier to question use made of, § 353. 1343 GENERAL INDEX. [References are to sections and paragraphs.} SWITCHE3S, See Switch Connections. absorption of switching charges, § 273. repaying advancements made by shipper for construction, § 310. tariffs regulating charges for switching, §§ 463, 493. SWITCHING COMPANIES, not subject to interstate commerce act, § 57. SYSTEM FUEL CARS, distribution during shortage, § 169, f G. T TABLE OF CONTENTS, must be shown in freight tariff, § 471, f A. express tariffs, § 526. passenger tariffs, § 639, ^ A. TAILORS, free transportation of tailor taking employes measurements, § 620. TANK CARS, transportation of oil in not unjust discrimination as against barrels, § 368, If D. TANK LINES. gauge books, § 485. "TAP LINES," allowance to, § 344. as method of rebating, § 398. TARIFFS, See Freight Tariffs, Passengee Tariffs and Schedules, Rates and Charges, Transit Peivtleges. containing rail and water or all water rates, § 495. form and size of express tariffs, § 524. must be printed, § 523. misdemeanor for carrier to fail to publish or observe, § 764. provisions governing routes and routing, § 190. refund for clerical error in; § 420. regulation by commission, § 16. should indicate routes, § 189. TECHNICAL TERMS, used in classification of freight, § 71. GBNEEAL INDEX. 1343 [References are to sections and paragraphs.] TELEGRAPH AND TELEPHONE COMPANIES, application of hours of service law to, § 725. free and reduced rate transportation of material and supplies, §§ 330, 679. to officers and employes of, § 607. TELEGRAPH COMPANIES, reports to commission by companies having government aid, §708. TEMPORARY STOPPAGE, effect on interstate transportation, § 28, ][ D. TERMINAL CHARGES, discriminations between localities in the assessment of, § 378, publication and filing, § 463, If D. tariffs regulating, § 493. TERMINAL FACILITIES, absorption of all switching charges, § 273. adequacy determined by size and importance of point, § 264. allowances for, as medium of rebating, § 397. carrier not required to consent to use of tracks by competing road, § 268. carriers not required to deliver freight to points on lines of another carrier, § 270. charges for, §§ 273-278. collection by carrier of less than carload shipments at point of origin, § 271. commission without authority over services affecting state trans- portation, § 283. demurrage, § 276. discrimination in, §§280, 369. distribution of consignments held in storage, § 269. duty of carrier to furnish adequate, § 263. for live stock, § 281. jurisdiction of commission over, § 282. regulations for publication of service and charges, § 278. rules to insure safety of terminal, § 265. storage charges, § 275. switch connections, § 272. transfer charges, § 274. use of, in interchange of traffic between connecting carriers, §667. 1244 GENERAL IITOEX. [References are to sections and paragra-piis.l TERMINAL RAILROADS, allowances to, as a medium of rebating, § 347. as parties to joint tariffs, § 502. jurisdiction of commission over, § 37. right to participate in joint tariff, § 342. sole ownership creates no presumption of illegality of transac- tion, § 343. TERMINAL ROUTING, right of shipper to direct, § 201. TERRITORIAL DESCRIPTIONS, in express tariffs, § 526, f F. TERRITORIES, See Intbatereitoeial Teansportation. admission as states renders local commerce subject to state laws, § 50, T[ C. control of Congress over transportation in, § 29, ff A, B. effect on jurisdiction of commission on admission as state, § 408, 1[M. injuries to employes in, under employers' liability act, § 742. regarded as states in commerce law, § 28. THROUGH FARES, See Passengee Faees. THROUGH RATES, defined, § 80, f C. method of determining, § 89. THROUGH ROUTE, See Connecting Caeeiees. defined, § 180. establishment of, §§ 181, 187. THROUGH TICKETS, See Tickets. TICKET BROKERAGE, as means of unjust discrimination and preference, § 383. TICKETS, See Caeeiees of Passengers, Stop-ovee. error in sale of, § 677. excursion, § 382, UU J, K. extensions of time on limited, § 571. failure to validate, § 570. GENERAL INDEX. 