illlllliliillllli! i i Ml l' 'l" i! ill; iiilillii m^l i( iliiii ISi: 1':^ CORNELL UNIVERSITY LIBRARY Cornell University Library HE2710.A25 B26 1910 V 1 Interstate transDOi^tjon: olin 3 1924 032 497 558 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/cu31924032497558 INTERSTATE TRANSPORTATION A TREATISE ON THE FEDERAL REGULATION OF INTERSTATE TRANSPORTATION AND COMMON CARRIERS INCLUDING Jurisdiction of the Interstate Commerce Commission REVISED TO DATE Containing the Mann-Elkins Bill of June i8, igio BY HARRY C. BARNES Of the Cincinnati Bar VOL. I INDIANAPOLIS THE BOBBS-MERRILL COMPANY Publishers. Copyright 1910 HARRY C. BARNES NOTE TO THE SECOND PRINTING. The entire first printing of "Interstate Transportation" having been exhausted immediately upon publication, the author and the publishers took advantage of this fact and de- cided to make such changes in the second printing of the book as would bring it down to date, including the Mann- Elkins Bill of June 18, 1910, which created a Gommerce Court and further amended the Act to Regulate Commerce. The opportunity for a new printing, which has been created by the continued demand for the work, has been fully utilized and the law and decisions have been brought down to the minute. The favorable reception given to the original work and its immediate sale has encouraged the author to undertake this revision, which has proven no small task. The scope of the law has been largely increased and the jurisdiction of the Interstate Commerce Commission has been considerably amplified and more fully defined, thus effecting a number of important changes. Certain jurisdiction, which the Commission heretofore exercised by implication or by virtue of judicial interpretation and construction, has been expressly conferred by the recent amendment. All of these changes are fully trSated of iand discussed under their respective chapters. Some of the sections have been rewritten and new sections have been added, including all material decisions rendered since the last printing. All matter which has been clearly superseded by the late amendment has been eliminated, thus presenting the subject as consistently with the present law ' as is possible in the absence of any judicial interpretation of the late act. The author again acknowledges valuable assistance at the hands of his brother, Frederick George Barnes. H. C. B. Cincinnati, 0., November 25, 1910. m PERFACE. 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 most of the literature on the sub- ject is in fragmentary form and the 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. IV TABLE OF CONTENTS. VOLUME I. CHAPTEK. I. II. III. IV. VI. VII. VIII. IX. -X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. XXIX. PAGE. Historical Antecedents 1 Genesis, Organization and Internal Arrangement of the Interstate Commerce Commission 18 Nature and Legal Status, of Interstate Commerce Com- mission 54 Transportation and Common Carriers subject to the Jurisdiction of the Interstate Commerce Commission. 59 Transportation and Common Carriers not subject to the Jurisdiction of the Interstate Commerce Commission. 119 Classification of Freight and Freight Classifications... 140 Freight Rates and Charges 175 Long-and-Short-Haul Clause and Relief from Operation thereof 267 Bills of Lading and Contracts of Shipment 272 Weights and Weighing " 283 Equipment — Car Supply and Distribution — Car Short- age 308 Routes and. Routing 353 Refrigeration and Ventilation and Charges Therefor . . 373 Transit Privileges 380 Elevation . . '. 402 Contracts between Carriers and Shippers and the Pub- lic in General - 407 Terminal Facilities, Regulations and Charges 420 Demurrage or "Car-Service" 440 Payment for Transportation 469 Limitation of Carrier's Liability 477 Free and Reduced-Rate Transportation of Property 481 Allowances by Carriers for Services Rendered or In- strumentalities Furnished by Owners of Property Transported 492 Allowances to Terminal Railroads" and Boat Lines Owned or Controlled by the Shipper 497 Switches and Switch Connections 505 Embargoes 511 Discriminations, Preferences and Advantages 513 Rebates and Concessions 566" Damages and Reparation 578 Transportation of Explosives 642 V. 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 are to pages.1 Alleged Unlawful Rates, K. Cy. Abilene case (Texas & P. Ry. V. Abilene Cotton Oil Co.), 204 U. S. 426, 58, 258, 339, 409 438, 581, 585, 587, 589 590, 600, 602, 616 Acme Cement Co. v. Chicago & Alton Rd., 17 I. C. C. R. 220, _ 121 V. Chicago Great Western Ry., 18 I. C. C. R. 19, 550 V. Lake Shore & M. S. Ry., 17 I. C. C. R. 30, 178, 179, 217, 226, 228 Advances In Freight Rates, 9 I. C. C. R. 382, 194 Alaska Water Carriers, 19 I. C. C. R. 81, 139 Alexander v. Chicago, Burling- ton & Q. Ry., 1§ I. C. C. R. 103, 634 M. & B. Rd., 8 I. C. C. R. 121, 69, 384 Allen V. Chicago, M. & St. P. Ry., 16 I. C. C. R. 293, 597, 610 Allen & Lewis v. Oregon R. &- N. Co., 98 Fed. Rep. 16, 106 Fed. Rep. 265, 218 Allowances, Elevators Union Pacific Rd., 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Allowances on Transfer of Sugar, 14 I. C. C. R. 619, 493 Alpha Portland Cement Co. v. D. L. & W. Rd., 19 I. C. C. R. 297, 626 American Bankers Association v. American Express Co., 15 - I. C. C. R. 15, ■ 118 American Creosotlng Works v. 111. Cent. Rd., 15 I. C. C. R., 160, 321, 460 Vll Vlll TABLE OF CASES. American Express Co. v. U. S., 212 U. S. 522, 490 American Fruit Union v. Cin- cinnati, N. O. & T. P. Ry., 12 I. C. C. R. 411, 631 American Grass Twine Co. v. C. St. P. M. & O. Ry., 12 I. C. C. R. 141, 610 American Lumber & Mfg. Co. V. Southern Pac. Ry., 14 I. C. C. R. 561, 286, 303, 304, 305 American Warehousemen's As- sociation V. 111. Cent. Rd., 7 I. C. C. R. 556, 395, 424, 451, 591, 698, 704 American & O. Ins. Co. v. Bales of Cotton, 1 Pet. 511, 74 Ames-Brooks Co. v. Rutland Rd., 16 I. C. C. R., 479, 621 Anderson, Clayton & Co. v. St. L. & S. P. Rd., 17 I. C. C. R. 12, 392 Anderson TuUy Co. v. C. R. I. & P. Ry., 18 I. C. C. R. 48, 200 Andrews Soap Go. v. P. C. C. & St. L. Ry., 4 I. C. C. R. 41, 161 Angle V. C. & St. P, Ry., 151 U. S. 1, 559 Ann Arbor Rd. y. R. R. Comm. Ohio, 8 Nisi Prius Rep. 233, 448 Annapolis & Baltimore Rd., Re, 1 I. C. R. 315, 93 Anthony v. Phila. & Reading Ry., 14 I. C. C. R. 581, 184 Anthony Salt Co. v. Mo. Pac. Ry., 5 I. C. C. R. 299, 215 Apollon, The,- 9 Wheat. 362, 441 Arkansas Fuel Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 95, 597 Armour Packing Co. v. U. S., 209 TJ. S. 56, 153 Fed. Rep. 135, 132, 409, 414, 568, 569, 577, 776 Artz V. Seaboard Air Line, 11 I. C, C. R. 158, 822, 823 [References are to pages.] Associated Jobbers Los Ange- les V. A. T. & S. P. Ry., 18 I. C. C. R. 310, 510 Associated Wh. Grocers St. Louis V. Mo. Pac. Ry., 1 I. C. C. R. 156, 558, 875 Atchison T. & S. F. Ry. v. Denver & N. 0. Rd., 110 U. S. 667, 236 V. Holmes, 18 Okla. 92, 411 V. United States, 177 Fed. Rep. 114, 981 Atlanta K. & N. Ry. v. Home, 106 Tenn. 73, 419 Atlanta & West Point Rd. Tar- iffs, 3 I. C. C. R. 24, 180 Augusta & Southern Rd. v. W. & T. Rd., 74 Fed. Rep. 523, 95 Avery Mfg. Co. v. A. T. & S. F. Ry., 16 I. C. C. R. 20, 220 Baer Bros v. Missouri Pac. Ry., 13 I. C. C. R. 329, 74, 87, 617, 971 Baird v. St. L. I. M. & S. Ry., 41 Fed. Rep. 592, 273, 297 Baltimore & Ohio Rd. v. Grant, 98 U. S. 398, ^ 123 V. Hamburger, 155 Fed. Rep. 849, 603, 848 V. U. S. ex rel. Pitcalrn Coal Co., 215 U. S. 164, 339 V. United States, 215 U. S. 481, 43S Banner Milling Co. v. N. Y. C. & H. R. R., 14 I. C. C. R. 398, 181 Barden & Swarthout v. Lehigh V. Rd., 12 I. C. C. R. 194, 507, 635 Bartles Oil Co. v. C. M. & St. P. Ry., 17 I. C. C. R. 146, 230 Barton v. Barbour, 104 U. S. 126, 115 TABLE OF CASES. IX [References are to pages.] Bates V. Pennsylvania Rd., 3 I. C. C. R. 435, 545 Beatrice Creamery Co. v. 111. Cent. Rd., 15 I. C. C. R. 109, 411 Beatrice Moran, The, v. New Orleans, 112 U. S. 69, 66 Beekman Lumber Co. v. K. C. Ry., 17 I. C. C. R. 86, 383 V. St. Louis S. W. Ry., 14 I. C. C. R. 532, 456 Beggs V. Wabash Rd., 16 I. C. C. R. 208, 286, 306 Bell Co. V. Baltimore & Ohio S. W. Rd., 9 I. C. C. R. 632, 535 Bennett v. M. & St. P. Ry., 15 I. C. C. R. 301, 292 Big Blackfoot Milling Co. v. Nor. Pac. Ry., 16 I. C. C. R. 173, . 690 Bigbee & Warrier Packet Co. V. Mobile & Ohio Rd., 60 Fed. Rep. 545, 532 Bills of Lading, Re, 14 I. C. C. R. 346, 274, 275, 280 Bitterman v. Louisville & N. Rd., 207 U. S. 205, 144 Fed. Rep. 34, 559, 847 Black Horse Tobacco Co. v. 111. Cent. Rd., 17 I. C. C. R. 588, 263, 623 Black Mountain Coal Co. v. Southern Ry., 15 I. C. C. R. 286, 552 Blackman v. Southern Ry., 10 I. C. C. R. 352, 429, 704 Blackwell M. & E. Co. v. M. K. & T. Ry., 12 I. C. C. R. 24, 532 Blinn Lumber Co. v. So. Pac. Ry., 18 I. C. C. R. 430, 408, 473 Blume & Co. v. Wells-Fargo & Co., 15 L C. C. R. 53, 595 Board Mayor and Aldermen Bristol v. V. & S. W. Ry., 15 I. C. C. R. 453, 213 Board of Trade v. N. C. & St. L. Rd., 8 I. C. C. R. 503, 180, 189 Board of Trade v. Norfolk & W. Ry., 16 I. C. C. R. 12, 228 Board of Trade Kansas Cy. v. C. B. & Q. Ry.,. 12 I. C. C. R. 173, 387 Board of Trade Lynchbijrg v. Old Dominion S. S. Co., 6 I. C. C. R. 215, 615 * Board of Trade Troy v. Ala. Mid. Ry., 6 I. C. R. 1, 114 Board of Trade Union v. C. M. & St. P. Ry., 1 I. C. C. R. 215, 522 Boering v. Chesapeake Beach Rd., 193 TJ. S. 442, 880 Boise Commercial Club v.. Adams Express Co., 17 I. C. C. R. 115, 208 Boston Chamber of Commerce v. Lake Shore Ry., 1 I. C. C. R. 436, 177 Boston Fruit Exchange v. N. Y. & N. E. Rd., 4 I. C. C. R. 664, 213 V. same, 5 I. C. C. R. 1, 208 Bovaird Supply Co. v. A. T. & S. F. Ry., 13 L C. C. R. 56, 474 Bowman v. Chicago & N. W. Ry., 125 U. S. 465, 66, 436, 437, 445, 446 Brabham v. Atlantic Coast Line, 11 I. C. C. R. 464, 188, 823 Brady v. Pennsylvania Rd., 2 I. C. C. R. 131, 237 Bregman & Co. v. Pennsyl- vania Rd., 15 I. C. C. R. 478, 370 Brennan v. TitusviUe, 153 TJ. S. 289, 66 Brewer v. Central of Ga. Rd., 84 Fed. Rep. 258, 53 Brewer & Hanleiter v. L. & N. Rd., 7 I. C. C. R. 224, 188 TABLE OF CASES. 56 Brimson, Application of I. C. C. for Order on, 4 I. C. C. R. 315, Brown v. Houston, 144 U. S. 622, 65, 66 Brown V. Maryland, 12 Wheat. 419, 2 Brownell v. Columbus & Cin- cinnati Midland Rd., 5 I. C. C. R. 638, 154, 157, 204 Brunswick-Balke Co. v. C. M. & St. P. Ry., 18 I. C. C. R. 165, 292 Buchanan v. Northern Pacific Ry., 5 I. C. C. R. 7, 194, 196 Buckeye Buggy Co. v. C. C. C. & St. L. Ry., 9 I. C. C. R. 620, 535 BuUard v. Northern Pacific Ry., 10 Mont. 168, 418 Bulte Milling Co. v. Chicago & Alton Rd., 15 I. C. C. R. 351, 222, 229 Burgess v. Transcontinental Freight Bureau, 13 I. C. C. R. 668, 610 Business Men's Association v. C. St. P. M. & O. Ry., 2 I. C. C. R. 52, 222, 226 Business Men's League St. Louis V. A. T. & S. F. Ry., 9 I. C. C. R. 318, 182, 204, 219 California Commercial Assn. V. Wells, Fargo & Co., 14 I. C. C. R. 422, 536 V. same, 16 I. C. C. R. 458, 536 Cambria Steel Co. v. Great Northern Ry., 12 I. C. C. R. 466, 289 Canadian Pacific Railway Rates, 8 I. C. C. R. 71, 99, 139 [References are to pages.] Cannon v. Mobile & Ohio Rd., 11 I, C. C. R. 537, 227 Capehart v. Louisville & Nash- ville Rd., 4 I. C. C. R. 265, 121 Capital City Gas Co. v. Cent. V. Ry., 11 I. C. C. R. 104, 517 Car Shortage, Re, 12 I. C. C. R. 561, 309, 352, 945 Cardiff Coal Co. v. C. M. & St. P. Ry., 13 I. C. C. R. 460, 244, 550 Carr v. Northern Pacific Ry., 9 I. C. C. R. 1, 206, 314, 315, 521 525, 526, 544, 773 Carstens Packing Co. v. Nor. Pac. Ry., 14 I. C. C. R. 577, 303 V. Oregon Ry. & Nav. Co., 15 I. C. C. R. 482, 367, 625 V. same, 17 I. C. C. R. 125, 595, 604 Cary v. Eureka Springs Ry., 7 I. C. C. R. 286, 135, 245 Cassatt V. Mitchell C. & C. Co., 150 Fed. Rep. 32, 88 Castle V. Baltimore & Ohio Rd., 8 I. C. C. R. 333, 522 Cattle Raisers Assn. v. M. K. & T. Ry., 11 I. C. C. R. 296, 185, 212, 226 Cattle Raisers Assn. of Texas V. C. B. & Q. Ry., 11 I. C. C. R. 277, 431 Cattle Raisers Assn. of Texas V. Ft. W. & D. C. Ry., 7 I. C. C. R. 513, 432, 518, 519 Cator V. Southern Pacific Ry., 6 I. C. C. R. 113, 557, 851 Cedar Hill C. & C. Co. v. C. & S. Ry., 15 I. C. C. R. 546, 387 V. same, 16 I. C. C. R. 387, 222, 390 Central Commer. Co. v. M. J. & K. C. Ry., 15 L C. C. R. 25, 614 Central of Ga. Rd. v. Murphey, 196 U. S. 194, 437, 446 TABLE OF CASES. XI [References are to pages.] Central Stock Yards v. L. & N. Rd., 192 U. S. 568, 118 Fed. Rep. 113, 315, 439 Central Trust Co. v. St. L. A. & F. Ry., 40 Fed. Rep. 426, 116 Central Yellow Pine Assn. v. 111. Cent. Rd., 10 I. C. C. R. 505, 185, 188, 190, 191, 193 212, 214, 498, 573, 992 V. V. S. & P. Ry., 10 I. C. C. R. 193, 381, 498, 573, 702, 773 Chamber of Commerce v. C. M. & St. P. Ry., 7 I. C. C. R. 481, 199 Chamber of Commerce v. Flint & P. M. Rd., 2 I. C. C. R. 553, 533 Chamber Comm. Milwaukee v. C. R. I. & P. Ry., 15 I. C. C. R. 460, 551 Chamber Comm. Minneapolis V. Great Nor. Ry., 4 I. C. R. 230, 549 Chandler v. F. S. W. Rd., 13 I. C. C. R. 473, 123 Chappell V. Louisville & Nash- ville Rd., 19 I. C. C. R. 56, 314, 315, 544 Charge Grand Jury, 66 Fed. Rep. 146, 858 Charge Grand Jury, 151 Fed. Rep. 834, 66 Charges on Fruit, 10 I. C. C. R. 360, 309, 312, 315, 374 Charges on Fruit, 11 I. C. C. R. 129, 309, 319, 375, 700 Charlotte Shippers v. Southern Ry., 11 I. C. C. R. 108, 181, 230 Chesapeaku & Ohio Ry. v. Kentucky, 179 U. S. 388, 561 V. Standard Lumber Co., 174 Fed. Rep. 107, 414 Chicago & Alton Rd. v. Uni- ted States, 156 Fed. Rep. 558, 493 Chicago, Burlington & Q. Ry. V. United States, 209 U. S. 90, 157 Fed. Rep. 830, 577 Chicago Livestock Exch. v. C. G. W. Ry., 10 I. C. C. R. 428,' 184, 198 Chicago Lumber Co. v. Tioga Ry. Co., 16 I. C. C. R. 323, 197, 213, 220, 519 Chicago & M. Electric Rd. v. 111. Cent. Rd., 13 I. C. C. R. 20, 85 Chicago & N. W. Ry. v. Os- borne, 52 Fed. Rep. 912, 228 Chicago, R. I. & P. Ry. v. Hub- bell, 54 Kas. 232, 411 Chicago, St. P. & K. C, Ry. Rates, 2 I. C. C. R. 231, 197 Chickasaw Compress Co. v. G. C. & S. F. Ry., 13 I. C. C. R. .187, 197 Chiles V. Chesapeake & Ohio Ry., 125 Ky. 299 (U. S. Sup. Ct.), 561 China & Japan Trading Co. v. Georgia Rd., 12 I. C. C. R. 236, 212, 213 Cincinnati Chamber of Com- merce V. B. & O. S. W. Rd., 10 I. C. C. R. 378, 422 Cincinnati, H. & D. Ry. v. I. C. C, 206 U. S. 142, 146 Fed. Rep. 559, 144 Cincinnati, N. O. & T. P. Ry. V. I. C. C, 162 U. S. 184, 91, 92, 126, 129, 249, 519 Cist V. Michigan Central Rd., 10 L C. C. R. 217, 139, 826 City Gas Co. v. B. & O. Rd., 11 I. C. C. R. 371, 631 City of Spokane v. Nor. Pac. Ry., 15 I. C. C. R. 376, 192 City Council Atchison v. Mo. Pac. Ry., 12 I. C. C. R. Ill, 547 xu TABLE OF CASES. [References are to pages.] Class Rates St. Louis & Texas, 11 I. C. C. R. 239, 185, 194 Clements v. Louisville & Nash- ville Rd., 153 Fed. Rep. 979, 58, 635, 676 Clergymen, Passes to, 15 I. C. C. R. 45, 870 Cleveland C. C. & St. L. Ry. V. Hirsh Steel Co. (6 Cir. TJ. S.), 415 Coe V. Errol, 116 TJ. S. 517, 69, 87, 105 Coffeyville Brick Co. v. St. L. & S. P. Rd., 12 I. C. C. R. 498, 208, 210 Cohens v. Virginia, 6 Wheat. 264, . 76 Colorado Fuel & Iron Co. v. So. Pac. Ry., 6 I. C. R. 488, 184, 196, 214, 222, 228 367, 544, 698, 707 Columbia Conduit Co. v. Pennsylvania, 90 Pa. 307, 102 Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean 70, 2 Columbus I. & S. Co. v. K. & M. Ry., 178 Fed. Rep. 261, 258 Commercial Club v. C. R. I. & P. Ry., 6 I. C. R. 647, 549 Commercial Club Omaha v. An- derson & S. R. Ry., 18 I. C. C. R. 532, 610 V. C. & N. W. Ry., 7 I. C. C. R. 386, 58, 418 V. Southern Pac. Ry., 18 I. C. C. R. 53, 612 Commercial Coal Co. v. B. & O. Rd., 15 I. C. C. R. 11, 217, 218 Commutation Tickets School Children, 17 I. C. C. R. 144, 831 Complaint Illinois Central Rd., 12 I. C. C. R. 8, 876 Connor v. Mobile & Ohio Rd., 11 I. C. C. R. 537, 528 Consol. Forwarding Co. v. So. Pac. Ry., 9 I. C. C. R. 182, 312 v. same, 10 I. C. C. R. 590, 213, 968 Cooley V. Port Wardens (Port Wardens Case), 12 How. 299, 66, 436, 445 Coomes & McGraw v. C. & St. P. Ry., 13 I.. C. C. R. 192, 455, 597 Copper Queen C. M. Co. v. B. & 0. Rd., 18 I. C. C. R. 154, 229, 614 Corn Belt Meat P. A. v. C. B. & Q. Ry., 14 I. C. C. R. 376, 230, 262 Corn Export Rates E. and W. Miss. River, 8 I. C. C. R. 185, 551, 774 Com and Corn Products Rates, 11 I. C. C. R. 227, 198 Corporation Comm. Okla. v. C. R. I. & P. Ry., 17 I. C. C. R. 379, 935 Cosmopolitan Shipping Co. v. Hamburg-American Pac. Co., 13 I. C. C. R. 207, 109, 123 v. same, 13 I. C. C. R. 266, 109, 123, 776, 950 Cotton Rates Re, 8 I. C. C. R. 121, 69, 384 Cound V. Atchison, T. & S. F. Ry., 173 Fed. Rep. 527, 991 Council v. Western & Atlantic Rd., 12 I. C. C. R. 339, 58, 562, 605 Counsil v. St. Louis & S. F. Rd., 16 I. C. C. R. 188, 370 Covington Stock Yards v. Keith, 139 U. S. 12S, 431 Covington & Cin. Bridge Co. v. Kentucky, 154 U. S. 204, 4 I. C. R. 649, 71, 136 TABLE OF CASES. XUl [References Cowan V. Bond, 39 Fed. Rep. 55, 2 I. C. R. 542, 385 Coxe Bros. v. Lehigh Valley Rd., 4 I. C. C. R. 535, 141, 545 Cozart V. Southern Ry., 16 I. C. C. R. 226, 560 Crane Iron Works v. C. R. R. N. J., 17 I. C. C. R. 514, 504 Crane Rd. v. Philadelphia & R. Ry., 15 I. C. C. R. 248, 498, 504 Crews V. Richmond & Dan- ville Rd., 1 I. C. C. R. 401, 211, 383 Crosby & Meyers v. Goodrich Transit Co., 17 I. C. C. R. 176, 637 Crutcher v. Kentucky, 141 U. S. 47, 66 Cudahy Packing Co. v. C. & N. W. Ry., 12 I. C. C. R. 446, 448, 701 Curry v. K. & C. P. Ry., 58 Kas. 6, 417 Cutting V. Florida Ry. & Nav. Co., 46 Fed. Rep. 641, 935 Daish & Sons v. C. D. & C. Ry., 9 I. C. C. R. 513, 511, 512 Dallas Freight Bureau v. M. K. & T. Ry., 12 I. C.C. R. 427, 212, 257 V. Gulf, C. & S. F. Ry., 12 I. C. C. R. 223, 226 Daniel Ball, The, 10 Wall. 557, 69, 70, 86 Daniels v. C. R. I. & P. Ry., 6 I. C. C. R. 458, 270, 522 Davenport v. Southern Ry., 11 I. C. C. R. 650, 180 Davies v. Illinois Central Rd., 16 I. C. C. R. 376, 301 Davis v. Gray, 16 Wall. 203, 115 are to pages.] Debs, In re, 158 U. S. 564, 66 Delaware, Lackawanna & W. Rd. V. I. C. C, 155 Fed. Rep. 512, 436 V. same, 166 Fed. Rep. 499, 537 V. same, 169 Fed. Rep. 894, 538 Delaware State Grange v. N. Y. P. & N. Rd., 4 I. C. C. R. 588, 182, 196, 203, 213, 526 Delaware & Hudson Co. v. Pennsylvania, 2 I. C. R. 222, 70 De Lima v. Bldwell, 182 U. S. 1, 74 Demurrage Charges Private Tank Cars, 13 I. C. C. R. 378, 453 Denison L. & P. Co. v. M. K. & T. Ry., 10 I. C. C. R. 337, 215 Derr Mfg. Co. v. Pennsylvania Rd., 9 I. C. C. R. 646, 163 Detroit Board of Trade v. G. T. Ry. Canada, 2 I. C. C. R. 315, 255, 533 Detroit G. H. & M. Ry. v. I. C. C, 74 Fed. Rep. 803, 422 Devore v. Bridge Co., 3 Am. L. R. 79, 2 Dewey Bros. v. Baltimore & Ohio Rd., 11 I. C. C. R. 481, 361, 370, 624 Diamond Mills Co. v. B. & M. Rd., 9 I. C. C. R. 311, 386, 390 Diehl & Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 190, 619 Dietz V. Mission Transfer Co., 95 Cal. 92, 102 Differential Freight Rates, Re, 11 I. C. C. R. 13, 1037 Dobbs V. Louisville & Nash- ville Rd., 18 I. C. C. R. 210, 605 Dorr V. United States, 195 U. S. 138, 74, 139 Douglas & Co. V. C. R. I. & P. Ry., 16 I. C. C. R. 233, 381, 899, 547 TABLE OE CASES. [References are to pages.] Jownes V. Bidwell, 182 U. S. 244, 139 Duke V. St. Louis & S. F. Rd., 172 Fed. Rep. 684, 991 Duluth Log Co. V. C. M. St. P. & 0. Ry., 16 I. C. C. R. 38, 297, 298 V. M. & I. Ry., 15 I. C. C. R. 192, 494 Duluth & Iron Range Ry. v. C. St. P. M. & 0. Ry., 18 I. C. C. R. 485, 363, 628 Duncan v. Atchison, T. & S. F. Ry., 6 L C. C. R. 85, 58, 143, 155, 184, 204, 217 410, 472, 596, 604, 822, 823 Duncan & Co. v. N. C. & St. L. Ry., 16 I. C. C. R. 590, 206 Durousseau, The, v. United States, 6 Cranch 307, 336 Dwight V. Brewster, 1 Pick. 50, 62 E East Tennessee, V. & G. Ry. V. I. C. C, 99 Fed. Rep. 52, 950 Eaton V. Cincinnati, H. & D. Rd., 11 I. C. C. R. 619, 590, 605, 631, 634, 635 Eau Claire Board of Trade v. C. M. & St. P. Ry., 5 L C. C. R. 264, 186, 187, 522 Eddleman v. Midland Valley Rd., 13 I. C. C. R. 103, 434 Eddy V. Lafayette, 163 XJ. S. 456, 116 Edmunds v. Illinois Central Rd., 80 Fed. Rep. 78, 638 Edwards v. N. C. & St. L. Ry., 12 L C. C. R. 247, 560 Eichenberg v. Southern Pac. Ry., 14 I. C. C. R. 250, 591 El Paso & Northern Ry. v. Gutierrez, 215 U. S. 87, 988 Elevator Allowances Union Pac. Rd., 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Elvey V. Illinois Central Rd., 3 I. C. C. R. 652, 528 Empire State Cattle Co. v. A. T. & S. F. Ry., 210 U. S. 1, 147 Fed. Rep. 457, 368 Employers Liability Cases, 207 U. S. 463, 76 Enterprise Mfg. Co. v. Georgia Rd., 12 I. C. C. R. 451, 213, 548 Enterprise Trans. Co. v. Penn. Rd., 12 I. C. C. R. 327, 100, 101, 102, 137, 354 Escanaba Co. v. Chicago, 107 U. S. 678, 66 Eschner v. Pensylvania Rd., 18 I. C. C. R. 60, 830, 851 Evans V. Northern Pacific Ry., 6 I. C. C. R. 520, 226 Ex parte Koehler, 30 Fed. Rep. 867, 69, 86, 120, 131 Ex parte McCardle, 7 Wall. 514, 122 Ex parte Morgan, 20 Fed. Rep. 305, 72 Ex parte Tyler, 149 U. S. 164, 115 Exchange Free Transportation, 12 I. C. C. R. 40, 134, 135, 861, 877 Export Rates Corn E. and W. Miss. River, 8 I. C. C. R. 185, 551, 774 Export Shipping Co. v. Wa- bash Rd., 14 I. C. C. R. 437, 536, 537 Export and Domestic Rates, 8 I. C. C. R. 214, 776 Export and Import Tariff Pub- lication, 10 I. C. C. R. 55, 776 Express Cases, 117 U. S. 1, 315, 317 Express Co. Contracts for Men, 16 I. C. C. R. 246, 488, 878 TABLE OP CASES. XV [References are to pages.] Express Companies, Re, 1 I. C. C. R. 349, 95 Falls & Co. V. C. R. I. & P. Ry., 15 I. C. C. R. 269, 294, 474 Fargo V. Michigan, 121 U. S. 230, 66 Farmers L. & T. Co. v. Nor. Pac. Ry., 83 Fed. Rep. 249, 117 Farmers Warehouse Co. v. L. & N. Rd., 12 I. C. C. R. 457, 612 Farrar v. Southern Ry., 11 I. C. C. R. 632, 184, 185 Fathauer Co. v. St. L. I. M. & S. Ry., 18 I. C. C. R. 517, 499, 500 Federal Sugar Refining Co. v. B. & O. Rd., 17 I. C. C. R. 40, 493, 574 Field V. Southern Ry., 13 I. C. C. R. 298, 829, 835, 851 Fielder v. Missouri, K. & T. Ry., 42 S. W. (Tex.), 362, 439 First Nat. Bank Brunswick v. Yankton, 101 U. S. 129, 74 Fish Commission, Re, 1 I. C. C. R. 21, 482 Fisk & Son y. B. & M. Rd., 19 I. C. C. R. 299, 455 Fitzgerald v. Fitzgerald Co., 41 Neb. 374, 418 Flaccus Glass Co. v. C. C. C. & St. L. Ry., 14 I. C. C. R. 333, 210, 364, 624 Flint & Walling v. L. S. & M. S. Ry., 14 I. C. C. R. 336, 597, 610 Folmer & Co. v. Great North- ern Ry., 15 I. C. C. R. 33, 618 Food Products Freight Rates, 4 I. C. C. R. 48, 214 Food Products Freight Rates, 4 I. C. C. R. 79, 156. 157 Forest City Freight Bureau v. Ann Arbor Rd., 18 I. C. C. R. 205, 155 Form and Contents Rate Schedules, 6 I. C. C. R. 267, 177, 711 Fort Smith Traffic Bureau v. St. L. & S. F. Rd., 13 I. C. C. R. 651, 148, 217 Foster Lumber Co. v. A. T. & S. F. Ry., 15 I. C. C. R. 56, 181, 619 V. G. C. & S. F. Ry., 17 I. C. C. R. 385, 619 Free Transportation Newspa- per Employes, 12 I. C. C. R. 16, 861 Free Transportation, Exchange of, 12 I. C. C. R. 40, 134, 135, 861, 877 Free Transportation, B. & M. Rd., 3 I. C. C. R. 717, 874 Freeborn v. Smith, 2 Wall. 173, 122, 123 Freight Bureau Cincinnati v. C. N. O. & T. P. Ry., 7 I. C. C. R. 180, 186, 211 V. same, 6 I. C. C. R. 195, 186, 227, 638 Freight Rates Pood Products, 4 I. C. C. R. 79, 156, 157 Freight Rates Memphis and Arkansas, 11 I. C. R. R. 180, 230 Freight Rates Proposed Ad- vances, 9 I. C. C. R. 382, 194 Fruit Charges, 10 I. C. C. R. 360, 309, 312, 315, 374 Fruit Charges, 11 I. C. C. R. ■ 129, 309, 319, 375, 700' G Gallogly & Firestone v. C. H. & D. Ry., 11 I. C. C. R. 1, 120, 331, 605, 635 SVl TABLE OP CASES. [References are to pages.] Gamble Robinson Co. v. C. & N. W. Ry., 168 Fed. Rep. 161, 521 Gardner & Clark v. Southern Ry., 10 I. C. C. R. 342, 615 General Chemical Co. v. N. & W. Ry., 15 I. C. C. R. 349, 285, 286, 305, 306 General Electric Co. v. N. Y. C. & H. R. Rd., 14 I. C. C. R. 237, 417, 493, 501, 607 Georgia R. & C. Stone Co. v. Georgia Rd., 13 I. C. C. R. 401, 288, 289 Gerber v. Wabash Rd., 63 Mo. App. 145, 5 I. C. R. 458, 410 Germain Co. v. New Orleans & N. E. Rd., 17 I. C. C. R. 22, 245, 456, 610 Gibbons v. Ogden, 9 Wheat. 1, 2, 66 Giffln V. S. W. Penn. Pipe Lines, 172 Pa. 580, 102 Gillman v. Philadelphia, 3 Wall. 713, 3, 65 Gisbourn v. Hurst, 1 Salk. 249, 62 Glade Coal Co. v. B. & O. Rd., 10 I. C. C. R. 220, 183, 525, 528 541, 591, 605, 632 Gloucester Ferry Co. v. Penn- sylvania, 114 U. S. 196, 65, 138 Goldwaith Case (Gulf, C. & S. P. Ry. V. Texas), 204 U. S. 403, 69, 105, 120, 121 401, 605, 824 Gordon v. Hutchinson, 1 Watts & S. 285, 62 Grain Rates, Re, 7 I. C. C. R. 240, 214 Grain Shippers Assn. v. 111. Cent. Rd., 8 I. C. C. R. 158, 183, 186, 189, 194, 196, 611 Grand Trunk Railway Investi- gation, 3 I. C. C. R. 87, 80, 81, 99, 139 Grand Jury Charge, 66 Fed. Rep. 146, 858 Grand Jury Charge, 151 Fed. Rep. 834, 66 Green Bay Bus. Men's Assn. v. L. S. & M. S. Ry., 15 I. C. C. R. 59, 255 Gulf, C. & S. F. Ry., Re, 13 I. C. C. R. 134, 984 v. Hefley, 158 U. S. 98, 408, 411, 419, 438, 472, 621 V. Texas, 204 U. S. 403, 69, 105, 120, 121, 401, 605, 824 Gumbel v. Pitkin, 124 U.. S. 131, 115 Gund V. Chicago, Burlington & Q. Ry., IS I. C. C. R.364, 406, 415 Gustin V. Atchison, T. & S. F. Ry., 8 I. C. C. R. 277, 222 H Hafley v. St. Louis & S. F. Rd., 15 I. C. C. R. 245, 184 Hagar Iron Co. v. Pennsylva- nia Rd., 18 I. C. C. R. 529, 244 Haines v. Chicago, R. I. & P. Ry., 13 I. C. C. R. 214, 56 Haldeman v. Beckwith, 4 Mc- Lean, 286, 2 Hall V. De Cuir, 95 U. S. 485, 66, 71, 561 Hanley v. Kansas City So. Ry., 187 U. S. 617, 67, 70, 71 Hanna Coal Co. v. Nor. Pac. Ry., 16 I. C. C. R. 289, 286, 305 Hardenberg, Dolson & Gray v. Nor. Pac. Ry., 14 I. C. C. R. 579, 208 Harman v. Chicago, 147 U. S. 396, 66 Harp v. Choctaw, 0. & G. Rd., 125 Fed. Rep. 445, 324 TABLE OF OASES. XVll [References are to pages.] Harvard Co. v. Pennsylvania Co., 4 I. C. C. R. 212, 149, 153, 156, 204, 525 Harvey v. Louisville & Nash- ville Rd., 5 I. C. C. R. 153, 874 Hawaii v. Mankichi, 190 U, S. 197, 139 Harwell v. C. & W. Rd., 1 I. C. C. R. 236, 1 I. C. R. 631, 180, 281 Hawkins v. Wheeling & L. E. Rd., 9 I. C. C. R. 212, 320 Hays V. Pacific Mail Co., 58 U. S. 596, 66 Heard v. Georgia Rd., 1 I. C. C. R. 428, . 562 Heck v. East Tennessee, V. & G. Ry., 1 I. C. C. R. 495, 84 Heeiman v. Beefman Co., 1 Fed. Rep. 145, 3 Henderson v. Mayor, 92 U. S. 259, 65, 66 Henderson Lumber Co. v. K. C. Ry., 16 I. C. C. R. 129, 624 Henderson & Barkdull v. St. L. I. M. & S. Rd. 18 I. C. C. R. 514, 392 Hennepin Paper Co. v. Nor. Pac. Ry., 12 I. C. C. R. 535, 364, 624, 625, 627 Hennick, In re, 5 Macky 489, 67 Herbeck Demer Co. v. B. & O. Rd., 17 I. C. C. R. 88, 827 Hewins v. New York, N. H. & H. Rd., 10 I. C. C. R. 221, 821 Hezel Milling Co. v. St. L. & T. H. Rd., 5 I. C. C. R. 57, 311 Hill V. Nashville, C. & St. L. Ry., 6 I. C. C. R. 343, 186 Hill Cotton Co. v. M. K. & T. Ry., 6 I. C. C. R. 601, 302, 540 Hill & Webb v. M. K & T. Ry., 16 I. C. C. R. 569, 232 Hillsdale C. & C. Co. v. Penn. Rd., 19 I. C. C. R. 356, 325, 326, 330 Hilton Lumber Co. v. Wil- mington & W. Rd., 9 I. C. C. R. 17, 208, 210, 221, 532 Hitchman C. & C. Co. v. B. & O. Rd., 16 L C. C. R. 512, 523 Holbrook v. St. P. M. & M. P. Co., 1 I. C. C. R. 102, 641 Holcombe Hayes Co. v. 111. Cent. Rd., 12 I. C. C. R. 128, 619 Hood & Sons v. Delaware, L. & W. Rd., 17 I. C. C. R. 15, 70, 87 V. Delaware & Hudson Co., 17 I. C. C. R. 19, 247 Hope Cotton Oil Co. v. Texas S', P. Ry., 10 I. C. C. R. 696, 613 V. same, 12 I. C. C. R. 266, 231, 635 Houston, etc. Co. v. Ins. Co. of N. A., 89 Tex. 1, 70 Houston & T. C. Ry. v. Mayes, 201 U. S. 321, 343, 350 Howard v. Illinois Central Rd., 207 U. S. 463, 988 Howard Mills Co. v. Pacific Ry., 12 I. C. C. R. 259, 199 Howell V. N. Y. L. E. & W. Rd., 2 I. C. C. R. 272, 183, 221 Humboldt S. S. Co. v. W. P. & Y. Route, 19 I. C. C. R. 105, 139 Hurlburt v. Lake Shore & M. S. Ry., 2 I. C. C. R. 122, 120, 165, 708 Hussey v. Chicago, R. I. & P. Ry., 13 I. C. C. R. 366, 122, 607 Illinois Central Rd. Complaint, 12 I. C. C. R. 8, 876 Illinois Central Rd. v. I. C. C, 206 U. S. 441, 191, 201, 223 XVlll TABLE OF CASES. [Refer Ilwaco Ry. & Nav. Co. v. Ore- gon Short Line, 51 Fed. Rep. 611, 57 Fed. Rep. 673, 938 Immigrant Transportation, Re, 10 I. C. C. R. 13, 691 Imperial Coal Co. v. P. & L. E. Rd., 2 I. C. C. R. 618, 182, 187, 220, 221, 268, 533 Import Rate Case (Texas & P. Ry. V. I. C. C), 162 TJ. S. 197, 44, 64, 82, 119, 130, 197, 228, 516 520, 521, 529, 530, 531, 532, 552 Independent Refin. Assn. v. W. N. Y. & P. Rd., 5 I. C. C. R. 415, 950 V. same, 6 I. C. R. 318, 117 V. same, 4 I. C. R. 162, 309 Indian Supplies, Re, 1 I. C. C. R. 15, 483 Indianapolis Freight Bureau V. C. C. C. & St. L. Ry., 15 I. C. C. R. 367, 178 Industrial Lumber Co. v. St. L. W. & G. Ry., 19 I. C. C. R. 50, 499, 500 Insular Cases — See De Lima v. Bidwell, Downes v. Bldwell, Dorr V. United States, Ha- waii V. Mankichi. Interstate Commerce Commis- sion, Application Brimson, 4 I. C. R. 315, 56 Interstate Commerce Commis- sion V. Ala. Mid. Ry., 168 XJ. S. 144, 69 Fed. Rep. 227, 181, 261, 516, 517, 520, 552, 835 V. Baltimore & Ohio Rd., 145 U. S. 263, 43 Fed. Rep. 37, 1, 519, 520, 522, 833 V. Bellaire, Z, & C. Ry., 77 Fed. Rep. 942, 92, 972 V. Brimson, 154 U. S. 447, 19, 28 are to pages.] Interstate Commerce Commis- sion V. Chesapeake & Ohio Ry., 128 Fed. Rep. 59, 516, 568, 618 V. Chicago & Alton Rd., 215 U. S. 479, 326, 438 V. Chicago, B. & Q. Ry., 98 Fed. Rep. 173, 103 Fed. Rep. 249, 432 V. same, 186 U. S. 320, 432, 699 V. Chicago Great Western Ry., 141 Fed. Rep. 1003, 209 U. S. 108, 183, 185, 186, 189, 282, 520 V. Cincinnati, H. & D. Ry., 146 Fed. Rep. 559, 206 U. S. 142, 160 V. Cincinnati, N. 0. & T. P. Ry., 167 U. S. 479, 19, 256, 260, 261, 520 V. same, 64 Fed. Rep. 981, 56 V. same, 76 Fed. Rep. 183, 55 V. Delaware, L. & W. Rd., 64 Fed. Rep. 723, 154 V. Detroit, G. H. & M. Ry., 167 U. S. 633, 57 Fed. Rep. 1005, 438, 445 V. Illinois Central Rd., 215 U. S. 452, 173 Fed. Rep. 930, 326, 327, 333, 438 V. Lake Shore & M. S. Ry., 134 Fed. Rep. 942, 199 V. Louisville & Nashville Rd., 190 U. S. 273, 212 V. same, 73 Fed. Rep. 409, 55, 56, 226, 418 V. same, 118 Fed. Rep. 613, 56, 550, 614 V. Receiver C. G. W. Ry., 215 U. S. 66, 430, 696 V. Reichman, 145 Fed.' Rep. 235, 102, 568 V. Seaboard Air Line, 82 Fed. Rep. 563, 92, 93 TABLE OF CASES. XIX [References Interstate Commerce Commis- sion V. Southern Pacific Ry., 132 Fed. Rep. 829, 949 V. Southern Ry., 117 Fed. Rep. 741, 122 Fed. Rep. 800, 204 V. Stickney, 215 U. S. 66, 430, 696 V. Texas & Pacific Ry., 57 Fed. Rep. 948, 529 V. Western N. Y. & Penn. Rd., 82 Fed. Rep. 192, 118 Interstate Remedy Co. v. Amer- ican Express Co., 16 I. C. C. R. 436, 735 Interstate Stock Yards v. In- dianapolis Union Ry., 99 Fed. Rep. 472, 98 James & Abbott v. Canadian Pac. Ry., 5 I. C. C. R. 612, 623, 154, 163, 228, 548 James Morrison, The, 1 Newb. 241, 3 Jerome Hill Cotton Co. v. M. K. & T. Ry., 6 I. C. C. R. 601, 302, 540 Jobbins v. Chicago & N. W. Ry., 17 I. C. C. R. 297, 305 Johnson v. C. M. St. P. & O. Ry., 9 I. C. C. R. 221, 188 Johnston v. St. Louis & S. F. Rd., 12 I. C. C. R. 73, 217, 218, 611 Joint Rates Terminal Roads, 10 I. C. C. R. 385, 497, 498, 569, 571, 572, 573, 773 Jolly V. Terre Haute Co., 6 Mc- Lean 237, 2 Jones V. St. Louis & S. F. Rd., 12 I. C. C. R. 144, 57, 434 are to pages.] Jones Bros. v. Montpelier & W. R. Rd., 14 I. C. C. R. 139, 287 Joynes v. Pennsylvania Rd., 17 I. C. C. R. 361, 587 Junod V. Chicago & N. W. Ry., 47 Fed. Rep. 290, 615 Jurisdiction Water Carriers, 15 I. C. C. R. 205, 67, 79, 107, 109, 110, 138 Jurisdiction Water Carriers Alaska, 19 I. C. C. R. 81, 139 K Kalispel Lumber Co. v. Great Nor. Ry., 16 I. C. C. R. 164, 690 Kansas City Hay Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 100, 597 Kansas City, M. & B. Rd. Rates, 8 I. C. C. R. 121, 69, 384 Kansas City Trans. Bureau v. A. T. & S. F. Ry., 16 I. C. C. R. 195, 177, 187, 220 Kaye & Carter Lumber Co. v. C. M. & St. P. Ry., 14 I. C. C. R. 604, 494 V. M. & I. Ry., 16 I. C. C. R. 285, 286, 305 V. same, 17 I. C. C. R. 209, 306 Kehoe v. Charleston & W. C. Rd., 11 I. C. C. R. 166, 442, 449, 947 Kehoe & Co. v. N. C. & St. L. Ry., 14 I. C. C. R. 555, 430 Keith V. Kentucky Central Rd., 1 I. C. C. R. 189, 430 Kemble v. Boston & Albany Rd., 8 I. C. C. R. 110, 109, 123, 529, 776 Kentucky & I. Bridge Co. v. L. & N. Rd., 2 I. C. C. R. 162, 55, 101, 136, 137, 356, 936 V. same, 37 Fed. Rep. 567, 55, 101, 136, 137, 356, 936 XX TABLE OV CASES. [References are to pages.] Kentucky Wagon Co. v. Ohio & M. Rd., 98 Ky. 152, 450 Kidd V. Pearson, 128 U. S. 1, 87 Kiel Woodenware Co. v. C. M. & St. P. Ry., 18 I. C. C. R. 242, 623 Kile & Morgan v. Deepwater Ry., 15 I. C. C. R. 235, 399, 618, 627 Kindel v. Adams Express Co., 13 I. C. C. R. 475, 222, 223 V. Baltimore & Ohio Rd., 11 I. C. C. R. 495, • 205 Kindelon v. Southern Pac. Ry., 17 I. C. C. R. 251, 610 Kinsley v. B. N. Y. & P. Rd., 37 Fed. Rep. 181, 525 Kizer v. Texarkana & Ft. S. Ry., 66 Ark. 348, 410 Knudsen Ferguson Co. v. Mich. Cent. Rd., 204 U. S. 671, 148 Fed. Rep. 968, 700 Koch V. Pennsylvania Rd., 10 I. C. C. R. 675, 390, 548 Koehler, Ex parte, 30 Ffed. Rep. 867, 69, 86, 120, 131 Koenigsberger v. Richmond Silver M. Co., 158 U. S. 48, 122 Krippendorf v. Hyde, 110 U. S. 276, 115 Kurtz V. Pennsylvania Rd., 16 I. C. C. R. 419, 823, 915 La Crosse M. & J. Union v. C. M. & St. P. Ry., 1 I. C. C. R. 629, 178, 187, 221 Laning Harris Coal Co. v. A. T. & S. F. Ry., 12 I. C. C. R. 479, 426 V. Missouri Pac. Ry., 13 I. C. C. R. 154, 176, 210, 234 Laning Harris Coal Co. v. St. L. & S. F. Ry., 15 I. C. C. R. 37, 475, 600 Larabee Flour Mills v. Mo. Pac. Ry., 211 U. S. 612, 74 Kas. 808, 138 Larrison v. C. & G. T. Ry., 1 L C. C. R. 147, 828, 874, 875 Larrowe Milling Co. v. C. & N. W. Ry., 17 I. C. C. R. 443, 242, 604 Larsen- Canning Co. v. C. & N. W. Ry., 13 L C. C. R. 287, 370 Lasalle & B. C. Ry. v. C. & N. W. Ry., 13 I. C. C. R. 610, 607, 608 Late Corp. Latter Day Saints v. U. S., 136 U. S. 1, 74 Latta V. C. St. P. M. & 0. Ry., 172 Fed. Rep. 850, 638 Lazarre & Barton Co. v. M. & W. R. Rd., 14 I. C. C. R. 146, 287 Lehigh Valley Rd. v. Rainey, 112 Fed. Rep. 487, 633 Lehmann Higginson Co. v. So. Pac. Ry., 4 I. C. C. R. 1, 186, 219 Leloup V. Port of Mobile, 127 U. S. 640, 66 Leonard v. Chicago & Alton Rd., 3 I. C. C. R. 241, 284 V. Chicago, M. & St. P. Ry., 12 I. C. C. R. 492, 426, 702 V. Kansas City So. Ry., 13 I. C. C. R. 573, 89, 91, 361, 971 V. Missouri, K. & T. Ry., 12 I. C. C. R. 538, 605, 615 License Cases, 5 How. 504, 2 Lippman & Co. v. Illinois Cen- tral Rd., 2 I. C. C. R. 684, 221, 532 Listman Mill Co. v. C. M. & St. P. Ry., 8 I. C. C. R. 47, 381 Little Rock & M. Rd. v. St. L. I. M. & S. Rd., 59 Fed. Rep. 400, 63 Fed. Rep. 775, 936 TABLE Of CASES. XXI [References Little Rock & M. Rd. v. St. Louis S. W. Rd., 59 Fed. Rep. 400, 63 Fed. Rep. 775, 357 Logan Coal Co. v. Pennsylvan- ia Rd., 154 Fed. Rep. 497, 311 Lord V. Goodall N. & P. S. S. Co., 102 U. S. 541, 71 Loud V. Southern Carolina Rd., 5 I. C. C. R. 529, 114, 182, 213, 596, 608 Louisville, N. O. & T. Ry. v. Mississippi, 133 U. S. 587, 87, 561 Louisville & Nashville Rd., Re, 1 I. C. C. R. 84, 180 V. Behlmer, 175 U. S. 648, 93, 94, 181, 249 V. Bubanks, 184 U. S. 27, 271 V. Mottley, 211 XJ. S. 149, 417 Loup Creek Coal Co. v. Vir- ginian Ry., 12 I. C. C. R. 471, 211, 263, 358, 359 Lull Carriage Co. v. C. K. & S. Ry., 19 I. C. C. R. 15, 209 Lundquist v. Grand Trunk W. Ky., 121 Fed. Rep. 915, 535 Lykes S. S. Co. v. Commercial Union, 13 I. C. C. R. 310, 80, 108, 134 M McBride C. & Co. v. C. M. St. P. & O. Ry., 13 I. C. C. R. 572, 449 McCardle, Ex parte, 7 Wall. 514, 122 McClelen v. Southern Ry., 6 I. C. R. 588, 268 McGrew v. Missouri Pac. Ry., 8 I. C. C. R. 630, 610 McMillan v. Western Classif. Committee, 3 I. C. R. 282, 170 McMorran v. Grand Trunk Ry., 3 I. C. C. R. 252, 186, -228, 532 are to pages.] McNeill V. Southern Ry.; 202 U. S. 543, 144 Fed. Rep. 82, 436, 437, 438, 439, 445, 446 McNulta V. Lochridge, 141 U. S. 327, ' 116 McNulty V. Batty, 10 How. 72, 122 McRae Terminal Co. v. South- ern Ry., 12 I. C. C. R. 270, 507 Macloon v. Boston & M. Rd., 9 I. C. C. R. 642, 821, 822 Macloon v. Chicago & N. W. Ry., 5 L C. C. R. 84, 584, 590 Maldonado & Co. v. Ferrocar- ril de Sonora, 18 I. C. C. R. 65, 305 Manufacturers & Jobbers Un- ion V. M. & St. L. Rd., 4 I. C. C. R. 79, 221 Marley & Son v. Norfolk & W. Ry., 11 I. C. C. R. 616, 217, 218 Marshall Oil Co. v. C. & N. W. Ry., 14 I. C. C. R. 210, 230, 257 Marshall & Michell Grain Co. V. St. L. & S. F. Rd., 16 I. C. C. R. 385, 364 Martin v. Chicago, Burlington & Q. Ry., 2 I. C. C. R. 46, 180 Martin v. Louisville & Nash- ville Rd., 9 I. C. C. R. 581, 198 Mason v. Chicago, R. I. & P. Ry., 12 I. C. C. R. 61, 459 Mason v. Rhinelander, 8 Ben. 163, 3 Mattingly v. Pennsylvania Co., 3 I. C. C. R. 592, 64, 120 May V. McNeill, 6 I. C. C. R. 520, 117 Mayor Wichita v. A. T. & S. F. Ry., 9 I. C. C. R. 534, 188 V. same, 9 L C. C. R. 558, 228 Memphis Arkansas Freight Rates, 11 r. C. C. R. 180, 230, 1037 TABLE OF CASES. [References are to pages.] Memphis Freight Bureau v. Ft. S. & W. Rd., 13 I. C. C. R. 1, 216, 354, 356 Menefee Lumber Co. v.' Texas & P. Ry., 15 I. C. C. R. 49, 218, 619 Merchants Cotton P. Co. v. N. A. Ins. Co., 151 U. S. 368, 273 Merchants Ins. Co. v. Ritchie, 5 Wall. 541, 123 Merchants Union Spokane v. Nor. Pac. Ry., 5 I. C. C. R. 478, 118 Michie V. New York, N. H. & H. Rd., 151 Fed. Rep. 694, 422, 437, 446, 447, 450, 947 Michigan Box Co. v. F. & P. M. Rd., 6 I. C. C. R. 335, 200 Michigan Buggy Co. v. G. R. & I. Ry., 15 I. C. C. R. 299, 209, 229 Michigan Congress Water Co. V. C. & G. T. Ry., 2 I. C. C. R. 594, 311 Milburn Wagon Co. v. L. S. & M. S. Ry., 18 I. C. C. R. 144, 244 Milk Producers Union v. D. L. 6 W. Rd., 7 I. C. C. R. 92, 72, 869 Miller v. Georgia Rd., 88 Ga. 563, 450 Miller v. Mansfield, 112 Mass. 260, 450 Milling-in-Transit Rates, 17 I. C. C. R. 113, 391 Milwaukee Falls Chair Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 217, 427 Miner v. New York, N. H. & H. Rd., 11 I. C. C. R. 422, 591 Minneapolis & St. Louis Rd. v. Minnesota, 186 U. S. 257, 210 Missouri, K. & T. Ry. v. Bowles, 1 Ind. Ter. 251, 111, 410 V. I. C. C, 164 Fed. Rep. 6^5, 189 V. Love, 177 Fed. Rep. 493, 188 Missouri, K. & T. Ry. v. Stoner, 5 Texas Civ. App. 50, 410 Missouri Pac. Ry. v. Larabee Flour Mills, 211 U. S. 612, 74 Kas. 808, 516 Missouri & Kas. Shippers v. M. K. & T. Ry., 12 I. C. C. R. 438 56 Mobile Co. v. Kimball, 102 U. S. 691, 65 Mobile & Ohio Rd. Rates, 9 I. C. C. R. 373, 190, 384, 702 Modification of Section 6 of Act, 685 Montague & Co. v. A. T. & S. F. Ry., 17 L C. C. R. 72, 285 Montgomery Freight Bureau v. W. Ry. Ala., 14 i. C. C. R. 150, 208, 240 Moore v. United States, 85 Fed. Rep. 465, 56 U. S. App. 471, 123 Morgan, Ex parte, 20 Fed. Rep. 305, 72 Morgan v. Missouri, K. & T. Ry., 12 I. C. C. R. 525, 208, 235, 240, 241 Morrell v. Union Pacific Ry., 6 I. C. C. R. 121, 227 Morris v. Delaware, L. & W. Rd., 40 Fed. Rep. 101, 589 Morrisdale Coal Co. v. Penn- sylvania Rd., 176 Fed. Rep. 748, 587, 606 Mosher v. St. Louis, I. M. & S. Rd., 127 U. S. 390, 847 Mottley V. Louisville & Nash- ville Rd., 150 Fed. Rep. 406, 416 - Muskogee Commercial Club v. M. K. & T. Ry., 12 I. C. C. R. 312, 401 Mutual Transit Co. v. United States, 178 Fed. Rep. 664, 126 Myer v. C, C. C. & St. L. Ry., 9 I. C. C. R. 78, 149, 154 TABLE OF OASES. XXlll [References are to pages.] Myers v. Pennsylvania Rd., 2 I. C. C. R. 573, 154, 171 N National Hay Association v. L. S. & M. S. Ry., 9 I. C. C. R. 264, 158, 161, 162, 181 200, 214, 296, 545 National Refining Co. v. A. T. & S. F. Ry., 18 I. C. C. R. 389, 617 National Wh. Lumber Dealers V. Atlantic C. L., 14 I. C. C. R. 154, 494 Nebraska Freight Rate (Smyth V. Ames), 169 U. S. 466, 188, 190 Nebraska Iowa Grain Co. v. Union Pac. Rd., 15 I. C. C. R. 91, 688 New Albany Box Co. v. 111. Cent. Rd., 16 I. C. C. R. 315, 732 New Jersey Fruit Express v. C. R. R. N. J.. 2 I. C. C. R. 142, 120 New Orleans Cotton Exchange V. C. N. 0. & T. P. Ry., 2 I. C. C. R. 375, , 70, 187 V. L. N. 0. & T. Ry., 4 I. C. C. R. 694, 776 V. 111. Cent. Rd., 3 I. C. C. R. 534, 177, 187, 202, 226, 228 New Orleans Livestock Exch. V. T. & P. Ry., 10 I. C. C. R. 327, 184, 185 New York Board of Trade v. Penn. Rd., 4 I. C. C. R. 447, 79, 179, 517, 529, 545, 778 New York Central & H. R. Rd. V, I. C. C, 168 Fed. Rep. 131, 56, 262, 1033 New York Hay Exchange v. Penn. Rd., 14 I. C. C. R. 178, 443 New York & N. Ry. v. N. Y. & N. E. Rd., 50 Fed. Rep. 867, 4 I. C. C. R. 702, 937 New York, N. H. & H. Rd. v. I. C. C, 200 U. S. 361, 516, 568 V. Piatt, 7 I. C. C. R. 323, 210, 234 New York Produce Exchange V. B. & O. Rd., 7 I. C. C. R. 612, 186, 204, 553 V. N. Y. C. & H. R. Rd., 3 I. C. C. R. 137, 776 Newark Machine Co. v. P. C. C. & St. L. Rd., 16 I. C. C. R. 291, 534 Newland v. Northern Pacific Ry., 6 I. C. C. R. 131, 182, 188, 221, 364 Newport & Cin. Bridge Co. v. U. S., 105 U. S. 470, 136 Newspaper Employes, Re, 12 I. C. C. R. 16, 861 Newton Grain Co. v. C. B. & Q. Ry., 16 I. C. C. R. 341, 709 Niagara, The, v. Cordes, 62 XJ. S. 21, 62 Nicola, Stone & Meyers v. L. & N. Rd., 14 I. C. C. R. 199, 597, 614, 617, 640 Nield V. C. M. St. P. & O. Ry., . 12 I. C. C. R. 202, 507 NoUenberger v. Missouri Pac. Ry., 15 I. C. C. R. 595, 74, 87 Norfolk & Western Ry. v. Adams, 90 Va. 393, V. Pennsylvania, 136 U. 114, Norris v. Crocker, 13 How. 429, 122 Northern Pacific Ry. v. Adams, 192 U. S. 440, 880 Ocheltree Grain Co. v. Texas & P. Ry., 18 I. C. C. R. 412, 1034 450 S. 66, 87 XXIV TABLE OF CASES. [References Omaha Cooperage Co. v. N. 0. & St. L. Ry., 12 I C C. R. 250, 228, 532 Omaha & C. B. Ry. v. I. C. C, 179 Fed. Rep. 243, 85 Orange Bank v. Brown, 3 Wend. 161, 62 Oregon Short Line v. Nor. Pac. Ry., 51 Fed. Rep. 465, 61 Fed. Rep. 158, 357, 938 Osborne v. Chicago & N. W. Ry., 48 Fed. Rep. 49, 614, 615 Ottinger v. Southern Pacific Ry., 1 I. C. C. R. 145, 641 Ottumwa Bridge Co. v. C. M. & St. P. Ry., 14 I. C. C. R. 121, 619 Ozark Fruit Growers v. St. L. & S. F. Rd., 16 I. C. C. R. 106, 214, 307 V. same, 16 I. C. C. R. 134, 284 Pabst Brewing Co. v. C. M. & St. P. Ry., 17 I. C. C. R. 359, 611 Pacific Coast Lumber Mfrs. v. Northern Pac. Ry., 14 I. C. C. R. 51, • 361 V. same, 16 I. C. C. R. 465, 259 Pacific Coast S. S. Co. v. R. R. Comm., 9 Sawy. 253, 18 Fed. Rep. 10, 7] Pacific Elevator Co v. C. M. & St. P. Ry., 17 I. C. C. R. 373, 611 Pacific Purchasing Co. v. C. & N. W. Ry., 12 I. C. C. R. 549, 285, 286, 305, 614 Page V. Delaware, L. & W. Rd., 6 L C. C. R. 548, 149, 153, 154, 163 Paine Bros. v. Lehigh Valley Rd., 7 I. C. C. R. 218, 206, 525 Palmer Dock Board v. Penn. are to pages.] Pankey v. Baltimore & Ohio Rd., 3 I. C. C. R. 658, 624, 627 Paola Refining Co. v. M. K. & T. Ry., 15 I. C. C. R. 29, 231 Parsons v. Chicago & N. W. Ry., 167 U. S. 447, 11 I. C. C. R. 489, 227, 228, 532 Party-Rate Tickets, Re, 12 I. C. C. R. 95, 556, 835 Passenger Tariffs, Re, 2 I. C. C. R. 649 851 Passenger Cases (Smith v. Turner), 7 How. 283, 2, 66 Passenger Rates Portland, Ore., 16 I. C. C. R. 300, 360 Passenger Tariffs and Rate Wars, 2 I. C. C. R. 513, 845 Passes to Clergymen, Re, 15 I. C. C. R. 45, 870 Paxton Tie Co. v. Duluth So. Ry., 10 I. C. C. R. 422, 591, 605, 632, 686 Payne v. M. L. & T. R. & S. Co., 15 I. C. C. R. 186, 708 Payne & Gardner Co. v. L. & N. Rd., 13 I. C. C. R. 638, 548 Peale, Peacock & Kerr v. C. R. R. N. J., 18 L C. C. R. 25, 701 Penn Tobacco Co. v. Old Do- minion S. S. Co., 18 I. C. C. R. 197, 619 Pennsylvania v. F. C. & P. Rd., 5 I. C. C. R. 97, 610, 636 V. Wheeling Bridge Co., 13 How. 518, 2, 3, 5 Pennsylvania Millers v. Phila. 6 R. Ry., 8 I. C. C. R. 531, 549, 94, 257, 269, 429, 447, 704 Pennsylvania Rd. v. Internat. Coal M. Co., 173 Fed. Rep. 1, 517, 617 V. Mldvale Steel Co., 201 Pa. 624, 450 Rd., 9 I. C. C. R. 61, 539 V. Roy, 102 U. S. 451, 374 TABLE OF OASES. XXV [References are to pages.] Pennsylvania Refining Co. v. W. N. Y. & P. Rd., 208 U. S. 208, 527, 584, 609, 633 Penrod Walnut Co. v. C. B. & Q. Ry., 15 I. C. C. R. 326, 612 Pennsylvania State Millers v. PMla. & R. Ry., 8 I. C. C. R. 531, 549, 94, 257, 269, 429, 447, 704 Phelps & Co. V. Texas & P. Ry., 4 1. C. C. R. 363, 93, 301, 302, 472, 540, 591, 699 Philadelphia & Reading Ry. v. I. C. C, 174 Fed. -Rep. 687, 518 Phillips V. N. Y. & B. Desp. Exp. Co., 15 I. C. C. R. 631, 553 Phillips Bailey & Co. v. L. & N. Rd., 8 I. C. C. R. 93, 553 Pickard v. Pullman S. Car Co., 117 U. S. 34, 66 Piedmont Mfg. Co. v. Col. & G. Rd., 19 S. C. 355, 62 Pilant v. Atchison, T. & S. F. Ry., 15 I. C. C. R. 178, 619 Pitts & Son V. St. L. & S. F. Rd., 10 I. C. C. R. 684, 471, 606, 678, 682 Pittsburgh, C. & St. L. Ry. v. B. & 0. Rd., 3 I. C. C. R. 465, 520, 833 Pittsburgh Plate Glass Co. v. P. C. C. & St. L. Ry., 13 I. C. C. R. 87, 529 Planters Compress Co. v. C. C. C. & St. L. Ry., 11 I. C. C. R,. 382, 162, 204, 206, 525 Plessy V. Ferguson, 163 U. S. 537, 561 Ponca Milling Co. v. M. K. & T. Ry., 12 I. C. C. U. 26, 532 Poor Grain Co. v. C. B. & Q. Ry., 12 I. C. C. R. 418, 370, 410, 411, 597, 607, 621, 624 Poor Grain Co. v. same, 12 I. C. C. R. 469, 363, 618, 687 Pope Mfg. Co. V. B. & O. Rd., 17 I. C. C. R. 400, 306 Port Wardens Case (Cooley v. P. Wardens), 12 How. 299, 66, 436, 445 Porter v. St. Louis & S. F. Rd., 15 I. C. C. R. 1, 257, 452, 707 Portland, Ore., Through Pas- senger Rates, 16 I. C. C. R. 300, 360 Potter Mfg. Co. v. C. & G. T. Ry., 5 I. C. C. R. 514, 299 PoughkeepSie Iron Co. v. N. Y. C. & H. R. Ra., 4 I. C. C. R. 195, ■ 533 Powhatan C. & C. Co. v. N. & W. Ry., 13 I. C. C. R. 69, 322 Pratt Lumber Co. v. C. I. & L. Ry., 10 I. C. C. R. 29, 255 Preston v. Chesapeake & Ohio Ry., 16 L C. C. R. 565,- 364 Preston & Davis v. D. L. & W. Rd., 12 I. C. C. R. 115, 422, 436 Private Tank Car Demurrage, 13 I. C. C. R. 378, 453 Procter & Gamble v. C. H. & D. Ry., 9 I. C. C. R. 440, 149, 298 V. same, 4 I. C. C. R. 87, 162, 215 Providence Coal Co. v. Prov. & W. Rd., 1 1. C. C. R. 107, 525 Publication Export and Import Tariffs, 10 I. C. C. R. 55, 776 Pueblo Trans. Co. v. So. Pac. Ry., 14 I. C. C. R. 82, 622, 687 Pullman P. Car Co. v. Mo. Pac. Ry., 115 U. S. 587, 315 Pyle & Sons v. Bast Tennessee, V. & G. Ry., 1 I. C. C. R. 473, 141, 149, 151, 162, 169, 545 XXVI TABLE OF CASES. [References Quimby v. Maine Central Rd., 13 I. C. C. R. 246, 549 R Racine Sattley Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 488, 305 Rahway Valley Rd. v. D. L. & W. Rd., 14 I. C. C. R. 191, 507 Rail & River Coal Co. v. B. & O. Rd., 14 I. C. C. R. 86, 325, 330, 333, 344, 546 Railroad Comm. Florida v. S. P. & W. Rd., 5 I. C. C. R. 13, 105. 