• 53 7 v,r- %l c CORNELL LAW LIBRARY From the Library of the Late ROBERTS WALKER Friend and Partner of Justin DuPratt White (Cornell '90) Presented to Cornell University - In Memory of That Relationship by MR. WALKER'S FAMILY Cornell University Library KF 2276.53. W47 The Interstate commerce law :being the a 3 1924 017 148 531 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017148531 THE INTERSTATE COMMERCE LAW: BEING THE ACT TO KEGULATE COMMERCE, WHICH WAS' APPROVED FEBRUARY 4, 1887, AND IN EFFECT APRIL 5, 1887; AS AMENDED BY ACT APPROVED AND IN EFFECT MARCH 2, 1889, AND ACT APPROVED AND IN EFFECT FEBRUARY 10, 1891; RULES AND FORMS ADOPTED BY THE COMMISSION, TOGETHER WITH ANNOTATIONS OF CASES CONSTRUING THE LAW, DECIDED BY THE INTERSTATE COMMERCE COMMISSION, UNITED STATES SUPREME COURT, AND FEDERAL COURTS. BY O JOHN THEO. WENTWORTH, of the wisconsin bar, Former Law Clerk of the Interstate Commerce Commission. CHICAGO: T. H. FLOOD & CO. 1891. Bf?/9S Entered according to Act of Congress, in the year 1891, by JOHN THEO. WENTWORTH, in the office of the Librarian of Congress, at Washington. STATE JOURNAL PRINTING COMPANY, Printers and Stereotyfers, madison, wis. PREFACE. The volume Here presented is intended to serve the pur- pose of conveying to such as are interested in " the act to regulate commerce " a rapid understanding of its practical workings. It is believed that the close of the four years' existence of this great law completes a stadium in its growth, and that the master-lines of the institution are now marked out. The method pursued has been to print each section of the law as amended, in paragraphs, separating such as treat of more than one subject, and to give under each 1 , a trenchant statement of the points made and constructions given by the Commission relative to the subject-matter of the particular paragraph. To this has been added copies of the rules of practice adopted by the Commission in its judicial function, together with notes of cases bearing thereon, cross-references, a table of cases, a table of sub- jects, and a complete index. It will not be claimed that the work is free from errors. Accurate condensation is no easy task. To be full, exact and ready is a combination of qualities rarely to be found. But it is intended that the railway lawyer, rate-maker and shipper shall here find a speedy answer to many annoying questions, and a guide to direct him to more elaborate discussion of the subjects upon which light is sought. De- IV PEEFACE. cisions of English and State Courts relating to statutes more or less similar to " the act to regulate commerce " are omitted. A few cases from the United States Supreme Court and Federal Courts bearing directly upon the act have been added, and nothing more. It will be seen that many of the sections of the law have not as yet been subject to judicial construction, and in their nature are not likely to become so. J. Theo. "Wentwobth. Racine, Wis., July 10, 1891. INTERSTATE COMMERCE COMMISSION. Hon. THOMAS M. COOLEY, Michigan, Chairman. Hon. 'WILLIAM R MORRISON, Illinoir Hon. WALTER L. BRAGG, Alabama. Hon. WHEELOCK G. VEAZEY, Vermont. Hon. MARTIN A. KNAPP, New York. Edward A Moseley, Secretary. FORMER MEMBERS OF COMMISSION. F. Hon. ALDACE a WALKER, Vermont. Hon. AUGUSTUS SCHOONMAKER, New York. t M> TABLE OF CONTENTS. Preface iii Table of Cases ix Table of Subjects xvii Sec. 1. A. Jurisdiction 1 B. Reasonable Rates 9 " 2. Unjust Discrimination 27 " 3. A. Undue Preference 40 B. Facilities for Interchange of Traffic . . .40 " 4. Long and Short Haul 42 " 5. Pooling 46 " 6. A. Posting of Schedules 46 B. Posting of Schedules of Foreign Freight . . 49 C. Notice of Change of Rates 49 D. Published Rates Not to Be Deviated from . . 50 E. Copies of Schedules, Rates, Fares and Charges to Be Filed with the Commission . . . .50 F. Notice of Change in Joint Rates . . . .51 G. Joint Rates Not to Be Deviated from . . .51 H. Form of Joint Schedules 52 L Penalties for Refusing to File and Post Sched- ules . . . . . . . . . 53 " 7. Continuous Carriage of Freight Not to Be Unneces- sarily Interrupted 53 " 8. Liability of Carrier for Damages . . . .54 " 9. Action for Damages 55 " 10. A. Penalties for Violations of the Act . . .56 B. Penalties for False Billing by Carrier . . 57 C. Penalties for Billing by Shipper . . . .57 D. Penalties for Inducing Unjust Discrimination . 58 " 11. Commissioners' Appointment and Terms of Office . 59 " 12. Powers and Duties of Commission in Respect to the Taking of Evidence by Deposition or Otherwise 60 " 13. Pleadings and Practice 63 " 14. A. Findings of Fact 71 B. Reports of Decisions 71 " 15. Notice to Carrier After Investigation . . 72 Vlll TABLE OF CONTENTS. Sec. 16. Petition to United, States Circuit Courts on Viola- tion op Okder or Commission and Proceedings Thereon 73 17. Power of Commission to Make Rules of Practice . 76 18. Salary of Commissioners, Secretary, etc. . . .76 19. Offices and Place op Hearing - ,77 20. Reports op Carriers to Commission . . . .77 31. Reports to' Congress 78 22. Exceptions as to Reduced Rates, Passes and Pend- ing Litigation 79 23. Mandamus to Carriers . . . ' . . . .82 Rules of Practice: 1. Public sessions 85 2. Parties . . . . . . .* . . .86 3. Complaints under section 13 87 4. Answers 88 5. Notice of hearing on complaint 89 6. Service of papers . . T 90 7. Affidavits 90 8. Amendments 90 9. Adjournments and extensions of time , . . . .90 10. Stipulations 91 11. Hearings . 91 12. Witnesses and depositions 94 13. Proposed findings of fact 95 14 Rehearings 95 15. Printing of pleadings, etc 96 16. Copies 96 17. Address of the Commission .96 Revised Statutes United States, sections 863, 864 . . .97 Forms 99 Appendix 105 Index 107 TABLE OF CASES. Alford v. Chicago, Rock Island & Pacific R'y Co., 3 I. C. C, 519 . 8 Allen et aL v. Louisville, New Albany & Chicago R. R Co., 1 L C. C, 199 68,86 Andrews Soap Co. v. Pittsburgh, Cincinnati & St. Louis R R Co., -4LGG(3I. G, 77) 63,94 Associated Wholesale Grocers of St. Louis v. Missouri Pacific R'y Co., 1 L O. C, 156 34, 80, 81 Atlanta & "West Point R R Co. et al., In re Tariffs and~Classifica- tions, 3 L C. C, 19 11, 28, 66, 85 Bates et aL v. Pennsylvania R R. Co. et al., 3 L C. C, 435 . 13, 29, 45 Bates v. Pennsylvania R R Co., 4 I. C. C. (3 I. C, 296) . . 45, 69, 96 Beaver et al v. P., C. & St L R'y Co. et al., 4 L C. C. (3 I C, 564) 13, 26, 29, 30, 31 Bishop v. Duvall, Receiver of the Florida Railway & Navigation Co., 3 L C. C, 128 8, 96, 93 Boards of Trade Union of Farmington, etc., v. Chicago, Milwaukee & St Paul R'y Co., 1 I. C. C, 215 19, 36 Boston & Albany R R. Co. v. Boston & Lowell R R Co. et al., 1 1. C. C, 158 6, 45, 68, 86 Boston Fruit and Produce Exchange v. New York & New England R. R Co., 4 I. C. C. (3 L C, 493) ... 2, 16, 23, 54, 70, 72 Boston Chamber of Commerce v. Lake Shore & Michigan South- ern R'y Co., 1IC. C, 436 (with Boston Chamber of Commerce v. L. S. & M. Sou. R. R Co., Boston Chamber of Commerce v. N. Y. Cen. & H. R R R Co.) ... 15, 16, 17, 21, 23, 26, 36 •Brady et al v. Pennsylvania R R Co. et al, 2 I. ,C. C, 131 6, 10, 11, 24, 25, 38, 54 Burton Stock Car Co. v. Chicago, Burlington & Quincy R R Co. et al. 1 L G G, 132 7 Business Men's Association of the State of Minnesota v. Chicago, St Paul, Minneapolis & Omaha R'y Co., 2 L C. G, 52 3, 9, 14, 15, 24, 36, 45 Business Men's Association of the State of Minnesota v. Chicago & Northwestern R'y Co., 2 I. C. G, 73 . .6, 9, 14, 16, 19, 65, 92 X • TABLE OF CASES. Capehart et al. v. Louisville & Nashville R E. Co., 4 1. C. C. (3 I. C, . 278) . . 7, 24 Chamber of Commerce of the City of Milwaukee v. Flint & Pere Marquette E. E Co. et al:, 2 I. C. C, 553 . . . 20, 23, 34, 35, 37 Chappalle v. Chicago & Alton E. E. Co., 3 I. C. C, 241 (see Leonard v. Same). Chicago & Alton E. E Co. v. Pennsylvania E. E Co., 1 1. C. C, 86 (with Chicago & Alton E. E. Co. v. Penn. Co.) . . . 7, 41 Chicago Board of Trade v. Chicago & Alton R R Co. et al., 4 I. C. C. (3 I. C, 233). Chicago, M. & St. P. E'y Co. v. State of Minnesota, 134 IT. S. Sup. Ct., 418 22 Chicago, Eock Island & Pacific E'y Co. v. Chicago & Alton E E. Co., 3 I. C. C, 450 9, 23, 37 Chicago, Eock Island & Pacific E'y Co. v. N. Y. C. & H. R R R Co. (with C. & A. R R Co. v. Penn. Co., 1 1. C. C, 86). Chicago, St. Louis & Pittsburgh E. E Co. v. Cleveland, Cincinnati, Chicago & St. Louis E'y Co., 3 I. C. C, 223 (see Penn. Co. v. L, N. A. & C. E'y Co., 3 I. C. C, 223). Chicago, St. Paul & Kansas City E'y Co., In re, 2 L C. C, 231 2, 7, 25, 67, 93 Clark, F. W., General Freight Agent of Seaboard Air Line, In re, 31, C. C, 649. Columbus & Western E'y, In re The Tariffs of, 1 1. C. C, 626 . 12 Conductors, In re Petition of E'y, 1 1. C. C, 8 . . . . 6 Councill v. Western & Atlantic R R Co., 1 I. C. C, 339 2, 6, 35, 64, 66, 91, 92 Counselmam, In re, 44 Fed. Eep., 268 62, 70 Coxe et al v. Lehigh Valley R R Co., 4 1. C. C. (3 I. C, 460) . . 8, 14, 17, 18, 24, 30, 33, 43 Crews et aL v. Eichmond & Danville R E. Co., 1 1. C. C, 401 . 7, 14, 20, 21, 22, 36, 37 Delaware State Grange of the Patrons of Husbandry v. New York, » Philadelphia & Norfolk R R Co. et al, 2 I. C. C, 309 64, 68, 85, 90 Delaware State Grange, etc., v. N. Y., P. & N. R R Co. et al. (2d Case), 4 I. C. C. (3 I. C, 554) . . . ... . , 17, 26 Detroit Board of Trade et al v. Grand Trunk E'y of Canada et al., 2 I. C. C, 315 . : 17, 23, 37 Elvey v. Illinois Central E E Co.. 3 I. C. C, 652 . . . . 32, 80 Evans v. Oregon Eailway & Navigation Co., 1 1. C. C, 325 . . 10, 14, 19, 20, 26 Export Tariffs, In re Publication of, 1 1. C. C, 658 ... 47, 52 Export Trade Boston, In re, 1 1. C. C, 24 16 Express Companies, In re, 1 1. C. C, 349 4, 5 TABLE OF OASES. XI Farmington, etc., Board of Trade v. C, M. & St. P. R'y Co., 1 L C. C, 215 .19, 21, 36 Farxar et al. v. East Tennessee, Virginia & Georgia R'y Co., 1 1. C. C, 480 . 9 Fish and Fisheries, In re United States Commission of, 1 1. C. C, 21 8, 82 Food Products, In re Alleged Excessive Freight Rates and Charges on (Case No. 1), 4 1 C. C. (3 I. C.,_93) ... 2, 11, 16, 17, 19 Food Products, Rates and Charges on (Case No. 2), 4 I C. C. (3 1. C, 151) 2,66,85 Fulton v. Chicago, St. Paul, Minneapolis & Omaha R. R. Co., 1 I. C. C, 104 11,64,92 Grand Trunk Railway Company of Canada, In re Investigation of, 3 I. C. C, 89 4, 11, 38, 48, 54, 66, 85 Greene v. N..Y. Cen. & H. R R R Co., 3 I. C. C, 473 (see Thurber v. Same). Griffee v. Burlington & Missouri River R R. Co. in Nebraska, 2 I. C. C, 301 32 Haddock v. Delaware, Lackawanna & "Western R. R Co., 4 I C. C. (31. C, 302) ... ... 4,62,67,70,89,94 Hamilton et aL v. Chattanooga, Rome & Columbus R. R. Co. et al., 4 I C. C. (3 I. C, 482) ' 11, 23, 28, 37, 68, 86 Harding v. C, St Paul, Minn. & O. R. R. Co. (see Fulton v. Same). Harvard Co. v. Pennsylvania Co., 4 L C. C. (3 I. C, 257) 10, 11, 13, 26, 27, 29, 30 Harwell et al v. Columbus & Western R R Co. et al., 1 1. C. C, 236 39, 45, 68, 86 Hays v. Pennsylvania R R Co., 12 Fed. Rep., 309 . . . 10, 27 Heard v. Georgia R. R. Co., 1 1 C. C, 428 35 Heard v. Georgia R R Co., 3 I C. C, 111 35 Heck et aL v. East Tennessee, Virginia & Georgia R'y Co. et al, 1 L C. C, 495 . . . . . t 4, 6 Holbrook et al. v. St Paul, Minneapolis & Manitoba R. R. Co., 1 L C. C, 102 67, 93 Howell et aL v. New York, Lake Erie & Western R R Co. et aL, 21. C. C, 272 18,20,33,43 Hurlburt v. Lake Shore & Michigan Southern. R'y Co., 2 I. C. C, 122 • . 13,29,68,71,86 Hurlburt v. Pennsylvania R R. Co., 2 I. C. C, 130 (see Same v. L. S. &M.S.R'yCo.). Imperial Coal Company et al v. Pittsburgh & Lake Erie R R Co. et al, 2 I. C. C, 618 .... 13, 15, 16, 18, 19, 26, 33, 43 .Indian Supplies, In re, 1 L C. C, 15 8 Xll TABLE OF CASES. Interstate Commerce Commission v. Baltimore & Ohio R R. Co., 43 Fed. Rep., 37 34 Iowa Barb Steel Wire Co., In re, 1 L C. C, 17 . . . 4, 7, 67, 93 Jackson v. St Louis, Arkansas & Texas R'y Co., 1 1 C. C, 184 11, 68, 89 James et aL v. East Tennessee, Virginia & Georgia R'y Co. et aL, 3 LC. C, 225 11,16,17,22,26,46 Joint Tariffs, In re Piling of, 1 L C. C, 657 5 Joint Tariffs, In re Publication of, 1 L C. C, 5 . . . . 48, 52 Joint Tariffs and Schedules, In re, 1 L C. C, 225 . . . . 47 Joint Water and Rail Lines, In re, 2 L C. C, 645 .... 7 Kauffman Milling Co. v. Missouri Pacific R'y Co. et aL, 4 I. C. C. (3 I C, 400), ' 8 Keith et aL v. Kentucky Central R R Co., 1 L C. C, 189 . 32, 67, 93 Kentucky & Indiana Bridge Co. v. Louisville & Nashville R. R Co., 2 1 C. C. 162 3,40 Kentucky & Indiana Bridge Co. v. L. & N. R. R. Co., 37 Fed. Rep., 567 3,7,40 King et aL v. New York, New Haven & Hartford R R Co., 4 L C. C. (3 1. C, 272) . . . 45 Kinsley v. Buffalo, New York & P. R R Co., 37 Fed. Rep., 181 . 10, 27 Koehler, Ex parte, 25 Fed. Rep., 73 . ■. . . . . 43 Koehler, Ex parte, 31 Fed. Rep., 315 43, 81 La Crosse Manufacturers' and Jobbers' Union v. Chicago, Milwau- kee & St. Paul R'y Co., 1 1. C. C, 629 . . 7, 14, 19, 65, 80, 88 Larrisoh v. Chicago & Grand Trunk R'y Co., 1 1. C. C, 147 . . 34. 81 Leggett et al. v. N. Y. Cent & H R R R Co. et al., 3 L C. C, 473 (see Thurber v. Same). Lehmann et al. v. Southern Pacific R. R Co., 4 I. C. C. (3 I. C, 80) 2, 10, 12, 28, 45 Leonard v. Chicago & Alton R R Co., 3 I. C. C, 241 . . 8, 12, 28 Leonard v. Union Pacific R'y Co., 1 1. C. C, 185 . . . . 64, 92 Lincoln Board of Trade v. Burlington & Missouri River R R Co. in Nebraska et al., 2 I. C. C, 147 9 Lincoln Board of Trade v. Missouri Pacific R'y Co., 2 I. C. C, 155 . 15, 16 Lincoln Board of Trade v. Union Pacific R'y Co. et aL, 2 I. C. C, 229. . . .' 69,93 Lincoln Board of Trade v. Union Pacific R'y Co. et al., 3 L C. C, 221 , . . . . . Lippman et al. v. Illinois Central R R Co. et al., 2 L C. C, 584 . 18, 23, 33, 37, 44 Little Rock & Memphis R R Co. v. East Tennessee, "Virginia & Georgia R R Co. et al., 3 L C. C, 1 7, 24 TABLE OF OASES. Sill little Eock & Memphis R R Co. v. St L., L M. & S. R'y Co., 41 Fed. Rep., 559 . 7 Logau et ai v. Chicago & Northwestern R'y Co., 2 t C. C, 604 . 12, 17, 64,92 Louisville & Nashville R R Co., In re Petition of, 1 L C. C, 31 . 20, 31, 36, 39, 42, 43, 44, 45 Manufacturers' and Jobbers' Union of Mankato v. Minneapolis & St Louis R'y Co. et al., 1 1. C. C, 227 69 Manufacturers' and Jobbers' Union of Mankato v. Minneapolis & St Louis R'y Co., 4 I. C. C. (3 I. C, 115) . . . . 9, 21, 36, 93 Martin et ai v. Chicago. Burlington & Quincy R R Co. et al., 2 LC. C, 25 6,18,22,25,34,37,39,44 Martin et al. v. Southern Pacific R'y Co. et al., 2 L C. C, 1 12, 13, 14, 24, 29, 30, 38 Mattingly v. Pennsylvania Co., 3 1. C. C, 592 . . 5, 7, 24 McMillan v„ Western CI. Com., 4 I. C. C. (3 I. C, 282) . . 66, 68, 87, 88 McMorran et al v. Grand Trunk R'y Co. of Canada et al., 3 I. C. C, 252 . 12, 13. 24, 29, 64, 65, 92 Michigan Cent R R Co. v. Chicago & Grand Trunk R'y Co. (see Larrison v. Same). Michigan Congress Water Co. of Chicago v. Grand Trunk R'y Co. et aL, 2 I. C. C, 594 68, 86 Millers' Ass'n of St Louis, In re, 1 1. C. C, 20 7, 34 Milwaukee Chamber of Commerce v. F. & P. M. R. R Co., 2 I. C. C, 553 20,23,34,35,37 Missouri & Illinois R R Tie and Lumber Co. v. Cape Girardeau & Southwestern R'y Co., 1 1 C. C, 30 . . ' . . '. 5 Missouri Pac. R'y Co. v. Tex. Pac. R'y Co., 31 Fed. Rep., 862 . . 42, 43 Myers v. Pennsylvania Co. et al., 2 I. C. C, 573 . . . . 17, 22 Myers v. Pennsylvania Co. et aL, 3 I. C. C, 130 . . . . 69, 96 New Jersey Fruit Exchange v. Central R R. of New Jersey et al., 2 I. C. G, 142 5 New Orleans Cotton Exchange v. Cincinnati, New Orleans & Texas Pacific R'y Co. et al., 2 I. C. C, 375 .. . 5, 9, 19, 68, 86 New Orleans Cotton Exchange v. Illinois Central R R Co. et al., 3 L C. C, 534 (with New Orleans Cotton Ex. v. Cin., N. O. & T. Pac. R'y Co. et al.) . . . . 9, 14, 15, 21, 22, 23, 26, 37, 45 New Orleans Cotton Exchange v. L, N. O. & T. P. R R Co., 4 L C, C. (3 I. C, 523) ... 69, 93 New York -Board of Trade et al v. Pennsylvania R R. Co. et al., 4 I. C. C. (3 1 C, 417) . . 4, 11, 12, 13, 16, 26, 29, 30, 33, 49, 65, 92 New York & Northern R R Co. v. N. Y., New Eng. & H. R R Co., 4 L C. C. (3 I C, 542) 41 XIV TABLE OF CASES. New York Produce Exchange V. New York' Central & Hudson River E. R Co. et aL, 3 I. C. C, 137 31, 48 Nicolai v. Penn. R R. Co. et aL, 1LO. C, 130 (see Brady v. Same). Order of Railway Conductors, In re Petition of, 1 1 C. C, 8 6, 67, 93 Oregon Short line R'y Co. v. Northern Pacific R R Co., 3 L C. C, 264 ' . . .7.0,89 Oregon Short Line R'y Co: v. Northern Pacific R R Co. (U. S. C. Ct D. Or.), 3 I. C. C., 205 J 41 Ottinger v. Southern Pacific R R Co., 1 L C. C, 144 . .3, 65, * 69, 87 Pankey v. Richmond & Danville R R Co. et aL, 3 I. C. C, 658 . 6, 21, 26, 39, 54 Passenger Tariffs and Rate Wars, In re, 2 I C. C, 513 . . 3, 35, 38 Passenger Tariffs, In re, 2 L C. C, 649 24, 34 Peasley, In re, 44 Fed. Rep., 271 71 Pennsylvania Company v. Louisville, New Albany & Chicago R'y Co., 3 1. C. C, 223 . 68,69,93 Pittsburgh, Cincinnati & St Louis R'y Co. v. Baltimore & Ohio R R Co., 3 I. C. C, 465 30, 34, 48, 81, 86 Poughkeepsie Iron Co. v. New York Central & Hudson River R R. Co., 4 1. C. C. (3 L C, 248) . . . . . 3, i6, 23, 37, 65 Procedure in Cases at Issue, In re, 1 1. C. C, 223 62, 64, 66, 70, 89, 91, 92, 94 Procedure Concerning Questions of Law, In re, 1 1. C. C, 224 . 66, 89 Proctor & Gamble v. Cincinnati, Hamilton & Dayton R. R Co. et aL, 4 I. C. C. (3 I. C, 131) 13, 29 Proctor & Gamble v. Cincinnati, Hamilton & Dayton R R Co. et aL, 4 I. C. C. (3 I. C, 374) ...... 1, 69, 96 Produce Exchange of Toledo, In re Petition of, 2 L C. C, 588 21, 36, 69,96 Providence Coal Co. v. Providence & Worcester R R Co., 1 L C. C., 107 \ . . . , .10,27 Pyle et aL v. East Tennessee, Virginia & Georgia R'y Co., 1 1. C. C, 465 . . . . 11, 13, 29, 31 Railway Conductors, In re Order pf, 1 1. C. C, 8 . . . 6, 67, 93 Rawson v. Newport News & Mississippi Valley R R Co. et aL, 3 I. C. C, 266 . 6, 68, 69, 81, 93 Raymond v. Chicago, Milwaukee & St. Paul 'R'y Co., 1 1. C. C, 230 14, 21, 31, 36 Reed v. Oregon Railway & Navigation Co., 1 L C. C, 325 (see Evans v. Same). ReLative Tank and Barrel Rates on Oil, In re, 2 L C. C, 365 . . 22, 25, 26, 39 Rend v. Chicago & Northwestern R'y Co., 2 I. C. G, 540 . . 15, 17, 18, 33, 43 TABLE OF CASES. XV Reynolds v. Western New York & Pennsylvania E'y Co., 1 1. C. C, 347 63, 90 Reynolds v. Western New York & Pennsylvania R'y Co. et al., 1 L C. C, 393 10, 13, 29, 63 Rice v. A., T. & S. F. R R Co., 4 I. C. C. (3 I. C, 263) . . 15, 18, 43 Rice v. Cin., N. O. & T. Pac. R'y Co., 11 C. C, 503 (see Same v. Louisville & Nashville R R Co.). Rice v. Cin., N. O. & T. Pac. R'y Co. et al. (2d Case) (see Same v. Louisville & Nashville R R Co.). Rice v. Cin., Wash. & BaL R R Co. et al., 3 I. C. C, 186 (with Rice v. Cin., Wash. & Bal. R R Co. et. al. (2d Case), 3 1. C. C, 186) 62, 70, 95 Rice v, ILL Cent. R R. Co., 1 1. C. C, 503 (see Sams v. Louisville & Nashville R R Co.). Rice v. Louisville & Nashville R R Co., 1 1. C. C, 503 . . . 25, 33, 39 Rice v. Louisville & Nashville R R. Co., 310. C, 186 (see Same v. Cin., Wash. & BaL R R Co.). Rice v. Miss. & Tenn. R R Co., 1 L C. C, 503 (see Same v. Louis- ville & Nashville R. R. Co.). Rice v. Mobile & O. R R Co., 1 L C. C, 503 (see Same v. Louis- ville & Nashville R R. Co.). Rice v. Newport News & Miss. V. R R Co. et al, 1 L C. C, 503 (see Same v. Louisville & Nashville R R. Co.). Rice v. Newport News & Miss. V. R R Co. and 11L Cent R R Co., 1 1. C. C, 503 (see Same v. Louisville R R Co.). Rice v. St Louis, Iron Mt. & S. R'y Co., 1 1 C. C, 503 (see Same v. Louisville & Nashville R R Co.). Rice et al. v. Western N. Y. & Perm. R R Co., 2 I. C. C, 389 . 16, 26 Rice et al. v. Western N. Y. & Penn. R R Co., 3 I. C. C, 87 66, 69, 85, 96 Rice et al v. Western N. Y. & P. R R Co., 4 1 C. C. (3 1 C, 162) 25, 36, 39 Riddle et aL v. Baltimore & Ohio R R Co., 11 C. C, 372 . . 64, 90 Riddle et aL v. Baltimore & Ohio R R Co., 1 1 C. C, 608 . . 33 Riddle et aL v. New York, Lake Erie & Western R R. Co. et al., 1 I C. C, 594 31, 35 Riddle et al v. New York, Lake Erie & Western R R Co. et al., 39 Fed. Rep., 290 (3 1 C, 290) 55 Riddle et al. v. Pittsburgh & Lake Erie R R Co., 1 1. C. C, 374. Riddle et al v. Pittsburgh & Lake Erie R R Co., 1 I. C. C, 490 . 68. 69, 86, 95 San Bernardino Board of Trade v. Atchison, Topeka & Santa Fe R R Co., 4 1 C. C. (3 I C, 138) . . . 45, 48, 65, 80, 87, 92 Sanger v. Southern Pacific Co. et aL, 3 I C. C, 134. Savery et al. v. New York Central & Hudson River R R Co. et aL, 21C. C, 338. . . r . . . 3,32,69,80,93 Scofleld et al v. Lake Shore & Michigan Southern R'y Co., 2 I. C. C, 90 25, 27, 31, 33, 39 XVI TABLE OF CA*ES. Shamberg v. Delaware, Lackawanna & Western R. R. Co., 4 L C. C. (3LC, 502) 35 Sidman v. Richmond & Danville R. R Co., 3 I. C. C, 512 . . 30, 79 Slater v. Northern Pacific R R Co., 2 I. C. C, 359 . 32, 70, 81, 93 Smith v. Northern Pacific R R Co., I. C. C, 208 . . .6, 36, 82 Soldders and Sailors, In re Disabled, 1 L C. C, 28 . . . . 67, 93 Southern Pacific R R Co., In re, 1 L C. C, 6 . .44, 67, 70, 88, 93 Spartanburg Board of Trade v. Richmond & Danville R. R Co. et al., 2 I. C. C, 304 12,64,68,86,92 Squire v. Mich. Central R R Co., 4 L C. C. (3 I. C, 515) . . 14, 17 Stone et al v. Detroit, Grand Haven & Milwaukee R'y Co., 3 L C. C.,613 . . . 2,27,32 St Louis Millers' Association, In re, 1 L C. C, 20 . . . . 7, 34 s Tank and Barrel Rates on Oil, In re, 2 I. C. C, 365 . 22, 25, 26, 39 Tariffs and Classifications of Atlanta & West Point R R Co., 3 L C. C, 19 11, 28, 66, 85 Tariffs of Columbus & Western R'y Co., In re, 1 1 C. C, 626 . 12 Tariffs of Trans-continental Line, In re, 2 I. C. C, 324 . . . 20, 48 Thatcher v. Delaware & Hudson Canal Co. et al., 1 1. C. C, 152 . 25, 38 Thurber et al. v. New York Central & Hudson River R R. Co. et al., 3 I. C. C, 473 10,12,16,27,28 Toledo, In re Produce Exchange of, 2 I C. C, 588 ' . 21, 36, 69, 96 Traders' and Travelers'Union, In re (see Order of Railway Con- ductors, In re). Traders' and Travelers' Union v. Phila. & Reading R R Co., 1 1. C. C, 122 7, 30, 80 Underbilling, In re, 1 1. C. C, 633 39 United States Commission of Fish & Fisheries, In re, 1 1. C. C, 21 8, 82 United States v. Egan, 46 Fed. Rep., . . 51, 56, 57, 67, 80, 81 United States v. CL, C. & Sou. R R Co., (U. S. C. Ct N. D. Ohio), . 8 L C. C, 290 32 United States v., Morsman, 42 Fed. Rep., 448 . . . . 4, 71 United States v. Mich. Cent R. R Co., 43 Fed. Rep., 26 . . 50, 56 United States v. D, L. & W. R'y Co., 40 Fed. Rep., 101 . . .7, 83 United States v. Tozer, 39 Fed. Rep., 369 38 Vermont State Grange v. Boston & L. R R. Co. et al. (see B. & A. R R Co. v. Same). Warner v. New York Central & H. R R. R. Co., 4 I. C. C. (3 I. G. 74) 10, 26, 63, 91 White v. Michigan Central R. R Co. et al, 3 L C. C, 281 . . 66, 89 Worcester Excursion Car Co. v. Pennsylvania R R Co., 3 L C. C, 577 . . . 