1345 [References are to sections and paragraphs.] TICKETS— Continued. for transportation and meals, hotel accommodations &c., § 578. honored by wrong line, § 577. issuance of mileage, excursion or commutation, optional, § 563, joint interchangeable five thousand mile, § 565. jurisdiction of commission over, § 587. limitation of time in, § 572. mileage excursion and commutation, § 563. party rate, § 564. redemption of unused, § 575. refund of unused portion of round trip, § 576. requirement that passenger shall purchase, § 561. round trip on certificate plan, § 566. sale of, after departure of Jast train on selling date, § 590. wash-outs, extension of limited tickets on account of, § 571, % B. stop-over privileges in case of illness, § 571, ^ A. through tickets where no joint fares apply, § 554. use of, by land companies, § 588. validation in case of illness or death, § 570, TJ B. TIME, extensions and limitation of, in tickets, §§ 571, 572. TITLE PAGE, tariff publications, § 494, f D, § 495, ^ A. express tariffs, § 524. freight tariffs, § 470. passenger tariffs, §§ 638, 639. of express tariffs must contain I. C. C. numbers and cancellations, § 525, ]i B. must contain name of company, § 5^5, ^ A. tariff indexes, § 535, ^ C. TRACKAGE ARRANGEMENTS, as affecting route of shipment, § 2Q0. TRACK CONNECTION, See Inteechangb of Teajetic. TRAFFIC, volume of, as element in making rate, § 82, ]\ T. TRAFFIC ASSOCIATIONS, among carriers, § 680. application of Sherman anti-trust law to, § 746. liability of members of for unreasonable rate, § 440. 1346 GENERAL INDEX. [References are to sections and paragraphs^ TRAIN-LOAD RATES, reasonableness of, § 86, \l B. TRANSFER CHARGES, charges generally, § 274. included in freight tariffs, § 463, ^ L. refund of, § 412, f D. TRANSFER COMPANIES, right to issue passes to employes of, § 617, ^ C. TRANSIT PRIVILEGES, allowance optional, § 228. charges for allowance of, § 225. charges for must be shown in tariffs, § 465. compressing cotton, § 224. contract with shipper for allowance, § 241. discrimination in granting, § 376. "floating" cotton, § 226. jurisdiction of commission over, § 245. legality of, §224. loss of privilege, § 231. milling and manufacturing, § 222. milling where road hauling raw material controlled by owner, §235. no renewal after expiration of time specified, § 232. not demandable as matter of right, § 229. not given retroactive effect, § 234. publication of, in freight tariffs, § 463, If H. publication of rules and regulations relating to, § 243. rate on reshipped commodity, § 230. reasonableness of reconsignment charges, § 225, U C. reconsignment, § 223. reconsignment at higher than proportional rate, § 238. reconsignment of part Iqts at Shipper's order, § 236. reconsignment of shipments injured or refused by consignees, §240. reconsignment rules not subject to cancellation at carrier's option, §242. reshipping rate from primary grain market, § 239. stopping stock in transit, § 227. storage creating distributing point for private industry, § 237. substituting tonnage at transit point, § 233. unjust discrimination in allowance of, § 244. GENERAL INDEX. 1347 [References are to sections and paragraphs.'] TRANSPORTATION, commission without authority to compel performance, § 259. defined, §§ 26, 214, U B. TRESPASS, commission without authority to allow reparation in ease of, § 408, If I. TROOPS, See SoLDiEES. XJ UNAVOIDABLE ACCIDENT, See Act of God. UNDERCHARGES, commission without authority to compel shippers to pay, § 309, IfB. for transportation, § 309. UNIFORM ACCOUNTS, See AcootiNTS. UNIFORM BILL OF LADING, forms of, § 131. rates where shipments are tendered with other than uniform bill, § 86, f P. steps in direction of, § 131. UNIFORMS, passes to tailors taking measures for, § 620. UNITED STATES, free and reduced rate transportation for, § 317. for officers and troops, §§ 609, 610. passes to caretakers of property transported for, § 602, ^ G. rates of transportation for, need not he published, § 655. right to party rate in transportation of soldiers, § 564, If C. tariffs covering transportation for, § 487. UNJUST DISCRIMINATIONS, See Discrimination. UNLAWFUL PRIVILEGE, claim for damages cannot be based on, § 418. 