208, 609 Railroad Comm, Georgia v. Clyde S. S. Co., 5 I. C. C. R. 324, 83, 91, 117 Railroad Comm. Kentucky v. C. N. 0. & T. P. Ry., 7 I. C. C. R. 380, 228 Railroad Comm. Kentucky v. L. & N. Rd., 10 I. C. C. R. 173, 53, 315, 356 Railroad Comm. Ohio v. Hock- ing Valley Rd., 12 I. C. C. R. 398, 325, 565, 587 Railroad Comm. Ohio v. Wheeling & L. B. Rd., 12 I. C. C. R. 398, 57 Railroad Comm. Wisconsin v. C. & N. W. Ry., 16 I. C. C. R. 84, 230 Railroad & W. H. Comm. v. Eureka Spgs. Ry., 7 I. C. C. R. 69, 208, 823 Rasmussen v. United Stales, 197 U. S. 516, 139 Rate Schedule Form and Con- tents, 6 I. C. C. R. 267, 177, 711 Rate Wars and Passenger Tar- iffs, 2 I. C. C. R. 513, 845 are to pages.] Rates Corn and Corn Prod- ucts, 11 I. C. C. R. 227, 198 Rates on Cotton, 8 I. C. C. R. izl, 69, 384 Rates Kansas City, M. & B. Rd., 8 I. C. C. R. 121, 69, 384 Rates Motile & Ohio Rd., 9 I. C. C. R. 373, 190. 384, 702 Rates Vegetables S. P. & W. Rd., 8 I. C. C. R. 585, 302 Raworth v. Northern Pacific Ry., 5 I. C. R. 234, 2 I. C. R. 614, 3 1. C. R. 85'7, 118 Raymond v. C M. & St. P. Ry., 1 I. C. C. R. 230, 522 Re Advances Freight Rates, 9 I. C. C. R. 382, 194 Re Alaska Water Cariers, 19 I. C. C. R. 87, 139 Re Allowances Transfer of Sugar, 14 I. C. C. R. 619, 483 Re Allowances Union Pacific Elevators, 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Re Annapolis, Washington & Baltimore Rd., II. C. R. 315, 93 Re Application I. C. C. on Brimson, 4 I. C. R. 315, 56 Re Bills of Lading, 14 I. C. C. R. 346, 274, 275 Re Boston & M. Rd. Free Transportation, 3 I. C. R. 717, 874 Re Canadian Pacific Rates, 8 I. C. C. R. 71, 99, 139 Re Car Shortage, 12 I. C. C. R. 561, 309, 352, 945 Re Charge Grand Jury, 66 Fed.' Rep. 146, 858 Re Charge Grand Jury, 151 Fed. Rep. 834, 66 Re Charges on Fruit, 10 I. C. C. R. 360, 309, 312, 315, 374 Re Charges on Fruit, 11 I. C. C. R. 129, 309, 319, 375, 700 TABLE OF CASES. XXVU [References are to pages.] Re Chicago, St. P. & K. C. Ry., 2 I. C. C. R. 231, 197 Re Class Rates St. Louis and Texas, 11 I. C. C. R. 238, 185, 194 Re Classifications and Tariffs A. & W. P. Rd., 3 I. C. C. R. 24, 180 Re Clergymen's Passes, 15 I. C. C. R. 45, 870 Re Commutation Tickets School Children, 17 I. C. C. R. 144, 831 Re Complaint Illinois Central Rd., 12 I. C. C. R. 8, 876 Re Corn and Corn Products, 11 I. C. C. R. 227, 198 Re Cotton Rates, 8 I. C. C. R. 121, 69, 384 Re Debs, 158 U. S. 564, 66 Re Demurrage Charges Pri- vate Tank Cars, 13 I. C. C. R. 378, 453 Re Differential Freight Rates, 11 I. C. C. R. 13, 1037 Re Elevator Allowances Union- Pacific Ry., 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Re Exchange Free Transpor- tation, 12 I. C. C. R. 40, 134, 135, 861, 877 Re Export Corn Rates E. and W. Miss. River, 8 I. C. C. R. 185, . 551, 774 Re Export and Import Tariff Publication, 10 I. C. C. R. 55, 776 Re Express Companies, 1 I. C. C. R. 349, 95 Express Co. - Contracts for Men, 16 I. C. C. R. 246, 488, 878 Re Fish Commission, 1 I. C. C. R. 21, 482 Re Export and Domestic Rates, 8 I. C. C. R. 214, 776 Food Products, 4 I. C. C. R. 48, 214 Re Food Product Freight Rates, 4 I. C. C. R. 79, 156, 157 Re Form and Contents Rate Schedules, 6 I. C. C. R. 267, 177, 711 Re Free Transportation B. & M. Rd., 3 I. C. R. 717, 874 Re Free Transportation Ex- change, 12 I. C. C. R. 40, 134, 135, 861, 877 Re Free Transportation News- paper Employes, 12 I. C. C. R. 16, 861 Re Freight Pooling, 115 Fed. Rep. 588, 948 Re Freight Rate Advances, 9 I. C. C. R. 3S2, 194 Re Freight Rates Pood Prod- ucts, 4 I. C C. R. 79, 156, 157 Re Freight Rates Memphis & Arkansas, 11 I. C. C. R. 180, 230, 1037 Re Fruit Charges, 10 I. C. C. R, 360, 309, 312, 315, 374 Re Fruit Charges, 11 I. C. C. R. 129, 309, 319, 375, 700 Re Grain Rates, 7 I. C. C. R. 240, 214 Re Grand Jury Charge, 66 Fed. Rep. 146, 858 Re Grand Jury Charge, 151 Fed. Rep. 834, 66 Re Grand Trunk Ry. Investi- gation, 3 I. C. C. R. 87, 80, 81, 99, 139 Re Gulf, Colorado & S. P. Ry., 13 I. C. C. R. 134, 984 Re Hennick, 5 Macky 489, 67 Re Illinois Central Rd. Com^ plaint, 12 I. C. C. R. 8, 876 Re Immigrant Transportation, 10 I. C. C. R. 13, 954 Re Indian Supplies, 1 I. C. C. R. 15, 483 XXVlll TABLE OF CASEy. [References are to pages.] Re Interstate Comm. Comm. and Brimson, 4 I. C. R. 315, 56 Re Investigation Grand Trunk Ry., 3 I. C. C. R. 87, 80, 81, 99, 139 Re Joint Rates Terminal Roads, 10 I. C. C. R. 385, 497, 498, 569, 571, 572, 573, 773 Re Kansas City, M. & B. Rd. Rates, 8 I. C. C. R. 121, 69, 384 Re Louisville & Nashville Rd., 1 I. C. C. R. 84, 180 Re Memphis Arkansas Freight Rates, 11 I. C. C. R. 180, 230, 1037 Re Milling-in-Transit Rates, 17 I. C. C. R. 113, 391 Re Mobile & Ohio Rd. Rates, 9 I. C. C. R. 373, 190, 384, 702 Re Modification of Section 6 of Act, 685 Re Newspaper Employes Transportation, 12 I. C. C. R. 16, 861 Re Party-Rate Tickets, 12 I. I. C. R. 95, 556, 835 Re Passenger Rates Portland, Ore., 16 I. C. C. R. 300, 360 Re Passenger Tariffs and Rate Wars, 2 I. C. C. R. 513, 845 Re Passenger Tariffs, 2 I. C. C. R. 649, 851 Re Passes to Clergymen, 15 I. C. C. R. 45, 870 Re Pooling of Freights, 115 Fed. Rep. 588, 948 Re Portland, Ore., Passenger Rates, 16 I. C. C. R. 300, 360 Re Publication Export and Im- port Tariffs, 10 I. C. C. R. 55, 776 Re Rate Schedule Form and Contents, 6 I. C. C. R. 267, 177, 711 Re Rate Wars and Passenger Tariffs, 2 I. C. C. R. 513, 845 Re Rates Chicago, St. P. & K. C. Ry., 2 I. C. C. R. 231, 197 Re Rates on Cotton, 8 I. C. C. R. 121, 69, 384 Re Rates Kansas City, M. & B. Rd., 8 I. C. C. R. 121, 69, 384 Re Rates Mobile & Ohio Rd., 9 I. C. C. R. 373, 190, 384, 702 Re Rates on Vegetables, 8 I. C. C. R. 585, 302 Re Released Rates, 13 I. C. C. R. 550, 273, 479 Re Religious Teachers, 1 I. C. C. R. 21, 870 Re St. Louis Millers Associa- tion, 1 I. C. C. R. 20, 399 Re St. Louis Texas Class Rates, 11 I. C. C. R. 238, 185, 194, 212 Re Salt Transportation, 10 I. C. C. R. 1, 571 Re Salt Transportation, 10 I. C. C. R. 148, 500 Re School Children's Tickets, 17 I. C. C. R. 144, 831 Re Shortage of Cars, 12 I. C. C. R. 561, 309, 352, 945 Re Southern Ry. and S. S. As- sociation, 1 I. C. C. R. 31, 215, 216 Re Substitution of Tonnage, 18 I. C. C. R. 280, 393, 474 Re Sugar Transfer Allow- ances, 14 I. C. C. R. 619, 493 Re Tank Car Demurrages, 13 I. C. C. R. 378, 453 Re Tariffs and Classifications A. & W. P. Rd., 3 I. C. C. R. 24, ' 180 Re Terminal Joint Charges, 10 I. C. C. R. 385, 497, 498, 569, 571, 572, 573, 773 TABLE OS CASES. XXIX [References Re Through Passenger Rates Portland, Ore., 16 I. C. C. R. 300, 360 Re Through Routes and Through Rates, 12 I. C. C. R. 164, 176, 177, 238, 354 355, 391, 773 Re Tonnage Substitution, 18 I. C. C. R. 2S0, 393, 474 Re Transportation of Immi- grants, 10 I. C. C. R. 13, 954 Re Transportation of Salt, 10 I. C. C. R. 1, 571 Re Transportation of Salt, 10 I. C. C. R. 148, 500 Re Underhilling, 1 I. C. C. R. 633, 570 Re Union Pacific Elevator Al- lowances, 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Re U. S. Pish Commission, 1 I. C. C. R. 21, 482 Re Vegetable Rates S. P. & W. Ry., 8 I. C. C. R. 585, 302 Re Water Carriers, 15 I. C. C. R. 205, 67, 79, 107, 109, 110, 138 Re Water Carriers Alaska, 19 I. C. C. R. 87, 139 Re Wilson, 10 N. Mex. 32, 67 Rea V. Mobile & Ohio Rd., 7 I. C. C. R. 43, 161, 545, 686 Red Cloud Min. Co. v. So. Pac. Ry., 9 I. C. C. R. 216, 410 Red Rock Puel Co. v. B. & O. Rd., 11 I. C. C. R. 438, 507, 565 Rehberg & Co. v. Erie Rd., 17 I. C. C. R. 508, 242 Released Rates, Re, 13 I. C. C. R. 550, 273, 479 Religious Teachers, Re, 1 I. C. R. 21, 870 Rend v. C. & M. V. Ry., 2 I. C. C. R. 540, 211 are to pages.] Reynolds v. Western N. Y. & P. Rd., 1 I. C. R. 685, 217 Rhode Island Egg & Butter Co. V. L. S. & M. S. Ry., 6 I. C. R. 176, 164 Rhodes v. Iowa, 170 U. S. 412 436, 437, 445, 446 Rice V. Cincinnati, W. & B. Rd., 5 I. C. C. R. 193, 199, 341, 527 Rice V. Georgia Rd., 14 I. C. C. R. 75, 299 Rice V. Louisville & Nashville Rd., 1 I. C. C. R. 503, 309, 318, 494 Rice, R. & W. V. W. N. Y. & P. Rd., 2 I. C. C. R. 389, 211, 285, 532 V. same, 4 I. C. C. R. 131, 312, 527, 541 Richmond Elevator Co. v. P. M. Rd., 10 I. C. C. R. 629, 322, 435, 541, 632 Riddle Dean & Co. v. B. & O. Rd., 1 I. C. C. R. 608, 512 V. N. Y. L. E. & W. Rd., 1 I. C. C. R. 594, 543 V. Pittsburgh & L. E. Rd., 1 i. C. C. R. 374, 321 V. same, 1 I. C. R. 773, 48 Riverside Mills v. Atlantic Coast Line, 168 Fed. Rep. 987, 1, 478, 479 Robbins v. Shelby District, 120 U. S. 489, 66 Rogers & Co. v. Phila. & R. Ry., 12 I. C. C. R. 309, 544, 591, 604, 605, 635 Roman Oolitic Stone Co. v. Vandalia Rd., 13 I. C. C. R. 115, , 297 Rosenbaum Grain Co. v. M. K. & T. Ry., 15 I. C. C. R. 499, 287 XXX TABLE OF CASES. [References are to pages.] Royal Brg. Co. v. Adams Ex- press Co., 15 I. C. C. R. 255, 554 Royal C. &-C. Co. v. Sonthern Ry., 13 I. C. C. R. 441, 329 Ruttle V. Pere Marquette Rd., 13 I. C. C. R. 179, 320 Saginaw Board of Trade v. Grand Trunk Ry., 17 I. C. C. R. 128, 250, 255 St. Clair County v. I. Sand & Car Co., 192 U. S. 454, 138 St. Louis Hay & Grain Co. v. C. B. & Q. Ry., 11 I. C. C. R. 82, 401, 435, 436, 449, 591 V. 111. Cent. Rd., 11 I. C. C. R. 486, 210, 396 V. Mobile & Ohio Rd., 11 I. C. C. R. 90, 210, 386, 442, 546 St. Louis Millers Association, Re, 1 I. C. C. R. 20, 399 St. Louis S. W. Ry. v. Arkan- sas, 217 U. S. 136, 343 V. Cardan, 34 S. W. 145, 419 St. Louis Texas Class Rates, 11 I. C. C. R. 238, 185, 194, 212 St. Louis & S. F. Rd. v. Had- ley, 168 Fed. Rep. 317, 189 V. Ostrander, 66 Ark. 567, 410 Salt Transportation, Re, 10 I. C. C. R. 1, 571 Salt Transportation, Re, 10 I. C. C. R. 148, 500 San Antonio & A. P. Ry. v. Clements, 20 Tex. Civ. App. 498, 410 San Bernardino Board of Trade V. A. T. & S. F. Ry., 4 I. C. . C. R. 104, 223 Saunders & Co. v. Southern Express Co., 18 I. C. C. R. 415, 230 Savannah Bureau v. C. & S. Ry., 7 L C. C. R. 601, 210, 823 Savannah P. & W. Ry. v. Bun- dick, 94 Ga. 775, 410 Savannah F. & W. Ry. Vege- table Rates, 8 I. C. C. R. 5S5, 302 Savannah Freight Bureau v. L. & N. Rd., 8 L C. C. R. 377, 550 Savery & Co. v. N. Y. C. & H. R. Rd., 2 I. C. C. R. 338, 555, 875 Sawyer & Austin v. St. L. I. M. & S. Ry., 19 I C. C. R. 141, 200 School Children Tickets, 17 I. C. G. R. .144, 831 Schultz-Hansen Co. v. So. Pac. Ry., 18 I. C. C. R. 234, 423, 697, 706 Schumacher v. C. & N. W. Ry., 207 111. 199, -450 Schumacher Milling Co. v. C. R. I. & P. Ry., 6 I. C. C. R. 61, 141, 142, 149, 164 169, 197, 545 Schwager & Nettleton v. Great Northern Ry., 12 I. C. C. R. 521, 428, 705 Scofleld v. Lake Shore & M. S. Ry., 2 I. C. C. R. 90, 204, 309, 314, 318, 341, 494 Sere v. Pitot, 6 Cranch 332, 74 Shamberg v. Delaware, L. & W. Rd., 4 I. C. C. R. 630, 569 Shiel & Co. V. Illinois Central Rd., 12 I. C. C. R. 211, 389, 546, 618, 702 Shinkle, Wilson & Kreis v. L. & N. Rd., 67 Fed. Rep; 690, 55 Shippers Bureau Newark v. N. Y. 0. & W. Rd., 15 I. C. C. R. 264, 192 Shortage of Cars, Re, 12 I. C. C. R. 561, 309, 352 TABLE OF CASES. XXXI [Heferenaes are to pages.] Sidman v. Richmond & Dan- ville Rd., 3 I. C. C. R. 512, 555, 827 Sinnott v. Davenport, 22 How. 227, 2, 66 Slater v. Northern Pacific Ry., 2 I. C. C. R. 359, 879 Sligo Iron Co. v. A. T. & S. F. Ry., 17 I. C. C. R. 139, 570 Smeltzer v. St. Louis & S. F. Rd., 158 Fed. Rep. 649, 478, 479 Smith V. Northern Pacific Ry., 1 I. C. C. R. 208, 554. 876 Smith V. Turner (Passenger . Cases), 7 How. 283, 2, 66 Smyth V. Ames (Nebraska Case), 169 U. S. 466, 188, 190 Smyth V. Ames, 171 U. S. 361, 201 Snook V. Central R. R. of N. J., 17 I. C. C. R. 375, 434 Social Ciircle Case (C. N. O. & T. P. Ry. V. I. C. C), 162 U. S. 184, 91, 92, 126, 129, 249,. 519 Society A. F. & O. H. v. U. S. Express Co., 12 I. C. C. R. 121, 183 Solvay Process Co. v. D. L. & W. Rd., 14 I. C. C. R. 246, 493, 601 Sondheimer Co. v. Illinois Cen- tral Rd., 17 I. C. C. R. 60, 250, 251 South Canion Coal Co. v. C. . &'S. Ry., 17 I. C.-C. R. 286, 218 South Carolina v. Gaillard, 101 U. S. 437, 122 Southern Cotton Oil Co. v. Southern Ry., 19 I. C. C. R. 79, 614 v. L. & N. Rd., 18 I. C. C. R. ' 180, 614 Southern Indiana Exp. Co. v. U. S. Exp. Co., 92 Fed. Rep. 1022, 96 Southern Pacific Ry. v. Color- ado Fuel & I. Co., 101 Fed. Rep. 779, 201 v. I. C. C, 200 U. S. 536, 233, 957 Southern Pine Lumber Co. v. Southern Ry., 14 I. C. C. R. 195, 617 Southern Ry. v. Greensboro Ice Co., 134 Fed. Rep. 82, 438 V. Harrison, 119 Ala. 539, 410, 411 v. St. Louis Hay & Grain Co., 214 U. S. 297, 386 V. Tift, 206 U. S. 428 185, 192, 602 V. Wilcox, 99 Va. 394, 410 Southern Ry. & Steamship As- sociation, Re, 1 I. C. C. R. 31, 215, 216 Spillers & Co. v. Louisville & Nashville Rd., 8 I. C. C. R. 364, 697 Spokane v. Northern Pacific Ry., 15 I. C. C. R. 376, 192 Spratlin v. St. Louis S. W. Ry., 76 Ark. 82, 419 Sprigg V. Baltimore & Ohio Rd., 8 L C. C. R. 443. 829, 851, 992 Springer v. El Paso & S. W. Rd., 17 I. C. C. R. 322, 286 Squire & Co. y. Mass. Central. Rd., 3 I. C. R. 515, 534 Standard Lime Co. v. Cumber- land V. Rd., 15 I. C. C. R. 620. 310, 374, 550 Star Grain & Lumber Co. v. A. T. & S. F. Ry., 14 I. C. C. R. 364, 551, 942 v. same, 17 I. C. C. R. 338; 498, 499, 500 State y. Atchison, T. & S. F. Ry., 176 Mo. App. 687, 400, 438 xxxn TABLE OF CASES. [References are to pages.] State ex rel. R. R. & W. H. Comm. V. C. St. P. M. & O. Ry., 40 Minn. 267, 2 I. C. R. 519, 72 Sternberger v. Cape Pear & Y. V. Rd., 29 S. C. 510, 72 Stock Yards C. & L. Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 366, 241 V. M. K. & T. Ry., 17 I. C. C. R. 295, 612 Stoutenburgli v. Hennick, 129 U. S. HI, 67 Stowe Puller Co. v. Pennsyl- vania Co., 12 I. C. C. R. 216, 148, 199, 200 Strauss v. American Express Co., 19 I. C. C. R. 112, 553 Substitution Tonnage, Re, 18 I. C. C. R. 280, 393, 474 Sunern Hunt & Co. v. I. D. & W. Rd., 7 I. C. C. R. 255, 288, 296, 299, 411, 697, 698 Sugar Transfer Allowances, Re, 14 I. C. C. R. 619, 493 Sunderland Bros. Co. v. M. K. & T. Ry., 18 I. C. C. R. 425, 290 V. Pere Marquette Rd., 16 I. C. C. R. 450, 612 Sunnyside Coal M. Co. v. D. & R. G. Rd., 16 I. C. C. R. 558, 394, 621 Swift & Co. V. Chicago & Al- ton Rd., 16 I. C. C. R. 426, 617 Tariffs and Classifications A. & W. P. Rd., 3 I. C. C. R. 24, 180 Taylor v. Carryl, 20 How. 583 115 Tayntor Granite Co. v. M. & W. R. Rd., 14 I. C. C. R. 136 287 Terminal Rd. Joint Rates, 10 C. C. R. 385, 497, 498, 569, 571, 572, 573, 773 Texas Cement Plaster Co. v. St. L. & S. P. Rd., 12 I. C. C. R. 68, 631 Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 58, 258, 339, 409, 438, 581, 585 587, 589, 590, 600, 602, 616 V. Cisco Oil Mill, 204 U. S. 449, 686 V. Clarke, 4 Tex. Civ. App. 611, 93 V. Cox, 145 U. S. 593, 116. V. I. C. C, 162 U. S. 197, 44, 64, 82, 119, 130, 197, 228 516, 520, 521, 529 530, 531, 532, 552 V. Mugg, 202 U. S. 242, 408, 472, 621 Thatcher Mfg. Co, v. N. Y. C. & H. R. Rd., 16 I. C. C. R. 126, 624 Thompson v. Pennsylvania Rd., 10 I. C. C. R. 640, 322 Through Passenger Rates Portland, Ore., 16 I. C. C. R. 300, 360 Through Rates and Through Routes, 12 I. C. C. R 164, 176, 177, 238, 354, 355, 391, 773 Thurber v. N. Y. C. & H. R. . Rd., 3 I. C. C. R. 473, 148, 157, 158, 162, 181, 183, 194, 204 Tift V. Southern Ry., 138 Ped. Rep. 753, 206 U. S. 428, 157, 192, 201 V. same, 10 I. C. C. R. 548, 185, 191, 192, 193, 201, 212, 992 Tileston Milling Co. v. Nor. Pac. Ry., 8 I. C. C. R. 346, 226 Tonnage Substitution, Re, 18 I. C. C. R. 280, 393, 474 TABLE OF CASES. XXXUl [References are to pages.] Topeka Banana D. A. v. St. L. & S. F. Rd., 13 I. C. C. R. 620, 292, 495 Tozer v. United States, 52 Fed. Rep. 917, 227 Traders & Travelers Union v. P. & R. Ry., 1 I. C. C. R., 122, 53, 58, 418 Trades League Philadelphia v. P. W. & B. Rd., 8 I. C. C. R. 368, 160 Traer, Receiver, v. Chicago & Alton Rd., 13 I. C. C. R. 451, 326 V. Chicago, B. & Q. Ry., 14 I. C. C. R. 165, 331 Traffic Bur. March. Bxch. v. C, B. & Q. Ry., 14 I. C. C. R. 317, 402, 546 Transportation Fruit, 10 I. C. C. R. 180 309, 312, 315, 374 Transportation Fruit, 11 I. C. C. R., 129, 309, 319, 375, 700 Transportation Immigrants, 10 I. C. C. R., 13, 954 Troy Case (I. C. C. v. Ala. Mid. Ry.), 168 U. S. 144, 181, 261, 516, 517, 520, 552, 835 Truck Farmers Charleston v. N. E. Rd. (S. C), 6 I. C. R., 295, 310, 377 Tyler, Ex Parte, 149 U. S. 164, 115 U Underbilling, Re, 1 I. C. C. R. 633, 570 Union Pacific Elevator Allow- ances, 12 I. C. C. R. 86, 385, 402, 403, 423, 493 Union Pacific Ry. v. Good- ridge, 149 U. S. 680, 192 United States v. A., T. & S. F. Ry., 142 Fed. Rep. 176, 993 V. same, 163 Fed. Rep. Ill, 470 United States v. Baltimore & Ohio Rd., 165 Fed. Rep. 113, 542 V. Boisdore, 8 How. 121, 122 y. Chicago & Alton Rd., 148 Fed. Rep. 646, 156 Fed. Rep. 558, 568, 575, 682 V. Chicago, I. & L. Rd., 163 Fed. Rep. 114, 471, 525 V. Chicago & N. Rd., 157 Fed. Rep. 321, 249 y. Chicago & N. W. Ry., 127 Fed. Rep. 785, 520, 834 V. Coombs, 12 Pet. 72, 2, 3 V. De Coursey, 82 Fed. Rep. 302, I 117 V. Delaware, L. & W. Rd., 152 Fed. Rep. 269, 70, 569 V. Hanley, 71 Fed. Rep. 672, 520 V. Illinois Terminal Rd., 168 Fed. Rep. 546, 98, 248, 249, 678 V. Jackspn, 4 N. Y. Leg. Ob. 450, 3 V. Joint Traffic Association, 171 U. S. 505, 994 y. McFarland, 20 App. D. C. 552, 76 V. M. C. Rd., 122 Fed. Rep. 544, 57 y. Mellen, 53 Fed. Rep. 229, 228 y. Morrison, 4 N. Y. Leg. Ob. 333, 3 V. Morsman, 42 Fed. Rep. 448," 96 V. Moseley, 187 U. S. 322, 25 y. New York C. & H. R. Rd., 153 Fed. Rep. 630, 774 V. Norfolk & Western Ry.. 109 Fed. Rep. 831, 322, 543 V. same, 143 Fed. Rep. 266, 543 V. Pennsylvania Rd., 153 Fed. Rep. 625. 569 V. Pope, 1 Newb. 256, 3 xxxiv TABLE OP CASES. [References are to pages.] 93 V. United States v. Railroad Bridge Co., 3 McLean 517, V. Seaboard Air Line, 82 Fed. Rep., 563, V. Standard Oil Co., 148 Fed. Rep. 719, 437, 447, 477, 568, 575, 1034 V. Standard Oil Co. of In- diana, 155 Fed. Rep. 269, 88 V. The James Morrison, 1 Newb. 241, 3 V. Tozer, 39 Fed. Rep. 369, 519, 525, 533 Trans-Missouri Freight Assn., 166 U. S. 290, 956, 993, 994 Vacuum Oil Co., 153 Fed. Rep. 598, 568 Wells Fargo & Co., 161 Fed. Rep. 606, 96, 490, 518 William Pope, 1 Newb. 256, 3 Williams, 159 Fed. Rep. 310, 1001 V. Wood, 145 Fed. Rep.' 405, 105 United States ex rel. Atty. Gen. V. D. & H. Co., 213 U. S. 366, 164 Fed. Rep. 215, 974 ex rel. I. C. C. v. C, K. & S. Rd., 81 Fed. Rep. Rep. -783, 971 ex rel. I. C. C. v. Seaboard Air Line, 88 Fed. Rep. 955, 972 ex rel. Kingwood Coal Co. V. W. V. N. Rd., 125 Fed. Rep. >252, 134 Fed. Rep. 198, 328, 543 ex rel. Morris v. D., L. & W. Rd., 40 Fed. Rep. 101, 317 V. V. United States ex rel. N. W. Warehouse Co. v. O. R. & N. Co., 159 Fed Rep. 975, 332 ex rel. Pitcairn Coal Co. v. B. & O. Rd., 165 Fed. Rep. 113, 339 United States Fish Commis- sion, Re, 1 I. C. C. R. 21, 482 Utica Traffic Bureau v. N. Y. C. & H. R. Rd., 18 I. C. C. R. 271, 423 Valley Flour Mills v. A., T. & S. F. Ry., 16 L C. C. R. 73, 549 Van Patten v. C. M. & St. P. Ry., 81 Fed. Rep. 545, 609, 610 Vancouver, The, 18 Int. Rev. Rec. 103, . 3 Veazle v. Moore, 14 How. 568, 3 Vegetable Rates, S, F. & W. Ry., 8 I. C. C. R. 585, 302 Vermont State Grange v. B. & L. Rd., 1 I. C. C. R. 158, 98, 270 Victor Fuel Co. v. A. T. & S. F. Ry., 14 I. C. C. R. 119, 706 Voorhees v. Atlantic Coast Line, 16 I. C. C. R. 42, 224 W Wabash, St. L. & P. Rd. v. Illinois, 118 U. S. 557, 16, 66, 71, 87, 437, 446 Walsh V. New York, N. H. & H. Rd., 173 Fed. Rep. 494, 989 Ward V. Maryland, 12 Wall. 415, 5 Warner v. N. Y. C. & H. R. Rd., 4 I. C. C. R. 32, 153, 156 Warren Ehret Co. v. C. R. R. N. J., 8 I. C. C. R. 598, 229 TABLE OF CASES. XXXV [References are to pages.1 Warren Mfg. Co. v. Southern Ry., 12 I. C. C. R. 381, 213, 992 Washer Grain Co. v. Mo. Pac. Ry., 15 I. C. C. R. 147, 57, 114, 579, 588 Washington Broom & W. W. Co. V. C. R. I. & P. Ry., 15 I. C. C. R. 219, 364, 624, 699 Water Carriers, Re, 15 I. C. C. R. 205, 67, 79, 107, 109, 110, 138 Water Carriers In Alaska, Re, 19 I. C. C. R. 81, 139 Waxelbaum & Co. v. Atlantic Coast Line, 12 I. C. C. R. 178, 289, 307, 310, 374, 450, 550 Weber Club v. Oregon Short Line, 17 I. C. C. R. 212, 558 Welmer & Rich v. C. & N. W. ■ Ry., 12 r. C. C. R. 462, 287 Weleetka L. & P. Co. v. Ft. S. & W. Ry., 12 I. C. C. R.~ 503, 475, 507, 509 Welton V. Missouri, 91 U. S., 275, 5, 65, 66, 67 West Imp. Club v. O. & C. B. Ry., 17 i. C. C. R. 239, 85 Western N. Y. & P. Rd. v. Penn. Refining Co., 137 Fed. Rep. 343, 584, 609 Western Oregon Lbr. Mfrs. v. So. Pac. Ry., 14 L C. C. R. 61, 216 Wheeling Bridge Case, 13 How. 518, 2, 3, 5 Wheeling Corrugating Co. v. B. & 0. Rd., 18 I. C. C. R. 125, 179 White & Co. V. B. & 0. S. W. Rd., 12 I. C. C. R. 307, 288, 301, 302 Wholesalers F. & P. Assn. v. A. T. & S. F. Ry., 14 I. C. C. R. 410, 224, 423, 436 Wight V. United States, 167 U. S. 512, 425, 493, 516, 517, 835 Wilhoit V. M. K. & T. Ry., 12 I. C. C. R. 139, 186 Williams Co. v. V. S. & P. Ry., 16 I. C. C. R.-4S2, 178, 211 Wil'son V. Blackbird C. M. Co., 2 Pet. 245, ' 2 Willson V. Rock Creek Ry., 7 I. C. C. R. S3, 67, 83, 85, 88 Willson Bros. v. Norfolk So. Rd., 19 I. C. C. R. 293, 627 Wilson Produce Co. v. Penn. Rd., 14 I. C. C. R. 170, 433, 444 V. same, 16 I. C. C. R. 116, 443 Wilson, Re, 10 N. Mex. 32, 67 Winters Metalic Paint Co. v. C. M. & St. P. Ry., 16 I. C. C. R. 587, 506 Wiswall V. Sampson, 14 How. 52, 115 Withers v. Buckley, 20 How. 84, 3 Wisconsin, M. & P. Rd. v. Jacobson, 179 U. S. 287, 939 Wood Butter Co. v. C. C. C. & St. L. Ry., 16 I. C. C. R. 374, 240 Woodburn v. Kilburn Co., 1 Abb. 158, 3 .Woodman v. Kilburn Mfg. Co., I Bill. 546, 3 Woodward & Dickerson v. L. & N. Rd., 15 I. C. C. R. 170 (6 Cir. 1910), ■ 367, 602 Worcester Exo. Car Co. v. Penn. Rd., 3 I. C. C. R. 577, 312, 315, 318 Wrigley v. C. C. C. & St. L. Ry., 10 I. C. C. R. 412, 205, 292 Wylie V. Northern Pacific Ry., II I. C. C. R. 145, 135, 245, 360, 562 XXXVl TABLE OF CASES. [References are to pages.] Wyman Partridge & Co. v. B. Y & M. Rd., 13 I. C. C. R. 258, 274 V. same, 15 I. C. C. R. 577, 274 Yeaton v. United Cranch 281, States, 5 122 CITATIONS FROM THE TARIFF CIRCULARS AND CONFERENCE RULING BULLETINS ISSUED BY THE INTERSTATE COMMERCE COMMISSION. TARIFF CIRCULAR 15-A. Rule 5 235 Rule 36 822 Rule 41 24 Rule 63 482 Rule 66 ; 877 Rule 74 457 Rule 77 284, 303 Rule 81 452 Rule 86 280 TARIFF CIRCULAR 16-A. In general 790 Rule 1 790 Rule 2 790 Rule 3 790, 791, 792 Rule 4 359, 360, 793, 794, 795 Rule 5 796 Rule 6 797 Rule 7 :.... 798 Rule 8 798, 799 Rule 9 800, 801, 802 Rule 10 789 Rule 11 801 Rule 12 803 Rule 13 782 Rule 14 783, 784 Rule 15 809 Rule 16 806, 807, 808 Rule 17 811 Rule 18 811, 812 Rule 19 813 Rule 20 814 Rule 21 814, 815 Rule 22 816 Rule 24; 817, 818 Rule 25 818 Rule 26 785 Rule 27 788 Rule 28 788 Rule 29 786 Rule 30 789 Rule 31 786 Rule 32 941 Rule 33 369 Rule 35 482 Rule 36 -470 Rule 40 485 Rule 41 486 Rule 42 53 Rule 46 280 TARIFF CIRCULAR 17-A. Circular in general.176, 710, 821, 887 Rule 1 712 Rule 2 712 Rule 3 712, 713, 714 Rule 4 359, 360, 715, 716, 717 718, 719, 720, 721, 722 TABLE OF CASES. XXXVll Rule 5 239, 754 Rule 6 709 Rule 7 179, 723, 724 Rule 8 733, 734 Rule 9 724, 725, 726, 727, 728 729, 730 Rule 10 698 Rule 11 766, 767, 768, 769, 770 Rule 12 768 Rule 13.. 679 Rule 14 679, 680, 681 Rule 15 756, 757 Rule 16 738 Rule 17 736, 737 Rule 18 738, 743 Rule 19 744 Rule 20 745 Rule 21 747 Rule 22 747, 748 Rule 23 748, 749 Rule 24..... 749 Rule 25 749, 750 Rule 26... 751, 752 Rule 27 753, 754, 755, 756 Rule 28 888 Rule 29 ,....710, 711, 887, 888 Rule 30 888, 889 Rule 31 889 Rule 32 889 Rule 33 890, 891 Rule 34 892, 893, 894, 895, 896 Rule 35 897 Rule 36 908 Rule 37 903, 904 Rule 38.. 898, 899, 900, 901, 902, 903 Rule 39 909, 910 Rule 40 910, 911 Rule 41 883, 884, 885, 886 Rule 42 905, 906, 912 Rule 43 922 Rule 44 923, 924 Rule 45 ..924, 925 Rule 46 925, 926 Rule [References are to pages.} Rule 48 927 Rule 49 927, 928 Rule 50 929, 930 Rule 51 931, 932 Rule 52 .915, 916, 917, 918 Rule 53 838, 839 Rule 54 689 Rule 55 234, 845, 846 Rule 56 208, 694 Rule 57..... .695, 822 Rule 58 691, 692, 693 Rule 59 761 Rule 62 837, 920 Rule 63 695 Rule 64 779, 845, 919 Rule 65 166 Rule 66 300, 303, 704 Rule 67 397, 398 Rule 69; 841, 842 Rule 70 760 Rule 71 777, 826, 932, 933 Rule 72 753, 930, 931 Rule 73 840 Rule 74 383, 486, 487, 699 Rule 75... 700 Rule 76 393 Rule 83 761 Supplement 1 240, 303, 753 47. CONPBRBNCB RULING BULLE- TIN No. 4. Rule Rule Rule Rule Rule Rule Rule 866 707 474 396 394 576 458 Rule 10 1034 Rule 11 246 Rule 12 730 Rule 13 752 926, 927 Rule 14 246, 247 TABLE OF OASES. Rule Rule Rule Rule- Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule Rule 29 53, 710 30 968 31 457 32 452 33 482, 758 34 482, 488 35. 36. 37. 39. 41. 42. 44. 45. 47. 48. 49. 50. 51. 52. 53. 56. 57. 58. 59. 60. 62 780, 836 64. 68. 69. 70. 71. 72. [References are to 639 Rule 474 Rule 389 Rule 706 Rule 415 Rule 484 Rule 826 Rule 628 Rule 832 Rule 832 Rule 844 Rule Rule Rule Rule Rule Rule Rule 879 Rule 759 Rule 869 Rule 456 Rule 943 Rule 485 Rule 842 Rule 562 Rule 731 Rule 471 Rule 639 Rule 734 -Rule 843 Rule 232 Rule 392 Rule 983 Rule 396 Rule 570 Rule 332 Rule 843 Rule Rule 427 Rule 639 Rule 943 Rule 735 Rule 836 Rule 383 Rule pages.'] 73 732 74 983 75 840 76 844 77 394 78 496, 705 79 510 80 391 81 832 82 839 83 368 84 179 86 685 87 484 88 982 89 98 90 627 91 361 92 865 93 371 95 860, 865, 961 96 458 97 426 98 242 99 831 100 731 102 864, 866 104 904 105 844 106 758 107 878, 915 108 982 109 865 110 576 111 640 112 867 113 372, 846 115 ; 843 116 844 117 461 118 483 119 ;. 391 120 636 121 510 TABLE OP CASES. XXXIX IReferences are to pages.'] Rule 122 453, 454, 455 Rule 171 867 Rule 123 455 Rule 172 238 Rule 124 489 Rule 173 860 Rule 125 841 Rule 174 860 Rule 126 618 Rule 176... 483 Rule 127 634 Rule 177 920 Rule 131 709 Rule -178 832 Rule 132 496 Rule 179 869 Rule 133 472 Rule 180 775 Rule 134 879 Rule 181 393 Rule 135 460 Rule 182 853 Rule 136 633 Rule 185 484 Rule 137 626- Rule 186 626 Rule 138 369, 839 Rule 187 474 Rule 140 371 Rule 188 476 Rule 141 722 Rule 189 869 Rule 142 460 Rule 190 365, 626 Rule 143 ;....365, 627 Rule 191 458 Rule 144 457 Rule 193 861 Rule 145 461, 710 Rule 196 863 Rule 146 710 Kule 197 89 Rule 147 232 Rule 198 628 Rule 149 1046 Rule 201 243 Rule 150 868 869 Rule 203 393 Rule 151 577 Rule 205 629 Rule 153 523 852 Rule 206 1040 1041 Rule 154 Rule 207 470 Rule 156 474 Rule 208. 872, 876 Rule 157 863 Rule 209. 941 Rule 158 864 Rule 210 - 49 Rule 160 206 Rule 211 53 Rule 162 102 Rule 213 369 Rule 163 577 Rule 214 362, 628 Rule 164 853 Rule 215 242, 243, 825 Rule 165 865 Ruie 217 485 Rule 166 394 Rule 218 872 Rule 167 636 Rule 221 576^ 845 Rule 168 366 Rule 223 447, 453 Rule 169 879 Rule 224 488 Rule 170 219 Rule 225 523 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 fi^om 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, or in any department or office thereof." Article 1, Section 8, Paragraph 18. "The powers not delegated to the United States by the Consti- tution, nor prohibited by it to the Statee, are reserved to the States respectively or to the people." Amendment X (declared ratified 1791). FEDERAL REGULATION OF II^TERSTATE TRANSPORTATION CHAPTEE 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 commerce 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 Cullom 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. v. Baltimore &c. R. Co., 145 TJ. 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. EEGtrLATION 1. 2 INTEKSTATE TRANSPORTATION. 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 seemed 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 case of Gibbons v. Ogden,^ decided in 1824, that it was authori- 3 Gibbons v. Ogden, (1824), 9 Wheat. (TJ. S.) 1, 6 L.. ed. 23. The power to regulate commerce, as laid down in this case, is considered and ap- proved in Brpwn v. State of Maryland (1827), 12 Wheat. (U. S.) 419, 446, 452, 6 L. ed. 23, and in Passenger Cases, Smith v. Turner (1849), 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 navigation as connected with foreign nations and among the States. It was so held and decided by this court, in the case of Gib- bons V. Ogden, 9 Wheat. (1824), (U. S.) 189 to 198, 6 L. ed. 68, reversing 17 Johns (N. y.) 488. 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. ? 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 most 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, IS L. ed. 96; Veazle v. Moore, 14 How. (U. S.) 568, 14 L. ed. 545; Withers v. Buckley, 20 How. (U. S.) 84, 15 L. ed. 816; U. 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; Heelman v. Beefman Co., 1 Fed. Rep. 145; U. S. v. Morrison, 4 N. Y. Leg. Obs. 833; U. S. v. Jackson, 4 N. Y. Leg. Obs. 450. 4 INTEESTATE TRANSPORTATION. "With the application of steam as 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 Government 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 case 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 Brie with the Ohio at Portsmouth, at Cincinnati, and at Bvansville, 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- y HISTOEICAL ANTECEDENTS. ciated 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; 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 affirmative 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 4 Wheeling Bridge Case, 13 How. (U. S.) 518, 14 L. ed. 249. 5 Ward V. Maryland (1870), 12 Wall. (U. S.) 418, 20 L. ed. 449. 6 Welton V. State of Missouri, 91 U. S. 275, 23 L. ed. 347. b IN-TEESTATE TKANSPOETATION. 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 afSrm 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 mieasure 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 abnormal 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- 'peetations 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 TEANSPOETATION. 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 eases to render successful competition, as against those who had them, practically impossible. "The system of making special arrangements 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 HISTORICAL ANTECEDENTS. 9 in some eases 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 con- 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 INTEESTATE TRANSPORTATION. 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 corruptiag; 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 HISTOKICAL 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 sufficient 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 all 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 in enlisting the assistance and support of the holder than its value in money would have been, and in a great many cases 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 HISTOKICAL ANTECEDENTS. 13 it for the interest of the railroad company to favor him, 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 efEected and the high rates perpetuated by that means. In some cases 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, difScult 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 INTERSTATE TEANSPOETATION. tematie 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. From 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 overeonfi- dence 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 co.rporate 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 INTEESTATE TKANSPOETATION. from excessive burdens imposed upon the commerce which the nation ought to regulate and protect."^ "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 ease 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 (1886), 118 U. S. 5-57, 30 L. ed. 244; 7 Sup. Ct. 4. Previo.us 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. HISTOKICAL ANTECEDENTS. 17 for local transportation by rail, Congress established for all interstate and foreign traffic of the same description. Different theories have been entertained as to the control and regulation by governments of the means of transporta- tion. One theory is that the government itself shall own, control, and operate the transportation facilities, which, as applied to our country, would involve government ownership and operation, either by the General Government or by the State governments or by the two together or separately. Another theory is that the facilities of _ transportation shall be left wholly to development by private parties for gain, and that the private owners of such transportation facilities shall be permitted to exercise control over their own opera- tions, leaving to the natural force of competition such regula- tion as may be required. Another theory is that the government, having granted to private persons or corporations certain rights, such as the right of eminent domain, shall commit the construction, control, own- ership, and operation of railroads and other facilities of trans- portation to private owners, with the power exercised on the part of the government to regulate the methods used by the owners and operators of such transportation facilities, includ- ing the right to regulate the charges to be made and the facili- ties afforded. The latter is the theory adopted by most, if not all, of our State governments and adopted by the General Government through the passage in 1887, of the law known as "The Act to Regulate Commerce." For a copy of the original Act, as well as all other Acts supplementary thereto and amendatory thereof, see Ap- pendices. Regulation — 2. CHAPTEE II. GENESIS, 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. Employes of the Commission. 7. Oflaces of the Commission. 8. Address of the Commission. 9. Supplies of the Commission. 10. Expenses of the Commission. 11. Sessions of the Commission. ( General. 1 Special. 12. Special Counsel. • 13. Special Agents or Examiners. 14. Departments of the Commission and Distribution 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. 18 19 ORGANIZATION OF COMMISSION. [§§ 1-3 §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. Number. 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 U. S. 447; 38 L. ed. 1047; 14 Sup. Ct. Rep. 1125. 2 I. C. C. V. C, N. O. & T. P. Ry. Co., 167 II. S. 479; 17 Sup. Ct. Rep. 896; 46 L. ed. 243. 8 Act to Regulate Commerce approved Feb. 4, 1887, 24 Statutes at Large, 379, Section 11. » Act, Section 24. 5 Act, Section 11. § 3] INTERSTATE TKANSPOETATION. 30 ment of June 29, 1906, increased the number to seven members." H B. Qualifications. No person in the 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.' H C. How Appointed. The Commissioners are appointed by the President of the United States, by and with the advice and consent of the Senate." 1[ D. 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. 8 Act, Section 24. » Act, factions 11 and 24. 10 Act, Section 24. ' 11 Act, Section 11. 12 Act, Section 24. 21 ORGANIZATION OF COMMISSION. [§ 3 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." T[ P. 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. Tf 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. T[H. Eemoval from Office. 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). 11 Eighteenth Annual Report of I. C. C. (1904). 15 Act, Section 24. i« Act, Section 18. 17 Act, Section 11. 18 Act, Section 24. 18 Ibid. §§ 4, 5] INTERSTATE TKANSPOKTATION. 22 Tf I. Original Members. The Oommission 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. Aldace 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. Cockrell, 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 Commission. 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- man, 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. 33 ORGANIZATION OF COMMISSION. [§ 6 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 Secretary to preserve, as public records, all copies of schedules and classi- fications, and tariffs of rates, fares, and charges, and of all con- tracts, 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 9f 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. §§ 7-9] INTERSTATE TEANSPOETATION. 24 iners, agents, inspectors, tariff clerks, rate clerks, etc. The report of the Commission for the year 1909 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 eases, including oral argument, are held.^° §8. Address of the Oommission. All complaints concerning anything done or omitted to be done by any common carrier, and all petitions or answers in any proceediag, 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 Act, Section 18. 28 Act, Section 19. 29 Rule 1, Rules of Practice before the I. C. C. 30 Rule 21, Rules of Practice before the I. C. C. ' SI Rule 41, Commission's Tariff Circular 15- A. i S2 Act, Section 18. 25 OEGANIZATION OF COMMISSION. [§§ 10, 11 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 Commission 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 public interest.'^ §11. Sessions of the Commission |gp^^^^- If 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. 85 United States v. Moseley, 187 U. S. 322; 47 L.. ed. 198, 23 Sup. Ct. 90, affirming the judgment of the Court of Claims. § 13] INTERSTATE TRANSPOETATION. 36 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.^' 1[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 employ such attorneys as it finds nec- essary for proper legal aid and service of the Commission or its members in the conduct of their work or for proper repre- sentation of the public interests in investigations made by it or cases or proceedings pending before it, whether at the Com- mission's own instance or upon complaint, or to appear for and represent the Commission in any case pending in the Com- merce Court; and the expenses of such employment shall be paid out of the appropriation for the Commission.^" 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 eases 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. 36 Act, Section 19. 37 Third Annual Report of I. C. C. (1889). 38 Act, Section 19. 39 Act, Section 16, (as amended June 18, 1910). 27 OEGANIZATION OF COMMISSION. [§ 12 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 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 *o Seventeenth Annual Report of I. C. C. (1903), page 32. § 13] IJSTTBESTATE TRANSPORTATION. 28 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 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 manner 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 : "All must recognize the fact tnat 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 corhmerce 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 req^uired 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 *i Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 14 Sup. Ct. 1125. 39 ORGANIZATION OF COMMISSION. [§ 13 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 vrhich involves a questioii 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 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 case by appointing some one to appear at the expense of the Government in the public interest. * * * * jf Q^p 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. 1[A. Special Agents or 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, § 14] INTERSTATE TKANSPOETATIOST. 30 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 C, post. If B. Special Agents or Examiners 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 power to administer oaths, examine witnesses, and receive evi- dence.*^ TI C. Punishment oe Speciai Examinee who Divulges Pacts OR 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 y,ears, or both.** § 14. Departments of the Commission and Distribution of its Duties. For the systematic and efficient performance of its duties, the employes of the Commission have been organized into sev- eral 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. P. Division of Prosecution. 42 Act, Section 20. 43 Act, Section 20. it Ibid. 31 OEGANIZATIOSr OF COMMISSION. ' [§ 14 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: TJA. Operating 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 the several branches thereof, brief reference being here made to the work of the more im- portant branches. Branch in Charge of the Docket Work. 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 § 14] INTERSTATE TRANSPORTATION. 32 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 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 work 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 ears 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 office 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.*" *5 Annual Reports of I. C. C, 3d C1889), 13th (1899), 17th (1903), ISth (1904). *8 Annual Reports of I. C. C, 17tli (1903), 18th (1904). 33 ORGANIZATION 0¥ COMMISSION. [§14 Branch in Charge of Accident Reports. Under the Act of March 3, 1901, better known as the Accident Eeports Act/^ all common carriers engaged in 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 from 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 " Accident Reports Act, approved March 3, 1901, 34 Statutes at Large, 823. See Appendix for copy of Act. 48 Annual Report of I. C. C, 17th (1903), 18th (1904). 49 Annual Reports of I. C. C, 13th (1899), 17th (1903). 50 Ibid. Eegulation — 3. § 14] INTERSTATE TRANSPORTATION. 34 of the Oommission, the quarterly bulletins of accidents, the decisions and opinions of the Commission, and miscellaneous documents published by the Commission.^^ 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 Commission.^^ 1[B. Division of Eatbs and Transportation. 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 51 Annual Reports of I. C. C, 13th (1899), 17th, (1903). 52 Ibid. 68 Annual Reports of I. C. C, 3d (1889), 13th (1899), 18th (1904). 35 OEGANIZATION OF COMMISSION. [§ 14 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. ^^ 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. T[ C. BuEEAu OF 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 that 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 54 Annual Reports of I. C. C, 13th (1899), 17tli (1903). 55 Annual Reports of I. C. C, Sd (1889), 13th (1899), 18th (1904). 5s Ibid. 67 Ibid. §14] INTERSTATE TKANSPORTATION. 36 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. 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 Railways. 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 as hereinafter explained. Meantime the development of the work was such as to make advisable a change in the title, the title adopted being "Bu- reau 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 58 Annual Reports of I. C. C, 13th (1899), 17th (1903). 68 Twenty-Second Annual Report of I. C. C. (1908). 60 Twenty-Third Annual Report of I. C. C. (1909). 37 ORGANIZATION OF COMMISSION. [§ 14 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 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.'"^ 81 Twenty-Third Annual Report of I. C. C. (1909). 62 Ibid. § 14] INTERSTATE TEANSPOETATION. 38 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 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 ease 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.«= 63 Annual Report of I. C. C, 21st (1907), 22d (1908). 84 Twenty-Second Annual Report of I. C. C. (1908). 05 Ibid. 39 OEGANIZATION OF COMMISSION. [§ 14 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- 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 general 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- es Twenty-Second Annual Report of I. C. C. (1908). 67 Twenty-Third Annual Report of I. C. C. (1909). § 14] INTERSTATE TRANSPORTATION. 40 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 groups or territorial divisions of the country referred to are as follows r"^ 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. Division of Claims. The Division of Claims is charged with the investigation 68 Fifth Annual Report of I. C. C. (1891). 68 Tenth Annual Report of I. C. C. (1896). 41 OEGANIZATION OF COMMISSION. [§14 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 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. U B. 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 departinent 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. HF. Division of Pkosecutions. 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 70 Twenty-Second Annual Report of I. C. C. (1908). 71 Ibid. 72 Ibid. §§15,16] INTERSTATE ■ TKANSPOKTATION. 43 the law, it becomes the duty of this division to make such investigations as may be necessary to determine vfhether or not the matter is one proper to be brought to the attention 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 ^7; post. §16. Administrative Rulings, General Orders, Opinions and Tariff Regulations of the Commission. T[A. Administrative Eulings and Opinions. "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 le'gislation 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 cases, 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 Vith the opinion of the Commission. The benefits of this course are beyond question. The Com- 73 Annual Reports of I. C. C, 21st (1907), 22d (1908). 43 OJIGANIZATION OF COMMISSION. [§ 16 mission has endeavored to adopt a workable construction of the law in all cases, and has, as a rule, announced its con- clusions in matters of importance only after conference and discussion with representative shippers and traf&c 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 coinmon 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."" 74 Twenty-First Annual Report of I. C. C. (1907). 76 Twenty-Second Annual Report of I. C. C. (1908). 76 Twenty-Third Annual Report of I. C. C. (1909). § 16] INTERSTATE TRANSPORTATION. 