T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Shippers and Carriers OF Interstate Freight EDGAR WATKINS, LL. B. Of the Atlanta (Ga.) Bar CHICAGO t. h. flood and company Law Book Publishers 1909 Copyright, 1909 by EDGAR WATKINS T 1909 PREFACE. No branch of the hiw is more important than that discuss- ing the relative rights and duties of shippers and carriers of in- terstate freight, and no branch of the law is less generally knoAMi than that relating to those rights and duties. The pur- pose of this book is to help those who may be called upon to ad- vise as to such rights and duties to an understanding of this interesting phase of the law. In approaching the subject the experience of an active prac- titioner was drawn upon to determine what would be most use- ful, not only to the legal profession, but to traffic men, whether in the employ of the carriers or of those bureaus organized all over the country to aid and advise shippers. From tliis experience, it was thought that where the state of the authorities justified, the law should be given as nearly as might be in the language of the courts having final authority to annomice that law. For this reason, in those questions that have been definitely determined, liberal quotations have been inserted. Many questions, however, affecting the subject of this book have not yet been determined. "Where this is true, the opinions of the Federal courts, and of the Interstate Commerce Com- mission, and in some instances the State courts, on subjects analagous to that imder discussion, have been referred to and discussed. In tliis way it has been sought to deduce the prin- ciples of law. The Act to Regulate Commerce has been annotated not only with the decisions of the courts but also with the opinions of the Interstate Commerce Commission. This will enable any one de- siring to investigate a particular provision of that act to trace the construction thereof by the references that have been made thereto by the tribunals whose duty it is to enforce this great statute. The Sherman Anti-Trust Law, the Twenty-Eight Hour Law, and other statutes affecting the question are cited and discussed 5 7558 '^P 6 Preface. in so far as they may relate to the subject under investigation. Statutes such as the Safety Appliance Act, the Employer's Lia- bility Act, the Arbitration Act, the Hours of Service Act, the Corporation Tax Provision, and other acts, a knowledge of which may be necessary to those who, as practitioners or others having to do with the enforcement of those laws, are required to advise or act with reference thereto, are inserted. "While few lawyers have given special attention to the ques- tions herein discussed, the widening scope of interstate com- merce, makes it necessary that all practitioners shall be ready to advise clients as to the rights and liabilities growing out of the law relating to transportation of this commerce. Claims for overcharge, for loss and damage on shipments moving from one state to another arise in the business of most manufacturers, jobbers, and merchants. The law fixing the rights growing out of such shipments is found in the statutes and decisions of the Federal Government. To make more read- ily available and understandable the laws is the purpose of this work. With what success that purpose has been effected must be determined by those who may make use of what is herein set down. The author will be well pleased if the result of his labors should be to make clearer and more widely Imown this inter- esting and difficult branch of our law. EDGAR WATKINS. Atlanta, Georgia, October, 1909. TABLE OF CONTENTS. CHAPTER I. VALIDITY AND SCOPE OF THE ACT TO EEGULATE COMMERCE § 1. Common law obligations of common carriers. 2. Power of Congress over interstate commerce. 3. Constitutionality of the act to regulate commerce. 4. Eeasons for the act to regulate commerce. 5. Carriers included in the act. 6. Carriers duties under the act. 7. What transjiortation included in the act. 8. Powers and procedure of the commission. 9. Court procedure with reference to the orders of the commission. CHAPTER II. ALL SERVICES RENDERED BY COMMON CARRIERS IN THE TRANSPORTATION OF PERSONS OR PROPERTY OR IN CON- NECTION THEREWITH MUST BE JUST AND REASONABLE. § 50. All charges must be reasonable. 51. Cost of carriers' equipment. 52. Cost of service. 53. Value of service. 54. Value of the commodity, its general utility and danger of loss. 55. Competition or its absence considered in determining reasonable- ness of rate. 56. Rates affected by amount of tonnage. 57. Distance and rate per ton mile. 58. General business conditions. 59. Rates long in existence are presumed to be reasonable. 60. Grouping territory and giving each group same rate legal under some circumstances. 61. Basing point system. 62. Comi)arisons between different lines as a means of determining correct rates. 63. Car load and less than car load movements as affecting the rate. 64. Relation of through rates to the total of the local rates. 65. The public interest must be considered in making rates. 66. Through routes and joint rates. 67. General princii)les applicable to the question, what is a reasonable rate? 7 8 Table of Contents. CHAPTER III. EQUALITY IN RATES. § 7.1. Common law as to equality in rates by common carriers. 7(». Comparison of the English railway and canal act with the act to regulate commerce. 77. Discrimination forbidden. 78. Discrimination against individuals. 79. Undue preference in favor of persons, localities or traffic. 80. Facilities for interchange of traffice and rates and charges to con- necting lines must be without undue or unreasonable preference. 81. Discrimination by charging more for a shorter than a longer haul. 82. Discrimination between car loads and less than car loads. 83. Classification of commodities should be without discrimination. 84. Milling in transit. 85. Ecbilling illegal and discriminatory. 86. Discrimination by making payments to elevators and others ele- vating and sacking grain. 87. Cars must be furnished without discrimination. 88. Right of carrier to route shipments beyond its own terminus. 89. Discrimination in billing. 90. Tariffs of rates must be printed, posted and maintained. 91. Different rates over the same line in opposite directions. 92. Discrimination by granting free service. 93. Commodities clause — Illegal for carriers to transport commodities produced or owned by them or in which they are interested. 94. Basing points and group rates. 95. Rebates. CHAPTER IV. ENFORCEMENT BY THE COMMISSION OF THE ACT TO REGU- LATE COMMERCE. § 1.50. General statement of the functions of the commission. 1.51. Appointment and general duties of the commission. 152. Power of the commission to relieve from the long and short haul clause. 153. The commission's duty with reference to schedules of rates. 154. Reparation. 155. Reparation to whom paid. 156. Reparation by whom paid. 157. Reparation protest unnecessary. 158. Reparation an inadequate remedy. 1.59. Reparation, limitation on complaint for. 160. Commission may make investigations without complaint. 161. Commission may ask for the aid of courts to enforce law. 162. Rehearings by the commission. Table of Contents. 9 163. Commission has power to prescribe rates for the future. 164. Commission has power to make regulations which carriers must obey. 165. Commission may establish through routes and joint rates and pre- scribe the division of the joint rate. 166. Procedure before the commission. 167. Rules of procedure prescribed by the commission. 168. Forms prescribed by the commission. CHAPTER V. ENFORCEMENT BY THE COURTS OF THE ACT TO REGULATE COMMERCE, INCLUDING A DISCUSSION OF THE EFFECT GIVEN BY THE COURTS TO THE ORDERS AND FINDINGS OF THE COMMISSION. § 200. Jurisdiction of the courts of the states to enforce provisions of the act to regulate commerce. 201. The enforcement of the provision making initial carrier liable for loss and damage. 202. Jurisdiction of the courts of the United States to compel the at- tendance of witnesses before the commission and enforce obedi- ence to the act. 203. Jurisdiction of the courts to enforce orders of the commission. 204. The effect to be given by courts to orders of the commission re- quiring carriers to desist from some particular practice. 205. Orders of reparation. Effect given by the courts. 206. The force of the commission's orders fixing rates. Rules and practices to be observed in the future. CHAPTER VI. POWER OF THE COURTS OF THE UNITED STATES TO PREVENT AN ILLEGAL ADVANCE IN RATES. § 250. Basic principles supporting the right to enjoin the exaction of an illegal rate. 251. Injunction against an illegal rate prior to the act to regulate com- merce. 252. Injunctions against an illegal rate since the jiassage of the act to regulate commerce and prior to the Abilene Case. 253. Such injunctions by circuit courts since the Abilene Case. 254. The question in the circuit courts of appeal. 255. Constitutional and statutory provisions affecting the question. 270. Conclusion. 271. Venue of suits to enjoin carriers from making an unreasonable advance. 10 Table op Contents. CHAPTER VII. STATE LAWS OR EEGULATIONS AFFECTING INTERSTATE TRANSPORTATION. § 300. Scope of chapter. 301. Regulation of movement of trains. Sunday law. 302. Same subject. Speed of trains. 303. Same subject. Requirement that trains shall stop at particulaj stations. 304. Same subject. Connections witli other carriers and with private switch tracks. 30.5. Demurrage charges, 306. Furnishing cars. 307. Separate coach laws. 308. Long and short haul clause in state law. 309. State laws forbidding the consolidation of competing common carriers. 310. Quarantine laws of states. 311. Laws to promote the security and comfort of passengers. 312. State regulation of carriers and their employees. 313. Laws limiting or enlarging the common law liability of carriers. 314. Penalties for failure to pay claims. CHAPTER VIII. ACTS OF CONGRESS INDIRECTLY AFFECTING INTERSTATE TRANSPORTATION. § 400. Scope of chapter. 401. The twentyeight hour law. 402. Sherman antitrust law. 403. Safety appliance acts. 404. Employers' liability act. 405. Enforcement by state courts of rights under the safety appliance and employers' liability acts. 406. Arbitration act. 407. Corporation tax law. CHAPTER IX. ACTS REGULATING COMMERCE. Including act approved February 4, 1887, chapter 104, effective April 5, 1887, 24 Stat. L. 379, U. S. Comp. Stat. 1901, P. 3154, 3 Fed. Stat. Ann. 809, et. seq. Known as the Cullom Act. Amendment of March 2, 1889, 25 Stat. L. 855, Chap. 382, U. S. Comp. Stat. 1901, p. 3158, 3 Fed.' Stat. Ann. 852, et. seq. Table of Contents. 11 Amendment of February 10, 1891, Chapter 128, 26 Stat. L. 743, U. S. Comp. Stat. 1901, p. 3163, 3 Ted. Stat. Ann. 839. Amendment of February 8, 1895, Chap. 61, 28 Stat. L. 643, U. S. Comp. Stat. 1901, p. 3171, 3 Fed. Stat. Ann. 851. Act February 11, 1893, 27 Stat. L. 443, Chap. 83, U. S. Comp. Stat. 1901, p. 3173, 3 Fed. Stat. Ann. 855. Known as the Testimony Act. Act February 11, 1903, Chapter 544, 32 Stat. L. 823, U. S. Comp. Stat. Supp. 1907, 10 Fed. Stat. Ann. 199. Known as the Expediting Act. Act February 19, 1903, Chap. 708, 32 Stat. L. 847, U. S. Comp. Stat. Supp. 1907, p. 880, 10 Fed. Stat. Ann. 170. Known as the Elkins Act. Act February 25, 1903, Chap. 755, 32 Stat. L. 903, 10 Fed. Stat. Ann. 173, being section one of the Appropriation Act. Act January 29, 1906, 34 Stat. L. 584, Chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892, Fed. Stat. Ann. Supp. 1907, p. 167. Known as the Hepburn Act. Act June 30, 1906, Chap. 3920, 34 Stat. L. 798, U. S. Comp. Stat. Supp. 1907, p. 900, Fed. Stat. Ann. Supp. 1907, p. 382. Act April 13, 1908, 35 Stat. L. 60, Chap. 143. § 500. Scope of act to regulate commerce. 501. Not applicable to intrastate transportation. 502. Terms ' ' common carrier, " " railroad, ' ' and ' ' transportation ' ' de- fined. 503. Duty of carrier to furnish transportation and to establish through routes. 504. All transportation charges must be reasonable. 505. Free service, with certain exceptions, prohibited and penalties pre- scribed. 506. Eailroad companies prohibited from transporting commodities in which they are interested, with certain exceptions. 507. Terms under which switch connections shall be made. 508. Definition and prohibition of unjust discrimination. 509. Undue and unreasonable preference jirohibited. 510. Carriers shall accord reasonable and equal facilities for inter- change of traffic. 511. Rule as to long and short hauls. 512. Pooling of freights and division of earnings prohibited. 513. Carriers shall file, print and keep public schedules of rates. 514. Eegulations as to printing and i^osting schedules of rates for freight moving through foreign countries from and to any place in the United States. 515. No change of schedules of rates shall be made without notice. 516. Names of all carriers parties to schedules must be specified. 517. Carriers shall file contracts relating to traffic arrangements. 518. Commission may prescribe form of schedules. 519. No carrier shall participate in interstate commerce unless tht charges therefor are published, and no such carrier shall deviate from the published schedules. 520. Preference and precedence may be given military traffic in time of war. 12 Table op Contents. 521. Corporations violating the act to regulate commerce guilty as indi- viduals and punishment prescribed. 522. Rebate. Punishment for oflfering, granting, soliciting or ac- cepting. 523. Act of officer or agent, wlion binding. 524. Carrier filing or participating in rate bound thereby. 525. Forfeiture for rebating in addition to penalties. Limitation of six years fixed. 526. Contracts and combinations to prevent continuous carriage of freight prohibited. 527. Damages and attorneys' fees allowed for violations. 528. Where to sue for damages. Compulsory attendance of witnesses and production of papers. 529. Penalties for violations of the act. 530. Penalties for false billing, false classification, false weighing, etc., by carriers. 531. Penalties against shippers for false billing, etc 532. Penalties and damages for inducing discriminations. 533. Appointment and term of office of commissioners. 534. Power and duty of commissioners. 535. Power of courts to punish for disobedience, witness not excused because testimony may incriminate. 536. Right to take testimony by deposition and the manner thereof prescribed. 537. Persons who may file complaints before the commission and prac- tice with reference thereto. 538. Reports of commission on investigations, how made and published. 539. Power of commission to determine and prescribe just and reason- able rates, regulations and practices. 540. When orders take effect and how long continue unless modified or set aside by the commission or a court. 541. Division of joint rate may be prescribed by commission. 542. Through routes and joint rates may be established by commis- sion. 543. Charges for instrumentalities furnished by shipper must be rea- sonable. 544. Enumeration of powers of commission not exclusive. 545. Award of damages shall be made by commission after hearing. 546. Carrier failing to comply with order for reparation, suit may be brought thereon in United States circuit courts, the order being prima facie evidence of right to recover. 547. Limitation on action for damages. 548. All parties jointly awarded damages may sue as plaintiffs against all carriers parties to the award. 549. Service of orders of commission. 550. Commission may suspend or modify its orders. 551. Punishment for knowingly disobeying an order issued under sec- tion fifteen. Table of Contents. 13 552. District attorney and attorney-general to prosecute. Special at- torneys may be employed. 553. Courts may enforce obedience to commission's orders, mandatory or otherwise. 554. Appeals to supreme court, priority of hearing. 555. Venue of suits to enjoin, set aside, annul, or suspend an order of the commission. 556. Expediting act applicable to such suits as well as suits to enforce orders of commission. 557. Limitation on right to grant injunction against commission's order. Provisions for appeal from interlocutory order, 558. Schedules, contracts, etc., must be filed with the commission, and, when filed, original or certified copy prima facie evidence. 559. Eehearings may be granted by the commission. 560 Procedure before the commission. 561. Salaries and expenses of the commission. 562. Principal office of commission in Washington, but may prosecute inquiries elsewhere. 563. Annual reports required and what they shall contain. Penalties for failure to make. 564. Commission may prescribe form of keeping accounts and inspect same. 565. Penalties for failure to keep accounts and for falsifying the record. 566. Penalty for an examiner divulging information received as such. 567. United States circuit and district courts may, upon application, of Attorney General at request of commission, enforce provisions of act. 568. Commission may employ agents or examiners. 569. Eeceiving carrier liable for loss, remedy cumulative. 570. Annual reports by commission to Congress. 571. Circumstances under which reduced or free fares and rates may be given. 572. Existing remedies not abridged or altered. Pending litigation not affected. 573. Interchangeable mileage tickets, how issued. 574. Discrimination may be prevented by vrrit of mandamus, remedy cumulative. 575. Number, terms, qualifications, salary and appointment of com- missioners. 576. Existing laws as to obtaining testimony applicable to act. 577. Kepealing conflicting laws not to affect pending suits. 578. Time of taking effect of act. 579. Parties defendant other than carriers in suit to enforce provisions of act. 580. Equitable proceedings may be instituted by the commission to re- strain discrimination or departure from published rates. 581. Immunity and compulsory attendance of witnesses, production of books and papers, 14 Table of Contents. 582. Expediting act applicable to suits brought uiulcr direction of at- torney-general. 583. Eepealing clause not affecting pending suits or accrued rights. When act takes effect. 584. Certain cases given precedence and hearing expedited. Hearing before three judges. 585. Direct appeal to Supreme Court. 586. Compulsory attendance of witnesses and production of papers pro- vided for. 587. Amendment to act making compulsory attendance of witnesses and production of papers. CHAPTER X. Act to prevent cruelty to animals while in interstate transit, known as the 28-hour law act June 29, 1906, Chapter 3594, 34 Stat. L. 607, U. S. Comp. St. Supp. 1907, p. 918, Fed. Stat. Ann. Sup. 1907, p. 25. Act March 4, 1907, Chapter 2907, 34 Stat. L. 1260, et. seq., requiring inspection of meat. § 590. Time prescribed for feeding and unloading animals in transit. 591. Feeding shall be at expense of owner, lien given for food. 592. Penalty. 593. Meat inspection act. CHAPTER XI. TKUSTS AND OTHER COMBINATIONS IN RESTRAINT OF TRADE. Act July 2, 1890, Chapter 647, 26 Stat. L. 210, U. S. Compiled Stat. 1901, p. 3200, 7 Fed. Stat. Ann, 336. § 600. Contracts, combinations and conspiracies in restraint of interstate commerce illegal. 601. Monopolies and conspiracies and combinations to monopolize in- terstate trade illegal. 602. Prohibition applies to territories and between states and terri- tories. 603. Courts given jurisdiction to enjoin violation of act. 604. Practice with reference to parties and service of subpoena thereon. 605. Property owned under a contract violating this act being in course of interstate transportation may be seized and forfeited. 606. Measure of damages in favor of person injured. 607. Person includes corporation and association. 608. Act of August 28, 1894, so far as it relates to trusts and com- binations in restraint of trade. APPENDICES. A. An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. An Act to amend an act entitled "An act to promote the safety of em- ployees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving- wheel brakes, and for other purposes, ' ' approved March second, eighteen hundred and ninety-three, and amended April first, e^ighteen hundred and ninety-six. C. An act requiring common carriers engaged in interstate commerce to make full reports of all accidents to the Interstate Commerce Commission. An Act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon. E. An act to promote the safety of employees on railroads. r. An act to promote the safe transportation in interstate commerce of ex- plosives and other dangerous articles, and to provide penalties for its violation. G. An Act relating to the liability of common carriers by railroad to their employees in certain cases. H. An Act concerning carriers engaged in interstate commerce and their em- ployees. I. Porporation Tax Act. 15 TABLE OF CASES CITED. (Eeferences are to Sections.) A. Aberdeen Group Commercial Asso. v. IMobile & 0. R. Co. (10 I. C. C. R. 289), 509, 511. Addyston Pipe & Steel Co. v. United States (175 U. S. 211, 44 L. Ed. 136, 20 Slip. Ct. 96, 1 Fed. Anti-Trust Dec. 1009), 600, 603, 605. Alabama & Vicksburg R. Co. v. Railroad Com. of IMiss. (203 U. S. 496, 51 L. Ed. 298, 27 Sup. Ct. 163), 85. Alexander v. United States (201 U. S. 117, 50 L. Ed. 686, 26 Sup. Ct. 356, 2 Fed. Anti-Trust Dec. 945), 600. Allen V. Louisville, N. A. & C. R. Co. (1 I. C. C. R. 199, 1 I. C. R. 621), 511. Allen V. Oregon R. & Nav. Co. (98 Fed. 16), 504. Allender v. Chicago, B. & Q. R. Co. (16 I. C. C. R. 103), 528. American and Other Express Companies v. United States (212 U. S. 522, 53 L. Ed. , 29 Sup. Ct. ,), 5, 92, 500, 505, 571. American Asphalt Asso. v. Uintah Ry. Co. (13 I. C. C. R. 196), 504. American Banana Co. v. United Fruit Co. (160 Fed. 184), 606. American Banana Co. v. United Fruit Co. (166 Fed. 261, C. C. A. ), 606. American Banana Co. v. United Fruit Co. (213 U. S. 347, 53 L. Ed. , 29 Sup. Ct. ),606. American Biscuit & Utg. Co. v. Klotz (44 Fed. 721, 1 Fed. Anti- Trust Dec. 2), 600. American Brake Beam Co. v. Pungs (141 Fed. 923, 73 C. C. A. 157, 2 Fed. Anti-Trust Dec. 826), 600. American Fruit Union v. Cincinnati, N. 0. & T. P. Ry. Co. (12 I. C. C. R. 411), 504. American Lumber & Mfg. Co. v. Southern Pac. Co. (14 I. C. C. R. 561), 528. 17 18 Table of Cases Cited. (Eeferences are to Sections.) American National Live Stock Asso. v. Texas & P. Hy. Co. (12 I. C. C. R. 32), 503. American Union Coal Co. v. Penn. R. Co. (159 Fed. 278), 528, 600. American AYarehouscmen 's Asso. v. Illinois Cent. R. Co. (7 I. C. C. R. 556), 508, 513. Anderson v. United States (171 U. S. 604, 43 L. Ed. 300, 19 Sup. Ct. 50, 1 Fed. Anti-Trust Dec. 967), 600. . Anthony Salt Co. v. Missouri Pae. Ry. Co. (5 I. C. C. R. 299, 4 I. C. R. 33), 54, 504. Arkansas Fuel Co. v. Chicago, M. & St. P. Ry. Co. (16 I. C. C. R. 95, 98), 528, 537, 538, 539, 545. Armour Pkg. Co. v. United States (209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428), 55, 95, 513, 522, 580. Armour Pkg. Co. v. United States (153 Fed. 1, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400), 513, 522. Arthur v. Oakes (63 Fed. 310, 1 Fed. Anti-Trust Dec. 310, 11 C. C. A. 209, 25 L. R. A. 414), 600. Associated Wholesale Grocers v. Missouri Pac. R. Co. (1 I. C. C. R. 156, 1 I. C. R. 321), 508. Associated "Wholesale Grocers v. Mo. Pac. R. Co. (1 I. C. C. R. 156. 1 I. C. R. 393), 573. Atchison, T. & S. F. R. Co. v. Denver & N. 0. R. Co. (110 U. S. 667, 28 L. Ed. 291, 4 Sup. Ct. 185), 80, 508, 510. Atchison, T. & S. F. R. Co. v. Goetz (51 111. App. 151), 89. Atchison, T. & S. F. R. Co. v. Holmes (18 Okla. 92, 90 Pac. 22), 90. Atkins V. Fiber Disintegrating Co. (18 Wall. 85 U. S. 272, 21 L. Ed. 841), 271. Atlanta v. Chattanooga Foimdry & Pipe Co. (101 Fed. 900, 2 Fed. Anti-Trust Dec. 11), 606. Atlanta v. Chattanooga Foimdiy & Pipe Co. (127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 721, 2 Fed. Anti-Trust Dec. 299), 606. Atlantic Coast Line R. Co. v. Florida (203 U. S. 256, 51 L. Ed. 174, 27 Sup. Ct. 108), 206. Atlantic Coast Line R. Co. v. Henderson (131 Ga. 75, 61 S. E. 1111), 201. Atlantic Coast Line R. Co. v. Macon Grocery Co. (166 Fed. 206, 90 C. C. A. ), 3, 254, 528, 572. Table of Cases Cited. 19 (Eeferences are to Sections.) Atlantic Coast Line R. Co. v. North Carolina Corporation Com- mission (206 U. S. 1, 51 L. Ed. 933, 27 Sup. Ct. 585), 52, 65, 206, 304. Atlantic Coast Line E. Co. v. Wharton (207 U. S. 328, 52 L. Ed. 230, 28 Sup. Ct. 121), 303. Attorney-General v. Great Northern R. Co. (29 L. J. Ch. (N. S.) 794), 93. Augusta Southern R. Co. v. Wrightsville & T. R. Co. (74 Fed. 522), 61, 94, 500, 508, 510. B. Baer Bros. Mercantile Co. v. Missouri Pac. Ry. Co. (13 I. C. C. R. 329), 157, 528, 537. Baker v. State (54 Wis. 368, 12 N. W. 12), 206. Ball, The Daniel (10 Wall. 77, U. S. 557, 19 L. Ed. 999), 500. Baltimore & 0. R. Co. v. Hamburger (155 Fed. 849), 513. Baltimore & 0. R. Co. v. Int. Com. Com. ( Fed. ) , 206. Banner Milling Co. v. New York C. etc. R. Co. (13 I. C. C. R. 31), 509. Banner Milling Co. v. New York C. & H. R. R. Co. (14 I. C. C. R. 398), 206, 559. Barden & S. v. Lehigh V. R. Co. (12 I. C. C. R. 193), 507. Barnes Co. v. Berry (156 Fed. 72), 601. Bamham etc. Dry Goods Co. v. Chicago R. T. Co. (14 I. C. C. R. 299), 504. Bates V. Penn. R. Co. (4 I. C. C. R. 281, 3 T. C. R. 296), 559. Baxendale v. Eastern Counties R. Co. (4 C. B. N. S. 63), 75. Baxendale v. L. & S. W. Ry. (4 H. & C. 130, 35 L. J. Ex. 108, L. R. 1 Ex. 137, 12 Jur. (N. S.) 274, 14 L. T. 26, 14 W. R. 458), 82. Beekman Lumber Co. v. St. Louis, I. M. & S. R. Co. (15 I. C. C. R. 274), 159. Behlmer v. Louisville & N. R. Co. (71 Fed. 835), 500, 511. Behlmer v. Louisville & N. R. Co. (83 Fed. 898, 28 C. C. A. 229, 42 U. S. App. 581), 500, 511. Behlmer v. Memphis & C. R. Co. (6 I. C. C. R. 257, 4 I. C. R. 520), 500, 511. Bell Co. V. Baltimore etc. R. Co. (9 I. C. C. R. 632), 508. Bemont v. National Harrow Co. (186 U. S. 70, 46 L. Ed. 1058, 22 Sup. Ct. 747, 2 Fed. Anti-Trust Dec. 169), 600. 20 Tahlp: op Cases Cited. (References are to Sections.) Benson, Ex parte (18 S. C. 38), 75. Best V. Seaboard A. L. Ey. Co. (72 S. C. 479, 52 S. E. 223), 314. Bigbee & Warrior Rivers Packet Co. v. Mobile & 0. R. Co. (60 Fed. 545), 508, 509. Bigelow V. Calumet & Ileela ^Mining Co. (155 Fed. 869), 253, 603. Bigelow V. Calumet & Hecla Mining Co. (167 Fed. 704), 253, 600, 603. Bigelow V. Calumet & Hecla Mining Co. (167 Fed. 721, C. C. A. ) , 253, 600, 603. Birmingham Packing Co. v. Texas & P. Ry. Co. (12 I. C. C. R. 29, 500), 503. Bishop V. American Preservers' Co. (51 Fed. 272, 1 Fed. Anti- Trust Dec. 49), 606. Bishop V. American Preservers' Co. (105 Fed. 845, 1 Fed. Anti- Tnist Dec. 51), 606. Black Mt. Coal Land Co. v. Southern Ry. Co. (15 I. C. C. R. (12 I. C. C. R. 23), 508, 509. Blackwell Milling & Elevator Co. v. Missouri, K. & T. Ry. Co. 286), 509. Blindell v. Hagan (54 Fed. 40, 1 Fed. Anti-Trust Dec. 106), 603. Block V. Standard Distilling & D. Co. (95 Fed. 978, 1 Fed. Anti- Trust Dec. 993), 606. Blount Mfg. Co. V. Yale & Towne Mfg. Co. (166 Fed. 555), 600. Blume V. Wells, Fargo & Co. (15 I. C. C. R. 53), 528, 545. Board of Bristol, Tenn., v. Virginia & S. W. Ry. Co. (15 I. C. C. R. 453), 55, 600. Board of Trade of Chattanooga v. East Tenn., Va. & Ga. Ry. Co. (5 I. C. C. R. 546, 2 I. C. R. 798, 3 I. C. R. 106, 4 I. C. R. 213), 504, 511. Board of Trade of Chicago v. Chicago & A. R. Co. (4 I. C. C. R. 158, 3 I. C. R. 233), 79, 509. Board of Trade of Chicago v. Christie Grain & Stock Co. (121 Fed. 608, 2 Fed. Anti-Trust Dec. 233), 600. Board of Trade of Hampton v. Nashville, C. & St. L. R. Co. (8 I. C. C. R. 503), 61, 94, 504, 509, 511. Board of Trade of Lynchburg v. Old Dominion Steamship Co. (6 L C. C. R. 632), 511, 528. Table of Cases Cited. 21 (Eeferences are to Sections.) Board of Trade of New York v. Penn. R. Co. (4 I. C. C. R. 447, 2 I. C. R. 660, 734, 755, 800, 3 I. C. R. 417), 504, 508, 513. Board of Trade of Troy v. Alabama M. R. Co. (6 I. C.'C. R. 1, 4 I. C. R. 348), 504, 511. Boards of Trade Union v. Chicago etc. R. Co. (1 I. C. C. R. 215, II. C. R. 608), 509. Bobbs-Merrill Co. v. Straus (139 Fed. 155, 2 Fed. Anti-Trust Dec. 755), 600. Bobbs-Merrill Co. v. Straus (147 Fed. 15, 77 C. C. A. 607, 15 L. R. A. 766), 600. Bobbs-Merrill Co. v. Straus (210 U. S. 339, 52 L. Ed. 1086, 28 Sup. Ct. 722), 600. Booth & Co. V. Davis (127 Fed. 875, 2 Fed. Anti-Trust Dec. 318), 600. Boston & A. R. Co. v. Boston & L. R. Co. (1 I. C. C. R. 158, 1 I. C. R. 500, 571), 81, 511, 537. Boston Chamber of Commerce v. Lake Shore & M. S. R. Co. (1 I. C. C. R. 436, 1 I. C. R. 754), 67, 504. Boston Fruit & Produce Exchange v. New York & N. E. R. Co. (5 I. C. C.-R. 1, 3 I. C. R. 604), 500, 504. Boston Fruit & Produce Exchange v. New York & N. E. R. Co. (4 I. C. C. R. 664, 3 I. C. R. 493), 500, 504. Bovaird Supply Co. v. Atchison, T. & S. F. Ry. Co. (13 I. C. C. R. 56), 511. Brabham v. Atlantic C. L. R. Co. (11 I. C. C. R. 464), 51. Brady .v. Penn. R. Co. (4 I. C. R. 283), 559. Brady v. Penn. R. Co. (2 I. C. C. R. 131, 2 I. ^. R. 78), 504. Brannon v. Southern Express Co. (13 I. C. C. R. 516), 528. Brass v. North Dakota ex rel. Stoesser (153 U. S. 391, 38 L. 757, 4 I. C. R. 670, 14 Sup. Ct. 857), 206. Breechbill v. Randall (102 Ind. 528, 52 Am. Rep. 695, 1 N. E. 362), 206. Brewer v. Central of Ga. Ry. Co. (84 Fed. 258), 81, 509, 511. Brewer v. Louisville & N. R. Co. (7 I. C. C. R. 224), 509, 511. Buckeye Buggy Co. v. Cleveland etc. R. Co. (9 I. C. C. R. 620), 504, 508, 528. Budd V. New York (143 IT. S. 517, 36 L. Ed. 247, 4 I. C. R. 45, 12 Sup. Ct. 468), 206. Burgess v. Transcontinental Freight Bureau (13 I. C. C. R. i:>m), 155, 157, 509, 528. 22 Table of Cases Cited. (References are to Sections.) Burlington, C. R. & N. Ry. Co. v. Northwestern Fuel Co. (31 Fed. 652), 82. Burnham, Hanna, Munger Dry Goods Co. v. Chicago, R. I. & P. R. Co. (14 I. C. C. R. 299), 206. Burrows v. Interurban Met. Co. (156 Fed. 389), 601. Burton Stock Car Co. v. Chicago, B. & Q. R. Co. (1 I. C. C. R. 132, 1 I. C. R. 329), 502, 508, 510. Business Men's Asso. v. Chicago & N. W. Ry. Co. (2 I. C. C. R. 73, 2 I. C. R. 48), 57, 62. Business Men's Asso. v. Chicago, St. P., M. & 0. R. Co. (2 I. C. C. R. 52, 2 I. C. R. 41), 57, 60, 504, 508. Business Lien's League of St. Louis v. Atchison, T. & S. F. Ry. Co. (9 I. C. C. R. 318), 55, 63, 82, 504, 509. Butchers' etc. Stock Yards Co. v. Louisville & N. R. Co. (67 Fed. 35, 14 C. C. A. 290), 509. C. California Com. Asso. v. Wells-Fargo & Co. (14 I. C. C. R. 422), 82, 206, 508, 528. California Com. Asso. v. Wells-Fargo Ex. Co. (16 I. C. C. R. 458), 528. Callaway v. Louisville & N. R. Co. (7 I. C. C. R. 431), 509, 511. Camden Iron AVorks v. United States (158 Fed. 561, 85 C. C. A. 585), 522. Camors-McConnell Co. v. McConnell (140 Fed. 412, 2 Fed. Anti- Trust Dec. 817), 600. Campbell v. Northern R. W. Co. (26 Gr. 522), 512. Cannon v. Mobile & Ohio R. Co. (11 I. C. C. R. 537), 52, 62, 504, 508, 509. Cannon Falls Elevator Co. v. Chicago etc. R. Co. (10 I. C. C. R. 650), 85, 508, 509. Capeheart v. Louisville & N. R. Co. (4 I. C. C. R. 265, 3 I. C. R. 278), 503, 510. Capital City Gas Co. v. Central V. R. Co. (111. C. C. R. 104), 78, 508. Cardiff Coal Co. v. Chicago, M. & St. P. Ry. Co. (13 I. C. C. R. 460), 165, 503, 510. Carr v. Northern Pac. R. Co. (9 I. C. C. R. 1), 508. 513. Carter v. New Orleans & N. E. R. Co. (143 Fed. 99, 74 C. C. A. 293), 159, 528. Table of Cases Cited. . 23 (Keferences are to Sections.) Carter-Crume Co. v. Peurrung (86 Fed. 439, 30 C. C. A. 174, 1 Fed. Anti-Trnst Dec. 844) , 600. Cary v. Eureka Springs Ry. Co. (7 I. C. C. R. 286), 500, 508, 539. Cassatt V. Mitchell Coal & Coke Co. (150 Fed. 32, 10 L. R. A.— N. S.— 99, 81 C. C. A. 80), 500. Cator V. Southern Pac. Co. (6 1. C. C. R. 113, 4 I. C. R. 397), 508. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (10 I. C. C. R. 83), 159, 528, 537, 545, 547, 559. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (11 I. C. C. R. 277), 528. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (12 I. C. C. R. 6), 162, 559. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co. (12 I. C. C. R. 507), 50, 206, 537, 559. Cattle Raisers' Asso. v. Missouri, Kansas & Tex. R. Co. (11 I. C. C. R. 296, 13 I. C. C. R. 418), 67, 206, 504, 528, 600. Cattle Raisers' Asso. v. Fort Worth & D. C. R. Co. (7 I. C. G. R. 555a), 559. Cattle Raisers' Asso. of Texas v. Fort Worth & D. C. R. Co. (7 I. C. C. R. 513), 500, 502, 508, 509. Cattle Raisers' Asso. of Texas v. Galveston, H. & S. A. R. Co. (12 I. C. C. R. 20), 503. Cattle Raisers' Asso. v. Missouri, Kan. & Tex. Ry. Co. (12 I. C. C. R. 1), 537, 539, 559. Cedar Hill Coal & Coke Co. v. Colorado Southern R. Co. (14 I. C. C. R. 606), 528. Central Coal & Coke Co. v. Hartman (111 Fed. 96, 49 C. C. A. 244, 2 Fed. Anti-Trust Dec. 94), 606. Central Trust Co. v. Pittsburg etc. R. Co. (101 N. Y. Sup. 837, 114 App. Div. 907), 506. Central of Georgia Ry. Co. v'. McLendon, et al. (157 Fed. 961), 206. Central of Georgia Ry. Co. v. City Mills Co. (128 Ga. 841, 58 S. E. 197), 201. Central of Georgia Ry. Co. v. Murphey (116 Ga. 863, 43 S. E. 265, 60 L. R. A. 817), 313. • Central of Georgia Ry. Co. v. Murphey (196 U. S. 194, 49 L. Ed. 444, 25 Sup. Ct. 218), 313. 24 Table of Cases Cited. (Keiorciiecs are to Sections.) Central P. K. Co. v. Gallatin (99 U. S. 9 Otto 727, 25 L. Ed. 504), 3. Central Stock Yards Co. v. Louisville & N. R. Co. (112 Fed. 823), 528, 545. Central Stock Yards Co. v. Louisville & N. R. Co. (118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213), 304, 510, 545. Central Stock Yards Co. v. Louisville & N. R. Co. (192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339), 252, 510, 545, 580. Central Yellow Pine Asso. v. Illinois Cent. R. Co. (10 I. C. C. R. 505), 52, 54, 55, 58, 59, 154, 504, 508, 509, 539, 600. Central Yellow Pine Asso. v. Vicksburg, S. & P. R. Co. (10 I. C. C. R. 193), 84, 508, 513. Chamber of Commerce of Chattanooga v. Southern Ry. Co. (10 L C. C. R. Ill), 511. Chamber of Commerce of IMilwaukee v. Chicago, M. & St. P. R. Co. (7LC. C. R. 481),509. Chamber of Commerce of Milwaukee v. Flint & P. M. R. Co. (2 I. C. C. R. 553, 1 I. C. R. 774, 792, 2 I. C. R. 393), 508. Chattanooga Foundry & Pipe Works v. Atlanta (203 U. S. 390, 51 L. Ed. 241, 27 Sup. Ct. 65), 528, 606. Chesapeake & Ohio Fuel Co. v. United States (115 Fed. 610, 53 C. C. A. 256, 2 Fed. Anti-Trust Dec. 151), 600. Chesapeake & Ohio R. Co. v. Int. Com. Com. (200 U. S. 361, 50 ■ L. Ed. 515, 26 Sup. Ct. 272), 508. Chesapeake & Ohio R. Co. v. Kentucky (179 U. S. 388, 45 L. Ed. 244, 21 Sup. Ct. 101), 307. Chicago & Alton R. Co. v. Int. Com. Com. ( Fed. ), 206. Chicago & Alton R. Co. v. New York, L. E. & W. R. Co. (24 Fed. 516), 252. Chicago & Alton R. Co. v. Penn. Co. (1 I. C. C. R. 86, 1 I. C. R. 357), 503, 510. Chicago & Alton R. Co. v. United States, 156 Fed. 558, 84 C. C. A. 324), 513. Chicago & G. T. R. Co. v. Wellman (143 U. S. 339, 36 L. Ed. 176, 12 Sup. Ct. 400), 206. Chicago & ]\Iil. Elec. R. Co. v. 111. Cent. R. Co. (13 I. C. C. R. 20), 500, 504, 542. ■ Chicago & North W. R. Co. v. Dey, ct al. (35 Fed. 866, 2 I. C. R. 325, 1 L. R. A. 744), 206. Chicago & North W. R. Co. v. Junod (52 Fed. 912, 3 C. C. A. 347), 528. Table of Cases Cited. 25 (References are to Sections.) Cliicago & North AY. R. Co. v. Jimod (146 U. S. 364, 36 L. Ed. 1002), 528. Chicago & North W. R. Co. v. Osborne (146 U. S. 364, 36 L. Ed. 1002), 528. Chicago & North W. R. Co. v. Osborne (52 Fed. 912, 3 C. C. A. 347), 3, 255, 511, 528, 534, 541. Chicago, B. & Q. R. Co. v. Iowa (v. Cutts), 94 U. S. 155, 24 L. Ed. 94), 206. Chicago, B. & Q. R. Co. v. United States (157 Fed. 830, 85 C. C. A. 194), 7, 95, 500. Chicago, B. & Q. R. Co. v. U. S. (209 U. S. 90, 52 L. Ed. 698, 28Sup..Ct. ),95, 522. Chicago Fire Proof etc. Co. v. Chicago & N. W. R. Co. (8 I. C. . C. R. 316), 509, 511. Chicago, K. & W. R. Co. v. Pontius (157 U. S. 209, 39 L. Ed. 675, 15 Sup. Ct. 585), 404. Chicago Live Stock Ex. v. Chicago G. W. R. Co. (10 I. C. C. R. 428), 504, 509. Chicago, M. & St. P. R. Co. v. Ackley (94 U. S. 179, 24 L. Ed. 99), 206. Chicago, M. & St. P. R. Co. v. Becker (32 Fed. 849), 500. Chicago, M. & St. P. R. Co. v. Int. Com. Com. ( Fed. ), 206. Chicago, M. & St. P. R. Co. v. Int. Com. Com., Coal Cose ( Fed. ),206. Chicago, M. & St. P. R. Co. v. Int. Com. Com., Red Wing Lin- seed Case, ( Fed. ), 206. Chicago, M. & St. P. R. Co. v. Iowa (145 U. S. 631, 36 L. Ed. 857, 12 Sup. Ct. 978), 500. Chicago, M. & St. P. R. Co. v. Minnesota (134 U. S. 418, 33 L. Ed. 970, 3 I. C. R. 209, 10 Sup. Ct. 462, 702), 3, 206, 504. Chicago, M. & St. P. R. Co. v. Solan (169 U. S. 133, 42 L. Ed. 688, 18 Sup. Ct. 289), 313. Chicago, M. & St. P. R. Co. v. Tompkins (176 U. S. 167, 44 L. Ed. 417, 20 Sup. Ct. 336), 206. Chicago, R. I. & P. R. Co. v. Arkansas (86 Ark. 412, 111 S. W. 456), 312. Chicago, R. I. & P. R. Co. v. Int. Com. Com. (171 Fed. 680), 206, 539, 555, 557. Chicago, R. I. & P. R. Co. v. Chicago & A. R. Co. (3 I. C. C. R. 450, 2 I. C. R. 581, 721), 508. 26 Table of Cases Cited. (Eefereneos are to Sections.) Chicago, R. I. & P. R. Co. v. Ilubbcll (54 Kan. 232, 38 Pae. 266, 5 1. C. R. 241),90. Chicago, St. P., M. & O. R. Co. v. United States (162 Fed. 835), 513, 522. Chicago Sash & Door Asso. v. Norfolk & AV. R. Co. (14 I. C. C. R. 594), 511. Chicago Wall Paper IMills v. General Paper Co. (147 Fed. 491, 78 C. C. A. 607, 2 Fed. Anti-Trust Dec. 1027), 600. China & Japan Trading Co. v. Georgia R. Co. (12 I. C. C. R. 236), 55, 504, 509, 600. Christie Grain & Stock Co. v. Board of Trade of Chicago (125 Fed. 161, 61 C. C. A. 11), 600. Christie Grain & Stock Co. v. Board of Trade of Chicago (198 U. S. 236, 49 L. Ed. 1031, 25 Sup. Ct. 637, 2 Fed. Anti- Trust Dec. 717), 600. Cilley V. United Shoe Mach. Co. (152 Fed. 726), 606. Cincinnati, H. & D. R. Co. v. Int. Com. Com. (206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648), 59, 83, 204, 205, 208, 504, 508, 538, 539, 545. Cincinnati, N. 0. & T. P. R. Co. v. Int. Com. Com. (162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700), 7, 67, 81, 153, 204, 500, 504, 509, 511, 534, 539. Cincinnati, N. 0. & T. P. R. Co. v. Int. Com. Com. (5 I. C. R. 391, 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896), 153, 204, 539. Cincinnati, P. B. S. & P. P. Co. v. Bay (200 U. S. 179, 50 L. Ed. 428, 26 Sup. Ct. 208, 2 Fed. Anti-Trust Dec. 867), 600. Cist V. Mich. Cent. R. Co. (10 I. C. C. R. 217), 500, 504. City Gas Co. v. Baltimore & 0. R. Co. (11 I. C. C. R. 371), 508, 509. City of Atchison v. Mo. Pac, Ry. Co. (12 I. C. C. R. 254), 559. City of Danville v. Southern Ry. Co. (8 I. C. C. R. 571), 559. City of Spokane v. Nor. Pac. Ry. Co. (15 I. C. C. R. 376), 504, 509, 511. Claflin V. Houseman (93 U. S. 3 Otto. 130, 23 L. Ed. 833), 200. Clark Co. (Fred. G.) v. Lake Shore & M. S. Ry. Co. (11 I. C. C. R. 558), 541. Clarke (Rowena) v. Central R. & Bkg. Co. of Ga. (50 Fed. 338, 15 L. R. A. 683, 1 Fed. Anti-Trust Dec. 17), 55, 600. Clement v. Louisville & N. R. Co. (153 Fed. 979), 154, 528. Table of Cases Cited. 27 (Eeferences are to Sections.) Cleveland, C, C. & St. L. R. Co. v. Illinois (177 U. S. 514, 44 L. Ed. 868, 20 Sup. Ct. 722), 300, 302. Coe V. Errol (116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475), 500. Coe V. Louisville & N. R. Co. (3 Fed. 775), 3, 251, 252, 253. Coffeyville Vitrified Brick & Tile Co. v. St. Louis & S. F. Ry. Co. (12 I. C. C. R. 498), 64, 504, 537. Colorado Fuel & Iron Co. v. Southern Pac. Co. (6 I. C. C. R. 488), 54, 504, 509, 513, 518. Commercial Club of Omaha v. Chicago & N. W. Ry. Co. (7 I. C. C. R. 386), 504, 509. Commercial Club of Omaha v. Chicago, R. I. & P. Ry. Co. (6 I. C. C. R. 647), 503, 508, 509, 537, 541. Commonwealth of Va. v. Atlantic C. L. R. Co. (106 Va. 61, 55 S. E. 572), 3. Connelly v. Union Sewer Pipe Co. (184 U. S. 540, 46 L. Ed. 679, 22 Sup. Ct. 431, 2 Fed. Anti-Trust Dec. 118), 600. Connor v. Vicksburg & M. R. Co. (36 Fed. 273, 1 L. R. A. 331), 200, 528. Consolidated Forwarding Co. v. Southern Pac. Co. (9 I. C. C. R. 182), 503, 512, 513. Consolidated Forwarding Co. v. Southern Pac. Co. (10 I. C. C. R. 590), 503, 512, 563. Continental Securities Co. v. Interborough R. T. Co. (165 Fed. 945), 603. Continental Wall Paper Co. v. Lewis Voight & Sons Co. (212 U. S. 227, 53 L. Ed. , 29 Sup. Ct. 280), 600. Continental Wall Paper Co. v. Lewis Voight & Sons Co. (148 Fed. 939, 78 C. C. A. 567), 600. Coomes v. Chicago, St. P., M. & 0. Ry. Co. (13 I. C. C. R. 192), 528. Copp V. Louisville & N. R. Co. (43 La. Ann. 511, 9 So. 441, 3 I. C. R. 625, 46 Am. & Eng. R. Cases 634), 200, 528. Corn Belt Meat Producers' Asso. v. Chicago, B. & Q. R. Co. (14 1. C. C. R. 376), 84, 504. Cosmopolitan Shipping Co. v. Hamburg- American Packet Co., ct al. (13 I. C. C. R. 266), 90, 512. Cotting V. Godard (183 U. S. 79, 46 L. Ed. 92, 22 Sup. Ct. 30), 206. Councill V. Western & A. R. Co. (1 I. C. C. R. 339, 1 I. C. R. 638), 545. 28 Table of Cases Cited. (Eeferences are to Sections.) Counselman v. Hitchcock (142 U. S. 547, 35 L. Ed. 1110, 12 Sup. Ct. 195), 534. Covington & Lexington Turnpike Road Co. v. Sandford (164 U. S. 578, 41 L. Ed. 5G0, 17 Sup. Ct. 198), 51, 53, 65, 67, 206. Cowan V. Bond (39 Fed. 54), 508. Coxe Bros. & Co. v. Lehigh V. R. Co. (4 I. C. C. R. 535, 2 I. C. R. 195. 229, 3 L C. R. 460), 504, 508, 539. Cozart V. Southern Ry. Co. (16 I. C. C. R. 226), 307, 509. Crane R. Co. v. Phihidelphia & R. R. Co. (15 I. C. C. R. 248), 503. Craven v. Carter-Crume Co. (92 Fed. 479, 34 C. C. A. 479, 1 Fed. Anti-Trust Dec. 983), 601. Crews V. Richmond & D. R. Co. (1 I. C. C. R. 401, 1 I. C. R. 703), 84, 508. Crouch V. G. N. R. Co. (11 Ex. 742, 25 L. J. Ex. 137), 82. Cutting V. Fla. Ry. & Nav. Co. (46 Fed. 641), 500. D. Dallas Freight Bureau v. Austin & N. W. R. Co. (9 I. C. C. R. 68), 511. Dallas Freight Bureau v. Gulf, C. & S. F. Ry. Co. (12 I. C. C. R. 223), 154, 504, 528, 537. Dallas Freight Bureau v. Missouri, Kan. & Tex. Ry. Co. (12 I. C. C. R. 427), 62, 504, 537. Dallas Freight Bureau v. Texas & Pac. Ry. Co. (8 I. C. C. R. 33), 51L Daniel Ball (The) v. United States (10 Wall. 77 U. S. 557, 19 L. Ed. 999), 7, 500. Daniels v. Chicago, M. & St. P. Ry. Co., et al. (6 I. C. C. R. 458), 253. Daniels v. Chicago, R. I. & P. R. Co. (6 I. C. C. R. 458), 81, 253, 509, 511. Danville v. Southern Ry. Co. (8 T. C. C. R. 409), 509. Davenport v. Southern Ry. Co. (11 I. C. C. R. 650), 509. Davis V. Booth (195 U. S. 636, L. Ed. , Sup. Ct. ), 600. Davis V. Booth (131 Fed. 31, 65 C. C. A. 269, 2 Fed. Anti-Trust Dec. 566), 600. Davis V. Pere Marquette R. Co. (10 I. C. C. R. 405), 89. Table of Cases Cited. 29 (Eeferences are to Sections.) Davis V. State (68 Ala. 58, 44 Am. Rep. 128), 206. Davis V. United States (104 Fed. 136, 43 C. C. A. 448), 89, 531. Debs, Re. (158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900, 1 Fed. Anti-Trust Dec. 565), 600. Delaware, L. & W. R. Co. v. Central Stock Yard & Transit Co. (45 N. J. Eq. 50, 6 L. R. A. 855, 17 Atl. 146), 206. Delaware, L. & W. R. Co. v. Frank (110 Fed. 689, 2 Fed. Anti- Trust Dec. 81), 600. Delaware, L. & W. R. Co. v. Int. Com. Com. (155 Fed. 512), 206, 557. Delaware, L. & W. R. Co. v. Int. Com. Com. (166 Fed. 498), 206, 539, 557. Delaware, L. & W. R. Co. v. Int. Com. Com. (166 Fed. 499), 82, 206, 508, 539, 557. Delaware, L. & W. R. Co. v. Kutter (147 Fed. 51, 77 C. C. A. 315, 2 Fed. Anti-Trust Dee. 1021). 509, 600. Delaware, L. & W. R. Co. v. Kutter (203 U. S. 588, 51 L. Ed. 330), 509, 600. Delaware State Grange v. New York, P. & N. R. Co. (2 I. C. C. R. 309. 2 I. C. R. 187), 537. Delaware State Grange v. New York, P. & N. R. Co. (4 I. C. C. R. 588, 3 I. C. R. 554), 53, 67. Delaware State Grange v. New York, P. & N. R. Co. (5 I. C. C. R. 161, 3 I. C. R. 828), 559. Dennehy v. McNulta (86 Fed. 825, 30 C. C. A. 422, 41 L. R. A. 609, 1 Fed. Anti-Trust Dec. 855). 601. Dennison Light & Power Co. v. Missouri, Kan. & Tex. Ry. Co. (10 I. C. C. R. 337), 54. Denver & N. O. R. Co. v. Atchison, T. & S. F. Ry. Co. (15 Fed. 650), 252. Desel-Boettcher Co. v. Kansas City Southern Ry. Co. (12 I. C. C. R. 220),62. Detroit Board of Trade v. Grand Trunk R. Co. (2 I. C. C. R. 315, 1 I. C. R. 699, 2 I. C. R. 199), 508, 509. Detroit, G. H. & M. Ry. Co. v. Int. Com. Com. (74 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308), 94, 500. 504, 508, 509, 511, 534, 537, 545. Dewey Bros. v. Baltimore & 0. R. Co. (11 I. C. C. R. 481), 88, 511, 528. Diamond Mills Co. v. Boston & M. R. Co. (9 I. C. C. R. 311), 84, 509. 30 Tarle of Cases Cited. (References are to Sections.) Diffenbanj^-h (Harry J.) ot al. v. Int. Coin. Com. (St. Louis Ele- vator Cases) ( Fed. ), 206. Doctor Miles Medical Co. v. Jaynes Drug Co. (149 Fed. 838), 600. Doctor Miles Medical Co. v. John D. Fark & Sons Co. (164 Fed. 803, CCA. ),600. Dow V. Beidelman (125 U. S. 680, 31 L. Ed. 841, 2 I. C R. 56, 8 Sup. Ct. 1028), 51, 206. Dudley v. IMayhew (3 N. Y. 9), 200. Dueber Watcli-Case Mfg. Co. v. Howard Watch & Clock Co. (55 Fed. 851, 1 Fed. Anti-Trust Dec. 178), 606. Dueber Watch-Case Mfg. Co. v. Ploward Watch & Clock Co. (66 Fed. 637, 14 C C A. 14, 1 Fed. Anti-Trust Dec. 421), 603, 606. Duluth Log. Co. V. Minn. & Int. Ry. Co. (15 I. C C R. 627), 159. Duluth Shingle Co. v. Duluth, S. S. & A. R. Co. (10 I. C C. R. 489), 83, 509. Duncan v. Atchison, T. & S. F. R. Co. (6 I. C C R. 85, 3 I. C R. 256. 4 I. C R. 385), 91, 504, 508, 509, 513, 528. Duncan v. Nashville, C & St. L. Ry. Co. (16 I. C C R. 590), 63, 82, 85, 86, 508. Durham v. 111. Cent. R. Co. (12 I. C C R. 37), 511. E. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com. (99 Fed. 52, 39 C C A. 413), 55, 79, 504, 509, 511. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com. (181 IT. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516), 55, 67, 79, 81, 205, 504, 508, 509, 511, 545. Eaton V. Cincinnati, H. & D. R. Co. (11 I. C C R. 619), 87, 528. Edwards v. Nashville, C & St. L. Ry. Co. (12 I. C C R. 247), 307. Edmunds v. 111. Cent. R. Co. (80 Fed. 78), 200, 528. Eichenberg v. Southern Pac. Co. (14 I. C C R. 250), 500, 502, 509. Ellis V. Inman, Poulsen & Co. (124 Fed. 956, 2 Fed. Anti-Trust Dec. 268), 600. Ellis V. Inman, Poulsen & Co. (131 Fed. 182, 65 C C. A. 488, 2 Fed. Anti-Trust Dec. 577), 600. Table of Cases Cited. 31 (References are to Sections.) Elvey V. 111. Cent. R. Co. (3 I. C. C. R. 652, 2 I. C. R. 804), 508, 509. Enterprise Fuel Co. v. Penn. R. Co. (16 I. C. C. R. 219), 510, 542. Enterprise Mfg. Co. v. Georgia R. Co. (12 I. C. C. R. 451), 55, 504, 509, 600. Enterprise Transportation Co. v. Penn. R. Co. (12 I. C. C. R. 326), 165, 500, 502, 503. Erb V. Morasch (177 U. S. 584, 44 L. Ed. 897, 20 Sup. Ct. 819), 302. Evans v. Union Pac. R. Co. (6 I. C. C. R. 520), 62, 504. Ex parte Benson (18 S. C. 38), 75. Ex parte Koehler (30 Fed. 867), 500. Ex parte Koehler (31 Fed. 315, 12 Sawy. 446), 505, 508, 511, 571. Ex parte Lennon (64 Fed. 320, 22 U. S. App. 561), 510. Ex parte Lennon (166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658), 510. Ex parte McNiel (80 U. S. 13 Wall. 236, 20 L. Ed. 624), 200. Export Shipping Co. v. AVabash R. Co. (14 I. C. C. R. 437), 82, 508, 528, 571, 573. Ex parte Young (209 U. S. 123, 52 L. Ed. 714, 28 Sup. Ct. 441), 3. F. Falls & Co. V. Chicago, R. I. & P. Ry. Co. (15 I. C. C. R. 269), 154, 528. Farmers' Loan & Trust Co. v. Northern Pac. R. Co. (83 Fed. 249), 500, 511, 539, 545. Farmers', Merchants' and Shippers' Club v. Atchison, T. & S. F. R. Co. (12 I. C. C. R. 351), 54, 60, 504. Farmers' Warehouse Co. v. Louisville & N. R. Co. (12 I. C. C. R. 457), 504, 528. Farrar v. East Tenn., Va. & Ga. Ry. Co. (1 I. C. C. R. 480, 1 I. C. R. 764), 57. Farrar v. Southern Ry. Co. (11 I. C. C. R. 632), 56, 57, 504. Fewell V. Richmond & D. R. Co. (7 I. C. C. R. 354), 511. Field V. Barber Asphalt Paving Co. (317 Fed. 925, 2 Fed. Anti- Trust Dec. 192), 600. Field V. Barber Asphalt Paving Co. (194 U. S. 618, 48 L. Ed. 1142, 24 Sup. Ct. 784, 2 Fed. Anti-Trust Dec. 555), 600. 32 Table op Cases Cited. (Eeferenccs are to Sections.) Fitchburg R. Co. v. Gage (12 Gray 393), 75. Fitzgerald v. Fitzgerald etc. Construction Co. (41 Neb. 37-1, 59 N. W. 838), 528. Flaccus Glass Co. v. Cleveland etc. R. Co. (14 I. C. C. R. 333), 504. Flint & Walling Mfg. Co. v. Grand Rapids & Tnd. R. Co. (14 I. C. C. R. 520), 206. Folmer & Co. v. Great Nor. Ry. Co. (15 I. C. C. R. 33), 159, 513. Foot V. Buchanan (113 Fed. 156, 2 Fed. Anti-Trust Dec. 103), 600. Forest City Freight Bureau v. Ann Arbor R. Co. (13 I. C. C. R. 118), 537. Fort Smith traffic Bureau v. St. Louis & S. F. R. Co. (13 I. C. C. R. 651), 504. Foster v. Cleveland, C, C. & St. L. Ry. Co. (56 Fed. 434), 509. Foster Bros. v. Duluth etc. Ry. Co. (14 I. C. C. R. 232), 528, 536. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co. (6 I. C. C. R. 195, 4 I. C. R. 592), 58, 62, 504, 512, 539, 600. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co. (7 I. C. C. R. 180), 504, 509. G. Gaines v. Seaboard A. L. Ry. (16 I. C. C. R. 471), 307, 509. Gallogly V. Cincinnati, H. & D. R. Co. (11 I. C. C. R. 1), 87, 528. Galveston, H. & S. A. Ry. Co. v. Crow (117 S. ^Y. 170, Tex. Civ. App. ), 569. Gardner v. Southern Ry. Co. (10 I. C. C. R. 342), 509, 511, 528. Gatton V. Chicago, M. & St. P. Ry. Co. (95 Iowa 112, 62 N. W. 589, 28 L. R. A. 556, 5 I. C. R. 474), 528, 572. General Electric Co. v. New York C. & H. R. R. Co. (14 I. C. C. R. 237), 543. General Electric Co. v. AA^ise (119 Fed. 922, 2 Fed. Anti-Trust Dec. 205), 600. Georgia Peachgrowers' Asso. v. Atlantic C. L. R. Co. (10 I. C. C. R. 255), 53, 504. Table of Cases Cited. 33 (References are to Sections.) Georgia R. & B. Co. v. Smith (70 Ga. 694), 3. Georgia R. & B. Co. v. Smith (128 U. S. 174, 32 L. Ed. 377, 9. Sup. Ct. 47), 3. Gerke Brewing Co. v. Louisville & N. R. Co. (5 I. C. C. R. 596, 4 I. C. R. 267), 511. Gibbons v. Ogden (9 Wheat 1, 6 L. Ed. 23, 70), 2. Gibbs V. McNeely (102 Fed. 594, 2 Fed. Anti-Trust Dec. 25), 606. Gibbs V. McNeely (118 Fed. 120, 55 C. C. A. 70, 60 L. R. A. 152, 2 Fed. Anti-Trust Dec. 194), 606. Gibbs V. NcNeely (107 Fed. 210, 2 Fed. Anti-Trust Dec. 71), 606. Girard Point Storage Co. v. South wark Foundry Co. (105 Pa. 248), 206. Glade Coal Co. v. Baltimore & 0. R. Co. (10 I. C. C. R. 226), 87, 504, 509. Gladson v. Minnesota (166 U. S. 427, 4:^ L. Ed. 1064, 17 Sup. Ct. 627), 303. Goff-Kirby Coal Co. v. Bessemer & L. E. R. Co. (15 I. C. C. R. 553), 528. • Goldfield Con. Mines Co. v. Goldfield Miners' Union (159 Fed. 500), 601. Goshen Rubber Works v. Single Tube A. & B. Tire Co. (166 Fed. 431, CCA. ), 600. Grain Shippers' Asso. v. 111. Cent. R. Co. (8 I. C C R. 158), 51, 504, 528. Greater Des Moines Com. v. Chicago G. W. Ry. Co. (14 I. C C R. 294), 511. Great Northern Ry. Co. v. Kalispell Lumber Co. (165 Fed. 25, C C A. • ) , 254, 572. Great Northern Ry. Co. v. United States (155 Fed. 945, 84 C C A. 93), 522, 577. Great Northern Ry. Co. v. United States (208 U. S. 452, 52 L. Ed. 569, 28 Sup. Ct. ), 522, 577. Great Western R. W. Co. v. Grand Trunk R. W. Co. (25 U. C. R. 37), 512. Great Western Ry. v. Sutton (38 L. J. Ex. 177, L. R. 4 H. L, 226, 22 L. T. 43, 18 W. R. 92), 75, 78, 508. Green Bay Business Men's Asjso. v. Baltimore ^ 0. R, Co. (15 I. C C. R. 59), 504, 34 . Table op Cx\ses Cited. (Eeferenccs are to Sections.) Grceuwall v. Weir (111 N. Y. Sup. 235, 59 Misc. Rep. 431), 569. Greer, Mills & Co. v. Stoller (77 Fed. 1, 1 Fed. Anti-Tnist Dec. 620), 603, 604. Griffin Grocery Co. v. Southern Ry. Co. (11 I. C. C. R. 522), 509, 511. Gulf, Colo. & S. F. R. Co. V. Ilefley (158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802), 90, 153, 513, 519. Gulf, Colo. & S. F. R. Co. V. Miami S. S. Co. (86 Fed. 407, 30 C. C. A. 142, 1 Fed. Anti-Trust Dec. 823), 80, 510, 606. Gulf, Colo. & S. F. R. Co. V. Moore (98 Tex. 302, 83 S. W. 362), 200, 528. Gulf, Colo. & S. F. R. Co. V. Texas (204 U. S. 403, 51 L. Ed. 540, 27 Sup. Ct. 360), 7, 500. Gump V. Baltimore & 0. R. Co. (14 I. C. C. R. 98), 504, 511. Gustin V. Atchison, T. & S. F. Ry. Co. (8 I. C. C. R. 277), 57, 504. Gustin V. Burlington & M. R. R. Co. (8 I. C. C. R. 481), 511. Gustin V. 111. Cent. R. Co. (7 I. C. C. R. 376), 503. H. Haddock v. Delaware, L. & W. R. Co. (3 I. C. R. 410), 559. Haddock v. Delaware, L. & W. R. Co. (4 I. C. C. R. 296, 3 I. C. R. 302), 534. Hadley-Dean Plate Glass Co. v. Highland Glass Co. (143 Fed. 242, 74 C. C. A. 462, 2 Fed. Anti-Trust Dec. 994), 600. Hagan v. Blindell (56 Fed. 696, 6 C. C. A. 86, 1 Fed. Anti- Trust Dec. 182), 603. Hale V. Henkel (201 U. S. 43, 50 L. Ed. 652, 26 Sup. Ct. 370, 2 Fed. Anti-Trust Dec. 874), 600. Hall V. DeCuir (95 U. S. 5 Otto 485, 24 L. Ed. 547), 307. Hamilton & Brown v. Chattanooga, R. & C. R. Co. (4 I. C. C. R. 686, 3 I. C. R. 482), 511. Hanley v. Kansas City S. R. Co. (187 U. S. 617, 47 L. Ed. 333, 23 Sup. Ct. 214) , 7, 500. Hardenburg, D. & G. v. Northern Pac. Ry. Co. (14 I. C. C. R. 579), 528. Hare v. L. & N. W. R. W. Co. (2 J. & H. 480, 30 L. J. Ch. 817), 512. Harriman v. Int. Com. Com. (211 U. S. 407, 53 L. Ed. , 29 Sup. Ct. 115), 160, 534, 535, 563, 570, 576. Table of Cases Cited. 35 (Eeferences are to Sections.) Harriman v. Northern Securities Co. (132 Fed. 464, 2 Fed. Anti-Trust Dec. 587), 603. Harriman v. Northern Securities Co. (197 U. S. 244, 49 L. Ed. 739, 25 Sup. Ct. 493, 2 Fed. Anti-Trust Dec. 669), 603. Hartman v. John D. Park & Sons (145 Fed. 358, 2 Fed. Anti- Trust Dec. 999), 600. Hartman Furniture & Carpet Co. v. Wisconsin Cent. R. Co. (15 I. C. C. R. 530), 159. Harvard v. Penn. Co. (4 I. C. C. R. 212, 3 I. C. R. 257), 63, 508, 509. Harvey V. Louisville & N. R. Co. (5 I. C. C. R. 153, 2 I. C. R. 662, 3 I. C. R. 793), 505, 508, 571. Harwell v. Columbus & W. R. Co. (1 I. C. C. R. 236, 1 I. C. R. 631), 511. Hastings Malting Co. v. Chicago, M. & St. P. Ry. Co. (11 I. C. C. R. 675), 504, 511, 539. HaAvkins v. Wheeling etc. R. Co. (9 I. C. C. R. 212), 87. Hays V. Penn. Co. (12 Fed. 309), 509. Heard v. Georgia R. Co. (1 I. C. C. R. 428, 1 I. C. R. 719), 509. Heard v. Georgia R. Co. (3 I. C. C. R. Ill, 2 I. C. R. 508), 509. Heck V. East., Tenn., Va. & Ga. Ry. Co. (1 I. C. C. R. 495, 1 I. C. R. 775), 500, 528, 545. Hennepin Paper Co. v. Northern Pac. R. Co. (12 I. C. C. R. 535), 88, 528. Hennington v. Georgia (163 U. S. 299, 41 L. Ed. 166, 16 Sup. Ct. 1086), 301. Hewins v. New York, N. H. & H. R. Co. (10 I. C. C. R. 221), 91, 509. Hill & Bro. V. Nashville, C. & St. L. Ry. Co. (6 I. C. C. R. 343), 511. Hilton Lumber Co. v. Wilmington & W. R. Co. (9 I. C. C. R. 17), 94, 504, 508, 509. Holbrook v. St. Paul, M. & M. R. Co. (1 I. C. C. R. 102, 1 I. C. R. 323), 537. Holliday Milling Co. v. Louisville & N. R. Co. (80 Ark. 536, 98 S. W. 374), 528. Holmes & Co. v. Southern Ry. Co. (8 I. C. C. R. 561), 59, 504. Holdzkom v. Mich. Cent. R. Co. (9 I. C. C. R. 42), 509, 511. Honolulu R. T. Co. v. Hawaii (211 U. S. 282, 53 L. Ed. , 29 Sup. Ct. 55), 3. 36 Tahle of Cases Cited. (l^oferoiicos are to Sections.) Hope Cotton Oil Co. v. Texas & Pae. Ry. Co. (10 I. C. C. R. 696), 500, 528. Hope Cotton Oil Co. v. Texas & Pac. Ry. Co. (12 I. C. C. R. 265), 504. Hopkins V. United States (171 U. S. 578, 43 L. Ed. 290. 19 Sup. Ct. 40, 1 Fed. Anti-Trust Dec. 941), 600. Houston & T. C. R. Co. v. Dumas (43 S. W. 609), 90. Houston & T. C. R. Co. v. Mayes (36 Tex. Civ. A pp. 606, 83 S. W. 53), 306. Houston & T. C. R. Co. v. Mayes (201 U. S. 321, 50 L. Ed. 772, 26 Sup. Ct. 491), 305, 306. Howard v. 111. Cent. R. Co. (207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141), 2, 312, 404. Howard Mills Co. v. Missouri Pac. R. Co. (12 I. C. C. R. 258), 509. Howard Supply Co. v. Chesapeake & Ohio Ry. Co. (162 Fed. 688), 546. Howell V. New York, L. E. & AV. R. Co. (2 I. C. C. R. 272, 2 I. C. R. 162), 50, 53, 54, 60, 94, 504, 509. Hoxie V. New York, N. H. & II. R. Co. (73 Atl. 754, Ct. ), 405. Hozier v. Caledonian R. Co. (17 Sess. Cas. 302, 1 Nev. & McN. R. Cas. 27), 79. Hurlburt v. Lake Shore & M. S. R. Co. (2 I. C. C. R. 122, 2 I. C. R. 81), 537, 579. Hussey v. Chicago, R. I. & P. R. Co. (14 I. C. C. R. 215), 559. Hydraulic Press Brick Co. v. St. Louis & S. F. R. Co. (13 I. C. C. R. 342), 509. Illinois Central R. Co. v. Illinois (163 U. S. 142, 41 L. Ed. 107, 16 Sup. Ct. 1096), 303. Illinois Central R. Co. v. Int. Cora. Com. (206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700), 3, 52, 54, 55, 59, 154, 205, 504, 509, 539, 545, 600. Illinois Central R. Co. v. Int. Com. Com. ( Fed. ) , 206. Ilwaco Ry. & Nav. Co. v. Oregon S. L. & U. N. Ry. Co. (57 Fed. 673, 6 C. C. A. 495), 509, 510. Imperial Coal Co. v. Pittsburg & L. E. R. Co. (2 I. C. C. R. 618, 2LC. R. 436),60, 94, 5U. Table of Cases Cited. 37 (Eeferences are to Sections.) Independent Eefiners' Asso. v. Penn. K. Co. (6 I. C. C. R. 52, 4 I. C. R. 162, 369, 5 I. C. C. R. 415, 2 I. C. R. 294), 508, 559. Independent Refiners' Asso. v. Western N. Y. & P. R. Co. (5 I. C. C. R. 415, 4 I. C. R. 162), 512. Independent Refiners' Asso. v. Western N. Y. & P. R. Co. (6 I. C. C. R. 378), 500, 528, 546. Indiana Mfg. Co. v. J. I. Case Threshing I\rach. Co. (148 Fed. 21), 600. Indiana Mfg. Co. v. J. I. Case Threshing ]\Iach. Co. (154 Fed. 365, 83 C. C. A. 343), 600. Indianapolis Freight Bureau v. Cleveland, C, C. & St. L. Ry. Co. (15 I. C. C. R. 504), 509. International Coal Mining Co. v. Penn. R. Co. (152 Fed. 557), 528. Int. Com. Com. v. Ala. Mid. R. Co. (69 Fed. 227), 504, 508, 509, 511. Int. Com. Com. v. Ala. Mid. R. Co. (74 Fed. 715, 21 C. C. A. 51, 41 U. S. App. 453, 5 I. C. R. 685), 55, 504, 508, 509, 511. Int. Com. Com. v. Ala. Mid. R. Co. (168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45), 55, 67, 78, 81, 205, 504, 508, 509, 511, 545. Int. Com. Com. v. Atchison, T. & S. F. R. Co. (50 Fed. 295), 511, 545. Int. Com. Com. v. Atchison, T. & S. F. R. Co. (149 U. S. 264, 37 L. Ed. 727, 13 Sup. Ct. 837), 533. Int. Com. Com. v. Baird (194 U. S. 25, 48 L. Ed. 860, 24 Sup. Ct. 563), 67, 160, 166, 534, 537, 582, 585. Int. Com. Com. v. Baltimore & 0. R. Co. (43 Fed. 37, 3 I. C. R. ' 392), 53, 67, 79, 504, 508, 509, 513, 571. Int. Com. Com. v. Baltimore & 0. R. Co. (145 U. S. 263, 36 L. Ed. 699, 4 I. C. R. 92, 12 Sup. Ct. 844), 55, 67, 75, 76, 77, 79, 504, 508, 509, 513, 533, 573. Int. Com. Com. v. Bellaire, Z. & C. Ry. Co. (77 Fed. 942), 500, 563. Int. Com. Com. v. Brimson (154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125), 3, 160, 500, 534, 535. Int. Com. Com. v. Chesapeake & Ohio Ry. Co. (128 Fed. 59), 508. Int. Com. Com. v. Chicago, B. & Q. R. Co. (94 Fed. 272), 545. 38 Table op Cases Cited. (Eefercnces are to Sections.) Int. Com. Com. v. Chicago, B. & Q. R. Co. (98 Fed. 173), 502, 508, 509. Int. Com. Com. v. Chicago, B. & Q. R. Co. (103 Fed. 249, 43 C. C. A. 209), 502, 508, 509. Int. Com. Com. v. Chicago, B. & Q. R. Co. (186 U. S. 320, 46 L. Ed. n82, 22 Sup. Ct. 824), 50, 502, 508, 509, 513, 545. Int. Com. Com. v. Chicago G. W. Ry. Co. (141 Fed. 1003), 52, 53, 54, 67, 504, 509. Int. Com. Com. v. Chicago G. W. Ry. Co. (209 U. S. 108, 52 L. Ed. 705, 28 Sup. Ct. ), 52, 53, 54, 55, 59, 67, 504, 509, 511. Int. Com. Com. v. Cincinnati, II. & D. R. Co. (146 Fed. 559), 59, 504, 508, 538, 545. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co. (56 Fed. 925), 500, 509, 511, 545. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co. (64 Fed. 981, 13 U. S. App. 700), 500, 534, 538, 545. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co. (76 Fed. 183), 504, 512, 537. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co. (162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700), 81, 500, 511, 539. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co. (167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896), 3, 50, 163, 255, 504, 512, 534, 537, 539. Int. Com. Com. v. Cincinnati, P. & V. R. Co. (124 Fed. 624), 509. Int. Com. Com. v. Clyde S. S. Co. (181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512), 81, 508, 509, 511, 545. Int. Com. Com. v. Detroit. G. H. & M. R. Co. (57 Fed. 1005, 4 I. C. R. 722), 504, 508, 509, 511, 534, 537, 539, 545. Int. Com. Com. v. Detroit, G. H. & M. R. Co. (167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306), 67, 78, 81, 500, 504, 508, 509, 511, 513, 534, 537. Int. Com. Com. v. Delaware etc. R. Co. (64 Fed. 723), 509, 531, 545. Int. Com. Com. v. East Tenn., Va. & Ga. Ry. Co. (85 Fed. 107), 504, 509, 511, 545. Int. Com. Com. v. East Tenn., Va. & Ga. Ry. Co. (99 Fed. 52, 39 C. C. A. 413), 511. Int. Com. Com. v. Harriman (157 Fed. 432), 535, 563. Table of Cases Cited. 39 (Eeferences are to Sections.) Int. Com. Com. v. Lake Shore & M. S. R. Co. (134 Fed. 942), 504, 545. Int. Com. Com. v. Lehigh Valley Ey. Co. (49 Fed. 117), 545. Int. Com. Com. v. Lehigh Valley Ry. Co. (74 Fed. 784), 504, 539. Int. Com. Com. v. Louisville & N. R. Co. (73 Fed. 409), 504, 508, 509, 537, 538, 539, 545. Int. Com. Cora. v. Louisville & N. R. Co. (101 Fed. 146), 545. Int. Com. Com. v. Louisville & N. R. Co. (102 Fed. 709), 67, 511, 545. Int. Com. Com. v. Louisville & N-. R. Co. (118 Fed. 613), 91, 509, 545. Int. Com. Com. v. Louisville & N. R. Co. (190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687), 55, 67, 81, 94, 509, 511. Int. Com. Com. v. Nashville, C. & St. L. Ry. Co. (120 Fed. 934), 504, 509, 511. Int. Com. Com. v. Philadelphia & R. R. Co. (123 Fed. 969), 537. Int. Com. Com. v. Reichman (145 Fed. 235), 500. Int. Com. Com. v. Southern Pac. Co. (74 Fed. 42), 555. Int. Com. Com. v. Southern Pac. Co. (123 Fed. 597), 503, 512, 545. Int. Com. Com. v. Southern Pac. Co. (132 Fed. 829), 503, 512, 513, 545. Int. Com. Com. v. Southern Pac. Co. (137 Fed. 606), 512, 545. Int. Com. Com. v. Southern Ry. Co. (105 Fed. 703), 511, 545. Int. Com. Com. v. Southern R}^ Co. (117 Fed. 741), 509. Int. Com. Com. v. Southern Ry. Co. (122 Fed. 800, 60 C. C. A. 540), 509. Int. Com. Com. v. Texas & Pac. Ry. Co. (52 Fed. 187), 504, 508, 509. Int. Com. Com. v. Texas & Pac. Ry. Co. (57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 L C. R. 408), 504, 508, 509, 513, 555. Int. Com. Com. v. Western & A. R. Co. (88 Fed. 186), 81, 504, 508, 509, 511. Int. Com. Com. v. Western & A. R. Co. (93 Fed. 83, 35 C. C. A. 217), 508, 509, 511, 534. Int. Com. Com. v. Western & A. R. Co. (181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512), 508, 509, 511, 534. 40 Table of Cases CitUD, (References are to Sections.) Int. Com. Com. v. Western New York & P. R. Co. (82 Fed. 192), 542. Interstate Stock Yards Co. v. Indianapolis U. Ry. Co. (99 Fed. 472), 252, 500, 509, 545, 580. Jackson v. St. Louis, A. & T. R. Co. (1 I. C. R. 599), 537. James v. Germania Iron Co. (107 Fed. 597, 46 C. C. A. 476), 206. James & Abbott v. Canadian Pac. R. Co. (5 I. C. C. R. 612, 4 I. C. R. 274), 528. James & Mayer Buggy Co. v. Cincinnati, N. 0. & T. P. R. Co. (4 I. C. C. R. 744. 2 I. C. R. 625, 3 I. C. R. 682), 500, 509. Jayne v. Loder (149 Fed. 21, 78 C. C. A. 653, 7 L. R. A. — N. S. —984), 606. Jerome Hill Cotton Co. v. Missouri, Kan. & Tex. R. Co. (6 I. C. C. R. 601), 504, 511. Jewett Bros. & JeAvett v. Chicago, M. & St. P. R. Co. (156 Fed. 160). 3, 253, 572. Jolm D. Park & Sons v. Hartman (153 Fed. 24, 82 C. C. A. 158, 12 L. R. A.— N. S.— 1135), 600. Johnson v. Chicago, St. Paul etc. R. Co. (9 I. C. C. R. 221), 509, 513, 528. Johnson v. Pensacola & P. R. Co. (16 Fla. 623), 75. Johnson v. Southern Pac. Co. (196 U. S. 1, 49 L. Ed. 363, 25 Sup. Ct. 158), 403. Johnson v. Towsley (13 Wall. 72, 20 L. Ed. 485), 206. Johnston-Larimer Dry Goods Co. v. Atchison, T. & S. F. R. Co. (6L C. C. R. 568), 509, 511. Johnston-Larimer Dry Goods Co. v. Atchison, T. & S. F. R. Co. (12 I. C. C. R. 47), 509, 511, 559. Johnston-Larimer Dry Goods Co. v. New York & Tex. S. S. Co. (12 I. C. C. R. 58). 509, 511. Johnston-Larimer Dry Goods Co. v. Wabash R. Co. (12 I. C. C. R. 51), 509. Joice & Co. V. 111. Cent. R. Co. (15 I. C. C. R. 239), 154, 528. Joint Traffic Asso. Case (171 U. S. 505, 569, 43 L. Ed. 287, 19 Sup. Ct. 25, 1 Fed. Anti-Trust Dec. 869), 55. Jones V. Eastern Counties R. Co. (3 C. B. N. S. 718), 79. Junod V. Chicago & N. W. Ry. Co. (47 Fed. 290), 511, 528. Table of Cases Cited. 41 (Eeferences are to Sections.) K. Kalispell Lumber Co. v. Great N. R. Co. (157 Fed. 845), 3. 253, 254, 271, 572. Kansas City Hay Dealers' Asso. v. IMissouri Pac. R}^ Co. (14 I. C. C. R. 597), 504. Kauffman v. Missouri Pac. Ry. Co. (4 I. C. C. R. 417, 3 I. C. R. 400). 509. Kemble v. Boston & A. R. Co. (8 I. C. C. R. 110), 500, 508, 511, 513. Kentucky & Ind. Bridge Co. v. Louisville & N. R. Co. (37 Fed. 567, 2 L. R. A. 289, 2 I. C. R. 351), 3, 5, 80, 200, 500, 502, 510. 534, 539,' 541, 545. Kentucky & Ind. Bridge Co. v. Louisville & N. R. Co. (2 I. C. C. R. 162, 2 L C. R. 102), 500, 502, 510. Kile & Morgan v. Deepwater Ry. Co. (15 I. C. C. R. 235), 159, 547. Kindel v. Adams Express Co. (13 I. C. C. R. 475), 51, 53, 63, 504, 509. Kindel v. Atchison, T. & S. F. Ry. Co. (8 I. C. C. R. 608), 509, 511. Kindel v. Atchison, T. & S. F. Ry. Co. (9 I. C. C. R. 606), 509, 511. Kindel v. New York, N. H. & H. R. Co. (15 I. C. C. R. 555), 206. King V. New York, N. H. & H. R. Co. (4 I. C. C. R. 251, 3 I. C. R. 272), 511. Kiunavey v. Terminal R. Asso. of St. Louis (81 Fed. 802), 504, 508, 513, 528. Kinsley v. Buffalo, N. Y. & P. R. Co. (37 Fed. 181), 509. Kiser v. Central of Ga. Ry. Co. (158 Fed. 193), 3, 253, 539, 572. Knoxville v. Knoxville Water Co. (212 U. S. 1, 53 L. Ed. 29 Sup. Ct. 148), 51, 52, 206. Knudsen -Ferguson Fruit Co. v. Chicago, St. P., M. & 0. R. Co. (149 Fed. 973), 528. Knudsen-Ferguson Fruit Co. v. Chicago, St. P., M. & 0. R. Co. (204 U. S. 670, 51 L. Ed. 672), 157, 528. Knuclsen-Ferguson Fruit Co. v. Mich. Cent. R. Co. (148 Fed. 968, 79 C. C. A. 483), 50, 513, 528. Koch Secret Service v. Louisville & N. R. Co. (13 I. C. C. R. 523), 509, 528. 42 Tabt.e of Cases Cited. (Eeferenees are to Sections.) Koehler, Ex parte (30 Fed. 867), 500. Koehler, Ex parte (31 Fed. 315, 12 Sawy. 44G), 505, 508, 511, 571. Kurry v. Kansas & C. P. Ry. (58 Kan. 6, 48 Pac. 579), 505. L. LaCrosse Mfrs. & Jobbers Union v. Chicago, M. & St. P. R. Co. (1 I. C. C. R. 629, 2 I. C. R. 9), 60, 94, 504. Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. R. Co. (30 Ohio St. 604), 206. Lake Shore & Mich So. R. v. Ohio (173 U. S. 285, 43 L. Ed. 702, 19 Sup. Ct. 465), 303. Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co. (13 I. C. C. R. 148), 64, 504, 528. Laning-Harris Coal & Grain Co. v. St. Louis & S. F. R. Co. (15 L C. C. R. 37),154, 528. Larrison v. Chicago etc. R. Co. (1 I. C. C. R. 147, 1 I. C. R. 369), 508, 513, 573. Larsen Canning Co. (Wm.) v. Chicago & N. W. Ry. Co. (13 I. C. C. R. 286), 528. Larus & Bro. Co. v. American Tobacco Co. (163 Fed. 712), 600. La Salle etc. R. Co. v. Chicago & N. W. Ry. Co. (13 I. C. C. R. 610), 513,528,537. Lehigh Valley R. Co. v. Penn. (145 U. S. 192, 36 L. Ed. 672, 4 L C. R. 87, 12 Sup. Ct. 806), 7, 500. Lehigh Valley R. Co. v. Rainey (112 Fed. 487), 508, 509, 528. Lelmiann, Higginson & Co. v. Southern Pac. Co. (4 I. C. C. R. 1, 3 I. C. R. 80), 504. Lehmann, Higginson & Co. v. Tex. & Pac. Ry. Co. (5 I. C. C. R. 44, 3 I. C. R. 706), 513, 519. Lehman-Higginson Gro. Co. v. Atchison, T. & S. F. R. Co. (10 I. C. C. R. 460), 509, 511. Lennon, Ex parte (64 Fed. 320, 22 U. S. App. 561), 510. Lennon, Ex parte (166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658), 510. Leonard v. Chicago, M. & St. P. Ry. Co. (12 I. C. C. R. 492), 528. Leonard v. Kansas City S. R. Co. (13 I. C. C. R. 573), 500. Lincoln Board of Trade v. Mo. Pac. R. Co. (2 I. C. C. R. 147, 2 T. C. R. 95), 509. Table of Cases Cited. 43 (Eeferences are to Sections.) Lincoln Creamery Co. v. Union Pac. R. Co. (5 I. C. C. R. 156, 3 I. C. R. 794), 62, 504. Lindsay Bros. v. Grand Rapids & Ind. Ry. Co. (15 I. C. C. R. 182), 504. Lippman & Co. v. 111. Cent. R. Co. (2 I. C. C. R. 584, 2 I. C. R. 414), 60, 94, 504,508. Little Rock & M. R. Co. v. East Tenn., Va. & Ga. Ry. Co. (3 L C. C. R. 1, 2 L C. R. 454), 503. Little Rock & I\I. R. Co. v. East Tenn., Va. & Ga. Ry. Co. (47 Fed. 771), 509, 510,534. Little Rock & M. R. Co. v. East Tenn., Va. & Ga. Ry. Co. (159 IT. S. 698, 40 L. Ed. 311, 16 Sup. Ct. 189), 509. Little Rock etc. R. Co. v. St. Louis etc. R. Co. (41 Fed. 559), 510, 534, 540. Little Rock & ]\r. R. Co. v. St. Louis, I. M. & S. Ry. Co. (59 Fed. 400), 80, 509. 510. Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co. (63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192), 80, 509, 510. Loder v. Jayne (142 Fed. 1010, 2 Fed. Anti-Trust Dec. 976), 606. Loewe v. Lawlor (130 Fed. 633, 2 Fed. Anti-Trust Dec. 563, 142 Fed. 216, 2 Fed. Anti-Trust Dec. 854), 600. Loewe v. Lawlor (148 Fed. 924), 600. Loewe v. Lawlor (208 U. S. 274, 52 L. Ed. 488, 28 Sup. Ct. 301), 600. Logan et al. Com. of Northv/estern Grain Asso. v. Chicago & N. W. R. Co. (2 L C. C. R. 604, 2 I. C. R. 431), 59, 504, 509. Logan Coal Co. v. Penn. R. Co. (154 Fed. 497), 509. Lord V. Goodall N. & P. S. S. Co. (102 U. S. 541, 26 L. Ed. 224), 500. Loud V. South Caro. R. Co. (5 I. C. C. R. 529, 4 I. C. R. 205), 53, 504, 528. Louisville & N. R. Co. v. Behlmer (169 U. S. 644, 42 L. Ed. 889, 18 Sup. Ct. 502), 545. Louisville & N. R. Co. v. Behlmer (175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209), 55, 67, 81, 204, 205, 500, 511, 545. Louisville & N. R. Co. v. Eubank (184 U. S. 27, 46 L. Ed. 416, 22 Sup. Ct. 277), 81, 308. 44 Table of Cases Cited. (References are to Sections.) Louisville & N. R. Co. v. Int. Com. Com. (108 Fed. 988, 46 C. C. A. 685), 511. Louisville & N. R. Co. v. Kentucky (21 Ky. Law Rep. 232, 51 S. W. 164, 1012, 106 Ky. 633), 308. Louisville & N. R. Co. v. Kentucky (161 U. S. 677, 40 L. Ed. 84i), 16 Sup. Ct. 714), 309. Louisville & N. R. Co. v. Kentucky (183 U. S. 503, 46 L. Ed. 298. 22 Sup. Ct. 95), 81, 308. Louisville & N. R. Co. v. Mottley (211 U. S. 149, 53 L. Ed. 29 Sup. Ct. 42), 200,405. Louisville & N. R. Co. v. West Coast Naval Stores Co. (198 U. S. 483, 49 L. Ed. 1135, 25 Sup. Ct. 745), 80. Louisville, N. O. & T. Ry. Co. v. Mississippi (66 Miss. 662, 5 L. R. A. 132, 6 So. 203, 2 I. C. R. 615, 14 Am. St. Rep. 509), 307. Louisville, N. 0. & T. Ry. Co. v. Mississippi (133 U. S. 587, 33 L. Ed. 784, 10 Sup. Ct. 348, 2 I. C. R. 801), 307. Loup Creek Colliery Co. v. Virginian Ry. Co. (12 I. C. C. R. 471), 66, 503, 504. Lowenstein v. Evans (69 Fed. 908, 1 Fed. Anti-Trust Dec. 598), 600. Lo^xry v. Tile, Mantel & Grate Asso. (98 Fed. 817, 1 Fed. Anti- Trust Dec. 995), 600. Lowry v. Tile, Mantel & Grate Asso. (106 Fed. 38, 2 Fed. Anti- Trust Dee. 53), 600, 606. Lundquist v. Grand T. W. Ry. Co. (121 Fed. 915), 508. Lykes S. S. Co. v. Commercial Union (13 I. C. C. R. 310), 500. Lyne v. Delaware, L. & W. R. Co. (170 Fed. 847), 528, 547. M. McAlister v. Henkel (201 U. S. 90, 50 L. Ed. 671, 26 Sup. Ct. 385, 2 Fed. Anti-Trust Dec. 919), 600. McCaull-Dinsmore Co. v. Chicago G. W. Ry. Co. (14 I. C. C. R. 527), 528. McClelen v. Southern Ry. Co. (6 I. C. C. R. 588), 511. McConnell v. Camors-lMcConnell Co. (140 Fed. 987, 72 C. C. A. 681, 2 Fed. Anti-Trust Dec. 825), 600. McConnell v. Camors-McConnell Co. (152 Fed. 321, 81 C. C. A. 429), 600. McCormick v. Chicago, B. & Q. R. Co. (14 I. C. C. R. 611), 507. Table of Cases Cited. 45 (References are to Sections.) McCullocli V. Maryland (17 U. S. 4 Wheat 316, 4 L. Ed. 579), 3. McDonald v. Hovey (110 U. S. 619, 28 L. Ed. 269, 4 Sup. Ct. 142), 79. McDuffie V. Portland & R. R. Co. (52 N. H. 430, 13 Am. Rep. 72), 251. McGillis & Gibbs Co. v. Chicago, M. & St. P. R. Co. (15 I. C. C. R. 329), 511. McGrew v. Missouri Pac. Ry. Co. (8 I. C. C. R. 630), 158, 509, 528. MacLoon v. Boston & M. R. Co. (9 I. C. C. R. 642), 91, 504, 508, 509. MacLoon v. Cliicago & N. W. R. Co. (5 I. C. C. R. 84, 3 I. C. R. 711), 528, 545. McMorran v. Grand Trunk Ry. Co. (3 I. C. C. R. 252, 2 I. C. R. 14, 604), 504, 508, 509. McNiel, Ex parte (80 U. S. 13 Wall 236, 20 L. Ed. 624), 200. McNeill V. Southern Ry. Co. (202 U. S. 543, 50 L. Ed. 1142, 26 Sup. Ct. 722), 304. McRae T. Ry. Co. v. Southern Ry. Co. (12 I. C. C. R. 270), 507. Macon Grocery Co. v. Atlantic C. L. R. Co. (163 Fed. 736), 572. Macon Grocery Co. v. Atlantic C. L. R. Co. (163 Fed. 738), 3, 253, 254, 528. Majestic Coal & Coke Co. v. 111. Cent. R. Co. (162 Fed. 810), 509, 574. Manufacturers' and Jobbers' Union v. Minneapolis & St. L. Ry. Co. (4 I. C. C. R. 79, 3 I. C. R. 115), 57, 62, 504. Marten v. Louisville & N. R. Co. (9 I. C. C. R. 581), 62, 509, 511. Martin v. Chicago, B. & Q. R. Co. (2 I. C. C. R. 25, 2 I. C. R. 32), 61, 94, 537. Martin v. Hunter (14 U. S. 1 Wlieat. 304, 4 L. Ed. 97), 200. Martin v. Southern Pac. Co. (2 I. C. C. R. 1, 2 I. C. R. 1), 504, 511. Mattingly v. Penn. Co. (3 I. C. C. R. 592, 2 I. C. R. 806), 500. Mayor of Bristol v. Virginia & S. W. Ry. Co. (15 I. C. C. R. 453), 504 Mayor etc. of Tifton v. Louisville & N. R. Co. (9 I. C. C. R. 160), 67, 504. 46 Table of Cases Cited. ^ (Eeferences are to Sections.) Mayor etc. of Wicliita v. Atchison, T. & S. F. Hy. Co. (9 I. C. C. R. 534), 54, 85, 504, 509, 511, GOO. Mayor etc. of Wichita v. Chicago, R. I. & P. R. Co. (9 I. C. C. R. 569), 509. Mayor etc. of Widiita v. Missouri Pac. R. Co. (10 I. C. C. R. 35), 509. Meeker v. Lehigh V. R. Co. (162 Fed. 354), 528, 600. Memphis & L. R. R. Co. v. Southern Ex. Co. (117 U. S. ], 29 L. Ed. 791, 6 Sup. Ct. 542), 251, 510, 541. Menaeho v. Ward (27 Fed. 529, 23 Blatchf. 502), 251, 253. Menefee Lumber Co. v. Tex. & Pac. Ry. Co. (15 I. C. C. R. 49), 528. Merchants' Coal Co. v. Fairmont Coal Co. (160 Fed. 769, 88 C. C. A. 23), 537, 574. Merchants' Coal Co. v. Fairmont Coal Co. (163 Fed. 1021), 574. Merchants' Cotton Compress & Storage Co. v. Ins. Co. of North America (151 U. S. 368, 38 L. Ed. 195, 14 Sup. Ct. 367), 508. Merchants' Freight Bureau of Little Rock v. ^Midland Valley etc. R. Co. (13 I. C. C. R. 243), 509. Merchants' Traffic Asso. v. New York, N. H. & II. R. Co. (13 L C. C. R. 225), 504. Merchants' Union of Spokane Falls v. No. Pac. R. Co. (5 I. C. C. R. 478, 4 I. C. R. 183), 60, 500, 511, 539. Mershon v. Cent. R. of N. J. (10 I. C. C. R. 456), 509. IMetcalf V. American School Fur. Co. (108 Fed. 909, 2 Fed. Anti-Trust Dec. 75), 606. Metcalf V. American School Fur. Co. (113 Fed. 1020, 51 C. C. A. 599, 2 Fed. Anti-Trust Dec. Ill), 606. Metcalf V. American School Fur. Co. (122 Fed. 115, 2 Fed. Anti- Trust Dec. 234), 606. IMichie V. New York, N. H. & H. R. Co. (151 Fed. 694), 504. 509. :\richigan Box Co. v. Flint etc. R. Co. (6 I. C. C. R. 335), 509. Michigan Buggy Co. v. Grand Rapids & Ind. R. Co. (15 I. C. C. R. 297), 504. Miles Medicine Co. (Dr.) v. JajTies Drug Co. (149 Fed. 838), 600. Table of Cases Cited. 47 (References are to Sections.) Miles Medicine Co. (Dr.) v. John D. Park & Sons Co. (164 Fed. 803, C. C. A. ) , 600. Milk Producers' Asso. v. Delaware etc. R. Co. (7 I. C. C. R. 92), 500, 504, 509, 511, 537. Miller V. 111. Cent. R. Co. (168 Fed. 982), 405. Milwaukee etc. Brewing Co. v. Chicago, M. & St. P. Ry. Co. (13 I. C. C. R. 28), 504. Mines v. Schribner (147 Fed. 927, 2 Fed. Anti-Trust Dec. 1035), 600. Minneapolis & St. L. R. Co. v. Herrick (127 U. S. 210, 32 L. Ed. 109, 8 Sup. Ct. 1176), 404. Minneapolis & St. L. R. Co. v. Minnesota (186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. 900), 52, 65, 504. Minneapolis Threshing INIach. Co. v. Chicago, M. & St. P. Ry. Co. (14 I. C. C. R. 536), 528. Minnesota v. Northern Securities Co. (123 Fed. 692, 2 Fed. Anti-Trust Dec. 246), 600. I\Iinnesota v. Northern Securities Co. (194 U. S. 48, 48 L. Ed. 870, 24 Sup. Ct. 598, 2 Fed. Anti-Trust Dec. 533), 600. Mississippi Railroad Com. v. 111. Cent. R. Co. (203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90), 303. Missouri & 111. Rd., Tie & Lumber Co. v. Cape etc. R. Co. (1 I. C. C. R. 30, 1 I. C. R. 607), 500. Missouri & Kansas Shippers' Asso. v. Atchison, T. & S. F. Ry, Co. (13 I. C. C. R. 411), 159, 528, 537. Missouri & Kansas Shippers' Asso. v. Missouri, K. & T. Ry. Co. (12 I. C. C. R. 483), 511, 528, 537. Missouri, K. & T. Ry. Co. v. Int. Com. Com. (164 Fed. 645), 206, 539, 540, 555. Missouri, K. & T. Ry. Co. v. McCann (174 U. S. 580, 43 L. Ed. 1093, 19 Sup. Ct. 755), 313. Missouri, K. & T. Ry. Co. v. Trinity Co. Lumber Co. (1 Tex. Civ. App. 553, 21 S. W. 290), 89. Missouri Pac. R. Co. v. Larabee Flour Mills Co. (211 U. S. 612, 53 L. Ed. , 29 Sup. Ct. 214), 300, 304, 507. Missouri Pac. R. Co. v. Mackey (127 U. S. 205, 32 L. Ed. 107, 8 Sup. Ct. 13 61), 404. Missouri Pac. R. Co. v. Tex. & Pac. Ry. Co. (31 Fed. 862), 511. Missouri Pac. R. Co. v. United States (189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507), 534, 580, 583. 48 Tablk of Cases Cited. (References are to Sections.) Missouri River Rate Case (Chicago, R. I. & P. R. Co. v. Int. Com. Com., 171 Fed. 680), 206, 539, 555, 557. Mitchell Coal & Coke Co. v. Cassatt (207 U. S. 181, 52 L. Ed. 160, 28 Sup. Ct. 108), 500. :\[obile & 0. R. Co. v. Dismukes (94 Ala. m. 10 So. 289, 4 I. C. R. 200), 90. Momsen & Co. v. Gila Valley etc. Ry. Co. (14 I. C. C. R. 614), 528. Monarch Tobacco Works v. American Tobacco Co. (165 Fed. 774), 606. Montague v. Lowry (193 U. S. 38, 48 L. Ed. 608, 24 Sup. Ct. 307, 2 Fed. Anti-Trust Dec. 327), 600, 606. Montague v. Lowry (115 Fed. 27, 52 C. C. A. 621, 2 Fed. Anti- Trust Dec. 112), 600, 606. Montana Cent. R. Co. v. United States (164 Fed. 400, C. C. A. ), 401, 590. Moore v. Robbins (96 U. S. 530, 24 L. Ed. 848), 206. Moore v. United States (85 Fed. 465), 29 C. C. A. 269, 1 Fed. Anti -Trust Dec. 815), 602. Morgan Grain Co. (A. P.) v. Atlantic C. L. R. Co. ( I. C. C. R. ), 56. Morgan v. Missouri, K. & T. Ry. Co. (12 I. C. C. R. 525), 500, 519, 528. Morrell v. Union Pac. R. Co. (6 I. C. C. R. 121, 4 I. C. R. 469), 62, 504. Morse Produce Co. v. Chicago, M. & St. P. Ry. Co. (15 I. C. C. R. 334), 528. Moseley v. United States (35 Ct. Claims 355), 561. Moses Taylor (The) (71 U. S. 4 Wall 429, 18 L. Ed. 397), 200. Mottley V. Louisville & N. R. Co. (150 Fed. 406), 505. Munn V. Illinois (94 U. S. 4 Otto. 113, 24 L. Ed. 77), 3, 50, 206. ilurphy, Wasey & Co. v. Wabash R. Co. (5 I. C. C. R. 122, 3 I. C. R. 725), 539. Murray v. Chicago & N. W. R. Co. (92 Fed. 868, 35 C. C. A. 62), 200, 528. Murray v. Chicago & X. W. R. Co. (62 Fed. 24), 200, 528. Muscogee Commercial Club v. Missouri, K. & T. Ry. Co. (13 I. C. C. R. 68), 559. Myers v. Penn. Co. (2 I. C. C, R, 573, 2 I. C. R. 403, 544), 162, 537, 559. Table of Cases Cited. 49 (References are to Sections.) N. Nash V. Page (80 Ky. 539, 44 Am. Rep. 490), 206. Nashville, Cliatta. & St. L. Ry. Co. v. Alabama (128 U. S. 96, 32 L. Ed. 352, 9 Sup. Ct. 28), 312. National Folding Box Paper Co. v. Robertson (99 Fed. 985, 2 Fed. Anti-Trust Dec. 4), 600. National Harrow Co. v. Hench (76 Fed. 667, 1 Fed. Anti-Trust Dec. 610), 600. National Harrow Co. v. Hench (83 Fed. 36, 27 C. C. A. 349, 39 L. R. A. 299, 1 Fed. Anti-Trust Dec. 742), 600. National Harrow Co. v. Hench (84 Fed. 226, 1 Fed. Anti- Trust Dec. 746), 600. National Harrow Co. v. Quick (67 Fed. 130, 1 Fed. Anti-Trust Dec. 443, 608), 600. National Harrow Co. v. Quick (74 Fed. 236, 20 C. C. A. 410), 600. National Machy. & Wrecking Co. v. Pittsburg etc. R. Co. (11 I. C. C. R. 581), 509. National Hay Asso. v. Lake Shore & M. S. R. Co. (9 I. C. C. R. 264), 50, 504. Nebraska-Iowa Grain Co. v. Union Pac. R. Co., 15 I. C. C. R. 90), 86. Nelson v. United States (201 U. S. 92, 50 L. Ed. 673, 26 Sup. Ct. 358, 2 Fed. Anti-Trust Dec. 920), 600. New Albany Furniture Co. v. Mobile etc. R. Co. (13 I. C. C. R. 594), 528. New Jersey Fruit Ex. v. Cent. R. Co. of N. J. (2 I. C. C. R. 142, 2 I. C. R. 84), 500. Newland v. Northern Pac. R. Co. (6 I. C. C. R. 131, 4 I. C. R. 474) , 60, 94. New Orleans Cotton Ex. v. Cincinnati. N. 0. & T. P. R. Co. (2 I. C. C. R. 375, 2 I. C. R. 289), 500, 504, 509. New Orleans Cotton Ex. v. 111. Cent. R. Co. (3 I. C. C. R. 534, 2 I. C. R. 777), 500 504, 508, 509. New Orleans Cotton Ex. v. Louisville, N. 0. & T. R. Co. (4 I. C. C. R. 694, 3 L C. R. 523), 513. New Orleans Live Stock Ex. v. Tex. & Pac. Ry. Co. (10 I. C. C. R. 327), 509. 50 Table of Cases Cited. (References are to Sections.) Newport N. & M. V. R. Co. v. United States (61 Fed. 488, 9 C. C. A. 579), 590. Newton Gum Co. v. Chicago, B. & Q. R. Co. (16 I. C. C. R. 341), 513. New York & N. Hy. Co. v. New York & N. E. Ry. Co. (50 Fed. 867), 80, 510. New York & N.Ry. Co. v. New York & N. E. Ry. Co. (4 I. C. C. R. 702. 3 1. C. R. 542),510. New York Board of Trade v. Pcnn. R. Co. (4 I. C. C. R. 447, 2 I. C. R. 660, 734, 755, 800, 3 I. C. R. 417), 504, 508, 513. New York Hay Asso. v. Penn. R. Co. (14 I. C. C. R. 178), 504. New York Produce Ex. v. Baltimore & 0. R. Co. (7 I. C. C. R. 612), 509. New York Produce Ex. v. New York etc. R. Co. (3 I. C. C. R. 137. 2 I. C. R. 13. 28, 553), 508, 513, 515. New York C. & H. R. R. Co. v. Int. Com. Com. (168 Fed. 131), 204, 206. New York C. & H. R. R. Co. v. Int. Com. Com. ( Fed. ) , 206. New York C. R. Co. v. Lockwood (17 Wall 84 U. S. 357, 21 L. Ed. 627), 201. New York C. & H. R. R. Co. v. United States (165 Fed. 833, CCA. ), 401, 590. New York C & H. R. R. Co. v. United States (166 Fed. 267, CCA. ), 522. New York C & H. R. R. Co. v. United States (212 U. S. 481, 53 L. Ed. , 29 Sup. Ct. 304), 95, 521, 522, 523. New York C & H. R. R. Co. v. United States (212 U. S. 500, 53 L. Ed. . 29 Sup. Ct. 309), 95, 522. New York C & H. R. R. Co. v. United States (212 U. S. 509, 53 L. Ed. , 29 Sup. Ct. ), 153, 522. New York, N. H. & H. R. Co. v. Int. Com. Com. (200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272), 6, 86, 92, 93, 95, 508. New York, N. H. & H. R. Co. v. New York (165 U. S. 628, 41 L. Ed. 853, 17 Sup. Ct. 418), 311, 312. New York, N. H. & H. R. Co. v. New York (142 N. Y. 646, 37 N. E. 568), 312. New York, N. H. & H. R. Co. v. Piatt (7 I. C C R. 323), 508, 513, 516, 519. Table of Cases Cited. 51 (Eeferences are to Sections.) Nicola, Stone & Myers Co. v. Louisville & N. R. Co. (14 I. C. C. R. 199), 153, 154, 155, 159, 163, 528, 539, 547, 577. Nicolson V. Great W, Ry. Co. (5 C. B. (N. S.) 366), 509. Nobles Bros. Gro. Co. v. Fort Worth & D. C. R. Co. (12 I. C. C. R. 242), 509. Nollenberger v. Missouri Pac. Ry. Co. (15 I. C. C. R. 595), 159, 537. NorfoUv & Western R. Co. v. Pennsylvania (136 U. S. 114, 34 L. Ed. 394, 10 Sup. Ct. 958), 500. Northern Pac. Ry. Co. v. Int. Com. Com. (P©rtland Gateway Case), ( Fed. ), 206. Northern Pac. R. Co. v. Pacific Coast Lumber Mfrs. Asso. (165 Fed. 1), 3, 200, 254, 271, 572, 604. Northern Pac. R. Co. v. Washington ex rel. Dustin (142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 283), 510. Northern Securities Co. v. Harriman (134 Fed. 331, 67 C. C. A. 245, 2 Fed. Anti-Trust Dec. 618), 603. Northern Securities Co. v. United States (193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679, 2 Fed. Anti-Trust Dec. 338), 309, 600. North Lonsdale Iron & Steel Co. v. Furriers' L. & N. W. & M. Ry. Co. (7 Ry. & Canal Traffic Cas. 146, 60 L. J. Q. B. 419), 94. O. Oregon & Washington Lumber Mfrs. Asso. v. Union Pac. R. Co. (14 L C. C. R. 1), 206. Oregon S. L. & U. N. Ry. Co. v. Ilwaco Ry. & Nav. Co. (51 Fed. 611), 510. Oregon Short Line v. Northern Pac. R. Co. (3 I. C. C. R. 264, 2 I. C. R. 639), 537. Oregon S. L. & U. N. Ry. Co. v. Northern Pac. R. Co. (51 Fed. 465), 80, 509, 510. Oregon S. L. & U. N. Ry. Co. v. Northern Pac. R. Co. (61 Fed. 158, 9 C. C. A. 409), 80, 509, 510. Osborn v. Bank (9 Wheat. 738, 6 L. Ed. 204), 200. Osborne v. Chicago & North W. Ry. Co. (48 Fed. 49), 511, 528. Oshkosh Logging Tool Co. v. Chicago & N. W. Ry. Co. (14 I. 0. C. R. 109), 547. 52 Table of Cases Cited. (References are to Sections.) Otis Elevator Co. v. Geiger (107 Fed. 131, 2 Fed. Anti-Trust Dec. 66), 600. Ottumwa Bridge Co. v. Chicago, M. & St. P. Ry. Co. (14 I. C. C. R. 121), 504, 528. Oxlade v. North Eastern R. Co. (1 C. B. N. S. 454, 26 L. J. C. P. 129, 1 N. &Mac. 72), 79. P. Pacific Coast Jobbers' & Mfgrs'. Asso. v. Southern Pac. Co. (12 I. C. C. R. 319), 513. Pacific Coast Lumber Mfrs. Asso. v. Northern Pac. R. Co. (14 I. C. C. R. 23), 59, 165, 542. Pacific Coast S. S. Co. v. Railroad Comrs. (9 Sawy. 253, 18 Fed. 10), 500. Page V. Delaware, L. & AV. R. Co. (6 I. C. C. R. 148, 4 I. C. R. 525), 509, 531, 537. Page V. Delaware, L. & W. R. Co. (6 I. C. C. R. 548), 504, 509, 537, 559. Paine Bros. v. Lehigh V. R. Co. (7 I. C. C. R. 218), 82, 508. Pankey v. Richmond & D. R. Co. (3 I. C. C. R. 658, 3 I. C. R. 33), 528. Park & Sons (John D.) v. Hartman (153 Fed. 24, 82 C. C. A. 158, 12 L. R. A. (N. S.) 1135), 600. Parks V. Cincinnati & M. V. R. Co. (10 I. C. C. R. 47), 87. Parsons v. Chicago & N. W. R. Co. (167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887), 75, 81, 508, 509, 511, 528. Parsons v. Chicago & N. W. R. Co. (63 Fed. 903, 11 C. C. A. 489, 37 U. S. App. 394), 509, 511, 528. Paxton Tie Co. v. Detroit Southern R. Co. (10 I. C. C. R 422), 528 PajTie-Gardner Co. v. Louisville & N. R. Co. (13 I. C. C. R. 638), 504. Peavey & Co. (F. H.), Omaha Elevator Co. et al. v. U. P. R. Co. and ]\Iartin A. Knapp, et al., composing Int. Com. Com. ( Fed. ),206. Pecos Mercantile Co. v. Atchison, T. & S. F. Ry. Co. (13 I. C. C. R. 173), 511. Peik V. Chicago & N. W. R. Co. (94 U. S. 164, 24 L. Ed. 97), 206. Table of Cases Cited. 53 (Eeferenees are to Sections.) Pennsylvania Co. v. Louisville, N. A. & C. R. Co. (3 I. C. C. R. 223, 2 1. C. R. 603), 537. Pennsylvania Millers' State Asso. v. Philadelphia & R. R. Co. (8 I. C. C. R. 531), 50, 500, 504, 511, 513. Pennsylvania R. Co. v. Hughes (191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. 132), 313. Pennsylvania Retining Co. v. Western N. Y. & P. R. Co. (208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. ), 500, 528, 534, 545, 546. Pennsylvania Sugar Refining Co. v. American Sugar Refining Co. (160 Fed. 144), 606. Pennsylvania Sugar Refining Co. v. American Sugar Refining Co. (166 Fed. 254, C. C. A. ), 606. People V. Budd (117 N. Y. 1, 5, L. R. A. 559, 22 N. E. 670), 206. People V. Chicago, I. & L. Ry. Co. (223 111. 581, 79 N. E. 144), 563. People's Tobacco Co. v. American Tobacco Co. (170 Fed. 396, CCA. ),600. Peny v. Florida, C & P. R. Co. (5 I. C C R. 97, 3 I. C R. 740), 511, 528. Pettibone v. United States (148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. 542), 600. Phelps V. Tex. & Pac. R. Co. (6 I. C C R. 36, 4 I. C R. 44, 104, 363), 508. Phillips V. Grand Trunk Western R. Co. (11 I. C C. R. 659), 91, 509. Phillips V. lola Portland Cement Co. (125 Fed. 593, 61 C C A. 19, 2 Fed. Anti-Trust Dec. 284), 601. Phillips V. lola Portland Cement Co. (192 U. S. 606, 48 L. Ed. 585, 24 Sup. Ct. 850), 601. Phillips, Bailey & Co. v. Louisville & N. R. Co. (8 I. C C R. 93), 509, 511. Phillips-Tra wick- James Co. v. Southern Pac! Co. (13 I. C C R. 644), 511. Pickering Phipps v. London & N. W. Ry. Co. (2 Q. B. D. (1882) 229), 67. Pitts V. St. Louis & S. F. Ry. Co. (10 I. C C. R. 684), 513. Pittsburg etc. R. Co. v. Baltimore & 0. R. Co. (3 I. C C R. 465, 2 L C R. 572, 729), 508, 513, 573. 54 Table of Cases Cited. (Eeferenees are to Sections.) Planters Compress Co. v. Cleveland etc. Ry. Co. (11 I. C. C. R. 382, 606), 504, 508. Plessy V. Ferguson (163 U. S. 537, 41 L. Ed. 256, 16 Sup. Ct. 1138), 307. Pollock V. Farmers' Loan & Trust Co. (158 U. S. 601, 39 L. Ed. 1108, 15 Sup. Ct. 912), 407. Ponca City Milling Co. v. Missouri, K. & T. Ry. Co. (12 I. C. C. R. 26), 508, 509. Pond-Decker Lumber Co. v. Spencer (86 Fed. 840, 30 C. C. A. 430), 90, 513. Poor V. Chicago, B. & Q. R. Co. (12 L C. C. R. 469), 559. Poor Grain Co. v. Chicago, B. & Q. R. Co. (12 I. C. C. R. 418), 90, 504, 513, 519, 528. Powhattan Coal & Coke Co. v. Norfolk & W. R. Co. (13 I. C. C. R. 69), 509. Pooling Freights, Re (115 Fed. 588), 512, 529. Potlach Lumber Co. v. Spokane Falls & N. Ry. Co. (157 Fed. 588), 3, 253, 572. Prentis v. Atlantic C. L. R. Co. (211 U. S. 210, 53 L. Ed. 29 Sup. Ct. 67), 3,204. Prescott & A. C. R. Co. v. Atchison, T. & S. F. R. Co. (73 Fed. 438, 1 Fed. Anti-Trust Dec. 604), 80, 510, 600. Proctor V. Cincinnati, H. & D. Ry. Co. (4 I. C. C. R. 87, 3 I. C. R. 131), 59. Proctor & Gamble v. Cincinnati, H. & D. Ry. Co. (9 I. C. C. R. 440), 59, 83, 89, 504. Proctor & Gamble v. Cincinnati, H. & D. R. Co. (4 I. C. C. R. 443, 3 I. C. R. 374), 559. Producers' Pipe Line Co. v. St. Louis, I. i\r. & S. Ry. Co. (12 L C. C. R. 186), 537. Providence Coal Co. v. Providence & W. R. Co. 1 I. C. C. R. 107, 1 I. C. R. 316, 363), 508, 509. Pueblo Transportation Asso. v. Southern Pac. Co. (14 I. C. C. R. 82), 513. Pullman Palace Car Co. v. Missouri Pac. R. Co. (115 U. S. 587, 29 L. Ed. 499, 6 Sup. Ct. 194), 510. Q. Quimby v. Clyde S. S. Co. (12 I. C. C. R. 392), 509. Table of Cases Cited. 55 (References are to Sections.) E. Kahway V. R. Co. v. Delaware, L. & W. R. Co. (14 I. C. C. R. 191), 6, 507, 510. Rail & River Coal Co. v. Baltimore & 0. R. Co. (14 I. C. C. R. 86), 164, 206, 539. Railroad Commission Cases (Stone v. Farmers' L. & T. Co.), (116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334), 3, 206. Railroad Com. of Ala. v. Cent, of Ga. Ry. Co. (170 Fed. 225, CCA. ),206. Railroad Com. of Fla. v. Savannah, F. & AV. R. Co. (5 I. C C R. 13, 3 I. C R. 688), 500, 537, 538. Railroad Com. of Fla. v. Savannah, F. & W. R. Co. (5 I. C C R. 136, 3 I. C R. 750), 559. Railroad Com. of Ga., Trammell, et al., v. Clyde S. S. Co. (5 I. C C R. 324, 4 I. C R. 120), 76, 81, 500, 508, 509, 511, 537. Railroad Comrs. of Kansas v. Atchison, T. & S. F. Ry. Co. (8 I. C C R. 304), 509, 511. Railroad Comrs. of Kentucky v. Cincinnati, N. 0. & T. P. R. Co. (7 I. C C R. 380), 511. Railroad Com. of Kentucky v. Louisville & N. R. Co. (10 I. C C R. 173), 510. Railroad Com. of Kentucky v. Louisville & N. R. Co, (13 I. C C R. 300), 511. Railroad Com. of Mississippi v. 111. Cent. R. Co. (203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90), 303. Railroad Com. of Ohio v. Wheeling & L. E. R. Co. (12 I. C C R. 398), 539. Randolph Lumber Co. v. Seaboard A. L. Ry. Co. (13 I. C C R. 601), 509. Randolph Lumber Co. v. Seaboard A. L. Ry. Co. (14 I. C C R. 338), 504, 559. Ransome v. Eastern Counties Ry. Co. (1857), (1 C B. N. S. 437), 26 L. J. C P. 91), 67, 79. Ratican v. Terminal R. Asso. (114 Fed. 666), 159, 528. Ra worth v. Northern Pac. R. Co. (5 I. C C R. 234, 3 I. C R. 857), 500, 511. Rawson v. Newport News & M. V. R. Co. (3 I. C C R. 6, 266, 2 I. C R. 626), 528, 545. 56 Table op Cases Cited. (Keferenccs are to Sections.) Raymond v. Chicago, M. & St. P. Ry. Co. (1 I. C. C. R. 230, 1 I. C. R. 627), 504, 508, 509. Re Alleged Disturbance in Passenger Rates by Canadian Pa- cific Ry. Co. (8 I. C. C. R. 71), 511. Re Alleged Excessive Rates on Food Products (4 I. C. C. R. 48, 116, 3 I. C. R. 90, 93, 151), 51, 52, 54, 59, 104, 537. Re Alleged Unlawful Charges for Transportation of Vegetables (8 I. C. C. R. 585), 513. Re Alleged Unlawful Discrimination Against Enterprise Trans- portation Co. (11 I. C. C. R. 587), 541. Re Alleged Unlawful Rates and Practices (7 I. C. C. R. 240), 7, 85. Re Alleged Unlawful Rates and Practices in Transportation of Coal (10 I. C. C. R. 473), 513. Re Alleged Unlawful Rates and Practices in Transportation of Cotton (8 I. C. C. R. 121), 500. Re Alleged Unlawful Rates and Practices in Transportation of Grain (7 I. C. C. R. 33), 508, 513. Re Alleged Unlawful Rates and Practices in Transportation of Grain and Grain Products (7 I. C. C. R. 240), 508. Re Alleged Violations of the Act of the St. Louis & S. F. Ry. Co. (8 I. C. C. R. 290), 500, 509, 511. Re Alleged Violation of Fourth Section (7 I. C. C. R. 61), 511. Re Allowances to Elevators by Union Pacific R. Co. (10 I. C. C. R. 309), 86. Re Allowances to Elevators by Union Pacific R. Co. (12 I. C. C. R. 85), 86, 206, 539, 559. Re Allowances to Elevators by Union Pacific R. Co. (13 I. C. C. R. 498), 206, 559. Re Allowances to Elevators by Union Pacific R. Co. (14 I. C. C. R. 315), 86, 206, 559. Re Application of Atchison, T. & S. F. Ry. Co. (7 I. C. C. R. 593), 511. Re Application of F. W. Clark (3 I. C. C. R. 649, 2 I. C. R. 797), 541. Re Application of Freemont, E. & M. V. R. Co., et al. (6 I. C. C. R. 293),511. Re Application of Rome, W. & 0. R. Co. (6 I. C. C. R. 328), 511. Table of Cases Cited. 57 (Eeferences are to Sections.) Ke Atlanta & West Point K. Co. (3 I. C. C. R. 19, 46, 2 I. C. E. 461), 61, 94, 511, 513. Re Belknap (96 Fed. 614), 531. Re Carriage of Persons Free (5 I. C. C. R. 69, 3 I. C. R. 717), 505, 508, 571. Re Class and Commodity Rates St. Louis to Texas (11 I. C. C. R. 238), 51, 55, 56, 58, 59, 504, 600. Re Classification of Atlanta & West Point R. Co. (3 I. C. C. R. 19, 2 I. C. R. 461), 61, 94, 511, 513. Re Charge to Grand Jury (66 Fed. 146), 505, 508, 509, 571. Re Charge to Grand Jury (151 Fed. 834), 600. Re Charges for Transportation and Refrigeration of Fruit (10 I. C. C. R. 360),513. Re Charges for Transportation and Refrigeration of Fruit (11 I. C. C. R. 129), 50, 500, 513. Re Chicago, St. P. & K. C. Ry. Co. (2 I. C. C. R. 231, 2 I. C. R. 137), 504. Re Complaint of Illinois Central R. Co. (12 I. C. C. R. 7), 505, 571. Re Contracts of Express Companies (16 I. C. C. R. 246), 505, 513. Re Contracts for Free Transportation (16 I. C. C. R. 246), 505, 513. Re Corning (51 Fed. 205, 1 Fed. Anti-Trust Dec. 33), 601. Re Debs (158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900, 1 Fed. Anti-Trust Dee. 565), 600. Re Differential Freight Rates To and From North Atlantic Ports (11 I. C. C. R. 13), 509. Re Divisions of Joint Rates and Other Allowances to Terminal Roads (10 I. C. C. R. 385), 508. Re Exchange of Free Transportation (12 I. C. C. R. 39), 500, 505. Re Export and Domestic Rates on Grain (8 I. C. C. R. 214), 513. Re Export Rates from Points East and West of Mississippi River (8 1. C. C. R. 185), 513. Re Express Companies (1 I. C. C. R. 349, 1 I. C. R. 677), 500, 502. Re Filing Copies of Joint Tariffs by Traffic Combinations (1 I. C. R. 76), 513. 58 Tabf.e op Cases Cited. (Refercnoos are to Sections.) Re Filing of Joint Tariffs (1 I. C. C. R. 657, 2 I. C. R. 9), 513. Re Form and Contents of Rate Schedules (6 1. C. C. R. 267, 4 I. C. R. 698), 513, 516. Re Free Transportation of Newspaper Employees (12 I. C. C. R. 15), 571. Re Freight Rates Between Memphis and Points in Arkansas (11 I. C. C. R. 180), 509, 537. Re Grand Jury (62 Fed. 840, 1 Fed. Anti-Trust Dec. 301), 600. Re Greene (52 Fed. 104, 1 Fed. Anti-Trust Dec. 54), 601. Re Hale (139 Fed. 496, 2 Fed. Anti-Trust Dec. 804), 600. Re Ilohorst (150 U. S. 653, 37 L. Ed. 1211, 14 Sup. Ct. 221), 271. Re Himtingdon (68 Fed. 881), 509. Re Indian Supplies (1 I. C. R. 22), 571. Re Investigation of Acts of Grand Trunk Ry. of Canada (3 I. C. C. R. 89, 2 I. C. R. 496), 5, 500, 513, 537. Re Interstate Commerce Commission, Application for Order Against Brimson, et al. (53 Fed. 476), 534, 535. Re Jurisdiction Over Water Carriers (15 I. C. C. R. 205), 7, 500. Re Louisville & N. R. Co. (1 I. C. C. R. 84, 1 I. C. R. 287), 60, 94. Re Louisville Underwriters (134 U. S. 488, 33 L. Ed. 991, 10 Sup. Ct. 587), 271. Re Party Rate Tickets (12 I. C. C. R. 95), 508, 573. Re Passenger Tariffs (2 I. C. C. R. 649, 2 I. C. R. 445), 508, 513, 519, 573. Re Passenger Tariffs and Rate Wars (2 I. C. C. R. 513, 2 I. C. R. 340), 513, 519. Re Passes to Clergymen (15 I. C. C. R. 45), 505. Re Peasley (44 Fed. 271), 529, 535. Re Petition of Cincinnati, H. & D. R. Co., for Relief Under Sec- tion Four (6 I. C. C. R. 323), 511. Re Petition of Louisville & N. R. Co. and Southern Ry. & S. S. Co. (1 I. C. C. R. 31, 57. 1 I. C. R. 278), 81, 511. Re Petition of Order of Railway Conductors (1 I. C. C. R. 8, 1 I. C. R. 18), 537. Re Petition of Produce Exchange (2 I. C. C. R. 588, 2 I. C. R. 412), 162, 537, 559. Re Pooling Freights (115 Fed. 588), 512, 529. Table of Cases Cited. 59 (Eeferences are to Sections.) Re Powers and Procedure of the Commission (1 I. C. C. R. 223, 1 I. C. R. 408), 537. Re Proposed Advance in Freight Rates (9 I. C. C. R. 382), 51, 52, 57, 58, 504. Re Publication of Joint Tariffs (1 I. C. R. 598), 513. Re Railroad-Telegraph Contracts (12 I. C. C. R. 10),- 505, 571. Re Rate Sheets (1 I. C. R. 316), 513. Re Rates and Practices of the IMobile & Ohio R. Co. (9 I. C. C. R. 373), 508. Re Rates on Corn and Corn Products (11 I. C. C. R. 212, 220), 509. Re Relative Tank and Barrel Rates (2 I. C. C. R. 365, 2 I. C. R. 245), 537. Re Released Rates (13 I. C. C. R. 550), 201, 504, 513, 569. Re Religious Teachers (1 I. C. R. 21), 509. Re Right of Railroad Companies to Exchange Free Transporta- tion with Local Transfer Companies (12 I. C. C. R. 39), 502, 571. Re Southern Pacific Co. (155 Fed. 1001), 406. Re Southern Pacific Co. (1 I. C. R. 16), 511. Re Southern Ry. & S. S. Asso. (Re Petition of Louisville & N. R. Co.), (1 I. C. C. R. 31, 1 I. C. R. 278), 504, 511. Re Tariffs and Classification of Atlanta & "West Point R. Co. (3 I. C. C. R. 19, 24, 2 L C. R. 461), 61, 94, 511, 513. Re Tariffs of Transcontinental Lines (2 I. C. C. R. 324, 2 I. C. R. 203), 62, 509, 513. Re Tariffs on Export and Import Traffic (10 I. C. C. R. 55), 513. Re Terrell (51 Fed. 213, 1 Fed. Anti-Trust Dec. 46), 601. Re Through Routes and Through Rates (32 I. C. C. R. 163), 503, 513, 519. Re Transportation of Immigrants (10 I. C. C. R. 13), 512. Re Transportation of Newspaper Emploj'ees (12 I. C. C. R. 15), 505. Re Transportation of Salt (10 I. C. C. R. 148), 508. Re Underbilling (1 I. C. C. R. 633, 1 I. C. R. 813), 530. Re Unlawful Charges for Transportation of Coal by Louisville & N. R. Co. (5 L C. C. R. 466, 4 L C. R. 157), 508. Re Unlawful Rates in the Transportation of Cotton (8 I. C. C. R. 121), 84. 60 Taiu.m of Cases Cited. (References are to Seetions.) Re When a Cause of Action Accrues (15 1. C. C. R. 201), 159, 547. Re Winn (213 U. S. 458, 53 L. Ed. , 29 Sup. Ct. 515), 200. Rea V. Mobile & 0. R. Co. (7 I. C. C. R. 43), 60, 513, 528. Reagan v. Farmers' Loan & Trust Co. (154 U. S. 362, 38 L. Ed. 1014, 4 I. C. R. 560, 14 Sup. Ct. 1047), 3, 206. Red Rock Fuel Co. v. Baltimore & 0. R. Co. (11 I. C. C. R. 438), 507. Red Wing Linseed Co. v. Chicago, M. & St. P. Ry. Co. (15 I. C. C. R. 47), 206. Reid V. Colorado (187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92), 310. Rend v. Chicago & N. W. R. Co. (2 I. C. C. R. 540, 1 I. C. R. 793, 2 L C. R. 313), 94, 508. Reynolds v. Southern Ex. Co. (13 I. C. C. R. 536), 509. Reynolds v. Western N. Y. & P. R. Co. (1 I. C. C. R. 393, 1 I. C. R. 685), 504. Rheinlander Paper Co. v. Northern Pac. R. Co. (13 I. C. C. R. 633), 509. Rice V. Atchison, T. & S. F. R. Co. (4 I. C. C. R. 228. 3 I. C. R. 263), 511. Rice V. Cincinnati, W. & B. R. Co. (5 I. C. C. R. 193, 3 I. C. R. 841), 508, 509. Rice V. Cincinnati, W. & B. R. Co. (3 I. C. C. R. 186, 2 I. C. R. 584), 534. Rice V. Standard Oil Co. (134 Fed. 464, 2 Fed. Anti-Trust Dec. 633), 606. Rice V. Western N. Y. & P. R. Co. (1 I. C. C. R. 503, 1 I. C. R. 354, 376, 443, 722), 508. Rice V. Western N. Y. & P. R. Co. (2 I. C. C. R. 389, 2 I. C. R. 298), 504, 508, 509, 559. ■ Rice V. Western N. Y. & P. R. Co. (4 I. C. C. R. 131, 3 I. C. R. 162), 508, 509. Rice V. Western N. Y. & P. R. Co. (6 I. C. C. R. 455), 509, 528, 537, 559. Richmond & A. R. Co. v. Patterson (169 U. S. 311, 42 L. Ed. 759, 18 Sup. Ct. 335), 313. Richmond Elevator Co. v. Pere Marquette R. Co. (10 I. C. C. R. 629), 87, 528. Table of Cases Cited. 61 (References are to Sections.) Richmond, F. & P. R. Co. v. Richmond (96 U. S. 521, 2-4 L. Ed. 734), 302. Riddle, Dean & Co. v. Baltimore & 0. R. Co. (1 I. C. C. R. 372, 1 I. C. R. 701), 537. Riddle, Dean & Co. v. New York, L. E. & AV. R. Co. (1 I. C. C. R. 59-4, 1 I. C. R. 787), 528, 545. Riddle, Dean & Co. v. Pittsburg & L. E. R. Co. (1 I. C. C. R. 490, 1 I. C. R. 773), 162, 537, 559. Riverside Mills v. Atlantic C. L. R. Co. (168 Fed. 987), 201, 569. Riverside Mills v. Southern Ry. Co. (12 I. C. C. R. 388), 504. Robinson v. Suburban Brick Co. (127 Fed. 804, 62 C. C. A. 484, 2 Fed. Anti-Trust Dec. 312), 600. Rock Hill Buggy Co. v. Southern Ry. Co. (11 I. C. C. R. 229), 511. Rogers & Co. v. Philadelphia & R. R. Co. (12 I. C. C. R. 308), 528. Roswell Commercial Club v. Atchison, T. & S. F. Ry. Co. (12 I. C. C. R. 339), 504. Roth v. Texas & Pac. Ry. Co. (9 I. C. C. R. 602), 537. Royal Brewing Co. v. Adams Express Co. (15 I. C. C. R. 255), 509. Royal C. & C. Co. v. Southern Ry. Co. (13 I. C. C. R. 440), 206, 509. Rubber Tire Wheel Co. v. Milwaukee Rubber Co. (142 Fed. 531, 2 Fed. Anti-Trust Dec. 855), 600. Rubber Tire AVheel Co. v. Milwaukee Rubber Co. (154 Fed. 358, 83 C. C. A. 336), 600. Ruttle V. Pere Marquette R; Co. (13 I. C. C. R. 179), 509. S. San Bernardino Board of Trade v. Atchison, T. & S. F. R. Co. (4 I. C. C. R. 104, 3 I. C. R. 138), 511, 513. St. Louis & S. F. R. Co. v. Gill (156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. 484), 52, 206. St. Louis & S. F. R. Co. v. United States (169 Fed. 69, C. C. A. ), 401, 590. St. Louis & S. W. Ry. Co. v. Carsen (34 S. W. (Texas) 145), 153. St. Louis Drayage Co. v. Louisville & N. R. Co. (65 Fed. 39), 510. 62 Table op Cases Cited. (References are to Sections.) St. Louis Hay & Grain Co. v. Chicago, B. & Q. R. Co. (11 I. C. C. R. 82), 50, 500. St. Louis Hay & Grain Co. v. 111. Cent. R. Co. (11 I. C. C. R. 486), 580. St. Louis Hay & Grain Co. v. Mobile & 0. R. Co. (11 I. C. C. R. 90), 84, 508. St. Louis Hay & Grain Co. v. Southern Ry. Co. (149 Fed. 609), 508, 509, 528, 538. San Diego Land & Town Co. v. Jasper (189 U. S. 439, 47 L. Ed. 892, 23 Sup. Ct. 571), 3. San Diego Land & Toa^ti Co. v. National City (174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804), 53, 206. Savannah Bureau of Freight & Transportation v. Charleston & S. R. Co. (7LC. C. R. 458), 511. Savannah Bureau of Freight & Transportation v. Charleston & S. R. Co. (7 L C. C. R. 601), 504. Savannah Bureau of Freight & Transportation v. Louisville & N. R. Co. (8L C. C. R. 377), 509. Savannah, F. & W. R. Co. v. Florida Fruit Exchange (167 U. S. 512, 42 L. Ed. 257, 17 Sup. Ct. 998), 500. Savery v. New York C. & H. R. R. Co. (2 I. C. C. R. 338, 1 I. C. R. 695, 2 L C. R. 210), 508. Sa^^yer v. Davis (136 Mass. 239, 49 Am. Rep. 27), 206. Schlemmer v. Buffalo, R. & P. R. Co. (205 U. S. 1, 51 L. Ed. 681, 27 Sup. Ct. 407), 403. Schumacher Milling Co. v. Chicago, R. I. & P. Ry. Co. (6 I. C. C. R. 61, 4 I. C. R. 373), 52, 504, 537. Schutte V. Weir (111 N. Y. Sup. 240, 59 Misc. Rep. 438), 569. Schwager & Nettleton v. Great Nor. Ry. Co. (12 I. C. C. R. 521), 513. Scofield V. Lake Shore & M. S. R. Co. (2 I. C. C. R. 90. 2 I. C. R. 67), 82, 508, 509. Scofield V. Lake Shore & M. S. R. Co. (43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846), 251, 252. Seaboard A. L. R. Co. v. Florida (203 U. S. 261, 51 L. Ed. 175, 27 Sup. Ct. 109), 206. Seaboard A. L. R. Co. v. Seegers (73 S. C. 71, 52 S. E. 797), 314. Seaboard A. L. R. Co. v. Seegers (207 U. S. 73, 52 L. Ed. 108, 28 Sup. Ct. 28), 314. Table of Cases Cited. 63 (Eeferences are to Sections.) Shawnee Compress Co. v. Anderson (209 U. S. 423, 52 L. Ed. 865, 28 Sup. Ct. 572), 600. Sheldon v. Wabash R. Co. (105 Fed. 785), 200. Shiel & Co. V. III. Cent. R. Co. (12 I. C. C. R. 210), 513, 528. Shinlde etc. v. Louisville & N. R. Co. (62 Fed. 690), 545. Shippers and Receivers' Bureau of Newark v. New York, 0. & W. Ry. Co. (15 I. C. C. R. 264), 504. Silverman v. Weir (114 N. Y. Sup. 6), 569. Sinking Fund Cases (U. P. R. Co. v. U. S.) (99 U. S. 9 Otto. 700, 25 L. Ed. 496), 3. Slater v. Northern Pac. R. Co. (2 I. C. C. R. 359, 2 I. C. R. 243), 505, 508, 529, 571. Smeltzer v. St. Louis & S. F. R. Co. (158 Fed. 649), 201, 569. Smith V. Alabama (124 U. S. 465, 31 L. Ed. 508, 8 Sup. Ct. 564, 1 L C. R. 804), 312. Smith V. Northern Pae. R. Co. (1 I. C. C. R. 208, 1 I. C. R. 611), 508. Smyth V. Ames (169 U. S. 446, 42 L. Ed. 819, 18 Sup. Ct. 418), 51, 53, 65, 67, 206. Society of American Florists v. United States Express Co. (12 I. C. C. R. 120), 504. Southern Ex. Co. v. Memphis & L. R. R. Co. (8 Fed. 799, 2 Mc- Cray 570), 251, 253. Southern Ex. Co. v. St. Louis, I. M. & S. R. Co. (10 Fed. 210, 3 McCray 147), 251, 253. Southern Gro. Co. v. Georgia N. R. Co. (12 'I. C. C. R. 229), 509. Southern Ind. Ex. Co. v. United States Ex. Co. (88 Fed. 659, 1 Fed. Anti-Trust Dec. 862), 510, 606. Southern Ind. Ex. Co. v. United States Ex. Co. (92 Fed. 1022, 35 C. C. A. 172, 1 Fed. Anti-Trust Dec. 992), 606. Southern Pac. Co. v. Arnett (126 Fed. 75, 61 C. C. A. 131), 590. Southern Pae. Co. v. Colorado Fuel & Iron Co. (101 Fed. 779, 42 C. C. A. 12), 504, 509, 513. Southern Pac. Co. v. Crenshaw (5 Ga. App. 675, 63 S. E. 865), 201, 569. Southern Pac. Co. v. Int. Com. Com. (200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330), 88, 503, 512, 513, 541, 545. Southern Pac. Co. and Oregon & Cal, R. Co. v. Int. Com. Com. ( Fed. ), 206. 64 Table of Cases Cited. (References are to Sections.) Southern Pac. Ter. Co. v. Int. Com. Com. (166 Fed. 134), 206, 500, 509, 539, 556, 557, 584. Southern Pine Lumber Co. v. Southern Ry. Co. (14 I. C. C R. 195), 157, 163, 528, 537, 539. Southern Ry. Co. v. Frank (5 Ga. App. 574, 63 S. E. 656), 201. Southern Ry. Co. v. Melton ( Ga. , 65 S. E. 665), 306. Southern Ry. Co. v. Ragsdale (319 Ga. 773, 47 S. E. 179), 313. Southern Ry. Co. v. St. Louis Hay & Grain Co. (153 Fed. 728, 82 C. C. A. 614), 508, 509, 528, 538. Southern Ry. Co. v. St. Louis Hay & Grain Co. (214 U. S. 297, 53 L. Ed. , Sup. Ct. ), 50, 164, 205, 508, 509. 538. Southern Ry. Co. v. Tift (148 Fed. 1021), 3, 54, 55, 59, 154, 206, 504, 512, 545, 572, 574, 600. Southern Ry. Co. v. Tift (206, U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709), 3, 54, 55, 59, 154, 163, 206, 253, 504, 512, 528, 537, 545, 572. Spartanburg Bd. of Trade v. R. & D. R. Co. (2 I. C. C. R. 304, 2 I. C. R. 193), 81, 511. Speigle Co. (Geo. M.) v. Chesapeake & 0. R. Co. (11 I. C. C. R. 367), 511. Spillers & Co. v. Louisville & N. R. Co. (8 I. C. C. R. 364), 519. Spratlin v. St. Louis & S. W. Ry. Co. (76 Ark. 82, 88 S. W. 836), 153. i^preckles Sugar Refining Co. v. McLain (192 U. S. 397, 48 L. Ed. 496. 24 Sup. Ct. 376), 407. Sprigg V. Baltimore & 0. R. Co. (8 I. C. C. R. 443). 573, 600. Spring Valley "Water Works v. Schottler (110 U. S. 347, 28 L. Ed. 173, 4 Sup. Ct. 48), 206. Squire v. Mich. Cent. R. Co. (4 I. C. C. R. 611, 3 I. C. R. 515), 509. Standard Lime & Stone Co. v. Cumberland V. R. Co. (15 I. C. C. R. 620), 509, 574. iStandard Oil Co. v. United States (164 Fed. 376, C. C. A. ), 500. 519, 522, 577, 578. Star Grain & Lumber Co. v. Atchison, T. & S. F. Ry. Co. (14 I. C. C. R. 364), 165, 504, 541. State of Iowa v. Chicago. iM. & St. P. R. Co. (4 I. C. R. 425, 33 Fed. 391), 500, 509. State ex rel. Attorney-General v. Columbus Gaslight & Coke Co. (34 Ohio St. 572, 32 Am. Rep. 390), 206. Table of Cases Cited. 65 (Eeferences are to Sections.) Stedman v. Chicago & N. W. Ky. Co. (13 I. C. C. R. 167), 503, 528. Stickney v. Int. Com. Com. (164 Fed. 638), 206, 513, 539, 555. Stone V. Detroit etc. R. Co. (3 I. C. C. R. 613, 3 I. C. R. 60), 511. Stone V. Farmers' Loan & Trust Co. (116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334, 1191), 3, 206. Stone V. 111. Cent. R. Co. (116 U. S. 347, 29 L. Ed. 650, 6 Sup. Ct. 348, 1191), 206. Stone V. New Orleans & N. E. R. Co. (116 U. S. 352, 29 L. Ed. 651, 6 Sup. Ct. 349), 206. Stone V. Wisconsin (94 U. S. 181, 24 L. Ed. 102), 206. Stowe-Fuller Co. v. Penn. Co. (12 I. C. C. R. 215), 53, 83. Strait v.^ National Harrow Co. (51 Fed. 819, 1 Fed. Anti-Trust Dec' 52), 600. Strough V. New York C. & H. R. R. Co. (87 N. Y. Sup. 30, 92 App. Div. 584), 528. Strough V. New York C. & H. R. R. Co. (181 N. Y. 533, 73 N. E. 1133), 528. Suffern, Hunt & Co. v. Ind., D. & W. Ry. Co. (7 I. C. C. R. 255), 90, 513. Sunderland Bros. v. Chicago, R. I. & P. R. Co. (158 Fed. 877), 572. Swift V. Philadelphia & R. R. Co. (58 Fed. 858), 200, 504, 528. Swift V. Philadelphia & R. R. Co. (64 Fed. 59), 528. Swift V. United States (196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276, 2 Fed. Anti-Trust Dec. 641), 580, 585, 600. Sylvester v. Penn. R. Co. (14 I. C. C. R. 573), 504, 528. T. Taylor, The Moses (71 U. S. 4 Wall. 429, 18 L. Ed. 397), 200. Tecumseh Celery Co. v. Cincinnati, J. & M. Ry. Co. (5 I. C. C. R. 663, 4 1. C. R. 318), 537. Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co. (204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350), 1, 3, 4, 8, 153, 154, 157, 200, 205, 252, 253, 254, 270, 513, 528, 546, 572. Texas & Pac. Ry. Co. v. Cisco Oil ]\Iill (204 U. S. 449, 51 L. Ed. 562, 27 Sup. Ct. 358), 513. Texas & Pac. Ry. Co. v. Int. Com. Com. (162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 I. C. R. 405), 4, 52, 55, 67, 90, 205, 504, 508, 509, 513, 533, 534, 538, 539, 545. 66 Table op Cases Cited. (References are to Sections.) Texas & Pac. R. Co. v. Mugg (202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628), 90, 153, 513, 519. Texas Cement Plaster Co. v. St. Louis & S. F. R. Co. (12 I. C. C. R. 68), 509, 528. Thomas v. Cincinnati, N. 0. & T. P. Ry. Co. (62 Fed. 803, 1 Fed. Anti-Trust Dec. 266), 600. Thompson v. Penn. R. Co. (10 I. C. C. R. 640), 87. Tliompson Lumber Co. v. 111. Cent. R. Co. (13 I. C. C. R. 657), 67, 157, 504. Thompson Lumber Co. v. 111. Cent. R. Co. (14 I. C. C. R. 566), 559. Thomson v. Union Castle Mail S. S. Co. (149 Fed. 933), 600. Thomson v. Union Castle Mail S. S. Co. (166 Fed. 251, C. C. A. ), 600. Thurber v. New York C. & II. R. R. Co. (3 I. C. C. R. 473, 2 I. C. R. 742), 63, 82, 504, 509. Tift V. Southern Ry. Co. (10 I. C. C. R. 548), 53, 54, 55, 56, 58, 59, 67, 154, 206, 504, 512, 537, 539, 600. Tift V. Southern Ry. Co. (123 Fed. 789), 1, 3, 4, 138, 200, 206, 252, 253, 255, 504, 572, 574. Tift V. Southern Ry. Co. (138 Fed. 753, 2 Fed. Anti-Trust Dec. 733), 3, 4, 55, 59, 154, 206, 252, 402, 504, 512, 537, 545, 572, 574, 600. Tift V. Southern Ry. Co. (159 Fed. 555), 3, 154, 206, 504, 528. Tileston Milling Co. v. Northern Pac. R. Co. (8 I. C. C. R. 346), 67, 504, 511. Tilley v. Railroad Co. (5 Fed. 641, 4 Woods 427), 206. Toledo etc. R. Co. v. Penn. Co. (54 Fed. 730, 19 L. R. A. 387, 5 L C. R. 545, 22 U. S. App. 561), 200, 252, 271, 510, 526, 528, 529. Tomlin-Harris Mach. Co. v. Louisville & N. R. Co. (12 I. C. C. R. 133), 509. Topeka Banana Dealers' Asso v. St. Louis & S. F. R. Co. (13 L C. C. R. 620), 511. Tozer v. United States (52 Fed. 917), 509, 522, 529. Traer v. Chicago & A. R. Co. (13 I. C. C. R. 451), 206, 509. Traffic Bureau, Merchants' Exchange of St. Louis v. Chicago, B. 6 Q. R. Co. (14 L C. C. R. 317), 86, 206. Traffic Bureau, Merchants' Exchange of St. Louis v. Chicago, B. &Q. R. Co. (14 1. C. C. R. 551), 550. Table of Cases Cited. 67 (Eeferences are to Sections.) Traffic Bureau v. Missouri Pac. R. Co. (13 I. C. C. R. 11), 206. 509. Trammell, Railroad Comrs. of Ga. v. Clyde S. S. Co. (5 I. C. C. R. 324, 4 I. C. R. 120), 76, 81, 500, 508, 509, 511, 537. Ulrick V. Lake Shore etc. R. Co. (9 I. C. C. R. 495), 511. Union Pac. R. Co., Northern Pac. Ry. Co. Great Nor. R. Co. v. Int. Com. Com. (Lumber Cases) ( Fed. ), 206. Union Pac. R. Co. v. Oregon & "Washington L. M. Asso. (165 Fed. 13), 200, 254, 572. Union Pac. R. Co. v. United States (Sinking Fund Cases), (99 U. S. 9 Otto. 700, 25 L. Ed. 496), 3. Union Pac. R. Co. v. United States (117 U. S. 355, 29 L. Ed. 920, 6 Sup. Ct. 772), 508, 534. Union Sewer Pipe Co. v. Connelly" (99 Fed. 354, 2 Fed. Anti- Trust Dec. 1), 600. United States v. Addyston Pipe & Steel Co. (78 Fed. 712, 1 Fed. Anti-Trust Dec. 631), 603. United States v. Addyston Pipe & Steel Co. (85 Fed. 271, 29 C. C. A. 141, 46 L. R. A. 122, 1 Fed. Anti-Trust Dec. 772), 600, 603, 605. United States v. Agler (62 Fed. 824, 1 Fed. Anti-Trust Dec. 294), 603. United States v. American Tobacco Co. (164 Fed. 700), 600. United States v. Armour (142 Fed. 808, 2 Fed. Anti-Trust Dec. 951), 600. United States v. Atchison, T. & S. F. Ry. Co. (142 Fed. 176, 2 Fed. Anti-Trust Dec. 831), 580, 603. Tmited States v. Atchison, T. & S. F. Ry. Co. (163 Fed. Ill), 522. United States v. Atchison, T. & S. F. R. Co. (166 Fed. 160), 592. United States v. Atlantic C. L. R. Co. (153 Fed. 918), 403. L^nited States v. Baltimore & 0. R. Co. (153 Fed. 997), 522, 529. United States v. Baltimore & 0. R. Co. (154 Fed. 108), 509, 574. United States v. Baltimore & 0. R. Co. (165 Fed. 113, C. C. A. ),87, 509, 510, 574. 68 Taulk of Cases Cited. (Reforeneos are to SectioTis.) United States ex rel. Pilcairn Coal Co. v. Baltimore & 0. R. Co. (165 Fed. 113), 574. United States v. Baltimore & 0. S. AA'. R. Co. (159 Fed. 33, 86 C. C. A. 223),4()1, 5!)2. United States v. Boston & A. R. Co. (15 Fed. 209), 590, 592. United States v. Bunch (166 Fed. 736), 522. United States v. Camden Iron AVorks (150 Fed. 214), 522. United States v. Cassidy (67 Fed. 6i)8, 1 Fed. Anti-Trust Dec. 449), 600. United States v. Chesapeake & Ohio Fuel Co. (105 Fed. 93, 2 Fed. Anti-Trust Dec. 34), 600. United States v. Chicago & Alton R. Co. (148 Fed. 646), 513. United States v. Chicago & N. AV. Ry. Co. (127 Fed. 785, 62 C. C. A. 465), 508. United States v. Chicago etc. Ry. Co. (163 Fed. 114), 505, 571, 580. United States v. Chicago, K. & S. R. Co. (81 Fed. 783), 500, 563. United States v. Chicago, St. P., AI. & 0. R. Co. (151 Fed. 84), 513, 522, 577. United States v. Coal Dealers' Asso. (85 Fed. 252, 1 Fed. Anti- Trust Dee. 749), 600, 603. United States v. Colorado & N. AV. R. Co. (157 Fed. 321, 85 C. C. A. 27), 7, 500, 563. United States v. Debs (64 Fed. 724, 1 Fed. Anti-Trust Dec. 322), 600. United States v. DeCoursey (82 Fed. 302), 513, 529. United States v. Delaware & Hudson Co. (164 Fed. 215), 506. United States v. Delaware & Hudson Co. (213 U. S. 366, 53 L. Ed. ), 29 Sup. Ct. 527), 3, 93, 506. United States v. Delaware, L. & AV. R. Co. (40 Fed. 101), 508, 509. United States v. Delaware, L. & AA'. R. Co. (152 Fed. 269), 500, 522, 577. United States v. Eagan (47 Fed. 112), 508. United States v. East Tenn., A^a. & Ga. Ry. Co. (13 Fed. 642), 590. United States v. Elliott (62 Fed. 801, 1 Fed. Anti-Trust Dec. 262), 600. United States v. Elliott (64 Fed. 27, 1 Fed. Anti-Trust Dec. 311), 600, 603, 604. Table of Cases Cited. 69 (Eeferences are to Sections.) United States v. Fowkes (53 Fed. 13, 3 C. C. A. 394), 529. United States v. Geddes (131 Fed. 452, 65 C. C. A. 320), 500. United States v. Great Nor. R. Co. (151 Fed. 84), 577. United States v. Great Nor. R. Co. (157 Fed. 288), 3, 522, 577. United States v. Greenhnt (50 Fed. 469, 1 Fed. Anti-Trust Dec. 30), 601. United States v. Hanley (71 Fed. 672), 508, 529, 531, 532. United States v. Harris (85 Fed. 533), 590. United States v. Harris (177 U. S. 305, 44 L. Ed. 780, 20 Sup. Ct. 609), 590. United States v. Hopkins (82 Fed. 529, 1 Fed. Anti-Trust Dec. 725), 600. United States v. Howell (56 Fed. 21), 529, 531. United States v. Jellico ^Mountain Coal & Coke Co. (43 Fed. 898, 1 Fed. Anti-Trust Dec. 1), 603. United States v. Jellico Mountain Coal & Coke Co. (46 Fed. 432, 12 L. R. A. 753, 1 Fed. Anti-Trust Dec. 9), 600. United States v. Joint Traffic Asso. (76 Fed. 895, 1 Fed. Anti- Trust Dec. 615), 512, 534, 603. United States v. Joint Traffic Asso. (89 Fed. 1020, 32 C. C. A. 491, 45 U. S. App. 726, 1 Fed. Anti-Trust Dec. 869), 512, 534, 603. United States v. Joint Traffic Asso. (171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259, 1 Fed. Anti-Trust Dec. 869), 55, 402, 512, 603. United States v. Ju Toy (]98 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040), 3. United States v. Knight & Co. (60 Fed. 306, 1 Fed. Anti-Trust Dec. 250), 600. United States v. Knight & Co. (60 Fed. 934, 9 C. C. A. 297, 24 L. R. A. 428, 1 Fed. Anti-Trust Dec. 258), 600. United States v. Knight & Co. (156 U. S. 1, 11, 39 L. Ed. 325, 15 Sup. Ct. 249, 1 Fed. Anti-Trust Dec. 379, 387), 600. United States v. Lake Shore & M. S. Ry. Co. (197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538), 563, 567, 570, 574. United States v. Lehigh Valley R. Co. (115 Fed. 373), 500. United States v. Louisville & N. R. Co. (18 Fed. 480), 590. T'nited States v. Louisville & N. R. Co. (157 Fed. 979), 590. United States v. MacAndrews & Forbes Co. (149 Fed. 823, 836), 607. 70 Table op Cases Cited. (References are to Sections.) United States v. Mathews (68 Fed. 880), 508. United States v. Mellen (53 Fed. 229), 511, 529. United States v. Michigan Cent. R. Co. (43 Fed. 26), 522, 529. United States v. Michigan Cent. R. C^o. (122 Fed. 544), 4, 580, 583. United States v. Malwaukee Rfgr. Transit Co. (142 Fed. 247), 521. United States v. Milwaukee Rfgr. Transit Co. (145 Fed. 1007), 580. United States v. I\Tissoiiri Pac. Ry. Co. (65 Fed. 903, 5 I. C. R. 106), 534, 580. United States v. Mooney (116 U. S. ]04, 29 L. Ed. 550, 6 Sup. Ct. 304), 271. United States v. Morsman (42 Fed. 448), 500. United States v. Moseley (187 U. S. 322, 47 L. Ed. 198, 23 Sup. Ct. 90), 561. United States v. Nelson (52 Fed. 646, 1 Fed. Anti-Trust Dec. 77), 601. United States v. New York C. & II. R. R. Co. (140 Fed. 298), 521. United States v. New York C. & II. R. R. Co. (153 Fed. 630), 500, 519, 522, 577. United States v. New York C. & H. R. R. Co. (157 Fed. 293), 522. United States v. New York C. & H. R. R. Co. (164 Fed. 324), 522. United States v. New York C. & H. R. R. Co. (168 Fed. 699, CCA. ), 401, 592. United States v. New York C & H. R. R. Co. (212 U. S. 481, 53 L. Ed. , 29 Sup. Ct. 304), 500. United States v. N. Y. C & H. R. R. Co. (212 U. S. 509, 53 L. Ed. , 29 Sup. ), 153. United States v. Norfolk & Western Ry. Co. (109 Fed. 831), 574. United States v. Norfolk & Western Ry. Co. (114 Fed. 682), 574. United States v. Norfolk & AVestern Ry. Co. (138 Fed. 849), 574. United States v. Norfolk & Western Ry. Co. (143 Fed. 266, 74 C C A. 404), 509,574. Table of Cases Cited. 71 (Eeferences are to Sections.) United States v. Northern Securities Co. (120 Fed. 721, 2 Fed. Anti-Trust Dee. 215), 600. United States v. Oregon R. & Nav. Co. (159 Fed. 975), 509. United States v. Oregon R. & Nav. Co. (163 Fed. 640), 590. United States v. Oregon R. & Nav. Co. (163 Fed. 642), 401. United States v. Oregon S. L. R. Co. (160 Fed. 526), 401, 590, 592. United States v. Patterson (55 Fed. 605, 640, 641, 1 Fed. Anti- Trust Dee. 133, 176, 177), 601. United States v. Patterson (59 Fed. 280, 1 Fed. Anti-Trust Dec. 244), 601. United States v. Pomeroy (152 Fed. 279), 522. United States v. St. Louis & S. F. Ry. Co. (107 Fed. 870), 592. United States v. Seaboard Ry. Co. (82 Fed. 563), 500, 563. United States v. ex rel. Int. Com. Com. v. Seaboard Ry. Co. (85 Fed. 955), 563. United States v. Sioux City Stock Yards Co. (162 Fed. 556), 401, 500, 502, 590. United States v. Southern Pac. Co. (157 Fed. 459), 590. United States v. Southern Pac. Co. (162 Fed. 412), 590. United States v. Standard Oil Co. (148 Fed. 719), 522, 577, 578. United States v. Standard Oil Co. (152 Fed. 290), 271, 604. United States v. Standard Oil Co. (155 Fed. 305), 500, 519, 522, 577. United States v. Stearns Salt & Lumber Co. (165 Fed. 735), 522. United States v. Swift & Co. (122 Fed. 529, 2 Fed. Anti-Trust Dec. 237), 585. United States v. Tozer (37 Fed. 635, 2 L. R. A. 444), 509, 529. United States v. Tozer (39 Fed. 369), 509, 529. United States v. Tozer (39 Fed. 904), 509. United States v. Trans-Missouri Freight Asso. (53 Fed. 440, 1 Fed. Anti-Trust Dec. 80), 512, 600. United States v. Trans-Missouri Freight Asso. (58 Fed. 58, 7 C. C. A. 15, 97, 24 L. R. A. 73, 1 Fed. Anti-Trust Dec. 186), 512. United States v. Trans-Missouri Freight Asso. (166 U. S. 290, 41 L. Ed. 1007, 17 Sup. Ct. 540, 1 Fed. Anti-Trust Dec. 648), 55,402, 512, 600. 72 Table of Cases Cited. (EeforoTieos are to Scftions.) United States v. Union Pac. R. Co. (1G9 Fed. 65, C. C. A. ), 401, 590. United States v. Union Pac. R. Co. (160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319), 250. United States v. Union Stock Yards of Omaha (161 Fed. 919), 500. United States v. Vacuum Oil Co. (153 Fed. 598), 513, 522. United States v. Vacuum Oil Co. (158 Fed." 536), 519, 522. United States v. Virginia-Carolina Chemical Co. (163 Fed. 66), 604. United States v. Wells Fargo Express Co. (161 Fed. 606), 5, 500, 505, 508, 509, 522, 571. United States v. West Va. N. R. Co. (125 Fed. 252), 574. United States v. Wood (145 Fed. 405), 7, 500, 513, 522. United States v. AVorkingman's Amalg. Council (54 Fed. 994, 26 L. R. A. 158, 1 Fed. Anti-Trust Dec. 110), 600, 603. United States Consolidated Seeded Raisin Co. v. Griffin (126 Fed. 364, 61 C. C. A. 334, 2 Fed. Anti-Trust Dec. 288), 600. United States Tobacco Co. v. American Tobacco Co. (163 Fed. 701), 600. V. Van Patten v. Chicago, M. & St. P. R. Co. (74 Fed. 981), 200, 271, 528. Van Patten v. Chicago, M. & St. P. R. Co. (81 Fed. 545), 504, 528. Venus V. St. Louis, I. M. & S. R. Co. (15 I. C. C. R. 136), 159, 528, 547. Victor Fuel Co. v. Atchison, T. & S. F. Ry. Co. (14 I. C. C. R. 119), 513. Village of Goodhue v. Chicago G. W. Ry. Co. (11 I. C. C. R. 683), 509, 511. Virginia Rate Case (211 U. S. 210, 53 L. Ed. , 29 Sup. Ct. 67), 3, 204. W. Wabash, St. L. & P. R. Co. v. Illinois (118 U. S. 557, 30 L. Ed. 244, 1 I. C. R. 31, 7 Sup. Ct. 4), 206. Wabash R. Co. v. Sloop (200 I\Io. 198, 98 S. W. 607), 528. Warren Mfg. Co. v. Southern Ry. Co. (12 I. C. C. R. 381). 504, 600. Table of Cases Cited. 73 (Eeferences are to Sections.) Washer Grain Co. v. Missouri Pac. R. Co. (15 I. C. C. R. 147), 528, 532, 537, 538, 539, 545. Waterhouse v. Comer (55 Fed. 149, 19 L. R. A. 403, 1 Fed. Anti- Trust Dec. 119), 529. Watson V. Sutherland (5 Wall 74, 72 U. S. 74, 18 L. Ed. 580), 251. Waxelbaum v. Atlantic C. L. R. Co. (12 I. C. C. R. 178), 509. Weems Steamboat Co. v. People's Co. (214 U. S. 345, 53 L. Ed. , 29 Sup. Ct. ), 80, 509. Weil V. Penn. Co. (11 I. C. C. R. 627), 9], 509. Weisert Bros. Tobacco Co. v. American Tobacco Co. (163 Fed. 712), 600. Weleetka Light & Water Co. v. Ft. S. & W. R. Co. (12 I. C. C. R. 503), 507. Wells, Fargo & Co. v. Int. Com. Com. ( Fed. ) , 206. Wells Fargo Ex. Co. v. United States (212 U. S. 522, 53 L. Ed. , 29 Sup. Ct. ),509. Welton V. Missouri (91 U. S. 275, 23 L. Ed. 347), 307. Western Oregon Lumber Mfrs.' Asso. v. Southern Pac. Co. (14 L C. C. R. 61). 206. Western New York & P. R. Co. v. Penn Refining Co. (137 Fed. 343, 70 C. C. A. 23), 500, 528, 534, 545. 546. Western Union Tel. Co. v. Baltimore & 0. R. Co. (Telegraph Case) ( Fed. ), 206. Western Union Tel. Co. v. Call Pub. Co. (181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561). 1, 4. 67. 75, 504, 509, 528. Western Union Tel. Co. v. Childs (214 U. S. 274, 53 L. Ed. Sup. Ct. ) , 200. Westinghouse Air Brake Co. v. Great N. Ry. Co. (88 Fed. 258, 31 C. C. A. 525), 271. West Virginia N. R. Co. v. United States (134 Fed. 198, 67 C. C. A. 220), 574. Wheeler-Stenzel Co. v. National Window Glass Jobbers' Asso. (152 Fed. 864, 81 C. C. A. 658), 606. White V. Mich. Cent. R. Co. (3 I. C. C. R. 281, 2 I. C. R. 641), 537. Whitewell v. Continental Tobacco Co. (125 Fed. 454, 60 C. C. A. 290, 64 L. R. A. 689, 2 Fed. Anti-Trust Dec. 271). 601, 606. Wholesale Fruit and Producers' Asso. v. Atchison, T. & S. F. R. Co. (14 L C. C. R. 410), 164, 539. 74 Table of Cases Cited. (Eeferences are to Sections.) Wight V. United States (167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822), 78, 508. Wilcox V. Consolidated Gas Co. (212 U. S. 19, 53 L. Ed. 29 Sup. Ct. 392), 51, 206. Wilhoit V. Missouri, K. & T. Ry. Co. (12 I. C. C. R. 138), 504. Wilmington Tariff Asso. v. Cincinnati, Portsmouth etc. R. Co. 9 I. C. C. R. 118), 509. Wilson V. Chicago, M. & St. P. Ry. Co. (14 I. C. C. R. 549), 528. Wilson V. Rock Creek Ry. Co. (7 I. C. C. R. 83), 500, 508. Winchester & Strasburg R. Co. et al. v. Commonwealth (106 Va. 264, 55 S. E. 692), 3. Winona & St. Paul R. Co. v. Blake (94 U. S. 180, 24 L. Ed. 99), 206. Winsor Coal Co. v. Chicago & A. R. Co. (52 Fed. 716), 528. Wisconsin Cent. Ry. Co. v. United States (169 Fed. 76, C. C. A. ), 401, 590. Wisconsin M. & P. Co. v. Jacobson (179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115), 80, 304, 507. Wisewall, The Charles E. (74 Fed. 802, 1 Fed. Anti-Trust Dec. 608), 600. Wisewall, The Charles E. (86 Fed. 671, 30 C. C. A. 339, 1 Fed. Anti-Trust Dec. 850), 600. Wolverhampton & W. R. Co. v. London & N. W. Ry. Co. (43 L. J. Ch. 131, L. R. 16, Eq. 433), 252. Woodward & D. v. Louisville & N. R. Co. (15 I. C. C. R. 170), 159, 528. Worcester Excursion Co. v. Penn. R. Co. (3 I. C. C. R. 577, 1 I. C. R. 811, 2 I. C. R. 12, 792), 508. Workingman's Amalg. Council v. United States (57 Fed. 85, 6 C. C. A. 258, 1 Fed. Anti-Trust Dec. 184), 603. Wrigley v. Cleveland etc. R. Co. (10 I. C. C. R. 412), 508. Wylie V. Northern Pac. R. Co. (11 I. C. C. R. 145), 500, 502. Y. York Mfg. Co. v. I. C. R. Co. (3 Wall 70 U. S. 107, 18 L. Ed. 170), 201. Yoimg. Ex parte (209 U. S. 123, 52 L. Ed. 714, 28 Sup. Ct. 441), 3. SHIPPERS AND CARRIERS OF INTERSTATE FREIGHT. CHAPTER I. VALIDITY AND SCOPE OF THE ACT TO REGULATE COMMERCE. § 1. Common law obligations of common carriers. 2. Power of Congress over interstate commerce. 3. Constitutionality of the act to regulate commerce. 4. Eeasons for the act to regulate commerce. 5. Carriers included in the act. 6. Carriers duties under the act. 7. What transportation included in the act. 8. Powers and procedure of the Commission. 9. Court procedure with reference to the orders of the Commission. § 1. Common law obligations of common carriers. — The duty of a common carrier to transport at reasonable rates existed at common law.^ This was and is true because the business of car- riage for the public is one of a quasi public nature and the charges therefor are subject to regulation by the public. In Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, the court says : "Without going into detail, it may not be doubted that at common law, where a carrier refused to receive goods offered for carriage except upon the payment of an unreasonable sum, the shipper had a right of action in damages. It is also beyond controversy that when a carrier accepted goods without payment of the cost of carriage or an agreement as to the price to be paid, and made an unreasonable exaction as a condition of the de- livery of the goods, an action could be maintained to recover the excess over a reasonable charge. And it may further be con- ceded that it is now settled that even where, on the receipt of ^ Tift V. So. By. Co., 123 Fed. 789. 75 76 Validity and Scope of the [§ 2. goods by a carrier, an exhorbitant charge is stated, and the same is coercively exacted either in advance or at the completion of the service, an action maj^ be maintained to recover the over- charge. 2 Kent. Comm. 599. and note A ; 2 Smith Lead. Cas., pt. 1, 8th Ed., Hare & Wallace Notes, p. 457." Unjnst discrimination was also illegal at common law. The Supreme Court has approved a charge substantially to the ef- fect that not every discrimination in rates charged is unjust, and that in order to constitute an unjust discrimination, there must be a difference in rates under substantially similar conditions as to service. All rates must be reasonable ; and, under like condi- tions, all patrons must be served on equal terms. While there is no body of Federal common law separate and distinct from the common law existing in the several states, the principles of the common law are operative upon all interstate commercial trans- actions, except so far as they are modified by congressional enactment.' § 2. Power of Congress over interstate commerce. — Paragraph 3, Section 8, Article 1, of the Constitution of the United States contains the grant of power to Congress over interstate com- merce and gives Congress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes. ' ' The general subject of interstate commerce has been ably treated by others, and the scope of this work does not include such discussion. The purpose of this work is to treat of the rights and duties of shippers and carriers of freight that comes within the description of interstate commerce. The general sub- ject of commerce is well treated in the numerous works on the Constitution of the United States, and especially- in Judson on Interstate Commerce, and Regulation of Commerce, by Calvert. That the power to regulate interstate commerce is complete in Congress has never been doubted. IMr. Chief Justice Marshal stated this power in language that has frequently been cited with approval. He said:' ''We are now^ arrived at the inquiry. What is this power. It is the power to regulate ; that is to prescribe the rule by which == Western Umon Tel. Co. v. Call 6 L. Ed. 23, 70; Howard v. 111. Pub. Co., 181 V. S. 92, 4.5 L. Ed. Cont. E. Co., 207 U. S. 46.3, 492, 765, 21 Sup. Ct. 561. 493, 52 L. Ed. 297, 307, 28 Sup. « Gibbons v. Ogden, 9 Wheat 1, Ct. 141. § 3.] Act to Regulate Commerce. 77 commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and aclcnowledges no limitations other than are pre- scribed in the constitution. ***** If, as has always been undersood, the sovereignty of Congress, though limited to spe- cified objects, is plenary as to those objects, the power over com- merce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single gov- ernment, having in its constitution the same restrictions on the exercise of the power as are foiuid in the Constitution of the United States." § 3. Constitutionality of the act to regulate commerce. — The constitutional grant of power to regulate commerce with for- eign countries and between the states is plenary. The necessity for this grant was, as is well known, one of the principal reasons for dissatisfaction with the confederacy existing prior to the adoption of our constitution. Just what powers could be con- stitutionally delegated or given to the commission was the ques- tion to be determined by the framers of the acts to regulate com- merce. It has been held that to prescribe rates for the future is a legislative power, to determine whether or not a rate is reasonable is a judicial question.* The legislature of a state may directly prescribe maximum rates, or such power may be dele- gated to a commission.'^ Prior to the amendment known as the Hepburn Act the Interstate Commerce Commission was a mere administrative body, with no power to fix rates. It could make findings and declare a particular rate unreasonable, these find- ings were prima facie true and were entitled to the ' ' strength due to the judgment of a tribunal appointed by law and informed by experience.'"' The original act was by the Supreme Court' held to be valid.^ The court in the course of the opinion said : "Interpreting the Interstate Commerce Act as applicable, and as intended to apply, only to matters involved in the regulation * Chicago, M. & St. P. E. Co. v. 70 Ga. 694, 128 U. S. 174, 32 L. Minnesota, 134 U. S. 418, 33 L. p:(l. 377, 9 Sup. Ct. 47. Ed. 970, 10 Sup. Ct. 462, 702. « 111. Cent. R. Co. v. Int. Com. = Munn V. Illinois, 94 U. S., 4 Com., 206 U. S. 441, 454, 51 L. Ed. Otto. 113, 24 L. E<1. 77; Stone v. 1128, 1134, 27 Snp. Ct. 700. Farmers' L. & T. Co., 116 U. S. ^ Int. Com. Com. v. Brimson, 1.54' 307, 29 L. Ed. 636, 6 Sup. Ct. 334, U. S. 447, 38 L. Ed. 1047, 14 Sup. 1191; Georgia R. & B. Co. v. Smith, Ct. 1125. 78 Validity and Scope op the [§ 3. of commerce, and which Congress may rightfully subject to in- vestigation by a commission established for the purpose of en- forcing that act, Ave are unable to say that its provisions are not appropriate and plainly adapted to the protection oE interstate commerce from burdens that are or may be, directly or indi- rectly, imposed upon it by means of unjust and unreasonable discriminations, charges, and preferences. Congress is not lim- ited in its employment of means to those that are absolutely es- sential to the accomplishment of objects within the scope of the powers granted to it. It is a settled principle of constitutional law that 'the government which has a right to do an act, and has imposed on it the duty of performing that act. must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.' McCulloch V. Maryland, 17 U. S. 4 Wheat. 316, (4 L. Ed. 579, 602). The test of the power of Congress is not the judg- ment of the courts that particular means are not the best that could have been employed to effect the end contemplated by the legislative department. The judiciary can only inquire whether the means devised in the execution of a power granted are for- bidden by the constitution. It cannot go bej^ond that inquiry without entrenching upon the domain of another department of government. That it may not do with safety to our institu- ions. Union Pac. R. Co. v. United States (''Sinking Fund Cases") 99 U. S. 700, 718 (25 L. Ed. 496, 501)." In United States v. Delaware & Hudson Co., 213 U. S. 366, 53 L. Ed. Sup. Ct. it was contended that the so- called commodity clause of section one of the present act was unconstitutional, one of the grounds for such contention being that the penalties prescribed by the amended act brought it within the decision of the Supreme Court in Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 Sup. Ct. 441. The clause as construed by the Supreme Court, was held valid. On the ques- tion of the effect of the penalties, at page 417 of the opinion, the court said : "With reference to the contention that the commodities clause is void because of the nature and character of the penalties which it imposes for violations of its provisions, within the ruling in Ex parte Young, 209 U. S. 123, we think it also suf- § 3.] Act to Regulate Commerce. 79 fices to say that even if the delay which the clause provided should elapse between its enactment and the going into effect of the same does not absolutely exclude the clause from the rul- ing in Ex parte Young, a question which we do not feel called upon to decide, nevertheless the proposition is without merit, because, (a) no penalties are sought to be recovered in these cases, and, (b) the question of the constitutionality of the clause relating to penalties is wholly separate from the remainder of the clause, and, therefore, may be left to be determined should an effort to enforce such penalties be made." In speaking of the question of the constitutionality of the Elldns Act, District Judge Hough said : * " I do not apprehend that the constitutionality of the original interstate commerce act is at this late day sought to be attacked. But it is suggested that, inasmuch as by recent rulings the ship- per's common-law right to enforce by appropriate legal pro- ceedings a reasonable rate of carriage is said to be taken away, so that not only the regulation of carriers, but of shippers is now vested in a commission, it therefore follows that the present statutes, as thus interpreted, constitute a deprivaion of prop- eiy rights without due process of law. The subject is an in- teresting one, and will doubtless receive due consideration when the regulation of commercial transactions by commissioners and boards appointed by executive authority shall have more nearly approached a system than is now the case. It seems to me suffi- cient for the present argument that property rights, however dear, are not to be ranked higher than those of citizenship and personal liberty, and it is now held that officers appointed by the executive, and boards created by that authority, answering directly to the executive only, may pass upon the status of one who alleges himself to be a native-born citizen of the United States, and, by finding adversely to his assertion the place of his birth, debar him from the only country that he swears he ever knew, and this without any recourse to the courts of his alleged native land, unless there be found in the proceedings of the executive malice or abuse of discretion. U. S. v. JuToy, ]98 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. I think that the deprivation here alleged is very far within the executive power recognized by the case last cited." "United States v. Great N. R. Co., 157 Fed. 288, 291. 80 Validity and Scope of the [§ 3. It will be seen that the validity of the provision granting the power to the commission to prescribe rates for the future has not yet been passed upon. Some of the reasons discussed by the Supreme Court in the Brimson case supra apply cogently in support of the contention that power might be granted to the commission to fix rates appli- cable to the future. The language of Judge Hough supra seems to misconstrue the act. "The shipper's common law right to enforce by appropriate legal proceedings a reasonable rate of carriage" is not taken away. A method for the preliminary determination of what constitutes a reasonable rate is prescribed. In making this preliminary determination the commission acts with powers similar to those of a sj^ecial master or referee." This provision is accepted as legal and enforced by the Supreme Court in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. The order determin- ing what is a reasonable existing rate is only prima facie correct. The shippers right to enjoin an illegal advance has not been de- termined to have been taken away and the great weight of au- thority is to the effect that it still exists.^" The commission exer- cises two principal functions: (a) To declare an existing rate unreasonable and award reparation. This may be a judicial function, but is in no sense an exercise of judicial power. It can not enforce its orders, nor are such orders binding on the courts. The courts try the question of reparation cle novo and may grant a judgment for the reparation allowed by the commission or not, as may to the court seem consonant to law and the facts, (b) To prescribe rates for the future. This is an exercise of a leg- » Kentucky & Ind. B. Co. v. Louis- of Ga. E. Co., 158 Fed. 193 ; Jewett ville & N. R. Co., 37 Fed. 567, 2 v. Chicago etc. R. Co., 156 Fed. 160; L. R. A. 289, 2 I. C. R. 351. Macon Grocery Co. v. Atlantic C. "Tift V. So. Ry. Co., 123 Fed. L. R. Co., 163 Fed. 738; Northern 789, 138 Fed. 753, 159 Fed. 555; Pac. R. Co. v. Pacific Coast Lumber So. Ry. Co. V. Tift, 148 Fed. 1021, Mfg. Asso., 165 Fed. 1. The Macon 206 U. S. 428, 51 L. Ed. 1124, 27 Grocery case supra was reversed by Sup. Ct. 709; Chicago etc. R. Co. the Circuit Court of Appeals furn- V. Osborne, 52 Fed. 912, 3 C. C. A. ishing the only direct authority 347; Coe v. L. & N. R. Co., 3 Fed. against the proposition. Atlantic 775; Potlach Lumber Co. v. Spokane C. L. v. Macon Grocery Co., 166 Falls & N. Ry. Co., 157 Fed. 588; Fed. 206, 90 C. C. A. An appeal ia Kalispell Lumber Co. v. Great N. pending in the Supreme Court, E. Co., 157 Fed. 845; Kiser v. Cent. § 3.] Act to Regulate Commerce. 81 islative power. But why can not Congress select means and agencies through which it performs its legislative powers? It has been seen that state legislatures have exercised, through commissions, the power to fix rates for the future. The language of Mr. Justice Harlan quoted supra from the Brimson case would seem to answer the question in favor of the constitutionality of the act. The Constitution, Article I, section 1, Article II, sec- tion 1, and Article III, section 1, speaks of legislative, executive and judicial powers. These powers can be kept in separate hands, but when a legislator hears evidence to determine what is a reasonable tariff on a particular commodity, he hears and determines and, to some extent, exercises a judicial function; but as he only makes the law and cannot execute it, he has and exercises no judicial power. In the same sense the commission hears and determines but does not and can not execute. The grant of full power over interstate and foreign commerce gave to Congress the right to adopt all necessary means and agencies to make that power effective. The Supreme Court in the Vir- ginia Rate Case," having under discussion a rate fixed by the Corporation Commission of Virginia, made some interesting and apt observations showing the distinction between legislative and judicial fimctions. IMr. Justice Holmes there said : "We shall assume, as we have said, that some of the powers of the commission are judicial, and we shall assume, without de- ciding, that, if it was proceeding against the appellees to enforce this order and to punish them for a breach, it then would be sit- ting as a court and would be protected from interference on the part of the courts of the United States. "But we think it equally plain that the proceedings drawn in question here are legislative in their nature, and none the less so that they have taken place with a body which at another mo- ment, or in its principal or dominant aspect, is a court such as is meant by § 720. A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, "Prentis v. Atlantic C. L. Co., 211 U. S. 210, 53 L. Ed. 29 Sup. Ct. 67. 82 Vaijditv and Scope of the [§ 3. and therefore is an act legislative not judicial in kind, as seems to be fully recognized by the Supreme Court of Appeals, Com- monwealth of Va. V. Atlantic Coast Line Ry. Co., 106 Virginia 61, 64, 55 S. E. 572, and especially by its learned president in his pointed remarks in Winchester and Strasburg R. R. Co. and others v. Comonmwealth, 106 Virginia 264, 281, 55 S. E. 692. See further Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 167 U. S. 479, 499, 500, 505, 42 L. Ed. 243, 17 Sup. Ct. 896; San Diego Land & Town Co. V. Jasper, 189 U. S. 439. 440, 47 L. Ed. 892, 23 Sup. Ct. 571." In Honolulu R. T. Co. v. HaAvaii '' the Supreme Court said: "The business conducted by the transit company is not purely private. It is of that class so affected by a public interest that it is subject, within constitutional limits, to the governmental power of regulation. This power of regulation may be exercised to control, among other things, the time of the running of cars. It is a power legislative in its character and may be exercised directly by the legislature itself. But the legislature may dele- gate to an administrative body the execution in detail of the legislative power of regulation. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 393, 394. 38 L. Ed. 1014, 14 Sup. Ct. 1047 ; Interstate Commerce Com. v. Cincinnati, New Orleans & Texas Pacific Railway Company, 167 U. S. 479, 494, 42 L. Ed. 243, 17 Sup. Ct. 896." What effect the penalties prescribed in the act may have on its constitutionality in view of the Young Case supra, is a ques- tion that the act itself answers. The danger of incurring ruin- ous penalties pointed out in the Young Ca.se does not exist in the act to regulate commerce. In this act the rates prescribed by the commission become effective only after thirty days' notice, dur- ing which time the order fixing the rates may "be suspended or set aside by a court of competent jurisdiction," if the rate prescribed be illegal. The venue of suits "to enjoin, set aside, annul, or suspend any order or recjuirement of the commission" is fixed; and suits "may be brought at any time after such order is promulgated." It would seem that the carriers have full op- portimity to test an order before feeling compelled b}^ the possi- bility of penalties to obey it. ''- 211 U. S. 282, 53 L. Ed. ,29 " §§ 15, 16, of act to regulate Sup. Ct. 55. commerce. See Post §§ 539 to 550. § 4.] Act to Regulate Commerce. 