7,35 TABLE OF SUBJECTS OP THE ACTION. BARB-WIRE : Iowa Barb Steel Wire Co., In re, 1 L C. C, 17. BITTERS : Myers v. Pennsylvania Co. et al., 2 I. C. C, 573. Myers v. Pennsylvania Co. et aL, 3 I. C. C, 130. BRIDGE : Kentucky & Indiana Bridge Company v. Louisville & Nashville R R Co., 2 I. C. C, 162. / CARS: ' Burton Stock Car Co. v. Chicago, Burlington & Quincy R R Co. . et al, 1 L C. C, 132. Holbrook et aL v. St Paul, Minneapolis & Manitoba R R. Co., 1 I. C. C, 102. Riddle et aL v. New York, Lake Erie & Western R R. Co. et al., 1 I. C. C, 594. Riddle et aL v. Pittsburgh & Lake Erie R. R Co., 1 1. C. C, 374. Worcester Excursion Car Co. v. Pennsylvania R R Co., 3 L C. C, 577. CARTAGE : Stone et aL v. Detroit, Grand Haven & Milwaukee R'y Co., 3 1. C. C, 613. CATTLE: Chicago, Rock Island & Pacific R'y Co. v. Chicago & Alton R R Co., 3 L C. C, 450. Keith et aL v. Kentucky Central R. R. Co., 1 1 C. C, 189. Leonard v. Chicago & Alton R R Co., 3 I. C. C, 241. Leonard v. Union Pacific R'y Co., 1 1. C. C, 185. Shamberg v. D., L. & W. R. R Co., 4 I. C. C. (3 I. C, 502). COAL: 1 Coxe et al. v. Lehigh Valley R R Co., 4 L C. C. (3 I. C, 460). Haddock v. Delaware, Lackawanna & Western R R Co.; 4 L C. C. (3 I C., 302). Heck et al. v. East Tennessee, Virginia & Georgia R'y Co. et al., 1 I. C. C.,495. b XV111 ' TABLE OF SUBJECTS. COAL — continued. Imperial Coal Company et al: v. Pittsburgh & Lake Erie R R Co. et al, 2 I. C. C, 618. Providence Coal Co. v. Providence & Worcester R E. Co., 1 1 C. G, 107. Rend v. Chicago & Northwestern R'y Co., 2 L C. C, 540. Riddle et aL v. Baltimore & Ohio R R Co., 1 L C. C, 608. COLORED PERSONS: Councill v. Western & Atlantic R R Co., 1 I C. C, 339. Heard v. Georgia R R Co., 1 1. C. C, 428. Heard v. Georgia R R Co., 3 L C. C, 111. COMPLAINTS (see Index) : Delaware State Grange of the Patrons of Husbandry v. New York, Philadelphia & Norfolk R R Co. et al, 2 L C. C, 309. CORN (see Grain ; Wheat) : Bates et al v. Pennsylvania R R Co. et al, 3 I. C. C, 435. Bates v. Pennsylvania R R Co., 4 I. C. C. (3 I. C, 296). Logan et al v. Chicago & Northwestern R'y Co., 2 I. C. C, 604. COTTON: Harwell et al v. Cplumbus & Western R R Co, et al, 1 1. C. C, 236- Lippman et al v. Illinois Central R..R Co. et al., 2 I. C. C, 584. New Orleans Cotton Exchange v. Cincinnati, New Orleans & Texas Pacific R'y Co. et al, 2 I. C. C, 375. New Orleans Cotton Exchange v. Illinois Central R R. Co. et al, 3 I C. C, 534 New Orleans Cotton Exchange v. L, N. O. & T. P. R R Co., 4 L C. C. (3 L C, 523). CRIMINAL PROSECUTION: Counselman, In re, 44 Fed. Rep., 268. Peasley, In re, 44 Fed. Rep., 271. EMIGRANTS: Elvey v. Illinois Central R R Co., 3 I. C. C, 652. EXPRESS COMPANIES: Express Companies, In re, 1 L C. C, 349. FISH: Fish and Fisheries, In re United States Commission of, 1 L C- C, 21. FOOD PRODUCTS : Food Products, In re Alleged Excessive Freight Rates and Charges on, 4 L C. C. (3 I. C, 93). Food Products, Rates and Charges on, 4 I. C. C. (3 I. C, 151). FOREIGN RAILWAYS : Grand Trunk Railway Company of Canada, In re, 3 L C. C, 89. TABLE OF SUBJECTS. ■ XIX FRUIT — Fresh: Bishop v. Duvall, Receiver of the Florida R'y and Nav. Co., 3 L C. C, 128. Boston Fruit and Produce Exchange v. New York & New England R R Co., 4 I. C. C. (3 I. C, 493). Delaware State Grange v. N. Y., P. & N. R R Co., 4 I. C. C. (3 L C, 554). New Jersey Fruit Exchange v. Central R R of New Jersey et al, 2 I. C. C, 143. FRUIT — Dried: | Little ftock & Memphis R. R Co. v. East Tennessee, Virginia & Georgia R R Co. et al., 3 1 C. C, 1. Martin et al v. Southern Pacific R. R Co. et al, 2 1 C. C, 1. GRAIN (see Wheat; Corn): Allen et aL v. Louisville, New Albany & Chicago R R Co., 1 L C C, 199. Detroit Board of Trade et al v. Grand Trunk R'y of Canada et al, 2 I. C. C, 315. Export Trade of Boston, In re, 1 1. C. C, 24. McMon-an et al. v. Grand Trunk R'y Co. of Canada et al., 3 I C. C, 352. HOG AND HOG PRODUCTS : Chicago Board of Trade v. Chicago & Alton R. R. Co. et al, 4 I. C. C. (3LC, 233). Squire et al v. Michigan Central R. R Co. et al, 4 1 C. C. (3 L C, 515). HUB-BLOCKS : Hurlburt v. Lake Shore & Michigan Southern R'y Co., 2 L C. C, 122. IMMIGRANTS : Savery et al. v. New York Central & Hudson River R R Co. et al, 2 L C. C, 338. INDIAN SUPPLIES : Indian Supplies, In re, 1 L C. C, 15. IRON: JPoughkeepsie Iron Co. v. New York Central & Hudson River R R Co., 4 L C. C. (3 1 C, 248). LUMBER: Farrar et al. v. East Tennessee, Virginia & Georgia R'y Co. et al, 1 I. C. C, 480. James et al. v. East Tennessee, Virginia & Georgia R'y Co. et al, 3 I. C. C, 235. XX TABLE OE SUBJECTS. MEDICINES : Warner v. New York Central R R Co., 4 L C. C. (3 L C, 74). MERCHANDISE : Boston Chamber of Commerce v. Lake Shore & Michigan Southern R'y Co., 1 L C. C, 436. MILK: Chicago, M. & St P. R'y Co. v. State of Minn., 134 U. S. Sup. Ct, 418. Howell et al. v. New York, Lake Erie & "Western R R Co. et ai, 2 I. C. C, 272. MINERAL WATER: Michigan Congress Water Co. of Chicago v. Grand Trunk R'y Co. et aL, 2 I. C. C, 594 PASSES: Ex parte Koehler, 31 Fed Rep., 315. Griffee v. Burlington & Missouri River R R. Co. in Nebraska, 2 I C. C, 301. Order of Railway Conductors, In re Petition of, 1 L C. C, 8. Slater v. Northern Pacific R R Co., 2 I. C. C, 359. Soldiers and Sailors, In re Disabled, 1 L C. C, 28. PETROLEUM: Brady et aL v. Pennsylvania R R Co. et al, 2 L C. C, 131. Hays v. Penn. Co., 12 Fed. Rep., 309. Relative Tank and Barrel Rates on Oil, In re, 2 I. C. C, 365. Rice v. A, T. & S. F. R R Co., 4 L C. C. (3 L C, 263). Rice v. Cincinnati, Washington & Baltimore R'y Co., 3 I. C. C, 186. Rice v. Louisville & Nashville R R Co., 1 L C. C, 503. Rice et al v. Western New York & Pennsylvania R R Co., 2 L C. C, 389. Rice et al v. Western New York & Pennsylvania R'y Co., 3 1. C. C, 87. Scofield et al v. Lake Shore & Michigan Southern R'y Co., 2 1. C. C, 90. PRACTICE (for additional cases, see section 13) : Oregon Short Line R'y Co. v. Northern Pacific R R Co., 3 L C. C, 264. Procedure in Cases at Issue, In re, 1 L C. C, 223. Procedure Concerning Questions at Law, In. re, 1 1. C. C, 224. Proctor & Gamble v. Cincinnati, Hamilton & Dayton R R Co. et al., 4 L C. C. (3 I. C, 374). Rawson v. Newport News & Mississippi Valley R R Co. et al, 3 I. C. C, 266. Reynolds v. Western New York & Pennsylvania R'y Co., 1 I. C. C, 347. Riddle et al v. Baltimore & Ohio R R Co., 1 L C. C, 373. Riddle et al v. Pittsburgh & Lake Erie R R Co., 1 1. C. C, 490. TABLE OF SUBJECTS. XXI RATES — In General: Business Men's Association of the State of Minnesota v. Chicago, St. Paul, Minneapolis & Omaha E'y Co., 2 L C. C, 52. Chicago, M & St. P. R R Co. v. State of Minnesota, 134 U. S., 4ia Chicago, St Paul & Kansas City R'y Co., In re, 2 L C. C., 231. Clark, F. "W., General Freight Agent of Seaboard Air Line, In re, 3 I C. C, 649. Fulton v. Chicago, St Paul, Minneapolis & Omaha R R Co.. 1 L C. C, 104 Lincoln Board of Trade v. Burlington & Missouri River R R. Co. in Nebraska et aL, 2 L C. C, 147. Little Rock & M. R R- Co. v. St L., L M & S. R'y Co., 41 Fed. Rep., 559. Thurber et al v. New York Central & Hudson River R R Co. et aL, 3 L C. C, 473. United States v. Tozer, 39 Fed. Rep., 369. RATES — 'Relative : Business Men's Association of the State of Minnesota v. Chicago & Northwestern R'y Co., 2 L C. C, 73. Crews et aL v. Richmond & Danville R R Co., 1 L C. C, 401. Hamilton et aL v. Chattanooga, Rome & Columbus R R Co. et aL, 4 L C. C. (3 L G, 482). La Crosse Manufacturers' and Jobbers' Union v. Chicago, Milwau- kee & St. Paul R'y Co., 1 L C. C, 629. Lincoln Board of Trade v. Missouri Pacific R'y Co., 2 L C. C, .155. Lincoln Board of Trade v. Union Pacific R'y Co. et al, 2 L C. C, 229. Manufacturers' and Jobbers' Union of Mankato v. Minneapolis & St. Louis R'y Co. et aL, 1 L C. C, 227. Manufacturers' and Jobbers' Union of Mankato v. Minneapolis & St Louis R'y Co., 4 L C. C. (3 L C, 115). Produce Exchange of Toledo, In re Petition of, 2 L C. G, 588. San Bernardino Board of Trade v. Atchison, Topeka & Santa Fe R R Co., 4 L C. C. (3 L G, 138). Spartanburg Board of Trade v. Richmond & Danville R R Co. et aL, 2 L G C, 304. RATES — Through : Oapehart et al v. Louisville & Nashville R R Co., 4 I. C. C. (3LG, 278> New York & Northern R R Co. v. N. Y, New Eng. & H R R Co., 4 L C. G (3 L C, 542). New York Board of Trade et aL v ; Pennsylvania Co. et aL, 4 L C C. (3 L G, 417). New York Produce Exchange v. New York Central & Hudson River R. R Co. et aL, 3 L G G, 137. XXII TABLE OF SUBJECTS. RELIEF FROM SECTION 4: Louisville & Nashville R R Co., In re Petition of, 1 1. C. C, 31. Pankey v. Richmond & Danville R R Co. et al, 3 L C. C, 658. Southern Pacific R R Co., In re, 1 1. C. C, 6. SOAP: Andrews Soap Co. v. Pittsburgh, Cincinnati & St Louis R. R Co., 4 I. C. C. (3 I. C, 77). Beaver v. P., C. & St. L R'y Co., 4 I. C. C. (3 I. G, 564). Proctor & Gamble v. Cincinnati, Hamilton & Dayton R. R. Co. et al., 4 I. C. C. (3 I. C. 131). Pyle et al. v. East Tennessee, Virginia & Georgia R'y Co., 1 L C. C, 465. STATE ROADS: v Mattingly v. Pennsylvania Co., 3 I. C. C, 592. SUGAR: Lehmann et al. v. Southern Pacific R R. Co., 4 L C. C. (3 1 C, 80). TARIFFS: Atlanta & West Point R. R. Co. et al., In re Tariffs and Classifications, 3 I. C. C, 19. Boston & Albany R R. Co. v. Boston & Lowell R. R Co. et al, 1 I. C. C, 158. Columbus & Western R'y, In re the Tariffs of, 1 1. C. C, 636. Export Tariffs, In re Publication of, 1 1 C. C, 658. Joint Tariffs. In re Publication of, 1 1. C. C, 5. Joint Tariffs, In re Filing of, 1 I. C. C, 657. Joint Tariffs and Schedules, In re, 1 1. C. C, 225. Joint Water and Rail Lines, In re, 2 I. C. C, 645. Passenger Tariffs and Rate Wars, In re, 2 I. C. C, 513. Passenger Tariffs, In re, 2 I. C. C, 649. Tariffs of Columbus & Western R'y Co., In re. 1 I. C. C, 626. Tariffs of Trans-continental Lines, In re, 2 I. C. C, 324. TICKETS : l Associated Wholesale Grbcers of St. Louis v. Missouri Pacific R'y Co., 1 I. C. C, 156. Chicago & Alton R R Co. v. Pennsylvania R R Co., 1 1. C. C, 86. Interstate Commerce Commission v. Baltimore & Ohio R R Co., 43 Fed. Rep., 37. . Larrison v. Chicago & Grand Trunli R'y. Co., 1 I. C. C, 147. Ottinger v. Southern Pacific R R Co., 1 I. C. C, 144. Pennsylvania Company v. Louisville, New Albany & Chicago R'y Co., 3 L C. C, 223. Pittsburgh, Cincinnati & St Louis R'y Co. v. Baltimore & OhioR R. Co., 3 1 C. C, 465. TABLE OF SUBJECTS. XX1U TICKETS — continued. Sanger v. Southern Pacific R R Co. et al., 3 L C. C, 134 Sidman v. Richmond & Danville R R Co., 3 I. C. C, 512. Smith v. Northern Pacific R R Co., 1 1. C. C, 208. United States v. Egan, 46 Fed. Rep., • — . TIES: Jackson v. St. Louis, Arkansas & Texas R'y Co., 1 1. C. C, 184 Missouri & Illinois R R Tie and Lumber Co. v. Cape Girardeau & Southwestern R'y Co., 1 L C. C, 30. Reynolds v. Western New York & Pennsylvania R'y Co. et al., 1 I C. C, 393. TRADE CENTERS: Martin et al. v. Chicago, Burlington & Quincy R R Co. et al, 2 LC. C, 25. UNDERBILLING: Underbilling, In re, 1 1. C. C, 633. WHEAT AND WHEAT PRODUCTS : Boards of Trade Union 'of Farmington, etc., v. Chicago, Milwaukee & St Paul R'y Co., 1 L C. C, 215. Chamber of Commerce of the City of Milwaukee v. Flint & Pere Marquette R. R Co. et aL, 2 L C. C, 553. Evans v. Oregon Railway & Navigation Co., 1 1. C. C, 325. Kauffman Milling Co. v. Missouri Pacific R'y Co. et al., 4 L C. C. (3 I C, 400). King et al. v. New York, New Haven & Hartford R R Co., 4 1 C. C. (3 I. C, 272). Raymond v. Chicago, Milwaukee & St. Paul R'y Co.. 1 L C. C, 230. St. Louis Millers' Association, In re, 1 I. C. C, 20. Thatcher v. Delaware & Hudson Canal Co. et al., 1 L C. C, 152. White v. Michigan Central R R Co. et al., 3 I C. C, 281. THE INTERSTATE COMMERCE LAW. Section 1. A. JURISDICTION. Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or . partly by railroad and partly by water when both are used, under a common con- trol, management, or arrangement, for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transship- ment, or shipped from a foreign country to any place m the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country : Provided, however, That the provisions of this act shall not apply to the transportation of passengers or prop- erty, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid. The term " railroad " as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease ; and the term " transporta- tion " shall include all instrumentalities of shipment or car- riage, l 2 THE INTERSTATE COMMERCE LA"W. [SEC. 1. Act for the benefit of the public. — Congress was legis- lating for the benefit of the public and .not for the protec- tion of carriers, and the Commission has no power to cause a rate to be increased, even when unreasonably low. In re C, St P. & K. 0. E'y Co., 2 I. C. C, 231. Stone et aL v. Defc, G. H. & M. R'y Co., 3 L C. C, 613. " Arrangement" in first section construed. — The word " arrangement " as used in the first section of the act is qualified by the word " common," and is not limited to cases where the control of a through line is centered in a single source of authority, but may extend to different carriers, which have combined their several lines, and have provided for the reception, carriage and delivery of through traffic, and such business is plainly within the scope of the act to regulate commerce. Boston Fruit & Produce Exch. v. N. Y. 4N.ERR Co., 4 L C. C. (3 L C, 493). Attorneys' fees. — The Commission is not authorized to award attorneys' fees, which may be given by a court under the eighth section of the act. Councill v. W. & A. R. R Co., H C. C, 339. Authority to inquire.— The, Commission has authority and it is its duty to inquire into the management of the business of carriers, and to require the attendance of wit- nesses and the production of books and papers. In re Rates and Charges on Food Products, 4 L, C. C. (3 L C, 151). Under the direction of a senate resolution, the Commis- sion investigates charges against carriers as to alleged ex- cessive charges on food products from sections east of the Eocky Mountains and the eastern distributing centers. Food Products, Rates and Charges on, 4 I. C. C. (3 I. C, 93). Carriage at a loss. — Carriage below cost and which im- poses a burden upon like traffic, at other points, and upon other traffic, is illegitimate. Lehmann et al v. Cen. Pac. R. R. Co., 4 I. C. C. (3 I. C, 80). Sec. 1.] a. jurisdiction. 3 Carriers de facto. — The Kentucky & Indiana Bridge Company has the chartered powers of a common carrier, and is such de facto. It is therefore under the control of the Interstate Commerce Commission. Ky. & Ind. Bridge Co. v. L. & N. R R Co., 2 I. C. C, 162. But see same case in 37 Fed Rep., p. 567, where, in the United States circuit court, on a somewhat different state of facts presented, a contrary decision was rendered. Carriers not parties. — The Commission has no power to order carriers, not parties to the proceeding, to raise their rates on a given commodity. Poughkeepsie L Co. v. N. Y. Cen. & H. R R R Co., 4 I C. C. (3 L C, 248). Cases prior to act. — A complaint of unjust discrimina- tion cannot be made to embrace cases which occurred before the act was passed, even though similar. Ottinger v. Sou. Pac. R R Co., 1 L C. C, 144 Collateral inquiry not determined. — Evidence intro- duced at hearing, for the single purpose of proving the just- ness or unjustness of a rate, will not" be considered, except as to its bearing on that question. Business Men's Assoc'n of" Minn. v. C. & N. W. E'y Co., 2 I C. C, 73. Emigration (immigration). — The Commission has no authority to control or interfere with the commissioners of emigration. Savery v. N. Y. Cen. & H. R R R Co., 2 L C. C, 338. Excursion and mileage tickets. — It appearing that the exception in the twenty-second, section of the act seems to be supposed by railway companies to allow the companies, to issue almost anything which they see fit to designate an excursion ticket, the Commission recommends an amend- ment to the act defining this term and so restricting, their issue in interstate commerce as to prevent these abuses. In re Pass, and Rate Wars, 2 L C. C, 513. Ex parte application. — Whether railroad companies ought to grant a particular special privilege which would 4 THE INTERSTATE COMMERCE LAW. [Sec. 1. not be illegal, the Commission will, not undertake to say on an ex parte, application. In re Iowa Barb Wire Co., 1 1. C. C, 17. Express companies within tlie act. — Express companies conducted as a branch of the business of the railroad com- pany are subject to the act. But express companies con- ducted by an independent organization and acquiring rights of transportation by contract are not within the act. In re Express Companies, 1 1 C. C, 849. United States v. Morsman, 42 Fed. Rep. 448, Foreign carriers.-?- The act applies to foreign carriers engaged in the transportation of passengers or property for a continuous carriage from a point in the United States to a place in any adjacent foreign country. In re Investigation Grand Trunk R. R. Co., 3 L C. C, 89. The act applies also to the transportation of property, on a through bill of lading, from a foreign port of shipment to a port of entry of the United States or of a foreign country and thence transported to a place within the United States. But such regulation extends only to that portion of the journey from the port of entry to destination. N. Y. Board of Trade v. Penn. R. R Co. et al., 4 I. C. C. (3 I C, 417). Immigration. — See Emigration, supra. Impairing validity of contracts. — Commission abstains from expressing any opinion as to whether the effect of the act is to impair the obligation of a contract made by a car- rier with itself whereby the price of hauling its own coal shall be fifty per cent, of its ordinary rate. . Haddock v. D., L. & W. R R Co., 4 I C. C. (3 I. C, 302). Instrumentalities. — A short road within a state owned and operated by an interstate railroad as a means of con- ducting interstate commerce is one of the facilities and in- strumentalities of interstate commerce and is subject to the act. Heck et aL v. Eaat Tenn., Va. & Ga. R'y Co. et al, 1 1. C. C, 495. When a state carrier engages in interstate commerce it Sec. l.J a. jukisdiction. 5 becomes a national instrumentality for such purpose, and is subject to the act. Mattingly v. Perm. Co., 3 I C. C, 592. Intention of shipper. — Intention of shipper to further transport beyond the state where traffic originates does not bring such traffic within the act, when it is in fact shipped to a point within the state. Mo. & L R T. & L. Co. v. C. G. & & R'y Co., 1 1. C. C, 30. Interstate commerce, what is. — Commerce between points in the same state, but which in passage is : carried through another state, is interstate commerce. New Orleans Cotton Exchange v. C, N, O. & T. Pao. R E. Co., 21 C. p., 375. Intrastate commerce. — The proviso in the first section of the act only excludes purely internal commerce, which begins and ends within the state and is confined within its limits. Mattingly v. Penn. Co., 3 L C. C, 592. Traffic originating in New Jersey and destined to New York city, but which is delivered to the consignee at Jersey City, to which latter point the rates' are made, is not inter- state commerce. N. J. Fruit Ex. v. Cen. R R of N J., 2 L C. C, 142. Eoads located wholly within a state, which exchange traffic and give through bills of lading, with connections outside the state, should file tariffs of such traffic with the Commission. In re Filing of Joint Tariffs, 1 L C. C, 657. Joint rates cannot be compelled. — See Poweb to com- pel JOINT BATES, post. Jurisdiction over intrastate roads. — See Inteestate commeece, supra. Liberal construction.— The act is highly remedial in its purpose and should be given a liberal construction, with the object of making the beneficial result desired by con- gress operative to the greatest available ex-tent. In re Express Companies, 1 1 C. C, 349. 6 i TfiE INTERSTATE COMMERCE LAW. [SEC. 1. / Money damages. — The claim for pecuniary damages in excess of $20 presents a case at common law in which the defendants are entitled to a jury trial, and cannot be en- tertained by the Commission. Councill v. W. & A. E. E Co., 1 L C. C, 339. Heck v. East Tenn., Va. & Ga. E R Co., 1 L C. C, 495. Brady v. Perm. E E. Co., 2 I C. C, 131. Note. — For, case where reparation was awarded, see Pankey v. E. & D. E E Co., 3 1. C. C, 658. Pending proceedings. — The amendment to section 22 expressly provides that the act shall not affect pending pro- ceedings. The remedy in such cases is in the courts. Eawson v. N. N. & Miss. V. E. E Co., 3 I. C. C, 266. Personal interest. — One may complain on public grounds of a violation of the act which amounts to a public griev- ance, without having any personal interest whatever to be affected by the violation, except as one of the public. B. & A. E E. Co. v. B. & L. E E Co., 1 L C. C, 158. Martin et aL v. C, B. & Q. E. E. Co. et aL, 2 L C. C, 25. But a charge of violation of fourth section, by carrier who has no interest in the charges, and no public interest in the matter, cannot be sustained. B. & A. E E Co. v. B. & L. E R Co., 1 L C. 0, 158. Where complainant fails to prove a personal grievance in his case, but during the progress of the investigation a viola- tion of law is brought to the notice of the Commission, it will still retain the case and bring such violation to an end. Smith v. N. Pac. E E Co., 1 1. C. C, 208. Business Men's Assoc, v. C. & N. W. E'y Co., 2 L C. C, 73. Power to compel carrier to give special privileges. — Where carrier is in doubt as to its right under the act to give special privileges, it should not apply to the Commis- sion for advice, but should in the first instance determine the question for itself. In re Pet. E'y Conductors, 1 1. C. C, 8. Commission has no power to compel railway companies Sec. 1.] a. jueisdiction. 7 to give commercial travelers permission to take an extra allowance of baggage without extra charge. Traders' & T. Union v. P. & R R R Co., 1 1. Q. C., 122. Nor has the Commission any power to compel railways to accord special rates to particular localities. Crews v. R & D. R R Co., 1 1. C. C, 401. La Crosse M.& J. TJ.v. C, M. & St. P. R R Co., 1 L C. C, 629. Nor to give special privileges to shippers. In re Iowa Barb Wire Co., 1 L C. C, 17. In re St Louis Millers' Assoc, 1 L C. C, 20. The Commission cannot compel carrier to receive com- plainant's patent stock car, he not being himself a common carrier. Burton Stock Car Co. v. C. t B. & Q. R R Co., 1 L C. C, 182. Nor can a railway be cdmpelled to haul private excur- sion cars. "Worcester Ex. Car Co. v. Penn. R R Co., 3 L C. C, 577. United States v. D., L & W. R'y Co., 40 Fed. Rep., 101. Power to compel carrier to raise rates — ■ Commission has no power to compel carrier to raise a rate because such rate, if continued, would be ruinous. In re C, St P. & K C. R'y Co., 2 L C. C, 231. Power to compel joint rates. — Commission cannot com- pel railroad companies to enter into joint arrangements with carriers by water. In re Joint Water & Rail Lines, 2 I. C. C, 645. Capehart et aL v. L. & N. R R Co., 4 L C. C. (3 I. C, 278). Nor can it compel them to enter into joint tariffs with other railroads. L. & M. R. R Co. v. E. Tenn., Va. & Ga. R R Co., 3 L C. C, 1. Mattingly v. Penn. Co., 3 L C. C, 592. C. & A. R R Co. v. Penn. R R Co., 1 L C. C, 86. Ky. & Ind. Bridge Co. v. L & N. R R Co., 37 Fed. Rep. 567. Nor does a court of equity have such power, either by common law or under the interstate commerce act. Little Rock & M. R R Co. v. St L., I. M. & S. R'y Co., 41 Fed. Rep., 559. 8 THE INTERSTATE COMMERCE LAW. [SEC. 1. Power to determine reasonable rates.-^-The act to reg- ulate commerce confers upon the Commission the power to , determine, and imposes upon the Commission the duty of determining, what are the reasonable rates whic'h the charges may not exceed, as well as what charges are unreasonable. Coxe et ai v. L. Valley R R Co., 4 L C. C. (3 X C, 460). Power to regulate commerce. — The power to regulate commerce among the states is absolute in congress, and may be regulated with reference to trade, conditions and circum- stances of localities. Kauffmann Milling Co. v. Mo. Pac. K. R Co., 4 L C. C. (3 L C, 400). Nor can it be limited or encroached upon by state author- - ity- Leonard v. C. & A. R. R Co., 3 I C. C, 241. v Special privileges; — See Power, etc., supra. State courts, no interference with. — When the ques- tion whether charges paid ought to be refunded has already been presented to and is still pending in a judicial tribunal, the Commission will not take cognizance of it. Bishop v. Duval, Receiver of F. R & N. R R Co., 3 L C. C, 128. ,Trackage rights. — The rights of a railroad company under a lawful agreement for a specified use of the tracks of another railroad company are measured by the terms of the contract, and the act to regulate commerce adds no au- thority for a different use. Alford v. C./R I. & P. R R Co., 3 I C. C, 519. United States contracts for Indian supplies.— Contracts for carriage of supplies to Indian agencies are within the twenty-second section of the act. In re Indian Supplies, 1 1. C. C, 15. United States Fish Commission within exception. — The United States Commission of Fish and Fisheries being one of the agencies of government, the transportation of fish and fish eggs so distributed falls within the twenty-second section of the act. In re United States Commission of Fisheries, 1 1. C. C, 21. SEC. l.J B. SEASONABLE BATES. 9 B. REASONABLE RATES. All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be un- lawful. Note. — The railway problem, as it is presented to our age, is one purely of rate-making. The problem will be solved when the ele- ments are found of a commodity rate which is absolutely, and at the same time relatively, reasonable and just Compare Chairman Cooley's Address before the third annual convention of State Eail- road Commissioners, held at Washington, D. C, March, 1891. Compare section 90, "English Railway Clauses Consolidation Act of 1845," Appendix. Aggregate charge. — Joint rates on long hauls usually, are, and as a rule should be, lower, in proportion to dis- tance, than local rates on short hauls of the same commod- ity- . Farrer v. E. Tenn., Va. & Ga. E'y Co., 1 1 C. C, 480. Aggregate charge increases with distance while rate per ton per mile decreases. — As a rule, in the transporta- tion of freight and passengers by railroads the aggregate charge increases with distance, while the rate per ton per mile decreases. The reason for the rule is mainly to be sought in terminal expenses and cost of carriage. Farrer v. E. Tenn., Va. & Ga. E'y Co., 1 L C. C, 480. Business Men's Assoc, etc., v. C, St. P., Minn. & O. R'y Co., 2 1. C. C, 52. Business Men's Assoc, etc., v. C. & N. W. E'y Co., S L C. C, 73. Lincoln Board of Trade v. Burl. & Mo. R R Co., 2 L C. C, 147. 