44 The authority of the Interstate Commerce Commission to make general orders in proper cases seems to be substan- 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 affected, 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." ITB. Tariff Eegulations. 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 of 1906, the time of notice of changes in rates required by the Act was too short to give stability to conditions of transportation, even if the terms of law had been carefully observed. Tariffs were 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 77 Import Rate Case, Texas & Pacific Railway Co. v. Interstate Com- merce Commission (1895), 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666. 45 ORGANIZATION OF COMMISSION. [§ 16 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 to provide an index of its tariffs, and a methodical cheek 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- § 16] INTBKSTATB TRANSPOETATION. 46 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. Simpliflcation 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 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- 79 Act, Section 1. 80 Ibid. 47 ORGANIZATION OP COMMISSION. [§ 16 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 tariifs. 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 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."" 81 Annual Reports of I. C. C, 21st (1907), 22d (1908). §§17, 18] INTERSTATE TRANSPORTATION. 48 § 17. Reports of Investigations, Decisions, Orders and Re- quirements of the Comunission. 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 case 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.*' § 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 ofii- 82 Act, Section 14. 83 Riddle, Dean & Co. v. P. & L. E. R. R. Co. (1888), 1 I. C. R. 773. 49 ORGANIZATION OF COMMISSION. [§ 19 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 the scope of the effort 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 84 Rule 210, Con. Rul. Bui. No. 4 (Nov. 16, 1908). Eegulation — 4. § 20] INTERSTATE TEANSPORTATION. 50 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 eiilarged 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, 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- 85 Annual Reports of I. C. C, 14th (1900), 17th (1903), 18th (1904). 80 Act, Sections 14 and 21. 51 OEGANIZATION OF COMMISSION. [§ 21 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 eases 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 Report of the Interstate Commerce Commission to Congress. Annual Report on the Statistics of Railways in the United States. Preliminary Report on the Income of Railways in the United States. Railways 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 by railroad commis- sions. Tendency as to incorporation of railway companies. State railway statutes. 87 Act, Section 21. 88 25 Statutes at Large, 855. § 23] INTERSTATE TEANSPOKTATION. 58 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 Eegulations 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 C&n- 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 Official 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 officers 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 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 53 OEGAKIZATION 01" COMMISSION. [§§33,24 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 implied by the Interstate Commerce Law to decide issues arising under it.®^ The jurisdiction of the Commission, and its powers and duties relating to the various subjects of transportation, are fully treated of in this work under appropriate chapters. 89 Rule 211, Con. Rul. Bui. No. 4 (Nov. 16, 1908); Rule 42, Tariff Cir- cular 16-A. 90 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. 92 Brewer v. C. of Ga. Ry. Co. et al. (1898), 84 Fed. Rep. 258. CHAPTEE III. NATURE AND LEGAL STATUS OF INTERSTATE COMMERCE COMMISSION. §25. Nature and Legal Status of Body. The Federal Cocstitution 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 of&ce 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 Regulate 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 1 Art. 3, Section 1, Federal Constitution. ,54 55 ■ NATURE AND LEGAL STATUS OF COMMISSION. [§ 25 order or report of the Commission in all cases where the party against whom its decision is rendered does not yield voluntary obedience 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 effect 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 qtiasi-jndicial 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 2Ky. & Ind. Edge. Co. v. L. & N. R. Co., 37 Fed. Rep. 567 (1889). 8 Shlnkle, Wilson & Krels Co. v. L. & N. R. R. Co. et al., 67 Fed. Rep. 690; 5 I. C. R. 282 (1894). 1 Ky. & Ind. Edge. Co. v. L. & N. R. Co., 37 Fed. Rep. 567 (1889). s I. C. C. V. C, N. O. & T. P. Ry. Co., 76 Fed. Rep. 183 (1898). 8 I. C. C. V. L. & N. Rd. Co., 73 Fed. Rep. 409 (1896). § 25] INTERSTATE TKANSPOETATION. ' 56 Courts.' Such proceeding is only quasi^judicial and admin- istrative in its nature.' The qiMsi-jndicial 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 their various amendments. Its function is to administer the Act to Regu- late Commerce 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 colnplaints, 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 7 Re Application, of I. C. C. for an order upon W. G. Brimson et al. to answer questions, 4 I. C. R. 315 (1892). 8 I. C. C. V. L. & N. Rd. Co., 73 Fed. Rep. 409 (1896). I. C. C. V. C, N. O. & T. P. Ry. Co. (1894), 64 Fed. Rep. 981. 10 1. C. C. V. L. & N. Rd. Co. et al., 118 Fed. Rep. 613 (1902). 11 T. & P. Ry. Co. V. X. C. C, 162 U. S. 197; 16 Sup. Ct. Rep. 666; 40 L. ed. 940 (1896). 12 Haines v. C, R. I. & P. Ry. Co. et al. (1908), 13 I. C. C. R. 214. 13 Missouri & Kansas Shippers' Association v. M., K. & T. Ry. Co., 12 I. C. C. R. 438 (1907). 14 N. Y. C. & H. R. R. R. Co. et al. v. I. C. C. (1909), 168 Fed. Rep. 131. 57 NATUKB AND LEGAL STATUS OF COMMISSION. [§ 35 having gtiasi- judicial functions; when it determines what the rate should have been and shall be in the future; it 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. Eeparation 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.^" The Commission has no common law jurisdiction.^^ For in- 15 Washer Grain Co. v. M. Pac. Ry. Co. (1909), 15 I. C. C. R. 147. 16 United States v. M. C. Rd. Co. (1903), 122 Fed. Rep. 544; Railroad Commission of Ohio v. W. & L. E. Rd. Co. (1907), 12 I. C. C. R. 398. "Jones V. St. Louis & S. F. Rd. Co. (1907), 12 I. C. C. R. 144. § 25] INTEESTATE TKANSPOETATION. 58 stance, it has no power to enforce the specific performance of contractual obligiations 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. ^^ 18 Traders' and Travelers' Union v. P. & R. Rd. So. (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. 19 Council V. W. & A. Rd. Co. (1887), 1 I. C. C. R. 339; 1 I. C. R. 638. 20 Duncan v. A. T. & S. P. Ry. Co. (1893), 6 I. C. C. R. 85; 4 I. C. R. 385. 21 T. & 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. Rd. Co. (1907), 153 Fed. Rep. 979. 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. Intraterritorial Transportation. 30. Transportation within the District of Columbia. 31. Foreign Commerce. 32. Interstate Railroads. 33. State Railroads engaged in Interstate Commerce. 34. State Telegraph and Telephone Companies Engaged in the Trans- mission of Interstate Messages. 35. Express Companies. 36. Sleeping Car Companies. 37. Telegraph Companies. 38. Telephone Companies. 39. Cable Companies. 40. Fast Freight Lines. 41. Terminal and Belt Railroads handling Interstate Traffic. 42. Foreign Railroads. 43. Bridges and Bridge Companies. 44. Ferries and Ferry Companies. 45. Pipe Lines. 46. Private Car Companies. 47. Inland Water Carriers. 48. Ocean Carriers. 49. Intraterritorial Common Carriers. 50. Street Railways within the District of Columbia. 51. Receivers and Trustees of Common Carriers. 52. Successors to Common Carriers and Purchasers Pendente Lite. 53. Nature of Organization of the Carrier Immaterial to the attach- ing of Jurisdiction of Commission. 59 § 26] INTERSTATE TRANSPORTATION. 60 §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 Eepresentatives of the United States of America in Congress assembled. Section 1 of the Act {as amended June 2Q, igo6, and June i8, 1910): "That the provisions of this Act shall apply to any corporation or any person or persons engaged in the transpor- tation 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, and to telegraph, telephone, and cable com- panies (whether wire or wireless) engaged in sending mes- sages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country, who shall 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 passengers or property wholly by railroad or partly by railroad and partly by water, when both are used un- der 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 61 TKANSPOETATION AND CAEEIEES SUBJECT TO ACT. [§ 36 such place from a port of entry either in the United States or an adjacent foreign country. Express Companies and Sleeping-Gar Companies included. "The term 'common carrier,' as used in this Act, shall in- clude express companies and sleeping-car companies. Term "Railroad" defined. "The term 'railroad,' as used in this Act, shall include any bridges and ferries used or operated in 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 ; and to provide reasonable facilities for operating such through routes and to make reasonable rules and regulations with respect to the exchange, interchange, and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto." § 37] INTEESTATB TEANSPOETATION. 63 Term "Carrier" defined. Section 6 of the Act provides that "wherever the vpord 'carrier' occurs in the Act, it shall be held to mean 'common' carrier. ' '^ §27. Synopsis of the Carriers and Transportation Subject to the Act. 1. 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- (a) By pipe lines, (b) Partly by pipe lines and partly by railroad. (c) Partly by pipe lines and partly by water. 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 car companies. 3. Companies engaged in sending messages from one State, 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 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 JJ. 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. 63 TEANSPOETATION AND CARRIERS SUBJECT TO ACT. [§37 Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country •? (e) Telegraph Companies. (f) Telephone Companies. (g) Cable Companies. . Whether wire or wireless. As follows: From one State or Territory, of the United States, jor 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 coilntry 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 for- eign country.^ Examples. 1. Prom 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. 2 From a careful reading of the statute it would seem that tele- graph, telephone and cable companies operating wholly within a ter- ritory, or the District of Columbia, are exempt from the jurisdiction of the Interstate Commerce Commission as well as the transportation over such lines which is confined wholly within the above named districts. 3 Act to Regulate Commerce, Section 1. § 37] INTERSTATE TEANSPOETATION. 64 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. 14. 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. 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.^ « T. & P. Ry. Co. V. I. C. C, 162 U. S. 197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940. sMattingly v. Penna. Co. (1890), 2 I. C. R. 806, 3 I. C. C. R. 592. 65 TEANSPOETATION AND CAEKIEKS SUBJECT TO ACT. [§ 38 §28. Interstate Trajisportation. TfA. Control of Congeess over Interstate Commerce. 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 property, 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 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 reqi:^ire uniformity of regulation affecting alike all the States, the power of Congress is ex- elusive. The commerce between the States which consists in the transportation of persons and property between them, is a subject of national 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.'' 6 Federal Constitution, Article 1, Section 8, Paragraph 3. ^ Gloucester Ferry Co. v. State of Pennsylvania (1885), 114 U. S. 196; 29 L. ed. 158, 5 Sup. Ct. 826. When the subjects 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 Eegulation — 5. § 28] INTERSTATE TRANSPOETATION. 66 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 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; Bscanaba 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; Harman v. City of Chicago, 147 U. S. 396; 37 L. ed. 216, 13 Sup. Ct. 306; Bowman v. C. & N. W. Ry., 125 U. S. 465; 31 L. ed. 700, 8 Sup. Ct. 689, 1062; Leloup v. Bort of Mobile, 127 U. S. 640, 32 L. ed. 311, 8 Sup. Ct. 1101; Crutcher 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; Bobbins 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. Pacific Mail S. S. Co., 58 U. S. 596, 15 L. ed. 254; Cooley v. Board of Port Wardens, 12 How. (TJ. S.) 299, 13 L. ed. 996. 8 In Re Charge to Grand Jury (1907), 151 Fed. Rep. 834. 67 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 28 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 subject to the provisions of the Act to Regulate 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.^^ Tf B. Extent op the Interstate Commerce Sub.ject to the Provisions op the Act to Eegulate Commerce. Under the terms of Section 1 of the Act to Eegulate 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 » Welton V. Mo., 91 XJ. 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 U. 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; affirming Re Hennick (1887), 5 Mackey, (D. C.) 489. 11 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. § 28] INTERSTATE TRANSPOKTATION. 68 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. (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. 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. (e) Express companies. (d) Sleeping-car companies. 3. Companies engaged in sending messages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country : (e) Telegraph Companies. (f) Telephone Companies. (g) Cable Companies. . Whether wire or wireless. 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. Bxamples. 1. From 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. 69 TRANSPOKTATION AND CAEEIEKS SUBJECT TO ACT. {§ 28 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 Columljia 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. 1[ C. Chaeactee of Shipment as Inteestate Commeece DETEEMINED BY CoNTEACT OP 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.^' AVhether 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 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- 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. "Gulf, 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. 16 The Daniel Ball, 10 Wall. (U. S.) 557; 19 L. ed. 999; Ex Parte Koehler, Rec. (1887), 30 Fed. Rep. 807. § 28] INTEESTATE TEANSPOKTATION. 70 yond the limits of the State where delivered to the carrier, the character of interstate commerce attaches thereto.^*' U-D. Effect of 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 within 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.'^* TfE. Transportation beginning and ending in one State, BUT PASSING through AN ADJOINING StATE OR TERRITORY. 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 Regulate Commerce.^' 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 Railroad Commission of Arkansas cannot, without violating le Houston, etc., Co. v. Insurance Co. of North America (1895), 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. 18 Hood & Sons v. D. L. & W. Rd. Co., 17 I. C. C. R. 15 (1909). isHanley v.' K. C. S. Ry. Co. (1903), 187 U. S. 617; 23 Sup. Ct. Rep. 214; 47 L. ed. 333. See also New Orleans Cotton Exchange v. C, N. O. &. 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. 71 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 28 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 traffic, what would stop it? Certainly not the fic- tion that the commerce was confined to Arkansas. If it could not interfere, the only reason 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 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 aiHanley v. K. C. S. Ry. Co. (1903), 187 U. S. 617; 23 Sup. Ct. Rep. 214; 47 L. ed. 333. 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. 23 Lord V. Goodall, N. & P. S. S. Co., 102 U. S. 541; 26 L. ed. 224. 21 Pacific Coast S. S. Co. v. Railroad Commissioners, etc., 9 Sawy. (U. S.) 253; 18 Fed. Rep. 10. § 39] INTERSTATE TRANSPORTATION. 73 during the entire voyage under the exclusive jurisdiction of the State. "2= 1[ P. Transportation from ant place in the United States THROUGH A FOREIGN COUNTRY TO ANT OTHER PLACE IN THE United States. Section 1 of the Act to Eegulate 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.^" 1[ G. Interstate Transportation handled by a State Eailroad. See "State Railroads Engaged in Interstate Commerce" Sec- tion S3, post. § 29. Intraterritorial Transportation. 1[A. Control of Congress over Intraterritorial Trans- portation. A territory, under the Constitution and laws of the United 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. E. 836. See also Milk Producers' Pro. Assn. v. D. L. & W. R. Co., 7 I. C. C. R. 92, 160. 28 United States Constitution, Article 1, Section 8, Paragraph 3. 73 TEANSPORTATION AND CAEKIEES SUBJECT TO ACT. [§ 29 States, is an inchoate State, — a portion of the country not in- cluded within the limits of any State, and not yet admitted as a State into the Union, but organized under the laws of Con- gress, with a separate legislature, under a territorial governor and other officers appointed by the President and Senate of the United States.=»^ The United States Constitution^'i" 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 Ex parte Morgan. (1883) 20 Fed. Rep. 305. 26b United States Constitution, Article 1, Section 8, Paragraph 3. § 29] IKTEESTATE TRANSPORTATION. 74 complete. No State of the Umon 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. 356 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 of the Act to Transportation between POINTS WITHIN A TERRITORY. Section 1 of the Act to Regulate Commerce provides that it shall apply "to any corporation or any person or persons engaged in the transportation of oil or other commodity, ex- 27 American and O. Ins. Cos. v. 356 Bales of Cotton, 1 Pet. (U. S.) 511-542, 7 L. ed. 243, cited De Lima v. Bidwell (1900), 182 U. S. 1, 45 L. ed. 1041; See Dorr v. United States (1904), 195 U. S. 138; 49 .L. ed. 128, 24 Sup. Ct. Rep. 808. See early case of Sere v. Pitot (1810), 6 Cranch 332, 3 L. ed. 240. 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. aoBaer Bros. Merc. Co. v. Mo. Pac. Ry. (1908), 13 I. C. C. R. 329; reaffirmed in Nollenberger v. M. P. Ry. Co. et al. (1909), 15 I. C. C. R. 595. 75 TEANSPORTATION AND CAREIEES SUBJECT TO ACT. [§ 30 eept 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 shall be considered and held to be common carriers within the mean- ing and purpose of this Act, and to any common carrier or car- riers 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 arrangement for a continuous carriage or shipment) * * * from one place in a Territory to any other place in the same Territory." Prom 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. A careful reading of the statute, however, does not disclose any jurisdiction in the Interstate Commerce Commission over telegraph, telephone or cable companies operating solely with- in the limits of a territory nor over the transmission of intra- territorial messages. However, with the admission of Arizona and New Mexico into the Union as States, there will be no further need for this jurisdiction. §30. Transportation within the District of Columbia. T[ A. Control of Congeess over Teanspoetation within the DisTEicT 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 * * *."^^ 31 Federal Constitution, Article 1, Section 8, Clause 17. § 30] INTERSTATE TEANSPORTATION. 76 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- stitution.'^ 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.'* U B. Application of the Act to Transportation within THE District of Columbia. By the first section of the Act to Kegulate 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 32 Cohens v. Virginia (1820), 6 Wheat. (U. S.) 264, 5 L. ed. 257. 83 United States v. McFarland (1907), 20 App. D. C. 552. 34 The Employers' Liability Cases (1908), 207 U. S. 463, 28 Sup. Ct. 141. 77 TRANSPOKTATION AND CAKEIEES SUBJECT TO ACT. [§ 31 provisions of the Act to Regulate 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. A careful reading of the statute, however, does not disclose any jurisdiction in the Interstate Commerce Commission over telegraph, telephone, or cable companies operating solely with- in the limits of the District of Columbia nor over the trans- mission of messages between two places within such District. § 31. Foreign Commerce. 11 A. Control of Congress OAnER the Foreign Commerce of THE United States. Congress assumed control over the commerce between the United States and foreign countries under the commerce clause in the Federal Constitution, which provides:'* "That Congress shall have power to regulate commerce 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 85 District of Columbia Street Railways Act, approved May 23, 1908. See Appendix for copy of Act. s8 Federal Constitution, Article 1, Section 8, Paragraph 3. § 31] INTERSTATE TEANSPOKTATION. 78 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 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 79 TRANSPORTATION AND CAKRIEES SUBJECT TO ACT. [§ 31 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- 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 tn 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 37 New York Board of Trade & Transportation v. P. R. R. Co. et al. (1891), 3 I. C. R. 417, 4 I. C. C. R. 447. 38 In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. ' § 31] INTERSTATE TRANSPORTATION. 80 to such place from a port of entry, either in the United States or an adjacent foreign country. 4. Messages sent from the United States to any 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 different classes are treated of in their respective order in the following paragraphs: % C. Transportation oe Passengers or Property from any 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 on the original Act to Regulate 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 39 Re Investigations of Acts of Grand Trunk Ry. Co. (1889), 3 I. C. C. R. 87; 2 I. C. R. 496. 40 Lykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. 81 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 31 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. 1[ D. Transportation op Property prom ant place in United States to a Foreign Country (not adjacent) and CARRIED prom SUCH PLACE TO A PORT OE TRANSSHIPMENT. Section 1 of the Act to Eegulate 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 * * *." The Interstate Commerce 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 Tork 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 41 Re Investigations of Acts of Grand Trunk Ry. Co. (1889), 3 I. C. C. R. 87; 2 I. 0. R. 496. Eegulation — 6. § 31] INTERSTATE TBANSPOETATION. 83 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 Act.*^ See "Ocean Carriers," Section Jt8, post, for further explanation. T[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 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. Y., imported via the port of New York, is subject to the provisions of the Act to Regulate Commerce from New York City to Albany, although such movement is confined within one State. « T. & P. Ry. Co. V. I. C. C, 162 U. S. 197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940. 83 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 32 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 48, post, for further explana- tion. If P. Messages sent erom the United States to ant Foreign Country. Section 1 of the Act to Kegulate Commerce (as amended June 18, 1910) states that its provisions shall apply "to tele- graph, telephone and cable companies (whether wire or wire- less) engaged in sending messages from one State, Territory, or District of the United States * * * to any foreign country. ' ' §32. Interstate Railroads. Tf 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 froin 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 Regulate Commerce and to the jurisdiction of the Interstate Commerce Commission.** The Act provides that the term "railroad" as used there- 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 43 Railroad Commission of Georgia v. Clyde S. S. Co. et al. (1892), 4 I. C. R. 120; 5 I. C. C. R. 324. 44 Willson V. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. R. 83. § 32] INTERSTATE TRANSPORTATION. 84 operated under a contract, agreement, or lease, and shall include all switches, spurs, tracks, and terminal facilities of every bind 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 & Nevsr River Railroad Co. v^as 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." 1[B. Steam Railroads. The Act to Regulate Commerce makes no distinction 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 the transportation of passengers or property as described in the Act." ^5 Act, Section 1. 48 Heck et al. v. B. T., Va. & Ga. R. Co. (1S88), 1 I. C. R. 775, 1 I. C. C. R. 495. " Act, Section 1. *8 Ibid. 85 TEANSPOETATION AND OAEKIEES SUBJECT TO ACT. [§ 32 • U C. Electeic 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 tarifE 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 Regulate 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.^^ *9 See Rule 2, Con. Rul. Bui. No. 4 (Nov. 4, 1907). 50 Wlllson V. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. R 83. 51 C. & M. Elect. R. R. Co. V. 111. Cfent. 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. Temporary re- straining order granted, Omaha & C. B. St. Ry. Co. et al. v. I. C. C. (1910) 179 Fed. Rep. 243. § 33] INTERSTATE TRANSPOKTATION. 86 §33. State Railroads Engaged in Interstate Commerce. TJA. Present 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 eontrol.^^ 63 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 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, 87 TEANSPOETATION AND CAEKIERS SUBJECT TO ACT. [§ 33 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 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- state shipment passes is engaged in interstate commerce with 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. kep. 4; Kidd v. Pe3,rson, 128 U. 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. S48; 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. s-iBaer Bros. Merc. Co. v. Mo. Pac. Ry. (1908), 13 I. C. C. R. 329; reaffirmed in Nollenberger v. M. P. Ry. Co. et al. (1909), 15 I. C. C. R. 595. § 33] INTERSTATE TEANSPOETATION. 88 respect to such shipment and subject to the law regulating the same, although its line may I'e wholly within one State.^' The importation into one Stat' 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. 58 Willson V. Rock Creek Railway of Dist. of Col. (1887), 7 I. C. C. R. 83. 5T Cassatt et al. v. Mitchell C. & C. Co. (1907), 150 Fed. Rep. 32; 81 C. C. A. 80. 58 United States v. Standard Oil Co. of Indiana (1907), 155 Fed. Rep. 305. 59 Ibid. 89 TEANSPOKTATION AND CAEEIEES SUBJECT TO ACT. [§ 33 to the jurisdiction of the Commission and the provisions of the Act, if it J^ftnsports express matter for an express company that is subjt "■ 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 "Common Control, Management, or Arrangement for a Continuous Carriage or Ship- ment," Paragraph B, infra. ^ B. Common Conteol, Management, ok Akrangement for a Continuous Carriage oe 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, 80 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. § 33] 1NTEE8TATE TRANSPORTATION. 90 or arrangement," applied to a route composed wholly by railroads, as well as by one which was part|^ by railroad and partly by water. See Paragraph G, infra, for the syllabi of the most important decisions by the Federal Courts and the Interstate 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 terms 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 91 TEANSPOETATION AND CAERIERS SUBJECT TO ACT. [§ 33 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."^ If C. Syllabi of some op the most important cases affect- ing State Eaileoads decided by the Federal Courts AND the Commission under the old law prior to June 29, 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 traflc carried through or over all rail or part water and part rail lines. The receipt successively by two or more carriers for transportation of traffic 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- as 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. 6* C, N. O. & T. P. Ry. Co. v. I. C. C. (1896), 162 TJ. S. 184; 40 L. ed. 935; 5 r. C. R. 391; 16 Sup. Ct. Rep. 700, so-called "Social Circle" case. § 33] INTERSTATE TRANSPORTATION. 93 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 conventional 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. G. C, supra,^^ it was decided in the case of the United States, ex rel. Interstate Commerce Commission v. Seaboard By. Co.,^^ "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. (1S96), 162 U. S. 184; 40 L. ed. 935; 5 I. C. R. 391; 16 Sup. Ct. Rep. 700, so-called "Social Circle" case. «6 I. C. C. V. S. A. L. Ry. Co., 82 Fed. Rep. 563 (1897). 87 I. C. C. V. Bellaire, Z. & C. Ry. Co. (1897), 77 Fed. Rep. 942, 93 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 33 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 carriei's 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. Reld, 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. 70 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. § 33] INTERSTATE TRANSPORTATION. 94 stituting a contiimoxis 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 weak 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. 95 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§§ 34, 35 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. State Telegraph and Telephone Companies Engaged in the Transmission of Interstate Messages. Section 1 of the Act to Regulate Commerce {as amended June 18, 1910) makes its provisions applicable to telegraph and telephone companies (whether wire or wireless) engaged in sending messages from one State, Territory, or District of the United States to any other State, Territory, or District of the United States, or to any foreign country. A construction of this provision based on the reasoning as outlined under "State Railroads Engaged in Interstate Commerce," Section SS, ante, leaves no doubt as to the jurisdiction of the Commission over State telegraph and telephone companies en- gaged in the transmission of interstate messages. §35. 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 75 Augusta & S. R. Co. v. Wrightsville & T. R. Co. (1896), 74 Fed. Rep. 523. 78 Re Express Companies (1887), 1 I. C. R. 677, 1 I. C. C. R. 349. §§ 36, 37] INTERSTATE TEANSPOETATION. 96 Commeree 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 Commeree 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- 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 'common 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.^» §36. Sleeping Car Companies. Prior to the Hepburn amendment of June 29, 1906, to the Act to Regulate 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" Section 35, ante, are equally applicable to sleeping- car companies. §37. Telegraph Companies. The Amendment of June 18, 1910, to the Act to Regulate 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. 78 United States v. Wells-Fargo Express Co. (1908), 161 Fed. Rep. 606. 97 TKANSPOETATION AND CAEEIEES SUBJECT TO ACT. [§§ 38-40 Commerce makes its provisions applicable to telegraph com- panies (whether wire or wireless) engaged in sending mes- sages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose and the Act. Prior to the above named date, telegraph companies were not subject to the jurisdiction of the Interstate Commerce Commission. §38. Telephone Companies. The Amendment of June 18, 1910, to the Act to Regulate Commerce, makes its provisions applicable to telephone com- panies (whether wire or wireless) engaged in sending mes- sages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of the Act. Prior to the above named date, telephone companies were not subject to the jurisdiction of the Interstate Commerce Commission. §39. Cable Companies. The Amendment of June 18, 1910, to the Act to Regulate Commerce, makes its provisions applicable to cable companies (whether wire or wireless) engaged in sending messages from one State, Territory, or District of the United States, to any other State, Territory, or District of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of the Act. Prior to the above named date, cable companies were iiot subject to the jurisdiction of the Interstate Commerce Com- mission. §40. Fast Freight Lines. Where a fast freight line operates over the roads of sev- eral connecting carriers, and the earnings and expenses of Regulation — 7. § 41] INTERSTATE TSANSPOETATION. 98 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.'° § 41. 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- state freight for shipment 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 East St. Louis and Alton, Illinois, 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 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- 's Vermont State Grange, etc., v. B. & L. Rd. Co. et al. (1887), 1 I. C. R. 500; 1 I. C. C. R. 158. 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 U. S. V. Illinois Terminal R. Co. (1909), 168 Fed. Rep. 546. 99 TKANSPOKTATION AND OAEEIEES SUBJECT TO ACT. [§§42,43 road connecting the points in different States between which moved the commodities mentioned in the indictment." § 42. Foreign Railroads. The provisions of the Act to Eegulate 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 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.** §43. Bridges and Bridge Companies. Section 1 of the Act to Eegulate Commerce provides that 83 Re Investigation of Acts and Doings of the Grand Trunk Railway System (18S9), 2 I, C. R. 496, 3 I. C. C. R. 87. 8* Re Alleged Disturbances in Passenger Rates by Canadian Pacific Railway Co. (1898), 8 I. C. R. 71. § 43] INTEESTATE TRANSPORTATION. 100 "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 rendered by them shall still be subject to the provisions of the Act to Regulate Commerce.'^ It often happens that bridges are constructed and provided by independent companies, which lease 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 Eegulate Commerce" regards the 85 See discussion tinder Enterprise Transportation Co. v. Penna. Rd. Co. et al. (1907), 12 I. C. C. R. 327. 86 Ibid. 87 Ibid. 101 TEANSPOHTATION AND CAEEIEES SUBJECT TO ACT. [§ 44 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 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 Regulate Commerce, see "Bridges and Bridge Companies,'' Section 69, post. § 44. Perries and Ferry 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 88 Ky. & Ind. Bridge Co. v. L. & N. Rd. Co. (1889), 37 Fed. Rep. 567, 2 L. R. A. 289. 89 See note 85, supra. 90 Enterprise Transportation Co. v. Penna. Rd. Co. et al. (1907), 12 I. C. C. R. 327. § 45] INTERSTATE TRANSPORTATION". 103 " '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 agency used in the transportation was furnished by some party other than the railroad itself.*'^ The city of New York 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 Companieis," Section 60, post. See, also, "Inland Water Carriers," Section Ul, post. §45. Pipe Lines. Section 1 of the Act to Regulate Commerce subjects the fol- lowing common carriers by pipe line'^ to its provisions. Any corporation or any person or persons engaged in the 91 Enterprise Transportation Co. v. Penna. Rd. Co. et al. (1907), 12 I. C. C. R. 327. 92 Rule 162, Con. Rul. Bui. No. 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 Diet.) 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. (Glflan v. South West Penn. Pipe Lines, 172 Pa. 580, 33 Atl. 578; see also Columbia Conduit Co. v. Com., 90 Pa. 307.) 103 TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 46 transportation of oil or other commodity, except water, and except natural and artificial gas: fr.\ T3-,r «;,,« K„o„ 1 Who shall be con- (a) By pipe lines. si^ered and Jield (b) Partly by pipe lines and partly by to be common car- railroad '"^'"^ within the rauroaa. meaning and pur- (c) Partly by pipe lines and partly by pose of the Act water. " J L^erce^.^"'^'' ^°"- As follows: Prom one State or Territory of the United States, or the District of Columbia, to any other State oi* 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 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 State? or an adjacent foreign country. °* § 46. 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 cars to railroad companies to be furnished indiscriminately for the use of shippers, receiving pay for such use from the railroad com- 9* See note 2, supra. § 47] INTERSTATE TEANSPOETATION. 104 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 company of any rebate or allowance to a shipper using its cars, 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 Eegulate 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. "°° § 47. 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, 95 1. C. C. V. Reichman, 145 Fed. Kep. 235. 90 See note 2, supra. 105 TEANSPOETATION AND CARRIERS SUBJECT TO ACT. [§ 47 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 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 terms 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 wiU be seen that it embraces carriers ' 'engaged in the trans- portation of passengers or property * * * partly by rail- s' Gulf 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. § 47] INTERSTATE TEANSPOETATION. 106 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- 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 Eegulate 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 regulative 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 ease 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: 107 , TRANSPORTATION AND CARRIERS SUBJECT TO ACT. [§ 48 When operated in connection with a railroad under a common control, management, or arrangement for a contin- uous carriage or shipment: (a) 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. (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. (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 silbject to the Act to Eegulate 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 Eegulate Commerce, see "Water Carriers," Section 57, post. § 48. Ocean Carriers. The Act to Eegulate 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- 99 In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. § 48] INTERSTATE TRANSPORTATION. , 108 ment, from one State or Territory of the United States, or the District of 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 sue"h 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." From a carefulreading 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 eomm'erce, 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 luoLykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. 109 TRANSPOKTATION AND CARRIERS SUBJECT TO ACT. [§ 48 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 Commission 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 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 Regulate 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 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 (1909), 15 I. C. C. R. 205. § 49] INTERSTATE TRANSPORTATION. 110 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. (c) 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 carriers are and are not subject to the jurisdiction of the Interstate Commerce Commission and to the provisions of the Act to Regulate Com- merce, see "Water Carriers," Section 51 , post. § 49. Intraterritorial Common Carriers. Section 1 of the Act to Regulate Commerce provides that it shall apply to "any common carrier or carriers of pas- 103 In the matter of Jurisdiction over Water Carriers, 15 I.'C. C. R. 205. Ill TKANSPOETATION AND CAEKIEES SUBJECT TO ACT. [§§ 50, 51 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. For full explanation as to the source of the power of Congress to control such common carriers see "Intraterritorial Transportation/' Section 29, ante. § 50. Street Railways witMn 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, ante, for explanation as to source of the power of Congress to control such common carriers. * § 51. Receivers and Trustees of Common Carriers. The text of the statute^"" recognizes two classes of common carriers, namely, natural persons and corporations ■j^"'' 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 thern.^"* By Section 9 of the Act suits upon claims for damages by a common carrier may be brought "in any District or Cir- 104 M. K. & T. Ry. Co. v. Bowles (1897), 1 Ind. Terr. 250; 30 S. W. 899. 105 District of Columbia Street Railways Act, approved May 23, 1903. See Appendix for copy of Act. 108 Act to Regulate Commerce. See Appendix for copy of Afit. 107 Eighth Annual Report of I. C. C. (1895). 108 Beach on Receivers. § 51] INTERSTATE TEANSPOKTATION. 112 euit Court of the United States of competent 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 9, also, penalizes the failure or refusal on the part of the receiver or trustee of any common carrier to comply v^ith the terms of any regu- lation adopted and promulgated or any order made by the Com- mission under Section 6 of the Act ; 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 vsrhich 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 20 w^hich 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, ei 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 109 Eighth Annual Report of I. C. C. (1895). 11" Arbitration Act. See Appendix for copy of Act. 113 TEANSPOKTATION AND'CAERIERS SUBJECT TO ACT. [§ 51 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 Eemoval of Causes Act, go far toward impairing those functions of a receiver 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- dictions in . many of his most important duties and responsi- bilities."^ The object of the Act to Regulate 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. 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). 112 Beach on Receivers. Regulation — 8. § 51] INTERSTATE THANSPOETATION. 114 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- 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 113 Board of Trade of Troy, Ala., v. Ala. Mid. Ry. Co. et al., 6 I. C. R. 1. 114 Loud V. S. C. R. Co. (1892), 4 I. C. R. 205; 5 I. C. C. R. 529; 2 I. C. R. 732. 116 Washer Grain Co. v. Mo. Pac. Ry. Co., 15 I. C. C. R. 147. 115 TEANSPOKTATION AND CAKEIEES SUBJECT TO ACT. [§ 51 to the rules and regulations wMcli 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 Fuller 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.i^^ Ordinarily the court will not allow its receiver to 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 subject 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. "^^^ 110 Eighth Annual Report of I. C. C. (1895). ii'Wiswall V. Sampson, 14 How. (U. S.) 52, 14 L. ed. 322; Taylor V. Carry!, 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. 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 he a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property accord- § 51] ' INTERSTATE TRANSPORTATION. 116 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, 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 leave 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 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 if 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." i20McNulta v. Lochridge, Adm., 141 U. S. 327-332; 35 L. ed. 796, 12 Sup. Ct. 11 (1891), affirming decision of Supi'eme Court of Illinois, 137 111. 270, 27 N. E. 452; T. & P. v. Cox, 145 U. S. 593; 36 L. ed. 829, 12 Sup. Ct. 905. 121 Ibid. 122 Eddy V. LaPayette, 49 Fed. Rep. 807, following Central Trust Co. V. St. L. A. & F. Ry. (1897), 40 Fed. Rep. 426; affirmed in 163 U. S. 456; 41 L. ed. 225, 16 Sup. Ct. Rep. 1082. 117 TEANSPOETATION AND CARRIERS SUBJECT TO ACT. [§ 51 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 the pro- visions 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 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. "^^' 128 Farmers' Loan & Trust Co. v. Nor. Pac. Ry. Co., 83 Fed. Rep. 249. 124 United States v. De Coursey, 82 Fed. Rep. 302. 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). 12" May V. McNeill, Receiver (1896), 6 I. C. R. 520. 128 Article 2, Rules of Practice before the Interstate Commerce Com- mission. §§ 52, 53] INTEESTATE TRANSPORTATION. 118 § 52. 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 be 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."^^^ § 53. Nature of Organizaition of the Carrier Immaterial to the Attaching of Jurisdiction of Commission. 1[ A. In General. The Act to Regulate Commerce applies to common carriers jand provides no distinction between those that are operated /by individual properties, partnerships, joint stock companies, or corporations.^^" 11 B. Federal Charter does not preclude 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.^"^ 12B I. C. C. V. W. N. Y. & P. R. Co. et al. (1897), 82 Fed Rep. 192. 130 American Bankers' Association v. American Express Company et al., 15 I. C. C. R. 15. 