KF ll74 BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF Henrg ^. Sage 1S91 Jl..x%5.Gi^^., i,a4'ff|.fl-^ Cornell University Library KF 22761908 The law relating to the Interstate Comme 3 1924 019 905 466 Date Due jm ^S3sssm |t,Bf»,«M««» (*•.»■-'• ■■■'"■ r i '''^AK l'^4B5Ti t 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/cu31924019905466 THE LAW RELATING TO THE INTERSTATE COMMERCE COMMISSION SHERMAN ANTI-TRUST ACT BUREAU OF CORPORATIONS BY JOHN HORATIO NELSON OF THE DISTMCr OF COLUMBIA BAB g THE BANKS LAW PUBLISHING CO. ^ NEW YORK 1908 25 COPTBIOHT, 1908, BT THE BANKS LAW PUBLISHING COMPANY PREFACE It will conduce to a clearer understanding of "The Act to Regu- late Commerce" to give a brief outline of its general scope, with the object of fixing the rights which it was intended to conserve or create, the wrongs which it proposed to redress and the reme- dies which the Act established to accomplish the purposes which the lawmakers had in view. The causes which induced the enactment of the statute grew out of the use of railroads as the principal modern instrumentality of commerce. While shippers of merchandise are under no legal necessity to use railroads, they are so practically. The more valu- able articles of traffic demand speedy and prompt movement, and the immense outlay of money required to build and maintain rail- roads, and the necessity of resorting, in securing the rights of way, to the power of eminent domain, in effect disable industrial mer- chants and shippers from themselves providing such means of carriage. From the very nature of the case, therefore, railroads are monopolies, and the evils that usually accompany monopolies soon began to show themselves and were the cause of loud com- plaints. The chief complaint of the public was that from the mode in which the carriers imposed their charges it resulted that the rates were unequal; that to make good the loss resulting from the favorit- ism shown to particular localities, persons, or classes of business, a greater burden was placed upon the remainder of the traffic; and that through the practical monopoly acquired by the railways over the transportation business of the country the shippers were largely at the mercy of the carriers, and that as a result the business of the community, in so far as the same depended upon the use of transportation facilities, was subjected to unequal and unreason- able burdens and exactions. As the powers of the states were restricted to their own territory and did not enable them to effi- ciently control the management of great corporations whose roads extend through the entire country, there was a general demand that Congress, in the exercise of its plenary power over the subject iii iv PREFACE of foreign and interstate commerce, should deal with the evils complained of by a general enactment. The Act to regulate commerce was the first effort of the general government to regulate the great transportation business of the country. That business, though of a gttasi-public nature, and therefore subject to governmental regulation, has been carried on by private capital through corporations. The fact that it was a qimsi-Tpnhlic business always prevented the owners of capital invested in it from charging, like owners of other property, any price they saw fit for its use. A reasonable compensation was all they could exact, but it must be remembered that railroads are the private property of their owners, and while from the public character of the work in which they are engaged the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet in no proper sense is the public a general manager. It is the duty of the courts to see that legislation limiting charges for transportation is not carried beyond its clear scope and that the owners of private capi- tal invested in the business of transportation be not deprived of their liberty of contract and right of control any further than the lawmaking power has intended that they should be. The Commission is charged with the duty of investigating and reporting upon complaints, but it is not a Federal court under the Constitution though it exercises gwasi-judicial powers, nor do its conclusions possess the efficacy of judicial proceedings. It per- forms for the United States, in respect to the power committed to it over interstate commerce, the same functions which a state can exercise in respect to purely internal commerce over which the states have exclusive control. What one sovereign may do in respect to matters within its exclusive control the other may cer- tainly do in respect to matters over which it has exclusive authority. The Act made it the duty of carriers subject to its provisions to charge only just and reasonable rates. To that end the duty was imposed of establishing and publishing schedules of such rates. It forbade all unjust preferences and discriminations, made it un- lawful to depart from the rates in the established schedules until the same were changed as authorized by the Act, and such de- parture was made an offense punishable by fine or imprisonment, or both, and the prohibitions of the Act and the punishments which it imposed were directed not only against carriers but against ship- pers, or any person who, directly or indirectly, by any machina- tion or device in any manner whatsoever, accomplished the result PREFACE V of producing the wrongful discriminations or preferences which the Act forbade. It was made the duty of carriers subject to the Act to file with the Commission copies of established schedules, and power was conferred upon that body to provide as to the form of the schedules, and penalties were imposed for not establishing and filing the required schedules. The Commission was endowed with plenary administrative power to supervise the conduct of carriers, to investigate their affairs, their accounts and their methods of dealing, and generally to enforce the provisions of the Act. It was made the duty of the district attorneys of the United States, under the direction of the Attorney-General, to prosecute proceed- ings commenced by the Commission to enforce compliance with the Act. It specially provided that the carriers shall be liable to the persons injured for the full amount of damages sustained in consequence of any violation of its provisions. Power was con- ferred upon the Commission to hear complaints concerning viola- tions of the Act and to investigate the same, and if such complaints were well founded, to direct not only the making of reparation to the injured persons, but to order the carrier to desist from such violation in the future. In the event of the failure of a carrier to obey the order of the Commission that body or the party in whose favor an award of reparation was made, was empowered to compel compliance by invoking the authority of the courts of the United States in the manner pointed out in the statute, ■prima facie effect in such courts being given to the findings of fact made by the Com- mission. It may be stated generally that subject to the two leading pro- hibitions that their charges shall not be unjust and unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or advantage, or subject to undue prejudice or disad- vantage persons or traffic similarly circumstanced, the Act leaves common carriers as they were at common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the ne- cessities of commerce, and generally to manage their important in- terests upon the same principles which are recognized as sound and adopted in other trades and pursuits.^ * Texas and Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 210; Van Patten v. C, M. & St. P. Ry., 81 Fed. R. 549; C, M. & St. P. Ry. v. Osborn, 52 Fed. R. 914; Ken. and Ind. Bridge Co. v. L. and N. Ry., 37 Fed. R. 613; Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 437; Interstate Com- merce Commission v. Chicago Great Western Ry., 209 U. S. 108. vi PREFACE The various provisions of the Act have been unskillfully as- sembled, and the intent of Congress, in many instances, must be ascertained by associating detached paragraphs and placing such as are related in logical sequence, and the result is to increase the chances of misconstruction by the tribunal charged with its in- terpretation and enforcement, and to confuse the minds of the lawyers who are applied to for advice and guidance. One purpose of this work, as exhibited in the Analysis of the Act, is to search out and assemble the more important provisions in numerical sequence so that a quicker and clearer conception of the substantive enactments may be had. A further object of the Analysis of the Act is to dissect the body thereof in order to a closer study of its structure; to separate it into units; to expose it to public view in its primal elements; to strip the incongruous growth of its foliage that the trunk and its branches may be seen in proper relation to each other, and to reduce the provisions of the Act to short, concise propositions of easy com- prehension. The amending Act of June 29, 1906, revitalized the parent law and increased its efficiency. The Supreme Court, in several cases, has accorded great weight to the reports and conclusions of the Commission and "ascribed to them the strength due to the judg- ments of a tribunal appointed by law and informed by experi- ence," and its decisions, including its administrative rulings and opinions, are being very generally observed, and recognized and accepted as the law. In view of the importance of these decisions a special effort has been made to collect, digest and cite under the appropriate section all the latest cases adjudicating principles, together with the more important earlier decisions of the Com- mission and the principal cases of the Federal courts construing the several acts. Tariff Circular 15-A, containing "Regulations governing the con- struction and filing of freight tariffs, and classifications and pas- senger fare schedules" and "Administrative Rulings and Opin- ions," together with "Conference Rulings of the Commission," are included in this work in toto. They are of great practical utility to carriers and shippers, and probably the most important' docu- ments issued by the Commission since its creation. All acts and parts of acts imposing any duty upon the Com- mission have been compiled and included herein for convenience and ready access. The Sherman Anti-Trust Act of July 2, 1890, has been embraced PREFACE vii herein, together with a digest of most, if not all, of the decisions of the Supreme Court construing its provisions. Some of the decisions of the Federal courts relating to the "Power of Congress over Interstate Commerce" and the "Power of Con- gress to Regulate the Rates of Railways," the "Employees' Lia- bility Act," and the "Bureau of Corporations" have been compiled and digested, and are comprehended within this work on account of their kinship to the main topic and the interest of the public in these subjects. In order to include this work within a reasonable compass, many citations to cases considered by the Commission have been given under subject headings without any discussion of the principles involved. In this connection it may be an aid to those making researches to have a pamphlet copy of any particular case, which ordinarily will be supplied by the Commission upon request. J. H. N. Washington, D. C. October 1, 1908. CONTENTS CHAPTER I PAGE An Analysis of the Act to Regulate Commerce 1 CHAPTER II The Act to Regulate Commerce, Together With a Digest of the Principal Cases Relating Thereto, Decided by the Inter- state Commerce Commission and the Federal Courts ... 26 CHAPTER III The "Elkins Act," Together With a Digest of Some of the De- cisions of the Federal Courts Relating Thereto 116 CHAPTER IV Immunity Statutes 121 CHAPTER V The Act to Expedite the Hearing and Determination of Cer- tain Cases 123 CHAPTER VI The Safety Appliance Acts and a Digest of the Decisions of the Federal Courts Relating Thereto 125 CHAPTER VII The Act Requiring Reports of Accidents 136 CHAPTER VIII The Act Relating to the Hours of Service of Employees . . . 137 in X CONTENTS CHAPTER IX PAGE The Arbitration Act 140 CHAPTER X The Medal Act 149 CHAPTER XI District of Columbia Street Railway Act 151 CHAPTER XII The Act Relating to the Transportation of Explosives . . . 157 CHAPTER XIII Tariff Circular No. 15-A, Containing Regulations Governing, the Construction and Filing of Freight Tariffs and Classi- fications and Passenger Fare Schedules, Administrative Rulings and Opinions and Special Circular No. 6, and Sup- plement No. 1 to Tariff Circular 15-A 159 CHAPTER XIV Administrative Rulings of the Commission in Conference . . 247 CHAPTER XV Tariff Circular No. 16-A, Containing Regulations Governing the Construction and Filing of Tariffs and Classifications of Express Companies, and Administrative Rulings and Opin- ions 272 CHAPTER XVI In the Matter of Legal Rates (Memorandum by Commissioner Lane) 310 CHAPTER XVli In re Investigations by the Commission 315 CONTENTS xi CHAPTER XVIII PAOB Cases in Which the Rulings of the Commission Were Sustained by the Courts 317 Cases in Which the Rulings of the Commission Were not Sus- tained by the Courts 318 CHAPTER XIX Rules of Practice Before the Commission 321 CHAPTER XX Power of Congress Over Interstate Commerce 332 CHAPTER XXI Employers' Liability Act 342 CHAPTER XXII The Sherman Anti-Trust Act, Together With a Digest of the Principal Decisions of the Supreme Court of the United States Construing Said Act 346 CHAPTER XXIII The Bureau of Corporations 362 TABLE OF CASES Keferences are to pages. Abilene Cotton Oil Case (204 U. S. 426), 37, 71, 93, 112, 312. Adair v. United States (208 U. S. 161), 147. Adams v. Mo. Pac. Ry. (192 U. S. 440), 32. Addyston Pipe & Steel Co. v. United States (175 U. S. 211), 356, 358. Aikens v. Wisconsin (195 U. S. 194), 357. Alabama Midland Ry. Case (168 U. S. 173), 29, 48, 49, 51, 54, 55, 60, 61, 62. Alleged Excessive Freight Rates (4 I. C. C. 48), 40. Alleged Unlawful Charges for the Transportation of Coal by the L. & N. Ry. (5 I. C. C. 466), 49. Allen & Lewis v. Oregon, etc. (98 Fed. R. 16), 58. Allowances to Elevators, etc. (12 I. C. C. 85), 42. Allowances to Elevators (14 I. C. C. 315), 85. American Banana Co. v. United Fruit Co. (160 Fed. R. 184), 352. American Florists v. U. S. Express Co. (12 I. C. C. 120), 36, 42. American Sugar Refining Co. v. Penn. Sugar Refining Co. (160 Fed. R. 144), 352. American Union Coal Co. v. Penna. Ry. (159 Fed. R. 278), 71. American Warehousemen v. 111. Cent. Ry. (7 I. C. C. 556), 49, 66. Ames V. Kansas (111 U. S. 449), 71. Ames V. Union Pac. Ry. (64 Fed. R. 165), 335, 337. Anderson v. United States (171 U. S. 604), 355, 361. Anthony Salt v. Union Pac. Ry. (5 . I. C. C. 299), 56. Application for Suspension of Fourth Section (7 I. C. C. 593), 61. Armour & Co. v. United States (209 U. S. 56), 30, 68, 120. Armour, etc., v. United States (142 Fed. R. 808, 153 Fed. R. 1), 312. Armour Packing Co. v. United States (153 Fed. R. 1, 630), 48, 120. Atchison, etc., Ry. Co. v. Denver, etc., Ry. (110 U. S. 667), 58. Atchison v. Mo. Pac. Ry. (12 I. C. C. Ill), 42. Atlantic Coast Line v. North Carolin.i (206 U. S. 1), 340. Atlantic Coast Line Ry. v. Wharton, etc. (207 U. S. 328), 42, 44. Baer Bros. Mercantile Co. v. Mo. Pac. Ry. Co. (13 I. C. C. 329), 29, 95, 105. Banana Cases (13 I. C. C. 621), 38. Banner Milling Co. v. N. Y. C. & H. R. Ry. (14 I. C. C. 398), 38, 81. Barden & Swartout v. L. V. Ry. (12 I. C. C. 193), 41. Beef Trust Cases (142 Fed. R. 808), 79. Behlmer v. Lou. & Nash. (71 Fed. R. 835), 60. Belt Railway of Chicago v. United States (No. Dist. of 111., Jan. 23, 1908), 135. Benton Transit Co. v. B. H. St. Joe Ry. Co. (13 I. C. C. 542), 30. Bills of Lading (14 L C. C. 346), 316. Bitterman v. Lou. & Nash. Ry. (207 U. S. 205), 59. Blackman v. Southern Ry. (10 I. C. C. 352), 66. Boching v. Chesapeake, etc. (193 U. S. 442), 32. Boston Fruit & Produce Exchange (4 I. C. C. 664), 68, 80. Boyd v. United States (116 U. S. 616), 366, 367. Brewer v. Central, etc. (84 Fed. R. 257), 55, 60. Brimson v. I. C. C. (154 U. S. 447), 79. Brown v. Houston (112 U. S. 622; 114 U. S. 622), 334. Brown v. Maryland (12 Wheat. 446), 333. Brown v. Walker (161 U. S. 591), 79. Buckeye Buggy Co. v. C, C, C. & St. L. Ry. (9 I. C. C. 620), 49. Budd V. New York (143 U. S. 517), 335. Burgess v. Trans. Freight Bureau (31 I. C. C. 668), 38, 39, 93. Burlington, etc., Ry. v. Dey (82 Iowa, 312), 338. Bumham v. Fields (157 Fed. R. 246) 113. xiii XIV TABLE OF CASES References are to pages. C, B. & Q. Ry. V. United States (157 Fed. R. 830), 120. C, H. & D. Ry. V. I. C. C. (206 U. S. 142), 56. California Com. Asso. v. Wells, Fargo & Co. (14 I. C. C. 422), 49. CaUoway v. L. & N. Ry. (7 I. C. C. 431), 61. Camden Iron Works v. IT. S. (158 Fed. R. 561), 120. Cannon v. M. & O. Ry. (11 I. C. C. 537), 36. Capehart, etc., v. L. & N. Ry. (4 I. C. C. 265), 58, 96. Capital Gas Co. v. Ry. Co. (11 I. C. C. 104), 53. Cardiff Coal Co. v. C, M. & St. P. Ry. (13 I. C. C. 460), 67. Carey et aL v. E. S. Ry. (7 I. C. C. 286), 29. Carr v. N. P. Ry. (9 I. C. C. 1), 66. Cattle Raisers v. C, B. & Q. Ry. (10 I. C. C. 83), 97. Cattle Raisers' Assn. v. M., K. & T. Ry. (12 I. C. C. 1; 13 1. C. C. 418), 84. Cattle Raisers' Assn. of Texas v. Ry. Co. (13 I. C. C. 21, 418), 67. Cattle Raisers v. F. W..& D. C. Ry. (7 I. C. C. 513), 80, 97. Central, etc., v. L; & N. Ry. (192 U. S. 568), 58, 70. Central of Ga. Ry. v. McLendon (157 Fed. R. 961), 71. Central of Ga. Ry. v. United States (157 Fed. R. 893), 134, 135. Central Stock Yards v. L. & N. Ry. (118 Fed. R. 113), 55. Central Yellow Pine Assn. v. V., S. & • R. Ry. (10 1. C. C. 193), 50. Chaffee v. United States (18 Wall. 518), 131. Charges for Transportation, etc. (11 • I. C. C. 129), 32. • Ches. & Ohio Fuel Co. v. United States (115 Fed. R. 610), 358. Chicago, etc., v. Jones (149 111. 361), 338. Chitjago, etc., v. Minnesota (134 U. S. 418), 341. Chicago, etc., v. Osborne (52 Fed. R. 912), 60. Chicago, etc., v. People (77 I. C. C. 443), 338. Chicago, etc., v. Wellman (143 U. S. 389), 341. Chicago, etc., Ry. v. Becker (32 Fed. • R: 849), 335. Chicago, etc., Ry. v. Tompkins (176 U. S. 167), 52. Chicago Great Western v. United States (No. D. of Iowa, May 6, 1908), 134. Chicago & N. W. Ry. v. Dey (35 Fed. R. 866), 338. Chioago, R. I. & P. Ry. v. C. & A. Ry. (3 I. C. C. 450), 50. Chin Bak Kau (186 U. S. 193), 365. Church V. Minneapolis (14 S. Dak. 443), 48. Cincinnati, etc., Ry. Co. v. I. C. C. (162 U. S. 184), 29', 30, 37, 3d, 54; 67,' 92. Cincinnati V. C.,'N. O. & T. P. Ry. (6 I. C. C. 195); 63; Cincinnati v. C, N. O. & T. P. Ry. (7 I. C. C. 180), 40. Cincinnati v. I. C. C. (206 U. S. 142), 37 92 Coe V. Errol (116 U. S. 517), 334. Col. & N. W. -v." United' States (157 Fed. R. 321, 342), 131, 132. Colo. Fiiel'iS; Iion Co.' v. So. Pac. Ry. (6 L:e. C. 488), 40, 319. Colorado Fuel Co. v. So. Pac. Ry. (101 Fed. R. 779), 40, 319. ' Cominercial Club of Duluth v. N. P. Ry;(13I.C. C.'288),42. Consolidated Forwarding Co. v. So. Pab;'Ry. (9-1. C. C. 182), 63. Cooley V. Philadelphia (12 How. 299), 334. Coomes & McGraw v. C, M. & St. P. Ry.-(13I.C.C. 192), 43. Com Belt Meat Pro. Asso. v. C, B. & Q. Ry. (14 I. C.<;. 376), 37, 41. Cosmopolitan Shipping Co. v. Ham- burg-American, etc. (131. C. C. 266), 31, 67, 270. Counselman v. Hitchcock (142 U. S. 547); 79. Covington v. Sanford (164 U. S. 578), 36. Cowan v. Bond (39 Fed. R. 54), 50. Coxe Bros. v. L. V. Ry. (4 I. C. C. 535), 49. Crawford V. N. Y. C. & H. R. Ry. (10 Am. Neg. Rep. 166), 133. Crews V. R. & D. Ry. (1 I. C. C. 401), 40. ' Cutting V. Florida, etc., Ry. (46 Fed. R. 641), 69. Dallas V. G., C. & S. F. Ry. Co. (12 I. C. C. 223), 40. Daniel Ball (77 U. S. 557), 69; (10 Wall. 565) 334. Daniels v. C, R. I. & Pac. Ry. (6 I. C. C. 458), 56. Dash V. Van Kleeok (7 Johns. 499), 98. Davidson v. New Orleans (96 U. S. 97), 335 Debs,' In re (158 U. S. 564), 358. TABLE OF CASES XV References are to pages. Demurrage Charges on Private Cars (13 I. C. C. 378), 316. Denison Light & Power Co. v. M., K. &T. Ry. (10 1. C. C. 337), 40. Detroit, etc., v. I. C. C. (74 Fed. R. 803), 64, 60. Detroit, etc., v. I. C. C. (167 U. S. 644), 54. Divisions of Joint Rates and Allow- ances to Terminal Railroads (10 I. C. C. 385), 49. Dow V. Beidelman (125 U. S. 680), 335. Duncan v. A., T. & S. F. Ry. (6 I. C. C. 85), 40, 63, 81. East Tenn., etc., Ry. v. I. C. C. (181 U. S. 1), 52; 55, 60, 61, 62, 91. Edmunds v. III. Cent. Ry. (80 Fed. R. 78), 70. Edwards v. N., C. & St. L. Ry. (12 I. C. C. 247), 60. ^ Eichenberg v. So. Pac. Co. (14 I. C. C. 250), 42. El Paso So. Ry. v. United States (D. C. Arizona, Jan. 30, 1907), 131. England v. B. & O. Ry. (13 I. C. C. 614), 43, 93. Enterprise Mfg. Co. v. Ga. Ry. (12' I. C.C. 130, 451), 39, 56. Export and Domestic Traffic (8 I. C. C. 214; 10 I. C. C. 55), 30, 56, 67. Export Shipping Co. v. Wabash Ry. (14 I. C. C. 437), 49. Express Companies (1 I. C. C. 349), 63, 92. Farmers', etc., v. N. E. of S. C. Ry. et al. (6 1. C. C. 295), 32, 56. Farmers", etc., v. Northern, etc. (83 Fed. R. 267), 00. Farmers' Warehouse Co. v Lou. & Nash. (12 I. C. C. ■45^), 97. Farrar v. So. Ry. (Ill C. C. 640), 40. Field V. So. Ry. (13 1. C. C. 298), 41, 81. i Fitzgerald v; Fitzgerald (41 Neb. 376), ' 48. -• Fort Smith, etc., v. St. L. & S. F. Ry. ■ (13 L C. C. 651), 38. Frank Parmalee Co. (12 I. C. C. 39), 32 270 Frye'& Bruhn v. No. Pac. (13 I. C. C. 501), 37. Gallogly & Firestine v. C, H. & D. (11 I. C.C. i), 49.- Gardner & Clark v. So. Ry. (10 I. C. C. 342), 55. ' Gardner v. Early (69 Iowa, 42), 79. General Electric Cd. v.N. Y. C.'& H. R. Ry. (14 I. C. C. 237), 85. Genei'al Paper Co. v. United States (201 U. S. 117), 79. Gentry v. A., T. & S. F. Ry. (13 1. C. C. ■171), 67. ' ' ■■ George's Creek Basin Coal Co. v. B. & 0. Ry. (141. C. C. 127), 58. Georgia Banking Co. v. Smith (128 U. S. 181), 99. Georgia Peach, etc., v. A. C. .,L. Ry. (10 I. C. C. 255), 32. ■ Georgia Southern & Florida Ry., Re Petiti6n(13 I. C. U. 134), 138. Gibbons V. Ogden (9 Wheat. 1), 333, 363. • - ■ Gloucester Ferry v. Penna. (114 U. S. 203), 334, 336. Goode Coal Co. v. B. & O. R. R. (10 1. C. C. 226), 56. Goodhue v.C. G. W. Ry. (11 I. C. C. 685), 36, 61. Grain Shippers, etc., v. 111. Cent. .Ry. (8 I. C. C. 158), 41, 92. Granger Cases' (Munn v. Illinois, 94 U. S. 113; Riiggles v. lifinois, 108 U. S. 526; 'Wabash v. Illinois, 118 U. S. 557), 335, 338, 340', 341. Graves v. WaitS (i41!^.T.,162),, 66. Great Northern Ry.*v. United States (208 U. S. 452), 114, 120. Gulf, etc.,' Ry. v.'Hefley (158, U. S. 98), 63, 312. ■ Gulf, etc. J ' Ry. v. Miami, etc. (86 Fed. R. 407), 29. ' Gulf, etc., V. Texas (204 U. S. 403), 335 ■ :: ' Gump V. B. & O. Ry. (14 I. C. 0. 105), 38, 62, 68. ' Haddock v. D., L. & W. Ry. (4 I. C. C. 296), 50. Hale V. Hinkel (201 U. S. 43), 79, 340. Hanley v. Ry. C6. (187 U. S. 617), 29. Harp v. Choctaw, etc., p,y. (61 C. C. A. 414), 41. Harrimah v. I. C. C. (157 Fed. R. 432), 79. Hawkins v. L. S. & M. S. (9 I. C. C. 207), 49. Heard v. Ga. Ry. (1 I. C. C. 428), 50. Hefley v. Ry. Co. (158 P. S.'98), 74. Hennepin Paper Co. (12 I. C. C. 536), ■42. Herrick v. Boquillas (200 U.S. 96), 98. Hewiris V. N. Y., N. H; & H. Ry. (10 I. C. C. 221), 50. ■ Heyman v. So. Ry. (203 U. S. 270), 340. Hbldzkom v. M. C. Ry. (9 I. C. C. 42), 56, 61. ^ Holmes v. So. Ry. (8 I. C. C. 561), 81. Hope Cotton Oil Co. v. Ry. Co. (12 I. C. C. 265), '41.' Hopkins v. United States (171 U. S. '578), 353, 361. ' Houston, etc., Ry. v. Mayes (201 U. S. 321), 340. XVI TABLE OF CASES References are to pages. Howard v. 111. Cent. Ry. (207 U. S. 463), 344. Howell V. N. Y., L. E. & W. Ry. (2 I. C. C. 272), 39. Hughes V. Penna. Ry. (191 U. S. 477), 106. Hunter v. Wood (209 U. S. 205), 47. Hussey v. C, R. I. & P. Ry. (13 1. C. C. 366), 31, 81, 97. HutchinBon Salt Case (10 I. C. C. 1), 49. Hutting V. Massachusetts (183 U. S. 553), 365. Hydraulic Press Brick Co. v. St. L. & S. F. Ry. Co. (13 I. C. C. 342), 68. Illinois Central Ry., Complaint of (12 I C C 71 32 III. Cent.' Ry. v! I. C. C. (206 U. S. 441), 37, 39, 41, 71, 84, 92. 111., etc., Ry. V. Stone (20 Fed. R. 468), 335. Immigrant Case (10 I. C. C. 13), 63. Import Rate Case (162 U. S. 197), 30, 61. Independent Refiners' Assn. v. N. Y. & P. Ry. (4 I. C. C. 162), 42. Independent Refiners' Assn. v. W. N. Y. & P. (5 I. C. C. 415), 56, 63, 92. Independent Refiners, etc., v. West- em Ry. (6 I. C. C. 378), 92. Inman v. S. A. L. Ry. (159 Fed. R. 960), 109. Interstate Com. Com. v. A:, T. & S. F. Ry. (50 Fed. R. 295), 91. V. A., T. & S. F. Ry. (149 U. S. 264), 91. V. Alabama (168 U. S. 144, 165), 29, 48, 49, 51, 54, 65, 60, 61, 62. V. Alabama, etc. (74 Fed. R. 715), 36, 54. V. Baird (194 U. S. 24), 79, 366. V. B. & O. Ry. (145 U. S. 263), 41, 48, 49, 54, 91, 335. V. B., Z. & C. Ry. (77 Fed. R. 942), 30. V. Belleaire, etc. (77 Fed. R. 942), 106. V. Brimson (154 U. S. 447), 60, 79, 335, 363, 366, 367. V. Chicago, etc. (81 Fed. R. 783), 105. V. Chicago, etc. (94 Fed. R. 272), 91. V. Chicago, etc. (103 Fed. R. 249), 66. V. Chicago, etc. (186 U. S. 320), 66. V. Chicago Great Western Ry. (209 U. S. 108), 63. Interstate Com. Com. v. Cincinnati (162 U. S. 184), 91, 337. V. Cincinnati, etc., Ry. (167 U. S. 479, 511), 36, 40, 79, 339, 341. V. Cincinnati, etc., Ry. (56 Fed. R. 937), 60. V. Cincinnati, etc. (64 Fed. R. 981) 79 91. V. Cincinnati' etc. (167 U. S. 479), 00. V. Cin., etc., Ry. (124 Fed. R. 624), 55. V. C, N. O. & T. P. Ry. (76 Fed. R. 183), 79. V. C. & O. Ry. (200 U. S. 361), 42. V. Detroit, etc., Ry. (167 U. 8. 633), 41, 49. V. East Tenn., etc., Ry. (86 Fed. R. 107), 29, 36, 60, 91. V. Harriman (157 Fed. R. 432), 79. V. 111. Cent. Ry. (206 U. S. 441), 37, 39, 41, 71, 84, 92. V. IndianapoUs (99 Fed. R. 472), 41. V. L. S. & M. S. (197 U. S. 536), 105. V. L. V. Ry. (49 Fed. R. 177), 91. V. Lehigh Valley Ry. (74 Fed. R. 784), 40. V. Louisville, etc. (73 Fed. R. 409), 29, 36, 54, 65, 79. V. Lou. & Nash. Ry. (102 Fed. R. 709), 92. V. Lou. & Nash. Ry. (118 Fed. R. 613), 92. V. Lou. & Nash. Ry. (190 U. S. 273), 55, 56, 61. V, Nashville, etc., Ry. (120 Fed. R. 935), 40. V. New Haven & Hartford Ry. (200 U. S. 361), 120. v. S. P. Ry. (132 Fed. R. 829), 63. V. Seaboard Air Line Ry. (82 Fed. R. 663), 105. V. So. Pao. Ry. (123 Fed. R. 696), 91 92 V. So. Ry. '(105 Fed. R. 703), 36, 64. V. So. Ry. (117 Fed. R. 741), 36, 54, 91. v. Western, etc. (88 Fed. R. 186), 55, 60. v. Western, etc. (93 Fed. R. 83), 48, 64, 65. Interstate Stockyard v. Indianapolis, etc. (99 Fed. R. 473), 65. In the Matter of Legal Rates, 310. Investigation of Grand Trunk Ry. of Canada (3 L C. C. 89), 69. Jackson v. Van Zandt (12 Johns. 169), 98. TABLE OF CASES xvii References are to pages. Jay V. St. Louis (138 U. S. 1), 71. Johnson v. So. Pac. Ry. (196 U. S. 1; 117 Fed. R. 462), 131, 132, 134. Joint Traffic Assn. Case (171 U. S. 505), 63. Jones V. St. L. & S. F. Ry. (12 I. C. C. 144), 42. Junod V. Chicago, etc. (47 Fed. R. 290), 70. Kansas v. Atchison, etc. (112 U. S. 414), 71. Kemble v. B. & O. Ry. (8 1. C. C. 110), 51, 67. Ken. & Ind., etc., v. L. & N. Ry. (37 Fed. R. 567), 336. Kentucky v. Lou. & Nash. Ry. (37 Fed. R. 567), 69, 79, 91, 92. Kilboum v. Thompson (103 U. S. 168), 366, 367. Kindel v. Adams Exp. Co. (13 I. C. C. 475), 37, 309. Kinnaney v. Terminal, etc. (81 Fed. R. 802), 72. Kiser Co. v. Central of Ga. Ry. (158 Fed. R. 193), 71. Knight, E. C, Co. v. United States (156 U. S. 1), 350. Koch Secret Service v. Lou. & Nash. Ry. (13 I. C. C. 523), 41. Kochler, Ex parte (30 Fed. R. 869), 29. L. & N. Ry. V. I. C.C. (99 Ky. 132), 337. La Salle, etc., v. Chicago & N. W. Ry. (13 I. C. C. 610), 68, 85, 93. Laning-Harris v. M. P. Ry. (13 I. C. C. 154), 68. Legal Rates, 310. Lehigh Valley v. Rainey (112 Fed. R. 487), 70. Lehigh Valley Ry. v. Pennsylvania (145 U. S. 192), 29. Lenon, In re (166 U. S. 548), 70. Leonard v. K. C. & S. Ry. (13 I. C. C. 573), 29, 30, 32, 105. Linco^ Creamery Co. v. U. P. Ry. (5 I. C. C. 156), 40. Little Rock, etc., v. St. Louis (63 Fed. R. 775), 58, 59. Little Rock., etc., v. St. Louis, etc. (59 Fed. R. 407), 59. Liverpool Ins. Co. v. Mass. (10 Wall. 667), 365. Loewe v. Lawlor (208 U. S. 274), 357. Logan V. Postal Tel. Co. (157 Fed. R. 570), 340. Lou. & Nash. v. R. R. Com. of Ala. bama (157 Fed. R. 944), 71. Loud v. S. C, etc., Ry. (5 I. C. C. 529), 40, 49. Louisville & Nashville Ry. v. Behlmer (175 U. S. 648), 30, 51, 60, 61, 62, 67, 91, 92. Louisville & Nashville Ry. v. Brown (123 Fed. R. 926), 36. Louisville v. R. R. Co. (19 Fed. R. 679), 335, 337. Louisville v. R. R. Com. (33 L. A. R. 209), 00. Loup Creek Colliery Case (12 I. C. C. 471), 67, 84. Lundquist v. Grand Trunk, etc. (121 Fed. R. 915), 48. Lykes Steamship Line v. Commercial Union et als. (13 I. C C. 310), 31. Macbride Coal, etc., v. C, St. P., M. & D. Ry. (13 I. C. C. 571), 43. Macloon v. C. & N. Ry.(5 1. C. C. 84),97. Manning v. C. & A. Ry. (13 I. C. C. 125), 79. Manufacturers', etc., v. M. & St. L. Ry. (4 I. C. C. 79), 40. Marbury v. Madison (1 Cranch, 137), 366. Marshall Oil Co. v. C. & N. W. (14 I. C. C. 210), 41. Martin v. C, B. & Q. Ry. (2 I. C. C. 31), 67. Masurite, etc., v. P. & L. E. Ry. (13 I. C. C. 405), 41. McAlester v. Henkel (201 U. S. 90), 79. McDonald v. Hovey (110 U. S. 619), 54. McLean v. Denver, etc., Ry. (203 U. S. 38), 340. McMillan v. Western Classification, etc. (4 I. C. C. 276), 81. McNiel V. So. Ry. Co. (202 U. S. 643), 41, 340. McRae Terminal Co. v. So. Ry. (12 I. C. C. 270), 41. Merchants' Cotton Press v. Insurance Co. (151 U. S. 368), 48, 50. Michigan Salt Case (10 I. C. C. 148), 49, 56. Milk Producers v. D., L. & W. Ry. (7 I. C. C. 92), 29. Milwaukee v. C, M. & St. P. Ry. (7 I. C. C. 481), 40. Milwaukee v. F. & P. M. Ry. (2 1. C. C. 653), 67. Minneapolis v. Beckwith (129 U. S. 26), 335. MinneapoUs v. G. N. Ry. (5 I. C. C. 571), 81. Minneapolis v. Minnesota (186 U. S. 357), 37. Mississippi V. Illinois Central Ry. (203 U. S. 336), 340. Missouri, etc., v. Texas, etc. (31 Fed. R. 862), 81. Missouri & Kansas Shippers' Asso. v. A., T. & S. F. Ry. (13 I.jC. C. 411), 92, 99. XVIU TABLE OF CASES References are to pages. Mobile County v. Kimball (102 U. S. 691), 334. Mobile & Ohio Grain Rate Case (9 I. C. C. 373), 50. Mobile & Ohio Ry. v. Dismukes (94 Ala. 131), 66. Mobile & Ohio Ry. v. Sessions (28 Fed. R. 592), 336. Montague v. Lowry (193 IT. S. 38), 358. Montg. Freight Bureau v. W. of Ala. (14 I. C. C. 150), 38, 67, 84. Morrill v. U. Pac. Ry. (6 I. C. C. 121), 40. Mottley V. Louisville & Nashville R. R. (150 Fed. R. 407), 32. Mulcahy v. Queen, L. R. (3 H. L. 306), 357 Munn'v. Illinois (94 U. S. 113), 335, 338, 340, 341. Murdock v. Franklin Ins. Co. (33 W. Va. 407), 98. Murray v. Chicago, etc. (62 Fed. R. 24), 70. N. & W. Ry. V. Sims (191 U. S. 441), 361. National Petroleum Asso. v. C, M. & St. P. Ry. (14 I. C. C. 284), 91. Nelson v. United States (201 U. S. 92), 79. New Albany Fur. Co. v. M., J. & K. C. Ry. (13 I. C. C. 594), 37. New Orleans Cotton Exchange v. C, N. O. & T. P. Ry. (4 I. C. C. 694), 67. New Orleans v. C, N. O. cfe T. P. Ry. (2 I. C. C. 375), 39. New Orleans v. 111. Cent. Ry. (2 I. C. C. 777), 36. • New Orleans v. 111. Cent. Ry. (3 I. C. C. 534), 36, 40. New Orleans v. T. P. Ry. (10 I. C. C. 327), 40. Newspaper Employees (12 I. C. C. 15), 32. New York Board of Trade v. Pa. Ry. (4 I. C. C. 447), 30, 60. New York, etc., Ry. v. Bristol (151 U. S. 556), 334, 335. New York Hay Exchange Asso. v. Penna. Ry. (14 I. O. C. 178), 43, 49. New York, N. H. & H; Ry. v. Piatt, Receiver (7 I. C. C. 325), 67. New York Produce Exchange v. N. Y. C. & H. R. Ry. (3 I. C. C. 137), 67. Nicola, Stone & Myers Co. v. L. & N. Ry. (14 I. C. C. 199), 93, 94, 96, 99. Northern Securities Co. v. United States (193 U. S. 197), 357, 358, 363, 365. Oklahoma & Ark. Coal Traffic Bureau v. C, R. I. & Pac. Ry. (14 I. C. C. 216), 37. ! Order of Railway Conductors (1 I. C. C. 8), 81. Oregon, etc., v. Northern, etc. (51 Fed. R. 475), 42, 58, 59'. Qregon & Washington Lumber, etc., v. U. P. Ry. (14 I. C. C. 1), 39. Osborne v. C. & N. W. Ry. (48 Fed. R. 49; 52 Fed. R. 912), 92, 94. Otis v. Ludlow (201 U. S. 147), 79. Ottumwa Bridge Co. v. C, M. & St. P. R,y. (14 i: C. C. 121), 96. Pacific Coast Lumber, etc., v. Jfo. Pac. Ry. (14 L C. C. 23, 51), 39. Paine v. L. V. Ry. (7 I. C. C. 218), 50. Parkhurst v. Penna. Ry. (2 I. 0. C. 131), 69. Parks v! Cincinnati, etc., Ry. (10 I. C. C. 47),56. Parsons v. C; & N. W. Ry. (167. U. S. 447),,70, 92, 94. Party Rate Tickets (1.2 I. C. C. 95; 145 U. S.,263; 13 1. C. C. 298), 41, 49. Patten v. United' States ('155' U. S. 438), 75. .. Paul v. Virginia (8 Wall. 168), 365. Payne-Gardner Co. v. L. & N. Ry. (13 L C. C; 638), 66. Penna. Millers', etc., v. P. & R. Ry. (8 I. C. C. 660), 66.' ' "' Penna. Ry. v. 