1ST. O. Cotton Exch. v. C, N. O. & T. P. E'y Co., 2 1 C. G, 375. N. O. Cotton Exch. v. Di Cen. E E Co., 3 I C. C, 534. C, E L & P. E'y Co. v. C. & A. E. R Co., 3 I. C. C, 450. But see Manuf. & Jobbers' Union v. Minn. & St. L. E E Co., 4 L C. C. (3 1 C, 115). Amount df freight furnished. — An offer of discount to shipper, based merely on the amount of freight offered for shipment, is void, and, if such discount be not given to all 10 THE INTERSTATE COMMERCE LAW. [SeC. 1. shippers, regardless of quantity, is an unjust and unlawful discrimination. Providence Coal Co. v. P. & W. R R Co., 1 I. C. G, 107. Note. — Other considerations, as cost of carriage, speedy dispatch, etc., might change the rate. See, also, Thurber v. N. Y. C. & H. R R R Co., 3 L C. G, 473. Harvard Co. v. Penn. Co., 41. C. C. (3 I. C, 257). Kinsley v. B., N. Y. & P. R. R. Co., 37 Fed. Rep., 181. Hays v. Penn. R. R Co., 12 Fed. Rep., 309. Amount of through and local business. — In determin- ing what is a reasonable rate for a particular commodity, the Commission will consider, among other facts, the rela- tive amount of through and local business. Evans v. O. R'y & Nav. Co., 1IC. G, 325. Analysis of freight. — Carriers cannot be expected to make an analysis of freight and to classify according to actual, as compared with market, value. Warner v. N. Y, Cen. & H. R R. R Co., 4 L 0. G (3 L G. 74). Apportionment of rates. — The apportionment of rates to different parts of a through line does not determine the charge to the public, but may be significant on the ques- tion of reasonable rates for the whole distance. Brady et a! v. Penn. R. R Co., 2 L G G, 131. Arbitrary charges. — Eates cannot be arbitrarily charged in the mere discretion of a carrier ; they must be equitably adjusted with regard to public interests: Lehmann et al. v. Sou. Pac. R R Co., 4 L G C. (3 L G, 80). Attempt by carrier to affect market price. — Carriers are forbidden to attempt, by unreasonable rates, to prevent a producer of commodities to sell where he wishes, or in the best available markets. Reynolds v. W. N. Y. & P. R'y Co., 1 1. G G, 393. Basing-points. — The so-called " basing-point system " of rate making, which consists in the making of rates to local centers and making the rates to surrounding points by add- ing thereto the local rate from such basing-point to the SEC. 1.] B. KEASONABLE BATES. ^ 11 place of destination, is against public policy ; and, when it results in unjust discrimination against local points, is un- lawful. In re Tariffs and Class'ns of A. & W. P. R. R Co., 3 L C. C, 19. Hamilton et aL v. C. R & C. R R Co., 4 I. C. C. (3 I. C, 482). The practice of using two basing-points and giving to the shipper the benefit of the best rate is defective in that the carriers treat traffic intended to be continuous as consisting of two kinds of service. Hamilton et aL v. C. R & C. R R Co., 4 1 C. C. (3 I. O, 482). Bonded debt. — In fixing reasonable rates, the amount of the bonded debt of the carrier, is, among other facts," to be considered. In re Rates and Charges on Food Products, 4 I. C. C. (3 L C, 93). Breaking haul in two. — On a through and continuous line, carriers cannot escape responsibility for unjust charges by breaking haul in two, and calling themselves separate carriers. Brady v. Penn. R. R Co., 2 I. C. C, 131. In re Invest'n of G. T. R R Co., 3 I. C. C, 89. Bulk. — The greater bulk and value of a commodity does not justify a greater charge for a shorter distance, where the general commodity is placed by the carrier in the same class as that with which comparison is made. James et al. v. E. Term., Va. & Ga. R'y Co. et aL, 3 L C. C, 225. Pyle et aL v. E. Tenn., Va. & Ga. R'y Co. et aL, 1 1. C. C, 465. Harvard Co. v. Penn. R R Co., 4 L C. C. (3 I. C, 257). N. Y. Bd. of T. v. Penn. R R Co., 4 I. C. C. (3 I. C, 417). Burden of proof. — On complaint of excessive charge, the burden of proof as to such fact is upon the complain- ant. Fulton v. C, St. P., Minn. & O. R R Co., 1 1. C. C, 104 Where, after answer filed, plaintiff fails to appear, it will, be assumed that he is satisfied, and no order will be made. Jackson v. St. L., A. & T. R'y Co., 1 1. C. G, 184. 12 THE INTERSTATE COMMERCE LAW. [SeC. 1. "Where rates on defendant carrier's line are, on their face, excessive, the burden of showing the contrary is on the carrier. McMorran et al. v. G. T. R'y Co., 3 I. C. C, 252. Spartanburg Board of Trade v. R. & D. E..R.C0, 2 I. C. C, 304 A departure from the rule of equal mileage rates is not conclusive that such rates are unreasonable, but the burden of proof is upon the carrier. Logan et aL v. C. & N. W, R'y Co., 2 L C. C, 604 Articles classified alike are presumptively entitled to equal rates, and, if a difference is made, the carrier assumes the burden of sustaining such difference by evidence. McMorran et aL v. Q. T. R'y Co., 3 I C. C, 252. N. Y. Board of Trade, etc., v. Penn. R R. Co., 4 I C. C. (3 I. C, 417). See Classification, post. Car-load lots. — A difference between rates in car-load lots and less than car-load lots of the same merchandise between the same points of carriage is unjust; -and this is equally true of car-load lots from a single consignor and car-load lots from more than one consignor, or to a single consignee and to more than one consignee. Thurber v. N. Y. Cen. & a R R R Co., 3 L C. C, 473. The change from the practice of allowing shippers of cattle to load cars, irrespective of weight, at a fixed charge, to that of limiting the weight and charging for each addi- , tional hundred pounds, is proper. Leonard V. C. & A. R R Co., 3 I. C. C, 241. Carrier must adjust tariffs. — Carriers should bring their tariffs into conformity with the statute, without suggestions from the Commission as to details. In re Tariffs of Col. & W. R'y Co., 1 1. C. C, 626. v Martin v. Sou. Pac. R R Co., 2 I. C. C, 1. Carriage at a loss.— When the rate charged by a carrier is such as to impose a burden upon other traffic or upon like traffic to other points along the line, it is to be deemed destructive of competition, and is unlawful. Lehmann et aL v. Sou. Pac. R R Co., 4 I. C. C. (3 L C, 80). S EC - 1.] B. SEASONABLE BATES. 13 Character of commodity. — The character of the com- ' modity is one of the elements necessary to the determination of what is a reasonable rate. Imperial Coal Co. et al. v. P. & L. E. R R Co., 2 I. C. C, 618. Classification. — Classification of railroad ties should be the same as that of rough lumber, and a higher classification is unjustifiable. Reynolds v. W. N. Y. & P. R'y Co., 1 1. C. C, 393, Grades of soap, competitive in the market, should not be subjected to such differences of classification as to work an unjust discrimination, and, upon application, the Commission will determine the relation which such differences of classi- fication should bear to one another. Pyle et al. v. E. Tenn., Va. & Ga, R R Co. et al, 1 1. C. C, 465. Proctor et al. v. C. H. & D. R. R. Co., 4 I. C. C, (3 I. C, 131). Classification of articles of the same general character should be the same, and a difference in classification wprks an injustice to shippers, and is illegal. Martin et al v. Sou. Pac. R R Co., 2 L C. C, 1. Harvard Co. v. Penn. Co., 4 I. C. C. (3 L C. 257). Hurlburt v. L. S. & M. S. R'y Co., 2 I. C. C, 122. Beaver et al v. P. C. & St L. R'y Co., 4 I. C. C. (3 I. G, 564). Articles classified alike are presumptively entitled to equal rates, and if a difference is made the carrier assumes the burden of sustaining such difference by evidence. MoMorran et al v. G. T. R'y Co., 3 I. C. C, 252. N. Y. Board of Trade, etc., v. Penn. R. R Co., i I. C. C. (3 1. C. 417). Classification which makes differences, based upon car- load and less than car-load lots, on like commodities, over identical lines,' is unjust. See Car-load lots, supra. Where a previous classification and rate are not found to operate injuriously, a change which materially injures an important industry is not justifiable. Bates et al. v. Penn. R R Co., 3 I. C. C, 435. " Classification " is recognized by the Commission as nec- essary, but when used as a device to accomplish unjust 14 THE INTEKSTATE COMMEECE LAW. [SeC. I. discrimination it becomes the duty of the Commission to correct it. Coxe v. L. V. R R. Co., 4LC.C. (3.L 0., 460). Combination rates. — Rates obtained by combination, which produce a lower rate than the tariff calls for, are unjust.' Martin v. Sou. Pac. R R. Co., 2 L C. C, 1. Comparison of rates. — Other testimony is required than the mere comparison of rates between different localities, in order to establish the fact that the rate complained of is unreasonable. Raymond v. G, M. & St P. R'y Co., 1 L C. C, 230. Evans v. Or. R'y & Nav. Co., 1 I. C. Q, 325. Nor is jt sufficient to offer in comparison rates made by roads not within the jurisdiction of the act. Business Men's Assoc, etc., v. C, St. P., M. & O. R'y Co., 2 I. C. C, 52. Comparison of rates made under circumstances and condi- tions substantially dissimilar proves nothing. Business Men's Assoc, etc, v. C. & N. W. R'y Co., 2 I. C. C, 78. N. O. Cotton Exch. v. 111. Cen. R'y Co. et ai, 3 I. C. C, 534. La Crosse Manufacturers' & Jobbers' Union v. C, M. & St P. R'y Co., 1 1. C. C, 629. On the question of reasonable rates, the charges made on long lines and through rates cannot form a just basis for comparison with local rates for relatively short distances. Crews et al. v. R. & D. R. R. Co., 1 1. C. C„ 401. Rates must be relatively reasonable compared with other articles competitive in the same market. Squire v. Mich. Central R R Co., 4 I C. C. (3 L C, 515). Comparison of through routes. — See Comparison of bates, supra. Competition. — The fact that Boston is a competitor of New York on merchandise destined to coast-wise points east of Portland, and that west-bound through rates from Boston are made the same as those from New York, in order to place these cities on an equality, is not controlling SEC. 1.] B. SEASONABLE- BATES. 15 in the determination of the reasonableness of east-bound local rates from Boston, in which there is no competition. Bostpn Cham, of Com. v. L. S. & M. S. R R Co., 1 1. C. C, 436. Competition with water lines is a fact to be considered in the determination of what is a reasonable rate. N. O. Cotton Ex. v. IU. Cen. R R Co. et aL, 3 I. C. C, 534 Rice v. A., T. & St F. R R. Co. et aL, 4 I. C. C. (3 I. C, 263). Where competition with other railways results in elabo- rate tariffs, covering large areas, such tariffs will not be criticised by the Commission with a view to break down such competition. Business Men's Assoc, etc., v. C, St. P., M. & O. R R. Co., 2 I. C. G, 52. Competition between business men is' a fact to be consid- ered in determining what is a reasonable rate. Imperial Coal Co. et aL v. P. & L. E. R. R Co., 2 I. C. C, 618. Competition with other carriers by rail is also a fact to be considered. N. O. Cotton Exch., etc., v. IE Cen. R'y Co., 3 I. C. C, 534 See Water competition ; Long and short haul. Compressing cotton, cost of. — The cost of compressing cotton is a necessity in long rail shipments, and is a fact to be considered in determining what is a reasonable rate. N. O. Cotton Exch. v. 111. Cen. R R Co., 3 I C. C., 534 Confusion resulting from reduction of rates. — In the determination of what is a reasonable rate the fact that a reduction of the rate will produce great confusion in rates over large sections of the country is to be considered. Rend v. C. & N. W. R'y Co., 2 I. C. C, 540 s Lincoln Board of Trade v. Mo. Pac. R R. Co., 2 I. C. C, 155. Cost of production. — Cost of production is a fact to be considered in the determination of the question of what is a reasonable rate. Imperial Coal Co. v. P. & L. E. R R Co., 2 L C. C, 618. 16 THE INTERSTATE COMMERCE LAW. [Sec. 1. Transportation charges should have reasonable relation to cost of production. In re Food Products, 4 I. C. C. (3 1G, 93). Poughkeepsie Iron Co. v. N. Y. Cen. & H. R R R Co., 4 I. C. C. (3 L C, 248). Cost of service. — The expense to carrier in the trans- portation of freight and passengers is a fact to be consid- ered in determining what is a reasonable rate. Boston Chamber of Com. v. L. S. & M. S. R R Co., 1 1. C. C, 436. Rice et al. v. W. N. Y. & P. R R. Co., 2 L C. C, 389. Business Men's Assoc, etc., v. C. &; N. W. R'y Co., 2 L C. C, 73. Thurber v. N. Y. Cen. & H. R R R. Co., 3 I. C. Q, 473. Boston Fruit & Produce Exch. v. N. Y. & N. E. R. R Co., 4 L C. C. (3 I. C, 493). N. Y. Bd. of T. v. Penn. R. R. Co., 41. C. C. (3 I. G, 417). Distance. — Distance by shortest route is properly to be considered. Imperial Coal- Co. v. P. & L. E. R R. Co., 2 L C. C, 618. Distance, although not always controlling, is one of the best measures for determining what is a reasonable rate. James et al. v. E. Tenn., Va. & Ga. R'y Co. et al., 3 I. C. C, 225. Boston Chamber of Com. v. L. S. & M. S. R'y Co., 1 1. C. C, 436. Boston Fruit & Produce Exch, v. N. Y. & N. E. R R Co., 4 L C. C. (3 I. C, 493). Distance by shortest route is properly to be considered in determining the propriety of rates by a longer competing line. Lincoln Board of Trade v. Mo. Pac. R'y Co., 2 I. C. C, 155. Distance is not always controlling, especially in consider- ing' rates by through routes. In re Export Trade of Boston, 1 1. C. C, 24. Dividend on capital stock. — In determining what is a reasonable rate, the dividend on the capital stock of the carrier from the total traffic is, among other things, to be considered. In re Food Products (1st case), 4 I. C. C. (3 I C, 93). Division of through rates. — Shippers cannot justly de- mand that in all cases the rate on local shipments shall not SEC. 1.] B. EEASONABLE BATES. 17 be higher than the particular division of the through rate from distant points to the point of delivery. Rend v. C. & N. W. R'y Co., 2 I. C. C, 540. Empty cars. — Empty, cars and the want of return loads is also a fact to be considered. James et aL v. E. Term., Va. & Ga. R'y Co., 3 L C. C, 225. Boston Fruit & Produce Exch. v. N, Y & N. E. R R. Co., 4 I. C. C. (3 I. C, 493). Delaware State Grange, 'etc., v. N. Y., P. & N. R R. Co., 4 I. C. C. (3 I. C, 554). Evidence. — A carrier while long maintaining a rate, with- out the presence of competition, is making evidence that such rate is not too low. Logan et al. v. C. & N. W. R'y Co., 2 I. C. C, 604. Coxe v. L. V. R R Co., 4 L C. C. (3 I. C, 460). In re Food Products (Case No. 1), 4 L C. C. (3 I. C, 93). See Burden of proof, supra. A former special preferred rate is not a fair test of the reasonableness of a present rate. Myers v. Penn. Co., 2 I. C. C, 573. Fixed charges.— In determining what is a reasonable rate, the amount of fixed charges is a fact, among other things, to be considered. Coxe et aL v. L. V. R R. Co., 4LC.C. (31 C, 460). Former rates. — See Evidence, supra. Geographical situation. — Geographical situation of the terminal points is also to be considered. Boston Chamber of Commerce v. L. S. & M. S. R'y Co., 1 L C. C, 436. Detroit Board of Trade v. G. T. R'y Co., 2 I C. C, 315. It is not the province of the Commission to so fix rates as to overcome the advantages which one producer has over another arising from his geographical situation. Squire v. Mich. Central R R. Co., 4 L C. C. (3 I. C, 515.) 2 18 THE INTERSTATE COMMERCE LAW. [Sec. 1. Group rates. — Grouping of rates on products, such as milk and the like, over a larger extent of country, not shown to injure the producers, is not unjust. Howell et aL v. N. Y., L. E. & W. R R Co., 2 I. C. C, 273. Imperial Coal Co. v. P. & L, E. R R Co., 2 I. C. C, 618. Eend v. C. & N. W. R'y Co., 21. C. C, 540. Coxe et aL v. L. V. R. R-Co., 4 L C. C. (3 L C„ 460). See, also, Rice v. A.. T. & S. F. R R Co. et aL, 4 1. C. C. (3 I. C, 263). Initial expenses. — Additional expense in collecting milk at the initial point is a fact to be considered in connection with the determination of rates on that product. Howell v. N. Y., L. E. & W. R R. Co., 2, I C. C, 272. Knowledge of all facts necessary. — A question of rea- sonable rates cannot be properly decided without full knowl- edge of all the facts concerning the particular traffic in question, and its relation to the other traffic of the carrier. Howell v. N. Y, L. E. & W. R R Co., 2 I. C. C, 272. Length of haul. — See Distance, supra. Light traffic. — See Volume oe business, post. Local rates. — A railroad company is under special obli- gation to give reasonable rates for its local business, but many influences may affect its rates on through business which have no bearing" on local rates. Lippman v. HL Cen. R R Co., 2 I. C. C, 584. See Through bates, post. Low rates.— See Evidence, supra. Local and through rates defined.— Purely local rates are such as are made from station to station, and with some approximation to distance, and are never in railroad circles made use of in connection with rates for long distances, which are made in disregard of rates to and from numer- ous intermediate stations. Martin v. C, B. & Q. R R Co., 2 I. C. C, 25. Lumber. — See Classification, supra. SEC. l.J B. REASONABLE BATES. 19 Market cost: — Market cost is an element to be consid- ered in determining the question of what is a reasonable rate. Imperial Coal Co. v. P. & L. E R. R. Co., 2 I. C. C, 618. Mileage basis. — The mere fact that a carrier does not establish its rates upon a mileage basis does not make out their illegality. La Crosse Manuf rs, etc., v. C, M. & St. P. E'y Co., 1 1. C. C, 62ft See Through rates, post; and Burden of proof, supra. Milling in transit. — See Power to compel carrier to give special privileges, supra. Operating expenses. — The fact that operating expenses absorb nearly the entire earnings is to be considered in de- termining what is a reasonable rate, but it cannot justify excessive rates. N. O. Cotton Exch. v. C, N. O. & T. Pac. E'y Co., 2 I C. C, 375. Evans v. Oreg. E'y & Nav. Co., 1 L C. C, 325. Nor is a particular rate to be judged by a fixed standard. In re Food Products, 4 I. C. C. (3 I. C, 93). Other articles consumed. — In determining what is a reasonable rate the reductions made by the carriers on other articles consumed by the producers of the merchan- dise in question is to be considered. Evans v. Oreg-. E'y & Nav. Co., 1 L C. C, 325. Parallel lines owned by the same carrier. — Low charges upon one of two routes, operated by the same carrier, should not be made up by relatively high charges upon the other route. Farmington Board of Trade v. C, M. & St. P. E'y Co., 1 L C. G, 215. Popnlation along the line. — In determining what is a reasonable rate, the density of population along the line is a factor. Business Men's Assoc, of Minn. v. C. & N. W. R'y Co., 21. C. C, 73. Possible consequences of rate changes. — See Contusion resulting from reduction of rates, supra. 20 THE INTERSTATE COMMERCE LAW. [Sec. 1. Previous classification not injurious.— See Classifica- tion, supra. Prima facie rates. — Eates which are just and reasonable from selected manufacturing points throughout the entire territory east of the Missouri, and west of the Atlantic sea- board, are prima facie just and.reasonable from all other points in the same territory. In re Tariffs of Trans-continental Lines, 2 I. C. C, 824. See, also, Evidence, and Burden of proof, supra. Profitable rates not conclusive. — Proof that certain rates are very profitable to the road is not conclusive on the question of the reasonableness of such raf;e. Howell v. N. Y., L, E. & W. E. E Co., 2 I G C, 272. Proportion of through rate should be reasonable. — The difference between the proportions of through rates along the, same line should be fairly reasonable in amount, and so arranged as not to injure business in one locality in order that business may be stimulated in another locality. Chamber of Commerce of Mil. v. F. & P. M. E E Co., 2 I. C. C, 553. Proportion to local traffic. — In determining what is a reasonable rate for a particular commodity the proportion born« by the commodity in question to the remainder of the local traffic is to be considered. Evans v. Oreg. E'y & Nav. Co., 1 1 C. C, 325. Railroads must first fix rates. — The Commission will not fix rates in the first instance, but will leave it to car- riers to take the initiative. In re Louisville & Nashville E E Co., 1 1. C. C, 31. Rates made bjy connecting roads. — A carrier is not re- sponsible for rates made by a connecting road merely be- cause of its giving them in connection with its own rates to parties desiring to make through shipments. Crews v. E & D. E E Co., 1 1. C. C, 401. Rates relatively reasonable. — Eates must not only be reasonable in themselves, but they must be so relatively rea- Sec. l.J B. SEASONABLE BATES. 21 sonable as to protect communities and business against un- just discrimination. Farmington Board of Trade of Minn. v. C, M. & St. P. R'y Co., 1 I. C. C, 215. Raymond v. C, M & St P. R'y Co.,, 1LC. G, 230. Crews, etc., v. R. & D. R R Co., 1 1. C. C, 401. ^ Boston Chamber of Commerce v. L. S. & M. S. R'y Co., 1 I C. C, 436. Manuf 'rs' & Jobbers' Union, etc., v. Minn. & St L. R'y Co., 41 C. C. (3 I. C, 115). . In re Produce Exch. of Toledo, 2 I. C. C, 588. " Reasonable " and "just " defined. — The words "rea- sonable " and " just," as used in the statute, are relative terms. They do not mean that the rate on every railway line shall be the same, but {hey mean that such rates shall be the same in view of all the circumstances surrounding such traffic. N. O. Cotton Exch. v. Hi Cen. R R. Co., 3 I. C. C, 534 . Reasonable rates, how determined. — In the determina- tion of what is a reasonable rate upon a given commodity, the Commission will consider all ,the facts and circum- stances surrounding the traffic. The following factors have been already considered by the Commission, and such cases will be found noted under the headings,- hereinafter enu- merated : Amount of through and local: Population along the line. • business. Bonded debt. Bulk. Character op commodity. Comparison of rates. Competition. Cost of production. Cost of service. Distance. Dividend on capital stock. Empty cars. Fixed charges. Former rates. Geographical situation. Initial expenses. Market cost. Operating expenses. Other articles consumed. Possible consequences of rate changes. Prima facie rates. Proportion to local traffic. Rates relatively reasonable. Relative amount of through and local business. Return loads. Revenue. Risk, Special train service. Storage capacity. Unsettling of rates. Use to the public. Value- Volume OF BUSINESS. Weight. > 22 THE INTERSTATE COMMERCE LAW. [SeC. 1. Reasonable rates, a judicial question.— In the absence of legislative regulation carriers are entitled to charge rea- sonable rates ; and in such case it is for the courts to de- cide what is reasonable. C, M. & St. P. R'y Co. v. State of Minn., 134 IT. S., 418. Note. — As to whether the question of what is a reasonable rate is judicial or legislative, see an able paper by W. B. Fleming, Bail- way Commissioner of Kentucky, read before the third annual con- vention of State Railroad Commissioners, held at Washington, D. C, in March, 1891. Responsibility for through rates. — See Breaking haul in two, supra. Return loads.— The fact that carriers have, or have not, return loads, is to be considered in determining what is a reasonable commodity rate. In re Tank and Barrel Rates on Oil,.2 I C. G, 365. James v. E. Tenn., Va. & G. R. R. Co., 3 L C. C, 225. See, also, Empty cars, supra. Revenue. — -See Carriage at a loss, Risk. — In determining what is a reasonable rate, the amount of risk incurred by carrier during the transporta- tion is, among other facts, to be considered. N. O. Cot. Ex. v. HI. Cent. R R Co., 3 1. C. C, 534 Shipments by particular roads. — The shipper has a right to determine by what route he will have his shipments carried, and if such route is not used and he is charged a greater rate, he may have such overcharge refunded. Pankey v. R. & D. R R. Co., 3 I. C. C, 658. Similar articles.— Similar articles should be similarly .classified. Myers v. Penn. Co., 2 I. C. C, 573. Small and large towns. — It is not a ground of complaint against a railroad company that it equalizes its rates as be- tween small and large towns, although the effect of such equalization be prejudicial to the large towns, which before had been specially favored. Crews v. R & D. R R. Co., 1 I. C. C, 401. Martin et aL v. C, B. & Q. R. R Co., 2 L C. C, 25. SEC. 1.] B. EEASONABLE BATES. 23 Special train service. — The facts that the shipment of a given commodity demands a special train, running at a particular hour and on fast time, and that such train must return empty, are all necessary to be considered in deter- mining what, in such case, is a reasonable rate. Boston Fruit and Produce Exch, v. N. Y. & N. E. R E. Co., 4 1. C. C. (3 1 G, 498). See Comparison of bates, post. Storage capacity. — In determining what is a reasonable rate on a given commodity the amount of storage capacity at initial and terminal points is a fact to be considered. Boston Chamber of Com. v. L. S. & M. S. R'y Co., 1 1. C. C, 436. Through billing. — Where a combined rate, evidenced by a through bill of lading from the point of origin to des- tination, has every substantial constituent of a through rate, it is a through rate, although not formally "quoted" by one of the carriers to another. MiL Cham, of Com. v. F. & P. M. R R Co., 2 L C. C, 553. Through rates. — Through rates are not necessarily ille- gal, although when divided the individual carriers receive less than their local rate, provided the through rate is not less than some one of its locals, or unjustly discrimi- nates against persons or places, or is so low as to burden other business with part of the cost of the carriage upon which it is imposed. Lippman v. BL Cen. R R Co., 2 I. C. C, 584 C, R. I. & P. R R Co. v. C. & A. R. R Co., 3 I. C. C, 450. N. O. Cotton Exch. v. Bl. Cen. R R Co., 3 I. C. G, 534. See, also, Hamilton et al v. C. R. & C. R R Co., 4 1. C. C. (3 L C, 482). Detroit Bd. of T. v. G. T. R R Co., 2 I. C. G, 315. Poughkeepsie Iron Co. v. N. Y. C. & H. R R. R Co., 4 L C. G (31 G, 248). If combination rates produce a rate less than the tariffs call for they are unjust, because they enable an intelli- gent shipper to obtain an advantage over one who has less 24: THE INTEKSTATE COMMEKCE. LAW. [SeC. 1. information, and also because they.show two rates to the same point. Martin et aL v. Sou. Pac. R R Co., 2 I. C. G, 1. Through rates are not required to be on a mileage basis, although distance is a fact to be considered in the deter- mination of what is a reasonable rate. McMorran et ai v. G. T. B'y Co., 3 L C. C, 252. The national regulations do not provide for ordering through rates, or through routes. Mattinglyv. Penn. Co., 3 I..C. C, 592. Through rates de facto. — "Where there is no joint rate in effect from 9,. station on the line of one carrier to a sta- tion on the line of another carrier, it is competent for the first carrier to name a rate made up of the sum of the locals or of through rates and locals. In re Pass. Tariffs, 210. C, 649. Through rates favored. — The act to regulate commerce was not enacted to destroy competition, and the establish- ment of the rule of a rate per ton per mile would, in long- distance shipments, bave practically that effect. Business Men's Assoc, etc., v. C, St. P., Minn. & O.R'y Co., 2 I C. C, 52. Through transportation over connecting lines is favored by the statute, and the rate over such through lines is cor- rectly adjusted upon the distance through, and not upon the shorter distance over the several lines. Coxe et al. v. LV.E.E. Co., 4 I. C. C. (3 I. C, 460). Through rates, matters of agreement. — Through rates are matters of agreement between carriers. L., R & M. E. R Co. v. E. Tenn., Va. & Ga, R R Co., 3 L C. C, 1. Capehart v. L. & N. R R Co., 4 L C. C. (3 L C, 278> In re Clark, Agent, etc., 3 L C. C, 649. Through rates must he reasonable. — Through and con- tinuous lines imply through rates, which must be reasonable. Brady et al v. Penn. R R Co., 2 L C. C, 131. SEC. 1.] B. REASONABLE RATES. 