1348 GBNEKAL INDEX. [References are to sections and paragraphs.^ V VACANCIES, in Interstate Commerce Commission, how filled, § 3, ^ G. VALIDATION, tickets, § 569, 570. VEGETABLES, weight of standard packages, § 156, f C. VENTILATION, See Refrigeration. duty of carrier to furnish facilities, § 212. liability of carrier for facilities furnished, § 214. jurisdiction of commission over facilities and charges, § 221. W WAGON TRANSPORTATION, not subject to control of commission, § 54. demurrage charges, § 304. WAR, preferences in expedition of military traffic in time of, § 381. WATER CARRIERS, jurisdiction of commission over, § 43. WEATHER, demurrage waived by inclemency of, § 304, f C. WEIGHTS AND WEIGHING, actual weights conclusive and not weights marked on bill of lading, § 150. allowance for weight of racks &c. on flat cars, § 149. as element in making rate, § 82, ^ G. billing at net weights, § 152. carload minima in connection with refrigeration service, § 160. charging for weight not carried, § 147. duty of carrier to establish minima weight consistent with ca- pacity of car, § 139. duty of carrier to furnish cars to carry minimum weight, § 138. false weighing, § 158. estimated weights on standard packages, § 156. fixing different minima weights for cars with and without re- frigeration service, § 142. general regulations relating to movement of traffic recommended, §161. GENEEAL INDEX. 1249 [References are to sections and paragraphs.] WEIGHTS AND WEIGHING— Ooreiimted. light loading of new cars on first trip, § 155. minima weights for less than carload shipments, § 144. minimum weights may not vary with size of car furnished, § 140. overcharge account of excess weight, § 159. due to error in weight, § 408, ^ J. penalty for loading cars heyond capacity, § 154. reweighing shipments, § 153. right of carrier to establish minima weights, § 137. right of carrier to fix as minimum weight the marked capacity of the car, § 141. right of initial carrier to furnish any available equipment in absence of agreement with shipper under a local any-quantlty rate without regard to tariffs of connecting lines, § 146. right of shipper to rely on bill of lading weight when ascertained at point of origin, § 151. right to assess weight charges on purported weights instead of actual weights, § 148. rules fixing higher minimum requirement than practice governed by M. C. B. rules will permit, § 143. rules where different capacity cars are furnished than ordered by shippers, § 157. weighing and classification not classed as elevation, § 246. weighing rules to be stated in schedules, § 136. weights at point of origin and destination, § 145. WHARFAGE FACILITIES, discrimination in granting, § 670, ^ E. WITNESSES, attendance before commission, § 787. commission may invoke aid of court to compel attendance, § 787, HB. immunity of, § 787, If N. incriminating testimony, S 787, ^ M. rules of commission as to requiring attendance, § 796. WORDS AND PHRASES, See Dbkinitions. used in tariffs, § 466. WRECKING CREWS, application of hours of service law to, § 733. 1250 GENERAL INDEX. [lieferences are to sections and paragraphs.'] WRECKS, extension of limited tickets on account of, § 571, If D. regulations where wreck involves car containing explosives, §457. Y YARDS, regulations for handling cars containing explosives in, § 457. YOUNG MEN'S CHRISTIAN ASSOCIATIONS, free and reduced rate transportation of secretaries, § 595. KF 2289 B26 Author Vol. Baxnes, Harry Cleveland Title Copy Interstate Transportation.