131 Raworth 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. 0. R. 452; 4 I. C. R. 183. CHAPTER V. TRANSPORTATION AND COMMON CARRIERS NOT SUBJECT TO THE JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. Section 54. Intrastate Transportation. 55. Foreign Commerce. 56. State Common Carriers. ( Inland 57. Water Carriers j q^^^^ 58. Transportation by Team, Transfer, Express and Omnibus Wagon, Stage-Coach, and other Private Carriers. 59. Bridges and Bridge Companies. 60. Ferries and Ferry Companies. 61. Switching Companies. 62. Foreign Railroads. ' 63. Rail and Water Carriers Operating In Alaska. § 54. Intrastate Transportation. If A. In Gbneeal. 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- 1 Federal Constitution, Article 1, Section 8, Clause 3. 2 T. & P. Ry. Co. V. I. C. C, 162 TJ. S. 197, 16 Sup. Ct. Rep. 666, 40 L. ed. 940 (1896). 119 § 54] INTERSTATE TEANSPOKTATION. 130 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.' # * * ^^j. gj^a^ they apply to the transmission of messages by telephone, telegraph or cable wholly within one State and not transmitted to or from a foreign country, from or to any State or Territory." This proviso excludes from national regulation the purely internal j 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.'' 3 Act to Regulate Commerce, Section 1, (as amended June 18, 1910.) i Mattingly 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 U. S. 403; 51 L, ed. 540, 27 Sup. Ct. Rep. 360, affirming 97 Texas, 274, 78 S. W. 495; so-called "Goldwaitli Case." 7 Gallogly & Firestine v. C. H. & D. Ry. Co. (1905), 11 I. C. C. R. 1; see also discussion under Hurlburt v. L. S. & M. S. Ry. Co. (1888), 2 1. C. C. R. 122; 2 I. C. R. 81; N. J. Fruit Ex. v. C. R. R. of N. J. (1888), 131 TEANSPOETATION AND CAEEIEES NOT SUBJECT TO ACT. [§ 54 It will be seen, therefore, that the Interstate Commerce (Commission has absolutely no jurisdiction over shipments |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 effect 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 Bast 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 reeonsignment at East St. Louis. The local rate of 9 cents per 100 pounds was assessed from Bast 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 Bast 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. ^ B. TeAFFIC TEANSPOETED between, POINTS IN THE SaME State which passes theough an Adjoining State in EEACHiNG Destination. For full explanation, see "Interstate Transportation," Section 28, Paragraph E, ante. T[ C. When a Teeeitoey has been admitted into the Union AS A State. When a Territory is admitted into the Union as a State, 2 I. C. C. R. 142; 2 I. C. R. 84; Capehart et al v. L. & N. R. Co. et al. (1890), 3 I. C. R. 278, 4 I. C. C. R. 265. 8 Acme Cement Plaster Co. v. C. & A. Rd. Co. et al. (1909), 17 I. C. C. R. 220, following Gulf, C. & S. F. Ry. Co. v. Texas, supra. § 54] INTEESTATB TEANSPOETATION'. 132 upon the same footing as all tlie other States, the territorial government and courts cease to exist, and matters of national cognizance remain within the power and jurisdiction of the nation, but other matters come under the power and juris- diction of the State.^ As stated under "Intraterritorial Transportation," Section 29, f,nte, 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 a 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. Separation 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 case over which it has no jurisdiction under the provisions of the Act to Eegulate Commerce. Complaint was dismissed for want of jurisdiction.^" The provisions of the Act to Eegulate Com- 3 Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 48; 39 L. ed. 892, 15 Sup. Ct. Rep. 751; see also McNulty v. Batty et al., 10 How. (U. 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. (XJ. S.) 514, 19 L. ed. 265; Norris v. Crocker, 13 How. (XJ. 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. 123 TKANSPOETATION AND CAEEIEKS NOT SUBJECT TO ACT. [§ 55 merce 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.^^ § 55. 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 ^8, ante. As to the control of the Commission over traffic destined 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. 11 Act to Regulate Commerce, Section 1, Appendix. 12 Chandler v. F. S. W. R., 13 I. C. C. R. 473. IS 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. §§ 56, 57] INTERSTATE TEANSPOETATION. 134 to the adjacent foreign countries, such as Canada and Mex- ico, see "Foreign Railroads" Section 42, ante. The above position does not conclude the Commission against an examination into the relation which exists between 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." § 56. State Common Carrieirs. As stated under "Intrastate Transportation," Section 5Jf, 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 Regulate 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. § 57. Water Carriers \ Jji^and ^^ I Ocean. In the proceeding styled "In the Matter of Jurisdiction Over Water Carriers,"^" the Commission held that carriers of 14 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. 15 Employers' Liability Cases (1908), 207 U. S. 463, 28 Sup. Ct. 141, 52 L. ed. 297. le In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. R. 205. 185 TRANSPORTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 57 interstate eommeree 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 : "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 traffic, 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 the 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; § 57] INTERSTATE TEANSPOETATION. 126 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, 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 case decided upon the point here involved is that the interstate transportation in question was subject to the Act to Eegulate Commerce by reason of the fact that, having entered into a common con- trol, management, or arrangement for the through carriage of " C. N. O. & T. P. V. I. C. C, 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700; See Mutual Transit Co. v. United States (1910), 178 Fed. Rep. 664. 137 TRANSPORTATION AND CAEKIEKS NOT SUBJECT TO ACT. [§ 57 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 Circle, that company could undertake such transportation free from the control of any supervision except that of the State of Georgia. ^ ^ tP w w "All we wish to he understood to hold is, that when goods shipped under a through hill 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 hardly 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 § 57] INTERSTATE TEANSPOETATION". 128 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 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 unconsti- 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 Kochester, N. T., to the City of New York by rail and thence by water carrier to Norfolk, Va. Having established one satisfactory through- route between Eochester and Norfolk, the Commission is without authority to establish another and therefore could 129 TRANSPORTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 57 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. "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 G. N. 0. & T. P. Ry. v. I. G. 0., 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-pprt 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 Eegulation — 9. § 57] INTERSTATE THANSPOKTATION. 130 thought necessary to effectually 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 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 ease there is a violation of law for which a penalty is provided. "If 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- is Texas & Pac. Ry. Co. v. I. C. C, 162 U. S. 197-218, 40 L. ed. 940, 16 Sup. Ct. 666. 131 THANSPOETATION AND CAEEIBES NOT SUBJECT TO ACT. [§ 57 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." Coekrell, Commissioner, in concurring in the above ma- jority opinion of the Commission stated: "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- i» Ex Parte Koehler, Receiver, 30 Fed. Rep. 867. § 57] INTERSTATE TEANSPOETATION. 132 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 railroads 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. "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 PacTcing Go. 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 traflc 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 20 Armour Packing Co. v. U. S. (1908), 209 U. S. 56, 52 L. ed. 681; 28 Sup. Ct. 428. 133 TEANSPOETATION AND CAEEIEES NOT SUBJECT TO ACT. [§ 57 or participate in tlie 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 unrestrieted '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 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 nee-' essary for the control and regulation of such commerce, anc placed the enforcement of such laws under the Treasurji Department up to February 14, 1903, when the control anc 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 onlj' 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 Interstate Commerce Law in 1887, mention was made of these water carriers, and also in the passage of the Hepburn Act they were in the miuds 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 all passen- gers and shippers to use their own vehicles for such trans- § 58] INTERSTATE TEANSPOETATION. 134 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 transporting traffic between Havana, Cuba, and Galveston, Texas, is not subject to the Act to Eegulate 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 U7, and "Ocean Carriers," Section ^8, ante. §58. Transportation by Teaia, Transfer, Express, and Omni- bus Wagon, Stage-Coach, and other Private Carriers. 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 ear 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. 21 Lykes S. S. Line v. Com'l Union et al. (1908), 13 I. C. C. R. 310. 22 Act, Section 1, Appendix. 28 Re Exchange Free Transportation (1907), 12 I. C. C. R. 40. 135 TEANSPOKTATION AND CARRIERS NOT SUBJECT TO ACT. [§ 58 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 as either private or common carriers : 11 A. Team or Wagon. The provisions of the Act to Regulate Commerce do not apply to transportation by team or wagon.^* 1[ 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.^° II C. Express Wagons. From the cases 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. IfD. Stage-Coach, etc. A stage-coach company is not subject to the provisions of the Act to Regulate Commerce.^* Neither are hacks, 24 Gary et al. v. Eureka Springs Ry. Co. et al. (1897), 7 I. C. C. R. 286. 25 Re Exchange Free Transportation (1907), 12 I. C. C. R. 40. 28 Wylie V. Northern Pacific Ry. Co. et al. (1905), 11 I. C. C. R. 145., § 59] INTERSTATE TEANSPOETATION. 136 baggage wagons, cabs, drays, carts, automobiles, etc., subject to the jurisdiction of the Commission. § 59. 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- 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.^o See "Bridges and Bridge Companies" Section 43, 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 of a Bridge. Where a railway company, by contract with a bridge com- 27 Ky. & Ind. Bridge Co. v. L. & N. R. Co., 37 Fed. Rep. 567. 28 Cov. & 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. 137 TRANSPORTATION AND CAEEIBRS NOT SUBJECT TO ACT. [§ 60 party, 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- 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.*^ § 60. 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 traffic transported under a common control, management or arrangement with a rail carrier, and in respect of traffic not so transported they 31 Ky. &,Inw;ful discrimination or disadvantage, or of unreasonably high rates, to procure an order directing changes in riassification.'^ There is no presumption in favor of one classification as against an- other.'"^ § 73. Change of Classification should only be made upon Proof of Unjust Discrimination. 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. 7* Rhode Island Egg & Butter Co. et al. v. L. S. & M. S. Ry. Co. et al., 6 I. C. R. 176. 76 Schumacher Milling Co. v. C. R. I. & P. Ry. Co. et al., 6 I. C. C. R. 61, 4 I. C. R. 373. 76a Ibid. 77 Ibid. 1 165 CLASSIFICATION OF FREIGHT. [§§ 74^77 § 74. 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 j second, by changing the classification.'* This latter course is ofttimes resorted to. §75. Discrimination in Classification. See Section S72, post. § 76. 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 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.''® § 77. Classification 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, 78 Fourteenth Annual Report of I. C. C. (1900). 79Hulburt V. L. S. & M. S. R. Co. (1888), 2 I. C. C. R. 122, 2 I. C. R. 81. §§ 78, 79] INTERSTATE TRANSPORTATION. 166 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.*" § 78. 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 promulgated from New York City, the Western classification from Chicago, 111., 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. § 79. Uniform Classification. T[ A. In General. "In the Eleventh Annual Eeport of the Interstate Commerce Commission to Congress the matter of a uniform classifica- tion was treated of 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 80 Rule 65, Tariff Circular 17-A. 167 CLASSIFICATION OF FREIGHT. [§ 79 taken by the carriers -whieli 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.'^ "In 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, 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 of them.'*^ "The foregoing briefiy 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."'^ 81 Twenty-First Annual Report of I. C. C. (1907). 82 Twenty-First Annual Report of I. C. C. (1907). 83 Ibid. § 79] INTERSTATE TEANSPOKTATION. 168 "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."** "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 84 Eighth Annual Report of I. C. C. (1894). 85 Eighth Annual Report of I. C. C. (1894). 169 CLASSIFICATION OP FREIGHT. [§ 79 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. "*° On the contrary, however, while the nearest approximation to uniformity of classification is desirable, all agree that great caution should govern the attempts to bring it about. The Commission has said,^^ "to force it at once was undesirable," and "while one dealer might be greatly benefited another might be ruined," and that "the final adjustment of a uni- form classification must necessarily be the arrangement of a number of compromises." And it said in Pyle. v. East Ten- nessee, V. & G. B. Go.^'"^ that occasional inequalities of rates, and slight and occasional differences in the rates charged would not prove that the whole system is wrong and that "when comparison is attempted to be made of classifications and rates, different conditions of transportation can not be ignored." U B. Commission will recognize Efforts of Carriers to ARRIVE at Uniformity op Classification. When all the interstate carriers of the country, working 86 Twenty-First Annual Report of I. C. C. (1907). ST Schumacher Milling Co. v. C. R. I. & P. R. Co. (1893), 4 I. C. R. 373; 6 I. C. C. R. 61. 87a Pyle V. East T. V. & G. R. Co. 1 I. C. R. 770, 1 I. C. C. R. 473. §§ 80-83] INTERSTATE TEANSPOETATION. 170 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 conflicting 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 Regulate 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.*^ §80. Publication, posting and filing Classifications. See Chapter 30, post. § 81. Classification enjoined by the Act to Regulate Commerce. Section 1 of the Act to Regulate Commerce (as amended June 18, 1910) makes it the duty of -carriers subject to its provisions to establish, observe, and enforce just and reason- able classifications of property for transportation, with ref- erence to which rates, tariffs, regulations, or practices, are or may be made or prescribed, and just and reasonable regu- lations and practices affecting classifications. § 82. Jurisdiction of the Interstate Commerce Commission Over Classification. 1[A. Power to order Changes in Classieication of Commodities. The Act to Regulate Commerce {as amended June 18, 1910) 88 McMillan & Co. v. Western Classification Committee, 3 I. C. R. 282. 171 CLASSIFICATION OF FREIGHT. [§ 83 authorizes an^ empowers the Commission, whenever, after full hearing on a complaint made as provided in Section 13 of the Act, or after full hearing under an order for investiga- tion and hearing made by the Commission on its own initia- tive (either in extension of any pending complaint or without any complaint whatever), it shall be of the opinion that any individual or joint 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 property as defined in the first section of the Act, or that any individual or joint classifications, regulations or practices what- soever of such carrier or carriers subject to the provisions of the Act are unjust or unreasonable or unjustly discriminatory, or unduly preferential or prejudicial or otherwise in viola- tion of any of the provisions of the Act, to determine and prescribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter ob- served in such case as the maximum to be charged, and what individual or joint classification, regulation or practice is just, fair, and reasonable, to be thereafter followed; and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafter publish, de- mand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed.'^ 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 91 Act, Section 15, (as amended June 18, 1910). 92Myer 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. § 83] INTERSTATE TRANSPORTATION. lY^ classification which, upon the facts, it has found to be law- ful, is not prescribing a rate for the future. ^^ Tl B. Order of Commission shall continue in Force not ex- ceeding Two Years unless suspended or 'set aside by Commission or Court. ' The statute provides that all orders of the Commission relating to classification of commodities 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 Com- mission, 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."^^ U C. Commission may upon its Own Initiative enter upon Hearing concerning Property of new Classification. The Act to Regulate Commerce {as amended June 18, 1910), provides that whenever there shall be filed with the Commis- sion any schedule statin^g a new individual or joint rate, or charge, or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate or charge, the Commission shall have, and it is given, author- ity, either upon complaint or upon its own initiative without complaint, at once, aaid if it so orders, without answer or other formal pleading by the interested carrier or carriers but upon reasonable notice, to enter upon a hearing concern- ing the propriety of such rate, charge, classification, regula- tion or practice."* If D. Commission may not establish Classification in con- nection with Street Electric Passenger Railways. The Act to Regulate Commerce {as amended June 18, 1910), provides that the Commission shall not establish any classifi- cation between street electric passenger railways not engaged 03 Ibid. 03a Act, Section 15, (as amended June 18, 1910). 9* Ibid. 173 CLASSIPICATIOSr OF FREIGHT. [§ 83 in the general business of transporting freight in addition to their passenger and express business and railroads of a dif- ferent character."" 1[ B. Commission no authoeitt to establish Classification WITH Independent Water Caeeiees. The Act to Regulate Commerce {as amended June 18, 1910), provides that the Commission shall not have the right to establish any classification when the transportation is wholly by water, and that any transportation by water affected by that Act shall be subject to the laws and regulations applica- ble to transportation by water.^^^ T[ P. PowEE OF Commission to eesteain Enforcement of New Individual oe Joint Classification pending Investi- gation. Section 15 of the Act to Regulate Commerce {as amended June 18, 1910), reads as follows: "Whenever there shall be filed with the Commission * * * any new individual or joint classification, * * * the Commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders, without answer or other formal pleading by the in- terested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the propriety of such * * * classification, * * *; and pending such hearing and the decision thereon the Commission upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing pf. its reasons for such sus- pension may suspend the operation of such schedule and defer the use of such * * * classification, * * *^ \)fj^ not for a longer period than one hundred and twenty days beyond the time when such * * * classification. * * * would otherwise go into effect ; and after full hearing whether completed before or after the * * *^ classification, * * * 86 Ibid. 95a Ibid. §§ 83-86] INTERSTATE TKANSPOETATION". 174 goes into effect the CommiBsion may make such order in reference to such * * *^ classification, * * * as would be proper in a proceeding initiated after the * * *, classification, * * » jja,'d become effective: Provided, That if any such hearing cannot be concluded within the period of suspension, as above stated, the Interstate Com- merce Commission may, in its discretion, extend the time of suspension for a further period of not exceeding six months." § 83. Penalty for False Classification by Carrier. See Section 760, post. § 84. Penalty for False Classification by Shipper. See Section 761, post. §85. Copies of Classifications to be preserved as Public Records in Custody of Secretary of Commission. The statute provides that copies of classifications filed with the Commission in accordance with the provisions of the Act shall be preserved as public records in the custody of the Secretary of the Commission. '° § 86. Certified Copies of Classifications as Prima Facie Evidence. The Act provides that the copies of classifications filed with the Commission and in custody of the Secretary of the Commission, 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 and extracts from any of such classifications, made public records as aforesaid, certified by the Secretary under the seal of the Commission shall be received in evidence with like effect as the originals. ''' 16 Act to Regulate Commerce, Section 16 (as amended June 18, 1910). 97 Ibid. CHAPTER VII. FREIGHT RATES AND CHARGES. Section 87. Different Kinds of Rates defined and Their Usage. 88. Duty of Carriers to initiate Rates. 89. Factors and Elements to be considered in Rate-Making. 90. Use of Classification in Rate-Making and Elements to be consid- ered in fixing Same. 91. Methods of advancing Rates. 92. Rates must be Just and Reasonable. 93. Reasonableness of Rates. 94. Regulations and Practices affecting Rates. 95. Comparison of Rates. 96. Rates must apply according to Movement. 97. Joint and Through Rates. 98. Rates are not nullified by Failure of Carriers to Agree upon Divi- sion Thereof. 99. Discrimination in Rates for Transportation of Freight. 100. Free and Reduced-Rate Transportation of Property. 101. Publication, posting and filing of Freight Rates and Charges. 102. Published Rates not to be deviated from. 103. Offering, granting, giving, soliciting, accepting or receiving any Rebate from Published Rate declared to be a Misdemeanor and Penalty Therefor. 104. Maintenance of Rate reduced after Complaint filed with the Inter- state Commerce Commission. 105. Effect of Private Agreement between Carrier and Shipper concern- ing Charges for Transportation. 106. Performance of Transportation Service without Rates on File with the Interstate Commerce Commission. 107. Territorial Divisions of the United States for Rate-Making Pur- poses. 108. Construction of Rates from Percentage-Basis-Territory Points to Eastern Cities. 109. Jurisdiction of Interstate Commerce Commission Over Freight Rates and Charges. 110. Duty of Carriers to quote Rates to Shippers. 175 § 87] INTERSTATE TEANSPOETATION. 176 §87. Different Kinds of Rates defined and Their Usage. 1|A. Local Eate. Eates 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. ^ U 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. ^ If 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. * Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co. et al. (1908), 13 I. C. C. R. 154. 6 Ibid. 177 FREIGHT RATES AND CHARGES. [§ 87 ranging themselves into the through route. "Where a through route has been formed the rate charged is a through rate." TfD. Peopoetional 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 j&rst 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.* If E. Aebiteaeies. The term ariitrary 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.^" U P. Dipeeeentials. 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 8 In the Matter of Through Routes and Through Rates (1907), 12 I. C. C. R. 164. 7 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. Eegulation— 12. § 87] INTERSTATE TEANSPOETATION. 178 of destination, that differentials either above or below the rates from 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.^^ H G. Class Eates. 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.^^ T[ H. Commodity Bates. Commodity rates are usually, if not invariably lower than the class rates, being special rates presumably established on account of peculiar circumstances and conditions." 11 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. 14 Indianapolis Prt. Bureau v. C. C. C. & St. L. Ry. Co. et al. (1909), 15 I. C. C. R. 367. 179 FREIGHT RATES AND CHARGES. [§ 87 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 eases 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.^' It should be noted, however, that while a commodity rate may be a different rate from a class rate, it does not neces- sarily follow that it must be a lower rate, nor is it obligatory upon the carrier to thereby establish a lower rate.^' 15 New York Board of Trade & Transp. v. Pa. Rd. Co. (1891), 3 I. C. R. 417. 18 Rule 84, Con. Rul Bui. No. 4 (June 9, 1908). 17 Acme Cement Plaster Co. v. L. S. & M. S. Ry. Co. et al. (1909), 17 I. C. C. R. 30. 18 Rule 7, Tariff Circular 17-A. 18 Wheeling Corrugating Co. v. B. & O. Rd. Co. et al. (1910), 18 I. C. C. R. 125. § 87] INTERSTATE TEANSPOETATION. 180 Til. Eates foe 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.^'^ 11 J. Basing-point System of 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 19a See note 18, supra. 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. 181 FREIGHT RATES AND CHARGES. [§§885 89 to sueh points; and when not determined upon arbitrarily or with improper motives are not in violation of the Act to Regulate Commerce.^^ § 88. 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.^' § 89. 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 Bates," Section 93, post. TIA. Value of 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 hundred 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 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. 22 Foster Lumher Co. v. A. T. & S. 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. 24Thurber et al. v. N. "X. C. & H. R. Rd. Co. et al. (1890), 3 I. C. C. R. 473; 2 I. C. R. 742. § 89] INTERSTATE TEANSPOETATION. 183 what the traffic mil hear 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 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.^^ Eates 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 earrier.^^ See "Value of Service v. Cost of Service Principle in Fixing Classification," Section 67, Paragraph B., ante, for full consideration. TI B. Cost of 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.^' 25 Imperial Coal Co. v. P. & L. E. Rd. Co. et al. (1889), 2 I. C. C. R. 618; 2 I. C. R. 436. 23 Ibid. 27 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. 28Newland 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. 183 fREIGHT RATES AND CHARGES. [§ 89 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.'^ 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 traffic.^^ 1[ C. Value op Service v. Cost oe Service Principle in Fixing Eates.. See Section 67, Paragraph B, ante. 1[D. Value op the Commodity 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 30 Glade Coal Co. v. B. & O. Rd. Co. (1904), 10 I. 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. F. & O. H. v. U. S. Ex. Co., 12 I. C. C. R. 121. 311. C. C. V. C. G. W. Ry. Co. (1905), 141 Fed. Rep. 1003, affirmed 209 U. S. 108, 52 L. ed. 705. 28 Sup. Ct. 493. 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. 83 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. § 89] INTERSTATE TEANSPOETATION. 184 rates charged for transporting two difEerent 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 equipnient of carriers have rendered the item of risk in many cases of little conse- quence. The value of the article is important, principally, becaTMe 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- 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.'^ TIE. Risk as an 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 3« Chicago Live Stock Exchange v. C. G. W. Ry. Co. et al. (1905), 10 I. C. C. R. 428; see also Parrar 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. 3T 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. 185 FREIGHT EATES AND CHARGES. [§ 89 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 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.*^ U p. Volume oe 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.** If G. Weight and Bulk of Article as Elements. The weight and bulk of the goods transported and the *o Cattle Raisers' Association v. M. K. & T. Ry. Co. et al. (1905), 11 1. C. C. R. 296; New Orleans Live Stock Exchange v. T. &. P. Rd Co., (1904), 10 I. C. C. R. 327. -Law Right to Contract. The Interstate Commerce Act is not to be so construed as to abridge or take away the common-law right of the carrier to make contracts and adopt proper business methods, further than its terms and recognized purposes require.^' § 253. Status of Contracts for Special Rates entered into before Passage of the Act. The Interstate Commerce Act, when it took effect, abro- gated all existing contracts with common carriers for special interstate rates,^* and all such contracts became illegal.^^ § 254. State Statutes relating to Contracts between Carriers and Shippers. A State statute making it unlawful for a railroad com- 21 General Electric Co. v. N. Y. C. & H. R. R. Co. et al. (1908), 14 I. C. C. R. 237. 22 Traders' & Travelers' Union v. P. & R. Ry. Co. et al. (1887), 1 I. C. C. R. 371; 1 I. 0. C. R. 122; Commercial Club of Omaha v. C. & N. W. Ry. Co. et al. (1897), 7 I. C. C. R. 386. 33 1. C. C. V. L. & N. Rd. Co. (1896), 73 Fed. Rep. 409. 24 Fitzgerald v. Fitzgerald & M. Const. Co. (1894), 41 Nebraska 374; 59 N. W. 838. 25Bullard v. Northern Pacific Rd. Co. (1890), 10 Montana 168; 25 Pac. 120, 11 L. R. A. 246n. 419 CONTKACTS BETWEEN CARRIERS AND SHIPPERS. [§ 854 pany in that State to charge and collect a greater sum for transporting freight than is specified in the bill of lading, is, when applied to freight transported into the State from a place without it, in conflict with the provisions of Section 6 of the Interstate Commerce Act stating that it shall be unlawful for such carrier to charge and collect a greater or less compensation for the transportation of property than is specified in the published schedule of rates provided for by the Act, and in force at the time; and, being thus in conflict, it is not applicable to interstate shipments.^° When a State statute and a Federal statute operate upon the same subject matter, and prescribe different rules con- cerning it, and the Federal statute is one within the com- petency of Congress to enact, the State statute must give way.^^ ] 26 Gulf, Colorado & Santa Pe Ry. Co. v. Hefley (1895), 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802, followed in Spratlin v. St. L. S. W. Ry. Co. (1905), 76 Arkansas 82; 88 S. W. 836; St. L. S. W. Ry. Co. v. Carden (1896), 34 S. W. 145; see also A. K. & N. Ry. Co. v. Home (1900), 106 Tenn. 73; 59 S. W. 134. 27 Ibid. CHAPTER XVII. TERMINAL FACILITIES, REGULATIONS AND CHARGES. Section 255. Duty of Carrier to furnisli Adequate Terminal Facilities. 256. Duty of Carrier to establish Reasonable Regulations and Practices governing Terminal Facilities. 257. Terminal Facilities may vary with Size or Importance of City. 258. Rules in insure Safety of Terminal. 259. Shippers should adjust Their Business to meet Necessary Regula- tions governing Receipt and Delivery of Freight. 260. Rules governing the loading and unloading of Freight for Shippers. 261. Carrier not required to give the Use of Its Tracks to Traffic of Competing Road. 262. Distribution of Consignments of Freight held in Storage by Car- rier. 263. Carriers are not required to make Free Delivery to Points Loca- ted on Line of Another Carrier. 264. Collection by Carrier oi Less-Than-Carload Shipments at Point of Origin. 265. Switches and Switch Connections. 266. Absorption of Switching Charges. 267. Transfer charges. 26S. Storage charges. 269. Demurrage or "Car-Service." 270. Terminal Charges must be Just and Reasonable. 271. Publication of Regulations affecting Terminal Service and Charges Therefor. 272. Carrier not required to telegraph Consignor When Shipment Is Refused by Consignee or Latter Cannot be Found. 273. Discrimination in Terminal Facilities and Charges between Com- modities. 274. Live Stock- Facilities. 275. Jurisdiction of Interstate Commerce Commission over Terminal Facilities and Terminal Charges. 276. States no Authority over Terminal Services and Charges Affecting Interstate Transportation. 430 421 TERMINAL FACILITIES AND REGULATIONS. [§§ 255-257 §255. Duty of Carrier to fxtmish Adequate Terminal Facilities. The first section of the Act to Regulate Commerce after defining the term "transportation" to include "all instru- mentalities 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 * * * and handling of property transported," make it the duty of every carrier subject to the provisions of the Act "to provide and furnish such transportation upon reasonable request therefor and to establish just and reason- able rates thereto." This section plainly makes it obliga- tory upon carriers to establish proper terminal facilities for the receipt and delivery of property transported. § 256. Duty of Carrier to establish Reasonable Regulations and Practices governing Terminal Facilities. Section 1 of the Act to Regulate Commerce {as amended June 18, 1910) makes it the duty of all common carriers sub- ject to its provisions to establish, observe and enforce just and reasonable regulations and practices affecting the receiv- ing, handling, transporting, storing and delivery of property subject to the provisions of the Act which may be necessary or proper to secure the safe and prompt receipt, handling, transportation, and delivery of such property upon just and reasonable terms, and prohibits every unjust and unreason- able regulation and practice with reference to commerce be- tween the states and with foreign countries. § 257. Terminal Facilities may vary with Size or Impor- tance of City. The Interstate Commerce Act was not intended to require that precisely the same accommodation should be made for passenger and freight traffic at every station on a line of railroad, irrespective of the size or importance. A large city may properly be given facilities, although they make its §§ 258-260] INTERSTATE THANSPOETATION. . 422 traffic cheaper and more convenient than that of smaller places.^ § 258. Rules to insure Safety of Terminal. There is no question but what a carrier has the right to make and enforce suitable regulations to insure the safety of its terminals and the freight passing through the same for shipment or delivery.^ § 259. Shippers should adjust Their Business to meet Neces- sary Regulations governing Receipt and Delivery of Freight. Shippers generally at competing cities must and do adjust the conduct of their business to the differing rules and regu- lations which carriers find necessary to apply at different points in the reception and delivery of freight, and unless the carrier in providing transportation or depot facilities, including the hour of closing, is clearly acting in disregard of the rights of shippers, the resulting inconvenience or em- barrassment of shippers and even some additional expense in the delivery of freight to the carrier are not matters which warrant a finding that the prejudice is undue, or ■ the ad- vantage unreasonable.^ § 260. Rules governing the loading and unloading of Freight for Shippers. While it is true that the usual practice is for consignees to do their own unloading at destination, clearly there is nothing in the law or in public policy that forbids a carrier to unload freight for them if it does so for all shippers alike. Generally speaking a carrier may build up its traffic by offering its shippers any facilities of that nature. This is understood to have been so held by both the courts and iMlchie V. N. Y. N. H. & H. R. R. Co. (1907), 151 Fed. Rep. 694, citing Detroit G. H. & M. Ry. Co. v. I. C. C. (1906), 74 Fed. Rep. 803; 21 C. C. A. 103; 46 U. S. App. 308. 2 Preston & Davis v. D. L. & W. R. R. Co. (1907), 12 I. C. C. R. 115. ,3 Cincinnati Chamber of Commerce, etc., v. B. & O. S. W. R. Co. et al. (1904), 10 I. C. C. R. 378. 423 TERMINAL FACILITIES AND EEGULATIONS. [§ 261 the Commission.* Neither can it be stated as a matter of law that it is the absolute duty of carriers to unload car- loads of package freight, nor that this duty rests upon the shipper, as there is no hard and fast rule of law upon the subject. It is rather a question with respect to each com- modity of what, under the circumstances, is just and reason- able, and perhaps also what has been the practice.^ There is no good reason why ordinary package freight, which is loaded and unloaded upon the team track or at the private siding, should not be handled into and out of the car by the shipper in the same manner that bulk freight is.^* It is not unlawful for carriers to assess a reasonable charge for loading or unloading, or for assisting in loading or un- loading, carload freight, provided the service to be rendered and the charge to be assessed are clearly stated in the tariff. The carrier must have the right to unload carload shipments and release its equipment when the consignee has neglected to unload within the free time provided in carrier's tariff, and the carrier may not, because of consignee's neglect be required to perform that service without reasonable compensation there- for. The rule and practice in this regard must, however, be nondiscriminatory.^'' § 261. Carrier not required to give the Use of Its Tracks to Traffic of Competing Road. The third section of the Act to Eegulate Commerce pro- vides 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 engaged in like business. * In the Matter of Allowances to Elevators by the Union Pacific Rd. Co. (1907), 12 I. C. C. R. 86. 5 Wholesale Fruit & Produce Assn. v. A. T. & S. F. Ry. Co. et al. (1908), 14 I. C. C. R. 410. 5a Wholesale Fruit & Produce Assn. v. A. T. & S. F. Ry. Co. et al. (1910), 17 I. C. C. R. 596; see Utica Traffic Bureau v. N. Y. C. & H. R. R. R. Co. (1910), 18 I. C. C. R. 271. 5b Schultz-Hansen Co. v. Southern Pacific Co. et al. (1910), 18 I. C. C. R. 234. § 262] INTERSTATE TRANSPORTATION. 434 §262. Distribution of Consignments of Freight held in Storage by Carrier. The functions of a carrier are to receive, transport and deliver. As a rule, it can only be forced into the position of warehouseman through lack of diligence on the part of the consignee in the removal of his property. With no gen- eral duty to act as a warehouseman for indefinite periods in connection with its primary obligations as a common car- rier, it cannot assume to provide shippers with valuable warehouse facilities which are not essential to its business as a carrier without furnishing them for all shippers at all times and upon the same terms and notifying the public thereof in the manner provided by law. Distributing consignments in part lots to different sub- sequently designated persons and reshipping upon shipper's order parts of consignments held in store and kindred con- cessions come within the same requirements of impartiality and publication.^ The storage of freight and part lot distribution are of considerable importance and 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 throughout the country. To the extent of its value, each privilege lessens the aggregate compensation paid by shippers to carriers for transportation and terminal services.'^ The charges made for such services, 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. The privileges in question do change, affect or determine the aggregate charge for the shipper and to the extent of the cost for the carrier as well.* They are also terminal facilities which are covered by the regular trans- portation charge or for which a special charge is imposed. 8 American Warehousemen's Ass'n v. 111. Cent. Rd. Co. et al. (1898), 7 I. C. C. R. 556. 7 Ibid. 8 Ibid. 425 TERMINAL FACILITIKS AND EEGDLATIONS. [§ 363 Any injustice resulting from allowance and non-allowance by the carriers of the privileges and facilities involved seems clearly forbidden by Section 2 of the statute, as inter- preted by the United States Supreme Court in Wight v. United States,^ and the general provision against undue preference in the third section also applies. Section 1 of the Act provides that "all charges for any services rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection there- with, for the receiving, delivering, storage or handling of such property shall be reasonable and just." From this it appears that storage is, within the contemplation of the Act, an incident of transportation and may be dealt with as such. By Section 6 it is provided that "the schedules printed as aforesaid shall also state separately the terminal charges and any rules or regulations which in any wise affect or determine any part of the aggregate of such aforesaid rates and fares and charges." From what has been already said it is ap- parent that the granting of storage as a part of the service covered by a particular rate may be a matter of great con- sequence to the shipper. The object of the sixth section is to secure to the public an opportunity of knowing the rates charged by carriers for the services rendered, but it is of no possible avail to state the amount of the rate unless the thing or things covered by that rate are also stated or known. Whenever any service is rendered or any privilege allowed beyond the ordinary receiving, transporting and delivery of the property, that should appear upon the schedule.^" § 263. Carriers are not required to make Free Delivery to Points Located on Line of Another Carrier. The Act to Regulate Commerce in specific terms provides that a common carrier shall not be required to give the use of its tracks or terminal facilities to another carrier engaged in like business. ^^ 9 Wight V. United States, 167 U. S. 512; 42 L. ed. 258, 17 Sup. Ct. 822. 10 See note 6. supra. 11 Act to Regulate Commerce. Section 3. §§ 264-366] INTERSTATE TUANSPOETATION. 436 In the absence of tariff provisions to the contrary, the trans- portation rate shown in a carrier's tariff on a certain com- modity to a given point is understood to include delivery only to industries or unloading points located upon its own rails and if the consignee or owner of the shipment desires delivery to points located on the line of another carrier he must pay the lawful charge for such service. ^^ § 264. Collection by Carrier of Less-Than-Carload Shipments at Point of Origin. The Commission condemned as unlawful a practice under which a carrier provides an empty car at factory sidings, in which the shipper may load less-than-carload shipments, which the carrier then moves to its regular freight station where the shipments are assorted and placed in other cars to be forwarded to their respective destinations. Such practice is lawful only under definite and clear tariff authority, non- discriminatory in terms and in its application.^' § 265. Switches and Switch Connections. See Chapter 2^, post. §266. Absorption of Switching Charges. T[A. EULES MUST BE STATED IN PUBLISHED TARIFF. No switching or other terminal charges should be absorbed except under a plain and specific tariff provision therefor.^* ^ B. Where Two Smaller Cars are Furnished instead of Car Ordered by Shipper. Where a carrier absorbs switching charges on carload ship- ments and for its own convenience furnishes a shipper two smaller cars instead of one ear of the size ordered, in aecord- 12 Laning-Harris Coal & Grain Co. v. A. T. & S. F. Ry. Co. (1907), 12 I. C. C. R. 479; see also Leonard v. C. M. & St. P. Ry. Co. (1907). 12 I. C. C. R. 492. > 13 Rule 97, Con. Rul. Bui. No. 4 (October 12, 1908). 14 Leonard et al. v. C. M. & St. P. Ry. Co. (1907), 12 I. C. C. R. 492. 427 TERMINAL FACILITIES AND KEG0LATIONS. [§ 266 anee with its rules in that regard, making the same rate as though one ear had been furnished, switching charges should be absorbed on both of the cars furnished.^^ 1[ C. FOT PROPER FOR CONSIGNEE TO PAT SWITCHING CHARGE AND Carrier to Deduct such charge from the Eate. The tariff of a carrier provided for the absorption of switch- ing charges. Upon inquiry it was agreed that the Commis- sion could not sanction a practice under which switching charges are paid by the consignee the carrier deducting the amount of the switching charge from the published rates and collecting the balance from the consignee. In all cases the carrier must collect the full tariff rates. Where its tariffs provide for absorption of switching charges the carrier must pay the switching company for the services and not leave that to be done by the shipper.