83 § 4. Reasons for the act to regulate commerce. — Prior to the act of February 4, 1887/* carriers were free to make such rates on interstate transportation as they saw fit, subject only to the power of the courts under the common law, at the suit of indi- viduals to prevent irreparable damage or give redress for un- reasonable or im justly discriminatory rates." In Tex. & Pac. R. Co. v. Interstate Commerce Commission," the Supreme Court, speaking of this act, said: "It may be well to advert to the causes which induced its enactment. They chiefly grew out of the use of railroads as the principal modern instrumentality of commerce. AVhile shippers of merchandise are under no legal necessity to use railroads, practically they are. The demand for speedy and prompt move- ment virtually forbids the employment of slow and old-fashioned methods of transportation, at least in the case of the more valu- able articles of traffic. At the same time, the immense outlay of money required to build and maintain railroads, and the neces- sity of resorting, in securing the rights of way, to the power of eminent domain, in effect disable individual merchants and shippers from themselves providing such means of carriage. From the very nature of the case, therefore, railroads are monopolies, and the evils that usually accompany monopolies soon began to show themselves, and were the cause of loud com- plaints. The companies owning the railroads were charged, and sometimes truthfully, with making unjust discriminations be- tween shippers and localities, with making secret agreements with some to the detriment of other patrons, and with making pools or combinations with each other, leading to the oppression of entire communities. "Some of these mischiefs were partially remedied by special provisions inserted in the charters of the companies and by general enactments by the several states, such as clauses restrict- ing the rates of toll and forbidding railroad companies from be- coming concerned in the sale or production of articles carried '* Chapter Nine Post. 92, 45 L. Ed. 765, 21 Sup. Ct. 561; ^'Tex. & Pac. E. Co. v. Alilene TTnitocl States v. Mich. Cent. E. Cotton Oil Co., 204 U. S. 426, 51 Co., 122 Fed. 544. L. Ed. 553, 27 Sup. Ct. 350 ; Tift '" Tex. & Pac. E. Co. v. Int. Com. V. So. Ey. Co., 123 Fed. 789, 138 Com., 162 U. S. 197, 210, 211, 40 Fed. 753; Western Union Tel. Co. L. Ed. 940, 944, 945, 16 Sup. Ct. V. Call Publishing Co., 181 U. S. 666. 84 Validity and Scope of the [§ 5. and from making nnjust preferences. Relief, to some extent, M^as likewise found in the action of the courts in enforcing the principles of the common law applicable to common carriers — particularly that one which required uniformity of treatment in like conditions of service. "As, however, the powers of the states were restricted to their OAvn territories, and did not enable them to efficiently control the management of great corporations whose roads extend through the entire country, there was a general demand that Congress, in the exercise of its plenary power over the subject of foreign and interstate commerce, should deal with the evils complained of by a general enactment, and the statute in question was the result. ' ' § 5. Carriers included in the act. — The original act applied only to transportation wholly by railroad, or partly by railroad and partly by water. 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 oper- ated under a contract, agreement, or lease; all instrumentalities of shipment or carriage. The present act extends the law to apply to the transportation of oil or other commodities, except water and gas, by means of pipe lines or partly by pipe lines and partly by rail or water, and includes express companies; all switches, spurs, tracks and terminal facilities of every kind used or necessary in the transportation of the persons or property des- ignated therein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property; cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all ser- vices in connection with the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. Under the act, foreign carriers engaged in transporting be- tween points within and points without the United States are subject to the regulations prescribed ; " water carriers are sub- ject only when the transportation is partly by rail and partly by water, when both are used under a common contract, man- "Ee Investigation of Acts Grand Trunk Ky. of Canada, 3 I. C. C. E. 89, 2 I. C. E. 496. § 6.] Act to Regulate Commerce. 85 agement or arrangement for a continuous carriage or shipment." A corporation organized to construct and maintain a bridge across a river that rims between two states and which owns no ears, but merely furnishes a highway over which common car- riers and others may transport goods, is not within the pro- visions of the act.'' Express companies are now in terms in- eluded. § 6. Carriers duties under the act. — It is the duty of ever}^ carrier subject to the provision of the law to provide and fur- nish transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates appli- cable thereto. All charges for any service must be just and reasonable. Railroads are prohibited from transporting certain commodities in which they are interested. Switch connections, under certain circumstances, must be made with other carriers and with shippers. Rebates and other forms of discrimination are prohibited. Undue and unreasonable preferences to per- sons, places or particular kinds of traffic are illegal ; and, under substantially similar circumstances and conditions, no greater charge shall be made for a shorter than a longer haul, the shorter being included in the longer. Transportation of freight must be continuous, pooling is prohibited, and rates are re- quired to be published, posted and maintained."' The Supreme Court, speaking of the act, has said : " "It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and un- reasonable rates, was to secure equality of rates to all, and to de- stroy favoritism, these last being accomplished by requiring the publication of tariffs, and by prohibiting secret departures from such tariffs, and forbidding rebates, preferences, and all other forms of undue discrimination. To this extent and for these purposes the statute was remedial and is, therefore, entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve. ' ' "Post § 500. Companies v. United States, 212 U. '' Kentucky & Indiana Bridge Co. S. 522, 53 L. Ed. , 29 Sup. Ct. V. Louisville & N. E. Co., 37 Fed. ^'Post chapter nine. 567, 617, 2 L. E. A. 289, 2 I. C. E. ■""- New York, N. II. & H. E. Co. 351. V. Int. Com. Com., 200 U. S. 361, ==» United States v. Wells Fargo 391, 50 L. Ed. 515, 521, 26 Sup. Express Co., 161 Fed. 606. Affirm- Ct. 272. ed. American ^nd other Express 86 Validity and Scope op the [§ 7. The act. while repeating? and adopting the common law rule that rates should l)e reasonable, had as its j^i-incipal purpose the prevention of unjust discrimination and undue and unreasonable preference. The shipper could protect himself more easily from mireasonal)le rates than he could from secret and ruinous dis- crimination against him and preference to his competitor. Equality of treatment and the "open gateway policy""'' are sought to be obtained by the act. § 7. What transportation included in act. — The transporta- tion included in the act is that "from one state or territory of the TTiiited States, or the District of Columbia, to any other state or territory of the United States, or the District of Co- lumbia, or from one place in a territory to any other place in the same territory, or from any place in the United States to an adjacent foreign country and carried from such place to a port of trans-shipment, or shipped from a foreign country to any place in the United States and carried to such ])lace from a port of entry either in the United States or an adjacent for- eign country." The above quotation is taken from section one of the original act, except the phrase applying to transporta- tion between places in the same territory was added by the amendment of June 29, 1906. The proviso of section one, con- tained in the original act and retained in the present act, is as follows : "^ "Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one state and not shipped to or from a foreign country from or to any state or territory as aforesaid. ' ' The Daniel Ball"° is a case frequently cited and sometimes given a construction that is of doubtful correctness. The libel was brought by the United States for penalties under the act of July 7, 1838, 5 Stat. L. 304, requiring a license for vessels "to transport any merchandise or passengers upon the bays, lakes, rivers or other navigable waters of the United States." Two questions were presented by the steamer, one that the waters upon which she plied were not "navigable waters of the United =^Eahway V. E, Co. v. Delaware, " Tlie Daniel Ball v. United L. & W. E. Co., 14 I. C. C. E. 191, States, 10 Wall, 77 U. S. 557, 19 194. L. Ed. 999. ^Post §§ 500, 501. § 7.] Act to Regulate Commerce. 87 States." This question being answered by the court's holding that such waters were navigable waters within the meaning of the act, it was further contended that the steamer was engaged wholly in internal commerce. It was admitted that she received freight originating beyond the state destined to points in the state and also received freight in the state destined to points beyond. The language of ]\Ir. Justice Field must be construed in connection with the facts of the case, and it will be noticed that he -stresses the fact that the transportation was "on the navigable waters of the United States." The language of the great judge who wrote the opinion which is frequently cited is as follows : "So far as she was employed in transporting goods destined for other states, or goods brought from without the limits of Michigan and destined to places within that state, she was en- gaged in commerce between the states, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce ; for whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regu- lation of Congress. "It is said that if the position here asserted be sustained, there is no such thing as the domestic trade of a state; that Congress may take the entire control of the commerce of the country, and extend its regulations to the railroads within a state on which grain or fruit is transported to a distant market. "We answer that the present ease relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transporta- tion. And we answer further, that we are miable to draw any clear and distinct line between the authority of Congress to reg- ulate an agency employed in commerce between the states, when thHt agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. 88 Validity and Scope of the [§ 7. If the authority does not extend to an agency in such commerce when the agency is confined within the limits of a state, its en- tire authority over interstate commerce may be defeated. Sev- eral agencies combining, each taking up the commodity trans- ported at the boundary line at one end of a state, and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would be a dead letter." It cannot, when the facts of the case are considered, be cor- rectly contended that this opinion means that where a land car- rier without any contract of through shipment receives in a state a commodity for transportation to another point in the same state that such carrier is engaged in interstate commerce, even though such commodity may be subsequently transported beyond the state. If there were any doubt about the question, it has been settled by the Supreme Court in Gulf, C. & S. F. R. Co. v. Texas,'" where it was held that the fact that goods were brought to Texas from another state, would not make a shipment of such goods after they arrived in Texas to another point in the state, interstate commerce, there having been no original contract for the transportation from the first to the second point in Texas. A very clear and, we believe, a correct statement of the rule is made by Mr, Commissioner Prouty, who said : " ''An indispensable element in every through shipment would seem to be a contract for such through service ; an agreement be- tween the parties at the inception of the carriage that the freight shall be transported to the point of destination at the through rate." It is undoubtedly true that when an intrastate carrier joins in a through rate, a through tariff or a through bill of lading, or submits itself to any ' ' common control, management, or arrange- ment for a continuous carriage or shipment," it becomes subject to the provisions of the act to regulate commerce. However, if a state carrier should refuse to make any kind of an agreement to transport interstate freight and should only accept freight when tendered to it in the state and to be transmitted only to a point in the same state, such local carrier would not be engaged in interstate commerce, although a part or all of the commodities =«20-i U. S. 403, 51 L. Ed. 540, =' Ee Alleged Unlawful Eates and 27 Sup. Ct. 360. Practices, 7 I. C. C. E. 240, 247. § 7.] Act to Regulate Commerce. 89 shipped may have been brought from or destined to another state. In Cincinnati, N. 0. & T. P. R. Co. v. Int. Com. Com.,'' the above statement is not definitely conceded, but the rule as stated is supported by the case of Gulf, Colorado & S. F. Ry. Co. V. Texas, supra. In the case against the commission, just cited, the court said: ''It may be true that the ''Georgia Railroad Company" as a corporation of the State of Georgia, and whose entire road is within that state, may not be legally compelled to submit itself to the provisions of the act of Congress, even when carrying, between points in Georgia, freight that has been brought from another state. It may be that if, in the present case, the goods of the James & ]\Iayer Buggy Company had reached Atlanta, and there and then, for the first time and independently of any existing arrangement with the railroad companies that had transported them thither, the Georgia Railway Company was asked to transport them, whether to Augusta or to Social Circle, that company could undertake such transportation free from the control of any supervision except that of the State of Georgia. But when the Georgia Railroad Company enters into the car- riage of foreign freight, by agreeing to receive the goods by vir- tue of foreign through bills of lading, and to participate in through rates and charges, it thereby becomes part of a contin- uous line, not made by a consolidation with the foreign compan- ies, but made by an arrangement for the continuous carriage or shipment from one state to another, and thus becomes amenable to the federal act, in respect to such interstate commerce. We do not perceive that the Georgia Railroad Company escaped from the supervision of the commission, by requesting the for- eign companies not to name or fix any rates for that part of the transportation which took place in the State of Georgia when the goods were shipped to local points on its road. It still left its arrangement to stand with respect to its terminus at Augusta and to other designated points. Having elected to enter into the carriage of interstate freights and thus subjected itself to the control of the commission, it would not be competent for the ^ 162 U. S. 184, 192, 40 L. Ed. rado & N. W. By. Co., 157 Fed. 342, 935, 938, 16 Sup. Ct. 700. See alao, 85 C. C. A. 48 ; Chicago, B. & Q. United States v. Wood, 145 Fed. R. Co. v. United States, 157 Fed. 405, 411; United States v. Colo- 830, 85 C. C. A. 194. 90 Vauditv and Scope of the [§ 8. coiiipaiiy to limit that control, in respect to foreign traffic, to certain points on its road and exclude other points. ' ' It is not the origin or ultimate destination of the freight that determines the question of whether or not it is interstate or in- trastate commerce. A commodity moving from New York to Savannah may be interstate commerce. When that commodity is delivei-ed to its owner at Savannah, the interstate transporta- tion has ceased. The owner may thereafter slii]) the same com- modity to Atlanta without a break of the bulk, tiiis second ship- ment is intrastate commerce. If, however, the owner had by one contract shipped the connnodit}'^ from New York, through Savan- nah, to Atlanta, the whole movement would have been inter- state commerce. In United States v. Wood, 145 Fed. 405, 411, Judge Holland said: ''The test of subjection to the act is through routing in interstate commerce. When a carrier unites with one or others in making a rate for interstate traffic and a through bill is issued therefor, it is subject to the act." Trans- portation originating and ending in a state but passing through another state or territory is interstate commerce.'" Water car- riers not joining in a through route or common arrangement with rail carriers are not subject to the provisions of the act."" § 8. Powers and procedure of the commission. — In the first seven sections of the act are stated the rights of the shipper and the duties of the carrier. Sections eight, nine, thirteen, four- teen, fifteen, sixteen, sixteen-a and twenty relate to the rem- edies of shippers, and the administration of the act by the com- mission. Section ten relates to public penalties, section eleven to the appointment of the commissioners, sections twelve, eigh- teen, twenty-one, twenty-two and twenty-four apply to the com- mission's purely administrative duties. Section seventeen re- lates to forms of procedure. Section twenty-two expressly re- tains existing common law and statutory remedies, and section twenty-three provides for cumulative remedies in the courts of the United States. Section sixteen also provides a period of lim- itation in which to bring complaints for damages. Section twenty makes the receiving carrier liable for loss, damage, or injury to propert}^ which it has received for transportation, =«Hanley v. Kansas City S. E. 14.5 IT. S. 392, 36 L. Ed. 672, 4 Co., 187 U. S. 617, 47 L. Ed. 333, J. C. H. 87, 12 Sup. Ct. 806. 23 Sup. Ct. 214. Distinguishing Le- '" Re Jurisdiction Over Water high Valley R. Co. v. Pemisylvania, Carriers, 15 I. C. C. R. 205. § 8.] Act to Eegulate Commerce. 91 whether caused by it or a connecting carrier to whom it may have delivered the shipment. The duties prescribed in the act to regulate commerce are not in substance broader than such duties at common law. It is in the remedies to enforce such duties that the act possesses its real importance. When a common carrier has violated the act he is "liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation," and, in addition to this common law damage, to "a reasonable counsel or attorney's fee." Suit for such damages the act says may be brought by "complaint to the commission," or by suit "in any district or circuit court of the United States of competent jurisdiction." The Supreme Court of the United States, speaking of the pro- vision of section nine, just quoted, says:^^ "We think that it inevitablj" follows from the context of the act that the inde- pendent right of an individual originally to maintain actions in courts to obtain pecimiary redress for violation of the act con- ferred by the ninth section must be confined to redress of such wrongs as can, consistently with the contest of the act, be re- dressed by courts without previous action by the commission." This case was a suit brought in a state court to recover damages for an alleged illegal rate charged, the rate being that prescribed in- a legally filed tariff which had never been declared by the commission to be in violation of the law. AVhile this suit was brought in a state court, and while express authority to sue in the United States courts is granted l)y section nine, the rea- soning of the court would demand the same decision had the suit been brought in a "Court of the United States of competent jurisdiction." Prior to the Hepburn Act the commission might determine whether a particular rate was just or unjust, but could not pre- scribe a tariff of rates to control in the future. The amend- ment of June 29, 1906, gave power to the commission, upon the complaint of natural or corporate persons, including mercan- tile, agricultural, or manufacturing societies, public corpora- tions and state railroad commissions, or on its own motion, to make investigations with reference to rates or practices of inter- ^ Texas & Pae. Ey. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. 92 Validity and Scope op the [§ 9. state carriers, to make reports stating its eon elusions, together witli its decision, order or requirement, and when damages are awarded, such report to include the findings of fact on which the award was made; power and authority was granted to the commission and it was made its duty ' ' whenever, after full hear- ing upon a complaint made as provided in section thirteen of this act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, de- manded, charged, or collected by any carrier or carriers, subject to the provisions of this act, for the transportation of persons or property as defined in the first section of this act, or that any regulations or practices whatsoever of such carriers affecting such rates, are unjust or imreasonable, or unjustly discrimina- tory, or unduly preferential or prejudicial, or otherwise in vio- lation of any of the provisions of this act, to determine and prescribe what Mall be the just and reasonable rate or rates, charge or charges to be thereafter observed in such cases as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair, and reasonable to be thereafter followed ; and to make an order that the carrier shall cease and desist from such violations, to the extent to which the commission finds the same to exist, and shall not thereafter pub- lish, demand, or collect any rate or charge for such transporta- tion in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed. The power was also given the commission to require the establish- ment of through routes and to fix joint rates and prescribe an allowance which must be reasonable for a service or instrumen- tality furnished by the owner of property transported. All awards of the commission, except orders for the payment of money, take effect within a reasonable time, not less than thirty days, and continue in force as prescribed not exceeding two years unless suspended, set aside, or modified by the com- mission or a court of competent jurisdiction ; and it is the duty of every common carrier, its agents and employees, to observe and comply with such orders under penalty.'*' § 9. Court procedure with reference to the orders of the com- mission. — The commission is given power to apply to the courts to enforce its orders. Writs of mandamus may issue by the *^ Post chapter nine. § 9.] Act to Regulate Commerce. 93 circuit and district courts of the United States to compel the movement and transportation of freight without undue discrim- ination, and to compel the furnishing of cars and other facilities of transportation. Suits for reparation, after an order therefor has been granted by the commission, must be brought in the cir- cuit and district courts. Under certain circumstances, courts may suspend or set aside the orders of the commission.^ "What these circumstances are will be fully discussed herein in chap- ter five. Post chapter five. CHAPTER II. ALL SERVICES RENDERED BY COMMON CARRIERS IN THE TRANSPORTATION OF PERSONS OR PROPERTY OR IN CONNECTION THEREWITH MUST BE JUST AND REASONABLE. § .50. All charges must be reasonable. 51. Cost of carriers' equipment. 52. Cost of service. 53. Value of service. 54. Value of the commodity, its general utility and danger of loss. 55. Competition or its absence considered in determining reasonable- ness of rate. 56. Eates affected by amount of tonnage. 57. Distance and rate per ton mile. 58. General business conditions. 59. Rates long in existence are presumed to be reasonable. (iO. Grouping territory and giving each grouji same rate legal under some circumstances. (51. Basing point system. 62. Comparisons between different lines as a means of determining correct rates. 63. Car load and less than car load movements as affecting the rate. 64. Relation of throiigh rates to the total of the local rates. . 65. The public interest must be considered in making rates. 66. Through routes and joint rates. 67. General princijdos ajtplicable to the question, what is a reasonable rate? § 50. All charges must be reasonable. — At common law and Tinder the Interstate Commerce Act all charges made by com- mon carriers for any service rendered, or to be rendered, in the transportation of persons or property, or in connection there- with, shall be just and reasonable, and every unjust and imrea- sonable charge for such service, or any part thereof, is pro- hibited and declared unlawful.^ This principle of law neces- sarily arises from the franchises and practical monopoly inci- ^Post § 504. Int. Com. Com. v. 167 U. S. 479, 42 L. Ed. 24-5, 17 Cincinnati, N. O. & T. P. Ey. Co., Sup. Ct. 896. 94 § 50.] Charges by Common Carriers 95 dent to common carriers. The principle is not new, but for over two hundred years when private property is "affected with a public interest, it ceases to be juris privati only." Mr. Chief Justice Waite, speaking of governmental regulation of public carriers, said : " "This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine Avhat is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the constitution protects, we find that when private property is "affected with a public interest, it ceases, to be juris privati only." This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. L. Tr., 78, and has been accepted without objection as an essential element in the law of property ever since. Prop- erty does become clothed with a public interest when used in a manner to make it of public consequence, and affect the com- munity at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to th^ extent of the interest he has thus created. He may withdraw his grant by discontinuing the use ; but, so long as he maintains the use, he must submit to the control." What is a "just and reasonable" charge is not always easily determinable, but that is the dissideratum sought by the law. It will ])e noted that the charges "in connection" with trans- portation are included within the requirement of reasonableness. The same reason applies to charges for demurrage,^ refrigera- tion/ delivery,' terminal charges,** as well as other charges made for any service connected with transportation. The Supreme Court, however, has held, reversing the commission and the ^Miinn V. Illinois, 94 U. S., 4 ''St. Louis Hay & Grain Co. v. Otto 113, 24 L. Ed. 77, 84. Chicago, B. & Q. E. Co., 11 I. C. C. ^Penn. Millers' Asso. v. Phila- E. 82, 87. delphia & E. E. Co., 8 I. C. C. E. "Int. Com. Com. v. Chicago, B. 531, 558. & Q. E. Co., 186 U. S. 320, 342, 46 *Ee Charges for Transportation L. Ed. 1182, 1193, 22 Sup. Ct. 824; and Eefrigeration of Fruit. 11 I. Cattle Eaisers' Asso. v. Chicago, B. C. C. E. 129, Knudson-Ferguson & Q. E. Co., 12 I. C. C. E. 507. Fruit Co. V. Mich. Cent. E. Co., 148 Fed. 968. 96 ]\IusT BE Reasonable. [§ 51. lower courts, that carriers are entitled, for a service and expense in stopping goods in transit, to compensation in addition to the actual expense incurred.^ "Whether or not a particular rate on a single commodity is in and of itself just and reasonable can not be demonstrated.* Certain principles and presumptions have been made use of by the courts and commission in determin- ing cases that came before them, but it can not be claimed that rate making is a science. Very early in its history, the com- •mission expressed the difficulty of determining what constituted a just rate as follows: "The question of the reasonableness of rates is always a per- plexing one. A great variety of considerations are necessarily involved in each instance. Theory and conjecture merely are not enough. A comparison of one isolated rate with another is not sufficient. The whole field must be considered in order to approximate justice, and at best the result can not be regarded as other than an approximation.'"* Some of the principles announced by the courts and the com- mission will be stated in the next few succeeding sections. § 51. Cost of carrier's equipment. — Bonded indebtedness, op- erating expenses and dividends on the investment of the carrier all enter into the "cost of service" and should be considered, but the indebtedness and the stock upon which dividends are sought must represent actual obligations contracted in good faith and the expenses must be actual and reasonable." Mr. Commissioner Prouty,^ discussing this question, aptly says: "To make the capital accoimt of our railroads the measure of their legitimate earnings would place, as a rule, the corporation which has been honestly managed from the outset under enor- mous disadvantages." What the company is entitled to ask is a fair return upon the value of that which it employs for the • So. Ey. Co. V. St. Louis Hay & 680, 31 L. Ed. 841, 8 Sup. Ct. 1028. Grain Co., 214 U. S. 297, 53 L. Ed. Ee Alleged Excessive Eates on , Sup. Ct. . Food Products, 4 I. C. C. E. 48, 116, * National Hay Asso. v. Lake 3 I. C. E. 93, 151. Shore & M. S. E. Co., 9 L C. C. E. » Grain Shippers' Asso. v. HI. 264, 303, 304, 305. Cent. E. Co., 8 I. C. C. E. 158, 182. ' Howell V. New York, L. E. & See also Ee Proposed Advance in W. E. Co., 2 L C. C. E. 272, 2 I. Freight Eates, 9 L C. C. E. 382, C. E. 162. where is found a full discussion of " Dow V. Beidelman, 125 U. S. the question. § 51.] Charges by Common Carriers 97 public convenience.'^ In considering the value of the property employed in serving the public, it must be remembered that such a test is not absolute and, at times, yields to the public interest and the rule as to value of service, both of which are dis- cussed hereinafter. The cost and value of the railroad prop- erties, being merely one of the various facts that may be con- sidered in determining what in a particular case constitutes a reasonable rate. The value of property employed for the public convenience is an important element in determining the reasonableness of a whole schedule of rates. It can be of little value in determining the reasonableness of rates on a particular commodity. This is true because no method has ever yet been devised by which the cost of moving a particular commodity can be determined. "Whether or not such commodity is bearing its proper proportion of the charges that must be received to make "a fair return" to the carrier is a question that can not yet, if ever, be answered. It is true that certain out-of-pocket expenses can be allocated, but the proportion of the cost of maintenance, general superin- ten dance and other general expenses that should be charged against a particular movement can not be determined with any degree of certainty. The rule announced in Smyth v. Ames supra, is as follows: "We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by a corporation main- taining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And. in order to ascertain that value, the original cost of construction, the amount expended in permanent im- provements, the amount and market value of its bonds and stock, the present as compared with the original cost of construc- tion, the probable earning capacity of the property under par- ticular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are "Smyth V. Ames, (Nebraska U. S. 1, 53 L. Ed. , 29 Sup. Ct. Freight Kate Case), 169 TJ. S. 446, 148; Brabham v. Atlantic C. L. R. 42 L. Ed. 819, 18 Sup. Ct. 418; Co., 11 I. C. C. R. 464, 473; WiU- Covington & Lexington Turnpike R. cox v. Consolidated Gas Co., 212 Co. V. Sandford, 164 U. S. 578; 41 TJ. S. 19. 53 L. Ed, , 29 Sup, L. Ed. 560, 17 Sup. Ct. 198; Knox- Ct. 392. ville V. KnoxvilJe Water Co., 212 98 ]\IusT BE Reasonable. [§ 51. to be given sneli weight as may l)e just and right in each ease. We do not say that there may not be other matters to be regarded in estimating the value of tlie property. What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services rendered by it are reasonably worth." It should be kept in mind that this oft quoted rule formu- lated by the Supreme Court was announced in a suit to enjoin an act "To Regulate Railroads, to Classify Freights, to Fix Reasonable Maximum Rates to be Charged for the Transporta- tion of Freights upon Each of the Railroads in the State of Nebraska, and to Provide Penalties for the Violation of this Act." While the rule is a correct rule of law, as limited by the last sentence of the foregoing quotation, when considered in reference to a general schedule of rates, it can not be practically applied to a particular rate. Even with reference to a general schedule of rates it should be construed in connection wdth the decision of the case of Covington & Lexington Turnpike R. Co. V. Sandford," where the same distinguished Judge, IMr. Justice Harlan, who wrote the opinion in Symth v. Ames, said : "It is proper to say that if the answer had not alleged, in substance, that the tolls prescribed by the act of 1890 w^ere wholly inadequate for keeping the road in proper repair and for earning dividends, we could not say that the act was un- constitutional merely because the company (as was alleged and as the demurrer admitted) could not earn more than 4 per cent, on its capital stock. It cannot be said that a corporation operat- ing a public highway is entitled, as of right, and without refer- ence to the interests of the public, to realize a given per cent, upon its capital stock. When the question arises whether the legislature has exceeded its constitutional power in prescribing rates to be charged by a corporation controlling a public high- way, stockholders are not the only persons whose rights or in- terests are to be considered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are un- reasonable and unjust to the company and its stockholders. But that involves an inquirjj as to what is reasonable and just for the "Supra, note". § 51.] Charges by Common Carriers 99 public. If the establishing of new lines of transportation should cause a diminution in the number of those who need to use a turnpike road, and. consequently, a diminution in the tolls col- lected, that is not, in itself, a sufficient reason why the corpora- tion, operating the road, should be allowed to maintain rates that would be unjust to those who must or do use its property. The public cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends. The leg- islature has the authority in every case, where its power has not been restrained by contract, to proceed upon the ground that the public may not rightfully be required to submit to unrea- sonable exactions for the use of a public highway established and maintained under legislative authority. If a corporation cannot maintain such a highway and earn dividends for stock- holders, it is a misfortmie for it and them which the constitution does not require to be remedied by imposing unjust burdens upon the public." Value given to property by reason of its excessive earning power should not be considered, though the reasonable value of a franchise is an element in arriving at the total value of prop- erty. On the question of what is a reasonable return, the Su- preme Court has said : " "There is no particular rate of compensation which must in all cases and in all parts of the country be regarded as sufficient for capital invested in business enterprises. Such compensation may depend greatly upon circumstances and locality; among other things, the amount of risk in the business is a most im- portant factor, as well as the localitj^ where the business is con- ducted and the rate expected and usually realized there upon in- vestments of a somewhat similar nature with regard to the risk attending them. There may be other matters which in some cases might also be properly taken into account in determining the rate which an investor might properly expect or hope to receive and which he would be entitled to without legislative interference. The less risk, the less right to any imusual returns upon the investments." In this case the whole schedule of rates was involved and six per cent, was held to be reasonable, the court saying: ''Taking all facts into consideration, we concur with the court below on " Sux)ra, note ^-, Consolidated Gaa Co, C&se, 100 ^Fr^sT BE Keasonable. [§ 51. this question, and think complainant is entitled to six per cent, on the fair value of its property devoted to the public use." In the Knoxville Water Case," the Supreme Court announced a rule as to depreciation as follows : "Before coming to the question of profit at all the company- is entitled to earn a sufficient sum annually to provide not only for current repairs but for making good the depreciation and replacing the parts of the property when they come to the end of their life. The company is not bound to see its property gradually waste, without making provision out of earnings for its replacement. It is entitled to see that from earnings the value of the property invested is kept unimpaired, so that at the end of any given term of years the original investment re- mains as it was at the beginning. It is not only the right of the company to make such a provision, but it is its duty to its bond and stockholders, and, in the case of a public service corporation at least, its plain duty to the public. If a different course were pursued the only method of providing for replacement of prop- erty which has ceased to be useful would be the investment of new capital and the issue of new bonds or stocks." The rule has no application to the rates charged by express companies. Mr. Commissioner Prouty said:" ''In passing upon an entire schedule of railway rates (and when in this proceeding we pass upon the base rate of these defendants we really consider their entire schedule) the con- trolling factor is the value of the property which is devoted to the public service. The cost of originally producing or of re- producing that property is an important consideration, as is also the capitalization of the company and the value of its securities. In revising the rates of these express companies those consider- ations can have but little weight, since there is no real rela- tion between the value of the property and the service per- formed, nor in the case of these companies, between their cap- ital stock and just earnings." Increased cost of labor and equipment makes the cost of ser- vice higher, but this is generally offset by increased efficiency. This question is interestingly discussed and valuable tables given in the case of Class and Commodity Ke Eates from St. Louis to Texas Common Points, 11 I. C. C. R. 238 et. seq. "Supra, note". " Kin del v. Adams Express Co., 13 I. C. C, E. 475, 485. § 52.] Charges by Common Carriers 101 § 52. Cost of service. — The value of the equipment of a com- mon carrier, of course, is an element in determining what it costs to transport any particular commodity, and what such cost is, that is the "cost of service," is a fact that is properly con- sidered in determining what is a reasonable and just rate to be charged.'^ This item will be seen referred to by the Interstate Commerce Commission frequently in its opinions determining whether or not the rates under discussion are or are not reason- able. The Supreme Court, speaking of the commission, says : "The tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and ship- pers. "" In considering a proposed advance in freight rates,^" Mr. Commissioner Prouty first considers "is the rate reasonable estimated by the cost and value of the service." In another case,'" Mr. Commissioner Clements said : ' ' The test of the rea- sonableness of a rate is not the amount of the profit in the busi- ness of the shipper or manufacturer, but whether the rate yields a reasonable compensation for the services rendered." Cost of service, however, can not be made an absolute guide in fixing rates. District Judge Bethea " well says : ' ' The cost of service to a carrier would be an ideal theory, but it is not prac- ticable. Such cost can be reached approximately, but not accu- rately enough to make this factor controling. It is worthy of consideration, however." Judge Clements expressed the rule of the commission as follows : " "While in the relative adjustment of rates as between places on its line a carrier cannot rightfully ignore the relative cost to it of the respective services rendered by it, and since it ordi- narily costs more to haul freight a longer distance than a shorter one, the carrier cannot rightfully ignore substantial differences ^^ Re Alleged Excessive Rates on "Re Proposed Advance in Freight Food Products, 4 I. C. C. R. 48, 3 I. Rates, 9 I. C. C. R. 382. C. R. 93 ; Schumacher Milling Co. -" Central Yellow Pine Asso. v. V. Chicago, R. I. & P. Ry. Co., 6 I. 111. Cent. R. Co., 10 I. C. C. R. 505. C. C. R. 61, 4 I. C. R. 373; Re Pro- ■ =i Int. Com. Com. v. Chicago Great posed Advances in Freight Rates, 9 W. R. Co., 141 Fed. 1003, 1015, and I. C. C. R. 382; Int. Com. Com. v. eases cited. Affirmed, same style Chicago G. W. Ry. Co., 141 Fed. case, 209 U. S. 108, 52 L. Ed. 705, 1003, 1015. 28 Sup. Ct. " Tex. & Pac. Ry. Co. v. Int. Com. "- Cannon v. Mobile & O. R. Co., Com., 162 U. S. 197, 40 L. Ed. 940, 11 I. C. C. R. 537, 542. 16 Sup. Ct. 666, 5 I. C. R. 405. 102 ]\IusT BE Reasonable. [§ 52. in distance where all other circumstances and conditions are equal, or substantially similar, there are other matters of equal importance to that of cost of the service and often more con- trolling which must also be considered. Among these is compe- tition both of carriers and of markets. The greater the inequal- ity or dissimilarity in other potent circumstances or conditions the less controlling becomes the matter of relative cost." In determining the cost of service Mr. Commissioner Clements said: ''Expenditures for additions to construction and equip- ment should be reimbursed b}^ all the traffic they accommodate during the period of their duration, and improvements that will last many years should not be charged wholly against the rev- enue of a single year."^ The principle, however, must be ap- plied in connection with the holding in the Knoxville "Water Co. case," that earnings should be sufficient to pay a reasonable re- turn on the property employed in the public service and pro- vide against depreciation. "Cost of service," could not, in any event, require an unreasonable rate, and, under some circum- stances, a carrier may be compelled to perform a particular ser- vice to the public at an actual loss. In Atlantic C. L. R. Co. v. North Carolina Corporation Commission "' the Supreme Court had under consideration an order of the North Carolina Commis- sion requiring the carrier to make a particular connection with certain passenger trains. To do this the carrier had to put on an extra train at a loss. The Supreme Court sustained the order of the North Carolina Commission, saying : "But this ease does not involve the enforcement by a state of a general scheme of maximum rates, but only whether an exer- cise of state authority to compel a carrier to perform a par- ticular and specified duty is so inherently unjust and unreason- able as to amoimt to the deprivation of property without due process of law or a denial of the equal protection of the laws. In a case involving the validity of an order enforcing a scheme of maximum rates, of course the finding that the enforcement of such scheme will not produce an adequate return for the opera- ^ Central Yellow Pine Asso. v. Co., 212 U. S. 1, 53 L. Ed. , 29 111. Cent. R. Co., 10 I. C. C. R. 505; Sup. Ct. 148. 111. Cent. R. Co. v. Int. Com. Com., =^ Atlantic Coast Line R. Co. v. 206 U. S. 441, 461, 51 L. Ed. 1128, North Carolina Corp. Com., 206 TJ. 1136, 27 Sup. Ct. 700. S. 1, 24, 25, 51 L. Ed. 933, 944, 27 "Knoxville v. Knox^dlle Water Sup. Ct. 585. § 53.] Charges by Common Carriers 103 tion of the railroad, in and of itself, demonstrates the unrea- sonableness of the order. Such, however, is not the case when the question is as to the validity of an order to do a particular act, the doing of which does not involve the question of the profitableness of the operation of the railroad as an entirety. The difference between the two cases is illustrated in St. Louis & S. F. R. Co. V. Gill, 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. Rep. 484, and Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. Rep. 900. But even if the rule applicable to an entire rate scheme were to be here ap- plied, as the findings made below as to the net earnings constrain us to conclude that adequate remuneration would result from the general operation of the rates in force, even allowing for any loss occasioned by the running of the extra train in ques- tion, it follows that the order would not be unreasonable, even if tested by the doctrine announced in Smyth v. Ames and kin- dred cases." § 53. Value of service. — The shipper cannot ordinarily pay more than the service is worth, consequently, from necessity, as well as from justice, the value of the service must constitute the maximum charge. Rates should be proportioned to the value of the service to the sliipper."" The value of the coimnodity enters into the value of the service, and consequently must also be considered in determining what constitutes a reasonable rate." That the interests of the public is the most important consideration in determining the reasonableness of charges by public service corporations, has been frequently announced by the Supreme Court as an established principle in rate making. Mr. Justice Harlan says:''" "The public can not properly be subjected to unreasonable rates in order simply that stockholders may earn dividends." This view is further supported by the case of Smyth v. Ames,'" where it was said : "It can not be admitted that a railroad corporation maintaining a highway =" Delaware State Grange v. New T. C. C. "R. 548; Int. Corn. Com. v. York etc. R. Co., 4 I. C. C. R. 58S, C'liieaoo G. W. R. Co., 141 Fed. 3 T. C. R. 5.'54, 561; Loud v. South 1003, 1015, and cases cited. Carolina R. Co., 5 I. C. C. R. 529, "Covington & L. Turnpike Road 4 I. C. R. 205, citing cases. Co. v. Sandford, 164 U. S. 578, 596, "ITowoll V. New York, L. E. & 41 L. Ed. 560, 566, 17 Sup. Ct. 198. W. R. Co., 2 I. C. C. R. 272, 2 1. '■"' 169 U. S. 466, 42 L. Ed. 819, C. R. 162; Tift v. So. Ry. Co., 10 18 Sup. Ct. 418. 104 Must be IIeasonable. [§ 53. under the authority of the state may fix its rates with a view solely to its own interests, and ignore the rights of the public. The rights of the public would be ignored if rates for the trans- portation of persons or property on a railroad are exacted with- out reference to the fair value of the property used for the public or the fair value of the services rendered." In San Diego Land & Toaati Co. v. National City,^° the Supreme Court reviewed and approved the case and reiterated the principle of the importance of considering "fair value * * * of the services rendered. ' ' The ''value of the service" may mark the boundary beyond which rates may not ordinarily go, but the rule can not be at all times applied. The commission has held that a difference in the value of two car loads of peaches would not justify a higher rate on the most valuable car.*' This is true because it is imprac- ticable to know the exact value of the service in any case, and, as will be frequently seen throughout this chapter, rate making does not yield to unalterable theoretical rules. Judge Bethea *" says of the rule : ' ' This is considered an ideal methed, when not interfered with by competition or other factors. ***** This method is considered practical and is based on an idea sim- ilar to taxation." Kirkman, in The Science of Eailways, vol, 8, pp. 42, 43, writing from the standpoint of a trained railway man, says: ''A prime factor in determining the rates carriers charge, is the value of the ser\'ice to the shipper. This is the basis of re- muneration for labor in every field of industry. Any other would be oppressive, if not prohibitory. Its operation involves the exercise of discrimination. But discrimination is the in- stinct of trade, its intelligent, directing and governing force. The ignorant, the vicious, and the superficial speak of it, when exercised by railroads, as something oppressive, something to be discountenanced. This is because they do not consider the an- alogies of trade, or its merits. The charge of carriers can not be disproportionate to the thing handled. If more is charged than I can reasonably pay, it prohibits me from doing business; «" 174 TJ. S. 739, 43 L. Ed. 1154, 19 ^ Int. Com. Com. v. Chicago G. Sup, Ct. 804. W. E. Co., 141 Fed. 1003, 1015. *^ Georgia Peachgrowers ' Asso. v. Noyes Am. E. E. Eates 53, Int, Atlantic C, L, E, Co., 10 I, C. C. Com, Com, v, Baltimore & O, E, E, 255. Co., 43 Fed, 37, 53, 3 I, C. E. 192. § 53.] Charges by Common Carriers 105 but if I am charged what I can afford, I am not treated imjustly, so long as the general profits of the seller are not unreasonable. It is not an act of injustice to me that a carrier charges a higher rate for my blooded horse than for my neighbor's mule, although they both occupy the same space. I can not afford to pay the same rate for the brick used in the construction of my house that I can for the carpets that cover its floors. Rates are based on discriminations of this kind, at once practicable, necessary, and wise." This statement is correct as stating a general law, but the law is subject to many modifications. His illustration of the blooded horse and the mule is not a safe application of the rule. That a horse may be worth ten or twenty times as much as a mule makes the transportation service for moving the horse more valuable than for moving the mule ; but when the horse is worth only a little more than the mule, it would be impossible to grade the relative rates. Difference in value on the same kind of commodity can rarely be practically applied in rate mak- ing. Value of service is more a limitation on rates than a rea- son for increasing rates. Mere difference in value or use of a commodity offers no reason for a difference in rates. The com- mission has said : ^^ "It may be fairly said in conclusion that the carriers in this case show no sufficient justification whatsoever for discrimina- ting between the three kinds of fire-clay brick involved in this proceeding. The brick themselves are so nearly alike in color that, being the same size and of the same weight, they are prac- tically indistinguishable the one from the other. To make dif- ferent rates on each of these brick is virtually to permit the shipper to declare which of the three rates he chooses to impose upon the freight. The receiving agent of the railroad, unless an expert in fire-clay brick, could not tell which of the three rates to impose upon any one of the three varities, except by inquiring what use was to be made of these brick. Aside from the diffi- culty in learning what use the brick were to be put to upon reaching their destination, we cannot regard a classification as scientific, or a difference in rates as well based, which is alto- gether founded upon a distinction that has no transportation significance. ^ Stowe-Fuller Co. v. Pennsylvania Co., 12 I. C. C. E. 215, 220. 106 Must be Reasonable. [§ 54. Moreover, such a difierentialion, if permitted and extended throughout the various classes of freight handled by railroads, would lead to an almost endless multiplication of rates, which could find no excuse save in the use which might be made of the article transported. One class of lumber of the same measure- ment and of the same value and of the same general appear- ance and of the same weight as another might be given a dis- tinct and separate rate. And so with building stone and cement and steel in certain forms, and many other commodities which will readily suggest themselves. Classification must be based upon a real distinction from a transportation standpoint; and we can find no such distinction between these three classes of brick, which are made of the same material and come out of the same kiln, as justifies a difference in rates. To hold otherwise would be to promote false billing on the part of shippers, and to require the carriers, if they would avoid the penalty of the laAv, to make a practically impossible examination into the use to which each shipment of these brick was put." AYlien increased value of a commodity increases the hazard, the cost of service from loss and damage may be increased and that fact might justify an increased rate.** § 54. Value of the commodity, its general utility and danger of loss. — The commission in the Tift and Central Yellow Pine cases,'''^ as reasons for its conclusion that the rates there imcler investigation were illegal and unreasonable, said, "Lumber is an inexpensive freight." "It is not what is known as perishable traffic, ******* and in case of accident, the damage is insignificant." "Lumber is moreover an article of general util- ity." Each of these cases received the approval of the Supreme Court.*" The element of value in the commodity transported forms a proper consideration to be taken into accoimt in the establishment of a rate. The liability of a carrier as an insurer of freight against all loss, except such as is occasioned by the act of God or the public enemy is elementary, and the greater ^'Kindel v. Adams Express Co., '"So. Ey. Co. t. Tift, 148 Fed. 13 I. C. C. K. 475, 485. 1021, 206 U. S. 428, 51 L. Ed. 1124, ^Tift V. So. Ey. Co., 10 I. C. C. 27 Sup. Ct. 709; 111. Cent. E. Co. v. E. 548; Central Yellow Pine Asso. Int. Com. Com., 206 U. S. 441, 51 V. 111. Cent. E. Co., 10 I. C. C. E. L. Ed. 1128, 27 Sup. Ct. 700. 505. § 55.] Charges by Common Carriers 107 the value the greater the risk.^' In the Food Products Case,'^ it was stated : ' ' While rates should not be so low as to impose a burden on other traffic, they should have reasonable relation to the cost of production, and the value of the transportation ser- vice to the producer and shipper. In the carriage of the great staples which supply an enormous business, and which in market value and actual cost of transportation, are among the cheapest articles of conmierce, rates yielding moderate profit are both justifiable and necessary. ' ' Iron should not bear a rate equal to the average of all rates."" Coal " and salt " are low. grade traffic and entitled to relatively low rates. § 55. Competition or its absence considered in determining reasonableness of rate. — In the Central Yellow Pine and the Tift Cases,*" the commission had under coi:jsideration a rate fixed by the concerted and concurrent action of the carriers and there said: "We deem it luinecessary to express an opinion as to whether this concert of action in fixing the advanced rate amoimts to an unlawful agreement under the so-called "Anti-Trust Act" — the enforcement of that act being a matter properly cognizable by the courts. It is clearly, however, within the scope of our authority and duty to consider this joint or concerted action of the defendants in the aspect of its bearing upon the reasonable- ness and validity of the advanced rate, the result of that action. Where rates are established by concert of action and previous understanding between the carriers, it is manifest, whether or not there be a binding agreement to maintain such rates, that the element of competition is eliminated. Concert of action is wholly inconsistent with competition and, during the time the rates fixed 3" Howell V. New York, L. E. &, ^^ Colorado Fuel & Iron Co. v. W. Ey. Co., 2 I. C. C. E. 272, 2 I. So. Pac. Co., 6 I. C. C. E. 488, 515. C. E. 162, 172. See also Int. Com. ^'' Denison Light & Power Co. v. Com. V. Chicago Great W. Ey. Co., Mo., Kan. & Tex. Ey. Co., 10 I. C. 141 Fed. 1003, 1015, and citations. C. E. 337, ^ Ee Alleged Excessive Eates on *^ Anthony Salt Co. v. Mo. Pac. Food Products. 4 I. C. C. E. 116, Ey. Co., 5 I. C. C. E. 299, 515, 4 I. 3 I. C. E. 93, 104. See also Mayor C. E. 33. otc. of Wichita v. Atchison, T. & S. ^=10 I. C. C. E. 505, 548. V. Ey., 9 r. C. C. E. 534, 548; Farm- ers' etc. Club V. A. T. & S. F. Ey. Co., 12 I. C. C. E. 317, 360. 108 ]\IusT BE Reasonable, [§ 55. by concert of action are maintained, the effect, so far as com- petition is concerned, is the same as if there was a binding agree- ment to maintain snch rates. ''Competition is favored by law. The. object of the pooling section (§5) of the Interstate Commerce Act is to prevent "any contract, agreement, or combination" between otherwise compet- ing carriers by which competition between them may be done away with. In East Tenn., Va. & Ga. Railway Co. v. Interstate Commerce Commission, it is said, "The Interstate Commerce Law, it is conceded, was intended to encourage normal competi- tion. It forbids pooling for the very purpose of allowing com- petition to have effect." (99 Fed. Rep. 61). The Supreme Court holds that the suppression of competition is violative of the so-called "Anti-Trust Act," in that, such suppression restrains trade and conmierce bj^ "keeping rates and charges higher than they might otherwise be under the laws of competition." (Joint Traffic Association Case, 171 U. S. 505, 569, 571, 577, 43 L. Ed. 287, 288, 290, 19 Sup. Ct. Rep. 25: 43 L. Ed. 259, 1 Fed. Anti- Trust Doc. 869 ; U. S. V. Trans-]Missouri Freight Association, 166 U. S. 341, 41 L. Ed. 1027, 17 Sup. Ct. Rep. 540. The ground upon which competition is favored is that it con- duces to the reasonableness of rates or to the protection of the public from unreasonably high or excessive rates. In United States V. Freight Association, supra, the Supreme Court says, "competition will itself bring charges down to what may be rea- sonable." (166 U. S. 339, 41 L. Ed. 1027, 17 Sup. Ct. Rep. 540). The act to regulate commerce (§ 1), in prohibiting im- reasonableness of rates, in effect forbids whatever conduces to such unreasonableness. In any event, it is incumbent upon the commission, when the reasonableness of rates is in issue before it. to consider how those rates were brought about — whether they are the product of untrameled competition or the result of a concert of action or combination between the carriers establish- ing and maintaining them. The advanced rates complained of cannot be claimed to be the outcome of competition because "the natural, direct and immediate effect of competition is to lower" (United States v. Joint Traffic Asso., 171 U. S. 577, 43 L. Ed. 290, 19 Sup. Ct. Rep. 25), rather than advance, rates. The advanced rates must be presumed to be higher than rates which unrestrained competition would produce." § 55.] Charges by Common CxVrriers 109 This principle received the approval of the courts." The Su- preme Court has said: "The interstate commerce law was in- tended to promote trade."" The Supreme Court in Int. Com. Com. V. Chicago G. W. R. Co." has said : "It must be remembered that railroads are the private prop- erty of their owners; that while, from the public character of the work in which they are engaged, the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet, in no proper sense, is the public a general manager. As said in Interstate Commerce Commission v. Alabama IMidland R. Co., 168 U. S. 144. 172, 42 L. Ed. 414, 425, 18 Sup. Ct. Rep. 45, 51, quoting from the opinion in Circuit Court of Appeals, same style case, 5 Inters. Com. Rep. 697, 21 C. C. A. 59, 41 U. S. App. 466, 74 Fed. 723: " 'Subject to the two leading prohibitions that their charges shall not be unjust or imreasonable, and that they shall not un- justly discriminate so as to give undue preference or disadvan- tage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, — free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their o^\•n situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits.' "It follows that railroad companies may contract with ship- pers for a single transportation or for successive transportations, subject though it may be to a change of rates in the manner pro- vided in the interstate conunerce act (Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. Rep. 428), and also that, in fixing their own rates, they may take into ac- count competition with other carriers, provided only that the competition is genuine, and not a pretense (Interstate Commerce Commission v. Baltimore & 0. R. Co. 145 U. S. 263, 36 L. Ed. 699, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. 844; Texas & P. '^Tift V. So. Ey. Co., 138 Fed. "Louisville & N. R. Co. v. Behl- 75.3; 111. Cent. R. Co. v. Int. Com. mer, 17-5 U. S. 648, 44 L. Ed. 309, Com., 206 U. S. 441, 51 L. Ed. 1128, 20 Sup. Ct. 209. 27 Sup. Ct. 700. «209 U. S. 108, 119, 120, 52 L, Ed. 705, 712, 713, 28 Sup. Ct, no Must be Reasonable. [§ 55, R. Co. V. Interstate Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; In- terstate Commerce Commission v. Alabama Midland R. Co. supra ; Louisville & N. R. Co. v. Behlmer, 175 IT. S. 648, 44 L. Ed. 309, 20 Sup. Ct. Rep. 209; East Tenn., V. & G. R. Co. v. Interstate Commerce Commission, 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. Rep. 516; Interstate Commerce Commission v. Louisville & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. Rep. 687). "It must also be remembered that there is no presumption of Avrong arising from a change of rate by a carrier. The pre- sumption of honest intent and right conduct attends the action of carriers as well as it does the action of other corporations or individuals in their transactions in life. Undoubtedly, when rates are changed, the carrier making the change must, when properly called upon, be able to give a good reason therefor; but the mere fact that a rate has been raised carries with it no presumption that it was not rightfully done. Those presump- tions of good faith and integrity which have been recognized for ages as attending human action have not been overthroAvn by any legislation in respect to common carriers." It is evident "that there is no presumption of wrong" when a carrier "takes into account competition with other carriers" and without an illegal combination between it and other carriers makes an advance in its rates, for as said by the court in the course of the same opinion, "Competition eliminates from the case an intent to do an unlawful act." But when an advance is made as a result of a combination that is illegal, there can be no presumption that the act of making the advance was in good faith and the carrier should not only show "a good reason there- for," but the rate so advanced is presumptively illegal, and the carrier should be required to clearly show that it is not un- reasonable. Judge Speer, with that ability and clearness that usually mark his opinions, and speaking of the case of Tift v. So. Ry. Co., supra, states the rule correctly as follows: " "The commission concludes that it is its duty to consider this joint, or concert of, action of the defendants as bearing upon "Tift V. So. Ey. Co., 138 Fed. TT. S. 428, 51 L, Ed. 1124, 27 Sup. 753, 761, 762, 763. Affirmed. So. Ct. 709. Bj. Co. V. Tift, 148 Fed. 1021, 206 § 55.] Charges by Common Carriers 111 the reasonableness and validity of the advanced rate which re- sults. It holds that the. element of competition is eliminated. In the absence of legitimate competition, destroyed, as we shall presently see, by methods obviously illegal, the commission pre- sumes that the advance rates are higher than legitimate compe- tition would produce. In other words, the marked increase of charges for transportation of that commodity which, save one other, affords the largest tonnage of freight to the respondent roads, did not originate from a normal or reasonable exigency of the respondents' business. On the contrary, it was an arbitrary exaction, imposed by a combination of railroad agents made in restraint of the natural movement of the produce in the lum- ber trade. This combination or concert of action on the part of the respondent railroads is plainly violative of that provision of the interstate commerce law which forbids pooling. This was enacted, among other things, for the purpose of securing com- petition. Pooling may be as well effected by a concert in fixing in advance the rates which in the aggregate would accumulate the earnings of naturally competing lines, as by depositing all of such earnings to a common account and distributing them afterwards. That such an association and concert of action be- tween agents of naturally competing lines is destructive of com- petition is equally unanswerable. To entertain any other view is to ignore reiterated decisions of the Supreme Court of the United States and many rulings of the circuit* courts and the state courts. Perhaps the leading cases on this subject are United States v. Freight Association, 166 U. S. 341, 17 Sup. Ct. 540, 41 L. Ed. 1007 ; Joint Traffic Association Case, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259. In the first case the court had under consideration the legality of the Trans-Missouri Freight Association. The agreement of that body may differ in form, but its substantial purpose was the same as that of the Southeastern Freight Association. It avowedly was the "mu- tual protection of the railroads by establishing and maintaining reasonable rates, rules and regulations on all freight traffic, both through and local." After argument by many of the most eminent counsel in the country, and after exhaustive considera- tion, the court held that the anti-trust law prohil)iting con- tracts, combinations, and conspiracies in restraint of trade or commerce among the several states or with foreign countries ppply to and cover common carders hy railroad, and a contract 112 ]\rusT BE Reasonable. [§ 55. between them in restraint of such trade or commerce is pro- hibited even though the contract is entered into between com- peting railroads only for the purpose of thereby effecting traf- fic rates for the transportation of persons and property. It was further held that, in order to maintain such a contention the complainant is not obliged to show that the agreement in ques- tion was entered into for the purpose of restraining trade or commerce if such restraint is the necessarj^ effect, and con- cludes that the anti-trust act applies to railroads, and that it renders illegal all agreements which are in restraint of trade or commerce. The court then proceeds to declare that the agree- ment of the association does in fact constitute such a restraint in violation of law. It is proper to state that four judges, three of whom are not now on the bench of the court, dissented from this conclusion ; but the opinion of the majority is, of course, controlling. In the subsequent case of the United States v. Joint Traffic Association, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259, the court, after full consideration, reaffirmed its holding in the Trans-Missouri Case. It further declares that Congress, with regard to interstate commerce, and in the course of regulating it in the case of railway corporations, has power to say that no contract or combination shall be legal which shall restrain trade and coimnerce by shutting out the operation of the general law of competition. The tremendous significance of these findings is shown by the multitude of cases in which the doctrines an- nounced have been utilized and reaffirmed. See Rose's Notes on U. S. Reports, vol. 12, p. 958 et. seq. ; also supplement to same publication, vol. 3, p. 795. Perhaps the most noted case on this subject is that of the Northern Securities Company v. United States. 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. There it was held that a contract by which a majority of stock of two companies who OAMied parallel interstate railroads is transferred to a corporation organized for the purpose of holding and vot- ing the same and receiving dividends and dividing the same pro rata among the stockholders of the two companies, violates the anti-trust law. Such is the superabundance of authority upon this subject that further citation would be superfluous. It may be pardonable to recall that one of the pioneer cases on this im- portant topic was that of Rowena Clarke v. Central R. R. & Banking Company of Georgia (C. C.) 50 Fed. 338, 15 L. R. A. 683 et. seq., heard in this (^strict. The case was decided ii^ § 55.] Charges by Common Carriers 113 1892. Commenting upon similar conditions, it was there ob- served : " 'It is not difficult to perceive that a combination of corpora- tions which produces a condition so inequitable cannot be sanc- tioned by the law. "We believe that transactions of this char- acter are within the spirit, if not within the letter, of the act of Congress Imown as the "Sherman Anti-Trust Law" (Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200). It is certainly, as we have seen, obnoxious to the law of Georgia, and it was certainly as obnoxious to the common law." "This decision was made 13 years ago. The principles then announced, which were challenged in many influential quarters, are now imbedded in the country 's jurisprudence and in the leg- islation of the national Congress. It was insisted with great earnestness by the learned special counsel for the respondents that because the various members of the association expressly stipulated in the articles of organization that each and all members could at will and at any time withdraw from the agreement to fix rates, it was not a combination in restrint of trade. This view seems wholly untenable. That is merely a recitation of a privilege which any party to an unlawful enter- prise inherently enjoys. Confederates or conspirators who unite to do an unlawful act or to do a lawful act in an unlawful way may jointly or severally abandon the project. The law affords them the locus poenitentiae. If, however, the object of the con- spiracy is accomplished, its character is not to be determined in view of the consideration that the conspirators might have repented, but with an eye single to the fact that they did not repent. Besides, it is indisputable that the agreements of the association were made to be kept, and not to be broken. Good faith between the members, not to mention a powerful compul- sory force behind them, obliged that the agreements be kept, and the fact is, as the commission finds, they were kept." It is true that the commission has no authority to execute the Sherman Anti-Trust Law and cannot penalize carriers who may violate it, but the commission can and should, when con- sidering the difficult question of what is a reasonable rate, look to the causes that produced the rate and the method adopted in putting it in effect. Congress has been repeatedly importuned to permit interstate! carriers to combine, and has so far refused to amend the Sherman Anti-Trust Law in that respect. That 114 ]\riisT BE Reasonable. [§ 55. the law applies to carriers, and that any contract or combina- tion in restraint of trade between the states violates the act has been detinitely settled in the Trans-^NIissonri Freight and Joint Traffic Association Cases cited, supra, in the opinion of Judge Speer. AVhether or not Congress should amend the Sherman Anti-Tmst Act presents a question not within the scope of this discussion. It is probably true that freight associa- tions are necessary to the proper conduct of the great business of carriers, and that there should be some modification of the law with reference to such associations. Such modifications, if made, should protect the interests of the public as well ais that of the carriers, and rates made by such associations should, in some manner, be investigated and foimd reasonable before be- coming effective. Of course, if a rate is reasonable, although made as the result of concert of action, it cannot, for that rea- son alone, be condemned by the commission.*^ Mr. Commissioner Prouty, in Re Class and Commodity Rates from St. Louis to Texas Common Points. 11 I. C. C. R. 238, 269, 270. discusses this question as follows : "The theory of this country in respect to interstate rates in the past has apparently been that competition between various railroads would, if it could be secured, produce reasonable freight rates in the same way that competition tends to produce a reasonable price of commodities in general. This was the idea expressed in the enactment of the 5th section of the act to regu- late commerce in 1887 which prohibits pooling. It was also the purpose of the Sherman Anti-Trust Act of 1890 which forbids all agreements in restraint of interstate commerce, and as in- terpreted by the Supreme Court of the United States, all agree- ments between carriers as to the rate of freight applied to in- terstate shipments. The idea has received the sanction of ju- dicial interpretation and the approval of judicial dicta. It is impossible to read the utterances of the Supreme Court in the Trans-Missouri Case and the Joint Traffic Association Case with- out the conviction that a majority of that tribunal were of the opinion not onty that competition could be relied upon to regu- *" China & Japan Trading Co. v. R. 451, 456 ; Board of Bristol, Ga. R. Co., 12 I. C. C. E. 236, 241, Tenn., v. Virginia & S. W. Ry. Co., and cases there cited. Enterprise 15 I. C. C. E. 453. Mfg. Co. V. Ga. E. Co., 12 I. C. C. § 55.] Charges by Common Carriers 115 late freight rates but that it was the safest and best means to that end. ''We think, therefore, that it must be held upon this record that these rates which were in force previous to IMarch 15, 1903, were sufficiently high. We further think that in a case like this, where the former rates have been long in effect, and where the advance has been made by concerted action the justification should be clear." Competition never raises rates, and, therefore, the effect of competition on the question of what is a reasonable rate has not been frequently considered. The effect of competition is important, as will be seen in chapter three post when the com- mission or the courts are called upon to determine whether or not a particular rate is discriminatory. In comparisons a rate created by competition may be considered reasonably low, and frequently the commission has refused to reduce a noncom- petitive rate to a ton mile basis equal to that of a highly competi- tive rate. This is just to the carriers because competition, espe- cially water or market competition, will force a carrier to trans- port to a particular point at a very small margin of profit. The carrier is permitted to meet competition, provided that in doing so, it does not transport at a loss. Market competition fre- quently may require a carrier to transport goods a long distance at a comparatively low rate. So long as any profit is made by such transportation, it benefits not only the carrier but all ship- pers that such transportation should be accepted. And it would be unjust to the carrier to make this kind of traffic a basis for all rates. Kirkman, speaking of this kind of competition, says : " "Competition is a potent factor in determining rates, and is general in the case of railroads. Thus the facility and cheap- ness with which wheat may be moved from India to Liverpool affect the rate on wheat in every quarter of the globe. They also affect the rates on substitutes therefor, such as rye, barley, and so on. In so far as this is so, it is apparent that competition is only partially dependent upon the presence of neighboring lines or otlicr local influences. Local competition, while valuable, is not enough to enforce equitable conditions. It must be sup- plemented by the competitive markets of the world, including the diversified carriage of mankind by land and water. Rich- *" Science of Railways, vol. 8, pp. 8 and 9. 116 MrsT BK Reasonable. [§ 55. ness of soil, facilities of production, the price of labor and rates of local carriers from points of production to places of general consumption influence the charges of other carriers in every quarter of the globe. It is no exaggeration to say that sources of competition among carriers are as numerous as the divergent interests of trade. Because of this they are self-regulative. Their errors of judgment and sins of omission and commission are self-corrective. ' ' This quotation would not be accurate if applied to competi- tion generally; it does correctly describe market competition. Water competition, where it exists, affects rates in a way similar to that of market competition. The carriers have suppressed water competition in some cases and use it in others to defend some particular practice. This competition is discussed by ]Mr. Commissioner Prouty as follows : ^° "Without doubt water competition is made to do most heroic service in many portions of the United States in justifying anomalies in the freight rate, but we are constrained to be- lieve that this competition between the Atlantic and Pacific Oceans is not a thing of the imagination, but r^ither of intense reality with which these rail carriers must deal. "When the rail lines first reached the Pacific Coast all mer- chandise was brought in by water; at the end of several years the greater portion of it still came bj^ that means. AA^hile both the tonnage and the proportion have been largely reduced since, there has been no time when the ocean was not an important factor in determining the rate from New York to San Francisco. Nothing gives stronger evidence of the present vitality of that competition than the fact that men familiar with the situation have been to an enormous expense in providing tonnage for this service which is more than three times the amomit carried in recent years. From the day the transcontinental railroad touched the Pacific Ocean its struggle has been to divert busi- ness from sail to rail; and with steamships already in service and the canal in immediate prospect it is certain that this struggle has not ended. "In 1869, when the Central Pacific and Union Pacific began business, goods used in California were mainly manufactured "Business Men's League of St. Ey. Co., 9 I. C. C. E. 318, 359, ;360. Louis V. Atchison, Topeka & S. F. § 56.] Charges by Common Carriers 117 upon the Atlantic seaboard. In order to secure the transporta- tion of these goods the rail lines found it necessary to make a rate, not as low in cents per hundred pounds, but of as great value, all things considered, as the water rate. Most rates be- tween New York and San Francisco have ever since been and still are established on this basis. It is idle to say that when wrought iron pipe, for instance, can be transported from coast to coast by water for 35 cents per hundred pounds, rail carriers can maintain a carload rate much above the 75 cents now in force." Rail competition has been practically extinguished in so far as it affects rates.''" There is a carrier competition in service. This competition Kirkman described as follows:" "Competi- tion between local carriers is beneficial in many ways aside from its effect and uses. It insures better facilities, superior ware- houses, yards and grounds, adequate equipment and suitable pro\asion for the convenience, safety and comfort of the travel- ing public." § 56. Rates affected by amomit of tonnage. — The commission has expressed this principle in clear language. "The business of the defendants (the carriers), not only in lumber, but in traffic in general, has gro^^oi and is growing largely, and in view of the fact, that they derive their franchises, or right to exist, from the public, the lumber shippers as part of the public might plausibly, to say the least, claim that they have a right to par- ticipate in the prosperity of the defendants by having their rates reduced rather than advanced. The general rule is, the greater the tonnage of an article transported, the lower should be the rate. No rule is more firmly grounded in reason or more universally recognized by carriers. It is because of the greater density of traffic north of the Ohio River in Central Freight Association territory and in the eastern territory^ that rates in general are made materially lower in those territories than in the southern territory.'^ This principle is stated by ]Mr. Com- missioner Clements, in Farrar v. So. Ry. Co., 11 I. C. C. R. 632, 637, where he says : ^^'Tift Y. So. Ey. Co., 1.38 Fed. == Tift v. So. Ey. Co., 10 I. C. C. 7.53. R. 548, 583. " Science of Railways, vol. 8, pp. 10, 11. 118 Must be Reasonable. [§ 56. "In regions of lumber supply the amount of this class of freight offered for transportation is very large and the ship- ments continuous and regular. The tonnage is of vast im- portance to the carriers, affording them a principal source of revenue. The immense volume alone of traffic is an argument for not only reasonable but comparatively low rates, and these in turn are necessary to the exploitation of the lumber industry in new fields that partakes of the character of pioneer develop- ment. ' ' A clearer discussion of the question can not be given than by quoting INIr. Commissioner Prouty, who says : '^ "It is well understood that freight rates should decline as a coimtrj^ developes and as business, therefore increases. Rates are and have been lower in the very densely populated portions of our coimtry than in those parts where population is less dense; and this is because with the increase of traffic comes in- creased profit from the handling of that traffic. Now there is no portion of the United States which in the last fifteen years has increased to a more marked degree in population, there are few sections of our country in which greater development has occurred than here. "Within that time a great volume of export business has been directed over the lines of these respondents to Galveston and importations have begun to flow through that port. The increase in tonnage has been enormous and we have noted the economies which have been introduced into the hand- ling of that tonnage. "It was urged that the improvements required for these econ- omies, the reduction of grades, the laying of heavier rail, the purchase of modern equipment, had necessitated vast outlays of money and that this was a valid reason for the advance in rates. Undoubtedly the making of these improvements has re- quired the expenditure of large sums; in many cases it has amounted to a virtual reconstruction of the railroad and to a practical change of its equipment. This added expenditure must be considered in determining the reasonableness of these rates, but does not justify an advance in rates. "\Yhat has been the purpose of these improvements? Certainly to decrease the cost of operation, to handle freight and passengers at less ex- " Be Clags and Commodity Eates from St. Louis to Texas Common Points, 11 I. C. C. R. 238, 273, 274. § 57.] Charges by Common Carriers 119 pense than tliey could be handled in the former way. It is a strange logic which imposes npon the public a higher rate while insuring to the carrier a lower cost of operation. The actual making of these improvements may have added not only to the expense of operation but may have detracted from the efficiency of operation. The prosecution of the necessary work has inter- fered with the movement of traffic and thereby added to the cost of this movement. But all this is temporary and com- paratively insignificant and should not be made an excuse for a permanent advance in rates. "It is urged that the increased volume of traffic has necessi- tated these outlays; that otherwise the business could not be handled. And that is probably true; but increase of traffic, while it may produce temporary embarrassment, should reduce, not advance, rates." The rule is reasonable and just, but may not be applied too far. A traffic official of one of the defendants in the case of A. P. Morgan Grain Co. v. Atlantic Coast Line R. Co., not yet decided by the commission, testified that the amount of traffic offered in 1907 was so large as to pass the "economic maximum," and, therefore, the carriers not having sufficient equipment, the cost of handling the traffic was relatively higher than if less traffic had been offered. This may be true, and when true, while furnishing no reason why the carrier should increase rates based upon its inability to economically meet its obligations to the shippers, it would not be just to require the application of the rule that the greater the traffic the less relatively should be the rate. Though if the condition of more traffic than could be economically handled should be a permanent one, it would be the duty of the carrier to provide adequate facilities therefor. The effect of "this added expenditure" is discussed in the quo- tation supra from the opinion of IMr. Commissioner Prouty. § 57. Distance and rate per ton mile. — Judge Cooley, then chairman of the commission, in a head note states this rule:''' "As a rule in the transportation of freight by railroads, while the aggregate charge is continually increasing the further the freight is carried, the rate per ton mile is constantly growing less all the time, making the aggregate charge less in propor- "Farrar v. East Tcnn., Va. & Ca. Ky. Co., 1 T. C. C. R. 480, 1 I. C. R. 764. 120 Mr:sT be Reasonable. [§ 58. tion every hundred miles after the first, arising out of the character and nature of the service performed and the cost of the service ; and thus staple commodities and merchandise are enahled to bear the charges of this mode of transportation from and to the most distant portions of the country." Judge Cooley also points out that this rule is not only not abrogated but is sanctioned by the act to regulate commerce. The general rule has been applied by the commission in other cases.'^ The rule is, however, subject to exceptions,''" and when comparing rates, "the rate per ton mile is not always the measure of a reasonable rate, and, rightly applied, would make distance alone the gauge for transportation charges, but it is always valuable as affording a basis of comparison for relative rate burdens." ]\Ir. Com- missioner Prouty says, "The rate per ton mile, while often in- structive, is not by any means a fair index of a reasonable rate. ' ' °^ While the rate per ton mile should, and usually does, decrease as distance increases, the rate per ton mile on one road is not necessarily a safe guide in fixing a rate on another road operating under different conditions. § 58. General business conditions. — How far may rates be af- fected by the business situation of the coimtry and the shippers has been the subject of consideration in several cases. It will be admitted that the fact, when such fact exists, that a shipper has a ready market for his goods at a good price, affects the value of the service to the shipper and may be considered in determining what, in a particular case, is a reasonable rate. It is also true that prosperous times may and generally do in- crease the price of both labor and equipment necessary for the carrier to operate, thus affecting "the cost of service," and con- sequently furnishing a fact that is an element among the many considerations entering into a determination of what is the proper rate to be charged for transportation. But the mere fact of general prosperity, or of general depression, will not ■"Business Men's Asso. v. Chi- '^"Manufacturers' and Jobbers' cago, St. P., M. & O. E. Co., 2 I. Union v. Minneapolis & St. L. Ry. C. C. E. 52, 2 I. C. E. 41; Business Co., 4 I. C. C. E. 79, 3 I. C. R. 115. Men's Asso. v. Chicago & N. W. =*' Farrar v. So. Ey. Co., 11 I. C. Ry. Co., 2 I. C. C. E. 73, 2 I. C. E. C. R. 640, 649. 48, 52 ; Gustin v. Atchison, T. & S. °^ Re Proposed Advances in F. Ey. Co., 8 I. C. C. E. 277, 288. Freight Bates, 9 I. C. C. E. 383, 396. § 58.] Charges by Common Carriers 121 justify a carrier in absorbing the one or shifting the other on the shipper. "Transportation by rail is a service of a quasi public nature, not to be sold to the highest bidder, nor subject to the law of supply and demand."^" "The claim" that the carriers may absorb all or part of the prosperity of the shipper says Mr. Commissioner Clements "is based upon the erroneous assumption, so prevalent among traffic managers, that a rate may be made as high as 'the traffic will bear.' " "" When rates have been reduced because it was necessary to meet conditions caused by depressed financial conditions, such rates may be ad- vanced in prosperous times to the point where they are reason- able. Mr. Commissioner Prouty, in the able discussion of the principles of rate making already quoted from, says:"' "No reduction in these rates has been made in the past for the purpose of stimulating the movement of this traffic. The amount of these advances is so slight as compared with the selling price of the article transported that they produce no ef- fect whatever upon the volume of the traffic. Now with respect to a rate of this kind we do not think an increase in the price of the article transported justifies of itself an increase in the freight rate. These rates were not reduced when the prices fell; why should they be advanced when prices rise? An in- cident wdiich occurred in this very case strongly emphasizes the absurdity of the claim. ' ' Cotton is an important item of traffic upon the International & Great Northern Eailroad, one of these respondents. It is well known that the ravages of the boll weevil have seriously af- fected the cotton crop in certain parts of Texas. The attorney for the International & Great Northern, himself, a former rail- road commissioner of Texas and a thoughtful student of this sub- ject, gave as a reason for the advances in question in which his line participates, that owing to the boll weevil the cotton crop upon a large part of his road was a failure, and that this re- duced the amount of cotton for transportation ; that in conse- ''"Ke Proposed Advances in E. 548, 582; Central Yellow Piue Freight Eates, 9 I. C. C. E, 382, Asso. v. 111. Cent. E. Co., 10 I. C. C. 405. See also Freight Bureau of E. 505. Cincinnati v. Cincinnati, N. O. & <^ Ee Class and Commodity Bates T. P. Ey. Co., 6 I. C. C. E. 195, from St. Louis to Texas Common 4 I. C. E. 592, 617. Points, 11 I. C. C. E. 238, 272, 273. •"Tift V. So. Ey. Co., 10 I. C. C. 122 Must be Reasonable. [§ 59. quence of the failure of this important crop the whole coun- try was impoverished and was able to purchase less, which also contributed to reduce the income of his railroad. For these reasons it had become necessary to advance rates in order to obtain sufficient revenue "uith which to operate the road and pay a fair return upon the investment. Here, therefore, we have in the same case and by parties of the same general system a claim upon the one hand that these advances are justified by general conditions of prosperity and upon the other hand that they are justified by general conditions of adversity. "Railroads should share in the general prosperity. They should do this partly by being able to advance those rates which have declined under commercial conditions. They should do it still more by the increased traffic which they obtain. In times of prosperity when money is plenty and business good people ride more, buy more, new industries are being established and old industries are active, traffic increases and out of such in- creased traffic the railway obtains, by automatic action so to speak, without anj' advance in its rate a large share in the general prosperity." The opinions of Commissioners Clements and Prouty, supra, are in accord. The carrier may not absorb the prosperity of the shipper, but when prosperity exists the carriers may restore rates "that have declined luider commercial conditions." If the prosperity of the countrv- adds to the density of the traffic, it might, in some cases, furnish a reason for reductions in rates. § 59. Rates long in existence are presumed to be reasonable. — "VMien conditions have not materially changed, it is consistent with the motives that usually actuate mankind to presume that a rate long in existence is reasonable and that the burden of proof is on him who seeks to obtain or justify an other and higher rate. As early as 1889 the conmiission, speaking of a rate sought to be changed by a carrier, said: "It has, without the pressure of competition other than on equal terms, long continued this rate and as long been making evidence that this nineteen-cent rate is not imreasonably low. "°' The principle was again aiinonneed in the Food Products Case ^ and in Proc- *^ Logan et al., Com. of North- ""Ee Alleged Excessive Freight ■western Grain Asso. v. Chicago & N. Rates on Food Products, 4 I. C. C. W. R. Co., 2 I. C. C. E. 604, 2 I. E. 48, 3 I. C. E. 93. C. E. 431, 434. § 59.] Charges by Common Carriers 123 tor V. Cincinnati, H. & D. R. Co.^ Mr. Commissioner Prouty, in Holmes v. Southern Ry. Co.,*"* annoimced the rule in this lan- guage: ''The continuance of a given rate is not conclusive evi- dence of the reasonableness of that rate, but when a railway com- pany advances a rate "^^hich has been for some time in force, the fact of its continuance is in the nature of an admission against that company, which tends to show the unreasonableness of the advance ; and the force of this admission becomes great in view of the general decline in the average of railway rates and the lessened cost of service." The general rule is recognized, but found not applicable to the facts in Proctor v. Cincinnati, H. & D. R. Co."* In the Central Yellow Pine Asso. Case "' the com- mission said: "When carriers advance a rate which has been for some time in force, the burden of proof is iipon them to show sufficient grounds for such advance. ' ' In the Tift Case "* this language was used: ''The maintenance of materially lower rates for such long periods of time brings this case within the rule that 'when an advance is made in rates which have long been maintained and the evidence shows that the traffic affected is large, important and constantly increasing, the advance will be held unjust unless it is satisfactorily explained.' " Each of these cases was tried in the circuit courts and reached the Su- preme Court where both were affirmed."'' In the Yellow Pine Case the Supreme Court said : ' ' The question submitted to the commission ******* was one which turned on matters of fact. In that question, of course, there were elements of law, but we can not see that any one of these or any circumstances probative of the conclusion was overlooked or disregarded." It was stated by the Supreme Court that the Tift Case, supra, de- pended "upon the same legal considerations," as the Yellow Pine Case. The Supreme Court, in the case of Int. Com. Com. •* 4 I. C. C. E. 87, 3 I. C. R. 131. " Central Yellow Pine Asso. v. ""8 I. C. C. R. 561, 568. 111. Cent. R. Co., 10 I. C. C. R. 505. ««9 I. C. C. R. 440. For further •« Tift v. So. Ry. Co., 10 I. C. C. history of this case, see Int. Com. R. 548. Com. V. Cincinnati, H. & D. R. Co., "" Tift v. So. Ry. Co., 138 Fed. 146 Fed. 550; Cincinnati, H. & D. 753; So. Ry. Co. v. Tift, 148 Fed. R. Co. V. Int. Com. Com., 206 U. S. 1021, 206 U. S. 428, 51 L. Ed. 1124, 142, 51 L. Ed. 995, 27 Sup. Ct. 648, 27 Sup. Ct. 709; 111. Cent. R. Co. v. enforcing order of the commission. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. 124 Must be Reasoxahle. [§ 60. V, Chicago G. W. Ey. Co.,™ without referring to the Tift or Yellow Pine Case, said : "It nnist also be remembered that there is no presumption of wrong arising from a change of rate by a carrier. *********** Undoubtedly when rates are changed the carrier making the change must, when properly called upon, be able to give a good reason therefor, but the mere fact that a rate has been raised carries with it no presumption that it was not rightfully done." These decisions of the Su- preme Court are harmonious. The fact that a "good reason" must be given by the carrier is equivalent to saying that, "the advance will be held unjust unless it is 'satisfactorily explain- ed,' that is, unless a 'good reason' therefor is given." i\Ir. Com- missioner Clements '' discusses these cases, and, after quoting from the decision of the Supreme Court in the Great Western Ry. Case, says, "This is a mere affirmance of what the act to regulate commerce itself recognizes as a right of the carriers, viz., the right to initiate rates. And it must be apparent that were a 'presumption of wrong' to attach to any change in rates which the carriers are authorized to establish, this must result in a denial of the free exercise of the right guaranteed by the act. But it would be going far to say that the language above quoted is authority for the inference that the Supreme Court does not still recognize the principle that a rate which has been in force for a long period of years and with respect to which commercial conditions have been adjusted, which rate has pre- sumably afforded a reasonable return to the carrier, may not be materially advanced without imposing upon the carriers the burden of justifying the increase." § 60. Grouping- territory and giving each group same rate legal under some circumstances. — It has been and is yet a prac- tice with carriers to group contiguous territory and give the same rate to all points within a particular group. The com- mission in 1888, speaking of this practice, said : '" "•209 U. S. 108, 119, 52 L. Ed. '^ LeCrosse Manufacturers' & 70.5, 512, 713. .Jobbers' Union v. Chicago, M. & St. "Pacific Coast Lumber Mfrg's. P. E. Co., 1 I. C. C. E. 629, 631, 2 Asso. V. N. Pac. Ey. Co., 14 I. C. I. C. E. 9, 10. See also Business C. R. 23, 38; see also Ee Class and Men's Asso. of Minnesota v. CM- Commodity Eates from St. Louis to cago, St. P., M. & O. Ey. Co., 2 I. Texas Common Points, 11 L C. C. C. C. E. 12, 52, 2 I. C. E. 41, 46; E. 238. Lippman & Co. v. 111. Cent. E. Co., § 61.] Charges by Common Carriers 125 "This is a practice which prevails very largely in the making of rates and results in giving to some to^ns rates which are relatively lower than are charged to others. It is probably a convenient practice to the railroad companies or it would not be so often adopted ; and it may sometimes tend to equalize rail- road advantages as between towns without wronging any one. The system is not necessarily illegal, it only becomes illegal when it can be sho"v\Ti that illegal results flow from it." The practice is not approved by the commission, however, when "the difference in the transportation expense from the various parts of such district is considerable and substantial."^* Texas is arranged in groups for rate-making purposes, and when the parties to the case are satisfied with the system, the commission will not disturb it.'* § 61. Basing point system. — ^What this system is and the at- titude of the commission thereto cannot be better stated than by using the language of the commission itself. In Board of Trade of Plampton v. Nashville, Chattanooga & St. L. K. Co.,'' it is said by Mr. Commissioner Clements : "As stated in our findings of fact, through rates made in this way — that is, composed of rates to ''basing points" and local rates back — are in pursuance of what is known as the "basing- point" system of rate-making, which, according to the evidence of the witness (Cutler), prevails "throughout the southern ter- ritory. This system has been heretofore several times discussed and disapproved by the commission. Re Louisville & N. R. Co., 1 I. C. C. Rep. 84, 85, 1 Inters. Com. Rep. 278 ; IMartin v. Chi- cago, B. & Q. R. Co., 2 I. C. C. Rep. 25, 46, 47, 2 Inters. Com. Rep. 32 ; Re Tariffs and Classifications of A. & W. P. R. Co. 3 I. C. C. Rep. 19, 24, 25, 46-49, 2 Inters. Com. Rep. 461. "Under this system, where the haul is through the basing point to a point bej^ond, the rate to the latter is the through rate to the basing point plus the local rate from the basing point 2 T. C. C. E. 584, 2 I. C. E. 414; Merchants' Union of Spokane Falls Howell V. New York, L. E. & W. v. N. Pae. E. Co., 5 I. C. C. E. 478, E. Co., 2 I. C. C. E. 272, 2 I. C. 4 T. C. E. 183- Eea v. Mobile & O. E. 162; Imperial Coal Co. v. Pitts- E. Co., 7 I. C. C. E. 4.3. burg & L. E. E. Co., 2 I. C. C. E. '* Farmers, Merchants & Shippers 618, 2 T. C. E. 436. flub v. Atchison, T. & S. F. Ey. ''Newland v. N. Pac. E. Co., 6 I. Co., 12 T. C. C. E. S.^l, 36-5. C. C. E. 131, 4 I. C. E. 474, 480; "8 T. C. C. E. 503, 520, 521, 522. 126 :\Ii-sT HE Rkasoxable. [§ 61. on, and where, as in the present case, the haul is to an inter- mediate point, tlie rate to the intermediate point is the rate for the haul through such intermediate point to the basing point pins the local rate back over the same line. In the former case, the haul is not treated as a continnons haul through the basing point to the point beyond, but as two distinct hauls; one a through haul to the basing point, and the other a local haul from the basing point to the point beyond; and in the latter case, not as a through haul to the intermediate point, but as a haul through the intcrmediato point to the basing point beyond plus a local haul back. Local hauls, as is well Icnown, are much more expensive to the carrier per mile than long through hauls, or any proportion of such through hauls. Therefore local rates are properly made much higher for the same distance than through rates, and hence the charge of a local rate for a part of a through haul, when the extra expense of a local haul has not been incurred, is prima facie excessive. Augusta Southern ^.. Co. v. Wrightsville & T. R. Co., 74 Fed. Rep. 522. "It is a significant fact that the result of this system of rate- making is to enable the basing-point merchants to compete with the local merchants of surrounding localities at their own doors on ecjual terms, while the latter are debarred from such compe- tition with the former, and as to territory intermediate be- tween the basing points and surrounding localities, merchants at the basing points are given such an advantage in rates as to enable them to undersell merchants at surrounding localities, and drive them out of the "jobbing business" in such inter- mediate territory as the testimony shows has been the result in the present case. The direct tendency and almost invariable outcome of the system is that basing points are built up and flourish at the expense of surrounding localities. The building up of one locality at the expense of another, by rates favoring the former and discriminating against the latter, was undoubt- edly one of the principal evils which the act to regulate com- merce was designed to remedy, and it would seem that due allow- ance might and should be made for the effect of competition without defeating the object of the law. What are termed com- petitive points may be given rates relatively, or even absolute^, lower than the rates to shorter-distance points, without making the rates to the latter the rates to the former plus the exact local back. There is grave reason for the conclusion that the § 62.] "Cpiarges by Common Carriers 127 object of the carriers in charging as a part of the through rate the local between the basing point and surrounding localities is to accomplish the natural result of this system of rate-making, and that competition is used as a pretext or justification when it does not in fact necessitate such a state of things." § 62. Comparisons between different lines as a means of de- termining correct rate. — It is competent to compare rates, dis- tances and general conditions on one road with those on an- other when considering the adjustment of rates, but in connec- tion therewith all other factors that enter into the cpiestion of what constitutes a reasonable rate must also be considered.'" Rates should be relatively as well as absolutely reasonable, and a locality not widely dissimilar from another is prima facie en- titled to the same rate." When the circumstances and condi- tions are substantially dissimilar, comparisons of rates are valueless." Comparisons of "transportation rates in force on lines of rival companies or on different branches or lines of the same company have a bearing upon and are entitled to consid- eration in connection with the cjuestion of reasonable charges for transportation services rendered under like conditions. ' ' '" And as said by -IMr. Commissioner Harlan : '"' "But while the revenue per ton per mile over other routes on other lines and to other destinations is often suggestive in ar- riving at a proper estimate of the reasonableness of a rate over a route complained of, it is by no means conclusive. Varying conditions existing on different lines must of necessity justify differences in rates for hauls of the same distance. The real question in any such complaint is the reasonableness of the par- ticular rate on the particular line between the points in ques- '» Cannon v. Mobile & O. E. Co., Pac. E. Co., 6 I. C. C. E. 520; Mar 11 I. C. C. E. 537, 543 ; Lincoln tin v. Louisville & N. E. Co., 9 I. C Creamery Co. v. Union Pac. E. Co., C. E. 581, 597. 5 L C. C. E. 156, 3 I. C. E. 794 ; '" Morrell v. Union Pacific E. Co. Ee Tariffs of Transcontinental 6 L C. C. E. 121, 4 I. C. E. 469 Lines, 2 I. C. C. E. 324, 2 L C. E. See discussion of question in 203. Freight Bureau of Cincinnati v "Manufacturers' and Jobbers' Cincinnati, N. O. & T. P. Ey. Co. Union v. Minneapolis & St. L. E. 6 I. C. C. E. 195, 4 I. C. E. 592 Co., 4 L C. C. E. 79, 3 L C. E. 115. 010, 611. '* Business Men's Asso. v. Clii- ^" Dcscl-Boottclior Co. v. Kansas cago & N. W. E. Co., 2 L C. C. E. City S. Ey. Co., 12 I. C. C. E. 220, 73, 2 L C. E, 58; Evans v. Union 226. 128 ]\rusT BE Reasonable. ' [§63. tion. In testing: such a rate the rates on the same or adjacent lines in the inmiediate territory where the same conditions exist are of much greater significance and afford a much more accu- rate basis for our action." A mere comparison of the rates attacked with rates in other parts of the country is not sufficient evidence upon which the commission may condemn a rate.*' § 63. Car load and less than car load movements as affecting the rate. — It has been hereinbefore shown that cost and value of service both enter into the question of what constitutes a reasonable rate. ' ' The hazard involved ' ' "" must also be con- sidered in determining that question. It is undisputed that it costs more per hundred pounds to haul freight in less than car loads than it costs to haul the same freight in car load quan- tities. Among other reasons, this is true because the shipper loads and the receiver or consignee unloads car load shipments, while the carrier loads and unloads articles shipped in less than car loads. Usually a car load shipment is sealed by the con- signor and unsealed by the consignee, and in the absence of the seals, showing that it has been tampered with, or the car being in any way defective, there can be no such thing as a concealed loss chargeable to the carrier. The clerical expense of billing and the expense of delivering is much less in car load than in less than car load shipments, and the loss and damage on less than car load shipments is greater than on car load movements. This principle is recognized by the commission. In Thurber v. New York C. & 11. R. R. Co.'' the commission said: ''It is a sound rale for carriers to adapt their classifications to the laws of trade. If any article moves in sufficient volume, and the de- mands of commerce will be better served, it is reasonable to give it a car load classification and rate. The car load is probably the only practicable unit of quanity. " "While the principle of a difference between car load and less than car load shipments is recognized by the commission, and while to prevent discrimina- tion, it could prescribe such a differential, that tribunal is dis- «^ Dallas Freight Bureau v. Mo., ^3 T. C. C. E. 473, 2 I. C. E. Kan. & Tex. By. Co., 12 I. C. C. E. 742, 7.32. See also Harvard v. 427, 4.32, 43.3, and cases cited at p. Pennsylvania Company, 4 I. C. C. 433. E. 212, 3 I. C. E. 257. *- Kindel v. Adams Express Co., 13 I. C. C. E. 47.5, 485. § 63.] Charges by Common Carriers 129 inclined to exercise such power. Mr. Commissioner Clements, voicing the opinion of the commission, said : ^ ''The commission has held that differentiation by the carriers of carloads from less than carloads in the application of rates may be warranted under certain conditions. Here, however, we are asked to enter an affirmative order establishing a differential. What would be the effect upon all the business interests involved in this traffic should the commission take such action 1 No doubt its effect upon the jobbers at southeastern points would be bene- ficial; traffic would move into the southeast in such manner as to give the longest possible haul in carloads to the local dealers, who, securing these long haul carload rates, would be the ben- eficiaries. Other classes who would be affected by the change would be the small dealers and consumers, and it appears that the necessary operation of such a change would be to cut off these classes from purchasing in small quantities at Nashville and Ohio River points and compel them to deal with jobbers in their immediate vicinity, who would purchase in large enough quantities to secure the benefits of the lower rates on the long carload haul from the Ohio River and Nashville. The entire record points to the fact that a differential on this traffic would have the effect of enhancing the price of those products to the consumer. ******** "A railroad can not be compelled, as prayed in this case, or even permitted to adopt a system of rate making which enables a large dealer to drive a smaller dealer out of the market. We must have some other motive upon which to act in a matter of this kind than that the trade of a particular community is a vested right belonging to any particular class in that community. We are not permitted so to narrow our view of all the inter- ests involved as to look only to the interests of a particular class in the community, and this for the sole purpose of vesting in that class what they claim to be their inherent rights, more es- pecially when the enjoyment thereof is to be at the expense of the community at large." With great deference to the learned lawyer and experienced eonmiissioner who wrote the opinion in the Duncan Case, it is submitted that he failed to give due effect to the rule of cost of «^ Duncan v. Nashville, C. & St. 594, 595. L. Ey. Co., 16 I. C. C. R. 590, 593, 130 ]\rusT BE Reasonable. [§ 63. service. It does not necessarily follow tlint a higher rate on less than ear loads increases the price to the consumer, and if it did, it does not necessarily follow that one man should re- ceive for his money a greater service than another receives for the same amount of money. Carriers must ordinarily receive from the total of all commodities transported by them enough to pay all operating expenses and a fair return on the invest- ment. If fifty per cent, of these commodities are transported in less than car load lots, it is fair to say that sixty per cent, of the cost of all transportation is caused by this moiety and forty per cent, by the half transported in car lots. But while the car load shipper costs the carrier only forty per cent, of the transportation charge, he pays fifty per cent, thereof. If the car load shipper paid only the forty per cent, he should pay and the less than car load shipper should pay his sixty per cent., the total transportation charges paid by the consumer would be the same that he pays when there is no differential and there would be no discrimination. The jobber is sometimes regard- ed as a mere parasite, but this view of his function is incor- rect. He fills an important position in commerce. Without him, or some other equally effective agency, the producer and the consumer could not be gotten together. The Kansas wheat farmer could never market his wheat directly by dealing with the Georgia consumer. There must be one or more intermedi- aries who collect the product and distribute it to the consumer. He who collects the grain at the primary markets of Kansas City, St. Louis, Omaha, Chicago, and perhaps other cities, the jobber at Nashville, Atlanta and other cities and the retail dealer who sells direct to the consumer, each performs a neces- sary service in enabling the producer to sell and the consumer to buy. When a producer controls all, or a large part, of a com- modity, he may himself perform all these intermediary services, but such services must be performed by some agency. The agen- cies performing this necessary service will be compelled by the laws of trade not to charge more than is reasonable for the ser- vice. It is not a question of a large dealer driving out the small dealer, but a question of those intermediaries paying for only what service they obtain from the carriers. The total transpor- tation charges which the consumer pays are not increased, but these charges are equitably distributed. The justice of a car load and less than car load differential is shown by the general § 64.] Charges by Common Carriers 131 application by the carriers tliemselves of such differential. The ''differential, like the rate itself, should be fixed with a view to the just interests of all parties concerned. ******* In fixing upon a rate or a rate adjustment a carrier may always properly consider the cost of service, and that factor should have great influence with the commission in passing upon the reason- ableness of the carrier's action. If it actually costs these car- riers less to handle this transcontinental freight in carloads than in less than car loads we ought not in the absence of a con- trolling reason to the contrary, to deny the carrier the right to make a difference in its tariff corresponding to the difference of expense. The defendant carriers have somewhat elaborately es- timated the relative expense of carrying this freight in carloads and less than carloads. The nature of that testimony fully ap- pears in the statement of facts, and need not be repeated. "We have found that it costs transcontinental carriers approximately 50 per cent, more to handle transcontinental traffic in less than car loads than in carloads. The less than car load rate in many of the instances called to our attention by the complainant ex- ceeds the carload rate by somewhat more than 50 per cent., but on the whole we are inclined to think that, on the average, the difference between carloads and less than carloads established by the tariff of June 25, 1898, does not generally, if at all, exceed the actual difference of cost in the service rendered.'"' See also post sections 82 and 83. § 64. Relation of through rates to the total of the local rates. — In December, 1906, the commission adopted and issued to all railroads the following ruling: 43. Reduction of joint rate to equal sum of locals (effective December 21, 1906). Where a joint rate is in effect by a given route, which is higher between any points than the sum of the locals between the same points, by the same or any other route, and such joint rate has been in effect thirty days or longer, such higher joint rate may, until further notice from the commission, be changed by reducing the same to the sura of such locals, but not otherwise, upon posting one day in advance a tariff of such reduced rate and mailing a copy thereof to the commission. Many informal complaints are received in connection with "Business Men's League of St. Co., 9 T. C. C, K. 318, 3158, 359. Louis V. Atcliison, T. & S. F. Ky. 132 iMusT BE Reasonable. [§ 65. regularly established through rates which are in excess of the sum of the locals between the same points. The commission has no authority to change or fix a rate except after full hearing upon formal complaint. It is believed to be proper for the commission to say that, if called upon to formally pass upon a case of this nature, it would be its policy to consider the through rate, which is higher than the sum of the locals between the same points as prima facie unreasonable, and that the burden of proof would be upon the carrier to defend such higher through rate. The foregoing administrative order of the commission fur- nishes a general rule which has been frequently enforced.*" There have been and may be reasons which make the rule inap- plicable.*' § 65. The public interest must be considered in making rates. — A rate made either by a carrier, a legislative or an adminis- trative body must not disregard the interests of the public, and the fact that a particular rate is necessary to enable the carrier to pay interest and dividends will not justify a rate that is un- duly burdensome on the public. The legislature of Kentucky having prescribed the maximum rate to be charged by turnpike roads in that state, the Supreme Court in determining whether or not such act was illegal, said : ^ ''It is proper to say that if the answer had not alleged, in substance, that the tolls prescribed by the act of 1890 were wholly inadequate for keeping the road in proper repair and for earning dividends, we could not say that the act was uncon- stitutional merely because the company (as was alleged and as the demurrer admitted) could not earn more than 4 per cent, on its capital stock. It cannot be said that a corporation oper- ating a public highway is entitled, as of right, and without ref- erence to the interests of the public, to realize a given per cent. upon its capital stock. When the question arises whether the s" Laning-Harris Coal & Grain Co. 597, 41 L. Ed. 560, 566, 567, 17 V. Mo. Pae. Ey. Co., 13 I. C. C. R. Sup. Ct. 198. Quoted and foUowed, 148, 159. Smyth v. Ames, 169 U. S. 466, 545, «' CoffeyviUe Vitrified Brick & 42 L. Ed. 819, 848, 18 Sup. Ct. 418. Tile Co. V. St. Louis & S. F. Ry. See also Minneapolis & St. L. R. Co, Co., 12 I. C. C. R. 498, 499. v. Minnesota, 186 IJ. S. 257, 268, «« Covington & L. Turnpike Road 46 L. Ed. 1151, 1158, 22 Sup. Ct. Co. V. Sandford, 164 U. S. 578, 596, 900. § 66.] Charges by Common Carriers 133 legislature lias exceeded its constitutional power in prescribing rates to be charged by a corporation controlling a public high- way, stockholders are not the only persons whose rights or in- terests are to be considered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are im- reasonable and unjust to the company and its stockholders. But that involves an inquiry as to what is reasonable and just for the public. If the establishing of new lines of transportation should cause a diminution in the number of those who need to use a turnpike road, and, consequently, a diminution in the tolls collected, that is not, in itself, a sufficient reason why the corporation, operating the road, should be allowed to maintain rates that would be unjust to those who must or do use its prop- erty. The public cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends. The legislature has the authority in every case, where its power has not been restrained by contract, to proceed upon the ground that the public may not rightfully be required to submit to unreason- able exactions for the use of a public highway established and maintained under legislative authority. If a corporation cannot maintain such a highway and earn dividends for stockholders, it is a misfortune for it and them which the constitution does not require to be remedied by imposing unjust burdens upon the public. ' ' A particular service may be required of a public carrier, when it is necessary to the public convenience, where the whole ser- vice performed yields a fair compensation, even though such particular service must be furnished at a loss to the carrier.*"* § 66. Through routes and joint rates. — If only the rates on the lines of each carrier considered separately were subject to the regulation of the commission, it would be very difficult to obtain reasonable rates on those commodities that move over two or more lines. For this reason, carriers subject to the act are required to establish through routes and joint rates. Through routes need not be established if there already exists a through route furnishing to the shippers reasonable facilities. Joint rates must be reasonable and the principles relating to rates generally apply as well to these rates. Of the right of ship- «• Atlantic Coast Line R. Co. v. mission, 206 U. S. 1, 51 L. Ed. 933, North Carolina Corporation Com- 27 Sup. Ct. 585. 134: Must be Reasonable. [§ 67. pers to through routes and joint rates !l\Ir. Commissioner Clem- ents says : °° "The law does not require the commission in all eases where no through routes and joint rates exist to establish them, but only empowers it to do so in proper cases with the manifest in- tent of giving effect to the general purposes of the act to regu- late commerce bj^ securing reasonable facilities to the public and preventing unreasonable and unjust rates, practices, and discriminations, and in the exercise of this authority the com- mission is bound by the same considerations of justice and fair- ness as it is in the exercise of the rate-making power in other respects. Where neither the interest of the public, nor the ends of justice as between parties directly interested, will be pro- moted by the establishment of through routes and joint rates and divisions thereof, a proper case for the exercise of the au- thority invoked has not been shown." § 67. General principles applicable to the question, what is a reasonable rate? — Rates must be reasonable, but whether or not a particular rate or a particular schedule of rates is reasonable presents a question difficult of solution. Cites the court in In- terstate Commerce Commission v. Louisville & N. R. Co., 102 Fed. 709, 710: "No more difficult problem can be presented than this." That the problem is difficult all agree, that a scien- tific law of rate making does not exist is also admitted. But commissions and courts must endeavor to solve the problem, and to the solution thereof they have brought the application of certain principles, that must be considered but which can not always be applied. We have already seen that cost and value of service, the risk involved, competition, amount of traffic and dis- tance hauled, business conditions, long maintenance of rates, comparisons between different rates, the method of shipping, whether by the car or in smaller lots, and the interests of the general public are facts and conditions some of which arise in every case and all of which may be presented in some cases. The weight that shall be given to any particular fact depends on many and varying circumstances and must be determined in each particular case. No law of rates can be prescribed, to which there may not be many exceptions. The nearest a scientific law ""Loup Creek Colliery Co. v. Vir- 471, 477. ginian Eailway Co., 12 I. C. C. K. § 67.] Charges by Common Carriers 185 that can be announced is. no rate should exceed the value of the service to the shipper; and no schedule of rates should, within this value, be less than the cost of the service to the carrier ; cost of service including a ''fair return on the property employed in the public use." That charges may not exceed the value of the service is an economic law not depending upon courts or other tribiuials for its enforcement. Neither shippers nor any one else will long continue paying more for a service than it is worth to them. Nor will investors put money in a service for which they receive less than it costs to render the service. It is, therefore, apparent that value of service and cost of service represent the maximum and minimum of rates. It was a maxim of traffic managers that "all the traffic could bear" was the only definite principle applicable to rate making. Kirkman, in the Science of Eailways, vol. 8, at p. 11, says: "In the practical operation of railroads such rates are made as the traffic will bear." If this rule were adopted there would be little difficulty in fixing rates. But it is apparent that such a rule, in view of the fact that transportation companies are affected with a pub- lic use, would be imfair. Mr. Commissioner Clements, in Tift V. So. Ry. Co., 10 I. C. C. R. 548, 582, says: "This claim * * * * * * on the part of the carriers is based upon the erroneous as- sumption, so prevalent among traffic managers, that a rate may be as high as 'the traffic will bear.' " What "the traffic will bear" is, by force of economic law, the maximum. It has been seen that a particular service may, under some circumstances, be required of a common carrier at less than cost, but ordinarily cost of service fixes the minimum rate. It is interesting and in- structive to group what has been said by the courts and the commission with reference to this problem. The Supreme Court, 162 U. S. 197, 40 L. Ed. 940, 5 I. C. Rep. 405, 16 Sup. Ct. 18 Sup. Ct. 418, speaking of the basis of a whole schedule of rates, said: "We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by a corporation main- taining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And, in order to ascertain that value, the original cost of construction, the amount expended in permanent im- provements, the amoiuit and market value of its bonds and stock, the present as compared with the original cost of construction, 136 Must be Reasonable. [§ 67. the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet oper- ating expenses, are all matters for consideration, and are to be given such weight as may ])e just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services ren- dered by it are reasonably worth." But in the same case, the court quotes with approval from Covington & L. Turnpike Co. v. Sandford, 164 U. S. 578, 596, 597, 41 L. Ed. 560, 566, 567, 17 Sup. Ct. 198, the following: "It cannot be said that a corporation is entitled, as of right, and without reference to the interests of the public, to realize a given per cent, upon its capital stock. When the question arises whether the legislature has exceeded its constitutional power in prescribing rates to be charged by a corporation con- trolling a public highway, stockholders are not the only per- sons whose rights or interests are to be considered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are unreasonable and unjust to the company and its stockholders. But that involves an inquiry as to what is rea- sonable and just for the public. The public cannot properly be subjected to unreasonable rates in order simply that the stock- holders may earn dividends. The legislature has the authority, in every case where its power has not been restrained by eon- tract, to proceed upon the ground that the public may not right- fully be recpiired to submit to unreasonable exactions for the use of a public highway established and maintained under leg- islative authority. If a corporation cannot maintain such a highway and earn dividends for its stockholders, it is a misfor- tune for it and them which the constitution does not require to be remedied by imposing unjust burdens upon the public. So that the right of the public to use the defendant's turnpike upon payment of such tolls as in view of the nature and value of the service rendered by the company are reasonable is an ele- ment in the general inquiry whether the rates established by law are unjust and unreasonable." In speaking of the factors to be considered in rate making in § 67.] Charges by Common Carriers 137 Int. Com. Com. v. Chicago G. W. Ky. Co., 141 Fed. 1003, 1015, 1016, Judge Bethea, citing authorities, says: • "A careful examination of the opinions of that court (as well as the evidence taken in these cases) shows that there are a great many factors and circumstances to be considered in fix- ing a rate. Noyes, Am. R. R. Rates, pp. 61 et. seq., 85-109. Among other things: (1) The value of the service to the ship- per, including the value of the goods and the profit he could make out of them by shipment. This is considered an ideal method, when not interfered with by competition or other fac- tors. It includes the theory so strenuously contended for by petitioners, the commission, and its attorneys, of making the finished product carry a higher rate than the raw material. This method is considered practical, and is based on an idea similar to taxation. Interstate Commerce Commission v. B. & 0. Ry. Co. (C. C.) 43 Fed. 37, 53; Noyes, Am. R. R. Rates, 53. (2) The cost of service to the carrier would be an ideal theory, but it is not practical. Such cost can be reached approximately, but not accurately enough to make this factor controlling. It is worthy of consideration, however. Interstate Commerce Com- mission V. Baltimore & 0. Ry. Co., 43 Fed. 37, 3 I. C. R. 192 ; Ransome v. Eastern Counties Railway Company (1857) I. C. B. N. S. 437, 26 L. J. C. P. 91 ; Judson on Interstate Commerce, §§ 148, 149; Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; Interstate Commerce Commission v. Detroit, Grand Haven & Milwaul^ee Railroad Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306. (3) Weight, bulk and convenience of transportation. (4) The amount of the product or the commodity in the hands of a few persons to ship or compete for, recognizing the principal of sell- iDg cheaper at wholesale than at retail. Interstate Commerce Commission v. B. & 0. Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699. (5) General public good, including good to the shipper, the railroad company and the different localities. In- terstate Commerce Commission v. B. & 0. Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699. (6) Competition, which the authorities, as well as the experts, in their testimony in these cases, recognize as a very important factor. Pickering Phipps V. London & Northwestern Railway Company, 2 Q. B. D. (1882) 229 (this case construes section 2 of the Englisli act of 1854, which is almost like section 3 of our interstate com- 138 ]MusT BE Reasonable. [§ 67. merce act) ; Interstate Commerce Commission v. B. & 0. Ry. Co., supra. ; Cincinnati. New Orleans & Texas Pacific Railway Com- pan}^ V. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935 ; Interstate Commerce Commission v. Alabama Midland Railway Company, 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414; Louisville & Nashville Railroad Co. v. Behlmer, 175 U. S. 648. 20 Sup. Ct. 209, 44 L. Ed. 309 ; East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, 181 U. S. 1, 21 Sup. Ct. 516, 45 L. Ed. 719 ; Texas & Pacific Railway Co. v. Interstate Commerce Com- mission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940; Inter- state Commerce Commission v. Louisville & Nashville Railroad Co., 190 U. S. 273, 23 Sup. Ct. 687, 47 L. Ed. 1047. The Su- preme Court has also held that it may be presumed that Con- gress, in adopting the language of the English act, had in mind the construction given to the words "undue preference" by the courts of England. Interstate Commerce Commission v. B. & 0. Ry. Co., 145 U. S. 284, 12 Sup. Ct. 844, 36 L. Ed. 699. "None of the above factors alone are considered necessarily controlling by the authorities. Neither are they all controlling as a matter of law. It is a question of fact to be decided by the proper tribunal in each case as to what is controlling." The Commission in Delaware State Grange v. New York, P. & N. R. Co., 4 I. C. C. R. 588, 3 I. C. R. 554, 560, 561, speaking of the general principles to be considered in rate making, says: "The mandate of the statute is that all rates must be reason- able and just, but how the reasonableness and justice of a rate are to be determined is not prescribed by the statute, nor has any satisfactory test been evolved by transportation experts. Conflicts about rates arise from the conflicting interests of car- riers and shippers. As carriers make their o\^ti rates, they have primary regard for their own interests, and often give less weight than they ought to the interests of those they serve. This is more frequently the case in the absence of competition. Under stress of competition, or sometimes for the purpose of develop- ing business, rates that are equitable or even very low are likely to be made. But ^Yhen a controversy arises between the public and a carrier, the question of the reasonable limit of a rate usually involves many considerations, and is often difficult to determine. A rate that might be regarded as reasonable and just by a producer and shipper, might, from a carrier's stand- § 67.] Charges by Common Carriers 139 point, be deemed extremely unreasonable and unjust, and, so, conversely, a rate that a carrier might claim to be reasonable in itself, and that it might support with strong reasons based upon the cost of the service, the quantity of the business and the characteristics of its line of road, might exhaust the greater part of the proceeds of the producer's commodity and be de- structive to his interests. It is only stating a truism, therefore, to say there is no recognized test of a rate mutually reason- able for a carrier and for the producer of the traffic. "The reasonableness of a rate must consequently be ascer- tained in every instance in which the question arises, by its relations both to the carrier and to the shipper, and by compar- ison with rates normally charged for like or similar service." In Thompson Lumber Co. v. Illinois C. R. Co., 13 I. C. C. R. 657, 664, the commission says : ' ' In determining what is a reasonable and just rate many con- siderations are involved. Among these are the general financial and physical condition of the road, the character of the com- modity in question, whether it constitutes a large or small part of the business of the carrier, whether it is economical or ex- pensive to handle, how it compares with other commodities hauled, and, as evidencing the railroad's own judgment, whether a different rate has been in effect on this commodity at some other time." Cost and value of service are discussed by the commission in Boston Chamber of Commerce v. Lake Shore & M. S. R. Co., 1 I. C. C. R. 436, 1 I. C. R. 754, 760, 761, as follows: "The element of cost of service which may at one period have been recognized as controlling in fixing rates has long ceased to be regarded as the sole or most important factor for that pur- pose. The value of the service with respect to the articles car- ried, the volume of business, and the conditions and force of competition are justly considered to have controlling weight in determining the charges for transportation. But even with re- gard to the cost of service the cost is at least somewhat greater to Boston than to New York. ' ' "What interests should be considered is quoted from the Su- preme Court by the commission in Mayor etc. of Tifton v. Louis- ville & N. R. Co., 9 I. C. C. R. 160, 178, 189, as follows: "It was said by the Supreme Court of the United States in the case of Texas & P. R. Co. v. Interstate Commerce Commission, 140 Must be Reasonable. [§ G7. 162 U. S. 197, 40 L. Ed. 940, 5 I. C. C. Rep. 405, 16 Sup. Ct. Rep. 666: " 'In passing upon questions arising under the act, tlie tri- bunal appointed to enforce its provisions, whether the commis- sion or the courts, is empowered to fully consider all the cir- cumstances and conditions that reasonably apply to the situa- tion, and that, in the exercise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and in con- sidering whether any particular locality is subjected to an undue preference or disadvantage the welfare of the communi- ties occupying the localities where the goods are delivered is to be considered as well as that of the communities which are in the locality of the place of shipment." AVith reference to a rate "in and of itself," the commission in Tileston I\Iill Co. v. Northern P. R. Co., 8 I. C. C. R. 346, 361, says: "It is said that the rate from St. Cloud is reasonable in and of itself. A rate can seldom be considered "in and of itself." It must be taken almost invariably in relation to and in connec- tion wdtli other rates. The freight rates of this country, both upon different commodities and between different localities, are largely inter-dependent, and it is the fact that they do not bear a proper relation to one another, rather than the fact that they are absolutely either too low or too high, which most often gives occasion for complaint." In Cattle Raisers' Asso. v. Missouri, K. & T. R. Co., 11 I. C. C. R. 296, the commission discusses the cost to the carriers at originating and delivering points, cost and maintenance of equipment, expense of loading and reloading in transit incident to feeding, watering and resting the stock, character of the move- ment, number of cars in trains, average loading, volume and desirability of the traffic, return of empty cars, liability to dam- age, cost of carriage, increased cost of producing live stock, de- creased selling price, method of making the advanced rates, dis- appearance of competition, cost of railroad labor and supplies, improved methods of operation and increased general traffic, mileage revenue per ton per car and per train, and other perti- nent circumstances and conditions. In the investigation of these questions the commission is not hampered by technical rules. The Supreme Court, in Int. Com. § 67.] Charges by Common Carriers 141 Com. V. Baird, 194 U. S. 25, 44, 48 L. Ed. 860, 869, 24 Sup. Ct. 563, says : "The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by teclmical rules as to the admissibility of proof. Its function is largely one of investigation, and it should not be hampered in making inquiry pertaining to interstate commerce by those narrow rules which prevail in trials at common law, where a strict correspondence is required between allegation and proof." CHAPTER III. EQUALITY IN RATES. § 75. Common law as to equality in rates by common carriers. 76. Comparison of the English railway and canal act with the act to regulate commerce. 77. Discrimination forbidden. 78. . Discrimination against individuals. 79. Undue preference in favor of persons, localities or traffic. 80. Facilities for interchange of tratific and rates and charges to con- necting lines must be without undue or unreasonable preference. 81. Discrimination by charging more for a shorter than a longer haul. 82. Discrimination between car loads and less than car loads. 83. Classification of commodities should be without discrimination. 84. Milling in transit. 85. Eebilling illegal and discriminatory. 86. Discrimination by making payments to elevators and others ele- vating and sacking grain. 87. Cars must be furnished \^'ithout discrimination. 88. Right of carrier to route shipments beyond its own terminus. 89. Discrimination in billing. 90. Tariffs of rates must be printed, posted and maintained. 91. Different rates over the same line in opposite directions. 92. Discrimination by granting free service. 93. Commodities clause — Illegal for carriers to transport commodities produced or owned by them or in which they are interested. 94. Basing points and group rates. 95. Rebates. § 75. Common law as to equality in rates by carriers. — The common law rule as to the reasonableness of rates we have seen infra was undisputed. Equality in rates was not so definitely provided for in that system of laAvs, and it has been doubted whether or not a carrier was bound to charge equal rates to all its customers. Discussing this question Mr. Justice BrowTi said : ^ "Prior to the enactment of the act of February 4, 1887 (24 Stat, at L. 379), to regulate commerce, commonly known as the Interstate Commerce Act, railway traffic in this country was 'Int. Com. Com. v. Baltimore & 699, 703, 12 Sup. Ct. 844. See 3 O. R. Co., 145 U. S. 263, 36 L. Ed. Fed. Stat. Ann. 813. 142 § 75.] Equality in Rates. 143 regulated by the principles of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service: (Fitchburg R. Co. v. Gage, 12 Gray, 393 ; Baxendale v. Eastern Counties R. Co. 4 C. B. N. S. 63 ; Great Western R. Co. v. Sutton, L. R. 4 H. L. 226, 237 ; Ex parte Benson, 18 S. C. 38; Johnson v. Pensacola & P. R. Co., 16 Fla. 623) ; though the weight of authority in this country was in favor of an equality of charge to all persons for similar ser- vices." Neither under our statute nor under the common law is mere discrimination prohibited, but it will be fomad upon an examina- tion of the English authorities, that where the circumstances and conditions were the same those who dealt with a common carrier were entitled to equal treatment. In Parsons v. Chicago & N. W. R. Co.,^ the Supreme Court, having imder discussion a suit brought under an Iowa statute, said : "We remark again that there is no averment in this petition that the rates charged to and paid by the plaintiff were, in them- selves, imreasonable ; that is, it is not claimed that the rates charged for shipping corn from points in Iowa to Chicago were not fair and reasonable charges for the services rendered. The burden of the complaint is the partiality and favoritism shown to places and shippers in Nebraska. The plaintiff is not seek- ing to recover money which inequitably and without full value given has been taken from him. He is only seeking to recover money which he alleges in due, not because of any unreasonable charge, but on account of the wrongful conduct of the defendant. "Again, his cause of action is based entirely on a statute, and to enforce what is in its nature a penalty. Suppose that the of- ficials of the defendant company had charged the plaintiff only a reasonable rate for his personal transportation from his home in Iowa to Chicago, and at the same time had, without any just occasion therefor, given to his neighbor across the street free transportation, thus being guilty of an act of favoritism and partiality — an act which tended to diminish the receipts of the «1G7 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887. 