25 Through rates, responsibility for. — Carriers cannot rid themselves of responsibility for unjust charges by breaking the haul in two and calling themselves carriers on separate ends, of their through lines. Brady et aL v. Penn. R R Co., 2 I C. C, 131. Through shipments. — The fact that railroad companies accept on through shipments from Chicago to Boston a cer- tain sum as their share for the transportation of freight from Schenectady to Boston is no ground for compelling them to accept alike sum for local shipments from Schenec- tady to Boston, when it appears that this would be a reduc- tion below the rates made from intermediate points to Boston on the same line, and under substantially similar cir : cumstances and conditions. Thatcher v. D. & H. C. Co. et aL, 1 L C. C, 153. Trade centers. — A distributing center, however great and important, cannot demand, as a matter of right, that the rates from a common source of supply shall be made up by the rate to itself and the rate thence to the more dis- tant and smaller town, but the carrier may make a rate directly to the smaller town. Martin, etc., v. C, B. & Q. R R Co. et aL, 2 L C. C, 25. Two methods of shipment provided. — When two modes of shipment are provided, the shipper has a right to insist that the charges on each shall be relatively reasonable. Rice v. L. & N. R R Co., 1 L C. C, 50a Scofield et aL v. L. S. & M. S. E'y Co., 2 I C. C, 90. In re Tank and Barrel Rates on Oil, 2 1. C. C, 365. Rice v. W. N. Y. & P. R R Co., 41 C. C. (3 L C.,,162). Unreasonably low rates. — The provision in the law that all charges shall be reasonable and just does not authorize the Commission to compel the raising of a rate, nor does it make a low rate unreasonable. ; . In re C, St P. & K. C. R'y Co., 2 1 C. C, 231. Use to the public. — In determining the question of what is a reasonable rate on a given commodity, the in- 26 THE INTERSTATE COMMERCE tAW. [Sec. 1. terest of the public in the use of such commodity is a fact, among other things, to be considered. Imperial Coal Co. et al. v. P. & L. E. R. R. Co. et al., 2 L C. C, 618. Unsettling of rates.— "Where a change of rates would unsettle relative rates in a large extent of territory, such change should not be made unless upon adequate grounds. Rice et al. v. W. N. Y. & P. R. R Co., 2 I. C. C, 389. Talue. — In determining the reasonableness of a rate the market value of the commodity in question is a -fact, among others, to be considered. Evans v. Oreg. R'y & Nav. Co., 1 1 C. Q, 325. James eiaLy. E. Term., Va. & Ga. R'y Co., 3 I. C. G, 225. Harvard Co. v. Penn. Co., 4 I. C. G. (3 I. G, 257). Warner v. N. Y. Cen. & H. R R. Co., 4LC.C. (3 I. C.,.74). Delaware State Grange, etc., v. N. Y., P. & N. R. R. Co., 4 I G G (3 L G, 554). N. O. Cot. Ex. v. LI. Cent R. R. Co., 3 I G G, 534. Beaver et aL v. P., G & St L. R'y Co., 4 I. G G (3 L G, 564). Tolume of business. — In considering the question of what is a reasonable rate, the volume of business is a fact, among other things, to be considered. Boston Cham, of Com v. L. S. & M. S. R'y Co., 1 1. G G, 436. Rice et al. v. W. N. Y. & P. R. R. Co., 2 I. G C, 389. ' Warner v. N. Y. Cen. & H. R. R. R. Co., 4 L G G (3 L G, 74). Way-bills. — When a shipper of freight gives direction to the agents of the initial carrier as to the particular route over which he desires his shipment to pass, the way-bill should be so made out that the freight will pass over the route chosen, and any charge in excess of that first deter- mined upon is unjust and should be refunded. Pankey v. R & D. R. R. Co., 3 I. G G, 658. Weight. — In determining what is a reasonable rate on a given commodity, the Commission will consider, among other facts, the weight of the package. In re Tank and Barrel Rates on Oil, 2 I G G, 365. N. Y. Bd. of T. et aL v. Penn. R Co. et aL, 4 I. G G (3 L G 417). Sec. 2.] unjust disckihination. 27 Section 2. UNJUST DISCBIMXNATIOIT. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, re- bate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less com- pensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions or this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the trans- portation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. Note. — It has been supposed by many that the above section, defin- ing and forbidding unjust discrimination, had in it an idea of specific intent on the part of the carrier to work an injury to the shipper; and was in this respect a development of the English statute suited to the exigencies of American railway traffic. The Interstate Commerce Commission does not seem to have recog- nized this distinction, but has treated sections 2 and 3 as correlative. A vigorous comparison of the two sections may be found in the dissenting opinion of Commissioner Bragg, in the case of Stone et aL v. Detroit G. & M. R'y Co., 3 I. C. C, at pp. 624 et seq.; and see Scofield v. L. S. & Mich. S. R'y Co., 2 I. C. C, pp. 120, 121. The reasons given for the introduction of section 2 must be sought for in the congressional debates prior to the passage of the act. Amount of freight furnished.— r An offer of discount to shipper, based merely on the amount of freight offered for shipment, is void ; and, if such discount be not given to all shippers, regardless of quantity, is an unjust and unlawful discrimination. Providence Coal Co. v. P. & W. R. R. Co., 1 1. C. C, 107. Note.— Other considerations, as cost of carriage, speedy dispatch, etc., might change the rate. See, also, Thurber v. N. Y. C. & H. R. R. R. Co., 3 I. C. C, 473. Harvard Co. v. Perm. Co., 4 I. C. C. (3 I. C, 257). Hays v. Perm. R. R. Co., 12 Fed. Rep., 309. Kinsley v. B., N, Y. & P. R R Co., 37 Fed. Rep., 181. 28 THE INTEESTATE COMMEECE LAW. [Sec. 2. Basing-points.— The so-called " basing-point system " of rate making, which consists in the making of rates to local centers, and making the' rates to surrounding points by- adding thereto the local rate from such basing-point to the place of destination, is against public policy, and when it results in unjust discrimination against. local points is un- lawful. In re Tariffs and Class'naof A. & W. P. R R Co., 3 L C. C, 19. Hamilton et aL v. C. R & 0. R R Co., 4 L C. C. (3 I. C, 482). The practice of using two basing-points, and giving to the shipper the benefit of the best rate, is defective in that the carriers treat traffic intended to be continuous as two kinds of service. Hamilton et aL v. C. R & C. E. R Co., 4 I. C. C. (3 I C, 482). Car-load lots. — A difference between rates in car-load lots and less than car-load, lots of the same merchandise between the same points of carriage is unjust; and this is equally true of car-load lots from a single consignor and car-load ldts from more than one consignor, or to a single consignee and to more than one consignee. Thurber v. N. Y. Cen. & H. R R R Co., 3 I. C. C, 473. The change from the practice of allowing shippers of cattle to load cars, irrespective of weight, at a fixed charge, to that of limiting the weight and charging for each addi- tional hundred pounds, is proper. Leonard v. C. & A. R R Co., 3 L C. C, 241. Carriage at a loss. — When the rate charged by a carrier 1 is such as to impose a burden upon other traffic, or upon like traffic to other points along the line, it is to be deemed destructive of competition, and is unlawful. Lehmann et al. v. Sou. Pac. R R Co., 4 I. C. C. (3 I C, 80). Circumstances and conditions.— All the circumstances and conditions surrounding the traffic are to be considered in determining what is a reasonable rate. See Reasonable bates, how determined. Sec. 2.] unjust discrimination. 29 Circumstances must Ibe similar. — See. Substantially SIMILAK CIECUMSTANOES AND CONDITIONS, Section 4. Classification. — Classification of railroad ties should be the same as that of rough lumber, and a higher classifica- tion is unjustifiable. Reynolds v W. N. Y. & P. R'y Co., 1 1. C. C, 393. Grades of soap, competitive in the market, should not be subjected to such differences of classification as to work an unjust discrimination, and, upon application, the Commis- sion will determine the relation which such classifications should bear to one another. Pyle et al. v. E. Term., Va. & Ga. R. R. Co. et aU 1 1. C. C, 465. Proctor et aL v. C, H. & D. R R Co., 4 I. C. C. (3 I. C.,'l31). ( , Beaver v. P., C. & St L. R R Co., 4 I. C. C. (3 I. C, 564). Classification of articles of the same general character should be the same ; and a difference in classification works an injustice to shippers, and is illegal. Martin et al. v. Sou. Pae. R R. Co., 2 I. C. C, 1. Hurlburt v. L, S. & M. S. R'y Co., 2 I. C. C., 122. Harvard Co. v. Penn. Co., 4 1 C. C. (3 I. C, 257). Classification which makes differences, based upon car- load and less than car-load lots on like commodities, over identical lines, is unjust. See CAe-load lots, supra. "Where previous classification and rate is not found to operate injuriously, a change which materially injures an important industry is not justifiable. Batea et al v. Penn. R R Co., 3 I. C. C, 435. Articles classified alike are presumptively entitled to equal rates, and if a difference is made the carrier assumes the burden of sustaining such difference by evidence. McMorran et al. v. G. T. R'y Co., 3 I. C. C, 252. N. Y. Board of Trade, etc., v. Penn. R R Co., 4 L C. C. (3 I. C, 417). Classification is recognized by the Commission as nec- essary, but when used as a device to accomplish unjust dis- 30 THE INTERSTATE COMMERCE LAW. [SeC. 2. crimination, it becomes the duty of the Commission to cor- rect it. Coxe et al. v. L. V. E E Co., 4 I C. C. (3 I. G, 460). Combination rates.— Rates obtained by combination, which produce a" lower rate than the tariff calls for, are un- just. Martin v. Sou. Pac. E. R Co., 2 I. C. C, 1. Commercial travelers. — Commission has' no power to compel railway companies to give commercial travelers per- mission, to take an extra allowance of baggage without special charge. Traders' & Travelers' Union v. P. & R R R Co., 1 1. C. C, 123. t See Mileage tickets, post. Commodity rates. — Interstate carriers have the right tp make commodity and class rates. N. Y. Bd. of T. v. Penn. E E Co., 4 I. C. C. (3 I. C, 417). Commutation tickets. — It is not an unjust discrimina- tion to refuse to refund the fare paid on a commutation ticket good for a specified time, after the time had expired, or to exact, under rules of the company, twenty-five cents additional fare. Sidman v. R & D. R R Co., 3 I. C. C, 512. A " party rate " ticket is not a " commutation " ticket. P., C. & St. L. E'y Co. v. B. & O. E E Co., 3 I. C. C, 465. Comparison with other articles. — Where classification and rates are involved as to one particular article of freight, it is proper to compare the rate in question with that of other articles similar in value, bulk, cost of carriage and the like ; and it is not necessary that such articles should be competitive. Harvard Co. v. Penn. Co., 4 I C. C. (3 I. C, 257). Beaver v. P., C. & St. L. E R Co., 4 I C. C. (3 I. C, 564). Competition not an excuse. — Where a railway company controlling two lines of road so fixes the rate as to divert traffic to one locality which would naturally go to another, Sec. 2.] unjust discrimination. 31 such preference is not excused by the fact that a portion of such charges are the result of competition between car- riers. Raymond v. C, M. & St P. R'y Co., 1 1 C. C, 230. See, also, In re L. & N. R R Co., 1 I. C. C, 31. Contracts between railroads. — The fact, that a contract exists between two railroads is not an excuse for unjust discrimination in favor of particular customers. The pub- lic must be justly and equally served. Riddle et al. v. N. Y., L. E. & W. R R Co., 1 1. C. G, 594 Where, by contract, points upon the defendant carrier's line are to be treated by the co-defendant carrier as initial- points, the public may insist upon having the benefit of such contract. Riddle et al v. N. Y., L. E. & W. R. R Co.. supra. Device. — The shipment of the same article in two man- ners, and at different rates, may become a " device " under the second section of the act and be unlawful. See Scofleld et al v. L. S. & M. S. R'y Co., 2 1. C. C, 90. Procter et al v. C, H. & D. R. R Co. et al, 4 I. C. C. (3 I. C, 131). Discrimination by method of rate making. — The method of rate making on traffic destined to foreign ports by adding to the inland rate the ocean rates (varying from day to day), and publishing the rat6 without separating the inland rate, is improper, and when such method results in discrimination is unlawful. N. Y. P. Ex v. N. Y. C. & H. R R R Co v 3 I. C. C, 137. Discrimination by special rates. — For a case of unjust discrimination by special rates on soaps of different grades, See Pyle et al v. E. Tenn., Va, & Ga, R R. Co., 1 1. C. C, 465. See, also, Beaver v. P., C. & St. L. R R. Co., 4 I. C. C. (3 1 G, 564). It is not a valid excuse for failure to furnish cars to com- plainant that such cars may be more profitably employed ; such selection of goods is forbidden to common carriers. Riddle et al v. N. Y, L. E. & W. R R Co., 1 1. C. G, 594. 32 THE INTEKSTATE COMMEKCE LAW. [SEC. 2. Encouragement of carriers' business. — A discrimina- tion by extending half fares to emigrants moving to sparse settlements where land is cheap cannot be sustained. Elvey v. IU. Cen. R. E Co., 3 L C. C, 652. On the question of the authority of the Commission to control emigration, See Savery v. N. Y. Cen. & H. B. E. E. Co., 2 I. C. C, 338. Facilities for traffic. — A common carrier of live stock must deliver such live stock to the consignee free from all charges except such as are customary to transportation ; and such carrier does not perform its duty by delivery at a yard, access to which must be purchased. Keith et al. v. K. C. E. E. Co. et al., 1 1. C. C, 189. Free cartage. — When free cartage from terminal depot is furnished at one of the towns along the carrier's line, and is not furnished at others, such free cartage becomes an unjust discrimination, and is unlawful. Stone et al v. D., G. H. & M. E'y Co., 3 I. C. C, 613. Free passes. — An annual pass to a person not in the reg- ular employ of the road; but requested by him as compen- sation for throwing business in the way of the carrier, is illegal. Slater t. N. Pac. E'y Co., 2 L C. C, 359. A free pass given to a discharged employee, which was never used, and expired in the hands of the employee, does not constitute an offense under either sections 2 or 3 of the law. Griffiee v. B. & Mo. E E E. Co., 2 I. C. C, 301. The giving of free transportation to one person while denying it to others, such person not being within the ex- ceptions mentioned in the twenty-second section of the act, . is illegal. United States v. CL, C. & S. R E> Co., 8 L C, 290 (TJ. S. C. Ct. N. Dist. Ohio). Furnishing companies. — The act to regulate commerce does not forbid a carrier from obtaining cars from shippers Sec. 2.] tin-just discrimination. 33 or from car-furnishing companies, but it does demand that after deducting a reasonable rental therefor the charge to other shippers shall be the same as is charged to such car- furnishers. Scofleld v. L. S. & M. S. R'y Co., 2 I. C. 0., 90. Rice v. L. & N. R E. Co., 1 1. C. C, 503. Good faith. — Upon complaint of unjust discrimination in failure to furnish cars on request of shipper, defendant may show good faith in endeavoring to supply cars, both at that time and at previous times, in order to rebut the inference arising from the circumstances. Riddle et al v. B. & O. R. R. Co., 1 I. C. C, 608. Group rates. — Grouping of rates on products, such as milk, coal and the like, over a larger extent of countrv. not shown to injure the producers, is not unjust. Howell et al v. N. Y., L. E. & W. R. R. Co., 2 I. C. C, 272. Imperial Coal Co. v. P. & L. E. R. R. Co., 2 I. C. C, 618. Rend v. C. & N. W. R'y Co., 2 L C. G, 540. Coxe et al. v. L. V. R. R. Co., 4 I. C. C. (3 I. C, 460). Initial expenses. — Additional expense in collecting milk at the initial point is a fact to be considered in connection with the determination of rates on that product. Howell v. N. Y., L. E. & W. R. R Co., 2 I. C. C, 272. " Like kind of traffic " in sections 2 and 4 construed. — The term " a like kind of traffic," as found in section 2 of the act, does not mean traffic which is identical, but it means traffic which is like in the elements upon which a fair and just classification is founded, and in the elements to be considered in the determination of what, is a just and reasonable rate. N. Y. Bd. of T. et aL t. Penn. R. R. Co. et al., 4 I. C. C. (3 I. C, 417). Local rates. — A railroad company is under special obli- gation to give reasonable rates for its local business, but many influences may affect its rates on through business which have no bearing on local rates. Lippman v. 111. Cen. R R Co., 2 I. C. G, 584 See Through rates, post. 3 34 THE INTERSTATE COMMERCE LAW. [Sec. 2. Local and through rates defined.^- Purely local rates are such as are made from station to station, and with some approximation to distance, and are never in railroad circles made use of in connection with rates for long distances, which are made in disregard of rates to and from numerous intermediate stations. Martin v. C, B. & Q. R R Co., 2 I. C. C, 25. Mileage, excursion and commutation tickets. — Mileage, excursion and commutation tickets are issued for different purposes, and the price for each, therefore, is determined by different considerations. They should be sold impar- tially to all who apply for them and on the same terms. Ass'dW. Grocers of St Louis v. Mo. Pac. R'y Co., 1 L C. C, 156. Mileage tickets. — Mileage tickets must be sold impar- tially to all the public who apply for them. It is not com- petent to sell them to commercial travelers or particular classes of persons. The exception in the twenty-second section of the act does not exempt the carrier. Larrison v. C. & G. T. R'y Co., 1 1. C. G, 147. Milk rates. — See Group rates, supra. Milling in transit. — It is questionable whether " tran- sits," so called, are valid in law, and whether carriers are bound to give transportation according to their terms, when the effect would be to discriminate in rates in favor of one locality over another. In re St L. Millers' Assoc, 1 1. C. C, 20. Note.— See case of Cham, of Com. of Milwaukee v. F. & P. M. R R Co. et al., 2 I. C. C, 553, where, obiter dicta, the Commission recog- nize without condemning the practice. Party rates. — Party rates lower than contemporaneous rates for single persons constitute unjust discrimination against such single persons entitled to transportation, and are illegal. In re Passenger Tariffs, 2 I. C. C, 649. P., C. & St. L. R'y Co. v. B. & O. R. R Co., 3 I. C. C, 465. But see case of Interstate Com, Com. v. B. & O. R R. Co., 43 Fed. Rep., 37, where, under a somewhat different presentation of facts, a contrary view was taken. The case stands' now in the United States supreme court on appeal. Sec. 2.] unjust discrimination. 35 Passenger rates. — Low passenger rates without the fil- ing of tariffs are not justified by so-called rate wars, and are not justified at all unless intermediate rates are reduced proportionally, as required by the fourth section of the act. In re Passenger Tariffs, etc., 2 L C. C, 513. Preference by equipment.— Eegular patrons of the road are not entitled to preference in the use of equipment of common carriers. The public must be justly and equally served. Riddle et aL v. N. Y., L. E. & W. R R Co., HO. C, 594 Private cars. — A common carrier cannot be compelled to receive a private car ; nor is it an unjust discrimination to receive the cars of one person or company and to re- fuse to haul the cars of another person or company. Worcester Exc. C. Co. v. Penn. R R Co., 3IC. C, 577. If, however, a carrier chooses to receive and haul them, it must not do so under contracts which are mere devices to evade the law. Shamberg v. D., L. & W. R R Co., 4 L C. C. (3 I C, 502). See section 1, A, Power to compel carrier to give special PRIVILEGES. Proportion of through rate should he reasonable. — The difference between the proportions of through rates along the same line should be fairly reasonable in amount, and so arranged as not to injure business in one locality in order that business may be stimulated in another locality. Chamber of Commerce of Mil v. F. & P. M. R R Co., 2 L C. C, 553. Proportion of through rates. — See Through r"ates, post. Race distinctions. — Colored people who purchase, first- class tickets have a right to and must be furnished with accommodations equally safe and comfortable with other first-class passengers. Councill v. W. & A. R R Co., 1 1. C. C, 339. Heard v. Ga. R R Co., 1 I. C. C, 428. Heard v. Ga. R R Co., 3 L C. C, 111. 36 THE INTERSTATE COMMERCE, LAW. [Sec. 2. Rates made lt»y connecting roads. — A carrier is not re- sponsible for rates made by a connecting road merely be- cause of its giving them in connection with its own rates to parties desiring to make through shipments. Crews v. R & D. R R. Co., 1 1. C. C, 401. Rates relatively reasonable. — Rates must not only be reasonable in themselves, but they must be so relatively reasonable as to protect communities and business against unjust discrimination. Farmington Board of Trade of Minn. v. C, M. & St P. R'y Co., 1 I. C. C, 215. Raymond v. C, M. & St. P. R'y Co., 1 1. C. C, 230. Crews, etc., v. R. & D. R R. Co., 1 L C. C, 401. Boston Chamber of Commerce v. L. S. & M. S. R'y Co., 1 1. C. G, 436. Manuf'rs & Jobbers' Union v. M & St L. R'y Co., 4 1. C. C. (3 I. C, 115). In re Produce Exch. of Toledo, 2 L C. C, 588. Seaboard consignments. — See Discrimination- in rate making, supra. Settlers' tickets. — The sale of land-explorers' tickets at less than regular rates as practiced by the defendant is ob- jectionable. But there is no illegality in the company sell- ing tickets with an agreement attached that in case the purchaser should buy lands from the company, a part of the price of a ticket, or the whole of it, shall be allowed as payment upon the land purchase. Smith v. N. Pac. R. R Co., UC. C, 208. Similar circumstances and conditions. — The term " under substantially similar circumstances and conditions " is usfed in the same sense both in the second and fourth sections of the act. In re L. & N. R. R. Co., 1 1. C. C, 31. Bus. Men's Ass'n v. C, St. P., Minn. & O. R'y Co., 2 L C. C, 52. The similar circumstances and conditions must not be the creation or at the connivance of the carrier, but must be compulsory. Bus. Men's Ass'n of Minn. v. C, St P., M. & O. R'y Co., 2 I. C. C, 52. , Rice et al. v. W. N. Y. & P. R. R. Co., 4 I. C. C. (3 L C, 162). Sec. 2.] unjust discrimination. 37 Small and large towns. — It is not a ground of complaint against a railroad company that it equalizes its rates as be- tween small and large towns, although the effect of such equalization be prejudicial to the larger towns, which be- fore had been specially favored. Crews v. R & D. R. R Co., 1 1. C. C, 401. Martin et aL v. C, B. & Q. R R Co., 2 I. C. Q, 35. Special privileges. — See section 1, A, Power to compel ' CARRIER TO GIVE SPECIAL PRIVILEGES. Stoppage in transit. — "When property is billed from one station to another and with the understanding that it shall be unloaded at an intermediate station, and that whether it shall be reloaded for further carriage shall be optional with shipper or his assignee, it is not a through shipment and not entitled to protection as such. ' C, R L & P. R'y Co. v. C. & A. R R Co., 3 L C. C, 450. See Milling in transit, supra. Through billing.— Where a combined rate, evidenced by a through bill of lading from the point of origin to destina- tion, has every substantial constituent of a through rate, it is a through rate, although not formally " quoted " by .one of the carriers to another. MiL Chain, of Com. v. F. & P. M. R R Co., 2 L C. C, 553. Through rates. — Through rates are not necessarily ille- gal, although, when divided, the individual carriers re- ceive less than their local rate, provided, that the through rate is not less than some one of its locals, or unjustly dis- criminates against persons or places, or is so low as to bur- den other business with part of the cost of the carriage upon which it is imposed. Lippman v. I1L Cen. R R Co., 2 I. C. C, 584. ! C, R I. & P. E'y Co. v. C. & A. R R Co., 3 L C. C, 450. N. O. Cotton Exch. v. I1L Cen. R R Co., 3 L C. C, 534 See, also, Hamilton et aL v. C. R & C. R R Co., 4 L C. C. (3 L C, 482). Detroit Bd. of T. v. G. T. E'y Co., 2 L C. G, 315. Poughkeepsie Iron Co. v. N. Y. G & H. R R E. Co., 4 L G C. (3 I 0, 248). 