^' U D. Discontinuance and Subsequent Eesumption of Prac- tice OF Absorbing Switching Charge as Evidence of Unreasonableness op such Charge. In the case of Leonard v. C, M. & St. P. By. Go.^'' the de- fendant at one time absorbed the switching charge on coal at Kansas City, later discontinued the practice, and subse- quently resumed it. Complainants alleged that inasmuch as defendant indulged in the practice and after discontinuance resumed it that it had committed itself to the unreasonable- ness of requiring shipper to at any time pay said switching charge, and therefore reparation was asked for switching charges paid during the period when defendant required that such charges should be paid by shipper. The Commission in dismissing the complaint, Jleld, That to support the con- tention of the complainant would be to say that transporta- tion charges must in every instance remain at a fixed figure or be reduced by the carrier at the peril of being called upon 15 Milwaukee Palls Chair Co. v. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 217. 16 Rule 64, Con. Rul. Bui. No. 4 (April 14, 1908). 17 See note 14, supra. §§367,268] INTERSTATE TEANSPORTATION. 428 to respond in damages for all charges that had before that time been collected under the rate so reduced. §267. Transfer Charges. The Act to Regulate Commerce does not bar a carrier from providing for costs of transfer in making delivery to a second 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 rates and charges to be exacted therefor. "When it has done that, it can lawfully, and it must, exact from the shipper the rates and charges so fixed. Such charges and the means employed must, however, be reasonable under the circumstances and conditions that surround the transfer. Any other rule would permit carriers to dictate junction point transfers at will, both as to kind of service and amount of charges therefor, and thus would open the way to unknown rates and charges and create opportunities to indulge in unjust discriminations and undue preferences. The shipper is entitled to notice of a transfer charge other than one coming to him through the collection of the chatge 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.^^ A carrier cannot excuse the collection of an unpublished and unknown drayage and transfer charge by proof that it had a rule which forbade the sending of its own cars beyond its own line during a period of car shortage and congestion of business.^' This defense would be especially unavailable where no notice of the rule, either actually or by reference in a published tariff, had been brought to the shipper.^" §268. Storage Charges. 1[ A. Storage Defined. Storage is a charge assessed by the carrier against the ship- is Schwager & Nettleton v. Gr. Nor. Ry. Co. (1907), 12 I. C. C. R. 521. 19 Ibid. 20 Ibid. 429 TERMINAL FACILITIES AND REGULATIONS. [§§ 269, 270 per for the detention of freight in the carrier's depot or station beyond the free time allowed the shipper for loading or unloading. It is a demurrage charge applied to less than carload traffic. H B. Purpose of Assessing Storage Charges. A railroad freight depot and a public storage warehouse are buildings whose businesses are wholly dissimilar. The for- mer is planned and built to accommodate the current business of the railroad when expeditiously handled, and afEords no facilities for storage during long periods of time.^^ The storage warehouse is especially designed for storage purposes. The railway company imposes storage charges, not for gain especially, but in order that it may be enabled to clear its depots, to the end that current business may not be blockaded. That this object may be effected it is justified and necessary to impose a rate higher than that fixed by the public storage warehouse, and if this were not done, there would be no in- ducement for the removal of goods from the depot to the pub- lic warehouse. The business public is as much interested as the railroad in having goods removed from cars and depots within a reasonable time after they reach their destination. Another fact which renders storage in a railway depot expen- sive and hazardous is that owing to the daily movement of traffic into and out of the depot, goods in storage are subject to the risk of damage which often results in loss to the rail- road as well as to the owner of the goods.^^ §269. Demurrage or "Car-Service." See Chapter 18 for full consideration. §270. Terminal Charges must be Just and Reasonable. By Section 1 of the Act to Eegulate Commerce, all charges for services in connection with the receipt, delivery, storage and handling of property transported are required to be just and reasonable.^^ aiBlackman, Jr., v. Southern Railway Co. (1904), 10 I. C. C. R. 352. 22 Ibid. 23 Pennsylvania Millers' State Assn. v. P. & R. Ry. Co. et al., 8 I. C. C. R. 531. §§ 371-273] INTEESTATK TRANSPOETATION. 430 A terminal charge for delivering carloads of live stock to the Union Stock Yards in Chicago, a point beyond the carrier's line, if in itself just and reasonable, and separately stated in the tariff schedules, as required by the amended Act to Eegu- late Commerce, cannot be condemned or the carrier ordered to reduce it, on the ground that it, taken together with prior charges of transportation over the lines of the carrier, or of connecting carriers, makes the total charge to the shipper un- reasonable.^* § 271. Publication of Regulations affecting Terminal Service and Charges Therefor. See Section Jf61, post. §272. Carrier not required to telegraph Consignor When Shipment Is Refused by Consignee or Latter Can- not be Found. The Commission has declined to impose on carriers the duty of telegraphing to the consignor in the event that a shipment is refused by the consignee or when the consignee cannot be found. The Commission stated that it was unable to see why the carrier that has completed the contract of carriage, and has delivered a shipment to the consignee thereof, who has surrendered the bill of lading and accepted the shipment, should again accept custody of and liability for the shipment, just because the consignee alleges that the commodity is not of the grade or quality agreed upon between himself and the consignor.^^ Surely if the owner of the property suffers damage by reason of any unreasonable delay on the part of the carrier in advising him that the freight is undelivered, such owner has a remedy at law.^" §273. Discrimination in Terminal Facilities and Charges be- tween Commodities. See Section 366, post. 24 1. C. C. V. Stickney et al. (1909), 215 U. S. 66, 54 L. ed. , 30 Sup. Ct. 66, affirming 164 Fed. Rep. 638. 25Kehoe & Co. v. N. C. & St. L. Ry. Co. (1908), 14 I. C. C. R. 556. 28 Ibid. 431- TERMINAL FACILITIES AND KEGULATIONS. [§ 274 §274. Live Stock Facilities. TJA. Duty of Carrier to Furnish Proper Facilities for Handling Live Stock. A railroad company, as a carrier of live stock, is obliged to provide necessary means and facilities for receiving live stock offered to it for shipment and for its delivery to the consignee. The duty of a carrier of live stock to receive, transport and deliver it will not be fully discharged unless the carrier makes provision at the place of loading to properly receive and load the stock, and provision at the place of unloading to properly deliver the stock to the consignee.^^ A carrier of live stock cannot make a special charge for merely receiving or delivering it in and through stock yards provided by itself, and it cannot invest another corporation with authority to impose burdens of that kind upon shippers and consignees."' When a railroad company does not provide suitable facili- ties for the delivery of live stock contracted to be carried by it, it may be compelled to deliver it through facilities fur- nished by the consignee."' 1[ B. Location ^of Live-Stock Depot. A railroad company may maintain its live-stock depot at a particular point, although it neither builds nor repairs nor insures the stock pens into which the stock is unloaded, and does not hire or control the men who do the unloading; and whether the Union Stock Yards at Chicago have been, in rail- road phraseology or in legal definition, the depot of the rail- road is immaterial, for they were, and still are, in fact the point to which the stock is transported and unloaded under the. shipping contract of the carrier.'" 27 Keith et al. v. Kentucky Central Rd. Co. et al. (1887), 1 I. C. C. R. 189; 1 I. C. R. 601; Covington Stockyards Co. v. Keith (1891), 139 U. S. 128; 11 Sup. Ct. Rep. 461, 35 L. ed. 73. 28 Ibid. 29 Ibid. 30 Cattle Raisers' Assn. of Texas et al. v. C. B. & Q. Rd. Co. et al. (1905), 11 I. C. 0. R. 277. § 274] INTEESTATE TKANSPOETATION. 432 1[ C. Legality of Charge for Switching Live Stock to and FROM Lines op Caeeiee and the Union Stock Yards IN Chicago. Interstate Commerce Commission v. Receivers of the Chicago Great Western Railway Co. et al./^ commonly known as the Terminal Charge ease, involved the right of carriers to im- pose a charge of $2 per car for delivery of live stock at the Union Stock Yards, Chicago. The Union Stock Yards is the only point in Chicago at which live stock is or can be delivered in considerable quantities, and this has been true for many years past. Up to June 1, 1894, all railways entering Chicago had made delivery at the Union Stock Yards for the through rate, but on that date all made effective a terminal charge of $2 per car. The ex- cuse for making this charge was that the Chicago Junction Eailway, which owns the tracks upon which the stock yards are situated, had for the first time imposed a trackage charge which averaged about $1 per car. Complaint was made, to the Commission attacking this $2 charge. It is, not alleged that the charge itself was unreason- able, but rather that it was unreasonable to impose any charge, since the rate carried with it a delivery. The Commission held that since the expense of making delivery to the carrier had been increased $1 per car the railroads might properly make a terminal charge of that amount, but that any further addition was unjust. At that time it had no power to make an order fixing any definite rate, but it recommended that the carriers impose a terminal charge not exceeding $1. Proceedings were brought to enforce this recommendation, which finally reached the Supreme Court.'^ That Court held that this delivery to the Union Stock Yards had been included 31 See note 24, supra. 32 1. C. C. V. C. B. & Q. R. Co. et al. (1900), 103 Fed. Rep. 249, 43 C. C. A. 209, affirming 98 Fed. Rep. 173, dismissing petition of Inter- state Commerce Commission in Cattle Dealers' Assn. v. Ft. W. & D. C. Ry. Co. (1898), 7 I. C. C. R. 513. Decision affirmed by Supreme Court, I. C. C. V. C. B. & Q. R. Co. et al. (1902), 186 U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. Rep. 824. 433 TERMINAL FACILITIES AND REGULATIONS. [§ 374 in the rate previous to June 1, 1894, and approved the finding of the Commission that carriers should have added but $1 to their rates. For other reasons the Court declined to enforce the recommendation of the Commission and dismissed the bill without prejudice to the right of the Commission to pro- ceed further in the correction of the apparent wrong. These proceedings before the Court and Commission had occupied many years and were just concluded when the Hep- bum amendment took effect. The complainants in the original case at once applied to the Commission to make an order under that Act, requiring the carriers to charge not exceeding $1 per ear for this terminal service, and such an order was made. The carriers brought suit to restrain its enforcement, the Circuit Court granted an injunction, and the Supreme Court now affirms that decree. The Court holds that inasmuch as $2 was a reasonable charge for the service rendered in making delivery at the stock yards, the Commission had no authority to reduce that charge to $1. The Commission had expressly found that $2 was a reasonable charge, looking to the cost of the service, and had stated that it ordered the rate reduced because, under the circumstances, it was unreasonable to impose any terminal charge except so far as that charge was justified by the added cost of service to the carriers. This position of the Commission was referred to and approved by the Supreme Court in the first case, but is not alluded to in the opinion in the present case. These defendants transport live stock both to Chicago and to other live-stock markets, like Kansas City and St. Louis. No corresponding charge is imposed at these markets, and the Commission found that to make this charge at Chicago was an unjust discrimination against Chicago. This finding is. not alluded to in the opinion. This case apparently holds that if railroads impose a termi- nal charge the only power of the Commission is to inquire whether that charge is reasonable; it has no authority to in- quire whether to impose the charge at all is unjust and un- reasonable. Eegulation — 28. § 275] INTERSTATE TRANSPOHTATION. 434 §275. Jurisdiction of Interstate Commerce Commission over Terminal Facilities and Terminal Charges. IJA. Power oe Commission to Compel Establishment and Maintenance oe Station Facilities. The obligation to provide station facilities at a given point along the line of a railroad may arise under the terms of the charter of a company or may be imposed by statute, and some authorities assert that the duty exists also at common law; but the Commission is not the proper forum to which to appeal for the enforcement either of a charter, statutory or common-law obligation, as it has no authority to issue the writ of mandamus, and possesses no common-law jurisdiction.^^ While the Commission may draw upon the wisdom of the common law for guidance in the consideration of many ques- tions, yet its jurisdiction as an administrative and quasi-judi- cial body rests wholly upon the Act to Regulate Commerce.^* The contention that the Commission has power, under the Act to Eegulate Commerce, as amended June 29, 1906, to re- quire a common carrier to locate or relocate and maintain a station at a given point is open to doubt; the Commission has stated that, without deciding this question, it is manifest that it shall not exercise such power unless all the facts and con- ditions clearly indicate that the interests of the general public in the locality involved are materially impaired by the lack of such facilities.^° ]\ B. Jurisdiction of Commission over Time of Closing Freight Depots. The Commission is authorized by the Act to Regulate Com- merce, after investigation, to order carriers to cease and desist from subjecting any particular person, locality or description 33 Jones et al. v. St. L. & S. F. Rd. Co. (1907), 12 I. C. C. R. 144; see also Eddleman v. Midland Valley Rd. Co. (1908), 13 I. C. C. R. 103; Snook V. 0. R. Co. of N. J. (1910), 17 I. C. C. R. 375. 34 Ibid. 35 Ibid, 435 TERMINAL FACILITIES AND REGULATIONS. [§ 375 of trafSe to undue or unreasonable prejudice or disadvantage in any respect whatsoever, and its jurisdiction extends to a case of alleged unlawful prejudice and disadvantage to ship- pers of outbound package freight through enforcement by car- riers of a regulation providing for the earlier closing of depots used for the reception of such freight."" 1[ C. Commission no Jurisdiction over Delay in Eeceipt, POEWAEDING OE DELIVERY OF TeAFFIC. The Commission has no jurisdiction over cases which merely involve delay or negligence in the receipt, forwarding or de- livery of property offered for transportation."^ Tf D. Commission no Authority to Peescribe Certain Time TO BE Allowed Consignee to Designate Point of Deliveey. Transportation by rail undoubtedly involves a suitable de- livery. However, when a carload of hay destined to East St. Louis, Ills., is delivered by the carrier at a warehouse desig- nated by the shipper or consignee prior to arrival in that city, or to the proper switching road, or is placed upon the team track of the carrier, if no specific delivery is named, the car has been properly delivered and the carrier may insist that the consignee shall accept such delivery; and in case the con- signee intercepts and sells the carload while upon a hold track, after arrival at East St. Louis, but before such delivery he thereby accepts such delivery. Although authority over the transportation must carry with it authority over the delivery, yet if the consignee instead of removing the hay from the car so delivered, sells it to a customer, and the carrier, upon an order of the original consignee or of the purchaser, moves the car to the purchaser's warehouse in Bast St. Louis, that is a new and independent service or reeonsignment performed entirely within the State of Illinois, of which the Interstate Commerce Commission has no jurisdiction."* It is probable 36 See note 3, supra. 37 Richmond Elevator Co. v. P. M. Rd. Co. (1905), 10 I. C. C. R. 629. 38 St. Louis Hay & Grain Co. v. C. B. & Q. Ry. Co. et al. (1905), 11 I. C. C. R. 82. § 275] INTERSTATE THAXSPOBTATION. 436 that the Congress of the United States might, either directly or indirectly through a commission require that such shippers be allowed a certain time after arrival in East St. Louis to designate the point of delivery for interstate shipments, and that such delivery be made accordingly.^^ ti e. jueisdiction of commission over eules goveening Loading and Unloading of Freight. Eules and regulations prescribing who shall load and unload cars of freight are rules or regulations affecting rates, and are therefore subject to the control of the Commission under the fifteenth section of the Act to Eegulate Commerce.*" U F. Exclusive Jurisdiction op Commission over Terminal Facilities and Charges Eelating to Interstate Transportation. A shipment is not completed until arrival at destination and delivery to the consignee ; and the authority vested in Congress by the commerce clause of the Constitution covers everything related to the delivery of freight transported be- tween the States.*^ It is well settled that in the absence of Congressional action the States may legislate with respect to matters which are strictly local in character, even though by so doing they may, to some extent, regulate interstate commerce; but, as said by the Supreme Court in the Port Wardens case*" "whatever sub- 39 St. Louis Hay &c. Co. v. C. B. & Q. R. Co., 11 I. C. C. R. 82. *o Wholesale Fruit & Produce Assn. v. A. T. & S. F. Ry. Co. et al. (1908), 14 I. C. C. R. 410, citing Preston & Davis v. D. L. & W. R. R. Co. (1907), 12 I. C. C. R. 114, a preliminary iniunction to restrain the enforcement of the order of the Commission pending a hearing on the merits being refused in D. L. & W. R. R. Co. v. I. C. C. (1907), 155 Fed. Rep. 512. « Rhodes V. Iowa, 170 U. S. 412, 426, 42 L. ed. 1088, 18 Sup. Ct. 664; Bowman v. C. & N. W. Ry., 125 XJ. S. 465, 31 L. ed. 700, 8 Sup. Ct. 689, 1062; McNeill v. Southern Ry. Co., 202 U. S. 543, 559, 50 L. Ed. 1142, 26 Sup. Ct. 722. 42 Port Wardens Case (Cooley v. Board of Port Wardens) (1851), 12 How. (U. S.) 199, 13 L. ed. 996. 43'(' TERMINAL ExVCILITIES AND EBGULATIONS. [§ 275 jects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislatioc. by Congress." The question of terminal charges imposed in connection with interstate transportation would seem to be within the scope of this principle. The subject is national in character, and uniformity of regulation is essential. If the individual States were permitted to legislate in this field, endless confusion and discrimination would be the result. Such legislation would operate as a direct burden upon interstate commerce, and the Supreme Court has repeatedly refused to sustain State laws which had this effect.*^ But it is unnecessary to decide that the Federal authority over this subject is exclusive, inasmuch as Congress has taken definite action and removed the subject altogether from the field of State regulation. The first section of the Act to Regulate Commerce, after outlining the scope of the Commis- sion's jurisdiction, defines transportation as including "all services in connection with the receipt, delivery, elevation, transfer in transit, * * * storage, and handling of prop- erty transported." SecJtion 6 of the Act provides that the carrier's schedules "shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require." Beyond all possibility of doubt, therefore, the duty of regulating terminal charges when related to interstate transportation has been lodged with the Interstate Commerce Commission, and Federal Courts have so held.^* The power of Congress to act with reference to this subject 13 Wabash, St. Louis & Pacific Ry. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 7 Sup. Ct. 4; Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1S88, 18 Sup. Ct. 664; Bowman v. C. & N. W. Ry. Co., 125 U. S. 465, 31 L. ed. 700, 8 Sup. Ct. 689, 1062; McNeill v. Southern Ry. Co., 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. 722; Central of Georgia Ry. Co. v. Mur- phey, 196 U. S. 194, 204, 49 L. ed. 444, 25 Sup. Ct. 208. 44 United States v. Standard Oil Co., 148 Fed. Rep. 719, 722; Michie V. N. Y. N. H. & H. R. R. Co., 151 Fed. Rep. 694, 695. § 376] INTERSTATE TKANSPORTATION. 438 is indisputable; that Congress has made provisions for the regulation of these charges is just as clear; and it necessarily follows that a State law which conflicts with the Federal stat- ute must give way/^ The authority expressly conferred upon the Interstate Commerce Commission would be nugatory if the concurrent authority of the State were recognized.*" §276. States no Authority over Terminal Services and Charges Affecting Interstate Transportation. Property shipped from a point in one State to a point in another State retains the character of interstate commerce un- til it is actually delivered to the consignee, and an order of a State authority commanding the carrier to place cars con- taining such property on the private siding of the consignee for unloading, is void as an interference with the authority vested in the Interstate Commerce Commission by the Act to Regulate Commerce.*' All services incidentar or necessary to the transportation and final delivery of an interstate shipment are a part of the interstate transportation, and any charges relating thereto are subject to the provisions of the Act.*' The right of Congress to control interstate commerce is not solely limited while the commerce is in actual transportation, but extends to and includes the necessary handling and de- livery of that commerce at terminal points. A State statute, therefore, which imposes penalties for unjust discrimination in regard to the furnishing of terminal facilities, can have no 45 1. C. C. V. Detroit. G. H. & M. Ry. Co. (1897), 167 U. S. 633, 642, 42 L. ed. 306, 17 Sup. Ct. 986; Gulf, Colorado, etc., Ry. v. Hefley (1895), 158 U. S. 98. 39 L. ed. 910, 15 Sup. Ct. 802. 46 Wilson Produce Co. v. Pennsylvania R. R. Co. (1908), 14 I. C. C. R. 170, citing Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350; I. C. C. v. C. & A. R. R. Co., 215 U. S. 479; I. C. C. v. I. C. R. R. Co., 215 U. S. 452; B. & O. R. R. Co. V. United States, 215 U. S. 481. 47 Southern Ry. Co. v. Greenboro Ice & Coal Co. et al. (1904), 134 Fed. Rep. 82; affirmed in McNeill v. Southern R. Co. (1906), 202 U. S. 543; 26 Sup. Ct. Rep. 722; 50 L. ed. 1142. 48 State V. A. T. & S. F. Ry. Co. (1903), 176 Mo. 687; 75 S. W. 776; 63 L. R. A. 761. 439 TEEMINAL FACILITIES AND REGULATIONS. [§ 376 application to interstate shipments since that subject is fully covered by the Interstate Commerce Act.*' The interstate transportation of cars from another State which have not been delivered to the consignee, but remain on the track of the railway company in the condition in which they were originally brought into the State, is not completed and they are still within the protection of the commerce clause of the Constitution.'" "While a State in the exercise of its police power may confer power on an administrative agency to make reasonable regu- lations as to the place, time and manner of delivery of mer- chandise moving in channels of interstate commerce, any reg- ulation which directly burdens interstate commerce is a regu- lation thereof and repugnant to the Federal Constitution, and so held that an order of the North Carolina Corporation Com- mission requiring a railway company to deliver cars from an- other State to the consignee on a private siding beyond its own right of way was a burden on interstate commerce and void.'^ So it has been held that a State is without authority to com- pel a railroad company to transfer cars of live stock to a con- necting road at a point of connection within the State, where the shipment was received in another State, and is, therefore, a subject of interstate commerce.'^ ■IS Fielder v. M. K. & T. Ry. Co. (1897), 42 S. W. 362 (Tex. Civ. App.) 50 McNeill V. Southern Ry. Co. (1906), 202 U. S. 543; 26 Sup. Ct. Rep.. 722; 50 L. ed. 1142, affirming 134 Fed. Rep. 82. 51 Ibid. 52 Central Stock Yards Co. v. L. & N. Rd. Co. (1902), 118 Fed. Rep. 113, 55 C. C. A. 63, affirming 112 Fed. Rep. 823, decree affirmed by Supreme Court in 192 U. S. 568; 24 Sup. Ct. Rep. 339; 48 L. ed. 565. CHAPTER XVIII. DEMURRAGE OR "CAR SERVICE." Section 277. Demurrage defined. 278. Car-Service Charge Considered as a Penalty versus Rental or Storage Charge. 279. Right of Carriers to assess Demurrage Charge. 280. Different Plans of Car Service considered. 281. Factors to be considered in fixing Car-Service Rules. 282. Jurisdiction of Interstate Commerce Commission Exclusive over Demurrage and other Terminal Charges affecting Interstate Ship- ments — State Regulations not Applicable. 283. Demurrage Charges and Regulations affecting Interstate Ship- ments Must be Shown in Published Schedules of Carriers. 284. Demurrage Charges must be Just and Reasonable. 285. Difference in Free-Time Allowance based on the Nature and Char- acter of the Commodity. 286. Duty of Shipper or Consignee to pay Demurrage Charges. 287. Duty of Carriers to collect Demurrage Charges. 288. Case in Which Consignee is relieved from Payment of Demurrage Charges. 289. Assessment of Demurrage on Privately-Owned Cars. 290. Demurrage Charges accruing pending Controversy between Ship- per and Carrier. 291. Demurrage Charges accruing pending Controversy between Con- necting Carriers. 292. Demurrage Charges on "Astray" Shipments. 293. Demurrage Charges resulting from Strikes. 294. Demurrage on F. 0. B. Shipments. 295. Car-Service Charges on TraflSc from and to Canada. 296. Reciprocal Demurrage Considered. 297. Waiver of Demurrage Charges by Carriers. 298. Uniform Demurrage Rules. § 277. Demurrage defined. The term "demurrage" probably had its origin in Admir- alty, where it is understod to mean the delay of a vessel in port by the freighter or charterer beyond the lay days allowed 440 441 DEMDEKAGE OE "CAE SEEVICE." [§ 378 for loading, unloading, or sailing; it also means the amount due by the freighter or charterer to the owner of the vessel for such detention.^ The delay to the vessel and the payment to be made for it are both called demurrage.^ Mr. Justice Story of the United States Supreme Court has said that "demurrage" is merely an allowance or compensation to the owner for the delay or de- tention of a vessel.^ Applying the above definitions to the term "demurrage" as used in railroad transportation, simply means the charge assessed by the carrier against the shipper or consignee for the detention of the vehicles of carriage beyond the time allowed for loading, or unloading; although among railroad and traffic men this charge for the detention of the cars is generally denominated "ear-service charge," yet the two terms seem to be used synonymously. § 278. Car-Service Charge Considered as a Penalty versus a Rental or Storage Charge. In considering the nature of a car-service charge, it may be well to inquire if such a charge be storage, rental or a penalty. There are no authorities to support a contention that car- service charge is storage. If it be contended that the ear- service charge is car rental, then it must follow that the charge imposed by the rules generally is unreasonable, because a charge of $1 per day is $365.00 per year or over 36 percent of the ear value, estimating freight ears to be worth $1,000. No one would attempt to justify a 36 percent rental. The charge of 50 cents per day that one railroad pays another for the use of its ear is rental, and there could be no argument advanced that would conveniently justify the fairness of charg- ing one party 100 percent more than another party for the same service, which it would amount to if ear-service charge were car rental; especially when the party paying 50 cents per day is subjecting the car to the wear and tear of usage. 1 Bouvler's Law Dictionary. 2 Abbott's Shipping. 3 The Apollon, 9 Wheat. (U. S.) 362, 6 L. ed. Ill (1824). ^ 279] INTERSTATE TKANSPOETATION. 442 while the party paying $1 is not subjecting the car to usage. Let us consider the car-service charge in the nature of a penalty. The railroads declare emphatically that revenue from this source is not the object; that they prefer the cars re- leased; that they are not maintaining car-service bureaus as rental agencies, but as instruments whose function is to reduce car detention to a minimum. The collection of ear-service charge is not in itself an end, but only a means to an end; therefore a much larger charge for car detention is imposed than would be justified as rental for storage in order to make it unprofitable for shippers or consignees to detain cars.* The demurrage charge of $1 , per car which is usually as- sessed by carriers, is imposed not on the basis of a fair quantum meruit, but as a penalty to secure the prompt release of the car.= § 279. Right of Carriers to assess Demurrage Charge. A railroad company is a common carrier. Its duty is to transport freight to destination and to deliver it to the con- signee. It is the duty of the consignee to receive his freight within a reasonable time and if he neglects to do so the lia- bility of the railroad company as a common carrier ceases and it becomes simply a warehouseman. It is under no legal lia- bility to continue to discharge the duties of a warehouseman but may insist that the consignee shall receive and remove his freight. The consequences to the railway of neglect to do this are not merely in case of carload freight the loss of the use of the car. The uncertainty arising from the fact that cars are sometimes unloaded promptly and sometimes not, is em- barrassing. The congestion of its terminals is often and per- haps usually a more serious matter than the loss of its cars." The law does not require a common carrier to give its cars and tracks under any terms for use as warehouses or places of business. After allowing a reasonable time for loading or unloading cars, the carrier may impose such charges for 4 Annual Report Railroad Commission of Ohio (1907). 5 St. Louis Hay & Grain Co. y. M. & O. R. Co. et al., 11 I. C. C. R. 90. eKehoe v. C. & W. Ry. Co. et al. (1905), 11 I. C. C. R. 166. 443 DEMURKAGE OE "CAE SEEVICE." [§ 279 further detention as will lead to the speedy release of its equip- ment. A carrier has a right to impose such charges at its ter- minals as will render that terminal available for the purpose for which it was intended.' It would be not only much more expensive but often impossible for the railways of this country to handle their traffic at many points unless they required the prompt removal of the freight from the car. To permit one person to use the cars of a railroad company for a store- house and to deny that privilege to another creates a discrim- ination between shippers which is often serious. For these reasons and others it is not only proper but highly essential that railroad companies should make and enforce uniformly such reasonable demurrage requirements as will insure the prompt receipt by the consignee of his freight. The demur- rage charge which is imposed for that purpose is not, how- ever, based upon the fair rental value of a car; it is in the nature of a penalty. While it should not be sufficient in amount to work an undue hardship upon the shipper who must occasionally pay it, it should be sufficient in amount to accomplish the purpose for which it is intended. $1 per day is the demurrage charge universally named by car-service associations in all parts of this country in case of car load freight, and the same amount is generally if not uniformly fixed by railroad commissions invested with power to make rates and regulations.* Demurrage charges and charges of a kindred nature are imposed as compensation to a carrier for an ^additional service. The rate of freight includes a delivery of the property; it does not include the storage of the property after a reasonable opportunity has been afforded the consignee to receive it. "When, therefore, the carrier through the failure of the con- signee to promptly remove the property is obliged to store the same either in its cars or its warehouses, it preforms a service not embraced in the rate and for which additional com- pensation may properly be exacted. ° 7 Wilson Produce Co. v. P. R. R. Co., 16 I. C. C. R. 116. 8 See note 6. supra. 9 New York Hay Exchange Association v. P. R. R. Co., 14 I. C. C. R. 178. §§ 280-282] INTEKSTATE TKANSPOKTATION. 444 § 280. Different Plans of Car Service considered. There are, generally speaking, three plans of car service in practice: Straight, Average and Reciprocal. Straight ear service makes a definite allowance for free time and provides a definite sum per day to be charged against shipper or receiver, for detention of cars beyond the specified free time, for loading or unloading. The car-service rules enforced generally are of this class. Average ear service credits the shipper and receiver with good time; that is, if he loads or unloads certain cars within the free time, he is credited to offset penalties that may accrue because of detention beyond the free time in loading or un- loading certain other cars.^" For explanation as^ to reciprocal car service see Section 296, post. § 281. Factors to be considered in fixing Car Service Rules. Car-service rules should take cognizance of "bunching" enroute. The term "bunching" as applied to carload freight in transit means that carload shipments forwarded from orig- inating point on different dates are delivered at destination on the same date. Car-service rules should make allowance for weather conditions. There are some kinds of freight that cannot be loaded or unloaded in wet or severe weather with- out damage; a snow-storm, a heavy rain-fall, or a very low temperature may interfere with or entirely prevent out-of-door work. The size of the car should be regarded as a factor in determining the free time allowance.^^ §282. Jurisdiction of Interstate Commerce Commission Ex- clusive over Demurrage and other Terminal Charges affecting Interstate Shipments. — State Regulations not Applicable. In Wilson Produce Co. v. Pa. B. R. Co.,^" the Commission 10 See note 4, supra. 11 See note 4, supra. 12 Wilson Produce Co. et al. v. Pennsylvania Rd. Co. (1908), 14 I C. C. R. 170; case reheard (1909), 16 I. C. C. R. 116. 445 DEMUEKAGE OK "CAR SERVICE." [§ 283 stated that demurrage charges when associated with an inter- state movement appertain directly to interstate commerce. They represent the carrier's compensation for services rendered in connection with the transportation. A shipment is not completed until its arrival at destination and delivery to the consignee; and the authority vested in Congress by the com- merce clause of the Constitution covers everything related to the delivery of freight transported between the States. ^^ In the case of Interstate Commerce Commission v. D., G. H. & M. By. Co.,^* the Supreme Court suggested that the Commis- sion would be acting within its power if it should order that railway companies should regard cartage, when furnished free, as a terminal charge and include it in their schedule. If cart- age charges may be regarded as a proper subject of national regulation, Federal authority over demurrage and terminal charges in connection with interstate commerce cannot be chal- lenged. The Commission further held that the Federal au- thority in this field is exclusive. It is well settled that in the absence of Congressional action the State may legislate with respect to matters which are strictly local in character, even though by so doing tbey may, to some extent, regulate interstate commerce; but, as said by the Supreme Court of the United States in the Port Wardens case^^ "whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regu- lation, may justly be said to be of such a nature as to require exclusive legislation by Congress." The question of terminal charges imposed in connection with interstate transportation would seem to be within the scope of this principle. The subject is national in character and 13 Rhodes V. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. 664; Bowman v. C. & N. W. Ry. Co., 125 U. S. 465, 31 L. ed. 700, 8 Sup. Ct. 689, 1062; McNeill v. Southern Ry. Co., 202 U. S. 543. 26 Sup. Ct. Rep. 722; 50 L. ed. 1142, affirming 144 Fed. Rep. 82. "I. C. C. V. D. G. H. & M. Ry. Co., 167 U. S. 633; 17 Sup. Ct. Rep. 986; 42 L. ed. 306, affirming 74 Fed. Rep. 803; 43 U. S. App.- 308. Same case, 57 Fed. Rep. 1005; 3 I. C. C. R. 613; 3 I. C. R. 60. 15 Port Wardens Case (Cooley v. Board of Wardens), 12 How. (U. S.) 299, 13 L. ed. 996. § 282] INTERSTATE TKANSPOETATION". 446 uniformity of regulation is essential. If the individual States were permitted to legislate in this field, endless confusion and discrimination would be the result. Such legislation would operate as a direct burden upon interstate commerce and the Supreme Court of the United States has repeatedly refused to sustain State laws which had this effect.^" But it is unnecessary to decide that the Federal authority over this subject is exclusive, inasmuch as Congress has taken definite action and removed the subject altogether from, and free of. State regulation. The language of the Act is sufSeiently broad to cover demurrage or car-service charges on interstate shipments. ^^ The first section of the Act to Regulate Commerce after outlining the scope, of the Commission's jurisdiction, defines "transportation," as including "all services in connection with the receipt, delivery, elevation, transfer in transit, * * * storage, and handling of property transported." This section as further strengthened by the amendment of June 18, 1910, makes it the duty of all common carriers subject to the provisions of the Act to establish, observe and enforce just and reasonable regulations and practices affecting rates, and nil other matters relating to or connected with the reeeivina;, handling, transporting, storing and delivery of property sub- ject to the provisions of the Act which may be necessary or proper to' secure' the safe and prompt receipt, handling, trans- portation and delivery of property subject to the provisions of the Act upon just and reasonable terms, and prohibits every unjust and unreasonable regulation and practice with refer- ence to commerce between the States and with foreign coun- tries and declares the same to be unlawful. Section 6 pro- vides that the carriers' schedules "shall also state separately 16 Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 7 Sup. Ct. 4; Rhodes v. Iowa, 170 V. S. 412, 42 L. ed. 1088, 18 Sup. Ct. 664; Bowman v. C. & N. W. Ry. Co., 125 U. S. 465, 31 L. ed. 700, 8 Sup. Ct. 689, 1062; McNeill v. Southern Ry. Co., 202 U. S. 543 supra; Central of Ga. Ry. Co. v. Murphey, 196 U. S. 194, 49 L. ed. 444, 25 Slip. Ct. 218. "Michie v. N. Y. N. H. & H. Rd. Co., 151 Fed. Rep. 694 (1907). ■i-t? DEMUEKAGE OR "CAR SERVICE." [§ 383 all terminal charges, storage charges, icing charges, and all other charges which the Commission may require. ' ' Beyond all possibility of doubt, therefore, the duty of regu- lating terminal charges when related to interstate transporta- tion has been lodged with the Interstate Commerce Commis- sion, and Federal Courts have so held.^* The power of Con- gress to act with reference to this subject is undisputable ; that Congress has made provision for the regulation of these charges is just as clear; and it follows necessarily that a State law which conflicts with the Federal statute must give way." The authority expressly conferred upon the- Interstate Commerce Commission would be nugatory if the concurrent authority of the States were recognized. The Commission after investi- gation, may find the time for loarding or unloading a particu- lar commodity unreasonably small, and forbid the charging of demurrage at the expiration of that time and before the expiration of a reasonable time.^" 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 discrimination 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 depend- ent upon the judgment or discretion of some person or which provides for exemption therefrom in certain exigencies in the creation of which the carrier has no part.^^ For instance, the regulations adopted by the Ohio Railroad 18 United States v. Standard Oil Co., 148 Fed. Rep. 719; Michie v. N. Y. N. H. & H. Rd. Co., 151 Fed. Rep. 694. 18 See note 14, supra. 20 Pennsylvania Millers' State Association v. P. & R. Ry. Co. et al., 8 I. C. C. R. 531 (1900). 21 Rule 223, Con. Rul. Bui. No. 4 (May 12, 1908). 22 Ibid. § 383] INTERSTATE TRANSPORTATION. 448 Commission with reference to car service are invalid as to in- terstate shipments over interstate commerce railways, but as to intrastate commerce they are valid and enforceable.^' §283. Demurrage Charges and Regulations affecting Inter- state Shipments Must be Shown in Published Schedules of Carriers. U A. In General. The Act to Eegulate Commerce requires that carriers sub- ject thereto shall publish, post, and file "all terminal charges * * * which in any wise change, affect, or determine * * * the value of the service rendered to the passenger, shipper, or consignee,"^* and all such charges become part of the rates, fares and charges^^ which the carriers are required to demand, collect and retain. Such terminal charges include demurrage charges.^" 1[ B. Failure of Carrier to make Ebfekence in Tariff of Rates to Car-Service Tariff. In a particular ease^^ 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 generally. The tariff of rates did specify that 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. 23 Ann Arbor Rd. Co. et al. v. Railroad Commission of Ohio (1909), 8 Nisi Prius Report 233. 2* Act to Regulate Commerce. Section 6. 25 Act to Regulate Commerce. Section 6. 26 See note 21, supra. 27 Cudahy Packing Co. v. C. & N. W. Ry. Co., 12 I. C. C. R. 446 (1907). 449 DEMUREAGE OE "CAK SEEVICE." [§ 284 § 284. Demurrage Charges must be Just and Reasonable. % A. In General. The United States Circuit Court in the District of Massa- chusetts held that the provisions of the Act to Regulate Com- merce requiring for the transportation and for the "receipt, delivery, storage, and handling"^' of property by an inter- state carrier to be just and reasonable, and prohibiting dis- crimination, are sufficiently broad to cover demurrage charges on interstate shipments.^' If demurrage charges are made to commence before the expiration of a reasonable time for load- ing or unloading, this may be a violation of the above section of the Act referred to.^" This contention is further strengthened by the amendment of June 18, 1910, which makes it the duty of all common car- riers subject to the provisions of the Act to establish, observe and enforce just and reasonable regulations and practices af- fecting rates, and all other matters relating to or connected with the receiving, handling, transporting, storing and delivery of property subject to the provisions of the Act which may be necessary or proper to secure the safe and prompt receipt, handling, transportation and delivery of property subject to the provisions of the Act upon just and reasonable terms, and prohibits every unjust and unreasonable regulation and prac- tice with reference to commerce between the States and with foreign countries and declares the same to be unlawful.^"* TI B. Reasonableness of Chaege op $1 per Car pee Day. A demurrage or car-service charge of $1 per car per day has been held as a general proposition not to be unreasonable, by both the Federal Court and the Commission; deductions being made for holidays and Sundays and inclement weather.'^ 28 Act to Regulate Commerce. Section 1. 29 See note 17, supra. 30 See note 20. supra. 30a Act, Section 1 (as amended June 18. 1910). siMcBride C. & C. Co. v. C. St. P. M. & O. Ry. Co., 13 I. C. C. R. 571; Kehoe & Co. v. C. & W. C. R. Co., 11 1. C. C. R. 166; St. Louis Hay Regulation — 29. § 384] ixNTTEESTATE TEANSPOKTxVTlON. 