1-44 Equality in Rates. [§ 75. railroad company, and to that extent the dividends of its stock- holders — such partiality on their part would not, in the absence of a statute, have enabled the plaintiff to maintain an action for the recovery of the fare which he had paid, and thus to reduce still further the dividends to the stocldiolders. " The illustration used in the foregoing quotation by Mr. Justice Brewer should not be applied generally. "Where as under the Constitution of the United States a schedule of rates may not be fixed less than will yield a fair return on the property em- ployed in the public use, every customer of a public carrier is, to some extent, interested in what it charges every one else. It is true that an individual may not have a cause of action so long as what he pays is reasonable, unless the preference granted others may damage him. If in the case cited the plaintiff had made a shipment under the same conditions as a competitor and for the same service had paid more than such competitor, he probably would have been entitled to recover. The further dis- cussion of the case by Mr. Justice Brewer shows this to have been his idea. He says: "Every fact which he alleges might be absolutely and fully true, and yet he, with Imowledge of the joint tariff, with the privilege of shipping under it, have never offered or sought to forward a single pound of corn to any other place than Chi- cago. Surely it needs but the statement of this to show that he comes far short of that rule of strict proof which enables one to enforce a penalty for wrong; for, if he would not under any circumstances have shipped to New York, was compelled by his contracts or any other consideration to ship to Chicago, he can not say that he was injured by his ignorance of the rate to New York. The only right of recovery given by the Interstate Com- merce Act to the individual is to the "person or persons injured thereby, for the full amount of damages sustained in conse- quence of any of the violations of the provisions of this act." So, before any party can recover under the act he must show, not merely the wrong of the carrier, but that that wrong has in fact operated to his injury. If he had shipped to New York and been charged local rates he might have recovered any ex- cess thereon over through rates. He did not ship to New York and yet seeks to recover the extra sum he might have been charged if he had shipped. Penalties are not recoverable on mere possibilities." § 76.] Equality in Eates. 145 That the common law required equality of service and charges imcler the same or similar circumstances is more clearly appar- ent from a subsequent decision of the Supreme Court in Western Union Tel. Co. v. Call Publishing Co.,^ where the same eminent justice who wrote the opinion in the Parsons case, supra, said : "Common carriers, whether engaged in interstate commerce or in that wholly within the state, are performing a public service. They are endowed by the state with some of its sover- eign powers, such as the right of eminent domain, and so en- dowed by reason of the public service they render. As a conse- quence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does for- bid any difference in charge which is not based upon difference in service, and, even when based upon difference of service, must have some reasonable relation to the amount of difference, and can not be so great as to produce an unjust discrimination. To affirm that a condition of things exists under which common carriers anywhere in the country, engaged in any form of trans- portation, are relieved from the burdens of these obligations, is a proposition which, to say the least, is startling." Further in the opinion it was stated that "the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional action," and, we may conclude, that such principles required "equal rights both in respect to service and charges," when the circumstances and conditions were the same; and where the circumstances and conditions were different, the difference in service and charges should bear a reasonable relation thereto. § 76. Comparison of the English Raiway and Canal Act with Act to Regulate Commerce. — The remark of the Supreme Court in Int. Com. Com. v. Baltimore & 0. R. Co.,* "that Congress in adopting the language of the English act. had in mind the '181 U. S. 92, 45 L. Ed. 765, 21 * Int. Com. Com. v. Baltimore & Sup. Ct. 561. O. R. Co., 145 U. S. 263, 36 L. Ed. 699, 703, 12 Sup. Ct. 844. 146 Equality in Rates. [§ 76. construction given to these words by tlic English courts" had reference to section three of our act, though to a less extent the same could be said of section two. Section two of the act of February 4, 1887, post, § 508, known as the unjust discrimination clause, is based upon § 90 of the English Railway Clauses Act of 1845.^ The section of the English act, called the Equality Clause, provided that "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 passen- gers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same cir- cumstances. Section two of the Interstate Commerce Act used the words "under substantially similar circumstances and condi- tions," which phrase is not so exclusive as the words of the English act which requires equality only when the transporta- tion is "over the same portion of the line of railway." The American act is, therefore, broader in its scope than the English act, but each act recognized that "different circumstances" may justify different rates. The English statute uses the word "same" before "circumstances," ours uses the word "similar." This difference and the broader scope of the American act should be kept in mind w^hen considering the English decisions. Section two of the English Railway and Canal Traffic Act of 1854,° furnished the model of section three of our act.'' The English and the American sections just referred to are each des- ignated as the "undue preference clause." The fourth section of the American act, known as the "long and short haul clause," was imlike any section of the English act prior to 1887. In 1888 the Railway and Canal Traffic Act of that year gave the English Commissioners power to prohibit a higher charge for a less dis- tance where the service is similar. The provision is the third paragraph of section twenty-seven and reads as follows: " "The court or the commissioners shall have the power to di- ' Browne & Theobald Law of ^ Post § 509, note*, supra. Eailways (Englisli) p. 312. Tram- ^Browne & Theobald, supra, p. mell, Eailroad Commissioners of 771 ; see also sections 25 to 27 Eng- Georgia v. Clyde S. S. Co., 5 I. C. lish Railway and Canal Traflfie Act C. E. 324, 4 I. C. E. 120, 140. of 1888 Browne & Theobald, pp. 765 * Browne & Theobald, supra, p. to 772. 405. Trammell Case, supra, note °. § 77.] Equality in Rates. 147 rect that no higher charge shall be made to any person for ser- vices in respect of merchandise carried over a less distance than is made to any other person for similar services in respect of the like description and quantity of merchandise carried over a greater distance on the same line of railway." This comparison may be concluded by quoting the language of the conunission as follows :" ''In a case purely of alleged undue preference or prejudice the English cases have direct application. Even in cases under our second and fourth sections, English cases brought under the undue preference clause in which the decision has held imdue preference to exist, have value as showing how strictly the English commission or court has applied the broad language of the clause to a particular set of facts, but when English de- cisions under the undue preference clause are cited by a carrier in justification of its action under the strict language of our second and fourth sections, the citations have greatly diminished force. These sections apply only against rates in specific cases, but the luidue preference clause or third section is inclusive; it applies both to rates and facilities, and says generally to the carrier, you shall not in any manner unduly prefer one person or kind of traffic over another, and leaves, it to the commission or the court to say when the undue preference is given. In the second and fourth sections what is unlawful is clearly defined, the circumstances and conditions of the transportation being similar in substance. We think, therefore, that while English cases are valuable as defining undue preference or prejudice their value is greatly limited in cases where the statute itself de- scribes the offense it declares unlawful." § 77. Discrimination forbidden. — Equality of rights and priv- ileges under "substantially similar circumstances and condi- tions" is sought to be guaranteed shippers and "particular de- scriptions of traffic" by sections two, three and four of the act to regulate commerce. These sections, which were in the orig- inal act and have been retained in the amendments, announce the principles of law fixing equality of charges and service by common carriers. These principles are supported and enforced by the provisions of the act to regulate commerce which prohibit » Tranime]], Ejiilroad Commission C. C. R. 324, 4 I. C. R. 120, 143, of Georgia v. Clyde S. S. Co., 5 I. 144. 148 Equality in Rates. [§ 77. free passes, except under certain prescribed limitations, prohibit carriers from transportini? commodities in which they are in- terested; require the making of switch connections; making criminal the pooling of freights ; require schedules of rates to be printed, posted and maintained; prevent changes in rates with- out at least thirty days notice ; provide punishment for granting, receiving, or inducing the payment of rebates; punish false billing; require witnesses to testify, and prescribe methods of procedure for the public enforcement of the act and the protec- tion of individuals who may suffer from its violation. Inequality of charges is an evil that is more readily seen and keenly felt than are charges unjustly high. A difference in a freight charge of a few cents per hundred pounds on a particular commodity may mark the line between a reasonable and an un- reasonable rate and the higher charge may be unjust and unrea- sonable. The injustice, however, is so distributed that no one feels seriously hurt and no complaint is made. A preferentiaj or discriminatory charge may make or unmake cities and busi- nesses and hurts some to the benefit of others. Such charges, therefore, are not only imjust and contrary to the very spirit of the American people, but they are sufficiently injurious to arouse to action those who are injured. The consumer usually pays the unjustly high rate, but the individual or the community is injured, sometimes ruined, by the discriminatory rate. Under the once prevalent system of rebating, businesses were built up or destroyed bj^ carriers. Even since rebating has practically ceased, cities are helped or injured by privileges given the one and withheld from the other. Rarely would carriers have com- plaints of rates if all rates and practices were adjusted without undue discrimination and luijust preference. Speaking of the evils existing before the act to regulate commerce was passed by Congress and which evils the states had ineffectually attempted to remedy, the Supreme Court said : " "These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular 1" lut. Com. Com. v. Baltimore & 699, 703, 12 Sup. Ct. 844. O. E. Co., 145 U. S. 263, 36 L. Ed. § 78.] Equality in Rates. 149 locality or community, or of some local trade or commercial con- nection, or for the destruction or crippling of some rival or hostile line." The problem of giving shippers a just equality is not an easy one of solution by the carriers. It is easier to know what is just equality than to adopt such rates and practices as will accom- plish that end. Long existing injustice is hard to dislodge. A particular discrimination that has long continued in favor of a community, has become in the eyes of that community a vested right. It is hard for the beneficiary of a wrong to see that WTongs do not become rights by mere lapse of time. Carriers frequently welcome the aid of the commission to help rid them- selves of practices that are im justly discriminatory. § 78. Discrimination against individuals. — Section two of the act to regulate commerce, post § 508, was intended to prevent different charges for services rendered one person than were charged to another person for a like and contemporaneous ser- vice of a like kind of traffic imder substantially similar circum- stances and conditions. Under the "same circumstances" and "goods of the same description" used in the English law are not used with reference to the contents of the parcels but to the parcels themselves, that is, like or different for the purposes of carriage. They are also used with reference to the conversance of goods and not to the persons themselves." This means, and the act to regulate commerce has also been so construed, that competition, however great, can not justify charges to one per- son greater than those to another. Two shippers, shipping a like kind of traffic at the same time, over the same road, are entitled to the same rate. It makes no difference that one may be in a position to ship over another line, or that his total ship- ments may greatly exceed those of the other. In Wight v. United States," the Supreme Court, speaking of the phrase "under substantially similar circumstances and conditions," says: "For this case, it is enough to hold that that phrase as found in section 2, refers to the matter of carriage, and does not in- clude competition." " G. W. By. V. Sutton, 38 L. .T. 17 Sup. Ct. 822. Seo also Int. Com. Ex. 177, L. R. 4 H. L. 226, 22 L. T. Com. v. Detroit, G. K. & M. %. Co., 4.3, 18 W. R. 92. 167 U. S. G.3.3, G44, 42 L. Ed". 30G, "1G7 U. S. 512, 42 L. Ed. 258, 310, 17 Sup. Ct. 986. 150 Equality in Kates. [§ 78. In Int. Com. Com. v. Alabama M. R. Co." the Supreme Court advances the same ruling as follows : "To prevent misapprehension, it should be stated that the conclusion to which we are led by these cases, that, in applying the provisions of the 3d and 4th sections of the act, which make it unlawful for common carriers to make or give any undue or mireasonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggegate for the transportation of passengers or of like- kind of property, under substantially similar circumstances and conditions, for a shorter than a longer distance over the same line, in the same direction, competition which affects rates is one of the matters to be considered, is not applicable to the 2d section of the act. "As we have shown in the recent case of Wight v. United States, 167 U. S. 512 (42 L. Ed. 258, 17 Sup. Ct. 822), the pur- pose of the second section is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same dis- tance, under the same circumstances of carriage, are compelled to pay different prices therefor, and we there held that the phrase "imder substantially similar circumstances and condi- tions," as used in the second section, refers to the matter of car- riage, and does not include competition between rival routes. "This view is not open to the criticism that different mean- ings are attributed to the same w^ords when found in different sections of the act ; for what w-e hold is that, as the purposes of the several sections are different, the phrase under consideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the opera- tion of competition, but that in the other sections, which cover the entire tract of interstate and foreign commerce, a meaning must be given to the phrase wide enough to include all the facts that have a legitimate bearing on the situation — among which we find the fact of competition when it affects rates." Kirkman, in the Science of Railways, vigorously argues against any governmental regulation of railroads, but he admits that there is no justice in distinguishing between persons. He says : " "Int. Com. Com. v. Alabama M. "Vol. 8, p. 110. Ey. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. § 78,] Equality in Rates. 151 ''If a railroad refuses to one shipper what it concedes to another, everything being alike, article, place, time, quantity, risk, and service, that is not discrimination, but robbery. Petty instances of this kind have occurred in the history of railway management. But they are only instances. They are, however, the stock in trade of railway critics. They are unworthy of notice. They form no appreciable element, and are not to be compared for a moment to the benefits that grow out of the ability of carriers to adapt their properties to the varying needs of those they serve." In Capital City Gas Co. v. Central V. R. Co.,'* Mr. Commis- sioner Knapp, speaking for the commission and having under consideration rates, one of which was made for coal when de- livered to a connecting carrier for "railroad supply," and the other and higher of which was a combination rate applicable to coal used for commercial purposes and purposes other than "railroad supply," said: "When bituminous coal is carried by defendants from Nor- wood to Montpelier the service is performed under substantially similar circumstances and conditions whether transported for a connecting railroad or for complainant and other consumers. * ******** "We are constrained to hold that these facts, which are wholly undisputed, establish a discrimination forbidden by the second section of the act. In transporting bituminous coal from Norwood to Montpelier at 90 cents a ton for "railroad supply" the same service is performed and the circumstances and condi- tions of carriage are the same in every material effect as in transporting coal at $1.85 per ton for complainant and other consignees. This appears to be conceded since no proof was of- fered that the fact is otherwise. It follows, as we think, that the difference in rates is a violation of the statute. Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. Rep. 822 ; Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 166, 42 L. Ed. 414, 423, 18 Sup. Ct. Rep. 45. In the former case it was held that the phrase "under substan- tially similar circumstances and conditions," as used in the sec- ond section, refers to the matter of carriage, and the decision " 11 I. C. C. E. 104, 105, 106, 107. 152 Equality in Rates. [§ 79. therein rendered, as explained and confirmed in the subsequent ease, condemns as nnhnvful the discriminating charges here considered. It is not permissible under this section for two or more carriers to establish a joint through rate, less than the sum of their locals, which is available only to a particular shipper or class of shippers, while denying such lower rate to other shippers of like traffic between the same points of origin and destination. In such case it may be said that the law pre- sumes a common injury to those compelled to pay the higher rate because of the concession to the interest favored. If those defendants obtain only reasonable returns from their entire coal traffic, it may be well claimed that the rates charged com- plainant and other IMontpelier consumers are higher than they would be but for the much lower rates allowed on coal for ' ' rail- road supply." "jMoreover, if this view is correct, the absence of actual preju- dice to complainant would not excuse the defendants. The most salutary law may doubtless be disregarded in some cases with- out injury and inflict a degree of hardship in other cases by its enforcement. Whatever may be said in that regard in the pres- ent instance, we are convinced, upon the authority of the de- cisions above cited, that the regulating statute does not permit the discrimination shown in this case and our ruling must so declare." § 79. Undue preferences in favor of persons, localities or traffic. — Section three of the act to regulate commerce we have seen is substantially the same as section two of English Railway and Canal Traffic Act of 1854. This section is broader than section two of the act to regulate commerce and prohibits undue or unreasonable preference. The words "undue" and "unrea- sonable" in the section shoAv that in the legislative mind there could be a preference that was not unreasonable and that was legal. This has been the construction both of the English and the American statutes. The Supreme Court discusses English cases in the Party Rate Case,'" and also construes both sections two and three. The Supreme Court in the case referred to re- fused to enforce an order of the commission and held that a party of ten or more could be legally carried on one ticket at "Int. Com. Com. v. Baltimore & Ohio E. Co., 145 U. S. 263, 36 L. Ed. 699, 705, 706, 12 Sup. Ct. 844. § 79.] Equality in Rates. 153 a less rate for each individual than was charged for one person. In the course of the opinion Mr. Justice BroA\Ti said: "In order to constitute an unjust discrimination under sec- tion 2, the carrier must charge or receive directly from one per- son a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate, or other device; but, in either case, it must be for a 'like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions.' To bring the present case within the words of this section, we must assume that the transportation of ten per- sons on a single ticket is substantially identical with the trans- portation of one, and, in view of the universally accepted fact that a man may buy, contract, or manufacture on a large scale cheaper proportionately than upon a small scale, this is impos- sible. "In this connection we quote with approval from the opinion of Judge Jackson in the court below : ' To come within the in- hibition of said sections ( 2 and 3 ) , the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic under sub- stantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons, or classes, between whom differences in charges are made, must be compared with each other, and there must be found to exist substantial identity of situation and of service, accompanied by irregularity and partially resulting in undue advantage to one, or undue disadvantage to the other, in order to constitute unjust discrimination.' "The English Traffic Act of 1854 contains a clause similar to section 3 of the Interstate Commerce Act, that 'no such com- pany shall make 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 whatso- ever, 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 re- spect whatsoever.' "In Hozier v. Caledonian R. Co., 17 Sess. Cas. 302, 1 Nev. & McN. R. Cas. 27, complaint was made by one who had frequent occasion to travel, that passengers from an intermediate station ]5-4 Equality IN Rates. [§79. between Glasgow and l^diiibiii'gli were charged much greater rates to those places than were charged to other through pas- sengers between these termini; but the Scotch Court of Session held that the petitioner had not shown any title or interest to maintain the proceeding; his only complaint being that he did not choose that parties traveling from Edinburgh to Glasgow should enjoy the benefit of a cheaper rate of travel than he him- self could enjoy. 'It provides,' said the court, 'for giving undue preference to parties pari passu in the matter, but you must bring them into competition in order to give them an interest to complain.' "This is in substance holding that the allowance of a re- duced through rate worked no injustice to passengers living on the line of the road, who were obliged to pay at a greater rate. So, in Jones v. Eastern Counties R. Co., 3 C. B. N. S. 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London upon the same terms as they issued them between Harwich and London, upon "the mere suggestion that the granting of the latter, the dis- tance being considerably greater, at a much lower rate than the former, was an undue and unreasonable preference of the in- habitants of Harwich over those of Colchester. Upon the other hand, in Ransome v. Eastern Counties R. Co., 1 C. B. N. S. 437, W'here it was manifest that a railway company charged Ipswich merchants who sent from thence coal which had come thither by sea, a higher rate for the carriage of their coal than they charged Peterboro merchants, who had made arrangements with them to carry large quantities over their lines, and thus the sums charged the Peterboro merchants were fixed so as to enable them to compete with the Ipswich merchant, the court granted an in- junction upon the ground of an undue preference to the Peter- boro merchants, the object of the discrimination being to benefit the one dealer at the expense of the other, by depriving the lat- ter of the natural advantages of his position. In Oxlade v. Northeastern R. Co., 1 C. B. N. S. 454, 26 L. J. C. P. 129, 1 N. & ;Mac. 72, a railway companj^ was held justified in carrying goods for one person for a less rate than that at which they carried the same description of goods for another, if there be circumstances which render the cost of carrying the goods for the former less than the cost of carrying them for the latter, but that a desire to introduce northern coke into a certain dis- § 79.] Equality in Rates. 155 trict was not a legitimate groimd for making special agreements with different mereliants for the carriage of coal and coke at a rate lower than the ordinary charge, there being nothing to show that the pecuniary interests of the company were affected; and that this was an undue preference. "In short, the substance of all these decisions is that railway companies are only bound to give the same terms to all persons alike imder the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may justify contracts which with us would be obnoxious to the long and short haul clause of the act, or would be open to the charge of unjust discrimination. But so far as relates to the question of "undue preference," it must be presumed that Congress, in adopting the language of the English act, had in mind the construction given to these words by the English courts, and in- tended to incorporate them into the statute. McDonald v. Hovey, 110 U. S. 619 (28 L. Ed. 269, 4 Sup. Ct. 142)." In the same case Circuit Judge Jackson, afterwards Mr. Jus- tice Jackson, said:" "In passing upon the question of undue or unreasonable preference or disadvantage, it is not only legiti- mate, but proper, to take into consideration, besides the mere differences in charges, various elements, such as the convenience of the public, the fair interest of the carrier, the relative quan- tities or volume of the traffic involved, the relative cost of the services and profit to the company and the situation and cir- cumstances of the respective customers with reference to each other, as competitive or otherwise." In other words, as said by the Supreme Court, in East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com. :'' " The prohibition of the 3d section, when that section is considered in its proper relation, is directed against unjust discrimination or undue preference arising from the voluntary and wrongful act of the carriers com- plained of as having given undue preference, and does not re- late to acts the result of conditions wholly beyond the control of such carriers." "Int. Com. Com. v. Baltimore & "181 U. S. 1, 18, 45 L. Ed. 719, Ohio R. Co., 4.3 Fed. 37, 53, 54, 725, 21 Sup. Ct. 516. 3 I. C. R. 192. 156 Eqttamty in Rates. [§ 80. Length of time that an unreasonable preference has existed will not justify it. Judge Taft. in East Tenn., Va. & Ga. Tty. Co. V. Int. Com. Com., said : " "We are pressed with the argument that to reduce the rates to Chattanooga will upset the whole southern schedule of rates, and create the greatest confusion ; that for a decade Chattanooga has been grouped with towns to the south and west of lier, shown in the diagram; and that her rates have been the key to the southern situation. Tlio length of time which an abuse has continued does not justif}^ it. It "was because time had not cor- rected abuses of discrimination that the Interstate Commerce Act was passed." From these authorities it is seen that in determining whether or not undue preference exists all the surrounding facts and cir- cumstances must be considered, including competition and the interests of the public and the carriers. The commerce of this vast country could not be transacted unless carriers were allowed to meet market and other competition by taking all traffic that increases receipts more than expenditures. Nor is the person or locality that is seemingly discriminated against by this lower competitive traffic, really subjected to unjust or unreasonable discrimination or preference. If this cheaper rate traffic pays any profit, it, to that extent, increases the revenue of the carrier and enables it to better perform its public duties. As said by W. B. Dabney (The Public Regulations of Railways, 111, 113) : "Discrimination which produces no injury can not be considered unjust; i'f it can be shown that discrimination may in certain cases be actually beneficial to the community apparently discrim- inated against, it should, instead of being denounced, be encour- aged. It is not the commerce of one nation or continent alone, that determines the conditions of transportation within its limits, but that of the civilized world." Carriers, however, can not use these arguments to do more than meet the situations pre- sented by the circumstances and conditions, and any discrimina- tion in excess of that required by the different conditions is un- just and unreasonable. § 80. Facilities for interchange of traffic and rates and charges to connecting lines must be without undue or unreasonable pref- "99 Fed. 52, 63, .39 C. C. A. 413, Chicago v. Chicago & A. E. Co., 4 425. See also Board of Trade of I. C. C. R. 158. 3 I. C. R. 233. § 80.] Equality in Rates. 157 erence. — The second paragraph of section three of the act to regulate commerce (see post § 510) requires common carriers subject to the act to afford reasonable, proper and equal facil- ities for the interchange of traffic and prohibits discrimination in the rates and charges of connecting lines, but does not re- quire them to give the use of their tracks or terminal facilities to another carrier engaged in like business. This provision of the law does not apply where the circumstances and conditions are dissimilar."" As to its tracks and terminal facilities, a com- mon carrier is left free to allow their use by one or more con- necting lines to the exclusion of others."' Prior to the statute a carrier was not compelled to form a business connection with another carrier and was not compelled to "afford all reasonable, proper, and equal facilities for the interchange of traffic" with connecting carriers. In Atchison, T. & S. F. R. Co. v. Denver & N. 0. R. Co.,^^ a bill was brought by the Denver company to compel the Atchison company to unite with it in forming a through line of railroad transportation with all the privileges as to exchange of business that were customary with connecting carriers and that were then conceded to a competitive line of complainant. It appears from the evidence that it was the cus- tom of connecting lines to make arrangements with reference to the interchange of business and the formation of through lines. Of the facts, the court said : "A large amount of testimony is found in the record, as to the custom of connecting roads in respect to the interchange of busi- ness and the formation of through lines. From this it appears that, while through business is very generally done on through lines formed by an arrangement between connecting roads, no road can make itself a part of such a line, so as to participate in its special advantages, without the consent of the others. Of- '" Kentucky & I. Bridge Co. v. Fed. 465. Affirmed. 61 Fed. Louisville & N. E. Co., 37 Fed. 567, 158, 9 C. C. A. 409; Atchison, T. & 624, 2 L. E. A. 289, 2 I. C. E. 351; S. F. Ey. Co. v. Denver & N. O. E. New York & N. Ey. Co. v. New Co., 110 U. S. 667, 28 L. Ed. 291, York & N. E. Ey. Co., 50 Fed. 867. 4 Sup. Ct. 185; Gulf, C. & S. F. =' Little Eock & M. Ey. Co. v. Ey. Co. v. Miami S. S. Co., 86 Fed. St. Louis, I. M. & S. Ey. Co., 59 407, 30 C. C. A. 142. Fed. 400. Affirmed. 63 Fed. 775, '-^^ Atchison, T. & S. F. Ey. Co. v. 11 C. C. A. 417, 26 L. E. A. DcMiver & N. O. E. Co., 110 U. S. 192. Oregon S. L. & U. N. 667, 28 L. Ed. 291, 4 Sup. Ct. 185. Co. V. Northern Pac. E. Co., 51 158 Equaijty IN Eates. f§80. tentimes new roads, opening up new points, nre admitted at once on notice, without a special agreement to that effect or in reference to details; still, if objection is made, the new road must be content with the right to do business over the line in such a way as the law allows to others that have no special con- tract interest in the line itself. The manner in Avhich its busi- ness must be done by the line will depend, not alone on the con- nection of its track with that of the line, but upon the duty which the line as a carrier owes to it as a customer. No usage has been established which requires one of the component com- panies of a connecting through line to grant to a competitor of any of the other companies the same privileges that are accorded to its associates, simply because the tracks of the competing company unite with its owti and admit of a free and convenient interchange of business. The line is made up by the contract- ing companies to do business as carriers for the public; and companies, whose roads do not form part of the line, have no other rights in connection with it than such as belong to the public at large, unless special provision is made therefor by the legislature or the contracting companies." The decree entered by the trial court fixes in detail, rules and regulations for the working of the Atchison, Topeka and Santa Fe, and Denver and New Orleans roads, in connection with each other as a connecting through line and, in effect, requires the Atchison, Topeka and Santa Fe Company to place the Denver and New Orleans Company on an equal footing as to the inter- change of business with the most favored of the competitors of that company, both as to prices and facilities, except in respect to the issue of through bills of lading, through checks for bag- gage, through tickets and, perhaps, the compulsory interchange of cars. The Supreme Court goes somewhat at length into the history of state legislation with reference to connections between car- riers and holds that "such matters are and always have been proper subjects for legislative consideration" and that remedies for failure to make connections or to make connections without discrimination "can only be obtained from the legislative branch of the government." The court then discussed the "undue pref- erence clause" of the English Railway and Canal Traffic Act of 1854 and says: "Were there such a statute in Colorado, this case would come § 80.] Equality in Rates. 159 before us in a different aspect. As it is, we know of no power in the judiciary to do what the Parliament of Great Britain has done and what the proper legislative authority ought perhaps to do, for the relief of the parties to this controversy. "All the American cases to which our attention has been called by counsel relate either to what amounts to undue dis- crimination between the customers of a railroad, or to the power of a court of chancery to interfere, if there be such a discrim- ination. None of them hold that, in the absence of statutory direction or a specific contract, a company having the power to locate its own stopping places can be required by a court of equity to stop at another railroad junction and interchange busi- ness, or that it must under all circumstances give one connecting road the same facilities and the same rates that it does to an- other 'with which it has entered into special contract relations for a continuous through line and arranged facilities accord- ingly. These cases are all illustrative in their analogies, but their facts are different from those we have now to consider." The decree of the circuit court was reversed, with instructions to dismiss the bill without prejudice. This case was decided in 1883, and clearly points out the evils sought to be remedied by this section of the act to regulate commerce. In Wisconsin, i\I. & P. R. Co. V. Jacobson,"^ the Supreme Court had before it a case from the Supreme Court of Minnesota to review the judg- ment of that court affirming the judgment of the district court, directing the plaintiff in error and the Willmar & Sioux Falls Railway Company to make track connections with each other at Hanley Falls, in the state of IMinnesota, where their respective tracts intersect. The judgment of the district court declared as follows : "That it is the duty of the defendants, the Wisconsin, Minne- sota & Pacific Railroad Company and the Willmar & Sioux Falls Railway Company, and they should be and are required to forth- with provide at the place of intersection of their said roads at said Hanley Falls, ample facilities by track connections for transferring any and all cars used in the regular business of their respective lines of road from the line of tracks of one of said companies to those of the other, and to forthwith provide, at said place of intersection, equMl and reasonable facilities for «]79 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115. 160 Equality IX Kates. [§81. the interchange of cars and traffic between their respective lines, and for the receiving, forwarding, and delivering property and cars to and from their respective lines." The conrt discusses somewhat at length the legal principle that railroads are public highways, upon which fact rests the right and duty of the government to regulate, in a reasonable and proper manner, the conduct of their business, and the sum of its opinion affirming the state court is contained in two para- graphs of the opinion, as follows : "We think this case is a reasonable exercise of the power of regulation in favor of the interests and for the accommodation of the public, and that it does not, regard being had to the facts, luiduly, unfairly, or improperly affect the pecuniary rights or interests of the plaintiff in error." "In this case the provision is a manifestly reasonable one, tending directly to the accommodation of the public, and in a manner not substantially or unreasonably detrimental to the ultimate interests of the corporation itself." This section did not compel a carrier to establish through routes and joint rates, and any carrier could select from two or more connecting carriers those whom it would employ as its agents to send freight beyond its o^^^l line.^ This power to re- quire the establishment of through routes and joint rates has been given to the commission by section fifteen of the act as amended by the act of Jime 29, 1906. The ouTier of a private wharf, however, can not be compelled, except by condemnation and upon compensation being made for the taking of the prop- erty, to allow its use by others.'"^ § 81. Discrimination by charging more for a shorter than a longer haul. — Section four of the act to regulate commerce (see post § 511), kno^Mi as the long and short haul clause, prohibits carriers from charging or receiving a greater compensation from transportation of passengers or "likekind of property under substantially similar circumstances and conditions" for a shorter than for a longer distance over the same line, in the same direc- ^ Kentucky & I. Bridge Co. v. Coast Naval Stores Co., 198 U. S. Louisville & N. E. Co., 37 Fed. 567, 483, 49 L. Ed. 1135, 25 Sup. Ct. 630; Prescott & A. C. E. Co. v. 745; Weems Steamboat Co. v. Peo- Atchison, T. & S. F. E. Co., 73 Fed. pie's Co., 214 U. S. 34.5, 53 L. Ed. 438. , Sup. Ct. =« Louisville & N. E. Co. v. West § 81.] Equality in Rates. 161 tion, the shorter being included in the longer. The proviso of the section authorizes the commission, in special cases, after in- vestigation, to permit a less charge for a longer than a shorter haul. The meaning of this proviso was first discussed by Judge Cooley, then chairman of the commission, In re Petition of Louisville and Nashville Railroad Co. and Southern Ry. & S. S. Co., 1 I. C. C. R. 31, 57, 1 I. C. R. 278. The carriers, not knowing just what would be the construction of the section, thought it wise to appeal to the discretion granted by the com- mission in the proviso. The proceedings before the commission in the case cited, supra, are given at length in the Interstate Commerce Reports, vol. I, beginning at page 76. In the peti- tion of the Southern Pacific Co., its president said: "We construe the fourth section of the Interstate Commerce Act practically to be in substance the application to interstate commerce of the common-law principle that the shipper avail himself of competition, and that a less rate may be charged for a longer than a shorter distance, providing more could not be obtained. If the right of competition is recognized as between the carrier and the shipper, our carrying business will not be interrupted ; but otherwise we shall be imable to compete for the Chinese and Japanese trade with the Suez Canal, and also unable to compete with the water routes by Panama and Cape Horn for business originating in California." In discussing the question Judge Cooley points out the fact that the proviso of the section was devised by the Senate com- mittee, when the prohibitive portion of the section was much more stringent than what was subsequently passed. In con- struing the section this great lawyer said : "That which the act does not declare unlawful must remain lawful if it was so before ; and' that which it fails to forbid the carrier is left at liberty to do without permission of any one. The charging or receiving the greater compensation for the shorter than the longer haul is seen to be forbidden only when both are under substantially similar circumstances and condi- tions; and, therefore, if in any case the carrier, without first ob- taining an order of relief, shall depart from the general rule, its doing so will not alone convict it of illegality, since if the cir- cumstances and conditions of the two hauls are dissimilar the statute is not violated. "Should an interested party dispute that the action of the 1()2 Equality in Rates. [§81- carrier was warranted, an issue would be presented for adjudi- cation, and the risks of that adjudication the carrier would neces- sarily assume. The later clause in the same section, which em- powers the commission to make orders for relief in its discretion, does not in doing so restrict it to a finding of circumstances and conditions strictly dissimilar, but seems intended to give a dis- cretionary authority for cases that could not well be indicated in advance by general designation, while the cases which upon their facts should be acted upon as clearly exceptional would be left for adjudication when the action of the carrier was challenged. The statute becomes on this construction practical, and this sec- tion may be enforced without serious embarrassment." It seems that thus early in the history of the commission it was held that where the kind of property or the circumstances and conditions were different, the statute did not apply, and the carrier was at liberty, without application to the commission, to meet competition by making a less charge for the longer haul. In the opinion of the then chairman, the commission was, by the proviso, given a discretion to relieve from the act even when its provisions did apply to the particular movement. Unless this construction of Judge Cooley is correct, the proviso means that in all cases carriers must first apply to the commission, or it is meaningless. The opinion of Judge Cooley was subsequently overruled, the commission saying : '" "A construction of the law which allows a carrier to de- termine for itself in every instance whether the lower rate for the longer distance is warranted, is liable, when such lower rate is adopted by it, to cause another carrier serving the same terri- tory to feel justified in establishing a lower rate for the longer distance on its line to the same point or to a different point appearing to require relatively favorable rates; and is also lia- ble to cause other carriers in the same section to take similar action, thus creating an artificial or abnormal situation which constantly provokes belief and claim of icujast discrimination and endless controversies between shippers and carriers. Such a situation, left unchanged, presents a railroad problem most difficult of solution. But a construction of the law^ which will compel a carrier, before putting in a lower rate for the longer =»Eailroad Commission of Geor- Co., 5 I. C. C. R. 324, 4 I, C. E. gia, Traniffiell et al. v, Cl7de S. S. 120, 150. § 81,] Equ.vlity in Rates. 163 distance, to seek relief by a method which will involve a careful examination of the traffic conditions as to all lines competing for carriage in the same territory, would tend to promote a solu- tion more beneficial for all parties. "A concise statement of this construction of the fourth sec- tion on the point above discussed is : The carrier has a right to judge in the first instance whether it is justified in making the greater charge for the shorter distance under the fourth sec- tion in all cases where the circumstances and conditions arise wholly upon its own line or through competition for the same traffic with carriers not subject to regulation under the act to regulate commerce. In other cases under the fourth section the circumstances and conditions are not presumptively dissimilar, and carriers must not charge less for the longer distance except upon the order of this commission. "Aside from overuling the "rare and peculiar cases" excep- tion, this construction is no departure from previous rulings and is not new." The Supreme Court subsequently adopted the rule announced by Judge Cooley." The first case under this section to reach the Supreme Court is what is known as the Social Circle Case.^^ In that case the first contention w^as that as the charge to Social Circle was made up, of the joint rate to Atlanta, the long haul, plus the local rate over an intrastate road from Atlanta to Social Circle, the whole of the local rate going to the state road, the shipment was not within the provisions of the act to regulate commerce. This con- tention the Supreme Court held unsoimd, saying: "that when goods are shipped under a through bill of lading, from a point in one state to a point in another, and w^hen such goods are received in transit by a state common carrier, under a conven- tional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous car- riage or shipment within the meaning of the act to regulate com- merce. " Having held that the Georgia Road was subject to the provision of the section, the court proceeded to define the power " Int. Com. Com. v. Alabama M. ^^ Int. Com. Com. v. Cincinnati, E. Co., 168 U. S. 144, 42 L. Ed. 414, N. O. & T. P. Ey. Co., 162 U. S. 18 Sup. Ct. 45. ]84, 40 L. Ed. 935, 16 Sup. Ct. 700. 164 Equality ix Rates. [§81. of the commission, and to state the effect of its decision that the section had been violated. The court said : "Subject, then, as we hold the Georgia Railroad Company is, under the facts found, to the provisions of the act to regulate commerce, in respect to its interstate freight, it follows, as we think, that it was within the jurisdiction of the commission to consider whether the said company, in charging a higher rate for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance, was or was not transporting property in transit be- tween states, under 'substantially similar circumstances and conditions. ' ''We do not say that, under no circumstances and conditions, would it be lawful, when engaged in the transportation of for- eign freight, for a carrier to charge more for a shorter than a longer distance on its own line ; but it is for the tribunal ap- pointed to enforce the provisions of the statute, whether the commission or the court, to consider whether the existing cir- cumstances and conditions were or were not substantially sim- ilar. "It has been forcibly argued that, in the present case, the commission did not give due weight to the facts that tended to show that the circumstances and conditions were so dissimilar as to justify the rates charged. But the question was one of fact, peculiarly within the province of the commission, whose conclusions have been accepted and approved by the circuit court of appeals, and w^e find nothing in the record to make it our duty to draw a different conclusion." In the Import Rate Case,"" the Supreme Court discussed sec- tion four as follows : "The 4th section makes it unlawful for any such common carrier 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 condi- tions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being within the longer distance, but this shall not be construed as authorizing any such common carrier to charge and receive as great compensation for ^ Int. Com. Com. v. Tex. & P. Ry. 16 Sup. Ct. 700. Co., 162 U. S. 197, 42 L. Ed. 940, § 81.] Equality in Rates. 165 a shorter as for a longer distance," and provision is likewise made that, 'upon application to the commission appointed under the provisions of the act, such common carrier may, in special cases, after investigation by the commission, be authorized to charge less for longer than shorter distances for the transpor- tation of passengers or property;' and that 'the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this sec- tion of the act.' * * * * * * ***** "The principal purpose of the 2d section is to prevent un- just discrimination between shippers. It implies that, in decid- ing whether differences in charges, in given cases, were or were not unjust, there must be a consideration of the several ques- tions whether the services rendered were 'like and contem- poraneous,' whether the kinds of traffic were 'like,' whether the transportation was affected imder 'substantially similar circum- stances and conditions.' To answer such questions, in any ease coming before the commission, requires an investigation into the facts ; and we think that Congress must have intended that what- ever would be regarded by common carriers, apart from the operation of the statute, as matters which warranted differ- ences in charges, ought to be considered in forming a judgment whether such differences were or were not 'imjust. ' Some charges might be unjust to shippers — others might be unjust to the carriers. The rights and interests of both must, under the terms of the act, be regarded by the commission. "The third section forbids any undue or unreasonable pref- erence or advantage in favor of any person, company, firm, corporation, or locality ; and as there is nothing in the act which defines what shall be held to be due or imdue, reasonable or un- reasonable, such questions are questions, not of law, but of fact. The mere circumstance that there is, in a given case, a prefer- ence or an advantage does not of itself show that such prefer- ence or advantage is undue or unreasonable within the meaning of the act. Hence it follows that before the commission can ad- judge a common carrier to have acted unlawfully, it must ascer- tain the facts ; and here again we think it evident that those facts and matters which carriers, apart from any question arising under the statute, would treat as calling, in given cases, for a preference or advantage, are the facts and matters which must be considered by the commission in forming its judgment whether 166 Equality IN Rates. [§81. such preference or advantage is undue or unreasonable. AVlien the section says that no locality shall be subjected to any undue or unreasonable prejudice or disadvantage in any respect what- soever, it does not mean that the commission is to regard only the welfare of the locality or community where the traffic orig- inates, or where the goods are shipped on the cars. The welfare of the locality to which the goods are sent is also, under the terms and spirit of the act, to enter into the question. "The same observations are applicable to the 4th section, or the so-called long and short haul provision, and it is unneces- sary to repeat them." The Supreme Court mentioned the long and short haul clause in the case of Parsons v. Chicago & N. W. Ry. Co.,"*" merely to show that it was not violated. It was again before the court in Int. Com. Com. v. Detroit, G. H. & M. Ry. Co.,'' where it was held that the section relates only to transportation by rail and charges therefor, and that it was not violated by granting free cartage on delivery of goods at the end of the longer haul and refusing the same privilege to the shorter haul. In the Troy Alabama Case,''' the Supreme Court held that competition between rival routes which affects rates must be considered in determining whether or not the circumstances and conditions w-ere substantially similar under section four of the act, though such competition was not a pertinent fact in consid- ering discrimination under section two. It was there said by Mr. Justice Shiras : "We are unable to suppose that Congress intended, by the 4th section and the proviso thereto, to forbid the common car- riers, in cases where circumstances and conditions are substan- tially dissimilar, from making different rates until and unless the commission shall authorize them so to do, much less do we think that it was the intention of congress that the decision of the commission, if applied to, could not be reviewed by the courts. The provisions of section 16 of the act, which author- izes the court to 'proceed to hear and determine the matter speed- »" Parsons v. Chicago & N. W. Ey. ^ Int. Com. Com. v. Alabama M. Co., 167 U. S. 447, 42 L. Ed. 231, E. Co., 168 U. S. 144, 42 L. Ed. 414, 17 Sup. Ct. 887. 18 Sup. Ct. 45. '^ Int. Com. Com. v. Detroit, Gr, H. & M. Ey. Co., 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. § 81.] Equality in Kvtes. 167 ily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises, and to this end, such court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition,' extend as well to an inquiry or proceeding under the 4th section as to those arising under the other sections of the act. ' ' After reviewing the evidence, the order of the commission was set aside. Tliis decision puts it in the power of rail carriers to practically destroy the force of section four. If competition of rival lines will relieve from the section, it is always possible for the line that reaches the longer distance point, and not the shorter, to make such competition as will release from the obliga- tion of the statute the carrier that serves both points. This re- sult is clearly pointed out by Mr. Justice Harlan in his dissent- ing opinion, as follows: ''I dissent from the opinion and judgment in this case. Taken in connection with other decisions defining the powers of the Interstate Commerce Commission, the present decision, it seems to me, goes far to make that commission a useless body for all practical purposes, and to defeat many of the important objects designed to be accomplished by the various enactments of Con- gress relating to interstate commerce. The commission was es- tablished to protect the public against the improper practices of transportation comj^anics engaged in commerce among the sev- eral states. It has been left, it is true, with power to make re- ports, and to issue protests. But it has been shorn, by judicial interpretation, of authority to do anything of an effective char- acter. It is denied many of the powers which, in my judgment, were intended to be conferred upon it. Besides, the acts of Congress are now so construed as to place communities on the lines of interstate commerce at the mercy of competing railroad companies engaged in such commerce. The judgment in this case, if I do not misapprehend its scope and effect, proceeds upon the ground that railroad companies, when competitors for inter- state business at certain points, may, in order to secure traffic for and at those points, establish rates that will enable them to accomplish that result, although such rates may discriminate against intermediate points. Under such an interpretation of 168 Equality in Rates. [§ 81. the statutes in question, they may well be regarded as recogniz- ing the authority of competing railroad companies engaged in interstate commerce — when their interests will be subserved thereby — to build up favored centers of population at the ex- pense of the business of the country at large. I cannot believe that Congress intended any such result, nor do I think that its enactments, properly interpreted, would lead to such a result." In the Behlmer Case,'^' the commission having erred in refus- ing to consider any competition other than that originating at the point of shipment, the order of the commission was set aside, and as the petition was by a private individual, in behalf of him- self and others similarly situated, the order was without preju- dice to further proceedings before the commission. Similarly, in East Tenn., Va. & 6a. Ry. Co. v. Int. Com. Com. and Clyde S. S. Case,** a material fact not having been considered by the conmiission, its order was not enforced, but the commission was left free to make further investigation of the facts in accordance with the law announced by the court. In this case the Supreme Court had under consideration as a circumstance establishing a difference in conditions, the fact that one railroad by making low rates to Nashville had forced the carriers reaching Nashville through Chattanooga to make a rate to Nashville less than the rate to Chattanooga, a shorter haul. The facts upon which the Supreme Court based its conclusion are stated as follows : "The lower rates accepted by the carriers engaged in the transportation of eastern merchandise to Nashville via Chatta- nooga are not forced upon them by any water competition at the former place. In performing this service for the compensation fixed by the present tariffs, these carriers are not affected by the circumstance that water communication exists between Cin- cinnati and Nashville. The Nashville rate is independent of the lines operating through Chattanooga, and those lines have no voice in determining its amount. The rate is made by the all- rail carriers via Cincinnati, and their action is controlled by the defendant lines. The competition which the latter meet at Nashville is distinctly the competition of the trunk lines and the ^Louisville & N. E. Co. v. Behl- L. Ed. 719, 21 Sup. Ct. 516. See mer, 17-5 U. S. 648, 44 L. Ed. 309, also Int. Com. Com. v. Clyde S. S. 20 Sup. Ct. 209. Co., 181 V. S. 29, 45 L. Ed. 729, 21 ^East Tenn., Va. & Ga. Ey. Co. Sup. Ct. 512. V. Int. Com. Com., 181 U. S. 1, 45 § 81.] Equality in Rates. 169 Louisville & Nashville sytem, whose northern termini are at points on the Ohio River which receive trunk line rates on east- ern shipments. The competitors of the defendants for this Nash- ville traffic, therefore, are the railroads from the Atlantic sea- board reaching Nashville by way of Cincinnati, etc., all of which are interstate carriers subject to the act to regulate com- merce. These carriers established rates and united in joint tariffs from eastern points to Nashville long before the lines through Chattanooga engaged in the Nashville business. The acceptance of the rates so fixed by the rail lines via Cincinnati was the necessary condition upon which the lines via Chattanooga could compete for Nashville traffic." The only limitation placed upon the carriers' right to make, by an unusual rate, competitive conditions justifying the disre- gard of the long and short haul clause is stated in the course of the opinion, as follows: "That, as indicated by the previous opinions of this court, there may be cases where the carrier cannot be allowed to avail of the competitive condition because of the public interests and the other provisions of the statute, is of course clear. What par- ticular environment may in every case produce this result can- not be in advance indicated. But the suggestion of an obvious ease is not inappropriate. Take a case where the carrier cannot meet the competitive rate to a given point without transporting the merchandise at less than the cost of transportation, and therefore without bringing about a deficiency, which would have to be met by increased charges upon other business. Clearly, in such a case, the engaging in such competitive traffic would both bring about an unjust discrimination and a disregard of the public interest, since a tendency towards unreasonable rates on. other business would arise from the carriage of traffic at less than the cost of transportation to particular places. But no con- dition of this character is here in question." In the LaGrange Case,''^ in which J\Ir. Justice Harlan again dissents, the actual geographical facts would appear to raise the same rate situation as that existing in the Social Circle Case, supra. In the LaGrange Case, however, the order of the com- " Int. Com. Com. v. Louisville & 1047, 23 Sup. Ct. 687. N. R. Co., ]90 U. S. 273, 47 L. Ed. 1(0 Equality IN Rates. [§ 81. mission was not enforced, the court, through ]Mr. Justice White, saying : "Clearly, if, disregarding the competition at Atlanta, the higher rate had been established from New Orleans to the con- competitive points within the designated radius from Atlanta, the inevitable result would have been to cause the traffic to move from New Orleans to the competitive point (Atlanta), and thence to the places in question, thus bringing about the same rates now complained of. It having been established that com- petition affecting rates existing at a particular point (Atlanta) produced the dissimilarity of circumstances and conditions con- templated by the -Ith section of the act, we think that it inev- itably followed that the railway companies had a right to take the lower rate prevailing at Atlanta as a basis for the charge made to places in territory contiguous to Atlanta, and to ask, in addition to the low competitive rate, the local rate from At- lanta to such places, provided thereby no increased charges re- sulted over those which would have been occasioned if the low rate to Atlanta had been left out of view. That is to say, it seems incontrovertible that in making the rate, as the railroads had a right to meet the competition, they were authorized to give the shippers the benefit of it by according to them a lower rate than would otherwise have been afforded. True it is, that by this method a lower rate from New Orleans than was exacted at La Grange obtained at the longer distance places lying between La Grange and Atlanta, but this was only the result of their prox- imity to the competitive point, and they hence obtained only the advantage resulting from their situation. It could be no legal disadvantage to LaGrange, since, if the low competitive rate prevailing at Atlanta had been disregarded, and the rate had been fixed with reference to IMontgomerj^, and then the local rate from thence on, the sole result would have been, as we have pre- viously said, to cause the traffic to move along the line of least resistance to Atlanta, and thence to the places named, leaving LaGrange in the exact position in which it was placed by the rates now complained of." In the Griffin Case,^° Judge Speer discusses the authorities at length, and concludes with the following observations : "Shall the millions they have invested in railroads from their 3" Brewer v. Central of Ga. E. Co., 84 Fed. 258. § 81.] Equality in Rates. 171 own means, to afford to the state great systems of transportation, result in their ruin? Shall government undertake the impos- sible, but injurious, task of making the connnercial advantages of one place equal to those of another ? It might as well attempt to equalize the intellectual powers of its people. There should be no attempt to deprive a commmiity of its natural advantages, or those legitimate rewards which flow from large investments, business industries and competing systems of transportation to facilitate and increase commerce. The act to regulate commerce has no such purpose. ' ' In Interstate Commerce Commission v. "Western & A. R. Co.,^^ Judge Ne^^^nan, having under consideration a case complaining of rates to certain local points in Georgia as compared with a less rate to Atlanta, the longer distance point, discusses the de- cisions of the Supreme Court, with the exception of the Social Circle Case, which he probably regarded as having been in ef- fect overruled, and cites the reports of the commission, together with circuit and circuit courts of appeals decisions, from all of which he arrives at a conclusion which seems to be an accurate statement of the law. His conclusions are thus stated: ''It is sho^^^l hy the evidence and by the record that competi- tion at Atlanta is active and effective, and controls in the making of the rates in controversy to Atlanta, and that there is little or no competition at any of the local points as to which complaint is made by the Georgia commission. Consequently, the haul to Atlanta is not under circumstances and conditions substantially similar to those at the other localities, and therefore the fourth section of the act is not violated. ''There is nothing whatever in the evidence or in the record from which it can be justly concluded that the rates to any of the local points named are, in and of themselves, unjust and un- reasonable, in violation of the first section of the act. "The evidence fails to show that the rates complained of vio- late the third section of the act. The only complaint made, and all that the evidence shows, is that the rate to Atlanta, the longer distance point, is less than the rate to these shorter dis- tance points; and as the rate to Atlanta is shown to have been brought a]}out by, and to be the result of, active competition at that point, it cannot be held to be a preference which is undue ''' Int. Com. Com. v. Western & A. R. Co., 88 Fed, 186. 172 Equality IX Rates. [§81. or unreasonable in favor of Atlanta, or to subject the local points named to any undue or unreasonable prejudice or dis- advantage." It would seem that the dissenting opinion of ^Mr. Justice Har- lan, supra, more nearly applies the legislative intent than that arrived at by the majority of the court. Bvit it should be re- membered that, as has been said by the Supreme Court,* the act to regulate commerce was experimental, and its purpose was not to prevent, but promote, competition. Competition of markets is a force that carriers can not disregard, it affects all transporta- tion to a greater or less extent. As said by Arthur T. Hadley, Railroad Transportation, p. 65: ''The wheat of Dakota, the wheat of Russia, and the wheat of India come into direct com- petition. The supply at Odessa is an element in determining the price at Chicago. . . . Cabbages from Germany contend with cabbages from IMissouri in the markets of New York." Xor does this lower rate to the competitive point injure the non-competi- tive point, so long as there is any profit in the competitive rate. This point is clearly pointed out in the La Grange Case, supra, The higher rate for the local haul is sometimes necessarj^ in order that a community may have railroad transportation. To quote again from Hadley 's Railroad Transportation, at p. 115: "Suppose it is a question whether a road can be built through a country district, lying between two large cities, which have the benefit of water communication, while the intervening district has not. The rate between these points must be made low to meet water competition ; so low that if it were applied to the whole business of the road it would make it quite unprofitable. On the other hand, the local business at intermediate points is so small that this alone can not support the road, no matter how low or how high the rates are made. So that, in order to live at all, the road must secure two different things — the high rates for its local traffic, and the large traffic of the through points which can only be attracted by low rates. If the commimity is to have the road, it must permit the discrimination." The burden of proof to show dissimilarity in circumstances is on the carrier.*' "Line" used in the statute means a physical ^ Spartanburg Board of Trade v. 304, 2 I. C. K. 193. Eichmond & D. K. Co., 2 I. C. C. K. § 82.] Equality in Rates. 173 line, not a mere business arrangement."" The State of Kentucky provided a long and short haul clause in its constitution, by which in no case, without the permission of its railroad commis- sion, granted after special investigation, could a carrier make a greater charge for a shorter than a longer haul. This law the Supreme Court held valid when both the long and short haul were within the state,'" but invalid M'hen the longer was an in- terstate haul." § 82. Discrimination between car loads and less than car loads. — A differential between car load and less than car load ship- ments is not prohibited by the act to regulate commerce, and the commission has said :*' " It is a sound rule for carriers to adapt their classifications to the laws of trade. If an article moves in sufficient volume, and the demands of commerce will be better served, it is reasonable to give it a car load classifica- tion and rate. The care load is probably the only practicable unit of quantity." Whether or not there should be a differ- ential and, if any, what, between car loads and less than car loads depends upon the facts and circumstances in each particu- lar case. One of the most important facts to be considered is the difference, if any, in the cost of service. Noyes, in his excellent work on American Railroad Rates " says: "Shipments in car load lots furnish a large paying freight relative to dead weight, and smaller proportionate ex- pense for loading and unloading, billing and collecting, than small shipments." The differential, like a rate, should be rea- sonable and should be fixed with a view to the just interests of all concerned and the adjustment of this difference rests primar- ily with the carriers." This principle has been very generally recognized by carriers. As shown by Prof. Adams, in Railways in the United States in 1902, part 2, pp. 32, 33, 39, in official ^^ Boston & A. E. Co. v. Boston & R. E. Co., 3 I. C. C. E. 473, 2 I. C. L. E. Co., 1 I. C. C. E. 158, 1 I. C. E. 752. E. 500, 571; Daniels v. Chicago, E. "Noyes, American Eailroad I. & P. E. Co., 6 I. C. C. E. 458, 476. Eates, 73. *" Louisville & N. E. Co. v. Ken- " Business Men 's League of St. tucky, 183 U. S. 503, 46 L. Ed. 298, Louis v. Atchison, T. & S. F. Ey. 22 Sup. Ct. 95. Co., 9 L C. C. E. 319, 358, 359, 368; "Louisville & N. E. Co. v. Eu- California Com. Asso. v. Wells hank, 184 U. S. 27, 46 L. Ed. 416, Fargo Ex. Co., 14 L C. C. E. 422; 22 Sup. Ct. 277. Scofield v. Lake S. & M. S. E. Co., ♦' Thurber v. New York C. & H, 2 I. C C. E. 90, 2 I. C. R. 67. 114: Equality IN Rates. [§82. classification tcrritoiy 79.95 per cent, of all commodities take a less rate on car loads than on less than car loads. This per cent, had increased to this point in 1902 from 14.11 per cent, imder the classification of 1887. In the western classification territory in 1882 only 17.88 per cent, of the commodities were given a car load rating, while in 1902 the percentage had reached 70.79. In southern classification territory the percentage of commodities taking a car load rating was in 1876, 5.93 per cent., and in 1902 such percentage had reached 65.61. This progressive recogni- tion of the law that it is discrimination to charge for a less ex- pensive movement the same as for a more expensive one, would seem to justify the hope that this form of discrimination may eventually be abolished. While the commission has power to prevent discrimination, it has never exercised such power to compel a ear load rating. In Duncan v. Nashville, C. & St. L. R. Co., 16 I. C. C. R. 590, the commission recognized "that dif- ferentiation by the carriers of car loads from less than car loads in the application of rates may be warranted under certain con- ditions," but declined "to enter an affirmative order establish- ing a differential." This question has already been discussed ante section 63, where was pointed out some of the reasons why the rate should be less when freight moves in car loads than when it moves in smaller lots. There is no equitable reason for a dif- ferent rate per car on car loads and train loads." It has been held ^^ in England that a railway company cannot legally charge a greater sum for the carriage of a package containing several parcels belonging to different persons than for a package con- taining several parcels all belonging to one person. The Eng- lish rule was held by the majority of the commission, Mr. Com- missioner Lane writing the opinion, to be the law in the United States." To this rule Commissioners Knapp and Harlan dis- sented. The question coming before the circuit court. Circuit "Burlington, C. E. & N. Ey. Co. <^ Calif ornia Com. Asso. v. Wells V. Northwestern Fuel Co., 31 Fed. Fargo Ex. Co., 14 I. C. C. E. 422; 652; Paine Bros. v. Lehigh V. E. Export Shipping Co. v. Wabash E. Co., 7 I. C. C. E. 218. Co., 14 I. C. C. E. 437, and cases *" Crouch V. G. N. E. Co., 11 Ex. cited in the prevailing and dissent- 742, 2.5 L. J. Ex. 137, Baxendale v. ing opinions. Judson on Interstate L. & S. W. Ey., 4 H. & C. 130, 35 Commerce, § 157. L. J. Ex. 108, L. E. 1 Ex. 137, 12 Jur. (N. S.) 274, 14 L. T. 26, 14 AV. E. 458. § 83.] Equality in Rates. 175 Judges Lacombe, Ward and Noyes adopted the dissenting opin- ion of Mr. Commissioner Knapp.^^ It is difficult to see what in- terest a carrier has in the question of whether or not the several packages constituting a car load of freight belong to one or more persons. When only one bill of lading is issued and only one person is dealt with, why should a carrier ask as to the title to the several parcels? Does not the rule announced by the court, supra, open an opportunity for illegal devices? Suppose a shipper claims he ovma all the packages and they are billed to one consignee, it would, in some cases, be impossible to prove that the shipper's statement was not true. In a case where a shipper concealed the true ownership, he would get a car load rating, while the more honest shipper would pay the higher rate. Discrimination refers to the matter of carriage and character of the commodity, not to the question of title. If the shipments move in the same way, with the same expense to the carrier, and are of like kind of traffic, it should make no difference whether the shipper is the real owner or only trustee for the real OA\Tiers. § 83. Classification of commodities should he without discrim- ination. — Classification of commodities, like any other act of the carrier affecting the rate to be charged, must be reasonable and such classification must be based on a real distinction." Unless the distinction is real, it would violate section two of the inter- state commerce act and discriminate between ''like kinds of traffic." A uniform classification would be much better than the difference now existing in that respect and the commission "has sought as far as practicable to secure the establishment through- out the country of a uniform classification of freight.'" For a description of the different classifications in use in the United States and an interesting and useful discussion of the question, see Chapter IV, Noyes American Eailroad Rates. Classification is necessary. We have seen section 54 ante, that low class traf- fic of prime utility and moving in large quantities demands a low rate. The principles of classification are so important and are so clearly stated by Prof. Henry C. Adams, Statistician of the Interstate Commerce Commission," that it is valuable to reproduce them here : "Delaware, L. & W. R. Co. v. »° Duluth Shingle Co. v. Dulnth Int. Com. Com., 166 Fed. 499. etc. H. Co., 10 I. C. C. R. 489, 504. " Stowe-Fullor Co. v. Pennsyl- " Railways in United States in yania Co., 12 I. C. C. R. 215, 220, 1902, part 2, pp. 14, 15. 176 Equality IN Rates. [§83, ^'Principles iindcrJijing freiglit classifications. — It was discov- ered early that tlie charges for transportation of different arti- cles of freight could not be apportioned among such articles with regard alone to the cost of carriage. The basis of determining the charges, it was foimd, would confine to narrow limits the movement of different articles whose bulk or weight was large in comparison to their value, Avhile heavier articles with less bulk would be made to pay disproportionately low rates. "Under the system of apportioning the charges strictly to the cost, some kinds of commerce which have been very useful to the country and have a tendency to bring different sections into more intimate business and social relations could never have amounted to any considerable magnitude, and in some cases could not have existed at all, for the simple reason that the value at the place of delivery would not equal the purchase price with the transportation added. The traffic would thus be precluded, because the charge for carriage would be greater than it could bear. On the other hand, the rates for the carriage of articles which, with small bulk or weight, concentrated great value would, on that system of making them, be absurdly low when compared to the value of the articles, and perhaps not less so w^hen the comparison was with the value of the service in transporting them. "Acocrdingh^ it was found not to be unjust to distribute the entire cost of service among all articles carried on a basis that gave greater consideration to the relative value of the service than to the cost. Such a method w^ould be most beneficial to the country; it w^ould enlarge commerce and extend communication, and would be better for the railroads because of the increased traffic which would be brought to them. "The value of the article carried under this system would be the most important element in determining what freight charge it should bear. Other considerations, however, equally important must not be overlooked when the freight classification is to be made. The classifications as now constructed have for their foun- dation the following elements : "The competitive element or the rates made necessary by competition. "The volume of the business — that is. the tonnage movement. "The direction in which the freight moves, that is. whether it § 83.] Equality in Rates. 177 moves in the direction in which most of the freight is transported or in the reverse direction in which empty cars are running. "The value of the article. "The bulk and weight. "The degree of risk attending transportation. "The facilities required for particular or special shipments. "The conditions attending transportation, such as furnishing special equipment, as in the case of private dressed-beef cars or cars specially adapted for freight of a perishable nature, or cars of large size for freight of extraordinary bulk. "Another condition which has also received consideration is the analogy which the new articles to be classified bear to other articles found in the classification. "The conditions under which railroad companies can afford to transport traffic have a large influence in determining the classification. "These are the general rules imder which classifications are constructed, and w^hile to a large extent controlling, the classi- fications are, notwithstanding, in a great measure a series of compromises, the participants in which are not alone the rail- roads, but also the shippers and representatives of business in- terests throughout the country, the latter being afforded ample opportunity to join with the railroads in the discussion as to the proper classification of articles of shipment affecting their in- terests. ""While the pressure for reductions is very strong from certain localities, concessions are not now so readily granted, as the territory covered by the freight classifications is so large that great care in the assignment of articles to particular classes must be taken in order to avoid working an injury to any particular section. The commercial and transportation interests are re- garded as identical, and the welfare of the whole territory and all interests affected must be considered. It is, however, occa- sionally observed that particular localities are, to some extent, preferentially served by the action of carriers who resist pro- posed changes in the classification for the reason that, in their opinion, they will operate to the prejudice of certain patrons. Thus exceptions to the classification are created by a road con- tinuing to carry some articles' at one class, while, in the opinion of a majority of the roads using tlie classification, the articles could well stand a higlier rating." 178 Equality IN Rates. [§83. Should a miiforiu classification i"osult from the efforts therefor now being put forward, the benefit would extend to both carriers and shippers. AVe now have three general classifications: First. Tlie official classification, "which, speaking generally, applies north of the Ohio and Potomac Rivers and east of Chi- cago and the Mississippi River. Second. Southern classification, ap]ilying generally to the territory south of the Ohio and Potomac Rivers and east of the Mississippi River. Third. The Avestern classification, applying to that territory not included in the other two classifications. Besides the three general classifications referred to there are classifications published by the railroad commissions of the States of Illinois, Iowa, Georgia, North Carolina and Florida, apply- ing locally on shipments moving between points in those states. Between points in the State of Texas the western classification governs in connection with an exception sheet published by the railroad commission of that state. There is also a classification knowTi as the New England Freight Classification, which gov- erns the class rates between points on the eastern, western and northern divisions of the Boston and J\Iaine Railroad. The commission has the power to prohibit a classification that works a discrimination. This power was exercised by the com- mission and a forcible and illustrative opinion written by Mr. Commissioner Knapp in Proctor & Gamble v. Cincinnati, H. & D. Ry. Co.^" This order of the commission was enforeed.^^ The Supreme Court, Mr. Justice "White delivering the opinion, con- cluded the discussion of the question by saying : "Whatever might be the rule by which to determine whether an order of the commission was too general W'here the case with which the order dealt involved simply a discrimination as against an individual, or a discrimination or preference in favor of or against an individual or a specific commodity or commodities or localities, or as applied to territory subject to different classi- fications, w^e think it is clear that the order made in this case was within the competency of the commission, in view of the nature and character of the wrong found to have been commit- ted and the redress which that wrong necessitated. Finding, '-9 I. C. C. E. 440. Int. Com. Com., 206 U. S. 142, 51 ^Cincinnati, H. & D. Ey. Co. v. L. Ed. 995, 27 Sup. Ct. 648. § 84.] Equality in Rates. 179 as the commission did, that the classification by percentage of common soap in less than car load lots operating throughout official classification territory, brought about a general disturb- ance of the relations previously existing in that territory, and created discriminations and preferences among manufacturers and shippers of the commodity and between localities in such territory, we think the commission was clearly within the au- thority conferred by the act to regulate commerce in directing the carriers to cease and desist from further enforcing the class- ification operating such results." § 8-4. Milling in transit. — The Interstate Commerce Act in force prior to the amendment of June 29, 1906, was construed as giving the commission no power to compel carriers to grant the privilege known as milling in transit.^* This privilege is de- scribed and its legality discussed by Llr. Commissioner Prouty as follows : '' "Generally in its application the raw material pays the local rate into the point of manufacture ; when afterwards the manu- factured product goes forward it is transported upon a rate which would be applicable to that product had it originated in its manufactured state at the point where the raw material was received for transportation, whatever has been paid into the mill being accounted for in this final adjustment. Under this or some equivalent arrangement at the present time grain of all kinds is milled and otherwise treated in transit ; flour is blended, cotton is compressed, lumber is dressed and perhaps otherwise manufactured; live stock is stopped off to test the market. ''It may be argued with much force that the act to regulate commerce does not sanction arrangements of this kind and the commission early in its history intimated that such might finally be its conclusion. Crews v. Richmond & D. R. Co., 1 I. C. C. Rep. 401, 1 Inters. Com. Rep. 703. Such practices were, how- ever, in use to a considerable extent at the time of the passage of the act and since then they have become universal. To abro- gate these privileges would be to confiscate thousands and probably millions of dollars in value by rendering worthless industrial plants which have been constructed upon the faith of '"Diamond Mills Co. v. Boston & "^'Central Yellow Pine Asso. v. M. R. Co., 9 I. C. C. R. 311. Vicksburg, S. & P. R. Co., 10 I. C. C. R. 193, 213, 214. ISO Equality IN Rates. [§85. their continuation. Nor is it a forced construction of the statute to hold that when the product finally goes forward to the point of consumption it but completes the journey upon which it en- tered when the raw material was taken up. There can be no doubt that the application of this principle has cheapened the cost of transportation and probably of manufactiire. The com- mission finally held, In re Unlawful Rates in the Transporta- tion of Cotton, 8 I. C. C. Rep. 121, that cotton might be com- presed in transit." The commission has said : ^ "The stopping of a commodity in transit for the purpose of treatment or reconsignment is in the nature of a special privilege Avhich the carrier may concede, but which the shipper can not, in the present state of the law, demand as a matter of lawful right. Carriers may not, however, discriminate between markets nor between individuals in the granting of such privileges." In the Diamond Mills Case, supra, the commission said: "A complete system of interstate railway regulation would probably give the regulating body authority to determine when privileges of this kind should be accorded, and upon what terms, for they all enter into and are really part of the rate." The Hepburn amendment has given to the commission the right and power to regulate these matters. Section one of the act to regulate commerce as it now exists " provides : ' ' The term 'transportation' shall include * * * * all instrumentalities and facilities of shipment or carriage * * * * and all services in connection with the receipt, delivery^, elevation, and transfer in transit * * * * storage and handling of property transport- ed," and it shall be the duty of every carrier subject to the pro- visions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto. Under this amended law the commission has rec|uired milling in transit to be extended so as to prevent discrimination. ^ § 85. Rebilling illegal and discriminatory. — Rebilling is a privilege granted to certain markets and consists of the right to ship a commodity from the point where it is produced to a '° St. Louis Hay and Grain Co. v. ^"* Corn Belt Meat Producers' Mobile & O. E. Co., 11 I. C. C. E. Asso. v. Chicago, B. & Q. E. Co., 14 90, 101. I. C. C. E. 376. ^Post sec. 500. § 85.] Equality in Rates. 181 distributing market where the shipper may unload, sort and clean the commodity, thereafter shipping the same amount of the same kind of commodity to his customers, not at the local rate from the distributing point to the final destination but at the balance of the through rate. Commissioner Prouty illus- trates the practice at Kansas City as follows:^" "During the period covered by this investigation, which was from April 1st to July 7th, 1896, and for a considerable period prior thereto, the rate on corn from Kansas City to Chicago was 20 cents per 100 pounds. Hutchinson, Kansas, is a station upon the Santa Fe Railway, which runs from there through Kansas City to Chicago, 111. The through rate from Hutchinson to Chicago was 25 cents, and the local rate from Hutchinson to Kansas City 13^ cents. A shipper from Hutchinson would forward a car load of corn to Kansas City and pay the local rate of 13^ cents. If afterwards he concluded to send this car load on to Chicago he might ship it by the Santa Fe Road, or by any other road between the two points, at the balance of the through rate from Hutchinson. The Chicago & Alton Rail- road, for instance, would transport this car load of corn from Kansas City to Chicago, not for 20 cents per 100 pounds, but for 11^ cents. If the grain was sold at Kansas City, the purchaser succeeded to the right of sending it forward at the reduced rate. "When the shipper shipped this car load of corn to Kansas City he had, as an ordinary thing, no idea or purpose as to its ultimate destination. It might be eaten in Kansas City; it might be sent to the Chicago market, or it might go to the Gulf ; there was nothing upon any of the papers connected with its transportation to indicate what its destination beyond Kansas City was, or that it was destined to any point beyond ; but if he did subsequently elect to ship it beyond Kansas City, the rate to any point he might select was the difference between the through rate from Hutchinson to the point of destination and the local rate which he had already paid from Hutchinson, and this rate was always different from the rate between Kansas City and the point of destination. "The result, of course, was that nearly all grain was shipped into Kansas City upon a local bill of lading in the first instance ^•Re Alleged Unlawful Rates and Grain, 7 I. C. C. R. 240, 241, 242, Practices in the Transportation of 247. 182 Equality IN Rates. [§85. and was afterward sent forward, if it finally went forward, upon a new bill of lading at the balance of the through rate. The difference between the through rate from the point of origin to the point of destination and the local rate from the point of ori- gin to Kansas City was not the same in all cases, nor, indeed, in most eases, and consequently the balance of the through rate con- tinualh^ varied." In the same case the practice was declared illegal and this rule was stated : "An indispensable element in every through shipment would seem to be a contract for such through service ; an agreement be- tween the parties at the inception of the carriage that the freight shall be transported to the point of destination at the through rate." Its disapproval of the practice was indicated by the commis- sion in the cases of Mayor etc. of "Wichita v. Atchison, T. & S. F. Ry. Co., 9 I. G. C. R. 534, and Canon Falls Elevator Co. v. Chicago etc. R. Co., 10 I. C. C. R. 650. The Supreme Court has indicated that such practice is discriminatory, and that when shipments are made at the balance of the through rate, carriers are estopped to say that such balance is not a fair rate on all traffic. That court, speaking through ]\Ir. Justice Brewer, said" "Under the guise of a rebilling rate, the Vicksburg merchant who dealt with this western road was given a rate of Sy2 per cent, on any grain that he might see fit to ship to Meridian. "While it may be true that a local railway's share of an inter- state rate may not be a legitimate basis upon which a state rail- road commission can establish and enforce a purely local rate, yet, whenever, under the guise or pretense of a rebilling rate, some merchants are given a low local rate, the commission is justified in making that rate the rate for all. It is not bound to inquire whether it furnishes adequate return to the railway company, for the state may insist upon equality, to be enforced under the same conditions against all who perform a public or quasi public service." In Duncan v. Nashville, C. & St. L. R. Co., 16 I. C. C. R. 590, the commission, speaking through IMr. Commissioner Clements, «• Alabama & V. E. Co. v. Eail- U. S. 496, 51 L. Ed. 298, 27 Sup. road Commission of Mississippi, 203 Ct. 163. § 85.] Equ.vlity in Rates. 183 describes the practice and states the conclusion of the commis- sion as follows: "It is contended by defendants that rebilling or reshipping is on the same basis as milling in transit and similar privileges. There is no case before us in this case against milling in transit, but it appears from the record that the privilege of milling in transit is accorded uniformly throughout the southeastern terri- tory and is in no sense applied to Nashville or any other par- ticular point alone. "We are not convinced that the circumstances and condi- tions under which the reshipping privilege is accorded at Nash- ville are so dissimilar from those obtaining at the other points involved in this traffic as to justify giving it our sanction on that ground. However, there are other aspects independent of this which lead us to regard this privilege with disfavor. "Illustrating the second feature of the complaint as to the alleged illegality of this privilege, the following example is given : A Nashville dealer buys 2 cars of grain, 1 at IMemphis and 1 at Louisville. He pays, up to Nashville on a IMemphis car, 11 cents per 100 pounds and on the Louisville car 10 cents. Should this Memphis car burn, after being put in the ware- house, or be sold at Nashville, he would have two expense bills and one car of grain. Should he sell a car at Atlanta, the Nash- ville merchant would naturally use the Memphis bill which shows a payment of 11 cents, paying the balance of the through rate from Memphis to Atlanta of 9 cents. He has, therefore, shipped the Louisville car to Atlanta for a total of 19 cents, when the through rate from Louisville to Atlanta is 24 cents and the combination of locals 27 cents. It is further alleged that as con- siderable grain is consumed in Nashville there is always a sur- plus of expense bills which may be manipulated in order to secure a cheaper rate than that provided in the tariffs. In an- swer to this defendants say that the operation of the reshipping privilege, as described in this example, is limited by the fact that the Memphis car of grain is worth more to the dealer at Nash- ville than the St. Louis car, by reason of the difference in the freiglit rate, and, therefore, Memphis grain is not sold at Nash- ville proper, but is all reshipped to the southeast. It is to be noted tliat the tariffs of the carriers contain a rule which pro- hibits trading in expense bills, and it is hardly probable that 184 Equality in Rates. [§ 86. such a rule would appear if the nianipuhition of expense bills is impossible, as contended by defendants. "While this manipulation of expense bills may not be prac- ticed to the extent apprehended by complainants, we may re- mark that prohibitions of law are not invariably directed against illegal acts because they may be numerous; a statute may be considered equally necessary by the legislature to prevent spor- adic or isolated acts in contravention of public policy. A prac- tice or privilege which permits the movement of a single ship- ment at less than the rate lawfully applicable to such move- ment is one which the commission has, under the law, no alter- native but to condemn. "In considering a practice at Kansas City similar to the one under consideration (Alleged Unlawful Rates and Practices, 7 I. C. C. 240), it was found that the practice of handling grain in connection with this privilege was manifestly open to many abuses. On several occasions the commission has considered practices of a more or less similar nature and has uniformly re- garded them with disfavor. In the case above referred to the finding was based upon the fact that the movement upon which the through rate was applied was in no essential sense a through movement, and we find the same to be true with respect to re- billing or reshipping at Nashville. The grain upon its arrival at Nashville loses its identity, and in everj^ respect may be re- garded as a local shipment. There is hardly a single incident of a through shipment involved in the transaction — the bill of lading is local, the rate is local, and there is nothing upon paper connected with the transaction indicating that the grain is to be carried beyond Nashville. If it is the intention to carry it beyond, there is no present idea as to the point of destination. "We are of the opinion that the reshipping or rebilling privi- lege and the application of rates thereunder obtaining at Nash- ville is an illegal device by means of which grain, grain pro- ducts, and hay may be transported at less than the tariff rate ap- plicable thereto; and further, that it gives to Nashville undue and illegal preference and advantage and subjects other points in the southeast to unjust and unreasonable prejudice and dis- advantage." § 86. Discrimination by making payments to elevators and others elevating and sacking grain. — Elevator payments mean that when a carrier brings grain to the markets from the pro- § 86.] Equality in Rates. 185 ducing territory and delivers it to an elevator to be sacked and graded, it pays the elevator for sueli service a stated amount. In some cases the same payment is made to stores and ware- houses having sacking facilities. When the matter first came before the commission, it was not declared illegal,"' though there Mr. Commissioner Lane dissented in a strong opinion. Subse- quently, in the same case, the particular allowance then under investigation was declared unlawful.''" The whole practice was declared illegal in Traffic Bureau Merchants Exchange of St. Louis V. Chicago, B. & Q. R. Co.,"^ where Mr. Commissioner Prouty concludes his opinion as follows : "It is true that this service costs the railroad company but little and is of much greater value to the shipper who receives it. This goes to the convenience and not to the quality of the transaction. It may be in the interest of economy that the car- rier should render this service for the shipper. We do not now hold that connnercial elevation may not properly be furnished by a railroad, but we do hold that such elevation must be charged for at what it is reasonably worth. "We hold that a railroad company by extending a privilege of value to one member of the shipping public, when that privi- lege in the nature of things is not desired and can not be used by other members of the public, is thereby guilty of a discrim- ination in favor of the one who can and does use the privilege. This discrimination may or may not be undue, according to the circumstances of each case. In the great majority of instances such discriminations are not in fact unlawful. But upon the facts now before us the granting of free commercial elevation or the payment of an elevation allowance must be held an undue discrimination and therefore unlawful. Such an allowance by the Union Pacific at Omaha is not open to the whole public, but only to those members of the public who have occasion to use an elevator at Omaha. "The defendants in this case will be ordered to cease and de- sist from such payments at Kansas City and other ]\Iissouri River points. In order that sufficient time may be allowed to prevent any disturbance of business conditions this order will •" Re Allowances to Elevators by »- 14 I. C. C. E. .315. 17. P. E. Co., 10 I. C. C. E. 309, 12 «» 14 I. C. C. E. 317, 331. I. C. C, E. 85, 93. 186 Equality in Rates. [§ 86. not take effect until October 1, and the tariffs of the defendants withdrawing the allowance must be filed upon thirty days' no- tice." Mr. Commissioner Harlan concurs in the result, though not in all the inferences that might be drawn from the opinion. The authorities are discussed and reparation allowed for discrim- ination caused by this payment in Nebraska, Iowa, Grain Co, V. Union Pac. R. Co.*^ The latest case condemning the practice is that of Duncan v. Nashville, C. & St. L. Ry. Co., 16 I. C. C. R. 590. The effective date of these several orders prohibiting elevator payments has been by the commission extended to January 1, 1910. F. H. Peavey & Co. and others have filed in the circuit court of the United States for the Western Division of the West- em District of Missouri their complaint against the Union Pa- cific Railroad and the members of the Interstate Commerce Com- mission seeking to enjoin the commission from enforcing its order and to enjoin the railroad from obeying it. This suit is still pending imdetermined. The purpose of the act to regulate commerce being, as said by the Supreme Court : "^ ' ' It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to pre- vent unjust and unreasonable rates, was to secure equality of rates to all, and to destroy favoritism, these last being accom- plished by requiring the publication of tariffs, and by prohibit- ing secret departures from such tariffs, and forbidding rebates, preferences and all other forms of undue discrimination. To this extent and for these purposes the statute was remedial and is, therefore, entitled to receive that interpretation which reason- ably accomplishes the great public purpose which it was enacted to subserve;" it is difficult to see any equitable or legal basis for payments by carriers for services performed by shippers for the benefit of themselves. These elevator payments were shown in the Duncan Case, supra, to have been made not only to ele- vators but to warehouses and even stores having sacking facil- ities. Such payments are made at some cities and denied to others. Some men ship grain M'ho can not obtain the payments because they may not have "sacking or elevator" facilities. « 15 I. C. C. E. 90. Int. Com. Com., 200 U. S. 361, 391, «= New York, N. H. & H. E. Co. v. 50 L. Ed. 515, 521, 26 Sup. Ct. 272. § 87.] Equality in Rates. 187 The discrimiuation violates both sections two and three of the act to regulate commerce. There is no reason why all grain shipped should bear a total of rates high enough to enable car- riers to return under the name of an elevator allowance to the o^^^lers of a portion of that grain part of the rate paid under the name of an elevator allowance. § 87. Cars must be furnished without discrimination. — Mr. Commissioner Knapp expresses the rule clearly, as follows : °* "The act to regulate commerce contains no provision which expressly or by proper implication gives this commission juris- diction in cases merely shoA\ing delay or negligence in the re- ceipt, forwarding or delivery of property offered for transporta- tion, and this necessarily includes failure on the part of the car- rier to furnish cars for the movement of freight within a reason- able time. The regulating statute does, however, prohibit any unjust discrimination or wrongful prejudice, in the provision of cars or other transportation facilities, as well as in the fixing and application of transportation charges. This prohibition is found in the third section, which forbids in general terms imdue or unreasonable preference or prejudice, advantage or disadvan- tage, for or against persons, localities or particular kinds of traffic, in anj^ respect whatsoever. Every shipper is legally enti- tled to fair opportunity and treatment in the use of these public utilities, and any discrimination which in substantial degree de- prives such shippers of such use must be considered imjust, un- less forced by justifying conditions. The burden of proof is upon the complainant to the extent of showing discrimination, and then upon the carrier to show that the discrimination was justified." The question has been before the courts a number of times. These cases are cited post section 574. A typical case is that of United States ex rel. Pitcaim Coal Company v. Baltimore & 0. R. Co., 165 Fed. 113, C. C. A. The relator in that •^Eichmond Elevator Co. v. Pere v. Cincinnati & M. V. E. Co., 10 I. Marquette E. Co., 10 I. C. C. E. 629, C. C. E. 47 ; Thompson v. Pennsyl- 6.36, 6.37. For other cases illustra- vania E. Co., 10 I. C. C. E. 640; ting the rates adopted by the com- Hawkins v. Wheeling etc. E. Co., 9 mission with reference to the dis- I. C. C. E. 212; Glade Coal Co. v. tribution of cars, see Gallogly v. Baltimore & O. E. Co., 10 I. C. C. Cincinnati, H. & D. E. Co., 11 I. C. E. 226, and cases there cited and C. E. 1; Eaton v. Cincinnati, H. & discussed. D. E. Co., 11 I. C. C. E. 619; Parks 188 Equality in Rates. [§ 87. case claimed that the railroad was not supplying him with his proper proportion of cars and prayed a writ of mandamus. It was shown that: "First. All cars placed at the mines for the fuel or supply coal of the Baltimore & Ohio Railroad are not charged against the percentage to which the mines furnishing such coal are en- titled. "Second. New mines are allotted an arbitrary number of cars, daily or weekly for development. "Third. When foreign railroad companies — that is, com- panies other than the Baltimore & Ohio Railroad Company — send their o\^'n cars for fuel or supply coal to mines on the Baltimore & Ohio Railroad, such cars are treated as arbitrary, and are not cliarged against the percentage of the mines to which they are sent. "Fourth. Cars owned by individual companies or opera- tors, and commonly known as 'individual cars,' are placed at the mines of the owners for shipment of their coal, and are not charged against the percentage of such mines. "Fifth. "Whenever a shipper on the Baltimore & Ohio Rail- road ships cars to Curtis Bay, a tidewater terminal of the Baltimore & Ohio Railroad, and such cars are handled promptly in any one month, such shipper is allowed in the succeeding month a premium of fifty (50) per cent, of the number of cars so shipped, in addition to his regular percentage. "Sixth. At certain points which are noted on the sheets of the Baltimore & Ohio Railroad, showing a distribution of cars on a percentage basis, an arbitrary number of cars is assigned to mines on fire. "Seventh. Certain mines in the immediate vicinity of indus- trial plants are given an arbitrary allotment of cars which are empty and intended for loading at such industrial plants, if the cars, w^hen loaded with coal, are to be consigned to such indus- trial plants. "Eighth. "When annual contracts are placed for foreign rail- road fuel or supply coal with mines on the line of the Baltimore & Ohio Railroad, and cars are furnished by such foreign road for shipment of fuel or supplj'" coal, then the Baltimore & Ohio Railroad Company allots to the mine shipping such coal an arbi- trary allotment of cars out of its equipment equal to the foreign cars furnished for such fuel or supply coal. § 87.] Equality in Rates. 189 "After the foregoing arbitrary cars are allotted and assigned to the mines on the Baltimore & Ohio Railroad, the remaining ears, it is claimed by the Baltimore & Ohio Railroad Company, are divided among all the mines or operators, including those enjoying the arbitrary' allotment of cars aforesaid, on the per- centage basis." The opinion of the court is able and exhaustive and cites au- thorities supporting the conclusions reached. Quotations from the opinion are given because they show a clear statement of the legal principles applicable to car distribution. In the course of the opinion, these principles are announced : "The purpose of the provisions of the interstate commerce act relating to this controversy is to prevent the railroad from giving any undue or unreasonable preference or advantage to any mine owner in any respect whatever. Section 1 of the act, as we have stated, makes it the plain duty of the railroad to furnish transportation upon reasonable request. The duty is im- posed upon the railroad, and it was clearly the intent of the framers of the act that the railroad should, upon reasonable re- quest for the same, furnish vehicles for transportation. This duty in no sense of the word rests upon the shipper, but relates solely to the carrier. In this instance, as in the case in the enactment of almost every statute, there must have been strong reasons for the passage of this act. It is obvious, from even a casual reading of the statute, that at the time of its enactment certain shippers were imable to operate their mines so as to de- velop them, owing to the lack of car service, due to the unequal distribution of cars among those who were engaged in operating coal mines, and it was to correct this inequality that legislation of this character was deemed to be advisable and expedient. While the interstate commerce act is intended to regulate rates as well as facilities, there is no question of a rate involved in this proceeding. "We are called upon to deal with facilities, and therefore it is not necessary to discuss the question as to the in- tent and meaning of the statute in so far as it relates to the regulation of rates. "In passing upon the questions involved, it should be borne in mind that the statute casts upon the carrier the plain duty of furnishing a fair and equitable distribution of facilities to the shipper. The duty thus enjoined can not be evaded by the car- rier by claiming that it is not the owner of a portion of the cars 190 Equality in Kates. [§ 87. carried over its lines. The dnty of furnishinsj equal facilities relates to and involves purely the question of transportation, and when we are called upon to determine as to whether in any- particular instance there has been an undue and unreasonable discrimination or preference as contemplated by the statute, the sole question is as to whether the entire equipment operated over the lines of the carrier has been fairly and equally distributed among all the shippers along its lines who are similarly situated. The defendant mine OA\"ners insist that in the purchase of in- dividual cars they have expended a considerable sum of money, which thereby becomes a part of their investment and should be treated as such, and that it would be unfair to them to require the carrier to charge such cars as a part of the percentage to which they are entitled. This is a matter which we cannot con- sider, inasmuch as the statute was not enacted for the purpose of promoting the interests of any particular mine owner; it being limited to one purpose, to wit, the fair and equal dis- tribution of car service by railroads or transportation compan- ies among all mine OA^Tiers similarly situated within the terri- tory in which their lines are operated. "It is made the duty of the carrier to move the product of the shipper, and in doing so, if the carrier should by any means deny to a particular shipper his just and proportionate share of facilities as compared with other shippers similarly situated, then, in that event, the shipper would undoubtedly be entitled to the relief afforded by section 23 of this act. If, as in this in- stance, a carrier, by contractual agreement, operates individual cars belonging to mine owners as a part of its equipment, such arrangement cannot in the slightest degree relieve the carrier of the duty to furnish equal facilities to all shippers similarly situated. To adopt any other rule would be to make it possible for wealthy mine o\Miers, by the purchase of car equipment, to utilize the means of transportation operated by the carrier to such an extent as to practically deprive other mine o^-ners sim- ilarly situated of any means of transportation, and it was to avoid this very kind of discrimination that the provisions of sec- tions 1 and 3 of the interstate commerce act were enacted. There is nothing in the interstate commerce act which prohibits a car- rier from making any arrangement it may choose as respects the o^Miership of cars which it operates on its lines. This is a matter which is left entirely with the carrier; but, while such is the § 87.] Equ.vlity in Rates. 191 case, it is equally true that tlie carrier cannot, by any such ar- rangement, by indirection, accomplish that which is prohibited by the statute. "We do not think it was the purpose of the framers of the act to undertake to secure the same development of each mine, but rather to place the various shippers upon an equal footing in so far as shipping facilities were concerned. To any one who is acquainted with the coal business it will be readily seen that, under any system of car distribution which places a particular mine owner in a position where such o^\Tier is unable to make prompt delivery of the product of his mine, such failure on the part of the shipper to receive his proportionate share of cars must necessarily result in placing him at a great disadvantage and in a position where it woiild be practically impossible to operate his mine, and all this to the very great injury of the consumer, who, imder such conditions, is from necessity com- pelled to purchase from the favored shipper, at higher prices, or, at least, with suppressed competition, because the favored shipper can alone, under such conditions, guarantee and secure to him steady and imiform shipments of fuel absolutely neces- sary, in most cases, for the successful conduct of his business. ******** "It is insisted that the Fairmont Company has large con- tracts, and therefore it must have a preference in cars by which it might keep its contracts. This contention is untenable. If this condition of affairs could be pleaded in justification of a discrimination in favor of a particular mine owner on the part of the carrier, then the provisions of sections 1 and 3 of the act would be without force, and those mine owners who were favored by the carrier with an unlimited supply of car service would be in a position to go upon the market and solicit busi- ness with little or no competition, thereby rendering it impos- sible for the weaker companies to successfully compete in the open market with their more favored competitors. "It was earnestly insisted by counsel for defendants below that in a case like the one at bar the rule that surrounding cir- cumstances and conditions were to be taken into account in de- termining whether there had been an undue and unreasonnl)le preference in the meaning of section 3 should control, and that the circumstances and conditions shown in this case are such as to justify the defendant in making the preference in question. 102 Equality in Rates. [§88. That the snrronndinc: eireniiistaneos and conditions are to be considered in deterniining whetlier tliere lias been an nndne and unreasonable preference in favor of another particular shipper is undoubtedly true; but in determining that question it neces- sarily follows that Ave should consider the circumstances and conditions surrounding the shipper, and not those that may happen to surround the carrier. If this were a case where we were called upon to deal with the question of rates as between rival lines, we would have to consider the peculiar conditions and circumstances surrounding the carrier; but that question is not involved in this proceeding. * * * * ******** "In determining as to Avhether there has been an undue and unreasonable preference in any particular instance, the sole question to be considered is as to whether all the cars hauled over the carrier's lines have been prorated so as to give each and every shipper on his lines his proportionate share of facil- ities to which he is entitled on the basis agreed upon as the means by which there should be a fair and equal distribution of such car service. Therefore, when we consider the statute, the provisions of which are plain and immistakable, we are impelled to the conclusion that the arbitrary allotment of the fuel cars of the company and foreign fuel cars is violative of the pro- visions of the act. Section 1, among other things, provides that : " 'Cars shall be furnished irrespective of ownership or any contract, express or implied, for the use thereof.' "This makes it the duty of the company to furnish cars, re- gardless of ownership or of any contract, express or implied. Therefore the question as to the ownership of the cars or the purposes for -which they are used can have no bearing in this controversy. In other words, in a proceeding instituted pur- suant to section 23 of the act, it would not be a good defense for the railroad company to insist that it was using a portion of its cars for the purpose of transporting fuel, and was. therefore unable to give to the relator its pro rata share of cars upon the basis agreed upon. ************* In determining the percentage of cars to which each mine is entitled, the railroad company should be guided solely by the physical capacity of the mine to furnish coal for shipment." § 88. Rig-ht of carrier to route shipments beyond its own term- inus. — In the absence of a contract specifying the routing, the § 89.] Equ^UvIty in Rates. 193 carrier may route freight passing beyond its o\\ii lines over any other reasonably convenient line. If there is a contract on the subject, the carrier must, of course, comply therewith. In the absence of instructions, the carrier should route by the most di- rect and cheapest route." There was nothing in the act to reg- ulate commerce before the amendment of June 29, 1906, that would make illegal a contract by which an initial carrier reserved to itself, as a condition of guaranteeing the through rates, the right of routing the shipment beyond its owti line as it might determine.'" The Hepburn amendment, not prohibiting such right nor specifically granting the power to the commission to prohibit same, the carrier may yet exercise the right, provided, of course, no undue or unjust discrimination results to shippers thereby. The commission now has the power to establish through routes and joint rates in the absence of reasonable or satisfactory through routes. This power, however, does not prevent the car- rier from establishing its own through route when the one it does establish is reasonable. § 89. Discrimination in billing. — An imjust discrimination may be committed by billing one commodity under a classifica- tion to which it does not belong by giving it a false weight, and by letting one commodity go at the net weight and denying that privilege to a like kind of traffic. This species of discrimination and other like devices and means is prohibited by section 10 of the act to regulate commerce (see post, § 529). The prohibition of the statute applies to the shipper as well as the carrier. The net weight practice was in effect a rebate,"' as is the other prac- tices mentioned, all of which are but devices violating the act, and subjecting those who are guilty to punishment. The of- fense is committed when the goods are billed.™ A shipper who, by misrepresentation, obtains a lower classification and rate than he is entitled to, is liable to the carrier for the difference between the rate paid and the rate he should have paid under a proper billing.'' Those who in good faith by mistake incor- ■" Dewey Bros. Co. v. Baltimore '^ Proctor & Gamble v. Cincinnati, & O. R. Co., 11 I. C. C. R. 481; II. & D. R. Co., 9 I. C. C. R. 440, Hennepin Paper Co. v. Northern 484. Pac. R. Co., 12 I. C. C. R. 535. '"Davis v. United States, 104 Fed. •« Southern Pac. Co. v. Int. Com. 1 36. 4.3 C. C. A. 448. Com., 200 U. S. 536, 50 L. Ed. 585, "^ Missouri, K. & T. R. Co. v. 26 &up. Ct, 330. Trinity Co. Lumber Co., 1 Tex. Civ, App. 553, 21 S. W. 290. 104 Equality IX Eates. [§90. rectl}^ describe goods are not subject to the penal provision of the act." § 90. Tariffs of rates must he printed, posted and maintained. — No carrier can engage in interstate transportation of goods "unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published." The act requires not only the filing and publishing of such "rates, fares and charges," but demands tliat the published tariffs must be charged and collected. (See post, §§ 513 to 519). No change in the tariff can be made without reasonable notice. No provisions of the act are more effective to prevent discrimination and promote equality than are these. The courts and the com- mission have sustained and enforced these provisions. It has sometimes been contended that they are unjust when applied to import or export traffic. It is true that such provisions would be inapplicable to purely water traffic. It is little or no more expensive for a ship to carry her full, than it is to carry her minimum cargo. For this reason, as a ship's sailing day ap- proaches and her cargo has not been obtained, she does and should be allowed to reduce her rates, thereby obtaining her full load. This principle, however, does not apply to that part of a through export or import movement that is had over rail car- riers. Ships, as well as individuals, are entitled to Imow what the land movement will cost and to have this cost based upon equality of charge. There is nothing in the law that makes the rail carrier transport its domestic freight at the same rate as its proportion of an import or export movement." On this sub- ject the commission, in its twenty-second annual report, pp. 14 and 15. says: "Effective April 15. 1908, and in exact harmony with the de- cision of the commission in the case of Cosmopolitan Shipping Company v. Hamburg-American Packet Company et al., 13 I. C. C. Rep., 266, a regulation was promulgated by the commission requiring that tariffs applying on traffic exported to or imported from foreign coimtries not adjacent to the United States must show the rates, fares, and charges of the inland carriers subject to the act for such transportation to the port and from the port "Atchison, T. & S. F. Ey. Co. •' Tex. & Pac. Ey. Co. v. Int. V. Goetz, 51 111. Appl. 1.51; Davis v. Com. Com., 162 U. S. 197, 40 L. Pere Marquette E. Co., 10 I. C. C. Ed. 940, IG Sup. Ct. 666. B. 405. § 90.] EQU.U.ITY IN Rates. 195 in the United States, and that such rates, fares, and charges be so stated as to be available for all persons who desire to use them. It was provided that as a matter of convenience to the public such tariffs might show through rates to or from foreign points, but that if so prepared they should also show the inland rate or fare of the carrier subject to the act. "Representations were made to the commission that transcon- tinental rail carriers reaching our Pacific coast ports were, on account of the long rail haul, at a disadvantage in competition with other carriers serving Atlantic ports and transporting Asi- atic traffic via the Suez Canal route. They therefore requested modification of the requirements as to notice of changes in rates, and were given permission to make changes in their rates appli- cable to such import and export traffic to or from our Pacific coast ports upon notice of three days of reduction in rates and of ten days as to advances in rates. Subsequently, by supple- mental order, the same permission was extended to carriers sub- ject to the act reaching Pacific coast ports in British Columbia. "The rail carriers in the United States ordinarily known as the transcontinental lines withdrew, effective November 1, 1908, all their through import and export rates via the Pacific ports and applied to the inland carriage of export and import traffic through those ports the domestic rates applicable on traffic to and from the ports proper. The Canadian Pacific Railway, in connection with a large number of carriers in the United States with lines east of the Mississippi River, published and filed pro- portional class and commodity inland rates applicable to Van- couver, British Columbia, on traffic destined to oriental ports, the Phillipines, Australia, and New Zealand, which proportional rates are much lower than the domestic rates applying on traffic destined to Vancouver proper. These tariffs, as permitted by the commission's rule and for the information of shippers, show through rates to foreign ports in connection with certain named steamship lines. "The rule of the commission was freely commented upon in the newspapers, but almost without exception from an entirely er- roneous standpoint and a total misunderstanding or misconcep- tion as to what the rule required. No opinion was expressed by the commission that the inland portion of export and import rates might not reasonably and properly be less than the domes- tic rates to the ports. The order simply required the carriers 196 Equality in Rates. [§ 90. to conform to the plain requirements of the law and to publish, in the manner prescribed by law, whatever rates they saw fit to establish on this traffic." If a carrier makes a mistake and quotes the wrong rate, the shipper must nevertheless pay the correct tariff rate, even though he suffer severe loss thereby, and for this loss he has no remedy .'' In Poor v. Chicago, B. & Q. R. Co., 12 I. C. C. R. 418, 421, 422, Mr. Commissioner Harlan gives the reason for this decision as follows : ''And of necessity no other conclusion was possible if the in- tegrity of this regulative legislation is to be preserved. If a mistake in naming a rate between two given points is to be ac- cepted as requiring the application of that rate by the carrier, the great principle of equality in rates, to secure which was the very purpose and object of the enactment of these several stat- utes, might as well be abandoned. If the act of a railroad clerk, whether through mistake or otherwise, in quoting a less than the lawful rate or in inserting a lower rate in a bill of lading is to be held to require or to justify and excuse the substitution of that rate, on a particular shipment, for the lawfully published rate, the effectiveness of such legislation is at an end and its whole purpose destroyed. For past experience shows that bill- ing clerks and other agents of carriers might easily become ex- perts in the making of errors and mistakes in the quotation of rates to favored shippers, while other shippers, less fortunate in their relations Avith carriers and whose traffic is less important, would be compelled to pay the higher published rates. ''Stability and equality of rates are more important to com- mercial interests than reduced rates. It was instability and in- equality that were the special evils to be remedied ; it was the possibility that one shipper, in one way or another, whether by mistake or otherwise, could, and actually did, get a lower rate ■*Tex. & Pac. Ey. Co. v. Mugg, Dumas, 43 S. W. 609; Chicago, E. 202 U. S. 242, 50 L. Ed. 1011, 26 I. & P. Ey. Co. v. Hubbell, 54 Kans. Sup. Ct. 628; Gulf C. & S. P. E. 232, 38 Pac. 266, 5 I. C. E. 241; Co. V. Hefley, 158 U. S. 98, 39 L. Pond-Decker Lumber Co. v. Spen- Ed. 910, 15 Sup. Ct. 802; Poor cer, 86 Fed. 846, 30 C. C. A. 430; Grain Co. v. Chicago, B. & Q. E. Mobile & O. E. Co. v. Dismukes, 94 Co., 12 I. C. C. E. 418, 421, 422; Ala. 131, 10 So. 289, 4.1. C. E. 200; Suffern, Hunt & Co. v, Indiana, D. Atchison, T. & S. F. Ey. Co. v. & W. Ey. Co., 7 I. C. C. E. 255, Holmes, 18 Okla, 92, 90 Pac. 22. 278; Houston & T. C. E. Co. v. § 90.] Equality ix Rates. 197 than another shipper that led to the more stringent legislation. That evil the present amended statute meets in substantially the language of previous legislation." While Mr. Commissioner Harlan is undoubtedly correct in his conclusion as the law now stands, the ruling is one that may and does frequently work serious injury to shippers. On this subject the commission, in its twenty-second annual report, pp. 16, 17, aptly says : "The act to regulate commerce requires carriers to collect their published rates, under severe penalty, and the Supreme Court of the United States has held that this must be done even though the carrier has quoted to the shipper a different rate, in good faith, upon which the shipper has acted. "The practical hardship of this rule is illustrated by the last case in which it was applied by that court. Texas and Pacific Railway Company v. Mugg. 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628. Here the plaintiff applied for a rate on coal from a point in Arkansas to a point in Texas and was quoted a rate of $1.25 upon one kind and $1.50 upon another. Upon the strength of this quotation he made sale of three carloads for a delivered price at the Texas point. In fact, the published rate was $2.75 upon one kind and $2.85 upon the other, and the shipper was obliged to pay upon the arrival of the coal in Texas $140.18 more than would have been due under the rates quoted. This converted the transaction from a profit to a loss, and his suit was to recover damages thus occasioned. The court, as has already said, held that no recovery could be had. "The statute -requires carriers to post for public inspection their tariffs at all stations where freight is received by them for transportation. The theory of the act is that the shipper can at all times by reference to these schedules ascertain for himself the rate, and if this were so there would be no hardship in re- quiring him to know what the rate was. In practice all this is quite different. The tariffs of railways are very voluminous. It has been found practically im])ossible to comply with the lit- eral requirement of the statute as to posting. The present reg- ulations of the commissicm permit carriers in most cases to keep on file in their offices at their various stations tariffs showing their outbound rates, but the const ruction of these scliedules is necessarily such that the ordinary shipper without sjx'cial ex- perience can not, in the great majority of instances, ascertain for 198 EqumjIty IN Rates. [§91- himself from an inspection of the tariffs what the rates are. He must rely upon the statement of the railroad agent. The pre- sumption of law that he himself knows or may know the rate is not in accordance with the fact. "The commission feels that to require the shipper to ascer- tain for himself at his peril the rate imposes upon him an undue burden. The railwaj^ should know what its established charges are, and may fairly be required to state in writing, when a writ- ten request is made by the shipper, the rate which it has pub- lished and maintains in force. "VVe call special attention to this matter as one of immediate and general concern, which discloses the need of an appropriate remedy, and urgently request that a suitable measure be promptly enacted." It is undoubtedly true that shippers ordinarily do not know and it would some times take an expert to find out what a par- ticular rate is, and, therefore, reliance must be had on the in- formation furnished b^^ the agenis of the carriers. The com- mission points out the evil but suggests no remedy. It would probably be an effective remech^ to allow the commission to award reparation in such cases as it might find were based upon an hon- est mistake of the carrier. The commission would be able to prevent the evils that ]\Ir. Commissioner. Harlan points out ; and, if necessary to prevent discrimination, the rate mistakenly given might be open to all who ship contemporaneously with the ship- per who relied on the misquoted rate. § 91. Different rates over the same line in opposite directions. — In the case of Duncan v. Atchison, T. & S. F. Ry. Co.," the commission said: "The complainant was not discriminated against in being allowed on his shipments west, to Los Angeles, the lowest avail- able rate, and there was no discrimination against him on his shipments east to Louisville, as he was charged the general rate exacted of all shippers. His complaint in reference to the disparity between the rates charged him on his east and west bound shipments, respectively, is not properly one of unjust discrimination under the third section of the act to regulate commerce, but rather calls in question the reasonableness of the higher rate. The claim is in substance, that the rate of $350 eastward is imreasonable in view of the fact that the rate over "Duncan v. Atchison, T. & B. F. 3S5. E. Co., 6 I. C. C. E. 85, 4 I. C. E. § 91.] Equality in Rates. 199 the same line and between the same points westward is only $263. This fact alone is relied upon to support the charge. The two rates have no necessary connection or relation, and the fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the same road or line and between the same points in the opposite direc- tion does not, as in the case of hauls over the same line in the same direction, establish prima facie the unreasonableness of the higher rate. This would appear to be especially true where the hauls are of as great length as those now under considera- tion. It is moreover in evidence, as remarked above, that the Svest-bound movement of the traffic termed 'emigrants' move- ables' is double the east-bound movement," and the goods ship- ped west as ''emigrants' moveables" are "materially lower in value" than those shipped east. It may be conceded that the much greater volume of the traffic moved west than east is to some extent attributable to the low^er rate west, but the tide of emigration is naturally from a comparatively old and thickly populated country like the east to a new and sparsely settled country like the west. No evidence as to the unreasonableness of this rate in itself has been offered." This ruling has been repeated several times by the commis- sion. In the Duncan Case, supra, the facts of the case showed a much heavier movement of the goods transported under the shipment there in controversy towards the west than towards the east. This fact is one of the causes that affects rates and may always be considered. The amount of traffic of a particular kind that moves in a particular direction may properly constitute a different circumstance and condition. The conclusion of the commission was correct, but what was there stated should not be accepted as a general rule. If the movement both ways is prac- tically equal and there are no other differentiating circum- stances, the fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the same road or line and between the same points in the opposite direction does, as in the case of hauls over the same line in the same direction, oslablish prima facie the unreason- ableness of the higher rate. The facts in ]\TacLoon v. Boston & M. U. Co.,'" wbile staled by '"9 I. C. C. R. 642, 645. SOO Equality IN Rates. [§91. the coiniiiission to be practically the same as in the Duncan Case, do not so clearly sn]iport the holding as did the facts in the last named case. There was no evidence as to the relative amount of traffic each way and the accommodations seemed to have been practically the same. The charge was greater going west than going east. This case would indicate a disposition on the part of the commission to make it a general rule that there is no relation between traffic in opposite directions over the same route. In Hewins v. New York, N. II. & II. R. Co.," the MacLoon Case is cited and followed. It will be conceded that circumstances may exist justifying a difiPerence in rates over the same line in opposite directions ; but in the absence of proof of such circumstances, such difference should be held prima facie evidence of unjust discrimination. Judge Speer, in Int. Com. Com. v. Louisville & N. R. Co.," quoted from the Duncan Case, supra, and announced a rule more in harmony with the purpose of the act to regulate commerce. He said: "Where the movement in a certain direction is greatly in excess of the movement in another, or where there is a substan- tial difference in the cost of operation by reason of heavy grades, or because the tonnage runs largely in one direction, it is con- ceivable that a discrimination in rates may not be unreasonable-, but do any of these conditions appear in this case? On the con- trary, by the evidence of a principal witness for the respondents the contrary is made to appear. ]\Ir. Saltmarsh, division super- intendent of the Pensacola & Atlantic Railway was asked : ' Is there any reason why the haul east over the Pensacola & At- lantic division should be more expensive than the haul over the division for the same distance west?' He replied: 'So far as the actual cost of transportation is concerned, perhaps not ; but the bulk of our business is southbound, and we have empty cars coming north. To the extent that this is the case, it would, oi course, make a difference in the cost of transportation in each direction.' Surely it cannot with good reason be urged that this would justify the tremendous difference in rates of which complaint is here made." Mr. Commissioner Clements, in Weil v. Penn. Co.,™ announces the rule in language that would indicate that the commission re- 10 I. a C. K. 221, 224. ""11 I. C. C. E. 627, 629, 630. 118 Fed. 613, 623. § 91.] Equality in Rates. 201 quires a difference in circumstances other than the mere fact that the traffic moves in opposite directions. He there said : "While the law recjuires all rates to be reasonable and just, and forbids unreasonable discriminations, it does not prescribe any measure or test of reasonableness in either case. It is manifest that the reasonableness of every rate or discrim- ination called into question must be determined and measured by the circumstances and conditions affecting the business. The potency of any particular fact, circumstance, or condition in a given case is to such an extent dependent upon or modified by others, so that that which is of great importance in one case may be of minor consequence in another. It follows that it can not be required in reason that rates must in all cases be the same in both directions between the same points any more than they can be made on a strictly uniform mileage basis." This conclusion as to the opinion of the commission is further strengthened by the language of Mr. Commissioner Clements in Phillips V. Grand Trunk AY. R. Co.,'" where he says: "Generally rates are lower for the transportation of west- bound traffic than for eastbound, although there are exceptions to this general rule. This feature in the adjustment of rates is probably due more to the preponderance of empty-car movement westward than to any other cause, though other varying causes have doubtless entered into the matter in greater or less degree in respect to different commodities. Some disparity, therefore, between the rates on eastboimd and westboimd traffic seems to be justified by the conditions resulting from the empty-car movement in one direction. Within reason, therefore, such dis- parity in rates, though a discrimination, is not unreasonable or unlawful. ****** "No satisfactory reason appears why there should be a greater disparity between the rates on the traffic in question eastbound and westbound than that which prevails on articles of substan- tially the same character in the classes; yet it is not clear on the other hand, but that a somewhat greater disparity in these rates than would be indicated by the classes might exist without unjust discrimination against the complainant. But it is clear that some readjustment of these differences is re- quired to promote the ends of justice and the requirements of «° 11 I. C. C. K. 659, 664, 665. 202 Eqitaijty in Rates. [§ 92. the law. This record, however, scarcely furnishes an adequate basis for the determination of the exact changes that should be made. "The case will, therefore, be retained with the expectation that the carriers will make a substantial readjustment of these rates in accordance with the views herein expressed." § 92. Discrimination by granting free service. — Free tickets, fares, pasvses, or free transportation for passengers are prohib- ited, with certain exceptions, by paragraph four of section one of the act to regulate commerce as amended by the act of April 13, 1908. See post § 505. The provisions requiring the tariff rates to be charged and collected would prevent the free trans- portation of property, except such as may be had under section 22 of the act, which section provides: "Nothing in this act shall be construed to prevent railroads from giving free carriage to their officials and employees." Express companies are now bound by the act to regulate commerce, and there is no exception permitting such companies to issue franks to their officers. The Supreme Court has said : *^ "The amendment to the interstate commerce act by the act of June 29, 1906, c. 3591, 34 Stat. 584, brought express com- panies within the terms of the act. The express companies were therefore obliged to file and publish their rates for the trans- portation of property under section 6 of the interstate commerce act as amended, and it is admitted in the record that they have done so. * * * * * . * "It is enough to say that it was the purpose of this law to re- quire the publication and posting of tariff rates, open to public inspection, and at the service of all shippers alike ; to prohibit and punish secret departures from the published rates, and to prevent and punish rebating, preferences and all acts of undue discrimination. As was said by ]\Ir. Justice White, speaking for the court in New York, New Haven & Hartford R. R. Co. v. In- terstate Commerce Commission, 200 IJ. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272 : " 'The all embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to *^ American Express Co. v. United L. Ed. , 29 Sup. Ct. States, 212 U. S. 522, 531, 532, 53 § 93.] Equality in Kates. 