'Hughes (191 U. S. 477), 106. ' ' Penna. Sugar Refining Co. v. American Sugar Refining Co. (160, Fed. R.' 144), 362. Pensacola, etc., v. State (3 L. R. A. ■ 661), 336. Pensacola, etc., v. Western, Union, etc. (96 U. S. 9), 334. People V. New York, etc., Ry. (104 NL Y. 58), 335. Perkins v. No. Pac. Ry. (155 Fed. R. 445), 47, 92. Perry v. F., C. & Pa. Ry. (5 I. C. C. 97), 96. Peters v. United States (94 Fed. R. 127), 75. Phillips, Bailey & Co. v. Lou. & Nash. Ry. (8 I. C. C: 93), 61, 81. ' Phillips, etc., v. So. Pac. Ry. Co. (13 I. C. C. 644), 56, 62. Phillips v. G. T. W. Ry. (11 I. C. C. 659 40 Pitcai'rii Coal Co. v. B. & O. Ry. (154 Fed. R. 108, 497), 56. Pittsburg Plate Glass Case (13 I. C. ,C. 87), 3D, 40,- 49, '62, 55, 56, 61, '62.' Piatt v: Le'Cocq (158J'ed*. R.'72S), 69. Pond-Deck v. Spencer (86 ,Fed. ' R. 846), 66. Pooling Freights (115 Fed. R. 588), 63, 75. TABLE OF CASES XIX References are to pages. Poor Grain Oo. v. Ry. Co. (12 I. C. C. 418), 68. Potlatch Lumber Co. v. S. F. & N. Ry. (157 Fed. R. 588), 47, 71, 92. Potter Mfg. Co. v. C. & G. T. Ry. (5 I. C. C. 514), 40. Power of Train Brakes (11 I. C. C. 429), 131. Powhatan Coal Co. v. N. &^. Ry. (13 I. C. C. 69), 56. . Pratt Lumber Co. v. C, I. & L. Ry. (10 I. C. C. 29), 55. Preston & Davis v. D., L. & W. Ry. (1.2 I. C. C. 114), 42. Procedure in Cases at Issue (1 I. C. C. 223), 81. Proctor & Gamble V. C, H. & D. (4 I. C. C. 87), 49. Proctor & Gamble v. C, H. & D. (9 I, ,C. C. 440), 49. Producers' Pipes Line v. St. Louis, etc., Ry,(12LC. C,186),,81. Proposed Advance of Freight Rates (9 I, C. C. 382), 40, 41. Providence Coal' Co. v. P. & W. Ry. (I I. C. C, 107), 49. Publication & Filing of Tariffs, etc. (10 I, C. C. 55), 30, 67. Pueblo Trans. Asso. v. So. Pao. Co. (14 I. C. C. 82), 67, 93, 95. Quimby V. Maine Central Ry. (13 I. .C. C. 246), 50, 56, 67. Rihway Valley Ry. v. D., L. & W. Ry. (14 I, AC. 191), 41. Rail & River Coal Co. v. B. & O. Ry. (14 I. C. C, 86), 56, 58. R^rilroad Com. v. Clyde Steamship Co. (5 L C. C, 391).,.67. Railroad Com. of "Kansas v. A., T. & S. F. Ry. (8 J. C. C. 304), 56. Railroad Com. of Ohio v. Hock- ing Valley Ry. (12 I. C. C. 398), 56. Railroad Comi. v. Oregon (17 Ore. 65), 335. Railroad Commission Cases (116 U. S. 336), 341. „ Railroad-Telegraph Companies (12 I. C. C. 10), 32. Raihmad v. Mississippi (102 U. S. 135), 7.1.' Randolph Lumber Co. v. S. A. L. Ry. (14 I. C. C. 338; 13 I. C. C. 601), 61, 67. Ratican v. Terminal Asso. (114 Fed. R. 66^), 92, 94. Raymond v. C, M. & St. P. Ry. (1 I. C. C. 230), 61. Re Legal Rat^s, 310. Reagan v. Farmers, etc. (154 U. S. 362), 39, 335, 341. Red Cloud Mining Co. v. So. Pao. Ry. (9 I. C. C. 216), 66. Red Rock Fuel Co. v. B. & O. R. R. (11 1. C. C. 438), 41. Refiners v. W. N. Y. & Pa. Ry. (6 I. C. C. 378), 56, 63, 92. Refrigeration of Fruit, etc. (10 I. C. C. 360), 32. Released Rates, In re (13 I. C. C. 650), 109. Rhinelander Paper Co. v. No. Pac. Ry. (13 I. C. C. 633), 38, 56. Rice V. C, W. & B. Ry. (3 I. C. C. 186), 79. Rice V. Georgia Ry. (14 1. C. C. 75), 59. Rice V. L. & N. Ry. (3 I. C. C. 162), 41. Rice V. W. N. Y. & Pa. Ry. (4 I. C. C. 131), 49. Robbins v. Shelby Coxmty, etc. (120 U. S. 489), 336. Royal Coal- & Coke Co. v. So. Ry. (13 I. C. C. 440), 56. Ruggles v. Illinois (108 U. S. 5S6), 335. Ruttle V. Pere Marquette Ry. (13 I. C. C. 179), 50, 55. Savannah v. C. S. Ry. (7 I. C. C. 601), 41. Schlemmer v. Buffalo, etc., Ry. Co. (205 U. S. 1), 133. Seaboard Air Line Ry. v. R. R. Com. of Alabama (155 Fed. R. 79?), 37. Seaboard Air Line v. Seegers (207 U. S. 73), 110. Shamberg v. D., L. & W. Ry. (4 I. C. C. 630), 49. Sheldon v. Wabash, etc., Ry. (105 Fed. R. 785), 70. Shiel & Co. V. 111. Cent. Ry. (12 I. C. C. 210), 39, 50, 68. Shinkle v. L. & N. Ry. (62 Fed. R. 690), 91. Sidman v. R. & D. Ry. (3 I.' C. C. 512), 50. Smeltzer v. St. L. & S. F. Ry. (158 Fed. R. 649), 106. Smith V. Ames (169 U. S. 546), 36, 341. Smyth V. Ames (169 U. S. 466), 341. So. Pac. V. Colorado Fuel Co. (101 Fed. R. 779) 91. So. Pac. V. I. C. C. (200 U. S. 636), 60. So. Pac. Co., In le (156 Fed. R. 1001), 148. Social Circle Case (162 U. S. 184), 60, 67. Solvay Process Co. v. D., L. & W. Ry. (14 I. C. C. 246), 85. Sorrel v. Central Ry. (75 Ga. 509), 338. Sou. Ry. V. Tift (206 U. S. 428), 71, 93. Southern Pac. Co. v. I. C. C. (200 U. S. 536), 63. TABLE OF CASES Keferences are to pages. Southern Pine Lumber Co. v. So. Ry. (14 I. C. C. 195), 92, 95. Southern Ry. v. McNeill (155 Fed. R. 756), 47. Southwestern, etc., v. McBride (185 U. S. 499), 98. St. L. & Pac. Ry. v. 111. (118 U. S. 557), 341. St. L., I. M. & So. Ry. v. Taylor (210 U. S. 281), 131, 133. St. Louis V. A., T. & S. F. Ry. (9 I. C. C. 318), 49. St. Louis, etc., v. Gill (156 U. S. 649), 341. St. Louis V. L. & N. Ry. (65 Fed. R. 39), 59. St. Louis & S. F. Ry. (8 I. C. C. 301), 67. Standard Oil Co. v. United States (155 Fed. R. 305), 92. Starin v. New York (115 U. S. 248), 71. State, etc., v. Chicago, etc., Ry. (38 Minn. 281), 335. State, etc., v. Fremont, etc., Ry. (22 Neb. 313), 335. State V. New Haven, etc., Ry. (37 Conn. 153), 335. Stedman v. C. & N. Ry. (13 I. C. C. 167), 67. Stone V. Farmers (116 U. S. 307), 335, 338, 341. Stone V. Natchez, etc., Ry. (62 Miss. 646), 00. Stoutenberg v. Hennick (129 U. S. 141), 336. Stowe-FuUer Co. v. Pa. Co. (12 I. C. C. 215), 56. Suffem, Hunt & Co. v. I., D. & W. Ry. (7 I. C. C. 255), 97. Suspension of Fourth Section (7 I. C. C. 593), 61. Swift V. Philadelphia (64 Fed. R. 59), 72. Swift V. United States (111 U. S. 28), 95 Swift V. United States (196 U. S. 395), 357 Taylor v. St. L., I. M. & So. Ry. (210 U. S. 281), 133. Tayntor Granite Co. v. Montpelier, etc. (14 I. C. C. 136), 37. Tecumseh Celery Co. v. C, J. & M. Ry. (5 I. C. C. 663), 81. Tennessee v. Davis (100 U. S. 257), 71. Tex. & Pac. v. Mugg (202 U. S. 242), 312. Texas, etc., v. Cisco, etc. (204 U. S. 449), 67. Texas & Pac. Ry. v. Abilene Cotton Oil Co. (204 U. S. 426), 37, 71, 93, 112, 312, Texas & Pacific Ry. v. I. C. C. (162 U. S. 197), 29, 36, 51, 52, 54, 55, 60, 61, 62, 79. Thatcher v. D. & H. Co. (1 I. C. C. 152), 51. Through Routes and Joint Rates (12 I. C. C. 163), 67, 68. Thurber v. N. Y. C. & H. R. Ry. (3 I. C. C. 473), 39, 49. Tift V. So. Ry. (123 Fed. R. 730, 138 Fed. R. 735, 206 U. S. 428), 40, 63, 94. Tifton V. L. & N. Ry. (9 I. C. C. 160), 41. Toledo, etc., Ry. v. Penna., etc., Ry. (54 Fed. R. 746), 71, 75. Topeka Banana Dealers', etc., v. St. L. & S. F. Ry. (13 I. C. C. 620), 38. Tozer v. United States (52 Fed. R. 917), 338. Traer, Receiver, v. C. & A. Ry. (13 I. C. C. 451), 56. Train Brakes, Power of (11 I. C. C. 429), 131. Transportation of Grain (7 I. C. C. 240), 50. Transportation of Cotton (8 I. C. C. 121), 50. Uckisson v. Davenport (83 Mich. 211), 98. Union Bridge Co. v. United States (204 U. S. 364), 000. Union Pac. Ry. v. Goodridge (149 U. S. 680), 337. Union Pac. Ry. v. United States (117 U. S. 355), 52. United States v. Addyston Pipe, etc. (175 U. S. 211), 365. V. American Sugar Ref. Co. (202 U. S. 577), 98. V.Anderson (171 U. S. 604), 355 V. Armour & Co. (142 Fed. R. 808), 79, 366, 367. V. Armour & Co. (209 U. S. 56), 30, 68, 120. V. Atlantic Coast Line (153 Fed. R. 918), 131. V. B. & O. Ry. (153 Fed. R. 997), 41, 75. V. Benson (70 Fed. R. 591), 75. V. Belt Ry. of Chicago (No. Dist. of 111., Jan. 23, 1908), 135. V. C, B. & Q. Ry. (156 Fed. R. 180), 134. V. C, M. & St. P. Ry. (149 Fed. R. 486), 133, 134. V. C. & N. W. Ry. (157 Fed. R. 616), 132. V. C, P. & St. L. (143 Fed. R. 353), 131, 133. TABLE OF CASES XXI References are to pages. United States v. Camden Iron Works (158 Fed. R. 561), 120. V. Cent. Ver. (157 Fed. R. 291), 120. V. Central of Ga. Ry. (157 Fed. R. 893), 134, 135. V. Chicago Great Western (D. C. for No. Dist. Iowa, May 6, 1908), 134. V.Chicago & Litchfield (11 I. C. C. 698), 000. V. Col. & N. W. (157 Fed. R. 321, 342), 131, 132. V.Colorado & N. W. Ry. (157 Fed. R. 321), 131. V. Coombs (12 Pet. 79), 333. V. Cruikshank (92 U. S. 542), 75. V. D., L. & W. Ry. (152 Fed. R. 270), 114, 120. V. Debs (64 Fed. R. 723), 36. V. Delaware, etc., Ry. (40 Fed. R. 101), 48, 55, 113. V. Downing (76 C. C. A. 381), 114, 120. V. E. C. Knight Co. (156 U. S. 1), 350, 361. V. El Paso So. Ry. (Second Dist. of Arizona, Jan. 30, 1907), 131. V. General Paper Co. (201 U. S. 117), 79. V. Great No. Ry. (145 Fed. R. 438), 132. V. Great Northern Ry. (150 Fed. R. 229), 134. V. Great Northern Ry. (208 U. S. 452; 157 Fed. R. 288), 120. V. Hanley (71 Fed. R. 673), 48. V. Heth (3 Cranch, 399), 98. V.Hopkins (171 U. S. 578), 353. V. I. H. Ry. (157 Fed. R. 565), 00. V. 111. Cent. Ry. (156 Fed. R. 182), 132 V. Joint' Traffic, etc. (171 U. S. 505), 352, 357. V. L. & N. Ry. (156 Fed. R. 193, 195), 134. V. Mo. Pac. Ry. (85 Fed. R. 903), 91. V. Morris (40 Fed. R. 101), 58. V. Morseman (42 Fed. R. 448), 29. V. N. Y. C. & H. R. Ry. (157 Fed. R. 293), 120. V. Nelson (201 U. S. 92), 79. V. New York Central, etc. (153 Fed. R. 630), 68, 114, 120. V. New York Central Ry. (146 Fed. 298), 120. V. No. Pac. Term. Co. of Oregon (144 Fed. R. 861), 131. United States v. Norfolk (109 Fed. R. 831), 54, 55, 113. V. Norfolk, etc. (114 Fed. R. 682), 113. V. Northern Securities Co. (193 U. S. 197), 357, 358, 363, 365. V. P. & R. Ry. (160 Fed. R. 696), 133 134 V. Peters (94 Fed. R. 127), 75. V. Pittsburg, etc. (11 I. C. C. 696), 00. V. Ry. Co. (81 Fed. R. 783), 30. V. Seaboard (82 Fed. R. 563), 30. V. Simmons (96 U. S. 360), 75. V. So. Ry. (135 Fed. R. 122), 132, 134. V. Standard Oil Co. (155 Fed. R. 305), 120. V. St. L., I. M. & So. Ry. (D. C. for W. D. Tenn., June 11, 1907), 133. V. Swift & Co. (196 U. S. 375), 357. V. Texas, etc. (162 U. S. 1), 92. V. Tozer (39 Fed. R. 369), 48, 49. V. Trans-Mo. Freight Assn. (166 U. S. 290), 63, 352, 357. V. Union Pacific Ry. (104 U. S. 662), 36. V.Union Pacific Ry. (117 U. S. 355), 52. V. Union Stock Yards of Omaha (Dist. of Neb., Feb. 21, 1908), 133 132 V. Vacuum Oil Co. (158 Fed. R. 536), 120. V. Wabash, 133. V. West Va. N. Ry. (125 Fed. R. 253), 56. V. Wheeling & L. E. Ry. (No. Dist. of Ohio, June 16, 1908), 133 134 V. WilUams (i59 Fed. R. 310), 36. V. Workingmen's Amalgamated Council (26 L. R. A. 158), 358. United States Fidelity, etc., v. Struth- ers. Wells & Co. (209 U. S. 537), 98. Vacmmi Oil Co. v. United States (158 Fed. R. 536), 120. Van Patten v. Chicago, etc. (74 Fed. R. 981), 70. Van Patten v. Chicago, etc. (81 Fed. R. 547), 29. Veazie v. Moore (12 How. 574), 333. Victor Fuel Co. v. A., T. & S. F. (14 I. C. C. 119), 85. Voelker v. C, M. & St. P. (129 Fed. R. 522; 116 Fed. R. 867), 134. Wabash, etc., v. Illinois (118 U. S. 557), 340, xxn TABLE OF CASES References are to pages. Walker v. B. & O. Ry. (12 1. C. C. 196), 50,. ■ • ,., , , - „ y . Ward V. Mo. Pac. Ry. (158 Mo. 226), 66. Warren Mfg. Co. v. So. Ry. (12 I. C. C. 3^1),, 3,9, 63, WaxeJUbaum V. A. C. L. (12 I. C. C. 178), 32, 41, 42. Welton V. Missouri (91 U. S. 280), 333. West Va., etc., v. United States (125 Fed. R. 252), 56. West Va.,; etCi, v. United States (134 Fed. R.' 198), 56. Western, etc., V. Penna., etc. (137 lied. ,R. 343), 92, ,, Western Oregon Lumber, etc,, v. So. Pac. Ry. (14 I. C C. 69), 37, 40. Wholesale Fruit, etc., v, A., T. & S. F. Ry. (14 I. C. C. 410), 42. Wichita V. A.,, T. & S. F. Ry. (9 1. C. C. 534), 56, 61. Wichita v. U. P. Ry. (10 I. C. C. 35), 56. , Wight V. United States (167 U. S. 512), 48„53. , ... ^,.. ^ Wilson Produce Co. v. Penna. Rv. (14 I. C. C. 170), 43, 49, 58. Winchester, etc,, v. Croxton (33 L. R. A. 177), 337. Winkler, v.Phila. & Read. Ry. (53 Atl. Rep. 90), 131. Wrigley v^ C, C, C. & St. L. (10 I. C. C. 412), SO. .;. V, Wyman, etc,,, v. Boston & Maine (13 I, CC. 258), 42., ,,„;,,„ . Young, Ex _parte, Minnesota Rate Case (209 U. S! 123), 47, 120. THE LAW RELATING TO THE INTERSTATE COMMERCE COMMISSION CHAPTER I AN ANALYSIS OF THE ACT TO REGULATE COMMERCE Art. I. Structure and Organization Sec. A. Title of Act Sec. B. Purposes of Act Sec. 0. To Whom the Act Applies Sec. D. Scope of Act Sec. E. In Whom Powers Vested Sec. F. Qualifications of Commissioners Sec. Q. Term of Office Sec. H. Salary of Oommissioners Sec. I. Vacancies Sec. 3. Removal Art. n. Powers Delegated to the Commission Sec. A. Internal Powers Sec. B. External Powers Art. HI. Duties of Common Carriers Sec. A. Penalty for Failure to Perform Sec. B. Enforcement of Penalty Art. IV. Limitations Upon Common Carriers Sec. A. Penalty for Violation Sec. B. Enforcement of Penalty Art. V. Procedure Before the Commission Sec. A. Petition Sec. B. Notice Sec. C. Evidence Sec. D. Decision, Order or Requirement Sec. E. Modification of Orders Sec. F. Supplemental Orders 2 THE ACT TO REGULATE COMMERCE Sec. G. Enforcement of Orders (1) Order to Pay Money (2) Order Other Than to Pay Money Sec. H. Rehearing Sec. I. Special Counsel Art. VI. Civil Procedure in the Courts in Aid of the Decisions, Orders and Requirements of the Interstate Com- merce Commission Sec. A. Commescement of Proceedings Sec. B. Venue of Suits Sec. 0. Service of Process or Notice Sec. D. Enforcement of Order to Pay Money Sec. E. Enforcement of Order Other Than to Pay Money Sec. F. Compulsory Process Sec. Q, Mandamus Sec. H. Suits for Recovery of Forfeitures Sec. I. Appeal Sec. J. Precedence of Cases Art. VII. Elkins Act. Section 3 Civii Procedure in the Courts by the Interstate Com- merce Commission Against Carriers for Departure From Published Rates or Unlawful Discrimination Sec. A. Petition Sec. B. Venue Sec. C. Notice Sec. D. Parties Sec. E. Hearing Sec. F. Enforcement Sec. O. Compulsory Process Sec. H. Appeal Art. VIII. Miscellaneous Provisions Sec. A. Examiner Divulging Facts Sec. B. Immunity Provisions Sec. C. Interchange of Traffic Sec. Jj. Interpretation Clauses Sec. E. Liability of Carrier Sec. F. Limitation of Proceedings Sec. a. Notices Sec. H. Reparation Sec. I. State Railroad Commissions Sec. J. Witness Fees THE ACT TO REGULATE COMMERCE 3 ART. I. STRUCTURE AND ORGANIZATION Sec. A. Title of Act The Act to Regulate Commerce. Sec. B. Purposes of Act ^ 1. To prescribe the duties and impose limitations upon certain common carriers. v 2. To create the Interstate Commerce Commission, and impose upon it the duty, and invest it with power to execute and enforce the provisions of the Act. Sec. 0. To Whom the Act Applies 1. Carriers of oil or other commodity by pipe lines, except water or gas. 2. Carriers of oil or other commodity partly by pipe lines and partly by rail- road. 3. Carriers of oil or other commodity partly by pipe lines and partly by water. 4. Carriers of passengers or property wholly by railroad. 5. Carriers of passengers or property partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment. p. Carriers 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. 7. Express companies. 8. Sleeping car companies. Sec. D. Scope of Act, or Field of Operations of Carriers 1. Pipe lines (no territory specified). 2. Partly by pipe lines and partly by railroads (no territory specified). 3. Partly by pipe lines and partly by water (no territory specified). 4. Railroads, (a) United States. (b) From United States to an adjacent foreign country. (c) From United States through a foreign country to any other place in United States. 5. Partly by railroad and partly by water when both are used under a common control, management or arrangement for a continuous carriage or shipment. (a) United States. (b) From United States to an adjacent foreign country. (c) From United States through a foreign country to any other place in United States. 6. Carriers 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 trans- shipment, 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, (a) United States. 4 THE ACT TO REGULATE COMMERCE 7. Express companies (ro tesrritqry specified). 8. Sleeping car companies (no territory specified). Sec. E. In Whom Powers Vested 1. Commission consisting of seven members. 2. A majority of the Commission shall constitute a quorum for the transac- tion of business. 3. Either member of the Commission may administer oaths and affirmations and sign subpoenas. 4. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission. 5. One or more of the Commissioners may 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. 6. Special agents or examiners employed by the Commission have power to administer oaths, examine witnesses and receive evidence- Sec. F. Qualifications of Commissioners 1. Appointed by President by and with the advice and consent of the Senate. 2. Not more than four shall be appointed from the same political party. 3. Shall not be in the employ of, or holding any official relation to a carrier, or own stock or bonds thereof, or in any manner pecuniarily interested therein. 4. Shall not engage in any other business, vocation or employment. 5. Shall not participate in any hearing or proceeding in which he has any peoimiary interest. Sec. O. Term of Office 1. Seven years. Sec. H. Salary 1. $10,000 annually to each member. 2. Payable in the same manner as judges of the courts of the United States. Sec. I. Vacancies 1. New appointment for imexpired time of Commissioner whom he shall succeed. 2. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission. Sec. J. Remoyal 1. May be removed by the President for (1) Inefficiency. (2) Neglect of duty. (3) Malfeafance in office. THE ACT TO REGULATE COMMERCE 5 Art. II. POWERS DELEGATED TO THE COMMISSION Sec. A. Internal Powers or Those Which Relate to the Organization and Government of the Commission 1. To conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. 2. To make, or amend general rules or orders for the regulation of its busi- ness, includihg forms of notice and service thereof. 3. To hear any party in person or by attorney. 4. To record every vote and official act. 5. To have public proceedings upon request. 6. To have a seal. 7. Any member may administer oaths and sign subpoenas. Sec, 17, 8. To appoint a secretary. 9. To employ and fix compensation of other employees. 10. To hire offices and procure supphes. 11. To present itemized vouchers for expenses in making investigations or upon official business elsewhere than Washington. Sec. 18. 12. To hold its general sessions in Washington. 13. To hold special sessions in any part of United States by one or more of the Commissioners. Sec. 19. 14. To make annual reports to Congress. Sec. 21. Sec. B. External Powers or Those Which Relate to the Duties and Liabilities of Common Carriers 1. To hear and investigate the complaints for failure to make switch con- nections, and determine as to the (a) Safety, (b) Practicability, (c) Justification, and (d) Compensation therefor. 2. To make an order of comphance. Sec. 1. 3. To modify long and short haul provision. Sec. 4. 4. To allow changes in schedules upon less than iJiirty days' notice. 5. To modify requirements as to publishing, posting and filing of tariffs. 6. To require evidence of concurrence or acceptance of joint tariffs to be filed. 7. To determine and prescribe the form of schedules. Sec. 6, 8. To hear complaints of persons claiming to be damaged by any carrier. Sec. 9. 9. To inquire into the management of the business of all common carriers subject to this Act. 10. To keep itself informed as to the manner and method in which the same is conducted. 11. To obtain from carriers full and complete information necessary to enable the Commission to perform its duties. 12. To execute and enforce the provisions of this Act and 13. To invoke the United States courts and attorneys in aid of the enforce- ment thereof. 14. To require the attendance and testimony of witnesses and the production of papers from any place in the United States at any designated place of hearing and may invoke aid of court therefor. 6 THE ACT TO REGULATE COMMERCE 15. To take depositions. Sec. 12. 16. To receive complaints and forward same to carrier and call for answer or reparation. •—17. To investigate matters complained of. «- 18. May institute any inquiry on its own motion. Sec. 13. 19. To make a report in writing, stating, (a) Conclusions, (b) Its decision, order or requirement, (c) Findings of fact on which award is made, in every investigation. 20. To provide for the publication of its reports and decisions. 21. To print its annual reports for distribution. Sec. 14. 22. To determine and prescribe what will be the just and reasonable maximum rate to be thereafter observed. 23. What regulation or practice is just, fair and reasonable to be thereafter followed. 24. To make an order that the carrier shall cease and desist from such viola- tion and shall conform to the regulation or practice so prescribed. 25. To suspend, modify or set aside its orders. 26. To apportion joint rates. 27. To establish through routes and joint rates. 28. To hear and determine what is a reasonable charge to be paid by carrier to owner for service rendered or instrumentality furnished in connection with the transportation. Sec. 15. 29. To make an order for the payment of money 30. To suspend or modify its orders. 31. To employ special counsel. Sec. 16. 32. To grant rehearings after a decision, order or requirement. 33. To make special orders to stay or postpone enforcement. 34. To reverse, change or modify original order. Sec. 16a. 35. To prosecute inquiries in any part of the United States by one or more of the Commissioners. Sec. 19. 1^6. To require annual reports from carriers and owners of railroads. 37. To prescribe the form of reports and specific answers. 38. To prescribe a period of time in which all carriers shall have a uniform system of accounts and the manner in which such accounts shall be kept. 39. To grant additional time to file reports. v40. To require monthly reports of earnings and expenses and special reports. Sec. 20. 41. To prescribe forms of accounts, records, memoranda, receipts and ex- penditures of money. , 209 U. S. 56. Adjacent Foreign Country, would seem to mean adjacent in the sense of the possibility of substantial continuity of rails. Lykes Steamship Line v. Commercial Union et als., 13 I. C. C. 310. From One Place in a Territory to Another Place in the Same Territory. Case dismissed for want of jurisdiction when the Terri- tory was admitted as a State pending proceedings before the Com- mission. Hussey v. C. R. I. & Pac. Ry., 13 I. C. C. 366. Common Control, Management or Arrangement, for Continuous Carriage or Shipment. This provision formerly applied to a route composed wholly of railroads as well as to one which was partly by railroad and partly by water. The words now plainly apply only 32 THE ACT TO REGULATE COMMERCE [Sec. 1 to transportation which is partly by railroad and partly by water. With respect to transportation entirely by rail the words in pa- rentheses may be eliminated from the statute. The test of jurisdic- tion is not the arrangement under which the freight is handled, but rather the character of the transportation itself. The entire movement of freight from point of origin to point of destination, must be regarded, and every agent engaged in that movement thereby became subject to Federal control, and every carrier by rail which participated in an interstate movement by rail becomes thereby subject to the Act to Regulate Commerce. Leonard V. K. C. S. Ry., 13 I. C. C. 573. Refrigeration. The carrier must provide refrigeration for perish- able traffic in transit and charges therefor are subject to the statu- tory requirement of reasonableness. Farmers v. N. E. of S. C. Ry., 6 I. C. C. 295; Georgia Peach &c. v. A. C. L. Ry., 10 I. C. C. 255; Re- frigeration of Fruits on Pere Marquette and M. C. Ry. Cos., 10 I. C. C. 360; In Matter of Charges for Transportation, etc., 11 1. C. C. 129; and Waxelbaum v. A. C. L. Ry., 12 I. C. C. 178. Free Passes. Land and immigration agents must be bona fide and actual employees of carriers. Complaint of Illinois Central Ry. Co., 12 I. C. C. 7. See Administrative Rulings and Opinions. As to employees of telegraph companies. Railroad-Telegraph Companies, 12 I. C. C. 10. Newspaper employees on special newspaper trains, not en- titled to. Newspaper Employees on Newspaper Trains, 12 I. C. C. 15. Cannot exchange with transfer or baggage express companies. Frank Parmalee Company, 12 I. C. C. 39. Passenger assumes risk of ordinary negligence when he accepts it with conditions, but carrier liable for willful or wanton negligence. Adams v. No. Pac. Ry., 192 U. S. 440; Boching v. Chesapeake &c., 193 U. S. 442. Contract for free pass made for valuable consideration, October 2, 1891, not invalidated by Act June 29, 1906. Mottley v. L. & N. R. R. Co., 150 Fed. R. 407. See under Sec. 2. Informal Rulings on the Subject of Passes Authorized or Approved by the Commission in Conference Local Attorneys and Surgeons who carry on private practice and are occasionally called upon to perform services for a carrier, are not en- titled to free transportation. To entitle them to it they must be in the service of a carrier in such sense that their chief occupation and EXPRESS COMPANIES 33 paramount daily duty is to look after its affairs in the capacity in which they are employed, and such work must engage their time, attention and labor as their principal daily concern and interest, and the salary received therefor must be the chief source of the income derived by them from their daily toil or labor. Local surgeons and attorneys may be given free transportation over the line by which they are employed for the purpose of enabling them to attend to the subject-matter or business then in hand. They are not entitled to interchange of passes. Nothing but Money may be Lawfully Received or Accepted in Payment for Transportation, whether of persons or property, or for any service in connection therewith. Transportation cannot be used as a medium for discharging obligations or debts, nor in payment for any service, or for work done, whether by a laborer or an architect, or for real estate or for material. Representatives of International and Other Correspondence Schools are not entitled to, nor Inspectors of Employees' Watches, nor Solicitors for Insurance Companies. In cases where contracts were entered into for free transportation in consideration of services rendered, claims for damages for per- sonal injuries, payment of bills for advertising, or for real estate and rights of way, the contracts are nullified by the act in respect to free transportation, and the carriers cannot longer transport free in such cases. The fact that the contract was entered into before the law went into effect does not alter the situation. It is manifest that the power of Congress to legislate in regulation of interstate commerce cannot be obstructed by the private contracts of individuals. Such contracts must give way under the terms of the new law. Parties should consult with counsel as to whether suit may be brought on such a contract in order to commute the value of the free transportation agreed upon into a money judgment against the carriers. A carrier cannot honor a state pass for an intrastate portion of an interstate journey. An interstate journey has commenced the moment a passenger boards the train for the purpose of going to a point in another State. Express Companies cannot carry free or at reduced rates freight for the officials or employees of any railroad or express company. Officials and employees of such companies may exchange free trans- portation. The Officers and Workers of the Women's Christian Temper- 3 34 THE ACT TO REGULATE COMMERCE [Sec. 1 ance Union are not entitled to, nor editors of Newspapers publish- ing advertisements, nor Agents of a Circus traveling upon the regular trains of the carrier. Caretakers of Stock are entitled to where they go out to meet stock and bring it in, but not for those who go out to buy. Customs Inspectors traveling in the discharge of their duties as inspectors of merchandise are entitled to, but not Special Treasury Agents and other employees of that Department. When a carrier grants free passage or reduced rate transporta- tion to the attendant with shipment of horses it must be made the subject of a tariff provision. The several classes of persons who may lawfully enjoy free trans- portation seem' to divide themselves into three groups, viz. : (1) To its employees and their families, its officers, agents, sur- geons, physicians and attorney s-at-law. (2) To ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and for Soldiers' and Sailors' Homes and Boards of Managers of such Homes. (3) To necessary caretakers of live stock, poultry and fruit; to employees on sleeping cars, express cars, and to linemen of tele- graph and telephone companies; to railway mail-service employees, post office inspectors and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the carrier is interested, persons injured in wrecks and physicians and nurses attending such persons. The persons comprised within the first and second groups of enumerated classes may use transportation for their personal benefit or pleasure. As to those enumerated in the third group, the right to use free transportation is limited to the occasions of actual employment in the designated capacity. The Commission has held that, by reasonable intendment a carrier may issue free transportation to the families of its agents, officers, surgeons, physicians and attorneys-at-law, as well as to the families of its employees, and they may have interchange of free transportation. A reasonable definition of a family for the purposes of this Act, would include persons who are related by blood or marriage and habitually reside together under one roof and are THE BUREAU OF INSULAR AFFAIRS 35 actually dependent for support upon the person who acts as the head of the household. Under such circumstances a father and sister of one entitled to use free transportation, may lawfully be given free The issuance of free passes, free transportation, or free tickets must be to actual and bona fide employees of carriers engaged in interstate commerce. A Minister of Religion who ceases actively to follow his profes- sion and becomes the president of an educational institution is not entitled to receive and use free transportation, nor are sisters of charity superintending or teaching in educational institutions at which tuition is charged. The fact that a person may freely give his or her services to a public institution does not necessarily bring that person within the excepted classes enumerated in the act. The character of the institution is the determining factor. If the in- stitution is of the nature indicated in the act, those persons who are engaged in its service, whether compensated or not for their labors, are entitled to use free transportation. On the other hand, even though they are not compensated for their labors, persons in the service of institutions that are not charitable or eleemosynary in the sense in which those words are used in the Act, are not en- titled to use free transportation. Passes to Necessary Caretakers of Live Stock, Poultry and Fruit must be confined to such persons who actually accompany such shipments while they are in transit and to return to the place from which they started, or to start from the destyiation of the ship- ment, go where they meet or take charge of it, and return to such destination. The law does not permit the issuance of time or annual passes to such caretakers. Whether a person is engaged in charitable work is a question that the railroad companies can properly decide for themselves upon their own investigation, being responsible, of course, under the law if the facts do not bear out their conclusions. The Bureau of Insular Affairs cannot contract for the Philippine government for the transportation at special through rates by rail and Pacific Ocean steamers between the United States and Manila, of (a) employees of the insular department whose fares are paid by the government, and (b) employees, members of their families, students and others, whose fares are not actually paid by the gov- ernment although settled for by the government with the trans- portation company. Sec. 22 of the Act, so far as it touches the right of the United States or municipal governments to enjoy free 36 THE ACT TO REGULATE COMMERCE [Sec. 1 or reduced rates, is confined under its express terms to the carriage, storage, or handling of property. Use by Other Than Employee. Where a common carrier issued an interstate free pass to an employee who delivered the pass to a person not authorized to receive or use it and the said party used the same on an interstate journey, he violated the Act of June 29, 1906, and the employee delivering such pass is guilty of aiding and abetting in said violation. United States v. Williams, 159 Fed. R. 310. Just and Reasonable Rates. To inquire whether the rates which have been charged and collected are reasonable, is a judicial act, but to prescribe rates which shall be charged in the future, is a legislative act. I. C. C. v. Cin. &c. Ry., 167 U. S. 479. In determining whether a particular rate is just and reasonable, the interest of the carrier, the shipper and the public must all be considered, I. C. C. v. R. R. Co., 167 U. S. 511; Covington v. San- ford, 164 U. S. 578; Texas v. I. C. C, 162 U. S. 197; I. C. C. v. Ala- bama &c., 74 Fed. R. 715; I. C. C. v. So. Ry., 105 Fed. R. 703, and the greatest weight should be given to the following considerations: the opinion of expert witnesses; the effect of the rate charged on the growth and prosperity of the city; the cost of transportation as compared with the rates charged, and the rates in force at numerous other cities, when the circumstances are as nearly similar as may be to those prevailing at such city. I. C. C. v. So. Ry., 117 Fed. R. 741; Cannon v. M. & 0. Ry., 11 I. C. C. 537; American Florists v. U. S. Express Co., 12 I. C. C. 120. The conditions and circumstances surrounding the traffic and which enter into and control the nature and character of the service performed by the carrier, involving volume or lightness of traffic, expenses of construction and operation, competition of carriers not subject to the law, competitive points, space occupied by freight, value of freight and risk of earnings to carrier. New Orleans v. 111. Cent. Ry., 2 I. C. C. 777; New Orleans v. 111. Cent. Ry., 3 I. C. C. 534; U. S. V. Debs, 64 Fed. R. 723; I. C. C. v. East Tenn. &c. Ry., 85 Fed. R. 107; I. C. C. v. L. & N. R. R., 73 Fed. R. 409; Goodhue v. C. G. W. Ry., 11 I. C. C. 685. The court should look over the entire field of service. Union Pac. &c. v. U. S., 104 U. S. 662. The sworn return of the officers of the road made to state au- thorities for the purposes of taxation, is admissible but not con- clusive. L. & N. V. Brown, 123 Fed. R. 926. The fair value of the property being used must be considered. Smith v. Ames, 169 U.S. 546. JUST AND REASONABLE RATES 37 The presumption is the rates fixed by the State Commission are reasonable. Minneapolis v. Minnesota, 186 U. S. 257. The findings of fact by the Commission as to the reasonableness of rates, which have been approved by the Circuit Court, will not usually be reviewed by the Supreme Court. 111. Cent. Ry. v. I. C. C, 206 U. S. 441; Cincinnati v. I. C. C, 162 U. S. 184; Cincinnati &c. v. I. C. C., 206 U. S. 154. Reparation predicated upon the unreasonableness of an estab- lished rate, must be primarily brought through the Commission. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426. See Reparation. Evidence of rebates is not competent to prove the unreasonable- ness of a rate in favor of a shipper who received them, and raises no presumption that the published rate is unreasonable. In pass- ing upon an entire schedule of railway rates the controlling factor is the value of the property which is devoted to the public service, but the present science of railway accounting does not enable us upon any such basis to fix with certainty a reasonable rate upon a particular commodity between two points. Frye & Bruhn v. No. Pac. Ry., 13 I. C. C. 501; Kindel v. Express Companies, 13 I. C. C. 475. How to determine what is a just and reasonable rate. Seaboard Air Line Ry. v. R. R. Com. of Alabama, 155 Fed. R. 792. Rates graduated according to length of haul. Oklahoma & Arkansas Coal Traffic Bureau v. C.,R. I. & P. Ry., 14 I. C. C. 216. Rates voluntarily reduced by carrier. See under Sec. 16. Reasonableness of minimum car loads. Tayntor Granite Co. v. Montpelier & Wells River Ry., 14 I. C. C. 136. Rates were established after prolonged negotiations especially for the purpose of permitting complainant to reach a particular market, and in preference to making a readjustment in some other direction or territory, and complainant having adjusted its busi- ness thereto, defendants may not by an arbitrary advance in those rates destroy complainant's business, there being no evidence that the rates advanced were less than the cost of service. New Albany Fur. Co. V. Mobile, J. & K. C. Ry., 13 I. C. C.,594; Western Oregon Lumber &c. v. So. Pac. Co., 14 I. C. C. 71. The Commission has no authority to establish general rate sched- ules. Corn Belt Meat Producers' Asso. v. C, B. & Q. Ry., 14 1. C. C. 376. Railways are authorized to establish in the first instance their transportation charges and the presumption of right doing attaches 38 THE ACT TO REGULATE COMMERCE [Sec. 1 to their acts in the establishment of those rates. Banner Milling Co. V. N. Y. C. & H. R. Ry., 14 I. C. C. 398. Contracts for Rates. Weight to be given to agreements for rates, when their reasonableness is challenged. Rhinelander Paper Co. v. No. Pac. Ry., 13 I. C. C. 633. Ordinarily a through rate ought not to exceed the sum of the locals, but the Commission has also held that where the sum of the local rates established by state authority is less than a reasonable interstate rate the higher rate may be charged. Montg. Freight Bureau v. W. Ry. of Ala., 14 I. C. C. 150. The reasonableness of a joint through rate is to be de- termined as a whole and not by the divisions of the respective carriers making up the route. Gump v. B. & O. Ry., 14 I. C. C. 105. Rates upon commodities according to the use to which such commodities are put, are improper. The carrier has no right to dictate the use to which commodities transported by it shall be put, Classification must be based upon a real distinction from a transportation standpoint. Fort Smith Traffic Bureau v. St. L. & San Fran. Ry., 13 I. C. C. 651. Difference in weight of commodity at point of origin and destina- tion considered. Topeka Banana Dealers' Asso. v. St. L. & S. F. Ry., 13 I. C. C. 620. Increased cost of operation. Burgess v. Trans. Freight Bureau, 13 I. C. C. 677. When carriers advance a rate which has been for some time in force, the burden of proof is upon them to show sufficient grounds for such advance. Because the shippers' business has become phenomenally pros- perous, this fact cannot justify an advance of a rate already rea- sonably high. The test of the reasonableness of a rate is not the amount of the profit in the business of a shipper or manufacturer, but whether the rate yields a reasonable compensation for the service rendered. There is no presumption of wrong arising from a change of rate by the carrier, but the carrier, when properly called upon, must be able to give a good reason for making the change. In determining the reasonableness of an advance in rates, con- sideration was given the fact that large increases in the business of the shippers had resulted in corresponding increase of revenue for the railroads. The inexpensiveness of the service; the rapidity of movement and necessity for special equipment, and such equip- CONTRACTS FOR RATES 39 ment as the shippers were required to furnish and pay for; loading and unloading the cars; nature of the commodity carried, whether fragile or perishable, and the risk of loss or damage and the financial condition of the carriers. Pacific Coast Lumber Co. &c. v. No. Pac. Ry., 14 I. C. C. 23. When certain rates have been in force for a long period of time and business conditions have become well settled thereon and the carrier is earning a liberal income and paying liberal dividends while expending large sums in improvements and renewals, a material increase in those rates unaccompanied by a corresponding decrease in other rates places upon the carrier the obligation of justifying the increase. The railroad rates from various points of production will deter- mine, so far as transportation is concerned, the limit of the extent of the consuming territory which any given commodity can reach. Where there is a question of whether or not a rate is remunerative to the carrier on a particular commodity, it may be doubted whether the carriers can divert the equipment in such cases from the de- mands of other traffic offered to them. An advance cannot be justified upon the theory that the in- crease in the rates will be absorbed by the decrease in the cost of the raw material. Oregon & Washington Lumber &c. v. U. P. Ry., 14 I. C. C. 1. No presumption of law that a freight rate upon a particular commodity is reasonably low exists because such rate has been duly published and filed by the carrier with the Commission. 