450 T[ C. Case wheke Demuekage Chaege op $5 pee Day foe the Detention of Eefeigeeatoe Caes has been held to BE not Uneeasonable. In the case of Waxelbaum & Co. v. A. C. L. B. R. Go. et al.,^^ the defendant carriers were engaged in the transportation of peaches in iced refrigerator cars from points in the Georgia peach belt to various markets in the North and Northeast, viz., Washington, D. C, Baltimore, Md., Philadelphia, Pa., New York City, etc. Carriers assessed a penalty of $5.00 per car per day for an excess time over twenty-four (24) hours that cars were detained by the shippers; the reasonableness of which charge was in dispute. The Commission stated that the transportation of peaches involves elements of extraordinary hazard to the carriers. Weather conditions vary to such an extent that the crop is liable to be so retarded that cars which have been assembled for the movement will be left idle on the sidetracks for a considerable period of time, involving more or less loss. On the other hand, when the weather is propitious, peaches ripen so rapidly as to make it imperative that equip- ment be furnished almost immediately. In that case if the carriers have fallen short in their estimates and have not avail- able at the loading points sufficient equipment for handling the peaches offered, they may be liable for resulting losses. The average amount of ice actually used in the refrigeration of a car of peaches, including the initial icing and reicing at all points en route between the peach orchards in Georgia and New York is 20,398 pounds, found by actual test of 603 cars made by inspectors for this purpose by the Commission. This, of course, would not include the ice lost by melting & Grain Co. v. C. B. & Q. R. Co. et al., 11 I. C. C. R. 82; Michle T. N. Y. N. H. & H. Rd. Co., 151 Fed. Rep. 694; Miller v. Mansfield, 112 Mass. 260; Miller v. Georgia R. H. Co., 88 Ga. 563; 15 S. B. 316; ' 18 L. R. A. 323; 30 Am. St. Rep. 170; Kentucky Wagon Mfg. Co. v. Ohio & M. Ry. Co., 98 Ky. 152; 32 S. W. 595; 36 L. R. A. 850; 56 Am. St. Rep. 326; Schumacher v. C. & N. W. Ry. Co., 207 111. 199; 69 N. E. 825; Nor- folk & Western v. Adams, 90 Va. 393; 18 S. E. 673; 22 L. R. A. 530; 44 Am. St. Rep. 916; Penna. R. R. Co. v. Midvale Steel Co., 201 Pa. 624; 51 Atl. 313; 88 Am. St. Rep. 836. S2 Waxelbaum & Co. v. A. C. L. et al., 12 I. C. C. R. 178 (1907). 451 DEMUEEAGE OR "CAE SEEVICE." [§§ 285, 286 while being transported or handled as freight, and it appears that the total cost of the ice used for refrigerating a car of peaches should be reckoned on the basis of twelve tons. The Commission held that they were not convinced that the charge of $5.00 per day for detention of refrigerator ears by shippers after the expiration of twenty-four hours subsequent to the placing of same for loading was shown to be unreasonable in view of all the circumstances and the nature of the services necessary in the handling of this par- ticular traffic. §285. Difference in Free-Time Allowance based on the Nature and Character of the Commodity. There is no violation of Section 2 of the Act which pro- hibits unjust discrimination, by the fact that on all com- modities besides the "96-hour commodities" only 48 hours "free-time" is allowed by carriers at Philadelphia, and on coal, coke, pig iron and iron ore 72 hours are allowed at interior points, while only 48 hours are allowed on the other traffic at interior points. Section 2 prohibits unjust discrimi- nation in "the transportation of a like kind of traffic," and does not only apply where the traffic is of different kinds or classes not competitive with each other.'' §286. Duty of Shipper or Consignee to pay Demurrage Charges. The shipper should pay the lawfully published charges applicable via the route over which the shipment moves; and make claim for refund if he believes he has been over- charged. The Commission will not include ordinarily in reparation award demurrage charges which accrued pending adjustment or subsequent to consignee's refusal to accept the shipment and pay the lawful charges thereon, but in special cases such demurrage charges may be included in the amount of refund. It is the duty of the consignee to pay demurrage charges 33 Amer. Warehousemen's Association v. 111. Cent. Rd. Co. et al., 7 I. C. C. R. 556 (1898). §§287, 288] INTERSTATE THANSPORTATION. 452 as per lawful tariffs, pending dispute, and then make claim for refund. Demurrage charges accruing because of error of a carrier are considered in the same light as are other addi- tional transportation charges caused by carrier's error; and if adjusted, the full expense thereof must be borne by the carrier whose agent is responsible for the error. When the delivering carrier demands more than the law- fully published rate via the route over which the shipment moved, the consignee is released from the obligation to pay demurrage charges during the pendency of the dispute as to the lawful rate.^* § 287. Duty of Carriers to collect Demurrage Charges. Demurrage charges accruing because of error of a carrier are considered in the same light as are other additional trans- portation charges caused by carrier's error; and if adjusted, the full expense thereof must be borne by the carrier whose agent is responsible for the error. It is the duty of the car- rier to collect, and of the consignee or shipper to pay, de- murrage charges assessed as per lawful tariffs, although such' charges may have accrued as the result of error on the part of some other carrier.'" §288. Case in Which Consignee is relieved from Payment of Demurrage Charges. When the delivering carrier demands more than the law- fully published rate via the route over which the shipment moved, the consignee is released from the obligation to pay demurrage charges during the pendency of the dispute as to the lawful rate.'" .84 Rule 81, Tariff Circular 15-A; Rule 32 Con. Rul. Bui. No. 4 (Feb. 3, 1908). 35 Ibid. 30 Rule 32, Con. Rul. Bui. No. 4 (Feb. 3, 1908). This ruling was made basis of decision in Porter et al. v. St. L. & S. F. ftd. Co.. 15 I. C. C. R. 1. 453 DEMUKEAGE OE "CAE SEEVICE." [§ 389 §289. Assessment of Demurrage on Privately-Owned Cars. If A. In Geneeal. The Commission decided in case No. 933, "In the Matter of Demurrage Charges on, Privately-owned Tank Gars,"^'' that pri- vate cars owned by shippers and hired to carriers upon a mileage basis are subject to demurrage when said cars stand upon the tracks of the carrier either at point of origin or destination of shipment, but are not so subject when upon either the private tracks of the owner of the car or the pri- vate track of the consignee. The carrier must charge de- murrage in all cases where such demurrage is imposed by tariff provision upon its own equipment, except when a pri- vately-owned car is upon a privately-owned siding or track and the carrier is paying or is responsible for no rental or other charge upon such car.'* A private sidetrack is one which is not owned by the rail- road, is outside the carrier's right of way, yards, or terminals, and to which the railroad has no right of use superior to the right of the shipper. This definition is based upon considera- tion of the carrier's right to the use of the track rather than the ownership of the land or rails.'' A private car is a car owned and used by an individual, firm, or corporation- for the transportation of the commodi- ties which they produce or in which they deal. It will include also cars owned and leased to shippers by private corpora- tions.*" The rule as to demurrage charges on private tank cars is applicable to all other private cars used by the railroads and paid for on a mileage basis.*^ A private car owned by one shipper but used with his con- sent by another shipper dealing in a different commodity is 87 In the Matter of Demurrage Charges on Privately Owned Tank Cars, 13 I. C. C. R. 378. 38 Rule 223, Con. Rul. Bui. No. 4 (April 13, 1908). 89 Ibid. 40 Ibid. 41 Rule 223, Con. Rul. Bui. No. 4 (April 13, 1908). § 289] INTEKSTATE THANSPOKTATION. 454 not a private car as that phrase has been defined and used by the Commission in connection with demurrage charges.*^ 1[ B. Case in which Demdkrage was held to be Eeasonable WHEN Assessed against Cars which were Detained ON A Siding Owned and Operated by the Carrier AND USED Exclusively by the Complainant. In the case of Cudahy Co. v. C. & N. W. By. Co.*^ the Commis- sion decided that the defendant's right to exact demurrage charges from the complainant on cars used by the defendant in transporting complainant's traffic while the cars are stand- ing on a siding owned and operated by the defendant, which was constructed by it for the sole use of the complainant, is not affected by the fact that the cars are owned by the latter, that the purpose of demurrage charges is to compel the prompt unloading and release of ears, and this is not only for the purpose of securing the use of the equipment, but also of relieving the tracks upon which that equipment must stand. Indeed, the congestion of the terminal is often a more serious matter for the railway than the mere loss of the use of the cars. It would appear reasonable, therefore, that railways should be allowed to charge demurrage upon private cars when standing upon the tracks of the railway and the Com- mission so held. U C. Demurrage on Private Cars Temporarily out of Service Standing on the Carrier's Storage Tracks. Demurrage is a charge for detention to cars that have been set by carriers for loading or for unloading. Private cars are subject to demurrage rule the same as is the carrier's equip- ment except when the private car is standing on the private sidetrack. It is not necessary to charge demurrage either on carrier's equipment or private ears when same are tempo- rarily out of service and standing idle upon the storage tracks *2 Rule 122, Con. Rul. Bui. No. 4 (Nov. 14, 1908). *3 See note 27, supra. 455 DEMURRAGE OR "CAE SERVICE." [§ 290 of the carrier unless provision for such charge is included in carrier's demurrage rules.** A private car owned by one shipper but used with his con- sent by another shipper dealing in a different commodity is not a private car as that phrase has been defined above.*' § 290. Demurrage Charges accruing pemding Controversy between Shipper and Carrier. T[A. Dispute as to the Method oe Paying Freight Ci-iaegbs. A shipper who had customarily paid his freight charges in checks was called upon, under a general order issued by the carrier, to pay his freight charges in cash during the financial distui-bances of 1907-1909. While the local agent was en- deavoring to get authority from the home office of the carrier to continue to accept checks from this shipper demurrage charges accrued. The Commission Held, That they could not lawfully be refunded.*^ In another case the Commission held that, regardless of a carrier's reasons for canceling a credit account, it is undoubted that it may demand its legal charges before delivering freight, and demurrage accruing during a controversy as to such pay- ment can not be refunded on that ground alone, but it must be shown that the charges are unreasonable or unjustly discrimi- natory.*"^ ff B. Dispute as to the Eeasonableness oe Established Eates. It is the duty of carriers and shippers to observe the estab- lished rates, and there can be no waiver of demurrage charges which accrued by reason of the refusal of consignee to accept shipments and unload ears pending a contest or dispute as to the reasonableness of the established rates.*' « Rule 123, Con. Rul. Bui. No. 4 (Nov. 14, 1908). *5 Rule 122, Con. Rul. Bui. No. 4 (Nov. 14, 1908). 46 Rule 39, Con. Rul. Bui. No. 4 (March 3, 1908). ieaFlsk & Son v. B. & M. R. R. (1910). 19 I. C. C. R. 299. 47 Coomes & McGraw v. C. & St. P. Ry. Co., 13 I. C. C. R. 192 (1908). § 291] INTERSTATE TEANSPORTATION. 456 § 291. Demurrage Charges accruing pending Controversy between Connecting Carriers. U A. Dbmuerage Charges Accruing account Disagreement BETWEEN Carriers under Eeconsignmbnt Tariff. Where a carrier provides in its tariff for reconsignment without any requirement for prepayment of freight or guaranty of the same it may not lawfully charge demurrage for the time during which it holds the shipment while par- leying with its connections as to advancement of its freight charges.*' 1[ B. Demurrage Charges Accruing pending Dispute between Connecting Carriers on Question of Divisions. The Commission has awarded reparation to cover demur- rage charges which accrued because of the refusal of the de- livering line to receive a car from its connections, where there were no established divisions between such carriers and where both such carriers were a party to the through route and rate. The Commission held, that the fact that the car- riers by which the rate had been lawfully published and ad- vertised 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. That divisions are matters of private agreement between car- riers and for that reason, generally speaking, are of no spe- cial concern to shippers, nor are they essential to legalize a published through rate. It is clear that the additional charges imposed upon the shipment resulted from no neglect or fault on the part of the shipper.*' 48 Beekman Lumber Co. v. St. L. & S. W. Ry. Co. et al., 14 I. 0. C. R. 532 (1908). 49 Germain Co. v. N. O. & N. E. Rd. Co. et al., 17 I. C. C. R. 22. 457 DEMURRAGE OR "CAR SERVICE." [§§ 392, 393 H C. Demurrage Charges Accruing at Destination Account Eefusal op the Switching Eoad to accept Car with Advance Charges thereon. A shipment was forwarded with instructions to give de- livery on a certain road. The car moved over the proper route to destination and was tendered for switching to the road indicated in delivery directions. Under long-established custom, it declined to assume responsibility for charges on the shipment and refused to accept the car until transporta- tion charges had been paid. The carrier that brought the car in mailed a notice to the address of consignee, who was not known, and before the difficulty was straightened out demur- rage accrued. The Commission Held, That the demurrage charges lawfully accrued and should stand.^" §292. Demurrage Charges on "Astray" Shipments. An astray shipment of perishable merchandise was not re- billed to its proper destination, but was sold by the consignee at the point where he found it. The deliveripg carrier at that point had assessed demurrage charges before the shippers were able to locate the car. That carrier expressed its willing- ness to waive the demurrage if the Commission would permit.^^ The Commission decided that where a shipment is billed to an erroneous destination through error or oversight on the part of some agent or employe, the carrier may in bona fide in- stances of this kind return such 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 tariffs un- der which it will be done.'^ §293. Demurrage Charges resulting from Strikes. The Commission has no power to relieve carriers from the 50 Rule 144, Con. Rul. Bui. No. 4 (Feb. 8, 1909). 51 Rule 31, Con. Rul. Bui. No. 4 (Jan. 15, 1908). 62 Rule 74, Tariff Circular 15-A. §§ 294-296] INTEESTATE TRANSPORTATION. 458 obligations of tariffs providing for demurrage charges, on the ground that such charges have been occasioned by a strike.^^ § 294. Demurrage on F. 0. B. Shipments. "A" purchased a carload of lumber F. 0. B. at the milling point. Demurrage accrued on account of the failure of "B" the mill owner, to promptly load the car. Carrier inadvertent- ly delivered the car to "A" without collecting the demurrage. Upon its inquiry as to whether to demand the demurrage from A or B: Held, That the demurrage must be collected by the carrier either from the vendor or the vendee, but that the Commission cannot undertake to investigate the facts and determine for the carrier whether the vendor or the vendee is liable for the charges.^* § 295. Car-Service Charges on Traffic from and to Canada. With respect to traffic between points in Canada and points in the United States, the Commission does not waive the re- quirement that carriers shall file tariffs showing their terminal charges and that "Such charges must either appear specifically in the tariffs naming the rates or the tariffs establishing such charges must be specifically referred to in the tariffs naming the rates." § 296. Reciprocal Demurrage Considered. If A. Eeciprocal Demurrage Defined. Reciprocal car service is an attempt to balance the delin- quencies of carrier and shipper by reciprocal penalties. It provides that for delay in placing a car for loading or unload- ing the carrier shall forfeit for each day of such delay, a sum equal to that assessed against the receiver or shipper for undue detention after placing. To illustrate : Working un- der a reciprocal ear-service arrangement, "A" orders a car for loading; if it be not placed for him until five days after 68 Rule 8, Con. Rul. Bui. No. 4 (Nov. 18, 1907). 54 Rule 96, Con. Rul. Bui. No. 4 (Oct. 12, 1908). 65 Rule 191, Con. Rul. Bui. No. 4 (June 14, 1909). j 459 DEMUKEAGE OR "CAE SEEVICE," [§ 397 order has been given, the railroad company credits him with three days' car service; the carrier being allowed the same ■free time as is usually allowed the shipper. In the event A is assessed for detention of cars, this credit is applied. In some places reciprocal car service goes even further and assumes to penalize the carrier for delays in transit.°° This method of assessing car service, however, is not extensively in force. 1[ B. Jurisdiction of Inteestate Commeece ' Commission. The Commission is without authority to fix rules or regula- tions governing reciprocal demurrage.^^ 1[ C. Eeciprocal Cae Demdeeagb Consideeed as a Eemedt FOR Cae Shortage. See Section 176, ante. § 297. Waiver of Demurrage Charges by Carriers. IJA. Discrimination between Shippers in Waivee of ' Demurrage Charges. "Where a carrier undertakes to make any concession in the collection of demurrage charges from shippers, it must grant such privileges to all shippers alike under the same or similar circumstances and conditions.^* 1[ B. Carriers must Show in Published Schedules any Rule Suspending or Waiving Collection of Demue- EAGE Charges. Charges made by carriers for transportation and terminal services, and all rules and regulations which in any wise change, affect or determine the aggregate compensation paid therefor, are required by the statute^' to be shown upon their published rate schedules; and under such requirement it is the duty of all carriers subject to the Act to not only publish 56 See note i, supra. 57 Mason v. C. R. I. & P. Ry. Co., 12 I. C. C. R. 61 (1907). 58 See note 33, supra. ■; 50 Act to Regulate Commerce. Section 6. § 297] INTERSTATE TKANSPOETATION. 460 their demurrage charges, but any rule or regulation which makes any concession or affects a suspension of the collection of such charges."" 1[ C. Demurrage Charges Waived account Inclement Weather and the Action of the Elements. The Commission has decided that it is not permissible for carriers to provide that demurrage may be refunded or waived in case of inclement weather and leave it to the judgment of some person to determine what constitutes inclement weather. It is permissible to provide that demurrage charges shall be waived or refunded in case of weather interference of such severity as to damage the freight in handling it into br from the car, or when shipment is frozen so as to prevent or seri- ously hinder unloading, or when because of floods or high water, or snowdrifts which it is the carrier's duty to remove, it is impracticable to get to car for loading or unloading.*' TfD. Demurrage Charges Waived account Carriers "Bunching" Cars. There is nothing unreasonable or unlawful about a tariff rule which provides that in the event of the carrier's "bunch- ing" a shipper's cars and delivering them in excess of ship- per's facilities and ability to load or unload, demurrage vdll not accrue."^ Upon an informal complaint that cars were de- layed in transit and delivered by a carrier in such number as to exceed the shipper's facilities for unloading within the free time : Held, That tariffs ought to contain a rule provid- ing that when by fault of the carrier, cars are bunched in excess of the shipper's or consignee's ability to handle them within the free time, demurrage will not accrue. In the ab- sence of such a rule the Commission can determine the reason- ableness of such a practice only upon complaint filed." 80 See note 33, supra. 81 Rule 135, Con. Rul. Bui. No. 4 (Jan. 27, 1909). 82 American Creosotlng Works v. 111. Cent. Rd. Co. et al., 15 I. C. C. R. 160 (1909). 63 Rule 142, Con. Rul. Bui. No. 4 (Feb. 8, 1909). 461 DEMURRAGE OE "CAE SERVICE." [§ 297 U B. Demurrage Charges Waived under Special Circumstances. A sidetrack to an industry upon whicli a carrier had de- livered 18 heavily loaded cars sank because of the marshy character of the roadbed : Held, That the carrier may refund demurrage collected for the necessary detention of the ears while the sidetrack vpas being rebuilt.'* IT F. Waiver of Demurrage Charges where Sale op Freight DOES NOT YIELD THE AGGREGATE TRANSPORTATION CHARGES. A tariff contained a rule providing that: "When freight cannot be disposed of at point held for sufficient amount to realize by sale both freight and car service, or storage charges, demurrage charge may be refunded, waived, or canceled." The Commission Held, That the performance of a transpor- tation service determines the obligation of the carrier to col- lect and of the shipper to pay the published rates therefor and no subsequent fact, having no relation to the service can lawfully be made the basis for a refund or other departure from such rates. That the provision is therefore unlawful per se and cannot be accepted as authority for a waiver, re- fund, or cancellation of the tariff charges even as to a ship- ment made while the provision was contained in the published tariff.«= This ease must not be confused with the other cases of waiver of demurrage charges as reported supra. In the cases cited supra, the shipments had not yet come into the possession of the consignee and the demurrage charges were waived on account of circumstances beyond his control and before the carrier had completed the transportation service, while in the case under consideration the transportation service had been determined and the railroad's liability as a common carrier had ceased and it was simply occupying the position of ware- houseman. Any waiver or refund therefore, of any part of the transportation charges would savor of rebating. 64 Rule 117, Con. Rul. Bui. No. 4 (Nov. 13, 1908); 65 Rule 145, Con. Rul. Bui. No. 4 (Feb. 8, 1909). § 298] INTEESTATE TEANSPOETATION. 463 § 298. Uniform Demurrage Rules. In its recent annual report to Congress the Commission stated:^" "It seems appropriate to refer to the adoption of a uniform code of car demurrage rules by the National Asso- ciation of Railway Commissioners. As its name indicates, this association comprises the membership of all the railroad commissions of the United States, meeting in annual conven- tion for the purpose of considering common problems. At the 1908 session the Committee on Car Distribution and Car Shortage submitted a report which reviewed the severe car shortage of the previous fall and pointed out that the break- down of the country's transportation system at that time was chargeable in no small degree to the undue holding of cars by shippers and receivers of freight. As a step toward the improvement of existing conditions, it was recommended that a committee be appointed to draft a uniform code of car demurrage rules to be applicable alike on State and interstate traffic. This recommendation was unanimously adopted, and pursuant thereto a Committee on Car Service and Demurrage was appointed, consisting of a representative from the Rail- way Commission of each State and a member of this Com- mission. The work of this Committee was carried on with extreme care and thoroughness. Numerous conferences were held with expert car demurrage officials and a public hearing was called, at which representatives of shippers and carriers generally were present. The code as finally prepared repre- sents a serious effort to approximate the needs of every part of the traffic world without making unnecessary concessions to the demands of particular localities or special interests. Perhaps the most characteristic features of the code are (1) the tendency to limit 'free time' to the actual requirements of the consignor and the consignee, and (2) the refusal to give recognition to rules which have been employed as instru- ments of discrimination. The code was adopted by the Na- tional Association of Railway Commissioners by a large ma- jority, and has recently been indorsed by this Commission. Al- oe Twenty-Third Annual Report of I. C. C. (1909). 463 DEilUEEAGE OE "CAE SEEVICE." [§ 298 though these rules have encountered a certain amount of op- position, there are indications that they will be made generally- effective throughout the United States as contemplated. A number of the State Commissions, as well as several of the leading Car Demurrage Bureaus, have already announced their intention to put the uniform code into immediate effect. "It has been stated by competent authority that the general adoption and enforcement of demurrage rules allowing the smallest measure of- "free time" consistent with the needs of the public will be equivalent to the addition of 100,000 cars to the country's available car supply. If this effort to stand- ardize car demurrage regulations should meet with the success that is now promised, there is good reason for the belief that the efQciency of carriers will be greatly promoted, and that, incidentally, many unlawful advantages which powerful ship- pers have been able to secure through loose car-service rules will be eradicated. "The divided control over commerce gives rise to many problems, the successful solution of which is dependent upon harmonious action on the part of the State and National au- thorities. The extraordinary development of transportation within the last half century has made all sections of the country peculiarly interdependent, and it is obvious that regu- lations which interfere with the efficiency of carriers in one section will influence traffic conditions in widely separated areas. This is strikingly illustrated by certain phases of the demurrage question. Kailroad ears move freely to all parts of the country, often thousands of miles from the line of the owning road, and if, by means of local demurrage rules, such cars are indefinitely detained at a time when the carrier's services are most in demand — as in the fall, when the crops are being moved and the coal tonnage is most dense — a car famine will inevitably result. Cooperation between the Fed- eral and State Railroad Commissions with a view to securing the maximum of transportation efficiency and at the same time assuring equal service to shippers and receivers in all parts of the country, so far as they may be possible, augurs well for the future of Government regulations." § 298] INTEItSTATE TEANSPOETATION". 464 Following is a copy of the demurrage rules approved by- tie National Association of Railway Commissioners, Nov. 17, 1909, and by the American Railway Association, on January 27, 1910 : Rule 1. Gars subject to Rules. Cars held for or by consignors or consignees for loading, unload- ing, forwarding directions, or for any other purpose, are subject to these Demurrage Rules, except as follows: (a) Cars loaded with livestock. (b) Empty cars placed for loading coal at mines or mine sidings or coke oveiis. (c) Empty private cars stored on carrier's or private tracks, pro- vided such cars have not been placed or tendered for loading on the orders of a shipper. NOTE. — Private cars while in railroad service, whether on car- rier's or private tracks, are subject to these Demurrage Rules to the same extent as cars of railroad ownership. (Empty private cars are in railroad service from the time they are placed by the carrier for loading or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service are in railroad service from the time they are placed by the industry upon designated interchange tracks and thereby tendered to the carrier for movement. If such cars are subsequently returned empty they are out of service when withdrawn by the industry from the interchange; if returned under the load, railroad service is not at an end until lading is duly removed.) Rule 3. Free Time Allowed. (a) Forty-eight hours' (two days) free time will be allowed for loading or unloading on all commodities. (b) Twenty-four hours' (one day) free time will be allowed: 1. When cars are held for reconsignment or switching orders. 2. When cars destined for delivery to or for forwarding by a connecting line are held for surrender of bill of lading or for payment of lawful freight charges. 3. When cars are held in transit and placed for inspection or grading. (c) Cars containing freight for transshipment to vessel will be allowed such free time at the ports as may be provided in the tariffs of the carrier. Rule 3. Computing Time. NOTE. — In computing time, Sundays and legal holidays (National, State and Municipal) will be excluded. When a legal holiday falls on a Sunday, the following Monday will be excluded. 465 DEMURRAGE OR "CAR SERVICE." [§ 298 (a) On cars held for loading, time will be computed from the first 7:00 a. m. after placement on public delivery tracks. (b) On cars held for orders, time will be computed from the first 7:00 a. m. after the day on which notice of arrival is sent to consignee. On cars held for unloading, time will be computed from the first 7:00 a. m. after placement on public delivery tracks and after the day on which notice of arrival is sent to consignee. (c) On cars containing freight in bond, time will be computed from the first 7:00 a. m. after permit to receive goods is issued to consignees by United States Collector of Customs. (d) On cars containing freight subject to State inspection, time will be computed from the first 7:00 a. m. after inspection by State ofiicials. (e) On cars to be delivered on any other than public delivery tracks, time will be computed from the first 7:00 a. m. after actual or constructive placement on such tracks. See Rule 4 (Notification) and Rules 5 and 6 (Constructive placement). (f) On cars to be delivered on interchange tracks of industrial plants performing their own switching service, time will be computed from the first 7:00 a. m. following actual or constructive placement on such interchange tracks until return thereto. See Rule 4 (Notification) and Rules 5 and 6 (Constructive placement). Cars returned loaded will not be recorded released until necessary billing instructions are given. EULE 4. Notification. (a) Consignee shall be notified by carrier's agent in writing or as otherwise agreed to by carrier and consignee, within 24 hours after arrival of cars and billing at destination, such notice to contain point of shipment, car initials and numbers, and the contents, and, if trans- ferred in transit, the initials and number of the original car. In case car is not placed on public delivery track within twenty-four hours after notice of arrival has been sent, a notice of placement shall be given to consignee. (b) When cars are ordered stopped in transit the party ordering the cars stopped shall be notified upon arrival of cars at point of stoppage. (c) Delivery of cars upon private or industrial interchange tracks, or written notice to consignee of readiness to so deliver, will consti- tute notification thereof to consignee. EuLB 5. Placing Oars for Unloading. (a) When delivery of cars consigned or ordered to private or in- dustrial interchange tracks cannot be made, on account of the act or neglect of the consignee, or the inability of the consignee to receive, delivery will be considered to have been made when the cars were tendered. The carrier's agent must give the consignee written notice of all cars he has been unable to deliver because of the condition of the private or interchange tracks or because of other conditions attribut- able to consignee. This will be considered constructive placement. See Rule 4 (Notification). Eegulation — 30. § 298] INTERSTATE TRANSPORTATION. 466 (b) When delivery cannot be made on specially designated public delivery tracks, on account of such tracks being fully occupied, or from other cause beyond the control of the carrier, the delivery will be made at the nearest available point accessible to the consignee and the consignee so notified. EULE 6. Cars for Loading. (a) Cars for loading will be considered placed when such ears are actually placed or held on orders of the consignor. In the latter case the agent must give the consignor written notice of all cars which he has been unabl'e to place because of condition of the private track or because of other conditions attributable to the consignor. This will be considered constructive placement. (b) When empty cars, placed for loading on orders, are not used, demurrage will be charged from the first 7:00 a. m. after placing or tender until released, with no time allowance. EuLE 7. Demurrage Charge. After the expiration of the free time allowed, a charge of $1.00 per car per day, or fraction of a day, will be made until car is released. EULE 8. Claims. No demurrage charges shall be assessed under these rules for the detention of cars through causes named below. If, through error, demurrage charges are assessed or collected under such conditions, they shall be promptly cancelled or refunded by the carrier. Causes. (a) Weather interference. 1. When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in loading or unloading, or impossible to place freight in cars, or to move it from cars, without serious injury to the freight. 2. When shipments are frozen so as to prevent unloading during the prescribed free time, or when, because of high water or snow drifts, it is impossible to get to cars for loading or unloading during the prescribed free time. (b) Bunching. 1. Cars for loading. — When, by reason of delay or irregularity of the carrier in filling orders, cars are bunched and placed for loading in accumulated numbers in excess of daily orders. The shipper shall be allowed such free time for loading as he would have been entitled to had the cars been placed for loading as ordered. 2. Cars for unloading or reeonsignmg. — When, as a direct result of 467 DEMURRAGE OR "CAE SERVICE." [§ 298 the act or neglect of carriers, cars destined for one consignee, at one point, and transported via the same route, are hunched in transit and delivered in accumulated numbers in excess of daily shipments, claim to he presented to the carrier's agent before the expiration of the free time. The consignee shall be allowed such free time as he would have been entitled to had the cars been delivered In accordance with the daily rate of shipment. (c) Demand of overcharge. When the carrier's agent demands the payment of transportation charges in excess of tariff authority. (d) Delayed or improper notice by carrier. NOTE. — When notice has been given in substantial compliance with the requirements as specified by the rules, the consignee shall not thereafter have the right to call in question the sufficiency of such notice unless within twenty-four hours after receiving the same he shall serve upon the delivering carrier a full written statement of his objections to the sufficiency of said note. (e) Railroad errors or omissions. Etile 9. Average Agreement. When a shipper or receiver enters into the following agreement, the charge for detention to cars, provided for by Rule 7, on all cars held for loading or unloading by such shipper or receiver shall be computed on the basis of the average time of detention to all such cars during each calendar month, such average detention to be computed as follows: (a) A credit of one day will be allowed for each car released within the first twenty-four hours of free time. A debit of one day will be charged for each twenty-four hours or fraction thereof that a car is detained beyond the first forty-eight hours of free time. In no case shall more than one day's credit be allowed on any one car, and in no case shall more than seven (7) days' credits be applied in cancellation of debits accruing on any one car. (b) At the end of the calendar month the total number of days credited will be deducted from the total number of days debited, and $1.00 per day charged for the remainder. If the credits equal or exceed the debits no charge will be made for the detention of the cars, and no payment will be made to shippers or receivers on account of such excess of credits, nor shall the credits in excess of the debits of any one month be considered in computing the average detention for another month. (c) Credits earned on cars belonging to one class of equipment shall not be used in offsetting debits accruing on cars belonging to a different class of equipment. For the purpose of applying this pro- vision, cars shall be deemed to consist of two classes: (1) Box cars, including refrigerator cars; (2) freight cars of all other descriptions. (d) A shipper or receiver who elects to take advantage of this average agreement shall not be entitled to cancellation or refund of demurrage charges under Sections a and b of Rule 8. (e) A shipper or receiver who elects to take advantage of this average agreement may be required to give sufficient security to the carrier for the payment of balances against him at the end of each month. § 398] INTEKSTATE TRANSPOETATION. 468 Agreement. To Railroad Company: In accordance with the terms of Rule 9 of the Car Service Association, reading as follows: (Insert Rule 9 in agreement.) I (or we) do expressly agree with the above-named railroad com- pany that I (or we) will make prompt payment of all car service charges accruing in accordance with such rule during the continuance of this agreement on cars held for loading or unloading by me (or us) or on my (or our) account at station of the above- named railroad company. This agreement is to take effect , 19 ... , and to continue until terminated by thirty days' written notice to the railroad company. Approved and accepted by and on behalf of the above-named rail- road company by CHAPTEE XIX. PAYMENT FOR TRANSPORTATION. Section 299. Provisions of the Statute governing Compensation for Transpor- tation. 300. Nothing but Money can Lawfully be given in Payment for Trans- portation. 301. Lien of Carrier for Transportation Charges. 302. Obligation of Carrier to collect its Tariff Rate upon Delivery of Shipment. 303. Undercharges. 304. Repaying Advancements made by the Shipper for Construction of Switch Track. 305. Rates based on Declared Valuation. § 299. Provisions of the Statute governing Compemsation 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, cr 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 traffic 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 469 § 300] INTERSTATE TEAN-SPOETATION. 470 to file and publish the varifts or rates and charges as required by said acts, or strictly to observe such tariffs until changed according to law, shall he 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. §300. Nothing but Money can Lawftdly be given in Pay- ment for Transportation. If A. In Gbneeal. 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 different 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.^ 1 Rule 207, Con. Rul. Bui. No. 4 (Sept. 15, 1906) ; Rule 36, Tariff Circular 16-A. 2 United States v. A. T. & S. F. Ry. Co. (1908), 163 Fed. Rep. 111. -1-71 PAYMENT FOE TRAXSPOETATION. [§ 301 T[ B. Transportation in Exchange for Advertising. In United States v. C. I. & L. Ey. 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. T[ C. Offset of Claim of Shipper against Freight Charges. 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. ° § 301. Lien of Carrier for Transportation Charges. TJ A. Carrier may Eefuse to Deliver the Shipment until Full Tariff Eate is Paid or Tendered. 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. ^-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. § 301] l^'TEHSTATE TEANSPOETATION. 472 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 consignee can become entitled to the goods, only by the payment of such amount.® ff 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.' T[ C. Eight of Caeeiee to Offset Oveechaege on One Ship- ment AGAINST AN UnDEECHAEGE ON ANOTHBE. 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.' See note 68, supra. 71 Delaware, L. & W. R. Co. et ah v. I. C. C. et al. (1908), 166 Fed. Rep. 499. '2 See note 69, supra. §§ 365, 366] INTERSTATE TRANSPORTATION. 538 Co. and Kockford Manufacturers' & Shippers' Association were granted leave of Court to intervene as parties defendant, at the request of the CommiBsionJ^ § 365. Classification of Telegraph, Telephone and Cable Mes- sages Permissible. Section 1 of the Act to Regulate Commerce {as amended June 18, 1910) provides that messages by telegraph, telephone or cable, subject to its provisions, may be classified into day, night, repeated, unrepeated, letter, commercial, press. Gov- ernment, and such other classes as are just and reasonable, and that different rates may be charged for the different classes of messages. § 366. Discrimination in Terminal Facilities and Charges between Commodities. T[A. Difference 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 light- 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 case under legal compulsion to furnish the same terminal facilities for all description of traffic; it is sufficient if reason- able provision is made in this regard, and what is reasonable 73 D. L. & W. R. Co. V. I. C. C. (1909), 169 Fed. Rep. 894. 539 DISCEIMIN-ATIONS AND PEEFEEENCES. [§ 367 in a given instance depends largely upon tlie conditions and surroundings of the particular locality.'* T[ B. Absorption of Terminal Chaege on "Dead" Feeighi AND Assessment of Same 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.''^ §367. Carriers demanding Prepayment of Charges for Transportation. Tf A. Eight of Cakeiee to Eequiee Prepayment feom One Consignee and to Give Ceedit to Anothee. 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. T[ B. Wheee Caerier in Order to Injure and Haeass the Consignee Demands Peepatment of Cpiarges. 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." 74 Palmer Dock Hay & Produce Board of Trade v. P. R. R. Co., 9 I. C. C. R. 61. 75 See note 18, supra. 7« See note 31, supra. } '7 Ibid. § 368] INTERSTATE TEANSPOETATIOK. 540 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 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, while it continued to give credit to other con- signees similarly situated according to the usage and custom.'* Held, These acts did not subject the plaintiff to undue or unreasonable prejudice or disadvantage within the meaning of the Interstate Commerce Act.'° §368. 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.'" f 8 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. 541 DISCRIMINATIONS AND PEEFEEENCES. [§ 369 §369. Discrimination in Distribution of Cars. 1[A. Duty of Caeriee to teeat Shippees alike in Distri- bution OF Cars. 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 must 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 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- 81 Rice R. & W. V. W. N. Y. & P. R. Co. (1890), 2 I. C. R. 298; 4 I. C. C. R. 131; 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. & O. Rd. Co. (1904), 10 I. C. C. R. 226. § 369] INTERSTATE TRANSPORTATION. 542 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 traffic, in any respect whatsoever, or to subject any particular person, company, firm, cor- poration or locality, or any particular description of traflic, 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.'' 83 United States v. B. & 0. R. R. Co. et al. (1908), 165 Fed. Rep. 113, 91 C. C. A. 147. 543 DISCRIMINATIONS AND PREFEKENCES. [§ 369 1[B. Coal Caes 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 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 ears on another portion of its line, where return loads were obtainable and more frequent trips could be made, thus enabling it to serve a larger number of customers with a smaller number of cars.*° If C. Shipper mat not Complain of Seasonable Eule 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.*'' 11 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 84 United States, ex rel. Klngwood 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. 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. 80 United States v. N. & W. Ry. Co. (1901), 109 Fed. Rep. 831. §§ 370-372] INTERSTATE TKANSPORTATION. 544 would be able to issue sentence of commercial death against some of their patrons, while continuing to serve others.*^ §370. 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 time to haul others of a wholly or substantially different class. In either ease, 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.'^ §371. Unjust Discrimination in diverting Traffic 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.'^* § 372. 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 87 Rogers & Co. v. P. & R. Ry. Co., 12 I. C. C. R. 309. 88Carr v. Nor. Pac. Ry. Co. (1901), 9 I. C. C. R. 1; Chappelle v. L. & N. Rd. Co. et al. (1910), 19 I. C. C. R. 56. 88a Colorado Fuel & Iron Co. v. Southern Pacific Co., 6 I. C. R. 488. O-io DISCRIMINATIONS AND PEEFEEENOES. [§ 372 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 cases 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."" 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 two 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 Eegulate 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.'^ 89 Nat'l Hay Assn. v. L. S. & M. S. Ry. Co., 9 I. C. C. R. 264. SON. 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. (1890), 3 I. C. C. R. 435, 2 I. C. R. 715. siCoxe Bros. Co. v. L. V. R. Co. (1891), 4 I. C. C. R. 535; 2 I. I. C. R. 195, 229; '3 I. C. R. 460, affirmed in Schumaclier 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. ssPyle & Sons v. B. T. V. & G. R. Co. (1888), 1 I. C. R. 767; 1 I. C. C. R. 473. Eegulation — 35. §§ 373, 374] INTEKSTATE TRANSPOKTATIOK. 546 § 373. 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 regulation or practice "affecting rates" within the meaning of that phrase as used in Section 15 of the Aet.»= §374. Discrimination in granting Transit Privileges. If A. Carriers must not Discriminate in Allowing Transit Privileges. 