203 every metliod of dealing by a carrier by which the forbidden re- sult could be brought about. If the public purpose which the statute was intended to accomplish be borne in mind, its mean- ing becomes, if possible clearer. ' In view of the interpretation thus given to the act we think it cannot be doubted that the transportation of property, such as is shown in this case, upon franks issued by the ex- press companies, is within the terms of the act. It permits those who hold these franks to obtain the transportation of such prop- erty as is covered thereby without compensation, or, if the trans- portation has been paid, it is refunded to the shipper upon the presentation of the frank. "Within the terms used in the Elkins act, such transportation enables one class of persons to obtain transportation at a different and less rate than that named in the published rates." § 93. Commodities clause. Illegal for carriers to transport com- modities produced or owned by them or in which they are inter- ested. — The owTiership or control by carriers of a particular commodity gives such carriers an opportunity to transport such commodity and sell it at less than can its competitors who have no means of transportation and must pay the carrier to trans- port these commodities of like kind. The carrier can do this because it can lose some of the rate its competitor must pay and, therefore, undersell all others. This evil was apparent and the commission had sought to remedy it so far as it could Avith the limited power it had in this respect before the passage of the Hepburn law. Prior to the passage of the Hepburn amendment containing this clause the Interstate Commerce Commission brought its bill seeking to enjoin a contract described in the al- legation as follows : ^ "In the spring of 1903 the Chesapeake & Ohio made a verbal agreement with the New Haven to sell to that road 60,000 tons of coal, to be carried from the Kanawha district to Newport News, and thence by water to Connecticut, for delivery to the buyer at $2.75 per ton, and that a considerable portion had al- ready been delivered and the remainder was in process of de- livery. It Avas averred that the price of the coal at the mines where the Chesapeake & Ohio bought it, and the cost of trans- »^ New York, N. H. & H. E. Co. v. L. Ed. 515, 21 Sup. Ct. 272. Int. Com. Com., 200 U. S. 361, 50 204 Equality IN Rates. [§92. portation from Newport News to Connecticut, would aggregate $2.47 per ton, thus leaving to the Chesapeake & Ohio only about 28 cents a ton for carrjnng the coal from the Kanawha district to Newport News, whilst the published tariff for like carriage from the same district was $3.45 per ton." Upon this allegation, the court formulated the question in- volved as follows: "The question, therefore, to be decided is this: Has a carrier engaged in interstate commerce the power to contract and sell and transport in completion of the contract the commodity sold, when the price stipulated in the contract does not pay the cost of the purchase, the cost of delivery, and llie published freight rates?" The evils of carriers engaging in the purchase and sale of commodities transported by them was forcibly shown in the course of the opinion. No better statement of the evils the com- modity clause sought to remedy can be given than the Supreme Court here gave and such statement is here inserted : "That a carrier engaged in interstate commerce becomes sub- ject as to such connnerce to the commands of the statute, and may not set its provisions at naught whatever otherwise may be its power when carrying on commerce not interstate in char- acter, cannot in reason be denied. Now, in view of the positive command of the 2d section of the act that no departure from the published rate shall be made, directly or indirectly, how can it in reason be held that a carrier may take itself from out the statute in every case by simply electing to be a dealer and trans- port a commodity in that character? For, of course, if a car- rier has a right to disregard the published rates by resorting to a particular form of dealing, it must follow that there is no ob- ligation on the part of a carrier to adhere to the rates, because doing so is merely voluntary. The all-embracing prohibition against either directly or indirectly charging less than the pub- lished rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a car- rier by which the forbidden result could be brought about. If the public purpose wdiich the statute was intended to accomplish be borne in mind, its meaning becomes, if possible clearer. What was that purpose? It was to compel the carrier, as a public agent, to give equal treatment to all. Now if, by mere fact of purchasing and selling merchandise to be transported, a car- § 93.] Equality in Rates. 205 rier is endowed with the power of disregarding the published rate, it becomes apparent that the carrier possesses the right to treat the owners of like commodities by entirely different rules. That is to say, the exercise of such a power in its essence would enable a carrier, if it chose to do so, to select the favored per- sons from whom he would buy, and the favored persons to whom he would sell, thus giving such persons an advantage over every other, and leading to a monopolization in the hands of such persons of all the products as to which the carrier chose to deal. Indeed, the inevitable result of the possession of such a right by a carrier would be to enal)le it, if it chose to exercise the power, to concentrate in its own hands the products which were held for shipment along its line, and to make it, therefore, the sole purchaser thereof and the sole seller at the place where the products w^ere to be marketed; in other words, to create an abso- lute monopoly. To illustrate : If a carrier may, by becoming a dealer, buy property for transportation to a market and elim- inate the cost of transportation to such market, a faculty pos- sessed by no other owner of the commodity, it must result that the carrier would be in a position where no other person could ship the commodity on equal terms with the carrier in its ca- pacity of dealer. No other person owning the commodity being thus able to ship on equal terms, it would result that the owners of such commodity woukl not be able to ship, but would be com- pelled to sell to the carrier. And as, by the departure from the tariff rates, the person to whom the carrier might elect to sell would be able to buy at a price less than any other person could sell for, it would follow that such person, so selected by the carrier, would have a monopoly in the market to which the goods were transported. And that the result arising from an admis- sion of the asserted power of the carrier as a dealer to disregard the published rates conduces immediately, and not merely re- motely, to the production of the injurious results stated, is not only demonstrated by the very nature of things, but is estab- lished to be the case by the facts indisputably shown on this record. For here it is unquestioned that the Chesapeake & Ohio, as a result of its being a dealer, had become, long prior to the adoption of the interstate commerce law, and continued to be thereafter, up to the passage of the West Virginia statute pro- hil)iting a carrier from dealing in coal, virtually the sole pur- chaser and seller of all the coal produced along the line of its 206 Equality IN Rates. [§93. road. That this result was not merely accidental, but was in effect engendered by the power of the carrier to deal and trans- port a commodity, is illustrated by the case of Atty. Gen. v. Great Northern R. Co., 29 L. J. Ch. N. S. 794. In that case Vice Chancellor Kindersley was called upon to determine wheth- er dealing in coal by tlie railway company was illegal, because incompatible with its duties as a public carrier and calculated to intlict an injury upon the public. In deciding that the act of Parliament granting the charter to operate the railway im- plied a prohibition against the company's engaging in any other business, the reason for the rule was thus expressed (p. 798) : " 'These large companies, joint stock companies generally, for whatever purpose established, and more particularly rail- way companies, are armed with powers of raising and possessing large sums of money, — large amounts of property, — and if they were to apply that money, or that property, to purposes other than those for which they were constituted, they might very much injure the interests of the public in various ways.' ''Illustrating the danger to the public, as established by the case before him, the Vice Chancellor said (p. 799) : " 'Here we find this company, having the traffic from the north of England, where the great coal fields are (at least, some of the principal coal fields), supplying the coimtry with coal, or capable of supplying it ; this company buys the coal, which gives to the company an interest in checking as much as possible, those who will not deal with them ; and it is quite clear that it is possible, by the mode in which this company may (I will not say has) — but by the mode in which this company may exercise such powers as either it has or assumes to have — this company may get into their hands the traffic ; that is, the dealing in all the coal in the large districts supplying coal to the coim- try. They have, to a considerable extent, done so, and there is no reason why it should not go on progressing. I observe that in the eight (?) years from 1852 to 1857, inclusive, the amount of their coal business has increased from 73,000 tons to 794,000 tons ; and there is no reason, as the affidavits show, why they should not — there is great danger that they may — get into their hands the entire business in the coal of all that district of countr3^ If they can do that with regard to coal, what is to prevent their doing it with regard to every species of agricul- tural produce all along the line ? Why should they not become §93.] Equ.vlity IN Kates. 207 producers of corn, of all kinds of beasts, and of sheep, and every species of agricultural produce, and become great dealers in the supply of edibles to the markets of London and why not every other species of commodity that is produced in every part of the country from which or to which their railway runs? I do not know where it is to stop, if the argument on the part of the company is to prevail. There is, therefore, great detriment to the interests of the public, for this reason, taking merely the article of coal.' ''It is apparent that the construction of the statute which is now claimed by the carriers would, if adopted, not only destroy its entire remedial efficacy, but would cause the provisions of the statute to accentuate and multiply the very wrongs which it was enacted to prevent. ' ' The conclusion of the court was to direct the court below to issue a decree "perpetually enjoining the Chesapeake & Ohio from taking less than the rates fixed by its published tariff of freight rates, by means of dealing in the purchase and sale of coal." It is obvious that the evils pointed out so forcibly by the Su- preme Court apply equally where the carrier puts the owner- ship of the commodity in a corporation in which the carrier owns all the stock, and that the difference is only in degree and not in kind where the carrier has only a part of the stock in the cor- poration o^^Tiing the commodity. Congress, by virtue of its plenary power to regulate interstate commerce, sought to pre- vent these evils, and the prohibition was made to apply where the carrier had an interest, direct or indirect, in the commodity transported. This clause the circuit court held unconstitutional, but the Supreme Court, upon appeal, held the provision valid "' as construed, which construction is as follows : "We then construe the statute as prohibiting a railroad com- pany engaged in interstate commerce from transporting in such commerce articles or commodities under the following circum- stances and conditions: (a) When the article or commodity has been manufactured, mined or produced by a carrier or under its authority, and at the time of transportation the carrier has not in good faith before the act of transportation dissociated itself "^United States v. Delaware & IT. ,29 Sup. Ct. . For opinion Co., 2i3 U. S, 3G6, 415, 53 L. Ed. of lower court, see 164 Fed. 215. 208 Equality IN Kates. f§94. from such article or commodity; (b) When the carrier o^atis the article or commodity to be transported in whole or in part; (c) "When the carrier at the time of transportation has an interest, direct or indirect, in a legal or equitable sense in the article or commodity, not including, therefore, articles or commodities man- ufactured, mined, produced or owned, etc., by a bona fide cor- poration in which the railroad company is a stockholder." The construction of the law by the Supreme Court makes it easily possible for carriers to organize corporations controlled by themselves and the evils stated in the Choscipeake & Ohio Case, supra, are not lessened. This is shown by ]\Ir. Justice Har- lan in his dissenting opinion, as follows: "In my judgment the act, reasonably and properl}^ con- strued, according to its language, includes within its prohibitions a railroad company transporting coal, if, at the time, it is the owner, legally or equitably, of stock — certainly, if it owns a majority or all the stock^n the company which mined, manu- factured or produced, and then o'\\'ns, the coal which is being transported by such railroad company. Any other view of the act will enable the transporting railroad company, by one device or another, to defeat altogether the purposes which Congress had in view, which was to divorce, in a real, substantial sense, production and transportation, and thereby to prevent the trans- porting company from doing injustice to other owners of coal." Speaking of the circuit court decision, the commission in its twenty -second annual report said : "21ie Commodities Decision. The ruling by the circuit court for the third circuit that the commodities clause of the act is unconstitutional has served to embarrass and delay the fight against discrimination. A considerable number of carriers are o\^Tiers of and dealers in commodities carried by them. Such carriers succeed, in practically every case, in monopolizing, or at least dominating, the markets in which they deal. The com- modities clause, by compelling carriers to confine themselves to the transportation business, promised to give many shippers freedom from what has hitherto been crippling discrimination." § 94. Basing points and group rates. — In certain territories the carriers make a city a bnsing point. To illustrate: Atlanta, Georgia, is a basing point. Rates to to^^^ls aroimd Atlanta are the rate to Atlanta plus the rate from Atlanta to the particular town. And this is true whether Atlanta be the longer or the § 94.] Equality in Kates. 209 shorter distance point. This principle was described and sus- tained in the La Grange Case.*^ The subject of this section is also discussed ante §§ 60 and 61. The commission does not look Avith favor upon the practice. It has said : " ' ' As stated in our findings of fact, through rates made in this way — that is, composed of rates to 'basing points' and local rates back — are in pursuance of what is knoAMi as the 'basing point' system of rate-making, which, according to the evidence of the witness (Cutler), prevails 'throughout the southern ter- ritory. ' This system has been heretofore several times discussed and disapproved by the commission. Re Louisville & N. R. Co., 1 I. C. C. Rep. 84, 85, 1 Inters. Com. Rep. 278 ; Martin v. Chi- cago, B. & Q. R. Co.. 2 I. C. C. Rep. 25, 46, 47, 2 Inters. Com. Rep. 32; Re Tariffs and Classifications of A. &. W. P. R. Co., 3 I. C. C. Rep. 19, 24, 25, 46-49, 2 Inters. Com. Rep. 461. "Under this system, where the haul is through the basing point to a point beyond, the rate to the latter is the through rate to the basing point plus the local rate from the basing point on, and where, as in the present case, the haul is to an intermediate point, the rate to the intermediate point is the rate for the haul through such intermediate point to the basing point plus the local rate back over the same line. In the former case, the haul is not treated as a continuous haul through the basing point to the point beyond, but as two distinct hauls ; one a through haul to the basing point, and the other a local haul from the basing point to the point beyond; and in the latter case, not as a through haul to the intermediate point, but as a haul through the intermediate point to the basing point beyond plus a local haul back. Local hauls, as is well known, are much more ex- pensive to the carrier per mile than long through hauls, or any proportion of such through hauls. Therefore local . rates are properly made much higher for the same distance than through rates, and hence the charge of a local rate for a part of a through haul, when the extra expense of a local haul has not been in- curred, is prima facie excessive. Augusta Southern R. Co. v. Wrightsville & T. R. Co., 74 Fed. Rep. 522. "It is a significant fact that the result of this svstem of rate "Int. Com. Com. v. Louisville & "'Board of Trade of ITamptou v. N. R. Co., 190 U. S. 27.3, 47 L. Ed. Nashville, C. & St. L. R. Co., 8 1. J 047, 23 Sup. Ct. 687. C. C. R. 503, 521. 210 Equality IX Rates. [§94. making is to enable the basing point merchants to compete with the local merchants of surrounding localities at their own doors on equal terms, while the latter are debarred from such com- petition with the former, and as to territory intermediate be- tween the basing points and surrounding localities, merchants at the basing points are given such an advantage in rates as to enable them to undersell merchants at surrounding localities, and drive them out of the 'jobbing business' in such interme- diate territory, as the testimony shows has been the result in the present case. The direct tendency and almost invariable outcome of the system is that basing points are built up and flovirish at the expense of surrounding localities. The building up of one locality at the expense of another, by rates favoring the former and discriminating against the latter, was undoubt- edly one of the principal evils which the act to regulate com- merce was designed to remedy, and it would seem that due al- lowance might and should be made for the effect of competition without defeating the object of the law. "What are termed com- petitive points may be given rates relatively, or even absolutely, lower than the rates to shorter distance points, without making the rates to the latter the rates to the former plus the extra local back. There is grave reason for the conclusion that the object of the carriers in charging as a part of the through rate the local between the basing point and the surroimding local- ities is to accomplish the natural result of this system of rate- making, and that competition is used as a pretext or justification when it does not in fact necessitate such a state of things." When a city with large transportation facilities is granted the position of a basing point the carriers are but doing what com- petition compels as an alternative of not getting the business. When, however, competition does not make necessary^ this lower rate to a basing point, the charge to the shorter distance point would be discriminatory. Carriers must of necessity recognize market competition, but it is illegal for them to create a market at the expense of others with the same or similar transportation conditions. Group rates, that is the same rates to several contiguous to^^ns, rest upon the same legal principles as basing point rates. These are not necessarily illegal, but become so if they constitute undue or imreasonable preference. This is the conclusion of the com- mission.'" The English Railway and Canal Traffic Act of 1888, § 29,'' is as follows : § 94.] Equality in Rates. 211 "(1). Notwithstanding any provision in any general or spe- cial act, it shall be lawful for any railway company, for the purpose of fixing the rates to be charged for the carriage of mer- chandise to and from any place on their railway, to group to- gether any number of places in the same district, situated at various distances from any point of destination or departure of merchandise, and to charge a uniform rate or imiform rates or carriage for merchandise to and from all places comprised in the group from and to any point of destination or departure. " (2). Provided that the distances shall not be unreasonable, and the group rates charged and the places grouped together shall not be such as to create an mi due preference. "(3). Where any group rate exists or is proposed, and in any case where there is a doubt whether any rates charged or proposed to be charged by a railway company may not be a con- travention of section two of the Railway and Canal Traffic Act, 1854, and any acts amending the same, the railway company may, upon giving notice in the prescribed manner, apply to the commissioners, and the commissioners may, after hearing the parties interested and any of the authorities mentioned in sec- tion seven of this act, determine whether such group rate or any rate charged or proposed to be charged as aforesaid does not create an undue preference. Any persons aggrieved, and any of the authorities mentioned in section seven of this act, may, at any time after the making of any order luader this section, apply to the commissioners to vary or rescind the order, and the commissioners, after hearing all parties who are interested, may make an order accordingly." It has been held "^ that the English act "justifies rates which are granted on the groimd of commercial convenience," which woukl not be justified within this section. *'LaCrosse M. & J. Union v. Chi- niington & W. K. Co., 9 I. C. C. R. cago, M. & St. P. Ry. Co., 1 I. C. 17; Newland v. Northern Pac. R. C. R. 629, 2 I. C. R. 9; Lippman & Co., 6 I. C. C. R. 131, 4 I. C. R. Co. V. 111. Cent. R. Co., 2 I. C. C. 474; Detroit, G. H. & M. Ry. Co. v. R. 584, 2 I. C. R. 414; Howell v. Int. Com. Com., 74 Fed. 80.3. New York, L. E. & W. R. Co., 2 I. " Browne - & Theobald Law of C. C. R. 272, 2 I. C. R. 162; Im- Railways, 772. perial Coal Co. v. Pittsburg & L. E. ^ North Lonsdale Iron & Steel R. Co., 2 I. C. C. R. 618, 2 I. C. R. Co. v. Furriers L. & N. W. & M. 4.36; Rend v. Chicago & N. W. Ry. Ry. Co., 7 Ry. & Canal Traffic Cas. Co., 2 I. C. C. R. 540, 2 L C. R. ] 16, 60 L. J. Q. B. 419. 313; Hilton Lumber Co. v. Wil- 212 Eqialitv TN Rates. [§95. § 95. Rebates. — A rebate Avithin the meaning of the act to regulate commerce means the acceptance by a common carrier of a rate less than that provided for in its ta rill's of charges. The most frerpient method of rebating was for the carrier to exact the full tariff charge and afterwards "rebate" or pay to the shipper a portion thereof. This rebate was sometimes af- fected under the guise of a claim for damages by the shipper. In whatever form, whether openly or by the most ingenious and complicated device, all rebates arc illegal ;ind inuiisliahle luider the Elkins law. The desire to obtain e(iuality to shippers and to prevent favoritism was probably the strongest reason for the enactment of the act to regulate connnerce. By the unjust and preferential payment of rebates the incomes of carriers were re- duced and the imfortimate shipper who received no rebates had his business destroyed, while his more favored competitor thrived. The views of the Supreme Court, through Mr. Justice White, in New York, N. H. & II. R. Co. v. Interstate Commerce Com- mission, 200 U. S. 361, 391, 50 L. Ed. 515, 521, 26 Sup. Ct. Rep. 272, 277, are apposite here : "It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and un- reasonable rates, was to secure equality of rates to all and to destroy favoritism, these last being accomplished by requiring the publication of tariffs and by prohibiting secret departures from such tariffs, and forbidding rebates, preferences, and all other forms of undue discrimination. To this extent and for these purposes the statute was remedial, and is, therefore, en- titled to teeeive that interpretation which reasonably accom- plishes the great public purpose which it was enacted to sub- serve. . . . The all-embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be brought about. If the public purpose which the statute was intended to accomplish be borne in mind, its meaning becomes, if possible, clearer." Mr. Justice Day, after quoting the above remarks in the Armour Packing Co. Case,"^ said : «> Armour Packing Co. v. TJnitecl 28 Sup. Ct. 428. States, 209 U. S. 56, 52 L. Ed. 681, § 95.] Equality in Rates. 213 "The Elkins act proceded upon broad lines and was evidently intended to effectuate the purpose of Congress to require that all shippers should be treated alike, and that the only rate charged to any shipper for the same service, under the same conditions, should be the one established, published, and posted as required by law. It is not so much the particular form by which or the motive for which this purpose was accomplished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive concessions and rebates from the fixed rates, duly posted and published." In New York C. & H. R. R. Co. v. United States,™ it was con- tended that the law could not impute to a corporation the com- mission of a crime and that the conviction of a corporate com- mon carrier for rebating was illegal. This question is discussed at length, authorities cited and this conclusion arrived at : "We see no valid objection in law, and every reason in public policy, why the corporation which profits by the transaction, and can only act through its agents and officers, shall be punish- able by fine because of the Imowledge and intent of its agents to whom it has intrusted authority to act in the subject-matter of making and fixing rates of transportation, and whose knowl- edge and purposes may well be attributed to the corporation for which the agent acts. While the law should have regard to the rights of all, and to those of corporations no less than to those of individuals, it cannot shut its eyes to the fact that the great majority of business transactions in modem times are con- ducted through these bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them im- munity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would vir- tually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at. "There can be Ho question of the power of Congress to reg- ulate interstate commerce, to prevent favoritism and to secure equal rights to all engaged in interstate trade. It would be a distinct step backward to hold that Congress cannot control those who are conducting this interstate commerce by holding them responsible for the intent and purposes of the agents to whom they have delegated the power to ;ict in tlic pn>mises. " ""212 U. S. 481, 5.3 L. Ed. , 2!) Suj.. Ct. .304, 214 Equality in Rates. [§ 95. In the same styled case " the Supreme Court held that the act applied to rebates paid after it went into effect though paid under a contact made prior to its adoption. Each payment of a rebate under a general contract therefor constitutes a separate offense, though not decided whether or not each shipment made at a less than the published rate constitutes a separate offense."' The venue of suits in prosecution for granting rebates is in any federal district through which is had the transportation on which the rebate is paid."^ See also post, §§522 to 525. "When no joint tariff is filed, the sum of the local rates is the valid through rate, and a carrier who issues a through bill of lading and collects less than such rate is guilty of rebating."* "^212 U. S. 500, 53 L. Ed. , "* Chicago, B. & Q. E. Co. v. Unit- 29 Sup. Ct. 309. ed States, 157 Fed. 830. Affirmed. "= Note '"' supra. 209 U. S. 90, 52 L. Ed. 698, 28 Sup. "'Note*^' supra. Ct. CHAPTER IV. ENFORCEMENT BY THE COMMISSION OF THE ACT TO REGULATE COMMERCE. § 150. General statement of the functions of the commission. 151. Appointment and general duties of the commission. 152. Power of the commission to relieve from the long and short haul clause. 153. The commission 's duty with reference to schedules of rates. 154. Eeparation. 155. Reparation to whom paid. 156. Eeparation by whom paid. 157. Eei)aration protest unnecessary. 158. Eeparation an inadequate remedy. 159. Eeparation, limitation on complaint for. 160. Commission may make investigations without complaint. 161. Commission may ask for the aid of courts to enforce law. 162. Eehearings by the commission. 163. Commission has power to prescribe rates for the future. 164. Commission has power to make regulations which carriers must obey. 165. Commission may establish through routes and joint rates and pre- scribe the division of the joint rate. 166. Procedure before the commission. 167. Eules of procedure prescribed by the commission. 168. Forms prescribed by the commission. § 150. General statement of the functions of the commission. — In discussing the scope nncl validity of the act to regulate com- merce infra chapter one, it was seen that the commission was an administrative body, with no judicial power, that it is an agency of the legislative department of the Federal Government to which has been delegated the legislative power of prescrib- ing rates for the future. In the performance of its administra- tive duties, it exercises ceriain functions in the exercise of which it adopts forms and procedure similar to those in use by courts when enforcing the judicial powers of the government. While in a loose way it is freriuently said that the commission exer- cises quasi judicial j)o\V('rs, it can not ])e said that any of the 215 216 Enforcement by the Commission [§ 151. judicial powers conferred by the Constitution of the United States are, or can be, exercised by the commission. The duties of the commission under existing law naturally divide themselves into two distinct branches. The first of these duties are purely administrative in their nature and in the performance of which the action of the commission is not absolutely bindintz; ui)on any one, it is merely taken as prima facie evidence of the truth of their reasonableness. The second is the exercise of its deletjated legislative power and consists of prescribing rules, regulations and rates for the future. Under the first head. ui)on complaint, the commission, after hearing, may decide that the past practice of a carrier has not been in accord with the law, it may deter- mine that by such practices the complainant has l)een damaged in an amount which the commission fixes. The finding e)f the commission awarding reparation may or may not, at the option of the carrier, be obeyed. If the order therefor is obeyed, it is not that the carrier can be compelled to do so by any order of the commission, but because the carrier recognizes its justice or fears that the courts may do so. If obedience is refused, the commission, or the parties in whose favor the order is granted, may ask the judicial department of the government to lend its aid to make effective the findings of the connnission. "When the matter is brought to the attention of the proper court in such a way as to invoke its action, a hearing is had de novo, the find- ings of the commission being, by a rule of evidence prescribed by the legislative department, prima facie true. Exercising its full and unlimited judicial power, the court may give weight to the findings of the connnission like it might to any other admin- istrative body ; but the power to enforce the order is wholly in the courts. Orders of the commission to desist are discussed more fully post, § 204. In the second branch of its duties, the commission may prescribe a rule of action to govern carriers in their future conduct. AVhat force must be given to this rule will be discussed in the course of the next chapter. § 151. Appointment and general duties of the commission. — The Interstate Commerce Commission is composed of seven mem- bers, whose term of office is seven years each, and each of whom receives an annual salary of ten thousand dollars. They are appointed by the president by and with the advice and consent of the Senate. Not more than four of the commissioners may be of the same political party, and they may be removed by the § 152.] OF Act to Regi:late Commerce. 217 President for inefficiency, neglect of duty, or malfeasance in of- fice. They shall not engage in any other business, vocation, or employment. The principal office of the commission shall be in Washington, where its general sessions shall be held; but when- ever the convenience of the public or the parties may be pro- moted, 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 in- cjuiry necessary to its duties, in any part of the United States, into any matter or cpiestion of fact pertaining to the business of any common carrier subject to the provisions of the act. It shall inquire into the management of the business of all common carriers subject to the act, and is authorized and recpiirecl to enforce its provisions. It has power to require, by subpoena, the attendance of witnesses and the production of books and it may order testimony taken by depositions. Every order of the com- mission shall be forthwith served by mailing to any one of the principal officers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence of the receipt of such order by the carrier in due course of mail. It may suspend or modify its orders and grant rehearings. It has power to require reports from carriers subject to the act and to prescribe forms for accounting by car- riers. It must itself make annual reports to Congress. See §§ 500 et. seq. § 152. Power of the commission to relieve from the long and short haul clause. — The proviso of section four of the act to reg- ulate commerce gave the commission power to relieve carriers from the requirements of that section prohibiting a carrier from charging or receiving any greater compensation for the trans- portation of passengers, or of like kind of property, under sub- stantially similar circumstances and conditions for a longer dis- tance over the same line, in the same direction, than for a shorter distance over the same line, the shorter being included in the longer. This proviso was fully discussed in § 81 ante, and is annotated in § 511 post. From these sections it will be seen that any fact that makes a difference in the circumstances and conditions makes inapplicable the requirement of the section and that the proviso can only ai)[)ly to cases of like kind of traffic under substantially similar circumstances and conditions. Where, according to the construction of the statute, it does 218 Enforcement by the Commission [§ 153. apply, it is not likely the eoininission would feel called upon to grant relief. § 153. The commissions duty with reference to schedules of rates. — It is the duty of all common carriers subject to the act to regulate commerce to file with the commission, print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation both on their own line and over other lines, pipe lines and water connections with which they have established a through route and joint rate. These and other provisions showing how the schedules shall be printed and what they shall contain may be seen from section six of the act, post §§ 513 to 519. Changes in these schedules can not be made without thirty days' notice; but the commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein provided, or modify the requirements of this section in respect to publishing, posting, and filing tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. The com- mission may determine and prescribe the form in which the schedules required by this section to be kept open to public in- spection shall be prepared and arranged and may change the form from time to time as shall be found expedient. Under the power given it with respect to the schedules of rates to be charged by common carriers it issues administrative orders from time to time. These are furnished by the com- mission to the carriers, and others may obtain them from the commission. Those issued before the publication of Peirce's ex- cellent Digest of the Decisions of the Commission may be found in that book. Tariff circulars 15-A and 17- A apply to carriers other than express companies, and Tariff circular 16-A applies to express companies. Discrimination was one of the evils most complained of prior to the act to regulate commerce, and that act ''was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue pref- erence. * * * Indeed, it is not open to controversy that to provide for those subjects was among the principal purposes of the act. ****** And it is apparent that the means by which these great purposes were to be accomplished was the placing upon all carriers the positive duty to establish schedules of reasonable rates which should have a uniform ap- plication to all, and which should not be departed from so long § 153.] OF Act to Regulate Commerce. 219 as the established schedule remained unaltered in the manner provided by law. Cincinnati, N. 0. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 5 Inters. Com. Rep. 391, 16 Sup. Ct. Rep. 700, 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. Rep. 896." The above quotation is from the Abilene Case,^ in which it was held that a state court could not determine an interstate rate to be unreasonable when such rate was prescribed in a legally tiled schedule and which rate had not been declared unreasonable by the Interstate Commerce Commission. All facilities fur- nished and privileges allowed by carriers must be stated in the tariff schedules, and it is prohibited to transport freight unless the schedules of tariffs are tiled, and am^ facility furnished or privilege granted not stated in such schedule constitutes a viola- tion of the act. Where the tariff shows no joint through rate, carriers parties to a through bill of lading must collect the sum of the local rates shown by the local tariff's." "Where an agent of a carrier gives a shipper a rate less than that prescribed in the legally filed tariff, the shipper must never- theless pay the full tariff rate, even though by so doing he may be damaged ; ' and a rate in a bill of lading less than the tariff rate wdll not relieve a shipper from paying the tariff rate the shipment being interstate, although the statute of the state in which the bill of lading was issued made it illegal to collect a higher rate than was on the bill of lading specified.* That a schedule of rates has been duly filed will not prevent the com- mission from declaring such rates unreasonable and awarding reparation for the amount charged and collected in excess of what was a reasonable rate. On this point Mr. Commissioner Clements said : ° "All provisions of the act must be construed in the light of each other and be given a reasonable effect. By the first section ^ Texas & Pac. Ey. Co. v. Abilene * Gulf C. & S. F. Ey. Co. v. Hefley, Cotton Oil Co., 204 V. S. 426, 51 158 U. S. 98, 39 L. Ed. 910, 15 L. Ed. 55.3, 27 Sup. Ct. 350. Sup. Ct. 802; Spratlin v. St. L. & » United States v. New York C. & S. W. Ey. Co., 76 Ark. 82, 88 S. W. H. E. E. Co., 212 U. S. 509, 53 836; St. L. & S. W. Ey. Co. v. L. Ed. , 29 Sup. Ct. . Carden, 34 S. W. (Tex.) 145. ' Texas & Pac. Ey. Co. v. Mugg, " Nicola, Stone & Myers Co. v. 202 U. S. 242, 50 L. Ed. 1011, 26 Louisville & N. E. Co., 14 I. C. C. Sup. Ct. 628. E. 199, 204. 220 Enforcement by tee Commission [§ 154. of the act every unjust and unreasonable charge is declared to be unlawful. By subsequent provisions the commission is ex- pressly empowered to award reparation for damages or in- jury resulting from violations of the statute. While the act requires carriers to establish, file, and publish their rates and commands their strict observance, such publication of rates is not conclusive of their reasonableness. So to hold would go far toward defeating one of the leading purposes of the act. We regard the jurisdiction and authority of the commission in this respect as well settled. It is the duty of the commission in cases presented to it within the terms of the statute to award reparation for duly proven damages to the parties injured by the exaction from them of unreasonable and unjust charges for transportation, notwithstanding such charges may be in accord- ance with the published rates." § 154. Reparation. — In addition to the public penalties pre- scribed by the act, a carrier is liable to any person or persons in- jured by its violation of the act for the full amount of damages sustained in consequence of such violation, together with a rea- sonable counsel or attorney's fee, to be fixed by the court in every case of recovery. The only damages recoverable under this act by application to the commission are damages for a vio- lation of the provisions thereof, consequently the commission has no jurisdiction to award damages for breach of contract by a carrier. No reparation can be awarded by the courts for charging an unreasonable rate where the rate is specified in a legally filed schedule of rates, prior to a determination by the commission that such rate is unreasonable." The commission has no jurisdiction to award damages against a shipper, nor can a carrier set off a claim for underehanges or other damage against the claim of a shipper for reparation.' On this subject the commission has said: "It seems obvious that the commission has no authority to award set-off. The commission is not empowered to make an order requiring the complainant to pay money damages to a railroad company ; it has no general common law or equity juris- " Texas & Pac. Ey. Co. v. Abilene ' Laning-IIarris C. & G. Co. v. Cotton Oil Co., 204 U. S. 426, .51 St. Louis & S. F. R. Co., 1.5 I. C. L. Ed. 553, 27 Sup. Ct. 350; Cle- C. E. 37, 38; Falls & Co. v. Chi- ment r. Louisville & N. R. Co., 153 cago, Eock 1. & P. Ey. Co., 15 I. C. Fed. 979. See also Post §§ 527, C. E. 269, 273. 528. § 154.] OF Act to Regi'late Commerce. 221 diction, but ouly such authority as is prescribed in the act to regulate commerce. Generally speaking, the right to award set- off in an action at law is created by statute to avoid multiplicity of suits, but the right to make such award necessarily involves authority in the court to adjudicate the claims of both parties. It is clear that the commission, whose authority is in the nature of an extraordinary remedy, is not authorized to adjudicate the claim of a railroad company against a shipper, but only the claim of a shipper against a railroad company for violation of the interstate commerce law. To award set-off amoimts to the same thing as adjudicating the claim of the railroad company against the shipper, and entry of an order based upon a set-off could occur only after such adjudication. Plainly, if the com- mission is without authority to determine the rights of the par- ties, it is also poAverless to enter an order based upon a determ- ination of those rights. Therefore we conclude that the com- mission can not consider the counter claim of defendant in dis- posing of this case. " In claims for reparation a complaint must be first filed with the commission. This complaint frequently seeks to have a par- ticular rate or practice declared illegal, and in the same com- plaint asks for an order fixing the commission's finding as to the amount of damages the complainant is entitled to recover. It is not proper to divide up a complaint by first asking a find- ing that the rate or practice is illegal, and thereafter, by sup- plemental complaint, seek reparation.*' JMr. Commissioner Har- lan sajnng: "There remains for consideration the question of reparation. After this case had been fully heard and taken under advise- ment such a claim was brought to our attention by letter. No such claim is made on the original complaint, nor was the testi- mony on either side directed to any such issue. This suggests that it may be an opportune occasion to say that we are not dis- posed to try complaints by piecemeal. Nor is it i)roper, unless some reasonable ground for it be shown or the commission itself has so ordered, to bring forward a claiiii for reparation after a complaint has been heard and taken under advisement. Under all the circumstances disclosed upon this record w(; arc not in- * Dallas Freight Bureau v. Gulf, 223, 228. 0. & S. F. Ry. Co., 12 I. C. C. R. 222 Enforcemkxt by the Commission [§154. clined at this time to entertain a claim foi' reparation in con- nection with this complaint or with the rates complained of. It is suggested, however, that the rates now fixed he put in effect at once hy the defendants." While the rule stated by IMr. Commissioner Ilarlan, supra, was correct in that case, it should be remembered that proof of re- paration can not always be made on the original trial. For il- lustration : Tift and others, members of the Georgia Saw Mill Association, filed a suit to have declared illegal an advance on lumber. This advance became efifcctivc June 22, 1903, it was de- clared illegal by the commission February 7, 1905." The circuit court sustained the commission in an opinion filed June 28, 1905." The Circuit Court of Appeals affirmed the case Decem- ber 15, 1906,'' and on IMay 27, 1907, the Supreme Court affirmed the judgment of the lower courts." It was, therefore, nearly four years after the illegal advance was effective before a ship- per could definitely know that the extra amount he was paying was recoverable. While in the original case reparation was prayed, the proof of the amount could only be made after the final decision of the Supreme Court. Complaints were filed by each shipper for reparation, and on June 25, 1908, certain gen- eral principles relating to the right of recovery were announced by the commission," and on January 27, 1909, a compromise was approved by the commission." For further history of this case, shoM'ing the procedure of collecting damages under this act, see Tift V. Southern Ry. Co., 159 Fed. 555. This history is given to show that reparation can not always be proved in the original complaint. It should be prayed for, how^ever, and then after the question of the validity of the rate or practice is settled, there remains only the question of fixing the amount of damages to be awarded and the particular individual to whom the award shall be made. The delay incident to the Tift Case does not al- ways occur. In that case and its companion case, the Central » Tift V. Southern Ey. Co., 10 I. U. S. 428, 51 L. Ed. 1124, 27 Sup. C. C. E. 548. Ct. 709. ^"Tift V. Southern Ey. Co., 138 "Nicola, Stone & Myers Co. v. Fed. 753. Louisville & N. E. Co., 14 I. C. C. ^1 Southern Ey. Co. v. Tift, 148 E. 199. Fed. 1021. ".Joice & Co. v. 111. Cent. E. Co., ^ Southern Ey. Co. v. Tift, 206 15 I. C. C. E. 239. § 155.] OF Act to Regulate Commerce. 223 Yellow Pine Asso. v. 111. Cent. R. Co./' the amount of overcharge held to be illegal was more than three million dollars and the number of claimants were over four hundred. Complaints may be filed by an association in behalf of its members, who may each prove up the amount of his claim." § 155. Reparation to whom paid. — Reparation is paid to him who pays the illegal advance or exaction. For the wrong of being required to pay that which is illegal under the act, he who makes such payment has suffered legal damage to the extent of the amount paid in excess of what the law authorized. This is true although the o\\Tier of the commodity upon which the illegal rate has been paid may add such excess to the price of the com- modity. The reason of this rule is clearly and correctly pointed out by Mr. Commissioner Prouty, who says :" "The dealer in Wisconsin or at Memphis has charged sub- stantially the same price whether his sales were in the east or for export or for shipment to California, and this means, of course, that the advance in the freight rate has been added to the price paid by the consumer. The defendants say that it follows that the complainants who have paid this freight have not actually been injured. "It appeared that one witness suspended operations upon the Pacific coast owing to the advance in the rate, and other wit- nesses were of the opinion that more lumber would have been sold under the 75-cent rate. It is impossible to say, therefore, to what extent these complaints may have been actually dam- aged by the advance in this rate, if the word damage is to be in- terpreted and applied as claimed by the defendants. "Such is not, in our opinion, the proper meaning of this term. These complainants were shippers of hardwood lumber to this destination and they were entitled to a reasonable rate from the defendants for the service of transportation. An unreasonable rate was in fact exacted. They were thereby deprived of a legal right and the measure of their damage is the difference be- tween the rate to which they were entitled and the rate which they were compelled to pay. If complainants were obliged to follow every transaction to its ultimate result and to trace out "10 T. C. C. E. 505; 111. Cent. R. '"Tift case, supra. Co. V. Int. Com. Com., 206 U. S. '^ Burfjess v. Transcontinental 441, 51 L. Kc1. 1128, 27 Sup. Ct. Freifrht Bureau, 13 I. C. C. R. 6G8, 700. 679, 680. 224 Enforcement bv the Commission [§ 155. the exact coiniiu'rrial effect of the rrei<;ht rate paid, it woukl never be possible to show damages witli sufficient accuracy to justify giving them. Certainly these defendants are not en- titled to this money which they have taken from the comi)lain- ants, and they ought not to be heard to say that they should not be required to refund this amomit because the complainants themselves may have obtained some portion of this sum from the consumer of the commodity transported." The manufacturer who sells his i^roduce f. o. b. his plant pays no freight thereon, though the value of his product may be af- fected by the rate of carriage from his i)lant to the market. His damage, if any, however, is not subject of ascertainment. When he sells free on board ears at his place of business, the title passes upon delivery of the commodity to the carrier. The purchaser then owns the commodity and must pay the transportation charges thereon to whatever place he may direct shipment. Should there be loss or injury, the manufacturer would not suf- fer, but such loss or injury must be adjusted between the owner and the carrier. It may be, as already stated, that the higher rate affects the selling price at the point of manufacture, but to what extent can not be definitely ascertained. Besides, the manufacturer does not fix his selling price according to the final destination of the commodity. He frequently does not laiow where the purchaser will send the goods when the purchase is made. The purchaser may decide to use the commodity at the point of manufacture, or ship to some place where the illegal rate does not apply. These and other considerations make it ap- parent that the legal injury is suffered by the person who pays for the carriage. This does not mean the man who actually hands the money or check to the carrier. It means the one who owns the commodity while in transit and who has undertaken to deliver it at a point requiring its shipment over the lines of the carrier who collects the unlawful charge. Frequently a manu- facturer will sell his goods delivered at a particular point, but allow the consignee to pay the freight thereto, deducting the amount thereof from the purchase price of the goods. In such a case, the manufacturer has paid the freight and is entitled to recover the overcharge. The manufacturer may add the freight charges to the manufacturing cost, the jobber and the retailer may add not only such charges but a profit thereon when they sell, and in the end the consumer "pays the freight," but it § 156.] OF Act to REGin:.ATE Commerce. 225 would be impracticable to trace an overcharge to the consumer who never could make proof entitling him to a recovery. The law will not attempt to follow these speculations, but will let the carrier repay to the man, who pays for the transportation of his property, all charges above what such shipper is legally boimd to pay. These arguments are well stated by Mr. Commis- sioner Clements in the case of Nicola, Stone & IMyers v. Louis- ville & N. R. Co., 14 I. C. C. R. 199, 207, 208. In the Tift Case, pending in the United States Circuit Court for the Southern District of Georgia, the standing master has filed a report in which he arrives at the same conclusion. § 156. ReparatiQii by whom paid. — AVhere the illegal rate is a joint rate over a through route consisting of several carriers, the question arises as to what carrier or carriers must pay the reparation, and as to whether the liability is joint or several; that is, is each carrier jointly and severally liable for all the il- legal rate, or is each carrier liable for only the proportion of the illegal charge received by it? The charging of an illegal rate is a tort and all participants in such illegal act are joint tort feasors, and as such, each carrier is jointly and severally lia- ble. Where, as was found to be a fact in the Tift Case, supra, (§ 154), an illegal advance was made by a combination of car- riers by concerted and concurrent action in violation of the Sher- man Anti-Trust law, it would seem that each and all carriers who participated in the action by which the advance was made would be joint tort feasors and liable to any one who suffered dam- ages by such illegal advance. The commission does not fully agree with this proposition, and in the Nicola, Stone and IMyers Case, supra, announced the rule as follows : "The complainants contend that the defendant carriers who concurred in establishing the unlawful advance in the rates under consideration are jointly and severally liable for all the damages resulting therefrom, whether or not participating in the particular rate from which the individual overcharge re- sulted. We can not concur in so broad a view of the liability of the defendants. We do not think those carriers who received no part of the charges and who did not participate in the move- ment of the commodity sliould be liable to refund the whole or any part of the rate for 1lio movement of a shipment in wliioli they did not participate. We think that the liability is restricted to those carriers who participated in the transportation of the 226 Enforcement by the Commission [§ 157. lumber via their respective routes over wliieh the several ship- ments moved, and who shared in the transportation charges^ therefor, and that such carriers are jointly and severally liable to the persons found to be entitled to the refund." § 157. Reparation-protest unnecessary. — It is not necessary that a rate be paid under protest in order to enable a shipper paying it to recover the excessive and illegal portion thereof. This is true because the law requires no useless thing, and in no case where a rate is fixed in the schedules filed according to law, would protest avail anything. The carrier could not, if it wished, yield to the protest and charge less than the tariff rates. This question has been before the commission and has been de- cided in harmony with the principles stated.^* Disposing of the carrier's contention that protest was necessary, Mr. Commis- sioner Clements said: "In the very nature of the thing no protest is necessary where an injury is inflicted by the commission of a tort. The violation of the law produces the injury and completes the of- fense, and the person injured does not have to perform any conditions to entitle him to recover for the damage sustained. ''Again, neither the carrier nor the shipper can lawfully de- part from the published rate. Both are charged with notice of what it is, and are pimishable from deviating therefrom. It would be a vain thing to protest. The amount of the rate is fixed in the established schedule, and a penalty is imposed for charging or receiving 'a greater or less or different compensa- tion for such transportation of passengers or property.' The law looks to the substance of things and does not require useless forms or ceremonies. "Whatever may have been the rule at common law, the act to regulate commerce prescribed the duty of both the carrier and shipper, and it seems to us that: the contention now made, if adopted, would necessitate the holding that a cause of action in favor of a shipper arose from the failure of the carrier to make an agree- ment, when, if the agreement had been made, both the carrier and the shipper would have been guilty of a criminal offense, and the agreement would have been "Southern Pine Lumber Co. v. 195; Baer Bros. v. Mo. Pae. Ky. Southern Ry. Co., 14 I. C. C. R. Co., 13 I. C. C. R. 329. § 157.] OF Act to Regulate Commerce. 227 so absolutely void as to be impossible of enforcement. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 445, 51 L. Ed. 553, 27 Sup. Ct. 350. "Moreover, in view of the necessary relations between the carrier and shipper, the dependence in modern business life of the latter upon the former, the right and duty of the carrier in the first instance to fix its charges, its obligation to adhere to the same until altered in the manner prescribed by law, and its right to enforce such charges by retaining possession of the freight transported or to demand payment of the freight charges as a prerequisite to the transportation, the parties are not upon an equal footing — a condition, even at common law, necessary to sustain the requirements of a protest and to negative the idea of voluntary payment. It is also manifest that to sustain this con- tention would be to open the way to the grossest discriminations, to prevent which is one of the leading purposes of the act to regulate commerce. ' ' The holding of the commission is not in conflict with the deci- sion of the courts. It may be admitted that ordinarily where a payment is voluntarily made it can not be recovered, but where a payment must be made by force of law and where the law prescribes a particular method by which it may be determined whether or not the payment is legal, protest is neither necessary nor effective. The case of Knuclsen-Ferguson Fruit Co. v. Chi- cago, St. P., I\I. & 0. Ry. Co.,"" illustrates the distinction between charges collected under the force of a tarifi; and charges paid voluntarily. In that case, an icing charge of $45.00 was made under a tariff treating icing as a separate charge from transpor- tation, the schedules stating ''that the pviblished charge for transportation did not include the cost of icing in transit, but that the carrier would impose an additional charge for such service." Such a tariff would not comply with the present law as to filing tariffs, but it is apparent that no icing charges were specified in the tariff and a payment of such charges was not made under the force of law. Therefore, when ten days after having received his goods, the shipper voluntarily paid the icing charges the court correctly held, in a suit brought a year there- after, that he could not recover. While it is true that protest is not necessary, a shipper, when an illegal advance is made, >° 149 Fed. 973, 79 C. C. A. 483, 204 U. S. 670, 51 L. Ed. 672. 228 Enfokcemext bv the Commission [§ 158. should not oontinne paying it. Avithont objection or protest until a large claim has acciumilated against the carrier. If a suit Or complaint is filed against an advance, the j)ub]ic is, in a sense, represented by the complainants and might ])ro])erly await the determination of the question of reasonableness of the rate; but when no such suit is fihul by any one and the advance or other illegal charge is collected without protest, reparation may be limited to that arising after the filing of a complaint.'" IMr. Commissioner Prouty says : "Neither should these complainants be permitted to slumber upon their rights and to accumulate against these defendants a claim for damages which may not represent in its entirety an actual loss to the complainants. The burden of an unjust freight rate usually rests upon the consumer, who can not and does not recover. Claims for reparation should therefore be promptly presented and actively prosecuted. We shall allow the com- plainants reparation in this case in the amount of the difference between the rate actually paid and the rate of 75 cents, which is established and which is foiuid to have been a reasonable rate from the date of the filling of this i^etition, but following the ease of Thompson v. Illinois Central R. R. Co., 13 I. C. C. R. 657, no reparation will be allowed by reason of shipments made previous to the date of the filing of the complaint." § 158. Keparation an inadequate remedy. — The long and in- evitable delay in recovering payments illegally made to carriers is shown in the history of the Tift Case, supra, § 154. Because of this delay and the difificulties incident to proving reparation claims of long standing, the remedy by preliminary^ application to the commission and subsequent suit in the courts for an il- legal exaction is no sufficient and adequate remedy for the wrong caused by illegal exactions. This the commission has recognized and stated in the following language : "' "While it is certainly true that the remedy by way of dam- ages is utterly inadequate and inconsistent, it is apparently the remedy prescribed by the act to regulate commerce and the only remedy which the shipper has against the exaction of an imrea- sonable interstate rate." "" Burgess v. Transcontinental -^ ]\If-Grew v. Mo. Pac. Ry. Co., 8 Freight Bureau, 13 I. C. C. E. 668, I. C. C. E. 630. 680. §159.] OP Act to Regulate Commerce. 229 § 159. Reparation, limitation on complaint for. — Section six- teen of the act to regulate commerce as amended by the Hep- burn law fixed a limitation on the right of action for reparation in the following language : ' ' All complaints for the recovery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit court within one year from the date of the order, and not after : Provided, That claims ac- crued prior, to the passage of this act may be presented within one year." See post, § 5-47. Prior to this amendment there was no limitation in the statute and the limitation laws of the state in which a suit was filed controlled." The commission hav- ing stat-ed : "^ " Viewing together the Hepburn act, approved June 29, 1906, and the joint resolution relating thereto, ap- proved on the succeeding day, it is our conclusion that the legis- lative intent was to make the effective date of this act— the date from which it speaks for all purposes — August 28, 1906," quoted the foregoing provision and said : "This provision, as we understand it, means that anj^ claim, whether the cause of action upon which it is based accrued prior or subsequent to the effective date of the act, may be presented to the commission within two 3'ears from the date of the accrual thereof; and that as to causes of action that accrued prior to August 28, 1906, the claim may be presented at any time prior to midnight of August 28, 1907, although such cause of action may have accrued more than two years prior thereto. The in- tent of the proviso is, in our opinion, to prevent such a con- struction of the preceding part of this provision as to cut off claims upon previously accrued causes of action as to which the two years had already run, or so nearly so that it would be im- practicable for the claimants to present their claims within such period. "It is contended by the defendants that even if our interpre- ^ Ratican v. Terminal R. Asso., ^'^ Nicola, Stone & Myers Co. v. 114 Fed. 666. Contra holding R. Louisville & N. R. Co., 14 I. C. C. S. U. S. § 1047 applied. Carter v. R. 199, 206. See also I^le, Mor- New Orleans & N. E. R. Co., 143 gan & Co. v. Dcepwater Ry. Co., 15 Fed. 99, 74 C. C. A. 29.3 ; Cattle T. C. C. R. 23.5 ; Nollenberger v. Mo. Raisers' Asso. v. Chicago, B. & Q. Pac. Ry. Co., 1.'5 T. C. C. R. 595. R. Co., 10 I. C. C. R. 83. 230 Enforcement by the Commission [§ 159. tation of the act — that it became effective for all purposes on August 28, and not on the date of its approval — is correct, the limitations therein provided for are nevertheless effective as of June 29, 1906, because the act refers in this connection to the 'passage of this act.' ''It is held in many cases that a statute passed to take effect at a future date must be understood as speaking from the time it goes into operation and not from the time of its passage. The words 'heretofore,' 'hereafter,' and the like have reference to the time the statute becomes effective as a law and not to the time of passage. Before that time no rights may be acquired under it, and no one is bound to regulate his conduct according to its terms. It is equivalent to a legislative declaration th;it the statute shall have no effect until the designated date. ' ' • Prior to this decision the majority of the commission had made an administrative ruling as follows : "1. A cause of action accrues, as that phrase is used in the act, on the date on which the freight charges are actually paid. The expense bill, and not the waybill, is therefore the important document in considering reparation claims. "2. Claims filed since August 27, 1907, nuist have accrued within two years immediately prior to the date upon which they are filed ; otherwise they are barred by the statute. Claims filed with the conunission on or before August 28, 1907, are not ef- fected by the two years' limitation in the act. The commission will not take jurisdiction of or recognize its jurisdiction over any claim for reparation or damages which is barred by the statute of limitations, as herein interpreted." In the case of Kile & INIorgan v. Deepwater Ey. Co., 15 I. C. C. R. 235, the commission said: "Under the commission's interpretation of the statute all claims, whether arising prior or subsequent to August 28, 1906, thfe effective date of the act, are entitled to two years for presen- tation to the commission, the one-year proviso applying only to claims that accrued more than two years prior to that date. The petition in this proceeding having been filed with the com- mission June 23, 1908, we think there exists no question of jur- isdiction." The commission's construction of the act would allow a com- plaint to be filed on any claim within two years after it ac- crued and no limitation would apply on claims filed prior to § 159.] OF Act to Eegulate Commerce. 231 August 28, 1907. This construction would seem to be correct, though it has been criticised.'* The commission, discussing this section and speaking through Mr. Commissioner Cockrell, says : '' "In complaints for the recovery of damages caused by charges of rates unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial, the cause of action accrues when the payment is made. In any other complaints for the re- covery of damages for alleged violations of the interstate com- merce laws of which this conmiission has jurisdiction, the cause of action accrues when the carrier does the unlawful act or fails to do what the law requires, on accoimt of which damages are claimed." A complaint filed by an association demanding reparation under general averments which do not name the members on whose behalf it is filed and do not with reasonable particularity specify and describe the shipments as to which the complaint is made, will not operate to stop the running of the period of lim- itation fixed by law. In the case '" in which this statement was made it appeared that the secretary of an association had filed a complaint in the name of the association, the members of which were not named, nor was there given any data as to the ship- ments upon which reparation might be claimed. Upon all re- coveries the association was to receive fifty per cent., four-fifths of which went to its secretary. Upon this state of facts Mr. Commissioner Harlan said : "In applying to complaints filed before it the limitation thus enacted into the act to regulate commerce, no reason is per- ceived why the commission should not be guided by the general principles under which statutes of limitations are applied to ac- tions brought in courts of justice. And the universal rule in the courts seems to be that, under a system of pleading which per- mits a proceeding for damages to be instituted by the filing of a complaint, the statute of limitations does not cease to run against the demand until a complaint has been filed setting up the claim with sufficient particularity to make an issue; in other words, until a definite cause of action has been pleaded there is nothing to arrest tlie ruiniing of the statute. There are, ^Nelson, Tiit. Com. 98, 99. -"Missouri & Kan. Rliij)|)ors Asso. " Re When a Cause of Action Ac- v. Atchison, T. & S. F. Ry. Co., i:\ crues, 15 I. C. C. R. 201, 204. I. C. C. R. 411. 232 Enforcement by the Commission [§160. moreover, special reasons, under various sections of the amended act, for holding that none of these complaints, as drawn, can be said to set np a canse for action or to be sufficient to stop the running of the statute against the claims of the individual mem- bers of the complainant association. Conceding under the terms of section 13 tliat a volimtary association may attack an exist- ing rate on behalf of its members, it may be said, on general grounds of convenience, tliat such an association may also ask for reparation on previous shipments made by them under the rate attacked. But it is clear that no demand for damages by such an association should be entertained, now that a period of limitation has been incorporated in the act. or can be said to state the complaint or cause of action so as to stop the running of the limitation, that does not definitely name the member or members on whose behalf the claim for reparation is made. It is under the authority of section 16 that the commission is au- thorized to enter an order making an award of damages. This section gives to the commission the pow'er, after a full hearing upon a complaint made and when it shall have determined 'that any party complainant is entitled to an award of damages,' to make an order directing the carrier 'to pay to the complainant' the sum awarded. In any such proceeding there must therefore be a party complainant wdio is entitled to damages, and the order must direct the carrier to pay the sum awarded 'to the complainant.' It is clear, then, that any complaint under which an award of damages is sought by a voluntarj^ association of this kind, which can make no claim on its own behalf, must be filed on behalf of a definitely named party in interest." "When, however, an individual files a complaint for reparation in his own behalf, an informal complaint wall stop the running of the statute." § 160. Commission may make investigations without com- plaint. — The Interstate Commerce Commission is authorized and empowered to enforce the provisions of the act to regulate com- merce. To accomplish which it has authority to incpiire into 2'Folmer & Co. v. Great N. Ey. Ey. Co., id. 274, 276; Hartman Co., 15 I. C. C. E. 33, 34; Venus v. Furniture & Carpet Co. v. Wis. St. Louis, I. M. & S. Ey. Co., id. Cent. Ey. Co., id. 530, .531; Duluth 136, 137; Woodward & D. v. Louis- Log Co. v. Minn. & Int. Ey. Co., ville & N. E. Co., id. 170; Beekman id. 627. Lumber Co. v. St. Louis, I. M. & S. § 160.] OF Act to Regitlate Commerce. 233 the management of the business -of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the commission to perform the duties and carry out the objects for which it was created, and it may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. It also has "power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents re- lating to any matter under investigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission, or any party to a proceeding before the commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section." See annotations to sections twelve and thirteen of the act to regulate commerce, post, §§ 533 lo 538. In the Brimson Case,"* an informal complaint having been made of the facilities of certain carriers, the commission of its own motion decided to investigate the matters set forth in such complaint; and thereupon it made an order reciting the facts of the informal complaint and requiring each of certain named car- riers "to make and file, in its office at Washington, a full, com- plete, perfect and specific verified answer setting forth all facts in regard to the matters complained of and responding to" cer- tain questions relating to the methods of operation of the car- riers and especially as to the relation of such carriers to the Illinois Steel Company. To these questions each carrier filed a denial and each averred that it had, in all respects, complied with the obligations imposed by the laws of the United States. Notwithstanding these denials, the conniiission continued the in- vestigation by the examination of witnesses and books and docu- ments. It subpo'naed W. G. Brimson, who was president and " Int. Com. Com. v. Brimson, 1.54 Ct. 1125. U. S. 447, 38 L. Ed. 1047, 14 Sup. 234 Enforcement by the Commission [§ 160. manager of five carriers incorporated under the laws of Illinois, which carriers were among those under investigation. This wit- ness refused to answer the question as to the ownership of his companies by the Illinois Steel Company. Other witnesses re- fused to answer the same question. The connnission thereupon filed its petition in the circuit court praying that the witnesses be required to answer the questions. The circuit court refused the order, holding that the proceeding did not constitute a con- troversy to which the judicial power of the United States could be extended. Section twelve of the act was- held valid in the Supreme Court, the circuit court reversed and the cause re- manded, with directions to proceed in conformity with the opin- ion of the Supreme Court. The very able opinion of jNIr. Justice Harlan concluded as follows : ''We are of the opinion that a judgment of the circuit court of the United States determining the issues presented by the petition of the Interstate Commerce Commission and by the an- swers of appellees, will be a legitimate exertion of judicial au- thority in a case or controversy to which, by the commission, the judicial power of the United States extends. And a final order by that court dismissing the petition of the commission, or re- quiring the appellees to answer the questions propounded to them, and to produce the books, papers, etc., called for, will be a determination of questions upon which a court of the United States is capable of acting and which may be enforced by judi- cial process." In the Baird Case,^ which was also an application of the com- mission to the court to compel the testimony of witnesses, the defendant urged that though a complaint was filed, the com- plainant "did not show any real interest in the case brought." The witnesses w^ere required to answer, Mr. Justice Day, in the course of the opinion, saying : "Power is conferred upon the commission', under section 12 of the act as amended March 2, 1889 (25 Stat, at L. 858, chap. 382, U. S. Comp. Stat. 3901, p. 3162, and February 10, 1891, 26 Stat, at L. 743, chap. 128, U. S. Comp. Stat. 1901, p. 3162), to inquire into the management of the business of all common carriers subject to the provisions of the act, and to keep itself =» Int. Com. Com. v. Baird, 194 U. Ct. 563. S. 25, 48 L. Ed. 860, 867, 24 Sup. § 160,] OF Act to Regulate Commerce. 235 informed as to the manner and method in which the same is conducted, with the right to obtain from such common car- riers full and complete information necessary to enable the com- mission to perform the duties and carry out the objects for which it was created. «=****** ''But in the present case, whatever may be the right of the commission to carry on an investigation under the general powers conferred in section 12, this proceeding was under the complaint filed, and we will examine the testimony offered with a view to its competency under the allegations made by the complainant." In the Harriman Case, ^° the investigation was upon the mo- tion of the commission, not upon complaint. The relations be- tween the Union Pacific Railroad Company and other connecting roads, whether parallel or not, were inquired about and cer- tain ciuestions asked were, under advice of counsel, not an- swered by the witnesses. The legal questions presented are stated by ]\Ir. Justice Holmes as follows : "The contention of the commission is that it may make any investigation that it deems proper, not merely to discover any facts tending to defeat the purposes of the act of February 4, 1887, but to aid it in recommending any additional legislation relating to the regulation of commerce that it may conceive to be within the power of Congress to enact ; and that in such an investigation it has power, with the aid of the courts, to require any witness to answer any question that may have a bearing upon any part of what it has in mind. The contention neces- sarily takes this extreme form, because this was a general in- quiry started by the commission of its own motion, not an in- vestigation upon complaint, or of some specific matter that might be made the object of a complaint. * * * * "The commission it will be seen is given power to require the testimony of witnesses 'for the purposes of this act.' The ar- gument for the commission is that the purposes of the act em- brace all the. duties that the act imposes and the powers that it gives the commission ; lluit one of the purposes is that the commission shall keep itself informed as to the manner and method in which the business of the carriers is conducted, as •'"' irarrinian v. Int. Com. Com., , 29 Sup. Ct. 115. 21i U. S. 407, 419, 420, 53 L. Ed. 236 Enforcement by the Commission [§1C0. required by section 12 ; that another is that it shall recommend additional legislation under section 21, * * * * * * * and that for either of these general objects it may call on the courts to require any one -whom it may point out to attend and testify if he would avoid the penalties for contemi)t."' The gist of the opinion is contained in a short paragraph, which is here reproduced : "We aj"e of opinion on the contrary that the purposes of the act for which the commission may exact evidence embrace only complaints for violation of the act, and investigations by the connnission upon matters that might have been made tha ob- ject of complaint. As we have already implied the main pur- pose of the act was to regulate the interstate business of car- riers, and the secondary purpose, that for which the commission was established, was to enforce the regulations enacted. These in our opinion are the purposes referred to ; in other words the power to require testimony is limited, as it usually is in Eng- lish-speaking countries at least, to the only cases where the sacrifice of privacy is necessary — those where the investigations concern a specific breach of the law." It will be noticed that the opinion does not go to the extent of holding that the commission may not require the attendance and testimony of witnesses in investigations had upon its own motion without complaint. The commission may upon its own motion make investigations, but it can not require witnesses to answer except about "matters that might have been made the object of complaint." The commission in its twenty-second an- nual report (1908). discusses the Harriman case, concluding the discussion as follows: "This commission, in administering this power of investiga- tion, which it has assumed,to exercise in the past, has repeatedly held that the private dealings of individuals in private matters could not be inquired into. It has. however, ruled that it might inquire to the fullest extent into the operations of railroads and the officers of railroads. The Union Pacific Kailroad is not a private enterprise — it is a public servant, discharging, as the agent of the government, a public function. Its stocks are worthless except as they derive value from the charges which are imposed upon the public for the rendering of this public service. In the opinion of this commission, when ^Mr. Harriman assumes control of the Union Pacific Railroad he ceases to be a § 161.] OF Act to Regulate Commerce. 237 private individual to that extent and can no longer claim pro- tection, which, as a private person engaged in a strictly private pursuit, he might insist upon. It was our opinion that he might properly be required to state whether, as a director of the Union Pacific Railroad, he had bought from himself individually certain stocks, and if so. that he should further be required to state what profit he had individually made out of this transac- tion. If he is allowed to accumulate from the manipulation of these public agencies vast sums of mpney which must finally come from the body of the people, we think he is so far a trustee of the people that he can not object to stating the manner in which these accumulations have been made. ' ' § 161. Commission may ask the aid of courts to enforce the law. — We have seen § 160 ante, that the commission may apply to courts to aid it in obtaining testimony in investigations re- lating to violations of the act to regulate commerce. Upon the request of the commission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the proper coiu't and to prosecute imder the di- rection of the Attorney-General of the United States all neces- sary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof. Where the commission's order, other than an order for the payment of money, has not been obeyed, any party injured by such diso- bedience, or the commission in its own name, may apply to the circuit court in the district where such carrier has its principal operating office, 'or in which the violation or disobedience of such order shall happen, for an enforcement of such order. The commission has power, with the consent of the Attorney- General, to employ special counsel. It is the usual practice of the commission, where a suit is brought to set aside its order, to designate the counsel for the party in whose favor the order was entered as special counsel. Such special counsel is paid by the party interested, and not by the government, and the method of conducting the case is under the directions of the Attorney- General, or such regular attorney of the commission as mny have particular charge thereof. § 162. Rehearings by the commission. — The commission has authority to suspend or modify its oi-dors upon notice, the man- nfr of actiiifi' and Hie Isiiid of notice being left to its discretion. Secti(jn 16-a gives the commission i>o\ver to grant rehcarings 238 Enforcement by ttte Commission [§162. upon such general rules as it may prescribe, but unless specially permitted otherwise, the order must be obeyed pending such re- hearing. This section was added by the amendment of June 29, 1906, but the power has been exercised by the commission since its organization. See post § 559. In re Petition of Produce Exchange,*" a rehearing was denied the petitioner, who was not a party on the original hearing. In ]\Iyers v. Penn. Co.,'° the rehearing was denied, the petition not shoAving any material testimony had been overlooked or misap- prehended and no error of law being disclosed. In overruling the first motion for rehearing filed with the commission, Judge Cooley, its then chairman, announced this rule in relation thereto : ^ "(a) The commission will promptly and carefully examine an application for a rehearing with a view to the immediate correction of any error of law or fact found to exist, but will not direct a rehearing involving the expense to parties of ap- pearing before the commission for a reargument, unless satis- fied that such reargument might have the effect of changing the result of what the commission has already done. ''(b) The statute is construed as dealing with the substance of things, and as contemplating, as far as that is possible, meth- ods of procedure that are speedy and which come at once to the very right of questions arising in the transportation of persons and freight." On a petition asking a rehearing in a case decided before the Hepburn amendment, so that an order could be made under section 15, as amended, ]Mr. Commissioner Prouty said : ^ "Without inquiring what authority as a matter of law this commission may have over a case in which an order was issued before the amendment of June 29. 1906, took effect, we are all agreed that this petition ought to be denied. This case has been ended by the making of an order. For nearly a year it was op- tional with the complainant to proceed in court with the enforce- ment of that order, and such may be its right even now. We feel that when an order has been made the case before this com- mission should be treated as closed, and that it ought not to be =« 2 I. C. C. E. 588, 2 I. C. R. 412. E. R. Co., 1 I. C. C. R. 490, 1 I. C. «= 2 I. C. C. R. 573, 2 I. C. R. 403, R. 773. 544. *• Cattle Raisers ' Asso. v. Chicago, 3« Riddle, Dean & Co. v. P. &. L. B. & Q. R. Co., 12 I. C. C. R. 6. § 163.] OF Act to Regulate Commerce. 239 opened except upon a showing that some wrong or injustice has been or will be affected. The petition is denied." § 163. Commission has power to prescribe rates for the fu- ture. — When the act to regulate commerce was originally passed the commission appointed thereunder, believing the law so au- thorized, exercised the power to prescribe rates for the future. That this power was not delegated to the commission prior to the Hepburn amendment was definitely decided by the Supreme Court in Interstate Commerce Commission v. Cincinnati, N. 0. & T. P. R. Co.,"" where the question was elaborately discussed and the conclusion stated "that under the interstate commerce act the commission has no power to prescribe the tariff of rates which shall control in the future." Under the old law the com- mission had and exercised the power to declare a particular ad- vance in rates illegal. The exercise of this power practically meant prescribing the old rate as the rate for the future. This is clearly shown in the Tift Case. There an advance was made by the carriers, this advance, on hearing, was declared illegal, and the whole advance was held to be the measure of repara- tion allowed shippers.'" The act as amended June 29, 1906, section 15 (see post § 539) gives the commission power, after full hearing upon complaint, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged. § 164. Commission has power to make regulations which car- riers must obey. — In the original act to regulate commerce trans- portation was defined as including "all instrumentalities of ship- ment or carriage." This definition was broadened by the Hep- burn amendment to include cars and other vehicles and all in- strumentalities and facilities of shipment or carriage, irrespec- tive of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, de- livery, elevation, and transfer in transit, ventilation, refrigera- tion or icing, storage, and handling of property transported." Section fifteen of the act as amended gives the commission »'167 U. S. 479, 42 L. Ed. 24.3, v. Southern Ry. Co., 14 I. C. C. E. 17 Sup. Ct. 89. 195; Nicola, Stone & Myers Co. v. =" Southern Ry. Co. v. Tift, 206 Louisville & N. E. Co., 14 I. C. C. U. S. 428, 51 L. Ed. 1124, 27 Sup. R. 199. Ct, 709; Southern Pine Lumber Co. 240 Enforcement bv the Commission [§ 16-4. power, after full hearing on complaint, to prescribe "what reg- ulation or practice in respect to such transportation is just, fair, and reasonable to be thereafter followed." Construing this sec- tion, the commission, ]\Ir. Commissioner ITarlan delivering the opinion, has said : ^' "If the numerous and varied regulations and practices of car- riers which enter so vitally into questions of transportation do not 'affect rates.' in the sense attributed by counsel for the de- fendant to that phrase, and therefore lie outside the jurisdiction of the commission, our pdwer to protect the shipping public against abuses is much less extensive than has generally ])een un- derstood. There is no more insidious or effective way by which a carrier may discriminate between its shippers than through a regulation or practice that denies to them the equal enjoyment of -its facilities. ********** in our view any practice or regulation that unlawfully discriminates against one shipper and affords an undue preference to another shipper is a regulation or practice affecting rates within the meaning of that phrase as used in the clause in question. Any regulation ur practice that withdraws from a shipper the equal opportunity of using and taking advantage of the rates offered by a carrier to the public is clearly a regulation or practice affecting rates in the sense in which that phrase is used in the amended act at the point in question. To hold otherwise, as the defendant urges, would be to put the narrowest possible construction upon those words, in disregard of the general objects and purposes of the enactment. And this we are not w^arranted in doing under any recognized rule of statutory construction, and more espe- cially when a remedial statute is imder consideration. After having vested in the commission the power to redress wrongs arising out of unreasonable and unjust rates, we are not ready to accept the view that the Congress has contented itself with a mere admonition in the law against the great w'rongs that may be done against shippers through imjust regulations and prac- tices. ******** It will be observed that the clause divides itself naturally into two parts; it authorizes the commission, first, to consider the wrong alleged, and then to apply the remed3\ If it shall be of the opinion after a full hear- se Eail and River Coal Co. v. Bal- 86. timore & 0. E. Co., 14 I. C. C. E. § 164.] OF Act to Eegiilate Commerce. 241 ing that the regulation or practice complained of is unreasonable and unjust, the commission may remedy the wrong by prescrib- ing a just and reasonable regulation or practice thereafter to be followed by the carrier. In the tirst part of the provision ref- erence is made to regulations or practices 'affecting rates;' the remedy offered by the provision consists in the prescribing by the commission of a just and reasonable regulation or practice with respect to 'transportation.' While there is here some con- tradiction in the words used, we do not imderstand that there is • any contradiction in the real substance of the clause or in its meaning. Each part of the clause has a necessary relation to the other part, and the words 'regulations' and 'practices' as used in both parts must necessarily be used in the same sense. If they are not so used it is difficult to see how a wrongful regu- lation or practice 'affecting rates,' in the sense of affecting the amount of the freight charges on a shipment, could ordinarily be cured by the substitution, as the clause now under considera- tion provides, of a just or reasonable regulation or practice in respect to 'transportation.' Obviously the two phrases refer to the same kind of regulations and practices, namely, the regula- tions and practices under which the transportation of interstate carriers is conducted. When both phrases are considered to- gether and the whole clause is read in the light of the great pur- poses underlying the act, there is little difficulty in reaching the conclusion that the words 'any regulations or practices whatso- ever * * * affecting such rates' are used synonymously with the words 'regulation or practice in respect to such trans- portation;' and that' both clauses are to be read in the widest possible sense and embrace all regulations and practices of car- riers imder which they offer their services to the shipping pub- lic and conduct their transportation. We find no difficulty in holding, under section 15 of the amended act, that ample au- thority is vested in the commission to deal with the undue pref- erences and unlawful discriminations forbidden under sections 2 and 3 and elsewhere in the act, regardless of the form of the rule, regulation, or practice under Avhich such wrongs may be perpetrated." Eules and regulations as to who shall load and unload freight are practices subject to the control of the commission.'* Tar- '^ Wholesale Fruit and Producers' Co., 14 I. C. C. R. 410. Asso. V. Atchison, T. & S. F. Ry. 242 Enforcement by the Commission [§ 165. riers conceding a regulation to shippers arc entitled to a profit over the cost thereof.*' § 165. Cominission may establish through routes and joint rates and prescribe the division of the joint rate. — By section fifteen of the amended act the commission may, after hearing on a complaint, establish through routes and joint rates as the max- imum to be charged and prescribe the division of such rates as hereinbefore provided, and the terms and conditions under which such through routes shall be operated, when that may be neces- sary to give effect to any provision of this act. and the carriers complained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reasonable or satisfactory through route exists, and this provision shall apply when one of the connecting carriers is a water line. The com- mission may also, where the carriers fail to agree among them- selves as to a division of a joint rate, make an order prescribing the just and reasonable proportion of such joint rate to be re- ceived by each carrier party thereto. Of this law Mr. Commis- sioner Prouty said : " "The commission held in Enterprise Transportation Co. v. Pennsylvania Railroad, 12 I. C. C. Rep., 326, that upon an ap- plication of this sort two questions must be determined by the commission : First, Does a satisfactory through route already exist between the points involved? Second, If not, should the commission, as a matter of discretion, establish the route asked for? The defendants now contend that there is still another jurisdictional fact which must be found by us, namely. Does the failure upon the part of the defendants to form a through route violate any provision of the act to regulate commerce? ''The fifteenth section invests the commission with authority to order a through route 'when that may be necessary^ to give effect to any provision of this act,' and the defendants urge that it must appear that the failure to establish the through route operates as a violation of some provision of the act, as by the creation of a discrimination or the imposition of an unreasonable rate. But the first section of the act, as amended June 29, 1906, provides that it shall be the duty of carriers subject to the pro- visions of the act 'to establish through routes and just and rea- ^ Southern Ey. Co. v. St. Louis "Pacific Coast Lumber Mfg. Hay & Grain Co., 214 U. S. 297, b'li Asso. v. Northern P. K. Co., 14 1. L. Ed. , Sup. Ct. . C. C. R. 51, 53. § 165.] OF Act to Regulate Commerce. 243 sonable rates applicable thereto.' The refusal, therefore, upon the part of carriers to establish and maintain just and reasonable through routes is, to-day, of itself a violation of the act. ' ' Every attempt to require by law the establishment of through routes and joint rates has been met by the objection upon the part of railways that such arrangements were properly matters of contract, and that each railway should be left free to control its O'^Ti traffic. It has been insisted that unless this were so railway operation would be unjustly hampered and railway de- velopment imduly checked. "This contention upon the part of the railways has appar- ently been, to an extent, recognized by Congress in the enact- ment of this statute. The commission is only allowed to estab- lish a through route and a joint rate when the carriers them- selves have neglected to provide a reasonable and satisfactory one. ' ' With reference to the division of a joint rate ]\Ir. Commis- sioner Harlan said : " ''The phrase 'the just and reasonable proportion of such joint rate to be received by each carrier' necessarily implies that it is the duty of the commission in fixing divisions to take into consideraton all the circumstances, conditions, and equities that are necessary- to arrive at what is a fair and proper adjustment of the situation as between the two roads, and precludes the idea that joint rates must be divided between the participating car- riers on a mileage or any other fixed basis." Carriers must furnish reasonable through routes and can not escape from such duty because in doing so their revenues may be reduced by reason of competition with other shippers. On this subject the commission, through Mr. Commissioner Harlan, said : ''' "An interstate carrier in order to build up enterprises of the same character on its own line and to prevent the trade of its local industries from being displaced by the competition of manufacturers of the same commodities on connecting lines, can not deny to industries on the lines of such connections the ben- efit of through routes and joint rates; nor is the fact that the "Star Grain & Lumber Co. v. « Cardiff Coal Co. v. Chicago, M. Atchison, T. & S. F. Ry. Co., 14 & St. P. Ry. Co., 13 I. C. C. R. 460. I. C. C. R. 364, 370. 2-1-1 Enforcement by the Commission [§ 166. revenues of the carrier may be reduced by establishing such through routes and joint rates a material consideration. It may be laid down as a general rule, admitting of no qualification, that a manufacturer or merchant who has traffic to move and is ready to pay a reasonable rate for the service, has a right to have it moved and to have reasonable rates established for the move- ment, regardless of the fact that the revenues of the carrier may be reduced by reason of its competition with other shippers in the same market; and he has the right also to have the benefit of through routes and reasonable joint rates to such distant markets if no reasonable or satisfactory through route already exists. ' ' § 166. Procedure before the commission. — The Interstate Commerce Commission is not a court, and while it hears testi- mony from which it reaches conclusions and while some of its forms of procedure are analogous to those of a court, it is not and should not be embarrassed by purely technical rules. Com- plaints made to it in the way of an informal letter do and should obtain its action. Rules of evidence are not strictly en- forced in its hearings. It may and frequently does consider the records required to be filed with it, thus the annual reports made to and filed with the commission, all legally filed schedules and other similar documents are considered. Mr. Justice Day has stated these propositions as follows : " "The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation, and it should not be hampered in making inquiry pertaining to interstate commerce by those nar- row rules which prevail in trials at common law, where a strict correspondence is required between allegation and proof." The usual history of a complaint before the commission is as follows: Printed complaints are filed in sufficient number to have three for the files of the commission and to enable the sec- retary to furnish or serve each defendant with a copy, answer is filed and a day set for taking testimony. Testimony may be heard before all or a less number of the commissioners, or before a special examiner appointed by the commission for the pur- «Int, Com. Com. v. Baird, 194 Sup. Ct. 563. U. S. 25, 44, 48 L. Ed. 861, 869, 24 § 167.] OP Act to Eegulate Commerce. 245 pose. The hearing may be at any place designated by the com- mission. Depositions may be taken. After the testimony has been taken, upon application, usually made at the conclusion of the testimony if the hearing is before a commissioner or com- missioners, or in a letter to the secretary, time is fixed for filing printed briefs. After briefs are filed the cause is set for argu- ment, as a rule, at Washington and oral argument may be had. Traffic men may and sometimes do appear and conduct hear- ings and file arguments. "When a decision is reached, the opin- ion is written and printed. After it is printed, the decision is made public and a certified copy of the opinion sent to the respective parties and a certified copy of the order served on the party against whom it is made. These hearings are conducted with the decorum and dignity demanded by the importance of the tribunal and the high standing of its members, but the tech- nical rules of courts are not strictly adhered to. The act as to the procedure by the commission says : ''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. *s * * * * * Said commis- sion may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of pro- ceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said commission and be heard, in person or by attorney." By virtue of this power, the commission has formulated a few rules of procedure which are copied in the next section. § 167. Rules of procedure prescribed by the commission. — Under authority granted under section seventeen of the act, the Interstate Commerce Commission has promulgated the following rules of practice. 7. — Puhlic Sessions. The general sessions of the commission for heai-ing contested cases, including oral argument, will be held at its office in the American Bank Building. No. 1317 F Street N. W., Washington, D. C, and the two weeks beginning with tlic first IMonday in'each nioiitli fire set aside for that purpose. 246 Rules of Procedure [§ 167. II. — Parties to Cases. Any person, firm, company, corporation, or association, mer- cantile, agricultural, or manufacturing society, body politic or nmnicipal organization, or any common carrier, or the railroad commissioner or connnission of any state or territory, may com- plain to the commission by petition, of anything done, or omitted to be done, in violation of the provisions of the act to regulate commerce by any common carrier or carriers or other parties subject to the provisions of said act. Where a complaint relates to the rates, regulations, or practices of a single carrier, no other carrier need be made a party, but if it relates to matters in which two or more carriers, engaged in transportation by continuous carriage or shipment, are interested, the several car- riers participating in such carriage or shipment are proper par- ties defendant. Where a complaint relates to rates, regulations, or practices of carriers operating different lines, and the object of the pro- ceeding is to secure correction of such rates, regulations or prac- tices on each of said lines, all the carriers operating such lines must be made defendants. When the line of a carrier is operated by a receiver or trus- tee, both the carrier and its receiver or trustee should be made defendants in cases involving transportation over such line. Persons or carriers not parties may petition in any proceeding for leave to intervene and be heard therein. Such petition shall set forth the petitioner's interest in the proceeding. Leave granted on such application shall entitle the intervener to ap- pear and be treated as a party to the proceeding, but no person not a carrier who intervenes in behalf of the defense shall have the right to file an answer or otherwise become a party, except to have notice of and appear at the taking of testimony, produce and cross-examine witnesses, and be heard, in person or by coun- sel, on the argument of the case. III. — Complaints. Complaints must be by petition setting forth briefly the facts claimed to constitute a violation of the law. The name of the carrier or carriers complained against must be stated in full, and the address of the petitioner, Avith the name and address of his attorney or counsel, if any, must appear upon the petition. § 167.] Before Interstate Commerce Commission. 247 The petition need not be verified. The complainant must fur- nish as many copies of the petition as there may be parties com- plained against to be served and three additional copies for the use of the commission. The conunission will cause a copy of the petition, with notice to satisfy or answer the same within a specified time, to be served personally or by mail, in its discretion, upon each defendant. IV. — Answers. A defendant must answer within twenty days from the date of the notice above provided for, but the commission may, in a particular case, require the answer to be filed within a shorter time. The time prescribed in any case may be extended, upon good cause shown, by the commission. The original answer must be filed with the secretary of the commission at its office in Washington, and a copy thereof at the same time served by the defendant, personally or by mail, upon the complainant, who must forthwith notify the secretary of its receipt. The answer must specifically admit or deny the material allegations of the petition, and also set forth the facts which will be relied upon to support any such denial. If a defendant shall make satisfaction before answering, a written acknowledgment thereof, showing the character and extent of the satisfaction given, must be filed by the complainant, and in that case the fact and manner of sat- isfaction, without other matter, may be set forth in the answer. If satisfaction be made after the filing and service of an an- swer, such written acknowledgment must also be filed by the complainant, and a supplemental answer setting forth the fact and manner of satisfaction must be filed by the defendant. V. — Notice in Nature of Demurrer. A defendant who deems the petition insufficient to show a breach of legal duty may, instead of answering or formally de- murring, serve on the complainant notice of hearing on the peti- tion ; and in such case the facts stated in the petition will be deemed admitted. A copy of the notice must at the same time be filed with the secretary of the .commission. The filing of an answer, however, will not be deemed an admission of the suffi- ciency of the petition, but a motion to dismiss for insufficiency may be made at the hearing. 248 Rules of Procedure [§ 167. VI. — Service of Papers. Copies of notices or other papers must be served upon the ad- verse party or parties, personally or by mail, and when any party has appeared by attorney service upon such attorney shall be deemed proper service upon the party. VII. — Amendments. Upon application of any party, amendments to any petition or answer, in any proceeding or investigation, may be allowed by the commission, in its discretion. VIII. — Adjournments and Extensions of Time. Adjournments and extensions of time may be granted upon the application of any party, in the discretion of the commission. IX. — Stipulations. The parties to any proceeding or investigation before the com- mission may, by stipulation in writing filed with the secretary, agree upon the facts, or any portion thereof, involved in the controversy, which stipulation shall be regarded and used as evidence on the hearing. It is desired that the facts be thus agreed upon whenever practicable. X. — Hearings. Upon issue being joined by the service of an answer or notice of hearing on the petition, the commission will assign a time and place for hearing the case, which w411 be at its office in Wash- ington, unless otherwise ordered. Witnesses will be examined orally before the commission, imless their testimony be taken or the facts be agreed upon as provided for in these rules. The complainant must in all cases establish the facts alleged to con- stitute a violation of the law, imless the defendant admits the same or fails to answer the petition. The defendant must also prove facts alleged in the answer, unless admitted by the peti- tioner, and fully disclose its defense at the hearing. In the case of failure to answer, the commission will take such proof of the facts as may be deemed proper and reasonable, and make such order thereon as the circumstances of the case appear to require. § 167.] Before Interstate Commerce Commission. 249 Cases may be heard by one or more members of the commis- sion, or by a special agent or examiner, as ordered by the com- mission. "When testimony is directed to be taken by a special agent or examiner, such officer shall have power to administer oaths, examine witnesses, and receive evidence, and shall make report thereof to the commission. All cases shall be orally argued in AYashington, D. C, or sud- mitted upon briefs, unless otherwise ordered by the commission. XI. — Depositions. The testimony of any witness may be taken by deposition, at the instance of a party, in any case before the commission, and at any time after the same is at issue. The commission may also order testimony to be taken by deposition, in any proceeding or investigation pending before it, at any stage of such proceed- ings or investigation. Such depositions may be taken before any authorized special agent or examiner of the commission, judge of any court of the United States, or any commissioner of a circuit or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of com- mon pleas of any of the United States, or an^^ notary public, not being of counsel or attorney to either of the parties or other- wise interested in the proceeding or investigation. Reasonable notice must be given in writing by the party or his attorney pro- posing to take such deposition to the opposite party or his at- torney of record, which notice shall state the name of the wit- ness and the time and place of the taking of his deposition, and a copy of such notice shall be filed with the secretary of the commission. "When the testimony is to be taken on behalf of a common carrier in any proceeding instituted by the commission on its o\«i motion, reasonable notice thereof in writing must be given by such carrier to the secretary of the commission. Every person whose deposition is taken shall be cautioned and sworn (or may affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing, whicli may bo type writing, by the magis- trate taking the deposition, or under liis direction, and shall, after it has been reduced to writing, l)o sul)s('iMbe(l by tbe wit- ness. 250 Rules of Procedure [§ 167. if a wituesij 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 commission, or agreed upon by the parties by stipulation in writing to be filed with the secretary. All depositions must be promptly filed with the secretary. XII. — Witnesses and Suhpoenas. Subpoenas requiring the attendance of witnesses from any place in the United States to any designated place of hearing, for the purpose of taking the testimony of such witnesses orally before one or more members of the commission, or an authorized special agent or examiner of the commission, or by deposition, will, upon the application of either party, or upon the order of the commission directing the taking of such testimony, be issued by any member of the commission. Subpoenas for the production of books, papers, or documents (imless directed to issue by the commission upon its own mo- tion) will only be issued upon application in writing; and when it is sought to compel witnesses, not parties to the proceeding, to produce such documentary evidence, the application must be sworn to and must specify, as nearly as may be, the books, papers, or documents desired; that the same are in the posses- sion of the witness or under his control ; and also, by facts stated, show that they contain material evidence necessary to the appli- cant. Applications to compel a party to the proceeding to pro- duce books, papers, or documents need only set forth in a general way the books, papers, or documents desired to be produced, and that the applicant believes they will be of service in the de- termination of the case. Witnesses whose testimony is taken orally or by deposition, and the magistrate or other officer taking such depositions, are severally entitled to the same fees as are paid for like services in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken. XIII. — Documentary Evidence. "Where relevant and material matter offered in evidence is em- braced in a report, tariff, rate sheet, classification, book, pamph- § 167.] Before Interstate Commerce Commission. 251 let, written or printed statement, or document of any kind con- taining other matter not material or relevant and not intended to be put in evidence, such report, etc., in whole, shall not be received or allow^ed to be filed in a cause on hearing before this commission or at any time during the pendency thereof, but counsel or other party offering the same shall also present in convenient and proper form for filing a copy of such material and relevant matter, and that only shall be received aiid allowed to be filed as e\adence and made a part of the record in such cause; provided, however, that, if practicable, such matter may be read and taken do^^^l by the reporter and thus made part of the record. XIV.— Briefs. Unless otherwise specially ordered, printed briefs shall be filed on behalf of the parties in each case. The brief for complainant, and the brief or briefs for the de- fendants, or intervenors shall contain an abstract of the evidence relied upon by the parties filing the same, and in such abstract, reference shall be made to the pages of the record wherein the evidence appears. The abstract of evidence should follow the statement of the case and precede the argument. Briefs shall be printed in twelve-point type on antique fin- ish paper, 5}i inches wide by 9 inches long, with suitable mar- gins, double leaded text and single leaded citations. At the close of the taking of the testimony in each case, the commissioner or examiner before whom such testimony is taken shall fix the specific dates, on or before which the briefs of the respective parties must be filed with the commission and served on the adverse parties. The date so fixed, imless otherwise or- dered at said time, shall allow to the respective parties the fol- lowing periods of time within which to file with the connnission and serve their respective briefs on the adverse parties, to-wit: To the complainant 30 days from the date of the conclusion of the testimony; to the defendants and intervenors, 15 days after the specified date fixed for the complainant : and to complainant for reply brief, 10 days after the date fixed for defendants or intervenors. If the briefs of the respective parties are not filed and served on the date fixed for each, the case will stand sub- mitted without briefs on the date that defendants or intervenors' briefs are due. Briefs of parties not filed as aforesaid, and 252 Rules of Procedure [§ 167. served on the respective parties on or before the specific dates fixed therefor, will not be received or considered by the com- mission. All briefs shall be filed with the secretary and shall be accom- panied by notice showing service upon the adverse parties, and 15 copies of each brief shall be filed for the use of the commis- sion. The parties will be required to comply strictly with this rule, and except for good cause shown, no extension of time will be allowed. Applications for extension of time in which to file briefs shall be by petition in writing stating the facts on which the application rests, which must be filed with the commission at least 5 days before the time for filing such brief has expired. Applications for oral argument may be made by any party at the close of the taking of the testimony or at the time of the filing of his brief. Such applications can be granted only by tiie commission. XV. — Behearings. Applications for reopening a case after final submission, or for rehearing after decision made by the commission, must be by petition, and must state specifically the grounds upon which the application is based. If such application be to reopen the case for further evidence, the nature and purpose of such evidence must be briefly stated, and the same must not be merely cumula- tive.' If the application be for a rehearing, the petition must specify the findings of fact and conclusions of law claimed to be erroneous, with a brief statement of the grounds of error; and when any decision, order, or requirement of the commission is sought to be reversed, changed, or modified on account of facts and circumstances arising subsequent to the hearing, or of con- sequences resulting from compliance with such decision, order, or requirement which are claimed to justify a reconsideration of the case, the matters relied upon by the applicant must be fully set forth. XYI. — Printing of Pleadings, Etc. Pleadings, depositions, and other papers of importance shan be printed or in typewriting, and when not printed only one side of the paper shall be used. § 167.] Before Interstate Commerce Commission. 253 XVII. — Copies of Papers or Testimony. Copies of any report, decision, order, or requirement of the commission will be furnished without charge upon application to the secretary by any person or carrier party to the proceeding. One copy of the testimony will be furnished by the commis- sion for the use of the complainant and one copy for the use of the defendant, without charge ; and when two or more complain- ants or defendants have appeared at the hearing, such com- plainants or defendants must designate to whom the copy for their use shall be delivered. XVIII. — Compliance tvith Orders. Upon the issuance of an order against any defendant or de- fendants, after hearing, investigation, and report by the com- mission, such defendant or defendants must promptly notify the secretary of the commission, upon the date when such order be- comes effective, as to whether such defendant or defendants has complied or not with the provisions of said order; and when a change in rates is required, such notice must be given in addition to the filing of a schedule or tariff showing such change in rates. XIX. — Application hy Carriers Under Proviso Clause of Fourth Section. Any common carrier may apply to the commission, under the proviso clause of the fourth section, for authority to charge for the transportation of like kind of property less for a longer than for a shorter distance over the same line, in the same direction, the shorter being included within the longer distance. Such ap- plication shall be by petition, which shall specify the places and traffic involved, the rates charged on such traffic for the shorter and longer distances, the carriers other than the petitioner which may be interested in the traffic, the character of the hardship claimed to exist, and the extent of the relief sought by the peti- tioner. Upon the filing of such a petition, the commission will take such action as the circumstances of the case seem to reciuire. XX. Information to Parties. The secretary of the commission will, upon request, advise any party as to the form of petition, answer, or other paper neces- 254 Forms of Procedure [§ 167. sary to be filed in any case, and furnish such information from the files of the commission as will conduce to a proper presen- tation of facts material to the controvers.y. XXI. — Address of the Commission. All complaints concerning anything done or omitted to be done by any common carrier, and all petitions or answers in any pro- ceedings, or applications in relation thereto, and all letters and telegrams for the commission, must be addressed to Washington, D. C, imless otherwise specially directed. § 168. Forms. — The commission has prescribed certain forms, saying: "These forms may be used in cases to which they are applicable, with such alterations as the circumstances may ren- der necessary. ' ' These forms follow: No. 1. Complaint Against a Single Carrier. Interstate Commerce Commission. A. B. ") against V The Eailroad Company, j The petition of the above-named complainant respectfully shows : I. That (here let complainant state his occupation and place of business) . II. That the defendant above named is a common carrier en- gaged in the transportation of passengers and property by rail- road between points in the State of and points in the State of , and as such common carrier is subject to the provisions of the act to regulate commerce, approved Feb- ruary 4, 1887, and acts amendatory thereof and supplementary thereto. III. That (here state concisely the matters intended to be complained of. Continue numbering each succeeding paragraph as in Nos. I, II, and III.) § 167.] Before Interstate Commerce Commission. 255 Wherefore the petitioner prays that the defendant may be re- quired to answer the charges herein, and that after due hearing and investigation an order be made commanding the defendant to cease and desist from said violations of the act to regulate commerce, and for such other and further order as the com- mission may deem necessary in the premises. (The prayer may be varied so as to ask also for the ascertainment of lawful rates or practices and an order requiring the carrier to conform there- to. If reparation for any w^rong or injury be desired, the peti- tioner should state the nature and extent of the reparation he deems proper.) Dated at , , 190 . A. B. (Complainant's Signature.) ********* No. 2. Complaint Against Two or More Carriers. Interstate Commerce Commission. A. B. ^ against [ The Railroad Company, ^ and I The Railroad Company, j The petition of the above-named complainant respectfully shows : I. That (here let complainant state his occupation and place of business.) II. That the defendants above named are common carriers en- gaged in the transportation of passengers and property by con- tinuous carriage or shipment, wholly by railroad (or partly by railroad and partly by water, as the case may be), between points in the State of and points in the State of , and as such common carriers are subject to the pro- visions of the act to regulate commerce, approved February 4. 1887, and acts amendatory thereof or supplcinontaiy tliereto. (Then proceed as in Form I.) 250 Forms of Procedure [§ 167. No. 3. Answer. Interstate Commerce Commission. A. B. \ against v The Railroad Company. \ The above named defendant, for answer to the complaint in this proceeding, respectfully states: I. That (here follow the usual admissions, denials, and aver- ments. Continue numbering each succeeding paragraph). Wherefore the defendant prays that the complaint in this i)ro- ceeding be dismissed. . The Railroad Company, By E. F. (Title of Officer) No. 4. Notice by carrier under Rule V. Interstate Commerce Commission. A. B. \ against >- The Railroad Company, j Notice is hereby given under Rule V of the Rules of Practice in proceedings before "the commission that a hearing is desired in this proceeding upon the facts as stated in the complaint. The Railroad Company, By E. F. (Title of Officer) § 167,] Before Interstate Commerce Commission. 257 No. 5. Subpoena. To , You are hereby required to appear before in the matter of a complaint of against , as a wit- ness on the part of on the . . . day of , 190 , at . . . o'clock, ... m. at , and bring with you then and there Dated (Seal) Commissioner. Attorney for (NOTICE. — Witness fees for attendance under this subpcena are to be paid by the party at whose instance the witness is sum- moned, and every copy of this summons for the witness must contain a copy of this notice.) No. 6. Notice of taking depositions under Rule XII. Interstate Commerce Commission. A. B. ] against v The Railroad Company, j You are hereby notified that G. H. will be examined before C. D., a (title of officer or magistrate), at . . ., on the day of 190 , at . . . o'clock in the noon, as a witness for llic above named complainant (or defendant, as the case may be), according to act of Congress in such case 258 Forms of Puoceduke [§ 167. made and provided, and the Enles of Practice of the Interstate Commerce Commission, at which time and place you are notified to be present and take part in. the examination of the said wit- ness. Dated , 190 . I. J. (Signature of complainant or defendant, or of counsel) To A. B., the above-named complainant (or The Rail- road Company, the above-named defendant; or to K. L., coun- sel for the above named comphiinant or defendant.) CHAPTER V. ENF0RCE:\IENT by the courts of the act to REG- ULATE COMMERCE, INCLUDING A DISCUSSION OF THE EFFECT GIVEN BY THE COURTS TO THE ORDERS AND FINDINGS OF THE COMMISSION. § 200. Jurisdiction of the courts of the states to enforce provisions of the act to regulate commerce. 201. The enforcement of the provision making initial carrier liable for loss and damage. 202. Jurisdiction of the courts of the United States to compel the at- tendance of witnesses before the commission and enforce obedi- ence to the act. 203. Jurisdiction of the courts to enforce orders of the commission. 204. The effect to be given by courts to orders of the commission re- quiring carriers to desist from some particular practice. 205. Orders of reparation. Effect given by the courts. 206. The force of the commission's orders fixing rates, rules and practices to be observed in the future. § 200. Jurisdiction of the courts of the states to enforce pro- visions of the act to regulate commerce. — The act to regulate com- merce in the rights therein specified does little more than to ex- press the law as it existed at common law. The right to reason- able rates was admittedly a common law right, and the Su- preme Court of the United States we have seen infra decided that equality of treatment under substantially similar circum- stances was also a common law right. The prohibition of pool- ing, the requirement of continuous transportation, that through routes and joint rates shall be established, that tariffs shall be filed, maintained and made public, and the other limitations on the conduct of common carriers, while requiring more than was their duty at common law, are all but provisions to make effec- tive the great common law right to reasonable charges without unjust discrimination or undue preference. These remedies and others provided in the act are in addition to, though not in dero- gation of. the common law remedies. Whenever a court is men- tioned in the statutes, the courts of the United States are the 259 260 Enforcement p.v the Courts [§200. ones named. The power to regulate coniinerce between the states and with foreign countries is vested exclusively in the legislative branch of the federal government. "The exclusive power of legislation necessarily includes the exclusive jurisdic- tion," says Mr. Justice Moody, speaking of another kind of jurisdiction, in Western' Union Tel. Co. v. Childs, 214 U. S. 274, 278, 53 L. Ed. Sup. Ct. . The state can not exercise power directly over interstate commerce, and, if the state has no power, it would seem to follow that its courts, which are but branches of the state government, would also be without the jurisdiction to exercise the judicial power over that com- merce. The state courts might enforce a mere right growing out of contracts relating to interstate commerce although the right be given by act of Congress, provided such power in the state courts could be exercised compatibly with the general purposes of the act. The act does not expressly exclude the state courts from all exercise of jurisdiction, but as said by Mr. Justice Story ,^ "it is manifest that the judicial power of the United States is unavoidably, in some cases, exclusive of all state authority, and, in all others, may be made so by Congress." From these facts and from the inherent lack of power in the courts of the sev- eral states to enter decrees that could be enforced against an il- legal practice or rate that extends beyond the borders of such state; it would seem that in cases arising under the act to regu- late commerce that the judicial power of the United States is "unavoidably * * * * exclusive of all state authority." As early as 1888 Judge Thayer held that a suit to recover damages for a violation of the act to regulate commerce w^as one of which the federal courts had exclusive jurisdiction, and that such was the law "even if the acts complained of do give a right of action at common law. "^ The case of Kentucky and Indiana Bridge Co. v. Louisville & Nashville R. Co.' was founded upon an order of the Interstate Commerce Commission, and by the express language of the statute, section 16, was triable in the courts of the United States. Judge Jackson, however, held the case to be "the institution of an original proceeding in court, where all questions were to be reheard and re-examined de ^Martin v. Hunter, 1 Wheat. 14 ^57 Fed. 567, 614, 615, 2 L. K. U. S. 304, 377, 4 L. Ed. 97. A. 289, 2 I. C. E. 351. ^ Conor V. Vicksburg & M. R. Co., 36 Fed. 273, 1 L. K. A. 331. § 167.] OF THE Act to Eegulate Commerce. 261 novo." Upon this holding, the question arose as to the jurisdic- tion of the court, and upon this point Judge Jackson said : "As an original and independent suit, can the jurisdiction of this court be maintained, inasmuch as both petitioner and re- spondent are corporations (and therefore citizens of the State of Kentucky) ? "We think there can be no doubt on this C|ues- tion. The right asserted by petitioner arises and is claimed under a law of the United States, which relates to a subject-mat- ter over which Congress had exclusive control. This is sufficient to sustain the court's jurisdiction, independent of the citizenship of the parties to the controversy, since it involves a federal ques- tion." The terms of the act require suits brought under sections eight and nine to be brought "in any district or circuit court of the United States of competent jurisdiction," and, therefore, suits for damages under the act to regulate commerce are, by express enactment, within the exclusive jurisdiction of such courts.* In Texas & Pac. Ey. Co. v. Abilene Cotton Oil Co.,^ the Supreme Court decided that a state court had no jurisdiction to maintain a suit for damages against a common carrier for charging an un- reasonable rate on the transportation of interstate freight. This decision was not placed upon the theory of exclusive jurisdiction in the federal courts but upon the principle that courts could not prior to action by the Interstate Commerce Commission de- termine the question of whether or not a particular rate which had been set out in a schedule of charges duly tiled with the commission was reasonable. The argument of the court, how- ever, does support the conclusion here stated. In Northern Pa- cific Ry. Co. v. Pacific Coast Lumber Mfrs. Asso.," the circuit court of appeals for the Ninth Circuit had before it an appeal from an interlocutory order enjoining certain carriers engaged in interstate commerce from making an unreasonable advance in rates on interstate transportation. In the lower court the carriers had contended that as they were not inhabitants, of the district in which the suit was brought, the circuit court had no jurisdiction to enter an order against them. In the circuit court of appeals the question was fully discussed, authorities cited and * Van Patten v. Chicago, M. & St. ■' 204 U. S. 420, 51 L. Ed. 553, 27 P. R. Co., 74 Fed. 981. See also Sup. Ct. 350. Sheldon v. Wabash R. Co., 105 Fed. "165 Fed. ], 9, 10. 785. 2G2 Enforcement by the Courts [§200. the conclusion reached that the jnrisdiction of federal courts in such a case was exclusive, and being exclusive, suit could be maintained wherever the defendants could l)e found and served. Though Judge Eoss dissented from the majority opinion of the court, on this point he agreed.^ The case of j\lurray v. Chicago & N. W. Ky. Co.' contains an interesting discussion and is here reproduced: "A further point is made in support of the demurrer, to the effect that this court succeeds only to the jurisdiction of the state court in which the action was originally brought, and that state courts have no jurisdiction over cases arising out of inter- state commerce, the argument being that, as the state cannot legislate touching interstate commerce, the state courts are with- out power to determine cases of the like character. This posi- tion is not well taken. The limitations upon the legislative power of the nation and of the several states do not necessarily apply to the judicial branches of the national and state govern- ments. The legislature of a state cannot abrogate or modify any of the provisions of the federal constitution nor of the acts of Congress touching matters within congressional control, but the courts of the state, in the absence of a prohibitory provision in the federal constitution or acts of Congress, have full jurisdic- tion over cases arising under the constitution and laws of the United States. The courts of the states are constantly called upon to hear and decide cases arising under the federal consti- tution and laws, just as the courts of the United States are called upon to hear and decide cases arising under the law of the state, when the adverse parties are citizens of different states. The duty of the courts is to explain, apply, and enforce the ex- isting law in the particular cases brought before him. If the law applicable to a given case is of federal origin, the legislature of a state cannot abrogate or change it, but the courts of the state may apply and enforce it; and hence the fact that a given sub- ject, like interstate commerce, is beyond state legislative control, does not, ipso facto, prevent the courts of the state from exer- cising jurisdiction over cases which grow out of this commerce. Had this action remained in the state court in which it was ^ Union Pac. E. Co. v. Oregon & * Murray v. Chicago & N. W. Ry. Washington L. M. Asso., 165 Fed. Co., 62 Fed. 24, 42, 43. Affirmed, 13, 18. 92 Fed. 868, 35 C. C. A. 62. § 200.] OF THE Act to Regulate Commerce. 263 originally brought, that court would have had jursdiction to hear and determine the issues between the parties, because Con- gress had not enacted that jurisdiction over cases of this char- acter is confined exclusively to the courts of the United States, and therefore the jurisdiction of the state court was full and complete. ' ' This extensive quotation from the opinion of Judge Shiras is inserted because it presents the arguments against the posi- tion here taken. In considering the effect of this opinion, which was affirmed by the circuit court of appeals, it should be re- membered that the cause of action there sued on arose prior to the enactment of the interstate commerce act, and was, there- fore, to be construed under the principles of the common law, which principles controlled the liability of interstate carriers prior to the passage of an act of Congress on the subject. "While some of the arguments of Judge Shiras might appear to militate against the conclusion here adopted, he meant t& confine his arguments to that particular case, for we see him holding in the Van Patten Case, note \ supra, that after the passage of the act to regulate commerce suits for damages for an un- reasonable charge were cognizable only in the federal courts. In another case, like the Murray case, supra, removed from a state court, but differing from that case in that it arose under the act to regulate commerce, it was held that the state court had no jurisdiction." The decision of the Supreme Court in Louisville & N. R. Co. v. Mottley, 211 U. S. 149, 53 L. Ed. 29 Sup. Ct. 42, does not conflict with the contention here made. The plaintiff's case rested solely on a contract, and though the de- fense was based upon the act to regulate commerce, that fact did not appear in plaintiff's statement in his case. The same can be said of Re Winn, 213 U. S. 458, 53 L. Ed. , 29 Sup. Ct. See also the decision of Circuit Judge Taft in Toledo, etc., R. Co. V. Pa. Co. (C. C.) 54 Fed. 730, 19 L. R. A. 387; 5 I. C. C. R. 545, 22 U. S. App. 561. "It is immaterial," said the learned judge, "what rights the complainant would have had before the passage of the inter- state commerce law. It is sufficient that Congress, in the con- stitutional exercise of power, has given the positive sanction of » Swift V. Philaflelphia & K. E. v. Til. Cent. R. Co., 80 Fed. 78. Co., .58 Fed. 858. See also Edmunds 264 Enforcement uv the Courts [§200, federal law to the rights secured in the statute, and any case in- volving the enforcement of those rights is a case arising under the laws of the Ignited States." And said Chief Justice Marshall in Osborn v. Bank, 9 Wheat. 738, 6 L. Ed. 204 : ''We think, then, that when a question to which the judicial power of the union is extended by the constitution forms an in- gredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or law may be involved in it." See also Judge Speer in Tift v. Southern Ry. Co., 123 Fed. 789. The state courts have generally held that they had no juris- diction of causes of action arising under the act. Two leading cases on the subject are Gulf, C. & S. F. Ry. Co. v. Moore by the Supreme Court of Texas, 98 Tex. 302, 83 S. W. 362, and Copp V. Louisville & N. R. Co. by the Supreme Court of Louisiana, 43 La. Ann. 511, 9 So. 441, 3 I. C. R. 625. The reasons given in the Copp Case, supra, are short and cogent. The court said: "In the instant case the right asserted by the plaintiff is claimed under an act of Congress which specifies the remedy for its enforcement. This circumstance suffices to evidence that Congress saw fit to give the federal courts exclusive jurisdiction, the motive which induced such legislation may have been, and no doubt is, to create one entire and complete system, and pro- vide for the necessary uniform machinery to make it effective on an important and vital subject of national interest. See further Sutherland, Stat. Const. Sec. 399; Dudley v. Mayhew, 3 N. Y. 9 ; The IMoses Taylor, 71 U. S. 4 Wall. 429, 18 L. Ed. 397 ; Martin v. Hunter, 14 U. S. 1 Wheat. 334, 4 L. Ed. 104 ; Ex parte McNiel, 80 U. S. 13 Wall. 236, 20 L. Ed. 624." The very full discussion of this question by Mr. Justice Brad- ley citing Alexander Hamilton in the 82d number of the Fed- eralist, in Claflin v. Houseman,'" in no way conflicts with our conclusion, for he there recognizes that there is no jurisdiction in the state courts where it is "excluded by express provision or by incompatibility in its exercise arising from the nature of the particular case," and that the jurisdiction of the federal courts is "sometimes exclusive by implication." In so far as special "93 U. S., 3 Otto 130, 23 L. Ed. 833. § 201.] OF THE Act to Regulate Commerce. 265 remedies are prescribed the act to regulate commerce by express enactment excludes the state courts, and in so far as equitable remedies to enforce the rights reserved by section twenty-two of the act, state courts are excluded by implication and the na- ture of the case. The argument here made and the conclusion reached is not applicable to the rule of law fixing liability of initial carriers, which rule is stated in section twenty of the act and which rule will be discussed in the next succeeding section hereof. § 201. The enforcement of the provision making the initial carrier liable for loss and damage. — At common law a carrier must transport to the end of its line, but when the commodity is delivered to the connecting carrier in good order, its liability ceased, unless it contracted to deliver at the point of final des- tination, and even when such a contract was made, by the same contract the carrier could limit its liability to its o\^^l line. Where commodities are transported over several lines and dam- age resulted, the shipper was frequently luiable to prove which particular carrier was liable for the loss or injury." The last connecting carrier receiving goods "as in good order" was pre- sumptivel}^ liable for the damage. This is a statute in Georgia." To make it possible for shippers to collect for loss and damage and at the same time to allow carriers to adjust between them- selves the loss so that the innocent would not suffer, Congress, in the Hepburn amendment, enacted this provision : "That any common carrier, railroad, or transportation com- pany receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or trans- portation company from the liability hereby imposed : Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." "Ilutcheson on Carriers, 3d Ed., "Georgia Code 1895, § 2298. § 225 et seq. 2G6 Enforcement by the Courts [§201. In holding this provision valid, Judge Speer forcibly and ac- curately points out the evils it sought to remedy. Speaking of shipments across the continent, he says : " "The countless losses of such shipments and their important values, became an incalculable injury to the shippers and a burden upon their business. The failure to speedily ad- just such losses became the chief contributing cause of this in- jury to the shipper. Official reserve and official indifference, amounting at times to that 'insolence of office,' the chief est of those 'spurns which patient merit of the unworthy takes,' often greeted the efforts of business men and others to obtain redress. Every shipper of consequence, every practicing attorney hold- ing claims arising from such delinquencies, every judge trying such claims, can readily recall the circumlocution and the con- sequent insufferable delay in the adjustment of liability of the plainest character. Each claim, it seems, must be apparently scrutinized often by more than one department of each succes- sive railroad extending from the point of delivery to the point of destination. It did not matter how many such railroads there might have been, how great the distance, how long the time con- sumed, how imreasonable the delay, how injurious the loss. Each employe with relating duties must at his leisure contemplate the claim in every light of which it was capable, write the re- sult of his discoveries thereon, and forward it to the agent of the connecting line, or to all of the agents of each of the connecting lines. In the meantime the shipper was suffering the accumu- lating injury resulting from the loss of his goods, the interrup- tion of his business, the deprivation of interest on the sum in- volved, and possibly the loss of other business from the disap- pointed and exasperated customer, attending the slow return of the now bullry^ file. At length, after the obviously just demand has been leisurely scrutinized by all the 'Tite Barnacles' of this unprecedented circumlocution, the shipper had usually to con- tent himself with a curt refusal to pay anything. Happily for him, however. Congress has opened the national courts for his claim, no matter how small the amomit, and, in order to impart some degree of celerity to the mental or meditative activities of the 'Tite Barnacles' aforesaid, the penalty of reasonable at- "Eiversicle Mills v. Atlantic C. 992. L. K. Co., 168 Fed. 987, 990, 991, § 201.] OF THE Act to Eegulate Commerce. 