38 THE INTERSTATE COMMERCE JAW. [Sec. 2. If combination rates produce a rate less than the tariffs call for, they are unjust, because they enable an intelligent shipper to obtain an advantage over one who has less in- formation, and also because they show two rates' to the same point. Martin et al v. Sou, Pac. R E. Co., 2 I. C. C, 1. The question whether a given local rate so far exceeds carrier's proportion of a through rate as to make out a case of undue preference under section 3 is for the jury. United States v. Tozer, 39 Fed. Rep., 369. Through rates, responsibility for. — A carrier cannot rid itself from responsibility for unjust charges by breaking the haul in two and calling itself a carrier on separate ends of its through line. Brady et al. v. Penn. R R Co., 21 C. C, 131. In re Investigation, etc., G. T. R'y Co., 3 L C. G, 89. Through shipments. — The fact that railroad companies accept, on through shipments from Chicago to Boston, a certain sum as their share for the transportation of freight -from Schenectady to Boston, is no ground for compelling them to accept a like sum for local shipments from Schenec- tady to Boston, when it appears that this would be a re- duction below the rates made from intermediate points to Boston on the same line and under substantially similar circumstances. Thatcher v. D. & H. C. Co. et aL, 1 1. C. C, 152. See Through eates, supra. Tank cars. — See Two methods of shipment peovided, post. Ticket brokers. — The employment, by carriers, of ticket , brokers and scalpers, for the purpose of selling tickets at less than published rates, is illegal. In re Pass. Tariffs and Rate Wars, 2 I. C. C, 513. ■ Tickets, failure to purchase. — See Commutation tickets, supra. Tickets, partially unused. — See Commutation tickets, supra. Sec. 2.] unjust disckimination/. 39 Trade centers. — A distributing center, however great and important, cannot demand, as a matter of right, that the rates from a common source of supply shall be made up by the rate to itself and the rate thence to the more distant and smaller town, but the carrier may make a rate directly to the smaller town. Martin, etc., v. C, B. & Q. R R Co. et al., 2 I. C C, 25. See Basing-points, supra; also, Small and large towns, supra. See, also, In re L. & N. R R. Co., 1 1. C. C, 81. Harwell et al. v. C. & W. R R. Co., 1 1. C. C, 236. Two methods of shipment provided. — When two modes of shipment are provided the shipper has a right to insist that the charges on each shall be relatively reasonable. Rice v. L. & N. R. R Co., 1 1. C. C, 503. Scofield et al. v. L. S. & M. S. R'y Co., 2 I. C. C, 90. In re Tank and Barrel Shipments, 2 I. C. C, 365. Rice et al. v. W. N. Y. R R Co., 4 I. C. C. (3 I. C, 162). Under hilling a device: — Underbuying is a device, and is forbidden by the act to regulate commerce. In re Underbilling, 1 L C. C, 633. Water competition. — See section 4. Way -hills. — When a shipper of freight gives directions to the agent of the initial carrier as to the particular route over which he desires his, shipments to pass, the way-bill should be so made out that the freight will pass over the route chosen, and any charge in excess of that first deter- mined upon is unjust and 'should be refunded. Pankey v. R & D. R. R. Co., 3 I. C. C, 658. 40 THE INTEESTATE OOMMEECE LAW. [SeO. 3. Section 3. A. UNDUE PREFERENCE. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular per- son, company, firm, corporation, or locality, or any particu- lar description of traffic, in any respect whatsoever, or to subject any particular, person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any re- spect whatsoever. ^ Note. — This section is a substantial copy of section 2 of the English Railway Act of 1854. For copy of latter section see Appendix. For construction of the section the student is referred to the notes to section 2, supra. B. FACILITIES FOR INTERCHANGE OF TRAFFIC. Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiv- ing, forwarding, and delivering of passengers and property to and from their several lines and those connecting there- with, 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 en- gaged in like business. , Facilities for interchange of traffic. — A common car- rier may be compelled to give to another common carrier equal facilities ; and the Kentucky & Indiana Bridge Com- pany is such a carrier, and may demand such facilities of a railway company. Ky. & Ihd. Bridge Co. v. L. & N. R. R. Co., 2 I. C. C, 162. Note. — On application to a federal court, based on above opinion, the court held that the bridge company was not a comnion carrier, and refused an injunction prayed for. See 37 Fed. Rep., 567. Sec. 3.] , b. facilities foe inteechange of teaffio. 41 A railroad company may be compelled to offer the same facilities for interchange of cars and freight in bulk with one connecting road that it does with another. Or. Short line E Co. v. N. Pac. E E. Co., 3 L C, 305 (U. S. Cir. Ct, Disk of Or.). One railroad company has the right to issue through bills of lading for freight and through tickets for passengers over a connecting road, although there is no contract be- tween the companies, but not at through rates. Or. Short Line E Co. v. N. Pac. E E Co., 3 L C, 205 (U. S. Cir. Ct, Dist of Or.). '. It is a violation of the third section for a carrier to refuse to continue an arrangement whereby it delivered traffic, destined to New York city, to petitioner, on the ground that respondent had become part owner in another line having same terminal point. New York & Northern E'y Co. v. N. Y. & N. Eng. E E Co., 4 L C. C. (3 L G, 542). A common carrier cannot demand that the agent of an- other carrier shall sell the passenger tickets of the former. Chicago & Alton E E Co. v. Penn. Co., 1 L C. C, 86. Power to compel carrier to receive private cars. — See section 1, A, Powee to compel caeeiee to give special PEIVILEGES. Power to compel joint rates. — See section 1, A. 42 THE INTERSTATE COMMERCE LAW. [SeC. i. Section 4. LONG AND SHOET HAUL. That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance ; but this shall not be construed as authorizing any common car- rier within the terms ■ of this act to charge and receive as great compensation for a shorter as for a longer distance : Provided, however, That upon application to the Commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the 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 pre- scribe the extent to which such designated common carrier may be relieved from, the operation of this section of this act. Note. — This section is a special case of unjust discrimination, and the notes to section 2, supra, should be consulted. Circumstances must be substantially similar. — The prohibition in the fourth section of the act is limited to cases in which the circumstances and conditions are sub- stantially similar. In re L. & N. R. R. Co., 1 L C. C, 31. Where it is difficult to point out clearly the circumstance or condition which produces dissimilarity, the doubt should be resolved in favor of the law, and the circumstances and conditions should be taken as substantially similar. Mo. Pac. E'y Co. v. Tex. Pac. R'y Co., 31 Fed. Rep., 862. Where the circumstances and conditions are substantially similar, and the result to the carrier is injurious, relief can be had only through the Commission. Mo. Pac. R'y Co. v. Tex. Pac. R'y Co., 31 Fed. Repi, 862. Sec. 4.] LONG AND shoet haItl. 43 Comparison of rates.— See section 1, B. Competition. — Actual competition of controlling force, and important in amount, may make out the dissimilar cir- cumstances and conditions, entitling the carrier to charge less for the shorter than for the longer haul over the same line in the same direction, the shorter being included in the longer : 1st. When the competition is with carriers by water, which are not subject to the provisions of the statute. 2d. When the competition is with foreign or other roads, not subject to the provisions of the statute. 3d. In rare and . peculiar cases of competition between railroads, subject to the statute, when a strict application of the general rule would be destructive of legitimate com- petition. In re L. & N. E. R Co., 1 1. C. C, 31. See, also, Ex parte Koehler, 25 Fed. Eep., 73. Ex parte Koehler, 31 Fed. Rep., 315. Mo. Pao. R'y Co. v. Tex. Pao. R'y Co., 31 Fed. Eep., 862. Group rates. — Grouping of rates on pr<*lucts such as milk and the like over a larger extent of country, not shown to injure the producers, is not unjust. Howell et al. v. N. Y., L. E. & W. R. E. Co., 2 I. C. C, 272. Imperial Coal Co. v. P. & L. E. R E. Co., 2 L C. C, 618. fiend v. C. & N. W. R'y Co., 2 I. C. C, 540. Coxe et al. v. L. V. R R Co., 4 I. C. C. (3 I. C, 460). See, also, Rice v. A., T. & S. F. R R Co. et al.,. 4 I. C. C. (3 I. C, 263). Insufficient justification. — When a greater charge in the aggregate is made for the transportation of passengers or the like kind of property for a shorter than for a longer distance, over the same line in the same direction, the shorter being included in the longer distance, it is not a sufficient justification therefor that the traffic subjected to such greater charge is way or local traffic, while that which is given the more favorable rates is not. Nor is it a sufficient justification that the short-haul traffic is more expensive, unless the circumstances make it excep- tionally so. 44 THE INTERSTATE COMMERCE LAW. [SEC. 4. Nor that the lesser charge has for its motive the encour- agement of industry. Nor that it is designed to build up trade centers. Nor that such eharge is a mere continuation of the prac- tice whereby trade centers have been build up. In re L. & N. R R Co., 1 I. C. C, 31. Joint rates may violate.— See Same line construed, post. * Like kind of traffic in sections 2 and 4 construed. — See section 2. Local rates.— A railroad company is under special ob- ligation to give reasonable rates for its local business, but many influences may affect its rates on through business which have no bearing on local rates. Lippman v. ILL Cen. R R Co., 2 L C. C, 584 See Through rates, post. Local and through rates defined. — Purely local rates are such as are made from station to station, and with some approximation to distance, and are never in railroad circles , made use of in connection with rates for long dis- tances, which are made in disregard of rates to and from numerous intermediate stations. Martin v. C, B. & Q. R R. Co., 2 L C. C, 25. Proviso in fourth section. — Commission will make no order for relief under the fourth section of the act, except on verified petition and after investigation. In re Sou. Pac. R. R Co., 1 1. C. C, 6. Railroads must first fix rates. — The Commission will leave railroads to fix their rates in cases where the latter claim that the circumstances and conditions justify them in making a greater charge for a short than for a long haul, and will wait for complaint to be made by parties who consider themselves injured. In re L. & N. R R Co., 1 1. C. C, 31. Each road must determine for itself whether the circum- stances and conditions surrounding the traffic are so dis- SEC. i.~] LONG AND SHORT HAUL. 45 similar as to justify a departure from the rule of the fourth section. B. & A R R Co. et aL v. B. & L. R R. Co. et al., 1 L C. C, 158. Same line construed. — The phrase "same line" used in the fourth section of the act means a physical line, and not a business arrangement ; and one piece of road may be a part of several lines ; and when two or more roads unite to form a continuous line, issue and use joint tariffs, they constitute one line, and by charging a greater sum for a longer than for a shorter distance may violate section 4 of the statute. B. & A. R R Co. et aL v. B. & L. R R. Co. et al., 1 1. C. C, 158. Similar circumstances and conditions. — See section 2. Water competition. — Competition by water, when such carriers are not subject to the provisions of the act, and when such competition is of controlling force and impor- tant in amount, may justify a greater charge for a shorter distance over the same line, in the same direction, within the meaning of the fourth section of the act. In re L. & N. R R Co., 1 L C. C, 31. King et aL v. N. Y., N. H. & H. R R Co., 4 L C. C. (3 I. C, 272). N. O. Cot Ex. v. HI. Cen. R R Co., 3 I. C. C, 534 Lehmann et aL v. Sou. Pac. R R Co., 4 I. C. C. (3 L C, 80). "Where the real competition is by rail, the fact that there is also possible water competition will not of itself make out the dissimilar circumstances and conditions. B. & A. R R Co. et al. v. B. & L. R R Co. et al., 1 L C. C, 158. Harwell et aL v. C. & N. W. R'y Co.'et aL, 1 L C. C, 236. San Bernardino Bd. T. v. A., T. & S. F. R R Co., 4 1 C. C. (3 L C, 138). Railways which are compelled to meet the competition on the great lakes may, in some instances, find therein the justification for a greater charge for a shorter distance over the same line, in the same direction, within the meaning of the fourth section of the act. Bus. Men's Assoc, of Minn. v. C„ St P., M. & 0. R'y Co., 2 I. C. C, 52. See Bates et al. v. Penn. R R Co., 3 L C. C, 435. Bates et aL v. Penn. R R Co., 4 J. C. C. (3 I. C, 296). 46 THE INTEESTATE COMMERCE LAW. [SeCS. 5, 6. Competition at longer distance points with coast route carriers, which might warrant the making of a rate propor- tionally lower than that which would otherwise be reason able on all the business of- the road, cannot operate to in- crease the charges for shorter distances. James et aL v. E. Tenn., Va. & Ga. E'y Qo., 3 L 0. C, 225. ' Section 5. POOLING. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and com- peting railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof ; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continu- ance shall be deemed a separate offense. Section 6. A. POSTING OP SCHEDULES. That every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous Sec. 6.] a. posting of schedules. 47 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. As amended by act of congress of March 2, 1889. Classification. — See section 1, A. Export tariffs must toe filed. — Every tariff to a foreign country of customary articles of export, whether joint or not, must be filed with the Commissio|jband must be made public. *fe In re Publication of Export Tariffs, 1 I. C. C, 638. In case such tariff is made up partly of ocean freights, liable to fluctuation, such tariff must show separately the amount of the inland charge. In re Publication of Export Tariffs, 1 1. C. C, 658. Such tariffs must be printed in type not smaller than small pica, and posted, subject to inspection, in every depot or station where such freight is received or delivered. In re Publication of Export Tariffs, 1 1. C. C, 658. Joint rates, duplication of. — Schedules of joint tariffs required to be filed with the Commission need not be du- plicated by each company which unites in making them. On a receipt of a written statement from each corporation acknowledging the authority of the association, committee or other traffic combination to issue tariffs in its behalf, schedules filed by such association, etc., will be credited to each of such roads. In re Joint Tariffs and Schedules, 1 1. C. C, 225. Joint rates must be filed, how. — If through rates are made by the addition of the local rates to the rates of con- necting carriers, tariffs showing such local rates must be filed with the Commission. In re Filing of Joint Tariffs, 1 1. C. C, 657. Joint rates made otherwise than by the addition of the local rates to the through rates of connecting lines must be also filed. In re Joint Tariffs and Schedules, 1 1. C. C, 225. 48 THE INTERSTATE COMMEECE LAW. [SEC. 6. Notice of advances in export tariffs. — Under the amend- ment of March 2, 1889, relative to notice of advances and reductions in joint tariffs, the change of rates from day to day for the purpose of meeting ocean rates is unlawful. The only practicable method is to make the rate to the sea-board alone. N. Y. Prod. Ex. v. N. Y. Cen. & H. R R R Co., 3 L C. G, 137. Passenger excursion rates must be published. — Party rates are not commutation tickets, and when party rates are lower than single contemporaneous rates for single tickets they are illegal. Pitts'., C. & St. L. Co. v. B. & O. R R Co., 3 I. C. C, 465. Place of publication.— On June 21, 1887, the Commis- sion ordered, among other things, that joint tariffs required by the act to be filed and made public should be posted by copy in every depot or station upon the line of the carriers uniting in such joint tariff, where any business is trans- acted in competition with the business of a carrier whose schedules are required to be posted, and that the type used should not be less, than ordinary pica. Publication of Joint Tariffs, 1 1. C. C, 5. Power of Commission to compel joint rates. — See sec- tion 1, A. Presumption by filing. — The filing of schedules of rates with the Commission raises no presumption as to their le- gality, and the failure to challenge such rates does not ren- der them lawful. San Bernardino' Bd. of T. v. A., T. & S. F. R R Co., 3 t C. C, 138. Public notice of rates. — Shippers are entitled to open rates at all times, and should not be compelled to make in- quiry thereof ; but such rates should be properly posted. In re Tariffs of Trans-cont. Lines, 2 I. C. C, 324 Schedules, foreign.— The Grand Trunk Eailroad of Can- ada is required to post and file schedules of rates and charges for the transportation of property from points in the United States and points in Canada. In re Invest'n, etc., G. T. R R Co., 3 I. C. C, 89. Sec. 6.] o. notice of change of bates. 49 Tariffs, inland, of importations.— The publication of inland tariffs on foreign merchandise should be made at the port of entry, and also at the point of destination. N. Y. Bd. of T. v. Penn. R. R. Co., 4 I. C. C. (3 I. C, 417). Traffic associations. — See Joint bates, duplication of, supra. B. POSTING SCHEDULES OF FOREIGN FREIGHT. Any common carrier subject to the provisions of this act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspec- tion, at every depot or office where such freight is received for shipment, schedules showing the through rates estab- lished and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment ; and any freight shipped from the United States through a foreign country into the United States, the through rate on which shall not have been made public as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of for- eign production ; and any law in conflict with this section is hereby repealed. As amended by act of congress of March 2, 1889. C. NOTICE OF CHANGE OF RATES. No advance shall be made in the rates, fares, and charges , which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased ' rates, fares, or charges will go into effect ; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Eeductions in such published rates, fares, or charges shall only be made after three days' previous public notice, to be given in the same manner that notice of an advance in rates must be given. As amended by act of congress of March 2, 1889. 4 50 THE INTERSTATE COMMERCE LAW. [SEC; 6. D. PUBLISHED BATES NOT TO BE DEVIATED PBOM. And when any such common carrier shall have established and published its rates, fares, and, charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to" charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force. Indictment for violation. — The carrying of freight or passengers at a less rate than the published tariff is a vio- lation of the law for which 'indictment will lie. United States v. Mich. Cen. R'y Co., 43 Fed. Rep., 36. E. COPIES OP SCHEDULES, BATES, PABES AND CHABGES TO BE PILED WITH THE COMMISSION. Every common carrier subject to the provisions of this act shall file with the Commission hereinafter provided for , copies of its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said Commission of all changes made in the same. Every such common carrier shall also file with said Commission copies of all contracts, 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. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said Commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said Commission, in so far as may, in the judgment of the Commission, be deemed prac- ticable ; and said Commission shall from time to time pre- scribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may Sec. 6.] g. joint bates not to be deviated from. 51 deem it practicable for such, common carriers to publish, and the places in which they shall be published. As amended by act of congress of March 2, 1889. Form and publication of export tariffs. — See section 6, H. Limited tickets. — It is within the province of the Com- mission, upon the filing of schedules of limited tickets, to require carriers to indicate wherein such limitation shall consist, and in such case the carrier would be bound by the answer. United States v. Egan, 46 Fed. Rep., . P. NOTICE OP CHANGE IN JOINT RATES. No advance shall be made in joint rates, fares, and charges, shown upon joint tariffs, except after ten days' notice to the Commission, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect. ISTo reduction shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the Commissipn as is above provided in the case of an advance of joint rates. The Commission may make public such proposed advances, or such reductions, in such manner as may, in its judgment, be deemed practi- cable, and may prescribe from time to time the measure of publicity which common carriers shall give to advances or reductions in joint tariffs. As amended by act of congress of March 2, 1889. G. JOINT RATES NOT TO BE DEVIATED FROM. It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of persons or property, or for any serv- ices in connection therewith, between any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the Commission in force at the time. As amended by act of congress of March 2, 1889. 52 THE INTERSTATE COMMEECE LAW. [Sec. 6. H. FORM OF JOINT 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. As amended by act of congress of March 2, 1889. Form and publication of export tariffs.— Every tariff of rates and charges which a common carrier, subject to the provisions of the act to regulate commerce, by itself or jointly with one or more other carriers, whether such car- riers are or are not subject to such act, shall establish for the transportation of grain, flour, meal, meats, provisions, lard, tallow, canned goods, cotton, tobacco, live stock or other articles of customary export from any point within the United States to a seaport thereof, or to any point in or on the boundary of an adjacent country, or to any foreign port or place, is required. to be filed with the Commission, and shall be made public. In re Publication of Export Tariffs', 1 1 C. C, 658. Joint tariffs, publication of. — Joint tariffs established by two or more carriers must be made public so far as the same relate to business between points which are connected by the line of any single common carrier required by the sixth section of the act to make public its schedules of rates and charges. Such tariffs must be printed in type not smaller than ordinary pica, and kept open conveniently for the use of the public at every depot or station where any business is transacted in competition with the business of a carrier whose schedules are required by law to be made public. Publication of Joint Tariffs, 1 1. C. C, 5. See, alao, section 1, A, Basing-foints and Classification. Sec. 7.] freight not to be unnecessarily interrupted. 53 I. PENALTIES FOB REFUSING TO PILE AND POST SCHEDULES. If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, suejf common carrier shall, in addition to other penalties he^in prescribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district wherein the principal office of said common carrier is situ- ated, or wherein such offense may be committed, and if such common carrier be a foreign corporation in the judicial cir- cuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel" compliance with the aforesaid provisions of this section ; and such writ shall issue in the name of the people of the United States, at the relation of the Commissioners appointed under the provis- ions of this act ; and the failure to comply with its require- ments shall be punishable as and for a contempt ; and the said Commissioners, as complainants, may also apply, in any such circuit court of the United States, for a writ of injunc- tion against such common carrier, to restrain such common carrier from receiving or transporting property among the several States and Territories of the United States, or be- tween the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several States and Territories of the United States, as mentioned in the first section of this act, until such common carrier shall have complied with the aforesaid provisions of this section of this act. As amended by act of congress of March 2, 1889. Section 7. CONTINUOUS CARRIAGE OP FREIGHT NOT TO BE UNNECESSARILY INTERRUPTED. That it shall be unlawful for any common 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 desti- 54 THE INTERSTATE COMMERCE LAW. , [Sec. 8. nation ; 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 destina- tion, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act. Breaking haul in two. — On a through and continuous line, the carrier cannot . escape responsibility for unjust charges by breaking haul in two, and calling itself a sepa- rate carrier. Brady v. Perm. E. R. Co., 2 L C. C, 131. In re Invest'n of G. T. E. E. Co., 3 L C. C, 89. Construction of section 7. — Section 7 of the act may properly be considered together with the general jurisdic- tion clause of the first section;. Boston F. & P. Ex. v. N. Y. & N. E. R R Co., 4 L C. C. (3 I. C, 493). Shipper may choose route. — "When shipper of freight gives direction to i carrier's agent as to route desired, it is the duty of such agent to so note the way-bill that such freight shall be so forwarded. Panliey v. E. & D. R E Co., 3 L C. C, 658. Section 8. LIABILITY OP CABBIES, FOE DAMAGES. That in case any common carrier subject to the provis- ions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or de- clared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common car- rier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. Sec. 9.] action foe damages. 