111. Cent. Ry. v. I. C. C, 206 U. S. 441; Warren Mfg. Co. v. So. Ry., 12 L C. C. 381. As to the previous existence of a rate. Enterprise Mfg. Co. v. Ga. Ry., 12 I. C. C. 130; Shiel & Co. v. I. C. Ry., 12 I. C. C. 210; Warren Mfg. Co. v. So. Ry., 12 1. C. C. 381; Burgess v. Trans. Freight Bureau, 13 I. C. C. 677. The circumstances of the carrier, its operating expenses, cost of transportation, grades, density or sparseness of population, volume of business, book charges, dividends, are all properly considered. New Orleans v. C, N. O. & T. P. Ry., 2 I. C. C. 375; Howell v. N. Y., L. E. & W. Ry., 2 I. C. C. 272; Thurber v. N. Y. C. & H. R. R. R., 3 I. C. C. 473. The failure of the carrier to secure a profit is not conclusive that the tariff of rates is unjust and unreasonable. Reagan v. Farmers' &c., 154 U. S. 362. Reasonableness of a rate is a question of fact. Cin. Ry. v. I. C. C, 40 THE ACT TO REGULATE COMMERCE [Sec. 1 162 U. S. 184, 197; and is peculiarly a question for judicial investiga- tion and decision. Tift v. Sou. Ry., 123 Fed. R. 795. Rates may be unreasonably low. I. C. C. v. Cin. &c. Ry., 167 U. S. 511. The average cost of carriage upon the entire system is an in- sufficient basis for concluding that the rate charged upon a par- ticular portion of the system is unjust or unreasonable. I. C. C. V. Lehigh Valley Ry., 74 Fed. R. 784. Burden of showing that a particular rate is unreasonable or un- just is upon complainant. I. C. C. v. Nashville &c. Ry., 120 Fed. R. 935. Rates should bear a fair and reasonable relation to the ante- cedent cost of the traffic as delivered to the carrier and to the com- mercial value of such traffic. P. H. Loud, Jr., v. S. C. &c. Ry., 5 I. C. C. 529. The character of the traffic is material in determining rates. New Orleans v. T. P. Ry., 10 I. C. C. 327; Denison Light & Power Co. V. M., K. & T. Ry., 10 L C. C. 337; Colo. Fuel & Iron Co. v. So. Pac. Co., 6 I. C. C. 488; Potter Mfg. Co. v. C. & G. T. Ry., 5 I. C. C. 514. Dissimilar conditions may be considered. Lincoln Creamery Co. V. U. P. Ry., 5 I. C. C. 156. Rates upon lines of rival companies or different branches of the same company are properly considered. Morrell v. XJ. P. Ry., 6 L C. C. 121. Comparison of rates, Morrell v. U. P. Ry., 6 I. C. C. 121; West- ern Lumber &c. v. So. Pac. Co., 14 I. C. C. 69; and in opposite di- rections, Duncan v. A., T. & S. F. Ry., 6 I. C. C. 85, and Morrell v. U. P. Ry., 6 I. C. C. 121; Phillips v. G. T. W. Ry., 11 I. C. C. 659; Pittsburg Plate Glass Co. v. P. C. C. & St. L. Ry., 13 I. C. C. 87. Rate per ton per mile. Farrar v. So. Ry. Co. and N. & W. Ry. Co., 11 I. C. C. 640; Dallas v. G., C. & S. F. Ry., 12 I. C. C. 223. Local rates are not properly compared with through rates. Manu- facturers &c. V. M. & St. L. Ry., 4 I. C. C. 79; New Orleans v. I. C. Ry., 3 I. C. C. 534; Crews v. R. & D. Ry., 1 1. C. C. 401. The cost of transportation of the commodity and the needs of the shipper on the one hand, and the circumstances and financial condition of the carrier, have been considered. Alleged Excessive Freight Rates on Food Products, 4 I. C. C. 48; Proposed Advance of Freight Rates, 9 I. C. C. 382. Distance is an important factor. Cincinnati v. C, N. 0. & T. P. Ry., 7 I. C. C. 180; Milwaukee v. C, M. & St. P. Ry., 7 I. C. C. 481. FACILITIES FOR TRANSPORTATION 41 The hazard involved in transportation must be considered. Masu- rite Explosive Co. v. Pittsburg & Lake Erie Ry., 13 I. C. C. 405. Any special services rendered the shipper, are to be considered. I. C. C. V. Detroit &c. Ry., 167 U. S. 633. The capitalization of a railroad and the history of the capital account can be examined. Tifton v. L. & N. Ry., 9 I. C. C. 160; Proposed Advance in Freight Rates, 9 I. C. C. 382; Grain Shippers &c. V. I. C. R. R. Co., 8 I. C. C. 158. Expenditures for construction and equipment. 111. Cent. Ry. v. I. C. C, 206 U. S. 441. Need not be reduced to meet intrastate reductions by state Com- missions. Savannah v. C. & S. Ry., 7 I. C. C. 601. A rate fixed by a state statute or a state commission is naturally and properly entitled to respectful consideration, but it has no greater sanctity, as applied to interstate traffic, than a rate estab- lished by a railroad company; and this Commission would not hesitate to decide upon proper evidence that a rate so established would be unjust either to a carrier or to a shipper, and to refuse to accept it as a basis for fixing an interstate rate. Hope Cotton Oil Co. V. Ry., 12 I. C. C. 265; Marshall Oil Co. v. C. & N. W. Co., 14 I. C. C. 210. There should be harmony if possible. Corn Belt Meat Producers' Asso. v. C, B. & Q. Ry., 14 I. C. C. 376. Party Rate Tickets cannot be confined to particular classes, but must be open to the general public. Party Rate Tickets, 12 I. C. C. 95; I. C. C. V. B. & 0. Ry., 145 U. S. 263; Field v. So. Ry., 13 I. C. C. 298; Kock Secret Service v. L. & N. Ry., 13 I. C. C. 523. Side Tracks and Switch Connections. Judson on Interstate Commerce, Sec. 196; Red Rock Fuel Co. v. B. & 0. R. R. Co., 11 I. C. C. 438; I. C. C. v. Indianapolis, 99 Fed. R. 472; U. S. v. B. & 0. R. R., 153 Fed. R. 997; Barden & Swartout v. L. V. R. R. Co., 12 I. C. C. 193; McRae Terminal Co. v. So. Ry., 12 I. C. C. 270; Rahway Valley Ry. v. D. L. & W. Ry., 14 I. C. C. 191. An order of a state Commission directing the carrier to make delivery of interstate shipments upon a sidetrack not owned by it and therefore at a point off its line, imposes a burden on interstate commerce and is void. McNeill v. So. Ry., 202 U. S. 543. Carriers Cannot Refuse Transportation as defined in the act, but must, upon reasonable request, afford the same upon established rates filed and kept posted as required by law. Waxelbaum v. A. C. L. Ry., 12 L C. C. 178. Carriers Must Provide Facilities for Transportation. See note to Harp V. Choctaw &c. Ry., 61 C. C. A. 414; Rice v. L. & N. Ry., 42 THE ACT TO REGULATE COMMERCE [Sec. 1 3 I. C. C. 162; Independent Refiners' Assn. v. N. Y. & P. Ry., 4 I. C. C. 162; Allowance to Elevators by Union Pacific Ry., 12 I. C. C. 85; Waxelbaum v. A. C. L. Ry., 12 I. C. C. 178; A. C. L. Ry. v. N. Car., 206 U. S. 1. Terminal Facilities. Oregon &c. v. Northern &c., 51 Fed. R. 475. Terminal Companies engaged in transportation of interstate com- merce are subject to the act. Eichenberg v. So. Pac. Co., 14 I. C. C. 250. Elevation of Grain defined. Allowances to Elevators by Union Pacific Co., 12 I. C. C. 85; Atchison v. M. P. Ry., 12 I. C. C. 111. Carriers Cannot Transport Commodities in Which They are Interested. See I. C. C. v. C. & O. Ry., 200 U. S. 361. Routing of Shipments. It is the duty of the carrier in the ab- sence of routing instructions to the contrary, to forward shipments, having due regard to the interests of the shipper, ordinarily by that reasonable and practicable route over which the lowest charge for the transportation applies. Hennepin Paper Co., 12 I. C. C. 535. Railroad Stations and Terminals. Preston & Davis v. D., L. & W. Ry., 12 I. C. C. 114; American Florists v. U. S. Express Com- pany, 12 I. C. C. 120; Jones et al. v. St. L. & San F. Ry., 12 I. C. C. 144. Stopping through trains. Atlantic Coast Line v. Wharton, 207 U. S. 328. Marine Insurance. Unless a railroad intends to hold itself re- sponsible for losses arising from the perils of the sea, it should ten- der to the public a transportation contract which leaves shippers free to arrange for their own marine insurance. Wyman, Partridge et als. V. Boston & Maine Ry., 13 I. C. C. 258. Free Storage in Transit, not necessarily unlawful. Commercial Club of Duluth V. N. P. Ry., 13 I. C. C. 288. Storage Charges. Carrier cannot charge for storage when grain is delivered to it for immediate shipment and there is a delay on account of shortage of cars. Distinction drawn between grain received for "immediate shipment" whereby the defendant was under the obligation, according to the terms of its tariff schedule, to supply cars for the forward movement as rapidly as convenience would permit, and in the meantime to insure and store the grain at its own expense. A storage shipment implies an affirmative order by the shipper to hold the grain, and also a like order to move it forward to destina- tion. Reparation allowed complainant for overcharges exacted for storage and insurance, when circumstances showed "immediate ADEQUACY OF LOCAL FACILITIES 43 shipment" was contemplated. England V. B. & 0. Ry., 13 I. C. C. 614. Track Storage Charges, when associated with an interstate movement, appertain directly to interstate commerce. They repre- sent the carrier's compensation for services rendered in connection with the 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. Wilson Produce Co. v. Penna. Ry. Co., 14 I. C. C. 170. Discrimination is not necessarily unlawful; it may be forced upon the carrier by controlling circumstances. In such a case the law is not infringed, and such discrimination is not unlawful unless made in the interest of a competing locality or commodity. Wilson Produce Co. v. Penna. Ry., 14 I. C. C. 170. As to the reasonableness of track storage charges and discrimina- tion therein. New York Hay Exchange Asso. v. Penna. Ry., 14 I. C. C. 178. Demurrage. There can be no waiver of demurrage charges which accrue by reason of the refusal of consignees to accept ship- ments and unload cars pending a contest or dispute as to the rea- sonableness of the established rates. Coome & McGraw v. C, M. & St. P. Ry., 13 I. C. C. 192; MacBride v. C, St. P. & C. Ry., 13 I. C. C. 571. On private cars. See opinion, 13 I. C. C. 378. Demurrage charges and charges of a kindred nature are imposed as compensation to a carrier for an additional service not embraced in the rate, for which additional compensation may properly be exacted. New York Hay Exchange Asso. v. Penna. Ry., 14 I. C. C. 178. Carrier's Duty as to Unloading Cars. The carrier discharges its full duty if it places the carload upon its team tracks and brings the packages to the car door for delivery. It is under no obliga- tion to furnish a place for assorting the packages and making de- livery to the different individuals to whom the carload is addressed. There is no hard and fast rule as to whose duty it is to unload cars, but such rules, when made, are subject to the jurisdiction of the Interstate Commerce Commission. Wholesale Fruit &c. v. A., T. & S. F. Ry., 14 I. C. C. 410. Adequacy of Local Facilities — Stopping Interstate Trains. The adequacy of the local facilities existing at a station at which a through interstate train is required to stop by an order made under 44 THE ACT TO REGULATE COMMERCE [Sec. 1 state authority, may be considered by the Federal Supreme Court on writ of error to a state court in so far as the existence of such adequate local facilities is involved in the determination of the Federal question as to whether the order does or does not directly regulate interstate commerce. An order made under state authority requiring a railroad com- pany to stop on signal two of its through fast interstate mail trains at a small town, is void as a direct regulation of interstate com- merce where in addition to several local trains daily the residents of such town are furnished daily one slower through train each way. Atlantic Coast Line Ry. v. Wharton, 207 U. S. 328. Minnesota Rate Case —Sufficiency of Rates a Judicial Question — Conditions upon Right to Appeal — Excessive Penalties. The sufficiency of rates with reference to the Federal Constitution is a judicial question and one over which Federal courts have jurisdic- tion by reason of its Federal nature. If the law be such as to make the decision of the legislature or of a Commission conclusive as to the sufficiency of the rates, this court has held such a law to be unconstitutional. A law which imposes such conditions upon the right to appeal for judicial relief as works an abandonment of the right rather than face the conditions upon which it is offered, or may be obtained, is also unconstitutional. It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legisla- tion, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights. Return upon Investment —Burdensome Conditions Invalid. Or- dinarily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legis- lature is complete in any event. In the case, however, of the estab- lishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment, and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that if unsuccessful he must suffer imprisonment and pay fines as provided in these Acts, is, in effect, to close up all approaches to the courts, and thus STATE OFFICERS MAY BE ENJOINED 45 prevent any hearing upon the question whether the rates as pro- vided by the Acts are not too low, and therefore invalid. The dis- tinction is obvious between a case where the validity of the Act depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute requiring no such investigation and over which the jurisdiction of the legislature is complete in any event. Enormous Fines —Invalidity of the Acts —Temporary Injunction. We hold, therefore, that the provisions of the Acts relating to the enforcement of the rates, either for freight or passengers, by im- posing such enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those rates. We also hold that the Circuit Court had jurisdiction under the cases already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low and therefore confiscatory, and if so held, that the court then had jurisdiction to permanently enjoin the railroad company from putting them in force, and that it also had power, while the inquiry was pending, to grant a temporary injunction to the same effect. State Law Unconstitutional —Not a Suit Against a State. The general doctrine that the Circuit Court of the United States will restrain a state officer from executing an unconstitutional statute of the State, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution, and would work irreparable damage and injury to him, has never been departed from. It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that amendment. A State is not a party to a suit simply because the State Railroad Commission is such party. Officers of a State May be Enjoined by a Federal Court. The various authorities we have referred to furnish ample justification for the assertion that individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceed- ings, either of a civil or criminal nature, to enforce against par- ties affected, an unconstitutional act violating the Federal Con- 46 THE ACT TO REGULATE COMMERCE [Sec. 1 stitution, may be enjoined by a Federal court of equity from such action. Enforcement of Unconstitutional Law by State Official, not Act of State. The act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an un- constitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State, in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney- general seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with that superior authority of the Constitution, and he is in that case stripped of his official or representative character and is sub- jected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from re- sponsibility to the supreme authority of the United States. See In re Ayres, supra, p. 507. It would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enact- ment, and to prevent it ought to be within the jurisdiction of a court of equity. If the question of unconstitutionality with refer- ence, at least, to the Federal Constitution, be first raised in a Fed- eral court, that court, as we think is shown by the authorities cited hereafter, has the right to decide it to the exclusion of all other courts. Jurisdiction to Enjoin Criminal Proceedings. It is further ob- jected (and the objection really forms a part of the contention that the State cannot be sued), that a court of equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as a general rule, is true; but there are excep- tions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. Prout v. Starr, 188 U. S. 537, 542, 544. But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor, 16 Wall. 366, 370; Harkrader v. Wadley, 172 U. S. 148. REMEDY AT LAW INADEQUATE 47 Where one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceed- ings are brought to enforce the same right that is in issue before that court, the latter may enjoin such criminal proceedings. Davis &c. Co. V. Los Angeles, 189 U. S. 207. In In re Dobbins v. Los Angeles, 195 U. S. 223, 241, it is remarked by Mr. Justice Day, in delivering the opinion of the court, that "it is well settled that where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity." Smythe v. Ames, supra, distinctly enjoined the proceedings by indictment to compel obedi- ence to the rate act. Restraining Court Proceedings —Disobedience of Injunction. It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is a part of the machinery of a criminal court, and an injunction against a state court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account. Injunctions Against Individuals and Against Court Proceedings. The difference between the power to enjoin an individual from do- ing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former. Remedy at Law Inadequate. All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and en- joining the enforcement of the act until the decision of the court upon the legal question. Ex parte Young, 209 U. S. 123 (Minne- sota Rate Case, decided March 23, 1908); Hunter v. Wood, 209 U. S. 205 (North Carolina Rate Case, decided March 23, 1908); Perkins v. Northern Pac. Ry., 155 Fed. R. 445; So. Ry. v. McNeill, 155 Fed. R. 756; Potlatch Lumber Co. v. S. F. & N. Ry., 157 Fed. R. 588. 48 THE ACT TO REGULATE COMMERCE [Sec. 2 Unjust Discrimination Defined and Forbidden Sec. 2. That if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less 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, de- mands, 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 de- clared to be unlawful. Construction of Sec. 2. This section changes the common law which did not forbid discrimination in rates. I. C. C. v. B. & O. Ry., 145 U. S. 263; Lundquist v. Grand Trunk &c., 121 Fed. R. 915. Sec. 2 relates to discrimination in rates, but Sec. 3 is comprehensive enough standing alone to include every form of unjust discrimina- tion, not only in rates, but also in the conveniences an-d facilities supplied to shippers in any of the details of the carrying service. U. S. V. Delaware &c. Ry., 40 Fed. R. 101; I. C. C. v. Western &c. Ry., 93 Fed. R. 83. Validity of Existing Contracts for Transportation. As to the validity of existing contracts in contravention of terms of Act. Fitzgerald v. Fitzgerald &c., 41 Neb. 376; 34 Amer. & Eng. R. Cas. 653; Merchants' Cotton Press v. Insurance Co., 151 U. S. 368; Church V. Minneapolis, 14 S. Dak. 443; Armour &c. v. United States," 153 Fed. R. 1. See Free Pass. Difference in the amount of traffic does not render service dis- similar. U. S. V. Tozer, 39 Fed. R. 369. The purpose of Sec. 2 is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor. I. C. C. v. Alabama &c., 168 U. S. 144; Wight v. U. S., 167 U. S. 512; U. S. v. Hanley, 71 Fed. R. 673. The phrase "under substantially similar circumstances and con- ditions," as used in the second section, refers to the matter of car- riage, and does not include competition between rival routes, but MINIMUM CHARGE 49 this language is restricted to the case of shippers over the same road, leaving no room for the operation of competition. (Cases cited above.) Pittsburg Plate Glass Case, 13 I. C. C. 87. Round trip tickets at reduced rates do not constitute unjust discrimination. I. C. C. v. B. & O. Ry., 145 U. S. 263. There may be discrimination in storage, American Warehousemen &c. V. I. C. R. R., 7 I. C. C. 556; Wilson Produce Co. v. Penna. Ry., 14 I. C. C. 170; and in track storage charges, New York Hay Ex. Asso. V. Penna. Ry., 14 I. C. C. 178; in the use of private cars and through interest in the connecting company, Hutchinson Salt Case, 10 I. C. C. 1; Michigan Salt Case, 10 I. C. C. 148; Divisions of Joint Rates & Allowances to Terminal Railroads, 10 I. C. C. 385. See Annual Report, 1904, p. 19. Exaction of unreasonable rent for private cars. Rice &c. v. W. N. Y. & Pa. Ry., 4 I. C. C. 131. Re- bates for the use of private cars, Shamberg v. D.,L. & W. Ry., 4 I. C. C. 630. Underbilling weight or false classification. Proctor & Gamble Co. v. C. H. & D. Ry., 4 I. C. C. 87; Proctor & Gamble Co. V. C.,H. & D. Ry., 9 I. C. C. 440. Service of cars, Gallogly & Fire- stine v. C.,H. & D. Ry., 11 I. C. C. 1; Hawkins v. L. S. & M. S. Ry., 9 I. C. C. 207. Granting a manufacturer's rate. Alleged Unlawful Charges for Transportation of Coal by the L. & N. Ry., 5 I. C. C. 466. Unjust classification, Coxe Bros. & Co. v. L. V. Ry., 4 I. C. C. 535. A number of persons may travel together on a party rate ticket at reduced rates, but carriers cannot transport larger quantities of freight on the same principle. Party Rate Case, 145 U. S. 263; and see also 12 I. C. C. 95; Providence Coal Co. v. P. & W. Ry., 1 I. C. C. 107; U. S. V. Tozer, 39 Fed. R. 369; Judson on Int. CoBi., 192; I. C. C. V. Alabama &c. Ry., 168 U. S. 165. Not unjust when based on special service. I. C. C. v. Detroit &c. Ry., 167 U. S. 633; Loud v. S. C. Ry., 5 I. C. C. 529. Carload and Less Than Carload Rates. Thurber Case, 3 I. C. C. 473; St. Louis v. A., T. & S. F. Ry., 9 I. C. C. 318; Buckeye Buggy Co. V. C, C, C. & St. L. Ry., 9 I. C. C. 620. In assembling packages of goods and shipping them under car- rier's rates for carload shipments, a shipper is not evading the law but is legally availing himself of the rates which the carrier offers. The ownership of property tendered for shipment cannot be made a test as to the applicability of the carrier's rates. California"^ Commercial Asso. v. Wells, Fargo & Co., 14 I. C. C. 422; Export Shipping Co. v. Wabash Ry., 14 I. C. C. 437. Minimum Charge Upon any Single Shipment of Freight Should 4 60 THE ACT TO REGULATE COMMERCE [Sec. 2 Be for One Hundred Pounds. Wrigley, Jr., v. C, C, C. & St. L. Ry., 10 I. C. C. 412. Use of Private Cars. Ruttle &e. v. Pere M. Ry., 13 I. C. C. 179. Discriminations in Cargo or Trainload Rates. Paine v. L. V. Ry., 7 I. C. C. 218. Carrier Cannot Discriminate in Favor of Itself. Haddock v. D., L. & W. Ry., 4 1. C. C. 296. Stoppage in Transit Privileges. Mobile & Ohio Grain Rate Case, 9 I. C. C. 373; Transportation of Grain and Grain Products, 7 I. C. C. 240; Transportation of Cotton by K. C.,M. & B. Ry., 8 I. G. C. 121; Cowan V. Bond, 39 Fed. R. 54; Central Yellow Pine Assn. v. V. S. & P. Ry., 10 I. C. C. 193; Quimby v. Maine Central Ry., 13 I. C. C. 246. Abuse of the Stoppage in Transit Privileges. Transportation of Grain and Grain Products, 7 I. C. C. 240; C, R. I. & P. Ry. v. C. & A. Ry., 3 I. C. C. 450. All Privileges Must be Published m Tariffs. Shiel & Co. v. I. C. Ry., 12 I. C. C. 210. Separate Cars for White and Colored Persons. Segregation of white and colored persons is not discrimination, provided equal accommodations and conveniences are furnished. Georgia Edwards V. N. C. & St. L. Ry., 12 I. C. C. 247. Discrimination in passenger service is prohibited, but this does not prohibit separate cars for white and colored passengers where they have accommodations equal in all respects, Heard v. Ga. Ry., 1 1. C. C. 428; Georgia Edwards v. N. C. & St. L. Ry., 12 I. C. C. 247. Parlor Car Rates. Hewins v. N. Y., N. H. & H. Ry., 10 I. C. C. 221; and to pay extra fare by passengers without tickets not dis- crimination, Sidman v. R. & D. Ry., 3 I. C. C. 512. Parcel Express. Walker v. B. & 0. Ry., 12 I. C. C. 196. A Like Kind of Traffic means a kind that is capable of a fair and just classification and not necessarily identical. New York Board of Trade &c. v. Pa. R. R., 4 I. C. C. 447. The reservation applicable to a single business by the initial carrier guaranteeing a through rate, or the right to route goods beyond its own terminal, does not amount to an unlawful dis- crimination, if the business is of a special nature, like the fruit busi- ness, having nothing in common with other freight. So. Pac. Co. V. I. C. C, 200 U. S. 536. Bills of Lading are not vitiated by the interstate commerce law. Merchants' Cotton Press v. Insurance Co., 151 U. S. 368. Substantially Similar Circumstances and Conditions. The car- SIMILAR CIRCUMSTANCES 51 rier must determine in the first instance whether or not the condi- tions are so substantially similar as to preclude a difference in rates, I. C. C. V. Alabama, 168 U. S. 169; and this determination is subject to revision by the Commission and the courts. L. & N. Ry. v. Behlmer, 175 U. S. 648. A company may accept less for through shipments than they do for local shipments over the same route. Thatcher v. D. & H. Co., I I. C. C. 152. Rates will not be declared unreasonable and unlawful under the first section of the Act without other testimony than that afforded by comparison. Raymond v. C. , M. & St. P. R. R., 1 1. C. C. 230. Carriers are not, as a matter of law, prohibited from making rates from points in foreign countries tO points in the United States, of which the inland division or share accruing to carriers within the United States is less than the tariff rate of such carriers on domestic shipments of similar commodities. Kemble v. B. & 0. R. R., 8 I. C. C. 110; Texas &c. v. I. C. C, 162 U. S. 197. The Supreme Court has decided that: "The Commission must take into consideration all of the facts of a given case — among which are to be considered the welfare and advantage of the common carrier, and of the great body of citizens of the United States who constitute the consumers and recipients of the merchandise carried; and that the attention of the Commission is not to be confined to the advantage of shippers and merchants who deal at or near the ports of the United States, in articles of domestic production. Un- doubtedly the latter are likewise to be considered, but we cannot concede that the Commission is shut up by the terms of this Act to solely regard the complaints of one class of the community. We think the Congress has here pointed out that in considering questions of this sort, the Commission is not only to consider the wishes and interests of the shippers and merchants of large cities, but to consider also the desire and advantage of the carriers in securing special forms of traffic, and the interest of the public that the carriers should secure that traffic, rather than abandon it, or not attempt to secure it. It is self-evident that many cases may and do arise where, although the object of the carriers is to secure the traffic for their own purposes and upon their own lines, yet, nevertheless, the very fact that they seek, by the charges they make, to secure it, operates in the interest of the public. . . . That all circumstances and conditions which reasonable men would re- gard as affecting the welfare of the carrying companies, and of the producers, shippers and consumers, should be considered by a tribunal appointed to carry into effect and enforce the provisions 52 THE ACT TO REGULATE COMMERCE [Sec. 2 of the Act ... to deprive the inland consumers of the ad- vantage of through rates, and thus to give an advantage to the traders and manufacturers of the large seaboard cities, seems to create the very mischief which it was one of the objects of the Act to remedy." Tex. & Pac. Ry. v. I. C. C, 162 U. S. 197; Pittsburg Plate Glass Case, 13 I. C. C. 87. "A discrimination springing alone from a disparity in rates can- not be held, in legal effect, to be the voluntary act of the defendant carriers, and as a consequence the provisions of the third section of the Act forbidding the making or giving of an undue or unrea- sonable preference or advantage will not apply. The prohibition of the third section when that section is considered in its proper relation, is directed against unjust discrimination or undue prefer- ence arising from the voluntary and wrongful act of the carriers complained of as having given undue preference and does not relate to acts the result of conditions wholly beyond the control of such carriers." East Tenn. &c. v. I. C. C, 181 U. S. 1. While competition between carriers cannot justify discrimination between individuals, competition may and does have an influence in determining the through rates, thus making them under essentially different circumstances and conditions from the local rates to other points on the same line. In such cases the reduced rate affected by competition is controlled by circumstances and conditions sub- stantially dissimilar within the meaning of the Act. But whether so controlled or not, it must be the same to all shippers under the same conditions. It has been uniformly held both by the Commission and the courts, that a local rate to a given point and the pro rata part of a through rate to the same point on the same line, are not under similar circumstances and conditions. The phrase "under similar cirumstances and conditions" is found in Sees. 2 and 4. As hereafter seen competitive conditions may create dissimilar circumstances and conditions between lo- calities under Sec. 4, but when the rates are thus fixed under dis- similar conditions. Sec. 2 requires that shippers in any given locality must be treated alike for the same service. But through traffic is a different "kind of service" from local traffic. Union Pac. Ry. v. U. S., 117 U. S. 355; Import Rate Case, 162 U. S. 197. It is not only in the presence of competition, but also in the increased cost of service, resulting from stoppages, that the conditions of through and local traffic are substantially dissimilar. Chicago Ry. Co. v. Tompkins, 176 U. S. 167. These words as used in Sec. 2 refer to the matter of carriage, and PUBLIC NOT A GENERAL MANAGER 53 do not include competition, that is, discrimination between in- dividuals is not justified by the fact of competition with other carriers influencing the lower charges. Wight v. U. S., 167 U. S. 512; Capital Gas Co. v. R. R. Co., 11 1. C. C. 104. Public not a General Manager— No Presumption of Wrong from a Change of Rates. It must be remembered that railroads are the private property of the owners; that while from the public character of the work in which they are engaged the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet in no proper sense is the public a general manager. Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the Act to regulate com- merce leaves common carriers, as they were at the common law, free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits. It must also be remembered that there is no presumption of wrong arising from a change of rate by a carrier. The presumption of honest intent and right conduct attends the action of carriers as well as it does the action of other corporations or individuals in their transactions in life. Undoubtedly when rates are changed the carrier making the change must, v;hen properly called upon, be able to give a good reason therefor, but the mere fact that a rate has been raised carries with it no presumption that it was not right- fully done. Those presumptions of good faith and integrity which have been recognized for ages as attending human action, have not been overthrown by any legislation in respect to common carriers. The rule is not universal that the rates on raw material shall not be higher than on the manufactured product. I. C. C. v. Chicago Great Western Ry., 209 U. S. 108 (Packing House Products Case, decided March 23, 1908). 54 THE ACT TO REGULATE COMMERCE [Sec. 3 Undue or XTnTeasonable Preference or Advantage Forbidden Sec. 3. That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular descrip- tion of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Facilities for Interchange of Traffic — Discrimination Between Connect- ing Lines Forbidden Every common carrier subject to the provisions of thjs Act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their re- spective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be con- strued as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like busi- ness. Construction of Act. This section was taken substantially from the English Traffic Act, and the construction of that Act by the English courts may be regarded as incorporated in the Act. Texas &c. Ry. V. I. C. C, 162 U. S. 197; I. C. C. v. B. & 0. Ry., 145 U. S. 284; McDonald v. Hovey, 110 U. S. 619. Question of fact and not of law, depending on the matters proved in each case. I. C. C. v. Alabama Ry., 168 U. S. 170; Cincinnati &c. Ry. V. I. C. C, 162 U. S. 184, 197. The question cannot be determined by a, mere mathematical calculation. I. C. C. v. Louisville &c. Ry., 73 Fed. R. 409; I. C. C. V. Alabama &c., 168 U. S. 144. The nature and extent of competition must be considered. I. C. C. V. Western Ry., 93 Fed. R. 83; I. C. C. v. Alabama &c. Ry., 168 U. S. 170; I. C. C. V. Southern Ry., 105 Fed. R. 704; I. C. C. v. Southern Ry., 117 Fed. R. 741; potential water competition, I. C. C. V. Alabama &c., 74 Fed. R. 715. Cartage in connection with business of carrier. Detroit &c. v. I. C. C, 74 Fed. R. 813; Detroit &c. v. I. C. C, 167 U. S. 644. SWITCHING FACILITIES 55 Switching Facilities and Service. Intefstate Stdckysiird v. In- dianapolis &c. Ry., 99 Fed. R. 473. In case of car shortage, failfoad must pro rata supply ofi haiid among all shippers. U. S. v. Norfolk, 109 Fed. R. 831. As to private cars specially adapted for certaifl sort of traffic. U. S. V. Delaware, 40 Fed. R. 101. Permitting shipper to Use his own cars. tJ. S. v. Norfdk &c., 109 Fed. R. 831; Ruttle et ah. v. Fere M. Ry., 13 I. C. C. 179. As to delivery of cattle at stock yard. Centfal Stock Yafds v. L. & N. R. R., 118 Fed. R. 113. The prohibition of the third section was directed against unjust discrimination or undue preferences arising from the voluntary or wrongful act of the carriers complaiiied of, and does not relate to acts the result of conditions wholly beyond the control of such carriers. Where the competition was controlling, the preference was npt undue or the discrimination unJust. There might be a ease where the carrier could not be allowed to avail himself of the com- petitive condition. Thus, if he could not meet the competitive rate without transporting the merchafidfse at less than the cost of trans- portation, and therefore bringing about a deficiency which would increase charges upon other business, the engaging iii such com- petitive traffic would bring about an unjust discrimination and a disregard of the public interest. East Tennessee, Virginia & Georgia R. R. V. I. C. C, 181 U. S. 1. Competition is a factor to be considered. I. C. C. t. Western &c., 93 Fed. R. 83; I. C. C. v. L. & N. R. R., 73 Fed. R. 409; Bre-^er V. Central &c., 84 Fed. R. 257; I. C. C. v. Western Ac, 88 Fed. R. 186; I. C. C. V. Cincinnati &c. Ry., 124 Fed. R. 624; I. C. C. v. L. & N. R. R., 190 U. S. 273; Pratt Lumber Co. V. C, I & L. Ry. Co., 10 I. C. C. 29; Gardner & Clark v. So. Ry., 10 I. C. C. 342; I. C. C. V. Alabama &c., 168 U. S. 144; Texas &c. v. I. C. C, 162 U. S. 197; East Tenn. &c. v. I. C. C, 181 U. S. 1; Pittsburg Plate Glass Case, 13 I. C. C. 87. Qualifications in the application of the competition rule. Judson on Interstate Commerce, Sec. 183. Discrimination between domestic and foreign traffic in import and export rates is not Unjust preference. The purpose of Congress was to facilitate and promote commerce and not to reinforce the provisions of the tariff laws. It is not a violation of the Act for the carrier to make a lower rate to the point of export or from the port of import upon the traffic which is ex-* ported or imported than upon that which' is locally coneumed. 56 THE ACT TO REGULATE COMMERCE [Sec. 3 Texas &c. v. I. C. C, 162 U. S. 197; see Export and Domestic Traffic in Grain, 8 I. C. C. 214; Railroad Com. of Kansas v. A., T. & S. F. Ry., 8 I. C. C. 304; Pittsburg Plate Glass Case, 13 I. C. C. 87. As to rates from intermediate points. Wichita v. A., T. & S. F. Ry., 9 I. C. C. 534. Classification. C, H. & D. R. R. v. I. C. C, 206 U. S. 142; Stowe- Fuller Co. v. Pa. Co., 12 I. C. C. 215; Anthony Salt Co. v. U. P. Ry., 5 I. C. C. 299; Judson on Interstate Commerce, Sec. 208. Basing Points, upheld. I. C. C. v. L. & N. Ry., 190 U. S. 273. Natural Advantages of Location. Michigan Salt Case, 10 I. C. C. 148; Holdzkom v. M. C. Ry., 9 I. C. C. 42; Daniels v. C, R. I. & P. Ry., 6 I. C. C. 458; Enterprise Mfg. Co. v. Ga. R. R., 12 I. C. C. 451; Quimby v. Maine Central Ry., 13 I. C. C. 246; Payne-Gardner Co. V. L. & N. Ry., 13 I. C. C. 638. Differentials Between Grain and Grain Products. R. R. Com. of Kansas v. A.,T. & S. F. Ry., 8 I. C. C. 304; Wichita v. M. P. Ry., 10 I. C. C. 35. Differentials Between Competitive Cities. Judson on Interstate Commerce, Sec. 186. Exclusive Use of Leased Cars. R. R. Com. of Ohio v. Hock- ing Valley Ry., 12 I. C. C. 398; Farmers v. N. E. of S. C. Ry., 6 I. C. C. 295; Independent Refiners &c. v. W. N. Y. & P. Ry., 5 I. C. C. 415. Group or Blanket Rates, sustained when approximately the same distance from shipping center. Judson on Interstate Com- merce, Sec. 182; Rhinelander Paper Co. v. No. Pac. Ry., 13 I. C. C. 633; Phillips &c. v. So. Pac. Co., 13 I. C. C. 644. Preference in Car Service. West Va. &c. v. U. S., 134 Fed. R. 198; West Va. &c. v. U. S., 125 Fed. R. 252; Parks v. Cincinnati &c. R. R., 10 I. C. C. 47; Goode Coal Company v. B. & 0. Ry., 10 I. C. C. 226. Distribution of Cars. U. S. v. West Va. N. Ry., 125 Fed. R. 253; West Va. &c. v. U. S., 134 Fed. R. 198; R. R. Com. of Ohio v. Hock- ing Valley Ry., 12 I. C. C. 398; Pitcairn Coal Co. v. B. & 0. Ry., 154 Fed. R. 108, 497; Powhatan Coal Co. v. N. & W. Ry., 13 I. C. C. 69; Royal Coal & Coke Co. v. So. Ry., 13 I. C. C. 440; Traer, Re- ceiver, V. C. & A. Ry., 13 I. C. C. 451; Rail and River Coal Co. v. B. & 0. Ry., 14 I. C. C. 86. Sec. 2 assures to shippers an equality of rates for the transporta- tion of property under substantially similar circumstances and conditions, and Sec. 3 assures to them an equality in the opportunity DISTRIBUTION OF CARS 57 to use the rates, facilities and services of carriers. One right sup- plements the other. The power to deal with undue preferences and unlawful discrimina- tions, when accomplished by carriers through unjust regulations and practices, does not rest upon implication. The language of Sec. 15 is entirely sufficient in itself to enable the Commission to redress wrongs of unfair car distribution. Any practice or regulation that unlawfully discriminates against one shipper and affords an undue preference to another shipper is a regulation or practice affecting rates in the sense in which that phrase is used in the amended act. The maximum or minimum weight of a carload is not something affecting the rate, but is in fact a part of the rate, a factor which is just as essential to a correct statement of the rate as is the rate per hundred pounds itself. Ample authority is vested in the Commission by Sec. 15 to deal with the undue preferences and unlawful discriminations forbidden under Sees. 2 and 3 and elsewhere in the Act, regardless of the form of the rule, regulation or practice under which such wrongs may be perpetrated. Sec. 15 of the Act is to be read in the widest possible sense, and it brings within the jurisdiction of the Commission all the regula- tions arid practices of carriers under which they offer their services to the shipping public, and conduct their transportation. A carrier, during percentage periods, may not assign the private cars to operators other than their owners, nor foreign railway fuel cars to any mines except those to which they have been manifested by the foreign line; it must nevertheless count all such cars against the distributive share of the respective mines to which the private cars belong or the foreign railway fuel cars have been consigned; and in case the private cars or foreign railway fuel cars so delivered to a mine do not fill out its distributive share of available cars, enough system cars are to be added to make up its share according to its rating. The obvious relation between shortage in cars and an insufficiency in motive power, in sidings, in track's, in train crews, and other facilities necessary to the movement of traffic, must be noticed. A shortage of cars on a particular line does not mean that the supply of cars of that carrier has been diminished in number, but only that the volume of traffic offered exceeds the capacity of its available equipment to move it. The ownership of a private car gives to the owner no superior 58 THE ACT TO REGULATE COMMERCE [Sec. 3 right to use the facilities of the carrier in transporting it; it gives him no right to have his private car attached to a locomotive in preference to a system car loaded by another shipper. When the general facilities are insufficient tcr move all the traffic offered; no operator has a superior right over another merely be^ cause he enjoys the advantage of owning private cars or has fuel contracts with connecting lines. The right of a carrier to make arbitrary allowances of system cars without regard to theif percentage rating for the purpose of enabling the owner of a mine reasonably to develop it, so as to put in a condition to operate and make shipments, has been recognized, and we see no grounds for disturbing the right in this case. But any arbitrary allowance of cars made to an operator on other grounds should be closely scrutinized, and is an unlawful discrimination unless justified by special conditions. Rail and River Coal Co. y, B. & O. Ry., 14 1. C. C. 86. Track Storage Charges. Discrimination is not necessarily un- lawful; it may be forced upon the carrier by controlling circum- stances. In such a case the law is not infringed, and such discrimina- tion is not unlawful unless made in the interest of a competing locality or commodity. Wilson Produce Co. v. Penna. Ry., 14 I. C. C. 170. Different Rates from Same Coal District. Small-vein coal and big-vein coal come from the same field and in several instances from the same mine, being loaded at the same tipple. Every incident of the transportation is the same and the two varieties of coal are so similar in appearance as to be indistinguishable except by experts. There is, however, a difference in the quality of the two coals, and the small-vein coal cannot compete with the big-vein in the markets at the same rate of freight. It is the right of the small-vein operators to have a rate that will enable them to move their output to the consuming markets and give them a reasonable opportunity to com- pete with similar coal from adjacent fields. George's Creek Basin Coal Co. V. B. & 0. Ry., 14 I. C. C. 127. Facilities for Interchange of TrafBc. In determining what are reasonable and proper facilities, the interests of the road required to furnish them must be considered. Oregon &c. Ry. v. Northern &o. Ry., 61 Fed. R. 158; U. S. v. Morris, 40 Fed. R. 101; Little Rock v. St. Louis &c., 63 Fed. R. 775; Atchison &c. v. Denver &c., 110 U. S. 667; Central &c. v. L. & N. Ry., 192 U. S. 568; Allen & Lewis V. Oregon &c., 98 Fed. R. 16; Capehart v. L. & N. Ry., 4 1. C. C. 265. Whether a violation of the statute for a carrier to allow a connect- NON-TRANSFERABLE TICKETS 59 ing carrier the use of its tracks or terminal facilities and to refuse to allow a similar use by other connecting carriers. Oregon v. Northern &c., 51 Fed. R. 475; St. Louis &c. v. L. & N. R. R., 65 Fed. R. 39; Little Rock &c. v. St. Louis &c., 63 Fed. R. 775. A carrier is not required to transport traffic in the cars of other companies where it has cars of its own equally available for the pur- pose. Oregon v. &c. Northern &c., 51 Fed. R. 465; Little Rock &c. V. St. Louis, 59 Fed. R. 407; Little Rock &c. v. St. Louis, 63 Fed. R. 775. Weighing and Reweighing, cars and commodities. Rice v, Georgia Ry., 14 I. C. C. 75. ITon-transferable Round Trip Tickets. Carrier has right to sell at reduced rates, and the condition of non-transferability and for- feiture embodied in such tickets is binding not only upon the original purchaser, but upon anyone who has acquired such a ticket and attempted to use the same in violation of its terms. It ia the doty of the carrier to use due diligence to prevent the use of such tickets by other than the original purchaser. An actionable wrong is committed by one " who maliciously inter- feres in a contract between two parties and induces one of them to break that contract to the injury of the other.'* It is not necessary that actual malice in the sense of personal ill will should exist, bat only the wanton disregard of the rights of the carrier caiusing injury to it. An injunction may issue which restrains for the future the commission of acts identical in character with those which have been the subject of controversy and which have been adjudged illegal. Bitterman v. Lou. & Nash. Ry., 207 U. S. 205. A common carrier has a right to conduct its: own business accordi- ing to law, free from the interference of strangers. A common carrier may make rules for its conduct, fixing the times, the places, the methods, and the forma in which it will receive com- modities it offers to transport, and these rules are presumptively reasonable and just. Courts and Commissions should not interfere to modify established rules of transportation companies on account of trivial troubles and incidental inconveniences. Piatt v. Le Cocq, 158 Fed. R. 723. 60 THE ACT TO REGULATE COMMERCE [Sec. 4 Long and Short Haul Provision— Commission has Authority to Relieve Carriers from the Operation of This Section Sec. 4. That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circum- stances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as au- thorizing any common carrier within the terms of this Act to charge and receive as great compensation for a shorter as for a longer distance: Provided, however, That upon application to the Commission appointed under the provisions of this Act, such com- mon carrier may, in special cases, after investigation by the Com- mission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this Act. This section only prohibits a greater charge for a shorter than for a longer haul. An equal charge does not violate this section of the statute, arid is not illegal unless it amounts to an unjust discrimina- tion, or an undue preference or advantage within the prohibition of the second or third sections of the Act. I. C. C. v. Brimson, 154 U. S. 447; Texas &c. v. I. C. C, 162 U. S. 197. A combination of carriers for through transportation constitutes a new " line " which is independent of the component lines, and hence the charges made by the through line do not constitute violation of the statute by the local and component lines and vice versa. I. C. C. V. Cincinnati Ry., 56 Fed. R. 937; Chicago &c. v. Osborne, 52 Fed. R. 912; Social Circle Case, 162 U. S. 184. Where the circumstances and conditions are substantially dissimi- lar, a carrier may make a greater charge for a shorter than a longer haul without first applying to the Commission for authority to do so. But in such cases the carrier acts at his peril, and if the circumstances are not substantially different, the charge is illegal. Louisville &c. V. Behlmer, 175 U. S. 648; East Tenn. &c. v. I. C. C, 181 U. S. 1; I. C. C. V. Alabama Midland &c., 168 U. S. 144; Brewer v. Central &c., 84 Fed. R. 258; Behlmer v. L. & N., 71 Fed. R. 835; I. C. C. v. East Tenn. &c., 85 Fed. R. 107; Detroit &c. v. I. C. C, 74 Fed. R. 803; I. C. C. V. Western &c., 88 Fed. R. 186. LONG AND SHORT HAUL 61 Under Substantially Similar Circumstances and Conditions. The Supreme Court of the United States has established the rule which has been adhered to in a series of decisions, that competition of any kind, that is, whether from railroads subject to the Act or not, was one of the most obvious and effective circumstances that made the conditions which its long and short haul clause would provide sub- stantially dissimilar, and as such must have been in the contempla- tion of Congress in the passage of the Act, and that such competition when controlling, justified the carrier in making a lower rate for the longer haul, not as a matter of grace or favor from the Commission, but as a matter of right. Import Rate Case, 162 U. S. 197; I. C. C. V. Alabama &c., 168 U. S. 144; L. & N. v. Behlmer, 175 U. S. 648; East Tenn. &c. v. L C. C, 181 U. S. 1; I. C. C. v. L. & N. Ry., 190 U. S. 273; Calloway v. L. & N. Ry. et al., 7 I. C. C. 431; Phillips, Bailey & Co. v. L. & N. Ry. Co. et al., 8 I. C. C. 93; Holdzkom v. M. C. Ry. Co. et al., 9 I. C. C. 42; Pittsburg Plate Glass Case, 13 I. C. C. 87; Randolph Lumber Co. v. Seaboard Air Line Ry., 13 I. C. C. 601. The Commission has held that the existence of actual competition which is of controlling force, in respect to traffic important in amount, may make out dissimilar circumstances and conditions entitling the carrier to charge less, e. g., when competition is with foreign or other railroads which are not subject to the provisions of the statute, or in rare and peculiar cases of competition between railroads which are subject to the statute, when a strict application of the general rule of the statute would be destructive of legitimate competition. Ap- plication for Suspension of Fourth Section, 7 I. C. C. 593; Wichita V. A., T. & S. F. Ry. Co. et al., 9 I. C. C. 534; Goodhue v. C. G. W. Ry. Co., 11 I. C. C. 683. Among the circumstances and conditions, competition that affects rates should be considered, and in deciding whether charges made at a low rate to secure foreign freights which would otherwise go by other competitive routes are or are not undue and unjust, the fair interest of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered. The mere fact that the disparity between the through and the local rates was considerable did not, of itself, warrant the court in finding that such disparity constituted an undue discrimination; much less did it justify the court in finding that the entire difference between the two rates was undue or unreasonable. Texas & Pac. Ry. Co. v. I. C. C, 162 U. S. 197; Pittsburg Plate Glass Case, 13 I. C. C. 87. It has been settled by this court that competition which is control- 62 THE ACT TO REGULATE COMMERCE [Sec. 4 ling on traffic and rates, produces in and of itself the dissimilarity of circumstances and conditions described in the statute, and that where this condition exists a carrier has the right of his own motion to take it into view in fixing rates to competitive points. East Tenn., Va. & Ga. Ry. Co. v. I. C. C, 181 U. S. 1; Texas &c. v. I. C. C, 162 U. S. 197; I. C. C. V. Alabama, 168 U. S. 164; L. & N v. Behlmer, 175 U. 8. 648. Competition which is real and substantial and exercises a potential influence on rates to a particular point, brings into play the dissimi- larity of circumstances and conditions provided by the statute. East Tenn. &c. v. I. C. C, 181 U. S. 1; Pittsburg Plate Glass Case, 13 I. C. C. 87; Phillips &c. v. So. Pac. Co., 13 I. C. C. 644. Dissimilar circumstances which justify a greater charge for a shorter than for a longer haul under Sec. 4 will also prevent such rate from constituting an illegal preference or advantage under Sec. 3. Gump v. B. & 0. -Ry., 14 1. C. C. 105. POOLING OF FREIGHTS 63 Pooling of Freights and Division of Earmngs Forbidden Sec. 5. That it shall be unlawful for any common carrier sub- ject to the provisions of this Act to enter into any contract, agree- ment, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earn- ings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. Construction of Section, and Pooling Defined. In re Pooling Freights, 115 Fed. R. 588; Cincinnati v. C, N. O. & T. P. Ry. Co. et al., 6 I. C. C. 195; Consolidated Forwarding Co. v, S. P. Ry. Co. et al., 9 I. C. C. 182; I. C. C. v. S. P. Co., 132 Fed. R. 829; So. Pac. Co. v. I. C. C, 200 U. S. 536. Agreements not within the Prohibition. An agreement for the division of through freights between the members of a trunk line, nor for consultation for the promotion of reasonable rates. Duncan V. A.,T. & S. F. Ry. Co. et al., 6 I. C. C. 85; Immigrant Case, 10 I. C. C. 13. For other cases not within the Anti-trust Act of 1890, see Judson on Interstate Commerce, Sec. 324; Warren Mfg. Co. v. So. Ry. Co., 12 I. C. C. 381. Agreements must be made with carriers subject to the provisions of the Act. Independent Refiners &c. v. W. N. Y. & P. Ry. Co., 5. 1. C. C. 415; In re Express Companies, 1 I. C. C. 349; see U. S. V. Trans-Missouri Freight Association, 166 U. S. 290; Joint Traffic Association Case, 171 U. S. 505; Tift v. So. Ry., 138 Fed. R. 735. Where there is a conflict in the state and Federal law in respect to imposing a penalty for violation, the state law must yield. Gulf &c. Ry. Co. v. Hefiey, 158 U. S. 98. The agreement for the division of traffic need not necessarily be reduced to writing in order to constitute an offense. In re Pooling Freights, 115 Fed. R. 590; Joint Traffic Association Case, 171 U. S. 505. 64 THE ACT TO REGULATE COMMERCE [Sec. 6 Printing and Posting of Schedules of Rates, Fares and Charges, Includ- ing Rules and Regulations Affecting the Same, Icing, Storage and Terminal Charges, and Freight Classifications Sec. 6. {Amended March 2, 1889. Following section substituted June 29, 1906.) That every common carrier subject to the pro- visions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been estab- lished. If no joint rate over the through route has been established, the several carriers in such through route shall file, print, and keep open to public inspection, as aforesaid, the separately established rates, fares, and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations 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. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation, and facilities de- fined in this Act. Printing and Posting of Schedules of Rates on Freight Carried Through a Foreign Country— Freight Subject to Customs Duties in Case of Failure to PubUsh Through Rates Any common carrier subject to the provisions of this Act re- ceiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates_ established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a foreign country into the United States FORMS OF SCHEDULES 65 the through rate on which shall not have been made public, as re- quired by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. Thirty Days' Public Notice of Change in Kates Must be Oiven — Commis- sion May Modify Requirements of This Section No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. Joint Tariffs Must Specify Names of Carriers Participating — Evidence of Concurrence The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the Commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission, and where such evi- dence of concurrence or acceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. Copies of Contracts, Agreements, or Arrangements Relating to Traffic Must be Filed with Commission Every common carrier subject to this Act shall also file with said Commission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. Commission May Prescribe Forms of Schedules The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the form from time to time as shall be found expedient. 5 66 THE ACT TO REGULATE COMMERCE [Sec. 6 No Carrier Shall Engage in Transportation Unless it Files and Publishes Rates, Fares, and Charges Thereon — Published Rates not to be Deviated From — " Carrier " Means " Common Carrier " No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and pub- lished in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tarifiE filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transporta- tion of passengers or property, except such as are specified in such tariffs: Provided, That wherever the word "carrier" occurs in this Act it shall be held to mean "common carrier." Preference and Expedition of Military Traffic in Time of War 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 carriers shall adopt every means within their control to facilitate and expedite the military traffic. Contracts for Less Than Regular Rates. A contract limiting the carrier's liability in consideration of a special rate less than the regu- lar rate is void and constitutes no defense to an action for the value of goods lost or damaged in transit. Ward v. Mo. Pac. Ry., 158 Mo. 226. It is the duty of the carrier to apply the rate as published, and where it appears in the complaint before the Commission that a con- tract was made for a lower charge than published, the contract is not binding, and its violation furnishes no ground for redress under the Act. Red Cloud Mining Co. v. So. Pac. Co., 9 I. C. C. 216; Pond- Deck V. Spencer, 86 Fed. R. 846; M. & O. v. Dismukes, 94 Ala. 131; Graves v. Waite, 14 N. Y. 162. As to cartage, storage and terminal charges being included in the schedules. American Warehousemen &c. v. I. C. Ry., 7 I. C. C. 592; Pa. Millers &c. v. P. & R. Ry., 8 I. C. C. 560; Blackman V. So. Ry., 10 I. C. C. 352; Carr v. N. P. Ry., 9 I. C. C. 1; I. C. C. V. Chicago &c., 186 U. S. 320; I. C. C. v. Chicago &c., 103 Fed. R. 249. THROUGH ROUTES AND JOINT RATES 67 Tariff takes effect though not posted in freight depots. Texas &c. Ry. V. Cisco &c., 204 U. S. 449; Pueblo Trans. Asso. v. So. Pac. Co., 14 I. C. C. 82. Published Joint Rates. "The only rates which a carrier is author- ized to publish are its own local rates, that is, to points on its own line, and such through rates as it is authorized by agreement with any connecting carrier to combine with the rates of such carrier to points on its own line. Joint rates can only be made by concurrence or assent. There must be lawful rates upon each of the roads before there can be lawful combination of rates. N. Y., N. H. & H. R. Co. V. Piatt, Receiver, &c., 7 I. C. C. 323. See Sec. 15 of amended Act, June 29, 1906, which empowers the Commission to establish through routes and joint rates. Tariff of Rates for Export and Import Commerce. The Commis- sion has held in a number of cases that the export and import rates should be published. New York Produce Exchange v. N. Y. C. & H. R. R. R. Co. et al., 3 I. C. C. 137; New Orleans Cotton Exchange V. C, N. O. & T. P. Ry., 4 I. C. C. 694; Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I. C. C. 266. The carrier must publish either the joint rates to the foreign des- tination or a local rate to the point of export. Kemble v. B. & O. Ry., 8 I. C. C. 110; Export and Domestic Traffic in Grain, 8 I. C. C. 214; Publication and Filing of Tariffs on Exports and Imports, 10 I. C. C. 55. Through Routes and Joint Rates, 12 I. C. C. 163, Commission may establish, see Sec. 15, Act June 29, 1906. Pacific Coast Lum- ber &c. V. No. Pac. Ry., 14 I. C. C. 51; E. Martin v. C, B. & Q. R. R. &c., 2 1. C. C. 31; Social Circle Case, 162 U. S. 184; Railroad Commis- sion V. Clyde Steamship Co. et al., 5 I. C. C. 391; Montg. Freight Bureau v. W. Ry. of Ala., 14 I. C. C. 150; Loup Creek Colliery Case, 12 I. C. C. 471; Cattle Raisers' Asso. of Texas v. Ry. Co., 13 I. C. C. 21; Stedman & Son v. C. & N. Ry. Co., 13 I. C. C. 167; Gentry v. A., T. & S. F. Ry. Co., 13 I. C. C. 171; Cardiff Coal Co. v. C, M. & St. P. Ry., 13 I. C. C. 460. Through rate should be less than the sum of the locals. Randolph Lumber Co. v. S. A. L. Ry., 14 1. C. C. 338. Definition of, E. Martin v. C, B. & Q. R. R. &c., 2 I. C. C. 31; Social Circle Case, 162 U. S. 184; Cincinnati &c. Ry. Co. v. I. C. C, 162 U. S. 184; R. R. Com. v. Clyde S. S. Co. et al, 5 L C. C. 391; method of determining violations of Act, St. L. & S. F. Ry„ 8 I. C. C. 301; L. & N. V. Behlmer, 175 U. S. 650; Milwaukee v. F. & P. M. Ry., 2 I. C. C. 553; Through Routes and Joint Rates, 12 I. C. C. 163. 68 THE ACT TO REGULATE COMMERCE [Sec. 6 Reasonableness of a joint through rate. Gump v. B. & O. Ry., 14 I. C. C. 105. Must FUe Tariffs. U. S. v. New York Central &c., 153 Fed. R. 630. Tariffs Cannot Have Retroactive Effect. Through Routes and Joint Rates, 12 I. C. C. 163. All Privileges Must Be Published in Tariffs. Shiel & Co. v. I. C. Ry., 12 I. C. 0. 210; La Salle &c. v. Chicago & N. W. Ry., 13 L C. C. 610. The published rate between two given points, so long as it remains uncanceled, is as fixed and unalterable, either by the shipper or by the carrier, as if that particular rate had been established by a special Act of Congress. When regularly published it is no longer the rate imposed by the carrier, but the rate imposed by law. Shippers can- not have benefit of a lower rate when quoted by mistake. The pub- lished rate must be paid by the shipper and he cannot impute negli- gence to carriers in quoting rates. A. J. Poor Grain Co. v. Ry. Co., 12 I. C. C. 418; Armour &c. v. United States, 208 U. S. (decided March 16, 1908). A carrier cannot put in prohibitive rates on any commodity on the ground that it is not desirable traffic for that carrier. A. J. Poor Grain Co. v. Ry. Co., 12 I. C. C. 418. Contracts and tariffs filed with the Commission may be considered by it, though not introduced in evidence. Boston Fruit & Produce Exchange, 4 I. C. C. 664. There Can Be but One Legal Rate Between Two Points. This rate must be either (a) the local rate if over one road, or (&) the joint rate if over a through route composed of two or more roads which have agreed as 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. Laning-Harris Coal & Grain Co. V. M. P. Ry. Co. et als., 13 I. C. C. 154; Hydraulic Press Brick Co. v. St. L. & S. F. Ry., 13 I. C. C. 342. CONTINUOUS CARRIAGE 69 Continuous Carriage of Freights from Place of Shipment to Place of Destination Sec. 7. That it shall be unlawful for any eommon carrier subject to the provisions of this Act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid oi unnecessarily interrupt such continuous carriage or to evade any of the provisions of this Act. A carrier cannot escape liability by breaking haul and calling itseH a separate carrier. Parkhurst v. Penna. Ry. Co., 2 I. C. C. 131; Investigation of Grand Trunk Ry. of Canada, 3 I. C. C. 89. Should be construed with Sec. 3, which provides for connecting lines and interchange of traffic. Kentucky v. L. & N. Ry., 37 Fed. R. 567. As to what constitutes continuous shipment. See Cutting v. Florida Ry. Co., 46 Fed. R. 641; The Daniel Ball, 77 U. S. 557. 70 THE ACT TO REGULATE COMMERCE [Sec. 8 Liability of Common Carriers for Damages Sec. 8. 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 of damages sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. Merely making or offering an illegal rate when it is not shown that an actual shipment was made, constitutes no legal injury to a shipper who was charged a higher rate. Parsons v. C. & N. W. Ry. Co., 167 U. S. 447; Lehigh Valley Ry. Co. y. Rainey, 112 Fed. R. 487. Measure of Damages. Junod v. Chicago, 47 Fed. R. 290. Limitation of Actions. See Sec. 16. Claims for Damages are Assignable. Edmunds v. 111. Cent. Ry. Co., 80 Fed. R. 78. Jurisdiction of Actions for Damages. Judson on Interstate Com- merce, Sees. 248, 249. The Federal courts have exclusive jurisdiction over causes arising under the Interstate Commerce Act. Van Patten v. Chicago, 74 Fed. R. 981; Sheldon v. Wabash &c., 105 Fed. R. 785; In re Lenon, 166 U. S. 548; Central Stock Yards v. L. & N., 192 U. S. 568. This exclusive jurisdiction must be distinguished from the concur- rent jurisdiction of the state court over questions in the interstate commerce not arising or based upon the Act. Murray v. Chicago &c., 62 Fed. R. 24. Jurisdiction of State Courts. Repeals by implication are not favored, and a statute will not be construed as abrogating an existing common law remedy, but it will be so construed if such pre-existing right is so repugnant to it as to deprive it of its efficacy and render its provisions nugatory. The Interstate Commerce Act was intended to afford an effective and comprehensive means for redressing wrongs resulting from unjust discriminations and undue preference, and to that end placed upon carriers the duty of publishing schedules of reasonable and uniform rates; and consistently with the provisions of that law, a shipper LIABILITY FOR DAMAGES 71 cannot maintain an action at common law in a state court for excessive and unreasonable freight rates exacted on interstate ship- ments where the rates charged were those which had been duly fixed by the carrier according to the Act and had not been found unreason- able by the Interstate Commerce Commission. Tex. & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426; So. Ry. v. Tift, 206 U. S. 428; 111. Cent. Ry. v. I. C. C, 206 U. S. 441. Although an action at law for damages to recover unreasonable railroad rates which have been exacted in accordance with the sched- ule of rates as filed, is forbidden by the Interstate Commerce Act, the Circuit Court may entertain jurisdiction of a bill in equity to restrain the filing or enforcement of a schedule of unreasonable rates or a change to unjust or unreasonable rates. Potlatch Lumber Co. V. S. F. & N. Ry., 157 Fed. R. 588; L. & N. Ry. v. R. R. Com. of Alabama, 157 Fed. R. 944; Central of Ga. Ry. v. McLendon, 157 Fed. R. 961; Kiser Co. v. Central of Ga. Ry., 158 Fed. R., 193; American Union Coal Co. v. Penna. Ry., 159 Fed. R. 278. Reparation for excess rates must be obtained in a proceeding be- fore the Interstate Commerce Commission. Southern Railway v. Tift, 206 U. S. 428. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute a right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. Tennessee v. Davis, 100 U. S. 257; Starin v. New York, 115 U. S. 248; Kansas &c. v. Atchison &c., 112 U. S. 414; Ames v. Kansas, 111 U. S. 449; Railroad v. Missis- sippi &c., 102 U. S. 135. A court of equity has power to contrive new remedies and issue unprecedented orders to enforce rights secured by Federal legislation, provided no illegal burden is imposed thereby. Toledo &c. Ry. v. Penna. &c., 54 Fed. R. 746; Jay v. St. Louis, 138 U. S. 1. 72 THE ACT TO REGULATE COMMERCE [Sec. 9 Persons Claiming: to be Damaged May Elect Whether to Complain to the Commission or Bring Suit in a United 8tat«s Court— Officers of Defendant May be Compelled to Testify Sec. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the pro- visions 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 com- pel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of tlie books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such per- son on the trial of any criminal proceeding. In an action at law to recover damages for the exaction of an alleged unreasonable freight charge, the raAe established in con- formity with the Act to regulate commerce must be treated by the court as binding upon the shipper, until regularly corrected in the mode provided in the statute. Swift v. Philadelphia, 64 Fed. R. 59; Kinnavey v. Terminal &c., 81 Fed. R. 802; Texas & Pac. Ry. Co. V. Abilene Cotton Oil Co., 204 U. S. 426, PENALTIES FOR FALSE BILLING 73 Penalties for Violations of Act by Carriers, or When the Carrier is a Corporation, Its Officers, Agents, or Employees: Fine and Imprison- ment Sec. 10. (As amended March 2, 1889.) That any common carrier subject to the provisions of this Act, or, whenever such common car- rier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such cor- poration, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this Act re- quired to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this Act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any District Court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense: Provided, That if the offense for which any person shall be convicted as aforesaid shall be an un- lawful discrimination in rates, fares, or charges, for the transporta- tion of passengers or property, such person shall, in addition to the fine hereinbefore provided for, be liable to imprisonment in the peni- tentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Penalties for False Billing, etc., by Carriers, Their Officers or Agents: Fine and Imprisonment Any common carrier subject to the provisions of this Act, or, whenever such common carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means, shall know- ingly and willfully assist, or shall willingly suffer or permit, any per- son or persons to obtain transportation for property at less than the regular rates then established and in force on the line of transporta- tion of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thou- sand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense. 74 THE ACT TO REGULATE COMMERCE [Sec. 10 Penalties for False Billing, etc., by Shippers and Other Persons: Fine and Imprisonment Any person and any officer or agent of any corporation or com- pany who shall deliver property for transportation to any common carrier, subject to the provisions of this Act, or for whom as con- signor or consignee any such carrier shall transport property, who shall knowingly and willfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the hne of transporta- tion, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. Penalties for Inducing Common Carriers to Discriminate Unjustly: Fine and Imprisonment — Joint Liabilitv with Carrier for Damages If any such person, or any officer or agent of any such corpora- tion or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any common carrier sub- ject to the provisions of this Act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such person or such officer or agent of such corporation or company shall be deemed guilty of a misdemeanor, and shall, upon convic- tion thereof in any court of the United States of competent juris- diction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or im- prisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly or severally, in an action on the case t6 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. For a discussion of this section see Judson on Interstate Com- merce, Sec. 253. Effect of fixing a lower rate in bill of lading than the rate estab- lished in the tariff filed with the Commission. R. R. v. Hefley, 158 U. S. 98; Tex. & Pac. Ry. v. Mugg, 202 U. S. 242. JOINT LIABILITY 75 Indictment for pooling freights. In re Pooling Freights, 115 Fed. R. 588. Conspiracy against the United States. Toledo &c. v. Penna. &c., 54 Fed. R. 730. Indictment for failure to furnish cars. U. S. v. B. & 0. R. R., 153 Fed. R. 997. What particulars indictment must show. U. S. v. B. & O. R. R., 153 Fed. R. 997, and cases cited; U. S. v. Simmons, 96 U. S. 360; Patten v. U. S., 155 U. S. 438; U. S. v. Benson, 70 Fed. R. 591; Peters v. U. S., 94 Fed. R. 127; U. S. v. Cruikshank, 92 U. S. 542. 76 THE ACT TO REGULATE COMMERCE [Sec. 11 Interstate Commerce Commission — How Appointed — Terms of Com- missioners Sec. 11. That a Commission is hereby created and established to be known as the Interstate Commerce Commission, which shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. The Commissioners first appointed under this Act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, Anno Domini eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the Commissioner whom he shall succeed. Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Not more than three of the Commissioners shall be appointed from the same political party. No person in the employ of or holding any oflicial relation to any common carrier subject to the provisions of this Act, or owning stock or bonds thereof, or who is in any manner pecuniarily inter- ested therein, shall enter upon the duties of or hold such office. Said Commissioners shall not engage in any other business, vocation, or employment. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission. {See Sec. 24, enlarging Commission and increasing salaries.) Power and Duty of Commission to Inquire into Business of Carriers and Keep Itself Informed in Regard Thereto — Commission Required to Execute and Enforce Provisions of This Act — Duty of District At- torney to Prosecute Under Direction of Attorney-Oeneral — Costs and Expenses of Prosecution to be Paid out of Appropriation for Courts — Power of Commission to Require Attendance and Testimony of Wit- nesses and Production of Documentary Evidence Sec. 12. (As amended March 2, 1889, and February 10, 1891.) That the Commission hereby created shall have authority to in- quire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to per- form the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commission, it shall be the duty of any District Attorney of the United States to whom the Commission may apply to institute in the TESTIMONY TAKEN BY DEPOSITION 77 proper court and to prosecute under the direction of the Attorney- General of the United States all necessary proceedings for the en- forcement of the provisions of this Act and for the punishment of all violations thereof, and the costs and expenses of such prosecu- tion shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this Act the Commission shall have power to require, by subpoena, the attend- ance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation. Oommission May Invoke Aid of Courts to Compel Witnesses to Attend and Testify Such attendance of witnesses, and the production of such docu- mentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of dis- obedience to a subpoena the Commission, or any party to a pro- ceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. Penalty for Disobedience to Order of the Court — Claim that Testimony or Evidence Will Tend to Criminate Will not Excuse Witness And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evi- dence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testi- mony shall not be used against such person on the trial of any criminal proceeding. Testimony May be Taken by Deposition — Commission May Order Testimony to be Taken by Deposition — Reasonable Notice Must be Given — Testimony by Deposition May be Compelled in the Same Manner as Above Specified The testimony of any witness may be taken, at the instance of a party in any proceeding or investigation depending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investiga- tion pending before it, at any stage of such proceeding or investiga- 78 THE ACT TO REGULATE COMMERCE [Sec. 12 tion. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceed- ing or investigation. Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such dep- osition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce docu- mentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. Manner of Taking Depositions Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direc- tion, and shall, after it has been reduced to writing, be subscribed by the deponent. When Witness Is in a Foreign Country — Depositions Must Be Filed With the Commission If a witness whose testimony may be desired to be taken by dep- osition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Com- mission. All depositions must be promptly filed with the Commis- sion. Fees of Witnesses and Magistrates ■> Witnesses whose depositions are taken pursuant to this Act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States. The object of the Interstate Commerce Act is not to aid com- plainants in maintaining a private suit if the investigation develops anything of which he could take advantage. The complaint should state facts showing a violation of the regulating statute, or otherwise the Commission has no jurisdiction to make a corrective order. IMMUNITY OF WITNESSES 79 It must be shown that some public purpose would be subserved or that considerations of public interest are involved or the proper discharge of official duty, before the Commission should exercise its powers of investigation and inquiry under the twelfth section of the Act. Manning v. C. & A. &c. Ry. Co., 13 I. C. C. 125; I. C. C. V. Harriman, 157 Fed. R. 432. Self-incriminating testimony and immunity from prosecutions. Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591. The statutory immunity is personal to the witness testifying. There is no immunity to the corporation by reason of the testimony of its officers, nor can an official or employee refuse to produce books of an employer corporation on the ground that it would implicate the corporation employer. Gardner v. Early, 69 Iowa, 42; Hale v. Henkel, 201 U. S. 43; McAllister v. Henkel, 201 U. S. 90; Otis Co. V. Ludlow, 201 U. S. 147; Beef Trust Cases, 142 Fed. R. 808. See Knox Act of June 30, 1906. Witnesses can be compelled to appear and testify before the Commission and to produce books and papers. Brimson v. I. C. C, 154 U. S. 447; I. C. C. v. Baird, 194 U. S. 24; Rice v. C, W. & B. Ry., 3 I. C. C. 186. The Commission is not a court and has no judicial power, but it may exercise gwasi-judicial powers. Texas &c. v. I. C. C, 162 U. S. 197; I. C. C. V. Cincinnati &c., 167 U. S. 479; I. C. C. v. L. & N. Ry., 73 Fed. R. 409; I. C. C. v. Cincinnati &c. Ry., 64 Fed. R. 981; I. C. C. V. C, N. O. & T^ P. Ry., 76 Fed. R. 183; Kentucky v. L. & N. Ry., 37 Fed. R. 567. The Commission has no legislative powers. Cases cited above. The carriers may fix rates in the first instance, but the rates so fixed must not conflict with the Act. Cases cited above. No question of contempt can arise before the Commission, be- cause it is not a judicial body. I. C. C. v. Brimson, 154 U. S. 447. Immunity of Witnesses. Hale v. Henkel, 201 U. S. 43; Nelson V. U. S., 201 U. S. 92; General Paper Co. v. U. S., 201 U. S. 117; U. S. V. Armour & Co., 142 Fed. R. 808. 80 THE ACT TO REGULATE COMMERCE [Sec. 13 Complaints to Commission — How and by Whom Made — How Served Upon Carriers — Reparation by Carriers Before Investigation — In- vestigations of Complaints by the Commission Sec. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of anything done or omitted to be done by any common carrier subject to the provisions of this Act in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission. 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 com- plained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. Complaints Forwarded by State Railroad Commissions — Institution of Inquiries by the Commission on Its Own Motion Said Commission shall in like manner 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 may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. Complainant Need not be Directly Damaged No complaint shall at any time be dismissed because of the ab- sence of direct damage to the complainant. Procedure Before Commission. Dilatory proceedings are con- sidered objectionable. In re Procedure in Cases at Issue, 1 I. C. C. 223. Any person or association whether incorporated or not does not have to show special damage to itself as a society. Boston Fruit & Produce Exchange v. N. Y. & N. E. Ry., 4 I. C. C. 664; Cattle Raisers v. F. W. & D. C. Ry., 7 I. C. C. 513. Commission may bring in all parties interested in a case. Me- RES ADJUDICATA 81 Millan & Co. v. Western Classification Committee, 4 I. C. C. 276; Minneapolis v. G. N. Ry., 5 I. C. C. 571. Tiie procedure is in tiie simplest form consistent with reasonable certainty. When facts are not agreed, depositions may be taken upon notice, after answer filed. Assignments for hearing are made upon request of either party, and parties are heard orally or on briefs. In re Procedure in Cases at Issue, 1 I. C. C. 223. The Commission will not express opinions on abstract questions, nor on questions presented on ex parte statements of facts, nor on questions of the statute presented for its advice, but without any controversy pending before it on complaint of violation of law. Petition of the Order of Railway Conductors, 1 I. C. C. 8. Nor for injury to goods resulting from delay, detention, etc., or from any cause not attributable to any violation of the Act. Dun- can V. A., T. & S. F. Ry., 6 I. C. C. 85. When a carrier fails to answer the complaint filed, the Commis- sion takes such proof of the facts as may be deemed proper and reasonable, and makes an order therein accordingly. Tecumseh Celery Co. v. C. J. & M. Ry., 5 I. C. C. 663. The burden of proof is upon the party making the complaint, and relief will not be granted without proof. Banner Milling Co. V. N. Y. C. & H. R. Ry., 14 I. C. C. 398; Holmes v. Southern Ry., 8 I. C. C. 561; but in case of departure from established rates and certain disparities in rates the burden is upon the carrier. Phillips, Bailey & Co. v. L. & N. Ry., 8 I. C. C. 93; Missouri &c. v. Texas &c., 31 Fed. R. 862. Cases must be prosecuted with reasonable diligence. Producers' Pipe Line Co. v. St., L. I. M. & S. Ry., 12 I. C. C. 186. Where a territory has been admitted into the Union after pro- ceedings instituted and before judgment, the case will be dismissed for want of jurisdiction. Hussey v. C, R. I. & Pac. Ry., 13 I. C. C. 366. The Commission has no authority to require carriers to establish special fares. Field v. So. Ry. Co., 13 I. C. C. 298. Res Adjudicata —Estoppel. While there is in the nature of things no estoppel of record in proceedings before this body, the Commission must of necessity, when it reaches a conclusion upon a given state of facts, adhere to that conclusion in subsequent pro- ceedings unless some new facts or changed conditions are brought to its attention or unless it proceeded upon some misconception in reaching the original decision. Banner Milling Co. v. N. Y. C. & H.R.Ry., 14I.C.C.401. 6 82 THE ACT TO, REGULATE COMMERCE [Sec. 14 Commission Must Make Report of Investigations, Stating Its Conclu- sions and Order — Reparation Sec. U. {Amended March 2, 1889, and June 29, 1906.) That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its decision, order, or requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made. Reports of Investigations Must be Entered of Record — Service of Copies on Parties All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of. Reports and Decisions — Authorized Publication Competent Evidence — Publication and Distribution of Annual Reports of Commission The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for piiblic information and use, and such authorized publications shall be competent evidence of the reports and decisions of the Commis- sion therein contained in all courts of the United States and of the several States without any further proof or authentication thereof. The Commission may also cause to be printed for early distribution its annual reports. As the law formerly was, the Commission was required to make a report in writing in respect to every investigation, which should in- clude the findings of fact upon which the conclusions of the Commis- sion are based, together with its recommendation as to what repara- tion, if any, should be made by the common carrier to any party who may be found to have been injured, but this provision was amended June 29, 1906, so the report shall state the conclusions of the Com- mission, together with its decisions, or requirement in the premises; and in case damages are awarded such report shall include the find- ings of fact on which the award is made. See further under Sec. 16. JUST AND REASONABLE RATES 83 Commission May Determine and Prescribe Just and Reasonable Rates to be Observed as Maximum Charges — Commission May Determine and Prescribe Just and Reasonable Regulations or Practices — Com- mission May Order Carriers to Cease and Desist From Full Extent of Violations Found — Orders of the Commission Efiective as Prescribed but in not Less Than Thirty Days — Orders Shall Continue in Force not Exceeding Two Years, Unless Suspended or Set Aside by Com- mission or Court — When Carriers Fail to Agree on Divisions of Joint Rate Commission May Prescribe Proportion of Such Rate to be Re- ceived by Each Carrier Sec. 15. (As amended June 29, 1906.) That the Commission is authorized and empowered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in section thirteen of this Act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, subject to the provisions of this Act, for the transportation of persons or property as defined in the first section of this Act, or that any regula- tions or practices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation •'s just, fair, and reasonable to be thereafter followed; and to make an order that the carrier shall cease and desist from such violation, to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed. All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a court of competent jurisdiction. Whenever the carrier or carriers, in obedience to such order of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to .agree among themselves upon the apportionment or division thereof, the Commission may after hearing make a supplemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order. 84 THE ACT TO REGULATE COMMERCE [Sec. 15 Oommission May Establish Through Routes and Joint Rates The Commission may also, after hearing on a complaint, estab- lish through routes and joint rates as the maximum to be charged and prescribe the division of such rates as hereinbefore provided, and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any pro- vision of this Act, and the carriers complained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reasonable or satisfactory through route exists, and this provision shall apply when one of the connecting carriers is a water line. Commission May Determine Just and Reasonable Charge or Allowance for Service Rendered by Owner of Property Transported or for Any Instrumentality Furnished by Such Owner and Used in Such Trans- portation If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allow- ance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the service so rendered or for the use of the instru- mentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for in this section. Enumeration of Powers in This Section not Exclusive The foregoing enumeration of powers shall not exclude any power which the Commission would otherwise have in the making of an order under the provisions of this Act. For a discussion of the power granted the Commission by this section see Cattle Raisers' Association v. M. K., & T. Ry., 12 I. C.C.I. Concerted Advance in Freight Rates. 111. Cent. Ry. v. I. C. C, 206 U. S. 441. Through Routes and Joint Rates. Loup Creek Colliery Case, 12 I. C. C. 471. See under Sec. 6. Ordinarily a through route ought not to exceed the sum of the locals, but the Commission has also held that where the sum of the local rates established by state authority is less than a reasonable interstate rate the higher rate may be charged. Montg. Freight Bureau v. W. Ry. of Ala., 14 I. C. C. 150. Allowances. No allowance of any kind not specified in tariffs ALLOWANCES FOR SERVICES 85 can lawfully be paid. La Salle &c. v. Chicago N. W. Ry., 13 I. C. C. 610; Victor Fuel Co. v. A., T. & S. F. Ry., 14 I. C. C. 119. Allowances to Elevators, by the Union Pacific Ry. Co., 14 I. C. C. 315. Allowances for Services. Complainant asks allowances from carriers for maintenance of storage tracks and for switching services. Complainant is not entitled to compensation for doing that which it claims the defendants are under obligation to do, but which it does not and could not permit them to do. Relief against a defend- ant must ordinarily be predicated upon his failure or refusal to do what he is legally bound to do and not upon the fact that the com- plainant has volunteered to do it for him. Carriers are under no duty to extend their transportation obliga- tions with the extension of great industrial plants like that of the complainant. They cannot be called upon as part of their con- tract of transportation to make deliveries through a network of interior switching tracks constructed as plant facilities to meet the necessities of the industry. The service performed by com- plainant is essentially a shipper's service rather than a part of the transportation service, and, that the storage and switch tracks and all the internal arrangements and facilities for moving the cars are for complainant's own convenience and necessary to the economic conduct of its business. The service within the plant is not a service which complainant can lawfully call upon the carriers to perform for it, and consequently is not a service for which it may lawfully demand compensation. Their obligation as common carriers in- cludes only a delivery and acceptance of carload shipments at some reasonably convenient point of interchange. General Electric Co. V. N. Y. C. & H. R. Ry., 14 I. C. C. 237; Solway Process Co. v. D., L. & W. Ry., 14 I. C. C. 246. It has been frequently held by the Commission that it has no power to enforce contracts between carriers and shippers or to aid the parties thereto to enforce them, and it may be added that it is no part of the functions of the Commission to make a finding of an amount due predicated upon a contract, express or implied, which could be the basis of a civil suit for the recovery thereof. The purpose of the Act was to insure fair and equal treatment of shippers by carriers by regulating, more or less, the conduct of the carriers. The powers given to prevent unreasonable rates, unjust discrimination, undue prejudice and advantage, rebates and all forms of inequalities by whatever device employed, including the power to determine and prescribe a reasonable rate, and determine 86 THE ACT TO REGULATE COMMERCE [Sec. 15 and fix a reasonable charge to be paid by the carrier to the shipper, are incidental to the main purpose and necessary to accomplish the intent of Congress. The "allowance" provision is in harmony with and is one of the means provided to accomplish the great purpose of the Act, to be employed when inequalities are discovered. The chief function of the Commission is to inquire into and bring to light the various practices by which the inequalities are brought about, and when ascertained, to impose punishment in the nature of damages in favor of the party injured, against the offending carrier, for and on account of a violation of some provision of the Act. If the allowance produces any inequality and unfair treatment among shippers then the Commission is vested with authority to discover it and punish it as above stated, but it is certain that inequalities among shippers, in the matter of allowances, must be averred and proved. That there has been an infraction of the law, in such cases, is the jurisdictional test of the authority of the Commission to make an order. The power of the Commission, in such cases, is predicated upon an act ex delicto in its nature. If the above is a true statement of the theory and practical effect of the law, it is hard to understand how the General Electric Com- pany could have answered an objection to the jurisdiction of the Commission. The case brought by this complainant was based upon a count of quantum meruit for services performed — a plain common law action of assumpsit upon an implied promise cognizable in the courts exclusively. Reparation is inherently, "damages foi an injury, amends for a tort," and this must mean damages for a civil injury other than a breach of contract. No reparation could have been awarded in any aspect of the case. It had been held in preceding cases that publication of any allow- ances made to shippers was a prerequisite to a lawful payment thereof, but the absence of any provision in the tariffs of the de- fendants making allowances for services rendered or instrumentalities furnished, apparently did not influence the decision in this case. It is probable the Commission could not require the carriers to make and publish an allowance, because this would oblige carriers to perform contracts of a nature never contemplated by them and not affected with any public interest involving rights of transporta- tion, and because Congress left it to the carriers to establish their own rates, regulations and allowances in the first instance, and, further, because no such power is vested in the Commission by law, expressly or by necessary implication. AWARD OF DAMAGES 87 Award of Damages by Commission Sec. 16. {Amended March 2, 1889. Following section substituted June 29, 1906.) That if, after hearing on a complaint made as pro- vided in section thirteen of this Act, the Commission shall deter- mine that any party complainant is entitled to an award of dam- ages under the provisions of this Act for a violation there6f , 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. Petition to United States Court in Case Carrier Does not Comply with Order for Payment of Money — Findings of Fact of Commission Shall be Prima Facie Evidence in Reparation Cases — Petitioner not Liable for Costs in Circuit Court — Petitioner's Attorney's Fees — Limitation Upon Action — Accrued Claims 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 circuit court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the peti- tioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforce- ment of an order for the payment of money shall be filed in the circuit court within one year from the date of the order, and not after: Provided, That claims accrued prior to the passage of this Act may be presented within one year. Joint PlaintiSs May Sue Joint Defendants in Courts on Awards of Dam- ages — Service of Process In such suits all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and sucli suit may be main- 88 THE ACT TO REGULATE COMMERCE [Sec. 16 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 not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal operating office. In case of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff. Service of Order of Oommission by Mailing^ Every order of the Commission shall be forthwith served by mailing to any one of the principal officers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence of the receipt of such order by the carrier in due course of mail. Commission May Suspend or Modify Order The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. Carriers, Their Agents and Employees, Must Comply with Such Orders It shall be the duty of every common carrier, its agents and em- ployees, to observe and comply with such orders so long as the same shall remain in effect. Punishment by Forfeiture for Refusal to Obey Order of Oommission Under Sec. 16 Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who know- ingly fails or neglects to obey any order made under the provisions of section fifteen of this Act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct viola- tion shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. Forfeiture Payable into Treasury and Recoverable in Civil Suit The forfeiture provided for in this Act shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States, brought in the district wher" the carrier has its principal operating office, or in any district through which the road of the carrier runs. Duty of District Attorneys to Prosecute — Costs and Expenses to be Paid out of Appropriation for Court Expenses— Commission May Employ Special Counsel It shall be the duty of the various District Attorneys, under the THE ACT TO REGULATE COMMERCE 89 direction of the Attorney-General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. The Commission may, with the consent of the Attorney-General, employ special qounsel in any proceeding under this Act, paying the expenses of such employ- ment out of its own appropriation. Petition to United States Courts in Oases of Disobedience to Order of Commission Other Than for Payment of Money — Jurisdiction of Court — Court Must Enforce Disobeyed Order if Regularly Made and Duly Served If any carrier fails or neglects to obey any order of the Commission, other than for the payment of money, while the same is in effect, any party injured thereby, or the Commission in its own name, may apply to the circuit court in the district where such carrier has its principal operating office, or in which the violation or disobedience of such order shall happen, for an enforcement of such order. Such application shall be by petition, which shall state the substance of the order and the respect in which the carrier has failed of obedience, and shall be served upon the carrier in such manner as the court may direct, and the court shall prosecute such inquiries and make such investigations, through such means as it shall deem needful in the ascertainment of the facts at issue or which may arise upon the hearing of such petition. If, upon such hearing as the court may determine to be necessary, it appears that the order was regularly made and duly served, and that the carrier is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction,- or other proper process, mandatory or otherwise, to restrain such carrier, its officers, agents, or representatives, from further disobedience of such order, or to enjoin upon it, or them, obedience to the same; and in the enforcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to its writs of injunction and mandamus. Appeal to Supreme Court of United States From any action upon such petition an appeal shall lie by either party to the Supreme Court of the United States, and in such court the case shall have priority in hearing and determination over all other causes except criminal causes, but such appeal shall not vacate or suspend the order appealed from. Venue of Suits Brought Against Commission to Enjoin, Set Aside, Annul, or Suspend Order of Commission — Provisions of Expediting Act to Apply — Appeal to Supreme Court — Priority of Case in Supreme Court — No Injunction or Interlocutory Order to be Granted Except After not Less Than Five Days' Notif-e — Appeal to Supreme Court Prom Interlocutory Order or Decree in Thirty Days The venue of suits brought in any of the circuit courts of the United 90 THE ACT TO REGULATE COMMERCE [Sec. 16 States against the Commission to enjoin, set aside, annul, or suspend any order or requirement of the Commission shall be in the district where the carrier against whom such order or requirement may have been made has its principal operating office, and may be brought at any time after such order is promulgated. And if the order or re- quirement has been made against two or more carriers then in the dis- trict where any one of said carriers has its principal operating office, and if the carrier has its principal operating office in the District of Columbia then the venue shall be in the district where said carrier has its principal office; and jurisdiction to hear and determine such suits is hereby vested in such courts. The provisions of "An Act to expedite the hearing and determination of suits in equity, and so forth," approved February eleventh, nineteen hundred and three, shall be, and are hereby, made applicable to all such suits, including the hearing on an application for a preliminary injunction, and are also made applicable to any proceeding in equity to enforce any order or requirement of the Commission, or any of the provisions of the Act to regulate commerce approved February fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof or sup- plemental thereto. It shall be the duty of the Attorney-General in every such case to file the certificate provided for in said expedit- ing Act of February eleventh, nineteen hundred and three, as neces- sary to the application of the provisions thereof, and upon appeal as therein authorized to the Supreme Court of the United States, the case shall have in such court priority in hearing and determination over all other causes except criminal causes: Provided, That no in- junction, interlocutory order or decree suspending or restraining the enforcement of an order of the Commission shall be granted except on hearing after not less than five days' notice to the Commission. An appeal may be taken from any interlocutory order or decree granting or continuing an injunction in any suit/but shall lie only to the Supreme Court of the United States: Provided further, That the appeal must be taken within thirty days from the entry of such order or decree and it shall take precedence in the appellate court over all other causes, except causes of like character and criminal causes. Rate Schedules, Contracts, or Agreements, and Carriers' Annual Re- ports Filed With Commission and in Custody of Secretary are Public Records, Receivable in Courts and by the Commission as Prima Facie Evidence— Certified Copies or Extracts Therefrom Also Prima Facie Evidence The copies of schedules and tariffs of rates, fares, and charges, and of all contracts, agreements, or arrangements between common carriers filed with the Commission as herein provided, and the statis- tics, tables, and figures contained in the annual reports of carriers made to the Commission, as required by the provisions of this Act, shall be preserved as public records in the custody of the secretary of the Commission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Com- THE ACT TO REGULATE COMMERCE 91 mission and in all judicial proceedings; and copies of or extracts from any of said schedules, tariffs, contracts, agreements, arrange- ments, or reports made public records as aforesaid, certified by the secretary under its seal, shall be received in evidence with like effect as the originals. Procedure. A proceeding to enforce an order of the Commis- sion is an original independent proceeding in which the questions at issue are tried and determined de novo. The court is not restricted to the mere ministerial duty of enforcing the order of the Commis- sion. I. C. C. V. Cincinnati, 162 U. S. 184; Kentilckf v. L. & N. Rys, 37 Fed. R. 567; I. C. C. v. So. Pac. Ry., 123 Fed. R. 601. Upon demurrer the findings will be liberally coftstriied in ordet to support the order of the Commission. I. C. C. v. Chicago The Railroad Company. J You are hereby notified that G. H. will be examined before C. D., a (title of officer or magistrate), at , on the day of , 190 — , at o'clock in the noon, as a witness for the above-named complainant {or defendant, as the case may be), accord- ing to act of Congress in such case made and provided, and the Rules of Practice of the Interstate Commerce Commission, at which time and place you are notified to be present and take part in the examination of the said witness. Dated , 190—. I. J. (Signature of complainant or defendant, or of counsel.) To A. B., the above-named complainant (or The Railroad Company, the above-named defendant; or to K. L., counsel for the above-named complainant or defendant). CHAPTER XX POWER OF CONGRESS OVER mTERSTATE COMMERCE Provisions Contained in the Constitution of the United States Re- lating to Commerce The Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian tribes. Art. I, Sec. 8, Par. 3. The Congress shall have power to make all laws which shall be necessary and proper for carrying into effect the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or any officer thereof. Art. I, Sec. 8, Par. 18. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor sha,ll vessels bound to or from one State be obliged to enter or pay duties in another. Art. I, Sec, 9, Par. 5. The citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States. Art. IV, Sec. 3. 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. Art. VI, Par. 2. The powers not delegated to the United States by this Constitu- tion nor prohibited by it to the States are reserved to the States respectively, or to the people. Amendment X. 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 citi- zens 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 law. Amendment XIV. The power to regulate is to prescribe the rule by which the com- merce is to be governed. This power, like all others vested in Con- gress, is complete in itself, may be exercised to its utmost extent, 332 POWER TO REGULATE COMMERCE 333 and acknowledges no limitations other than are prescribed in the Constitution. If, as has already been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions in the exercise of the power as are found in the Constitution of the United States. Gibbons v. Ogden, 9 Wheat. 1, 197; 6 L. ed. 23, 70. It is obvious that the government, in regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers, — tha,t, for example, of regulating commerce within a State. Gibbons V. 'bgde-n, 9 Wheat. 204; 6 L. ed. 72. " The power to regulate commerce . . . amounts to nothing more than a power to limit and restrain it at pleasure." Gibbons. V. Ogden, 9 Wheat. 227; 6 L. ed. 77. It may be doubted whether aiiy of the evils proceeding from the feebleness of the Federial government contributed more to that great revolution which induced the present system than the deep and gen- eral conviction that commferCe oUght to be regulated by Congress. It is not, therefore, inatter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign com- merce and all comttierce afisiiig among the States. Brown v. Mary- land, 12 Wheat. 446 ; 6 L. ed. 688. / The power to regulate 'donimerce includes that of punishing all offenses against commerce. U. S. v. Coombs, 12 Pet. 72; 9 L. ed. 1004. The design and object of that power, as evinced in the history of the Constitution, was to establish a perfect equality amongst the several States as to commercial rights, and to prevent unjust and invidious distinctions which local jeklbUsies or local and partial in- terests niight be disposed to introduce and maintain. Veazie v. Moor, 14 How. 574; 14 L. ed. 547. " Commerce is a term of the largest import. . . . The power to tegulate it embraces all the instruments by which such commerce may be conducted." Welton v. Missouri, 91 U. S. 280; 23 L. ed. 349. The power cottfBrred upon Congress to regulate commerce with foreign nations and among the several States is not confined to the instrumentalities of commerce known or in use when the Constitution was adopted, but keeps pace with the progress of the country, and adapts itself to the new developments of time and of circumstances. It -^was intended for the government of the business to which it relates 334 POWER TO REGULATE COMMERCE at all times and under all circumstances; and it is not only the right, but the duty, of Congress to take care that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily incumbered by state legislation. Pensacola Teleg. Co. V. Western U. Teleg. Co., 96 U. S. 9; 24 L. ed. 710. " The power to regulate that commerce, . . . vested in Con- gress, is the power to prescribe the rules by which it shall be governed, — that is, the conditions upon which it shall be conducted. . . . The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged." Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 203; 29 L. ed. 161; 1 1. C. Rep. 382. When 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 Daniel Ball, 10 Wall. 565, sub nom. The Daniel Ball v. U. S., 19 L. ed. 1002. But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. Coe V. Errol, 116 U. S. 517; 29 L. ed. 715. This species of legislation is one which must be, if established at all, of a general and national character. W., St. L. & P. Ry. v. Illi- nois, 118 U. S. 577; 30 L. ed. 251. For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Mobile County v. Kimball, 102 U. S. 691; 26 L. ed. 238. The power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects quite unlike in their nature. Cooley v. Philadelphia Port Wardens, 12 How. 299; 13 L. ed. 996. The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations. Brown v. Houston, 114 U. S. 622; 29 L. ed. 257. The uses of railroad corporations are public, and therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice and oppression. N. Y. & N. E. Ry. V. Bristol, 151 U. S. 556; 38 L. ed. 269. Congress has plenary power, subject to the limitations imposed by the Constitution, to prescribe the rule by which commerce among the several States is to be governed, and may, in its discretion, em- ploy any appropriate means, not forbidden by the Constitution, to POWER TO REGULATE COMMERCE 335 carry into effect, and accomplish the objects of, a power given to it by the Constitution. I. C. C. v. Brimson, 154 U. S. 447; 38 L. ed. 1047; 4 I. C. Rep. 545. The making and fixing of rates by either a legislature directly or by a commission do not work a deprivation of property without due process of law. Munn v. Illinois, 94 U. S. 113; 24 L. ed. 77; David- son V. New Orleans, 96 U. S. 97; 24 L. ed. 616; Stone v. Farmers' Loan & T. Co., 116 U. S. 307; 29 L. ed. 636; Dow v. Beidelman, 125 U. S. 680; 31 L. ed. 841; 2 I. C. Rep. 56; M. & St. L. R. Co. v. Beckwith, 129 U. S. 26; 32 L. ed. 585, and cases cited; Budd v. New York, 143 U. S. 517; 36 L. ed. 247; 4 I. C. Rep. 45; N. Y. & N. E. Ry. V. Bristol, 151 U. S. 556; 38 L. ed. 269; Reagan v. Farmers' Loan & T. Co., 154 U. S. 362; 38 L. ed. 1014; 4 I. C. Rep. 560. The State does not lose the right to fix the price because an indi- vidual voluntarily undertakes to do the (public) work. Budd v. New York, 143 U. S. 517; 36 L. ed. 247; 4 1. C. Rep. 45. The Nebraska statute fixing maximum rates is not obnoxious to the Fourteenth Amendment. Ames v. Union P. Ry., 64 Fed R. 165; 4 I. C. Rep. 835. The compelling of railway companies to comply with the order of railroad commissioners regulating rates is due process of law. 8 Am. & Eng. Enc. of Law, 911; C, M. & St. P. Ry. v. Becker, 32 Fed. R. 849; L. & N. Ry. v. Railroad Commission, 19 Fed. Rep. 679, 16 Am. & Eng. R. Cas. 1; Railroad Comrs. v. Oregon R. & Nav. Co., 17 Or. 65; 2 L. R. A. 195; 35 Am. & Eng. R. Cas. 542; State ex rel. Rail- road & Warehouse Commission v. C, M. & St. P. Ry., 38 Minn. 281, 37 N. W. 782; Stone v. N., J. & C. R. Co., 62 Miss. 646; Stone v. Farmers' Loan & T. Co., 116 U. S. 307; 29 L. ed. 636; State ex rel. Board of Transportation v. F., E. & M. Valley Ry., 22 Neb. 313; 32 Am. & Eng. R. Cas. 426; People v. N. Y., L. E. & W. Ry., 104 N. Y. 58; State v. N. H. & N. Ry., 37 Conn. 153. " The principal objects of the Interstate Commerce Act were to se- cure just and reasonable charges for transportation. . . ." I. C. C. V. B. & 0. Ry., 145 U. S. 263; 36 L. ed. 699; 4 I. C. Rep. 92. It is difficult to perceive how the power to fix and regulate the charges for such transportation can be considered in any other light than that of a power to regulate commerce. 