267 torney's fees, to be fixed by the court, is also granted by the law." Notwithstanding the great ability of the .judge who wrote the above opinion, it would seem to be doubtful that attorney's fees are collectible under this provision. Section eight provides for attorney's fees when damages are recovered for a violation of any of the provisions of the act. The initial carrier liability clause of section twenty merely makes the initial carrier liable for "loss, damage or injury" caused to the property by it or any connecting carrier. The purpose of the provision was to fix a rule of law to enable a shipper to recover damages when his goods were lost or injured, not to increase the amount of the recovery. The law also prevents a carrier from making a contract limiting its common law liability where the loss is ''caused by it or any connecting carrier." It would seem that a carrier might yet, by contract, relieve itself from liability as an insurer, remaining liable, however, for its o^\ti and its con- necting carriers' acts. This is the opinion of Mr. Commissioner Lane in his discussion of the subject, where he says : " "The rule, roughly stated, is that a common carrier is liable for all losses not occasioned bj^ the act of God or the public enemy. But the carrier's right to relieve itself to some extent from this complete responsibility, by special agreement or no- tice, has long been recognized. It may strip itself of its in- surer's liability and remain responsible only for its negligence and other misconduct. York Manufacturing Co. v. I. C. K. E. Co., 3 Wall., 70 U. S. 107, 18 L. Ed. 170; N. Y. C. & H. R. R. Co. V. Lockwood, 17 Wall., 84 U. S. 357, 21 L. Ed. 627. "The law on this point is well settled, and a careful study of the provisions of the Hepburn act will show that the carrier's right in this respect has not been abrogated. The law reads that the carrier shall be liable 'for any loss, damage, or injury to such property caused by it * * * and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.* The scope of this prohibition must turn largely upon the con- struction to be placed upon the word 'caused.' The word 'caused' is not susceptible of a narrow interpretation — it is broad enough to comprehend all losses due to the carrier's misconduct, " Re Released Rates, 13 I. C. C. R. 550, 552. 268 Enforcement uy the Courts [§ 201. Avhether positive or negative in character. But it can not pos- sibly be extended to cover losses due to causes beyond the car- rier's control. We are necessarily driven to the conclusion, therefore, that the law places no restriction upon the carrier's efforts to exempt itself from liability for losses which occur with- out fault on its part. We are of the opinion, in short, that in the absence of agreement or notice the carrier's liability is gov- erned by the ordinary common-law rule ; but that a stipulation for exemption from liability for losses due to causes beyond the carrier's control is open to no legal objection." The validity of the act was sustained by Judge Kogers in Smeltzer v. St. Louis & S. F. R. Co.'" See also cases cited, § 659 post. This is a law that may be enforced either in the state or fed- eral courts. This is true because there is nothing in the law which makes the exercise of jurisdiction by state courts incom- patible with the purpose of the clause ; and it can not be implied that Congress has given the federal courts exclusive jurisdiction over suits for damages arising out of a breach of contract to transport goods from one state to another merely because it passed a law making the initial carrier liable for the acts of its agents to whom it delivered the goods. W^here equality and rea- sonableness of rates are in issue, the state courts could not ex- ercise jurisdiction compatibly with the purposes of the act to regulate commerce.'" This question is ably discussed by Judge Powell, of the court of appeals of Georgia, and while his intimation that the federal courts have no jurisdiction is probably incorrect, his conclusion that the state courts have concurrent jurisdiction is supported by the authorities and by sound logic. Judge Powell says : " "The acts of Congress made in pursuance to the Constitution of the United States constitute a part of the laws of this state and are binding on the courts as such. The state courts ordi- narily have jurisdiction to enforce rights and liabilities created by congressional action where the exercise of that jurisdiction "158 Fed. 649. 841, 58 S. E. 197; Atlantic C. L. R. "§ 200 ante. Co. v. Henderson, 131 Ga. 75, 61 "Southern Pac. Co. v. Crenshaw, S. E. 1111; Southern Ry. Co. v. 5 Ga. App. 67.5, 63 S. E. 865. See Frank, 5 Ga. App. 574, 63 S. E. also cases cited, and Central of Ga. 656. Ry. Co. V. City Mills Co., 128 Ga. § 202.] OF THE Act to Regulate Commerce. 269 would not conflict with the plans and purposes manifested by the nature of the terms of the federal enactment; and this is true whether the statute creating the right is as to the common law declaratory or derogatory." § 202. Jurisdiction of the courts of the United States to com- pel the attendance of witnesses before the commission and enforce obedience to act. — Upon the request of the commission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act. In case of disobedience of the sub- poena of the commission, it may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said com- mission and produce books and papers if so ordered and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. Forfeitures for violations of the act are recoverable in a civil suit, in the name of the United States, brought in the district where the carrier has its principal of- fice, or through which its road runs. Circuit and district courts of the United States have jurisdiction upon the relation of any person, firm, or corporation alleging a violation of the provisions of the act that prevents the relator from having interstate traf- fic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ. The writ of mandamus is cumulative and may issue upon sucti terms as the court may prescribe, notwithstanding there may be 270 Enforcement by the Courts [§ 203. undetermined questions of fact as to the proper compensation to the carrier. Discrimination may be summarily enjoined. These provisions are discussed elsewhere and such discussion need not be repeated.'* The penal provisions of tlie act are, of course, enforcible only in the federal courts. § 203. Jurisdiction of the courts to enforce orders of the com- mission. — The orders of the connuission may be classified, for the purposes of this section, as of four general kinds: (1) Purely administrative orders, such as prescribing forms of schedules, forms of reports and systems of accounting, orders requiring the attendance of witnesses, production of papers, and other similar administrative orders. (2) Orders requiring the carriers to desist from some partic- ular act or practice fomid by the commission to be in violation of the act. (3) Orders for reparation. (4) Orders prescribing a rule, rate or practice which the car- rier is enjoined to obey for the future. The effect of the orders of the commission with reference to the attendance of witnesses has already been discussed. The purely administrative orders of the commission, such as forms of tariff schedules, forms of accounting and similar orders, are not of that character likely to reach the courts. "When adminis- trative orders are such as to require the action of the courts, they usually fall within and would be governed by the same principles of law as those mentioned in paragraph two of the above classification. Orders contemplated in paragraph four of this classification could not be made by the commission prior to the Hepburn amendment. Prior to the Hepburn act the orders of the commission were not effective unless voluntarily obeyed by the carrier, they are now binding upon carriers unless set aside by the courts. It is, however, probably true that if the order of the commission is void, though regularly made and duly served, carriers would incur no penalties in its disobedience. It is also provided that the courts may, since the passage of the Hepburn act, enforce obedience to the orders of the commission. The effect of orders " Ante §§ 160, 161, post 525, 535, 551, 552, 553, 567, 574, 580. § 204.] OF THE Act to Regulate Commerce. 271 under divisions two, three and four, supra, will be separately discussed in the next succeeding sections. § 204. The effect to be given by courts to orders of the com- mission requiring carriers to desist from some particular practice. — In addition to penalties prescribed for violations of the act which are enforcible only in the courts of the United States, the commission is authorized and required to enforce its provisions. To this end it may inquire into the management of the business of all common carriers and may investigate inquiries on its own motion. In addition to the power to prescribe what regulation or practice in respect to transportation shall be observed for the future, it may make an order that a carrier shall cease and desist from any violation of the provisions of the act. The effect of the act of the commission prescribing a rule or regulation for the future will be subsequently discussed. When it is decided that any regulations or practices whatsoever of such carrier or car- riers affecting such rates are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or other- \vise in violation of any of the provisions of this act, the com- mission may make an order that the carrier shall cease and de- sist from such violation. The statute, it is seen, limits the power of the commission to order carriers to ''cease and desist" from violations of the act. If, therefore, a carrier were ordered to cease and desist from some act not violative of the act, it would seem that the order would be ineffective. This, however, does not leave the com- mission without power in this respect. Discrimination, when imjust, is prohibited. Some tribunal must of necessity determine whether or not a particular practice is unjust discrimination. The courts, in suits brought under section twenty-three of the act to regulate commerce, or section two of the Elldns act, may determine this question, at least under section two, without the aid of the commission. Post §§ 574, 580. The commission may determine this and other similar questions affecting violations of the act and when it does so and the courts are called upon to enforce its orders, the question arises as to what effect shall be given by the courts to such orders. Are such orders legislative or administrative? On the answer to this question would seem to depend, to some extent, the force of the orders when called in question in the courts. They are pot orders fixing rules for the future, except so far as incidental- 2(2 Enforcement by the Cot^rts [§204. ly an order not to do a thing somewhat determines conduct for the future. Tested by the rule annoimced by Mr. Justice Holmes in the Virginia Kate Case," that ''the establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial in kind," an order of the com- mission merely directing a discontinuance of a particular practice would fall within the administrative power of that tribunal. Prior to the Hepburn amendment all orders of the commission had to be enforced through the courts, and all its orders were made prima facie legal. This amendment made all orders, except reparation orders, self executory, unless enjoined or set aside by the courts, and the prima facie rule was not applied to any but reparation orders. The effect of this amendment on orders fixing rules for the future will be dis- cussed in the further course of this chapter. The orders here under discussion being administrative would seem to be legal or not as they were or were not authorized by the act. Whether a particular rule or practice violates the act depends upon the effect of such rule or practice. What may be its effect is a ques- tion of fact. AVhen the commission, after full hearing, de- termines the question of fact, what force will be given to that determination by the courts. Prior to the amended act the com- mission having ordered a common carrier to "cease and desist from refusing to carry common soap in car-load lots at sixth- class rates, and from refusing to carry common soap in less than car-load lots at fourth-class rates," such order was sus- tained by the Supreme Court, which court in sustaining the order said : ^^ "The statute gives prima facie effect to the findings of the commission, and, when those findings are concurred in by the circuit court, we think they should not be interfered with unless the record establishes that clear and unmistakable error has been committed. See Cincinnati, N. 0. & T. P. R. Co. v. Inter- state Commerce Commission. 162 U. S. 184, 194, 40 L. Ed. 935, 938, 5 Inters. Com. Rep. 391. 16 Sup. Ct. Rep. 700; Louisville & N. R. Co. v. Behlmer, 175 U. S. 648, 672, 44 L. Ed. 309, 318, 20 Sup. Ct. Rep. 209." "•211 U. S. 210, 226, 53 L. Ed. Int. Com. Com., 206 U. S. 142, 14.5, , 29 Sup. Ct. 67. 154, 51 L. Ed. 995, 997, 1000, 2? ''Cincinnati, H. & D. E7, Co, v. Sup. Ct. 648. § 204.] OF THE Act to Regulate Commerce. 273 The purpose of the Hepburn amendment was not to lessen, but to increase, the power of the commission and its administra- tive orders are now effective unless enjoined or set aside by the courts, and when disobeyed and suits are brought to enforce them if they are within the power of the commission to pass and are ''regularly made and duly served," the courts would, at least, regard the findings of fact upon which the order was based as being prima facie true, and the same effect would be given such orders when suit was brought by the carrier to enjoin or set them aside. The case of New York C. & H. E. R. Co. v. Int. Com. Com.,=' is a very interesting and instructive one on this point. The opinion was written by Judge Noyes, who, as an author, has shoT^Ti himself to have a comprehensive grasp of questions affect- ing carriers. The opinion is concurred in by Judge Lacombe, Judge Ward dissenting. The case arose on the application of the carriers to set aside and enjoin an order of the commission requiring the carriers to cease and desist "from according to flour milled in transit at interior points a lower rate for ex- port than is imposed upon the grain of the complainant at New York City, which is subsequently ground into flour and other grain products and exported; but this order is made upon con- dition that said defendants establish the necessary regulations to make certain that the grain upon which the export flour rate is applied is actually exported as flour or other grain products, for which defendants may impose a proper charge to cover the cost of executing such regulations." The first ground of objec- tion to the validity of the order was that it did not specify how long it was to remain in force, the second ^as that it did not fix the just and reasonable maximum charge to be observed in the future. Each of these grounds were overuled. Discussing the second objection the court says : 'If the power conferred upon the commission were simply and alone to prescribe maximum rates, there would be much force in the complainants' contention. There is a marked dis- tinction between that poAvcr and the power to fix minimum or absolute rates. There is still greater distinction be- tween it and the power to fix relative rates; for, strictly speaking, power to prescribe the relations which shall *^]68 Fed. 131. 274 Enforcement by the Courts [§204. exist between charges is not power to fix them at all. It is nec- essary to look further than to the power to prescribe maximum rates to find authority for the order in question. This order at- tempted to remove the discrimination against the milling com- pany. It prescribed, in substance, that the charges against it should be the same as those charged other shippers for services similar in their nature. It did not prescribe how the charges should be ec[ualized. Raising the rate to the western shipper Avould have complied with the order as well as lowering the rate to the milling company. The end to be attained was the re- moval of the discrimination. Now, the removal of discrimina- tions is one of the primary purposes of the act to regulate com- merce, its supplements and amendments. jMany provisions are directed to that end. Consequently it is not to the specific power to prescribe maximum rates, but to the broad powers, ap. plicable in the case of violations of the act by unjust discrimina- tions, conferred by section 12, 'to execute and enforce the pro- visions of this act,' and by section 15, 'to make an order that the carrier shall cease and desist from such violation to the ex- tent to which the commission find the same to exist,' that resort must be had. The complainants apparently do not question the poAver of the commission to order them to desist from the unjust discrimination, but they contend that the commission can not stop there — ^that such determination is merely antecedent it,o the fixing of a new maximum rate. If this be so, the act loses much of its effectiveness. Discriminations are as well accom- plished by low^ering as by raising rates. If the commission had prescribed in the present order as the maximum rate the pres- ent charge to the w^estem millers, the same condition would be brought about by making a new and lower rate to them. We think any such construction of the act W'Ould fail to give due effect to its provisions, and that the powers conferred by section 12 and 15 furnished the commission authority to make the order in question, and did not require them to go further." The next contention was that the order was invalid because it failed to correct the most serious discrimination found by the commission — that in favor of foreign millers. To this conten- tion the court answered: "That the order was not rendered invalid by being less comprehensive than it might have been. If it removed one discrimination it was not inoperative because §204.] OF THE Act TO Regulate Commerce. 275 it failed to remove others. It was lawful as far as it went, even if it did not go as far as it might." It was next insisted that the order is invalid because it re- quires the complainant to establish regulations and practices not connected with interstate transportation. It was argued that this contention was unsound, but the court said: ''But we are not called upon to determine the precise question thus presented * * * * the order relates solely to transportation." It was next urged that the order was invalid because not con- fined to the issues raised. Upon this objection the court said : ''The milling company specifically asked the commission to order the carrier to fix the rate upon grain which it shipped from Chicago points to New York harbor at the same amoimt as was fixed upon export grain. The commission did not grant this relief, but, instead, gave the milling company the benefit of the rate upon flour milled in transit and exported. But as the peti- tion of the milling company also prayed for further and general relief, we should find no difficulty in sustaining the order not- withstanding this variance, if there were any facts in the peti- tion concerning the milling in transit rate or any showing that the milling company should be placed upon the same basis as those enjoying it. But the petition contains no reference to such privilege. Indeed, the complaint seems to be regarding rates enjoyed by millers at Chicago and west thereof, instead of by those located on the carrier's lines east of Chicago and en- joying the milling in transit privilege. If this order were a judgment of a court, we should without hesitation say that the facts alleged in the petition did not support it. The Interstate Commerce Commission, is, however, an administrative tribunal dealing with practical problems. So long as the parties af- fected by its orders appear and are fully heard, we think it would be most unfortimate to deny its power to grant such relief as the facts shoAvn upon the investigation should call for, even though such facts might be presented by evidence techni- cally outside the issues raised. Notwithstanding, therefore, that the commission has established rules of practice analogous to those in courts, notwithstanding that its rules even provide that hearings shall be had upon issue joined, we are of the opinion tliat the strict rules of pleading should not be held applicable to it. Before we declare an order of the connin'ssion invalid as being outside the issues, we think that we should be satisfied that 2/6 Enforcement by the Courts [§204. it is outside the issues actually presented to the commission and upon which the parties were heard. We have, therefore, thought it our duty to examine the evidence and consider the claims of the parties made upon the hearing before the commission. Through such examination Ave find that the milling company and the carriers appeared before the commission, and that the vari- ous phases of the discriminations claimed to exist against the milling company were fully inquired into, including that claimed to exist in favor of interior millers enjoying the milling in tran- sit privilege. As the hearing progressed, its scope apparently widened, and at its conclusion we are satisfied that the real ques- tion before the commission in the minds of all the parties was whether it was proper and practicable to afford relief like that granted by the order. Indeed, we have no doubt that should we declare this order invalid, and a new petition should be filed, the inquiry' would be along the lines of the hearing already had, with, presumably, the same result. We conclude, therefore, thut, while the order may have been technically outside the issues raised by the pleadings, it was still germane to the subject- matter before the commission, and should not be declared in- valid. '^That which has just been said is also applicable to the con- tention of the complainants that the order is invalid because, while the milling company made no complaint with respect to the grain product rate, the order gives it the benefit of the lower flour rate upon all its grain products. The whole subject was fully presented to the commission. If there was error or inad- vertence in according to all the milling company's products the flour rate, application might perhaps be made to the commis- sion to correct it. But we cannot hold as a matter of law that the order was rendered invalid thereby." The opinion concludes with the last contention of the carriers as follows: "The final contention of the complainants is that it is im- possible as a practical matter to comply with the order, and that it should be set aside as unenforceable. This objection is not strictly a legal one, but involves the reasonableness of the order. We shall not enter into a full examination of it upon this pre- liminary application. Indeed, the extent to which this court imder the Hepburn amendment may inquire into the mere rea- sonableness of orders made by the commission is a most serious § 205.] OF THE Act to Regulate Commerce. 277 question. Section 15 provides that orders of the commission shall take effect and remain in force a prescribed time, unless 'suspended or set aside by a court of competent jurisdiction.' Under one possible construction of this provision, a court could only set aside an order when it infringed upon a constitutional right of the carrier, or failed to comply with the provisions of the statute. The objections to the validity of the present order which have already been examined illustrate these questions which the court undoubtedlj^ has power to pass upon. On the other hand, under another possible construction of Ihe provi- sion, the court has power to pass upon the reasonableness of the orders of the commission upon their merits. AYe notice a trend in the decisions toward the latter construction, but we deem it inexpedient to express any opinion in the matter until after final hearing. For the present it is sufficient to say that, assuming that we have the broad power of revision, we are not now satis- fied from an examination of the moving papers that the order is unreasonable and impracticable. Certainly we think it is not so clearly impracticable that its enforcement should be suspended pending suit and without a trial of its working. "The complainants contend that a preliminary injunction should be granted because they would suffer irreparable damage if the order should be put into effect and should subsequently be held invalid. But we are unable to see how the damages to the carriers in that contingency would be any more irreparable than would be those of the milling company in case the order should be suspended, and should subsequently be held valid. "The application for a preliminary injunction is denied." In this case the court declines to pass upon the reasonableness of the order, but did refuse to temporarily enjoin it, it not being "clearly impracticable." The whole opinion is based upon the theory, which is the only one consistent with the purposes of the act, that unless the carriers can clearly and unquestionably show an order of the commission to be illegal its validity will be sustained. § 205. Orders of reparation. Effect given to by courts. — In the Abilene Case" the Supreme Court held that damages could not be recovered in a state court for the exaction of an unrea- "^ Texas & Pac. Ey. Co. v. Abilene L. Ed. .5.5.3, 27 Sup. Ct. 350. Cotton Oil Co., 204 U. S. 42G, 51 278 Enforcement by the Courts [§ 205, sonable rate on interstate transportation, where the rate charged was fixed in a schedule of rates duly filed with the Interstate Commerce Commission. In that ease there had been no prior ac- tion by the commission, and the argument there used would apply, though probably with somewhat less force had the suit been brought in a federal court. It may now be stated as a rule that reparation for illegal rates must be applied for first to the Interstate Commerce Commission. Whether or not a shipper's right to trade could be taken away without any right to apply to the courts by the refusal of the commission to declare a rate illegal has not been determined, though it is clear that shippers must first apply to ^he commission before sueing in the courts for damages. Section eight of the act to regulate commerce gives persons in- jured by a violation of the act the right to recover the full amount of damages sustained in consequence of any such viola- tion of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every ease of recovery. Complaint should be made to the commission, which may, after hearing and after a determination that the complainant is entitled thereto, make an order directing the car- rier to pay to the complainant the sum to which he is entitled on or before a day named. If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the circuit court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, a petition setting forth briefly the causes for which he claims damages, and the order of the com- mission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attornej-'s fee, to be taxed and collected as a part of the costs of the suit. The present law with reference to the subject is in legal effect the same as that prior to the Hepburn amendment and makes the order "prima facie § 205.] OF THE Act to Regulate Commerce. • 279 evidence of the facts therein stated." "What is meant by this is stated by the Supreme Court in 111. Cent. R. Co. v. Int. Com. Com.,"^ as follows: "The findings of the commission are made by law prima facie true. This court has ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by ex- perience. Louisville & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 809, 20 Sup. Ct. Rep. 209; East Tennessee, V. & G. R. Co. V. Interstate Commerce Commission, 181 U. S. 1, 27, 45 L. Ed. 719, 729, 21 Sup. Ct. Rep. 516. And, in any special case of conflicting evidence, a probative force must be attributed to the findings of the commission, which, in addition to 'knowledge of conditions, of environment, and of transportation relations,' has had the witnesses before it and has been able to judge of them and their manner of testifying." If the commission rejects a legal principle applicable to the facts of the complaint, the courts would refuse to enforce its order and refer the matter back to the commission to determine the facts upon the law announced b.y the court. This is illus- trated by the cases of Texas & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 5 I. C. R. 405, 16 Sup. Ct. 666; Int. Com. Com. v. Alabama M. R. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; Louisville & N. R. Co. v. Behlmer, supra. Of these cases the Supreme Court in the Illinois Central case, supra, says : "In all these cases, therefore, there was a single, distinct, and dominant proposition of law which the commission had rejected, and the exact influence of which, in its decisions, could be esti- mated. Indeed, they were mere constructions of the statute, the delegation of the commission's duties and power." It would seem, therefore, that when the commission follows the authority given in the statute, the power of attorney under which it acts, the effect given its findings should be those stated in Cincinnati, H. & D. R. Co. v. Int. Com. Com., where the Supreme Court says : ^ "The statute gives prima facie effect to the findings of the commission, and, when those findings are concurred in by the ^Tll. Cent. R. Co. v. Int. Com. ^'Cincinnati, IT. & D. R. Co. v. Com., 206 U. S. 441, 51 L. Ed. 1128, Tut. Com. Com., 206 U. S. 142, 51 27 Sup. Ct. 700. L. Ed. 995, 27 Sup. Ct. 648. 280 Force of Orders op Commission [§ 206. circuit court, Ave think they should not be interfered with unless the record establishes that clear and unmistakable error has been committed. ' ' In a recent case decided by the Supreme Court " the court had under consideration an order of the commission in which that body held that a carrier could receive only the actual cost for a service and expense in stopping goods in transit. The Supreme Court held, as a matter of law, that the carrier was entitled to some profit for this service and remanded the cause "with instructions to send the matter back to the commerce commission for further investigation and report." § 20G. The force of the cominissioii's orders fixing rates, rules, and practices to be observed in the future. — (I) The Statute — Under the old law the commission had no power to fix rates or prescribe practices for the future guidance of carriers subject to its jurisdiction. "What orders it could make under that law had to be enforced by suits in the circuit and district courts, and on the hearings of such suits all reports of the commission upon which such suits were brought were made "prima facie evidence of the matters therein stated." Under that law the commis- sion's report was not a "rule of action" but a finding of facts. The Hepburn amendment gave the commission power to make rates, to legislate for the future, it did not take away its ad- ministrative power to make findings of fact in certain cases. As an illustration, its power to award reparation, in which cases the commission's findings of fact are made by the amendment, just as under the old law, prima facie true. In reparation cases, both before and after the amendment, it is expressly provided that the order therefor must be enforced in the courts. When, however, the legislative functions of the commission are exer- cised, the order becomes effective without the aid of the courts. Nothing is said in the statute about such orders being prima facie correct, nor is the commission compelled to file its findings of fact except in cases in which an award is made. See ante §§ 163, 164, 165, and post 538 to 542, inclusive. In considering this question it is w^ell to keep in view the particular language of the statute. Section 16 of the old law provided that when any common carrier refused or neglected to obey any lawful order " Southern Ky. Co. v. St. Louis , Sup. Ct. Hay Co., 214 U. S. 297, 53 L. Ed. § 206.] Fixing Rates, Etc., for the Future. 281 of the commission, suit could be brought thereon, and on such hearing the report of the commission was 'prima facie evidence of the matters therein stated. Section 14 of the present law pro- vides : "Whenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the commission, together with its decision, order, or requirement in the premises ; and in case damages are awarded such report shall include the find- ings of fact on which the award is made. ' ' Section 15 provides: ''That the commission is authorized and empowered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in section thirteen of this act, or upon com- plaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, subject to the pro- visions of this act, for the transportation of persons or property as defined in the first section of this act or that any regulations or practices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair, and reasonable to be thereafter fol- lowed ; and to make an order that the carrier shall cease and de- sist from such violation, to the extent to which the commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed. All orders of the commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two year.s, as shall be prescribed in the order of the commission, un- less the same shall be suspended or modified or set aside by the commission." Similar rights are given the commission with reference to through routes and joint rates and the division of joint rates. 282 P\)K(E OF Orders op Commission [§20G. The statute does uot give the courts any power over the legisla- tive acts of the commission, but such power is recognized as existing independent of the grant of express power. At the end of the foregoing quotation these words appear in the statute: "or be suspended or set aside by a court of competent jurisdic- tion." In section 16 the "venue of suits brought in any of the circuit courts of the United States against the commission to en- join, set aside, annul, or suspend any order or requirement of the commission" is prescribed, and it is provided that suits "may be brought at any time after such order is promulgated." The commission may apply to the United States courts to en- force its orders, and "if, upon such hearing as the court may determine to be necessary, it appears that the order was regu- larly made and duly served, and that the carrier is in disobe- dience of the same, the court shall enforce obedience to such order by a writ of injunction, or other proper process, manda- tory or otherwise, to restrain such carrier, its officers, agents, or representatives, from further disobedience of such order, or to enjoin upon it, or them, obedience to the same." When the commission brings suit to enforce an order, it, under section 16, has only to prove "that the order was regularly made and duly served." It would seem from these statutory provisions that a rule for the future prescribed by the commission is a law unless set aside or suspended by a court of competent jurisdiction. For what reasons then can the courts set aside such rule ? To this question the Supreme Court has not as yet given any answer. It vdll, therefore, be of interest and value to consider its. answer to analogous questions. (II) Decisions of the Supremo Court relating to rates fixed hy state legislatures or legislative commissions — Rates have been for more than thirty years prescribed by state legislatures and by commissions of the different states. The fimctions of these commissions are similar to those of the Interstate Commerce Commission, and laws regulating rates passed by a state furnish analogous principles to those passed by a tribunal to which the state has delegated such power. It is, therefore, valuable to study the cases in which the Supreme Court of the United States has had under consideration rates fixed by the state legislatures or commissions. § 206.] Fixing Rates, Etc., for the Future. 283 In the oft cited case of Mimn v. Illinois '" the Supreme Court was called upon to decide whether or not a statute passed by the legislature of Illinois fixing maximum rates of storage was valid. The discussion is lengthy, with an historical review of the au- thorities holding that public service corporations might be reg- ulated by the legislative authorities in the matter of their charges. The conclusion reached by the majority of the court is stated by J\Ir. Chief Justice Waite, who says: "For our purposes we must assume that, if a state of facts could exist that would justif}' such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the state. But if it could, Ave must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge. "Neither is it a matter of any moment that no precedent can be found for a statute precisely' like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It represents, therefore, a case for the application of a long known and well established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel these OAATiers to grant the public an in- terest in their property, but to declare their obligations, if they use it in this particular manner. "It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. AVhat they did was, from the beginning, subject to the power of the body politic to require them to conform to such regulations as might be es- tablished by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns. * * =' 94 U. S., 4 Otto. 113, 24 L. Ed. 77. 284 Force OF Okders OP Commission [§206. "It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question. * * * ******* "Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, Avhat is reasonable must be ascertained judicially. But this is because the legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the sub- ject, the courts must determine what is reasonable. The con- trolling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact the common law rule, which requires the charge to be reasonable, is itself a regulation as to price. "Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. * * ^ ^ ^ dt> ^ ^ 4& "We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts." This case was decided in 1877, having been kept under advise- ment by the court for more than a year. It is one of a series of cases known as the Granger Cases, decided at the same time. The style of the other Granger Cases may be found in the foot- note.^ In another one of these cases, Peik v. Railway, the court said: "As to the claim that the courts must decide what is reason- able, and not the legislature. This is not new to this case. It has been fully considered in ]\Iunn v. People of Illinois. Where property has been clothed with a public interest, the legislature may fix a limit to that which shall in law be reasonable for its use. This limit binds the court as well as the people. If it has ^ Chicago, B. & Q. E. Co. v. Iowa ley, 94 U. S. 179 ; 24 L. Ed. 99 ; (v. Cutts), 94 U. S. 155, 24 L. Ed. Winona & St. Paul E. Co. v. Blake, 94; Peik v. Chicago & N. "W. R. 94 U. S. 180, 24 L. Ed. 99; Stone Co., 94 U. S. 164, 24 L. Ed. 97; v. Wisconsin, 94 U. S. 181, 24 L. Chicago, M. & St. P. E. Co. v. Ack- Ed. 102. § 206.] Fixing Kates, Etc., for the Future. 285 been improperly fixed, the legislature, not the courts, must be appealed to for the change." In the Railroad Commission Cases,"' decided in 1886, the Granger Cases were cited and followed, Mr. Justice Harlan and Mr. Justice Field dissenting. In the course of the opinion, written by the same chief justice who wrote the opinion in Munn V. Illinois, the right to regulate was said not to be unlimited. He said : "From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regu- lating fares and freights, the state can not require a railroad cor- poration to carry persons or property without reward; neither can it do that which in laAv amounts to a taking of private prop- erty for public use without just compensation, or without due process of law." In Dow V. Beidelman,"" decided in 1888, the Supreme Court, Mr. Justice Gray delivering the opinion, quoted and approved the Granger Cases, wdth the explanation of these opinions con- tained in the quotation, supra, from the opinion of Mr. Chief Justice TVaite in the Railroad Commission Cases. The Supreme Court in the Minnesota Case'" (1890) held that the particular rates there prescribed had not been legally established, because the state commission had fixed them without a hearing as to their reasonableness. This holding determined the case, and the quotation from the Railroad Commission Cases was again cited. Mr. Justice Bradley, Mr. Justice Gray and Mr. Justice Lamar dissented. ]\Ir. Justice Bradley said : "1 think it is perfectly clear, and well settled by the decisions of this court, that the Legislatue might have fixed the rates in question. If it had done so, it would have done it through the aid of committees appointed to investigate the subject, to acquire » Stone V. Farmers' Loan & ^125 IT. S. 680, 31 L. Ed. 841, Trust Co., 116 U. S. .307, 29 L. Eel. 8 Snp. Ct. 1028. 636, 6 Sup. Ct. 334, 1191; Stone =" Chicago, M. & St. Paul R. Co. V. 111. Cent. R. Co., 116 U. S. 347, v. Minnesota, 134 U. S. 418, 33 L. 29 L. Ed. 650, 6 Sup. Ct. 348, 1191 ; Ed. 970, 10 Sup. Ct. 462. Stone V. New Orleans & N. E. R. Co., 116 U. S. 352, 29 L. Ed. 651, 6 Sup. Ct. 349, 391. 286 Force OF Ordehs OF Commission [§206. infoniintion, to cite parties, to ^et all the facts before them, and finally to decide and report. No one could have said that this was not due process of law. And if the legislature itself could do this, acting by its committees, and proceeding according to the usual forms adopted by such bodies, I can see no good reason why it might not delegate the dut.v to a board of commissioners, charged as the board in this case was, to regulate and fix the charges, so as to be equal and reasonable." In the Minnesota case the court did not have under consid- eration the effect of a rate legally passed, but the question then determined was the process to be followed by a state commis- sion in fixing rates. In the majority opinion this expression is found: "The question of the reasonableness of a rate of charge for transportation by a railroad company, involving, as it does, the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial in- vestigation, requiring due process of law for its determination." This expression must be construed as applying to the particular facts there discussed and does not necessarily mean that the opinion in the Granger and the Railroad Commission Cases was abandoned. In 1888 Judge Brewer, now Mr. Justice Brewer, construed the cases in the Supreme Court as establishing this rule : '' "Counsel for complainant urges that the lowest rates the legislature may establish must be such as will secure to the o^\•ners of the railroad property a profit on their investment at least equal to the lowest current rate of interest, say 3 per cent. Decisions of the Supreme Court seem to forbid such a limit to the power of the legislature in respect to that which they ap- parently recognize as a right of the owners of the railroad prop- erty to some reward; and the right of judicial interference exists only when the schedule of rates established will fail to secure to the owTiers of the property some compensation or income from their investment. As to the amount of such compensation, if some compensation or reward is in fact secured, the legislature is the sole judge." In the Texas Commission Case,^' (1894), the facts found ^'^ Chicago & N. "W. H. Co. v. Dey ^"Reagan v. Farmers' Loan & et al., 35 Fed. 866, 2 I. C. C. E. Trust Co., 154 U. S. 362, 38 L. Ed. 325, 1 L. R. A. 744. 1014, 14 Sup. Ct. 1047. § 206.] Fixing Kates, Etc., for the Future. 287 showed ''that the proposed tariff as enforced will so diminish the earnings (of the carriers) that they will not be able to pay one-half the interest on the bonded debt above the operating ex- penses." On this state of facts Mr. Justice Brew^er said: "There can be no doubt of their (the courts) power and duty to inquire whether a body of rates prescribed by a legislature or a com- mission is imjust and imreasonable, and such as to work a prac- tical destruction to rights of property, and if found so to be, to restrain its operation." In the Kentucky Turnpike Case,'' (1896), Mr. Justice Har- lan, for the court, said : "It is proper to say that if the answer had not alleged, in substance that the tolls prescribed by the act of 1890 were wholly inadequate for keeping the road in proper repair and for earning dividends, we could not say that the act was unconsti- tutional merely because the company (as was alleged, and as the demurrer admitted) could not earn more than four per cent, on its capital stock." In Symth v. Ames,'* (1898), the rule above quoted is ap- proved. The authorities up to that time, are fully discussed and the court announced the propositions then established as the law as follows: "In view of the adjudications these principles must be re- garded as settled. "1. A railroad corporation is a person wdthin the meaning of the 14th amendment declaring that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. "2. A state enactment, or regulations made under the author- ity of a state enactment, establishing rates for the transporta- tion of persons or property by railroad that wnll not admit of the carrier earning such compensation as under all the circum- stances is just to it and to the public, would deprive such car- rier of its property without due process of law, and deny to it the equal protection of the laws, and would therefore be re- I)ngnant to the 14th Amendment of the Constitution of the I'nited States. *» Covington & L. Turnpike R. Co. ■"'' Smyth v. Ames, 169 U. S. 466, V. Santlford, 164 U. S. 596, 41 L. 42 L. Ed. 819, 18 Sup. Ct. 418. Ed. 561, 17 Sup. Ct. 198. 288 Force op Orders op Commission [§ 206. "3. While rates for the transportation of persons and prop- erty within the limits- of a state are primarily for its determina- tion, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the constitution secures, and therefore without due process of law, can not be so conclusively determined by the legislature of the state, or by regulations adopted under its authority, that the matter may not become the subject of judicial inquiry." The rule thus announced is but an amplification of the prin- ciples announced by Mr. Chief Justice Waite in the Railroad Commission Cases, supra. Up to this time in the history of the Supreme Court the only limit upon the rule announced in the Granger Cases was that expressed by Mr. Chief Justice Waite in the Eailroad Commis- sion Cases, which limit was more fully stated, though not en- larged as to the principle, in Smyth v. Ames. In the Cotting Case ^' Mr. Justice Brewer discusses the ante- cedent cases and says : "As to parties engaged in performing a public service, while the power to regulate has been sustained, negatively the court has held that the legislature may not prescribe rates which if enforced would amount to a confiscation of property. But it has not held affirmatively that the legislature may enforce rates which stop only this side of confiscation, and leave the property in the hands and under the care of the owners without any re- muneration for its use. It has declared that the present value of the property is the basis by Avhich the test of reasonableness is to be determined, although the actual cost is to be considered, and that the value of the services rendered to each individual is also to be considered. It has also ruled that the determination of the legislature is to be presumed to be just, and must be upheld unless it clearly appears to result in enforcing unreasonable and unjust rates." He then distinguished between those "eases in which a pub- lic service is distinctly intended and rendered" and those "in which, without any intent of public service, the owners have placed their property in such a position that the public has an interest in its use." As to the first class of cases, those en- Cotting V. Godard, 183 U. S. 79, 46 L. Ed. 92, 22 Sup. Ct. 30. § 206.] Fixing Rates, Etc., for the Future. 289 gaged in purely public service, ^Ir. Justice Brewer suggests, but does not decide, a rule as follows : "In the one it may be said that he voluntarily accepts all the conditions of public service which attach to like service per- formed by the state itself. In the other, that he submits to only those necessary interferences and regulations which the public interests require. In the one he expresses his willingness to do the work of the state, aware that the state in the discharge of its public duties is not guided solely by a question of profit. It may rightfully determine that the particular service is of such im- portance to the public that it may be conducted at a pecuniary loss, having in view a larger general interest. At any rate, it does not perform its services with the single idea of profit. Its thought is the general public welfare. If in such a case an in- dividual is willing to undertake the work of the state, may it not be urged that he in a measure subjects himself to the same rules of action, and that if the body which expresses the judgment of the state believes that the particular services should be rendered without profit he is not at liberty to complain ? While we have said again and again that one volunteering to do such services cannot be compelled to expose his property to confiscation, that he cannot be compelled to submit its use to such rates as do not pay the expenses of the work, and therefore create a constantly increasing debt which ultimately works its appropriation, still is there not force in the suggestion that as the state may do the work without profit, if he voluntarily undertakes to act for the state he must submit to a like determination as to the paramount interests of the public? "Again, wherever a purely public use is contemplated, the state may and generally does bestow upon the party intending such use some of its governmental powers. It grants the right of eminent domain, by which property can be taken, and taken, not at the price fixed by the owner, but at the market value. It thus enables him to exercise the powers of the state, and, exer- cising those powers and doing the work of the state, is it wholly unfair to rule that he must submit to the same conditions which the state may place upon its own exercise of the same powers and the doing of the same work? It is unnecessary in this case 1o determine this question." The decisifm refers only to the second class, those who inci- dentally and not with an original intention so to do have placed 290 Force op Orders of Commission [§ 206. their property in sncli a position that the public lias an in- terest in its use. Of this class it is said : ''In reference to this latter class of cases, which is alone the subject of present inquiry, it must be noticed that the individual is not doing the work of the state. He is not using his property in the discharge of a purely public service. He acquires from the state none of its governmental powers. His business in all matters of purchase and sale is subject to the ordinary conditions of the market and the freedom of contract. He can force no one to sell to him, he cannot prescribe the price which he shall pay. He must deal in the market as others deal, buying only when he can buy and at the price at which the owner is willing to sell, and selling only when he can find a purchaser and at the price Avhich the latter is willing to pay. If under such circumstances he is bound by all the conditions of ordinary mercantile trans- actions he may justly claim some of the privileges which attach to those engaged in such transactions. And while by the deci- sions heretofore referred to he cannot claim immunity from all state regulation he may rightfully say that such regulation shall not operate to deprive him of the ordinary privileges of others engaged in mercantile business." This decision was rendered in 1901 and can not be construed as overruling or even limiting Munn v. Illinois. After quoting from that ease Mr. Justice Brewer says: ''While there was a division of opinion in the court, yet the doctrine thus stated re- ceived the assent of a majority of its members, and has been reaffirmed since, although accompanied by a constant dissent." The cases referred to in this opinion are shown in a note hereto." »»Budd V. New York, 14.3 U. S. State, 68 Ala. 58. 44 Am. Eep. 128; 517, 36 L. Ed. 247, 4 I. C. E. 45, 12 Baker v. State, 54 Wis. 368, 12 N. Sup. Ct. 468; Brass v. North Da- W. 12; Nash v. Page, 80 Ky. 539, kota ex rel. Stoeser, 153 U. S. 391, 44 Am. Rep. 490; Girard Point 38 L. Ed. 757, 4 I. C. R. 670, 14 Storage Co. v. Southwark Foundry Sup. Ct. 857. See also the follow- Co., 105 Pa. 248; Sawyer v. Davis, ing cases in state courts: People 136 Mass. 239, 49 Am. Rep. 27; V. Budd, 117 N. Y. 1, 5 L. R. A. Brechbill v. Randall, 102 Ind. 528, 5.59, 22 N. E. 670; Lake Shore & 52 Am. Rep. 695, 1 N. E. 362; M. S. R. Co. V. Cincinnati, S. & Delaware, L. & W. R. Co. v. Central C. R. Co.. 30 Ohio St. 604; State Stock- Yard & Transit Co., 45 N. J. ex rel. Attorney General v. Colum- Eq. 50, 6 L. R. A. 855, 17 Atl. 146. bus Gaslight & Coke Co., 34 Ohio Spring Valley Waterworks v. St. 572, 32 Am. Bep, 390; Davis v. Scbottler, 110 U. S. 347, 28 L. Ed. §206.] Fixing Rates, Etc.^ for the Future. 291 In Atlantic C. L. R. Co. v. North Carolina Corp. Com.,'' Mr. Justice White in a note cites the Granger Cases, except the case of ]\Iunn v. Illinois, as supporting this rule : ' ' The elemen- tary proposition that railroads, from the public nature of the business by them carried on and the interest which the public have in their operation, are subject, as to their state business, to state regulation, which may be exerted either directly by the legislative authority, or by administrative bodies endowed with power to that end, is not and could not be successfully ques- tioned, in view of the long line of authorities sustaining that doctrine. ' ' The Railroad Commission Cases and others since then are cited as establishing this rule: ''As the public power to reg- ulate railways and the private right of owTiership of such prop- erty coexist and do not the one destroy the other, it has been settled that the right of o^Miership of railway property, like other property rights, finds protection in constitutional guar- anties, and, therefore, wherever the power of regulation is ex- erted in such an arbitrary and unreasonable way as to cause it to be in effect not a regulation, but an infringement upon the right of ownership, such an exertion of poAver is void because repugnant to the due process and equal protection clauses of the 14th amendment." The decision announced sustained a ruling of the North Caro- lina Corporation Commission requiring the railroad to put on 173, 4 Sup. Ct. 48; Eailroad Com- C. E. 560, 14 Sup. Ct. 1047; St. mission Cases, 116 U. S. 307, sub. Louis & S. F. E. Co. v. Gill, 156 nom. Stone v. Farmers' Loan & U. S. 649, 39 L. Ed. 567, 15 Sup. Trust Co., 29 L. Ed. 636, 6 Sup. Ct. Ct. 484; Covington & L. Turnpike 334, 388, 1191; Wabash, St. L. & Eoad Co. v. Sandford, 164 U. S. P. E. Co. V. Illinois, 118 U. S. 557, 578, 41 L. Ed. 560, 17 Sup. Ct. 198; 30 L. Ed. 244, 1 I. C: E. 31, 7 Sup. Smyth v. Ames, 169 U. S. 466, 42 Ct. 4; Dow V. Beidelman, 125 U. S. L. Ed. 819, '18 Sup. Ct. 418; San 680, 31 L. Ed. 841, 2 L C. E. 56, Diego Land & Town Co. v. Na- 8 Sup. Ct. 1028 ; Chicago, M. & St. tional City, 174 U. S. 739, 43 L. Ed. P. E. Co. V. Minnesota, 134 U. S. 1154, 19 Sup. Ct. 804; Chicago, M. 418, .33 L. Ed. 970, 3 T. C. E. 209, & St. P. E. Co. v. Tompkins, 176 10 Sup. Ct. 462, 702; Chicago & G. TJ. S. 167, 44 L. Ed. 417, 20 Sup. T. E. Co. V. Wellman, 143 U. S. 339, Ct. 336. 36 L. Ed. 176, 12 Sup. Ct. 400, =''206 U. S. 1, 51 L. Ed. 933, 27 Eoagfin V. Farmers' Loan & T. Co., Sup. Ct. 5So. 154 U. S. 362, 38 L. Ed, 1014, 4 I, 202 Force OF OiJDKiw OF CoMMissroN [§206. a train to make a certain connection, althoufj^li sneh train would be operated at a loss. The decision was made in 1!)07. That the rule announced in IMunn v. Illinois did not mean that under the guise of regulation property could be destroyed is shoM'n by the interpretation of that rule given by its author ill his opinion in Stone v. Farmers' Loan & Trust Co., supra. AVhat was meant by destroying property or by taking private property for public use without just compensation was not de- fined. Subsequent cases have illustrated the meaning of those terms, and in doing so it can not be said that the principle an- nounced in ]\Iunn v. Illinois has been abandoned. "Just com- pensation" means more than the cost of service, though where it is required by the public interest, a public carrier undertaking the state's business of transportation may be required to trans- port at cost, or, in particular instances, at less than cost.^' Com- pensation then as said in Smyth v. Ames must be just to the carrier and to the public. Who then must determine the jus- tice of a particular rate. To prescribe a rate for the future is unquestionably a legislative act, whether a particular rate has been prescribed, as in the IMinnesota Case, supra, in such a way as to deny "due process of law," or whether a rate takes prop- erty for public use "without just compensation" are questions that must ultimately be determined by the courts. Nor are the courts exercising legislative powers in so doing. The legislative branch of the government must obey the constitution, and it has long been established by the Supreme Court of the United States that when it is called upon to determine whether or not an act of the legislative branch shall be enforced, it can and must decide whether the passage of such act was authorized by the fundamental law of the Union. What is just compensation is a flexible term, equally honest and equally competent men might materially disagree on this subject. Should the net in- come on the investment be 2, 3. 4, 5, 6. or 7 per cent? If the legislature, or a board duly created and acting in a perfectly legal way. fixes a particular amount as the maximum income that shall be earned by a public carrier, shall the courts annul =« Cnvinjjton & L. Turnpike E. Co. 18 Sup. Ct. 418 ; Atlantic Coast L. Y. Sandford. 164 TJ. S. 596, 41 L. Ed. R. Co. v. North Carolina Corp. Com., .561, 17 Slip. Ct. 198; Smvth v. 206 U. S. 1, 51 L. Ed. 9-33, 27 Sup. Ames, 169 U. S. 466, 42 L. Ed. 819, Ct. 585. § 206.] Fixing RxVtes, Etc., for the Future. 293 such action if in the opinion of the particular judge or judges trying the case, the amount fixed is not just compensation ? That the courts in a clear case where there can be little or no doubt that the compensation is inadequate, must act under their ob- ligation to support and enforce the Constitution of the United States, and in such cases declare the rate prescribed illegal will not, as has sometimes been intimated, make the Supreme Court of the United States the supreme legislative tribunal in this country. It must be a clear case to justify action by the courts, but as said by Mr. Justice IMoody -J" ' ' The courts, in clear cases, ought not to hesitate to arrest the operation of a confiscatory law, but they ought to refrain from interfering in cases of any other kind. Regulation of public service corporations, which perform their duties under condi- tions of necessary monopoly will occur with greater and greater frequenc}^ as time goes on. It is a delicate and dangerous fimc- tion, and ought to be exercised with a keen sense of justice on the part of the regulating body, met by a frank disclosure on the part of the company to be regulated. ' ' AYhat percentage on the amount invested in the public use the investors are entitled to receive must, of course, depend upon many considerations. Some of which are stated in the Knox- ville Water Case and the New York Gas Case." In the Knox- ville Case, where the proof indicated clearly that the earnings, after deducting two per cent, for depreciation, Avould net four per cent., the court held that confiscation had not been proved. In the Gas Case Mr. Justice Peekham, speaking for the court, said: ''Taking all facts into consideration, we concur with the court below on this question, and think complainant is entitled to six per cent, on the fair value of its property devoted to the public use." Neither of these cases announce a general rule, and it is obvious that what would be reasonable in one ease might be unjust in another. A railroad which must from its very nature be more or less of a monopoly would not be entitled to as large a return as a more hazardous business. All these questions are primarily questions of policy for the legislature, ^Knoxville v. Knoxville Watei C.'o., 212 U. S. 1, 53 L. Ed. , 29 Co., 212 U. S. 1, 18, 53 L. Ed. , Sup. Ct. 148; Wilcox v. Consoli- 29 Sup Ct. 148. diitod Gas Co., 212 U. S. 19, 53 *" Knoxville v. Knoxville Watei L. Ed. , 29 Suj). Ct. 392. 294: Force of Orders of Commission [§ 20G. and it is only when the rate prescribed viohites the constitutional requirement that courts may act. (Ill) Decisions under the Hephiirn Amendment. — In the Stickney Case ^' a preliminary application was brougitimate functions in fixing rates, rules and practices, the order of the commission will be held valid where within its power unless clearly illegal in the con- stitutional sense. It is difficult to see how it can, in ordinary cases, be deter- mined whether or not a particular rate on a particular com- 302 Force of Orders of Commission f§ 206. modity yields a just oonipcnsation. In chapter two infra it is shown that the cost of moving one commodity can not be de- termined. It "wonld, therefore, seem that when the commission, after a full hearing, and aided by the long experience and spe- cial training of its members, fixes a rate on one or a few com- modities that represent in comparison a very small part of the traffic of the carrier, such rate would be binding on all courts, because no one could prove it did not yield a just compensation. This statement has reference to such orders as the commission will issue. Of course, a rate on even one commodity might be so low as to be clearly illegal. These views are expressed by Mr. Justice Brewer, in the Florida Phosphate Rate Case," as follows: ' ' The order of the commission was not operative upon all local rates, but only fixed the rate on a single article; to wit, phos- phate. There is no evidence of the amount of phosphates car- ried locally; neither is it shoT\Ti how much a change in the rate of carrying them wnll affect the income, nor how much the rate fixed by the railroads for carrying phosphate has been changed by the order of the commission. There is testimony tending to show the gross income from all local freights and the value of the railroad property, and also certain difficulties in the way of transporting phosphates, owing to the lack of facilities at the terminals. But there is nothing from which we can determine the cost of such transportation. We are aware of the difficulty which attends proof of the cost of transporting a single article, and, in order to determine the reasonableness of a rate pre- scribed, it may sometimes be necessary to accept as a basis the average rate of all transportation per ton per mile. "We shall not attempt to indicate to what extent or in what cases the in- quiry must be special and limited. It is enough for the present to hold that there is in the record nothing from which a reason- able deduction can be made as to the cost of transportation, the amount of phosphates transported, or the effect which the rate established by the commission will have upon the income. Under these circumstances it is impossible to hold that there was error .in the conclusions reached by the Supreme Court of the State of Florida, and its judgment is affirmed." « Atlantic C. L. Tf. Co. v. Florida. L. Ev. v. Florida, 20.3 TJ. S. 261, 203 TT. S. 256. 51 L. Ed. 174, 27 51 L. Ed. 175, 27 Sup. Ct. 109. Sup, Ct. 108, See also Seaboard A. § 206.] .Fixing Rates, Etc., for the Future. 303 Another reason why great care should be observed in enjoin- ing an order fixing a rate is that the shipper can not be pro- tected by a bond, should the lower rate be finally held valid. This is clearly and unanswerably sho^^•n by Circuit Judge Shelby in the Alabama Rate Case/" where he says : "It is argued that the injunction should be issued because the rights of the defendants and all interested are secured by bonds. It is true that the courts have held that the facts that the de- fendants' rights may be secured by bond is sometimes a sound reason, in cases where the final result is doubtful, for exercising judicial discretion in favor of granting the preliminary injunc- tion. But that rule is not always controlling, and clearly it should not be applied in cases where the bond does not afford adequate protection. Here the bonds given are intended to se- cure innumerable passengers and shippers or consignees. It is not at all probable that the claims of the tenth of them, on breach of the bonds, would ever be presented, or, if presented, would be paid, and to enforce payment in the courts, unless those injured combined in their efforts, would cost more than the claim is Avorth. Those familiar with the Tift Case know that the bond proved ineffectual as complete indemnity in that case, although the parties sought to be protected were large shippers of lumber. Tift et al. v. Southern Railway Company et al. (C. C.) 123 Fed. 789; Id., 10 Inters. Com. R. 548; Id. (C. C.) 138 Fed. 753; Southern Railway Company et al. v. Tift et al. (C. C. A.) 148 Fed. 1021; Id. 206 U. S. 428, 27 Sup. Ct. 709; 51 L. Ed. 1124; Tift et al. v. Southern Railway Company et al. (C. C.) 159 Fed. 555. "Where the injunction is granted, the bonds should of course, be required, but the -court can not safely exercise its discretion upon the theory that the bond in a case like this gives complete indemnity. ' ' The rule now frequently adopted of allowing a rate to be tested is also approved by Circuit Judge Shelby. After discuss- ing the Knoxville "Water Case, supra, and saj'ing that the Su- preme Court had in that case stressed the fact that there had been no actual operation under the ordinance, he said : "In Central of Georgia Railway Company v. IMcLendon et al. (C. C.) 157 Fed. 961, 978, after an order was made at cham- *« Railroarl Com mission of Ala- Fed, 22o, 232, 233. ' bama v, Central of Ga. Ry. Co., 170 :'()4 Force OK OiiOEHs OF (.Nm MISSION . [§206. bers by a circuit judge denying a temporary restraining order ((C. C.) 155 Fed. 975), the case came on for hearing on a mo- tion to grant a temporary injimcticm. Judge Newmnn, who heard the motion, declined to grant the temporary injunction, holding that the rate claimed to be confiseatory should be tried to ascertain its effi'ct upon tlie railway company's business. The practice pursued by Judge Newman in that case, w'e think, is to be commended." Circuit Judge Woods, in 1881, first applied the test to a rate. What he there said applies with great force to a rate fixed by an administrative commission. lie said : *' ''The officers of the railroad company declare that the rates fixed by the commission will so reduce its income that it will not suffice to pay the running expenses of the road and the interest on its bonded debt, leaving nothing for dividends to its stock- holders. The railroad commissioners assert that their schedule was framed to produce 8 per cent, income on the value of the road after paying cost of maintenance and running expenses. Which view^ is the correct one, it is impossible to decide from the evidence submitted. There is, however, a conclusive w'ay, and it seems to me it is the only one, by which this controversy can be settled, and that is by experiment. A reduction of rail- road charges is not always followed by a reduction of either gross or net income. It can soon be settled w^hieh is right — the rail- road company's officers or the railroad commission — in their view of the effect of the commission's tariff of rates, by allowing the tariff to go into operation. If it turns out that the views of the railroad company are correct, and that the schedule fixed by the commission is too low to afford a fair return upon the value of the road, the remedy is plain ; for the law makes it the duty of the commissioners 'from time to time, and as often as circumstances may require, to change and revise said sche- dules.' " '"Tilley v. Eailroad Co., 5 Fed. 641, 662, 4 Woods 427. CHAPTER VI. POWER OF THE COURTS OF THE UNITED STATES TO PREVENT AN ILLEGAL ADVANCE IN RATES. § 250. Basic principles supporting the right to enjoin the exaction of an illegal rate. 251. Injunction against an illegal rate prior to the act to regulate com- merce. 252. Injunctions against an illegal rate since the passage of the act to regulate commerce and prior to the Abilene Case. 253. Such injunctions by circuit courts since the Abilene Case. 254. The question in the circuit courts of appeal. 255. Constitutional and statutory provisions affecting the question. 270. Conclusion. 271. Venue of suits to enjoin carriers from making an unreasonable advance. § 250. Basic principles supporting the riglit to enjoin the ex- action of an illegal rate. — Where an illegal rate is charged, reparation must be demanded within two years from the date the cause of action arises. Each individual must show the amount of his damage with sufficient certainty to enable the commission to make its findings of fact upon which an order therefor must be based. While an association may make claims for reparation for its members, a large part, much the larger part perhaps, of the shippers would have to bring separate suits. Where the exaction of the illegal rate continues for more than two years, and it was seen infra that in the Tift Case the illegal rate was collected for four years, in order to avoid limitation each shipper must file more than one claim for reparation. High on Injunctions (4th Ed.), section 12, says: ''It may be laid down as a general rule that whenever the rights of a party ag- grieved can not be protected or enforced in the ordinary course of proceedings at law, except by numerous and expensive suits, a court of equity may properly interpose and afford relief by injunction." The remedy by reparation is clearly inadequ:ite, the commission has so stated, ante § 158, and it is obviously true. A shipper might be ruined in business by being unal)le to ship 305 306 PoNVKi. OF Courts of United S'tates [§ 251. at an illegal rate, yet be unable to recover his damages, at least to the extent of the injury. In the case of U. S. v. Union Pac. R. Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, it was held that an act of Congress which imposed certain duties upon all railroads and telegraph companies to which the United States had granted a subsidy, although giving a special remedy by mandamus, did not deny to the United States the remedy which could be attained by a bill in equity. And the court there announced the general doctrine : "It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the rem- edy in equity." Of the meaning of irreparable injury. High (sec. 22) says: "By irreparable injurj^ it is not meant that the injury is beyond the possibility of repair by money compensation but it must be of such a nature that no fair and reasonable redress may be had in a court of law and that to refuse the injunction would be a denial of justice." § 251. Injunction against an illegal rate prior to the act to reg'ulate commerce. — The Eailway Commissioners of England are given no power to enjoin a threatened unjust or illegal charge by carriers. Halsbury's Laws of England, Vol. 4, p. 70, sec. 115. says: "To make excessive charges for the carriage of goods is not a denial of reasonable facilities within the jurisdiction of the commissioners. If a railway company exacts an excessive charge, the excess can be recovered by action ; and if such charge is only threatened, an injunction can be obtained to restrain it. Hence the ordinary courts should deal with these questions, and the commissioners have no jurisdiction." In a case in a state court in Ohio, where a bill was filed to prevent the charging of a discriminatory rate, the court said: ^ "AYe think the authorities abundantly show that in a case like the one at har the plaintiff can seek relief by injunction, and that is an appropriate mode to determine the rights of the parties here, without first resorting to an action at law. The ^Scofleld V. Lake Shore & M. S. 54 Am. Eep. 846. E. Co., 43 Ohio St. 571, 3 N. E. 907, § 251.] TO Prevent an Illegal Advance. 307 plaintiffs have a manufacturing capacity of 150,000 barrels per year. Shall they be compelled to bring a separate action for each car load? We think that plaintiffs have a clear and un- doubted right to come into a court of equity and have the rights of the parties determined in a single action." In Coe V. Louisville & Nashville R. Co., 3 Fed. 775, decided in 1880, an injunction was granted to prevent discriminatory practices of the defendant. The language of the judge who wrote the opinion applies with equal force to any kind of illegal rate, whether illegal because unreasonably high or illegal be- cause discriminatory. In the course of the opinion the court said: ''But defendant, protesting that the proposed discrimination in favor of the Union Stock Yard Company would, if executed, constitute no wrong of which complainants ought justly to complain, contends: First, that complainants, even supposing the law to be otherwise, have an adequate remedy at law, and therefore can not have any relief from a court of chancery; and. second, that if a chancery court may entertain jurisdiction, no relief in the nature of a mandatory order to compel defend- ant to continue accommodations to the complainants ought to be made until the final hearing. If such is the law it must be so administered. But we do not concur in this interpretation of the adjudications. Those cited in argument are not, we think, applicable to the facts in the case. Complainants could, in the event defendant carries its threat into execution and withholds the accommodations claimed as their right, sue at law and re- cover damages for the wrong to be thus inflicted. But they could not, through anj^ process used by courts of law, compel defendant to speeitically perform its legal duty in the premises. And this imperfect redress could only be obtained through a multiplicity of suits, to be prosecuted at great expense of money and labor: and then, after reaching the end through harassing (h'lays incident to such litigation, complainants' business would bo destroyed, and the Union Stock Yard Company, born of favoritism and fostered by an illegal and unjust discrimination, would be secure in its monopoly. Here an adequate remedy can be administered and a multiplicity of suits avoided." In Soutliern Express Company v. INIemphis & Little Rock R. Co. 8 Fed. 799, 2 IMcCray. 570, decided in 1881, the coui-t held it luid the power to prevent discrimination and to prevent the 308 Power of Courts of United States [§251. charging' of a rate higher than a maximnm which the court liad jurisdiction to fix. It was there stated, italics supplied: "The railroad company is bound to carry for the express company for a reasonable compensation, and must not discrim- inate against it. A court of chancery has power to decree a compliance with this wholesome regulation. This court can not for a moment sanction the proposition that the railroad com- pan.y wvaj, by extortion or unjust discrimination, exclude the express company from the right to conduct its business upon their railroad. I am not prepared now to fix the maximum rates to be charged for the transportation of express matter, but I have no doubt of the power of the court, after investiga- tion, to do so. An order for this purpose should not, as a rule, be made until after a reference to a master, and a report by him after hearing. For the present, the injunction hereinbefore al- lowed will be modified so as to enjoin and restrain the re- spondent from charging the complainant for the transportation of express matter, including closed packages, more than a fair and reasonable rate; such charges in no case to exceed the rate charged upon similar express matter to itself, or to any othei express company, or for similar express matter received from, or delivered to, the Iron IMountain, etc., Eailroad Company Ex- press, or the Pacific Express Company." This cause was affirmed by ]\Ir. Justice IMiller and Judge ^Mc- Crary. Judge Treat dissenting. Southern Express Co. v. St. Louis, I. M. & S. Ey. Co., 10 Fed. 210. 3 McCray. 147 (Express Cases). Mr. Justice IMiller, writing the opinion, sustained the injimction theretofore granted, and held that the carriers were imder a duty to serve express companies and that the court could fix a reasonable rate therefor. This case, \\ath the other cases kno"\ATi as the Express CaiSes,'' was reversed by the Su- preme Court in 1886. The reversal, however, was not because the court below had no jurisdiction to enjoin an unreasonable charge, but because express companies, being themselves common carriers, could not, without legislation, through the courts com- pel other common carriers to give them equal facilities of trans- portation. "While the decision of the Supreme Court may not be construed as expressly approving the doctrine that a court == Memphis & L. E. E. Co. v. 29 L. Ed. 791, 6 Sup. Ct. 542, 628. Southern Express Co., 117 V. S. 1, § 251.] TO Prevent an Illegal Advance. 309 could, by injunction, compel a carrier to transport at a reason- able rate, such opinion by the language used expressly recognized that the rights of a general shipper were different from those of express companies. The court said : "The question is not whether these railroad companies must furnish the general public with reasonable express facilities, but whether they must carry these particular express carriers for the purpose of enabling them to do an express business over the lines. ******* ^* * * * * The stoppage of their facilities was one of the risks they (the express companies) assumed when they accepted their contracts, and made their investments under them. If the general public were complain- ing because the railroad companies refused to carry express matter themselves on their passenger trains, or to allow it to be carried by others, different questions would be presented." The use of the expression 'common carrier" ex vi termini means that such carrier is bound to carry for all; being bound to carry, it must carry upon reasonable terms. The difference between refusing to carry at all and refusing to carry except for an unreasonable price is a difference, if at all, merely in de- gree and not in kind. This idea is clearly and correctly ex- pressed by the New Hampshire court as follows : ^ "A denial of the entire right of service by a refusal to carry differs, if at all, in degree only, and in the amount of damage done, and not in the essential character of the act, from a denial of the right in part by an unreasonable discrimination in terms, facilities or accommodations. "Whether the denial is general by refusing to furnish any transportation whatever, or special, by refusing to carry for one person or his goods; whether it is di- rect, by expressly refusing to carry, or indirect, by imposing such unreasonable terms, facilities, or accommodations as render carriage undesirable ; whether unreasonableness of terms, facil- ities, or accommodations operates as a total or a partial denial of the right; and whether the unreascmableness is in tlie intrinsic individual nature of the terms, facilities, or accommodations, oi> in their discriminating, collective, and comparative character, — the right denied is one and the same common right which would not be a riglit if it could be rightfully denied, and would not Ix' ('oiimioii ill 1Im' legal sense if it could be legally subjected to 'McDudie V. rortland & R. R. Co., 02 N. IT. 430, 13 Am. Rep. 72. 310 Power of Courts op United States [§ 251. unreasonable discrimination and parceled out among them in unreasonable, superior, and inferior grades, at the behest of the servant from whom the service is due." In Menacho v. Ward, 27 Fed. 529, 23 Blatchf. 502, a bill was filed to restrain the carrier from charging complainant a higher rate than was charged others. This case was decided in 1886, and was decided on the question of the reasonableness of the charge, the lower charge to the competitor being regarded as evidence showing the unreasonableness of the charge to com- plainant. On this point the court said : "Can the defendants lawfully require the complainants to pay more for carrying the same kind of merchandise, under like conditions, to the same places, than they charge to others, be- cause the complainants refuse to patronize the defendants ex- clusively, while other shippers do not ? The fact that the carrier charges some less than others for the same service is merely evi- dence for the latter, tending to show that he charges them too much; but, when it appears that the charges are greater than those ordinarily and uniformly made to others for similar ser- vices, the fact is not only competent evidence against the car- rier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge. The estimate placed by a party upon the value of his own services or property is always sufficient, against him, to establish the real value ; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long-continued and extensive course of business dealings, and held it out as a fixed and notor- ious standard for the information of the public." The question involved was stated as follows: "The question is whether the defendants refuse to carry for the complainants on reasonable terms." The court's holding is shown by the con- cluding part of the opinion, where it is said: "Ordinarily the remedy against a carrier is at law for dam- ages for a refusal to cany, or to recover the excess of charges paid to obtain the deliver}^ of goods. The special circumstances in this case indicate that such a remedy would not afford com- plete and adequate redress, 'as practical and efficient to the ends of justice,' as the remedy in equity. AVatson v. Sutherland, 5 Wall. 74, 72 U. S. 74, 18 L. Ed. 580." The case of Watson v. Sutherland, cited in the last quoted paragraph of the opinion of Judge Wallace in Menacho v. §252.] TO Prevent ax Illegal Advance. 311 Ward supra, was a case where injunction was songht to pre- vent the levy of a fieri facias. The principal announced by Mr. Justice Davis is equally applicable to a case seeking to enjoin an illegal advance, the exaction of which might cause loss of trade and destruction of business. Mr. Justice Davis said: ''Loss of trade, destruction of credit, and failure of business prospects, are collateral or consequential damages, which it is claimed would result from the trespass, but for which compen- sation cannot be awarded in a trial at law. "Commercial ruin to Sutherland might, therefore, be the ef- fect of closing his store and selling is goods, and yet the com- mon law fails to reach the mischief. To prevent a consequence like this, a court of equity steps in, arrests the proceedings in limine ; brings the parties before it ; hears their allegations and proofs, and decrees, either that the proceedings shall be unre- strained, or else perpetually enjoined. The absence of a plain and adequate remedy at law affords the only test of equity jur- isdiction, and the application of this principle to a particular case must depend altogether upon the character of the case, as disclosed in the pleadings. In the case we are considering, it is very clear that the remedy in equity could alone furnish re- lief, and that the ends of justice required the injunction to be issued. ' ' § 252. Injunctions against an illegal rate since the passage of the act to regulate commerce and prior to the Abilene Case. — The decision of the Supreme Court in the Abilene Case * has been regarded by some courts as materially affecting the question of whether or not an illegal rate demanded by a common carrier could be enjoined. The effect of this decision will be discussed in the next section. In this section will be given cases prior to and, therefore, unaffected by the Abilene Case. In Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. 472, suit was filed charging and seeking to enjoin unlaw- ful discrimination against the complainant in the transportation of interstate commerce by refusing to deliver at its switch live stock in car-load lots consigned to it from other states for de- livery at its stock yards in the city of Indianapolis, and to re- ceive for shipment live stock in car-load lots to be transported * Texas & Pac. Ry. Co. v. Abilene L. Ed. 553, 27 Sup. Ct. 350. Cotton Oil Co., 204 U. S. 426, 51 312 F*()\vEi^ OF CoruTs of [Tnitrd States [§252. and delivered to eoiisignees in other states than the State of In- diana. The commerce act was considered in the opinion : "The remaining question is whether, under the facts and the law, it is shown that the unlawful discrimination complained of is threatened or exists. It is clear, by force of the express terms of the interstate commerce act, that in respect of interstate com- merce there can be no lawful discrimination to the advantage or disadvantage of any person, place, locality, or kind of traffic. A common carrier of interstate freight can not lawfully deny switch connections and service to one person, place, locality, or kind of traffic which it affords to others similarly situated." The preliminary injunction was granted, the order resting on this principle of law : "The nature of the wrong complained of. the fact that it is of a continuing character, that it is not susceptible of accurate pe- cuniary estimation, and that resort to actions at law would in- volve a multiplicity of suits, none of which would end the liti- gation, all tend to make it manifest that the remedy in a court of law is not as adequate to afford relief as is the remedy in a court of equity. The jurisdiction in equity does not depend upon the fact that there is no remedy at law. It is afforded whenever the remedy at law is not as full, adequate, and com- plete as in a court of equity. The rule that equitable relief will not be granted until the complainant's right or title in respect of the subject-matter has been established in an action at laAV, does not apply where the subject-matter of the litigation is to prevent discrimination in violation of the interstate commerce act." This case was cited by the Supreme Court, assuming, for the purposes of decision, that rights to a legal rate could be "en- forced by a bill in equity." This remark of the Supreme Court is the more significant because the circuit court had held that no jurisdiction existed to grant the relief prayed in the case where such expression was used. In Tift V. Southern Raihvay Co., 123 Fed. 789, an injunction was prayed against an advance in freight rates. About April 15, 1903, an advance of two cents per hundred poimds on lumber from Georgia and other southeastern points to points on and be- » Central Stock Yards Co. v. 568, .570, 48 L. Ed. 565, 569, 24 LouisviUe & N, E. Co., 192 U. S. Sup. Ct. 339. § 252.] TO Prevent an Illegal Advance. 313 yond the Ohio River was scheduled to take effect. Captain H. H. Tift and other citizens of Georgia filed their bill in the United States Circuit Court for the Southern District of Georgia against the carriers joining in the advance from Georgia. Some of the defendant carriers were citizens of Georgia, residents of the southern district thereof, and some were citizens of other states; all were parties to the rates from Georgia to the Ohio River either as initial or connecting carriers. There was no diversity of citizenship. The suit was brought to enjoin this advance, it being alleged that the two cents per hundred pounds was un- reasonable and unjust. Judge Speer granted a temporary writ of injimction, and the rate was not then put in effect. Upon hearing for the injimction, Judge Speer entered this order : "In case the respondents shall enforce the rates complained of, and the complainants shall make proper application to the Interstate Commerce Commission to redress their alleged griev- ances, the court will entertain a renewed application on the record as made and such appropriate additions thereto as may be proposed by either party, enjoining the enforcement of such rates pending the investigation b}^ the commission, unless other- wise dissolved ; and on presentation to the court of the report of the commission such other action will be taken as will be conformable to law and the principles of equity." The carriers, upon the entry of this order, gave the statutory notice and the advance became effective June 22, 1903. Imme- diately the complainants filed their petition with the Interstate Commerce Commission, and, having done so, renewed their ap- plication before Judge Speer for an injimction. In a carefully written opinion, supported by logic and authority. Judge Speer upheld the jurisdiction of the court to grant the injunction, but upon a stipulation in judicio by the defendants that any over- charge collected which should finally be held illegal would be repaid to those paying such overcharge, he withheld the writ pending action by the commission. The conclusions of Judge Speer are sufficiently shown from two paragraphs of his opinion, as follows: "Then it is clear that the court of the United States has juris- diction as such of this question arising under the constitution and laws of the United States. It is equally clear that the court sitting in equity has jurisdiction to grant the specific relief prayed. It has long been the practice of courts of equity to 314 Power of Courts op United States [§252. graut iiijuiietion against extortionate charges and unjust dis- criminations." "It is equallj^ clear that in this case the court has jurisdic- tion, in order to avoid a multiplicity of suits. It would be a reflection upon American jurisprudence if such a multiude of complainants, who have identical claims of right relative to the same subject-matter against a multitude of defendants, all of whom are public corporations, who are alleged to be in a com- bination to inflict a common and simultaneous wrong on each and every complainant, should be driven to the cost and expense of maintaining separate actions at law for each instance of such alleged wrong. With the same show of reason it might be in- sisted that each shipper could be driven to his separate protest against such rates before the Interstate Commerce Commission. IModern jurisprudence would not tolerate methods so fraught vnth ruinous expense, harrassing and destructive delay. It fol- lows from these conditions that complainants' bill is properly before the court, and must be maintained to adjust the rights of the contending parties as they are finally to be ascertained." After action by the commission holding the advance illegal (10 I. C. C. R. 548), the order of the commission was filed in the original case and sustained by Judge Speer, who allowed a super- sedeas to his injunction upon the carriers entering into a spe- cial bond in the sum of $500,000, with good securities, condi- tioned to repay the overcharge collected should the advance be finally determined to be illegal (138 Fed. 753). Judge Speer was affirmed by the court of appeals (148 Fed. 1021) and by the Supreme Court (206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709). Before, however, the case reached the Supreme Court the Abilene Case was decided by that court, and it was contended that, under the Abilene decision, the circuit court had no juris- diction. Of this point the Supreme Court said : "In the case at bar, however, there are assignments of error based on the objections to the jurisdiction of the circuit court. These might present serious questions in view of our decision in Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. Rep. 350, upon a different record than that before us. We are not required to say, however, that be- cause an action at law for damages to recover unreasonable rates which have been exacted in accordance with the schedule of rates as filed, is forbidden by the interstate commerce act. § 252.] TO Prevent an Illegal Advance. 315 a suit in equity is also forbidden to prevent a filing or enforce- ment of a schedule of unreasonable rates or a change to unjust or unreasonable rates. The circuit court granted no relief pre- judicial to appellants on the original bill. It sent the parties to the Interstate Commerce Commission, where, upon sufficient pleadings, identical with those before the court, and upon testi- mony adduced upon the issues made, the decision was adverse to the appellants. This action of the commission, with its findings and conclusions, was presented to the circuit court, and it was upon these, in effect, the decree of the court was rendered. There was no demurrer to that petition, and the testimony taken before the commission was stipulated into the case, and the opinion of the court recites that, 'with equal meritorious pur- pose, counsel for the respective parties agreed that this w^ould stand for and be the hearing for final decree in equity. ' ' ' It was certainly competent for the appellees to proceed in the circuit court under section 16 of the interstate commerce act (24 Stat, at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), and to apply by petition to the circuit court, 'sitting in equity,' for the court to hear and determine the matter 'as a court of equity, ' and issue an injunction ' or other proper process, manda- tory or otherwise,' to enforce the order of the coumiission, "We think that, under the broad powers conferred upon the circuit court by section 16 and the direction there given to the court to proceed with efficiency, but without the formality of equity proceedings, 'but in such manner as to do justice in the prem- ises,' and in view of the stipulation of the parties, recited in the decree of the court, the appellants are precluded from making the objection that the court did not have jurisdiction to entertain the petition and grant the relief prayed for and decreed." After the affirmance by the Supreme Court of the Tift Case, parties other than the original parties were allowed to intervene on their claims for the overcharge (159 Fed. 555). Circuit Judge Taft, in Toledo, A. A. & N. M. Ey. Co. v. Penn- sylvania Company, 54 Fed. 730, 19 L. R. A. 387 (1893), 5 I. C. R. 545, 22 U. S. App. 561, applied the interstate commerce act and enjoined a carrier and its employees from "refusing to receive and deliver interstate freight." In the course of the opinioi) he compared the case to an analogous case, saying: "AVlicrf! it has been sought to enforce tlic common law obliga- tion of a conmion carrier, the preliminary mandatory injunc- 316 Power of Courts op United States [§ 253. tion has frequently issued." For eases cited by Judge Taft on this point see note." § 253. Such injunctions by circuit courts since the Abilene Case. — In the Tift Case, supi-a. the Supreme Court itself ex- plained what was decided in the Abilene Case. The Supreme Court said : ''In support of these contentions appellants rely on Texas & P. E. Co. V. Abilene Cotton Oil Co., supra. In that ease the Abilene Cotton Oil Company sued in one of the courts in Texas to recover the excess of what it alleged to be an unjust and lui- reasonable charge on shipments of car loads of cotton seed. The defense was that the rates were charged according to the sche- dule or rates filed under the interstate commerce act, and that the court had no jurisdiction to grant relief upon the basis that the established rate was unreasonable, when it had not been found to be so by the Interstate Commerce Commission. The defense prevailed in the trial court, but did not prevail in the court of civil appeals, where judgment was rendered in favor of the cotton oil company. ■ The judgment was reversed by this court on the ground that the state courts had no jurisdiction to entertain a suit based on the unreasonableness of a rate as pub- lished in advance of the action of the Interstate Commerce Com- mission adjudging the rate unreasonable. And it was in effect held that reparation after such action for the excess above a reasonable rate must be by a proceeding before the commission, 'because of a wrong endured during the period when the un- reasonable schedule was enforced by the carrier and before its change and the establishment of a new one." It will be seen that the Abilene Case had reference only to a right of action for damages and did not discuss the question of equitable remedies. In discussing the Abilene Case in Another part of the opinion in the Tift Case, IMr. Justice McKenna said : "We are not required to say, however, that because an action at law for damages to recover unreasonable rates which have been exacted in accordance with the schedule of rates as filed, " Coe V. Railroad Co., 3 Fed. 775 ; Eq. 433 ; Denver & N. O. R. Co. v. Chicago & A. Ry. Co. v. New York, Atchison, T. & S. F. Ry. Co., 15 L. E. & W. Ry. Co., 24 Fed. 516; Fed. 650; Scofield v. Railway Co., Wolverhampton & W. Ry. Co. v. 43 Ohio St. 571, 3 N. E. 907. London & N. W. Ry. Co., L. R. 16, § 253.] TO Prevent ax Illegal Advance. 317 is forbidden by the interstate commerce act, a suit in equity is also forbidden to prevent a filing or enforcement of a schedule of unreasonable rates or a change to unjust or unreasonable rates." It will be seen that the Supreme Court uses the words ' ' to pre- vent a filing or enforcement." In Potlatch Lumber Co. v. Spokane Falls & N. Ry. Co., 157 Fed. 588, Judge Whitson refused to enjoin an alleged illegal rate after it had been put in force and while a complaint against its illegality was pending before the Interstate Commerce Com- mission. In Kalispell Lumber Co. v. Great N. Ey. Co., 157 Fed. 845, the rate was being enforced, notwithstanding which Judge Hunt granted an injunction, saying: "Relief by injunction ought not to be given, except where the showing is clear that great injustice would be done by oblig- ing a complainant to submit to mijust rates imtil the Interstate Commerce Commission can act. As I have indicated, however, when it appears that enforcement of the schedule of rates will l^e followed by practical and immediate destruction of the busi- ness of a large number of persons, in that it will prevent their putting their products into markets upon which they have been and are largely dependent, and where it appears that the changed rates are extortionate and unreasonable, relief in equity may be granted merely luitil the Interstate Commerce Commis- sion shall have adjudged the rate to be imreasonable or other- wise. ' ' In Jewett Bros. & Jewett v. Chicago, I\I. & St. P. Ry. Co., 156 Fed. 160, Judge Carland refused an injunction ; he, how- ever, sustained the general jurisdiction of the court to enjoin an advance prior to its becoming effective. The reasoning of Judge Carland is cogent. He says: "The carrier has the imdoubted power to fix a lawful rate for the transportation of interstate freight. It has no power to fix an unlawful rate. The court when it enjoins a proposed unlaw- ful rate does not make any rate. It si in ply restrains the com- mission by the carrier of an unlawful act. The courts have for years enjoined the putting in force of rates proiiiulgattMl by state boards of railroad commissioners on the ground that the rates were confiscatory, yet the carriers at least liave not com- plained in those eases that the courts were exercising the rate- 318 Power of Courts of United States [§ 253. making power. The courts in enjoining a proposed unlawful rate do not, nor do they pretend to, disturb in any way rates already in existence, and in force. It also seems clear that complainant has no plain, speedy, and adequate remedy at law. In these days of fierce business competition a difference of a fraction of a cent in a freight rate may mean to the jobber or wholesaler success or failure in business. The damage which a shipper will suffer from an unjust or discriminatory freight rate is not the mere difference between a reasonable and just rate and an unreasonable and unjust rate. The putting in of an un- just rate or an unjustly discriminatory rate may, in addition to the damage caused by the payment of the rate itself, cause busi- ness ruin. Must the shipper when notice is given that a carrier intends to put in effect an imjust rate or an unjustly discrimina- tory rate which the shipper knows will ruin his business sit still, and let the rate go into effect, and then complain to the In- terstate Commerce Commission, which after three or four years may decide the rate to be reasonable or unreasonable? Daniels V. Chicago, IMilwaukee & St. Paul Ry. et ah, 6 Interstate Com- merce Commission reports, 458 (complaint filed April 28, 1892, decided November 16, 1895). And, if the shipper is successful in his contention, he may then with business ruined go into court to enforce the award of the commission and at the end of three or four years more collect his damages, not those arising from the ruination of his business, but merely the excess paid by him over and above a reasonable rate. There is no plain and ade- quate remedy in such a proceeding. Courts of equity have often in similar cases enjoined the putting in effect of unlawful rates. Menacho v. Ward (C. C.) 27 Fed. 529; 23 Blatchf. 502; South- em Express Co. v. Memphis, etc., Ry. Co. (C. C.) 8 Fed. 799, 2 McCray 570, affirmed in 10 Fed. 210, 3 McCray 147; Coe v. Louisville, etc., Ry. Co. (C. C.) 3 Fed. 775; Tift v. Southern Ry. Co., (C. C.) 123 Fed. 790, and authorities cited. Also the nu- merous cases in which courts of equity have enjoined unlawful rates sought to be enforced by state authorities." The grounds for refusing the injunction were, that the injunc- tion suit was merely ancillary to a complaint before the com- mission, and as the rate had not become effective, the commission had no jurisdiction of the complaint, and, second, that the theory of the bill being analogous to a bill to enjoin waste pending a suit at law, relief could not be granted unless complainant's § 253.] TO Prevent an Illeg.vl Advance. 319 « right to recover at law was clear. The court, from prior deci- sions of the commission, thought that complainant would lose before that body, and, therefore, that the right to recover at law was not clear. The first reason given by Judge Garland is liardly sound, the second is merely a statement of the well- kno^^•n rule that preliminary injiuictions should not be granted when it appears likely that complainant has no right to recover. In the case of JM. C. Kiser v. Central of Ga. Ky. Co., 158 Fed. 193, injunction was sought against an alleged illegal advance in rates. The bill was filed before the advance became effective, and a preliminary injmiction was granted staying the advance. This injunction was later so modified as to allow the carriers to file with the Interstate Commerce Commission schedules show- ing the advance, though the injunction against collecting the advance remained in effect pending a decision by the commis- sion. Judge Newman in his opinion regards the Abilene and the Tift Cases as presenting the authorities controlling on the ques- tion of jurisdiction which was challenged in the case. After discussing these two cases. Judge Newman says : ''Other authority is cited bearing more or less upon the ques- tion of jurisdiction here, but the two decisions just referred to seem to be controlling when it is ascertained what is held by the court, considering the two cases together. From what is said in both cases, the ruling would seem to be that general power over interstate rates to be charged by common carriers is given to the Interstate Commerce Commission, and that for the courts to undertake to determine what are reasonable or un- reasonable rates would interfere and conflict with the exercise of this power by the commission, although instances might arise in which it would be proper for a court of equity to enjoin the enforcement of unreasonable rates or a change to unjust or un- reasonable rates; but that this action of a court of equity will not interfere with the final exercise by the Interstate Commerce Commission of the full powers granted to it by the act of Con- gress of 1887, to determine whether a given rate is an unjust and unreasonable rate, or under the act of June, 1906, 'to de- termine and prescribe what will be a just and reasonable rate or rates, charge or charges, to be thereafter observed * * * * * * * as the maximum to be charged.' This seems to be the clear meaning of these decisions. It appears, therefore, that the court might properly enjoin carriers from establishing, or 320 Power of Courts op ITnited States [§ 253. increasing to, an unreasonable rate, at the same time leaving the matter in such shape as that the Interstate Commerce Commis- sion may ultimately determine whether the contemplated in- crease is just and reasonable." In Macon Grocery Co. v. Atlantic C. L. R. Co., 163 Fed. 738, the facts were similar to those in the Kiser Case, supra. The jurisdiction of the court was challenged, coimsel for defendants relying largely upon the Abilene Case as authority for their con- tention. Judge Speer reviews the authorities, especially the Abilene and Tift Cases. He points out that the same question of jurisdiction was raised at circuit in the latter case. He says : "The Abilene Cotton Oil Case which we have been discussing was decided February 25, 1907. On May 27th of the same year the Supreme Court had under review from this court the case of the Southern Railway Company v. Tift, 206 U. S. 428, 27 Sup. Ct. 709, 51 L. Ed. 1124, otherwise known as the 'Lumber Rate Case.' In the Tift Case, in the circuit court, the identical objection for want of jurisdiction with which the complainants are here confronted was presented in several hearings. There, too, when the bill was filed, the rate had not been enforced. As in the case at bar, it had been merely threatened." He then quotes from the first decision in the Tift Case (123 Fed. 789, supra), and, continuing the discussion of that case and opinion, says: "Numerous other authorities were cited in support of these propositions. It folloAvs that the challenge to the jurisdiction could not have been more definitely made, or more definitely de- cided. We have seen that jurisdiction was maintained. An appeal was then taken to the Supreme Court of the United States. Now, there is nothing about which that great court is more sensitive than an unauthorized exercise of jurisdiction on its own part, or on the part of any of the 'inferior courts' created by Congress. It has often held that it is the duty of such courts sua sponte to raise the question of jurisdiction, even though the parties should fail, to do so. No failure of jurisdic- tion can escape the perspicacity of that august tribimal. Its holding, then, in the Tift Case seems conclusive of this contro- versy. Said Associate Justice ]\IcKenna for the court (Southern Ry. Co. V. Tift, 206 U. S. 437, 27 Sup. Ct. 711, 51 L. Ed. 1124) : " 'In the case at bar * * * * there are assignments of error based on the objections to the jurisdiction of the circuit § 254.] TO Prevent an Illegal Advance. 321 court. These might present serious questions, in view of our decision in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, upon a different record than that before us. We are not required to say, how- ever, that because an action at law for damages to recover lui- reasonable rates which have been exacted in accordance with the schedule of rates as filed is forbidden l)y the interstate commerce act, a suit in equity is also forbidden to prevent a filing or enforcement of a schedule of unreasonable rates, or a change to unjust or unreasonable rates.' "What fairer or more obvious distinction has been indicated by the Supreme Court? In the Abilene Cotton Oil Company Case, in an action at common law, they denied jurisdiction. That was a diiferent record from this before them, but because of that decision they were not required to say that 'a suit in ec[uity is also forbidden to prevent a filing or enforcement of a schedule of imreasonable rates, or a change to unjust or un- reasonable rates.' If the court had been so required, it would have made the requirement effective. The absence of jurisdic- tion and the rec^uirement are one and the same thing. Since the great tribunal was not so required, there is no law to forbid a suit in equity 'to prevent a filing or enforcement of a sche- dule of unreasonable rates, or a change to unjust or imreason- able rates.' " One specialty injured by a violation of the Sherman Anti- Trust Act may maintain a bill to enjoin such injury. Bigelow v. Calumet & Hecla Mining Co., 155 Fed. 869; same case, 167 Fed. 704. Affirmed, same styled case, 167 Fed. 721. C. C. A. § 254. The question in the circuit courts of appeal. — In Northern Pacific Ry. Co. v. Pacific Coast Lumber ^Manufacturers' Asso., 165 Fed. 1, CCA. , the following facts were before the circuit court of appeals for the Ninth Circuit. The carriers engaged in transporting lumber from Washington to the markets of the middle west and east thereof concurrently and concertedly gave notice of a considerable advance in the rate of transportation on that commodity. The Pacific Coast Lumber IMannfacturers' Association, in behalf of the shippers of lumber in the State of Washington, filed a hill in 1lic circuit court to enjoin the advance. The carriers, defendants, were not citizens of the state or the district in which the suit was filed, 322 Power of Courts of United States [§ 254. and they presented the question of jurisdiction over their per- sons and the question of the jurisdiction of the court over the subject-matter. These contentions of the defendants were over- ruled by Judge Tlanford, "who, upon the facts proved, enjoined the collection of the proposed advance, requiring, however, com- plainants to give bond for the protection of the carriers. From this interlocutory order an appeal was taken and the hearing came on before Circuit Judges Gilbert, Ross, and ]\Iorrow. The court of appeals, Judge Ross dissenting, affirmed the lower court. The carriers urged two principal arguments in support of the contention that the injunction should not have been granted. The first of these was, that the principles of the Abi- lene Case required that no action could be taken by a court with reference to a rate in existence or proposed prior to action by the commission ; and, second, that" to enjoin an advance would be to make discriminatory rates. The first argument was dis- posed of by the court quoting from the Tift Case the statement of ]\Ir. Justice McKenna distinguishing between a suit at law for damages and a suit in equity to enjoin the filing or enforce- ment of a schedule of unreasonable rates. After discussing the authorities, the court said : "If such is the effect of the act, we have the anomalous situ- ation of a threatened irreparable injury for which there is no remedy, for the Interstate Commerce Commission has no power to enjoin a proposed unreasonable new schedule of rates. * * ****** rp^ what does the reservation of legal rem- edies in section 22 of the act refer if not to such a remedy as this? The case calls for the exercise of a power which is in- herent in a court of chancery, the power to enjoin a proposed imlawful act. The exercise of that power does not invade the province of the Interstate Commerce Commission. It prohibits the enforcement of an alleged unreasonable rate only until the commission shall have had time and opportimity to adjudge the question of its unreasonableness. To afford such relief is not to fix rates or to change existing rates, or to decide on the reason- ableness of established rates, or in any way to interfere with the functions of the Interstate Commerce Commission, nor does it result in the confusion or derangement of rates so forcibly pointed out as the ground of decision in the Abilene Cotton Oil Case. § 254:.] TO Prevent an Illeg^u. Advance, 323 The second objection to its jurisdiction was answered in this way : ' ' The answer to this is that all persons subject to the payment of the advanced rate may, if they choose, obtain the benefits of the order by complying with its conditions. The injunction makes no discrimination. It suspends the collection of the in- creased rate pending the decision of the question of its lawful- ness, upon security that the carrier shall not suffer ultimate loss." The case of Union Pacific R. Co. v. Oregon and "Washington Lumber Manufacturers' Asso., 165 Fed. 13, C. C. A. , presented the same facts as in the Northern Pacific Case, supra, and was disposed of in the same way. The Kalispell Lumber Co. Case, 157 Fed. 845, supra, was re- versed by the circuit court of appeals of the Ninth Circuit (Great Northern Ry. Co. v. Kalispell Lumber Co., 165 Fed. 25, CCA. ). The only distinction between the Washington and Oregon Cases and the Kalispell Case was that in the first two the injunc- tion was granted prior to the rate becoming effective, while in the latter the rate had become effective when enjoined. In the latter case the court said: "When a schedule of rates is once established in the mode prescribed by the statute, a former rate is superseded and is no longer in existence. There can be no question that to enjoin a rate already established and in operation and to require the carrier to observe a previously established rate no longer in ef- fect is to make a rate. A court can have no more power to say that the carrier shall go back to a superseded rate than it has to fix a wholly new rate. In either case the court establishes a rate. It can make no difference that the newly established rate has been in existence but a short time before the application to a court for injunctive relief. If a court may enjoin the en- forcement of a rate newly established, as in this ease, it may on the same grounds enjoin any established rate, no matter how long it may have been in force, and may compel the carrier to observe either the former rate or a new rate. The result is to divest the Interstate Commerce Commission of its power, 'which body alone,' said the court in the Abilene Cotton Oil Case, 'is vested with power originally to entertain proceedings for the 324 PowKR OK CoiKTs OF Un[ted States [§254. alteration of an ostal)]ishod sdicdulc heeaiise tho rates fixed therein are unreasonable.' " It may be that shippers who, wilhoul ()l)jeetion. allow a rate to become effective might be guilty of such laches as to de- prive them of a right to injunction, but the reasoning of the cir- cuit court of appeals just (pioted seems inconclusive. INIr. Jus- tice JMcKenna spoke of the "filing or enforcement" of a rate in the same connection and apparently subject to the same rule of law; and it is difficult to see that the same equitable prin- ciples do not apply to a constantly recurring injury and con- tinuing violation of a right causing irreparable damages as ap- plies to a like kind of injury when only threatened. The ]\Iacon Grocery Co. Case, supra (163 Fed. 738) was ap- pealed to the circuit court of appeals for the Fifth Circuit. The issues presented on appeal w-ere the same as those presented t(» the circuit court of appeals for the Ninth Circuit in the Pacific Coast Lumber Manufacturers' Case. The decision of the two appellate courts are directly in conflict. In each case one judge dissented. In the ]\Iacon Grocery Co. Case (sub nom. Atlantic C. L. R. Co. V. Macon Grocery Co., 166 Fed. 206, C. C. A. ), Judge McCormick, delivering the opinion, rests the case on the authority of the Abilene Case, his conclusion being : "We conclude that the bill in this case presents for neces- sary consideration the proper construction of the act to regu- late commerce, and, therefore, the jurisdiction of the court does not rest solely upon the diversity of the citizenship of the par- ties. We conclude that the sound construction of the different provisions of the act to regulate commerce as amended and now in force necessarily forbids the exercise of the jurisdiction at- tempted to be invoked by the bill in this case." Judge Pardee concurring says : "First. I doubt if the lower court had jurisdiction ratione personae. "Second. The complainants have other full and adequate remedies through the Interstate Commerce Commission. "Third. The effect of an injunction in this case would be to throw^ the interstate rates of the whole southeastern territory into disorder and confusion, resulting in greater evils than those suggested and alleged in the present bill. "Fourth. The initial regulation of interstate rates is placed by law in the hands of the Interstate Commerce Commission, and § 255.] TO Prevent an Illegal Advance. 325 the courts should not interfere to restrain, compel or regulate, except when invoked after final action by the commission and in accordance with the rules prescribed in the laws regulating interstate commerce. ' ' In the dissenting opinion of Judge Shelby, he relies upon the provision of section 22 of the act reserving existing common law and statutorj^ remedies, and concludes a short but forcible opin- ion by saying: "The clause of the act reserving remedies should not be dis- regarded except as to remedies that would defeat the operation and enforcement of the act — remedies that are absolutely incon- sistent with the act. The remedy sought in this case, and the procedure thus far, as the records show, are in harmony with the purposes of the act. The cases that have been decided since the decision of the Abilene Case show that the rule there an- nounced does not abrogate the clause quoted from section 22 of the act, nor destroy the preventive jurisdiction of courts of equity; and that such jurisdiction may be exercised without in any way invading the domain of the Interstate Commerce Com- mission." This case is now pending on appeal to the Supreme Court. § 255. Constitutional and statutory provisions affecting the question. — Section 1 of Article III of the Constitution provides : "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." Section 2 of the same article provides: "The judicial power shall extend to all eases, in law or equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under this authority." The Fifth Amendment to the Consitution provides: "No person shall * * * be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compen- sation." Section 22 of the act to regulate commerce provides: "Xoth- iiig in this act contained sluili in any way abridge or alter the remedies now existing at common law or by statute, but Ihc pi'o- visions of this act are in addition to such remedic^s. " The right to ti"id<' Mud conscfiuciil ly lln' riulil lo luive prop- erty tr;ins|)Oi'tcd at a reasonable rale is a r'iglit ol' pro|)('rly. 326 Power of Courts of United States [§ 255. In United States v. :\Iieliigan Central E. Co., 322 Fed. 544, 545, Judge Grosseup says : "I have no doubt whatever, respeeting the first of these ques- tions. The interstate commerce acts confers upon each citizen engaged in productive industry, whether manufacturing, com- mercial or agricultural, Avithin the districts traversed by these roads, the substantive right of having his product transported by the common carriers of the country at rates equal to the rates obtained by his competitor. This right of equal treatment at the hands of the common carriers is as much a right of property, and affects as directly his interest in property as any other right of property that he may have under law, statutory or common. To enforce such right, there must be somewhere in our system of jurisprudence, the remedy found essential. If an action at law for damages is inadequate, a remedy in equity must exist. The jurisprudence of the country does not leave him remedi- less." Under the act to regulate commerce, all charges made for any service rendered or to be rendered in the transportation of property, or in connection therewith, shall be just and reason- able ; and every unjust and unreasonable charge for such service, or any part thereof, is prohibited and declared to be unlawful. This is but a legislative statement of the common law on the subject, and states a ''rule which is as old as the existence of common carriers, to wit, that rates must be reasonable. " ^ At common law and luider the interstate commerce act, the carriers fix the rates and the shippers must pay the price fixed or resort to the courts. The shipper at common law could tender freight, and a reasonable charge for its transportation, and by equitable remedies compel the common carrier to accept and transport it,° or he could pay the charges demanded imder protest, and sue to recover the illegal excess. He who felt aggrieved by a charge could always invoke the aid of the courts to protect himself against it.* Further declaratory of the common law, it is pro- vided in the interstate commerce act that undue and unreason- able preference or advantage to any particular person, com- pany, firm, corporation, or locality, or any particular descrip- ^Int. Com. Com. v. Cincinnati, N. » Tif t v. Southern Ey. Co., 123 O. & T. P. Ey. Co., 167 U. S. 479, Fed. 789 and cases cited. 42 L. Ed. 243, 17 Sup. Ct. 896. * Chicago etc. Ey. Co. v. Osborne, 52 Fed. 912, 914. § 270.] TO Pre\^nt an Illegal Advance. 327 tion of traffic is prohibited. Rates are intended to be just and reasonable, and equality ''under substantially similar circum- stances and conditions" is provided for, pooling is prohibited and tariffs required to be published. Under sections, eight, nine, thirteen and sixteen of the inter- state commerce act, remedy by suit for damages is given ship- pers where there has been a violation of the provisions of the act. Section twenty of the act provides : ' ' That the circuit and dis- trict courts of the United States shall have jurisdiction, upon the application of the Attorney-General of the United States, at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of said act to regulate commerce, or of any act supplementary thereto or amendatory thereof, by any common carrier, to issue a writ or writs of man- damus commanding such common carrier to comply with the provisions of said acts, or any of them." Under the Hepburn amendment, the commission may, after hearing, fix a rate for the future. "When at common law a carrier refused to accept goods for transportation except upon an unreasonable charge, or when such charge was made for transporting after receiving the goods the shipper had a right of action for damages. The right was by the interstate commerce act, section twenty-two, in express terms reserved. § 270. Conclusion. — In view of the language used in the Tift Case, it can not be said that the Supreme Court has defi- nitely determined the question as to whether or not the United States circuit courts may, without previous action by the com- mission, enjoin an illegal rate already in existence, or enjoin tlie putting in effect a proposed rate claimed to be illegal. The Supreme Court does hold that the Abilene Case is not authority against sucli jurisdiction, and it would seem that a stipulation of counsel could not confer jurisdiction on a court unless the court at least had jurisdiction over the subject-matter. The question must be determined by the Supreme Court and no more important question is now pending before that great tribunal. If a shipper may not enjoin an inijust advance pending a deteniiiiialion l)y the conniiission of its reasonableness, liis rem- edy is clear]}' inadef|uate for tlu; injury ho may suffer from the exaction of the unjust rate. Congress has ])een urged to give the; commission power to sus- 328 Power of Courts of United States [§271. pend an advance. The Senate Coimnittee on Interstate Com- merce, Senate bill 423, report No. 933, Februarj^ 8, 190!), re- ported against giving such power to the commission. One of the arguments used in that report is as follows: "It is claimed that the indefinite suspension of the rate until final hearing is to deprive the carrier, if the rate advanced is reasonable, of his right of property during the period of suspen- sion, without having given it any opportunity to be heard prior to the act of suspension. Due process of law must precede, and should not follow, the suspension. To set aside the carriers' act in fixing the rate pending the investigation required by due process of law is to deprive the carrier, pro tanto, of its prop- erty right to charge a reasonable rate. The fact that the statute requires an investigation after the suspension of the. rate does not avoid the constitutional inhibition, as that provision can only be satisfied when the investigation precedes any disturbance of property rights. The carrier is entitled to the investigation before it is restrained in the exercise of its property rights; the theory of the amendment suggested is that the shipper is entitled to an investigation before the carrier can exercise its property rights." This argument would not apply to injimctions granted by courts because when such injunction is granted "the carrier re- ceives an investigation before it is restrained in the exercise of its property rights." The shipper also has "an investigation before the carrier can exercise" the power to deprive him of the right to trade in such a way that the remedy is inadequate and the damages irreparable. § 271. Venue of suits to enjoin carriers from making an un- reasonable advance. — When suit is brought to enjoin carriers from enforcing an luijust or illegal rate, to make eflPective an order it is usually necessarj^ to have parties defendant who are citizens of states other than that where suit is pending. Under such circumstances it becomes important to determine the proper venue. ]\Iust suit be brought only in the district whereof the defendant is an inhabitant?"' It would seem not. The ju- diciary acts do not restrict the jurisdiction of circuit courts, nor their power to bring in parties without their districts where ex- "25 Stat. L. 434, U. S. Comp. Anno. 265. Stat. 1901, p. 508, 4 Fed. Stat. §271. TO Prevent an Illeg^vl Advance. 329 elusive jurisdiction is created and conferred upon the courts of the United States by special acts of Congress." The judiciary- acts of March 3, 1887, and August 13, 1888, being applicable only to cases whereof the state and federal courts have concur- rent jurisdiction. From the authorities (see section 200 ante) suits to enjoin an illegal rate on interstate commerce are suits within the exclusive jurisdiction of the federal courts, and, being so, may be brought in anv district where the defendants mav be found and served.^^ "■ United States v. Standard Oil Co., 152 Fed. 290. " § 200 ante. Yan Patten v. Chi- cago etc. Ey. Co., 74 Fed. 981; Toledo etc. Ey. Co. v. Penn. Co., .54 Fed. 730, 19 L. E. A. 387, 5 I. C. E. 545, 22 IJ. S. App. 561; TTnited States v. Mooney, 116 U. S. 104, 29 L. Ed. 550, 6 Sup. Ct. 304; Atkins v. Fiber Disintegrating Co., 18 Wall. 85 U. S. 272, 21 L. Ed. 841 ; Ee Louisville Underwri- ters. 134 U. S. 488, 33 L. Ed. 991, 10 Sup. Ct. 587; Ee Hohorst, 150 U. S. 653, 37 L. Ed. 1211, 14 Sup. Ct. 221; Westinghouse Air Brake Co. V. Great N. Ey. Co., 88 Fed. 258, 31 C. C. A. 525 ; Kalispell Lum- ber Co. V. Great N. Ey. Co., 157 Fed. 845; Northern Pac. Ey. Co. v. Pacific Coast Lumber Manufactur- ers' Assn., 165 Fed. 1, C. C. A. CHAPTER VII. STATE LAWS OR REGULATIONS AFFECTING INTER- STATE TRANSPORTATION. § 300. Scope of chapter. 301. Eegulation of movement of trains. Sunday law. 302. Same subject. Speed of trains. 303. Same subject. Eequirement that trains shall stop at particular stations. 304. Same subject. Connections with other carriers and with private switch tracks. 305. Demurrage charges. 306. Furnishing cars. 307. Separate coach laws. 308. Long and short haul clause in state law. 309. State laws forbidding the consolidation of competing common carriers. 310. Quarantine laws of states. 311. Laws to promote the security and comfort of passengers. 312. State regulation of carriers and their employees. 313. Laws limiting or enlarging the common law liability of carriers. 314. Penalties for failure to pay claims. § 300. Scope of chapter. — A great variety of causes have arisen involving the construction of the commerce clause of the Constitution of the United States. The subject is treated fully in Judson on Interstate Commerce and other similar works. The purpose of this book is limited to interstate transportation, and in this chapter will be discussed those eases decided by the Su- preme Court of the United States in which were involved laws or regulations passed by state legislatures or under their author- ity and which, directty or indirectly, affected interstate trans- portation. It may be stated, as a general rule, that the proper state au- thorities, duly acting, may pass all reasonable laws for the reg- ulation of the health, happiness and safety of its citizens; and such laws and regulations are not invalid merely because they may incidentally affect interstate commerce. It may be further stated that the mere existence of power in Congress to regulate 330 §301.] Interstate Commerce. 331 interstate commerce does not exclude the states from the exer- cise of power over such commerce. In the absence of congres- sional legislation, or in the absence of action by the Interstate Commerce Commission where the matter has been delegated to it, states' may legislate affecting interstate commerce. In Cleveland, C, C. & St. L. R. Co. v. Illinois/ Mr. Justice Bro-\\Ta reviews the authorities prior thereto. He states this rule : "Few classes of cases have become more common of recent years than those wherein the police power of the state over ve- hicles of interstate commerce has been drawn in question. That such power exists and will be enforced, notwithstanding the con- stitutional authority of Congress to regulate such commerce, is evident from the large number of cases in which we have sus- tained the validity of local laws designed to secure the safety and comfort of passengers, employees, persons crossing railway tracks, and adjacent property owners, as well as other regula- tions intended for the public good." After discussing the authorities, he says : "AYith no disposition whatever to vary or qualify the cases above cited, neither the conclusions of the court nor the tenor of the opinions are opposed to the principle which we hold to in this case, that, after all local conditions have been adeciuately met, railways have the legal right to adopt special provisions for through traffic, and legislative interference therewith is un- reasonable, and an infringement upon that provision of the con- stitution which we have held requires that commerce between the states shall be free and unobstructed." § 301. Regulation of the movement of trains. Sunday Law. — The legislature of the State of Georgia prohibited the running of freight trains on any road in the state on Sunday. There were certain exceptions referring to trains carrying live stock and delayed trains. A conviction being had under the statute, and an affirmance thereof by the highest state court, the case Avas appealed to the Supreme Court. That court sustained the Georgia statute (Hennington v. Georgia, 163 U. S. 299, 41 L. Ed. 166, 16 Sup. Ct. 1086). Mr. Justice Harlan, concluding the opinion, said : "The statute of Georgia is not directed against interstate com- »177 U. S. 514, 44 L. Ed. 868, R. Co. v. Larabce Mills, 211 U. S. 20 Sup. Ct. 722. See also Mo. Pac. 612, 53 L. Ed. , 29 Sup. Ct. 332 State Laws Affecting [ § 302. merce. It establishes a rule of eivil conduct applicable iilike to all freight trains, domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight. And it places the business of transporting freight in the same category as all other secular liusiness. It simply declares that, on and during the day fixed by law as a day of rest for all people within the limits of the state from toil and labor incident to their call- ings, the transportation of freight shall be suspended. "We are of the opinion that such a law, although in a limited degree affecting interstate commerce, is not for that reason a needless intrusion upon the domain of federal jurisdiction, nor strictly a regulation of interstate commerce, but, considered in its own nature, is an ordinary police regulation designed to se- cure the well being and to promote the general welfare of the people within the state by which it was established, and there- fore not invalid by force alone of the Constitution of the United States." § 302. Same subject. Speed of trains. — In the absence of leg- islation by Congress, a city ordinance regulating the speed limit of trains within the city limits is not as to interstate trains un- constitutional. This law was announced by Mr. Justice Brewer (Erb V. Morasch, 177 IT. S. 584, 44 L. Ed. 897, 20 Sup. Ct. 819), Avho said : "A city, when authorized by the legislature, may regulate the speed of railroad trains within the city limits. Richmond, F. & P. R. Co. V. Richmond. 96 U. S. 521, 24 L. Ed. 734; Cleveland, C. C. & St. L. R. Co. V. Illinois ex rel. Jett, 177 U. S. 514, 44 L. Ed. 868, 20 Sup. Ct. Rep. 722. Such act is, even to interstate trains, one only indirectly affecting interstate commerce, and is within the power of the state until at least Congress shall take action in the matter." § 303. Same subject. Requirement that trains shall stop at particular stations. — In determining whether or not a state stat- ute or a regulation of a state commission indirectly affecting interstate commerce is valid, the Supreme Court looks to the facts to see whether or not the regulation is reasonable. To re- quire a train to run at a low rate of speed through a city may cause more delay than to require such train to stop at a particu- lar station three minutes. We have just seen in the preceding section that the limitation of speed was held legal, this was be- § 303.] Interstate Commerce. 333 cause the regulation was necessary and reasonable. A regula- tion, however, to stop an interstate train at a point where rea- sonable facilities for travel already exist is unreasonable and an invalid attempt to regulate interstate commerce. This was held in Mississippi Railroad Commission v. 111. Cent. R. Co., 203 U. S. 335, 51 L. Ed. 209, 27 Sup. Ct. 90, and the holding was correct, because the regulation was not a reasonable exer- cise of the police power of the state. The opinion written by Mr. Justice Peckham concludes : "The transportation of passengers on interstate trains as rapidly as can with safety be done is the inexorable demand of the public who use such trains. Competition between great trunk lines is fierce and at times bitter. Each line must do its best even to obtain its fair share of the transportation between states, both of passengers and freight. A wholly unnecessary, even though a small, obstacle, ought not, in fairness, to be placed in the way of an interstate road, which may thus be unable to meet the competition of its rivals. We by no means intend to impair the strength of the previous decisions of this court on the subject, nor to assume that the interstate transportation, either of passengers or freight, is to be regarded as overshadow- ing the rights of the residents of the state through which the railroad passes to adequate railroad facilities. Both claims are to be considered, and after the wants of the residents within a state or locality through which the road passes have been ade- quately supplied, regard l)eing had to all the facts bearing upon the subject, they ought not to be permitted to demand more, at the cost of the ability of the road to successfully compete with its rivals in the transportation of interstate passengers and freight. ' ' A requirement of the law of the State of Illinois that an in- terstate mail and passenger train should run to a county seat three and a half miles off' the main line is an unconstitutional interference and obstruction of interstate connneree. Illinois Central R. Co. v. Illinois, 163 U. S. 142, 41 L. Ed. 107, 16 Sup. Ct. 1096. A purely loc.il trMiii, liowevcr, tliough cari-ying pas- sengers and mail destined to points beyond tlie state, may prop- erly be ref|uired to stop at county seats directly on the line traversed by such train. Cladson v. Miiuicsola, 166 T. S. 427, 41 L. Ed. 1064, 17 Sup. Ct. 627. The Mississippi Case, supra, niciy, upon u casual reading, ap- 334 State Laws Affecting [§ 304. pear in conflict with the case of Lake S. & >\I. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. Ed. 702, 19 Sup. Ct. 465. The causes, how- ever, are easily distinguishable. In the Mississippi case the facts showed that there Avere reasonable facilities for travel with- out enforcing the order therein under investigation. In the Ohio Case all trains up to three each way each day were required to stop. Ultimately the question of whether or not a particular police regulation is reasonable must be passed upon by the courts and in one case the Supreme Court held the regulation to stop unnecessary and, therefore, unreasonable. In the other, under the facts, the regulation was necessary and, therefore, rea- sonable. The Ohio case cites and discusses the authorities, and the conclusion of the opinion makes reference to the rule adopted subsequentl}'' in the Mississippi case. This conclusion is as fol- lows : "Our present judgment has reference only to the case before us, and when other cases arise in which local statutes are al- leged not to be legitimate exertions of the police powers of the state, but to infringe upon national authority, it can then be determined whether they are to be controlled by the decision now rendered. It would be impracticable, as well as unwise, to at- tempt to lay down any rule that would govern every conceivable case that might be suggested by ingenious minds." The Mississippi case was followed upon similar facts in At- lantic C. L. E. Co. V. Wharton, 207 V. S. 328, 52 L. Ed. 230, 28 Sup. Ct. 121. § 304. Same subject. Connections with other carriers and with private switch tracks. — Where an order of a state tribunal affects only intrastate commerce, the question of whether or not it was arbitrary and unreasonable is for the state courts, and it is proper to require a carrier to furnish facilities for making the necessary connections for passengers; even, if, in doing so, that service must be furnished at a loss."" A regulation requiring a carrier to deliver cars beyond its tracks to a private switch is illegal.^ In jMcNeill v. Southern Ry. Co., cited note, supra, the North Carolina Corporation Com- = Atlantic C. L. E. Co. v. North 113, 55 C. C. A. 63, 63 L. E. A. Carolina Corp. Com., 206 U. S. 1, 213; McNeill v. So. Ey. Co., 202 51 L. Efl. 933, 27 Sup. Ct. 585. U. S. 543, 50 L. Ed. 1142, 26 Sup. 3 Central Stock Yards Co. v Ct. 722. Louisville & N. E. Co., 118 Ted. § 304.] Interstate Commerce. 335 mission entered an order requiring the railway company, upon payment of freight charges, to make delivery of the cars beyond its right of way on the siding of a private coal company. The order Avas held invalid as "amounting to an unlawful inter- ference with interstate commerce," In the Jacobson Case,^ under authority of a law of Minne- sota, the State Railroad Commission directed, and the, state courts enforced, a connection between two common carriers of the state. The carriers contended that the order was void as an unreasonable regulation of commerce, and that in requiring the construction of the connecting track, the order and judgment took property without due process of law. In the brief the con- tention was made that the law upon which the proceedings were had was "an ill-disguised attempt to control and regulate inter- state traffic." The court did not construe the order as affecting directly interstate commerce and overruled the other contention of the plaintiff in error. The opinion concludes as follows : "In this case the provision is a manifestly reasonable one, tending directly to the accommodation of the public, and in a manner not substantialh^ or unreasonably detrimental to the ultimate interests of the corporation itself. "Although to carry out the judgment may require the exer- cise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small ex- pense, yet neither fact furnishes an answer to the application of defendant in error." The Jacobson Case differs from the McNeill Case in that in the ]\IcNeill Case there was an order to connect with a private plant, while in the Jacobson Case two state common carriers were directed to make a physical connection. In the Jacobson Case the regulation only incidentally affected interstate commerce ; in the ^McNeill Case the regulation had direct reference to inter- state commerce. In discussing the ]\IcNeill Case Mr. Justice White said: "The cars of coal not having been delivered to the consignee, but remaining on the tracks of the railway company in the con- dition in which they had been originally brought into North Carolina from points outside of that state, it follows that the * Wisconsin, M. & P. R. Co. v. 191, 21 Sup. Ct. 115. Jacobson, 179 U. S. 287, 45 L. Ed. 336 State Laws A FFi'X'TixG [§304. interstate transportation of the property had not been completed when the corporation commission made the order complained of." These distinctions clearly differentiate the two cases, and make the respective opinions harmonious. The recent case of the Larabee ]Mills° is interesting and in- structive. In that ease the Supreme Court of Kansas com- pelled, by mandamus, the Missouri Pacific Railway Company to deliver cars from another road over existing transfer tracks to the mill of the Larabee j\Iills to enable the niill to ship out its manufactured product, three-fifths of which went to points out- side the State of Kansas. It appeared that the railway company accorded similar privileges to other flour mills along its right of way. In the Supreme Court of the United States the railroad relied strongly on the ]\IcNeill Case. The two cases are much alike. In the ]\IcNeill Case the delivery of loaded cars was sought over a private track to a coal yard, who built the track is not disclosed. In the Larabee ]\Iills Case the delivery of empty cars was sought over a track, the ownership of which is not dis- closed, but which was essentially for the private use of the mill. In the McNeill Case it appears that the coal cars were brought from another state, though it must have been true that at times the spur track was used in intrastate transportation ; in the Larabee Mills Case there was both inter and intrastate trans- portation from the mill. Thus far there seems to be no legal distinction between the two cases. There is, however, one clear distinction. The order in the Larabee Mills Case was made to prevent discrimination ; such fact does not appear in the ^IcNeill Case. In the Larabee ]Mills Case it was contended by the rail- road ' ' that no dut.y was imposed on the railroad company by act of the legislature or mandate of commission or other adminis- trative board." To this argument ^Ir. Justice Brewer answered: ''Xo legislative enactment, no special mandate from any com- mission, or other administrative board was necessary, for the duty arose from the fact that it was a common carrier. This lies at the foundation of the law of common carriers. Whenever one engages in that business the obligation of equal service to all arises, and that obligation, irrespective of legislative action or = Missouri Pac. Ey. Co. v. Lara- 5.3 L. Ed. , 29 Sup. Ct. bee Flour Mills Co., 211 IT. S. 612, § 304.] Interstate Commerce. 