55 Section 9. ACTION FOB DAMAGES. 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 herein- after provided for, or may, bring suit in his or their own behalf for the recovery of the damages for which such com- mon carrier may be liable under the provisions of this act, in any district or circuit court of the United States of com- petent 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 ac- tion brought for the recovery of dam'ages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or com- pany defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit ; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Judgment of Commission, when conclusive. — A final judgment in an action before the Interstate Commerce Commission, unreversed, is a bar to an action in the United States courts. Riddle v. N. Y., L. E. & W. E. E. Co., 3 I. G, 230 (IT. S. C. Ct "W. D. Penn.). Note.— The case appears in 39 Fed. Rep., 290, but is not fully re- ported. 56 THE INTEKSTATE COMMERCE LAW. [SeO. 10. Section 10. A. PENALTIES FOB VIOLATION'S OP THE ACT. That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, les- see, agent, or person, acting for or employed by such cor- poration, who, alone or with any other corporation, com- pany, person, or party, shall wilfully 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 who shall wilfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall ■ aid or abet any such omission or failure, or shall be guilty of any in- fraction 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 unlawful discrimination in rates, fares, or charges, for the transpor- tation of passengers or property, such person shall, in addi- tion to the fine hereinbefore provided for, be liable to im- prisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the dis- cretion of the court. As amended by act of congress of March 2, 1889. Indictment for violation. — A corporation cannot be in- dicted under this section. United States v. Mich. Oen. R R Co., 43 Fed. Rep., 26. The carrying of freight or passengers at a less rate than the published tariff is a violation of the law for which in- dictment will lie. United States v. Mich. Gen. R. R Co., 43 Fed. Rep., 26. SEC. 10.] O. PENALTIES FOK FALSE BILLING BY SHIPPER. 57 Limited tickets. — "Where a railroad company publishes and files with the Commission a schedule showing the issu- ance of an unlimited, and also of a limited ticket, the lat- ter to be sold at a reduced rate, without indicating the character of the limitation intended, the sale of such limited ticket at such reduced rate is not a violation of the act to regulate commerce, for which an indictment may be brought if there is in fact any substantial limitation in the use of such ticket ; the limitation in this case being the denial of stop- over privileges. United States v. Egan, 46 Fed. Rep., , B. PENALTIES FOR FALSE BILLING BY CARRIER. Any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any offi- cer 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 knowingly and wilfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof m aDy court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceed- ing two years, or both, in the discretion of the court, for each offense. As amended by act of congress of March. 2, 1889. C. PENALTIES FOR FALSE BILLING BY SHIPPER. Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and willfully, 58 THE INTERSTATE COMMERCE LAW. [SeC. 10. by false billing, false classification, false weighing, false rep- resentation 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, ©btain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is 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 not exceeding two years, or both, in the discretion of the court. Ah amended by act of congress of March 2, 1889. D. PENALTIES FOE INDUCING UNJUST DISCRIMINA- TION. If. any such person, or any officer or agent of any such corporation or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce " any common carrier subject to the provisions of this act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such per- son or such officer or agent of such corporation or company shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of com- petent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense ; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly or severally, in an action on the case to be brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom. SEC. 11.] APPOINTMENT AND TEEMS OF OFFICE. 59 Section 11. COMMISSIONERS' APPOINTMENT AND TERMS OP OFFICE. That a Commission is hereby created and established to be known as the Inter-State Commerce Commission, which shall be composed of five Commissioners, who shall be ap- pointed by the President, by and with the advice and con- sent of the Senate. The Commissioners first appointed under this act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, anno Domini eighteen hundred and eighty- seven, the term of each to be designated by the President ; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the Commis- sioner 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 Com- missioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this act, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said 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 Commis- sion. 60 THE INTERSTATE COMMEECE LAW. [Sec. 12. Section 12. POWERS AND DUTIES OP COMMISSION IN RESPECT TO THE TAKING OP EVIDENCE BY DEPOSITION OR OTHERWISE. That the Commission hereby created shall have authority to inquire into the management of the business of all com- mon 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 perform the duties and carry out the objects for which it was created ; and the Commission is hereby authorized and required to execute and enforce the provisions of this act ; and, upon the request of the Commission, it shall be the duty of auy district at- torney of the United States to whom the Commission may apply to institute in the proper Court and to prosecute under the direction of the Attorney-General of the United States, all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all viola- tions 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 attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agree- ments, and documents relating to any matter under inves- tigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission, may in- voke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the produc- tion of books, papers, and documents under the provisions of this section. And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or SEC. 12.] POWEKS AND DUTIES OF COMMISSION. 61 other person, issue an order requiring such common carrier or other person to appear before said Commission (and pro- duce books and. papers if so ordered) and give evidence touching the matter in question ; and any failure to obey such order of the court may be punished by such courias a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evi- dence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. The testimony of any witness may be taken, at the in- stance of a party, in any proceeding or investigation de- pending before the Commission, by deposition, at any time after a cause or proceeding is at issue on petition and an- swer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or in- vestigation. Such depositions may be taken before any judge of any court of the United States, or any commis- sioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the pro- ceeding or investigation. Eeasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the tak- ing of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to ap- pear and testify and produce documentary evidence before the Commission as hereinbefore provided. Every person deposing as herein provided shall be cau- tioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testi- mony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent. If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Com- mission, or agreed upon by the parties by stipulation in 62 THE INTERSTATE COMMEECE LAW. [SEC. 12. writing to be filed with the Commission. All'depositions must be promptly filed with the Commission. Witnesses whose depositions are taken pursuant to this act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the cqurts of the United States. As amended by acts of congress of March 2, 1889, and of February 10, 1891. Depositions. — When facts are not agreed upon, deposi- tions may be taken on notice, and the work should be.entered upon immediately after answer. In re Procedure, etc., 1 1. C. C, 223. Note. — This rule -was issued prior to the amendment of the law rel- ative to depositions. Subpoena duces tecum. — In laying down rules for the production of books and papers the Commission will be governed by the interstate commerce law, and also by the rules of the United States courts. The verified application should state that the same is not for the purpose of vexing or harassing defendant and is made in good faith ; and the order will be made in such a manner as to" avoid oppres- sion by allowing such examination to be made at a conven- ient place and time. Eice v. C, W. & B. R R. Co., 3 L C. C, 186. See, also, In re Counselman, 44 Fed. Rep., 268. An order for the production of books and papers by per- sons not parties to the proceeding will not be allowed unless shown to be immediately connected with the subject of the action. It will not be granted as to the production of con- tracts wherein the parties are not parties to the case in adjudication. Haddock v. B., L. & W. R R. Co., 4 L C. C. (3 L C, 302). Sec. 13.] pleadings and peactice. 63 Section 13. PLEADINGS AND PRACTICE. 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 car- rier 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 writ- ing within a reasonable time, to be specified by the Com- mission. 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 com- plainant 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. Said Commission shall in like manner investigate any complaint forwarded, by the railroad commissioner or rail- road commission of any State or Territory, at the* request of such commissioner or commission, and may institute any inquiry on its own motion in- the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. Admission by shipper. — On complaint of a soap manu- facturer alleging unjust discrimination, his previous adver- tisements will be taken as admissions of its value. Andrews Soap Co. v. P., C. & St. L. E. R Co., 4 I. C. C. (3 1 C, 77), Warner v. N. Y. Cen, & H. R R R Co., 4 I. C. C. (3 I. C, 74). Amendments.— An error in the petition whereby the receiver of the defendant railway was described as its presi- dent may be amended during the hearing. Reynolds v. W. N. Y. & P. R'y Co., 1 1. C. C, 347. 6i THE INTERSTATE COMMERCE LAW. [Sec. 13. In deciding upon applications for amendment the Com- mission acts upon the principles of a court of justice. Riddle et aL v. B. & O. R. R Co., 1 L C. C, 372. An amendment which proposes to substitute for the orig- inal complaint something quite distinct and different will not be allowed. Riddle et aL v. B. & O. R R Co., supra. The Commission is liberal in allowing amendments. Delaware State Grange, etc., v. N. Y., P. & N. R R Co., 2 I. C. C, 309. . An amendment is unnecessary in matters which would be subject of proof under the complaint as originally filed. Delaware State Grange, etc., v. N. Y., P. & N. R R. Co., supra. Assignment for hearing. — Assignments for hearing after issue joined will be made at the request of either party. In re Procedure in Cases at Issue, 1 1. C. C, 223. Attorney's fees. — The Commission is not authorized to award attorney's fees, which may be given by a court under the eighth section of the act. CouncUl v. W. & A. R R. Co., 1 1. G. C, 339. Briefs. — Parties will be heard orally or upon briefs as they prefer. In re Procedure in Cases at Issue, 1 1. C. C, 223. Burden of proof. — On complaint of excessive charge the burden of proof as to such fact is upon complainant. Fulton v. G, St P., Minn. & O. R R Co., 1 1. C. C, 104 Leonard v. U. Pac. Ry Co., 1IC. C, 185. "Where rates on defendant carrier's line are, on their face, excessive, the burden of showing the contrary is on the car- rier. McMorran et al. v. G. T. R'y Co., 3 I. C. C, 252. Spartanburg Board of Trade v. R & D. R R Co., 2 I. C. C, 304. A departure from the rule of equal mileage rates is not conclusive that such rates are unreasonable, but the burden of proof is upon the carrier. Logan et aL v. C. & N. "W. R'y Co., 2 I. C. 0., 604 Sec. 13.] pleadings and peaotioe. 65 Articles classified alike are presumptively entitled to equal rates, and if a difference is made the carrier assumes the burden of sustaining such difference by evidence. McMorran et al v. G. T. R'y Co., 3 I C. C, 253. N. Y. Board of Trade et al. v. Penn. R. R. Co., 4 I. C. C. (3 I. C, 417). The fact that a rate sheet has been filed raises no pre- sumption of its legality. San Bea-nardino Bd. of T. v. A., T. & S. F. R R. Co., 4 L C. C. (3 I. C, 138). Carriers not parties. — The Commission has no power to order carriers not parties to the proceeding to raise their rates on a given commodity. Poughkeepsie Iron Co. v. N. Y. Cen. & H. R R. R Co., 4 I. C. C. (3 I. C, 248). Cases prior to act. — A complaint of unjust discrimina- tion cannot be made to embrace cases which occurred before the act was passed, even though similar. ' Ottinger v. Sou. Pac. R R Co., 1 I. C. G, 144. Collateral inquiry not determined. — Evidence intro- duced at hearing for the single purpose of proving the just- ness or unjustness of a rate will not be considered except as to its bearing on that question. Business Men's Assoc, of Minn. v. C. & N. W. R'y Co., 2 I. C. C, 73. Complaint. — A complaint under the fourth section which simply states that the unlawful preference was given by maintaining a higher ra'te for the shorter distance, although not stating that such charge was made under substantially similar circumstances and conditions, is sufficient. San Bernardino Board of Trade v. A., T. & S. F. R R Co., 4 I. C. C. (3 L C, 138). Complaint will not be filed. — When a complaint states no reasonable ground for investigation it will not be filed. La Crosse M. and J. Union v. C, M. & St. P. R'y Co. et al., 1 1. C. C, 629. Nor will an informal complaint be filed when it appears that the differences in conflict affect large sections of coun- s 66 THE INTEESTATE COMMEECE LAW. [SeO. 13. try over which the carriers are endeavoring to adjust rates equitably. In such case the Commission will wait until the complaint is in such shape that all parties may be heard. McMillan et aL v. W. CL Com., 4 L C. C(3 I. C, 282). Depositions. — When facts are not agreed to, depositions may be taken on notice and the work should be entered upon immediately after answer. In re Procedure, etc.* 1 1. C. C, 223. Note. — This rule was issued prior to the amendment of the law rel- ative to depositions. Dilatory proceedings. — Dilatory proceedings are con- sidered by the Commission objectionable. In re Procedure Concerning Questions of Law, 1 L C. C, 224 See Motion to dismiss, post. Dismissal without prejudice. — Where complaint is de- fective dismissal should be without prejudice. White v. KC.RR Co. et al„ 3 L C. C, 281. Evidence. — See Admission by shippee; Burden of peoof; Collateeal inquiby not deteemined ; Depositions ; Limited tickets ; Oedee not made without evidence ; Peesumption wheee no answee filed; reheaeing ; subposna duces tecum; Schedules as evidence; Witness. Investigation by Commission on its own motion. — The Commission may investigate course pursued by carriers in i respect to compliance with provisions of the law on its men motion. In re Tariffs, etc., of A. & W. P. R R Co., 3LC. C, 19. Rice et al v. W. N. Y. & P. R R Co., 3 I. C. C, 87. In re Investigation, etc., G. T. R'y Co., 3 L C. C, 89. In re Food Products (2d case), 4 I. C. C. (3 I. C.,151). Jury trial. — Commission will not go into the question of money damages, in a case where defendant is entitled to jury trial. Councill v. W. & A. R R. Co., 1 1. C. C, 339. See section 16, D, and section 1, A. limited tickets. — Where a railroad company publishes and files with the Commission a schedule showing the issu- Sec. 13.] pleadings and practice. 67 anoe of an unlimited ticket and also a limited ticket, the latter to be sold at a reduced rate, without indicating the character of the limitation intended, the sale of such limited ticket at such reduced rate is not a violation of the act for which an indictment may be brought if there is in fact any substantial limitation in the use of such ticket ; the limita- tion in this case being the denial of stop-over privileges. United States v. Egan, 46 Fed. Rep., . It is within the province of the Commission, upon the fil- ing of schedules of limited tickets, to require carriers to indicate wherein such limitation shall consist, and in such case the carrier would be bound by the answer. United States v. Egan. 46 Fed. Rep., . Modification of order. — "Where suit is on appeal from the circuit courts of the United States, the Commission will still make an order in the premises which may be modified thereafter. Keith et aL v. Kentucky Cen. R R Co. et al., 1 L C. G, 189. Motion to dismiss. — A motion to dismiss will be denied if the petition set forth one good ground for investigation. Haddock v. D., L. & W. R. R Co., 4 L C. C. (3 L C, 302). Notice of hearing. — When a carrier has been called upon to justify an apparent violation of the law, notice will be given to the public and to other carriers in order that all may participate in the hearing. In re C, St. P. & K. C. R'y Co., 2 L C. C, 231. Order, none where no controversy. — Commission will not express opinions on abstract questions presented on ex pwte application, and without an existing controversy. In re Order of Railway Conductors, 1 1 C. C, 8. In re Disabled Soldiers, etc., 1 L C. C, 28. In re Iowa Steel Barb Wire Co., 1 L C. C, 17. Order not made without evidence. — No order can be made against a- railway company on a complaint which is not supported by evidence. Holbrook et aL v. St P., M. & M. R. R. Co., 1IC. C, 102. In re Sou. Pac. R R Co., 1 L C. C, 6. '68 THE INTERSTATE COMMEKCE LAW. [SeO.| 13. Parties. — "When a complaint is made against one of sev- eral companies forming a line for long and short haul traffic, it is proper that all of such companies be made parties, since each company may have an interest to be heard. B. & A. E. E. Co. v. B. & L. E. E. Co., 1 1. C. C, 158. Allen et al. v. L., N. A. & C. E. E. Co., 1 1. C. C, 199. Harwell et al. v. C. & N.W. E. E. Co., 1 I. C. C, 236. Eiddle et aL v. P. & L. E. E E. Co., 1 1. C. C, 490. Hurlburt v. L. S. & M. S. E'y Co., 2 I. C. C, 122. Spartanburg Board of Trade v. E. & D. E. E. Co., 2 L C. C, 304 N. O. Cotton Exch. v. C, N. O, & T. Pac. E. E. Co., 2 L C. C, 375. Mich. Cong. W. Co. v. C. & G. T. E'y Co., 2 I. C. C, 594 ' Penn. Co. v. L., N. A & C. E'y Co., 3 I. C. C, 223. Hamilton et al v. C. E & C. E. E Co., 4 I. C. C. (3 I. C, 482). A complaint cannot be sustained against a classification committee. It must be made against the railway compa- nies who are charged with^ the violation of the law. McMillan v. Western CI. Com., 4 I. C. C. (3 I. C, 282). Personal interest. — Personal as distinguished from pub- lic interest in the controversy is not necessary. See section 1, A Persons having an interest in a pending question may be heard without being made formal parties. Hurlburt v. L. S. & M. S. E'y Co., 2 I. C. C, 122. Pending proceedings. — The amendment of March 2, 1889, expressly provides that the law shall not affect pend- ing proceedings. Eawson T. N. N. & M. V. E E Co., 3 I. C. C, 266. Place of hearing. — A case involving local rates may be heard at a central poinfr in the territory immediately af- fected by such rates. Delaware, St. Grange, etc., v. N. Y., P. & N. R E Co., 2 I. C. C, 309. Note, — This is a common practice of the Commission. Presumption where no answer filed. — Where no answer to a' complaint is filed the allegations of the complaint will be taken as true. Jackson v. St. Louis, A & T. E'y Co., 11 C. C, 184 Sec. 13.] pleadings and practice. ,69 Prima facie case.— A prima facie case of unjust dis- crimination is not shown by the mere exhibition of two tickets, one of which is transferable and the other not, when the two do not appear to be similar. Ottinger v. Sou. Pac. R R Co., 1 L C. C, 144. Rehearing. — The Commission will not direct a rehear- ing involving expense to parties appearing before the Commission for a re-argument unless satisfied that such re-argument might have the effect of changing the result of what the Commission has already done. Riddle et al v. P. & L. B. R R Co., 1 L C. C, 490. After a case has been decided and no party to the pro- ceeding has applied for a rehearing, an application for a re- hearing made by persons not parties to the proceeding will not be granted. In re Petition of Produce Exch. of Toledo, 2 L C. C, 588. A petition for a rehearing should show prima faoie that material testimony has been overlooked. Myers v. Perm. Co. et aL, 3 I. C. C, 130. Proctor et aL v.. C. H. & D. R R Co., 4 I. C. C. (3 I. C, 374). Upon a petition for a rehearing, the additional evidence showing merely that the former order should be vacated, no further order will be made. Bates et al. v. Penn. R R Co., 4 I. C. C. (3 I C, 296). A petition for a rehearing should be verified, and should indicate the nature of the new testimony and its purpose. Rice et al v. W. N. Y. & P. R R Co., 3 I. C. C, 87. Relief conceded before decision. — When after trial but before decision the defendant concedes the relief sought, and reduces its tariff to the rates claimed, no order will be made or opinion pronounced by the Commission. Manufacturers' & J. Union of MarJiato v. M. & St P. R R Co., 1 I. C. C, 227. Lincoln Board of Trade v. U. Pac. R'y Co. et al., 2 I. C. C, 229. Savery et aL v. N. Y. C. & H. R R R Co., 2 I. C. C, 338. Penn. Co. v. L., N. A. & C. R R Co., 3 I. C. C, 223. Bishop v. Duvall, Rec. of F. R & N. Co., 3 I. C. C, 128. Rawson v. N. N. & M V. R R Co., 3 I. C. C, 266. N. O. Cotton Ex. v. L., N. Q. & T. Pac. R R Co., 4 1. C. C. (3 L C, 523). 70 THE INTERSTATE COMMERCE LAW. [SEC. 13. Replication.— A replication is not required under prac- tice before the Commission. In re Proc. in Cases at Issue, 1 1. C. C, 223. Or. S. L. E'y Co. v. N. Pac. R R. Co., 3 L C. C, 264. Schedules as evidence. — Contracts and tariffs which are required to be and are filed with the Commission may be considered in any case before the Commission without being formally offered in evidence. Boston Fruit & Produce Exch. v. N. Y. & N. E. R R Co., 4 I. C. C. (3 L C, 493). State courts, non-interference with. — See section 1, A. Subpoena duces tecum. — Inlaying down rules for the production of books and papers the Commission will be governed bj' the interstate commerce law, and also by the practice and rules of the United States courts. The verified application should state that, the same is not for the purpose of vexing or harassing defendant and is made in good faith ; and the order will be made in such a manner as to avoid oppression by allowing such examination to be made at a convenient place and time. Rice v. C. W. & B. R R Co., 3 L C. C, 186. (Examine, also, the Counselman Case, 44 Fed. Rep., 268.) An order for the production of books and papers by per- sons not parties to the proceeding will not be allowed unless shown to be immediately connected with the subject of the action. It will not be granted as to the production of con- tracts wherein the parties are not parties to the case under adjudication. Haddock v. D., L. & W. R R Co., 4 I. C. C. (8-1 C, 302). Yerified petition and investigation. — Under the fourth section no order for relief will be made except upon veri- fied petition and after investigation. In re Sou. Pac. R R. Co., 1 1. C. C, 6. Tiolation prior to ruling. — A carrier should not be prosecuted for alleged violations of a ruling of the Com- mission which occurred before such ruling was made. Slater v. N. Pac. R'y Co., 2 I. C. C, 359. Sec. 14.] b. eepoets of decisions. 