111. Cent. Ry. v. Stone, 20 Fed. R. 468. It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions if it shall be deemed advisable. Cooley, Const Lira., 732, quoted with approval by Mr. 336 POWER TO REGULATE COMMERCE Justice Field in the case of Gloucester Ferry Co. v. Pehhsylvania, 114 U. S. 196; 29 L. ed. 158; 1 I. C. Rep. 382. That this power to regulate by fixing charg'es for interstate trans- portation is vested solely in Congress by Article I, Section 8, para- graph 3 of the Constitution of the United States is, in my opinion, equally well settled by numerous decisions of the Supreme Court of the United States. M. & O. Ry. v. Sessions, 28 Fed. R. 592. Several of the state statutes, under state constitutions containing nearly identical provisions on the subject as the Federal Constitu- tion, allowing state failrbad commissiohs to make and fix railway rates for such States, which said rates were to be operative until set aside by the courts, have been upheld as valid and constitutional by the United States Supreme Court. See P. & A. Ry. v. State (Fla.), 3 L. R. A. 661, wit'h extensive notes to that case and notes to W. & L. Tump. Road Co. v. Cfoxton (Ky.), 33 L. R. A. 177. This Federal Cbiminission has assigned tq it the duties, and per- forms for the United States in respect to that interstate commerce committed by the Constitution to the exclusive care and jurisdiction of Congress the same functions, which state commissioners exercise in respect to local or purely internal commerce, over which the States appointing them haVe exclusive control. Their validity in their respective spheres of operatioil stands upon the same footing. The validity of state commissions invested with powers as ample and large as those conferred upoii the Federal Commission has not been successfully questioned when limited to that local or internal com- merce over which the States have exclusive jurisdiction; and no valid reason is seen for doubting or questioning the authority of Congress, under its sovereign and exclusive power to regulate com- merce among the several States, to create like commissions for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce. What one sovereign may do in respect to matters within its exclusive control, the other may certainly do in respect to matters over which it has exclusive authority. Kentucky & I. Bridge Co. v. L. & N. Ry., 37 Fed. R. 567; 2 I. C. tlep. 380; 2 L. R. A. 289. The power granted to Congress to regulate commerce is necessarily exclusive whenever the si:ft)jects of it are national or admit only of one uniform system or plan of regulation throughout the coun- try. ... In the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulation, and not to a multitude of systems. Robbins V. Shelby County Taxing Dist., 120 U. S. 489; 30 L. ed. 694; POWER TO REGULATE COMMERCE 337 1 I. C. Rep. 45; Stoutenburgh v. Hennick, 129 U. S. 141; 32 L. ed. 637. Congress may, under certain conditions, reduce the rates of fare on the Union Pacific Railroad, if unreasonable, and fix and establish the same by law. 12 Stat. L. 497, chap. 120, sec. 18. This statute is discussed by Mr. Justice Brewer in Ames v. Union P. Ry., 64 Fed. R. 165; 4 I. C. Rep. 835, and held not to conclude the State of Ne- braska from fixing rates until Congress takes action. This act (of Colorado) was intended to apply to intrastate traffic the same wholesome rules and regulations which Congress two years thereafter applied to commerce between the States. Union P. Ry. V. Goodridge, 149 U. S. 680; 37 L. ed. 896. The Interstate Commerce Commission is an administrative board, and the courts are only to be resorted to when the Commission pre- fers to enforce the provisions of the statute by a direct proceeding in the court, or when the orders of the Commission have been disre- garded. I. C. C. V. C, N. 0. & T. P. Ry., 162 U. S. 184; 40 L. ed. 935; 5 I. C. Rep. 391. Upon the power of legislatures to fix tolls, rates or prices, see note to case of Winchester & L. Tump. Road Co. v. Croxton (Ky.), 33 L. R. A. 177. A statute imposing a penalty for charging more than just and reasonable compensation for the services of a carrier, without fixing any standard to determine what is just and reasonable, thus leaving the criminality of the carrier's act to depend on the jury's view of the reasonableness of a rate charged, is in violatign of the constitutional provision against taking property without due process of law. L. & N. Ry. V. Com., 99 Ky. 132; 33 L. R. A. 209. Penalties cannot be thus inflicted at the discretion of a jury. . . . The legislature cannot delegate this power to a jury. If it can declare it a criminal act for a railroad corporation to take more than a "fair and just return" on its investments, it must, in order to maintain the validity of the law, define with reasonable certainty what would constitute such "fair and just return." L. & N. Ry. v. Railroad Commission, 19 Fed. R. 679. The Supreme Court of the United States, in Railroad Commission Cases, 116 U. S. 336, sub nom. Stone v. Farmers' Loan & T. Co., 29 L. ed. 646, refers to the last-named case and substantially approves it. Although a statute has been held to be unconstitutional which left it to the jury to determine whether or not a charge was excessive and unreasonable, in order to ascertain whether a penalty is recover- 22 338 POWER TO REGULATE COMMERCE able, yet, where the action is merely for recovery of the illegal excess over reasonable rates, this is a question which is a proper one for a jury. 8 Am. & Eng. Ency. oi Law, 935. The Iowa railroad commission act was attacked for uncertainty on ih.e ground that it dad not prescribe what should constitute a rea- sonable rate; but as the statute declared that the rate fixed by the Commission should be prima facie evidence that it was reasonable, although the accused could show in defense that it was not reason- able, the Supreme Court of the State held that the statute was suffi- ciently definite, since the rate was fixed, although it was subject to attack in the courts. To the claim that the commissioners' rate would not secure the accused from conviction if it was excessive, the court declared that the State was precluded from denying that the commissioners' rate was a reasonable one. B., C. R. & N. Ry. v. Dey, 82 Iowa, 312; 3 I. C. Rep. 584; 12 L. R. A. 436. The same decision in substance was made on this question by Judge Brewer, then of the United States Circuit Court, in the case of C. & N. W. Ry. v. Dey, 35 Fed. R. 866; 2 I. C. Rep. 325; 1 L. R. A. 744. The Illinois act providing that a charge by a railroad company of more than reasonable rates shall constitute extortion is held to be sufficiently definite when construed with another section which pro- vides that the railroad commission shall make a schedule of reasonable maximum rates. C, B. & Q. Ry. v. People, 77 111. 443. And the validity of this provision of the Illinois statute has been further established by,the Illinois Supreme Court. See C, B. & Q. Ry. V. Jones, 149 111. 361; 4 1. C. Rep. 683; 24 L. R. A. 141; Stone v. Farmers' Loan & T. Co., 116 U. S. 307; 29 L. ed. 636, deciding the same way the Mississippi statute. The Georgia statute is not violated unless the rates charged exceed those fixed by the Commission. Sorrell v. Central R. Co., 75 Ga. 509. But in order to constitute a crime the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. Tozer v. U. S., 52 Fed. R. 917; 4 I. C. Rep. 245. An inquiry whether rates of carriers are reasonable or not is a judicial act; but to prescribe rates for the future is a legidative act. That Congress has transferred to any administrative body the power to prescribe a tariff of rates for carriage by a common carrier is not to be presumed or implied from any doubtful and uncertain language. If Congress had intended to grant such a power to the Interstate POWER TO REGULATE COMMERCE 339 Commerce Commission, it camiot be doubted that it would have used language open to no misconstruction, but clear and direct. I. C. C. V. C, N. O. & T. P. Ry., 167 U. S. 479; 42 L. ed. 243. In the case of Munn v. Illinois, 94 U. S. 113; 24 L. ed. 77, the Supreme Court of the United States, after a thorough review of the American and English authorities, has laid down the following funda- mental principles governing public carriers and other quasi-public institutions: 1. Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for the public good, the manner in which each shall use his own property. 2. It has, in the exercise of these powers, been customary in Eng- land from time immemorial, and in this country from the first colon- ization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, auctioneers, innkeepers, and many other mat- ters of like quality, and in so doing to fix a maximum charge to be made for services rendered, accommodations furnished, and articles sold. 3. The Fourteenth Amendment to the United States Constitution does not in any wise amend the law in this particular. 4. When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be con- trolled by the public. 5. The limitation by legislative enactment of the rate of charges for services rendered in an employment of a public nature, or for the use of property in which the public has an interest, establishes no new principle in the law, but only gives a new effect to an old one. Thus the highest court has permanently established the broad principle that the public have the right to regulate charges in all enterprises affected with a public use. To this doctrine all the courts have steadfastly adhered. In this leadiug case it was also held that the courts had no right to interfere with the rates fixed by the law- making power. This doctrine, however, has been since somewhat qualified in the case of Reagan v. Farmers' Loan & T. Co., 1,54 U. S. 412; 38 L. ed. 1028; 4 L C. Rep. 1028, and other cases there cited, where it is held that when rates are confiscatory the courts may so declare and relegate the matter back to the lawmaking power for new rates, by which a reasonable profit is left to the carrier. But the principle that the legislative power, either directly or indirectly through a commission, can fix rates of freight and passenger traffic 340 POWER TO REGULATE COMMERCE within this constitutional limitation, has been uniformly upheld in all the decisions of the United States Supreme Court upon this sub- ject. From the public nature of the business of railroads and the interest which the public have in their operation, they are subject to state regulation, as to their state business. Munn v. Illinois, 94 U. S. 113; Ruggles V. Illinois, 108 U. S. 526, 541; Wabash &c. Ry. v. lUinois, 118 U. S. 557. The public power to regulate and the private right of ownership co-exist and do not the one destroy the other, but the power to regulate cannot be arbitrarily exercised so as to infringe the right of ownership. (See cases cited above.) A State may, in proper cases, order railroads to make through con- nections, and such order is not inherently unjust and unreasonable because the running of such train will impose some pecuniary loss on the company. Atlantic Coast Line Ry. v. North Carolina, 206 U. S. 1. When goods cease to be subject to interstate commerce. Heyman V. So. Ry., 203 U. S. 270. When, if in carload lots. Gulf &c. v. Texas, 204 U. S. 403. Right of state commission to. stop interstate trains at stations. Mississippi v. 111. Cent. Ry., 203 U. S. 335. Police Power. Burden upon interstate commerce. H. & T. Cent. Ry. V. Mayes, 201 U. S. 321; McNeil v. So. R. Co., 202 U. S. 543; McLean v. Denver & Rio Grande Ry., 203 U. S. 38; Mississippi v. 111. Cent. Ry., 203 U. S. 335; Logan v. Postal Tel. Co., 157 Fed. R. 570. Franchises of a corporation chartered by a State are, so far as they involve questions of interstate commerce, exercised in subordination to the power of Congress to regulate such commerce; and while Con- gress may not have general visitorial power over state corporations, its powers in vindication of its own laws are the same as if the cor- poration had been created by an act of Congress. Hale v. Henkel, 201 U. S. 43. Power of Congress to Regtilate the Rates of Railways Engaged in Interstate Commerce There is a governmental power to regulate the operations of rail- roads acting as common carriers, and, as a part of such regulation, to prescribe the maximum rates which they may charge in the future for the services which they shall render to those who resort to them. POWER TO REGULATE COMMERCE 341 and that the power is vested in and may be exercised by the legisla- tive branch of the government. (Granger cases) Munn v. Illinois, 94 U. S. 113; Ruggles v. Illinois, 108 U. S. 526, 541; St. L. & Pac. Ry. V. Illinois, 118 U. S. 557. The duty of determining the rates in the future may be delegated to an administrative body and a grant of such power is not a delega- tion of the legislative authority. Railroad Commission Cases, 116 U. S. 307; Reagan v. Farmers' &c., 154 U. S. 362; I. C. C. v. C, N. 0. & Tex. Pac. Ry., 167 U. S. 479. The rate-making power is not a judicial function and cannot be conferred constitutionally upon the courts of the United States, either by way of original or appellate jurisdiction. Reagan v. Farm- ers' &c., 154 U. S. 362; I. C. C. v. C, N. 0. & Texas Pac. Ry., 167 U. S. 479. The courts have the power to investigate any rate or rates fixed by legislative authority and to determine whether they are such as would be confiscatory of the property of the carrier, and if they are judicially found to be confiscatory in their effect, to restrain their enforcement. St. L. & S. F. Ry. v. Gill, 156 U. S. 649; Smyth v. Ames, 169 U. S. 466; 164 U. S. 578. A legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates. Chicago v. Wellman, 143 U. S. 339, 344; Stone v. Farmers', 116 U. S. 307; Chicago V. Minnesota, 134 U. S. 418. CHAPTER XXI EMPLOYERS' LIABILITY ACT An Act Relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers Engaged in Commerce Between the States and Between the States and Foreign Nations to Their Employees Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every com- mon carrier engaged in trade or commerce in the District of Colum- bia, or in any Territory of the United States, or between the several States, or between any Territory and another, or between any Terri- tory or Territories and any State or States, or the District of Colum- bia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, shall be liable to any of its employees, or, in the case of his death, to his personal representa- tive for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufii- ciency due to its negligence in its cars, engines, appliances, ma- chinery, track, roadbed, ways, or works. Sec. 2. That in all actions hereafter brought against any com- mon carriers to recover damages for personal injuries to an em- ployee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negli- gence attributable to such employee. All questions of negligence and contributory negligence shall be for the jury. Sec. 3. That no contract of employment, msurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employee, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for per- sonal injuries to or death of such employee: Provided, however, That upon the trial of such action against any common carrier the defend- ant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employee, or, in case of his death, to his personal repre- sentative. 342 EMPLOYERS' LIABILITY ACT 343 Sec. 4. That no action shall be maintained under this Act, unless commenced within one year from the time the cause of action accrued. Sec. 5. That nothing in this Act shall be held to limit the duty of common carriers by railroads or impair the rights of their employees under the safety-appliance Act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three. Approved June 11, 1906. Act of June 11, 1906, Declared Uoiconstitutional The test of the power of Congress to regulate commerce is not merely the matter regulated, but whether the regulation is directly one of interstate commerce or is embraced within the grant con- ferred on Congress to use all lawful means necessary and appropriate to the execution of this power. We do not hold that Congress is without power to regulate the relation of master and servant, to the extent that regulations adopted by Congress on that sabjeci are solely confined to interstate commerce, but this poweT cannot be lawfully extended so as to include the regulation of the relation of master and servant or of servants among themselves as to things which are not interstate commerce. The face of the Act shows that the power which it asserts extends not only to the relation of master and serv- ant and servants among themselves as to things which are wholly interstate commerce, but embraces those relations as to matters and things domestic in their character, and which do not come within the authority of Congress. The statute deals with all the concerns of the individuals or corporations to which it relates if they engage as com- mon carriers in trade or commerce between the States, etc., and does not confine itself to the interstate commerce business which may be done by such persons. The statute is addressed to the individuals or corporations who are engaged in interstate commerce, and is not confined solely to regulating the interstate commerce business which such persons may do. It regulates the persons because they engage in interstate commerce, and does not alone regulate the business of interstate commerce. The liability to the servant is coextensive with the business done by the employers whom the statute em- braces; that is, it is in favor of any of the employees of all carriers who engage in interstate commerce. The Act being addressed to all common carriers and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes subjects wholly out- 344 EMPLOYEES' LIABILITY ACT side of the power of Congress to regulate commerce. As the Act includes many subjects wholly beyond the power of Congress to regulate commerce, and depends for its sanction upon that authority, it results that the Act is repugnant to the Constitution and cannot be enforced, and whilst it embraces subjects within the authority of Congress to regulate commerce, it also includes subjects not within its constitutional power, and the two are so interblended in the statute that they are incapable of separation, the statute is repug- nant to the Constitution and non-enforceable. Howard v. 111. Cent. Ry., 207 U. S. 463. EMPLOYERS' LIABILITY ACT Passed April 22, 1908 An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every common carrier by railroad whi'e engaging in commerce between any of the several States or Territories, or between any of the States and Terri- tories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin de- pendent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Sec. 2. That every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other posses- sions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its EMPLOYERS' LIABILITY ACT 345 negligence, in its cars, engines, appliances, machinery, track, road- bed, works, boats, wharves, or other equipment. Sec. 3. That in all actions hereafter brought against any such com- mon carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such em- ployee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any stat- ute enacted for the safety of employees contributed to the injury or death of such employee. Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employ- ment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. Sec. 5. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common car- rier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provi- sions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indem- nity that may have been paid to the injured employee or the per- son entitled thereto on account of the injury or death for which said action was brought. Sec. 6. That no action shall be maintained under this Act unless commenced within two years from the day the cause of action ac- crued. Sec. 7. That the term "common carrier" as used in this Act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the busi- ness of a common carrier. Sec. 8. That nothing in this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other Act or Acts of Congress, or to affect the prosecu- tion of any pending proceeding or right of action under the Act of Congress entitled "An Act relating to liability of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees," approved June eleventh, nineteen hundred and six. Approved April 22, 1908. CHAPTER XXII THE SHERMAN ANTI-TRUST ACT TOGETHER WITH A DI- GEST OF THE PRINCIPAL DECISIONS OF THE SUPREME COURT RELATING THERETO Act of July 2, 1890 (26 Stat. 209) An Act to Protect Trade and Commerce Against Unlawful Re- straints and Monopolies Be it enacted by the Senate and House of Representatives of the Uni- ted States of America in Congress assembled. Sec. 1. Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be ille- gal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceed- ing one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopolize, or attempt to monop- olize, or combine or conspire with any other person or persons,, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misde- meanor, and, on conviction thereof, shall be punished by fine not ex- ceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or be- tween any such Territory or Territories and any State or States of the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars,, or by impris- onment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 4. The several circuit courts of the United States are hereby 346 THE SHERMAN ANTI-TRUST ACT 347 invested with jurisdiction to prevent and restrain violations of ttiis act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of peti- tion setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall pro- ceed, as soon as may be, to the hearing and determination of the ease; and pending such petition and before final decree, the comrt may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. Sec. 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and sub- poenas to that end may be served in any district by the marshal thereof. Sec. 6. Any property owned under any contract or by any com- bination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be seized and con- demned by like proceedings as those provided by law for the forfei- ture, seizure, and condemnation of property imported into the Uni- ted States contrary to law. Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any cir- cuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. Sec. 8. That the word "person," or "persons," wherever used in this act shall be deemed to include corporations and associations ex- isting under or authorized by the laws of either the United States, or the laws of any of the Territories, the laws of any State, or the laws of any foreign country. Anti-trust Amendments to the Wilson Tariff Act of August 27, 1894— Sections 73-77 (28 Stat. 570) Sec. 73. That every combination, conspiracy, trust, agreement, or contract is hereby declared to be contrary to public policy, ille- gal, and void, when the same is made by or between two or more persons or corporations either of whom is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement, or contract is in- tended to operate in restraint of lawful trade, or free competition in 348 THE SHERMAN ANTI-TRUST ACT lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or in- tended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged in the impor- tation of goods or any commodity from any foreign country in vio- lation of this section of this act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor, and, on conviction thereof in any court of the United States, such person shall be fined in a sum not less than one hundred dollars and not ex- ceeding five thousand dollars, and shall be further punished by im- prisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months. Sec. 74. That the several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of section seventy-three of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petitions setting forth the case and praying that such violations shall be enjoined or otherwise pro- hibited. When the parties complained of shall have been duly no- tified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such peti- tion and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. Sec. 75. That whenever it shall appear to the court before which any proceeding under the seventy-fourth section of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be sum- moned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof. Sec. 76. That any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section seventy-three of this act, and being in the course of transportation from one State to another, or to or from a Territory, or the District of Columbia, shall be forfeited to the United States, and may be seized and condemned by like pro- ceedings as those provided by law for the forfeiture, seizure, and con- demnation of property imported into the United States contrary to law. Sec. 77. That any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in con- troversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. THE SHERMAN ANTI-TRUST ACT 349 The Foregoing Sections were Expressly Preserved in tlie Dingley Act of 1897, Section 34 of that Act (30 Stat. 213) Concludes as Follows: " And further provided, That nothing in this act shall be construed to repeal or in any manner affect the sections numbered seventy- three, seventy-four, seventy-five, seventy-six, and seventy-seven of an act entitled 'An act to reduce taxation, to provide revenue for the Government, and for other purposes,' which became a law on the twenty-eighth day of August, eighteen hundred and ninety- four." [32 Stat. 864, 903.] An Act Making Appropriations for the Legislative, Executive, and Judicial Expenses of the Government for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Four, and for Other Pur- poses That for the enforcement of the provisions of the Act entitled "An Act to regulate commerce," approved February fourth, eight- een hundred and eighty-seven, and all Acts amendatory thereof or supplemental thereto, and of the Act entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," approved July second, eighteen hundred and ninety, and all Acts amendatory thereof or supplemental thereto, and sections seventy- three, seventy-four, seventy-five, and seventy-six of the Act entitled "An Act to reduce taxation, to provide revenue for the Govern- ment, and for other purposes," approved August twenty-seventh^ eighteen hundred and ninety-four, the sum of five hundred thou- sand dollars, to be immediately available, is hereby appropriated, out of any money in the Treasury not heretofore appropriated, to be expended under the direction of the Attorney-General in the em- ployment of special counsel and agents of the Department of Jus- tice to conduct proceedings, suits, and prosecutions under said Acts in the courts of the United States: Provided, That no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said Acts: Provided further, That no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying. ******** Approved February 25, 1903. 350 THE SHERMAN ANTI-TRUST ACT [32 Stat. 1031, 1062.] An Act Making Appropriations to Supply Deficiencies in the Ap- propriations for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Three, and for Prior Years, and for Other Purposes ***** *** That under, and to be paid from, the appropriation of five hun- dred thousand dollars for the enforcement of the provisions of the Act entitled "An Act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, and all Acts amenda- tory thereof or supplemental thereto, and other Acts mentioned in said appropriation, made in the legislative, executive, and judicial appropriation Act for the fiscal year nineteen hundred and four, the President is authorized to appoint, by and with the advice and con- sent of the Senate, an assistant to the Attorney-General with com- pensation at the rate of seven thousand dollars per annum and an Assistant Attorney-General at a compensation at the rate of five thousand dollars per annum; and the Attorney-General is author- ized to appoint and employ, without reference to the rules and regulations of the civil service, two confidential clerks at a compen- sation at the rate of one thousand six hundred dollars each per an- num, to be paid from said appropriation. Said assistant to the At- torney-General and Assistant Attorney-General shall perform such duties as may be required of them by the Attorney-General. Approved March 3, 1903. United States v. E. C. Knight Company (Sugar Trust) (156 U. S. 1; U. S. Supreme Court, March 26, 1894; Opin., Ful- ler, Ch. J., Harlan, J., dissenting.) It appeared in this case that, by the purchase of the stock of four Philadelphia refineries, through the exchange of shares of its own stock, the American Sugar Refining Company acquired nearly a complete control of the manufacture of refined sugar in the United States. The government charged that the contracts under which these purchases were made constituted combinations in restraint of trade or commerce in refined sugar among the several States and with foreign nations and asked the cancellation of the contracts and the redelivery of the stock. The government's contention was that the purpose of the purchase was to acquire a substantial monopoly of sugar refining, and as the product was a necessary of life, manufactured for sale and distribu- tion among the several States and in foreign countries, that the THE SHERMAN ANTI-TRUST ACT 351 effect of the arrangement was to restrain and monopolize interstate and foreign commerce. But the Supreme Court held that, conceding a monopoly was created, it was a monopoly in the production of sugar and not in its sale or distribution among the several States. If a monopoly in interstate commerce followed a monopoly in production, it was but indirect and incidental and not within the prohibition of the anti- trust law. It was for the States to regulate production; the au- thority of Congress was limited to commerce among the States. "Doubtless," said the chief justice (p. 12), "the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bring- ing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it." Again, page 16: "Contracts, combinations, or conspiracies to control domestic enterprise in manufacture, agriculture, mining, production in all its forms, or to raise or lower prices or wages, might unquestionably tend to restrain external as well as domestic trade, but the restraint would be an indirect result, however inevitable and whatever its extent, and such result would not necessarily determine the object of the contract, combination, or conspiracy. "It was in the light of well-settled principles tliat the act of July 2, 1890, was framed. Congress did not attempt thereby to assert the power to deal with monopoly directly as such; or to limit and restrict the rights of corporations created by the States or the citizens of the States in the acquisition, control, or disposition of property; or to regulate or prescribe the price or prices at which such property or the products thereof shall be sold; or to make criminal the acts of persons in the acquisition and control of prop- erty which the States of their residence or creation sanctioned or permitted. Aside from the provisions applicable where Congress might exercise municipal power, what the law struck at was com- binations, contracts, and conspiracies to monopolize trade and commerce among the several States or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce 352 THE SHERMAN ANTI-TRUST ACT between the States or with foreign nations." Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., 160 Fed. R. 144; American banana Co. v. United Fruit Co., 160 Fed. R. 184. United States v. Trans-Missouri Freight Association (166 U. S. 290; Supreme Court, March 22, 1897; Opin., Peck- ham, J.) The contract or combination assailed in this case was an agree- ment among a large number of interstate railways, creating an association and providing a method of fixing rates and fares on competitive interstate freight traffic south and west of the Missouri River. The agreement expressly declared that the association was formed among other things, "for the purpose of mutual protection, by establishing and maintaining reasonable rates, etc." The questions vigorously discussed in the case were whether the anti-trust law applies to railroads, and whether it declares illegal all contracts in restraint, of trade, whether reasonable or unreasonable. The court held that the law does apply to railroads and that it prohibits all contracts in restraint of trade or commerce among the several States and with foreign nations, whether the restraint be reasonable or unreasonable. Four of the justices — White, Field, Gray and Shiras — dissented in an opinion delivered by Mr. Justice White, upon the ground that the restraint of trade condemned by the statute is an unreasonable restraint, such as was unlawful at common law. United States v. Joint Traffic Association (171 U. S. 505; Supreme Court, October 24, 1898; Opin., Peck- ham, J.) The Joint Traffic case grew out of an agreement, similar to that in the Trans-Missouri, creating an association to fix rates and fares on competitive interstate traffic east of Chicago. Nine trunk-line systems — the Baltimore and Ohio, the Chesapeake and Ohio, the Erie, the Grand Trunk, the Lackawanna, the Lehigh, the Pennsyl- vania, the Vanderbilt, and the Wabash — practically controlling the business of railroad transportation between Chicago and the Altantic seaboard, were covered by the arrangement. The agreement expressly declared that it was entered into only to establish and maintain "reasonable and just rates, fares, etc.," THE SHERMAN ANTI-TRUST ACT 353 and stated that the powers conferred upon the managers should be so construed and exercised as not to permit the violation of the Interstate Commerce Act or any other applicable law. In addition to the points discussed in the Trans-Missouri case, which counsel for the railroads attempted to reargue, it was insisted that the anti-trust law is unconstitutional. The court followed its decision in the Trans-Missouri case, holding that there was no substantial difference between the Trans-Missouri and the joint traffic agreements, and, upon the constitutional ques- tion, held that Congress has the power, in regulating interstate commerce carried on by railroad corporations, to say that no con- tract or combination shall be legal which restrains such trade or commerce by shutting out the operation of the general law of com- petition. In this case, as in the Trans-Missouri, the court considered it no defense that the rates established or to be established were reason- able. The fact that the creation of the association prevented any real competition between the railway systems involved was held to restrain the trade or commerce carried on by them. "The natural, direct, and immediate effect of competition," said the court (p. 577), "is, however, to lower rates, and to thereby increase the demand for commodities, the supplying of which in- creases commerce, and an agreement, whose first and direct effect is to prevent this play of competition, restrains instead of pro- moting trade and commerce." Hopkins t. United States (171 U. S. 578; Supreme Court, October 24, 1898; Opin., Peck- ham, J.) This was a bill in equity, filed by direction of the Attorney-General, against Hopkins and other members of the Kansas City Live Stock Exchange, to secure a dissolution of the exchange on the ground that its members were in a combination in restraint of commerce among the several States. It seems that this exchainge was an association of men doing business at the stock yards in Kansas City, part of these yards be- ing in Missouri and part in Kansas. The business of the members was to receive live stock shipped from other States, care for, and sell the same, and account to the owners for the proceeds after deducting charges and expenses. Under the rules members were prohibited from buying live stock from commission merchants in 354 THE SHERMAN ANTI-TRUST ACT Kansas City not members of the exchange. The rules also fixed a commission, prohibited the employment of agents to solicit con- signments except upon stipulated salary, and forbade the sending of prepaid telegrams or telephone messages with information as to the condition of the markets. The court held that the business conducted by the members of the exchange was not interstate, but local in character, and there- fore decided the case against the government. Page 588: "The sale or purchase of live stock as commission merchants at Kansas City is the business done, and its character is not altered because the larger proportion of the purchases and sales may be of live stock sent into the State from other States or from the Terri- tories. Where the stock came from or where it may ultimately go after a sale or purchase, procured through the services of one of the defendants at the Kansas City stock yards, is not the sub- stantial factor in the case. The character of the business of de- fendants must, in this case, bp determined by the facts occurring at that city. " If an owner of cattle in Nebraska accompanied them to Kansas City and there personally employed one of these defendants to sell the cattle at the stock yards for him on commission, could it be properly said that such defendant, in conducting the sale for his principal, was engaged in interstate commerce? Or that an agree- ment between himself and others not to render such services for less than a certain sum was a contract in restraint of interstate trade or commerce? We think not. On the contrary, we regard the service as collateral to such commerce and in the nature of a local aid or facility provided for the cattle owner toward the ac- complishment of his purpose to sell them, and an agreement among those who render the services relating to the terms upon which they will render them is not a contract in restraint of interstate trade or commerce." Page 590: "The selling of an article at its destination, which has been sent from another State, while it may be regarded as an interstate sale and one which the importer was entitled to make, yet the services of the individual employed at the place where the article is sold are not so connected with the subject sold as to make them a portion of interstate commerce, and a combination in regard to the amount to be charged for such service is not, therefore, a combination in restraint of that trade or commerce. Granting that the cattle them- THE SHERMAN ANTI-TRUST ACT 355 selves, because coming from another State, are articles of interstate commerce, yet it does not therefore follow that before their sale all persons performing services in any way connected with them are themselves engaged in that commerce, or that their agreements among each other relative to the compensation to be charged for their services are void as agreements made in restraint of interstate trade." Page 592: "The contract condemned by the statute is one whose direct and immediate effect is a restraint upon that kind of trade or commerce which is interstate. Charges for such facilities as we have already mentioned are not a restraint upon that trade, although the total cost of marketing a subject thereof may be thereby increased. Charges for facilities furnished have been held not a regulation of commerce, even when made for services rendered or as compensation for benefits conferred." Anderson v. United States (171 U. S. 604; Supreme Court, October 24, 1898; Opin., Peck- ham, J.) This case was somewhat similar to the Hopkins case, being a bill in equity filed by direction of the Attorney-General against the members of the Traders' Live Stock Exchange of Kansas City to compel its dissolution. The main difference between this ex- change and that involved in the Hopkins case was that while the members of the Traders' Exchange were purchasers of live stock on the market, the members of the Live Stock Exchange were only commission merchants who sold the live stock upon commission as a compensation for their services. The rules of the exchange relied upon by the government as restraining interstate commerce were those which forbade the rec- ognition of any yard trader unless he was a member of the ex- change, which required all the members of a partnership to be members of the exchange, which provided that no member of the exchange should employ any person to buy or sell cattle unless such person was a member of the exchange, and which prohibited the payment of any fee to any buyer or salesman for buying cattle from or selling cattle to such party. Without passing upon the question whether the members of this exchange were or were not engaged in interstate commerce, the court held that the rules objected to were of a character to enforce 358 THE SHERMAN ANTI-TRUST ACT the purpose and object of the exchange, and viewed in that light were reasonable and fair. They could affect interstate trade or commerce in but a remote way, and therefore could not be re- garded as in restraint of such trade or commerce. The court (p. 615) restated the rule that where the subject- matter of the agreement does not directly relate to and act upon and embrace interstate commerce, and where the undisputed facts clearly show that the purpose of the agreement was not to regulate, obstruct, or restrain that commerce, but that it was entered into with the object of properly and fairly regulating the transaction of the business in which the parties to the agreement were engaged, such agreement would be upheld as not within the statute. Addyston Pipe and Steel Company v. United States (175 U. S. 211; Supreme Court, December 4, 1899; Opin., Peck- ham, J.) This case grew out of a combination of six shops, located, one in Ohio, one in Kentucky, two in Tennessee, and two in Alabama, which were engaged in making cast-iron pipe for gas, water, and sewer purposes. These shops controlled the market in that com- modity in thirty-six States west of the Allegheny Mountains and south of Virginia. They entered into an agreement to control prices by suppressing competition among themselves. This was done by appointing a representative board of one from each shop, to which all inquiries for pipe were referred. The board fixed the price it thought the job would stand. The job was then sold over the table, the shop which bid the highest bonus for the benefit of the pool getting it. At the public letting, the shop that got the job bid the fixed price, and the other shops overbid in order to deceive the public. On behalf of the combination it was contended that the power of Congress, under the interstate commerce clause, does not extend to agreements among private corporations, but is limited to acts of interference by the States and by gwasi-public corporations, such as railroads. Private manufacturing corporations, it was insisted, fire not public agencies and cannot be compelled to keep their shops running or sell their goods to any person who applies. In the next place, it was urged that there was no restraint put upon interstate commerce, and that under the decision in the Knight case the creation of a monopoly in the manufacture of a commodity is not prohibited by the anti-trust law. THE SHERMAN ANTI-TRUST ACT 357 The Supreme Court held, however, that Coivgress may prohibit the performance of any agreement between individuals or corpora- tions where the natural and direct effect of it is to regulate or restrain interstate commerce. In other words, the anti-trust law applies to every agreement in restraint of interstate trade, whether made by corporations or individuals. In the next place the court held that any agreement or combina- tion which directly restrains not only the manufacture but the sale of a commodity among the several States comes within the anti- trust law. Commenting on the Knight case the court said (page 240) : "The case was decided upon the principle that a combination simply to control manufacture was not a violation of the act of Congress, because such a contract or combination did not directly control or affect interstate commerce, but that contracts for the sale and transportation to other States of specific articles were proper subjects for regulation because they did form part of such commerce." Loewe et al. v. Lawlor et al. (148 Fed. R. 924) 208 U. S. 274 (Decided February 2, 1908.) An action was brought in the Circuit Court for the District of Connecticut, under Sec. 7 of the Anti-trust Act of July 2, 1890 claiming threefold damages for injuries inflicted on plaintiffs by combination or conspiracy declared to be unlawful by the Act. The complaint alleged that defendants, the United Hatters of North America, collectively known as the American Federation of Labor, combined and conspired, by boycotts and otherwise, to restrain and obstruct the sale of complainant's fur hats among the several States, in violation of Sec. 1 of the Anti-Trust Act. "In our opinion, the combination described in the declaration is a combination in restraint of trade or commerce among the sev- eral States in the sense in which the words are used in the Act, and the action can be maintained accordingly." The judgments in the following eases were analyzed and held to be decisive of this case, viz.: United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Trafic Associa- tion, 171 U. S. 505; Northern Securities Company v. United States, 193 U. S. 197; Swift & Co. v. United States, 196 U. S. 395; Aikens V. Wisconsin, 195 U. S. 194; Mulcahy v. Queen, L. R. 3 H. L. 306; 358 THE SHERMAN ANTI-TRUST ACT Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Montague V. Lowry, 193 U: S. 38; United States v. Workingmen's Amalga- mated Council, 26 L. R. A. 158; 54 Fed. R. 994; 57 Fed. R. 85; Re Debs, 158 U. S. 564. The records of Congress show that several efforts were made to exempt by legislation, organizations of farmers and laborers from the operation of the Act, and all these efforts failed, so that the Act remained as we have it before us. The Act seems to include all combinations in restraint of com- merce, without reference to the character of the persons who en- tered into them. Ches. & Ohio Fuel Co. v. United States (115 Fed. R. 610; April 8, 1902.) A contract by which a corporation agrees to take the entire output of a number of independent concerns engaged in coal and coke business, intended for interstate shipment, to sell the same at a fixed price and to pay over the proceeds to such producers, said corporation binding itself not to sell the product of competing mines, and to retain for itself a compensation, was held by the court to be illegal and in restraint of interstate commerce and as tending to create a monopoly. Northern Securities Company v. United States (193 U. S. 197; March 14, 1904.) Stockholders of the Great Northern and the Northern Pacific Railway Companies, parallel and competing lines, organized the Northern Securities Company to hold the shares of the stock of the constituent companies, such stockholders in lieu of their stock in those companies to receive shares in the holding corporation. Suit was brought by the government to enjoin the consolidation under the provisions of the Anti-Trust Act of July 2, 1890. It was held that this consolidation destroyed competition be- tween the two companies, and that the arrangement was an illegal combination in restraint of trade, and the holding company was enjoined from voting the stock or from exercising any control over the railroad companies, and the railroads were enjoined from pay- ing any dividends to the Northern Securities Company on accovnt of any etock which it holds in either of the aforesaid railroads. THE SHERMAN ANTI-TRUST ACT 359 The following propositions are deducible from the opinion of the court in this case: Although the Anti-Trust Act has no reference to the mere manu- facture or production of articles or commodities within the limits of the several States, it embraces and declares to be illegal every contract, combination or conspiracy in whatever form, of whatever nature, and whoever may be parties to it, which directly or neces- sarily operates in restraint of trade or commerce among the several States or with foreign nations. The Act is not limited to restraints of interstate and international trade or commerce that are unreasonable in their nature, but enl- braces all direct restraints, reasonable or unreasonable, imposed by any combination, conspiracy or monopoly upon such trade or com- merce. Railroad carriers engaged in interstate or international trade or commerce are embraced by the Act. Combinations, even among private manufacturers or dealers, whereby interstate or international commerce is restrained, are equally embraced by the Act. Congress has the power to establish rules by which interstate and international commerce shall be governed, and by the Anti-Trust Act has prescribed the rule of free competition among those en- gaged in such commerce. Every combination or conspiracy which would extinguish com- petition between otherwise competing railroads, engaged in inter- state trade or commerce, and which would in that way restrain such trade or commerce, is made illegal by the Act. The natural effect of competition is to increase commerce, and an agreement whose direct effect is to prevent this play of com- petition, restrains instead of promotes trade and commerce. To vitiate a combination, such as the act of Congress condemns, it need not be shown that such combination, in fact, results, or will result, in a total suppression of trade or in a complete monopoly, but it is only essential to show that by its necessary operation it tends to restrain interstate or international trade or commerce, or tends to create a monopoly in such trade or commerce, and to deprive the public of the advantages that flow from free com- petition. The constitutional guarantee of liberty of contract does not prevent Congress from prescribing the rule of free competition for those engaged in interstate and international commerce. Uiider its power to regulate commerce among the several States 360 THE SHERMAN ANTI-TRUST ACT and with foreign nations, Congress had authority to enact the stat- ute in question. Congress may protect the freedom of interstate commerce by any means that are appropriate and that are lawful and not prohibited by the Constitution. If in the judgment of Congress the public convenience or the general welfare will be best subserved when the natural laws of competition are left undisturbed by those engaged in interstate commerce, that must be, for all, the end of the matter, if this is to remain a government of laws, and not of men. When Congress declared contracts, combinations and conspiracies in restraint of trade or commerce to be illegal, it did nothing more than apply to interstate commerce a rule that had been long applied by the several States when dealing with combinations that were in restraint of their domestic commerce. Subject to such restrictions as are imposed by the Constitution upon the exercise of all power, the power of Congress over interstate and international commerce is as full and complete as is the power of any State over its domestic commerce. No State can by merely creating a corporation, or in any other mode, project its authority into other States, so as to prevent Con- gress from exerting the power it possesses under the Constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce; nor can any State give a corporation created under its laws authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land. While every instrumentality of domestic commerce is subject to state control, every instrumentality of interstate commerce may be reached and controlled by national authority, so far as to compel it to respect the rules for such commerce lawfully established by Congress. Swift and Company v. United States (196 U. S. 375; January 30, 1905.) Bill charges a combination, conspiracy and monopoly among defendants in buying live stock and selling fresh meat at the stock yards in Chicago, Omaha and other cities, and prays that defend- THE SHERMAN ANTI-TRUST ACT 361 ants be restrained from making and performing contracts and com- binations in restraint of trade, the purpose or effect of which is to require their agents to refrain from bidding against each other in the purchase of Uve stock, or collusively and by agreement to re- frain from bidding against each other at the sales of hve stock, or fixing uniform prices, or by curtaihng the quantity of meats shipped, or in respect to rules of credit to dealers, etc. The injunction was ordered. Upon appeal the case was heard on demurrer to the bill, and the injunction sustained, and it was held that, although the combination alleged embraces restraint and monopoly of trade within a single State, its effect upon commerce among the States is not accidental, secondary, remote or merely probable, and the case is not like U. S. v. E. C. Knight, 156 U. S. 1, where the subject- matter of the combination was manufacture, and the direct object monopoly of manufacture within a State. Here the subject-matter is sales, and the very point of the combination is to restrain and monopolize commerce among the States in respect of such sales. In Hopkins v. U. S., 171 U. S. 578, the point decided was that the local business of commission merchants was not commerce among the States. In Anderson v. U. S., 171 U. S. 604, the defendants were buyers and sellers at the stock yards, but their agreement was merely not to employ brokers or to recognize yard traders who were not members of their association, and this combination did not regulate commerce among the States. Taking up the case at bar, commerce among the States is not a technical, legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yard, and when this is a typical, constant recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such com- merce. What we say is true at least of such a purchase by residents in another State from that of the seller and of the cattle. See Nor- folk & Western Ry. v. Sims, 191 U. S. 441. The sales of stock within the statute are those made at the stock- yards of live stock sent from other States, or bought at those yards for transport to another State. CHAPTER XXIII BUREAU OF CORPORATIONS An Act to Establish the Department of Commerce and Labor Approved February 14, 1903 Sec. 6. That there shall be in the Department of Commerce and Labor a bureau to be called the Bureau of Corporations, and a Com- missioner of Corporations who shall be the head of said bureau, to be appointed by the President, who shall receive a salary of five thou- sand dollars per annum. There shall also be in said bureau a deputy commissioner who shall receive a salary of three thousand five hun- dred dollars per annum, and who shall in the absence of the Com- missioner act as, and perform the duties of, the Commissioner of Corporations, and who shall also perform such other duties as may be assigned to him by the Secretary of Commerce and Labor or by the said Commissioner. There shall also be in the said bureau a chief clerk and such special agents, clerks, and other employees as may be authorized by law. The said Commissioner shall have power and authority to make, under the direction and control of the Secretary of Commerce and Labor, diligent investigation into the organization, conduct, and management of the business of any corporation, joint stock company or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers sub-, ject to "An Act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require; and the information so obtained or as much thereof as the President may direct shall be made public. In order to accomplish the purposes declared in the foregoing part of this section, the said Commissioner shall have and exercise the same power and authority in respect to corporations, joint stock companies and combinations subject to the provisions hereof, as is conferred on the Interstate Commerce Commission in said "Act to regulate commerce" and the amendments thereto in respect to common carriers so far as the same may be applicable, including the right to subpoena and compel the attendance and testimony of witnesses and the production of documentary evidence and to ad- minister oaths. All the requirements, obligations, liabilities, and 362 BUREAU OF CORPORATIONS 363 immunities imposed or conferred by said "Act to regu.ate commerce" and by "An Act in relation to testimony before the Interstate Com- merce Commission," and so forth, approved February eleventh, eighteen hundred and ninety-three, supplemental to said "Act to regulate commerce," shall also apply to all persons who may be sub- pcEuaed to testify as witnesses or to produce documentary evidence in pursuance of the authority conferred by this section. It shall be the province and duty of said bureau, under the direc- tion of the Secretary of Commerce and Labor, to gather, compile, publish, and supply useful information concerning corporations doing business within the limits of the United States as shall en- gage in interstate commerce or in commerce between the United States and any foreign country, including corporations engaged in insurance, and to attend to such other duties as may be hereafter provided by law. The law creating the Bvireau of Corporations is an exercise by Con- gress of the authority conferred upon it by the commerce clause of the Constitution, and is a part of the general authority for the regu- lation of commerce. The Act expressly authorizes the gathering of such information and data as will enable the President to make recommendations to Congress for legislation for the regulation of commerce. The power vested in Congress to regulate commerce has been held to include the power to prescribe rules for carrying on commercial intercourse. Gibbons v. Ogden, 9 Wheat. 1 ; to establish the rule of free competition among those who engage in it. Northern Securi- ties Co. V. U. S., 193 U. S. 197. To prohibit unjust charges, discrim- inations or preferences by carriers engaged in interstate commerce, I. C. C. V. Brimson, 154 U. S. 447, and to create officials and to authorize them to investigate the whole subject. I. C. C. v. Brimson, 154 U. S. 447; Union Bridge Co. v. U. S., 204 U. S. 364. The Constitution expressly confers upon Congress authority to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the government of the United States, or in any department or officer thereof. The Act creating the Bureau of Corporations and vesting it with its powers has its prototype, in many respects, in the Interstate Com- merce Act. Many decisions of the Supreme Court affecting said last- mentioned act are, therefore, of direct application here. The Com- mission has authority to inquire into the management of the business of interstate carriers, and to investigate the whole subject of inter- state commerce conducted by such carriers, and to obtain full and accurate information of all matters involved in the enforcement of the Act. I. C. C. V. Brimson, 154 U. S. 447. 364 BUREAU OF CORPORATIONS The functions of the Commission and the Bureau of Corporations are different, but the object of Congress in each case is the regulation of commerce, and the Brimson case expressly confirms the power of Congress to authorize the exercise of such functions. "An adjudication that Congress could not establish an adminis- trative body with authority to investigate the subject of interstate commerce and with power to call witnesses before it, and to require the production of books, documents, and papers relating to that subject, would go far toward defeating the object for which the people of the United States placed commerce among the States under national control. All must recognize the fact that the full information neces- sary as a basis of intelligent legislation by Congress from time to time upon the subject of interstate commerce cannot be obtained, nor can the rules established for the regulation of such commerce be effectually enforced -otherwise than through the instrumentality of an administrative body representing the whole country, always watchful of the general interests, and charged with the duty not only of obtaining the required information, but of compelling by all lawful methods obedience to such rules." The several powers expressly delegated to the Bureau of Corpo- rations and to the Commissioner of Corporations, who shall be the head of said bureau, may be enumerated as follows: (1) To make diligent investigation into the organization, conduct and management of the business of any corporation, joint stock company, or corporate combination engaged in com- merce among the several States and with foreign nations, excepting common carriers, etc., and to gather such informa- tion and data as will enable the President to make recom- mendations to Congress for legislation for the r^ulation of such commerce. (2) To report such data to the President from time to time as he shall require. (3) To have and exercise the same power and authority in respect to corporations, joint stock companies and combinations subject to the provisions hereof, as is conferred on the In- terstate Commerce Commission in the act to regulate com- merce and the amendments thereto in respect to common carriers, so far as the same may be applicable. (4) To subpoena and compel the attendance and testimony of witnesses and the production of documentary evidence. (5) To administer oaths. (6) To gather, compile, publish, and supply useful information BUREAU OF CORPORATIONS 365 concerning corporations doing business within the limits of the United States as shall engage in interstate commerce, or in commerce between the United States and any foreign country, including corporations engaged in insurance. (7) To attend to such other duties as may be hereafter provided by law. Congress may authorize a commission to obtain information upon any subject which in its judgment it may be important to possess, but the delegation of such power does not make such commission a judicial body, though the exercise of the power conferred may be judicial in its nature. The judicial power of the United States is vested in the Supreme Court and such inferior courts as the Congress may from time to time ordain and establish, and therefore it cannot be vested in a Commission or a Commissioner who is not a court in a constitutional sense. Chin Bak Kau, 186 U. S. 193. The Com- missioner of Corporations having been vested with powers of inves- tigation only, his functions are not those of a court, though they are gttast-judicial in the matter of administering oaths and issuing sub- poenas for witnesses and requiring the production of documentary evidence; but the object and purpose of the exercise of this power having been declared, viz., to gather such information and data as will enable the President to make recommendations to Congress for legislation for the regulation of commerce, it was clearly the intent of Congress to provide means of procuring information as a basis for legislation, by an inquisitorial officer fully equipped with the machin- ery essential to the performance of the imperative duties imposed upon him. His duties are, in some respects, similar to those per- formed by a referee, examiner, or special commissioner under the order of a court of equity. Inasmuch as the courts have decided time and again that insurance is not interstate commerce, Paul v. Virginia, 8 Wall. 168; Liverpool Ins. Co. V. Mass., 10 Wall. 567; Hutting v. Mass., 183 U. S. 553, the purpose of this clause of the enactment is not clear, it having no vitality or force, and the bureau will, most likely, not undertake to exercise any power in this respect, in the present state of the law. The Sherman Anti-Trust Act is a regulation of commerce and pre- scribes the rule of free competition among those who engage in it. Northern Securities v. U. S., 193 U. S. 197; U. S. v. Addyston Pipe Co., 175 U. S. 211. Therefore the Commissioner has the right to exercise the inquisitorial powers conferred upon him for the purpose of securing information and data as to the operation of this law. After the Commissioner has reported the information and data 366 BUREAU OF CORPORATIONS collected, his functions are at an end, and he has no authority to institute or conduct legal proceedings on account of any violations of the law his inquisitions may have discovered, but the information and data obtained may be used, in proper cases, for the prosecution of offenders. U. S. v. Armour & Co., 142 Fed. R. 808. The data and information obtained by the Commissioner is private until it, or so much thereof as the President may direct, be made public. It is in the discretion of the President to give information to the public, i. e., for the use or enjoyment of the community and the public at large. As to the discretionary power of the President, see Marbury v. Madison, 1 Cranch, 137. In collecting the informa- tion and data, much that is of a private nature, and of no advantage whatever to the public, is unavoidably obtained, and mainly for the purpose of protecting the private affairs of individuals where pub- licity might be harmful. Congress has intrusted the disposition of the data to the discretion of the President by the express terms of the Act. The information and data so obtained by the Commissioner, being of a private and confidential nature, until made public by the President, the hearings before the Commissioner are necessarily private and could not be made pubUc upon the request of either party, as is the case in proceedings before the Interstate Commerce Commission. There are no rules or methods indicated in the act by which the Commissioner shall be guided or to which he is required to conform in his investigations, and he has, therefore, great latitude in this respect, but not to the extent of an invasion of the constitutional rights of the citizen. Kilbourn v. Thompson, 103 U. S. 168; Boyd v. U. S., 116 U. S. 616. He should avoid the purely private affairs of an individual unless it affirmatively appears that such investiga- tion has in view the accomplishment of some lawful purpose. The subject-matter of the investigation should be one over which Con- gress has jurisdiction and with reference to which it may take lawful action, and one which the law authorizes the Commissioner to inves- tigate. The evidence sought should be material and relevant to the subject-matter under investigation, but the Commissioner cannot be hampered by those narrow rules which prevail in trials at common law. I. C. C. V. Baird, 194 U. S. 25; I. C. C. v. Brimson, 154 U. S. 447. In this connection it should be noted that the Commissioner is authorized to investigate the business of any corporation, joint stock company or corporate combination, and not that of private individ- uals or partnerships. BUREAU OF CORPORATIONS 367 It must also appear that the concern investigated is engaged in commerce among the several States and with foreign nations. It was probably the intent of Congress to give the Commissioner authority to investigate any corporation, joint stock company or corporate combination engaged in interstate or foreign commerce, but a literal reading of the statute conveys the impression that the concern in- vestigated must be engaged in both interstate and foreign commerce as a jurisdictional test of the Commissioner's authority. There is no authority under this law to investgate the business of a common carrier subject to the Interstate Commerce Act. The power given to Congress to regulate interstate commerce does not carry with it any power to destroy or impair the guarantees of the Constitution, which provide that "the right of the people to be secure in their persons, houses, papers, and effects against unreason- able searches and seizures, shall not be violated," and "no person shall be compelled in any criminal case to be a witness against him- self." Kilbourn v. Thompson, 103 U. S. 168; Boyd v. U. S., 116 U. S. 616; I. C. C. V. Brimson, 154 U. S. 447; see "Immunity of Witnesses," infra. United States v. Armour & Co. (142 Fed. R. 808.) The primary purpose of the Act was to enable Congress, by infor- mation secured through the work of officers charged with the exe- cution of that law, to pass such remedial legislation as might be found necessary for the control of corporations. The secondary purpose of the Act might have been the punishment of offenders. The Act surrounds the Commissioner with no forms, puts no legislative limits upon his methods, and it does not require public hearings. The Act contemplates that hearings should be private. The Commissioner of Corporations has the same powers with re- spect to other interstate corporations as the Act to regulate commerce and its amendments give to the Interstate. Commerce Commission over common carriers so far as the same shall be applicable. The immunity acts and each of them is a substitute for the privi- lege contained in the Fifth Amendment to the Constitution. Con- gress, in furnishing a substitute for this great right of the citizen, must give something as broad as the privilege taken away. The privilege must be claimed by the witness at the time. The immunity flows to the witness by action of law and without any claim on his part. 368 BUREAU OF CORPORATIONS The Commissioner of Corporations has power to compel, and when he makes his demand it is the duty of the witness to obey, and he may be punished for his refusal to answer his lawful requirement. The witness, in order to get immunity, does not have to wait until the compulsion becomes irresistible. The law puts no premium on contumacy. If defendant volunteers nothing, but gives only what is demanded by an officer who had the legal right to make the demand in good faith under a sense of legal compulsion, having no legal right to refuse, under such circumstances he answers under compulsion of the law and is entitled to immunity under the Act. The subpcena is not necessary where the person is present in court or within the verge of the court. Legal compulsion does not depend upon subpoena or oath. Immunity in such cases does not extend to corporations, but pro- tects individuals, the officers of corporations. Note. — Following this decision, Congress enacted that "immu- nity shall extend only to a natural person who, in obedience to a subpcena, gives testimony under oath or produces evidence, docu- mentary or otherwise, under oath." Approved June 30, 1906. INDEX INDEX References are to pages. ABET OR AID— carrier to discrimmate, 17, 73. ABSORPTION OF CARRIERS— by another carrier, 196. ACCESS TO RECORDS OF CARRIERS, 6, 103. ACCIDENTS— charges accruing on account of, 259. ACCIDENT REPORTS— carriers must make, 136. failure to make, penalties, 1^. not used in evidence, 136. ACCOUNTS— must be uniform, 6, 102. may be examined by special agents, 6, 103. other than those prescribed by Commission, 13, 103. Commission may prescribe form of, 103. ACCRUED CLAIMS— limitation on, 24, 87, 97. ACT— when effective, 99, 115. ACT TO REGULATE COMMERCE, 26. ACTIONS— jurisdiction of, 70. ADJACENT FOREIGN COUNTRY, 26. definition of, 31. ADJOURNMENTS— under rules of practice, 323. ADMINISTRATIVE RULINGS AND OPINIONS, 211. round-trip excursion fares, 211. limited to a designated period, 211. roimd-trip tickets, 212. change in rates, 213. joint fare greater or less thsa s»Q} 9I iocalc, Si#. reduction to equal, 214. 371 372 INDEX References are to pages. ADMINISTRATIVE RULINGS AND OPINIONS— continued, through rate or fare higher than sum of locals, 215. new roads, 215. amend tariffs on less than statutory notice, 214. change to meet competition, 216. - amendment of tariff on less than thirty days' notice, 216. division of joint rates, 217. diverting traffic, 217. blockades, 217. equalizing rules, 218. free transportation, 218, 219, 220, 221. party fare tickets, 222. circus outfits, ruling on, 222. routing freight, 222. overcharges, 223. maximum rates not specific, 225. combinations of rates, 225. combination of joint rate and local rate, 226. how to "meet the rate," 226. reconsignments, 227. carrier cannot be given preferential rates, 227. astray shipments, 227. federal troops, 228. explosives, 228. minimum carloads, 228. shipments refused by consignee or damaged in transit, 229. correspondence, 231. distribution of official circulars, 231. mailing list, 231. special reparation on informal complaints, 231. demurrage charges, 232. reparation only on basis of published rate, 233. limitations, 233. refunds and commissions, 235. responsibilities under tariff, 234. unlawful incorporation of carrier in tariff, 236. extensions of time, 236. stop-over privileges, 236. withdrawal of tariff, 236. ocean carriers, 237. export and import tariffs, 237. maxima rules, 238. special circular No. 6, 238. Express Tariff Circular No. 16-A, 272. as to express companies generally, 296. ADVANCE IN RATES— carrier must justify, 38. because business of shipper is prosperous, 38. concerted, 84. INDEX 373 References are to pages. ADVANCE IN RATES—continued. re investigation, 315. AGENT— to file tariff, 174. authority and concurrence in passenger fare schedules, 198. appointment of, imder passenger schedule, 201. AGREEMENT— to own and operate a railroad, 27. must be filed, 65. to prevent continuous carriage, 69. AID OR ABET— in violation of Act, 73. ALLOWANCES TO SHIPPERS, 6. for service rendered or instrumentality furnished, 84, 86. ALLOWANCES TO ELEVATORS BY U.P. RY.— re investigation, 316. ALLOWANCES TO TERMINAL RAILROADS— re investigation, 316. ALTERATION OF RECORDS, 13, 104. AMENDMENT OF TARIFF— on less than thirty days' notice, 167, 215, 216. AMENDMENTS— do not affect pending causes, 114. to passenger fare schedules, 195 to rule 7, Circular 15-A, 242. to rule 8, Circular 15-A, 243. to rules 9 and 38, Circular 15-A, 243. to rule 11, Circular 15-A, 244. to rule 37, Circular 15-A, 244. to rule 38, Circular 15-A, 244. to rule 39, Circular 15-A, 244. to rule 82, Circular 15-A, 245. to express tariff, 279. to Anti-Trust Act, 347, 349. under rules of practice, 323. ANACOSTIA AND POTOMAC RIVER RY. CO.— Street Railway Acts, 151. ANALYSIS OF ACT, 1. structure and organization, 3. powers delegated to Commission, 5. duties of common carrier, 7. limitations upon common carrier, 10. procedure before Commission, 14. procedure in the courts, 17. procedme in the courts, Elkins Act, 22. miscellaneous provisions, 23. 374 INDEX References are to paces. ANNUAL REPORTS (see Repoets)— as evidence, 90. Commission may require from carriers, 102. of Commission to Congress, 110. ANSWER— carrier must within specified time, 14, 2S. depositions taken after, 77. wiien carrier fails to file, 81. under rules of practice, 322. ANTI-TRUST ACT— general provisions, 346. APPEAL— suits to enforce order for payment of money, 20, 89. under Expediting Act, 20, 123. orders other than to pay money, 21, 89i on injunctions, 21, 89. in suits for departure from published ra>tes, 21, 119. under Elkins Act, 23, 119. conditions of, 44. excessive penalties, 44. who to pay costs, 87. from interlocutory order, SO; shall have precedence, 90. to Supreme Court from final decree of CSrciat Gblirt, 123. imder Arbitration Act, 143. APPLICATION— for rehearing, 16, 99. ARBITRATION ACT— general statutes, 140. tenth section declared unconstitutional, 147. ARRANGEMENTS— relating to traffic, filed, 7, 65. copies must be filed, 65. ARTIFICIAL GAS, EXCEPTED, 26. ASH PAN ACT, 130— when effective, 130. locomotives must have, 130. penalties, 130. Commission to enforce, 130. ASSIGNMENT OF CLAIMS, 70. ASTRAY SHIPMENTS— ruling on return of, 227. demurrage charge, 252. as to express companies, 303. INBEX 375 References are (d psgm: ASSISTANT TO THE ATTORNEY-GENERAL— under Sherman Anti-Trust Act, 360. ATTORNEYS— may have pass, 27. local not entitled to free pass, 32, 269. no exchange of passes, 33. ATTORNEY'S FEE— carrier liable for, 17, 70, 87. under Sherman Anti-Trust Act, 347. ATTORNEY-GENERAL— to direct proceedings, 6, 119. consent to employment of special counsel, 16, 88. to prosecute all suits for the enforcement of the Act, 17, 76. suits to recover forfeitures in case of rebates, 20, 88, 117. direct proceedings, 77. to proceed to collect for forfeitures under Elkins Aet, llS. to file certificate under Expediting Act, 123. to expend appropriation, 349. AUTOMATIC COUPLERS— Safety Appliance Acts, 125. AUTOMATIC SIGNALS— imder Safety Appliance Acts, 129. AWARD— imder Arbitration Act, 142. AWARD OF DAMAGES— on report of Commission, 82. after hearing on a complaint, 87. BAGGAGE— free with mileage tickets. 111. BAGGAGE AGENTS— may have free pass, 27. BAGGAGE COMPANIES— as to free pass for, 269. re investigation, 316. BASING POINTS, 56. BASING RATES— must be specific, 165. BASING TARIFFS— express companies, 276. BELT RAILROADS— subject to Act, when, 135, 267. 376 INDEX References ate to pagei. BILL OF LADING— carrier must issue, 9, 24, 105. liable for loss or damage, 9, 106. not vitiated by Act, 50. rate in, lower than the published, 74. re investigation, 316. BILLING BOOK— for fast freight lines, 178. BLOCKADES— diversion of traffic, 217. by flood, ruling, 265. as to express companies, 300. BOATS— whether carriers, 260. BOOKS AND PAPERS— may compel production, 72, 76. BREAK OF BULK— section 7, statute, 69. BRIDGES AND FERRIES— included in "Railroad," 23, 26. in Hours of Service Act, 137. BRIEFS— printing, 254. under rules of practice, 326. BULK— break of, statute, 69. BULLETIN NO. 1— conference rulings, 247. BULLETIN NO. 2— conference rulings, 260. BURDEN OF PROOF— upon complainant, 81. upon carrier, 81. BUREAU OF CORPORATIONS— general provisions, 302. BUREAU OF INSULAR AFFAIRS— when employees entitled to free pass, 35. CANADIAN RATES— ruling on, 251. CANCELLATIONS— must be specified, 166, 194. INDEX 377 Keferences are to pages. CANCELLATIONS— continued, must be by agent, 166. old rate must be cancelled, 256, 261. CAPITAL TRACTION COMPANY— Street Railroad Act, 151. CARETAKERS— live stock, 27. poultry, 27. fruit, 27. may have free pass, 34. when entitled to pass, 35. free pass ruling, 218, 247. includes vegetables, 218. of milk, ruling, 250. trip passes, 254. CARLOAD AND LESS THAN CARLOAD RATES— assembling packages, 49. CARLOADS, MINIMUM— ruling on, 228. CARLOAD SHIPMENTS— by express companies, 298. CARRIER— to whom the Act applies, 4, 26. specific enumeration of, 4, 26, 29. field of operation, 4. cannot transport certain commodities, 10, 28, 42. liable for costs, damages and attorney fees, 17, 70. liability of, for property received for transportation, 24, 105. may recover from other carriers, 24, 105. cannot refuse transportation, 41. must provide facilities for, 7, 41. means "common carrier," 24, 66. cannot transport unless schedules filed, 66. shall issue receipt or bill of lading, 105. must settle claims promptly, 109. participating in Interstate Commerce, 132. liability imder Arbitration Act, 140. cannot be given preferential rates, 227. damaged or destroyed, 240. repairs by shipper, 250. CARS, PRIVATE— defined, 242. CAR SHORTAGE— carrier must pro rata supply on hand, 65. re investigation, 316. 378 INDEX Keferenees are to pages. CARTAGE— in connection with business of carrier, 54. included in schedules, 66. CASES NOT SUSTAINED BY THE COURTS— list of, 318. CASES SUSTAINED BY COURT&- list of, 317. CEASE AND DESIST— Commission may order carriers to, 15, 83. CHAINS— use of, unlawful, 133. CHANGES— in rates, 213. exceptions allowed, 213.. on short notice, 217. CHANGES IN SCHEDULES, 5, 65, 66, 213, 217. CHARITABLE SOCIETIES— free carriage for, 27, 110. CHARTERING TRAINS— ruling on, 265. CIRCUIT COURT— petition for enforcement of order to pay mdney, 16, 87. costs, 16, 87. petition for enforcement of orders other than to pay money, 16, 89. petition to enforce order of Commission, 87. CIRCULARS— tariff No. 15-A, 159. special, 159. announcing compliance with order of court, 176, 200. distribution of, 231. special No. 6, 238. provisions of, 238. express tariff No. 16-A, 272. CIRCUS AGENTS— not entitled to free pass, 34. CIRCUS OUTFITS— ruling on, 222. CITY AND SUBURBAN RAILWAY OF WASHINGTON— Street Railway Acts, 151. CIVIL PROCEDURE IN THE COURTS IN AID OF THE ORDERS OF THE I. C. C. commencement of proceedings, 17, 72, 76, 87, 89, 119. INDEX 379 References are to pages; CIVIL PROCEDURE IN THE COURTS IN AID OF THE ORDERS CMF THE I. C. C— continued, mandamus, 20, 89, 105, 113. venue of suits, 17, 88, 89, 119. forfeitures, 20, 88, 118. service of process, 18, 87, 89, 118. appeal, 20, 89, 123. enforcement of order, 18, 19, 87, 89. precedence of cases, 21, 89, 123. compulsory process, 19, 23, 72, 76, 121. CLAIMS— limitation of, 87. for reparation, must be filed with CommissioH, 98. prompt settlement required, 109. delivering carrier must investigate before pa^g, 349'. adjustment of, 261. CLASSIFICATION— must be based upon a real distinction, 38. generally, 56. schedules must show, 64. regulations governing, 159, 160. filing of, 174. mmibers of, 177. may be issued by joint agent, 178. CLASS RATES— must carry notation, etc., 175. CLASS AND COMMODITY RATES TO TEXAS-- re investigation, 316. CLEANING IN TRANSIT— ruling, 242. COAL— for steam purposes, ruling, 253. transportation of, north of Ohio and east of Mississippi, re investigation, 315. COAL AND MINE SUPPLIES— re investigation, 316. COLORED PERSONS— separate cars for, 50. COMBINATIONS— for pooling freights, 11, 63. to prevent continuous carriage, 69. COMBINATION OF JOINT RATE— to common points and local rate beyond, 226. COMBINATION RATES, 164, 165, 175. 380 INDEX Beferences are to pages. COMMISSION (see Intehstatb Commeecb Comuisbion) — consists of seven members; four quorum, 4. cannot establish general rate schedules, 37. COMMISSIONS— on imports, ruling, 248. COMMISSIONS AND REFUNDS— ruling on, 234. COMMISSIONS ON TICKETS— re investigation, 315. COMMISSIONERS (see Interstate Commerce Commission) — may administer oaths, 4, 100. may sign subpoenas, 4, 100. vacancies, 4, 76, 100. may prosecute inquiry, 4, 101. qualifications of, 4, 76, 100. how appointed, 4, 76, 100. term of office, 4, 76, 100. salary of, 4, 76, 100. removal of, 4, 76, 100. COMMODITY CLAUSE— railroads prohibited from transporting, 28, 42. COMMODITY RATES— index to, 162. must be specific, 166. only lawful rate, 166. take precedence over class rates, 175. take it out of classification, 265. express companies, 277. COMMON CARRIER (see Carriers)- what term includes, 23. meaning under Ash Pan Act, 130. defined under Employers' Liability Act, 345. COMMON CONTROL, ETC., 26. through routing, test of, 30. construction of, 31. test of jurisdiction, 32. COMMON LAW— statutes changing, 131. COMMON POINTS— term cannot be used> 165. COMMUNITY OF INTERESTS— re investigation, 315. COMMUTATION TICKETS— at reduced rates, 110. use of in interstate journey, 251. INDEX 381 Beferenoes are to pages. COMPETITION— in determining rates, 52. creates dissimilar conditions 52, 61. COMPLAINTS OF PERSONS DAMAGED, 6, 17, 72, 80. forward same to carriers, 6, 24, 80. to investigate same, 6, 76, 80. limitation on, 24, 87. to the Commission, 72. or bring suit, 72. what it should state, 78, 80, 92. who may file, 80. of unjust rate, 83. as to allowances, 84. rules of practice, 322. COMPLIANCE WITH ORDERS— carrier must, while in effect, 88. failure to, under sec. 15, 88. under rules of practice, 327. COMPULSORY ATTENDANCE— of witnesses, 121. immunity of, 121. COMPULSORY PROCESS— disobedience to subpoena, 19, 77. under Elkins Act, 23, 118. may compel directors, etc., to attend and testify, 72. produce books and papers, 72, 76. CONCESSIONS— giving or receiving prohibited, 13, 116. under Elkins Act, 116. CONCLUSIONS OF THE COMMISSION— report must state, 82. CONCURRENCE— in joint tariffs, 5, 65, 67. evidence of must be filed, 7, 65, 174, 179. in joint rates, 67. forms of, 181, 182, 183, 184, 186, 204, 206, 207. filing, 185, 186, 206, 207. numbers of, 187, 209. revocation of, 187, 209. consolidated, regulations governing, 198 under passenger tariff, 202. of express companies, 286. CONFERENCE RULINGS, 32. free pass, 32. Bulletin No. 1, 247. Bulletin No. 2, 260. 882 INDEX Beferenoes are to pagea. CONFISCATORY RATES, 339. courts have power to investigate, 341. CONFLICTING AUTHORITY— must be avoided, 168. CONFLICTING LAWS— repealed, 114. in Elkins Act, repealed, 120. CONNIVANCE OF CARRIER, 74. CONSOLIDATION OF CARRIERS— re investigation, 315, 316. CONSPIRACY AGAINST UNITED STATES— indictment for, 75. CONSTITUTIONAL PROVISIONS— as to power of Congress over commerce, 332. CONSTRUCTION OF ACT TO PROMOTE COMMERCE, 29. must adopt English Railway Acts, 29. not to abridge common law rights of carriers, 29. CONSTRUCTION OF STATUTES, 131. CONTEMPT— failure to obey order, 19, 77. before the Commission, 79. CONTINUING VIOLATIONS— separate offense, 88, CONTINUOUS CARRIAGE, 26, 69— to combine to prevent, 11, 69. CONTRACTS— in relation to traffic, must be filed, 7, 65. for pooling, prohibited, 11, 63. prima facie evidence, 14, 90. to own and operate a railroad, 27. for rates, weight as to reasonableness, 38. in marine insiu'ance, 42. for transportation, validity of, 48. for less than regular rates, 66. as evidence, 68. to prevent continuous carriage, 69. copies of evidence, 90. statutory law forms part of, 120. to maintain established rates, illegal, 120. for division of joint rates, must be filed, 217. with telegraph or telephone companies must be filed, 221. for division of joint rates by express companies, 300. JNPEX 383 S^^gfeaoes #re ito PAge«. CONTRACTORS— may have free pass; 219. CONTRIBUTORY NEGLIGENCE^- under Employers' Liability Act, 342, 345. COPIES OF PAPERS— under rules of practice, 327. COPIES OF, FOR EVIDENCE^ schedules, 14, 90. tariffs, 14, 90. SOjatracts, 14, 50. reports, 14, 90. CORN AND CORN KIODUCTS— re investigation, 316. CORPORATIONS— bureau of, 362. CORRESPONDENCE— carriers should designate ofiScigJ^ 231. quotations from, 252. CORRESPONDENCE SCHOOLS— representatives cannot have pass, 33. agents cannot have pass, 219. COSTS— petitioner not liable for unless upon his appeal, 16, 87. of suits, how paid, 17, 77. when carrier liable for, 17, 70. on petition to Circuit Court to enforce ojxter^ i87. for prosecuting forfeitures, 89. COUNSEL, SPECIAL— Commission may employ, 16, 88. COUPLER— each must be operative, 133. carriers responsible for defective, 134. CRIMINAL ACT— party must know in advance whether it is criminal or voi,, 338. CRIMINAL ACTIONS— proceedings to recover -statutory penalties, 134. CRIMINAL PROVISIONS— free pass, 27, 36. rebates, special fates and drawfeadw, HO, I3j 4S, Jil5, Jig, 1?0. false entries, 13, 104. unjust and unreasonable charges, 10, 12, 25^ 48^ 73, transporting commodities in vhich interested, .28, 42. 384 INDEX References are to pages, CRIMINAL PROVISIONS— continued, switch connections, 5, 7, 28, 29, 41. undue preference or advantage, 10, 54, 55. facilities for interchange of traffic, 54, 58. long and short haul, 5, 60. pooling of freights, 11, 63, 75. file schedules, 5, 7, 11, 66, 68. change in rates, 5, 213, 249. to prevent continuous carriage, 11, 26, 69. for any violation of Act (sec. 10). unjust discriminations, 12, 25, 48, 49, 73, 74. false billing, classification, weighing, report of weight, contents of package, 12, 73, 74. transportation at less than regular rates, 68, 74, 117, 213. solicitation to discriminate, 13, 17, 74. contempt, 19, 79. failure to obey order of Commission, 16, 88, 91. failure to file reports, 6, 8, 10, 105, 110. failure to keep accounts, 6, 13, 102. failure to submit accounts to inspection, 6, 13, 102. failure to keep proper accounts, 13, 102. examiner divulging facts, 23. joint interchangeable mileage tickets, 9, 13, 111. corporation liable if officer is, 116. failure to file and pubUsh tariffs, 13, 60, 94, 116, 159, 174, 198, 266. rebate, concession or discrimination, 10, 13, 48, 116, 118, 120. departure from rates, 11, 22, 116. CRIMINATING TESTIMONY, 72. CUSTOMS DUTIES— imless schedules published, 65. CUSTOMS INSPECTORS— may have free pass, 27, 34. DAMAGES— may be satisfied by carrier, 14, 80. award of, 14, 82, 87. carriers liable to person injured, 17, 70. claim for, where presented, 17, 72. carriers liable jointly and severally, 17, 74. limitation, 24, 97. carrier liable for, 70. measure of, 70. claims for, assignable, 70. jurisdiction of actions, 70. on complaint to the Commission, 72. complaint not dismissed for want of, 80. must be stated in report, 82. award of, upon hearing, 87. joint plaintiffs may sue joint defendants, 87. INDEX 385 Refkrences sre to pages. DAMAGES— ijontinued. in proceeding under Elldns Act, 119. under Employers' Liability Act, 342, 345. DAMAGED OR DESTROYED CARS— may transport free, 241. DECISION— report and conclusions, 14, 82. publication of, 82. DELIVERING PROPERTY— wholly within a State, 26. DEMURRAGE— no waiver of charges, 43. why imposed, 43. niling on, 232, 264. ruling. Supplement No. 1, 240. on privately owned cars, 241, 242. resulting from strikes, 24i8. on astray shipments, 252. charges must be collected, 253. accrued charges, 254. jurisdiction over, 257. DEMURRAGE ON PRIVATE TANK CARS— re investigation, 316. DEMURRER— notice in nature of, 322. finding liberally construed, 91. DEPARTURE FROM PUBLISHED RATES— prohibited, 11, 116, 118. venue of suits, 18, 118. DEPOSITIONS, 6, 76. may be taken at any stage, 14, 77. witnesses may be compelled to testify, 14, 77. Commission may order, 77; before whom taken, 78. notice of, 78. compelled to attend, 78. when in foreign country, 78. under rules of practice, 324. DEPOT— schedules must be posted in, 64. DESTITUTE AND HOMELESS PERSONS— free carriage, 110. DETOURED TRAINS— tariff must be applied, 218. 25 386 INDEX References are to pages. DEVICES— prohibited, 10, 48. to refund prohibited, 66. DIFFERENTIALS— between grain and grain products, 56. between competitive cities, 56. from same coal district, 58. DIFFERENTIAL FREIGHT RATES— le investigation, 316. DIFFERENTIALS TO ATLANTIC PORTS— le investigation, 316. DIGEST OF CASES, 26. DISADVANTAGE OR PREJUDICE— declared unlawful, 54. DISCRIMINATE— carriers shall not between connecting lines, 54. induce a carrier to, 13, 17, 73. DISCRIMINATION (see Unjust Discrimination)- giving or receiving prohibited, 13, 116. venue of suits, 17, 18, 87, 89. under Elkins Act, 116, 119. DISCRIMINATING BETWEEN CONNECTING LINES— prohibited, 11, 54. DISOBEDIENCE OF ORDER— other than to pay money, 89. DISOBEDIENCE TO SUBPCENA— Commission may have aid of court, 77. DISPARITY IN RATES— not undue discrimination; 61. DISSIMILAR CIRCUMSTANCES AND CONDITIONS— in long and short haul, 60. DISTANCE TARIFF— when used, 170. other requirements, 170. DISTRIBUTION OF CARS— .subject analyzed and decided, 56. DISTRICT ATTORNEYS— to institute suit, 17, 76. to prosecute for recovery of forfeiture, 88. to proceed under Elkins Act, 119. duties under Hours of Service Law, 138. INDEX 387 References are to pages. DISTRICT OF COLUMBIA— venue of suit, 18, 90. Street Railway Acts, 161. DIVERSION CHARGES— must be shown in tariff, 169. DIVISION— of proceeds of sale to pay freight, 254. DIVISION OF EARNINGS— prohibited, 11, 63. DIVISION OF JOINT RATES— Commission may make order, IS, 83, 164 contracts must be filed, 217. DIVISION OF RATES— Commission may apportion, 83, 164. DIVULGING FACTS— examiners forbidden, 23, 104. DOCUMENTARY EVIDENCE— witnesses compelled to produce, 14, 76, DRAWBACKS— prohibited, 10, 48. DRAWBARS— standard height of, 126. DRAYAGE CHARGES— refimd for misrouting, 251. DRIVING-WHEEL AND TRAIN BRAKES— Safety Appliance Act, 126. DUTIES OF COMMON CARRIERS— specific enumeration of, 7 EARNINGS— division of, prohibited, 11, 63 EATING HOUSES— operated by carriers, 266. EDITORS OF NEWSPAPERS— not entitled to free pass, 34. ELECT— complainant must elect method of procedure, 17, 72. ELEVATION— included in "transportation," 24, 27 of grain defined, 42. 388 INDEX References are to pages. ELKINS ACT— venue of suits, 18, 117, 119. appeals vinder, 21, 119. procedure under, 22, 116. petition, 22, 116, 119. general provisions, 116. ELECTRICAL POWER— tariffs on, ruling, 247. EMPLOYEES— may have free pass, 27. definition of, 28. under Safety Appliance Acts, 127. in Hours of Service Act, 137. construction of under Arbitration Act, 140. ruling on free pass, 219. dead body, free transportation, 250. free pass when on leave, 257. EMPLOYERS' LIABILITY ACT— statutes and construction, 342, 344. EMPTY CARS— under Safety AppUance Act, 134. ENFORCEMENT— order to pay money, 16, 87. under Elkins Act, 22, 118. ENFORCEMENT OF ORDERS OTHER THAN TO PAY MONEY— on petition to Circuit Court for injunction or other proper process, 16, 89, 104. ENFORCEMENT OF PENALTIES— see analysis of Act, 7, 8, 9, 10, 11, 12, 13. ENGLISH RAILWAY ACTS— must be adopted for purposes of construction, 29. ENID AND ANADARKO RY.— right of way for, 129. safety signals, 129. ENTERTAINMENTS— by carrier, ruling on, 234. EQUAL FACILITIES— for interchange of traffic, 7, 54. EQUALIZING TARIFFS— are unlawful, 218. EQUIPMENT— whether it can be diverted, 39. under Safety Appliance Act, 125. must be kept in order, 134. INDEX ,389 Referencee ar« to ptgte. EQUITY— may enjoin schedule of rates, 71. may administer new remedies, 71. ESTOPPEL— Commission's duty as to, 81. EVIDENCE— testimony, when taken, 14, 77. by deposition at any stage, 14, 77. witnesses may be compelled to testify, 14, 78. extracts from tariffs, contracts, etc., 14, 68. findings of fact prima facie, 87, 97. copies of schedules, etc., prima facie, 90. accident reports not used as, 136. under rules of practice, 325. EXAMINERS— duties of, 103, 104. divulging facts, 23, 104. EXCESSIVE PENALTIES, 45. Act imconstitutional, 45. enormous fines, 45. EXCEPTIONS— should be included in tariff they affect, 178. allowed, to change in rates, 213. EXCEPTION SHEETS— fiUng of, 174. EXCEPTIONS TO AWARD— tmder Arbitration Act, 143; EXCHANGE OF PASSES— with whom, 28. officers and employees may, 111. at reduced rates, 110. invalidated, when, 252. EXCURSIONS— school picnics, 262. EXCURSION FARES- EXCURSION TICKETS— round trip, included in concurrence, 204. EXPEDITING ACT— applicable under Elkins Act, 119. generally, 123. EXPEDITING SUIT— to whom applicable, 90. 390 INDEX Befereaoea are to pages. EXPENSES— of Commission and employees, how paid, 101. of investigation, 5, 101. EXPLOSIVES— transportation of, 157. classification of, 228. EXPORT RATES— re investigation, 315. EXPORT AND DOMESTIC GRAIN RATES— re investigation, 316. EXPORT AND IMPORT RATES— publication of, 30. must be published, 67. must be filed and published, 120. EXPORT AND IMPORT TARIFF— carriers must publish, 237. of express companies, 308. EXPOSITIONS AND FAIRS— free or reduced rates, 110. EXPRESS BUSINESS— re investigation, 315. EXPRESS CARS— employees have free pass, 27. EXPRESS COMPANIES— are subject to the Act, 26. cannot carry freight free for officials or employees, of railroads or express companies, 33. officials and employees may exchange free transportation, 33. transportation for is interstate commerce, 132. TarifiE Circular No. 16-A. general provisions, 272. tariffs must be printed, 273. form and size, 273. Bubstituting'rate, 275. rates, 276. routes, 276. routing, 276. basing tariff, 276. term "points," 277. commodity rates, 277. mixed shipments, 278. cancellations, 278. amendments, 279. supplements, 279. INDEX 391 References are to pages. EXPRESS COMPANIES— continued, index, 280. summer tariff, 281. concurrences, 281, 282, 286. joint agent, 282. duplicating rate, 282. - must be posted and filed, 282. state rates must be filed, 283. local tariff must be filed, 283. notice, 283. postage on tariff, 283. telegraph notice, 284. rejected schedules, 284. Commission's decision, 284. less than thirty days' notice, 284. orders of court, 285. numbering of tariff, 285. two copies to be filed, 285. send to auditor, 285. classification by joint agent, 285. participating carriers, 286. power of attorney, 286. form of appointment, 286. letter of transmittal, 294. administrative ruling and opinion, 296. when filed and published must become effective, 296. exceptions, 296, 298. joint rates greater or less than locals, 297. reduction of joint rate, 297. through rate higher than sum of locals, 297. new ofi&ces, 298. carload shipment, 298. emergency or necessity, 299. less than thirty days' notice, 299. agent's authority, 299. request, who from, 299. concurring express companies, 299. contracts for joint rates, 300. blockades, 300. as to free transportation of persons, 300. division of joint rates, 300. contracts, 300. transporting for government, 300. payment for transportation must be in money, 301. routing and misrouting, 301. overcharge, 301. maximum rate, 302. combination, 302. no preferential rates to carriers, 303. 392 INDEX Befwenoes «re to PMWk EXPRESS COMPANIES— continued. astray shipments, 303. return of damaged shipments, 303, 304. shipments refused, 304. distribution of circulars, 304. reparation on informal complaints, 305. shipper must pay lawful charges, 306. statute of limitations, 306. concurrence in joint tariff, 306. overcharge, 307. withdrawal of tariff, 308. EXTENSIONS— on limited tickets, 236. on tickets, 255. under rules of practice, 323. EXTERNAL POWERS OF COMMISSION— specific enumeration of, 5. EXTRACTS— from record, evidence, 91. FACILITIES FOR INTERCHANGE OF TRAFFIC— carriers must furnish, 54, 58. FAIRS AND EXPOSITIONS— free or reduced rates, 110. FALSE BILLING— prohibited, 12, 73. classification, 73, 74. weighing, 73, 74. representation of contents, etc., 73, 74. report of weight, 73, 74. by any person, penalties for, 73, 74. false classification, prohibited, 12, 73. FALSE ENTRIES— falsify, mutilate or destroy records, 13, 104. punishment for, 104. FALSE REPRESENTATION OF CONTENTS OF A PACKAGE, 12, 73, 74. FALSE VALUATION— ruling on, 258. FALSE WEIGHING— prohibited, 12, 73, 74, FAMILIES— of employees, free pass, 27. definition of, who entitled to free pass, 28, 34. includes household servant, 268. as to free pass, 269. INDEX 393 References are to pagea. FARES (see Passengek Fake Schedules) — FAST FREIGHT LINE— billing books are tariffs, 177. how filed, 177. FEDERAL GOVERNMENT— reduced rates for, 253. FEDERAL TROOPS— transportation of, 228. FEEDING AND GRAZING— in transit, 250. FEES— of witness, 25, 78. of magistrate, 78. FERRIES AND BRIDGES— inland and railroad, 26. FILING AND PUBLICATION OF RATE SCHEDULES— re investigation, 315. FINDINGS OF FACT— included in report of investigation when award is made, 14, 82. as to just and reasonable rates, 37. when prima facie evidence, 87, 91. weight of, 92. FLOODS— blockade by, 265. FOREIGN COMMERCE— jurisdiction of Commission over, 30, 31. FOREIGN COUNTRY— schedules showing rates, 64. FORFEITURES— for failure to obey order, 16, 88. venue of suits, 17, 88, 117. where payable, 20, 88. how recoverable, 20, 88, 117. in case of rebates, 20, 117. for failure to comply with order made under sec. 15, 88. district attorneys to prosecute, 88. for failure to file reports, 103. for failure to keep accounts, 103. under EUdns Act, 117. Attorney-General to collect, 118. witness not liable to, where compelled to testify, 121. under Sherman Anti-Trust Act, 347. 394 INDEX References are to pages. FORMS— of schedules, Commission may prescribe, 65. of accident report, 136. of submission imder Arbitration Act, 141. of tariiis, 160. appointment of agent, 180. concurrence, 181, 182, 183, 184, 186. letters of transmittal, 188. passenger fare schedule, 190. local tariffs, 191. of appointment of agent under passenger tariff, 201. of concurrence vmder passenger fare, 204. of letter of transmittal under passager tariff, 209. of complaint, 328. of answer, 329. notice, 330. Bubpcena, 330. depositions, 331. FRANCHISES OF A CORPORATION— exercised in subordination to power to regulate commerce, 340. FRAUD— what constitutes, 74. FREE BAGGAGE— carried with joint interchangeable mileage tickets, 9, 111. with mileage tickets, 111. FREE PASS— prohibited, 27. exceptions, 27, 32, 110. interchange of, 28, 111. land and immigration agent, 32, 219. telegraph companies, 32, 220. newspaper employees, ,32, 220. cannot exchange, etc., 32. passenger assumes risk, 32. contract for not invalidated, 32. conference rulings on, 32. local attorneys not entitled to, 32, 33. local surgeons not entitled to, 32. nothing but money can be received for, 33, 221. representatives of correspondence schools cannot have, 33. inspector of employees' watches, 33. solicitors for insurance companies, 33. intrastate cannot be honored for interstate journey, 33. W. C. T. U. not entitled, 33. editors not entitled, 34. circus agents, 34. caretakers, 34, 35, 218, 247, 250, 254. INDEX 395 References are to pages. FREE PASS— must show thirty days' notice, 199. shall specify cancellations, 194. reissuing, 195. index of, 196. filing of, 198. of fares prescribed by Commission, 200. amended on less than thirty days' notice, 215. carrier participating, 236. electrical power, 247. filed with no effective date, 249. must be concurred in, 249. imderstamding with shippers no effect unless published, 250. effective on Sunday, 256. effect of failure to cancel old rate, 261. effective date of, 262. posting at stations, 266. containing long and short haul, maxima rules, etc., 267. of express companies, 272 (see Express Companies). TARIFF CIRCULAR NO. 15-A— general provisions, 159. Supplement No. 1, 240. amended rule 7, 242. amended rule 8, 243. amended rules 9 and 38, 243. amended rule 11, 244. amended rule 37, 244. amended rule 38, 244. amended rule 39, 244. amended rule 82, 245. TARIFF CIRCULAR NO. 16-A— general provisions, 272. INDEX 425 - ^ef^rences aretP pages. TARIFFS OF EXPORT AND IMPORT— re investigation, 316. TARIFF LAWS— Congress did not intend to reinforce provisions of, 55. TEAM OR WAGON— not included in Act, 30. TELEGRAPH— employees may have free pass, 27, 220, 268. TELEPHONE— employees may have free pass, 27, 220, 268. TERMINAL CHARGES— schedules shall show, 64, 66, 169. ' TERMINAL COMPANIES— when subject to the Act, 42. TERMINAL FACILITIES— included in "railroad," 23, 27, 42. not to give use of to other connecting carriers, 54. TERRITORIES— commerce in, 31. when admitted as a State, 31, 81. THROUGH BILLS OF LADING— carrier participating in, engaged in interstate commerce, 29. THROUGH CONNECTIONS— a State may order, 340. THROUGH RATES— carrier participating in, engaged in interstate commerce, 29. not to exceed sum of the locals, 38, 215. THROUGH ROUTES— may be established by the Commission, 7, 84. carriers shall provide, 27. test of common control, etc., 30. schedules must be posted, 64. , THROUGH ROUTES AND JOINT RATES (see generally, 67)— Commission may establish, 84. re investigation, 316. THROUGH SHIPMENTS— when no joint rate applies, 164. THROUGH TICKETS— when no joint fares apply, 194. TICKETS— redemption, 246, 263. 426 INDEX References are to Dages TICKETS— continued, validation, 240, 263. commutation, in interstate journey, 251. through passenger, extension of time on. 2^1 excursion invalidated, ^52. meals, hotels, etc., 252. extensions of, 255. limitations on, 255. TICKET AGENT— error by, ruling, 261. TIMBER— may be transported, 28. TIME OF TAKING EFFECT OP ACT, lift. TITLE-PAGE— of tariffs, must show, 175. TONNAGE— substituting in transit, 242, 265. TORT— claims for damages founded in, 94 TRACKS— included in railroad, 27. TRACK STORAGE CHARGES— discrimination in, 58. TRACKAGE AND MILEAGE— re investigation, 315. TRAINS— chartering, 264. train-load rates, 50. TRANSFER COMPANIES— as to free pass for, 268. TRANSFER IN TRANSIT— included in " transportation," 24, 27. TRANSIT PRIVILEGES— must be shown in tariff, 169. not retroactive, 263. shipments moving imder former tariff, 264. TRANSPORTATION— must be furnished upon request, 7, 27. at less than regular rates, prohibited, 12, 73. definition of term, 24, 27. free, prohibited, 27. construction of under Arbitration Act, 140. INDEX 427 References are to pages. TRANSPORTATIONr-continued. nothing but money can be received for, 221, 301. TRANSPORTATION OF COAL— re investigation, 315. TRANSPORTATION OF DRESSED MEATS— re investigation, 315. TRANSPORTATION OF EXPLOSIVES— general provisions, 157. TRANSPORTATION OF FLOUR— re investigation, 315. TRANSSHIPMENT— port of, 26. TREASURY OP UNITED STATES— forfeitures payable to, 88. TROOPS— must have precedence in time of war, 8, 66. transportation of, 228. TRUCKS— of wrecked cars, 241. UNDERBILLING FREIGHT— re investigation, 315. UNDERCHARGES— collection of, 247. delivering carrier must collect, 249. UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDI- TIONS— what phrase refers to, 48. carrier must determine, 50. through and local shipments, 51. comparison of rates, 51. import and export rates, 51. facts to be considered, 51. competition, 51. UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE— declared unlawful, 10, 54. construction of Act, 54. question of fact, 54. cannot be determined by mathematical calculation, 54. competition must be considered, 54. potential water competition, 54. cartage, 54. switching facilities and service, 55. private cars, 55. ,428 INDEX Beferencea are to pages. UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE— con- tinued, car shortage, 55. delivery of cattle at stock yards, 55. arising from voluntary or wrongful act of carrier, 55. competition in, 55. . . . import and export rates, 55. UNIFORM SYSTEM OF ACCOUNTS— carriers must keep, 6, 102. Commission may prescribe, 102. UNITED STATES— may have free or reduced rates, 110, 253, 261. transportation for by express companies, 301. UNJUST AND UNREASONABLE CHARGES FOR TRANSPORTATION - prohibited, 10, 27, 83. penalty for, 10, 73, 83. enforcement of, 10, 73, 83. UNJUST DISCRIMINATION— prohibited, 12, 48, 73, 116. may have action for damages, 25, 70, 73, 118. not necessarily unjust, 43. in track storage, 43. purpose of sec. 2, 48. round-trip tickets at reduced rates, not, 49. in storage, 49. private cars, 49. rebates for private cars, 49. underbilling weight, 49. false classification, 49. service of cars, 49. manufacturers' rate, 49. classifioation, 49. use of private cars, 50. in cargo or train-load rates, 50. stoppage in transit privilege, 50. disparity in rates, 52. punishment for, 73. to induce carrier, 74. UNLAWFUL DISCRIMINATION— re investigations, 316. UNLOADING CARS— - carriers' duty, 43. VACANCY IN OFFICE OF COMMISSION, 4, 76, 114. VACATE— order not vacated by appeal, 89. INDEX, 42,9 References are to pages. VALIDATION OF TICKETS, 263. VALUATION— declaring false, 258. VEGETABLES— free pass to caretakers, 219. carried on boats, 260. VENTILATION— included in "transportation," 24, 27. VENUE OF SUITS— to enforce orders for payment of money, 17, 87. to recover forfeitures, 17, 88 (see Fobfeituke). orders other than to pay money, 17, 90. against the Commission, 17, 89. against carriers by Commission, 18, 89, 118. under Elkins Act, 22, 117. of suits in Circuit Court, 89. of suit imder Sherman Anti-Trust Act, 347. VOLUNTARY REDUCTION OF RATES— effect of, as evidence of unreasonableness, 96. VOTERS' TICKETS, 212. WASHINGTON RAILWAY AND ELECTRIC COMPANY- Street Railway Acts, 151. WASHINGTON, D. C— Street Railway Acts, 151. WATER CARRIERS— not included in Act, 30. WATER AND RAIL RATES— regulations governing, 172. WAR— troops and material must have precedence, 8, 66. WEIGHT— at origin and destination, 38. of report of findings, 92. WEIGHING AND REWEIGHING— cars and commodities, 59. WITHDRAWAL OF TARIFF— not permitted, 236. WITNESSES— fees of, 25, 78, 101, 325. may have free pass, 27. Commission may require attendance, 77, 119. 480 INDEX References are zb pages. WITNESSES— continued. production of books, etc., 77. from any place in the United States, 77 immunity of, 77, 79, 121. may be prosecuted for perjuiy, 120, 349. existing law applicable to, 114. compelled to testify, 121. who immune, 122. under rules of practice, 325. may be required to attend, 5, 77, 119. WOMEN'S CHRISTIAN TEMPERANCE UNION- not entitled to free pass, 33, 34. YARDS— included in " railroad," 24, 27. YOUNG MEN'S CHRISTIAN ASSOCIATION— traveling secretaries may have free pass, 27, 34. KF 2276 (1908 """"U.S. Laws, Statutes, etc. ^°'' Title jije -Law relating to the Inte^E'' state commerce commission. Date Borrower's Name r