337 special mandate, can be enforced by the courts. ***** All these questions are disposed of by one well-established prop- osition, and that is that a party engaging in the business of a common carrier is bound to treat all shippers alike and can be compelled to do so by mandamus or other proper writ. ' ' What then the Supreme Court of Kansas did was to enforce the common law duty of the carrier to treat all shippers alike. This it had the right to do prior to action by Congress or the commission appointed by Congress, even though in doing so in- terstate commerce might be affected. This principle jMr. Justice Brewer states: ''This case does not rest upon any distinction between inter- state commerce and that wholly within the state. It is the con- tention of counsel for the mill company that it comes within the oft-repeated rule that the state, in the absence of express action hy Congress, may regulate many matters which indirectly affect interstate commerce, but which are for the comfort and con- venience of its citizens. Of the existence of such a rule there can be no question. It is settled and illustrated by many cases. * **#*###* rpi^g mere grant by Congress to the commission of certain national powers in respect to interstate commerce does not of itself and in the absence of action by the commission interfere with the authority of the state to make those regulations conducive to the welfare and convenience of its citizens." In discussing the McNeill Case Mr. Justice Brewer said: "There are many points of resemblance between that case and this, but there is this substantial distinction : In that was presented and determined solely the power of a state commission to make orders respecting the delivery of cars engaged in in- terstate cornmerce beyond the right of way of the carrier and to a private siding — an order which affected the movement of llie cars prior to the completion of the transportation, while here is presented, as hereinbefore indicated, the question of the power of the state to prevent discrimination between shippers, and the common law duty resting upon a carrier was enforced. This common-law duty, the state, in a case like the present may, at least in the absence of congressional action, compel a carrier to discharge." ^Ir. Justice Moody dissented, placing his dissent on the IMc- 338 State Laws Affecting [ § 305. Neill Case, between which and the instant case he saw no legal distinction. § 305. Demurrage charges. — The Interstate Commerce Com- mission has provided regulations in tariff schedule 15-A and in conference ruling as to demurrage charges. These regulations do not fix a general rule, but require the tariffs to state the charges and compels their collection. The tariff' rules are as follows : "The act requires that carriers shall publish, post, and file 'all terminal charges * * * * which in anywise change, affect, or determine * * * * the value of the service ren- dered to the passenger, shipper or consignee,' and all such charges become a part of the 'rates, fares, and charges' which the carriers are required to demand, collect, and retain. Such terminal charges include demurrage charges. Adopted May 12, "On IMarch 16, 1908, the commission decided that demurrage rules and charges applicable to interstate shipments are govern- ed by the act to regulate commerce, and therefore are within its jurisdiction and not wdthin the jurisdiction of state authorities. Any other view would open a wide door for the use of such rules and charges to effect the discrimination which the act pro- hibits. "Tariffs must be observed. — Demurrage rules and charges must be observed as strictly as transportation rules and charges. The commission can not, therefore, recognize as lawful any rule governing demurrage the application of which is dependent upon the judgment or discretion of some person, or which provides for exemption therefrom in certain exigencies in the creation of which the carrier has no part. Interstate tariffs containing such rules must be corrected or canceled." On February 3, 1908, the commission made this ruling : "32. Demurrage Charges. The delivering carrier is under obligation to collect demurrage charges assessed by it, although such charges may have accrued as the result of error on the part of another carrier. "The shipper should pay the lawfully published rate via the route over which the shipment moved, pending dispute, and then make claim for refund. The commission, in the adjust- ment of misrouting claims, Avill not ordinarily include demur- rage charges. § 306.] Interstate Commerce. 339 ''"When the delivering carrier demands more than the lawful rate, the consignee is released from the obligation to pay demur- rage charges accruing during the pendency of the dispute as to the lawful rate. On March 16, 1908, the commission issued this conference ruling : "54. Demurrage on Interstate Shipments. Questions of de- murrage and car service on interstate shipments are within the jurisdiction of the Interstate Commerce Commission, which does not concur in the view that such matters, even when pertaining to interstate shipments, are within the control of state commis- sions. ' ' This ruling is awkwardly expressed. It means that the ques- tion is within the jurisdiction of the Interstate Conunerce Com- mission, though contention has been made that state commis- sions may control questions of demurrage ''even when pertain- ing to interstate shipments." Under the rule of law that when the federal government has acted on a particular question relating to interstate commerce the state can not act, all questions pertaining to demurrage on interstate shipments would be controlled by the federal author- ities. Demurrage on purely intrastate shipments could be controlled by the state authorities.^ § 306. Furnishing cars. — It is the duty of each common car- rier to furnish cars to the extent of its ability for the movement of all freight, such cars to be furnished without discrimination. Notwithstanding the fact that discrimination is prohibted by the interstate commerce act, it would seem that a state might make a reasonable regulation fixing the specific rules relating to furnishing cars upon demand. If such rules recognized the fact that carriers must furnish to all alike and allowed all reasonable excuses for failure to comply therewith, the rules would be valid. The Texas legislature passed a law prescribing rules under which carriers should furnish cars to shippers. A penalty was fixed as follows : "When cars are applied for under the provisions of this " Houston & T. C. R. Co. v. Mayes, Sup. Ct. 491. 201 U. S. 321, 50 L. Ed. 772, 26 340 State Laws Affecting [§ 306. chapter, if they are not furnished the railway company so fail- ing to furnish them shall forfeit to the party or parties so ap- plying for them the sum of $25 per day for each car failed to be furnished, to be recovered in any court of competent jurisdic- tion, and all actual damages such applicant may sustain." The only excuse that the carrier could give to escape the pen- alty was "strikes or other public calamity." The Texas Court of Civil Appeals having sustained a judgment for a penalty under the statute,' the cause was appealed to the Supreme Court, where that court determined the question of whether or not the regulation was reasonable, as it had a right to do, the regulation affecting interstate commerce. The Texas statute was held void as being an unreasonable regulation of interstate commerce. ]\Ir. Justice BroMH, delivering the opinion, said:^ ''"While there is much to be said in favor of laws requiring railroads to furnish adequate facilities for the transportation of both freight and passengers, and to regulate the general subject of speed, length, and frequency of stops, for the heating, light- ing, and ventilation of passenger ears, the furnishing of food and water to cattle and other live stock, we think an absolute requirement that a railroad shall furnish a certain number of ears at a specified day, regardless of every other consideration except strikes and other public calamities, transcends the police power of the state, and amoimts to a burden upon interstate com- merce. It makes no exception in cases of a sudden congestion of traffic, an actual inability to furnish cars by reason of their tem- porary and unavoidable detention in other states, or in other places within the same state. It makes no allowance for inter- ference of traffic occasioned by wrecks or other accidents upon the same or other roads, involving a detention of traffic, the breaking of bridges, accidental fires, washouts, or other unavoid- able consequences of heavy weather." Had the regulation allowed all proper excuses for failing to furnish the cars, it would have been reasonable and, therefore, valid. In concluding the opinion IMr. Justice Bro^\'n said : ''Although it may be admitted that the statute is not far from the line of proper police regulation, we think that sufficient ^ Houston & T. C. E. Co. v. Mayes, 201 U. S. 321, 50 L. Ed. 772, 26 36 Tex. Civ. App. 606, 609, 83 S. Sup. Ct. 491. See also Southern Ey. W. 53, 55. Co. V. Melton, Ga. , 65 S. E. « Houston & T. C. E. Co. v, Mayes, 665. § 307.] Interstate Commerce. 341 allowance is not made for the practical difficulties in the admin- istration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the legislature." § 307. Separate coach laws. — The statute of Louisiana, which, as construed by the courts of that state, compelled common car- riers to receive, in apartments set aside for whites only, negro passengers was held by the Supreme Court to be invalid in so far as it affected interstate commerce." The court cpioted from the opinion of Mr. Justice Field, in AVelton v. ^Missouri,'" to the effect that, "inaction (by Congress) * * * * ig equivalent to a declaration that interstate commerce shall remain free and untrammeled, ' ' and said : "Applying that principle to the circumstances of this case, congressional inaction left Benson at liberty to adopt such rea- sonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him most for the interest of all concerned. The statute under which this suit is brought, as construed by the state court, seeks to take away from him that power so long as he is within Louisiana ; and while recognizing to the fullest extent the principle which sustains a statute, unless its uncon- situtionality is clearly established, we think this statute, to the extent that it requires those engaged in the transportation of passengers among the states to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional and void." "While this decision has been criticised by text book writers, it is sound in principle. Carriers may not imjustly discriminate between those who patronize them, but they are free, subject to that rule and the further one that charges must not be unrea- sonable, to regulate the general conduct of their business. It can not be held to be an unjust discrimination to require whites and negroes to ride in separate compartments of a public con- veyance, the accommodation being equal. For the negro to con- tend he is discriminated against in favor of the white man would be a contention on his part of inferiority to the white man. The separation of equals discriminates in favor of neither. Whatever may be said as to the actual inferiority of the negro, he is, undei tlie law, entitled to equal rights with tlic other races. "Tlall V. DeCuir. 95 U. S. 5 Otto '» Wclton v. Missouri, 91 U. S. 48.J, l.'4 ].. J-M. 547. 275, 282, 2.3 L. Ed. 347, 350. 3-42 State Laws Affecting [§ 307. The State of IMississippi has a law requiring railroads carry- ing passengers to give "separate accommodations to white and colored races, ' ' by furnishing either separate coaches or separate compartments in the same coach. The law was construed by the state courts as applying only to commerce within the state. The Supreme Court of the United States held the law valid." The decision is in harmony with the case of Hall v. DeCuir, supra. In the Louisiana case the regulation affected interstate commerce and was invalid ; in the Mississippi case the regulation did not affect interstate commerce and Avas valid. In the IMissis- sippi case the court said : "The reason for this is that both the charge and the actual transportation in such cases are exclusively confined to the limits of the territory of the state, and is not commerce among the states, or interstate commerce, but is exclusively commerce within the state. So far, therefore, as this class of transportation, as an element of commerce, is affected by the statute under considera- tion, it is not subject to the constitutional provision concerning commerce among the states. It has often been held in this court, and there can be no doubt about it, that there is a com- merce wholly within the state, which is not subject to the con- stitutional provision, and the distinction between commerce among the states and the other class of commerce between citi- zens of a single state, and conducted within its limits exclusively, is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other." Louisiana subsequently passed a separate coach law, which the Supreme Court sustained, as it only affected commerce in that state." A similar law in Kentuclry- was also sustained by the Supreme Court." " Louisville, N. O. & Tex. Ey. 537, 41 L. Ed. 256, 16 Sup. Ct. 1138. Co. V. Mississippi, 133 U. S. 587, "Chesapeake & Ohio Ey. Co. v. 33 L. Ed. 784, 10 Sup. Ct. 348, 2 Kentucky, 179 IT. S. 388, 45 L. Ed. I. C. E. 801. The case in the Su- 244, 21 Sup. Ct. 101. See also Ed- preme Court of Iklississippi was wards v. N. C. & St. L. Ey. Co., 12 styled Louisville, N. 0. & T. Ey. Co. I. C. C. E. 247 ; Gaines v. Seaboard V. Mississippi, 66 Miss. 662, 5 L. E. A. L. Ey., 16 I. C. C. E. 471 ; Cozart A. 132, 6 So. 203, 2 L C. E. 615, v. Southern Ey. Co., 16 L C. C. E. 14 Am. St. Eep. 509. 226. "Plessy V. Ferguson, 163 U. S. § 308.] Interstate Commerce. 343 § 308. Long and short haul clause in state law. — The law of the State of Kentucky provided that it shall be unlawful for any person or corporation owning or operating a railroad in the state to charge or receive any greater compensation in the aggre- gate for the transportation of passengers or of property of like kind, 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 in the longer dis- tance. The Kentucky court " having affirmed a judgment against the Louisville & Nashville Eailroad Company for a violation of that law, an appeal was taken to the Supreme Court of the United States, where the Kentucky court was affirmed." In this case both the long and the short haul w^ere within the State of Ken- tucky. In holding that the Kentucky law did not illegally af- fect interstate commerce, the court said : "It is plain that the provision in question does not in terms embrace the case of interstate traffic. It is restricted in its reg- ulation to those who own or operate a railroad within the state, and the long and short distances mentioned are evidently dis- tances upon the railroad line within the state. The particular case before us is one involving only the transportation of coal from one point in the State of Kentucky to another by a cor- poration of that state. ''It may be that the enforcement of the state regulation for- bidding discrimination in rates in the case of articles of a like kind carried for different distances over the same line may some- what affect commerce generally; but we have frequently held that such a result is too remote and indirect to be regarded as an interference with interstate commerce; that the interference with the commercial power of the general government, to be un- lawful, must be direct, and not the merely incidental effect of enforcing the police powers of a state." In another case where the state court held that the law ap- plied where the long haul was interstate commerce, the Supreme Court reversed the state court and held that the Kentucky law so construed was invalid. The court, Mr. Justice Peckhara de- " Louisville & N. R. Co. v. Ken- "Louisville & N. E. Co. v. Ken- tucky, 21 Ky. Law Eep. 232, 51 S. tucky, 183 U. S. 503, 46 L. Ed. 298, W. 1G4, 1012, 106 Ky. 633. 22 Sup. Ct. 95. 344: State Ijavvs Affecting [§ 309. livering the opinion, and ^Ir. Justice Brewer and Mr. Justice Gray dissenting, saying : " "Congress does not directly or indirectly interfere with local rates by adopting their sum as the interstate rate. "In the case at bar the state claims only to regulate its local rates by the standard of the interstate rate, and says that the former shall be no higher than the latter, but the direct eifect. of that provision is, as we have seen, to regulate the interstate rate, for to do any interstate business at the local rate is im- possible, and if so, it must give up its interstate business or else reduce the rate in proportion. That very result is a hindrance to, an interference with, and a regulation of, commerce between the states, carried on, though it may be, by only a single com- pany. "We are of the opinion that as construed by the state court, and so far as it is made applicable to or affects interstate com- merce, the 218th section of the Constitution of Kentucky is in- valid." § 309. State laws forbidding the consolidation of competing common carriers. — A constitutional provision of the State of Kentucky prohibiting the consolidation of stocks, franchises or property, as well as the purchase and lease, of parallel and com- peting lines of railroad does not so interfere with interstate commerce as to be invalid. The "instruments of commerce" may be regulated by the states. In sustaining the foregoing law of Kentucky, Mr. Justice BrowTi, announcing the opinion of the Supreme Court, said : " "The power to construct them (railroads) involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable. In the division of autliority with respect to interstate raihvays Congress reserved to itself the superior right to control their commerce and forbid interference therewith; while to the states remains the power to create and to regulate the instru- ments of such commerce, so far as necessary to the conservation of the public interests. "Louisville & N. E. Co. v. Eu- 16 Sup. Ct. 714. Explained, North- bank, 184 U. S. 27, 46 L. Ed. 416, ern Securities Co. v. United States, 22 Sup. Ct. 277. 193 U. S. 197, 348, 48 L. Ed. 679, "Louisville & N. E. Co. v. Ken- 705, 24 Sup. Ct. 436. tucky, 161 U. S. 677, 40 L. Ed. 849, § 310.] Interstate Commerce. 345 ''If it be assumed that the states have no right to forbid the consolidation of competing lines, because the whole subject is within the control of Congress, it would necessarily follow that Congress would have the power to authorize such consolidation in defiance of state legislation, — a proposition which needs only to be stated to demonstrate its unsoundness." § 310. Quarantine laws of states. — States may protect them- selves and their inhabitants from contagious or infectious dis- eases. There are many cases to this effect, most of which will be found cited in Reid v. Colorado,'** where the principle is an- nounced by Mr. Justice Harlan : "Now, it is said that the defendant has a right under the Constitution of the United States to ship live stock from one state to another state. This will be conceded on all hands. But the defendant is not given by that instrument the i^ight to in- troduce into a state, against its will, live stock affected by a con- tagious, infectious, or communicable disease, and whose pres- ence in the state will or may be injurious to its domestic ani- mals. The state — Congress not having assumed charge of the matter as involved in interstate commerce — may protect its peo- ple and their property against such dangers, taking care always that the means employed to that end do not go beyond the necessities of the case or luireasonably burden the exercise of privileges secured by the Constitution of the United States. * As, therefore, the statute does not forbid the introduction into the state of all live stock coming from the defined territory, — that diseased as well as that not diseased, — but only prescribes certain methods to protect the domestic animals of Colorado from contact with live stock coming from that territory between certain dates, and as those methods have been devised by the state under the power to protect the property of its people from injury, and do not appear upon their face to be unreasonable, we must, in the absence of evidence showing the contrary, as- sume that they are appropriate to the object which the state is entitled to accomplish." § 311. Laws to promote the security and comfort of passen- gers. — States may protect the personal security of those who are " Reifl V. Colorado, 187 U. S. 1.37, iiiorce Clause Federal Constitution, 1.11, 152, 47 L. Ed. 108, 115, 116, § 95. 23 Sup. Ct. 92. See also Cooke Com- 346 State Laws Affecting [§ 312. passengers ou cars used wilhin their limits. Under this prin- ciple, a law of New York prescribing how passenger cars should be heated, was, in the absence of national regulation on the subject, valid. This Avas true though the regulation incidentally affected interstate commerce.*" § 312. State regulation of carriers and their employees. — A state statute requiring engineers to be examined and licensed is not void, though it may incidentally and remotely affect inter- state commerce:"" A law of a state forbidding those affected with color blindness from acting as locomotive engineers is a valid exercise of the state's police power.'* In sustaining the above principle, Mv. Justice Field said: "It is conceded that the power of Congress to regulate inter- state commerce is plenary; that, as incident to it. Congress may legislate as to the qualifications, duties and liabilities of em- ployes and others on railway trains engaged in that commerce; and that such legislation will supersede any state action on the subject. But until such legislation is had, it is clearly within the competency of the states to provide against accidents on trains whilst within their limits. Indeed, it is a principle fully recognized by decisions of state and federal courts, that wher- ever there is any business in which, either from the products created or the instrumentalities used, there is danger to life or property, it is not only within the power of the states, but it is among their plain duties, to make provision against accidents likely to follow in such business, so that the dangers attending it may be guarded against so far as is practicable." Under this principle, a state law requiring a certain number of employes to a train, known as the Full Crew Law, is valid.'''' If a state can not regulate the employees of railroads in so far as they are engaged in intrastate commerce, they can not be regulated.'* >« New York, N. H. & H. R. Co. " Nashville, C. & St. L. R. Co. v. V. New York, 165 U. S. 628, 41 L. Alabama, 128 U. S. 96, 32 L. Ed. Ed. 853, 17 Sup. Ct. 418. In a note 352, 9 Sup. Ct. 28. to the decision will be found cited a '^ Chicago, R. I. & P. Ry. Co. v. large number of cases sustaining Arkansas, 86 Ark. 412, 111 S. W. the general principle involved in the 456. statement of law in this section. -^ Howard v. Illinois C. R. Co., =» Smith V. Alabama, 124 U. S. 207 U. S. 463, 52 L. Ed. 297, 28 465, 31 L. Ed. 508, 8 Sup. Ct. 564, Sup. Ct. 141. See a discussion of 1 I. C. R. 804. Smith v. Alabama and similar cases §313.] Interstate Commerce. 347 A regulation requiring guard posts on railroad trestles and bridges a valid exercise of the state's police power.'* § 313. Laws limiting or enlarging the common law liability of carriers. — The question of the right of a railroad company to limit its common law liability as a carrier by contract is one of general law upon which the Supreme Court of the United States will exercise its judgment. It is none the less the law of the states and any state may pass laws on the subject. Therefore, as to transportation within a state, the legislature of that state may provide that a contract of a common carrier by which it exempts itself from its common law liability is void."" The statute of Virginia provides: "When a common carrier accepts for transportation anything directed to a point of destination beyond his own line he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such accept- ance, such carrier be released or exempted from such liability by contract in writing signed by the o^^^ler or his agent." Suit was brought against the carrier issuing the bill of lading to recover for the loss of goods shipped from Virginia to Louis- iana. The carrier depended on a clause in its bill of lading, not signed by the shipper, exempting it from liability for loss be- yond its o's^Ti line. The shipper relied on the statute, which was sustained by the Supreme Court."'^ Section twenty of the act to regulate commerce, it will be remembered, contains a clause sim- ilar to the Virginia law, supra. A law of Missouri similar to the Virginia law was also sus- tained by the Supreme Court of the United States." The refusal of a state court to hold valid a provision of a bill of lading limiting the carrier's liability to a stated sum does not violate any of the provisions of the interstate commerce act.^* in dissenting opinion of Mr. Justice -"Eicbmond & A. E. Co. v. Pat- Moody, torson, 169 U. S. 311, 42 L. Ed. 759, ^' New York Cent. & II. R. E. Co. 18 Sup. Ct. 335. V. New York, 165 U. S. 628, 41 L. -^Mo., Kan. & Tex. Ey. Co. v. Ed. 8.'3, 17 Sup. Ct. 418, affirming IMcCann, 174 U. S. 580, 43 L. Ed. ]42 N. Y. 646, 37 N. E. .568. ]093, 19 Sup. Ct. 75.5. "Chicago, M. & St. P. Ey. Co. v. ^^ Penn. E. Co. v, Hughes, 191 U. Solan, 169 U. S. 133, 42 L. Ed. S. 477, 48 L. Ed. 268, 24 Sup. Ct. 688, 18 Sup. Ct. 289. See notes L. 132. Ed. 348 State Laws Affecting [§ 314. A provision of the law of Georgia, applicable both to inter and intrastate connneree, that a carrier, in order to exempt itself from liability beyond its own line, should inform the shipper, in writing, when, where and how and by which carrier the freight was lost or damaged was held invalid by the Supreme Court.'" The Georgia case is distinguished from the Virginia case, note °° supra, although the Virginia case required the carrier to show that the loss did not occur on its own line, when the shipper had signed a contract which limited the liability of the carrier to its o^vn line. It would, therefore, seem that the Georgia law is just a little beyond the boundary line that marks the difference between a reasonable and an unreasonable regulation. In con- sidering the Virginia case the court said : ''These vieAvs dispose of the substantial questions which the case presents, for the contention which arises on the concluding sentences of the statute, imposing upon a carrier a duty where the loss has not happened on the carrier's own line to inform the shipper of this fact, is but a regulation manifestly within the power of the state to adopt." Subsequent to the decision of the Supreme Court of the United States, the Supreme Court of Georgia held that the Georgia statute applied only to intrastate commerce and so lim- ited was valid.'" The Interstate Commerce Commission, by order 787, of June 27, 1908, approved a uniform bill of lading. This contract would, of course, control in interstate transactions. § 314. Penalties for failure to pay claims. — A law of South Carolina providing that should a carrier fail, within a time there- in stated, to pay a claim for loss or damage, such carrier was subject to a penalty of Mty dollars. The law applied both to intrastate and interstate commerce, the time to settle being forty days in the former and ninety days in the latter. In a case in the Supreme Court of the United States involving an intrastate sliipment where judgment had been entered for fifty dollars penalty and one dollar and seventy-five cents damage, the law was sustained.''' Mr. Justice Brewer, delivering the opinion, said : =« Central of Ga. R. Co. v. Mur- ^o g^y^ij^^ jjy. Co. v. Eagsdale, phey, 196 U. S. 194, 49 L. Ed. 444, 119 Ga. 773, 47 S. E. 179. 25 Sup. Ct. 218. Eeversing same ^^ Seaboard Air Line Ey. v. See- case, 116 Ga. 863, 43 S. E. 265, 60 gers, 207 U. S. 73, 52 L. Ed. 108, L. E. A. 817. 28 Sup. Ct. 28. Same case below, § 314.] Interstate Commerce. 349 "Further, the matter to be adjusted is one peculiarly within the knowledge of the carrier. It receives the goods and has them in its custody until the carriage is completed. It loiows what injury was 'done during the shipment, and how it was done. The consignee may not know what was in fact delivered at the time of the shipment, and the shipper may not know what was deliv- ered to the consignee at the close of the transportation. The carrier can determine the amount of the loss more accurately and promptly and with less delay and expense than any one else, and for the adjustment of loss or damage to shipments within the state forty days can not be said to be an unreasonably short length of time." Whether the statute Avould have been valid had the shipment been interstate was not determined. 73 S. C. 71, 52 S. W. 797. See also S. C. 479, 52 S. E. 223. Best V. Seaboard A. L. Ey. Co. 72 CHAPTER VIII. ACTS OF CONGRESS INDIRECTLY AFFECTING INTER- STATE TRANSPORTATION. § 400. Scope of chapter. 401. The twentyeight hour law. 402. Sherman antitrust law. 403. Safety appliance acts. 404. Employers' liability act. 405. Enforcement by state courts of rights under the safety appliance and employers' liability acts. 406. Arbitration act. 407. Corporation tax law. § 400. Scope of chapter. — The general purpose of this work is to state the law governing the transportation of interstate freight and passengers. It is not a treatise on the general law of carriers, nor is it a disenssion of the commerce clause of the Constitution of the United States. These questions are inci- dentally involved, but the main purpose of the work is to treat of the rights of shippers and carriers which arise out of or are affected by the acts of Congress. Of these acts, the act to reg- ulate commerce, the amendments thereof and supplements there- to, including the Elldns law, are the most important. These acts are herein copied and annotated (see chapter nine). The 28-hour law directly affects the questions discussed in this book. A Imowledge of the other statutes hereinafter refer- red to is sometimes necessary to a clear understanding of the questions affecting the rights and duties of carriers engaged in interstate transportation. For this reason, reference to these statutes will be made in this chapter. § 401. The twenty-eight hour law. — The statute known as the twenty-eight hour law, or sometimes designated as the f\ct to prevent cruelty to animals, became law June 29, 1906, though prior thereto the act of IMarch 3, 1873, codified in the Revised Statutes of the United States. §§ 4386 to 4390, contained sim- 350 § 402.] Affecting Interstate Transportation. 351 ilar provisions. This act (see chapter 10 post) requires that animals being shipped as interstate freight shall not be con- fined longer than twenty-eight hours without unloading for rest, water, and feeding. There are certain exceptions provided for. The expense of feeding is placed on the owner, and when the carrier furnishes feed, he has a lien for the value thereof. Pen- alties, recoverable by the United States by civil action, are pro- vided for. The act is a valid exercise of the power granted Con- gress over foreign and interstate commerce. Before penalties can be recovered, the carrier must Imowingly and wilfully fail to comply with the law. This does not mean, however, that there must be an evil intent, it is sufficient if the act was intentionally and purposely done. An accident caused by the negligence of the carrier is not a sufficient defense. The suit is civil in its nature and proof by a preponderance of the evidence is sufficient. One penalty can be recovered for each shipment, whether such shipment consists of one or a train load of animals, ''the shipment, and not the train load, being the, integer contemplated as the objective thing to which the offense relates." ^ § 402. Sherman Anti-Trust Law. — The Sherman Anti-Trust Law is copied and annotated in chapter eleven hereof. The act was at first construed as not applying to carriers. This question was definitely settled in Trans-lMissouri Freight Asso. Case.' In this case the court said: "The language of the act includes every contract, combina- tion in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations. So far as the very terms of the statute go, they apply to any contract of the nature described. A contract therefore ^United States v. Baltimore & O. Co. v. United States, 169 Fed. 69, S. W. R. Co., 159 Fed. 33, 86 C. C. C. C. A. , United States v. A. 223; United States v. Oregon S. New York C. & H. E. R. Co., 168 L. R. Co., 160 Fed. 526; United Fed. 699, C. C. A. ; United States V. Sioux City Stock Yards States v. Union Pac. R. Co., 169 Co., 162 Fed. 556; United States Fed. 65, C. C. A. ; Wiscon- V. Oregon R. & Nav. Co., 163 Fed. sin Central Ry. Co. v. United States, 642; Mont. Cent. R. Co. v. United 109 Fed. 76, C. C. A. States, 164 Fed. 400, C. C. A. = United States v. Trans-Missouri New York C. & IT. R. R. Co. v. Freight Asso., 166 U. S. 290, 41 L. United States, 165 Fed. 833, C. Ivl. 1007, 17 Sup. Ct. 540, 1 Fed. C. A. , St. Louis & S. F. Ry. Co. Anti-Trust Dec. 648. 352 Acts of Congress Indirectly [§ 403. that is ill resti'aint of trade or commerce is by the strict lan- guage of tlie act prohibited even though such contract is entered into between competing carriers by railroad, and only for the purposes of thereby affecting traffic rates for the transportation of persons and property. ********** Tj^g point urged on the defendants' part is that the statute was not really intended to reach that kind of an agreement relating only to traffic rates entered into by competing common carriers by railroad; that it was intended to reach only those who were en- gaged in the manufacture or sale of articles of commerce, and who by means of trusts, combinations and conspiracies were en- gaged in affecting the supply or the price or the place of manu- facture of such articles. The terms of the act do not bear out such construction. Railroad companies are instruments of com- merce, and their business is commerce itself." This ruling was folloAved in the Joint Traffic Case.'' The effect of a violation of this act has been discussed hereinbefore in sec- tion 55, and is forcibly pointed out by Judge Speer in the Tift Case.* § 403. Safety appliance acts. — Under the title of Safety Ap- pliance Acts may be included the Automatic Coupler Act (Ap- pendix A) of March 2, 1893, as amended April 1, 1896, a sup- plement to the Automatic Coupler Act passed March 2, 1903 (Appendix B) ; the act requiring reports of accidents (Appen- dix C) ; the hours of service act (Appendix D) ; the ash pan act (Appendix E) ; the explosive acts (Appendix F). These acts may not all be logically classed as safety appliance acts, yet they all relate to the safety of interstate transporta- tion and may properly be considered together. These acts rest upon the right of Congress to regulate com- merce with foreign nations and among the several states. The primary object of all these acts was to promote the public wel- fare by securing the safety of employees and travelers ; the acts are, therefore, remedial and should be so construed as not to de- feat the obvious intention of Congress.^ ^United States v. Joint Traffic Fed. 753, 2 Fed. Anti-Trust Dec. Asso., 171 U. S. 505, 43 L. Ed. 259, 733. 19 Sup. Ct. 25, 1 Fed. Anti-Trust ''Safety Appliance Act, March 2, Dec. 869. 1893, chap. 196, 27 Stat. L. 531, U. * Tift V. Southern Ey. Co., 138 S. Comp. Stat. 1901, p. 3174, 6 Fed. § 404.] Affecting Interstate Transportation. 353 § 404. Employers' Liability Act. — The first employers' lia- bility act, that of Jmie 11, 1906, chap. 3073, 34 Stat L. 232, was declared by the Supreme Court of the United States to be unconstitutional, because, as construed, it applied not only to employees of carriers engaged in interstate, but also to carriers while engaged in intrastate commerce. "Whether the act vio- lated the 14th Amendment was not decided, but reference was made to decisions of the court holding valid state laws making a special regulation as to a carrier's liability to its employees. From these citations and from a consideration of the opinions both concurring and dissenting, it is believed that the present act is valid." The present act (Appendix G) was approved April 22, 1908.^ The act is remedial, is not penal and should be liberally con- strued to effect its beneficent purposes. In the labor laws of the United States, contained in the twen- ty-second annual report of the Connnission of Labor, will be found all the state laws similar to the Federal Employer's Lia- bility Act up the time that report was prepared. Since then Texas and Georgia have passed laws applying to intrastate com- merce substantially the same as that contained in the federal act. That the states may do this is clearly shown in Howard V. Illinois Central R. Co., note," supra. That the Texas and the Georgia laws are valid can, therefore, be safely assumed. It is always a question of fact, in each ease, as to whether or not the commerce at the time an injury may occur is within the one or Stat. Ann. 752, amended April 1, Southern Pac. Co., 196 U. S. 1, 49 1S96, 29 Stat. L. 85, and act ot L. Ed. .363, 25 Sup. Ct. 158 ; ScWem- March 2, 1903, chap. 976, 32 Stat. mer v. Buffalo, E. & P. E. Co., 205 L. 943, U. S. Comp. Stat. Supp. U. S. 1, 51 L. Ed. 681, 27 Sup. Ct. 603, 10 Fed. Stat. Ann. 375. 407. Act Eequiring Eeports of Acci- "Employers' Liability Cases, dents, Act March 3, 1901, chap. 866, Howard v. 111. Cent. E. Co., 207 U. 31 Stat. L. 1446, U. S. Comp. Stat. S. 463, 52 L. Ed. 297, 28 Sup. Ct. p. 3176, 6 Fed. Stat. Ann. 757. 141. Thornton Employers' Liabil- Act Limiting Hours of Service of ity and Safety Appliance Acts. Employees, Act March 4, 1907, chap. Missouri P. E. Co. v. Mackey, 127 29.39, 34 Stat. L. 1415. V. S. 205, 32 L. Ed. 107, 8 Sup. Ct. Ash Pan Act, May 30, 1908, chap.' 1161; Minneapolis & St. L. E. Co. 225, 35 Stat. L. 476. v. Herrick, 127 U. S. 210, 32 L. Ed. Explosives Act, May 30, 1908, 109, 8 Sup. Ct. 1176; Chicago, K. chap. 234, 35 Stat. L. 554. & W. E. Co. v. Pontius, 157 U. S. United States v. Atlantic C. L. E. 209, 39 L. Ed. 675, 15 Sup. Ct. 585, Co., 153 Fed. 918 j Jobnsou v. ' Chapter 149, 35 Stat. L. 65, 354 Acts OP CoxGRESS Indirectly [§405. the other law. Questions of jurisdiction will also be determined upon the facts in each case. It tends, therefore, to harmony that the states are adopting the federal statute. The same car- rier should not, in performing the same kind of service, be sub- jected to conflicting laws, merely because in one case the injury is caused by a car or train engaged in interstate commerce and in the other such car or train is engaged in purely state com- merce. In most cases, however, it wdll be found that the car- rier is engaged in transporting interstate commerce. The act of Congress applies only to common carriers while engaged in in- terstate commerce and to employees while employed by such car- riers in such commerce. For a discussion of what is interstate commerce see ante §§ 5 and 7, and post §§ 500, 501 and 502. § 405. Enforcement by state courts of rights under the safety appliance and employers' liability acts. — In section 200 infra it was seen that causes arising under the Constitution and laws of the United States were within the judicial powers of the federal courts. It is also true that such power may be exclusive in the federal courts, or may be concurrently exercised by the statt courts. In all cases Congress may provide that the enforcement of rights under a federal statute shall be exclusively in the fed- eral courts. But whether so provided b}^ Congress or not, if the enforcement of a law of the United States by the courts of the several states is incompatible with the general purposes of such law, the federal courts have exclusive jurisdiction. Revised Statutes of the United States, § 629, gives the circuit courts original jurisdiction, regardless of the amount in controversy, of certain cases there mentioned. Cases under the statutes here under discussion are not mentioned in that section, and it is not incompatible with the act for it to be enforced by state courts, and there seems no doubt that, in proper cases, the courts of the several states may enforce individual rights aris- ing under these acts. The judiciary act of ]\Iarch 3. 1887 (4 Fed. Stat. Ann. 265, 266). recognizes a concurrent jurisdiction of the courts of the United States "with the courts of the several states" * * "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars," and where such cases arise "under the Constitution or laws of the United States."' 'Employers' Liability and Safety note 2. Appliance Acts by Tbonitoji, § 105, § 405.] Affecting Interstate Transportation. 355 "While that a state court has concurrent jurisdiction with the federal courts is admitted, it has been said : ' " If an action be brought under the statute, by an employe, in a state court, there is no serious doubt about its removal into a federal court. The liability is one given by a federal statute, and the defendant has the right to insist that that liability be determined by the courts of the nation that created it. Nor is the question of citzenship of the defendant involved." Perhaps this statement is accurate if a suit is brought under the act and it should appear from the plaintiff 's statement of his case that a construction of the act was necessary to determine the rights set up in the petition; but, where suit is brought to en- force a right given by the statute, a construction of the law not being involved in plaintiff's statement of his case, the mere fact that the ''liabilitj^ is one given by a federal statute is not suf- ficient to authorize a removal of the cause from a state to a fed- eral court." " These principles are supported by a forceful opinion of Judge Newman in Miller v. 111. Cent. E. Co., cited note '° supra. In that case plaintiff brought his suit in a state court, setting up in his petition a full copy of the Employers' Liability Act, and claiming rights thereunder. Upon petition, defendant removed the cause to the federal court, where, upon motion, Judge New- man remanded the cause to the state court. After discussing the authorities, Judge Newman concludes by saying : ''Taking the plaintiff's case as presented by his declaration, it does not appear that the construction of the act known as the 'Employers' Liability Act' of Congress is in any Avay involved in this case. It seems to be a case where the decision will depend entirely upon the facts of the case as applied to the law. The mere application of the act of Congress to the case gives no right of removal. The decision of the case must depend upon its con- struction, and this in no way appears in the plaintiff's pleadings in this case." In a case brought in Connecticut under the Employers' Lia- bility Act the trial court sustained a demurrer, which ruling 'TfL § 106. 53 L. Erl. , 29 Sup. Ct. 42. "Miller v. Illinois C. E. Co., 168 " Iloxie v. New York, N. II. & Fcfl. 982. See also Louisville & N. II. R. Co., 73 Atl. 754, Com. R. Co. V. Mottley, 211 U. S. 149, 356 Acts op Congress Indirectly [§406. the Supreme Court sustained, concluding a lengthy opinion as follows : "To sum up our conclusions, the judgment of the superior court was right on each of the following grounds: (1) Congress did not intend by the act of April 22, 1908, to authorize the in- stitution of an action under it in the courts of the states. (2) It had no power to make it incumbent on the state courts to assume jurisdiction of such an action. (3) The issues before the su- perior court involved the consideration of those points, which justified of themselves the dismissal of the plaintiff's action ; but, further (4) the act, so far as it concerns this cause, is wholly void by reason of certain of its provisions which can not be sep- arated from the rest. ' ' The opinion of Judge Newman appears to be more consistent with reason and authority. § 406. Arbitration Act. — The act of June 1, 1898,'" known as the Arbitration x\ct, or sometimes as the Erdman Act, had as its purpose the settlement of controversies between carriers and their employees. This statute is persuasive and does not at- tempt to be compulsory. Arbitrators under the act are essen- tially common law arbitrators and rights of the parties thereto rest upon the contract of arbitration, which contract must be construed in accordance with the rules governing contracts. In an arbitration had in accordance with the terms of the act, Judge Van Fleet speaks of the ''very commendable object aimed at by the act" and says : " " The evident purpose of the law was to afford a ready, summary, and speedy method of amicably ad- justing labor disputes arising between the class of employers and employees to which it applies." § 407. Corporation tax law. — In the Payne tariff law there are provisions levying on all corporations, whether organized under the laws of the United States, a state, or a territory, a special excise tax with respect to the carrying on or doing busi- ness by such corporation, joint stock company or association, or insurance company, equivalent to one per centum upon the en- tire net income over and above five thousand dollars received by its from all sources during such year, exclusive of amounts " Arbitration Act, also called Stat. 1901, p. 3205. Appendix H. Erdman Act, approved June 1, 1898, " Re Southern Pacific Co., 155 chap. 370, 30 Stat. L. 424 et. seq., Fed. 1001. 4 Fed. Stat. Ann. 784, U. S. Comp. § 407.] Affecting Interstate Transportation. 357 received by it as dividends upon stock of other corporations, joint stock companies or associations, or insurance companies, subject to the tax thereby imposed. Foreign corporations are also liable to the same tax upon the amount of net income over and above five thousand dollars re- ceived by them from business transacted and capital invested within the United States and its territories, Alaska, and the Dis- trict of Columbia during such year, exclusive of amounts so re- ceived by them as dividends upon stock of other corporations, joint stock companies or associations, or insurance companies, subject to the tax hereby imposed. Labor, agricultural, horticultural and fraternal beneficiary societies are exempted. Provision is made for the ascertainment of the amount of taxes that may be due under the act, and for the collection thereof. By the provisions of this tax act, the federal govern- ment will be able to acquire information as to the conduct of the business of corporations, and the provisions are supposed to offer an opportimity for the general government to advance to laws regulating and licensing corporations.'* This tax is similar to that provided for in the War Revenue Act of June 13, 1898 (30 Stat. L. 449, 464, chap. 448, U. S. Comp. St. 1901, pp. 549, 550) section 27 levjdng an excise tax on the business of refining petroleum and sugar and the busi- ness of pipe line companies. The Spreckles Sugar Refining Company having paid the war revenue tax under protest, sued to recover the amount paid, claiming that that law was invalid. The Supreme Court held the law valid, saying: " "In view of these and other decided cases, we can not hold that the tax imposed on the plaintiff expressly with reference to its 'carrying on or doing the business of . . . refining sugar,' and which was to be measured by its gross annual receipts in excess of a named sum, is other than is described in the act of Congress, — a special excise tax, and not a direct one, to be apportioned among the states according to their respective numbers. This conclusion is inevitable from the judgments in prior cases, in which the court has dealt with the distinctions, often very dif- " § 38 of the Payne Tariff Act, " Spreckles Sugar Refining Co, v. approved August 5, 1909, Appendix McT>ain, 192 IT. S. 397, 48 L. Ed. I. 49G, 24 Sup. Ct. 376. 358 Acts of Congress Indirectly [§407. ficult to be expressed in words, between taxes that arc direct and those which are to be regarded simply as excises. The grounds upon which those judgments were rested need not be restated or re-examined. It would subserve no useful purpose to do so. It might suffice now to say that they clearly negative the idea that the tax here involved is a direct one, to be apportioned among the states according to numbers. "It is said that if regard be had to the decision in the income tax cases, a different conclusion from that just stated must be reached. On the contrary, the precise question here was not in- tended to be decided in those cases. For, in the opinion on the rehearing of the income tax cases, the chief justice said: 'We have considered the act only in respect of the tax on income de- rived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the in- stances in which taxation on business, privileges, or employments has assumed the guise of an excise tax and been sustained as such.' Pollock V. Farmers' Loan & Trust Co., 158 U. S. 601, 39 L. Ed. 1108. 15 Sup. Ct. Eep. 912." CHAPTER IX. • ACTS REGULATING COMMERCE. TncludiBg act ajiproved February 4, 1887, chapter 104, effective April 5, 1887, 24 Stat. L. 379, U. S. Comp. Stat. 1901, P. 3154, 3 Fed. Stat. Ann. 809, et. seq. Known as the Cullom Act. Amendment of March 2, 1889, 25 Stat. L. 855, Chap. 382, U. S. Comp. Stat. 1901, p. 3158, 3 Fed. Stat. Ann. 852, et. seq. Amendment of February 10, 1891, Chapter 128, 26 Stat. L. 753, U. S. Comp. Stat. 1901, p. 3163, 3 Fed. Stat. 839. Amendment of February 8, 1895, Chap. 61, 28 Stat. L. 643, U. S. Comp. Stat. 1901, p. 3171, 3 Fed. Stat. Ann. 851. Act February 11, 1893, 27 Stat. L. 443, Chap. 83, U. S. Comp. Stat. 1901, p. 3173, 3 Fed. Stat. Ann. 855. Known as the Testimony Act. Act February 11, 1903, Chapter 544, 32 Stat. L. 823, U. S. Comp. Stat. Supp. 1907, 10 Fed. Stat. Ann. 199. Known as the Expediting Act. Act February 19, 1903, Chap. 708, 32 Stat. L. 847, U. S. Comp. Stat. Supp. 1907, p. 880, 10 Fed. Stat. Ann. 170. Known as the Elkins Act. Act February 25, 1903, Chap. 755, 32 Stat. L. 903, 10 Fed. Stat. Ann. 173, being section one of the Appropriation Act. Act January 29, 1906, 34 Stat. L. 584, Chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892, Fed. Stat. Ann. Supp. 1907, p. 167. Known as the Hepburn Act. Act June 30, 1906, Chap. 3920, 34 Stat. L. 798, U. S. Comp. Stat. Supp. 1907, p. 900, Fed. Stat. Ann. Supp. 1907, p. 382. Act April 13, 1908, 35 Stat. L. 60, Chap. 143. § 500. Scope of act to regulate commerce. 501. Not applicable to intrastate transportation. 502. Terms "common carrier," "railroad," and "transportation" de- fined. 503. Duty of carrier to furnish transportation and to establish through routes. 504. All transportation charges must be reasonable. 505. Free service, with certain exceptions, prohibited and penalties pre- scribed. 506. Eailroad companies prohibited from transporting commodities in which they are interested with certain exceptions. 507. Terms under which switch connections shall be made. 508. Definition and prohibition of unjust discrimination. 509. Undue and unreasonable preference prohibited. 510. Carriers shall accord reasonable and equal facilities for inter- change of traffic. 359 360 Acts Kegulating Commerce. 511. Eule as to long and short hauls. 512. Pooling of freights and division of earnings prohibited. 513. Carriers shall file, print and keep public schedules of rates. 514. Eegulations as to printing and posting schedules of rates for freight moving through foreign countries from and to any place in the United States. 515. No change of schedules of rates shall be made without notice. 516. Names of all carriers parties to schedules must be specified. 517. Carriers shall file contracts relating to traffic arrangements. 518. Commission may prescribe form of schedules. 519. No carrier shall participate in interstate commerce unless the charges therefor are published, and no such carrier shall deviate from the published schedules. 520. Preference and precedence may be given military traffic in time of •war, 521. Corporations violating the act to regulate commsrce guilty as indi- viduals and punishment prescribed. 522. Eebate. Punishment for offering, granting, soliciting or ac- cepting. 523. Act of officer or agent, when binding. 524. Carrier filing or participating in rate bound thereby. 525. Forfeiture for rebating in addition to penalties. Limitation of six years fixed. 526. Contracts and combinations to prevent continuous carriage of freight prohibited. 527. Damages and attorneys fees' allowed for violations. 528. Where to sue for damages. Compulsory attendance of witnesses and production of papers. 529. Penalties for violations of the act. 530. Penalties for false billing, false classification, false weighing, etc., by carriers. 531. Penalties against shippers for false billing, etc 532. Penalties and damages for inducing discriminations. 533. Appointment and term of office of commissioners. 534. Power and duty of commissioners. 535. Power of courts to punish for disobedience, witness not excused because testimony may incriminate. 536. Eight to take testimony by deposition and the manner thereof prescribed. 537. Persons who may file complaints before the commission and prac- tice with reference thereto. 538. Eeports of commission on investigations, how made and published. 539. Power of commission to determine and prescribe just and reason- able rates, regulations and practices. 540. When orders take effect and how long continue unless modified or set aside by the commission or a court. 541. Division of joint rate may be prescribed by commission. 542. Through routes and joint rates may be established by commis- sion. Acts Kegulating Commerce. 361 543. Charges for instrumentalities furnished by shipper must be rea- sonable. 544. Enumeration of powers of commission not exclusive. 545. Award of damages shall be made by commission after hearing. 546. Carrier failing to comply with order for reparation, suit may be brought thereon in United States circuit courts, the order being prima facie evidence of right to recover. 547. Limitation on action for damages. 548. All parties jointly awarded damages may sue as plaintiffs against all carriers parties to the award. 549. Service of orders of commission. 550. Commission may suspend or modify its orders. 551. Punishment for knowingly disobeying an order issued under sec- tion fifteen. 552. District attorney and attorney-general to prosecute. Special at- torneys may be employed. 553. Courts may enforce obedience to commission's orders, mandatory or otherwise. 554. Appeals to supreme court, priority of hearing. 555. Venue of suits to enjoin, set aside, annul, or suspend an order ol the commission. 556. Expediting act applicable to such suits as well as suits to enforce orders of commission. 557. Limitation on right to grant injunction against commission 's order. Provisions for apj^eal from interlocutory order. 558. Schedules, contracts, etc., must be filed with the commission, and, when filed, original or certified copy prima facie evidence. 559. Kehearings may be granted by the commission. 560. Procedure before the commission. 561. Salaries and expenses of the commission. 562. Principal office of commission in Washington, but may prosecute inquiries elsewhere. 563. Annual reports required and what they shall contain. Penalties for failure to make. 564. Commission may prescribe form of keeping accounts and inspect same. 565. Penalties for failure to keep accounts and for falsifying the record. 566. Penalty for an examiner divulging information received as such. 567. United States circuit and district courts may, upon application, of Attorney General at request of commission, enforce provisions of act. 568. Commission may employ agents or examiners. 569. Eeceiving carrier liable for loss, remedy cumulative. 570. Annual reports by commission to Congress. 571. Circumstances under which reduced or free fares and rates may be given. 572. Existing remedies not abridged or altered. Pending litigation not affected. 362 Acts Regt'latixg Commerce. [§500. 573. InterchangealDle mileage tickets, how issued. 574. Discrimination may be prevented by writ of mandamus, remedy cumulative. 575. Number, terms, qualifications, salary and appointment of com- missioners. 576. Existing laws as to obtaining testimony applicable to act. 577. Eepealing conflicting laws not to affect pending suits. 578. Time of taking effect of act. 579. Parties defendant other than carriers in suit to enforce provisions of act. 580. Equitable proceedings may be instituted by the commission to re- strain discrimination or departure from published rates. 581. Immunity and compulsory attendance of witnesses, production of books and papers. 582. Expediting act applicable to suits brought under direction of at- torney-general. 583. Eepealing clause not affecting pending suits or accrued rights. When act takes effect. 584. Certain cases given precedence and hearing expedited. Hearing before three judges. 585. Direct appeal to Supreme Court. 586. Compulsory attendance of witnesses and production of papers pro- vided for. 587. Amendment to act making compulsory attendance of witnesses and production of papers. § 500. Scope of act to regulate commerce. — That the provi- sions of this act shall apply to any corporation or any person or persons engaged in the transportation of oil or other com- modity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by rail- road, or partly by pipe lines and partly by water, who shall be considered and held to be common carriers within the meaning and purpose of this act, and to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrange- ment for a continuous carriage or shipment, from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States, or the District of Columbia, or from one place in a territory'- to another place in the same territory, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign comitry to any other place in the United States, and also to the transportation in like manner of prop- § 500.] Acts Regulating Commerce. 363 erty shipped from any place in the United States to a foreign country, and carried from such phiee to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country. Paragraph one of section one of act to regulate commerce, as amended by act of June 29, 1906. The original act read: "That the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, manage- ment 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 man- ner of property shipped from any place in the United States to a foreign country and carried from such place to a port of trans- shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country." Original act constitutional. Int. Com. Com. v. Brimson, 154 U. S. 447, 448, 38 L. Ed. 1047, 14 Sup. Ct. 1125. A purely intrastate carrier not participating in a through movement is not within the act because the ultimate destination of the traffic may be beyond the state. Mo. & 111. Rd. Tie & Lumber Co. v. Cape etc. R. Co., 1 I. C. C. R. 30, 1 I. C. R. 607; New Jersey Fruit Ex. v. Central R. Co. of New Jersey, 2 I. C. C. R. 142, 2 I. C. R. 84. Express companies not within orig- inal act, though railroads conducting an express business are. Re Express Companies, 1 I. C. C. R. 349, 1 I. C. R. 677 ; United States v. Morsman, 42 Fed. 448. A state road owning no rolling stock but used as a means of mterstate traffic within act. Heck v. E. T. V. & G. R. Co., 1 I. C. C. R. 495, 1 I. C. R. 775. An interstate bridge subject to act. Ky. & Ind. Bridge Co. v. L. & N. R. Co., 2 I. C. C. R. 162, 2 I. C. R. 102. Order not enforced. Same style case, 37 Fed. 567. Commerce between points in the state but passing through another state is interstate commerce. New Orleans Cotton Ex- 364 Acts Reglxating Commerce. [§ 500. change v. Cincinnati, N. 0. & T. P. R. Co., 2 I. C. C. R. 375, 2 I. C. R. 289 ; Milk Producers Asso. v. Delaware etc. R. Co., 7 I. C. C. R. 92, 162. Foreign carriers participating in traffic from points in the United States to adjacent countries subject. Re Investigation Acts Grand Trunk Railway of Canada, 3 I. C. C. R. 89, 2 I. C. R. 496. Independent water lines not subject. New Orleans Cotton Exchange v. 111. Cent. R. Co., 3 I. C. C. R. 534, 562, 2 I. C. R. 777. When a state carrier engages in interstate commerce it be- comes subject to the act. Mattingly v. Penn. Co., 3 I. C. C. R. 592, 2 I. C. R. 806. State steamboat not within act. Cape- hart & Smith V. L. & N. R. Co., 4 I. C. C. R. 265, 3 I. C. R. 278. "Common control, management or arrangement" defined. Bos- ton Fruit & Produce Exchange v. New York and New England R. Co., 4 I. C. C. R. 664, 3 I. C. R. 493. See same case, 5 I. C. C. R. 1, 3 I. C. R. 604.' See also Trammel Railroad Commission of Ga. V. Clyde Steamship Company, 5 I. C. C. R. 324, 4 I. C. R. 120. All roads, including purely state roads, participating in an interstate haul subject to act. James and IMayer Buggy Com- pany V. Cincinnati, N. 0. & T. P. R. Co., 4 1. C. C. R. 744, 3 I. C. R. 682. Order not enforced in circuit but was enforced in Su- preme Court. Int. Com. Com. v. Cincinnati, N. 0. & T. P. R. Co., 56 Fed. 925, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. Same rule when all water carrier joins. R. R. Com. of Florida V. Savannah, Fla. & W. R. Co., 5 I. C. C. R. 13, 136, 3 I. C. R. 688, 750. Order not enforced. Savannah, F. & ,W. R. Co. v. Florida Fruit Exchange, 167 U. S. 512, 42 L. Ed. 257, 17 Sup. Ct. 998. The charter of the Northern Pacific Railroad Company does not exempt it from control of act. Raworth v. N. Pac. R. Co., 5 I. C. C. R. 234, 3 I. C. R. 857. Merchants Union of Spo- kane Falls V. N. Pac. R. Co., 5 I. C. C. R. 478, 4 I. C. R. 183. Order not enforced. Farmers' L. & T. Co. v. N. Pac. R. Co., 83 Fed. 249. Receivers of railroad companies subject to act. Independent Refiners Asso. v. W. N. Y. & Penn. R. Co., 6 I. C. C. R. 378, 386. Order not enforced. W. N. Y. & P. R. Co. V. Penn. Refining Co., 137 Fed. 343, 70 C. C. A. 23. Affirmed, 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. . Electric Railway partly in Maryland and partly in District of Columbia subject to act. Wilson v. Rock Creek Ry. Co., 7 I. C. C. R. 83. Does not apply to transportation by wagon. Cary v. Eureka Springs Ry. Co., 7 I. C. C. R. 286. Stock Yards Terminal Road at Chi- § 500.] Acts Regulating Commerce. 365 cago not a common carrier. Cattle Raisers Asso. of Texas v. Ft. Worth & D. C. Ry. Co., 7 I. C. C. R. 513, 555-a. Order not enforced. 98 Fed. 173; 103 Fed. 241); 43 C. C. A. 209; 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824. Import and export traffic over rail carriers within jurisdiction. Ocean carriers not. Kemble v. Boston & A. R. Co., 8 I. C. C. R. 110, 119. The de- terminating features of a through shipment is the contract. Matter of Alleged Unlawful Rates and Practices in Transporta- tion of Cotton, 8 I. C. C. R. 121. "Within act when engaged with other carriers in through transportation. Alleged Violation of Act by St. L. & S. F. Ry. Co., 8 I. C. C. R. 290, Penn. Millers Asso. V. Philadelphia & R. Ry. Co., 8 I. C. C. R. 531, 549. Ap- plies on a movement from Canada to United States, Cist. v. Mich. Cent. R. Co., 10 I. C. C. R. 217. Shipment from one to another local point even though there may be an intention to thereafter ship to another and an interstate point is entitled to the local rate. Hope Cotton Oil Co. v. Tex. & Pac. Ry. Co., 10 I. C. C. R. 696, 703. After a car has arrived at its destination a subse- quently contracted for switching movement to another place in the same city and state is not within the act. St". Louis Hay and Grain Company v. Chicago, B. & Q. R. Co., 11 I. C. C. R. 82. Refrigeration charges within act. Re Charges for Transporta- tion and Refrigeration of Fruit, 11 I. C. C. R. 129. Stage line over which part of a through movement is had not within act. Wylie V. N. Pac. Hy. Co.. 11 I. C. C. R. 145. Baggage transfer not within act. Re Exchange of Free Transportation, 12 I. C. C. R. 39. A ferry transport joining in a through route and joint rate is within act. Enterprise Transportation Co. v. Penn. R. Co., 12 I. C. C. R. 326, 335, 336. While a shipment to a local point with intention to thereafter make a new contract for shipment to an interstate point is not within the act, the car- rier must not act as agent of the shipi)er in making the reconsign- ment. Morgan v. M. K. & T. Ry. Co., 12 I. C. C. R. 525. No distinction betAveen electric and steam roads. Chicago & M. Electric R. Co. v. 111. Cent. R. Co., 13 I. C. C. R. 20. No juris- diction over shipments from ports of United States to a foreign country not adjacent to this country. Cosmopolitan Shipping Co. V. Hamburg Am. Packet Co., 13 I. C. C. R. 266, 272, 273. 274; Lykes S. S. Line v. Commercial T^nion. 13 T. C. C. R. 310. Interstate movement regarded as an entii-ety and all carriers participating therein are subject to the act. Subject fully dis- 366 Acts Regulating Commerce. [§ 500. cussed and cases cited. Leonard v. Kansas City S. Ry. Co., 13 I. C. C. R. 573. A terminal corapanj'- o\vned by the same in- terests as a railroad within act. ''Railroad" includes depots, yards and grounds. Eichenberg v. So. Pac. Co., 14 I. C. C. R. 250. Order not enjoined. So. Pac. T. Co. v. Int. Com. Com., 166 Fed. 13-i. Interstate carriers by water are subject to act only in respect to traffic transported under a common control, manage- ment or arrangement with a rail carrier. With respect to other traffic such water carriers are exempt from the provisions of the act. Re Jurisdiction Over Water Carriers, 15 I. C. C. R. 205. Switching not within act. Chicago, IM. & St. P. Ry. Co. v. Becker, 32 Fed. 849. Water carrier from one state to another not joining in a through bill of lading with rail carriers not subject to act. Terms of section defined. Ex parte Koehler, 30 Fed. 867. A bridge crossing a stream from one state to another which is leased to a railroad is not a common carrier. Ky. & Ind. Bridge Co. v. L. & N. R. Co., 37 Fed. 567. A shipment from one to another point in a state and which was immediately re- shipped by the agent of consignor to a point without the state within section. Cutting v. Fla. Ry. & Nav. Co., 46 Fed. 641. A state road b}^ joining in a contract for through traffic becomes subject to the act to regulate commerce. Augusta S. R. Co. v. Wrightsville & T. R. Co., 74 Fed. 522 ; United States v. Seaboard Ry. Co.. 82 Fed. 563; Interstate Stock Yards Co. v. Indianapolis U. Ry. Co.. 99 Fed. 472; Cassatt v. IMitchell Coal & Coke Co., 150 Fed. 32, 81 C. C. A. 80. 10 L. R. A. (N. S.) 99; Mitchell Coal & Coke Co. v. Cassatt. 207 U. S. 181, 187. 52 L. Ed. 160, 163. 28 Sup. Ct. 108. 110; U. S. v. New York, C..& H. R. R. Co. 153 Fed. 630. Affirmed, New York C. & H. R. R. Co., 212 U. S. 481. 500. 53 L. Ed. , 29 Sup. Ct. 304. United States v. Standard Oil Co., 155 Fed. 305. Reversed on another ground. Standard Oil Co. v. U. S., 164 Fed. 376, C. C. A. . United States V. Union Stock Yards Co. of Omaha. 161 Fed. 919; United States v. Sioux City Stock Yards. 162 Fed. 556. If the state carrier receives no freight on nor issues through bills of lading it is not subject. Int. Com. Com. v. Bellaire Z. & C. Ry. Co., 77 Fed. 942; United States v. Chicago. K. & S. R. Co., 81 Fed. 783; United States v. Geddes, 131 Fed. 452, 65 C. C. A. 320; State of Iowa v. Chicago. M. & St. P. Ry. Co.. 33 Fed. 391, 145 U. S. 631, 36 L. Ed. 857, 12 Sup. Ct. 978. Transportation from one point to another in the same state, though passing § 500.] Acts Regulating Commerce. 367 through another state, is not interstate commei'ce. United States V. Lehigh Valley R. Co., 115 Fed. 373; Lehigh Valley R. Co. V. Pennsylvania, 145 U. S. 192, 36 L. Ed. 672, 12 Sup. Ct. 806. Contra United States v. Delaware, L. & W. R. Co., 152 Fed. 269, citing Hanley v. Kansas City etc. R. Co., 187 U. S. 617, 47 L. Ed. 333, 23 Sup. Ct. 214 ; Lord v. Goodall N. & P. Steam^ ship Co., 102 U. S. 541; 26 L. Ed. 224; Pacific Coast S. S. Co. V. Railroad Comrs., 9 Sawy. 253, 18 Fed. 10. Hanley v. R. R., supra, definitely settles the question that such transportation is interstate commerce. Private car companies furnishing their cars indiscriminately to carriers subject to act. Int. Com. Com. V. Reichmann, 145 Fed. 235. The test of subjection to the act is through routing in inter- state commerce. United States v. "Wood, 145 Fed. 405, 411. All carriers engaged in transporting interstate freight by a con- tinuous passage are within the regulations of interstate com- merce by Congress. United States v. Colorado and N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27; same style, 157 Fed. 342, 85 C. C. A. 48. Phillips, district judge, dissenting in an able opin- ion. Chicago, B. & Q. R. Co. v. United States, 157 Fed. 830, 85 C. C. A. 194. A water carrier operating entirely within a state but engaged in transporting interstate commerce is subject to regulation by Congress. The steamer Daniel Ball, 10 AVall, 77 U. S. 557, 19 L. Ed. 999. Exportation begins when goods are committed to a common carrier for transportation beyond the state. Coe v. Errol, 116 U. S. 517, 29 L. Ed. 715. 4 Sup. Ct. 475. A local car- rier transporting interstate commerce under through bills of lad- ing is engaged in interstate commerce. Cincinnati, New Orleans & T. P. Ry. Co. V. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. For commission decision see James & Mayer Buggy Co. V. Cincinnati, N. 0. & T. P. Ry. Co., 4 I. C. C. R. 744, 2 I. C. R. 625, 3 id. 682, Circuit Court, 56 Fed. 925, Circuit Court of Appeals, 64 Fed. 981, 13 U. S. App. 730. Int. Com. Com. V. Detroit, G. H. & M. Ry. Co., 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. Affirming, 74 Fed. 803, 21 C. C. A. 103. Norfolk & W. R. Co. v. Penn., 136 U. S. 114, 34 L. Ed. 394, 10 Sup. Ct. 958; United States v. Wood, 145 Fed. 405; United States v. New York C. & II. R. R. Co., 153 Fed. 630, 632. Throu'-'-h 1f;insportation without through bills of lading make interstate commerce subject to the act. United States v. Colo- 368 Acts Kegilating Commerce. [§501. rado & N. W. R. Co., 157 Fed. 321, and eases cited. Railroads that share in an agreed interstate rate subject to act. L. & N. R. Co. V. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209. See same ease 6 I. C. C. R. 257, 4 I. C. R. 520, 71 Fed. 835, 83 Fed. 898, 28 C. C. A. 229, 42 U. S. App. 581. Mere intention to continue the transportation of an interstate shipment after it reaches its destination to another point in the same state as such destination will not make the last shipment interstate. Gulf etc. Ry. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540, 27 Sup. Ct. 360. See Judson Int. Com. §§ 104 to 118. Express companies under the amendment of June 29, 1906, included. United States V. Wells Fargo Ex. Co., 161 Fed. 606. American Ex- press Co. V. United States, 212 U. S. 522, 53 L. Ed. , 29 Sup. Ct. § 501. Not applicable to intrastate transportation. — Provided, however, that the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, de- livering, storage, or handling of property Avholly within one state and not shipped to or from a foreign coimtry^ from or to any state or territory as aforesaid. Proviso to paragraph one, section one, as originally enacted. For annotations, see next preceding section. § 502. Terms "common carrier," "railroad," and "transporta- tion" defined. — The term "common carrier" as used in this act shall include express companies and sleeping car companies. The term "railroad," as used in this act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by anj'' corporation oper- ating a railroad, whether owned or operated under a contract, agreement or lease, and shall also include all switches, spurs, tracks and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said prop- erty ; and the term "transportation" shall include cars and other vehicles and all instrumentalities and facilities, of shipment or carriage, irrespective of o^Miership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventila- tion, refrigeration or icing, storage, and handling of property transported, § 503.] Acts Regulating Commerce. 369 Paragraph two. section one, of act as amended act of June 29, 1906. The paragraph of the original act read: The term '^railroad" as used in this act shall include all bridges and ferries used or operated in connection with any rail- road, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agree- ment, or lease; and the term ''transportation" shall include all instrumentalities of shipment or carriage." A privately owned stock car not a common carrier. Burton Stock Car Co. v. Chicago. B. & Q. R. Co., 1 I. C. C. R. 132, 1 I. C. R. 329, 353. Express companies not included in original act. Re Express Companies, 1 I. C. C. R. 349, 369, 1 I. C. R. 677. Re- port of Commission 1887, 1 I. C. R. 650, 657. An interstate bridge a common carrier. Ky. & I. Bridge Co. v. L. & N. R. Co., 2 I. C. C. R. 162, 2 I. C. R. 102. Contra holding the bridge company not a common carrier. Ky. & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567. A stock yards terminal road not a common carrier. Cattle Raisers Asso. v. Ft. W. & D. C. Ry. Co., 7 I. C. C. R. 513, 555-a. Order not enforced. Int. Com. Com. v. Chi- cago. B. & Q. R. Co., 98 Fed. 173, 103 Fed. 249, 43 C. C. A. 209, 186 U. S. 320. 46 L. Ed. 1182. 22 Sup. Ct. 824. Stage line not a common carrier within meaning of this act. "Wylie v. N. Pac. Ry. Co., 11 I. C. C. R. 145. Baggage company not within act, and "common carrier" means a carrier subject to the act. Re Right of R. R. Co's. to Exchange Free Transportation with Local Transfer Co's. 12 I. C. C. R. 39. A ferry transportation company entering into a through transportation arrangement is a common carrier. Enterprise Trans. Co. v. Penn. R. Co., 12 I. C. C. R. 326, 335. "Railroad" defined. Eichenberg v. So. Pac. Co., 14 I. C. C. R. 250. "Common carrier" defined. Unit- ed States V. Sioux City Stock Yards Co., 162 Fed. 556. § 503. Duty of carrier to furnish transportation and to es- tablish through routes. — And it sliall be the duty of every car- rier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto. Added to paragraph two, section one, by act of June 29, 1906. The original act did not compel nor empower the commission 1o compel the estaljlislinicrit of through routes. Chicago & A. R. Co. V. Penn. Co., 1 I. C. C. R. S6, 1 I. C. R. 357; Little Rock 370 Acts Regttt.ating Commerce. [§ 504. & I\r. R. Co. V. East Temi.. Ya. & Ga. E. Co.. 3 I. C. C. R. 1, 2 I. C. R. 45-4, citing Englisli law and I'ci'omiiiciiding amendments. Commercial Club of Omaha v. Chicago, Rock I. & P. Ry. Co., 6 I. C. C. R. 647. 677; Gustin v. 111. Cent. R. Co.. 7 I. C. C. R. 376. And carriers could make through routes with (me road and not with others. Capehart v. L. & N. R. Co., 4 I. C. C. R. 265, 3 I. C. R. 278. AYhen through routes are established they must be kept open to public use. Consolidated Forwarding Co. V. So. Pac. Co., 9 I. C. C. R. 182, 205. Order enforced. Int. Com. Com. v. So. Pac. Co., 123 Fed. 597, 132 Fed. 829. Circuit court reversed. 200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330. See same case, 10 I. C. C. R. 590. Through route ordered es- tablished. Cattle Raisers Asso. of Texas v. Galveston, H. & S. A. Ry. Co.. 12 I. C. C. R. 20; Birmingham Packing Co. v. Tex. & Pac. Ry. Co., 12 I. C. C. R. 29, 500; American National Live Stock Asso. V. Tex. & Pac. Ry. Co., 12 I. C. C. R. 32; Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. R. 364. Through routes and through rates discussed and defined. Re Through Routes and Through Rates, 12 I. C. C. R. 163. In- demnity may be required of an irresponsible carrier before com- pelling through route and joint rate. Enterprise Transportation Co. V. Penn. R. Co., 12 I. C. C. R. 326. Where a reasonable through route exists, the law does not require the commission to establish another through route. Loup Creek Colliery Co. v. Va. Ry. Co., 12 I. C. C. R. 471 ; Stedman v. Chicago & N. W. R. Co., 13 I. C. C. R. 167; Chicago & M. Elec. R. Co. v. 111. Cent. R. Co., 13 I. C. C. R. 20; Cardiff Coal Co. v. Chicago, M. & St. P. R. Co. 13 I. C. C. R. 460; Crane R. Co. v. Pliiladelphia & R. Ry. Co., 15 I. C. C. R. 248. When all parties are before it, the commission will fix through routes and joint rates. Merchants Traffic Asso. v. New York, N. H. and H. R. Co., 13 I. C. C. R. 220. Section cited Enterprise Fuel Co. v. Penn. R. Co., 16 I. C. C. R. 219, 221. § 504. All transportation charges must be reasonable. — All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in con- nection therewith, shall be just and reasonable; and every un- just and unreasonable charge for such service, or any part there- of, is prohibited and declared to be unlawful. Paragraph three, section one, as amended. § 504.] Acts Regulating Commerce. 371 The old act read as f olllows : "All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just ; and every unjust and unreasonable charge for such service is pro- hibited and declared to be unlawful." Provision applies to exceptional charges under section four. Re Southern Railway & Steamship Asso. (Re Petition of L. & N. R. Co.) 1 I. C. C. R. 31, 1 I. C. R. 278. A rate might not violate this section yet be illegal because discriminatory. Ray- mond V. Chicago, M. & St. P. Ry. Co., 1 I. C. C. R. 230, 1 I. C. R. 627. A carrier should not make rates for the purpose of keeping a commodity on its line. Reynolds v. W. N. Y. & P. R. Co., 1 I. C. C. R. 393, 1 I. C. R. 685. What must be consid- ered in determining the reasonableness of a rate. Boston Cham- ber of Commerce v. Lake Shore etc. R. Co., 1 I. C. C. R., 436, 1 I. C. R. 754. An intermediate local rate should not exceed the through rate plus the local back to the intermediate point. Martin v. So. Pac. Co., 2 I. C. C. R. 1, 2 I. C. R. 1. Rates may be fixed on other than a mileage basis. La Crosse M. & J. Union V. Chicago, M. & St. P. R. Co., ,1 I. C. C. R. 629, 2 I. C. R. 9. All surrounding circumstances and conditions must be consid- ered in determining what is a reasonable rate. Bus. INIen's Asso. of ]\Iinn. V. Chicago, St. P. & M. 'R. Co., 2 I. C. C. R. 52, 2 I. C. R. 41. Apportionment of rates between different parts of a line may be considered. Brady v. Penn. R. Co., 2 I. C. C. R. 131, 2 I. C. R. 78. No jurisdiction to increase rates. Re Chicago, St. P. & K. C. R. Co., 2 I. C. C. R. 231, 2 I. C. R. 137. Question a perplexing one involving a great variety of situations. Howell v. N. Y., L. E. & W. R. Co., 2 I. C. C. R. 272, 2 I. C. R. 162. Ex- cessive rates not justified even when road earns little more than operating expenses. New Orleans Cotton Ex. v. Cincinnati, N. 0. & T. P. R. Co., 2 I. C. C. R. 375, 2 I. C. R. 289. The fact that cost of transportation is exceedingly great ])y reason of the pe^ culiar situation of a road should l)e considered. Rice v. W. N. Y. & Penn. R. Co., 2 I. C. C. R. 389, 2 F. C. R. 2i)8. Through rates may be proportionately less than ]o(;al rates. Lippman v. ill. Cent. R. Co., 2 I. C. C. R. 584, 2 T. C. R. 414. Long mainte- nance of ;\ rate evidence that it is reasonably low. Logan (North- westei'ii Iowa Grain & Slock' Shippers Asso.) v. Chicago & N, 372 Acts Eegttlating Commerce. [§504. W. R. Co., 2 I. C. C. R. 604, 2 I. C. R. 431. Mileage should be considered. MeMorran v. Grand Trunk R. Co., 3 I. C. C. R. 252, 2 I. C. R. 604. Classification of freight legal. Thurber v. N. Y. Cent. & H. R. R. Co., 3 I. C. C. R. 473, 2 I. C. R. 742. The proportion of a through rate may be less than the local. New Orleans Cotton Ex. v. 111. Cent. R. Co., 3 I. C. C. R. 534, 2 I. C. R. 777. Equitably graduated charges for like traffic having regard to amount of traffic is just. Lehmann v. So. Pac. Co., 4 I. C. C. R. 1, 3 I. C. R. 80. In the carriage of the great staples which supply an enormous business and which in market value and actual cost of transportation are among the cheapest articles of commerce, rates yielding moderate profit are both justifiable and necessary. Re Alleged Excessive Freight Rates on Food Products. 4 I. C. C. R. 48, 3 I. C. R. 93, 104; Mayor, etc. v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 534, Farmers' etc. Club v. A. T. & S. F. Ry. Co., 12 I. C. C. R. 351, 360. As a general rule, the charge per ton mile should decrease with distance. Manu- facturers & Jobbers Union of JMankato v. Minneapolis & St. L. R. Co., 4 I. C. C. R. 79, 3 I. C. R. 115; Hilton Lumber Co. v. Wilmington etc. R. Co., 9 I. C. C. R. 17, 31. Commodity class rates legal. New York Board of Trade v. Penn. R. Co., 4 I. C. C. R. 447, 3 I. C. R. 417. Order enforced. Int. Com. Com. v. Tex. & Pac. Ry. Co., 52 Fed. 187, 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408. Circuit court reversed. Texas & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. Classification and group rates legal. Coxe Bros. & Co. V. Lehigh Valley R. Co., 4 I. C. C. R. 535, 3 I. C. R. 460. Order not enforced. Int. Com. Com. v. Lehigh Valley Ry. Co., 74 Fed. 784. Elements to be considered in fixing rates on perishable fruits. Boston Fruit & Pro. Ex. v. New York & N. E. R. Co., 4 I. C. C. R. 664, 3 I. C. R. 493, 604, 5 L C. C. R. 1. Comparison with rates of other localities not alone sufficient to show unreasonableness. Lincoln Creamery v. Union Pac. Ry. Co., 5 I. C. C. R. 156, 3 I. C. R. 794. Salt requires a relatively low rate, but should not be moved at unremunerative rates. Anthony Salt Co. v. Mo. Pac. R. Co., 5 I. C. C. R. 229, 4 I. C. R. 33. Rates should bear a fair relation to antecedent cost of production. Loud v. S. C. R. Co., 5 I. C. C. R. 529, 4 I. C. R. 205. A local rate is prima facie excessive as part of a through rate. Board of Trade of Troy v. Ala. M. R. Co., 6 I. C. C. R. 1. Order not enforced. Int. Com. Com. v. Ala M. R. Co., 69 § 504.] Acts Regulating Commerce. 373 Fed. 227, 74 Fed. 715, 21 C. C. A. 51, 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. Cost of service only one element in determ- ining reasonableness of rates. Schumacher Milling Co. v. Chi- cago, R. I. & Pac. Ry. Co., 6 I. C. C. R. 61, 4 I. C. R. 373. Trans- portation charges on rival companies or branch lines are to be considered in fixing rates. IMorrell v. U. Pac. Ry. Co., 6 I. C. C. R. 121, 4 I. C. R. 469, 473. The value of comparisons depends upon the degree of similarity of circumstances. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co., 6 I. C. C. R. 195, 4 I. C. R. 592. Order not enforced. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co., 76 Fed. 183, 167 U. S. 479, 42 L. Ed. 243, 17 Sup Ct. 896. There is no necessary connection between rates between the same points in opposite directions. Duncan v. A. T. & S. F. Ry. Co., 6 I. C. C. R. 85, 103. 4 I. C. R. 385 ; MacLoon v. Boston & M. R. Co., 9 I. C. C. R. 642. Rates on steel and iron equal to the average rates unjust, different cost of manufacturing the same product, no reason for different rate. Colorado Fuel & Iron Co. v. So. Pac. Co., 6 I. C. C. R. 488, 515. Order not enforced. 101 Fed. 779, 42 C. C. A. 12. For a com- parison in rates to be of any value there must be substantial similarity. Evans v. U. Pac. Co., 6 I. C. C. R. 520. Rates must be relatively as well as absolutely just. Page v. Delaware, L. & W. R. Co., 6 I. C. C. R. 548. Financial necessities of carrier en- titled to weight but not controlling. Jerome Hill Cotton Co. v. ]\Io. Kan. & Tex. R. Co., 6 I. C. C. R. 601, 622. Uniform blanket rate from all stations held unreasonable. Milk Producers Pro- tective Asso. V. Delaware, L. & W. R. Co., 7 I. C. C. R. 92, 164. Distance an important element in determining reasonableness of rates. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co., 7 I. C. C. R. 180. Group rates applied to cities con- siderable distance apart prima facie illegal. Commercial Club of Omaha v. Chicago & N. W. Ry. Co., 7 I. C. C. R. 386. Inter- state rates are not reciuired to conform to those fixed under state laws. Savannah Bureau of Freight & Transportation v. Charleston & S. Ry. Co., 7 I. C. C. R. 601. Principles of rate making discussed. Grain Shippers Asso. of Northwest Iowa v. 111. Cent. R. Co., 8 I. C. C. R. 158. Rate per ton mile while val- uable is not controling. Gustin v. A. T. & S. F. R. Co., 8 I. C. C. R. 277. A rate can seldom be considered "in and of itself." Tileston Milling Co. v. N. Pac. Ry. Co., 8 I. C. C. R. 346. 361. Basing point system of the south disapproved. Board of Trade of 374 Acts Eegulating Commerce. [§ 50-4. Hampton v. N. C. & St. L. Ry. Co., 8 I. C. C. R. 503, 521. Order not enforced. Int. Com. Com. v. N. C. & St. L. Ry. Co., 120 Fed. 93-4. Storage is a service rendered and must be reason- able. Penn. Millers Asso. v. Philadelphia & R. Ry. Co., 8 I. C. C. R. 531. A rate long in existence prima facie reasonably high. Holmes & Co. v. So. Ry. Co., 8 I. C. C. R. 561. Must con- sider all circumstances affecting rates. i\Iayor and Council of Tifton V. L. & N. R. Co., 9 I. C. C. R. 160, 179. Reasons for a general advance not sufficient to show advance on particular commodity reasonable. National Hay Asso. v. Lake Shore etc. Ry. Co., 9 I. C. C. R. 261, 304, 305. Order not enforced. Int. Com. Com. v. Lake Shore etc. Ry. Co., 134 Fed. 942. Cost of service may legally produce a higher rate on less than car load than on ear load shipments. Business Men 's League of St. Louis v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 318, 358. Transportation is not controlled by the law of supply and demand and is not to sold to the highest bidder. Re Proposed Advances in Freight Rate, 9 I. C. C. R. 382. See also discussion of principles at pp. 395, 402, 405, 413. Presumption that a rate is reasonably high does not apply to a rate established bj^ the commission. Proctor & Gamble Co. v. Cincinnati, II. & D. Ry. Co., 9 I. C. C. R. 440. Order enforced. Int. Com. Com. v. Cincinnati, H. & D. Ry. Co., 146 Fed. 559, 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648. May compare a rate with a less rate for a longer haul. Mayor etc. of Wichita v. A. T. & S. F. Ry. Co., 9 I. C. C. R. 534, 552. May not refuse car load rating because consignee obtained title from different consignors. Buckeye Buggy Co. v. Cleveland etc. Ry. Co., 9 I. C. C. R. 620. Rates may differ in reverse direction. MacLoon v. Boston & M. R. Co., 9 I. C. C. R. 642, citing Dimcan V. A. T. & S. F. Ry. Co.. 6 I. C. C. R. 85, 4 I. C. R. 385. May require purchase of tickets in order to obtain a reduced fare. Cist V. Mich. Cent. R. Co., 10 I. C. C. R. 217. Rate according to valuation of fruit unreasonable and unjust. Georgia Peach Growers' Asso. v. Atlantic C. L. R. Co., 10 I. C. C. R. 255. Can not distinguish in rates on commodities because of method of loading. Blade Coal Co. v. B. & O. R. Co., 10 I. C. C. R. 226. Under the circumstances of this case, there should be no higher rate on cattle and hogs than on their products. Chicago Live Stock Ex. V. Chicago Great W. Ry. Co., 10 I. C. C. R. 428. Order not enforced. Int. Com. Com. v. Chicago Great W. Ry. Co., 141 Fed. 1003, 209 U. S. 108, 52 L. Ed. 705, 29 Sup. Ct. § 504.] Acts Regulating Commerce. 375 Effect of prosperity of shipper, increased cost of transportation, long continued rate and a combination to advance rates dis- cussed. Central Yellow Pine Asso. v. 111. Cent. R. Co., 10 I. C. C. R. 505. Order enforced. 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. Tift v. So. Ry. Co., 10 I. C. C. R. 548, 123 Fed. 789, 138 Fed. 753 ; So. Ry. Co. V. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709 ; Tift V. So. Ry. Co., 159 Fed. 555. Effect of long con- tinuance of rate and of financial condition of carrier considered. Re. Class and Commodity Rates St. Louis to Texas. 11 I. C. C. R. 238. Facts considered in arriving at a conclusion as to rea- sonableness of rates. Cattle Raisers' Asso. of Texas v. M. K. & T. Ry. Co., 11 I. C. C. R. 296. Classification must have refer- ence to general shipments and not to a special shipper. Planters Compress Co. v. Cleveland etc. Ry. Co., 11 I. C. C. R. 382. 606. Cost of service may not be ignored, but there are other matters of equal importance. Cannon v. ]M. & 0. R. Co., 11 I. C. C. R. 537. Volume of traffic an argument for comparatively low rates. Farrar v. So. Ry. Co., 11 I. C. C. R. 632, 640. Single rates should be considered as part of the whole system. Hastings Malting Co. v. Chicago, M. & St. P. Ry. Co., 11 I. C. C. R. 675. Expense of delivery should not increase the rate more than such expense. Society of American Florists v. United States Express Co., 12 I. C. C. R. 120. Existence of a lower rate in remote past no probative value. Enterprise jMfg. Co. v. Georgia R. Co., 12 I. C. C. R. 130. Distance cannot be made the sole factor in rate making. Wilhoit v. :\I. K. & T. Ry. Co., 12 I. C. C. R. 138. Revenue per ton mile over other routes and lines not conclusive. Dallas Freight Bureau v. Gulf etc. Ry. Co., 12 I. C. C. R. 223. Mere fact that an advance was the result of a combination not sufficient to condemn it. China & Japan Trading Co. v. Georgia R. Co., 12 I. C. C. R. 236; Mayor of Bristol v. Virginia & S. W. Ry. Co., 15 I. C. C. 543. Rate fixed by a state commission not binding on Interstate Commerce Commission. Hope Cotton Oil Co. V. Texas & Pac. Ry. Co., 12 I. C. C. R. 265. Grain a desirable traffic and entitled to low rate. Roswell Commercial Club V. A. T. & S. F. Ry. Co., 12 I. C. C. R. 339, 360, citing Mayor of Wichita V. A. T. & S. F. Ry. Co., 9 I. C. C. R. 534. Long existence of a rate not conclusive against the carrier, Warren Mfg. Co. V. So. Ry. Co., 12 I. C. C. R. 381. See Green Bay Bus. Men's Asso. v. B. & 0. R. Co., 15 I. C. C. R. 59. Cotton waste 376 Acts Regui^ating Commerce. [§ 504. should bear a lower rate tliau cotton goods. Riverside Mills v. So. Ry. Co., 12 I. C. C. R. 388. Expedited service charged for must be supplied. American Fruit Union v. Cincinnati, N. 0. & T. P. Ry. Co., 12 I. C. C. R. 411. Prohibitive rates cannot be established. Poor v. Chicago, B. & Q. Ry. Co., 12 I. C. C. R. 418. ]\Iere comparisons with other rates under different con- ditions not sufficient to establish unreasonableness of rates. Dallas Freight Bureau v. M. K. & T. Ry. Co., 12 I. C. C. R. 427. Rates unreasonable. Farmers Warehouse Co. v. L. & N. R. Co., 12 I. C. C. R. 457. May in some cases charge more where a line is composed of two roads than when it is composed of only one. Loup Creek Colliery Co. v. Va. Ry. Co., 12 I. C. C. R. 471. Can make no general ruling that through rates must not exceed the sum of the locals. Coffey ville Vitrified Brick & Tile Co. v. St. L. & S. F. R. Co., 12 I. C. C. R. 498. Not unlawful to refuse to carry at car load rates mixed cars of mineral water and beer. Milwaukee etc. Brewing Co. v. Chicago, SI. & St. P. Ry. Co., 13 I. C. C. R. 28. Ordinarily joint through rate should be lower than sum of the locals. Laning-Harris Coal & Grain Co. v. Mo. Pac. Ry. Co., 13 I. C. C. R. 154; Flaecus Glass Co. v. Cleveland etc. Ry. Co., 14 I. C. C. R. 333. Bamham etc. Dry Goods Co. V. Chicago R. T. Co., 14 I. C. C. R. 299; Gump v. B. & 0. R. Co., 14 I. C. C. R. 98 ; Payne-Gardner Co. v. L. & N. R. Co., 13 I. C. C. R. 638; Randolph Lumber Co. v. Seaboard A. L. Ry. Co., 14 I. C. C. R. 338 ; Sylvester v. Penn. R. Co., 14 I. C. C. R. 573. A railroad constructed for a special purpose is entitled to have that fact considered in making rates. Am. Asphalt Asso. V. Uintah Ry. Co., 13 I. C. C. R. 196. Capitalization and value of property employed of little value in fixing express rates. Kindel v. Adams Ex. Co., 13 I. C. C. R. 475, 485. Rule as to released rates. Re Released Rates. 13 I. C. C. R. 550. Im- proper to fix rates according to the use of a commodity. Ft. Smith Traffic Bureau v. St. L. & S. F. R. Co., 13 I. C. C. R. 651. Considerations involved in determining the reasonableness of rates. Thompson Lumber Co. v. 111. Cent. R. Co., 13 I. C. C. R. 657, 664. Voluntary reduction of rates by a carrier does not alone prove former rate unreasonable. Ottumwa Bridge Co. v. Chicago, M. & St. P. Ry. Co., 14 I. C. C. R. 121. Storage charges for a reasonable time in which to remove freight part of the transportation and must be reasonable. New York Hay Ex. Asso. V. Penn. R. Co., 14 I. C. C. R. 178. In exceptional cases § 504.] Acts Regulating Commerce. 377 the tliroiigli rate may exceed the sum of the locals. Randolph Lumber Co. v. Seaboard A. L. Ry. Co., 14 I. C. C. R. 338, citing Minneapolis etc. R. Co. v. i\Iinnesota, 186 IJ. S. 257, 262, 46 L. Ed. 1151; 22 Sup. Ct. 900. But see Lindsay Bros. v. Grand Rapids & I. Ry. Co., 15 I. C. C. R. 182; Michigan Buggy Co. v. Grand Rapids & I. Ry. Co., 15 I. C. C. R. 297. State rates though not binding on the Interstate Commission are valuable in determining the reasonableness of interstate rates. Corn Belt Meat Producers Asso. v. Chicago, B. & Q. Ry. Co., 14 I. C. C. R. 376. The question of the reasonableness of a rate one of fact and each case must stand upon its own record. Kansas City Hay Dealers Asso. v. Mo. Pae. Ry. Co., 14 I. C. C. R. 597; City of Spokane v. N. Pac. Ry. Co., 15 I. C. C. R. 376. Effect of in- creased cost of labor and materials. Shippers and Receivers Bu- reau of Newark v. New York, 0. & W. Ry. Co., 15 I. C. C. R. 264. Statute declaratory of common law. Int. Com. Cora. v. B. & 0. R. Co., 43 Fed. 37, 42, 3 I. C. R. 192. Affirmed. 145 U. S. 263, 36 L. Ed. 699, 4 I. C. R. 92; 12 Sup. Ct. 844; Tift v. So. Ry. Co., 123 Fed. 789, 792, 138 Fed. 753; So. Ry. Co. v. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. Cannot recover for unreasonable charges except under statutes, as the United States has no common law. Swift v. Philadelphia & R. R. Co., 58 Fed. 858, 64 Fed. 59. Disapproved. Kinnavey V. Terminal R. Asso. of St. Louis, 81 Fed. 802, 804; Western Union Tel. Co. v. Call Publishing Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561. In determining the question whether or not a rate is reasonable rigorous theoretical rules cannot be adopted — circumstances that must be considered stated. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409, 419 to 426. Cost of service of a particular movement cannot be found by taking the average cost of all movements of same commodity. Int. Com. Com. V. Lehigh V. R. Co., 74 Fed. 784. The word ''charges" used in section defined. Detroit, G. H. & M. Ry. v. Int. Com. Com., 74 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308, reversing 57 Fed. 1005, 4 I. C. R. 722. Affirmed. 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. Reasons for the act. Van Patten v. Chicago, M. & St. P. Ry. Co., 81 Fed. 545. Question whether or not rates are reasonable a relative one and may be determined by comparison. Int. Com. Com. v. East Tenn., V. & G. Ry. Co., 85 Fed. 107, enforcing order in 5 T. C. C. R. 546, 2 I. C. R. 798, 3 id. 106, 4 id. 213. Affirmed. East T. V. & G. Ry. Co. v. 378 Acts Regulating Commerce. [§ 505. Int. Com. Com., 99 Fed. 52. Reversed 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. ]\Iere fact of a greater charge for a shorter than a longer haul does not prove rate unreasonable. Int. Com. Com. V. Western & A. R. Co., 88 Fed. 186 ; Allen v. Oregon R. & Nav. Co., 98 Fed. 16; Int. Com. Com. v. Nashville, C. & St. L. Ry. Co., 120 Fed. 934. Refusing to enforce order, 8 I. C. C. R. 503. Section defined its purpose stated and a statement of what must be considered in determining the reasonableness of a rate. Int. Com. Com. v. Chicago G. AV. Ry. Co., 141 Fed. 1003. Affirmed. 209 U. S. 108 52 L. Ed. 705, Sup. Ct. . Where is stated the probative effect of a rate long in existence. Demur- rage charges must be reasonable and such charges governed by section. IMichie v. New York, N. H. & H. R. Co., 151 Fed. 694. The question of the reasonableness of a rate is a judicial one. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 33 L. Ed. 970, 981, 10 Sup. Ct. 462, 702. Under act prior to June 29, 1906, commission could determine the reasonableness of a par- ticular rate, but could not prescribe rates. Cincinnati, N. 0. & T. P. Ry. Co. V. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co.. 167 U. S. 479, 511, 42 L. Ed. 243, 17 Sup. Ct. 896. Af- firming 76 Fed. 183. Int. Com. Com. v. Ala. M. Ry. Co., 168 U. S. 144, 162, 42 L. Ed. 414, 18 Sup. Ct. 45. This power now specifically given by act June 29, 1906. Expenditures for perm- anent improvements should not be charged to current expenses. 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. § 505. Free service with certain exceptions prohibited and penalties prescribed. — Xo common carrier subject to the provi- sions of this act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law ; to ministers of religion, travel- ing secretaries of railroad Young ]\Ien's Christian Associations, inmates of hospitals and charitable and eleemosynary institu- tions, and persons exclusively engaged in charitable and eleemo- synary^ work ; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hos- pitals, and the necessary agents employed in such transporta- tion ; to inmates of the National Homes or State Homes for Dis- § 505.] Acts Regulating Commerce. 379 abled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge, and boards of managers of such homes ; to necessary care takers of live stock, poultry, and fruit ; to employees on sleeping cars, express cars, and to linemen of telegraph and tele- phone companies ; to railway mail service employees, postolSce inspectors, customs inspectors, and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, persons mjured in wrecks and physicians and nurses attending such per- sons: Provided, That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; nor to pro- hibit any common carrier from carrying. passengers free with the object of providing relief in cases of general epidemic, pesti- lence, or other calamitous visitation : Provided further, That the term "employees" as used in this paragraph shall include furloughed, pensioned, and superannuated employees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a person killed in the em- ploj'ment of a carrier and ex-employees traveling for the purpose of entering the service of any such common carrier ; and the term "families" as used in this paragraph shall include the fam- ilies of those persons named in this proviso, also the families of persons killed while in the service of any such common carrier. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty. Jurisdiction of offenses under this provision shall be the same as that provided for offenses in an act entitled "An act to further regulate commerce with foreign nations and among the states," approved February nineteenth, nineteen hundred and three, and any amendment thereof. Paragraph four of section one of act added by act of June 29, 1906, and as further amended by act April 13, 1908. Paragraph four of section one of the act of June 29, 1906, read as follows : "No connnon carrier subject to the provisions of this act 380 Acts Regulating Commerce. [§505. shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ininisters of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hos- pitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to in- digent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation ; to inmates of the Na- tional Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge and boards of managers of such homes; to necessary care takers of live stock, poultry and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to rail- way mail service employees, postoffice inspectors, customs in- spectors and immigration inspectors; to newsboys on trains, baggage agents; witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons : Pro- vided, That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families ; nor to prohibit any common carrier from carrying passengers free with the object of provid- ing relief in cases of general epidemic, pestilence, or other calam- itous visitation. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dol- lars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall be subject to a like penalty. Juris- diction of offenses under this provision shall be the same as that provided for offenses in an act entitled "An act to further regu- late commerce with foreign nations and among the states," ap- proved February nineteenth, nineteen hundred and three and any amendment thereof. The original act did not expressly prohibit free transporta- tion, and it was only w^hen such transportation constituted dis- § 506.] Acts Kegulating Commerce. 381 crimination and was not in the exception contained in section 22 that it was illegal. Ex parte Koehler, 31 Fed. 315. Re Charge to Grand Jury, 66 Fed. 146. Evils of free transportation. First Annual Report of Int. Com. Com., 1 I. C. R. 650, 654. Not to be granted for influence. Slater v. N. Pac. R. Co., 2 I. C. C. R. 359, 2 I. C. R. 243; Harvey V. L. & N. R. Co., 5 I. C. C. R. 153, 3 I. C. R. 793. Re Carriage of Persons Free. 5 I. C. C..R. 69, 3 I. C. R. 717. Land and im- migration agents not entitled to free transportation. Re Com- plaint of Illinois Central R. Co., 12 I. C. C. R. 7. Certain em- ployees of telegraph companies may receive free or reduced transportation. Re Railroad Telegraph Companies. 12 I. C. C. R. 10. Newspaper employees whose duties are to assort papers on special newspaper trains not entitled to free transportation. Re Free Transportation to Newspaper Employees. 12 I. C. C. R. 15. Not allowed to baggage express companies. Re Ex- change of Free Transportation Between Railroads and Baggage Express Companies. 12 I. C. C. R. 39. Rule between express and railroad companies. Re Contracts of Express Companies for Free Transportation. 16 I. C. C. R. 246. See paragraphs 62 to 67 of Tariff Circular 15-A, Digest of Decisions by Peirce, 722-725. The commission holds that ministers engaged in other than pastoral work may legally be accorded special transporta- tion privileges. Re Passes to Clergjnnen. 15 I. C. C. R. 45. Act does not affect valid subsisting contracts for free transportation. :\Iottley V. L. & N. R. Co., 150 Fed. 406. Kurry v. Kansas & C. P. Ry., 58 Kansas 6, 48 Pac. 579. Express franks illegal, even to officers and employees. United States v. "Wells Fargo Express Co., 161 Fed. 606 ; American Ex. Co. v. United States, 212 U. S. 522, 53 L. Ed. , 29 Sup. Ct. . Contract to fur- nish transportation for advertising illegal. United States v. Chicago etc. Ry. Co., 163 Fed. ]14. § 506. Railroad companies prohibited from transporting com- modities in which they are interested with certain exceptions. — From and after jMay first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any state, territory or the District of Columbia, to any other state, territory, or the District of Columbia, or to any foreign country, any article or commodity, other tluin timber ?ind tlie manufac- tured products thereof, manufnctiifcd. iniiicd. ov produced by it, or under i1s ;iutliority, or wbidi i1 may own in whole, or in part. 382 Acts Kegulating Commerce. [§ 507. or in wliieli it may have any interest direct or indirect except sucli articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier. Paragraph five, section one, of act as added by act June 29, 1906. Unconstitutional. United States v. Delaware & H, Co,, 164 Fed. 215, 22d Annual Keport Interstate Com. Com. (1908) 17. Circuit court reversed and section held valid as construed by Supreme Court. Ignited States Vj Delaware & H. Co,, 213 U, S, 366, 53 L. Ed, 29 Sup. Ct. Does not apply to intrastate ship- ment. Central Trust Co. v, Pittsburg etc, R, Co., 101 N, Y. Sup, 837, 114 App. Div, 907, § 507, Terms under which switch connections shall be made. — Any common carrier subject to the provisions of this act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall con- struct, maintain and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of it^ ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application there- for in writing by any shipper, such shipper may make complaint to the commission, as provided in section thirteen of this act, and the commission shall hear and investigate the same, and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor and the com- mission may make an order, as provided in section fifteen of this act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter provided for the enforcement ot all other orders by the commission, other than orders for the payment of money. Paragraph six, section one, of act as added by act of June 29, 1906. Under paragraph 2, section 3, of this act prior to the amend- ment of June 29, 1906, switch connecticms could be ordered when the failure to do so constituted discrimination. Red Rock Fuel § 508.] ■ Acts Regulating Commerce. 383 Co. V. Bait. & 0. R. Co., 11 I. C. C. R. 438. Written application must be made to give the commission jurisdiction. Barden & S. V. Lehigh V. R. Co., 12 I. C. C. R. 193. Connection ordered. McRae T. Ry. v. So. Ry. Co., 12 I. C. C. R. 270, 545. Carriers should not repay shippers for switch connections with transpor- tation. Weleetka Light & Water Co. v. Ft. Smith & W. R. Co., 12 I. C. C. R. 503. Section discussed and construed. Rahway Valley R. Co. v. Delaware, L. & W. R. Co., 14 I. C. C. R. 191 ; :\rcCormick v. Chicago, B. & Q. R. Co., 14 I. C. C. R. 611. State court may in absence of action by commission compel switch con- nection. Mo. Pac. R. Co. V. Larabee Flour Mills Co., 211 U. S. 612, 53 L. Ed. , Sup. Ct. . See also Wisconsin etc. R. Co. V. Jacobson. 179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115. § 508. Definition and prohibition of unjust discrimination. — That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, draw- back, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of pas- sengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under sub- stantially similar circumstances anci conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. Section 2 of the original act. Modeled on § 90 English Act 1845. The Laws of Railway, by Browne & Theobald, 312, 313; Halsbury's Laws of England, Vol. 4, p. 74. Railroad Commissioners of Georgia v. Clyde Steamship Co., 5 I. C. C. R. 324, 4 I. C. R. 121, 140. English act is as follows: ''And whereas it is expedient tliat the compaii,y should he enabled to vary the tolls upon the railway 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 or unfairly creating a monopoly, either in the hands of the com- I)any or of particular pMrtics: it sluill be lawful, therefore, for the company, subject to the provisions jind limitiitions herein and in tlie special act eontnined IVoni lime to time to alter or vary 384 Acts Regulating Commerce. [§ 508. 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 conveyed or propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same circum- stances; 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 rail- way. ' ' Not violated by failure to allow same mileage to private car companies as to connecting carriers. Burton Stock Car Co. v. C. B. & Q. R. Co., 1 I. C. C. R. 132, 1 I. C. R. 329. Discrimina- tion to allow large shippers a discount. Providence Coal Co. v. Providence & W. R. Co., 1 I. C. C. R. 107, 1 I. C. R. 316, 363. Mileage rates must be open to all. Larrison v. Chicago etc. R, Co., 1 I. C. C. R. 147, 1 I. C. R. 369. Uniform and general regu- lations not illegal though more favorable to some than to other localities. Crews v. Richmond & D. R. Co., 1 I. C. C. R. 401, 1 I. C. R. 703, 712. Excursion rates legal. Associated AVhole- sale Grocers v. Mo. Pac. R. Co., 1 I. C. C. R. 156, 1 I. C. R. 321, 393. Low rates settlers' tickets must be open to all classes, ^mith V. N. P. R. Co., 1 I. C. C. R. 208, I. C. R. 611 ; Elvey v. 111. Cent. R. Co., 3 I. C. C. R. 652, 2 I. C. R. 804. Rates not un- reasonably high may be illegal because discriminatory. Ray- mond v. Chi., M. & St. P. R. Co., 1 I. C. C. R. 230, 1 I. C. R. 474, 627. ''Substantially similar circumstances and conditions" defined. Business Men's Asso. v. Chicago, St. Paul, M. & 0. R. Co.. 2 I. C. C. R. 52, 2 I. C. R. 41. Shipments of oil in barrels and in tanks should be at the same rate. Rice v. L. & N. R. Co., 1 I. C. C. R. 503. 1 I. C. R. 354. 376, 443, 722 ; Schofield v. Lake etc. R. Co., 1 I. C. R. 593, 2 I. C. C. R. 90, 2 I. C. R. 67 ; Rice v. Western New York etc. R. Co., 4 I. C. C. R. 131, 2 I. C. R. 298, 499; 3 id. 162; Rice v. Cincinnati etc. R. Co., 5 I. C. C. R. 193, 3 I. C. R. 841 ; Independent Refiners Asso. v. Penn. R. Co., 6 I. C. C. R. 52, 4 I. C. R. 162, 369. 5 L C. C. R. 415, 2 I. C. R. 294, 296, 4 I. C. R. 162. May classify immigrants for special rates. Savery v. New York Cent. etc. R. Co., 2 I. C. C. R. 338, 1 I. C. R. 695, 2 I. C. R. 210. Free transportation to obtain the in- § 508.] Acts Regulating Commerce. 385 Alienee of the holder in getting business illegal. Slater v. N. Pac. E. Co., 2 I. C. C. R. 359, 2 I. C. R. 32, 243. Mines in the same general territory may be grouped and take the same rate. Rend v. Chi. & N. W. R. Co., 1 I. C. R. 793, 812, 2 I. C. C. R. 540, 2 I. C. R. 313 ; Coxe v. Lehigh V. R. Co., 4 I. C. C. R. 535, 2 I. C. R. 195, 229, 3 id. 460. Rates must be relatively fair in substance and in fact. Detroit Board of Trade v. Grand Trunk R. Co., 2 I. C. C. R. 315, 1 I. C. R. 699, 701, 2 I. C. R. 199. A carrier's percentage of a through rate may be less than the local charge for the same haul. Chamber of Commerce of jMilwaukee V. Flint etc. R. Co., 2 I. C. C. R. 553, 1 I. C. R. 774, 792, 2 I. C. R. 393; Lippman v. 111. Cent. R. Co., 2 I. C. C. R. 584, 2 I. C. R. 414; New Orleans Cotton Exchange v. 111. Cent. R. Co., 3 I. C. C. R. 534, 2 I. C. R. 460, 777 ; New York, New Haven etc. R. Co. V. Piatt, 7 I. C. C. R. 323. Mileage, excursion and com- mutation tickets must be offered impartially to all. Re Passen- ger Tariffs. 2 I. C. C. R. 649, 2 I. C. R. 445. Export rates ten cents per hundred less than the local rates held illegal. New York Produce Exchange v. New York etc. R. Co., 3 I. C. C. R. 137, 2 I. C. R. 13, 28, 553. See Texas etc. R. Co. v. Int. Com. Com. 162, U. S. 197, 5 I. C. R. 405, 40 L. Ed. 940, 16 Sup. Ct. 666. Through rates are not required to be made on a mileage basis. McMorran v. Grand Trunk R. Co., 3 I. C. C. R. 252, 2 I. C. R. 14, 19, 604. A through rate may be less than the sum of the locals. Chicago, Rock Island & Pacific R. Co. v. Chicago & Alton R. Co., 3 I. C. C. R. 450, 2 I. C. R. 581, 721. See also § 504 supra. Party rates less than individual rates illegal. Pittsburg etc. R. Co. v. B. & 0. R. Co., 3 I. C. C. R. 465, 2 I. C. R. 579, 720. Commission not sustained by courts. Int. Com. Com. V. B. & 0. R. Co., 43 Fed. 37, 3 I. C. R. 192, 145 U. S. 263, 36 L. Ed. 699, 4 I. C. R. 92, 12 Sup. Ct. 844. Carriers may make exclusive contracts for sleeping cars. Worcester Excursion Co. V. Penn. R. Co., 3 I. C. C. R. 577, 1 I. C. R. 811, 2 id. 12, 792. ]\Iere quantity of shipments not alone sufficient to affect class- ification. 4 I. C. C. R. 212, 2 I. C. R. 625, 3 id. 257. Imported goods are not entitled to any preference rate from the port of entry to destination over domestic goods. New York Board of Trade etc. v. Penn. R. Co., 4 I. C. C. R. 447, 2 I. C. R. 660, 734, 755, 800. 3 id. 417. See Texas & Pac. R. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940. 16 Sup. Ct. 666, 5 I. C. R. 405. Classification niav not be used to affect diseriininalion. Coxe v. 386 Acts Eegulating Commerce. [§ 508. Lehigli V. R. Co., 4 I. C. C. R. 535, 2 I. C. R. 195, 229, 3 id. 460. Discrimination to transport free, officials and persons of emi- nence. Re Carriage of Persons Free. 3 T. C. R. 612, 686, 717; Harvey v. L. & N. R. Co., 5 I. C. C. R. 153, 2 I. C. R. 662, 3 id. 793. Hypothetical weights must not be used to discriminate. Rice V. Cincinnati etc. R. Co., 5 I. C. C. R. 193, 3 I. C. R. 841. Section compared with English act. Railroad Com. of Ga., Trammell et al. v. Clyde S. S. Co., 5 I. C. C. R. 324, 4 I. C. R. 120, 140. Order not enforced. Int. Com. Com. v. Western & A. R. Co., 88 Fed. 186, 93 Fed. 83, 35 C. C. A. 226, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Lower rates on coal to spe- cial manufacturers illegal, rates should not vary at different sea- sons of the year. Re Alleged Unlawful Charges for Transporta- tion of Coal by L. & N. R. Co. 5 I. C. C. R. 466, 4 I. C. R. 157. Illegal to discriminate in the privileges relating to delivery of freight. Phelps v. Texas & Pac. R. Co., 6 I. C. C. R. 36, 4 I. C. R. 44, 104, 363. Not illegal to make a different rate on freight moving in opposite directions over same line. Business motive of shipper cannot be considered. Duncan v. A. T. & S. F. R. Co., et al., same v. So. Pac. Co. et al., 6 I. C. C. R. 85, 3 I. C. R. 256, 4 I. C. R. 385; MacLoon v. Boston & M. R. Co., 9 I. C. C. R. 642. ]\Iay make excursion rates different at different times. Cator V. So. Pac. Co., 6 I. C. C. R. 113, 4 I. C. R. 397. A car- rier cannot legally use a development company in which it holds all the stock to purchase and ship commodities charging nothing therefor. Re Alleged Unlawful Rates and Practices in Trans- portation of Grain. 7 I. C. C. R. 33. Common ownership of a carrier company and a land company will not prevent the land company from buying tickets from the carrier at full prices and selling them to guests of its hotel at half price. Wilson v. Rock Creek etc. Ry. Co., 7 1. C. C. R. 83. Different rate by cwt. on train loads and car loads discriminatory. Paine v. Lehigh Val- ley etc. R. Co., 7 I. C. C. R. 218. Reshipping at balance of a through rate illegal. Re Alleged LTnlawful Rates and Practices in the Transportation of Grain and Grain Products. 7 I. C. C. R. 240. Re Rates and Practices of the M. & 0. R. Co. 9 I. C. C. R. 373; Cannon Falls etc. Co. v. Chicago G. W. R. Co., 10 I. C. C. R. 650. See question suggested but not decided. Com- mercial Club of Omaha v. Chicago & R. I. R. Co., 6 I. C. C. R. 647; Duncan et al. v. N. C. & St. L. R. Co., 16 I. C. C. R. 590. Cannot divide rates with wagon carriers. Carey v. Eureka § 508.] Acts Regulating Commerce. 387 Springs R. Co., 7 I. C. C. R. 286. Terminal charges need not be exacted on all products alike nor at all markets. Cattle Raisers' Asso. of Texas v. Ft. Worth etc. R. Co., 7 I. C. C. R. 513, 555-a. Commission's order not enforced. 98 Fed. 173, 103 id. 249, 43 C. C. A. 209, 186 U. S. 320, 46 L. Ed. 1182; 22 Sup. Ct. 824. Storage charges as well as other rules and regulations must not he discriminatory American Warehousemen's Asso. v. 111. Cent. R. Co., 7 I. C. C. R. 556. Goods exported may move to ports at a less rate than those consumed at the port. Kemble v. Boston etc. R. Co., 8 I. C. C. R. 110. A difference in the rates on private cars may exist when the use thereof is different. Carr v. N. Pac. R. Co., 9 I. C. C. R. 1. The rule that as distance increases the rate per ton mile shall decrease is not required by the statute and is subject to exceptions and qualifications. Hilton Lumber Co. V. Wilmington etc. R. Co.. 9 I. C. C. R. 17. To entitle a shipper to a car load rating, the shipment should be from one consignor to one consignee under one bill of lading, but where the consignee is the owner, it is immaterial whether his title was obtained from one or more persons. Whether a carrier can deny car load rate to forwarding agent not decided. Buckeye Buggy Co. V. Cleveland etc. R. Co., 9 I. C. C. R. 620; Bell Co. v. Balti- more etc. R., 9 I. C. C. R. 632. "Tap line" divisions or a division of a through rate to a short line, such line being a common car- rier, is legal. Central Yellow Pine Asso. v. Vicksburg S. & P. R. Co., 10 I. C. C. R. 193. See also Re Transportation of Salt, 10 I. C. C. R. 148. Ownership of the terminal or ''tap line" immaterial, but the division must be reasonable. Re Divisions of Joint Rates and Other Allowances to Terminal Roads. 10 I. C. C. R. 385. Where ''tap line" not a common carrier, allowance illegal. Central Yellow Pine Asso. v. 111. Cent. R. Co., 10 I. C. C. R. 505, 506. May make the charge on a minimum of 100 pounds at the rate taken by the particular commodity. Wrigley v. Cleveland etc. R. Co., 10 I. C. C. R. 412. "Under substantially similar circumstances and conditions" defined and held that joint through rates less than the sum of the locals must be open to all. Capital City Gas Co. v. Central Vermont etc. R. Co., 11 I. C. C. R. 104. Circumstances and conditions substantially dissimilar. City Gas Co. v. B. & 0. R. Co., 11 I. C. C. R. 371, 379. Cotton packed by the round l)ale process not entitled to a different rate than that packed in square bales. Planters Com- press Co. v. Cleveland etc. R. Co., 11 I. C. C. R. 382. A recon- 388 Acts Regulating Commerce. [§508. signment rate may be liiglier than the carrier 'sproportion of the tlirough rate. St. Louis Hay & Grain Co. v. 111. Cent. R. Co., n I. C. C. R. 486, 496; same v. M. & 0. R. Co., id. 101. There should be miiformity in the relation of rates on commodities differently packed. Cannon v. M. & 0. R. Co., 11 I. C. C. R. 537. Carrier cannot charge more for transferring freight brought from another line than for that originating on its own line. Blackwell l\Iilling & Elevator Co. v. IM. K. & T. Ry. Co., 12 I. C. C. R. 23; Ponca City Milling Co. v. M. K. & T. Ry. Co., 12 I. C. C. R. 26. Party rate tickets must be open to all. Re Party Rate Tickets, 12 I. C. C. R. 95. A car load of freight though owned by different persons and known as "bulked ship- ments" when shipped under one bill of lading is entitled to the regular car load rate. California Commercial Asso. v. Wells Fargo & Co., 14 I. C. C. R. 422 ; Export Shipping Co. v. Wabash R. Co., 14 I. C. C. R. 437. Order not enforced. Delaware, L. & W. R. Co. V. Int. Com. Com., 166 Fed. 499. Section two in effect prohibits free passes except for the classes mentioned in section twenty-two. Ex parte Koehler, 31 Fed. 315, 12 Sawy. 446. Re Charge to Grand Jury, 66 Fed. 146. Unless pass is used no crime is committed. United States v. IMathews, 68 Fed. 880. Contract for rates based upon the amount of shipments void. Burlington, C. R. & N. R. Co. v. Northwestern Fuel Co., 31 Fed. 652. (Reversed but this question not discussed. Tozer v. United States, 52 Fed. 917) John Hays & Co. v. Penn. Co., 12 Fed. 309. Followed citing English cases. Int. Com. Com. v. Tex. & Pac. Ry. Co., 52 Fed. 187, 190; Kinsley v. Buffalo, N. Y. & P. R. Co., 37 Fed. 181 ; United States v. Tozer, 39 Fed. 369, 904. Only unjust, undue or unreasonable discrimination for- bidden. Kentuelvy & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 624. See 2 I. C. C. R. 162, 2 I. C. R. 102. Not unlawful for carrier to compress cotton en route when privilege open to all. Cowan v. Bond, 39 Fed. 54. Not discriminative to decline to use a particular live stock car. United States v. Delaware, L. & W. R. Co.. 40 Fed. 101. Party rate tickets at less rate than for a single ticket legal. Int. Com. Com. v. B. & 0. R. Co., 43 Fed. 37, 46. Affirmed. 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. ]\Iay make a difference in rates for limited and unlimited tickets. United States v. Eagan, 47 Fed. 112. Illegal to charge less on freight from Liverpool than from New York, New Orleans, etc., to San Francisco. Int. Com. Com. v. Tex. & Pac. Ry. Co., 52 § 508.] Acts Regulating Commerce. 389 Fed. 187. Affirmed, 57 Fed. 918, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408. Reversed, Tex. & Pac. Ry. Co. v. lut. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. That cotton reached Mobile by boat is no reason for charging more on a ship- ment to New Orleans than was charged on cotton brought to IMobile by other carriers. Bigbee & Warrior Rivers Packet Co. V. Mobile & Ohio R. Co., 60 Fed. 545. Rebate to one not a crime imless refused to others. United States v. Hanley, 71 Fed. 672. No rigid theoretical rules can be adopted to determine the ques- tion of discrimination. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409. Cannot charge full local rate on freight delivered to one carrier, when the proportion of the through rate is charged to another. Augusta S. R. Co. v. Wrightsville & T. R. Co., 74 Fed. 522. Purpose of section discussed. Int. Com. Com. v. Alabama M. Ry. Co., 74 Fed. 715, 21 C. C. A. 51, 41 U. S. App. 453, 5 I. C. R. 685. Affirming 69 Fed. 227. Affirmed, 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. Cartage is separated from the general charges referred to in sections one, two, three and four of act. Detroit etc. Ry. Co. v. Int. Com. Com., 74 Fed. 803, 815, 21 C. C. A. 103, 43 U. S. App. 308. Reversing 57 Fed. 1005, 4 I. C. R. 722. Affirmed, 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. What should be stated in a petition to recover damages for discrimination. Kinnavey v. Terminal R. Asso. of St. Louis, 81 Fed. 802. Section deals with preferences be- tween shippers and not between localities. Int. Cora. Com. v. Western & A. R. Co., 88 Fed. 186. Affirmed, 93 Fed. 83, 35 C. C. A. 217, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512, refusing to enforce order in Railroad Com. of Ga. v. Clyde Line S. S. Co., 5 I. C. C. R. 324, 4 I. C. R. 120. Mere offer of discrimination not an offense. Lehigh Valley R. Co. v. Rainey, 112 Fed. 487, re- fusing motion for new trial. See 99 Fed. 596. Carriers not required to give same rate to forwarding agents as to owners of car load freight. Lundquist v. Grand Trunk W. Ry. Co., 121 Fed. 915; Delaware, L. & W. R. Co. v. Int. Com. Com., 166 Fed. 499. Contra under English and Canadian Act. Packed Par- eels Case. Great W. R. AV. Co. v. Sutton L. R., 4 II. L. 226, I\IacMurchy & Denison's Canadian Ry. Law 496. Cannot dis- criminate in favor of government in rates to its soldiers. United States V. Chicago & N. W. Ry. Co.. 127 Fed. 785. 62 C. C. A. 465. A carrier may in good faith l)uy a commodity and trans- |)()f1 it ;it less than the regular rate. Int. Com. Com. v. Chesa- 390 Acts Regulating Commerce. [§ 508. peake & 0. Ry. Co., 128 Fed. 59. Affirmed same ease, but this proposition disapproved, 200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272. Classification must be without discrimination. Int. Com. Com. v. Cincinnati, II. & D. Ry. Co., 146 Fed. 559. Affirm- ed. Cincinnati, II. & I). Ry. Co. v. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648. Reconsignment rate is vio- lation of section. St. Louis Hay & Grain Co. v. So. Ry. Co., 149 Fed. 609. Affirmed. So. Ry. Co. v. St. Louis Hay & Grain Co., 153 Fed. 728. C. C. A. Reversed, 214 U. S. 297, 53 L. Ed. 29 Sup. Ct. "Discrimination" defined. United States v. Wells Fargo Ex. Co., 161 Fed. 606. Discrimination illegal at common law. Atchison, T. & S. F. R. Co. v. Denver & N. D. R. Co., 110 U. S. 667, 28 L. Ed. 291, 4 Sup. Ct. 185. Service for local haul not the same as for through haul covering the local as well as additional haul. Union Pacific Ry. Co. v. United States, 117 U. S. 355, 29 L. Ed. 920, 6 Sup. Ct. 772. The discrimination must be unjust, undue or unreasonable, though a rate reasonable under section one may violate sections two and three. Int. Com. Com. V. Baltimore & 0. R. Co., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, affirming 43 Fed. 37. Carriers not released from liability to innocent parties to a bill of lading because a rebate is allowed. Merchants Cotton Compress and Storage Co. v. Ins. Co. of North America, 151 U. S. 368, 38 L. Ed. 195, 206, 14 Sup. Ct. 367. Ocean competition may make a different circumstance. Section discussed. Statement made that it was modeled on sec- tion 90, English Act of 1845, and English cases cited. Tex. & Pac. R. Co. V. Int. Com. Com., 162 U. S. 197, 213, 219, 222, 224, 225, 40 L. Ed. 940, 945, 947, 948, 949, 16 Sup. Ct. 666. Revers- ing 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408. Prior to the act to regulate commerce recovery could not be had for discrimination unless the charge was unreasonable. Par- sons V. Chicago & N. W. R. Co., 157 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887. Allowance of cartage to one and not to all violates section. Wight v. United States, 167 U. S. 512, 42 L. Ed. 258, 17 Sup. Ct. 822. ''Under substantially similar circum- stances and conditions" refers to matter of carriage and does not include competition, id. While this is true of section two, it is not true of section four. Int. Com. Com. v. Alabama M. Ry. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516; Int. Com. Com. v. Clyde S. S. Co., 181 U. S. § 509.] Acts Eegulating Commerce. 391 29, 45 L. Ed. 729, 21 Sup. Ct. 512. See as to effect of free cart- age on section four. Int. Com. Com. v. Detroit etc. Ry. Co., 167 U. S. 633, 42 L. Ed. 306, 11 Sup. Ct. 986. Carrier cannot escape from provisions of section by electing to be a dealer in commodities shipped. New York, N. H. & H. R. Co. v. Int. Com. Com., 200 U. S. 361, 391, 392, 50 L. Ed. 515, 521, 26 Sup. Ct. 272. Commission has power to order carriers to cease from vio- lating act by discriminating between persons or localities. Cin- cinnati, H. & D. Ry. Co. V. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648. § 509. Undue and unreasonable preference prohibited. — That it shall be unlawful for any common carrier subject to the provi- sions of this act to make or give any undue or unreasonable pref- erence or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular de- scription of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. First paragraph of section 3 of the original act. This provision substantially follows language in section two of English Traffic Act of 1854, and section eleven of the act of 1873. The English act provides : Every railway company, canal company, and railway and canal company, shall, according to their respective powers, af- ford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and no such company shall make or give any undue or unrea- sonable preference or advantage to or in favour 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 working railways or canals which form part of a continuous line of rail- way or canal or railway and canal communication, or which have the terminus, statidii. or- wharf of the one near the ternn'nus, station, (jr wharf of the other, shall afford all due and reasonable 892 Acts Regulating Commerce. [§509. facilities for receiving and forwarding all the traffic arriving by- one of such railways or canals by the other, without any imrea- sonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no ob- struction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several com- panies, be at all times afforded to the public in that behalf. Browne & Theobald's Railway Laws, 405, Ilalsbury's Laws of England, Vol. 4, p. 76. Religious teachers in view of section 2 of act may receive spe- cial reduced rates. Re Religious Teachers. 1 I. C. C. R. 21. Discount may not be given large shippers. Providence Coal Co. V. Providence etc. R. Co., 1 I. C. C. R. ]07, 1 I. C. R. 316. 363. A carrier operating parallel lines should furnish corresponding advantages to each line. Boards of Trade Union v. Chicago etc. R. Co., 1 I. C. C. R. 215, 1 I. C. R. 608. Undue preference il- legal although not wholly voluntary. Raymond v. Chicago, M. & St. P. R. Co., 1 I. C. C. R. 230, 1 I. C. R. 627. Unreasonable preference illegal whether accomplished by device or directly. •Scofield V. Lake etc. R. Co., 2 I. C. C. R. 90, 1 I. C. R. 593, 2 id. 67. Subscriptions to build a railroad no legal reason to affect rates favorably to subscribing territory. Lincoln Board of Trade V. U. P. R. Co., 2 I. C. C. R. 147, 2 I. C. R. 95. Uniform rate on milk from all stations within two hundred miles of New York not unjust discrimination. Howell v. New York etc. R. Co., 2 I. C. C. R. 272, 2 I. C. R. 162. Rule discussed for making rates between communities in accord with section. Detroit Board of Trade v. Grand Trunk Ry., 2 I. C. C. R. 315, 2 I. C. R. 199. Rates should be known and announced publicly as to all places and persons. Re Tariffs Transcontinental Lines, 2 I. C. C. R. 324, 2 1. C. R. 203. Rate per ton mile may vary with distance. New Orleans Cotton Exchange v. Cincinnati etc. R. Co., 2 I. C. C. R. 375, 2 I. C. R. 289 ; same v. 111. Cent. R. Co., 3 I. C. C. R. 534, 2 L C. R. 777. Circumstances may be so different as to justify deviations from rule of equal mileage on different branches of the same road, but burden to show such circum- stances on the carrier. Logan v. Chicago & N. W. R. Co., 2 I. C. C. R. 604; 2 I. C. R. 431. Through rates not required to be made on a mileage basis. MclMorran v. Grand Trunk R. Co., 3 § 509.] Acts Regulating Commerce. 393 I. C. C. R. 252 ; 2 I. C. R. 604. Separation of races legal but accommodations must be equal. Heard v. Ga. R. Co., 3 I. C. C. R. 111. 2 I. C. R. 508; see same case. 1 I. C. C. R. 428. 1 I. C. R. 719; Cozartt v. So. Ry. Co.. 16 I. C. C. R. 226; Gaines v. Seaboard A. L. Ry., 16 I. C. C. R. 471. May make a reasonable rate between C. L. and L. C. L. shipments. Car load ratings should be ecpial, whether one or more consignors or consignees. Thurber v. New York etc. R. Co., 3 I. C. C. R. 473, 2 I. C. R. 742. Special tariffs for emigrants only illegal. Elvey v. 111. Cent. R. Co., 3 I. C. C. R. 652, 2 I. c' R. 804. Should be no distinction between the rates and allowances on oil shipped in tank cars and in barrels. Rice v. Western N. Y. etc. R. Co., 4 I. C. C. R. 131, 3 I. C. R. 162; see also 5 I. C. C. R. 193, 3 I. C. R. 841, 6 I. C. C. R. 455. Discrimination is not legalized be- cause large investments have been made inider it. Board of Trade of Chicago v. Chicago & Alton R. Co., 4 I. C. C. R. 158, 3 I. C. R. 233. Mere quantity, other than a recognized unit of carriage, no reason for difference in rate. Harvard v. Penn. Co., 4 I. C. C. R. 212. 3 I. C. R. 257. A differential between wheat and wheat flour long maintained may be continued. Kauffman V. Mo. Pac. R. Co., 4 I. C. C. R. 417, 3 I. C. R. 400. Rates should be relatively just both as to localities and different kinds of traffic. Squire v. Mich Cent. R. Co., 4 I. C. C. R. 611, 3 I. C. R. 515. Water competition when freight can move over the longer distance point justifies a less rate for the longer than the shorter haul. James & Mayer Buggy Co. v. Cincinnati etc. R. Co., 4 I. C. C. R. 744, 3 I. C. R. 682. Order not enforced. Int. Com. Co. V. Cincinnati etc. R. Co., 56 Fed. 925. Circuit court reversed. 13 U. S. App. 720, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. Section compared with English act. Railroad Com. of Ga. Trammel et al. v. Clyde S. S. Co., 5 I. C. C. R. 324, 4 I. C. R. 120, 140. Order not enforced. Int. Com. Com. v. Western & A. R. Co., 88 Fed. 186, 93 Fed. 83, 35 C. C. A. 226, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Rates on similar commodities should not greatly differ. ^Michigan Box Co. v. Flint etc. R. Co., 6 I. C. C. R. 335. "Unreasonable," "unjust" and similar terms used in section defined. Daniels v. Chicago etc. R. Co., 6 I. C. C. R. 458. Excess of man'ufactnring cost at one point over another should not affect the relativ(! rates. Colo- rado Fuel & Iron Co. v. So. Pac. Co., 6 I. C. C. R. 488. Order not enforced. So. Pac. Co. v. Fuel Co., 101 Fed. 779, 42 C. C. 39-4 Acts Regulating CoRniERCE. [§509. A. 12. Terms used in section discussed and held to imply com- parison. Page V. Delaware etc. R. Co., 6 I. C. C. R. 548 ; see 6 I. C. C. R.' 148, 4 I. C. R. 425; Int. Com. Com. v. Delaware etc. R. Co., 64 Fed. 723. Rates from Texas common points to Wich- ita higher than to Kansas City illegal. Johnston-Larimer Dry Goods Co. V. A. T. & S. F. R. Co., 6 I. C. C. R. 568; see also 10 I. C. C. R. 460, 12 I. C. C. R. 47, 188. Should not disregard distances and natural advantages. Commercial Club of Omaha V. Chicago & R. I. R. Co., 6 I. C. C. R. 647. Blanket rate to New York on milk from towns of different distances held viola- tive of this section though group rates based on groups reason- ably arranged legal. IMilk Producers Protective Asso. v. Dela- ware etc. R. Co., 7 I. C. C. R. 92, 164 and cases cited. "A city is entitled to the benefit of its location." Freight Bureau of Cincinnati v. C. N. 0. & T. P. R. Co., 7 I. C. C. R. 180, 189. The law permits railroads to meet, not to extinguish, water competition. Brewer v. L. & N. R. Co., 7 I. C. C. R. 224. Order not enforced. 84 Fed. 258. Undue preference means preference that is appreciable and certain. Contract for rates not enforced. Commercial Club of Omaha v. Chicago & N. W. R. Co., 7 I. C. C. R. 386; see also Rheinlander Paper Co. v. N. Pae. R. Co., 13 I. C. C. R. 633. Higher rates from New Orleans to La Grange than to points similar in size and beyond La Grange illegal. Callaway v. L. & N. R. Co., 7 I. C. C. R. 431. Order enforced by Circuit Court, 102 Fed. 709. Reversed in Supreme Court. Int. Com. Com. v. L. & N. R. Co. (LaGrange Case) 190 U. S. 273, 42 L. Ed. 1047, 23 Sup. -Ct. 687. Differentials held illegal. Chamber of Commerce of Milwaukee v. Chicago, M. & St. P. R. Co., 7 I. C. C. R. 481, 511. Terminal charges constituting a violation of section. Cattle Raisers' Asso. v. Ft. AV. & D. City R. Co., 7 I. C. C. R. 555-a. Order not enforced. 98 Fed. 173, 103 Fed. 249, 43 C. C. A. 209, 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824. Differentials to Baltimore and Philadelphia under New York legal. New York Produce Ex. v. B. & 0. R. Co., 7 I. C. C. R. 612, 658, 661, 667. Whether or not competition is such as to relieve carriers from restraints of section a question of fact. Phillips. Bailey & Co. v. L. & N. R. Co., 8 I. C. C. R. 93. Dis- crimination held to violate section. Re Alleged Violations by St. L. & S. F. Ry. Co. 8 I. C. C. R. 290. May be a differential be- tween corn and wheat and their products but must be reasonable. Board of R. R. Comr's. of Kansas v. A. T. & S. F. Ry. Co., 8 I. § 509.] Acts Regulating Commerce. 395 C. C. R. 304; Mayor etc. of Wichita v. :\ro. Pac. R. Co., 10 I. C. C. R. 35, and cases there cited. A station in Chicago, a shorter distance point should not have a higher rate than the union depot in Chicago. Chicago Fire Proof etc. Co. v. Chicago & N. W. R. Co., 8 I. C. C. R. 316. Carriers have no right to create new markets at expense of old ones. Savannah Bureau etc. V. L. & N. R. Co., 8 I. C. C. R. 377. Order enforced. Int. Com. Com. v. L. & N. R. Co., 118 Fed. 613. Relative rates be- tween Danville and Lynchburg illegal. Danville v. So. Ry, Co., 8 I. C. C. R. 409. Order not enforced. Int. Com. Com. v. So. Ry. Co., 117 Fed. 741, 122 Fed. 800, 60 C. C. A. 540. Rates must not destroy competition between cities. Board of Trade of Hampton v. N. C. & St. L. R. Co., 8 I. C. C. R. 503. Order not enforced. Int. Com. Com. v. N. C. & St. L. R. Co., 120 Fed. 934. Unjust discrimination illegal although no direct injury. Kindel V. A. T. & S. F. Ry. Co., 8 I. C. C. R. 608, 9 I. C. C. R. 606. Remedy for unlawful rates inadequate. McGrew v. M. P. R. Co., 8 I. C. C. R. 630. Rates violative of section. Hilton Lum- ber Co. V. "Wilmington etc. R. Co., 9 I. C. C. R. 17. Carriers may recognize natural, but ordinarily must not create artificial ad- vantages. Holdzkom v. Mich. Cent. Ry. Co., 9 I. C. C. R. 42, 54. Preference to be illegal must be the result of action of carriers. Wilmington Tariff Asso. v. Cincinnati, Portsmouth etc. R. Co., 9 I. C. C. R. 118, 157. Order not enforced. 124 Fed. 624. Il- legal discrimination in failure to publish through rates. John- son v. Chicago, Saint Paul etc. R. Co., 9 I. C. C. R. 221. Milling in transit a privilege that the carriers cannot be forced to give. Diamond Mills Co. v. Boston & M. R. Co., 9 I. C. C. R. 311. Differentials between C. L. and L. C. L. must be reasonable. Business Men's League of St. Louis v. A. T. & S. F. R. Co., 9 I. C. C. R. 318, 359. Facts constituting discrimination. Mayor etc. of Wichita v. A. T. & S. F. R. Co., 9 I. C. C. R. 534 ; same V. Chicago & R. I. R. Co., 9 I. C. C. R. 569. Rates unduly dis- criminatory. Marten v. L. & N. R. Co., 9 I. C. C. R. 581 ; Kindel V. A. T. & S. F. R. Co., 9 I. C. C. R. 606. Higher charge on coal because of method of loading illegal. Glade Coal Co. v. B. & 0. R. Co., 10 I. C. C. R. 226. Circumstances justifying different charges. Aberdeen Group Commercial Asso. v. M. & 0. R. Co., 10 I. C. C. R. 289. Should not make a different rate per him- dred on cattle in car lots and in ten car lots. New Orleans Live Stock Ex. V. T. & P. Ry. Co. 10 I. C. C. R. 327. Difference in 396 Acts Regulating Commerce. [§•'300. rate greater than competitive conditions justified. Gardner v. So. Ry. Co., 10 I. C. C. R. 342. No reason to charge more on live stock than on live stock prodncts. Chicago Live Stock Ex. v. Chicago Great W. R. Co., 10 I. C. C. R. 428. Circuit court contra. Int Com. Com. v. Chicago Great W. R. Co., 141 Fed. 1003, 209 U. S. 108, 52 L. Ed. 705, 28 Sup. Ct. Differential be- tween two cities should not he affected by point of origin. Mershon v. Cent. R. R. of N. J., 10 I. C. C. R. 456. Higher rate to "Wichita than the longer distance to Kansas City justified, ])ut differential too great. Lehman-Higginson Grocery Co. v. A. T. & S. F. R. Co., 10 I. C. C. R. 460. Should be no higher rates on shingles than lumber. Duluth Shingle Co. v. Duluth etc. R. Co., 10 I. C. C. R. 489. Refusal to grant divisions to "tap lines" east of the Mississippi River not illegal because granted by other carriers west of the river Central Yellow Pine Asso. v. 111. Cent. R. Co., 10 I. C. C. R. 505. Order enforced. 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. Combination rate should not be less than the straight rate. Cannon Falls etc. Elevator Co. v. Chicago Great W. R. Co., 10 I. C. C. R. 650. Reasonable differentials between Baltimore, Philadelphia and New York. Re Differential Freight Rates to and from North Atlantic Ports. 11 I. C. C. R. 13. Carrier not liable for discrimination caused by state commission. Re Freight Rates Between Memphis and Points in Arkansas. 11 I. C. C. R. 180. Differential between corn and corn products fixed. Re Rates on Corn and Corn Products. 11 I. C. C. R. 212, 220, 227. Unjust discrimination. City Gas Co. of Norfolk V. B. & 0. R. Co., 11 I. C. C. R. 371. Rates not imduly prejudi- cial. Griffin Grocery Co. v. So. Ry. Co., 11 I. C. C. R. 522. Flour in barrels and in sacks should have a uniformly just rate relation. Cannon v. M. & 0. R. Co., 11 I. C. C. R. 537. Junk should not be rated as high as machinery. National Machinery & Wrecking Co. v. Pittsburg etc. R. Co., 11 I. C. C. R. 581. Different rates in reverse directions not necessarily unreason- able. Weil V. Penn. R. Co., 11 I. C. C. R. 627. Duncan v. A. T. & S. F. R. Co.. 6 I. C. C. R. 85, 4 I. C. R. 385; MacLoon v. Boston & M. R. Co., 9 I. C. C. R. 642; Hewins v. New York, N. H. & H. R. Co., 10 I. C. C. R. 221; Phillips v. Grand Trunk W. R. Co., 11 I. C. C. R. 659 ; see also decision by Judge Speer, Int. Com. Com. v. L. & N. R. Co., 118 Fed. 613, 623. Adjustment of rates held unreasonable. Davenport v. So. Ry. Co., 11 I. C. § 509.] Acts Eegulating Commerce. 397 C. R. 650. Difference in cost of manufacture no ground in itself for adjustment of rates. Phillips v. Grand Trunk AV. Ry. Co., 11 I. C. C. R. 659. Not undue discrimination. Village of Good- hue V. Chicago Great W. Ry. Co., 11 I. C. C. R. 683, 687. A dif- ferent charge by a carrier for transporting freight originating on its own line than for that received from connecting lines il- legal. Blackwell I\Iilling & Elevator Co. v. M. K. & T. R. Co., 12 I. C. C. R. 23 ; Ponca City ]\Iilling Co. v. M. K. & T. R. Co., id. 26. Differential betv^een "Wichita and Kansas City from Gal- veston too great. Johnston-Larimer Dry Goods Co. v. A. T. & S. F. R. Co., 12 I. C. C. 11. 