71 Witness' competency. — The maker of a classification schedule is not competent to testify as to his understanding of its construction. Hurlburt v. L. S. & M. S. R'y Co., 2 I. C. C, 122. Witness, privilege. — A witness cannot refuse to produce books and papers on the ground that they will tend to criminate him, when he shows that he is not guilty of the offense charged ; nor on the ground that they would tend to criminate the company, as such railroad company is not liable criminally for violations of the interstate commerce law. In re Peasley, 44 Fed. Rep., 271. Section 14. A. FINDINGS OF FACT. That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writ- ing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, together with its recommendation as to what repa- ration, if any, should be made by the common carrier to any party or parties who may be found to have been in- jured ; and such findings so made shall thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found. Decision of Commission, when binding. — A decision of the Interstate Commerce Commission which determines that certain companies are not subject to the act, having been acted upon by such companies, should be followed, unless clearly erroneous. United States v. Morsman, 42 Fed. Rep., 448. B. REPORTS OF DECISIONS. All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be fur- nished to the party who may have complained, and to any common carrier that may have been complained of. 72 THE INTERSTATE COMMEECE LAW. [Se(3. 15. The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such au- thorized publications shall be competent evidence of the reports and decisions of the Commission therein contained, in all courts of the United States, and of the several States, without any further proof or authentication thereof. The Commission may also cause to be printed for early distribu- tion its annual reports. As amended by act of congress of March 2, 1889. Section 15. NOTICE TO CARRIER AFTER INVESTIGATION. That if in any case in which an investigation shall be made by said Commission it shall be made to appear to the satis- faction of the Commission, either by the testimony of wit- nesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said Commission, by any com- mon carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done,' or both, within a reasonable time, to be specified by the Commission; and if, within the time specified, it shall be made to appear to the Commission that such common carrier has ceased from such violation of law, and has made reparation for the in- jury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law. Evidence. — Contracts and tariffs which are required to be filed with the Commission may be considered in any case before the Commission. Boston F. & P. Ex. v. N. Y. & N. E. R. E. Co., 4 1 C. C. (3 I C, 493). SEC. 16.] PETITION TO UNITED STATES CIKOUIT OOUKTS. 73 Section 16. PETITION" TO UNITED STATES CIRCUIT COURTS ON VIOLATION OE ORDER OF COMMISSION AND PRO- CEEDINGS THEREON. That whenever any common carrier, as defined in and subject to the provisions of this act, shall violate, or refuse or neglect to obey or perform any lawful order or require- ment of the Commission created by this act, not founded upon a controversy requiring a trial by jury, as provided by the seventh amendment to the Constitution of the United States, it shall be lawful for the Commission or for any company or person interested in such order or requirement, to apply in a summary way, by petition, to the circuit court of the United States sitting in equity in the judicial district in which the common carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or disobedience, as the case may be ; and the said court shall have power to hear and determine the matter, on such short notice to the common carrier complained of as the court shall deem reasonable ; and such notice may be served on such common carrier, his or its officers, agents, or servants in such manner as the court shall direct ; and said court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and pro- ceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises ; and to this.end such court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition ; and on such hearing the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated ; and if it be made to appear to such court, on such hearing or on report of any such person or persons that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation or disobe- dience of such order or requirement of. said Commission, and enjoining obedience to the same ; and in case of any 74 THE INTERSTATE COMMERCE LAW. £SeC. 16. I disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such 'court to issue writs of attachment, or any other process of said court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ, of injunction, or other proper process, mandatory or otherwise; and said court may,, if it shall think fit, make an order directing such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in de- fault the sum of five hundred dollars for every day, after a day to be named in the order, that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise ; and such moneys shall be payable as the court shall direct, either to the party com- plaining or into court, to abide the ultimate decision 'of the court, or into the Treasury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in personam in such court. "When the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal ; but such appeal shall not* operate to stay or supersede the order of the court or the execution of any writ or process thereon ; and such court may, in every such matter, order the payment of such costs and counsel fees as shall be deemed reason- able. Whenever any such petition shall be filed or pre- sented by the Commission it shall be the duty of the district attorney, under the direction of the Attorney-General of the United States, to prosecute the same; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. If the matters involved in any such order or requirement of said Commission are founded upon a controversy requir- ing a trial by jury, as provided by the seventh amendment to the Constitution of the United States, and any such com- Sec. 16.] petition to united states circuit courts. 75 mon carrier shall violate or refuse or neglect'to obey or per- form the same, after notice given by said Commission as provided in the fifteenth section of this act, it shall be law- ful for any company or person interested in such order or requirement to apply in a summary way by petition to the circuit court of the United States sitting as a court of law in the judicial district in which the carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or disobedience as the case may be ; and said court shall by its order then fix a time and place for the trial of said cause, which shall not be less than twenty, nor more than forty days from the time said order is made, and it shall be the duty of the marshal of the district in which said proceeding is pending to forthwith serve a copy of said peti- tion, and of said order, upon each of the defendants, and it shall be the duty of the defendants to file their answers to said petition within ten days after the service of the same upon them as aforesaid. At the trial the findings of fact of said Commission as set forth in its report shall be prima facie evidence of the matters therein stated, and if either party shall demand, a jury or shall omit to waive a jury the court shall, by its order, direct the marshal forthwith to summon a jury to try the cause ; but if all the parties shall waive a jury in writing, then the court shall try the issues in said cause and render its judgment thereon. If the sub- ject in dispute shall be of the value of two thousand dollars or more either party may appeal to the Supreme Court of the United States under the same regulations now provided by law in respect to security for such appeal ; but such ap- peal must be taken within twenty days from the day of the rendition of the judgment of said circuit court. If the judg- ment of the circuit court shall be in favor of the party com- plaining, he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fixed by the court, which shall be collected as part of the costs in the case. For the purposes of this act, excepting its penal provisions, the cir- cuit courts of the United States shall be deemed to be always in session. As amended by act of congress of March 2, 1889. 76 THE INTEKSTATE COMMERCE LAW. [SeCS. 17, 18. Section 17. POWER OP COMMISSION TO MAKE RULES OP PRACTICE. That the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the Com- mission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any hear- ing or 'proceeding in which he has any pecuniary interest. Said Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall con- form, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said Com- mission and be heard, in person or by attorney. Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. ' Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirmations and sign subpoenas. As amended by act of congress of March 2, ,1889. See section 13, and Rules of practice. Section 18. SALARIES OP COMMISSIONERS, SECRETARY, ETC. That each Commissioner shall receive an annual salary of seven thousand five hundred dollars, payable in the same manner as the judges of the courts of the United States. The Commission shall appoint a secretary, who shall re- ceive an annual salary of three thousand five hundred dol- lars, payable in like manner. The Commission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper perform- ance of its duties. Until otherwise provided by law, the ' Commission may hire suitable offices for its use, and shall SeCS. 19, 20.] REPORTS OF CARRIERS TO COMMISSION. 77 have authority to procure all necessary office supplies. Wit- nesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. All of the expenses, of the Commission, including all nec- essary expenses for transportation incurred by the Commis- sioners, or by their employes under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor ap- proved by the chairman of the Commission. As amended by act of congress of March 2, 1889. Note.— See Bulks of practice. Section 19. OFFICES AND PLACE OF HEARING-. That the pr incipal office of the Commission shall be in the city of Washington, where its general sessions shall be held ; but whenever the convenience of the public or the parties may be promoted or delay or expense prevented thereby, the Commission may hold special sessions in any part of the United States. It may, by one or more of the Commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier sub- ject to the provisions of this act. Note.— See Rules of practice. Section 20. REPORTS OF CARRIERS TO COMMISSION. That the Commission is hereby authorized to require an- nual reports from all common carriers subject to the pro- visions of this act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the Commission may need information. Such annual re- ports shall show in detail the amount of capital stock issued, 78 * THE INTERSTATE COMMEECE LAW. [Sec. 21. the amounts paid therefor, and the manner of payment for the same ; the dividends paid, the surplus fund, if any, and the number of stockholders ; the funded and floating debts and the interest paid thereon ; the cost and value of the carrier's property, franchises, and equipments ; the number of employees and the salaries paid each class ; the amounts ' expended for improvements each year, how expended, and the character of such improvements ; the earnings and re- ceipts from each branch of business and from all sources ; the operating and other expenses; the balances of _ profit and loss ; and a complete exhibit of the financial operations of the carrier each year, including an annual balance-sheet. Such reports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts with other common carriers, as the Commission may require ; and the said Com- mission may, within its discretion, for the purpose of enabling it the better to carry out the purposes of this act, prescribe (if in the opinion of the Commission it is practicable to pre- scribe such uniformity and methods of keeping accounts) a period^ of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept. Section 21. REPORTS TO CONGRESS. That the Commission shall, on or before the first day of December in each year, make a report, which shall be transmitted to Congress, and copies of which shall be dis- tributed as are the other reports transmitted to Congress. This report shall contain such information and data collected by the Commission as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recommendations as to additional legislation relating thereto as the Commission may deem necessary ; and the names and compensation of the persons employed by said Commission. As amended by act of congress of March 2, 1889. Sec. 22.] exceptions as to beduced bates, eto. 79 Section 22. EXCEPTIONS AS TO REDUCED BATES, PASSES AND •PENDING LITIGATION. That nothing in this act shall prevent the carriage, stor- age, or handling of property free or at reduced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in such transportation, or the issuance of mileage, excursion, or. commutation passen- ger tickets ; nothing in this act shall be construed to pro- hibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to inmates of the National Homes or State Homes for Disabled Yolunteer Soldiers, and of Soldiers' and Sailors' Orphan Homes, in- cluding those about to enter and those returning home after discharge, under arrangements with the boards of managers of said homes ; nothing in this act shall be construed to pre- vent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees ; and nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in ad- dition to such remedies : Provided, That no pending litiga- tion shall in any way be affected by this act. As amended by act of congress of March 3. 1889. Commutation tickets. — It is not an unjust discrimina- tion to refuse to refund the fare paid on a commutation ticket good for a specified time, after the time had expired, or to exact under rules of a company twenty-five cents ad- ditional fare. Sidman v. E. & D. R. R. Co., 3 L C. C, 512. Commercial travelers. — Commission has no power to compel railway companies to give commercial travelers per- 80 THE INTERSTATE COMMERCE LAW. [SEC. 22. mission to take an extra allowance of baggage without special charge. Traders' & Travelers' Union v. P. & R R R. Co., 1 1 C. C, 122. See Mileage tickets, post. Complaint. — A complaint under the fourth section which simply states that the unlawful preference was given by maintaining a higher rate for the shorter distance, although not stating that such charge was made under substantially similar circumstances and conditions, is sufficient. San Bernardino Board of Trade v. A., T. & S. F. R R Co., 4 1 C. C. (3 I. C, 138). Complaint will not be filed. — "When a complaint states no reasonable ground for investigation it will not be filed. La Crosse M. J. Union v. C, M. & St P. R'y Co. et al., 1 1. C. C, 629. Impartiality. — Mileage tickets when issued must be sold impartially. . Assoc. Wholesale Grocers of St. Louis v. Mo. Pac. R R. Co., 1 L C. C, 156. Indian supplies excepted. — See section 1, A. Immigrant rates. — A discrimination cannot be sustained by extending half fares to immigrants moving to sparse settlements where land is cheap. Elvey v. I1L Cen: R R Co., 3 I. C. C, 652. On the question of the authority of the Commission to control immigration, see Savery v. N. Y. Cen. & H. R R R Co., 2 L C. C, 338. Limited tickets. — Where a railroad company publishes and files with the Commission a schedule showing the issu- ance of an unlimited ticket and also a limited ticket, the latter to be sold at a reduced rate, without indicating the character of limitation intended, the sale of such limited ticket at the reduced price so published is not a violation of the act for which an indictment may be brought, if there is in fact any substantial limitation in the use of such ticket ; the limitation in this case being the denial of stop-over privileges. United States v. Egan, 46 Fed, Rep., — . SEC. 22.] EXCEPTIONS AS TO EEDUCED KATES, ETC. 81 It is the province of the Commission, upon the filing of schedules of limited tickets, to require carrier to indicate wherein such limitation shall consist, and in such case the carrier would he bound by the answer. United States v. Egan, 46 Fed. Rep., — . Mileage, excursion and commutation tickets.— Mile- age, excursion and commutation tickets are issued for dif- ferent purposes, and the price for each, therefore, is deter- mined by different considerations. They should be sold impartially to all who apply for them, and on the same terms. Ass'n W. Grocers of St. Louis v. Mo. Pac. R'y Co., 1 1. C. G, 156. Mileage tickets. — Mileage tickets must be sold impar- tially to all the public who apply for them. It is not com- petent to sell them to commercial travelers or particular classes of persons. The exception in the twenty-second section of the act does not exempt the carrier. Larrison v. C. & G. T. R'y Co., 1 1. C. C, 147. Passenger excursion rates must be published. — Pas- senger excursion rates are required to be published accord- ing to the provisions of section 6 of the act. P., C. & St. L. R'y Co. v. B. & O. R. R Co., 3 I. C. C, 465. Passes. — Section 2 of the interstate commerce act in effect prohibits the giving of passes or free carriage to par- ticular persons, and the exception allowed in section 22, in favor of officers and employees of the road, does not include the families of such persons. Ex parte Koehler, 31 Fed. Rep., 315. Pending proceedings. — The amendment of March 2, 1389, expressly provides that the law shall have no appli- cation to pending proceedings. Rawson v. N. N.&ET.LR Co., 3 I. C. C, 266. Retaliation. — A complaint made for the purpose of a financial wrong in the revocation of plaintiff's pass does not commend itself to the Commission. Slater v. N. Pac. R'y Co., 2 L C. G, 359. 6 82 THE INTERSTATE COMMERCE LAW. [Sec. 23. Special privileges; — See section 1, A, Power to compel CARRIER TO GIVE SPECIAL PRIVILEGES. Settler's tickets.— The sale of land-explorer's tickets at less than regular rates, as practiced by the defendant, is objectionable. But there is no illegality in the company selling tickets with an agreement attached that in case the purchaser should buy lands from the company, a part of the price of a ticket, or the whole of it, shall be allowed as payment upon the land purchase. Smith v. Nor. Pac. R. E. Co., 1 I. C. C, 308. United States Fish Commission within exception.— The United States Commission of Fish and Fisheries being one of the agencies of government, the transportation of fish and fish eggs so distributed falls within the twenty-second section of the act. In re U. S. Com. of Fisheries, 1 1. C. C, 21. Section 23. MANDAMUS TO CAKBIERS. The circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said com- mon carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ: Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of premptory mandamus may issue, notwithstanding such question of fact is undetermined;, upon such terms as* Sec. 23.] mandamus to carriers. 83 to security, payment of money into the court,, or otherwise, as the court may think proper, pending the determination of the question of fact : Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement. A new section; being sec. 10 df ch. 382 of the acts of congress of 1889. Mandamus, when not granted.— The court cannot grant a mandamus where the petitioner fails to make out a case of unjust discrimination. United States v. D., L. & W. R'y Co., 40 Fed Rep., 101. RULES OF PRACTICE. EULES OP PEACTICE IN CASES AND PROCEEDINGS BEFORE THE COMMISSION. PUBLIC SESSIONS. I. The general sessions of the Commission for the hearing of contested cases will be held at its office in the Sun build- ing No., 1315 F street, northwest, Washington, D. C, on such days and at such hour as the Commission may desig- nate. Sessions for receiving, considering, and acting upon peti- tions, communications, and applications relating to business before the Commission, and also for considering and acting upon any business of the Commission other than contested cases, will be held at its said office at 11 o'clock A. M: on Monday of every week when the Commission is at Wash- ington. - When special sessions are held at other places such regu- lations as may be necessary will be made by the Commis- sion. Investigation by Commission on its own motion. — The Commission may investigate course pursued by carriers in respect to compliance with provisions of the law on its own motion. In re Tariffs, etc., of A. & W. P. R. R Co., 3 I. C. C, 19. Eice et aL v. W. N. Y. & P. R R Co., 3 L C. C, 87. , In re Investigation, etc., G. T. R. R Co., 3LC. C, 89. In re Food Products, 4 I C. C. (3 I. C, 151). Place of hearing. — A case involving local rates may be heard by the Commission at a central point in the territory immediately affected by such rates. Delaware State Grange v. N. Y., P. & N. R. R Co., 2 L C. C, 309. Note. — This is a common practice of the Commission. 86 THE INTERSTATE COMMERCE LAW. PARTIES. II. Where a complaint concerns only anything done or omitted to be done by a single carrier no other need be made a party, but if it relates to joint tariffs, or matters in which two or more carriers doing business under a common control, management, or arrangement, for a continuous car- riage or shipment, are interested, all the carriers consti- tuting such line must be made parties. A complainant may embrace several carriers, or lines of carriers, operated separately, in the same proceeding, when the subject-matter of the complaint involves substantially the same alleged violation of the law by the several carriers or lines. Persons or carriers not parties may apply, in any pending case or proceeding, for leave to intervene and to be heard upon the questions involved. Carriers not parties. — ■ The Commission has no power to order carriers not parties to the proceeding to raise their fates on a given commodity. Poughkeepsie L Co. v. N. Y. Cen. & R R R R Co., 4 I. C. C. (3 L C, 248). Parties. — When a complaint is made against one of several companies forming a line for long and short haul traffic, it is proper tliat all of such companies be made parties, since each company may have an interest to be heard. B. & A. R. R Co. v. B. & L. R. R Co., 1 1. C. C, 158. Allen et al v. L., N. A & C. R. R Co., 1 1. C. C, 199. Harwell et aL v. C. & W. R R. Co., 1 1. C. C, 236. Riddle et al. v. P. & L, E. R. R. Co., 1 1. C. C, 490. Hurlburt v. L. S. & M. S. R'y Co., 2 1 C. C, 122. Spartanburg Board of Trade v. R & D. R R Co., 2 L C. C, 304. N. O. Cotton Exch. v. C, N. O. & T. Pao. R R Co., 2 I. C. C, 375. Mich. Cong. W. Co. v. C. & G. T. R'y Co., 2 I. C. C, 594. Penn. Co. v. L., N. A. & C. R'y Co., 3 L C. C, 223. Hamilton et al. v. C. R & C. R R Co., 4 L C. C. (3 I. C, 482). Persons having an interest in a pending question may appear and be heard, without being made formal parties. Hurlburt v. L. S. & M. S. R'y Co., 2 I. C. C, 122. KULES OF PRACTICE. 87 A complaint cannot be sustained against a classification committee. It must be made against the railway compa- nies who are charged with the violation of the law. McMillan v. W. CL Com., 4 1. C. C. (3 I. C, 282): COMPLAINTS UNDER SECTION 13. III. Complaints under section 13 of the act, of anything done or omitted to be done by any common carrier subject to the provisions of the act in contravention of the provis- ions thereof, must be made by petition, which must briefly state the facts which are claimed to constitute a violation of the act, and must be verified by the petitioner, or by some officer or agent of the corporation, society, or other body or organization making the complaint, to the effect that the allegations of the petition are true to the knowledge or belief of the affiant. The complainantmust furnish as many written or printed copies of the complaint or petition as there may be parties complained against to be served. When a complaint is made the name of the carrier or carriers complained against must be set forth in full, and the address of the petitioner, and the name and address of his attorney or counsel, if any, must be indorsed upon the complaint. The Commission will cause a copy of the complaint to be served upon every common carrier complained against, by mail or personally, in its discretion, with notice to the car- rier or carriers to satisfy the complaint or to answer the same in writing within the time specified. Cases prior to act.— A complaint of unjust discrimina- tion cannot be made to embrace cases which occurred be- fore the act was passed, even though similar. Ottinger V. Sou. Pac. R R Co., 1 I. C. C, 144 Complaint.: — A complaint under the fourth section which simply states that the unlawful preference was given by main- taining a higher rate for the shorter distance, although not stating that such charge was made under substantially sim- ilar circumstances and conditions, is sufficient. San Bernardino Board of Trade v. A., T. & S. K R R Co., 4LC.C. (3 I. C, 138). 