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.^" H B. Discrimination 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 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. & 0. Rd. Co., 14 I. C. C. R. 86. 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. 547 DISCEIMIXATIOXS AXD PEEFEEEXCES. [§ 374 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.®^ H C. Discrimination between Localities in the Allowance OP Teansit 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- 97 Douglas & Co. V. C. R. I. & P. Ry. Co. et al. (1909), 16 I. C. C. R. 233. 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. § 375] INTERSTATE TEANSPOETATION. 548 dice to the rights of shippers in another territory served by the same line."" § 375. Discximinatiou between Localities. If A. Peovision of the Statute. The Act to Regulate 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 prejudice or disadvantage in any respect whatsoever.^"" H B. A Locality is Entitled to the Benefit oe its Natueal Advantages. Advantages of location, such as proximity to a navigable 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- 99 Koch V. Pa. Rd. Co. et al. (1905), 10 I. C. C. R. 675. 100 See note 3, supra. 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. 549 DISCKIMINATIONS AND PREFERENCES. [§ 375 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- tified in making rates on grain to the competing towns which destroy the advantage the former is entitled to enjoy.^"^ 1[ C. Discrimination due to Unfavorable Location not TJlTLAWFUL. 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 priraarily 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 charges.^"" 104 Commercial Club, etc., v. C. R. I. & P. Ry. Co. at al., 6 I. C. R. 647. 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. los Quimby et al. v. Me. Cent. Rd. Co. et al. (1908), 13 I. C. C. R. 246. § 375] INTERSTATE TRANSPORTATION. 550 1[ D. Carriers may not Foster Industries on their Own Lines to Prejudice of Others. It is the duty of a eommon 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 eommon 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,^"^ i. e., a common carrier can not impose an unreasonable rate because of the origin of the traffic.^"* ][E. Carriers may not Create Artificial 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 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 trafSc^o^ 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 lOT Standard Lime & Stone Co. et al. v. Cumberland Valley Rd. Co. et al. (1909), 15 I. C. C. R. 620; decision in Waxelbaum & Co. v. A. C. L. R. R. Co. (1907), 12 I. C. C. R. 183 and Cardiff Coal Co. v. C. M. & St. P. Ry. Co. et al. (1908), 13 I. C. C. R. 460 adhered to. 107a Acme Cement Plaster Co. v. Chicago Great Western Ry. Co. et al. (1910), 18 I. C. C. R. 19. 108 Savannah Bureau of Freight and Transportation et al. v. L. & N. Rd. Co. et al., 8 I. C. C. R. 377; order of Commission enforced, I. 0. C. V. L. & N. Rd. Co. et al., 118 Fed. Rep. 613. 551 DISCRIMINATIONS AND PEEFEEENCES. [§ 375 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 traffic 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 of one section of the country is assigned to one market and the product of another section of the country to another market.^^^ UP. Caeeiees mat not Favoe a Laegb Town against a Smallee 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.^^^ 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. 111 Re Export Rates, etc., 8 I. C. C. R. 185. 112 See note 101, supra, lis See note 101, supra. § 375] INTBKSTATE TRANSPORTATION. 553 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.^^* T[H. Long-and-Short-Haul Clause and Belief from Opera- tion thereof. See Chapter 8, ante, for full consideration. 1[ I. Competition not necessarily a Justification in the Establishment of Preferential Eates. 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 Bate Case,^^^ and the Troy Oase,^^^ 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- 11* Black Mountain Coal & Land Co. et al. v. Southern Ry. Co. et al., 15 I. C. C. R. 286 (1909). 116 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. lis Troy case, I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144; 40 L. ed. 414, 18 Sup. Ct. 45. 553 DISCRIMINATIONS AND PREFERENCES. [§ 375 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.^^' T[ J. ' Discrimination between Localities in the Assessment OE Terminal Charges. Eailroad 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 jendered over the same line and were therefore not "like" within the meaning of that section.^^' If 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 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 Fall Kiver, 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.^" 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. 118 See note 18. supra. 118 Phillips V. N. Y. & Boston Despatch Express Co., 15 I. C. C. R. 631. See also Strauss v. American Express Co. et al. (1910), 19 I. C. C. R. 112. §§ 376-379] INTEESTATE TEANSPOETATION. 554 §376. Discrimination between Connecting Carriers in fur- nishing Facilities for Interchange of Traffic. See Section 669, post. §377. Refusal 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 trafSc 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. ^^^ §378. 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, 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.^^"- §379. Discrimination in Fares for Transportation of Passengers. 1[ A. Position of Passengee not Good Geounds foe DiSCEIMINATION. The means, occupation or purpose of parties are not proper considerations upon which to found discriminations among them in the sale of passenger tickets.^^^ 120 Royal Brg. Co. v. Adams Express Co. et al., 15 I. C. C. R. 255. 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. 555 DISCEIMINATIONS AND PEEFEEENCES. [§ 379 1[ B. EsAOTioN OS Additional Sum foe Failure of Passenger TO Peoduce Ticket. It was a regulation of the respondent company published on its tariff schedules filed and posted as required by the Act to Eegulate 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.^^' T[ C. Eound-Teip Faee not Unjustly Disceiminatoet against Highee One-Wat Paee. 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- 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.^^° 1[ D. Special Eates on Immigeation Teaffic. 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.^^'' 123 Sidman v. R. & D. R. Co. (1890), 3 I. C. R. 512; 2 I. C. R. 766. 124 See note 26, supra. 125 See note 23, supra. 126 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. § 379] INTERSTATE TEANSPOETATION. 556 II E. DlSCKIMINATION BETWEEN MINISTERS OF DIFFERENT DE- NOMINATIONS IN Granting Eeduced Pares. 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.^^* T[ P. Party-Eate Tickets not Unjustly Discriminatory AGAINST Single Passenger Pares. See Section 564, post. T[ 6. 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 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 3 28 See note 25, supra. 129 Re Party-Rate Tickets, 12 I. C. C. R. 95 (1907). 557 DISCKIMIXATIOXS AND PEEFEEENCES. [§ 379 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.^^" Eailway 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 which produces an inequality of conditions and a change of circumstances justifies an inequality of charge.^''^ II I. Legality of Mileage, Excuesion anep Commutation Passengee Tickets. See Section 562, post. If J. Issuance of Excuesion Tickets on One Occasion and Refusal to Issue on Similae 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- 130 See note 25, supra. 131 See note 26, supra. i32Cator V. Southern Pacific Co. et al. (1893), 6 I. C. C. R. 113, 4 I. C. R. 397. § 380] INTERSTATE TBANSPOKTATION. 558 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 eases where this privilege has been plainly abused that the Commission would be justified in interfering."' Tl K. Excursion or Commutation tickets versus 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.^'* § 380. Ticket Brokerage as a means of Unjust Discrimination and Undue Preference. K A. Sale of Cut-Eate Passenger Tickets Eesults in a Violation of the Act to Eegulatb Commerce. When the restriptions 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 efScaeious. This must follow, since, if the return portion of the round- trip ticket be used by one not entitled to the ticket, and who 133 Weber Club & Intermountain Fair Ass'n. v. Oregon Short Line Rd. Co. et al. (1909), 17 I. C. C. R. 212. 134 Associated Wliolesale Grocers of St. Louis v. Mo. Pac. R. Co. (1887), 1 I. C. R. 393; 1 I. C. C. R. 156. 559 DISCKIMINATIONS AND PEEFEEENCES. [§ 380 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 .^^° 11 B. Actionable Wrong Committed by Peeson Caeeying on Business op Ticket Brokbeage. 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- 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 nontransfer- 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 have expressly declared their intention of continuing so to do, a Court of equity has power to grant relief by injunction.^^* ][ C. PowEE OF Pedeeal Couet to Issue Injunction Ee- STEAiNiNG Ticket Scalpers eeom Dealing in the FuTUEE in Cut-Eatb 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 135 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 TJ. S. 1, 38 L. ed. 55, 14 Sup. Ct. 240. 13'? See note 135, supra. 138 Ibid. § 381] INTERSTATE TRANSPORTATION. 560 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 naiture 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."® § 381. 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 Railroad. On August 31, 1906, the complainant purchased a ticket entitling her to a first-class passage from Chattanooga, Tenn., to Dalton, Ga., 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 flagmain that she was in the wrong car and was requested to go to that portion of another ear 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 car 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- 139 See note 135, supra. 1*0 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. 561 DISCIUMlXxVTIONS AND PREFERENCES. [§ 381 structed as follows: A partition placed in the middle of the car 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 separg,te 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. 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."^ 1" Hall V. DeCuir (1877), 95 U. S. 485; 24 L. ed. 547; L. N. O. & T. Ry. V. Mississippi (1889), 131 U. S. 587, 33 L. ed. 784, 2 I. C. R. 801, 10 Sup. Ct. Rep. 348; Plessy v. Ferguson (1896), 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; C. & O. Ry. v. Kentucky (1899), 179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct. Rep. 101; J. Alexander Chiles v. C. & O. Ry. Co. decided by Supreme Court May 21, 1910, aflarming 125 Ky. 299, 101 S. W. 386. Eegulation — 36. § 381] INTERSTATE TRANSPOETATION. 563 In the case of Councill v. Western & Atlantic B. R. 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 Railroad 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 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- 142 Councill V. Western & Atlantic R. R. Co. (1887), 1 I. C. C. R. 339; 1 I. C. R. 638. 143 Heard v. Georgia Rd. Co., 1 I. C. C. R. 428; 1 I. C. R. 719. 563 DISCRIMINATIONS AND PREFERENCES. [§§ 382-384 modations shall be proTided for colored passengers paying the same fare. §382. 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 aceommodations 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.^^* §383. Eight 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. ^*^ §384. Jurisdiction of Interstate Commerce Commission over Unjust Discriminations and Undue Preferences. TJA. Provisions of the Statute. In enacting the Interstate Commerce Acts, Congress con- 144 Wylie V. Northern Pac. Ry. Co. et al. (1905), 11 I. C. C. R. 145. 145 Rule 45, Con. Rul. Bui. No. 4 (March 3, 1908). § 384] INTERSTATE TEANSPOETATION. 564 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 to Regulate Commerce {as amended June 18, 1910) read as follows : "That whenever, after full hearing upon a complaint made as provided in section thirteen of this Act, or after full hear- ing under an order for investigation and hearing made by the Commission on its own initiative (either in extension of any pending complaint or without any complaint whatever), the Commission shall be of opinion that any individual or joint rates or charges whatsoever demanded, charged, or col- lected by any common carrier or carriers subject to the pro- visions of this Act for the transportation of persons or prop- erty or for the transmission of messages by telegraph or tele- phone as defined in the first section of this Act, or that any individual or joint classifications, regulations or practices whatsoever of such carrier or carriers subject to the provisions of this Act are unjust or unreasonable or unjustly discrimi- natory, or unduly preferential or prejudicial or otherwise in violation of any of the provisions of this Act, the Commission is hereby authorized and empowered to determine and pre- scribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged, and what individual or joint classification, regulation or practice is just, fair and reasonable, to be thereafter followed; and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafter publish, demand or collect any rate or charge for such transportation or transmission in excess of the maximum rate or charge so prescribed, and shall adopt the classification and shall conform to and ob- serve the regulation or practice so prescribed." 146 See note 33^ supra. 565 DISCEIMINATIONS AND PREFERENCES. [§§ 385-388 TTB. JUEISDICTION OVER TJnJDST DiSCEIMISTATION IN DlSTEI- BUTION OP CaKS. While the Act to Regulate Commerce contains no provision which expressly or by proper implication gives the Commission jurisdiction 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 ears 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.^*' For more detailed discussion see Section 172, ante. §385. Reparation for Damages account Unjust Discrimination. See Section ^26, post. §386. Granting of Rebate or Concessioin as an Unjust Discrimination. See "Rebates and Concessions," Chapter 27, post. § 387. Penalty of Carrier for Unjust Discrimination and Undue or Unreasonable Preference or Advantage. See Section 760, post. §388. Penalty of Party receiving Favors from Carriers. See Section 761, post. 147 See note 82, supra. 148 See note 87, supra. 148 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 T. C. C. R. 438. OHAPTEE XXVn. REBATES AND CONCESSIONS. Section 389. Unlawful to offer, grant, give, solicit, accept or receive any Rebate from Published Rate or other Concession or Discrimina- tion. 390. Meaning of the Term "Rate" as used in the Statute against Rebat- ing. 391. Method of Rebating Immaterial. 392. Departure from Published Rate is the Essence of the Offense. 393. Declaring a False Valuation, False Billing and False Classifica- tion, Violation of the Statute. 394. Allowances to Terminal Railroads as a Medium of Rebating. 395. Allowances to "Tap Lines." 396. Allov/ances to Shippers for Services rendered or Instrumentalities furnished must not exceed the Actual Cost. 397. Allowance for Use of Private Track of Shipper as a Medium of Rebating. 398. Cancellation of Storage Charges as a Medium of Rebating. 399. Giving of Commissions as a Medium of Rebating. 400. Repayment by Carrier on account of Switch Track. 401. Joint Rebate not Essential to the Commission of the Offense. 402. Relief of Agent does not Relieve Carrier. 403. Refund on account of Full-Fare Transportation used by a Boy under 12 years of age not Permissible. 404. Penalty for offering, granting, giving, soliciting, accepting or Receiving any Rebate from Published Rates or other Concessions. §389. 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 Regulate Commerce and Acts amendatory there- 566 567 REBATES ASTD CONCESSIOKS. , [§ 390 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, rehate, 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. §390. 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 Elkins Act, Section 1. § 391] INTEKSXATB TEANSPOETATION. 568 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 cars of the stable- ear company, made payments of money to shippers using its ears. 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 trajisportation 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.' §391. 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. & O. 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. 6 United States v. Vacuum Oil Co. (1907), 153 Fed. Rep. 598; 82 C. C. A. 586. 569 REBATES AND CONCESSIONS. [§§392,393 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.'^ § 392. 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." §393. 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 charge 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, 7 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. s 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. § 394] IN"TEESTATE TEANSPORTATION. 570 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 iinderbilling 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.^* § 394. Allowances to Teorminal 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 i/^ 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. 1* Sligo Iron & Stone Co. v. A. T. & S. P. Ry. Co. (1909), 17 I. C. C. R. 139. 571 REBATES AND CONCESSIONS. [§ 394 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. E. 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 15 Re Division, of Joint Rates and other allowances to Terminal Railroads (1905), 10 I. C. C. R. 661. 18 Re Transportation of Salt from Hutchinson, Kas. (1904), 10 I. C. C. R. 1. § 394] INTERSTATE TRANSPORTATION. 572 against a former maximum switching charge of $3.50 per car. The Commission held. 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 afEord 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 If Re Division of Joint Rates and other allowances to Terminal Railroads (1904), 10 I. C. C. R. 385. 573 REBATES AND CONCESSIONS. [§ 395 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 con- trolled by a shipper, for the purpose of obtaining the traffic 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. While 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 Kegulate 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.^' §395. Allowances to "Tap Lines." In the case of Central Yellow Pine Association v. V., 8. & P. Bd. 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. Hd. Co. et al. (1904), 10 I. C. C. R. 505. §§ 396, 397] INTEESTATE TRANSPORTATION. 574: 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. §396. 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.^" §397. 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. 575 EEBATES AND CONCESSIONS. [§§398,399 a belt line from Kansas City, Kans., to Kansas City, Mo., con- necting with the Chicago & Alton and with a private track of the Schwarzschild & 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- schild & 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 Schwarzschild & Sulzberger Co. $1 per car. After 1901, at the request of the Schwarzschild & Sulzberger Co., the Chicago & Alton had paid the Belt Co. $3 per car, and the Schwarzschild & Sulzberger Co. $1 per car. The defendants contended that the payment was for the use of the Schwarz- schild & 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. ^^ §398. Cancellation of Storage 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 Blkins Law.^^ § 399. Giving of Commissions as a Medium for Rebating. T[A. Ebfunds or Commissions as a Condition of thh Sale OF 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. §§ 400, 401] INTERSTATE TEANSPOKTATION. 576 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.^^ U B. Commissions on Impokt Traffic. 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.^* 11 C. Division of Commission between Caeeiee's Agent AND Shippee. 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.^° § 400. Repayment by Carrier on account of Switcli 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.^" § 401. Joint Rebate not Essential to the Commissicn of the Offense. 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. 28 Rule 110, Con. Rul. Bui. No. 3 (Nov. 10, 1908). 577 REBATES AND CONCESSIONS. [§§ 402-404 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.^'' § 402. Relief of Agfent does not Relieve 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.^* § 403. 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.^' § 404. 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). Eegtjlation — 37. CHAPTER XXVIII. DAMAGES AND REPARATION. Section 405. Jurisdiction ot Interstate Commerce Commission to Award Repar- ation for Damages. 406. Act to Regulate Commerce contemplates Pecuniary Reparation. 407. Reparation limited to Damages arising from Violation of tlie Act. 408. Reparation for Assessment of Charges in Excess of Published Schedule. 409. Reparation for Assessment of Unreasonable Rates. 410. Overcharge account of Excess Weight. 411. Reparation for Damages accruing from Violation of Long-and- Short-Haul Clause. 412. 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. 413. Commission will not order Reparation for the Purpose of Equal- izing Rates. 414. Establishment of Through Route for Purpose of Awarding Repar- ation. 415. Claim for Damages cannot be based on an Unlawful Privilege. 416. Refund of Overcharge on Shipment to Adjacent Foreign Country. 417. Refund where there is a Clerical Error in the Tariff Resulting in Higher Rate. 418. Where Rates have been voluntarily reduced Commission will not Award Reparation as a matter of Course. 419. Commission will not order Reparation where Its Effect will be to make a Reconsigning Privilege Retroactive. 420. Shipper cannot recover on Contract Rate Different from Published Rate. 421. Damages accruing account Detention of Goods until Published Rate is Paid by Consignee. 422. Where Damages result to the Shipper on account of Failure of the Carrier to Post Rate Schedules. 423. Where Damages result to the Shipper account Failure of Initial Carrier to secure Concurrence of Connecting Line. 424. Liability of Carriers for misrouting Shipments and Reparation therefor. 578 579 DAMAGES AND EEPAEATION. [§ 40£ 425. Reparation for Failure of Carrier to perform Expedited Service as Agreed in Consideration of Increased Rate. 426. Reparation for Damages account Unjust Discrimination. 427. Accrued Claims not invalidated by Subsequent Cancellation of Absorption Rule. 428. Damages to Fruit by delayed Notice of Arrival at Destination. 429. Remote or Speculative Damages. 430. A Passenger Wrongfully deprived of Benefit of Return Coupon of a Round-Trip Excursion Ticket May Have Reparation. 431. Responsibility of Carrier for Failure to furnish Proper Cars to Which Rates Apply. 432. Where Freight ■ is unloaded by Carrier's Agent in Depot by Mis- take Instead of Switching Car to Consignee's Siding. 433. Liability of Receiving Carrier for Loss or Damage on Interstate Traffic. 434. Assignability of Overcharge Claims. 435. Benefit of Reparation Order extends to All Like Shipments. 436. Delivering Carrier must investigate before paying Claims. 437. Adjustment of Claims on Presentation. 438. Liability of Members of Traffic Association for Unreasonable Rates Charged. 439. Parties entitled to Reparation. 440. Limitation of Actions before the Commission. 441. Parties to Action for Damages. 442. Rules of Procedure before the Commission. 443. Order of Commission awarding Reparation. 444. Change of Rate while Shipment was on the Ocean. 445. Remedy for Wrongs which occurred prior to the Act. 446. Special Reparation on Informal Complaints. 447. Penalty for Shipper obtaining or attempting to obtain Payment for Damages, Allowance or Refund by False Representation. § 405. Jurisdiction of Interstate Commerce Commission to Award Reparation for Damages. if a. jueisdiction' ik grbltbral of commissioit to awakd Damages. In the case of Washer Grain Co. v. M. P. By. 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 1 Washer Grain Co. v. Mo. Pac. Ry. Co. (January 6, 1909), 15 I. C. C. R. 147. § 405] INTEKSTATE TRANSPOBTATION. 580 were unable to avoid an administrative consideration of the subject and made the following observations: "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 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 ease.' "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, 581 DAMAGES AND EEPAEATION. [§ 405 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 inevitably follows 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 under Section 10 the Commission, as an adminis- trative body having g-wast-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.' 2T. & 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. Civ. App. 366, 85 S. W. 1052. § 405] INTERSTATE TRANSPORTATION. 583 ' ' 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 vei'y 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: " 'AH 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 ihe 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 583 DAMAGES AND EEPAKATION. [§ 405 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 plaintiffs and against such joint defendants * * * Jn ease 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 cases 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 § 405] INTERSTATE TRANSPORTATION. 584 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 case 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- effective. 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 U ed. 456, 28 Sup. Ct. 268. 585 DAMAGES AND EEPAEATION. [§ 405 "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. {Sec. 10 of the Act, supra.) "The leading case of the jurisdiction of the Commission to award damages is Texas & Pacific Ry. 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. § 405] INTEESTATE TRANSPOKTATION. 586 Act to Regulate Commerce was intended to afford effective means for redressing the wrongs resulting from unjust discrim- ination and undue preference is undoubted. * * * _A.nd it 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 587 DAMAGES AND EEPAHATION. [§ 405 established schedule, because the rates fixed therein arfe un- reasonable. ' "While the Abilene Case, supra, settles the primary jurisdic- tion of the Commission to determine the reasonableness or 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 et 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 Eeg- 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." However, in the case of Joynes v. Pennsylvania Railroad Co.,^^ which was decided about six months after the Washer Grain Co. case, supra, the Commission, with three of its members dis- senting, disclaimed any authority to award general damages and held t"hat its power to award damages was limited to what was termed transportation or rate damages. In that ease the 5 Railroad Commission of Ohio v. Hocking Valley Ry. Co., 12 I. C. C. R. 398. 5a Joynes v. Pennsylvania Rd. Co. (June 29, 1909), 17 I. C. C. R. 361; see important decision by Judge McPherson in Morrisdale Coal Co. V. P. R. R. Co. (1910), 176 Fed. Rep. 748. § 405] INTEKSTATE TEANSPOETATION. 588 petitioner, a dealer in fruits and general produce, charged dis- crimination, in that the defendant persistently delayed his shipments of fruit in Pittsburg at the Fifty-fourth Street yards where the cars were not accessible to teams and could not be unloaded by him, while at the same time ears of other shippers were promptly placed in position at the unloading platform and were thus given a preferred use of the defendant's term- inal facilities, and that by reason of said delay and discrimi- nation petitioner suffered loss through the decay of the fruit and otherwise in the sum of $30,497.70, for which amount he claimed reparation. The complaint was accordingly dismissed for want of jurisdiction. This decision is at direct variance with the decision in the Washer Grain Co. case, and it cer- tainly appears that the Commission is unnecessarily limiting its jurisdiction in view of the broad provisions contained in the statute. The writer is therefore constrained to here re- produce the dissenting opinion in the Joynes case, which seems to be more consonant with the terms and spirit of the statute. Lane, Commissioner, in dissenting stated: "The decision of the majority is, as I view it, a surrender of jurisdiction clearly conferred, and thus far exercised with- out challenge. It is conceded that the facts alleged in this complaint would, if found true, constitute such undue dis- crimination as is forbidden by the act. It is further admitted that the Commission has authority to order the carrier to cease and desist from such discrimination in the future. But the power to redress the past injury by an award of reparation is denied. I can not concur in this conclusion, and shall en- deavor to state, as briefly as I may, the reasons for my dissent. "Section 3 of the act contains a sweeping prohibition against 'any undue or unreasonable prejudice or disadvan- tage in any respect whatever.' This is broad enough to cover every form of discrimination. The statute would be peculiarly defective if a carrier could with impunity subject a shipper to all manner of discrimination in the delivery of his perishable freight. I can conceive of no form of discrimination which would be more disastrous to a shipper than persistent delay in delivering his perishable freight, while like shipments of 589 DAMAGES AND EEPAEATION. [§ 405 bis competitors are placed promptly upon arrival at destina- tion. Beyond all doubt section 3 applies to just such discrimi- nation as is alleged in this proceeding. The case of United States ex rel. Morris & Co. v. D., L. & W. R. B. Co., 40 Fed. Rep., 101, is conclusive upon this point. The court says (p. 103): The latter (section 3) is compreliensive enough, standing alone, to include every form of unjust discrimination, not only in rates, but also in the conveniences and facilities supplied to shippers in any of the details of the carrying service, and such is the judicial con- struction in England of the term 'undue or unreasonable preference or advantage,' as used in the English 'Railway and canal traffic act' (17 & 18 Vict, c. 31, sec. 2). "The jurisdiction of the Commission is coextensive with the mandates and prohibitions of the act. Section 3 has not been changed by the Hepburn law, and sections 8 and 9 have like- wise been retained in their entirety. Section 15 has been superseded, but the powers which it conferred are more than covered by sections 15 and 16 of the amended law. The law clearly contemplates that a shipper who has been the victim of discriminatory practices on the part of a carrier shall have a twofold remedy before this Commission: (1) An order upon the carrier to cease and desist from the unlawful prac- tices in the future. (2) Redress for the past injury by an award of reparation. By the decision of the Commission here- in, the second of these remedies is read out of the law. The case of T. & P. By. Co. v. Abilene Cotton Oil Co., 204 U. S., 426, is cited, but in my judgment that ease is in no respect a precedent for the action now taken. Conceding that the Su- preme Court found it necessary to read certain language out of the act in order to reach its decision in the Abilene case, that course was necessary in order to give consistency and vitality to the law. It is only too apparent, as the court says, that if the federal courts as well as the Commission were to entertain, in the first instance, complaints predicated upon the unreasonableness of established rates, conflicting de- cisions would inevitably ensue. We owe much to the Su- preme Court for this broad construction of the law. It is clear that a contrary decision would have led to infinite mis- § 405] INTERSTATE TKANSPOBTATION". 590 chief. But it is hardly necessary to point out that no possible conflict could arise from the concurrent authority of the Com- mission and the courts to award damages for unlawful dis- crimination in furnishing facilities of transportation. The cases are in no respect parallel. The following comprehensive statement of the Commission's powers is found in the opin- ion of the court in the Abilene case: Power was conferred upon the Commission to liear complaints concerning violations of the act, to investigate the same, and, if the complaint were well founded, to direct not only the making of repara- tion to injured persons, but to order the carrier to desist from such violation in the future. * * * That the act to regulate commerce was intended to afford an effective means for redressing wrongs re- sulting from unjust discrimination and undue preference is undoubted. Indeed, it is not open to controversy that to provide for these subjects was among the principal purposes of the act. "This would seem to be a definite recognition of our au- thority to award damages for any violation of the aet. "In numerous cases the Commission has asserted its power to award damages for discrimination in furnishing facilities for transportation and in effecting delivery of freight. One of the earliest of these is the ease of Macloon v. C. & N. W. By. Co., 5 I. C. C. Kep., 84. The defendant had refused to switch cars from its tracks to the tracks upon which the complain- ant's plant was located unless he promised in advance to pay any demurrage charges which might be assessed, regardless of their legality. This switching service was performed for other shippers without exacting any such promise. It was held that the case came under the prohibition of the third section, which forbids the subjection of any person to any un- due or unreasonable prejudice or disadvantage in any respect whatever. It was held, further, that the plaintiff was entitled to reparation, but, the proof of damages being insufficient, the case was held open pending notice of adjustment by the par- ties themselves. "In Eaton v. C, H. & D. By. Co., 11 I. C. C. Eep., 619, the Commission found that the defendant had subjected the com- plainant to unjust discrimination in furnishing cars for ship- ment of hay and grain. Eeparation was awarded in the 591 DAMAGES AXD REPARATION. [§ 405 amount of $200, the business loss which complainant had suf- fered by reason of the discrimination. "In Rogers & Co. v. P. & R. Ry. Co., 12 I. C. C. Rep., 308, it appeared that the defendant had declared an embargo on complainant's shipments of hay and straw. Pursuant to this embargo, seven cars of hay consigned to complainant were re- fused delivery, and the loss on these shipments, due prin- cipally to a falling market, was $190.70. The Commission held that, on proper showing that the 'shipments were interstate in character, reparation would be awarded in the amount named. "In Eichenberg v. 8. P. Co., 14 I. C. C. Rep., 250, the Com- mission condemned as unlawful certain discriminations in the furnishing of terminal facilities at Galveston, Tex., the case being held open for further evidence, looking to an award of reparation. "In the case of the Glade Coal Co. v. B. & 0. R. R. Co., 10 I. C. C. Rep., 226, and Paxton Tie Co. v. D. S. R. R. Co., 10 I. C. C. Rep., 422, reparation was awarded for damages result- ing from discrimination in the furnishing of cars. (See also Phelps & Co. V. T. & P. Ry. Co., 6 I. C. C. Rep., 36 ; American Warehousemen's Asso. v. I. C. R. R. Co., 1 I. C. C. Rep., 556; St. Louis Hay & Grain Co. v. C, B. <& Q. R. R. Co., 11 I. C. C. Rep., 83 ; Miner v. N. Y., N. H. & H. R. R. Co., 11 1. C. C. Rep., 422.) "It is suggested that comparatively few complaints involv- ing damages of the character in question have been filed with the Commission, but manifestly this has no bearing upon the scope of the authority which the statute confers. It is urged that the exercise of the power to award reparation in such cases would greatly multiply proceedings before the Commis- sion, but this, I again submit, does not justify a disclaimer of jurisdiction. The difficulty of estimating damages is likewise without persuasive force. "I can not agree with the holding of the majority that the act 'gives us a reasonable discretion in entertaining and re- fusing to entertain complaints that are presented to us.' It is my understanding that whenever a complaint is filed pre- § 405] INTERSTATE TBANSPOETATION. 593 senting a violation of the act, this Commission can not decline to take jurisdiction. In any event, a shipper whose business had been ruined by railroad discrimination would find it diffi- cult to understand why the Commission, in the exercise of its discretion, should yield up a part of its salutary power and render itself impotent to redress his wrongs." Commissioners Clements and Prouty united in the dissent. The author is of the opinion that the entire question at issue resolves itself into a connected reading of the various pro- visions of the statute. Section 3 of the Act, which forbids any undue or unreason- able preference or advantage, reads as follows : That it 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, cor- poration, 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 description of traffic, to any undue or unreasonable prejudice or disadvantage in any re- spect whatsoever. Section 8 of the Act establishes the liability of common car- riers for damages accruing from violation of the Act, and reads as follows: That in case any common carrier subject to the 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 carrier shall be liable to the person or persons injured thereby for the full amount 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 col- lected as part of the costs in the case. Section 9 of the Act gives the shipper a right of action before the Commission, for violations of that statute, which reads : That any person or persons claiming to be damaged by any com- mon 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 593 DAMAGES AND EEPAEATION. [§ 405 elect whicli one of the two methods of procedure herein provided for he or they will adopt. The words, "as hereinafter provided for,'' which appear in Section 9 refer to the manner of making complaints to the Commission, which procedure is provided for in Section 13 of the Act. Section 13 is given following with the new matter that was added by the amendment of June 18, 1910, shown in italic : That any person, firm, corporation, or company, or association, or any mercantile, agricultural, or manufacturing society or other or- ganization, or any body politic or municipal corporation, or any com- mon carrier, complaining of anything done or omitted to be done by any common carrier subject to the provisions of this Act, in contra- vention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint 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 comm.on carrier within the time specified shall make reparation for the injury al- leged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers 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 and vyith the same authority and poicers, Investigate ' any complaint forwarded by the railroad commissioner or railroad commission of any State or Territory at the request of such commissioner or commission, and the Interstate Commerce Commission shall liave full authority and power at amy time to institute an inquiry on its own motion, in any case and as to any m,at- ter or thing concerning which a complaint is authorised to ie made, to or 'before said Gommiasion by any provision of thds Act, or concerning which any question may arise under any of the provisions of this Act, or re- lating to the enforcement of any of the provisions of this Act. And the said Commission shall have the sa/me powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complaint or petition under any of the provisions of this Act, including the pouyer to make and enforce an/y order or orders in the case, or relating to the matter or thing concerning which the inquiry is had excepting orders for the payment of money. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. Section 16 of the Act gives the Commission the authority to award the damages claimed under Section 13 and also pro- vides the method for the enforcement of such awards. This section reads as follows: Eegulation — 38. § 405] INTERSTATE TEANSPOBTATION. 594 That If, after hearing on a complaint made as provided in section thirteen of this Act, tne 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 before a day named. If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the cir- cuit court of the United States, for the district in which he resides or in which is located the principal operating oflice of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a petition set- ting forth briefly the causes for which he' claims damages, and the order of the Commission in the premises. Such suit in the circuit cou/rt of the United States shall proceed in all respects like all other civil suits for damages, except that on the trial of such suit the find- ings 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 proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable at- torney'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 or State court within one year from the date of the order, and not after. In such suits all parties in whose favor the Commission may have made an award of 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 main- tained 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 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 judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff. 1[ b. jueisdiotion of commission over claims for loss of Profit caused by Takdt Delivery of Property; also Loss OF 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 595 DAMAGES AND EEPAKATION. [§ 405 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 8 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). § 4U5] INTERSTATE TKANSPOBTATION. 596 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 under 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 jurisdiction 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.^ 7 Blanton Duncan v. A. T. & S. F. Ry. Co. et al. (1893), 6 I. C. R. 85, 4 I. C. R. 385, predicated on Loud v. S. C. Ry. Co., 4 I. C. R. 205. 597 DAMAGES AND REPARATION. [§ 405 11 C. Jurisdiction op Commission to Award Eeparation for Damages accruing on Shipments that moved under Published Tariff Eates that were Subsequently declared to be Unjust and Unreasonable. In the case of Arkansas Fuel Co. v. C, M. & St. P. Ry. 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 rea;sonable rates for the future, and does not authorize the Commission t6 change a rate upon which a shipment has already moved. In Poor Grain Go. v. G., B. & Q. R. R. Go.,^ 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 trafSc 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 Goomes v. G., M. & 8t. P- Ry. Go.^° 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 s 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. 0. 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. JoCoomes 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. § 405] INTEKSTATE TRANSPORTATION. 598 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. 599 DAMAGES AND EEPARATION. [§ 405 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 § 405] INTEESTATE TRANSPORTATION. 600 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. Aiilene 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- tained 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.^* 1j D. Authority of Commission to Award Eeparation in A Case involving Collection of a Eate Higher than THAT NAMED IN THE PUBLISHED TARIFF. In Laning-H arris Coal & Grain Co. v. St. L. & 8. F. R. R. 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. 1* Ibid. 15 Laning-Harris Coal & Grain Co. v. St. L. & S. F. R. R. Co. (1909), 15 I. C. C. R. 37. 601 DAMAGES AND EBPAEATION. [§ 405 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." 1[ B. Pkimakt Jurisdiction of the Commission over Ac- tions FOR EePAEATION PREDICATED UPON THE EeASON- ABLENBSS OE 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 Interstate Commerce Commis- sion 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 originally to maintain actions to ob- tain 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 § 405] INTERSTATE TEANSPOETATION. 603 remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies," can- not be construed as continuing in shippers a common-law right the continued existence of which would be absolutely incon- sistent 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 its efficacy and render its provisions nugatory. "^^ Tf F. JUEISDICTION OF COMMISSION TO AwARD RePAEATION FOR MiSEOUTING TRAFFIC. In the case of Woodward & Dicherson v. L. & N. Bd. Co. et al.,^^ the complainant shipped two carloads of crude phos- phate rock from St. Blaise, Tenn., to Riddlesburg, 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 case 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 Regulate Commerce has been violated, as the power of the Commission to award damages is limited to such cases as arise out of violation of the Act. Wherein, therefore, 16 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. Civ. App. 366; 85 S. W. 1052; cited in Southern Ry. Co. v. Tift (1907), 206 U. S. 428, 51 L. ed. 1124, 27 Sup. Ct. 709. 17 Ibid. 18 Woodward & Dickerson v. L. & N. R. R. Co. (1909), 15 I. C. C. R. 170, sustained by Judge Hollister of United States Circuit Court for the Sixth Circuit in Woodward & Dickerson v. L. & N. R. R. Co. (1910). 