47, 188 ; see similar cases id, 51, 58. Carriers cannot arbitrarily fix market competition. Texas Ce- ment Plaster Co. v. St. L. & S. F. R. Co., 12 I. C. C. R. 68. May make cheaper rates to Pacific Coast from New England mills than from southeastern mills. Enterprise Mfg. Co. v. Ga. R. Co., 12 I. C. C. R. 130, 451 ; China & Japan Trading Co. v. Georgia R. Co., 12 I. C. C. R. 236. Rate discrimination. Tomlin-Harris Machine Co. v. L. & N. R. Co., 12 I. C. C. R. 133; Southern Grocery Co. v. Ga. N. R. Co., 12 I. C. C. R. 229. Different min- imum car load on same commodity illegal. Waxelbaum v. At- lantic C. L. R. Co., 12 I. C. C. R. 178. Adjustment illegal. Nobles Bros. Grocery Co. v. F. W. & D. C. R. Co., 12 I. C. C. R. 242. Relation in rates between grain and its products long es- tablished should not be changed without good reason. Howard Mills Co. V. Mo. Pac. R. Co., 12 I. C. C. R. 258; see also Traffic Bureau v. Mo. Pac. R. Co., 13 I. C. C. R. 11. Augusta, Ga., suburbs entitled to same rate as Augusta. Quimby v. Clyde S. S. Co., 12 I. C. C. R. 392. Discrimination. Banner Milling Co. V. New York Cent. etc. R. Co., 13.1. C. C. R. 31. Must be no unjust discrimination in distributing cars. Powhattan Coal & Coke Co. V. Norfolk & W. R. Co., ]3 I. C. C. R. 69 ; Royal C. & C. Co. V. So. Ry. Co., 13 I. C. C. R. 440; Traer v. Chicago & A. R. Co., 13 I. C. C. R. 451. Right to use private cars not prohibited but such use must not cause discrimination. Ruttle v. Pere IMar- quette R. Co., 13 I. C. C. R. 179. Must not discriminate in through routes and joint rates. Merchants Freight Bureau of Little Rock V. ^Midland Valley etc. R. Co., 13 I. C. C. 243. Freight tariff's should not be obscure. Hydraulic Press Brick Co. V. St. L. & S. F. R. Co., 13 I. C. C. R. 342. Little reference can be given to the value of property in fixing express rates. Kindel V. Adams Ex. Co., 13 I, C. 0. R. 475. Party rates must be open 398 Acts Kegulating Commerce. [§509. to all. Koch Secret Service v. L. & N. R. Co., 13 I. C. C. R. 523. Reasonable and just rates may be fixed regardless of con- tracts between express and railroad companies. Reynolds v. So. Ex. Co.. 13 I. C. C. R. 536. Rate not violation of section. Randolph Lumber Co. v. Seaboard A. L. R. Co., 13 I. C. C. R. 601. Rates may be different on hard and soft wood timber. Burgess v. Transcontinental Freight Bureau, 13 I. C. C. R. 668. Terminal companies may not discriminate in facilities granted shippers. Eichenberg v. So. Pac. Co.. 14 I. C. C. R. 250. Order not enjoined. Southern Pac. Ter. Co. v. Int. Com. Com., 166 Fed. 134. Not unjust discrimination to refuse to transport liq- uors C. 0. D. Royal Brewing Co. v. Adams Ex. Co., 15 I. C. C. R. 255, 258. Shippers have a right to reach a common market without discrimination. Black Mountain Coal Land Co. v. So. Ry. Co., 15 I. C. C. R. 286. Competition by water may justify different car load minimum. City of Spokane v. N. Pac. R. Co., 15 I. C. C. R. 376. Furnishing two cars at the minimum of one when one large one cannot be furnished, known as the "two for one" rule, must be without discrimination. Indianapolis Freight Bureau v. Cleveland, C, C. & St. L. Ry. Co., 15 I. C. C. R. 504, 516. Carrier cannot discriminate in favor of products on its own line. Standard Lime & Stone Co. v. Cumberland Val. R. Co., 15 I. C. C. R. 620. 624. At common law discrimination by common carriers was illegal. Hays v. Penn. Co., 12 Fed. 309: Kinsley v. Buffalo, N. Y. & P. R. Co., 37 Fed. 181; Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561. Section two relates to unjust discrimination in rates, section three is broader and prohibits discrimination "in any respect whatever." United States v. Delaware, L. & "W. R. Co., 40 Fed. 101, 103. Our section taken from English Traffic Acts and English cases cited showing the construction placed upon the statutes from which this section is taken. Int. Com. Com. v. B. & 0. R. Co.. 43 Fed. 37, 3 I. C. R. 192. Affirm- ed. 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. Federal courts have jurisdiction under this section regardless of diversity of citizenship. Little Rock & ]\r. R. Co. v. East Tenn., A^a. & Ga. R. Co., 47 Fed. 771. Appeal dismissed. 159 U. S. 698, 40 L. Ed. 311, 16 Sup. Ct. 189. Does not require one road to receive cars of another when it has cars of its own in which the freight may be transported. Oregon Short Line and U. N. Ry. Co. v. N. Pac. R. Co., 51 Fed. 465. Affirmed. 61 Fed. 158, 9. C. C. A. § 509.] Acts Regulating Commerce. 399 409. Only unjust discrimination prohibited. Int. Com. Com. v. Tex. & Pac. Ry. Co., 52 Fed. 187, citing Nicholson v. Great" AA' . Ry. Co., 5 C. B. (N. S.) 366. Affirmed. 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408. Reversed on other grounds, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. Clause indefinite and uncertain and as whether or not undue preference exists must be left to a jury, a violation not punishable as a crime. Tozer v. United States, 52 Fed. 917; see opinion and charge of lower court United States v. Tozer, 37 Fed. 635, 2 L. R. A. 444, 39 Fed. 369, 39 Fed. 904. Not illegal to guarantee that an opera troupe shall arrive at its destination at a given time. Foster V. Cleveland, C, C. & St. L. Ry. Co., 56 Fed. 434. Carrier not required to permit a competitor to land at its wharf. Ilwaco Ry. & Nav. Co. v. Ore. Short L. and U. N. Ry. Co., 57 Fed. 673, 6 C. C. A. 495; AVeems Steamboat Company v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. , 29 Sup. Ct. . Carrier may permit use of its track to one to the exclusion of other carriers. Little Rock & M. R. Co. v. St. L., I. ]\I. & S. Ry. Co., 59 Fed. 400. Affirmed, 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192. Cannot make a different charge because of origin of commodity. Big- bee etc. Packet Co. v. Mobile & 0. R. Co., 60 Fed. 545. Joint through tariff not basis for local tariff. Parsons v. Chicago & N. AV. Ry. Co., 63 Fed. 903, 11 C. C. A. 489. Affirmed. 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887, holding that a shipper cannot recover a penalty for discrimination if his rate is rea- sonable. Giving free pass violates section. Re Charge to Grand Jury. 66 Fed. 146. If pass is used. Re Huntington 68 Fed. 881. No defense to charge of discrimination that carrier may at will withdraw the favor to plaintiff's competitor. Butchers' etc. Stock Yards Co. v. L. & N. R. Co., 67 Fed. 35, 14 C. C. A. 290. Attention called to the fact that the words "under sub- stantially similar circumstances and conditions" are not in this section. Int. Com. Com. v. Alabama M. Ry. Co., 69 Fed. 227, 231. Affirmed. 74 Fed. 715, 21 C. C. A. 51, 41 U. S. App. 453, 5 I. C. R. 685, holding that what is undue and unreasonable preference a question of fact and not of law. Affirmed. 168 U. S. ]44, 42 L. Ed. 414. 18 Sup. Ct. 45, holding that a de- termination by the Interstate Commerce Commission that a rate violates section three is subject to review by the courts. Second and third sections compared. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409. The collection as well as the delivery of goods is 400 Acts Regulating Commerce. [§509. subject to the rule of equal treatment. Detroit, G. II. & ]\I. Ky. Co. V. Int. Com. Com., 74 Fed. 803, 812, 21 C. C. A. 103, 43 U. S. App. 308, reversing 57 Fed. 1005, 4 I. C. R. 722. Affirmed. 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. The ultimate power of determining whether or not there is discrimination is in the courts. Int. Com. Com. v. East Tenn., Va. & Ga. Ry. Co., 85 Fed. 107, 117. Affirmed. 99 Fed. 52, 39 C. C. A. 413. Re- versed. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. There might be a viola- tion of section three without a violation of section four, but the facts here do not make such a case. Int. Com. Com. v. Western & A. R. Co., 88 Fed. 186, 194. Affirmed. 93 Fed. 83, 35 C. C. A. 217. Modified so that the commission could make an original investigation in accord with the rules of law announced. Int. Com. Com. v. Clyde S. S. Co. and same v. "Western & A. R. Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Length of time will not make discrimination legal, and the courts are not con- cluded by the determination of carriers. Discrimination pro- duced by an effective restraint of trade will not make such a different state of circumstances as to justify discriminative rates. East Tenn.. Ya. & Ga. Ry. Co. v. Int. Com. Com., 99 Fed. 52, 39 C. C. A. 413. Reversed because the commissioners and the courts did not consider all the legal principles that should have been applied. Cause dismissed without prejudice to the rights of the commission to make further investigation accord- ing to the law as announced. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. Section applies to switch connections and equity may enjoin dis- crimination. Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. 472. Must be actual not threatened discrimination. Lehigh V. R. Co., v. Rainey, 112 Fed. 487. The same evidence that Avill relieve from section four will disprove undue prefer- ence under section three. Int. Com. Com. v. Nashville, C. & St. L. Ry. Co., 120 Fed. 934. Carriers may meet competition with- out violating section. Int. Com. Com. v. Cincinnati, P. & V. R. Co., 124 Fed. 624. Whether a preference is "undue" or "un- reasonable" must be determined by the circumstances of each case. The act to regulate commerce was designed to promote and not to obstruct competition. An able and comprehensive discus- sion of the subject of rates. Int. Com. Com. v. Chicago G. W, Ry, Co., 141 Fed. 1003. Affirmed, sanie style case, 209 V- S. § 510.] Acts Regulating Commerce, 401 108, 52 L. Ed. 705, Sup Ct. , holding that competition negatives any -unlawful intent on the part of the carrier. This section requires that carriers shall not discriminate in furnish- ing cars to shippers. United States v. Norfolk & W. Ry. Co., 143 Fed. 266, 74 C. C. A. 386, 404, reversing 138 Fed. 849. A carrier may legally make a contract to build up and develop a particular traffic. Delaware, L. & W. R. Co. v. Kutter, 147 Fed. 51, 77 C. C. A. 315. Petition for certiorari denied. 203 U. S. 588, 51 L. Ed. 330. A charge in excess of the cost of loading hay from warehouses illegal. St. Louis Hay & Grain Co. v. Southern Ry. Co., 149 Fed. 609. Affirmed. So. Ry. Co. v. St. Louis Hay & Grain Co., 153 Fed. 728, holding that charges on through busi- ness not a basis for charges on local business. Reversed. So. Ry. Co. v. St. Louis Hay and Grain Co., 214 U. S. 297, 53 L. Ed. , Sup. Ct. , holding that the carrier was entitled to a reasonable profit in excess of the actual cost. Section sufficiently broad to cover demurrage charges. Michie v. New York, N. H. & H. R. Co., 151 Fed. 694. Rule as to distribution of cars to coal companies. United States v. B. & 0. R. Co., 154 Fed. 108. Reversed. 165 Fed. 113, C. C. A. . Logan Coal Co. v. Penn. R. Co., 154 Fed. 497; Majestic Coal & Coke Co. v. 111. Cent. R. C, 162 Fed. 810. A carrier may grant to one the right to erect an elevator on its right-of-way and refuse such right to another. United States v. Oregon R. & Nav. Co., 159 Fed. 975. Express companies cannot transport free the property of its officers or employees. United States v. Wells Fargo Ex. Co., 161 Fed. 606. Affirmed. Wells Fargo Ex. Co. V. United States, 212 U. S. 522, 53 L. Ed. , 29 Sup. Ct. Congress in adopting this section is presumed to have adopted the construction placed on a similar English statute by the courts of England. Int. Com. Com. v. B. & 0. R. Co., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. Statute does not de- fine what preference is due or undue, reasonable or unreasonable and such questions are questions not of law but of fact. Tex. & Pac. R. Co. V. Int. Com. Com., 162 U. S. 197, 219, 220, 40 L. Ed. 940. 947, 948, 16 Sup. Ct. 666. § 510. Carriers shall accord reasonable and equal facilities for interchange of traiRc. — Every common carrier subject to the pro- visions of this act sliall, according to their respective powers, af- ford all reasonal)le, proper, aiid equal facilities for the inter- f'lumge of traffic iKjtwccn tlicir respective lines, and for the re- 402 Acts Regulating Commerce. [§ 510. ceiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines ; but this shall not be construed as requir- ing any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. Paragraph two of section three as originally enacted. A private stock car company is not a connecting line within meaning of section. Burton Stock Car Co. v. Chicago & Bur- lington R. Co., 1 I. C. C. R. 132, 1 I. C. R. 329. Commission may not compel agents of one road to sell tickets over another. Chicago & Alton R. Co. v. Penn. R. Co., 1 I. C. C. R. 86, 1 I. C. R. 357. A bridge company having the powers of a common car- rier bound by section. Kentucky etc. Bridge Co. v. L. & N. R. Co., 2 I. C. C. R. 162, 2 I. C. R. 102. Order not enforced. 37 Fed. 567. Carriers may make through routes and joint rates with some river boats and refuse to do so with others. Capehart V. L. & N. R. Co., 4 I. C. C. R. 265, 3 I. C. R. 278. A carrier cannot refuse to interchange traffic with another carrier because that other is interested in a competing line. New York & N. Ry. Co. V. New York & N. E. R. Co., 4 I. C. C. R. 702, 3 I. C. R. 542. Suit to enforce order not dismissed. 50 Fed. 867. Section con- strued and held not to give commission power to order loaded cars delivered to a connecting carrier. R. R. Com. of Ky. v. L. & N. R. Co., 10 I. C. C. R. 173, 187. To enforce through routes and joint rates on behalf of connecting carriers is not to take the use of terminal facilities. Cardiff Coal Co. v. Chicago,' •M. & St. P. R. Co., 13 I. C. C. R. 460. This statute a shippers provision and indicates the ''open gateway policy" of the act. Rahway Valley R. Co. v. Delaware, L. & W. R. Co., 14 I. C. C. R. 191, 194. Section quoted. Enterprise Fuel Co. v. Penn. R. Co., 16 I. C. C. R. 218. 221. Does not require the forming of new connections or establishment of new stations. Kentucky & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 621, 630. Courts cannot compel a through route and joint rate. Little Rock etc. R. Co. V. St. Louis etc. R. Co., 41 Fed. 559. A carrier may prefer its oa^ti line to that of a rival. Little Rock etc. R. Co. v. East Tenn.. Va. & Ga. Ry. Co.. 47 Fed. 771. IMust not only re- ceive freight from a connection but must also grant reasonable and equal facilities for such connection. New York & N. Ry. Co. V. New York & N. E. R. Co., 50 Fed. 867, 870. A railroad § 511.] Acts Regulating Commerce. 403 is not required to take a connecting carrier's cars when it can transport the freight in its own cars. Oregon Short Line etc. Ry. Co. V. N. Pac. R. Co., 51 Fed. 465. Affirmed. 61 Fed. 158, 9 C. C. A. 409. May enjoin a conspiracy to refuse to make connections. Toledo etc. R. Co. v. Penn. Co., 54 Fed. 730, 746, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561; Ex parte Lennon, 64 Fed. 320, 22 U. S. App. 561, 166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658. Not required to permit boats of a competitor to land at wharf. Ilwaco Ry. & Nav. Co. v. Oregon Short Line etc. Ry. Co., 57 Fed. 673, 6 C. C. A. 495, reversing 51 Fed. 611. Nor to permit use of its own tracks. Little Rock etc. R. Co. V. St. Louis, I. I\I. & S. Ry. Co., 59 Fed. 400. Affirm- ed. 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192. Common carrier may make an exclusive contract with a drayage com- pany. St. Louis Drayage Co. v. L. & N. R. Co., 65 Fed. 39. Or with another carrier. Prescott & A. C. R. Co. v. A. T. & S. F. R. Co., 73, 438. Cannot charge more to transmit freight re- ceived from one carrier than from another. Augusta S. R. Co. V. Wrightsville & T. R. Co., 74 Fed. 522. Carrier may demand prepayment of freight from one conecting carrier and not from another. Gulf etc. R. Co. v. Miami S. S. Co., 86 Fed. 407, 30 C. C. A. 142; Southern Ind. Exp. Co. v. United States Exp. Co., 88 Fed. 659. It is the duty of a common carrier to furnish rea- sonable facilities for unloading and caring for live stock, to do this by contracting with one person to the exclusion of others does not violate this section. Central Stock Yards Co. v. L. & N. R. Co., 118 Fed. 113, 117, 118, 55 C. C. A. 63, citing A. T. & S. F. R. Co. V. Denver & N. 0. R. Co., 110 U. S. 667, 28 L. Ed. 291. 4 Sup. Ct. 185. Express Cases, Memphis & L. R. R. Co. v. So. Express Co., 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542; Pullman Palace Car Co. v. Mo. Pac. R. Co., 115 U. S. 587, 29 L. Ed. 499, 6 Sup. Ct. 194; N. Pac. R. Co. v. Washington ex rel. Dustin, 142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 283. The case and the doctrine of Central Stock Yards Co. v. L. & N. R. Co., 118 Fed. 113, 55 C. C. A. 63, affirmed. Same case, 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339. Also assuming, without deciding, that injunction the proper remedy against discrimina- tion, 570. Duties of carrier to furnish facilities to shipper dis- cussed at length with reference to furnishing cars to ship coal. TInited States v. B. & 0. R. Co.. 165 Fed. 113. § 511. Rule as to long- and short hauls. — Tliat it sliall be un- 404 Acts REC.rLATiNG Commerce. [§ 511. lawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggre- gate for the transportation of passengers or of like kind of prop- erty, 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 com- mon carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance: Provided, however. That upon application to the commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property ; and the com- mission may from time to time prescribe the extent to M'hich such designated common carrier may be relieved from the oper- ation of this section of this act. Section four of original act. The English Railway and Traffic Act of 1888, section 27, gave the commissioners power to direct that no greater charge should be made for a shorter than a longer haul when the cir- cumstances demanded such direction. Halsbury's Laws of Eng- land, vol. 4, p. 81. "Under substantially similar circumstances" defined and cir- cumstances that relieve from the section discussed. Re Southern Ry. & Steamship Co. and Petition .of L. & N. R. Co., 1 I. C. R. 15, 17, 31, 76, 278, 1 I. C. C. R. 31. Section not to be con- strued without a formal petition. Re So. Pac. R. Co., 1 I. C. R. 16. Where several roads join in a tariff for the longer, and a less number in that for the shorter haul, the act applies. Boston & A. R. Co. V. Boston & L. R. Co., 1 I. C. C. R. 158, 1 I. C. R. 400, 408, 500, 571. Carrier competition may be met even though the longer through haul is less than the charge over the shorter haul. Allen v. Louisville, New Albany etc. R. Co., 1 I. C. C. R. 199, 1 I. C. R. 621. Must be actual competition of controlling force. Harwell v. Columbus & W. R. Co., 1 I. C. C. R. 236. 1 I. C. R. 631 ; San Bernardino Board of Trade v. A. T. & S. F. R. Co., 4 I. C. C. R. 104, 3 I. C. R. 138. Order not enforced. Int. Com. Com. v. A. T. & S. F. R. Co., 50 Fed. 295. Mrv violate section by a different classification for shorter haul. Martin v. So. Pac. Co., 2 I. C. C. R. 1, 2 I. C. R. 1. Burden § 511.] Acts Regulating Commerce. 405 on carrier to show different circumstances. Spartanburg Board of Trade v. Richmond & D. R. Co., 2 I. C. C. R. 304, 2 I. C. R. 193. Validity of tlie charge determined not by projDortions but by the rate as an entirety. Imperial Coal Co. v. Pittsburg & L. E. R. Co., 2 I. C. C. R. 618, 2 I. C. R. 436. Principles given showing application of section to tariffs and classification in southern states. Re Atlanta & AV. P. R. Co., 3 I. C. C. R. 19, 46, 2 I. C. R. 461. Free cartage at the longer and not at the shorter may constitute a violation of section. Stone v. Detroit etc. R. Co., 3 I. C. C. R. 613, 3 I. C. R. 60. Blanket rate legal when forced by competition. Rice v. A. T. & S. F. R. Co., 4 I. C. C. R. 228, 3 I. C. R. 263. Rate legal because of competition. King V. New York, N. H. & H. R. Co., 4 I. C. C. R. 251, 3 I. C. R. 272. Basing point rate plus the local not approved. Hamil- ton & Brown v. Chattanooga, R. & C. R. Co., 4 I. C. C. R. 686, 3 I. C. R. 482. Local carrier participating in interstate haul cannot escape the provisions of this section. James & Mayer Buggy Co. V. Cincinnati, N. 0. & T. P. R. Co., 4 I. C. C. R. 744, 3 I. C. R. 682. Order not enforced by circuit court. Int. Com. Com. V. C. N. 0. & T. P. R. Co., 56 Fed. 925. Circuit court re- versed, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. No reason for greater charge for shorter haul. Perry v. Florida Cent. & P. R. Co., 5 I. C. C. R. 97, 3 I. C. R. 740. Section intended to maintain not destroy advantages of location. Raworth v. N. Pac. R. Co., 5 I. C. C. R. 234, 3 I. C. R. 857. Carriers may not determine for themselves whether or not the circumstances jus- tify a greater charge for a short haul, except on their own line ; where there is a joint line, must before making the charge ob- tain order of commission. Trammel etc. R. R. Comr's. of Ga. v. Clyde Steamship Co., 5 I. C. C. R. 324, 4 I. C. R. 120. Order not enforced. Int. Com. Com. v. W. & A. R. Co., 88 Fed. 186, 93 Fed. 83, 35 C. C. A. 226, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Rates to Pacific Coast Terminals may be lower than to Spokane. Merchants Union of Spokane Falls v. N. P. R. Co., 5 I. C. C. R. 478, 4 I. C. R. 183. Order not enforced. Farmers L. & T. Co. V. N. Pac. R. Co., 83 Fed. 249. Greater charge to Chattanooga than thi-ough Chattanooga to Nashville illegal. Board of Trade of Chattanooga v. E. T., V. & G. R. Co., 5 I. C. C. R. 546, 4 I. C. R. 213. Order enforced. 85 Fed. 107, 99 Fed. 52, 39 C. C. A. 413. Reversed in Supreme Court. East Tenn., Va. & Ga. R. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 406 Acts Regulating Commerce. [§ 511. 21 Sup. Ct. 516. When difference justifies, it must be reason- able. Competition for the longer haul between carriers subject to the act not a dissimilar circumstance. Gerke Brewing Co. v. L. & N. R. Co., 5 I. C. C. R. 596, 4 I. C. R. 267. The fact that one city is larger than another, no such dissimilar condition as the statute requires. Board of Trade of Troy v. Ala. Midland R. Co., 6 I. C. C. R. 1. Order not enforced. Int. Com. Com. v. Ala. M. R. Co., 69 Fed. 227, 74 Fed. 715, 21 C. C. A. 51, 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. Competition of mar- kets and carriers not justify carriers in first instance to charge more for a longer than a shorter haul, but the carrier must ob- tain permission of the Interstate Com. Com. Behlmer v. Mem- phis & C. R. Co., 6 I. C. C. R. 257, 4 I. C. R. 520. Order not enforced. 71 Fed. 835. Circuit court reversed. 83 Fed. 898. Circuit court of appeals reversed. L. & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209. Shortage of grain crop sufficient to justify temporary order to charge less for a longer than for a shorter haul. Re Application of Freemont, Elkhorn & Mo. Valley R. Co. et al., 6 I. C. C. R. 293. Each case must be determined on its special facts. Re Petition of Cincinnati, II. & D. R. Co. For Relief Under Section 4, 6 I. C. C. R. 323. World's Fair sufficient reason for relief under proviso. Re Petition of Cincinnati, H. & D. R. Co., for Relief Under Section 4. 6 I. C. C. R. 323. Re Application of Rome, Waterto^^•n etc. R. Co. 6 I. C. C. R. 328. That there is a shorter line to the same point does not justify relief. Hill & Bro. v. Nashville, C. & St. L. R. Co., 6 I. C. C. R. 343. ''Line" means a physical line, not a mere business arrangement. Daniels v. Chicago, R. I. & P. R. Co., 6 I. C. C. R. 458, 476. To Kansas City the longer distance, a less rate should not be given than to Wichita the shorter. Johnston-Larimer Dry Goods Co. v. A. T. & S. F. R. Co., 6 I. C. C. R. 568, 12 I. C. C. R. 47, 188. Vio- lation of section a form of unjust discrimination. McClelen v. So. Ry. Co., 6 I. C. C. R. 588. Order not enforced. Int. Com. Com. v. So. Ry. Co., 105 Fed. 703. Dissimilaritj^ of the carrier's owTL making not justify deviation from rule. Jerome Hill Cot- ton Co. V. M. K. & T. Ry. Co., 6 I. C. C. R. 601. Competition at the longer distance point by carriers subject to act not justify less rate for longer haul unless by permission of commi.ssion. Board of Trade of Lynchburg v. Old Dominion Steamship Co., 6 I. C. C. R. 632. Re Alleged Violation of Fourth Section. 7 I. § 511.] Acts Regulating Commerce. 407 C. C. E. 61. Section not violated by charging the same rate for the shorter as for the longer distance. Milk Producers' Pro- tective Asso. V. Delaware, L. & W. E. Co., 7 I. C. C. E. 93, 163. Carriers may meet but not extinguish water competition. Brewer V. L. & N. E. Co., 7 I. C. C. E. 224, 235; Eailroad Comrs. of Ky. V. Cincinnati, N. 0. & T. P. E. Co., 7 I. C. C. E. 380. Order not enforced. Brewer v. Central of Ga. E. Co., 84 Fed. 258, Competition of markets not sufficient to relieve from statute. FeweU v. Eichmond & D. E. Co., 7 I. C. C. E. 354. Higher rates from New Orleans to LaGrange the shorter distance than to Atlanta illegal. Callaway v. L. & N. E. Co., 7 I. C. C. E. 431. Order enforced. 102 Fed. 709. Circuit court reversed. Int. Com. Com. v. L. & N E. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687. Water competition justifies a less charge for the longer haul. Savannah Bureau of Freight & Transportation v. Charleston & S. E. Co., 7 I. C. C. E. 458 ; Dallas Freight Bureau V. Tex. & Pac. Ey. Co., 8 I. C. C. E. 33. Competition with a foreign carrier not subject to the law justifies an order of the commission relieving from section. Ee Application of A. T. & S. F. Ey. Co., 7 I. C. C. E. 593. Ee Alleged Disturbance of Passenger Eates by Canadian Pacific E. Co., 8 I. C. C. E. 71. Mere fact of competition not of itself relief from section. Phil- lips, Bailey & Co. v. L. & N. E. Co., 8 I. C. C. E. 93, citing de- cisions of Supreme Court. May make lower rate on goods ex- ported than on those consumed at the port. Kemble v. Boston & A. E. Co., 8 I. C. C. E. 110. Section violated. Ee Alleged Violation of Act by St. L. & S. F. Ey. Co., 8 I. C. C. E. 290. Eailroad Comr's. of Kansas v. A. T. & S. F. Ey. Co., 8 I. C. C. E. 304; Chicago Fire Proof etc. Co. v. Chicago & N. W. Ey. Co., 8 I. C. C. E. 316. Kindel v. A. T. & S. F. Ey. Co., 8 I. C. C. E. 608, 9 I. C. C. E. 606. Eail competition may be consid- ered, the effect of such competition being a question of fact in each case. Tileston ^Milling Co. v. N. Pac. Ey. Co., 8 I. C. C. E. 346, citing and following Int. Com. Com. v. Alabama M. E. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. Dissimilar conditions. Gustin v. Burlington & M. E. E. Co., 8 I. C. C. E. 481 ; Marten v. L. & N. E. Co., 9 I. C. C. E. 581. Facts not au- thorizing the difference existing between the long and short haul rates. Board of Trade of Hampton v. N. C. & St. L. Ey. Co., 8 I. C. C. E. 503. Order not enforced. Int. Com. Com. v. N. C. & St. L. Ey. Co., 120 Fed. 934. Demurrage charges not within 408 xVcTs Regl'lating Commerce. [§ 511. section. Peuii. Millers' JSlute Asso. v. Philadelphia & R. Ry. Co., 8 I. C. C. R. 531. All forms of competition must be considered, but in each case it is a question of fact as to the effect to be given such competition. Holdzkom v. Mich. Cent. Ry. Co., 9 I. C. C. R. 42; Dallas Freight Bureau v. Austin & N. "W. R. Co., 9 I. C. C. R. 68. Carrier may meet competition of shorter line. Ulrick v. Lake Shore etc. Ry. Co., 9 I. C. C. R. 495. Competitive conditions at Kansas City entitle her to a lower rate to Texas ports than Wichita. ]\Iayor etc. of Wichita V. A. T. & S. F. Ry. Co., 9 I. C. C. R. 534, 558, citing Supreme Court decisions since the case of Jolmston etc. Dry Goods Co. V. A. T. & S. F. Ry. Co., 6 I C. C. R. 568 ; see also same plain- tiff V. New York & Tex. S. S. Co., 12 I. C. C. R. 58. Higher rate to Chattanooga than to Nashville the longer distance not illegal under the circumstances. Chamber of Commerce of Chat- tanooga V. So. Ry. Co., 10 I. C. C. R. Ill, citing and following previous holding of Supreme Court in same case, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512., Same holding as to cities in Alabama and Mississippi. Aberdeen Group Commercial Asso. V. M. & 0. R. Co., 10 I. C. C. R. 289. As to cities in Florida. Rock Hill Buggy Co. v. So. Ry. Co., 11 I. C. C. R. 229. Differ- ence greater than section justified. Gardner & Clark v. So. Ry. Co., 10 I. C. C. R. 342 ; Lehman-Higginson Grocery Co. v. A, T. & S. F. R. Co., 10 I. C. C. R. 460. Burden on carrier to show circumstances justifying greater charge for shorter haul. Geo. M. Speigle Co. v. Chesapeake & 0. Ry. Co., 11 I. C. C. R. 367. Section not violated. Dewey Bros. Co. v. B. & 0. R. Co., 11 I. C. C. R. 475; Griffin Grocery Co. v. So. Ry. Co., 11 I. C. C. R. 522 ; Farrar v. So. Ry. Co., 11 I. C. C. R. 522 ; Hastings Malting Co. V. Chicago, M. & St. P. Ry. Co., 11 I. C. C. R. 675; Village of Goodhue v. Chicago G. W. Ry. Co., 11 I. C. C. R. 683 ; Dur- ham V. 111. Cent. R. Co., 12 I. C. C. R. 37. Pecos IMercantile Co. V. A. T. & S. F. Ry. Co., 13 I. C. C. R. 173 ; R. R. Com. of Ky. V. L. & N. R. Co., 13 I. C. C. R. 300; Topeka Banana Dealers' Asso. V. St. L. & S. F. R. Co., 13 I. C. C. R. 620; Phillips- Trawick- James Co. v. So. Pac. Co., 13 I. C. C. R. 644. A mere theoretical or paper rate not sufficient to show violation. I\ro. & Kan. Shippers Asso. v. M. K. & T. Ry. Co., 12 I. C. C. R. 483. The different circumstanoes must not only be clearly sho\^Ti, but must also clearly exercise a potent or controlling influence. Bovaird Supply Co. v. A. T. & S. F. Ry. Co., 13 I. C. C. R. 56. § 511.] Acts Regulating Commerce. 409 Facts that entitle the carrier to charge more for the shorter than the longer haul. Gump v. B. & 0. R. Co., 14 I. C. C. R. 98 ; Chicago Sash & Door Asso. v. Norfolk & W. R. Co., 14 I. C. C. R. 594. Section violated. Greater Des Moines Com. v. Chicago G. AV. Ry. Co., 14 I. C. C. R. 294. Section referred to and held not violated. MacGillis & Gibbs Co. v. Chicago, M. & St. P. Ry. Co., 15 I. C. C. R. 329. Section not affected by amendment of June 29, 1906. City of Spokane v. N. Pac. R. Co., 15 I. C. C. R. 376, 388. Competition is a fact that justifies a less charge for a longer than a shorter haul. Ex parte Koehler, 31 Fed. 315, 12 Sa^^ry. 446 ; Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co., 56 Fed. 951. Reversed. 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. Where circumstances and conditions are not similar, the law does not apply. When there is doubt as to whether or not there is a difference, application for relief should be made to the commission. Mo. Pac. Ry. Co. v. Tex. & Pac. Ry. Co., 31 Fed. 862. That the rate for the longer haul was a joint rate will not relieve from section. Jimod v. Chicago & N. W. Ry. Co., 47 Fed. 290; Osborne v. Chicago & N. W. Ry. Co., 48 Fed. 49. Reversed on this point. Chicago & N. W. v. Osborne, 52 Fed. 912, 3 C. C. A. 347. Followed, United States v. Mellen, 53 Fed. 229 ; Parsons v. Chicago & N. W. Ry. Co., 63 Fed. 903, 11 C. C. A. 489, 37 U. S. App. 394. Affirmed. 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887 ; Int. Com. Com. v. Alabama M. Ry. Co., 69 Fed. 227. Affirmed. 74 Fed. 715, 21 C. C. A. 51, 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45. The carrier may act under the proviso without first applying to the commission, though the commission has the right to revise this action. Int. Com. Com. v. A. T. & S. F. R. Co., 50 Fed. 295, 300; Detroit, G. H. & M. Ry. Co. v. Int. Com. Com., 74 Fed. 803, 819, 21 C. C. A. 103, 43 U. S. App. 308, reversing 57 Fed. 1005, 4 I. C. R. 722. Affirmed. 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. Where the more distant point can be reached by rail and water and the less distant by only one rail carrier, the circumstances are not similar. Behlmer v. L. & N. R. Co., 71 Fed. 835. Re- versed. 83 Fed. 898, 28 C. C. A. 229. Decree of circuit court of appeals reversed. L. & N. R. Co. v. Behlmer, 175 IT. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209. This section does not prevent common carriers from making special rates to meet competition and inci'ease their business. Int. Com. Coin. v. Ala])ania i\r. R. Co., 74 Fed. 715, 723, 724, 21 C. C. A. 51, 41 U. S. App. 453, 410 Acts Regulating Commerce. [§ 511. 5 I. C. R. 685. Charges for delivery, storage, etc., are included within meaning of section. Detroit, G. II. & M. Ry. Co. v. Int. Com. Com., 74 Fed. 803. Competition to justify a greater charge for the shorter haul must be of that kind which could carry the freight to the longer distance point if the carrier making such charge did not. Behlmer v. L. & N. R. Co., 83 Fed. 898, 906. Reversed. L. & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209. Competition between rival rail carriers must be considered in determining whether or not dissimilar conditions exist. Brewer v. Central of Ga. Ry. Co., 84 Fed. 258. Mere dissimilarity insufficient, must be sufficient to justify the difference in the charge. Int. Com. Com. v. East Tcnn., Va. & Ga. Ry. Co., 85 Fed. 107. Affirmed. 99 Fed. 52, 39 C. C. A. 413. Reversed. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. "What facts constitute dissimilar conditions. Int. Com. Com. v. Western & A. R. Co., 88 Fed. 186. Affirmed. 93 Fed. 83, 35 C. C. A. 217, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Discrimination cannot be justified where the dissimilar condi- tions are created by roads strifling competition. East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 99 Fed. 52, 62, 63, 39 C. C. A. 413. Reversed by Supreme Court. 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516. Commission finding that the rate for the shorter haul illegal will not be set aside unless error clearly appears. Int. Com. Com. v. L. & N. R. Co., 102 Fed. 709. Re- versed. 108 Fed. 988, 46 C. C. A. 685, 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687. The commission must consider the evi- dence showing all kinds of competition. Int. Com. Com. v. So. Ry. Co., 105 Fed. 705. Evidence shoAving no violation of this section will show that there is no violation of section three. Int. Com. Com. v. Nashville, C. & St. L. Ry. Co., 120 Fed. 934. The question of whether or not circumstances are or are not dissim- ilar is one of fact peculiarly within the province of the commis- sion to determine. Cincinnati, N. O. & T. P. R. Co. v. Int. Com. Com., 162 U. S. 184, 194, 40 L. Ed. 935, 938, 16 Sup. Ct. 700. Section relates only to transportation by rail and charges there- for and not to cartage. Int. Com. Com. v. Detroit, G. H. & M. R. Co., 167 U. S. 633, 644, 42 L. Ed. 306, 309, 17 Sup. Ct. 986. All competition will not justifj^ the greater charge for the shorter haul (167). Carrier need not first apply to the commission be- fore acting on dissimilar conditions. (167, 169). Int. Com. § 512.] Acts Kegulating Commerce. 411 Com. V. Alabama M. K. Co., 168 U. S. 144, 167, 169, 42 L. Ed. 414, 423, 424, 18 Sup. Ct. 45. This case as said by Mr. Justice Harlan, dissenting goes a long ways to make the commission a useless body. Market competition (662), and competition of carriers subject to act must be considered by the commission (669). L. & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209; East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516; Int. Com. Com. V. Clyde S. S. Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Possibility of competition at the shorter distance point not material. Int. Com. Com. v. L. & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687. In fixing rates carriers may take into consideration genuine competition with other carriers. Int. Com. Com. v. Chicago G. W. R. Co., 209 U. S. 108, 119, 52 L. Ed. 705, 712, 29 Sup. Ct. § 512. Pooling of freights and division of earnings prohibited. — 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 competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or anj^ portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. Section five of original act. The Canadian Act, Canadian Railway Law by MacMurchy & Denison, 501, is as follows : ''No company shall, except in accordance with the provisions of this act, directly or indirectly, pool its freights or tolls with the freights or tolls of any other railway company or common carrier, nor divide its earnings or any portion thereof with any other railway company or common carrier, nor enter into any contract, arrangement, agreement, or combination to effect, or which may effect, any such result, without leave therefor having been obtained from the board." In the same volume, p. 502, referring to this act, it is stated: "Railroad pools are not contrary to public policy in Eng- land or in Canada. Section 284 of the Railway Act, which is similar in its terms to section 87 of the Railway Clauses Act. 1845, permits working or traffic agreements: See Hare v. L. & N. AV. R. Co., 2 J. & IT. 480, 30 L. J. Ch. 817. Two companies 412 Acts Regulating Commerce. [§ 512. having the same termini, may, in order to avoid competition, come to an agreement with reference to traffic along existing routes on their lines, with a view to distribute such traffic, and the revenue derived from it, between the two companies. This case was followed in Great Western R. W. Co. v. Grand Trunk R. W. Co., 25 U. C. R. 37, and Campbell v. Northern R. W. Co., 26 Gr. 522." Pooling between a rail carrier subject to the act and a pipe line not subject not within prohibition of section. Independent Refiners' Asso. v. Western New York & Penn. R. Co., 5 I. C. C. R. 415, 4 I. C. R. 162. Fines of carriers for violating an agreement to divide traffic within section. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. R. Co., 6 I. C. C. R. 195, 4 I. C. R. 592. Order not enforced. Int. Com. Com. v. Cin- cinnati, N. 0. & T. P. R. Co., 76 Fed. 183, 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. A pool may be formed by agreements as to routing. Consolidated Forwarding Co. v. So. Pac. Co., 9 I. C. C. R. 182, 206-a. Order enforced. Int. Com. Com. v. So. Pac. Co., 132 Fed. 829. Reversed. So. Pac. Co. v. Int. Com. Com., 200, U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330; Consoli- dated Forwarding Co. v. So. Pac. Co., 10 I. C. C. R. 590. Doubt- ful whether a pool of passenger earnings from immigrant traffic in violation of section. Re Transportation of Immigrants. 10 I. C. C. R. 13. Purpose of section to prevent restriction of com- petition. Tift V. So. Ry. Co. 10 I. C. C. R. 548. 580. Order en- forced. 138 Fed. 753 ; So. Ry. Co. v. Tift. 148 Fed. 1021 ; 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. Pooling by water carriers not within section. Cosmopolitan Shipping Co. v. Ham- burg-American P. Co., 13 I. C. C. R. 266. 274. It was not the intention of the interstate commerce act to include carriers within the Sherman Anti-Trust Act. United States v. Trans- Missouri Freight Asso., 53 Fed. 440, 1 Fed. Anti-Trust Dec. 80. Affirmed, holding that combinations in restraint of trade must be imreasonable to be illegal. United States v. Trans-Missouri Freight Asso., 58 Fed. 58, 73, 7 C. C. A. 15, 97, 24 L. R. A. 73, 1 Fed. Anti-Trust Dec. 186. Reversed, holding that the Sher- man Anti-Trust Act applies to carriers, that all contracts in re- straint of trade, whether or not such restraint is unreasonable, are illegal. United States v. Trans-lMissouri Freight Asso., 166 U. S. 290, 41 L. Ed. 1007, 17 Sup. Ct. 540, 1 Fed. Anti-Trust Dec. 648. A contract between thirty-two carriers to maintain R f^i "^ 1 Acts Regulating Commerce. 413 rates is not violative of section. United States v. Joint Traffic Asso., 76 Fed. 895, 1 Fed. Anti-Trust Dec. 615. Affirmed, 89 Fed. 1020, 32 C. C. A. 491, 45 U. S. App. 726, 1 Fed. Anti-Trust Dec. 869. Reversed, holding that any contract restricting com- petition in interstate trade is illegal. United States v. Joint Traffic Asso., 171 U. S. 505, 43 L. Ed. 259, 19 Sup. Ct. 25, 1 Fed. Anti-Trust Dec. 869. Any arrangement, oral or otherwise, re- sulting in the division of earnings of competing carriers is il- legal and violates section. Re Pooling Freights. 115 Fed. 588. Followed Int. Com. Com. v. So. Pac. Co., 132 Fed. 529, 839. Tonnage pool effective by initial carrier routing freight illegal. Int. Com. Com. v. So. Pac. Co., 123 Fed. 597, 602, 132 Fed. 829, 137 Fed. 606. Reversed, holding that practice did not con- stitute a pooling agreement. So. Pac. Co. v. Int. Com. Com., 200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330. Effect on rates of a combination to fix rates. Tift v. So. Ry. Co., 138 Fed. 753, 760, 761, 762, 763. Affirmed. So. Ry. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. § 513. Carriers shall file, print and keep public schedules of rates. — That every public carrier subject to the provisions of this act shall file with the commission created by this act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and .joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print, and keep, open to public inspection, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between whieli property and passengers will be carried, and shall con- tain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or reg- ulations wbich in any wise change, affect, or determine any part or tlie aggregate of such aforesaid rates, fares and cliarges, or the value of the service rendered to the passenger, shipper or consignee. Such schedules shall be pl.'iiiily printed in large tyi)e. 414 Acts Eegulating Commerce. [§ 513. and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are re- ceived for transportation, in such form that they shall be ac- cessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation and facilities defined in this act. Paragraph one, section six, of the act as amended June 29, 1906. For the original act and the act of March 2, 1889, see post, § 519. See Tariff Circular 15-A, Pierce's Digest, 685 et. seq., as supplemented by Tariff Circular 17-A, for regulations with ref- erence to tiling tariffs. One member of a traffic association may file tariffs for all. Re Filing Copies of Joint Tariffs by Traffic Combinations. 1 I. C. R. 76. Form of type to be used. Re Rate Sheets. 1 I. C. R. 316. Must publish tariffs of mileage tickets. Larrison v. Chi- cago & G. T. R. Co., 1 I. C. C. R. 147. 1 I. C. R. 369. Re Pub- lication of Joint Tariffs. 1 I. C. R. 598. Local tariffs part of a through tariff and export tariffs should be filed. Re Filing of Joint Tariffs. 1 I. C. C. R. 657, 2 I. C. R. 9. All tariffs should be publicly announced. Re Tariffs of the Transcontinental Lines. 2 I. C. C. R. 324, 2 I. C. R. 203. Reduction of rate with- out filing tariff showing such reduction illegal. Re Passenger Tariffs and Rate Wars. 2 I. C. C. R. 513, 2 I. C. R. 340. Meth- ods generally adopted in substantial compliance with law suf- ficient. Re Passenger Tariffs. 2 I. C. C. R. 649. 2 I. C. R. 445. Purpose of section. Re Atlanta & W. P. R. Co., 3 I. C. C. R. 75, 2 I. C. R. 480. Foreign carriers engaged in transportation from the L^nited States to an adjacent country must comply with sec- tion. Re Investigation of Grand Trunk Railway. 3 I. C. C. R. 89, 2 I. C. R. 496. On shipments intended to be exported by sea, the tariff should show rate to place of export. New York Produce Ex. v. New York C. & H. R. R. Co.. 3 I. C. C. R. 137, 2 I. C. R. 553. Passenger excursion rates must be published. Pittsburg etc. R. Co. v. Baltimore & 0. R. Co., 3 I. C. C. R. 465, 2 I. C. R. 729. Order not enforced because of error on another point. Int. Com. Com. v. B. & 0. R. Co., 43 Fed. 37, 3 I. C. R. 192, 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. Filing of schedules raises no presumption as to the legality of rates set out therein. San Bernardino Board of Trade v. A. T. & S. F. R. Co., 4 I. C. C. § 513.] Acts Regulating Comaierce. 415 R. 104, 3 I. C. R. 138. Tariffs on imported goods should be posted at the port of entry and point of destination. New York Board of Trade & Transportation v. The Penn. R. Co., 4 I. C. C. R. 447, 3 I. C. R. 417. Order enforced. Int. Com. Com. v. Tex. & Pac. Ry. Co., 52 Fed. 187, 57 Fed. 948, 6 C. C. A. 653, 20 U. S. App. 1, 4 I. C. R. 408. Reversed on another ground. Tex. & Pae. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. Must post rates whether commodity ex- ported or not. New Orleans Cotton Ex. v. Louisville, N. 0. & Tex. R. Co., 4 I. C. C. R. 694, 3 I. C. R. 523. A joint tariff must show on its face what roads concur therein. Lehman- Higginson & Co. v. Tex. & Pac. Ry. Co., 5 I. C. C. R. 44, 3 I. C. R. 706. Two rates on the same commodity should not be re- tained in the tariff when the lower rate, ostensibly is for a particular class, though actually open to all. Duncan v. A. T. & S. F. R. Co., 6 I. C. C. R. 85, 4 I. C. R. 385. Section and its construction discussed. Re Form and Contents of Rate Sche- dules. 6 I. C. C. R. 267, 4 I. C. R. 698. Mere designation in a circular of means of arriving at a rate not sufficient. Colorado Fuel & Iron Co. v. So. Pac. Co., 6 I. C. C. R. 488, 518. Order not enforced. So. Pac. Co. v. Colorado F. & I. Co., 101 Fed. 779, 42 C. C. A. 12. To use a corporation o^^•ned by a carrier to transport freight at other than the published rate violates section. Re Alleged Unlawful Rates and Practices. 7 I. C. C. R. 33. Posting notice that tariffs may be obtained from agent not sufficient. Rea v. I\I. & O. R. Co., 7 I. C. C. R. 43; Johnson V. Chicago, St. P. etc. Ry. Co., 9 I. C. C. R. 221, 237. Rules and regulations affecting aggregate of rates must be shown in tariff. Suffern, Hunt & Co. v. Indiana etc. Ry. Co., 7 I. C. C. R. 255, 272, 278, 279; American Warehousemen's Asso. v. 111. Cent. R. Co., 7 I. C. C. R. 556. Section construed with refer- ence to joint rates. New York, N. H. & H. v. Piatt, 7 I. C. C. R. 323, 331. Consolidated Forwarding Co. v. So. Pac. Co., 9 I. C. C. R. 182. Order enforced. Int. Com. Com. v. So. Pac. Co., 132 Fed. 829. Reversed. So. Pae. Co. v. Int. Com. Com., 200 T^ S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330. Through export rates to foreign countries need not be shown, it is sufficient if the car- rier to the port shows its proportion. Kemble v. Boston & A. R. Co., 8 I. C. C. R.J 10, 119. But where the through rate is made by joint arrangement between the rail and water carrier it must 1)0 pul)lished. Re Export and Domestic Rates on Grain. 416 Acts Regulating Commerce. [§513. 8 I. C. C. R. 214, 276. Re Tariffs on Export and Import Traffic. 10 I. C. C. R. 55, 63. A local state rate part of a through rate must be published. Re Export Rates from Points East and West of Mississippi River. 8 I. C. C. R. 185, 213. Rules and regu- lations relating to storage should be stated. Penn. Millers State Asso. V. Philadelphia & R. R. Co., 8 I. C. C. R. 531, 560. When rate is per crate, the weight or dimensions should be prescribed. Re Alleged Unlawful Charges for Transportation of Vegetables. 8 I. C. C. R. 585. Rates referring to regulations of and charges for private cars must be published. Carr v. N. Pac. Ry. Co., 9 I. C. C. R. 1, 15. Tariff should show division to tap line and privilege of milling in transit. Central Yellow Pine Asso. v. Vicksburg etc. R. Co., 10 I. C. C. R. 193. Charges for refrigera- tion must be shown. Re Charges for Transportation and Re- frigeration of Fruit. 10 I. C. C. R. 360, 11 I. C. C. R. 129. Sec- tion violated. Re Alleged Unlawful Rates and Practices in Transportation of Coal. 10 I. C. C. R. 473, 484. Tariffs should be simple enough to be understood by persons of ordinary com- prehension. Pitts V. St. L. & S. F. Ry. Co., 10 I. C. C. R. 684. Tariffs cannot be given a retroactive effect. Re Through Routes and Through Rates. 12 I. C. C. R. 163. Privilege of stopping in traffic to sort, etc., must be stated. Shiel & Co. v. 111. Cent. R. Co., 12 I. C. C. R. 210. A toll charge not paid should not be stated in tariff. Pacific Coast Jobbers & Mfgrs. Asso. v. So. Pa. Co., 12 I. C. C. R. 319. Mistake of agent in stating rate will not relieve from tariff rates. Poor v. Chicago, B. & Q. Ry. Co., 12 I. C. C. R. 418, 469, citing and following Texas & Pac. Ry. Co. V. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628. Gulf C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802. See recommendation of Int. Com. Com. in an- nual report for 1908. Carrier making delivery at its cost should so state in tariff. Schwager & Nettleton v. Great N. Ry. Co., 12 I. C. C. R. 521. Misleading, unreasonable or impossible con- ditions should not be stated in tariffs. Re Released Rates. 13 I. C. C. R. 556. No allowance not specified in tariffs can be al- lowed. La Salle etc. .R. Co. v. Chicago & N. W. Ry. Co., 13 I. C. C. R. 610. Tariff filed with commission binding though not posted. Pueblo Transportation Asso. v. So. Pac. Co., 14 I. C. C. R. 82. Allowance made to shippers for cost of car door boards must be stated. Victor Fuel Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. R. 119. So must reconsignment, storage and all other § 513.] Acts Eegulating Commerce. 417 privileges. Folmer & Co. v. Great N. Ky. Co., 15 I. C. C. R. 33, 36. Transportation by a railroad of employees of express com- panies engaged along the line of the railroad need not show in tariffs. Re Contracts for Free Transportation. 16 I. C. C. R. 246, 249. Tariffs are to be construed by their language and not by traffic officials. Newton Gum. Co. v. Chicago, B. & Q. R. Co., 16 I. C. C. R. 341, 346. Section requires the filing of schedules, and when such schedules are filed, they show the only legal rates. Kinnavey v. Terminal R. Asso. of St. Louis, 81 Fed. 802. A re- ceiver of a railroad is not bound by a tariff filed before his ap- pointment and which he has not ratified. United States v. De Coursey, 82 Fed. 302. When a higher rate is charged than the rate given the shipper, because of misrouting, the shipper can recover the difference between the rate given him and the one he was compelled to pay. Pond-Decker Lumber Co. v. Spencer, 86 Fed. 846, 849, 30 C. C. A. 430. reversing 81 Fed. 277. Sec- tion discussed. United States v. Wood, 142 Fed. 405, 408, 409. The purpose of publication is that the shipper may know not only what he but also what his competitor must pay. United States V. Chicago & A. Ry. Co., 148 Fed. 646, 648, Assumed, without a definite discussion, that icing charges may be stated separately in schedules. Knudsen-Ferguson Fruit Co. v. Llicli. Cent. R. Co., 148 Fed. 968, 971. Shipment of goods on through bill of lading from United States to a foreign coimtry subject to the requirements of the section. Armour Packing Co. v. United States, 153 Fed. 1, 10, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400. Affirmed. 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428. Cannot evade section when tariffs show a through route by transporting property over another route. United States V. Vacuum Oil Co., 153 Fed. 598. A provision in a pas- senger ticket not shown in the schedule is unlawful and void. Baltimore & 0. R. Co. v. Hamburger, 155 Fed. 849. When a schedule of rates includes a charge over private tracks, such charge must be collected. Chicago & A. Ry. Co. v. United States, 156 Fed. 558, 84 C. C. A. 324, affirming 148 Fed. 646. So also with reference to an elevator charge and no defense that such payment had to be made to get the business. Chicago, St. P., M. & 0. Ry. Co. V. United States, 162 Fed. 835, C. C. A. , affirming United States v. Chicago, St. P., M. & 0. Ry. Co., 151 Fed. 84. The legality of a terminal charge separately stated must be determined by itself and without reference to the total 418 Acts Regulating Commerce. [§ 514. charge for the through movement. Stiekncy v. Int. Com. Com., 164 Fed. 638. A mistake in quoting a published rate does not justify a deviation therefrom. Gulf, Col. & S. F. Ry. Co. v. Ilefiey, 158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802 ; Texas & Pac. Ry. Co. v. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628; Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 444, 51 L. Ed. 553, 560, 561, 27 Sup. Ct. 350. Free cartage furnished openly and notoriously for a quarter of a century need not be stated prior to act June 29, 1906, in ab- sence of a requirement of the commission therefor. Int. Com. Com. v. Detroit, G. H. & M. Ry. Co., 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. IMay under this section make a distinct charge for the terminal road when separately stated in tariffs. Int. Com. Com. v. Chicago, B. & Q. R. Co., 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824. Nothing in section prevents the initial carrier from retaining the right to route freight. So. Pac. Co. v. Int. Com. Com., 20.0 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 330. Rates are established when filed with Interstate Commerce Commission though not posted. Tex. & Pac. Ry. Co. v. Cisco Oil i\rill, 204 IT. S. 449, 51 L. Ed. 562, 27 Sup. Ct. 358. § 514. Regulations as to printing and posting schedules of rates for freight moving through foreign countries from and to any place in the United States. — Any common carrier subject to the provisions of this act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it ac- cepts freight for shipment; and any freight shipped from the United States through a foreign country into the United States the through rate on which shall not have been made public, as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. Paragraph two of section six. Paragraph as originally enact- ed. For annotations see next preceding section. § 515. No change of schedules of rates shall be made without notice. — Xo change shall be made in the rates, fares, and charges, or joint rates, fares, and charges, which have been filed and § 516.] Acts Regulating Commerce. 419 published by any common carrier in compliance with the re- quirements of this section, except after thirty clays' notice to the commission and to the public published as aforesaid, ^Yhich shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be sho\ATi by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection : Provided, That the commission may, in its discre- tion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting and filing tariffs, either in particular instances or by a general order applicable to spe- cial or peculiar circumstances or conditions. Paragraph three of section six as amended by act June 29, 1906. For the original act of March 2, 1889 see post, § 519. For administrative rulings, see tariff circulars 15-A and 16-A, Pierce's Digest, 685 et. seq., as supplemented by tariff circular 17-A, and conference rulings id. 789 et. seq. Time to be com- puted from day that notice reaches the office of commission. Circular March 23, 1889, 2 I. C. C. R. 656. Export rates can not be varied from day to day to meet fluctuation. New York Produce Ex. v. New York C. & H. R. R. Co., 3 I. C. C. R. 137, 2 I. C. R. 553. § 516. Names of all carriers parties to schedules must be specified. — The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the commission, and where such evidence of concurrence or acceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. New paragraph of section six added by act June 29, 1906. Evidence of an agreement to a joint tariff should be a matter of record. Re Form and Contents of Rate Schedules. 6 I. C. C. R. 267, 279, 4 I. C. R. 698, 702. Joint rate can only be made by concurrence or assent. New York, N. H. & IT. R. Co. v. Piatt, 7 I. C. C. R. 323. 333. § 517. Carriers shall file contracts relating to traffic arrange- ments. — Every common carrier subject to this act shall also file 420 Acts Regulating Commerce. [§ 518. with said coniniission copies of all contracts, agreements, or ar- rangements* with other common carriers in relation to any traf- fic affected by the provisions of this act to which it may be a party. Paragraph five of section six substantially as in original act, the words "subject to this act" being added by act June 29, 1906. Contracts and agreements for joint rates must be filed. § 59, tariff circular 15-A, as supplemented by tariff circular 17-A. So must carriers' contracts -for telephone and telegraph service, id. 64. Express companies must file contracts for joint rates. Tariff circular 16-A, § 32. § 518. Commission may prescribe form of schedules. — The commission may determine and prescribe the form in which the schedules required by this section to be kept open to public in- spection shall be prepared and arranged and may change the form from time to time as shall be found expedient. Paragraph six, section six, of present act, added ]\Iarch 2, 1889. Tariff schedules 15-A, 16-A and 17-A, are issued by the Inter- state Commerce Commission under authority of this paragraph. Pierce's Digest 685 to 805. Charges should be clearly and defi- nitely stated so that the public can easily determine the rate. Colorado Fuel and Iron Co. v. So. Pac. Co., 6 I. C. C. R. 488, 518. § 519. No carrier shall participate in interstate commerce un- less the charges therefor are published, and no such carrier shall deviate from the published schedules. — No carrier, unless other- wise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in ac- cordance with the provisions of this act ; nor shall any carrier charge or demand or collect or receive a greater or less or dif- ferent compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities § 519.] Acts Regulating Commerce. 421 in the transportation of passengers or propertj^ except such as are specified in such tariffs : Provided, That wherever the word "carrier" occurs in this act it shall be held to mean ''common carrier. ' ' Paragraph seven of section six, being amended by acts of June 29, 1906 and March 2, 1889. Section six of the original act read : "That every common carrier subject to the provisions of this act shall print and keep for public inspection schedules show- ing the rates and fares and charges for the transportation of passengers and property which any such common carrier has es- tablished and which are in force at the time upon its railroad, as defined by the first section of this act. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried and shall contain the classification of freight in force upon such railroad, and shall also state separately the terminal charges and any rules or regulations which in any wise change, effect or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, of at least the size of ordinary pica, and copies for the use of the public shall be kept in every depot or station upon anj' such railroad, in such places and in such form that they can be conveniently inspected. "Any common carrier subject to the provisions of this act re- ceiving freight in the United States to be carried through a for- eign country to any place in the United States shall also in like manner print and keep for public inspection, at every depot where such freight is received for shipment, schedules showing the through rates established and charged by such common car- rier to all points in the United States bej^ond the foreign coun- try 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 ad- mitted into the United States from said foreign country, be sub- ject to customs duties as if said freight were of foreign pro- duction ; and any law in conflict willi this section is liereliy re- pealed. "Xo advance sh;ill be made in the rates, fares and charges which have been established and published as aforesaid by any 422 Acts Regulating Commerce. [§ 519. 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 for public inspection. Reductions in such published rates, fares, or charges may be made without previous notice; but whenever any such reduc- tion is made, notice of the same shall immediatelj^ be publicly posted and the changes made shall immediately be plainly in- dicated upon the schedules at the time in force and kept for pub- lic inspection. "And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of tliis section, it shall be unlawful for such com- mon carrier to charge, demand, collect, or receive from any per- son or persons a greater or less compensation for the transporta- tion of passengers or property, or for any service in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force. ''Every common carrier subject to the provisions of this act shall file with the commission hereinafter provided for copies of its schedules of rates, fares, and charges which have been es- tablished 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 practicable; and said commission shall from time to ti]ne prescribe the measure of publicity which § 519.] Acts Eegulating Commerce. 423 shall be given to such rates, fares, and charges, or to such part of them as it may deem practicable for such common carriers to publish, and the places in which they shall be published ; but no common carrier party to any such joint tariff shall be liable for the failure of any other common carrier party thereto to observe and adhere to the rates, fares, or charges thus made and pub- lished. "If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district wherein the prin- cipal office of said cormnon carrier is situated or wherein such offense may be committed, and if such common carrier be a for- eign corporation, in the judicial circuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with the aforesaid provisions of this sec- tion ; and such writ shall issue in the name of the people of the United States, at the relation of the commissioners appointed under the provisions of this act ; and failure to comply with its requirements 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 injunction against such common carrier, to restrain such common carrier from receiving or transporting property among the several states and territories of the United States, or between the United States and adjacent foreign coimtries, or between ports of trans- shipment and of entry and the several states and territories of the United States, as mentioned in the first section of this act, until such common carrier shall have complied with the afore- said provisions of this section of this act." Section six of the act of March 2, 1889, read : "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 common carrier has estab- lished 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 prop- erty and passengers will be carried, and shall contain the class!- 424 Acts Regulating Commerce. [§ 519. fication 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 pub- lie shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier w'here passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be con- veniently inspected. "Any common carrier subject to the provisions of this act re- ceiving freight in the United States to be carried through a for- eign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, sche- dules showing the through rates established and charged by such common carrier to all points in the United States beyond, the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a for- eign country into the United States, the through rate on which shall not have been made public as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production ; and any law in conflict with this section is hereby repealed. "No advance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Reductions in such published rates, fares or charges shall only be made after three days' previous public notice, to be given in the same manner that notice of an advance in rates must be given. "And Avhen 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 com- § 519.] Acts Regulating Commerce. 425 mon carrier to charge, demand, 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 there- with, than is specified in such published schedule of rates, fares, and charges as may at the time be in force. "Every common carrier subject to the provisions of this act shall file with the commission hereinafter provided for copies of its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said commission of all changes made in the same. Every such common carrier shall also file with said commission copies of all contracts, 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 com- mission, be deemed practicable; and said commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem practicable for such common carrier to publish, and the places in which they shall be published. "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 schedules then in force, and the time when the increased rates, fares, or charges will go into effect. No reduc- tion shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the commission as is above provided in the case of an advance of joint rates. The com- mission may make public such proposed advances, or such re- ductions, in such manner as may, in its judgment, be deemed practical, and may prescribe from time to time the measure of publicity which common carriers shall give to advances or re- ductions in joint tariffs. 426 Acts Eegulating Commerce. [§ 519. ''It shall be unlawful for an}^ common carrier, party to any joint tariff, to charge, demand, collect, or receive from any per- son or persons a greater or less compensation for the transporta- tion of persons or property, or for any services 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 conmiission in force at the time. "The commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged, and may change the form from time to time as shall be found expedient. "If any such common carrier shall neglect or refuse to tilb or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such com- mon carrier shall, in addition to other penalties herein pre- scribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district wherein the principal office of said common carrier is situated, or wherein such offense may be committed, and if such common carrier be a foreign corporation in the judicial circuit wlierein such common carrier accepts traffic and has an agent to perform such ser- vice, to compel compliance w-ith 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 provisions of this act ; and the failure to comply with its requirements 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 injimction against such common carrier, to restrain such common carrier from receiving or transporting property among the several states and territories of the United States, or between the United States and adjacent foreign countries, or between ports of trans- shipment 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." See annotations, supra, under other paragraphs of section six of the Act to Regulate Commerce. Reductions in passenger rates should not be made without a change showing such reductions in the tariffs. Re Passenger Tariffs and Rate Wars. 2 I. C. C. R. 513, 2 I. C. R. 340. When Acts Regt'latixg Commerce. 427 no joint rates are published, the combination of the locals is the legal rate. Ee Passenger Tariffs. 2 I. C. C. K. 649, 2 I. C. R. 445; Lehman, Higginson & Co. v. Tex. & Pac. R. Co., 5 I. C. C. R. 44, 3 I. C. R. 706. A carrier must collect its local rate unless it has joined in a joint tariff. New York, N. H. & H. R. Co. V. Piatt, 7 I. C. C. R. 323. All rules and regulations affect- ing rates should show on the tariffs. Spillers & Co. v. L. & N. R. Co., 8 I. C. C. R. 364. Tariffs can not be given a retro- active effect. Re Through Routes and Through Rates. 12 I. C. C. R. 163. JMistake of agent in giving rate will not justify deviation from tariff rate. Poor Grain Co. v. C, B. & Q. Ry. Co., 12 I. C. C. R. 418, 421 and 469, citing Gulf, C. & S. F. Ry. Co. V. Hefiey, 158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802; Tex. & Pac. Ry. Co. v. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628. The through rate shown by the tariff is the lawful rate for a through shipment, although the combination of locals is less. Morgan v. M. K. & T. Ry. Co., 12 I. C. C. R. 525. Section construed and statement made of what an indictment for its violation should contain. United States v. Penn. R. Co., 153 Fed. 625; United States v. New York C. & H. R. R. Co.', 153 Fed. 630. Act not unconstitutional because published rate fixed as legal rate. United States v. Standard Oil Co., of Indiana, 155 Fed. 305. Reversed on other groimds. Standard Oil Co. of Indiana v. United States, 164 Fed. 376 ; see also United States V. Vacuum Oil Co., 158 Fed. 536. § 520. Preference and precedence may be given military traffic in time of war.— That in time of war or threatened war prefer- ence and precedence shall, upon the demand of the President of the United States, be given, over all other traffic, to the trans- portation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic. A new paragraph, paragraph eight, added to section six by Act Jime 29, 3906. § 521. Corporations violating the act to regulate commerce guilty as individuals and punishment prescribed.— Tluit anything done or omitted to be done by a corporation common carrier, subject to the act to regulate commerce and the acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a 428 Acts Regulating Commerce. [§522. misdemeanor under said acts or under this act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are pre- scribed in said acts or by this act with reference to such persons, except as such penalties are herein changed. The wilful failure upon the part of any carrier subject to said acts to file and pub- lish the tariffs of rates and charges as required by said acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the cor- poration offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense. First part of section one. Act February 19, 1903, known as the ''Elkins Act." Prior to this act onh^ the agents of the corporations could be guilt}^ of criminal offenses against the act to regulate commerce. United States v. Milwaukee Refrigerator Transit So., 142 Fed. 247, 249. A carrier and its agents may be prosecuted under the same indictment. United States v. New York C. & H. R. R. Co., 146 Fed. 298. Affirmed by the Supreme Court, holding that the act was not unconstitutional in imputing to a corporation a crim- inal offense. New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. , 29 Sup. Ct. 304. § 522. Rebate. Punishment for offering-, granting, soliciting or accepting. — And it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept or re- ceive any rebate, concession, or discrimination in respect (to) the transportation of any property in interstate or foreign com- merce by any common carrier subject to said act to regulate com- merce and the acts amendatory (thereof) whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory (thereof,) or whereby any other advantage is given or discrimination is practiced. Every person or corpora- tion or person (whether carrier or shipper) who shall, (know- ingly,) offer, grant, or give, or solicit, accept, or receive any such rebates, concessions or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars : (Provided, That any person, or any § 522.] Acts Regulating Commerce. 429 ofificer or director of any corporation subject to the provisions of this act, or the act to regulate commerce and the acts amenda- tory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein pro- vided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprison- ment, in the discretion of the court.) Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted ; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jur- isdiction in the same manner as if the offense had been actually and whollj^ committed therein. Second part of section one of act February 19, 1903, substan- tially as enacted, the amendments of June 29, 1906, being in- closed in brackets, the part of the original act stricken by the amended act was as follows: "In all convictions occurring after the passage of this act for offenses under said acts to regulate commerce, whether commit- ted before or after the passage of this act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine prescribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished." Before the passage of the Elkins law it was held that as the question of whether or not the facts and circumstances consti- tuted unjust or illegal discrimination must be left to a jury there could be no certainty as to whether or not a particular act was criminal, and, therefore, there could be no criminal punishment for violating section three of the act. Tozer v. United States, 52 Fed. 917. But a conviction against an agent of a carrier could be had under section ten for transporting for less than the published rate. United States v. I\Iich. Cent. R. Co., 43 Fed. 26. No conviction for receiving a rebate from a joint rate not filed and published. United States v. Wood, 145 Fed. 405. A consignee may be guilty as well as a consignor. The Hepburn law did not affect offenses committed prior to its passage. Unit- ed States V. Standard Oil Co., 148 Fed. 719, 155 Fed. 305. Re- versed on other grounds. Standard Oil Co. v. United States^ 430 Acts Regulating Commerce. [§522. 164 Fed. 376, C. C. A. See also that offenses not affected by section ten of the Hepburn act. United States v. Chicago, St. P., I\r. & 0. Ry. Co., 151 Fed. 84; TTnited States v. New York C. & H. R. R. Co., 153 Fed. 630. Offenses hereunder may be prosecuted by information. United States v. Camden Iron Works, 150 Fed. 214. Reversed, 158 Fed. 561, 85 C. C. A. 585, because the initial carrier which paid the rebate had filed no through schedule of rates with the commission. A shipment from one point to another in New York State but passing through another state is interstate commerce and subject to this law. Also holding that section ten of Hepburn law did not affect prosecution for offenses committed prior thereto. TTnited States V. Delaware, L. & W. R. Co., 152 Fed. 269. Death before the fine is paid abates the judgment. United States v. Pomeroy, 152 Fed. 279. Reversed, because the circuit court had no power to act, an appeal having been taken. United States v. New York C. & H. R. R. Co., 164 Fed. 324, C. C. A. . Act con- stitutional. Crime may be punished in any district through which the transportation is conducted. Contract to maintain established rates ineffective after a higher rate has been filed and published. Armour Packing Co. v. United States, 153 Fed. 1, 82 C. C. A. 135. 14 L. R. A. (N. S.) 400. Affirmed. 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428. See note to law edition. Section not restricted to departures from tariff rates, but act applies to all illegal discriminations. United States v. Vacuum Oil Co., 153 Fed. 598. Defective indictments for discrimina- tion. United States v. B. & 0. R. Co., 153 Fed. 997. The extent stated to which section one of Elkins act Avas repealed by Hep- burn law. Great Northern Ry. Co. v. United States, 155 Fed. 945. Affirmed, holding that the right to prosecute for an offense committed prior to the Hepburn law was not taken away by that law. Great N. R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 Sup. Ct. . Same effect and holding act not un- constitutional. United States v. Great N. R. Co., 157 Fed. 288. Where tariff filed by another no crime. United States v. New York C. & H. R. R. Co.. 157 Fed. 293. Act not imconstitutional and applies to a carrier wholly within a state when it joins in the published through rate. United States v. Vacuum Oil Co.. 158 Fed. 536. Act applies to express companies. The failure to use the word "unjust" before ''discrimination" in new act does not broaden effect of act as amended. United States v. Wells § 523.] Acts Regulating Commerce. 431 Fargo Ex. Co., 161 Fed. 606. Applies to refunding elevator charges when no provision in tariff therefor. Chicago, St. P., M. S^ 0. Ry. Co. V. United States, 162 Fed. 835. No defense that rebate granted in compromise of claims for loss of property in transit. United States v. A. T. & S. F. Ry. Co., 163 Fed. 111. Each shipment upon which a rebate is actually paid, regardless of its size, is a separate offense. No crime unless and until pay- ment is made. Standard Oil Co. of Indiana v. United States, 164 Fed. 376, C. C. A. . Each rebate payment, regard- less of number of shipments, constitutes a separate offense; not decided whether or not each separate agreement to pay a rebate would constitute an offense. United States v. Stearns Salt & Lumber Co., 165 Fed. 735. Each payment, although covering more than one shipment, constitutes one and only one offense. United States v. Bimch, 165 Fed. 736. Prosecution for failure to file schedules must be at Washington, D. C. "Rates in force" defined. New York C. & H. R. R. Co. v. United States, 166 Fed. 267, C. C. A. , reversing 153 Fed. 630. The device by which a rebate is granted is illegal even though not secret or fraudulent. Violations may be tried in any district through which the transportation is had. Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428; Chicago, B. & Q. R. Co. V. United States, 209 U. S. 90, 52 L. Ed. 698, 28 Sup. Ct. . Where full rate is paid and rebate granted at intervals, upon claims being filed therefor, each rebate payment consti- tutes a separate offense. New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 498, 53 L. Ed. , 29 Sup. Ct. . Same style case, 212 U. S. 500, 53 L. Ed. , 29 Sup. Ct. . A party to a joint rate, though not filed and published by it, may be guilty. United States v. New York C. & H. R. R. Co., 212 U. S. 509, 53 L. Ed. , 29 Sup. Ct. . Where the shipper pays the legal rate and at intervals receives a rebate, each paj^- nient thereof is a separate offense. New York C. & H. R. R. Co. V. United States, 212 U. S. 481, 53 L. Ed. , 29 Sup. Ct. . § 523. Act of officer or agent, when binding. — In construing and enforcing the provisions of lliis section, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to bo the act, omission, or f;iilurc of such carrier or shipper as H'C]] (^3 that of the person. •i;^2 Acts Regulating Commerce. [§ 524. Second paragraph of section one of the original Elkins act, except the act of June 29, 1906, added the words ''or shipper" after ''carrier" where it occurs. Because the act of the agent is the act of the corporation, both may be included in one indictment. New York C. & H. R. R. Co. V. United States, 212 U. S. 481, 53 L. Ed. , 29 Sup. Ct. § 524. Carrier filing or participating in rate bound thereby. — Whenever any carrier files Avith the Interstate Commerce Com- mission or publishes a particular rate under the provisions of the act to regulate commerce or acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any- offer to de- part therefrom, shall be deemed to be an offense under this sec- tion of this act. Part of second paragraph of section one, Elkins act, as origin- ally exacted, except "thereof" was substituted for "thereto," in the act of June 29, 1906. § 525. Forfeiture for rebating in addition to penalties. Lim- itation of six years fixed. — Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this act. or for whom, as consignor or consignee, any such carrier shall trans- port property from one state, territory, or the District of Co- lumbia, or foreign country, who shall laiowingly by employee, agent, officer, or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable con- sideration as a rebate or offset against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this act. shall in addition to any penalties provided by this act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and the Attorney- General of the United States is authorized and directed, Avhen- ever he has reasonable grounds to believe that any such person, corporation, or companj^ has Icnowingly received or accepted from any such common carrier any sum of money or other val- § 526.] Acts Regulating Commerce. 433 liable consideration as a rebate or offset as aforesaid, to in- stitute in any court of the United States of competent jurisdic- tion a civil action to collect the said sum or sums so forfeited as aforesaid; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six. years prior to the commencement of the action may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be. New provision added to section one, Elkins act, by act June 29, 1906. § 526. Contracts and combinations to prevent continuous car- riage of freight prohibited. — That it shall be imlawful for any connnon carrier subject to the provisions of this act to enter into any combination, contract, or agreement, express or implied, to prevent, by change of time schedule, carriage in different cars, or by other means and devices, the carriage of freights from being continuous from the place of shipment to the place of des- tination ; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, imless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or un- necessarily interrupt such continuous carriage or to evade any of the provisions of this act. Section seven of the original act to regulate commerce. An injunction may be granted to prevent a carrier and its employees from refusing to receive passengers and commodities from a connecting line. Toledo, A. A. & N. M. Ry. Co. v. Penn. Co., 54 Fed. 730, 746, 19 L. R. A. 387, 5 I. C. C. R. 545, 22 U. S. App. 561. § 527. Damages and attorneys fees allowed for violations. — That in case any common carrier subject to the provisions of this act shall do. cause to be done, or permit to be done any act. matter, or thing in this act jirohibitcd or declared to be unlaw- ful, or shall omit to do any act, matter, or thing in this act re- quired to be done, such common carrier shall ])o liable to the |)erson or persons injured thereby for Ihc full jiiiioiint of dam- ages sustained in conser|uonce of any such violalion of the pro- 434 Acts Regulating Commerce. [§ 528. visions of this act, together with a reasonable counsel or attor- ney'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. Section eight of original act. For nnnotations see next suc- ceeding section. § 528. Where to sue for damages. Compulsory attendance of witnesses and production of papers. — 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 com- mission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of compe- tent 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 pro- vided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or com- pany party to any such suit; 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. Section nine of the original act. Sections eight and nine are so related that the annotations herein apply to each. There are many cases, formal and in- formal, awarding reparation without announcing any rule or principle. These ape not sufficiently important to be cited. The commission can not award damages for failure to furnish cars, an action therefor must be brought in a case at common law. Heck V. East Tenn., Va. & Ga. Ry. Co., 1 I. C. C. R. 495, 1 I. C. R. 775; Riddle v. New York, L. E. & W. R. Co., 1 I. C. C. R. 594, 1 I. C. R. 787. These cases were decided before the amendment to section sixteen by act March 2, 1889, and since said amendment are not followed. Rawson v. Newport N. & § 528.] Acts Regulating Commerce. 435 M. V. R. Co., 3 I. C. C. R. 6, 2 I. C. R. 626; MacLoon v. Chi- cago & N. W. R. Co., 5 I. C. C. R. 84, 3 I. C. R. 711. When a shipper gives instructions as to how his freight shall be routed, a violation of said instructions to his injury author- izes a recovery of the damage sustained. Pankey v. Richmond & D. R. Co., 3 I. C. C. R. 658, 3 I. C. R. 33; Rea v. M. & 0. R. Co., 7 I. C. C. R. 43. But if no instructions are given, carrier may route. Dewey Bros. Co. v. B. & 0. R. Co., 11 I. C. C. R. 481. But carrier must forward shipments with due regard to rights of shipper, and upon failure to do so, reparation allowed. Hennepin Paper Co. v. N. Pac. Ry. Co., 12 I. C. C. R. 535. These sections with reference to reparation show an intention upon the part of Congress to give the commission power to fix rates. Perry v. Florida C. & P. R. Co., 5 I. C. C. R. 97, 3 I. C. R. 740, 746, citing a large number of cases in which the com- mission had fixed reasonable rates. A money order for repara- tion may issue against a receiver of a carrier. Loud v. South Carolina R. Co., 5 I. C. C. R. 529, 4 I. C. R. 205. Rate reduced, but, under the circumstances of the case, reparation denied. James & Abbott v. Canadian Pac. R. Co., 5 I. C. C. R. 612, 4 I. C. R. 274, 283. Remedy for damages caused by delay, rotting, or other deterioration, or damage, not caused by a violation of the act is in the courts. Duncan v. A. T. & S. F. R. Co., 6 I. C. C. R. 85, 4 I. C. R. 385. Each carrier participating in an over- charge is liable for the amount thereof, and when an association complains against a rate, each of its members at the time of the hearing is entitled to reparation. Independent Refiners' Asso. V. Western New York & Penn. R. Co., 6 I. C. C. R. 378, 384. Order not enforced. AVestern New York & Penn. R. Co. v. Penn. Refining Co., 137 Fed. 343. A supplemental petition praying rcparatifm filed two and a half years after an order declaring a rate illegal, dismissed. Rice etc. v. Western ,N. Y. & Penn. R. Co., 6 I. C. C. R. 455. A discriminatory rate, though itself rea- sonable, justifies an order of reparation. Board of Trade of Lynchburg v. Old Dominion S. S. Co., 6 I. C. C. R. 632, 645. Order of reparation must be based on evidence that rate was un- reasonable when paid. Grain Shippers' Asso. v. 111. Cent. R. Co., 8 I. C. C. R. 158. Remedy by way of damages for unlawful rate is entirely inadequate and inconsistent. McGrew v. Mo. Pac. Ry. Co., 8 I. C. C. R. 630, 642. Rates reduced l)nt repara- tion denied. Johnson v. Chicago, St. P., M. & 0. R, Co., 9 I. 436 Acts Regulating Commerce. [§ 528. C. C. R. 221, 244. Shipments owned by several parties may be made under one bill of lading in the name of one consignor to one consignee at car load ratefj. Buckeye Buggy Co. v. Cleve- land etc. Ry. Co., 9 I. C. C. R. 626; California Com. Asso. v. Wells Fargo Ex. Co., 14 I. C. C. R. 422; Export Shipping Co. V. Wabash R. Co., 14 I. C. C. R. 437. Sections constitutional, as trial by .jury may be had when order of commission sued on. Cattle Raisers' Asso. v. Chicago, Burlington & Q. R. Co., 10 I. C. C. R. 83. The measure of damages is the difference between what should have been paid and what was exacted. Where a shipper pays less than he should with the consent of the carrier, the carrier cannot recover the balance of the lawful rate. Gard- ner V. So. Ry. Co., 10 I. C. C. R. 342. 350. 351. When com- plainants refused to buy ties because of a failure of a carrier to furnish ears, they could recover the profit they would have made had they bought the ties and been enabled to ship them. Pax- ton Tie Co. V. Detroit S. R. Co., 10 I. C. C. R. 422, 426. Such failure to furnish cars must constitute discrimination and the proof of damages must be clear. Richmond Elevator Co. v. Pere Marquette R. Co., 10 I. C. C. R. 629, 636. When a com- bination of locals was less than the through rate and a carrier refused to let a shipper ship so as to use the two locals, the ship- per could recover reparation on all local shipments. Hope Cot- ton Oil Co. V. Tex. & Pac. Ry. Co., 10 I. C. C. R. 696. Right not barred by pending suit in state court, otherwise if suit was pending in a federal court. Gallogly v. Cincinnati, H. & D. Ry. Co., 11 I. C. C. R. 1, 9. After decision as to rate retained for further proceedings as to reparation. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 11 I. C. C. R. 277. Profits may be re- covered for discrimination, but reparation is not measured by the probability of profit. Eaton v. Cincinnati, H. & D. Ry. Co., 11 I. C. C. R. 619, 626. Reparation allowed only from date com- plainant wrote a letter to commission complaining of rate. Texas Cement Plaster Co. v. St. L. & S. F. R. Co., 12 I. C. C. R. 68, 73. Reparation for breach of contract for a privilege not in the tariff cannot be allowed. Shiel & Co. v. 111. Cent. R. Co.. 12 I. C. C. R. 210. Claim for reparation should be made in original complaint. Dallas Freight Bureau v. Gulf, C. & S. F. Ry. Co., 12 I. C. C. R. 223. For detriment to business directly and proximately resulting from discrimination, reparation may be awarded. Rogers & Co. v. Philadelphia & R. R. Co., 12 I. § 528.] Acts Regulating Commerce. 437 C. C. R. 308. Cannot recover because a rate less than the tariff rate is quoted and relied upon. Poor v. Chicago, B. & Q. R. Co., 12 I. C. C. R. 418, 423. 469. Reparation does not follow re- duction of rate as a matter of course. P"'armers Warehouse Co. V. L. & N. R. Co., 12 I. C. C. R. 457. Paper rate not a basis for reparation. ]Mo. & Kans. Shippers' Assn. y. ]M. K. & T. Ry. Co., 12 I. C. C. R. 483. The mere fact that a charge is discontinued or a rate reduced will not require the granting of reparation. Leonard v. Chicago, M. & St. P. Ry. Co., 12 I. C. C. R. 492. Reparation not allowed when a through rate in excess of the locals is paid on a through shipment. Morgan v. M. K. & T. Ry. Co., 12 I. C. C. R. 525. Shippers by reshipping may take advantage of the locals less than the through rate. Laning- Harris Coal & Grain Co. v. Mo. Pac. Ry. Co., 13 I. C. C. R. 154. When shippers designate the route, they Are not entitled to reparation because there was a cheaper route. Stedman v. Chicago & N. W. Ry. Co., 13 I. C. C. R. 167; William Larsen Canning Co. v. Chicago, & N. W. Ry. Co., 13 I. C. C. R. 286. Though a shipper must pay the rates legally established, he may recover the excess over a reasonable rate. Coomes v. Chicago, M. & St. P. Ry. Co., 13 I. C. C. R. 192. Protest when paying freight mmecessary. Baer Bros. Mercantile Co. v. Mo. Pac. Ry. Co.. 13 I. C. C. R. 329 ; So. Pine Lumber Co. v. So. Ry. Co., 14 I. C. C. R. 195; Nicola, Stone & Myers Co. v. L. & N. R. Co., 14 I. C. C. R. 199. Complaint in name of an association not naming persons in whose behalf it is filed and not stating with reasonable particularity the shipments on which reparation is sought not sufficient to stop limitation. ]\Iissouri & Kansas Ship- pers' Asso. V. A. T. & S. F. Ry. Co.. 13 I. C. C. R. 411. Informal written presentation of claim stops limitation. Venus v. St. L., I. M. & S. Ry. Co.. 15 L C. C. R. 136. Reparation allowed only from date of filing supplemental petition. Cattle Raisers' Asso. V. :\r. K. & T. Ry. Co., 13 I. C. C. R. 418. AYhere reduced rates have been received because of irregularities, correction of such no ground for reparation. Bannon v. So. Ex. Co., 13 I. C. C. R. 516. Reparation awarded for refusing party rate ticket to one when granted to others. Koch Secret Service v. L. & N. R. Co., 13 I. C. C. R. 523. Reparation awarded for advancing a rate put in at tbc request of a shipper ^\■ho had adjusted his business to the lower rate. New Albany Furniture Co. v. Mo- bile etc. R. Co., 13 L C. C. R. 504. Commission has no juris- 438 Acts Eegulating Commerce. [§ 528. diction to award damages for breach of contract. La Salle etc. R. Co. V. Chicago & N. W. R. Co., 3 3 I. C. C. R. 610. Excess rate paid may be recovered though shipper not damaged. Bur- gess V. Transcontinental Freight Bureau, 13 I. C. C. R. 668. Reparation allowed only from date of filing complaint, id. Voluntary reduction of rate not conclusive of right to reparation for paying the higher rate. Ottumwa Bridge Co. v. Chicago, M. & St. P. Ry. Co., 14 I. C. C. R. 121. The true owner paying the excessive charge can alone recover. Manufacturers selling F. 0. B. their mills cannot recover. Nicola, Stone & INIyers Co. V. L. & N. R. Co., 14 I. C. C. R. 199. Mistake in quoting rate not relieve shipper from paying full tariff! rate. Foster Bros. Co. V. Duluth etc. Ry. Co., 14 I. C. C. R. 232, 236. Misrouting at the highest rate entitles shipper to reparation. I\IeCaull-Dins- more Co. v. Chicag'o G. W. Ry. Co., 14 I. C. C. R. 527; Cedar Hill Coal & Coke Co. v. Col. So. Ry. Co., 14 I. C. C. R. 606; Gus Momsen & Co. v. Gila Valley etc. Ry. Co., 14 I. C. C. R. 614. Reparation allowed because through rate exceeded sum of locals. ]\linneapolis Threshing Mch. Co. v. Chicago, j\1. & St. P. Ry. Co., 14 I. C. C. R. 536; Sylvester V. Penn. R. Co., 14 I. C. C. R. 573 ; Hardenberg, D. & G. v. N. Pac. Ry. Co., 14 I. C. C. R. 579. In allowing reparation commission takes no account of fact that less than tariff rate was paid and must assume that full rate was paid. Wilson v. Chicago, M. & St. P. Ry. Co., 14 I. C. C. R. 549, 550. When a car of particular capacity is ordered and one of higher capacity furnished, rate should be based on ca- pacity of car ordered. Am. Lumber & Mfg. Co. v. So. Pac. Co., 14 I. C. C. R. 561. Commission no authority to adjudicate a claim against a shipper. Laning-Harris Coal & Grain Co. v. St. Louis & S. F. R. Co., 15 I. C. C. R. 37. Reparation not awarded in this case where carrier voluntarily reduced rate. Menefee Lumber Co. v. Tex. & Pac. Ry. Co., 15 I. C. C. R. 49. Cannot aw^ard reparation for failure to make prompt delivery. Blume & Co. v. Wells Fargo and Co., 15 I. C. C. A. 53, 55. Com- mission has jurisdiction regardless of amount in controversy, but does not award costs or attorn ej^'s fees. Washer Grain Co. V. Mo. Pac. Ry. Co., 15 I. C. C. R. 147, 151, 152. Jurisdiction to award damages for diverted shipments. Woodward & Dick- erson v. L. & N. R. Co., 15 I. C. C. R. 170. Commission may authorize a compromise of a claim for reparation. Joice & Co. V. 111. Cent. R. Co., 15 I. C. C. R. 239 ; Goff-Kirby Coal Co. v. § 528,] Acts Regulating Commerce. 439 Bessemer & Lake E. R. Co., 15 I. C. C. R. 553. No jurisdiction in commission to require a shipper to make good an undercharge. Falls & Co. V. Chicago, R. I. & P. Ry. Co., 15 I. C. C. R. 269. Should claim reparation in original complaint and not wait until after a determination of the question of the validity of a rate? Morse Produce Co. v. Chicago, M. & St. P. Ry. Co., 15 I. C. C. R. 334. Scope of sections eight and nine discussed, holding reparation may be awarded on past shipments. Arkansas Fuel Co. V. Chicago, M. & St. P. Ry. Co., 16 I. C. C. R. 95, 98. Dam- ages for loss of employment too speculative. Allender v. Chi- cago, B. & Q. R. Co., 16 I. C. C. R. 103. An association may maintain a complaint for damages to its members. California Com. Asso. V. Wells Fargo Ex. Co., 16 I. C. C. R. 458, 463. In a suit for damages for violating the fourth section brought in the United States circuit court, the measure of damages is the dif- ference between the amount paid for the shorter haul and the charge for the longer haul ; the jury may allow interest, but such interest dates from the last payment. Junod v. Chicago & N. A¥. Ry. Co., 47 Fed. 290; Osborne v. Chicago & N. W. Ry. Co., 48 Fed. 49. Reversed on other points. Chicago & N. W. Ry. Co. V. Osborne, and same v. Junod, 52 Fed. 912, 3 C. C. A. 347. Writ of certiorari refused by Supreme Court. 146 U. S. 364, 36 L. Ed. 1002; see also Parsons v. Chicago & N. W. R. Co., 167 U. S. 447, 453, 42 L. Ed. 231, 234. Common law remedies for ex- tortion are superceded by a statute creating a commission to determine the question. Winsor Coal Co. v. Chicago & A. R. Co., 52 Fed. 716, referring to a state statute. Right for damages to exist for unlawfully refusing to interchange traffic. Toledo, A. A. & N. M. Ry. Co. v. Penn. Co., 54 Fed. 730, 740, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561. Cannot recover for a violation of the interstate commerce act in a state court ; there is no common law of the United States. Swift v. Philadelphia & R. R. Co., 58 Fed. 858. Same doctrine as to common law an- nounced same case. 64 Fed. 59. Contra, Murray v. Chicago & N. W. Ry. Co., 62 Fed. 24. Affirmed. 92 Fed. 868, 35 C. C. A. 62, and Kinnavey v. Terminal R. Asso., 81 Fed. 802, 804. See as to common law. Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561, where Mr. Justice Brewer says : "There is no body of federal common law separate and dis- tinct from the common law existing in the several states, in the 440 Acts Ki-xin^ATiNG Commerce. [§ 528. sense that tliere is a botly of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several states, l^ut it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. ******* h^q principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment." A joint through rate is not the basis for a local rate in a suit for discrimination. Parsons v. Chicago & N. W. Ry. Co., 63 Fed. 903. Affirmed. 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887. The federal courts have exclusive jurisdiction of suits brought under sections eight and nine. Van Patten v. Chicago, M. & Sf, P. R. Co., 74 Fed. 981. And suits may be brought in any dis- trict in which the defendant resides. See also Connor v. Vicks- burg etc. R. Co., 36 Fed. 273, 1 L. R. A. 331. The rates filed and published according to the interstate commerce law are the only legal rates, and the fact that such rates are published is a de- fense in a court to a suit for damages alleging that such rates are unreasonable. Van Patten v. Chicago, M. & St. P. Ry. Co., 81 Fed. 545. Rights under the section are assignable. Edmunds V. 111. Cent. R. Co., 80 Fed. 78. What a petition under the sec- tions for violating section two should show and disagreeing with the Swift Case, supra, on the question of a common law of the United States. Kinnavey v. Terminal R. Asso., 81 Fed. 802. There must be an active, not merely a threatened, discrimination as a basis for a suit for damages. Lehigh V. R. Co. v. Rainey, 112 Fed. 487. The remedy provided by tliese sections is exclu- sive and an injunction will not be granted to compel obedience to section three. Central Stock Yards Co. v. L. & N. R. Co., 112 Fed. 823. No limitation being fixed by the act, the law of the state where suit is brought will govern in that particular. Ratican v. Terminal R. Asso., 114 Fed. 666. Contra, Carter v. New Orleans & N. E. R. Co., 143 Fed. 99, 74 C. C. A. 293, liold- ing that R. S. U. S. § 1047 applies. That the state law governs seems to be the law. Chattanooga Foundry & Pipe "Works v. Atlanta. 203 U. S. 390, 51 L. Ed. 241, 27 Sup. Ct. 65. Opinion of eommissi(m inadmissible in a suit to enforce its order, validity of its order rests upon the existing facts, whether disclosed to § 528.] Acts Eegt^lattng Commerce. 441 the commission or not, the election to proceed before the com- mission bars a suit before the courts, no appeal is allowed from an order of the commission granting or refusing reparation. Effect of the order when suit brought thereon. Western N. Y. & Penn. E. Co. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. Affirmed, without discussing above proposition. Penn. Refining Co. v. Western N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. AVhat a plaintiff must show in order to recover. Kmidsen- Ferguson Fruit Co. v. Mich. Cent. R. Co., 148 Fed. 968. 974. Petition for writ of certiorari denied. Must be protest before re- covery when rate duly published. Knudsen-Ferguson Fruit Co. V. Chicago. St. P., M. & 0. Ry. Co., 149 Fed. 973, 79 C. C. A. 483. Petition for writ of certiorari denied. 204 U. S. 670, 51 L. Ed. 672. Carrier may be compelled to produce books on the trial of a case hereunder. International Coal INIining Co. v. Penn. R. Co., 152 Fed. 557. When trial before the court, the re- port of the commission upon which the action is based may be received in evidence, commission's finding prima facie true. So. Ry. Co. v. St. Louis Hay & Grain Co., 153 Fed. 728, affirming 149 Fed. 609. Reversed because the commission erred in the law applied by it and remanded to send the matter back to the commission. 214 U. S. 297. 53 L. Ed. , Sup. Ct. . A suit for damages for discrimination not alleging that the charges are not in accordance with the published schedules is not one arising under the interstate commerce law. Clement v. L. & N. R. Co., 153 Fed. 979. Can recover in court when full tariff rate is paid and a less rate charged plaintiffs competitors, but cannot recover when only the tariff' rate is collected, although such rate is fixed by combination, without first applying to the eommissi(m. American Union Coal Co. v. Penn. R. Co., 159 Fed. 278. When a bond is given to dissolve an injunction against a rate subsequently declared unlawful, persons paying the illegal rate may intervene and participate in the proceeds to be collect- ed upon the bond. Tift v. So. Ry. Co., 159 Fed. 555. In a suit for damages in a circuit coiu't, the i)rint(Ml and published rates are legal unless declared by the commission to be illegal. IMeoker v. Lehigh V. R. Co., 162 Fed. 354. liemedy by suit or complaint under these sections inadequate. ]\Iacon Grocery Co. v. All;iiitic C. L. R. Co.. 163 Fed. 738. Reversed. Atlaiilie C. L. K. Co. v. Macon Grocery Co., 166 Fed. 206, C. C. A. . Shipper can- 442 Acts Eegui.ating Commerce. [§ 529, not iu the abseuce of a statute recover for discrimination if he has paid no more than a reasonable rate, and when suit is brought under the statute, it is the nature of a suit for a pen- alty and plaintiff must clearly and distinctly show a violation. Cannot recover for failure to publish a tariff without showing that advantage would have been taken of the tariff' if it had been published. Parsons v. Chicago & N. W. R. Co., 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887. The first proposition above quoted appears inconsistent with the opinion in Western Union Tel. Co. V. Call Printing Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561, supra. A shipper cannot recover in a state court for hav- ing paid an unreasonable rate prior to a determination by the In- terstate Commerce Commission that the rate paid is unreason- able. Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. The court, however, is not because of this rule required to say that a suit in equity to pre- vent an illegal advance is also forbidden. So. Ry. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1125, 27 Sup. Ct. 709. Commission's order set aside and the facts held not to constitute illegal dis- crimination. Penn Refining Co. v. Western N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. Suit for damages for a violation of the interstate commerce act cannot be maintained in a state court. Fitzgerald v. Fitzgerald etc. Construction Co., 41 Neb. 374, 51 N. W. 838 ; Copp v. L. & N. R. Co., 43 L. Ann. 511, 9 So. 441, 3 I. C. R. 625, 46 Am. & Eng. R. cases 634; Gulf C. & S. F. Ry. Co. V. I\roore, 98 Tex. 302, 83 S. W. 363 ; Wabash R. Co. V. Sloop, 200 Mo. 198, 98 S. W. 607. But may maintain a suit on the common law right to have transportation at reasonable rates. Holliday Milling Co. v. Louisiana & N. W. R. Co., 80 Ark. 536, 98 S. AA^. 374. Overcharges on an interstate shipment paid prior to the act not recoverable in a state court. Gatton V. Chicago, M. & St. P. Ry. Co., 95 Iowa 112, 63 N. ^^\ 589, 28 L. R. A. 556, 5 I. C. R. 474. A judgment for an unjust rate voluntarily paid cannot be recovered. Strough v. New York C. & H. R. R. Co., 87 N. Y. Sup. 30, 92 App. Div. 584. Affirmed. 181 N. Y. 533, 73 N. E. 1133. I\ray sue in a federal court for damages caused by a violation of section 2 without prior action by the commission. Lyne v. Delaware, L. & W. R. Co., 170 Fed. 847. § 529. Penalties for violations of the act. — That any common carrier subject to the provisions of this act, or, whenever such § 529.] Acts Regulating Commerce. 443 common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other cor- poration, company, 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 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, mat- ter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission, or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was com- mitted, be subject to a fine of not to exceed five thousand dol- lars for each offense: Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares or charges, for the transportation of passengers or property, such person shall, in addition to the fine hereinbefore provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Section ten of the original act, with the proviso added bj^ act March 2, 1889, being paragraph one of section ten of present act. The commission has no power to enforce penalties, the penal provisions being enforcible only in the courts. Slater v. N. Pac. R. Co., 2 I. C. C. R. 359, 2 I. C. R. 243. Sufficient to show that the agent charged had general charge of a freight office of the carrier violating the act. United States v. Tozer, 37 Fed. 635, 39 Fed. 369. Reversed. Tozer v. United States, 52 Fed. 917. A corporation cannot be convicted of a crime and the agent must.be one who knowingly aids or abets the violation and not a mere clerk. United States v. Mich. Cent. R. Co., 43 Fed. 26. Corporations not criminally liable. Re Peasley, 44 Fed. 271. P>ut see imder act ]903 Re Pooling Freights, 115 Fed. 588. The offense is committed when the voucher for rebate is signed and not when the payment is made. United States v. Fowkes, 53 Fed. 13, 3 C. C. A. 394. An agent who merely collects rates and has nothing to do with fixing rates is not indictable. United 444 Acts REGrLATiNG Commerce. ' [§530. States V. Mellen. 53 Fed. 229. 233. Coniinon carrier not a cor- poration indictable, but not so a corporation. Toledo, A. A. & N. M. Ry. Co. V. Penn. Co., 54 Fed. 730, 736, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561. A combination to defeat the provisions of the act to regulate commerce is within this section. Waterhonse v. Comer, 55 Fed. 149, 157, 19 L. R. A. 403, 1 Fed. Anti-Trust Dec. 119. No penalties before amendment of 1889. United States v. Howell, 56 Fed. 21. The receiver of a rebate not a criminal muler the old law. United States v. Han- ley, 71 Fed. 672. What should be stated in an indictment for discriminati(m. United States v. DeCoursey, 82 Fed. 302. An indictment mider this section for discrimination in failing to furnish switch connections must allege that such connection is practicable. United States v. B. & 0. R. Co., 153 Fed. 997. § 530. Penalties for false billing, false classification, false weighing, etc., by carriers. — Any common carrier, subject to the provisions of this act, or whenever such common carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of w^eight. or by any other device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force on the line of trans- portation of such common can-ier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the dis- trict in which such offense was committed, be subject to a fine 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. Paragraph two, section ten, of act as amended by act :\Iarch 2, 1889. Necessity for this enactment suggested. Re Underbilling. 1 I. C. C. R. 633, 1 I. C. R. 813, 820. § 531. Penalties against shippers for false billing, etc. — 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 con- signor or consignee any such carrier shall transport property, who shall knowingly and willfully, by false billing, false class- § 532.] Acts Regulating Commerce. 445 ification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the 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 ex- ceeding five thousand dolhirs or imprisonment in the peniten- tiary for a term of not exceeding two years, or both, in the dis- cretion of the court. Paragraph three of section ten added by the act of March 2, 1889. The intention of the act was to protect carriers as well as ship- pers. Page V. Delaware, L. & W. R. Co., 6 I. C. C. R. 148, 166, 4 I. C. R. 525. 534. Order not enforced. Int. Com. Com. v. Delaware, L. & AY. R. Co., 64 Fed. 723. The purpose of the enactment stated. United States v. Howell, 56 Fed. 21, 24. A rebate under act jNIarch 2, 1889, is not illegal imless granted to some and refused to others in like situation. United States V. Hanley, 71 Fed. 672. Crime is committed at the place where the consignor obtains the false billing. Re Belknap, 96 Fed. 614; Davis V. United States, 104 Fed. 136, 43 C. C. A. 448. § 532. Penalties and damages for inducing discriminations. — If any such person, or any officer or agent of any such corpora- tion or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any common carrier sub- ject to the provisions of this act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of propert3^ or shall aid or abet any common carrier in any such unjust dis- crimination, such person or such officer or agent of such corpora- tion or company shall be deemed guilty of a misdemeanor, and slia]]. upon conviction in any court of the United States of com- petent jiu'isdiction Avithin tlie district in which such offense was connnitted, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the |)('Tiitentiary for a term of not exceeding two years, oi- bo1li, in llic (liscrdion of the court, for each offense; and such person, coi'poraliou. or company sliali 446 Acts Regi'lating Commerce. [§533. also, together with said common carrier, be liable, jointly and severally, in an action on the case to be brought by any consignor or consignee, discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom. Paragraph four of section ten added by act March 2, 1889. Cited. Washer Grain Co. v. Uo. Pac. Ry. Co., 15 I. C. C. R. 147, 152, 153. What should be stated in an indictment. United States V. Hanley, 71 Fed. 672. § 533. Appointment and term of office of commissioners. — That a commission is hereby created and established to be known as the Interstate Commerce Commission, which shall be com- posed of seven commissioners, who shall be appointed by the President, hy and with the advice and consent of the Senate. The commissioners first appointed under this act shall continue in office for the term of two, three, four, five, and six years, re- spectively, from the first day of January, Anno Domini eighteen lumdred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the commis- sioner whom he shall succeed. Any commissioner may be re- moved by the President for inefficiency, neglect of duty, or mal- feasance in office. Not more than four of the commissioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this act, or owning stock or bonds thereof, or who is in any manner pecuniarly interested therein, shall enter upon the duties of or hold such office. Said commis- sioners shall not engage in any other business, vocation, or em- ployment. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all the powers of the commission. Section eleven of original act, except as will appear from sec- tion twenty-four added by the act of June 29, 1906, the number of commissioners were increased from five to seven, and this sec- tion has consequently been copied to conform to the provisions of section twenty-four. The commission is a body corporate, with power to sue and be sued. Int. Com. Com. v. B. & 0. R. Co.. 345 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844 ; Int. Com. Com. v. A. T. & S. F. Ry. § 534.] Acts Kegulating Commerce. 447 Co., 149 U. S. 264, 37 L. Ed. 727, 13 Sup. Ct. 837 ; Tex. & Pac. K. Co. V. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. § 534. Power and duty of commissioners. — That the commis- sion hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the commission to per- form the duties and carry out the objects for which it was created; and the commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the commission, it shall be the duty of any dis- trict attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the 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 testi- mony of witnesses and the production of all books, papers, tar- iffs, contracts, agreements, and documents relating to any matter under investigation. Such attendance of witnesses, and the production of such doc- umentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission, or any party to a proceeding before the commission, may invoke the aid of any court of the United States in requiring the attendance and testi- mony of witnesses and the prodviction of books, papers, and doc- uments under the provisions of this section. First two paragraphs of section twelve as enacted by act of February 10, 1891, enlarging somewhat the original act and the amendment of March 2, 1889. The original act covering this section read: "That the commission hereby created shall have jiulliofily to inquire into the management oi" 1he business of all conimon car- riers subject to the provisions of this act, and shall keep itself 448 Acts Regulating Commerce. [§ 534. informed as to the manner and method in which the same is conducted, and shall liave the right to ohtain from such common carriers full and complete informaticm necessary^ to ;mal)le the commission to perform the duties and carry out the objects for which it was created ; and for the purposes of this act the com- mission shall have power to require the attendance ami testi- mony of witnesses and the production of all books, papers, tar- iffs, contracts, agreements, and documents relating to any matter under investigation, and to that end may invoke the aid of any court of the United States in requiring the attendance and tes- timony of witnesses and the production of books, papers, and documents under the provisions of this section." The act of 1889 is as follows : "That the conmiission hereby created shall have authority to inquire into the management of the business of all common car- riers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such com- mon carriers full and complete information necessary to enable the commission to perform the duties and carrj^ out the ob- jects for which it was created; and the commission is hereby authorized and required to execute and enforce the provisions of this act ; and, upon the request of the commission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute, imder 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 prosecution shall be paid out of the appropriation for the expenses of the courts of the United States ; and for the purposes of this act the commission shall have the power to require, by subpa?na, the at- tendance and testimony of w^itnesses and the production of all books, papers, tariffs, contracts, agreements, and documents re- lating to any matter under investigation, and in case of diso- bedience to a subpoena, the commission, or any party to a pro- ceeding before the commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section." Practice for complainant to obtain production of books. Rice § 534.] Acts Regulating Commerce. 449 V. Cincinnati, W. & B. R. Co., 3 I. C. C. R. 186, 2 I. C. R. 584, 594. Application to require production of the papers of third persons not before the commission denied. Haddock v. Dela- ware, L. & W. R. Co., 4 I. C. C. R. 296, 3 I. C. R. 302. The commission is vested with only administrative powers, which fall far short of making it a court. Kentucky & I. Bridge Co. V. L. & N. R. Co., 37 Fed. 567, 612, 613. The Interstate Com- merce Commission is an administrative body and the act au- thorizing the courts to aid the commission with process to com- pel a response to the subpcpna of the commission is unconstitu- tional. Re Interstate Commerce Commission, Application for Order Against Brimson et. al.. 53 Fed. 476, 481. Reversed, holding section constitutional. Int. Com. Com. v. Brimson, 154 U. S. 477, 38 L. Ed. 1047, 14 Sup. Ct. 1125. Bill in equity filed in name of commission, its duties stated. Int. Com. Com. v. Detroit, G. H. & M. Ry. Co., 57 Fed. 1005, 4 I. C. R. 722. Re- versed. 74 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308, 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. Not necessary in suits to enforce the orders of the commission to file the testimony taken before it, but when such testimony was taken on notice, it may be offered by either party. Int. Com. Com. v. Cincinnati, N. 0. & T. P. R. Co., 64 Fed. 981, 13 U. S. App. 700. But the mere opinion of the commission is not admissable as evidence. Western N. Y. & P. R. Co. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. Affirmed. Penn Refining Co. v. Western N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. . Pro- ceedings in the name of the United States are authorized by this section without a preliminary investigation by the commission. United States v. Mo. Pac. Ry. Co., 65 Fed. 903. Reversed. Mo. Pac. Ry. Co. v. United States, 189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507. Suit brought by authority of section. United States V. Joint Traffic Asso., 76 Fed. 895, 1 Fed. Anti-Tr. Dec. 615. Affirmed, Circuit Court Appeals, 89 Fed. 1020, 32 C. C. A. 491, 45 U. S. App. 726, 1 Fed. Anti-Trust Dec. 869. See de- cision of Supreme Court, post, this section. Section quoted in discussing the refusal of a witness to answer in an investigation by a grand jury of violations of the act. Counselman v. Hitch- cock, 142 U. S. 547, 35 L. Ed. 1110, 1113, 12 Sup. Ct. 195. After this decision the immunity act of February 11, 1893, was passed. Section twelve is constitutional. Int. Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125; Int. Com. Com. 450 Acts Regulating Commerce. [§535. V. Baird. 194 U. S. 25, 48 L. Ed. 860, 24 Sup. Ct. 563. Upon an inquiry by the commission, carriers should not withhold their evidence and present it later before the court on a suit to en- force the order of the commission. Cincinnati, N. 0. & T. P. Ry. Co. V. Int. Com. Cora., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Co. 700. The commission may be a party plaintiff or defendant. Tex. & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666. A suit to enjoin a carrier from violating the act to regulate commerce could not be brought by the United States at the request of the commission prior to the act of Feb- ruary 19, 1903. Mo. Pac. Ry. Co. v. United States, 189 U. S. 274, 47 Fed. 811, 23 Sup. Ct. 507. Prior to the Hepburn Act the commission had no power to fix rates. Int. Com. Com. v. Cincinnati, N. 0. & T. P. R. Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. This case was subsequently followed by other cases citing the principal case. Nor did the commission have power to fix joint through routes. Int. Com. Com. v. Western of A. R. Co., 93 Fed. 83, 35 C. C. A. 217, 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. See also Ky. & I. B. Co. v. L. & N. R. Co., 37 Fed. 567, 2 I. C. R. 351; Little Rock & M. R. Co. v. St. Louis & S. W. R. Co., 41 Fed. 559 ; Little Rock & M. R. Co. V. East Tenn., Va. & Ga. Ry. Co., 47 Fed. 771; Chicago & N. W. Ry. Co. V. Osborne, 52 Fed. 912, 3 C. C. A. 347, 10 U. S. App. 430; Union P. R. Co. v. United States, 117 U. S. 355, 29 L. Ed. 920, 6 Sup. Ct. 772. The commission an administrative body. Cincinnati, N. 0. & T. P. R. Co. v. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. The powers exercised by the commission being analogous to a referee or special com- missioner. Ky. & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567. Its powers are, however, quasi judicial. Int. Com. Com. v. Cin- cinnati, N. 0. & T. P. R. Co., 167 U. S. 479. 42 L. Ed. 243, 17 Sup. Ct. 896. Can not require the attendance of witnesses ex- cept on complaints or on investigations of subjects that might become the basis of a complaint. Harriman v. Int. Com. Com., 211 U. S. 407. 53 L. Ed. . 29 Sup. Ct. 115. § 535. Power of courts to punish for disobedience, witness not excused because testimony may incriminate. — And any of the cir- cuit courts of the T'nited States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring § 536.] Acts Regulating Commerce. 451 such common carrier or other person to appear before said com- mission and produce books and papers if so ordered and give evidence touching the matter in question ; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The ehiim that any such testimony or evi- dence may tend to criminate the person giving such evidence shall not excuse such witness from testifying ; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Paragraph three of section twelve, being paragraph two of said section in original act. See immunity act, act February 11, 1893, post, § 581. An officer of a carrier, not himself incriminated by the docu- ments, must respond to a notice to produce. Re Peasley, 44 Fed. 271. Provision giving court power to piuiish disobedience to the subpoena of the commission unconstitutional. Re Interstate Com- merce Commission Application for Order Against W. G. Brim- son et al., 53 Fed. 476, 481. Reversed, holding section valid. Int. Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125. The commission has plenary power to institute an investigation into any matter within its jurisdiction, and on such investigation to require the attendance of witnesses and the production of papers. Int. Com. Com. v. Harriman, 157 Fed. 432. Reversed in part, holding that testimony could only be re- quired in connection with complaints or upon the investigation of subjects that might be made the object of a complaint. Har- riman V. Int. Com. Com., 211 U. S. 407, 53 L. Ed. , 29 Sup. Ct. 115. § 536. Right to take testimony by deposition and the manner thereof prescribed. — The testimony of any witness may be taken, at the instance 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 answer. 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 investigation. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or cir- cuit 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 452 Acts Regulating Commerce. [§ 537. States, or any notan^ public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceed- ing or investigation. Reasonable notice nuist 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, wliich notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to pro- duce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documen- tary evidence before the commission as hereinbefore provided. Every person deposing as herein provided shall be cautioned and sworn, or affirm, if he so request, to testify the whole truth, and shall be carefully examined. His testimony shall be re- duced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writ- ing, 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 commission, or agreed upon by the parties by stipulation in writing to be filed with the commission. All depositions must be promptly filed with the commission. Witnesses whose depositions are taken pursuant to this act, and the magistrate or other officer taking the same, shall sev- erally be entitled to the same fees as are paid for like services in the courts of the United States. Last paragraphs of section twelve, added by the act of Feb- ruary 10, 1891. See rule six of Rules of Practice, §§ 167, 168. ante. Section referred to. Foster Bros. Co. v. Duluth etc. Ry. Co., 14 I. C. C. R. 232. § 537. Persons who may file complaints before the commis- sion and practice with reference thereto. — That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organ- ization complaining of anything done or omitted to be done by any common carrier subject to the provisions of this act in con- travention of the provisions thereof, may apply to said commis- sion b}^ petition, which shall brieflj^ state the facts; whereupon a statement of the charges thus made shall be forwarded by the § 537.] Acts Regulating Commerce. 453 commissioner to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the commission. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said com- plaint, 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 rnanner investigate any com- plaint forwarded by the railroad commissioner or railroad com- mission of any state or territory, ait the request of such com- missioner or commission, and may institute any inquiry on its o^^^l 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. Section thirteen of original act. Complaint of a violation of the act should be made and not a mere request for a construction of the law. Re Petition of Order of Railway Conductors, 1 I. C. C. R. 8, 1 I. C. R. 18; Penn. Co. v. Louisville, N. A. & C. R. Co., 3 I. C. C. R. 223, 2 I. C. R. 603. When no overt act in violation of the law is charged, complaint will be dismissed. Holbrook v. St. Paul, M. & M. R. Co., 1 I. C. C. R. 102, 1 I. C. R. 323. No replication to answer required. Powers and Procedure of the Commission. 1 I. C. C. R. 223, 1 I. C. R. 408, 410; Oregon Short Line v. N. Pac. R. Co., 3 I. C. C. R. 264, 2 I. C. R. 639. Vermont State Grange, could intervene and complain against charges on east bound freight, though original complaint referred only to west bound freight Boston & A. R. Co. v. Boston & L. R. Co., 1 I. C. C. R. 158, I. C. R. 500, 571. Where answer denies complaint and comphiinant fails to appear, complaint dismissed. Jackson v. St. Louis, A. & T. R. Co., 1 I. C. R. 599. New grievances can- not be set up in an amendment. Riddle, Dean & Co. v. B. & O. R. Co., 1 I. C. C. R. 372, 1 I. C. R. 701 ; Delaware State Grange V. New York, P. & N. R. Co.. 2 T. C. C. R. 309, 2 I. C. R. 1S7. Rule as to rehearings stated by Judge Cooley. Riddle, Dean & 454 Acts Regulating Commerce. [§i337. Co. V. Pittsburg & L. E. R. Co., 1 I. C. C. R. 400, 1 I. C. R. 773. Case not decided on a theory, neither in the complaint nor the evidence. Martin v. Chicago, B. & Q. R. Co., 2 I. C. C. R. 25, 2 I. C. R. 32. Sufficient to make initial carrier a party when complaining against a classification. Any party at interest may be heard without formal intervention. Ilurlburt v. Lake Shore & M. S. R. Co., 2 I. C. C. R. 122, 2 I. C. R. 81. Decision of the commission applies to the facts of the partic^ular case. Re Rela- tive Tank and Barrel Rates. 2 I. C. C. R. 365, 2 I. C. R. 245. After a case closed, an application from one not a party for a rehearing will not be granted. Re Petition of Produce Ex- change of Toledo. 2 I. C. C. R. 588, 2 I.' C. R. 412. Commis- sion may investigate and deal with violations of the law without formal complaint. Re Investigation of Acts of Grand Trmik Ry. 3 I. C. C. R. 89, 2 I. C. R. 496. Re Alleged Excessive Rates on Food Products. 4 I. C. C. R. 48, 116, 3 I. C. R. 90, 151. What a petition for rehearing should show. ]\Iyers v. Penn. Co., 2 I. C. C. R. 573, 2 I. C. R. 403, 544. Must allege that the violation complained of occurred with reference to an interstate ship- ment. White V. Mich. Cent. R. Co., 3 I. C. C. R. 281, 2 I. C. R. 641. Wlien a complaint is filed by a state railroad commission, it will not be dismissed because such commission is thereafter abolished. Railroad Commission of Florida v. Savannah, Fla. & W. R. Co., 5 I. C. C. R. 13, 3 I. C. R. 688. Complaint may be filed against a receiver of a carrier engaged in interstate com- merce. Railroad Commission of Georgia, Tranunell et al. v. Clyde S. S. Co., 5 I. C. C. R., 324, 4 I. C. R. 120. Commission wdll take proof on complaint that carrier has not answered. Tecumseh Celery Co. v. Cincinnati, J. & M. Ry. Co., 5 I. C. C. R. 663, 4 I. C. R. 318. Different groimds of an objection to a rate may be urged in a second complaint. Schumacher ]\Iilling Co. V. Chicago, R. I. & P. R. Co., 6 I. C. C. R. 61, 4 I. C. R. 373, 384. Notwithstanding complainant may have violated the law, commission will act on complaint for benefit of public. Page v. Delaware, L. & W. R. Co., 6 I. C. C. R. 148, 548, 4 I. C. R. 525. Long after complaint decided will not reopen for purpose of act- ing on application for reparation. Rice, R. & W. v. W. N. Y. & Penn. R. Co., 6 I. C. C. R. 455. Cannot authoritatively de- termine what is not in issue by pleadings. Commercial Club of Omaha v. Chicago, R. I. & P. Ry. Co., 6 I. C. C. R. 647. An as- sociation may bring complaint and defendants not entitled to dis- § 537.] Acts Regulating Commerce. 455 missal because tliere is no direct damage to complainant. Milk Producers Protective Asso. v. Delaware, L. & W. R. Co., 6 I. C. C. R. 92, 163. Shippers claim submitted by the carrier treated as a formal case. Roth v. Tex. & Pac. Ry. Co., 9 I. C. C. R. 602. Commission clearly has no right to award damages. Cattle Raisers' Asso. of Texas v. Chicago, B. & Q. R. Co., 10 I. C. C. R. 83. One a party to a case may amend and claim reparation. id. 105. Complaints against unreasonable rates are in behalf of the public and complainants need not enter with "clean hands." Tift V. So. Ry. Co., 10 I. C. C. R. 548, 578. Order enforced. 138 Fed. 753, 123 Fed. 789. Affirmed. 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. Parties may present a written state- ment of facts and obtain the opinion of the commission thereon. Re Freight Rates Between Memphis and Points in Arkansas, 11 I. C. C. R. 180. Case decided before amendment of June 29, 1906, reopened after that amendment for further hearing. Cat- tle Raisers' Asso. v. IMo., Kan. & Tex. Ry. Co., 12 I. C. C. R. 1. But not when complainant had waited for about a year before trying to enforce an order which the carriers disobeyed. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 12 I. C. C. R. 6, 507. Complaints must be presented with reasonable diligence. Pro- ducers Pipe Line Co. v. St. L., I. M. & S. Ry. Co., 12 I. C. C. R. 186. Reparation asked informally after hearing closes not con- sidered. Dallas Freight Bureau v. Gulf C. & S. F. Ry. Co., 12 I. C. C. R. 223. Testimony alone of a person having no interest in or personal knowledge of the rate complained of insufficient to sustain a complaint. Dallas Freight Bureau v. Mo., Kan. & Tex. Ry. Co., 12 I. C. C. R. 427. The commission, being an ad- ministrative body, is unencumbered by technicalities. Missouri & Kan. Shippers' Asso. v. Mo., Kan. & Tex. Ry. Co., 12 I. C. C. R. 483. Each case must be disposed of on its own facts, and no general rule will be made that through rates must not exceed the sum of the locals. Coffeyville Vitrified Brick & Tile Co. v. St. Louis & S. F. R. Co., 12 I. C. C. R. 498. What is an "associa- tion" within meaning of section. Forest City Freight Bureau V. Ann Arbor R. Co., 13 I. C. C. R. 118. A complaint for reparation by a voluntary association must name the members and specify and describe the shipments with reasonable particu- larity, but see the facts of tlie case. INFo. & Kan. Shippers' Asso. v. A. T. & S. F. Ry. Co., 13 T. C. C. R. 411. Amendment not allowed to graft on an aj)plication for through routes and joint 456 Acts Regulating Commerce. [§ 538. rates a claim for reparation. LaSalle & Bureau Co., R. Co. v. Chicago & N. W. Ry. Co., 13 I. C. C. R. 610. Not necessary in complaint for reparation to allege protest. Baer Bros. Mercan- tile Co. V. Mo. Pac. Ry. Co., 13 I. C. C. R. 329 ; Southern Pine Lumber Co. v. So. Ry. Co., 14 I. C. C. R. 195; NoUenberger v. Mo. Pac. Ry. Co., 15 I. C. C. R. 595, 596. This section shows a legislative intention to divorce proceedings before the commis- sion of all teclmicalities. Washer Grain Co. v. Mo. Pac. Ry. Co., 15 I. C. C. R. 147, 153. Cited arguing the power to award repa- ration for past shipments. Arkansas Fuel Co. v. Chicago, INI. & St. P. Ry. Co., 16 I. C. C. R. 95. 98. This section prescribed procedure before commission. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409, 414. An action for mandamus under section twen- ty-three will not preclude a shipper filing a complaint under section thirteen. Merchants Coal Co. v. Fairmont Coal Co., 160 Fed. 769. When a complaint is filed with the commission, it must, if complaint presents matter within the purview of the act, investigate regardless of w^hether or not the complainant may suffer direct damage from the act complained of. Int. Com. Com. V. Detroit, G. H. & M. Ry. Co., 57 Fed. 1005, 4 I. C. R. 722. Reversed on other grounds. Detroit, G. H. & M. Ry. Co. V. Int. Com. Com., 74 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308. Circuit court of appeals affirmed. Ry. v. Com., 167 U. S. 633, 42 L. Ed. 306, 17 Sup. Ct. 986. Int. Com. Com. v. Baird, 194 U. S. 25, 39, 48, L. Ed. 860, 867, 24 Sup. Ct. 563. See opin- ion circuit judge. Int. Com. Com. v. Philadelphia & R. Ry. Co., 123 Fed. 969. § 538. Eeports of commission on investigations, how made and published. — That whenever an investigation shall be made by said coimnission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the com- mission, together with its decision, order, or requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made. All reports of investigations made by the commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of. The commission may provide for the publication of its re- ports and decisions in such form and manner as may be best adapted for public information and use, and such authorized § 538.] Acts Regulating Commerce. 457 publications shall be competent evidence of the reports and de- cisions of the commission therein contained in all courts of the United States and of the several states without any further proof or authentication thereof. The commission may also cause to be printed for early distribution its annual reports. Section fourteen as amended by the acts of March 2, 1889, and June 29, 1906. The original act read : "That whenever an investigation shall be made by said com- mission, it shall be its duty to make a report in writing in re- spect thereto, which shall include the findings of fact upon which the conclusions of the commission are based, together with its reconunendation as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial proceedings, be deemed prima fact^ evidence as to each and every fact found. ''All reports of investigations made by the commission shall be entered of record, and a copy thereof shall be f'urnished to the party who may have complained, and to any common carrier that may have been complained of." The act of March 2, 1889, added the last paragraph of the present section. Under the original act, construing section fourteen Avith sec- tion ten, the commission held that it must be a "willful" viola- tion of the act to authorize it to make a recommendation of repa- ration. Railroad Com. of Fla. v. Savannah, Fla. & W. R. Co., 5 I. C. C. R. 13, 136, 3 I. C. R. 688, 693. 750. Section cited, Washer Grain Co. v. Mo. Pac. R. Co., 15 I. C. C. R. 147, 153; Arkansas Fuel Co. v. Chicago, M. & St. P. R. Co., 16 I. C. C. R. 95, 98. Section recited in course of opinion. Int. Com. Com. v. Cincinnati, N. 0. & T. P. R. Co., 64 Fed. 981, 983, 13 U. S. App. 700; Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409, 414. What the report should show. Order will be set aside when the commission excludes relevant evidence, or fails to give considera- tion thereto. Tex. & Pac. R. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 3 6 Sup. Ct. 666. EfiPeet of the commission's finding with reference to the classification of a commodity. Int. Com. Com. v. Cincinnati. II. & D. Ry. Co., H6 Fed. 559. Affirm- ed. Cincinnati, H. & D. Ry. Co. v. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648. Effect given to the finding 458 Acts Regttlattng Commerce. [§ 539. of the commission fixing a reconsignment charge. St. Louis Hay & Grain Co. v. So. Ry. Co., M9 Fed. GOO. Affirmed. So. Ry. Co. V. St. Louis Hay & Grain Co., 153 Fed. 728, 82 C. C. A. 614. Reversed, holding that the commission erred in law in fixing a reconsignment charge at the actual cost thereof, the carrier being entitled to a profit. So. Ry. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. Ed. , Sup. Ct. § 539. Power of commission to determine and prescribe just and reasonable rates, regulations and practices. — That the com- mission is authorized and empowered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in section thirteen of this act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, subject to the provisions of this act, for the transportation of persons or property as defined in the first section of this act, or that any regulations or practices what- soever affecting such rates, are mijust or unreasonable, or un- justly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this act, to de- termine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair, and rea- sonable to be thereafter followed; and to make an order that the carrier shall cease and desist from such violation, to the extent to which the commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed. First part of section fifteen, the whole section being added by the act of Jime 29, 1906. The original section read: ''That if in any case in which an investigation shall be made by said commission it shall be made to appear to the satisfac- tion of the commission, either by the testimony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cogniz- able by said commission, by any common carrier, or that any in- jury or damage has been sustained by the party or parties com- § 539.] Acts Regulating Commerce. 459 plaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the commission to forth- with 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 repa- ration 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 com- mission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the com- mission, or 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." The original act gave the commission power not only to de- termine what rates were unreasonable, but what Avere reasonable. Cose Bros. & Co. v. Lehigh V. R. Co., 4 I. C. C. R. 535, 577, 578, 3 I. C. R. 460, 478. Order not enforced. Int. Com. Com. V. Lehigh V. R. Co., 74 Fed. 784; Murphy, Wasey & Co. v. Wabash R. Co., 5 I. C. C. R. 122, 3 I. C. R. 725, 726. Power to prescribe rates exercised. IMerchants Union of Spokane v. N. Pae. R. Co., 5 I. C. C. R. 478, 4 I. C. R. 183, 198. Order not enforced. Farmers Loan & Trust Co. v. N. Pac. R. Co., 83 Fed. 249 ; Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co., 6 I. C. C. R. 195, 4 I. C. R. 592, 617. Order not en- forced. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co., 76 Fed. 183, 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. The Supreme Court having intimated in Cincinnati, N. 0. & T. P. Ry. Co. V. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700, 5 I. C. R. 391, and having held in Int. Com. Com. V. Cincinnati, N. 0. & T. P. Ry. Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896, that the commission had no power to fix rates, the commission, after citing these cases, refused to exer- cise such power. Carey v. Eureka Springs R. Co., 7 I. C. C. R. 286, 319. The power the commission had and exercised before the act of June 29, 1906, was practically to prescril)o the old rate as the rate for the future when an advance was declared illegal. For illustration, see Tift v. So. Ry. Co., 10 I. C. C. R. 548, and Central Yellow Pine Asso. v. 111. Cent. R. Co., 10 I. C. C. R. 505, where an advance was declared illegal, and Southern 460 Acts Eegulating Commerce. [§ 539. Pine Lumber Co. v. So. Ky. Co., 14 I. C. C. R. 195, and Nicola, Stone & Myers Co. v. L. & N. R. Co., 14 I. C. C. R. 199, where the full advance was decided to be the measure of reparation. No order made because of lack of authority to fix rates. Has- tings i\ralting Co. V. Chicago, M. & St. P. Ry. Co., 11 I. C. C. R. 675. The old law gave power to determine how much reparation should be awarded and thereby to determine to what extent a rate was excessive ; the amendment gave the additional power to prescribe what rate should be collected in the future. Cattle Raisers' Asso. v. IMo., Kan. & Tex. Ry. Co., 12 I. C. C. R. 1, 3. Section construed with reference to elevator allowances. Re Al- lowances to Elevators, 12 I. C. C. R. 85. Distribution of coal cars is a regulation and practice affecting rates under this sec- tion. Railroad Com. of Ohio v. Wheeling & L. E. R. Co., 12 I. C. C. R. 398; Rail & River Coal Co. v. B. & 0. R. Co., 14 I. C. C. R. 86. Rules as to who shall load and unload freight subject to the jurisdiction of this commission under this section. Whole- sale Fruit & Producers Asso. v. A. T. & S. F. Ry. Co., 14 I. C. C. R. 410, 421. Section with section fourteen contemplates awards of money by the commission. Washer Grain Co. v. IMo. Pac. Ry. Co., 15 I. C. C. R. 147, 153. Gives power to fix rates for the future and award reparation for the past. Arkansas Fuel Co. V. Chicago, M. & St. P. R. Co., 16 I. C. C. R. 95. 96. Whether or not the commission had power to fix maximum rates prior to the act of Jiuie 29. 1906, was first mooted and doubted in the Supreme Court in the cases of Cincinnati, N. 0. & T. P. R. Co. V. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. and Tex. & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940. 16 Sup. Ct. 666, and such power was definite- ly declared not to have been given the commission in the case of Int. Com. Com. v. Cincinnati, N. 0. & T. P. R. Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. Subsequently these cases were followed by the inferior courts. See Fed. Stat. Ann. vol. 3, p. 840. Section fifteen of the old act is little like the present section. Therefore, citations to the former are not directly applicable to the present section. Construing this section with others, from twelve to eighteen, inclusive, held that "the commission is in- vested with only administrative powers of supervision and in- vestigation, which fall far short of making the board a court, or its action judicial, in the proper sense of the term." Kentucky § 539.] Acts Regulating Commerce. 461 & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 613. Section required notice to be given carrier to cease violations of act. Int. Com. Com. v. Detroit, G. li. & M. R. Co., 57 Fed. 1005, 1008, 4 I. C. R. 722. "While the proceedings of the commission are not judicial, its procedure should substantially conform to that before a court. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409, 414. When the commission adopts an erroneous principle in arriving at a conclusion, its order based thereon will not be judicially enforced. Int. Com. Com. v. Lehigh V. R. Co., 74 Fed. 784, 787. "While the Hepburn act gives power to the commission to fix rates, courts may enjoin advance until the commission can de- termine whether or not the advance is legal. Kiser v. Cent, of Ga. Ry. Co., 158 Fed. 193, 198. The commission may make a finding without being embarrassed by admissions in a complaint. Cincinnati, 11. & D. R. Co. v. Int. Com. Com., 206 U. S. 342, 149, 51 L. Ed. 995, 998, 27 Sup. Ct. 648. Immaterial error of law not ground to set aside order of commission which is given the force "due to the judgments of a tribunal appointed by law and in- formed by experience." 