88 THE INTEBSTATE C0MMEKCE LAW. Complaint will not Ibe filed. — When a complaint states no reasonable ground for investigation it will not be filed. La Crosse It & J. Union v. C, M. & St. P. R'y Co. et al, 1 L C. C, 629. ISTor will an informal complaint be filed when it appears that the differences in conflict affect large sections of country over which the carriers are endeavoring to adjust the rates equitably. In such case the Commission will wait until the complaint is in such shape that all parties may be heard. McMillan et al v. W. CL Com., 4 I C. C. (3 I C, 282). Personal interest.— Personal, as distinguished from pub- he, interest in the controversy is not necessary. See section 1, A. Yerified petition and investigation.-^- Under the fourth section no order for relief will be made except upon verified petition and after investigation. In re Sou. Pac. R R. Co., 1 L C. C, 6. ANSWERS. IV. A carrier complained against must answer the com- plaint made within twenty days from the date of the notice, unless the Commission shall in particular cases prescribe a shorter time for the answer to be served, and in such cases the answer must be made within the time prescribed. The original answer must be filed with the Commission, at its office in Washington, and a copy thereof must at the same time be served upon the complainant by the party answer- ing, personally, or by mail, who must forthwith notify the Secretary of the Commission of the fact. The answer must admit or deny the material allegations of fact con- tained in the complaint, and may set forth any additional facts claimed to be material to the issue. The answer must be verified in the same manner as the complaint. • If a car- rier complained against shall make satisfaction before an- swering, a written acknowledgment of satisfaction must be filed with the Commission, and in that case the fact of satis- faction without other matter may be set forth in the answer filed and served on the complainant. If satisfaction be RULES OF PEACTIOE. 89 f made after the filing and service of an answer, a supple- mental answer setting forth the fact of satisfaction may be filed and served. Presumption where no answer filed. — Where no an- swer to a complaint is filed, the allegations of the com- plaint will be taken as true. Jackson v. St Louis, A. & T. E'y Co., 1 L C. C, 184 Replication. — A replication is not required under prac- tice before the Commission. In re Proc. in Oases at Issue, 1 1. C. C, 223. Or. S. L. E'y Co. v. N. P. R E Co., 3 L C. G, 264. [NOTICE OF HEAEING ON COMPLAINT.] Y. If a carrier complained against shall deem the com- plaint insufficient to show a breach of legal duty, it may, instead of fifing an answer, serve on the complainant notice for a hearing of the case on the complaint ; and in case of the service of such notice, the facts stated in the complaint will be taken as admitted. A copy of the notice must at the same time be filed with the Commission. The filing of an answer will not be deemed an admission of the sufficiency of the complaint, but a motion to dismiss for insufficiency may be made at the hearing. Dilatory proceedings.— Dilatory proceedings are consid- ered by the Commission objectionable. In re Procedure Concerning Questions of Law, 1 L C. C, 224 See Motion to dismiss, post. Dismissal without prejudice. — Where complaint is de- fective dismissal should be without prejudice. White v. M. C. E R Co. et aL, 3 I. C. C, 281. Motion to dismiss. — A motion to dismiss will be denied if petition set forth one good ground for investigation. Haddock v. D., L & W. E E Co., 4 L C. C. (3 L C, 302). 90 THE INTEKSTATE COMMERCE LAW. SERVICE OF PAPER& VL Copies of notices or other papers must be served upon the opposite parties to the proceeding, personally or by mail, and when any party shallhave appeared by attor- ney the service upon the attorney shall be deemed proper service upon the party. AFFIDAVITS. VII. Affidavits to a petition, complaint, or answer may be taken before any officer of the .United States, or of any State or Territory, authorized to administer oaths. AMENDMENTS. VIII. Upon application by any petitioner or party, amend- ments may be allowed by the Commission, in its discretion, to any petition, answer, or other pleading in any proceed- ing before the Commission. Amendments.- — An error 'in the petition whereby the receiver of the defendaut railway is described as its pres- ident may be corrected by amendment 'during the. hearing. Reynolds v. W. N. Y..& P. R'y Co., 1 L C. C, 347. In deciding, upon applications for amendment the Com- mission acts upon the principles of a court of justice. Riddle et al. v. B. & O. R R Co., 1 1. C. C, 372. An amendment which proposes to substitute for the orig- inal complaint something quite distinct and different will not be allowed. Riddle et al v. B. & O. R R Co., supra. The Commission is liberal in allowing amendments. Delaware State Grange, etc., v. N. Y., P. & N. R R Co., 2 I. C. C, 309. An amendment is unnecessary in matters which would be subject of proof under the complaint as originally filed. Delaware State Grange, etc., v. N. Y., P. & N. R R Co., supra. ADJOURNMENTS AND EXTENSIONS OF TIME. IX. Adjournments and extensions of time may be granted upon the application of parties in the discretion of the Com- mission. RULES OF PRACTICE. 91 STIPULATIONS. X. Parties to cases and proceedings before the Commis- sion may, by stipulation, duly signed by them and filed with the Secretary, agree upon the facts, or any portion of the facts; they deem to be involved in the controversy, which agreed statement shall be regarded and used as evidence. It is desirable that the facts be thus agreed upon whenever practicable. HEARINGS. XI. Upon issue being joined by the service of answer, the Commission will assign a time and place for hearing the same, whichwill.be at its office in "Washington, unless other- wise ordered. Witnesses will be examined orally before the Commission, unless testimony be taken by deposition under section XII, or facts agreed upon as otherwise provided in these rules. The petitioner or complainant must in all cases prove the existence of the facts alleged' to constitute a vio- lation of the act, unless the carrier complained of shall ad- mit the same, or shall fail to answer the complaint. Facts alleged in the answer must also be proved by the carrier, unless admitted by the petitioner. In case of failure to answer, the Commission will take such proof of the charge as may be deemed reasonable and proper, and make such order thereon as the circumstances of the. case appear to require. Admission by shipper. — On complaint of a soap manu- facturer alleging unjust discrimination, his previous ad- vertisements will be taken as admissions of its value. Andrews Soap Co. v. P., C. & St L. R R Co., 4 I. C. C. (3 I. C, 77). Warner v. N. Y. Cen. & H. R R R Co., 4LC.C. (3 I. C, 74). Assignment for hearing. — Assignment^ for hearing after issue joined will be made at the request of either party. In re Procedure in Cases at Issue, 1 1. C. C, 223. Attorney's fees. — The Commission is not authorized to award attorney's fees, which may be given by a court under the eighth section of the act. Councill v. W. & A. R R Co., 1 L C. C, 339. 92 THE INTEKSTATE COMMERCE LAW. Briefs. — Parties will be heard orally or upon briefs as they prefer. In re Procedure in Cases at Issue, i I. C. C, 223. Burden of proof. — On complaint of excessive charge, the burden of proof as to such fact is upon complainant. Fulton v. G, St. P., Minn. & O. R E. Co., 1 1. C. G, 104. Leonard v. U. Pac. R'y Co., 1 1. G G, 185. Where rates on defendant carrier's line are, on their face, excessive, the burden of showing the contrary is on the carrier. McMorran et al v. G. T. R'y Co., 3 I. G C, 252. Spartanburg Board of Trade v. R & D. R. R Co., 2 L G G, 304 A departure from the rule of equal mileage rates is not conclusive that such rates are unreasonable, but the burden of proof is upon the carrier. Logan et aL v. G & N. W. R'y Co., 2 I G G, 604. Articles classified alike are presumptively entitled to equal rates, and if a difference is made the carrier assumes the burden of sustaining such difference by evidence. McMorran et al. v. G. T. R'y Co., 3L G G, 252. N. Y. Board of Trade et al v. Penn. R R Co., 4 I. G G (3 L G, 417). The fact that a tariff sheet has been filed raises no pre- sumption of its legality. San Bernardino Bd. of T. v. T. & S. F. R R Co., 4 L G G (3 L G, 138). Collateral inquiry not determined. — Evidence intro- duced at hearing for the single purpose of proving the just- ness or unjustness of a rate will not be considered except as to its bearing on that question. Business Men's Assoc, of Minn. v. G & N. W. R'y Co., 2 I. G G, 73. Evidence. — See section 13. Jury trial. — Commission will not go into questipn of money damages in a case where defendant is entitled to jury trial. Councill v. W. & A. R R Co., 1 L G G, 839. See section 16, D, and section 1, A. UTILES OF PEAOTIOE. 93 Modification of order. — "Where suit is on appeal from the circuit courts of the United States, the Commission will still make an order in the premises which may be modified thereafter. Keith et al v. Ky. Cen. B B Co. et al, 1 L C. C, 189. Notice of hearing. — "When a carrier has been called upon to justify an apparent violation of the law, notice will be given to the public and to other carriers in order that all may participate in the hearing. In re C, St. P. & K. C. E'y Co., 2 I C. C., 231. Order; none where no controversy. — Commission will not express opinions on abstract questions presented on ex parte application, and without an existing controversy. In re Order of E'y Conductors, 1 L C. C, 8. In re Disabled Soldiers, etc., 1 1. C. C, 28. In re Iowa Barb Steel Wire Co., H C. C, 17. Order not made without evidence. — No order can be made against a railway company on a complaint which is not supported by evidence. Holbrook et al. v. St. P., M. & M. E R Co., 1 1. C. C, 102. In re Sou. Pac. E E Co., 1 1 C. C, 6. Relief conceded before decision. — "When after trial but before decision the defendant concedes the relief sought and reduces its tariff to the rates claimed, no order will be made or opinion pronounced by the Commission. Manufacturers' & J. Union of Mankato v. M. & St. P. E E Co., 1 L C. C, 227. Lincoln Board of Trade v. U. Pac . E'y Co. et al., 2 L C. C, 229. Savery et al v. N. Y. C. & H. B B R Co., 2 L C. C, 338. Penn. Co. v. L., N. A. Secretary. No. 9. Subpoena. Interstate Commerce Commission. To , You are hereby required to appear before in the matter of a com- plaint of against , as a witness on the part of , on the day of , 188 — , at o'clock, at , and bring with you then and there the . Dated . [Seal] , Commissioner. t Attorney for . [Notice. — Witness fees for attendance under this subpoena are to be paid by the party at whose instance the witness is summoned, and every copy of this summons for the witness must contain a copy of this notice.] No. 10. Notice of taking depositions under Rule XII. Interstate Commerce Commission. J A.B. against The Railroad Company. You are hereby notified that G. H. will be examined before C. D., a [title of officer or magistrate], at , on the day of , 18 — , at 104: THE INTERSTATE OOMMEECE LAW. o'clock in the noon, as a witness for the above-named com- plainant [or, defendant, as the case may be], according to act of congress in such case made and provided, and the rules of practice of the Inter- state Commerce Commission ; at which time^ and place you are notified to be present and take part in the examination of the said witness. Dated , , 18—. , LJ. [Signature of complainant or defendant, or of counsel] To A. B., the above-named complainant [or, The Railroad Com- pany, the above-named defendant; or, To.K. L., counsel for the above- named complainant or defendant]. Note. — The Commission recommends that the conditions upon which witnesses may be examined under sections 863 and 864 of the Eevised Statutes [p. 97, tiiipra] before one of the officers designated be waived, and that parties con- sent in all cases to take testimony in that manner when practicable. APPENDIX. ENGLISH LEGISLATION. Extract from the Railways Clauses Consolidation Act. (1845.) Seo. 90. And whereas it is expedient that the company- should be enabled to vary the tolls upon the railways so as to accommodate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of prejudicing or favoring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the company or of particular parties ; it shall be lawful, therefore, for the company, subject to the provisions and limitations herein and in the special act con- tained, from time to time to alter or vary the tolls by the special act authorized to be taken, either upon the whole or upon any particular portions of the railway, as they shall think fit ; provided that all such tolls be at all times charged equally to all persons, and after the same rate, whether per ton, per mile, or otherwise, in respect of all passengers, and of all goods or carriages of the same description, and con- veyed or propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same circumstances ; and no reduction or advance in any such tolls shall be made either directly or indirectly in favor of or against any particular company or person traveling upon or using the railway. Extract from an Act for the Better Regulation of the Traffic on Rail- ways and Canals. (July 10, 1854.) 2. Every railway company, canal company, and railway and canal company, shall/according to their respective pow- ers, afford all reasonable facilities for the receiving and.for- warding and delivering of traffic upon and from the several railways and canals belonging to or worked by such com- panies, respectively, and for the return of carriages, trucks, boats, and other vehicles ; and no such company shall make 106 APPENDIX. or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever ; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and every railway company and canal company and railway and canal company having or work- ing railway or canals which form a continuous line of rail- way or canal or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals or rail- ways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the sevei'al companies, be at all times afforded to the public in that behalf. GENERAL INDEX. Act for the benefit of the public 2 Action for damages (section 9) 55 Address of the Commission, Rule 17 96 Adjournments and extensions of time, Eule 9 .... 90 Admission by shipper 63, 91 Affidavits, Rule 7 90 Aggregate charge 9 Aggregate charge increases with distance while rate per ton per mile decreases 9 Amendments, Rule 8 90 Amendments 63,90 Amount of freight 9, 27 Amount of through and local business 10 Analysis of freight 10 Answers, Rule 4 88 Apportionment of rates 10 Arbitrary charges 10 " Arrangement " in first section construed 2 Assignment for bearing 64, 91 Attempt by carrier to affect market price 10 Attorney's fees 2,64,91 Authority to inquire 2 Barb wire. See " Table of Subjects." Basing-points 10, 28 Bitters. See " Table of Subjects." Bonded debt 11 Breaking haul in two 11, 54 Bridges. See " Table of Subjects." Briefs 64,92 Bulk 11 Burden of proof 11, 64, 92 ' Car-load lots 12,28 Carriage at a loss . . . 2, 12, 28 Carriers de facto 3 Carriers must adjust tariffs 12 108 GENEKAL INDEX. Carriers not parties 3, 65, 86 Cars. See " Table of Subjects." Cartage. See " Table of Subjects." Cases prior to act . 3, 65, 87 Cattle. See "Table of Subjects." Character of commodity 13 Circumstances and conditions 28 Circumstances must be similar 29, 42 Classification 13, 29 Coal. See " Table of Subjects." Collateral inquiry not determined 3, 65, 92 Colored persons. See " Table of Subjects." Combination rates 14, 30 Commercial travelers 30, 79 Commissioners' appointment and terms of office (section 11) . 59 Commodity rates 30 Commissions to agents 41 Commutation tickets 30, 79 Comparison of rates 14 Comparison of through routes 14 Comparison with other articles 30 Competition 14,43 Competition not an excuse 30 Complaint 65,80,87 Complaints. See " Table of Subjects." Complaiuts under section 13, Rule 3 87 Complaint will not be filed 65,80,88 Compressing cotton, cost of 15 Confusion resulting from reduction of rates . . . . 15 Construction of section 7 54 Continuous carriage of freight not to be unnecessarily interrupted ^(section 7) 53 Contracts between railroads ........ 31 Copies, Rule 16 96 Copies of schedules, rates, charges and files to be filed with the •Commission (section 6, B) 50 Corn. See " Table of Subjects." Cost of production 15 Cost of service 16 Cotton. See " Table of Subjects." Criminal prosecution. See "Table 'of Subjects." Decision of the Commission, when binding 71 Depositions . . 62, 66, 94 Device 31 Dilatory proceedings 66, 89 GENERAL INDEX. 109 Discrimination by method of rate making 81 Discrimination by special rates 31 Dismissal without prejudice 66, 89 Distance 16 Distance not always controlling 16 Dividend on capital stock 16 Division of through rates 16 Emigrants. See " Table of Subjects.'' Emigration 3 ■ Empty cars 17 Encouragement of carriers' business 33 Evidence 17,66,72 Exceptions as to reduced rates, passes and pending litigation (sec- tion 22) ■ . . 70 Excursion and mileage tickets 3, 81 Ex parte application 3 Express companies. See "Table of Subjects.'' Express companies within the act 4 Export tariffs must be filed 47 Facilities for interchange of traffic (seotion 3, B) . . . . 40 Facilities for interchange of traffic 40 Facilities for traffic 32 Findings of fact (section 14, A) 71 Fish. See " Table of Subjects." Fixed charges 17 Food products. See " Table of Subjects." Foreign carriers 4 Foreign railways. See " Table of Subjects." Form and publication of export tariffs 52 Form of joint schedules (section 6, H) 52 Form of tariffs 48 Former rates 17 Free caTtaga 32 Free passes 32 Fruits, dried. See " Table of Subjects." Fruits, fresh. See "Table of Subjects." Furnishing companies 32 Geographical situation 17 Good faith '. 33 Grain. See " Table of Subjects." Group rates 18, 33, 43 Hearings, Rule 11 91 Hog and hog products. See " Table of Subjects." Hub blocks. See " Table of Subjects." 110 GENEEAL INDEX. Immigrant rates 80 Immigrants. See " Table of Subjects." Immigration > ' , . . . 4 Impairing validity of contract 4 Indian supplies. ~ See "Table of Subjects." Impartiality . . . . 80 Indian supplies excepted 80 Indictment for violation 50, 56 Initial expenses 18, 33 Instrumentalities 4 Insufficient justification 43 Intention of shipper 5 Interest in question 68 Interstate commerce, what is 5 Intrastate commerce 5 Investigation by Commission on ite own motion r . . .66, 85 Iron. See "Table of Subjects." Joint raises, duplication of under 47 Joint rates cannot be compelled 5 Joint rates may violate 44 Joint rates must be filed, how 47 Joint rates not to be deviated from (section 6, G) .... 51 Joint tariffs, publication of 52 Judgment of commission, when conclusive .... 55 Jurisdiction (section 1, A) 1 Jurisdiction over intrastate roads ....... 5 Jury trial . 66, 92 Knowledge of all facts necessary 18 Length of haul ' 18 Liability of carrier for damages (section 8) 54 Liberal construction "5 Like kind of traffic in sections 2 and 4 construed .... 33 Light traffic 18 Limited tickets 51,57,66,80 Local rates 18, 33, 44 Local and through rates defined 18, 34, 44 Long and short haul (section,4) 42 Low rates » . . 18 Lumber 18 Lumber. See " Table of Subjects." Mandamus to carriers (section 33) 82 Mandamus, when not granted 83 Market cost *" 19 GENEKAL INDEX. Ill Medicines. See "Table of Subjects." Merchandisa See " Table of Subjects." Mileage basis 19 Mileage, excursion and commutation tickets 34, 81 Mileage tickets . . . 34,81 Milk. See " Table of Subjects." / Milk rates 34 Milling in transit 19,34 Mineral water. See "Table of Subjects." Modification of order 67, 93 Money damages 6 Motion to dismiss 67, 89 Notice of advances 48 Notice of change in joint rates (section 6, F) 51 Notice of change of rates, (section 6, C) 49 Notice of hearing 67, 93 Notice of hearing on complaint, Rule 5 89 Notice to carrier after investigation (section 15) . . . .78 Offices of Commission and place of hearings (section 19) . . 77 Operating expenses . . .19 Order, none where no controversy . . '. . . . 67, 93 Order not made without evidence . . . . ■ . . 67, 93 Other articles consumed ........ 19 Parallel lines owned by same carrier 19 Parties 68, 86 Parties, Rule 2 86 Party rates 34 Passenger, excursion rates must be published . . . . 48, 81 Passenger rates 35 Passes . . . . -. . • 33,81 Passes. See " Table of Subjects." Penalties for false billing by carrier (section 10, B) ... 57 Penalties for false billing by shipper (section 10, C) . . . 57 Penalties for inducing unjust discrimination (section 10, D) . .57 Penalties for refusing to file and post schedules (section 6, 1) . 53 Penalties for violations of the act (section 10, A) . . . . 56 Pending proceedings . . 6, 68, 81 Personal interest 6, 68, 88 Petition to United States circuit courts on violation of order of Commission and proceedings thereon (section 16) . . . 78 Petroleum. See " Table of Subjects." Place of hearing 68,85 Place of publication 48 112 GENERAL INDEX. Pleadings -and practice (section. 13) ...... 68 Pooling (section 5) 68 Population along the line 19 Possible consequences of rate changes 19 Posting of schedules (section 6, A) 46 Posting of schedules of foreign freight (Section 6, B) . . . 49 Power of Commission to make rules of practice (section 17) . 76 Power of Commission to compel carrier to give special privileges 6 Power of Commission to compel carrier to receive private cars . 7 Power to compel carrier to raise rates 7 Power to compel joint rates 7 Power to determine reasonable rates 8 Power to regulate commerce .:..... 8 Powers and duties of Commission in respect to the taking of evi- dence by deposition or otherwise (section 12) . . . . 60 Practice. See " Table of Subjects ; " also Pleading and Practice, section 13. Preference by equipment . . 35 Presumption by filing 48 Presumption where no answer filed . . ... 68, 89 Previous classifications not injurious 20 Prima facie, case .' 69 Prima fade rates 20 Printing of pleadings, etc., Rule 15 96 Private cars 35 Privileges. See Special privileges. Profitable rates not conclusive 20 Proportion of through rates . . . . . . .36 Proportion of through rate should be reasonable . . . .20,35 Proportion to local traffic 20 Proposed findings of fact, Rule 13 95 Proviso in fourth section . 44 Public notice of rates 48 Public sessions, Rule 1 . . . ' 85 Published rates not to be deviated from (section 6, D) . . . 50 Race distinctions 35 Railroads must first fix rates 20, 44 Rates in general See " Table of Subjects.'' Rates, power to compel joint . . . . . . 7 Rates, power to determine reasonable 8 Rates, relative. See " Table of Subjects." Rates, relatively reasonable 20, 36 Rates made by connecting roads 20, 36 Rates, through. See " Table of Subjects." "Reasonable" and "just" defined '21 GENERAL INDEX. 113' Reasonable rates (section 1, B) 9 Reasonable rates, a judicial question 32 Reasonable rates, how determined 21 Rehearing 69,95 Rehearings, Rule 14 95 Relief conceded before decision 69, 93 Relief from section 4. See, " Table of Subjects." Replication 70,89 Reports of carriers to Commission (section 20) .... 77 Reports of decisions (section 4, B) 71 Reports to congress (section HI) 78 Responsibility for through rates 22 Retaliation 81 Return-loads 22 Revenue 22 Risk 22 Salaries of Commissioners, secretary, etc. (section 18) . . . 76 " Same line " construed ........ 43 Schedules as evidence 70 Schedules, foreign 48 Sea-board consignments 36 Service of papers, Rule 6 90 Settlers' tickets 36, 82 Shipments by particular roads ■ 22 Shipper may choose route 54 Similar articles 22 Similar circumstances and conditions 36 Small and large towns -. . .22,37 Soap. See "Table of Subjects." Special privileges 8 Special train service • 23 State courts, no interference with 8 State roads. See " Table of Subjects." Stipulations, Rule 10 91 Stoppage in transit 37 Storage capacity . .......... 23 Subpoena duces tecum . . 62, 70, 94 Substantially similar circumstances and conditions. See Similar circumstances and conditions ....... 36 Sugar. See " Table of Subjects." Tank cars 38 Tariffs. See " Table of Subjects." Tariffs, inland, of importations 49 Through billing 23,37 8 114 GENEEAL INDEX., Through rates . . . .23,37 Through rates de facto 24 Through rates favored ... . . . . « 24 Through rates matter of agreement . . . . . . 24 Through rates must be reasonable .24 Through rates, responsibility £5, 38 Through shipments 25, 38 Ticket brokers .38 Tickets. See " Table of Subjects." Tickets, failure to purchase 38 Tickets, partially unused 38 Ties. See " Table of Subjects." Trackage rights 8 Trade centers . . . 25, 39 Trade centers. See "Table of Subjects." Traffic associations 49 Two methods of shipment provided . . . . . . 25, 39 Underbilling. See " Table of Subjects." Underbilling a device 39 Undue preference (section 3, A) 40 United States contracts for Indian supplies 8 United States Fish Commission within the exception . . .8,82 Unjust discrimination (section 2) 27 Unreasonably low rate3 25 Unsettling of rates 26 Use to the public 25 Value 26 "Verified petition and investigation 70, 88 Violation prior to ruling 70, 93 Volume of business . . 26 "Water, carrier by Water competition 45 Way-bills 26,39 Weight 26 Wheat and wheat products. See " Table of Subjects." Witness, competency of 71 Witness, privilege . 71 Witnesses and depositions, Rule 12 94 .KP 2276 .53 WV7 Author .Wentworth, John ^. Vol. Title - Interstate Commerce Law. . . Copy . Date Borrower's Name