603 DAMAGES AND EEPAEATION. [§ 405 does the law provide that carriers who accept shipments must carry them via any specific route and be responsible for dam- 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 19 It should be noted that the amendment of June 18, 1910, gives the shipper the right to route his freight and makes it obligatory upon the carriers to observe such routing. 20 B. & O. R. R. V. Hamburger (1907), 155 Fed. Rep. 849. § 405] INTEESTATE TRANSPOETATIOjST. 604 to gravely misconstrue the purport of the Act to Regulate Commerce. This statute commands that carriers shall provide for certain transportation and shall make public the rates 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 Louisville & 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 difference 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."^ If G. Shrinkage 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.^^ ^ H. Reparation on Intrastate Traffic. The Commission has no authority to award reparation on shipments that moved wholly between two points in the same State.^' Complainant shipped three carloads of canned peaches from 21 Larrowe Milling Co. v. C. & N. W. Ry. Co. et al. (1910), 17 i. C. C. R. 443. 22 Carstens 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. (1893), 3 I. C. R. 256; 4 I. C. R. 385, 6 I. C. C. R. 85. 23 Rogers & Co. v. P. & R. Ry. Co. (1907), 12 I. C. C. R. 309. 605 DAMAGES AND KEPAExVTION. [§ 405 Oakhurst, Ga., to Marietta, Ga.,'and from thence rebilled one car to Lexington, Ky., and two cars to Cincinnati, Ohio. Ship- per claimed the benefit of the lower through rates from Oak- hurst to the rebilled destination and asked reparation. The Commission denied the claim inasmuch as the movement from Oakhurst to Marietta was an intrastate movement.^'* 1[ I. Action for Trespass. The Commission has no authority to consider a claim in the nature of an action of trespass.^* 1[J. Jurisdiction of Commission to Award Ebpaeation foe OVEEGHAEGE DUE TO EeEOR IN WEIGHING. The Commission has authority to award reparation for un- just charges on shipments due to error in weighing.^^ If K. Jurisdiction of Commission to Award Eepakation for Damages Eesulting feom Discrimination in Pue- NISHING TeANSPOETATION 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.^^ Where an alleged unlawful discrimination in the distribu- tion of coal cars in violation of Interstate Commerce Act, had been practiced by defendant railroad company, resulting in injury to plaintiff, for which it was entitled to damages, such discrimination having been applicable to a class of shippers and not to complainant alone, the Interstate Commerce Com- 23aDobbs V. L. & N. Rd. Co. (1910), 18 I. C. C. R. 210, citing Gulf, C. & S. F. Ry. Co. V. Texas, 204 U. S. 403. 21 Council v. W. & A. Rd. Co. (1887), 1 I. 0. C. R. 339; 1 I. C. R. 638. 25 Leonard v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 538. 20 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. § 405] INTBESTATE TRANSPOETATION. 606 mission had exclusive original jurisdiction to afford complain- ant relief, it not being entitled to sue in the first instance in an action for alleged damages sustained thereby, authorized by Section 9 of the Act, and this, though the acts constituting the alleged discrimination had ceased prior to the commence- ment of the suit.^"* T[ L. AUTHOEITT OF THE COMMISSION TO AWAED SBT-OFP. It is obvious that the Commission has no authority to award set-ofE. 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 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.** 28a Morrisdale Coal Co. v. Penna Rd. Co. (1910), 176 Fed. Rep. 748. 27 See note 15, supra. 28 Pitts & Sons V. St. L. & S. P. Rd. Co. et al. (1905), 10 I. C. C. R. 684. 607 DAMAGES AND REPARATION. [§ 405 iy M. 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.^' TIN. 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.^" Tf f). Commission no Jurisdiction to Authorize Refund from Tariff Rate. 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.'^ 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. C. C. R. 237; LaSalle & Bureau County Railroad Co. v. C. & N. W. Ry. Co., 13 I.e. C. R. 610. 31 Poor Grain Co. v. C. B. & Q. Ry. Co. et al. (1907), 12 I. C. C. R. 418. § 406] INTEESTATE TKANSPOETATION. 608 TI P. Commission no Atjthoeitt to Award Eepaeation fok Damages due to Caeeiee's Pailuee 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, and, 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.'" U Q. Jurisdiction or Commission to Award Separation BASED ON Division op 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 Regu- late Commerce.'^ T[ E. Jurisdiction oe Commission to award Damages for ' Unreasonable Joint Through Eate from a Point IN THE United States to a Point in Adjacent For- eign Country. See Section 101, Paragraph P, ante. § 406. 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 32 Loud V. Southern Carolina R. Co. et al. (1892), 2 I. C. R. 732, 5 I. C. C. R. 529, 4 I. C. R. 205. 33LaSalle & Bureau County Rd. Co. v. C. & N. W. Ry. Co., 13 I. C. C. R. 610. 609 DAMAGES AND REPARATION. [§§ 407, 408 thereto, whether proceedings are instituted by complaint be- fore the Commission, or are brought in the first instance in a court of the United States.^^ § 407. 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 Act.*' §408. Reparation for Assessment of Charges in Excess of Published Schedule. 11 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. T[ 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. U C. Eight oe Shipper to Eecover . Overcharges. If, after adopting, printing and posting a schedule of rates, 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 V. 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. 37 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. Eegulation — 39. §4091 JXTEESTATE TRANSPORTATION. 610 as required by Section 6 of the Act, the carrier exacts from a 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!''^ TI D. Eei-und op Transfer Charges. 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.*" § 409, Reparation for Assessment of Unreasonable Rates. 1[ A. Measure of Eecovery. 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.*^ Moreover, the owner of the freight who has been required to pay an unreasonable rate is entitled, upon proper complaint and showing, to reparation irrespective of the profits accruing from his business."*-^ 11 B. Eate must have been Unreasonable when Paiii to Justify Eefund. In order for the Commission to grant reparation for an un- 39 Van Patten v. C. M. & St. P. Ry. Co., SI 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. y. C. M. & St. P. Ry. Co. (1909), 16 I. C. C. R. 295; Penn. v. P. 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. •t2 Burgess et al. v. Transcontinental Freight Bureau (1908), 13 I. C. C. R. 668. t2iiKindelon v. Southern Pacific Co. (1909), 17 I. C. C. R, 251, cited in Commercial Club of Omaha v. Anderson & Saline River Ry. Co. et al. (1910), 18 I. C. C. R, 532. 611 DAMAGES AND KBPARATIOX. [§ 409 reasonable rate it must be determined that siieli rate was un- reasonable at tlie 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.** 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.*^ It is not sufficient that a shipper who is willing to receive a refund and a carrier that is willing to make a refund to that shipper shall agree to jointly request the Commission to authorize such refund. The Commission should not and will not award reparation on the basis of a rate that is lower than that which the Com- mission would prescribe as reasonable.*^^ U C. Reduction in rate Raises no Presumption that former Rate was Unreasonable for Purposes of Reparation. 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, 43 Grain Shippers Association, etc., v. lU. Cent. Rd. Co. et al. (1899), 8 I. 0. C. R. 158. 44 Johnston v. St. L. & S. P. Rd. Co. (1907), 12 I. C. C. R. 73. 45Pabst Brg. Co. v. C. M. & St. P. Ry. Co. et al. (1909), 17 I. C. C. R. 359. 45aPaciflc Elevator Co. v. C. M. & St. P. Ry. Co. et al. (1910), 17 I. C. C. R. 373. § 409] INTEESTATE TEANSPOKTATION. 612 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.*' T[ D. Presumption wheke Long-Established Eatb is ad- vanced FOR A Short Period and then reduced to THE Former Basis. Where carriers voluntarily maintain a rate between certain 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 reduced to the former basis the presumption is that the advanced rate is unreason- able, but this presumption may be overcome by proof to the contrary.*^^ In case of Commercial Club of Omaha v. Southern Pacific Co. et al.*^^ the Commission stated: "It wiU suffice to say that an order granting affirmative relief, and particularly in a case in which reparation is awarded, must always be predicated « Penrod Walnut & Veneer Co. v. C. B. & Q. Rd. Co. et al. (1909), 15 I. C. C. R. 326. *7 See note 44, supra. " 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. 4sa Sunderland Brothers Co. v. P. M. R. R. Co. et al. (1909), 16 I. C. C. R. 450. 49b Commercial Club of Omaha v. Southern Pacific Co. et al. (1910), 18 I. C. C. R. 53. 613 DAMAGES AND EEPAEATION. [§ 409 upon a definite conviction, drawn from the record or from our own investigations, or from both, that the rate exacted on the shipments embraced within the complaint was an unreasonable rate." ^ B. Enforcement of Eules and Eegulations not shown in Published Tariff as affecting the Reasonableness OP THE Eate. See Section 93, Paragraph EE, ante. 1[ F. Eight of Shipper to recover Damages scstainbd THROUGH HIS EeFUSAL TO ShIP BECAUSE CARRIER DE- MANDED Unreasonable Rate. 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%-cent 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.'" TI G. Responsibility of Carriers participating in Joint Rate. There are joint responsibilities assumed by carriers when they publish a joint rate, and one of those obligations is to so Hope Cotton Oil Co. v. T. & P. Ry. Co. (1905), 10 I. C. C. R. 696. § 410] INTEKSTATE TRANSPOETATION. 614 treat that rate as a unit and to treat the shipment thereunder as a unit; and this not because of any contractual relation between the shipper and the originating carrier, but because the act of the originating carrier in accepting the shipment in conformity with its tariff provisions was the act of all its connections joining in that tariff.^"* Every carrier party to a joint rate is jointly and severally responsible for that rate.^"'' Those carriers who actually par- ticipate in the transportation under a joint rate are jointly and severally liable in damages for the unreasonableness of that rate.'"": 1[H. Eesponsibility op Caeeier under Eeleased- Valuation Clause. The initial carrier quoted the lowest rate on cotton linters applicable to shipments moving under a released valuation, but neglected to secure the shipper's signature to such release of valuation. The delivering carrier collected at a higher rate. Held, That it is the duty of the initial carrier not only to advise the shipper of the lower rates applying in case of release of valuation, but when informed of the shipper's desire to avail himself of such lower rates to obtain the shipper's signature in accordance with the tariffs.'"'' § 410. Overcharge account of Excess Weight. An overcharge account of difference in weight is a straight overcharge above the lawful tariff rate, and should be re- funded without order of the Commission.'"^ Boa Pacific Purchasing Co. v. C. & N. W. Ry. Co., 12 I. C. C. R. 549, cited in Capper Queen Consolidated Mining Co. v. B. & O. R. R. Co. (1910), 18 I. C. C. R. 154. 50b Osborne v. C. & N. W. Ry. Co. (1891), 48 Fed. Rep. 49; I. C. C. V. L. & N. R. R. Co. (1902), 118 Fed. Rep. 613. 50c Nicola, Stone & Myers Co. v. L. & N. R. R. Co. (1908), 14 I. C. C. R. 199. sod Southern Cotton Oil Co. v. Southern Railway Company et al. (1910), 19 I. C. C. R. 79, citing Southern Cotton Oil Co. v. L. & N. Rd. Co. et al. (1910), 18 I. C. C. R. 180. 50e Central Com'l Co. v. M. J. & K. C. Rd. Co. et al. (1909), 15 I. C. C. R. 25. 615 DAMAGES AND EEPAKATIOX. [§ J^ll The Commission has unqjiestioned authority to avail repara- tion in such cases. ^"^ § 411. Reparation for Damages accruing from Violation of Long-and-Short-Haul Clause. II A. Eight oi' Shipper to Eecovee. 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 lowest 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 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.'^ II B. Measuee OB 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.'' 5of Leonard v. M. K. & T. Ry. Co. et al. (1907), 12 I. C. C. R. 538. 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. § 412] INTERSTATE TEANSPOETATION. 616 § 412. 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. 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 heen made, both the carrier and the shipper would have heen guilty of a criminal offense and the agreement would have been so absolutely void as to be impossible of enforcement.^* "Moreover, in view of the necessary relation between the carrier and shipper, the dependence in modern business life of 64 T. & P. Ry. Go. V. Abilene Cotton Oil Co., 204 U. S. 426, 445, 51 L. ed. 553, 27 Sup. Ct. 350. 617 DAMAGES AXD REPARATION. [§ 413 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. "°° § 413. Commission wiU 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.^^ 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, Stone & Myers 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; National Refining Co. v. A. T. & S. F. Ry. Co. (1910), 18 I. C. C. R. 389. 57 Swift & Co. V. C. & A. Rd. Co. (1909), 16 I. C. C. R. 426. §§ 414-416] INTEESTATB THANSPOETATION. 618 § 414. 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. °* § 415. 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 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.*' § 416. Refund of Overcharge on Shipment to Adjacent Foreign Country. 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.''^ 58 Poor Grain Co. v. C. B. & Q. Ry. Co. et al. (1907), 12 I. C. C. 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. 60 Shiel & Co. V. 111. Cent. Rd. Co. et al., 12 I. C. C. R. 211. 81 1. C. C. V. G. & 0. Ry. Co. et al. (1904), 128 Fed. Rep. 59. 62 Rule 126, Con. Rul. Bui. No. 4 (Dec. 8, 1908). 619 DAMAGES AND REPARATION. [§§ 417, 418 § 417. 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.°^ § 418. Where Rates have been vo'luntarily reduced Commis- sion will 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- 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, all will admit that there can be a wide divergence of opinion as to what a reasonable rate between two points may be, and any policy pursued by this Commission tending to make it burdensome 63 Holcomb-Hayes Co. v. 111. Cent. Rd. Co. (1907), 12 I. C. C. R. 128. 64 Piiant 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. 65 Diehl, 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; Menefee Lumber Co. v. T. & P. Ry. Co. (1909), 15 I. C. C. R. 49; Penn. Tobacco Co. v. Old Dominion S. S. Co. et al. (1910), 18 I. C. C. R. 197. 60 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. § 419] INTERSTATE TEANSPOETATION. 630 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 fs 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." § 419. Commission will not order Reparation where its Effect will be to make a Reconsigning Privilege Retroactive. The Commission has consistently held in the past that it 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- 631 DAMAGES AND EEPAEATION. [§§ 430-423 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.^' § 420. Shipper cannot recover on Contract Rate Different from Published Rate. 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.'^ § 421. 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 for detention of his goods, where delivery was refused because the published rate had not been tendered.^' § 422. Where Damages Result 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 Regulate 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. oTSunnyside 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. P. R. R. Co. V. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802; T. & P. Ry. Co. v. Mugg, 202 U. 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. 69 T. & P. Ry. Co. V. Mugg, 202 U. S. 242; 26 Sup. Ct. Rep. 628; 50 L. ed. 1011. § 422] INTERSTATE TKANSPOKTATION. 622 The Commission, 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 Regulate 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 case would be to authorize the carriers to receive and the shippers to pay charges less than 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 70 Pueblo Transportation Co. v. Southern Pacific Co. (1908), 14 I. C. C. R. 82. 623 DAMAGES AND HBPARATION. [§§423,434 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 dec).ine." However, in the case of Kiel Woodenware Co. v. C, M. & St. P. Ry. Co./"^ the Commission awarded reparation for dam- ages accruing to the complainant, by reason of defendant's failure to post its tariff in accordance with the statute, in the amount of the difference between the rate exacted from the complainant and the rate under which the traffic would have been forwarded had defendant not failed to post its tariff. These two cases seem to be at variance with each other. § 423. Where Damages result to the Shipper account Failure of Initial Carrier to secure Concurrence of Connect- ing Line. If a carrier files and posts a tariff naming joint rates from stations upon its line to destinations upon a connecting line in which tariff the connecting line does not concur, the initial line thereby becomes responsible to the shipper under its tariff. If the shipper is compelled to pay, under rates legally in effect a greater transportation charge than that named in the tariff he may recover from the initial line the difference ; cer- tainly if the rate posted by it is found to be reasonable.""' § 424. Liability of Carriers for misrouting Shipments and Reparation therefor. T[A. "Where no Specific Instructions are 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 70a Kiel Woodenware Co. v. C. M. & St. P. Ry. Co. (1910), 18 T. C. C. R. 242. 70b Black Horse Tobacco Co. v. I. C. R. R. Co. et al. (1910), 17 I. C. C. R. 588. § 424] INTBHSTATE TEANSPOETATION. 634 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.'" 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 traffic improperly moved and the lower rate which would have been applied had the freight been properly forwarded.'* This is a rule of obvious propriety." IJB. Where Caerier Disregards Shipper's Instructions. If a carrier contrary to a shipper's instructions, forwards ears via a more expensive route, so as to burden the shipper 71 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. 0. R. 418. " Henderson Lumber Co. v. K. C. Ry. Co. et al. (1909), 16 I. C. C. 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. & 0. 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. 7s See note 58, supra. 625 DAMAGES AND BEPARATION. [§ 431 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/' 1[ C. The Caeriee Eesponsiblb foe Miseouting is the only ONE THAT SHOULD MaKE EePAEATION. Where a shipment has been misrouted, in consequence of 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 ease 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, whieli 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 76 See note 71, supra. 77 Carstens Packing Co. v. O. R. & N. Co. et al. (1909), 15 I. C. C R. 482. '8 See note 74, supra. T9 Hennepin Paper Co. v. Northern Pac. Ry. Co., 12 I. C. C. R. 535 (1907). Eegulation — 40. § 424] INTERSTATE TEANSPOETATION. 636 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.'^ U D. Where Initial Carrier is Responsible for Misrouting. 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 80 Rule 186, Con. Rul. Bui. No. 4 (June 8, 1909), cited In Alpha Portland Cement Co. -v. D. L. & W. Rd. Co. et al. (1910), 19 I. C. C. R. 297. 81 Rule 190, Con. Rul. Bui. No. 4 (June 22, 1909). 82 Rule 137, Con. Rul. Bui. No. 4. 627 DAMAGES AND REPARATION. [§ 424 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 only to require the carrier to make just compensation for injury resulting from failure to perform its duty.** T[ E. MiSROUTING VIA LiNE THAT HAS NO TARIFF ON PiLE. 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.*' U F. Where Connecting Carrier receives Shipment with- out EouTiNG Instructions. A connecting line receiving a shipment without instructions may demand instructions from the initial carrier, but if, in- stead of pursuing that course, it assumes the responsibility of routing the shipment it must accept the resulting liability for any damage in the way of increased charges that necessarily and directly flows from its mistake in selecting the wrong route. It is not excused by the fact that the shipper had given 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; Willson Bros. Lbr. Co. v. Norfolk Southern Rd. Co. et al. (1910), 19 I. C. C. R. 293. 85 Rule 90, Con. Rul. Bui. No. 4. § 424] INTERSTATE THANSPOETATION. 628 .correct routing instructions which the initial carrier had neg- lected to note on the transfer billing.^^^ 1[ Gr. Ebfund of Dkaxage Chaegbs caused by misrouting. 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."' H H. Carriers reimbursing Connecting Lines for MiSROUTING. 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 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- 85a Duluth & Iron Range Rd. Co. v. C. St. P. M. & 0. Ry. Co. et al. (1910), 18 I. C. C. R. 485, construing Rule 214, Con. Rul. Bui. No. 4. 86 Rule 25, Con. Rul. Bui. No. 4 (Jan. 6, 1908). 87 Rule 214, Con. Rul. Bui. No. 4 (March 18, 1907). 88 Rule 198, Con. Rul. Bui. No. 4 (June 21, 1909). 629 DAMAGES AND KEPAKATION. [§ 424 tional transportation charges, for whicli 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[ I. Eefund of Oveechakge caused by miseouting THROUGH EeKOE OF CaEEIEE'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- 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 particular line via which a higher rate obtains than is effective via some other line.'" 89 Rule 205, Con. Rul. Bui. No. 4 (June 29, 1909). 90 See note 87, supra. § 424] INTERSTATE TRANSPOETATION. 630 The rule is intended to apply to cases in whicli 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 reasonably be expected to know as to terminal delivery or local rates at distant points and on lines of distant roads to or with which 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." m See note 87, supra. 92 Ibid. 631 DAMAGES AND REPARATION. [§§425,426 § 425. Reparation for Failure of Carrier to perform Expedited Service as Agreed in Consideration of Increased Bate. "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.** § 426. Reparation for Damages account Unjust Discrimination. ^ A. Eecoveky for Assessment of Discriminatory Charge. Where a discriminatory freight charge has been exacted of a shipper, reparation may properly be awarded.'^ U B. Discrimination in Eurnishing 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 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 case where injustice is done by such discriminations.''^ Discrimination in furnishing cars is rarely a continuing offense which can be discontinued for the future under a gen- 93 American Fruit Union v. C. N. O. & T. P. Ry. Co. (1907), 12 I. C. C. R. 411. 0* Ibid. 95 City Gas Co. v. B. & 0. Rd. Co. (1905), 11 I. C. C. R. 371; Texas Cement Plaster Co. v. St. L. & S. F. Rd. Co. (1907), 12 I. C. C. R. 68. 9ii Eaton V. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619. § 426] INTERSTATE TRANSPOHTATION. 63^ eral regulating order from tlie Connnission 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.=' ^ C. Measure 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 difPerence between the amount paid by the plaintiff and the amount it would have paid at the lowest rate charged 04 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.^"" 1[D. Discrimination must be Actual. Discrimination in fact and not mere intention to discrimi- nate is unlawful under the Act to Eegulate Commerce. The offering of a discriminating rate which is never carried into 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. 09 Paxton Tile Co. v. Det. Southern Rd. Co. (1905), 10 I. C. C. R. 422. ; 3 00 See note 65, supra. 633 DAMAGES AND REPAEATION. [§§437,428 effect cannot be construed as unlawful ; nor can a shipper who is charged a higher rate be said to be injured thereby.^"^ T[ E. Liability of Connecting Caeeiee eoe 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.^"^ § 427. Accrued Claims not invalidated by Subsequent Cancel- lation of Absorption Bule. 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: Held, That the subsequent cancellation could not invalidate a claim already accrued.^"^ § 428. Damages to Fruit by delayed Notice of Arrival at Destination. An express company undertook to notify the consignee of 101 Lehigh Valley Rd. Co. v. Ralney et al. (1902), 112 Fed. Rep. 487. io2Penn. 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). § 429] INTERSTATE TEANSPOETATION. 634 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 Regulate Commerce, and therefore was not cognizable by the Commission.^"* It should be noted, however, in connection with the above, that the Act as amended June 18, 1910, makes it the duty of all common carriers subject to its provisions to establish, ob- serve and enforce just and reasonable regulations and prac- tices affecting the delivery of property.^"*^ § 429. Remote or Speculative Damages. 1[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,^"^ and remote or speculative damages may not be taken into consideration. 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; Eeld, 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.^"' 104 Rule 127, Con. Rul. Bui. No. 4 (Dec. 8, 1908). 104a Act to Regulate Commerce (as amended June 18, 1910). 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. 635 DAMAGES AND REPARATION. [§ 429 T[ C. Loss OF 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."^ Loss of profit based on canceled contracts and avoided sales alleged to have been caused by carrier's unfair treatment is impossible of determination.^"* T[D. Loss OF 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.^"' TfE. Loss OF Pebstigk. 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.^^" T[ P. 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- lOT Hope Cotton Oil Co. v. T. & P. Ry. Co. (1905), 10 I. C. C. R. 696. los Eaton 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; Eaton v. C. H. & D. Ry. Co. (1906), 11 I. C. C. R. 619. §§430,431] INTERSTATE TEANSPOETATION. 636 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- § 430. A Passenger Wrongfully deprived of Benefit of Return Coupon of a Round-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 en,joyed 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.^^'' § 431. 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.^"^^* 111 Penn. v. F. C. & P. R. Co. (1892), 3 I. C. R. 740; 5 I. C. C. R. 37. 112 Rule 167, Con. Rul. Bui. No. 4 (April 13, 1909). 112a Rule 120, Con. Rul. Bui. No. 4 (Nov. 13, 1908). 637 DAMAGES AND EEPARATION. [§§432,433 § 432. Where Freight is unloaded by Carrier's Agent in Depot by Mistake Instead of Switching Oar 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 their warehouse, and demanded from the carrier refund of sum equal to the cost of such drayage ; Eeld, 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.^^^ § 433. Liability of Receiving Carrier for Loss or Damage on Interstate Traffic. If A. Provision op the Statute. The Act to Eegulate Commerce provides i^^* ' ' 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." ^ B. Remedies 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 acti(jn which he has under existing law.^^^ 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. §§ 434, 435] INTERSTATE TEANSPOETATION. 638 This leaves a shipper free to resort to the law of a State applicable to his contract. ^^° U C. Initial Caeeier may have Eecourse upon Caeeier Eesponsible foe Loss OE 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 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 op the Statute making Receiving Caeeiee liable poe Loss oe Damage on Interstate Traffic. See Section 309, ante. § 434. 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."^^' § 435. Benefit of Reparation 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 itoLatta V. C. St. P. M. & O. Ry. Co. (1909), 172 Fed. Rep. 850. 11' See note 114, supra. 118 Edmunds v. Ills. Cent. R. Co. (1897), 80 Fed. Rep. 78. 639 DAMAGES AND REPARATION. [§§ 436-438 the carrier upon such shipments except upon specific authority from the Commission.^^' § 436. Delivering Carrier must investigate before paying 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 and allow the claims or not upon the basis of its own investi- gations.^^" § 437. 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.^^^ § 438. 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.^^" 119 Rule 49, Con. Rul. Bui. No. 4 (March 10, 1908). 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. §§ 439-444] INTERSTATE TEANSPOETATION. 640 § 439. Parties entitled to Reparation. 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 the excessive charges as the price of transportation and who was the true owner of the property transported during the period of transportation.^^^ § 440. Limitation of Actions before the Commission. See Section 798, post. § 441. Parties to Action for Damages. See Section 790, Paragraph A, post. § 442. Rules of Procedure before the Commission. See Section 806, post. § 443. Order of Commission awarding Reparation. See Section 797, post. § 444. Change of Rate while Shipment was on the Ocean. 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."^ 123 Nicola, stone & Myers v. L. & N. R. R. Co. (1908), 14 I. C. C. R. 199. 127 Rule 111, Con. Rul. Bui. No. 4 (Nov. 12, 1908). 641 DAMAGES AND REPARATION. [§§ 445-4-17 § 445. Remedy for Wrongs which occurred prior to the Act. The Act to Eegulate Commerce does not afford a remedy for transactions which occurred before it took effect.^^* 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.^-* § 446. Special Beparation on Informal Complaints. See Section 782, post. Paragraph C. § 447. Penalty for Shipper obtaining or attempting to obtain Payment for Damages, Allowance or Refund by False Representation. See Section 761, post. i28 0ttinger v. Southern Pacific Co. (1887), 1 I. C. R. 607; 1 I. C. C. R. 144. i29Holbrook et al. v. St. P. M. & M. P. Co. (1887), 1 I. C. R. 323, 1 I. C. C. R. 102. Eegulation — 41. CHAPTEE XXIX. TRANSPORTATION OF EXPLOSIVES. Section 448. Unlawful to transport Explosives with Passengers. 449. Unlawful to transport Liquid Nitroglycerin, Fulminate in Bulk, or other like Explosives. 450. Excepted Classes of Explosives that may be Lawfully Transported with Passengers. 451. Interstate Commerce Commission authorized to formulate Regu- lations for the Safe Transportation of Explosives. 452. Packages containing Explosives must be marked. 453. Concealing Character of Packages containing Explosives Declared Unlawful. 454. Penalties for Violations of the Law. 455. Regulations for the Transportation of Explosives. § 448. Unlawful to transport Explosives with Passengers. The statute provides that it shall be unlawful to transport, carry, or convey, 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 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.^ ' 1 Transportation of Explosives Act March 4, 1909, Section 232. It should be noted that this statute applies to any vessel or ve- hicle of any descriptibn operated by a common carrier, which vessel or vehicle is carrying passengers for hire. This is a step toward conferring jurisdiction upOn the Interstate Commerce Commission over water carriers. 643 643 TRANSPORTATION OE EXPLOSIVES. [§§ 449-451 § 449. 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 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.^ § 450.' 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.' § 451. Interstate Commerce Commission authorized to formu- late Regulations for the Safe Transportation of Explosives. The statute authorizes the Interstate Commerce Commission 2 Explosives Act. Section 234. 3 See note 1, supra. §§ 452, 453] INTERSTATE TEANSPOETATION. 644 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 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 ^55, post. § 452. Packages containing Explosives must be marked. 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.'' § 453. Concealing Character 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, * Explosives Act. Section 233. e Explosives Act. Section 233. s Ibid. ' Explosives Act. Section 235. 645 TKANSPOKTATION OF EXPLOSIVES. [§§454,455 any explosive, or other dangerous article, under any false or deceptive marking, description, invoice, shipping order or other declaration, or vrithout informing the agent of such carrier of the true character thereof, at or before the time such de- livery is made.' § 454. Penalties for Violations of the Law. See Section 781, post. § 455. Regulations for the Transportation of Explosives. [The following comprise all the regulations which have been pre- scribed by the Commission, the paragraphs having been numbered to correspond with the rules and regulations of the American Railway Association.] GENEKAI 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 lavrfuUy 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 vpill make further provision as occasion may require for new explosives not included in or covered by the following regulations. GENERAL RITLES. 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 a See note 7, supra § 455] INTERSTATE TEANSPOETATION. 646 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 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 which 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 Kailway 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 FOR STRENGTH OF PACKAGE. D. Packages receive their greatest stresses in a direction parallel to the length of the car and must, therefore, be loaded 647 TRANSPORTATION OF EXPLOSIVES. [§ 455 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 rupture, nor must any portion of the contents escape there- from. F. In addition to standing the test in paragraph E, 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 inefScient, may be prohibited by the Commission, even if it should stand the drop test prescribed by paragraph E. Gr. Violations of these regulations discovered in ears 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. GROUFING. 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. § 455] INTERSTATE TEANSPOETATION. 648 Section I.— INFORMATION AND DEFINITIONS. Group I. — Forbidden Explosives. See paragraphs 1531 to 1536. 1501. The following are forbidden explosives : (a) Liquid Nitroglycerin. (&) Dynamite containing over 60 percent of nitroglycerin (except gelatine dynamite). (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 ISlfl to 15)f5. 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, pierates, chlorate powders, and nitrate of ammonia pow- ders. 649 TRANSPORTATION OF EXPLOSIVES. [§ 455 Group 4. — Smokeless Powders. See paragraphs 1571 to 1579. 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. 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 Grovernment 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. § 4-55] INTERSTATE TEANSPOETATION. 650 • 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- 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 fiying 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 lOJfl to 1847. 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 all that depend princi- pally upon nitrates to support combustion and not upon chlor- 651 TKANSPORTATION OF EXPLOSIVES. [§ 455 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, Koman candles, pinwheels, colored fires, serpents, railvpay fusees, flash powders, etc. 1515. Special Fireworks include all that contain any quantity of red or white phosphorus, a fulminate, or other high explo- 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 I. — 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- § 455] INTERSTATE TEANSPORTAXION. 652 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. DISPOSITION OF 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 653 TRANSPORTATION OF EXPLOSIVES. [§ 455 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. Group 2. — Black Powder. 1541. Packing. — ^Packages containing less than twelve and a half (12l^) 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, E, and F. Kegs less than 9 inches long must be boxed, as prescribed by paragraph 1541. 1543. Weight. — ^Packages must 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. 9 Occasional shipments of "brown powder," having the composition of black powder, are made by or for the United States Government. § 455] INTERSTATE TRANSPORTATION. 654 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 mi:^ing; 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 raagnesium carbonate equal to 1 percent of the nitroglycerin. 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 12^^ 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. 655 TRANSPORTATION OF EXPLOSIVES. [§ 455 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 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 packa,ges that comply with General Rules D, B, and P. 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 exceefi 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. § 455] INTERSTATE TRANSPORTATION. 656 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. — ^Por 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 Po-vyder. 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. 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 ear 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, E, 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 ease the gross weight must not exceed 150 pounds. 1578. Marking. — Each outside package must be plainly marked on top "SMOKELESS POWDER FOR SMALL ARMS." 657 TEANSPOETATION OF EXPLOSIVES. [§ 455 1579. Car. — Shipments of smokeless powder for small arms in any quantity require a ear 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 twill 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, 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 must 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 noninflamnlable articles and Regulation — 42. § 455] INTERSTATE TEANSPOHTATION. 658 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. — SmaU-arms ammunition may be shipped in any box car which is in good condition, without the placard pre- scribed by paragraph 1663. AMMUNITION FOE CANNON. 1604. Packing. — Ammunition for cannon must be well packed and properly secured in strong boxes provided with cleats or handles. 1605. Marking. — Bach 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 ears must be pro- tected by "INFLAMMABLE" placard, as prescribed by para- graph 1663. EXPLOSIVE PEOJECTILES. 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. 659 TRANSPORTATION OF EXPLOSIVES. [§ 455 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 thickness (except in cases 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- § 455j INTERSTATE TRANSPORTATION. 660 taining blasting caps or electric blasting caps must not exceed 150 pounds. 1613. Marking. — Each outside package must be plainly marked "BLASTING CAPS— HANDLE CAREFULLY," or "ELECTEIC 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. DETONATING FUZES. 1615. Packing. — Detonating fuzes must be packed in strong, tight boxes provided with cleats or handles, and each fuze must be well secured. 1616. Weight. — The gross weight 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. PRIMERS, PERCUSSION AND TIME FUZES. 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 more than 500 caps, but the construction of the cap, and the kind and quantity of explosives in each, must be 661 TRANSPORTATION OF EXPLOSIVES. [§ 455 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 must not exceed 150 pounds. 1621. Marking. — Bach outside box must be plainly marked "SMALL- ARMS PRIMERS— HANDLE CAREFULLY," or "PERCUSSION CAPS — HANDLE CAREFULLY," or "CANNON PRIMERS— HANDLE CAREFULLY," or "COM- BINATION PRIMERS— HANDLE CAREFULLY," or "PER- CUSSION FUZES— HANDLE CAREFULLY," or "COMBI- NATION FUZES— HAI^DLE CAREFULLY," etc. 1622. Car. — Primers, percussion and time fuzes may be shipped in a box car which 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 plainly 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- § 455] INTBESTATB TRANSPORTATION. 663 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, B, 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. — Bach outside package, if it contains spe- cial or a mixture of common and special fireworks, must be plainly marked "SPBCIAL FIREWORKS— HANDLB CARE- FULLY—KEEP FIRE AWAY." 1647. Car. — Special fireworks may be shipped in any box car which is in good condition (par. 1663), but they must not 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. 663 TEANSPOETATION OF EXPLOSIVES. [§ 455 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. (6) 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, when 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 carefuUy 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. {g) 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-inch plank) spiked to the floor over them to prevent pos- sibility of their wearing into the packages of explosives. § 455] INTEHSTATB TEANSPORTATION. 664 (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. (t) When explosives are to be carried 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. (fc) The carrier must have car examined to see that it is properly prepared, and must have a "Car Certificate" signed in triplicate upon the prescribed form (par. 1665) before per- mitting the car to be loaded. (I) 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 rodf 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. 10 A "way car" is one from which shipments are unloaded by the train crew. 6(J5 TEANSPOETATION OF EXPLOSIVES. [§ 455 Placarding of Cars and Certification of Contents. 1664. Unifomi practice is important, and the prescribed forms of car certificates and placards must be used. 1665. Oar Certificate. — The following certificate (i)reseribed 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 origiaal 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 4i/^ feet above the floor level. CAR CERTIFICATE. No. 1. Station, , 19—. I hereby certify that 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 Are; 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 bottom. NOTE. — Both certificates must be signed. Certificate No. 1 by the § 455] INTERSTATE TRANSPOEXATION. 666 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 containing 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 43/2 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: 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- 667 TRANSPORTATION OP EXPLOSIVES. [§ 455 ing without having the certificates and placard prescribed in paragraphs 1665 and 1666 securely and properly affixed. 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, Ammunition 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- § 455] INTERSTATE TEANSPOETATION. 668 nue waybill. The carrier must also cause to be written or stamped on the face of the card and revenue waybill : Shippers' Certificate on File with Initial Carrier. The card waybill, for a ear 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- stroyed if there are no violations of these regulations to report. (See par. Q, 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 have 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 669 TKANSPOETATION OP EXPLOSIVES. [§ 455 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. 1675. Explosives packed in round kegs, except when 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 prevent 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 ear," 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 wet nitrocellulose, nor with smokeless powder for small arms. 1678. Fulminates in bulk must not be loaded with any ex- plosive or inflammable article. § 455] INTEESTATE TRANSPOETATION. 670 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 Regulations for the Transportation of Inflammable Articles and 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 o£ 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 11 At stations where it is necessary to handle explosives at night it is recommended that incandescent electric lights be provided. 671 TRANSPORTATION OF EXPLOSIVES. [§ 455 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 ears must be placed between box ears 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- 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 car 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 ear known to require the "BXPLOSrVB" 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 employes of the presence and location of such car 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 § 455] INXEESTATE TRANSPORTATION. 672 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 ear 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 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 pow- 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 673 TKANSPOETATION OF EXPLOSIVES. [§ 455 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 avpay. 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 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, gpark, 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 CAEEFULLY," 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.