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 454, 51 L. Ed. 1128, 1134, 27 Sup. Ct. 700. Some orders of the commission entered since the passage of the Hep- burn act have reached the courts. In Stickney v. Int. Com. Com., 164 Fed. 638, 644, the circuit judge said: "This court has ample jurisdiction to set aside or suspend any order of the com- mission resulting from a misconception and misapplication of a law to conceded or undisputed facts." In Mo., Kan. & Tex. R. Co. v. Int. Com. Com., 164 Fed. 645, the circuit judges held: That the same rules of law applied when a suit was brought to enjoin an order of the commission as when brought to enforce such order, and when complainants case for an injunction was "wanting in that certainty, fullness, and persuasive force which ought to be, and is, essential to overcome the force of the com- mission 's finding or determination upon which the order is based," a preliminary injunction was denied. Injunctions granted against order of commission for error in law. Delaware, L. & "W. R. Co. v. Int. Com. Com., 166 Fed. 498; same style case, 166 Fed. 499. Stickney case, supra, C. R. I. & P. R. Co. v. Int. Com. Com. (Mo. River Rate Case), 171 Fed. . Injunctions denied. So. Pac. Ter. Co. v. Int. Com. Com.. Hifi Fed. 134; Mo., Kan. & Tex. Ry. Case, supra. 462 Acts Regulating Commerce. [§ 540. § 540. When orders take effect and how long continue unless modified or set aside by the commission or a court. — All orders of the commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not ex- ceeding two years, as shall be prescribed in the order of the com- mission, unless the same shall be suspended or modified or set aside by the commission or be suspended or set aside by a court of competent jurisdiction. Second part of paragraph one of section fifteen as added by act of June 29, 1906. Cited, Mo., Kan. & Tex. Ey. Co. v. Int. Com. Com., 164 Fed. 645, 649. § 541. Division of joint rate may be prescribed by commis- sion. — Whenever the carrier or carriers, in obedience to such order of the commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the commission may after hearing make a supplemental order prescribing the just and rea- sonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order.- Last part of paragraph one of section fifteen as added by act of June 29, 1906. Before the amended act commission had no authority to com- pel carriers to make joint rates. Ee Application of F. AV. Clark. 3 I. C. C. R. 649, 2 I. C. R. 797 ; Commercial Club of Omaha v. Chicago, R. I. & Pac. Ry. Co., 6 I. C. C. R. 647, 677; Fred G. Clark Co. V. Lake Shore & M. S. Ry. Co., 11 I. C. C. R. 558, Re Alleged Unlawful Discrimination Against Enterprise Trans- portation Co., 11 I. C. C. R: 587 ; Ky. & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567; Little Rock & M. R. Co. v. St. L., I. M. & S. Ry. Co., 41 Fed. 559; Chicago & N. W. Ry. Co. v. Osborne, 52 Fed. 912, 915, 3 C. C. A. 347 ; Memphis & L. R. R. Co. v. So. Express Co. (Express cases), 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628; So. Pac. Co. v. Lit. Com. Com., 200 U. S. 536, 553, 50 L. Ed. 585, 593, 20 Sup. Ct. 330. Under the Hepburn law, in fixing a division of joint rates between carriers all cir- cumstances should be considered and such divisions should not be on a mileage or other fixed basis. Star Grain & Lumber Co. v. A. T. & S. F. Ry. Co., 14 I. C. C. R. 364. § 542.] Acts Regulating Commerce. 463 § 542. Through routes and joint rates may be established by commission. — The commission may also, after hearing on a com- plaint, establish through routes and joint rates as the maximum to be charged and prescribe the division of such rates as herein- before provided, and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any provision of this act, and the carriers com- plained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reasonable or satis- factory through route exists, and this provision shall apply when one of the connecting carriers is a water line. Second paragraph of section fifteen added by act June 29, 1906. The power conferred by this section did not exist until this amendment was passed. See annotation next preceding section. The proviso to this section prevents new lines from forcing joint traffic arrangements when satisfactory through routes exist. Chicago & M. Elec. R. Co. v. 111. Cent. R. Co., 13 I. C. C. R. 20. Through route established under this section. Pacific Coast Lumber i\Ifgrs. Asso. v. N. Pac. Ry. Co., 14 I. C. C. R. 51 ; Enter- prise Fuel Co. V. Penn. R. Co., 16 I. C. C. R. 219, 220, 222. § 543. Charges for instrumentalities iurnished by shipper must be reasonable. — If the owner of property transported under this act directly or indirectly renders any service connected witL such transportation, or furnishes any instrumentality used therein, the charge and allowance therefore shall be no more than is just and reasonable, and the commission may, after hearing on a com- plaint, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the service so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for in this section. Paragraph three of section fifteen added by act June 29, 1906. Storage and switching tracks within the inclosure of the ship- per and established for his convenience will not furnish a basis for the shipper's claim for compensation for storing cars under this section. General Elec. Co. v. New York C. & H. R. R. Co., 14 I. C. C. R. 237, 242. § 544. Enumeration of powers of commission not exclusive. — The foregoing enumeration of powers shall not exclude any 464 Acts Regulating Commerce. [§ 545. power which the ooiiimission would otherwise have in the making of an order under the provisions of this act. Last paragraph of section fifteen added by act June 29, 1906. § 545. Award of damages shall be made by commission after hearing. — That if, after hearing on a complaint made as provided in section thirteen of this act, the commission shall determine that any party complainant is entitled to an award of damages under the provisions of this act for a violation thereof, the com- mission shall make an order directing the carrier to pay to the , complainant the sum to which he is entitled on or before a day named. First paragraph of section sixteen as it now exists is an amendment passed June 29, 1906. The original section read : ''That whenever any common carrier, as defined in and sub- ject to the provisions of this act, shall violate or refuse or neglect to obey any lawful order or requirement of the commis- sion in this act named, it shall be the duty of the commission, and lawful for any company or person interested in such order or requirement, to apply, in a summary way, by petition, to the circuit court of the United States sitting in equity in the judi- cial district in whch 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 dis- obedience, 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 rea- sonable ; 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 de- termine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the prem- ises; 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 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 grder or requirement § 545.] Acts Regulating Commerce. 465 of said commission drawn in question has been violated or dis- obeyed, it shall be lawful for such court to issue a writ of in- junction or other proper process, mandatory or otherwise, to re- strain such common carrier from further continuing such viola- tion or disobedience of such order or requirement of said com- mission, and enjoining obedience to the same ; and in case of any disobedience of any such writ of injunction or other proper pro- cess, 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 pro- cess, 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, re- ceiver, 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 petson in default the sum of five hundred dollars for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such moneys shall be payable as the court shall direct, either to the party complaining, or into court to abide the ultimate decision of the court, or into the treasury ; and payment thereof may. without prejudice to any other mode of recovering the same be enforced by attachment or order in the nature of a vrr\t of execution, in like manner as if the same had been re- covered by a final decree in personam in such court. "When the subject in dispute shall be of the value of two thousand dol- lars 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 su- persede 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 deemefl reasonable. "Whenever any such petition shall be filed or pre- sented by the commission it shall be the duty of the district at- torney, under the direction of the Attorney-General of the Unit- ed States, to prosecute the same; and the costs and expenses 466 Acts Regulating Commerce. [§ 545. of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. For the pur- poses of this act, excepting its penal provisions, the circuit courts of the United States shall be deemed to be always in ses- sion. ' ' The section as amended by the act of IMarch 2, 1889, is as follows : "That whenever any common carrier, as defined in and sub- ject to the provisions of this act, shall violate, or refuse or neglect to obey or perform any lawful order or recpiirement of the commission created by this act, not founded upon a contro- versy rec[uiring 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 in- terested in such order or requirement, to apply in a summary Avay, by petition, to the circuit court of the Imited States sit- ting in equity in the judicial district in which the common car- rier complained of has its principal office, or in which the viola- tion or disobedience of such order or requirement shall happen, alleging such violation or disobedience, as the cause may be; and the said court shall have power to hear and determine the matter, on such 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 pro- ceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings 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 per- sons 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 disobedience of such order § 545.] Acts Regulating Commerce. 467 or requirement of said commission, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court incident or applicable to w^rits of injunction or other proper process, mandatory or othermse, 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, manda- tory or otherwise ; and said court may, if it shall think tit, make an order directing such common carrier or other person so dis- obeying such writ of injunction or other proper process, manda- tory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of five hundred dol- lars 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 complaining or into court, to abide the ultimate decision of the court, or into the treasury ; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment 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 pro- vided 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 reasonable. Whenever any such petition shall be filed or presented by the commission, it shall be the duty of the district attorney, under the direction of the Attorney-General of the United States, to prosecute the same ; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. "If the matters involved in any such order or requirement of said connnission are founded upon a controversy requiring a 468 Acts Regulating Commerce. [§ 545. trial by jury, as provided by the seventh amendment to the Constitution of the United States, and any such common carrier shall violate or refuse or neglect to obey or perform the same, after notice given by said commission as provided in the fifteenth section of this act, it shall be lawful for any company or person interested in such order or requirement to apply in a summary way by petition to the circuit court of the United States sitting as a court of law in the judicial district in which the carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, al- leging 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 pro- ceeding is pending to forthwith serve a copy of said petition, and of said order, upon each of the defendants, and it shall be the duty of the defendants to file their answers to said petition within ten days after the service of the same upon them as aforesaid. At the trial 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 summons 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 there- on. If the subject in dispute shall be of the value of two thou- sand dollars or more either party may appeal to the Supreme Court of the United States under the same regulations now pro- vided by law in respect to security for such appeal ; but such appeal must be taken within twenty days from the day of the rendition of the judgment of said circuit court. If the judgment of the circuit court shall be in favor of the party complaining, he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fixed by the court, which shall be collected as part of the costs in the case. For the purposes of this act. excepting its penal provisions, the circuit courts of the United States shall be deemed to be always in session." In Council v. Railroad Co., 1 I. C. C. R. 339, 1 I. C. R. 638, the commission declined to go into the question of a claim for damages for trespass, stating that a jury trial was necessary in § 545.] Acts Regulating Commerce. 469 such eases. See a similar holding. Heck v. East Tenn., Va. & Ga. Ry. Co., 1 I. C. C. R. 495, 1 I. C. R. 775; Riddle v. New York, L. E. & "W. R. Co., 1 I. C. C. R. 594, 1 I. C. R. 787. In the case of Rawson v. Newport N. & M. V. R. Co., 3 I. C. C. R. 266, 2 I. C. R. 626, the commission said that the amendment of March 2, 1889, having provided for a trial by jury in suits on the conmiission 's orders of reparation, such orders could under that amendment be issued. For a time even after the amend- ment the commission refused to issue money orders for repara- tion, leaving the matter to the courts, but a circuit court having decided that the failure of the commission to act, barred the com- plainant; the commission decided that it was its duty, where the facts and law authorized it, to make awards of reparation. MacLoon v. Chicago & N. W. R. Co., 5 I. C. C. R. 84, 3 I. C. R. 711, 715, 716. See also Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 10 I. C. C. R. 83, 89, 95. Section quoted. Blume & Co. V. Wells Fargo & Co., 15 I. C. C. R. 53, 55. Clearly the commission has authority to make an award of damages. Washer Grain Co. v. Mo. Pac. Ry. Co., 15 I. C. C. R. 147, 153. Arkansas Fuel Co. V. Chicago, M. & St. P. Ry. Co., 16 I. C. C. R. 95, 98. The difference between the old law and the amended act of June 29, 1906, should be kept in mind when considering the de- cisions relating to the section prior to that amendment. A suit on an order of the commission is an independent suit, in which the court hears the case de novo, though the commission's re- port is prima facie evidence of the matters of fact therein stated. Kentuclr^ & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 614. This is true whether the commission itself or an individual seeks to enforce the order of the commission. Int. Com. Com. v. Le- high V. R. Co., 49 Fed. 177. Other evidence may overcome the prima facie effect of the commission's report. Int. Com. Com. v. A. T. & S. F. R. Co., 50 Fed. 295, 304; Int. Com. Com. v. Cin- cinnati, N. 0. & T. P. Ry. Co., 56 Fed. 925, 934, 935. If order not obeyed, duty of commission to apply to a court to enforce. Int. Com. Com. v. Detroit, G. II. & M. Ry. Co., 57 Fed. 1005, 4 I. C. R. 722. Courts can onl}^ enforce or refuse to enforce orders as made. Shinkle etc. v. L. & N. R. Co., 62 Fed. 690; Detroit, G. H. & M. R. Co. V. Int. Com. Com., 74 Fed. 803. 841 , 21 C. C. A. 103. Order not enforced because commission failed to recog- nize "the element of the value of the service." Int. Com. Com. V. Delaware, L. & W. R. Co., 64 Fed. 723, 724. Section cited. 470 Acts Regulating Commerce. [§545. Int. Com. Com. v. Cincinnati, N. 0. & T. P. Ry. Co., 64 Fed. 981, 984, 13 U. S. App. 700. The commission's report is anal- agous to that of a referee or special master in chancery. Int. Com. Com. v. L. & N. R. Co., 73 Fed. 409, 414. The circuit court sitting as a court of equity has no jurisdiction of that part of the commission's order relating to reparation. Int. Com. Com. V. Western N. Y. & P. R. Co., 82 Fed. 192. An order to be enforced must be definite and within the legal power of the commission. Farmers' L. & T. Co. v. N. Pac. Ry. Co., 83 Fed. 249. If, after a hearing, the court finds the facts different from those found by the commission, the court will act on the facts found by it. Int. Com. Com. v. East Tenn., Va. & Ga. Ry. Co., 85 Fed. 107. Act remedial and a hearing should be had, al- though the benefit to be derived from the order appears unappre- ciable. Int. Com. Cora. v. Chicago, B. & Q. R. Co., 94 Fed. 272. A decree enforcing order of the commission may be suspended pending an appeal to the Supreme Court. Int. Com. Com. v. L. & N. R. Co., 101 Fed. 146. Order not set aside unless error clearly appears. Int. Cora. Com. v. L. & N. R. Co., 102 Fed. 709. When the commission has erred in the principles of law applied, the suit to enforce should be dismissed without prejudice to the right to again apply to that body. Int. Com. Com. v. So. Ry. Co., 105 Fed. 703, 710; L. & N. R. Co. v. Behlraer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209. A bill will not lie to pre- vent discrimination under section three prior to action by thb commission. Central Stock Yards Co. v. L. & N. R. Co., 112 Fed. 823. Affirmed on another groimd. 118 Fed. 113, 55 C. C. A. 63. Affirmed by the Supreme Court, with the statement, "For the purposes of decision, we assume* * * * * ^i^^t such rights as the plaintiff has may be enforced by bill in equity," (citing Interstate Stock Yards Co. v. Indianapolis U. R. Co., 99 Fed. 472.) 192 U. S. 568, 570, 48 L. Ed. 565, 569, 24 Sup. Ct. 339. Burden on the carrier to show order erroneous. Int. Com. Com. v. L. & N. R. Co., 118 Fed. 613, 622; Int. Com. Com. V. So. Pac. Co., 123 Fed. 597,. 602, 603, 604; Int. Com. Com. V. Cincinnati, H. & D. Ry. Co., 146 Fed. 559. Affirmed. Cincinnati, H. & D. Ry. Co. v. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648. The court may adopt different grounds to arrive at the same conclusion as the commission. Int. Com. Cora. v. So. Pac. Co., 132 Fed. 829, 137 Fed. 606. Decree reversed. So. Pac. Co. v. Int. Com. Com., 200 U. S. § 545.] Acts Regulating Commerce. 471 536, 50 L. Ed. 585, 26 Sup. Ct. 330. Courts cannot separate thr. legal from the illegal parts of an order of the commission, and if any part is illegal, must refuse to enforce. Int. Com. Com. v. Lake Shore & M. S. Ry. Co., 134 Fed. 942, 947. The findings of fact of the commission should be separated from its argu- ments, opinions and conclusions. AVestern N. Y. & P. R. Co. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. Affirmed. Penn Refining Co. v. Western N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. . "Prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact ; and, if not rebutted, remains sufficient for the purpose. ' ' Tift V. So. Ry. Co., 138 Fed. 753, 759. Affirmed. So. Ry. Co. V. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. Section cited to show that commission may sue in its ovm name to enforce its orders. Tex. & Pac. R. Co. v. Int. Com. Com., 162 U. S. 197, 203, 40 L. Ed. 940, 942, 16 Sup. Ct. 666. This section applies to complaints brought under the fourth section, notwithstanding the proviso of the last named section. Int. Com. Com. v. Alabama M. R. Co., 168 U. S, 144, 169, 170, 40 L. Ed. 414, 424, 18 Sup. Ct. 45. Under section eleven of the act of March 3, 1891 (26 Stat. L. 829, chap. 517), a supersedeas may be granted by the circuit court of appeals, when an appeal is granted on a suit brought under section six- teen of the act to regulate commerce. L. & N. R. Co. v. Behl- mer, 169 U. S. 644, 42 L. Ed. 889, 18 Sup. Ct. 502. Case dis- missed without prejudice to right of commission to further in- vestigate conformably to the law announced by the court. L. & N. R. Co. V. Behlmer, 175 U. S. 648, 676, 44 L. Ed. 309, 320, 20 Sup. Ct. 209 ; East Tenn., Va. & Ga. Ry. Co. v. Int. Com. Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516 ; Int. Com. Com. v. Clyde S. S. Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512; Int. Com. Com. v. Chicago, B. & Q. R. Co., 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824. The statute gives prima facie effect to the findings of the commission, and when these findings are concurred in by the circuit court, they should not be interfered with unless the record discloses clear and unmistakable error. Cincinnati, II. & D. R. Co. v. Int. Com. Com., 206 U. S. 142, 154, 51 L. Ed. 995, 1000, 27 Sup. Ct. 648; 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 466, 51 L. Ed. 1128, 1138, 27 Sup. Ct. 700. The parties at interest may proceed on the order of the commission in the circuit court. So. Ry. Co. v. Tift, 206 U. S. 472 Acts Regulating Commerce. [§546. 428, 437, 51 L. Ed. 1124, 1127, 27 Sup. Ct. 709. "The findings of the commission are made by law prima facie true. This court has ascribed to them the strength due to the judgment of a tribmial appointed by hiw and informed by experience." 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 454, 51 L. Ed. 1128, 1133, 1134, 27 Sup. Ct. 700. § 546. Carrier failing to comply with order for reparation, suit may be brought thereon in United States circuit courts, the order being prima facie evidence of right to recover. — If a car- rier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the circuit court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, a petition setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit shall proceed in all respects like other civil suits for dam- ages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reason- able attorney's fee, to be taxed and collected as a part of the costs of the suit. First part of second paragraph of section sixteen. For old law, see § 545. • Basis of reparation fixed, but the courts left to determine the* amount. Independent Refiners' Asso. v. Western New York & P. R. Co., 6 I. C. C. R. 378, 449, 454. Reparation disallowed. Western New York & P. R. Co. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. Affirmed. Penn Refining Co. v. Western N. Y. & P. R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. No suit prior to an award by the commission. Howard Supply Co. V. Chesapeake & 0. Ry. Co.. 162 Fed. 188, 191. Texas & Pae. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. § 547. Limitation on action for damages. — All complaints for the recovery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not § 548,] Acts Regulating Commerce. 473 after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit court within one year from the date of the order, and not after : Provided, That claims accrued prior to the passage of this act may be presented within one year. Last part of second paragraph of section sixteen. Prior to this amendment no limitation was prescribed by the act, and the commission held that the law of the state in which was located the circuit court in which suit was brought on the order of reparation would control as to limitation. Cattle Rais- ers' Asso. V. C, B. & Q. R. Co., 10 I. C. C. R. 83, 100, 101, 102, 103, 104. Question as to limitation raised, but not decided. Oshkosh Logging Tool Co. v. Chicago & N. W. Ry. Co., 14 I. C. C. R. 109, 113. The limitation period of one year begins to run August 28, 1906, and claims arising prior to that date, which is the effective date of the amended act, though accrued more than two years prior thereto, may be presented prior to midnight of August 28, 1907. Nicola, Stone & Myers Co. v. L. & N. R. Co., 14 I. C. C. R. 199, 206. A written presentation of a claim wdthout formal complaint stops limitation. Venus v. St. Louis, I. M. & S. Ry. Co., 15 I. C. C. R. 136. The cause of action accrues when the carrier violates the act. Re When a Cause of Action Accrues. 15 I. C. C. R. 201. Or when freight charges are paid. Kile & Morgan Co. v. Deepwater Ry. Co., 15 I. C. C. R. 235. This statute does not apply to suits brought primarily in a. federal court. Lyne v. Delaware, L. & W. R. Co., 170 Fed. 847. § 548. All parties jointly awarded damages may sue as plain- tiffs against all carriers parties to the award. — In such suits all parties in whose favor the commissi(m may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiff's could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where tlie suit is l)rought may be made in any dis- trict where such defendant carrier has its principal operating office. In case of such joint suit tlie recovery, if any, may })e by 474 Acts Regulating Commerce. [§ 549. judgment iu favor of any one of such plaintiffs, against the de- fendant found to be liable to such plaintiff. Third paragraph of section sixteen. § 549. Service of orders of commission. — Every order of the commission shall be forthwith served by mailing to any one of the principal officers or agents of the carrier at his usual place of business a copy thereof; and the registry mail receipt shall be prima facie evidence of the receipt of such order by the car- rier in due course of mail. Fourth paragraph of section sixteen. § 550. Commission may suspend or modify its orders. — The commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. Fifth paragraph of section sixteen. Power exercised. Traffic Bureau Merchants Ex. of St. Louis V. Chicago, B. & Q. E. Co., 14 I. C. C. R. 551. § 551. Punishment for knowingly disobeying an order issued under section fifteen. — It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in effect. Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of section fifteen of this act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. The forfeiture provided for in this act shall be payable into the treasury of the United States, and shall be recoverable in a civil suit in the name of the United States, brought in the dis- trict where the carrier has its principal operating office, or in any district through which the road of the carrier runs. Paragraphs six, seven and eight of section sixteen. § 552. District attorney and attorney-general to prosecute. Special attorneys may be employed. — It shall be the duty of the various district attorneys, under the direction of the Attorney- General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. The commission may, with the consent of the Attorney-General, employ special counsel in any proceeding § 553.] Acts Regulating Commerce. 475 under this act, paying the expenses of such employment out of its OA\Ti appropriation. Paragraph nine of section sixteen. § 553. Courts may enforce obedience to commission's orders, mandatory or otherwise. — If any carrier fails or neglects to obey any order of the conunission, other than for the payment of money, while the same is in effect, any party injured thereby, or the commission in its own name, may apply to the circuit court in the district where such carrier has its principal operating office, or in which the violation or disobedience of such order shall happen, for an enforcement of such order. Such applica- tion shall be by petition, which shall state the substance of the order and the respect in which the carrier has failed of obedience, and shall be served upon the carrier in such manner as the court may direct, and the court shall prosecute such inquiries and make such investigations, through such means as it shall deem needf al in the ascertainment of the facts at issue or which may arise upon the hearing of such petition. If, upon such hearing as the court may determine to be necessary, it appears that the order was regularly made and duly served, and that the carrier is in disobedience of the same, the court shall enforce obedience to such order by a writ of iujmiction, or other proper process, mandatory or otherwise, to restrain such carrier, its officers, agents, or representatives, from further disobedience of such order, or to enjoin upon it, or them, obedience to the same ; and in the enforcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to its writs of injunction and mandamus. Tenth paragraph of section sixteen. § 554. Appeals to Supreme Court priority of hearing. — From any action upon such petition an appeal shall lie by either party to the Supreme Court of the United States, and in such court the case shall have priority in hearing and determination ovei all other causes except criminal causes, but such appeal shall not vacate or suspend the order appealed from. Eleventh paragraph of section sixteen. § 555. Venue of suits to enjoin, set aside, annul, or suspend an order of the commission. — The venue of suits brought in any of the circuit courts of the United States against the commis- sion to enjoin, set aside, annul, or suspend any order or re- quirement of the commission shall bo in the district where the 476 Acts Regulating Commerce, [§ 556, carrier against whom such order or requirement may have been made has its principal operating office, and may be brought at any time after such order is promulgated. And if the order or requirement has been made against two or more carriers then in the district where any one of said carriers has its principal operating office, and if the carrier has its principal operating office in the District of Columbia then the venue shall be in the district where said carrier has its principal office ; and jurisdic- tion to hear and determine such suits is hereby vested in such courts. First part of the twelfth paragraph of section sixteen. Jurisdiction under the old law of suits by the commission. Int. Com. Com. v. Tex. & Pac. Ry. Co., 57 Fed. 948, 6 C, C, A. 653, 20 U. S. App. 1, 4 I. C. R. 408 ; Int. Com. Com. v. So, Pac, Co., 74 Fed. 42. Under the Hepburn law, Sanborn, Hook and Adams, Judges, announce this proposition : "V\^e refrain from expressing any opinion concerning what other jurisdiction, if any, is conferred upon this court bj'' the broad and comprehensive language of the, Hepburn act, author- izing it to "enjoin, set aside, annul or suspend any order or re- quirement of the commission." All we are required to hold, and all we do hold, is that this court has ample jurisdiction to set aside or suspend any order of the commission resulting from a misconception and misapplication of a law to conceded or undis- puted facts." Stickney v. Int. Com. Com., 164 Fed. 638, 644, Rules announced in a suit to set aside an order of the commis- sion. Judges Van Devanter, Hook and Adams. Mo., Kan. & Tex. R. Co. V. Int. Com. Com., 164 Fed. 645 ; C, R, I. & P, R, Co. V. Int. Com. Com. (Missouri River Rate Case), 171 Fed. 680. § 556. Expediting act applicable to such suits as well as suits to enforce orders of commission. — The provisions of "An act to expedite the hearing and determination of suits in equity, and so forth." approved February eleventh, nineteen himdred and three, shall be, and are hereby, made applicable to all such suits, including the hearing .on an application for a preliminary in- junction, and are also made applicable to any proceeding in equity to enforce any order or requirement of the commission, or any of the provisions of the act to regulate commerce ap- proved February fourth, eighteen himdred and eighty-seven, and all acts amendatory thereof or supplemental thereto. It shall § 557.] Acts Regulating Commerce. 477 be the duty of the Attorney-General in every such case to file the certificate provided for in said expediting act of February eleventh, nineteen hundred and three, as necessary to the appli- cation of the provisions thereof, and upon appeal as therein au- thorized to the Supreme Court of the United States, the case shall have in such court priority in hearing and determination over all other causes except criminal causes. Second part of paragraph twelve of section sixteen. "When two of the three circuit judges agree case will not be certified to the Supreme Court. So. Pac. Ter. Co. v. Int. Com. Com., 166 Fed. 134, C. C. A. § 557. Limitation on right to grant injunction against com- mission's order. Provisions for appeal from interlocutory order. — Provided, That no injunction, interlocutory order or decree sus- pending or restraining the enforcement of an order of the com- mission shall be granted except on hearing after not less than five days' notice to the commission. An appeal may be taken from any interlocutory order or decree granting or continuing an injunction in any suit, but shall lie only to the Supreme Court of the United States: Provided further, That the ap- peal must be taken within thirty days from the entry of such order or decree and it shall take precedence in the appellate court over all other causes, except causes of like character and crim- inal causes. Proviso of paragraph twelve of section sixteen. Preliminary injunction denied. Delaware, L. & W. E. Co. v. Int. Com. Com., 155 Fed. 512; So. Pac. Ter. Co. v. Int. Com. Com., 166 Fed. 3 34. Preliminary injunction granted. Dela- ware, L. & AV. R. Co. V. Int. Com. Com., 166 Fed. 498; Dela- ware, L. & W. R. Co. V. Int. Com. Com., 166 Fed. 499. In the last named case, under the peculiar facts and at the request of the commission, shipper allowed to intervene. 169 Fed. 894. See Missouri River Rate Case (C. R. I. & P. R. Co. v. Int. Com. Com.), 171 Fed. 680. § 558. Schedules, contracts, etc., must be filed with the com- mission, and, when filed, original or certified copies prima facie evidence. — The copies of schcclulos and tariffs of rates, fares, and charges, and of all contracts, agreements, or arrangements between common carriers filed with the commission as lierein provided, and the statistics, tables, and figures contained in the annual r<'i)orts of carriers made to tlie commission, as required 478 Acts Kegt'i.ating Commerce. [§559. by the provisions of this act, shall be preserved as public records in the custody of the secretary of the commission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the commission and in all ju- dicial proceedings; and copies of and extracts from any of said schedules, tariffs, contracts, agreements, arrangements, or re- ports made public records as aforesaid, certified by the secretary under its seal, shall be received in evidence with like effect as the originals. Last paragraph of section sixteen. § 559. Rehearings may be granted by commission. — That after a decision, order or requirement has been made by the commis- sion in any proceeding any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the commission in its discre- tion to grant such rehearing if sufficient reason therefor be made to appear. Applications for rehearing shall be governed by such general rules as the commission may establish. No such applica- tion shall excuse any carrier from complying with or obeying any decision, order, or requirement of the commission, or oper- ate in any manner to stay or postpone the enforcement thereof, without the special order of the commission. In case a rehear- ing is granted the proceedings thereupon shall conform as nearly as may be to the proceedings in an original hearing, except as the commission may otherwise direct ; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the commission may reverse, change, or modify the same accordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order. Section 16-a added by the act of June 29, 1906. The commission exercised the right to grant rehearings prior to this amendment. Rehearing not granted unless commission is satisfied result would be changed. Riddle v. Pittsburg & L. E. R. Co.. 1 I. C. C. R. 490, 1 I. C. R. 773. After hearing com- plaint on pleadings and proof, a rehearing will not be granted to one not a party to the proceedings. Re Petition of Produce Exchange. 2 I. C. C. R. 588, 2 I. C. R. 412. Application should § 560.] Acts Regulating Commerce. 479 be verified and should state the nature of the new testimony. Commission may of its O'^^ti motion grant a rehearing when gen- eral public interest involved. Rice v. Western N. Y. & P. R. Co., 2 I. C. C. R. 389, 2 I. C. R. 298. Will not reopen just to redis- cuss the facts and law already before the commission. ]\Iyers V. Penn. Co., 2 I. C. C. R. 573, 2 I. C. R. 403, 544. Upon re- hearing with additional evidence former order set aside. Bates V. Penn. R. Co., 4 I. C. C. R. 281, 3 I C. R. 296. Petition must be supported by proof showing prima facie error. Proctor & Gamble v. Cincinnati, H. & D. R. Co., 4 I. C. C. R. 443, 3 I. C. R. 374. A form of petition. Haddock v. Delaware, L. & W. R. Co., 3 I. C. R. 410. Application denied. Railroad Com. of Fla. V. Savannah, F. & AV. Ry. Co., 5 I. C. C. R. 136, 3 I. C. R. 750; Delaware State Grange v. New York, P. & N. R. Co., 5 I. C. C. R. 161, 3 I. C. R. 828; Brady v. Penn. R. Co., 4 I. C. R. 283; Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 10 I. C. C. R. 83, 106, 12 I. C. C. R. 507, 514; Johnston-Larimer Dry Goods Co. V. A. T. & S. F. Ry. Co., 12 I. C. C. R. 189; Poor V. Chicago, B. & Q. R. Co., 12 I. C. C. R. 469 ; Muscogee Com- mercial Club V. Mo., Kan. & Tex. Ry. Co., 13 I. C. C. R. 68 ; Hussey v. Chicago, R. I. & P. Ry. Co., 14 I. C. C. R. 215; Ran- dolph Lumber Co. v. Seaboard A. L. Ry. Co., 14 I. C. C. R. 338. Granted to correct the record. Independent Refiners' Asso. v. Penn. R. Co.. 4 I. C. R. 369. Not granted when sought to se- cure reparation upon questions not considered in original case. Rice V. Western N. Y. & P. R. Co., 6 I. C. C. R. 455. Rehearing granted. Page v. Delaware, I. & W. R. Co., 6 I. C. C. R. 548. Re IMatters of Allowance to Elevators. 12 I. C. C. R. 85 ; 13 I. C. C. R. 498; 14 I C. C. R. 315, 320; Thompson Lumber Co. v. 111. Cent. R. Co., 14 I. C. C. R. 566. Rehearing had, but. after hearing, dismissed or denied. Cattle Raisers' Asso. v. Ft. Worth & D. C. Ry. Co., 7 I. C. C. R. 555-a; City of Danville v. So. Ry. Co., 8 I. C. C. R. 571. Rehearing granted that the commission might exercise the power granted it under act June 29, 1906. Cattle Raisers' Asso. v. Mo., Kan. & Tex. Ry. Co., 12 I. C. C. R. 1 ; Banner Milling Co. v. New York C. & H. R. R. Co., 14 I. C. C. R. 398, but not so when complainant neglected to enforce in the courts a former order. Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 12 I. C. C. R. 6. Power to grant discretionary. City of Atr-hisoM v. :\lo. Pac. Ry. Co., 12 I. C. C. R. 254. § 560. Procedure before the commission. — That the coinmis- 480 Acts Regulating Commerce. [§561. sion may conduct its proceedings in such nianner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the commission shall constitute a quorum for the transaction of business, but no commissioner shall partici- pate in any hearing or proceeding in which he has any pecuniary interest. Said commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said commission and be heard, in person or by attorney. Every vote and official act of the com- mission shall be entered of record and its proceedings shall be public upon the request of either party interested. Said com- mission shall have an official seal, which shall be judicially no- ticed. Either of the members of'the commission may administer oaths and affirmations and sign subpoenas. Original section seventeen, except the words ''and sign sub- poenas" added at the end by act March 2, 1889. Under authority of this section, the commission has fornuilated rules of procedure, ante §§ 167, 168. § 561. Salaries and expenses of the commission. — That each commissioner shall receive an annual salary of ten thousand dol- lars, payable in the same manner as the judges of the courts of the United States. The commission shall appoint a secretary^ who shall receive an annual salary of three thousand five hun- dred dollars, payable in like manner. The commission shall have authority to employ and fix the compensation of such other em- ployees as it may find necessary to the proper performance of its duties. Until otherwise provided by law, the commission may hire suitable offices for its use, and shall have authority to procure all necessary office supplies. AYitn esses summoned be- fore 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 necessary expenses for transportation incurred by the commissioners, or by their employees under their orders, in making any investiga- tion, or upon official business in any other places than the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the commission. § 562. [ Acts Regulating Commerce. 481 Section eighteen as amended by act of March 2, 1889. The original act made the employment and salaries of em- ployees subject to the approval of the Secretary of the Interior, and directed that cabinet officer to furnish the commission with suitable offices. The section as it now is, is the amendment of March 2, 1889, changing the original act in the above two par- ticulars. The salary up to June 29, 1906, was seven thousand five hundred dollars. The present salary is made to conform to section twenty -four of the present act. Cited, IMoseley v. United States, 35 Ct. Claims 355; United States v. Mosley, 187 U. S. 322, 47 L. Ed. 198, 23 Sup. Ct. 90. § 562. Principal office of commission in Washington, but may prosecute inquiries elsewhere. — The principal office of the com- mission shall be in the city of Washington, where its general sessions shall be held ; but whenever the convenience of the pub- lic 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 subject to the provisions ol this act. Section nineteen as originally enacted. The commission, or a portion of its members, frequently hold sessions out of Washington for the purpose of taking evidence in complaints filed with it. § 563. Annual reports required and what they shall contain. Penalties for failure to make. — That the commission is hereby au- thorized to require annual reports from all common carriers sub- ject to the provisions of this act, and from the owners of all railroads engaged in interstate commerce as defined in this act; to prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the connnission may need information. Such annual reports shall sliow in detail the amount of capital stock issued, the amounts paid tlierefor, and tlie manner of payment for the same; the dividends |)ai(I, Ihc sui-plns fund, if ajiy, and tlie number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the carrier's prop- erty, franchises and ('(juipitienls; llie number of employees and the salaries paid each class; the accidents to passengers, em- 482 Acts Regulating Commerce, [§ 563. ployees, and other persons, and the causes thereof; the amounts expended for iniproveiiicnts each 3'ear, how expended, and tht character of siicli im]>r()vemonts; the earnings and receipts 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, in- cluding an annual balance sheet. Such reports shall also con- tain such information in relation to rates or regulations concern- ing fares or freights, or agreements, arrangements, or contracts affecting the same as the commission may require ; and the com- mission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this act, prescribe a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept. Said detailed reports shall contain all the required statistics for the period of twelve months ending on the thirtieth day of June in each year, and shall be made out under oath and filed with the commission, at its office in Washington, on or before the thirtieth day of September then next following, unless ad- ditional time be granted in any case by the commission ; and if any carrier, person, or corporation subject to the provisions of this act shall fail to make and file said annual reports within the time above specified, or within the time extended by the commis- sion for making and filing the same, or shall fail to make spe- cific answer to any question authorized by the provisions of this section within thirty days from the time it is lawfully required so to do, such parties shall forfeit to the United States the sum of one hundred dollars for each and every day it shall continue to be in default with respect thereto. The commission shall also have authority to require said carriers to file monthly reports of earnings and expenses or special reports within a specified period, and if any such carrier shall fail to file such reports Avithin the time fixed by the commission it shall be subject to the forfeiture last above provided. Said forfeitures shall be recovered in the manner provided for the recovery of forfeitures under the provisions of this act. The oath required by this section may be taken before any person authorized to administer an oath by the laws of the state in which the same is taken. § 563.] Acts Kegulating Commerce. 483 First four paragraphs of section twenty as amended by the act of June 29, 1906. The original section read : "That the commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this act. to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same ; the dividends paid, the surplus fund, if any, and the number of stockholders ; the funded and floating debts and the interest paid thereon ; the cost and value of the carrier's property, franchises and equipment; the number of employees and the salaries paid each class; the amounts expended for 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 car- rier each year, including an annual balance sheet. Such re- ports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, ar- rangements, or contracts with other common carriers, as the com- mission may require ; and the said commission may, within its discretion, for the purpose of ennabling it the better to carry out the purposes of this act, prescribe (if in the opinion of the commission it is practicable to prescribe such uni- formity 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 ac- counts, and the manner in which such accounts shall be kept." The commission formerly required an apportionment of ex- penses between freight and passenger business, this being found to be arbitrary and valueless was discontinued. Consolidated Forwarding Co. v. So. Ky. Co., 10 I. C. C. R. 590, 600. The old law did not apply to a carrier doing purely intrastate business. Int. Com. Com., v. Bellaire, Z. & C. Ry. Co.. 77 Fed. 942; United States V. Chicago, K. & S. R. Co., 81 Fed. 783. But does apply wIk'h the state carrier joins in a through rate of charges. Ignited States ex rel. Int. Com. Com. v. Seaboard Ry. Co., 82 Fed. 563, •184 Acts Kegflating Commerce. [§564. but mandamus should not issue to compel a report by an officer who has resigned. Same case, 85 Fed. 955. Act applies when state carrier engages in transporting interstate conmierce, even though not on a through bill of lading and charging its full local charges. United States v. Colorado & N. W. R. Co., 157 Fed. 321, 342, 85 C. C. A. 27. Language from this section quoted as showing the scope of the commission's power to make investiga- tions. Int. Com. Com. v. Harriman, 157 Fed. 432, 438. Re- versed. Harriman v. Int. Com. Com., 211 U. S. 407, 53 L. Ed. , 29 Sup. Ct. 115. Federal courts prior to June 29, 1906, had no jurisdiction by original proceeding in mandamus to com- pel filing of reports. United States v. Lake S. & M. S. Ry. Co., 197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538. States may re- quire reports not inconsistent with act of Congress. People v. Chicago, I. & L. Ry. Co., 223 111. 581, 79 N. E. 144. § 564. Commission may prescribe form of keeping accounts and inspect same. — The commission may, in its discretion, pre- scribe the forms of any and all accounts, records, and memoranda to be kept by carriers subject to the provisions of this act, in- cluding the accounts, records, and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The commission shall at all times have access to all accounts, records, and memoranda kept by carriers subject to this act, and it shall be unlawful for such carriers to keep any other accounts, records, or memoranda than those prescribed or approved by the commission, and it may employ special agents or examiners, who shall have authority under the order of the commission to inspect and examine any and all accounts, records, and memoranda kept by such carriers. This provision shall apply to receivers of car- riers and operating trustees. Fifth paragraph of section twenty as amended by act June 29, 1906. In compliance with and under the authority of this section, the commission has prescribed an elaborate and uniform system of accounts for carriers subject to the act. Pierce's Digest Deci- sions of Interstate Commerce Commission. 825-1178. § 565. Penalties for failure to keep accounts and for falsify- ing: the record. — In case of failure or refusal on the part of any such carrier, receiver, or trustee to keep such accounts, records, and memorpnda on the books and in the manner prescribed by the commission, or to submit such accounts, records, or mem- § 566,] Acts Regulating Commerce. 485 oranda as are kept to the inspection of the commission or any of its authorized agents or examiners, such carrier, receiver, or trustee shall forfeit to the United States the sum of five hundred dollars for each such offense and for each and every day of the continuance of such offense, such forfeitures to be recoverable in the same manner as other forfeitures provided for in this act. Any person who shall willfully make any false entry in the accomits of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device, falsify the record of any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertain- ing to the carrier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the commission, shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than one thousand dollars nor more than five thousand dollars, or imprisonment for a term not less than one year nor more than three years, or both such fine and imprisonment. Sixth and seventh paragraphs of section twenty as amended by act June 29, 1906. § 566. Penalty for an examiner divulging information re- ceived as such. — Any examiner who divulges any fact or informa- tion which may come into his knowledge during the course of such examination, except in so far as he may be directed by the commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not moi-e than five thousand dollars or imprisonment for a term not exceeding two years, or both. Eighth paragraph of section twenty as amended by act June 29, 1906. § 567. United States circuit and district courts may, upon ap- plication of Attorney-General at request of commission, enforce provisions of act. — That the circuit and disti-ict courts of llic I'nited States shall have jurisdiction, upon the ajiplicMtion of the Attorney-Genera] at the reciucst of the comiiiission, alleging a failure to comply willi or a violation of any of llic provisions of said act to regulate commerce or oF nny act supplementary thereto or amendatory thereof by any common carrier, to issue 486 Acts Regulating Commerce. [§ 568. a writ or writs of mandamus commanding such common carrier to comply with the provisions of said acts, or any of them. Ninth paragraph of section twenty as amended by act June 29, 1906. The authority with reference to reports of the carriers did not exist prior to the Hepburn act. United States v. Lake S. & M. S. Ry. Co., 197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538. § 568. Commission may employ agents or examiners. — And to carry out and give effect to the provisions of said acts, or any of them, the conunission is hereby authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence. Tenth paragraph of section twenty as amended by act Jime 29, 1906. § 569. Receiving carrier liable for loss, remedy cumulative. — That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any cormnon carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regu- lation shall exempt such common carrier, railroad, or transpor- tation company from any liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sus- tained the amoimt of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evi- denced by any receipt, judgment, or transcript thereof. Last two paragraphs of section twenty as amended by act Jime 29, 1906. This section is fully and ably discussed and authorities cited in Re Released Rates, 13 I. C. C. R. 550, et. seq. Provision con- stitutional. Smeltzer v. St. L. & S. F. R. Co., 158 Fed. 649. Riverside Mills v. Atlantic C. L. R. Co., 168 Fed. 987, 990. A § 570.] Acts Regulating Commerce. 487 bill of lading limiting liability to fifty dollars void. Greenwall V. Weir, 111 N. Y. Sup. 235, 59 Misc. Rep. 431 ; Schutte v. Weir, 111 N. Y. Sup. 240, 59 :\Iiss. Rep. 438 ; Silverman v. Weir, 114 N. Y. Sup. 6. Section valid. So. Pac. Co. v. Crenshaw Bros. 5 Ga. App. 675, 65 S. E. 865. Galveston, H. & S. A. Ry. Co., V. Crow, 117 S. W. 170. Tex. Civ. App. § 570. Annual Reports by commission 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 distributed as are the other reports trans- mitted 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 reg- ulation 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 per- sons employed by said commission. Section twenty-one as amended by act ]\Iarch 2, 1889. The original act said "reports issued from the Interior De- partment," where the present act says "reports transmitted to Congress." The amendment also added the words, "and the names and compensation of the persons employed by said com- mission." Cited in discussing the scope of the powers of the commission. United States v. Lake S. & M. S. Ry. Co., 197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538 ; Harriman v. Int. Com. Com., 211 U. S. 417, 420, 421, 53 L. Ed. , 29 Sup. Ct. 115. § 571. Circumstances under which reduced or free fares and rates may be given. — That nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, state, or municipal governments, or for charitable purposes, or to and from fairs and expositions for exhibition thereat (or the free carriage of destitute and home- less persons transported by charitable societies, and the neces- sary agents employed in such transportation), or the issuance of mileage, excursion, or commutation passenger tickets; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion (or to munici- pal governments for the transportation of indigent persons, or to the inmates of the National Homes or State Homes for Dis- abled Volunteer Soldiers, and of Soldiers' and Sailors' Orphan 488 Acts Regulating Commerce. [§ 571. Homes, including those about to enter and those returning home after discharge, under arrangements with the boards of man- agers of said homes) ; nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any rail- road company or companies from exchanging passes or tickets with other railroad companies for their officers and employees. Part of section twenty-two as amended by act March 2, 1889. The original act used the words ''apply to" in the first line where the amended act uses the word ' ' prevent. ' ' The words in brackets in the above copied section were added by the act of March 2, 1889. Individuals desiring to make proposals to sell the government Indian supplies may receive special rates. Re Indian Supplies. 1 I. C. R. 22. Pass issued to induce the holder to throw busi- ness to carrier illegal. Slater v. N. Pac. R. Co., 2 I. C. C. R. 359, 2 I. C. R. 243. Men eminent for public service not on that account alone entitled to use passes. Re Carriage of Persons Free or at Reduced Rates. 5 I. C. C. R. 69, 3 I. C. R. 717. Il- legal to grant pass to members of city council. Harvey v. L. & N. R. Co., 5 I. C. C. R. 153, 3 I. C. R. 793. Land and immi- gration agents not entitled to free pass. Re Complaint of Illi- nois Central R. Co. 12 I. C. C. R. 7. Rule announced as to em- ployees of telegraph companies. Re Railroad Telegraph Con- tracts. 12 I. C. C. R. 10. Caretakers of newspapers not ex- cepted by section. Re Free Transportation of Newspaper Em- ployees. 12 I. C. C. R. 15. Nor are employees of baggage ex- press companies. Re Right of Railroad Companies to Exchange Transportation with Transfer Companies. 12 I. C. C. R. 39. Section cited. Export Shipping Co. v. Wabash R. Co.. 14 1. C. C. R. 437, 455. Exception does not apply to families of officers or employees. Ex parte Koehler, 31 Fed. 315, 12 Sawy. 446. Sec- tion as originally enacted by making certain exceptions was not intended to prohibit party rate tickets. Int. Com. Com. v. B. & 0. R. Co., 43 Fed. 37, 45, 3 I. C. R. 192. Affirmed, with same holding, 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. To issue pass to person not excepted by section is illegal discrimination. Re Charge to Grand Jury. 66 Fed. 146. Exceptions do not apply to officers of express companies. United States v. Well Fargo Express Co., 161 Fed. 606, 609. Affirmed. American Ex. Co. and other Express Co's. v. United States, 212 U. S. § 572.] Acts Kegi'lating Commerce. 489 522. 53 L. Ed. , 29 Sup. Ct. . Publishers can not pay for transportation by advertising. United States v. Chicago, I. & L. Ry. Co., 163 Fed. 114. Does not prohibit free transportation of employees of the Federal Government engaged in the postal service. 18 Op. Atty.-Gen. 587. § 572. Existing- remedies not abridged or altered. Pending litigation not affected. — And nothing in this act contained shall in any way abridge or alter the remedies now existing at com- mon law or by statute, but the provisions of this act are in addi- tion to such remedies: Provided, That no pending litigation shall in any way be affected by this act. Part of section twenty-two as originally enacted. Right of courts to enjoin an illegal advance in rates before they become effective not supplanted by special remedies granted l)y the act to regulate commerce. Tift v. So. Ry. Co., 123 Fed. 789, 138 Fed. 753. Affirmed. So. Ry. Co. v. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709 ; Jewett Bros. v. Chicago, M. & St. P. R. Co., 156 Fed. 160; Kalispell Lumber Co. V. Great N. R. Co., 157 Fed. 845. Reversed because rate had be- come effective before injunction applied for. 165 Fed. 25. C. C. A. . Kiser v. Cent, of Ga. Ry. Co., 158 Fed. 193; Macon Grocery Co. v. Atlantic C. L. R. Co., 163 Fed. 736. Re- versed. Atlantic C. L. R. Co. v. iMacon Grocery Co., 166 Fed. 206, C. C. A. . Nor. Pac. Ry. Co. v. Pacific Coast Lumber :\Ifg. Asso.. 165 Fed. 1, C. C. A. . Union Pac. R. Co. v. Oregon & W. L. Mfg. Asso., 165 Fed. 13, C. C. A. . Contra if the rates have become effective. Potlatch Lumber Co. v. Spo- kane Falls & N. Ry. Co., 157 Fed. 588; Great N. Ry. Co. v. Kalispell Lumber Co., 165 Fed. 25, C. C. A. . Circuit courts can not enjoin the taking effect of an illegal advance prior to action by the Interstate Commerce Commission. xVtltn- tic Coast L. R. Co. v. Macon Grocery Co., 166 Fed. 206, C. C. A. . While a court has jurisdiction to enjoin an illegal ad- vance before it becomes effective, it cannot do so merely as an- cillary to a complaint before the commission. Jewett Bros. v. Chicago, M. & St. P. Ry. Co., 156 Fed. 160. The cases holding that injunctions may be granted, supra, also hold that jurisdic- tion in the Federal courts being exclusive, suit may be brought wherever the defendant can be found and served. In Sunder- land Bros. V. Chicago, R. I. & P. R. Co., 158 Fed. 877, it was held that suit could only be brought in the district of the residence 490 Acts Eegulating Commerce. [§ 573. of either the complainant or the defendant. Notwithstanding this section, courts have no jurisdiction to award damages for excessive rates prior to a determination by the commission that such rates are excessive. Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 44C, 51 L. Ed. 553, 56], 27 Sup. Ct. 350. But this decision does not mean that an illegal advance may not be enjoined. So. Ry. Co. v. Tift, 206 IT. S. 428, 51 L. Ed. 112, 27 Sup. Ct. 709. Same effect as Abilene case, supra. Gatton v. Chicago etc., R. Co., 95 Iowa 113. § 573. Interchangeable mileage tickets, how issued. — Provid- ed further, That nothing in this act shall prevent the issuance of joint interchangeable five-thousand-mile tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand or more miles. But be- fore any common carrier, subject to the provisions of this act, shall issue any such joint interchangeable mileage tickets with special privileges, as aforesaid, it shall file with the Interstate Commerce Commission copies of the joint tariffs of rates, fares, or charges on which such joint interchangeable mileage tickets are to be based, together with specifications of the amount of free baggage permitted to be carried under such tickets, in the same manner as common carriers are required to do with regard to other joint rates by section six of this act ; and all the pro- visions of said section six relating to joint rates, fares, and charges shall be observed by said common carriers and enforced by the Interstate Commerce Commission as fully with regard to such joint interchangeable mileage tickets as with regard to other joint rates, fares, and charges referred to in said section six. It shall be unlawful for any common carrier that has issued or authorized to be issued any such joint interchangeable mileage tickets to demand, collect, or receive from any person or persons a greater or less compensation for transportation of persons or baggage under such joint interchangeable mileage tickets than that required by the rate, fare, or charge specified in the copies of the joint tariff of rates, fares, or charges filed with the com- mission in force at the time. The provisions of section ten of this act shall apply to any violation of the requirements of this proviso. Proviso to section twenty-two added by the act of February 8, 1895. Proviso applies only to the issuance of such tickets and the § 574.] Acts Eegulating Commerce. 491 terms, conditions and the persons to whom issued must be with- out discrimination. Larrison v. Chicago & G .T, R. Co., 1 I. C. C. R. 147, 1 I. C. R. 369. Excursion and commutation tickets are not the basis for fixing price of mileage tickets. Associated Wholesale Grocers of St. Louis v. Mo. Pac. R. Co., 1 I. C. C. R. 156, 1 I. C. R. 393. Mileage, excursion or commutation tickets must be offered impartially. Re Passenger Tariffs. 2 I. C. C. R. 649, 2 I. C. T. 445. Party rates should not be lower than contemporaneous single tickets. Pittsburg, C. & St. L. R. Co. v. B. & 0. R. Co., 3 I. C. C. R. 465, 2 I. C. R. 729. Order not en- forced. Int. Com. Com. v. B. & 0. R. Co., 43 Fed. 37, 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, 4 I. C. R. 92. Provision merely permissive and gives the commission no power to compel the issuance of mileage tickets. Sprigg v. B. & 0. R. Co., 8 I. C. C. R. 443, 450. See the able and cogent dissenting opinion of Mr. Commissioner Clements, 457 et seq. See Re Party Rate Tickets. 12 I. C. C. R. 95. Export Shipping Co. v. Wabash R. Co., 14 I. C. C. R. 437, 455. Tariff Circular No. 15-A, p. 61, rule 53. Tariff Circular 17-A, pp. 75 to 78. § 574. Discrimination may be prevented by writ of mandamus, remedy cumulative. — That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or condi- tions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, com- manding 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 ol fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending llie dctci-mination of the question of fact: Provided, That Uw. j-cniedy ]iorel)y given by writ of mandamus shall be cumulative, and shall not be held to exclude or inter- 492 Acts Eegulating Commerce. [§ 574. fere with other remedies provided by this act or the act to which it is a supplement. New section, section twenty-three, added by act ^March 2, 1889, and being section ten of that act. Cited in support of the holding that a carrier can not dis- criminate in favor of industries on its own line against indus- tries on a connecting line. Standard Lime & Stone Co. v. Cum- berland V. R. Co., 15 1. C. C. R. 620. Remedy is given only for unjust discrimination. United States v. N. & W. Ry. Co., 109 Fed. 831. Second suit abated pending appeal of the first one. United States v. Norfolk & W. Ry. Co., 114 Fed. 682. Suit brought under authority of section and 'amendment of Feb. 8, 1895. United States v. West Virginia N. R. Co., 125 Fed. 252. Affirmed, holding that writ may run against individuals. West Virginia N. R. Co. v. United States, 134 Fed. 198, 67 C. C. A. 220. Writ will not issue to enforce a private contract for car distribution. United States v. Norfolk & AV. R. Co., 138 Fed. 849. Reversed, holding that a right exists for an equal dis- tribution of cars, and a contract therefor is in aid of the act and may be enforced. Same style case, 143 Fed. 266, 74 C. C. A. 404. ]\landamus will not issue in suit by United States ex- cept under authority of a statute. United States ex rel. Knapp et al. Commissioners v. Lake Shore & M. S. Ry. Co., 197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538. Act cumulative and not exclusive of preexisting remedies. Tift v. So. Ry. Co., 123 Fed. 789, 138 Fed. 753. Affirmed. So. Ry. Co. v. Tift, ]48 Fed. 1021, 206 U. S. 428, 41 L. Ed. 1124, 27 Sup. Ct. 709. Car distribution determined in suit under section. United States v. B. & 0. R. Co., 154 Fed. 108. Sustained in so far as relief granted re- lator and reversed because other relief not granted. United States V. B. & 0. R. Co., 155 Fed. 113, C. C. A. . This section does not prevent an individual from applying to the commission, and this even when another operator has filed a complaint for mandamus. Merchants Coal Co. v. Fairmont Coal Co., 160 Fed. 769, 88 C. C. A. 23. Appealed to Supreme Court. 163 Fed. 1021, 1022. Injunction will not issue to prevent con- sidering private cars in making distribution of cars to coal com- panies. l\kjestic Coal & Coke Co. v. 111. Cent. R. Co., 162 Fed. 810. Private cars should be charged against their o^\Tlers in making distribution. United States ex rel. Pitcairn Coal Co. v. B. & 0. R. Co., 165 Fed. 113. § 575.] Acts Kegulating Commerce. 493 § 575. Number, terms, qualification, salary and appointment of commissioners. — That the Interstate ('ommerce Commission is hereby enlarged so as to consist of seven members with terms of seven years, and each shall receive ten thousand dollars an- nually. The qualifications of the commissioners and the manner of the payment of their salaries shall be as already provided by law. Such enlargement of the commission shall be accomplished through appointment by the President, by and with the advice and consent of the Senate, of two additional Interstate Commerce Commissioners, one for a term expiring December thirty-first, nineteen hundred and eleven, one for a term expiring December thirty-first, nineteen hundred and tw^elve. The terms of the present commissioners, or of any successor appointed to fill a vacancy caused by the death or resignation of any of the pres- ent commissioners, shall expire as heretofore provided by law. Their successors and the successors of the additional commis- sioners herein provided for shall be appointed for the full term of seven years, except that any person appointed to fill a vacancy shall be appointed only for the unexpired term of the commis- sioner whom he shall succeed. Not more than four commissioners shall be appointed from the same political party. Section twenty-four added by the act June 29, 1906. § 576. Existing laws as to obtaining testimony applicable to act. — That all existing laws relating to the attendance of wit- nesses and the production of evidence and the compelling of tes- timony under the act to regulate commerce and all acts amenda- tory thereof shall apply to any and all proceedings and hearings under this act. Section nine of the act of June 29. 1906. Cited in discussion of the power of the commission to make in- vestigations. Harriman v. Int. Com. Com., 211 IT. S. 407, 422, 53 L. Ed. , 29 Sup. Ct. 115. § 577. Repealing conflicting laws not to affect pending suits. — That all laws and parts of laws in conflict with the provisions of this act are hereby repealed ; but the amendments herein provided for shall not affect causes now pending in cour'ts of the United States, but such causes shall be prosecuted to a con- clusion in the manner heretofore provided hy law. Softion ten of the act June 29. 1906. Docs not prevent Ihe indielineiil oC Ihose violating the old law. Cnited Stales v. Standard Oil Co., 148 Fed. 719. 155 Fed. 494 Acts Regulating Commerce. [§ 578. 305. Reversed on other grounds. 164 Fed. 376, C. C. A. United States v. Chicago, St. P. & M. Ry. Co., same v. G. N. Ry. Co.. 151 Fed. 84. Affirmed, same ruling. Great N. Ry. Co. V. United States, 208 U. S. 452. 52 L. Ed. 567, 28 Sup. c"t. Applies to rebate cases and an indictment good under the Elkins law prior to its amendment remains good since. United States V. Delaware, L. & W. R. Co., 152 Fed. 269; United States v. New York C. & H. R. R. Co., 153 Fed. 630; Great N. Ry. Co. v. United States, 155 Fed. 945, 84 C. C. A. 93. Affirmed. 208 U. S. 452, 52 L. Ed. 567. 28 Sup. Ct. . United States v. Great N. R. Co., 157 Fed. 288, 290. § 578. Time of taking effect of act. — That this act shall take effect and be in force from and after its passage. Joint resolution of June 30, 1906, provides: "That the act entitled "An act to amend an act entitled 'An act to regulate commerce,' approved February 4, 1887, and all the acts amenda- tory thereof, and to enlarge the powers of the Interstate Com- merce Commission, shall take effect and be in force sixty days after its approval by the President of the United States." Section eleven of the act of Jime 29, 1906, and the joint reso- lution of June 30, 1906. The effective date of the act of June 29, 1906, was August 28, 1906. Nicola, Stone & Myers Co. v. L. & N. R. Co., 14 I. C. C. R. 199, 206. Joint resolution ineffective to prevent law becoming in force on the date of its approval by the President. United States v. Standard Oil Co., 148 Fed. 719. Reversed on other grounds. Standard Oil Co. v. United States. 164 Fed. 376, C. C. A. § 579. Parties defendant other than carriers in suit to enforce provisions of act. — That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be begun originally in any circuit court of the United States, it shall be lawful to include as par- ties, in addition to the carrier, all persons interested in or af- fected by the rate, regulation, or practice under consideration, and inquiries, investigations, orders and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same pro- visions as are or shall be authorized by law with respect to car- riers. § 580.] Acts Regulating Commerce. 495 Section two of the original act of February 19, 1903 (Elkins Act). In 1888 the commission held that it was proper to make parties all carriers interested in a through rate, though the complaint was not defective if only the initial carrier was a party. Hurl- burt V. Lake S. & M. S. R. Co., 2 I. C. C. R. 122, 2 I. C. R. 81. § 580. Equitable proceeding's may be instituted by the com- mission to restrain discrimination or departure from published rates. — That whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is com- mitting any discriminations forbidden by law, a petition may be presented alleging such facts to the circuit court of the United States sitting in equity having jurisdiction ; and when the act complained of is alleged to have been committed or as being committed in part in more than one judicial district or state, it may be dealt with, inquired of, tried, and determined in either such judicial district or state, whereupon it shall be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to or- dinary suits in equity, and to make such other persons or cor- porations parties thereto as the court may deem necessary, and upon being satisfied of the truth of the allegations of said peti- tion said court shall enforce an observance of the published tariffs or direct and require a discontinuance of such discrimina- tion by proper orders, writs, and process, which said orders, writs, and process may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of appeal as now provided by law. It shall be the duty of the several district attorneys of the United States, whenever the Attorney-General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to institute and prosecute such proceedings and the proceedings provided for by this act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said act approved February fourth, eighteen hun- dred and eighty-seven, entitled ''An act to regulate commerce and the acts amendatory thereof." 496 Acts Regilatixg Commerce. [§ 581. First part of section three of the act February 19, 1903 (El- kins Act), as originally enacted. Prior to this amendment suit could be maintained in the name of the United States to enjoin discriminaticm. United States v. Mo. Pac. K. Co., 65 Fed. 903, 5 I. C. R. 106. Affirmed by circuit court of appeals without written opinion. Reversed, holding that prior to Elkins Act such suit could not be maintained. Mo. Pac. R. Co. V. United States, 189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507; United States v. Atchison, T. & S. F. Ry. Co., 142 Fed. 176, 185, 186. Prior to this act a shipper could enjoin a discrimination prior to action by the commission. Interstate Stock Yards v. Indianapolis U. Ry. Co., 99 Fed. 472, 483. Cited by Supreme Court. 192 U. S. 568, 570, 48 L. Ed. 565, 569, 24 Sup. Ct. 339. Under this act violations occurring prior to its passage could be enjoined. United States v. Mich. Cent. R. Co., 122 Fed. 544. May enjoin giving rebates. United States v. Milwaukee Refrigerator T. Co., 145 Fed. 1007, 1010, citing Swift & Co. V. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276. Suit prosecuted under section. Armour Packing Co. V. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428. May enjoin giving transportation for advertising. United States V. Chicago, I. & L. R. Co., 163 Fed. 114. § 581. Immunity and compulsory attendance of witnesses. Production of hooks and papers. — And in proceedings under this act and the acts to regulate commerce the said courts shall have the power to compel the attendance of witnesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the mat- ter in controversy, and to compel the production of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to such transaction ; the claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on accoiuit of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or other- Avise, in such proceeding. Second part of section three of the act of February 19, 1903 (Elkins Act), as originally enacted. § 582. Expediting act applicable to suits brought under di- § 583.] Acts Eegulating Commerce. 497 rection of Attorney-General. — Provided, That the provisions of an act entitled "An act to expedite the hearing and determina- tion of suits in equity pending or hereafter brought under the act of July second, eighteen hundred and ninety, entiled ''An act to protect trade and commerce against unlawful restraints and monopolies." ''An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may hereafter be enacted, approved February eleventh, nineteen hundred and three," shall apply to any case prosecuted under the direction of the Attorney-General in the name of the Interstate Commerce Com- mission. Last part of section three of the act of February 19, 1903 (El- kins Act), as originally enacted. Cited holding that proviso did not prevent an action by com- mission to compel the production of papers. Int. Com. Com. v. Baird, 194 U. S. 25, 36. 48 L. Ed. 860. 865, 866, 24 Sup. Ct. 563. § 583. Repealing clause not affecting pending suits or accrued rights. When act takes effect. — That all acts and parts of acts in conflict with the provisions of this act are hereby repealed, but such repeal shall not affect causes now pending, nor rights which have already accrued, but such causes shall be prosecuted to a conclusion, and such rights enforced in a manner heretofore provided by law and as modified by the provisions of this act. This act shall take effect from its passage. Public, No. 103, approved February 19, 1903. Sections four and five of act February 19, 1903 (Elkins Act), as originally enacted. Section four did not save a suit prosecuted to a decree prior to the enactment of the Elkins Act. Mo. Pac. E. Co. v. United States. 189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507. But prose- cution for injunction against acts committed prior to the passage of the Elkins law could be maintained. United States v. Mich. Cent. R. Co., 122 Fed. 544. § 584. Certain cases given precedence and hearing expedited. Hearing before three judges. — Be it onncted by the Senate and House of Roprosentaives of the Ignited States of America in Congress asseinblod. That in any suit in equity pending or here- after brought in any circuit court of the United States under thn act entitled "An ar-t to protect trade and commerce against unlawful restraints and monoplies," approved July second, 498 Acts Regulating Commerce. [§585, eighteen linndred and ninety, "An act to regulate comiiierce," approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney- General may file with the clerk of such court a certificate that, in his opinion, the case is of general public importance, a copy of whicli shall be immediately furnished by such clerk to each of the circuit judges of the circuit in which the ease is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable date, before not less than three of the circuit judges of said circuit, if there be three or more; and if there be not more than two circuit judges, then before them and such district judge as they may select. In the event the judges sit- ting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter provided. Section one of act February 11, 1903, known as the "Expe- diting Act.' In So. Pac. Ter. Co. v. Int. Com. Com., 166 Fed. 134, the sec- tion being under discussion, the court of appeals for the Fifth Circuit, Pardee, Judge, delivering the opinion, said: "This expediting act, fairly construed, permits the case to proceed (except it is to be given precedence and expedited) until final hearing when it is to be set down before three circuit judges. After final decree it may be be carried within 60 days by appeal to the Supreme Court by either party, and the only office left for the certificate is in the contingency that the judges shall be unable to agree on a final decree. "We can find nothing further in the acts requiring three cir- cuit judges to sit in any other phases of the case than the hearing on application for a preliminary injunction and on the final hearing. To apply it to all proceedings in the case is, in the nature of things, to defeat the very object of the act, and change it from an expediting act into a hindering and delaying act." § 585. Direct appeal to Supreme Court. — That every suit in equity pending or hereafter brought in any circuit court of the United States under any of said acts, wherein the United States is complainant, including cases submitted but not yet decided, an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from § 586.] Acts Regulating Commerce. 499 the entry thereof : Provided, That in any case where an appeal may have been taken from the final decree of a circuit court to the circuit court of appeals before this act takes effect, the case shall proceed to a final decree therein, and an appeal may be taken from such decree to the Supreme Court in the manner now provided by law. Public No. 82, approved February 11, 1903. Section two of the Expediting Act, act February 11, 1893. A direct appeal to the Supreme Court is authorized by this section from a final decree in the circuit court in a proceeding to compel the production of testimony. Int. Com. Com. v. Baird, 194 U. S. 25, 48 L. Ed. 860, 24 Sup. Ct. 563. Appeal taken from the circuit court to the Supreme Court from an order granting a preliminary injunction under the Sherman Anti- Trust Act. Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518. 25 Sup. Ct. 276; Circuit court decree. United States v. Swift & Co., 122 Fed. 529. § 586. Compulsory attendance of witnesses, and production of papers provided for. — Be it enacted by the Senate and House of Representatives of the United States of America in Congress as- sembled. That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Com- mission, or in obedience to the subpoena of the commission, v.'hether such subpoena be signed or issued by one or more com- missioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled ''An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment For perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, 500 Acts Regulating Commerce. [§ 587, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpa^na or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thou- sand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment. Act of February 11, 1893. § 587. Amendment to act making compulsory attendance of witnesses and production of papers. — Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That under the immunity provisions in the act entitled ''An act in relation to testimony before the Interstate Commerce Commission," and so forth, approved Feb- ruary eleventh, eighteen hundred and ninety-three, in section six of the act entitled "An act to establish the Department of Commerce and Labor," approved February fourteenth, nineteen hundred and three, and in the act entitled "An act to further regulate commerce with foreign nations and among the states," approved February nineteenth, nineteen hundred and three, and in the act entiled "An act making appropriations for the legislative, executive, and judicial expenses of the government for the fiscal year ending Jime thirtieth, nineteen hundred and four, and for other purposes," approved February twenty-fifth, nineteen hundred and three, immimity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath. Public No. 389, approved June 30, 1906. Act June 30, 1906. CHAPTER X. Act to prevent cruelty to animals while in interstate transit, known as the 28-hour law act June 29, 1906, Chapter 3594, 34 Stat. L. 607, U. S. Comp. St. Supp. 1907, p. 918, Fed. Stat. Ann. Sup. 1907, p. 25. Act March 4, 1907, Chapter 2907, 34 Stat. L. 1260, at. seq., requiring inspection of meat. § 590. Time prescribed for feeding and unloading animals in transit. 591. Feeding shall be at expense of owner, lien given for food. 592. Penalty. 593. Meat inspection act. § 590. Time prescribed for feeding and unloading animals in transit. — That no railroad, express company, car company, com- mon carrier other than by water, or the receiver, trustee, or lessee of any of them, whose road forms any part of a line of road over which cattle, sheep, swine, or other animals shall be conveyed from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, or the owners or masters of steam, sailing, or other vessels carry- ing or transporting cattle, sheep, swine, or other animals from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, shall con- fine the same in cars, boats or vessels of any description for a period longer than twenty-eight consecutive hours without un- loading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or by other acci- dental or unavoidable causes which can not be anticipated or avoided by the exercise of due diligence and foresight : Pro- vided, That upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading, or other railroad form, the time of confinement may be extended to thirty-six hours. In estimating such confinement, the time con- sumed in loading and unloading shall not be considered, but the time during which the animals have been confined without such rest or food or water on connecting roads shall be included, it 501 502 28-HouR Law [§590. being the intent of this act to prohibit their continuous confine- ment beyond the period of twenty-eight hours, except upon the contingencies hereinbefore stated: Provided, That it shall not be required that sheep be unloaded in the nighttime, but where the time expires in nighttime in case of sheep the same may con- tinue in transit to a suitable place for unloading, subject to tnb aforesaid limitation of thirty-six hours. Section one of the act. The act of March 3, 1873, 17 Stat. L. 584, R. S. U. S. §§ 4386 to 4390, inclusive, had the same purpose, though was somewhat less comprehensive than the present law. The old law, and for that matter the present law, did not apply to transportation wholly within a state. United States V. East Tenn., Va. & Ga. R. Co., 13 Fed. 642. The statute con- stitutional. United States v. Boston & A. R. Co., 15 Fed. 209. Reason for the law stated. United States v. L. & N. R. Co., 18 Fed. 480. Accident to a train due to negligence of the carrier not excuse, the present law is different in this respect, but the decision would probably apply to the law now. Newport N. & M. V. R. Co. V. United States, 61 Fed. 488, 9 C. C. A. 579. The same rule was applied United States v. So. Pac. Co., 157 Fed. 459 ; followed holding that proof need only be by a preponder- ance of the evidence, same style case, 162 Fed. 412. Opposite rule adopted. United States v. Louisville & N. R. Co., 157 Fed. 979. The rule that action civil affirmed. Montana C. Ry. Co. V. United States, 164 Fed. 400, C. C. A. . Under the old law a receiver was not liable, he is expressly named in the present law. United States v. Harris, 85 Fed. 533. Affirmed, same style case. 177 U. S. 305, 44 L. Ed. 780, 20 Sup. Ct. 609. A complaint for penalties must charge that the neglect was wil- ful, though need not negative exceptions. Action civil not crim- inal. United States v. Oregon Short L. R. Co., 160 Fed. 526. "Knowingly and wilfully" defined. Terminal railroad wdthin act. United States v. Sioux City Stock Yards Co., 162 Fed. 556. Affirmed without discussing questions involved, same style case, 167 Fed. 126. Act constitutional. United States V. Oregon R. & Nav. Co., 163 Fed. 640. Objections to allegation must be taken before verdict; action civil; wilful does not mean an evil intent but a violation purposely. New York C. & H. R. R. Co. V. United States, 165 Fed. 833, C. C. A. "Knowingly and wilfully" defined. United States v. § 591.] TO Prevent Cruelty to Animals. 503 Union Pacific R. Co., 169 Fed. 65, C. C. A. ; St. Louis & S. F. Ry. Co. V. United States, 169 Fed. 69, C. C. A. Wisconsin Cent. Ry. Co. v. United States, 169 Fed. 76, C. C. A. § 591. Feeding shall be at expense of owner, lien given for feed. — That animals so unloaded shall be properly fed and watered during such rest either by the owner or person having the custody thereof, or in case of his default in so doing, then by the railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee of any of them, or by the owners or masters of boats or vessels trans- porting the same, at the reasonable expense of the owner or per- son in custody thereof, and such railroad, express company, car company, common carrier other than by water, receiver, trustee, or lessee of any of them, owners or masters, shall in such case have a lien upon such animals for food, care and custody fur- nished, collectible at their destination in the same manner as the transportation charges are collected, and shall not be lia- ble for any detention of such animals, when such detention is of reasonable duration, to enable compliance with section one of this act ; but nothing in this section shall be construed to pre- vent the OA\'ner or shipper of animals from furnishing food therefor, if he so desires. Section two of the act. § 592. Penalty. — That any railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee of any of them, or the master or owTier of any steam, sailing, or other vessel who knowing and willfully fails to comply with the provisions of the two preceding sections shall for every such failure be liable for and forfeit and pay a pen- alty of not less than one hundred nor more than five hundred dollars : Provided, That when animals are carried in cars, boats, or other vessels in Avhich they can and do have proper food, water, space, and opportunity to rest the provisions in regard to their being unloaded shall not apply. Section three of the act. A penalty can not be assessed for each animal. United States V. Boston & A. R. Co., 15 Fed. 209. The penalty should be assessed on each train load. United States v. St. Louis & S. F. R. Co., 107 Fed. 870. Tbo shipper may recover his damages un- affected by the act. Southern Pac. Co. v. Arnett, 126 Fed. 75, 504 28-HouR Law [§593. 61 C. C. A. 131. AVliere there are several shipments in the same train, each shipment constitutes a separate case upon which for a violation of the act the penalty may be recovered. United States V. Bal. & 0. S. W. R. Co., 159 Fed. 33, 86 C. C. A. 223 ; United States v. New York C. & H. R. R. Co., 168 Fed. 699, C. C. A. . See to same effect, United States v. Atchison, T. & S. F. Ry. Co., 166 Fed. 160. Must show that carrier "know- ingly and wilfully" confined the animals longer than twenty- eight hours, the government need not negative exceptions, and confinement in hands of connecting carrier is counted. United States v. Oregon S. L. R. Co., 160 Fed. 526. Action for penalty a civil suit, § 590 supra. § 593. Meat inspection act. — The meat inspection act of March 4, 1907, chapter 2907, 34 Stat. L. 1260, contains provi- sions for the inspection of meats and animals that enter into in- terstate commerce. The provisions of this act are not generally germane to the subject of this book. One provision, however, does apply and it is here inserted. That on and after October first, nineteen hundred and six, no person, firm, or corporation shall transport or offer for trans- portation, and no carrier of interstate or foreign commerce shall transport or receive for transportation from one state or terri- tory or the District of Columbia to any other state or territory or the District of Columbia, or to any place under the jurisdic- tion of the United States, or to any foreign country, any car- casses or parts thereof, meat, or meat food products thereof which have not been inspected, examined, and marked as "In- spected and passed," in accordance with the terms of this act and with the rules and regulations prescribed by the Secretary of Agriculture : Provided, That all meat and meat food pro- ducts on hand on October first, nineteen hundred and six, at establishments where inspection has not been maintained, or which have been inspected under existing law, shall be examined and labeled under such rules and regulations as the Secretary of Agriculture shall prescribe, and then shall be allowed to be sold in interstate or foreign commerce. Eighth paragraph of above act. CHAPTER XI. TEUSTS AND OTHER COMBINATIONS IN RESTRAINT OP TRADE. Act July 2, 1890, Chapter 647, 26 Stat. L. 210, U. S. Compiled Stat. 1901, p. 3200, 7 Fed. Stat. Ann, 336. § 600. Contracts, combinations and conspiracies in restraint of interstate commerce illegal. 601. Monopolies and conspiracies and combinations to monopolize in- terstate trade illegal. 602. Prohibition applies to territories and between states and terri- tories. 603. Courts given jurisdiction to enjoin violation of act. 604. Practice with reference to parties and service of subpoena thereon. 605. Property owned under a contract violating this act being in course of interstate transportation may be seized and forfeited. 606. Measure of damages in favor of person injured. 607. Person includes corporation and association. 608. Act of August 28, 1894, so far as it relates to trusts and com- binations in restraint of trade. § 600. Contracts, combinations and conspiracies in restraint of interstate commerce illegal. — Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Section one of the act of July 2, ]890, known as the Sherman Anti-Trust Act. Agreement between carriers to fix and maintain rates con- demned. Freight Bureau of Cincinnati v. Cincinnati, N. 0. & T. P. Ry. Co., 6 I. C. C. R. ]95, 4 I. C. R. 592, 618. Commis- sion has no authority to execute anti-trust law. Sprigg v. Bal- timore & 0. R. Co., 8 I. C. C. R. 443. A noncoinpotitive rate de- prives it of its value as a standard. Mayor of AVichita v. A. T. 505 506 Trust and Other Combinations [§ 600. & S. F. Ry. Co., 9 I. C. C. R. 534, 552, Rates advanced by con- cert of action "must be presumed to be higher than rates which unrestrained competition would produce." Central Yellow Pine Asso. V. 111. Cent. R. Co., 10 I. C. C. R. 505, 540, 541, 542. Order of commission enforced. 111. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700; Tift v. Southern Ry. Co., 10 I. C. C. R. 548, 579. Order enforced. 138 Fed". 753 ; So. Ry. Co. V. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. Where "rates have been long in effect, and where the advance has been made by concerted action," the justification should be clear. Re Class and Commodity Rates from St. Louis to Texas Common Points. 11 I. C. C. R. 238, 268, 269, 270. Disappearance of competition given as one rea- son for holding an advance illegal. Cattle Raisers' Asso. v. ]Mo., Kan. & Tex. Ry. Co., 11 I. C. C. R. 296. A rate the result of an agreement is robbed of the presumption of reasonableness, which it might otherwise possess. China and Japan Trading Co. V. Ga. R. Co., 12 I. C. C. R. 236, 241. But if the rate is reasonable although illegally established, the commission will so hold. Id. 241. Warren Mfg. Co. v. So. Ry. Co., 12 I. C. C. R. 381. Evidence of a violation of the anti-trust act pertinent and such evidence will be given due weight though it is not conclu- sive. Enterprise Mfg. Co. v. Ga. R. Co., 12 I. C. C. R. 451, 456. Board of Bristol, Tenn., v. Virginia & S. W. Ry. Co., 15 I. C. C. R. 453, 454. Equity will not aid a plaintiff to effect a com- bination in restraint of trade. Am. Biscuit & Mfg. Co. v. Klotz, 44 Fed. 721, 1 Fed. Anti-Trust Dec. 2. A combination between coal dealers in different states to control prices prohibited. United States v. Jellico Moimtain Coal & Coke Co., 46 Fed. 432, 12 L. R. A. 753, 1 Fed. Anti-Trust Dec. 9. Control of railroads by stock o\Maership so as to prevent competition within the spirit, if not letter, of law. Clarke v. Cent. R. & Banking Co., 50 Fed. 338, 1 Fed. Anti-Trust Dec. 17. An owner of a patent- able invention, though a party to a combination to limit its man- ufacture, may maintain suit for its infringement. Strait v. National Harrow Co., 51 Fed. 819. 1 Fed. Anti-Trust Dec. 52. Act does not include common carriers ; an agreement to maintain reasonable rates not violative of either section one or section two. United States v. Trans-Missouri Freight Asso., 53 Fed. 440, 1 Fed. Anti-Trust Dec. 80. Affirmed. 58 Fed. 58, 7 C. C. A. 15, 24 L. R. A. 73, 1 Fed. Anti-Trust Dec. 186. Reversed. 166 U. § 600.] IN Restraint of Trade. 507 S. 290, 41 L. Ed. 1007, 17 Sup. Ct. 510, 1 Fed. Anti-Trust Dec. 648. Combinations of laborers illegal. United States v. Work- ingman's Amalg. Council, 54 Fed. 994, 26 L. E. A. 158, 1 Fed. Anti-Trust Dec. 110 ; AVaterhouse v. Comer, 55 Fed. 149, 1 Fed. Anti-Trust Dec. 119. All contracts and combinations in re- straint of interstate trade illegal, but buying up by one corpora- tion of all competing concerns not a violation of the statute. United States v. Knight, 60 Fed. 306, 1 Fed. Anti-Trust Dec. 250. Affirmed, same style case, 60 Fed. 934, 9 C. C. A. 297, 1 Fed. Anti-Trust Dec. 258, 24 L. R. A. 428, 156 U. S. 1, 11, 39 L. Ed. 325, 15 Sup. Ct. 249, 1 Fed. Anti-Trust Dec. 379, 387, holding that a monopoly in manufacture is not prohibited by the act. A combination to compel carriers engaged in interstate transportation to accede to certain demands illegal, whether such demands be reasonable or unreasonable. United States v. Elliott, 62 Fed. 801, 64 Fed. 27, 1 Fed. Anti-Trust Dec. 262, 311. Labor boycott violates act. Thomas v. Cincinnati, N. 0. & T. P. Ry. Co., 62 Fed. 803, 1 Fed. Anti-Trust Dec. 266. Violence and intimidation for the purpose of preventing the moving of trains engaged in interstate commerce violates the act. Re Grand Jury, 62 Fed. 840, 1 Fed. Anti-Trust Dec. 301. Mentioned but not decided. Arthur v. Oakes, 63 Fed. 310, 329, 11 C. C. A. 209, 25 L. R. A. 414, 1 Fed. Anti-Trust Dec. 310. The word "con- spiracy" broad enough to cover conspiracies of labor in restraint of trade or commerce. United States v. Debs, 64 Fed. 724, 1 Fed. Anti-Trust Dec. 322. Writ of habeas corpus denied. Re Debs, 158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900, 1 Fed. Anti-Trust Dec. 565. A corporation organized to secure assign- ments of all patents relating to a particular apparatus and to fix and regulate the prices thereof is illegal. National Harrow Co. V. Quick, 67 Fed. 130, 1 Fed. Anti-Trust Dec. 443, 608. Af- firmed, same style case. 74 Fed. 236, 20 C. C. A. 410. National Harrow Co. v. Hench, 76 Fed. 667, 1 Fed. Anti-Trust Dec. 610. Affirmed, same style case, 83 Fed. 36, 27 C. C. A. 349, 39 L. R. A. 299, 1 Fed. Anti-Trust Dec. 742. See also same style case, 84 Fed. 226, 1 Fed. Anti-Trust Dec. 746. '*A conspiracy is a com- bination of two or more persons, by concerted action, to accom- plish a criminal or unlawful purpose, or some purpose not in itself unlawful or criminal, bj^ criminal or unlawful means, the common design being the essence of the charge." This case which was a charge to a jury defines trade and commerce and 508 Trust and Other Combinations [§ 600. holds ''that Pullman cars in use upon the roads are instrumen- talities of commerce." United States v. Cassidy, 67 Fed. 698, 702, 1 Fed. Anti-Trust Dec. 449, 455, citing Pettibone v. United States, 148 U. S. 197, 203, 37 L. Ed. 419, 13 Sup. Ct. 542. Not applicable to a state which by its laws assumes a monopoly of the liquor traffic. Lowenstein v. Evans, 69 Fed. 908, 1 Fed. Anti-Trust Dec. 598. An interstate carrier may legally make an exclusive arrangement with another carrier for through trans- portation. Prescott & A. C. E. Co. v. Atchison, T. & S. F. R. Co., 73 Fed. 438, 1 Fed. Anti-Trust Dec. 604. One having re- ceived the services of a tug can not escape payment therefor, although the tug owners are members of an association illegal under the act. The Charles E. Wiswall, 74 Fed. 802, 1 Fed. Anti-Trust Dec. 608. Affirmed, same style case, 86 Fed. 671, 30 C. C. A. 339, 1 Fed. Anti-Trust Dec. 850. The statute covers, and was intended to cover, common carriers by railroad, and pro- hibits all agreements and combinations in restraint of trade or commerce, regardless of the question whether or not such agree- ments were reasonable. United States v. Trans-J\Iissouri Freight Asso., 166 U. S. 290, 327, 335, 41 L. Ed. 1007, 17 Sup. Ct. 540, 1 Fed. Anti-Trust Dec. 648. All restraints prohibited, whether reasonable or unreasonable, and whether or not the law is vio- lated by the practical workings and results of the association al- leged to be an illegal combination. United States v. Hopkins, 82 Fed. 529, 1 Fed. Anti-Trust Dec. 725, 748. Reversed because the business was not interstate commerce. Hopkins v. United States, 171 U. S. 578, 43 L. Ed. 290, 19 Sup. Ct. 40, 1 Fed. Anti- Trust Dec. 941. Followed, Anderson v. United States, 171 U. S. 604, 43 L. Ed. 300, 19 Sup. Ct. 50, 1 Fed. Anti-Trust Dec. 967. Any restraint illegal. United States v. Coal Dealers' Asso., 85 Fed. 252, 1 Fed. Anti-Trust Dec. 749. A contract op- erating as a restraint in soliciting orders for and selling goods in one state to be delivered in another is within the act. Thb doctrine of the common law as well as the effect of the statute discussed. United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. C. A. 141, 46 L. R. A. 122, 1 Fed. Anti-Trust Dec. 772. Affirmed. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. Ed. 136, 20 Sup. Ct. 96, 1 Fed. Anti-Trust Dec. 1009, but decree modified so as not to affect commerce wholly within a state. An independent dealer who, without knowledge of the intention of the buyer, sells all his product § 600.] • IN Restraint of Trade. 509 to one who makes the purchase as part of a general scheme of monopoly does not violate the law. Carter-Crume Co. v. Peur- rung, 86 Fed. 439, 30 C. C. A. 174, 1 Fed. Anti-Trust Dec. 844. Allegations sufficient to bring case within the law. Lowry v. Tile, Mantel & Grate Asso., 98 Fed. 817, 1 Fed. Anti-Trust Dec. 995. Affirmed. Montague v. Lowry, 115 Fed. 27, 52 C. C. A. 621, 2 Fed. Anti-Trust Dec. 112, 193 U. S. 38, 48 L. Ed. 608, 24 Sup. Ct. 307, 2 Fed. Anti-Trust Dec. 327. A note payable to a corporation for goods can not be avoided because such corpora- tion is a trust organized and operating in violation of the act. Union Sewer-Pipe Co. v. Connelly, 99 Fed. 354, 2 Fed. Anti- Trust Dec. 1. Affirmed on the point annotated and also holding that the Illinois Anti-Trust Act was void because it exempted agricultural products and live stock from its provisions. Con- nelly V. Union Sewer-Pipe Co., 184 U. S. 540, 46 L. Ed. 679, 22 Sup. Ct. 431, 2 Fed. Anti-Trust Dec. 118. An infringer of a patent can not defend on the ground that the owner thereof is organized in violation of the act and procured the patent in pur- suance of such illegal organization. National Folding Box & Paper Co. v. Robertson, 99 Fed. 985, 2 Fed. Anti-Trust Dec. 4; Otis Elevator Co. v. Geiger, 307 Fed. 131, 2 Fed. Anti-Trust Dec. 66; General Elec. Co. v. Wise, 119 Fed. 922, 2 Fed. Anti- Trust Dec. 205; United States Consolidated Seeded Raisin Co. V. Griffin, 126 Fed. 364, 61 C. C. A. 334, 2 Fed. Anti-Trust Dec. 288. If trade is restrained by a contract or combination, it is an illegal act, even though the public may be benefitted thereby. United States v. Chesapeake & 0. Fuel Co., 105 Fed. 93, 2 Fed. Anti-Trust Dec. 34. Affirmed. Chesapeake & 0. Fuel Co. v. United States, 115 Fed. 610, 53 C. C. A. 256, 2 Fed. Anti-Trusi Dec. 151. A combination of manufacturers and dealers, each member of which paid certain entrance fees and dues and the constitution of which prohibited its members from buying from other than members, illegal. Lowry v. Tile, Mantel & Grate Asso., 106 Fed. 38, 2 Fed. Anti-Trust Dec. 53. Affirmed. Mon- tague V. Lowry, 115 Fed. 27, 52 C. C. A. 621, 2 Fed. Anti-Trust Dec. 112, 193 U. S. 38, 48 L. Ed. 608, 24 Sup. Ct. 307, 2 Fed. Anti-Trust Dec. 327. A pooling combination of carriers is il- legal, and a carrier party thereto can not maintain a suit for injunction against a ticket broker who sells non-transferable tick- ets issued as part of the pooling agreement. Delaware, L. & W. R. Co. V. Frank, 110 Fed. 689, 2 Fed. Anti-Trust Dec. 81. Im- 510 Trust and Other C^ombinations [§600. niimity Act of Feb. 11, 1893, docs not apply to this act. Foot V. Buchanan, 113 Fed. 156, 2 Fed. Anti-Trust Dec. 103. A pri- vate individual may successfully defend an action brought against him on a contract in violation of this act. A patentee may legally put restraint on a licensee of the patent, although such restraints are violative of commerce in the patented article. Bement v. National Harrow Co., 186 U. S. 70, 46 L. Ed. 1058, 22 Sup. Ct. 747, 2 Fed. Anti-Trust Dec. 169. But the contract extending beyond the protection of the patent is illegal. In- diana Mfg. Co. V. J. I. Case Threshing Mch. Co., 148 Fed. 21. Reversed, same style case, 154 Fed. 365, 83 C. C. A. 343. A paving contract limiting the material used to that manufactured by only one company is not illegal. Field v. Barber Asphalt Paving Co., 117 Fed. 925, 2 Fed. Anti-Trust Dec. 192. Affirmed, same style case, 194 U. S. 618, 48 L. Ed. 1142, 24 Sup. Ct. 784, 2 Fed. Anti-Trust Dec. 555. The statute includes all combina- tions which directly and substantially restrict interstate com- merce, and applies to interstate carriers. The act is violated by a contract by which a majority of the stock of each of two com- peting roads is transferred to a corporation organized to vote such stock, the voting corporation issuing its stock to the holders of the stock of the two railroad corporations. United States v. Northern Securities Co., 120 Fed. 721, 2 Fed. Anti-Trust Dec. 215. Affirmed, reviewing and discussing former anti-trust de- cisions of the court. Northern Securities Co. v. United States, 193 U. S. 197, 48 L. Ed. 679, 24 Sup. Ct. 436, 2 Fed. Anti-Trusi Dec. 338. A board of trade may sell its quotations to a telegraph company with the limitation that they shall not be furnished to a bucket shop. Board of Trade of Chicago v. Christie Grain & Stock Co., 121 Fed. 608, 2 Fed. Anti-Trust Dec. 233. Reversed on other grounds. Christie Grain & Stock Co. v. Board of Trade of Chicago, 125 Fed. 161, 61 C. C. A. 11. Circuit court of ap- peals reversed and circuit court affirmed same style case. Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U. S. 236, 49 L. Ed. 1031, 25 Sup. Ct. 637, 2 Fed. Anti-Trust Dec. 717. A combination to restrain trade illegal, although prices resulting therefrom reasonable. United States v. Swift & Co., 122 Fed. 529, 2 Fed. Anti-Trust Dec. 237. Affirmed. Swift & Co. V. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276, 2 Fed. Anti-Trust Dec. 641, holding that although the separate elements of a combination may be legal, if the common § 600.] IN Eestraint op Trade. 511 intent is to monopolize trade, it is illegal. The IMinnesota Anti- Trust Act not violated under the facts pleaded. IMinnesota V. Northern Securities Co., 123 Fed. 692, 2 Fed. Anti-Trust Dee. 246. Reversed because the federal court had no jurisdiction and remanded to the state court. IMinnesota v. Northern Securities Co., 194 U..S. 48, 48 L. Ed. 870, 24 Sup. Ct. 598, 2 Fed. Anti- Trust Dec. 533. A combination to control prices in a local market and to refuse to sell to consumers who buy from non- members, some of whom live out- of the state, is not within act. Ellis V. Inman, Poulsen & Co., 124 Fed. 956, 2 Fed. Anti-Trust Dec. 268. Reversed, holding that the federal law applied. Same style ease, 131 Fed. 182, 65 C. C. A. 488, 2 Fed. Anti-Trust Dec. 577. Sale of good will limiting the right of the vendor to go into business within fifty miles of the place of sale valid, and being within a state not violative of the federal act. Robinson v. Suburban Brick Co., 127 Fed. 804, 62 C. C. A. 484, 2 Fed. Anti- Trust Dec. 312. Booth & Co. v. Davis, 127 Fed. 875, 2 Fed. Anti-Trust Dec. 318. Affirmed. Davis v. Booth, 131 Fed. 31, 65 C. C. A. 269, 2 Fed. Anti-Trust Dec. 566. Writ of certiorari denied by Supreme Court. 195 U. S. 636. See also Camors- McConnell Co. v. McConnell, 140 Fed. 412, 2 Fed. Anti-Trust Dec. 817. Affirmed. IMcConnell v. Camors-IMcConnell Co., 140 Fed. 987, 72 C. C. A. 681, 2 Fed. Anti-Trust Dec. 825. Rehear- ing denied, same case, 152 Fed. 321, 81 C. C. A. 429; American Brake Beam Co. v. Pimgs, 141 Fed. 923, 73 C. C. A. 157, 2 Fed. Anti-Trust Dec. 826. Combination of carriers by which by concerted action rates are advanced violates act. Tift v. Southern Ry. Co., 138 Fed. Anti-Trust Dec. 753, 2 Fed. Anti-Trust 733. Affirmed. So. Ry. Co. v. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709. After a copyrighted book has been sold, although with a statement printed therein that the purchaser could not sell except at a stated price, the purchaser can sell at any price he sees fit. Book trust declared illegal. Bobbs- IMerrill Co. v. Straus, 139 Fed. 155, 2 Fed. Anti-Trust Dec. 755. Affirmed, same style case, 147 Fed. 15, 77 C. C. A. 607, 15 L. R. A. 766, 210 U. S. 339, 52 L. Ed. 1086, 28 Sup. Ct. 722. Tno immunity act, act Feb. 19, 1903, applies to the anti-trust act. Re Hale, 139 Fed. 496, 2 Fed. Anti-Trust Dec. 804. Affirmed. Hale V. Henkel, 201 U. S. 43, 50 L. Ed. 652, 26 Su]). Ct. 370, 2 Fed. Anti-Trust Dee. 874; McAlister v. ITenkcl, 201 U. S. 90, 50 L. Ed. 671, 26 Sup. Ct. 385, 2 Fed. Anti-Trust Dec. 919. 512 Trust and Other Combinations [§ 600. Followed, Nelson v. United States, 201 U. S. 92, 50 L. Ed. 673, 26 Sup. Ct. 358, 2 Fed. Anti-Trust Dec. 920. A patentee may grant licenses to sell the patented article only on condition of selling at prices fixed by the patentee, but under the facts of this case license contract void as violative of anti-trust act. Rubber Tire Wheel Co. v. Milwaukee Rubber Co., 142 Fed. 531, 2 Fed. Anti-Trust Dec. 855. Reversed, same style case, 154 Fed. 358, 83 C. C. A. 336. Good will contract valid. A purchaser of a river boat can not refuse to pay therefor because in the contract of purchase he agreed to maintain existing rates. Cincinnati, P. B. S. & P. P. Co. V. Bay. 200 U. S. 179, 50 L. Ed. 428, 26 Sup. Ct. 208, 2 Fed. Anti-Trust Dec. 867. An order directing a witness to answer questions relating to violations of the act is interlocutory and not appealable. Alexander v. United States, 201 U. S. 117, 50 L. Ed. 686, 26 Sup. Ct. 356. 2 Fed. Anti- Trust Dec. 945. Immunity does not apply to corporation whose officers may testify, it does apply to individuals who testify at hearings before the Commissioner of Corporations. United States V. Armour, 142 Fed. 808, 2 Fed. Anti-Trust Dec. 951. Act does not make void a collateral contract for the manufacture and sale of goods. Hadley, Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242, 74 C. C. A. 462, 2 Fed. Anti-Trust Dec. 994. Followed, Chicago Wall Paper Mills v. General Paper Co., 147 Fed. 491, 78 C. C. A. 607, 2 Fed. Anti-Trust Dec. 1027. It is not unlawful for a manufacturer of a proprietary medicine to contract with the dealers who purchase such medicine from him, that they shall sell at a fixed price. Hartman v. John D. Park & Sons, 145 Fed. 358, 2 Fed. Anti-Trust Dec. 999. Re- versed, holding contract unenforceable. John D. Park & Sons V. Hartman, 153 Fed. 24, 82 C. C. A. 158, 12 L. R. A. (N. S.) 1135. Circuit Court followed Dr. Miles jMeclicine Co. v. Ja^-nes Drug Co., 149 Fed. 838. Circuit court of appeals followed. Dr. :\Iiles JMedical Co. v. John D. Park & Sons Co., 164 Fed. 803, C. C. A. . Writ of error granted by Supreme Court. A carrier may enter into an exclusive contract with one to build up, develop and conduct a particular traffic business along its line. Delaware. L. & W. R. Co. v. Kutter, 147 Fed. 51, 77 0. C. A. 315. 2 Fed. Anti-Trust Dee. 1021. Petition for writ of certiorari denied, 203 U. S. 588, 51 L. Ed. 330. An agreement between publishers of copyrighted books, who control ninety per cent, of the book business, not to sell to any one who cuts prices, § 600.] IN Restraint op Trade. 513 or who sells to one who cuts prices, is illegal. Mines v. Scribner, 147 Fed. 927, 2 Fed. Anti-Trust Dec. 1035. See case of Bobbs- Merrill Co. v. Straus, supra. The attempt of a labor union to compel, by a boycott, a manufacturer to unionize his factory not within act. Loewe v. Lawlor, 148 Fed. 924. See same case, 130 Fed. 633, 2 Fed. Anti-Trust Dec. 563, 142 Fed. 216, 2 Fed. Anti-Trust Dec. 854. Reversed, holding that such acts con- stituted a violation of the act. Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 488, 28 Sup. Ct. 301. Purchase money of goods can not be recovered when the purchase was made as part of a com- bination in restraint of trade. Continental "Wall Paper Co. v. Lewis Voight & Sons Co., 148 Fed. 939, 78 C. C. A. 567. Affirm- ed, same style case, 212 U. S. 227, 53 L. Ed. , 29 Sup. Ct. 280. Act not affect a contract by which foreign ship owners endeavor to prevent dealing with their competitors. Thomson v. Union Castle Mail Steamship Co., 149 Fed. 933. Reversed, holding that when the combination was put in effect in the United States it violated its laws. Thomson v. Union Castle Mail Steamship Co., 166 Fed. 251, C. C. A. . Trusts defined, quoting Coke's definition. Re Charge to Grand Jury, 151 Fed. 834. Though a rate is established in violation of Anti-Trust Act, application must first be made to the Interstate Commerce Commission to declare rate illegal. American Union Coal Co. v. Penn. R. Co., 159 Fed. 278 ; Meeker v. Lehigh V. R. Co., 162 Fed. 354. Mere agreement not effective does not violate law. The facts in the case show a violation. United States Tobacco Co. v. American Tobacco Co., 163 Fed. 701 ; Weisert Bros. Tobacco Co. v. Amer- ican Tobacco Co., Larus & Bro. Co. v. same, 163 Fed. 712. Tht American Tobacco Co. declared a trust. United States v. Amer- ican Tobacco Co., 164 Fed. 700; People's Tobacco Co. v. Ameri- can Tobacco Co., HO Fed. 396, C. C. A. .A patentee may legally limit the licensee in the manner of selling. Goshen Rub- ber Works V. Single Tube A. & B. Tire Co., 166 Fed. 431, C. C. A. , but not so when the purpose of the contract is to en- hance prices and not as an incident to the sale of the patent right. Blount :Mfg. Co. v. Yale & Towne Mfg. Co., 166 Fed. 555. Facts not constituting a violation. Bigelow v. Calumet & ITecla ]\lining Co., 167 Fed. 704. Affirmed, same style case, 167 Fed. 721, C. C. A. . A lease of a plant executed in pursuance of a plan to mf)Mopolize the cotton compressing busi- ness illegal. Shawnee Compress Co. v, Anderson, 209 U. S. 423, 514 Trust and Other Combinations [§ 601. 52 L. Ed. 865, 28 Sup. Ct. 572. No judgment will be rendered for the purchase price of property when "such a judgment would, in effect, aid the execution of agreements which consti- tuted" an illegal combination. Four judges dissent. Conti- nental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 29 Sup. Ct. 280. § 601. Monopolies and conspiracies and combinations to mon- opolize interstate trade illegal. — Every person who shall monop- olize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punish- ments, in the discretion of the court. Section two of the act July 2, 1890, kno\m as the Sherman Anti-Trust Law. What an indictment for violation should state. United States V. Greenhut, 50 Fed. 469, 1 Fed. Anti-Trust Dec. 30. Re Corn- ing, 51 Fed. 205, 1 Fed. Anti-Trust Dec. 33; Re Terrell, 51 Fed. 213, 1 Fed. Anti-Trust Dec. 46; United States v. Patter- son, 59 Fed. 280, 1 Fed. Anti-Trust Dec. 244. Does not prevent a state corporation from acquiring title, control and disposition of property in the several states. Re Greene, 52 Fed. 104, 1 Fed. Anti-Trust Dec. 54. An agreement among a number of lumber dealers to raise the price fifty cents per thousand, not illegal unless it includes the entire traffic. 52 Fed. 646, 1 Fed. Anti-Trust Dec. 77. "Monopolize" is the basis of the statute and merely injuring or restraining trade not prohibited. United States V. Patterson, 55 Fed. 605, 640, 641, 1 Fed. Anti-Trust Dec. 133, 176, 177. A purchaser of liquors from an illegal com- bination can not keep the goods and recover the price paid, even though it was excessive. Dennehy v. IMcNulta, 86 Fed. 825, 41 L. R. A. 609, 30 C. C. A. 422, 1 Fed. Anti-Trust Dec. 855. A contract with an association having a monopoly of the commerce in a particular commodity by which it agrees to pay a dividend to a company on condition that such company would close its factory for a year is contrary to public policy and unlawful. Cravens v. Carter-Crume Co.. 92 Fed. 479, 34 C. C. A. 479, 1 Fed. Anti-Trust 983. IMere attempts to monopolize trade not punishable, combination the main purpose of which is to foster § 602.] IN Restraint of Trade. 515 trade and which only indirectly or incidentally restricts competi- tion not illegal. Whitwell v. Continental Tobacco Co., 125 Fed. 454, 60 C. C. A. 290, 64 L. R. A. 689, 2 Fed. Anti-Trust Dec. 271; Phillips V. lola Portland Cement Co., 125 Fed. 593, 61 C. C. A. 19, 2 Fed. Anti-Trust Dec. 284. Petition for writ of certiorari denied. 192 U. S. 606, 48 L. Ed. 585, 24 Sup. Ct. 850. A demand for a "closed shop" illegal. Barnes & Co. v. Berry, 156 Fed. 72. ''Monopoly" defined. Burrows v. Interur- ban Metropolitan Co., 156 Fed, 389. An agreement, however, between mine operators not to employ members of a certain union held not to be illegal. Goldfield Consolidated jMines Co. V. Goldfield Mines Union, 159 Fed. 500. § 602. Prohibition applies to territories and between states and territories. — Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any territory of the United States or of the District of Colum- bia, or in restraint of trade or commerce between any such ter- ritory and another, or between any such territory or territories and any state or states or the District of Columbia, or with for- eign nations, or between the District of Columbia and any state or states or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misde- meanor, and, on conviction thereof, shall be pimished by fine not exceeding five thousand dollars, or by imprisonment not exceed- ing one year, or by both said punishments, in the discretion of the court. Section three of the act July 2, 1890, known as the Sherman Anti-Trust Act. Prosecution begun in a territorial court abates upon the ad- mission of the territory as a state. Moore v. United States, 85 Fed. 465, 29 C. C. A. 269, 1 Fed. Anti-Trust Dec. 815. § 603. Courts given jurisdiction to enjoin violation of act. — The several circuit courts of the United States are hereby in- vested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the di- rection of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceed- ings may be by way of petition setting forth the case and pray- ing that such violation shall be enjoined or otherwise prohibited. 516 Trust and Other Combinations [§ 603. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. Section four of the act July 2, 1890, known as the Sherman Anti-Trust Act. Preliininary injunction not granted when bill denied. United States V. Jellico IMountain Coke & Coal Co., 43 Fed. 898, 1 Fed. Anti-Trust Dec. 1. Right to injunction exists only in favor of the government, but to prevent a multiplicity of suits an indi- vidual may sue for and obtain an injunction. Blindell v. Hagan, 54 Fed. 40, 1 Fed. Anti-Trust Dec. 106. Affirmed. Hagan v. Blindell. 56 Fed. 696, 6 C. C. A. 86. 1 Fed. Anti-Trust Dec. 182. Injunction may be granted against a combination of laborers. United States v. AVorkingman 's Amalg. Council, 54 Fed. 994, 26 L. E. A. 158, 1 Fed. Anti-Trust Dec. 110. Affirmed. Work- ingman's Amalg. Council v. United States, 57 Fed. 85, 6 C. C. A. 258, 1 Fed. Anti-Trust Dec. 184. Injunction order binding on one not named in the bill or served with subpoena if served with injunction order. United States v. Agler, 62 Fed. 824, 1 Fed. Anti-Trust Dec. 294. May sue in any district where de- fendant found. Dueber Watch-Case Mfg. Co. v. Howard Watch & Clock Co., 66 Fed. 637, 14 C. C. A. 14, 1 Fed. Anti-Trust Dec. 421. Section not void. United States v. Elliott, 64 Fed. 27, 1 Fed. Anti-Trust Dec. 311. The combination described not il- legal and federal courts can not enjoin an alleged violation of this act or the act to regulate commerce. United States v. Joint Traffic Asso., 76 Fed. 895, 1 Fed. Anti-Trust Dec. 615. Affirm- ed. 89 Fed. 1020, 32 C. C. A. 491, 45 U. S. App. 726, 1 Fed. Anti-Trust Dec. 869. Reversed on both points following the Trans-Missouri Freight Asso. Case supra. Same style case, 171 U. S. 505, 43 L. Ed. 259, 19 Sup. Ct. 25, 1 Fed. Anti-Trust Dec. 869. Applies only to suits by the government. Greer, Mills & Co. V. Stoller, 77 Fed. 1, 1 Fed. Anti-Trust Dec. 620. Suits by the United States rest only on the authority of the act. United States V. Addyston Pipe & Steel Co., 78 Fed. 712, 1 Fed. Anti- Trust Dec. 631. Reversed, holding a bill for injunction M^ould lie in favor of either the government or a private individual. 85 Fed. 271, 46 L. R. A. 122, 1 Fed. Anti-Trust Dec. 772. Affirmed. § 604.] IN Restraint of Trade. 517 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. Ed. 136, 20 Sup. Ct. 96, 1 Fed. Anti-Trust Dec. 1009. Re- straining order may issue without notice. United States v. Coal Dealers' Asso., 85 Fed. 252, 1 Fed. Anti-Trust Dec. 749. Prin- ciples upon which injunction should be granted stated in a case growing out of United States v. Northern Securities Co. Case. Harriman v. Northern Securities Co., 132 Fed. 464, 2 Fed. Anti- Trust Dee. 587. Reversed. Northern Securities Co. v. Harri- man, 134 Fed. 331, 67 C. C. A. 245, 2 Fed. Anti-Trust Dec. 618. Circuit court of appeals affirmed, holding that property de- livered under an executed contract of sale can not be recovered by one in pari delicto. Harriman v. Northern Securities Co., 197 U. S. 244, 49 L. Ed. 739, 25 Sup. Ct. 493, 2 Fed. Anti-Trust Dec. 669. Prior to Elkins Act, Feb. 19, 1903, a circuit court had no jurisdiction to enjoin the granting of rebates, although the giving of the rebate was alleged to be in violation of Anti-Trust Act. United States v. Atchison, T. & S. F. Ry. Co., 142 Fed. 176, 2 Fed. Anti-Trust Dec. 831. Private parties may obtain an injunction against a violation from which they suffer special in- jury. Bigelow v. Calumet & Hecla IMining Co., 155 Fed. 869, 167 Fed. 704. Affirmed, not discussing this point, 167 Fed. 721, C. C. A. . Same rule under a state law. Continental Securities Co. v. Interborough R. T. Co., 165 Fed. 945. § 604. Practice with reference to parties and service of sub- poena thereon. — Whenever it shall appear to the court before which any proceeding under section four of this act may be pending that the ends of justice require that other parties should be brought before the court, the court may cause them to be sum- moned, whether they reside in the district in which the court is held or not ; and subpoenas to that end may be served in any dis- trict by the marshal thereof. Section five of the act July 2, 1890, Imown as the Sherman Anti-Trust Act. Injunction order may be enforced against defendants, within the scope of the order, though not named in the bill, such de- fendants being parties to the conspiracy. United States v. Elliott, 64 Fed. 27, 1 Fed. Anti-Trust Dec. 311. Can not bring in non-residents of the district at suit by others than the gov- ernment. Greer, Mills & Co. v. Stoller, 77 Fed. 1, 1 Fed. Anti- Trust Dec. 620. Non-rosidents of the state may be brought in as defendants. United States v. Standard Oil Co. of New Jer- 518 Trust and Otpier Combinations [§ 605. sey, 152 Fed. 290; United States v. Virginia-Carolina Chemical Co., 163 Fed. 66; Northern Pac. R. Co. v. Pacific C. L. Mfg. Asso., 165 Fed. 1, 9, C. C. A. § 605. Property owned under a contract violating this act being in course of interstate transportation may be seized and for- feited. — Any property OMTied under any contract or by any com- bination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one state to another, or to a for- eign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law. Section six of act July 2, 1890, known as the Sherman Anti- Trust Act. No seizure can be had of goods at the suit of the United States except of property imported into the United States contrary to act. United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. C. A. 141, 46 L. R. A. 122, 1 Fed. Anti-Trust Dec. 772. Affirmed, without discussion of the question. Addyston Pipe & Steel Co. V. United States, 375 U. S. 211, 44 L. Ed. 136, 20 Sup. Ct. 96, 1 Fed. Anti-Trust Dec. 1009. § 606. Measure of damages in favor of persons injured. — Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any cir- cuit court of the United States in the district in which the de- fendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sus- tained, and the costs of suit, including a reasonable attorney's fee. Section seven of act July 2, 1890, known as the Sherman Anti- Trust Act. A person who has sold his business to an illegal combination can not recover under this act. In suits for damages complaint must allege that the matters out of which the suit grows consti- tute interstate commerce. Bishop v. Am. Preservers' Co., 51 Fed. 272, 1 Fed. Anti-Trust Dec. 49. IMust not only allege that the business damaged was interstate commerce but that the en- tire market was controlled. Dueber AVatch Case IMfg. Co. v. Howard Watch & Clock Co., 55 Fed. 851, 1 Fed. Anti-Trust Dec. § 606.] IN Restraint of Trade. 519 178. Affirmed, same style case, 66 Fed. 637, 14 C. C. A. 14, 1 Fed. Anti-Trust Dec. 421. The private shipper can not obtain a mandatory writ to compel the carrier to grant a right, though a circuit court, as a court of equity, can afford preventative re- lief in addition to damages. Gulf C. & S. F. Ey. Co. v. Miami S. S. Co., 86 Fed. 407, 421, 30 C. C. A. 142, 1 Fed. Anti-Trust Dec. 823, 842, 843. Remedy for damages exclusive and a private person can not maintain equitable proceedings to enforce the law. So. Ind. Express Co. v. United States Express Co., 88 Fed. 659, 1 Fed. Anti-Trust Dec. 862. Affirmed. 92 Fed. 1022, 35 C. C. A. 172, 1 Fed. Anti-Trust Dec. 992; Block v. Standard Distilling and Distributing Co., 95 Fed. 978, 1 Fed. Anti-Trust Dec. 993. Limitation of time in which to bring suit is governed by the law of the state in which suit is brought. Atlanta v. Chattanooga Foundry & Pipe Co., 101 Fed. 900, 2 Fed. Anti- Trust Dec. 11. Reversed, same style case, 127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 721, 2 Fed. Anti-Trust Dec. 299. Affirmed. Chattanooga Foundry & Pipe Co. v. Atlanta, 203 U. S. 390, 51 L. Ed. 241, 27 Sup. Ct. 65. To recover must not only show illegal combination but that plaintiff has suffered damages, that a combination of dealers sent out circulars denouncing a dealer outside the combination who sold in other states whereby his business is injured authorized a recovery. Gibbs v. McNeely, 102 Fed. 594, 2 Fed. Anti-Trust Dec. 25. No recovery for sales in the state. Same case, 107 Fed. 210, 2 Fed. Anti-Trust Dec. 71. Reversed, same case, 118 Fed. 120, 55 C. C. A. 70, 60 L. R. A. 152, 2 Fed. Anti-Trust Dec. 194, holding that though an agreement does not refer to interstate trade, it is within the act if its purpose and effect is to restrain such trade. A party to an illegal combination can not recover damages against the combination for acts growing out of the contract creating the combination. Bishop v. American Preservers' Co., 105 Fed. 845, 1 Fed. Anti-Trust Dec. 51. Damages recoverable and attorney's fees in discretion of trial court. Lowry v. Tile Mantel & Grate Asso., 106 Fed. 38, 2 Fed. Anti-Trust Dec. 53. Affirmed. Mon- tague v. Lowry, 115 Fed. 27, 52 C. C. A. 621, 2 Fed. Anti-Trust Dec. ]]2, ]93 U. S. 38, 48 L. Ed. 608, 24 Sup. Ct. 307, 2 Fed. Anti-Trust Dec. 327. A minority stoclvholder, alleging the coi-- poration has transferred its property to an illegal combination, can not obtain an injunction against the transfer- iind damages in the same suit. Mctcalf v. Aniericnn School I^'uruilure Co., 520 Trust and Other Combinations [§ 607. 108 Fed. 909, 2 Fed. Anti-Trust Dec. 75. Affirmed. 113 Fed. 1020, 51 C. C. A. 599, 2 Fed. Anti-Trust Dee. 111. Bill dis- missed. 122 Fed. 115, 2 Fed. Anti-Trust Dec. 234. Only actual damages can be recovered. Rule as to loss of profits stated. Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244, 2 Fed. Anti-Trust Dec. 94. Damages can not be recovered because a company refuses to sell its goods, imless the purchaser refuses to deal with independent companies, the defendant owing no duty to sell its products to plaintiff. Whitwell v. Continental Tob. Co., 125 Fed. 454, 60 C. C. A. 290, 64 L. R. A. 689, 2 Fed. Anti-Trust Dec. 271. Petition for damages must definitely de- scribe the combination and conspiracy. Rice v. Standard Oil Co., 134 Fed. 464, 2 Fed. Anti-Trust Dec. 633. Rule as to measure of damages and burden of proof. Loder v. Jayne, 142 Fed. 1010, 2 Fed. Anti-Trust Dec. 976. Reversed. Jayne v. Loder, 149 Fed. 21, 78 C. C. A. 653, 7 L. R. A. (N. S.) 984. In a suit for damages under this section, the allegations should be specific. Cilley v. United Shoe Mach. Co., 152 Fed. 726. One who is harmed in business or property may recover. "Wheeler- Stenzel Co. v. National Window Glass Jobbers' Asso., 152 Fed. 864, 81 C. C. A. 658. A purchase of a competing refining com- pany in order to monopolize the refining of sugar not illegal. Penn. Sugar Refining Co. v. American Sugar Refining Co., 160 Fed. 144. Reversed, same style case, 166 Fed. 254, C. C. A. . No right of action when merely prevented from embarking on a new business. American Banana Co. v. United Fruit Co., 160 Fed. 184. Affirmed, same style case, 166 Fed. 261, C. C. A. , 213 U. S. 347, 53 L. Ed. , 29 Sup. Ct. . Allega- tion held sufficient. Monarch Tob. Works v. American Tob. Co., 165 Fed. 774. Limitation law of the state in which suit is brought applies. Chattanooga Foundry & Pipe Works v. At- lanta, 203 U. S. 390, 51 L. Ed. 241, 27 Sup. Ct. 65. § 607. Person includes corporation and association. — That the word "person," or "persons," wherever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the territories, the laws of any state, or the laws of any foreign country. Section eight of the act of July 2, 1890, known as the Sherman Anti-Trust Act. § 608.] IN Restraint of Trade. 521 Corporations may be indicted. United States v. MacAndrews & Forbes Co., 149 Fed. 823, 836. § 608. Act of August 28. 1894, so far as it relates to trusts and combinations in restraint of trade. — Sec. 73. That every com- bination, conspiracy, trust, agreement, or contract, is hereby declared to be contrary to public policy, illegal, and void, when the same is made by or between two or more persons or corpora- tions either of whom is engaged in importing any article from any foreign country into the United States, and when such com- bination, conspiracy, trust, agreement, or contract is intended to operate in restraint of lawful trade, or free competition in law- ful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manu- facture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged in the importation of goods or any commodity from any foreign coimtry in violation of this section of this act, or who shall com- bine or conspire with another to violate the same, is guilty of a misdemeanor, and, on conviction thereof in any court of the United States, such person shall be fined in a sum not less than one hundred dollars and not exceeding five thousand dollars, and shall be further punished by imprisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months. Sec. 74. That the several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain vio- lations of section seventy -three of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts under the direction of the Attorney- General, to institute proceedings in equity to prevent and re- strain such violations. Such proceedings may be by way of peti- tions setting forth the case and praying that such violations shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and de- termination of the case; and pending such petition and before final decree, the court may at any time make such temporary re- straining order or prohibition as shall bo deemed just in the premises. Sec. 75. That whenever it shall appear to the court before 522 Trust and Other Combinations [§ 608. which any proceeding under the seventy-fourth section of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not ; and subpoenas to that end may be served in any district by the marshal thereof. Sec. 76. That any property owned under any contract or by a-ny combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section seventy-three of this act, and being in the course of transportation from one state to an- other, or to or from a territory, or the District of Columbia, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law. Sec. 77. That any person who shall be injured in his business or property by any other person or corporation by reason of any- thing forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. Received by the President, August 15, 1894. {Note 1)1) the Department of State. — The foregoing act having been presented to the President of the United States for his approval, and not having been returned by him to the house of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval.) Act of July 24, 1897, § 34. ****** * * And provided further, that nothing in this act shall be construed to repeal or in any manner affect the sections numbered 73, 74, 75, 76 and 77 of an act entitled "An act to reduce taxation, to provide revenue for the govern- ment, and for other purposes," which became a law on the twen- ty-eighth day of August, 1894. APPENDIX A. THE SAFETY APPLIANCE ACTS. An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. Be it enacted by tlie Senate and House of Representatives of the United States of America in Congress assembled, that from and after the first day of January, eighteen himdred and ninety- eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to rim any train in such traffic after said date that has not a sufficient number of cars in it so equipped wdth power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped w'ith couplers coupling automatically by impact, and which can be uncoupled M^thout the necessity of men going between the ends of the cars. Sec. 3. That when any person, firm, company, or corporation engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the pro- visions of section one of this act, it may lawfully refuse to re- ceive from connecting lines of road or shippers any cars not equipped sufficiently, in accordance with the first section of this act, with such poM'cr or train brakes as will work and readily in- terchange with the brakes in use on its own cars, as required by this act. 523 524 Safety Appliance Acts. Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, imtil otherwise ordered by the Inter- state Commerce Commission, it shall be imlawful for any rail- road compan}' to use any ear in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. Sec. 5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to des- ignate to the Interstate Commerce Commission the standard height of drawbars for freight ears, measured perpendicular from the level of the tops of the rails to the centers of the draw- bars, for each of the several gauges of railroads in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty cars and loaded cars. Upon their determination being certified to the Interstate Commerce Commission, said commission shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Com- merce Commission to do so, before July first, eighteen himdred and ninety-four, and immediately to give notice thereof as afore- said. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for. Sec. 6. (As amended April 1, 1806) That any such common carrier using any locomotive engine, running any train, or haul- ing or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such viola- tion, to be recovered in a suit or suits to be brought by the United States District Attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed ; and it shall be the duty of such district attorney to bring such suits upon verified informa- tion being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Com- mission to lodge with the proper district attorneys information of any such violations as may come to its knowledge : Provided, Safety Appliance Acts. 525 That nothing in this act contained shall apply to trains com- posed of four-wheel cars or to trains composed of eight-wheel standard logging ears where the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs. Sec. 7. That the Interstate Commerce Commission may from time to time upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of this act. Sec. 8. That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk therebj^ occasioned, although continuing in the employment of such carrier after the unlawful use of such locoinotive, car, or train had been been brought to his knowledge. Public No. 113, approved March 2, 1893, amended April 1, 1896. Note. — Prescribed standard height of drawbars: Standard- gauge roads, 34^ inches; narrow-gauge roads, 26 inches; max- imum variation between loaded and empty cars, 3 inches. APPENDIX B. An Act to amend an act entitled ' ' An act to promote the safety of em- ployees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving- wheel brakes, and for other purposes, ' ' approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the provisions and requirements of the act entitled "An act to pro- mote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes," approved March second, eighteen hundred and ninety-three, and amended April first, eighteen liundred and ninety-six. shall be luild to apply to common carriers by rail- roads in the territories and the District of Columbia and shall 526 Safety Appliance Acts. apply in all cases, whether or not the couplers brought together are of the same kind. make, or type; and tlie provisions and re- quirements hereof and of said acts relating to train brakes, auto- matic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and sim- ilar vehicles used on any railroad engaged in interstate com- merce, and in the territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains, cars, and locomo- tives exempted by the provisions of section six of said act of March second, eighteen hundred and ninety -three, as amended by the act of April first, eighteen hundred and ninety-six, or which are used upon street railways. Sec. 2. That whenever, as provided in said act, any train is operated with power or train brakes, not less than fifty per cen- tum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated to- gether with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be operated with power or train brakes which must have their brakes and operated as aforesaid; and failure to comply Avith any such requirement of the said Interstate Commerce Commission shall be subject to the like pen- alty as failure to comply with any requirement of this section. Sec. 3. That the provisions of this act shall not take effect until September first, nineteen hundred and three. Nothing in this act shall be held or construed to relieve anj^ common car- rier, the Interstate Commerce Commission, or any United States district attorney from any of the provisions, powers, duties, lia- bilities, or requirements of said act of March second, eighteen hundred and ninety-three, as amended bj^ the act of April first eighteen hundred and ninety-six; and all of the provisions, powers, duties, requirements, and liabilities of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen himdred and ninety-six, shall, except as specifically amended by this act. apply to this act. Public, No. 133, approved March 2, 1903. Interstate Carriers IMust Report Accidents, 527 APPENDIX C. An act requiring common carriers engaged in interstate commerce to make full reports of all accidents to the Interstate Commerce Commission. Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, It shall be the duty of the general manager, superintendent, or other proper officer of every common carrier engaged in interstate commerce by rail- road to make to the Interstate Commerce Commission, at its of- fice in Washington, District of Columbia, a monthly report, luider oath, of all collisions of trains or where any train or part of a train accidentally leaves the track, and of all accidents which may occur to its passengers or employees while in the service of such common carrier and actually on duty, w^hich re- port shall state the nature and causes thereof, and the circum- stances connected therewith. Sec. 2. That any common carrier failing to make such report within thirty days after the end of any month shall be deemed guiltj^ of a misdemeanor and, upon conviction thereof by a court of competent jurisdiction, shall be punished by a fine of not more than one hundred dollars for each and every offense and for every day during which it shall fail to make such report after the time herein specified for making the same. Sec. 3. That neither said report nor any part thereof shall be admitted as evidence or used for any purpose against such railroad so making such report in any suit or action for dam- ages growing out of any matter mentioned in said report. Sec. 4. That the Interstate Commerce Commission is author- ized to prescribe for such common carriers a method and form for making the reports in the foregoing section provided. Public No. 171, approved March 3, 1901. APPENDIX D. An Act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon. Be it enacted by the Senate and House of Representatives of the Ignited States of America in Congress assembled. That the provisions of this act shall apply to any common carrier or car- 528 Act to Limit Hours of Service riers, their officers, agents, and employees, engaged in the trans- portation of passengers or property by railroad in the District of Columbia or any territory of the United States, or from one state or territory of the United Etates or the District of Colum- bia to any other state or territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term ".employees" as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train. Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier, shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty ; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and sta- tions continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and sta- tions operated only during the daytime, except in case of emer- gency, when the emploj^ees named in this proviso may be per- mitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three daj^s in any week: Provided further, The Interstate Commerce Commission may after full hearing in a particular case and for good cause OF Employees of Interstate Carriers. 529 shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case. Sec. 3. That any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or re- main on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon satis- factory information being lodged with him; but no such suit shall be brought after the expiration of one year from the date of such violation ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attor- neys information of any such violations as may come to its knowledge. In all prosecutions under this act the common car- rier shall be deemed to have had loiowledge of all acts of all its officers and agents: Provided, That the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God ; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen : Provided further, That the I^rovisions of this act shall not apply to the crews of wrecking or relief trains. Sec. 4. It shall be the duty of the Interstate Commerce Com- mission to execute and enforce the provisions of this act, and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this act. See. 5. That this act shall take effect and be in force one year after its passage. Public No. 274, approved March 4, 1907, 11.50 a. m. APPENDIX E. An act to promote the safety of employees on railroads. (Known as the Ash Pan Act.) Be it enacted by tlie Senate and House of Representatives of t}ie United States of America in Congress as.sembled, That on 530 Ash Pan Act. and after tlie first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier en